HomeMy WebLinkAboutContract 45586-A2 C 1
e CITY SECRETARY
AMENDMENT NO. 2 TO CONTRACT NO. 55 — a
0�&1\ ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
(CITY SECRETARY CONTRACT NO. 45586)
This AMENDMENT NO. 2 TO ECONOMIC DEVELOPMENT PROGRAM
AGREEMENT ("Amendment") is made and entered into by and between the CITY OF
FORT WORTH ("City"), a home rule municipality organized under the laws of the State of
Texas, and CLEARFORK DEVELOPMENT COMPANY, LLC ("Developer"), a Texas
limited liability company.
The City and Developer hereby agree that the following statements are true and correct
and constitute the basis upon which the City and Developer have entered into this Amendment:
A. On or about May 9, 2014 the City and Developer entered into that certain
Economic Development Program Agreement on file in the City Secretary's Office as City
Secretary Contract No. 45586, as previously amended by that certain Amendment No. 1 to
Economic Development Agreement, a public document on file in the City Secretary's Office as
City Secretary Contract No. 45586-A1 (collectively, the "Agreement"). Under the Agreement,
Developer agreed, either itself or through an Affiliate, to construct a mixed-use development on
certain real property in the City in the vicinity of West Vickery Boulevard and South Hulen
Street in stages at three potential levels of investment, all as set forth in the Agreement. In
return, the City agreed to pay Developer certain economic development Program Grants, as more
specifically provided in the Agreement.
B. The maximum amount of aggregate Program Grants payable under the Agreement
is dependent on the final scope of the Development, which is categorized under the Agreement
into three possible levels: the "Level 1 Development;" the "Level 2 Development;" and the
"Level 3 Development." Each Level is defined by a combination of Construction Cost
expenditures and completion standards for the various minimum improvements that must be
included within a particular Level, as more specifically set forth in the Agreement. Each Level
also has a defined Completion Deadline that must be met in order for that Level of the
Development to be considered achieved.
C. The purpose of City Secretary Contract No. 45586-A1 was to revise the
definitions of "Level 1 Development;" "Level 2 Development;" and "Level 3 Development,"
clarifying that completion of any Commercial/Retail space or office space within a particular
Level must be evidenced by receipt of a certificate of completion for shell building space in the
City's permit system, rather than through a certificate of occupancy for shell building space,
which was an older practice of the City that is no longer followed.
D. The Level 1 Completion Deadline originally established in the Agreement was
December 31, 2016. Section 17 of the Agreement provides that deadlines established by the
Agreement may be extended on account of events that cause delays and that are reasonably
beyond the control of the performing party (identified in the Agreement as events of force
majeure). On October 17, 2016 Developer notified the Cit events of
OFFICW.RECO
CITY SE�GRE"t'�A�
inclement weather from April 1, 2015 through December 31, 2015 constituted events of force
majeure and that Developer was entitled to an extension of the Level 1 Completion Deadline
to March 1, 2017 pursuant to Section 17 of the Agreement. City staff concurred with
Developer's position, and on November 15, 2016 the City Council approved such an extension
under Mayor and Council Communication("M&C")No. C-27989.
E. Subsequent to the City Council's approval of M&C C-27989, the City and
Developer concurred that additional inspections were necessary for issuance of a certificate of
completion for shell building space for Commercial/Retail space or office space in the
Development, and the parties agreed to a second extension of the Level 1 Completion Deadline
from March 1, 2017 to September 1, 2017. The City Council approved this second extension
under M&C No. C-28115. At that time, the Agreement had only been amended once through
City Secretary Contract No. 45586-A1. A reference in M&C No. C-28115 to a second
amendment as City Secretary Contract No. 45586-A2 was erroneous.
F. The parties now wish to enter into this second Amendment to the Agreement in
order to (i) memorialize the City Council's approved extensions to the Level 1 Completion
Deadline, collectively from December 31, 2016 to September 1, 2017 and (ii) reflect the specific
inspections that must be passed in order for a certificate of completion for shell building space to
be issued.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the City and Developer agree as follows:
1. The definition of "Level 1 Completion Deadline" in Section 2 of the Agreement
(Definitions) is hereby amended as follows:
Level 1 Completion Deadline means September 1,2017.
2. The definitions of "Level 1 Development," "Level 2 Development," and "Level 3
Development" in Section 2 of the Agreement are hereby amended to add the following sentence to
the end of each definition:
"A certificate of completion for shell building space letter will be entered into the
City's permit system upon written confirmation by the City Building Official that
the building space has passed all of the following final inspections: (i) a final
building inspection, including final mechanical, electrical, and plumbing
inspections; (ii) final fire inspection; and(iii) final parkway inspection."
3. Section 4.7.1 of the Agreement is hereby amended to replace the bold, italicized provision
as follows:
"Commercial/Retail and office improvements constructed on the Development
Property that do not have certificates of completion for shell building space and
Residential Units constructed on the Development Property that do not have
certificates of occupancy for residential operations, whether temporary or final
(in both cases,for the entirety of such improvements, as of the date of a Notice of
Completion), and any Construction Costs and Hard Construction Costs expended
for such improvements, shall not be considered for purposes of determining
whether the Level of Development covered by the Notice of Completion has been
achieved or assessing the extent to which Developer met the Fort Worth
Construction Commitment or the A WBE Construction Commitment applicable
to such Level, with the understanding that they will be considered by the City in
its evaluation as to whether a subsequent Level of Development has occurred so
long as the appropriate certificates of completion or occupancy, as applicable, are
in place by the Completion Deadline for that Level."
4. Section 5.1 of the Agreement is hereby amended to replace the bold, italicized provision as
follows:
"Commercial/Retail and office improvements constructed on the Development
Property that do not have certificates of completion for shell building space and
Residential Units constructed on the Development Property that do not have
certificates of occupancy for residential operations, whether temporary or final
(in both cases,for the entirety of such improvements as of the date of a Notice of
Completion), and any Construction Costs and Hard Construction Costs expended
for such improvements, shall not be considered for purposes of determining
whether the Level of Development has been achieved or assessing the extent to
which Developer or an Affiliate met or caused to be met the Fort Worth
Construction Commitment or the M/WBE Construction Commitment applicable
to such Level. However, such improvements, and Construction Costs and Hard
Construction Costs therefor, may be considered for purposes of evaluating
whether a subsequent Level of Development has been achieved, provided that
appropriate certificates of completion or occupancy, as applicable, were issued on
or before the Completion Deadline for the Level in question."
5. This Amendment shall be effective as of February 21, 2017, and the fact that parties may
have executed this Amendment after such date will have no bearing on the February 21, 2017
effectiveness of this Amendment.
6. Developer hereby agrees that it has reported all events of force majeure through
September 1, 2017 that may have caused a delay in its completion of the Level 1 Development,
and, notwithstanding anything to the contrary in the Agreement, Developer hereby waives any
right to claim that it is entitled to a further extension of the Level 1 Completion Deadline on
account of alleged events of force majeure occurring on or before September 1, 2017.
7. All terms in this Amendment that are capitalized but not defined have the meanings
assigned to them in the Agreement.
8. All terms and conditions of the Agreement that are not expressly amended pursuant to
this Amendment remain in full force and effect.
9. This Amendment may be executed in any number of duplicate originals, and each
duplicate original shall be deemed to be an original.
EXECUTED as of the last date indicated below, but to be effective as of February 21, 2017:
CITY OF FORT WORTH: APPROVED AS TO FORM AND
LEGALITY:
.r
By: By:
Sj5o..I Alar4%"s Peter Vaky
Assistant ity Manager Deputy City Attorney
Date: �R M&C: C-27889 11-15-16; C-28115 2-21-17
Form 1295 Certificate No. 2016-128353
Form 1295 Certificate No. 2017-156485
CLEARFORK DEVELOPMENT
COMPANY, LC, a Texas limitedb •Fo.fo'�
liability co n y .
B Name. Paxton E. J. ka—y' Seri, City 3e .. _
Title: Manager
AS
Date: 1 ti
N
RECORDRETARYTH,TX
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 2/21/2017
DATE: Tuesday, February 21, 2017 REFERENCE NO.: **C-28115
LOG NAME: 17CLEARFORK AMENDS
SUBJECT:
Authorize Execution of Amendment to City Secretary Contract No. 45586, Economic Development
Program Agreement with Clearfork Development Company, LLC, as Previously Amended, to Extend the
Completion Deadline for the First Phase of a Mixed-Use Development to be Located Near the Southwest
Corner of West Vickery Boulevard and South Hulen Street(COUNCIL DISTRICT 3)
RECOMMENDATION:
It is recommended that the City Council authorize the execution of an amendment to the Economic
Development Program Agreement with Clearfork Development Company LLC, City Secretary Contract
Nos. 45586, 45586-A1, and 45586-A2, to extend the completion deadline for the first phase of a mixed-
use development to be located near the southwest corner of West Vickery Boulevard and South Hulen
Street from March 1, 2017 to September 1, 2017, to accommodate a clarification of the requirements of
the Agreement.
DISCUSSION:
On February 18, 2014, (M&C C-26672) the City Council authorized execution of an Economic
Development Program Agreement (Agreement) with Clearfork Development Company, LLC, or an
affiliate, related to Clearfork, a mixed-use project to be constructed near the southwest intersection of
West Vickery Boulevard and South Hulen Street due south of Chisholm Trail Parkway. The planned
development was to be constructed in two phases, with the first phase to be completed by December 31,
2016.
This Agreement was executed as City Secretary Contract (CSC) No. 45586, and was later amended (CSC
No. 45586-A1) to provide for a clarification in terminology from "certificate of occupancy for shell building
space"to "certificate of completion for shell building space"to confirm that the Agreement reflected current
practice for issuance by the Planning and Development Department.
The Agreement provides that deadlines established by the Agreement may be extended on account of
events that cause delays and that are not the fault of the performing party (identified in the Agreement as
events of force majeure).
In order to provide clarity to the rights of both the City and the Developer, on November 15, 2016, the City
Council approved amending the Agreement to change the completion deadline for the first phase of the
development from December 31, 2016 to March 1, 2017 due to documented inclement weather delays.
Since that time, requirements for completion of shell building space have been further clarified to support
the intent of the Agreement and amendment. Staff recommends an extension to the completion deadline
for the first phase of the development to September 1, 2017, to accommodate the additional work
necessary to meet the shell building space requirements. Per the Building Official, in order to meet the
shell space requirements, the property needs to have passed the following inspections:
Logname: 17CLEARFORK_AMEND3 Page I of 2
1. Final Building Inspection (which includes Final MEP Inspections);
2. Final Fire Inspection; and
3. Final Parkway Inspection.
This constitutes a finished Shell Building, ready for a tenant finish out, which is an interior-only remodel.
This standard has now been set for shell building completion in Economic Development Program
Agreements.
This project is located in COUNCIL DISTRICT 3, Mapsco 75X.
FISCAL INFORMATION / CERTIFICATION:
The Director of Finance certifies that approval of the above recommendation will have no material effect
on the Fiscal Year 2017 Budget. Upon approval of this Agreement, the long term financial impacts will be
included in the multi-year financial forecast.
FUND IDENTIFIERS (FIDs):
TO
"_bepartment ccoun Project JProgram ctivity Budget Reference # moun
ID ID Year (Chartfield 2)
FROM _
Fund Department ccoun Project Program ctivity Budget Reference # mount
ID ID Year (Chartfield 2)
CERTIFICATIONS:
Submitted for City Manager's Office by: Jay Chapa (5804)
Originating Department Head: Robert Sturns (212-2663)
Additional Information Contact: Ossana Hermosillo (212-2665)
ATTACHMENTS
1. Form1295 Clearfork Jan20l7.pdf (Public)
2. Map Clearfork.pdf (Public)
Logname: 17CLEARFORK AMEND3 Page 2 of 2
C-- Q8115
CERTIFICATE OF INTERESTED PARTIES
FORM 1295
10f1
Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business. 2017-156485
Clearfork Development Company, LLC
Indianapolis, IN United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is 01/20/2017
being filed.
City of Ft.Worth Date AcMR
d:
g Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a
description of the services,goods,or other property to be provided under the contract.
45586
TIF for Clearfork
Nature of interest
4
Name of Interested Party City,State,Country(place of business) (check applicable)
Controlling I Intermediary
Cassco Development Company Ft.Worth,TX United States X
5 Check only if there is NO Interested Party. ❑
6 AFFIDAVIT I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct.
GAIL E. PHILLIPS
Seal
Notary Public-State of Indiana
Marion County
Ay commission Expires May 15, 2024 ture f&uthorized agent of contracting business entity
AFFIX NOTARY STAMP/SEAL ABOVE
Sworn to and subscribed before me,by the said o ,this the day of
20 to certify whic itness my hand and seal of office
ig ature cif officer administering oatJ Printed name of officer administers oat itle of officer dministering oath
Forms provided by Texas Ethics Commission vwvw.ethics.state.tx.us Version V1.0.277