What’s Wrong with the City’s Management Contract for Fair Park: Part 3

 

If you’ve just joined, bless you. I’m dissecting the most recent, slimmed-down contract for the public/private mega buck partnership Dallas is considering to hand over Fair Park. We are publishing this mega post because there is a special City Council briefing Monday at 1:00 pm to dissect. Check out parts 1 and 2 here and here.

Part III could be titled: “One Year to Park Conceptualization”.

As a reminder, to aid in separating language taken directly from the 12-page slim contract and my interpretations, I’ve left the original language as is.  Sections where I note where “articles” and “sections” (major and minor buckets) have been left out of the shortened contract, I’ve tried to summarize their contents.  Long and/or complex paragraphs I have inserted “returns” to break them into more easily digestible chunks, their wording is unchanged.   My opinions are underlined from here on …

ARTICLE VI

MAINTENANCE, ALTERATIONS, AND CONSTRUCTION

Section  6.16 Community Park.   During year one (1) of the Term of this Agreement, the Foundation shall undertake conceptual designs for a signature community park to be located within Fair Park in the vicinity of Robert B. Cullum Boulevard, Martin Luther King Junior Boulevard, Grand Avenue, and Second Avenue, as shown on Exhibit 6.16, to be open to the public free of charge so as to allow the surrounding neighborhood year-round access to green space, a children’s play area, and recreational opportunities.

Pursuant to Section 6.05(a), the Foundation shall obtain the approval of the Director prior to the commencement of any construction of the community park.  Subject to any necessary consents or approvals, the community park referenced in this Section 6.16 shall remain open to the public free of charge on a year-round basis, including during the annual run of the State Fair of Texas.

The Foundation acknowledges that construction of this community park is the Park Board’s top priority.

The Foundation shall commence construction of the signature community park within twenty-four (24) months of funding becoming available pursuant to Section 3.03.

Conceptual designs for the Community Park (of undetermined size) are now due in year one.  The designs were previously due within 6-months.  Why the 6-month slip? In this version the Community Park’s construction has been guaranteed to begin within two years of funding becoming available.  The funding Section 3.03 refers to is the 2017 bond package. This seems to say that the first shovel of dirt moves in 2019. This may account for the year allowance to create the designs – no rush.  Just remember, no bond allocation, no park. However it’s better than their being “dependent on the ability to raise the necessary funding” in the last version with no timetable or funding source listed.

Removed from ARTICLE VI of the latest public version: Sections 6.01, 6.02, 6.03, 6.04, 6.05, 6.06, 6.07, 6.08, 6.09, 6.10, 6.11, 6.12, 6.13, 6.14, and 6.15.

ARTICLE XIII
DEFAULTS, REMEDIES AND REVERSION.

Section 13.05  Annual Appropriations and Bond Funding. 

Notwithstanding anything to the contrary in this Agreement, in the event of any failure by the City (i) to include in any City budget the Management Fee due under the Agreement, or (ii) to make annual appropriations in any year for the Management Fee or any other monetary obligations becoming due and payable by the City under or by reason of this Agreement during such year (any of the foregoing events, a “Non-Payment Event”), the Foundation shall have the right to terminate this Agreement effective not less than ninety (90) nor more than one hundred eighty (180) days after providing written notice to the City.  Notwithstanding anything to the contrary in this Agreement, the Foundation’s sole and exclusive remedy for any Non-Payment Event shall be the termination of this Agreement.

If the City doesn’t pay the annual Management Fee or any other promised monies, the Foundation, but NOT the City, can terminate the contract. In earlier versions, the City could starve the Foundation of funds AND also terminate the contract.  This wording says that the Foundation can be starved, but they can still elect to keep the contract in force. 

(b)     Without limiting any of the foregoing, the parties acknowledge and agree that Bond Funds are necessary to the Capital Needs Inventory of Fair Park and thus necessary to the success of Fair Park.    Therefore, notwithstanding, the City commits to the Foundation to put forth a Bond package to the  City’s voters as described in Section 3.03, the Foundation agrees that neither the City’s failure to include the full amount of the Bond Funds, nor the voters’ failure to approve the Bond Funds shall constitute a Non-Payment event or a default by the City under this Agreement.  Nonetheless, if by the fourth anniversary following the failed Bond Funds vote the City has not secured alternative   funding sources to satisfy the purposes set forth in Section 3.03, the Foundation shall thereafter have the right to terminate the Agreement as set forth in this section 13.05.  For the purposes set   forth herein, alternative funding sources shall in no event include Park Department budget funds.

If the proposed bond funds aren’t forthcoming, nor are they replaced by other funding within four years of a failed bond vote, the Foundation can terminate the contract. Again, the City can starve the Foundation but the power to terminate the contract only lies with the Foundation, not the City.

In part 4,  I take us home…and if you make it that far, I owe you a drink!

 

Remember:  High-rises, HOAs and renovation are my beat. But I also appreciate modern and historical architecture balanced against the YIMBY movement.  If you’re interested in hosting a Candysdirt.com Staff Meeting event, I’m your guy. In 2016, my writing was recognized with Bronze and Silver awards from the National Association of Real Estate Editors.  Have a story to tell or a marriage proposal to make?  Shoot me an email [email protected].