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HomeMy WebLinkAboutContract 45827 MY SECREW TRUST FUND EVENT SUPPORT This TRUST FUND EVENT SUPPORT CONTRACT ("Agreement") is made and entered by and between the CITY OF FORT WORTH (the "City"), a home-rule municipality organized under the laws of the State of Texas and REICHERT CELEBRATION, INC. ("Company"). RECITALS The City and Company hereby agree 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 (2014) Reichert Celebration (the "Event"), which specific Event is held not more than one time in Texas or an adjoining state in any year. B. Company conducted a highly-competitive, multi-state, site-selection process pursuant to an application by the City 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. Company has engaged Gerald L. Grotta, Ph.D. of Grotta Marketing Research ("Grotta") to prepare an Analysis of the Economic Impact of the Event for purposes of submitting to the Texas Comptroller of Public Accounts (the "Comptroller") to determine eligible Texas state tax revenues generated by the Event. D. TEX. REv. Civ. STAT. art. 5190.14, § 5C, as amended (as it may be amended from time to time) (the "Act") authorizes the Comptroller to establish the Event 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 in 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. Based on its analysis, the Comptroller, by letter to City dated May 9, 2014, has determined that it will deposit an estimated amount of$209,291.00 of State funds into the Fund if matched by $33,487 in remittances by or on behalf of the City, for a total estimated Fund amount of$242,778.00. As an endorsing municipality under the Act, the City has or will remit $33,487.00 to the Comptroller for deposit into 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. G. 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 a dmthe°patent �,,e,� COW SECREl"AIR11f Trust Fund Event Support Contract with Reichert Celebration,Inc. F IK OR11<11`11 RECEIVED AUG 112014 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 obligations of the Parties under the Agreement are set forth in Section 5, which the Parties agree are, without limitation, necessary for the City to provide incremental services necessary for the Event as well as other costs necessary for City to host the Event and for Company to conduct the Event. I. 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. RECITALS. 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 May 9, 2014 and shall remain in full force and effect until the later of(i) December 31, 2014 or(ii)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") forte 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$33,487.00 for the Event to the Comptroller, as set forth in the May 9, 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 theETF(s) under the terms of the Act. The City Remittance plus the contributions by the State of Texas to the ETF(s) in accordance with the Act shall be referred to herein as the"Total Fund Amount." Trust Fund Event Support Contrwt vOth Reicheyl C'eJeWation,Mc, Page 2 of 9 5. GENERAL OBLIGATIONS OF THE PARTIES. a. Company. Company is obligated to hold and conduct the Event at the Will Rogers Memorial Center on August 13 — September 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. b. City. (i) The City is obligated to host the Event. (ii) 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; (B) Awards distributed at the Event, including trophies, belt buckles, saddles, trailers, ribbons, sashes, t-shirts,jackets and plaques; (C) Cost of specialized arena footing used for the event; (D) Acquisition of cattle to be used in competition and practice; (E) Rental discount of facilities for the Event; (F) Rental of facilities for the Event; (G) Rental cost of equipment for the Event; (H) Officials,judges, stewards and staff, as required; (I) Travel expenses for officials, judges, stewards and staff as agreed upon as part of a service contract; (J) Security and paramedics; (K) On site veterinarian; (L) Consultant fee to assist with the request and administration to establish an event support fund; and (iii) The Company shall provide invoices to the City for expenses incurred 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 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. Trust Fund Event Support Contract with Reichert Celebration,Inc. Page 3 of 9 (iv) 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. (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 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 staternent 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 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 consistent with the Permissible Uses under the Act. Company shall be liable t o t he City for any damages resulting from a breach of this section. This section shall survive the expiration or termination of this Agreement. 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 in addition to every such remedy given under this Agreernentr I or now or hereafter existing at law or Trust Fetid Event Suppod Contract wide Reiched Celebrafion,Inc. Page 4 of 9 in 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. 9. TERMINATION FOR CASE. The City may terminate this Agreement if Company fails to comply with any term, provision, or covenant of this Agreement in 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 communication required or permitted 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 mailed). 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 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: COMPANY: City of Fort Worth Reichert Celebration, Inc. Attn: Director,Public Events Dept. Attn: Terry Schroeder 1000 Throckmorton PO Box 380 Fort Worth, TX 76102 Williamsburg, IA 5236I with copies to: the City Manager and the City Attorney Trust Fund Event Support Contract with Reichert Celebration,Inc. Page 5 of 9 at the same address 12. COMPLIANCE WITH LAWS,ORDINANCES 3 RULES ANDREGULATIONS. 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 Chatter 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 to 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. 15. VENUE AND JURISDICTION. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County,Texas or the United States District Court for the Northern District of Texas—Fort Worth Division. This Agreement shall be construed in accordance with the laws of the to of Texas. 16. NO THIRD-PARTY RIGHTS. The provisions and conditions of this Agreement are solely for the benel.-It 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. 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 perf.bmi 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 peiformarlICC shall be extended for a period of time equal to the period such party was delayed. Trust Fund Event Suppod Cont'act�aiflk Reichen Celebration,Inc. Page 6 of 9 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 oft is Agreement. 19. CAPTIONS. Captions and headings used in this Agreement are for reference purposes only and shall not be deerned a part oft is Agreement., 20. ENTIRETY OF AGREEMENT. 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 Coinpany, 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,. 21. 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 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 tote date hereof, and duly executed by the Parties hereto. 23. INDEMNIFICATION AND RELEASE. a. COMPANY COVENANTS AND AGREES TO AND DOES HERE BY 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, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR 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 RESPECTIVE, Trust Fund Event Support Contract mrith Reichert COebration,Inc. Page 7 of 9 OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PE RFORMANCE, ATTEMPTED PERFORMANCE,OR NONPERFORMANCE OF THIS AGREEMENT. b. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST THE CITY IN CONNECTION WITH ANY SUCH LIABILITY 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 OR 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 OBLIGATION AND 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 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 or loss sustained or caused by Company in connection with or incidental to performance under this Agreement. e. This section shall survive the expiration or term.ination of this Agreement. 24. AUDIT. Company agrees that City and its internal auditor will have the right to audit, which shall include, but not be limited to, the right 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 to, all necessary books, 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 Inbrockmorton Street, Fort Worth, Texas or at another location in City acceptable to of parties within thirty(30) 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 or earlier termination of this Agreement. 25. ASSIGNMENT. Neither party hereto shall assign or transfer its interest herein without prior written consent of the other party, and any attempted assignment 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. Trust Fund Event Support Contyact with Reichert Celebration,Inc, Page 8 of 9 26. AUTHORIZATION. By executing this Agreement, Company's agent affi rms 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 oft is Agreement or exhibits hereto. EXECUTED to be EFFECTIVE as of the date set forth Section 2 of this Agreement: CITY 0 +3RT WORTH® REICIH41 RT CELE INC. Y® BX: is Z S hr , c Sus nq Janis achy eder Assistant City Manager Date: Date: 1�14 ......... APPROVED AS TO FORM ANI. LEGAIATY: Ty er -- fach As Vc`iltyAtto y C)F F0 ATTES 10 Mary K City, Secretar )0 Contract.Authorization City Council Resolution Number 3513-08-2007 OFFICIAL RECORD CITY SECREURRY Trust Fund Event support Contract with Reichert Celebadion,,Inc, IV FT.WOR"ie IT ..........