HomeMy WebLinkAboutContract 31549 ESCROW/PLEDGE AGREEMENT --! I t' :aECRETARi G1
CONTRACT NO. -La
THIS ESCROW/PLEDGE AGREEMENT (the "Agreement"), entered into as of
(SCh 3D, 2005, by and among 114 Partners, Ltd., a Texas Limited Partnership
(Developer), the City of Fort Worth, Texas a municipal corporation of Tarrant County,
Texas ("Fort Worth") and Republic Title of Texas, Inc., ("Escrow Agent") is to witness
the following:
WHEREAS, Developer and Fort Worth have entered into a Community Facilities
Agreement for Harriet Creek Ranch, Block 19, an addition to the City of Fort Worth,
Tarrant County, Texas (the "CFA"); and
WHEREAS, the CFA provides that Developer shall submit to Fort Worth
performance and payment bonds, cash deposits or other security acceptance to Fort
Worth (collectively, the "intended Security") for the purpose of guaranteeing satisfactory
compliance by Developer with all requirements, terms, and conditions of the CFA
(collectively, the "Secured Obligations)"; and
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
in lieu of and in complete satisfaction of the obligation to submit the Intended Security
to secure the performance of the Secured Obligations;
NOW THEREFORE, for and in consideration of the premises, ten dollars
($10.00) and other good and valuable consideration, the receipt, sufficiency, and
adequacy of which are hereby acknowledged and confessed, the parties hereto hereby
agree as follows:
SECTION 1. DEFINED TERMS.
For the purposes of this Agreement, unless the context otherwise clearly
requires, the following terms shall have the following meanings:
"Initial Security Funds" shall mean the cash deposit of $ 118,212.50 which
sum represents 125 percent of the estimated Developer's share of the cost of
constructing the public improvements identified in the CFA. The Developer's
share of the total cost of such public improvements shall hereinafter be called
the "Estimated Developer's Cost".
"Lien" shall mean any lien, security interest, charge, tax lien, pledge or
encumbrance designed to secure the repayment of indebtedness or the
satisfaction of any other obligation to a third party not a party of this Agreement.
"Payment and Performance Bond" shall mean a bond issued by a corporate
surety or insurance company acceptable to Fort Worth in an amount equal to the
cost of the public improvements not yet completed by Developer.
SECTION 2. PLEDGE. -- - - --- --
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SECTION 2. PLEDGE.
As security for the full and punctual performance of the Secured Obligations,
Developer hereby pledges, assigns, and transfers to Fort Worth, and hereby grants to
Fort Worth a security interest in, the Initial 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. (The Initial Security
Funds and any substitution by Developer with a Payment and Performance Bond as
permitted hereunder, are collectively referred to hereafter as the "Pledged Collateral");
TO HAVE AND TO HOLD the Pledged Collateral, together with all rights, titles,
interests, privileges, and preferences appertaining to or incidental thereto, unto Fort
Worth 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 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 Pledged
Collateral or any transaction involving or giving rise thereto.
SECTION 3. PHYSICAL POSSESSION UP PLEDGED COLLATERAL.
Concurrently with the execution of this Agreement, Developer shall have
delivered to and deposited with Escrow Agent the Initial Security Funds representing or
evidencing the Pledged Collateral. The parties acknowledge and agree that Escrow
Agent shall be required to segregate the Pledged Collateral from other funds held by
Escrow Agent for Developer in accordance with the normal practices of Escrow Agent.
Escrow Agent shall return all funds on deposit representing or evidencing the Pledged
Collateral remaining in its possession to Developer (or take such other action as
Developer may request or direct) within 3 business days after receipt of written notice
from Fort Worth that the Secured Obligations have been fully performed. During such
time as Escrow Agent has possession of the Pledged Collateral, Escrow Agent shall
furnish to Fort Worth (when requested by Fort Worth) written acknowledgments signed
by an officer of Escrow Agent detailing the amount of the Pledged Collateral.
SECTION 4. COVENANTS.
(a) Affirmative Covenants. So long as any of the Secured 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
Pledged Collateral;
(ii) furnish Fort Worth with information which may be reasonably
requested concerning the Pledged Collateral; and
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(iii) notify Fort Worth of any claim, action, or proceeding affecting title to
the Pledged Collateral or Fort Worth's security interest therein.
(iv) Adjust the Pledged Collateral to an amount equal to the actual contract
price of the public improvements identified in the CFA, including
revisions thereto.
(b) Negative Covenants. So long as any of the Secured Obligations remain
unperformed, Developer covenants and agrees that Developer will not:
(i) assign or transfer any rights of Developer in the Pledged Collateral; or
(ii) create any Lien in the Pledged Collateral, 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 or performance of the Secured Obligations after
written notice thereof has been given to Developer and Escrow Agent and such
default is not cured within twenty-one (21) days after such notice; or
(b) any affirmative or negative covenant is breached by Developer and such
breach is not cured within twenty-one (21) days after Developer's receipt of
written notice from Fort Worth.
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 Pledged Collateral. Escrow
Agent is hereby authorized to transfer the Pledged Collateral within 3 business days
upon the receipt of a written statement purporting to be executed by an authorized
representative of Fort Worth stating that:
(i) a default by Developer has occurred under the CFA executed in
connection with this Escrow/Pledge Agreement;
(ii) written notice of such Default has been given by Fort Worth to
Developer and Escrow Agent such Default was not cured within
twenty-one (21) days after such notice; and
(iii) Fort Worth is entitled to have the Pledged Collateral transferred in
accordance with the Agreement.
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(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 with a copy to all other parties at
the address set forth below, and shall be effective when actually received.
To Developer: K. A. Whitman
114 Partners, Ltd.
3930 Glade Road
Suite 108-PMB344
Colleyville, Texas 76034
To: Escrow Agent: Republic Title of Texas, Inc.
2626 Howell Street, 10th Floor
Dallas, Texas 76034
Attention: Jeanne Ragland
To: City of Fort Worth: David Speicher
Fort Worth Water Department
1000 Throckmorton
Fort Worth, TX 76102
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 obligation under the CFA, Fort Worth's sole
and exclusive remedy shall be to complete, and Fort Worth agrees that it will apply the
Pledged Collateral for the completion of, 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. PERIODIC WITHDRAWL OF COLLATERAL.
Notwithstanding any contrary provision in this Agreement, Developer shall have the
right to periodic withdrawals of the Pledged Collateral (hereinafter called the "Withdrawn
Collateral"), upon satisfaction of the following conditions:
(a) Developer shall provide Fort Worth and Escrow Agent with written notice (the
"Withdrawal Notice") that Developer desires to obtain the Withdrawn Collateral;
and
(b) the balance of the Pledged Collateral after withdrawal of the Withdrawn
Collateral is at least equal to the estimated value of the Secured Obligations then
remaining to be performed (such remaining value is hereinafter called the
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"Estimated Cost to Complete"), which estimate will be provided to Escrow Agent
and Fort Worth.
If after the expiration of two (2) years from the date of this Agreement either
(i) none of the Secured Obligations have been performed; or
(ii) the term of the CFA has not been extended by Fort Worth,
then in either event, Fort Worth shall be entitled to receive the Pledged Collateral as
specified in Section 6 and construct the public improvements contemplated in the CFA.
Upon receipt of written notice from Fort Worth that either item (i) or (ii) have occurred,
then within 3 business days of receipt of said notice, Escrow Agent will transfer the
Pledged Collateral to Fort Worth. If the cost to complete the construction of the public
improvements is in excess of the Pledged Collateral received by Fort Worth, Fort Worth
shall notify Developer of the additional sum of money necessary to complete the
construction of the public improvements. Developer shall remit payment within 10 days
from date of the notice. Failure to remit payment shall entitle Fort Worth to a
mechanic's lien against the entirety of Harriet Creek Ranch, Block 19.
SECTION 9. NON-ACCESSIBILITY OF FORT WORTH'S RIGHTS.
The rights, powers, and interests held by Fort Worth hereunder in and to the
Pledged Collateral 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 Pledged Collateral.
SECTION 10. 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 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 11. 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 12. CHOICE OF LAW.
This Agreement is to be construed and interpreted in accordance with the laws of
the State of Texas.
SECTION 13. COUNTERPARTS.
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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 14. INDEMNITY.
Developer hereby waives and 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.
SECTION 15. CERTAIN PROVISIONS RELATING TO ESCROW AGENT.
The Escrow Agent undertakes to perform only such duties as are specifically set
forth herein and may conclusively rely and shall be protected in acting or refraining from
acting on any written notice, instrument or signature believed by it to be genuine and to
have been signed or presented by the proper party or parties duly authorized to do so.
The Escrow Agent shall have no responsibility for the contents of any writing
contemplated hereby and may reasonably rely without any liability upon the contents
thereof. Notwithstanding anything to the contrary contained in this Agreement, where
any action is specified to be taken by the Escrow Agent upon delivery by either the
Developer or Fort Worth (or both the Developer and Fort Worth) of a notice, certificate
or instructions to the Escrow Agent, the Escrow Agent shall not be obligated to take any
action until the appropriate party (or parties) has (or have) acted by delivering the
certificate, notice or instructions to the Escrow Agent (none of which shall be binding
upon the Escrow Agent unless in writing) as to the action to be taken hereunder
indicating in writing that a copy of such certificate, notice or instructions has been
delivered to the other party.
The Escrow Agent shall not be liable for any action taken or omitted to be taken
by it in good faith and believed by it to be authorized hereby or within the rights or
powers conferred upon it hereunder, nor for any action taken or omitted to be taken by
it in good faith and in accordance with advice of counsel (which counsel may be of the
Escrow Agent's own choosing), and shall not be liable for any mistakes of fact or error
of judgment or for any acts or omissions of any kind unless caused by its own willful
misconduct or gross negligence.
This Escrow Agreement shall terminate after the disposition of all of the funds
deposited hereunder in accordance with the terms of this Escrow Agreement; provided,
however, the Escrow Agent's rights to indemnity and to receive payment of its fees and
expenses shall survive any termination of this Escrow Agreement and any resignation
or removal of the Escrow Agent.
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Escrow Agent assumes no liabilities and the parties hereto consent and agree
that Escrow Agent shall have no liability for any defalcation, insolvency, receivership or
conservatorship of the Depository Institution.
Nor shall Escrow Agent have any liability due to any of the parties other that
Escrow Agent filing for bankruptcy or the consequences or effect of such a Bankruptcy
on the funds and/or documents deposited hereunder.
Escrow Agent does not represent or warrant that the funds deposited are or will
be sufficient or adequate to pay any and all sums due either under this Agreement or
the CFA or to anyone performing work or providing materials pursuant to plans and
specifications, nor that the funds deposited are sufficient to complete the improvements
contemplated.
Section 16 Adjoining Property Owner.
Briscoe Clark Company, Ltd., ('Briscoe Clark") has previously entered into a
Escrow Agreement ("Initial Escrow Agreement"), dated November 14, 2003 with Escrow
Agent and Developer whereby $75,000 ("Existing Escrow Funds") was placed into
escrow by Developer to secure certain obligations of Developer to Briscoe Clark
regarding development obligations which are included within the Secured Obligations.
In connection with this Agreement, Developer has requested Briscoe Clark to direct the
Escrow Agent to release the Existing Escrow Funds to become a part of the Initial
Security Funds. Subject to the execution of this Addendum by Fort Worth, Briscoe
Clark hereby directs Escrow Agent to transfer the Existing Escrow Funds to be held by
Escrow Agent as part of the Initial Security Funds in accordance with the terms of this
Agreement. Fort Worth hereby agrees that if the Developer defaults in the performance
of its obligations under this Agreement that Fort Worth will either (a) promptly complete
the Secured Obligations, or (b) direct the Escrow Agent to transfer $75,000 of the Initial
Security Funds to be returned to the Existing Escrow Funds to be held and disbursed in
accordance with the terms of the Initial Escrow Agreement. Briscoe Clark joins into this
Agreement solely with regard to the provisions of this Addendum and shall in no event
have any obligations of the Developer pursuant to the terms of this Agreement.
Section 17. Multiple Counterparts.
This agreement may be executed in multiple counterparts.
(Remainder of Page Intentionally Left Blank)
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114 Partners Ltd., a Texas Limited
Partnership
By: GHFT Corporation
Its General P er
c _
NO M&C REQUIRED f
By
K. A. Whit an
President
CITY OF FORT WORT , TEXAS Attest:
By: §/)111
Ma tt '1Mart Hendrix, City Secretary
Assistant City Manager (�
App r ved as to Form and Legality
Assistant City Attorney
Escrow Agent:
Re lic i e of Texas, Inc.
Print Name:
Title: ^ y`
Date:
BRISCOE CLARK COMPANY, LTD., a Texas
limited partnership
By: Clark Briscoe Company, Inc.,
a Texas corporation, its general
partner
By:
James P. Briscoe
President
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