Funding Agreement Page 1 of 9
FUNDING AGREEMENT
FOR LEVI’S STADIUM SECURITY AND NEIGHBORHOOD IMPACTS ASSESSMENT
PREAMBLE
This Funding Agreement (“Agreement”) is by and between Bay Area Host Committee, a California 501(c)(6) nonprofit corporation (“BAHC”), Forty Niners SC Stadium Company LLC, a Delaware limited liability company (“StadCo”), and the Santa Clara Stadium Authority, a joint powers agency created pursuant to Section 6532 of the California Government Code (“Authority”). Authority, StadCo, and BAHC may be referred to individually as a “Party” or collectively as the “Parties” or the “Parties to this Agreement.”
RECITALS
A. The Stadium Authority has entered into an Agreement for Services with Guidepost Solutions LLC (Guidepost), dated November 29, 2023 (Guidepost Agreement) to complete a review of security procedures and neighborhood impacts for major Levi’s Stadium NFL and Non-NFL events, in an amount not to exceed $99,800.
B. StadCo is the Tenant at Levi’s Stadium and leases the property for NFL events.
C. BAHC is responsible for coordination and planning of Super Bowl LX and FIFA World Cup 2026 games at Levi’s Stadium.
D. In the interest of collaboration with the Authority, StadCo and BAHC have agreed to fund certain Percentage of Costs (as defined below) in connection with the Guidepost Agreement. The Parties agree that this is a limited, one-time arrangement, and should not be construed as authority or precedent for any future requests by the Authority for funding.
In consideration of the recitals and mutual promises contained herein, the Parties agree as follows:
AGREEMENT PROVISIONS
1. PURPOSE OF AGREEMENT
The purpose of this Agreement is to provide for reimbursement to the Authority by StadCo and BAHC of their respective Percentage of Costs (as defined in Section 2 Funding Obligation below) in connection with the Guidepost Agreement.
2. FUNDING OBLIGATION
A. StadCo shall be responsible for payment of forty-five percent (45%) of the amounts due and payable to Guidepost under the terms of the Guidepost Agreement (collectively, “StadCo’s Percentage of Costs”). The maximum compensation for StadCo’s Percentage of Costs payable to Guidepost under the Funding Agreement Page 2 of 9
Guidepost Agreement is Forty-Four Thousand, Nine Hundred Ten Dollars and No Cents ($44,910.00). Under no circumstances will StadCo be obligated to pay Guidepost Solutions LLC more than the $44,910.00 total and for any costs that are not properly and clearly documented.
B. BAHC shall reimburse the Authority ten percent (10%) of the costs related to the Guidepost Agreement (collectively, “BAHC’s Percentage of Costs”) in accordance with this Agreement. The maximum compensation for BAHC’s Percentage of Costs payable to the Authority in connection with the Guidepost Agreement under the terms of this Agreement is Nine Thousand, Nine Hundred Eighty Dollars and No Cents ($9,980.00). Under no circumstances will BAHC reimburse the Authority for more than the $9,980.00 total and for any costs that are not properly and clearly documented.
3. CONFIDENTIALITY OF WRITTEN MATERIAL
A. Upon completion of the services by Guidepost Solutions LLC, StadCo and BAHC shall be provided a copy of all analysis, reports, work product, and other final documents (collectively, “Written Material”) generated by Guidepost Solutions LLC for the Authority under such agreement or otherwise shared with Authority. Written Material received by StadCo and BAHC is deemed Confidential Information as defined in subsection B below and shall be governed by the terms of this Section 3. All Written Materials are subject to redaction by the Authority to protect public safety and security data and information before its distribution to BAHC.
B. "Confidential Information” means, with respect to a Party hereto, all information or material which either (1) is marked or identified as “Confidential,” “Restricted,” or “Proprietary Information” or other similar marking or identification, or (2) the other Party knew, as recipient, or under the circumstances, should have known, was considered confidential or proprietary by the Disclosing Party (as defined below). Confidential Information shall consist of all information, whether in written, oral, electronic, or other form, furnished in connection with this Agreement by the Disclosing Party or its Representatives (“Representative” is defined as any elected and appointed officials, affiliate, director, officer, employee, agent, advisor or consultant of a Party or any of its subsidiaries or affiliates) to the Receiving Party (as defined below) or to its Representatives.
C. StadCo and BAHC shall hold the Authority’s Confidential Information in confidence. No Party shall make the Authority's Confidential Information available in any form to any third party or use the other's Confidential Information for any purpose other than as specified in this Agreement. The Party providing Confidential Information (“Disclosing Party”) to the other Party (“Receiving Party”) shall remain the sole owner of such information. Except as provided elsewhere within this Agreement, nothing contained in this Agreement shall be construed as granting or conferring any right or license in any Confidential Information or in any patents, copyrights, software or other technology, either expressly or by implication to the Receiving Party, or to its Representatives or to others. The Funding Agreement Page 3 of 9
term Confidential Information shall not include any of the following: (1) information already in possession of, or already known to, the Receiving Party as of the Effective Date without an obligation of confidentiality; (2) information in the public domain at the time of the disclosure, or which, after such disclosure, enters into the public domain through no breach of this Agreement by the Receiving Party or its Representative(s); (3) information lawfully furnished or disclosed to the Receiving Party by a non-party to this Agreement without any obligation of confidentiality and through no breach of this Agreement by the Receiving Party or its Representative(s); (4) information independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party; or (5) information authorized in writing by the Disclosing Party to be released from the confidentiality obligations herein.
D. This Agreement does not diminish, revoke or supersede any existing confidentiality, non-disclosure or similar agreement between the Parties that does not pertain to the subject matter of this Agreement. However, any Confidential Information, whether or not previously disclosed, that pertains to the subject matter of this Agreement shall be governed by the terms of this Section 3 which shall supersede any such previous agreement with respect to such Confidential Information and any Confidential Information relating to the subject matter of this Agreement that was exchanged under such previous agreement shall be treated as though it was exchanged under this Agreement as of the date of such exchange.
E. The Receiving Party will treat all Confidential Information of the Disclosing Party, no matter written, electronic, or oral, as confidential and proprietary, and the Receiving Party shall only use such information in furtherance of this Agreement. As such, the Receiving Party shall hold in confidence the Confidential Information of the Disclosing Party and ensure that such Confidential Information is not disclosed to any other person or entity, except as expressly permitted by this Agreement or as authorized in writing by the Disclosing Party.
The Receiving Party shall not disclose Confidential Information of the Disclosing Party received under this Agreement to any person other than its Representatives who require knowledge of such Confidential Information in furtherance of this Agreement. The Receiving Party shall inform its Representatives of the confidential nature of the Confidential Information of the Disclosing Party and advise such Representatives of the limitations on the use and disclosure and prohibition on making copies or summaries of such Confidential Information. The Receiving Party shall be responsible for any breach of this Agreement by its Representatives. Neither Party shall use the Confidential Information of the other Party for any commercial purpose.
F. If the Receiving Party becomes legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand, or similar process) to disclose any Confidential Information of the Disclosing Party or is requested Confidential Information pursuant to the California Public Records Act or similar law, the Receiving Party will provide the Disclosing Party with written notice of such an occurrence (if so permitted) as Funding Agreement Page 4 of 9
soon as possible. Thereafter, at its sole costs and expense, the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If the disclosing Party (i) waives compliance, (ii) fails to respond to the Receiving Party within five (5) business days, or (iii) after providing the notice and assistance required under this Section, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
So long as it is consistent with applicable law, the Receiving Party will not oppose action by, and the Receiving Party will cooperate with, the Disclosing Party, at the Disclosing Party’s sole cost and expense, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information. If the Disclosing Party fails to obtain such protective order or other remedy, or if the Disclosing Party waives compliance with the requirements of the preceding sentence, the Receiving Party will disclose only that Confidential Information that it is legally required to disclose, and will exercise commercially reasonable efforts, at Disclosing Party’s expense, to obtain reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
G. In the event the Receiving Party discloses, disseminates or releases any Confidential Information, except as expressly permitted by this Agreement, such disclosure, dissemination or release will be deemed a material breach of this Agreement and the Disclosing Party may demand prompt return of all Confidential Information previously provided to the Receiving Party. As soon as the Receiving Party becomes aware that it has made an unauthorized disclosure of Confidential Information, the Receiving Party shall take any and all necessary actions to recover the improperly disclosed Confidential Information and immediately notify Disclosing Party regarding the nature of the unauthorized disclosure and the corrective measures being taken. Each Party agrees that any breach of their confidentiality obligations could cause irreparable harm to the other Party, the amount of which would be extremely difficult to estimate.
Accordingly, it is understood and agreed that monetary damages would not be a sufficient remedy for any material breach of this Agreement and that specific performance and injunctive relief shall be appropriate remedies for any breach or any threat of such breach. The Parties shall not be entitled to, and hereby waive, any monetary claims (including attorneys’ fees) for, or damages arising from or related to, a breach of this Agreement.
H. Notwithstanding the termination of this Agreement, this Confidentiality Section shall survive the expiration or earlier termination of this Agreement
4. PAYMENT OF ELIGIBLE COSTS
Invoices with reasonable supporting documentation (i.e., copies of receipts, statements, proof of purchase) will be submitted to StadCo and BAHC evidencing StadCo and BAHC’s respective Percentage of Costs in relation to Guidepost Solutions LLC’s provision of services based on hours expended and Funding Agreement Page 5 of 9
reimbursable expenses, as provided for under Exhibit B – Schedule of Fees in the Agreement between Authority and Guidepost Solutions LLC. StadCo shall submit payment to Guidepost Solutions LLC within thirty (30) days of receipt of invoices. BAHC shall submit payment to the Authority within thirty (30) days of receipt of invoices.
5. TERM; TERMINATION OF AGREEMENT
A. The term of this Agreement shall be from the Effective Date until the date the services identified in Recital A have been fully performed and paid for, unless terminated earlier.
B. Any Party may terminate this Agreement without cause by giving the other Parties written notice (“Notice of Termination”) which clearly expresses that Party’s intent to terminate the Agreement. Notice of Termination shall become effective no less than ten (10) calendar days after all Parties receive such notice.
StadCo and BAHC shall have no obligation to pay any of their respective Percentage of Costs incurred on or after the effective date of the termination, but shall remain responsible for their respective Percentage of Costs incurred prior to the effective date of the termination.
C. In the event of termination of this Agreement, the Authority shall prepare a statement of all StadCo and BAHC’s respective Percentage of Costs with reasonable supporting documentation (as described above) incurred by the Authority. StadCo and BAHC will only reimburse the Authority for any of their respective Percentage of Costs incurred prior to the effective date of the termination.
6. AMENDMENT
This Agreement may only be amended in a writing signed by all Parties. The Authority, StadCo, and BAHC acknowledge and agree that subsequent parties may be added to this Agreement by way of amendment to establish such subsequent parties’ responsibility for their respective Percentage of Costs.
7. INTEGRATED DOCUMENT
This Agreement represents the entire agreement between the Authority, StadCo, and BAHC. No other understanding, agreements, conversations, or otherwise, with any representative of any Party prior to execution of this Agreement shall affect or modify any of the terms or obligations of this Agreement. Any verbal agreement shall be considered unofficial information and is not binding upon any Party.
8. SEVERABILITY CLAUSE
In case any one or more of the provisions in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other provisions, which shall remain in full force and effect.
Funding Agreement Page 6 of 9
9. WAIVER
Waiver of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement.
10. NOTICES
All notices to the Parties shall, unless otherwise requested in writing, be sent to the Authority addressed as follows:
Santa Clara Stadium Authority
Attention: Jovan D. Grogan, Executive Director
1500 Warburton Avenue
Santa Clara, California 95050
or by facsimile at (408) 247-9857
to StadCo addressed as follows:
Forty Niners SC Stadium Company LLC
Attention: Peter Wilhelm, Chief Financial Officer
Forty Niners SC Stadium Company, LLC
SAP Performance Facility
4949 Marie P. DeBartolo Way
Santa Clara, CA 95054
to BAHC addressed as follows:
Nixon Peabody LLP
One Embarcadero Center, 32nd Floor
San Francisco, CA 94111
United States of America
Attention: Robert A. Weikert ([email protected] )
Sonia A. Nayak ([email protected])
Matthew Richards ([email protected])
Copy: Zaileen Janmohamed ([email protected]) Ruth Mizobe Shikada ([email protected])
If notice is sent via facsimile, a signed, hard copy of the material shall also be mailed. The workday the facsimile was sent shall control the date notice was deemed given if there is a facsimile machine generated document on the date of transmission. A facsimile transmitted after 1:00 p.m. on a Friday shall be deemed to have been transmitted on the following Monday.
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11. CAPTIONS
The captions of the various sections, paragraphs and subparagraphs of this Agreement are for convenience only and shall not be considered or referred to in resolving questions of interpretation.
12. LAW GOVERNING CONTRACT AND VENUE
This Agreement shall be governed and construed in accordance with the statutes and laws of the State of California. The venue of any suit filed by any Party shall be vested in the state courts of the County of Santa Clara, or if appropriate, in the United States District Court, Northern District of California, San Jose, California.
13. COUNTERPARTS AND SIGNATURES
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument, and the Parties agree that signatures on this Agreement, including those transmitted by facsimile, shall be sufficient to bind the Parties.
The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives. The Effective Date is the date that the final signatory executes the Agreement. It is the intent of the Parties that this Agreement shall become operative on the Effective Date. [Signatures on following pages]
Funding Agreement Page 8 of 9
SANTA CLARA STADIUM AUTHORITY
a California joint powers agency
Approved as to Form: Dated:
GLEN R. GOOGINS
Stadium Authority Counsel
JŌVAN D. GROGAN
Executive Director
Santa Clara Stadium Authority
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“AUTHORITY”
FORTY NINERS SC STADIUM COMPANY LLC
a Delaware limited liability company
By:
(Signature)
Name:
Title:
Date:
“STADCO”
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BAY AREA HOST COMMITTEE
a California 501(c)(6) nonprofit corporation
Dated: _________________________
By:
(Signature)
Name:
Title:
Local
Address:
Email
Address:
Telephone: ( )
Fax: ( )
“BAHC”