HomeMy WebLinkAboutContract 37066AMENDMENT NO. I TO
ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
(CITY SECRETARY CONTRACT N0.36482)
This AMENDMENT NO. 1 TO ECONOMIC DEVELOPMENT PROGRAM
AGREEMENT ("Amendment") is made and entered into by and between the CITY
OF FORT WORTH ("City"), a home rule municipal corporation organized under the
laws of the State of Texas, and MUSEUM PLACE HOLDINGS, LLC ("Developer"),
a Texas limited liability company.
The following introductory provisions are true and correct and for the basis of this
Amendment:
A. As of January 14, 2008 the City and Developer entered into that certain Economic
Development Program Agreement on file in the City Secretary's Office as City Secretary
Contract No. 36482 (the "Agreement"). Under the Agreement, Developer agreed,
among other things, to construct a mixed -used development (the "Development", as
more specifically defined in the Agreement) on certain real property located in the City's
cultural district, which has been identified by the Comprehensive Plan as a regional
mixed -use growth center where public incentives could effectively be used as a catalyst
for beneficial long-term planned development in the City. In return, the City agreed to
pay Developer certain Program Grants as authorized by Chapter 380 of the Texas Local
Government Code and outlined in the Agreement.
B. Developer is required to construct that portion of the Development identified and
defined in the Agreement in Phase I, and may, at Developer's option, construct additional
Phases to the Development, as more specifically set forth in the Agreement. The
Agreement requires that Phase I be completed by June 30, 2008. Due to unanticipated
delays in commencing construction of the Development, Developer has requested that the
deadline for completion of Phase I be extended to December 31, 2008. Because of the
public benefits that the City will receive from the Development, as outlined in the
Recitals of the Agreement, the City is willing to amend the Agreement in order to address
Developer's request.
C. Developer has requested that for purposes of calculating the Program Grants
payable pursuant to the Agreement, the Fort Worth Construction Commitment and the
M/WBE Construction Commitment for the Development be measured on a cumulative
basis rather than on a Phase -by -Phase basis. Because of the public benefits that the City
will receive from the Development, as outlined in the Recitals of the Agreement, the City
is willing to amend the Agreement in order to address Developer's request, but only if
Developer completes all four (4) Phases of the Development, as more specifically set
Page I
Amendment No. 1 to CSC No. 36482
Economic DevelopxneatProgram Agreement with Museum Place Holdings, LLC
D. The Agreement currently prohibits Developer from assigning the Agreement to a
non -Affiliate without prior City Council approval. Developer has requested that the
Agreement be amended to permit Developer to assign the Agreement as partial security
to lenders providing financing toward the Development without prior approval of the City
Council. The City is willing to amend the Agreement in order to address Developer's
request, as more specifically set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the City and Developer hereby agree as
follows:
1. Section 2 of the Agreement (Definitions) is hereby amended to change the
definition of Phase I Completion Date from June 30, 2008 to December 31, 2008.
2. Section 5.2.1.2 of the Agreement (Fort Worth Construction Cost Spending) is
hereby amended to add the following paragraph to the end of the first paragraph:
Notwithstanding anything to the contrary in this Agreement, if (i)
Developer completes all four (4) Phases by the respective Completion
Deadline for each Phase, and (ii) based on the Certificates of Completion
issued by the City pursuant to Section 5.1 for Phase I, Phase II, and Phase
III, the City has verified that Developer expended or caused to be
expended with Fort Worth Companies at least thirty percent (30%) of all
Hard Construction Costs for Phase I, Phase II, and Phase III, in the
aggregate, then for purposes of calculating Program Grants associated
with Phase 1, Phase II, and Phase III that are payable in Program Years
subsequent to the year as of which all four (4) Phases were Substantially
Complete, as verified in the Certificates of Completion issued by the City
for all four (4) Phases, the Fort Worth Construction Percentage will equal
twenty percent (20%). Developer understands and agrees that this
paragraph applies only to Program Grants payable in Program Years
subsequent to the year as of which all four (4) Phases were Substantially
Complete and shall not be construed to grant Developer any kind of credit
or additional payment from the City on account of a reduction or
reductions to any previous Program Grant payments due to Developer's
failure to meet the Fort Worth Construction Commitment for Phase 1,
Phase II, or Phase III individually.
3. Section 5.2.1.3 of the Agreement (Fort Worth M/WBE Construction Cost
Spending) is hereby amended to add the following paragraph to the end of the first
paragraph-�
l _ �7den
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Amendment No. 1 to CSC No, 36482
Economic-Devetopment Program Agreement with Museum Place Holdings, LLC
Notwithstanding anything to the contrary in this Agreement, if (i)
Developer completes all four (4) Phases by the respective Completion
Deadline for each Phase, and (ii) based on the Certificates of Completion
issued by the City pursuant to Section 5.1 for Phase I, Phase II, and Phase
III, the City has verified that Developer expended or caused to be
expended with Fort Worth Certified M/WBE Companies at least twenty.
five percent (25%) of all Hard Construction Costs for Phase I, Phase II,
and Phase III, in the aggregate, then for purposes of calculating Program
Grants associated with Phase I, Phase II, and Phase III that are payable in
Program Years subsequent to the year as of which all four (4) Phases were
Substantially Complete, as verified in the Certificates of Completion
issued by the City for all four (4) Phases, the M/WBE Construction
Percentage will equal twenty percent (20%). Developer understands and
agrees that this paragraph applies only to Program Grants payable in
Program Years subsequent to the year as of which all four (4) Phases were
Substantially Complete and shall not be construed to grant Developer any
kind of credit or additional payment from the City on account of a
reduction or reductions to any previous Program Grant payments due to
Developer's failure to meet the NVWBE Construction Commitment for
Phase I, Phase II, or Phase III individually.
4. The first sentence of Section 5.2.4 of the Agreement (No Offsets) is hereby
deleted in its entirety and replaced with the following sentence:
Subject to the second paragraph of Section 5.2.1.3, a deficiency in
attainment of one commitment may not be offset by exceeding attainment
of another commitment.
5. Section 10 of the Agreement (Assignment and Successors) is hereby amended to
add the following sentence immediately after the first sentence of such Section 10:
In addition, Developer may assign its rights and obligations under
this Agreement to a financial institution or other lender for purposes of
granting a security interest in the Development and/or Development
Property without the approval of the City Council, provided that (i) the
City is first provided with copies of all loan agreements, deeds of trust,
and other documents between Developer and the financial institution or
other lender relating to such security interest and (ii) 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.
Page 3 .. _.�
Amendment No. 1 to CSC No. 36482
Economic Development Program Agreement with Museum Place Holdings, LLC
6. All terms in this Amendment that are capitalized but not defined shall have the
meanings assigned to them in the Agreement.
7. All terms and conditions of the Agreement that are not expressly amended
pursuant to this Amendment shall remain in full force and effect.
EXECUTED as of the last date indicated below:
CITY OF FORT WORTH:
Tom Higgins
-Astiiag Assistant City Manager
Date:
�Q
APPROVED AS TO FORM AND LEGALITY:
By: / o
Peter Vaky
Assistant City Attorney
M&c: if - Z2�a e`I
`�U �Vrcl��•n� �' ����•
MUSEUM PLACE HOLDINGS,
LLC:
Manager
Attested. �yo
lviarty Hendry
City 5CCret�A$.,-.
Page 4
Amendment No. 1 to CSC No. 36482
Economic Development Program Agreement with Museum Place Holdings, LLC
Page 1 of 2
•_ • •
.' • • • • . •
COUNCIL ACTION: Approved on 4/29/2008
DATE: Tuesday, April 29, 2008
LOG NAME: 17MUSPLCAMEND
SUBJECT:
Authorize Execution of Amendment to City Secretary Contract No.
Program Agreement with Museum Place Holdings, LLC, Extending
Project and Clarifying Construction Spending Commitments
REFERENCE NO.: **C-22784
36482, Economic Development
Phase I Completion Date of the
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute the attached amendment to
the Economic Development Program Agreement with Museum Place Holdings, LLC (City Secretary
Contract No. 36482).
DISCUSSION:
On May 15, 2007, the City Council authorized execution of an Economic Development Program Agreement
for the construction of a Mixed Use development in Central Fort Worth (M&C C-22120).
Because of delays with receiving approval for head -in parking on the street, the Developer was forced to
delay work associated with the on -street parking. The delay has prompted the Developer to request that
the deadline for completion of Phase I be changed from June 30, 2008 to December 31, 2008.
The Developer has also requested that the achievement of Fort Worth and Fort Worth M/WBE construction
commitments be calculated cumulatively with each phase. Staff recommends that this be allowed so long
as all phases of the project are completed.
The Developer has requested that it have the ability to assign its rights and obligations under the agreement
to a financial institution or lender for the purposes of granting a security interest in the development and/or
development property without the approval of City Council. Staff recommends that this be allowed upon the
following conditions being met: i) the City is provided with copies of all loan agreements, deeds of trust, and
other documents relating to the security interest and ii) Developer and the lender execute an agreement
with the City governing the rights and obligations of the City, Developer, and financial institution with respect
to the security interest.
The attached amendment will 1) revise the completion deadline of Phase I of the development to December
31, 2008; 2) revise the calculation of the Fort Worth and Fort Worth M/WBE construction commitments to
be cumulative for the entire project, subject to all phases being completed; and 3) allow the Developer to
assign its rights and obligations to a lender for granting a security interest subject to meeting the conditions
outlined above.
Otherwise, the structure and terms of the Agreement will remain the same.
This project is in COUNCIL DISTRICT 7.
http://apps.cfwnet.org/council�acket/Reports/mc�rint.asp 5/8/2008
Page 2 of 2
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that this action will have no material impact on City funds.
TO Fund/AccountlCenters
FROM Fund/Account/Centers
Submitted for City Manager's Office b� Tom Higgins (6140)
Originating Department Head: Jay Chapa (5804)
Additional information Contact: iVlark Foiden (8634)
http://apps.cfwnet.org/council�acket/Reports/mc�rint.asp 5/8/2008