HomeMy WebLinkAboutContract 49879 CITY SECRETARY n
CONTRACT N0. � l
COMPLETION AGREEMENT—LENDER FUNDED
This Completion Agreement("Agreement) is made and entered into by and among the City
of Fort Worth("City"),and BH Development Two,L.P.,a Texas limited partnership("Developer"),
and Frost 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 12.581 ;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 16-134; and
WHEREAS, the Developer and the City have entered into a Community Facilities
Agreement relating to the development of Highpoint Hill Phase 3 ("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
61observance by the Parties of the terms and conditions hereof, and for and in consideration of Ten
Cit}fo orthexas
4 St pletion Agreement—Lender-Funded
I- f& I.tease Date: 07.01.2015
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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 Seven
Hundred Sixty Three Thousand Three Hundred Seventy Five and 50/100 Dollars ($763,375.50),
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 15
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 15
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 15
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 5 of 15
City of Fort Worth
Planning and Development Department
200 Texas Street
Fort Worth, Texas 76102
Attention: CFA Division
Janie Morales, Development Manager
Email: Janie.Morales@fortworthtexas.gov
Confirmation Number: 817-392-7810
and/or
Attention: CFA Division
Email: cfa@fortworthtexas.gov
Confirmation Number: 817-392-2025
With a copy thereof addressed and delivered as follows:
Richard A. McCracken
Office of the City Attorney
City of Fort Worth
200 Texas Street
Fort Worth,Texas 76102
Confirmation Number: 817-392-7611
(ii) Notice to the Developer shall be addressed and delivered as follows:
Robert H. Barham
BH Development Two, 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:
Frost Bank
Attn: Larry Chilton
777 Main Street, Suite 500
Fort Worth, TX 76102
Email: larry.chilton@frostbank.com
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 6of15
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 I 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 15
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:
BH Development Two, L.P.
By: FM 1187 Management, LLC, its
general partner
Fernando Costa By: nterests, Inc., its Manager
Assistant City Manager
Date: ` l' ' / z Name" obert H. Barham
Title: President
Approved as to Form and Legality:
Date: 10
LENDER:
Richard A. McCracken
Assistant City Attorney
ATTEST: F N ra Larry Cr
Of .. RT Title: Executi Vice-President
V' O
ary L4k 'r
City Secretary
�FjCAS
M&C:
Date:
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date:07.01.2015
Page 8 of 15
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.
-ARANTOR
By:
Name: Obert H. Barham
Title: Partner
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
�'Z'Izc J�
By:
Name: James R. Harris
Title: Partner
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date:07.01.2015
Page 9 of 15
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 15
ATTACHMENT"1"
Changes to Standard Completion Agreement
Paragraph 3: Change the title from "Adjustments to the Completion Amount" to "Reductions in
the Completion Amount".
Paragraph 4: The second to the last sentence should read"For the purposes of this Agreement,the
development of the Property shall be deemed complete upon acceptance by the City of the
Improvements including punch list items, which acceptance shall not be unreasonably withheld,
conditioned or delayed."
Paragraph 5: The first sentence should read"...or(B)the Developer is in default under any of the
Loan Documents..."
Paragraph 5: The last sentence should read "...terminate this Agreement, and/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 for under the Loan Documents."
Paragraph 6: The third paragraph should read"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 for 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 for work actually completed. Any remaining undisbursed Hard
Costs shall be returned to Lender within thirty (30) days after the contractor(s) have been paid in
full for work to date."
Paragraph 7: The paragraph should read"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 of the 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. Any retainage,when paid,shall also,dollar
for dollar, reduce the Completion Amount."
Paragraph 10: In the first sentence, it should read "...the requirements of the City..." instead of
"...all requirements of the City..."
Paragraph 12: In the second sentence, insert the words "or Lender" after the word"Developer".
Paragraph 13c: It should read"...or the improvements..." instead of"...of the Improvements...".
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date:07.01.2015
Page 11 of 15
Paragraph 14: In Item F, add the following to the end of the paragraph: "...except as expressly
provided herein in the event Lender requests the City to complete the Improvements following a
default by developer."
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date:07.01.2015
Page 12 of 15
EXHIBIT B
BEING a tract of land situated in the John Steele Survey,Abstract No. 1381, City of Fort Worth,Tarrant
County Texas,and being the remainder of a tract of land as described by deed to BH Development Two,
LP,as recorded in D204099979 of the Deed Records of Tarrant County,Texas(DRTCT),and being more
particularly described by metes and bounds as follows(bearing referenced to the south right of way for
State Farm to Market Highway 1187(FM 1187):
BEGINNING at a found 5/8-inch capped iron rod marked "BHB INC" (CIRF)for the southernmost
southeast corner of Highpoint Hill as shown on plat recorded in Document No. D216210714 of the Plat
Records,Tarrant County,Texas (PRTCT);
THENCE with the east line of the said Highpoint Hill plat the following courses and distances:
North 35°03'14"West,a distance of 148.14 feet to an CIRF;
Along a curve to the left having a central angle of 37020'24",a radius of 70.00 feet, an arc length
of 45.62 feet and a chord which bears North 36°16'34" East,a distance of 44.82 feet to an CIRF;
Along a curve to the right having a central angle of 06°06'20",a radius of 515.00 feet,an arc
length of 54.88 feet and a chord which bears North 20°39'31" East,a distance of 54.85 feet to an
CIRF;
North 70°53'43" East,a distance of 13.73 feet to an CIRF;
North 27°36'23" East, a distance of 50.00 feet to an CIRF;
North 15°46'07"West, a distance of 13.71 feet to an CIRF;
Along a curve to the right having a central angle of 11°18'55", a radius of 515.00 feet,an arc
length of 101.71 feet and a chord which bears North 3709'33" East, a distance of 101.54 feet to
an CIRF;
Along a curve to the left having a central angle of 26°52'41", a radius of 760.00 feet, an arc
length of 356.52 feet and a chord which bears South 76°52'17" East, a distance of 353.26 feet to
an CIRF;
North 8941'22" East, a distance of 78.64 feet to an CIRF;
North 00'18'38"West,a distance of 160.00 feet to an CIRF;
South 89041'22" West,a distance of 11.34 feet to an CIRF;
North 45°18'38" West, a distance of 14.14 feet to an CIRF;
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 13 of 15
North 00'18'38"West, a distance of 90.00 feet to an CIRF for the southwest corner of a clip
corner at the southeast corner of the intersection of Archbury Road (a 60-foot right-of-way)and
Panorama Drive(a 50-foot right-of-way);
THENCE with the southern right-of-way line of said Archbury Road the following courses and distances:
North 44041'22" East,a distance of 14.14 feet to an CIRF;
North 89'41'22" East,a distance of 386.99 feet to an CIRF;
Along a curve to the right having a central angle of 08°25'19",a radius of 430.00 feet,an arc
length of 63.21 feet and a chord which bears South 86°06'00" East,a distance of 63.15 feet to an
CIRF;
South 80°08'28" East, a distance of 26.23 feet to an CIRF;
Along a curve to the right having a central angle of 69°58'43",a radius of 430.00 feet, an arc
length of 525.18 feet and a chord which bears South 43'24'08" East, a distance of 493.14 feet to
an CIRF;
South 40'50'19"West, a distance of 15.31 feet to an CIRF;
South 00'15'47"West, a distance of 48.42 feet to an CIRF;
South 89°44'13" East, a distance of 4.85 feet to an CIRF;
South 45°29'18" East, a distance of 13.96 feet to an CIRF;
Along a curve to the right having a central angle of 03°05'31",a radius of 430.00 feet, an arc
length of 23.21 feet and a chord which bears South 02°27'55"West, a distance of 23.20 feet to
an CIRF;
South 04°00'40"West, a distance of 77.84 feet to an CIRF in the north line of Mistletoe Hills
Phase II as shown on plat recorded in Cabinet A,Slide 9890, PRTCT;
THENCE South 89'43'24" West with the said north line, a distance of 1277.23 feet to the POINT OF
BEGINNING and containing 548,042 Square Feet or 12.581 acres of land more or less.
ti
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 14 of 15
EXHIBIT C
APPROVED BUDGET
Section I
Water $155,112.50
Sewer $190,990.00
Subtotal $346,102.50
Section II
Interior Streets $304,529.00
Storm Drains $73,669.00
Subtotal $378,198.00
Section III
Street Lights $39,075.00
Sub-total $39.075.00
TOTAL $763,375.50
City of Fort Worth,Texas
Standard Completion Agreement—Lender-Funded
CFA Official Release Date: 07.01.2015
Page 15 of 15
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.
Q-- m ra "') f,
Ja IS. Morales
Development Manager