HomeMy WebLinkAboutContract 30949 e
CITY R CT NO.Y
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AMENDMENT NO. I TO
ECONOMIC AND COMMUNITY
DEVELOPMENT AGREEMENT
This AMENDMENT NO. 1 TO ECONOMIC AND COMMUNITY
DEVELOPMENT AGREEMENT ("Amendment") 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, and S07#1, L.P. ("Developer"), a Texas
limited partnership.
RECITALS
A. The City and Developer have entered into that certain Economic and
Community Development Agreement (the "Agreement"), dated on or about May 15,
2003, pursuant to which Developer has initiated the first phase of a real property
development generally known as "South of Seventh", defined in the Agreement as the
"Project". The first phase of the Project, defined in the Agreement as "Phase I" and
more specifically described in Exhibit `B" of the Agreement, includes, but is not limited
to, the construction of twelve (12)townhomes; site infrastructure for approximately forty-
seven(47) additional townhomes.
B. As part of the Project, Developer is constructing a road that will serve the
townhomes and townhome sites developed during Phase I of the Project (the "Initial
Spine Road"), as more specifically outlined in City Secretary Contract No. 2`12 3 0, a
Community Facilities Agreement between the City and Developer. The Initial Spine
Road will cross certain Fort Worth & Western Railroad tracks that bisect Developer's
Property (the "Railroad Property").
C. Pursuant to Section 4.1 of the Agreement,the City has agreed to reimburse
Developer a portion of the cost of construction of the Initial Spine Road equal to the
lesser of(i) ten percent (10%) of Developer's actual hard and soft costs incurred for or
directly related to the construction of Phase I of the Project or (ii) $940,000 (the "Phase I
Reimbursement"). The Phase I Reimbursement is not due until, among other things,
Developer has completed the Initial Spine Road and the City has accepted the Initial
Spine Road as a public right-of-way.
D. In order to facilitate construction of the Initial Spine Road and its crossing
over the Railroad Property, the City agreed to use its best efforts to acquire the Railroad
Property from its owner through the City's power of eminent domain. A Property
Acquisition Agreement between the City and Developer, attached to the Agreement as
Exhibit "D" (the "Property Acquisition Agreement"), more specifically outlines the
terms and conditions pursuant to which the City will exercise its power of eminent
domain in order to acquire the Railroad Property. The Railroad Property is more
specifically defined in the Property Acquisition Agreement.
Page 1
Amendment No. 1 to Economic and Community Development Agreement
between City of Fort Worth and S07#1,L.P.
E. Pursuant to Section 4.2 of the Agreement and Sections 4.1 and 4.2 of the
Property Acquisition Agreement attached thereto, the City agreed to pay (i) the first
$35,000 of the cumulative actual final purchase price of the Railroad Property and any
actual costs directly connected with the acquisition of the Railroad Property, excluding
attorney's fees in any eminent domain action by the City and any professional fees
incurred by attorneys handling such eminent domain action, and (ii) the first $50,000 in
fees charged by outside attorneys ("Counsel") handling any eminent domain action by
the City to acquire the Railroad Property. Pursuant to those same provisions, Developer
agreed to pay all other costs for and related to acquisition of the Railroad Property,
including professional fees and Counsel fees. Although the Property Acquisition
Agreement anticipated that both parties would deposit funds into an escrow account and
that such funds would be distributed through a third party escrow agent, the parties have
subsequently agreed to allow the City to serve in that capacity.
F. In reliance of Developer's commitments to pay the costs and fees for and
related to the acquisition of the Railroad Property, as outlined in Recital E, City paid the
first $50,000 in Counsel fees in an action styled Fort Worth & Western Railroad Co. v.
City of Fort Worth, 4:03CV0319Y. As of the execution date of this Amendment,
additional Counsel fees of approximately$127,635.72 for services rendered in this action
are outstanding.
G. Developer has requested that the City amend the Agreement to allow the
City to pay Counsel fees that are the obligation of Developer under the Agreement and
Property Acquisition Agreement if Developer does not pay such Counsel fees in
accordance with the Agreement and the Property Acquisition Agreement. The City is
willing to amend the Agreement to so provide solely in accordance with this Amendment.
NOW, THEREFORE, in consideration of the mutual benefits and promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged,the City and Developer agree as follows:
AGREEMENT
1. The City Council hereby finds, and the City and Developer hereby agree, that the
recitals set forth above are true and correct and form the basis upon which the City has
entered into this Amendment.
2. Section 4 of the Agreement (Phase I of the Project) is hereby amended by adding
the following Section 4.5:
Paget
Amendment No. I to Economic and Community Development Agreement
between City of Fort Worth and S07#1,L.P.
4.5. Deductions from Phase I Reimbursement for Costs Related to
Acquisition of Railroad Property.
Notwithstanding anything to the contrary herein, if Developer fails
to deposit Counsel Escrow Funds (as defined in Section 5 of the Property
Acquisition Agreement) in accordance with Section 5 of the Property
Acquisition Agreement in order for the City to pay any billings by
Counsel (as defined in Section 4.1 of the Property Acquisition
Agreement), including, but not limited to, billings related to that action
styled Fort Worth & Western Railroad v. City of Fort Worth,
4:03CV0319Y (5th Circuit Court of Appeals 04-10433), or to pay all sums
in excess of$35,000 for the cumulative actual final purchase price of the
Railroad Property and any actual costs directly related to the acquisition of
the Railroad Property and the eminent domain action authorized by this
Agreement (including, but not limited to fees, for professional services,
but specifically excluding fees for professional services directly associated
with any action being handled by Counsel pursuant to Section 4.1 of the
Property Acquisition Agreement, such as, by way of example only, fees
for expert witnesses, which fees shall be deemed fees for Counsel under
such Section 4.1), the City may, in its sole discretion and at any time upon
or after providing written notice to Developer, pay any such Counsel
billings or acquisition costs or expenses from any legally available funding
source of the City (all such payments collectively being "Property
Acquisition Advances"), in which case the amount of the Phase I
Reimbursement that the City is obligated to pay Developer shall be
reduced by an amount equal to the sum of all Property Acquisition
Advances.
3. Section 20 of the Agreement (Priority of Documents) is hereby amended to read
as follows:
In the event that any term or condition of this Agreement directly
conflicts with any term or condition of the Property Acquisition
Agreement or any CFA, this Agreement shall control unless specifically
stated otherwise in the Property Acquisition Agreement or CIA, as the
case may be; provided, however, that in the event there is any direct
conflict between a term or provision of the Property Acquisition
Agreement or CFA and Section 4.5 of this Agreement, Section 4.5 of this
Agreement shall control in all cases.
4. Section 5 of the Property Acquisition Agreement (Escrow Account) is
hereby amended (i) so that all references to"escrow agent" are replaced with"the
City"; (ii) so that any references to the escrow pledge agreement attached thereto
as Attachment 2 are deleted; (iii) to provide that Escrow Funds and Counsel
Escrow Funds shall be deposited with the City in a manner and pursuant to a
I
Page 3 7 F I t E C11`11 R
Amendment No. I to Economic and Community Development Agreement
between City of Fort Worth and S07#1,L.P.
V-EK'.
procedure reasonably acceptable to both the City and Developer (it further being
agreed that the procedure for such deposits that has been followed by the City and
Developer prior to the execution date of this Amendment is reasonable and
acceptable to both parties).
5. This Amendment contains the entire understanding and agreement
between the City and Developer as to the matters specifically contained herein.
All terms and conditions of the Agreement and the Property Acquisition
Agreement that are not directly amended by this Amendment shall remain in full
force and effect. Capitalized terms used,but not defined, in this Amendment shall
have the meanings assigned to them by the Agreement.
EXECUTED as of the last date indicated below:
CITY OF FORT WORTH: S07#I,L.P.,
a Te xas xasjm*ted er
s ip:
By: eneral partner
By: By: 2 /1
Dale Fisseler V f xame:
Acting Assistant City Manager Title:
Date:— Date:
APPROVED AS TO FORM AND LEGALITY: XTESTED BY
By:
Peter Vaky Marty-
Assistant City Attorney C 1)0,3e 7
M&C:- C-203S7 11-2-01y Contract Authorization
//771c . - 0�
Date
Page 4
Amendment No. I to Economic and Community Development Agreement
between City of Fort Worth and S07#1,L.P.
M&C Request Review Page I of 2
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Print II
COUNCIL ACTION: Approved on 1112/2004
DATE: 11/2/2004 REFERENCE NO.: C-20387 LOG NAME: 12507
CODE: C TYPE: NON-CONSENT PUBLIC HEARING: NO
SUBJECT: Authorize Execution of Amendment to Economic and Community Development Agreement with
S07#1, L.P. Regarding South of Seventh Development Project
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute an amendment to the
Economic and Community Development Agreement between the City and S07#1 regarding the South of
Seventh development project.
DISCUSSION:
Pursuant to an Economic and Community Development Agreement between S07#1, L.P. (Developer) and
the City, dated May 15, 2003 and authorized by M&C C-19453 on January 28, 2003 (the Agreement), the
City has agreed to expend certain City funds and certain grant funds for various public improvements
associated with the development project on property south of W. 7th Street and just west of Trinity Park (the
Property) generally known as South of Seventh (the Project). Phase I of the Project calls for the Developer to
construct, among other things, 12 townhomes, infrastructure for 60 total townhome lots, and a right-of-way
crossing over certain Fort Worth & Western Railroad tracks that bisect the Property (the Railroad Property).
In addition, as part of the Project, Developer is constructing a road (a portion of Museum Way) that will serve
the townhomes and townhome sites developed during Phase I of the Project (the Initial Spine
Road). Pursuant to a Community Facilities Agreement authorized by M&C C-19454 on January 28, 2003, the
City will reimburse Developer a portion of the cost of construction of the Initial Spine Road equal to the lesser
of (i) 10% of Developer's hard and soft costs for the Phase I improvements or (ii) $940,000 (the CFA
Reimbursement).
In order to facilitate construction of the Initial Spine Road and its crossing over the Railroad Property, the City
agreed to acquire the Railroad Property through its power of eminent domain. Under the Agreement, the City
agreed to pay the first$35,000 for the actual acquisition of the Railroad Property and the first$50,000 for any
outside counsel fees incurred in any legal action related to the acquisition of the Railroad Property, and
Developer agreed to pay all other costs and fees. A Property Acquistion Agreement attached to the
Agreement provided for Developer to deposit sums into an escrow account as they became due so that the
City would be able to honor its financial obligations in this effort.
The City has expended its $50,000 in outside counsel fees in a federal action styled Fort Worth & Western
Railroad v. City of Fort Worth (4:03CV0319Y) (5th Circuit Court of Appeals 04-10433). Currently,
$127,635.72 in outside counsel fees, which are the obligation of Developer, are outstanding and unpaid. So
that these fees and any subsequent outside counsel fees or acquisition costs or expenses may be paid in a
more timely fashion, it is recommended that the Agreement be amended to allow the City to pay any of
Developer's financial obligations that are related to the Railroad Property acquisition and to deduct any such
advances from the amount of the City's CFA Reimbursement to Developer once the Initial Spine Road is
http://www.cfwnet.org/council_packet/mc—review.asp?refnum=C-20387 11/24/2004
M&C Request Review Page 2 of 2
complete.
The property is in COUNCIL DISTRICT 9.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that funds are available in the current capital budget, as appropriated, of the
Critical Projects Fund.
TO Fund/Account/Centers FROM Fund/AccountICenters
0116 531200 020116136360 $ 7 635.72
Submitted for City Managees Office by: Richard Zavala (Acting) (8511)
Originating Department Head: David Yett(7623)
(7623)
David Ye
Additional Information Contact: tt
Peter Vaky (7601)
ATTACHMENTS
http://www.cfwnet.org/council_packet/mc—review.asp?refnum--C-20387 11/24/2004