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HomeMy WebLinkAboutContract 55294 02/12/2021 CSC No.55294 3:11 pm PERMITTING AGREEMENT FOR PALLADIUM FAIN STREET This Permitting Agreement for Palladium Fain Development ("Agreement')is entered into by and between the City of Fort Worth, a Texas home-rule municipality ("gity'), Palladium Fain Street Ltd., a Texas limited partnership ("Develo-per"), Yuri Kyong Chu ("Seller") and BBLbc, LLC, a Texas limited liability company ("Contractor'), individually, a "P�" and, collectively, the "Parties", effective upon execution by all Parties (the "Effective Date"). WHEREAS, Developer has entered into a contract to purchase approximately 4.94 acres of land described as Lot 2, Block 1, Green Acres Addition No. 2, an addition to the City of Fort Worth, Tarrant County, Texas, according to the map or plat thereof recorded in clerk's File No. D221011087, also described as 1069 Kings Highway (the"Pro ") from Seller for construction of an affordable housing development to be known as Palladium Fain Street(the "Project"); and WHEREAS,Developer intends to obtain a loan for the purchase of the Property which will be insured by the U.S. Department of Housing and Urban Development ("HUD"); and WHEREAS, as a condition of issuing mortgage insurance for Developer's loan, HUD requires that the following events occur prior to Developer's purchase of the Property from Seller (the "Closing"): (i) the Final Plat for the Property, as hereafter defned, must be recorded in the Tarrant County Real Property Records; and(ii) Developer must obtain a building permit, grading permit, and urban forestry permit for the Project from the City (the "Permits"); and WHEREAS, Developer, with Owner's consent and cooperation, has submitted a final plat for the Property, FS-20-157, to the City (the "Final Plat"); and WHEREAS, as a prerequisite for recording the Final Plat, Developer has hired Contractor and Contractor has entered into a Community Facilities Agreement with the City (the "CFA") for construction of infrastructure to serve the Property, City Secretary Contract Number 55150; and WHEREAS, the City has approved the Final Plat and the Final Plat has been recorded in the Tarrant County Real Property Records as instrument number D221011087; and WHEREAS, prerequisites for Contractor to be issued a notice to proceed to construction for the public infrastructure that is the subject of the CFA include, but are not limited to, the issuance of a grading permit for the Project and execution of a Stormwater Facilities Maintenance Agreement for maintenance of stormwater facilities (the "SWFMA"); and WHEREAS, the City has issued a multifamily development permit for the Project; and WHEREAS, a building permit, grading permit, and urban forestry permit are required for the Project (collectively, the "Permits"); and WHEREAS, the City will issue the Permits upon satisfaction of the conditions set out in this Agreement; and OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Permitting Agreement for PalladiumFain Street—Page 1 WHEREAS, the Closing will be conducted by Chicago Title of Texas, LLC (the "Escrow Agent'); and WHEREAS, City and Developer will execute the SWFMA and the Escrow Agent will record the SWFMA in the Real Property Records of Tarrant County after the Closing and Escrow Agent will provide a copy of the recorded SWFMA to the City within five days after Closing; and WHEREAS, Developer has executed an encroachment agreement with the City to allow Developer to construct drainage improvements on the Property within the City's sewer easement on the Property, which agreement will automatically terminate if Closing does not occur on or before September 1, 2021; and WHEREAS, the City is willing to cooperate with Developer to record the Final Plat and to issue the Permits to Developer prior to Closing after satisfaction of certain requirements by Developer as set out below, in order to satisfy HUD requirements, on the condition that, if Closing does not occur on or before September 1, 2021 (i) Developer agrees to apply for the Final Plat to be vacated, at Developer's expense; (ii) the CFA will be terminated, and (iii) the Permits will be automatically revoked, as set out below; and WHEREAS, Seller is signing this Agreement for the sole purposes of(i) agreeing not to remove trees from the Property prior to Closing as further set out in this Agreement and (ii) acknowledging that if the Closing does not occur on or before September 1, 2021, Developer will apply to vacate the Final Plat at no cost to Seller, but with Seller's reasonable cooperation; and WHEREAS, Contractor is signing this Agreement for the sole purpose of acknowledging that if the Closing does not occur on or before September 1, 2021, the Contractor will be required to terminate the CFA in accordance with the terms and conditions of the CFA, and the Contractor shall have no further obligations thereunder after the termination is effective; NOW, THEREFORE, for and in consideration of the above recitals and the mutual covenants and agreements herein contained, the City and Developer agree as follows: SECTION 1 1. The City and Developer will sign the SWFMA and Developer shall deliver the fully executed SWFMA to Escrow Agent on or before February 12, 2021. The Escrow Agent will record the SWFMA in the Real Property Records of Tarrant County after the Closing and Escrow Agent will provide a copy of the recorded SWFMA to the City within five days after the Closing as follows: City of Fort Worth Attn: Laurie Lewis Development Coordination Office City Hall, South Entrance 200 Texas Street Fort Worth, Texas 76102 Permitting Agreement forPalladiumFain Street—Page 2 2. The City will issue the Permits as follows: (a) The City will issue a building permit and a grading permit to Developer on or before February 12, 2021, but only after the SWFMA is executed by City and Developer and the Park Dedication Fees described in this Agreement are paid to the City. Developer has met all requirements for issuance of the building permit and the grading permit, except for issuance of the urban forestry permit and the tree preservation inspection necessary for the issuance of the urban forestry permit. City may revoke the building permit and grading permit if the SWFMA is not recorded in the within five days after the Closing. (b) The City will issue the urban forestry permit to Developer on or before February 12, 2021, but only after the SWFMA is executed by City and Developer. Developer has met all requirements for issuance of the urban forestry permit except for a tree preservation inspection to be conducted by the City. Within five (5) days after Closing, Developer will cause its contractor to fence off and mark the trees to be preserved and contact the City to schedule such inspection. No trees shall be damaged or removed from the property before the City has conducted the tree preservation inspection. 3. Developer must pay ParkDedication Fees in the amount of$37,563.75 to the City before the building permit will be issued by the City. 4. If Closing does not occur on or before September 1, 2021, (i) Developer will apply for the Final Plat to be vacated, at Developer's expense, on or before December 31, 2021; (ii) the Contractor will have to terminate the CFA in accordance with the terms and conditions of the CFA; (iii) the Permits will be automatically revoked on September 1, 2021 without further action by any Party;(iv) any other permits for the project, including but not limited to the multifamily development permit, will be automatically revoked on September 1, 2021 without further action by any Party;and(v) the City will refund the Park Dedication Fees in the amount of$37,563.75 to Developer. 5. The City will not conduct a preconstruction meeting or issue a notice to proceed to construction on the improvements that are the subject of the CFA and Developer or its contractors shall not be authorized to conduct any construction activities, including grading of the property, pursuant to the Permits until the grading permit and SWFMA have been executed,the Closing has occurred,the City has conducted the tree preservation inspection for the urban forestry permit, and the SWFMA has been recorded. Developer shall obtain a notice to proceed to construction from the City before commencing construction pursuant to the CFA. Developer shall obtain the written permission of the City's building official before commencing any grading of the property or commencing any work pursuant to the Permits. 6. Once Developer has commenced with construction of the building pursuant to the building permit, Developer understands that Developer may have to cease construction activities Permitting Agreement forPalladiumFain Street—Page 3 until the Improvements that are the subject of the CFA have been constructed and accepted by the City in order for inspection and testing of private plumbing being installed pursuant to the building permit to occur and in order for water to be available before combustible materials can be constructed pursuant to the building permit. 7. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action arises on the basis of any provision of this Agreement, venue for such action shall he in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. 8. Except as otherwise provided in this Agreement, the terms and provisions of this Agreement may not be modified or amended except upon the written consent of both the City and Developer. 9. By executing this Agreement, each person signing below affirms that he or she is authorized to execute this Agreement. 10. This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. 11. It is agreed that in the event any covenant, condition or provision herein contained is held to be invalid by any court of competent jurisdiction, the invalidity of such covenant, condition or provision shall in no way affect any other covenant, condition or provision, and does not materially prejudice any Party in connection with the rights and obligations contained in the valid covenants, conditions or provisions of this Agreement. 12. This Agreement is 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 13. Notices and deliveries to be provided hereunder shall be sufficient if forwarded to the other Parties by hand delivery or U.S. Postal Service certified mail, postage prepaid, as shown below: To the City: City of Fort Worth Attn: City Manager's Office 200 Texas Street Fort Worth, TX 76102 with a copy to: City of Fort Worth Attn: Rich McCracken, Sr. Asst. City Attorney 200 Texas Street Permitting Agreement forPalladiumFain Street—Page 4 Fort Worth, TX 76102 To Developer: Palladium Fain Street Ltd Attn: Avis F. Chaisson 13455 Noel Road, Suite 400 Dallas, TX 75240 To Seller: Yun Kyong Chu 12700 Connemara Lane Fort Worth TX 76240 To Contractor: BBLbc, LLC 5217 Tennyson Parkway Plano, TX 75024 To Escrow Agent: Chicago Title of Texas,LLC 14755 Preston Road, Suite 600 Dallas, Texas 75254 12. The failure of the City to insist upon the performance of any term or provision of this Agreement or to exercise any right herein conferred shall not be construed as a waiver or relinquishment to any extent of City's right to assert or rely on any such term or right on any future occasion. 13. It is understood that by execution of this Agreement,the City does not waive or surrender any of its governmental powers or immunities. 14. In the event that any clause or provision of this Agreement shall be held to be invalid by any court of competent jurisdiction, the invalidity of such clause or provision shall not affect any of the remaining provisions hereof. 15. City and Developer, and if they so choose, their attorneys, have had the opportunity to review and comment on this document; therefore any rule of contract construction or interpretation that would normally call for the document to be interpreted as against the drafting party shall not apply in interpretation of this Agreement, and each section, portion, and provision of this Agreement shall be construed solely on the basis of the language contained therein, regardless of who authored such language. Permitting Agreement forPalladiumFain Street—Page 5 16. No amendment, modification, or alteration of the terms of this Agreement shall be binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by the City and Developer. 17. The provisions and conditions of this Agreement are solely for the benefit 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. This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but which together will constitute one instrument. 19. This Agreement, including any exhibits attached hereto and any documents incorporated herein, contains the entire understanding and agreement between the Parties as to the matters contained herein. IN WITNESS WHEREOF, the City, Developer, Contractor, and Seller have each executed this Agreement by their duly authorized signatories to be effective on February 12, 2021. City of Fort Worth ✓-tIfa XfflAhdo,4 ' Dana Burghdoff(Fe 12,2021 1 :53 CST) Dana Burghdoff Assistant City Manager Date: 2/12/21 Recommended by: c__� DJ Harrell(Feb12,202113:41 CST) D.J.Harrell Director, Development Services Department Approved as to Form and Legality Richard A.McCracken(Feb 12,202113:51 CST) Richard A. McCracken OFFICIAL RECORD Assistant City Attorney CITY SECRETARY FT.WORTH,TX Permitting Agreement forPalladiumFain Street—Page 6 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. B2 e Scarlett Morales For(Feb 12,202111M CST) Allison Gray Assistant Director, Development Services Department Building Official ATTEST b 0 vtio o ° °o �d City Secretary �0 _ kc EXASaAQ, Date: 02/12/2021 OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Permitting Agreement forPalladiumFain Street—Page 7 DEVELOPER Palladium Fain Street,Ltd., a Texas limited partnership By: Palladium Fain Street GP,LLC a Texas limited liability company Its general partner By: Palladium Fain Street GP Mgr, Inc., a Texas corporation, its co-manager By-Thomas E.Huth(Feb 12,2021 12:52 CST) Thomas E. Huth, President Date: OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Permitting Agreement forPalladium.Fain Street—Page 8 CONTRACTOR BBLbc,LLC a Texas limited liability company NarK I-ear By: Mark Lear(Feb 12,2021 13:03 CST) Mark Lear,Managing Director Date: 02/12/2021 OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Permitting Agreement forPalladiumFain Street—Page 9 SELLER Yun Kyong Chu Date, 2/12/2021 OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Platting and Permitting;Agreement for Palladium Fain Street—Page 8