HomeMy WebLinkAboutContract 46264 City SEMAW
CONTRACT N®.
COMPLETION AGREEMENT
This Completion Agreement ("Agreement) is made and entered into by
and among the City of Fort Worth ("City"), and LSLR-BY 4, LLCL, a Texas
Limited Liability Company 1("Developer"), and FROST BANKI("Lender"),
effective as of the date subscribed by the City's City Manager or Assistant
City Manager. 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 24.55 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 FPI 014-0181 or FSL; and
WHEREAS, the Developer and the City have entered into a Community
Facilities Agreement relating to the development of LSkyline Ranch
Blocksl1, 12 and 13 (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, storm drain, and the
water and sewer utilities for the development of the Property (herein
collectively called the "Improvements"), 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
OFFICIAL RECORD
CITY SECRETARY
FT. NORTH, ` X RELEI VED DEC
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 ($10.00) and other good
and valuable consideration, the receipt, adequacy and sufficiency of which
are hereby acknowledged, the Parties agree as follows:
1 . Recitals. The foregoing recitals are true, correct and complete
and constitute the basis for this Agreement and they are incorporated into this
Agreement for all purposes.
2. The Completion Amount. The City and the Developer agree that
the Hard Costs required to complete the Improvements in the aggregate
should not exceed the sum of LSeven Hundred Thirty Five Thousand Two
Hundred Forty-Twol Dollars ($J 735,242.00b, hereinafter called the
"Completion Amount". Notwithstanding the foregoing, it is acknowledged
that the actual costs of completion of the Improvements 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. Reductions in 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
Improvements 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 Improvements. To the extent that advances under the Loan are for the
Page 2 of 15
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 Improvements 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
Improvements, including punch list items, which acceptance shall not be
unreasonably withheld, conditioned or delayed. 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 any of the Loan
Documents, 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 Improvements and the
City shall then commence, pursue, and complete the Improvements 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
Improvements.
Page 3 of 15
If the City does not timely elect to complete the construction of the
Improvements or if the Lender does not request the City to complete
construction of the Improvements, then the Lender may at its election
terminate this Agreement, and/or at its option, proceed to complete the
Improvements, or foreclose on any of its collateral, or take any and all such
action as may be provided for 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 Improvements, 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 Improvements.
In the event the cost to complete the Improvements exceeds the moneys
transferred to the City, City shall notify Lender and Developer in writing of
the need for additional funds. The additional funds required to complete the
Improvements 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
Improvements, in which event City shall use the Hard Costs funds in its
possession to pay the contractor(s) all funds due it/them for work actually
completed. Any remaining undisbursed Hard Costs shall be returned to
Lender within thirty (30) days after the contractor(s) have been paid in full
for work to date..
7. Completion by the Lender. The Lender may, at its discretion,
but shall not be obligated to, undertake to complete the Improvements if there
is any default under any of the Loan Documents in lieu of requesting the City
to complete the Improvements. If the Lender elects to complete the
Page 4 of 15
Improvements, any Hard Costs it expends shall, dollar for dollar, reduce the
Completion Amount. Any retainage, when paid, shall also, dollar for dollar,
reduce the Completion Amount.
8. Easements. In the event the City or the Lender undertakes the
completion of the Improvements, 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 Improvements 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 the
requirements of the City with respect to Developer's performance bond or
other financial security in connection with the development of the Property
and the completion of the Improvements 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 Improvements; (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
Page 5 of 15
by paragraph 12 hereof and termination pursuant to (b) or (c) of this
paragraph 11 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 Improvements 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 or Lender 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 or the
Improvements; 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.
Page 6 of 15
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
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
Email: Doug.black @fortworthtexas.gov
Confirmation Number: 817-392-7615
(ii) Notice to the Developer shall be addressed and delivered as
follows:
JSLR-BY 4, LLC Attn: Bryan Holland
11203 White Chapel Blvd., Ste. 2501
[Southlake, TX 76092 1
(iii) Notice to the Lender shall be addressed and delivered as follows:
Page 7 of 15
FROST BANK, Attn: DEREK BUCHANANI
177 Main Street, Ste. 5001
Fort Worth, TX I
Email: Oerek.buchanan @frostbank.corm
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 except as
expressly provided herein in the event Lender requests the City to
complete the Improvements following a default by Developer.
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
Page 8 of 15
substantive matters to be considered in construing the terms and
provisions of this Agreement.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
Page 9 of 15
Executed in QUADRUPLICATE by the Parties hereto:
CITY OF FORT WORTH: DEVELOPER:
Fernando Costa Name�Brjan'Ttotand
Assistant City Manager Title: Member
Date: 12116 1-14 Date:
APPROVED AS TO FORM: LENDER:
Douglas W. Black Name: Derek Buchanan
Assistant City Attorney Title: Assistant Vice President
ATTEST: '
F 01?
Mary J. Kay o
City Secretary * o°0
0
M&C: � -AS
Date:
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Page 10 of 15
�I
Shawn Goff, 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 the said Shawn Goff.
GUA TO
Name: Shawn Goff
I
Page 11 of 15
LIST OF EXHIBITS TO THE COMPLETION AGREEMENT
EXHIBIT A - LEGAL DESCRIPTION
EXHIBIT B - APPROVED BUDGET
Page 12 of 15
EXHIBIT A
Being a tract of land out of the J.F.Elliot Survey,Abstract No.495 and situated in the city of Fort Worth,Texas,
said tract being a portion of that same tract described as Tract Two in the deed to Wilbow-Skyline Development
Corporation,recorded as Volume 17055 Page 258,Deed Records,Tarrant County,Texas and being more
particularly described by metes and bounds as follows:
Beginning at a point for the most northerly northeast corner of said Wilbow tract from which a 1/2 inch steel rod
found bears South 61 degrees 28 minutes 11 seconds West a distance of 0.65',said point being the southeast corner
of a tract of land described in the deed to Texas Electric Service Company,recorded as Volume 5419,Page 795 also
being the southwest corner of a tract of land described in the deed to Texas Electric Service Company,recorded as
Volume 5419,Page 791,and being the northwest corner of a tract of land described in the deed to Bo Peek,Ltd,
recorded as Document No.D204166053,said deed records;
Thence South 00 degrees 07 minutes 43 seconds West with the easterly boundary line of said Wilbow tract and the
westerly boundary line of said Bo Peek tract,at 52.64 feet passing the northwest corner of Lot 1,Block 6,Brookside
at Benbrook Field Phase I, an addition to the City of Benbrook,Texas according to the plat thereof recorded as
Cabinet A, Slide 11728,Plat Records,Tarrant County,Texas,continuing with the easterly boundary line of said
Wilbow tract and the westerly boundary line of said Brookside at Benbrook Field Phase I a total distance of 108.31
feet to a point in Walnut Creek from which a 5/8"steel rod found for the southwest corner of said Lot 1,Block 6
bears South 00 degrees 07 minutes 43 seconds West a distance of 122.46 feet,said rod being in the northerly right-
of-way line of Sterling Drive;
Thence with Walnut Creek the following calls:
South 29 degrees 08 minutes 06 seconds West a distance of 224.82 feet;
South 32 degrees 43 minutes 21 seconds West a distance of 186.58 feet;
South 45 degrees 35 minutes 00 seconds West a distance of 243.11 feet;
South 70 degrees 33 minutes 39 seconds West a distance of 106.10 feet;
South 56 degrees 46 minutes 14 seconds West a distance of 355.79 feet;
South 24 degrees 36 minutes 41 seconds West a distance of 231.85 feet;
South 50 degrees 07 minutes 53 seconds West a distance of 148.78 feet;
South 40 degrees 03 minutes 46 seconds West a distance of 268.70 feet;
South 71 degrees 34 minutes 00 seconds West a distance of 129.82 feet;
North 81 degrees 16 minutes 50 seconds West a distance of 450.94 feet;
South 81 degrees 30 minutes 07 seconds West a distance of 127.34 feet;
South 54 degrees 16 minutes 19 seconds West a distance of 276.01 feet;
South 67 degrees 19 minutes 15 seconds West a distance of 134.34 feet to the southeast corner of
Lot 1X,Block 11, Skyline Ranch Phase I,an addition to the City of Fort Worth,Texas according
to the plat thereof recorded as Cabinet A, Slide 11740,said plat records;
Thence northerly with the easterly boundary line of said Skyline Ranch Phase I the following calls:
Page 13 of 15
North 28 degrees 21 minutes 22 seconds West,at 51.85 feet pass a 5/8"steel rod with cap found
for the northeast corner of said Lot 1X,Block 11 and the southeast corner of Lot 1,Block 11, said
Skyline Ranch Phase I,continuing on a total distance of 221.88 feet to a 1/2'steel rod with cap
stamped"MILLER 5665"set;
South 61 degrees 38 minutes 38 seconds West a distance of 8.86 feet to a 1/2"steel rod with cap
found for the southeast corner of Lot 1, Block 13,said Skyline Ranch Phase 1;
North 28 degrees 21 minutes 22 seconds West a distance of 110.00 feet to a 1/2'steel rod with cap
stamped"MILLER 5665"set for the northeast corner of said Lot 1,Block 13,said rod being in the
northerly boundary line of said Wilbow tract also being in the southerly boundary line of said
Texas Electric Service Company tract,Volume 5419,Page 795;
Thence N 61 degrees 28 minutes 11 seconds East with the northerly boundary line of said Wilbow tract and the
southerly boundary line of said Texas Electric Service Company tract,Volume 5419,Page 795 a distance of
2701.95 feet to the point of beginning and containing 24.5493 acres of land,more or less,as surveyed by Miller
Surveying,Inc. in 2012.
Page 14 of 15
EXHIBIT B
Items Developer's Cost
A. Water and Sewer Construction
1. Water Construction $142,804
2. Sewer Construction $49,800.00
Water and Sewer Construction Total $ 192,604.00
B. TPW Construction
1. Street $ 385,766.00
2. Storm Drain $ 75,141.00
3. Street Lights Installed by Developer $ 81,731.00
TPW Construction Cost Total $ 542,638.00
Total Construction Cost (excluding the fees): $ 735,242.00
Page 15 of 15