HomeMy WebLinkAboutContract 46262 X96`, EC
COMPLETION AGREEMENT
This Completion Agreement ("Agreement) is made and entered into by
and among the City of Fort Worth ("City"), and FW Rivercrest Bend, a
Limited Liability Corp oration("Developer"), BOKF, NA dba Bank of Texas
("Lender"), effective as of November 19, 2014. 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 13.826 ;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 14-038 or FS ; and
WHEREAS, the Developer and the City have entered into a Community
Facilities Agreement relating to the development of Rivercrest Addition
informally called "Rivercrest Bend"(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
WHEREAS, the Parties desire to set forth the terms and conditions of
such accommodations as are described above.
OFFICIAL RECORD
CITY SECRETARY 1 RECEIVED DEC 16 pro
FT.WORTH,TX
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 five hundred thirty-seven thousand
four hundred sixty-two Dollars ($537462.25), 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
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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.
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
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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.
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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 11 shall not require the City to release the plat.
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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:
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City of Fort Worth
Planning and Development Department
1000 Throckmorton Street
Fort Worth, Texas 76102
Attention: CFA Division
Julie Westerman, Development Manager
Email: Julie.Westerman @fortworthtexas.gov
Confirmation Number: 817-392-2677
and/or
Attention: CFA Division
Email: cfa @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: 817-392-7615
(ii) Notice to the Developer shall be addressed and delivered as
follows:
FW Rivercrest Bend, LLC
2929 W. 5t1i Street, Suite A
Fort Worth, TX 76107
(iii) Notice to the Lender shall be addressed and delivered as follows:
BOKF, NA dba Bank of Texas
801 Cherry Street, Suite 3325
Fort Worth, TX 76102
Email: rdillard @bankoftexas.com
A party may change its address for notice upon prior written notice to the
other parties pursuant to the terms hereof.
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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)
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Executed IN QUADRUPLICATE by the Parties hereto:
CITY OF FORT WORTH: DEVELOPER:
Fernando Costa Name: MICHAEL DIKE
Assistant City Manager Title: MANAGER
Date: /.Z�G��4 Date:
APPROVED AS TO FORM: LENDER:
Douglas W. Black Name: RACHEL DILLARD
Assistant City Attorney Title: ASST VICE PRESIDENT
ATTEST:
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Mary J. Kays
City Secretary
M&C: A P-
Date:
L7OFFICOAL RECD D E CRETAR'y 9 ('40RIrH rX
Michael Dike, 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 FW Rivercrest Bend, LLC..
GUARANTOR
By:
Name: MICHAEL DIKE
Title: MANAGER
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LIST OF EXHIBITS TO THE COMPLETION AGREEMENT
EXHIBIT A - LEGAL DESCRIPTION
EXHIBIT B - APPROVED BUDGET
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EXHIBIT A
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LEGAL DESCRIPTION
Being a 14 .449 acre tract of land situated in the Britton D. Alford Survey,
Abstract No. 37, and the Nathan H. Carroll Survey, Abstract No, 264, of Tarrant
County, Texas, and being part of those certain twelve tracts of land as conveyed
by deed to Richard A. Mitchell, Judson P. Germany, Nancy & Louis Corona, and
Rudena S. Kudlac as recorded in Plats in Volume 310, Page 92, Volume 388-X, Page
21, and Volume 388-9, Page 495, Rivsrcrest Addition, an addition to the City of
Fort Worth, Texas, according to Deed Records of Tarrant County, Texas, and being
more particularly described by metes and' bounds as follows;
Beginning at a found 7/8" iron rod, located on the West R.O.W. line of Athenia
Lane, approximately 78.14 feet South of the Southwest intersection point of
Athenia Lane and Slate Street;
THENCE S 00 001133" E, a distance of 155.36`, to a set 1/2" iron rod with yellow
cap, for a corner;
THENCE S 89 058151" W, a distance of 95.00' , to a set 1/2" iron rod with yellow
cap, for a corner;
THENCE S 00 001133" E, a distance of 26. 791 , to a set 1/2" iron rod with yellow
cap, for a corner;
THENCE N 89 058151" E, a distance of 130.45', to a point in the intersection of
Athenia Lane and Scott Lane;
THENCE S 00 003140" E, a distance of 580.54 ' , to a point where a 1/2" iron rod
bears S 89°34100" W, 0.38' for a corner;
THENCE S 89 034100" W, a distance of 124 .36', to a set 112" iron rod with yellow
cap, for a corner;
THENCE S 00 026100" W, a distance of 155. 90' , to a set 1/2" iron rod with yellow
cap, for a corner;
THENCE S 87 020108" W, a distance of 148.011 , to a set 1/2" iron rod with yellow
cap, for a corner;
THENCE S 87 005151" W, a distance of 80.00 , to a found 5/8" iron rod for a
corner;
THENCE N 74 043115" W, a distance of 105.45', to a found 5/8" iron rod for a
corner;
THENCE N 56 013108" W, a distance of 108.221 , to a found 5/8" iron rod for a
corner;
THENCE N 22 009125" W, a distance of 111. 66 , to a set 1/2" iron rod with yellow
cap, for a corner;
THENCE N 26 008109" W, a distance of 67. 90' , to a set 1/2" iron rod with yellow
cap, for a corner;
THENCE N 26 008109" W, a distance of 283.601 , to a set 1/2" iron rod with yellow
cap, for a corner;
THENCE N 30 030109" W, a distance of 7, 63' , to a set 1/2" iron rod with yellow
cap, for a corner;
THENCE N 30023134" W, a distance of 271.86, to a set 112" iron rod with yellow
cap, for a corner;
THENCE N 89 058151" E, a distance of 25.28' , to a set 1/2" iron rod with yellow
cap, for a corner;
THENCE N 03 043100" W, a distance of 142.58' , to a set 1/2" iron rod with yellow
cap, for a corner;
THENCE N 89 058151" E, passing a found 1/2" iron rod at 126.08' and at 309.59'
and continuing in all a distance of 506.04 ' , to a set 1/2" iron rod with yellow
cap, for a corner;
THENCE N 00 001133" W, a distance of 118.00' , to a set 1/2" iron rod with yellow
cap, for a corner, located on the South Right-of--Way line of Slate street, a
50.00' R.O.W. ;
THENCE N 89 058151" E, CONTINUING ALONG SAID South Right-of-Way line a distance
of 230.11', to a set 1/2" iron rod with yellow cap, for a corner;
THENCE S 00 001133" E, a distance of 78. 14 ' , to a set 1/2" iron rod with yellow
cap, for a corner;
THENCE N 89 058151" E, a distance of 95.00' , to The Point of Beginning and
containing 14 . 445 Grid ACRES, and 14 . 449 Surface ACRES of land more or less.
OF
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CHRISTOPHER K.BRADIEY
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EXHIBIT B
APPROVED BUDGET
Section I
Water $168155.00
Sewer $191150.00
Subtotal $359305.25
Section II
Interior Streets $91877.00
Storm Drains $86280.00
Subtotal $178157.00
Section III
Street Lights $0.00
Sub-total $0.00
TOTAL $537462.25
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