HomeMy WebLinkAboutContract 51211-ES1 Received Date: Sep 6,2018
Received Time: 3:51 pm
Developer and Project Information Cover Sheet:
Developer Company Name: Mistletoe Station,LLC
Address, State,Zip Code: 5501 A Balcones Dr.,Austin,Texas 78731
Phone&Email: 352-213-8700//lisa@saigebrook.com
Authorized Signatory,Title: Lisa Stephens,President
Project Name and Brief Description: Mistletoe Station Sewer/Sewer
Project Location: Mistletoe Blvd&Beckham PI
Plat Case Number: FP-18-037 Plat Name: Mistletoe Station
Mapsco: <Mapsco> Council District: 9 City Project Number: 101561
CFA Number: 2018-059 DOE Number: N/A
OFFICIAL RECORD
CITY SECRETARY
F•WORTMo TX
City of Fort Worth,Texas
Escrow Pledge Agreement
CFA Official Release Date:07.01.2015 Revised 09.07.2017 JLE
Page 1 of 10
HOU 4088698010
51211-ES1
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement"), entered into as of this 6th day
of September , 2018 , by and among Mistletoe Station, LLC , ("Developer"), the City of Fort
Worth, a Texas municipal corporation ("Fort Worth") and JPMorgan Chase Bank, N.A.
("Escrow Agent") is to witness the following:
WHEREAS, Developer and Fort Worth have entered into a Community Facilities
Agreement for Mistletoe Station Sewer (CFA# 2018-059, DOE# N/A City Secretary No.
51211 ,) 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 Four Hundred and Nineteen Thousand
and Two Hundred and Thirty Dollars ($419,230), 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
exception of the interest income to be derived therefrom (which emain the
City of Fort Worth,Texas
Escrow Pledge Agreement OFFICIAL.RECORD
CFA Official Release Date:07.01.2015 CITt ft0fAW7 E
Page 2 of 10
HOU 4088698010 W9RTN j TX
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 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. 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
(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:
City of Fort Worth,Texas
Escrow Pledge Agreement
CFA Official Release Date:07.01.2015 Revised 09.07.2017 JLE
Page 3 of 10
HOU 4088698010
(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 seven (7)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 a Default, 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 seven (7) days after
delivery of such notice; and
(iii) Fort Worth is entitled to have the Security Funds transferred in accordance
with the Agreement; and
(iv) Fort Worth will use the Security Funds to pay and perform the CFA
obligations.
(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.
To Developer:
Mistletoe Station,LLC
City of Fort Worth,Texas
Escrow Pledge Agreement
CFA Official Release Date:07.01.2015 Revised 09.07.2017 ME
Page 4of10
HOU 4088698010
Attention: Lisa Stephens
5501 —A Balcones Dr., Ste 302
Austin, Texas 78731-5414
To: Escrow Agent:
JPMorgan Chase Bank,N.A.
Attention: Olivia Ochoa
2200 Ross Avenue, 9th Floor
(TX 1-2951)
Dallas, Texas 75201
To: City of Fort Worth
City Of Fort Worth
Attn: City Treasurer
200 Texas Street
Fort Worth, TX 76102
With a copy to:
City of Fort Worth
Attn: CFA Administration
200 Texas Street
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.
(c) Forth Worth agrees that it will only use Security Funds to pay and perform the
CFA Obligations (if any amounts are remaining after completion of the CFA
Obligations, that amount shall be paid and deposited with the Escrow Agent).
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.
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:
City of Fort Worth,Texas
Escrow Pledge Agreement
CFA Official Release Date:07.01.2015 Revised 09.07.2017 JLE
Page 5 of 10
HOU 4088698010
(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 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 (subject to all agreements
between the Developer and Escrow Agent) 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"), 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 work to be paid with the Withdrawn
Collateral (together with all related invoices, purchase orders and related lien waivers) 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 and of the completion of
any work to be paid with the Withdrawn Collateral by providing Developer with Fort Worth's
calculation of the Estimated Cost to Complete and a determination if the work to be completed as
described in.the Withdrawal Notice may be paid with the Withdrawn Collateral. The grounds for
City of Fort Worth,Texas
Escrow Pledge Agreement
CFA Official Release Date:07.01.2015 Revised 09.07.2017 JLE
Page 6 of 10
HOU 4088698010
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 (and Escrow Agent agrees with the
conclusion of Fort Worth, which may be based on an inspection of an independent third party
consultant), 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 with the proceeds of the
Security Funds.
If Fort Worth does not use the Security Funds after the occurrence of an Event of Default, or
otherwise, Escrow Agent, with the consent of Fort Worth, may use the Security Funds as they
may agree.
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.
City of Fort Worth,Texas
Escrow Pledge Agreement
CFA Official Release Date:07.01.2015 Revised 09.07.2017 JLE
Page 7 of 10
HOU 4088698010
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.
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.
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 Revised 09.07.2017 ME
Page 8 of 10
HOU 4088698010
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
Mistletoe Station,LLC
'r- —
Jesus J.Chapa(Aug 23,2018) -
Jesus J. Chapa Lisa s(Aug 23,2018)
Assistant City Manager Name: Lisa Stephens President of Saigebrook
Mistletoe,LLC
Date: Title: Managing Member of Mistletoe Station,
LLC
Approved at to Form &Legality: Date: 08/23/2018
ESCROW AGENT
fCLCit`'U fL. /VlG(;Y6ZGK2f1i
Ricard A.McCracken(Aug 23,2018)
Richard A. McCracken
Sr. Assistant City Attorney
M&C No.
Date: 08/23/2018 N : e: �/vro
Title: i4 A&P -c
ATTEST:
Date: of- iY
yet t''
Mary J.K r(Au ,2018) •• ....
Mary J. kayser 7
City Secretary C�, r A
OFFICIAL RECORD
CITY SECRETARY
!!'1`.WORTH O TX
City of Fort Worth,Texas
Escrow Pledge Agreement
CFA Official Release Date: 07.01.2015 Revised 09.07.2017 ME
Page 9 of 10
HOU 4088698090
Recommended by:
r m .1r
Evelyn Robe s(Aug 23,2018)
Evelyn Roberts
Contract Specialist
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 report requirements.
Nathan Benson(Aug 23,2018)
Janie Scarlett Morales
Development Manager
OFFICIAL.RECORD
CITY 31CRIETARY
FT4 WORTHI Tx
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 Revised 09.07.2017 ME
Page 9 of 10
HOU 4088698010