HomeMy WebLinkAboutContract 49187 3 4 CITY SECRETARY l, �
Qt1► Sem CONTRACT NO.
COMPLETION AGREEMENT—LENDER FUNDED
OC�ryoFFo ?�? T Completion Agreement ("Agreement) is made and entered into by and among the
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City o ort Worth ("City"), and JenCro LLC, a Texas Limited Liability Company
+ ("Dewe oper"), and Pinnacle 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 16 '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 14-022 ; and
WHEREAS, the Developer and the City have entered into a Community Facilities
Agreement relating to the development of Red Eagle Place ("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 13
FT.WORM TX
CITY SECRETARY(
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 Two Hundred Eleven Thousand Three Dollars ($1,211,003), 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
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 2 of 13
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.
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 13
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
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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 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 5 of 13
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:
JenCro LLC
6012 Reef Point Lane Suite A
Ft, Worth,Texas 76135
Email: richard@crosscompanies.com
(iii) Notice to the Lender shall be addressed and delivered as follows:
Pinnacle Bank
8001 Boat Club Road, Suite A
Fort Worth,TX 76179
Email:jason.gibson@pinnbank.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 13
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 13
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:
JenCro LLC
Assistant City Manager Name: Richard Cross
Title: Manager
Date: F� f L
Date:
Approved as to Form and Legality:
LENDER:
Pinnacle Bank
Assistant City Attorney �js lid
N me: Jason Gibson
ATTEST: Title: Branch President
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City Secre y
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OFFICIAL RECORD
City of Fort Worth,Texas
CITY SECRETARY
Standard Completion Agreement—Lender-Funded FT.WORTH,TX
CFA Official Release Date: 07.01.2015
Page 8 of 13
Richard Cross, 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 JenCro LLC.
GUARANTOR
Name: Richard Cross
Title: Manager
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 9 of 13
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 13
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 13
EXHIBIT A
WHEREAS ROBERT M. CROSS AND JUDITH K. CROSS, TRUSTEES OF THE CROSS
FAMILY TRUST, ARE THE OWNERS OF ALL THAT CERTAIN 16.06 ACRES OF LAND
DESCRIBED IN THE DEED TO ROBERT M. CROSS AND JUDITH K. CROSS, TRUSTEES
OF THE CROSS FAMILY TRUST, RECORDED IN DOCUMENT NUMBER D213323701 IN
THE DEED RECORDS OF TARRANT COUNTY, TEXAS (D.R.T.C.T.), IN THE WILLIAM
CROMWELL SURVEY, A-342, CITY OF FORT WORTH TARRANT COUNTY,TEXAS
AND MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
(ALL BEARINGS SHOWN HEREON ARE BASED ON THE EAST LINE OF THE TRAILS
OF MARINE CREEK, AN ADDITION TO THE CITY OF FORT WORTH,RECORDED IN
CABINET A, SLIDE 9828 IN THE PLAT RECORDS OF TARRANT COUNTY, TEXAS
(P.R.T.C.T.);
BEGINNING AT A 5/8"IRON ROD WITH A CAP STAMPED "RPLS 4001"FOUND FOR
THE NORTHEAST CORNER OF LOT 24X, BLOCK 9, OF SAID TRAILS OF MARINE
CREEK, COMMON TO THE NORTHWEST CORNER OF SAID 32.494 ACRE TRACT AND
NORTHWEST CORNER OF THE HEREIN DESCRIBED TRACT, IN THE SOUTH LINE OF
LOT 1R, BLOCK 1, EAGLE MOUNTAIN WATER TREATMENT PLANT,RECORDED IN
CABINET A, SLIDE 5913 P.R.T.C.T.;
THENCE SOUTH 890 46' 11"EAST ALONG THE SOUTH LINE OF SAID LOT 1R, BLOCK
1,EAGLE MOUNTAIN WATER TREATMENT PLANT, PASSING AT A DISTANCE OF
167.40'A 1/2" IRON ROD FOUND IN CONCRETE,AND PASSING AT A DISTANCE OF
1285.23 A 1/2" IRON ROD FOUND FOR THE SOUTHEAST CORNER OF SAID LOT 1R,
CONTINUING FOR A TOTAL DISTANCE OF 1315.9570 A 1/2" IRON ROD WITH A CAP
STAMPED "SPRY"FOUND FOR THE NORTHEAST CORNER OF THE HEREIN
DESCRIBED TRACT, IN THE WEST RIGHT-OF-WAY LINE OF BOWMAN ROBERTS
ROAD (40'R.O.W.);
THENCE SOUTH 000 25' 52"WEST - 563.08'ALONG THE WEST LINE OF SAID
BOWMAN ROBERTS ROAD, TO 1/2" IRON ROD (DISTURBED) FOUND FOR THE
NORTHEAST CORNER OF THE 16.432 ACRE TRACT, DESCRIBED IN THE DEED TO
EAGLE MOUNTAIN-SAGINAW INDEPENDENT SCHOOL DISTRICT IN DOCUMENT
NUMBER D210201144 IN D.R.T.C.T., COMMON TO THE SOUTHEAST CORNER OF THE
HEREIN DESCRIBED TRACT;
THENCE ALONG THE NORTH LINE OF SAID 16.432 ACRE TRACT THE FOLLOWING
COURSES:
NORTH 890 44' 13"WEST- 694.69'TO A 1/2" IRON ROD WITH A CAP STAMPED "RPLS
4873"FOUND FOR THE POINT OF CURVATURE OF A CURVE TO THE LEFT, HAVING
A CENTRAL ANGLE OF 190 2F1 8",A RADIUS OF 490.00'AND A CHORD BEARING
AND DISTANCE OF SOUTH 800 35' 07" WEST- 164.74';
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date:07.01.2015
Page 12 of 14
ALONG SAID CURVE TO THE LEFT,AN ARC DISTANCE OF 165.53' TO A 1/2" IRON
ROD WITH A CAP STAMPED "RPLS 4873"FOUND FOR THE END OF CURVE;
THENCE SOUTH 700 54'27"WEST- 106.9470 A 1/2" IRON ROD WITH A CAP
STAMPED "RPLS 4873"FOUND FOR THE POINT OF CURVATURE OF A CURVE TO
THE RIGHT, HAVING A CENTRAL ANGLE OF 19°21' 19",A RADIUS OF 430.00'AND A
CHORD BEARING AND DISTANCE OF SOUTH 800 35' 0.7" WEST- 144.57;
ALONG SAID CURVE TO THE RIGHT, AN ARC DISTANCE OF 145.26' TO A 1/2" IRON
ROD WITH A CAP STAMPED "RPLS 4873"FOUND FOR THE END OF CURVE;
.NORTH 890 44' 13" WEST- 10.86'TO A 1/2" IRON ROD WITH A CAP STAMPED "RPLS
4873"FOUND FOR THE NORTHWEST CORNER OF SAID 16.432 ACRE TRACT,
COMMON TO THE SOUTHWEST CORNER OF THE HEREIN DESCRIBED TRACT, IN
THE EAST LINE OF SAID LOT 24X, BLOCK 9, THE TRAILS OF MARINE CREEK,
WHICH IS A POINT ON A CURVE TO THE RIGHT, HAVING A CENTRAL ANGLE OF
0.1° 43' 59", A RADIUS OF 325.50'AND A CHORD BEARING AND DISTANCE OF
NORTH 14°15'28"WEST- 10.66;
THENCE ALONG THE EAST LINE OF SAID LOT 24X,BLOCK 9, THE TRAILS OF
MARINE CREEK THE FOLLOWING COURSES:
ALONG SAID CURVE TO THE RIGHT,AN ARC DISTANCE OF 10.66 TO A 5/8" IRON
ROD WITH A CAP STAMPED "RPLS 4001"FOUND FOR THE END OF CURVE;
NORTH 130 23'28" WEST-431.4470 A 1/2" IRON ROD WITH A CAP STAMPED "RPLS
4001"FOUND FOR THE POINT OF CURVATURE OF A CURVE TO THE LEFT, HAVING
A CENTRAL ANGLE OF 120 30' 02",A RADIUS OF 367.50'AND A CHORD BEARING
AND DISTANCE OF NORTH 190 3828"WEST- 80.02';
THENCE WITH A CURVE TURNING TO THE LEFT,AN ARC DISTANCE OF 80.18'TO A
1/2" IRON ROD WITH A CAP STAMPED "RPLS 4001"FOUND FOR THE END OF
CURVE'
THENCE NORTH 250 53'28"WEST- 161.49'TO THE POINT OF BEGINNING AND
CONTAINING 16.058 ACRES OF LAND.
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 $189,001
Sewer $229,460
Subtotal $418,461
Section II
Interior Streets $570,914
Storm Drains $157,963
Subtotal $728,877
Section III
Street Lights $58,074
Sub-total $58,074
TOTAL $1,205,412
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
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