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HomeMy WebLinkAboutContract 45444 TIRUST' FUND E VENT SUPPORT CONT I I NO* CITY SECRETARY- i This TRUST FUND EVENT SUPPORT CONTRACT ("Agreement") 'S made and entered by and between the CITY OF FORT WORTH (thy' "City"), a home-rule municipality organized under the laws of the State of Texas and REGION ARABIAN HORSE RECITIALS The City and Company hereby by agr e that the following statements are true and correct and constitute the basis upon which the City and Company have entered into this Agreement: A� Company operates the REGION 9 AHA CHAMPIONSHIP AND SPORT HORSE SHOW (the "Event"), which specific vent held not more than one time in Texas or an adjoining state in any ,year. B. Company conducted a highly-competitive, multi-Mate, s t -selection process pursuant to, an application by the City to evaluate the proper venue to induct the went and has chosen the Will Rogers Memorial Center to erve as the sole venue for the Event in a r g,ion composed of Texas, and one or more adjoining states. C, Company has engaged Gerald L. Gr tta, Ph.D. of Grotta Narrating Research ("'Grotta") to prepare an Analysis of the Economic Impact of the Event for purposes of submitting t the Texas Comptroller of Public Accounts (the `�`C mptroller" to deterrn n.e eligible Texas state tax revenues generated by the Event. D. TEX. RE v. Ci v. STA.rr. art. 5 190.14, § 5C, as amended as it may be amended from time to time) (the "Act") authorizes the Comptroller to es,tabi1 sh the vent Trust Fund (the "Fund"). Funds, deposited into the Fund may be used by the City to fulfill 'its obligations under an event support contract, as defined in the Act, governing the Event. This Agreement is intended to serve as such event support contract. E. The Comptroller has, pursuant to subsection .b of the Act, analyzed the incremental increase gin certain sales and use, hotel occupancy and mixed beverage tax receipts to be 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. Biased on its analysis, the Comptroller, by letter to City dated February 13, 2014, has determined that it will deposit $39,109.00 of State funds 'into the Fund if matched by $6,258.010 in remittances by or on behalf of the City, for a total Fund amount of$45,367.00. As an endorsing municipality under the Act, the City has or will remit $6,258.00 to the Comptroller for deposit into the Fund. Funds deposited into the Fund may be used by the City t o fulfill its obligations under an event support contract, as defined in the Act, governing the event. This Agreement is 'intended to serve as such event support contract. AEI V E 0 Mg OFFICIAL RECORD CITY SECRSTARY ' Treat Fend Event Support Contract with th Region 9 Arabian F orse Association FT WORTH,TX Page The Act provides that the money in the Fund may be used for "...the payment of costs relating to the preparations necessary 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 "Permissible Uses"). H* The oblI gatI ions e Parties u d er the Agemre se forth Section 5 which the Parties agree are, without limitation, necessary for the City to provide incremental 0 services, necessary for the Event as well as other costs necessary for City to host the Event and for Company to conduct the Event. L 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 events benefitting the City and secured, "in part, on account of the Fund and the provisions of the Act. NOW, THEREFORE,, for and 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 of which is hereby acknowledged, the parties agree as follows: AGREEMENT 1. RIE,CITALS. The parties agree that the recitals set forth above in this Agreement are true and. correct, and the representations, covenants, and recitations, set forth therein are made a part hereof for all purposes. 2. TERM. This Agreement is effective as of February 13, 2014 and shall remain in full rorc,e and effect until the later of (1) December 31, 2014 or (11) the date as of which all funds have been disbursed in accordance with the Act and with this Agreement, unless terminated earlier pursuant to the terms of this Agreement. 3, APPLICATION FOR EVENT TRUST FUND DISBURSEMENT, The City has previously applied to the Comptroller for the creation of one or more Events Trust Funds (each an"ETF") for the Event under the provisions of Act. 4,@, TRUST FUND DEPOSIT. 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 $6,258.00 for the 'Event to the Comptroller, as set forth in the February 1.3, 2014, letter that was issued by the Comptroller estimating the incremental 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 Trust and Event Support Contract with Region 9 Arabian Horse Association Page 2 of'9 Remittance plus, the contributions by the State of Texas to the ET ) in accordance with the Act shall be referred to herein as the "Total Fund Amount." 5, GENERAL OBLIGATIONS OF THE PARTIES. a. far Company is obligated to hold and conduct the Event at the Will Rogers Memorial Center on May 28-3,1, 2014. Company also agrees that the covenants and promises, made in this Agreement, including, but not limited to, the Company's expenses set forth in this Section are necessary to prepare for and conduct the Event. h. . (i) The City is obligated to host the Event., (11) The parties recognize that the Company is the Event expert and has the structure and mechanisms in place to properly and adequately perform the functions necessary to prepare for and conduct the Event. In addition to hosting the Event, the City's obligation under this Agreement shall be to pay the Company for the necessary, reasonable, and actual expenses, required to prepare for and conduct the Event as a means to reimburse the Company to help cover the costs of the Event in areas, of which the City lacks expertise. These expenses may include, but are not limited to, the following: (A) Advertising and marketing promotions of the Event, including printing and production costs; (13, Awards distributed at the Event-, (C) Cost of specialized arena tooting u ct for competition, (D) Acquisition of cattle to be used 'in competition and practice as set forth In Company's rules,, (E) Rental cost of equipment for the Event; (F) Officials,judges and, staff, as required-, (G) Security and paramedics,* A (H) On site veterinarian' an 1) Consultant fee to assist with the request and administration to establish an event support fund. (1*11*) The City shall be responsible for distributing the Total Fund Amount to reimburse the City and Company for the expenses set forth in Sect*on 5, 11 with the Company receiving reimbursement for actual expenses incurreu by the Company up to a maximum of 75% of the Total Fund Amount. (ivy The Company shall provid 1 1 1 d�e nvoices to the City for expenses it for the Event. The Company shall provide any supporting expense documentation as required by the City or as requested by the Comptroller to the full satisfaction of both the City and the Comptroller for the Event. The City will make payment(s) to the Company within thirty (30) days after receipt of such payment from the Comptroller in accordance Trust Fund Event support Contract wiith Region 9 Arabian,Horse Association Page 3 of 9 with the terms of this Agreement. The City will be responsible for dealing with the Comptroller with respect to disbursements, from the 'Fund and distributing the Total Fund Amount in accordance with the terms of this Agreement. (v) Any payments to the Company as set forth 'in this Agreement are limited to the maximum amount available from and approved for eventual distribution from the ETF established for the Event and must be eligible for payment by -the ETF program. Under no circumstances shall the City be obligated to Company for more than that maximum sum when, and 'if, received from the ETF for -the Event. The Company shall not seek, and will not be entitled to, payment from the City for any costs, not distributed by the Comptroller from the ETF established for the Event. A I "ni (vi) Notwithstanding, anying 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 funds for this reason., then the City shall provide a, written statement to Company, detailing the outstanding obligations. Company shall have thirty (30), days from -the date it receives City's written statement to cure any such outstanding obligations (" Cure Perl"od"). 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 Term at, Will Rogers Memorial Center. Company will also cooperate with the City in documenting costs incurred by Company for the Event to evidence the Permissible Uses. Company will pay the City an amount equal to the City Remittance contemporaneously upon the City's distribution to Company from the Total Fund Amount in accordance with Section 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 I consistent with the Pen- issible Uses under the Act. Company shall be liable to the City f or any damages resulting from a breach of this section. This section shall survive the expiration or termination of this Agreement. Trust Fund Event Support Contract with Region 9 Arabian Horse Association Page 4 of 9 8, 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 I*n addition to every such remedy given under this Agreement or now or hereafter existing at law or In n equity or by statute. It 'is, expressly agreed that the remedy at law for breach by a party of its obligations hereunder may be inadequate in view of the complexities and uncertainties in measuring the actual damages that would be sustained by reason of either party's failure to comply fully with each of such obligations. Accordingly, the obligations of each party hereunder 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 attorney's fees and costs. 94, TERMINATION FOR CAUSE. The City may terminate this Agreement if' Company falls to comply with any term, provision, or covenant of this Agreementin any material respect. If an event of default occurs, City shall give written notice that describes the default in reasonable detail to the Company. The Company must cure such default within thirty (30) 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 as to carry out the intent of the parties to it. 11, NOTICES. Any notice, request,, or other con-imunication required or perm-fitted, to be given under this Agreement shall be given in writing 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 mai led). Notice sent by any other manner shall be effective upon actual receipt by the party to be notified. 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 (30) days' advance written notice to the other parties and shall be the most recent address turnished in writing by one party to the other parties. The gi,ving, of notice by one party which is not expressly required by this Agreement will not obligate that party to give, any future notice. Trust Fund Event Support Contract with Region 9 Arabian Horse Association Page 5 of 9 Y. CITYA REGION 9 ARABIAN HORSE a ASSOCIATION. City of Fort Worth Attn- Margo Shad Cross Attn: Director, Public Events Dept. 30824 Buck Lane 1000 T'hrockmorton Bulverde, TX 78163 Fort Worth, TX 76102 0, with cop iev to�, the City Manager and the City Attorney at the same address 12. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS. This Agreement is subject to all applicable federal, state, and local laws, ordinances, rules and regulations, 'including, but not limited to, all provisions of the City's Charter and ordinances, as amended; provided, however, that any future Charter or ordinance amendment shall not be deemed to modify, amend, or negate any provision of this Agreement. 13. GOVERNMENTAL POWERS. It is understood -that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or 'immunities,. 14. NO WAIVER, The failure of any party to insist upon the performance of any term or provision of-this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's right to insist upon appropriate'performance or to assert any such right on any future occasion. 1,54 VENUE AND JURJSDICTION,- If any action, whether real or asserted, at law or in equity, arises on the basis of any for such action lie shall * I Tarrant provision of this Agreement, venue I i in state courts located in Ta ant County, Texas or the United States District Court fo�r the Northern District of Texas,— Fort Worth Division. This Agreement shall be 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. 17. FORCE MAJEURE. 1'rust Fund Event Support Cointract with Region 9 Arabian Horse Association Page 6 of 9 It is expressly understood and agreed by the parties to thi's Agreement that if the performance of any obligations hereunder is delayed by reason of war, civil con-imotion, acts of I 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 circumstance is similar to any of those enumerated or not, the party, so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such performance shall be extended for a period of time equal to the period such party was delayed. 18, INTERPRETATION. 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. 190 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 OF AGREEMENT. This Agreement, including any exhibits, attached hereto and any documents incorporatect 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 herein. 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. 2 1. COUNTERPARTS. This Agreement may be executed In any number of counterparts with the same effect as if all of the parties had signed the same document. Such executions, may be transmitted to the other party by digital scan or facsimile and such scanned or facsimide execution shall have the full force and effect of an original signature. All fully executed counterparts, whether original execution or ca or facsimile xecut ions, or a combination, shall be construed together and s snned e shall constitute one and the same agreement. 22. AMENDMENT. No amendment, modit"ication, 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 D,EFEND�9 AT IT'S OWN E,XPENSE9 CITY Trust Fund Event Support Contract with Reg ion,91 Arabian Horse Association Page 7 of 9 ofd FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS., ACTIONS, CAUSES OF ACTION, LIMNS, LOSSES, EXPENSES, COSTS, TEES (INCLUDING, BUT NOT LIMITED To, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OIL ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED, TO, THOSE FOR PROPERTY OR MONETARY LOSS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUL T, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OIL, IN CONF"ECT"ION WITH, OR RESULTING FROM ANY CT, ERROR, OR OMISSION OF COMPANY AND ITS RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND, REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE,OR NONPERFORMANCE OF THIS AGREEMENT. b. IF ANY ACTION OR PROCEEDING EEDING SHALL. BE BROUGHT BY OR AGAINST THE C'IT'E" IN CONNECTION WITH ANY SUCH LIABILITY IT'S' OR CLAIM COMPANY, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING, AT COMPANY'S EXPENSE, BY OR THROUGH ATTORNEYS REASONABLY SATISFACTORY TO CITY. C. IT IS AGREED WITH RESPECT TO ANY LEGAL LIMITATIONS NOW OIL HEREAFTER IN EFFECT AND AFFECTING THE VALIDITY OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATION UNDER THIS SECTION 23, SUCH LEGAL LIMITATIONS, ARE MADE A PART OF THE INDEMNIFICATION TION OBLIGATION AND SHALL OPERATE TO AMEND, THE INDEMNIFICATION OBLIGATION TO THE MINIMUM EXTENT NECESSARY TO BRING THE PROVISION INTO CONFORMITY WITH TH E REQUIREMENTS O SUCH LIMIT"AT""IONS, AND AS SO MODIFIED, THE INDEMNIFICATION OBLIGATION SHALL CONTINUE IN FULL FORCE AND EFFECT. d.. Company agrees to and shall release City from any and all liability for any damage age air loss sustained or caused by Company in connection with or inc,idental to perfomiance under this Agreeme nt. e. This section. shall survive the expiratton or termination, of is Agreement* 24. AUDIT. Company agrees that City and 'ts 'internal auditor will have the right to audit, which shall incl de but not he limited to, the right to complete access t and the right to examine, the financial and business records of Company that relate to this Agreement, Including, but not limited to, all necessary boobs, papers, documents, records, and personnel, (collectively "Records") in order,to detennine compliance ith this Agreement. The Company shall make all Records available to City at l O�00 Throckmorton Street, Fort Worth,, Texas or at another location in City acceptable to both parties within thirty (301) days after notice by City and shall otherwise cooperate filly with City during any a dit. Notwithstanding anything to the contrary herein, this section shall survive expiration or earlier to inatio f this Agreement. 25*1 ASSIGNMENT* Trust Fund Event t supp ort Contract with Region 9 Arabian Horse Association Page 8 of 91 Neither party hereto shall assign or transfer its 'interest herein without prior written consent of the other party, and any attempted assigmnent or transfer of all or any part hereof without such prior written consent 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. 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 (eorperatien, 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: EGION 9 ARABIAN HORSE CITY OF FORT' WORT"111-. ASSOCIATION 1*0e, A II By IW By: S sa Alan.s Margo "hall s As', istant ity onager Director Date- Date.- f�'r; k APPROVED AS TO �EGALITY: 00 fc Assist ity Attorne, 0,00000 ATTEST: 10 0 0 wry 0 Mary J. ser/Ir City Sectre ary %0100000000 Contract Authorization: City Council Resolution Number 3513-08-2007 OFFICIAL RECORD C11TY SECRETARY FT.,WORTH,TX Trust Fund Event Support Contract with Region 9 Arabian Horse Association age 9 of 9