HomeMy WebLinkAboutContract 39685CITY SECRETARY
CONTRACT NO. ,��1�R'1.
ECONOMYC DEVELOPMENT P124GRA1V1 AGREEMENT
This ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ("Agreement") is
entered into by and between the CITY OF FORT WORTH, TEXAS (the "City"), a home rule
municipal corporation organized under the laws of the State of Texas, and CYPRESS
EQUITIES II, L.P. ("Developer"), a Texas limited partnership.
RECITALS
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 Agreement:
A. The City owns certain reai property in the Evans and Rosedale Urban Village (the
"Development Property"), as more specifically depicted and described in Exhibit "A",
attached hereto and hereby made a part of this Agreement for all purposes. The Development
Property is currently a vacant lot.
B. The City and Cypress Equities I, LP ("Cypress I"), the predecessor in interest to
Developer, previously entered into that certain Purchase Contract dated on or about July 25,
2007, pursuant to which the City granted Developer an option to purchase certain City -owned
real property in the Evans and Rosedale Urban Village, including the Development Property, in
order to redevelop such property in accordance with a master plan undertaken by and between
the Fort Worth Local Development Corporation and Developer pursuant to that certain Master
Development Agreement between those parties dated July 20, 200T The above -referenced
Purchase Agreement is a public document on file in the City Secretary's Office as City Secretary
Contract No. 35571, as amended by City Secretary Contract Nos. 36454, 35571-A2, and 35571-
0 (collectively, the "Purchase Agreement").
C. Developer wishes to purchase the Development Property pursuant to the Purchase
Agreement in order to make certain site improvements (the "Site Improvements") necessary for
construction of a Jack in the Box restaurant (the "Development"). The Site Improvements and
their estimated costs are more specifically described in Exhibit "B", which is attached hereto
and hereby made a part of this Agreement for all purposes. The Development is generally
depicted in the schematics attached hereto as Exhibit "C", which is hereby made a part of this
Agreement for all purposes. Due to the current state of the financial markets, Developer has
requested that the City loan Developer up to $390,000.00 in order to finance the purchase of the
Development Property and construction of the Site Improvements. Certain additional Public
Improvements necessary for the Development will be constructed on or in the vicinity of the
Development Property. These public improvements will be financed with City bond funds
available for enhanced community facilities under the City's 2004 Capital Improvement Program
pursuant to an Enhanced Community Facilities Agreement between the City and the LDC (the
"Entranced Community Facilities Agreement"). Developer will manage construction of such
OFFICIAL
RECORD
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Economic Development Program Agreement between FT. . WORTH TX
City of Port worth and Cypress Equities 11, L.P. (Evans &. Rosedale) ,
public improvements on behalf of the I.M. pursuant to a Construction Management Agreement
between the LDC and Developer (the "Construction Management Agreement").
D. The City Council believes that the Development will serve as a catalyst for much -
needed private investment and development in the Evans and Rosedale Urban Village. The 2009
Comprehensive Plan, adopted by the City Council on February 24, 2009, pursuant to Ordinance
No.18492-02-2009 (the "Comprehensive Plan") recommends that the City focus on
revitalization of the Central City. The Comprehensive Plan specifies that one of the principal
means of revitalization of the Central City will be the redevelopment of distressed commercial
corridors, especially in the vicinity of urban villages, which are highly urbanized places that have
a concentration of jabs, housing units, commercial uses, public spaces, public transportation and
pedestrian activity, and are typically located along priority commercial corridors. The
Comprehensive Plan identifies the cultural district area of the City as a regional mixed -use
growth center. In 2001 the City Council selected the Evans and Rosedale Urban Village as one
of twelve community urban villages where revitalization efforts were most needed and where use
of public incentives could most sensibly be focused.
E. As recommended by the Comprehensive Plan and in accordance with Resolution
No. 3716-03-2009, adopted by the City Council on March 10, 2009, the City has established an
economic development program pursuant to which the City will, on a case -by -case basis, offer
economic incentive packages authorized by Chapter 380 of the Texas Local Government Code
that include monetary loans and grants of public money, as well as the provision of personnel
and services of the City, to businesses and entities that the City Council determines will promote
state or local economic development and stimulate business and commercial activity in the City
in return for verifiable commitments from such businesses or entities to cause specific
infrastructure, employment and other public benefits to be made or invested in the City (the "380
Program").
F. The City Council has determined that by entering into this Agreement, the
potential economic benefits that will accrue to the City under the terms and conditions of this
Agreement are consistent with the City's economic development objectives and that promoting
redevelopment in the Central City will further the goals espoused by the Comprehensive Plan for
positive growth in the City. In addition, the City Council has determined that the 380 Program is
an appropriate means to achieve the construction of the Site Improvements, which the City
Council has determined are necessary and desirable, and that the potential economic benefits that
A ill accrue to the City pursuant the terms and conditions of this Agreement are consistent with
the City's economic development objectives as outlined in the Comprehensive Plan. This
Agreement is authorized by Chapter 380 of the Texas Local Government Code.
G. The City has determined that redevelopment of the Property for construction, use
and operation of a Jack in the Box restaurant is contingent on completion of the Site
Improvements and that completion of the Site Improvements is contingent on Developer's
receipt of the Program Loan, as provided in this Agreement. The City's analysis is specifically
based on financial information provided by Developer. The City has executed or will execute a
Loan Agreement with the Fort Worth Local Development Corporation in order to fund the
Program Loan hereunder.
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NOW, THEREFORE, in consideration of the mutuat benefits and promises contained
herein and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
AGREEMENT
1. INCORPORATION OF RECITALS.
The City Council has found, and the City and Developer hereby agree, that the recitals set
forth above are true and correct and form the basis upon which the parties have entered into this
Agreement.
2. DEFINITIONS.
In addition to terms defined in the body of this Agreement, the following terms shall have
the definitions ascribed to them as follows:
380 Program has the meaning ascribed to it in Recital E.
Advance means a disbursement by the City to Developer ox a third party, as determined
by the City, of a portion of the Loan Amount, other than the Initial Advance, pursuant to and in
accordance with this Agreement.
Advance Request means a written notice signed by Develaper and submitted to the
Director requesting an Advance, other than the Initial Advance, which notice shall include
(i) original copies of Invoices received since submission of the previous Advance Request;
(ii) except for the Initial Advance and the first subsequent Advance, an original copy of the
Contractors' Affidavit of Payment of Debts and Claims related to all Invoices included in the
previous Advance Request; (iii) except for the Initial Advance and the first subsequent Advance,
an original copy of the Contractors' Affidavit of Release of Liens related to all Invoices included
in the previous Advance Request; (iv) any other documentation reasonably requested by the City
to confirm that all Invoices included in previous Advance Requests have been paid in full;
(v) copies of all City permits issued for work on the Site Improvements that is covered in the
Invoices submitted as part of the Advance Request; (vi) documentation to show compliance with
the M/WBE Bidding Process for such work; and (vu) an estimated budget and timeline for
completion of all Site Improvements.
Affidavit of Commencement means an affidavit in substantially the same form as that
attached hereto as Exhibit "D" notifying the City that construction of the Site Improvements has
commenced.
Affidavit of Completion means an affidavit in substantially the same form as that
attached hereto as Exhibit "E" notifying the City that construction of the Site Improvements has
been completed.
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Affidavit of Payment of Debts and Claims means an affidavit in substantially the same
form as that attached hereto as Exhibit "F" pursuant to which any Contractor who submitted an
Invoice for work undertaken on the Site Improvements certifies that such Contractor has been
paid alI sums due under that Invoice.
Affidavit of Release of Liens means an affidavit in substantially the same form as that
attached hereto as Exhibit "G" pursuant to which any Contractor who submitted an Invoice for
work undertaken on the Site Improvements certifies that, in consideration for full payment of
that Invoice, such Contractor waives and releases any and all liens and claims to liens on the
Development Property.
Affiliate means all entities, incorporated or otherwise, under common control with,
controlled by or controlling Developer. For purposes of this definition, "control" means fifty
percent (50%) or more of the ownership determined by either value or vote.
Associated Loan Documents means the Deed of Trust, the Note, and the Escrow
Agreement.
Certificate of Com,�letion has the meaning ascribed to it in Section 5.3.
Closing Costs means usual and customary closing costs in acquiring the Development
Property and closing the sale of the Development Property to Jack in the Box pursuant to the
Jack in the Box Purchase Agreement including, without limitation, brokers' fees or commissions,
title policy costs, escrow fees, attorneys' fees and recording fees.
Completion Date means the date as of which the Site Improvements were completed, as
represented in the Affidavit of Completion submitted by Developer in accordance with
Section 4.9.3 and confirmed in the Certificate of Completion issued by the Director in
accordance with Section 5.3.
Comprehensive Plan has the meaning ascribed to it in Recital D.
Construction Costs means the aggregate of Hard Construction Costs and the following
costs directly expended by Developer for the Site Improvements: engineering fees; arehitecturat
and design fees; costs of third party consultants, including attorneys and environmental
consultants; developer fees; zoning fees; and costs of insurance and taxes directly related to the
construction of the Site Improvements (other than ad valorem property taxes on the Development
Property). For purposes of this Ain
greement, Construction Costs shall also include any fees
payable to the escrow agent under the Escrow Agreement,
Construction Management Agreement has the meaning ascribed to it in Recital C.
Contractor means any person or entity undertaking any work on or related to the Site
Improvements.
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Deed means a special warranty deed in a form acceptable to the City pursuant to which
Developer will, under certain circumstances set forth in this Agreement and the Escrow
Agreement, convey to the City title to the Development Property and any improvements thereon,
including the Site Improvements, free and clear of any liens or encumbrances, at no cost to the
City.
Deed of Trust means a Deed of Trust acceptable to the City and executed by Developer
that mortgages the Development Property to secure the Program Loan.
Development has the meaning ascribed to it in Recital C.
Develonmeut Property has the meaning ascribed to it in Recital A.
Director means the director of the City's Housing and Economic Development
Department or his designee.
Effective Date has the meaning ascribed to it in Section 3.
Employment Goal has the meaning ascribed to it in Section 4.8.
Enhanced Community Facilities Agreement has the meaning ascribed to it in
Recital C.
Escrow Agent means a title company chosen by Developer and approved by the City.
Escrow Agreement means an agreement between the City, Developer, and an Escrow
Agent, substantially in the form attached hereto as Exhibit "H", pursuant to which the Escrow
Agent will hold the Deed and subsequently deliver the Deed (i) if the both the Completion Date
and the Sales Date occur by the Project Deadline, to Developer contemporaneously upon Jack in
the Box's closing on its purchase of the Development Property pursuant to and in accordance
with the Jack in the Box Purchase Agreement, or (ii) if the City terminates this Agreement
because the Completion Date or the Sales Date did not occur by the Project Deadline, to the City.
Fort Worth Certified M/WBE Company means a minority or woman -owned business
that (i) has received certification as either a minority business enterprise {MBE), a woman
business enterprise (WBE) or a disadvantaged business enterprise (DBE) by the North Texas
Regional Certification Agency (NTRCA); (ii) has a principal business office located within the
corporate limits of the City; and (iii) from such principal business office performs a function or
provides a service useful or necessary for the Site Improvements for which Developer is also
seeking credit under this Agreement.
Hard Construction Costs means the aggregate of the following costs expended or
caused to be expended by Developer for the Site Improvements: actual site development and
construction costs, contractor fees, and the costs of supplies and materials.
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Indebtedness means (i) the sum of all Advances made by the City to Developer
hereunder; (ii) all Interest; and (iii) any and all other indebtedness, obligations, and liabilities of
any kind or character of Developer to the City, now or hereafter existing, pursuant to and in
accordance with this Agreement or the Escrow Agreement,
Initial Advance means the first Advance on the Program Loan in an amount equal to the
purchase price of the Development Property under the Purchase Agreement and all other costs
for which Developer is responsible thereunder, which shall be made to Developer or third party,
as determined by the City.
Interest means an amount equal to fifteen percent (15%} of the Net Sales Proceeds.
Invoices means invoices, statements, notices or other requests or demands for
Construction Costs of the Site Improvements.
Jack in the Box means Jack in the Box Eastern Division L.P., a Texas limited
partnership, or its assigns.
Jack in the Box Purchase Agreement means that certain Real Estate Purchase Contract
dated October 7, 2009, negotiated and executed by and between Cypress I, as the predecessor to
Developer (in accordance with Section 4.5 of this Agreement), and Jack in the Box pursuant to
which Jack in the Box will purchase the Development Property.
Job means a job provided to an individual.on the Development Property.
Lease means any lease, master lease, sublease, license, concession, or other agreement
(whether written or oral, or now or hereafter in effect) which grants to a third party a possessory
interest in and to, or the right to use or occupy, all or any part of the Development Property,
together with any security and other deposit or payment made in connection therewith, whether
entered into before or after the filing by or against Borrower of any petition for relief under the
United States Bankruptcy Code, I U.S.C. §101, et seq., as amended.
LDC means the Fort Worth Local Development Corporation, a Texas non-profit
corporation.
Legal Requirements means applicable federal, state and local laws, ordinances, rules
and regulations, including, but not limited to, all provisions of the City's Charter and ordinances,
as amended.
Loan Amount means an amount up to THREE I-IUNDRED NINETY THOUSAND and
No/100 Dollars ($390,OOQ.00} made by the City in multiple Advances in accordance with this
Agreement. The Loan Amount does not include any sums paid or reimbursed by the City or the
LDC pursuant to the Enhanced Community facilities Agreement.
M/WBE Bidding Process has the meaning ascribed to it in Section 4.6.
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Economic Development Program Agreement between
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M/WBE Construction Goal has the meaning ascribed to it in Section 4.6.
M/WBE Ordinance means City Ordinance No. 15330, as amended.
Ne# Sales Proceeds means Sales Proceeds less (i) the Loan Amount, and (ii) the Closing
Costs.
Note means a Promissory Note in a form acceptable to the City in the principle sum of
the Loan Amount executed and delivered by Developer payable to the order of the City,
evidencing the Program Loan.
Program Loan means the loan made in a series of Advances, not to exceed the Loan
Amount in the aggregate, by the City to Developer as part of the City's 380 Program, as
evidenced and governed by this Agreement and the Associated Loan Documents,
Pro'ect Deadline means September 30, 2010, subject to extension for Force Majeure as
provided in Section 19 hereof.
Purchase Agreement has the meaning ascribed to it in Recital B.
Purchase Date means the date as of which Developer has closed on its purchase of the
Development Property from the City pursuant to the Purchase Agreement.
Records has the meaning ascribed to it in Section 4.14.
Sales Date means the date as of which Developer has closed on its sale of the
Development Property to Jack in the Box pursuant to the Jack in the Box Purchase Agreement
executed in accordance with Section 4.7 of this Agreement.
Sales Proceeds means the purchase price paid for the Development Property and any
sums of money received by Developer under the Jack in the Box Purchase Agreement.
Site Improvements has the meaning ascribed to it in Recital C.
Subordinate Mortgal;e means any mortgage, lien instrument, pledge, Iien (statutory,
constitutional or contractual), security interest, encumbrance or charge, conditional sale or other
title retention agreement, covering all or any part of the Development Property executed and
delivered or caused by Borrower, the lien of which is subordinate and inferior to the lien of the
Deed of Trust.
Term has the meaning ascribed to it in Section 3.
Third Party Contract means any contract or agreement made by Developer or an
Affiliate with a Contractor for any work on or related to the Site Improvements.
Third Party Contract Damages has the meaning ascribed to it in Section 4.5.
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Third Party Contract Provisions has the meaning ascribed to it in Section 4.5.
This Agreement shall commence on the date of execution by the last of both parties to
this Agreement (the "Effective Date") and, unless terminated earlier in accordance with this
Agreement, shall expire on the earlier of (x) the date as of which Developer has repaid the
Program Loan plus all Interest pursuant to and in accordance with this Agreement, or (y) the date
the Deed is delivered to the City pursuant to the Escrow Agreement (the "Term").
4. VARIOUS OBLIGATIONS, GOALS, COMMITMENTS AND
REPRESENTATIONS OF DEVELOPER,
4.1. Purchase of Development Proiperiy.
Subject to Section 4.2, the Purchase Date shall occur within thirty (30} calendar
days following the Effective Date of this Agreement.
4.2. Execution of Associated Loan Documents; Delivery of Deed.
Prior to the Purchase Date, Developer and the City will execute all Associated
Loan Documents and Developer will deliver the Deed to the Escrow Agent in accordance
with the Escrow Agreement.
4.3. Execution of Construction Management Agreement.
Developer will finalize and execute the Construction Management Agreement and
the Design Agreement with the LDC within thirty (30) calendar days following the later
of the Effective Date of this Agreement, the effective date of the Enhanced Community
Facilities Agreement, or such later date as is mutually agreed in writing by both the City
and Developer.
4.4. Construction of Site Improvements.
Developer hereby agrees to construct or cause to be constructed all Site
Improvements in accordance with this Agreement by the Project Deadline.
4.5. Third Party Contract Provisions.
Developer shall include or cause to be included the following provisions in any
Third Party Contract for the Site Improvements (collectively, the "Third Party Contract
Provisions"): (i) a provision, similar in form to Section 10 of this Agreement, pursuant to
which the Contractor and any subcontractors undertaking work on the Site Improvements
agree to release, indemnify, defend and hold harmless the City from any and all damages
arising as a result of or in relation to the Site Improvements; (ii) a requirement that the
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contractor provide insurance in accordance with the minimum requirements set forth in
Section 6.1 of this Agreement, as applicable for the work to be undertaken by the
Contractor; and (iii) a requirement that the Contractor comply with all Legal Requirements.
Notwithstanding anything elsewhere to the contrary in this Agreement, it is hereby
acknowledged and agreed that the sole and exclusive remedy of the City for the failure of
Developer to meet any of the conditions contained in this Section 4.5 shall be as follows:
IF DEVELOPER ENTERS INTO ANY THIRD PARTY CONTRACT THAT
DOES NOT CONTAIN ALL OF THE ABOVE THIRD PARTY CONTRACT
PROVISIONS, AND TO THE EXTENT THAT ANY CLAIMS, DEMANDS,
LAWSUITS OR OTHER ACTIONS FOR DAMAGES OF ANY KIND, INCLUDING,
BUT NOT LIMITED TO, PROPERTY LOSS, PROPERTY DAMAGE AND/OR
PERSONAL INJURY OF ANY KIND, INCLUDING DEATH, TO ANY AND ALL
PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED,
ARISE UNDER, ON ACCOUNT OF OR IN RELATION TO THE THIRD PARTY
CONTRACT FOR WHICH THE CONTRACTOR THEREUNDER WOULD HAVE
BEEN REQUIRED TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE
CITY IF THE THIRD PARTY CONTRACT PROVISIONS HAD BEEN INCLUDED
IN THE THIRD PARTY CONTRACT ("THIRD PARTY CONTRACT DAMAGES"),
THEN DEVELOPER, AT DEVELOPER'S OWN EXPENSE, SHALL INDEMNIFY,
DEFEND (WITH COUNSEL REASONABLY ACCEPTABLE TO THE
INDEMNIFIED PARTIES HEREIN) AND HOLD HARMLESS THE CITY, THEIR
OFFICERS, MEMBERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS
(EXCLUDING DEVELOPER) AND VOLUNTEERS, FROM AND AGAINST ANY
SUCH THIRD PARTY CONTRACT DAMAGES.
4.6. Construction Snending_Goal for Fart Worth Certified M/WBE Companies.
Developer hereby agrees to use its commercially reasonable efforts to expend at
least twenty-five percent (25%) of alI Hard Construction Costs for A Improvements
with Fort Worth Certified M/WBE Companies (the "MiWBE Construction Goal" );
provided, that in considering which contractors to award contracts to, one of the key
factors Developer may consider is which contractors are competitive in their bids and
within Developer's project budget.. Developer shall coordinate all procurement and
construction activities associated with the Site Improvements through the City's M/WBE
Office and shall follow the process outlined in Exhibit "I" (the "M/WBE Bidding
Process"), attached hereto and hereby made a part of this Agreement for all purposes.
Developer shall require compliance with this Section 4.6 and the M/WBE Bidding
Process in any contract that Developer enters into for construction of the Site
Improvements. If Developer fails to meet the M/WBE Construction Goal, Developer
shall supply the Director with all documentation necessary to demonstrate compliance
with the M/WBE Bidding Process to evidence Developer's attempts to meet the M/WBE
Construction Goal.
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4.7. Execution of Jack in the Box Purchase Agreement.
Developer has entered into the Jack in the Box Purchase Agreement after
obtaining approval of such contract by the City. The City acknowledges that the City
received and approved the Jack in the Box Purchase Agreement. Developer further
agrees that it will not execute any amendment to the Jack in the Box Purchase Agreement
without the consent of the City, which will not be unreasonably withheld.
�.8. Employment Goal.
Developer agrees to set up a meeting with the City and Jack in the Box to give the
City an opportunity to review HUD requirements applicable to the Development
Property.
4.9. iteports and Filings.
4.9.1. Plan for Use of Fort Worth Certified NI/WBE Companies.
Within thirty (30} calendar days following the Effective Date or prior to
the submission of an application by or on behalf of Developer for a permit from
the City to initiate any work on the Site Improvements (including demolition
work, if any), whichever is earlier, Developer will file a plan with the Director as
to how Developer intends to meet the M/WBE Construction Goal. Developer
agrees to meet with the City's M/WBE Office and Minority and Women Business
Enterprise Advisory Committee as reasonably necessary for assistance in
implementing such plan and to address any concerns that the City may have with
such plan.
4.9.2. Affidavit of Commencement.
Developer shall submit the Affidavit of Commencement to the Director
within ten (10) calendar days following the date as of which work on the Site
Improvements has commenced. Developer shall submit to the Director an
updated Affidavit of Commencement promptly following any material change in
the information contained in a previously submitted Affidavit of Commencement.
4.9.3. Affidavit of Completion.
Developer shall submit the Affidavit of Completion to the Director within
ten (10) calendar days following the date that Developer believes all Site
Improvements have been completed in accordance with this Agreement.
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4.10. Requests for Program Loan Advances.
4.10.1. Initial Advance.
Developer will request the Initial Advance by submitting a written notice
to the Director, which notice shall include a copy of the Jack in the Box Purchase
Agreement executed in accordance with Section 4.7. Developer will submit its
request for the Initial Advance at least ten (10) business days prior to the date of
closing on the sale of the Development Property by the City to Developer
pursuant to and in accordance with the Purchase Agreement.
Developer will request Advances other than the Initial Advance by
submitting an Advance Request to the Director. Advance Requests shall be
submitted only on the first and third Monday (unless any such Monday is a City
holiday or furlough day, in which case the Advance Request will be due on the
next City business day) of each month from the Purchase Date until the Sales
Date.
4.11. Obli>=ation to Pay Indebtedness.
Subject to Section 7.12.1, Developer hereby agrees to pay the City the
Indebtedness in full on or before the Sales Date; provided, however, that Developer's
liability and obligation to pay the principal amount of the Program Loan will be limited
to the amount of Sales Proceeds received by Developer and Developer's obligation to pay
Interest and any other Indebtedness will be limited to the amount of Net Sales Proceeds
received by Developer in connection with the consummation of the Closing under the
Jack in the Box Purchase Agreement. Accordingly, if the Sales Proceeds and Net Sales
Proceeds are insufficient for Developer to fully discharge the Indebtedness, any
outstanding balance on the Indebtedness shall be forgiven and deemed an economic
development grant by the City to Developer, as authorized by Chapter 380 of the Texas
Local Government Code,
4.12. Payment of Invoices Received after Sales Date.
Developer shall be responsible and liable for payment of any Invaices that are
received after the Sales Date.
4.13. Inspection of Development Property and Site Improvements.
At any time between the Purchase Date and the Sales Date, and following
reasonable advance notice to Developer, the City shall have, and Developer shall provide
or cause to be provided, access to the Development Property and any improvements
thereon in order for the City to inspect the Development Property and evaluate the Site
Improvements to ensure compliance with the terms and conditions of this Agreement and
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the Associated Loan Documents. Developer will cooperate fully with the City during any
such inspection and/or evaluation. Notwithstanding the foregoing, Developer shall have
the right to require that any representative of the City be escorted by Developer's
designated personnel while on the Development Property.
�1.14. Audits.
The City will have the right throughout the Term to audit the financial and
business records of Developer that are necessary to evaluate compliance with the terms
and conditions of this Agreement and the Associated Loan Documents (collectively
"Records"). Developer shall make all Records available to the City at Developer's
offices in the City or at another location in the City acceptable to both parties following
reasonable advance notice by the City and shall otherwise cooperate fully with the City
during any audit.
4.15. Na La�vsuits or Similar Actions.
There are no actions, sui#s or proceedings pending or, to the knowledge of
Developer, threatened in any court or before or by any governmental entity against or
affecting Developer that could affect the validity, enforceability or priority of the
Program Loan. The consummation and the performance of any of the terms and
conditions of this Agreement and the Associated Loan Documents will not result in a
breach of, or constitute a default in, any mortgage, deed of trust, lease, promissory note,
loan agreement, credit agreement, partnership agreement or other agreement to which
Developer is a party or by which Developer may be bound or affected.
Valid and Binding Obli a�tio_n�.
This Agreement constitutes, and each of the Associated Loan Documents
contemplated herein constitutes or will, upon execution by all parties thereto, constitute,
valid and binding obligations of Developer, enforceable in accordance with their terms.
S. CITY OBLIGATIONS.
5.1. Program Loan Commitment.
As part of the 380 Program, the City hereby agrees to lend up to but not in excess
of the Loan Amount to Developer, and Developer hereby agrees to borrow such sum
from the City, all upon and subject to the terms and provisions of this Agreement, as
evidenced by the Note.
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5.2. Advances.
5.2.1. Initial Advance.
The Initial Advance shalt be made by the City and used solely to discharge
all of Developer's financial obligations under the Purchase Agreement. Provided
that the City has received Developer's request for the Initial Advance in
accordance with Section 4.10.1 and provided that all Associated Loan Documents
have been executed and Developer is not in default under any this Agreement or
any Associated Loan Document at the time, the City shall fund the Initial
Advance at such time as is necessary in order for Developer to close on its
purchase of the Development Property pursuant to and in accordance with the
Purchase Agreement.
5.2.2. Subsequent Advances.
All Advances other than the Initial Advance shall be made by the City and
used by Developer solely to pay Construction Costs for the Site Improvements
and any other costs contemplated by the Budget attached hereto as Exhibit "B"
he "Approved Costs"). Provided that all Associated Loan Documents have
been executed and Developer is not in default (after the expiration of any
applicable notice and cure periods) under this Agreement or any of the Associated
Loan Documents at the time, the City shall fund each Advance other than the
Initial Advance within ten (10) business days following receipt of a full and
complete Advance Request. If an Advance Request does not contain all required
information or documentation, the City shall promptly notify Developer and
specify the deficiency in writing.
5.3. Issuance of Certificate of Completion for Site improvements.
Within thirty (30} calendar days following receipt by the City of the Affidavit of
Completion submitted by Developer in accordance with Section 4.9.3 and assessment by
the City of the information contained therein, if the City is able to verify that the Site
Improvements have been completed in accordance with this Agreement and all Legal
Requirements, the Director will issue Developer a written certificate to that effect (the
"Certificate of Completion").
6. INSURANCE.
6.1. Required Coverage.
From and after Purchase Date, Developer shall, at Developer's expense, maintain
in force and effect on the following insurance:
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Economic Development Program Agreement bcttieccn
City of Port Norih and Cypress Equities II, L.P. (Evans &Rosedale)
• "Builder's All -Risk Completed Value" or "Course of Construction
insurance in non -reporting farm far any Site Improvements under construction
or alteration in an amount approved by the City's Risk Manager
• Commercial General Liability:
$1,000,000 per occurrence, including coverage for the following where expostue
exists and as directed by the City's Risk Manager: (i) Premises Liability;
(ii) independent contractors; (iii) products/completed operations; (iv) personal
inPry, (v) contractual liability; (vi) explosion, collapse and underground
property damage.
• Properky Damage Liability:
$1,000,000 per occurrence.
• Automobile Liability:
$1,000,000 per accident,
including, but not limited to, all owned, leased, hired or non -owned motor
vehicles used in conjunction with construction of the Site Improvements.
• Worker's Compensation:
As required by Iaw; and, Employer's Liability as follows:
$1,000,004 per accident.
6.2. Revisions to Required Coverage.
At the reasonable recommendation of the City's Risk Manager, the City may afi any
time revise insurance coverage requirements and limits required by this Agreement.
Developer agrees that within thirty (30) days of receipt of written notice from the City,
Developer will implement all such revisions requested by the City. The policy or policies of
insurance shall be endorsed to provide that no material changes in coverage, including, but
not limited to, cancellation, termination, non -renewal or amendment, shall be made without
thirty (30) days' prior written notice to the City.
6.3. Underwriters and Certificates.
Developer shall procure and maintain its insurance with underwriters authorized to
do business in the State of Texas and who are acceptable to the City in terms of solvency
and financial strength. Within thirty (30) days following adoption of this Agreement by the
City Council, Developer shall furnish the City with certificates of insurance signed by the
respective companies as proof that it has obtained the types and amounts of insurance
Pa�c I�
Economic Development Program Agreement between
City of i�ort Worth and Cypress Equities II, L.P. (Evans &Rosedale)
coverage required herein. In addition, Developer shall, on demand, provide the City with
evidence that it has maintained such coverage in full force and effect.
6.4. Deductibles.
Deductible or self -insured retention limits on any line of coverage required herein
shall not exceed $25,000 in the annual aggregate unless the limit per occurrence, or per line
of coverage, or aggregate is otherwise approved by the City.
6.5. No Limitation of Liability.
The insurance requirements set forth in this Section 6 and any recovery by the City
of any sum by reason of any insurance policy required under this Agreement shall in no way
be construed or effected to limit or in any way affect Developer's liability to the City or
other persons as provided by this Agreement or law.
7. DEFAULT.
'�.1. Failure to Complete Site Improvements.
If Developer fails to submit the Affidavit of Completion by the Project Deadline,
the City shall notify Developer in writing and Developer shall have fourteen (I4)
calendar days to submit the Affidavit of Completion in accordance with Section 4.9.3. If
Developer fails to submit the Affidavit of Completion within such time, the Completion
Date will be deemed to not have occurred by the Project Deadline and an event of default
shall occur under this Agreement.
7.2. Failure to Sell the Property to Jack in the Box by the Proiect Deadline.
An event of default shall occur under this Agreement if the Sales Date does not
occur by the Project Deadline.
7.3. Unapprayed Leases or Mortgages,
An event of default shall occur under this Agreement if, at any time between the
Purchase Date and the Sates Date, Developer enters into any Lease or grants any
Subordinate Mortgage without first obtaining the prior written consent of the City. If any
such purported Lease or Subordinate Mortgage is created or filed, Developer, at its sole
cost and expense, shall liquidate and discharge the same, and this obligation shall survive
the expiration or termination of this Agreement.
7.4. Misuse of Program Loan Funds.
An event of default shall occur under this Agreement if Developer uses any funds
comprising the Initial Advance for a purpose other than to fully discharge Developer's
Page I5
Economic Development Program Agreement between
City of Fort worth and Cypress Equities Il, L.P. {Evans &Rosedale)
financial obligations under the Purchase Agreement or if Developer uses any funds
comprising any subsequent Advance for a purpose other than to pay Approved Costs.
7.5. Default under Associated Loan Documents.
An event of default shall occur under this Agreement if Developer is in default
under any of the Associated Loan Documents or any other loan documents in connection
i
wth the Program Loan evidenced by the Note after the expiration of any applicable grace
or cure period.
7'.6. Default under Construction Management A>;reement.
An event of default shall occur under this Agreement if Developer is in default
under the Construction Management Agreement.
7.7. Failure to PaV City Taxes.
An event of default shall occur under this Agreement if, at any #ime between the
Purchase Date and the Sales Date, any City taxes owed on the Development Property by
Developer or an Affiliate or arising on account of Developer's or an Affiliate's
operations on the Development Property become delinquent and Developer or the
Affiliate does not either pay such taxes or properly follow the legal procedures for protest
and/or contest of any such taxes.
7.8. Violations of City Code,. State or Federal La►v.
An event of default shalt occur under this Agreement if, at any time between the
Purchase Date and the Sales Date, any written citation is issued to Developer or an
Affiliate due to the occurrence of a violation of a material provision of the City Code on
the Development Property or on or within any improvements thereon (including, without
limitation, any violation of the City's Building or Fire Codes and any other City Code
violations related to the environmental condition of the Development Property; the
environmental condition other land or waters which is attributable to operations on the
Development Property; or to matters concerning the public health, safety or welfare) and
such citation is not paid or the recipient of such citation does not properly follow the legal
procedures for protest and/or contest of any such citation. An event of default shall occur
under this Agreement if the City is notified by a governmental agency or unit with
appropriate jurisdiction that Developer or an Affiliate, or any successor in interest
thereto; any third party with access to any portion of the Development Property owned or
operated by Developer or an Affiliate pursuant to the express or implied permission of
Developer or an Affiliate, or any successor in interest thereto; or the City is in violation
of any material state or federal law, rule or regulation on account of any portion of the
Development Property owned or operated by Developer or an Affiliate, or on account of
improvements owned or operated by Developer or an Affiliate or any operations therein
on the Development Property (including, without limitation, any violations related to the
environmental condition of any portion of the Development Property owned or operated
Page 16
Economic Development Program Agreement bciwecn
City of Fort worth and Cypress Equities !I, L.P. (Evans &Rosedale)
by Developer or an Affiliate; the environmental condition of other land or waters which
is attributable to operations on any portions of the Development Property owned or
operated by Developer or an Affiliate; or to matters concerning the public health, safety
or welfare) and Developer does not cure such violation within thirty (30) days after
receiving notice of such violation.
7.9. Bankruntcv; Creditor Assignment.
An event of default shall occur under this Agreement immediately upon (i) the
making by Developer of a general assignment for the befit of creditors; (ii) the filing by
Developer of a voluntary petition in bankruptcy, seeking reorganization or rearranging or
taking advantage of any debtor relief laws, or an answer by Developer admitting the
material allegations of a petition filed against Developer, as the case may be, in any
bankruptcy, reorganization, insolvency, conservatorship, or other similar proceeding or
an admission by Developer in writing of an inability to pay its debts as they become due,
or (iii) the entry of an order, judgment or decree by any court of competent jurisdiction
adjudicating Developer as bankrupt or insolvent, or approving a petition seeking
reorganization of Developer or an arrangement of its debts.
7.10. General Breach.
Unless stated elsewhere in this Agreement, Developer shall be in default under
this Agreement if Developer breaches any term or condition of this Agreement and such
breach remains uncured after thirty (30) calendar days following receipt of written notice
from the City referencing this Agreement (or, if Developer has diligently and
continuously attempted to cure such breach following receipt of such written notice but
reasonably requires more than thirty (30) calendar days to cure, then such additional
amount of time as is reasonably necessary to cure, as determined by both parties mutually
and in good faith).
7.11. Performance by City on Developer's Behalf.
If Developer fails to perform any act, to take any action, or to pay any money that
Developer is required to perform, take, or pay under this Agreement or any Associated
Loan Document, or that is necessary to cure any default of Developer under this
Agreement or any Associated Loan Document, in order to protect its interest in the
Development Property under the Deed of Trust, the City may, but shall not be obligated
to, perform or cause to be performed such act or to take such action or to pay such money
following provision of written notice to Developer, whether or not the failure then
constitutes an event of default hereunder or under any Associated Loan Document. In
this event, any actual and direct expenses arising from such action shall become part of
the Indebtedness hereunder.
Page i7
Economic Development Program Agreement between
City oi'Port Worth and Cypress Equities II, L.P. (Evans & Roscdafe)
7.12. Rights and Remedies of the City.
In the event an event of default occurs after the expiration of applicable notice and
cure periods, if any, the City may, as its sole and exclusive remedies, do any one or more of
the following:
'712.1. Terminate this Agreement and the City's commitment to lend hereunder by
providing written notice to Developer, in which case, if the effective date of
termination is after the Purchase Date, the Deed will be delivered to the City in
accordance with the Escrow Agreement. Following receipt of the Deed, Developer
shall be fully discharged from its obligation to pay the City any outstanding balance
on the Indebtedness, and/or
7'.12.2. Cease any Advances hereunder until the event of default has been fully
cured.
7.13. Failure to Meet M/WBE Construction Goal and/or Employment Goal Not
Event of Default.
If Developer fails to meet the M/WBE Construction Goal, such failure shall not
constitute an event of default under this Agreement provided that Developer supplies the
Director with all documentation necessary to demonstrate compliance with the M/WBE
Bidding Process to evidence Developer's attempts to meet the WWBE Construction
Goal, as required by Section 4.6. Developer shall be presumed to have met the
Employment Goal by its completing the Site Improvements and selling the Development
Property to Jack in the Box for the construction, use and operation of a Jack in the Box
restaurant. As a result, if the actual Employment Goal is not met, such failure shall not
constitute an event of default under this Agreement or serve to penalize Developer in any
way.
$. ASSIGNMENT OF CONDEMNATION AND CASUALTY PROCEEDS.
Developer hereby transfers and assigns to the City and acknowledges that the City shall be
entitled to receive (i} any and all sums which may be awarded and become payable to Developer
for condemnation of all or any part of the Development Property and (ii} the proceeds of any and
all insurance upon the Development Property (other than the proceeds of general public liability
insurance) provided in accordance with this Agreement. Any sums so received by the City
pursuant to this Section 8 may, in the City's sole discretion, be provided back to Developer for
restoration of the Development Property (if the sums were received as a result of casualty), in the
amounts, manner, method and pursuant to such requirements in documents as the City may
require, or shall be applied to the liquidation of the Indebtedness in accordance with the
provisions of this Agreement and the Associated Loan Documents.
Page t 8
Economic Development Program Agreement between
City of Port lvorth and Cypress Equities I[, L.P. (Evans R: Rosedale)
9. INDEPENDENT CONTRACTOR.
IL is expressly understood and agreed that Developer shall operate as an independent
contractor in each and every respect hereunder and not as an agent, representative or employee of
the City. Developer shall have the exclusive right to control all details and day-to-day operations
relative to the Development Property and any improvements thereon and shall be solely
responsible for the acts and omissions of its officers, agents, servants, employees, contractors,
subcontractors, licensees and invitees. Developer acknowledges that the doctrine of respondeat
superior will not apply as between the City and Developer, its officers, agents, servants,
employees, contractors, subcontractors, licensees, and invitees. Developer further agrees that
nothing in this Agreement will be construed as the creation of a partnership or joint enterprise
between the City and Developer.
DEVELOPER, AT NO COST TD THE CITY, AGREES TO DEFEND, INDEMNIFY
AND HOLD THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES,
HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND
EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR
PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO
DEVELOPER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR
PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF
OR BE OCCASIONED BY (i) DEVELOPER'S BREACH OF ANY OF THE TERMS OR
PROVISIONS OF THIS AGREEMENT OR (ii) ANYNEGLIGENT ACT OR OMISSION OR
INTENTIONAL MISCONDUCT OF DEVELOPER, ITS OFFICERS, AGENTS,
ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR
SUBCONTRACTORS, RELATED TO THE SITE IMPROVEMENTS AND ANY
OPERATIONS AND ACTIVITIES ON THE DEVELOPMENT PROPERTY OR
OTHER WISE TO THE PERFORMANCE OF THIS AGREEMENT.
11.. NOTICES.
All written notices called for or required by this Agreement shall be addressed to the
following, or such other party or address as either party designates in writing, by certified mail,
postage prepaid, or by hand delivery:
City of Fort Worth
Attn: City Manager
1000 Throckmorton
Fort Worth, Texas 76102
Developer:
Cypress Equities
Attn: Kirk Williams
8343 Douglas Avenue, Suite 300
Dallas, Texas 75225
Page 19
Economic Development Program Agreement between
City of Fort worth and Cypress Equities tI, I..P. {Evans &Rosedale)
w11-11 copies to: wide a copy to:
the City Attorney and Liechty & McGinnis, LLP
Director, Housing/Economic 11910 Greenville Avenue, Suite 400
Development Department Dallas, Texas 75243
at the same address Attn: Kevin P. McGinnis, Esq.
12. ASSIGNMENT AND SUCCESSORS.
Developer may at any time assign, transfer or otherwise convey any of its rights or
obligations under this Agreement to an Affiliate that is in good standing to do business in the
State of Texas, as determined by the Texas Secretary of State, without the approval of the City so
long as Developer, the Affiliate and the City first execute an agreement under which the Affiliate
agrees to assume and be bound by all covenants and obligations of Developer under this
Agreement. Otherwise, Developer may not assign, transfer or otherwise convey any of its rights
or obligations under this Agreement to any other person or entity without the prior consent of the
City Council, which consent shall not be unreasonably withheld, conditioned on (1) the prior
approval of the assignee or successor and a finding by the City Council that the proposed assignee
or successor is financially capable of meeting the terms and conditions of this Agreement and
ji) prior execution by the proposed assignee or successor of a written agreement with the City
under which the proposed assignee or successor agrees to assume and be bound by all covenants
and obligations of Developer under this Agreement. Any attempted assignment without the City
Counc'I's prior consent shall constitute grounds for termination of this Agreement and the
Abatement granted hereunder following ten (10) calendar days of receipt of written notice from the
City to Developer. Any lawful assignee or successor in interest of Developer of all rights under
this Agreement shall be deemed "Developer" for all purposes under this Agreement.
13. COMPLIANCE WITH LAWS. ORDINANCESsRULES AND REGULATIONS.
This Agreement will be subject to alI Legal Requirements.
14. GOVERNMENT.AL POWERS.
It is understood that by execution of this Agreement, the City does not waive or surrender
any of its governmental powers or immunities.
15. NO WAIVER.
The failure of either party to insist upon the performance of any term or provision of this
Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's
right to insist upon appropriate performance or to assert any such right on any future occasion.
16. VENUE AND JURISDICTION.
If
any action, whether real or asserted, at law or in equity, arises on the basis of any
provision of this Agreement, venue for such action shall lie in state courts located in Tarrant
Page 20
Economic Development Program Agreement between
City of Fort Worth and Cypress Equities II, L.P. (Evans &Rosedale)
County, Texas or the United States District Court for the Northern District of Texas — Fort Worth
Division. This Agreement shall be construed in accordance with the laws of the State of Texas.
17. SEVERABILITY.
if any provision of this Agreement is held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in any way be affected
or impaired.
18. NO THIRD FARTY RIGITTS.
The provisions and conditions of this Agreement are solely for the benefit of the City and
Developer, and any lawful assign or successor of Developer, and are not intended to create any
rights, contractual or otherwise, to any other person or entity.
19. FORCE MAJEURE.
It is expressly understood and agreed by the parties to this Agreement that if the
performance of any obligations hereunder is delayed by reason of war, civil commotion, acts of
God, strike, inclement weather, shortages or unavailability of labor or materials, unreasonable
delays by the City (based on the then -current workload of the City department(s) responsible for
undertaking the activity in question) in issuing any permits, consents, or certificates of
occupancy or conducting any inspections of or with respect to the Development, or other
circumstances which are reasonably beyond the control of the party obligated or permitted under
the terms of this Agreement to do or perform the same, regardless of whether any such
circumstance is similar to any of those enumerated or not, the party so obligated or permitted
shall be excused from doing or performing the same during such period of delay, so that the time
period applicable to such design or construction requirement shall be extended for a period of
time equal to the period such party was delayed.
20. INTERPRETATION.
In the event of any dispute over the meaning or application of any provision of this
Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly
for or against any party, regardless of the actual drafter of this Agreement.
21. CAPTIONS.
Captions and headings used in this Agreement are for reference purposes only and shall
not be deemed a part of this Agreement.
22. ENTIRETY OF AGREEMENT.
This Agreement, including any exhibits attached hereto and any documents incorporated
herein by reference, contains the entire understanding and agreement between the City and
Developer, and any lawful assign and successor of Developer, as to the matters contained herein.
Page 21
Economic Development Progcam Agreement bettivecn
City of Fort Worth and Cypress Equities[(, L.P. (Evans & Itoscdale)
Any prior or contemporaneous oral or written agreement is hereby declared null and void to the
extent in conflict with any provision of this Agreement. Notwithstanding anything to the
contrary herein, this Agreement shall not be amended unless executed in writing by both parties
and approved by the City Council of the City in an open meeting held in accordance with
Chapter 551 of the Texas Government Code.
23. COUNTERPARTS.
This Agreement may be executed in multiple counterparts, each of which shall be
considered an original, but all of which shall constitute one instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
Pagc.22
Economic i)cvclopment Program Agreement between
City of Port worth anJ Cypress Equities II, L,.P. (Evans & RoseJale)
EXECUTED as of the last date indicated below:
CITY OF FORT WORTH:
By:
Tom Higgins
Assistant City Manager
Date:
CYPRESS EQUITIES II, L.P., a Texas
limited partnership:
By:
Cypress Ec{uities II GP, LLC,
a Texas limited liability company,
its sole general partner:,,
APPROVED AS TO FORM AND LEGALITY:
By:
Peter Vaky
Assistant City Attorney
M&C: C-23701 8-4-09
IU �: t(► _s_ �,?
Tztle: C � � ✓
Date: /z-,2,2.-cat
Page 23
Economic Development Program Agreement between
City ofFort worth and Cypress Equities II, L.P. (Evans R: Rosedale)
0
1 ofiIt
—Description and Map Depicting the Development Property
—Site Improvements and Estimated Budget
"C" —Schematic of Development
"D" —Affidavit of Commencement
"E" —Affidavit of Completion
"F" —Contractor's Affidavit of Payment of Debts and Claims
"G" --Con#ractor's Affidavit of Release of Liens
"H" —Escrow Agreement
"T" — M/WBE Bidding Procedures
Economic Development Program Agreement bchveen
City of tort North and Cypress Equities I[, L.P. (Evans &Rosedale}
HIBIT "A"
v
Descri on and Map Depic ing the Development Prop
ty
0
8
0
N
a
1
d$
Exmolt "B"
DESCRIPTION OF SITE IMPROVEMENTS TO BE CONSTRUCTED
AND ESTIMATED CONSTRUCTION COST BUDGET
The cost of each line item of the following budget is an estimate only, and the actual cost of a
particular line item may exceed or be less than the estimated cost without penalty to
Developer. However, aggregate Advances made by the City hereunder shall not exceed the
loan Amount.
SOft CoStS
Hard
Costs
Private
Land $160,000.00
Civil/Landscape Design $0.00
Geotech $0.00
TXDOT TIA $0.00
Tree Survey $2,000.00
Materials Testing $0.00
Access Easement $3,000.00
Maintenance Agreement Waived
Permit Fees Waived
Impact Fees Waived
Water Assessment Fee Waived
Alan Review Fees Waived
Environmental $10,000.00
Title Insurance $10,000000
Borrower's counsel $50*000000
Miscellaneus Closing Costs $10,000.00
Commissions $441112.00
RE Taxes $5,000.00
Construction Management $0.00
Travel/Reimbursables $5,000800
Subtotal $139,112.00
Roadway Reconstruction $0.00
Shared Access Drive $10,800.00
Landscape/Hardscape $0.00
Clear and Grubb JIB $20,000.00
Utilities to Site $35,000400
Subtotal $65,800.00
Overall Subtotal $204,912.00
Contingency $25,088.00
Overall Total $390,000.00
Schematic of Devu ullumnt
[TO BE ATTACHED WHEN AVAILABLE)
Exhibit "D"
Affidavit of Commencement
BEFORE ME, the undersigned authority, on this day personally appeared
the of , a
("Owner"), and , the
of ("Contractor"), known to me to be the persons (collectively,
"Affiants") whose names are subscribed below, and who, being by me first duly sworn, did each
on his or her oath state as follows:
l . Owner. The name and address of Owner are:
2. Contractor. The name and address of Contractor are:
3. Original Contractors. The name and address of each original contractor (other
than Contractor) with Owner, presently known, after diligent inquiry, to the Affiants, Owner or
Contractor, that is furnishing, or will furnish, labor, service, or materials (including specifically
fabricated materials), for the construction of the Improvements, and the nature of such labor,
service or materials (including specifically fabricated materials), are as stated on Exhibit B
attached hereto and incorporated herein by reference for all purposes.
4. Pro e Owner is the owner of the real property (the "Land") situated in
_County, Texas, more particularly described as follows:
See Exhibit A attached hereto and incorporated herein by reference for all
purposes.
5. Commencement Date. Work, as contemplated by Texas Propertv Code §53.124
(c)(4), on the Improvements actually commenced on , 20_ at approximately
o'clock ..in.
6. Improvements. The improvements ("Improvements"), which are being, or will
be, constructed on the Land are generally described as follows:
with related amenities and facilities.
7. Affidavit, This Affidavit of Commencement has been jointly made by Qwrier and
Contractor by and through an authorized representative of each, the same being the Affiants, and
Exhibit "D"
Economic Development Program Agreement between
City or Port 1Vorth and Cypress Equities ti, L.P. (Evans 8: Rosedale)
may be recorded by any person with the County Clerk of the county in which the Land is
situated, whereupon it shall be deemed to have been jointly filed by Owner and Contractor.
DATED this
day of
20_
AFFIANTS:
Print Name:
Who is an authorized representative of Owner
Print Name: ,
Who is an authorized representative of Contractor
SUBSCRIBED AND SWORN BEFORE ME, on this the
My Commission Expires:
Notary Public, State of Texas
Printed or Typed Name of Notary
Exhibit "D"
Economic Development Program Agrecmcnt bettivicen
City of Fort worth and Cypress Equities ti, L.P. (Evans &Rosedale)
Exhibit
Affidavit %J Campletion
BEFORE ME, the undersigned authority, on this day personally appeared
("Affiant"), the of
("Owner"), known to me to be the person whose name
below, and who, being by me first duly sworn, did on his oath state as follows:
1. Owner. The name and address of Owner are:
a
is subscribed
2. Contractor. The name and address of the original contractor ("Contractor") are:
3. Improvements. Certain improvements ("Improvements") weze furnished under an
original contract ("Contract") between Owner and Contractor, which Improvements are
generally described as follows: with
related amenities and facilities.
4. Real Property. Owner is the owner of the real property ("Real Progerty") situated
in County, Texas, on which the Improvements were constructed and are situated,
which Real Property is more particularly described as follows:
See Exhibit A attached hereto and incorporated herein by reference for all
purposes.
5. Completion. The Improvements under the Contract between Owner and
Contractor have been completed within the meaning of Texas Property Cade §53.106(e}, and the
date of such completion was , 20� ("Date of Completion").
6. Affiant. The Affiant is an authorized representative of Owner and has been duly
authorized to execute this Affidavit of Completion and cause it to be recorded with the County
Clerk of the county in which the Real Property is situated.
NOTICE: A CLAIMANT MAY NOT HAVE A LIEN ON
RETAINED FUND5 UNLESS THE CLAIMANT FILES THE
Exhibit "E"
}~conomic Development Program Agreement between
City of Fort wonh and C}pnss Equities 11, i..P. (Evans &Rosedale)
AFFIDAVIT CLAIMING A LIEN NOT LATER THAN THE
30T" DAY AFTER THE DATE OF COMPLETION.
DATED as of the
day of , 20_.
AFFTANT:
Print Name:
Who is an authorized representative of Owner
SUBSCRIBED AND SWORN BEFORE ME, on this the day of
My Commission Expires:
Notary Public, State of Texas
Printed or Typed Narne of Notary
Eehibit "E"
Economic Development Program Agreement between
Ciry of fort 1Vonh and Cypress Equities II, L.P. (Evans R Rosedale)
Contractor's Affidavit of Payment of Debts & Claims
Project:
Owner:
Contractor:
Engineer:
The Contractor, in accordance with the Contract Documents, hereby certifies that, except
as listed below, all obligations for all materials and equipment furnished, for all work
labor, and services performed, and for all known indebtedness and claims against the
Contractor for damages arising in any manner in connection with the performance of the
Contract referenced above for which the Owner or his property might in any way be held
responsible have been paid in full or have otherwise been satisfied in full.
Exceptions: (if none, write "NONE." The Contractor shall furnish a bond acceptable to
the Owner for each exception.)
Contractor:
By:
Subscribed and Sworn to before me this day of ,
otary Public: N
My Commission Expires:
E.n,bit::r„
Economic Dcvctopment Program Agreement bctwccn
City of Fort Worth and Cypress Equities tI, L.P. (Evans & Rosedale}
Project:
Owner:
Contractor:
Engineer:
Exhibit
Contractor's Affidavit of Release of Liens
Project Number:
The Contractor, in accordance with the Contract Documents, and in consideration for the
full and final payment to the Contractor for all services in connection with the project, does
hereby waive and release any and all liens, or any and all claims to liens which the
Contractor may have on or affecting the project as a result of its contract(s) for the Project
or for performing Iabor and/or furnishing materials in any way connected with the
construction of any aspect of the project. The Contractor further certifies and warrants
that all subcontractors of labor and/or materials for the Project, except as listed below,
have been paid in full for all labor and/or materials supplied to, for, through or at the
direct or indirect request of the Contractor prior to, through and including the date of this
affidavit.
Exceptions: (If none, write "NONE." The Contractor shall furnish a bond acceptable tp
the Owner for each exception.)
Contractor:
By:
Title:
Subscribed and Sworn to before me this day of ,
Notary Public:
My Commission Expires:
Exhibit "Cr"
Economic DevcIopmt:nt Program Agreement between
City of tort North and Cypress Equities II, L.P. (Evans &Rosedale)
EXHIBIT "ri
ESCROW AGREEMENT
This ESCROW AGREEMENT ("Escrow Agreement") is made and entered
into by and between the CITY OF FORT WORTH ("City"), a home rule municipal
corporation organized under the laws of the State of Texas; CYPRESS EQUITIES II,
L.P. ("Developer"), a Texas limited partnership; and
("Escrow Agent").
RECITALS
The following statements are true and correct and form the basis of this
Agreement:
A. The City and Developer have entered into that certain Economic
Development Program Agreement on file in the City Secretary's Office as City Secretary
Contract No. (the "EDPA") pursuant to which Developer will (i) purchase
from the City certain real property located in the Evans and Rosedale Urban Village,
defined in the EDPA as the Development Property; (ii) construct or cause to be
constructed certain real property improvements, defined and identified in the EDPA as
the Site Improvements, on the Development Property, which Site Improvements are
necessary for a Jack in the Box restaurant to be constructed on the Development
Property; and (iii) sell the Development Property to Jack in the Box Eastern Division L.P.
or its assigns for construction of the restaurant itself, all as more specifically set forth in
the EDPA. In return for the economic benefits that will accrue to the City as a result of
the Development, the City, pursuant to its authority under Chapter 380 of the Texas Local
Government Code, has committed to lend Developer up to $390,000.00 to purchase the
Development Property and construct the Site Improvements, defined in the EDPA as the
"Loan". The EDPA and all Associated Loan Documents thereunder are hereby
incorporated by reference herein for all purposes.
B. Section 7 of the EDPA outlines various events of default and specifies the
remedies that are available to the City should Developer be in default under the EDPA,
among which are a right of the City to terminate the EDPA. In order to secure the Loan,
the EDPA requires Developer to, among other things, execute a Deed (as defined in the
EDPA) that conveys the Development Property and all improvements thereon, including
the Site Improvements, to the City free and clear of any liens or encumbrances at no cost
to the City and to deliver the Deed to an escrow agent pursuant to and in accordance with
this Escrow Agreement. The escrow agent will hold and deliver the Deed in accordance
with the Escrow Agreement.
Co
The City and Developer wish to appoint Escrow Agent to provide the
escrow services required under this Escrow Agreement, and Escrow Agent wishes to
accept such appointment and to provide such escrow services.
Exhibit "H" (Escrow Agreement, Page 1)
Economic Development Program Agreement between
City of Fort Worth and Cypress Equities II, L.P. (Evans &Rosedale)
AGREEMENT
In consideration of the mutual recitals, covenants, promises and obligations
contained herein and in the EDPA, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. APPOINTMENT OF ESCROW AGENT; COMPENSATION.
The City and Developer hereby appoint Escrow Agent, and Escrow Agent hereby
agrees to act, as the agent of such parties in performing the duties of the Escrow Agent
hereunder. Contemporaneously with the execution of this Escrow Agreement, the City
shall pay to Escrow Agent the sum of $ , which amount is the full base
fee which shall be deemed fully earned immediately, regardless of the actual length of
time during which this Escrow Agreement is effective. In accordance with the EDPA,
Escrow Agent's fee is a Construction Cost covered by the Loan thereunder.
2. DEPOSIT OF DEED INTO ESCROW.
Contemporaneously herewith Developer shall fully execute and deliver the Deed
as the sole escrow property to the Escrow Agent to be held in escrow as provided herein.
A copy of the Deed is attached hereto as Exhibit "A", which is hereby made a part of
this Escrow Agreement for all purposes. By executing this Agreement, Escrow Agent
hereby acknowledges receipt of the executed Deed.
3. DUTIES OF ESCROW AGENT.
3.1. Safekeepin;; of Deed.
Escrow Agent shall hold the Deed in its safekeeping and shall be
authorized to deliver and release the Deed only upon compliance with the terms
and conditions of this Agreement.
3.2. Delivery of Deed.
3.2.1. To Developer.
Once the sale of the Development Property by Developer to Jack
in the Box has occurred in accordance with the EDPA, and any related
deed and other documents have been recorded, transfer of title has
occurred, and the purchase price, Closing Costs and any other costs have
been disbursed, all as may be set forth in the Jack in the Box Purchase
Agreement, the City and Developer will provide Escrow Agent a written
Exhibit "H" (Escrow Agreement, Page 2)
Economic Development Program Agreement between
City of Fort Worth and Cypress Equities II, L.P. (Evans &Rosedale)
notice with instructions to deliver the Deed to Developer, and Escrow
Agent agrees to deliver the Deed to Developer in accordance with such
instructions. Such written notice shall only be effective if signed by the
City's duly appointed City Manager or an Assistant City Manager.
3.2.2. To the City.
If the City lawfully terminates the EDPA on account of a default of
Developer thereunder, the City will provide Escrow Agent with a written
notice to that effect with a copy of the notice of termination provided by
the City to Developer in accordance with the EDPA and with instructions
to deliver the Deed to the City, and Escrow Agent agrees to deliver the
Deed to the City in accordance with such instructions. Such written notice
shall only be effective if signed by the City's duly appointed City Manager
or an Assistant City Manager.
4. INDEMNIFICATION OF ESCROW AGENT.
Escrow Agent shall be severally indemnified (to the extent permitted by law) and
held harmless by the City and Developer from and against any and all liability, including all
expenses reasonably incurred in its defense, to which Escrow Agent shall be subjected by
reason of any act or omission of Escrow Agent pursuant to this Escrow Agreement, unless
caused by the negligence or willful misconduct of Escrow Agent. To the extent permitted
by law, the costs and expenses of enforcing this right shall be borne equally by the City and
Developer, jointly and severally. This Section 4 shall survive the termination of this Escrow
Agreement and/or the resignation or removal of Escrow Agent. Nothing contained herein
shall alter or diminish any right that the City or Developer may have under the EDPA.
5. RIGHTS AND REMEDIES OF ESCROW AGENT.
5.1. Escrow Agent may rely and shall be protected in acting or refraining from
acting upon any written notice, instruction or request furnished to it in accordance
with and as specified by this Agreement and believed by it to be genuine and to have
been signed or presented by the proper party or parties and to take statements made
therein as authorized and correct without any affirmative duty of investigation.
5.2. Escrow Agent may consult with and rely on the advice of counsel
satisfactory to it at any time in respect to any question relating to its duties or
responsibilities hereunder or otherwise in connection herewith, and shall not be
liable for any action taken, suffered, or omitted by Escrow Agent in good faith upon
the advice of such counsel, and shall be fully protected in doing so. Escrow Agent
may act through its officers, employees, agents and attorneys.
Exhibit "H" (Escrow Agreement, Page 3)
Economic Development Program Agreement between
City of Fort Worth and Cypress Equities lt, L.P. (Evans &Rosedale)
5.3. Escrow Agent shall not be liable for anything that it may do or refrain from
doing in connection herewith, except on account of its own negligence or willful
misconduct.
5.4. Escrow Agent's only duty, liability and responsibility shall be to hold the
Deed as herein directed and to deliver the same under such conditions as set forth
herein.
5.5. Escrow Agent shall act as a depositary only, and Escrow Agent is not a party
to, and is not bound by or charged with notice of, any agreement out of which this
escrow may arise, other than this Escrow Agreement. Escrow Agent shall not be
responsible or liable in any manner whatever for the sufficiency, correctness,
genuineness or validity of the subject matter of the escrow or any part thereof, the
form or execution thereof or the identity or authority of any person executing or
depositing under it.
5.6. In the event that any controversy arises as to any party with respect to this
Escrow Agreement, Escrow Agent shall have the right to institute a bill of
interpleader in any court of competent jurisdiction to determine the rights of the
parties. Should a bill of interpleader be instituted, or should Escrow Agent become
involved in litigation in any manner whatsoever on account of this Agreement or the
escrow deposit made hereunder, and to the extent permitted by law, the City and
Developer shall each pay one half (1/2) of Escrow Agent's reasonable attorneys'
fees and other expenses incurred by Escrow Agent in connection therewith.
5.7. The delivery of the Deed in accordance with this Agreement shall be valid
and effective to discharge the liability of the Escrow Agent with respect thereto.
Upon delivery of the Deed in accordance with the provisions hereof, the Escrow
Agent's responsibilities under this Agreement shall terminate.
6. RESIGNATION AND REMOVAL OF ESCROW AGENT.
Al
Resignation.
Escrow Agent, or any successor, may resign as Escrow Agent and be
discharIned from its duties hereunder upon thirty (30) days' prior written notice
thereof to both the City and Developer provided that the City and Developer are able
to secure the appointment of a successor escrow agent that accepts the appointment
and agrees to be bound by the provisions of this Escrow Agreement. Such
resignation shall become effective upon the appointment by the City and Developer
of a successor escrow agent that accepts the appointment and agrees to be bound by
the provisions of this Escrow Agreement. Upon the effectiveness of such
resignation, all duties of Escrow Agent so resigning shall cease.
6.2. Removal.
Exhibit "H" (Escrow Agreement, Page 4)
Economic Development Program Agreetnent between
City of Fort Worth and Cypress Equities II, L.P. (Evans &Rosedale)
The City and Developer shall have the right when acting together to
terminate the appointment of Escrow Agent hereunder by giving written notice
thereof to Escrow Agent, specifying the date upon which such termination shall take
effect. A condition precedent to such termination shall be the designation of a
successor escrow agent that has accepted the appointment and agreed to be bound by
the provisions of this Escrow Agreement. Upon receipt of such notice, Escrow
Agent shall forthwith deliver to the successor escrow agent, named in the notice, the
Deed, whereupon responsibility of Escrow Agent hereunder shall terminate.
7. NOTICES.
All written notices called for or required by this Escrow Agreement shall be
addressed to the following, or such other party or address as either party designates in
writing, by certified mail, postage prepaid, or by hand delivery,
City:
City of Fort Worth
Attn: City Manager
1000 Throckmorton
Fort Worth, TX 76102
with copies to:
the City Attorney and
Director, Housing/Economic
Development Department
at the same address
8. ASSIGNMENT.
Developer:
Cypress Equities II, L.P.
Attn:
with a copy to:
Liechty &McGinnis, LLP
Attention: Kevin P. McGinnis, Esq.
11910 Greenville Avenue, Suite 400
Has, TX 75243
Developer may not assign, transfer or otherwise convey any of its rights and
obligations under this Escrow Agreement to another party without the written consent of
the City, which consent shall not unreasonably be withheld or delayed, conditioned on
prior execution by the proposed assignee or successor of a written agreement with the
City under which the proposed assignee or successor agrees to assume all covenants and
obligations of Developer under this Escrow Agreement. Any lawful assignee or
successor in interest of Developer under this Escrow Agreement shall be deemed the
"Developer" for all purposes under this Escrow Agreement.
Exhibit "H" (Escrow Agreement, Page 5)
Economic Development Program Agreement between
City of Fortt Worth and Cypress Equities II, L.P. (Evans &Rosedale)
9. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND
REGULATIONS.
This Escrow Agreement will be subject to all applicable federal, state and local
laws, ordinances, rules and regulations, including, but not limited to, all provisions of the
City's Charter and ordinances, as amended.
10. GOVERNMENTAL POWERS.
It is understood and agreed that by execution of this Escrow Agreement, the City
does not waive or surrender any of its governmental immunities.
11. NO WAIVER.
The failure of any party to insist upon the performance of any term or provision of
this Escrow Agreement or to exercise any right granted herein shall not constitute a
waiver of that party's right to insist upon appropriate performance or to assert any such
right on any future occasion.
12. VENUE AND JURISDICTION.
If any action, whether real or asserted, at law or in equity, arises on the basis or
because of all or any portion of this Escrow Agreement, venue for such action shall He in
state courts located in Tarrant County, Texas or in the United States District Court for the
Northern District of Texas, Fort Worth Division. This Agreement shall be construed
under, and governed by, the laws of the State of Texas.
13. NO THIRD PARTY RIGHTS.
The provisions and conditions of this Escrow Agreement are solely for the benefit
of Developer, the City, and Escrow Agent, and any lawful assigns or successors thereof,
and are not intended to create any rights, contractual or otherwise, to any other person or
entity.
14. SEVERASILITY.
If any provision of this Escrow Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired.
Exhibit "H" (Escrow Agreement, Page 6)
Economic Development Program Agreement behveen
Cit)� of Fort Worth and Cypress Equities [I, L.P. (Evans &Rosedale)
15. FORCE MAJEURE.
The parties shall exercise every reasonable effort to meet their respective obligations
as set forth in this Escrow Agreement, but shall not be held liable for any delay in or
omission of performance due to force ma0eure or other causes beyond their reasonable
control, including, but not limited to, compliance with any government law, ordinance or
regulation, acts of God, acts of omission, fires, strikes, lockouts, national disasters, wars,
riots, material or labor restrictions by any governmental authority, transportation problems
and/or any other cause beyond the reasonable control of the parties.
16. INTERPRETATION.
In the event of any dispute over the meaning or application of any provision of
this Escrow Agreement, this Escrow Agreement shall be interpreted fairly and
reasonably, and neither more strongly for or against any party, regardless of the actual
drafter of this Agreement.
17. CAPTIONS.
Captions and headings used in this Escrow Agreement are for reference purposes
only and shall not be deemed a part of this Escrow Agreement.
18. ENTIRETY OF AGREEMENT.
This Escrow Agreement, including any exhibits attached hereto and any
documents incorporated herein by reference, contains the entire understanding and
agreement between Developer and the City, and any lawful assigns and successors
thereof, as to the matters contained herein. Any prior or contemporaneous oral or written
agreement is hereby declared null and void to the extent in conflict with any provision of
this Agreement. This Agreement shall not be amended unless executed in writing by all
parties.
EXECUTED as of the last date indicated below:
Exhibit "H" (Escrow Agreement, Page '7)
Economic Development Program Agreement between
City of Fort Worth and Cypress Equities II, L.P. (Evans &Rosedale)
CITY OF FORT WORTH:
By:
Tom Higgins
Assistant City Manager
Date:
CYPRESS EQUITIES II, L.P., a Texas
limited partnership.
By: Cypress Equities II GP, LLC, a
Texas limited liability company and
its sole general partner:
By:
Name:
Title:
Date:
[ESCROW AGENT SIGNATURE BLOCK]
APPROVED AS TO FORM AND
LEGALITY:
By:
Peter Vaky
Assistant City Attorney
Exhibit "H" (Escrow Agreement, Page 8)
Economic Development Program Agreement between
City of Fort Worth and Cypress Equities II, L.P. (Evans &Rosedale)
EXHIBIT
DEED
Exhibit "H" (Escrow Agreement, Page 9)
Economic Development Prograrn Agreement between
City of Fort North and Cypress Equities II, L.P. (Evans &Rosedale)
Exhibit "I"
M/WBE Bidding Process
Minority and Women Business Enterprise Provisions:
All bidders shall note that it is the policy of the City of Fort Worth and the U.S. Department of Housing and
Urban Development (HUD) to ensure the full and equitable participation of Disadvantaged / Minority and
Women Business Enterprises (MWWBE) in the procurement of services with a fee of $25,000 or more by
establishing an M/WBE goal. On this project, the MWWBE goal is 25%. Of that 25% MWBE goal, 10%
participation is to come from Fort Worth MWBE firms.
The M/WBE participation information shall be submitted with the bid and shall include: (1) the name,
address and telephone number of each MWWBE firm; (2) the description of the work to be performed by
each M/WBE; and the approximate dollar amount/percentage of the work will be to the total dollars bid.
The MWWBE firms) must be located or doing business in the City's geographic market area at the time of
bid opening. The City's geographic market includes the following nine (9) countries: Tarrant, Parker,
Johnson, Collin, Dallas Denton, Ellis, Kaufman and Rockwall. The M/WBE firm(s) must also be currently
certified as such or in the process of being certified by the North Central Texas Regional Certification
Agency (NCTRCA) or Texas Department of Transportation (TXDOT), Highway Division.
If you failed to meet the stated M/WBE goal, in part or in whole, then a detailed explanation must be
submitted to explain the Good and Honest Efforts your firm put forth to achieve the goal. Good Faith
Efforts must include but are not limited to:
❖ obtaining a listing of current MWWBE firms from the of City of Fort Worth website,
www.fortworthgov.org/applications/mwbe_siccode/, and
•S submission of the list of M/WBE firms contacted by at least two (2) of the four (4) following
methods: mail, electronic mail, telephone, and fax;
❖ contact with the M/WBEs should be timely (ample time to allow the M/WBEs to secure plans and
submit a bid)
Failure to submit the MWWBE participation information or the detailed explanation of the bidder's Good
and Honest Efforts to meet or exceed the stated M/WBE goal, may render the bid non -responsive. The
MWWBE utilization will be part of the final selection criteria.
In our contract please include the following:
1) Insert advertising data to include the following special instructions to bidders:
• Bid submittal deadline date including date, time, and location
• Bid opening date, time, and location
• Construction documents may be reviewed at address, time frame, telephone number, and contact
person
• M/WBE goal
2) Bid opening date may not occur before the 1 lth work day after submittal deadline date.
• For Example: February 1 and 8, 2010 bids are placed in the newspaper. The earliest submittal
deadline is February 15, 2010. Bid opening may also occur as early as February 15, 2010.
• Bids will be presented to the public on two consecutive weeks in a major local daily news
publication
Economic Development Program Agreement
between CiTy of Fort Worth and Cypress Equities II, L.P. (Evans &Rosedale)
M&C P=.eview Page 1 of 2
Cifficiaf site of the City of Fort Worth, Texas
FOlr�l'%'��1�Ti>
COUNCIL ACTION: Approved on 8/4/2009
DATE: 8/4/2009 REFERENCE NO.: C-23701 LOG NAME: 17380 LOAN
CYPRESS
PUBLIC
CODE: C TYPE: NON -CONSENT HEARING: NO
SUBJECT: Authorize the Execution of Economic Development Program Agreement to Loan Cypres
Equities, L.P., Up to $390,000.00 for the Acquisition, Design and Construction of
Improvements on Property in the Evans and Rosedale Urban Village and the Execution
of a Loan Agreement with the Fort Worth Local Development Corporation in the Amounl
of $390,000.00 to Fund that Economic Development Program Agreement
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to:
1. Execute an Economic Development Program Agreement with Cypress Equities, L.P., for a loan up 1
$390,000.00 for property acquisition, design and construction of improvements on property located in
Evans and Rosedale Urban Village (Lots 13R and 17R, Block 3, being a replat of Lots 13-17 and 24-2
Block 3, W.J. Boaz Subdivision, Evans South Addition); and
2. Execute a Loan Agreement with the Fort Worth Local Development Corporation in the amount of
$390,000.00 in order to fund the above -referenced Economic Development Program Agreement with
Cypress Equities, L.P.
DISCUSSION:
On June 5, 2007, the City of Fort Worth (City) entered into a Purchase Agreement with Cypress Equiti
L.P. (Cypress) to sell certain City -owned properties in the Evans and Rosedale Urban Village (M&C L-
14331). The deadline under the Purchase Agreement for closing on the sale of these properties was
extended on December 16, 2008, (M&C L-14687) and on July 14, 2009, (M&C L-14801) to allow Cypr
additional time to attract private development to the area. Cypress has been in negotiations with Jack -
the -Box to locate a restaurant on one of the properties in question (Lots 13R and 17R, Block 3, being
replat of Lots 13-17 and 24-28 of Block 3, W.J. Boaz Subdivision, Evans South Addition) (the Property
Due to current financial market conditions, Cypress has requested that the City loan Cypress funds nc
exceed $390,000.00 (the Chapter 380 Loan Agreement) in order to purchase the Property, to clear an
grade the Property for the Jack -in -the -Box pad and to construct driveways to serve the site. The City is
authorized to make such a loan pursuant to Chapter 380 of the Texas Local Government Code, which
allows the City to make grants and loans for economic development purposes. The due diligence that
in -the -Box has is 120 days with an extension of two 30 day periods, if needed.
As a result, staff recommends that the City enter into a Loan Agreement with Cypress that contains the
following terms and conditions:
Chapter 380 Loan Agreement:
• The City loan Cypress up to $390,000.00 for acquisition of the Property and for the design and
construction of improvements necessary to make the Property pad site ready for Jack -in -the -Box;
• Cypress will negotiate in good faith in the sale of the Property with Jack -in -the -Box;
• Cypress will follow the City' s procurement and bidding process for use of Minority/Women-owne
http://apps.efwnet.org/council�acket/mc review.asp?ID=12104&councildate=8/4/2009 1/4/2010
M&C Review
Page 2 of 2
Business Enterprise (M/WBE) firms in the construction of the improvements and will document a good
effort to reach a goal of 25 percent M/WBE participation in the construction of the improvements;
• Cypress will repay the loan, plus interest equal to 15 percent of the net proceeds of the sale of tl
Property to Jack -in -the -Box, within one year or such time as the City and Cypress reasonably agree, k
on the projected construction schedule and due diligence requirements of Jack -in -the -Box; and
• The Property will be secured as collateral to guarantee repayment of the loan.
The funding source for the Chapter 380 Loan Agreement will be a loan to the City of up to $390,000.0�
from the Fort Worth Local Development Corporation (LDC). The City and LDC will enter into a loan
agreement that contains the following terms and conditions:
City/LDC Loan:
• LDC will loan the City $390,000.00 in order for the City to fund the Chapter 380 Loan Agreemen�
term of the loan will be one year or such time as the City and LDC reasonably agree, based on Cypre:
projected construction schedule and due diligence requirements of Jack -in -the -Box;
• The City will repay the loan to the LDC by transferring all funds received from Cypress Equities
pursuant to Chapter 380 Economic Loan Agreement (the loan repayment plus interest); and
• If Cypress does not complete the sale of the Property to Jack -in -the -Box, Cypress will deed the
improved Property to the LDC as repayment of the loan to the City.
The property is located in COUNCIL DISTRICT 8.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that upon approval of the above recommendatic
sufficient funds will be available in the General Fund.
TO Fund/Account/Centers
GG01 220152 0000000 $390,000.00
Submitted for City Manager's Office by:
Originating Department Head:
Additional Information Contact:
ATTACHMENTS
FROM Fund/Account/Centers
R136 136001 0000000
GG01 124950 0000000
Thomas Higgins (6140)
Jay Chapa (5804)
Cynthia Garcia (8187)
Dolores Garza (2639)
$390,000.00
$390,000.00
http://apps.cfwnet.org/council�acket/mc review.asp?ID=12104&councildate=8/4/2009 1/4/2010