HomeMy WebLinkAboutContract 50565-ES1 Developer and Project Information Cover Sheet:
Developer Company Name: Viridian Municipal Management District
Address, State,Zip Code: 3100 McKinnon St., Suite 1100,Dallas, TX 75201
Phone&Email: 214.981.9090
Authorized Signatory, Title: Tom O'Dwyer, Chairman
Project Name and Brief Tarrant Main Street at T.R.E.
Description: Paving, Paving, Storm Drain, Street Lights
Project Location: 3501 S. Tarrant Main St,
Plat Case Number: None Plat Name: None
Mapsco: 55V Council District: 5 City Project Number: 100826
CFA Number: 2017-118 DOE Number: None
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City of Fort Worth,Texas
Escrow Pledge Agreement OFFICIAL RECORD
CFA Official Release Date:07.01.2015
Page I of 10 CITY SECRETARY
FT,(NORTH,TX
ESCROW AGREEMENT CITY SECRETARYf �--
CONTRACT NO. J
THIS ESCROW AGREEMENT (the "Agreement"), entered into as of this aa"tlay
of ft�' L_V, 20_kR_, by and among Viridian Municipal Management District ("Developer"), a
Texas conservation and reclamation district, and the City of Fort Worth, a Texas municipal
corporation ("Fort Worth") and The Baker Firm PLLC, ("Escrow Agent") is to witness the
following:
WHEREAS, Developer and Fort Worth have entered into a Community Facilities
greement for Tarrant Main Street (CFA# 2017-118, DOE# 100826 City Secretary No.
�( � in the City of Fort Worth, Tarrant County, Texas (the "CFA"); and
WHEREAS, the CFA provides that Developer shall submit to Fort Worth performance
bonds, cash deposits or other financial security acceptable to Fort Worth (collectively, the
"Financial Security") for the purpose of guaranteeing satisfactory compliance by Developer with
all requirements, terms, and conditions of the CFA(the "CFA Obligations"); and
WHEREAS, Developer and Fort Worth desire and agree that Developer be allowed to
escrow and pledge cash deposits to Fort Worth, to be held by Escrow Agent, as an escrow agent,
in complete satisfaction of the obligation to submit the Financial Security to secure the
performance of the CFA Obligations.
NOW THEREFORE, for and in consideration of these recitals, ten dollars ($10.00) and
other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby
acknowledged,the parties hereto hereby agree as follows:
SECTION 1. DEFINED TERMS.
For the purposes of this Agreement, unless the context otherwise clearly requires, the
following terms shall have the following meanings:
"Security Funds" shall mean the cash deposit of six hundred eighty three thousand nine
hundred seventy-five dollars and zero cents ($ 683,975.00), which sum represents one
hundred twenty-five percent(125%) of the estimated Developer's cost of constructing the
CFA Obligations (the "Estimated Developer's Cost").
"Lien" shall mean any lien, security interest, charge, tax lien, pledge or encumbrance
designed to secure the repayment of indebtedness or the satisfaction of any other
obligation to a third party not a party of this Agreement.
SECTION 2. SECURITY FUNDS.
As financial security for the full and punctual performance of the CFA Obligations,
Developer hereby pledges, assigns, and transfers to Fort Worth, and hereby grants to Fort Worth
a security interest in the Security Funds and all rights and privileges pertaining thereto with the
City of Fort Worth,Texas
Escrow Pledge Agreement OFFICIAL RECORD
CFA Official Release Date:07.01.2015 ' CITY SEC 4
Page 2 of 10 RETARY
FT.WORTH,TX
exception of the interest income to be derived therefrom (which interest income shall remain the
property of Developer and shall be distributed by Escrow Agent in accordance with Developer's
periodic instructions) subject, however, to the terms, covenants, and conditions hereinafter set
forth. The security interest granted and the assignments made hereunder are made as security
only and shall not subject the City of Fort Worth or Escrow Agent to, or transfer or in any way
affect or modify, any obligation of Developer with respect to the CFA Obligations or any
transaction involving or giving rise therefrom.
SECTION 3. PHYSICAL POSSESSION OF SECURITY FUNDS.
Concurrently with the execution of this Agreement, Developer shall have delivered or
cause to be delivered to and deposited with Escrow Agent the Security Funds. The parties
acknowledge and agree that Escrow Agent shall be required to segregate the Security Funds from
other funds held by Escrow Agent for Developer in accordance with the normal practices of
Escrow Agent acting as an escrow agent. Further, to the extent not insured by the Federal
Deposit Insurance Corporation or its successor, the Security Funds shall be continuously
collateralized by securities or obligations which are eligible under the laws of the State of Texas
to secure and be pledged by an instrumentality and political subdivision of the State of Texas.
Escrow Agent shall return all funds on deposit representing or evidencing the Security Funds
remaining in its possession to Developer (or take such other action as Developer may request or
direct) immediately after receipt of written notice from Fort Worth that the CFA Obligations
have been fully performed. During such time as Escrow Agent has possession of the Security
Funds, Escrow Agent shall furnish to the City of Fort Worth (when requested by Fort Worth)
written acknowledgments signed by an officer of Escrow Agent detailing the amount of the
Security Funds. Fort Worth's rights in the Security Funds shall be superior to those of Escrow
Agent's notwithstanding any terms or understandings (written or otherwise) between Developer
and Escrow Agent.
SECTION 4. COVENANTS.
(a) Affirmative Covenants. So long as any of the CFA Obligations remain unperformed,
Developer covenants and agrees that Developer will:
(i) from time to time execute and deliver to Fort Worth all such assignments,
certificates, supplemental writings, and other items and do all other acts or
things as Fort Worth may reasonably request in order to evidence and perfect
the security interest of Fort Worth in the Security Funds;
(ii) furnish Fort Worth with information which Fort Worth may reasonably
request concerning the Security Funds;
(iii) notify Fort Worth of any claim, action, or proceeding affecting title to the
Security Funds or Fort Worth's security interest(s) therein; and
City of Fort Worth,Texas
Escrow Pledge Agreement
CFA Official Release Date:07.01.2015 + +
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(iv) adjust the Security Funds to an amount equal to the actual contract price,
including revisions thereto, if the original Security Funds were based on an
engineer's estimate of costs.
(b) Negative Covenants. So long as any of the CFA Obligations remain unperformed,
Developer covenants and agrees that Developer will not:
(i) assign or transfer any rights of Developer in the Security Funds; or
(ii) create any Lien in the Security Funds, or any part thereof, or permit the same
to be or become subject to any Lien except the security interest herein created
in favor of Fort Worth.
SECTION 5. EVENTS OF DEFAULT.
Developer shall be in default under this Agreement only upon the happening of any of the
following events (a"Default"):
(a) default in the timely payment for or performance of the CFA Obligations after written
notice thereof has been given to Developer and Escrow Agent and such default is not
cured within fifteen (15) days after such notice;
(b) any affirmative or negative covenant is breached by Developer.
SECTION 6. RIGHTS AND REMEDIES OF FORT WORTH UPON AND AFTER
DEFAULT.
(a) Remedy. Upon the occurrence of the following, Fort Worth shall have the right to
direct Escrow Agent to transfer to Fort Worth all of the Security Funds. Escrow
Agent is hereby authorized to transfer the Security Funds immediately upon the
receipt of a written statement purporting to be executed by an authorized
representative of Fort Worth stating that:
(i) a Default by Developer has occurred related to the CFA Obligations;
(ii) written notice of such Default has been given by Fort Worth to Developer and
Escrow Agent and such Default was not cured within fifteen (15) days after
delivery of such notice; and
(iii) Fort Worth is entitled to have the Security Funds transferred in accordance
with the Agreement.
(b) Notices. Any notice required or permitted to be given to any party hereto shall be
given in writing, shall be personally delivered or mailed by prepaid certified or
registered mail to such party at the address set forth below, and shall be effective
when actually received.
City of Fort Worth,Texas
Escrow Pledge Agreement
CFA Official Release Date:07.01.2015 + +
Page 4 of 10
To Developer:
Viridian Municipal Management District
Attention: Chairman, Board of Directors
c/o Crawford&Jordan LLP
3100 McKinnon Street, Suite 1100
Dallas, Texas 75201
To: Escrow Agent:
The Baker Firm, PLLC
Attention: Nikki Jackson
4541 Bellaire Drive South, Suite 101
Fort Worth, Texas 76109
With copy to:
Viridian Holdings, LP
Attention: Mr. Robert Kembel
3104-7 North Collins Street
Arlington, Texas 76005
To: City of Fort Worth
City Of Fort Worth
Attn: City Treasurer
1000 Throckmorton
Fort Worth, TX 76102
With a copy to:
City of Fort Worth
Attn: CFA Administration
1000 Throckmorton
Fort Worth, TX 76102
Any party may change its address for notice by giving all other parties hereto notice to
such change in the manner set forth in this Section no later than ten(10) days before the effective
date of such new address.
SECTION 7. EXCLUSIVE RIGHTS AND REMEDIES.
If the Developer fails to perform its obligations under the CFA, Fort Worth's sole and
exclusive remedy shall be to complete the obligations of Developer at Developer's expense. In
furtherance of such sole and exclusive remedy, Fort Worth is entitled to exercise its rights as set
forth in Section 6 hereof.
SECTION 8. SUBSTITUTION OF COLLATERAL.
City of Fort Worth,Texas
Escrow Pledge Agreement
CFA Official Release Date:07.01.2015 h
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Notwithstanding any contrary provision in this Agreement, Developer shall have the
right, at any time and from time to time, to obtain releases of all or any part of the Security Funds
(hereinafter called the "Released Collateral") upon satisfaction of the following conditions:
(a) Developer shall provide Fort Worth and Escrow Agent written notice (the
"Substitution Notice") that the Developer desires to obtain Released Collateral in
exchange for a contemporaneous substitution of an alternate Financial Security
acceptable to Fort Worth (as specified and described in the Substitution Notice); and
(b) Developer shall pledge to, or obtain for the benefit of Fort Worth, and deliver or cause
to be delivered to Fort Worth the alternate Financial Security acceptable to Fort
Worth (the "Substituted Collateral") which Substituted Collateral shall in the
aggregate be at least equal to the Estimated Developer's Cost; and
(c) Said Substituted Collateral shall be of sufficient amount(s) to cover all work which
has occurred prior to the substitution of collateral provided for in this Section.
Upon satisfaction of the above-specified conditions, Escrow Agent shall be authorized
(without the further consent of Fort Worth) to return to Developer the original Security Funds in
Escrow Agent's possession that represent or evidence the Released Collateral or take such other
action with respect to the Released Collateral as Developer may request or direct. Developer
shall pay the expenses incurred by Escrow Agent In connection with obtaining each such release
and substitution.
SECTION 9 PERIODIC WITHDRAWAL OF COLLATERAL.
Notwithstanding any contrary provision in this Agreement, Developer shall have the right to
periodic withdrawals of the Security Funds (hereinafter called the "Withdrawn Collateral"),
including withdrawals for the purposes of funding monthly contractor requests for payment of
CFA Obligations, upon satisfaction of the following conditions:
(a) Developer shall provide the City of Fort Worth and Escrow Agent with written notice
(the "Withdrawal Notice") that Developer desires to obtain the Withdrawn Collateral
in any amount less than or equal to the then-completed CFA Obligations as inspected
or accepted by Fort Worth; and
(b) the balance of the Security Funds after withdrawal of the Withdrawn Collateral is at
least equal to the estimated value of the CFA Obligations then remaining to be
performed (such remaining value is hereinafter called the "Estimated Cost to
Complete").
The Withdrawal Notice shall include a description of the Withdrawn Collateral and Developer's
calculation of the Estimated Cost to Complete. Upon receipt of the Withdrawal Notice, Fort
Worth shall have seven (7) calendar days to notify Developer of Fort Worth's objection to
Developer's calculation of the Estimated Cost to Complete by providing Developer with Fort
City of Fort Worth,Texas
Escrow Pledge Agreement
CFA Official Release Date:07.01.2015 +
Page 6 of 10
Worth's calculation of the Estimated Cost to Complete. The grounds for any objection are
limited solely to a good faith determination by Fort Worth that the balance of the Security Funds
is insufficient to cover the Estimated Cost to Complete. If Fort Worth fails to timely notify
Developer and Escrow Agent of any objection, then Developer's calculation shall be deemed to
have been accepted and approved by the City of Fort Worth, and Escrow Agent is authorized to
release the Withdrawn Collateral requested by Developer without delay. In the event a written
objection is timely filed by Fort Worth and Fort Worth's calculation is within a range of five
percent (5%) of Developer's Estimated Cost to Complete, then Developer shall be allowed to
withdraw the amount corresponding to Fort Worth's calculation of the Estimated Cost to
Complete. If Fort Worth's calculation of the Estimated Cost to Complete is outside a range of
five percent (5%) of Developer's Estimated Cost to Complete, then Fort Worth and Developer,
through a designated representative, will reconcile the calculations and jointly approve an
Estimated Cost to Complete and advise Escrow Agent to disburse the amount as jointly
determined.
If after the expiration of two (2)years from the date of this Agreement either:
(i) none of the CFA Obligations have been performed; or
(ii) there has been partial performance but the term of the CFA has not been extended
by Fort Worth; then
in either event, the City of Fort Worth shall be entitled to receive the Security Funds as specified
in Section 6 and construct the improvements contemplated in the CFA.
SECTION 10. NON-ACCESSIBILITY OF FORT WORTH'S RIGHTS.
The rights, powers, and interests held by Fort Worth hereunder in and to the Security
Funds may not be transferred or assigned by Fort Worth in whole or in part. Any attempted
transfer or assignment shall be absolutely void and shall entitle Developer to a release of all
Security Funds.
SECTION 11. NO WAIVER.
No waiver by Fort Worth of any Default shall be deemed to be a waiver of any other
subsequent Default. No delay or omission by Fort Worth in exercising any right or power
hereunder shall impair any such right or power or be construed as a waiver thereof, nor shall any
single or partial exercise of any such right or power preclude other or further exercise thereof.
SECTION 12. BINDING EFFECT.
This Agreement shall be binding on the parties, their successors and assigns. No
provision of this Agreement may be amended, waived, or modified except pursuant to a written
instrument executed by Fort Worth, Escrow Agent and Developer.
SECTION 13. CHOICE OF LAW.
City of Fort Worth,Texas
Escrow Pledge Agreement
CFA Official Release Date:07.01.2015 +
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This Agreement is to be construed and interpreted in accordance with the laws of the
State of Texas.
SECTION 14. COUNTERPARTS.
This Agreement may be executed in any number of multiple counterparts and by different
parties on separate counterparts, all of which when taken together shall constitute one and the
same agreement.
SECTION 15. INDEMNITY.
To the extent permitted by law, Developer hereby agrees to release, hold harmless,
and indemnify Escrow Agent (and its directors, officers, employees, agents and
representatives) from and against all claims, damages, expenses, costs, suits and other
liability of any kind whatsoever that arise out of or are directly or indirectly related to the
performance by Escrow Agent of its duties hereunder except for the gross negligence or
willful misconduct of Escrow Agent or its directors, officers, employees, agents or
representatives and Developer hereby agrees to release, hold harmless, and indemnify Fort
Worth (and its respective directors, officers, employees, agents and representatives) from
and against all claims, damages, expenses, costs, suits and other liability of any kind
whatsoever that arise out of or are directly or indirectly related to any actions or inaction
by Fort Worth with respect to this Agreement.
SECTION 16. PAYMENT OF ESCROW FEES
Developer will be responsible for the payment of all fees to Escrow Agent associated
with this Agreement.
REMAINDER OF THIS PAGE INTENTIONALLY BLANK
City of Fort Worth,Texas
Escrow Pledge Agreement
+ CFA Official Release Date:07.01.2015 " +
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ACCORDINGLY, the City of Fort Worth, Developer, and Escrow Agent have each
caused this instrument to be executed in quadruplicate in each entity's respective name by its
duly authorized signatories effective as of the date executed by the City Manager or his/her
designee.
CITY OF FORT WORTH DEVELOPER
VIRIDIAN MUNICIPAL MANAGEMENT
DISTRICT
Jesus J. Chapa
Assistant City Manager Name: Tom O'Dwyer
�} Title: Chairman,Board of Directors
Date: 3 —G[7
Date: Ilq wa
Approved at to Form & Legality:
ESCROW AGENT
The Baker Firm PLLC
o*
� A me-
Assistant
cAssistant City jikney
M&C No. r
Date:
Name: Ni i Jackson
ATTEST: Title: Sen or Vice President
Date: 1 lZ 3 1'8
�.
FOA' x
Mary J. K' � Yr
ex �� .
City Secretary I
OFFICIAL RECORD
CITY SECRETARY
City of Fort Worth,Texas FT.WORTH,TX
Escrow Pledge Agreement
CFA Official Release Date: 07.01.2015
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Contract Compliance Manager
By signing I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
ensuring all performance and reporting requirements.
1
Ja:ue S. Morales
Development Manager
OFFICIAL RECORD
CITY SICRETARY
FT,III�J►ItYN,17c
ATTACHMENT "1"
Changes to Standard Agreement
Escrow Pledge Agreement
None
City of Fort Worth,Texas
Escrow Pledge Agreement
CFA Official Release Date:07.01.2015
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