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HomeMy WebLinkAboutContract 47442 CITY SECRETAW Llqqqz- CONTRACT NO. COMPLETION AGREEMENT—LENDER FUNDED This Completion Agreement ("Agreement) is made and entered into by and among the City of Fort Worth ("City"), and Hillwood Residential Services, L.P., a Texas limited partnership ("Developer"), and Finance Partners, LP, a Texas limited partnership ("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 34.858 ,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 ("Property"); and WHEREAS, the Developer intends to develop the Property as an addition to the City through plat FP 14-096 or FS�Nlumber>; and WHEREAS, the Developer and the City have entered into a Community Facilities Agreement relating to the development of Creekwood Addition Phase 5 ("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 and in consideration City of Fort Worth,Texas Standard Completion Agreement—Lender-Funded CFA Official Release Date:07.01.2015 OFFICIAL RECORD Page 1 of 14 CITY SECRETARY FT. WORTH,TX 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 $1,769,959.25, 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 plus thirty (30) days (the "Completion Date"), in accordance with the CFA, the Plans approved City of Fort Worth,Texas Standard Completion Agreement—Lender-Funded CFA Official Release Date: 07.01.2015 Page 2 of 14 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 fimds. The additional funds required to complete the Improvements shall be delivered to the City within 10 City of Fort Worth,Texas Standard Completion Agreement—Lender-Funded CFA Official Release Date:07.01.2015 Page 3 of 14 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. 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 City of Fort Worth,Texas Standard Completion Agreement—Lender-Funded CFA Official Release Date: 07.01.2015 Page 41 of 14 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 Planning and Development Department 1000 Throckmorton Street City of Fort Worth,Texas Standard Completion Agreement—Lender-Funded CFA Official Release Date: 07.01.2015 Page 5 of 14 Fort Worth,Texas 76102 Attention: CFA Division Julie Westerman, Development Manager Email: Julie.Westerman@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: iillwood Residential Services, L.P. 3090 Olive St. Suite 300 Dallas TX, 75219 Attn: Angie Mastrocola Email: ne. iastsc�tia{r.liil3w°c+on� (iii) Notice to the Lender shall be addressed and delivered as follows: Finance Partners, LP '1090 Olive Str .' Suite 3W Dallas,Texas 75219 Attn: Tom Mason Email: tom.mason@hillwood.com 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. City of Fort Worth,Texas Standard Completion Agreement—Lender-Funded CFA Official Release Date: 07.01.2015 Page 6 of 14 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 14 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: i 4 W, HILLWOOD RESIDENTIAL SERVICES, Jesus J 01apa L.P., a Texas limited partnership Assistant City Manager By: Hillwood Services GP, LLC, a Texas limite liability company, its general p er Date: Approved as to Form and Legality: By: Angie Mastrocola, Senior Vice President Douglas W. Black Date: .11P['Q=C - �Is Assistant City Attorney LENDER: ATTEST: -� FINANCE PARTNERS, LP, a Texas limited partnership By: Finance Partners GP, LLC, ary J.Vol A Texas limited liability company, City Secretary F®R r Its general partner X00%0 M&C: By: Date: —! Name: M. Thomas Mason Title: Executive Vice President ao00*0 .. �EX�� City of Fort Worth,Texas Standard Completion Agreement—Lender-Funded OFFICIAL RECORD CFA Official Release Date:07.01.2015 CITY SECRETARY Page 8 of 14 FT.WORTH,TX BORROWER: HILLWOOD RLD, L.P., a Texas limited partnership By: Hillwood Operating, L.P., a Texas limited partnership, its general partner By: Hillwood Services GP, LLC, a Texas limited liability company, its era aVkf By:genG p_�_ Angie Mastrocola, Senior Vice President City of Fort Worth,Texas Standard Completion Agreement—Lender-Funded CFA Official Release Date: 07.01.2015 Page 9 of 14 List of Exhibits to the Completion Agreement Attachment 1 —Changes to the Standard Completion Agreement Exhibit B - Legal Description Exhibit C - Approved Budget City of Fort Worth,Texas Standard Completion Agreement—Lender-Funded CFA Official Release Date: 07.01.2015 Page 10 of 14 ATTACHMENT"1" Changes to Standard Completion Agreement 1) Page 1, Second Paragraph, replace "the Developer" with "Hillwood RLD, L.P., a Texas limited partnership (Borrower")," 2) Page 1, Third Paragraph, replace "the Developer" with `Borrower", 3) Page 1, Fourth Paragraph, after"Whereas" add "Borrower has engaged the Developer to construct the Improvements (hereinafter defined) and", 4) Page 4, Easements, replace "the Developer" with "Borrower" in all three locations, 5) Page 5, Final Plat, after"The Parties" add "and Borrower". After"from the Developer" add "or Lender", 6) Page 9,Add signature block for Borrower, 7) After signatures and before the List of Exhibits to the Completion Agreement, add "Finance Partners, LP, the "Lender" 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. Hillwood RLD, L.P. is executing this Completion Agreement for the sole purpose of acknowledging and agreeing to the provisions of Borrower in Section 8 and Section 12 of this Completion Agreement." City of Fort Worth,Texas Standard Completion Agreement—Lender-Funded CFA Official Release Date: 07.01.2015 Page 11 of 14 8) EXHIBIT A A 34.858 acres parcel or tract of land situated in the James P. Alford Survey, Abstract Number 53, Tarrant County, Texas, and being a portion of those tracts of land conveyed to Hillwood RLD, L.P., Phase 1 and Phase 2 as recorded in Volume 16002, Page 313, Deed Records, Tarrant County, Texas and being more particularly described by metes and bounds as follows: BEGINNING at the Northwest corner of Creekwood Addition an addition to the City of Fort Worth as recorded in Volume A, Slide 11507, Plat Records, Tarrant County, Texas, Said point also being the Northeast corner of said Phase 1 and Phase 2 tract; THENCE along the West line of said Creekwood Addition and the East line of said Phase 1 and Phase 2 tract the following courses: South 00 degrees 19 minutes 15 seconds East a distance of 432.42 feet to a point for corner, said point being at the beginning of a tangent curve to the right whose chord bears South 13 degrees 23 minutes 51 seconds West, 184.98 feet; In a Southwesterly direction along said curve to the right having a central angle of 27 degrees 26 minutes 12 second, a radius of 390.00 feet, an arc length of 186.76 feet to a point for corner; South 27 degrees 06 minutes 57 seconds West a distance of 74.71 feet to a point for corner; South 70 degrees 08 minutes 06 seconds East a distance of 4.55 feet to a point for corner; South 27 degrees 06 minutes 57 seconds West a distance of 133.37 feet to a point for corner; South 62 degrees 53 minutes 16 seconds East a distance of 528.07 feet to a point for corner, the city limits of the City of Fort Worth and the City of Saginaw, said point also being in the Northwest corner of a tract of land described as Creekwood Addition Phase 4 an addition to the City of Saginaw as recorded in County Clerk File Number D214051895, Plat Records, Tarrant County, Texas; THENCE along the Northwesterly line of said Creekwood Addition Phase 4, and the continuing along the East line of said Phase 1 and Phase 2 tract the following courses: South 27 degrees 07 minutes 06 seconds West a distance of 166.41 feet to a point for corner; South 78 degrees 15 minutes 14 seconds West a distance of 303.49 feet to a point for corner; South 62 degrees 52 minutes 05 seconds West a distance of 293.43 feet to a point for corner; City of Fort Worth,Texas Standard Completion Agreement—Lender-Funded CFA Official Release Date: 07.01.2015 Page 12 of 14 South 60 degrees 03 minutes 25 seconds West a distance of 219.41 feet to a point for corner; South 73 degrees 36 minutes 04 seconds West a distance of 151.53 feet to a point for corner; South 84 degrees 52 minutes 54 seconds West a distance of 228.06 feet to a point for corner; North 85 degrees 18 minutes 39 seconds West a distance of 165.59 feet to a point for corner, said point being the West line of said Phase 1 and Phase 2 tract and the East line of the Burlington Northern Santa Fe Railroad (100 foot-right-of-way) line; THENCE North 01 degrees 11 minutes 25 seconds East along the West line of said Phase 1 and Phase 2 tract and the East line of said Burlington Northern Santa Fe Railroad right-of-way a distance of 1537.21 feet said point being the Northwest corner of said Phase 1 and Phase 2 tract; THENCE North 89 degrees 40 minutes 26 seconds departing the East right-of- way line of said Burlington Northern Santa Fe Railroad a distance of 990.83 feet to the POINT OF BEGINNING and containing 34.858 acres of land, more or less. City of Fort Worth,Texas Standard Completion Agreement—Lender-Funded CFA Official Release Date: 07.01.2015 Page 13 of 14 EXHIBIT B APPROVED BUDGET Section I Water W504100 Sewer S390201.25 Subtotal $7223249.25 .Section 'll Interior Streets $081516A0 Storm Drains S 173-794.00 Subtotal $$55300.00 Section III Street Lights $�89 Q,00 Sub-total S I col 7410avv TOTAL $1769959.25 City of Fort Worth,Texas Standard Completion Agreement—Lender-Funded CFA Official Release Date:07.01.2015 Page 14 of 14