HomeMy WebLinkAboutContract 49179 878�,
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u�o f FORS'No0 COMPLETION AGREEMENT—LENDER FUNDED
` cm sECR�t Th' mpletion Agreement("Agreement)is made and entered into by and among the City
o� ti
s 8 h ("City"), and WILBOW-MORNINGSTAR DEVELOPMENT CORPORATION., a
Texas Corporation("Developer"), and SOUTHSIDE 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 17.634 lacres 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 16-141 or 17S ']; and
WHEREAS, the Developer and the City have entered into a Community Facilities
Agreement relating to the development of MORNINGSTAR DEVELOPMENT - SECTION 8,
PHASE 2'("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
Standard Completion Agreement—Lender-Funded OFFICIAL RECORD
CFA Official Release Date: 07.01.2015
Page 1 of 16 CITY SECRETARY
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 ($10.00) and other good and valuable consideration,the receipt, adequacy and sufficiency
of which are hereby acknowledged, the Parties agree as follows:
1. Recitals. The foregoing recitals are true, correct and complete and constitute the
basis for this Agreement and they are incorporated into this Agreement for all purposes.
2. The Completion Amount. The City and the Developer agree that the Hard Costs
required to complete the Improvements in the aggregate should not exceed the sum of NINE
HU—ND EIGHTY THCQI7SAND ONE E[UNDRED NINETY,EIGHTDOLIAR$AND SIXTY
CENTS Dollars ($9 a Q 19$ ,,-,6 0), 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
fiom 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 ill 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
A'' Attention : CFA Division
Janie Morales, Development Manager
Email:janie.morales@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:
WILBOW ,MORNINGS,T.AR DEVELOPMENT CORPQRATION
4131 N. CENTRAL EXPRESSWAY SUITE 990, LOCKBOX 13
DALLAS;TEXAS 75204
Email: Chas.Fitzgeralci cfi#z@v�ilbowusa com
(iii) Notice to the Lender shall be addressed and delivered as follows:
SOITTHSIDE BANK
1320 S UNDER SITY DRIVE,;SUITE 40 :
FOR .WORTH,TEXAS 76107
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 6 of 16
Email: Mark Cundiff,mark:cundiff@omniamerican.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.
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:
Jesus J. Chapa Name: Chas Fitzge ald
Assistant City Manager Title Co'=Pxeai .en
Date: (� �l — Date: 82i"J l ` Gill
Approved as to Form and Legality: LENDER:
(Zi64+AA'20 X kAc C0A"6;J ame ark C `
Assistant City Attorney &(ILJt7 Title Seritor uiee�'xesideri
ATTEST:
h ,
ORT i,y 4
IfAaryl J ser O
City Secretary
M&C:
Date:
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5 NS
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 8 of 16
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
lias -*.'t 7d, 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 byG�k'asFtzgexald.
GUARANTO
By: �`
Name Chas Fitzgerald
Title: ,-27Y-1c.e Piesid6ftt
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 9 of 16
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.
ame of Employee
Title /
❑ This form is N/A as No City Funds are associated with this Contract
Janie Morales /
Printed Name Signature
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 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 11 of 16
EXHIBIT A
Being a tract of land out of the P. J. McClary Survey, Abstract No. 907, and situated in Parker
County, Texas, and surveyed by Miller Surveying, Inc. of Hurst, Texas in November of 2016, said
tract being a portion of the same tract of land described in the deed to Wilbow-Morningstar
Development Corporation described in Correction Deed recorded as Document No. 2015-26673
in the Deed Records of Parker County, Texas, and being more particularly described by metes and
bounds as follows:
Beginning at a 1/2 inch "MILLER 5665" capped steel rod found for the northeast corner of Lot
13, Block 69, Morningstar, an addition to Parker County, Texas according to the plat thereof
recorded in Cabinet D,Page 656 of the Plat Records of Parker County,Texas, said rod being in the
southerly right-of-way line of Belclaire Avenue;
Thence North 82 degrees 53 minutes 49 seconds East with said southerly right-of-way line a
distance of 104.34 feet to a 1/2 inch "MILLER 5665" capped steel rod set;
Thence North 07 degrees 06 minutes 11 seconds West a distance of 340.00 feet to a 1/2 inch
"MILLER 5665" capped steel rod set;
Thence South 82 degrees 53 minutes 49 seconds West a distance of 2.96 feet to a 1/2 inch
"MILLER 5665" capped steel rod set;
Thence North 07 degrees 06 minutes 11 seconds West a distance of 240.00 feet to a 1/2 inch
"MILLER 5665" capped steel rod set;
Thence North 82 degrees 53 minutes 49 seconds East a distance of 6.08 feet to a 1/2 inch"MILLER
5665" capped steel rod set;
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 12 of 16
Thence North 07 degrees 06 minutes 11 seconds West a distance of 170.00 feet to a 1/2 inch
"MILLER 5665" capped steel rod set;
Thence North 82 degrees 53 minutes 49 seconds East a distance of 212.67 feet to a 1/2 inch
"MILLER 5665" capped steel rod set;
Thence North 85 degrees 15 minutes 59 seconds East a distance of 87.61 feet to a 1/2 inch
"MILLER 5665" capped steel rod set;
Thence North 88 degrees 47 minutes 31 seconds East a distance of 685.48 feet to a 1/2 inch
"MILLER 5665" capped steel rod set;
Thence North 88 degrees 46 minutes 42 seconds East a distance of 40.00 feet to a 1/2 inch
"MILLER 5665" capped steel rod set;
Thence South 01 degrees 13 minutes 18 seconds East a distance of 300.01 feet to a 1/2 inch
"MILLER 5665" capped steel rod set;
Thence South 88 degrees 47 minutes 31 seconds West a distance of 160.79 feet to a 1/2 inch
"MILLER 5665" capped steel rod set;
Thence South 01 degrees 12 minutes 29 seconds East a distance of 80.86 feet to a 1/2 inch
"MILLER 5665" capped steel rod set for the beginning of a curve to the left with a radius of 30.50
feet and whose chord bears South 15 degrees 53 minutes 58 seconds East at 15.47 feet;
Thence southerly with said curve along an arc length of 15.64 feet to a 1/2 inch "MILLER 5665"
capped steel rod set for the beginning of a curve to the right with a radius of 50.00 feet and whose
chord bears South 43 degrees 47 minutes 31 seconds West at 96.31 feet;
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 13 of 16
Thence southerly with said curve along an arc length of 129.82 feet to a 1/2 inch "MILLER 5665"
capped steel rod set for the beginning of a curve to the left with a radius of 30.50 feet and whose
chord bears North 76 degrees 31 minutes 00 seconds West at 15.47 feet;
Thence westerly with said curve along an arc length of 15.64 feet to a 1/2 inch "MILLER 5665"
capped steel rod set for the end of said curve;
Thence South 88 degrees 47 minutes 31 seconds West a distance of 48.20 feet to a 1/2 inch
"MILLER 5665" capped steel rod set;
Thence South 43 degrees 47 minutes 31 seconds West a distance of 14.14 feet to a 1/2 inch
"MILLER 5665" capped steel rod set;
Thence South 01 degrees 12 minutes 29 seconds East a distance of 200.86 feet to a 1/2 inch
"MILLER 5665" capped steel rod set for the beginning of a curve to the left with a radius of 30.50
feet and whose chord bears South 15 degrees 53 minutes 58 seconds East at 15.47 feet;
Thence southerly with said curve along an arc length of 15.64 feet to a 1/2 inch "MILLER 5665"
capped steel rod set for the beginning of a curve to the right with a radius of 50.00 feet and whose
chord bears South 31 degrees 46 minutes 00 seconds West at 88.59 feet;
Thence southerly with said curve along an are length of 108.83 feet to a 1/2 inch "MILLER 5665"
capped steel rod set for the end of said curve;
Thence South 01 degrees 12 minutes 29 seconds East a distance of 194.63 feet to a 1/2 inch
"MILLER 5665" capped steel rod set;
Thence South 70 degrees 39 minutes 34 seconds West a distance of 153.99 feet to a 1/2 inch
"MILLER 5665" capped steel rod set for the beginning of a curve to the right with a radius of
50.00 feet and whose chord bears South 68 degrees 09 minutes 14 seconds West at 64.52 feet;
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 14 of 16
Thence westerly with said curve along an arc length of 70.12 feet to a 1/2 inch "MILLER 5665"
capped steel rod set for the end of said curve;
Thence South 88 degrees 47 minutes 31 seconds West a distance of 161.22 feet to a 1/2 inch
"MILLER 5665" capped steel rod set;
Thence North 04 degrees 49 minutes 46 seconds West a distance of 153.31 feet to a 1/2 inch
"MILLER 5665" capped steel rod set;
Thence South 82 degrees 53 minutes 49 seconds West a distance of 323.61 feet to a 1/2 inch
"MILLER 5665" capped steel rod found for the southeast corner of said Lot 13;
Thence North 07 degrees 06 minutes 11 seconds West with the easterly boundary line of said Lot
13 a distance of 120.00 feet to the point of beginning and containing 17.634 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 $206466.00
Sewer $,122b99:b0,
Subtotal $329165;60
Section II
Interior Streets $499427.00
Storm Drains $,112416.0Q
Subtotal $011843:00
Section III
Street Lights $3,9190,00
Sub-total $39190.00
TOTAL $98098:60
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 16 of 16