HomeMy WebLinkAboutContract 41701 (2)CITY SECRETARY
CONTRACT NOt_. '1 01 .
COMPLETION AGREEMENT
This Completion Agreement ("Agreement) is made and entered into by
and among the City of Fort Worth ("City"), and Riverbend Investment, Ltd., a
Texas Limited Partnership ("Developer"), and Texas Capital Bank
("Lender"), effective as of
a_ci, 20 11. 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 17.680 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 (which
tract of real property is hereinafter called the "Property"); and
WHEREAS, the Developer intends to develop the Property as an
addition to the City through plat FP 1 1-004 or FS h)/1,- ; and
WHEREAS, the Developer and the City have entered into a Community
Facilities Agreement relating to the development of Lakes of River Trails,
Phase 11 (hereinafter called the "CFA"); and
WHEREAS, the City has required certain assurances of the availability
of funds to complete the streets, street signs and lights, and the water and
sewer utilities for the development of the Property (herein collectively called
the "Community Facilities"), 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 (hereinafter
collectively called the "Plans"); and
WHEREAS, the Parties desire to set forth the terms and conditions of
such accommodations as are described above.
OFFICIAL ittECORD
CITY SECRETARY
Ft WORTH, TX
NOW THFREFORE, 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 Community Facilities in the
aggregate should not exceed the sum of _Eight hundred fourteen thousand one
hundred forty-six dollars Dollars ($814,146), hereinafter called the
"Completion Amount". Notwithstanding the foregoing, it is acknowledged
that the actual costs of completion of the Community Facilities 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. Adiustments 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
Community Facilities 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 (which term is hereinafter defined) line items highlighted.
The term "Hard Costs" shall mean the actual costs of construction and
installation of the Community Facilities. To the extent that advances under
the Loan are for the payment of Hard Costs, the Completion Amount shall be
COMPLETION AGREEMENT
January 2007
Page 2 of 12
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 Community Facilities on or before the date for completion that
is established in the Loan Documents plus thirty (30) days (hereinafter called
the "Completion Date"), in accordance with the CFA, the Plans that are
approved by the Lender and the City and all documents evidencing or
securing the Loan (which documents are hereinafter collectively called 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
Community Facilities. 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 Community Facilities and the City shall then
commence, pursue, and complete the Community Facilities 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 Community
Facilities.
If the City does not timely elect to complete the construction of the
Community Facilities, then the Lender may at its election terminate this
COMPLETION AGREEMENT
January 2007
Page 3 of 12
Agreement, or at its option, proceed to complete the Community Facilities, 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 Community Facilities, 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 Community Facilities.
In the event the cost to complete the Community Facilities 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 Community Facilities 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 Community Facilities, 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 Community Facilities
if there is any default under any Loan Documents in lieu of requesting the
City to complete the Community Facilities. If the Lender elects to complete
the Community Facilities, 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 Community Facilities, the Developer (and to the extent
COMPLETION AGREEMENT
January 2007
Page 4 of 12
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 Community Facilities 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 Ritzhts. 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 payment and performance bonds or
other requirements for security in connection with the development of the
Property and the completion of the Community Facilities 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
e xtent the CFA irreconcilably conflicts with this Agreement, the provisions
o f this Agreement shall control.
11. Termination This Agreement shall terminate upon the earlier to
o ccur of the following: (a) acceptance by the City of the Community
Facilities; (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 Community Facilities are
completed and accepted by the City and all Hard Costs contractors have been
COMPLETION AGREEMENT
January 2007
Page 5 of 12
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 Community
Facilities the following:
a. A statement that the City is not holding any security to guarantee any
payment for work performed on the Community Facilities;
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; 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
Planning and Development Department
1000 Throckmorton Street
Fort Worth, Texas 76102
COMPLETION AGREEMENT
January 2007
Page 6 of 12
and/or
Attention: CFA Division
David Schroeder, Development Manager
Email: David.Schroeder@fortworthgov.org
Confirmation Number 817-392-2239
Attention: CFA Division
Jana Knight, Administrative Assistant
Email: Jana Knight@fortworthgov.org
Confirmation Number: 817-392-2025
With a copy thereof addressed and delivered as follows:
Marcia E Wise
Office of the City Attorney
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
Confirmation Number: 817-392-7607
(ii) Notice to the Developer shall be addressed and delivered as
follows:
Riverbend Investment, Ltd
PO Box 185104
Fort Worth, Texas 76181
(iii) Notice to the Lender shall be addressed and delivered as follows:
Texas Capital Bank
500 Throckmorton, Suite 300
Fort Worth, Texas 76102
Email: barry.kromann@texascapitalbank.com
A party may change its address for notice upon prior written notice to the
other parties pursuant to the terms hereof.
COMPLETION AGREEMENT
January 2007
Page 7 of 12
C. Texas Law to Annlv. 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 Sunerseded. 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)
COMPLETION AGREEMENT
January 2007
Page 8 of 12
Executed by the Parties in five counterparts, each of which shall be
deemed to be an original, to be effective as of the date first stated above.
CITY OF FORT WORTH
By:
Fernando Costa /1 M
(
Assistant City Manager
DEVELOPER
Riverbend Investment, Ltd.
By its General Partner
RBE Investment, Corporation
Name:Kenneth B. Newell
Title: President
APPROVED AS TO FORM AND
LEGALITY
de/WL fc tgae4
Marcia E. Wise
S*Assistant City Attorney
Attested by:
LENDER
By:
Name: Barry omann
Title: Executive Vice
Marty Flendris, City S
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President �A ) 0 cy
Riverbend Investment, Ltd., the "Guarantor" of the Development Loan,
is executing this Completion Agreement for the sole purpose of
. p p
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 Kenneth B. Newell.
NO IVI&C REQUIRED
OFFICIAL RECORD
CITY SECRETARY
Ft WORTH, TX
COMPLETION AGREEMENT
January 2007
Page 9 of 12
DEVELOPER
Riverbend Investment, Ltd. by its
General Partner RBE Investment,
Corporation
Name:Kenneth B. ewell
Title: President
LIST OF EXHIBITS TO THE COMPLETION AGREEMENT
EXHIBIT A -
EXHIBIT B -
LEGAL DESCRIPTION
APPROVED BUDGET
COMPLETION AGREEMENT
January 2007
Page 10 of 12
EXHIBIT
STATE OF TEXAS
COUNTY OF TARRANT
s
WHEREAS, Riverbend Investment, Ltd., a Texas limited partnership, acting by and through the
undersigned, its duly authorized agent, is the sole owner of all that certain tract, parcel, or lot of
land located in the John W. Sansom Survey, Abstract No. 1387 and the Allen S. Trimble
Survey, Abstract No. 1528, City of Fort Worth, County of Tarrant, Texas, according to the deed
recorded in Volume 13681, Page 387, Deed Records, Tarrant County, Texas, and being more
particularly described by metes and bounds as follows•
BEGINNING at a 1/2" iron rod found at the most Northerly Northeast corner of Tract 2,
described in said deed recorded in Volume 13681, Page 387 lying in the South line of Parcel
No. 1D described in the deed to the City of Fort Worth, a municipal Corporation of Tarrant
County, Texas recorded in Volume 4119, Page 535, Deed Records, Tarrant County, Texas,
said South line being the South right—of—way line of Trinity Boulevard;
THENCE S03°07'48"E, a distance of 1,081.25 feet along the east line of said Tract 2 to a point,
THENCE S89'37'06"W, a distance of 392.39 feet to a point;
THENCE N00°22'54"W, a distance of 110.00 feet to a point;
THENCE S89°37'06"W, a distance of 5.71 feet to a point;
THENCE N00°22'54"W, a distance of 160.00 feet to a point;
THENCE N89'37'06"E, a distance of 6.00 feet to a point;
THENCE N00°22'54"W, a distance of 110.00 feet to a point;
THENCE S89°37'06"W, a distance of 7.76 feet to a point;
THENCE N00'22'54"W, a distance of 160.00 feet to a point;
THENCE S89°37'06"W, a distance of 796.50 feet to a point;
THENCE N00°22'54"W, a distance of 110.00 feet to a point;
THENCE S89°37'06"W, a distance of 2.26 feet to a point;
THENCE N00°22'54"W, a distance of 160.00 feet to a point;
THENCE N89°37'06"E, a distance of 258.00 feet to a point;
THENCE N00°22'54"W, a distance of 110.00 feet to a point;
THENCE S89°37'06"W, a distance of 42.73 feet to a point;
THENCE NOO°22'54"W, a distance of 160.00 feet to a point in said South line of the City of Fort
Worth tract and Trinity Boulevard;
THENCE N89°37'06"E, a distance of 931.50 feet along said South line to the point of beginning,
containing 17.680 acres of land.
The bearings recited hereon are oriented to NAD 83 North Central Zone Grid.
EXHIBIT "B"
Lakes of River Trails - Phase 11
Paving_ Facilities
Item
1. 7° 3000 PSI Concrete Paving
2, 6" Lime Stabilized subgrade
3. Lime (27#/sy)
4 7° Integral Curb
5, Developer Sidewalks
6. HC Ramps
7. Adjust Manholes
8. Adjust Water valve boxes
9. Dead End Barricades
10, Traffic Control
11, Asphalt Paving
Water Facilities
Item
1. 8" Waterline
2. 8° Gate Valves
3. 6" Gate Valves
4. Fire Hydrant
5, CIRT Fittings
6, 1" Water Sevices
7. Trench Safety
8. Test
9. Remove and Replace Asphalt
10. Traffic Control
11. Sawcut Fisting Pavement
12. Cement - Quickset for Blocking
Sanitary Sewer Facilities
Item
1. 8" SDR 35 PVC
2. 4' DIA SSMH
3. 4" SDR 35 service w/ CO
4. 4" SDR 26 service w/ CO
5. Post Construction CCTV
6, Manhole Vacuum Testing
7. Trench Safety
8. Raise Ex. 4' MH R/C
9. SS Concrete Collar
Storm Water Facilities
Item
1. 10' Curb Inlet
2. 66" Class III RCP
3. 60" Class III RCP
4. 48" Class III RCP
5. 42" Class III RCP
6. 33" Class ill RCP
7, 27" Class III RCP
8. 24" Class III RCP
9. 21" Class III RCP
10. 24° Class IV RCP
11. 21" Class IV RCP
12. 66" Type "A" Headwall
13. 21" Sloped End Headwall
14. 24" Sloped End Headwall
15. 7'xT Junction Box
16. 6'x6' Junction Box
17. 5'x5' Junction Box
18. 4'x4' Junction Box
19. Trench Safety
20. Concrete Collar
21. Remove Ex 48" Headwall
Street Light Facilities
Item
1. Light standard foundations
2. Light Standards
3. Light Heads
4. 2" Schedule 40 PVC
5. #10 Copper Wire
Quantity
9601
10990
148.37
5526
1172
0
12
18
4
1
1051
Quantity
3411
18
4
4
2.72
80
3411
1
55
1
190
3.488
Quantity
1880
4
32
31
1880
4
1880
4
8
Quantity
8
285
131
180
256
154
69
129
17
51
51
1
2
2
1
1
2
i
1323
1
1
Quantity
11
11
11
850
2550
Unit
SY
SY
TON
LE
SF
EA
EA
EA
EA
LS
SY
Unit
LF
EA
EA
EA
TON
EA
LS
LS
SY
LS
LF
CY
Unit
LF
EA
EA
EA
LF
EA
LF
EA
EA
Unit
EA
LF
LF
LF
LF
LF
LF
LF
IF
LF
LF
EA
EA
EA
EA
EA
EA
EA
LF
EA
EA
Unit
EA
EA
EA
LF
LF
5
5
$
s
$
$
$
Total
Total
$
$
$
$
Total
Total
Total
Cost/Unit
24.01
1.85
145.00
2.00
4.00
350.00
300.00
150.00
950.00
3,000.00
26.70
CosVUnit
18.50
1,100.00
660.00
2,475.00
5,940.00
565.00
0.12
1,000.00
85.00
1,500.00
2.00
150.00
Cost/Unit
20.00
2,600.00
360.00
390.00
1.00
100.00
0.21
1,600.00
150.00
Cost/Unit
2,550.00
183.20
156.60
120.60
108.90
61.10
47.80
40.80
37.60
44.50
35.00
5,000.00
1,000.00
1,150.00
10,500.00
9,750.00
8,000.00
2,750.00
0.30
450.00
750.00
CosVUnit
250.00
1,300.00
300.00
1.25
0.40
Grand Total
Total
230,520.01
20,331.50
21,513.65
11,052.00
4,688.00
3,600.00
2,700.00
3,800.00
3,000.00
28,061.70
329,266.86
Total
63,103.50
19,800.00
2,640.00
9,900.00
16,156.80
45,200.00
400.00
1,000.00
4,675.00
1,500.00
380.00
523.20
165,278.50
Total
$ 37,600.00
$ 10,400.00
$ 11,520.00
$ 12,090.00
$ 1,880.00
$ 400.00
$ 400.00
$ 6,400.00
$ 1,200.00
$ 81,890.00
Total
20,400.00
52,212.00
20,514.60
21,708.00
27,878.40
9,409.40
3,298.20
5,263.20
639.20
2,269.50
1,785.00
5,000.00
2,000.00
2,300.00
10,500.00
9,750.00
16,000.00
2,750.00
400.00
450.00
750.00
2151277.50
Total
$ 2,750.00
$ 14,300.00
$ 3,300.00
$ 1,062.50
$ 1,020.00
22,432.50
5 514,145.35