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HomeMy WebLinkAboutContract 52098 03/27/19 8:35 AM Developer and Project Information Cover Sheet: Developer Company Name: FG ALEDO DEVELOPMENT,LLC Address, State,Zip Code: 3045 Lackland Road,Fort Worth,Texas 76116 Phone&Email: 8/17 731-7595,keillasableholdin sg com Authorized Signatory,Title: Kim Gill,President Project Name and Brief MORNINGSTAR,SECTION 6,PHASE 4 Description: Single Family Residential Project Project Location: FM 3325,Parker County,Ft.Worth,ETJ. Plat Case Number: FP 17-064 Plat Name: MORNINGSTAR Mapsco: 760-D Council District: #3 City Project Number: 101091 CFA Number: 2018-057 DOE Number: N/A City of Fort Worth,Texas Escrow Pledge Agreement to replace Completion Agreement Revised 09,07 2U7 JLAAL RECORD CFA Official Release Date: 10.31.2016 Page 1 of 12 Ci` SECRETARY FT. WORTH,TX CSC No.52098 ESCROW AGREEMENT TO REPLACE COMPLLTION AGREEMENT THIS ESCROW AGREEMENT(the"Agreement"), entered into as of this 25th day of March '2019 ,by and among FG ALEDO DEVELOPMENT,LLC.,("Developer"),the City of Fort Worth, a Texas municipal corporation ("Fort Worth?') and SIMMONS BANK, an Arkansas State Bank, successor-in-interest by merger to Sopthwest Bank ("Escrow Agent") is to witness the following: WHEREAS, Developer and Fort Worth have entered into a Community Facilities Agreement for MORNINGSTAR — SECTION 6, PHASE 4 (CFA# 2018-057, CITY PROJECT NUMBER# 101091 City Secretary No. _50873,) 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,the Developer previously executed a Completion Agreement(City Secretary Contract No.50873) as financial security guaranteeing satisfatory compliance with the CFA Obligations for the project; and WHEREAS,the Developer desires to replace the Completion Agreement with this Escrow Agreement; and WHEREAS, City staff has determined that the amount of this Escrow Agreement is adequate financial security to guarantee satisfactory compliance by the Developer with the remaining 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 ($10.00) and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows: SECTION 1. DEFINED TERMS. For the purposes of this Agreement, unless the context otherwise clearly requires, the following terms shall have the following meanings: "Security Funds" shall mean the cash deposit of THIRTY-EIGHTY THOUSAND SEVEN HUNDRED SEVENTY FOUR DOLLARS AND SIX CENTS ($ 38,774.06), City of Fort Worth,Texas Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2 C)PICIA.RECORD CFA Official Release Date: 10.31.2016 �f'(Y SECRETARY Page 2 of 12 FT. WORTH,TX which sum represents one hundred twenty-five percent (125%) of the estimated Developer's cost of constructing the remaining 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 remaining 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 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 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) within two (2) business days 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; City of Fort Worth,Texas Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 ME CFA Official Release Date: 10.31.2016 Page 3 of 12 (ii) furnish Fort Worth with information which F�rt 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 inter st(s)therein; and (iv) adjust the Security Funds to an amount eq al 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 ot: (i) assign or transfer any rights of Developer in the Security Funds; or (ii) create any Lien in the Security Funds, or anyart thereof,or permit the same to be or become subject to any Lien except the�ecurity interest herein created in favor of Fort Worth. SECTION 5. EVENTS OF DEFAULT. Developer shall be in default under this Agreement only l pon the happening of any of the following events (a"Default"): (a) default in the timely payment for or performance of e CFA Obligations after written notice thereof has been given to Developer and Esc w 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 within two(2)business days upon the receipt of a written statement.purporting to be executed by an authorized representative of Fort Worth stating that: (i) a Default by Developer has occurred related tp the CFA Obligations; (ii) written notice of such Default has been give by Fort Worth to Developer and Escrow Agent and such Default was not c�ed within seven (7) days after delivery of such notice; and City of Fort Worth,Texas Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 ME CFA Official Release Date: 10.31.2016 Page 4 of 12 (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. To Developer: FG ALEDO DEVELOPMENT, LLC. Attention: KIM GILL 3045 LACKLAND ROAD FORT WORTH, TEXAS 76102 To: Escrow Agent: SIMMONS BANK, an Arkansas State Bank, Successor-in-interest by merger to Southwest Bank Attention: ALEC BARRY 2200 WEST 7TH STREET FORT WORTH, TEXAS 76102 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. 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 City of Fort Worth,Texas Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 JLE CFA Official Release Date: 10.31.2016 Page 5of12 furtherance of such sole and exclusive remedy, Fort Worth is e$ttitled to exercise its rights as set forth in Section 6 hereof. SECTION S. 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: (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 amoup t(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, D veloper shall have the right to periodic withdrawals of the Security Funds (hereinafter called th "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"). City of Fort Worth,Texas Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 ME CFA Official Release Date: 10.31.2016 Page 6 of 12 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 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-ASSIGNABILITY 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. City of Fort Worth,Texas Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 ME CFA Official Release Date: 10.31.2016 Page 7 of 12 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 mul 'ole 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 fee to Escrow Agent associated with this Agreement. SECTION 17. ESCROW AGENT DUTIES a. Duties Limited. The Escrow Agent shall perform only the duties expressly set forth herein and no further duties or responsibilities shall be implied. The Escrow Agent shall have no liability under and no duty to inquire as to the provisions of any agreement other than this Agreement. The Escrow Agent shall have no duty to solicit any funds that may be required to be deposited hereunder with Escrow Agent. b. Reliance. The Escrow Agent may rely upon, and shall be protected in acting or refraining from acting upon, any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document. C. Good Faith. The Escrow Agent shall not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines that the Escrow Agent's negligence, gross negligence or willful misconduct was the primary cause of any City of Fort Worth,Texas Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 ME CFA Official Release Date: 10.31.2016 Page 8of12 loss to Fort Worth or Developer. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys (and shall be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants and other skilled persons to be selected and retained by it. d. Adverse Claim; Interpleader. If there is any disagreement or dispute in connection with this Agreement or the subject matter hereof, or in the event of adverse or inconsistent claims or demands upon, or inconsistent instructions to, Escrow Agent, or if Escrow Agent in good faith is in doubt as to what action to take pursuant to this Agreement,Escrow Agent may,at its election, refuse to comply with any such claims,demands,or instructions, or refuse to take any other action pursuant to this Agreement until: (i) the rights of all persons involved in the dispute have been fully and finally adjudicated by a court of competent jurisdiction; or (ii) all disputes have been resolved between the parties involved, and Escrow Agent has received written notice thereof satisfactory to it from all such persons. Without limiting the generality of the foregoing, Escrow Agent may, at its election, institute an action for interpleader and deposit the Escrow Fund or any portion thereof into the registry of a court of competent jurisdiction in Tarrant County, Texas, or commence judicial proceedings for declaratory judgment, and Escrow Agent shall be entitled to recover from Developer, its attorneys' fees and costs in connection with any such interpleader or declaratory judgment action. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. REMAINDER OF THIS PAGE INTENTIONALLY BLANK City of Fort Worth,Texas Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 ME CFA Official Release Date: 10.31.2016 Page 9 of 12 ACCORDINGLY,the City of Fort Worth,Developer and Escrow Agent have each caused this instrument to be executed in quadruplicate in each enti 's respective name by its duly authorized signatories effective as of the date executed by the C ty Manager or his/her designee. CITY OF FORT WORTH DEVELOPR FG ALEDO DEVELOPMENT,LLC. Jesus J.Chapa(Mar 25,2019) _ Jesus J. Chapa kim gill(War 25,2019) Assistant City Manager Name: KIMBERLY GILL Title: PRESIDENT of KTFW INVESTMENTS, Date: Mar 25,2019 INC.MANAGER OF DEVELOPER Approved at to Form &Legality: Date: M a r 25, 2019 &LI& rr &CI-y-k-my ESCROW AGENT Richard A.McCracken(Mar25,2019) SIMMONS BANK,an Arkansas State Bank, Richard A. McCracken successor-in�interest by merger to Southwest Assistant City Attorney Bank M&C No. N/A Date: FMoo 8Ar2,�- Form 1295: N/A Alec Barry(Mar 25,2019) 4 F ATTEST: RT Name: AL BARRY .,.0� O �O Title: PRE DENT Mar 25 2019 Mary J. KAP sY �r U _ 2 Date: _ MaryJ.Kayser(Mar 25,2019) L Mary J. Kayser ,r City Secretary Pg Contract Cgmpliance Manager By signing II acknowledge that I am the Person responsible for the monitoring and Administration of this contract, including ensuring all performance and reporting requirements. eScarlett Morales(Mar25,2019) Janie Morales Developmet Manager City of Fort Worth,Texas _ ���® Escrow Pledge Agreement to replace Completion Agreement Revised 09. 'x:2017 JLE CFA Official Release Date: 10.31.2016 Page 10 of 12 .; :'�s,�,'�TARY FT. WORTH,TX ATTACHMENT 4" Changes to Standard Agreement Escrow Pledge Agreement The Following Recitals were added to the Agreement: WHEREAS, the Developer previously executed a Completion Agreement (City Secretary Contract No. 50873) as financial security guaranteeing satisfactory compliance with the CFA Obligations for the project; and WHEREAS,the Developer desires to replace the Completion Agreement with this Escrow Agreement; and The word "all" in the following recital was amended to read "the remaining" WHEREAS, City staff has determined that the amount of this Escrow Agreement is adequate financial security to guarantee satisfactory compliance by the Developer with the remaining CFA Obligations; and Section 1 —amend to read as follows: "Security Funds" shall mean the cash deposit of THIRTY -EIGHTY THOUSAND SEVEN HUNDRED SEVENTY FOUR DOLLARS AND SIX CENTS ($ 38,774.06) which sum represents one hundred twenty-five percent (125%) of the estimated Developer's cost of constructing the remaining CFA Obligations (the "Estimated Developer's Cost"). Section 3—change"immediately"to "within two(2)business days" Section 6—change"immediately"to "within two (2)business days" Section 10—change"NON-ACCESSIBILITY"to "'NON-ASSIGNABILITY" J . Add new section: SECTION 17. ESCROW AGENT DUTIES a. Duties Limited.The Escrow Agent shall perform only the duties expressly set forth herein and no further duties or responsibilities shall be implied. The Escrow Agent shall have no liability under and no duty to inquire as to the provisions of any agreement other than this Agreement. The Escrow Agent shall have no duty to solicit any funds that may be required to be deposited hereunder with Escrow Agent. City of Fort Worth,Texas Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 ME CFA Official Release Date: 10.31.2016 Page 9 of 12 b. Reliance. The Escrow Agent may rely upon, and shall be protected in acting or refraining from acting upon, any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document. C. Good Faith. The Escrow Agent shall not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines that the Escrow Agent's, negligence, gross negligence or willful misconduct was the primary cause of any loss to Fort Worth or Developer. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys (and shall be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants and other skilled persons to be selected and retained by it. d. Adverse Claim; Interpleader. If there is any disagreement or dispute in connection with this Agreement or the subject matter hereof, or in the event of adverse or inconsistent claims or demands upon,or inconsistent instructions to,Escrow Agent, or if Escrow Agent in good faith is in doubt as to what action to take pursuant to this Agreement,Escrow Agent may, at its election,refuse to comply with any such claims, demands, or instructions, or refuse to take any other action pursuant to this Agreement until: (i) the rights of all persons involved in the d spute have been fully and finally adjudicated by a court of competent jurisdiction; or (ii) all disputes have been resolved between the parties involved, and Escrow Agent has received written notice thereof satisfactory to it from all such persons. Without limiting the generality of the foregoing, Escrow Agent may, at its election, institute an action for interpleader and deposit the Escrow Fund or any portion thereof into the registry of a court of competent jurisdiction in Tarrant County, Texas, or commence judicial proceedings for declaratory judgment, and Escrow Agent shall be entitled to recover from Developer, its attorneys' fees and costs in connection with any such interpleader or declaratory judgment action. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. City of Fort Worth,Texas Escrow Pledge Agreement to replace Completion Agreement Revised 09.07.2017 ME CFA Official Release Date: 10.31.2016 Page 10 of 12