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COMMUNITY FACILITIES AGREEMENT
THE STATE OF TEXAS § City Secretary
COUNTY OF TARRANT § Contract No. �
WHEREAS, Fossil Park Joint Venture, hereinafter called "Developer",
desires to make certain improvements to Fossil Park Addition, Phase III, an
addition to the City of Fort Worth, Texas; and
WHEREAS, the said Developer has requested the City of Fort Worth, a
municipal corporation of Tarrant and Denton Counties, Texas, hereinafter called
"City", to do certain work in connection with said improvements;
NOW, THEREFORE, KNOW ALL BY THESE PRESENTS:
That said Developer, acting herein by and through James Melino, its duly
authorized President and the City, acting herein by and through Mike Groomer,
its duly authorized Assistant City Manager, for and in consideration of the
covenants and conditions contained herein, do hereby agree as follows:
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SECTION ONE
COMMUNITY FACILITIES AGREEMENT
to install
WATER AND SEWER SERVICES
for
FOSSIL PARK PHASE III
A. The City agrees to permit the Developer to let a contract for, in accordance
with its accepted practices, ordinances, regulations, and the provisions of
the City Charter, and subject to the requirements of the City's Charter, and
subject to the requirements of the City's Policies and Regulations for
Installation of Community Facilities, all as current at the time of installation:
WATER FACILITIES serve the lots as shown on the attached Exhibit A ,
and SANITARY SEWER FACILITIES to serve the lots as shown on the
attached Exhibit A-1 all in accordance with plans and specifications to
be prepared by private engineers employed by the Developer and
approved by the Water Department.
B. The City agrees to allow the Developer to install, at his expense, at the
time all other water mains in this addition are installed, a service line for
each lot as shown on the attached Exhibit A . The estimated cost of
these service lines is $ 26,775. The City agrees to record the location of
each said service line in respect to the corner of the lot served, and to
retain said records in its possession.
C. The construction cost of the water facilities herein concerned, exclusive of
service lines and engineering is estimated to be Forty-Four Thousand,
Six Hundred Eighty-Five Dollars $4( 4,685) .
D. The City agrees to allow the Developer to install, at his expense, at the
time all other sanitary sewer mains in this addition are installed, a service
line for each lot as shown on the attached Exhibit A-1 . The estimated
cost of these service lines is $ 20,475. The City agrees to record the
location of each said service line in respect to the corner of the lot served,
and to retain said records in its possession.
E. The construction cost of the sanitary sewer facilities to be installed
hereunder, exclusive of service lines and engineering, is estimated to be
Eighty-Five Thousand, and Twenty-Five Dollars ($85,025).
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PROJECT NAME: FOSSIL PARK PHASE III
F. Prior to allowance of the construction contract by Developer, the Developer
agrees to provide acceptable financial guarantee to the city for 100 percent
of the construction of the construction costs along with payment of any
Ordinance costs and fees that are applicable. Prior to the award of the
construction contract by the City or the commencing of any work by the
City or its contractors, the Developer agrees to pay to the City..
(1) (a) One Hundred percent (100%) of the Developer's cost of all water
and sanitary sewer facilities within the development, exclusive of
engineering and service costs, sized to provide water and sanitary sewer
service within the development.
(b)One hundred percent (100%) of the Developer's cost of all
approach water and sanitary sewer facilities outside the limits of the
development sized to provide water and sanitary sewer service to the
development.
(c)One hundred percent (100%) of the Developer's cost of any
approach water main facility or water facility within the development that is
8-inches in size for non-industrial development and 12-inches in size for
industrial development.
(d)One hundred percent (100%) of the Developer's cost of any
approach sanitary sewer main facility or sanitary sewer facility within the
development that is 8-inches in size.
(2) An additional ten percent (10%) of the total of the Developers cost
of these water and sanitary sewer facilities, exclusive of cost of service
lines, is required for design engineering if such engineering is performed
by the City at the Developer's request.
(3) One hundred percent (100%) of the Developer's cost of all service
lines, estimated under 1-B and 1-D above, in accordance with the
provisions of the current Fort Worth City Code.
(4) A construction Inspection Fee equal to two (2%) of the Developer's
actual cost share of the construction cost (including all services) of the
water and/or sanitary sewer facilities.
G. The distribution of estimated construction cost between the City and the
Developer, as per paragraph 1-F above, for all water and sanitary sewer
facilities to be constructed hereunder is estimated as follows-
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PROJECT NAME: FOSSIL PARK PHASE III
(1) WATER FACILITIES :
Estimated
Developer Estimated Total
Cost City Cost Cost
(a) Mains, Within
Development $ 44,685 $ -0- $ 44,685
Approach $ -0- $ -0- $ -0-
(b) Easements* $ -0- $ -0- $ -0-
(c) Services
63 - single 1") $ 26,775 $ -0- $ 26,775
(d)Park Participation $ -0- $ -0- $ -0-
Sub-Totals, Water $71,460 $ -0- $71,460
(2) SANITARY SEWER FACILITIES:
(a) Development $ 60,115 $24,910 $ 85,025
Approach $ -0- $ -0- $ -0-
(b) Easements * $ -0- $ -0- $ -0-
(c) Services ( 63 -4") $ 20,475 $ -0- $ 20,475
(d)Park Participation $ -0- $ -0- $ -0-
Sub-Totals, Sewer $ 80,590 $24,910 $ 105,500
(3) TOTAL
CONSTRUCTION COST: $ 152,050 $24,910 $ 176,960
(4) CONSTRUCTION
INSPECTION FEE : $ 3,041 $ 498 $ 3,539
*to be dedicated by the developer.
" see Page 1-4 for City Cost -
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** CITY PARTICIPATION BREAK-DOWN FOR:
PROJECT NAME: FOSSIL PARK PHASE III
OVERSIZED SEWER MAIN
(Developer pays up to 8" sewer line; City pays the difference between 27"/8"
sewer line.
27"/8" Sewer Line ($65-18) averaged costs
530 L.F. x $47 = $ 24,910
TOTAL CITY PARTICIPATION FOR WATER DEPARTMENT
=$24,910
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ANN. ,ak
PROJECT NAME: FOSSIL PARK PHASE III
H. The above charges do not include any front foot charges for connection to
existing or proposed water and/or sanitary sewer mains constructed or to
be constructed under the provisions of the "APPROACH MAIN OPTION"
as described in Section III of the Policy for the "INSTALLATION OF
COMMUNITY FACILITIES" adopted in September, 1992. These
additional charges are as follows:
1. Applicable to this Contract in the amount of $ N/A.
by Contract No. N/A dated N/A
Applicable CFA Name N/A
Date: N/A Number N/A
I. When water facilities are installed by contract, installation of water
services will be included as part of the contract. Installation of meter
boxes on those services may be done by the City, after completion of
construction of all relative curb and gutter work on the water facilities
project site, at a cost of $70/$135 per contract-installed charge to be due
and payable prior to issuance of a Work Order on the water facilities
installation contract. The above charges do not apply if the Developer
elects to include meter box installation as part of the contract. However,
meter boxes must conform City standards.
J. Within a reasonable time after completion of the above referenced
facilities to be constructed by contract awarded by the Developer,
provided all conditions for City participation have been met, the City
agrees to pay the Developer the "Estimated City Cost" set out in 1-G
above-, provided, however, that said payment shall be calculated using the
actual construction costs and actual service costs under the provisions of
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PROJECT NAME: FOSSIL PARK PHASE III
the current Fort Worth City Code, (said payment to be calculated as in 1-
G above), based on actual quantities as reflected in the final estimate paid
to the Contractor by the Developer and on the actual records of cost kept
by the City as a part of its customary procedures. In the event the
difference in the deposit and the actual costs exceeds $25, Developer
agrees to pay to the City and underpayment which said adjustment might
indicate as being due, and the City agrees to pay to Developer any
overpayment.
K. Work hereunder shall be completed within two (2) years from date hereof,
and it is understood that any obligation on the part of the City to make any
refunds with respect to water and/or sanitary sewer facilities shall cease
upon the expiration of two (2) years from date hereof, except for refunds
due from "front foot charges" on water and sanitary sewer mains, which
refunds may continue to be made for a period of ten (10) years
commencing on the date that approach mains are accepted by the
Director. If less than 70% of the eligible collections due to the developer
has been collected, the Developer may request in writing an extension of
up to an additional 10 years for collection of front charges. In the event
water and/or sanitary sewer facilities work is not completed within the (2)
year period, City may, at its election, complete such work at Developer's
expense.
L. It is further agreed and understood that any additional payment required
of Developer is to cover only such additional work and/or materials as
may be made necessary by conditions encountered during construction,
and shall not include any change in scope of the project.
RECOMMENDED:
Dale Fisseler
Director
Water V-.174
Date
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ATTACHMENT A
GENERAL REQUIREMENTS
A. It is agreed and understood by the parties hereto that the developer shall
employ a civil engineer, licensed to practice in the State of Texas, for the
design and preparation of plans and specifications for the construction of all
current improvements covered by this contract, subject to Paragraph B.
B. For any project estimated to cost less than $10,000 or for any project
designed to serve a single lot or tract, the developer may at his option request
the City to provide the design engineering, and if such request is granted, the
developer shall pay to the City an amount equal to 10 percent of the final
construction cost of such project for such engineering services.
C. In the event the developer employs his own engineer to prepare plans and
specifications for any or all current improvements, the plans and specifications
so prepared shall be subject to approval by the department having jurisdiction.
One (1 ) reproducible set of plans with 15 prints and 35 specifications for each
facility shall be furnished the department having jurisdiction. It is agreed and
understood that in the event of any disagreement on the plans and
specifications, the decision of the Transportation/Public Works Department
Director, and/or Water Department Director will be final.
D. It is further agreed and understood by the parties hereto that upon acceptance
by the City, title to all facilities and improvements mentioned hereinabove shall
be vested at all times in the City of Fort Worth, and developer hereby
relinquishes any right, title, or interest in and to said facilities or any part
hereof.
E. It is further agreed that the decision of the City to not collect funds for "future
improvements" required in previous CFA agreements does not constitute an
obligation on the part of the City to construct such "future improvements" at
its expense.
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F. Work hereunder shall be completed within two (2) years from date hereof, and
it is understood that any obligation on the part of the Cit err e r
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F. Work hereunder shall be completed within two (2) years from date hereof, and
it is understood that any obligation on the part of the City to make any refunds
with respect to water and/or sanitary sewer facilities or street, storm drain,
street light and street name sign shall cease upon the expiration of two (2)
years from date hereof, except for refunds due from "front foot charges" on
water and sanitary sewer mains, which refunds may continue to be made for a
period of ten (10) years commencing on the date that approach mains are
accepted by the Director. If less than 70% of the eligible collections due to
the developer has been collected, the Developer may request in writing an
extension of up to an additional 10 years for collection of front charges. If the
construction under the Community Facilities Contract shall have started within
the two-year period, the life of the Community Facilities Contract shall be
extended for an additional one-year period. Community Facility Contracts not
completed within the time periods stated above will require renewal of the
contract with all updated agreements being in compliance with the policies in
effect at the time of such renewal. Developers must recognize that City funds
may not be available to pay all or a portion of the normal City share for
renewal contracts. It must be understood by all parties to the Community
Facilities Contract that any of the facilities or requirements included in the
contract that are to be performed by the developer, but not performed by the
developer within the time periods stated above, may be completed by the City
at the developer's expense. The City of Fort Worth shall not be obligated to
make any refunds due to the developer on any facilities constructed under this
agreement until all provisions of the agreement are fulfilled.
G. PERFORMANCE AND PAYMENT GUARANTEES
1 . For Street, Storm Drain, Street Light and Street Name Sign
Improvements to be Constructed by the Developer or City on Behalf of
the Developer:
Performance and Payment bonds or cash deposits acceptable to the City
are required to be furnished by the developer for the installation of
streets, storm drains, street lights, and street name signs, on a non-
assessment basis, and must be furnished to the City prior to execution
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of this contract. The performance and payment bonds shall be in the
amount of one hundred percent (100%) of the developer's estimated
share of the cost of the streets, storm drains, street lights, and street
name signs. If the deposit is in the form of cash, the deposit shall be in
the amount of one hundred twenty five percent (125%) of the
developer's estimated cost of the streets, storm drains, street lights,
street name signs, and change orders (during the course of the project).
2. For Future Improvement:
Performance and payment bonds or cash deposits, acceptable to the
City are required to be furnished by the developer for one hundred
percent (100%) of the developer's estimated cost resulting from the
paving, drainage, lighting and name signage of border streets on an
assessment paving basis. (Reference Section VI, Item 3, Development
Procedures Manual.) Said performance and payment bonds or cash
deposits must be furnished to the City prior to execution of this
contract.
Where the City lets the contract, performance and payment bonds shall
be deposited, in the amount of one hundred percent (100%) of the
estimated cost of construction as stated in the construction contract, is
required prior to issuance of a work order by the City.
3. For Water and Sanitary Sewer Facilities:
Performance and payment bonds, or cash deposits, acceptable to the
City are required to be furnished by the developer for the installation of
water and sanitary sewer facilities.
a. Where the developer lets the construction contract for water and
sanitary sewer facilities, performance and payment bonds shall be
deposited, in the amount of one hundred percent (100%) of the
estimated cost of construction, cash deposited shall be in the
amount of one hundred twenty-five percent (125%), as stated in
the construction contract, is required to be furnished simultaneous
with execution of the construction contract.
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b. Where the City lets the contract, performance and payment bonds
shall be deposited, in the amount of one hundred percent 0 00%)
of the estimated cost of construction as stated in the construction
contract, is required prior to issuance of a work order by the City.
4. Types of Guarantees:
a. Performance and Payment Bonds: Are required for the
construction of streets, storm drains, street lights, and street
name signs, the following terms and conditions shall apply:
(1) The bonds will be standard performance and payment bonds
provided by a licensed surety company on forms furnished
by that surety company.
(2) The bonds will be subject to the review and approval by the
City Attorney.
(3) The performance bond shall be payable to the City and shall
guarantee performance of the street, storm drain, street
light, and street name sign construction contemplated under
this contract.
(4) The Payment Bond shall guarantee payment for all labor,
materials and equipment furnished in connection with the
street, storm drain, street light, and street name sign
construction contemplated under this contract.
(5) In order for a surety company to be acceptable, the name of
the surety shall be included on the current U.S. Treasury list
of acceptable sureties, and the amount of bond written by
any one acceptable company shall not exceed the amount
shown on the Treasury list for that company.
b. Cash Deposits: A cash deposit shall be acceptable with
verification that an attempt to secure a bond has been denied,
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Worth. The City of Fort Worth will not pay interest on any such
cash deposit.
(1) At such time that the contract is bid for projects other than
assessment projects, the cash deposit shall be ,adjusted to
one hundred twenty five percent (125%) of the actual bid
price. No contract shall be awarded and no work order shall
be issued until such adjustment is made.
(2) When a cash deposit is made, the additional twenty-five
percent (25%) beyond the one hundred percent (100%) of
the estimated developer's share represents additional funds
for change orders during the course of the project. This
twenty five percent (25%) shall be considered the
developer's change order fund.
(3) If the developer makes a cash deposit with the City, the
developer may make timely withdrawals from the cash
funds in order to pay the contractor and/or subcontractor
based on amount of construction work completed as
approved and verified by the City Engineer or authorized
representative. For projects whose actual total contract
cost is $400,000 or greater, such release of security shall
equal the percentage of work completed for that period
multiplied by ninety-five percent (95%). This percentage
shall be applied to the actual current total contract cost to
determine the amount that may be reduced upon request of
developer. For projects whose actual total contract cost is
less than $400,000, such release of security shall equal the
percentage of work completed for that period multiplied by
ninety percent (90%). This percentage shall then be applied
to the actual current total contract cost to determine the
amount of security that may be reduced upon request of
developer. The remaining security, five percent (5%) for
projects of $400,000 or greater and ten percent (10%) for
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projects less than $400,000 together with the remaining
funds from the Developer's Change Order Fund, if any, will
be released to the developer after the project has been
accepted by the City. Partial release of funds shall be limited
to once per month. There shall be no partial release of funds
for projects of less than $25,000. Proof that the developer
has paid the contractor shall be required for partial releases.
5. Purpose, Term and Renewal of Guarantees:
a. Performance and payment bonds, and cash deposits furnished
hereunder shall be for the purposes of guaranteeing satisfactory
compliance by the developer with all requirements, terms and
conditions of this agreement, including, but not limited to, the
satisfactory completion of the improvements prescribed herein,
and the making of payments to any person, firm, corporation or
other entity with whom the developer has a direct contractual
relationship for the performance of work hereunder.
b. Developer shall keep said performance and payment bonds, and/or
cash deposits in full force and effect until such time as developer
has fully complied with the terms and conditions of this
agreement, and failure to keep same in force and effect shall
constitute a default and breach of this agreement.
H. The City shall assume its share of the cost of the improvements covered by
this agreement along with the engineering fee only if funds are available for
such participation. In the event that no funds are available for City
participation, the developer shall award the contract and deposit with the City
a performance and payment bonds or cash for 100 percent of the estimated
total construction cost of the improvements [plus ten percent (10%) for
engineering and miscellaneous costs if the City prepares the plans].
I. On all facilities included in this agreement for which the developer awards its
own construction contract, the developer agrees to follow the following
procedures:
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1 . If the City participates in the cost of the facilities, the construction
contract must be advertised, bid and awarded in accordance with State
statutes prescribing the requirements for the letting of contracts for the
construction of public work. This includes advertising in a local
newspaper at least twice in one or more newspapers of general
circulation in the county or counties in which the work is to be
performed. The second publication must be on or before the tenth
(10th) day before the first date bids may be submitted. The bids must
be opened by an officer or employee of the City at or in an office of the
City.
2. To employ a construction contractor, who is approved by the Director of
the Department having jurisdiction over the facility to be so constructed,
said contractor to meet City's requirements for being insured, licensed
and bonded to do work in public right of way.
3. To require the contractor to furnish to the City payment, performance
and maintenance bonds in the names of the City and the developer for
one hundred percent (100%) of the contract price of the facility, said
bonds to be furnished before work is commence. Developer further
shall require the contractor to provide public liability insurance in the
amounts required by the City's specifications covering that particular
work.
4. To give 48 hours notice to the department having jurisdiction of intent
to commence construction of the facility so that City inspection
personnel will be available; and to require the contractor to allow the
construction to be subject to inspection at any and all times by City
inspection forces, and not to install any paving, 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.
5. To secure approval by the Director of the Department having jurisdiction
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of any and all partial and final payments to the contractor. Said
approval shall be subject to and in accordance with requirements of this
agreement, and is not to constitute approval of the quantities of which
payment is based.
6. To delay connections of buildings to service lines of sewer and water
mains constructed under this contract until said sewer and water mains
and service lines have been completed to the satisfaction of the Water
Department.
7. It is expressly understood by and between the developer and the City of
Fort Worth, that in the event the developer elects to award one single
construction contract for storm drainage and pavement, said contract
shall be separated in the bidding and City participation, if any, shall be
limited to the lowest possible combination of bids as if each of the
above were awarded as separate contracts.
J. Anything to the contrary herein notwithstanding, for and in consideration of
the promises and the covenants herein made by the City, the developer
covenants and agrees as follows:
1 . The developer shall make separate elections with regard to water and/or
sanitary sewer facilities, storm drainage, street improvements and street
lights as to whether the work prescribed herein shall be performed
by the City, or by its contractor, or by the developer, through its
contractor. Each separate election shall be made in writing and
delivered to City no later than six (6) months prior to the expiration of
this agreement. In the event any of such separate elections has not
been made and delivered to City by such date, it shall be conclusively
presumed that the developer has elected that such work be performed
by the City in accordance with all of the terms of this agreement, and in
particular Paragraph V-F hereof.
2. Irrespective of any such election and whether the work is to be
performed by the City, or by its contractor or by the developer through
its contractor, the developer covenants and agrees to deliver to the City
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a performance and payment guarantee in accordance with the provisions
of Paragraph V-F of this agreement.
3. In addition to the guarantee required in the preceding paragraph, in the
event developer elects that the work be performed by the City, or by the
City's contractor, or such election is presumed as provided above, the
developer covenants and agrees to pay to the City the developer's share
of the estimated construction costs. The amount of such estimated
payment shall be computed as set out on the Summary of Cost, hereof,
based upon the lowest responsive bid for such work, as determined by
City, or upon a cost estimated to be performed by City forces prepared
by the City, as appropriate, and shall be subject to adjustment to actual
costs upon final completion of the subject work. Such estimated
payment shall be made promptly upon demand by City, it being
understood that such payment will be made after the receipt of bids for
work, but in every case prior to the award of any construction contract,
unless otherwise specifically set out herein.
4. 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 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, this agreement, or the construction of the
improvements or facilities described herein, whether or not caused, in
whole or in part, by the negligence of officers, agents, or emr)lovees, of
the City. In addition, the developer covenants to indemnify, hold
harmless and defend the City, its officers, agents and employees from
and against all claims, suits, or causes or action of any nature
whatsoever brought for, or on account of any injuries or damages to
persons or property, including death, resulting from any failure to
properly safeguard the work or an account of any act, intentional or
otherwise, neglect or misconduct of the developer, its contractors,
subcontractors, agents or employees, whether or not
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d. The City will install the street name signs upon final approval of the street
construction. The street name signs will remain the property of, and will be
maintained by, the City.
5. OTHER WORKS
In the event that other works is required it will be included as specific
requirements to Community Facilities Agreement.
IN TESTIMONY WHEREOF, the City of Fort Worth has caused this instrument to be
executed in quadruplicate in its name and on its behalf by its City Manager,
attested by its City Secretary, with the corporate seal of the City affixed, and said
Developer has exe ted this instrument in quadruplicate, at Fort Worth, Texas this
the day of
APPROVED AS TO FORM AND RECOMMENDED:
LEGALITY:
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Gary J. St inberger Hugo Malanga, P.E.
Assistant City Attorney Director, Transportation
and Public Works
ATTEST: CITY OF FOR OR H, EXAS
Q By:
Gloria Pear on Vike Groomer
City Secretary Assistant City Manager
LOPER: J�SS/L PAS'&==r'�;mes
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LEGEND
JJ PROP. SANITARY SEWER
---� PHASE 11
FOSS L PARK ADDITION I r----- PROP. MANHOLE
CABI ET A. SLID 3801 I I EXIST. SANITARY SEWER — — — —
---0 EXIST. MANHOLE —
LIMITS OF PROJECT
PROPOSED SEWER LINES ARE
8" UNLESS OTHERWISE
INDICATED
PHASE I
TION
CABINET SIPARK
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SANITARY SEWER
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CARTER & BURGESS,INC.
FOSSIL PARK JOINT VENTURE 7B 0 / FORTW3880 e14.TX7r
�/ rat woen+,tx 76107-ns.
VOL. 11777. PG. 1700 r. PROJECT NO. 991233010
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ESCROW/PLEDGE AGREEMENT
THIS ESCROW/PLEDGE AGREEMENT(the"Agreement"),entered into as of ,2000,
by and among Fossil Park Joint Venture ("Developer"), the City of Fort Worth, Texas a municipal
corporation of Tarrant County, Texas ("Fort Worth") and Comerica Bank-Texas (herein referred to as
"Escrow Agent" or "Lender") is to witness the following:
WHEREAS, Developer and Fort Worth have entered into a Community Facilities Agreement for
Block"G",Lots 22 through 33,Block"I",Lots 5 and 12,Block"J",Lots 13 through 45 and Lots 71 through
79, of PHASE III of FOSSIL PARK ADDITION, an addition to the City of Fort Worth, Tarrant County,
Texas (the "CFA"); and
WHEREAS,the CFA provides that Developer shall submit to Fort Worth performance and payment
bonds, cash deposits or other security acceptance to Fort Worth(collectively, the "Intended Security")for
the purpose of guaranteeing satisfactory compliance by Developer with all requirements, terms, and
conditions of the CFA(collectively, the "Secured Obligations)";
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 Lender, as Escrow Agent, in lieu of and in complete
satisfaction of the obligation to submit the Intended Security to secure the performance of the Secured
Obligations; and
WHEREAS,the source of the funds for the escrow deposit is Developer's cash resources and a loan from
Escrow Agent,as lender,to Developer,as borrower,in the amount of approximately$319,000(the"Loan").
NOW THEREFORE,for and in consideration of the premises,ten dollars($10.00)and other good
and valuable consideration, the receipt, sufficiency, and adequacy of which are hereby acknowledged and
confessed, 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:
"Initial Security Funds" shall mean the cash deposit of$487,500.00, which sum represents 125
percent of the estimated Developer's share of the cost of constructing the improvements identified in the
CFA.The Developer's share of the total cost of such improvements shall hereinafter be called 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.
"Payment and Performance Bond" shall mean a bond issued by a corporate surety or insurance
company acceptable to Fort Worth in an amount equal to cost of improvements not yet completed by
Developer.
SECTION 2. PLEDGE.
As security for the full and punctual performance of the Secured Obligations, Developer hereby
pledges,assigns and transfers to Fort Worth,and hereby grants to Fort Worth a security interest in,the Initial
Security Funds and all rights and privileges pertaining thereto with the exception of the interest income to
be derived therefrom,which interest income shall remain the property ofDevelo—er and shall be distributed
by Escrow Agent in accordance with Developer's periodic instructions.(The Initial Se }�pp. ds and any
jj
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substitution by Developer with a Payment and Performance Bond as permitted hereunder, are collectively
referred to hereafter as the "Pledged Collateral"); TO HAVE AND TO HOLD the Pledged Collateral,
together with all rights,titles,interests,privileges,and preferences appertaining to or incidental thereto,unto
Fort Worth 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 Fort
Worth or Escrow Agent to, or transfer or in any way affect or modify, any obligation of Developer with
respect to any of the Pledged Collateral or any transaction involving or giving rise thereto. As between
Lender and Developer only, without any impact whatsoever on Fort Worth or its superior lien rights
hereunder, this Agreement shall in no way affect or modify any obligation of Developer to Lender with
respect to any of the Pledged Collateral under the terms of the Loan or any transaction involving or giving
rise thereto. In that regard, as between Lender and Developer only, the Developer will fully perform and
comply with all of the terms, covenants and conditions of the Loan and all requirements of Lender related
thereto, including, without limitation, any draw requirements set forth therein.
SECTION 3. PHYSICAL POSSESSION OF PLEDGED COLLATERAL.
Concurrently with the execution of the Agreement,Developer shall have delivered to and deposited
with Escrow Agent the Initial Security Funds representing or evidencing the Pledged Collateral.The parties
acknowledge and agree that Escrow Agent shall be required to segregate the Pledged Collateral from other
funds held by Escrow Agent for Developer in accordance with the normal practices of Escrow Agent as an
Escrow Agent. Escrow Agent shall return all funds on deposit representing or evidencing the Pledged
Collateral remaining in its possession to Developer(or take such other action as Lender may request or direct)
immediately after receipt of written notice from Fort Worth that the Secured Obligations have been fully
performed.During such time as Escrow Agent has possession of the Pledged Collateral,Escrow Agent shall
furnish to Fort Worth (when requested by Fort Worth) written acknowledgments signed by an officer of
Escrow Agent detailing the amount of the Pledged Collateral.
SECTION 4. COVENANTS.
(a) Affirmative Covenants. So long as any of the Secured 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 Pledged Collateral;
(ii) furnish Fort with information which Fort Worth may reasonably request concerning
the Pledged Collateral; and
(iii) notify Fort Worth of any claim,action,or proceeding affecting title to the Pledged
Collateral or Fort Worth's security interest therein.
(iv) Adjust the Pledged Collateral to an amount equal to the actual contract price,
including revisions thereto.
(b) Negative Covenants. So long as any of the Secured Obligations remain unperformed,
Developer covenants and agrees that Developer will not:
Page 2 of 7 %� �l�r�/r�S H o QD
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Ab� AMOk
(i) assign or transfer any rights of Developer in the Pledged Collateral; or
(ii) create any Lien in the Pledged Collateral,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 and in favor of Lender.
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 or performance of the Secured 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 by Developer hereunder, Fort Worth shall
provide Lender with a reasonable opportunity to complete the improvements required by
the CFA, if Lender chooses to do so, and to utilize the Pledged Collateral to do so as
contemplated by, and in accordance with, the provisions of Section 9 below. Upon the
failure of Lender to complete the improvements required by the CFA as aforesaid, Fort
Worth shall have the right to direct Escrow Agent to transfer to Fort Worth the balance of
the Pledged Collateral. Escrow Agent is hereby authorized and directed to transfer the
Pledged Collateral to Fort Worth without the consent of Developer immediately upon the
receipt of a written statement(upon which Escrow Agent may totally rely)purporting to be
executed by an authorized representative of Fort Worth stating that:
(i) a Default by Developer has occurred under the CFA executed in connection with
this Escrow/Pledge Agreement;
(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 such
notice; and
(iii) Fort Worth is entitled to have the balance of the Pledged Collateral transferred to
Fort Worth in accordance with this Agreement for completion of Developer's
obligation hereunder.
In the foregoing regard,Fort Worth will cause the improvements required by the CFA to be
completd within a reasonable period of time after the transfer to it of the Pledged Collateral,
failing which the Lender may cause the improvements required by the CFA to be completed
utilizing the Pledged Collateral to do so and,in furtherance thereof,Fort Worth will release
the Pledged Collateral to Lender in accordance generally with the provisions of Section 9
below.Notwithstanding anything contained herein to the contrary,to the extent any Pledged
Collateral remains unused after the completion of the improvements required by the CFA
(whether same are completed by Developer, Lender or Fort Worth) or upon Ft. Worth's
failure to complete the improvements as provided above, all such remaining Pledged
Collateral shall be promptly paid over to Lender.
Page 3 of 7 QJ ���G� °�� ���UQLD
AIN, ..�
(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:
Fossil Park Joint Venture
Attn: James J. Melino
8235 Douglas Avenue, Suite 650,LB-65
Dallas, Texas 75225
To: Escrow Agent:
Comerica Bank-Texas
Attn: Alan Williams
Mail Code 6514
P.O. Box 650282
Dallas, Texas 75265
To: City of Fort Worth
City Of Fort Worth
Attn: City Treasurer
1000 Throckmorton
Fort Worth,TX 76102
With a copy to:
City of Fort Worth
Attn: Raquel Velasquez, Development Project Coord.
Development/Planning Section
Department of Transportation and Public Works
1000 Throckmorton
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 obligation under the CFA, Fort Worth's sole and exclusive
remedy shall be to complete the obligations of Developer at Developer's expense.In 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(without
the consent of Fort Worth), at any time and from time to time, to obtain releases of all or any part of the
Pledged Collateral (hereinafter called the "Released Collateral") upon satisfaction of the following
conditions:
Page 4 of 7 V1Tbf ��: �� u;G��
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(a) Developer shall provide Fort Worth and Escrow Agent written notice (the "Substitution
Notice")that the Developer desires to obtain Released Collateral(as specified and described
in such notice) in exchange for a contemporaneous substitution of a Payment and
Performance Bond(as also specified and described in the Substitution Notice); and
(b) Developer shall pledge to,or obtain for the benefit of,Fort Worth,and deliver to Fort Worth
a Payment and Performance Bond from a surety 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 Payment and Performance Bonds shall be accompanied by a written commitment from
the surety that such Performance and Payment Bonds shall 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 consent
of Fort Worth) to return to Lender or, if authorized under the terms of the Loan, to Developer the balance
of the original Intended 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 Lender may request or direct.
Developer shall pay the expenses incurred by Escrow Agent in connection with obtaining each such release
and substitution.
SECTION 9 PERIODIC WITHDRAWAL OF COLLATERAL.
Notwithstanding any contrary provision in this Agreement, Developer shall have the right to periodic
withdrawals of the Pledged Collateral (hereinafter called the"Withdrawn Collateral"),upon satisfaction of
the following conditions:
(a) Developer shall provide Fort Worth and Escrow Agent with written notice(the "Withdrawal
Notice")that Developer desires to obtain the Withdrawn Collateral; and
(b) all administrative requirements or prerequisites to the funding of any draw under the Loan
shall have been fully performed; and
(c) the balance of the Pledged Collateral after withdrawal of the Withdrawn Collateral is at least
equal to the estimated value of the Secured Obligations then remaining to be performed
(such remaining value is hereinafter called the "Estimated Cost to Complete").
Neither Escrow Agent nor Lender shall be required to fund any amount of deficit of the Estimated Cost to
Complete.
The Withdrawal Notice shall include a description of the Withdrawn Collateral and Developer's calculation
of the Estimated Cost to Complete.Upon receipt of the Withdrawal Notice,Fort Worth shall have seven(7)
calendar days to notify Developer of Fort Worth's objection to Developer's calculation of the Estimated Cost
to Complete by providing Developer with Fort Worth's calculation of the Estimated Cost to Complete.The
grounds for any objection are limited solely to a good faith determination by Fort Worth that the balance of
the Pledged Collateral is insufficient to cover the Estimated Cost to Complete.If Fort Worth fails to timely
notify Developer and Escrow Agent of any objection,then Developer's calculation shall be deemed to have
been accepted and approved by Fort Worth and Escrow Agent is authorized to release the Withdrawn
Page 5 of 7
^ MM �ltiliUo
Collatral requested by Developer without delay.In the event a written objection is timely filed by Fort Worth
and Fort Worth's calculation is within a range of five percent (5%) of Developer's Estimated Cost to
Complete,then Developer shall be allowed to withdraw the amount corresponding to Fort Worth's calculation
of the Estimated Cost to Complete.If Fort Worth's calculation of the Estimated Cost to Complete is outside
a range of five percent(5%)of Developer's Estimated Cost to Complete, then Fort Worth and Developer,
through a designated representative,will reconcile the calculations and jointly approve an Estimated Cost to
Complete and advise Escrow Agent to disburse the amount originally submitted by Developer, less any
amounts necessary to ensure that the balance of the Pledged collateral equals the Estimated Cost to Complete
as jointly determined by Fort Worth and Developer and less any amount of retainage (initially ten percent
of the funding of each draw), as and to the extent required by the Loan.
If after the expiration of two (2)years from the date of this Agreement either
(i) none of the Secured Obligations have been performed;
(ii) the term of the CFA has not been extended by Fort Worth,
then in either event, Fort Worth shall be entitled to receive the Pledged Collateral as specified in Section 6
and construct the improvements contemplated in the CFA.
SECTION 10. NON-ASSIGNABILITY OF FORT WORTH'S RIGHTS.
The rights,powers,and interests held by Fort Worth hereunder in and to the Pledged Collateral 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 Pledged Collateral.
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.
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.
This Agreement is to be construed and interpreted in accordance with the laws of the State of Texas.
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.
Page 6 of 7
Ct
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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 kind 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.
DEVELOPER:
FOSSIL PARK JOINT VENTURE,
a Texas joint venture
By: Lafayette Properties, Inc.,
a Texas corpor ,
ranage
e elino,
sident
CITUFORT R , XAS
By:
Mike Groomer
Assistant City Manager
ESCROW AGENT:
COMERICA BANK-TEXAS
By:
Title: l-'e"do'Wle
APPROVED AS TO FORM AND
LEGALITY:
Assistant ity Attorney
Date:
F:\jjm\doc\0200\Escrow Pledge Agreement-City Form --
;� I HCRD
Page 7 of 7 (MaJj /a ey
0
City of Fort Worth, Texas
"agog and Council Communication
DATE REFERENCE NUMBER LOG NAME PAGE
7/11/00 C-18125 20LAFAYETTE 1 of 1
SUBJECT COMMUNITY FACILITIES AGREEMENT WITH LAFAYETTE PROPERTIES, INC. FOR
THE INSTALLATION OF COMMUNITY FACILITIES FOR CONSTRUCTION OF
WATER AND SEWER SERVICES TO SERVE FOSSIL PARK ADDITION, PHASE III
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a Community Facilities
Agreement with Lafayette Properties, Inc. for the installation of community facilities for construction of
water and sewer services to serve Fossil Park Addition, Phase III.
DISCUSSION:
Lafayette Properties, Inc., the developer of Fossil Park Addition, Phase III, has executed a proposed
contract for community facilities to serve a single-family (11 lots) development located in north Fort
Worth, north of 1-30 and west of IH35W (see attached map). This development is located in COUNCIL
DISTRICT 4.
Total cost participation for water and sewer improvements for this development is $180,499. The
developer's estimated cost for water and sewer improvements is $152,050 plus $3,041 for construction
inspection fees. The City's estimated cost participation is $24,910 plus $498 for construction inspection
fees.
PLAN COMMISSION APPROVAL - On May 26, 1999, the Plan Commission approved preliminary plat
(PP99018). The final plat has been submitted to staff for review.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that funds are available in the current capital budget, as appropriated, of
the Commercial Paper-Sewer Fund.
MG:k
Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: (to)
APPROVED
Mike Groomer 6140 CITY COUNCIL
Originating Department Head:
Hugo Malanga 7801 (from) JUL 11 2000
PS46 539140 070460136400 $24,910.00 y
Additional Information Contact:
City Secretary of the
City of Fort Worth,T!!zae
Hugo Malanga 7801