HomeMy WebLinkAboutContract 47743 CITY SECRUAR1(//,,r
CONTRACT NO. '7 7
COMPLETION AGREEMENT—LENDER FUNDED
This Completion Agreement ("Agreement) is made and entered into by and among the
City of Fort Worth ("City"), and PB Ventana 1, LLC, a Texas Limited Liability Corporation
("Developer"), and Ciera 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 52,104 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 015-119 or FS NA- ; and
WHEREAS, the Developer and the City have entered into a Community Facilities
Agreement relating to the development of Ventana Phase 1"("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 R �t
CFA Official Release Date: 07.01.2015
Page 1 of 17 FOFFICIALRECORDRETARY
TH,TX �tIYY ,
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 two million
nine hundred fifty one thousand one hundred fifty seven and 10/100 Dollars ($2951157.10),
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
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date:07.01.2015
Page 2 of 17
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 b the he 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 17
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 17
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 5of17
City of Fort Worth
Planning and Development Department
1000 Throckmorton Street
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:
D e-ekO& A. Kc-Czack m
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:
PB Ventana 1, LLC
4145 Travis Street, Suite 202
Dallas,TX 75204
Email: peter@pmbinv.com
(iii) Notice to the Lender shall be addressed and delivered as follows:
Ciera Bank
1501 Summit Avenue
Fort Worth, TX 76102
Email: justin.cowart@cierabank.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 17
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. mal 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 17
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:
Jesus J Chapa Name
Assistant City Manager Title: President of PB Ventana Manager,
LLC,the General Partner of PB Ventana 1,
_ LLC
Date: � �-
Approved as to Form and Legality: Date: 4'ri feto 14
LENDER:
12.'ctwa A. rucGct c.W.4
Assistant City Attorney S& lie J
Na e: Justin Cowart
ATTEST: T' le: Senior Vice President
®F F
V
fMaly J. er $
City Se ary
00
M&C: 0,410,
Date:
fog, N/i4
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded OFFICIAL RECORD
CFA Official Release Date: 07.01.2015
Page 8 of 17 CITY SECRETARY
FT.WORTH,TX
PB Long Term Hold 1 LP, 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 E. Peter Pincoffs, III.
GUARANTOR
By: �- ?-,:u
Name: E. Peter Pincoffs, III
Title: President of PB Managing Member 1,.LLC,
the
General Partner of PB Long Term Hold 1, LP
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 9 of 17
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 17
ATTACHMENT "1"
Changes to Standard Completion Agreement
Nie;
City of Fort Worth, Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 11 of 17
EXHIBIT A
BEING THAT CERTAIN TRACT OF LAND SITUATED IN THE E. TAYLOR SURVEY,
ABSTRACT NUMBER 1560, THE D. FINLEY SURVEY, ABSTRACT NUMBER 1900, AND
THE S.A. & M.G. R.R. CO. SURVEY,ABSTRACT NUMBER 1479, CITY OF FORT WORTH,
TARRANT COUNTY, TEXAS, AND BEING A PORTION OF THAT TRACT OF LAND
DESCRIBED BY DEED TO PB VENTANA 1, LLC AS RECORDED IN INSTRUMENT
NUMBER D215129625, COUNTY RECORDS, TARRANT COUNTY, TEXAS, AND BEING
MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING AT A 1/2 INCH IRON ROD WITH A RED PLASTIC CAP FOUND AT THE
NORTHEAST CORNER OF SAID PB VENTANA 1 TRACT, BEING THE SOUTHEAST
CORNER OF THAT TRACT OF LAND DESCRIBED BY DEED TO IONA LAND L.P.,
RECORDED IN INSTRUMENT NUMBER D203145633, SAID COUNTY RECORDS, AND
BEING IN THE WEST LINE OF THAT TRACT OF LAND DESCRIBED BY DEED TO THE
BENBROOK WATER & SEWER AUTHORITY RECORDED IN INSTRUMENT NUMBER
D198137822, SAID COUNTY RECORDS;
THENCE S 00021'49"E, 1294.53 FEET, WITH THE EAST LINE OF SAID PB VENTANA 1
TRACT AND SAID WEST LINE OF SAID BENBROOK WATER & SEWER AUTHORITY
TRACT AND THE WEST LINE OF THAT TRACT OF LAND DESCRIBED BY DEED TO SJ
ROLLING HILLS DEVELOPMENT, LP RECORDED IN INSTRUMENT NUMBER
D203176403, SAID COUNTY RECORDS;
THENCE DEPARTING SAID EAST LINE OVER AND ACROSS SAID PB VENTANA 1
TRACT THE FOLLOWING COURSES AND DISTANCES:
S 89037'04"W, 85.81 FEET;
S 00°21'49"E, 404.95 FEET;
City of Fort Worth, Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 12 of 17
S 89°37'04"W, 165.58 FEET;
S 75°45'06"W, 92.88 FEET;
S 54-13'09"W, 84.53 FEET;
N 34°34'04"W, 20.86 FEET, TO THE BEGINNING OF A CURVE TO THE LEFT;
WITH SAID CURVE TO THE LEFT, AN ARC DISTANCE OF 9.90 FEET, THROUGH A
CENTRAL ANGLE OF 03014'33", HAVING A RADIUS OF 175.00 FEET, THE LONG
CHORD WHICH BEARS
N 36°11'20"W, 9.90 FEET;
N 37°48'37"W, 74.78 FEET;
S 52-11'23"W, 170.00 FEET;
N 37°48'37"W, 200.00 FEET;
N 38°53'42"W, 105.98 FEET;
N 51°05'48"E, 45.11 FEET;
N 38°54'12"W, 180.00 FEET;
N 51-05'48"E, 12.96 FEET, TO THE BEGINNING OF A CURVE TO THE LEFT;
City of Fort Worth, Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 13 of 17
WITH SAID CURVE TO THE LEFT, AN ARC DISTANCE OF 209.99 FEET, THROUGH A
CENTRAL ANGLE OF 23035'28", HAVING A RADIUS OF 510.00 FEET, THE LONG
CHORD WHICH BEARS
N 39°18'06"E, 208.51 FEET,
N 62029'40"W, 80.00 FEET, TO THE BEGINNING OF A NON-TANGENT CURVE TO THE
RIGHT;
WITH SAID NON-TANGENT CURVE TO THE RIGHT, AN ARC DISTANCE OF 177.05
FEET, THROUGH A CENTRAL ANGLE OF 23°35'28", HAVING A RADIUS OF 430.00
FEET, THE LONG CHORD WHICH BEARS S 39018'07"W, 175.80 FEET, TO A 5/8 IRON
ROD WITH PLASTIC CAP STAMPED "PELOTON" SET;
S 51-05'48"W, 173.43 FEET, TO THE BEGINNING OF A CURVE TO THE RIGHT;
WITH SAID CURVE TO THE RIGHT, AN ARC DISTANCE OF 24.98 FEET, THROUGH A
CENTRAL ANGLE OF 07009'25", HAVING A RADIUS OF 200.00 FEET, THE LONG
CHORD WHICH BEARS
S 54040'30"W, 24.97 FEET;
S 58°15'13"W, 55.25 FEET, TO THE BEGINNING OF A CURVE TO THE LEFT;
WITH SAID CURVE TO THE LEFT, AN ARC DISTANCE OF 24.98 FEET, THROUGH A
CENTRAL ANGLE OF 07009'25", HAVING A RADIUS OF 200.00 FEET, THE LONG
CHORD WHICH BEARS
S 54040'30"W, 24.97 FEET, TO A 5/8 IRON ROD WITH PLASTIC CAP STAMPED
"PELOTON" SET;
S 51005'48"W, 260.70 FEET, TO THE BEGINNING OF A CURVE TO THE RIGHT;
City of Fort Worth, Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 14 of 17
WITH SAID CURVE TO THE RIGHT, AN ARC DISTANCE OF 88.79 FEET, THROUGH A
CENTRAL ANGLE OF 12°43'06", HAVING A RADIUS OF 400.00 FEET, THE LONG
CHORD WHICH BEARS
S 57-27'21"W, 88.61 FEET;
N 00°22'57"W, 553.21 FEET;
S 84°41'28"E, 20.17 FEET;
N 89°37'03"E, 144.90 FEET;
N 00°2257"W, 492.00 FEET;
89°37'03"W, 295.00 FEET;
N 00°22'57"W, 180.00 FEET;
S 89037'03"W, 115.04 FEET;
N 03046'53"W, 454.99 FEET TO THE NORTH LINE OF AFOREMENTIONED PB VENTANA
1 TRACT,
BEING THE SOUTH LINE OF AFOREMENTIONED IONA LAND TRACT;
THENCE N 89025'50"E, 920.91 FEET, TO THE BEGINNING OF A NON-TANGENT CURVE
TO THE RIGHT;
THENCE WITH SAID NON-TANGENT CURVE TO THE RIGHT, AN ARC DISTANCE OF
31.47 FEET, THROUGH A CENTRAL ANGLE OF 22032'27", HAVING A RADIUS OF 80.00
FEET, THE LONG CHORD WHICH BEARS
S 11°39'09"E, 3 1.2 7 FEET;
City of Fort Worth, Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 15 of 17
THENCE S 00022'55"E, 12.53 FEET;
THENCE N 89037'04"E, 82.63 FEET, TO THE BEGINNING OF A NON-TANGENT CURVE
TO THE RIGHT;
THENCE WITH SAID NON-TANGENT CURVE TO THE RIGHT, AN ARC DISTANCE OF
45.33 FEET, THROUGH A CENTRAL ANGLE OF 12059'10", HAVING A RADIUS OF 200.00
FEET, THE LONG CHORD WHICH BEARS
N 15024'40"E, 45.23 FEET, TO THE AFOREMENTIONED NORTH LINE OF SAID PB
VENTANA 1 TRACT AND THE SOUTH LINE OF SAID IONA LAND TRACT;
THENCE N 89025'50"E, 665.88 FEET, WITH SAID COMMON LINE TO THE POINT OF
BEGINNING AND CONTAINING 2,269,638 SQUARE FEET OR 52.104 ACRES OF LAND
MORE OR LESS.
City of Fort Worth, Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 16 of 17
EXHIBIT B
APPROVED BUDGET
Section I
Water $667736.25
Sewer $614983.00
Subtotal $1282719.25
Section I1
Interior Streets $1145.60725
Storm Drains $358056.00
Subtotal $1503663.25
Section III
Street Lights $164774.0
Sub-total $164774.60
TOTAL $2951157.10
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date:07.01.2015
Page 17 of 17