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HomeMy WebLinkAboutContract 52446 CITY SECRETARY Jog CONTRACT NO.,�5��o ESCROW AGREEMENT C1S`(SEGFt��P�`; THIS ESCROW AGREEMENT ("Escrow Agreement") is made and entered into as of �. , 2019 ("Effective Date") by and among CITY OF FORT WORTH, a Texas dome rule municipal corporation ("City"), BURNETT LOFTS, LLC, a Texas limited liability company ("Owner") and COMMONWEALTH LAND TITLE INSURANCE COMPANY ("Escrow Agent"). RECITAL City, Owner and Escrow Agent hereby desire to establish the terms of the escrow (the "Escrow") under which the Easement Agreement attached hereto as Exhibit B (the "Escrowed Document") will be deposited for the purposes described herein. All capitalized terms used herein and not defined have the meanings given in the Escrowed Document. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows: 1. Escrow Agent. City and Owner hereby retain Escrow Agent, and Escrow Agent agrees to be retained, to act as Escrow Agent for the purposes set forth in this Escrow Agreement. Escrow Agent agrees to undertake and perform the obligations and duties provided for in this Escrow Agreement. There shall be no fees charged by Escrow Agent in conjunction with its provision of services as provided herein. 2. Escrowed Document. Upon the execution hereof, Owner and City shall execute, acknowledge and deliver to Escrow Agent the Escrowed Document. This Agreement applies only to the Escrowed Document. 3. Completion and Amendment of Escrowed Document. City and Owner acknowledge that the location of the Parking Easement Area cannot be determined as of the Effective Date. At such time as the location of the Parking Easement Area may be determined with certainty by Owner, Owner shall submit a description of the Parking Easement Area, which has been approved in writing by City, whose approval shall not be unreasonably withheld, conditioned or delayed, to Escrow Agent and Escrow Agent shall cause said description to be attached to the Escrowed Document as Exhibit B thereto. Thenceforth, the completed Escrowed Document shall be incorporated herein and attached hereto as Exhibit B, thereby deleting and replacing in its entirety the document attached hereto as Exhibit B as of the Effective Date. Apart from the above described completion of the Escrowed Document, the Escrowed Document may be amended, modified or cancelled, in whole or in part, only by an instrument in writing executed by the parties hereto. 4. Distribution. At the closing pursuant to which Owner acquires from City the land described on Exhibit A attached hereto (the "Property"), Escrow Agent shall cause the Escrowed Document to be recorded with the appropriate local recording offices and after recording, returned to City. The Escrow Agent agrees that the Escrowed Document Lai] he d-pier OFFICIAL RECORD' America:0 10 5 896/00004:71559445v.2 CITY SECRETARY FT. WORTH TX to recording any deed of trust, mortgage or other security agreement entered into by the Owner in connection with its acquisition of the Property, or if after any deed of trust, mortgage or other security agreement, then upon Escrow Agent's receipt of a subordination from the holder of such instrument that is in a form that, when recorded, would enable the Escrow Agent to issue a title policy that did not show such an instrument in a superior position to the Escrowed Document. 5. Escrow Agent Provisions. The terms and conditions governing certain of the obligations and rights of the Escrow Agent are attached hereto as Exhibit C and are hereby incorporated herein and made a part hereof by this reference. 6. No Third Party Rights. No term or provision of this Escrow Agreement is intended to benefit any person, partnership, corporation or other entity not a party hereto (including, without limitation, any broker) and no such other person, partnership, corporation or entity shall have any right or cause of action hereunder. 7. Disputes and Attorneys' Fee. If there is any litigation proceeding commenced to enforce any provisions or rights arising herein in accordance with this Escrow Agreement, the non- prevailing party in such litigation shall pay the prevailing party all costs and expenses (including, but not limited to, reasonable attorneys' fees) incurred by the prevailing party, such fees to be reasonably determined by the applicable court. 8. Notices. All notices required to be given hereunder shall be in writing and shall be given by personal delivery (including by any messenger or courier service), by electronic facsimile transmission or by certified or registered U.S. mail, postage prepaid, with return receipt requested, as follows: If to the City: City of Fort Worth 200 Texas Street Fort Worth, Texas 76102 Attention: Jesus Chapa with a copy to: City Attorney City of Fort Worth 200 Texas Street Fort Worth, Texas 76102 Attn: Leann Guzman If to Owner: Burnett Lofts, LLC c/o Catalyst Urban Development, LLC 7001 Preston Road, Fifth Floor Dallas, Texas 75205 with a copy to: Locke Lord LLP 2 America:0105896/00004:715 59445v.2 2200 Ross Avenue, Suite 2800 Dallas, Texas 75201 Attn: J. Mitchell Bell If to Escrow Agent: Commonwealth Land Title Insurance Company 5949 Sherry Lane, Suite 111 Dallas, Texas 75225 Attn: Patrick N. Jackson Notice given by personal delivery shall be deemed given and received upon delivery to the appropriate address, if the delivery is made during normal business hours on a business day (and on the first business day following the day of delivery if the delivery is made other than during normal business hours on a business day). Notice given by U.S. mail shall be deemed given upon deposit in the U.S. mail and to have been received on the second business day following the date on which it was given. Each party may from time to time designate, by a notice given as provided herein, a different notice address. Any notice to be given by any party hereto may be given by the attorney for such party. 9. Modification of Escrow Agreement. The terms and provisions of this Escrow Agreement may be amended, modified or cancelled, in whole or in part, only by an instrument in writing executed by the parties hereto, except as set forth in Section 3. 10. Further instruments. All parties, promptly upon the request of any other, shall execute and have acknowledged and delivered to the other parties, any and all further instruments reasonably requested or appropriate to evidence or give effect to the provisions of this Escrow Agreement and which are consistent with the provisions hereof. 11. Assignment. No party hereto shall assign its rights, obligations, or interests in this Escrow Agreement without the prior written consent of the other party. Any purported assignment of rights or interest under this Agreement in violation of this Section 11 shall be null and void. 12. Successors and Assigns. This Escrow Agreement and the terms and provisions hereof shall be binding upon and inure to the benefit of the permitted successors and assigns of the parties hereto. 13. Entire Agreement. This Escrow Agreement represents the entire agreement between the parties covering everything agreed upon or understood with respect to the matters set forth herein. There are no oral promises, conditions, representations, understandings, interpretations or terms of any kind as conditions or inducements to the execution hereof or in effect between the parties except as specifically set forth in this Escrow Agreement. 14. Governing Law and Venue. This Escrow Agreement and the rights of the parties hereto shall be interpreted, governed and construed in accordance with the laws of the State of Texas without giving effect to its conflict of laws principles. All parties agree that any dispute arising out of this Escrow Agreement shall be determined in Tarrant County, State of Texas. 3 America:0105 896/00004:71559445v.2 15. Severability. If any provision hereof is found to be void or unenforceable, all of the remaining provisions of this Escrow Agreement shall be fully effective and shall not be affected by the void or unenforceable provision or provisions. 16. Construction. The parties agree that each parry and its counsel have reviewed and revised this Escrow Agreement and that any rule of construction, to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Escrow Agreement. 17. Incorporation of Recitals and Exhibits; Interpretation. The Recitals set forth at the beginning of this Escrow Agreement are incorporated in and made a part of this Escrow Agreement. The captions to the articles and sections of this Escrow Agreement are for convenience of reference only and in no way define, limit, describe, or affect the scope or intent of any part of this Escrow Agreement. In this Escrow Agreement, the neuter gender includes the feminine and masculine, and the singular number includes the plural, and the words "person" and "party" include corporation, partnership, individual, firm, trust or association wherever the context so requires. 18. Counterparts. This Escrow Agreement may be executed in counterparts, all of which are identical, each of which shall be deemed an original, and all of which counterparts, when executed together shall constitute one and the same instrument. 19. Time of the Essence. Time is of the essence of each and every provision of this Escrow Agreement. [The remainder of this page has been intentionally left blank. Signature pages follow.J 4 America:0105896/00004:71559445v.2 IN WITNESS WHEREOF, City, Owner and Escrow Agent have executed this Escrow Agreement as of the date first above written. CITY: CITY OF FORT WORTH, TEXAS, a Texas municipal corporation FORT By:_75;� CIL Attest: ` �C,.•• •'• •.�0 Jesus Chapa, Assistant City'Manager Mary J. K s r Cit Secretar • *•' . Approved as to form: 41 P a(AAA (OVI Assistant City Attorney OWNER: BURNETT LOFTS,LLC a Texas limited liability company By:Burnett Lofts FW Manager LL. , a Texas limited liability co a itsIm gerByN Rhys H insch Its: ice Presi et ESCROW AGENT: COMMONWEALTH LAND TITLE INSURANCE COMPANY By: v Name: 4 Its: c.e— OFFICIAL RECORD Signature Page—Escrow Agreement CITY SECRETARY America:0105896/00004:71559445v.2 FT. WORTH,TX EXHIBIT A Legal Description Being Lot I and 3R, Block 2, Lot 1R, Block 3 and Lot 1R, Block 4 of Nance's Addition, an addition to the City of Fort Worth, Tarrant County, Texas, recorded under Clerk's File No. D219059650, Real Property Records Tarrant County, Texas. Exhibit A America:0 105 896/00004:715 59445v.2 EXHIBIT B [See attached] Exhibit B America:0105896/00004:71559445v.2 EXHIBIT C Escrow Agent Provisions 1. Liability of Escrow Agent. The parties agree that the duties of Escrow Agent are purely administrative in nature and that Escrow Agent shall not be liable for any error of judgment, fact, or law, or any act done or omitted to be done, except for its own gross negligence or willful misconduct. Escrow Agent's determination as to whether(i) an event or condition has occurred, or been met or satisfied; (ii) a provision of this Escrow Agreement has been complied with, or (iii) sufficient evidence of the event or condition of compliance with the provision has been furnished to it, shall not subject it to any claim, liability, or obligation whatsoever, even if it shall be found that such determination was improper or incorrect; provided, only,that Escrow Agent shall not have been guilty of gross negligence or willful misconduct in making such determination. 2. Resignation by Escrow Agent. Escrow Agent may resign at any time upon giving the parties hereto thirty(30) days' prior written notice. In such event, City and Owner shall mutually select a firm, person or corporation to act as the successor escrow agent. The Escrow Agent's resignation shall not be effective until a successor agrees to act hereunder;provided, however, if no successor is appointed and acting hereunder within thirty (30) days after such notice is given, Escrow Agent may pay and deliver the Escrowed Documents into a court of competent jurisdiction. 3. Receipt of Notice of a Dispute. If Escrow Agent receives written notice from any party that a dispute exists with respect to which proceedings have been commenced, Escrow Agent shall retain the Escrowed Documents until the first to occur of the following: (a) Receipt by Escrow Agent of a notice signed by all parties stating that the dispute has been resolved,which notice shall contain instructions to Escrow Agent with respect to the disbursement or retention of the Escrowed Documents; or (b) Receipt by Escrow Agent of a copy of the arbitrator's award or final order of the Court resolving the dispute, after which Escrow Agent shall comply with the decision of the arbitrator or Court with respect to the disbursement or retention of the Escrowed Documents. Exhibit C America:0105 896/00004:71559445 v.2