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HomeMy WebLinkAboutContract 42513 r t ' CITY SECRETARY CONTRACT Nt] 4".S 3 . TRUST FUND EVENT SUPPORT CONTRACT 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 s INC. ("SMI"), a Delaware corporation; and TEXAS MOTOR SPEEDWAY, INC. ("TMS"), 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 ($) first-class racin g 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, following a competitive p rocess with the Indy Racing League ("IRL"}, SMI has authorized Texas Motor Speedway to serve as the venue for a IRL event held on June 11, 2011. As part of the same weekend racing events, ' SMI has also authorized Texas Motor Speedway to serve as the venue on June 10, 2011 for a NA S CAR truck race (the NA S CAR Camping World Truck Series race known as the Winstar World Casino 400k, again following a competitive process with the National Association for Stock Car Auto Racing, Inc.) (along with qualifying on June 8, 2011, collectively vent .the "Event"). C. 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. D. TEX. REV. C I 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. E. 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 facilities" (the "Permissible Uses"). In consultation with NASCAR, SMI. T S and the C have �ointlN, prepared the plan attached hereto as Exhibit "A" the "E��e qgw. �ARORD CITY SECRETARY FT WORTH, Tx 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. F. Pursuant to Resolution No. 3513--08-2007 adapted 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 March 8, 2011 and shall remain in full force and effect until the later of(1) December 31, 2011 or (ii) the date as of which the Total Fund Amount has been disbursed in accordance with the Act and with 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 Ninety Thousand Five Hundred Fifty One and No11 00 Dollars ($90,551.00) to the Comptroller, as set forth in the March 8, 2011 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". t 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 City will be responsible for dealing with the Comptroller with respect to disbursements from the Fund. 5. 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, 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. 8. 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. 9. 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. 10. 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: 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 North, Tx 76102 Charlotte, NC 25212 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 3 545 Lone Star Circle 3rd Floor Fort Worth, Texas 75177 11. 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. 12. GOVERNMENTAL POWERS. It is understood that by execution of this Agreement, the City does not waive or surrender any of it governmental powers or immunities. 13. 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. f 14. 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—Fart `]North Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 15. 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. 15. 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. 17. 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. 18. CAPTIONS. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 19. 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. 20. 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. EXECUTED to be EFFECTIVE of the date set forth in the introductory paragraph of this Agreement: CITY OF FORT WORTH: ATTEST: r By: '-' By: Su an,M6is Marty Hendrix As 'st t City Manager City Secretary . °00 ago � . APPROVED AS TO FORM AND LEGALITY: f V„ j A �. '0 .. By: 0 0 0 a 0 , Peter Vak y Deputy City Attorney SPEEDWAY MOTORSPORTS, INC., a Delaware corporation: By: 40 oae� William R. Brooks Vice Chairman and Chief Financial Officer OFFICIAL. RECORD CITY SECRETARY FT, WORTH,TX TEXAS MOTOR SPEEDWAY, INC., a Texas corporation: By: Eddie Gossage President and General Manager EXHIBIT "A" EVENT PLAN 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 faculties 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 Speedway Expenses • 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 restroom s • Out of state advertising (newspaper and television) • FICA, FUTA, and SUTA taxes incurred related to the foregoing personnel costs