HomeMy WebLinkAboutContract 29698 CITY SECRETARY�� Y
Alternative Assets Agency Account Agreement
Bank One Trust Company, N.A. ("Bank One") is authorized to open an Alternative Assets
Agency Account (Account") for the City of Fort Worth, ("City"). City will deliver to Bank One
property ("Assets") selected by the City at their discretion which will be attached as an
addendum or addenda which form a part of the Agreement (collectively "Agreement"). If City
desires to add additional Assets to the Account, Bank One agrees to accept such additional
Assets, such addition shall be evidenced by the inclusion of such Assets on subsequent periodic
statements issued to City. Bank One will hold the Assets, subject to the following provisions:
§1 SERVICES TO BE PROVIDED BY BANK ONE. At the time City signs the
Agreement, City will, with respect to Assets described in each Schedule of Property,
deliver to Bank One copies of all relevant documents and/or any evidence of ownership
lalown to the City to enable Bank One to perform its duties under the Agreement. Bank
One shall be (ally authorized to rely upon the information contained in such documents
furnished from time to time by City, anything in the Agreement to the contrary
notwithstanding:
If requested by the City, Bank One will create separate sub-accounts for accounting and
distribution purposes under this Agreement for no additional charge..
The attached "Oil, Gas and Mineral Property Addendum" is incorporated into the
Agreement by reference and provides additional details regarding services for oil, gas and
mineral properties Assets.
The relevant addendum or addenda are hereinafter individually referred to as
"Addendum" and collectively as "Addenda."
§2 REINVESTMENT OF INCOME FROM ASSETS. Income received with respect to
Assets will be (check all that apply):
• Transferred to City on a periodic basis as follows:
• Monthly
Quarterly
Other
Reinvested by adding it to the principal of the Account from which it was derived.
§3 STATEMENTS. Bank One will forward to City periodic statements showing a
summary of transactions during the preceding accounting period and a periodic statement
listing all of the Assets. City ackr owledges the right to receive written confirmation of
each transaction but waives that right on the condition that periodic statements of activity
will be famished to City. Uffless written objection is made to such statement within 90
days from the receipt thereof, it shall be considered approved and ratified }' cQ�
Bank One shall have no liability with reference to any matter shown thei i �i� 00
agrees that the City will have the right to audit the financial and business i ectj
One that relate to this Agreement (collectively "Records") at any time
of this Agreement and for one (1) year thereafter in order to determine c n1aY '�30
03-16-04A10 : 05 RCVD IGI NAL
this Agreement. Throughout the Term of this Agreement and for one (1) year thereafter,
Bank One shall snake all Records available to the at a location in the City acceptable to
both parties following reasonable advance notice by the City and shall otherwise
cooperate fully with the City during any audit. Notwithstanding anything to the contrary
herein, this Section shall survive expiration or earlier termination of this Agreement.
§4 FEES. For Bank One's services hereunder, City agrees to pay the following fees:
1. 4.0 percent of the gross income received on any producing properties;
2. 5.0 percent fee on any lease bonuses or seismic bonuses that Bank One negotiates,
with a minimum of$100.00 per deal negotiated.
3. 4.0 percent of any non-executive mineral interest or nonparticipating royalty
interest where the lease deal is made by another party other than the City.
4. 5.0 percent of delay rental or shut-in royalty payments paid to the City.
5. $24.00 annual fee for each asset given by the City to be managed by Bank One,
with a minimuin of a $500.00 annual fee. The $500.00 is a minimum and not an
additional charge added to the income and asset charge. Once the income and
asset charges assessed are greater than $500.00, the $500.00 annual fee shall not
apply. Each asset leased will be set up as a separate asset for monitoring
purposes. If a lease expires without any production, the lease asset will be deleted
and no further charges will be assessed against the City for that lease.
6. The fee charge for opening the accouunt with the Trust Department will be waived.
7. Bank One shall also be entitled to receive additional compensation for uunusual or
extraordinary services and reimbursement for all charges, assessments,
commissions and other out-of-pocket expenses incurred by Bank One in the
provision of the services described herein, provided Bank One provides City
notice of the need for additional compensation and City provides Bank One
written authorization prior to the occurrence of such expenses. City authorizes
Bank One to charge all such compensation and expenses directly to the Account.
§5 NOTICES. All notices or other connnunication hereuunder shall be in writing..Notice
or other communication shall be sent to the address set forth below each parties'
respective signature unless such party otherwise directs. Bank One may, in its discretion,
accept City's oral direction with subsequent written confirmation, provided, however, that
written confirmation of oral instructions provided by City shall in no way affect any
action Bank One takes in reliance upon the oral instructions. Bank One may
electronically record any telephone calls with notification to caller from the City.
§6 GOVERNING LAW. If any action, whether real or asserted, at law or in eauitv. arises
on the basis of any provision of this Agreement, venue for such a ti � n amoge courts located in Tarrant County, Texas or the United States ir�i' �' e
Northern District of Texas —Fort Worth Division. This Agreemen sl ���
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it
accordance with the laws of the State of Texas.
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§7 COMPLIANCE WITH LAWS ORDINANCES RULES AND REGULATIONS. This
Agreement will be 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.
§8 GOVERNMENTAL POWERS. It is understood that by execution of this
Agreement, the City does not waive or surrender any of it governmental powers or rights.
§9 ASSIGNMENT. Bai-Ac One may not assign, transfer or otherwise convey any of its
rights or obligations under this Agreement to any party without the prior written consent
of the City, which consent shall not be unreasonably withheld or delayed, conditioned on
(i) the prior approval of the assignee or successor and a finding by the City Council that
the proposed assignee or successor is financially capable of completing the terms of this
Agreement and (ii) the proposed assignee or successor has executed a written agreement
with the City under which it agrees to assuime all covenants and obligations of Bank One
under this Agreement, in which case such assignee or successor shall thereafter be deemed
"{definition of other party" for all purposes tinder this Agreement.
Captions and headings used in this Agreement are for reference purposes only and shall
not be deemed a part of this Agreement
§10 MISCELLANEOUS.
(a). Unless otherwise provided in an Addendum to the Agreement, this Agreement will
terminate in the event of written notice by either party to the other at least 45days prior to
the effective date of such termination. The termination of the Agreement will not affect
or preclude the consummation of any transactions, which were initiated prior to the
effective date of such termination. Upon termination, the Assets will be distributed to the
City Within 30 days after the effective date of such termination, Bank One will render to
City or City's representative a final statement of the transactions from the date of the last
statement to the date of the transfer of the Assets. Upon transfer of the Assets, Bank One
will be discharged and released from any further liability under the Agreement.
(b) In the event no ftiids or insufficient funds are appropriated and budgeted or are
otherwise imavailable by any means whatsoever in any fiscal period for payments due
Linder this contract, then the City will ininediately notify Bank One of such occurrence
and this contract shall be terminated on the last day of the fiscal period for which
appropriations were received without penalty or expense to the City of any kind
whatsoever, except to the portions of annual payments herein agreed upon for which
Rinds shall have been appropriated and budgeted or are otherwise available. Provided,
however, that this Section is not intended to grant to the City an independent ground for
termination of this Agreement separate and apart from any grounds for termination for
non-appropriation or non-availability of fiends which would be provided to City by reason
of Tex. Const. Ann. Art. 11, Sec. 5 and 7.
(c) Neither party to the Agreement may transfer or assign its interest h r@K,,�}6-Li �G1 D
written consent of the other; provided, however, that Bank One may reonlrn Mmviiion7
assign its interest to any affiliate of BANK ONE CORPORATION. The provisions of§7
of the Agreement, together with the indemnification provisions of the Addenda attached
hereto, shall survive any termination, amendment or expiration of the Agreement and
shall be binding on City's successors, assigns, personal representatives, heirs and
legatees.
(d) Bank One is hereby specifically authorized to release information about the Account
to other affiliates of BANK ONE CORPORATION.
(e) Bank One agrees that the City shall, until the expiration of three (3) years after final
payment under this Agreement, have access to and the right to examine any directly
pertinent books, documents, papers and records of the transactions relating to this
Agreement. Bank One agrees that the City shall have access during normal working
hours to all necessary bank and banking facilities and shall be provided adequate and
appropriate workspace in order to conduct audits in compliance with the provisions of
this'section. The City shall give Bank One reasonable advance notice of intended audits.
(f) The Agreement, together with the attached Addenda, represents the entire agreement
between the parties and may be modified or amended only upon the mutual written
consent of the pal-ties.
§11 NO JOINT VENTURE, PARTNERSHIP, AGENCY. This Agreement will not be
construed in any form or manner to establish a partnership, joint venture or agency,
express or implied, nor any employer-employee, borrowed servant or joint enterprise
relationship by and among the parties. The City shall be an independent contractor and
shall be responsible at all times for directing its employees in the course of their duties.
Bank One shall be responsible at all times for directing its employees in the course of
their duties.
§12 SEVERABILITY. The provisions of this Agreement are severable, and if any word,
phrase, clause, sentence, paragraph, section or other part of this Agreement or the
application thereof to any person or circurnstance shall ever be held by any court of
competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of
this Agreement and the application of such word, phrase, clause, sentence, paragraph,
section, or other part of this Agreement to other persons or circumstances shall not be
affected thereby and this Agreement shall be construed as if such invalid or
unconstitutional portion had never been contained therein.
§14 NO THIRD PARTY RIGHTS. The provisions and conditions of this Agreement are
solely for the benefit of the City and Bank One, and any lawful assign or successor of
Bank One, and are not intended to create any rights, contractual or otherwise, to any other
person or entity.
§15 FORCE MAJEURE. If, by reason of Force Majeure as hereinafter defined, any party shall
be rendered wholly or partially unable to carry out its obligations under this Agreement,
then such party shall give written notice of the particulars of such Force Majeure to the
other party within 90 days after the occurrence thereof. The obligations of the party
giving such notice, to the extent affected by such Force Majeure, shall be suspended
during the continuance of the inability claimed and for no longer p(Fi- —,
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party shall be in good faith exercise its best efforts to remove and over of
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The term "Force Majeure" as utilized herein shall mean and refer to acts of God; strikes,
lockouts or other industrial disturbances; acts of public enemies; orders of any kind of the
government of the United States, the State of Texas, or any other civil or military
authority; insurrections; riots; epidemics; landslides; earthquakes; lightning; fires;
hurricanes; storms; floods; washouts; or other natural disasters; arrest; restraint of
government and people; civil disturbances; explosions; breakage or accidents to
machinery, pipelines or canals; or other causes not reasonably within the control of the
party claiming such inability.
§16 PARAGRAPH HEADINGS. The paragraph headings contained herein are for the
convenience in reference and are not intended to define or limit the scope of any
provision of this Contract.
§17 COUNTERPARTS. This Agreement may be executed in one or more counterparts and
each counterpart shall, for all purposes, be deemed an original, but all such counterparts
shall together constitute but one and the same instrument
IN WITNESS WHEREOF, the parties have executed the Agreement as of the date set
forth below their respective signature.
ATTEST: TY FORT RTH
°
City Secretary Marc A. O
Assistant City Manager
APPROVED AS TO FORM BANK ONE TRUST COMPANY,
AND LEGALITY N.A.
Ass ista t City A, ormey Vice President
Contract `Authoriaation
Date
CAR
5 �, y,y,vuGr� �
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Oil, Gas and Mineral Property Addendum
Attached and made .part of that certain Agency Account Agreement ("Agreement") between THE CITY
OF FORT WORTH, a home rule municipal corporation located in Denton, Tarrant and Wise Counties
("City) and Bank One Trust Company, N.A. ("Bank One"), dated ,
2004.
This Addendum is applicable for the administration by Bank One of oil, gas and mineral properties
("Properties") owned by City which are described on the Schedule of Property attached hereto. Title to all
Properties shall remain in City and Bank One shall administer and manage such Properties in accordance
with the duties and responsibilities set forth below. Terms that are defined in the Agreement shall have
the same meaning herein. In the event of a conflict between the provisions of the Agreement and the
Addendum,the provisions of the Addendum shall control.
DUTIES/RESPONSIBILITIES. In addition to all the duties and responsibilities outlined in the
Agreement, Bank One is hereby instructed, as indicated below where specific authorities are marked
"YES" and upon written authorization from the City for each asset to act on behalf of City for the
performance of the following duties with respect to the interest of City in the Properties. Bank One shall
have no responsibility or liability with respect to those duties that are marked "NO".
YES NO BANK ONE'S AUTHORITY
[X] [ ] Assist in the development of lease and bid documents.
[ ] [X] Execute oil, gas and mineral leases and subleases.
[X] [ ] Review of proposals submitted to the City
[X] [ ] Negotiate oil, gas and mineral leases and subleases.
[X] [ ] Verify oil and gas division/transfer order interests and income received
therefrom.
[X] [ ] Execute oil and gas division/transfer order instruments.
[X] [ ] Negotiate other mineral transactions including, but not limited to, farm-
out agreements, seismic permits,unitization and/or pooling agreements.
[ ] [X] Execute other mineral transactions including, but not limited to, farm-out
agreements, seismic permits, unitization and/or pooling agreements.
[X] [ ] Negotiate cash and/or installment sales, options, assignments, exchanges
and partition of mineral interests if instructed by City, or for City's
review.
[ ] [X] Execute,with approval of City, cash and/or installment sales,
options,assignments, exchanges, and partitions ,r, i
[X] [ ] Contract with the approval of the City, third parties for independent
audits, engineering services, geological services, casualty and/or liability
insurance,appraisals, environmental surveys and field inspections.
[X] [. ] Receive from third parties, all payments or fiords arising out of Property
transactions.
§2. STANDARD OF CARE Bank One undertakes to perform only such duties as are specifically set forth in
the Agreement it being expressly understood that there are no implied duties hereunder. Bank One shall
not be responsible for any liability, loss, cost, suit, damage or expense (including attorney fees and
expenses) incurred by City, including without limitation, cleanup costs, costs of remediation, diminution
of property value, fines, penalties, court costs, civil or criminal sanctions, arising out of or resulting from
(i)title defects; (ii) any condition on the Properties that violates any applicable local, state or federal law
or regulation; (iii) the prior administration of the Properties; (iv) the prior, currently existing, or fixture
uses of the Properties; (v) the breach or failure of any third party pursuant to any lease or sublease
arrangements with respect to the Properties; (vi) the failure of any third party to properly maintain or
close abandoned wells; (vii)the loss of title to mineral interests resulting from the running of prescription
or (viii) investment performance; excluding such liabilities, losses, costs, suits, damages or expenses
arising out of or resulting from the gross negligence or willful misconduct of Bank One. In no event will
Bank One be liable for any consequential, indirect or special damages, even if Bank One has been advised
of the possibility of such damages.
§3. INDEMNIFICATION OF BAND ONE. TO THE EXTENT PERMITTED BY LAW, CITY AGREES
TO INDEMNIFY BANK ONE, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENT,
AFFILIATES, AGENTS, SUCCESSORS AND ASSIGNS (HEREINAFTER COLLECTIVELY
BANK ONE PARTIES")AND HOLD THE BANK ONE PARTIES HARMLESS FOR AND FROM
ANY LIABILITY, LOSS, COST, SUIT, DAMAGE OR EXPENSE (INCLUDING REASONABLE
ATTORNEY FEES AND EXPENSES) ARISING FROM ANY CLAIM OF ANY PARTY
RESULTING FROMACTIONS BANK ONE TAKES INACCORDANCE WITH THE PROVISIONS
OF THE AGREEMENT, EXCEPT SUCH LIABILITY, LOSS, COST, SUIT, DAMAGE OR
EXPENSE ARISING OUT OF OR RESULTING FROM THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF BANK ONE.
BANK ONE AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS,
AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS,
LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT
LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS(INCLUDING ALLEGED DAMAGE
OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR
PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE
OCCASIONED BY(i) BANK ONE'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF
THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL
MISCONDUCT OF BANK ONE, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES,
CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO THE
MANAGEMENT OF ALTERNATIVE ASSETS OR THE PERFORMANCE OF THIS
AGREEMENT, EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH
SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF
THE CITY OR ITS OFFICERS,AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS,AND
IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH BANK ONE AND
CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
§4. ENVIRONMENTAL. Should Bank One become aware any condition existing on any of the Properties
that would violate of any applicable local, state or federal environmental law or regulation, Bank One
will bring it to the attention of City, but it is agreed that Bank One shall have no responsibility to
investigate the Properties' records or soil conditions to determine whether any environmental hazard
exists. In addition,to the extent permitted by law, City agrees to further indemnify and hold harmless the
Bank One Parties from and against any such liability, loss, cost, suit, damage or expense including
reasonable attorney fees and expenses), causes of action, claims, demands, assessments and judgments of
whatever kind and nature arising out of any governmental decree, order or request that Bank One test for,
monitor, clean up, remove, remediate, contain,treat, detoxify or neutralize any Hazardous Substances on
or affecting the Properties or arising from or in any way related to (i) the presence, disposal, release or
threatened release of any Hazardous Substances on, over, under,from or affecting the Properties; (ii)any
personal injury or property damage arising out of or related to any presence, disposal, release or
threatened release of any Hazardous Substances; or (iii) any violation of or failure to comply with any
Environmental Laws. As used in this paragraph, the term "Hazardous Substances" shall mean any
substance, product, or waste that is hazardous or toxic and that is regulated by municipal, state, federal,
foreign or other law or regulation, and "Environmental Laws" shall mean and include any and all federal,
state or local laws, statutes, ordinances, rules or regulations now or at any time hereinafter in effect
which regulate, relate to or impose liability or standards of conduct concerning any Hazardous
Substances.
§5 INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Bank One shall operate as
an independent contractor in each and every respect hereunder and not as an agent, representative or
employee of the City. Bank One shall have the exclusive right to control all details and day-to-day
operations relative to this Agreement, subject to its limitations, and shall be solely responsible for the acts
and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and
invitees. Bank One acknowledges that the doctrine of rrespondeat superior will not apply as between the
City and Bank One, its officers, agents, servants, employees, contractors, subcontractors, licensees and
invitees. Bank One further agrees that nothing in this Agreement will be construed as the creation of a
partnership or joint enterprise between the City and Bank One.
§6 AMENDMENT/TERMINATION. This Addendum may be amended in writing by mutual consent of the
parties. This Addendum, and any amendment thereto, may also be terminated by City or Bank One in
accordance with the termination provisions of the Agreement of which this Addendum forms a part.
IN WITNESS WHEREOF, the parties have executed this Addendum as of the date set forth
below their respective signature.
ATTEST: C TY OF FORT TIC
01CAlti,Ci Secretary Marc A. Ott, Ass ant City Manager
APPROVED AS TO FORM BANK ONE TRUST COMPANY,
AND LEGALITY N.A.
Assist it ity Attorney Vice Pr F
'ontract Authorization 3