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HomeMy WebLinkAboutContract 44703 (2)CITY SECRETARY7j COMPLETION AGREEMENT C NTRACTNO. "1t170j This Completion Agreement ("Agreement) is made and entered into by and among the City of Fort Worth ("City"), and Steadman Farms, LLC, a Texas limited liability company("Developer"), and Texas Capital Bank, National Association, a national banking corporation ("Lender"), effective as of L k9La IA, 20n. 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 approximately160.063 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- 011; and WHEREAS, the Developer and the City have entered into a Community Facilities Agreement relating to the development of Steadman Farms Phase 1 (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 RECEIVED AUG 13 2013 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 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 Three million, Three hundred and seventv-one thousand, Eight hundred eighty Dollars and Fortv-five Cents ($3,371,880.45), 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 Page 2 of 12 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 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. Page 3 of 12 If the City does not timely elect to complete the construction of the Community Facilities, then the Lender may at its election terminate this 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. Page 4 of 12 8. Easements. In the event the City or the Lender undertakes the completion of the Community Facilities, 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 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 RiEhts. 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 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. Page 5 of 12 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 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: Page 6 of 12 and/or 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 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: Steadman Farms, LLC c/o Hanover Property Company 3001 Knox Street, Suite 207 Dallas, TX 75205 Notice to the Lender shall be addressed and delivered as follows: Texas Capital Bank, National Association; 2350 Lakeside Boulevard, Suite 800 Page 7 of 12 Richardson, Texas 75082; 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. Le2a1 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 Aireements 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) Page 8 of 12 IN TESTIMONY WHEREOF, the City of Fort Worth has caused this instrument to be executed in quadruplicate in its name and on its behalf by its Assistant City Manager, attested by its City Secretary, with the corporate seal of the City affixed, and said Developer has executed this instrument in quadruplicate, at Fort Worth, Texas this � L/%6'� day of �L� , 20 /- . CITY OF FORT WORTH: Fernando Costa Assistant Ci y M nager Date: $ APPROVED AS TO FORM: Douglas W. Black Assistant City Attorney ATTEST: ar$' J. K City Secretary M&C: kik Date: DEVELOPER: Steadman Farms, LLC a Texas limited liability company By: Hanover Services Group, Inc. a Texas corporation, its manager Name: Richard E LeBlanc Title: President Date: 7/92 S/r3 LENDER: Texas Capital Bank, National Association Name Title: ede A-tttiey svr Page 9 of 12 LIST OF EXHIBITS TO THE COMPLETION AGREEMENT EXHIBIT A - LEGAL DESCRIPTION EXHIBIT B - APPROVED BUDGET Page 10 of 12 EXHIBIT A LEGAL. DESCRIPTION BEING o parcel of land located in the City of Fort Worth, Tarrant County. Texos, a port of the Jose Chirino Survey, Abstract No. 265, and being a part of a coiled 98.371 acre tract of land described in a warranty deed to Steadman Forme, LLC (Formerly. Christ's Haven Realty, LLC) as recorded in Document No. 0212309023, Tarrant County Deed Records, and being further described os follows: BEGINNING at a one-hoif Inch iron set at the northeast corner of sold 96.371 acre tract of land, sold comer being the intersection of the south right-of-way line of Keller Haslet Rood (o vorloble width right-of-way) with the existing west right-of-way line of Park Vista Boulevard (an existing 55 foot wide right-of-way, a proposed 110 foot wide right-of-way), said point being the northwest comer of a called 0.669 acre tract of land described as Tract 2, o 55 foot wide right-of-way dedication for Pork Vista Boulevard according to the plat of Timberland Section II -A, an addition to the City of Fort Worth as recorded In Cabinet A, Slide 11816, Tarrant County Plat Records; THENCE along the existing west right-of-way line of Park Vista Boulevord as follows: South 00 degrees 22 minutes 59 seconds West, 543.16 feet to a one-half inch Iron rod set at the southwest comer of sold 0.669 acre tract of land, said point being the northwest corner of a called 0.348 acre tract of lond described as a 55 foot right-of-way dedication for Pork Visto Boulevard according to the plot of Timberland Section IA, an addition to the City of Fort Worth as recorded in Cabinet A, Slide 10591, Tarrant County Plat Records; South 00 degrees 23 minutes 00 seconds West, 1494.67 feet to a one-half Inch Iron rod set at the northwest corner of a called 0.833 acre tract of land described In o deed dedication to the City of Fort Worth as recorded In Document Number D206155474, Tarrant County Deed Records; Southwesterly, 240.84 feet along a curve to the right which has a central angle of 13 degrees 08 minutes 32 seconds, a radius of 1050.00 feet, o tongent of 120.95 feet, and whose chord bears South 06 degrees 57 minutes 14 seconds West, 240.32 feet to a one-half inch iron rod set for comer, Southwesterly. 240.84 feet along a curve to the left which has a central angle of 13 degrees 08 minutes 32 seconds, a radius of 1050.00 feet, a tongent of 120.95 feet, and whose chord bears South 06 degrees 57 minutes 14 seconds West, 240.32 feet to a one-half Inch iron rod set for comer, South 00 degrees 22 minutes 58 seconds West, 100.38 feet to a one-half inch iron rod set for comer, THENCE North 89 degrees 35 minutes 40 seconds West, 252.97 feet to a one-half Inch iron rod set for comer THENCE North 89 degrees 37 minutes 02 seconds West, 75.65 feet to a one-half Inch Iron rod set for comer, THENCE Southwesterly, 102.12 feet along a curve to the left which has a central angle of 09 degrees 00 minutes 05 seconds, a radius of 650.00 feet, o tangent of 51.18 feet, and whose chord bears South 85 degrees 52 minutes 55 seconds West, 102.12 feat to a one-half inch Iron rod set for comer; THENCE Southwesterly. 54.99 feet along a curve to the right which hos a central angle of 09 degrees 00 minutes 05 seconds, a radius of 349.99 feet, a tangent of 27.55 feet, and whose chord bears South 85 degrees 52 minutes 55 seconds West, 54.93 feet to a one-hoif inch Iron rod set for comer, THENCE North 89 degrees 37 minutes 00 seconds West, 835.01 feet to a one-half Inch iron rod set for comer, THENCE South 00 degrees 23 minutes 00 seconds West, 15.38 feet to a one-half inch iron rod set for comer. THENCE North 89 degrees 15 minutes 41 seconds West, 175.27 feet to a one-half Inch Iron rod set for corner in the west One of said 98.371 acre tract of land. said point being In the emit right-of-way line of N Caytor Road (a variable width right-of-way); THENCE North 00 degrees 17 minutes 15 seconds East, 250.50 feet along the west line of said 96.371 acre tract of land and along the east right-of-way line of N Caytor Road to a one-half inch Iron rod set for comer; THENCE along the west line of said 96.371 acre tract of land as follows: South 89 degrees 37 minutes 02 seconds East, 35.00 feet to a one-half Inch Iron rod set for comer, North 81 degrees 50 minutes 33 seconds East, 207.30 feet to a one-half Inch Iron rod set for comer, North 00 degrees 22 minutes 58 seconds Eoet, 71.98 feet to 0 one-half Inch iron rod set for comer, South 79 degrees 33 minutes 37 seconds East, 218.07 feet to a one-half Inch iron rod set for comer, North 00 degrees 23 minutes 00 seconds East, 314.31 feet to a one-half inch iron rod set for corner; South 89 degrees 37 minutes 00 seconds East, 141.72 feet to a one-half Inch Iron rod set for corner; North 00 degrees 23 minutes 00 seconds East, 415.00 feet to a one-half Inch Iron rod set for comer, South 89 degrees 37 minutes 00 seconds East. 125.00 feet to a one-half Inch iron rod set for comer; North 00 degrees 23 minutes 00 seconds East, 670.00 feet to a one-half Inch iron rod set for comer, North 89 degrees 37 minutes 00 seconds East, 125.00 feet to a one-half Inch Iron rod set for comer, North 00 degrees 23 minutes 00 seconds East, 933.89 feet to a one-half inch iron rod set at the northwest comer of said 96.371 acre tract of land and In the south right-of-way line of Keller Haslet Road; THENCE South 89 degrees 14 minutes 39 seconds East, 949.37 feet along the north line of said 96.371 acre tract of land and along the south line of sold Keller Haslet Road to the POINT OF BEGINNING and containing 2,616,352 square feet or 60.063 acres of land. BASIS OF BEARINGS: The Bearings shown hereon are based on the beorings shown on the Timberland Phase II -A Addition, an addition to the City of Fort Worth es recorded in Cabinet A, Slide 11816, Tarrant County Plot Records. Page 11 of 12 EXHIBIT B Approved Budget for Hard Costs Water $658,870.80 Sanitary Sewer $461,273.50 Streets $1,192,367.10 Storm Drain $992,526.55 Street Lights $66,842.50 Total $3,371,880.45 Page 12 of 12