HomeMy WebLinkAboutContract 43873 CITY SECRETARY, ,
CONTRACT NO, �
TRUST FUND EVENT SUPPORT CONTRACT
Samsung Mobile 500 / April 2012
This TRUST FUND EVENT SUPPORT CONTRACT ("Agreement") is made and
entered into by and between the CITY OF FORT WORTH (the "City"), a home-rule
municipality organized under the laws of the State of Texas; SPEEDWAY MOTORSPORTS,
INC. ("SMI"), a Delaware corporation; and TEXAS MOTOR SPEEDWAY, INC. ( a
Texas corporation.
RECITALS
The City, SMI and TMS hereby agree that the following statements are true and correct
and constitute the basis upon which the City, SMI and TMS have entered into this Agreement:
A. SMI is a leading marketer, promoter and sponsor of motorsports activities in the
United States that, through various subsidiaries, owns eight (8) first-class racing facilities in the
United States, one of which is Texas Motor Speedway, which is located in the City. The other
facilities are located in Hampton, GA; Bristol, TN; Concord, NC; Sonoma, CA; Sparta, ICY; Las
Vegas, NV; and Loudon, NH.
B. TMS operates Texas Motor Speedway, which, pursuant to an application by the
City and following a highly-competitive, multi-state, site-selection process with the National
Association for Stock Car Auto Racing, Inc. ("NASCAR"), SMI has authorized Texas Motor
Speedway to serve as the sole venue for a NASCAR event held from April 12-14, 2012 (known
as the Samsung Mobile 504 Weekend) (the "Event").
C. The Event is held not more than one time in Texas or an adjoining state in any
year.
D. TMS has engaged Gerald L. Grotta, Ph.D. of Grotta Marketing Research
("Grotta") to prepare an Analysis of the Economic Impact of Texas Motor Speedway for 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 Events.
E. TEX. REv.. C 1 v. S TAT. art. 5190.14, § 5C, as amended (as it may be amended from
time-to-time, the "Act") authorizes the Comptroller to establish the Events 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.
F. The Act provides that the money in the Fund may be used for "...the payment of
costs relating to the preparations necessary or desirable for the conduct of the event and the
payment of costs of conducting the event, including improvements or renovations to existing
facilities or other facilities and costs of acquisition or construction of new facilities or other
Event Trust Fund Agreement between A] 1 : 27 I N
City of Fort Worth,Speedway Motorsports,I .,QTrYxafo ECnURXI c. I of 10
FT. WORTH,TX
facilities" (the "Permissible Uses"). In consultation with NASCAR, SMI, TMS and the City
have jointly prepared the plan attached hereto as Exhibit "A" (the "Event Plan"), which
outlines the Permissible Uses that 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 SMI
and TMS to conduct the Event.
G. 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 major
sporting or athletic 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 January 20, 2012 and shall remain in full force and
effect until the later of(i) December 31, 2012 or (ii) the date as of which the Total Fund Amount
has 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 SMI's and TMS's selection of Texas Motor Speedway as the sole site
for the Event, the City will remit Two Hundred Fourteen Thousand Nine Hundred Thirty-Seven
and Noll 00 Dollars ($214,937.00) to the Comptroller, as set forth in the January 20, 2012 letter
which 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 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".
Event Trust Fund Agreement between
City of Fort Worth,Speedway Motorsports,Inc.,and Texas Motor Speedway, Inc. 2 of 10
5. DISTRIBUTION OF TOTAL FUND AMOUNT.
The parties agree that the Total Fund Amount will be distributed as follows: (i) first, to
the City to reimburse the City for actual costs incurred by the City in providing the City services
consistent with the Permissible Uses, as generally outlined in the Event Plan, and (ii) second,
within five (5) business days following receipt by the City of the Total Fund Amount and
appropriate expense documentation by TMS, to the fullest extent allowable under the
Permissible Uses, as generally outlined in the Event Plan, all amounts remaining in the Fund to
TMS to reimburse TMS for actual costs incurred by TMS consistent with the Event Plan. The
sufficiency of documented expenses shall be a determination made by the City in its sole
discretion. The City will be responsible for dealing with the Comptroller with respect to
disbursements from the Fund.
6. OBLIGATIONS OF TMS.
In consideration of the benefits set forth herein, TMS will use commercially reasonable
efforts to conduct the Event during the Term at Texas Motor Speedway. TMS will also
cooperate with the City in documenting costs incurred by TMS for the Event to evidence the
Permissible Uses. Not later than five (5) business days after moneys in the Fund have been
distributed in accordance with Section 5 above, TMS will pay the City an amount equal to the
City Remittance.
7, DOCUMENTATION.
TMS hereby certifies and warrants that all documentation submitted to the City fully and
accurately represents the actual costs incurred by TMS in hosting the Event and is consistent
with the Permissible Uses under the Act. TMS shall be liable to the City for any damages
resulting from a breach of this section. This section shall survive the expiration or termination of
this Agreement.
S. NON-EXCLUSIVE REMEDIES.
Except as otherwise provided herein, no remedy herein conferred or reserved is intended
to be exclusive of any other available remedy or remedies, and each and every such remedy shall
be cumulative and shall be in addition to every such remedy given under this Agreement or now
or hereafter existing at law or 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 which 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.
Event Trust Fund Agreement between
City of Fort worth,Speedway Motorsports,Inc.,and Texas Motor speedway,Inc. 3 of 10
9. TERMINATION FOR CAUSE.
The City may terminate this Agreement if TMS or SMI 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 TMS or SMI.
TMS or SMI must cure such default within thirty (30) calendar days after receiving notice from
City, unless otherwise agreed to in writing by the parties.
10. MUTUAL WAIVER OF CERTAIN DAMAGES.
THE CITY, SMI AND TMS EACH HEREBY EXPRESSLY, IRREVOCABLY, FULLY
AND FOREVER RELEASES, WAIVES AND RELINQUISHES ANY AND ALL RIGHT TO
RECEIVE PUNITIVE, EXEMPLARY AND CONSEQUENTIAL DAMAGES FROM THE
OTHER PARTIES HERETO (OR ANY PAST, PRESENT OR FUTURE OFFICER,
EMPLOYEE, AGENT, REPRESENTATIVE, OR ADVISOR OF THE OTHER) IN ANY
CLAIM, DEMAND, ACTION, SUIT, PROCEEDING OR CAUSE OF ACTION IN WHICH
THE CITY, SMI AND TMS ARE PARTIES, WHICH IN ANY WAY (DIRECTLY OR
INDIRECTLY) ARISES OUT OF, RESULTS FROM OR RELATES TO ANY OF THE
FOLLOWING, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING
AND WHETHER BASED ON CONTRACT OR TORT OR ANY OTHER LEGAL BASIS:
THIS AGREEMENT; ANY PAST, PRESENT OR FUTURE ACT, OMISSION, CONDUCT
OR ACTIVITY WITH RESPECT TO THIS AGREEMENT; ANY TRANSACTION, EVENT
OR OCCURRENCE CONTEMPLATED BY THIS AGREEMENT; THE PERFORMANCE OF
ANY OBLIGATION OR THE EXERCISE OF ANY RIGHT UNDER THIS AGREEMENT;
OR THE ENFORCEMENT OF THIS AGREEMENT.
11. 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.
12. 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
Event Trust Fund Agreement between
City of Fort Worth,Speedway Motorsports,Inc.,and Texas Motor Speedway,Inc. 4 of 10
notice by one party which is not expressly required by this Agreement will not obligate that party
to give any future notice.
City: SMI:
City of Fort Worth Speedway Motorsports, Inc.
Attn: Director, Public Events Dept. Attn: Bill Brooks, Chief Financial Officer
1000 Throckmorton 5401 E. Independence Blvd.
Fort Worth, Tx 76102 Charlotte, NC 28212
with copies to:
the City Manager and J. Cary Tharrington IV
the City Attorney General Counsel
at the same address at the same address
TMS:
Texas Motor Speedway, Inc.
Attn: Tom Kelly
3545 Lone Star Circle
3rd Floor
Fort Worth, Texas 75177
13, 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.
14, 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.
15. 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.
Event Trust Fund Agreement between
City of Fort Worth,Speedway Motorsports,Inc.,and Texas Motor Speedway,Inc. 5 of 10
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 State of Texas.
17. NO THIRD-PARTY RIGHTS.
The provisions and conditions of this Agreement are solely for the benefit of the City,
SMI, and TMS, and any lawful assign or successor of SMI and TMS, and are not intended to
create any rights, contractual or otherwise, to any other person or entity.
18, 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 which 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.
19. 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.
20. CAPTIONS.
Captions and headings used in this Agreement are for reference purposes only and shall
not be deemed a part of this Agreement.
21. 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, SMI, and
TMS, and any lawful assign and successor of SMI and TMS, 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; provided, however, that the Term Sheet
Regarding Use of Events Funds from the State of Texas under the Act between the City and
TMS dated December 9, 2010 shall not be superseded by this Agreement. This Agreement shall
not be amended unless executed in writing by all parties.
Event Trust Fund Agreement between
City of Fort worth,Speedway Motorsporis,Inc.,and Texas Motor Speedway,Inc. 6 of 10
22. 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.
23. AMENDMENT,
No amendment, modification, or alteration of the terms of this Agreement shall be
binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by
the Parties hereto.
24. INDEMNIFICATION AND RELEASE.
a. TMS COVENANTS AND AGREES TO AND DOES HEREBY
INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY
FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS,
ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES
(INCLUDING, BUT NOT LIMITED TO, 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 REPRESENTATIONS OR MISREPRESENTATIONS BY TMS AND/OR 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 SHALL BE BROUGHT BY OR
AGAINST THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM,
TMS AND SMI, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR
PROCEEDING, AT TMS'S AND SMI'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 24, 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
Event Trust Fund Agreement between
City of Fort Worth,Speedway Motorsports,Inc.,and Texas Motor Speedway,Inc. 7 of 10
SUCH LIMITATIONS, AND AS SO MODIFIED, THE INDEMNIFICATION
OBLIGATION SHALL CONTINUE IN FULL FORCE AND EFFECT.
d. SMI and TMS 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 termination of this Agreement.
25. AUDIT.
TMS 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 TMS that relate to the documentation provided to the City
pursuant 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. TMS shall make all Records available to City at 1 000 Throckrnorton
Street, Fort Worth, Texas or at another location in City acceptable to both 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 the expiration or
earlier termination of this Agreement.
Zf. 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, TMS, SMI and their respective successors and permitted
assigns.
27. AUTHORIZATION.
By executing this Agreement, TMS's and SMI's agents affirm that each is authorized to
execute this Agreement and that all representations made herein with regard to TMS's and SMI's
identity, address, and legal status (corporation, partnership, individual, dba, etc.) are true and
correct.
28. 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.
Event Trust Fund Agreement between
City of Fort Worth,Speedway Motorsports,Inc.,and Texas Motor Speedway,Inc. 8 of 10
EXECUTED to be EFFECTIVE as of the date set forth Section 2 of this Agreement:
CITY OF FORT WORTH: SPEEDWAY MOTORSPORTS, INC.,
a Delawa corporation:
By lft''I L7 : f
. y
Susa Alanis William R. Brooks
'Aasi..stant City Manager Vice Chairman and Chief Financial officer
APPROVED AS TO FORM TEXAS MOTOR SPEEDWAY, INC.,
AND LEGALITY: a Texas corporation:
By. r
Tyler F. Wallach Eddie Gossage
Assistant City Attorney President and General Manager
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OFFICIAL RECORD
Event Trust Fund Agreement between CITY SECRETARY
City of Fort worth,Speedway Motorsports,Inc.,and Texas Motor Speedway,Inc. , 9 of 10
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EXHIBIT"A"
EVENT FLAN
This Event Plan is intended to provide the basis for reimbursement, to the fullest extent provided
by law or regulation, of costs relating to the preparations necessary or desirable for the conduct
of the Event and the payment of costs of conducting the Event, including improvements or
renovations to existing facilities or other facilities and costs of acquisition or construction of new
facilities or other facilities.
Specifically, the City of Fort Worth, Speedway Motorsports, Inc., and Texas Motor Speedway,
Inc. agree that the following costs and expenses which will be incurred and related to the Event
are appropriate for reimbursement under the Act as Permissible Expenses to be reimbursed by
the Fund:
City of fort Worth Expenses
• Police services
• Fire Department services
Texas Motor S eedwayExpenses
• Capital expenses acceptable to the Comptroller's office including, without limitation,
purchase and maintenance of trams and roadway, and parking lot paving
improvements
• off-duty police officers
• Part-time event staff(including, without limitation, private security officers, parking
personnel, ticket and gate personnel, ushers, event cleanup, standby event workers,
and other temporary/part-time workers)
• Medical 1 EMT
• Firefighters 1 emergency personnel
• Event-related equipment rental
• Event portable restrooms
• pre-race production expenses
• Out of state advertising (newspaper and television)
• FICA, FUTA, and SUTA taxes incurred related to the foregoing personnel costs
Event Trust Fund Agreement between
City of Fort worth,Speedway Motorsports,Inc.,and Texas Motor Speedway, Inc. 10 of 10