HomeMy WebLinkAboutContract 19338 ESCROW/PLEDGE AGREEMENT G TY
THIS ESCROW/PLEDGE AGREEMENT ("the Agreement ). entered-in -5y
21—,1992, by and among Fort Worth and Western Railroad, Inc., a Texas
Corporation, ("Owner") the City of Fort Worth, Texas, a municipal corporation of
Tarrant County, Texas ("City") and First Interstate Bank of Texas, Dallas, Texas (FIBT)
is to witness the following:
WHEREAS, Owner and City have entered into a Community Facilities
Agreement for E. Exchange Avenue and N.E. 23RD Street: Railroad Grade Crossing
Improvements, to be made within the City of Fort Worth, Texas, (the "CFA"); and
WHEREAS, The CFA provides that Owner shall submit to City performance
and payment bonds, cash deposits or other security acceptable to the City (collectively,
the "Intended Security") for the purpose of guaranteeing satisfactory compliance by
Owner with all requirements, terms, and conditions of the CFA (collectively, the
"Secured Obligations)"; and
WHEREAS, Owner and City desire and agree that Owner be allowed to escrow
and pledge cash deposits to City, to be held by FIBT as Escrow Agent, in lieu of and in
complete satisfaction of the obligation to submit the Intended Security to secure the
performance of the Secured Obligations;
NOW THEREFORE, for and in consideration of the premises, ten dollars
($10.00) and other good and valuable consideration, the receipt, sufficiency, and
adequacy of which are hereby acknowledge and confessed, the parties hereto hereby
agree as follows:
SECTION 1. DEFINED TERMS.
For the purposes of this Agreement, unless the context otherwise clearly
requires, the following terms shall have the following meanings:
"Initial Security Funds" shall mean the cash deposit of $314,756 which sum
represents 100 percent of the estimated Owner's share of the cost of constructing
the improvements identified in the CFA. The Owner's share of the total cost of
such improvements shall hereinafter be called the "Estimated Owner's Cost".
"Lien" shall mean any lien, security interest, charge, tax lien, pledge or
encumbrance designed to secure the repayment of indebtedness or the
satisfaction of any other obligation to a third party not a party to this A eement.
r
"Payment and Performance Bond" shall mean a bong `b�% or orate
surety or insurance company acceptable to City in an l�mo
un A�(c st of
improvements not yet completed by Owner. t1 '! �
Escrow/Pledge Agreement Page 1
SECTION 2. PLEDGE.
As security for the full and punctual performance of the Secured Obligations,
Owner hereby pledges, assigns, and transfers to City, and hereby grants to the City a
security interest in, the Initial Security Fund and all rights and privileges pertaining
thereto with the exception of the interest income to be derived therefrom, which
interest income shall remain the property of Owner and shall be distributed by FIBT in
accordance with Owner's periodic instructions. (The Initial Security Funds and any
substitution by Owner with a Payment and Performance Bond as permitted hereunder,
are collectively referred to hereafter as the "Pledged Collateral"); TO HAVE AND TO
HOLD the Pledged Collateral, together with all rights, titles, interests, privileges, and
preferences appertaining to or incidental thereto, unto City subject, however, to the
terms, covenants, and conditions hereinafter set forth. The security interest granted
and the assignments made hereunder are made as security only and shall not subject
the City or FIBT to, or transfer or in any way affect or modify, any obligation of Owner
with respect to any of the Pledged Collateral or any transaction involving or giving
rise thereto.
SECTION 3. PHYSICAL POSSESSION OF PLEDGED COLLATERAL.
Concurrently with the execution of this Agreement, Owner shall have
delivered to and deposited with FIBT the Initial Security Funds representing or
evidencing the Pledged Collateral. The parties acknowledge and agree that FIBT shall
be required to segregate the Pledged Collateral from other funds held by FIBT for
Owner in accordance with the normal practices of FIBT as an Escrow Agent. FIBT shall
return all funds on deposit representing or evidencing the Pledged Collateral
remaining in its possession to Owner (or take such other action as Owner may request
or direct) immediately after receipt of written notice from the City that the Secured
Obligations have been fully performed. During such time as FIBT has possession of
the Pledged Collateral, FIBT shall furnish to the City (when requested by the City)
written acknowledgments signed by an officer of FIBT detailing the amount of the
Pledged Collateral.
SECTION 4. COVENANTS.
(a) Affirmative Covenants. So long as any of the Secured Obligations remain
unperformed, Owner covenants and agrees that Owner will:
(i) from time to time execute and deliver to the City all such
assignments, certificates, supplemental writings, and other items and do
all other acts or things as the City may reasonably request in order to
evidence and perfect the security interest of the City in the Pledged
Collateral;
(ii) furnish the City with information which the City may reasonably
request concerning the Pledged Collateral; and
Escrow/Pledge Agreement Page 2
(iii) notify the City of any claim, action, or proceeding affecting title to the
Pledged Collateral or the City's security interest therein.
(iv) adjust the Pledged Collateral to an amount equal to one hundred
percent of the Owner's share of the actual costs of constructing the
improvements identified in the CFA, as reflected in the last revision to
the contract for such improvements.
(b) Negative Covenants. So long as any of the Secured Obligations remain
unperformed, Owner covenants and agrees that Owner will not:
(i) assign or transfer any rights of Owner in the Pledged Collateral; or
(ii) create any Lien in the Pledged Collateral, or any part thereof, or
permit the same to be or become subject to any Lien except the security
interest herein created in favor of the City.
SECTION 5. EVENTS OF DEFAULT.
Owner shall be in default under this Agreement only upon the happening of
any of the following events (a "Default"):
(a) default in the timely payment or performance of the Secured Obligations
after written notice thereof has been given to Owner and FIBT and such default
is not cured within seven (7) days after such notice.
(b) any affirmative or negative covenant is breached by Owner;
SECTION 6. RIGHTS AND REMEDIES OF THE CITY UPON AND AFTER DEFAULT.
(a) Remedy. Upon the occurrence of a Default, the City shall have the right to
direct FIBT to transfer to the City all of the Pledged Collateral. The City shall
have the right to use so much of the Pledged Collateral as may be necessary to
complete the Secured Obligations. Once all the Secured Obligations are
performed, the City shall return to Owner all the Pledged Collateral that
remains in its possession. FIBT shall transfer the Pledged Collateral
immediately upon the receipt of a written statement purporting to be executed
by an authorized representative of the City stating that:
(i) a Default by Owner has occurred under the CFA, that written notice
was given to Owner and FIBT, and Owner has failed to cure the default
within seven (7) days; or
(ii) Owner has committed a breach of an affirmative or negative
covenant contained herein.
Escrow/Pledge Agreement Page 3
(b) Notices. Any notice required or permitted to be given to any party hereto
shall be given in writing, shall be personally delivered or mailed by prepaid
certified or registered mail to such party at the address set forth below, and shall
be effective when actually received.
Fort Worth & Western Railroad, Inc.
Attn: Edward M. McLaughlin
6300 Ridglea Place Suite 1200
Fort Worth, TX 76116
City of Fort Worth
Attn: City Treasurer
1000 Throckmorton Street
Fort Worth, TX 76102
with a copy to:
City of Fort Worth
Attn: Development Coordinator
Department of Development
1000 Throckmorton
Fort Worth, TX 76102
Richard Wiseman
Brown Herman Scott Dean & Miles
200 Fort Worth Club Building
306 West 7th Street
Fort Worth, Texas 76102-4988
First Interstate Bank of Texas, Dallas, Texas
Attention: Corporate Trust Department
P. O. Box 650291
Dallas, Texas 75202
Any party may change its address for notice by giving all other parties hereto
notice of such change in the manner set forth in this Section no later than 10
days before the effective date of such new address.
If the Owner fails to perform its obligations under the CFA, the City's sole
and exclusive remedy shall be to complete the obligations of Owner at Owner's
expense. In furtherance of such sole and exclusive remedy, the City is entitled
to exercise its rights as set forth in Section 6 hereof.
Escrow/Pledge Agreement Page 4
SECTION 7. SUBSTITUTION OF COLLATERAL.
Notwithstanding any contrary provision in this Agreement, Owner shall have
the right (without the consent of the City), at any time and from time to time, to obtain
releases of all or any part of the Pledge Collateral (hereinafter called the "Released
Collateral") upon satisfaction of the following conditions:
(a) Owner shall provide the City and FIBT written notice (the
"Substitution Notice") that Owner desires to obtain Released Collateral (as
specified and described in such notice) in exchange for a contemporaneous
substitution of a Payment and Performance Bond (as also specified and described
in the Substitution Notice); and
(b) Owner shall pledge to, or obtain for the benefit of the City, and deliver to the
City a Payment and Performance Bond from a surety acceptable to the the City
(the "Substituted Collateral") which Substituted Collateral shall in the aggregate
be at least equal to the Estimated Owner's Cost; and
(c) Said Payment and Performance Bonds shall be accompanied by a written
commitment from the surety that such Performance and Payment Bonds shall
cover all work which has occurred prior to the substitution of Collateral
provided for in this Section.
Upon satisfaction of the above-specified conditions, FIBT shall be authorized to return
to Owner the original Intended Security Funds in FIBT's possession that represent or
evidence the Released Collateral or take such other action with respect to the Released
Collateral as Owner may request or direct. Owner shall pay the fees and expenses
incurred by FIBT in connection with administering the escrow and obtaining each
such release and substitution.
SECTION 8. PERIODIC WITHDRAWAL OF COLLATERAL.
Notwithstanding any contrary provision in this Agreement, Owner shall have
the right to periodic withdrawals of the Pledged Collateral for the purpose of making
payments to any contractor employed by Owner to complete the Secured Obligations,
upon satisfaction of the following conditions:
(a) Owner, City and Owner's contractor have approved in writing a partial pay
estimate. Owner shall have the right to withdraw the amount of partial pay
estimate, less retainage, if any: and
(b) the balance of the Pledged Collateral after withdrawal of the Withdrawn
Collateral is at least equal to one hundred percent of the Owner's share of the
estimated value of the Secured Obligations then remaining to be performed
(such remaining value is hereinafter called the "Estimated Cost to Complete").
Escrow/Pledge Agreement Page 5
T ithdrawal Notice shall include a description of the Withdrawn teral and
Owner lculation of the Estimated Cost to Complete. U41ioir receipt of the
Withdrawal e, the City shall have seven (7) calendar s to notify Owner and ,
FIBT of the City's o on to Owner's Calculation of stimated Cost to Complete. X
The grounds for any objet are limited solely,-to a good faith determination by the .
the City that the balance of the P ed Co eral is insufficient to cover the Estimated X
Cost to Complete. If the City fails ly notify Owner and FIBT, the withdrawal
notice will be deemed to hav n accepte nd approved by the City and FIBT is
authorized to release th ithdrawn Collateral re ted by Owner without delay. In
the event a writte jection is timely filed with the ers and FIBT, then Owner
shall only allowed to withdraw ninety percent (90%) he amount originally
submit to be withdrawn, thereby leaving ten percent (10 o f the proposed
W* rawal in the Initial Security Funds.
If after the expiration of two (2) years from the date of this Agreement either
(i) none of the Secured Obligations have been performed; or
(ii) the term of the CFA has not been extended by the City,
then in either event, th it shall be entitled to receive the Pledged Collateral as
specified in Section and construct the improvements contemplated in the CFA. X
Upon completion of such improvements, the amount of the Pledged Collateral -L
remaining, if any, shall be returned by the City to the Owner.
SECTION 9. NON-ASSIGNABILITY OF THE CITY'S RIGHTS.
The rights, powers, and interest held by the City hereunder in and to the
Pledged Collateral may not be transferred or assigned by the City in whole or in part.
Any attempted transfer or assignment shall be absolutely void and shall entitle Owner
to a release of all Pledged Collateral.
SECTION 10. NO WAIVER.
No waiver by the City of any Default shall be deemed to be a waiver of any other
subsequent Default. No delay or omission by the City in exercising any right or power
hereunder shall impair any such right to power or be construed as a waiver thereof,
nor shall any single or partial exercise of any such right or power preclude other or
further exercise thereof.
SECTION 11. BINDING EFFECT.
This Agreement shall be binding on the parties, their successors and assigns.
No provision of this Agreement may be amended, waived, or modified except
pursuant to a written instrument executed by the City, FIBT and Owner.
Escrow/Pledge Agreement Page 6
SECTION 12. CHOICE OF LAW.
This Agreement is to be construed and interpreted in accordance with the laws
of the State of Texas.
SECTION 13. COUNTERPARTS.
This Agreement may be executed in any number of multiple counterparts and
by difference parties on separate counterparts, all of which when taken together shall
constitute one and the same agreement.
SECTION 14. FIBT INDEMNITY.
Owner hereby agrees to release, hold harmless, and indemnify FIBT (and its
directors, officers, employees, agents and representatives) from and against all claims,
damages, expenses, costs, suits and other liability of any kind whatsoever that arise out
of or are directly or indirectly related to the performance by FIBT of its duties
hereunder except for the gross negligence or willful misconduct of FIBT or its
directors, officers, employees, agents or representatives.
Fort Worth and Western Railroad,
A Texas Corporation
By:
Edward Mc Laughlin
Its: President
Date:
Escrow/Pledge Agreement Page 7
AUG 21 192 15: 02 FROM FITX N. A. CORP TRUST PAGE . 002
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Approved s to Form and CITY OF VYUKI TEXAS
Legality By.
By: a y Title: A tcity Manager
Title: 21ftM i A o Date: �2—S-- q i
Dat V 9S- as---9D.-
MST IN I'ERSTATE BANK OF TEXAS, N. A.,
/? DALLAS, TEXAS
as esa0 w agent
By: G5z ' --
Title: Corporate Trust Officer
Date; f
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Es=w/nedge Agnortent Page 8
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Approved as to Form and CITY OF FT WORTH, TEXAS
Legality: By:
By: Title: Assistant City Manager
Title: Deputy City Attorney Date:
Date:
FIRST INTERSTATE BANK OF TEXAS, N. A.,
DALLAS, TEXAS
as escrow agent
By:
Title: Corporate Trust Officer
Date:
OFFICIAL RECORD e
CM SECRET ARY "
Fr. woRnH, TEX.
Escrow/Pledge Agreement Page 8
AUTHORIZED REPRESENTATIVES
FOR
City of Fort Worth Transportation/Public Works Department
First Interstate Bank of Texas, N.A. , as Escrow Agent, is hereby
authorized to act upon written instructions from the following
individuals regarding disbursement of funds from Account
#480 0715 00.
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AUTHORIZED REPRESENTATIVES
FOR
Fort Worth & Western Railroad, Inc.
First Interstate Bank of Texas, N.A. , as Escrow Agent, is hereby
authorized to act upon written instructions from the following
individuals regarding investment of funds in Account #480 0715 00.
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DATE RE REN E NUMBER LOG NAME PA
08/11/92 **C-13498 12TARANT 1 of 1
__:SUBJECT RAILROAD GRADE CROSSING AGREEMENT WITH FORT WORTH AND WESTERN RAILROAD
TARANTULA FOR NORTHEAST 23RD STREET AND EXCHANGE AVENUE
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a license
agreement with Fort Worth and Western Railroad for railroad grade crossings at
Northeast 23rd Street and Exchange Avenue.
DISCUSSION:
In order to provide passenger and freight service to the Stockyards area, Fort Worth
and Western Railroad (Tarantula) has requested that the City enter into a license
agreement which will allow railroad grade crossings to be constructed, installed,
operated and maintained across Northeast 23rd Street and Exchange Avenue.
Tarantula has submitted the required plans and specifications for the two grade
crossings to the Transportation/Public Works Department (T/PW) . T/PW has approved the
plans subject to the execution by the Railroad of the license agreement, a community
facilities agreement covering the construction of these facilities, and coordination
with T/PW regarding construction details.
Construction, operation and maintenance will be at the sole expense of the Railroad.
Railroad has agreed to indemnify the City against liability and will provide liability
insurance in accordance with the license agreement.
FISCAL INFORMATION/CERTIFICATION:
Execution of this license agreement will not involve the expenditure of City funds.
WA:k
Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: to
Mike Groomer 6140
Originating Department Hea
Wade Adkins 7623 rom
For Additional Information
Contact:
Wade Adkins 7623
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