Icearizona 6-25

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James R. Condo (#005867)

Patricia Lee Refo (#017032)
Adam E. Lang (#022545)
SNELL & WILMER L.L.P.
One Arizona Center
400 E. Van Buren
Phoenix, Arizona 85004-2202
Telephone: 602.382.6000
jcondo@swlaw.com
prefo@swlaw.com
alang@swlaw.com
Attorneys for Plaintiffs IceArizona Manager Co LLC and
IceArizona Hockey Co LLC
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
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Snell & Wilmer
L.L.P.
LAW OFFICES
One Ariz ona Center, 400 E. Van Buren
Phoenix , Arizona 8 5004-2202
(602) 382-6000
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ICEARIZONA MANAGER CO LLC, a

Delaware Limited Liability Company;
ICEARIZONA HOCKEY CO LLC, a
Delaware Limited Liability Company,
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Plaintiffs,
v.
CITY OF GLENDALE, an Arizona
Municipal Corporation; CITY OF
GLENDALE CITY COUNCIL, in its
official capacity; JERRY WEIERS, in
his official capacity as City of Glendale
Mayor; IAN HUGH, in his official
capacity as City of Glendale Vice
Mayor and Councilmember; BART
TURNER, in his official capacity as
City of Glendale Councilmember;
LAUREN TOLMACHOFF, in her
official capacity as City of Glendale
Councilmember; JAMIE ALDAMA, in
his official capacity as City of Glendale
Councilmember; GARY SHERWOOD,
in his official capacity as City of
Glendale Councilmember; SAMUEL
CHAVIRA, in his official capacity as
City of Glendale Councilmember; DICK
BOWERS, in his official capacity as
City of Glendale Acting City Manager;
MICHAEL BAILEY, in his official
capacity as City of Glendale City
Attorney,
Defendants.
No. CV2015-007216
RESPONSE TO MOTION TO
MODIFY TEMPORARY
RESTRAINING ORDER WITH
RESPECT TO JULY 1, 2015
PAYMENT OR, IN THE
ALTERNATIVE, REQUEST TO
DEPOSIT PAYMENT INTO
ESCROW
Hearing: June 29, 2015 at 10:30 a.m.
(Assigned to The Honorable
Dawn Bergin)
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The City of Glendale seeks to avoid, or escrow, the $3.75 million payment due to
Plaintiffs on July 1, 2015, or, alternatively, asks this Court to raise the bond amount to
$4 million. The City makes these requests even though the City admits that it hasnt
actually taken steps to cancel the contract[,]1 and that the payment is for services already
rendered by Plaintiffs. Becauseas the City admitsthe contract is still in full force and
effect, preservation of the status quo requires that the City make its July 1, 2015 payment
for services rendered. The City offers no legal basis upon which this Court could excuse
the City from paying for the services it has already received. Simply put, the relief the
City requests would both fundamentally alter the status quo and completely undermine the
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efficacy of this Courts June 12, 2015 Temporary Restraining Orderto which the City
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stipulated.
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Restraining Order With Respect to July 1, 2015, Payment or, in the Alternative, Request
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to Deposit Payment into Escrow (the Motion) in its entirety, and decline to modify the
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TRO.
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The Court should, therefore, deny the Motion to Modify Temporary
MEMORANDUM OF POINTS AND AUTHORITIES

I.
RELEVANT FACTUAL BACKGROUND
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Much of the Citys brief factual and procedural background section is irrelevant to
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the pending Motion.2 The Court has already found, and the City has already stipulated,
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that Plaintiffs have established all of the prerequisites for the TRO;3 the facts fail to justify
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the Citys attempt to avoid paying Plaintiffs for services already rendered.
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A.
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The Court Correctly Decided the Payment and Bond Issues at the TRO
Hearing
At the TRO hearing, the City specifically asked the Court for the same relief it
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requests in the Motion. Indeed, the City specifically requested permission to avoid, or
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escrow, the July 1, 2015 payment, but the Court inquired: [W]hy should [Plaintiffs] not
get payment for services theyve already performed under a contract that the City
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See TRO Hrg Tr., 14:25-15:1, June 12, 2015, attached as Exhibit A.
See Motion at 3-5.
See TRO, 2:9-14.
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acknowledges was in place and valid at the time?4 Hearing no satisfactory response, the
Court correctly entered the TRO.
The City also requested that Plaintiffs post a $15 million bond, claiming that $15
million equaled the exposure the City faced if Plaintiffs continued to perform for the
next year.5 Again, the Court appropriately asked, whats the potential loss to the City if
you all ultimately prevail?6 The City failed to articulate any harm that it would suffer by
continuing to accept (and pay for) Plaintiffs performance, and the Court appropriately set
a $250,000 bond.
The Citys arguments in the Motion are the same flawed arguments that failed at
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the TRO hearing. The Court should not revisit either of these arguments now.
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B.
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Because Plaintiffs Performed (or Will Perform) Through July 1, So

Should the City
By seeking to avoid paying for Plaintiffs performance through July 1, 2015, the
City basically asks the Court to confer a multi-million dollar windfall on the City.7 The
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facts that led to the entry of the TRO do not justify such an inequitable result for several
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reasons.
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First, the City has known that Mr. Tindall works for Plaintiffs since at least
September 2013, and Plaintiffs informed the City of Ms. Frisonis proposed (and
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limited) engagement, in writing, prior to retaining her as a consultant (an
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engagement which is now terminated).8
The City took no action on this
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knowledge, never expressed any concern over the hires, and never once claimed
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that any conflict existed under A.R.S. 38-511 until earlier this month. Allowing
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the City to avoid the July 1 payment (for services already rendered) would
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inequitably reward the Citys dilatory conduct and penalize Plaintiffs reasonable
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reliance on the Citys inactions over the last nineteen months.
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See TRO Hrg Tr., 34:2-4, Exhibit A.

See TRO Hrg Tr., 26:12-13; 27:5-8, Exhibit A.
See TRO Hrg Tr., 27:21-22, Exhibit A.
See TRO Hrg Tr., 34:9, Exhibit A (arguing that the Court can, and should,
approve
a windfall to the City).
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See April 30, 2015 Email from C. Tindall to M. Bailey, attached as Exhibit B.
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tool to remedy any actual public harm. Indeed, since Plaintiffs filed the lawsuit,
City officials have given interviews stating [w]e want the Arizona Coyotes in
Glendale and we want to see them succeed. As weve consistently indicated to the
team, we are prepared to negotiate a mutually beneficial approach to address
concerns.9 The request to avoid the July 1, 2015 payment (for services already
rendered) represents just another unfair attempt by the City to gain leverage.
threatened to breach, the Agreement. Rather, Plaintiffs fulfilled (or will fulfill) all
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of the contractual obligations and duties required of them from April 1, 2015
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through June 30, 2015.
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As set forth below, the Citys arguments do not support the unequitable and unjust
Second, the City is using A.R.S. 38-511 as a negotiating tactic, not as a
Third, the City acknowledges that Plaintiffs have not breached, or
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result the City seeks.
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II.
LEGAL ARGUMENT
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A.
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The City fails to address the applicable standard for modification of a TRO. Rule
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65(c) allows a dissolution or modification of a preliminary injunction on a showing of
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changed circumstances. Nu-Tred Tire Co. v. Dunlop Tire & Rubber Corp., 118 Ariz.
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417, 420, 577 P.2d 268, 271 (Ct. App. 1978) (emphasis added). This Rule does not afford
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a party with a means of attack[ing] the original basis for the injunction. Id. The City
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does not address this standard, nor does it show how any circumstances changed between
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the TRO hearing and the date it filed the Motion. Instead, the City attacks this Courts
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sound rulings at the TRO hearing. Under Nu-Tred, the Court can deny the Motion
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outright. Nevertheless, Plaintiffs turn to the merits of the Citys arguments.
The City Does Not Satisfy the Requirements for Modification of a TRO
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See Associated Press, Glendale officials willing to renegotiate arena lease with
Coyotes, ESPN.com (June 16, 2015), http://espn.go.com/nhl/story/_/id/13096100/
glendale-willing-renegotiate-arizona-coyotes-arena-lease
(quoting
Assistant
City
Manager, Tom Duensing).
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B.
In Arizona, temporary restraining orders preserve the status quo.10 See Farnsworth
v. Hubbard, 78 Ariz. 160, 170, 277 P.2d 252, 259 (1954) (We find no abuse of discretion
in maintaining the status quo of the parties during this litigation. Otherwise the final
judgment could be rendered meaningless . . . .) (internal citation omitted). Indeed, the
very purpose of injunctive relief is to preserve the relative positions of the parties until a
trial on the merits can be held. Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981).11
[T]he courts task when granting a preliminary injunction is generally to restore, and
preserve, the status quo ante, i.e., the situation that existed between the parties
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immediately prior to the events that precipitated the dispute. Asa v. Pictometry Intl
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Corp., 757 F. Supp. 2d 238, 243 (W.D.N.Y. 2010) (emphasis added); see also Camenisch,
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451 U.S. at 395. This Courts TRO preserves the status quo by [r]equiring the City of
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Glendale to continue to perform and comply with all of the Citys obligations under the
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Agreement.12
The Fundamental Purpose of the TRO Is to Preserve the Status Quo
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The Motion seeks to fundamentally alter this Court-ordered status quo, by relieving
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the City of its most significant obligation under the Agreementto pay Plaintiffs for
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services rendered. As explained below, as a matter of law, the City has not shown that it
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should be relieved of its obligation to pay for the benefits it has already received.
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1.
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The Status Quo Requires the City to Make the July 1, 2015 Payment
to Plaintiffs
Because the TRO obligates both Plaintiffs and the City to perform under the
Agreement, the status quo means that the City must pay Plaintiffs on July 1, 2015, for
services rendered. A federal district court reached this exact conclusion under similar
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Ironically, the Motion also argues that the purpose of injunctive relief is to
maintain[] the status quo pending a trial on the merits. See Motion at 9. Plaintiffs agree
with this proposition. Contrary to the arguments in the Motion, however, maintaining the
status quo requires the City to continue to perform under the Agreement, which
necessarily includes making all payments due to Plaintiffs during the pendency of the
case.
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Arizona courts often look to federal precedent for guidance on Rule 65, Ariz. R.
Civ. P. See Paris-Phoenix Corp. v. Esper, 112 Ariz. 320, 321, 541 P.2d 917, 918 (1975)
(The question of notice [under Rule 65(a)(2)] has been answered in the federal
courts).
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See TRO, 3:6-7.
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facts in Asa, 757 F. Supp. 2d at 240.
In Asa, two companies, Blom and Pictometry, entered into a 2009 License
Agreement. Id. Under that agreement, Pictometry granted Blom an exclusive, non-
transferable license to use Pictometrys technology within a defined geographic area in
Europe. Id. In exchange, Blom agreed to pay Pictometry license fees and royalties. Id.
In 2010, Pictometry gave Blom written notice terminating the License Agreement,
effective immediately, because of Bloms alleged breach. Id. at 241. Blom filed suit for
an injunction. Id. Among other relief, Blom sought an order enjoining Pictometry from
dishonoring its contractual obligations and commitments pending the outcome of the
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litigation on the merits. Id. The district court granted Blom relief, required both parties to
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perform under the contract, and fashioned an injunction that as closely as possible
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restore[d] the parties to their status prior to the genesis of the dispute. Id. at 243. To
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reach this conclusion, the district court emphasized the fact that the parties had a
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continuous contractual relationship for several years before the relationship was
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abruptly terminated by Pictometry; therefore, the district court issued the injunction to
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maintain the parties contractual relationship pending a final decision on the merits. Id.
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at 243-44.
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Like Asa, this dispute involves the unilateral, and abrupt, attempted termination of
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a contract after performance by both parties for a number of years. This Court properly
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enjoined the City from terminating the Agreement, and the TRO binds the parties to the
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status quo as of the date of the TRO. The Citys attempt to modify the TRO, now, to
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relieve the City of its primary obligation under the Agreement to avoid its July 1 payment
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to Plaintiffs, completely defeats the status quo. For the same reasons the Asa court
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maintained the status quo by requiring continued mutual performance, this Court should
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not relieve the City of its obligation to make the July 1 payment.
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2.
Relieving the City of Its Obligation to Pay Plaintiffs Would Be

Inequitable
The City asserts without analysis or citation that modification of the TRO will
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not harm or otherwise prejudice Plaintiffs. See Motion at 1. This argument defies
reason. As the City acknowledged at the TRO hearing, the City pays Plaintiffs in arrears.
Plaintiffs count on those quarterly payments, and provided services in anticipation of
those quarterly payments. Because the City admits that the Agreement has not been
terminated, there is no reason why this Court should authorize the City to breach the
otherwise valid and enforceable Agreement by withholding payment from Plaintiffs.
Simply put, the Agreement requires the City to make the July 1, 2015 payment to
Plaintiffs. Estrada v. Planet Ins. Co., 26 Ariz. App. 103, 105, 546 P.2d 372, 374 (Ct.
App. 1976) (Consequently, where the provision of the contract is plain and unambiguous
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on its face, it must be applied as written and the court will not pervert or do violence to the
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language used or expand it beyond its plain and ordinary meaning or add something to the
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contract which the parties have not put there.).
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3.
Maucher v. City of Eloy Is Inapposite
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The City relies exclusively on Maucher v. City of Eloy for its argument that it is
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entitled to a windfall. 145 Ariz. 335, 701 P.2d 593 (Ct. App. 1985). Maucher, however,
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does not stand for that proposition.
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In Maucher, a city engineer entered into a contract with the City of Eloy in clear
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violation of A.R.S. 38-503. Id. at 336, 701 P.2d at 594. The engineer failed to (1)
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disclose his substantial interest in the contract in the official records and (2) comply with
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the mandatory competitive bidding statutes then in effect. Id. When a payment dispute
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arose between the engineer and the City of Eloy, the engineer sued for breach and the city
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cancelled the contract under A.R.S. 38-506. Id. at 335-36, 701 P.2d at 593-94. In light
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of the clear violation of A.R.S. 38-503, the Court of Appeals held that the city
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appropriately cancelled the contract such that the engineer could not recover damages.
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Significantly, the city did not seek to recover funds expended on the project from the
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engineer. Id. at 337, 701 P.2d at 595. Instead, [b]ecause a substantial portion of the
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contract had already been performed by both parties, this action was treated by the city as
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voiding the balance of the original contract Id.

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Maucher is distinguishable from this case in at least four significant ways.

a.
The Agreement Is in Full Force and Effect
First, unlike the contract in Maucher, the City has not terminated the Agreement.
On the contrary, the central issue in this case is whether the City may act on its improper
vote to terminate the Agreement under A.R.S. 38-511(A). The Court has found, and the
City has stipulated, that Plaintiffs demonstrated a strong likelihood of success on the
merits of their claims. The continued efficacy of the Agreement here is a critical factual
distinction between Maucher and this case.
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Maucher Does Not Stand for the Proposition That the City
Can Escape Paying Plaintiffs for the Last Three Months of
Work
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Second, Maucher does not stand for the proposition that the City can escape
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payment for work already performed. As noted above, the City of Eloy cancelled the
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contract, but expressly declined to seek disgorgement of the fees already paid. Id. at 337,
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701 P.2d at 595. By contrast, the City argues that Plaintiffs past performance should go
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uncompensated. Maucher does not stand for such an inequitable result.
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c.
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Maucher Involved Different Remedies Under a Different

Statute
Third, Maucher relied on the remedies in A.R.S. 38-506; the City relies on
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A.R.S. 38-511. A.R.S. 38-511(E) limits the Citys right to recover money to any fee
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or commission paid or due to any person significantly involved in initiating, negotiating,
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securing, drafting or creating the contract on behalf of the [City]. (Emphasis added).
Under this statute, the Citys has no basis to claim that it can somehow avoid the $3.75
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million payment, in arrears, to Plaintiffs for services the City has already received.
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Maucher does not hold otherwise.
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d.
Mauchers Policy Considerations Are Wholly Absent
Fourth, the public policy interests promoted by Maucher are simply absent here.
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Under Arizona law, [a] statutory conflict exists within the meaning of A.R.S. 38-501
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to 38-511 when a public official has a substantial pecuniary or proprietary interest in one
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of his or her decisions. Shepherd v. Platt, 177 Ariz. 63, 65, 865 P.2d 107, 109 (Ct. App.
1993) (emphasis added). The object of conflict of interest statutes is to remove or limit
the possibility of personal influence which might bear upon an officials decision. State
v. Ross, 214 Ariz. 280, 284, 151 P.3d 1261, 1265 (Ct. App. 2007), as amended (Mar. 28,
2007) (quoting Yetman v. Naumann, 16 Ariz. App. 314, 317, 492 P.2d 1252, 1255 (1972))
(emphasis added).
capacity, entering into a contract on behalf of the City for his own personal gain.
Moreover, the City does not allege that Mr. Tindall or Ms. Frisoni made any decision on
behalf of the City of Glendale, nor does it allege that they were they authorized to make
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any decision on behalf of the City of Glendale with respect to the Agreement. Although
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Maucher properly prevented a city engineer from self-dealing, no such policy
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considerations exist here.
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4.
Unlike here, Maucher involved a public official, in his official
Allowing the City to Deposit the July 1, 2015 Payment in Escrow

Would Render the TRO Meaningless
The Citys renewed plea to deposit the payment into escrow would also
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fundamentally alter the status quo. The City has two primary obligations under the
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Agreement: (i) allow Plaintiffs access to the Arena; and (ii) pay Plaintiffs for services
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rendered. If the City were allowed to pay the July 1 payment into an escrow, the TRO
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would be rendered effectively meaningless. Plaintiffs have performed the services and the
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City has received the benefit.
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The cases cited by the City do not stand for the proposition that the City may
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escape its clear obligation to make payment for services rendered by paying into an
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escrow. See IRIS Mgmt. Grp., LLC v. Malan, 329 F. Appx 112, 114 (9th Cir. 2009)
(unpublished) (interpreting Nevada law in upholding the district courts decision requiring
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the Defendant to place a portion of his profits from a Management Agreement with
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Plaintiffs into an escrow account after determining that Plaintiff was likely to obtain a
judgment against [Defendant] under the [] Agreement and that there was evidence that
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[Plaintiff] might be unable to recover a judgment against [Defendant] without an escrow
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requirement. The escrow requirement enforced against the Defendant applied only to a
portion of Defendants profits and left untouched a substantial monthly payment made
from Plaintiffs to Defendant.); see also Leathers v. Medlock, 499 U.S. 439, 443 (1991)
(discussing the factual background of the case, the Court mentioned the Arkansas
Chancery Courts decision to require the State of Arkansas to place disputed sales taxes
levied against cable television services in escrow until the constitutional challenge was
decided).
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Simply put, allowing the City to take the benefit of the bargain without paying
Plaintiffs would eviscerate the status quo.
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C.
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After considering the arguments of both sides at the TRO hearing, the Court set
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bond in the amount of $250,000. The City now reargues that the Court should increase
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the bond amount by 1600%. There is no basis for such a drastic change. The Court
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should decline to alter the bond amount because: (1) the issue was already litigated and
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decided; (2) the Court set an appropriate bond amount; and (3) there is no legal basis to
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require a $4 million bond.
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The Court Should Not Alter the Bond Amount
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The City Already Litigated, and Lost, the Bond Argument
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The City had a full opportunity to address the bond amount with the Court during
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the June 12, 2015, TRO hearing.13 The City requested Plaintiffs post a $15 million bond
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and argued its position during the hearing.14 This Court rejected the Citys $15 million
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request, and the attempt to revisit this issue is an impermissible attempt to relitigate the
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merits.15 Nu-Tred, 118 Ariz. at 420, 577 P.2d at 271 (noting that parties cannot use a
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motion to modify a TRO as a means to challenge the merits of the original order).
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2.
The Court Set an Appropriate Bond Amount
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The Court appropriately exercised its discretion to set the $250,000 bond amount.16
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Ariz. R. Civ. P. 65(e) requires the setting of a bond in an amount that the court deems
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See TRO Hrg Tr., 26:1-30:19, Exhibit A.
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TRO Hrg Tr., 26:12-13; 27:5-28:9, Exhibit A.
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TRO Hrg Tr., 30:16-17, Exhibit A.
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TRO Hrg Tr., 30:16-17, Exhibit A.
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proper. The Court has discretion to determine the appropriate bond amount, which it did
here, after giving consideration to the arguments of both sides. Bayham v. Funk, 3 Ariz.
App. 220, 222, 413 P.2 279, 281 (Ct. App. 1966); Matter of Wilcox Revocable Trust, 192
Ariz. 337, 341, 965 P.2d 71, 75 (Ct. App. 1998). The City has not, and cannot, show that
the Court abused its discretion in any way.
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The City Fails to Show They Would Suffer $4 Million in Damages

by Paying for Services Rendered
[A] party seeking an increase in the amount of a bond bears the burden of
justifying the increase. In re President Casinos, Inc., 360 B.R. 262, 266 (8th Cir. B.A.P.
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2007). The City presents no evidence at all to justify increasing the bond by 1600%.
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Instead, the City alleges, without any evidentiary support, that there is a risk that
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Plaintiffs will not have the financial ability to repay the City should the City pay them the
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July 1st Payment directly.17 This argument fails for several reasons.
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First, Plaintiffs ability to repay the $3.75 million is irrelevant (and in contrary to
the limitations placed on the Citys recovery under A.R.S. 38-511(E)). Rather, the
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pertinent issue is what bond amount is needed to protect the City from harm in the event
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of a wrongful injunction.18 See Smith v. Coronado Foothills Estates Homeowners Assn
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Inc., 117 Ariz. 171, 172, 571 P.2d 668, 669 (1977) (noting a bond is required to indemnify
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the enjoined party for damages incurred as a result of an improperly granted restraining
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order obtained without an opportunity by the party to be heard). Here, there can be no
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harm because Plaintiffs are paying for services already rendered and received by the City.
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And there can be no wrongful injunction because the City had the opportunity to be heard
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at the TRO hearing and stipulated to the TRO.
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Second, the Citys argument is wholly speculative. Even if Plaintiffs assets were
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relevant (which they are not), the City has no evidence that Plaintiffs lack $3.75 million in
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assets. Accordingly, the argument fails as a matter of law. In re President Casinos, Inc.,
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360 B.R. at 266 (A court is not required to order a bond to protect a party from economic
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Motion, at 11:4-6; TRO Hrg Tr., 33:8-13.

Motion, at 10:10-20.
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damages that are speculative.). In In re President Casinos, Inc., the bankruptcy appellate
panel affirmed the courts denial of a request to increase a bond, finding that allegations
that defendant would lose money during pendency of injunction was insufficient to justify
a bond increase. The Court should reach the same result here.
Third, the cases cited by the City do not support its argument to increase the bond
amount because those cases involved changed circumstances that warranted an increase.
In Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Patinkin, the court extended the TRO
preventing defendant from soliciting plaintiffs customers until the arbitration hearing and
increased the bond amount to $50,000 because the plaintiff refused to agree to an
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expedited arbitration hearing, resulting in additional harm to the defendant during the
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pendency of the TRO. No. 91 C 2324, 1991 WL 83163, at *6 (N.D. Ill. May 9, 1991). In
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Aevoe Corp. v. AE Tech Co., Ltd., the court increased the preliminary injunction bond
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from $10,000 to $500,000 to cover profits the defendants would lose after decisions by the
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United States Patent and Trademark Office cast significant doubt on plaintiffs likelihood
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of success on the merits and the litigation extended longer than the court anticipated. No.
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2:12-cv-00053-GMN-NJK, 2014 WL 1089676, at *3-5 (D. Nev. Mar. 18, 2014). There
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are no changed circumstances here that warrant an increase in the bond amount.
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III.
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CONCLUSION
For the foregoing reasons, the Court should deny the Motion.
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DATED this 25th day of June, 2015.

SNELL & WILMER L.L.P.
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By s/ Patricia Lee Refo

James R. Condo
Patricia Lee Refo
Adam E. Lang
One Arizona Center
400 E. Van Buren
Phoenix, AZ 85004-2202
Attorneys for Plaintiffs
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ORIGINAL of the foregoing e-filed and a

COPY mailed and e-mailed
the 25th day of June, 2015 to:
Cynthia A. Ricketts
Sacks, Ricketts & Case LLP
2800 N. Central Avenue, Suite 1230
Phoenix AZ 85004
cricketts@srclaw.com
Attorney for Defendants
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COPY hand-delivered to:
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The Honorable Dawn Bergin

Maricopa County Superior Court
East Court Building
101 W. Jefferson
Room 713
Phoenix, AZ 85003
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/s/ _Jeannie Fisher
___________
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- 13 -
Exhibit A
IN
THE SUPER]OR COURT OF THE STATE OF ARIZONA

TN AND FOR THE COUNTY OF MARICOPA
ICEARIZONA MANAGER
CO.,
LLC,
No. Cv 20t5-0Q7216
Plaintiff'
v.
CITY OF
GLENDALE,
Defendant.
Phoenix, Arizona
June 12, 2015
2:
p.m.
BEFORE THE HONORABLE DAWN M. BERG]N
TRANSCR]PT OF PROCEED]NGS
Request for Temporary Restraining Order

Proceedj-ngs recorded by electronic sound recording; transcript
produced by AVTranz.
M. DEVI]TZ
Transcriptioni st
NANCY
CET* *D_7 L9
AVTranz
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INDEX
'June
L2
PLATNTIFF
20r5
I
I^]]TNESSES
DIRECT
CROSS REDIRECT
RECROSS
VD
None
DEFENDANT I S VTTNESSES
DTRECT CROSS RED]RECT RECROSS VD
None
MISCELLANEOUS
PAGE
Court t s Orders
36
llWranz
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APPEARANCES
,June
12
20L5
Judge: Dawn M. Bergin
For the Plaintiff:

,James Condo
Adam Lang
Nicolas
Vtlood
Vitnesses;
None
For the Defendant:

Cyntha Ricketts
Michael- BaileY
Ili-tnesses:
None
Al-so Appearing:
Anthony LeBlanc
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Phoenix, Arizona
June 12, 20]-5

(The Honorable Dawn M. Bergin Presiding
3
4
HEARING ON TEMPORARY RESTRAIN]NG ORDER:
AII TiSC.
THE BAILIFF:
THE COURT: Good
Okay. This is the time set for a hearing on
afternoon. Please be seated.

an
application for the temporary restraining order, reguest for

9
10
evidentiary on a preliminary injunction in cv20T5-007216.

Could I have appearances Please?
MR. CONDO: Your Honor, good afternoon.
11
James Condo
t2
and my partner, Adam Lang, on behalf of the Plaintiffs.
13
with me is Mr. Anthony LeBIanc who is the president and
I4
Plaintiffs.
And my other partner, Nichol-as
OkaY. Thank
And
CEO
of
Vood.
r_5
THE COURT:
1"6
MR. LANG: Good afternoon, Your Honor.
T1
THE COURT: Pl-ease
1B
MS. RICKETTS: Good afternoon, Your Honor. Cindy
You.
be seated.
19
Ricketts wth Sacks, Rickets and Case and on behalf of the City
20
of Glendal_e. And with me here is the city Attorney
2I
BaiIey.
Mike
Okay. Thank you. You can be seated.
22
THE COURT:
ZJ
Okay. So obviousJ-y I just got ths, I don't know, 45
24
minutes or so ago. And so I just have some preliminary
25
questions. First, I do have to give parties an opportunity to
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requests.
I think
object to any
talked to the lawYers for both sides.
is no objection,
camera
my
Am
judicial assistant
I correct that there
Mr. Condo?
MR.
CONDO:
No objecLj-on, Your Honor.
THE
COURT:
Ms. Ricketts.
MS. RICKETTS: No objection.
THE COURT:
OkaY. Thank You. OkaY.

The other issue that I just wanted to address is
whether all of the Defendants have had notice of this hearing.
10
I mean obviously Ms. Ricketts's here on behalf of the City of
11
Glendale. Is Mr. Bailey -- isn't he a
named Defendant
1,2
MR. BAILEY: Yes, Your Honor, I am.
13
THE COURT:
t4
15
16
as
wel-l-?
Okay. And so are you representing
yourself or is Ms. Ricketts representing
you?
MR. BAILEY: As we speak today, IÎe are representing
the City of Glendale.
T7
MS. RICKETTS: So, Your Honor --
1B
MR. BAILEY: Werre not representing any individual
t9
Defendants.
20
MS. RICKETTS: Right,. Ifm not here representing the
2T
individual Defendants, and f have not had any personal contact
22
with individual- Defendants, nor has Mr. Baley had an
23
opportunity to contact the individual- Defendants, although'
24
obviousl-y he, himself, is a/are of --
25
THE COURT: OkaY.
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MS. RICKETTS: -- of the indvidual-
THE COURT:
MS. RICKETTS: -- Defendants.
THE COURT: So
AII- right.
Mr. Bailey is here simply as
an
attorney for the CitY of GIendale, not in his individual
capacity
party that I have before me todaY in court; is that correct
as
a Defendant
And the City of Glendal-e is the only
MS
RICKETTS: Yes, Your Honor.
THE
COURT: All right.
Thank You.
Okay.
Let me start out by teJ-ling you what Itve reviewed.
10
the severance
11
I did review the verified complaint whch
1"2
agreement with Mr. Tindall,
13
servj-ces in a rent lease agreement between the City and the
L4
Pl-aintiffs.
15
not have an opportunity to read the entire agTeement, but I
I6
understand the legal issue here. And I don't think it's
I1
necessary for today's purposes for me to be completely familiar
1-B
with the entirety of that agreement.
1,9
have
and the professional management
Obviously, I think it's
over a 100 pages, I did

do
frve afso reviewed the application for temporary
20
restrainng order and the reguest for evidentiary hearing on
2T
preliminary injunction, the
memorandum
of points
and
23
authorities in support of the applJ-cation, and the request for

an evidentiary hearing, and the proposed TRO. So anything of
24
substance that I should be reviewing or should have reviewed?
22
25
MR. CONDO: I don't think so, Your Honor. If in the
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l-st you included the three decfarations

THE COURT: Yes.
MR. CONDO: *- the --
I had declaration of
THE COURT:
Greg
Tindall,
decfaration of Anthony LeBlanc, and declaration of ![i]-liam
Daily.
Then that. completes it,
Your Honor.
MR.
THE COURT:
AII right.
MR.
CONDO:
Thank you.
10
THE
COURT:
Thank you. And f donrt have anything in
CONDO:
11
writing from the CitY of G]endale. I just want to make sure I
1,2
don't have anYthing.

MS. RICKETTS: You do not, Your Honor. And we just
13
L4
reviewed this probably the same time you did it and have not
15
had an opportunity to read it fully.
That's what I figured.
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THE COURT:
T7
MS. RICKETTS: OkaY.
1-B
THE COURT:
Thank you'
Okay. So obviousfy the attorneys
have
L9
been in communication with each other about at feast to
some
20
extent.
21-
potential- comPromise, Mr.
so have you been abl-e to make any plogress on

Condo?
22
MR. CONDO: No, Your Honor.
THE COURT: OkaY.
24
MR. CONDO:
V'Ie
25
THE COURT:
All right.
have not.
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MR. BAILEY: Your Honor, if
THE COURT: Yes.
MR. BAILEY: The City would be wil-l-ing to stipulate
maY.
to the temporary resLraining order with a couple of exceptions.
THE COURT: OkaY.
MR. BAILEY: First and foremost, in terms of the
evidentiary hearing, we woul-d need approximately two months to
prepare for the evidentiary hearing. And second of all,
is a payment that is due approximately June 30th that is under
there
10
the terms of the agreement. And rather than make that
11
the City would l-ike to escrow that, Put that payment in escrow.
Mr.
payment,
T2
THE COURT:
13
MR. CONDO: Your Honor, I^/e appreciate the offer to
Condo?
The problem with
I4
stipulate to the temporary restraining order.
15
the extended schedule that has been proposed j-s that literally
1,6
every day in every moment, harm is continuing to accrue. As
1,7
tried to outline in our -- in our filings,
1B
free agency opens in the NHL. The cloud that is now over the
T9
Coyotes by virtue of what the City has done \ÎiIl- remain, even
ZU
with a TRO, that's the first
2I
doesn't provide any certainty or stability.
22
much want an expedited schedule
ZJ
evj-dentiary hearing.
THE COURT:
24
25
Now
that for
lifeline,
as early as JuIy
we
1-,
that's good. But it

And we would very
for discovery and the
-*
Vell, what do we -- what do we mean by
if you can outline what discovery you think would
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be necessary. And if we're going to -- f we're going to
something expedited,
'hre I
re going to have to
come up
do
wth a very
concrete schedul-e in terms of how many depositions can
be
taken, when they're taken by, you know what sort of written
discovery can be done. And t.hen also, you know, how long do
actually need for t.he evidentiary hearing.

This is not my case. This i-s Judge Bl-omo's case. I
to be in my office, and rm coverng for him
just
today. So we al-so
happened
have
scheduling issues there.
I don't
10
that I even have access to Judge Bl-omo's cal-endar to set
11
something. So with those caveats, if you could --
I2
MR. CONDO: Sure.
13
THE
L4
we
enlighten me about how you think
COURT:
know
we
can move this

Vel-1,
I think -*
15
MR.
CONDO:
1,6
THE
COURT:
forward.
1-7
MR.
CONDO:
there are several ways i^/e can move j-t

of people who have
1B
along. First of al-I, the
1,9
of who was actually involved in the negotiation drafting'
20
etcetera, should be reJ-atively
2I
who it
22
subject to
23
Mr. Tindal-I, but we don't know that.
24
That was never exposed at the City hearing on June 9th --
25
is.
number
sma.lf
Ve
knowledge
have never been t.o]d
And we don't know today who the City believes is

ARS
38-51-1.
V'le
have assumed that it wa
That IIas never discl-osed.
THE COURT: Uh-huh.
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10
MR. CONDO: -- at the special- voting meeting.
V{e
don'L know. le dontt know whether there is one person or
than one person. The statement that was made is that counsel
has concfuded that they b/ere employees. So that suggests more
than one, but at this moment, we do not know who those people
are or on what grounds they supposedly heavily influenced -- I
think that's the words that lÎere used at the council meeting --
the final negotiations for the agreement that was approved in
.TuIy of 201-3.
So the very first
10
more
thing we would need is we need the
and they can do it today because they've obviously
11
Plaintiffs,
t2
made
13
by counsel at council meeting in the executive session.
T4
coul-d tell- us today right here, right now who are the
1-5
individual-s that they believe entitle them to invoke 38-511.
t6
And obviously we'l-1 need to take their depositions if itrs
1,1
someone anyone other than Mr. Tinda]l.
the decision already on the basis of what they lÎere told
Second,
1B
IÎe I
They
re probably going to need to take the
1,9
depositions of one or two of the board members excuse me
20
council
21"
knowledge.
22
of the board members I
the acting city manager and who, in fact, handled the
24
negotj-ations. And our evidence
25
Tindal-l- was never in the negotiating room with Mr. Bowers or
members who were

Je may
then on the council about their
well have to depose Mr. DePiazza. And one

r^/as
tal-king about was Mr. Bowers,
makes
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it very cl-ear that
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h/ho's
Mr.
11
1
Mr. DePazza, the assistant acting cty -- excuse me -- the
acting city manager in 2013. And he certainly wasnrt in the

back room with either of them. He had been effectively
terminated. He was operating under a severance agreement that
required him to respond to the city, and if asked, provide
legal services under a separate contract.
Mr. Tindat wasnrt invol-ved in any way that heaviJ-y infl-uenced
or was significantly
going to have to f ind out who those people l^/ere. And the best
So we know that
invofved under the statute.
so
. DePiazza, and certainl-y
we I Te
10
sources are Mr. Bo/ers,
11
they tell_ us today are the individuals they bel-ieve heavily
L2
influenced the decision.
13
I4
Once
MI
whomever
thatts done, I dontt know what more discovery
needs to be done.
side.
15
THE COURT: From Your
1"6
MR. CONDO: From our side, yes .
today, you know. That will-
you know'
come
\Îe
re
'
later.
t7
not seeking
1B
don't want to be distracted.
1,9
need stabil_ity in the operations.
20
continue to move forward, attract free agents, sign free agent
2I
players, market ourselves, have a schedule approved by the
22
t.hat will- hotd for a fulI year. le canrt be at risk in
23
wy, shape or form. So we need as expedited consideration of
24
preliminary injunction as the Court could
25
damages
THE COURT: Vhat
We
want to get back on ice.

vrle
Ve
Ve
need to be abl-e to
NHL
any
a
accommodate.
about written discovery? Arenft you
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going to be ProPounding request for production?

MR. CONDO: Yeah. But those should be relatively
easy too.
shoul-d be abl-e to tell
There
isnrt a J-otr I wouldn't think.
Again they
us whatever documents theY think the
individuals who lÎere j-nvolved -- and this is really in their

6
camp. l{erre sort of at a disadvantage because we don't
They can tel-l- us .
what wetve seen. This is what we bel-ieve establ-ishes the
substantial- or significant
10
now
These are the documents hle rely on. This is
involvement that al-lows us to invoke
the statute.
of course
11
1,2
know.
discovery
on
we I re
probably going to have a little
the issue of waiver --
13
THE
COURT: Uh-huh.
I4
MR.
CONDO:
because they've waited 19 months since
avlare that Mr. Tindal-l was employed by the
15
becoming f irst
I6
Coyotes. They've known since September of 20I3t and now for
I1
the first
1B
a special voting meeting where they, n fact, voted to direct
1-9
the City attorney to take steps to effectuate the cancelfation
20
of the contract.
time on June 9th they raise this issue in the form of
We're probably afso going to need a l-ittle
21,
discovery'
22
but it shoul-dn't be much, and we al-ready know what
23
Mr. Tindal-I's going to say, on the severance agreement
24
that has a very clear conflict waiver provision.
25
clear.
It
i^/as
because
Itrs very
negotiated and signed by Mr. Bowers and by
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13
1
DePiazza, Mr. DePiazza, the same individuals who three months
l-ater signed the
Iook at paragraph 6 of the service agreement which is Exhibit
A, it makes it very clear that the City has waived confl-icts
arising from Mr. Tindall-'s involvement in transactj-onal- mattes
6,
that he handled for the City through the date of separaton.
so there isn't anything that hasnrt afready been waived or
which they are al-ready estopped from raisng by virtue of their
conduct.
management
services agreement in which, if
So those are the kinds of things that
10
h/e I
you
re going to
11
need to do, but most of that stuff is in the possession of the
1-2
Defendants, and t.hey're the ones who could literally,
13
the next 24 hours, provide everythlng that is needed because
1-4
their -- made the June 9th or June 10th. And there was a basis
15
for that, and IÎerre entitl-ed to that.

THE COURT:
1_6
Okay. There are
within
I don't know -- eight
L7
or so other Defendants who would need to be served. I donrt
1B
know
19
that into account, the possibil-ity that I may end up with eight
20
additional lawyers coming in.
2t
determination or decision will- be so obviousJ-y that could afso
22
very much impact how J-ong it will take to prepare for
23
preliminary injunction hearing.
24
25
if they woul-d be retaining other counsel so I have to take

f don't know what their
MR. CONDO: Your Honor,
you, but I think it would be
I would not disagree with
I think it woul-d be a little
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1
disingenuous for them to reall-y do that because we have sued
them clearly and solely in their individual- capacities and --
excuse me -- official-
Ve're not seeking damages. And frankly the TRO, even if you
tr
capacities' not as husband and wife.
granted it agalnst the City would extend as traditional-
extend to al-l- the agents, etcetera.
l-ittle
TROs
So I think it woul-d be
disingenuous for them to come in and say, we need eight
separate lawyers here when they're only being sued n their

9
official
that occurred at
capacities for an act that was
10
city council_ meeting, and which if the injunction issues
11
against the city, would issue against all- other agents.
r_3
Okay. Thank you. Ms. Ricketts?
THE COURT:
1-2
Mr. Bailey?
MS. R]CKETTS:
14
YOUT
Honor,
we
obviously have not
had
15
an opport.unit.Y to read all the papers, but f mean what
t6
Mr. Condo just said' therers at Ieast five or six depositions
I7
that he wants to take.
1B
discovery that needs to be conducted. It is not as sj-mpIe as
I9
producing a few pages of paper as Mr. Condo suggested. He also
20
neglects that they have piled at least three or four
21,
declarations.
22
them, but there are many accusations about the rreparable that
this
24
taken by the CitY of Gl-endale.
25
There
is obvj-ously
some
written
I haven't had an opportunity to review aII of
the Pl-aintiff is suffering as a result of the action

I also need to note this is all premature because the
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15
1
city hasn't actually taken steps to cancel- the contracts.

But they could at any tj-me, right --
THE COURT:
MS. RICKETTS: TheY coul-d --
THE COURT:
MS. RICKETTS: -- at anY time.
THE
-- because the
COURT:
citY council gave them authorltY
and,
in fact, I think directed them to the city manager and the citY
attorney to execute a termination.
Am
I right about that?
MS. RICKETTS: Thatrs correct.
10
THE COURT: OkaY.
11
MS. RICKETTS: But I just mention that whil-e Inlerre
12
here today
1-3
THE COURT: OkaY.
14
MS
. RICKETTS: But obviousl-y
\ê
would discovery as to
15
the irreparable harm. le woufd brant dscovery into the
t6
negotiation of the conlract and Mr. Tindal-'s invofvement.
L1
Depositions that we obviously
1_B
Mr. Tindal-l-'s deposition, Mr. Dailey's deposition
19
representative that they have filed,
20
Mr. LeBfanc's partner thatrs menLioned, just to
2t
That's ten depositions that need to occur at a
22
wouJ-d
all need to take would

Mr. LeBlanc,
who I s
an
be
NHL
and
name
a few.
minimum.
so having a expedited discovery schedule needs to
24
al_Iot for the fact that that needs to happen. It's not going
t.o happen in a week. ft's not going to happen in ten days, and
25
that was why we thought it made it very reasonable, st,ipulated
23
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1
request for two months. That's, I think, pushng it to get it
al-I
done.
With resPecL to the individual Defendants that are
3
4
not here and rePresented here today, the other consideration is
that the City Council- is on -- out of session the entire
of July.
depositions so I mention that.
address the substance of what Mr. Condo said.
addressing your question about the expedited schedule.
So
month
that is going to complicate the scheduling of

Mr . BaiJ-ey
Atl- right.
will- mention -- to
I was just
Thank You.
10
THE COURT:
11
MR.BAILEY:Andjusttofollowup,YourHonorrthe
T2
council when we said they're in recess, most of them
13
schedufed vacations.
T4
THE COURT: Uh-huh.
15
MR. BA]LEY: So t'hey wil]- be unavailable.
have
You know
1-1
for the most part, the City bel-ieves that this is premature.
We have not had the opportunity to tender them anything with
1B
regards to the cancelation of the contract .
I9
information they seek would be received at that point in time.
T6
Some
of the
2t
That's why I think at this point in time, the stipulation with

regards to the TRO in place, the allowance for the evidentiarY
22
hearing, we can provide that evidence so
23
have a thorough discussj-on through the Court.
20
24
25
THE COURT:
maybe yourre
we
can come back and
Okay. I have to tell you, Mr.
Condo,
you'd be able to get your part of the discovery
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quickly, but I agree with Ms. Ricketts.
fairly
mean
done
she's getting, you know, these material-s for the first
Shefs
dj-scovery she thinks shers going to need. And it sounds
reasonabfe to me. And thenr You know, T have yet to see goang
from a
in three weeks or something when ten depostions need to
get done.
time.
sort of telling me, outlJ-ning for me what kind of
TRO
hearing to a preliminary injunction in --
you know,
be
And there are, You know -- you've alleged a number of
10
items of irreparabl-e harm. And theyrre entitl-ed to discovery
11
on those.
1,2
60 days.
So I'm not sure in how we get it done in l-ess than
MR. CONDO: Well, f think we can, Judge. And I
13
I appreciate what you're tetling me. And it is
T4
appreciate
15
not my desire to penalize anybody or deny them an opportunity
1,6
to do the discovery that. they need. But fetrs deconstruct
T7
litt1e
1B
bit about what werre talking about.

Vrlef
re talking about an action they took f ol-Iowing an
19
investigation done by their city attorney and council-
20
others that
2T
need and that they need to establish significant
22
withn their knowledge and control right at this moment.
23
know who those people
24
Mr. LeBlanc is available . Mr. Tindall- is availabl-e.
25
certainly expedite discovery.
lâs presented
and
to the board. Everything that
we
invol-vement is
They
are. Al-l- of that's avail-able.

If we need discovery in ten
llVTranz
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lVe can
' (800) 257-0885
days
LB
1
or
tr^ro weeks
or three hreeks, thatts fine.
But we canrt -- we canrt push all of this out
60
days. The uncertainty that hangs over the team is too
profound. This is
fuII on haboob because this team l-iterall-y is missing
opportunities.
competitve1y disadvantaged if it canrt sign the signs of
players it needs or re-sgn.
This is the kind of -- this is exactly the kind of situation
not a cloud anymore. I mean, it's
it's
It's losing opportunities.
lVe have
Itrs going to
be
al-l of the famil-ies.
10
where an expedited hearing and a temporary restralning order is
11
appropriate.
Second, the other part. of their proposal was this
L2
13
idea that they not pay and escrow the money. V{eIl-' that too
l4
sort of rewards the wrongdoer, okay? They get to keep the
15
money
1-6
should be required to pay that money. They have anticipated
1,7
it.
they are required to pay us under the contract.
They bargained for it.
!e
They
have provided services for it.
19
This contract has been in effect since JuIy of 201"3. This

It shoul-d go to
notion that it should be escrowed is silly.
20
the team. The team is
t_B
21
22
THE COURT: Vel-l,
if I enter a TRO.
Ve
You're going to have to post a
all agree on that, rght?
23
MR. CONDO: We al-l agree on that.
24
THE
25
COURT
bond
: Okay. AII right .
Ve1l-,
let ' s get to
that payment ssue in a few moments, but let me just kind of
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go
19
1
over v,/hat you just tol-d me about, Yo know, irreparable
MR. CONDO: Sure.
THE COURT: Harm
to t.he continued viability
harm.
and
of the Coyotest hockey team; harm to the hockey
stability
teamrs competitive standing within the NHL; harm to the
Coyotes' ability
questioning whether these
aren't. val-id points for irreparable harm. The reason Irm
reading these is because Ms. Rlcketts needs to do discovery
to schedul-e and promote
home
games. Irm not
I'm not suggesting that they
And I fm not convinced that
on
given the
1_0
these things.
11
extent of the items of irreparabfe harm that yourve alleged' I
1,2
think that there's a fair amount of discovery that
13
entitled to do on al-l- of these points of irreparable
mean
she I s
harm.
T4
MR. CONDO: And, Your Honor, I really don't disagree.
15
THE COURT: OkaY.
1,6
MR. CONDO: You and I are not disagreeing --
1-1
THE COURT:
1B
MR. CONDO: -- about any of that.
AtI right.
What lrm
1,9
suggesting onty is that a 60-day period is far too long.
20
ten days is too short, but we cannot live with an extended
21"
discovery period with all- of the issues that are hanging over
22
the Coyotes' heads. Al-l- of the
23
acts for an arena, trying to assure artists that plays
24
performances are going to go on, trying to market tickets --
25
THE COURT:
Maybe
you know, trying to book
f understand your point but
AVTranz
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and
20
1
MR. CONDO: So --
THE
COURT:
l-et's get down to the practicalities
okay, because ten depositions, of course
of it,
that in ten days, right?
rre
can't
do
Can't do ten depositions in ten days.
MR. CONDO: Itell, but --
THE COURT: !e've
got the issue of , you know' these

I mean come
other Defendants who maY be on vacation.
There's no waY I can get all that discovery -- or they, the
City, can get al- the discovery, that theYrre entitl-ed to,
10
j-n ten days.
on
done
And I think 30 days is Pushing it.
-- agarn
1-1
MR.
CONDO: Well' Your Honor,
1-2
THE
COURT: OkaY.
13
MR.
CONDO:
1,4
that needs to be done.
t_5
appropriate order in Your Honor's discretion, and we will- abide
1,6
by it.
l7
shorter side rather than the longer side simply because of all
1B
the issues that werre facing.
And
obviousfy Your Honor wil-I enter
Okay.
Here
's what I 'd l-ike to
do '
20
First, if you need to -- if you want to set this on Judge
21,
Blomors cal-endar, I'ITl not going to be able to do that today.
22
If you want me to keep the case, I can give you
23
I'd be available.
So, you know, it's
some
dates that
up to you.
MR. CONDO: Ve'd be pleased i-f Your Honor kept the
24
25
an
But we would like the order clearly to be on the
THE COURT:
L9
-- I don't disagree with the discovery
case.
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2L
1
MS.
THE COURT:
check
BJ-omo I s,
many days do we need,
case it's
l-n
me
more bl-ocked than Judge
and then we'l-1 go from there.
Mr.
to that as well.
frm saying that but let
AlI right.
calendar just
my
We'11- consent
RTCKETTS:
I need one moment.
How
Condo?
MR. CONDO: For the evidentiary hearing itself?
THE COURT: Yes.
MR. CONDO: I woul-d think two days probably.
THE COURT:
Ms. Ricketts?
10
MS. RICKETTS: I have no reason to disagree with that
11
at this point, but I ' II reserve the right to reguest additional-
1_2
time as ble get into this further.

THE COURT:
13
I4
I'm just going to tal-k to my bailiff
for
a minute.
15
Pause
THE COURT: Vhat
1"6
I could do, and this may help
with discovery -- so if I go to the begj-nning of August
t7
Iittle
1B
or the end of JuIy, f have trial
19
Monday through Thursday,
20
the 31st and then the second day on the 7th.
2T
Fridays. And therers a week between those which may he1p. I
22
mean, you know, I have the week of July 20 open as well-, but I
z-7
just
24
unfairly pushed and compressed in terms of tme to do the
25
discovery that they need. So that's what I would offer.
Monday through
Friday -- or
but I could do like the first. day
So those are two
frm not -- I really think that the City might
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on
be
22
1
rôul-d of
fer the 3l-st of July and the 7th of August.

Mr. Condo? I know itts not your preference. Ifve
heard that l-oud and cfear but

MR. CONDO: I know, Your Honor. And if
No, f underst.and.
THE COURT:
MR. CONDO: -- bearing, I apologize.
THE COURT:
But
No. Yourre representing your client.
undersLand.
MR. CONDO: You know where
10
11
seemed
over --
I -- where I stand, and we
wil-l- take those days if those are the f irst avail-abl-e dates.
Ms. Ricketts?
1,2
THE COURT:
1_3
MS. RICKETTS: Your Honor, I think July 31st is
15
pushing it just because of the city councif being in place. I

think we coufd sLart on August 'lLin, and then the next available
L6
date after that.
1,7
rdere looking at your calendar, he thinks we might need an extra
1B
three days for the hearing.
1,4
And, Mr. BaiJ-ey, just, whiJ-e /e 'hlere -- you
1_9
MR. BAILEY: One to two.
20
MS. RICKETTS: One to two additional days.
21,
THE
COURT
: lVell, the probl-em is that after the 7t}l,,
22
I'm double-booked for trial-s for the next week actual-ly through
Friday. And so then the next day I
24
August 2I.
Am
have avail-abl-e woufd be
I right about that?
25
llVTranz
23
(Off the record)
RICKETTS
: August 2l-st is acceptabl-e to
MS
THE COURT:
MR. CONDO: Oh, Irm sorrY.
THE COURT:
us
f rm sure it is.
No. That's
okaY.
They ^rere asking for,
I guess, July -- st.arting on August 7th and then going to
August 2t.
have the l-ast week of August availabl-e.
start until August 7th.
And I guess yourre asking for another day, and I do

So they donrt want to
The problem is that that's
you
10
know, gong from the 7th to the 2tsL, you know, thatrs too long
11
of a break so I'm going to
12
let
13
evidentiary hearing for the 3l-st and the 7th' are you stilt
t4
wiJ-Iing to agree to the TRO? And then we'l-l- talk in a minute
15
about this payment?
me
1,6
I'm going to go ahead -- well,
Iet me ask the City first.
Pause
If I were to set the
MS. RICKETTS: The City is wil-ling to keep the
T1
offered the Plaintiff
1B
stipulation that Mr. Bailey initialty
1"9
Your Honor when we started this hearinq.
20
doing JuIy 31st and then August 7th is, we really do -- as
2t
tal-ked about it
22
additional day --
nor^r
But the problem with
-- think there needs to be at l-east
THE COURT: Uh-huh.
24
MS. RICKETTS: -- and if there's going to be that

much
of a gap between dates
any\ây
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one
23
25
and
starting on the 7th and then
24
1
continuing onto the 21,sL, w'l-1 have those hearing dates in
closer proximity
calendar being
more
THE COURT:
and
second. My bailiff
(
Pause
availabl-e for additional days.

VeJ-l,
I could probablY
is the one with all- the
give me one
anSIÎef S.
THE
to us that makes more sense with your
COURT:
oh ,
okay. I can give you August 10th
here's what I don't hrant to run into because this
wel-l.
happens a lot with preliminary injunction hearings.
Now
as
I say to
10
the lawyers, can you work out a schedufe? And they say yes.
11
And then the next thing that happens is, two days before the
1,2
hearing I get a motion to excl-ude the expert because they just
13
told me about him yesterdaY, right?

So what. do we need to do to make sure that we don't
I4
15
run into any problem like that? Do the parties want to get
I6
toqether and come up with a discovery schedule because,
1,7
know, you need to set out at the outset.
You
Herets who we want to
I9
dispose, you know. Here's how many discovery requests or

interrogatories, etcetera, and come up with scheduling for
20
those. And then the parties are going to be l-imited to
2I
whatever you agreed t.o. Mr.
1B
Condo?
MR. CONDO: I agree with that, Your Honor. And I
22
ZJ
would take it one step further, and I ask the Court's
24
indulgence in scheduling a RuIe
25
bringing
us
1-6
conference early with us and
all in and making sure that al-l of those issues are
AVTranz
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25
1
addressed. So within a week or ten days, we have identified
everythlng that needs to be done and when itrs going to
done.
MS. RICKETTS: No objections to that.
That
be
sounds
vey reasonabfe. And I think that I'm quite confident that
Mr. Condo and I can work together to
discovery schedule.
I
9
come
up with a reasonable
THE COURT: OkaY.

(
Pause
Okay. Let's do 10:30 on June 25th for
THE COURT:
10
11
schedul-ing conference, and that'11 be in person.
1,2
MS. RICKETTS: Your Honor --
13
THE COURT: Yes.
t4
MS. RICKETTS: -- I actually am scheduled to be out
15
of town that day --
1"6
THE COURT: OkaY.
t1
MS. RTCKETTS:
a hearj-ng in another matter.
1B
attend telephonicallY, or if you can push to the following
1,9
Monday on
the
can
29Lh.
29t,h. 10:30 on the 29lh?
20
THE COURT:
21"
MS. RICKETTS: Yes, Your Honor.
22
THE COURT:
23
MR. CONDO: I think that should be good, Your Honor.
24
THE COURT: Okay.
25
MR. CONDO: Thank You.
Mr.
Condo?
AWranz
26
THE COURT:
Okay.
AlI right.
Now
fet's talk about
the bond and the payment. I guess, Ms. Ricketts
Mr. Bailey, you hlere the one who addressed this in terms of the
payment. You're going to have a bond posted, right?
have some security in the event that you prevai]- and they
don't, so f'm n9t sure why we would need to have the payment go
into escror. Is that something that is a deal breaker for
or --
Pause
MR. BAILEY: Thank You, Your Honor. The City would
1-2
be comfortable wth the Pl-antiffs posting a $15 millon bond.
Mr.
t4
THE
COURT:
Al-1 right
15
MR.
CONDO:
You know, Your Honor, I think therers
1,6
Condo?
virtuall-y no reason for us to agree to that.
L1
THE
COURT:
All- right.
r_B
MR.
CONDO:
And we coufdnrt
19
THE
COURT:
Then let
20
MR.
CONDO:
agree to that.
21,
THE
COURT:
talk to Mr. BaileY about it.
22
out here.
How
me
HeIp
me
are You --
23
MR. BAILEY: Your Honor
24
THE
25
you
THE COURT: Sure.
r_0
13
So yourll
MR. BAILEY: If I may?
11
or
COURT:
coming up with $50 mill-ion? Tel-l
what the
AVTranz
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me
27
1
MR. BAILEY: Fifteen --
THE
MR. BAILEY: $15 mil-lion.
THE COURT:
MR. BAILEY: $15 million
COURT:
elements
Oh, I t.hought you said 50-.
is the value of -- is
The exposure that
annual value of one year in the contract.
the city can have under the contract is $15 million on
annual-i-zed basis.
10
11
1"2
13
THE
an
an
COURT: Okay. And when you -- when you say
that, you mean that you end up paying them $15 mitlion for -MR. BAILEY: There is the potential that the City
could be paying $15 million to the team, correct.

THE COURT:
But is there a possibility
that you could
T4
be paying g15 million to the team and not receiving any benefit
15
from that.? I mean, in other wordsr Yo pay them because
1,6
they're performing games, right?
17
using the wrong sports' terminology, but pardon me. I haven't
1B
been to a Coyotes' game. But in any event, theyrre futfilling
1_9
their part. of the contract, right?
zv
consideration.
And, Irm sorry, I'm probably
So you're getting
So what I kind of want to look at is what are
22
the -- what's the potential loss to the City if you all

ultimately prevaiJ-? I mean are there costs that yourre going
23
to invest that you wontt recoverr that arenrt required by the
24
contract? That's kind of what f'm looking at here.
21,
25
MR. BAILEY: The exposure that the City faces under
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' (800) 257-0885
2B
the contract on an annual-ized basj-s s $L5 million.
purpose for that, it's
arena. To the extent that there is Ievenue thatfs derived from
4
tr
paid to the arena manager to
The
manage the
From -- probably from

t.hat, that comes off the $15 million.
the past two years, I think *- it's the exposure has been
So to the extent $15 million,
approximately B- to $9 mIlion.
Your Honor believes is too high, B- to 99 million is the loss
that the City has actually had to pay out and experience under
this agreement.
Okay. Thank you. Mr.
Condo?
10
THE COURT:
11
MR. CONDO: Your Honor, I think that confuses two
L2
entirely different issues. Number 1, the fact that the City
13
may
I4
and don't like is not a consequence of anything my client has
15
done. It
1"6
will continue to book. They wil-l- continue to earn revenue.
t1
They pay us a management fee.
be losing money because of the deal that they negotiated

there are no losses to the
Ve
to the City.
Vrle
pay them in the neighborhood
1-9
of $9 mIl_ion in terms of -- on concessions and parking and

tickets and everything. So therers just literal-ly no costs
20
that they are going to incur that were not conLractually
21
bargained for.
22
going to happen at all in --
1B
There are no damages. There's nothing thatts
23
THE COURT: Give
24
MR. CONDO: -- in this resPect.
25
THE
COURT:
me
a counteroffer because I'm going to
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29
1
set a bond.
MR. CONDO:
VeIl-
THE COURT: Give me

4
your number because I'm setting
one, so.
MR.
CONDO:
know. I know. I know, Your Honor.
THE
COURT:
If you're pushing for zerot thatfs not
going to happen.
MR.
CONDO:
Wel-lr o,
no
. But j-n this instance,
Honor, the Coyotes are fighting to stay in the arena.
Your
Ie want
10
to make this work. And we can't be handicapped with
11
substantial- bond. And we shouldn't be because ble're
t2
reputable organizaton.
13
community. Itts a unique assetr
14
bond or a $25,000 bond is ProbablY as good as it gets, because
15
\e I
1,6
isn't an impecunious Defendant.
T7
1B
lVe've invested a lot in the
re j ust talking attorneys '
so
f ees
THE COURT: Vell_r vou
I woul-d think a $15,000

And this isn't
just totd
me what
-- and this
a substantial-
organization this is.
I9
MR. CONDO: Right.
20
THE COURT: And
so, you know -- and then you said
you
21.
shouldn't be hampered by a substantial bond, buL if it's
22
substantial company, right, then, you know, I dontt know enough
23
about the, you know, net worth of this company or what funds it
24
has avalabl-e to post a bond. But certainl-y it can do more
25
than $15,000. I hear what yourre saying. You think $15'000 is
llVTranz
30
that's the actual potental foss if
the right
the City were to prevail. Let
number because
me
hear from Mr. Bailey
now.
of this -- and I think

this is the City's position is that in the event that the City
did, in fact, prevail, we would not have to make those
payments. And so in terms of what we'ff be doing as a result
of the
our budget.
extent
3
4
MR. BAILEY: The unique aspect
TRO,
we
will- be making
we woufd want
THE COURT:
11
MR. BAILEY
outlays.
be
impacting
to the
So
to Protect that.
OkaY. But
tre
'
re wil-Iing to
come
down. I
understand
13
THE COURT: OkaY.
L4
MR.
15
that wil-l
Ve're actually making cash
l-0
t2
payments
$15,000, I think is cIearIY
BAILEY: -- that.
unaccepLabl-e.
THE COURT:
1,6
Thank you. I'm going
OkaY. AII right.
L7
to require a 250t 000 bond. And' Mr. Condo, J-f you could do me
1B
a favor and send me -- send to
1,9
TRO
mY
judicial
assistant a revised
--
20
MR. CONDO: Yes.
21,
THE
COURT:
22
MR.
CONDO:
Okay.
23
THE
COURT:
And I think that
24
She can add to it.
25
dates
with a bond amount in there.
was
the only
change.
She'l1 add to that the evdentiary hearing
AVTranz
31
1-
MR. CONDO: All- right.
THE COURT: And
the scheduling conference date.
just email that out to her, then itfl-I
if
And I can -- I can issue the
you can
me.
TRO.
MR. CONDO: I thnk we can do that even yet this
5
6
get to
So
afternoon --
THE COURT: OkaY.
MR. CONDO: -- Your Honor.
THE COURT: Ve1l,
I do have another hearing, and I
1_0
see the attorneys in the courtroom so I'1I try to do it ths
11
afternoon.
T2
MR. CONDO: Is Lonnie back there?
13
UN]DENTIFIED SPEAKER: YES.
1,4
MR. BAILEY: Your Honor,
15
MR. CONDO: Oh, there he is.
1-6
THE COURT: There
1,7
MR. LANG: Your Honor, it would be helpful to send in
1B
Vord
we
he is.
version?
Yes. V{ord version, Yesr absolutely.
19
THE COURT:
20
MR. LANG: OkaY.
21,
THE COURT:
22
MR. BAILEY: Your Honor, at the outset, the City
Yes, Mr. BaIeY.
23
inquired, with regards to stipping to the TRO, there is
24
payment that's coming due, and the opportunity to put that into
25
eSCf
O',Î .
AWranz
www,avtranz,com
' (800) 257-0885
32
Okay. But I thought -- when I asked you
THE COURT:
t_
about that, I thought you said you'd be comfortabl-e because
you'd have a
bond?
MR. BAILEY: Right.
And
we
spoke about the bond at
$250,000. I t.hink we probably need to have a discussion about

whether or not the city's going to outlay then upwards to $3
mill-ion when, in fact, Inlerre stipulating to this
THE COURT: So
10
the PaYment is how much?
MR. BAILEY: ft's
TRO.
approximat,ely $3 million.
I donrt
have the exact figure before me. My apologies.
No. That's okay. And tel-l-
THE COURT:
11
1,2
works. It's
1_3
like
me how
that
for how many months comj-ng up? Is it
$3 million
t4
MR.
BAILEY: Itrs a quarter --
15
THE
COURT:
16
MR. BAILEY: ft's
\7
THE COURT:
1B
MR. BAILEY: In advance of --
19
THE COURT:
In
a quarter?
a quarterly payment, correct.
advance?
Of the games. In other words, the $

their
20
mitlion that yourre payingr saY JuIy 1, that's
21,
performance is for JuIy 1 through October -- am f making sense?
22
T'm tryj-ng to figure out

fN ATTEATS
23
MR. LANG:
24
MR. CONDO: ftrs
25
MR.
not for --
BAILEY: Maybe Mr. LeBfanc coufd answer the
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33
1
question.
THE COURT: Yes.
MR. BAILEY: Wel-l-, t's
manage
the arena.
the
management
THE COURT:
But what
I guess what I'm saying is,
what time period does that --
1_0
MR.
BAILEY: Itrs
11
THE
COURT:
t2
MR. BAILEY: It's
L3
cover?
paid in arrears, so itrs for the
preceding three months.
L4
THE COURT: The Preceding?
15
MR. BAILEY: Correct.
1"6
MR. CONDO: Correct.
T7
THE COURT: Wel-l,
1B
So
BAILEY: Correct.
MR.
the $3 million,
Yeah, Irm sorry.
of the arena.
Okay. All right.
THE COURT:
not for games. ftrs to
then that means that theyrve
already performed --
I9
MR. CONDO: Correct.
20
MR. BAILEY: Yes.
21,
THE
22
MR. CONDO: Yes. At the end of the period, they now
COURT:
for that PaYment' right?
23
terminate the contract, and they don't want to pay what theyrre
24
obJ-igated to pay.
25
THE COURT:
mean
llVTranz
34
l-
MR. BAILEY: To the
THE COURT:
-- how --
IÎhy shoul-d
they not get
payment
for services they've already performed under a contract that
the city
acknowl_edges was
in place and valj-d at the time?
MR. BAILEY: Vhat \Îerre talking about here is in the
context of public interest and pubJ-ic funding. And when you

speak to a contract that can be canceled with a purpose of
protecting the public interests, while there may be in fact
windfal-I that could occur t.o the City, court cases have gone to
10
just that conclusion, is that by no means would there be
11
penalty because the agreement it.sel-f blas a bad agreement.
1-2
in this case to the extent we succeed and are successful on the
13
merits, we woul-dn't have to pay that.
T4
THE COURT: You
And
wouldn't have to pay the $3 million
15
for services they've al-ready rendered that youf re not al-Ieging
1"6
constitute a breach of contract, or you're not alleging that
l1
they didn't perform according to the agreement- I don't
1B
understand how you could -- I don't understand how you could
L9
recover in this lawsuit $3 million for services that
20
received. In other words, it's
21
you
consideration, right?
MR. BAILEY: You' re correct.
There' s consideration.
22
And I don't have the cite before me. Again we'Ie rushing here.
23
As I recall off the top of my head, there is a case that we can
24
provide to the court that speaks to the issue directly,
25
that in the event that. the City woul-d experience a windfal-l-
AVTranz
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' (800) 257-0885
and
35
1
under a matter where the contract was canceled for the public
interest,
act or because of their enterng into the contracts is a bad
act or they -- that Lhere is no harm to
though there may be a windfall to the
is that
them.
PaYment due?
THE COURT: When
MR.
MS. RICKETTS: Your Honor' may
THE COURT: Yes.
MS. R]CKETTS:
BAILEY: June 30th.
address that issue when we come before
this afternoon, that
11
you
12
to address that specific issue since itfs
13
30rh?
1-4
1_5
29Lh
we
\ê
suggest in that since this came uP
10
on the
City that a bad
so that we can bring
THE COURT: Vel-lr You
you whatever
Iegal cites
not due until the
can do that, but Irm not going
to hold off on the TRO, right?
t6
MS. RICKETTS: No. Understood -*
L7
THE COURT: OkaY.
1B
MS. RICKETTS: -- with respect to the cl-arificaton
1,9
whether the TRO requires the City of Gl-endal-e to make a payment
20
on June 30th.
2L
THE COURT:
Okay. So herers the way that f would
do
22
this then. The TRO is not going to have any reference to the
23
payment. vrletre just moving along wth the contract, and the
24
city needs to plan on making that payment on time.
25
want to fil-e something with me, and the way that you shoutd
AVTranz
www.avtranz.com ' (800) 257-0885
Now if
you
do
36
1
this -- because I donrt want to wait until the 29th, you
and then have everybody scrambling and arguing, is that you
need Lo fil-e a motion to amend the TRO to include this term
with
some
authority.
Does
that make sense?
MS. RICKETTS: Yes, Your Honor.
6,
THE COURT: And
mean
Okay.
I'd ask you to do that by the 17th'
obviously we have a condensed --
MS. RICKETTS: Yes, Your Honor. Thatfs
THE
10
know,
COURT:
wiII that work for
schedufe for everything.
Is that --
You?
11
MS. RICKETTS: That's acceptable' Your Honor.
1,2
THE COURT: OkaY.
13
MR. CONDO: Just so frm clear, Your Honor. The
TRO
and as f understand Your Honor, not
14
which wil-I be entered wiIl,
15
address whether or not the payment has to be made. Your Honor
t6
is contemplating by virtue of the
1-1
in effect.
TRO
that the contract remains
They can do nothing to breach the contract and that
19
a payment will be due unfess there is a further order from this

court rel-ieving them of a payment for services that have
20
aJ_ready been
1B
provided, earned, and they're paid in arrears?
2T
THE COURT: ExactlY.
22
MR. CONDO: Thank You, Your Honor.
23
THE COURT:
24
25
Okay. Is there anything else that
we
need to do todaY?
MR. CONDO: You know the onJ-y other thng that
llVTranz
www,avtranz.com
' (800) 257-0885
37
1
hould ask is, I would l-ike to know, who are the people that
supposedly caused the City to invoke the statute? A decision
was made two days
told who they are.
an we
ago.
Ve
ought to be at least entitled to
If we're going to do discovery, tell us.
just ask -THE COURT:
I'1I ask the lawyers whether theyrre
to give that information.
prepared or willing
you're going to have a deadline for doing sor but
Mr. Bailey?
mean obviouslY
11
concern, that
t2
employee
13
Frisoni.
we I re
currently concerned witht are ex-city
Craig Tindall and ex-assistant city manager 'Ju1ie
T4
15
THE COURT:
Mr.
Okay. Anything else? Ms. Ricketts'
Baey, anything?
1,7
MR. BAILEY: No.
1B
MS. RICKETTS: No.
T9
MR. BAILEY: No, Your Honor. Thank you'
20
THE COURT:
21,
MR. CONDO: Your Honor, if --
22
THE COURT: YCS.
23
MR. CONDO: -- we get this to you
24
25
and
MR. BAILEY: Yes, Your Honor. The parties of
10
1,6
be
AII right.
I know that
there are others in the courtroom, but we would like the TRO
issued today. If we get this to you in the next 30 minutes or
AVTranz
www,avtranz.com
' (800) 257-0885
3B
1
sor do you think you'l-l- have to order it before the close of
busines
s?
Mr. Williams how long hers going to
THE COURT: Ask
taIk.
MR. CONDO: V[e]-l-, he was my partner for a long time.
THE COURT:
MR. CONDO: I know the answer to that.
THE COURT:
I 'l-1 def initely
I know that.
Right.
I know. Yeah. I wil-l definitely be
done
have enough time to look at it before f
10
leave for the day. But are you -- what do you want me to
11
Have -- do you want my judicial- assistant to l-et you know that
t2
it's
do?
been issued? What
13
MR. CONDO: Yes, ys.
L4
THE COURT: So sherll-
Itrs
just send you an email that
been issued, but I don't know if you're going to want to
15
it's
T6
come and
pick it up.
will-
I1
MR.
CONDO:
V{e
J_
THE
COURT:
Vhat
1,9
MR.
CONDO:
We
20
be abl-e to distribute
21,
distribute
22
within the City --
wil-I want to
come and
pick it up
it to the City so that the City
t to all of the
and
can
named Defendants and anybody else
23
THE
COURT:
Okay.
.A
LA
MR.
CONDO:
-- who needs to get notice of it..
25
THE
COURT:
Vel-l, then you need to have a runner
AVTranz
39
1
ready to come over here, because it might be cfose to 5:00.

I
l-l- have someone sitting outside,
MR. CONDO:
Ve
THE COURT:
AIl right.
MR. CONDO: Now we're done
THE COURT:
THE COURT: Thank you.
THE
Is that all?
All right.
BAILIFF: Al-1 rise.
(Proceedings concl-uded at 3:06 p'm.
10
11
T2
13
L4
15
t6
t7
1B
L9
20
2t
22
23
24
25
llWranz
40
CERTIFTCATE
AVTranz has
a current transcription contract with the Maricopa
County Superior Court under contract # 13010-RFP, as such,

AVTranz
is an "authorized Transcriber"
It Tami S. Mayes, CET**D-547t a court approved proofreader,
that the foregoing is a correct transcript from
hereby certify
the official
do
electronic sound recording of the proceedings in
the above-entitled matter, to the best of my professional

skill-s and abilities.
TRANSCRIPTIONIST(S): Nancy Dewitz, AAERT Cert. No. 719
/s/
June
Tami S. Mayes' CET**D-547

Proofreader
AVTranz
t9,
201-5
Exhibit B
Craiq Tindall
From:
Sent:
Craig Tindall
ThursdaY, APril 30, 2015 5:00 PM
Subject
2018 International Ice Hockey Federation Work Junior Championship
Michael: we are planning to submit a bid to USA Hockey for the 2018 llHF World Junior Championship. This
was 2011
international tournament will be played December 26,2017 through January 5, 20L8. The last WJC in the UsA
even
drew
Toronto
and
in
Montreal
in Buffalo and drew more than 330k fans for 31 games. Last year's tournament
garnering
more, 370k paid attendance. We are currently formulating a plan for the preparation of the bid and will be
is a short
that
community and business support for the proposal, which will be submitted by June 30, 2015. obviously
bids
timeframe, but Julie prisoni wll be assisting us in the preparation of the bid package and her experience with sirnilar
positive
mpact
will be helpful. The proposal will have the premium games played at the Arena and provide a significant
to the city and surrounding businesses. Because of the numberof games played, it is required thatwe secure another
smallerfacility for the tournament as well, we will be working regionally to partner on that venue for the bid.
as the
Obviously, we hope that the City will be supportive of our bid and will be contacting the appropriate City officials
questions'
you
have any
proposal comes together. Let me know if
Craig
AREONA
[,0Y0Tt$
CRAIG D. TINDALL
GENERAL COUNSEL AND CORPORATE SECRETARY
ARIZONA COYOTES HOCKEY CLUB
oFFlcE (623) 772-3274
CEtL
206-5568
or tllof.no}'..r| lfil
litonril
intnt lnr.ftrl{t ttcifli,il|s.'il
$u.iln
ii)'Eryr.Jlll
fd,
6 fi
p,a
n1{l li:o !
thfo'r,rnil
PLA0001 71

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1

James R. Condo (#005867)

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

Snell & Wilmer

ICEARIZONA MANAGER CO LLC, a

Snell & Wilmer

The Court should, therefore, deny the Motion to Modify Temporary

MEMORANDUM OF POINTS AND AUTHORITIES

RELEVANT FACTUAL BACKGROUND

Court correctly entered the TRO.

Snell & Wilmer

Because Plaintiffs Performed (or Will Perform) Through July 1, So

engagement which is now terminated).8

The City took no action on this

reliance on the Citys inactions over the last nineteen months.

See TRO Hrg Tr., 34:2-4, Exhibit A.

Snell & Wilmer

team, we are prepared to negotiate a mutually beneficial approach to address

through June 30, 2015.

Second, the City is using A.R.S. 38-511 as a negotiating tactic, not as a

Third, the City acknowledges that Plaintiffs have not breached, or

result the City seeks.

65(c) allows a dissolution or modification of a preliminary injunction on a showing of

outright. Nevertheless, Plaintiffs turn to the merits of the Citys arguments.

Snell & Wilmer

judgment could be rendered meaningless . . . .) (internal citation omitted). Indeed, the

The Fundamental Purpose of the TRO Is to Preserve the Status Quo

Snell & Wilmer

facts in Asa, 757 F. Supp. 2d at 240.

transferable license to use Pictometrys technology within a defined geographic area in

Relieving the City of Its Obligation to Pay Plaintiffs Would Be

Snell & Wilmer

Plaintiffs count on those quarterly payments, and provided services in anticipation of

otherwise valid and enforceable Agreement by withholding payment from Plaintiffs.

contract which the parties have not put there.).

Maucher v. City of Eloy Is Inapposite

does not stand for that proposition.

voiding the balance of the original contract Id.

Snell & Wilmer

Maucher is distinguishable from this case in at least four significant ways.

The Agreement Is in Full Force and Effect

distinction between Maucher and this case.

uncompensated. Maucher does not stand for such an inequitable result.

Maucher Involved Different Remedies Under a Different

Mauchers Policy Considerations Are Wholly Absent

Snell & Wilmer

Maucher properly prevented a city engineer from self-dealing, no such policy

considerations exist here.

Unlike here, Maucher involved a public official, in his official

Allowing the City to Deposit the July 1, 2015 Payment in Escrow

Snell & Wilmer

require a $4 million bond.

The Court Should Not Alter the Bond Amount

The City Already Litigated, and Lost, the Bond Argument

The Court Set an Appropriate Bond Amount

the Court abused its discretion in any way.

The City Fails to Show They Would Suffer $4 Million in Damages

Snell & Wilmer

of a wrongful injunction.18 See Smith v. Coronado Foothills Estates Homeowners Assn

Motion, at 11:4-6; TRO Hrg Tr., 33:8-13.

Snell & Wilmer

DATED this 25th day of June, 2015.