HomeMy WebLinkAboutContract 22023-A1 crnr SEcRETAW �D
CONTRACT NO.
AMENDED AND RESTATED MASTER AGREEMENT
REGARDING SUPERSPEEDWAY
COMPLEX DEVELOPMENT
This Amended and Restated Master Agreement Regarding Superspeedway Complex
Development (this "Agreement") is entered into as of the Ar day of , 1996,
by and among the City of Fort Worth, Texas, a municipal corporation of the State of Texas and
a home rule city (the "City"), FW Sports Authority, Inc., a Texas industrial development
corporation (the "Sports Authority"), Texas Motor Speedway, Inc., a Texas corporation (the
"Operator"), and Speedway Motorsports, Inc., a Delaware corporation ("SMI").
RECITALS:
I. Operator is a major developer and operator of motor racing facilities.
11. Operator is constructing a superspeedway (the "Superspeedw�") and related
facilities as described in Section 1.1 below (the "Project") on the land described in the Lease
(as defined in Section 4.1 below) (the "Property").
III. The City, Denton County, Texas (the "Count "), and SMI executed a
Memorandum of Understanding dated June 14, 1995 (the "Memorandum of Understanding")
setting forth the agreement in principle among SMI, the City and the County with respect to the
financing and construction of the Project and with respect to SMI's construction of certain other
facilities, all as identified on the Master Site Plan attached to the Lease (the "Master Site
Plan").
IV. As contemplated by the Memorandum of Understanding, Operator, the City, the
Sports Authority, and SMI entered into that certain Master Agreement Regarding Superspeedway
Complex Development dated July 31, 1996 (the "Original Master Agreement").
V. Operator has proposed certain changes to the terms and conditions of the Original
Master Agreement, including the elimination of the issuance by the Sports Authority of Bonds,
as defined by and provided in the Original Master Agreement, for paying all or a portion of the
costs of the acquisition and construction of the Superspeedway.
VI. The Sports Authority, Operator, SMI and the City desire to set forth in this
Agreement the revised and restated terms and conditions of the construction, development and
lease of the Project, which terms and conditions will be more particularly described to the
mutual satisfaction of the parties thereto in certain documents to be entered into on the date
hereof, including, without limitation, the "Lease", the "Guaranty", the "Purchase Contract", and
any and all other documents related hereto or thereto (collectively, the "Collateral
Agreements").
VII. The parties hereby declare and agree that this Agreement a 6GIAC�
Original Master Agreement in its entirety. C�T"y SECRETARY
FT.WORTH,TX
107641.18
VIII. The parties recognize that all agreements of the parties.hereto and all terms and
provisions hereof are subject to the laws of the State of Texas and all rules, regulations and
interpretations of any agency or subdivision thereof then governing the subject matters hereof.
AGREEMENT
In consideration of the premises and the mutual covenants and agreements herein
contained and for other good and valuable consideration, the receipt and sufficiency of which
are acknowledged and confessed by each of the parties hereto, the parties hereto have agreed
and do hereby agree as follows:
L
DEVELOPMENT
1.1 Development of Superspeedway Complex. The Operator agrees to cause, at its
cost and expense, the construction *and development of the Project on the Property to be
completed as contemplated in this Agreement. The Project will include a one and one-half mile
oval speedway, grandstand and other spectator seating, luxury suites, parking facilities, and such
other facilities as may be directly related to the operation of the Superspeedway. The parties
contemplate that the Project will be developed in phases. The first phase of the Project shall
consist of the superspeedway facility described above along with seating for approximately
150,000 spectators (as well as luxury boxes and related facilities). Subsequent phases of the
construction of the Project may expand the existing Project to accommodate up to approximately
280,000 spectators along with appropriate improvements to the remaining portion of the Project
required to accommodate such additional spectators. Operator shall be obligated, at its sole cost
and expense, to complete construction of the first phase of the Project and to provide any
financing relating thereto. Operator shall complete subsequent phases subject to its determination
of economic viability and to the availability of financing on terms acceptable to Operator. The
Sports Authority shall not have any obligation with respect to any phase of the Project.
1.2 Design and Construction of Project. The Project shall be provided, constructed,
and equipped in accordance with designs, plans and specifications prepared by or under the
direction of Operator. Construction of the Project shall be accomplished in accordance with
applicable law. Unless otherwise required by law, rule, regulation or interpretation by an
agency of the State of Texas, Operator will negotiate and will not competitively bid construction
contracts for the Project.
1.3 Other Improvements.
1.3.1 Road improvements. Subject to Sections 1.3.3 and 3.3(b) below, the City
and Operator shall construct a ring road, a connecting road westerly to Highway 156, and a
connecting road easterly to Interstate 35 as dedicated public thoroughfares (including the
acquisition of needed right-of-way and drainage, some of which may be off site) as shown on
the Master Site Plan. The design, location and construction of the road improvements shall be
coordinated with the design and construction of the Project, subject to the prior mutual approval
of the City, the Sports Authority, and Operator, in order to provide the optimum functional
107641.18 2
access to and from the Property. All costs of the road improvements referenced in this Section
1.3.1 are herein called the "Road Costs." The City shall not be required to spend more than
$7 million on the Road Costs. The City and the Operator shall share the Road Costs on a pro
rata basis with the City bearing $7.00 of such costs for every $5.00 of costs that the Operator
bears up to $12 million. Anything to the contrary notwithstanding, Operator shall bear all Road
Costs in excess of $12 million. The City shall pay its share of the Road Costs (subject to the
limitations set forth above) periodically in accordance with the terms of a community facilities
agreement and/or interlocal cooperative agreement, as applicable, in form and substance
acceptable to the City.
1.3.2 Water and Sewer Improvements. Subject to Sections 1.3.3 and 3.3(b)
below, the City shall construct and maintain water and sewer improvements described on the
Master Site Plan so that water and sewer services are delivered to the property line of the
Property. The design, location, and construction of the water and sewer improvements shall be
coordinated with the design and construction of the Project. The water and sewer improvements
shall have a capacity of at least one million gallons of water service and one million gallons of
sewer service provided for the Project to the property line of the Property. All costs of the
utility improvements referenced in this Section 1.3.2 are herein called the "Utility Costs." The
City shall not be required to spend more than $4 million on the Utility Costs. Operator shall
bear all Utility Costs in excess of $4 million. Construction of utilities shall be in accordance
with the attached Schedule 1.3.2 subject to the City's right to amend the schedule, if necessary.
1.3.3 Master Site Plan. The Master Site Plan, including the uses set forth
thereon, may not be materially changed without the prior written approval of the City, the Sports
Authority, and Operator, such approval not to be unreasonably withheld. Operator's submission
of a final version of the Master Site Plan, and the approval thereof by the City and the Sports
Authority, are conditions precedent to the obligations of the City to finance and construct the
road improvements and water and sewer improvements set forth in Section 1.3.1 and 1.3.2.
1.4 Annexation. After the execution hereof, the City shall continue to use all
reasonable efforts to annex into the City, to the extent permitted by law, those portions of the
Property to be owned by the Sports Authority and located within the exclusive extraterritorial
jurisdiction of the City (the "Annexed Property"). Further, the City will use its good faith
efforts to secure appropriate adjustment of any extraterritorial jurisdiction boundaries in order
to accomplish development of the Speedway in accordance with the Master Site Plan.
II.
PURCHASE OF PROJECT
2.1 Purchase of Property and Project. Subject to execution of the Collateral
Agreements, the Sports Authority shall acquire the Project from Operator and/or affiliated
companies of Operator and SMI pursuant to the terms of a purchase contract by and between
the Sports Authority and Operator dated the date hereof (the "Purchase Contract"). The terms
and conditions contained in the Purchase Contract relating to the acquisition of the Project shall
govern such transaction, anything in this Agreement to the contrary notwithstanding. SMI shall
execute a guaranty acceptable to the City and Sports Authority (the "Guaranty") pursuant to
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which SMI will guarantee all obligations of Operator and its affiliates under the Collateral
Agreements and hereunder.
2.2 Incremental Funding. Promptly after annexation of the Annexed Property
pursuant to Section 1.4 above, a Tax Increment Financing District (the "TIF") shall be created
over the Annexed Property pursuant to the provisions of Chapter 311 of the Texas Tax Code.
The City shall contribute 100% of the City's incremental ad valorem taxes related to the TIF
into the tax increment fund of the TIF. The City and the Sports Authority concurrently have
entered into a Texas Motor Speedway Development Agreement(the "Development Agreement"),
where the City has agreed that the TIF shall, to the extent now or hereafter permitted by law,
transfer to the Sports Authority such moneys on deposit in the tax increment fund solely for the
purpose of and in such amounts as shall be necessary under the terms of the Purchase Contract
for discharging obligations of the Sports Authority under the Purchase Contract. Other moneys
generated by the TIF in excess of the amounts so transferred to the Sports Authority shall be
used by the City for the purpose of paying other costs, expenses, and obligations incurred by
the Sports Authority and the City in connection with the implementation of the project and
financing plan of the TIF. The TIF will terminate on the earlier of (i) 30 years from the date
of its creation or (ii) payment, discharge, or defeasance of all TIF obligations under the
Development Agreement and as required by the Purchase Contract.
III.
PROPERTY TRANSFERS
3.1 Transfers. Concurrently with the execution of the Collateral Agreements,
Operator shall transfer or cause to be transferred to the Sports Authority the Project and the
Property owned by it or by affiliated companies pursuant to the terms of and in accordance with
the Purchase Contract.
3.2 Title and Effect of Transfers. The properties transferred pursuant to this Article
III will be transferred by special warranty deed in a condition reasonably acceptable to the Sports
Authority and free and clear of all liens, claims, easements, rights-of-way, reservations,
reversionary interests, restrictions, encroachments, tenancies, oil, gas or mineral leases and any
other encumbrances on the mineral estate -and any other encumbrances of whatsoever nature
(collectively, "Encumbrances") except the Permitted Encumbrances (hereinafter defined).
Operator shall, at Operator's sole cost and expense, deliver to the Sports Authority an Owner's
Commitment for Title Insurance ("Title Commitment") from Rattikin Title Company, 611
Throckmorton Street, Fort Worth, Texas 76102 (the "Title Company"), which Title
Commitment shall set forth the status of the title of the Property and shall show all
Encumbrances and other matters, if any, relating to the Property. Within thirty (30) days after
the completion of construction of all improvements comprising the Project, Operator shall, at
Operator's sole cost and expense, deliver to the Sports Authority a survey ("Surve "), certified
to the Sports Authority and the City, describing the Property, showing the location of all
improvements constructed thereon, showing the location of all Encumbrances located (identified
by appropriate recording information), and reflecting the total number of acres within the
Property, prepared by an engineering firm acceptable to the Sports Authority. At closing,
Operator shall deliver to the Sports Authority an Owner Policy of Title Insurance issued by the
Title Company to the Sports Authority in the amount of the purchase price set forth in the
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Purchase Contract, insuring that, after the completion of the closing, the Sports Authority is the
owner of indefeasible fee simple title to the Property, subject only to those Encumbrances
permitted by the Purchase Contract (the "Permitted Encumbrances"). If there is any conflict
between this Section 3.2 and the provisions of the Purchase Contract, the Purchase Contract
shall control.
3.3 Land Acquisition.
(a) Operator represents and warrants to the parties hereto that it has,
prior to the execution hereof, made good faith efforts through reasonable
negotiations to acquire from the owners thereof the "Out Parcels" (herein so
called and defined) designated on the Master Site Plan at fair market prices. The
City, the Sports Authority, and the Operator hereby acknowledge and agree that
all of the Out Parcels contemplated in the Master Agreement are necessary to the
operation of the public project. The City, the Sports Authority, and the Operator
acknowledge that the Operator through the efforts of the Operator and the Sports
Authority has succeeded in acquiring or contracting for the acquisition of
numerous lots lying within the Country Lane Estate Subdivision in Denton
County, Texas (herein "Country Lane Out Parcels"). Some of these
acquisitions resulted in a title transfer to the Operator or to its affiliated entities,
and that additional Country Lane Out Parcels are currently under contract and
will be conveyed in a direct title transfer to the Sports Authority. The City, the
Sports Authority, and the Operator acknowledge and agree that all lot transfers
to the Operator or its affiliated entities were done for the benefit of the Sports
Authority in an effort to accelerate the completion of the Project. The Operator
is financing these transactions only with the intent to accelerate the completion of
this public project, which public project has been contemplated for at least thirty-
six months. The Operator acknowledges and agrees that the Sports Authority
shall not have any liability for the costs of acquiring the Out Parcels, and
Operator shall be liable for paying all costs related thereto.
(b) The Sports Authority has retained the services of legal counsel to
handle all future acquisitions of the Out Parcels ("Consultant"), including
acquisitions through eminent domain proceedings. The Consultant shall engage,
as needed, a real estate appraiser or real estate appraisers to determine the current
fair market value of each of the Out Parcels, and the Consultant shall negotiate
the terms and conditions of the purchase of the Out Parcels, subject to the
qualifications and limitations set forth below. Operator has, pursuant to the terms
of the Escrow Agreement dated August 2, 1996, by and among Operator, Sports
Authority and Title Company (the "Escrow Agreement"), deposited with Title
Company, as escrow agent ("Escrow Agent") Three Million Two Hundred Fifty
Thousand and no/100 Dollars ($3,250,000.00) ("Escrow Funds"), to be used by
the Sports Authority to acquire the remaining Out Parcels designated on the Site
Plan and not already conveyed to the Sports Authority pursuant to Section 3.3(a)
and to pay all costs associated therewith. If Operator fails to deposit any amounts
required to be deposited hereunder or under the terms of the Escrow Agreement,
such failure shall constitute a breach hereof, and shall relieve all parties of any
obligations to each other under this Agreement and all other commitments of any
107641.18 5
and all parties to each other relating to the Project including without limitation all
resolutions, orders and communications from the Texas Department of
Transportation and the Trinity River Authority of Texas. Promptly after such
deposit, the Sports Authority through Consultant proceeded, and shall continue
to proceed, to use its best efforts to acquire all of the Out Parcels by offering to
the respective owners of the Out Parcels the fair market value thereof. If any of
the owners of the Out Parcels rejects the fair market value offer and submits a
higher counteroffer, the Sports Authority shall submit the counteroffer to
Operator for Operator's approval. If Operator disapproves any counteroffer, the
Sports Authority shall promptly proceed to use its best efforts to acquire the
affected Out Parcel(s) by eminent domain proceedings. If the owner of an Out
Parcel offers to settle outside of the eminent domain proceeding for an amount
in excess of the fair market value offered to such owner, the Sports Authority
shall not be authorized to settle without the prior approval of Operator. If
Operator disapproves of any proposed settlement, the Sports Authority shall
continue with the eminent domain proceeding. Operator shall respond within five
(5) business days to any counteroffer or settlement proposal submitted by the
Sports Authority or the Consultant. Operator shall bear all costs incurred by the
Sports Authority in negotiating and consummating the purchase of the Out Parcels
and/or conducting such eminent domain proceedings, including legal fees and
other acquisition costs, and all costs pertaining to the Consultant's services. The
Sports Authority may make periodic draws of Escrow Funds to defray all costs
incurred under this Section 3.3 in accordance with the terms of the Escrow
Agreement, and Operator shall, upon request by the Sports Authority, deposit
with the Escrow Agent or pay directly to the Sports Authority any amounts in
excess of the Escrow Funds required to acquire the Out Parcels and to pay all
costs associated therewith. The Sports Authority and the Operator hereby
acknowledge and agree that all excess amounts deposited with Escrow Agent into
the Escrow Account shall be returned to the Operator. In the event Operator fails
to abide by any of the terms of this Agreement, in addition to the remedies that
may be exercised by the Sports Authority upon such breach, including termination
of all or any portion of its obligations under this Agreement, the Sports Authority
shall be relieved of any obligation to acquire the Out Parcels whether by
condemnation or otherwise.
3.4 Allocation of Assets Should the Public Project Fail. The City, the Sports
Authority, and the Operator acknowledge and agree that should the public project contemplated
by the parties fail because of legal intervention by third parties, because of economic
impracticability, or because of any other event outside the control of the parties, the Sports
Authority shall convey to the Operator title to all Out Parcels, the acquisition of which was
financed by the Operator. Should such unlikely events occur, neither the Sports Authority nor
the Operator shall owe each other any other compensation relating to the Out Parcels. All costs
incurred in connection with this Agreement, including without limitation, costs incurred by the
parties under this Section 3.4 shall be paid by the Operator.
107641.18 6
IV.
PROJECT LEASE
4.1 Lease of Project. Concurrently with the execution of this Agreement and the
Purchase Contract, Operator, as lessee, and the Sports Authority, as lessor, will enter into a
lease of the Property and the Project (the "Lease") acceptable to the Sports Authority and
Operator.
4.1.1 Lease Term. The Lease shall commence on the date hereof and shall
contain other terms and provisions as provided therein.
4.1.2 Rent. The rent payable under the Lease shall be in the amount and
payable as provided therein.
4.1.3 Sublease and Development. The Lease shall provide Operator the right
to sublease or develop portions of the Property for the following uses: (i) office and
condominium complexes, (ii) private club facilities and amenities, (iii) warehouse industrial
facilities, (iv) facilities used for the purpose of furnishing products and/or services utilized in
conducting driving schools, motor vehicle racing events, or other entertainment events, and (v)
facilities for the manufacture and assembly of vehicles (collectively, the "Other Facilities").
The Other Facilities will be owned by Operator. All revenues generated by any such subleases
or development shall belong to Operator. In this regard, the Lease shall provide that, with the
consent of the Sports Authority, the Lease may be separated into counterpart leases covering
individual tracts of land included in the Property. Further, Operator with the consent of the
Sports Authority, shall be permitted to mortgage its leasehold interests under the Lease.
Anything herein to the contrary notwithstanding, the obligation of Operator to pay rent shall be
unconditional. Any such permitted sublease or mortgage shall not abrogate the duty of Operator
to pay rent.
4.1.4 Uses of the Pronertv. Throughout the term of the Lease, the Project and
the Property shall be used solely for the purposes of a racing facility, entertainment venue and
other uses associated therewith as provided in and required by the Lease.
4.2 Option to Purchase. The Lease will provide that at the earlier of the payment
in full of the Purchase Price, as set forth in the Purchase Contract, or at the end of the Lease
Term, as provided in Section 4.1.1, that the Operator shall have the following rights and
options:
(a) Upon satisfaction of the condition stated in (b) below, the Operator
may purchase the Property for the depreciated value of the Property (as set forth
in the Lease and agreed to by the Sports Authority and the Operator) but in no
event shall the purchase price be greater than $500,000.
(b) As a condition to the option to purchase provided in (a) above, any
documents of transfer of the Property must contain a condition that the Operator,
as owner of the Property, shall continue to operate the Property as a public
1076 41.18 7
coliseum, stadium or track for automobile racing and related purposes for a term
of not less than fifteen (15) years.
4.3 Signage and Concessions. Subject to Section 4.7 hereof, Operator shall collect
and retain as income revenues from all concessions, parking, signage, sublease revenues, naming
allowances, and any and all other revenue produced within the Project.
4.4 Triple Net Lease. The Lease shall provide that all operation, maintenance,
repairs, and upkeep of the Property, the Project and the Other Facilities and all costs associated
therewith shall be the obligation, responsibility and liability of Operator.
4.5 Lease indemnification. The Lease shall contain indemnification in favor of the
City and the Sports Authority satisfactory to the City and the Sports Authority, including,
without limitation, indemnification against all risks of ownership of the Property and Project,
including, without limitation, any environmental or operational risks, and shall include insurance
coverage against such risks (other than environmental insurance) as may be satisfactory to the
City and the Sports Authority.
4.6 Suites and Tickets. Operator shall lease during the term of the Lease at $1.00
per year to the Sports Authority one luxury spectator suite at the Project, for the exclusive use
of the Sports Authority or its designee and its invited guests, the location of which will be
selected by the Sports Authority after the selection by Operator of its suite but prior to the
selection of any other luxury spectator suite at the Project, finished, furnished and maintained
by Operator, at its cost, in a manner not less than the standard upfit package available to all
other suite lessees, and having a seating capacity for not less than, together with tickets to all
events for, 60 persons. Operator shall grant to the Sports Authority, for consideration of$1.00
per year, a membership in the private club currently anticipated to be known as the Texas
Speedway Club during each year of the term of the Lease. The Sports Authority shall have the
right to transfer, assign, sublease and/or convey its suite on terms and conditions acceptable to
the Sports Authority in its sole discretion provided that Operator shall have a right of first
refusal with respect to any proposed transfer, assignment or sublease (which sublease is for more
than one year) of the Sports Authority's suite.
4.7 Festivals and Related Activities. The City anticipates creating a Texas nonprofit
corporation (the "Festival Corporation"), the purpose of which, among others, will be to
promote the City and events held within the Property and festivals and activities relating thereto.
The Festival Corporation shall have the right to plan, organize and hold festivals and similar
activities which relate to events held within the Property, and which may include television and
broadcast rights relating thereto and the control of all products sold at such festivals and
activities. All revenues generated from such festivals and related activities, including without
limitation all product revenues, sponsor revenues and television and broadcast revenues, shall
be paid to, and be the property of, the Festival Corporation. It is anticipated that the Festival
Corporation will develop its own logotypes, trademarks, servicemarks, copyrights and trade
names relating to festivals promoting the City and various events held at the Superspeedway.
The Operator agrees to cooperate with the Festival Corporation to promote such festivals and
related activities, including without limitation permitting the Festival Corporation to use
Operator's logotypes, trademarks, servicemarks, copyrights, and trade names for non-
commercial purposes in promoting festivals and related activities. The Festival Corporation shall
10764 1.18 8
not be entitled to sell any item bearing any mark owned by Operator without Operator's prior
written consent and at a royalty rate no greater than the lowest rate charged to other users for
such event. The Festival Corporation shall cooperate with the Operator and the Speedway's
protected sponsors and vendors in such a manner as to provide the Speedway's protected
sponsors and vendors the right of first refusal to participate in providing products at festival
events.
4.8 Other Provisions. The Lease shall have such other provisions as may be
acceptable to Operator and the Sports Authority.
V.
ADDITIONAL COVENANTS
5.1 Toll Roads, Taxes. During the period that Operator is lessee of the Project and
provided that Operator is not in material default under the terms of the Collateral Agreements,
the parties agree, to the extent permitted by law, not to support or take any action to (a) convert
the thoroughfares shown on the Master Site Plan into toll roads or (b) impose an admission fee
tax or seat tax surcharge on the Project or the use thereof.
5.2 Expenses. If this Agreement is consummated, then each party shall bear its own
attorneys' fees and costs in connection with the negotiation and preparation hereof.
5.3 Texas Department of Transportation. The City, the Sports Authority, and
Operator recognize that the participation of the Texas Department of Transportation ("DOT"),
through its commitment to pay costs and to expedite construction of all highway improvements,
is essential to the financing of the Project, and such parties agree to cooperate in seeking such
participation. If DOT requests that the City pay a local share of highway improvements and the
City elects not to pay such local share, then Operator may have the option to pay such costs on
behalf of the City.
5.4 Indemnification.
5.4.1 Indemnity. Operator shall indemnify, protect, defend and.hold harmless
the Sports Authority, the Sports Authority's officers, directors, affiliates, employees and agents,
the City and the City's council members, affiliates, employees and agents (collectively, the
"Indemnitee" or "Indemnitees") from any and all damages, losses, liabilities (joint or several),
payments, obligations, penalties, claims, litigation, demands, defenses, judgments, suits,
proceedings, costs,disbursements or expenses (including, without limitation, fees, disbursements
and reasonable expenses of attorneys, accountants, and other professional advisors and of expert
witnesses and costs of investigation and preparation) of any kind or nature whatsoever
(collectively, the "Damages"), directly or indirectly resulting from, relating to or arising out of:
(a) the annexation of the Out Parcels and the Property; the acquisition of
the Out Parcels and the Property; the creation, organization, or operation of the
TIF; the creation or organization of the Sports Authority; or the operation of the
Sports Authority to the extent such operation relates, directly or indirectly, to the
Out Parcels or the Property;
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(b) the design, installation, construction, development, operation, use,
occupancy, maintenance, or ownership of the Property, the Project or any Other
Facilities or the business of SMI or Operator, including, without limitation, any
Damages attributable to bodily injury, sickness, disease or death, to personal
injury, or to injury or destruction of property including loss of use resulting
therefrom;
(c) the formation, organization and operation of SMI or Operator;
(d) any breach of or inaccuracy in any representation or warranty made
or given by SMI or Operator or any of their agents, officers, or employees
contained in this Agreement, in any of the Collateral Agreements, or in any other
writings relating thereto;
(e) any breach or non-performance, partial or total, by SMI or Operator
of any covenant or agreement of SMI or Operator contained in this Agreement
or in any of the Collateral Agreements; or
(f) any actual or threatened violation of or non-compliance with, or
remedial obligation arising under, any federal or state environmental laws arising
from any event, condition, circumstance, activity, practice, incident, action or
plan relating in any way to the Property, the Project, the Other Facilities or the
business of SMI or Operator.
5.4.2 Indemnification Procedures. In case any claim shall be brought or, to the
knowledge of any Indemnitee, threatened against any Indemnitee in respect of which indemnity
may be sought against Operator, such Indemnitee shall promptly notify Operator in writing;
provided, however, that any failure so to notify shall not relieve Operator of its obligations
under Section 5.4.1 unless (i) such failure so to notify precludes Operator's investigation and
defense of such claim as a matter of law, and (ii) Operator does not otherwise have knowledge,
either actual or constructive, of such claim. Operator shall have the right (and obligation,
subject to the terms below) to assume the investigation and defense of all claims, including the
employment of counsel and the payment of all expenses. Each Indemnitee shall have the right
to employ separate counsel in any such action and participate in the investigation and defense
thereof, but the fees and expenses of such counsel shall be paid by such Indemnitee unless (i)
the employment of such counsel has been specifically authorized by Operator, in writing, (ii)
Operator has failed after receipt of notice of such claim to assume the defense and to employ
counsel, or (iii) the named parties to any such action (including any impleaded parties) include
both an Indemnitee and SMI or Operator, and the Indemnitee, after consultation with its counsel,
reasonably believes that there may be one or more legal defenses available to it which are
different from or additional to those available to Operator (in which case, if such Indemnitee
notifies Operator in writing that it elects to employ separate counsel at Operator's expense,
Operator shall not have the right to assume the defense of the action on behalf of such
Indemnitee; provided, however, that Operator shall not, in connection with any one action or
separate but substantially similar or related actions in the same jurisdiction arising out of the
same general allegation or circumstances, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys for the Indemnitee, which firm shall be designated in writing
by the Indemnitees). Each Indemnitee shall cooperate with Operator in the defense of any action
107641.18 10
or claim. Operator shall not be liable for any settlement of any action or claim without
Operator's consent, but if any such action or claim is settled with the consent of Operator or
there be final judgment or agreement for the plaintiff in any such action or with respect to any
such claim, Operator shall indemnify and hold harmless the Indemnitees from and against any
Damages by reason of such settlement or judgment as provided in Section 5.4.1.
5.4.3 NegliEence of Indemnitee. THIS INDEMNIFICATION REMAINS IN FULL
FORCE AND EFFECT EVEN IF ANY CLAIM DIRECTLY OR INDIRECTLY RESULTS
FROM, ARISES OUT OF, OR RELATES TO OR IS ASSERTED TO HAVE RESULTED
FROM, ARISEN OUT OF, OR RELATED TO THE SOLE NEGLIGENCE OR
CONCURRENT NEGLIGENCE OF AN INDEMNITEE. THE ONLY CIRCUMSTANCES
UNDER WHICH THIS INDEMNITY SHALL NOT APPLY SHALL BE IN CONNECTION
WITH LIABILITIES ATTRIBUTABLE TO THE WILLFUL MISCONDUCT OF AN
INDEMNITEE.
5.4.4 Project Insurance Coverages. The Lease shall provide that on and as of the date
of transfer of the Property and the Project to the Sports Authority, as herein required, Operator
shall have obtained, and shall have in full force and effect, insurance coverages relating to the
Project and its properties, and the ownership and operation thereof, of types and in amounts
normally and customarily carried on or with respect to properties and activities of the types
included as part of the Project and its operations and to secure the indemnity provided in Section
5.4 hereof, including without limitation, coverage insuring against fire, property and casualty
damage and comprehensive general liability. Further, such insurance shall name the Sports
Authority as owner and lessor of the Property and the Project, as an insured party, the Operator
as lessee of the Property and the Project, and the City, and its offices and employees, as
additional insureds.
5.4.4.1 Operator's Personal Property Insurance. The Lease shall provide that
any insurance policy covering Operator's or its contractors' or subcontractors' equipment or
personal property against loss by physical damage shall include an endorsement waiving the
insurer's right of subrogation against the Indemnitees. Such insurance shall be Operator's and
its contractors' and/or subcontractors' sole and complete means of recovery for any such loss.
SHOULD OPERATOR OR ITS CONTRACTORS OR SUBCONTRACTORS CHOOSE TO
SELF INSURE THIS RISK, IT IS EXPRESSLY AGREED THAT OPERATOR AND ITS
CONTRACTORS AND SUBCONTRACTORS HEREBY WAIVE ANY CLAIM FOR
DAMAGE OR LOSS TO SAID EQUIPMENT OR PROPERTY IN FAVOR OF THE
INDEMNITEES, EVEN IF SUCH DAMAGE OR LOSS IS CAUSED IN WHOLE OR IN
PART BY THE NEGLIGENCE OF ANY INDEMNITEE.
5.4.4.2 Evidence of Insurance. The Lease shall require Operator to provide evidence
of the insurance coverage required under this Section 5.4.4, represented by Certificates of
Insurance issued by the insurance carrier, must be furnished to Sports Authority. Certificates
of Insurance shall specify the additional insured status required above as well as the waivers of
subrogation. Operator shall provide to Sports Authority a certified copy of any and all
applicable insurance policies upon request of Sports Authority. Timely renewal certificates will
be provided to Sports Authority as the coverage renews.
107641.18 11
5.4.4.3 RELEASE AND WAIVER. OPERATOR HEREBY RELEASES,AND
SHALL CAUSE ITS INSURERS, CONTRACTORS, THEIR SUBCONTRACTORS, AND
EACH OF THEIR RESPECTIVE INSURERS TO RELEASE, THE INDEMNITEES
FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION WHATSOEVER THAT
OPERATOR, ITS INSURERS, ITS CONTRACTORS, THEIR SUBCONTRACTORS,
AND/OR ANY OF THEIR RESPECTIVE INSURERS MIGHT OTHERWISE POSSESS
RESULTING IN OR FROM OR IN ANY WAY CONNECTED WITH ANY LOSS
COVERED OR WHICH SHOULD HAVE BEEN COVERED BY INSURANCE,
INCLUDING THE DEDUCTIBLE PORTION THEREOF, MAINTAINED AND/OR
REQUIRED TO BE MAINTAINED BY OPERATOR AND/OR ITS CONTRACTORS OR
THEIR SUBCONTRACTORS PURSUANT TO THIS AGREEMENT, EVEN IF SUCH
CLAIMS OR CAUSES OF ACTION ARE CAUSED IN WHOLE OR IN PART BY THE
NEGLIGENCE OF ANY INDEMNITEE.
5.4.5 Survival; Right to Enforce. The provisions of this Section 5.4 shall
survive the termination of this Agreement. In the event of failure by Operator to observe the
covenants, conditions and agreements contained in this Section 5.4, any Indemnitee may take
any action at law or in equity to collect amounts then due and thereafter to become due, or to
enforce performance and observance of any obligation, agreement or covenant of Operator under
this Section 5.4. The obligations of Operator under this Section 5.4 shall not be affected by any
assignment or other transfer by the Sports Authority or the City of their respective rights, titles
or interests under this ,Agreement and will continue to inure to the benefit of the Indemnitees
after any such transfer. The provisions of this Section 5.4 shall be cumulative with and in
addition to any other agreement by SMI and/or Operator to indemnify any Indemnitee.
5.5 Contracting Goals. Operator shall make good faith efforts to contract with
residents of the City for goods and services at the Project and the Other Facilities, and Operator
shall be entitled to receive the payments described in Schedule 1 to the Purchase Contract to the
extent such goals are accomplished.
5.6 M/WBE Policy. The Operator shall take reasonable steps to comply with the
City's minority and women business enterprise policy as set forth in Ordinance No. 11923
adopted by the City Council of the City of Fort Worth on April 18, 1995 (the "Ordinance"), and
as amended from time to time, and Operator shall be entitled to receive the payments described
in Schedule 1 to the Purchase Contract to the extent the goals therein are accomplished.
Otherwise as the sole remedy for failure by Operator to achieve such goals, such payments shall
be withheld in accordance with said Schedule 1 to the Purchase Contract.
5.7 Put. Operator shall grant to the Sports Authority an option to put the Project and
the Property to Operator (the "Put Option") at a price and upon terms to be set forth in the
Lease, and Operator shall be obligated to accept such conveyance upon (i) occurrence of a
material breach under this Agreement or any of the Collateral Agreements, or (ii) the expiration
of the Lease's term.
5.8 North Texas Commission. The City shall reasonably cooperate with Operator
in requesting that the North Texas Commission and its members utilize an aggregate of$500,000
per year for five years of hotel occupancy taxes as directed by Operator to advertise the
Superspeedway and the City.
107641.18 12
5.9 Sales Taxes on Construction. The City and the Sports Authority shall cooperate
with Operator, at Operator's expense, to seek a determination from the Comptroller of Public
Accounts as to whether the cost of constructing and equipping the Project is exempt from state
and local sales taxes.
5.10 Name. If the name of the Superspeedway is to contain the name of or reference
to a county or to a city other than the City, then the City shall have the exclusive right to veto
the use of such name.
5.11 Default. The Lease shall contain default provisions mutually acceptable to the
Sports Authority and the Operator.
5.12 Guaranty by SMI. SMI hereby agrees to and does hereby guarantee each and
every obligation of the Operator under this Agreement, including without limitation Operator's
obligations under Section 5.4 hereof.
VI.
MISCELLANEOUS
6.1 Further Agreements. The City, the Sports Authority, and Operator agree to
complete as soon as practicable following the execution of this Agreement all documentation
necessary, appropriate or desirable to carry out the transactions agreed to by the parties in this
Agreement, including without limitation the Collateral Agreements.
6.2 Notices. Any notices or other communications required or desired to be given
to the other party hereto shall be given in writing and delivered by courier, overnight delivery
service, facsimile transaction or through the U.S. postal service, postage prepaid and by certified
mail, return receipt requested, at the following addresses:
To the City: City of Fort Worth
1000 Throckmorton
Fort Worth, TX 76102
Attention: Bob Terrell
With a copy to: Kelly, Hart & Hallman
201 Main Street, Suite 2500
Fort Worth, TX 76102
Attention: Dan Settle, Jr.
McCall, Parkhurst & Horton L.L.P.
717 North Harwood, 9th Floor
Dallas, TX 75201
Attention: Jeffrey A. Leuschel, Esq.
107641.18 13
To the Sports Authority: FW Sports Authority, Inc.
1000 Throckmorton
Fort Worth, TX 76102
Attention: Tom Higgins
With copy to: Kelly, Hart & Hallman
201 Main Street, Suite 2500
Fort Worth, TX 76102
Attention. Dan Settle, Jr.
Renee Higginbotham-Brooks
1612 Summit Avenue, Suite 230
Fort Worth, TX 76102
To Operator or to SMI: Texas Motor Speedway
c/o Speedway Motor Sports, Inc.
P.O Box 18747
Charlotte, North Carolina 28218
With copies to: Texas Motor Speedway, Inc.
Smith Tower, Highway 29
Concord, North Carolina 28026
Attention: O. Bruton Smith
and
With copies to: Vinson & Elkins L.L.P.
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201-2975
Attention: Ray Hutchison
6.3 Binding Agreement. This Agreement is intended to be and shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and assigns. Each
party hereto is relying, as a material inducement to making the agreements made herein by the
respective parties, on the representation by the other party that this is a binding and enforceable
agreement.
6.4 Invaliditv. Should any provision of this Agreement be held to be invalid, illegal
or unenforceable for any reason, such invalidity, illegality or unenforceability shall in no way
affect or diminish the other provisions of this Agreement.
6.5 Governing Law. This Agreement and substantially all of the transactions
contemplated herein and to be consummated pursuant hereto are performable in Tarrant County,
Texas, and shall be governed by the laws of the State of Texas, and the parties agree that venue
for any proceedings brought to determine the rights of the parties hereunder shall be in a court
of competent jurisdiction in Tarrant County, Texas.
107641.18 14
6.6 Headings. The headings and captions in this Agreement are for convenience only
and shall in no way amend, modify or in any way affect the substance of this Agreement.
6.7 No Joint Venture. Nothing contained in this Agreement or the Collateral
Agreements between SMI, Operator, the City, or the Sports Authority is intended by the parties
to create a partnership or joint venture between the parties, and any implication to the contrary
is hereby expressly disavowed. It is understood and agreed that this Agreement does not create
a joint enterprise, nor does it appoint either party as an agent of the other for any purpose
whatsoever.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives as of the day and year hereinabove written.
CITY OF FORT WORTH, TEXAS
By: \
City Manager
ATTEST:
City Secretary
[SEAL]
APPROVED AS TO FO
By, _
City Attorney
:FW SPORTS UTttRITY, INC.
G.s....
President, Board of Directors
TEXAS MOTOR SPEEDWAY, INC.
By-
Name:
Title: V/ P
OFFICIAL RECORD
107641.18 15 CITY SECRETARY
FT.WORTH TX
SPEEDWAY MOTORSPORTS, INC.
By: ✓�°
Name: ti;//:.� �+• �. �tos .S
Title: VA
OFFICIALjRrzCOi(DCITY SEFT.WO
107641.18 16
..........
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....................... -------------------- ...................
City of Fort Wortk Texas
Mayc►r and Council Communication
DATE REI+'E,RRNcH Ir UMER LOG NAIdB PAGE
12/17/96 C- 15830 02MOTOR 1 of 1
SUBJECT APPRONIAL OF THE AMENDED AND RESTATED MASTER AGREEMENT WITH TEXAS
MOTOR SPEEDWAY, INC., THE RACEWAY DEVELOPMENT AGREEMENT AND THE
GUARANTY AGREEMENT RELATING TO THE TEXAS MOTOR SPEEDWAY
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the City Manager to execute the attached Amended and Restated Master
Agreement between the.City of Fort Worth, FW Sports Authority, Inc., Texas Motor
Speedway, Inc., and Speedway Motor Sports, Inc., and
2. Authorize the City Manager to execute the attached Development Agreement between the
City of Fort Worth and FW Sports Authority, Inc., and
3. Authorize the City Manager to execute the attached guaranty agreement between the City
of Fort Worth, FW Sports Authority, Inc. and Speedway Motorsports, Inc.
DISCUSSION:
On December 19, 1995, the City Council approved M&C G-11349 which created Tax Increment
Reinvestment Zone Number Two. This zone includes the Texas Motor Speedway Development.
Following execution of these agreements, taxes levied on the increase in appraised value,
beginning with the January 1, 1997 appraisal, will be contributed to the TIF Fund as defined in
the Amended and Restated Master Agreement.
FISCAL INFORMATIONlCERTIFICATION:
The Director of Fiscal Services certifies that no expenditure of city funds is associated with
approval of this NI&C.
BT:m
Submitted for City Manager'io FUND ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: (to) APPROVED
Mike Gtomncr 6140 CITY COUNCIL
Originating Deparanca Head:
DEC 17 1995
Tom Higgins 6192 (from)
,11,4usJ 91
For Additionai InformationCity Secretary of the
City of Fort Worth,Temp
Contact
Jay Chaps 8003
0 Pdnled an rieWded ftper