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Contract 31772
CITY SECRETARY CONTRACT ECONOMIC AND COMMUNITY DEVELOPMENT AGREEMENT Thais ECONOMIC AND COMM UNITY DEVELOPMENT AGREEMENT r� + is, made and entered into by and between the CITY OF FOR WORTH ("City") a home rule municipal corporation organized under the laws of the State of Texas, and S�07 #1,L.P., a Texas limited partnership. RECITALS A. On January 22, 2002 the City Council adopted Ordinance No. 14936 pursuant to which It established the Economic and Community Development Department. As stated in that Ordinance, the purposes of the Economic and Community Development Department arc, among other things,, to i) oversee projects designed to increase investment In all areas of the City, with emphasis on the central city area and other established sections of the City of Fort Worth, in order to expand the City' economy, and tax base and 11 use incentives as allowed by law to encourage new investment and business expansion in target areas of'the City of Fort Worth as designated from time to time by the City Council. B,. The 2003 Comprehensives Pilan the "Comprehensive Plan defines a mixed-use growth center, as a relatively small urbanized area that contains a concentration of Jobs, housing units, schools, parks and other public facilities, public transportation hubs and pedestrian act vities,. Among the potential benefits of mixed-use growth centers cited by the Comprehensive Plan are economic development the development of multifamily housing at appropriate locations; the protection of single family neighborhoods; efficiency in the provision of public facilities and services; reduced reliance upon single-occupancy vehicles; and the protection of the environment. Accordingly, the Comprehensive Plan cites the promotion of mixed-use growth center development patterns as a ,foal that the City should embrace The Comprehensive Plan identifies the cultural district area of the City as a mixed-us,e growth cer te�r�. ce The Comprehensive Plan recommends various financial incentive programs, based on a model of custom-designed incentives and partnership programs with private businesses on a case-by-case basis, in order to stimulate development and redevelopment o land in growth centers. D. Developer, as defined In Section 2 hereof, is thee, owner or joint venture partner of the owner of approximately twenty-five 25 acres of land that is defined in this Agreement as the "Property" and that is depicted in the map and de cr%bed in the metes and bounds attached hereto as Exhibit "A". The Property is located between downtown Fort Worth and the cultural district and, once developed, could become a dynamic and vital link between those two areas or a vibrant portion of the cultural Page cone n-ft and Community Development Agreement between City of Fort Worth and S07#1,LP. X district. Developer wishes to construct and cause construction of a mixed-use development within the Property. E. Due to, the existence, of an active railroad track 'through the Property and because of various site conditions,, the Property has remained largely undeveloped despite its strategic location. Developer has requested that the City create an incentive package under which, Developer will receive certain assistanice from the City in order to make it feasible for Developer to overcome the obstacles that have discouraged development of the Property in the past and to create a public street for access to the Property. F. Because Developer's plans for development of the Property are consistent with the Comprehensive Plan's recommendations and goals for promoting the development of mixed-use growth centers and are consistent with the types of projects outlined in the Comprehensive Plan as deserving of assistance from and encouragement by the City, the City is willing, to assist Developer solely in accordance with this Agreement in return for the public,purposes that the City anticipates will occur as a result of Developer's development of the Property. 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. INCORPORTION OF RECITALS. 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 Agreement. 2. DEFINITIONS* ilill In addition to terms defined in the body of thus Agreement, the following terms shall have the definitions ascribed to them herein: CFA means a Community Facilities, Agreement executed by both the City and Developer for a specific phase or aspect of the Project and as provided by and in accordance with this Ageement. De ve means So 1, L.P., in joint venture with Airport Trinity, Inc., and any lawful assignee or su i ccessor n interest thereof that is causing the Property to be developed as outlined in this Agreement. Page 2 Economic and Community Development Agreement between City of Fort Worth and S07 0 1,L.P. Developer's Match means Developer"s contribution to the City equal to $805,410.00, which, subject to Developer's cash payment of the processing fee established and assessed by Tx 'T for its'review and assessment of the Project, shall at Developer's option be in cash or by land donation,to the City or a combination thereof, as required by and in accordance with the Grant Agreement and Funding Agreement and as approved in writing by TxDOT. Excess Grant Funds means any Grant Funds remaining after the it has reimbursed Developer for aspects of the Project other than Phase I pursuant to and in accordance with Sections 6.3 and 6.4 of this Agreement. Extended Spine Road means the road intended to be known, and generally referred to, as Cielo Creek Drive (air other approved name) between the Lancaster Avenue, bridge and Foch Street that Developer will construct in a phase subsequent to Phase 1, as more specifically provided in Section 6.3 and depicted in Exhibit "B"' of this Agreement. F'undin ansportatio�n, Project g Agreement means that, certain written Local Tr Advance Funding Agreement (LPAFA) to be executed by the City and the State of Texas acting through TxDOT, and any amendments thereto., governing,, among, other things, the specific manner in which the City may use federal transportation gcart funds allocated for the Project under the Program. The Funding Agreement is hereby incorporated by reference as part f`this Agreement for all purposes. Grant Agreement means that certain. Master Agreement Governing Local Transportation Project Advance Funding Agreement executed by the City and the State t% A of Texas acting through Tx T, executed as o,t August 28, 2000 pursuant to City Resolution N . 2652 and M&C C-18171, both dated August 1, 20,001, all of which is 'on file in the City Secretary's Office, and any amendments to such agreement, governing,, among other things, the general manner in which the City may use federal transportation grant funds allocated for the Project under the Program. The Grant Agreement is hereby incorporated by reference as part of this Agreement for all purposes., Grant Funds means those funds provided to the City pursuant to the Funding Agreement, as governed by the Grant Agreement. Grant Prere ing, requirements that Developer must first quisites means the follow* satisfy before the City will expend Grant Funds on any aspect of the Project: (i) completion of Phase I; and (ii) completion of any non-residential phase of the Project or completion of all Mixed-Use Development components of another phase of the Project (with completion being deemed to have occurred upon issuance of a final certificate of occupancy for all structures completed in any such phase), all of which shall be reasonably satisfactory to the City and sufficient under the Program, the Grant Agreement and the Funding, Agreement to support lawful expenditure of Grant Funds by the City toward improvements on or to the Property� and (111) receipt by the City of Developer's Match, as required by and in accordance with the Grant AgT'eement and the Page 3 Economic and Community Development Agreement between City of Fort Worth and S07#1,L.P. Funding Agreement; and (Iv) zoning of all the Property as W-2 (mixed use); and (v) no breach of this Agreement by Developer eting or continuing at the time the City enters into 0 xis into any CFA or written agreement governing, among other things, disbursement of such Grant,Funds. Initial ,Spine Road means the road to intended to be known, and generally referred to, as Museum Way and a portion of Cielo Creek Drive or other approved name)between West Seventh Street and, the Lancaster Avenue bridge that Developer will construct in Phase 1, as more specifically provided in Section 5 and as shown in Exhibit ",C"'of this Agreement. Mixed-Use DevelQpment means a mixing of residential and nonresidential uses vertically (residential and nonresidential land uses in one (1), building), horizontally (residential and on residential uses within the same block of the Project) or in an integrated manner (residential and non-residential land uses on separate bilocks, but within the Project, that are easily accessible to pedestri 3. PURPOSE AND OBJECTIVES. The purpose of this Agreement is to implement plement a project included as part of the Land Use/Transportation rtation Joint venture Program established by NCTCOG. The Program's ,foal is to encourage the development of land in a manner that mitigates growing traffic congestion to the NCTCO'G region, contributes to the improvement eft regional air quality, addresses long-term transportation funding constraints and supports transit oriented mixed-use development projects. Under the Program, federal. transportation grant rands are provided to local public sponsors, such as the City, through state transportation departments for qualified transportation-related aspects of approved privately-funded land development projects. On November 5, 2001 I" CTCOG notified the City that the Sod" Project had been selected for inclusion in the Program. A This Agreement addresses the specific manner er in which the City will expend its own funds as well as the Grant Funds with respect to the Project. Generally, Developer intends to complete the Project in phases, as outlined in Exhibit "B". Subject to Section of this Agreement, which covers phase 1 of the Project, the City will expend only Grant Funds under this Agreement. Unless otherwise specifically provided by this Agreement, the City will not expend any Grant Funds for any aspect of the Project unless i :developer has satisfied the Grant prerequisites and (ii) the City and Developer have executed a CFA or other written agreement governing, among other things, the disbursement of Grant Funds with respect to such aspect of the,Project. PHASE I OF THE PROJECT. w ! :phase f generally calls for the construction of the Initial Spine Road, twelve (12), townhom es; site infrastructure for an additional forty-seven 7 to vnornes the construction of a marketing,, center, the creation of a detention pond-, and the construction of a sanitary serer lift station, as outlined in Exhibit "B"' ("Phase 1"). The City's participation in Phase f will be solely as follows-, 4.1. Martial Reimbursement for Cost of Initial S e : cad,. Developer will construct the Initial Spine Road in accordance with a CFA. to be executed between the City and developer, wh.ieh. CFA mill., upon its execution, become a part of this Agreement ent for all purposes. Upon acceptance by the Cite of the Initial Spine Road as a public right-olf=moray as evidenced by a written statement signed by both the City and Developer's general contractor that the final punch list related to that project has been completed), and provided that TxDOlT has approved in writing the appraised value of the land comprising the Initial. Spine Road, as provided by and in accordance with Section 5 of. this Agreement, and that such amount may be applied toward and deducted from Developer's Match, the City will reimburse Developer a portion of the cost of construction of the Initial Spine Read equal to, the lesser of i ten percent (10%) Page 5 Economic and Community Development Agreement between City of Fort Worth and S07'# �L.P. of Developer's actual hard and soft costs, incurred for or directly related to the construction of Phase I or (ii) $940,000 (the "Phase I Reimbursement"). Notwithstanding the foregoing, since Developer does not intend to let its contract for the construction of the Initial Spine Road in accordance with the competitive bid requirements of Section 252.0121 of the Texas Local Govenunent Code, Developer understands and agrees that if the amount of the Phase I Reimbursement exceeds thirty percent (30%,) of the actual cost of construction of the Initial Spine Road, then any portion of the Phase I Reimbursement in excess of thirty percent (30%) of the cost of construction of the Initial Spine Road shall be allocated as a reimbursement to Developer for up to thirty percent (30%) of Developer's actual hard and soft costs incurred for or directly related to the construction of other public work as that to is generally used in Chapter 2253 of the Texas Goverm-nent, Code) installed as part of Phase I and/or up to, one hundred percent (100%) of the cost of professional design and engineering services f6r such public work., The Phase I Reimbursement shall be payable to Developer from currently available City revenues. As of the execution date of this,Agreement, the City has appropriated $9401,0100, for such purpose. 4*2* Acquisition of Railroad Pro peLty. The Initial Spine Road, as currently designed, will cross the Fort Worth & Western Railroad tracks, as more specifically depicted in Exhibit "B". As a result, the Railroad Property will need to be acquired in order for the Initial Spine Road to be completed. Developer hereby represents, to the City that prior to the execution. of this Agreement, Developer has made good faith efforts, through reasonable negotiations to acquire the Railroad Property from its owner at a fair market price and that Developer has been unsuccessful in consummating that acquisition. Therefore, following execution by both the City and Developer of the Property Acquisition Agreement., the City will use its best efforts to acquire re the Railroad Property through the City's, power of eminent domain and in accordance Frith 'the Property Acquisition Agreement. As, more specifically set forth in the Property Acquisition Agreement, the City shall pay, from currently available City revenues, (i) the first $35,0100.00 of the costs for the acquisition of the Railroad Property and any related costs and expenses, including but not limited to, professional fees (but excluding any attorneys' fees) and (11") if the City retains outside counsel to represent the City in any eminent domain action initiated by the City for the acquisition of the Railroad Property, the first $50,000-00 of any fees charged by such outside counsel. As of the execution date of this Agreement,, the City has appropriated $35,000.00 and $50,000.00, respectively, for such purposes. As more specifically set forth in the Property Acquisition Agreement, Developer shall pay all other costs for the acquisition of the Railroad Property and all related costs: and expenses, including, but not lim-ited to, professional fees and outside counsel, fees in excess of$50,000-00. /17`1 21? Page 6 L Economic and Community Development Agreement bletwee�n City of Fort Worth and SOM,L.P. 439, Traffic Impact Anal The City, at the City's sole cost and expense, will conduct a traffic impact analysis ("Study"), consistent with acceptable transportation planning and engineering practices and including input from Property owners in the vicinity of the Study area (White Settlement Road on the north, Montgomery Street on the west, the Trinity River on the east, and Interstate 30 on the south) with respect to: -the, modeling of the Study and the assumptions that will define the scope of the Study.) to determine if the existing and projected land uses and existing and projected traffic volume within that Study area, which includes the Project, will cause a need for construction of an arterial road between West Seventh Street and University Drive at Harley Street, generally referred to as Trinity Parkway and depicted in the 1990 and 2002 Master Thoroughfare Plan ("MT "). The 0107 .Y will use its reasonable best efforts to complete the Study within ninety (90) days. If the Study indicates that there will not be a need for construction of such an arterial road, the City will within thirty (30) calendar days following completion of the Study initiate an amendment to the MTP to remove the arterial road from the MTP. If the Study indicates that there will be a need for construction of such an arterial road, the City will within -thirty (30) calendar days following completion of the Study initiate an alignment study that will evaluate alternative alignments and classifications for the arterial road. These studies will 'include public participation with appropriate stakeholders and will be presented to the City Council before the City Council takes action herein. 4.4. Waiver of Fees. In return for the public purposes accomplished hereunder, as, provided in the Recitals of this Agreement and in accordance with this Section 4.4, the City will waive assessment to Developer, and Developer's officers, agents, employees or contractors, of' the following City fees for Phase I: (i) plans review anal inspection fees; (11) fees for plat application, including concept plan, preliminary 11 p plat, final plat and short form replat; (iii) Board of Adjustment application fees, (iv) demolition permit fees; (v) structure moving fees; (vies zoning application fees; i(vii) street and utility easement vacation application fees; and (viii) CFA application fees. It is specifically understood and agreed that (ids the City will not waive any emergency inspection fees, impact fees or tap fees, and ('11) the City cannot waive the assessment of, and will not reimburse Developer, or Developer's officers, agents, employees or contractors for, any such fees assessed by third parties, such as third party inspection fees. In the event that some or all of the Property is included in a Neighborhood Empowen-nent Zone ('INEZ") after the Effective Date, Developer will also be entitled to a waiver of any City fees, with respect to construction on the portion of the Property included in the NZ that are subject to waiver pursuant to the then current City Council-adopted NEZ policy and that are not enumerated above. Page 7 Economic and Community Development Agreement between City of Fort Worth and S07#1,L.P. 5, DEVELOPER"S MATCH. Prior to execution of' the Funding Agreement (LPAFA) by the City, Developer will pay the City the processing fee established and assessed by Tx DOT for its review and assessment of the Project. This processing fee will be included as part of the Developer's Match if allowed by Tx T. Within thirty (30) calendar days following execution of the Funding Agreement by both the City and T'xDOT, Developer shall provide the City with the cash portion, if any, of Developer's Match. If Developer wishes all or any portion of Developer"s Match to consist of a donation of land to the City, the amount of land actually donated shall be determined on the basis of a an appraisal of the then-current fair market, value of such land, which value must be approved in writing,by TxDOT in accordance with the procedure set forth herein, subject to any additional steps required by TxDOT. Developer, at Developer's sole cost and expense, shall promptly cause the land being donated to the City to be surveyed by a surveyor reasonably acceptable to the City. Following execution of the Funding Agreement by both the City and Tx Off", Developer, at Developer's sole cost and expense, shall cause an appraiser that is reasonably acceptable to, the City and that is certified for use by Tx DOT for such purpose to complete such an appraisal and to provide a written copy of that appraisal to the City and to a second, TxDOT-certified appraiser selected by the City, in the City's sole discretion, who shall review the appraisal and provide written comment. The ap 'pral sal by the first appraiser anal the review and , praiser a comment of such appraisal, by the second appraisal will be submitted to TxDOT1 for TxDOT's review and conu-nent. The portion of the Developer's Match consisting of a donation of land shall be considered received by the City once T'xDOT has approved in writing a final appraisal of such land and the City has fee simple title to such land, which land may be dedicated upon the recording of the final plat. The Developer's Match may be made in stages to the extent specifically provided for in this Agreement. 6. FUTURE PHAS�ES OF THE PROJECT, 6.1. City's Participation LIMited to Available Grant Funds. As stated in Section 3, within the scope of this Agreement the City's will expend only Grant Funds in phases f''the Project other than Phase 1. The City anticipates that it will receive Grant Funds in the amount of $3,221,639.00. Regardless of the total amount of Grant Funds actually received, Developer understands and agrees that the following, expenditures from the aggregate Grant Funds received are reserved by the City and fall outside the scope of this Agreement: (i) $1,078,243.00, which the City anticipates will be used ior construction by the City of a pedestrian bridge over the Trinity River; (ii) $220,931.00, which the City anticipates will be used for construction or installation of infrastructure in the vicinity of the area of the City authorized by the Funding, Agreement, but not within the Property; (Ili) -the amount of the Phase I Reimbursement and (iv) any remaining Grant Funds if the amount of'the Phase I Page 8 Economic and Community Development Agreement between,City of Fort Worth and S07#1,L.P. 'Reimbursement is less than $940,000, all of which the City, may use for any purpIos,e(s) permitted by the Funding Agreement. In other words, of the total amount of Grant Funds actually received, the City is reserving, at least $2,239,174.00 for projects other than Developer's Project (the "Rese' rved Grant Funds"). Developer understands and agrees that the anticipated uses of the Reserved Grant Funds are subject to change with TxDOT's approval, that Developer has no rights as of any kind or nature to the Reserved Grant Funds and that the City is not obligated to use the Reserved Grant Funds for Developer's benefit or for any benefit of the Project unless specifically required by the Funding Agreement. The difference between the total amount of Grant Funds received and the Reserved Grant Funds, up to $982,465.001 plus fifty percent (50%) of any Excess Grant Funds (as further provided in Section 6.4, of this Agreement), may be used by the City for the benefit of the Project in accordance with Sections + .2, 6.3 and 6.4 of this Agreement. 6.2. Process for Obtainin2 Ci!y Partici ation. Provided that Developer has satisfied the Grant Prerequisites, Developer may notify the City in writing that Developer wishes to enter into a CFA for future ph es under the scope of this Agreement that addresses the construction of the additional infrastructure within the Project identified in Sections, 6.3 and 6.4 of this Agreement. Upon receipt of' Developer's written request, the City and Developer will proceed to negotiate in good faith a CFA that, depending on the nature of the construction project in question, incorporates the terms, and conditions set forth in Sections 6.3 and 6.4, as more specifically developed by the City and Developer at the time. The Grant Agreement and Funding Agreement shall be incorporated as part of any such CFA. The CFA shall also specify any obligations of the City under the Grant Agreement and/or Funding Agreement that are being passed to Developer and shall 'Include adequate protection for the City in the event that Developer defaults, with respect to those obligations. In addition, notwithstanding anything in this Agreement that may be interpreted to the contrary, in order to be effective, any such CFA will be subject to approval by the City Council at the time and appropriation by the City Council of Grant Funds or sufficient funds in the then-current operating budget of the City 'in an amount sufficient to satisfy any financial obligations of the City under the CF'A and which are to be, fully reimbursed upon actual receipt of such Grant Funds. 6.3. Partial Reimbursement for Cost of Extended Spine Road. Developer will not be entitled to receive any reimbursement by the City for the cost of construction of the Extended Spine Road except as may be set forth in a OF A covering a future phase of the Project that is subsequently negotiated and executed by both the City and Developer in accordance with and subject to Section 6.2 of this Agreement. Any such CFA shall incorporate the terms and conditions, of this Section 6.3. Upon acceptance by the City of the Extended Spine Road as a public right-of-way (as evidenced by a written staterne 1 1 LJLO� Page 91 Economic and Community Development Agreement 7-�, between City of Fort Worth and S07#1,L.P. Flo All by both the City and Developerl's general contractor that the final plunch list related to that project has been completed), the City will reimburse Developer under the CAA a portion of the cost of construction of the Extended Spline Road equal to the lesser of(1) thirty percent (30%) of Developer"s 'ac,tual hard and soft "V--% costs incurred for or directly related to the construction of the hxtended Spine Road or (1*0 $536,535.00: (the "Extended Spine Road Reimbursement"). However, if the amount of the Extended Spine Road Reimbursement is less than $5'36,53S.00, the amount of Grant Funds equal to the difference between $1536,535.00 and the amount of the Extended Spine Road Reimbursement shall constitute Excess, Grant Funds and will be used in accordance with Section 6.4 of this Agreement. 6.4. Excess Grant Funds. If there are any Excess Grant Funds, fifty percent (50%) of such Excess Grant Funds will be budgeted and treated as Reserved Grant Funds of -the City and earmarked for use by the City for construction or installation of infrastructure in the vicinity of the area of the City authorized by the Funding Agreement, but not within the Property. The other fifty percent (50%) of such Excess Grant Funds may be used by the City for the benefit of the Project in accordance with the process outlined in Section 6.2 of this Agreement. 6.5. No Waiver of Fees Under this A2re'ement for Future Phases. The City will not waive, pursuant to this Agreement, assessment to Developer, and Developer's officers, agents, employees or contractors, assessment of any City fees for phases of the Project other than for Phase 1, as previously outlined in Section 4.4 of this Agreement. However, certain fee waivers for future phases of the Project may be available to Developer outside the scope of this Agreement, .such as by operation of the City's Neighborhood Empowerment Zone policy, if applicable. 6,6. CFAs Outside the Sco pe of this, Aj!reement. Notwithstanding anything that may be interpreted to the contrary in this Agreement, this Agreement does not prohibit the City and Developer from ift, su FA bsequently entering into mutually-negotiated Cs that involve City runding from sources other than the Grant Funds, with the understanding that this sentence does not confer any obligation of the City to enter,into any such CFA. 7, TERM. A Unless this Agreement is tenninated earlier in accordance with the provisions anu conditions of this Agreement, the term of this Agreement ("Term") will commence upon the date of its execution by both the City and Developer (the "Effective Date" Page 10 Economic and Community Development Agreement between City of Fort Worth and S07#I,L.P. notwithstanding anything to the, contrary herein, will expire on the later of(i) the third anniversary of the effective date of the Funding Agreement or (11), the expiration of any CFA that was effective prior to the third anniversary of the Effective Date. 8. IRECORDS AND AUDITS, Developer, and not another entity, whether or not affiliated with Developer, will be the party to all contracts related to work on the Project and will maintain all books and records related to the Project at a location in the City (collectively Records,") throughout the Tenn and for one (1), year thereafter, which obligation shall survive the expiration or termination of'this Agreement. Developer agrees, that the City will have the right to audit the financial and business, records of Developer in order to determine complli"ance with this Agreement or any CFA. Following reasonable advance notice by the City, but in no event less than five (5) business days, Developer shall make all Records available to the City on the Property or at another location in the City acceptable I to both parties and shall otherwise cooperate fully with the City during any audit. 9.1 REFAULT, "MEDIES AND TERMINATION [UGHTS,. 9.1. Terml*nafion or Ex * '0 it! Agnt ,piration of Fund*n re em e , If the Fund*n n I g Agreement expires or is tenninated for any reason p *,or to the expiration of this Agreement, the City may, terminate this, Agreement immediately by providing written notice to Developer-, provided, however, that since the City's participation in Phase I is not subject to receipt of Grant Funds, the rights, duties and obligations of both the City and Developer under Section 4 of this Agreement shall survive any such termination. 9.2. Termination of Property Acguisition Agreement or CFA., If the City terminates the Property Acquisition Agreement or any CFA entered into pursuant to Section 4.1, 6.2 or 6.3, this Agreement will simultaneously terminate without additional notice or further obligation of the City to Developer 9.3. Breach or Default. An event of default under this Agreement shall occur if either party ,1 breaches any of its duties or obligatio ns hereunder. In this event, promptiy after becoming aware of the default, the non-defaulting party, shall provide wn'tten notice by certified mail to the other party that describes, the nature of the default. The defaulting party shall have thirty (30) calendar days to cure the default, or if III such default is not reasonably bly curable within thirty (30) calendar days, such additional time as may be reasonably necessary provided that the defaultin art Page I I Economic and Community Development Agreemcnt nm IT/Z between City of Fort Worth and SO M,L.P. N FYI, TE's OMMOMNOW i diligently pursuing cure of the default. If the default has not en fully cure within such time, the non defaulting party shall have all n*ghts available under the law or .n equity, including, but not limited to, the fight terminate this Agreement, which may be effected by providing written notice thereof to the defaulting party. 100 INDEPENDENT CONTRACTOR. Nothing contained in this Agreement or any collateral agreements,ts, between the pity and Developer with respect to the Project is intended by the parties to create a partnership or joint venture between the parties, and any implication to the contrary is hereby expressly disavowed. It is understood and agreed that this Agreement does not create a joint enterprise, nor does it appoint any party as an agent t of any other party, for any purpose whatsoever. III INDEMNIFICATION',. DEVELOPER G S TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS SERVANTS AN EMPLOYEES., HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES ANY KINDI INCLUDING, BUT NO,T LIMITED T TO THOSE FOR PR '`ER T Y DA MA GE OR LOSS (INCLUDING ALL G DA MA GIB OR LOSS TO DEVELOPER'S'S B USINESS AND ANY RESULTING LOST PROFITS) A D OR PERSONAL INJURY, INCLUDING DEATH., THAT MAY RELATE TO, ARISE 0 UT OF OR BE 0 CCA STONED BY i VEL OPER S BREA CH OF A NY OF THE TERMS S OR PRO VISIONS OF THIS A GREEMENT OR (ii) ANY E GL, �"',�"�T A CT OR OMISSION OF DEVELOPER., ITS OFFICERS., AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONIRACTORS, RELATED TO THE PROJECT OR THE PE F R AN E OF THIS A EMEN '; EXCEPT THAT THE INDEMNITY PROVIDED! FOR IN THIS PARAGRAPH SHALL NOTAPPLY TO ANY LIABILITY RESULTING FROM THE BODE LICE C OF THE CITY OR ITS RESPECTIVE OFFICERS, AGENTS, EMPLOYEES "R SEPARATE CO T ✓TORS, AND THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH DEVELOPER AND CITY, RESPONSIBILITY, IF ,ANY, SHALL BE APPORTIONED COMP.. BRA T IEL Y IN A CC CE WITH THE LA WS OF THE S A TE OF TEXAS. 12, NOTICES0 All written notices called for or require, by this Agreement shall be addressed to the following, or such other party or address as either pay designates in writing, by eertitie mail,postage prepaid, or by hand deliver:: Page 12 Economic and Co unity Development Agreement between City of Fort Worth and S07 1,L.P. C*q Developer, Attn: Director Attn: Ken.Hughes Economic and Community Development UC Urban Department 7001 Preston Road, Suite 500 1000'fbrockmorton Dallas, TX 752015 Fort Worth, T'X 76102 with a copy to.a with a copy to: Attn,*- City,Attorney Attn: Susan Mead City Attorney's Office Jackson Walker 1000 Throckmorton 901 Main Street, Suite 6 For Worth, TX '761012 Dallas, TX 75202 13, ASSIGNMENT AND SUCCESSORS;. Developer may not assign, transfer or otherwise convey any of its rights or obligations under this Agreement to any non-Affiliate party without the prior wn*tten consent of the City, which consent shall not be unreasonably withheld or delayed, conditioned on (i) the prior approval of the assignee or successor an c I i a, finding by the City Manager that the proposed assignee or successor is financially capable of completing the, Project and (ii) the proposed assignee or successor has executed a written agreement with the City under which it agrees to assume all covenants and obligations of Developer under this Agreement. For purposes of this Agreement, an "Affiliate" of Developer, shall mean (I) any entity in which a majority of the ownership consists of individuals, partnerships, trusts (or their individual, partners or beneficiaries) or, other entities included, whether by legal title or benefic ially, in the present ownership of Developer or (ii) any entity which has at least a fift y-one percent (51%) ownership interest in Developer or any entity in which Developer has at 'least a fifty-one percent 51%) ownership interest. 14., COMPLIANCE WITH LAWS, RDIN'ANCES, RUIES AND REGULATIONSO This 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. Page 13 Economic and Community Development Agreement between City of Fort Worth and S07#1,L.P. w 15. GOVERNMENTAL POWERS, It is understood that by execution of this Agreement,eement the City des not waive or surrender any of it governmental powers. NO WAIVER.. The failure of either party to insist upon the performance of any term or provision. of this Agreement r to exercise any right granted hereunder shall not constitute a waiver of that party's right to insist upon a r ruts performance r t assert are such uch t n. y future occasion.. 17. 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 n Tarrant 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 bows of the State of Texas 18. NO THIRD PARTY RIGHTS, The provisions and conditions of this Agreement are solely for the benefit of the City and Developer, and any lawful assignee or successor of Developer (as evidenced by compliance with the terns and conditions of Section 13 of this Agreement), and are not intended to create any rights, contractual or otherwise, to any other persona or entity. L9 FORCE MAJEURE. It is expressly understood and .greed by the parties, to this Agreement that if.the performance, of any obligations hereunder is delayed by reason of war, civil commotion, Duets of God, inclement weather, governmCD,tal restrictions, regulations, or interferences, unreasonable delays by the City in issuing any permits or certificates of occupancy or conducting any inspections or with respect to the Project based on the amount of time that the City customanily requires in undertaking such activities and based on the then current workload of the City de a.rtrnent s responsible, for undertaking such a.et'v*ties , or delays caused by unforeseen construction or site issues, fire or other casualty, court injunction, necessary condemnation roeeedirrgs, acts of th+e other .rty, its affiliates/related entities and,/or their contractors, or any actions or inactions of third parties or other circumstances which are reasonably beyond the control l of the party obligated or permitted under the terms of this Agreement.ent to do or perform the same, Page Economic and Community Development Agreement between City of Fort Worth and 5017# ,L.Pi. regardless of whether any such circumstance is slrr. lar to any of those enumerated or no the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, se that the time period applicable try such design or construction requirement shall be extended for a ►eriod of time equal tai the period such party was delayed. 20, PRIORITY Off"DOCUMENTS. In the event that any term, or condition of this Agreement directly conflicts with any ter or condition of the Property Acquisition Agreement or an FA this Agreement shall control unless specifically stated otherwise ire the Property Acquisition Agreement or CFA, as the case may he. 21. 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. 22 CAPTIONS* Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 23. ENTIRE,TY 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. 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 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. 4. '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. Page Economic and Community Development Agreement between City of Fort Werth and S07#I I L.P. EXECUTED as of the last date indicated below-, CITY OF FORT WORTH., S 7 #1 L.P. a Tex i ited ership,, )kftn By: "ener�al partner �10 By. w By: / I W,W, Reid. Rector Name.- Assistant City Manager Title,: Date-, Date-. APPROVED AS TO FORM AND LEGALITY.- By: Peter Vaky Assistant City Attorney M&C.. C-19453 O'2-03 Attested By* f N Nlarty Hendru'x t� C*t'V secretary I .' , Page 16 Economic and Community Development Ageement between City of Fob Worth and S07#1, L-111. EXHIBITS A Description of Project Property "B9'—Outline of Overall Project by Phase IT"— Depiction of Initial Spine Road that will be constructed pursuant to the Community Facilities Agreement for Phase I I'D"—Property Acquisition Agreement o Including Escrow Pledge Agreement Related to Property Acquisition Costs du 1-6 TJ 13lli c:0, Page 17 Economic and Community Development Aueernent between City of Fort Worth and S07#I L.P. it E�`r"11 B I T A LEGAL DESCRIPTION 132-39 ACRES, Being a tract of land situated in the J.M.C. Lynch Survey,Abstract No. 955,Tarrant County,Texas and being part of the land described in the deed to Trinity Park Center II Joint Venture,recorded in Volume 8621,Page 21 5,Deed Records, Tarrant County,Texas, and being all of the land described in the deed to Trinity Park Center II Joint Venture,recorded in Volume 8911,Page 6911, Deed Records,Tarrant County, Texas and being more particularly described by metes and bounds as follows: BEGINNING at a 1/2" iron rod,found at the northeast comer,of a 2.496 acre tract of land described in said deed to Trinity Park Center 11 Joint Venture,recorded in Volume 8621,Page 2185, Deed Records,Tarrant County,Texas,being in the west right-of-way line of the St. Louis,San Francisco and Texas Railway Company Line, and being South 89' '09" West, 107.75 feet and S 2,2'04'58"W,449.80 feet from,the northwest corner of a 11.859 acre tract described in said deed to Tririity Park Center II Joint Venture, recorded in Volume 862 1,Page 2185,Deed Records,Tarrant County,Texas, a galvanized spike found in the south right-of-way line of West Seventh Street(a 100' right-of-wa Y)- THENCE S 22"014'58"W, along the east line of said 2,.496 acre tract and the west right-of-way line of said St. Louis, San Francisco and Texas Railway Company Line, a distance of 845.92 feet to a point at the beginning,of a curve to the left having a central angle of 09'07'43'",a radius, of 1711.70 feet and a,chord bearing and distance of South 173 P06" West, 272.42 feet, from which a I/z" iron rod found bears S 84055'23"El .26 feet; THENCE in a southwesterly direction, along the east line of said 2.496 acre tract and the west right-of-way line of said St. Louis, San Francisco and Texas Railway Company Line, and along said curve to the left, an arc length of'272.71 feet to a bent V.2"iron rod found at the northeast comer of a 1.24 acre tract of land described in said deed to Trinity Park Center,11 Joint Venture, recorded in Volume 8 621,Page 2185,Deed Records,'Tarrant County,Texas;, THENCE continuing along the east line of said 1.24 acre tract and the west right-of-way line of said St. Louis,, San Francisco and Texas Railway Company Line,the following courses and distances: S 12058'43"W)4.65 feet; S 11035'43"W, 51.53 feet; S 09054)43"W),51.64 feet; S 07050'43"W) 52.22 feet; S 04049'43"Wi 52.44 feet; S 02015'43"W) 52.11 feet; S 00000'17"'E, 51.41 feet to the southeast comer of said 1.24 acre tract of land described in said deed to Trinity Park Center II Joint Venture,from which a 3/4"slick iron found bears N 08'34'08"E, a distance of 0,51 feet; THENCE North 89'55'32" West, along the south line of said 1.24 acre tract,passing at a distance of 224.52 feet a 5/8""iron rod found for the southeast comer of a 17,348 square feet tract described • said deed to Trinity Park Center II Joint Venture, recorded in Volume 8,911,Page 69 1,Deed Records,Tarrant County, Texas and the and the northwest comer of a tract of land described in the deed to Goldthwaite's of Texas, recorded in Volume 7827,Page 1092,Deed Records,Tarrant County,Texas and continuing for a total distance of 278.76 feet to a 5/8" iron rod with yellow cap marked"Dunaway Assoc. Inc" set-,,(hereinafter called 5/8"iron rod set)for the southwest corner of said 17,348 square.feet tract, same being in the east line o:f'a 3.002 acre tract described in said deed to Trinity Park Center 11 Joint Venture, recorded in Volume 8,62,1,Page 2185,Deed Records,Tarrant County,,Texas; 01 THENCE South 23'10'50," West, along the east line of said 3.002 acre tract, a distance of 17.71 feet to a 5/8"irion rod with yellow cap marked"TN'P"found for the southeast comer of said 3.002 acre tract,, THENCE North 89'58'10" West, along the south line of said 3.002 acre,tract, a distance of 274.93 feet to a 5/8"iron rod with yellow cap marked"T NP"found in the east line of Foch Street(a 50'right-of-way)- THENCE North 00'0�1'50"East, along the west line of said 3.002 acre tract and the east right-of-way line of Fo,ch Street, a distance of 3158.30 feet to a 5/8"' iron rod found in the south right-of-way line of Lancaster Street(a variable width right-oif-way) at the begging of a curve to the right having a,central angle of 01012'38",a radius of 11,3 X0.00 feet and a chord bearing and distance of South 875 1'23"East, 240.02 feet; THENCE in a southeasterly direction, along the south right-of-way line of said Lancaster Street and the north line of said 3.002 acre tract, and along said curve to the right, an arc length of 240.0:2 feet to a V7," iron rod found; THENCE South 86'48'11" East, along the south right-of-way line of said Lancaster Street and the north line of said 3.0102 acre tract, a,distance of 1801,50 feet to a point for the northeast comer of said 3.002 acre tract and the northwest comer of said 17,348 square feet tract, from which a 5/8"iron rod found bears North 22'23'35"W, a distance of 0.32 feet; THENCE South 8 6'08'43," East, along the south right-of-way line of said Lancaster Street and the north line of said 17,,348 square feet tract, a distance of 45.83 feet to a bent Yz"iron rod found for the northeast comer of said 17,,348 square feet tract, same being in the west line of said 2.49,61 acre tract; THENCE North 2,2005'20" East, leaving the south right-of-way line of said Lancaster Street and along the west line of s aid 2.496 acre tract, a,distance of 15 9.11 feet to a 5/8"iron rod set for the sou east c omer of a 29,0185 square feet tract described in said deed to Trinity Park Center II Joint Venture, recorded in Volume 8911, Page o91, Deed Records,Tarrant County,Texas; THENCE No 8 18 0 5 2'12 1"West, along the is:outh line of said 29,o 8 5 square feet tract and then the south line of a 5.652 acre tract described in said deed to Trinity Park Center II Joint Venture, recorded in Volume 8621,Page 218,5,Deed Records,Tarrant County,Texas, and along the no right-of-way line of said Lancaster Street, a distance of 274.97 feet to a 7/8"iron rod found; THENCE,Not 01'0739"East, along the north right-of-way line of said Lancaster Street and along the south line of said 5.652 acre tract, a,distance of 40.00 feet to a 1/2"'iron rod found in asphalt; THENCE North 87'5853" West, along the north right-of-way line of, aid Lancaster Street and along the south line of said 5.652 acre tract,,a distance of 251.83 feet to a V2'1 iron rod found in the east line of said Foch Street; THENCE North 00'00�'2 1"West, leaving the north right-of-way line of said Lancaster Street and along the east right-of-way line of said Foch Street, and along the west line of said 5.652 acre tract, a distance,of 75.010 feet to a V?." iron rod found for the southwest comer of Lot 3, Block I, Justin Addition, an addition to the City of Fort Worth,Texas according to the plat recorded in Cabinet B,, Slide 427,Plat Records,Tarrant County,Texas; THENCE No 8,9"5739" East) leaving the east right-of-way line of said Foch Street and along a north line of said 5.652 acre tract and along the south line of said Lot 3, a distance of 286.44 feet to a 5/8,"iron rod with red cap marked"Curtis"found for the southeast comer of said Lot 3; 4 THENCE North 00000'21"' West, along the west line of said 5.652 acre tract, and along the east line of said Lot 3, a distance of 540,,02 -feet to bois d'arc stake found in the south line of a tract of land described in the It" deed to O.P.Leonard, Jr. and Nancy A. Leonard,recorded in Vo lume 9346,Page 1166,Deed Records, Tarrant County,Texas, I I THENCE North 89059391" East, along the south line of said Leonard tract, and then along the south line of Lot 1,Block 1, Seventh Street Station, an addition to the City of Fort Worth, according to the plat recorded, in Cabinet A, Slide 4296,Plat Records,Tarrant County,Texas,passing at a distance of 468.17 feet a V2" iron rod found in the west right-of-way line of Woolery Street(a 401' right-of-way), and continuing for a total distance of 511.14 feet to a point in the east right-of-way line of Woolery Street, from which a 5/8" iron rod with cap marked"TNP"found bears North 05132'32"W, 0.68 'feet; THENCE North 22005'20" East,along the east right-of-way line of Wooled Street, a distance of 77.58 feet to a 1 2"iron rod found in asphalt'; THENCE North 40`3 1'04" East, along the east right-of-way line of Woolery Street, a distance of 158.1 i feet to a V2"iron rod found in asphalt, THENCE North 670014'57" East,,,along the east right-of-way line of Woolery Street, a distance of 70.71 feet to the POINT OF BEGINNING and containing,576,698 square feet or 13.239 acres. LEGAL DESCRIPTION 11.8 64 ACRES Being a tract of land situated in the J.M.C. Lynch Survey,Abstract No. 955,Tarrant County,,Texas and being all of the 1.1.859 acre tract described in the deed to Trinity Park Center II Joint Venture.,recorded in Volume 8621,Page 2185,Deed Records,,Tarrant County,Texas, and being more particularly described by metes and bounds,as follows: BEGINNING at a galvanized spike found at'the northwest comer of said 11.859 acre tract,being in the east right-of-way line of the St. Louis,San Francisco and Texas Railway Company Line, and in the south right- of-way line of West Seventh Street(a 1010" right-of-way).- THENCE North 89'50'19" East, along the south night-of-way line of said West Seventh Street,passing at a distance of 2,30.45 a Y2"iron rod in concrete found, and continuing for a total distance of 380.60 feet to a 3/4""iron rod,found in the west right-of-way line of Stayton Street(a 50'right-of-way),for the northeast cornier,of said 11.8 59 acre tract-, THENCE South 15'59'04" West, leaving the south right-of-way line o "said West Seventh, and along the west right-of-way line of said Stayton Street, a distance of 363.12 feet to a ��"iron rod in concrete found; THENCE South 22'21" 2"'West, along the west right-of-way line of said Stayton.Street, a distance of 309.28 feet to a 1/2"iron rod in concrete found; THENCE South 27'59'28"'West, along the west right-of-way line of said Stayton Street, a distance of 120.44 feet to a 5/8"iron rod with yellow cap marked"TNP"found-, THENCE South 28'001"00" West, along the west right-of-way line of said Stayton Street, a distance of 142-70 feet to a 518"iron rod with yellow cap marked','Dunaway Assoc. Inc"'set(hereinafter called 5/8," iron rod set),fro rn which a 518"iron rod with yellow cap marked"TN"P" found bears North 87'22'19"'West, a distance of 1.0:2 feet; THENCE South 32"54'00" West, along the west right-of-way line of said Stayton Street, a distance of' 373.38 feet to a"Y"cut in concrete found; THENCE South 675600" East, along the south rig,ht-of-way line of said Stayton Street, a distance of 51.22 feet to a"Y"cut on concrete inlet found; THENCE South 32'54'010" West,, a distance of 162.,97 feet to a point for the southeast corner of said 11 w 59 acre tract, from which a PK nail found bears North 32'25"28,"East, a distance of 0.28 feet, THENCE North 86058'00"West, a distance of 327.26 feet to a 3/4"iron rod found in the east right-of-Wray line of said St. Louis, San Francisco and Texas Railway Company Line; -1 THENCE North 20'00'00" East, along the east right-of-wa,y line of said St. Louis,, San Francisco and Texas Railway Company Line, a distance of 79.6,01 feet to a 3/4"iron rod found; THENCE North 22000'00" East,, along the east right-of-way line of said St. Louis, San Francisco and Texas Railway Company Line, a distance of 187.00 feet to a 5/8"iron rod with yellow cap marked"TNP""found; THENCE No 22'04"00"' East,along the east right-of-way line of said St. Louis, San Francisco and Texas Railway Company Line,passing at a distance of 508.57 feet a 3/4"iron rod found, and continuing for a total distance of 1155.07 feet to the POINT OF BEGENNING and containing 516,788 square feet or 11.864 acres of land. EXHIBIT "Di" PROPERTY ACQUISITION AGREE,MENT This PROPERTY ACQUISITION AGREEMENT' ("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, and S07 #1, L.Pe ("Developer"'), a Texas limited partnership. RECITALS A. Contemporaneous with the execution of this Agreement, the City and Developer have executed an Economic and Community Development Agreement (the "EC'DlA") related to a mixed-use redevelopment of approximately twenty-five (25) acres of land in City generally bounded by West Seventh Street to the north, Lancaster Street to the south, Foch Street to the west and Trinity Park to the east the "Project"). B. Phase I of the Project calls for, among other things, construction of a road referred to in the E,CD,A as the Initial Spine Road (the "Initial Spine R ad"). The Initial Spine Road, as currently designed, will cross, the Fort Worth & Western Railroad tracks. As a result, it will be necessary to acquire certain property owned by the Fort Worth & Western Railroad, as more specifically described in Attachment 1 of this Agreement (the "Railroad Property"), which Attachment I is hereby made a part of this Agreement for all purposes. C. Under the EC DA, the City has agreed to use its best efforts to acquire the Railroad Property through the City's power of eminent domain, 'in accordance with the ECDA and this Agreement,, if Developer is unable to acquire the Railroad Property through good faith negotiations, between Developer and the owner of the Railroad Property. D, Developer has made good faith efforts through reasonable, negotiations to acquire the Railroad Property from its owner ("Ow er" at a fair market price and that Developer has been unsuccessful in consummating that acquisition. Accordingly, Developer has requested that the City proceed to acquire the Railroad Property through its power of eminent domain. E, The City agrees to proceed with the exercise of eminent domain in order to acquire the Property only in accordance with this Agreement. NOW THEREFORE, in consideration of the mutual benefits and promises contained herein and for other good and valuable consideration, the receipt and I sufficiency of which is hereby acknowledged, the City and Developer agree OFF1 Page Property Acquisition AgreerneDt Flo WOOK, HIS AGREEMENT Is; INCORPORTION OF RECITALS AND, ECDA. 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 Agreement.ent. The EC DA is hereby incorporated by reference for all purposes. 2* DEVELOPER'S REPRESENTATION. Developer represents and warrants to the City that it leas, prior to the execution of this Agreement, made good faith efforts through reasonable negotiations to acquire on. bel alf'of the City the Railroad Property from its owners at a ,fair market price for public access. 3, 'PUBLIC' P OIS . The City and Developer hereby aicknowledge and agree that acquisition of the Railroad Property is necessary to, without limitation, the public purposes set :forth, in the CDA and such other public purposes as, may be inherent erent to 'the construction of the Initial Spine Read and the Project in general. Developer has requested that, the City exercise its l'ow'er of eminent domain to acquire the Railroad property only with the intent to accelerate the completion of the Initial Spine Road., 4, FINANCIAL OBLIGATIONS* 4.1. The a The City shall pay, from, currently available City revenues, i the first 351000.00 of.the cumulative e of" the actual final purchase price of the Railroad Property and any actual costs directly connected with the acquisition of the Railroad Property and the eminent domain action authorized under this Agreement (including, but not limited to, fees for professional services, but specifically excluding, fees for professional services directly associated with any action bei.n.g handled by Counsel pursuant to Section 4.1(10, such as, by way of example only, fees for expert witnesses, which :fees shall be deemed fees for Counsel under this Section 4.1) and ('11): if the City retains outside counsel to represent the City in any eminent domain action initiated by the City for acquisition of the railroad Property or any action related to the City's acquisition of, attempted acquisition op or night to acquire the Railroad Property by means of Page Property Acquisition Agreement eminent domain, including, but not limited to, that action currently per in the United States District Court for the Northern District of Texas — Fort Worth Division, styled I Fort Worth & Western Railroad v. City of Fort Worth, 4:031CV0,319Y, and any necessary appearances before the Surface Transportation Board ("Counsel"), the first $50,000.00 of' any fees charged by such Counsel. The City shall have the sole night to determine whether assistance by outside counsel is necessary to carry out its obligations under this Agreement. If the City .11 determines that the retention of Counsel i's necessary, the Ci ty shall notify. Developer in writing, stating the name of Counsel and his or her proposed hourly fee. Developer will have three 1(3) business days to approve Counsel selected by the City, which approval shall be in writing and shall not be unreasonably withheld. If Developer reasonably denies approval of such Counsel within those three (3) business days, Developer shall provide the City with a written explanation and the City and Developer shall cooperate and negotiate in good faith either to resolve Developer's objections or to select other Counsel. If Developer fails to respond to the City's written notice within three (3), business days, such failure to respond shall be deemed an, ap proval selection. , of the City's of Counsel and consent to his or her hourly fee., 4.2. Develople . Developer shall pay (1) all sums for cumulative of the actual final purchase price of the Railroad Property and any actual costs, directly connected with the I acquisition of the Railroad Property and the eminent domain action authorized 10 under this Agreement (including, but not limited to, fees for professional services) in excess of $35,000.00 and (ii) all costs for legal services other than the first $50,000.00 in fees charged by Counsel pursuant to Section 4.1. 5, ESCROW ACCOUNT, The City, at the City's sole cost and expense and as a cost directly connected with the acquisition of the Railroad Property under this Agreement, will cause to be appraised the current fair market value of the Railroad Property and will provide Developer with a copy of such appraisal. Following receipt of that notification, the City shall deposit $,35,000.00, less any costs directly connected with the acquisition of' the Railroad Property and the eminent domain action authorized under this Agreement that have already been incurred, including the appraisal of the Railroad Property as provided above, and Developer shall deposit the remainder of the full amount of such appraisal, plus an additional sum equal to twenty-,five percent (25%) of the full amount of such appraisal (collectively, the "Escrow Funds"), with an escrow agent pursuant to the escrow pledge agreement attached hereto as Attachment 2, which is hereby made a part of this Agreement for all purposes. In addition, if the City retains Counsel, the City shall deposit an additional $50,000.00 to the Escrow Funds (the "Couns,el Escrow Funds"). The City will use the Escrow Funds to acquire the Railroad Property and to pay Page Property Acquisition Agreement an costs associated therewith) other than fees charged by Counsel, if any. The City will use the Counsel Escrow Funds to pay all fees charged by Counsel, with the first $50,000.00 of any such fees coming, out of the City's deposit and any remainder coming out of Developer's deposits. At such time as the City has received Counsel billings of $4,4,0!010.010, the City shall notify Developer in writing, and, within thirty (30) calendar days of such notice, Developer shall deposit $25,000.00 to the Counsel Escrow Funds. After the City's $,510,,O�00.00: in Counsel Escrow Funds have been expended in full, the City will provide copies of any Counsel invoices to both the escrow agent and to Developer. The escrow agent will pay any such invoice from the Counsel Escrow Funds, and Developer, within thirty (30) calendar days, of receipt of a copy of any such invoice, shall deposit an amount equal to such 'invoice into the Counsel Escrow Funds so that the balance of the Counsel Escrow Funds is restored to $2,5,,0001.00. Upon final adjudication or conclusion of all matters being handled by Counsel pursuant to this Agreement, (1) if Counsel fees exceeded $50,000.00, any remaining balance of Counsel Escrow Funds shall be distributed by the escrow agent to Developer, and (11) if Counsel fees were $50,000.010 or less,, any remaining Counsel Escrow Funds deposited by the City shall be distributed by the escrow agent to the City and any Counsel Escrow Funds deposited by Developer shall be distributed by the escrow agent to Developer. If Developer falls to deposit any Escrow Funds or Counsel Escrow Funds with the escrow agent, such failure shall constitute a material breach of this Agreement. 6, NEGOTIATIONS BY CITY*, 6.1, 1 nit 16 After deposit of the Escrow Funds, the City Attorney and/or Counsel shall use their best efforts to negotiate the terms and conditions of the purchase of the Railroad Property by offering to owner the fair market value thereof, as established by the appraisal undertaken pursuant to Section 5 of this Agreement. If the owner of the Railroad Property rejects the fair market value offer and makes, a higher counteroffer, the City shall submit the counteroffer to Developer for Developer's approval. Developer shall notify the City within five (5) business days of its decision regarding the counteroffer. If Developer rejects any counteroffer) the City shall proceed to use its best efforts to acquire the affected Railroad Property through eminent domain proceedings. 6.2. As Settlement. After an eminent domain action has been instituted, if the owner of the Railroad Property offers to settle outside of the proceeding for an amount in excess of the fair market value or $35,000 offered by the City pursuant to Section 6 of this Agreement, the City shall submit the proposed settlement offer to Developer for Developer's, approval. Developer shall notify the City within five (5) business days of its decision regarding the offer. The City shall not be authorized to make any settlement without the prior approval of Developer. If Page Property Acquisition Agreem,ent T�% ,_..,eveloper rejects any proposed settlement, the City shall continue with the eminent domain proceeding. 7. TITLE TO RAILROAD PROPERTY. The City will have title to the Railroad Property satisfactory to the City for public access purposes, whether acquired through eminent domain proceedings or otherwise, and the fact that Developer may have partially contributed to the acquisition costs of the public right-of-way and Railroad Property for public access shall not be deemed a grant of title of any kind to all or any portion of the Railroad Property. If' this provision is, determined to be unenforceable, then Developer agrees, to waive any claim to, the public right-of-way and to make any future conveyances of the Railroad Property to the City at no cost to the City other than as provided in Section 4.1 of this Agreement. 8, DEFAULT AND REMEDIES, An event of default under this Agreement shall occur if either party breaches any of its duties or 0-Wigations hereunder. In, this event, promptly after becoming aware of the default,, the non-defaulting party shall provide written notice to the, other party that describes the nature of the default. If the default arises due to Developer's failure to make any deposit into the Counsel Escrow Funds in accordance with Section 5, Developer shall have five, (5) business days to cure the default. For any other default, the defaulting party shall have thirty (30) calendar,days to cure the default, or if such default i.s not reasonably curable within thirty(30) calendar days, such additional time as may be reasonably necessary provided that the defaulting party is diligently pursuing cure of the default. If the default has not been fully cured within such time, the non defaulting party shall have all rights and remedies available under the law or in equity, including, but not limited to,, the right to terminate this Agreement, which may be effected by providing written notice tnereoi"I to the defaulting party. 91* INDEPENDENT CONTRACTOR. Nothing contained in this Agreement or any collateral agreements between the City and Developer with respect to the Project is intended by the parties to create a partnership or Joint venture between the parties,1 and any implication. to the contrary is hereby expressly disavowed. It is understood and agreed that this Agreement does not create a joint enterpn*se, nor does it appoint any party as an agent of any other party, for any purpose whatsoever. 10.1 INDEMNIFICAT10N, DEVELOPER SHALL INDEMNIFY, PROTECT, DEFEND, RELEASE AND Page Property Acquisition Agreement MOOED HARMLESS THE CITY, ITS CITY COUNCIL MEMBERS, EMPLOYEES, AFFILIATES, A GENT CONTRACTORS (OTHER THAN DEVELOPER) AND SUBCONTRACTORS (EACH AN "INDEMNITEE", FROM AND AGAINST ANY A ALL DAMAGES, LOSSES, LIABILITIES., PAYMENTS., OBLIGATIONS, PENALTIES, CLAIMS, LITIGATION E ANDS", ".�:SES, JUDGMENTS, LAWSUITS, PROCEEDINGS, COSTS, DISBURSEMENTS OR EXPENSES (INCLUDING, I HO T L A ION, FEES, f Ste!'U ENTS AND REASONABLE EXPENSES OFATTORNEIS, ACCOUNTANTS AND OTHER PROFESSIONAL ADVISORS AND OF' EXPER,T WITNESSES AND COSTS OF INVESTIGATION AND PREPARATION), ANY KIND OR NATURE WHA ISOE VER, INCL VDING, B U O T LIMITED TO, THOSE FOR PR OPER T DAMAGE., PERSONAL INJURY OR DEATH (COLLECTIVELY "DAMAGES"), , IRE CAL Y OR I DIR'CIL Y RES UL TINE FR OM, RELA TINS TO OR A RISING T O' I, THE A C +NISITION BY ANY MEANS F THE RAILROAD PROPERTY, ANDIOR (H) ANY BREACH OR NON-PERFORMANCE, PARTIAL OR TOTAL, F THIS AGREEMENT BY DEVELOPER OR ANY OF ITS OFFICERS, MEMBERS EMPLOYEES, AGENTS, CONTRACTORS OR SUBCONTRACTORS, EXCEPT TO THE EXTENT THAT ANY SUCH DAMAGES ARE DIRECTLY CA SE BY THE NEGLIGENT ACT OR OMISSION' OR INTENTIONAL MISCO O OF ANY I DS' NI TEE. IN TH E VENT THA T ANY DAMAGES GES GHQ OR THREATENED TO BE BROUGHT' AGAINST AN INDEMNITEE, SUCH INDEMNITEE SHALL PROMPTLY NOTIFY DE VEL P R I WRITING (EROVIDEP., HOWE T ANY FAILURE TO SO NOTIFY DEVELOPER SHALL NOTRELIEVE DEVELOPER OF ITS OBLIGATIONS UNDER THIS SECTION UNLESS "I) SUCH ""AIL VRE TO S NOTIFY DIRECTLY PRECLUDES DEVELOPERYS INVESTIGATION AND DEFENSE F ANY CLAIM AS A TIER OF LAW A" (11) DEVELOPER DOES NOT OTHERWISE HA VE NO W..ED E EITHER ACTUAL CONSTRUCTIVE, OF SUCH CLAIM AND DEVELOPER, AT DEVELOPERS SOLE COST AND EXPENSE, SHALL RESIST AND DEFEND H SA E ITH LEGAL COUNSEL SELECTED BY DEVELOPER AND ACCEPTABLE THE INDEMNITEE AND WITH REASONABLE PARTICIPATION BY THE I DE NITEE. IN NO EVENT SHALL DEVELOPER O GAL COUNSEL EMPL 0 YED B Y DE VEL OPERA DMIT L,IA BI. ITT IN ANY MA TIER ON BEHALF F ANY INDEMNITEE WITHOUT THEADVANCE WRITTEN CONSENT OF THE CITY. E VELOPER'S OBLIGA TIONS UNDER ICI S SECTION 10 SHALL BE I ADDITION TO", AND NOT EXCLUSIVE OF, ANY OBLIGATIONS OF Page Property Acquisition Agreement 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: Developer: Attn: Director Attn-,, Ken Hughes Economic and Community Development UC Urban Department 7001 Preston Road,, Suite 500 1000 Throckmorton Dallas, TX 75205 Fort Worth, TX 76102 with, a copy to.-, with a copy to Attno. City Attorney Attn,- Susan Mead City Attomey's Of Jackson Walker 1000 Throckmo�rton 901 Main Street, Suite 6�000 Fort Worth,TX 76102 Dallas, TX 752,02 12. ASSIGNMENT AND SUCCESSORS, Developer may not assign, transfer or otherwise convey any of its rights or obligations, under this Agreement to any non-Affiliate party without the prior written consent of the, City, which consent shall not be unreasonably withheld or delayed, conditioned on (1) the prior approval of the assignee or successor and a finding by the City Manager that the proposed assignee or successor is financially capable of completing the Project and ('11) the proposed assignee or successor has executed a written agreement with the City under which it agrees to assume all covenants and of of Developer under this Agreement. For purposes of this Agreement, an "Afriliate"' of Developer shall mean (1) any entity in which a majority of the ownership consists of individuals,ndividuals, partnerships, trusts or their individual partners or benefician*es) or other entities included, whether by legal title or beneficially, in the present ownership of Developer or (11) any entity which has at least a fifty-one percent (5 1%) ownership interest in Developer or any entity in which Developer has at least a fifty-one percent (51%) ownership interest. Page Property Acquisition Agreement 13. COMPLIANCE WITH LAWS, ORDINANCES, RUL AND REGULATIONS. This Agreement will ble subject to all applicable federal, state and Decal laws, ordinances,ordinances,l rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances, as amended. 141 GOVERNMENTAL POWERS, It is understood 'that by execution of this Agreement, the City does not waive or surrender any of it governmental powers. 1 510 NO, WAIVER. The failure of either party to insist upon„the performance of'any term or provision of this Agreement r t exercise any ri ht grant hereunder shat 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, anses on the basis of any provision of this Agreement,t, venue for such action shall lie in state courts located in Tarrant 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. NO T,H,IRD PARTY RIGHTS, The provisions and conditions of this Agreement are solely for the bereft 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. 18. 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, inclement weather, governmental restrictions, regulations, or interferences, unreasonable delays by the City in issuing any permits or certificates of occupancy or conducting any inspections of or with respect to the Project (based on the amount of time e w that the City customarily requires in undertaking such activities and based on the then Page Property Acquisition Agreement current workload of the City de,partment(s,) responsible for undertaking such activities,), or delays caused by unforeseen construction or site issues, fire or other casualty, court injunction, necessary condem-nation proceedings,, acts of the other party, its affiliates/related entities and/or their contractors, or any actions or inactions of third parties or other circumstances which are reasonably beyond the control o,f' t,he 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 fro doing or performing the same during such period of delay, so that the time period applicable to such performance shall be extended for a period of time equal to the period such party was delayed. 194, SE,VERABILITY, If any provision of this Lease 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. 20, PRIORITY OF DOCUMENTS. In the event that any to or condition of this Agreement directly conflicts with any to or condition of the CDA, the EC DA shall control unless otherwise specifically stated in this Agreement. In the event that any term or condition of this Agreement directly conflicts with any term or condition of a CFA, this Agreement shall control unless, otherwise specifically stated in the CFA. 21, 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. 22, CAPTIONSO Captions .rid headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement., 23, 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 Page Property Acquisition Agrecrnent the matters contained herein. Any prior or contemporaneous oral or written agreement i's hereby declared null and void to the extent in conflict with any provision of this Agreement. Thi's 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. k. 24, 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. EXECUTED as of the last date indicated below.- CITY OF FORT WORTH. S07 #19 L.P., a Texas limited partnership: BY-6 its sole general partner By: By* Reid Rector Name.-, Assistant City Manager Title.- Date: ,�i//,51d,- Date: APPROVED AS TO FORM AND LEGALITY-. By: Peter Vaky Assistant City Attorney C. 0.19453 012-04-03 Page Property Acquisition Agreement ATTACHMENT I TO PROPERTY ACQUISITION AGREEMENT DESC" PTION OF PROPERTY' Page Escrow Pledge Agreement IB D LEGAL DESCRIPTION RR CROSSING Being a tract of land situated in the J.M.C. Lynch Survey, Abstract No. 955, Tarrant Count:, Texas and being part of the St., Louis, San Francisco, Texas,, Railroad Right of Way (called 100: foot wide right of L-1 t=7 way) and being more particularly described by metes and bounds as follows: C,O NCING at a 1/2" iron rod found at the northeast comer of a 2.496 acre tract of land described in said deed to Trinity Park Center 11 Joint Venture, recorded in Volurne 8621, Page 2185, Deed Records, Tarrant County, Texas, being in -the 'west right-of-way line of the St. Louis, San Francisco and Texas Railroad, and being South, 89'50"09" 'West, 107.75 feet and S 22104"58"W', 449.80 feet from the northwest comer of a 11.859 acre tract described in said deed to Trinity Park Center 11 Joint Venture, recorded in Volume 8621, Page 2185, Deed Records, Tarrant County, Texas, a galvanized :spike found in the south. right-of-way line of'West Seventh Street(a 100'right-of-way); THENCE S 22004'581 w, along the east line of said 2.496 acre tract and the west right-o�f-way line of said St.,Louis,, San Francisco and Texas Railroad,a distance of 573.94 feet to the POINT,OF BEGINNING; THENCE North 8'9'59'39"East, 107.94 feet to a point in the east right-of-wa y of said Railroad- THENCE South 22'04'00" West, with said east right-of-way, 614,,75 feet to a point; THENC South "5939" West 107.96 feet to a point in the said west right-of-way- E 89 THENCE North 22004'58"' East, with said west right-of-way, 64.75 feet to: the point of beginning and containing 6,477 square feet or 0.1 acres, This description compiled frorn-records of a survey preformed in April,2002.i , o ATTACHMENT 2 TO PROPERTY ACQUISITION AGREEMENT ESCROW PLEDGE AGREEMENT I% Thi's ESCROW PLEDGE AGREEMENT ("Agreement 1") is made and entered into by and between the CITY OF FOR WORTH ("Clity"), a home rule municipal corporation organized under the laws of'the-State of Texas; 5017 #1, L.F. `Developer"), a Texas limited partnership, and RATTIKIN TITLE COMPANY,, as escrow agent hereunder in such capacity, the "Agent"),. RECITALS A. The City and Developer, have executed an Economic and Community Development Agreement ("E DA") and a Property Acquisition Agreement (the "Property Acquisition Agreement"), both public documents on file in the City Secretary's Office as City Secretary Contract No. B, Under the ECDA and Property Acquisition Agreement, the City has agreed to use its best efforts to acquire certain property owned by the Fort Worth & Western Railroad, as more specifically described in Attachment I of the Property Acquisition Agreement (the "Raftroald Property") through the City's power of eminent domain. C. The City and Developer have agreed to deposit certain funds with Agent,, and to authorize Agent to disburse those funds, pursuant to and in accordance with the Property Acquisition Agreement. 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, Developer and Agent agree as follows*- AGREEMENT 1. INCORPORTION OF RECITALS AND DOCUMENTS, The City, Developer and Agent 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. The E and the Property Acquisition Agreement is hereby incorporated by reference for all purposes,. Page Escrow Pledge Agreement 20 DEFINITIONS, Capitalized terns used and not otherwise ise defined in this Agreement s all have the respective meanings set forth or referred to in this Section 2. Except where the context otherwise requires, words importing the singular number shall include the plural and vice versa. "Business ay" shall mean any day on which banks are open for general banking business in the State of Texas, other than a Saturday, a Sunday, a legal holiday or any other day on which banks in the State of Texas are required or authorized by law or executive order to close. "Condition" shall mean the delivery to and receipt by an officer of Agent at Agent's office, during Agent's business hours on a Business Day of a written statement from the City of..the amount of xpenses then due the, City,, together with copies of any invoices for such :expenses, and stating that Developer has not previously paid the City for such Expenses. "Counsel Escrow Funds" shall mean (i) the City Is initial deposit with Agent of Counsel Escrow Funds as defined in and required by the Property Acquisition Agreement; plus (ii) any additional deposits thereto by Developer with agent; plus (iii) all investments thereof,p, neome therefrom and eamin g s thereon. "Escrow Funds"" shall all can i) the City's and Developer's initial deposit with .gent of Escrow Funds as defined in and required by the Property Acquisition Agreement; plus (iii any additional deposits thereto by Developer with Agent; plus (iii) all investments thereof, income therefrom and earnings thereon. Expenses shall mean all costs payable by Developer from the Escrow Funds and/or the Counsel Escrow Funds pursuant to the Property Acquisition Agreement. "Person" shall mean any individual, corporation, trust, unincorporated organization, governmental authority or any other form of entity. "Permitted Investments" shall mean investments ire mutual funds investing exclusively in tax-exempt municipal bonds and eash investments, all such invested funds d cash to he available for withdrawal without penalty upon two Business Days' notice. 3 DEPOSIT IN ESCROW. The City will deliver to Agent the Escrow Funds and Counsel Escrow Funds to be held by Agent in escrow pursuant to the provisions of the Property Acquisition Page Escrow Pledge Agreement Agreement and this Agreement. Developer will deliver to Agent the Escrow Funds, to be held by Agent in escrow pursuant to the provisions of the Property Acquisition Agreement and this Agreement and shall make such future deposits to the Escrow Funds, and Counsel Escrow Funds as may be required from time to time to pay Expenses, and to maintain the market value of the Escrow Funds and Counsel Escrow Funds, at the level required hereunder. 4. ESC OW INSTRUCTIONSO Agent is hereby authorized and instructed to deliver, from time to time and notwithstanding Section 6.4 of this Agreement, Escrow Funds, to the City or at the direction of the City in an amount sufficient to pay Expenses upon strict compliance with the Condition. Upon the City's satisfactio�n of the Condition, Agent shall deliver the Escrow Funds to the City or pursuant to the direction of the City without necessity of any action by or consent from Developer. A_ny Escrow Funds and1or Counsel Escrow Funds, remaining on deposit with Agent after final acquisition of' -the Railroad Property and payment of' all Expenses shall be distributed to the parties in accordance with the Property Acquisition Agreement and pursuant to written directions signed by both the City and Developer. 5. INVESTMENT OF FUNDS HELD BY AGENT., Pending distribution, all collected and available Escrow Funds, and/or Counsel Escrow Funds, held by Agent pursuant to this Agreement may be invested in Permitted Investments,in accordance with written directions, signed by both the City and Developer., 6. CONCERNING THE AGENT. 6.1. All Parties acknowledge and agree that Agent is acting solely and exclusively as a depository hereunder. Agent shall have no liability to any Person in acting upon any written notice, request,, waiver, consent, certificate, receipt, authorization or other paper or document which Agent believes to be genuine and what it purports to be. 6.2. Agent shall not be liable to any Person for anything which it may do or refrain from doing in connection with this Agreement, including Agent's own negligence, but excluding Agent's own gross negligence or willful misconduct., 6.3. Agent may confer with legal counsel in the event of any dispute or question as to the construction of any of the provisions her of", or its duties hereunder., and it shall incur no liability and it shall be fully protected in acting in accordance with the opinions of such counsel. Page Escrow Pledge AgTeement V 6,4* S`ub*ect to Section 4 of this 0 9 is Agreement, in the event of any co�nflict,ing or inconsistent claims or demands being made in connection with the subject matter of this, Agreement by Persons authorized to make such claims or demands, or in the event that Agent is in doubt as to what action it should take hereunder, Agent may, at its option, refuse to comply with any claims or demands on it, or refuse to take any other action hereunder, so long, as such disagreement continues or such doubt exists, and in any such event, Agent shall not be or become liable in any way or to any person for its failure or refusal to act, and Agent shall be entitled to continue to refrain from acting until (1) the rights of all Persons making conflicting or inconsistent claims or demands have been fully and finally adjudicated by a court of competent jurisdiction, or (ii) all differences shall have been settled and all doubt resolved by agreement among all of the Persons makincr conflicting or inconsistent claims or demands, and Agent shall have been notified thereof in writing by all such Persons. In addition to the foregoing rights, in the event Agent has any doubt as to the course of action it should take under this Agreement, Agent is hereby authorized to petition any District Court of Tarrant County, Texas or the United States, District Court of the Northern District of Texas — Fort Worth Division for instructions or to interplead the Escrow Funds and/or Counsel Escrow Funds into such court. The parties agree to the jurisdiction of the aforementioned courts over their persons as well as the Escrow Funds and/or Counsel Escrow Funds, waive personal service of process, and agree that service of process by certified or registered mail, return receipt requested, to the address set forth below each party's signature to this Agreement shall constitute adequate service. To the extent permitted by law, each of the parties hereby agrees to indemnify and hold Agent harmless from any liability or losses occasioned thereby and to pay any and all of its costs, expenses, and attorney's fees, 'incurred in any such action and agree that, on such petition or interpleader action, Agent,, its servants, agents, employees or officers will be relieved of further liability. 6.5. Agent is hereby given a lien upon, and security, interest in, all Escrow Funds and Counsel Escrow Funds in Agent's actual or constructive possession, and all investment or reinvestment of such Escrow Funds and Counsel Escrow Funds, and any earnings thereon, to secure Agent's rights to payment or reimbursement or both) under this Agreement. 6.6. Agent may resign for any reason upon at least thirty (30) calendar days,' advance written notice to the parties to this Agreement. In addition, the City and the Developer may jointly terminate this Agreement upon at least thirty (30) calendar days' notice to Agent. Upon the effective date of termination, Agent shall (i), in accordance with written instructions from both the City and Developer,, deliver all cash and other property in its possession under this Agreement to any successor escrow agent appointed jointly by the City and Developer or (ii), if no successor escrow agent has been so appointed, to any court of competent jurisdiction in Tarrant County, Texas. Upon either such delivery, Agent shall be released from any and all liability under this Agreement except Page Escrow Pledge Agreement that arising pursuant to Section 6.2 of this Agreement prior to the effective date of termination,. A termination under this, paragraph shall all in no way discharge 0 paragraphs 6.4, 6.5 and 6.7 affecting reimb ursement of expenses, indemnity and fees, 61.7. Contemporaneously with the execution of this Agreement, the City shall pay to Agent a base fee which shall be deemed fully earned immediately, regardless of the actual length of time during which the Agreement is effective, which amount shall be included as a cost of the City directly connected with the acquisition of the Railroad Property and shall be deducted from the amount that the City is required to deposit as Escrow Funds under the Property Acquisition Agreement. In addition, the parties agree that Agent may be paid additional fees, based on a fee schedule, agreed to by the parties and that is subsequently attached hereto, for the services rendered by Agent pursuant to the provisions, of this Agreement. Such fees shall be paid as ftom the Escrow Funds and shall be deemed to be and treated as a cost directly connected with the acquisition of the Railroad Property, as provided by and in accordance with the Property Acquisition' Agreement. Agent shall also be reimbursed for its reasonable expenses, including attorneys' fees, incurred in connection with the performance by it of such services (to the extent that Agent needs to consult an attorney under the terms, of this Section 6), 'in the same manner as provided for the payment of the fees paid pursuant to the fee schedule set forth in hxmbit "A". 6.8. It is strictly understood that Agent has no duty to disburse any funds to any Person until such funds have been collected by Agent and those funds are available. 7o RULES OF CONSTRUCTION. Except as otherwise expressly provided or unless 'the context, otherwise requires, the following provi,si,oins, shall apply for all purposes of this Agreement: 7.1. All Persons defined or mentioned herein, as parties to this Agreement shall include, as applicable, each and all of their respective heirs, legal representatives, successors and assigns., 7.2. All references to agreements, instruments, documents and 'the like shall mean and include all amendments, supplements and modifications thereto and restatements thereof and substitutions therefore, as such agreements, instruments, documents and the like are so amended, supplemented, modified or restated in accordance with their respective terms. 7.3. The words "herein," "hereof' and "hereunder"' and other words of similar 0 import refer to this Agreement as a whole and not to any particular section or other subdivision. Page. Escrow Pledge Agreement A* 7A, All headings used in this Agreement are for the convenience of the parties R only and shall not be used in construing the meaning or intent of the terms and provisions hereof. 80 MISCELLANEOUS. 8.1. All notices and communications hereunder shall be in writing, and shall be le" -0 deemed to be duly given if sent registered or certi,liect mail, return receipt requested, to the address set forth below the signature of the party to receive such notice. Any party to this Agreement may, from time to time,, change its address for notices, by giving written notice of such change to the other parties hereto. Agent shall not be charged with knowledge of any fact, including but not limited to, performance or non-performance of any condition, unless it has actually received written notice thereof from all of the parties, hereto of their authorized representative clearly referring,to this Agreement. 8.2. The rights created by this Agreement shall inure to the benefit of, and the obligations created hereby shall be binding upon, the successors and assigns of each of the parties hereto. 8.3. This Agreement shall be construed and enforced according to the law of the State of Texas. 8.4. This Agreement shall terminate, and Agent shall be discharged of all responsibility hereunder at such time as Agent shall have completed its duties hereunder,: provided, however, Agent's rights to indemnify and to receive payment of its fees, and expenses shall survive any ten-nination of this Agreement. 8.5. This Agreement may be executed in several counterparts, which taken together shall constitute a single document. 8.6. This Agreement constitutes, the entire understanding and agreement of the parties hereto with respect to the transaction described herein and supersedes all Prior agreements or understandings, written or oral, between the parties with respect thereto. There are no implied duties under this Agreement., Agent's only duty is to act in accordance with specific written instruction furnished by the parties to this Agreement. 8-7. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way., Page Escrow Pledge Agreement 46 4,!' 8,8 Both the City and Developer shall provide Agent with a completed W-9 or W-8 indicating its Employer Identification Number as assigned by the Internal Revenue Service. Additionally,, each party shall complete and return to Agent any and all tax forms or reports required to be maintained or obtained by Agent., All interest or other mcome earned under this Agreement shall be allocated and paid as directed by and reported to the Internal Revenue Service as having been so allocated and paid. 8.9.1 No arn end mentI modification or waiver of any provision of this Agreement nor consent to any departure by any Person from the provisions hereof shall be effective in any event unless the same shall be in writing and signed by each of the City, Developer and Agent, and then, any such waiver or consent shall, be effective only in the specific instance and purpose for which given. 8.10. No amendment, modification or waiver of any provision of this 0 Agreement nor consent to any departure by any Person from the provisions, hereof shall be effective in any event unless the same shall be in wn*tlng and signed by each of the City, Developer and Agent. 8.11. The following persons are authorized to direct Agent regarding any transactions, to this Agreement including, but not limited toI, disbursements and 0 investments authorized herein: Reid Rector, City Developer 7� IN WITNESS, WHEREOF, the City, Developer and Agent, have executed this Agreement as of the last date below: I/I CITY OF FORT WORTH.* S,107#1-� a T�x"as li i 'partnership. V, VVe Al V'AtE Ale general partner Por ........... Reid Rector Name.- Title.- Assistant City Manager Date: Date: Page Escrow Pledge Agreement . ROVE AS TO FORM LEGALITY:. By: Peter Vy Assistant City Attorney C: none required TT:IKIN TITLE COMPANY; By: Name: Title: Date-. Page Escrow Pledge Agreement u lty of I Port Worth, Texas 0 1 0 0 a or "d ou"Cit C101 li"Icatlio" IYD 10CW1 DATE EFE RENCE,N UIMBER LOG NAME PAGE 1/28/03 C A 9'4513 17ECONOMIC 11 of 3 SUBJECT I ECONOMIC DEVELOPMENT PROGRAM AGREEMENT WITH S07#1, L.P. FOR THE SOUTH OF SEVENTH PROJECT RECOMMENDATION: It is recommended that the City Council: 1. Authorize the City Manager to execute an Economic Development Program Agreement with So7#1, L.P. (the Agreement) governing the obligations, of both the City and So7#1, L.P. with respect to the development of-the South of Seventh Project; and 2. Authorize the e,xp�end:iture of no more than $145,000 in City, funds for projects related to this agreement. DISCUSSION: The South of Seventh Project (the Project), has been selected, for inclusion in the Transportation-Land Use Joint Venture Grant Program established by the North Central Texas Council of Governments (NCTCOG)., The goal of this program is to, encourage the development of land in a manner that mitigates growing traffic congestion in the region,on, contributes to the improvement of regional it quality, and addresses, long-term transportation funding constraints. Under the program, federal transportation grant funds are provided to local public sponsors, such as the City, for qualified transportation-related aspects of approved private ly-fu n ded land development projects, such as the South, of Seventh Project. On November 5, 2001, the City was notified that, the Project had been selected for inclusion in the program. The proposed Agreement will address the specific manner in which the, City will expend public funds, i including grain�t funds, received for the Project. The total amount of program grant funds received to support the, project is $13,221,639. A portion of these program grant funds ($19,82,465) shall support the development, of future phases of the project subject to the terms of this Agreement., The, other, portion of the program grant funds not governed by this Agreement shall reimburse the City its participlation for Phase 1 of the project and pay for public improvements within the area. The details of the grant fund expenditures are explained below. The Project wil�l be developed in phases. In Phase 1 of the Project, S,o,7#1, L.P. the Developer) has committed to, the foll�lowingi: (i make at least $9,400,00,0 in real estate and infrastructure improvements, specifically including infrastructure for 60 townhome lots; construction of 12 to,wnhomels; physical improvements for a railroad crossing; marketing center; valley detention pond-, sanitary sewer liift; and other improvements related to, Phase 1; (ii), construct a spine road (Museum Way) connecting West Seventh Street to the Lancaster Bridge overpass., The estimated total cost of Museum Way is valued at $3, 2,611 0; and (iii) provide the required 20% local match for the entirety of the program grant funds through the contribution of land or cash valuing a minimum of $18015,,410. The contribution shall be executed in accordance with all state and federal funding rules and regulations., Forte Developer's initial investment, in Phase 1 the City commits to 30% of the total cost of Arl# ` Ulty of I ort Worth, Texas 0 A�votl A"d rou"ell 0� mu"Icatiol" IVD CW1 DATE REFERENCENUMBER LOG NAME PAGE 1/28/03 C-1 9453 17ECONOMIC 2 of 3 ... ................ SUBJECT ECONOM�IC DEVELOPMENT PROGRAM AGREEMENT WITH S07#11, L.P. FORTHE SOUTH O�F SEVENTH PROJECT' construction of �u�seum Way, with the Developer participating at 70% of the costs, as detailed in a i I I th subsequent, separately executed Community Facilities Agreement. The City si participation in is aspect of the �Project will be capped at 10% of the total private investment (estimated at $9,400,0010) or $9401,00110, whichever is less. To, facilitate thel construction of Museum Way, the City will a�lso secure the right to cross the Fort Worth and Western Railroad within the South of Seventh property for the construction of Museum Way. The City'lls, participation for costs, associated with acqu�iring the, righ�t-to-croiss shall not exceed $35,000 (excluding any costs of outside legal counsel)�. The Developer shall play for any costs in excess of $35,10010, If outside legia,l fees are incurred, the City shall play the first $510,000 and the Developer will pay al�l other fees,. The City's total maximum exposure to costs related to, all expenses in obtaining the cr�oss,ing shall not exceed $8,5,,00101 from the New Development Fund. Beyond this initial phase, future phases, of the Project are intended to resultin a 2,5 acre mi�xed-us,e and transit ,supporting development project with an estimated investment 'in real and personal property valued at $108,7001,000. In return, for the ecionomic, blenefits, that will accrue as a result of So7#1,, L.Pl.,"s redevelopment of the property, the City commits to the following: (i) waive building permit-related fees and Community Facility Agreement" application fees for Phase `1- (11) conduct a traffic impact analysis for the Cultural District that w�ill commence within 310, days, of execution of this Agreement. The cost ofthe study will not exceed $60,000 from the New D�evel�opme�n�t Fund", (iii) if warranted through the traffic Impact anal�ys,is, 'initiate an appropriate amendment to, the Master Thoroughfare Plan within thirty (30) days, upon completion of the traffic impact analysis; and (iv) secure, administer and' explend piroig,ra�im:, grant funds. 'The City's maximum financial responsibil�ities under this agreement would be: Rights,-of-Way Acquisition $ 35,000 LegalFees $ 5GW000 Traffic Impact Study $, 6101 00 Tol�tall $1451010,0 In fulfillment of the City's obligations under a required agreement with the Texas Department of Transportation for riecet,pit of program grant �fu�ndsi, the City shall submit for City Council considerat,ion a r�equired resollution to NCTC,OG to initiate the grant�, fu�nding process,. The toltal amount of grant funds allocated under thi's Agi�re�eme,nt shall not exceed $1982,1465. The grant funds will be explended to, pay for the, southern extension of Museum, Way south of the Lancaster Bridge to connect to Fo�ch Street and landscape and' pledestrila n I m,prove ments. The City shall carry out this disbursement in accordance with this Agreement, the grant guidelines and al�l state and federal funding rules and' regulations. Program grant funds falling outside of this, Agreement totaling $2,239,174 shall pay for public, infrastructure improvements within the area bounded on the north by West Seventh Street, on the south bly Park, and on the, west by Unive,rs',it Boulevard. The of Fort Worth, Texas V el or anil 0 l gil el 0 mu�"Icatlo" D q C kow I DATE REFERENCE NUMBER LOG NAME PAGE 1/28/03 C-1 9453 I �17ECONOMIC 1 3 of 3 SUBJECT ECONOMIC DEVELOP ENT PROGRAM AGREEMENT WITH S07#1 L.P. FOR THE SOUTH OF SEVEN'TH PROJECT expenditures consist of.# • Construction of a pedestrian bridge connecting Trinity River Park to the downtown Central Business District ($1,078,243); and • Pedestrian and roadway improvements to public rights- -way (,$2,20,931); and • Reimbursed costs from the City's participation in Phase 1 to be used for other costs, eli gible under the terms of the grant program ($940,000). FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are avallable, in the current capital budget, as appropriated, of the Critical Capital Project Fund. RRV-k AMOUNT Submitted for City Manager's FUNDT ACC OUNT =CENTER �CITY S CRETA►R' Office by,: (to) Reid Rector 6140 Originating Department Head: IVM Higgins 6192 (froni)i AkPPROVED,2/4/03 C1'1 531200 020116136360 $145,00,01-00 Additional Information Contact., Christine Maguire 81 87 ......................... b 2 LL Q [� ter .,.... LLI cq E LO CL I - LLl C. Cl7 ,- a n 1 a + a , AMMEd Lu x , in � a� .. L its U� p coIlk"N '0.N°° y C t Olt a Ar �1 t nra VAS _= ka ti .l �,.1+I'..,;:/^,"."'. �T?�t�4• � �� CAM�'�� � °rr w,.Iii rrua�n r- � -r p 4 81p rr r�r✓ I �� � '� 111,o' ^'a, dS C T 4 rrr"rj'1 s \ E6 to a {4 tlIK 4 �a`Ivl` k , 4,1 dam' C C + 1 L co° 'c v p N U CL 02 C 0 CL ` J1 Z 0.0 a 0 0 0 GALy S ro4a U)7 _ .t C7 d "'O D 0 . 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