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HomeMy WebLinkAboutContract 47906 Developer and Project Information Cover Sheet: Developer Company Name: Marine Creek All Storage,LLC Address, State, Zip Code: 82 West Armstrong Dr,Mustang OK 73064 Phone&Email: 405-376-4509 Authorized Signatory, Title: Mark McDowell, Manager Project Name and Brief All Storage Marine Creek Description: Project Location: SoutheastCorner of Longhorn Rd and Marine Ceek Pkwy Plat Case Number: None Plat Name: None Mapsco: 61 W-61 S Council District: 7 City Project Number: 100234 CFA Number: 2016-044 DOE Number: None To be completed by staff. Received by: Date: Azo OFFICIAL RECORD CITY SECRETARY J FT.WORTH,TX City of Fort Worth,Texas , Standard Community Facilities Agreement CFA Official Release Date: 10.07.2015 ` Page 1 of 11 STANDARD COMMUNITY FACILITIES AGREEMENT THE STATE OF TEXAS § City Secretary COUNTY OF TARRANT § Contract No. +—qqu� WHEREAS, Marine Creek All Storage, LLC , ("Developer"), desires to make certain specific improvements as described below and on the exhibits attached hereto ("Improvements") related to a project generally described as All Storage Marine Creek ("Project") within the City or the extraterritorial jurisdiction of Fort Worth, Texas ("City"); and WHEREAS, the City has no obligation to participate in the cost of the Improvements or Project; and WHEREAS, any future City participation in this CFA is subject to the availability of City funds and approval by the Fort Worth City Council and shall be memorialized as an amendment to this Agreement; and WHEREAS, the Developer and the City desire to enter into this Community Facilities Agreement ("CFA" or "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: General Requirements A. The Policy for the Installation of Community Facilities ("Policy") dated March 2001, approved by the City Council of the City of Fort Worth, as amended, is hereby incorporated into this Agreement as if copied herein verbatim. Developer agrees to comply with all provisions of said Policy in the performance of its duties and obligations hereunder and to cause all contractors hired by Developer to comply with the Policy in connection with the work performed by said contractors. B. Developer shall provide financial security in conformance with paragraph 6, Section II, of the Policy and recognizes that there shall be no reduction in the collateral until the Project has been completed and the City has officially accepted the Improvements. Developer further acknowledges that said acceptance process requires the Developer's contractor(s) City of Fort Worth,Texas OFFICIAL RECORD Standard Community Facilities Agreement CFA Official Release Date: 10.07.2015 CITY SECRETARY Page 2 of 11 FT,WORTH,TX to submit a signed affidavit of bills paid and consent of Surety signed by its surety to ensure the contractor has paid any sub-contractor(s) and suppliers in full. Additionally, the contractor will provide in writing that the contractor has been paid in full by Developer for all the services provided under this contract. C. 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 the City-approved construction plans, specifications and cost estimates provided for the Project and the exhibits attached hereto. D. The following checked exhibits describe the Improvements and are incorporated herein: Water (A) ®, Sewer (A-1) ®, Paving (B) ❑, Storm Drain (B-1) ®, Street Lights & Signs (C) ❑. E. The Developer shall award all contracts for the construction of the Improvements in accordance with Section II, paragraph 7 of the Policy and the contracts shall be administered in conformance with paragraph 8, Section II, of the Policy. Developer shall ensure its contractor(s)pays the then-current City-established wage rates. F. For all Improvements included in this Agreement for which the Developer awards construction contract(s), Developer agrees to the following: i. To employ a construction contractor who is approved by the director of the department having jurisdiction over the infrastructure to be constructed, said contractor to meet City's requirements for being prequalified, insured, licensed and bonded to do work in public ways and/or prequalified to perform water/wastewater construction as the case may be. ii. To require its contractor to furnish to the City a payment and performance bond in the names of the City and the Developer for one hundred percent (100%) of the contract price of the infrastructure, and a maintenance bond in the name of the City for one hundred percent (100%) of the contract price of the infrastructure for a period of two (2) years from the date of final acceptance insuring the maintenance and repair of the constructed infrastructure during the term of the City of Fort Worth,Texas Standard Community Facilities Agreement CFA Official Release Date: 10.07.2015 Page 3 of 1 l maintenance bond. All bonds to be furnished before work is commenced and to meet the requirements of Chapter 2253, Texas Government Code. iii. To require the contractor(s) it hires to perform the construction work contemplated herein to provide 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 shall be named as additional insured on all insurance required by said documents and same will be evidenced on the Certificate of Insurance (ACORD or other state- approved form) supplied by the contractor's insurance provider and bound in the construction contract book. iv. To require its contractor to give 48 hours advance notice of intent to commence construction to the City's Construction Services Division so that City inspection personnel will be available; to require the contractor to allow the construction to be subject to inspection at any and all times by City inspection forces, to not install or relocate any sanitary sewer, storm drain, or water pipe unless a responsible City inspector is present and gives his consent to proceed, and to make such laboratory tests of materials being used as may be required by the City. V. To require its contractor to have fully executed contract documents submitted to the City in order to schedule a Pre-Construction Meeting. The submittal should occur no less than 10 working days prior to the desired date of the meeting. No construction will commence without a City-issued Notice to Proceed to the Developer's contractor. vi. To delay connections of buildings to service lines of sewer and water mains constructed under this Agreement, if any, until said sewer and water mains and service lines have been completed to the satisfaction of the Water Department. G. Developer shall provide at its expense, unless otherwise agreed to by City, all engineering drawings and documents necessary to construct the improvements under this Agreement. H. Developer shall cause the installation or adjustment of the required utilities to serve the development or to construct the Improvements required herein. City of Fort Worth,Texas Standard Community Facilities Agreement CFA Official Release Date: 10.07.2015 Page 4 of 11 I. City shall not be responsible for payment of any costs that may be incurred by Developer in the relocation of any utilities that are or may be in conflict with any of the community facilities to be installed hereunder. J. Developer hereby releases and agrees to indemnify, defend and hold the City harmless for any inadequacies in the preliminary plans, specifications and cost estimates supplied by the Developer for this Agreement. K. Developer agrees to provide, at its expense, all necessary rights of way and easements across property owned by Developer and required for the construction of the current and future improvements provided for by this Agreement. L. The Developer further 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 on account of any injuries or damages sustained by any persons (including 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 properly safeguard the work, or on account of any act, intentional or otherwise, neglect or misconduct of said Developer, its contractors, sub-contractors, officers, agents or employees, 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. M. Developer will further 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 in any way connected with, the construction of the infrastructure 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, and hold harmless the City for any losses, damages, costs or expenses suffered by the City or caused as a result of said contractor's failure to complete the work and City of Fort Worth,Texas Standard Community Facilities Agreement CFA Official Release Date: 10.07.2015 Page 5 of 11 construct the improvements in a good and workmanlike manner, free from defects, in conformance with the Policy,and in accordance with all plans and specifications. N. 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 the Developer with its contractor along with an assignment of all warranties given by the contractor, 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 party beneficiary of such contracts. O. Inspection and material testing fees are required as follows: i. Developer shall pay in cash water and wastewater inspection fees and material testing fees equal to two percent(2%) for a total of 4% of the developer's share of the total construction cost as stated in the construction contract. ii. Developer shall pay in cash paving and storm drain inspection fees equal to four percent (4%) and material testing fees equal to two percent (2%) for a total of 6% of the developer's share of the total construction cost as stated in the construction contract. iii. Developer shall pay in cash the total cost of streetlights or if the city is not installing the streetlights, inspection fees equal to four percent (4%) of the developer's share of the streetlight construction cost as stated in the construction contract. iv. Developer shall pay in cash the total cost of street signs. P. COMPLETION WITHIN 2 YEARS i. Developer shall complete the Improvements within two (2) years, provided, however, if construction of the Improvements has started within the two year period, the developer may request that the CFA be extended for one additional year. ii. Nothing contained herein is intended to limit the Developer's obligations under the Policy, this Agreement, its financial guarantee, its agreement with its contractor or other related agreements. iii. The City may utilize the Developer's financial guarantee submitted for this Agreement to cause the completion of the construction of the Improvements if at City of Fort Worth,Texas Standard Community Facilities Agreement CFA Official Release Date: 10.07.2015 Page 6 of l 1 the end of two (2) years from the date of this Agreement (and any extension period) the Improvements have not been completed and accepted. iv. 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 same before the expiration of two (2) years if the Developer breaches this Agreement, becomes insolvent or fails to pay costs of construction and the financial guarantee is not a Completion Agreement. If the financial guarantee is a Completion Agreement and the Developer's contractors and/or suppliers are not paid for the costs of supplies and/or construction, the contractors and/or suppliers may put a lien upon the property which is the subject of the Completion Agreement. (REMAINDER OF PAGE INTENTIONALLY LEFT BLAND City of Fort Worth,Texas Standard Community Facilities Agreement CFA Official Release Date: 10.07.2015 Page 7 of 11 ACCORDINGLY,the City of Fort Worth and Developer have each caused this instrument to be executed in quadruplicate in each entity's respective name by its duly authorized signatories effective as of the date executed by the City's City Manager or his/her designee. CITY OF FORT WORTH DEVELOPE Marine Creek S rage,LLC a Jesus J. Chapa Assistant City Manager Name: 4aAKicDowell l Title: Manager Date: �/ ^01 d +`� O� Date: (0/(, i Recommended by: ATTEST: (Only if required by Developer) Wendy C abulal, EMBA, P.E. Development Engineering Manager Signature Water Department Name: at-leb 0, tj 6-�/ - Douglas&. Wiersig, P.E. Director Transportation& Public Works Department Approved as to Form & Legality: ATTEST: FORrt Richard A. McCracken M J. kaW }..o Assistant City Attorney City Secretary $ 8 M&C No. Date: NO M&C REQUIRED rJ/A City of Fort Worth,Texas OFFICIAL RECORD Standard Community Facilities Agreement CFA Official Release Date: 10.07.2015 CITY SECRETARY Page 9 of 11 FT.WORTH, TX Check items associated with the project being undertaken; checked items must be included as Attachments to this Agreement Included Attachment ® Attachment l - Changes to Standard Community Facilities Agreement ® Location Map ® Exhibit A: Water Improvments ® Water Cost Estimate ® Exhibit A-1: Sewer Improvements ® Sewer Cost Estimate ❑ Exhibit B: Paving Improvements ❑ Paving Cost Estimate ® Exhibit 13-1: Storm Drain Improvements ® Storm Drain Cost Estimate ® Exhibit C: Street Lights and Signs Improvements ® Street Lights and Signs Cost Estimate (Remainder of Page Intentionally Left Blank) City of Fort Worth,Texas Standard Community Facilities Agreement CFA Official Release Date: 10.07.2015 Page 10 of 11 ATTACiIIlKENT"1" Changes to Standard Agreement Community Facilities Agreement City Project No. 100234 None City of Fort Worth,Texas Standard Community Facilities Agreement CFA Official Release Date: 10.07.2015 Page 11 of 11 L ;; 0W J U CO BU Ct W HAMPSHIRE z 0 WO > Y a r� �6 a Z LL o1�W1 0 �0 0 RO o W PS Ln J O1NIdLD — O U 1 ` �h ^ 01 3 l8 D LLIN w o z CQ 5 `JI..�J (,J Joao G W z Ib QJ P� E Z O i G PO 34 SIIVd of 7 LL — Z LL a ��� 300 rooa I— L O T W 3UO-z ow a O .1 w a0 _ sta3eoa 0 O F LL X Z Y LL U co ��� ��a U /'� w O O � � w W O �/ Q z � VIaV0 O J a O CD N14� loisiae w Li F" S O� W U) 's a6 z U) I— J JY m Q o Z ..y . .r F11, j- �— CONNECT TO EX. 16"WATER LINE NORTH 161•W i6"W 18"W 7V W 16"W W -"— �, �- L-- LONGHORN ROAD =��, �L---— .��__ flMw m ®a,+� m GRAPHIC SCALE IN FEET ae" 46"W —— e W ———48'W ,.-,y ,&"1 --14'' _ 0 75 150 300 a — PROP. 12"— 1 - - - - - - - -WATERLINE 1 I DEAD END OF 1 I PUBLIC WATER LINE I i I x I CONNECT TO EX. 12"WATER LINE 1 I PROP. 12"WATER DEAD END OF LINE EXTENSION PUBLIC WATER 1 1 LINE -orl PROP.12"x12"TEE \ �1 0 � I 1 PROP.12"WATER I I ' 1 x �. LINE EXTENSION w� \ LA � INI 1\ I II I G � \ 16.0 --- �..� 1r END OF PROP. WATER LINE— EXTENSION. 1rq CONNECT TO EX. ' \\ 8"WATER LINE EXHIBIT A: WATER IMPROVEMENTS aro ALL STORAGE MARINE CREEK IGmIey*Horn �n . U) 080000 O8O 880000 O O CO O S 00 cq 0 cQ W(O Lq(0 N 0 !�! ~ 6A 69 69 E9 0 6H fA fA EA b O w F LU W H W OO O O o 0 0 0 0 0 0 0 U OOO CO OOo 6O V 00.0000 0.000 OEAO CL W O MfA 64 IQ O Oct R 0 1n H O m N N r 6 Z H /9 f9 r f9 f9 J O N N 7 0 M co N m(oID r H N O O O F W H U) z LLI2 LU X LU 0 H a Q � o g w z r ¢ w H ~ U U) Z z Q j = a C7 NC Uw a Lu U O z x = z Q Qw LL U 0 U) J o a m Q 7 N N (0 M M m N M U ~ z y _ _ c 2 d' - m S v. — a u G > u v vUvi°i = v o W r( o c e o 0 0 0 0 0 0 O z W Q S @a4« @ « a a /(AE00, "1 § / =aa�� _ R § § @«$« R«@@a CL §§ �69 0C8) § _ . _ ( C14 C14 2 @ k xk a. EE E � 3 u F- k \ LLI� o � F- w § M � z CL < q \ / U) 3 m ) 3-� \ w ! ! & & ! II » � ! ) i � � ( k /} a \ £ } § :;t F- \ w § 3 $ ! @3 » 2g @mRmo $ ; ; ; $ 2 § ) ) § § ) ) ) ) k w _ . , , � � , , , E d � Q9 NORTH x �( LONGHORN ROAD = L GRAPHIC SCALE IN FEET _———— —-----—— --+--1— — 0 75 150 300 PROP.18'RCP STORM CULVERT I - - _ - _ _. _ _ _ .J I x I I I I 1 � I MJ o PROP. 18'RCP \ F 1 STORM CULVERT 1 8[ 1 A I I I 1xILL �a x ` z 1 2 EXHIBIT B-1: STORM SEWER IMPROVEMENTS ALL STORAGE MARINE CREEK IGmley*Horn F- 00 O 0000 0 0 0 0 0 0 0 0 0 0 V m 0 U)0 O J N N P- In M Q : I,O N GO F- 0 H f9 i9 W F- 2 2 w LOOM w S O S O U m fu, a (»co en Ln F c.i Z is (a J¢ 'T a r- O F- 2 M F- F- z LU 2 w X 0 Q 0 g z O F } w F w F- V u Z m j a CEJ w Lu J U � a U M H O "-"1 f1 0 w O Z N N U Z Q w N LL o U N1` Nv U O V J F J w Q N z 6 > 41 h -1 N � � C A Al w VW = at W u O V O O ftp M M M O z w c/DEVELOPMENT BOND GUARANTEEING PERFORMANCE AND PAYMENT OF O IMPROVEMENTS Y Bond No. 5086533 KNOW ALL MEN BY THESE PRESENTS,that we,Marine Creek All Storage,LLC (82 West Armstrong Drive,Mustang,OK 73064),as Principal, and Great American Insurance Company,a corporation organized and existing under the laws of the State of Ohio and fully authorized to transact business in the State of Texas,as surety,are held and firmly bound unto CITY OF FORT WORTH,TEXAS, 1000 Throckmorton Street,Fort Worth,Texas,76102,as Obligee,in the penal sum of Two Hundred Ten Thousand Five Hundred Sixty Three and 88/100 ($210,563.88),lawful money of the United States of America,for the payment of which well and truly to be made,we bind ourselves,our heirs,executors,administrators,successors and assigns, jointly and severally,firmly by these presents. WHEREAS, Marine Creek All Storage, LLC has agreed to construct in Marine Creek All Storage subdivision, Addition, City Proiect Number 1000234 in the CITY OF FORT WORTH, TEXAS the followingimprovements: Water,Sewer and Storm Drainage WHEREAS, in the event of bankruptcy, default or other nonperformance by Principal, claims against Principal or the development,Obligee may be left without adequate satisfaction. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall construct, or have constructed, the improvements herein described, and shall pay for the cost of all labor, materials and equipment furnished in connection with the construction of said improvements,and shall save the Obligee harmless from any loss, cost or damage by reason of its failure to complete the construction of said improvements or by reason of its failure to pay for the cost of same, then this obligation shall be null and void, otherwise to remain in full force and effect; and upon receipt of a claim by the City of Fort Worth indicating that the construction of said improvements has not been completed, or that the costs for same have not been paid, the Surety will pay to the City of Fort Worth such amount up to the amount of this bond which will allow the City of Fort Worth to complete construction of said improvements and to pay for the costs of same. We hereby agree with you that the draft(s) drawn under and in compliance with the terms of this bond will be duly honored upon presentation at: (SURETY): GREAT AMERICAN INSURANCE COMPANY, (SURETY ADDRESS): 301 E. 4`h Street,Cincinnati,Ohio 45202 Attn: Remy Bickoff or by facsimile to Fax Number (949) 891-0224, confirmed by a phone call at (949)701-4613. PROVIDED FURTHER, that this bond shall automatically be increased by the amount of any change order, supplemental agreement or amendment, which increases the price of the aforementioned contract. PROVIDED FURTHER, that if any legal action be filed on this bond, the laws of the State of Texas shall apply and that venue shall lie exclusively in Tarrant County,Texas. AND PROVIDED FURTHER, that the said surety, for value received, hereby stipulates and agrees that no change, extension of time,alteration or addition to the terms of any contract for the public affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time,alteration or addition to the terms of such contract. This bond is given pursuant to the provisions of Section 212.073 of the Texas Local Government Code,as such may amended from time to time. Signed,sea led dated this 2°d day of June,2016. Marine Creek/All Storane,LLC Great American Insurance Company Z , Surety 7By: By: c McDowell,Agent Remy Bickoff,Attorney-in-fact GREAT AMERICAN INSURANCE COMPANY® Administrative Office: 301 E 4TH STREET • CINCINNATI,OHIO 45202 • 513-369-5000 • FAX 513-723-2740 The number of persons authorized by this power of attorney is not more than one Bond No. 5086533 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS:Tliat the GREAT AMERICAN INSURANCE COMPANY,a corporation organized and existing under and by virtue of the laws of the State of Ohio,does hereby nominate,constitute and appoint the person or persons named below its true and lawful attomey-in- fact,for it and in its name,place and stead to execute on behalf of the said Company,as surety,the specific bond,undertaking or contract of suretyship referenced herein;provided that the liability of the said Company on any such bond,undertaking or contract of suretyship executed under this authority shall not exceed the limit stated below.The bond number on this Power of Attorney must match the bond number on the bond to which it is attached or it is invalid. Name Address Limit of Power Remy Bickoff 19900 MacArthur Blvd.,Ste.658 $210563.88— Irvine,CA 92612-2445 IN WITNESS WHEREOF the GREATAMERICAN INSURANCE COMPANY has caused these presents to be signed and attested by its appropriate officers and its corporate sea]hereunto affixed this 2nd day of June 1 2016 Attest GREAT AMERICAN INSURANCE COMPANY M j ..: � (/)"J, r . 3 '4 e, /Z4 Assistant Secretary Divisional Senior Vice President STATE OF OHIO,COUNTY OF HAMILTON-ss: DAVID C.KrrCHiN(877-377-2405) On this 2nd day of June 12016 ,before me personally appeared DAVID C. KITCHIN,to me known,being duly sworn,deposes and says that he resides in Cincinnati,Ohio,that he is a Divisional Senior Vice President of the Bond Division of Great American Insurance Company,the Company described in and which executed the above instrument:that he knows the seal of the said Company;that the seal affixed to the said instrument is such corporate seal;that it was so affixed by authority of his office under the By-Laws of said Company,and that he signed his name thereto by like authority. SiM A.WOW �Pubic,Shr dOh(o �-�'" LSC'_ o-/r.�9�• *CMMhaioe E1PhW D&18= This Power of Attorney is granted by authority of the following resolutions adopted by the Board of Directors of Great American Insurance Company by unanimous written consent dated June 9,2008. RESOLVED: That the Divisional President,the several Divisional Senior Vice Presidents.Divisional ice Presidents and Dil2sonal assistant Vice Presidents,or any one of them,be and hereby is authorized,from time to time,to appoint one or more Attornevs-in-Fact to execute on behalf of the Compatry, as suety,any and all bands,undertakings and contracts ofsuretyship,or other written obligations in the nature thereof-to prescribe their respective duties and the respective limits of their authority:and to revoke any such appointment at art),time. RESOLVED FURTHER: That the Companv seal and the signature of anv of the aforesaid officers and anv Secretary or assistant Secr•etary of the Company may be aged by facsimile to any power of attornc>,or certificate of either given for the execution of any bond,undertaking,contract oJ'sur•etyship, or other written obligation in the nature thereof,such signature and seal when so used being hereby adopted by the Compam,as the original signature ojsuch officer and the original seal ofthe Company,to be valid and binding upon the Company m ith the same force and effect as though manually affcred. CERTIFICATION I,STEPHEN C.BERAHA,Assistant Secretary of Great American Insurance Company,do hereby terrify that the foregoing Power of Attorney and the Resolutions of the Board of Directors of June 9,2008 have not been revoked and are now in full force and effect. Signed and sealed this 2nd clay of June 2016 arsmw Assistant Secretary 511940(6/15) Q-orporations Section E 0 Carlos H. Cascos P.O.Box 13697 CSP F� Secretary of State Austin,Texas 78711-3697 Office of the Secretary of State August 18, 2015 Capitol Services Inc P O Box 1831 Austin, TX 78767 USA RE: MARINE CREEK ALL STORAGE, LLC File Number: 802274756 It has been our pleasure to file the certificate of formation and issue the enclosed certificate of filing evidencing the existence of the newly created domestic limited liability company (llc). Unless exempted, the entity formed is subject to state tax laws, including franchise tax laws. Shortly, the Comptroller of Public Accounts will be contacting the entity at its registered office for information that will assist the Comptroller in setting up the franchise tax account for the entity. Information about franchise tax, and contact information for the Comptroller's office, is available on their web site at http://window.state.tx.us/taxinfo/franchise/index.html. The entity formed does not file annual reports with the Secretary of State. Documents will be filed with the Secretary of State if the entity needs to amend one of the provisions in its certificate of formation. It is important for the entity to continuously maintain a registered agent and office in Texas. Failure to maintain an agent or office or file a change to the information in Texas may result in the involuntary termination of the entity. If we can be of further service at any time, please let us know. Sincerely, Corporations Section Business & Public Filings Division (512) 463-5555 Enclosure Cane visit us on the internet at http://ivti>>1v.sos.state.tx.us/ Phone: (512)463-5555 Fax: (5 12)463-5709 Dial;7-1-1 for Relay Services Prepared by: Virginia Tobias TID: 10285 Document: 624629480002 Corporations Section TF pFCarlos H. Cascos P.O.Box 13697 ��P � Secretary of State Austin,Texas 78711-3697 Office of the Secretary of State CERTIFICATE OF FILING OF MARINE CREEK ALL STORAGE, LLC File Number: 802274756 The undersigned, as Secretary of State of Texas, hereby certifies that a Certificate of Formation for the above named Domestic Limited Liability Company (LLC) has been received in this office and has been found to conform to the applicable provisions of law. ACCORDINGLY, the undersigned, as Secretary of State, and by virtue of the authority vested in the secretary by law, hereby issues this certificate evidencing filing effective on the date shown below. The issuance of this certificate does not authorize the use of a name in this state in violation of the rights of another under the federal Trademark Act of 1946, the Texas tradernark law, the Assumed Business or Professional Name Act, or the common law. Dated: 08/17/2015 Effective: 08/17/2015 0� A COD Carlos H. Cascos Secretary of State Come visit us on the internet at hup://wtivw.sos.state.tx.us/ Phone: (512)463-5555 Fax: (512)463-5709 Dial: 7-1-1 for Relay Services Prepared by: Virginia Tobias TID: 10306 Document: 624629480002 Corm 205 cT,__ This space reserved for office use. C4 I~ILED Revised 05/11 ir,' uC�n wfc+ In the Office of the Secretary of State of Texas Submit in duplicate to. Secretary of Stale AUG 17 2015 P.O. Box 13697 Certificate of Formation Austin, TX 78711-3697 Limited Liability Company Corporations Section 512 463-5 55 5 FAX: 512 463-5709 Filing Fee: $300 Article 1 — Entity Namc and Type The filing entity being formed is a limited liability company. The name of the entity is: MARINE CREEK ALL STORAGE, LLC The MMIC must contain the words"limited liability company,""limited company,"or an abbreviation of one of(hese phrases. Article 2— Registered Agent and Registered Offiec (See instructions.Select and complete either A or B and complete C.) ✓❑ A. The initial registered agent is an organization (cannot be entity named above) by the name of': RMN PROPERTY COMPANY OR ❑ B. The initial registered agent is an individual resident of the state whose name is set forth below: First Name J'L1. Las(Name suffix C, The business address of the registered agent and the registered office address is: 301 S. Sherman,Suite 100 Richardson TX 75081 Siree(it ddre.rs City State Zip Corte Article 3—Governing Authority (Select and complete Cilhcr A or B and provide the name and address of each goveming person.) ❑✓ A, The limited liability company will have managers.The name and address of each initial manager are set forth below, ❑ B. The limited liability company will not have managers. The company will be governed by its members,and the name and address of each initial member arc set forth below, GOVERNING PERSON 1 NAME(Cater the name oreilher an individual or an organization,but not both.) IF INDIVIDUAL MARK E. McDOWELL First Nume A4.i. Las(Name S}rffrx OR IF QRCANIZATION Organization Nome ADDRESS 82 Armstrong Drive Mustang OK USA 73064 SU•ee!or Afai(ia i(chh-ess City Stale Coun(r, Zip Code Form 205 4 GOVERNING PERSON 2 NAIIE(Enter Ibe name of,wwr an individual or on organization,but not ho(h.) IF INDI\'I )IrAI. Ffirst Nam, Af .1. Last Name Suf l.r OR If ORGANIZATION Organization Name ADDRESS Streel or Afailin Ad(h-ess City Stale Country 7iP Code GOVERNING PERSON 3 NAME(Linter the name of either an individual nr an organization,but not buth.) IF INDIVIDUAL, First Name tLl. Last None Suffix OR IF 0ItGAN IZA110N Or;ganimdon Name ADDRESS Sb-eet or Alailing Address CitV State Con ntrV Zip Code Artiele 4 —Purpose The purpose for which the company is formed is for the transaction of any and all lawful purposes for which a limited liability company may be organized tinder the Texas Dusiness Organizations Code, Supplemental Provisions/Information Text Area: The attached addendum,ifany,is incorporated herein by relcrence. The primary purpose of the Company is to(a)acquire,own,hold,maintain,manage, operate, improve,develop, finance, refinance,pledge, mortgage,encumber,sell,sell and lease back,exchange,convey, lease,ultimately dispose of and otherwise deal with 9.283 acres of land located at the SEQ of Marine Creek Parkway and Longhorn Drivc in Fort Worth, 'Tarrant County,Texas(the"Property"), and (b)transact any and all lawfill business for which a limited liability company may be organized according to the Code that is incident, necessary and appropriate to the accomplishment of the foregoing purpose. Form 205 5 Organizer The name and address of the organizer: DONALD R SNELL A'nme 8150 North Central Expressway, Suite 180 Dallas TX 75206 Si veer or A failing Address 01.1 Stale Zip Code Effectiveness of Filing (Select either A,H,or C.) A. Z This document becomes effective when the document is filed by (fie secretary of state. B, ❑This document becomes effective at a later date, which is not more than ninety (90) days from the date of signing. The delayed effective date is: C. ❑This document takes effect upon the occurrence of the future event or fact, other than the passage of time. The 90a'day after the date ol'signing is: The l'ollowing event or fact will cause the document to take effect in the manner described below: Execution The undersigned affirms that the person designated as registered agent has consented to the appointment. The undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument and certifies under penalty of perjury that the undersigned is authorized to execute the filing instrument, Date: August 17, 2015 (� Signature of organizer DONALD 14, SNELL Printed or typed name of organizer Form 205 6 COMPANY AGREEMENT OF MARINE CREEK ALL STORAGE, LLC A Texas Limited Liability Company This COMPANY AGREEMENT OF MARINE CREEK ALL STORAGE, LLC (this "Agreement"), dated to be effective as of August 17, 2015 ("Effective Date"), is adopted, executed, and agreed to, for good and valuable consideration, by the Members (as defined in Section 2.01). Article 1 Organization 1.01. Formation. MARINE CREEK ALL STORAGE, LLC (the "Companv") has been organized as a Texas limited liability company by the filing of a Certificate of Formation with the Texas Secretary of State (the "Certificate") on August 18, 2015 under and pursuant to the Business Organizations Code (as amended from time to time, the "BOC"). 1.02. Name. The name of the Company is "MARINE CREEK ALL STORAGE, LLC" and all Company business must be conducted in that name or such other names that may be selected by the Manager(as defined in Section 5.01) and that comply with applicable law. 1.03. Registered Office; Registered Agent; Offices. The registered office and registered agent of the Company in the State of Texas shall be as specified in the Certificate or as designated by the Manager in the manner provided by applicable law. The offices of the Company shall be at such places as the Manager may designate, which need not be in the State of Texas. 1.04. Purposes. The purposes of the Company are those set forth in the Certificate. 1.05. Foreign Qualification. Prior to the Company's conducting business in any jurisdiction other than Texas, the Manager shall cause the Company to comply with all requirements necessary to qualify the Company as a foreign limited liability company in that jurisdiction. 1.06. Term. The Company commenced on the date of filing the Certificate with the Secretary of State of Texas and shall continue in existence until its business and affairs are wound up and the Company is terminated as provided in Article 8 of this Agreement. 1.07. No State-Law Partnership. The Members intend that the Company not be a partnership (including a limited partnership) or joint venture, and that no Member or Manager be a partner or joint venturer of any other Member or Manager, for any purposes other than applicable tax laws, and this Agreement may not be construed to suggest otherwise. Article 2 Membership; Dispositions of Interests 2.01. Members; Sharing Ratios. The members of the Company (`Members") are the persons or entities (`Persons") executing this Agreement as of the date hereof as Members and each Person that is hereafter admitted to the Company as a Member in accordance with this Agreement. If a Member shall have made a Disposition of all or any portion of its Membership Interest but shall have retained any rights therein, then solely with respect to the Membership Interest(or portion thereof) so disposed, all references Page 1 C\ProgramData\activePDFIDC_ENT\Tmp\e5525e\SandBosGuestc8564dOt-iia8-48th-8997-1948a2;7507b.doe to "Member" that appear in Article 4 and Section 8.02(b) shall be deemed to refer to the assignee of such Membership Interest but such assignee shall have no other rights or privileges hereunder. The Sharing Ratio and Commitment(herein so called)of each initial Member is set forth on Exhibit A. 2.02. Dispositions of Membership Interests. A Member may not make a sale, assignment, transfer, conveyance, gift, exchange, or other disposition (voluntarily, involuntarily, or by operation of law) ("Disposition") of all or any portion of its rights or interest in the Company ("Membership Interest"`), other than a Disposition resulting from the death of such Member, except with the consent of the Manager. Any attempted Disposition of all or any portion of a Membership Interest, other than in strict accordance with this Section 2.02, shall be null and void ab initio. A Person to whom a Membership Interest is Disposed (including as a result of the death of a Member) may be admitted to the Company as a member only with the consent of the Manager. In connection with any Disposition of a Membership Interest or any portion thereof, and any admission of an assignee as a Member, the Member making such Disposition and the assignee shall furnish the Manager with such documents regarding the Disposition as the Manager may request (in form and substance satisfactory to the Manager), including a copy of the Disposition instrument, a ratification by the assignee of this Agreement (if the assignee is to be admitted as a Member). 2.03. Encumbrances of Membership Interests. A Member may not pledge, mortgage, subject to a security interest or lien, or otherwise encumber(voluntarily, involuntarily, or by operation of law) all or any portion of its Membership Interest without the consent of the Manager. 2.04. Creation of Additional Membership Interests. Additional Membership Interests may be created and issued to existing Members or to other Persons, and such other Persons may be admitted to the Company as Members, at the direction of the Manager, on such terms and conditions, and with such Sharing Ratios and Commitments, as the Manager may determine at the time of admission. The Manager may reflect the admission of any new Members or the creation of any new class or group of Member in an amendment to this Agreement that need be executed only by the Manager. 2.05. Withdrawal. A Member does not have the right or power to withdraw from the Company. 2.06. Information. In addition to the other rights specifically set forth in this Agreement, each Member and each assignee is entitled to all information to which that Member or assignee is entitled to have access pursuant to the BOC under the circumstances and subject to the conditions therein stated. 2.07. Liability to Third Parties. No Member or Manager shall be liable for the debts, obligations, or liabilities of the Company, including under a judgment decree or order of a court. 2.08. Expulsion. A Member may not be expelled from the Company. 2.09. Spouses of Members. Spouses of the Members do not become Members as a result of such marital relationship. Article 3 Capital Contributions 3.0I. Initial Contributions. Contemporaneously with the execution by such Member of this Agreement, each Member shall make the contributions to the capital of the Company ("Capital Contributions")described for that Member in Exhibit A. Page 2 C.\ProgramData\acti vePDRDC_ENT\Tmp\c 5 525e\SandBOXGueStc8564dOf-33a8-48ff-8997-3948a23 75076.doc 3.02. Subsequent Contributions. Without creating any rights in favor of any third party, each Member shall contribute to the Company, in cash, on or before the date specified as hereinafter described, that Member's Sharing Ratio of all monies that in the judgment of the Manager are necessary to enable the Company to cause the assets of the Company to be properly operated and maintained and to discharge its costs, expenses, obligations, and liabilities; provided, however, that a Member is not obligated to contribute a total amount that, when added to all Capital Contributions that Member previously has made pursuant to Section 3.01 or this Section 3.02, exceeds that Member's Commitment described for that Member in Exhibit A. 3.03. Failure to Contribute. (a) If a Member does not contribute, within ten (10) days of the date designated by the Manager, all or any portion of a Capital Contribution that Member is required to make as provided in this Agreement, the Manager may cause the Company to exercise, on notice to that Member (the "Delinquent Member"), one or more of the following remedies: (i) taking such action (including court proceedings), at the cost and expense of the Delinquent Member, as the Manager may deem appropriate to obtain payment by the Delinquent Member of the portion of the Delinquent Member's Capital Contribution that is in default, together with interest thereon from the date that the Capital Contribution was due until the date that it is made, at a rate per annum equal to the lesser of(A) the maximum rate permitted by applicable law and (B) eight percent (8%) per annum; (ii) exercising the rights of a secured party under the Uniform Commercial Code of the State of Texas, as more fully set forth in Section 3.03(b); or (iii) exercising any other rights and remedies available at law or in equity. (b) Each Member grants to the Company, as security for the payment of all Capital Contributions that Member has agreed to make, a security interest in and a general lien on its Membership Interest and the proceeds thereof, all under the Uniform Commercial Code of the State of Texas. On any default in the payment of a Capital Contribution, the Company is entitled to all the rights and remedies of a secured party under the Uniform Commercial Code of the State of Texas with respect to the security interest granted in this Section 3.03(b). Each Member shall execute and deliver to the Company all financing statements and other instruments that the Manager may request to effectuate and carry out the preceding provisions of this Section 3.03(b). At the option of the Manager, this Agreement or a photographic, or other copy hereof may serve as a financing statement. 3.04. Return of Contributions. A Member is not entitled to the return of any part of its Capital Contributions or to be paid interest in respect of either its capital account or its Capital Contributions. An unrepaid Capital Contribution is not a liability of the Company or of any Member. A Member is not required to contribute or to lend any cash or property to the Company to enable the Company to return any Member's Capital Contributions. 3.05. Advances by Members. If the Company does not have sufficient cash to pay its obligations, any Member(s), with the consent of the Manager, may advance all or part of the needed funds to or on behalf of the Company, at such interest rate and on such other terms as such Member and the Manager may agree. An advance described in this Section 3.05 constitutes a loan from the Member to the Company and is not a Capital Contribution. Page 3 C.\ProgramData\activePDF\DC_ENT\Tmp\c5525e1Sand BOsGuestc8564d0f-33a8-48ff-8997-3948a237507b doc Article 4 Distributions and Allocations 4.01. Distributions. At such time as determined by the Manager, but in no event no less often than annually on or before the sixtieth (60"i) day after the end of the calendar year, Net Cash Flow (as defined in this Section 4.01) for each fiscal year (or such shorter period for which the distribution is made) shall be distributed to the Members in proportion to their Sharing Ratios. The term "Net Cash Flow" shall mean all cash funds derived by the Company (including interest received on reserves, borrowings, and capital transactions), without reduction for any non-cash charges, but less cash funds used to pay current operating expenses, debt payments, capital improvements, replacements, and establish reasonable reserves for future expenses and costs as determined by the Manager. 4.02. Allocations. Except as may be required by Code Sec. 704(c)and Treasury Regulation Sec. 1.704-3, all items of income, gain, loss, deduction, and credit of the Company shall be allocated to the Members in their Sharing Ratios. Article 5 Management 5.01. Management by Manager. (a) Subject to the provisions of Section 5.02, the powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, a manager of the Company ("Manager"). No Member in its capacity as a Member has the right, power, or authority to act for or on behalf of the Company, to do any act that would be binding on the Company, or to incur any expenditures on behalf of the Company. (b) In managing the business and affairs of the Company and exercising its powers, the Manager may act (i) through resolutions adopted at meetings and in written consents pursuant to Sections 5.04 and 5.08; or (ii) through committees to which authorities and duties have been delegated pursuant to Section 5.05. No Manager has the right, power, or authority to act for or on behalf of the Company, to do any act that would be binding on the Company, or to incur any expenditures on behalf of the Company, except in accordance with the immediately preceding sentence. Decisions or actions taken by the Manager in accordance with this Agreement (including this Section 5.01 and Section 5.02) shall constitute decisions or actions by the Company and shall be binding on each Manager, Member, Officer (as defined in Section 5.09), and employee of the Company. By execution of this Agreement, the initial sole Member of the Company hereby consents to the purchase of that certain property located at the southeast corner of Marine Creek Parkway and Longhorn Drive in Fort Worth, Tarrant County, Texas ("Property") pursuant to that certain Contract of Sale (as amended, the "Contract") dated effective May 13, 2015 by and between Marine Creek Parkway Partners, LLC as Seller and Regional Management Co., Inc. ("Regional') as Purchaser, as assigned to the Company pursuant to that certain Assignment of Contract of Sale dated as of August 19, 2015; and that the Manager, for and on behalf of the Company, is hereby authorized to execute any and all documents and take any and all actions as are required to consummate the assignment of the Contract from Regional to the Company and the acquisition by the Company of the Property pursuant to the terms of the Contract. 5.02. Decisions Requiring Member Consent. Notwithstanding any power or authority granted the Manager under the BOC, the Certificate or this Agreement, Manager may not make any decision or take any action for which the consent of all Members is expressly required by the Certificate or this Agreement, without first such obtaining such consent. Each Member may, with respect to any vote, Page 4 C\ProgramData\activePDF\DC_ENT\Tmp\c5525e\SandBozGuestc8564dOf-33 a8-48 f1'-8997-3948a237507b.doc consent, or approval that it is entitled to grant pursuant to this Agreement, grant or withhold such vote, consent, or approval in its sole discretion. 5.03. Selection of Manager. The number of Manager of the Company shall be the number set forth in the Certificate as the number of initial Manager, unless such number is changed by all Members. The initial Manager of the Company shall be the person or entity named in the Certificate as the initial Manager. Manager need not be Members or residents of the State of Texas. Each Manager (whether an initial or a successor Manager) shall cease to be a Manager upon the earliest to occur of any of the following events: (a) such Manager shall engage in gross negligence or willful misconduct in the performance of its duties as a Manager and, as a result thereof, shall be removed by the Members by written notice to the Manager; (b) such Manager shall resign as a Manager, by giving notice of such resignation to the Members; or (c) such Manager shall die, dissolve (unless its business is continued without the commencement of liquidation or winding up), or become bankrupt (as defined in the BOC). Any vacancy in any Manager position may be filled by the unanimous written consent of the Members. 5.04. Meetings of Managers. Regular meetings of the Managers (if more than one) may be held on such dates and at such times as shall be determined by the Managers, with notice of the establishment of such regular meeting schedule being given to each Manager that was not present at the meeting at which it was adopted. Special meetings of the Managers may be called by any Manager by notice thereof (specifying the place and time of such meeting) that is delivered to each other Manager at least twenty- four (24) hours prior to such meeting. Neither the business to be transacted at, nor the purpose of, such special meeting need be specified in the notice (or waiver of notice) thereof. Unless otherwise expressly provided in this Agreement, at any meeting of the Managers, a majority (by number) of the Managers shall constitute a quorum for the transaction of business, and an act of a majority (by number) of the Managers who are present at such a meeting at which a quorum is present shall be the act of the Managers. The provisions of this Section 5.04 shall be inapplicable at any time that there is only one Manager. 5.05. Committees of Managers; Delegation of Authority to Individual Managers. The Managers(if more than one) may designate one or more committees, each of which shall be comprised of one or more of the Managers, and may designate one or more of the Managers as alternate members of any committee. Except for matters that cannot be delegated to such a committee pursuant to the BOC (but notwithstanding the last sentence of the BOC), any such committee, to the extent provided in the resolution establishing it, shall have and may exercise all of the authority that may be exercised by the Managers. Regular and special meetings of such committee shall be held in the manner designated by the Managers or, if not so designated, by such committee. The Managers may dissolve any committee at any time. In addition, the Managers may delegate to one or more Managers such authority and duties, and assign to them such titles, as the Managers may deem advisable. Any such delegation may be revoked at any time by the Managers. 5.06. Compensation. The Managers shall receive such compensation, if any, for their services as may be designated by the unanimous written consent of the Members. In addition, the Managers shall be entitled to be reimbursed for out-of-pocket costs and expenses incurred in the course of their service hereunder. 5.07. Meetings of Members. An annual meeting of the Members for the transaction of such business as may properly come before the meeting shall be held on such date and at such time as the Managers shall specify in the notice of the meeting, which shall be delivered to each Member at least twenty (20) days prior to such meeting. Special meetings of the Members may be called by the Managers or by a Member having at least ten percent of the Sharing Ratios of all Members. Any such meeting shall be held on such date and at such time as the Person calling such meeting shall specify in the notice of the Page 5 C\ProgramData\activePDF\DC_ENT\Tmp\c5525e\SandRoxGuesic8564dOG33a8-48tf-8997-3948a237507b doc meeting, which shall be delivered to each Member at least ten days prior to such meeting. Only business within the purpose or purposes described in the notice (or waiver thereof) for such meeting may be conducted at such meeting. Unless otherwise expressly provided in this Agreement, at any meeting of the Members, Members holding among them at least a majority of all Sharing Ratios (a "Majority Interest"), represented either in person or by proxy, shall constitute a quorum for the transaction of business, and an act of a Majority Interest shall be the act of the Members. 5.08. Provisions Applicable to All Meetings. In connection with any meeting of the Managers, Members, or any committee of the Managers, the following provisions shall apply: (a) Place of Meeting. Any such meeting shall be held at the principal place of business of the Company, unless the notice of such meeting (or resolution of the Managers or committee, as applicable) specifies a different place, which need not be in the State of Texas. (b) Waiver of Notice Through Attendance. Attendance of a Person at such meeting (including pursuant to Section 5.08(e)) shall constitute a waiver of notice of such meeting, except where such Person attends the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened. (c) Proxies. A Person may vote at such meeting by a written proxy executed by that Person and delivered to another Manager, Member, or member of the committee, as applicable. A proxy shall be revocable unless it is stated to be irrevocable. (d) Action by Written Consent. Any action required or permitted to be taken at such a meeting may be taken without a meeting, without prior notice, and without a vote if a unanimous consent or consents in writing, is signed by all the Managers, Members, or members of the committee, as applicable. (e) Meetings by Telephone. Managers, Members, or members of the committee, as applicable, may participate in and hold such meeting by means of conference telephone, videoconference, or similar communications equipment by means of which all Persons participating in the meeting can hear each other. 5.09. Officers. The Managers may designate one or more Persons to be officers of the Company ("Officers"), and any Officers so designated shall have such title, authorities, duties, and salaries as the Managers may delegate to them. Any Officer may be removed as such, either with or without cause, by the Managers. 5.10. Limitations on Duties and Liabilities of Managers. A Manager shall be liable to the Company and the other Members for acts or omissions in the management of the Company only in the case of gross negligence, willful misconduct or breach of this Agreement by such Manager; but a Manager shall not be liable to the Company or any other Member for any other acts or omissions, including the negligence, strict liability, or other fault or responsibility (short of gross negligence, willful misconduct, or breach of this Agreement) by such Manager. Except for such duties as may be expressly set forth in this Agreement, a Manager shall not be subject to any duties (including fiduciary duties) in the management of the Company. 5.11. Conflicts of Interest. Subject to the other express provisions of this Agreement, each Member, Manager, Officer, or affiliate thereof may engage in and possess interests in other business ventures of any and every type and description, independently or with others, including ones in competition with the Company, with no obligation to offer to the Company or any other Member, Page 6 C\ProgramData\activePDF\DC_ENT\Tmp1c5525e\SandBozGuesic8564dOG33a8-d8t£8997-3948a2 375076 doc Manager, or Officer the right to participate therein. The Company may transact business with any Member, Manager, Officer, or Affiliate thereof, provided the terms of those transactions are no less favorable than those the Company could obtain from unrelated third parties. 5.12. Indemnification. The Company shall indemnify, defend, protect, and hold harmless each Manager from and against all actions, suits or proceedings (collectively, "Proceedings"), and all other claims, demands, losses, damages, liabilities,judgments, awards, penalties, fines, settlements, costs and expenses (including court costs and reasonable attorneys' fees), arising out of the management of the Company or such Manager's service or status as a Manager. THIS INDEMNITY SHALL APPLY TO MATTERS THAT ARISE OUT OF THE NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OR RESPONSIBILITY BY SUCH MANAGER; PROVIDED, HOWEVER, THAT THIS INDEMNITY SHALL NOT APPLY TO MATTERS ARISING OUT OF THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF THIS AGREEMENT BY SUCH MANAGER. The Company, by adoption of a resolution of the Manager, may indemnify an Officer, employee or agent of the Company to the same extent and subject to the same conditions under which it may indemnify Manager under the proceeding sentence. The Company may purchase and maintain insurance to protect itself and any Manager, Officer, employee, or agent of the Company. Article 6 Taxes 6.01. Tax Returns. The Company shall prepare and timely file all federal, state, and local tax returns required to be filed by the Company. Each Member shall furnish to the Company all pertinent information in its possession relating to the Company's operations that is necessary to en- able the Company's tax returns to be timely prepared and filed. The Company shall deliver a copy of each such return to the Members on or before ten days prior to the due date of any such return, together with such additional information as may be required by the Members in order for the Members to file their individual returns reflecting the Company's operations. The Company shall bear the costs of the preparation and filing of its returns. 6.02. Tax Elections. The Company shall make the following elections on the appropriate tax returns: (a) to adopt the calendar year as the Company's fiscal year; (b) to adopt the cash method of accounting and to keep the Company's books and records on the income-tax method; (c) if a distribution of the Company's property as described in Code Section 734 occurs or upon a transfer of Membership Interests as described in Code Section 743 occurs, on request by notice from any Member, to elect, pursuant to Code Section 754, to adjust the basis of Company's properties; (d) to elect to deduct the maximum amount of organizational expenses in the fiscal year the company begins business and to amortize the balance of the organizational expenses of the Company ratably over a period of 180 months as permitted by Code Section 709(b); and (e) any other election the Manager may deem appropriate and in the best interests of the Members. Page 7 C:\ProgramData\activePDF\DC_ENT\Tmp\c5 525e\SandBoxGuestc8564dOf-33 a8-48 fF-8997-3948a237507b.doc Neither the Company nor any Manager or Member may make an election for the Company to be excluded from the application of the provisions of subchapter K of chapter I of subtitle A of the Code or any similar provisions of applicable state law and no provision of this Agreement(including Section 1.07) shall be construed to sanction or approve such an election. 6.03. Tax Matters Member. The initial Manager hereby designates the sole initial Member to be the "tax matters partner" of the Company pursuant to Code Section 6231(a)(7) (the "Tax Matters Member"). The Tax Matters Member shall take such action as may be necessary to cause to the extent possible each other Member to become a "notice partner" within the meaning of Code Section 6223. The Tax Matters Member shall inform each other Member of all significant matters that may come to its attention in its capacity as Tax Matters Member by giving notice thereof on or before the fifth business day after becoming aware thereof and, within that time, shall forward to each other Member copies of all significant written communications it may receive in that capacity. Any cost or expense incurred by the Tax Matters Member in connection with its duties, including the preparation for or pursuance of administrative or judicial proceedings, shall be paid by the Company. Article 7 Books, Records, and Bank Accounts 7.01. Books and Records. The Manager shall keep or cause to be kept at the principal office of the Company complete and accurate books and records of the Company, supporting documentation of the transactions with respect to the conduct of the Company's business, and minutes of the proceedings of its Managers, Members, and each committee of the Managers (if more than one Manager or Member, as applicable). The books and records shall be maintained with respect to accounting matters in accordance with sound accounting practices, and all books and records shall be available at the Company's principal office for examination by any Member or the Member's duly authorized representative at any and all reasonable times during normal business hours. 7.02. Reports. Within seventy-five (75) days after the end of each taxable year, the Manager shall cause to be sent to each Member at the end of the taxable year a complete accounting of the financial affairs of the Company for the taxable year then ended. 7.03. Accounts. The Manager shall establish one or more separate bank and investment accounts and arrangements for the Company, which shall be maintained in the Company's name with financial institutions and firms that the Manager determine. The Manager may not commingle the Company's funds with the funds of any Manager or Member. Article 8 Winding Up and Termination 8.01. Events Requiring Winding Up. (a) Subject to Section 8.01(b), the Company shall be wound up on the first to occur of the following events: (i) the expiration of the period, if any, fixed for the duration of the Company in the Certificate; (ii) the consent of all of the Members; Page 8 C�ProgramData�acti%ePDRDC_ENT\Tmp\c5525e\SandBoxGuestc8564dOf-33x8-48ff-8997-3948a'_37507b doc (iii) entry of a decree of judicial dissolution of the Company under Article 6.02 of the BOC; and (iv) the occurrence of an event described in Section 11.056 of the BOC and the failure of the legal representative or the successor of the Member to take the actions required by Section 11.056 of the BOC within the time specified therein. No other event (including an event described in the BOC) will cause the Company to be wound up. (b) If an event described in subparagraph (i) of Section 8.01(a) shall occur and there shall be at least one (1) other Member remaining, the Company shall not be wound up, and the business of the Company shall be continued, if all of the Members so agree within thirty (30) days of the occurrence of such event. If such election is made following the occurrence of an event described in subparagraph (i) of Section 8.01(a), the Manager shall promptly cancel or revoke the event requiring the winding up in the manner specified in Chapter 101 of BOC. 8.02. Winding Up and Termination. (a) On the occurrence of an event described in Section 8.01(a), unless an election is made to continue the business of the Company pursuant to Section 8.01(b), the Manager shall act as liquidator or may appoint one or more Members as liquidator. The liquidator shall proceed diligently to wind up the affairs of the Company as provided in the BOC. Until final distribution, the liquidator shall continue to operate the Company properties with all of the power and authority of the Manager. The costs of winding up shall be borne as a Company expense. (b) Any assets of the Company remaining at the conclusion of the winding-up process shall be distributed among the Members in accordance with their Sharing Ratios. All distributions in kind to the Members shall be made subject to the liability of each distributee for costs, expenses, and liabilities theretofore incurred or for which the Company has committed prior to the date of termination. The distribution of cash and/or property to a Member in accordance with the provisions of this Section 8.02(6) constitutes a complete return to the Member of its Capital Contributions and a complete distribution to the Member of its Membership Interest and all the Company's property and constitutes a compromise to which all Members have consented within the meaning of Article 5.02(D)of the BOC. (c) On completion of such final distribution, the Manager shall file Certificate of Termination with the Secretary of State of Texas, cancel any other filings made pursuant to Section 1.05, and take such other actions as may be necessary to terminate the existence of the Company. 8.03. No Restoration of Deficit Capital Accounts. No Member shall be required to pay to the Company, to any other Member or to any third party any deficit balance that may exist from time to time in any capital or similar account maintained for such Member for any purpose. Article 9 General Provisions 9.01. Offset. Whenever the Company is to pay any sum to any Member, any amounts that Member owes the Company may be deducted from that sum before payment. 9.02. Notices. All notices, requests, or consents under this Agreement shall be (a) in writing, (b)delivered to the recipient in person, by courier or mail or by facsimile, or similar transmission, (c) if to Page 9 C\ProgramData�acti,ePDRDC_ENT\Tmp\c5525e\Sand BozGueste8564dOC-)3a8-48fT-8997-3943a2i75076 doc a Member, delivered to such Member at the applicable address on Exhibit A or such other address as that Member may specify by notice to the other Members, (d) if to the Manager or the Company, delivered to the Manager at the following address: 82 Armstrong Drive, Mustang, Oklahoma 73064, and (e) effective only upon actual receipt by such person or entity. Whenever any notice is required to be given by applicable law, the Certificate, or this Agreement, a written waiver thereof, signed by the person or entity entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. 9.03. Entire Agreement; Supersedure. This Agreement constitutes the entire agreement of the Members relating to the Company and supersede all prior contracts or agreements with respect to the Company, whether oral or written. 9.04. Effect of Waiver or Consent. A waiver or consent, express or implied, to or of any breach or default by any Person in the performance by that Person of its obligations with respect to the Company is not a consent or waiver to or of any other breach or default in the performance by that Person of the same or any other obligations of that Person with respect to the Company. 9.05. Amendments of Certificate and Agreement. The Certificate and the Agreement may be amended or restated only with the approval of the Manager and all of the Members; provided, however, that amendments of the type described in Section 2.04 may be adopted as therein provided. 9.06. Binding Effect. Subject to the restrictions on Dispositions set forth in this Agreement, this Agreement is binding on and inure to the benefit of the Members and their respective heirs, legal representatives, successors, and assigns. 9.07. Governing Law; Severability. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS (EXCLUDING ITS CONFLICT-OF-LAWS RULES). If any provision of this Agreement or the application thereof to any Person or circumstance is held invalid or unenforceable to any extent, the remainder of this Agreement and the application of that provision to Other Persons or circumstances is not affected thereby and that provision shall be enforced to the greatest extent permitted by applicable law. 9.08. Construction. Unless the context requires otherwise: (a) the gender(or lack of gender) of all words used in this Agreement includes the masculine, feminine, and neuter; (b) the word "including" means "including, without limitation"; (c) references to Certificate of Formation and Sections refer to Articles and Sections of this Agreement; and (d) references to Exhibits are to the Exhibits attached to this Agreement, each of which is made a part hereof for al I purposes. 9.09. Further Assurances. In connection with this Agreement and the transactions contemplated hereby, each Member shall execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and per- form the provisions of this Agreement and those transactions. 9.10. Counterparts. This Agreement may be executed in any number of counterparts, all of which shall constitute the same instrument. [Remainder of Page Intentionally Left Blank; Signature Page Follows] Page 10 C\ProgramData\activePDF\DC_ENilTmp\c5525e\Sand6oxGuestc8564dOf-33a8-48fi 8997-3948a237507b doc IN WITNESS WHEREOF, the Sole Member has executed this Agreement as of the Effective Date first set forth above. SOLE MEMBER: JAY SCHUMINSKY an individual By: Ja c umins Page 1 1 C\ProgramData\activePDF\DC_ENT\Tmp\c5525e\SandBoxGvestc8564dOG33a8-48ff-8997-3948a237507b.doc EXHIBIT A Initial Member Jay Schuminksy 82 Armstrong Drive Mustang, Oklahoma 76064 Initial Capital Contribution: $1,000.00 Sharing Ratio: 100% Page 12 C\ProgramData\activePDF\DC_ENTTmp\c5525e\SandBoxGuestc8564dOf-33a8-48f-8997-3948a237507b doc