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Contract 61370
Received Date: May 7, 2024 Received Time: 7:47 a.m. Developer and Project Information Cover Sheet: Developer Company Name Address, State, Zip Code: Phone & Email: Authorized Signatory, Title: Project Name: Brief Description: Project Location: Plat Case Number: None Given Mapsco: 711 W CFA Number: 23-0142 FG Aledo Development, LLC 3045 Lackland, Fort Worth, TX 76116 817-732-2291 1 kgill@sableholdings.com I Kim Gill, President Morningstar Westpoint Parkway Offsite Sanitary Sewer Sewer Improvements Mapsco 711 W Plat Name: None Given Council District: 13 City Project Number: 1105124 1 IPRC23-0151 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX City of Fort Worth, Texas Page 1 of 18 Standard Community Facilities Agreement with City Participation Rev. 4/2/20 City Secretary Number: 61370 STANDARD COMMUNITY FACILITIES AGREEMENT WITH CITY PARTICIPATION This COMMUNITY FACILITIES AGREEMENT ("Agreement") is made and entered into by and between the City of Fort Worth ("City"), a home -rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager, and FG Aledo Development, LLC ("Developer"), acting by and through its duly authorized representative. City and Developer are referred to herein individually as a "party" and collectively as the "parties." WHEREAS, Developer is constructing private improvements or subdividing land within the corporate limits of Fort Worth, Texas or its extraterritorial jurisdiction, for a project known as Morningstar Westpoint Parkway Offsite Sanitary Sewer ("Project"); and WHEREAS, the City desires to ensure that all developments are adequately served by public infrastructure and that the public infrastructure is constructed according to City standards; and WHEREAS, as a condition of approval of the Project, Developer is required to bear a portion of the costs of municipal infrastructure by constructing the public infrastructure necessary for the Project as described in this Agreement ("Community Facilities" or "Improvements"); and WHEREAS, as a condition of approval of the Project, Developer is required to meet the additional obligations contained in this Agreement, and Developer may be required to make dedications of land, pay fees or construction costs, or meet other obligations that are not a part of this Agreement; and WHEREAS, the City desires to participate in this Agreement in an amount not to exceed $2,385,486.12 to enlarge the scope of the Improvements beyond what Developer is responsible for constructing by oversizing 12-inch and 15-inch sewer mains to a 24-inch sewer main as authorized by City Council through approval of M&C 24-0362 on April 23, 2024 ("City Participation"); and WHEREAS, the City Participation includes reimbursement to Developer in amounts not to exceed $2,288,871.53 for construction costs and $45,777.43 for material testing costs. The remaining City Participation in the amount of $50,837.16 shall not be paid to Developer, but will be used by City to pay for the City's portion of construction inspection service fees, administrative material testing fees, and water lab testing fees; and WHEREAS, the Developer and the City desire to enter into this Agreement in connection with the collective Improvements for the Project; NOW, THEREFORE, for and in consideration of the covenants and conditions contained herein, the City and the Developer do hereby agree as follows: OFFICIAL RECORD City of Fort Worth, Texas CITY SECRETARY Page 2 of 18 Standard Community Facilities Agreement with City Participation FT. WORTH, TX Rev. 4/2/20 1. CFA Ordinance The Community Facilities Agreements Ordinance ("CFA Ordinance"), as amended, is incorporated into this Agreement by reference, as if it was fully set forth herein. Developer agrees to comply with all provisions of the CFA Ordinance in the performance of Developer's duties and obligations pursuant to this Agreement and to cause all contractors hired by Developer to comply with the CFA Ordinance in connection with the work performed by the contractors. If a conflict exist between the terms and conditions of this Agreement and the CFA Ordinance, the CFA Ordinance shall control. 2. Incorporation of Engineering Plans The engineering plans for the Improvements that have been approved by the City ("Engineering Plans") are incorporated into this Agreement by reference as if fully set out herein. Developer shall provide at its expense, unless otherwise agreed to by City, all engineering drawings and documents necessary to construct the Improvements required by this Agreement. 3. Description of Improvements; Exhibits and Attachments The following exhibits describe the general location, nature and extent of the Improvements that are the subject of this Agreement and are attached hereto and incorporated herein by reference: ❑ Exhibit A: Water ® Exhibit A-1: Sewer ❑ Exhibit B: Paving ❑ Exhibit 13-1: Storm Drain ❑ Exhibit C: Street Lights & Signs The Location Map and Cost Estimates are also attached hereto and incorporated herein by reference. To the extent that Exhibits A, A-1, B, B-1, C, the Location Map, or the Cost Estimates conflict with the Engineering Plans, the Engineering Plans shall control. If applicable, Attachment I — Changes to Standard Community Facilities Agreement, Attachment 2 — Phased CFA Provisions, and Attachment 3 — Concurrent CFA Provisions, are attached hereto and incorporated herein for all purposes. 4. Construction of Improvements Developer agrees to cause the construction of the Improvements contemplated by this Agreement and that said construction shall be completed in a good and workmanlike manner and in accordance with all City standards and specifications, the Engineering Plans, the Cost Estimates provided for the Improvements, and this Agreement. Developer acknowledges that City will not accept the Improvements until the City receives affidavits and lien releases signed by Developer's contractors verifying that the contractors, and all subcontractors and material suppliers, have been paid in full for constructing the Improvements, and consent of the surety on payment and performance bonds provided for the Improvements. If the Developer's contractors: (a) are not constructing the Improvements in accordance with the Engineering Plans; (b) the contractors violate federal law, state law or local law, policies, rules or regulations in connection with the construction of the Improvements; or (c) coordination of the timing City of Fort Worth, Texas Page 3 of 18 Standard Community Facilities Agreement with City Participation Rev. 4/2/20 of the construction of adjacent utilities is necessary to avoid having to remove and replace Improvements that Developer's contractors are about to install, the City may temporarily suspend the construction of the Improvements by delivering a written notice to Developer and Developer's contractors. The temporary suspension of the construction of the Improvements shall only occur for the amount of time necessary for Developer's contractors to correct the violation or for the coordination of the utilities to be completed, and upon any such suspension, City agrees to reimburse Developer for the City's share of construction costs for work properly completed through the date City suspended construction. 5. Financial Guarantee Developer has provided the City with a financial guarantee in the form and amounts set forth in this Agreement which guarantees the construction of the Improvements and payment by Developer of all contractors, subcontractors, and material suppliers for the Improvements ("Financial Guarantee"). Developer shall keep the Financial Guarantee in full force and effect until released by the City and shall not reduce the amount of the Financial Guarantee unless authorized by the City in accordance with the CFA Ordinance. 6. Completion Deadline; Extension Periods This Agreement shall be effective on the date this Agreement is executed by the City's Assistant City Manager ("Effective Date"). Developer shall complete construction of the Improvements and obtain the City's acceptance of the Improvements within two (2) years of the Effective Date ("Term"). If construction of the Improvements has started during the Term, the Developer may request that this Agreement be extended for an additional period of time ("Extension Period"). All Extension Periods shall be agreed to in writing by the City and the Developer as set forth in a written amendment to this Agreement. In no event shall the Term of this Agreement plus any Extension Periods be for more than three years. 7. Failure to Construct the Improvements (a) The City may utilize the Developer's Financial Guarantee to cause the completion of the construction of the Improvements if at the end of the Term, and any Extension Periods, the Improvements have not been completed and accepted by the City. If the Improvements are not completed at the end of the Term, and any Extension Periods, there will be no further obligation for City Participation to be paid to the Developer. (b) The City may utilize the Developer's Financial Guarantee to cause the completion of the construction of the Improvements or to cause the payment of costs for construction of the Improvements before the expiration of the Term, and any Extension Period, if the Developer breaches this Agreement, becomes insolvent, or fails to pay costs of construction. (c) If the Financial Guarantee is a Completion Agreement and the Developer's contractors or suppliers are not paid for construction costs or materials supplied for the Improvements the contractors and suppliers may place a lien upon any property which the City does not have an ownership interest that is the subject of the Completion Agreement. City of Fort Worth, Texas Page 4 of 18 Standard Community Facilities Agreement with City Participation Rev. 4/2/20 (d) Nothing contained herein is intended to limit the Developer's obligations under the CFA Ordinance, this Agreement, the Financial Guarantee, Developer's agreements with Developer's contractors, or other related agreements. 8. Termination If Developer desires to terminate this Agreement before Developer's contractors begin constructing the Improvements, Developer agrees to the following: (a) that Developer and City must execute a termination of this Agreement in writing; (b) that Developer will vacate any final plats that have been filed with the county where the Project is located; and (c) to pay to the City all costs incurred by the City in connection with this Agreement, including time spent by the City's inspectors at preconstruction meetings. 9. Award of Construction Contracts (a) Developer will award all contracts for the construction of the Improvements and cause the Improvements to be constructed in accordance with the CFA Ordinance. (b) Developer will employ construction contractors who meet the requirements of the City to construct the Improvements including, but not limited, to being prequalified, insured, licensed and bonded to construct the Improvements in the City. (c) Developer will require Developer's contractors to provide the City with payment and performance bonds naming the City and the Developer as dual obligees, in the amount of one hundred percent (100%) of the cost of the Improvements as required by the CFA Ordinance. The payment and performance bonds shall guarantee construction of the Improvements and payment of all subcontractors and material suppliers. Developer agrees to require Developer's contractors to provide the City with a maintenance bond naming the City as an obligee, in the amount of one hundred percent (100%) of the cost of the Improvements, that guarantees correction of defects in materials and workmanship for the Improvements by the contractor and surety for a period of two (2) years after completion and final acceptance of the Improvements by the City. All bonds must be provided to the City before construction begins and must meet the requirements of the City's Standard Conditions, Chapter 2253 of the Texas Government Code, and the Texas Insurance Code. (d) Developer will require Developer's contractors to provide the City with insurance equal to or in excess of the amounts required by the City's standard specifications and contract documents for developer -awarded infrastructure construction contracts. The City must be named as an additional insured on all insurance policies. The Developer must provide the City with a Certificate of Insurance (ACORD or form approved by the State of Texas), supplied by each contractor's insurance provider, which shall be made a part of the Project Manual. (e) Developer will require the Developer's contractors to give forty-eight (48) hours' advance notice of their intent to commence construction of the Improvements to the City's Construction Services Division so that City inspection personnel will be available. Developer will require Developer's City of Fort Worth, Texas Page 5 of 18 Standard Community Facilities Agreement with City Participation Rev. 4/2/20 contractors to allow construction of the Improvements to be subject to inspection at any and all times by the City's inspectors. Developer will require Developer's contractors to not install or relocate any sanitary sewer, storm drain, or water pipe unless a City inspector is present and gives consent to proceed, and to allow such laboratory tests as may be required by the City. (f) Developer will not allow Developer's contractors to begin construction of the Improvements until a notice to proceed to construction is issued by the City. (g) Developer will not allow Developer's contractors to connect buildings to service lines of sewer and water mains constructed pursuant to this Agreement, if any, until said sewer, water mains and service lines have been completed to the satisfaction of the City. (h) Developer shall ensure the contractors are paid the City's wage rates in effect during construction of the Improvements. 10. Utilities Developer shall cause the installation or adjustment of utilities required to: (1) serve the Project; and (2) to construct the Improvements required herein. City shall not be responsible for payment of any costs that may be incurred by Developer in the relocation of any utilities that are or may be in conflict with any of the Improvements to be constructed pursuant to this Agreement. 11. Easements and Rights -of -Way Developer agrees to provide, at its expense, all necessary rights -of -way and easements required for the construction and dedication to the City of the Improvements provided for by this Agreement. 12. Liability and Indemnification (a) DEVELOPER HEREBY RELEASES AND AGREES TO INDEMNIFY, DEFEND AND HOLD THE CITY HARMLESS FOR ANY INADEQUACIES IN THE PRELIMINARY PLANS, SPECIFICATIONS, ENGINEERING PLANS, AND COST ESTIMATES SUPPLIED BY THE DEVELOPER FOR THIS AGREEMENT. (b) THE DEVELOPER COVENANTS AND AGREES TO, AND BY THESE PRESENTS DOES HEREBY FULLY INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM ALL SUITS, ACTIONS OR CLAIMS OF ANY CHARACTER, WHETHER REAL OR ASSERTED, BROUGHT FOR OR ONACCOUNT OFANYINJURIES OR DAMAGES SUSTAINED BYANYPERSONS, 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 ONACCOUNT OF ANYACT, 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 City of Fort Worth, Texas Page 6 of 18 Standard Community Facilities Agreement with City Participation Rev. 4/2/20 OR IN PART, BY THE ALLEGED NEGLIGENCE OF THE CITY OF FORT WORTH, ITS OFFICERS, SERVANTS, OR EMPLOYEES. (c) DEVELOPER WILL REQUIRE ITS CONTRACTORS TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, SUITS OR CAUSES OF ACTION OF ANY NATURE WHATSOEVER, WHETHER REAL OR ASSERTED, BROUGHT FOR OR ON ACCOUNT OF ANY INJURIES OR DAMAGES TO PERSONS OR PROPERTY, INCLUDING DEATH, RESULTING FROM, OR INANY WAY CONNECTED WITH, THE CONSTRUCTION OF THE IMPROVEMENTS CONTEMPLATED HEREIN, WHETHER OR NOT SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED, IN WHOLE OR IN PART, BY THE ALLEGED NEGLIGENCE OF THE CITY OF FORT WORTH, ITS OFFICERS, SERVANTS, OR EMPLOYEES. FURTHER, DEVELOPER WILL REQUIRE ITS CONTRACTORS TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE CITY FOR ANY LOSSES, DAMAGES, COSTS OR EXPENSES SUFFERED BY THE CITY OR CAUSED AS A RESULT OF SAID CONTRACTORS' FAILURE TO COMPLETE THE WORK AND CONSTRUCT THE IMPROVEMENTS IN A GOOD AND WORKMANLIKE MANNER, FREE FROM DEFECTS, IN CONFORMANCE WITH THE CFA ORDINANCE, AND IN ACCORDANCE WITH ALL PLANS AND SPECIFICATIONS. 13. Right to Enforce Contracts Upon completion of all work associated with the construction of the Improvements, Developer will assign to the City a non-exclusive right to enforce the contracts entered into by Developer with its contractors, along with an assignment of all warranties given by the contractors, whether express or implied. Further, Developer agrees that all contracts with any contractor shall include provisions granting to the City the right to enforce such contracts as an express intended third party beneficiary of such contracts. 14. Estimated Fees Paid by Developer; Reconciliation Prior to execution of this Agreement, Developer has paid to the City the Developer's portion of the estimated cost of administrative material testing service fees, construction inspection service fees, and water testing lab fees in the amounts set forth in the Cost Summary section of this Agreement. Upon completion of the construction of the Improvements, the City will reconcile the actual cost of administrative material testing service fees, construction inspection service fees, and water testing lab fees with the estimated fees paid by Developer. If the actual costs of the Developer's portion of the fees are more than the estimated payments made by the Developer, the Developer must pay the difference to the City before the Improvements will be accepted by the City. If the actual costs of the fees are less than the estimated payments made by the Developer, the City will refund the difference to the Developer. If the difference between the actual costs and the estimated payments made by the Developer is less than fifty dollars ($50.00), the City will not issue a refund and the Developer will not be responsible for paying the difference. The financial guarantee will not be released by the City or returned to the Developer until reconciliation has been completed by the City and any fees owed to the City have been paid by the Developer. 15. Material Testing The City maintains a list of pre -approved material testing laboratories. The Developer must City of Fort Worth, Texas Page 7 of 18 Standard Community Facilities Agreement with City Participation Rev. 4/2/20 contract with material testing laboratories on the City's list. Material testing laboratories will provide copies of all test results directly to the City and the Developer. If the Improvements being constructed fail a test, the Developer must correct or replace the Improvements until the Improvements pass all retests. The Developer must pay the material testing laboratories directly for all material testing and retesting. The City will obtain proof from the material testing laboratories that the material testing laboratories have been paid in full by the Developer before the City will accept the Improvements. 16. Notices All notices required or permitted under this Agreement may be given to a party by hand - delivery or by mail, addressed to such party at the address stated below. Any notice so given shall be deemed to have been received when deposited in the United States mail so addressed with postage prepaid: CITY: Development Coordination Office City of Fort Worth 200 Texas Street Fort Worth, Texas 76102 With copies to: City Attorney's Office City of Fort Worth 200 Texas Street Fort Worth, Texas 76102 and City Manager's Office City of Fort Worth 200 Texas Street Fort Worth, Texas 76102 DEVELOPER: FG Aledo Development, LLC 3045 Lackland Road Fort Worth, Texas 76116 Or to such other address one party may hereafter designate by notice in writing addressed and mailed or delivered to the other party hereto. 17. Right to Audit Developer agrees that, until the expiration of three (3) years after acceptance by the City of the Improvements constructed pursuant to this Agreement, that the City shall have access to and the right to examine any directly pertinent books, documents, papers and records of the Developer involving transactions relating to this Agreement. Developer agrees that the City shall have access during normal working hours to all necessary Developer facilities and shall be provided adequate and appropriate City of Fort Worth, Texas Page 8 of 18 Standard Community Facilities Agreement with City Participation Rev. 4/2/20 workspace in order to conduct audits in compliance with the provisions of this section. The City shall give Developer reasonable advance notice of intended audits. Developer further agrees to include in all contracts with Developer's contractors for the Improvements a provision to the effect that the contractor agrees that the City shall, until the expiration of three (3) years after final payment under the contract, have access to and the right to examine any directly pertinent books, documents, papers and records of such contractor, involving transactions to the contract, and further, that City shall have access during normal working hours to all of the contractor's facilities, and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. City shall give Developer's contractors reasonable advance notice of intended audits. 18. Independent Contractor It is expressly understood and agreed that Developer and its employees, representative, agents, servants, officers, contractors, subcontractors, and volunteers shall operate as independent contractors as to all rights and privileges and work performed under this Agreement, and not as agents, representatives or employees of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Developer shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers. Developer acknowledges that the doctrine of respondeat superior shall not apply as between the City and its officers, representatives, agents, servants and employees, and Developer and its employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers. Developer further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Developer. It is further understood that the City shall in no way be considered a co -employer or a joint employer of Developer or any employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers of Developer. Neither Developer, nor any officers, agents, servants, employees or subcontractors of Developer shall be entitled to any employment benefits from the City. Developer shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers. The City, through its authorized representatives and employees, shall have the sole and exclusive right to exercise jurisdiction and control over City employees. 19. Applicable Law; Venue This Agreement shall be construed under and in accordance with Texas law. Venue shall be in the state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 20. Non -Waiver The failure of the City to insist upon the performance of any term or provision of this Agreement or to exercise any right herein conferred shall not be construed as a waiver or relinquishment to any extent of City's right to assert or rely on any such term or right on any future occasion. City of Fort Worth, Texas Page 9 of 18 Standard Community Facilities Agreement with City Participation Rev. 4/2/20 21. Governmental Powers and Immunities. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. 22. Headings The paragraph headings contained herein are for the convenience in reference and are not intended to define or limit the scope of any provision of this Agreement. 23. Severability In the event that any clause or provision of this Agreement shall be held to be invalid by any court of competent jurisdiction, the invalidity of such clause or provision shall not affect any of the remaining provisions hereof. 24. Review of Counsel City and Developer, and if they so choose, their attorneys, have had the opportunity to review and comment on this document; therefore any rule of contract construction or interpretation that would normally call for the document to be interpreted as against the drafting party shall not apply in interpretation of this Agreement, and each section, portion, and provision of this Agreement shall be construed solely on the basis of the language contained therein, regardless of who authored such language. 25. Prohibition on Boycotting Israel Developer acknowledges that in accordance with Chapter 2271 of the Texas Government Code, the City is prohibited from entering into a contract with a company with 10 or more full-time employees that has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. To the extent that Chapter 2271 of the Government Code is applicable to this Agreement, by signing this Agreement, Developer certifies that Developer's signature provides written verification to the City that Developer: (1) does not boycott Israel; and (2) will not boycott Israel during the term of this Agreement. 26. Prohibition on Boycotting Energy Companies Developer acknowledges that in accordance with Chapter 2276 of the Texas Government Code the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1) does not boycott City of Fort Worth, Texas Page 10 of 18 Standard Community Facilities Agreement with City Participation Rev. 4/2/20 energy companies; and (2) will not boycott energy companies during the term of the contract. To the extent that Chapter 2276 of the Government Code is applicable to this Agreement, by signing this Agreement, Developer certifies that Developer's signature provides written verification to the City that Developer: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. 27. Prohibition on Discrimination Against Firearm and Ammunition Industries Developer acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Developer certifies that Developer's signature provides written verification to the City that Developer: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. 28. Compliance with Public Information Act Requests The requirements of Subchapter J, Chapter 552, Government Code, may apply to this Agreement and Developer agrees that the Agreement can be terminated if Developer knowingly or intentionally fails to comply with a requirement of that subchapter. Developer acknowledges that section 552.371 of the Texas Government Code applies to this Agreement if. (1) this Agreement has a stated expenditure of at least $1 million in public funds for the purchase of good or services by the City; or (2) this Agreement results in the expenditure of at least $1 million in public funds for the purchase of goods or services by the City in a fiscal year of the City. To the extent that section 552.371 of the Texas Government Code applies to this Agreement, Developer shall comply with section 552.372 of the Texas Government Code by: (1) preserving all contracting information relating to this Agreement as provided by the records retention requirements applicable to the City for the duration of the Agreement; (2) promptly providing the City any contracting information related to this Agreement that is in the custody or possession of Developer on request of the City; and (3) on completion of the Agreement, either (a) providing at no cost to the City all contracting information related to the Agreement that is in the custody or possession of Developer; or (b) preserving the contracting information relating to the Agreement as provided by the retention requirements application to the City. 29. Immigration and Nationality Act Developer shall verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by City, Developer shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Developer shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Developer employee who is not legally eligible to perform such services. DEVELOPER SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, City of Fort Worth, Texas Page 11 of 18 Standard Community Facilities Agreement with City Participation Rev. 4/2/20 LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY DEVELOPER, DEVELOPER'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice to Developer, shall have the right to immediately terminate this Agreement for violations of this provision by Developer. 30. Amendment No amendment, modification, or alteration of the terms of this Agreement shall be binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by the City and Developer. 31. Assignment and Successors Developer shall not assign or subcontract all or any part of its rights, privileges, or duties under this Agreement without the prior written consent of City. Any attempted assignment or subcontract without the City's prior written approval shall be void and constitute a breach of this Agreement. 32. No Third -Party Beneficiaries The provisions and conditions of this Agreement are solely for the benefit of the City and Developer, and any lawful assign or successor of Developer, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 33. Compliance with Laws, Ordinances, Rules and Regulations Developer, its officers, agents, servants, employees, and contractors, shall abide by and comply with all laws, federal, state and local, including all ordinances, rules and regulations of City. It is agreed and understood that, if City calls to the attention of Developer any such violation on the part of Developer or any of its officers, agents, servants, employees, or subcontractors, then Developer shall immediately desist from and correct such violation. 34. Signature Authority The person signing this Agreement on behalf of Developer warrants that he or she has the legal authority to execute this Agreement on behalf of the Developer, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The City is fully entitled to rely on this warranty and representation in entering into this Agreement. 35. Counterparts This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but which together will constitute one instrument. 36. Entire Agreement City of Fort Worth, Texas Page 12 of 18 Standard Community Facilities Agreement with City Participation Rev. 4/2/20 This written instrument, together with any attachments, exhibits, and appendices, constitutes the entire understanding between the City and Developer concerning the work to be performed hereunder, and any prior or contemporaneous, oral or written agreement that purports to vary from the terms hereof shall be void. 37. City Participation; Fiscal Funding Limitation (a) The City shall reimburse Developer in amounts not to exceed $2,288,871.53 for construction costs and $45,777.43 for material testing costs. The remaining City Participation in the amount of $50,837.16 shall not be paid to Developer, but will be used by City to pay for the City's portion of construction inspection service fees, administrative material testing fees, and water lab testing fees. Developer must register as a vendor of the City in order for the City Participation to be paid to Developer. (b) As construction of the Improvements commences, Developer will receive applications for payment from its contractors. Developer shall verify that each application for payment is due and payable under the construction contract between Developer and the contractors and that the Improvements that are the subject of the application for payment have been constructed. Developer shall submit payment requests to the City, in the form of an invoice, no more frequently than one time per month in order to obtain reimbursement of the City Participation (each a "Payment Request"). Each Payment Request shall be delivered to the City through the City's Ebuilder software system. (c) Each Payment Request may seek reimbursement for the City's portion of the Improvements that have been constructed with proof of invoices from Developer's contractors. Commencing with the second Payment Request, Developer shall provide an affidavit of payment and lien release signed by the Developer's contractor covering the amount of the previous Payment Request. Each affidavit and lien release shall verify Developer's payment to the contractor for the previous Payment Requests and the contractor's payment to all subcontractors and material suppliers of all amounts owed in connection with the previous Payment Requests. The City shall pay the amount of each Payment Request to Developer within 30 days after receiving the invoice. City shall have no obligation to pay Developer for the second Payment Request or any subsequent Payment Request until Developer provides the City with the affidavit of payment and lien release signed by Developer's contractor verifying Developer's payment to the contractor for the previous Payment Requests and the contractor's payment to all subcontractors and material suppliers of all amounts owed in connection with the previous Payment Requests. The City Participation for the construction costs was calculated as follows: [TABLE ON FOLLOWING PAGE] City of Fort Worth, Texas Page 13 of 18 Standard Community Facilities Agreement with City Participation Rev. 4/2/20 IPRC23-0151- Morningstar Westpoint SS Item Unit of Bid Description Number Measure Quantity JNIT il: SANITARY SEWER IMPROVEMENTS (21) #1-1 3331.4309 24" HDPE DR-17 DIPS Pipe LF 3306 #1-2 3305.0202 Imported Embed ment/Backfill, CSS Cy 50 #1-3 3305.0203 Imported Embedment/Backfill, CLSM (D2011301) CY 2400 41-4 3305.0116 Concrete Encasement for Utility Pipes CY 56 #1-5 3331.4323 24" DIP Sewer Pipe LF 762 #1-6 9999.0207 Epoxy Coating LF 404 #1-7 3 305.1007 4 2" Casi ng by 0 pen Cu t LF 155 #1-8 3305.0109 Trench Safety LF 4108 #1-9 9999.0210 Wagner No. 2050-200 Oder Control (See Sheet 16) EA 1 #1-10 9999.0211 Wagner No. 2050-450 Order Control (See Sheet 16) EA 4 41-11 3301.0002 Post -CCTV Inspection LF 4108 #1-12 3339.1101 5' Manhole (0-6' Depth) EA 18 #1-13 3339.1102 5' Drop Manhole (0-6' Depth) EA 3 #1-14 3339.1103 5' Extra Depth Manhole VF 312 #1-15 3339.0001 Epoxy Manhole Coating (24" Manholes Only) VF 475 #1-16 3301.0101 Manhole Vacuum Testing EA 21 #1-17 3305.0113 Trench Water Stops EA 7 #1-18 3137.0102 Twisted Cabion Baskets SY 356 #1-19 3331.4115 8" Sewer Pipe LF 40 #1-20 3331.4208 12" Sewer Pipe LF 20 #1-21 3331.4225 18" Sewer Pipe LF 20 UNIT II: SANITARY SEWER IMPROVEMENTS (21) Total Cost Developer Cost (100%) Developer Cost (16.4 %) City Participation Cost (83.696) Unit Price Total Cost. $375.00 $1,239,750.00 $125.00 $6,250.00 $135.00 $324,000.00 $75.00 $4,200.00 $425.00 $323,850.00 $310.00 $125,240.00 $425.00 $65,875.00 $2.00 $8,216.W $18,000.00 518,000.00 $31,250.00 $125,000.00 $4.20 $17,253.60 $7,500.00 $135,000.00 $11,500.00 $34,500.00 $350.00 $109,200.00 $310.00 $147,250.00 $150.00 $3,150.00 $950.00 $6,650.00 $125.00 $44,500.00 $65.00 $2,600.00 $85.00 $1,700.00 $145.00 $2,900.00 $2,745,084.60 $7,200.00 $449,013.07 $2,288,871.53 (d) In the event no funds or insufficient funds are appropriated and budgeted or are otherwise unavailable by any means whatsoever in any fiscal period for payments due under this Agreement, then the City will immediately notify Developer of such occurrence and this Agreement shall be terminated on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except to the portions of annual payments herein agreed upon for which funds shall have been appropriated. (e) Substantial completion of the Improvements shall occur after Developer's Contractors notify the City that the Improvements are constructed and ready for their intended use, the City and Developer's Contractor inspect the Improvements, and the City concurs that the Improvements are substantially complete. This Agreement does not provide for any retainage to be withheld from the City Participation. [REMAINDER OF PAGE INTENTIONALLY BLANK] City of Fort Worth, Texas Page 14 of 18 Standard Community Facilities Agreement with City Participation Rev. 4/2/20 38. Cost Summary Sheet Project Name: Morningstar Westpoint Parkway Offsite Sanitary Sewer CFA No. 23-0142 Ite ms A. Water and Sewer Construction 1. Water Construction 2. Sewer Construction Water and Sewer Construction Total B. TPW Construction 1. Street 2. Storm Drain 3. Street Lights Installed by Developer 4. Signals TPW Construction Cost Total IPRC No. 23-0151 City Project No.105124 Developer's Cost City's Cost Total Cost Total Construction Cost (excluding the fees): Estimated Construction Fees: C. Construction Inspection Service Fee D. Administrative Material Testing Service Fee E. Material Testing Cost E. Water Testing Lab Fee Total Estimated Construction Fees: TOTAL PROJECT COST Financial Guarantee Options, choose one Bond = 100% Escrow Pledqe Agreement = 125% Cash Escrow Water/Sanitary Sewer= 125% Cash Escrow Pavinq/Storm Drain = 125% Letter of Credit = 125% City of Fort Worth, Texas Standard Community Facilities Agreement with City Participation Rev. 4/2/20 $ 456,213.07 $ 2,288,871.53 $ 2,745,084.60 $ 456,213.07 $ 2,288,871.53 $ 2,745,084.60 $ 456,213.07 $ 2,288,871.53 $ 2,745,084.60 $ 9,249.60 $ 47,150.40 $ 56,400.00 $ 723.24 $ 3,686.76 $ 4,410.00 $ - $ 45,777.43 $ 45,777.43 $ 9,972.84 $ 96,614.59 $ 106,587.43 $ 466,185.91 $ 2,385,486.12 $ 2,851,672.03 Choice Amount (Mark one $ 456,213.07 $ 570,266.34 X $ 570,266.34 $ 570,266.34 Page 15 of 18 IN WITNESS WHEREOF, the City and Developer have each executed this Agreement by their duly authorized signatories to be effective on the date executed by the City's Assistant City Manager. CITY OF FORT WORTH TJ 8 e 6C Dana Burghdoff (May ,2024 CDT) Dana Burghdoff Assistant City Manager Date: May 3, 2024 Recommended by: Q -AZ Dwayne Hollars (May 3, 202414:15 CDT) Dwayne Hollars Contract Compliance Specialist Development Services Department Approved as to Form & Legality: Richard McCracken (May 3, 202414:29 CDT) Richard A. McCracken Sr. Assistant City Attorney M&C No. 24-0362 Date: 4/23/2024 Form 1295: 2024-1135995 ATTEST: Jannette Goodall City Secretary DEVELOPER FG ALEDO DEVELOPMENT, LLC By: KTFW INVESTMENTS, INC., a Texas corporation, its manager Kim gill (May 3, 202412:34 CDT) Kim Gill President Date: May 3, 2024 Contract Compliance Manager: By signing, I acknowledge that I am the person responsible for the monitoring and 44400an�� administration of this contract, including *Oft. ensuring all performance and reporting requirements. Pv0 o=d P�Q* %o *� 0 loan nEXA?o4p Rebecca Owen (May 3, 2024 14:17 CDT) Rebecca Diane Owen Development Manager OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX City of Fort Worth, Texas Page 16 of 18 Standard Community Facilities Agreement with City Participation Rev. 4/2/20 The following attachments are incorporated into this Agreement. To the extent a conflict exists between the main body of this Agreement and the following attachments, the language in the main body of this Agreement shall be controlling. Included Attachment © Attachment 1 - Changes to Standard Community Facilities Agreement ❑ Attachment 2 — Phased CFA Provisions ❑ Attachment 3 — Concurrent CFA Provisions © Location Map ❑ Exhibit A: Water Improvements ® Exhibit A-1: Sewer Improvements ❑ Exhibit B: Paving Improvements ❑ Exhibit B-1: Storm Drain Improvements ❑ Exhibit C: Street Lights and Signs Improvements ® Cost Estimates (Remainder of Page Intentionally Left Blank) City of Fort Worth, Texas Page 17 of 18 Standard Community Facilities Agreement with City Participation Rev. 4/2/20 ATTACHMENT "I" Changes to Standard Community Facilities Agreement City Project No. 105124 None City of Fort Worth, Texas Page 18 of 18 Standard Community Facilities Agreement with City Participation Rev. 4/2/20 H A U X CL M N M (U 0 (U n (U ON m 3 w 3 w V) w V) I Ll Ll 0 J I Q L� U w 3 w V) Cemetery. rT JT UN10 PROJECT LOCATION J 1 UNION PACIFIC R.R. MAPSCO NO. 710—Z LOCATION MAP MORNINGSTAR WESTPOINT BOULEVARD AND N. INDIGO SKY DRIVE OWNER /DEVELOPER: FG ALEDO DEVELOPMENT, LLC 3045 LACKLAND BOULEVARD FORT WORTH, TEXAS 76116 IPRC NO. 23-0151 CITY PROJECT NO. FID NO. STREET/STORM DRAIN NO. x- ENGINEER: WELCH ENGINEERING, INC. 1308 NORWOOD DRIVE, SUITE 200 BEDFORD, TEXAS 76022 M N O N N O� _---_-_-_---- _1� i PROP 24"SSj _ _ ./- I ATCH LIN�_, - SHEET 2 OF \ PROP 24"SS \ �\ \ \ 1 I I � \ PROP 10"SI I PROP 24"SS� I I I / \ I I \ \ i `PROP 24"n > I I X >O SS� PROP 8"SS-� I I NN I I I I PROP 24"53 �\ I EX 12 SS LEGEND P 8"SS "SS 2 SCALE: 1 "=300' 100% DEVELOPER'S COST 8", 10", 12", 18" AND 24" SANITARY SEWER LINES AND ASSOCIATED APPURTENANCES EXHIBIT "A-1 " IPRC NO. 22-0221 SANITARY SEWER IMPROVEMENTS CITY PROJECT NO. 104118 FID NO. 30114-0200431-104118-EO7685 M ORN I N GSTAR STREET/STORM DRAIN NO. K-3046 WESTPOINT BOULEVARD AND X-27609 N. INDIGO SKY DRIVE OWNER /DEVELOPER: ENGINEER: FG ALEDO DEVELOPMENT, LLC '*7Z WELCH ENGINEERING, INC. 3045 LACKLAND BOULEVARD 1308 NORWOOD DRIVE, SUITE 200 FORT WORTH, TEXAS 76116 BEDFORD, TEXAS 76022 SHEET 1 OF 2 1- M (U O 3 Li V) I Ll Ll 0 1 0 I Q LL U w 3 w V) / T � I I PROP/ 12 SS / PROP 12"SS / // / NOc, /^ j P5OP 1o"ss ANT JI I - \� SCALE: 1"=300' PROP 12"8S PROP 18"SS PROP 6' SS I -----------J L--------------- ' r PROP 24"SS PROP 24"ss�--- — �` /J ----- PROP 24"SS .. PROP 24"SS�� \\� MATCH LINE - SHEEfi \ 1 OF 2 11L------ —1 x 10"155 GLADSTONE DRIVE Ex o s PROP za"ss LEGEND 100% DEVELOPER'S COST 6", 8", 10", 12", 18" AND 24" SANITARY SEWER LINES AND ASSOCIATED APPURTENANCES EXHIBIT "A-1 " IPRC NO. 23-0151 SANITARY SEWER IMPROVEMENTS CITY PROJECT NO. FID NO. M ORN I N GSTAR STREET/STORM DRAIN NO. WESTPOINT BOULEVARD AND X- N. INDIGO SKY DRIVE OWNER /DEVELOPER: ENGINEER: FG ALEDO DEVELOPMENT, LLC WELCH ENGINEERING, INC. 3045 LACKLAND BOULEVARD 1308 NORWOOD DRIVE, SUITE 200 FORT WORTH, TEXAS 76116 BEDFORD, TEXAS 76022 SHEET 2 OF 2 00 42 43 DAP - BID PROPOSAL Page I of 2 SECTION 00 42 43 Developer Awarded Projects - PROPOSAL FORM UNIT PRICE BID Bidder's Application Project Item Information Bidders Proposal Bidlist Description I I Specification I Unit of I Bid Unit Price Bid Value Item No. Section No. Measure Quantity UNIT II: SANITARY SEWER IMPROV ;JUENTS 1 3331.4309 24" HDPE DR-17 DIPS Pipe 33 41 10, 33 31 LF 3,306 $375.00 $1,239,750.00 13, 33 05 10 2 3305.0202 Imported Embedment/Backfill, CSS 3305 10 CY 50 $125.00 $6,250.00 3 3305.0203 Imported Embedment/Backfill, CLSM (D201 1301) 3305 10 CY 2,400 $135.00 $324,000.00 4 3305.0116 Concrete Encasement for Utility Pipes 3305 10 CY 56 $75.00 $4,200.00 5 3331.4323 24" DIP Sewer Pipe 33 11 10 LF 762 $425.00 $323,850.00 6 9999.0207 Epoxy Coating 3305 10 LF 404 $310.00 $125,240.00 7 3305.1007 42" Casing by Open Cut 33 05 22 LF 155 $425.00 $65,875.00 8 3305.0109 Trench Safety 3305 10 LF 4,108 $2.00 $8,216.00 9 9999.0210 Wagner No. 2050-200 Oder Control (See Sheet 16) 33 39 60 EA 1 $18,000.00 $18,000.00 10 9999.0211 Wagner No. 2050450 Order Control (See Sheet 16) 33 39 60 EA 4 $31,250.00 $125,000.00 11 3301.0002 Post -CCTV Inspection 330131 LF 4,108 $4.20 $17,253.60 12 3339.1101 5' Manhole (0-6' Depth) 33 39 20 EA 18 $7,500.00 $135,000.00 13 3339.1102 5' Drop Manhole (0-6' Depth) 33 39 20 EA 3 $11,500.00 $34,500.00 14 3339,1103 5' Extra Depth Manhole 33 39 20 VF 312 $350.00 $109,200.00 15 3339.0001 Epoxy Manhole Coating (24" Manholes Only) 33 39 60 VF 475 $310.00 $147,250.00 16 3301.0101 Manhole Vacuum Testing 3301 30 EA 21 $150.00 $3,150.00 17 3305.0113 Trench Water Stops 33 11 10 EA 7 $950.00 $6,650.00 18 3137.0102 Twisted Gabion Baskets 31 3700 SY 356 $125.00 $44,500.00 19 3331.4115 8" Sewer Pipe 33 11 10,3331 LF 40 $65.00 $2,600.00 12.333120 20 3331.4208 12" Sewer Pipe 31 11 10, 33 31 LF 20 $85.00 $1,700.00 12.333120 21 3331.4225 18" Sewer Pipe 32 11 10, 33 31 LF 20 $145.00 $2,900.00 12.333120 TOTAL UNIT II: SANITARY SEWER IMPROVEMENTS, $2,745,084.60 Bid Summary IUNIT II: SANITARY SEWER IMPROVEMENTS $2,745,084.60 Total Construction Bid $2,745,084.60 This Bid is submitted by the entity named below: BIDDER: D.T. Utility Contractors Inc. 2614 Causbie Rd. Weatherford TX 76087 Contractor agrees to complete WORK for FINAL ACCEPTANCE within CONTRACT commences to run as provided in the General Conditions. BY: Colton Tollett TITLE: Vice President DATE: 2/27/2024 150 working days after the date when the CITY OF FORT WORTH STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS - DEVELOPER AWARDED PROJECTS Form Version May 22, 2019 Morningstar - Westpoint 24" Sanitary Sewer Line City Project No 105124 Bid Proposal Workbook 02052024 (1) ESCROW AGREEMENT THIS ESCROW AGREEMENT (the "Agreement"), is made and entered into by and between FG Aledo Development, LLC ("Developer"), the City of Fort Worth, a Texas home -rule municipal corporation ("Fort Worth") and PlainsCapital Bank, a Texas state bank ("Escrow Agent") is to witness the following: WHEREAS, Developer and Fort Worth have entered into a Community Facilities Agreement for Morningstar Westpoint Parkway Offsite Sanitary Sewer, CFA Number 23-0142, City Project Number 105124, IPRC Number 23-0151 (the "CFA"); and WHEREAS, the CFA provides that Developer shall submit to Fort Worth performance bonds, cash deposits or other financial security acceptable to Fort Worth (collectively, the "Financial Security") for the purpose of guaranteeing satisfactory compliance by Developer with all requirements, terms, and conditions of the CFA (the "CFA Obligations"); and WHEREAS, Developer and Fort Worth desire and agree that Developer be allowed to escrow and pledge cash deposits to Fort Worth, to be held by Escrow Agent, as an escrow agent, in complete satisfaction of the obligation to submit the Financial Security to secure the performance of the CFA Obligations. NOW THEREFORE, for and in consideration of these recitals, ten dollars ($10.00) and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows: SECTION 1. DEFINED TERMS. For the purposes of this Agreement, unless the context otherwise clearly requires, the following terms shall have the following meanings: "Security Funds" shall mean the cash deposit of Five Hundred Seventy Thousand Two Hundred Sixty -Six Dollars and Thirty -Four Cents ($570,266.34), which sum represents one hundred twenty-five percent (125%) of the estimated Developer's cost of constructing the CFA Obligations (the "Estimated Developer's Cost"). "Lien" shall mean any lien, security interest, charge, tax lien, pledge or encumbrance designed to secure the repayment of indebtedness or the satisfaction of any other obligation to a third party not a party of this Agreement. SECTION 2. SECURITY FUNDS. As financial security for the full and punctual performance of the CFA Obligations, Developer hereby pledges, assigns, and transfers to Fort Worth, and hereby grants to Fort Worth a security interest in the Security Funds and all rights and privileges pertaining thereto with the exception of the interest income to be derived therefrom (which interest income shall remain the City of Fort Worth, Texas Escrow Pledge Agreement CFA Official Release Date: 11.01.2022 DH Page 1 of 8 Revised 11.16.2022 DH property of Developer and shall be distributed by Escrow Agent in accordance with Developer's periodic instructions) subject, however, to the terms, covenants, and conditions hereinafter set forth. The security interest granted and the assignments made hereunder are made as security only and shall not subject the City of Fort Worth or Escrow Agent to, or transfer or in any way affect or modify, any obligation of Developer with respect to the CFA Obligations or any transaction involving or giving rise therefrom. SECTION 3. PHYSICAL POSSESSION OF SECURITY FUNDS. Concurrently with the execution of this Agreement, Developer shall have delivered to and deposited with Escrow Agent the Security Funds. The parties acknowledge and agree that Escrow Agent shall be required to segregate the Security Funds from other funds held by Escrow Agent for Developer in accordance with the normal practices of Escrow Agent acting as an escrow agent. Escrow Agent shall return all funds on deposit representing or evidencing the Security Funds remaining in its possession to Developer (or take such other action as Developer may request or direct) immediately after receipt of written notice from Fort Worth that the CFA Obligations have been fully performed. During such time as Escrow Agent has possession of the Security Funds, Escrow Agent shall furnish to the City of Fort Worth (when requested by Fort Worth) written acknowledgments signed by an officer of Escrow Agent detailing the amount of the Security Funds. Fort Worth's rights in the Security Funds shall be superior to those of Escrow Agent's notwithstanding any terms or understandings (written or otherwise) between Developer and Escrow Agent. SECTION 4. COVENANTS. (a) Affirmative Covenants. So long as any of the CFA Obligations remain unperformed, Developer covenants and agrees that Developer will: (i) from time to time execute and deliver to Fort Worth all such assignments, certificates, supplemental writings, and other items and do all other acts or things as Fort Worth may reasonably request in order to evidence and perfect the security interest of Fort Worth in the Security Funds; (ii) furnish Fort Worth with information which Fort Worth may reasonably request concerning the Security Funds; (iii) notify Fort Worth of any claim, action, or proceeding affecting title to the Security Funds or Fort Worth's security interest(s) therein; and (iv) adjust the Security Funds to an amount equal to the actual contract price, including revisions thereto, if the original Security Funds were based on an engineer's estimate of costs. (b) Negative Covenants. So long as any of the CFA Obligations remain unperformed, Developer covenants and agrees that Developer will not: City of Fort Worth, Texas Escrow Pledge Agreement CFA Official Release Date: 11.01.2022 DH Page 2 of 8 Revised 11.16.2022 DH (i) assign or transfer any rights of Developer in the Security Funds; or (ii) create any Lien in the Security Funds, or any part thereof, or permit the same to be or become subject to any Lien except the security interest herein created in favor of Fort Worth. SECTION 5. EVENTS OF DEFAULT. Developer shall be in default under this Agreement only upon the happening of any of the following events (a "Default"): (a) default in the timely payment for or performance of the CFA Obligations after written notice thereof has been given to Developer and Escrow Agent and such default is not cured within seven (7) days after such notice; (b) any affirmative or negative covenant is breached by Developer. SECTION 6. RIGHTS AND REMEDIES OF FORT WORTH UPON AND AFTER DEFAULT. (a) Remedy. Upon the occurrence of a Default, Fort Worth shall have the right to direct Escrow Agent to transfer to Fort Worth all of the Security Funds. Escrow Agent is hereby authorized to transfer the Security Funds immediately upon the receipt of a written statement purporting to be executed by an authorized representative of Fort Worth stating that: (i) a Default by Developer has occurred related to the CFA Obligations; (ii) written notice of such Default has been given by Fort Worth to Developer and Escrow Agent and such Default was not cured within seven (7) days after delivery of such notice; and (iii) Fort Worth is entitled to have the Security Funds transferred in accordance with the Agreement. (b) Notices. Any notice required or permitted to be given to any party hereto shall be given in writing, shall be personally delivered or mailed by prepaid certified or registered mail to such party at the address set forth below, and shall be effective when actually received. To Developer: FG ALEDO DEVELOPMENT, LLC 3045 Lackland Road Fort Worth, Texas 76116 City of Fort Worth, Texas Escrow Pledge Agreement CFA Official Release Date: 11.01.2022 DH Page 3 of 8 Revised 11.16.2022 DH To: Escrow Agent: PlainsCapital Bank Attn: Dakota Rawls 3707 Camp Bowie Blvd. Fort Worth, Texas 76107 To: City of Fort Worth City of Fort Worth Attn: City Treasurer 200 Texas Street Fort Worth, TX 76102 With a copy to: City of Fort Worth Attn: Contract Management Office 200 Texas Street Fort Worth, TX 76102 Any party may change its address for notice by giving all other parties hereto notice to such change in the manner set forth in this Section no later than ten (10) days before the effective date of such new address. SECTION 7. EXCLUSIVE RIGHTS AND REMEDIES. If the Developer fails to perform its obligations under the CFA, Fort Worth's sole and exclusive remedy shall be to complete the obligations of Developer at Developer's expense. 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, at any time and from time to time, to obtain releases of all or any part of the Security Funds (hereinafter called the "Released Collateral") upon satisfaction of the following conditions: (a) Developer shall provide Fort Worth and Escrow Agent written notice (the "Substitution Notice") that the Developer desires to obtain Released Collateral in exchange for a contemporaneous substitution of an alternate Financial Security acceptable to Fort Worth (as specified and described in the Substitution Notice); and (b) Developer shall pledge to, or obtain for the benefit of Fort Worth, and deliver to Fort Worth the alternate Financial Security acceptable to Fort Worth (the "Substituted Collateral") which Substituted Collateral shall in the aggregate be at least equal to the Estimated Developer's Cost; and City of Fort Worth, Texas Escrow Pledge Agreement CFA Official Release Date: 11.01.2022 DH Page 4 of 8 Revised 11.16.2022 DH (c) Said Substituted Collateral shall be of sufficient amount(s) to cover all work which has occurred prior to the substitution of collateral provided for in this Section. Upon satisfaction of the above -specified conditions, Escrow Agent shall be authorized (without the further consent of Fort Worth) to return to Developer the original Security Funds in Escrow Agent's possession that represent or evidence the Released Collateral or take such other action with respect to the Released Collateral as Developer may request or direct. Developer shall pay the expenses incurred by Escrow Agent In connection with obtaining each such release and substitution. SECTION 9 REDUCTIONS IN SECURITY FUNDS. (a) Notwithstanding any contrary provision in this Agreement, Developer shall have the right to reductions in the Security Funds (hereinafter called a "Reduction in the Security Funds"), in accordance with this Section 9. (b) Every thirty (30) days, Developer may request a reduction in the Security Funds in accordance with Section 9-310.1 of the CFA Ordinance. (c) Developer shall provide the City of Fort Worth and Escrow Agent with written notice (the "Withdrawal Notice") that Developer desires to obtain a Reduction in the Security Funds in any amount less than or equal to the then -completed CFA Obligations as inspected or accepted by Fort Worth. (d) A Reduction in the Security Funds may only be made after: i. Fort Worth 's inspectors have verified the amount of the Community Facilities that have been constructed in accordance with the engineering plans; and ii. Fort Worth has received an affidavit and release of lien executed by the contractor indicating that the contractor has been paid by Developer and the contractor has paid all subcontractors and material suppliers for the Community Facilities that have been constructed pursuant to the CFA. (e) After Fort Worth has confirmed the amount of the Community Facilities that have been constructed in accordance with the engineering plans and Fort Worth has received an affidavit and release of lien from the contractor for the Community Facilities that have been constructed, then the Security Funds may be reduced to an amount that is no less than one hundred twenty-five percent (125%) of the value of the Community Facilities that are remaining to be constructed. SECTION 10. NON -ASSIGNABILITY OF FORT WORTHS RIGHTS. City of Fort Worth, Texas Escrow Pledge Agreement CFA Official Release Date: 11.01.2022 DH Page 5 of 8 Revised 11.16.2022 DH The rights, powers, and interests held by Fort Worth hereunder in and to the Security Funds may not be transferred or assigned by Fort Worth in whole or in part. Any attempted transfer or assignment shall be absolutely void and shall entitle Developer to a release of all Security Funds. SECTION 11. NO WAIVER. No waiver by Fort Worth of any Default shall be deemed to be a waiver of any other subsequent Default. No delay or omission by Fort Worth in exercising any right or power hereunder shall impair any such right or power or be construed as a waiver thereof, nor shall any single or partial exercise of any such right or power preclude other or further exercise thereof. SECTION 12. BINDING EFFECT. This Agreement shall be binding on the parties, their successors and assigns. No provision of this Agreement may be amended, waived, or modified except pursuant to a written instrument executed by Fort Worth, Escrow Agent and Developer. SECTION 13. CHOICE OF LAW, VENUE This Agreement is to be construed and interpreted in accordance with the laws of the State of Texas. Venue shall be in the state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. SECTION 14. COUNTERPARTS. This Agreement may be executed in any number of multiple counterparts and by different parties on separate counterparts, all of which when taken together shall constitute one and the same agreement. SECTION 15. INDEMNITY. DEVELOPER HEREBY AGREES TO RELEASE, HOLD HARMLESS, AND INDEMNIFY ESCROW AGENT (AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES) FROM AND AGAINST ALL CLAIMS, DAMAGES, EXPENSES, COSTS, SUITS AND OTHER LIABILITY OF ANY HIND WHATSOEVER THAT ARISE OUT OF OR ARE DIRECTLY OR INDIRECTLY RELATED TO THE PERFORMANCE BY ESCROW AGENT OF ITS DUTIES HEREUNDER EXCEPT FOR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ESCROW AGENT OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES AND DEVELOPER HEREBY AGREES TO RELEASE, HOLD HARMLESS, AND INDEMNIFY FORT WORTH (AND ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES) FROM AND AGAINST ALL CLAIMS, DAMAGES, EXPENSES, COSTS, SUITS AND OTHER LIABILITY OF ANY HIND WHATSOEVER THAT ARISE City of Fort Worth, Texas Escrow Pledge Agreement CFA Official Release Date: 11.01.2022 DH Page 6 of 8 Revised 11.16.2022 DH OUT OF OR ARE DIRECTLY OR INDIRECTLY RELATED TO ANY ACTIONS OR INACTION BY FORT WORTH WITH RESPECT TO THIS AGREEMENT. SECTION 16. PAYMENT OF ESCROW FEES Developer will be responsible for the payment of all fees to Escrow Agent associated with this Agreement. ACCORDINGLY, the City of Fort Worth, Developer and Escrow Agent have each caused this instrument to be executed in each entity's respective name by its duly authorized signatories effective as of the date executed by the City Manager or his/her designee. CITY OF FORT WORTH 8aG Dana Burghdoff (May12024 CDT) Dana Burghdoff Assistant City Manager Date: May 3, 2024 Approved at to Form & Legality: �-- Richard McCracken (May 3, 2024 14:29 CDT) Richard A. McCracken Sr. Assistant City Attorney M&C No. N/A Form 1295: N/A ATTEST: Jannette Goodall City Secretary City of Fort Worth, Texas Escrow Pledge Agreement CFA Official Release Date: 11.01.2022 DH Page 7 of 8 DEVELOPER FG ALEDO DEVELOPMENT, LLC By: KTFW INVESTMENTS, INC., A Texas corporation, its manager Kim gill (May 3, 2024 12:34 CDT) Name: Kim Gill Title: President Date: May 3, 2024 ESCROW AGENT PLAINSCAPITAL BANK, a Texas state bank Name: Dakota Rawls Title: Vice President Date: May 3, 2024 Contract Compliance Manager By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. n Rebecca Owen (May 3, 2024 14:17 CDT) Rebecca Diane Owen Development Manager Revised 11.16.2022 DH ATTACHMENT "1" Changes to Standard Agreement None City of Fort Worth, Texas Escrow Pledge Agreement CFA Official Release Date: 11.01.2022 DH Page 8 of 8 Revised 11.16.2022 DH City of Fort Worth, Texas Mayor and Council Communication DATE: 04/23/24 M&C FILE NUMBER: M&C 24-0362 LOG NAME: 60MORNINGSTAR WESTPOINT 241NCH SEWER IMPROVEMENTS SUBJECT (MUD 1 and 2 Near CD 3) Authorize Execution of a Community Facilities Agreement with FG Aledo Development, LLC, with City Participation in the Amount Not to Exceed $2,385,486.12 for Oversizing 12-inch and 15-inch Sewer Mains to a 24-inch Sewer Main Along Westpoint Boulevard in the Morningstar Development, and Adopt Appropriation Ordinance to Effect a Portion of Water's Contribution to the Fiscal Years 2024- 2028 Capital Improvement Program RECOMMENDATION: It is recommended that the City Council: 1. Authorize the execution of a Community Facilities Agreement with FG Aledo Development LLC with City participation in an amount not to exceed $2,385,486.12 for oversizing 12-inch and 15-inch sewer mains to a 24-inch sewer main along Westpoint Boulevard in the Morningstar Development; and 2. Adopt the attached appropriation ordinance adjusting estimated receipts and appropriations in the Water & Sewer Bond 2020A Fund by increasing estimated receipts and appropriations in the Community Facilities Agreement Bucket programmable project (City Project No. P00001) in the amount of $2,843,261.00 and decreasing estimated receipts and appropriations in the Unspecified -All Funds project (City Project No. UNSPEC) by the same amount for the purpose of funding the Community Facilities Agreement — CFA MORNINGSTAR DEV OS SS project (City Project No.105124) and to effect a portion of Water's contribution to the Fiscal Years 2024-2028 Capital Improvements Program. DISCUSSION: FG Aledo Development, LLC (Developer) is constructing the Morningstar development project located east of Farmer Road 3325 and south of Westpoint Boulevard. The City is participating in the public sewer improvements to oversize 12-inch and 15-inch sewer mains to a 24-inch sewer main located along Westpoint Boulevard to create capacity for additional developments to the west of Morningstar development. The City will cost participate in the oversizing of 4,028 linear feet of the 24-inch sewer main, with the cost allocation estimated to be at 16.4% for the Developer and 83.6% for the City. The City's calculation for City participation is in accordance with the City's Community Facilities Agreement (CFA) unit price ordinance number 23657-05-2019. The Morningstar Westpoint 24-inch sanitary sewer line project is assigned City Project No. 105124 and Accela System Record IPRC23-0151. This project has been publicly bid. The City's cost participation in oversizing the sewer main is estimated to be in an amount not to exceed $2,385,486.12 as shown in the table below. Payments to the Developer are estimated to be $2,288,871.53 for construction costs and $45,777.43 for material testing. The City's cost participation also includes $50,837.16 to cover the City's portion of construction inspection service fees, and administrative material testing fees. An additional $457,774.31 in the contingency funds will cover the City's portion of any change orders. The following table shows the cost -sharing breakdown for the project between all parties: A. Public Improvements Unit 2- Sewer with City Participation Unit 2-Sewer without City Part. Total Construction Contingency B. Inspections & Testing Developer City Cost Total Cost Cost $449,013.07 $2,288,871.53 $2,737,884.60 $7,200.00 $0.00 $7,200,00 $456,213.07 $2,288,871.53 $2,745,084.601 $0.00 $457,774.31 $457,774.31 �11. Construction Inspection Fee $9,249.60 $47,150.40 $56,400.00 2. Admin Material Testing Fee $723.24 $3,686.76 $4,410.00 3. Material Testing Cost $0.00 $45,777.43 $45,777.43 �4. Water Lab Fee $0.00 $0.00 $0.00 Total Project Cost $466,185.91 $2,843,260.43 $3,309,446.34 *Numbers will be rounded up for accounting purposes. The reimbursement of the City participation, excluding inspection and material testing fees, is not a lump -sum amount and may be less than the stated amount depending upon the actual quantities and unit prices from the Notice of Final Completion package, commonly referred to as the Green Sheet package. It is the practice of the Water Department to appropriate its CIP plan throughout the Fiscal Year, instead of within the annual budget ordinance, as projects commence, additional funding needs are identified, and to comply with bond covenants. The actions in the Mayor & Council Communication (M&C) will appropriate funds in support of the Water Department's portion of the City of Fort Worth's Fiscal Years 2024-2028 Capital Improvements Program, as follows: 11 1il•191:40In[e1�r_1:aUTJ:&319611.MVZ11►[.1:IRIATA:11:alJl�:z•1►•��►a����y Capital Fund Name Project Name 56017 - Water & Sewer 105124 - CFA- MORNINGSTAR Bond 2020A DEV OS SS FY2024 CIP Authority Budget Change Revised FY2024 Appropriations (Increase/ Decrease) Budget $0.00 This M&C $2,843,261.00 $2,843,261.00 Funding is available in the Unspecified -All Funds project within the Water & Sewer Bond 2020A Fund for the purpose of funding the CFA- MORNINGSTAR DEV OS SS project. Funding for the Community Facilities Agreement (CFA) — MORNINGSTAR DEV OS SS project as depicted in the table below: FUND Existing Appropriations Additional Appropriations Project Total* Water & Sewer Bond 2020A - Fund 56017 $0.00 $2,843,261.00 $2,843,261.00 Project Total $0.00 $2,843,261.00 $2,843,261.00 *Numbers rounded for presentation purposes. BUSINESS EQUITY- The project is listed on the Development Services WAIVERS exception List in agreement between Development Services and Business Equity prior to the new ordinance. This project is located in Morningstar Ranch Municipal Utility Districts (MUD) No.1 and 2 near COUNCIL DISTRICT 3. FISCAL INFORMATION / CERTIFICATION: The Director of Finance certifies that funds are currently available in the Unspecified - All Funds project within the Water & Sewer Bond 2020A Fund and upon approval of the above recommendations and adoption of the attached appropriation ordinance, funds will be available in Water & Sewer Bond 2020A Fund for the CFA-MORNINGSTAR DEV OS SS project to support the approval of the above recommendations and execution of the agreement. Prior to an expenditure being incurred, the Water Department has the responsibility of verifying the availability of funds. Submitted for Citv Manaaer's Office bv: Fernando Costa 6122 Oriainatina Business Unit Head: Chris Harder 5020 Additional Information Contact: Suby Varughese 8009 Melissa Harris 8428 Sign In Home Legislation Calendar Details File #: Type: File created On agenda: Title: Attachments: Reports City Council Departments -.a RSS v Alerts M&C 24-0362 Version: 1 Name: Award of Contract Consent Status: Passed 4/17/2024 In control: CITY COUNCIL 4/23/2024 Final action: 4/23/2024 (MUD 1 and 2 Near CD 3) Authorize Execution of a Community Facilities Agreement with FG Aledo Development, LLC, with City Participation in the Amount Not to Exceed $2,385,486.12 for Oversizing 12-inch and 15-inch Sewer Mains to a 24-inch Sewer Main Along Westpoint Boulevard in the Morningstar Development, and Adopt Appropriation Ordinance to Effect a Portion of Water's Contribution to the Fiscal Years 2024-2028 Capital Improvement Program 1. M&C 24-0362, 2. Morningstar WestPointsewer (002),pdf 3. ORD.APP 60MORNINGSTAR WESTPOINT 24INCH SEWER IMPROVEMENTS 56017 AO24(r2)..pdf History (1) Text 1 record Group Export Date Ver. Action By Action 4/23/2024 1 CITY COUNCIL Approved Result Action Details Meeting Details Video Action details Meetina details Not available