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HomeMy WebLinkAboutContract 57678 Received Date: Jun 13,2022 Received Time: 3:34 pm Developer and Project Information Cover Sheet: Developer Company Name: Gabriel Southwest LLC Address, State,Zip Code: 410 N Carroll Ave., Suite 180 Southlake,Texas 76092 Phone &Email: (817)251-8145,dekccgtrike.com Authorized Signatory,Title: Dean Eldridge,Manager Pro]ect Name: Paving, Drainage and Street Light Improvements to Serve McPherson Addition Multifamily Development Brief Description: Paving, Storm Drain, Street Lights Project Location: South of McPherson Blvd, West of Chisholm Trail Parkway Plat Case Number: Not Provided Plat Name: McPherson Addition Mapsco: 102Y Council District: 6 CFA Number: CFA21-0162 City Project Number: 103717 1 IPRC21-0120 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX City of Fort Worth,Texas Page 1 of 18 Standard Community Facilities Agreement Rev.9/21 City Contract Number: 57678 STANDARD COMMUNITY FACILITIES AGREEMENT This COMMUNITY FACILITIES AGREEMENT("Agreement") is made and entered into by and between the City of Fort Worth ("City"), a home-rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager, and Gabriel Southwest LLC ("Developer"),acting by and through its duly authorized representative.City and Developer are referred to herein individually as a"party" and collectively as the"parties." WHEREAS, Developer is constructing private improvements or subdividing land within the corporate limits of Fort Worth, Texas or its extraterritorial jurisdiction, for a project known as Paving, Drainage and Street Light Improvements to Serve McPherson Addition Multifamily Development ("Project");and WHEREAS, the City desires to ensure that all developments are adequately served by public infrastructure and that the public infrastructure is constructed according to City standards; and WHEREAS, as a condition of approval of the Project, Developer is required to bear a portion of the costs of municipal infrastructure by constructing the public infrastructure necessary for the Project as described in this Agreement("Community Facilities"or"Improvements");and WHEREAS,as a condition of approval of the Project,Developer is required to meet the additional obligations contained in this Agreement,and Developer may be required to make dedications of land,pay fees or construction costs,or meet other obligations that are not a part of this Agreement;and WHEREAS,the City is not participating in the cost of the Improvements or Project;and WHEREAS, the Developer and the City desire to enter into this Agreement in connection with the collective Improvements for the Project; NOW,THEREFORE,for and in consideration of the covenants and conditions contained herein, the City and the Developer do hereby agree as follows: 1. CFA Ordinance The Community Facilities Agreements Ordinance("CFA Ordinance"),as amended,is incorporated into this Agreement by reference, as if it was fully set out herein. Developer agrees to comply with all provisions of the CFA Ordinance in the performance of Developer's duties and obligations pursuant to this Agreement and to cause all contractors hired by Developer to comply with the CFA Ordinance in City of Fort Worth,Texas Page 2 of 18 Standard Community Facilities Agreement Rev.9/21 connection with the work performed by the contractors. If a conflict exists between the terms and conditions of this Agreement and the CFA Ordinance,the CFA Ordinance shall control. 2. Incorporation of Engineering Plans The engineering plans for the Improvements that have been approved by the City ("Engineering Plans")are incorporated into this Agreement by reference as if fully set out herein. Developer shall provide at its expense, unless otherwise agreed to by City, all engineering drawings and documents necessary to construct the Improvements required by this Agreement. 3. Description of Improvements; Exhibits and Attachments The following exhibits describe the general location, nature and extent of the Improvements that are the subject of this Agreement and are attached hereto and incorporated herein by reference: ❑ Exhibit A: Water ❑ Exhibit A-1: Sewer ❑X Exhibit B: Paving ❑X Exhibit B-1: Storm Drain ❑X Exhibit C: Street Lights & Signs The Location Map and Cost Estimates are also attached hereto and incorporated herein by reference. To the extent that Exhibits A, A-1, B, B-1, C, the Location Map, or the Cost Estimates conflict with the Engineering Plans, the Engineering Plans shall control. If applicable,Attachment 1 — Changes to Standard Community Facilities Agreement, Attachment 2 — Phased CFA Provisions, and Attachment 3 — Concurrent CFA Provisions, are attached hereto and incorporated herein for all purposes. 4. Construction of Improvements Developer agrees to cause the construction of the Improvements contemplated by this Agreement and that said construction shall be completed in a good and workmanlike manner and in accordance with all City standards and specifications, the Engineering Plans, the Cost Estimates provided for the Improvements,and this Agreement. Developer acknowledges that City will not accept the Improvements until the City receives affidavits and lien releases signed by Developer's contractors verifying that the contractors, and all subcontractors and material suppliers, have been paid in full for constructing the Improvements, and consent of the surety on payment and performance bonds provided for the Improvements. 5. Financial Guarantee Developer has provided the City with a financial guarantee in the form and amounts set forth in this Agreement which guarantees the construction of the Improvements and payment by Developer of all contractors, subcontractors, and material suppliers for the Improvements ("Financial Guarantee"). Developer shall keep the Financial Guarantee in full force and effect until released by the City and shall City of Fort Worth,Texas Page 3 of 18 Standard Community Facilities Agreement Rev.9/21 not reduce the amount of the Financial Guarantee unless authorized by the City in accordance with the CFA Ordinance. 6. Completion Deadline; Extension Periods This Agreement shall be effective on the date this Agreement is executed by the City's Assistant City Manager ("Effective Date"). Developer shall complete construction of the Improvements and obtain the City's acceptance of the Improvements within two (2) years of the Effective Date ("Term"). If construction of the Improvements has started during the Term, the Developer may request that this Agreement be extended for an additional period of time ("Extension Period"). All Extension Periods shall be agreed to in writing by the City and the Developer as set forth in a written amendment to this Agreement. In no event shall the Term of this Agreement plus any Extension Periods be for more than three years. 7. Failure to Construct the Improvements (a) The City may utilize the Developer's Financial Guarantee to cause the completion of the construction of the Improvements if at the end of the Term, and any Extension Periods, the Improvements have not been completed and accepted by the City. (b) The City may utilize the Developer's Financial Guarantee to cause the completion of the construction of the Improvements or to cause the payment of costs for construction of the Improvements before the expiration of the Term, and any Extension Period, if the Developer breaches this Agreement,becomes insolvent,or fails to pay costs of construction. (c) If the Financial Guarantee is a Completion Agreement and the Developer's contractors or suppliers are not paid for construction costs or materials supplied for the Improvements the contractors and suppliers may place a lien upon any property which the City does not have an ownership interest that is the subject of the Completion Agreement. (d) Nothing contained herein is intended to limit the Developer's obligations under the CFA Ordinance, this Agreement, the Financial Guarantee, Developer's agreements with Developer's contractors,or other related agreements. 8. Termination If Developer desires to terminate this Agreement before Developer's contractors begin constructing the Improvements, Developer agrees to the following: (a) that Developer and City must execute a termination of this Agreement in writing; (b) that Developer will vacate any final plats that have been filed with the county where the Project is located; and (c) to pay to the City all costs incurred by the City in connection with this Agreement, including time spent by the City's inspectors at preconstruction meetings. City of Fort Worth,Texas Page 4 of 18 Standard Community Facilities Agreement Rev.9/21 9. Award of Construction Contracts (a) Developer will award all contracts for the construction of the Improvements and cause the Improvements to be constructed in accordance with the CFA Ordinance. (b) Developer will employ construction contractors who meet the requirements of the City to construct the Improvements including,but not limited,to being prequalified,insured,licensed and bonded to construct the Improvements in the City. (c) Developer will require Developer's contractors to provide the City with payment and performance bonds naming the City and the Developer as dual obligees, in the amount of one hundred percent (100%) of the cost of the Improvements as required by the CFA Ordinance. The payment and performance bonds shall guarantee construction of the Improvements and payment of all subcontractors and material suppliers. Developer agrees to require Developer's contractors to provide the City with a maintenance bond naming the City as an obligee, in the amount of one hundred percent(100%) of the cost of the Improvements, that guarantees correction of defects in materials and workmanship for the Improvements by the contractor and surety for a period of two (2)years after completion and final acceptance of the Improvements by the City. All bonds must be provided to the City before construction begins and must meet the requirements of the City's Standard Conditions,Chapter 2253 of the Texas Government Code,and the Texas Insurance Code. (d) Developer will require Developer's contractors to provide the City with insurance equal to or in excess of the amounts required by the City's standard specifications and contract documents for developer-awarded infrastructure construction contracts. The City must be named as an additional insured on all insurance policies. The Developer must provide the City with a Certificate of Insurance (ACORD or form approved by the State of Texas), supplied by each contractor's insurance provider,which shall be made a part of the Project Manual. (e) Developer will require the Developer's contractors to give forty-eight(48)hours' advance notice of their intent to commence construction of the Improvements to the City's Construction Services Division so that City inspection personnel will be available. Developer will require Developer's contractors to allow construction of the Improvements to be subject to inspection at any and all times by the City's inspectors. Developer will require Developer's contractors to not install or relocate any sanitary sewer, storm drain,or water pipe unless a City inspector is present and gives consent to proceed, and to allow such laboratory tests as may be required by the City. (f) Developer will not allow Developer's contractors to begin construction of the Improvements until a notice to proceed to construction is issued by the City. (g) Developer will not allow Developer's contractors to connect buildings to service lines of sewer and water mains constructed pursuant to this Agreement, if any, until said sewer, water mains and service lines have been completed to the satisfaction of the City. 10. Utilities Developer shall cause the installation or adjustment of utilities required to: (1) serve the Project; and (2) to construct the Improvements required herein. City shall not be responsible for payment of any City of Fort Worth,Texas Page 5 of 18 Standard Community Facilities Agreement Rev.9/21 costs that may be incurred by Developer in the relocation of any utilities that are or may be in conflict with any of the Improvements to be constructed pursuant to this Agreement. II. Easements and Rights-of-Way Developer agrees to provide,at its expense,all necessary rights-of-way and easements required for the construction and dedication to the City of the Improvements provided for by this Agreement. 12. Liability and Indemnification (a) DEVELOPER HEREBY RELEASES AND AGREES TO INDEMNIFY, DEFEND AND HOLD THE CITY HARMLESS FOR ANY INADEQUACIES IN THE PRELIMINARY PLANS, SPECIFICATIONS, ENGINEERING PLANS, AND COST ESTIMATES SUPPLIED BY THE DEVELOPER FOR THIS AGREEMENT. (b) THE DEVELOPER COVENANTS AND AGREES TO,AND BY THESE PRESENTS DOES HEREBY FULLY INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS,AGENTS AND EMPLOYEES FROM ALL SUITS,ACTIONS OR CLAIMS OF ANY CHARACTER, WHETHER REAL OR ASSERTED,BROUGHT FOR OR ONACCOUNT OFANYINJURIES OR DAMAGES SUSTAINED B YANY PERSONS,INCL UDING DEATH, OR TO ANY PROPERTY, RESULTING FROM OR IN CONNECTION WITH THE CONSTRUCTION,DESIGN, PERFORMANCE OR COMPLETION OF ANY WORK TO BE PERFORMED BY SAID DEVELOPER, ITS CONTRACTORS, SUBCONTRACTORS, OFFICERS, AGENTS OR EMPLOYEES, OR IN CONSEQUENCE OF ANY FAILURE TO PROPERL Y SAFEGUARD THE WORK, OR ONACCOUNT OF ANY ACT,INTENTIONAL OR OTHERWISE, NEGLECT OR MISCONDUCT OF SAID DEVELOPER, ITS CONTRACTORS, SUB-CONTRACTORS, OFFICERS, AGENTS OR EMPLOYEES, WHETHER OR NOT SUCHINJURIES,DEATH OR DAMAGESARE CAUSED,IN WHOLE OR IN PART, BY THE ALLEGED NEGLIGENCE OF THE CITY OF FORT WORTH, ITS OFFICERS,SERVANTS, OR EMPLOYEES. (c) DEVELOPER WILL REQUIRE ITS CONTRACTORS TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, SUITS OR CAUSES OF ACTION OF ANY NATURE WHATSOEVER, WHETHER REAL OR ASSERTED, BROUGHT FOR OR ON ACCOUNT OF ANY INJURIES OR DAMAGES TO PERSONS OR PROPERTY, INCLUDING DEATH,RESULTING FROM, OR INANY WAY CONNECTED WITH, THE CONSTRUCTION OF THE IMPROVEMENTS CONTEMPLATED HEREIN, WHETHER OR NOT SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED, IN WHOLE OR IN PART, BY THE ALLEGED NEGLIGENCE OF THE CITY OF FORT WORTH, ITS OFFICERS, SERVANTS, OR EMPLOYEES. FURTHER, DEVELOPER WILL REQUIRE ITS CONTRACTORS TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE CITY FOR ANY LOSSES, DAMAGES, COSTS OR EXPENSES SUFFERED BY THE CITY OR CAUSED AS A RESULT OF SAID CONTRACTORS' FAILURE TO COMPLETE THE WORK AND CONSTRUCT THE IMPROVEMENTS IN A GOOD AND WORKMANLIKE MANNER, FREE FROM DEFECTS,IN CONFORMANCE WITH THE CFA ORDINANCE, AND INACCORDANCE WITH ALL PLANS AND SPECIFICATIONS. City of Fort Worth,Texas Page 6 of 18 Standard Community Facilities Agreement Rev.9/21 13. Right to Enforce Contracts Upon completion of all work associated with the construction of the Improvements,Developer will assign to the City a non-exclusive right to enforce the contracts entered into by Developer with its contractors,along with an assignment of all warranties given by the contractors,whether express or implied. Further,Developer agrees that all contracts with any contractor shall include provisions granting to the City the right to enforce such contracts as an express intended third parry beneficiary of such contracts. 14. Estimated Fees Paid by Developer; Reconciliation Prior to execution of this Agreement, Developer has paid to the City the estimated cost of administrative material testing service fees, construction inspection service fees,and water testing lab fees in the amounts set forth in the Cost Summary section of this Agreement. Upon completion of the construction of the Improvements, the City will reconcile the actual cost of administrative material testing service fees, construction inspection service fees, and water testing lab fees with the estimated fees paid by Developer. If the actual costs of the fees are more than the estimated payments made by the Developer, the Developer must pay the difference to the City before the Improvements will be accepted by the City. If the actual costs of the fees are less than the estimated payments made by the Developer,the City will refund the difference to the Developer.If the difference between the actual costs and the estimated payments made by the Developer is less than fifty dollars($50.00),the City will not issue a refund and the Developer will not be responsible for paying the difference. The financial guarantee will not be released by the City or returned to the Developer until reconciliation has been completed by the City and any fees owed to the City have been paid by the Developer. 15. Material Testing The City maintains a list of pre-approved material testing laboratories. The Developer must contract with material testing laboratories on the City's list. Material testing laboratories will provide copies of all test results directly to the City and the Developer. If the Improvements being constructed fail a test, the Developer must correct or replace the Improvements until the Improvements pass all retests. The Developer must pay the material testing laboratories directly for all material testing and retesting. The City will obtain proof from the material testing laboratories that the material testing laboratories have been paid in full by the Developer before the City will accept the Improvements. 16. Notices All notices required or permitted under this Agreement may be given to a party by hand- delivery or by mail, addressed to such party at the address stated below. Any notice so given shall be deemed to have been received when deposited in the United States mail so addressed with postage prepaid: CITY: DEVELOPER: Development Coordination Office Gabriel Southwest LLC City of Fort Worth 410 N Carroll Ave., Suite 180 200 Texas Street Southlake, Texas 76092 Fort Worth, Texas 76102 City of Fort Worth,Texas Page 7 of 18 Standard Community Facilities Agreement Rev.9/21 With copies to: City Attorney's Office City of Fort Worth 200 Texas Street Fort Worth, Texas 76102 and City Manager's Office City of Fort Worth 200 Texas Street Fort Worth, Texas 76102 Or to such other address one party may hereafter designate by notice in writing addressed and mailed or delivered to the other party hereto. 17. Right to Audit Developer agrees that, until the expiration of three (3) years after acceptance by the City of the Improvements constructed pursuant to this Agreement, that the City shall have access to and the right to examine any directly pertinent books, documents, papers and records of the Developer involving transactions relating to this Agreement. Developer agrees that the City shall have access during normal working hours to all necessary Developer facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give Developer reasonable advance notice of intended audits. Developer further agrees to include in all contracts with Developer's contractors for the Improvements a provision to the effect that the contractor agrees that the City shall,until the expiration of three (3)years after final payment under the contract,have access to and the right to examine any directly pertinent books, documents,papers and records of such contractor, involving transactions to the contract, and further,that City shall have access during normal working hours to all of the contractor's facilities,and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. City shall give Developer's contractors reasonable advance notice of intended audits. 18. Independent Contractor It is expressly understood and agreed that Developer and its employees, representative, agents, servants,officers,contractors,subcontractors,and volunteers shall operate as independent contractors as to all rights and privileges and work performed under this Agreement, and not as agents, representatives or employees of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Developer shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers. Developer acknowledges that the doctrine of respondeat superior shall not apply as between the City and its officers, representatives, agents, servants and City of Fort Worth,Texas Page 8 of 18 Standard Community Facilities Agreement Rev.9/21 employees, and Developer and its employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers. Developer further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Developer. It is further understood that the City shall in no way be considered a co-employer or a joint employer of Developer or any employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers of Developer. Neither Developer,nor any officers,agents, servants,employees or subcontractors of Developer shall be entitled to any employment benefits from the City. Developer shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of employees, representatives, agents, servants,officers,contractors, subcontractors,and volunteers. The City,through its authorized representatives and employees, shall have the sole and exclusive right to exercise jurisdiction and control over City employees. 19. Applicable Law; Venue This Agreement shall be construed under and in accordance with Texas law. Venue shall be in the state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas,Fort Worth Division. 20. Non-Waiver The failure of the City to insist upon the performance of any term or provision of this Agreement or to exercise any right herein conferred shall not be construed as a waiver or relinquishment to any extent of City's right to assert or rely on any such term or right on any future occasion. 21. Governmental Powers and Immunities. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. 22. Headings The paragraph headings contained herein are for the convenience in reference and are not intended to define or limit the scope of any provision of this Agreement. 23. Severability In the event that any clause or provision of this Agreement shall be held to be invalid by any court of competent jurisdiction, the invalidity of such clause or provision shall not affect any of the remaining provisions hereof. 24. Review of Counsel City of Fort Worth,Texas Page 9 of 18 Standard Community Facilities Agreement Rev.9/21 City and Developer, and if they so choose,their attorneys, have had the opportunity to review and comment on this document;therefore any rule of contract construction or interpretation that would normally call for the document to be interpreted as against the drafting party shall not apply in interpretation of this Agreement, and each section, portion, and provision of this Agreement shall be construed solely on the basis of the language contained therein, regardless of who authored such language. 25. Prohibition on Boycotting Israel Developer acknowledges that in accordance with Chapter 2271 of the Texas Government Code, the City is prohibited from entering into a contract with a company with 10 or more full-time employees that has a value of$100,000 or more that is to be paid wholly or partly from public funds of the City for goods or services unless the contract contains a written verification from the company that it: (1)does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and"company"have the meanings ascribed to those terms by Chapter 2271 of the Texas Government Code. To the extent that Chapter 2271 of the Government Code is applicable to this Agreement,by signing this Agreement, Developer certifies that Developer's signature provides written verification to the City that Developer: (1)does not boycott Israel; and(2)will not boycott Israel during the term of this Agreement. 26. Prohibition on Boycotting Energy Companies Developer acknowledges that in accordance with Chapter 2274 of the Texas Government Code,as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2,the City is prohibited from entering into a contract for goods or services that has a value of$100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. The terms "boycott energy company" and "company" have the meanings ascribed to those terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Developer certifies that Developer's signature provides written verification to the City that Developer: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. 27. Prohibition on Discrimination Against Firearm and Ammunition Industries Developer acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code,as added by Acts 2021,87th Leg.,R.S.,S.B. 19, § 1,the City is prohibited from entering into a contract for goods or services that has a value of$100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1) does not have a practice,policy, guidance, or directive that discriminates against a firearm entity or firearm trade association;and(2)will not discriminate during the term of the contract against a firearm entity or firearm trade association. The terms "discriminate," "firearm entity" and "firearm trade association" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code,as added by Acts 2021, 87th Leg.,R.S., S.B. 19, § 1. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Developer certifies that Developer's signature provides written verification to the City that Developer: (1) does not have a practice,policy, guidance, or directive that discriminates against a firearm City of Fort Worth,Texas Page 10 of 18 Standard Community Facilities Agreement Rev.9/21 entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. 28. Immigration and Nationality Act Developer shall verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by City, Developer shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Developer shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Developer employee who is not legally eligible to perform such services.DEVELOPER SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY DEVELOPER, DEVELOPER'SEMPLOYEES,SUBCONTRACTORS,AGENTS,OR LICENSEES. City,upon written notice to Developer, shall have the right to immediately terminate this Agreement for violations of this provision by Developer. 29. Amendment No amendment,modification, or alteration of the terms of this Agreement shall be binding unless the same is in writing,dated subsequent to the date hereof, and duly executed by the City and Developer. 30. Assignment and Successors Developer shall not assign or subcontract all or any part of its rights,privileges,or duties under this Agreement without the prior written consent of City. Any attempted assignment or subcontract without the City's prior written approval shall be void and constitute a breach of this Agreement. 31. No Third-Party Beneficiaries The provisions and conditions of this Agreement are solely for the benefit of the City and Developer, and any lawful assign or successor of Developer, and are not intended to create any rights, contractual or otherwise,to any other person or entity. 32. Compliance with Laws,Ordinances,Rules and Regulations Developer, its officers, agents, servants, employees, and contractors, shall abide by and comply with all laws, federal, state and local, including all ordinances, rules and regulations of City. It is agreed and understood that,if City calls to the attention of Developer any such violation on the part of Developer or any of its officers, agents, servants, employees, or subcontractors, then Developer shall immediately desist from and correct such violation. City of Fort Worth,Texas Page 11 of 18 Standard Community Facilities Agreement Rev.9/21 33. Signature Authority The person signing this Agreement on behalf of Developer warrants that he or she has the legal authority to execute this Agreement on behalf of the Developer, and that such binding authority has been granted by proper order,resolution,ordinance or other authorization of the entity. The City is fully entitled to rely on this warranty and representation in entering into this Agreement. 34. Counterparts This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but which together will constitute one instrument. 35. Entire Agreement This written instrument, together with any attachments, exhibits, and appendices, constitutes the entire understanding between the City and Developer concerning the work to be performed hereunder, and any prior or contemporaneous, oral or written agreement that purports to vary from the terms hereof shall be void. [REMAINDER OF PAGE INTENTIONALLY BLANK] City of Fort Worth,Texas Page 12 of 18 Standard Community Facilities Agreement Rev.9/21 36. Cost Summary Sheet Pro]ect Name: Paving, Drainage and Street Light Improvements to Serve McPherson Addition Multifamily Development CFA No.: CFA21-0162 City Project No.: 103717 IPRC No.: IPRC21-0120 Items Developer's Cost A. Water and Sewer Construction 1. Water Construction $ - 2. Sewer Construction $ - Water and Sevver Construction Total $ - B. TPW Construction 1. Street $ 2,411,591.00 2. Storm Drain $ 1,587,905.00 3. Street Lights Installed by Developer $ 202,655.00 4. Signals $ - TPW Construction Cost Total $ 4,202,151.00 Total Construction Cost(excluding the fees): $ 4,202,161.00 Estimated Construction Fees: C. Construction Inspection Service Fee $82,500.00 D. Administrative Material Testing Service Fee $6,125.00 E. Water Testing Lab Fee $0.00 Total Estimated Construction Fees: $ 88,626.00 Choice Financial Guarantee Options,choose one Amount Mark one Bond = 100% $ 4,202,151.00 Completion A reement= 100%/Holds Plat $ 4,202,151.00 Cash Escrow Water/Sanitary Sewer= 125% $ - Cash Escrow Paving/Storm Drain = 125% $ 5,252,688.75 Letter of Credit= 125% $ 5,252,688.75 Escrow Pledge Agreement= 125% $ 5,252,688.75 X City of Fort Worth,Texas Page 13 of 18 Standard Community Facilities Agreement Rev.9/21 IN WITNESS WHEREOF,the City and Developer have each executed this Agreement by their duly authorized signatories to be effective on the date executed by the City's Assistant City Manager. CITY OF FORT WORTH DEVELOPER Gabriel Southwest LLC SuGG a&g/v ECr7��r7Ae Dana Burghdoff(Jun 13,20 11:58 CDT" Dean Eldridge(Jun 7, 022 12:01 CDT) Dana Burghdoff Dean Eldridge Assistant City Manager Manager Date: Jun 13,2022 Date: Jun 7,2022 Recommended by: Tiffany Bacon Project Assistant Development Services Approved as to Form &Legality: Richard A.McCracken(Jun 7,2022 15:23 CDT) Contract Compliance Manager: Richard A.McCracken Sr.Assistant City Attorney By signing, I acknowledge that I am the person M&C No. responsible for the monitoring and Date: Jun 7 2022 administration of this contract,including ensuring all performance and reporting Form 1295: d�nn requirements. aa�Fonr� as ,cyO°°00 ° pad Tgnie Scc�rlett Morales ATTEST: P�0 0��� Janie Scarlett Morales(Jun 7,202214:33 CDT) �o 0040. 9a .r�e�te S v o S 2 Janie Scarlett Morales Jannette S.Goodall(Jun 13,202212:40 CDT) *o o*�d Development Manager Jannette Goodall da ° 0000 City Secretary a��nEXASoAp OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX City of Fort Worth,Texas Page 14 of 18 Standard Community Facilities Agreement Rev.9/21 The following attachments are incorporated into this Agreement. To the extent a conflict exists between the main body of this Agreement and the following attachments, the language in the main body of this Agreement shall be controlling. Included Attachment ❑X Attachment 1 -Changes to Standard Community Facilities Agreement ❑X Attachment 2—Phased CFA Provisions ❑ Attachment 3 —Concurrent CFA Provisions ❑X Location Map ❑ Exhibit A: Water Improvements ❑ Exhibit A-1: Sewer Improvements ❑X Exhibit B: Paving Improvements ❑X Exhibit B-1: Storm Drain Improvements ❑X Exhibit C: Street Lights and Signs Improvements ❑X Cost Estimates (Remainder of Page Intentionally Left Blank) City of Fort Worth,Texas Page 15 of 18 Standard Community Facilities Agreement Rev.9/21 ATTACHMENT"1" Changes to Standard Community Facilities Agreement City Project No. 103716 None. City of Fort Worth,Texas Page 16 of 18 Standard Community Facilities Agreement Rev.9/21 ATTACHMENT "2" Phased CFA Provision City Project No. 103716 The improvements being constructed by Developer pursuant to this Agreement will connect to improvements Developer is constructing under a separate Community Facilities Agreement that have not been completed and accepted by the City. Therefore, this Agreement shall be considered a"Phased CFA"and the provisions contained in this section shall apply to this Agreement. The improvements being constructed by Developer under the separate Community Facilities Agreement shall be defined as the "Parent Project." The improvements being constructed by Developer under this Agreement shall be defined as the "Child Project." Developer acknowledges and agrees that due to Developer's election to construct a Phased CFA,the potential exists for technical, delivery, acceptance or performance problems (hereinafter "Construction Problems"). Construction Problems may include, but are not limited to: failure of the improvements to comply with the approved plans or City Specifications; failure of the improvements in the Parent Project and the Child Project to properly connect to each other; changes to the design or construction of the improvements in the Parent Project that impact the design and construction of the improvements in the Child Project; construction delays, delay claims, or claims for liquidated damages; increased costs for the Developer; failure of the improvements to pass inspection or material testing; or rejection by the City of some or all of the improvements and Developer having to remove and reconstruct the improvements at Developer's expense. In addition, Developer understands and agrees that disputes may arise between Developer's contractors or their subcontractors relating to responsibility for the Construction Problems. Developer shall be solely responsible for resolving disputes between contractors or disputes between contractors and subcontractors. Developer further acknowledges and agrees that Developer has notified all of Developer's contractors for the Project that Developer has elected to construct a Phased CFA, the provisions of this section, the risks associated with a Phased CFA, and that the City shall not bear any responsibility for Developer's decision to proceed with a Phased CFA. Developer shall not make the final connection of the improvements in the Child Project to the improvements in the Parent Project until the improvements in the Parent Project have been constructed and accepted by the City and the City has consented to Developer making the connection. Developer agrees that if this Agreement is for improvements relating to the construction, renovation or modification of one or more single family residential homes or structures, the City will not record the plat related to the Project until the improvements are constructed and accepted by the City. Developer agrees that if this Agreement is for improvements relating to the construction, renovation or modification of one or more commercial buildings or structures, the Developer shall not receive a Certificate of Occupancy from the City for the building(s)related to the Project until the improvements in this Agreement are constructed and accepted by the City. Developer further understands and agrees that completion of the improvements under this Agreement does not entitle Developer to obtain a final plat of the property until all other requirements of Federal law, State law, or the City Code relating to the filing and recording of a final plat have been met by Developer. City of Fort Worth,Texas Page 17 of 18 Standard Community Facilities Agreement Rev.9/21 BY CHOOSING TO CONSTRUCT A PHASED CFA, DEVELOPER ASSUMES ALL RISKS AND DEVELOPER SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY AND ALL ECONOMICDAMA GES PROPERTYLOSS,PROPERTYDAMAGESANDPERSONAL INJURY, (INCL UDING DEATH), OFANY KIND OR CHARACTER, WHETHER REAL ORASSERTED. DEVELOPERHEREBYEXPRESSLYRELEASESANDDISCHARGES CITY FROM ANY AND ALL LIABILITY FOR DAMA GES, INCL UDING, BUT NOT LIMITED TOANYANDALL ECONOMICDAMA GES,PROPERTYLOSS,PROPERTY DAMAGE AND PERSONAL INJURY(INCL UDING DEATH)ARISING OUT OF OR IN CONNECTION WITH,DIRECTLY OR INDIRECTLY, THE CONSTRUCTION OF THE IMPROVEMENTS OR DEVELOPER'S DECISION TO CONSTRUCT A PHASED CFA. DEVELOPER,AT ITS SOLE COSTAND EXPENSE,AGREES TO AND DOES HEREBY INDEMNIFY, DEFEND PROTECT, AND HOLD HARMLESS CITY, AND CITY'S OFFICERS, REPRESENTATIVES, AGENTS, EMPLOYEES, AND SERVANTS FOR, FROMANDAGAINSTANYANDALL CLAIMS(WHETHERATLA W ORINEQUITY), LIABILITIES, DAMAGES (INCLUDING ANY AND ALL ECONOMIC DAMAGES, PROPERTY LOSS, PROPERTY DAMA GES AND PERSONAL INJURIES INCLUDING DEATH), LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION), OF ANY NATURE, KIND OR DESCRIPTION ARISING OR ALLEGED TO ARISE BY OR IN ANY WA Y RELATED TO CONSTRUCTION OF THE IMPROVEMENTS OR DEVELOPER'S CHOICE TO CONSTRUCT A PHASED CFA, OR (2) BY REASON OF ANY OTHER CLAIM WHATSOEVER OFANY PERSON OR PARTY OCCASIONED OR ALLEGED TO BE OCCASIONED IN WHOLE OR IN PART BY THE CONSTRUCTIONS OF THE IMPROVEMENTS OR DEVELOPER'S CHOICE TO CONSTRUCT A PHASED CFA WHETHER OR NOT SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED, IN WHOLE OR IN PART, BY THE ALLEGED NEGLIGENCE OF THE CITY OF FORT WORTH,ITS OFFICERS, SERVANTS, OR EMPLOYEES. DEVELOPER Gabriel Southwest LLC bey E2raAe- Dean Eldridge(Jun 7, 02212:01 CDT) Dean Eldridge Manager Date: J u n 7, 2022 City of Fort Worth,Texas Page 18 of 18 Standard Community Facilities Agreement Rev.9/21 a coin � 3'ti N � ikFNis _ + ' Su, t Cr ;J r Z E a� > — oQ U_ o > � o a Co A C rl a � C o 16 k U 0 co � z o -0o �0& w E ol > � � V) KI J r` m Z � � 0C,6 � O o a o z o Z � � � U O t a - � � = wo N� � O Q Wr- 00 E C ) - Wa `` O 0 ZCr; w o — ai o0 m uJ o — U, ~ o P a Li Q Z 0� (=)o o o 0 0 r++ 0 0 Ln 11 Of LO cr. 00 o o wmro Eo ' a � COO N U N CL C _ -0Q � d L Q O � � d o om00 E1N 0 50' F-F N 1c=00 0c=00 6Z 0 9Z-00 a 00 9Z-00 SZ 00 £Z=00 ZZ-00 L 00 OZ a� GAO C� K N Vd 19 50' F-F °1 o ZIx ViSIA Z o7 O Q mo 00 w E ~� ' > " m Wcoz aZ Io K O�Q �MLLI r I bA M -- ~O 0 N> } N `�`'zz �a o Io m wdO a.C.D N O 0 >ll J j N cxcUCU aZ U + N O J ¢ U) N X p � Wx � U W UlW Zw pp � '0 J J Z N `� 0p N m U Y p p F- 10 � U O OZQm pp o U > .� a F- z Q ry 0N �mPO < II Of cifLLIp m oo p a� Q U m Q Q � p y (00 O W Z C*4 O 28' F-F c6i Z o .aU) o � U W Ilo Z L7 0 co 0 Z � 0 J II W E m > m 3 Z w � p 111 / W Fn co Z � F- Fn 1 0 � Z N o 0 I� F- � a � � � � Z � r � IC) m Q WdT Y c° W r- °° E 00 I1� o W ai ' � I m �Z 0 ZU wa w N III Iz;� � � o � m P a IoCZ) 0Ad Q Z W �� o O H(w/)V, CO z �� z o CO ii o Ilcm)ap LO + Q Of X C o O e M VS p o Li a w 0 of Eo D � a o � CN I `� ° N Q o Q 0m00 N E1N J CL In �d I Z 3 In w p Q LL O Z N 11 WLLC.D J W m N N I Q.i Q O J C- O p p �z W~ Q p Z Z z W O ~ � 1 = �� W W J J J Z ,Sy oU O� Z J pN g J U U U m N o a CL a a s I U J GA�G a M M I Q a 0 - p g N azJ QU OU 0 34NV�19 M N °° `d1SlA in i� X z O o a o Lv w �a =o '� a M a w110 a D Ofo oI Q a Q �� w O p �� w m w F- Up Or.�a a I Jp Nz aJo w ��z g� M }a� cIn m w 1 �� N g �aa 1 c) w ~ = w aM n.Fi H t~ H� a 2 : H� MJ N a y �a.U 0 �Z U O N �N N M�N N 2,= w a ~ U O C4 O_ U L�J Q N N a W M O O i Q N N Z S� m OO � N � m a �U N N p .NN C M I C-D N lQi N N Y Up Z U p � Um 00 >�� � Z LJ oE co = Z < � J m J N N ZUf O � Z ) N N 3 a. a O ( QM a.o � 'SF- am wm U.JI � O m a' 1 = C) �Z z w aJ=p W � U MEn 3 co ° �m -i g M�N [� CO m � Ngcn � � m a F- z � N 0 c,f Z Y ~ O o m o U a L7 Co � Y a p J _ Zi 0 0 �� a. o� a. 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�DM3�18 `� ° N O� = N Q 'o N om00 Cl) E m N Fort Worth CFA DAP-BID PROPOSAL Page 1 of 2 SECTION 00 42 43 Developer Awarded Projects-PROPOSAL FORM UNIT PRICE BID Bidder's Application Project Item Information Bidders Proposal Bidlist Description Specification Section No. Unit of Bid Quantity Unit Price Bid Value Itcm No_ Mcasu, UNIT III:DRAINAGE IMPROVEMENTS 1 0171.0101 Construction Staking 0171 23 LS 1 $19,000.00 $19,000.00 2 3305.0109 Trench Safety 33 05 10 LF Z820 $0.25 $705.00 3 3341.0201 21"RCP,Class 111 344110 LF 170 $190.00 $32,300.00 4 3341.0205 24"RCP,Class 111 3341 10 LF 285 S140.00 $39,900.00 5 3341.0302 30"RCP,Class 111 3341 10 LF 175 $170.00 $29,750.00 6 3341.0309 36"RCP,Class 111 3341 10 LF 140 $190.00 $26,600.00 7 3341.0402 42"RCP,Class 111 3341 ID LF 875 $230.00 $201 250.00 8 3341.0409 48"RCP,Class 111 3341 10 LF 1,120 $265.00 $296,800.00 9 3341.1502 8x5 Box Culvert 33 49 40 LF 55 $1,600.00 $88.000.00 10 0241.4401 Remove Headwall/SET 024114 EA I $7,500.00 $7,500.00 11 3349.1003 30"Flared Headwall,1 pipe 334940 EA 1 S9,000.00 $9,000.00 12 3349.1011 48"Flared Headwall,1 pipe 33 49 40 EA 2 $12,000.00 $24,000.00 13 3349.1111 48"Flared Headwall,2 pipes 33 49 20 EA 1 $19,000.00 $19,000.00 14 9999.0001 Reinforced Cone.Weir Structure 03 30 00 CF 2,350 $74.47 $175,000.00 15 3349.D001 4'Storm Junction Box 33 49 10 EA 2 $11,000.00 $22,000.00 16 3349.0002 Y Storm Junction Box 33 49 10 EA 5 $14,000.00 $70,000.00 17 3349.0003 6 Storm Junction Box 33 49 10 EA 5 $18,500.00 $92,500.00 18 3349.5001 10'Curb Inlet 33 49 20 EA 11 $8,800.00 $96,800.00 19 3349.7001 4'Drop Inlet 33 49 20 EA 1 $7,200.00 $7,200.00 20 3137.0105 Medium Stone Riprap,grouted 31 37 00 SY 1,160 $285.00 $330,600.00 TOTAL UNIT III:DRAINAGE IMPROVEMENTS $1,587,905.00 UNIT IV:PAVING IMPROVEMENTS 1 0170.0100 Mobilization 017000 LS 1 $120,000.00 $120,000.00 2 0171,0101 Construction Staking 01 71 23 LS 1 SI8.000.00 $18,000.00 3 0241.1000 Remove Conc Pvmt 0241 15 SY 15 $90.00 $1,350.00 4 3123.0101 Unclassified Excavation by Plan(Inc.Roadway,channels&ponds) 31 23 16 CY 69,000 $14.00 S966,000.00 5 3125.0101 SWPPP 31 25 00 LS 1 $40,000.00 S40,000.00 6 3211.0400 Hydrated Lime 3211 29 TN 190 $235.00 S44,650.00 7 3211.0501 6"(8%hydrated lime treatment) 3211 29 SY 10,500 $5.25 S55,125.00 8 3213.0102 7"Cone Pvmt 3213 13 SY 8,800 $67.00 $589,600.00 9 3213.0401 6"Conc Driveway 32 13 20 SY 435 $100.00 S43,500.00 10 3213.0301 4"Cone Sidewalk 32 13 20 SF 26,250 $8.25 $216,562.50 11 3213.0501 Barrier Free Ramp,Type R-1 321320 EA 2 $4,800.00 $9,600.00 12 3213.0504 Barrier Free Ramp,Type M-2 32 13 20 EA I S2,400.00 $2,400.00 13 3213.0506 Barrier Free Ramp,Type P-1 321320 EA 8 $2,000.00 $16,000.00 14 13216.0101 6"Cone Curb and Gutter 321613 LF 5,650 $2.00 $11,300.00 15 3217.0202 8"SLD Pvmt Marking HAS(Y) 32 17 23 LF 50 $2.75 $137.50 16 3217.0004 4"BRIC Pvmt Marking HAS(Y) 32 17 23 LF 2,620 S2.00 $5,240.00 17 3217.0501 24"SLD Pvmt Marking HAE(W) 32 1723 LF 42 $18.00 $756.00 18 3441.4006 Install Alum Sign Ground Mount(stop sign) 34 41 30 EA 3 $525.00 $1.575.00 19 3292.0200 Block Sod Placement(Within R.O.W) 329213 SY 3,100 $5.50 $17,050.00 20 3292.0200 Seeding,Broadcast(Mass Grading&Detention Ponds) 32 92 13 SY 98,500 $1.50 $147,750.00 21 3339.0001 Epoxy Manhole Liner 33 39 60 VF 253 S415.001 $104 995.00 TOTAL UNIT IV:PAVING IMPROVEMENTS $2,411,591.00 UNIT V:STREET LIGHTING IMPROVEMENTS 1 0171.0101 Construction Staking 01 71 23 LS 1 $1,400.00 $1,400.00 2 2605.3015 2"CONDT PVC SCH 80(T) 26 05 33 LF 3,270 $19.00 $62,130.00 3 3441.1772 Fumish/Install 240-480 Volt Single Phase Transocket Metered Pedestal 34 41 20 EA 1 $9,500.00 $9,500.00 4 3441.3301 Rdwy Illum Foundation TY 1,2,and 4 34 41 20 EA 17 $1,900.00 $32,300.00 5 3441.1502 Ground Box Type B.w/Apron 34 41 20 EA 5 $1,600.00 $8,000.00 6 3441.1408 NO 6Insulated Elec Condr 3441 IO LF 12,700 $2.75 $34,925.00 7 9999.0001 Fumish/Install Powder Coat Black Type 33B Arm EA 17 $350.00 $5,950.00 $ 9999.0001FLrnish/InstallPowde Coat Black LED Lighting Iniatore(70 watt ATBO Cobra Head) EA 17 $550.00 $9,350.00 9 19999.0006 Fumish/Install Powder Coat Black Rdwy Illum Ty I I Pole EA 17 $2,300.00 $39,100.00 TOTAL UNIT V:STREET LIGHTING IMPROVEMENTS1 $202,655.00 CM OF FORT WORTH STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS-DEVELOPER AWARDED PROJECTS Form Version May 22.2019 Bid Form Storm S Paving Fort Wadh CFA DAP-BID PROPOSAL Page 2 of 2 SECTION 00 42 43 Developer Awarded Projects-PROPOSAL FORM UNIT PRICE BID Bidder's Application Project Item Information Bidder's Proposal Bidlist Description Specification Section No. I Unit of Bid Qu:udin Unit Price Bid Value Item No. I Measure Bid Summary UNIT 1:WATER IMPROVEMENTS UNIT II:SEWER IMPROVEMENTS UNIT III:DRAINAGE IMPROVEMENTS $1,587,905.00 UNIT IV:PAVING IMPROVEMENTS $2,411.591.00 UNIT V:STREET LIGHTING IMPROVEMENTS $202.655.00 Total Construction Bid $4,202,151.00 This Bid is submitted by the entity named below: BIDDER: BY:Danny McCutchen Jackson Construction,LTD. TITLE: Project Manager 5112 Sun Valley Dr DATE: April 29.2022 Fort Worth,TX 76119 Contractor agrees to complete WORK for FINAL ACCEPTANCE within 264 working days after the date when the CONTRACT commences to run as provided in the General Conditions. END OF SECTION CITY OF FORT WORTH STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS-DEVELOPER AWARDED PROJECTS Form Version May 22.2019 Bid Form Storm Paving ESCROW AGREEMENT THIS ESCROW AGREEMENT (the "Agreement"), is made and entered into by and between Gabriel Southwest LLC ("Developer"), the City of Fort Worth, a Texas home-rule municipal corporation ("Fort Worth") and Title Partners, LLC ("Escrow Agent") is to witness the following: WHEREAS, Developer and Fort Worth have entered into a Community Facilities Agreement for Paving, Drainage and Street Light Improvements to Serve McPherson Addition Multifamily Development,CFA Number CFA21-0162,City Project Number 103717, IPRC Number IPRC21-0120 (the "CFA"); and WHEREAS, the CFA provides that Developer shall submit to Fort Worth performance bonds, cash deposits or other financial security acceptable to Fort Worth (collectively, the "Financial Security") for the purpose of guaranteeing satisfactory compliance by Developer with all requirements,terms, and conditions of the CFA (the "CFA Obligations"); and WHEREAS, Developer and Fort Worth desire and agree that Developer be allowed to escrow and pledge cash deposits to Fort Worth, to be held by Escrow Agent, as an escrow agent, in complete satisfaction of the obligation to submit the Financial Security to secure the performance of the CFA Obligations. NOW THEREFORE, for and in consideration of these recitals, ten dollars ($10.00) and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows: SECTION 1. DEFINED TERMS. For the purposes of this Agreement, unless the context otherwise clearly requires, the following terms shall have the following meanings: "Security Funds" shall mean the cash deposit of Five Million Two Hundred Fifty-Two Thousand Six Hundred Eighty-Eight and Seventy-Five Cents ($5,252,688.75), which sum represents one hundred twenty-five percent (125%) of the estimated Developer's cost of constructing the CFA Obligations (the "Estimated Developer's Cost"). "Lien" shall mean any lien, security interest, charge, tax lien, pledge or encumbrance designed to secure the repayment of indebtedness or the satisfaction of any other obligation to a third party not a party of this Agreement. SECTION 2. SECURITY FUNDS. As financial security for the full and punctual performance of the CFA Obligations, Developer hereby pledges, assigns, and transfers to Fort Worth, and hereby grants to Fort Worth a security interest in the Security Funds and all rights and privileges pertaining thereto with the City of Fort Worth,Texas Escrow Pledge Agreement CFA Official Release Date:05.26.2022 jle Revised 09.07.2017 ME Page 1 of 9 exception of the interest income to be derived therefrom (which interest income shall remain the property of Developer and shall be distributed by Escrow Agent in accordance with Developer's periodic instructions) subject, however, to the terms, covenants, and conditions hereinafter set forth. The security interest granted and the assignments made hereunder are made as security only and shall not subject the City of Fort Worth or Escrow Agent to, or transfer or in any way affect or modify, any obligation of Developer with respect to the CFA Obligations or any transaction involving or giving rise therefrom. SECTION 3. PHYSICAL POSSESSION OF SECURITY FUNDS. Concurrently with the execution of this Agreement, Developer shall have delivered to and deposited with Escrow Agent the Security Funds. The parties acknowledge and agree that Escrow Agent shall be required to segregate the Security Funds from other funds held by Escrow Agent for Developer in accordance with the normal practices of Escrow Agent acting as an escrow agent. Escrow Agent shall return all funds on deposit representing or evidencing the Security Funds remaining in its possession to Developer (or take such other action as Developer may request or direct) immediately after receipt of written notice from Fort Worth that the CFA Obligations have been fully performed. During such time as Escrow Agent has possession of the Security Funds, Escrow Agent shall furnish to the City of Fort Worth (when requested by Fort Worth) written acknowledgments signed by an officer of Escrow Agent detailing the amount of the Security Funds. Fort Worth's rights in the Security Funds shall be superior to those of Escrow Agent's notwithstanding any terms or understandings (written or otherwise) between Developer and Escrow Agent. SECTION 4. COVENANTS. (a) Affirmative Covenants. So long as any of the CFA Obligations remain unperformed, Developer covenants and agrees that Developer will: (i) from time to time execute and deliver to Fort Worth all such assignments, certificates, supplemental writings, and other items and do all other acts or things as Fort Worth may reasonably request in order to evidence and perfect the security interest of Fort Worth in the Security Funds; (ii) furnish Fort Worth with information which Fort Worth may reasonably request concerning the Security Funds; (iii) notify Fort Worth of any claim, action, or proceeding affecting title to the Security Funds or Fort Worth's security interest(s) therein; and (iv) adjust the Security Funds to an amount equal to the actual contract price, including revisions thereto, if the original Security Funds were based on an engineer's estimate of costs. (b) Negative Covenants. So long as any of the CFA Obligations remain unperformed, Developer covenants and agrees that Developer will not: City of Fort Worth,Texas Escrow Pledge Agreement CFA Official Release Date:05.26.2022 jle Revised 09.07.2017 ME Page 2 of 9 (i) assign or transfer any rights of Developer in the Security Funds; or (ii) create any Lien in the Security Funds, or any part thereof, or permit the same to be or become subject to any Lien except the security interest herein created in favor of Fort Worth. SECTION 5. EVENTS OF DEFAULT. Developer shall be in default under this Agreement only upon the happening of any of the following events (a"Default"): (a) default in the timely payment for or performance of the CFA Obligations after written notice thereof has been given to Developer and Escrow Agent and such default is not cured within seven (7) days after such notice; (b) any affirmative or negative covenant is breached by Developer. SECTION 6. RIGHTS AND REMEDIES OF FORT WORTH UPON AND AFTER DEFAULT. (a) Remedy. Upon the occurrence of a Default, Fort Worth shall have the right to direct Escrow Agent to transfer to Fort Worth all of the Security Funds. Escrow Agent is hereby authorized to transfer the Security Funds immediately upon the receipt of a written statement purporting to be executed by an authorized representative of Fort Worth stating that: (i) a Default by Developer has occurred related to the CFA Obligations; (ii) written notice of such Default has been given by Fort Worth to Developer and Escrow Agent and such Default was not cured within seven (7) days after delivery of such notice; and (iii) Fort Worth is entitled to have the Security Funds transferred in accordance with the Agreement. (b) Notices.Any notice required or permitted to be given to any party hereto shall be given in writing, shall be personally delivered or mailed by prepaid certified or registered mail to such party at the address set forth below, and shall be effective when actually received. To Developer: Gabriel Southwest,LLC 410 N. Carroll Ave., Suite 180 Southlake, Texas 76092 City of Fort Worth,Texas Escrow Pledge Agreement CFA Official Release Date:05.26.2022 jle Revised 09.07.2017 ME Page 3 of 9 To: Escrow Agent: Title Partners, LLC 5501 LBJ Freeway, Suite 200 Dallas, Texas 75240 Attn: Debby S. Moore (214) 987-6789 Debb. .Moore e,titlepartersllc.com To: City of Fort Worth City of Fort Worth Attn: City Treasurer 200 Texas Street Fort Worth, TX 76102 With a copy to: City of Fort Worth Attn: Contract Management Office 200 Texas Street Fort Worth, TX 76102 Any party may change its address for notice by giving all other parties hereto notice to such change in the manner set forth in this Section no later than ten (10) days before the effective date of such new address. SECTION 7. EXCLUSIVE RIGHTS AND REMEDIES. If the Developer fails to perform its obligations under the CFA, Fort Worth's sole and exclusive remedy shall be to complete the obligations of Developer at Developer's expense. hi furtherance of such sole and exclusive remedy, Fort Worth is entitled to exercise its rights as set forth in Section 6 hereof. SECTION 8. SUBSTITUTION OF COLLATERAL. Notwithstanding any contrary provision in this Agreement, Developer shall have the right, at any time and from time to time, to obtain releases of all or any part of the Security Funds (hereinafter called the "Released Collateral")upon satisfaction of the following conditions: (a)Developer shall provide Fort Worth and Escrow Agent written notice(the"Substitution Notice") that the Developer desires to obtain Released Collateral in exchange for a contemporaneous substitution of an alternate Financial Security acceptable to Fort Worth (as specified and described in the Substitution Notice); and City of Fort Worth,Texas Escrow Pledge Agreement CFA Official Release Date:05.26.2022 jle Revised 09.07.2017 ME Page 4 of 9 (b) Developer shall pledge to, or obtain for the benefit of Fort Worth, and deliver to Fort Worth the alternate Financial Security acceptable to Fort Worth (the "Substituted Collateral") which Substituted Collateral shall in the aggregate be at least equal to the Estimated Developer's Cost; and (c) Said Substituted Collateral shall be of sufficient amount(s)to cover all work which has occurred prior to the substitution of collateral provided for in this Section. Upon satisfaction of the above-specified conditions, Escrow Agent shall be authorized (without the further consent of Fort Worth) to return to Developer the original Security Funds in Escrow Agent's possession that represent or evidence the Released Collateral or take such other action with respect to the Released Collateral as Developer may request or direct. Developer shall pay the expenses incurred by Escrow Agent In connection with obtaining each such release and substitution. SECTION 9 REDUCTIONS IN SECURITY FUNDS. (a) Notwithstanding any contrary provision in this Agreement, Developer shall have the right to reductions in the Security Funds (hereinafter called a "Reduction in the Security Funds"), in accordance with this Section 9. (b) Developer may request a Reduction in the Security Funds only if the initial term of the CFA is more than four(4) months. (c) Developer may make no more than two (2) Reductions in the Security Funds. (d) The first Reduction in the Security Funds may only be made after: (i) One-third of the value of Community Facilities being constructed pursuant to the CFA have been verified by the City's inspectors to have been constructed in accordance with the engineering plans; and (ii) The City has received an affidavit and release of lien executed by the contractor indicating that the contractor has been paid by the Developer and the contractor has paid all subcontractors and material suppliers for one-third of the value of the Community Facilities being constructed pursuant to the CFA. (iii) After the City has confirmed that one-third of the Community Facilities have been constructed in accordance with the engineering plans and the City has received an affidavit and release of lien from the contractor in the amount of one-third of the value of the Community Facilities being constructed pursuant to the CFA,then the Security Funds may be reduced in an amount that does not exceed one-third of the amount of the Security Funds. (e) The second Reduction in the Security Funds may only be made after: City of Fort Worth,Texas Escrow Pledge Agreement CFA Official Release Date:05.26.2022 jle Revised 09.07.2017 ME Page 5 of 9 (i) Two-thirds of the value of Community Facilities being constructed pursuant to the CFA have been verified by the City' s inspectors to have been constructed in accordance with the engineering plans; and (ii) The City has received an affidavit and release of lien executed by the contractor indicating that the contractor has been paid by the Developer and the contractor has paid all subcontractors and material suppliers for two-thirds of the value of the Community Facilities being constructed pursuant to the CFA. (iii) After the City has confirmed that two-thirds of the Community Facilities have been constructed in accordance with the engineering plans and the City has received an affidavit and release of lien from the contractor in the amount of two-thirds of the value of the Community Facilities being constructed pursuant to the CFA,then the financial guarantee may be reduced in an amount that does not exceed two-thirds of the amount of the financial guarantee if more than thirty calendar days have passed since the first reduction in the financial guarantee. (f) The Developer must pay the CFA amendment fee to the City before a Reduction in the Security Funds will be authorized by the City. (g) City, Developer and Escrow Agent will execute an amendment to this Agreement to authorize a Reduction in the Security Funds. The amount of Withdrawn Funds released by Escrow Agent to Developer shall equal the difference between the full balance of the Security Funds on the date that the Withdrawal Notice is submitted to Escrow Agent and one hundred twenty-five percent (125%) of the Estimated Cost to Complete reflected in such Withdrawal Notice. In no event shall Escrow Agent release an amount of Withdrawn Funds that causes the balance of the Security Funds to fall below one hundred twenty-five percent (125%) of the Estimated Cost to Complete reflected in such Withdrawal Notice. SECTION 10. NON-ASSIGNABILITY OF FORT WORTH'S RIGHTS. The rights,powers,and interests held by Fort Worth hereunder in and to the Security Funds may not be transferred or assigned by Fort Worth in whole or in part. Any attempted transfer or assignment shall be absolutely void and shall entitle Developer to a release of all Security Funds. SECTION 11. NO WAIVER. No waiver by Fort Worth of any Default shall be deemed to be a waiver of any other subsequent Default. No delay or omission by Fort Worth in exercising any right or power hereunder shall impair any such right or power or be construed as a waiver thereof, nor shall any single or partial exercise of any such right or power preclude other or further exercise thereof. SECTION 12. BINDING EFFECT. City of Fort Worth,Texas Escrow Pledge Agreement CFA Official Release Date:05.26.2022 jle Revised 09.07.2017 ME Page 6 of 9 This Agreement shall be binding on the parties,their successors and assigns.No provision of this Agreement may be amended, waived, or modified except pursuant to a written instrument executed by Fort Worth, Escrow Agent and Developer. SECTION 13. CHOICE OF LAW; VENUE This Agreement is to be construed and interpreted in accordance with the laws of the State of Texas. Venue shall be in the state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas,Fort Worth Division. SECTION 14. COUNTERPARTS. This Agreement may be executed in any number of multiple counterparts and by different parties on separate counterparts,all of which when taken together shall constitute one and the same agreement. SECTION 15. INDEMNITY. DEVELOPER HEREBY AGREES TO RELEASE, HOLD HARMLESS, AND INDEMNIFY ESCROW AGENT (AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES) FROM AND AGAINST ALL CLAIMS, DAMAGES, EXPENSES, COSTS, SUITS AND OTHER LIABILITY OF ANY HIND WHATSOEVER THAT ARISE OUT OF OR ARE DIRECTLY OR INDIRECTLY RELATED TO THE PERFORMANCE BY ESCROW AGENT OF ITS DUTIES HEREUNDER EXCEPT FOR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ESCROW AGENT OR ITS DIRECTORS,OFFICERS,EMPLOYEES, AGENTS OR REPRESENTATIVES AND DEVELOPER HEREBY AGREES TO RELEASE, HOLD HARMLESS, AND INDEMNIFY FORT WORTH (AND ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES) FROM AND AGAINST ALL CLAIMS, DAMAGES, EXPENSES, COSTS,SUITS AND OTHER LIABILITY OF ANY HIND WHATSOEVER THAT ARISE OUT OF OR ARE DIRECTLY OR INDIRECTLY RELATED TO ANY ACTIONS OR INACTION BY FORT WORTH WITH RESPECT TO THIS AGREEMENT. SECTION 16. PAYMENT OF ESCROW FEES Developer will be responsible for the payment of all fees to Escrow Agent associated with this Agreement. [REMAINDER OF THIS PAGE INTENTIONALLY BLANK] City of Fort Worth,Texas Escrow Pledge Agreement CFA Official Release Date:05.26.2022 jle Revised 09.07.2017 ME Page 7 of 9 ACCORDINGLY, the City of Fort Worth, Developer and Escrow Agent have each caused this instrument to be executed in each entity's respective name by its duly authorized signatories effective as of the date executed by the City Manager or his/her designee. CITY OF FORT WORTH DEVELOPER Gabriel Southwest LLC f/C�i2Ct� ���i�i 1SEZLf7 ECl7`Gl7ag- Dana Burghdoff(Jun 13,20 11:58 CDT Dean Eldridge(Jun 7, 02212:01 CDT) Dana Burghdoff Name: Dean Eldridge Assistant City Manager Title: Manager Date: Jun 13,2022 Date: Jun 7,2022 Approved at to Form &Legality: ESCROW AGENT Title Partners, LLC Richard A.McCracken(Jun 7,2022 15:23 CDT) Richard A. McCracken Sr. Assistant City Attorney M&C No. Name: Debby Moore Date: Jun 7,2022 Title: Lending Agent ATTEST: 0�°FORr00000 A, �� Date: Jun 7,2022 o 0 �0 $�1d ��s 0 tag 2� Contract Compliance Manager ° ° Jannette S.Goodall(Jun 13,202212:40 CDT) o °* By signing I acknowledge that I am the Jannette Goodall d� °°°000000°°° person responsible for the monitoring and City Secretary ��Q*Xpsoa administration of this contract, including ensuring all performance and reporting requirements. yanie scarlett Morales Janie Scarlett Morales(Jun 7,2022 14:33 CDT) Janie Scarlett Morales Development Manager OFFICIAL RECORD CITY SECRETARY City of Fort Worth,Texas FT. WORTH, TX Escrow Pledge Agreement CFA Official Release Date: 05.26.2022 jle Revised 09.07.2017 JLE Page 8 of 9 ATTACHMENT "1" Changes to Standard Agreement None. City of Fort Worth,Texas Escrow Pledge Agreement CFA Official Release Date:05.26.2022 jle Revised 09.07.2017 ME Page 9 of 9