HomeMy WebLinkAboutContract 44831.;. ; ,. ,
� ; .'� - � ��
COMPLETION AGREEMENT
This Completion Agreement ("Agreement) is made and entered into by
and among the City of Fort Worth ("City"), and Hillwood Residential
Services, L.P., a Texas limited partnership ("Developer"), and Finance
Partners, LP ("Lender"), effective as of June 28, 2013. The City, the
Developer and the Lender are hereinafter collectively called the "Parties".
WITNESSETH:
WHEREAS, Hillwood RLD, L.P., a Texas limited partnership
(`Borrower") owns that certain tract of real property that contains
approximately 20.168 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 Borrower intends to develop the Property as an addition
to the City through plat FP_013-026_ or FS_n/a ; and
WHEREAS, the Borrower has engaged the Developer to construct the
Community Facilities (hereinafter defined), and the Developer and the City
have entered into----�- Community Facilities Agreement relating to the
development of _Phase 4 of Creekwood Addition (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 Borrower has granted to the Lender as additional
security for the Loan (which term is hereinafter defined) a security interest in
�' .t, �-.:���;�'�,I
� � _ �' �
ECCI\�ED SEP 2'�3� ���
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.
NOW THEREFORE, for and in consideration of the benefits to be
derived from the mutual observance by the parties of the terms and conditions
hereof, and for and in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt, adequacy and sufficiency of which
are hereby acknowledged, the Parties and Borrower 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 Comuletion 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 Six Hundred Eighteen Thousand,
Three Hundred Fortv-nine and 75/100 Dollars ($618,349.75), 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 Borrower for the development of the
Property under the development loan that has been made by the Lender to the
Borrower 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 the hard costs portion of the
Approved Budget relating to the Community Facilities is marked Exhibit "B",
Page 2 of 14
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 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 bv the CitV. 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 Borrower 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,
Page 3 of 14
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 or if the City does not pursue and/or complete the
Community Facilities in the manner required in the foregoing paragraph, then
the Lender may at its election terminate this Agreement, and/or at its option,
proceed to complete the Community Facilities, and/or foreclose on any of its
collateral, and/or take any and all such action as may be provided under the
Loan Documents.
6. Advance of Completion Costs to the Citv and Delivery of Hard
Costs Collateral to the Citv. In the event the Lender has requested the City
and the City has elected to complete the Community Facilities, Lender shall
agree (within 10 days of the date that the City elected to complete and
provided Lender with written notice of such election) to advance to the City
the remaining undisbursed Hard Costs specified in the Approved Budget,
provided the City complies with advance disbursement procedures reasonably
required by Lender, including without limitation, delivering copies of
invoices, lien waivers and bills paid affidavits from contractors performing
the Hard Costs work as a condition precedent for each advance.
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 pursuant to the foregoing sentence if 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 by
Developer 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's
Page 4 of l4
a
sole remedy shall be to 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 bv 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 or this Agreement 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, Borrower (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 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 Borrower and filed of record. Nothing in this
paragraph shall reduce any rights of the Lender or obligations of Borrower
under the Loan Documents.
9. Lender's Ri�hts. 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 Citv 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
Page 5 of 14
extent the CFA irreconcilably conflicts with this Agreement, the provisions
of this Agreement shall control.
11. Termination. This Agreement shall terminate upon the earlier to
occur of the following: (a) acceptance by the City of the 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 and Borrower 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 paid, less retainage, (the holding of the final plat as
described herein and the agreements of Lender in Section 6 hereof being the
City's sole and exclusive remedies for a default by the Developer or Lender
under this Agreement). Upon acceptance by the City and receipt of evidence
from the Developer or Lender 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 payment claim that is related to the Property,
unless the City elects to complete the Community Facilities pursuant to
Page 6 of 14
Sections 5 and 6 above and retains such contractor as the contractor to
continue performing the Hard Costs work; 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 A�reement. 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
Attention: CFA Division
David Schroeder, Development Manager
Email: David.Schroeder@fortworthgov.org
Confirmation Number: 817-392-2239
and/or
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:
Douglas W. Black
Office of the City Attorney
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
Page 7 of 14
Confirmation Number: 817-392-7607
(ii) Notice to the Developer or Borrower shall be addressed and
delivered as follows:
Hillwood Residential Services or Hillwood RLD, LP
3090 Olive Street, Suite 300
Dallas, Texas 75219
Email: Angie.Mastrocola@Hillwood.com ,
(iii) Notice to the Lender shall be addressed and delivered as follows:
Finance Partners, LP'
'3090 Olive Street, Suite 300
IDallas, Texas 75219
Email: Tom.Mason@Hiliwood.com:
A party may change its address for notice upon prior written notice to the
other parties pursuant to the terms hereof.
C. Texas Law to Apply. This Agreement shall be construed under and in
accordance with the laws of the State of Texas.
D. Parties Bound. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective legal representatives,
successors and assigns.
E. Legal Construction. In case any one or more of the provisions
contained in this Agreement shall for any reason is held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision of this Agreement,
and this Agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained in this Agreement.
F. Prior A�reements 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
Page 8 of 14
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)
Page 9 of 14
Executed IN QUADRUPLICATE by the Parties hereto:
CITY OF FORT WORTH:
DEVELOPER:
HILLWOOD RESIDENTIAL SERVICES, L.P.,
a Texas limited partnership
By:
L�A�+.dO �i� �
Fernando Costa
Assistant City Manager
Date: U /3
APPROVED AS TO FORM:
Hillwood Services GP, LLC,
a Texas limited liability company,
its �eneral nartrier
�eee� �r�d � 3a�da-
�(����.e� v �
Date: "I ' 'J v%� �
LENDER:
Finance Partners, LP,
a Texas liinited partnership
as W. Black
Assistant City Attorney
ATTEST:
i ->
�z��j,s., �; �_
�� _a
.•��
-�, � `#
-� .
�«
Mary J.
City Se
M&C: �,'� �
Date:
By: Finance Partners GP, LLC,
a Texas limited liability company
� its general partner
,�
.
/ ;i? i��� :�lli �s�
Name: M. Thomas Mason
Title: Executive Vice President
BORROWER:
Hillwood RLD, L.P.,
a Texas limited partnership
By: Hillwood Operating, L.P.,
a Texas limited partnership,
Its general partner
By: Hillwood Services GP, LLC,
a Texas limited liability company,
it:
B
N
Ti
Page ]0 of 14
.f�. �� ��'i'�
/
' Finance Partners, LP',; the "Lender" 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.
Hillwood RLD, L.P. is executing this Completion Agreement for the
sole purpose of acknowledging and agreeing to the provisions of Borrower in
Section 8 and Section 12 of this Completion Agreement.
LIST OF EXHIBITS TO THE COMPLETION AGREEMENT
EXHIBIT A -
EXHIBIT B -
LEGAL DESCRIPTION
APPROVED BUDGET
Page 11 of 14
DESCRIPTION OF 20.168 ACRES OF LAND
BEING A TRACT OF LAND SITUATED 1N THE J.P. ALFORD SURVEY, ABSTRACT
NUMBER 53, AND THE H. ROBERTSON SURVEY, ABSTRACT NUMBER 1798, BOTH
OF TARRANT COUNTY, TEXAS, AND BEING A PORTION OF THAT TRACT OF LAND
CONVEYED TO HILLWOOD RLD, L.P. BY DEED RECORDED 1N VOLUME 16002,
PAGE 313, COLTNTY RECORDS, TARRANT COUNTY, TEXAS AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING THE NORTHWEST CORNER OF LOT 1, BLOCK 16, CREEKWOOD
ADDITION, PHASE 2, AN ADDITION TO THE CITY OF FORT WORTH RECORDED IN
CABINET A, SLIDE 9989, PLAT RECORDS, TARRANT COLJNTY, TEXAS AND BEING
1N THE EAST LINE OF LOT 54X, BLOCK 27, CREEKWOOD ADDITION, PHASE 3, AN
ADDITION TO THE CITY OF FORT WORTH RECORDED IN CABiNET A, SLIDE 11507,
SAID PLAT RECORDS;
THENC� N 00°O1'S6"W, 291.87 FEET;
THENCE N 00° 13'O 1"E, 190.99 FEET WITH SAID EAST LINE TO THE NORTH RIGHT-
OF-WAY LINE OF FALL WOOD TRAIL (A 50' RIGHT-OF-WAY) AND THE BEGINNiNG
OF A NON-TANGENT CURVE TO THE RIGHT;
THENCE WITH SAID RIGHT-OF-WAY L1NE AND SAID NON-TANGENT CURVE TO
THE RIGHT, AN ARC DISTANCE OF 143.02 FEET, THROUGH A CENTRAL ANGLE OF
81°56'38", HAVING A RADIUS OF 100.00 FEET, THE LONG CHORD OF WHICH BEARS
N 40°45'18"W, 131.14;
THENCE N 00° 13'O 1"E, 20.00 FEET WITH SAID RIGHT-OF-WAY LINE TO THE NORTH
LINE OF SAID HILLWOOD RLD, L.P. TRACT AND BE1NG IN THE SOUTH LINE OF
THAT TRACT OF LAND DESCRIBED TO C-8575BMR, L.L.C. AND M-8575BMR, L.L.C.
AS RECORDED IN VOLUME 14821, PAGE 16, COUNTY RECORDS, TARRANT
COUNTY, TEXAS;
THENCE S 89°46'S9"E, 2129.42 FEET WITH SAID COMMON LINE TO THE NORTH
LINE OF SAID CREEKWOOD ADDITION, PHASE 2;
THENCE WITH THE NORTH LINE OF SAID CREEKWOOD ADDITION, PHASE 2 THE
FOLLOWING BEARINGS AND DISTANCES;
S 69°49'42"W, 625.19 FEET;
S 00°16'30"W, 142.44 FEET;
S 64° 13'32"W, 189.22 FEET TO THE EAST RIGHT-OF-WAY LINE OF ASH
MEADOW DRIVE (A 50' RIGHT-OF-WAY);
Peloton Job No. 10_HWR002
Creekwood April 23, 2013
G:\COMMON�PROJECTS\CREEKWOOD�PHASE 4\ENGINEERING�FINAL-AMENDED
PLATS\CREEKWOOD4-PLAT_LEG20130419.DOCX Page 1 of 2
��► ��-� �-
N 89°43'30"W, 50.00 FEET TO THE WEST RIGHT-0E-WAY L1NE OF SAID ASH
MEADOW DRIVE;
S 00° 16'31 "W, 20.70 FEET WITH SAID WEST RIGHT-OF-WAY L1NE;
S 86°30'S0"W, 88.65 FEET DEPARTING SAID RIGHT-OF-WAY L1NE;
S 75°O1'S8"W, 72.08 FEET;
S 67°43'06"W, 72.08 FEET;
S 60°39'32"W, 68.68 FEET;
S 61 ° 10' 18"W, 56.25 FEET;
S 70°32'19"W, 56.52 FEET;
S 82°06'45"W, 56.56 FEET;
N 89°43'30"W, 178.15 FEET;
S 75°04'S2"W, 62.17 FEET;
N 89°43'30"W, 180.00 FEET;
N 78°34'11"W, 66.25 FEET;
N 89°43'30"W, 65.00 FEET;
N 84°57'41 "W, 60.21 FEET;
THENCE N 89°43'30"W, 185.00 FEET TO THE PO1NT OF BEGINNING AND
CONTAINING 878,496 SQUARE FEET OR 20.168 ACRES OF LAND MORE OR LESS.
THIS DESCRIPTION IS FOR INFORMATIONAL PURPOSES ONLY
Peloton Job No. 10_HWR002
Creekwood
G:\COMMON�PROJECTS\CREEKWOOD�PHASE 4�ENGINEERING\FINAL-AMENDED
PLATS\CREEKWOOD4-PLAT_LEG20130419.DOCX
Apri123, 2013
Page 2 of 2
���hz �- �
�
�
a
v
0
0
3
�
U
¢
�
�
��h � ��. �