HomeMy WebLinkAboutContract 48421 COMPLETION AGREEMENT—LENDER FUNDED
This Completion Agreement("Agreement)is made and entered into by and among the City
of Fort Worth("City"), and BARHAM&HARRIS DEVELOPMENT ONE, L.P., a Texas limited
partnership ("Developer"), and SOUTHWEST 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 20.38 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-15-105; and
WHEREAS, the Developer and the City have entered into a Community Facilities
Agreement relating to the development of PARKVIEW HILLS 5C ("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.
City of Fort Worth,Texas OFFICIAL RECORD
Standard Completion Agreement—Lender-Funded
CFA official Release bate: 07.01.2015y 22 r��16 CITY SECRETARY
Page 1 of 16 X10 �t;::�`,� FT.woRTH,TX
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 Improvements in the aggregate should not exceed the sum of ONE
MILLION FOUR HUNDRED SIXTY-ONE THOUSAND FOUR HUNDRED THIRTY-SEVEN
Dollars ($1,461,437.00), 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.
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 2 of 16
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 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.
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 3 of 16
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
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
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 4 of 16
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
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.
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 5 of 16
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
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:
BARHAM &HARRIS DEVELOPMENT ONE, L.P.
600 SUMMIT AVE
FORT WORTH, TEXAS 76102
Email: rhb@barhaminterests.com
(iii) Notice to the Lender shall be addressed and delivered as follows:
SOUTHWEST BANK
4809 CAMP BOWIE BLVD.
FORT WORTH, TEXAS 76107
Email: Joy.Norton@southwestbank.com
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 6 of 16
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)
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 7 of 16
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:
BARHAM &HARRIS DEVELOPMENT
ONE, L.P.
WBY. BARHAM&HARRIS
P
Assistant City Manage 1 MANAGEMENT,LLC, ITS GENERAL
PARTNER
BY: BARHAM INTERESTS, INC., ITS
Date: I I I I L A R
T
Approved as to Form and Legality:
a e: Robert H. Barham
Title: President
Assistant City Attorney L��� Date:
ATTEST:
LENDER:
OR SOUTHWEST BANK
ary J. a el ®� 0000
City Secretary S.oB`� � 0
M&C: N14 S
Date: $ N Norto
'ffa,
YL9S N� oftom°pO e: Vice President
City of Fort Worth,Texas OFFICIAL RECORD
Standard Completion Agreement—Lender-Funded CITY SECRETARY
CFA Official Release Date: 07.01.2015 FT.WORTH,TX
Page 8 of 16
Robert H. Barham 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 Robert H. Barham.
TOR
By-
Na mJwe—:
y•Name: Ikobert H. Barham
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 9 of 16
James R. Harris 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 James R. Harris.
GUARANTOR
By: (2
Name: J es R. Harris
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 10 of 16
James B. Haddock 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 James B. Haddock.
GUARANTOR
By:
Name ames B. addock
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 11 of 16
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 12 of 16
ATTACHMENT"1"
Changes to Standard Completion Agreement
None
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 13 of 16
EXHIBIT A
BEING a tract of land situated in the John Askew Survey,Abstract No. 16,A.S. Roberts Survey,Abstract No. 1262
and the Alexander F.Albright Survey,Abstract No. 1849,City of Fort Worth,Tarrant County,Texas and being a
portion of a tract of land described by deed to Barham &Harris Land One, L.P.as recorded in Volume 14994, Page
311 of the Deed Records of Tarrant County,Texas(D.R.T.C.T.)and being a portion of a tract of land described in
deed to Barham&Harris Development One, L.P. recorded in Volume 14994, Page 313, D.R.T.C.T.and being more
particularly described by metes and bounds as follows:(Bearings referenced to U.S.State Plane Grid 1983-Texas
North Central Zone(4202) NAD83 as established using GPS Technology in conjunction with the RTK Cooperative
Network,all distance at ground);
BEGINNING at a 5/8"capped iron rod marked "BHB INC"set(CIRS)in the south line of said Barham& Harris Land
One, L.P.tract and the north line of Lot 28, Block 9, Marine Creek Hills Addition,an addition to the City of Fort
Worth,Texas according to the plat recorded in Cabinet A,Slide 7987 of the Plat Records of Tarrant County,Texas,
from which a 5/8"iron rod found for the southwest corner of said Barham&Harris Land One, L.P.tract bears
North West,a distance of feet;
THENCE North 36°58' 11" East, a distance of 154.91 feet to a CIRS;
THENCE North 53°01'25"West,a distance of 4.99 feet to a CIRS;
THENCE North 36°58'35" East,a distance of 50.00 feet to a CIRS;
THENCE North 81°58'35" East, a distance of 14.14 feet to a CIRS;
THENCE North 36°58'35" East,a distance of 210.00 feet to a CIRS;
THENCE North 08°01'25"West, a distance of 14.14 feet to a CIRS;
THENCE North 36°58'35" East,a distance of 50.00 feet to a CIRS;
THENCE North 81°58'35" East,a distance of 14.14 feet to a CIRS;
THENCE North 36'58'35" East,a distance of 105.00 feet to a 5/8" capped iron rod marked"BHB INC"found(CIRF)
for the southeast corner of Lot 14, Block 5 of Parkview Hills, Phase 4,Sections A&B,an addition to the City of Fort
Worth according to the plat recorded in Cabinet A,Slide 11540 and in the west Right-of-Way line of Falconer Way,
a 50.00 feet wide Right-of-Way;
THENCE South 53°01'25" East, along the south line of said Parkview Hills, Phase 4,Sections A&B,a distance of
50.00 feet to a CIRF for the southeast corner of said Parkview Hills, Phase 4,Sections A& B;
THENCE along the east line of said Parkview Hills, Phase 4,Sections A&B and said Falconer Way the following
courses and distances:
North 36°58'35" East,a distance of 105.00 feet to a CIRF;
North 78°57'48" East,a distance of 13.45 feet to a CIRF;
North 36'58'35" East,a distance of 50.00 feet to a CIRF;
North 05°00'39"West,a distance of 13.45 feet to a CIRF;
THENCE North 36°58'35" East,a distance of 105.00 feet to a 5/8" iron rod found for the southwest corner of Lot
1, Block 8 of said Parkview Hills, Phase 4,Sections A&B;
THENCE South 53°01' 25" East, leaving the east Right-of-Way line of said Falconer Way and along the south line of
said Lot 1,a distance of 175.00 feet to a CIRF;
THENCE South 56°45'58" East,a distance of 51.14 feet to a CIRF for the southeast corner of said Lot 1;
THENCE along the east line of said Parkview Hills, Phase 4,Sections A&B the following courses and distances:
North 02°04'59" East,a distance of 152.60 feet to a CIRF;
North 00°00'41"West,a distance of 302.97 feet to a CIRF for the northeast corner of Lot 6 of said
Parkview Hills, Phase 4,Sections A&B and in the south Right-of-Way line of Parkview Hills Lane,a 50.00
feet wide Right-of-Way;
THENCE along the said south Right-of-Way line the following courses and distances:
Along a non-tangent curve to the right having a central angle of 0433'07",a radius of 725.00 feet, an arc
length of 57.60 feet and a chord which bears North 87°42'45" East,a distance of 57.58 feet to a CIRS;
North 89°59' 19" East,distance of 54.13 feet to a CIRS;
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 14 of 16
South 48°01'28" East,a distance of 13.45 feet to a CIRS;
North 89°59' 19" East,a distance of 50.00 feet to a CIRS;
THENCE departing the said south Right-of-Way line and along the east line of the aforementioned Barham&Harris
Land One, L.P.tract the following courses and distances:
South 00°00'41" East,a distance of 100.20 feet to a CIRS;
Along a curve to the left having a central angle of 13°29'52", a radius of 475.00 feet,an arc length of
111.90 feet and a chord which bears South 06°45'37" East,a distance of 111.64 feet to a CIRS;
South 13'30'33" East,a distance of 754.28 feet to a CIRS;
Along a curve to the right having a central angle of 13°10'23",a radius of 525.00 feet,an arc length of
120.71 feet and a chord which bears South 06°55'22" East,a distance of 120.44 feet to a CIRS;
South 00'20'10" East,a distance of 79.54 feet to a CIRS;
Along a curve to the right having a central angle of 95°28'24",a radius of 50.00 feet,an arc length of 83.32
feet and a chord which bears South 07°11'00"West,a distance of 74.01 feet to a CIRS;
South 35°04'48" East, a distance of 20.00 feet to a CIRS;
South 00°20' 10" East, a distance of 135.15 feet to a CIRS for the southeast corner of the aforementioned
Barham& Harris Land One, L.P.tract;
THENCE along the south line of the said Barham&Harris Land One, L.P.tract the following courses and distances:
North 89'55'27"West,a distance of 165.96 feet to a CIRS;
Along a non-tangent curve to the right having a central angle of 39°54'51",a radius of 1,200.00 feet,an
arc length of 835.96 feet and a chord which bears North 73°00'49"West,a distance of 819.16 feet to
CIRS;
THENCE North 53°03'09"West,a distance of 238.90 feet to the POINT OF BEGINNING and containing 887,719
Square Feet or 20.379 Acres of Land more or less.
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 15 of 16
EXHIBIT B
APPROVED BUDGET
Section I
Water $269,040.00
Sewer $295,780.00
Subtotal $564,820.00
Section II
Interior Streets $627,465.00
Storm Drains $148,597.00
Subtotal $776,062.00
Section III
Street Lights $120,555,00
Sub-total $120,555.00
TOTAL $1,461,437.00
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 16 of 16