HomeMy WebLinkAboutContract 49149 CITY SECRETARYi
CONTRACT NO. �l G
COMPLETION AGREEMENT—LENDER FUNDED
This Completion Agreement ("Agreement) is made and entered into by and among the
City of Fort Worth ("City"), and Saginaw Watersbend, Ltd., a Texas Limited Partnership
("Developer"), and Southwest Bank ("Lender"), effective as of the date subscribed by the City's
City Manager or Assistant City Manager. The City, the Developer and the Lender are hereinafter
collectively called the "Parties".
WITNESSETH:
WHEREAS, the Developer owns that certain tract of real property that contains
approximately 30.064 Jacres that is located in the City, the legal description of which tract of real
property is marked Exhibit "A" —Legal Description, attached hereto and incorporated herein for
all purposes ("Property"); and
WHEREAS, the Developer intends to develop the Property as an addition to the City
through plat FP 16-063; and
WHEREAS, the Developer and the City have entered into a Community Facilities
Agreement relating to the development of Watersbend South Phase 1A("CFA"); and
WHEREAS, the City has required certain assurances of the availability of funds to
complete the water and sewer utilities, streets/paving, storm drain, street lights and street signs
for the development of the Property("Improvements"), and
WHEREAS, in order to provide such assurances as have been required by the City, the
Lender has agreed to advance certain funds to the City for Hard Costs (which term is hereinafter
defined) subject to, and in accordance with, the terms, provisions and conditions of this
Agreement; and
WHEREAS, the Developer has granted to the Lender as additional security for the Loan
(which term is hereinafter defined) a security interest in all plans and specifications for the
development of the Property (collectively,the "Plans"); and
WHEREAS, the Parties desire to set forth the terms and conditions of such
accommodations as are described above.
NOW THEREFORE, for and in consideration of the benefits to be derived from the
mutual observance by the Parties of the terms and conditions hereof, and for ideration
89
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City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded Q� j
CFA Official Release Date:07.01.2015 FOFFICIJL RECORD �GE\�C� N
Page 1 of 16 ECRETARY -v
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of Ten Dollars ($10.00) and other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Recitals. The foregoing recitals are true, correct and complete and constitute the
basis for this Agreement and they are incorporated into this Agreement for all purposes.
2. The Completion Amount. The City and the Developer agree that the Hard Costs
required to complete the Improvements in the aggregate should not exceed the sum of Three
Million Two Hundred Sixty-Five Thousand Six Hundred Eighty-Four Dollars and Fort-Four
Cents ($3,265,684.44), hereinafter called the "Completion Amount". Notwithstanding the
foregoing, it is acknowledged that the actual costs of completion of the Improvements may vary
as a result of change orders agreed to by the Parties, but such variances for the purposes of this
Agreement shall not affect the Completion Amount as used herein.
3. Adjustments to the Completion Amount. The Lender may from time to time
make advances to the Developer for the development of the Property under the development loan
that has been made by the Lender to the Developer for the purpose of financing the costs of
constructing the Improvements for the Property (the "Loan") subject to, and in accordance with,
the terms, conditions and provisions of the Loan Documents (which term is hereinafter defined)
evidencing and securing the Loan. Some of those advances shall be for Hard Costs as specified
in the "Approved Budget" relating to the Loan, a copy of which Approved Budget is marked
Exhibit "B", attached hereto and incorporated herein for all purposes, with the Hard Costs line
items highlighted. The term "Hard Costs" shall mean the actual costs of construction and
installation of the Improvements. To the extent that advances under the Loan are for the payment
of Hard Costs, the Completion Amount shall be deemed reduced, dollar for dollar. The Lender
may withhold statutory retainage from any advances under the Loan or pursuant to this
Agreement. All such retainage withheld, to the extent it is attributable to Hard Costs, shall also
reduce the Completion Amount dollar for dollar. All retainage withheld by the Lender for Hard
Costs that are advanced to the City pursuant to this Agreement shall be released to the City as
provided in the Texas Property Code upon expiration of the statutory retainage period.
4. Completion by the Developer. The Developer agrees to complete the
Improvements on or before the date for completion that is established in the Loan Documents
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date:07.01.2015
Page 2 of 16
plus thirty (30) days (the "Completion Date"), in accordance with the CFA, the Plans approved
by the Lender and the City and all documents evidencing or securing the Loan (collectively, the
"Loan Documents"). For the purposes of this Agreement, the development of the Property shall
be deemed complete upon acceptance by the City of the Improvements. The City shall promptly
notify the Lender and the Developer upon such acceptance.
5. Completion by the City. In the event that either: (A) the development of the
Property is not completed by the Completion Date for any reason whatsoever, or (B) the
Developer is in default under the Loan, then the Lender, at its sole option, may request the City
to complete development. The City may, at its sole option and at the cost and expense of the
Developer, within 10 days from receipt of Lender's request, notify Lender that it will undertake
to complete the Improvements and the City shall then commence, pursue, and complete the
Improvements in a reasonably timely, diligent and workmanlike manner in accordance with the
Plans, subject to the terms of this Agreement. The Lender and the Developer agree that the City
may use the Plans as necessary to complete the Improvements.
If the City does not timely elect to complete the construction of the Improvements or if
the Lender does not request the City to complete construction of the Improvements, then the
Lender may at its election terminate this Agreement, or at its option, proceed to complete the
Improvements, or foreclose on any of its collateral, or take any and all such action as may be
provided under the Loan Documents.
6. Advance of Completion Costs to the City and Delivery of Hard Costs Collateral
to the City. In the event the Lender has requested the City and the City has elected to complete
the Improvements, Lender shall transfer to the City all remaining undisbursed Hard Costs
specified in the Approved Budget within 10 days of the date that the City elected to complete and
provided Lender with written notice of such election.
The Developer hereby authorizes and instructs the Lender to make the transfer of any
remaining undisbursed Hard Costs specified in the Approved Budget to the City within 10 days
of notification that the City elects to complete the Improvements.
In the event the cost to complete the Improvements exceeds the moneys transferred to the
City, City shall notify Lender and Developer in writing of the need of additional funds. The
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 3 of 16
additional funds required to complete the Improvements shall be delivered to the City within 10
business days following notification to Lender and Developer. Failure to deliver the additional
funds shall relieve the City of the obligation to complete the Improvements, in which event City
shall use the Hard Costs funds in its possession to pay the contractor(s) all funds due it/them.
Any remaining undisbursed Hard Costs shall be returned to Lender within a reasonable time.
7. Completion by the Lender. The Lender may, at its discretion, but shall not be
obligated to, undertake to complete the Improvements if there is any default under any Loan
Documents in lieu of requesting the City to complete the Improvements. If the Lender elects to
complete the Improvements, any Hard Costs it expends shall, dollar for dollar, reduce the
Completion Amount.
8. Easements. In the event the City or the Lender undertakes the completion of the
Improvements, the Developer (and to the extent necessary the Lender) grants to the City and the
Lender open access to the Property and shall execute and deliver such temporary easements over
and across the entirety of the Property for the purpose of access and use for the completion of the
construction of the Improvements in accordance with this Agreement. To the extent requested by
the City and the Lender, written temporary construction easements in form acceptable to the City
and the Lender shall be executed by the Developer and filed of record. Nothing in this paragraph
shall reduce any rights of the Lender or obligations of the Developer under the Loan Documents.
9. Lender's Rights. Nothing in this Agreement shall affect any portion of the
Lender's collateral for the Loan or limit or impair the Lender's right to foreclose the same or deal
with the collateral as it elects in accordance with the Loan Documents.
10. Satisfaction of the City Requirements. The City agrees that the assurances and
covenants contained in this Agreement satisfy all requirements of the City with respect to
Developer's performance bond or other financial security in connection with the development of
the Property and the completion of the Improvements that are contained in the CFA or in any
other agreement relating thereto, and the City hereby accepts the assurances and covenants
contained herein in lieu thereof. To the extent the CFA irreconcilably conflicts with this
Agreement, the provisions of this Agreement shall control.
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 4 of 16
11. Termination. This Agreement shall terminate upon the earlier to occur of the
following: (a) acceptance by the City of the Improvements; (b) mutual written agreement of
all of the Parties; or (c)the reduction of the Completion Amount to zero. However, release of the
plat shall be governed by paragraph 12 hereof and termination pursuant to (b) or (c) of this
paragraph 11 shall not require the City to release the plat.
12. Final Plat. The Parties acknowledge and agree that the City shall hold the final
plat of the Property until the Improvements are completed and accepted by the City and all Hard
Costs contractors have been paid, less retainage. Upon acceptance by the City and receipt of
evidence from the Developer showing that all Hard Costs contractors have been paid, including
but not necessarily limited to lien waivers and bills paid affidavits, the City shall within a
reasonable time file the final plat for the Property in the Plat Records of the county where the
Property is located. The purpose of the City retaining the final plat of the Property as provided
herein is to guarantee the Developer's obligations under the CFA are completed.
13. Construction Contracts. Developer agrees to include in each Construction
contract that it enters into for the completion of the Improvements the following:
a.A statement that the City is not holding any security to guarantee any payment for work
performed on the Improvements;
b. A statement that the Property is private property and that same may be subject to
mechanic's and materialman's liens;
c. A requirement that each contractor contracting with the Developer release the City
from any claim that is related to the Property of the Improvements; and
d. A requirement that each contractor contracting with the Developer include in each
subcontract the statements contained in a., b., and c. above.
14. Miscellaneous.
A. Non-Assignment of Agreement. This Agreement may not be assigned by any of the
Parties without the prior written consent of all the other Parties.
B. Notice. Any notice required or permitted to be delivered under this Agreement shall be
deemed received on actual receipt by the appropriate party at the following addresses:
(i) Notice to the City shall be addressed and delivered as follows:
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date:07.01.2015
Page 5 of 16
City of Fort Worth
Planning and Development Department
1000 Throckmorton Street
Fort Worth, Texas 76102
Attention : CFA Division
Janie Morales, Development Manager
Email:Janie.morales@fortworthtexas.gov
Confirmation Number: 817-392-2677
and/or
Attention: CFA Division
Email: cfa@fortworthtexas.gov
Confirmation Number: 817-392-2025
With a copy thereof addressed and delivered as follows:
Douglas W. Black
Office of the City Attorney
City of Fort Worth
1000 Throckmorton Street
Fort Worth,Texas 76102
Confirmation Number: 817-392-7615
(ii) Notice to the Developer shall be addressed and delivered as follows:
Saginaw Watersbend, Ltd.
3045 Lackland Rd.
Fort Worth,Texas 76116
Email: dallen@lacklandholdings.com
(iii) Notice to the Lender shall be addressed and delivered as follows:
SOUTHWEST BANK,ALEC BARRY
2200 W. 7th Street
Fort Worth, Texas 76107
Email: alec.barry@southwestbank.com
A party may change its address for notice upon prior written notice to the other parties pursuant
to the terms hereof.
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 6 of 16
C. Texas Law to Apply. This Agreement shall be construed under and in accordance with
the laws of the State of Texas.
D. Parties Bound. This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective legal representatives, successors and assigns.
E. Legal Construction. In case any one or more of the provisions contained in this
Agreement shall for any reason is held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any other provision
of this Agreement, and this Agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained in this Agreement.
F. Prior Agreements Superseded. This Agreement constitutes the sole and only agreement
of the Parties with respect to the subject matter hereof and supersedes any prior
understandings or written or oral agreements among the Parties concerning the subject
matter hereof, provided, however, that this Agreement shall not supersede, amend or
modify any of the Loan Documents or any portion thereof.
G. Amendment. This Agreement may only be amended by a written instrument executed by
all of the Parties to his Agreement.
H. Headings. The headings that are used in this Agreement are used for reference and
convenience purposes only and do not constitute substantive matters to be considered in
construing the terms and provisions of this Agreement.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 7 of 16
ACCORDINGLY, the City of Fort Worth, Developer and Lender have each caused this
instrument to be executed in quadruplicate in each entity's respective name by its duly
authorized signatories effective as of the date executed by the City's City Manager or his/her
designee.:
CITY OF FORT WORTH: DEVELOPER:
Saginaw Watersbend,Ltd.
/ By: Caddo Mills, Inc.
��SJSCIAY
Assistant City Manager
Name: Tim H. Fleet
Title: President
Date:
Approved as to Forni and Legality: Date:
LENDER:
Southwest Bank
ztck WAa-d A••tic�Gt..c.f�..�.
Assistant City Attorney
ATTEST: ame: A4ee 43 afff 7viaeKd OSbu Yh
Title: Pfe44e*t— S y(�
F0F?T�
M y J. Kayser
City Secretary
C.):
M&C: Jk)r4
Date:
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OFFICIAL RECORD
i' 0 .off CITY SECRETARY
00
City of Fort Worth,Texas et � ti�1� N �'WORTN,T (
Standard Completion Agreement—Lender-FundedCFA
Official
8 o 161 Release Date:07.01.2015 CA
d V
Tim H. Fleet, the Guarantor of the Development Loan, is executing this Completion
Agreement for the sole purpose of acknowledging that advances that are made by the Lender
pursuant to this Completion Agreement shall be deemed to be advances that are made under the
Loan that shall be subject to and covered by the Loan Documents and the Guaranty Agreement
that was executed by Tim H. Fleet.
GUARANTOR
By:
Name: Tim R. Fleet
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 9 of 16
Contract Compliance Manager:
By signing I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
ensuring all performance and reporting requirements.
me o,Employee
Title
❑ This form is N/A as No City Funds are associated with this Contract
Janie Morales /
Printed Name Signature
List of Exhibits to the Completion Agreement
Attachment 1 —Changes to the Standard Completion Agreement
Exhibit A- Legal Description
Exhibit B - Approved Budget
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 10 of 16
ATTACHMENT"1"
Changes to Standard Completion Agreement
None
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 11 of 16
EXHIBIT A
WATERSBEND SOUTH PH.IA LEGAL DESCRIPTION
COMMENCING at a 1/2" rebar found at the southeast corner of the platted terminus of
Castlewood Drive (50' R.O.W.) per the final plat of Fossil Park Estates (Phase 2), an addition to
the City of Fort Worth, Tarrant County, Texas as recorded in Cabinet A, Slide 10403, Plat
Records, Tarrant County, Texas, being the southwest corner of Lot 38, Block 17 of said Fossil
Park Estates (Phase 2);
THENCE along the south line of said Fossil Park Estates (Phase 2) and the north line of said
Saginaw Watersbend tract, as follows:
N 88/50'12" W, along the south line of said Castlewood Drive, a distance of 50.00 feet to
a 1/2" rebar capped Beasley RPLS No. 4050 found at the southwest corner of said
Castlewood Drive, said point lying in the east line of Lot 18, Block 12 of said Fossil Park
Estates (Phase 2);
S 01/09'48" W, along the east line of said Lot 18, Block 12, a distance of 36.62 feet to a
1/2" rebar capped Goodwin &Marshall set (hereafter referred to as 1/2" rebar capped set)
at the southeast corner of said Lot 18, Block 2;
S 89/48'34" W, along the south line of said Block 12, a distance of 821.20 feet to a 1/2"
rebar capped set at the POINT OF BEGINNING of the herein described tract of land;
THENCE departing the south line of said Block 12 of Fossil Park Estates (Phase 2), across said
Saginaw Watersbend tract, as follows:
S 00/05'15" E, a distance of 165.09 feet to a 1/2" rebar capped set;
N 89/54'45" E, a distance of 29.15 feet to a 1/2" rebar capped set;
S 00105'15" E, a distance of 165.00 feet to a 1/2" rebar capped set;
N 89/54'45" E, a distance of 4.90 feet to a 1/2" rebar capped set;
S 00/05'15" E, a distance of 115.00 feet to a 1/2" rebar capped set;
N 89/54'45" E, a distance of 40.96 feet to a 1/2" rebar capped set;
S 00/05'15" E, a distance of 500.89 feet to a 1/2" rebar capped set;
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 12 of 16
N 89/54'45" E, a distance of 665.00 feet to a 1/2" rebar capped set;
N 44/54'45" E, a distance of 14.14 feet to a 1/2" rebar capped set;
S 89/28'13" E, a distance of 50.00 feet to a 1/2" rebar capped set;
S 44/27'43" E, a distance of 14.30 feet to a 1/2" rebar capped set;
S 88/50'12" E, a distance of 105.65 feet to a 1/2" rebar capped set;
S 01/09'48" W, a distance of 505.52 feet to a 1/2" rebar capped set at the beginning of a
non-tangent curve to the left, having a radius point that bears S 49/01'30" W, 350.00 feet;
Northwesterly, along said curve, having a central angle of 13/42'40", an are distance of
83.76 feet, and a chord that bears N 47/49'50" W, 83.56 feet to a 1/2" rebar capped set
the end of said curve;
S 35/18'50" W, radial to said curve, a distance of 165.00 feet to a 1/2" rebar capped set;
S 57/36'19" W, a distance of 223.11 feet to a 1/2" rebar capped set;
N 57/26'08" W, a distance of 162.15 feet to a 1/2" rebar capped set;
N 55/33'40" W, a distance of 243.68 feet to a 1/2" rebar capped set;
N 64/38'43" W, a distance of 364.72 feet to a 1/2" rebar capped set;
N 50/48'24" W, a distance of 96.31 feet to a 1/2" rebar capped set;
N 38/23'12" W, a distance of 112.81 feet to a 1/2" rebar capped set;
N 09/27'44" W, a distance of 48.90 feet to a 1/2" rebar capped set;
N 89/30'59" W, a distance of 161.71 feet to a 1/2" rebar capped set;
N 73/12'51" W, a distance of 115.15 feet to a 1/2" rebar capped set;
S 13/49'08" W, a distance of 50.07 feet to a 1/2" rebar capped set;
N 73/12'51" W, a distance of 228.67 feet to a 1/2" rebar capped set;
N 80/32'03" W, a distance of 94.17 feet to a 1/2" rebar capped set;
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 13 of 16
N 00/08'05" W, a distance of 34.95 feet to a 1/2" rebar capped set;
S 89/51'55" W, a distance of 50.00 feet to a 1/2" rebar capped set;
S 69/12'17" W, a distance of 138.94 feet to a 1/2" rebar capped set;
N 89/58'01" W, at a distance of 11.59 feet passing a 1/2" rebar found at a reentrant corner
of said Saginaw Watersbend tract and the northeast corner of Lot 1R, Block 1 of Smokey
Hill Addition, an addition to the City of Fort Worth, Tarrant County, Texas as recorded
in Cabinet A, Slide 772, PRTCT, continuing along the north line of said Lot 1R, Block 1
and a south line of said Saginaw Watersbend tract, at a called distance of 573.3 feet
passing the northwest corner of said Lot 1R, Block 1 and the northeast corner of a right-
of-way dedication for Wagley Robertson Road as recorded in Cabinet B, Slide 372,
PRTCT, continuing a total distance of 585.06 feet to a railroad spike found in the east
right-of-way line of said Wagley Robertson Road (variable width R.O.W.) at the most
westerly southwest corner of said Saginaw Watersbend tract, from which a 1/2" rebar
found bears S 52/32' W, 0.8 feet;
THENCE N 00/03'41" E, along the east right-of-way line of said Wagley Robertson Road and
the west line of said Saginaw Watersbend tract, a distance of 302.31 feet to a 1/2" rebar capped
set, from which a 1/2" rebar capped Beasley RPLS No. 4050 found at the most westerly
northwest corner of said Saginaw Watersbend tract and the southwest corner of a right-of-way
dedication of said Wagley Robertson Road as recorded in Cabinet A, Slide 7641, PRTCT bears
N 00/03'41" E, 574.29 feet;
THENCE departing the easterly right-of-way line of said Wagley Robertson Road, across said
Saginaw Watersbend tract, as follows:
N 89/51'55" E, a distance of 936.29 feet to a 1/2" rebar capped set;
N 71/01'23" E, a distance of 71.38 feet to a 1/2" rebar capped set;
S 13/49'08" W, a distance of 107.50 feet to a 1/2" rebar capped set;
S 76/10'52" E, a distance of 165.00 feet to a 1/2" rebar capped set;
S 13/49'08" W, a distance of 13.55 feet to a 1/2" rebar capped set;
S 76/10'52" E, a distance of 115.00 feet to a 1/2" rebar capped set;
S 83/43'17" E, a distance of 123.74 feet to a 1/2" rebar capped set;
N 06/45'13" E, a distance of 237.56 feet to a 1/2" rebar capped set;
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date:07.01.2015
Page 14 of 16
N 15/58'35" W, a distance of 175.80 feet to a 1/2" rebar capped set;
N 41/30'17" W, a distance of 475.54 feet to a 1/2" rebar capped set in the south line of
Lot 23X, Block 22 of said Fossil Park Estates (Phase 2) and the north line of said
Saginaw Watersbend tract;
THENCE along the south line of said Fossil Park Estates (Phase 2) and the north line of said
Saginaw Watersbend tract, as follows:
N 89/42'25" E, a distance of 165.57 feet to a 1/2" rebar capped Beasley RPLS No. 4050
found;
N 52/41'35" E, at a distance of 134.28 feet passing a 1/2" rebar capped Beasley RPLS
No. 4050 found at the southwest corner of Fox Hill Drive (50' R.O.W.), continuing a total
distance of 184.28 feet to 1/2" rebar capped Beasley RPLS No. 4050 found at the
southeast corner of said Fox Hill Drive, being the beginning of a curve to the right, curve
radial to said line;
Northwesterly, along the easterly right-of-way line of said Fox Hill Drive and said curve,
having a radius of 175.00 feet, a central angle of 05/49'26", an are distance of 17.79 feet,
and a chord that bears N 34/23'42" W, 17.78 feet to a 1/2" rebar capped Beasley RPLS
No. 4050 found the end of said curve;
N 89/48'34" E, departing the easterly line of said Fox Hill Drive, non-tangent to said
curve, a distance of 282.99 feet to the POINT OF BEGINNING and containing 30.064
acres of land.
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 15 of 16
EXHIBIT B
APPROVED BUDGET
Section I
Water $407,150.15
Sewer $551,450.00
Subtotal $958,600.15
Section II
Interior Streets $1,600,720.45
Storm Drains $626,224.00
Subtotal $2,226,944.45
Section III
Street Lights $80,139.84
Sub-total $80,139.84
TOTAL $3,265,684.44
City of Fort Worth, Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date:07.01.2015
Page 16 of 16