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HomeMy WebLinkAboutContract 45698 CITY CONTRACT . . COMPLETION AGREEMENT This Completion Agreement ("Agreement) is made and entered into by and among the City of Fort Worth ("City"), and VLC, INC., a Texas CORPORATION("Developer"), and FRINGE BENEFIT LIFE INSURANCE ("Lender"), effective as of MAY 10, 2014. The City, the Developer and the Lender are hereinafter collectively called the "Parties". ITNESSET : WHEREAS, the Developer owns that certain tract of real property that contains approximately 7.878 ACRES 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 FP013-077or FS_; and WHEREAS, the Developer and the City have entered into a Community Facilities Agreement relating to the development of _THE VILLAGES OF EAGLE MOUNTAIN, PHASE ONE, BLOCKS 1, 9, 10 & 11 (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 ;:0 Hard Costs (which term is hereinafter defined) subject to, and in accordance M C-) with, the terms, provisions and conditions of this Agreement; and ,-ten 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 m o collectively called the "Plans"); and pp.imi..w.m...iou.».ew �. 9,,,. f° iC1AL R r ';ORD '"`T,, WOR"nt rx 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 YOUR HUNDRED FIFTY FIVE THOUSAND THREE HUNDRED AND SEVENTY-FIVE CENTS Dollars ($455,300.75), hereinafter called the "Completion Amount". Notwithstanding the foregoing, it is acknowledged that the actual costs of completion o f t he 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 t o t he 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 t o t he 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 can the actual costs of construction and installation of the Community Facilities. To the extent that advances under the Loan are fort payment of and 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 t o t his Agreement. All such retainage withheld., to the extent it is attributable to Hard Costs, shall also reduce the Completion Amount dollar for dollar. All retains withheld by the Lender for and Costs that are advanced t o t he City pursuant to this Agreement shall be released to the City as provided in the Texas Property Code upon expiration o f t he statutory retains period. 4. Completion by the Devel2per. 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 on acceptance by the City o f t he 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 o f t he 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 o f t he 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 o f t his 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 Lender does not request the City to complete 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. 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 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 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 1 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 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: 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 @fortworthtexas.gov Confirmation Number: 817-392-2239 and/or Attention: CFA Division Jana Knight, Administrative Assistant Email: Jana.Knight@ 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: 817-392-7607 (ii) Notice to the Developer shall be addressed and delivered as follows: VLMC, INC., TIMOTHY H. FLEET 3045 LACKLAND ROAD FORT WORTH, TEXAS 76116, 817-717-7136 (iii) Notice to the Lender shall be addressed and delivered as follows: FRINGE BENEFIT LIFE INSURANCE COMPANY, KELLY KELLER 2901 MORTON STREET FORT WORTH, TEXAS 76102, 817-885-8223 Email: 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) Executed IN QUADRUPLICATE by the Parties hereto, CITY OF FORT WORTH: DEVELOPER: .. ......... Fernando Costa &044m hy H.Fleet Assistant City Manager Title: President Date: Date: &I A/A .......... APPROVED AST FORM: LENDER: Fringe Benefit Life Insurance goug as ,Blac a m i-1-1 . Brooks Assistant City Attorney Title: Vice President ATTEs"r: fo/? 0, W.000000 , % A.-top 41 % "f< "S as Ci�ty 4Sec�reta M&C: Date: F r IAL OFIC RECORn y W A]R CITY SECRETARY to T rX .............. Timothy H. Fleet, 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 Timothy H. Flee( GUARA R By: Name: k Title. _ LIST OF EXHIBITS TO THE COMPLETION AGREEMENT EXHIBIT A - LEGAL DESCRIPTION EXHIBIT B - APPROVED BUDGET EXHIBIT A STATE OF TEXAS COUNTY OF TARRANT Whereas Tabernacle of Praise of fort Worth,Inc.is sole owner of a tract of land described in a deed recorded in County Clerk's Instr went Number 0202241357,Deed Records, Tarrant County,Texas being all of Lot 1,Block 2,Rolling Hills Estates,an addition to the City of Benbrook as shown on the plat record d In Volume 388-178,Page 181,Plat Records,Tarrant County,Texas, Said Lot 1 being more particularly described as follows: Being a tract of land out of the A 5 Roberts Survey,Abstract No.1262 and situated in the City of Fort Worth,Tarrant County,Texas,said tract being a portion of the tract described in the deed to Cheyenne Ridge Partners,ltd.recorded as Document No.D203134393 in said Deed Records and being more particularly described by metes and bounds as follows: Beginning at a 1/2 inch"MILLER 5665"capped steel rod set for the southwest corner of Lot 16,Block J of Cheyenne Ridge an addition to the City of Fort Worth,Texas according to the plat thereof recorded in Cabinet A,Slide 9392 of the Plat Records of Tarrant County,Texas; Thence South 89 degrees 47 minutes 24 seconds East with the southerly boundary line of sail Lot 16 a distance of 146.42 feet to a 1/2 inch"MILLER 5665"capped steel rod set for the southeast corner of said Lot 16,said rod being in the southerly right-of-way line of Apalachee Trail and also being in a curve to the left whose center bears North 45 degrees 53 minutes 03 seconds East at 125.00 feet; Thence southeasterly with said right-of-way line and said curve through a central angle of 01 degree 40 minutes 34 seconds and an arc length of 3.66 feet; Thence South 32 degrees 40 minutes 09 seconds West continuing with said southerly right-of-way line a distance of 16.68 feet; Thence South 57 degrees 19 minutes 50 seconds East continuing with said southerly right-of-way line a distance of 50.00 feet; Thence North 32 degrees 40 minutes 09 seconds East continuing with said southerly right-of-way line a distance of 16.68 feet to the beginning of a curve to the left whose center bears North 21 degrees 08 minutes 03 seconds East at 125.00 feet; Thence easterly continuing with said southerly right-of-way line and said curve through a central angle of 20 degrees 24 minutes 40 seconds and an arc length of 44.53 feet to a 1/2 inch"MILLER 5665"capped steel rod set for the end of said curve; Thence South 89 degrees 16 minutes 36 seconds East continuing with said southerly right-of-way line a distance of 46.15 feet to a 1/2 inch"MILLER 5665"capped steel rod set for the northwest corner of Lot 19,Block K,Cheyenne Ridge,an addition to the City of Fort Worth,Texas according to the plat thereof recorded in Cabinet A,Slide 10988 of said Plat Records; Thence South 03 degrees 22 minutes 46 seconds East with the westerly boundary line of said Block K a distance of 125.28 feet to a 1/2 Inch"MILLER 5665"capped steel rod set; Thence South 00 degrees 44 minutes 06 seconds West continuing with the westerly boundary line of said Block K a distance of 867.48 feet to a 112 Inch"MILLER 5665"capped steel rod set in the southerly right-of-way line of Hereford Drive; Thence South 89 degrees 16 minutes 36 seconds East with said southerly right-of-way line a distance of 250.20 feet to a 1/2 inch"MILLER 5665"capped steel rod set for the northwest corner of Lot 17,Block C of said addition(A/10988); Thence South 00 degrees 43 minutes 24 seconds West with the westerly boundary line of said Lot 17 a distance of 149.49 feet to a 112 inch steel rod found forthe southwest corner thereof; Thence North 89 degrees 18 minutes 51 seconds West a distance of 250.23 feet to a 1/2 inch"MILLER 5665"capped steel rod set; Thence North 00 degrees 44 minutes 06 seconds East a distance of 73.05 feet to a 1/2 inch"MILLER 5665"capped steel rod set; Thence North 89 degrees 15 minutes 54 seconds West a distance of 110.00 feet to a 1/2 Inch"MILLER 5665"capped steel rod set; Thence South 00 degrees 44 minutes 06 seconds West a distance of 1.11 feet to a 1/2 inch"MILLER 5665"capped steel rod set; Thence North 89 degrees 15 minutes 54 seconds West a distance of 160.13 feet to a 1/2 Inch"MILLER 5665"capped steel rod set; Thence North 00 degrees 43 minutes 30 seconds East a distance of 425.00 feet to a 1/2 inch"MILLER 5665"capped steel rod set; Thence North 09 degrees 12 minutes 46 seconds West a distance of 115.16 feet to a 1/2 inch"MILLER 5665"capped steel rod set; Thence North 00 degrees 43 minutes 30 seconds East a distance of 567.21 feet to the point of beginning and containing 7.878 acres of land as surveyed by Miller Surveying,Inc. in March 2013. TO BE KNOWN AS: Lots 39 thru 53,Block 1,Lots 8 thru 12,Block 9,Lots 1 thru 18,Block 10,and Lots 21 thru 26,Block 11,The Villages at Eagle Mountain F,n addition to the City of Fort Worth,Tarrant County,Texas and do hereby dedicate to the public use forever the easements and rights-of-way as shown hereon. Executed this the _day of .,20__ EXHIBIT B EXHIBIT B COST LIST Section I Water $101,990.00 Sewer $88,953.50 Sub-total $190,943.50 Section 11 Interior Streets $228,950.75 Storm Drains $20, 117.50 Sub-total $249,068.25 Section III Street Lights $14,300.00 Sub-total $14,300.00 TOTAL $454,311.75'