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HomeMy WebLinkAboutContract 44909 (2)_ - ".��.- �' -r �' ;� �_ �. � ;1•. �� COMPLETION AGREEMENT This Completion Agreement ("Agreement) is made and entered into by and among the City of Fort Worth ("City"), and 287/156 Partners, L.P., a TexasLimited Partnership ("Developer"), and Vision Bank-Texas ("Lender"), effective as of ����� __ �_, 2013. 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 10.678 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 013-002; and WHEREAS, the Developer and the City have entered into a Community Facilities Agreement relating to the development of Ridgeview Farms Ph. 3 (hereinafter called the "CFA"); and WHEREAS, the City has rec�uired 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. �'EC�II�E� ,S["P 2 7 Z�i� � ' ,. �•� , � . �. • NOW THEREFORE, for and in consideration of the benefits to be derived from the mutua] 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 reyuired to complete the Community Facilities in the aggregate should not exceed the sum of Six Hundred Seventy Two Thousand Eight Hundred Three Dollars and Ninety-Five Cents ($672,803.95), 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 Page 2 of 12 a 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 bv the Develoner. 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 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 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 Citv. 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 shail 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 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 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 rage a ot !z 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 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 coliateral as it elects in accordance with the Loan Documents. 10. Satisfaction of the Citv Repuirements. 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 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 I 1 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 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 bilis 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 reguirement 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. Miscelianeous. 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 Page 6 of 12 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 Confirmation Number: 817-392-7607 (ii) Notice to the Developer shall be addressed and delivered as follows: 287/156 Partners, L.P., Attn: Jim Melino 8235 Douglas Ave, Suite 650, LB-65 Dallas, TX 75225 (iii) Notice to the Lender shall be addressed and delivered as follows: Vision Bank-Texas, Attn: Tv Maxfield 401 W. Geor�e Bush Freeway, Suite 101 Richardson, TX 75080 A party may change its address for notice upon prior written notice to the other parties pursuant to the terms hereof. Page 7 of 12 C. Texas Law to Apnlv. 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. Headines. 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 8 of I2 Executed IN QUADRUPLICATE by the Parties hereto: urr�z������.�r�.�i��:�r:� l�l�O Fernando Costa Assistant City Manager • ' 7Z�I�1 � _ ��1 • ��� , . _� � � .� {�?;���� Douglas W. Black Assistant City Attorney ATTEST: - —� M&C: �� ►� Date: tz'" S��`t .� L •f * , �e � DEVELOPER: 287/156 Partners, L.P. A Texas Limited Partnership By� A7 J GP Partners, Melino, Partner LENDER: 1�l�o�tF' r�SWf� � %X� � i �`�,,,r �'�{ f�' : • `��� .a,. � '�7�lsC� ��'t'-i-��-��%� ______________, 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 b,y the Loan Documents and the Guaranty Agreement that was executed by ��ii I ����' ��Y�b�, L%� . OFFICIAL RECORD �ITY SECRE�'mRY I Page 9 of 12 � �gi �����' �'� its general partner City Secretary LIST OF EXHIBITS TO THE COMPLETION AGREEMENT EXHIBIT A - EXHIBIT B - LEGAL DESCRIPTION APPROVED BUDGET Page 10 of 12 EXHIBIT A Page 11 of 12 Legal Description Of 10.678 Acres of Land BEING a tract of land situated in the Josiah Walker Survey, Abstract Number 1600, City of Fort Worth, Tarrant County, Texas and being a portion of that tract of land described by deed to 287/156 Partners as recorded in Volume 16397, Page 114, County Records, Tarrant County, Texas. BEGINNING at 5/8 inch iron rod with plastic cap stamped "Carter & Burgess" found in the west line of Ridgeview Farms Phase II, an addition to the City of Fort Worth recorded in Cabinet A, Slide 11279 and being in the north right-of-way line of Albany Drive (a 50' right-of-way) as recorded in Plat Records, Tarrant County, Texas; THENCE with the West line of said Ridgeview Farms Phase II the following bearings and distances; THENCE S 89°26'47"W, 61.56 feet; THENCE S 00° 17' 12"E, 165.69 feet; THENCE S 89°42'48"W, 110.02 feet; THENCE S 00°17'12"E, 150.00 feet; THENCE N 89°42'48"E, 110.02 feet departing said west line, with the south line of lot 4, Block 2, said Ridgeview Farms Phase II, also being the west right-of-way line of Tribute Lane to a 5/8 inch iron rod found; THENCE S 00° 17' 12"E, 70.22 feet with said right-of-way; THENCE S 89°43' 10"W, 130.54 feet departing said west right-of-way; THENCE N 00°16'25"W, 34.53 feet; THENCE S 89°43'35"W, 225.09 feet; THENCE S 00°16'33"E, 290.08 feet; THENCE S 45°15'S4"E, 14.14 feet to a 5/8 inch iron rod with plastic cap stamped "PELOTON" set in the north line of East Harmon Road (a 120' right-of-way); THENCE S 89°44'45"W, 60.00 feet with said north line; THENCE N 00°16'33"W, 300.06 feet departing said north right-of-way line; Peloton Job No. CAMl 1001 S#N/A G:/job/CAM 11001 /sur/legaUCAM 11001 _PA2.docx Tracking No. Ridgeview Farms September 18, 2013 THENCE S 89°43'35"W, 223.04 feet to a 1/2 inch iron rod found at the north west corner of Lot lA-R, Block 22, Ridgeview Farms, an addition to the City of Fort Worth as recorded in Cabinet A, Slide 11931, Plat Records, Tarrant County, Texas, in all a distance of 585.33 feet to a 5/8 inch iron rod with plastic cap stamped "PELOTON" set; THENCE N 00°33'25"W, 456.56 feet departing the north line of said LIA-R Block 22, Ridgeview Farms to a 5/8 inch iron rod with plastic cap stamped "PELOTON" set in the south line of Lot l, Block 1, Western Currency Facility an addition to the City of Fort Worth as recorded in Volume 388-216, Page 70, Plat Records, Tarrant County, Texas, THENCE N 89°26'47"E, 1054.18 feet with said south line to a 5/8 inch iron rod stamped "Carter & Burgess" found; THENCE S 00°32' S1 "E, 110.00 feet departing said south line, to the Point of Beginning and containing 465,123 square feet or 10.678 acres of land more or less. Peloton Job No. CAM 11001 S#N/A G:/job/CAM 11001 /sur/legal/CAM 11001_PA2.docx Tracking No. Ridgeview Farms September 18, 2013 EXHIBIT B Page 12 of 12 PEIOTON LAND SOLUTIONS, LLC 5751 KROGER DR, SUITE 185, KELLER, TX 76244(817) 562-3350 CFA EST,MATE FOR � ' 9/4/2013 EXHIBIT A - WATER IMPROVEMENTS fEM # DESCRIPTION 3311.0261 8" PVC Water Line 3312.3003 8" Gate Valve & Box 3312.0001 Fire HydrantAssembiy 9999.0000 1" Irriga5on Service & Meter Box 3311.0001 Cast Iron Fittings 3311.0001 Concrete Blocking - l 3312.2003 Water Service, 1" Ta� 3312.2003 Water Service, 1" line 3305.0109 Trench Safety OTAL ONSITE WATER OFFSITE ITEM # DESCRIPTION 3311.0261 8" PVC Water Line 0241.1510 Relocate Existing Fire 3311.0001 Cast Iron Fittings 3311.0001 Concrete Blocking - T� 3305.0109 Trench Safety TOTAL OFFSITE WATER TOTAL WATER IMPROVEMENTS to Main w/ Meter Box 0 UNIT lF EA EA EA TON CY EA LF LF UNIT LF EA TON CY LF 7 3 1 1.8 3.6 51 968 325 1 0.2 0.4 325 UNIT PRICE 32.00 1,050.00 3,200.00 500.00 100.00 250.00 10.50 0.25 UNIT PRICE 32.00 1,500.00 3,500.00 100.00 0.25 75,776.00 7,350.00 9,600.00 500.00 6,300.00 360.00 12,750.00 10,164.00 592.00 5123,392.00 1,500.00 700.00 40.00 81.25 $12,721.25 �136,173.25 RF3 CFA QTO 20130904 COST ESTIMATE.xisz, Ph3 1 of 6 9/18/2013 PELOTON IAND SOLUTIONS, LLC 5751 KROGER DR, SUITE 185, KELLER, TX 76244(817) 562-3350 CFA EST'MATE FOR � � 9/4/2013 ITEM # DESCRIPTION 3331.4115 8" Sanitary Sewer Main (SDR-26 PVC w/cement stabilized 3331.4115 8" Sanitary Sewer Main (SDR-26 PVC) 3339.1001 Manhole - Std 4' Dia, Ail Depths incl. Conc. Coilar 3301.0101 Manhole - Vacuum Test 3339.0001 Manhole - Coating for Corrosion Protection 3305.0109 Trench Safety 3301.0002 Post Construction CCN TOTA� OFFSITE SANITARY SEWER TOTAL SANITARY IMPROVEMENTS UNIT LF LF EA EA VF LF LF 25 314 2 2 2 339 339 46.00 40.00 3,000.00 50.00 175.00 1.00 1.50 1,150.00 100.00 350.00 339.00 508.50 $21,007.50 �155,517.00 flF3 CFA qT0 20130904 COST ESTIMATE.xisx, Ph3 2 of 6 9/18/2013 EXHIBIT A1 - SANITARY SEWER IMPROVEMENTS PELOTON IAND SOLUTIONS, LLC 5751 KROGER DR, SUITE 185, KEILER, TX 76244(817) 562-3350 CFA EST'MATE FOR � . 9/4/2013 EXHIBIT B - PAVING IMPROVEMENTS ITEM # 3213.0101 3211.0501 3211.0400 3213.0302 3213.0302 3213.0508 fSCRiPTiON " Reinf. Conc. Pvmt. w/ 7" Curbs (29' ' Lime Stabilized Subgrade ydrated lime (30#/SY) , 4" Cona Sidewalk , 4" Cona Sidewalk (Currency Drive) 0241.0900 Remove Barricade R Connect to Ex. Header 2 - 4" PVC Conduit TOTAL ONSITE PAVING ITEM # DESCRIPTION 3213.0101 6" Reinf. Conc. Pvmt. w/ 7" Curbs (29' 3211.0501 6" Lime Stabilized Subgrade 3211.0400 Hydrated Lime (30#/SY) 3213.0508 8/F Ramps (Type H) 0241.1300 Remove Conc Curb & Gutter (Harmon 3471.0001 Traffic Control TOTAL OFFSITE PAVING TOTAL PAVING IMPROVEMENTS UNIT SY SY TON SF SF EA EA LF 7,463 7,983 120.1 2,016 2,445 4 1 100 29.50 2.85 165.00 3.00 3.00 0 500.00 15.00 UNIT QTY SY 67 29.50 SY 59 2.85 TON 0.9 165.00 EA 2 1,000.00 lF 79 15.00 LS 1 2,500.00 20,158.50 22,751.55 19,816.50 6,048.00 7,335.00 4,000.00 500.00 1,500.00 B2,109.55 1,976.50 168.15 148.50 2,000.00 1,185.00 2,500.00 y7,978.15 azso,os�.�o Rf3_CFA QTO_20130904 COST ESTIMATE.xisx, Ph3 3 of 6 9/18/2073 PELOTON IAND SOLUTIONS, LLC 5751 KROGER DR, SUITE 185, KEILER, TX 76244(817) 562-3350 GFA E$'t11N/o17'E FOR RIDGEVIEW PARMS PH. 3 9/4l2013 EXHIBIT 61 - STORM DRAIN IMPROVEMENTS fEM# DESCRIPTION 3341.0305 33" Class III RCP 3341.0302 30" Class III RCP 3341.0205 24" Class III RCP 3349.5001 10' Standard Curb inlet 3349.5003 20' Standard Curb Inlet 3305.0109 Trench Safety OTAL ONSITE STORM DRAIN ITEM # DESCRIPTION 3341.0205 24" Class (II RCP 3305.0109 Trench Safety TOTAL OFFSITE STORM DRAIN TOTAL STORM DRAIN IMPROVEMENTS UNIT LF LF LF EA EA LF UNIT LF LF 176 29 49 2 2 254 147 147 85.00 75.00 60.00 4,200.00 1.00 60.00 1.00 TOTAL 175.00 4,400.00 8,400.00 254.00 3,129.00 8,820.00 147.00 8.967.00 RF3_CFA_QTO_20130904 COST ESTIMATE.xlsx, Ph3 4 af 6 9/18/2013 PEIOTON LAND SOLUTIONS, LLC 5751 KROGER DR, SUITE 185, KELLER, TX 76244(817) 562-3350 CFA ESTIMATE FOR R'DGEv�EW FARMS PH. 3 9/4/2013 EXHIBIT C- STREET LIGHTING IMPROVEMENTS 2605.3011 2" Sch 40 PVC (includes Trenching & Backfiil) 9999.0000 #8 THWN Aluminum 9999.0000 #10 THWN Aluminum 3441.3301 Rdwy Ilium Foundation Type 4 3441.3104 150W MH PC Light Fixture 9999.0000 Single Arm Mount- Furnish and Instail 9999.0000 Rdwy Ilium Type D25-6 Pole - Furnish and Install TOTAL ONSITE STREET LIGHTS DESCRIPTION 2605.3011 2" Sch 40 PVC (inciudes Trenching & 9999.0000 #10 THWN Aluminum TOTA� OFFSITE STREET LIGHTS TOTAL STREET LIGHT IMPROVEMENTS UNIT LF LF lF EA EA EA EA UNIT LF LF 600 $ 315 $ 1,485 11 11 11 11 �� �� 12.00 2.00 2.50 1,000.00 400.00 800.00 1,000.00 12.00 2.50 7,200.00 630.00 3,712.50 11,000.00 4,400.00 11 780.00 487.50 $1,267.50 $48,010.00 RF3_CFA QTO_2013�904 COST ESTIMATE.xisz, Ph3 S of 6 9J38/2013 PELOTON LAND SOLUTIONS, LLC 5751 KROGER DR, SUITE 185, KELLER, TX 76244(817) 562-3350 CFA ESTtMATE FOR 1 � 9/4/2013 ET 7010 :et Name Blades SIGNS UNIT EA 245.00 980.00 RF3 CFA_qi0_20130904 COST ESTIMATE.xlsx, Ph3 6 of 6 9/18/2013