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HomeMy WebLinkAboutContract 27243 CITY SECRETARY CONTRACT NO. AGREEMENT REGARDING PROJECT PARCELS This Agreement Regarding Project Parcels ("Agreement") is made and entered into by and between the City of Fort Worth ("City"), a home rule municipal corporation organized under the laws of the State of Texas; FW Sports Authority, Inc. (the "Sports Authority"), a public non-profit Texas industrial development corporation created on behalf of the City pursuant to the Texas Development Corporation Act (as codified at Section 4B of V.T.C.S. Article 5190.6 et seq.), and LaGrave Reconstruction Company, L.L.C. ("LRC"), a Texas limited liability company. A. On or about August 23, 2001 LRC executed a Memorandum of Understanding ("MOU") with the City and the Sports Authority under which (i) LRC proposed to build a baseball stadium and other facilities on certain real property in the City (collectively, the "Ballpark") and (ii) the City proposed to build a parking facility on adjacent real property to serve persons visiting or otherwise using the Ballpark. As outlined in the MOU, (1) the Ballpark and the adjacent parking facility will be used for the public purposes of conducting baseball games, at both the professional and amateur levels, and other compatible events, all of which will be open to the general public and (ii) the City believes that development of the Ballpark will stimulate the positive development of an area of the City that currently is underdeveloped and contains substandard and deteriorating improvements. The MOU contemplates that a legally binding "Master Agreement" will be negotiated and executed by and between the City, the Sports Authority and LRC relating to the construction of the Ballpark and adjacent parking facilities and other matters subsequently identified by the parties. The MOU was approved by the Sports Authority on March 16, 2001 and the City Council, through M&C C-18505, on March 20, 2001. B. In accordance with Resolution No. 2707, adopted by the City Council on February 13, 2001, the City Council authorized the Sports Authority to acquire through the power of eminent domain certain tracts of real property in the vicinity of the proposed Ballpark and specifically depicted in Resolution No. 2707 for development purposes related to the Ballpark. Under the MOU, the exercise of this power was conditioned on a good faith commitment to first acquire those parcels actually needed for the Ballpark through reasonable negotiations and at market prices. C. LRC has informed the City and the Sports Authority that it has made good faith attempts to purchase a number of parcels subject to the Sports Authority's exercise of eminent domain under Resolution No. 2707. As part of those efforts, LRC has stated that it has been unsuccessful in acquiring those parcels depicted on Exhibit "A" of this Agreement (the "Project Parcels"). Accordingly, LRC has requested that the Sports Authority proceed to acquire the Project Parcels through the power of eminent domain. D. The Sports Authority agrees to proceed with the exercise of eminent domain in order to acquire the Project Parcels only in accordance with this Agreement. Page I of r. Ita r, Agreement Regarding Project Parcels bemcen r Cits of Fort worth; FW Sports Authority. Inc.and LaGrav c Reconstruction Co, L I.-(' NOW, THEREFORE, the City, the Sports Authority and LRC agree as follows: 1. The statements set forth in the recitals above are true and correct and constitute the basis upon which the City, the Sports Authority and LRC have entered into this Agreement. The MOU and Resolution No. 2707 are incorporated herein by reference for all purposes. 2. LRC represents and warrants to the City and the Sports Authority that it has, prior to the execution of this Agreement, made good faith efforts through reasonable negotiations to acquire the Project Parcels from their owners at fair market prices. 3. The City, the Sports Authority and LRC hereby acknowledge and agree that all of the Project Parcels are necessary to the public purposes inherent in the development and operation of the Ballpark. LRC has requested that the Sports Authority exercise its power of eminent domain to acquire the Project Parcels only with the intent to accelerate the completion of the Ballpark. 4. LRC shall pay (i) all costs for the acquisitions of the Project Parcels, whether through negotiated sales, through eminent domain proceedings or otherwise; (ii) all costs that are related to such acquisitions; and (iii) all costs for legal and other professional services related to such acquisitions, provided that LRC has approved the engagement of such legal and professional services. LRC acknowledges and agrees that neither the City nor the Sports Authority shall have any responsibility or liability for the costs of acquiring the Project Parcels or any other costs related thereto. 5. The City will appraise or will cause to be appraised the current fair market value of the Project Parcels and will provide the Sports Authority and LRC with such appraisals. Following receipt of that notification, LRC shall deposit one hundred twenty- five percent (125%) of the full, aggregate sum of such appraisals with an escrow agent acceptable to both the Sports Authority and LRC pursuant to an escrow agreement negotiated by the escrow agent, the Sports Authority and LRC (the "Escrow Funds"). The Sports Authority will use the Escrow Funds to acquire the Project Parcels and to pay all costs associated therewith. If LRC fails to deposit any Escrow Funds with the escrow agent, such failure shall constitute a material breach of this Agreement and shall relieve the City and the Sports Authority of any obligations to LRC under this Agreement. 6. After deposit of the Escrow Funds, the City Attorney, representing the Sports Authority, and/or outside legal counsel retained by the Sports Authority and approved by LRC (which approval shall not unreasonably be delayed or denied), shall use their best efforts to negotiate the terms and conditions of the purchases of all of the Project Parcels by offering the respective owners the fair market value thereof. If any owner of a Project Parcel rejects the fair market value offer and makes a higher counteroffer, the Sports Authority shall submit the counteroffer to LRC for LRC's approval. LRC shall notify the Sports Authority within five (5) business days of its decision regarding the counteroffer. Paec-,of 0 Agreement Regarding Project Parcels between Gtv of Fort Worth, Fw Sports Authority, Inc, and LaGra�e Reconstruction Co., L t-C If LRC rejects any counteroffer, the Sports Authority shall proceed to use its best efforts to acquire the affected Project Parcel through eminent domain proceedings. 7. If any owner of a Project Parcel offers to settle outside of the eminent domain proceeding for an amount in excess of the fair market value offered to such owner, the Sports Authority shall submit the proposed settlement offer to LRC for LRC's approval. LRC shall notify the Sports Authority within five (5) business days of its decision regarding the counteroffer. The Sports Authority shall not be authorized to make any settlement without the prior approval of LRC. If LRC rejects any proposed settlement, the Sports Authority shall continue with the eminent domain proceeding. 8. If a Master Agreement is terminated by either the City or the Sports Authority on account of a breach thereof by LRC or any successor or assign of LRC, or if a Master Agreement is not finally executed by the City, the Sports Authority and LRC by March 31, 2002, or if the Ballpark is not constructed as provided in a Master Agreement due to legal intervention by third parties, because of economic impracticability or because of any other event outside the control of LRC, LRC acknowledges and agrees that the City and the Sports Authority will suffer damages, the amount of which are difficult or impossible to measure. As a result, in any such event, the Sports Authority may retain title to any Project Parcels acquired through eminent domain proceedings as liquidated damages, and not as a penalty, the value of which the City, the Sports Authority and LRC hereby acknowledge constitutes a reasonable approximation of actual damages that the City and the Sports Authority will incur. However, the Sports Authority will convey to LRC title to any Project Parcels acquired by the Sports Authority through any means other than eminent domain proceedings so long as the acquisition thereof was fully funded by LRC. 9. LRC, its officers, members, employees, agents and subcontractors, shall indemnify, protect, defend and hold harmless the Sports Authority, its officers, directors, affiliates, employees, agents and subcontractors; the City, its City Council members, employees, affiliates, agents and subcontractors (each an "Indemnitee") from and against any and all damages, losses, liabilities (joint or several), payments, obligations, penalties, claims, litigation, demands, defenses, judgments, lawsuits, proceedings, costs, disbursements or expenses (including, without limitation, fees, disbursements and reasonable expenses of attorneys, accountants and other professional advisors and of expert witnesses and costs of investigation and preparation) of any kind or nature whatsoever (collectively "Damages"), directly or indirectly resulting from, relating to or arising out of(i) the acquisition by any means of any Project Parcel; the operation of the Sports Authority to the extent such operation relates, directly or indirectly, to any Project Parcel; and/or (ii) any breach or non-performance, partial or total, of this Agreement by LRC or any of its officers, members, employees, agents or subcontractors; and/or (iii) any inaccuracy in any representation or warranty made or given by LRC or any of its officers, members or employees and that is set forth in this Agreement; and/or (iv) any actual or threatened violation of or non-compliance with, or remedial obligation arising under, any federal, state or local environmental law or laws and arising from any event, condition, circumstance, activity, practice, incident, action or plan relating in anv wav to anv Project Page 3 of 6 Agreement Regarding Project Parcels between City of Fort Worth, FW Sports Authority, Inc.,and LaGra�e Reconstruction Co., L.L.C- Parcel, subject to any remedial obligation of the City or Sports Authority that is set forth in the Master Agreement. In the event that any Damages are brought or threatened to be brought against any Indemnitee, such Indemnitee shall promptly notify LRC in writing (provided, however, that any failure to so notify LRC shall not relieve LRC of its obligations under this section unless (i) such failure to so notify directly precludes LRC's investigation and defense of any claim as a matter of law and (ii) LRC does not otherwise have knowledge, either actual or constructive, of such claim) and LRC, at LRC's sole cost and expense, shall resist and defend the same with legal counsel selected by LRC and acceptable to the Indemnitee and with reasonable participation by the Indemnitee. In no event shall LRC or legal counsel employed by LRC admit liability in any matter on behalf of any Indemnitee without the advance written consent of the City or the Sports Authority. 10. LRC, ON BEHALF OF LRC, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, HEREBY RELEASES ANY AND ALL INDEMNITEES FROM ANY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DIRECT, CONSEQUENTIAL, INCIDENTAL AND SPECIAL DAMAGES, AND INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR LOST SAVINGS) THAT LRC, ITS OFFICERS, MEMBERS, AGENTS, SERVANTS AND/OR EMPLOYEES MAY INCUR OR ALLEGE TO HAVE INCURRED, OR ANY CLAIM OR CAUSE OF ACTION THAT LRC, ITS OFFICERS, MEMBERS, AGENTS, SERVANTS, EMPLOYEES AND/OR SUBCONTRACTORS MAYHAVE OR ALLEGE, ARISING FROM, IN CONNECTION WITH OR RELATED TO (i) THE ACQUISITION BY ANY MEANS OF ANY PROJECT PARCEL; THE OPERATION OF THE SPORTS AUTHORITY TO THE EXTENT SUCH OPERATION RELATES, DIRECTLY OR INDIRECTLY, TO ANY PROJECT PARCEL;AND/OR (ii) ANY BREACH OR NON- PERFORMANCE, PARTIAL OR TOTAL, OF THIS AGREEMENT BY LRC OR ANY OF ITS OFFICERS, MEMBERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS; AND/OR (iii) ANY INACCURACY IN ANY REPRESENTATION OR WARRANTYMADE OR GIVENBYLRC OR ANY OF ITS OFFICERS, MEMBERS OR EMPLOYEES AND THAT IS SET FORTH IN THIS AGREEMENT; AND/OR (iv) ANY ACTUAL OR THREATENED VIOLATION OF OR NON-COMPLIANCE WITH, OR REMEDIAL OBLIGATION ARISING UNDER, ANY FEDERAL, STATE OR LOCAL ENVIRONMENTAL LAW OR LAWS AND ARISING FROM ANY EVENT, CONDITION, CIRCUMSTANCE, ACTIVITY, PRACTICE, INCIDENT, ACTION OR PLAN RELATING IN ANY WAY TO ANY PROJECT PARCEL, SUBJECT TO ANY REMEDIAL OBLIGATION OF THE CITY OR SPORTS AUTHORITY THAT IS SET FORTH IN THE MASTER AGREEMENT. THE RELEASE SET FORTH IN THIS SECTION 10 SHALL REMAIN IN FULL FORCE AND EFFECT EVEN IF ANY CLAIM DIRECTLY OR INDIRECTLY RESULTS FROM, ARISES OUT OF, RELATES TO OR IS ASSERTED TO HAVE RESULTED FROM, ARISEN OUT OF OR BEEN RELATED TO THE SOLE NEGLIGENCE OR CONCURRENT NEGLIGENCE OF AN INDEMNITEE. THE ONLY CIRCUMSTANCES UNDER WHICH THIS RELEASE SHALL NOT APPLY SHALL BE IN CONNECTION WITH LIABILITIES Puce 4 of 6 Agreement Regarding Project Parcels bet"cen City of Fort worth; Fw Sports Authority, Inc.,and LaGrave Reconstruction Co, L L.0 DIRECTLY ATTRIBUTABLE TO THE WILLFUL MISCONDUCT OF AN INDEMNITEE 11. Nothing contained in this Agreement or any collateral agreements between the City, the Sports Authority and LRC is intended by the parties to create a partnership or joint venture between the parties, and any implication to the contrary is hereby expressly disavowed. It is understood and agreed that this Agreement does not create a joint enterprise, nor does it appoint any party as an agent of any other party, for any purpose whatsoever. 12. Any notices or other communications required or desired to be given to another party shall be made in writing and delivered by (i) courier; (ii) overnight delivery service; (iii) facsimile (provided that the sender receives and can produce electronic confirmation of receipt); or (iv) the United States Postal Service, postage prepaid and by certified mail, return receipt requested, to the following addresses: To the City and the Sports Authority: With a copy to: City of Fort Worth City of Fort Worth 1000 Throckmorton 1000 Throckmorton Fort Worth, TX 76102 Fort Worth, TX 76102 Attn: City Manager Attn: Economic Development Director To LRC: With a copy to: LaGrave Reconstruction Co., L.L.C. DeHay& Elliston, L.L.P. 16980 N. Dallas Pkwy. 901 Main St., Suite 3500 Dallas, TX 75248 Dallas, TX 75202 Attn: Carl Bell Attn: Scott Berry 13. This Agreement is intended to be and shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 14. Should any provision of this Agreement be held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall in no way affect or diminish the other provisions of this Agreement. 15. This Agreement and all of the transactions contemplated herein and to be consummated pursuant hereto are performable in Tarrant County, Texas and shall be governed by the laws of the State of Texas. The parties agree that venue for any proceedings brought to determine the rights of the parties hereunder shall be in a state court of competent jurisdiction in Tarrant County, Texas or the United States District Court for the Northern District of Texas—Fort Worth Division. 16. This Agreement, including any exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement Page 5 of 6 Agreement Regarding Project Parcels between City of'Fort Worth, FW Sports Authority, Inc ,and LaGrace Reconstruction Co-, L1.C- between the City, the Sports Authority and LRC, their assigns and successors in interest, as to the matters contained herein. This Agreement shall be effective as of the last date indicated below. 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. This Agreement may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. This Agreement shall not be amended unless executed in writing by all parties. CITY UW TH: By: Mike Groomer Assistant City Manager ATTESTED BY Date:-//—/f—O/ , '4A_1'4 � 2'�) - _' APPROVED AS TO FORM AND LEGALITY: By: Peter Vaky Assistant City Attorney M&C: FW SPO TS AUTHORTIY, INC.: CA-U" Jim Lane President Date: —D LAG RE N T ION COMPANY, L.L.C. By: 't ' W >�� /�5P Tff Al Date: Page 6 of 6 j?��r Agreement Regarding Project Parcels between 11I d e�1151-W-11�,.�•' City of Fort Worth; FW Sports Authority, Inc.:and LaGrave Reconstruction Co., L.L.C. �f oo( ? �G'�Gw .[ EXHIBIT "A" AGREEMENT REGARDING PROJECT PARCELS The following parcels of land constitute the Project Parcels: 1. Lot 2, Block AR, Union Land Company Addition, Fort Worth, Tarrant County, Texas. 2. Lots 21 through 26, Block 20, North Fort Worth Addition, Fort Worth, Tarrant County,Texas. 3. Lots 11-14, Block 233 and Lots 11-14, Block 234 and a portion of the two closed streets (N. Jones St. and N. Grove St.), North Fort Worth Addition, Fort Worth, Tarrant County,Texas. The Project Parcels are further depicted on the map attached hereto. Exhibit"A" Page 1 M O HAP p©© PS APTO ao° oo J+ ,� � sue•+ �