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HomeMy WebLinkAboutContract 52059 03/21/19 509059 8:06 AM ENHANCED COMMUNITY FACILITIES AGREEMENT STREETSCAPE IMPROVEMENTS Developer Company Name: PQ T WQR H;HERITA DEVELOPMENT,LLC, a Texas limited:.liabilityc0mpany Address, State,Zip Code: 13191 Crossroads Parkway N., Ste 600 City of Industry,CA 91746 Phone&Email: CCavileer(aD,majesticrcalt.com;'569-948-4342 Authorized Signatory,Title: Edward P,.R©skd,-its authorized repzel$pntative. Project Name: Streetscape Improvements for East Exchange Avenue Between North Main Street and Packers Avenue Brief Description: Installation of streetscape improvements for East Exchange Avenue Between North Main Street and Packers Avenue Project Location: East Exchange Avenue from North Main Street to Packers Avenue Plat Case Number: NA Plat Name: NA<Plat Name> Mapsco: 062-G/ Council District: 2 City Project Number: 101782 062-L CFA Number: CFA-18-0136 DOE Number: <DOE#> City of Fort Worth,Texas Enhanced Community Facilities Agreement with City Participation-Streetscape Improvements 'r East Exchange Avenue Between North Main Street and Packers Avenue ®FFi IAL RECORD CFA Official Release Date:01.22.2017 Page 1 of 24 CITY SECRETARY FT. VIlORTH, TX ENHANCED COMMUNITY FACILITIES AGREEMENT STREETSCAPE IMPROVEMENTS THE STATE OF TEXAS § City Secretary COUNTY OF TARRANT § Contract No. 52059 WHEREAS, Fort Worth Heritage Development, LLC, a Texas limited liability company ("Developer'), desires to make certain public improvements in the Fort Worth Historic Stockyards within the City of Fort Worth,Texas("City")related to a project generally described as Streetscape Improvements for East Exchange Avenue Between North Main Street and Packers Avenue("Project"); and WHEREAS, Developer and the City desire to enter into this Enhanced Community Facilities Agreement("ECFA"or"Agreement")in connection with construction of streetscape improvements along East Exchange Avenue from North Main,Street to Packers Avenue as more specifically described below and on the exhibits attached hereto (the" Streetscape Improvements"); and WHEREAS, Developer and the City entered into a separate Enhanced Community Facilities Agreement, City Secretary Contract No. 50814, in connection with upsizing and rerouting of a wastewater line generally located along Mule Alley and continuing northeast to Northeast 23rd Street(the"Sewer ECFA"); and WHEREAS, the City and Commerce Construction Co., L.P. ("Commerce") entered into a Construction Manager-Agent Agreement for the Project and such sewer improvements, City Secretary Contract No. 50815 (the"CMA"); and WHEREAS, the City has reviewed the Project and, as authorized by City Council via M&C C-27995 on November 15,2016,desires to participate in the Project in accordance with this Agreement, as presented by the Cost Summary Table and Exhibits attached hereto; and WHEREAS, the City's combined participation in the cost of the Streetscape Improvements, the Sewer ECFA, and the Construction Manager Payments as defined in the CMA(collectively,"City Participation Amount") shall be in an amount up to$7,900,000; and WHEREAS, if the total cost for the Streetscape Improvements, the Sewer ECFA, and the Construction Manager Payments pursuant to the CMA exceeds$7,900,000,Developer shall pay such excess costs; and City of Fort Worth,Texas Enhanced Community Facilities Agreement with City Participation-Streetscape Improvements for Eas OFMIAL RECORD Avenue Between North Main Street and Packers Avenue CFA Official Release Date:01.22.2017 CITY SECRETARY Page 2 of 24 FT. WORTH,TX WHEREAS, the City has agreed to pay the City Participation Amount as part of a larger economic development project in the vicinity of the Streetscape Improvements and the Sewer ECFA, specifically the relocation by Rural Media Group, Inc., its successors, assigns, affiliates or subsidiaries ("RMG") of its corporate headquarters to an approximately 5,250 square foot lease space in the Stockyards Visitors' Center located at 130 E.Exchange Avenue and the relocation of its primary broadcasting studio to the renovated historic Auction Barn located at 409 E. Exchange Avenue (collectively, the"RMG Sites"), and WHEREAS, RMG is a leading provider of multimedia content dedicated to the American rural and Western lifestyle and is the parent company of RFD-TV, RURAL RADIO,the Cowboy Channel, and RFD-TV The Magazine; and WHEREAS,the RMG Sites are owned by Developer and will be leased by Developer to RMG; and WHEREAS, the City believes that RMG's operations in the Historic Fort Worth Stockyards will advance the City's goal of ensuring the vitality and preservation of its western heritage and the continued success and vitality of the Stockyards; and WHEREAS, Developer helped facilitate RMG's relocation to the RMG Sites and considers RMG's presence at the RMG Sites as an enhancement to a larger development in the Historic Fort Worth Stockyards that Developer intends to undertake; and WHEREAS, without RMG's agreement to relocate and maintain its corporate headquarters and primary broadcasting studio on the RMG Sites as described in this Agreement,the City would not have agreed to participate in the cost of any of the Streetscape Improvements hereunder or the sewer improvements pursuant to the Sewer ECFA; and WHEREAS, the City has entered into that certain Tax Increment Financing Development Agreement with the Board of Directors of Tax Increment Reinvestment Zone No. 15, City of Fort Worth, Texas (the"TIF") dated as of see CSC #50816 (the"TIF Agreement")under which the City will be reimbursed for the City Participation Amount; and WHEREAS,in the event RMG fails to open and operate its corporate headquarters and primary broadcasting studio on the RMG Sites as further described in this Agreement,the City shall be entitled to reimbursement for the Streetscape Improvements, the improvements constructed pursuant to the Sewer ECFA and the amounts paid to Commerce pursuant to the CMA in an amount equal to the City Participation Amount, reduced by(i) any sums received City of Fort Worth,Texas Enhanced Community Facilities Agreement with City Participation-Streetscape Improvements for East Exchange Avenue Between North Main Street and Packers Avenue CFA Official Release Date:01.22.2017 Page 3 of 24 by the City from the TIF pursuant to the TIF Agreement; and(ii) any sums paid to the City by other developers and landowners connecting to the sewer improWements constructed pursuant to the Sewer ECFA,if any,under the terms set out below,up to all maximum reimbursement of $5,000,000, which reimbursement shall be in lieu of any further payments to the City by the TIF; and NOW, THEREFORE, for and in consideration of the covenants and conditions contained herein,the City and Developer do hereby agree as follows: General Requirements A. The Policy for the Installation of Community Facilities ("Policy") dated March 2001, approved by the City Council of the City of Fort Worth, as amended, is hereby incorporated into this Agreement as if copied herein verbatim. Developer agrees to comply with all provisions of said Policy in the performance of its duties and obligations hereunder and to cause all contractors hired by Developer to comply with the Policy in connection with the work performed by said contractors. B. Developer shall provide financial security in conformance with paragraph 6, Section II, of the Policy and recognizes that there shall be no reduction in the collateral until the Streetscape Improvements have been completed and the City has officially accepted the Streetscape Improvements. Developer further acknowledges that said acceptance process requires Developer's contractor(s) to submit a signed affidavit of bills paid signed by its contractor and consent of surety signed by its surety to ensure the contractor has paid any sub-contractor(s) and suppliers in full. Additionally,the contractor will provide in writing that the contractor has been paid in full by Developer for all the services provided under their contract. C. Developer agrees to cause the construction of the Streetscape Improvements contemplated by this Agreement and that said construion shall be completed in a good and workmanlike manner and in accordance with all City standards and the City-approved construction plans, specifications and cot estimates provided for the Streetscape Improvements and the exhibits attached her_1o. D. The following checked exhibits describe the Streetscape Improvements and are incorporated herein: Water(A) ❑, Sewer(A-1) D, Pa,,ing(B) ®, Storm Drain(13- 1) El, Street Lights& Signs(C) City of Fort Worth,Texas Enhanced Community Facilities Agreement with City Participation-Streetscape Improvements for East Exchange Avenue Between North Main Street and Packers Avenue CFA Official Release Date:01.22.2017 Page 4 of 24 E. Developer shall award all contracts for the construction of community facilities in accordance with Section II, paragraph 7 of the Policy and the contracts for the construction of the public infrastructure shall be administered in conformance with paragraph 8, Section II, of the Policy. Developer shall ensure its contractor(s) pays the then-current City-established wage rates. DEVELOPER MAY TERMINATE THIS AGREEMENT PRIOR TO AWARDING A CONTRACT FOR CONSTRUCTION OF THE STREETSCAPE IMPROVEMENTS IF RMG ELECTS NOT TO RELOCATE ITS CORPORATE HEADQUARTERS AND PRIMARY BROADCASTING STUDIO TO THE RMG SITES ON OR BEFORE JANUARY 1, 2020. UPON TERMINATION OF THIS AGREEMENT, DEVELOPER AND CITY SHALL HAVE NO FURTHER OBLIGATIONS PURSUANT TO THIS AGREEMENT. F. For all Streetscape Improvements included in this Agreement for which Developer awards construction contract(s),Developer agrees to the following: i. To employ a construction contractor who is approved by the director of the department having jurisdiction over the infrastructure to be constructed, said contractor to meet City's requirements for being prequalified, insured, licensed and bonded to do work in public ways and/or prequalified to perform water/wastewater construction as the case may be. ii. To require its contractor to furnish to the City a payment and performance bond in the names of the City and Developer for one hundred percent (100%) of the contract price of the infrastructure, and a maintenance bond in the name of the City for one hundred percent (100%) of the contract price of the infrastructure for a period of two (2) years from the date of final acceptance insuring the maintenance and repair of the constructed infrastructure during the term of the maintenance bond. All bonds to be furnished before work is commenced and to meet the requirements of Chapter 2253,Texas Government Code. iii. To require the contractor(s) it hires to perform the construction work contemplated herein to provide insurance equal to or in excess of the amounts required by the City's standard specifications and contract documents for developer-awarded infrastructure construction contracts. The City shall be named as additional insured on all insurance required by said documents and same will be evidenced on the Certificate of Insurance(ACORD or other state- City of Fort Worth,Texas Enhanced Community Facilities Agreement with City Participation-Streetscape Improvements for East Exchange Avenue Between North Main Street and Packers Avenue CFA Official Release Date:01.22.2017 Page 5 of 24 approved form) supplied by the contractor's insurance provider and bound in the construction contract book. iv. To require its contractor to give 48 hours advance notice of intent to commence construction to the City's Construction Services Division so that City inspection personnel will be available; to require the contractor to allow the construction to be subject to inspection at any and all times by City inspection forces,to not install or relocate any sanitary sewer, storm drain, or water pipe unless a responsible City inspector is present and gives his consent to proceed, and to make such laboratory tests of materials being used as may be required by the City. V. To require its contractor to have fully executed contract documents submitted to the City to schedule a Pre-Construction Meeting. The submittal should occur no less than 10 working days prior to the desired date of the meeting. No construction will commence without a City-issued Notice to Proceed to the Developer's contractor. vi. To delay connections of buildings to service lines of sewer and water mains constructed under this Agreement, if any,until said sewer and water mains and service lines have been completed to the satisfaction of the Water Department. G. Developer shall provide,at its expense,unless otherwise agreed to by City, all engineering drawings and documents necessary to construct the Streetscape Improvements under this Agreement. H. The City shall pay all costs incurred by Developer in the relocation of any utilities in connection with construction of the Streetscape Improvements; provided, however, in no event shall the City's combined participation in the cost of the Streetscape Improvements (including utility relocation costs), the Sewer ECFA, and the Construction Manager Payments as defined in the CMA (collectively, "City Participation Amount"), exceed $7,900.000. I. Developer hereby releases and agrees to indemnify, defend and hold the City harmless for any inadequacies in the preliminary plans,specifications and cost estimates supplied by Developer for this Agreement. J. Developer agrees to provide, at its expense, all necessary rights of way and easements across property owned by Developer and required for the construction of the Streetscape Improvements provided for by this Agreement. City of Fort Worth,Texas Enhanced Community Facilities Agreement with City Participation-Streetscape Improvements for East Exchange Avenue Between North Main Street and Packers Avenue CFA Official Release Date:01.22.2017 Page 6 of 24 K. Developer covenants and agrees to, and by these presents does hereby,fully indemnify, hold harmless and defend the City, its officers, agents and employees from all suits, actions or claims of any character, whether real or asserted, brought for or on account of any injuries(including death)or damages sustained by any persons or to any property, resulting from or in connection with the construction, design, performance or completion of any work to be performed by said Developer, his contractors, subcontractors, officers, agents or employees, or in consequence of any failure to properly safeguard the work, or on account of any act, intentional or otherwise, neglect or misconduct of said Developer, its contractors, sub-contractors, officers, agents or employees. L. Developer will further require its contractors to indemnify,defend and hold harmless the City, its officers, agents and employees from and against any and all claims, suits or causes of action of any nature whatsoever, whether real or asserted, brought for or on account of any injuries or damages to persons or property, including, death, resulting from or in any way connected with the construction of the infrastructure herein. Further, Developer will require its contractors to indemnify and hold harmless the City for any losses, damages, costs or expenses suffered by the City or caused as a result of any failure to complete work and construct the improvements in a good and workmanlike manner, free from defects, in conformance with the Policy and with all plans and specifications. M. Upon completion of all work associated with the construction of the Streetscape Improvements, Developer will assign to the City a non-exclusive right to enforce the contracts entered into by Developer with its contractor along with an assignment of all warranties given by the contractor,whether express or implied. Further, Developer agrees that all contracts with any contractor shall include provisions granting to the City the right to enforce such contracts as an express intended third party beneficiary of such contracts. N. Inspection and material testing fees are required as follows and further apportioned in the Cost Summary Table below: Not applicable. O. COMPLETION WITHIN 2 YEARS i. The City's obligation to participate in this Agreement shall terminate if the Streetscape Improvements are not completed within two(2)years from the date of this Agreement; provided, however, if construction of the Streetscape Improvements has started within the two-year period, Developer may request City of Fort Worth,Texas Enhanced Community Facilities Agreement with City Participation-Streetscape Improvements for East Exchange Avenue Between North Main Street and Packers Avenue CFA Official Release Date:01.22.2017 Page 7 of 24 that the ECFA be extended for one (1) additional year. Developer shall be entitled to such one (1) year extension if Developer is prevented from completing construction of the Streetscape Improvements by an event of force majeure, consisting of an act of God, civil commotion, terrorism, strikes, picketing, casualty, weather, or other similar matter beyond Developer's reasonable control. If the Streetscape Improvements are not completed within such extension period, there will be no further obligation of the City to participate. ii. Subject to paragraph i, above, the City shall reimburse Developer for the Streetscape Improvements up to the City Participation Amount upon presentation of proper documentation of completion of installation of the Streetscape Improvements and acceptance of the Streetscape Improvements pursuant to a"green sheet"executed by an Assistant City Manager. iii. Nothing contained herein is intended to limit Developer's obligations under the Policy, this Agreement, its financial guarantee, its agreement with its contractor or other related agreements. iv. The City may utilize Developer's financial guarantee submitted for this Agreement to cause the completion of the construction of the Streetscape Improvements if at the end of two (2) years from the date of this Agreement (and any extension period) the Streetscape Improvements have not been completed and accepted. V. If Developer's financial guarantee is not a Completion Agreement,the City may utilize Developer's financial guarantee to cause the payment of costs for construction of the Streetscape Improvements before the expiration of two (2) years if Developer breaches this Agreement and fails to cure the breach within thirty (30) days after receipt of written notice from the City describing the breach, becomes insolvent or fails to pay costs of construction. If Developer's financial guarantee is a Completion Agreement and Developer's contractors and/or suppliers are not paid for the costs of supplies and/or construction, the contractors and/or suppliers may put a lien upon the property which is the subject of the Completion Agreement. City of Fort Worth,Texas Enhanced Community Facilities Agreement with City Participation-Streetscape Improvements for East Exchange Avenue Between North Main Street and Packers Avenue CFA Official Release Date:01.22.2017 Page 8 of 24 P. Because the City's agreement to participate in the cost of the Sewer Improvements is based solely on the benefits described in the Recitals of this Agreement,notwithstanding anything to the contrary elsewhere in this Agreement, the City shall have the right to recover the Reimbursement Payment(as defined in Section Q)on the terms set out in Section R, after all of the following occur in this order: (a) either of the following events described in subsection(i)or subsection(ii)occurs;(b) the RMG Sites are not reoccupied in accordance with subsection(iii);and(c)the City provides thirty(30)days written Notice to Developer, with a copy to Tax Increment Reinvestment Zone No. 15, that the City is entitled to the Reimbursement Payment (a"Reimbursement Notice"): (i) RMG fails to open and commence operating its corporate headquarters and its primary broadcasting studio in the RMG Sites on or before January 1,2020, and the failure remains uncured after sixty(60) days following receipt by Developer of written notice of such failure provided by the City; or (ii) At any time between the date on which RMG opens and commences operating both its corporate headquarters and its primary broadcasting studio in the RMG Sites and the tenth anniversary of such date(the"Ten Year Anniversary"),RMG fails to use the RMG Sites for its corporate headquarters and its primary broadcasting studio for more than thirty (30) consecutive calendar days (other than on account of RMG's temporary displacement caused by a casualty and resulting ongoing repairs or restoration to the RMG Sites necessitated by such casualty) and RMG fails to resume using the RMG Sites for its corporate headquarters and primary broadcasting studio within sixty (60) calendar days following receipt by Developer of written notice from the City of such failure. (iii) Developer shall have a period of 120 days after(i)or(ii)occurs to obtain a new tenant whose primary business is operating a rural lifestyle broadcasting studio to occupy and use the RMG Sites as its corporate headquarters and primary broadcasting studio. The term of this Agreement shall be extended for a period equal to the amount of time from the occurrence of(i)or(ii)to the date on which the RMG Sites are reoccupied. Q. The Reimbursement Payment shall be an amount equal to the City Participation Amount,less (i)all sums received by the City from the TIF under the TIF Agreement;and(ii)all payments to the City by other developers and landowners of sewer per acre charges or other payments required as a condition of connecting to the improvements constructed pursuant to the Sewer City of Fort Worth,Texas Enhanced Community Facilities Agreement with City Participation-Streetscape Improvements for East Exchange Avenue Between North Main Street and Packers Avenue CFA Official Release Date:01.22.2017 Page 9 of 24 ECFA pursuant to Section 35-81, et seq. of the Code of the City of Fort Worth or other generally applicable City ordinances, if any such payments have been made, provided, however, in no event shall the Reimbursement Payment under this Agreement, the Streetscape ECFA and the CMA exceed $5,000,000. The City shall provide an accounting of payments received by the City, if any, pursuant to subsection (ii) to Developer upon request,but no more often than once per year. R. Upon receipt by Developer and the TIF of the Reimbursement Notice, the TIF shall cease making payments to the City pursuant to the TIF Agreement and the City shall be entitled to the Reimbursement Payment in accordance with this Section R. The City's sole remedy to recover the Reimbursement Payment shall be to deduct the amount of the Reimbursement Payment from any and all Program Grants payable by the City under the Economic Development Program Agreement between the City and Developer dated as of March 4, 2015 (City Secretary Contract No.. 46495), as amended by City Secretary Contract No. 46495-A1 dated as of May 22, 2017, and City Secretary Contract No. 46495-A2 dated as of June 25, 2018, until the City is reimbursed in full for the Reimbursement Payment. Thereafter, the City will resume payment of Program Grants to Developer in accordance with the Economic Development Program Agreement,as amended). The City waives all other claims against Developer for recovery of all or any part of the Reimbursement Payment. S. After acceptance of the Streetscape Improvements by the City in accordance with Section B, Developer's sole obligations pursuant to this Agreement are the obligations under the maintenance bond provided to the City pursuant to Section F(ii). T. This Agreement shall terminate for all purposes and shall be of no further force and effect on the Ten Year Anniversary,unless extended pursuant to Section P(iii);provided,however, if the Reimbursement Payment has been triggered under Section P prior to the Ten Year Anniversary, the City's remedies under Sections P, Q and R shall survive termination until the City recovers the Reimbursement Payment. U. Developer acknowledges that in accordance with Chapter 2270 of the Texas Government Code, the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and(2)will not boycott Israel during the term of the contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this contract, Developer City of Fort Worth,Texas Enhanced Community Facilities Agreement with City Participation-Streetscape Improvements for East Exchange Avenue Between North Main Street and Packers Avenue CFA Official Release Date:01.22.2017 Page 10 of 24 certifies that Developer's signature provides written verification to the City that Developer:(1) does not boycott Israel;and(2) will not boycott Israel during the term of the contract. V. Any notices,certifications,approvals,or other communications required to be given under this Agreement(a"Notice") shall be given in writing addressed to the party to be notified at the address set forth below and shall be deemed given: (i) when the Notice is delivered in person to the person to whose attention the Notice is addressed; (ii)when received if the Notice is deposited in the United States Mail, certified or registered mail, return receipt requested,postage prepaid;and(iii)when the Notice is delivered by Federal Express,UPS, or another nationally recognized courier service with evidence of delivery signed by any person at the delivery address. If any date or period provided in this Agreement ends on a Saturday, Sunday, or legal holiday,the applicable period for calculating the notice shall be extended to the first business day following the Saturday,Sunday,or legal holiday. For the purpose of giving any Notice, the addresses of the parties are set forth below. The parties may change the information set forth below by sending Notice of such changes to each other as provided in this section. To the City: City of Fort Worth,Texas 200 Texas Street Fort Worth,Texas 76102 Attn: City Manager City of Fort Worth, Texas 200 Texas Street Fort Worth,Texas 76102 Attn: Planning and Development Director City of Fort Worth,Texas Enhanced Community Facilities Agreement with City Participation-Streetscape Improvements for East Exchange Avenue Between North Main Street and Packers Avenue CFA Official Release Date:01.22.2017 Page 11 of 24 To Developer: Fort Worth Heritage Development, LLC Attn: Craig Cavileer 13191 Crossroads Parkway North 6th Floor City of Industry, CA 91746 With a copy to: Majestic Realty Co. Mike Durham,Chief Financial Officer m durh am Cis maj esti crealty.coin To Tax Increment Reinvestment Zone No. 15 (for purposes of Section P, only) Board of Directors Stockyards/Northside TIF Attn: Michael Henning, TIF Administrator 1150 South Freeway Fort Worth,Texas 76104 With a copy to: Robert Sturns,Director Economic Development Department 1150 South Freeway Fort Worth,TX 76104 W. Developer may at any time assign,transfer or otherwise convey�ny of its rights or obligations under this Agreement to a financial institution or other lender for purposes of granting a security interest in the Project and/or the Reimbursement Payment without the consent of the City Council,provided that Developer and the financial institution or other lender first execute a written agreement with the City in substantially the same form as that attached hereto as Exhibit D, together with such other terms and conditions as may be agreed by the City, Developer and the financial institution or other lender with respect to such security interest. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK City of Fort Worth,Texas Enhanced Community Facilities Agreement with City Participation-Streetscapeimprovements for East Exchange Avenue Between North Main Street and Packers Avenue CFA Official Release Date:01.22.2017 Page 12 of 24 Cost Summary Sheet Project Name: Streetscape Improvements for East Exchange Avenue Between North Main Street and Packers Avenue CFA No.: CFA-18-0136 City Project No.: 101782 Items Developer's Cost City's Cost Total Cost A. Water and Sewer Construction 1. Water Construction $ $ 2.Sewer Construction $ - $ Water and Sewer Construction Total $ $ - $ B. TPW Construction 1.Street $ - $ 3,399,000.00 $ 3,399,000.00 2.Storm Drain $ - $ - 3.Street Lights Installed by Developer $ - $ 375,000.00 $ 375,000.00 4. Signals $ - $ - $ - TPW Construction Cost Total $ - $ 3,774,000.00 $ 3,774,000.00 Total Construction Cost(excluding the fees): $ $ 3,774,000.00 $ 3,774,000.00 i.onsrrumon rees: C. Water/Sewer Inspection Fee(2%) $ $ $ D. Water/Sewer Material Testing Fee(2%) $ $ $ Sub-Total for Water Construction Fees $ $ $ - E. TPW Inspection Fee(4%) '$ V$ 135,960.00 $ 135,960.00 F. TPW Material Testing(2%) $ �$ 67,980.00 $ 67,980.00 G. Street Light Inspsection Cost $ $ 15,000.00 $ 15,000.00 H. Signals Inspection Cost $ $ - $ - J.Civil/Geotechnical Engineering&Survey(209,o) $ �$ - $ - TPWConstruction Fees Subtotal $ $ 218,940.00 $ 218,940.00 Total Construction Fees $ $ 218,940.00 $ 218,940.00 TOTAL PROJECT COST $ - $ 3,992,940.00 $ 3,992,940.00 Financial Guarantee Options,choose one Amount Choice Bond=100.1/0 $ 3,774,000.00 X Completion Agreement=100%/Holds Plat $ 3,774,000.00 Cash Escrow Water/Sanitary Sewer=125% $ Cash Escrow Paving/Storm Drain=125% $ - Letter ofCredit=125%w/2yrexpiration period $ 4,717,500.00 City of Fort Worth,Texas Enhanced Community Facilities Agreement with City Participation-Streetscape Improvements for East Exchange Avenue Between North Main Street and Packers Avenue CFA Official Release Date:01.22.2017 Page 13 of 24 The costs stated herein may be based upon construction estimates rather than actual costs. The City's portion of inspection and material testing fees are directly allocated to the City's accounts for charges and does not reimburse the Water Inspection and Material Testing Fees to the Developer. IN TESTIMONY WHEREOF,the City of Fort Worth has caused this instrument to be executed in quadruplicate in its name and on its behalf by its Assistant City Manager, attested by its City Secretary,with the corporate seal of the City affixed, and said Developer has executed this instrument in quadruplicate,effective as of the date subscribed by the City's designated City Manager. [Signatures on following page] City of Fort Worth,Texas Enhanced Community Facilities Agreement with City Participation-Streetscape Improvements for East Exchange Avenue Between North Main Street and Packers Avenue CFA Official Release Date:01.22.2017 Page 14 of 24 CITY OF FORT WORTH DEVELOPER: yesus T. Chqua Jesus J.Chapa(Mar 20,2019) FORT WORTH HERITAGE Jesus J. Chapa DEVELOPMENT,LLC, Assistant City Manager a Texas limited liability company Date: Mar20,2019 By: Majestic-Stockyards Investor, LLC, Recommended by: a Delaware limited liability company, its managing member IN791-e stwlif Robert Sturns(Mar20,2019) BY Majestic Realty Co., Robert Sturns a California corporation, Director,Economic Development Department as duly authorized agent for the Manager of Majestic-Stockyards Investor, LLC agent Evelyn Robe (Mar 20,2019) Evelyn RobertsrK4 Contract Compliance Specialist By:Edw„dekosk.,r.,m,,m2a=9, Planning and Development Department Name: Edward P. Roski Jr. Its: President/Chairman of the Board Approved as to Form &Legality: Date: Mar 20,2019 %CLGKAy'U 29.. %VLGC:I^RGKBi1i Richard A.McCracken(Mar 20,2019) Richard A. McCracken Assistant City Attorney M&C No. C-27995 ATTEST: (Only if required by Developer) Date: 11/15/16 RT VVI''` Form 1295: 2016-129143 � �{�� . .• �" , ]+ ATTEST: �:' S Signature >- Name: <Name? R91-0 7 MaryJ.Kayser(Mar 20, 19) ••. .' Mary J. Kayser/Ronald Go es •" �.� City Secretary/Assistant City e ry City of Fort Worth,Texas Enhanced Community Facilities Agreement with City Participation-Streetscape Improvements for Eastrtna,,,Avenue Between North Main Street and Packers Avenue CFA Official Release Date:01.22.2017 AL RECORD Page 15 of 24 CITY SECRETARY Contract Compliance Manager.- By anager.By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. --77��,��� nL6dIZG� ��,e 711eia e Scarlett Morales(Mar 20,20191 V Name: Janie S. Morales Title: Development Manager City of Fort Worth,Texas Enhanced Community Facilities Agreement with City Participation-Streetscape Improvements forrF 1.REC®�� Avenue Between North Main Street and Packers Avenue hA CFA Official Release Date:01.22.2017 Y SECRETARY Page 16 of 24 WORTH,TX Check items associated with the project being undertaken; checked items must be included as Attachments to this Agreement Included Attachment Z' Location Map L Exhibit A:Water Improvements lQ Water Cost Estimate Exhibit A-1: Sewer Improvements q Sewer Cost Estimate ® Exhibit B: Paving Improvements Paving Cost Estimate Exhibit B-1: Storm Drain Improvements Storm Drain Cost Estimate Exhibit C: Street Lights and Signs Improvements ® Street Lights and Signs Cost Estimate (Remainder of Page Intentionally Left Blank) City of Fort Worth,Texas Enhanced Community Facilities Agreement with City Participation-Streetscape Improvements for East Exchange Avenue Between North Main Street and Packers Avenue CFA Official Release Date:01.22.2017 Page 17 of 24 Exhibit D CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF CERTAIN RIGHTS UNDER ENHANCED COMMUNITY FACILITIES AGREEMENT—STREETSCAPE IMPROVEMENTS BETWEEN CITY OF FORT WORTH AND FORT WORTH HERITAGE DEVELOPMENT, LLC (CITY SECRETARY CONTRACT NO. ) This CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF ENHANCED COMMUNITY FACILITIES AGREEMENT — STREETSCAPE IMPROVEMENTS (this "Consent") is entered into by and among the CITY OF FORT WORTH ("City"), a home rule municipal corporation organized under the laws of the State of Texas; and FORT WORTH HERITAGE DEVELOPMENT', LLC ("Developer"), a Texas limited liability company; and COMERICA BANK("Lender"). RECITALS The City, Developer and Lender hereby agree that the following statements are true and correct and constitute the basis upon which the parties have entered into this Consent: A. The City and Developer previously entered into that certain Enhanced Community Facilities Agreement— Streetscape Improvements dated as of 12019 (the "Streetscape ECFA") pursuant to which Developer agreed to construct certain Streetscape infrastructure and the City agreed to reimburse Developer for certain costs, as more specifically outlined in the Streetscape ECFA. B. Section W of the Streetscape ECFA allows Developer to assign its rights and obligations under the Streetscape ECFA (including Developer's right to receive the Streetscape ECFA Payment)to a financial institution or other lender for purposes of granting a security interest in the Project and/or the Streetscape ECFA Payment, as defined therein, to such financial institution or other lender, without the approval of the City Council, provided that Developer and the financial institution or other lender first execute a written agreement with the City governing the rights and obligations of the City, Developer, and the financial institution or other lender with respect to such security interest. C. Developer wishes to obtain a $16,500,000.00 loran from Lender (the "Loan") in order to provide Developer with working capital to be used, in whole or in part, in connection with the Project. As security for the Loan, certain agreements between Developer and Lender governing the Loan and dated , 2019, including, but not limited to, a Credit Agreement, a Draw-To Note and a Security Agreement (collectively, the "Loan Documents") require that Developer collaterally assign to Lender all rights of Developer to receive payment of the Streetscape ECFA Payment under the Streetscape ECFA until such time as Developer has fully satisfied all duties and obligations set forth in the Loan Documents that are necessary to discharge Lender's security interest in the Streetscape ECFA Payment (the "Assignment"). D. The City is willing to consent to the Assignment specifically in accordance with the terms and conditions of this Consent. SMRH:485727541.2 -1 g- AGREEMENT 1. The City, Developer and Lender hereby agree that the recitals set forth above are true and correct and form the basis upon which the City has entered into this Consent. 2. The City hereby consents to the Assignment at the request of Developer and Lender solely for the purpose of Lender's securing the Loan pursuant to and in accordance with the Loan Documents. Notwithstanding such consent, the City does not adopt, ratify or approve any of the particular provisions of the Loan Documents and, unless and to the extent specifically acknowledged by the City in this Consent, does not grant any right or privilege to Lender or any assignee or successor in interest thereto that is different from or more extensive than any right or privilege granted to Developer under the Streetscape ECFA. 3. The City shall provide copies to Lender of all notices provided to Developer pursuant to the Streetscape ECFA, including notice of breach or default by Developer, addressed to the following, by certified mail,postage prepaid, or by hand delivery: Jonathan R. Ward, Vice President-Western Market Commercial Real Estate Comerica Bank 611 Anton Blvd., 4th Floor Costa Mesa, CA 92626 or such other address(es) as Lender may advise City from time to time in writing. 4. Unless and until Lender notifies the City that Developer has repaid the Loan in full and has fully satisfied all duties and obligations set forth in the Loan Documents that are necessary to discharge Lender's security interest in the Streetscape ECFA Payment, the City shall, notwithstanding any contrary or conflicting instructions the City may receive from Developer with respect thereto, make the Streetscape ECFA Payment, as and when due under the Streetscape ECFA, only by wire transfer to Developer's blocked account maintained with Lender (the "CFA Deposit Account") in strict accordance with the wiring instructions attached hereto as Exhibit A. 5. If Developer fails to cure any default under the Streetscape ECFA, the City agrees that Lender, its agents or designees shall have an additional thirty (30) calendar days or such greater time as may specifically be provided under the Streetscape ECFA to perform any of the obligations or requirements of Developer imposed by the Streetscape ECFA and that the City will accept Lender's performance of the same as if Developer had performed such obligations or requirements; provided, however, that in the event such default cannot be cured within such time, Lender, its agents or designees, shall have such additional time as may be reasonably necessary if within such time period Lender has commenced and is diligently pursuing the remedies to cure such default. Nothing contained herein shall obligate Lender to cure any default by Developer under the Streetscape ECFA. 6. If at any time Lender intends to exercise any of its remedies under the Loan Documents with respect to the Assignment, Lender shall first provide written notice to the City of such intent (a "Notice"). Lender shall copy Developer on the Notice and deliver such Notice to Developer by both first class and certified mail return receipt concurrent with its transmittal of the SMRH:485727541.2 -19- Notice to the City, and Lender shall represent in the Notice that it has done so. If, on the date the City receives the Notice, Developer is entitled to payment by the City of the Streetscape ECFA Payment in accordance with the Streetscape ECFA, the City shall pay the Streetscape ECFA Payment directly to Lender at the address for Lender set forth in Section 3 above, rather than making the Streetscape ECFA Payment to Developer. Lender shall have no obligation to assume the obligations of Developer under the Streetscape ECFA. However, if additional actions by Developer pursuant to the Streetscape ECFA are required in order to be entitled to the Streetscape ECFA Payment, Lender understands and agrees that the City shall not be bound to pay Lender all or any portion of the Streetscape ECFA Payment pursuant to the Streetscape ECFA unless Lender enters into a written agreement with the City to assume and be bound by all covenants and obligations of Developer under the Streetscape ECFA. If Lender enters into an assumption agreement with the City, then City shall make the Streetscape ECFA Payment in accordance with the Streetscape ECFA directly to Lender at the address for Lender set forth in Section 3 above, rather than making such Streetscape ECFA Payment to Developer. 7. Any Notice to be delivered by Lender to the City and/or Developer pursuant to Section 6, above, shall be addressed as follows: City: Developer: City of Fort Worth Fort Worth Heritage Development, LLC Attn: City Manager Exchange Building 1000 Throckmorton 131 East Exchange Ave., Suite 212 Fort Worth, TX 76102 Fort Worth, TX 76164 with copies to: with a copy to: The City Attorney and Housing & Economic Majestic Realty Co. Development Director at the same address Attn: Craig Cavileer, Executive Vice President 13191 Crossroads Parkway N., Suite 600 City of Industry, CA 91746 8. In the event of any conflict between this Consent and the Streetscape ECFA or any of the Loan Documents, this Consent shall control. 9. This Consent may not be amended or modified except by a written agreement executed by all of the parties hereto. Notwithstanding anything to the contrary in the Loan Documents, an amendment to any of the Loan Documents shall not constitute an amendment to this Consent or the Streetscape ECFA. 10. Once Developer has fully satisfied all duties and obligations set forth in the Loan Documents that are necessary to discharge Lender's security interest in the Streetscape ECFA and such security interest is released, Lender shall provide written notice to the City that Lender has released such security interest, in which case this Consent shall automatically terminate. 11. This Consent shall be construed in accordance with the laws of the State of Texas. Venue for any action arising under the provisions of this Consent shall lie in state courts located SMRH:485727541.2 -20- in Tarrant County,Texas or in the United States District Court for the Northern District of Texas, Fort Worth Division. Capitalized terms used but not specifically defined in this Consent shall have the meanings ascribed to them in the Streetscape ECFA. 12. This written instrument contains the entire understanding and agreement between the City,Developer and Lender as to the matters contained herein. Any prior or contemporaneous oral or written agreement concerning such matters is hereby declared null and void to the extent in conflict with this Consent. 13. Developer waives all claims against the City for payment of the Streetscape ECFA Payment to Lender in accordance with Section 4 and Section 6. 14. This Consent shall be effective on the later date as of which all parties have executed it. This Consent may be executed in any number of duplicate originals and each duplicate original shall be deemed to be an original. The failure of any party hereto to execute this Consent, or any counterpart hereof, shall not relieve the other signatories from their obligations from their obligations hereunder. EXECUTED as of the last date indicated below: [SIGNATURES IMMEDIATELY FOLLOW ON NEXT PAGE] SMRH:485727541.2 -21- CITY OF FORT WORTH: APPROVED AS TO FORM AND LEGALITY: By: By: Name: Name: Assistant City Manager Assistant City Attorney Date: M&C: none required FORT WORTH HERITAGE DEVELOPMENT,LLC, a Texas limited liability company By: Majestic - Stockyards Investor, LLC, a Delaware limited liability company, its managing member By: Edward P. Roski, its authorized representative Date: Approved by: Hickman Investments, Ltd., as an additional Member in Fort Worth Heritage Development, LLC By: BBH GENPAR, LLC, a Texas limited liability company and its general partner: By: Brad Hickman Executive Vice President Date: COMERICA BANK By: Jonathan Ward its Vice President-Western Market SMRH:485727541.2 -22- SMRH:485727541.2 -23- Exhibit A Wiring Instructions for CFA Deposit Account Comerica Bank 611 Anton Blvd. Costa Mesa,CA 92626 Attn: Teri Kaneen 714-424-3839 Wire Department 888-242-0579 Routing Number: 121137522 Account Number: 1895167326 Customer Name: Fort Worth Heritage Development,LLC SMRH.485727541.2 -24- a L O >b Zl VM OS z w f- a3 3M H �� Z J W W Mwo 'lOVHOS z SpMUE W by U O O Z W = W Z \ SAVH Q N Lu / W O NO1dW H O O Z - L1 O \ IO = L�L J Y /1 O /� JNIOd Oa H N A110 SAIINof Q V, of dWnHo = Z Sa3NOVd U W W U) M W � OD � � � w z Z Nn HIVO O OIl < MEPGE ® Oa3 WOO `J � m G00 LL X Z = Z LL W U 0 ESO\S o = SI113 Q Z r m @ X NO snOH U O �— = XU U JQ 014 PR ON EEo N _ m v w 1NI U) W W O OLLJ goss ssoa U O 33I W O SOad C J LL OI n33a Z \O W W RE JG a N N OONII v' QU) > ° Inoc) •) O 1 aVW o o r- v o Z o 8V3d N N N 1nN1S HO s swnl O Q J U NIhOI U 2 LL r ,� 31a1 d N N N O O V-V 3Nn HOiVh C 1U Y p 2'F tt as Z � - 4' fY o � o O o > W U- m as> Q ¢qa uj Q CDZ • I C) Q n U) I . 1 as Q dyo'W • /11Y m Y<QF /' U m $�C=3dAt O wria • _ z Z& gi.06 • CD W a KZ •�I• * • - T1 Q X -- o - w —————— ——— (nn�x�n W U) i - Z qa Q Q tiw m.-Uj2o Y D F (1 y U — R d W O N T F O� � ——— -it^•-_cam. o� WN LL __ _a_ •_,. 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Fort Worth Heritage Development TIF APPLICATION 01 Estimate Date:04.03.2019 47 a Exchange Ave.Improvements 49 50 1.1 Hard Costs: ss Sanitary Sewer Im ovements no work anticipated 52 Water Improvements no work anticipated 53 Paving/Street SI ns Improvements 3150 000 54 Storm Drain Improvements no work anticipated ss Street Llithts Improvements 375 000 56 Landscape&Irrigation Improvements 249,000 57 so st Subtotal: $ 3,774,000 60 62 L2 Ins ection Fees(City of Fort Worth: 62 Water Sewer Inspection Fee 2.00% Water Dept. 93 Water Sewer Material Testing Fee 2.00% S Water Dept. 64 Paving/Street Signs Inspection Fee 4.00% S 126,000 TPW 6s Paying/Street Signs Materials Testing Fee 2.00% 63,000 TPW 66 Storm Drain Inspection Fee 4.00% 5 TPW 67 Storm Drain Inspection Fee 2.00% TPW be Street L is ns ection Fee a 00 5000 TPW 69 >n 71 subtotal: $ 204,000 72 73 76 Total EstbnatedStreetscapeCIA 12A+2.2/: $ 3,978,000 75 76 2.3 Other Soft Costs: 77 CFA Application Fee 1750 78 Engineering 10.00% Is 377 400 Includes LandscoM Signage and Technology Design 96 Construction Manager Agent 6.00% IS 226,440 Commerce Constniction Co.,LP 79 Construction ContingencY 5.00% Is 188,700 so M 82 Subtotal: $ 794,290 as u 2.4 Develooer Costs: as Pedestrian Safety Wa Indio Perimeter Fence 2.50% IS �1174 By Developer's LiabilityInsurance 1.00%Deve er's Contin en 5,00% a9 9a 92 Subtotal: $ 320,790 92 93 94 Total Estlinated Other and Davalapar Soft Costs(2.3+L4): $ 1,1.35,080 !a 96 97 Tow 1ltita "d afietixoMe Costs: $ 9,093,080 �i lbcf� o#� ,� VP 'PI-4, 3)3) 13111 131 11 �k_,r' Tar App s*.&do--I'MUS CQ Am► &er(G 202