HomeMy WebLinkAboutContract 51964 02/27/19
1:37 PM
Developer and Project Information Cover Sheet:
Developer Company Name: HPC BERKSHIRE DEVELOPMENT CORPORATION
Address, State,Zip Code: 3001 Knox Street, Suite 207 11 Dallas,Texas 75205
Phone&Email: 214-445-2200 11 ben@hanoverproperty.com
Authorized Signatory,Title: HPC BERKSHIRE DEVELOPMENT CORPORATION
A Texas Corporation
Name: Ben Luedtke
Title:Executive Vice President
Project Name and Brief Richmond Phase 2
Description:
Project Location: Southeast of the Blue Mound Road and US 287 Intersection
Plat Case Number: FP-16-043 Plat Name: Richmond Phase 2
Mapsco: 20X Council District: 7 City Project Number: 100538
CFA Number: 2017-156 DOE Number: none
City of Fort Worth,Texas ---
Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 JLC`RECO
RD
CFA Official Release Date: 10.31.2016
Page 1 of 14 CITY SECRET
FT. WORTH,
51964
ESCROW AGREEMENT TO REPLACE COMPLETION AGREEMENT
THIS ESCROW AGREEMENT (the"Agreement"), entered into as of this 27th day of
February 2019 by and among HPC BERKsm.E DEVELOPMENT CORPORATION,
("Developer"), the City of Fort Worth, a Texas municipal corporation ("Fort Worth") and Texas
Capital Banka National Association,a national banking corporation("Escrow Agent")is to witness
the following:
WHEREAS, Developer and Fort Worth have entered into a Community Facilities
Agreement for Richmond Phase 2 (CFA#2017-156, CPN# 100538 City Secretary No. 50060,) in
the City of Fort Worth, Tarrant County,Texas (the"CFA"); and
WHEREAS, the CFA provides that Developer shall submit to Fort Worth performance
bonds, cash deposits or other financial security acceptable to Fort Worth (collectively, the
"Financial Security") for the purpose of guaranteeing satisfactory compliance by Developer with
all requirements, terms, and conditions of the CFA (the"CFA Obligations"); and
WHEREAS,the Developer previously executed a Completion Agreement(City Secretary
Contract No. 50060) as financial security guaranteeing satisl:actory compliance with the CFA
Obligations for the On-Site Infrastructure for the project, and an Escrow Pledge Agreement as
financial security guaranteeing satisfactory compliance with the CFA Obligations for the Off-Site
Infrastructure for the Project; and
WHEREAS,the Developer desires to replace the Completion Agreement with this Escrow
Agreement; and
WHEREAS, City staff has determined that the amount of this Escrow Agreement is
adequate financial security to guarantee satisfactory compliance by the Developer with the
remaining CFA Obligations for the On-Site Infrastructure; and.
WHEREAS, the Escrow Agent has provided to the Developer an acquisition and
development loan in the amount of$10,725,975.00 as evidence by the certain promissory note
dated November 3rd 2017 (herein the"Development Loan")
WHEREAS, Developer and Fort Worth desire and agree that Developer be allowed to
escrow and pledge cash deposits to Fort Worth, to be held by Escrow Agent, as an escrow agent,
in complete satisfaction of the obligation to submit the Financial Security to secure the
performance of the remaining CFA Obligations for the On-Site Infrastructure.
NOW THEREFORE, for and in consideration of these recitals, ten dollars ($10.00) and
other good and valuable consideration,the receipt, sufficiency and adequacy of which are hereby
acknowledged,the parties hereto hereby agree as follows:
City of Fort Worth,Texas FOFF!ICIAL RECORD
Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.201tiSECRETARYCFA Official Release Date: 10.31.2016Page 2 of 14 . WORTH,TX
SECTION 1. DEFINED TERMS.
For the purposes of this Agreement, unless the context otherwise clearly requires, the
following terms shall have the following meanings:
"Security Funds" shall mean the cash deposit of One million four hundred ninety five
thousand one hundred fifty one dollars and ninety nine cents ($ 1,495,151.99),which sum
represents one hundred twenty-five percent (125%) of the estimated Developer's cost of
constructing the remaining CFA Obligations for the On-Site Infrastructure(the"Estimated
Developer's Cost").
SECTION 2. SECURITY FUNDS.
As financial security for the full and punctual performance of the remaining CFA
Obligations for the On-Site Infrastructure,Developer hereby pledges,assigns,and transfers to Fort
Worth, and hereby grants to Fort Worth a security interest in the Security Funds and all rights and
privileges pertaining thereto with the exception of the interest income to be derived therefrom
(which interest income shall remain the property of Developer and shall be distributed by Escrow
Agent in accordance with Developer's periodic instructions) subject, however, to the terms,
covenants, and conditions hereinafter set forth. The security interest granted and the assignments
made hereunder are made as security only and shall not subject the City of Fort Worth or Escrow
Agent to, or transfer or in any way affect or modify, any obligation of Developer with respect to
the CFA Obligations or Security Funds or any transaction involving or giving rise therefrom.
SECTION 3. PHYSICAL POSSESSION OF SECURITY FUNDS.
Concurrently with the execution of the Agreement, Escrow Agent and Developer has agreed that
the Security Funds shall be set aside from the general construction funds available under the
Development Loan and said Security Funds shall not be advanced by Escrow Agent until Escrow
Agent has determined that the Developer has satisfied the CFA obligations and confirmed with the
City of Fort Worth that the CFA Obligations have been performed by Developer. The parties
acknowledge and agree that Escrow Agent shall be required to set aside the Security Funds from
other funds to be disbursed by Escrow Agent for Developer in accordance with the normal
practices of Escrow Agent acting as an escrow agent.Escrow Agent shall return all funds set aside
pursuant to this Escrow Agreement or such amount remaining in the set aside funds (or take such
other action as Developer may request or direct) immediately after receipt of written notice from
Fort Worth that the CFA Obligations have been fully performed. During such time as Escrow
Agent has set aside all or any portion of the Security Funds,Escrow Agent shall furnish to the City
of Fort Worth(when requested by Fort Worth)written acknowledgment(s)signed by an officer of
Escrow Agent detailing the amount of the Security Funds. Fort Worth's rights in the Security
Funds shall be superior to those of Escrow Agent's notwithstanding any terms or understandings
(written or otherwise)between Developer and Escrow Agent.
City of Fort Worth,Texas
Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 ME
CFA Official Release Date: 10.31.2016
Page 3 of 14
SECTION 4. COVENANTS.
(a) Affirmative Covenants. So long as any of the CFA. Obligations remain unperformed,
Developer covenants and agrees that Developer will:
(i) from time to time execute and deliver to Fort Worth all such assignments,
certificates, supplemental writings, and other items and do all other acts or
things as Fort Worth may reasonably request in order to evidence and perfect
the security interest of Fort Worth in the Security Funds;
(ii) furnish Fort Worth with information which Fort Worth may reasonably request
concerning the Security Funds;
(iii) notify Fort Worth of any claim, action, or proceeding affecting title to the
Security Funds or Fort Worth's security interest(s)therein; and
(iv) adjust the Security Funds to an amount equal to the actual contract price,
including revisions thereto, if the original Security Funds were based on an
engineer's estimate of costs.
(b) Negative Covenants. So long as any of the CFA Obligations remain unperformed,
Developer covenants and agrees that Developer will not:
(i) assign or transfer any rights of Developer in the Security Funds; or
(ii) create any Lien in the Security Funds, or any part thereof, or permit the same to
be or become subject to any Lien except the security interest herein created in
favor of Fort Worth.
SECTION 5. EVENTS OF DEFAULT.
Developer shall be in default under this Agreement only upon the happening of any of the
following events (a"Default"):
(a) default in the timely payment for or performance of the CFA Obligations after written
notice thereof has been given to Developer and Escrow Agent and such default is not
cured within seven (7) days after such notice;
(b) any affirmative or negative covenant is breached by Developer.
SECTION 6. RIGHTS AND REMEDIES OF FORT WORTH UPON AND AFTER
DEFAULT.
(a) Remedy. Upon the occurrence of a Default, Fort Worth shall have the right to direct
Escrow Agent to transfer to Fort Worth all of the Security Funds. Escrow Agent is
hereby authorized to transfer the Security Funds immediately upon the receipt of a
City of Fort Worth,Texas
Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 JLE
CFA Official Release Date: 10.31.2016
Page 4 of 14
written statement purporting to be executed by an authorized representative of Fort
Worth stating that:
(i) a Default by Developer has occurred related to the CFA Obligations;
(ii) written notice of such Default has been given by Fort Worth to Developer and
Escrow Agent and such Default was not cured within seven (7) days after
delivery of such notice; and
(iii) Fort Worth is entitled to have the Security Funds transferred in accordance with
the Agreement.
(b) Notices.Any notice required or permitted to be given to any party hereto shall be given
in writing, shall be personally delivered or mailed by prepaid certified or registered
mail to such party at the address set forth below, and shall be effective when actually
received.
To Developer:
HPC Berkshire Development Corporation
Attention: Ben Luedtke
3001 Knox Street, Suite 207
Dallas , Tcxas 75205
To: Escrow Agent:
Texas Capital Bank, National Association
Attention: Jocelyn Ansley
2350 Lakeside Boulevard, Suite 800
Richardson, Texas 75082
To: City of Fort Worth
City Of Fort Worth
Attn: City Treasurer
200 Texas Street
Fort Worth, TX 76102
With a copy to:
City of Fort Worth
Attn: CFA Administration
200 Texas Street
Fort Worth, TX 76102
City of Fort Worth,Texas
Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 ME
CFA Official Release Date: 10.31.2016
Page 5 of 14
Any party may change its address for notice by giving all other parties hereto notice to such
change in the manner set forth in this Section no later than ten(10) days before the effective date
of such new address.
SECTION 7. EXCLUSIVE RIGHTS AND REMEDIES.
If the Developer fails to perform its obligations under the CFA, Fort Worth's sole and
exclusive remedy shall be to complete the obligations of Developer at Developer's expense. In
furtherance of such sole and exclusive remedy, Fort Worth is entitled to exercise its rights as set
forth in Section 6 hereof.
SECTION 8. SUBSTITUTION OF COLLATERAL.
Notwithstanding any contrary provision in this Agreement, Developer shall have the right,
at any time and from time to time, to obtain releases of all or any part of the Security Funds
(hereinafter called the "Released Collateral") upon satisfaction of the following conditions:
(a)Developer shall provide Fort Worth and Escrow Agent written notice(the"Substitution
Notice") that the Developer desires to obtain Released Collateral in exchange for a
contemporaneous substitution of an alternate Financial Security acceptable to Fort
Worth (as specified and described in the Substitution Notice); and
(b) Developer shall pledge to, or obtain for the benefit of Fort Worth, and deliver to Fort
Worth the alternate Financial Security acceptable to Fort Worth (the "Substituted
Collateral") which Substituted Collateral shall in the aggregate be at least equal to the
Estimated Developer's Cost; and
(c) Said Substituted Collateral shall be of sufficient amount(s)to cover all work which has
occurred prior to the substitution of collateral provided for in this Section.
Upon satisfaction of the above-specified conditions, Escrow Agent shall be authorized
(without the further consent of Fort Worth) to return to Developer the original Security Funds in
Escrow Agent's possession that represent or evidence the Released Collateral or take such other
action with respect to the Released Collateral as Developer may request or direct. Developer shall
pay the expenses incurred by Escrow Agent in connection with obtaining each such release and
substitution.
SECTION 9 PERIODIC WITHDRAWAL OF COLLATERAL.
Notwithstanding any contrary provision in this Agreement, Developer shall have the right to
periodic withdrawals of the Security Funds from set aside amount (hereinafter called the
"Withdrawn Collateral"), upon satisfaction of the following conditions:
(a) Developer shall provide the City of Fort Worth and Escrow Agent with written notice
(the "Withdrawal Notice") that Developer desires to obtain the Withdrawn Collateral
City of Fort Worth,Texas
Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 JLE
CFA Official Release Date: 10.31.2016
Page 6 of 14
in any amount less than or equal to the then-completed CFA Obligations as inspected
or accepted by Fort Worth and verified by Escrow Agent; and
(b) the balance of the Security Funds after withdrawal of the Withdrawn Collateral is at
least equal to the estimated value of the CFA Obligations then remaining to be
performed (such remaining value is hereinafter called the "Estimated Cost to
Complete").
The Withdrawal Notice shall include a description of the Withdrawn Collateral and Developer's
calculation of the Estimated Cost to Complete.Upon receipt of the Withdrawal Notice,Fort Worth
shall have seven (7) calendar days to notify Developer of Fort Worth's objection to Developer's
calculation of the Estimated Cost to Complete by providing Developer with Fort Worth's
calculation of the Estimated Cost to Complete. The grounds for any objection are limited solely to
a good faith determination by Fort Worth that the balance of the Security Funds is insufficient to
cover the Estimated Cost to Complete. If Fort Worth fails to timely notify Developer and Escrow
Agent of any objection, then Developer's calculation shall be deemed to have been accepted and
approved by the City of Fort Worth and Escrow Agent is authorized to release the Withdrawn
Collateral requested by Developer without delay. In the event a written objection is timely filed by
Fort Worth and Fort Worth's calculation is within a range of five percent (511o) of Developer's
Estimated Cost to Complete, then Developer shall be allowed to withdraw the amount
corresponding to Fort Worth's calculation of the Estimated Cost to Complete. If Fort Worth's
calculation of the Estimated Cost to Complete is outside a range of five percent (5%) of
Developer's Estimated Cost to Complete, then Fort Worth and Developer, through a designated
representative, will reconcile the calculations and jointly approve an Estimated Cost to Complete
and advise Escrow Agent to disburse the amount as jointly determined.
If after the expiration of two (2) years from the date of this Agreement either:
(i) none of the CFA Obligations have been performed; or
(ii) there has been partial performance but the term of the CFA has not been extended
by Fort Worth; then
in either event, the City of Fort Worth shall be entitled to receive the Security Funds as specified
in Section 6 and construct the improvements contemplated in the CFA.
SECTION 10. NON-ACCESSIBILITY OF FORT WORTH'S RIGHTS.
The rights,powers,and interests held by Fort Worth hereunder in and to the Security Funds
may not be transferred or assigned by Fort Worth in whole or in part. Any attempted transfer or
assignment shall be absolutely void and shall entitle Developer to a release of all Security Funds.
SECTION 11. NO WAIVER.
No waiver by Fort Worth of any Default shall be deemed to be a waiver of any other
subsequent Default. No delay or omission by Fort Worth in exercising any right or power
City of Fort Worth,Texas
Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 ME
CFA Official Release Date: 10.31.2016
Page 7 of 14
hereunder shall impair any such right or power or be construed as a waiver thereof, nor shall any
single or partial exercise of any such right or power preclude other or further exercise thereof.
SECTION 12. BINDING EFFECT.
This Agreement shall be binding on the parties, their successors and assigns.No provision
of this Agreement may be amended, waived, or modified except pursuant to a written instrument
executed by Fort Worth, Escrow Agent and Developer.
SECTION 13. CHOICE OF LAW.
This Agreement is to be construed and interpreted in accordance with the laws of the State
of Texas.
SECTION 14. COUNTERPARTS.
This Agreement may be executed in any number of multiple counterparts and by different
parties on separate counterparts,all of which when taken together shall constitute one and the same
agreement.
SECTION 15. INDEMNITY.
Developer hereby agrees to release,hold harmless,and indemnify Escrow Agent(and
its directors, officers, employees, agents and representatives) from and against all claims,
damages, expenses, costs, suits and other liability of any kind whatsoever that arise out of or
are directly or indirectly related to the performance by Escrow Agent of its duties hereunder
except for the gross negligence or willful misconduct of Escrow Agent or its directors,
officers, employees, agents or representatives and Developer hereby agrees to release, hold
harmless,and indemnify Fort Worth(and its respective directors,officers,employees,agents
and representatives) from and against all claims, damages, expenses, costs, suits and other
liability of any kind whatsoever that arise out of or are directly or indirectly related to any
actions or inaction by Fort Worth with respect to this Agreement.
SECTION 16. PAYMENT OF ESCROW FEES
Developer will be responsible for the payment of all fees to Escrow Agent associated with
this Agreement.
REMAINDER OF THIS PAGE INTENTIONALLY BLANK
City of Fort Worth,Texas
Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 JLE
CFA Official Release Date: 10.31.2016
Page 8 of 14
ACCORDINGLY,the City of Fort Worth,Developer and Escrow Agent have each caused
this instrument to be executed in quadruplicate in each entity's respective name by its duly
authorized signatories effective as of the date executed by the City Manager or his/her designee.
CITY OF FORT WORTH DEVELOPER
HPC BERKSHIRE DEVELOPMENT
CORPORATION
7n %tel r 7
Jesus J.Chapa(Feb 20,2 19)
Jesus J. Chapa isc Licer7t�Ce
Assistant City Manager Ben Luedtke(Feb 13,2019)
Name: Ben Luedtke
Date: Feb 20,2019 Title: Executive Vice President
Approved at to Form &Legality: Date: Feb 13, 2019
�uic2c�,w ?r� ESCROW AGENT
Richard A.McCracken(Feb 20,2019) Texas Capital Bank,National Association
Richard A. McCracken
Assistant City Attorney
%Iw!P
M&C No. N/A ik ypad Fk.atd
Jennifer Fisher(Feb 19,2019)
Date:
Form 1295: N/A Name: Jocelyn Ansley
Title: Senior Vice President
ATTEST: OR rDate: Feb 19, 2019
iv%a x✓. Kayser �r�♦'
Mary J.Kayser(Feb 27,20191 �..J? _ �•
i
Mary J. Kayserf f Contract Compliance Manager
City Secretary
�XBy signing I acknowledge that I am the
person responsible for the maintaining and
administration of this contract, including
ensuring all performance and reporting
requirements.
,%arlie SGarle"ff iqoraiG5
Janie Scarlett Morates(Feb 19,2019)
Janie S. Morales
Development Manager
City of Fort Worth,Texas
Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.201 1RE
FiClARECORD
CFA Official Release Date: 10.31.2016
Page 9 of 14 CITY SECRETARY
FT. WORTH,TX
ATTACHMENT "1"
Changes to Standard Agreement
Escrow Pledge Agreement
The Following Recitals were added to the Agreement:
WHEREAS, the Developer previously executed a Completion Agreement (City
Secretary Contract No. 50060) as financial security guaranteeing satisfactory compliance
with the CFA Obligations for the On-Site Infrastructure for the project, and an Escrow
Pledge Agreement as financial security guaranteeing satisfactory compliance with the CFA
Obligations for the Off-Site Infrastructure for the Project; and
WHEREAS,the Developer desires to replace the Completion Agreement with this
Escrow Agreement; and
WHEREAS, City staff has determined that the amount of this Escrow Agreement
is adequate financial security to guarantee satisfactory compliance by the Developer with
the remaining CFA Obligations for the On-Site Infrastructure; and
WHEREAS, the Escrow Agent has provided to Developer an acquisition and
development loan in the amount of$10,725,975.00 as evidence by the certain promissory
note dated November 3`a 2017 (herein the "Development Loan")
The Following are changes to the Standard Agreement:
Page 2 11 Paragraph 2 of Declarations:
o Remove DOE Number and insert City Project Number.
o Revise paragraph to say:
WHEREAS, Developer and Fort Worth have entered into a
Community Facilities Agreement for Richmond Phase 2 (CFA#2017-156,
City Project Number. 100538,City Secretary No. 50060,) in the City of
Fort Worth, Tarrant County, Texas (the "CFA"); and
Page 2 11 Paragraph 3 of Declarations:
o Revise paragraph to say:
WHEREAS,the CFA provides that Developer shall submit to Fort
Worth performance bonds, cash deposits or financial security acceptable
to Fort Worth(collectively, the"Financial Security") for the purpose of
guaranteeing satisfactory compliance by Developer with all requirements,
terms, and conditions of the CFA(the "CFA Obligations"); and
Page 2 11 Paragraph 7 of Declarations:
o Revise paragraph to say:
City of Fort Worth,Texas
Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 ME
CFA Official Release Date: 10.31.2016
Page 9 of 14
WHEREAS, Developer and Fort Worth desire and agree that
Developer be allowed to escrow and pledge cash deposits to Fort Worth,
to be held by Escrow Agent, as an escrow agent, in complete satisfaction
of the obligation to submit the Financial Security to secure the
performance of the remaining CFA Obligations for the On-Site
Infrastructure.
Page 2 11 Section 1. Defined Terms:
o Revise definition of Security funds to be:
"Security Funds" shall mean the sum of One million four hundred ninety
five thousand one hundred fifty one dollars and ninety nine cents ($
1,495,151.99), which sum represents one hundred twenty-five percent
(125%) of the estimated Developer's cost of constructing the remaining
CFA Obligations for the On-Site Infrastructure (the "Estimated
Developer's Cost").
Page 3 11 Section 2. Security Funds:
o Revise paragraph to say:
As financial security for the full and punctual performance of the
remaining CFA Obligations for the On-Site Infrastructure, Developer
hereby pledges, assigns, and transfers to Fort Worth, and hereby grants to
Fort Worth a security interest in the Security Funds and all rights and
privileges pertaining thereto with the exception of the interest income to
be derived therefrom(which interest income shall remain the property of
Developer and shall be distributed by Escrow Agent in accordance with
Developer's periodic instructions) subject,however, to the terms,
covenants, and conditions hereinafter set forth. The security interest
granted and the assignments made hereunder are made as security only
and shall not subject the City of Fort Worth or Escrow Agent to, or
transfer or in any way affect or modify, any obligation of Developer with
respect to any of the CFA Obligations or Security Funds or any transaction
involving or giving rise therefrom.
Page 3 Section 3. Physical Possession of Security Funds:
o Revise paragraph to say:
Concurrently with the execution of the Agreement, Escrow Agent
and Developer has agreed that the Security Funds shall be set aside from
the general construction funds available under the Development Loan and
said Security Funds shall not be advanced by Escrow Agent until Escrow
Agent has determined that the Developer has satisfied the CFA obligations
and confirmed with the City of Fort Worth that the CFA Obligations have
been performed by Developer. The parties acknowledge and agree that
Escrow Agent shall be required to set aside the Security Funds from other
funds to be disbursed by Escrow Agent for Developer in accordance with
the normal practices of Escrow Agent acting as an escrow agent. Escrow
Agent shall return all funds set aside pursuant to this Escrow Agreement
or such amount remaining in the set aside funds (or take such other action
as Developer may request or direct) immediately after receipt of written
notice from Fort Worth that the CFA Obligations have been fully
performed. During such time as Escrow Agent has set aside all or any
City of Fort Worth,Texas
Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 ME
CFA Official Release Date: 10.31.2016
Page 10 of 14
portion of the Security Funds,Escrow Agent shall furnish to the City of
Fort Worth(when requested by Fort Worth)written acknowledgment(s)
signed by an officer of Escrow Agent detailing the amount of the Security
Funds.Fort Worth's rights in the Security Funds shall be superior to those
of Escrow Agent's notwithstanding any terms or understandings (written
or otherwise)between Developer and Escrow Agent.
Page 6 11 Section 8. Substitution of Collateral:
o Revise section to say:
Notwithstanding any contrary provision in this Agreement,
Developer shall have the right, at any time and from time to time,to obtain
releases of all or any part of the Security Funds (hereinafter called the
"Released Collateral")upon satisfaction of the following conditions:
(a) Developer shall provide Fort Worth and Escrow Agent written notice
(the "Substitution Notice") that the Developer desires to obtain Released
Collateral in exchange for a contemporaneous substitution of an alternate
Financial Security acceptable to Fort Worth (as specified and described in
the Substitution Notice); and
(b) Developer shall pledge to, or obtain for the benefit of Fort Worth, and
deliver to Fort Worth the alternate Financial Security acceptable to Fort
Worth (the "Substituted Collateral") which Substituted Collateral shall in
the aggregate be at least equal to the Estimated Developer's Cost; and
(c) Said Substituted Collateral shall be of sufficient amount(s) to cover all
work which has occurred prior to the substitution of collateral provided for
in this Section.
Upon satisfaction of the above-specified conditions,Escrow Agent shall be
authorized (without the further consent of Fort Worth) to return to
Developer the original Security Funds in Escrow Agent's possession that
represent or evidence the Released Collateral or take such other action with
respect to the Released Collateral as Developer may request or direct.
Developer shall pay the expenses incurred by Escrow Agent in connection
with obtaining each such release and substitution.
Page 6-7 Section 9. Periodic Withdarawal of Collateral:
o Revise section to say:
Notwithstanding any contrary provision in this Agreement,
Developer shall have the right to periodic withdrawals of the Security Funds
from the set aside amount(hereinafter called the "Withdrawn Collateral"),
upon satisfaction of the following conditions:
(a) Developer shall provide the City of Fort Worth and Escrow
Agent with written notice (the "Withdrawal Notice") that
Developer desires to obtain the Withdrawn Collateral in any
amount less than or equal to then-completed CFA Obligations
as inspected or accepted by Fort Worth and verified by Escrow
Agent; and
City of Fort Worth,Texas
Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 ME
CFA Official Release Date: 10.31.2016
Page 11 of 14
(b) the balance of the Security Funds after withdrawal of the
Withdrawn Collateral is at least equal to the estimated value of
the CFA Obligations then remaining to be performed (such
remaining value is hereinafter called the "Estimated Cost to
Complete").
The Withdrawal Notice shall include a description of the Withdrawn
Collateral and Developer's calculation of the Estimated Cost to Complete.
Upon receipt of the Withdrawal Notice, Fort Worth shall have seven (7)
calendar days to notify Developer of Fort Worth's objection to Developer's
calculation of the Estimated Cost to Complete by providing Developer with
Fort Worth's calculation of the Estimated Cost to Complete. The grounds
for any objection are limited solely to a good faith determination by Fort
Worth that the balance of the Security Funds is insufficient to cover the
Estimated Cost to Complete. If Fort Worth fails to timely notify Developer
and Escrow Agent of any objection, then Developer's calculation shall be
deemed to have been accepted and approved by the City of Fort Worth and
Escrow Agent is authorized to release the Withdrawn Collateral requested
by Developer without delay. In the event a written objection is timely filed
by Fort Worth and Fort Worth's calculation is within a range of five percent
(5%) of Developer's Estimated Cost to Complete, then Developer shall be
allowed to withdraw the amount corresponding to Fort Worth's calculation
of the Estimated Cost to Complete. If Fort Worth's calculation of the
Estimated Cost to Complete is outside a range of five percent (5%) of
Developer's Estimated Cost to Complete, then Fort Worth and Developer,
through a designated representative, will reconcile the calculations and
jointly approve an Estimated Cost to Complete and advise Escrow Agent to
disburse the amount as jointly determined.
If after the expiration of two (2) years from the date of this
Agreement either:
(i) none of the CFA Obligations have been performed; or
(ii) there has been partial performance but the term of the CFA
has not been extended by Fort Worth; then
in either event, the City of Fort Worth shall be entitled to receive the
Security Funds as specified in Section 6 and construct the improvements
contemplated in the CFA.
Page 8 11 Section 15. Indemnity:
o Revise section to include underlining beneath the word Fort Worth:
Developer hereby agrees to release, hold harmless, and indemnify
Escrow Agent (and its directors, officers, employees, agents and
representatives) from and against all claims, damages, expenses, costs,
suits and other liability of any kind whatsoever that arise out of or are
directly or indirectly related to the performance by Escrow Agent of its
City of Fort Worth,Texas
Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 JLE
CFA Official Release Date: 10.31.2016
Page 12 of 14
duties hereunder except for the gross negligence or willful misconduct
of Escrow Agent or its directors, officers, employees, agents or
representatives and Developer hereby agrees to release, hold harmless,
and indemnify Fort Worth (and its respective directors, officers,
employees, agents and representatives) from and against all claims,
damages, expenses, costs, suits and other liability of any kind
whatsoever that arise out of or are directly or indirectly related to any
actions or inaction by Fort Worth with respect to this Agreement.
City of Fort Worth,Texas
Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 JLE
CFA Official Release Date: 10.31.201 b
Page 13 of 14