Loading...
HomeMy WebLinkAboutContract 63992City of Fort Worth, Texas Page 1 of 19 Standard Community Facilities Agreement Rev. 9/21 Received Date: _______________ Received Time: _______________ Developer and Project Information Cover Sheet: Developer Company Name: HPIMF Bonds Land MF1 DFW005 LP Address, State, Zip Code: 901 S. Mopac Expressway, Bldg 3 Ste 220 Austin, Texas 78746 Phone & Email: 512-538-1034 | tim@hpitx.com Authorized Signatory, Title: Tim Shaughnessy, Manager Project Name: Bonds Ranch Multifamily Express CFA Brief Description: Water Project Location: Bonds Ranch Road & Blue Mound Road Plat Case Number: Plat Name: Council District: 4 Phased or Concurrent Provisions: None CFA Number: 25-0082 City Project Number:106126 | IPRC25-0020 City of Fort Worth, Texas Page 2 of 19 Standard Community Facilities Agreement Rev. 9/21 City Contract Number: _______________________ STANDARD COMMUNITY FACILITIES AGREEMENT This COMMUNITY FACILITIES AGREEMENT (“Agreement”) is made and entered into by and between the City of Fort Worth (“City”), a home-rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager, and HPIMF Bonds Land MF1 DFW005 LP (“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 Bonds Ranch Multifamily Express CFA (“Project”); and WHEREAS, Developer or its affiliate may contract for the sale of land to a party that will benefit from the Project (with its successors and assigns, “Purchaser”), which party may be substituted as the “Developer” in this Agreement in place of HPIMF Bonds Land MF1 DFW005 LP upon satisfaction of the conditions contained in Section 36, in which event “Developer” shall mean Purchaser; and WHEREAS, the City desires to ensure that all developments are adequately served by public infrastructure and that the public infrastructure is constructed according to City standards; and WHEREAS, as a condition of approval of the Project, Developer is required to bear a portion of the costs of municipal infrastructure by constructing the public infrastructure necessary for the Project as described in this Agreement (“Community Facilities” or “Improvements”); and WHEREAS, as a condition of approval of the Project, Developer is required to meet the additional obligations contained in this Agreement, and Developer may be required to make dedications of land, pay fees or construction costs, or meet other obligations that are not a part of this Agreement; and WHEREAS, the City is not participating in the cost of the Improvements or Project; and WHEREAS, the Developer and the City desire to enter into this Agreement in connection with the collective Improvements for the Project; NOW, THEREFORE, for and in consideration of the covenants and conditions contained herein, the City and the Developer do hereby agree as follows: 1. CFA Ordinance City of Fort Worth, Texas Page 3 of 19 Standard Community Facilities Agreement Rev. 9/21 The Community Facilities Agreements Ordinance, Chapter 9 of the City Code, Ordinance No. 23656-05-2019 (“CFA Ordinance”), as amended, is incorporated into this Agreement by reference, as if it was fully set out herein. Developer agrees to comply with all provisions of the CFA Ordinance in the performance of Developer’s duties and obligations pursuant to this Agreement and to cause all contractors hired by Developer to comply with the CFA Ordinance in connection with the work performed by the contractors. If a conflict exists between the terms and conditions of this Agreement and the CFA Ordinance, the CFA Ordinance shall control. 2. Incorporation of Engineering Plans The engineering plans for the Improvements that have been approved by the City (“Engineering Plans”) are incorporated into this Agreement by reference as if fully set out herein. Developer shall provide at its expense, unless otherwise agreed to by City, all engineering drawings and documents necessary to construct the Improvements required by this Agreement. 3. Description of Improvements; Exhibits and Attachments The following exhibits describe the general location, nature and extent of the Improvements that are the subject of this Agreement and are attached hereto and incorporated herein by reference: Exhibit A: Water Exhibit B: Sewer Exhibit C: Paving Exhibit D: Storm Drain Exhibit E: Street Lights & Signs Exhibit F: Traffic Signal & Striping The Location Map and Cost Estimates are also attached hereto and incorporated herein by reference. To the extent that Exhibits A, B, C, D, E, F, the Location Map, or the Cost Estimates conflict with the Engineering Plans, the Engineering Plans shall control. If applicable, Attachment 1 – Changes to Standard Community Facilities Agreement, Attachment 2 – Phased CFA Provisions, and Attachment 3 – Concurrent CFA Provisions, are attached hereto and incorporated herein for all purposes. 4. Construction of Improvements Developer agrees to cause the construction of the Improvements contemplated by this Agreement and that said construction shall be completed in a good and workmanlike manner and in accordance with all City standards and specifications, the Engineering Plans, the Cost Estimates provided for the Improvements, and this Agreement. Developer acknowledges that City will not accept the Improvements until the City receives affidavits and lien releases signed by Developer’s contractors verifying that the contractors, and all subcontractors and material suppliers, have been paid in full for constructing the Improvements, and consent of the surety on payment and performance bonds provided for the Improvements. 5. City of Fort Worth, Texas Page 4 of 19 Standard Community Facilities Agreement Rev. 9/21 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. (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 and Developer does not cure such breach or failure within twenty-one (21) days after it receives written notice thereof from the City. (c)If the Financial Guarantee is a Completion Agreement and the Developer’s contractors or suppliers are not paid for construction costs or materials supplied for the Improvements the contractors and suppliers may place a lien upon any property which the City does not have an ownership interest that is the subject of the Completion Agreement. (d)Nothing contained herein is intended to limit the Developer’s obligations under the CFA Ordinance, this Agreement, the Financial Guarantee, Developer’s agreements with Developer’s contractors, or other related agreements. 8. Termination If Developer desires to terminate this Agreement before Developer’s contractors begin constructing the Improvements, Developer agrees to the following: City of Fort Worth, Texas Page 5 of 19 Standard Community Facilities Agreement Rev. 9/21 (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’s contractors shall not begin construction of the Improvements until a pre-construction meeting has been held by Developer’s contractors with the City’s inspectors and a notice to proceed to construction has been issued by the City. Developer will require Developer’s contractors to allow construction of the Improvements to be subject to inspection at any and all times by the City’s inspectors. Developer will require Developer’s contractors to not install or relocate any sanitary sewer, storm drain, or water pipe unless a City inspector is present and gives consent to proceed, and to allow such laboratory tests as may be required by the City. (f) Developer will not allow Developer’s contractors to begin construction of the Improvements until a notice to proceed to construction is issued by the City. City of Fort Worth, Texas Page 6 of 19 Standard Community Facilities Agreement Rev. 9/21 (g) Developer will not allow Developer’s contractors to connect buildings to service lines of sewer and water mains constructed pursuant to this Agreement, if any, until said sewer, water mains and service lines have been completed to the satisfaction of the City. 10. Utilities Developer shall cause the installation or adjustment of utilities required to: (1) serve the Project; and (2) 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 ON ACCOUNT OF ANY INJURIES OR DAMAGES SUSTAINED BY ANY PERSONS, INCLUDING DEATH, OR TO ANY PROPERTY, RESULTING FROM OR IN CONNECTION WITH THE CONSTRUCTION, DESIGN, PERFORMANCE OR COMPLETION OF ANY WORK TO BE PERFORMED BY SAID DEVELOPER, ITS CONTRACTORS, SUBCONTRACTORS, OFFICERS, AGENTS OR EMPLOYEES, OR IN CONSEQUENCE OF ANY FAILURE TO PROPERLY SAFEGUARD THE WORK, OR ON ACCOUNT OF ANY ACT, INTENTIONAL OR OTHERWISE, NEGLECT OR MISCONDUCT OF SAID DEVELOPER, ITS CONTRACTORS, SUB-CONTRACTORS, OFFICERS, AGENTS OR EMPLOYEES, WHETHER OR NOT SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED, IN WHOLE OR IN PART, BY THE ALLEGED NEGLIGENCE OF THE CITY OF FORT WORTH, ITS OFFICERS, SERVANTS, OR EMPLOYEES. (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 IN ANY WAY CONNECTED WITH, THE CONSTRUCTION OF THE IMPROVEMENTS CONTEMPLATED HEREIN, WHETHER City of Fort Worth, Texas Page 7 of 19 Standard Community Facilities Agreement Rev. 9/21 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 ., provided that Developer shall have the exclusive right to enforce such contracts and warranties for the purpose of achieving the City’s acceptance of the Improvements. 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 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. Promptly upon completion of the construction of the Improvements, the City will reconcile the actual cost of administrative material testing service fees, construction inspection service fees, and water testing lab fees with the estimated fees paid by Developer. If the actual costs of the fees are more than the estimated payments made by the Developer, the Developer must pay the difference to the City before the Improvements will be accepted by the City. If the actual costs of the fees are less than the estimated payments made by the Developer, the City will refund the difference to the Developer. If the difference between the actual costs and the estimated payments made by the Developer is less than fifty dollars ($50.00), the City will not issue a refund and the Developer will not be responsible for paying the difference. The Financial Guarantee will be released by the City and returned to the Developer when reconciliation has been completed by the City and any fees owed to the City have been paid by the Developer. 15. Material Testing The City maintains a list of pre-approved material testing laboratories. The Developer must contract with material testing laboratories on the City’s list. Material testing laboratories will provide copies of all test results directly to the City and the Developer. If the Improvements being constructed fail a test, the Developer must correct or replace the Improvements until the Improvements pass all retests. The Developer must pay the material testing laboratories directly for all material testing and retesting. The City will obtain proof from the material testing laboratories that the material testing laboratories have been paid in full by the Developer before the City will accept the Improvements. 16. City of Fort Worth, Texas Page 8 of 19 Standard Community Facilities Agreement Rev. 9/21 Notices All notices required or permitted under this Agreement may be given to a party by hand- delivery or by mail, addressed to such party at the address stated below. Any notice so given shall be deemed to have been received when deposited in the United States mail so addressed with postage prepaid: CITY: DEVELOPER: Development Contract Management Office HPIMF Bonds Land MF1 DFW005 LP City of Fort Worth 901 S. Mopac Expressway, Bldg 3, Ste 220 100 Fort Worth Trail Austin, Texas 78746 Fort Worth, Texas 76102 With copies to: City Attorney's Office City of Fort Worth 100 Fort Worth Trail Fort Worth, Texas 76102 and City Manager’s Office City of Fort Worth 100 Fort Worth Trail Fort Worth, Texas 76102 Or to such other address one party may hereafter designate by notice in writing addressed and mailed or delivered to the other party hereto. 17. Right to Audit Developer agrees that, until the expiration of three (3) years after acceptance by the City of the Improvements constructed pursuant to this Agreement, that the City shall have access to and the right to examine any directly pertinent books, documents, papers and records of the Developer involving transactions relating to this Agreement. Developer agrees that the City shall have access during normal working hours to all necessary Developer facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give Developer reasonable advance notice of intended audits. Developer further agrees to include in all contracts with Developer’s contractors for the Improvements a provision to the effect that the contractor agrees that the City shall, until the expiration of three (3) years after final payment under the contract, have access to and the right to examine any directly pertinent books, documents, papers and records of such contractor, involving transactions to the contract, and further, that City shall have access during normal working hours to all of the contractor’s facilities, and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the City of Fort Worth, Texas Page 9 of 19 Standard Community Facilities Agreement Rev. 9/21 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. 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 City of Fort Worth, Texas Page 10 of 19 Standard Community Facilities Agreement Rev. 9/21 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 energy companies; and (2) will not boycott energy companies during the term of the contract. The terms “boycott energy company” and “company” have the meanings ascribed to those terms by Chapter 2276 of the Texas Government Code. 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 City of Fort Worth, Texas Page 11 of 19 Standard Community Facilities Agreement Rev. 9/21 Developer acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1, the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. The terms “discriminate,” “firearm entity” and “firearm trade association” have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Developer certifies that Developer’s signature provides written verification to the City that Developer: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. 28. Immigration and Nationality Act Developer shall verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by City, Developer shall provide City with copies of all I-9 forms and supporting eligibility documentation for each Developer employee who performs work under this Agreement. Developer shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Developer employee who is not legally eligible to perform such services. DEVELOPER SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY DEVELOPER, DEVELOPER’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. 29. Amendment No amendment, modification, or alteration of the terms of this Agreement shall be binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by the City and Developer. 30. Assignment and Successors Developer shall not assign or subcontract all or any part of its rights, privileges, or duties under this Agreement without the prior written consent of City. Any attempted assignment or subcontract without the City’s prior written approval shall be void and constitute a breach of this Agreement. Notwithstanding the foregoing, Developer may assign its rights and obligations under this Agreement to a financial institution or other lender for purposes of granting a security interest in Developer’s land or private improvements on Developer’s land without the consent of the City. If any such lender or financial institution succeeds to the interest of Developer with respect to the Developer’s land whether by foreclosure or conveyance in lieu thereof, then such lender or financial institution shall thereafter be entitled to exercise all of the rights of Developer under this Agreement and Developer shall have no further ability to exercise such rights. Unless otherwise agreed upon by the City, and the lender or financial institution, Developer shall remain obligated and liable under this Agreement in the event of a collateral assignment. City of Fort Worth, Texas Page 12 of 19 Standard Community Facilities Agreement Rev. 9/21 If a lender or financial institution exercises the right of Developer under this Agreement, such lender or financial institution shall provide written notice to the City in accordance with the provisions of this Agreement. The written notice shall be accompanied by the following documentation: i. Copies of the lender’s or financial institution’s construction contracts for the Project, evidence that lender’s or financial institution’s contractors are pre-qualified with the City to perform the work, and payment and performance bonds, maintenance bond and insurance certificates from lender's or financial institution’s contractors, or written proof of the assignment of HPIMF’s contracts for the Improvements including the payment and performance bonds, maintenance bond and insurance required of Developer pursuant to this Agreement or otherwise; and ii. Records showing: (A) the amount of the Improvements completed by HPIMF’s contractors; (B) the amount of Improvements remaining to be completed by lender or financial institution; (C) evidence of payments to HPIMF’s contractors for work completed under this Agreement and lien releases from HPIMF’s contractors for such payments; (D) itemization of all known outstanding claims for payment by HPIMF’s contractors for work completed under this Agreement; and (E) warranties and maintenance bonds for the Improvements constructed by HPIMF’s contractors; 31. No Third-Party Beneficiaries The provisions and conditions of this Agreement are solely for the benefit of the City and Developer, and any lawful assign or successor of Developer, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 32. Compliance with Laws, Ordinances, Rules and Regulations Developer, its officers, agents, servants, employees, and contractors, shall abide by and comply with all laws, federal, state and local, including all ordinances, rules and regulations of City. It is agreed and understood that, if City calls to the attention of Developer any such violation on the part of Developer or any of its officers, agents, servants, employees, or subcontractors, then Developer shall immediately desist from and correct such violation. 33. Signature Authority The person signing this Agreement on behalf of Developer warrants that he or she has the legal authority to execute this Agreement on behalf of the Developer, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The City is fully entitled City of Fort Worth, Texas Page 13 of 19 Standard Community Facilities Agreement Rev. 9/21 to rely on this warranty and representation in entering into this Agreement. 34. Counterparts This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but which together will constitute one instrument. 35. Entire Agreement This written instrument, together with any attachments, exhibits, and appendices, constitutes the entire understanding between the City and Developer concerning the work to be performed hereunder, and any prior or contemporaneous, oral or written agreement that purports to vary from the terms hereof shall be void. 36. Takeover Rights (a)Intent. This Section 36 sets out the conditions under which a Purchaser may be substituted as the “Developer” in this Agreement in place of HPIMF Bonds Land MF1 DFW005 LP (“HPIMF”). (b)Purpose. To the extent that this Section 36 is enforced, the Purchaser shall become a direct beneficiary of the work required to complete the Improvements as provided by that certain Development and Escrow Agreement or other agreement by and between HPIMF or its affiliate and Purchaser (the “DEA”). Pursuant to, and subject to, the DEA, Purchaser has certain rights to construct and complete the Improvements (whether or not HPIMF has breached this Agreement), as well as the right to cure any breach by HPIMF under this Agreement. (c)Takeover Rights Defined. Pursuant to the DEA, Purchaser shall have the right, but not the obligation: (i) to undertake HPIMF’s obligations to construct the Improvements; and (ii) if applicable, to cure any breach of HPIMF under this Agreement (the “Takeover Rights”). Breach of this Agreement by HPIMF is not necessarily a prerequisite to Purchaser’s right to undertake HPIMF’s obligations to construct the Improvements. Instead, such right is governed by the DEA. (d)Notice of Purchaser. If HPIMF contracts for the sale of the land to a Purchaser, HPIMF shall provide City with written notice of such contract for the sale of the land having been executed, the identity of the Purchaser, and the mailing address and telephone number of the Purchaser. (e)Notice of Default. City shall give Purchaser written notice of any default under this Agreement by HPIMF. (f)Notice of Election to Enforce Takeover Rights. In the event Purchaser elects, pursuant to the DEA, to undertake HPIMF’s obligations and to cure HPIMF’s breach under this Agreement (if a breach has occurred) or the DEA, Purchaser shall deliver written notice to the following address that Purchaser has exercised such right (the “Notice of Election”): City of Fort Worth, Texas Page 14 of 19 Standard Community Facilities Agreement Rev. 9/21 Development Services, Contract Management Office City of Fort Worth 100 Fort Worth Trail Fort Worth, Texas 76102 With copies to the following: City Attorney’s Office City of Fort Worth 100 Fort Worth Trail Fort Worth, Texas 76102 City Manager’s Office City of Fort Worth 100 Fort Worth Trail Fort Worth, Texas 76102 (g) Purchaser shall have no obligations pursuant to this Agreement unless Purchaser delivers the Notice of Election to the City. (h) Documentation Accompanying the Notice of Election. Purchaser shall attach to the Notice of Election delivered to the City the following documentation (“Takeover Documentation”): i. Copies of Purchaser’s construction contracts for the Project, evidence that Purchaser’s contractors are pre-qualified with the City to perform the work, and payment and performance bonds, maintenance bond and insurance certificates from Purchaser’s contractors, or written proof of the assignment of HPIMF’s contracts for the Improvements including the payment and performance bonds, maintenance bond and insurance required of Developer pursuant to this Agreement or otherwise; ii. Records showing: (A) the amount of the Improvements completed by HPIMF’s contractors; (B) the amount of Improvements remaining to be completed by Purchaser; (C) evidence of payments to HPIMF’s contractors for work completed under this Agreement and lien releases from HPIMF’s contractors for such payments; (D) itemization of all known outstanding claims for payment by HPIMF’s contractors for work completed under this Agreement; and (E) warranties and maintenance bonds for the Improvements constructed by HPIMF’s contractors; iii. Evidence of temporary construction access rights necessary for Purchaser to complete any portions of the Project located within HPIMF’s lands, as provided in the DEA; and iv. An amendment to this Agreement in a form reasonably approved by the City and signed by Purchaser and HPIMF, whereby HPIMF assigns to Purchaser, and Purchaser assumes, all of HPIMF’s rights and obligations under this Agreement to construct the remaining Improvements, subject to the terms and conditions of this Section 36. City of Fort Worth, Texas Page 15 of 19 Standard Community Facilities Agreement Rev. 9/21 (i) Acknowledgement of Takeover and Notice to Proceed. Within ten (10) business days of Purchaser delivering to the City the Notice of Election and the Takeover Documentation, the City shall inspect the Improvements and the Takeover Documentation and shall execute an acknowledgement that Purchaser has elected to take over this Agreement (the “Takeover Acknowledgement”), confirm the percentage completion of the Improvements at the time and remaining scope, and issue a notice to proceed with construction of the remaining Improvements (the “Notice to Proceed”). If the City finds that the Notice of Election or the Takeover Documentation is insufficient, the City shall notify Purchaser and shall execute the Takeover Acknowledgment and Notice to Proceed upon delivery to the City of sufficient documentation. The City shall not unreasonably withhold the Takeover Acknowledgement or the Notice to Proceed. (j)Upon execution of the Takeover Acknowledgement by the City, Purchaser shall: (i) be the "Developer" and assume the rights, duties and responsibilities of Developer contained in this Agreement (provided that HPIMF shall remain solely liable to City for all of its acts, omissions and defaults arising under this Agreement prior to the Notice of Election being given); (ii) have a reasonable time to cure any default by HPIMF, but in no event less than 30 days; (iii) be given credit for the payment of any fees HPIMF has paid in connection with this Agreement; and (iv) assume the rights, duties and responsibilities of Developer contained in that certain Escrow Agreement between HPIMF and City dated the same as this Agreement (which Escrow Agreement constitutes the Financial Guarantee hereunder). From and after execution of the Takeover Acknowledgement, the City may look to Purchaser for performance of Developer’s obligations pursuant to this Agreement, provided that HPIMF shall remain solely liable to City for all of its acts, omissions and defaults existing under this Agreement prior to the Takeover Acknowledgement being executed. Nothing herein shall be deemed to release HPIMF from any obligations to Purchaser or its successors or assigns under the DEA. (k)Estimated Fees Paid to City. HPIMF and Purchaser understand that the City will reconcile the estimated administrative material testing service fees, construction inspection service fees, and water lab testing fees paid to the City by HIPIMF with the actual costs incurred upon completion of construction of the Improvements. If Purchaser enforces the Takeover Rights, Purchaser will be responsible for paying to the City any shortages in the administrative material testing service fees, construction inspection service fees, and water lab testing fees, and Purchaser will receive from the City any overpayments of administrative material testing service fees, construction inspection service fees, and water lab testing fees that were paid by HPIMF for the Project. (l)Should Purchaser elect not to enforce its takeover rights to assume HPIMF’s obligations or to cure any breach by HPIMF of this Agreement, then the City shall have the right to use HPIMF’s financial guarantee in accordance with this Agreement and the financial guarantee. [REMAINDER OF PAGE INTENTIONALLY BLANK] City of Fort Worth, Texas Page 16 of 19 Standard Community Facilities Agreement Rev. 9/21 37. Cost Summary Sheet Project Name: Bonds Ranch Multifamily Express CFA CFA No.: 25-0082 City Project No.: 106126 IPRC No.: 25-0020 Items Developer's Cost A. Water and Sewer Construction 1. Water Construction 37,989.48$ 2. Sewer Construction -$ Water and Sewer Construction Total 37,989.48$ B. TPW Construction 1. Street -$ 2. Storm Drain -$ 3. Street Lights Installed by Developer -$ 4. Signals -$ TPW Construction Cost Total -$ Total Construction Cost (excluding the fees):37,989.48$ Estimated Construction Fees: C. Construction Inspection Service Fee $1,012.50 D. Administrative Material Testing Service Fee $275.60 E. Water Testing Lab Fee $67.50 Total Estimated Construction Fees:1,355.60$ Financial Guarantee Options, choose one Amount Choice (Mark one) Bond = 100%37,989.48$ Completion Agreement = 100% / Holds Plat 37,989.48$ Cash Escrow Water/Sanitary Sewer= 125%47,486.85$ Cash Escrow Paving/Storm Drain = 125%-$ Letter of Credit = 125% 47,486.85$ Escrow Pledge Agreement = 125% 47,486.85$ X City of Fort Worth, Texas Page 17 of 19 Standard Community Facilities Agreement Rev. 9/21 IN WITNESS WHEREOF, the City and Developer have each executed this Agreement by their duly authorized signatories to be effective on the date executed by the City’s Assistant City Manager. CITY OF FORT WORTH Jesica McEachern Assistant City Manager Date: __________________ Recommended by: Dwayne Hollars Sr. Contract Compliance Specialist Development Services Approved as to Form & Legality: Richard A. McCracken Sr. Assistant City Attorney M&C No. N/A Date: Form 1295: N/A ATTEST: Jannette S. Goodall City Secretary DEVELOPER HPIMF Bonds Land MF1 DFW005 LP By: HPIMF Bonds GP DFW010 LLC, its general partner Tim Shaughnessy Manager Date: 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. Kandice Merrick Contract Manager City of Fort Worth, Texas Page 18 of 19 Standard Community Facilities Agreement Rev. 9/21 The following attachments are incorporated into this Agreement. To the extent a conflict exists between the main body of this Agreement and the following attachments, the language in the main body of this Agreement shall be controlling. Included Attachment 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 B: Sewer Improvements Exhibit C: Paving Improvements Exhibit D: Storm Drain Improvements Exhibit E: Street Lights and Signs Improvements Exhibit F: Traffic Signal and Striping Improvements Cost Estimates (Remainder of Page Intentionally Left Blank) City of Fort Worth, Texas Page 19 of 19 Standard Community Facilities Agreement Rev. 9/21 ATTACHMENT “1” Changes to Standard Community Facilities Agreement City Project No. 106126 Negotiated changes contained in the body of the Agreement. 4060 BRYANT IRVIN ROAD FORT WORTH, TX 76109 817.412.7155 MAPSCO NO. #F20-U COUNCIL DISTRICT NO. 4 LOCATION MAP COUNTY MAPSCO TARRANT F20-U OWNER / DEVELOPER: HPI - MULTIFAMILY TIM SHAUGHNESSY, PRESIDENT 3700 NORTH CAPITOL OF TEXAS HIGHWAY, STE 420 AUSTIN, TX 78746 BONDS RANCHMULTIFAMILY 9800 HILLWOOD PKWY, SUITE 250 FORT WORTH, TX 76177 817.562.3350 CPN: 106126 9800 HILLWOOD PKWY, SUITE 250 FORT WORTH, TX 76177 817.562.3350 EXHIBIT AWATER OWNER / DEVELOPER: HPI - MULTIFAMILY TIM SHAUGHNESSY, PRESIDENT 3700 NORTH CAPITOL OF TEXAS HIGHWAY, STE 420 AUSTIN, TX 78746 BONDS RANCHMULTIFAMILY CPN: 106126 OU 4? 43 �AP - F3LD PROPbSAL Pa�c i of I SEC7iON 00 42 43 �e�eloper Awarded Progects - PROPOSAL FORM UfVIT PRICE IBID Bidder's Applica�ion Project Item Information E3idde€'s Proposal Bidlisl ]fem Specificatian Unit of Bid No. l�escripsion Section No. Measure Quantity Unit Price Bid Value UNET I: WATER lfNPROVEMENTS 1 3312.0917 Connection to Existing 4"-12" Water Main 33 12 25 EA '{ $9,D21.70 $9,D21.70 _ __ ___ .----e----__ _._ _ __.____ _�_._ �___. ._____.__... __._ __�..__..___ ._.� 2 3312.2801 3" Water ENeier and Vault 3312 1'E w�� .__ .�.._ _..� _� __._ __.. __._ __�_._� $28,9fi7.77 $28,967.77 Bid Summary, UNIT I: WATER IMPRpVEMENTS Total Construction Bid Tliis Bid is submitted by the entity named below: SIDAGR: Provident Gcncrul Contractors iaz�a rr c�ntra� cxr�° r�.,i�,3�, ry �sz;�� Contractor agrecs to complete WpRK for FINAL ACC�PTAhCE within CONiM2ACT' commenccs to run as providcd in thc GenerAl Canditions. 13Y: rtr��: D�� �,� BATC: 4!]01Z025 $37 Z : warking da��s aftcr thc ctatc ���hcn tlke �nn o� s�cr�o�vr C1TY OF FORT �VqRTH STANDARD COtvSTRUCTION SPECIPICATIOI: DOCUM�NTS - bEVELOPER AIVARO�b PROIGC'F5 Fosm Vcrsion May 22. 2019 Copy of mRC.S :x.�_Watcr Bid Praposal.xls - I'aprcss CFA.xis City of Fort Worth, Texas Escrow Pledge Agreement CFA Official Release Date: 11.01.2022 DH Revised 11.16.2022 DH Page 1 of 10 ESCROW AGREEMENT THIS ESCROW AGREEMENT (the “Agreement”), is made and entered into by and between HPIMF Bonds Land MF1 DFW005 LP (“Developer”), the City of Fort Worth, a Texas home-rule municipal corporation (“Fort Worth”) and Heritage Title Company of Austin, Inc. (“Escrow Agent”) is to witness the following: WHEREAS, Developer and Fort Worth have entered into a Community Facilities Agreement for Bonds Ranch Multifamily Express CFA, CFA Number 25-0082, City Project Number 106126, IPRC Number 25-0020 (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; and WHEREAS, pursuant to the CFA, Developer or its affiliate may contract for the sale of land to a party that will benefit from the CFA (with its successors and assigns, “Purchaser”), which party may be substituted as the “Developer” upon satisfaction of the conditions contained in Section 36 of the CFA and amendment of the CFA to make Purchaser a party to the CFA, in which event “Developer” thereunder and hereunder shall mean Purchaser (the “Substitution Rights”). 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 Forty-Seven Thousand Four Hundred Eighty-Six Dollars and Eighty-Five Cents ($47,486.85), 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. City of Fort Worth, Texas Escrow Pledge Agreement CFA Official Release Date: 11.01.2022 DH Revised 11.16.2022 DH Page 2 of 10 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 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 City of Fort Worth, Texas Escrow Pledge Agreement CFA Official Release Date: 11.01.2022 DH Revised 11.16.2022 DH Page 3 of 10 (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: (i) assign or transfer any rights of Developer in the Security Funds other than pursuant to the Substitution Rights or to a permitted assignee or transferee of the CFA Obligations under the CFA; 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 or such longer cure period as may be provided in the CFA; (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 for which Purchaser exercises its Substitution Rights, Purchaser shall succeed to all of Developer’s rights with respect to the Security Funds, to be used by Purchaser in accordance with Section 9 to pay for completion of the CFA Obligations by Purchaser. Upon the occurrence of a Default for which Purchaser does not or is unable to exercise its Substitution Rights or that occurs after Purchaser has exercises its Substitution Rights, Fort Worth shall have the right to direct Escrow Agent to transfer to Fort Worth all of the Security Funds, to be used by Fort Worth to pay for completion of the CFA Obligations by Fort Worth. 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, Purchaser and Escrow Agent and such Default was not cured within seven (7) City of Fort Worth, Texas Escrow Pledge Agreement CFA Official Release Date: 11.01.2022 DH Revised 11.16.2022 DH Page 4 of 10 days after delivery of such notice or such longer cure period as may be provided in the CFA; 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: HPIMF Bonds Land MF1 DFW005 LP Attn: Tim Shaughnessy 901 S. Mopac Expressway, Bldg 3, Ste 220 Austin, Texas 78746 To: Escrow Agent: Heritage Title Company of Austin, Inc. Attn: Conner Turner 200 W. 6th Street, Suite 1600 Austin, Texas 78701 Email: cturner@heritage-title.com To: City of Fort Worth City of Fort Worth Attn: City Treasurer 100 Fort Worth Trail Fort Worth, TX 76102 With a copy to: City of Fort Worth Attn: Contract Management Office 100 Fort Worth Trail 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. City of Fort Worth, Texas Escrow Pledge Agreement CFA Official Release Date: 11.01.2022 DH Revised 11.16.2022 DH Page 5 of 10 Subject to the Substitution Rights of Purchaser, 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, using the Security Funds. 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 (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; and (d) Purchaser shall have consented to the substitution. 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 City of Fort Worth, Texas Escrow Pledge Agreement CFA Official Release Date: 11.01.2022 DH Revised 11.16.2022 DH Page 6 of 10 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, which will be completed by Fort Worth within thirty (30) days after request made by Developer to Fort Worth, with a copy thereof sent to Fort Worth’s Contract Management office via email at DEVCFA_Projects@fortworthtexas.gov; 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, through and including the prior payment. (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 through the prior payment, 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 WORTH’S RIGHTS. The rights, powers, and interests held by Fort Worth hereunder in and to the Security Funds may not be transferred or assigned by Fort Worth in whole or in part. Any attempted transfer or assignment shall be absolutely void and shall entitle Developer to a release of all Security Funds. SECTION 11. NO WAIVER. No waiver by Fort Worth of any Default shall be deemed to be a waiver of any other subsequent Default. No delay or omission by Fort Worth in exercising any right or power hereunder shall impair any such right or power or be construed as a waiver thereof, nor shall any single or partial exercise of any such right or power preclude other or further exercise thereof. SECTION 12.BINDING EFFECT. 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 City of Fort Worth, Texas Escrow Pledge Agreement CFA Official Release Date: 11.01.2022 DH Revised 11.16.2022 DH Page 7 of 10 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 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 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 KIND WHATSOEVER THAT ARISE OUT OF OR ARE DIRECTLY OR INDIRECTLY RELATED TO ANY ACTIONS OR INACTION BY FORT WORTH WITH RESPECT TO THIS AGREEMENT. SECTION 16. PAYMENT OF ESCROW FEES Developer will be responsible for the payment of all fees to Escrow Agent associated with this Agreement. SECTION 17. TAKEOVER RIGHTS Upon the occurrence of its exercise of the Substitution Rights, Purchaser shall automatically assume all of the rights, duties and responsibilities of HPIMF Bonds Land MF1 DFW005 LP (“HPIMF”) contained in this Agreement. From and after the exercise of the Substitution Rights, Purchaser shall have the rights of Developer to the Security Funds and the City may look to Purchaser for performance of Developer’s obligations under this Agreement, provided that HPIMF shall remain solely liable to City for all of its acts, omissions and defaults existing under this Agreement prior to the occurrence of the exercise of the Substitution Rights. SECTION 18. CONCERNING THE ESCROW AGENT City of Fort Worth, Texas Escrow Pledge Agreement CFA Official Release Date: 11.01.2022 DH Revised 11.16.2022 DH Page 8 of 10 The parties hereto agree that the following provisions shall control with respect to the rights, duties, liabilities, privileges and immunities of Escrow Agent: (a) Escrow Agent is not a party to, and is not bound by, or charged with notice of, any agreement out of which this escrow may arise, other than this Agreement. (b) Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatever for the sufficiency, correctness, genuineness or validity of the subject matter of the escrow or any part thereof, or for the form or execution thereof, or for the identity or authority of any person executing or depositing the same. (c) Escrow Agent shall be protected by Developer in acting upon any written notice, waiver, consent, certificate, receipt, authorization, power of attorney or other paper or document which Escrow Agent in good faith believes to be genuine and what it purports to be. (d) Escrow Agent may consult with legal counsel in the event of any dispute or question as to the construction of any of the provisions hereof or its duties hereunder. (e) In the event of any claims or demand upon Escrow Agent are made in connection with any provision of this Agreement, or in the event the Escrow Agent, in good faith, shall be in doubt as to what action it should take hereunder, Escrow Agent may, in its sole discretion, refuse to comply with any claims or demands on it, or refuse to take any other action hereunder, so long as such disagreement continues or such doubt exists, and in such event, the Escrow Agent shall not be or become liable in any way or to any person for its failure or refusal to act, and the Escrow Agent shall be entitled to continue to so refrain from acting until (i) the rights of all interested parties shall have been fully and finally adjudicated by a court of competent jurisdiction, or (ii) all differences shall have been adjusted and all doubt resolved by agreement among all of the interested parties and Escrow Agent shall have been notified thereof in writing signed by all such parties. Notwithstanding the foregoing, in the event Escrow Agent shall be in doubt as to what action it should take hereunder at any time during the term of this agreement, Escrow Agent shall have the right, in its sole and absolute discretion, to file an interpleader action in a District Court of Tarrant County, Texas, and interplead all documents and instruments held by it into the registry of said Court, and in such event, all costs, expenses and attorney's fees incurred by Escrow Agent in filing such interpleader action shall be paid by Developer or from the funds so interplead. The rights of Escrow Agent under this paragraph are cumulative to all other rights which it may have by law or otherwise. [REMAINDER OF THIS PAGE INTENTIONALLY BLANK] City of Fort Worth, Texas Escrow Pledge Agreement CFA Official Release Date: 11.01.2022 DH Revised 11.16.2022 DH Page 9 of 10 CITY OF FORT WORTH Jesica McEachern Assistant City Manager Date: Approved at to Form & Legality: Richard A. McCracken Sr. Assistant City Attorney Date: ATTEST: Jannette Goodall City Secretary DEVELOPER HPIMF Bonds Land MF1 DFW005 LP By: HPIMF Bonds GP DFW010 LLC, its general partner Name: Tim Shaughnessy Title: Manager Date: _________________ ESCROW AGENT Heritage Title Company of Austin, Inc. Name: Conner Turner Title: Vice President/Counsel Date: _________________ 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. Kandice Merrick Development Manager City of Fort Worth, Texas Escrow Pledge Agreement CFA Official Release Date: 11.01.2022 DH Revised 11.16.2022 DH Page 9 of 10 ATTACHMENT “1” Changes to Standard Agreement Negotiated changes contained in the body of the Agreement.