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HomeMy WebLinkAboutContract 47121 koCITY SECRETARY R�CE�v�� CONTRACT NO. ,a. � i2ZU15 OF�ORj SPR�� ��G�SSOR� SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release ("Agreement') is made and entered into this 19- day of U Z,-k0\0+,(' , 2015, ("Effective Date") by and between the City of Fort Worth, a home-rule municipality organized under the laws of the State of Texas, acting by and through its duly authorized Assistant City Manager, Equine Marketing Group, Inc., an Iowa corporation, acting by and through Terry Schroeder, its duly authorized representative, and Reichert Celebration, Inc., an Iowa corporation,acting by and through Terry Schroeder,its duly authorized representative. A. DEFINITIONS In addition to the terms defined in the body of this Agreement,the following terms shall have the definitions ascribed to them as follows: "2013 ETF Contract" means Fort Worth City Secretary Contract("CSC")Number 44559, a Trust Fund Event Support Contract between the City and EMG. "2014 ETF Contract" means Fort Worth CSC Number 45827, a Trust Fund Event Support Contract between the City and Reichert Celebration. "City" means the City of Fort Worth, Texas, and its officers, representatives, agents, servants, and employees. "EMG" means Equine Marketing Group, Inc., an Iowa corporation, and its partners, representatives, members, managing members, officers, managers, proprietors, directors, employees, representatives, agents, subsidiary organizations, parent organizations, successor entities, assigns, predecessors,stockholders, administrators,contractors,and related companies. "License Agreement" means, collectively, Fort Worth CSC Number 41468, as amended by Fort Worth CSC Numbers 41468-A1 and 41468-A2, a License Agreement for use of the Will Rogers Memorial Center. "Reichert Celebration" means Reichert Celebration, Inc., an Iowa corporation, and its partners, representatives, members, managing members, officers, managers, proprietors, directors, employees, representatives, agents, subsidiary organizations, parent organizations, successor entities, assigns, predecessors,stockholders, administrators, contractors,and related companies. "Parties"means the City,EMG, and Reichert Celebration. B. RECITALS WHEREAS, the City and EMG entered into Fort Worth CSC Number 41468 on or about February 10, 2011, for the purpose of allowing EMG to host its Reichert Celebration Event("Event') at the Will Rogers Memorial Center ("WRMC") from 2011 through 2015 pursuant to an agreed upon payment and rate structure; OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Settlement Agreement and Release—Reichert Celebration,Inc.and Equine Marketing Group,Inc. 1099 WHEREAS, on June 18, 2012, the City and EMG entered into CSC Number 41468-A1 to add the City's new Equestrian Multi-Purpose Building as an additional facility authorized for use of the Event, along with the corresponding rental rate schedule for years 2012 through 2015; WHEREAS, in return for EMG hosting its 2013 Event at the WRMC, the City applied to the Texas Comptroller of Public Accounts ("Comptroller")for the creation of an events trust fund for EMG's 2013 Event under the provision of Texas Revised Civil Statutes, Article 5190.14 § 5C ("Act"), for the purpose of seeking reimbursement of costs related to preparing for and conducting EMG's 2013 Event; WHEREAS, the Comptroller established an events trust fund for the 2013 Event in the amount of$547,960.00($472,379.00 in state funds plus a$75,581.00 match by the City); WHEREAS, on or about.lune 20, 2013, the City and EMG entered into the 2013 ETF Contract, which obligates the City to reimburse EMG for certain actual expenses related to the 2013 Event up to the amount eventually distributed by the Comptroller, subject to the City's right to withhold all distributions under said contract for any outstanding obligations owed to the City by EMG pursuant to any contract with the City; WHEREAS, in August 2014, the Parties entered into a Settlement Agreement and Release wherein EMG agreed to assign to the City $138,730.75 from the 2013 ETF Contract to settle the City's claims against EMG for contractual damages relating to EMG's 2013 Event, the same being Fort Worth CSC Number 45830("CSC 45830"); WHEREAS, pursuant to the License Agreement, EMG agreed to pay the City a $25,000.00 facility rental fee deposit prior to the start of the 2014 Event($5,000.00 on or before February 1,2014 and $20,000.00 on or before August 1, 2014); WHEREAS, EMG failed to pay any portion of the $25,000.00 facility rental fee deposit for the 2014 Event; WHEREAS, in August 2014, the City, EMG, and Reichert Celebration executed an assignment of the License Agreement, wherein EMG assigned,transferred, and conveyed all of its rights, duties, and obligations in,to, and under the License Agreement to Reichert Celebration; WHEREAS, the City applied to the Comptroller for the creation of an events trust fund for Reichert Celebration's 2014 Event, which the Comptroller established at $242,778.00 ($209,291.00 in state funds plus a$33,487.00 match by the City); WHEREAS, on or about August 9,2014,the City and Reichert Celebration entered into the 2014 ETF Contract, which obligates the City to reimburse Reichert Celebration for certain necessary, reasonable, and actual expenses related to the 2014 Event up to the amount eventually distributed by the Comptroller, subject to the City's right to withhold all distributions under said contract for any outstanding obligations owed to the City by Reichert Celebration pursuant to any contract with the City; WHEREAS, Reichert Celebration held its 2014 Event at the WRMC from approximately August 11,2014 through September 1,2014; WHEREAS, pursuant to the License Agreement, Reichert Celebration agreed to pay, in full, all Settlement Agreement and Release—Reichert Celebration,Inc.and Equine Marketing Group,Inc. 2 of 9 amounts owed to the City for shavings for the animals and R.V. parking for its 2014 Event, on or before September 1,2014; WHEREAS, Reichert Celebration also agreed to pay the City any additional remaining balance owed within thirty (30) days after receipt of a final invoice from the City, which included, without limitation, charges for additional facility rentals, commercial exhibitor and vendor space, arena preparation and clean-up, and sound system; WHEREAS, the City sent a final invoice to Reichert Celebration detailing all remaining amounts owed for the 2014 Event pursuant to the terms of the License Agreement, said amount totaling $168,231.26; WHEREAS, Reichert Celebration has failed to pay any of the $168,231.26 due to the City from its 2014 Event; WHEREAS, on July 1, 2015, the City received written notice from Reichert Celebration that it would not be conducting and operating its 2015 Event, which was scheduled to occur from August 10, 2015 through September 1,2015; WHEREAS, Reichert Celebration's failure to hold the 2015 Event at the WRMC constitutes a breach of the License Agreement, and the City estimates that it has suffered actual damages of at least $77,000.00 from lost revenue due to Reichert Celebration's cancellation; WHEREAS, the City and Reichert Celebration have agreed on contractual damages to the City equal to the amount owed by Reichert Celebration under the License Agreement for the 2014 Event and the estimated lost revenue to the City for the cancellation of the 2015 event, to wit, $245,231.26 ($168,231.26+$77,000.00); WHERAS, in addition to the damages set forth above, EMG and Reichert Celebration currently owe the City a combined $109,068.00 as payment for the City's local match contribution to the Comptroller(2013 match of$75,581.00+2014 match of$33,487.00); WHEREAS; to satisfy EMG's and Reichert Celebration's obligations under the License Agreement, 2013 ETP Contract, and 2014 ETF Contract,and to settle any claim for damages that the City may currently have against EMG for its 2013 Event and Reichert Celebration for its 2014 Event and 2015 Event, EMG and Reichert Celebration have agreed to assign to the City funds under the 2013 ETF Contract and 2014 ETF Contract, respectively, in the amount of $379,299.26, which is equal to the outstanding contractual obligations owed by EMG and Reichert Celebration to the City related to the License Agreement, 2013 ETF Contract, and 2014 ETF Contract; WHEREAS, upon satisfaction of all obligations owed to the City as set forth herein, the City agrees that it will pay to EMG and Reichert Celebration$272,707.99, which equals the remaining balance of funds from the 2013 ETF and 2014 ETF; WHEREAS, Exhibit A, which is attached hereto and incorporated herein by reference for all purposes,sets forth in more detail the payment obligations of the parties under this Agreement; and WHEREAS, except as may be set forth below in the terms of the Agreement, the Parties hereby Settlement Agreement and Release—Reichert Celebration,Inc.and Equine Marketing Group,Inc. 3 of 9 agree that the following terms and conditions shall constitute full and final settlement of any and all current issues associated with the 2014 and 2015 Events for the License Agreement, 2013 ETF Contract, and 2014 ETF Contract. C. AGREEMENT,RELEASE,AND COVENANTS NOW, THEREFORE, the Parties hereto, in consideration of the mutual covenants set forth herein and intending to be legally bound hereby, stipulate and agree as follows: 1. The recitals set forth above, including, but not limited to, Exhibit A, are true and correct and form the basis upon which the Parties have entered into this Agreement and are incorporated herein by reference. 2. EMG does hereby GRANT, BARGAIN, SELL, CONVEY, TRANSFER, and ASSIGN unto the City all right, title, and interest in and to certain funds owed or to be owed to EMG pursuant to the 2013 ETF Contract in the amount of THREE HUNDRED FORTY-FIVE THOUSAND EIGHT HUNDRED TWELVE DOLLARS AND TWENTY-SIX CENTS ($345,812.26), which represents (i)the contractual damages for the 2014 Event and 2015 Event that EMG and Reichert Celebration currently owe to the City pursuant to the License Agreement and (ii) EMG's contractual payment to the City per Section 6 of the 2013 ETF Contract concerning the City's remittance (or match) to the Comptroller for the 2013 Event. 3. Reichert Celebration does hereby GRANT, BARGAIN, SELL, CONVEY, TRANSFER, and ASSIGN unto the City all right, title, and interest in and to certain fiends owed or to be owed to Reichert Celebration pursuant to the 2014 ETF Contract in the amount of THIRTY-THREE THOUSAND FOUR HUNDRED EIGHTY-SEVEN THOUSAND DOLLARS AND NO CENTS ($33,487.00) to satisfy Reichert Celebration's contractual payment to the City per Section 6 of the 2014 ETF Contract concerning the City's remittance(or match)to the Comptroller for the 2014 Event. 4. Within thirty (30) calendar days after the Effective Date of this Agreement,the City shall pay EMG a total of SIXTY-THREE THOUSAND FOUR HUNDRED SIXTEEN DOLLARS AND NINETY-NINE CENTS ($63,416.99) as full and final payment for all amounts owed to EMG under the 2013 ETF Contract, which takes into account all payments made to the City pursuant to the terms of this Agreement. 5. Within thirty (30) calendar days after the Effective Date of this Agreement,the City shall pay Reichert Celebration a total of TWO HUNDRED NINE THOUSAND TWO HUNDRED NINETY- ONE DOLLARS AND NO CENTS ($209.291.00) as full and final payment for all amounts owed to Reichert Celebration under the 2014 ETF Contract, which takes into account all payments made to the City pursuant to the terms of this Agreement. 6. Except as set forth in Section 7 of this Agreement, the City, EMG, and Reichert Settlement Agreement and Release—Reichert Celebration,Inc.and Equine Marketing Group,Inc. 4 of 9 Celebration hereby COMPROMISE, SETTLE, RELINQUISH, RELEASE, ACQUIT, and FOREVER DISCHARGE each other from and against any and all claims, demands, debts, liens, costs, expenses, actions, and causes of action of whatsoever nature, description of character, whether in tort or in contract, or by virtue of the common law, statute, or regulation, known or unknown, heretofore existing between the City, EMG, and Reichert Celebration, whether known or unknown, which may have accrued or may accrue, on account of, arising from, or in any manner growing out of, relating to,resulting from,or in any way connected to the License Agreement for the 2014 and 2015 Events, 2013 ETF Contract, and 2014 ETF Contract and any related transactions and occurrences including, but not limited to, any and all claims for exemplary damages, consequential damages, contractual damages, economic loss, attorney's fees, and any and all damages recoverable under the laws of the State of Texas and any and all other statutory or common law legal damages,known or unknown. 7. Notwithstanding anything to the contrary herein, Sections 7 (Documentation), 23 (Indemnification and Release), and 24 (Audit) of the 2013 ETF Contract and 2014 ETF Contract and Sections 20 (Indemnification), 21 (Insurance), and 23 (Federal Copyright Act) of the License Agreement shall not be affected by this Agreement and shall remain in full force and effect in accordance with the terms of each respective agreement. S. The Parties acknowledge and agree that the settlement amount set forth in Section 2 of CSC 45830 is and always should have been $138,730.75 and not$138,790.75. The amounts calculated for this Agreement take into account the corrected settlement amount of$138,730.75 (See Exhibit A), This Section 8 is intended to clarify the amount owed to the City by EMG and Reichert Celebration under CSC 45830 and shall not in any way affect the obligations of EMG and Reichert Celebration to pay such amount to the City per the terms of CSC 45830. All other terms and conditions of CSC 45830 shall remain in full force and effect. 9. The Parties warrant that no promise or inducement has been offered except as set forth herein; that this Agreement is executed without reliance upon any statement or representation of any person or Party's release, or its representatives, concerning the nature and extent of the losses, injuries, damages, and legal liability therefore; and that the acceptance of the consideration set forth herein is in full accord and satisfaction of all claims set forth herein. 10. It is understood that this is a compromise of a claim. The Parties desire to compromise and settle all matters and things to avoid the hazard,inconvenience,uncertainty, and expense of litigation. 11. The Parties represent and warrant that they are the sole owners of the respective claims, causes of actions, and rights-in-action being released herein, and they have not transferred, assigned, or otherwise encumbered said claims or any part thereto. 12. The Parties hereto shall not assign or transfer their interests and obligations of the settlement set forth in this Agreement without the prior written consent of the other parties, and any attempted assignment or transfer of all or any part hereof without such prior written consent shall be void. Settlement Agreement and Release—Reichert Celebration,inc!.and Equine Marketing Group,Inc. 5 of 9 13. This instrument contains the entire agreement between the Parties as to the matters contained herein and the terms of this instrument are contractual and not merely recitals. There are no other agreements, either written or oral, and this Agreement supersedes all earlier representations, negotiations,or agreements about this matter. The Parties acknowledge that the covenants, promises, and representations made herein are binding on,and inure to,the benefit of each of the Parties. As a matter of clarification, nothing contained herein shall be construed to affect the enforceability or validity of CSC 45830. 14. The Parties represent that they have consulted, or had the opportunity to consult, an attorney to seek legal counsel regarding the contents and effects of this Agreement. The Parties further represent that they have been informed of the content and effect of this instrument and that the instrument is executed as their act and deed and of their own free will. 15. In the event that any provision of this Agreement is held void, voidable, or unenforceable, the remaining portions shall remain in full force and effect. 16. 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, including all exhibits,shall be construed in accordance with the laws of the State of Texas. 17. This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 18. It is understood that by execution of this Agreement,the City does not waive or surrender any of its governmental powers or immunities. IN WITNESS HEREOF,the Parties hereto have executed this Agreement to be effective on the Effective Date. CITY OF FORT WORTH RE,ICHERT CELEBJZATION,INC. by: bv: 4',�Asmf( �)�J ---- usan Alanis Ter Schroeder Assistant City Manager ector Date: [0 S— Date: / OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Settlement Agreement and Release—Reichert Celebration,Inc.and Equine Marketing Group,Inc. 6 of 9 APPROVED AS TO FORM EQUINE MARKETING GROUP,INC. AND LEGALITY *Date: 1-5�/' 5 Tyler F. h er Assistan ity Attorney ATTESTED BY: oo0oo00)1. % if%laiy Kay Icy� c��6 City Secr c a -�o oaf d co'o o�y 5f No M&C required ��4 °000a000000, a a�A OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Settlement Agreement and Release—Reichert Celebration,Inc.and Equine Marketing Group,Inc. 7 of9 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Susan Alanis, known to me to be the person whose naive is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the City of Fort Worth for the purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of OCA' ML5. F. LINDA M.HiRRLINGER _* *` MY COMMISSION EXPIRES -� 2018 Notary Public in and for February 2 Q ' The State of Texas A41A STATE OF § COUNTY OF WA'4 § BEFORE ME, the undersigned authority, a Notary Public in and for the State of rrval , on this day personally appeared Terry Schroeder, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of Equine Marketing Group,Inc.,for the purpose and consideration therein expressed-and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 6 day of , 20/67 t CPI:RIE L. DAVIS y COMMISSION NO. 166379 , r MY COMMISSION EXPIRES Nota% Public in Ad r °''" SEPTEMBER The State of �. JSTATE OF § COUNTY OF § BEFORE ME, the undersigned authority, a Notary Public in and for the State of on this day personally appeared Terry Schroeder known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of Reichert Celebration, Inc., for the purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this�dav,o U" '20/6. L,� CARRIE L DAVISi,& COMMISSION NO.166379 Nota ublic it nd or MY COMMISSION EXPIRES The State of SEPTEMBER 2, Settlement Agreement and Release—Reichert Celebration,hic.and Equine Marketing Group,Inc. 8 of 9 EXHIBIT A 2013 ETF Contract Total Payment to EMG $547,960 (Total Trust Fund Amount Distributed to the City for 2013 Event) ($75,581.00) (Contractual Payment to the City per 2013 ETF Contract for the City match) ($138,730.75) (Payment to the City per CSC 45830)* ($25,000.00) (Payment to the City for EMG's damages for the 2014 Event) ($168,231.26) (Payment to the City for Reichert Celebration's damages for its 2014 Event) ($77,000.00) (Payment to the City for Reichert Celebration's damages for its 2015 Event) ----------------- $63,416.99 (Total Payment to EMG for the 2013 ETF Contract) 2014 ETF Contract Total Payment to Reichert Celebration $242,778.00 (Total Trust Fund Amount Distributed to the City for the 2014 Event) ($33,487.00) (Contractual Payment to the City per the 2014 ETF Contract for City match) ---------------- 209,291.00 (Total Payment to Reichert Celebration for the 2014 ETF Contract) Total Payment to the City 2013 ETF Contract,2014 ETF Contract,and License Agreement $75,581.00 (Contractual Payment to the City per the 2013 ETF Contract for the City match) $25,000.00 (Payment to the City for EMG's damages for the 2014 Event) $168,231.26 (Payment to the City for Reichert Celebration's damages for its 2014 Event) $77,000.00 (Payment to the City for Reichert Celebration's damages for its 2015 Event) --------------- $345,812.26 (Payment to the City from EMG's 2013 ETF Contract) $33,487.00 (Contractual Payment per Reichert Celebration's 2014 ETF Contract for City match) ---------------- $379,299.26 (Total Payment to the City under this Agreement) *Excluded from Total Payment to the City under this Agreement because this amount has previously been paid to the City per CSC 45830. Summary $138,730.75 (Prior payment to the City per CSC 45830) $63,416.99 (Total Payment to EMG under this Agreement for the 2013 ETF Contract) $209,291.00 (Total Payment to Reichert Celebration under this Agreement for the 2014 ETF Contract) $379,299.26 (Total Payment to the City under this Agreement) ------------------ $790,738.00 (Total Fund Amount for the 2013 and 2014 Events Trust Funds) Settlement Agreement and Release—Reichert Celebration,Inc.and Equine Marketing Group,Inc. 9 of 9