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.61CANTRACT i'l(13 0 0
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 11.181 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 13-027; and
WHEREAS, the Developer and the City have entered into a Community Facilities
Agreement relating to the development of Highpoint Hill 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.
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
City of Fort Worth, Texas
Standard Completion Agreement — Lender -Funded
CFA Official Release Date: 07.01.2015
Page 1 of 16
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CITY SECRETAK
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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 Nine
Hundred Thirty -Four Thousand Six Hundred Twenty Six and 50/100 Dollars ($934,626.50),
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. 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 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 16
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 16
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 perfoiuuance 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 16
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
perfoiuied 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 16
and/or
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
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:
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. Casey Tibbets
777 Main Street, Suite 500
Fort Worth, TX 76102
Email: casey.tibbets@frostbank.com
City of Fort Worth, Texas
Standard Completion Agreement — Lender -Funded
CFA Official Release Date: 07 01 2015
Page 6 of 16
A party may change its address for notice upon prior written notice to the other parties pursuant to
the terms hereof.
C. Texas Law to Apply. This Agreement shall be construed under and in accordance with the
laws of the State of Texas.
D. Parties Bound. This Agreement shall be binding upon and inure to the benefit of the Parties
and their respective legal representatives, successors and assigns.
E. Legal Construction. In case any one or more of the provisions contained in this Agreement
shall for any reason is held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other provision of this
Agreement, and this Agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained in this Agreement.
F. Prior Agreements Superseded. This Agreement constitutes the sole and only agreement of
the Parties with respect to the subject matter hereof and supersedes any prior
understandings or written or oral agreements among the Parties concerning the subject
matter hereof; provided, however, that this Agreement shall not supersede, amend or
modify any of the Loan Documents or any portion thereof.
G. Amendment. This Agreement may only be amended by a written instrument executed by
all of the Parties to his Agreement.
H. Headings. The headings that are used in this Agreement are used for reference and
convenience purposes only and do not constitute substantive matters to be considered in
construing the terms and provisions of this Agreement.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
City of Fort Worth, Texas
Standard Completion Agreement — Lender -Funded
CFA Official Release Date: 07.01.2015
Page 7 of 16
ACCORDINGLY, the City of Fort Worth, Developer and Lender have each caused this
instrument to be executed in quadruplicate in each entity's respective name by its duly
authorized signatories effective as of the date executed by the City's City Manager or his/her
designee.:
CITY OF FORT WORTH:
igetarrerneleacesta TalawS
Assistant City Manager
Date: c
Approved as to Form and Legality:
Doug as W. Black
Assistant City Attorney
ATTEST:
ary J. `IC‘yqr
City Secretary
M&C: it)/Ai
Date:
City of Fort Worth, Texas
Standard Completion Agreement — Lender -Funded
CFA Official Release Date: 07.01.2015
Page 8 of 16
DEVELOPER:
By: FM 1187 Management, LLC, its
general partner
B : - am Interests, Inc., its Manager
N. - : Robert H. Barham
Title: President
Date: l a /29
LENDER:
Name: Casey Tibbets
Title: Vice -President
1
OEFIC%itgg. sitt.A:URD
CITY SECRETARY
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.
GUARANTOR
frr�
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. Hanis.
GUARANTOR
By: —. '�
Name: Ja s R. Harris
Title: Partner
City of Fort Worth, Texas
Standard Completion Agreement — Lender -Funded
CFA Official Release Date: 07.01.2015
Page 9 of 16
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
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."
P aragraph 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."
P aragraph 10: In the first sentence, it should read "...the requirements of the City..." instead of
`...all requnements of the City..."
P aragraph 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 16
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 16
EXHIBIT B
A tract of land located in the John Steele Survey, Abstract No. 1381, City of Fort Worth, Tarrant
County Texas, and being described by document recorded in D204099979 of the Deed Records
of Tarrant County, Texas, 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 set 5/8 inch capped iron rod stamped "BHB" being the southerly southeast
corner of said tract hereon describe and being along the north property line of Mistletoe Hills
Phase VI as recorded in Cabinet A, Slide 11660 of the Plat Records of Tarrant County, Texas;
THENCE South 89 degrees 43 minutes 24 seconds West, along south property line of said tract
hereon describe and being along said north property line, a distance of 567.69 feet to a set 5/8
inch capped iron rod stamped `BHB ' and being the beginning of a curve to the right whose long
chord bears North 27 degrees 02 minutes 35 seconds East, a distance of 917.10 feet and having a
radius of 1000.00 feet;
THENCE northeasterly along said curve to the right through a central angle of 54 degrees 38
minutes 58 seconds, an arc length of 953.81 feet to a set 5/8 inch capped iron rod stamped
"BHB";
THENCE North 54 degrees 20 minutes 13 seconds East, a distance of 79.62 feet to a set 5/8
inch capped iron rod stamped "BHB" and being the beginning of a curve to the left whose long
chord bears South 35 degrees 46 minutes 06 seconds East, a distance of 155.00 feet and having a
radius of 3039.71 feet;
THENCE southeasterly along said curve to the left through a central angle of 02 degrees 55
minutes 19 seconds, an arc length of 155.02 feet to a set 5/8 inch capped iron rod stamped
"BHB";
THENCE South 08 degrees 30 minutes 24 seconds West, a distance of 13.94 feet to a set 5/8
inch capped iron rod stamped "BHB";
THENCE South 54 degrees 20 minutes 13 seconds West, a distance of 10.00 feet to a set 5/8
inch capped iron rod stamped `BHB";
THENCE South 41 degrees 22 minutes 37" seconds East, a distance of 50.25 feet to a set 5/8
inch capped iron rod stamped "BHB";
THENCE North 54 degrees 20 minutes 13 seconds East, distance of 10.00 feet to a set 5/8 inch
capped iron rod stamped `BHB";
City of Fort Worth, Texas
Standard Completion Agreement — Lender -Funded
CFA Official Release Date: 07 01 2015
Page 13 of 16
THENCE South 85 degrees 16 minutes 55 seconds East, a distance of 15.24 feet to a set 5/8
inch capped iron rod stamped "BHB" and being the beginning of a curve to the left whose long
chord bears South 67 degrees 44 minutes 24 seconds East, a distance of 371.15 feet and having a
radius of 490.00 feet;
THENCE southeasterly along said curve to the left through a central angle of 44 degrees 30
minutes 34 seconds, an arc length of 380.65 feet to a set 5/8 inch capped iron rod stamped
"BHB";
THENCE South 45 degrees 17 minutes 21 seconds East, a distance of 14.15 feet to a set 5/8
inch capped iron rod stamped "BHB";
THENCE South 00 degrees 18 minutes 38 seconds East, a distance of 10.00 feet to a set 5/8
inch capped iron rod stamped "BHB";
THENCE North 89 degrees 41 minutes 22 seconds East, a distance of 50.00 feet to a set 5/8
inch capped iron rod stamped ` BHB";
THENCE South 00 degrees 18 minutes 38 seconds East, a distance of 80.00 feet to a set 5/8
inch capped iron rod stamped "BHB";
THENCE South 45 degrees 18 minutes 38 seconds East, a distance of 14.14 feet to a set 5/8
inch capped iron rod stamped "BHB";
THENCE North 89 degrees 41 minutes 22 seconds East, a distance of 11.34 feet to a set 5/8
inch capped iron rod stamped ` BHB";
THENCE South 00 degrees 18 minutes 38 seconds East, a distance of 160.00 feet to a set 5/8
inch capped iron rod stamped "BHB";
THENCE South 89 degrees 41 minutes 22 seconds West, a distance of 78.64 feet to a set 5/8
inch capped iron rod stamped "BHB" being the beginning of a curve to the right whose long
chord bears North 76 degrees 52 minutes 17 seconds West, a distance of 353.26 feet and having
a radius of 760.00 feet;
THENCE northwesterly along said curve to the right through a central angle of 26 degrees 52
minutes 41 seconds, an arc length of 356.52 feet to a set 5/8 inch capped iron rod stamped
`BHB" and being the beginning of a curve to the left whose long chord bears South 37 degrees
09 minutes 33 seconds West, a distance of 101.54 feet and having a radius of 515.00 feet;
THENCE southwesterly along said curve to the left through a central angle of 11 degrees 18
minutes 55 seconds, an arc length of 101.71 feet to a set 5/8 inch capped iron rod stamped
"BHB";
City of Fort Worth, Texas
Standard Completion Agreement — Lender -Funded
CFA Official Release Date: 07.01.2015
Page 14 of 16
THENCE South 15 degrees 46 minutes 07 seconds East, a distance of 13.71 feet to a set 5/8
inch capped iron rod stamped "BHB";
THENCE South 27 degrees 36 minutes 23 seconds West, a distance of 50.00 feet to a set 5/8
inch capped iron rod stamped "BHB";
THENCE South 70 degrees 53 minutes 43 seconds West, a distance of 13.73 feet to a set 5/8
inch capped iron rod stamped "BHB" and being the beginning of a curve to the left whose long
chord bears South 20 degrees 39 minutes 31 seconds West, a distance of 54.85 feet and having a
radius of 515.00 feet,
THENCE southwesterly along said curve to the left through a central angle of 06 degrees 06
minutes 20 seconds, an arc length of 54.88 feet to a set 5/8 inch capped iron rod stamped `BHB"
and being the beginning of a curve to the right whose long chord bears South 36 degrees 16
minutes 34 seconds West, a distance of 44.82 feet and having a radius of 70.00 feet;
THENCE southwesterly along said curve to the right through a central angle of 37 degrees 20
minutes 24 seconds, an arc length of 45.62 feet to a set 5/8 inch capped iron rod stamped "BHB";
THENCE South 35 degrees 03 minutes 14 seconds East, a distance of 148.14 feet to the POINT
OF BEGINNING and containing 487,043 Square Feet or 11.181 acres of land more or less.
City of Fort Worth, Texas
Standard Completion Agi eement — Lender -Funded
CFA Official Release Date: 07 01 2015
Page 15 of 16
EXHIBIT C
APPROVED BUDGET
Section I
Water
Sewer
Subtotal
Section II
Interior Streets
Storm Drains
Subtotal
Section III
Street Lights
Sub -total
TOTAL
City of Fort Worth, Texas
Standard Completion Agreement — Lender -Funded
CFA Official Release Date: 07.01.2015
Page 16 of 16
$141,742.00
$169,039.00
$468,420.50
$44,125.00
$111,300.00
$310,781.00
$512,545.50
$111,300.00
$934,626.50