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HomeMy WebLinkAboutContract 47756 CITY SECRETARY L�77�� CONTRACT NO. LOAN AGREEMENT THIS LOAN AGREEMENT(the "Agreement")is made effective as of the Effective Date, by and among CA politan Fort Worth, a Texas nonprofit corporation, whose address is 3- ,$K - 44% ��(the "YMCA"), and City of Fort Worth, a Texas home rule municipal corporation, whose address is 1000 Throckmorton, Fort Worth, Texas 76107 (the "City"). BACKGROUND WHEREAS, on January 15, 2008, the City Council adopted a City-wide Aquatics Master Plan (M&C G-16003),the full implementation cost of which totaled about$66.3 million dollars; WHEREAS, for several years thereafter, operating funds for existing swimming pools were eliminated from the general fund due to budgetary constraints; WHEREAS, on March 20, 2012, the City Council evaluated and adopted measures to make the Aquatics Master Plan more feasible for aquatics to be reintroduced to the City (M&C G-17554); WHEREAS, such measures included the funding and development of aquatics facilities called Enhanced Neighborhood Family Aquatics Centers ("E-NFAC")in each sector of Fort Worth;cooperation with other entities, such as non-profit agencies, in the development of E-NFACs; and sustainability of aquatics facilities through proper resource allocation,including subsidies,to aid in the effective operation and maintenance of such facilities and programs; WHEREAS, YMCA is a nonprofit organization that strengthens the community by working side-by-side with its neighbors to ensure that everyone,regardless of age, income, or background,has the opportunity to learn, grow, and thrive; WHEREAS, YMCA is in the process of developing a multi-phase capital project that includes a cooperative opportunity for an E-NFAC in the southeast sector of Fort Worth on Mitchell Boulevard in the Renaissance Square Development("Aquatics Facility"); WHEREAS, this cooperative opportunity enables the leveraging of private and public funds to design, construct and operate an aquatics facility in an area of the City of Fort Worth that is deficient in such; WHEREAS, overall costs for the entire YMCA development are anticipated at $12,100,000.00, of which $2,300,000.00 would be the City's participation in the form of the Loan, specifically for the Aquatics Facility portion of the project, which Aquatics Facility will be located on the portion of the property legally described on Exhibit "A" attached hereto and made a part hereof(the "Land"); Loan Agreement YMCA SE Aquatics Center Page 1 of 21 OFFICIAL RECORD CITY SECRETARY FT WORTH,TX WHEREAS, the Aquatics Facility will include, among other things, approximately 7,000 square feet of water surface, four (4) lap lanes, an interactive play feature, zero beach entry, a large open-flume slide, large covered gathering space, site furnishings, and numerous shade umbrellas; WHEREAS, the City has also agreed to provide long-term support for the operation and maintenance of the Aquatics Facility in the form of an annual subsidy and contributions to a long-term major maintenance reserve fund, as set forth in the Support Agreement Between the City of Fort Worth and the YMCA of Metropolitan Fort Worth (City Secretary Contract Number 47755) ("Support Agreement"); WHEREAS, YMCA anticipates beginning construction of the Aquatics Facility in January of 2017 and completing it in February of 2018, with a grand opening scheduled for May of 2018; WHEREAS, on December 1, 2015, the City Council authorized the execution of this Agreement and found that the execution thereof serves to carry out the public purpose of providing quality,accessible, and cost-effective aquatics opportunities to the residents of Fort Worth in accordance with the City's 2015 Parks, Recreation, and Open Space Master Plan and the 2008 City-wide Aquatics Master Plan, as amended(M&C C-27548); and WHEREAS, this Agreement is intended to provide the controls necessary to carry out the above-stated public purpose and City has agreed to make the Loan to YMCA, subject to the terms and conditions set forth in this Agreement. AGREEMENTS In consideration of the Loan and other good and valuable considerations, the receipt and sufficiency of which are acknowledged, YMCA and City agree as follows: 1. BACKGROUND; DEFINITIONS. 1.1. Back rg ound. The above background is acknowledged to be true and is hereby incorporated herein by reference. 1.2. Definitions. As used in this Agreement, the following terms shall have the meanings ascribed, unless the context otherwise requires: (a) Advance: Shall have the meaning assigned in Article 4 hereof. (b) Agreement: This Agreement and any written amendments or modifications executed by YMCA and City. (c) Aquatics Facility: Shall have the meaning assigned in the sixth WHEREAS clause above. (d) Budget: The cost breakdown for the Improvements, as attached hereto as Exhibit "B", reflecting Loan Agreement YMCA SE Aquatics Center Page 2 of 21 the total of the Construction Costs as estimated by City and YMCA in order to enable YMCA to complete the Improvements. (e) Business Day: Any day on which City is open for business. (f) Commencement Date: December 30, 2016. (g) Completion Date: February 1, 2018. (h) Construction Costs: All costs for labor, materials, fixtures and furnishings, other than soft costs, incurred and to be incurred in the development of the Improvements, and as more particularly described in the Budget. (i) Deed of Trust: The Deed of Trust executed by YMCA to City encumbering the Land, securing in part the Loan and all other documents and instruments executed in connection therewith. 0) Effective Date: The date set forth in the last paragraph of this Agreement. (k) Events of Default or Default: The happenings and occurrences described in Article 6 of this Agreement. (1) Governmental Authority: Any municipal, county, state or federal governmental authority or other governmental authority (domestic or foreign) having or claiming jurisdiction over the Land, the Improvements, City or YMCA. (m) Improvements: The improvements to be made to the Land, including the construction of the Aquatics Facility, consisting of approximately 7,000 square feet of water surface, four (4) lap lanes, an interactive play feature, zero beach entry, a large open-flume slide, large covered gathering space, site furnishings, and numerous shade umbrellas, all of which are more particularly described in the Plans. (n) Land: The real property described on Exhibit A attached hereto. (o) Loan: The construction loan in the amount of up to Two Million Three Hundred Thousand and no/100 Dollars ($2,300,000.00) to be made by City to YMCA pursuant to the terms, provisions and conditions of this Agreement. (p) Loan Documents: All documents evidencing or otherwise executed and delivered by YMCA in connection with the Loan, including this Agreement, the Note and the Deed of Trust. (q) Note: The Promissory Note evidencing the Loan, made by YMCA to the order of City, in the principal amount of Two Million Three Hundred Thousand and no/100 Dollars ($2,300,000.00), with, among other terms, the following terms and conditions: (1) Interest will accrue at0%per annum; Loan Agreement YMCA SE Aquatics Center Page 3 of 21 (2) The Note will mature in 20 years; (3) The Principal is forgivable in accordance with the debt forgiveness schedule as set forth in the attached Exhibit"C"; and (4) Principal and Interest will be payable at maturity, and, provided there is no Event of Default, at maturity payment of the Note will be cancelled and forgiven. (r) Permitted Encumbrances: Any encumbrances approved in writing by City. (s) Plans: The architectural,engineering,structural and mechanical plans,drawings and specifications for the completion of the Improvements and all supplements, amendments and modifications thereto, which have been previously provided to and approved by City. (t) Request for Advance: All documentation necessary, in City's sole discretion, to demonstrate that the amounts requested by the YMCA for reimbursement were actually paid by YMCA for the Improvements. (u) Support Agreement: The Support Agreement Between the City of Fort Worth and the YMCA of Metropolitan Fort Worth(City Secretary Contract Number 47755). (v) Survey: The survey of the Land and, if applicable, the Improvements, as provided to City for funding of the Loan. (w) Unavoidable Delays: Delays due to strikes, blackouts, acts of God, governmental restrictions and moratoria, failure or inability to secure materials or labor by reason of priority or similar regulation or order of any governmental or regulatory body, enemy action, civil disturbance, fire, or hazardous weather (specifically including, but not limited to, tropical storms), provided however, within 30 days after the termination of the occurrence which caused any such delay,YMCA shall have given written notice to City of the cause of the delay and the period of time during which it existed, and the period of Unavoidable Delay shall be such period of time during which the particular delay existed. 2. THE LOAN AND COLLATERAL. 2.1. The Loan. (a) Subject to the terms, provisions and conditions, and relying upon the representations and warranties of YMCA provided herein, YMCA may borrow a principal amount not to exceed $2,300,000.00 for the construction of the Improvements. YMCA agrees to accept the Loan and to use the proceeds thereof only as provided in this Agreement. The Loan will not accrue interest and will be forgivable in accordance with the terms of the Note. (b) The Loan will be disbursed by City to YMCA in accordance with the terms and conditions of this Agreement. Loan Agreement YMCA SE Aquatics Center Page 4 of 21 2.2. Security for the Loan. The obligations of YMCA to repay the Loan shall be secured by the Note and Deed of Trust. 3. REPRESENTATIONS AND WARRANTIES. 3.1. Representations and Warranties. YMCA hereby represents and warrants to City as follows: (a) Capacity, Power, Etc. YMCA (i) has the power and authority to own property and to carry on its business in every jurisdiction in which the nature of its business or its,properties make such qualification necessary; and (ii) is in compliance in all material respects with all laws, regulations, ordinances and public authorities applicable to it and has the full power and authority to consummate the transactions contemplated herein. (b) Validity of Loan Instruments. The execution, delivery and performance by YMCA of this Agreement, and the borrowing evidenced by the Note and the execution and delivery of the Loan Documents constitute the legal, valid and binding obligations of YMCA enforceable against YMCA in accordance with their respective terms. (c) Title. YMCA has good and marketable title in fee simple to the Land, free and clear of any liens, charges, encumbrances, security interests and adverse claims whatsoever, except for the Permitted Encumbrances. (d) Plans, Building Permits. The Plans for all portions of the Improvements have been or will be, prior to the commencement of construction of the Improvements, approved by each Governmental Authority having or claiming jurisdiction over the Land and any other whose approval of the Plans, in whole or in part, may be called for by applicable undertakings of YMCA, and all building permits and other required permits and approvals for the construction and development of the Improvements will, prior to the commencement of construction have been issued and received thereon. The Plans shall have been reviewed and approved by City prior to such commencement of construction. (e) Other Financing. YMCA has not received any other lender financing for the construction of the Improvements. (f) Environmental Laws. To the best of YMCA's knowledge, all pollution and environmental control laws and regulations which are applicable to the Improvements and the use thereof have been satisfied. (g) Labor and Materials. All labor and materials contracted for in connection with the construction of the Improvements shall be used and employed solely on the Land in said construction. (h) Construction Costs. The amount of the Construction Costs are accurate, true and correct and are satisfactory to YMCA. (i) Mechanics' Liens. As of the date hereof, there is no notice of commencement filed of record in Tarrant County with respect to the Land or the Improvements; all bills for labor, materials and services Loan Agreement YMCA SE Aquatics Center Page 5 of 21 supplied or furnished to the Land or the Improvements have been paid in full; and no persons or entities have the right to assert a claim of lien against the Land for labor, services or materials furnished pursuant to State law. 4. ADVANCES. 4.1. Purpose, Time, Place. Subject to the provisions of this Agreement, from time to time as work on the Improvements progresses, City shall make disbursements of the Loan to YMCA on a reimbursement basis only (each, an "Advance"), in an aggregate principal amount not to exceed the Budget, in the amounts specified in Section 4.2 below, for the purpose of reimbursing YMCA for Construction Costs incurred in connection with the Improvements. 4.2. Amount. City shall make each Advance based upon the Request for Advance, PROVIDED THAT no more than Two Million Three Hundred Thousand and No/100 Dollars ($2,300,000.00) shall be disbursed in total. 4.3. DELETED BY AGREEMENT OF THE PARTIES 4.4. Advances. City shall make properly requested Advances not more frequently than once a month to YMCA. With respect to each requested Advance, at least thirty (30) business days prior to the date of each Advance, unless otherwise specified herein, YMCA shall deliver to City the following (and City shall fund such Advance before the expiration of said thirty (30) business day period subject to the terms,provisions and conditions hereof): (a) A Request for Advance which shall constitute a representation and warranty that the work stated therein has been performed in accordance with the provisions of this Agreement, the Plans and all contractual obligations of the parties therein named as well as a representation and warranty that all conditions precedent to any such Advance have been satisfied and that there is no Event of Default hereunder; and (b) Such other instruments, documents and certificates as City may reasonably request. The City will make the Advance no later than thirty (30) days after the YMCA has delivered the above-described documents. All Advances shall be evidenced by the Note and secured by the Loan Documents. 4.5. Final Advance. At least ten(10)business days prior to the date of the final Advance for the Loan, following the substantial completion of the Improvements, unless otherwise specified herein, YMCA shall deliver to City the following: (a) The documents, instruments and certificates required by Section 4.4; (b) Any other documentation, in City's sole but reasonable discretion, as City may request, including but not limited to those instruments, documents, affidavits, certificates, or waivers necessary to Loan Agreement YMCA SE Aquatics Center Page 6 of 21 demonstrate the completion of the Improvements in a workmanlike manner, in accordance with the Plans, and free of liens other than the lien evidenced by the Note and Deed of Trust. The City will make the final Advance no later than thirty (30) days after the YMCA has delivered the above-described documents. 4.6. Conditions of Advances. Notwithstanding anything herein or in any other agreement between YMCA and City to the contrary, City shall not be obligated to make any Advance hereunder which it otherwise would be obligated to make, if on the date such Advance is to be made an Event of Default under the Note or Deed of Trust or hereunder, or an event which (with or without the passage of time or the giving of notice or both) will constitute an Event of Default hereunder, shall have occurred and be continuing. 5. COVENANTS. 5.1. Affirmative Covenants. YMCA hereby covenants and agrees that,from the date hereof and so long as any of the Advances shall not have been repaid in accordance with the Note, YMCA will: (a) Construction. Commence construction of the Improvements by the Commencement Date, and diligently and continuously proceed toward the completion of the Improvements in a sound and workmanlike manner so that the same will be completed on or before the Completion Date (i) in substantial accordance with the Plans (and all change orders must be approved by City and YMCA in writing); (ii) in accordance with existing zoning ordinances or existing variances thereof and in compliance with all building and use restrictions applicable to the Improvements and all other applicable laws, rules, permits, ordinances, regulations or restrictive covenants or requirements of Governmental Authorities; and (iii) free and clear of all adverse claims and liens, encumbrances and security interests other than the liens of the Permitted Encumbrances. (b) Performance of Obligations. Duly pay, perform and discharge all of their other obligations hereunder, under the Note and any other agreement between YMCA and City covering the Aquatics Facility, including, but not limited to, UPON COMMENCEMENT OF OPERATIONS OF THE IMPROVEMENTS, (I) FORT WORTH RESIDENTS WILL BE SERVED SIMILAR TO ANY OTHER CITY OF FORT WORTH AQUATICS FACILITIES, IN TERMS OF AVAILABILITY AND HOURS OF OPERATION, DAILY ADMISSION FEES, PRIVATE RENTALS, SPECIAL EVENTS AND USE WITHOUT A MEMBERSHIP AND (II) LEARN-TO-SWIM PROGRAMS WILL BE PROVIDED. (c) Inspections. Permit City, or any interested Governmental Authority (to the extent it may lawfully do so) to enter upon the Land at any reasonable time and from time to time, to inspect the Improvements. (d) Insurance. 1. YMCA, at its expense, shall insure the building/pool and fixtures with fire and extended coverage insurance, and such liability insurance as it may elect to carry for its own risks. Loan Agreement YMCA SE Aquatics Center Page 7 of 21 2. The YMCA shall maintain, or cause to be maintained, in full force and effect and at its sole cost and expense, the following types and limits of insurance: i. Workers compensation insurance meeting applicable statutory requirements and employer's liability insurance with minimum limits of One Hundred Thousand Dollars ($100,000) for each accident. ii. Commercial property insurance meeting the limits of the building/pool. And additional other structures located on the property as required. iii. Comprehensive commercial general liability insurance meeting limits of One Million Dollars ($1,000,000) as the combined single limit for each occurrence of bodily injury, personal injury, and property damage. iv. Automobile liability insurance coverage all owned, hired, and non-owned vehicles in use by the YMCA, its employees and agents, with personal protection insurance and property protection insurance to comply with the provisions of state law with minimum limits of One Million Dollars ($1,000,000) as the combined single limit for each occurrence for bodily injury and property damage. V. All policies other than those for workers compensation shall be written on an occurrence not on claims made basis. vi. The coverage amounts set forth above may be met by a combination of underlying and umbrella or excess policies, so long as in combination, the limits equal or exceed those stated. vii. All policies, except workers compensation policies, shall name the City, its officers, boards, commissions, employees and agents as additional insured's (Additional Insured's). Each policy which is to be endorsed to add Additional Insured's shall contain cross-liability wording, as follows: "If a claim is made by one insured for which another insured is or may be liable, then this policy shall cover the insured against whom a claim is or may be made in the same manners as if separate policies had been issued to each insured. Limits are shared by all insured's." viii. Certificates of Insurance for each insurance policy required to be obtained by the YMCA in compliance with this paragraph shall be filed and maintained with the City annually during the term of this Agreement. YMCA shall immediately advise the City of any claim or litigation that may result in liability to the City. Loan Agreement YMCA SE Aquatics Center Page 8 of 21 ix. All insurance policies maintained pursuant to this Agreement shall contain the following endorsement: "At least thirty (30) days prior written notice shall be given to the City by the insurer of any intention not to renew this policy or cancel, replace, or materially alter this policy, the notice to be given by registered mail." X. The insurance required in this paragraph shall be carried with a responsible company or companies acceptable to the City, licensed to do business in the State of Texas. (e) Compliance with Laws. Promptly and faithfully comply with, conform to and obey in all material respects all present and future laws, ordinances, rules, regulations and requirements of every Governmental Authority. (f) Proceedings. Notify City of the institution of any proceedings at law or in equity against YMCA, including but not limited to, any proceedings to assert or enforce mechanics' or materialmen's or other involuntary liens. (g) Payment of Impositions. Pay and discharge all (i)real estate and personal property taxes and other taxes and assessments, water and sewer rates and charges and all other governmental charges and any interest or costs or penalties with respect thereto, and charges for any easement or agreement maintained for the benefit of the Improvements, general and special, ordinary and extraordinary, foreseen and unforeseen,of any kind and nature whatsoever which at any time prior to or after the execution of the Loan Documents may be assessed, levied or imposed upon the Improvements or the rent or income received therefrom, or any use or occupancy thereof, (ii) other taxes, assessments, fees and governmental charges levied, imposed or assessed upon or against YMCA or any of its properties, and (iii) all lawful claims for labor, materials and supplies or otherwise which, if unpaid, might become a lien or charge upon such properties or any part thereof. (h) Notice. Give prompt written notice to City of any action,event or condition of any nature known to any employee of YMCA or of which any employee should have knowledge,which constitutes an Event of Default under this Agreement. 5.2. Negative Covenants. YMCA further covenants and agrees that,from the date hereof and so long as any of the Advances shall not have been paid in full, as to both principal and interest, it will not: (a) Plans. Modify or amend, or permit to be modified or amended,the Plans,without the prior consent of City, which shall not be unreasonably delayed. (b) Transfer or Conveyance. Voluntarily or by operation of law, sell, convey, transfer or permit to be sold, conveyed or transferred, any interest in or any part of the Land, nor shall a voluntary sale, pledge or other transfer of any interest in YMCA effected without the prior written consent of City having been first Loan Agreement YMCA SE Aquatics Center Page 9 of 21 obtained. (c) Maintenance of Improvements. Fail to keep and maintain or fail to cause to be kept and maintained in good order and repair any portion of the Improvements. 6. DEFAULT. 6.1. Events of Default or Default. The occurrence of any of the following shall constitute an Event of Default or Default hereunder if the occurrence is not cured within thirty (30) days after receipt of written notice thereof by City, or such other period as may be provided specifically in the Loan Documents; provided, however, that (i) if YMCA reasonably cannot perform or comply with any such obligation within such thirty (30) day period and if, in City's reasonable judgment, City's security will not be impaired, then YMCA may have such additional time to rectify such failure as YMCA reasonably may require, provided and for so long as YMCA proceeds with due diligence, and (ii) if, in City's reasonable judgment, City's security will be impaired if YMCA does not perform or comply with any such obligation in a period of less than thirty (30) days, YMCA will have only such period (if any) following demand in which to rectify such failure as City may reasonably specify; (a) Performance of Covenants. YMCA fails to observe or perform any covenant or agreement made by YMCA hereunder or under any other agreement between YMCA and City related to the Aquatic Facility, including the Loan Documents; or (b) Breach of Warranty. Any representation or warranty made by YMCA hereunder, under any statement, instrument or certificate delivered by YMCA to City pursuant to the provisions hereof, under any other agreement among YMCA and City, including the Loan Documents, or otherwise, is determined by City to have been false or misleading in any material respect as of the date on which the same was made; or (c) Delay in Construction. YMCA is not, in the opinion of City, proceeding continuously and diligently towards completion of the Improvements; or the construction or completion of the Improvements is discontinued or abandoned for a period of over fifteen(15)days unless the same is due to Unavoidable Delays; or (d) Injunction. Any person or entity obtains an order or decree in any court of competent jurisdiction enjoining or delaying the construction of the Improvements or completion of the Improvements or enjoining or prohibiting YMCA or City from carrying out the provisions of this Agreement and such order or decree is not vacated within thirty (30) days; or (e) Attachment. Except as expressly provided otherwise hereunder, an attachment or any other lien (mechanic's or otherwise) against the Land for an amount greater than$5,000.00 is issued or entered and shall remain undischarged or unbonded for thirty(30) days after the filing thereof; or Loan Agreement YMCA SE Aquatics Center Page 10 of 21 (f) Levy pon the Land. Levy is made under any process on, or a receiver be appointed for the Land or any other property, of YMCA which has not been superseded or discharged within thirty(3 0)days after execution thereon; or (g) Bankruptcy, Receivership, Insolvency, Etc. YMCA commits an act of Bankruptcy within the meaning of the Federal Bankruptcy Code; or Bankruptcy, receivership, insolvency, reorganization, dissolution, liquidation or other similar proceedings are instituted by or against YMCA for all or any part of its property under the Federal Bankruptcy Code or other law of the United States or of any state or other competent jurisdiction (domestic or foreign) and, if against YMCA, it consents thereto or shall fail to cause the same to be discharged within sixty (60) days; or (h) Failure to Complete Improvements. YMCA fails to complete the Improvements in substantial accordance with the Plans on or before the Completion Date; or (i) Improper Materials. In the event City shall determine that any work or materials are not in substantial conformity with the Plans, or ordinances, statutes,permits and regulations, and City's security is placed in jeopardy thereby. In addition to the remedies set forth below,the City may stop the work and order replacement or correction regardless of whether or not such work or materials have theretofore been incorporated into the Improvements. 6.2. Remedies. If an Event of Default shall occur and be continuing, City may, at its option: (a) Termination of Advances. Terminate any obligation of City to make any further Advances. (b) Deed of Trust and Loan Documents. Exercise any and all rights and remedies set forth in the Deed of Trust and Loan Documents. In the event of foreclosure by City in accordance with its rights in the Loan Documents, the parties acknowledge that the change in ownership of the Property will trigger a platting requirement for the Property, and YMCA shall, at its sole cost and expense,pay for or reimburse the City for all expenses and costs related to the platting of the property, and shall cooperate with City to obtain an approved final plat, whether before the transfer of ownership to City or, as necessary, after the transfer. (c) Completion of Construction. To the maximum extent permitted under the laws of the State, City shall have the right, but not the duty, in addition to the rights or remedies afforded to City under the Deed of Trust (i) to enter upon the Improvements and take possession thereof, complete the Improvements in accordance with the Plans (with such changes therein as City may deem appropriate and applicable legal requirements) and take all action it deems necessary to protect the Improvements, all at the risk, cost and expense of YMCA; (ii) at any time discontinue any work commenced in respect of the Improvements or abandon the Improvements or change any course of action undertaken by it; or (iii) assume (but not be obligated to)any construction contract made by YMCA in any way relating to the Improvements and take over and use all or any part of the labor, material, supplies and equipment contracted for by YMCA, whether or not previously incorporated into the Improvements in order to complete the Improvements. (d) Other. Cumulatively exercise any other remedy specifically granted hereunder or in the Loan Loan Agreement YMCA SE Aquatics Center Page 11 of 21 Documents, or now or hereafter existing in equity, at law, by virtue of statute or otherwise. 6.3. Additional Rights of City; Cross-Default. (a) Any notices under this Section shall specify the reason City is taking any of the acts and actions authorized under this Section. (b) A breach or default by YMCA of the Support Agreement, or any other agreement between YMCA and City related to the Aquatics Facility, constitutes a contemporaneous breach of this Agreement. In the event that the Support Agreement, or any other agreement between YMCA and City related to the Aquatics Facility, are terminated in accordance with their respective terms and conditions due to an Event of Default, this Agreement will automatically terminate contemporaneously with the termination of the Support Agreement, or related agreements, as the case may be, without further notice or obligation to YMCA hereunder. 6.4. City's Rihg is Optional. Wherever in this Agreement City is authorized or given the right to take any action or execute any instrument, City may exercise or refrain from exercising such right, and City shall not incur any liability for failure to exercise such right or for any delay in so exercising such right. 7. OTHER PROVISIONS. 7.1. No Representations by City. City has no obligation in connection with the Improvements, except to advance the proceeds of the Loan as herein provided, and City shall not be liable for the performance or non-performance or delay in performance of any contractor, subcontractor or supplier of materials, or for the quality of workmanship or materials, or for the failure to construct, complete, protect or insure the Improvements, or for the payment of any cost or expenses incurred in connection therewith, or for the performance or non-performance or delay in performance of any obligation of YMCA to City. Any inspection by City of the Improvements, the approval of any plans, contracts or other activities in the nature thereof shall only be for the sole and separate benefit of City as lienholder and for the purpose of protecting the security of City, and the same shall in no way be construed as a representation that there is compliance on the part of YMCA with any plans or that the construction of the Improvements is free from faulty material or workmanship. The fact that City makes such inspections and approves any plans, contracts, or other activities, shall not relieve YMCA from its duties to independently ascertain that the Improvements are being completed in accordance with any plans, and YMCA has no right to rely on any procedures required by City. Approval by the City of any plans and specifications relating to the Improvements shall not constitute or be deemed (i) to be a release by the City of the responsibility or liability of YMCA or any of its contractors; their officers, agents, employees and subcontractors, for the accuracy or the competency of the plans and specifications, including, but not limited to, any related investigations, surveys, designs, working drawings and other specifications or documents, or (ii) an assumption of any responsibility or liability by the City for any negligent act, error or omission in the conduct or preparation of any investigation, surveys, designs, working drawings and other specifications or documents by YMCA or any of its contractors; their officers, agents, employees and subcontractors. Loan Agreement YMCA SE Aquatics Center Page 12 of 21 7.2. Assignment. YMCA shall not assign this Agreement or the proceeds to be advanced hereunder. The rights of YMCA under this Agreement are personal and not assignable. Notwithstanding the foregoing, in the event YMCA does make an assignment of this Agreement or of its rights hereunder, City may, at City's option, continue to make Advances hereunder to YMCA or the successors in interest in the Improvements, and all sums so advanced shall be deemed Advances made in pursuance and not in modification hereof and shall be evidenced and secured by the Note and the Deed of Trust. 7.3. Rights, Remedies, Powers. Each and every right, remedy and power granted to City hereunder shall be cumulative and in addition to any other right, remedy or power herein specifically granted now or hereafter existing in equity, at law, by virtue of statute or otherwise and may be exercised by City from time to time concurrently or independently and as often and in such order as City may deem expedient. Any failure or delay on the part of City in exercising any such right,remedy or power, or abandonment or discontinuance of steps to enforce the same, shall not operate as a waiver thereof or affect City's right thereafter to exercise the same, and any single or partial exercise of any such right, remedy or power shall not preclude any other or further exercise thereof or the exercise of any other right, remedy or power. If City proceeds to enforce any such right,remedy or power and such proceedings are determined adversely to City, then in each such event YMCA and City shall be restored to their former positions and the rights, remedies and powers of City shall continue as if no such proceedings had been taken. 7.4. Modification Waiver Consent. Any modification or waiver of any provision of this Agreement or any consent to any departure by YMCA therefrom shall not be effective in any event unless the same is in writing and signed by City, and then such modification, waiver or consent shall be effective only in the specific instance and for the specific purpose given. Any notice to or demand on YMCA not specifically required of City hereunder shall not entitle YMCA to any other or further notice or demand in the same, similar or other circumstances unless specifically required hereunder. Any advance of loan proceeds hereunder shall not constitute a waiver of any of the conditions of City's obligations to make further advances nor, if YMCA is unable to satisfy any such condition, shall any such waiver have the effect of precluding City from thereafter declaring such inability to be an Event of Default hereunder as hereinabove provided. 7.5. Communications. All notices which are required or permitted hereunder must be in writing and shall be deemed to have been given,delivered or made,as the case may be, (notwithstanding lack of actual receipt by the addressee) (i) seven(7)business days after having been deposited in the United States mail, certified or registered, return receipt requested, sufficient postage affixed and prepaid, or (ii) one (1) business day after having been deposited with an expedited, overnight courier service, addressed to the party to whom notice is intended to be given at the address set forth below: To YMCA: YMCA of Metropolitan Fort Worth Attn: Executive Director 572 Lamar Street, Suite 400 Fort Worth,Texas 76102 Loan Agreement YMCA SE Aquatics Center Page 13 of 21 To City: City of Fort Worth Park and Recreation Department Attn: Director 4200 S. Freeway, Suite 2200 Fort Worth,Texas 76115 With a copy to: City Attorney 1000 Throckmorton St. Fort Worth, Texas 76102 Any party may change the address to which its notices are sent by giving the other party written notice of any such change in the manner provided in this Section, but notice of change of address is effective only upon receipt. YMCA hereby irrevocably appoints, designates and authorizes City as its agent to file for record any notices that City deems necessary or desirable to protect its interest hereunder or under the Loan Documents. YMCA shall forward to City copies of all notices given or received by any of them to or from any contractor, subcontractor or materialman or other person having a lien under the State's mechanic's lien laws, promptly upon the giving or receipt of such notice, the nature of which notice is related to the failure to perform under this Agreement, or the State's mechanic's lien laws. Any notice mailed in accordance with the above provisions shall be deemed received and effective as set forth in the notice provisions of the Deed of Trust. Although certain courtesy copies have been requested, as designated above,the failure to furnish any or all courtesy copies shall not affect,alter, diminish or impair any notice furnished hereunder to YMCA or City, as the case may be. 7.6. Governing Law, Venue. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County,Texas or the United States District Court for the Northern District of Texas—Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 7.7. Severability. In case any one or more of the provisions of this Agreement shall be invalid, illegal or unenforceable in any respect, the validity of the remaining provisions shall be in no way affected, prejudiced or disturbed thereby. 7.8. Counterparts.This Agreement may be executed in any number of counterparts,each of which shall be an original but all of which together shall constitute one agreement. Loan Agreement YMCA SE Aquatics Center Page 14 of 21 any prior understandings and agreements among City and YMCA with respect to the subject matter hereof. 7.10. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the respective permitted successors and assigns of YMCA and City. 7.11. No Agency. City is not the agent or representative of YMCA and YMCA is not the agent or representative of City, and nothing in this Agreement shall be construed to make City liable to anyone for goods delivered or services performed by them upon the Land or for debts or claims accruing to them against YMCA. Nothing herein shall be construed to create a contractual relationship between City and anyone supplying labor or materials to the Land. City's obligations are not for the benefit of or enforceable by any successor to or assignee of YMCA, except as specifically provided otherwise herein. 7.12. Agreement Solely For Benefit of City, Etc. All conditions of the obligations of City to make Advances hereunder are imposed solely and exclusively for the benefit of City and its assigns and no other person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that City will refuse to make Advances in the absence of strict compliance with any or all provisions thereof and no other person shall,under any circumstances,be deemed to be a beneficiary of such conditions, any or all of which may be freely waived in whole or in part by City at any time if in its sole discretion it deems it advisable to do so. 7.13. No Partnership or Joint Venture. Nothing herein nor the acts of the parties hereto shall be construed to create a partnership or joint venture between YMCA and City. 7.14. Survival of Provisions. All terms, covenants, agreements, representations and warranties made in this Agreement and the documents delivered in support of the Loan shall be deemed to have been material and relied on by City and shall survive the execution and delivery to City of the Note,the Loan Documents and the disbursement and advance of funds pursuant to the Loan. 7.15. Indemnification. WITHOUT LIMITING ANY OF THE OTHER PROVISIONS CONTAINED IN THE AGREEMENT, THE NOTE, THE DEED OF TRUST OR THE LOAN DOCUMENTS, YMCA AGREES TO INDEMNIFY AND HOLD CITY HARMLESS AGAINST AND WITH RESPECT TO ANY AND ALL LIABILITY, DEFICIENCY, DAMAGE, COST OR EXPENSE RESULTING FROM ANY MISREPRESENTATIONS, MATERIAL OMISSION, BREACH OF WARRANTY OR REPRESENTATION, OR THE NON-FULFILLMENT OF ANY COVENANT OR AGREEMENT ON THE PART OF YMCA UNDER OR RELATING TO THIS AGREEMENT, THE NOTE, THE DEED OF TRUST OR THE LOAN DOCUMENTS, AND ANY AND ALL ACTIONS, SUITS, PROCEEDINGS, DEMANDS, ASSESSMENTS, JUDGMENTS, COSTS, LEGAL AND ACCOUNTING FEES OR OTHER EXPENSES INCIDENT TO THE FOREGOING INDEMNIFICATION BY YMCA PURSUANT TO THIS SUBSECTION. 7.16. Loan Proceeds Limitations. YMCA shall under no circumstances use any of the Loan proceeds disbursed by City hereunder for the payment of any items,purchase, or obligation not connected with the Improvements. All Loan proceeds are to be used solely in connection with the Improvements and for no Loan Agreement YMCA SE Aquatics Center Page 15 of 21 other purpose. 7.17. Loan Funds. City shall not be required to segregate the Loan funds or to earmark such funds in any manner. The sole obligation of City shall be to disburse the funds in accordance with the terms and provisions of this Agreement. In the event no funds or insufficient funds are appropriated and budgeted in any fiscal period for payments due under this contract,then the City will (i) immediately notify YMCA of such occurrence and this contract shall be terminated on the last day of the fiscal period for which appropriations were appropriated and budgeted without penalty or expense to the City of any kind whatsoever,except to the portions of annual payments herein agreed upon for which funds shall have been appropriated and budgeted and(ii)make Advances for any Request for Advances submitted as of the date of termination. 7.18. Conflict With Note Deed of Trust and Loan Documents. In the event of any conflict between the terms of the Note, the Deed of Trust, the Loan Documents and this Agreement, the terms of this Agreement shall control and govern in all respects. Whenever possible, the provisions of this Agreement shall be deemed supplemental to and not in derogation of the Note, the Deed of Trust and the Loan Documents. 7.19. Rights of Third Parties. City makes no representations and assumes no obligations as to third parties concerning the quality of the construction by YMCA of the Improvements or the absence therefrom of any defects. In this regard, YMCA AGREES TO AND SHALL INDEMNIFY CITY FROM ANY LIABILITY, CLAIM OR LOSSES RESULTING FROM THE DISBURSEMENT OF THE LOAN OR FROM THE CONDITION OF THE IMPROVEMENTS WHETHER RELATED TO THE QUALITY OF CONSTRUCTION OR OTHERWISE AND WHETHER ARISING DURING OR AFTER THE TERM OF THE LOAN. This subsection shall survive the repayment of the Loan and shall continue in full force and effect so long as the possibility of any liability, claim or loss exists. 7.20. Headings. The headings of the articles, sections and subsections of this Agreement are for convenience and reference only and shall not be considered a part hereof nor shall they be deemed to limit or otherwise affect any of the terms or provisions hereof. 7.21. Exhibits. All of the exhibits annexed hereto are incorporated herein by reference and form apart of this Agreement. 7.22. Saturday, Sunday or Non-Business Day. If the date for the performance of any term, provision or condition (monetary or otherwise) under the Loan shall happen to fall on a Saturday, Sunday or Non-Business Day,the date for the performance of such term,provision or condition shall be extended to the next succeeding Business Day immediately thereafter occurring, with interest at the applicable rate on the principal amount to such next succeeding Business Day if such term, provision or condition shall result in the extension of any monetary payment due to City. 7.23 Fiscal Funding Out. If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may terminate this Agreement, either in whole or in part,to be effective on the later of(i) Loan Agreement YMCA SE Aquatics Center Page 16 of 21 thirty (30) calendar days following delivery by City to YMCA of written notice of City's intention to terminate or (ii)the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 7.24 No Discrimination. (a) A person shall not be excluded from participation in, be denied the benefits of, be subjected to discrimination under, or be denied employment in the administration of or in connection with any program or activity funded in whole or in part with any funds made available under this Agreement, on the grounds of race, color, religion, sex, national origin, age, disability, political affiliation or belief, sexual orientation, gender identity, or gender expression or any other legally protected class of individuals. (b) YMCA covenants that neither it nor any of its officers, members, agents, employees, volunteers, or contractors, while engaged in performing this Agreement, shall, in connection with the employment, advancement or discharge of employees or in connection with the terms, conditions or privileges of their employment, discriminate against persons because of their age or because of any disability or perceived disability, except on the basis of a bona fide occupational qualification, retirement plan or statutory requirement. (c) YMCA further covenants that neither it nor its officers, members, agents, employees, contractors, volunteers, or persons acting on their behalf, shall specify, in solicitations or advertisements for employees to work on this Agreement, a maximum age limit for such employment unless the specified maximum age limit is based upon a bona fide occupational qualification, retirement plan or statutory requirement. 7.25 Charitable-Immunity. If YMCA, as a charitable or nonprofit organization, has or claims an immunity or exemption (statutory or otherwise) from and against liability for damages or injury, including, but not limited to, death, to persons or property, YMCA hereby expressly waives its right to plead defensively such immunity or exemption against City related to the Aquatics Facility. This waiver is: (i)only as to claims by the City and will not apply to claims by third parties against the YMCA; and (ii) does not apply to immunity from liability for volunteers granted under Section 84.004 of the Texas Civil Practices and Remedies Code. 7.26 Record Keeping, Monitoring, and Audit. (a) YMCA agrees that the City shall have access to and the right to examine any directly pertinent books, documents,papers and records of YMCA involving transactions relating to this Agreement during the Term of this Agreement and for three (3) years thereafter. YMCA agrees that the City shall have access during normal working hours to all necessary YMCA facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give YMCA reasonable advance notice of intended audits. (b) YMCA further agrees to include in any of its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall have access to and the right to examine any Loan Agreement YMCA SE Aquatics Center Page 17 of 21 f directly pertinent books, documents, papers and records of such subcontractor involving transactions to the subcontract for the term of this Agreement and for three(3) years thereafter, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give subcontractor reasonable advance notice of intended audits. (c) This section shall survive the expiration or termination of this Agreement. YMCA has caused this Agreement to be executed as of , 2016 ('Effective Date"). ' YMCA F METROPOLITAN FORT WORTH 0 ER [Name of aztthorized representative] l ��D oauthorized representative] p -P4A-1 Cec� Loan Agreement YMCA SE Aquatics Center Page 18 of 21 EXHIBIT "A" PROPERTY DESCRIPTION (to be attached) Loan Agreement YMCA SE Aquatics Center Page 19 of 21 EXHIBIT "All LAND DESCRIPTION BEING a tract of land situated in the J. Justice Survey, Abstract No. 859, Tarrant County, Texas and being a portion of Lot 1R1, Block 1 of the Mason Heights Addition, an addition to the City of Fort Worth as recorded in Document No. D215133856 of the Plat Records, Tarrant County, Texas (P.R.T.C.T.); COMMENCING at a 1/2 inch iron rod found with plastic cap stamped "WAI" at the northwest corner of a right-of-way corner clip at the intersection of the northerly right-of-way of Moresby Street (a variable width right-of-way) as recorded in Document No. D212201535 (P.R.T.C.T.) and the easterly right-of-way line of Mitchell Boulevard (a 100 foot right-of-way, deed of record not found); THENCE, along the easterly right-of-way line of said Mitchell Boulevard,North 00 degrees 11 minutes 35 seconds West a distance of 128.50 feet to a 5/8 inch iron rod set with plastic cap stamped "Huitt-Zollars" at the POINT OF BEGINNING; THENCE, continuing along the easterly right-of-way line of said Mitchell Boulevard, North 00 degrees 11 minutes 35 seconds West a distance of 152.00 feet to a 5/8 inch iron rod set with plastic cap stamped "Huitt-Zollars"; THENCE, departing the easterly right-of-way line of said Mitchell Boulevard, North 89 degrees 48 minutes 25 seconds East a distance of 195.09 feet to a 5/8 inch iron rod set with plastic cap stamped "Huitt-Zollars"; THENCE, South 00 degrees 11 minutes 35 seconds East a distance of 152.00 feet to a 5/8 inch iron rod set with plastic cap stamped "Huitt-Zollars"; THENCE, South 89 degrees 48 minutes 25 seconds West a distance of 195.09 feet to the POINT OF BEGINNING and containing 29,654 square feet of land or 0.6808 of an acre of land, more or less. For Huitt-Z Ilars, Ii OF TF itc ell S. Pillar �`? �� R�•-f Registered Professional Land Surveyor `'�` �� �c' Texas Registration No. 5491 MITCHELL SAGIIN..... Huitt-Zollars, Inc. ��`.�� 5491 Y"•'Q Firm Registration No. 10025600ti SUtLyO 1717 McKinney Avenue, Suite 1400 Dallas, Texas 75202 Ph. (214) 871-3311 Date: September 20, 2016 Page 1 of 2 J:\Survey\30047802-YMCA Moresby Street\wp\Pool Area LAND DESCRIPTION.doc BASIS OF BEARING: TEXAS STATE PLANE COORI)INATE SYSTEM, N,A.D. 83, NORTH CENTRAL ZONE (4202). IRS N 89048'25" E 195.09' IRs SCALE: V-50' z C) cn 0 I o W 3 S0 (0.6808 ACRES) m I i I Q Q N s J � p N O m q POINT OF BEGINNING o J (� W cif _ - IV o IRS S 89°48'25"W 195.09' IRS v Z 0 I R MASON HEIGHTS ADDITION I D215133856 I P.R.T.C.T. ( I LOT 1R1, BLOCK 1 ( I ( PRIVATE N DRAINAGE EASEMENT POINT OF COMMENCING °2'5'33,56 � I P.R.7.QT. 1/2"IRF W/WAI CAP I b� MORESBY STREET (VARIABLE WIDTH RIGHT-OF-WAY) D212201535 P.R.T.C.T. IRS-5/8 INCH IRON ROD SET WITH PLASTIC CAP STAMPED "HUITT-ZOLLARS" HUFTEZOLORS EXHIBIT MAP 0.6808 ACRES OUT OF THE Huitt-Zollars,Inc. Dallas J. JUSTICE SURVEY, 1717 McKinney Avenue,Suite 1400 ABSTRACT No. 859 Dallas,Texas 75202-1236 Phone(214)871-3311 Fax(214)871-0757 TARRANT COUNTY, TEXAS PAGE 2 OF 2 EXHIIT "B" BUDGET Loan Agreement YMCA SE Aquatics Center Page 20 of 21 i A B C D E I P R *- I- \BK WBKIBLERCONSTRUCTIONCO.,LTD. WGENERAL CONTRACTORSE HB'T ®, „ Retail Educational Industrial Medical Once Raf,ia: PROJECT:SOUTHEAST MCDONALD YMCA GMP RECAP BID DATE: 20-Oct-2016 LOCATION:FT WORTH,TEXAS BLDG SF: 9:36 AM TOTAL PROPOSED AMOUNT: Breakout Cost Pool Area SECTION ITEM QUANTITY TOTAL incl.RR 14 DIV 1 GENERAL CONDITIONS-STAFF 12 MOS 0 63,624 16 GENERAL CONDITIONS-OFFICE&EQUIPMENT 12 MOS 0 5,256 18 GENERAL CONDITIONS-TEMPORARY UTILITIES 12 MOS 0 5,267 20 GENERAL CONDITIONS-PROTECTION&SAFETY 12 MOS 0 3,225 22 GENERAL CONDITIONS-INTERIM&FINAL CLEANUP 12 MOS 0 9,049 24 GENERAL CONDITIONS-HOISTING 12 MOS 0 26 GENERAL CONDITIONS MISCELLANEOUS ITEMS 12 MOS 0 3,433 28 ENGINEERING AND SURVEY 12 MOS 0 2,567 30 MOS 210,818 By Owner 32 ARCHITECTURAL AND POOL DESIGN FEES MOS 0 By Owner 34 SHADESTRUCTURES MOS 0 By Owner 36 FF&E MOS 0 38 MOS 0 By Owner 32 TESTING LAB 0 TEMPORARY PARTITIONS& 34 BARRICADES 0 36 GROUND PENETRATING RADAR 1 EA 12,500 2,855 38 0 40 024100 DEMOLITION 0 42 311000 SITE CLEARING 0 44 CONSTRUCTION ENTRANCE,SILT FENCE FINE GRADE&FILL 0 4,829 46 SWPPP MAINTENANCE AND INSPECTIONS 0 Brown 48 312000 EARTHWORK 0 34,552 50 LIME STABILIZATION 0 52 313116 TERMITE CONTROL 0 54 316329 DRILLED CONCRETE PIERS 0 56 321313 ASPHALTIC PAVING 0 58 321313 CONCRETE PAVING 0 60 321723 PAVEMENT MARKING 0 By Owner 62 321723 SUNBELT POOL DESIGN FEES 0 Sunbelt 64 SUNBELT POOL,POOL EQUIPMENT ETC TURNKEY 0 1,369,988 Cisco 66 323113 CHAIN LINK FENCING&GATES 0 69,940 Fire Fighters 68 LANDSCAPE&IRRIGATION 0 8,500 70 OFF SITE UTILITIES 0 San Saba 72 SITE UTILITIES 0 5,900 Reliacrete 74 033000 CONCRETE 0 207,300 Butter 76 042000 CMU MASONRY 0 56,510 78 042000 BRICK MASONRY 0 80 042000 STONE VENEER MASONRY 0 Cisco 82 051200-053100 STRUCTURAL STEEL-FAB 0 23,050 84 STRUCTURAL STEEL-ERECTION 0 86 054000 COLD FORMED METAL FRAMING 0 88 055000 METAL FABRICATIONS 0 90 055213 HANDRAILS AND RAILING 0- 9211 061000 ROUGH CARPENTRY 0 94 062013 FINISH CARPENTRY&MILLWORK 0 96 WATERPROOFING&DAMPPROOFING 0 A B C D E I P R ,,,/D�(W B KIBLER CONSTRUCTION CO.,LTD. GENERAL CONTRACTORS Retail Educational lndu.ulal Medical Office Rr6glo;: PROJECT:SOUTHEAST MCDONALD YMCA GMP RECAP BID DATE: 20-Oct-2016 LOCATION:FT WORTH,TEXAS BLDG SF: 9:36 AM TOTAL PROPOSED AMOUNT: Breakout Cost Pool Area SECTION ITEM QUANTITY F TOTAL incl.RR 98 BATT INSULATION p 100 EXPANSION JOINT 0 102 077200 SHEET METAL FLASHINGAND TRIM 0 Sterling 104 075300 SINGLE PLY FLEX MEMBRANE ROOFING SYSTEM 60 Mil 20 Year NDL 0 15,500 106 STANDING SEAM METAL ROOF 0 108 077200 ROOFACCESSORIES 0 110 078400 FIRE STOPPING 0 Sealant 112 079200 JOINT SEALANTS 0 1,704 Conc Preservation 114 POLISHED CONCRETE FLOOR 10,636 SF 0 910 116 081113 HM DOORS&FRAMES 0 EA 0 118 DOORS LABOR 66 EA 18,810 120 083313-083326 COILING COUNTER/OVERHEAD DOORS 0 122 084113 ALUMINUM FRAMED ENTRANCES AND STOREFRONT 0 124 087100 DOOR HARDWARE 0 AB Glass 126 088000 GLAZING 0 5,000 128 STUCCO/EIFS 0 NTX 130 092900 GYPSUM BOARD 0 500 132 093013 CERAMICTILING 0 134 095123 ACOUSTICAL TILE CEILINGS 0 136 096500 WOOD FLOORING 0 138 RUBBER SPORTS FLOORING 0 140 RESILIENT FLOORING 0 DD&F 142 CARPET 0 500 Burns&Parks 146 099123 PAINTING 0 10,200 148 101100 VISUAL DISPLAY BOARDS/ PROJECTION SCREEN 0 150 101400 IDENTIFYING DEVICES AND GRAPHICS 0 Duron 152 102113 PLASTIC TOILET COMPARTMENTS 0 12,400 154 WALL&CORNER GUARDS 0 Duron 156 102800 TOILET ACCESSORIES 0 1,150 Duron 158 104416 FIRE EXTINGUISHERS&CABINETS 0 500 160 105113 LOCKERS 0 Industrial Louvers 162 LOUVERS 0 3,461 164 KNOX BOX 0 166 FLAGPOLES 0 168 107300 EXTRUDED ALUMINIUM WALKWAYS 0 170 116600 ATHLETIC EQUIPMENT 0 172 RAQUETBALLCOURT 0 174 PLAYGROUND EQUIPMENT AND SHADE STRUCTURE 0 176 BLINDS 0 178 BICYCLE RACKS 0 180 ELEVATORS 0 182 210000 FIRE SUPPRESSION 36,723 SF 0 MPI 184 220500-224500 PLUMBING 0 68,000 Venture 186 230500-238239 HVAC Q 3,000 Riddle 188ELECTRICAL 0 82,450 190 260500-266000 FIREALARM 0 A B C D E I P R y�NCC/ WBKWB KIBLER CONSTRUCTION CO.,LTD. GENERAL CONTRACTORS 19�� RetaB Edt—ional lndutldel Mediad Oftict,':0'ryo.a PROJECT:SOUTHEAST MCDONALD YMCA GMP RECAP BID DATE: 20-Oct-2016 LOCATION:FT WORTH,TEXAS BLDG SF: 9:36 AM TOTAL PROPOSED AMOUNT: Breakout Cost Pool Area SECTION ITEM QUANTITY TOTAL Ind.RR 198 0 200 0 202 0 204 0 206 0 208 SUBTOTALS 0 2,081,120 210 OWNER'S PROTECTIVE 212 LIABILITY INSURANCE 1,718 GENERAL LIABILITY& 214 UMBRELLA INSURANCE 5,496 By Owner By Owner 216 BUILDING PERMIT 0 0 0 W1 BASE BID W1 BASE BID 218 IAGC FEES 0 0 0 220 BUILDER'S RISK INSURANCE 4,508 222 Blank 0 0 0 WBK PAYMENT& 224 PERFORMANCE BONDS 11,945 226 SUBTOTAL 0 2,092.842 228 OWNER CONTINGENCY 0 0 230 SUBTOTAL 0 2,104,767 232 CONSTRUCTION MANAGER CONTINGENCY 0 0 234 SUBTOTAL 0 2,104,787 236 IVVb KIBLER FEE 0 42,096 238 TOTAL PROPOSED AMOUNT $0 $ 2,146,883 240 EXHIBIT "C" DEBT FORGIVENESS SCHEDULE 20 YEARS DEBT FORGIVENESS SCHEDULE Forgiven Balance Year 1 $0 $2,300,000 Year 2 $0 $2,300,000 Year 3 $0 $253009000 Year 4 $0 $2,30000 Year 5 $1,150,000 $151505000 Year 6 $230,000 $9209000 Year 7 $230,000 $690,000 Year 8 $230,000 $4609000 Year 9 $230,000 $2309000 Year 10 $229,000 $1,000 Year 11 $100 $900 Year 12 $100 $800 Year 13 $100 $700 Year 14 $100 $600 Year 15 $100 $500 Year 16 $100 $400 Year 17 $100 $300 Year 18 $100 $200 Year 19 $100 $100 Year 20 $100 $0 Loan Agreement YMCA SE Aquatics Center Page 21 of 21 PROMISSORY NOTE Date: October 2016 Borrower: YMCA of Metropolitan Fort Worth, a Texas non-profit corporation Borrower's Mailing Address: YMCA of Metropolitan Fort Worth Attn: Executive Director 572 Lamar Street, Suite 400 Fort Worth, Texas 76102 Lender: City of Fort Worth, Texas, a Texas municipal corporation Place for Payment: C/O Assistant City Manager for Parks and Recreation Department 1000 Throckmorton St. Fort Worth, Tarrant County, TX 76102 or at any other place that Lender may designate in writing Principal Amount: $2,300,000.00 Loan Authority: The loan evidenced by this Note (the "Loan") is being made pursuant to the Loan Agreement entered into on even date between Lender and Borrower (City Secretary Contract Number 47756) (the "Contract"), as approved by the Fort Worth City Council on December 1, 2015 (M&C C-27548). Annual Interest Rate: 0% Maturity Date: as described in the Contract. Annual Interest Rate on Matured, Unpaid Amounts: 0% Terms of Payment (principal and interest): Capitalized terms not defined herein shall have meanings assigned to them in the Contract. The Principal Amount is a forgivable deferred payment amortized loan, forgivable in accordance with the debt forgiveness schedule attached hereto as Exhibit "A". Payment of the unforgiven portion of the Principal Amount will only be required if Borrower does not comply with the terms of the Contract, or the terms of this Note and any instrument evidencing or securing the Loan (collectively, the "Loan Documents"). This Note is the Note required in the Contract and has been executed and delivered in PROMISSORY NOTE Page I YMCA of Metropolitan Fort Worth Southeast Aquatics Center accordance with its terms. The Contract requires that Borrower fulfill certain requirements as more particularly defined in the Contract ("City Requirements"), including but not limited to: 1. Construction of the Improvements, as defined in the Contract, must be complete and the Improvements opened for use by February 1, 2018, with a one year extension allowable upon mutual written agreement; and 2. Measurables must be met to ensure the public purpose is fulfilled, including: a. A minimum number of Fort Worth residents to be served similar to any other City of Fort Worth aquatics facilities, availability and hours of operation, daily admission fees, private rentals, special events and use without a YMCA membership; and b. Provision of learn-to-swim programs. The Loan evidenced by this Note and the obligations described in the Contract pertaining to the City Requirements will be in default and the Principal Amount and any other sums due hereunder may be declared immediately payable if the City Requirements are not met and remedied, all as more particularly defined in the Contract. In the event of such default, Lender may invoke any remedies provided in the Contract or the Deed of Trust for default. On performance of the obligations described in the Contract and the terms and conditions of the Loan Documents, the Loan will be forgiven. Security for Payment: This Note is secured by a Deed of Trust of even date from Borrower to Leann D. Guzman, Trustee, or Tyler Wallach, Trustee, which covers the real propertyas more particularly described by metes and bounds on Exhibit "B", attached hereto for all purposes (the "Property"). Other Security for Payment: None If the Principal Amount is not forgiven, Borrower promises to pay to the order of Lender the Principal Amount. In that event, this Note is payable at the Place for Payment and according to the Terms of Payment. All unpaid amounts are due by the Maturity Date. After maturity, Borrower promises to pay any unpaid principal balance plus interest at the Annual Interest Rate on Matured, Unpaid Amounts. If Borrower defaults in the payment of this Note or in the performance of its obligations under the Contract or any other obligation in any instrument securing or collateral to this Note, Lender may declare the unpaid principal balance, earned interest, and any other amounts owed PROMISSORY NOTE Page 2 YMCA of Metropolitan Fort Worth Southeast Aquatics Center on the Note immediately due and payable. Borrower and each surety, endorser, and guarantor waive all demand for payment, presentation for payment, notice of intention to accelerate maturity, notice of acceleration of maturity, protest, and notice of protest, to the extent permitted by law. Notwithstanding anything to the contrary, if an event of default occurs under the terms of any of the Loan Documents, prior to exercising any remedies Lender shall give Borrower written notice of such default. Borrower shall have a period of 30 days after such notice is given within which to cure the default prior to exercise of remedies by Lender under the Loan Documents, provided, however, that (i) if Borrower reasonably cannot perform or comply with any such obligation within such thirty (30) day period and if, in Lender's reasonable judgment, Lender's security will not be impaired, then Borrower may have such additional time to rectify such failure as Borrower reasonably may require, provided and for so long as Borrower proceeds with due diligence, and (ii) if, in Lender's reasonable judgment, Lender's security will be impaired if Borrower does not perform or comply with any such obligation in a period of less than thirty (30) days, Borrower will have only such period (if any) following demand in which to rectify such failure as Lender may reasonably specify. Borrower also promises to pay reasonable attorney's fees and court and other costs if this Note is placed in the hands of an attorney to collect or enforce the Note. These expenses will bear interest from the date of advance at the Annual Interest Rate on Matured, Unpaid Amounts. Borrower will pay Lender these expenses and interest on demand at the Place for Payment. These expenses and interest will become part of the debt evidenced by the Note and will be secured by any security for payment. Interest on the debt evidenced by this Note will not exceed the maximum rate or amount of non-usurious interest that may be contracted for, taken, reserved, charged, or received under law. Any interest in excess of that maximum amount will be credited on the Principal Amount or, if the Principal Amount has been paid, refunded. On any acceleration or required or permitted prepayment, any excess interest will be canceled automatically as of the acceleration or prepayment or, if the excess interest has already been paid, credited on the Principal Amount or, if the Principal Amount has been paid, refunded. This provision overrides any conflicting provisions in this Note and all other instruments concerning the debt. Each Borrower is responsible for all obligations represented by this Note. When the context requires, singular nouns and pronouns include the plural. The execution and delivery of this Note are required under the Contract. If any provision of this Note conflicts with any provision of the Contract, the Deed of Trust or any other document evidencing the same transaction between Lender and Borrower, the provisions of the Contract will govern to the extent of the conflict. Capitalized terms not defined herein shall have meanings assigned to them in the Contract. PROMISSORY NOTE Page 3 YMCA of Metropolitan Fort Worth Southeast Aquatics Center This Note will be construed under the laws of the state of Texas without regard to choice-of-law rules of any jurisdiction. This Note is a nonrecourse obligation of Borrower. Neither Borrower nor any other party shall have any personal liability for repayment of the Loan described in the Contract. The sole recourse of Lender under the Loan Documents for repayment of the Loan shall be the exercise of its rights against the Security for Payment. THE CONTRACT, THE NOTE AND THE DEED OF TRUST CONSTITUTE THE FINAL AGREEMENT OF THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. YMCA OF METROPOLITAN FORT WORTH, A Texas Non-Profit Corpora Io" By: Nam . nl GLl Title: 221I e"t T 19 C/ PROMISSORY NOTE Page 4 YMCA of Metropolitan Fort Worth Southeast Aquatics Center EXHIBIT "A" Debt Forgiveness Schedule 20 YEARS DEBT FORGIVENESS SCHEDULE Forgiven Balance Year 1 $0 $29300,000 Year 2 $0 $2,300,000 Year 3 $0 $253009000 Year 4 $0 $2,3005000 Year 5 $1,150,000 $1,150,000 Year 6 $230,000 $9205000 Year 7 $230,000 $6905000 Year 8 $230,000 $4605000 Year 9 $230,000 $2305000 Year 10 $2295000 $1,000 Year 11 $100 $900 Year 12 $100 $800 Year 13 $100 $700 Year 14 $100 $600 Year 15 $100 $500 Year 16 $100 $400 Year 17 $100 $300 Year 18 $100 $200 Year 19 $100 $100 Year 20 $100 $0 PROMISSORY NOTE Page 5 YMCA of Metropolitan Fort Worth Southeast Aquatics Center EXHIBIT "B" Legal Description (to be attached) PROMISSORY NOTE Page 6 YMCA of Metropolitan Fort Worth Southeast Aquatics Center i i EXHIBIT "B" LAND DESCRIPTION 4 i BEING a tract of land situated in the J. Justice Survey, Abstract No. 859, Tarrant County, Texas and being a portion of Lot 1R1, Block 1 of the Mason Heights Addition, an addition to the City of Fort Worth as recorded in Document No. D215133856 of the Plat Records, Tarrant County, Texas (P.R.T.C.T.); COMMENCING at a 1/2 inch iron rod found with plastic cap stamped "WAI" at the northwest corner of a right-of-way corner clip at the intersection of the northerly right-of-way of Moresby Street (a variable width right-of-way) as recorded in Document No. D212201535 (P.R.T.C.T.) and the easterly right-of-way line of Mitchell Boulevard (a 100 foot right-of-way, deed of record not found); THENCE, along the easterly right-of-way line of said Mitchell Boulevard, North 00 degrees 11 minutes 35 seconds West a distance of 128.50 feet to a 5/8 inch iron rod set with plastic cap stamped "Huitt-Zollars" at the POINT OF BEGINNING; THENCE, continuing along the easterly right-of-way line of said Mitchell Boulevard, North 00 degrees 11 minutes 35 seconds West a distance of 152.00 feet to a 5/8 inch iron rod set with plastic cap stamped "Huitt-Zollars"; THENCE, departing the easterly right-of-way line of said Mitchell Boulevard, North 89 degrees 48 minutes 25 seconds East a distance of 195.09 feet to a 5/8 inch iron rod set with plastic cap stamped "Huitt-Zollars"; THENCE, South 00 degrees 11 minutes 35 seconds East a distance of 152.00 feet to a 5/8 inch iron rod set with plastic cap stamped"Huitt-Zollars"; THENCE, South 89 degrees 48 minutes 25 seconds West a distance of 195.09 feet to the POINT OF BEGINNING and containing 29,654 square feet of land or 0.6808 of an acre of land, more or less. For Huitt-Z. liars, I o r r itc ell S. Pillar � �otisT� Fo f� Registered Professional Land Surveyor co"! Texas Registration No. 5491 MITCHELL.SF.(".JN,F?ILLAR Huitt-Zollars, Inc. 5401 Firm Registration No. 10025600 `1'D su4\`�t'-1 1717 McKinney Avenue, Suite 1400 , Dallas, Texas 75202 Ph. (214) 871-3311 Date: September 20, 2016 Page 1 of 2 J:\Survey\30047802 -YMCA Moresby Street\wp\Pool Area LAND DESCRIPTION.doc BASIS OF BEARING: TEXAS STATE PLANE COORDINATE SYSTEM, N.A.D. 83, NORTH CENTRAL ZONE (4202). IRS N 89048'25" E 195,09' IRs SCALE: 1'-50' I z C) C/) 1 0 0 I o (0,6808 ACRES) m I 1 Q Q N W dCn N O m q POINT OF BEGINNING c� 1 w0� C) IRS S 89048'25"W 195.09' IRS z 1§ MASON HEIGHTS ADDITION 1Pt D215133866 1 P.R.T.C.T. 1 1 LOT 1R1, BLOCK 1 1 1 PRIVATE III DRAINAGE EASEMENT i 111816 A POINT OF COMMENCING PR5T,C.T. �, P,R.T,C.T. ' 1/2"IRF WIWAI CAP I MORESBY STREET (VARIABLE WIDTH RIGHT-OF-WAY) D212201535 P.R.T.C.T. IRS-5/8 INCH IRON ROD SET WITH PLASTIC CAP STAMPED "HUITT-ZOLLARS" HUITT-27DLLARS EXHIBIT MAP 0.6808 ACRES OUT OF THE Huitt-Zollars,Inc. Dallas J. JUSTICE SURVEY, 1717 McKinney Avenue,Suite 1400 ABSTRACT No, 859 Dallas,Texas 75202-1236 Phone(214)871-3311 Fax(214)871-0757 TARRANT COUNTY, TEXAS PAGE 2 OF 2 NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. Deed of Trust to Secure Payment and Performance Security Agreement - Financing Statement City Funds Terms Date: (xA . 2l0 , 2016 Grantor: YMCA of Metropolitan Fort Worth, a Texas nonprofit corporation Grantor's Mailing Address: YMCA of Metropolitan Fort Worth Attn: Executive Director 572 Lamar Street, Suite 400 Fort Worth, Texas 76102 Trustee: Leann D. Guzman or Tyler Wallach Trustee's Mailing Address: City Attorney's Office City of Fort Worth 1000 Throckmorton St. Fort Worth TX 76102 Tarrant County Lender: City of Fort Worth, a Texas municipal corporation Lender's Mailing Address: City of Fort Worth Park and Recreation Department Attention: Director 1000 Throckmorton Street Fort Worth, Texas 76102 Tarrant County DEED OF TRUST—CITY FUNDS Page 1 YMCA SE Aquatics Center Rev. 06-05-15 Loan Authority: The loan evidenced by the Note (the "Loan") and secured by this Deed of Trust Security Agreement — Financing Statement ("Deed of Trust") is being made pursuant to the Loan Agreement entered into on even date between Lender and Borrower (City Secretary Contract Number 47756) (the "Contract"), as approved by the Fort Worth City Council on December 1, 2015 (M&C C-27548), and the Promissory Note of even date herewith. The Loan, Deed of Trust, and Contract are referred to herein collectively as the "Loan Documents". Obligations Note Date: QQ+&Wr 26► , 2016 Original Principal Amount: $2,300,000.00 Borrower: YMCA of Metropolitan Fort Worth Lender: City of Fort Worth Terms of Payment: As provided in the Note Maturity Date: As provided in the Contract Property (including any improvements): As more particularly described in the attached Exhibit "A", incorporated herein for all purposes. Together with the following personal property: All fixtures, supplies, building materials, and other goods of every nature now or hereafter located, used, or intended to be located or used on the Property; All plans and specifications for development of or construction of improvements on the Property; All contracts and subcontracts relating to the construction of improvements on the Property; All accounts, contract rights, instruments, documents, general intangibles, and chattel paper arising from or by virtue of any transactions relating to the Property; All permits, licenses, franchises, certificates, and other rights and privileges obtained in connection with the Property; All proceeds payable or to be payable under each policy of insurance relating to the Property; and All products and proceeds of the foregoing. Notwithstanding any other provision in this Deed of Trust, the term 'Property" does not include personal effects used primarily for personal, family, or household purposes. In addition to creating a deed-of-trust lien on the Property described, Grantor also grants to Lender a security interest in all of the above-described personal property pursuant to and to the extent permitted by the Texas Uniform Commercial Code. DEED OF TRUST—CITY FUNDS Page 2 YMCA SE Aquatics Center Rev. 06-05-15 Prior Liens: None Other Exceptions to Conveyance and Warranty: Easements, rights-of-way, and prescriptive rights, whether of record or not; all presently recorded and validly existing recorded instruments other than conveyances of the surface fee estate that affect the Property; liens described in this Deed of Trust; and, taxes for the current year. For value received and to secure performance of the Obligations, Grantor conveys the Property to Trustee in trust. Grantor warrants and agrees to defend the title to the Property, subject to the Other Exceptions to Conveyance and Warranty. On performance of the Obligations including payment of the Loan if required by the Note and Contract and all other amounts secured by this Deed of Trust, this Deed of Trust will have no further effect, and Lender will release it at Grantor's expense. Clauses and Covenants A. Grantor's Obligations Grantor agrees to- t. keep the Property in good condition and repair; 2. pay all taxes and assessments on the Property before delinquency, and not authorize a taxing entity to transfer its tax lien on the Property to anyone other than Lender; 3. � defend title to the Property subject to the Other Exceptions to Conveyance and Warranty and preserve the lien's priority as it is established in this Deed of Trust; 4. obey all laws, ordinances, and restrictive covenants applicable to the Property; 5. maintain all insurance coverages with respect to the Property, revenues generated by the Property, and operations on the Property that Lender reasonably requires ("Required Insurance Coverages"), issued by insurers and written on policy forms acceptable to Lender, and deliver evidence of the Required Insurance Coverages in a form acceptable to Lender at least 10 days before the expiration of the Required Insurance Coverages. 6. keep any buildings occupied as required by the Required Insurance Coverages; 7. obey all laws, ordinances, and restrictive covenants applicable to the Property; DEED OF TRUST—CITY FUNDS Page 3 YMCA SE Aquatics Center Rev. 06-05-15 8. if the lien of this Deed of Trust is not a first lien, pay or cause to be paid all prior lien notes pursuant to their respective terms and abide by or cause to be abided by all prior lien instruments; 9. notify Lender in writing of any change of address; and 10. perform and fulfill certain requirements as more particularly defined in the Contract, including but not limited to: 1. Construction of the Improvements, as defined in the Contract, must be complete and the Improvements opened for use by February 1, 2018, with a one year extension allowable upon mutual written agreement; and 2. Measurables must be met to ensure the public purpose is fulfilled, including: a. A minimum number of Fort Worth residents to be served similar to any other City of Fort Worth aquatics facilities, availability and hours of operation, daily admission fees, private rentals, special events and use without a YMCA membership; and b. Provision of learn-to-swim programs. Grantor agrees not to do or permit anything to be done that will impair the security of this Deed of Trust. B. Lender's Rights 1. Lender or Lender's mortgage servicer may appoint in writing a substitute trustee, succeeding to all rights and responsibilities of Trustee. 2. If the proceeds of the Loan are used to pay any debt secured by prior liens, Lender is subrogated to all the rights and liens of the holders of any debt so paid. 3. Notwithstanding the terms of the Note to the contrary, and unless applicable law prohibits, all payments received by Lender from Grantor with respect to the Obligations or this Deed of Trust may, at Lender's discretion, be applied first to amounts payable under this Deed of Trust and then to amounts due and payable to Lender with respect to the Obligations, to be applied to late charges, principal, or interest in the order Lender in its discretion determines. 4. If Grantor fails to perform any of Grantor's Obligations under this Deed of Trust, subject to prior written notice and cure period, Lender may perform those obligations and be reimbursed by Grantor on demand for any amounts so paid, including reasonable attorney's fees, plus interest on those amounts from the dates of payment at DEED OF TRUST—CITY FUNDS Page 4 YMCA SE Aquatics Center Rev. 06-05-15 the rate stated in the Note for matured, unpaid amounts. The amount to be reimbursed will be secured by this Deed of Trust. 5. If there is a default on the Obligations or if Grantor fails to perform any of Grantor's Obligations under this Deed of Trust and the default continues after any required notice of the default and the time allowed to cure, Lender may- a. declare any unforgiven principal balance and earned interest on the Obligations immediately due; b. exercise Lender's rights with respect to rent under the Texas Property Code as then in effect; c. direct Trustee to foreclose this lien, in which case Lender or Lender's agent will cause notice of the foreclosure sale to be given as provided by the Texas Property Code as then in effect; and d. purchase the Property at any foreclosure sale by offering the highest bid and then have the bid credited on the Obligations. Notwithstanding anything to the contrary, if an event of default occurs under the terms of any of the Loan Documents, prior to exercising any remedies Lender shall give Borrower written notice of such default. Borrower shall have a period of 30 days after such notice is given within which to cure the default prior to exercise of remedies by Lender under the Loan Documents, provided, however, that (i) if Borrower reasonably cannot perform or comply with any such obligation within such thirty (30) day period and if, in Lender's reasonable judgment, Lender's security will not be impaired, then Borrower may have such additional time to rectify such failure as Borrower reasonably may require, provided and for so long as Borrower proceeds with due diligence, and (ii) if, in Lender's reasonable judgment, Lender's security will be impaired if Borrower does not perform or comply with any such obligation in a period of less than thirty (30) days, Borrower will have only such period (if any) following demand in which to rectify such failure as Lender may reasonably specify Notices given to Grantor shall be in writing and delivered to the address listed above, or to such other address as Grantor designates by written notice to Lender. Each such notice or other communication shall be effective on the date of receipt when sent by U. S. Mail, postage prepaid, by certified mail, return receipt requested or by a nationally recognized overnight delivery service. 6. Lender may remedy any default without waiving it and may waive any default without waiving any prior or subsequent default. C. Trustee's Rights and Duties If directed by Lender to foreclose this lien, Trustee will- DEED OF TRUST—CITY FUNDS Page 5 YMCA SE Aquatics Center Rev. 06-05-15 I. either personally or by agent give notice of the foreclosure sale as required by the Texas Property Code as then in effect; 2. sell and convey all or part of the Property "AS IS" to the highest bidder for cash with a general warranty binding Grantor, subject to the Prior Lien and to the Other Exceptions to Conveyance and Warranty and without representation or warranty, express or implied, by Trustee; 3. from the proceeds of the sale, pay, in this order- a. expenses of foreclosure, including a reasonable commission to Trustee; b. to Lender, the full amount of principal, interest, reasonable attorney's fees, and other charges due and unpaid; C. any amounts required by law to be paid before payment to Grantor; d. to Grantor, any balance; and 4. be released by Lender against all costs, expenses, and liabilities incurred by Trustee for acting in the execution or enforcement of the trust created by this Deed of Trust, which includes all court and other costs, including reasonable attorney's fees, incurred by Trustee in defense of any action or proceeding taken against Trustee in that capacity. D. General Provisions 1. If any of the Property is sold under this Deed of Trust, Grantor must immediately surrender possession to the purchaser. If Grantor fails to do so, Grantor will become a tenant at sufferance of the purchaser, subject to an action for forcible detainer. Further, in the event of foreclosure by City in accordance with its rights in the Loan Documents, the parties acknowledge that the change in ownership of the Property will trigger a platting requirement for the Property, and YMCA shall, at its sole cost and expense, pay for or reimburse the City for all expenses and costs related to the platting of the property, and shall cooperate with City to obtain an approved final plat, whether before the transfer of ownership to City or, as necessary, after the transfer. 2. Recitals in any trustee's deed conveying the Property will be presumed to be true, absent evidence to the contrary. 3. Proceeding under this Deed of Trust, filing suit for foreclosure, or pursuing any other remedy will not constitute an election of remedies. DEED OF TRUST—CITY FUNDS Page 6 YMCA SE Aquatics Center Rev. 06-05-15 4. This lien will remain superior to liens later created even if the time of payment of all or part of the Obligations is extended or part of the Property is released, unless a subordination agreement is executed by the Lender. 5. If any portion of the Obligations cannot be lawfully secured by this Deed of Trust, payments will be applied first to discharge that portion. 6. Grantor assigns to Lender all amounts payable to or received by Grantor from condemnation of all or part of the Property, from private sale in lieu of condemnation, and from damages caused by public works or construction on or near the Property. After deducting any expenses incurred, including reasonable attorney's fees and court and other costs, Lender will either release any remaining amounts to Grantor or apply such amounts to reduce the Obligations and any excess proceeds shall be paid to Grantor. Lender will not be liable for failure to collect or to exercise diligence in collecting any such amounts. Grantor will immediately give Lender notice of any actual or known threatened proceedings for condemnation of all or part of the Property. Notwithstanding the above, in the event of any fire or other casualty to the Property or eminent domain proceedings resulting in condemnation of the Property or any part thereof, Grantor shall have the right to rebuild the Property, and to use all available insurance or condemnation proceeds therefore,provided that(a) such proceeds are sufficient to keep the Obligations in balance and rebuild the Property in a manner that provides adequate security to Lender for repayment or performance of the Obligations or if such proceeds are insufficient then Grantor shall have funded any deficiency, (b) subject to the rights of senior lien holders, Lender shall have the right to approve plans and specifications for any major rebuilding and the right to approve disbursements of insurance or condemnation proceeds for rebuilding under a construction escrow or similar arrangement, and (c) no material default then exists under the Loan documents other than attributable to casualty or condemnation. If the casualty or condemnation affects only part of the Property and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the Obligations in a manner that provides adequate security to Lender for repayment of the remaining balance of the Obligations, and any excess proceeds shall be paid to Grantor. 7. Grantor assigns to Lender absolutely, not only as collateral, all present and future rent and other income and receipts from the Property. Grantor may as Lender's licensee collect rent and other income and receipts as long as Grantor is not in default with respect to the Obligation or this Deed of Trust. Subject to the terms of the Loan documents, Grantor will apply all rent and other income and receipts to payment of the Obligations and performance of this Deed of Trust, but if the rent and other income and receipts exceed the amount due with respect to the Obligations and the Deed of Trust, Grantor may retain the excess. If Grantor defaults in payment or performance of the Obligations or performance of this Deed of Trust, subject to the rights of senior lien holders, Lender may terminate Grantor's license to collect rent and other income and then as Grantor's agent may rent the Property and collect all rent and other income and receipts. Lender neither has nor assumes any obligations as lessor or landlord with DEED OF TRUST—CITY FUNDS Page 7 YMCA SE Aquatics Center Rev. 06-05-15 respect to any occupant of the Property. Lender may exercise Lender's rights and remedies under this paragraph without taking possession of the Property. Lender will apply all rent and other income and receipts collected under this paragraph as required by the Texas Property Code then in effect. Lender is not required to act under this paragraph, and acting under this paragraph does not waive any of Lender's other rights or remedies. 8. Interest on the debt secured by this Deed of Trust will not exceed the maximum amount of non-usurious interest that may be contracted for, taken, reserved, charged, or received under law. Any interest in excess of that maximum amount will be credited on the principal of the debt or, if that has been paid, refunded. On any acceleration or required or permitted prepayment, any excess interest will be canceled automatically as of the acceleration or prepayment or, if already paid, credited on the principal of the debt or, if the principal of the debt has been paid, refunded. This provision overrides any conflicting provisions in this and all other instruments concerning the debt. 9. In no event may this Deed of Trust secure payment of any debt that may not lawfully be secured by a lien on real estate or create a lien otherwise prohibited by law. 10. When the context requires, singular nouns and pronouns include the plural. 11. The term Note includes all extensions, modifications, and renewals of the Note and all amounts secured by this Deed of Trust. 12. Grantor agrees to (a) keep at Grantor's address, or such other place as Lender may approve, accounts and records reflecting the operation of the Property and copies of all written contracts, leases, and other instruments that affect the Property; (b) prepare financial accounting records in compliance with generally accepted accounting principles consistently applied; and, (c) at Lender's request on reasonable notice from time to time, permit Lender to examine and make copies of such books, records, contracts, leases, and other instruments at any reasonable time. 13. Grantor agrees to deliver to Lender, at Lender's request from time to time, internally prepared financial statements of Grantor and any guarantor of the Note prepared in accordance with generally accepted accounting principles consistently applied, in detail reasonably satisfactory to Lender and certified to be materially true and correct by the chief financial officer of Grantor or its certified public accountant, as applicable. 14. If Lender orders an appraisal of the Property while a default exists or to comply with legal requirements affecting Lender, Grantor, at Lender's request, agrees to reimburse Lender for the reasonable cost of any such appraisal. If Grantor fails to DEED OF TRUST—CITY FUNDS Page 8 YMCA SE Aquatics Center Rev. 06-05-15 reimburse Lender for any such appraisal within 20 days of Lender's written request, that failure is a default under this Deed of Trust. 15. Grantor agrees to allow Lender or Lender's agents to enter the Property during regular business hours upon at least 48 hours prior notice and inspect it and any personal property in which Lender is granted a security interest by this Deed of Trust. 16. Grantor may not sell, transfer, or otherwise dispose of any Property, whether voluntarily or by operation of law, except for condemnation or to obtain utility easements, without the prior written consent of Lender. If granted, consent may be conditioned upon (a) the grantee's integrity, reputation, character, creditworthiness, and management ability being satisfactory to Lender; and (b) the grantee's executing, before such sale, transfer, or other disposition, a written assumption agreement containing any terms Lender may reasonably require, such as a principal pay down on the Obligations, an increase in the rate of interest payable with respect to the Obligations, a transfer fee, or any other modification of the Note, this Deed of Trust, or any other instruments evidencing or securing the Obligations. Grantor may not cause or permit any Property to be encumbered by any liens, security interests, or encumbrances other than (i) the liens securing the Obligation, (ii) the liens securing ad valorem taxes not yet due and payable, (iii) the Permitted Exceptions, (iv) the subordinate lien securing Grantor's New Market Tax Credits ("NMTC Lien") without the prior written consent of Lender. If granted, consent may be conditioned upon Grantor's executing, before granting such lien, a written modification agreement containing any terms Lender may require, such as a principal pay down on the Obligations, an increase in the rate of interest payable with respect to the Obligations, an approval fee, or any other modification of the Note, this Deed of Trust, or any other instruments evidencing or securing the Obligations. Grantor may not grant any lien, security interest, or other encumbrance (a "Subordinate Instrument") covering the Property that is subordinate to the liens created by this Deed of Trust other than the NMTC Lien without the prior written consent of Lender If granted, consent for loans and documents may be conditioned upon the Subordinate Instrument's containing express covenants to the effect that- a. the Subordinate Instrument is unconditionally subordinate to this Deed of Trust; b. if any action is instituted to foreclose or otherwise enforce the Subordinate Instrument, no action may be taken that would terminate any occupancy or tenancy without the prior written consent of Lender, and that consent, if granted, may be conditioned in any manner Lender determines; DEED OF TRUST—CITY FUNDS Page 9 YMCA SE Aquatics Center Rev. 06-05-15 C. rents, if collected by or for the holder of the Subordinate Instrument, will be applied first to the payment of the Obligations then due and to expenses incurred in the ownership, operation, and maintenance of the Property in any order Lender may determine, before being applied to any indebtedness secured by the Subordinate Instrument; d. written notice of default under the Subordinate Instrument and written notice of the commencement of any action to foreclose or otherwise enforce the Subordinate Instrument must be given to Lender concurrently with or immediately after the occurrence of any such default or commencement; and e. in the event of the bankruptcy of Grantor, all amounts due on or with respect to the Obligations and this Deed of Trust will be payable in full before any payments on the indebtedness secured by the Subordinate Instrument. Grantor may not cause or permit any of the following events to occur without the prior written consent of Lender: if Grantor is (a) a corporation, the dissolution of the corporation or the sale, pledge, encumbrance, or assignment of any shares of its stock; (b) a limited liability company, the dissolution of the company or the sale, pledge, encumbrance, or assignment of any of its membership interests, other than an assignment to a senior lien holder or to the Investor Member; (c) a general partnership or joint venture, the dissolution of the partnership or venture or the sale, pledge, encumbrance, or assignment of any of its partnership or joint venture interests, or the withdrawal from or admission into it of any general partner or joint venturer; or (d) a limited partnership, (1) the dissolution of the partnership, (2) the sale, pledge, encumbrance, or assignment of any of its general partnership interests, or the withdrawal from or admission into it of any general partner, or (3) except for a limited partnership interest in a low income housing project, the withdrawal from or admission into it of any controlling limited partner or partners. If granted, consent may be conditioned upon (a) the integrity, reputation, character, creditworthiness, and management ability of the person succeeding to the ownership interest in Grantor (or security interest in such ownership) being reasonably satisfactory to Lender; and (b) the execution, before such event, by the person succeeding to the interest of Grantor in the Property or ownership interest in Grantor (or security interest in such ownership) of a written modification or assumption agreement containing such terms as Lender may reasonably require, such as a principal pay down on the Obligations, an increase in the rate of interest payable with respect to the Obligations, a transfer fee, or any other modification of the Note, this Deed of Trust, or any other instruments evidencing or securing the Obligations. 17. Grantor agrees not to grant any future lien or security interest in the Property or to permit any future junior encumbrance to be recorded or any existing or future claim to otherwise become an encumbrance against the Property other than the NMTC Lien. If an involuntary encumbrance is filed against the Property, Grantor agrees, DEED OF TRUST—CITY FUNDS Page 10 YMCA SE Aquatics Center Rev. 06-05-15 within 30 days of actual notice, to either remove the involuntary encumbrance or insure against it or provide a bond acceptable to Lender against the involuntary encumbrance. 18. This Deed of Trust binds, benefits, and may be enforced by the successors in interest of all parties. 19. If Grantor and Borrower are not the same person, the term Grantor includes Borrower. 20. Except as may be specifically stated in this Deed of Trust or the Note, Grantor and each surety, endorser, and guarantor of the Obligations waive all demand for payment, presentation for payment, notice of intention to accelerate maturity, notice of acceleration of maturity, protest, and notice of protest, to the extent permitted by law. 21. Grantor agrees to pay reasonable attorney's fees, trustee's fees, and court and other costs of enforcing Lender's rights under this Deed of Trust if this Deed of Trust is placed in the hands of an attorney for enforcement. 22. If any provision of this Deed of Trust is determined to be invalid or unenforceable, the validity or enforceability of any other provision will not be affected. 23. The term Lender includes any mortgage servicer for Lender. 24. Grantor represents that this Deed of Trust and the Note are given for the following purposes: The debt evidenced by the Note is for the public purpose of providing quality, accessible and cost-effective aquatics opportunities to the residents of Fort Worth in accordance with the City of Fort Worth's 2015 Parks, Recreation and Open Space Master Plan and the 2008 City-Wide Aquatics Master Plan (as amended in 2012), and is for the payment of funds for the construction of a new full service aquatic facility in the southeast section of Fort Worth, specifically, on the Property, to be open to residents of Fort Worth in a manner similar to other City aquatics facilities. The debt is secured by the Deed of Trust. 25. If the Property is transferred by foreclosure, the transferee will acquire title to all insurance policies on the Property including all paid but unearned premiums. 26. Grantor is entitled to partial releases from the Deed of Trust as provided in the Contract between Grantor and Lender. E. Construction Loan Mortgage 1. This Deed of Trust is a "construction mortgage" within the meaning of Section 9.334 of the Texas Business and Commerce Code. The liens and security DEED OF TRUST—CITY FUNDS Page 11 YMCA SE Aquatics Center Rev. 06-05-15 interests created and granted by this Deed of Trust secure an obligation incurred for the construction or rehabilitation of improvements on land. 2. Grantor agrees to comply with the terms, covenants and conditions of the Contract, which require the Note and this Deed of Trust. All advances made by Lender under the Contract and Note will be indebtedness of Grantor secured by the liens created by this Deed of Trust, and such advances are conditioned as provided in the Note and Contract. 3. All amounts disbursed by Lender before completion of the improvements to protect the security of this Deed of Trust up to the principal amount of the Note will be treated as disbursements under the Note. All such amounts will bear interest from the date of disbursement at the rate stated in the Note, unless collections from Grantor of interest at that rate would be contrary to applicable law, in which event such amounts will bear interest at the rate stated in the Note for matured, unpaid amounts and will be payable on notice from Lender to Grantor requesting payment. 4. From time to time as Lender deems reasonably necessary to protect Lender's interests, Grantor will, on request of Lender, execute and deliver to Lender, in such form as Lender directs but subject to the rights of any senior lien holders, assignments of any and all rights or claims that relate to the construction of improvements on the Property. 5. In case of breach by Grantor of the terms, covenants and conditions of the Contract, Lender, at its option, subject to applicable notice, grace and cure periods, with or without entry on the Property, may (a) invoke any of the rights or remedies provided in the Contract, (b) accelerate the amounts secured by this Deed of Trust and invoke the remedies provided in this Deed of Trust, or(c) do both. F. THIS CONVEYANCE IS MADE AND ACCEPTED SUBJECT TO THE FOLLOWING CONDITIONS AND RESTRICTIONS: The Note secured by this Deed of Trust is the Note required in the Contract between Grantor and Lender and has been executed and delivered in accordance with the Contract's terms. Grantor agrees to perform each and every obligation set forth therein and will not permit a default to occur thereunder. Any default in the performance of Grantor's obligations under the terms of the Contract shall be deemed a default in the terms of the Note and Lender may invoke any remedies provided herein for default. IF ANY PROVISION OF THIS DEED OF TRUST CONFLICTS WITH ANY PROVISION OF THE CONTRACT, THE NOTE OR ANY OTHER DOCUMENT EVIDENCING THE SAME TRANSACTION BETWEEN LENDER AND BORROWER, THE PROVISIONS OF THE CONTRACT WILL GOVERN TO THE EXTENT OF THE CONFLICT. DEED OF TRUST—CITY FUNDS Page 12 YMCA SE Aquatics Center Rev. 06-05-15 THE CONTRACTS, THE NOTE AND THE DEED OF TRUST CONSTITUTE THE FINAL AGREEMENT OF THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. YMCA OF METROPOLI FORT WORTH, a Texas t cc ra 'on By: Name: Title: f i C�fJ STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on 6C-E-a12er (P , 2016 by_ 16 A�� h n2 Q�� , the `F-1; cue+,--J- /C� of YMCA of Metropolitan Fort Worth, a Texas nonprofit corporation, oJJn��behalf of such corporation. ." CAROLINE D. ROPER :'; Ms Notary PublIC,State of Texas Notary Public, State of Te as ;"rte Pic Comm.Expires 11-19-2017 +ate Notary ID 1104487.1 AFTER RECORDING RETURN TO: City of Fort Worth City Attorney's Office Attention: Leann D. Guzman 1000 Throckmorton Street Fort Worth, Texas 76102 DEED OF TRUST—CITY FUNDS Page 13 YMCA SE Aquatics Center Rev. 06-05-15 Exhibit "A" DEED OF TRUST—CITY FUNDS Page 14 YMCA SE Aquatics Center Rev. 06-05-15 i i EXHIBIT "A" I LAND DESCRIPTION BEING a tract of land situated in the J. Justice Survey, Abstract No. 859, Tarrant County, Texas and being a portion of Lot 1R1, Block 1 of the Mason Heights Addition, an addition to the City of Fort Worth as recorded in Document No. D215133856 of the Plat Records, Tarrant County, Texas (P.R.T.C.T.); COMMENCING at a 1/2 inch iron rod found with plastic cap stamped "WAI"at the northwest corner of a right-of-way corner clip at the intersection of the northerly right-of-way of Moresby Street(a variable width right-of-way) as recorded in Document No. D212201535 (P.R.T.C.T.) and the easterly right-of-way line of Mitchell Boulevard (a 100 foot right-of-way, deed of record not found); THENCE, along the easterly right-of-way line of said Mitchell Boulevard, North 00 degrees 11 minutes 35 seconds West a distance of 128.50 feet to a 5/8 inch iron rod set with plastic cap stamped "Huitt-Zollars" at the POINT OF BEGINNING; THENCE, continuing along the easterly right-of-way line of said Mitchell Boulevard, North 00 degrees 11 minutes 35 seconds West a distance of 152.00 feet to a 5/8 inch iron rod set with plastic cap stamped "Huitt-Zollars"; THENCE, departing the easterly right-of-way line of said Mitchell Boulevard, North 89 degrees 48 minutes 25 seconds East a distance of 195.09 feet to a 5/8 inch iron rod set with plastic cap stamped "Huitt-Zollars"; THENCE, South 00 degrees 11 minutes 35 seconds East a distance of 152.00 feet to a 5/8 inch iron rod set with plastic cap stamped "Huitt-Zollars"; THENCE, South 89 degrees 48 minutes 25 seconds West a distance of 195.09 feet to the POINT OF BEGINNING and containing 29,654 square feet of land or 0.6808 of an acre of land, more or less. For Htiitt-Z llars, Ii OF T� itc ell S. Pillart�Qo�sTi roc-fs, Registered Professional Land Surveyor co"' ............ `!' Texas Registration No. 5491 MiTCHE .I-.1 ,PILLAR Huitt-Zollars, Inc. s' "� 5401 Firm Registration No. 10025600 �4'`r1 SU FJG�O� 1717 McKinney Avenue, Suite 1400 Dallas, Texas 75202 Ph. (214) 871-3311 Date: September 20, 2016 Page 1 of 2 J:\Survey\30047802 -YMCA Moresby Street\wp\Pool Area LAND DESCRIPTION.doc BASIS OF BEARING: TEXAS STATE PLANE COORDINATE SYSTEM, N.A.D. 83, NORTH CENTRAL ZONE (4202). IRS N 89048'25" E 195.09' IRS SCALE: V-50' Z C) Cn I 0 0 CDIO 0 (0.6808 ACRES) m I J tl O Co 4 POINT OF BEGINNING I w M - CD IRS S 89048'25"W 195.09' IRS v 2 O I4 MASON HEIGHTS ADDITION Ibi D215133856 P.R.T.C.T. I LOT 1R1, BLOCK 1 I ( PRIVATE I DRAINAGE EASEMENT D21111I 116 o POINT OF COMMENCING P,R,T. .T. i1, P.R,T.QT. 1/2"IRF W/WAI CAP MORESBY STREET (VARIABLE WIDTH RIGHT-OF-WAY) D212201535 P.R.T.C.T. IRS-5/8 INCH IRON ROD SET WITH PLASTIC CAP STAMPED "HUITT-ZOLLARS" HUFTF-z�—'UUARS EXHIBIT MAP 0.6808 ACRES OUT OF THE Huitt-Zollars,Inc. Dallas J. JUSTICE SURVEY, 1717 McKinney Avenue,Suite 1400 ABSTRACT No. 859 Dallas,Texas 75202-1236 Phone(214)871-3311 Fax(214)871-0757 TARRANT COUNTY, TEXAS PAGE 2 OF 2 M&C Review Page 1 of 3 Official site of the City of Fort Worth,Texas Aft FORTIVORTll ir COUNCIL ACTION: Approved on 12/1/2015 - Ordinance No. 21985-12-2015 DATE: 12/1/2015 REFERENCEC-27548LOG 80FORTWORTH&YMCA LOAN AGREEMENT NO.: NAME: — — CODE: C TYPE: NOW PUBLIC NO CONSENTHEARING: SUBJECT: Authorize the Expenditure in the Amount of$2,300,000.00 in the Form of a Forgivable Loan to the YMCA of Metropolitan Fort Worth for the Construction of a New Full Service Aquatic Facility, Authorize Execution of a Loan Agreement, Authorize the Execution of a Support Agreement and Adopt Appropriation Ordinance (COUNCIL DISTRICT 8) RECOMMENDATION: It is recommended that the City Council: 1. Authorize an expenditure in the amount of$2,300,000.00 in the form of forgivable loan to the YMCA of Metropolitan Fort Worth for the construction of a new full service aquatic facility in the southeast section of Fort Worth, to be open to residents of Fort Worth in a manner similar to other City aquatics facilities; 2. Authorize the execution of a Loan Agreement and any related documents with the YMCA of Metropolitan Fort Worth for a 20-year loan term beginning on the date that the aquatic facility is ready for public use; 3. Authorize any amendments to the Loan Agreement that may be necessary to achieve the project goals, provided that the amendments are within the scope of the project and in compliance with City policies and applicable laws and regulations; 4. Authorize the execution of a multi-year Support Agreement with the YMCA of Metropolitan Fort Worth to support the operation and maintenance of the new full service aquatic facility to: a. Provide an annual operating subsidy of$59,000.00 for a term of 20 years to begin in Fiscal Year 2017, with annual increases of two percent; and b. Contribute $12,000.00 per year to a long-term major maintenance reserve fund for a primary term of 10 years beginning in Fiscal Year 2017, with two five-year renewal options. 5. Adopt the attached appropriation ordinance increasing estimated receipts and appropriations in the Southeast Enhanced Neighborhood Family Aquatics Center Project of the General Capital Projects Fund in the amount of$2,300,000.00 from available funds; and 6. Find that execution of the loan and the corresponding Support Agreement serve to carry out the public purpose of providing quality, accessible and cost-effective aquatics opportunities to the residents of Fort Worth in accordance with the City's 2015 Parks, Recreation and Open Space Master Plan and the 2008 City-Wide Aquatics Master Plan (as amended in 2012) and providing that adequate controls are in place through such agreements to carry out such public purpose. DISCUSSION: The purpose of this Mayor and Council Communication (M&C) is for the City Council to authorize the expenditure of$2,300,000.00 of General Capital Project Funds as the City's portion for the design and construction of an Enhanced Neighborhood Family Aquatic Center(E-NFAC) in cooperation with the YMCA of Metropolitan Fort Worth (YMCA), along with the provision of support funds to help subsidize costs associated with the operation and maintenance of the E-NFAC. Loan funds will be distributed on a reimbursable basis during the project design and construction phase up to a total of $2,300,000.00, with an anticipated sum of up to $500,000.00 in Fiscal Year 2016 and up to http://apps.cfwnet.org/council_packet/mc review.asp?ID=21734&councildate=12/1/2015 11/14/2016 M&C Review Page 2 of 3 $1,800,000.00 in Fiscal Year 2017. These amounts are subject to change and may be adjusted based on project schedule and completion dates. On March 20, 2012 (M&C G-17554), the City Council adopted amendments to the 2008 City-Wide Aquatics Master Plan (Aquatics Master Plan). The amendments addressed the size and scope of future aquatic facilities, outlined sectors of the City for facility distribution, recommended an operational subsidy and emphasized the pursuit of partnerships to leverage the City's investment. The Aquatics Master Plan specifically stated that the City should continue to pursue partnerships with other entities such as school districts, non-profit agencies and private donors in the development of E-NFAC's. In endorsing its recommendation to the City Council on January 25, 2012, the Parks and Community Services Advisory Board included that the City should fund the construction of an E-NFAC in the eastside sector in the next two to four years. On August 20, 2015, the most recent Citizens Survey was presented to the City Council and, overall, the quality of parks/recreation programs and facilities was the fourth most important priority of survey respondents with 61 percent of respondents indicating they were either supportive or very supportive of developing new outdoor aquatics facilities. Specifically, one of the only decreases in notable trends for citizen satisfaction seen since the 2009 survey was the availability of outdoor swimming pools, with the greatest decrease at 11 percent and when considered by sector more concern was shown in the east and west sectors. The YMCA approached the City as early as March of 2014 with a multi-phase capital development needs plan that included a cooperative opportunity for an aquatic facility in the southeast sector as Phase I. The new facility will be located in the Renaissance Square development and the YMCA has identified and secured a site for the new campus on Mitchell Boulevard,just south of East Berry and next to the Mitchell Boulevard Elementary School. Overall cost for the entire development is anticipated at$12,100,000.00, of which $2,300,000.00 would be the City's participation in the form of a forgivable loan specifically for the aquatics (E-NFAC) portion of the YMCA campus. The City's financial participation is intended to show both cooperative commitment and assist the YMCA in leveraging all potential fund raising efforts. The actual loan funds, as an included stipulation of the loan contract, will be the last used for the E-NFAC after all other financial resources have been applied. Construction of the E-NFAC portion of the YMCA campus is anticipated to begin around July of 2016, with approximately three months of construction in Fiscal Year 2016 and anticipated to conclude in April of 2017, with approximately seven months of construction in Fiscal Year 2017, with a May 2017 opening. This E-NFAC will provide a much needed community resource for residents in the area, with increased access to recreational swimming, swim lessons and water safety instruction. The primary terms of the proposed Loan Agreement include the following: 1. Twenty year forgivable loan of$2,300,000.00 with zero percent interest evidenced by a note and secured by a deed of trust against the E-NFAC portion of the YMCA campus. The deed of trust will secure the YMCA's performance of the loan conditions as well as repayment of the loan funds if the loan terms are not met, with forgiveness amortized over the term of the loan. 2. Any unforgiven portion of the loan must be repaid in the event of default, with the entire amount being forgiven at the end of the loan term if there is no default. 3. Construction must be complete and the E-NFAC opened for use within two years from the Loan Agreement execution date, with a one year extension allowable upon mutual written agreement. 4. Payment of loan funds to the YMCA will be on a reimbursable basis during the construction phase of the project and will be the last dollars put into the E-NFAC portion of the project. 5. Measurables must be met to ensure the public purpose is fulfilled, including: a. A minimum number of Fort Worth residents to be served similar to any other City of Fort Worth aquatics facilities, availability and hours of operation, daily admission http://apps.cfwnet.org/council_packet/mc review.asp?ID=21734&councildate=12/l/2015 11/14/2016 M&C Review Page 3 of 3 fees, private rentals, special events and use without a YMCA membership; and b. Provision of learn-to-swim programs. 6. The YMCA will retain all revenues generated at the aquatics facility. At the expiration of the 20-year term, public access would be maintained subject to the continuation of a direct operating subsidy by the City. In order to ensure that the aquatics facility is both accessible to citizens and operated and maintained to a level acceptable to the City, it is recommended that the City provide an annual operating subsidy of$59,000.00 with annual increases of two percent. The subsidy would cover lifeguards, instructors and support staff related to the E-NFAC for the months the aquatics facility is in operation and accessible to the public. Additionally, the YMCA has proposed the establishment of a long-term major maintenance reserve fund and is requesting that the City contribute $12,000.00 per year for an initial period of 10 years, with the option to renew for two additional five year periods. The YMCA would provide an annual dollar-for-dollar match. The fund would be used for the repair and replacement of items associated directly with the E-NFAC. The combination of these two financial considerations would equate to a total initial operational outlay of$71,000.00 in Fiscal Year 2017, $72,180.00 in Fiscal Year 2018, $73,384.00 in Fiscal Year 2019, etc. Funding will be requested to meet the contractual obligation for the Support Agreement in the Fiscal Year 2017 proposed operating budget of the General Fund. The proposed location for the new Southeast YMCA is in COUNCIL DISTRICT 8. 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 Fiscal Year 2016 General Capital Improvement Program as appropriated in the General Capital Projects Fund. TO Fund Department Account Project Program Activity Budget Reference# Amount ID I I ID Year Chartfield 2 5 30100 0800450 4910100 100036 2016 $2,300,000.00 [5 130100 0800450 100036 2016 $2,300,000.00 FROM Fund Department Account Project Program Activity Budget Reference# Amount ID I ID I I I Year (Chartfield 2) 1) 301001 0800450 1 100036 1 1 1 2016 1 $2,300,000.00 Submitted for City Manager's Office by: Susan Alanis (8180) Originating Department Head: Richard Zavala (5704) Additional Information Contact: Richard Zavala (5704) ATTACHMENTS 80FORTWORTHYMCA LOAN 30101 FY16 AO (rev).docx http://apps.cfwnet.org/council_packet/mc review.asp?ID=21734&councildate=12/l/2015 11/14/2016