HomeMy WebLinkAboutItem 04 - Steam Exursion AttractionITEM #
MEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: ROGER NELSON, CITY MANAGER
MEETING DATE: SEPTEMBER 12, 2000
SUBJECT: STEAM EXCURSION ATTRACTION
RECOMMENDATION:
Staff recommends that the City Council authorize the City Manager to commit $100,000
of the CVB's fund balance to match Fort Worth's $100,000 for the rebuilding and
recertifying of Engine 2248. This action will enable the return of steam excursion service
between Grapevine and Fort Worth. Staff also recommends that the City Council
authorize the expenditure of $28,000 for the installation of tracks and related equipment
in the Roundhouse (208 W. Dallas Road) for the repair and refurbishment of Engine
2248. The funds for this project are available in the CVB's capital accounts.
The final item for Council consideration is to authorize the City Manager to execute a
contract with the Fort Worth and Western Railroad to lease and operate the Tarantula
Steam Excursion Train between Grapevine and Fort Worth. This is a seven year lease
which includes equipment, trackage rights and other considerations for the City during
the term of the lease. At this time, the contract has not been finalized with the Fort
Worth and Western Railroad. We do expect to have the contract available before the
meeting on Tuesday and will deliver it to each Council Member as soon as it is available.
FUNDING SOURCE:
Matching Funds: 115-29990-000-0 CVB Fund Balance..............................$100,000
Roundhouse Improvements: 179-29990-000-0 Capital Project Fund ..............$28,000
Annual Operating Expenses: .......................... Tarantula Annual Operating Revenues
BACKGROUND:
The Tarantula Steam Train began service in Grapevine on August 30, 1996. Since that
time it has become synonymous with the history and heritage of Grapevine and is the
single most important image in Grapevine tourism promotion.
Engine 2248 was taken out of service in January, 2000 while the Tarantula Steam
Excursion Train was under lease to Coe Sun Rail of Michigan. Fort Worth and Western
Railroad has since terminated that lease. The sidelining of the steam engine has had a
major impact on the promotion of the area and the ridership of the train, which is
currently being pulled by a diesel engine only.
September 7, 2000 (1:07PM)
Representatives of the Fort Worth Stockyards, the Fort Worth Convention & Visitors
Bureau, the Grapevine Convention & Visitors Bureau and Fort Worth and Western
Railroad met several months ago to discuss the possibility of returning the steam engine
to service. Fort Worth and Western Railroad has spent many millions of dollars on the
original restoration and refurbishment of the steam engine and passenger cars as well
as building a bridge across Marine Creek, installation of the Stockyards Turntable and
Stockyards Station itself. Fort Worth and Western Railroad representatives advised the
group that they were unable to invest any more capital into the Steam Excursion train
project. The group agreed to raise the $200,000 necessary to rebuild and recertify
Steam Engine 2248. Mr. Bill Davis made the offer that if the funds were raised to
restore the Steam Engine he would offer the City of Grapevine a long-term lease on the
Excursion Train with the eventual ownership going to the City of Grapevine. Mr. Holt
Hickman of the Stockyards Station group has agreed to provide, at no cost to the City of
Grapevine, all of the railroad related assets including the Stockyards Station Ticket
Office, the Water Tower, siding and switches for the Tarantula Steam Excursion Train.
The Fort Worth and Western Railroad would lease the Federal Railroad Administration
certified crew of Steam Engineer, Fireman, Brakeman and Conductor to Grapevine to
handle all the railroad operations of the Excursion Train. The Excursion Train would hire
a Maintenance Supervisor, a Concession and Ticket Sales Supervisor as well as several
part time persons to assist with the passenger side of the operation. While the
Operating organization would be a part of the Convention & Visitors Bureau
memberships and sponsorships would be available to those who want to join. A
volunteer program would be established to provide opportunity for interested persons to
participate.
The Grapevine Fort Worth Cotton Belt Railroad Corridor Committee made up of the
Grapevine Convention & Visitors Bureau, the Fort Worth Convention and Visitors
Bureau, the Stockyards Station Group, the North Fort Worth Business Association and
the Tarantula Steam Excursion Train has agreed to fund an annual marketing campaign
for the promotion of the Steam Excursion Train service between Grapevine and Fort
Worth. The promotional value of this marketing partnership will be in excess of
$120,000 annually.
Included with this memorandum is a proposed and projected budget for the railroad
through fiscal year 2003. The budget was developed using actual Excursion Train
ridership experience from Fort Worth and Western for 1998, the last year they operated
the Excursion Train. The projections include ridership numbers of 80,000 in FY 2001,
86,500 in FY 2002 and 98,500 in FY 2003. The average ticket prices are $10.10,
$10.74 and $11.49. The increase in the annual ridership assumes that with over
$120,000 per year being spent to promote the train the ridership will increase during the
first three years. The average ticket price assumes that the promotion of the train will
also increase the percentage of people riding the train from Grapevine to Fort Worth in
relation to the people riding just the 8th Avenue leg of the trip.
September 7, 2000 (12:50PM)
The proposed budget for FY 2001 does not include any charter services for the
Excursion Train. It is staffs recommendation that the charter portion of the business
wait until we have had roughly a years worth of operating the Excursion Train before an
attempt is made to sell the charter business. Fiscal year 2002 assumes a total of 78
charter runs and for FY 2003 we are assuming 140 charter runs. The charter business
in FY 2003 is equal to the charter service that the Excursion Train generated in 1998.
The budget also includes an "encumbered expenses" account that will function similar to
the PCMF in the General Fund. The items listed are a combination of the annual
inspection required after 1400 hours of operation on 2248, the five year FRA
certification, which requires a refurbishment of the locomotive, and a line for
unanticipated repairs that could arise for the engine or the cars.
Also included in the budget is funding for upgrades to the train and its capital needs.
For FY 2001 there are expenditures for the acquisition of a second steam engine and
the air conditioning of the passenger cars. For FY 2002 funds are set aside for the
refurbishment of the engine purchased in 2001, the purchase of an additional passenger
car and the purchase of historic railroad items. For FY 2003 there are funds for the
refurbishment of the passenger car purchased in FY 2002, the construction of a water
tower and sand tower, and the purchase of additional historic railroad items.
This is an exciting project for this community. Grapevine has made a major investment
in its Cotton Belt Railroad historic district and now the opportunity is available to
guarantee an operating steam railroad for future generations of Grapevine citizens and
visitors alike.
Staff recommends approval.
September 7, 2000 (1:18PM)
TARANTULA STEAM EXCURSION TRAIN
Revenue and Expense Projections FY 2001 - FY 2003
FIXED EXPENSES
Leased Labor
2000-2001
2001-2002
2002-2003
REVENUES
Sales
33,112
41,390
Tickets
808,188
929,416
1,131,316
Food & Beverage
72,883
80,172
93,428
Merchandise
0
36,736
58,777
Charters & Special Events
0
162,770
271,284
TOTAL REVENUE
881,071
1,209,094
1,554,805
FIXED EXPENSES
Leased Labor
144,000
152,640
161,798
(Engineer, Fireman, Brakeman, Conductor)
Leased Labor - Charters
33,112
41,390
Direct Labor
91,500
96,990
102,809
(Maintenance, Concessions, Ticket Sales)
Direct Labor - Charters
18,720
23,400
Charter and Special Events
0
65,108
108,514
Food and Beverage Costs
24,294
26,724
31,143
Merchandise
0
18,368
29,389
Supplies and Services
76,787
96,057
171,616
Trackage Fee
48,000
48,000
48,000
(Maintenance & Dispatching)
DART Fees & Insurance
48,000
48,000
48,000
Equipment Lease
106,800
106,800
106,800
Marketing and Promotions
60,000
90,000
90,000
(Contribution to Cotton Belt Railroad
Corridor Marketing Committee)
TOTAL FIXED EXPENSES
599,381
800,519
962,859
ENCUMBERED EXPENSE FUNDS
Unanticipated Repairs
20,000
20,000
30,000
Annual FRA Inspection
15,000
30,000
30,000
5 -year FRA Boiler Inspection
20,000
20,000
20,000
TOTAL ENCUMBERED EXPENSES
55,000
70,000
80,000
TOTAL EXPENSES
654,381
870,519
1,042,859
TARANTULA STEAM EXCURSION TRAIN
Revenue and Expense Projections FY 2001 - FY 2003
2000-2001 2001-2002 2002-2003
IN-KIND CONTRIBUTIONS
Stockyards Station
30,000
30,000
30,000
Stockyards Siding
1,800
1,800
1,800
Stockyards Water Tower
12,000
12,000
12,000
Stockyards Ticket Office
19,938
19,938
19,938
Stockyards Station Parking
1,200
1,200
1,200
Grapevine Roundhouse/Turntable
12,000
12,000
12,000
Grapevine Depot
6,000
6,000
6,000
TOTAL IN-KIND CONTRIBUTIONS
82,938
82,938
82,938
CAPITAL EXPENDITURES
Air Conditioning
65,000
0
0
Second Steam Engine
75,000
125,000
0
Additional Passenger Cars
0
35,000
65,000
Historic Railroad Items
0
45,000
75,000
Water and Sand Towers
86,690
220,265
36,000
TOTAL CAPITAL EXPENDITURES
140,000
205,000
176,000
SUMMARY
Operating Revenues
881,071
1,209,094
1,554,805
Operating Expenses
654,381
870,519
1,042,859
Capital Expenses
140,000
205,000
176,000
Revenues Over (under) Expenditures
86,690
133,575
335,946
Year End Fund Balance
86,690
220,265
5563211
MASTER AGREEMENT
THIS MASTER AGREEMENT (the "Agreement") is made and entered into this the
day of , 2000, by and among City of Grapevine a municipal
corporation, by and through the City's Convention and Visitors Bureau (CVB) a department
of the city, and Tarantula Corporation (acting on behalf of its wholly owned subsidiaries
Fort Worth & Western Railroad Company (FWWR), Fort Worth & Dallas Railroad Company,
Fort Worth & Dallas Belt Railroad Company and Tarantula Mercantile Corporation), a Texas
corporation (hereinafter collectively "Tarantula").
RECITALS:
WHEREAS, Tarantula owns, leases or has trackage rights on the following rail lines:
a. Grapevine, Texas, to Fort Worth, Texas, Stockyards - Mile Post 25 to Mile
Post 6; and I
b. Fort Worth, Texas, Stockyards to Fort Worth, Texas, 8th Avenue - Mile Post
6 to Mile Post 12;
(collectively, the "Rail Lines"), all as more particularly described on the map attached
hereto, made a part hereof and marked as Exhibit "A";
WHEREAS, Tarantula presently operates freight service upon the Rail Lines;
WHEREAS, Tarantula presently operates a passenger excursion train (the "Excursion
Train") upon the portions of the Rail Lines identified in subparagraphs a and b in the first
recital above (the "Excursion Lines");
WHEREAS, Grapevine CVB desires to operate the Excursion Train on the Rail Lines
all in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, the covenants and agreements to be performed by the parties
hereto, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Operation of Excursion Train.
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a. Assumption of Operations. Grapevine CVB hereby leases the
excursion equipment, and agrees to pay Tarantula Corporation to operate, during
the term and subject to the terms and conditions of this Agreement and the
Operating Agreement of even date herewith (the "Operating Agreement"), as same
may be amended by the parties from time'to time, all of which are incorporated
herein by reference as if set out verbatim, the Excursion Train on the Rail Lines.
b. Operation. FWWR will provide a qualified crew engineer, conductor
and fireman (if needed) that meets all local state and federal law requirements to
operate the Excursion Train over Tarantula owned or leased tracks.
2. Excursion Equipment.
a. Use of Excursion Equipment. Grapevine CVB shall lease, during the
term of this Agreement for the Excursion Train, the following motive power and
rolling equipment (together, the "Excursion Equipment",). FWWR reserves the
exclusive rights to number the passenger coaches and steam engine at their
discretion.
i. Steam Locomotive No. 2248 and tender; and
ii. Passenger Coach Nos. 206, 207, 208, 209, 1808 and 1818.
b. Maintenance and Condition of Excursion Equipment. At all times
during this Agreement, Grapevine CVB shall be solely responsible to maintain, at its
sole cost and expense, the Excursion Equipment in the same condition as on the
date of this Agreement (except to the extent of normal wear and tear between
maintenance periods) and in Federal Railroad Administration (FRA) certifiable
condition for passenger service. Grapevine CVB acknowledges that it has carefully
inspected the Excursion Equipment and that the Excursion Equipment is in a
condition suitable and satisfactory for the operation by Tarantula of Passenger
Service. Grapevine CVB hereby accepts the Excursion Equipment in its "AS IS"
condition, without warranty, express or implied. Tarantula shall operate the
Excursion Equipment in a careful and proper manner and shall comply with all laws,
ordinances and regulations relating to the use and maintenance of the Excursion
Equipment
C. Tarantula's Right of Inspection, Tarantula shall have the right to
inspect the Excursion Equipment.
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d. Risk of Loss or Damage. Grapevine CVB hereby assumes all risk of
loss and damage to the Excursion Equipment from any cause, during the term of
this Agreement. No loss or damage to the Excursion Equipment shall impair any
obligation of Grapevine CVB under this Agreement, and all such obligations shall
continue in full force and effect until otherwise discharged.
e. Ownership of Excursion Equipment. Title to the Excursion Equipment
shall at all times remain in Tarantula's name. Grapevine CVB shall provide to
Tarantula immediate notice of any claim, levy, lien or legal process issued against
the Excursion Equipment.
3. Use of Facilities.
a. Grapevine CVB, during the term of this Agreement, shall have non-
exclusive rights to use FWWR track between:
Grapevine and Stockyard
ii. Stockyard Station and 8th Avenue
(together, the "Facilities").
4. Term. This Agreement shall be in effect for a period of seven (7) years from
the date of execution, unless sooner terminated or extended as provided for in this
Agreement. This Agreement may be extended for additional periods of five (5) years so
long as lessee notifies lessor one year in advance of the term then in effect. So long as
Grapevine CVB is not in material breach of its obligations under this Agreement.
5. Compensation.
a. For and in consideration of the rights granted by Tarantula to
Grapevine CVB under the terms of this Agreement, Grapevine CVB
shall pay to Tarantula the following compensation; with a miniimum
of 20 trips per month or equivalent trip assignment time for crew
within any given month unless a prolonged period of mechanical
failure or catastrophe causes an extended cessation of service.
Fixed Costs:
$4,000.00 Trackage Fee (Track Maintenance & Dispatch)
4,000.00 DART Fees & Insurance
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8,900.00 Lease Payment
$16,900.00 Per Month Fixed costs
$400.00 Per Trip — Steam
$267.00 Per Trip — Diesel (FWWR Furnished)
6. Payment of Bills.
a. Grapevine CVB shall pay to Tarantula at such location as Tarantula
may designate all compensation and charges of every type and nature which
Grapevine CVB is required to pay by this Agreement in lawful money of the United
States within thirty (30) days after the rendition of bills therefor, provided that the
compensation set forth in Section 5 hereof shall be paid in accordance with such
section without the necessity of Tarantula billing Grapevine CVB for such amounts.
Bills shall contain a statement of the amount due on account of the expenses
incurred and services rendered during the billing period. All payments are payable
from operating revenues of the Tarantula Train and no other source.
b. No payments shall be withheld because of any dispute as to the
correctness of items in the bills rendered, and any discrepancies reconciled between
the parties hereto shall be adjusted in accounts of a subsequent month. The
records of each party hereto, insofar as they pertain to matters covered by this
Agreement, shall be open at all times to inspection by the other party,
C. Grapevine CVB shall honor all complimentary passes issued by
Tarantula prior to the date of execution of this Agreement for the Excursion Train,
but shall do so on a Space -Available basis.
7. Safe . Grapevine CVB shall coordinate with and abide by all railroad
operating and related regulations, rules and restrictions and orders of Tarantula for all
locations to insure the safety of the passengers and assist Tarantula in restricting
passenger movement to specified areas on or about the property of Tarantula.
8. Compliance with Laws.
a. With respect to operation of the Passenger Services on and over the
Rail Lines and in the Facilities, Grapevine CVB shall comply with all applicable laws,
rules, regulations and orders promulgated by any municipality, board, commission
or governmental agency having jurisdiction over the Passenger Services, the Rail
Lines and the Facilities.
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b. Grapevine CVB agrees to comply fully with all applicable federal, state
and local laws, rules, regulations, orders, decisions and ordinances (hereinafter
referred to as "Standards") concerning "hazardous wastes" and "hazardous
substances" (together, "Hazardous Materials") as defined in the Standards.
Grapevine CVB covenants that it shall not treat or dispose of Hazardous Materials
on the Rail Lines or in the Facilities. Grapevine CVB further agrees to furnish
Tarantula (if requested) with proof, reasonably satisfactory to any applicable federal,
state, or local agency charged with the interpretation and/or enforcement of the
Standards, that Grapevine CVB is in such compliance.
9. Environmental Matters/IncleMDJiX.
a. Grapevine CVB hereby agrees to indemnify, defend (by counsel
acceptable to Tarantula), protect and hold harmless, to the extent authorized by
law, Tarantula, its affiliates and subsidiaries (herein for the purpose of this Section
9, the 'Tarantula Parties") and each of their directors, officers, employees, agents,
successors and assigns from and against any and all claims, liabilities, penalties,
fines, judgment, forfeitures, losses, costs or expenses (including attorney's fees,
consultant fees and expert fees) for the death of or injury to any person or damage
to any property whatsoever arising from or caused in whole or in part, directly or
indirectly, by (i) the presence in, on, under or about the Facilities or the Rail Lines,
or any discharge or release in or from the Excursion Equipment, the Facilities or the
Rail Lines of any Hazardous Materials or Grapevine CVBs use, storage,
transportation, disposal, release, threatened release, discharge or generation of
Hazardous Materials to., in, on, under, about or from the Facilities and the Rail Lines
provided same shall have been caused by Grapevine CVB, and not otherwise, or (ii)
Grapevine CVB's failure to comply with any of the Standards. Grapevine CVB's
obligations under this Section 9 shall include, without limitation, and whether
foreseeable or unforeseeable, any and all costs incurred in connection with any
investigation of site conditions following an event as described in Section 9a(i) or
(fl) above, and any and all costs of any required or necessary repair, cleanup,
detoxification or decontamination of the Facilities and the Rail Lines after a
discharge, release or seepage (including, without limitation, the soil and ground
water on or under the land), and the preparation and implementation of any
closure, remedial action or other required plans in connection therewith, provided
same shall have been caused by Grapevine CVB, and not otherwise. Grapevine
CVB's obligations under this Section 9 shall survive the expiration or earlier
termination of the term of this Agreement. For purposes of the release and
indemnity provisions hereof, any acts or omissions of Grapevine CVB or by
employees, agents, assignees, contractors or subcontractors of Grapevine CVB or
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others acting for or on behalf of.Grapevine CVB(whether or not they are negligent,
intentional, willful or unlawful), shall be attributable to Grapevine CVB.
b. Upon expiration or earlier termination of the term of this Agreement,
Grapevine CVB shall cause all Hazardous Materials used, stored, transported, spilled,
seeped, discharged or generated by Grapevine CVB, and not otherwise, during the
term of this Agreement to be removed from the Facilities and the Rail Lines and to
be transported for use, storage or disposal in accordance and compliance with all
applicable Standards; provided, however, that Grapevine CVB shall not take any
remedial action in response to the presence of any Hazardous Materials in or about
the Facilities or the Rail Lines, nor enter into any settlement agreement, consent
decree or other compromise in respect to any claims relating to any Hazardous
Materials in any way connected with the Facilities or the Rail Lines, without first
notifying Tarantula of Grapevine CVB's intention to do so and affording Tarantula
ample opportunity to appear, intervene or otherwise appropriately assert and
protect Tarantula's interest with respect thereto.
C. Grapevine CVB shall promptly furnish Tarantula written notice of any
and all:
i. Releases or threatened releases of Hazardous Materials
affecting the Facilities or the Rail Lines or any adjacent property of which it
becomes aware during the term of this Agreement, regardless of whether
such releases or threatened releases are required to be reported to any
federal, state or local authority.
ii. Such written notice shall identify the substance released or
threatened to be released, the amount released or threatened to be released,
and the measures undertaken to clean up and remove the released material
and any contaminated soil or water, the nature and extent of the alleged
violation and the measures taken to eliminate the violation, and shall certify
that Grapevine CVB has complied with all applicable regulations, orders,
judgments or decrees in connection therewith, or the date by which such
compliance is anticipated to be effected. Grapevine CVB shall also provide
Tarantula with copies of any and all reports made to any governmental
agency which relate to such releases or such alleged violations during the
term of this Agreement.
10. Indemnification[Waive . Grapevine CVB hereby agrees to indemnify, protect,
defend and hold harmless, to the extent authorized by law, Tarantula, its affiliates
and subsidiaries (together, the "Tarantula Parties"), and their respective officers,
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directors, employees and agents harmless of and from any and all claims, causes
of action, fines, damages and suits of any kind or description (together for the
purposes of this Section 10, "Claims") for incidents occurring after December 1,
2000 and arising from or relating to the operation of the Passenger Service, the
operation or condition of the Excursion Equipment Grapevine CVB's use of the
Facilities for the conduct of its business or from any activity, work or things done,
permitted or suffered by Grapevine CVB and its agents and employees in or about
the Facilities, or any other activity or matter provided for or contemplated by this
Agreement, and further agrees to indemnify, protect, defend and hold harmless
Tarantula, its affiliates and subsidiaries from and against any and all Claims arising
from any breach or default in the performance of any obligation on Grapevine CVB's
part to be performed under the terms of this Agreement or arising from any
negligence or willful misconduct of Grapevine CVB, or any of its agents, contractors,
employees, business invitees or licensees, and from and against all costs, attorney's
fees, expenses and liabilities of any kind incurred because of any such claim or any
action or proceeding brought thereon for incidents occurring after December 1,
2000. In case any action or proceeding shall be brought against the Tarantula
Parties by reason of any such Claim, Grapevine CVB, upon notice from Tarantula,
shall defend the same at Grapevine CVB's sole cost and expense by counsel
reasonably satisfactory to Tarantula. Grapevine CVB, as a material part of the
consideration to Tarantula under this Agreement, hereby assumes all risk of damage
to property or injury to or death of persons with respect to the condition of the
Excursion Equipment.
11. Force Majeure. In the event that Tarantula or Grapevine CVB is delayed or
hindered in or prevented from the performance of any of their respective obligations
anywhere herein contained by reason of (i) the destruction, in whole or in part, of any
improvements forming a part of the Facilities or the Rail Lines; (ii) strikes; (iii) lockouts;
(iv) labor trouble; (v) war, whether declared or undeclared; (vi) riot; (vii) Act of God;
(viii) embargoes; (ix) delays in transportation; (x) inability to procure materials and/or
labor; (xi) failure of power; (xii) restrictive governmental laws or regulations (whether valid
or not); (xiii) insurrection; or (xiv) any other reason (other than financial) beyond the
reasonable control of such party, and not the fault of the party so delayed or hindered in
or prevented from performing work or doing acts otherwise required under this Agreement,
the performance of such work or doing of such acts will be excused for the period of delay,
and the period for the performance of such work or doing such acts will be extended for
a period equivalent to the period of such delay; provided, however, that the provisions of
this Section 11 may not operate so as to excuse or release Grapevine CVB from the prompt
payment of sums required to be paid by Grapevine CVB to Tarantula or to other payees
anywhere hereunder.
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12. Insurance. Grapevine CVB shall, at all times throughout the term of this
Agreement, maintain insurance coverages in accordance with the Insurance Requirements
sufficient to protect all parties.
13. Condemnation. In the event that at any time during the term of this
Agreement any property owned by Tarantula or leased or licensed to Tarantula which is
the subject of this Agreement shall be taken by any lawful power by the exercise of the
right of eminent domain for any public or quasi -public purpose, the following provision shall
be applicable:
a. If the taking is such that Grapevine CVBs rights and obligations under
this Agreement shall be materially interfered with, Grapevine CVB shall have the
right, upon written notice to Tarantula, to terminate this Agreement in its entirety
or to defend its leasehold rights and the value thereof as described herein. If such
proceeding shall result in a taking that does not materially interfere with the rights
and obligations of Grapevine CVB under this Agreement, then the Agreement shall
continue for the balance of its term without any deduction, abatement or offset in
respect of any sum or charge to be paid by Grapevine CVB under the provisions of
this Agreement.
b. As between Tarantula and Grapevine CVB, Tarantula shall be entitled
to any and all funds payable for the total or partial taking of any property the
subject of this Agreement with payment to Grapevine CVB for the value of
Grapevine CVB's leasehold rights for the operation of the Excursion Train.
14. Events of Default. Any one or more of the following shall constitute an
"Event of Default":
a. By Grapevine CVB
i. Grapevine CVB fails to make any payment pursuant to this
Agreement when due and such failure continues for fifteen (15) days;
ii. Grapevine CVB fails to maintain the insurance coverage
required by this Agreement or violates any material provision of Section 12
hereof;
iii. Grapevine CVB fails to perform fully any other material
provision of this Agreement and fails to cure such breach within thirty (30)
days after receipt of written notice of such breach from Tarantula;
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iv. Grapevine CVB fails to perform fully any provision of any of the
Underlying Agreements applicable to Grapevine CVB by virtue of this
Agreement.
b. By Tarantula:
Tarantula fails to maintain the Rail Lines to FRA Class II
standards;
ii. Tarantula fails to perform fully any other material provision of
this Agreement and fails to cure such breach within thirty (30) days after
receipt of written notice of such breach from Grapevine CVB.
15. Remedies. Upon the occurrence of any Event of Default as set forth in
Section 20 hereof, either party may:
a. terminate this Agreement;
b. terminate the other party's rights under this Agreement; or
C. take such other actions or employ such other remedies as are
permitted under this Agreement, or at law or in equity. Specifically, Grapevine CVB
has the right to remove its equipment from the Rail Lines at no charge.
In any of the foregoing events, the non -breaching party shall be entitled to all of its
damages from the breaching party as a result of such breach of this Agreement.
16. Entire Agreement. This Agreement contains the entire agreement between
the parties and supersedes all prior oral or written agreements, commitments or
understandings with respect to the matters provided for herein, and no modification of this
Agreement shall be binding upon the party affected unless set forth in writing and duly
executed by the party to be charged.
17. Notices. All notices, demands, requests or other communications which may
be or are required to be given, served or sent by either party to the other pursuant to this
Agreement shall be in writing and shall be deemed to have been properly given or sent:
a. If intended for Tarantula, by mailing by registered or certified mail,
return receipt requested, with postage prepaid, addressed to Tarantula at:
President
MASTER AGREEMENT Page 9
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Tarantula Corporation
6300 Ridglea Place, #1200
Fort Worth, TX 76116
b. If intended for Grapevine CVB, by mailing by registered or certified
mail, return receipt requested, with postage prepaid, addressed to Grapevine CVB
at:
Paul W. McCallum
Director, Grapevine CVB
One Liberty Park Plaza
Grapevine, TX 76051
18. Receipt of Notices. Each notice, demand, request for communication which
shall be mailed by registered or certified mail to either party in the manner aforesaid shall
be deemed sufficiently given, served or sent for all purposes at the time such notice,
demand, request or communication shall be either received by the addressee or refused
by the addressee upon presentation. Either party may change the name of the recipient
of any notice, or his or her address, at any time by complying with the foregoing
procedure.
19. Attorney's Fees. If any action is brought to enforce the terms of this
Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees from
the other party as part of the prevailing party's costs, the amount of which fees shall be
fixed by the court and shall be made a part of any judgment rendered. The "prevailing
party" will be the party that prevails in obtaining the remedy or relief that most nearly
reflects the remedy or relief that such party sought.
20. Headings. All tables of contents, section and paragraph headings are
inserted for convenience only and shall not affect any construction or interpretation of this
Agreement.
21. Interpretation. If any term, covenant or provision of this Agreement, or the
application thereof to any person or circumstance, shall ever be held to be invalid or
unenforceable, then, in such event, the remainder of this Agreement or the application of
such terms, covenant and provision hereof shall remain valid and enforceable to the fullest
extent permitted by law.
22. Assignment. Except for "Permitted Assignments", neither Tarantula nor
Grapevine CVB may assign any of its rights or obligations under this Agreement without
the prior written consent of the other party. "Permitted Assignments" shall only include
MASTER AGREEMENT Page 10
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assignments to any corporation which is a subsidiary, parent or affiliate of either party or
an entity controlled by any controlling shareholder of either party. Upon an assignment,
such assignee shall succeed to all of the rights and obligations of the party assigning and
such assignee shall execute an assumption agreement in favor of the non -assigning party
agreeing to pay and perform all obligations of the assigning party in accordance with the
terms hereof. Notwithstanding any Permitted Assignment, the assigning party shall at all
times remain fully responsible and liable for the payment of all sums due under this
Agreement and for compliance with all of its other obligations under this Agreement.
23. Severability. This Agreement is executed by all parties under current
interpretation of any and all applicable federal, state, county, municipal, or other local
statute, ordinance or law. Further, each and every separate division (paragraph, clause,
item, term, condition, covenant or agreement) herein contained shall have independent
and severable status from each other separate division, or combination thereof, for the
determination of legality, so that if any separate division herein is determined to be
unconstitutional, illegal, violative of trade or commerce, in contravention of public policy,
void, voidable, invalid or unenforceable for any reason, that separate division shall be
treated as a nullity, but such holding or determination shall have no effect upon the validity
or enforceability of each and every other separate division, or any other combination
thereof.
24. Modifications. This Agreement may be modified only by an instrument in
writing signed by an authorized officer of Grapevine CVB and of Tarantula.
25. Counterparts. This Agreement may be executed in any number of
counterparts, each of which may be deemed an original for any purpose.
26. Third -Party Beneficiaries. This Agreement is intended for the sole benefit of
the parties hereto, nothing in this Agreement is intended or may be construed to give any
person, firm, corporation, or other entity, other than the parties hereto and their respective
officers, agents, employees, lessors, parent corporation, subsidiaries, affiliates, successors,
and assigns, any right pursuant to any provision or term of this Agreement, and all
provisions and terms of this Agreement are and will be for the sole and exclusive benefit
of the parties to this Agreement, except as provided in Section 11 hereof.
27. Governing Law. This Agreement shall be construed and enforced under the
laws of the State of Texas and the parties hereto, notwithstanding the provisions of Section
28 hereof, agree to submit themselves to the jurisdiction of the courts of Texas for the
purposes of this Agreement. Venue for any action shall be the State District Courts of
Tarrant County Texas.
MASTER AGREEMENT Page 11
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28. Mediation. The parties agree that in the event a dispute arises with respect
to the rights, obligations, duties and liabilities of a party under this Agreement, the parties
will attempt to resolve such dispute through the use of a qualified third party mediator
acceptable to the parties. The mediation shall take place at a mutually agreeable site in
Tarrant County, Texas. In the event that the parties are unable to mutually agree on a
mediator, each may select a mediator of their own choosing who shall together appoint a
third mediator to mediate the dispute. In the event that a mediation is not convened and
concluded, successful or unsuccessful, within thirty (30) days of any party's request for
appointment of a mediator, then any party shall be free to avail itself of filing suit.
29. Covenant of Quiet Enjoyment. So long as Grapevine CVB complies fully with
all of the material provisions of this Agreement, Tarantula covenants that, except as
otherwise specifically indicated herein, it shall not interfere with the peaceful and quiet
occupation and enjoyment of the Rail Lines, Equipment, and Facilities by Grapevine CVB.
Particularly, Tarantula acknowledges that the Passenger Service is a retail business and
that, as such, the operations will result in a certain level of complaints regardless of the
how well the operation is marketed and executed and that Grapevine CVB, shall handle all
complaints in a manner that it deems appropriate and that it shall do so without
interference from Tarantula.
[Signature Page Follows]
MASTER AGREEMENT Page 12
SS 1\h:\library\03704\0002\110609.1
EXECUTED this day of —12000.
CITY OF GRAPEVINE CONVENTION & VISITORS
BUREAU,'
a Texas municipality
By:
Printed Name:
Title:
TARANTULA CORPORATION,
a Texas corporation
By:
Printed Name:
Title:
FORT WORTH AND WESTERN RAILROAD,
A Texas corporation
0
Printed Name:
Title:
MASTER AGREEMENT Page 13
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