HomeMy WebLinkAboutContract 43997/
CITY SECR�'i� ,� �, �
CONl'Ri4GT �o '? � �
ESCROW AGREEMENT
by and among
Southwest Bank, the Radler Foundation and the City of Fort Worth
STATE OF TEXAS §
COUNTY OF TARRANT §
This Esci•ow Agreement ("Escrow Agreement") is between SOUTHWEST BANK,
("Escrow Agent") and the following persons, who are hereinafter collectively referred to as the
"Pai-ties," or singly as a "Party":
The Radler Foundation ("Foundation"), a Texas 501(c)(3) organization, and
City of Fort Worth ("City"), a home rule municipal corporation of the State of Texas within
Tai7•ant, Denton, Parker and Wise counties, Texas.
NOW, THEREFORE, for value received, the receipt and sufficiency of which is hereby
acicnowledged, SOUTHWEST BANK, and the Parties hereby agree as follows:
1. The subject matter of this Escrow Agreement is the following:
Up to $500,000 (the "Escrow Amount"), which will be deposited with Escrow Agent
in one or moi•e deposits after the date hereof as part of the Forest Park Pool Grant
dated December 11, 2012 between the Parties ("Grant").
2. With respect to this Escrow Agreement, the Escrow Agent is directed as follows:
To hold the Escrow Amount in a non-interest bearing account until the entire
amount is paid out pursuant to the terms of this Escrow Agreement, or until directed
to do otherwise in a writing signed by all Parties and the Escrow Agent.
3. The Escrow Agent shall not receive compensation for its services under this Escrow
Agreement. However, Escrow Agent shall be reimbursed for any out of pocket expenses, and any
legal fees, court costs, or other expenses incui-�ed in performing its obligations under this Escrow
Agreement. The Parties will pay such fees and expense reimbursements within ten (10) days of
receipt of an invoice from Escrow Agent. Such reimbursement requests would include normal
bank fees, which Escrow Agent may waive at Escrow Agent's sole discretion, and attorneys' fees
in the event of an issue between the Parties that affected the Escrow Agent's duties under this
Agreement.
4. The Parties have advised the Escrow Agent that the Escrow Amount shall be used
for the following:
Repair of City's public swimming pool located at 2850 Parlc Place Avenue, Fort
Worth, Texas.
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Escrow Agreement 2012-12-14 Southwest Bank
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With respect to the funds for the use described above, the Escrow Agent shall deliver such funds
upon the delivery to the Escrow Agent of a Funding Request substantially in the form of Exhibit
"A" attached hereto certified by all Parties. All funds withdrawn from the Escrow Account shall,
upon the direction of a11 Parties, be sent by wire transfer to a designated third party who is entitled
to receive such funds as set forth in the Funding Request or transferred to a Party's account either
a.) maintained with the Escrow Agent at its banking offices in Fort Worth or b.) maintained with
another bank designated by the Party.
5. The Escrow Agent is not a party to, and is not bound by, or charged with notice of
any of the underlying agreements, arrangements or understandings between Parties, and the Escrow
Agent has not assumed any obligation or liability under any of such agreements, arrangements or
understandings.
6. The Escrow Agent is acting only as a depository for the subject matter of the Escrow
Agreement. The Escrow Agent is not responsible or liable for, and makes no representations with
regard to: (a) the sufficiency, coi-�ectness, genuineness or validity of the subject matter of the
escrow, or any part thereof, or the form or execution thereof, or as to the identity or authority of any
person executing any document in connection with, or depositing the subject matter of this Escrow
Agreement; or (b) the validity, enforceability, legality or appropriateness of the underlying
documents, agreements, anangements or understandings between the Parties.
7. If the subject matter of the escrow includes any check, draft or other order for the
payment of money, or if in the performance of the Escrow Agreement the Escrow Agent receives a
check, draft or other order for the payment of money, the Escrow Agent shall deposit any such item
for collection and will not be responsible or accountable for the proceeds of any such item until
they are received by the Escrow Agent as collected funds. Any payment by the Escrow Agent
under this Escrow Agreement may, at the Escrow Agent's option, be made by bank check.
8. The Escrow Agent, in the performance of this Escrow Agreement, and in its dealings
with the Parties, shall be entitled to assume and rely upon the genuineness of any written notice,
request, waiver, consent, receipt, direction, authorization, power of attorney or other document
fuz-nished to the Escrow Agent, including without limitation, any Funding Request and/or closing
letter delivered to the Escrow Agent under Section 4 above, and the Escrow Agent shall have no
liability to the Par-ties, or any of them, and shall be fully protected and indemnified when acting or
relying in good faith upon any such document which the Escrow Agent believes to be genuine.
9. In the perfor�rnance of its duties under the Escrow Agreement, the Escrow Agent and
its agents, employees, representatives and attorneys: (a) shall have no liability of any kind to the
Parties except for the Escrow Agent's own gross negligence or intentional misconduct; and (b) may
seek the advice of legal counsel from time to time, at the Parties' expense, and shall incur no
liability and shall be fully protected in acting in accordance with the opinion or instructions of such
counsel.
10. The Parties, all individually and collectively, shall, to the extent allowed by law,
save, indemnify, defend and hold the Escrow Agent and its agents, employees, representatives and
attorneys harmless from and against all claims, causes of action and liabilities pertaining to, or
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Escrow Agreement 2012-12-14 Southwest Bank
arising from, this Escrow Agreement (excluding such claims, causes of action and liabilities arising
out of the Escrow Agent's own gross negligence or intentional misconduct), including without
limitation: (a) all attorneys fees, costs of court and costs of investigation incuned by the Escrow
Agent; (b) all damages of every type and nature, whether actual, direct, incidental, consequential,
punitive or exemplary; and (c) all claims and causes of action arising from the negligence or alleged
negligence of the Escrow Agent or its agents, employees, representatives and attorneys. As a
condition to making or bringing a claim for indemnification against the Parties, or any of them, the
Escrow Agent shall not be required to ha�e made any payment or incurred any expense in
conjunction with the claim, and, if sued, may immediately join all or any of the Parties as third-
party defendants to such suit for the purpose of asser-ting its indemnification rights.
11. If there is any disagreement or dispute (a) in connection with the Escrow Agreement
or the subject matter thereof including any dispute between any of the Parties, or (b) between the
Escrow Agent and any of the Parties, or (c) between any of the Parties and any person not a party of
the Escrow Agreement, or (d) in the event of adverse or inconsistent claims or demands upon, or
inconsistent instructions to, the Escrow Agent, or (e) if the Escrow Agent in good faith is in doubt
as to what action to take pursuant to the Escrow Agreement, the Esci•ow Agent may at its election
refuse to comply with any of such claims, demands or instructions, or refuse to talce any other
action pursuant to this Escrow Agreement, until: (i) the rights of all persons involved in the dispute
have been fully and finally adjudicated by a court of competent jurisdiction, or the Escrow Agent
has resolved any such doubts to its good faith satisfaction; or (ii) all disputes have been resolved
between the persons involved, and the Escrow Agent has received written notice thereof
satisfactory to it from all such persons. Without limiting the generality of the foregoing, the Escrow
Agent may at its election interplead the subject matter of this Escrow with a Court of competent
jurisdiction, or commence judicial proceedings for a declaratory judgment, and the Escrow Agent
shall be entitled to recover from the Parties, all collectively and individually, its attorney's fees and
costs in connection with any such interpleader or declaratory judgment action.
12. All notices or other communications pursuant to this Escrow Agreement shall be in
writing, and all such notices, as well as any payment or distribution under the Escrow Agreement,
or any delivery of the subject matter of the escrow, may be made by delivering such notice or
payment personally to the Escrow Agent or the appropriate Party or Parties, or by depositing the
same in the United States mail, postage prepaid, addressed to the Escrow Agent or the appropriate
Par-ty or Parties at their respective addresses as set forth below. Notwithstanding the foregoing, a
Funding Request and/or closing letter as provided in Section 4 above may be made by facsimile
transmission.
13. The Escrow Agent shall be entitled to receive or recover any payment,
compensation, reimbursement, or indemnification to which it is entitled out of the subject matter of
the escrow.
14. This Escrow Agreement and any other agreements attached as exhibits hereto
contain the complete agreement between the Escrow Agent and the Parties provided, however, the
terms of this Escrow Agreement shall control or supercede any inconsistent terms of any agreement
attached hereto as an exhibit. This Escrow Agreement may not be amended or modified except by
a writing executed by the Escrow Agent and all of the affected Parties. This Escrow Agreement
shall not be strictly construed against the Escrow Agent or any Party.
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Escro�v Agreement 2012-12-14 Southwest Bank
15. This Escrow Agreement shall be construed in accordance with the laws of the State
of Texas.
16. The obligations by the Parties to the Escrow Agent, including the payment of
compensation and the Parties' indemnity obligations pursuant hereto, shall be performable or
payable at the Escrow Agent's offices in Fort Worth, Tairant County.
17. To the extent that Escrow Agent is granted any right pursuant to this Escrow
Agreement, at its option or in the exercise of its good faith discretion, the Escrow Agent's good
faith shall be at all times presumed, and such presumption may only be rebutted by evidence
establishing a lack of good faith beyond a reasonable doubt.
18. The Escrow Agent may at any time terminate its obligations under this Escrow
Agreement by giving 30 days wi•itten notice to each of the Parties, although any such termination
shall not act to affect any right, obligation or duty by the Parties or Escrow Agent arising or
accruing prior to the effective date of such termination.
Executed this �_ day of December, 2012.
ESCROW AGENT:
SOUTHWEST BANK
Robert J. Molloy
Regional President
PARTIES:
THE RADLER FOUNDATION,
a Texas 501(c)(3) organization
a
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Pianta, Controller
The Radler Foundation
3131 West 7t�' Street, Suite 400
Fort Worth, Texas 76107
Federal Tax I.D. #26-4582178
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Escrow Agreement 2012-12-14 Soutli�vest Bank
CITY OF FORT WORTH, a home rule
municipal corporation of the State of Texas
located within Tat-�•ant, Denton Parker and Wise
counties, Texas
C
Susan Alanis
Assistant City Manager
City of Fort Woi�th
1000 Throckmorton Street
Fort Worth, Texas 76102
Federal Tax I.D. # � '7�i
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SSI�iA�9`T C11� ATT�RN�Y
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Escro�v Agreement 2012-12-14 Southwest Bank
EXHIBIT "A"
FUNDING REQUEST
TO: SOUTHWEST BANK
ATTN: Robert Molloy
Re: Escrow Agreement dated as of December , 2012 (the "Agreement") by and
among Southwest Bank ('Bscrow Agent"), The Radler Foundation ("Foundation")
and the City of Fort Worth ("City")
Date: , 20
1. This Funding Request is delivered to the Escrow Agent pursuant to Section 4 of the
Agreement. All tei�rns defined in the Agreement shall have the same meaning herein, except as
expressly stipulated otherwise herein.
2. Please be advised that the Parties wish to withdraw funds from the Escrow Account
in the amount of $ for the following putpose or purposes:
3. The Parties hereby certify to the Escrow Agent that:
a. all necessary authorizations and approvals, if any, contemplated for the
withdrawal of the funds from the Escrow Account as requested hereby have been duly obtained
and are in full force and effect; and
b. the proceeds of the requested withdrawal from the Escrow Account shall be
used solely for the putposes set forth in Section 2 above.
4. Please send the amount of the withdrawal from the Escrow Account requested
herein by wire transfer to [name and wiring instructions].
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4. Please deposit the amount of the withdrawal from the Escrow Account requested
herein in the Party's account maintained with Southwest Bank, Account No.
PARTIES:
THE RADLER FOUNDATION,
a Texas 501(c)(3) organization
Gail Andrae Pianta, Controller
The Radler Foundation
3131 West 7th Street, Suite 400
Fort Worth, Texas 76107
Federal Tax I.D. #26-4582178
CITY OF FORT WORTH, a home rule
municipal coiporation of the State of Texas
located within Tarrant, Denton Parker and Wise
counties, Texas
Susan Alanis
Assistant City Manager
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
Federal Tax I.D. #
M&C Review
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Official site af the City of �ort bVorth, Texas
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COUNCIL ACTION: Approved on 12/11/2012 - Ordinance Nos. 20534-12-2012 & 20535-12-2012
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DATE:
CODE:
12/11 /2012
G
REFERENCE
NO..
TYPE:
G-17766
NON-
CONSENT
LOG NAME:
PUBLIC
HEARING:
80FOREST PARK
POOL GRANT -
REPAIR
m
SUBJECT: Authorize Execution of a Grant Agreement with The Radler Foundation in an Amount Up
to $500,000.00 for Repairs to the Forest Park Pool, Authorize Transfer in the Amount of
$330,000.00 from the Capital Projects Reserve Fund to the Specially Funded Capital
Projects Fund and Adopt Appropriation Ordinances (COUNCIL DISTRICT 9)
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RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the execution of a grant Agreement with The Radler Foundation for the repair of the
Forest Park Pool;
2. Authorize the acceptance of a grant from The Radler Foundation in an amount up to $500,000.00
for the repair of the Forest Park Pool;
3. Adopt the attached appropriation ordinance increasing estimated receipts and appropriations in
the Capital Projects Reserve Fund in the amount of $330,000.00 from available funds;
4. Authorize the transfer in the amount of $330,000.00 from the Capital Projects Reserve Fund to the
Specially Funded Capital Projects Fund; and
5. Adopt the attached appropriation ordinance increasing estimated receipts and appropriations in
the Specially Funded Capital Projects Fund in the amount of $830,000.00 from available funds.
DISCUSSION:
The purpose of this Mayor and Council Communication (M&C) is to authorize the City Manager to
enter into a grant Agreement with The Radler Foundation in an amount up to $500,000.00 for repairs
to the Forest Park Pool and to authorize a transfer in the amount of $330,000.00 from the Capital
Projects Reserve Fund to the Specially Funded Capital Projects Fund. The total project budget for
repairs to the Forest Park Pool is in the amount of $830,000.00, which includes estimates for
mechanical and filtration repairs and overall project contingencies.
The Budget Office has identified the amount of $330,000.00 in the Capital Projects Reserve Fund for
the City's matching funds for the repairs to Forest Park Pool. On December 14, 2010, (M&C G-
17155) the City Council approved transferring the amount of $10,000,000.00 of excess fund balance
from the General Fund to the Capital Projects Reserve Fund for the purpose of funding high-priority
capital projects.
Forest Park Swimming Pool was originally built in 1922, as a fill and drain pool, without a filtration
system. A major renovation took place in 1967 which reconfigured the pool to its current shape,
added a new bathhouse, new piping and a filtration system. Another renovation completed in 1992
consisted of the reconstruction of the pool resulting in the addition of a zero depth entry, PVC liner,
vacuum sand filtration system, and stainless steel gutters.
In July 2010, the City was forced to close the pool due to the failure of the 18 year old pool liner that
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was installed in 1992. In Fiscal Year 2011, there were no swimming pools operated by the City of Fort
Worth (Sycamore Spray-Ground was open). In an effort to mitigate the closure of the pools, the City
entered into an Agreement with the YMCA of Metropolitan Fort Worth that allowed public access to
four YMCA pools during designated hours with payment of a nominal admission fee.
The closure of all seven City pools for the 2011 swim season resulted in a high level of public
concern for the absence of aquatic facilities operated by the City of Fort Worth and heightened the
awareness of City administrators, policy-makers and other community-based private entities of the
public's level of desire and interest for the provision of these services. One of the private community
based entities that expressed interest in working with the City to get a pool re-opened was The
Radler Foundation, a private not-for-profit foundation. Under the direction of the City Manager's
Office, and with support from the Office of the Mayor and the City Council District 9 Office, the Parks
and Community Services Department (PACS) was tasked with exploring the potential for a jointly
funded public-private cooperative effort that would result in a sufficient amount of repairs to re-open
the pool.
In anticipation of this possibility, the PACS secured design/professional services through the
Department of Transportation and Public Works/Architectural Services and Facilities annual
Agreement for preparation of construction documents for the repair of the Forest Park Pool. The City
and The Radler Foundation have agreed to fund the repair work on a 2/3 Foundation to 1/3 City
basis, up to the amount of $750,000.00. Any costs associated with the repair of the Forest Park Pool
in excess of $750,000.00 are to be funded by the City. The total project budget that is requested
under this M&C is $830,000.00, which includes $330,000.00 of Capital Projects Reserve Fund and
incorporates a percentage contingency to allow for any additional unforeseen costs that might occur
given the advanced age of the infrastructure. If cost savings are realized below $750,000.00, the
savings are to be allocated on a 2/3 Foundation and 1/3 City basis. Under the proposed grant
Agreement, the Foundation will deposit its funds into an escrow account, and the City will be able to
draw down from the account to be reimbursed for the Foundation's percentage of repairs as they
occur.
In addition to the grant from The Radler Foundation, other vendors have committed to contribute
professional and construction services to the project.
Forest Park Pool is located in COUNCIL DISTRICT 9.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that upon approval of the above
recommendations and adoption of the attached appropriation ordinance, funds will be available in the
current capital budget, as appropriated, of the Specially Funded Capital Projects Fund.
TO Fund/Account/Centers
2� C291 488100 809490205980
3)GC10 538070 013010001000
4&5
C291 472010 8094902059XX
3)GC10 472010 013010001000
5) C291 488100 809490205980
FROM Fund/Account/Centers
$500,000.00
$330,000.00
$330,000.00
$330,000.00
$500,000.00
� $830,000.00
C291 5VARIOUS 8094902059XX
Submitted for City Manager's Office bv:
Originating Department Head:
� $330,000.00
GC10 538070 013010001000
Susan Alanis (8180)
Richard Zavala (5704)
http://apps.cfwnet.org/council�acket/mc review.asp?ID=17752&councildate=l2/11/2012 12/28/2012
M&C Review
Additional Information Contact:
Scott E. Penn (5750)
ATTACHMENTS
80FOREST C291.doc
80FOREST GC10 .doc
http://apps.cfwnet.org/council�acket/mc review.asp?ID=17752&councildate=l2/11/2012
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12/28/2012