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HomeMy WebLinkAboutContract 25883 CITY SECRET CONTRACT NO Y - COMPLETION AGREEMENT This Completion Agreement (hereinafter called the "Agreement") is made and entered into by and among the City of Ft. Worth (hereinafter called the "City"), HOK Joint Venture (hereinafter called the "Developer"), and Southwest Bank (hereinafter called the "Lender")effective as of April 17 , 2000. 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 5.5 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 "Lots 1R-17R &18 BLK 6 and Lots 25-42, BLK 7 Phase II Legacy Village) and WHEREAS, the Developer intends to develop Phase II Legacy Village as an addition to the City; and WHEREAS, the Developer and the City have entered into a Community Facilities Agreement relating to the development of Phase II Legacy Village( 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 Phase II Legacy Village (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 Phase II Legacy Village (Hereinafter collectively called the "Plans"); and 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 One Hundred Ninety Seven Thousand, Six Hundred Fifty Nine ($197,659) (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 AmountThe Lender will from time to time make advances to the Developer for the development of Phase II Legacy Village 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 of Phase II Legacy Village (hereinafter called 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 the portion of such Approved Budget relating to Hard Costs being marked Exhibit B, attached hereto and incorporated herein for all purposes. 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 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. COMPLETION AGREEMENT- Page 2 To keep the City advised of the Hard Costs, the Developer shall promptly deliver to the City those portions of all draw requests delivered to the Lender which contain requests for the payment of Hard Costs and such draw requests shall itemize Hard Costs in such form and detail as shall be reasonably acceptable to the Lender and the City. Upon approval of Lender of any draw request containing requests for Hard Costs to be advanced to the Developer, the Lender shall give notice to the City setting forth the amount of any Hard Costs to be advanced (the "Funding Notice"). The City will be deemed to have approved the proposed advance of Hard Costs by the Lender, unless it so notifies in writing Lender that it objects to such advancement of Hard Costs within three (3) business days of the receipt by the City of the Funding Notice. If the City objects to such advancements of Hard Costs by the Lender, the City will have its own inspector examine and evaluate the construction; then the Lender and the City shall cause their respective inspectors or consultants to cooperate and shall use their best reasonable efforts to settle any dispute over the appropriateness of any advance of Hard Costs. The Developer acknowledges that the Lender's obligation to fund advances under the Loan within a specified time frame shall be deemed waived by the Developer if the city and Lender are in dispute with respect to any requested advance. If any such dispute is not resolved promptly, the two consultants shall agree within five (5) business days on a qualified third party to resolve the dispute whose decision shall be final and binding on all Parties and shall be rendered within five (5) business days of such consultant's selection. Any delay occasioned by any such dispute shall extend the Completion Date by such period of time. 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 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 Phase II Legacy Village 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 Phase II Legacy Village is not completed by the Completion Date for any reason whatsoever, or (B) the Developer is in default under the Loan and the Lender notifies the City that the Developer is in default and, at the Lender's sole option, requests the City to complete development, whichever shall first occur, then, the City may, at the cost and expense of the Developer, commence, pursue and complete the installation of the of the COMPLETION AGREEMENT - Page 3 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. Prior to the commencement of any work by the City, the City shall provide evidence of insurance reasonably required by the Lender naming the Lender and the Developer as additional insureds. 6. Advance of Completion Costs to the City and Delivery of Hard Costs Collateral to the City. Upon the occurrence of either event described in paragraph 5 above, if the City elects within ten (10) business days of the Completion Date or notice from the Lender, as the case may be, to complete the construction of the Community Facilities, the Lender shall thereafter advance to the City any remaining undisbursed Hard Costs specified in the Approved Budget relating to the Loan that are incurred by the City in completing the Community Facilities in an aggregate sum not to exceed the Completion Amount, as adjusted, by funding monthly draws to the City as described herein. The Developer hereby authorizes and instructs the Lender to make periodic advances of any remaining undisbursed Hard Costs specified in the Approved Budget not to exceed the Completion Amount in increments paid to the City within the same time period specified in the Loan Documents after receipt of advance requests meeting the requirements of the Loan Documents from the City of the Hard Costs remaining to be drawn under the Loan as specified in the Approved Budget incurred by it and approved by the Lender, subject to retainage. The advance requests from the City shall be made not more frequently than monthly (save and except for final payment) and shall be accompanied by reasonably acceptable evidence of the Hard Costs specified in the Approved Budget that have been incurred by the City. The City shall use the funds advance for the payment of such Hard Costs as are described in the advance request, and if the City fails to do so, the Lender's obligation to fund additional advances shall thereafter be terminated and of no continuing force and/or effect. The City shall provide mechanic's and materialmen's releases as may be reasonably requested by the Lender. Upon request of the City , the Lender may pay such advances directly to the suppliers and contractors described in the advance request. All advances made by Lender to the City or to any supplier or contractor will be deemed to be an advance by the Lender to the Developer under the Loan and will be repayable by the Developer to the Lender pursuant to the terms of the Loan Documents. 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, and at its option, proceed to complete the Community Facilities, foreclose on any of its collateral, or take any and all such action as may be provided under the Loan Documents or applicable law. COMPLETION AGREEMENT- Page 4 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. In such event, however, the Lender must complete the Community Facilities by the date which is three (3) months after the Completion Date or the City shall complete the same as provided above. 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 Phase II Legacy Village and shall execute and deliver such temporary easements over and across the Phase II Legacy Village 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 Phase II Legacy Village 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. 12. Final Plat. The Parties acknowledge and agree that the City shall hold the final plat of Phase II Legacy Village until the Community Facilities are substantially completed and all Hard Costs contractors have been paid, less retainage. Upon receipt and acceptance by the City of evidence of substantial completion and the payment by the Developer of all Hard Costs contractors, the city shall immediately file the final plat of Phase II Legacy Villge in the Tarrant County Plat Records. The purpose of the City retaining the final plat of Phase II Legacy Village as prescribed herein is to guarantee the Developer's obligations under the CFA. COMPLETION AGREEMENT- Page 5 13. Construction Contracts. The Developer agrees to include in all construction contracts 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 guaranty payment for work performed on the Community Facilities: (B) A statement that Phase II Legacy VilIgge is private property and that same may be subject to mechanic's and materialmen's Liens: (C) A requirement that the contractor release the City from any claim that is related to any work on Phase II Legacy Village; and (D) A requirement that the contractor include in its subcontracts 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 address: COMPLETION AGREEMENT- Page 6 (i) Notice to the City shall be addressed and delivered as follows: CITY OF FORT WORTH 1000 THROCKMORTON STREET FORT WORTH, TEXAS 76102 ATTENTION: RAQUEL VELASQUEZ DEVELOPMENT COORDINATOR TELECOPY NUMBER: 817-871-8359 CONFIRMATION NUMBER: 817-871-7600 With a copy thereof addressed and delivered as follows: CITY OF FORT WORTH 100 THROCKMORTON STREET FORT WORTH, TEXAS 76102 ATTENTION: GARY STEINBERGER, ESQ. ASSISTANT CITY ATTORNEY TELECOPY NUMBER: 817-871-8359 CONFIRMATION NUMBER: 817-871-7600 (ii) Notice to the Developer shall be addressed and delivered as follows: HOK JOINT VENTURE P.O. BOX 1353 FT WORTH, TEXAS 76101 ATTENTION: R.L. HICKMAN TELECOPY NUMBER: CONFIRMATION NUMBER : 817-239-9050 (iii) Notice to the Lender shall be addressed and delivered as follows: SOUTHWEST BANK P.O. BOX 962020 FT WORTH, TEXAS 76162-2020 ATTENTION: STEVE R. JONES TELECOPY NUMBER: 817-292-6725 CONFIRMATION NUMBER: 817-292-4820 COMPLETION AGREEMENT- Page 7 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 the 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. COMPLETION AGREEMENT- Page 8 Executed by the Parties to be effective as of the date first stated above. APPROVED AS TO FORM AND LEGALITY T E CI F RT WORTH By. B : Name: Name: Title: Gary 8teinber g Title: /'3318$T&nt Ulty Attorney DEVELOPER HOK JOINT VENTURE By: 2 J- /. d�-J�46- Name: RICK L. HICKMAN Title: JOINT VENTURER LENDER SOUTHWEST NK By a, Name• 1— . -�N --, Title: k f Contract huthorization 4. _ Date COMPLETION AGREEMENT- Page 9 FT, �uu �� � �[ o Edward A. Oram, Rick L. Hickman, and James F. Kasson(collectively "Guarantors"),the Guarantors of the Development Loan, are 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 which shall be subject to and covered by the Loan Documents and the Guaranty Agreements that were executed by Guarantors. GUARANTORS: Z�- Q Edward A..Oram G� W4z-t444^. Rick L. Hickman J s F. K son COMPLETION AGREEMENT- Page 10 LIST OF EXHIBITS TO THE COMPLETION AGREEMENT BY AND AMONG THE CITY OF FORT WORTH, HOK JOINT VENTURE AND SOUTHWEST BANK EXHIBIT A- LEGAL DESCRIPTION EXHIBIT B- APPROVED BUDGET LIST OF EXHIBITS-Page Solo EXHIBIT "A" BEING ALL OF LOTS 1 R THROUGH 17R AND 18, BLOCK 6 OF PHASE II LEGACY VILLAGE, AN ADDITION TO THE CITY OF FORT WORTH, TARRANT COUNTY, TEXAS, ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 388-176, PAGE 93, PLAT RECORDS, TARRANT COUNTY, TEXAS. AND BEING ALL OF LOTS 25 THROUGH 42, BLOCK 7 OF PHASE II LEGACY VILLAGE, AN ADDITION TO THE CITY OF FORT WORTH, TARRANT COUNTY, TEXAS, ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 388-173, PAGE 56, PLAT RECORDS, TARRANT COUNTY, TEXAS. t ' Section I Water $ 8,025 Sewer 12,150 Offsite Sewer 60,604 Construction Inspection 2% 1,615 Sub-total 82,394 Section II Interior Streets $ 97,175 Construction Inspection 2% 1,555 Storm Drains 0 Construction Inspection 2% 0 Escrow for Academy Blvd 10,185 Sub-total 108,915 Section III Street Lights $ 5,625 Design 625 Sub-total 6,250 Section IV Street Signs $ 100 Total 197,659