HomeMy WebLinkAboutContract 37004 CITY SECRETARY -1 D04
CONTRACT NO.
COMPLETION AGREEMENT
This Completion Agreement (hereinafter called the "Agreement")
is made and entered into by and among the City of Fort Worth
(hereinafter called the "City"), LQ Development, LLC ,a Texas
corporation (hereinafter called the "Developer"), and First Horizon
Home Loans, A Division of First Tennessee Bank, N.A. (hereinafter
called the "Lender"), effective as of January 2008 ._ 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 178.372 acres 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 (which tract of real property is hereinafter
called the "Property"; and
WHEREAS, the Developer intends to develop the Property as an
addition to the City through plat FP-008-003 or FS ; and
WHEREAS, the Developer and the City have entered into a
Community Facilities Agreement relating to the development of the
LANDMARK QUEBEC PHASE II (hereinafter called the "CFA"); and
WHEREAS, the City has required certain assurances of the
availability of funds to complete the streets, street signs and lights, and
the water and sewer utilities for the development of the Property
(herein collectively called the "Community Facilities"), 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;, a, „
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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 the Property
(hereinafter collectively called 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 and in consideration of Ten Dollars ($10.00)
and other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. Recitals. The foregoing recitals are true, correct and
complete and constitute the basis for this Agreement and they are
incorporated into this Agreement for all purposes.
2. The Completion Amount. The City and the Developer agree
that the Hard Costs required to complete the Community Facilities in
the aggregate should not exceed the sum of One Million nine
hundred thirty eight thousand six hundred sixty eight and thirty cents
Dollars ($ 1,938,668.30 ), hereinafter called the
"Completion Amount". Notwithstanding the foregoing, it is
acknowledged that the actual costs of completion of the Community
Facilities 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 will
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
con.sSviai..ng ommunity Facilities for the Property (hereinafter
ailed the- -"Lo-�n ') subject to, and in accordance with, the terms,
V
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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 (which term is hereinafter defined) line items
highlighted. The term "Hard Costs" shall mean the actual costs of
construction and installation of the Community Facilities. 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.
To keep the City advised of the Hard Costs, the Developer shall
promptly deliver to the City those portions of all draw requests
delivered to the Lender which contain requests for the payment of Hard
Costs and such draw requests shall itemize Hard Costs in such form and
detail as shall be reasonably acceptable to the Lender and the City.
Upon approval of Lender of any draw request containing requests for
Hard Costs to be advanced to the Developer, the Lender shall give
notice to the City setting forth the amount of any Hard Costs to be
advanced (the "Funding Notice"). The City will be deemed to have
approved the proposed advance of Hard Costs by the Lender, unless it
so notifies in writing Lender that it objects to such advancement of
Hard Costs within three (3) business days of the receipt by the City of
the Funding Notice. If the City objects to such advancements of Hard
Costs by the Lender, t e City will have its own inspector examine and
COMPLETION A
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evaluate the construction; then the Developer and the City shall cause
their respective inspectors or consultants to cooperate and shall use
their best reasonable efforts to settle any dispute over the
appropriateness of any advance of Hard Costs. The Developer
acknowledges that the Lender's obligation to fund advances under the
Loan within a specified time frame shall be deemed waived by the
Developer if the City and the Lender are in dispute with respect to any
requested advance. If any such dispute is not resolved promptly, the
two consultants shall agree within five (5) business days on a qualified
third party to resolve the dispute whose decision shall be final and
binding on all Parties and shall be rendered within five (5) business
days of such consultant's selection. Any delay occasioned by any such
dispute shall extend the Completion Date by such period of time.
4. Completion by the Developer. The Developer agrees to
complete the Community Facilities on or before the date for completion
that is established in the Loan Documents plus thirty (30) days
(hereinafter called the "Completion Date"), in accordance with the
CFA, the Plans that are approved by the Lender and the City and all
documents evidencing or securing the Loan (which documents are
hereinafter collectively called 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 Community
Facilities. 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
aTd` expense p Developer, within 10 days from receipt of Lender's
request, no-1J', 'en er that it will undertake to complete the Community
COMPLETION AGREEMtNT
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Facilities 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 Community Facilities.
If the City does not timely elect to complete the
construction of the Community Facilities, then the Lender may at its
election terminate this Agreement, and at its option, proceed to
complete the Community Facilities, 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 Community
Facilities, 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.
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 Community Facilities.
In the event the cost to complete the Community Facilities
exceeds the moneys transferred to the City, City shall notify Lender
and Developer of the need of additional funds. The additional funds
required to complete the Community Facilities 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 Community Facilities, 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 paid to Lender within a reasonable time.
COMPLETION AdRE T
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7. Completion by the Lender. The Lender may, at its
discretion, but shall not be obligated to, undertake to complete the
Community Facilities if there is any default under any Loan Documents
in lieu of requesting the City to complete the Community Facilities. If
the Lender elects to complete the Community Facilities, 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 Community Facilities, 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
Community Facilities 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 payment and performance
bonds or other requirements for security in connection with the
development of the Property and the completion of the Community
Facilities that are contained in the CFA or in any other agreement
relating---theret-e, and the City hereby accepts the assurances and
covenants contained herein in lieu thereof. To the extent the CFA
COMPLETION AGREEMENT 1
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irreconcilably conflicts with this Agreement, the provisions of this
Agreement shall control.
11. Termination. This Agreement shall terminate upon the
earlier to occur of the following: (a) acceptance by the City of the
Community Facilities; (b) mutual written agreement of all of the
Parties; or (c) the reduction of the Completion Amount to zero.
12. Final Plat. The Parties acknowledge and agree that the City
shall hold the final plat of the Property until the Community Facilities
are completed and accepted by the City and all Hard Costs contractors
have been paid, including retainage. Upon receipt and acceptance by
the City of evidence of substantial completion and the payment by the
Developer of all Hard Costs contractors, the City shall immediately 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 prescribed herein is to guarantee the Developer's
obligations under the CFA.
13. Construction Contracts. Developer agrees to include in
each Construction contract that it enters into for the completion of the
Community Facilities the following:
A. A statement that the City is not holding any security to
guarantee any payment for work performed on the Community
Facilities;
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; and
D. A requirement that each contractor contracting with the
Developer include in each subcontract the statements
contained.in (a), (b) and (c) above.
CO PL -TION AGRF13MENT
Re 1IIP� D der 2005 9
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.•. As.
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
1000 Throckmorton Street
Fort Worth, Texas 76102
Attention: Shadran Scott
TPW, Graduate Engineer
Telephone Number: 817-392-7905
Fax Number: 817-392-8092
Attention: Peggy Chaney,
Water, Sr. Engineering Technician
Telecopy Number: 817-392-8195
Confirmation Number: 817-392-8428
With a copy thereof addressed and delivered as follows:
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
Attention: Amy Ramsey, Esq.
Assistant City Attorney
Telecopy Number: 817-392-8359
Confirmation Number: 817-392-7600
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COMPLETION AGREEMENT
Revised December 2005
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(ii) Notice to the Developer shall be addressed and
delivered as follows:
William E. Stonaker
325 Miron, Suite 110
Southlake, TX 76092
(iii) Notice to the Lender shall be addressed and delivered
as follows: .36-k� DJ •Ut90r->A
IR.S T i�-A av*l Rlb^tq- (-b A-A-L5
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A party may change its address for notice upon prior written
notice to the other parties pursuant to the terms hereof.
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.
COMPLETION AGREEMENT
Revised December 2005
Page 9 of 14 --
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.
Executed by the Parties to be effective as of the date first stated
above.
COMPLETION AGREEMENT
Revised December 2005
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/\ O.
EXECUTED IN QUADRUPLICATE
APPROVED AS T M AND THE CITY OF FORT WORTH
LEGALI �1
B y: yZ B
Name: Name:_ OCOStB
Title: I Title: A8518tant City Man8W
(Name of Developer)
Attested By.
�' By: LQ Development, LLC
Name: William E. Stonaker
�A I �'� Title: Manager
i�I�urty Hcndr' F t{z-ST' ��oR-t �e�t NoN►.Sr L AIUS� P�
Ctty 5CCcctary C1�V�gcA*�O� �l iT Z�,l�tAf�S�y�t3�llL N,•�} .
(Namem
By:
=NOM&CREQUIRED Nam S8 DGD
Title- '�-SoAl _ Vo, TUA1�5A1j
LQ Development, LLC., 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 which shall be subject to and covered by the Loan
Documents and the Guaranty Agreement that was executed by LQ
Development, LLC.
Developer: LQ Development, LLC
B y: William E.E. Stonaker
1„f, 4 ,,1
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COMPLETION AGREEMENT
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�►
COMPLETION AGREEMENT — Page 10
LIST OF EXHIBITS TO THE COMPLETION AGREEMENT
BY AND AMONG THE CITY OF FORT WORTH,
LQ Development, LLC. and
..................
EXHIBIT A - LEGAL DESCRIPTION
EXHIBIT B - APPROVED BUDGET
COMPLETION AGREEMENT
Revised December 2005
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i` .0►
EXHIBIT A
FIELD NOTE DESCRIPTION
STATE OF TEXAS
COUNTY OF TARRANT
WHEREAS NW Tarrant Growth Partners, L.P. is the owner of a tract of land situated in the Jose Maria Basquis
Survey, Abstract No. 85 of Tarrant County, Texas also being all of Tracts One and Two described in a deed to
NW Tarrant Growth Partners, L.P., recorded in Volume 12811, Page 51 of Deed Records of Tarrant County,
Texas (DRTCT), also being more particularly described as follows:
BEGINNING at a concrete monument found for corner in the intersection of the northwesterly right of way line of
Loop 820 NW (variable right of way), and the southeasterly boundary of City of Lake Worth and also the westerly
boundary of City of Fort Worth, said monument also being the beginning of a line having a length of 2774.15 feet
and bearing of South 00 degrees 29 minutes 57 seconds West to a 1 inch iron rod found for corner;
THENCE South 89 degrees 32 minutes 33 seconds East a distance of 182.05 feet to 1/2 inch iron rod found for
corner;
THENCE North 00 degrees 40 minutes 15 seconds East a distance of 882.89 feet to 1/2 inch iron rod found for
corner;
THENCE North 89 degrees 35 minutes 47 seconds East a distance of 1287.57 feet, along the southerly boundary
of Lake Worth ISD, Volume 4191, Page 355, D.R.T.C.T. to a point for corner;
THENCE North 89 degrees 33 minutes 41 seconds East a distance of 250.04 feet, along the southwesterly
boundary of MJCH CORP., Volume 13119, Page 117, D.R.T.C.T to 1/2 inch iron rod found for corner;
THENCE South 05 degrees 40 minutes 38 seconds West a distance of 423.26 feet, along the southwesterly
boundary of MJCH CORP., Volume 13119, Page 117, D.R.T.C.T to 5/8 inch iron rod found for corner;
THENCE the beginning of a curve to the right having a radius of 1303.06 feet, a chord bearing of North 67
degrees 45 minutes 10 seconds West, a chord length of 890.65 feet, along said curve through a central angle of
39 degrees 09 minutes 43 seconds and an arc length of 873.41 feet to a 1/2 inch iron rod found for corner;
THENCE the beginning of a curve to the right having a radius of 1303.06 feet, a chord bearing of North 45
degrees 09 minutes 11 seconds West, a chord length of 137.25 feet, along said curve through a central angle of 6
degrees 02 minutes 16 seconds and an arc length of 137.32 feet to a 1/2 inch iron rod found for corner;
THENCE the beginning of a curve to the right having a radius of 864.13 feet, a chord bearing of South 51 degrees
38 minutes 14 seconds East, a chord length of 285.34 feet, along said curve through a central angle of 19
degrees 00 minutes 23 seconds and an arc length of 286.65 feet to a 5/8 inch iron rod found for corner;
THENCE North 61 degrees 07 minutes 12 seconds West a distance of 107.03 feet, along the northerly boundary
of Lott, Block 3 to a 1/2 inch iron rod found for corner;
THENCE the beginning of a curve to the right having a radius of 891.20 feet, a chord bearing of South 67 degrees
55 minutes 45 seconds East, a chord length of 210.33 feet, along said curve through a central angle of 13
degrees 33 minutes 13 seconds and an arc length of 210.82 feet to a 1/2 inch iron rod found for corner;
THENCE North 32 degrees 46 minutes 49 seconds West a distance of 14.86 feet, along the northerly boundary of
Lott Block 3 to a 1 9 -iron rod found for corner;
9
it Amok
THENCE North 09 degrees 29 minutes 53 seconds East a distance of 126.86 feet, along the easterly boundary of
Lott, Block 3 to a 1/2 inch iron rod found for corner;
THENCE the beginning of a curve to the right having a radius of 662.09 feet, a chord bearing of North 23 degrees
01 minutes 31 seconds East, a chord length of 280.69 feet, along said curve through a central angle of 24
degrees 28 minutes 34 seconds and an arc length of 282.84 feet to a 112 inch iron rod found for corner;
THENCE North 36 degrees 33 minutes 10 seconds East a distance of 181.29 feet, along the easterly boundary of
Lott, Block 3 to a 1/2 inch iron rod found for corner;
THENCE the beginning of a curve to the right having a radius of 431.00 feet, a chord bearing of North 48 degrees
29 minutes 011 seconds East, a chord length of 178.20 feet, along said curve through a central angle of 23
degrees 51 minutes 41 seconds and an arc length of 179.49 feet to a 1/2 inch iron rod found for corner;
THENCE North 60 degrees 24 minutes 51 seconds East a distance of 535.69 feet, along the southerly boundary
of Lot2, Block 3 to a 1/2 inch iron rod found for corner;
THENCE the beginning of a curve to the right having a radius of 1000 feet, a chord bearing of North 66 degrees
13 minutes 56 seconds East, along said curve through a central angle of 11 degrees 38 minutes 09 seconds and
an chord length of 202.73 feet along the southerly boundary of Lot3, Block 3 to a 1/2 inch iron rod found for
corner;
THENCE South 30 degrees 17 minutes 04 seconds East a distance of 565.07 feet, along the westerly boundary
of Lott, Block 1 to a 112 inch iron rod found for corner;
THENCE South 15 degrees 22 minutes 20 seconds West a distance of 13.98 feet, along the easterly boundary of
Lott, Block 2 to a 1/2 inch iron rod found for corner;
THENCE the beginning of a curve to the right having a radius of 5499.58 feet, a chord bearing of North 64
degrees 49 minutes 21 seconds East, along said curve through a central angle of 07 degrees 18 minutes 38
seconds and an chord length of 701.23 feet, along the northerly right of way of of loop 820 to a 3/4 inch iron rod;
THENCE the beginning of a curve to the right having a radius of 5499.58 feet, a chord bearing of North 67
degrees 17 minutes 49 seconds East, along said curve through a central angle of 12 degrees 15 minutes 34
seconds and an arc length of 1174.48 feet along the northerly right of way of of loop 820 to a 3/4 inch iron rod;
THENCE the beginning of a curve to the right having a radius of 1402.40 feet, a chord bearing of North 78
degrees 59 minutes 53 seconds East, along said curve through a central angle of 11 degrees 16 minutes 42
seconds and an arc length of 275.61 feet along the northerly right of way of of loop 820 to a Conc. Monument
Found;
THENCE North 84 degrees 33 minutes 27 seconds West a distance of 175.85 feet, along the northerly right of
way of of loop 820 to the Conc. Monument found at the POINT OF BEGRIMING.
CONTAINING within these metes and bounds 178.372 acres or 6,986,011 square feet of land more or less.
BASIS OF BEARINGS: Bearings cited here in are based on a Boundary&Topographic Survey Map under the
supervision of James L. Brittain ( Registered Professional Land Surveyor)the November 9, 2004.
EXHIBIT B
Section I
Water $ 202,033.30
Sewer 42,538.00
Sub-total $ 244,571.30
Section II
Interior Streets $ 1,025,484.00
Storm Drains 668,613.00
Sub-total $ 1,694,097.00
TOTAL $ 1,938,668.30
COMPLETION AGREEMENT
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