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HomeMy WebLinkAboutContract 49013 a�6789'0, DUFF&PHELPS OF 1tV, .. ' CITY SECRETARY ,e CONTRACT NO. q CONFIDENTIAL City of Fort Worth April 6, 2017 200 Texas Street Fort Worth, TX 76102 Attention: Mr.Robert Sturns Ladies and Gentlemen: In connection with the consideration by Duff& Phelps, LLC (the"Company")and Project Prince of a contractual relationship involving an economic development opportunity and applicable business incentives with the City of Fort Worth and its affiliates("you"or "your") (each of you and the Company, a"Party"and collectively, the"Parties"), the Parties may exchange certain financial, business or other confidential or proprietary information. As a condition to each Party furnishing such information to the other Party, the Parties agree, as set forth below, to treat confidentially any information (whether prepared by the Party disclosing such information, its advisors or otherwise, and whether oral or written or computerized)that the such Party(in such capacity,the"Disclosing Party")or its agents or advisors, furnishes to the other Party(in such capacity, the"Receiving Party") or its representatives(which term, as used in this agreement, shall include such Party's subsidiaries and its and its subsidiaries' respective directors, officers and employees) (such information, together with all analyses, compilations, forecasts, studies, summaries, notes, data and other documents and materials in whatever form maintained whether prepared by the Disclosing Party or the Receiving Party or their respective representatives or others, which contain or reflect, or are generated from, any such information, being collectively referred to herein as the"Evaluation Material")and to take or abstain from taking certain other actions set forth herein. The term "Evaluation:Material"does not include information that(I)is already in the Receiving Party's possession, provided that such information is not known by the Receiving Party, after due inquiry, to be subject to a legal, fiduciary or contractual obligation of confidentiality or secrecy to the Disclosing Party or another party, (ii) becomes generally available to the public other than as a result of a disclosure by the Receiving Party or its representatives in violation of the terms hereof, or(iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its representatives, provided that such source is not known by the Receiving Party, after due inquiry, to be bound by a legal, fiduciary or contractual obligation of confidentiality or secrecy to the Disclosing Party or another party, or(iv) is independently developed by Receiving Party. Duff 8 Phelps,LLC T+1512 671 5575 mlchael.laleur@duffandphelps.com OFFICIAL RECORD 919 Congress Avenue www.duffandphelpe.com Suite 1450 CITY, SECRE T AR■ Austin,.Texas 78701 FT.WORTH,TX City of Fort worth 200 Texas Street Page 2 of 5 Fort Worth,TX 76102 March 31,2017 The Receiving Party hereby agrees that the Evaluation Material will be used by it or its representatives solely for the purpose of evaluating a possible business relationship or other transaction involving the parties and will be kept confidential by the Receiving Party and its representatives; provided, however, that any of such information may be disclosed to the Receiving Party's representatives who need to know such information for the purpose of evaluating any such possible business relationship or other transaction involving the parties and who agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto. The Receiving Party will be responsible for any breach of this agreement by its representatives, and the Disclosing Party, as its exclusive remedy hereunder, shall be entitled to directly enforce such agreements against such representatives. You understand that the Company reserves the right to adopt additional specific procedures to protect the confidentiality of certain sensitive Evaluation Material. Each Party hereby acknowledges that it is aware, and will advise its representatives who are informed as to the matters which are the subject of this letter, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this letter from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. In the event that the Receiving Party or its representatives receive a request to disclose all or any part of the information contained in the Evaluation Material under the terms of a valid and effective subpoena or order issued by a court or governmental body of competent jurisdiction, the Receiving Party agrees to(i) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such a request, so that it may seek an appropriate protective order and/or waive the Receiving Party's compliance with the provisions of this letter agreement(and, if the Disclosing Party seeks such an order, to provide such cooperation as the Disclosing Party shall reasonably request at the Disclosing Party's expense) and (ii) if disclosure of such Information is required in the opinion of the Receiving Party's counsel, who shall be reasonably satisfactory to the Disclosing Party, exercise its reasonable best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such of the disclosed information which the Disclosing Party so designates. Disclosing Party understands and agrees that Receiving Party is a governmental entity subject to the Texas Public Information Act, Chapter 552, Texas Government Code(the "Act"). In the event that Receiving Party receives a request for release of some or all of the Information contained In the Evaluation Material, Receiving Party will promptly notify Disclosing Party and otherwise comply with the procedures set forth in the paragraph above. However, notwithstanding anything to the contrary herein, if at any time, in the reasonable opinion of its legal counsel, Receiving Party Is obligated under the Act to release any Information contained In the Evaluation Material, Receiving Party may do so without any liability hereunder. City of Fort Worth 200 Texas Street Page 3 of 5 Fort Worth,TX 76102 March 31,2017 The Receiving Party understands that except and solely to the extent set forth in a definitive agreement between the Parties as to a transaction or business relationship, neither the Disclosing Party nor any of its representatives or advisors have made or make any express or implied representation or warranty as to the accuracy or completeness of the Evaluation Material. The Receiving Party agrees that, except for any breach of this letter agreement, neither the Disclosing Party nor its representatives or advisors shall have any liability to the Receiving Party or any of its representatives or stockholders on any basis (including, without limitation, in contract, tort, under federal or state securities laws or otherwise), and neither the Receiving Party nor its representatives will make any claims whatsoever against such other persons, with respect to or arising out of. a possible business relationship or other transaction involving the parties, as a result of this letter agreement or any other written or oral expression with respect to a possible business relationship or other transaction involving the parties; the participation of such party and its representatives in evaluating a possible business relationship or other transaction involving the parties; the review of or use or content of the Evaluation Material or any errors therein or omissions therefrom; or any action taken or any inaction occurring in reliance on the Evaluation Material, except and solely to the extent as may be included in any definitive agreement with respect to any business relationship or other transaction involving the Parties. At the request of the Disclosing Party, the Receiving Party and its representatives shall promptly, at the Receiving Party's election, either(i) redeliver to the Disclosing Party all written Evaluation Material and any other written material containing or reflecting, or generated from, any information in the Evaluation Material (whether prepared by the Disclosing Party, its advisors, agents, representatives or otherwise)or(ii)subject to applicable law, destroy all written Evaluation Material and any other written material containing or reflecting, or generated from, any information in the Evaluation Material (whether prepared by the Disclosing Party, its advisors, agents, representatives or otherwise) and such destruction shall be certified in writing to the Disclosing Party by an authorized officer supervising such destruction, and will not retain any copies, extracts or other reproductions in whole or in part of such written material. All analyses, compilations, forecasts, studies, summaries, notes, data and other documents and materials whatsoever prepared by the Receiving Party or its representatives based on or which contain or reflect, or are generated from, the information in the Evaluation Material shall be destroyed, and such destruction shall be certified in writing to the Disclosing Party by an authorized officer supervising such destruction. In such event, all oral Evaluation Material shall remain subject to the terms of this letter,agreement. Each Party agrees that unless and until a definitive agreement between the Parties with respect to any business relationship or other transaction involving the parties has been executed and delivered, neither of the Parties will be under any legal obligation of any kind whatsoever with respect to such a business relationship or other transaction by virtue of this or any written or oral expression with respect to such a business relationship or other transaction by any of its directors, officers, employees, agents or any other representatives or its advisors except for the matters specifically agreed to in this letter agreement. Each Party City of Fort Worth 200 Texas Street Page 4 of 5 Fort Worth,TX 76102 March 31,2017 further acknowledges and agrees that(i)the other Party shall have no obligation to authorize or pursue with it or any other Party any business relationship or other transaction involving the Parties, (ii) it understands that the other Party has not, as of the date hereof, authorized or made any decision to pursue any such business relationship or other transaction and (iii) the other Party reserves the right, in its sole and absolute discretion and without giving any reason therefor, to reject all proposals, to pursue a business relationship or other transaction with another entity without prior notice and to terminate discussions and negotiations with it, in each case at any time. The agreements set forth in this letter agreement may be modified or waived only by a separate writing between the Parties expressly so modifying or waiving such agreements. Receiving Party acknowledges and agrees that Disclosing Party would be irreparably injured by a breach of this letter agreement by you or your representatives and that money damages are an inadequate remedy for an actual or threatened breach of this letter agreement because of the difficulty of ascertaining the amount of damage that will be suffered by Disclosing Party in the event that this letter agreement is breached. Therefore, Receiving Party agrees to the granting of specific performance of this letter agreement and injunctive or other non-monetary equitable relief in favor of Disclosing Party as a remedy for any such breach,without proof of actual damages, and Receiving Party further waives any requirement for the securing or posting of any bond in connection with any such remedy. Such remedy shall be the exclusive remedy for Receiving Party's breach of this letter agreement. If any term, provision, covenant or restriction of this letter agreement is held by a court of competent jurisdiction to be invalid,void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this letter agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. This letter agreement shall inure to the benefit of and be binding upon each of the Parties and their respective successors and assigns. It is further agreed that no failure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. This letter agreement contains the entire agreement between the Parties concerning the subject matter hereof and supersedes all previous agreements, written or oral, relating to the subject matter hereof. No modifications of this letter agreement or waiver of the terms and conditions hereof will be binding unless approved in writing by both of the Parties hereto. This letter agreement shall be governed by, and construed in accordance with, the internal laws of the State of Texas, without giving effect to the principles of conflicts of laws thereof. Venue for any action to enforce the provisions of this letter agreement shall be properly laid in any state court located in Tarrant County, Texas or in the United States District Court for the Northern District of Texas—Fort Worth Division. This letter agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute the same agreement. mm City of Fort Worth 200 Texas Street Page 5 of 5 Fort Worth,TX 76102 March 31,2017 It is understood that Company's client related to Project Prince is an intended third party beneficiary of this Agreement and shall have the right to enforce provisions of this Agreement directly against the City of Fort Worth. If you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement,which will constitute our agreement with respect to the matters set forth herein. Very truly yours, DUFF& PHELPS, LLC By: Name: Michael Lateur Title: Managing Director Confirmed and Agreed to: CITY OF FORT WORTH By: Name: Jesus J. 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