HomeMy WebLinkAboutContract 41435COMPLETION AGREEMENT
CITY SECRETARY 0 j ~ ?<"'
CONTRACT NO. ::1 . ~~ -
This Completion Agreement ("Agreement) is made and entered into by
and among the City of Fort Worth ("City"), and Lake Hollow Corp, a Texas
Corporation (as "Developer "), and BBV A Compass (as "Lender"), effective as
of December 10 , 2010, 200. 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 33.460 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 de v elop the Property as an
addition to the City through plat FPOl0-032 or FS; and
WHEREAS , the Developer and the City have entered into a Community
Facilities Agreement relating to the development of Marine Creek Ranch
Phase B2 and known as City Project No. 01648 (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 i s hereinafter defined) subject to , and in accordance
with , the terms , provisions and conditions of this Agreement; and
WHEREAS , the De v eloper 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
-1 ' I
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
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 e x ceed the sum of Six Hundred and five thousand nine
hundred and seven and ten cents Dollars ($605 ,907.10), 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. Adjustments to the Completion Amount. The Lender may from
time to time make ad v ances 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
COMPLETION AGRE E M E NT
Oc t o b e r 2008
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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 Communit y Facilities on or before the date for completion that
is established in the Loan Documents pl us thirty (3 0) days (hereinafter called
the "Completion Date "), in accordance with the CF A , the Plans that are
approved by the Lender and the City and all documents evidencing or
securing the Loan (which documents are hereinafter collecti v ely 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
de v elopment 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 da y s from receipt of Lender 's request , notify Lender that it will
undertake to complete the Communit y Facilities and the City shall then
commence , pursue , and complete the Community Facilities m 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.
CO M PLETION AG R EEMENT
Oc t ober 2008
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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 an y 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 m
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 Communit y Facilities , any Hard Costs it e x pends shall , dollar for dollar ,
reduce the Completion Amount.
CO M PLETION AG R EEMENT
Octo b er 2008
P age 4 of 1 2
8. Easements. In the event the Cit y or the Lender undertakes the
completion of the Communit y Facilities , the Developer (and to the extent
necessary the Lender ) grants to the City and the Lender open access to the
Property and shall e x ecute 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 con s truction of the Commun i ty Facilities in accordance
with this Agreement. To the extent requested by the City and the Lender ,
written temporar y construction easements in form acceptable to the City and
the Lender shall be e x ecuted 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 m 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 m this Agreement satisfy all
requirements of the City with respect to payment and performance bonds or
other requirements for securit y 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 w ritten 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 r equire the Cit y to release the plat.
COMPLETION AGREEMENT
Oc t o b e r 2008
Page 5 of 1 2
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 b y 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 m 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:
COMPLETION AGREEMENT
Octo b er 2008
Page 6 of 1 2
and/or
City of Fort Worth
Planning and Development Department
1000 Throckmorton Street
Fort Worth , Texas 76102
Attention: CFA Division
Catherine Davidson , Administrator
Email: Catherine.Davidson @ fortworthgov .org
Confirmation Number: 817-392-8188
Attention: CFA Division
Jana Knight , Administrative Assistant
Email: J ana.Knight @ fortworthgov.org
Confirmation Number: 817-392-2025
With a copy thereof addressed and delivered as follows:
Amy J. Ramsey
Office of the City Attorney
City of Fort Worth
1000 Throckmorton Street
Fort Worth , Texas 76102
Confirmation Number: 817-392-761 7
(ii) Notice to the Developer shall be addressed and delivered as
follows:
Lake Hollow Corp.,
Attn: Randal D. Johnson Vice President
P.O. Box 121969 Fort Worth , Texas 76121
(iii) Notice to the Lender shall be addressed and delivered as follows:
BBV A Compass
Attn: Francis J. McCarthy Senior Vice President
2525 Ridgmar Blvd. Fort Worth , Texas 76116
Email: Francis .McCarthy @ bbvacompass.com
COMPLET I ON AGREEMENT
Oc t obe r 2008
P age 7 of 12
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 an y reason 1s 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 onl y 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 convemence purposes only and do not constitute
substantive matters to be considered in construing the terms and
provisions of this Agreement.
(R E MAIND E R OF PAGE INT E NTIONALLY L E FT BLANK)
COMPLETION AGR EE MENT
Octo b e r 2008
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Executed by the Parties in five counterparts , each of which shall be
deemed to be an original , to be effective as of the date first stated above .
CITY OF FORT WORTH
By :
Fernando Costa
Assistant City Manager
DEVELOPER
,.·1
/'
By:;t
Name :Randal D . J
Title: Vice President
LENDER
Attested by :
CY\t1;t ~~
arty Hendrix,~itySecretaty
Lake Hollow Corp., the "Guarantor " of the Development Loan, is
e x ecuting 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 Randal D . Johnson.
NO M&C REQUIRED
COMPLETION AGREEMENT
Oc t o b e r 2008
P age 9 of 1 2
DEVELOPER
,/}
/'
By:~~~~~~~~~~
Name:Randal D. Jo
Title: Vice President
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
LIST OF EXHIBITS TO THE COMPLETION AGREEMENT
EXHIBIT A -
EXHIBIT B -
CO M PLETION AGREEMENT
O ct obe r 2008
Page 1 0 of 1 2
LEGAL DESCRIPTION
APPROVED BUDGET
EXHIBIT "A"
MARINE CREEK RANCH , PHASE Bl
CITY OF FORT WORTH , TARRA NT COUNT Y, TE XAS
55
54
53
52
51
EAGLE MOUNTAIN-SAGINAW
INDEPENDENT SCHOOL DISTRICT
DOC. 203323312
D.R.T.C.T.
20 20
19 2 19 2
18 3 18 3
17 4 17 4
16 5 16 5
6
7 14 7
13 8 13 8
12 9 12 9
11 10 11 10
STRIPER DRIVE
42 41 40 39 38 37 36 35 34 33
A
12 7
11 8
10 9
32 31 30 29 28
29c 20
28 21
27 22
26 23
25 24
27 26 25 24 23
EX .
PHASE A
I
j
LOTS 1-55 , B LOCK A;
LOTS 1-32, BLOCK B;
LOTS 1-33, BLOCK C;
LOTS 1-19, BLOCK D;
LO TS 1-20, BLOCK E;
LOTS 1-20, BLOCK F;
179 SINGLE FAM IL Y LOTS
33.460 ACRES
...
Quote To:
Phone:
Email:
ITEM
I
2
3
4
5
I
2
I
2
3
4
I
2
3
4
5
G RA ND TOTAL
EXHIBIT "B"
JACKSON CONSTRUCTION, LTD .
5 112 S un Va ll ey Drive
Fo rt Wo rth , Texas 76 11 9
Contact: Steve Ha be rstro h
Pho ne : 817-572 -3303
Ema il : steve@jacksonco nstruction.net
Mr. Randal Johnson
Lake Hollw Corporation
Fort Worth, Texas 76121
817-797-7977
rj @ havener.com
DESCRIPTION
INTERIOR MANHOLE PROTECTIVE COATING
VACUUM TEST MANHOLES
RECONNECT EXlSTING SE WER MAIN
TV INSPECT SANlT ARY SEWER MAIN
CLEAN SANlTARY SEWER MAIN
T OTAL FO R SEWER
RECONNECT EXISTING WATER MAIN
PRESS URIZE/STERILlZE WATER MAIN
TO TAL WATER
STD. 20' CURB INLET (ST AGE 2)
STD. 1 O' CURB INLET (ST AGE 2)
CH-PW-0 STORM DRAIN HEADWALL
NCTCOG TYPE A 24" ROCK RIP RAP
T OTAL DRAINAGE
RE-ESTABLISH STREET GRADE
6 " LIME ST AB IL!ZE D SUBGRADE
TREATMENT
LIME MATERIAL FOR SUBGRADE 30LB/SY
7" 3600# STREET PA YING W /CURB
WHEEL CHA IR RAMPS
TOTAL PAVING
Job Name :
Revision Date:
QUANTITY
8.30
19 .00
6.00
5,607.00
5 ,607.00
6.00
5 ,66 9 .00
1.00
5 .00
1.00
25 .00
20,273 .00
20,2 73 .00
304.00
18 ,905.00
12.00
11 /11 /2 010 3 :I0:43PM
MARINE CREEK RANCH, PHASE 2
November 12 , 2010
UNIT UNIT PRICE AMOUNT
VF 200.00 1,660.00
EA 100.00 1,900.00
EA 600.00 3,600.00
LF 1.00 5,607 .00
LF 1.10 6,167.70
$1 8,934.70
EA 1,000.00 6,000.00
LF 1.00 5,66 9 .00
$11 ,669.00
EA 2,100.00 2,100.00
EA 1,350.00 6,750.00
E A 1,700.00 1,700.00
SY 105 .00 2,625.00
$13 ,175.00
SY 1.15 23 ,313 .95
SY 2 .15 43,586 .95
TN 140.00 42 ,560.00
SY 23 .50 444,267.50
EA 700.00 8 ,400 .00
$56 2,12 8.40
$605,907 .10
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