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HomeMy WebLinkAboutContract 45225 (2)CITY SECRETARY CONTRACT NO. ti jZ1) COMPLETION AGREEMENT This Completion Agreement ("Agreement) is made and entered into by and among the City of Fort Worth ("City"), and M & C Development, Ltd., a Texas Limited Partnership ("Developer"), andOmni American Bank ("Lender"), effective as of November 25, 2013. 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 23.1 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-013-032 or FS____; and WHEREAS, the Developer and the City have entered into a Community Facilities Agreement relating to the development of Marine Creek Ranch, Section 7 (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; 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 (hereinafter collectively called the "Plans"); and WHEREAS, the Parties desire to set forth the terms and conditions of such accommodations as are described above. t4tIV'rj TIEC 2613 RECEIVED DEC i 7 2015 • • OFFICIAL RECORD CITY SECRETAffy NOW THEREFORh, 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 Eight Hundred Nineteen Thousand Three Hundred Sixty Eight and 49/100's Dollars ($1,819,368.49), 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. Adiustments 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 Community Facilities 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 (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 Page 2 of 12 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 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 and expense of the Developer within 10 days from receipt of Lender's request, notify Lender that it will undertake to complete the Community Facilities and the City shall then commence, pursue, and complete the Community 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 Page 3 of 12 Agreement, or at its option proceed to complete the Community Facilities, 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 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 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 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 in writing 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 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 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 Page 4 of 12 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 o ther 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 thereto, and the City hereby accepts the assurances and covenants contained herein in lieu thereof. To the e xtent the CFA irreconcilably conflicts with this Agreement, the provisions o f this Agreement shall control. 11. Termination. This Agreement shall terminate upon the earlier to o ccur 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. 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 Community Facilities are completed and accepted by the City and all Hard Costs contractors have been Page 5 of 12 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 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. 14. Miscellaneous. A. Non-Assienment 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 Planning and Development Department 1000 Throckmorton Street Fort Worth, Texas 76102 Page 6 of 12 and/or Attention• CFA Division David Schroeder, Development Manager Email: David.Schroeder@fortworthgov.org Confirmation Number: 817-392-2239 Attention: CFA Division Jana Knight, Administrative Assistant Email: Jana.Knight@fortworthgov.org 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: 817-392-7607 (ii) Notice to the Developer shall be addressed and delivered as follows: M & C Development, Ltd. Attn: Randy Lockhart 3825 Camp Bowie Blvd. Fort Worth, TX 76107 (iii) Notice to the Lender shall be addressed and delivered as follows: Omni American Bank 1320 S. University Dr., Suite 900, Fort Worth, Texas 76107 Attn• Mark Cundiff, Sr. Vice President Email: Mark.Cundiff@omniamerican.com Page 7 of 12 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. 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) Page 8 of 12 Executed IN QUADRUPLICATE by the Parties hereto: CITY OF FORT WORTH: Fernando Costa Assistant City Manager Date: /2/11/3 APPROVED AS TO FORM: Dou Black Assistant City Attorney ATTEST: Lary J. Kays City Secretary M&C: Date: DEVELOPER: ame: /d/p1 c4' ttc, rie Title: 6-' .v Date: // --j, it 1 LENDER: ame: tau lO'C,nJij Title:Vitt;fl,/esiloir M & C Development, Ltd, 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 Guarantor. • Page 9 of 12 OFFICIAL RECORD c(I'iiv SECRETARY �i'. WORTH, TX LIST OF EXHIBITS TO THE COMPLETION AGREEMENT EXHIBIT A - EXHIBIT B - LEGAL DESCRIPTION APPROVED BUDGET Page 10 of 12 EXHIBIT A Page II of 12 LEGAL DESCRIPTION BEING a 23.107 acre tract of land located in the Joseph Boman Survey, Abstract No. 79, and the Alexander F. Albright Survey, Abstract 1849 in the City of Fort Worth, Tarrant County, Texas, and being a portion of a called 964.473 acre tract of land as described in the Warranty Deed to Hayco Realty, Ltd., a Texas Limited Partnership filed for record in Volume 14192 Page 644, Deed Records, Tarrant County, Texas (DRTCT), said 23.107 acre tract of land being more particularly described as follows: BEGINNING at a 1/2 inch capped iron rod found stamped "JBI' for the northeast corner of Lot 39, Block L Marine Creek Ranch, an addition to the City of Fort Worth, Tarrant County, Texas, according to the plat recorded in Cabinet A, Slide 12801, Plat Records, Tarrant County, Texas (PRTCT) said point being on the south line of an Enserch Corporation pipeline easement, filed for record in Volume 7094, Page 908, DRTCT; THENCE South 79 degrees 08 minutes 06 seconds East, along said south line, a distance of 1050.22 feet, to a 5/8 inch capped iron rod set stamped 'Mycoskie McInnis", being at the beginning of a non -tangent curve to the left having a radius of 1170.00 feet; THENCE along said non -tangent curve to the left, and in a northerly direction, through a central angle of 12 degrees 07 minutes 39 seconds, an arc length of 247 65 feet, and having a long chord which bears North 20 degrees 45 minutes 35 seconds West, a chord length of 247.19 feet, to a 5/8 inch capped iron rod set stamped "Mycoskie McInnis", being at the beginning of a reverse curve to the right having a radius of 1230 00 feet; THENCE along said reverse curve to the right, and in a northerly direction, through a central angle of 26 degrees 26 minutes 16 seconds, an arc length of 567.56 feet, and having a long chord which bears North 13 degrees 36 minutes 16 seconds West, a chord length of 562.53 feet, to a 5/8 inch capped iron rod set stamped "Mycoskie McInnis"; THENCE North 00 degrees 23 minutes 08 seconds West, a distance of 478.10 feet, to a 5/8 inch capped iron rod set stamped "Mycoskie McInnis" for the southeast corner of Lot 1, Block 1, Eagle Mountain — Saginaw Elementary School No. 13 Addition, an addition to the City of Fort Worth Tarrant County, Texas according to the plat recorded in Cabinet A, Slide 11779 PRTCT and being the southwest corner of existing Crystal Lake Drive, a 100.00 right-of-way width; THENCE North 89 degrees 36 minutes 52 seconds East along the south line of said Crystal Lake Drive, a distance of 100 00 feet, to a 5/8 inch capped iron rod set stamped "Mycoskie McInnis"; THENCE South 00 degrees 20 minutes 32 seconds East, a distance of 24.93 feet, to a 5/8 inch capped iron rod set stamped "Mycoskie McInnis"; THENCE South 16 degrees 06 minutes 21 seconds West a distance of 9.84 feet, to a 5/8 inch capped iron rod set stamped "Mycoskie McInnis", being the westernmost southwest corner of a called 20.054 acre tract of land as described in the Special Warranty Deed to the City of Fort Worth Texas, filed for record in County Clerk's Instrument No. D209019170, Official Public Records Tarrant County, Texas (OPRTCT); THENCE South 19 degrees 53 minutes 43 seconds West, over and across said called 964.473 acre tract of land, a distance of 107.29 feet, to a 5/8 inch capped iron rod set stamped "Mycoskie McInnis' ; THENCE South 00 degrees 23 minutes 08 seconds East, a distance of 343.10 feet, to a 5/8 inch capped iron rod set stamped 'Mycoskie McInnis", being at the beginning of a curve to the left having a radius of 1170.00 feet THENCE along said curve to the left, and in a southerly direction, through a central angle of 26 degrees 26 minutes 16 seconds an arc length of 539.87 feet, and having a long chord which bears South 13 degrees 36 minutes 16 seconds East, a chord length of 535.09 feet, to a 5/8 inch capped iron rod set stamped "Mycoskie McInnis ', being at the beginning of a reverse curve to the right having a radius of 1230.00 feet; THENCE along said reverse curve to the right, and in a southerly direction, through a central angle of 48 degrees 30 minutes 58 seconds, an arc length of 1041 52 feet, and having a long chord which bears South 02 degrees 33 minutes 55 seconds East, a chord length of 1010.68 feet, to a 5/8 inch capped iron rod set stamped "Mycoskie McInnis", being at the beginning of a non - tangent curve to the left having a radius of 720.00 feet; THENCE along said non -tangent curve to the left, and in a westerly direction, through a central angle of 34 degrees 31 minutes 34 seconds, an arc length of 433.87 feet, and having a long chord which bears North 85 degrees 19 minutes 46 seconds West, a chord length of 427.33 feet, to a 5/8 inch capped iron rod set stamped "Mycoskie McInnis", THENCE South 77 degrees 24 minutes 27 seconds West, a distance of 462.11 feet, to a 5/8 inch capped iron rod set stamped "Mycoskie McInnis", being at the beginning of a non -tangent curve to the right having a radius of 795.00 feet; THENCE along said non -tangent curve to the right, and in a southwesterly direction, through a central angle of 2 degrees 43 minutes 10 seconds, an arc length of 37.73 feet and having a long chord which bears South 78 degrees 45 minutes 51 seconds West, a chord length of 37.73 feet, to a 5/8 inch capped iron rod set stamped "Mycoskie McInnis", being on the east line of said Marine Creek Ranch* THENCE along said east line the following calls: North 09 degrees 52 minutes 22 seconds West, a distance of 60.00 feet, to a 5/8 inch capped iron rod set stamped "Mycoskie McInnis" being at the beginning of a non - tangent curve to the right having a radius of 735.00 feet; Along said non -tangent curve to the right, and in a westerly direction, through a central angle of 2 degrees 30 minutes 29 seconds, an arc length of 32 17 feet, and having a long chord which bears South 81 degrees 22 minutes 40 seconds West, a chord length of 32.17 feet, to a 5/8 inch capped iron rod set stamped "Mycoskie McInnis"; North 05 degrees 15 minutes 15 seconds West, a distance of 154.32 feet, to a 1/2 inch capped iron rod found stamped "JBI", being at the beginning of a non -tangent curve to the left having a radius of 415.14 feet; Along said non -tangent curve to the left, and in a northerly direction, through a central angle of 15 degrees 31 minutes 52 seconds, an arc length of 112.53 feet, and having a long chord which bears North 13 degrees 02 minutes 39 seconds West, a chord length of 112.19 feet, to a 1/2 inch capped iron rod found stamped "JBI"; North 20 degrees 47 minutes 47 seconds West, a distance of 245.68 feet, to a 5/8 inch capped iron rod set stamped "Mycoskie McInnis", being the northeast corner of Lot 46, of said Block L Marine Creek Ranch North 01 degrees 39 minutes 59 seconds West, a distance of 157.72 feet, to a 60d nail found with shiner, being at the beginning of a non -tangent curve to the right having a radius of 665 00 feet; Along said non -tangent curve to the right, and in a northerly direction through a central angle of 12 degrees 30 minutes 32 seconds, an arc length of 145 18 feet, and having a long chord which bears North 04 degrees 33 minutes 14 seconds East, a chord length of 144.89 feet, to a 1/2 inch capped iron rod found stamped "JBI"; North 10 degrees 49 minutes 29 seconds East, a distance of 176.85 feet, to the POINT OF BEGINNING and containing 23.107 acres (1 006,550 square feet) of land, more or less. EXHIBIT B Page 12 of 12 BUDGET A. Water and Sewer Construction 1. Water Construction $ 343,642.20 2. Sewer Construction $ 172,694.40 Water and Sewer Construction Total $ 516,336.60 B. TPW Construction 1. Street $ 960,747.00 2. Storm Drain $ 256,120.00 3. Street Lights Installed by Developer $ 86,164.89 TPW Construction Cost Total $ 1,303,031.89 Total Construction Cost (excluding fees) S 1,819,368.49