HomeMy WebLinkAboutContract 44844 cffy SECREtARY I A,
CONTR=NO.L Ltlxqq
TRUST FUND EVENT SUPPORT CONTRACT
This TRUST FUND EVENT SUPPORT CONTRACT ("Agreement"')nt is made and.
catered by and between the CITY 'F FORT WORTH (the "City"), a h rule icipali
organized under the laws of' -the State of Texas AMERICAN PAINT HORSE
ASSOCIATION CIA) ("Company").
RECITALS
The City and Company hereby agree that the following statements are true and correct
d constitute the basis upon which the City and Company have entered into this Agreement'.
A, Company operates the American Paint Horse Assoc at on World
Championship Show (the "Event") to he held on November 6— 16, 2013, which specific Event
is held not more than one time n ' "c as or an adjoining state in any year.
B. Company conducted a highly-competitive, Multi-state, site-selection process
pursuant to an application by the Cit y to evaluate the proper venue to conduct-the Event and has
chosen the Will Rogers, Memorial Center to serve as the sole venue for the Event.
C. TEX. REv. C v. STET. art. 51910.l 4 § 5C,,, as amended as it may he amended from
time-to-time, the "Act") authorizes the Texas Comptroller of Public Accounts ("Comptroller"),
to establish the Everts Trust Fund (the "Fund"). In accordance with the Act, the City, as the
endorsing municipality, submitted a request to the Comptroller for participation in the Fund,
which included, among other things, the submission of an economic impact study commissioned
by Company.
D. Company engaged Gerald L. Grotta, Ph.D. of gotta Marketing Research
("Grotta") to prepare an Analysis of the Economic Impact of the American Paint Horse
Association World Championship Show for purposes of submitting, to 'the Comptroller to
determine eligible Texas state tax revenues generated by the Events.
E. ':"he Comptroller has, pursuant to subsection h) of the .pct, analyzed the
incremental 'increase in certain sales and use, hotel occupancy and mixed beverage tax receipts to
he collected by or on behalf of the City and the State of Texas directly attributable to the
preparation for and presentation of the Event and related activities,
F. Based on its analysis, the Comptroller, by letter to the City dated July 12, 2 l 3,
has determined that it will deposit $83,925.00 of State funds into the Fund if matched by
13,4291.00 in remittances by or on behalf of the City, for, a total Fund amount of $97,354.00.
As an endorsing municipality under the Act, the City has or Will remit $13,429.00 to the
Comptroller for deposit into the Fund. Funds deposited into the Fund may be used by the City to
fulfill its obligations, der an evert support contract,, as defined in the Act, governing the Event.
This agreement is intended to serve as such event support contract.
Fni;;ICIAL RKORD
OFFICIAL RIECORD
Trust Fund Event Support Contract City of Fort Worth and American Paint Horse Association P + I of 10
CR TJ WORTH IX
tFl
CE
G, The Act provides, that the money in the Fund may be used for ".- the payment of
costs relating to the preparations necessary or desirable for the conduct of the event and the
payment of costs of conducting the event, including improvements or renovations to existing
facilities or other facilities and costs of acquisition or construction of new facilities or other
facilities" (the "Perm I*ssl*blie tJ ease').
H. The obligations of the Parties under the Agreement are set forth in Section, 5 and
include a plan jointly prepared by the Parties that outlines the Penm*ssi*ble Uses that the Parties
agree wi
*thout, lim n
itatio , necessary for the City to provide incremental services necessary for
are,
the Event as well, as other costs necessary for City to host the Event and for Company to conduct
the Event, which said plan is attached hereto as Exhibl"t "A" and incorporated herein for all
purposes (the "Event Plan").
1, Pursuant to Resolution No. 3513-08-2007 adopted on August 14, 2007, the City
Council of the City has authorized the City Manager to negotiate agreements, that promote maj�or
sporting or athletic events benefitting the City and secured, 'in part, on account of the Fund and
the provisions of the Act.
NOW, THERFFORE, for mid in consideration of the premises, undertakings, and
mutual covenants of the parties, set forth herein and other good and valuable consideration, the
receipt and sufficiency 01 which is hereby acknowledged, the parties agree as follows:
AGREEMENT
191 RECITALS,
The parties agree that the recitals set forth above in this Agreement are true and correct,
and the representations, covenants, and recitations set Toth therein are made a part hereof for all
purposes.
2. E .M.T
This Agreement is effective as of July 12, 2013 and shall remain in full force and effect
until the later of(i) December 31, 2013 or (ii) the date as of which all funds have been disbursed
S
in accordance with the Act and with this Agreement, unless, terminated earlier pursuant to the
terms of'this Agreement.
I APPLICATION FOR EVENT TRUST FUND DISBURSEMENT'.
The City has previously applied to the Comptroller for the creation of one or more Events
I
Trust Furias (each an"ETF") for the Event under the provisions of Act,
4. TRUS'FUND DEPOSIT,
Trust Fund Event Supplort Contract
City of Fort Worth and American Paint Horse Association Page 2 of 10
In consideration of Company's selection of Will Rogers, Memorial Center as the sole site
for the Event, the City will remit a total of$13,429.00 for the Event to the Comptroller,,, as, set
forth in the July 12, 2013, letter that was issued by the Comptroller estimating the fficrementai
increase in tax revenue under the Act as a result of the Event and setting forth the contribution to
the Fund by the City (the "City Remittance"). The City Remittance is intended to trigger the
State of Texas contribution to the ETF(s) under the terms of the Act. The City Remittance plus
the contributions, by the State of Texas to the ET s) in accordance with the Act shall be referred
to herein as the "Total Fund Amount"
5. OBLIGATIONS OF THE PARTIES.
a. Comp y- Company is, obligated to hold and conduct the Event at Will
Rogers, Memorial Center on November 6 — 161 2013, Company also agrees that the covenants
and promises made in thi's,Agreement, including, but not limited to., the Company's, reimbursable
expenses set forth in the proposed,Event Plan are necessary for conductig the Event.
b. City.
(1) The City is obligated to host the Event and reimburse the Company for the
actual expenses related to the Event, as permitted by the Act and consistent with
the Pe rmissible uses, as, outlined in the Event Plans in accordance with the terms
of this Agreement, provided that
(1) the expenses are eligible for payment by the ET'F program,-,
(2) the Company submits proof of-the Company's expenses set forth in
the Event Plan to the full satisfaction of the City and the
Comptroller; and
(3) the combined amount of the funds claimed for reimbursement by
the City and the Company do not exceed the amount authorized for
reimbursement by the Comptroller.
(ii) The City shall be responsible for distributing the Total Fund Amount to
reimburse the Company for the expenses set forth in the Event Plan.
(Iii) The Company shall provide invoices to the City for expenses incurred.
The Company shall provide any supporting expense documentation as required by
the City or as requested by the Comptroller. Upon approval, of payments by the
Comptroller, the City will make reimbursement payments to the Company upon
receiving payment from the Comptroller. The City will be responsible for dealing
with the Comptroller with respect to disbursements from the Fund.
(iv) The reimbursements set forth 'in this Agreement are limited to the
ai fr
maximum amount av He from and approved for eventual distribution om the
ETF established for this Event. Under no circumstances shall the City be
Trust Fund Event Support Contract
city of Fort Worth and American Paint Horse Association Page 3 of 10
. .............
obligated to Company for more than that maximum sum when, and if, received
from the ETF. The Company shall not seek reimbursement from the City for any
costs not distributed by the Comptroller from the ETF established for this Event.
(v) Notwithstanding anything to the contrary, City may withhold all
distribution of payments to Company under this section if Company has any
outstanding obligations owed to the City pursuant to any contract with the City.,
If the City withholds any fimds for this reason, then the City shall provide a
written statement to Cori . any, detailing the outstanding obli at* d-It
p g ions. k�omplany
shall have thirty (30) days from the date it receives City's written statement to
cure, any such outstanding obligations ("Cure Period"). The Cure Period can be
extended by written agreement of the Parties. Notice shall be as prescribed in
Section 11. If Company cures its outstanding obligations within the Cure Period,,
then the City will make distributions from the Total Fund Amount in accordance
with the procedures set forth in in this Section which procedures will begin, anew
on the date Company cures its outstanding obligations to the City. If Company
fails to cure its obligations, within the Cure Period, then this Agreement shall
automatically terminate and Company hereby waives it right to receive any
reimbursement or distribution from the Total Fund Amount under this Agreement.
6, COMMITMENT OF COMPANY.
In consideration of the benefits set forth herein, Company will use commercially
reasonable efforts to conduct the Event during the Ten-n at 'Will Rogers Memorial Center.
Company Will also cooperate With the City in documenting costs incurred by Company for the
IL-Y-
Event to evidence the Permissible Uses., Company will pay the City an amount eq City
to the C
Remittance contemporaneously upon the City's distribution to Company from the Total Fund
Amount in accordance with Sect-Ion 5 above.
7, DOCUMENTATION.
Company hereby certifies and warrants that all documentation submitted to the City fully
and accurately represents the actual costs incurred by Company in hosting the Event and is
consistent with the Pen-nissible Uses under the Act. Company shall be liable to the City for any
damages resulting from a breach of this section. This section, shall survive the expiration or
termination of this Agreement*
81, NON'-EXCLUSIVE REMEDIES.
No remedy herein conferred or reserved is intended to be exclusive of any other available
remedy or remedies, and each and every such remedy shall be cumulative and shall be in
addition,to every such remedy given under this Agreement or now or hereafter exi'st* g at law or
in equity or by statute. It is expressly agreed that the remedy at law for breach by a party of its
0
obl* 1 in view of the complexities and uncert inties in
igations hereunder may be inadequate a
measuring the actual damages that would be sustai*ned by reason of either party's failure to
comply fully with each of such obligations. Accordingly, the obligations of each party hereunder
Trust Fund Event Support Contract
City of Fort Worth and American Paint Horse Association Page 4 of 10
............. .......................................................................................................-,—
are expressly made enforceable by specific performance. If it becomes necessary for any party
to this Agreement to bring suit to enforce or interpret the provisions hereof, the prevailing party
to such suit shall be entitled to its reasonable and necessary at-tomey's fees and costs.
9. TERMINATION FOR CAUSE.
- - The City may terminate this Agreemen t if Company falls to comply with any term,
provision, or covenant of this Agreement in any material respect. If an event of default occurs,
City shall give wn*ften notice that describes the default in reasonable detail to the Company. The
Company must cure such default within thirty (3 calendar days after receiving notice from
City, unless otherwise agreed to in writing by the parties.
10. SEVERABILITY,
If any provision of this Agreement is held to be illegal, invalid, or unenforceable under
present or future laws, the legality, validity, and enforceability of the remaining provisions of
this Agreement shall not be affected thereby, and this Agreement shall be liberally construed so
the i
as to carry out the ntent f"ti parties to it.
11. NOTICES,
Any notice, request, or other communi,cation required or permitted to be given under this
Agreement shall be given 'in VM'tin g by delivering it against receipt for it,by depositing it with an
overnight delivery service or by depositing it in a receptacle maintained by the, United States
Postal Service, postage prepaid, registered, or certified mail, return receipt requested, addressed
to the respective parties at the addresses shown herein (and if so given, shall be deemed given
when mailed). Notice sent by any other manner shall be effective upon actual receipt by the
party to be notitiec.i. Actual notice, however and from whomever given or received, shall always
be effective when received. Any party's address for notice may be changed at any time and from
time to time., but only after thirty (3 0) days' advance written notice to the other parties and shall
be the most recent address furnished in writing by one party to the other parties. The giving of
notice by one party which is not expressly required by this Agreement will not obligate that party
to give any future notice.
City: Com pang'
.
City Of Fort Worth American.Paint Horse Association
Attn.- Director, Public Events Dept. Attn: Billy Smith,Executive Director
1000 Throckmcarton P.O. Box 961023
Fort Worth, TX 761 2 Fort Worth, TX 76161
with copi*es too.
the City Manager and
-the City Attorney
at the same address
Trust Fund Event Support Contract
City of Fort Worth and American Paint Horse Association Page 5 of 10
............_....... ..........................
IZ. COMPLIAN'CE WITH LAWS ORDINANCES. RUL ES AND REGULATIONS,
This Agreement is subject to all applicable federal, state, and local laws ordinances rules
and regulations, including, but not limited all provisions of-the City's Charter and ordxnanccs.
as amended; provided, that future Charter or ordinance amendment shall not be
deemed to modify, amend, or negate any provision of this Agreement.
130, GOVERNMENTAL POWERS,
It is understood that by execution of this Agreement, the City does not waive or surrender
y of its governmental powers or immun ities.
14$ NO WAIVER.
The failure of any party to insist upon the performance of any tern or provision of this
Agreement or to exercise any right granted hereunder shall not constitute a weer of that party's
right to insist upon appropriate performance ce r to assert any such right on any future occasion,
15# VENUE AND JURISDICTION,
If any action, whether real or assented, at law car, in equity, arises on the basis of any
prevision of this Agreement, venue for such actin shall lie in state courts heated in Tarrant
County, Texas or the United States District Court for the Northern District of Texas—Fort Worth.
Division. This Agreement shall he construed in accordance with the laws of the State of Texas.
16, NO THIRD,-PARTY RIGHTS.
The provisions and conditions of this Agreement are solely for the benefit of the City and
Company and any lawful assign or successor of Company, and are not intended to create any
rights, contractual. or otherwise, to any other person or entity,
7, FORCE MAJEURE.
it is expressly understood and agreed by the parties to this Agreement that if the
performance of any obligations hereunder is delayed by reason of war, civil commotion, acts of
God, inclement weather, or other circumstances 'that are reasonably beyond the control of the
party obligated or permitted under the terms, of this Agreement to do or, perform the same,
regardless of whether any such ci,rcurnstance is similar to any of those enumerated or not, the
party so obligated or permitted shall he excused from doing or performing the same ding such
period of delay, so that the time period applicable to such performance shall he extended for a
period of time equal to the period such party was delayed.
18. INTERPRETATION.
Trust Fund Event Support Contract
City of Fort Worth and American Paint Horse Association Page 6 of 10.
In the event of any dispute over the meaning or application of any provision of this
Agreement, this Agreement shall be Interpreted fairly, and reasonably,, and neither more strongly
for or against any party, regardless of the actual drafter of this Agreement.,
19. CAPTIONS.
Captions and headings used in this Agreement are for reference purposes only and shall
not be deemed a part of this Agreement.
20. ENTIRETY OIL" AGE MENT.
This Agreement, including any exhibits attached hereto and any documents, incorporated
herein, by reference, contains the entire understanding and agreement between the City and
Company, and any lawful assign and successor of Company, as to the matters contained hereffi.
Any prior or contemporaneous oral or written agreement is hereby declared null and void to the
extent in conflict with any provision of this Agreement. This Agreement shall not be amended
unless executed in writing by all parties.
21. COUNr fERPARTS.:
This Agreement may be executed in any number of counterparts with the same effect as
if all of the parties had signed the "am-e document. Such executions may be transmitted to the
other party by digital scan or facsimile and such scanned or facsimile execution shall have the
full force and effect of an original signature. All fully executed counterparts, whether original
executions or scanned or facsimile executions or a combination., shall be construed together and
shall constitute one and the same agreement.
22. AMENDMENT.
No amendment,, modification, or alteration of the terms of this Agreement shall be
binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by
the Parties hereto.,
23. INDEMNIFICATION AND RELEASE.
a. COMPANY COVENANTS AND AGREES TO AND DOES HEREBY
INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY
FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS,,
ACTIONS,, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES
(INCLUDING, BUT NOT LIMITED TO, ATTORNEY9S FEES AND COSTS OF'
DEFENSE),, PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/O�R SUITS
OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR
PROPERTY OR MONETARY LOSS, OR OTHER HARM FOR WHICH RECOVERY OF
DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER
REAL OR ASSERTED, ARISING OUT OF, IN CONNECTION WITH, OR RESULTING
FROM ANY ACT, ERROR, OR OMISSION OF COMPANY AND ITS SPCCIVE
Trust Fund Event Support Contract
City of Fort Worth and American Paint Horse Association Page 7 of 10
............... ................ ..........
OFFICERS, AGENTS, EMPLOYEES, DI RECTO , MEMBERS, PARTNERS,
REPRESENTATIVES IN CONNECTION WITH THE EXECUTION9 PERFORMANCE,
ATTEMPTED PERFORMANCE,OR NONPERFORMANCE OF'THIS AGREEMENT.
IF ANY ACTION OIL PROCEEDING SHALL BE BROUGHT BY O
AGAINST THE CITY IN CONNECTION T H ANY SUCH LIABILITY OR CLAIM,
COMPANY, O NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR
PROCEEDING, AT COMPANY'S EXPENSE, BY OR THROUGH ATTORNEYS
REASONABLY SATISFACTORY TO CITY.
C. IT IS AGREE D WITH RESPECT TO ANY LEGAL LIMITATIONS NOW
OR HEREAFTER IN EFFECT D AFFECTING CTIN THE VALIDITY Y OR
ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATION UNDER THIS
SEC"T"ION 23 SUCH LEGAL LIMITATIONS ARE MADE A PART OF THE
INDEMNIFICATION OBLIGATION SHALL OPERATE TO AMEND THE
INDEMNIFICATION OBLIGATION TO THE MINIMUM EXTENT NECESSARY TO
BRING THE PROVISION INTO CONFORMITY WITH THE REQUIREMENTS OF
SUCH LIMITATIONS, AND AS SO MODIFIED, THE E I ICA T'IO
OBLIGATION SHALL CONTINUE IN FULL .FORCE AND EFFECT.
d. Company agrees to d shall release City from any and all liability for any
damage or loss sustained or caused by Company in connection with or incidental to performance
der this Agreement..
e. This section shall survive the expiration or termination of this, Agreement.
24, AUDIT.
Company agrees that City and its internal ...editor will have the right to audit, which shall
include, but not be limited to, the Wight to complete access to and the right to examine, the
financial and business records of Company that relate to this Agreement, including, but not
limited tea, all necessary hooks, papers, documents, records,, and personnel, (collectively
"Records in order to determine compliance with this Agreement. The Company shall make all
Records available to City at 1000 ,hoc Orton Street, :fort Worth, Texas or at another location
in City acceptable to both parties, within thirty 3 days after notice by City and shall otherwise
cooperate fully With City during any audit. Notwithstanding anything to the contrary herein, this
section shall survive expiration on or earlier termination of this Agreement.
250 ASSIGNMENT.
Neither party hereto shall assign or, transfer 'ts interest herein without prior written
consent of the other party, and any attempted assignment or transfer, of all or any part hereof
them such prior written consort shall be void., This Agreement shall be binding upon and
shall inure to the benefit of City and Company and its respective successors and permitted
assigns.
'rust Puna Event Support Contract
City of Fort Werth and American Paint Horse Association Fags 8 of t
._.... __.. ._...
26. AUTHORIZATION.
By executing this Agreement, Company's agent affirms that he or she is authorized by
the Company to execute this Agreement and that all representations made herein with regard to
Company's identity, address, and legal status (corporation, partnership, individual, dba, etc.) are
true and correct.
27, REVIEW OF COUNSEL.
The Parties, acknowledge that each Party and its counsel have reviewed and revised this
Agreement and that the normal rules of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation of this Agreement
or exhibits hereto.
EXECUTED to be EFFECTIVE as of the date set forth Section 2 of this Agreement-.
CITY OF FORT WORTH: AMERICAN PAINT HO E ASSO ION
BY:
Susan Alams Ily Smith
Assistant City Manager xecutive Di cto�r
APPROVED AS TO FORM AND LEGALITY-.
Ile
A§Sia4pt(Ity Attorney
/
A E T
TT4E ,
Mjry
City Secretarl
y
OFFICIAL RECORD
CITY SECRETARY
Trust Fund Event Supiport Contract L!FTLaWORTH11 TX
city of Fort Worth and American Paint Horse Association 10
EXHIBIT "A"'
EV ENT PLAN
This Event Plan is intended to provide the basis fo�r reimbursement, to the fullest extent provided
by law or regulation, of costs relating to the preparations necessary or desirable for the conduct
of the Event and the payment of costs of conducting, the Event, 'including improvements or
renovations to existing facilities or other facilities and costs, of acquisition or construction of new
facilities or other facilities.
Specifically, the City and Company agree that the following costs 'incurred and related to the
Event are appropriate for reimbursement under the Act as Permissible Uses to be reimbursed by
the Fund:
CoLupany's Expenses
• Advertising and Promotion for the Event
• Awards
• Purse Payouts
Trust Fund Event Sa � ontr p City of Fort Wortb nd American Plaint Horse Association Page 10 of 10