Detailed Breakdown of What’s Wrong with the City’s Management Contract for Fair Park: Part 1

Every news outlet I’m aware of has cast doubt on the process and contents of the city’s proposed management contract to outsource Fair Park’s future to a non-profit entity.

Many people have said that we should give 78-year-old Walt Humann and his plan a chance. Let’s say that is fine. But let’s also understand that this is a 20-year contract with two 5-year extensions. Only one group of the people and their good intentions will be around to see this contract’s completion … the people of Dallas.  Everyone else will be dead, retired, or in another role. How many times will the Fair Park Texas Foundation board staff turnover during the next 30 years?  How many mayors, city council members, and Parks Board members will cycle through the system in 30 years?

This contract is the only mechanism that crystallizes and protects the interests of the people of Dallas for the 30-year term of this contract. It’s our pre-nup. That’s why it has to be encompassing AND specific. It’s the future’s rule book.

Here’s my look, page by page, on where I think the problems lay. It’s pretty long, so we have broken up one loooong post into four. I’ll start first by asking how did the management contract between the city and the Fair Park Texas Foundation, over 100 pages in its last iteration before the Parks Board vote, slim down to just a dozen pages?

A lot got left out.

Whether this new version only represents those sections that have been significantly modified since the Parks Board approval, or if the deletion of certain sections is simply obfuscation, I cannot say.  But a contract without terms, which this version doesn’t have, is not a contract. In making this 12-page document available to the public without explanation is confusing. For example, a search for “State Fair” in the new document nets one result stating that the community park will be open during State Fair.

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 (some may be in italics) from here on …

ARTICLE I

PURPOSE AND TERM

Section 1.01 Purpose.

(b) Performance Objectives.  The City, acting through its Park and Recreation Board (the “Park Board”), has identified certain performance objectives for the Foundation to pursue in the course of Fair Park Management, subject to the terms and conditions set forth in this Agreement.  These performance objectives include

• (i) the creation and maintenance of a community park to be located in Fair Park, as more fully described in Section 6.16;
• (ii) the support and enhancement of Fair Park as a national historic landmark;
• (iii) the maintenance and enhancement of the various cultural institutions located in Fair Park; and
• (iv) the maintenance and enhancement of the sporting and recreation venues located in Fair Park.

The Foundation acknowledges that these performance objectives form the City’s primary purposes for entering in to this Agreement.  The City acknowledges that the aforementioned performance objectives are non-exclusive and that the Foundation may pursue additional performance objectives and objectives with respect to Fair Park, subject to the terms and conditions of this Agreement.

Immediately on page one of the Management Contract there is only one specific “performance objective” listed – the construction of a community park of unspecified size. The other three could be translated as meaning the maintenance of the status quo.  “Enhancement,” “maintain,” and “support” are ambiguous (though required) but must go further. Thought of another way, this section says the Fair Park Foundation can do whatever it wants as long as it vaguely fulfills these objectives. Is this in the city’s best interest? Put more crudely, say you want “enhanced” breasts, you don’t just give the doctor a check hoping when you wake up your “bee stings” will be exactly what you want. “Enhancement” is anything from a cup to a wheelbarrow. 

What’s missing are detailed, quantifiable objectives. For example, transform Fair Park into a park with a specified ratio of greenspace to concrete OR lists and timelines for restoration projects OR utilization increases for the Cotton Bowl, etc. But this isn’t a contract for restoring Fair Park.  It is a management agreement between the City and the Fair Park Foundation.  Only AFTER the contract is signed and the city largely waives its rights, will the Foundation investigate, develop, get proposals, evaluate designs and implement those unknown and unquantified “enhancements”.  Cup or wheelbarrow, the City’s only “input” is a bill for the next 30 years.

Removed from ARTICLE I of the latest public version:

Section 1.02 covering the contract’s effective date, commencement data and initial 20-year term.

Section 1.03 covering the contract’s renewal terms (two 5-year extensions).

ARTICLE II

OWNERSHIP, TRANSFERS, AND TRANSITION

Section 2.05  Fair Park Contracts

(d)  Athletic Events.  The Foundation shall assume the City’s payment obligations under those Fair Park Contracts which are related to athletic events taking place at the Cotton Bowl at Fair Park. The parties acknowledge that a portion of the Management Fee is comprised of various game stipends subject to appropriation amounts due by City under the Athletic Event contracts described in this section 2.05 (d).  Therefore, should City fail to appropriate any such amounts in any year, the Management Fee shall thereafter be permanently reduced to that amount less the unappropriated amount; provided however, the Foundation shall have a cure period of eighteen (18) months to find a suitable game replacement resulting in no impact to the management fee.

I read this to say that if the city doesn’t pay the “various game stipends” that are included in the annual Management Fee (because for example, Texas-OU game moves and no stipend is then required), that annual fee will be permanently decreased by that amount. But the Foundation has 18 months to sign up another game requiring similar stipends.  Considering the paucity of games in the Cotton Bowl, three college football games and one soccer game a year, isn’t “up” the only way to go?

Removed from ARTICLE II of the latest public version:

Section 2.01 Ownership of Land and Improvements

Section 2.02 Foundation Access

Section 2.03 Transfer of Fair Park Personal Property. Subsections (b), (c) and (d) were removed and included in subsection (a).  Subsection (f) stating ownership of Historic Furnishings remains with the city may also be contained in subsection (a) but the wording is less precise.

Section 2.04 Fair Park Intellectual Property. Subsections (a), (c), (d), (e), (f), (g), (h) and (i) were removed.  Only (b) remains but it was completely changed to only reflect Fair Park trademarks use by the City. All other intellectual property (trademarks, designs, etc.) rights designations and uses have been removed.

Section 2.05 Fair Park Contracts

(c) was titled “Obligations Subject to Appropriations” and stated that pursuant to existing Fair Park Contracts, “the Foundation will assume the City’s obligations with respect thereto only to the extent that the Foundation receives funding from the City expressly and specifically designated for such particular obligation.”  It basically means that the Foundation takes over the city’s responsibilities for existing contracts for things like, “upkeep, maintenance, repair, security, storage, or other services.”

(d) Was titled “Insurance Obligations” and said that “the Foundation will only assume the City’s obligations under any of the Fair Park Contracts with respect to insurance insofar as such obligations are in accordance with Section 5.03.”

Also left out were subsections (e), (f), and (g).

(e) Children’s Aquarium stated that the City retains the obligations of the City’s contract with the Dallas Zoological Society.

(f) State Fair of Texas Contract stated that the State Fair needed to approve the assignment of their contract with the City to the Foundation. Although the older version said a copy of the State Fair contract was attached in Exhibit 2.05 (f), it was not and remains unattached to this version of the Management Contract.

(g) Texas Department of Transportation Contract for Parry Avenue Parking Lot stated that the city’s contract with TXDoT for this lot located on TXDoT land was not assignable to the Foundation without TXDoT approvals.

Section 2.06 Fair Park Technology.  Subsections (a), (b), (c), (d), (e), (f), (g), (h) and (i) were removed and covered the ownership, maintenance, etc. of existing computers, software, telephone systems, etc.

Section 2.07 Reversion or Other Conveyance Upon Expiration or Termination. Basically, when the Management Contract of over, what Fair Park property reverts to City ownership (computers, buggies, etc.).

Section 2.08 Disclaimer of Warranties; AS IS Condition. Foundation takes ownership of property knowing it’s without warranty.  If it’s broken, Foundation pays for the fix or replacement, not the City.

Section 2.09 Applicable Laws and Governmental Authority. The contract is subject to applicable laws.  Subsections (a), (c), (d), (e), (f), (g), (h) and (i) were removed

Stay tuned for parts 2, 3, and 4.

 

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].