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HomeMy WebLinkAboutRES 23-186RESOLUTION NO. 23-186 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: WHEREAS, on December 12, 2022, Council approved an agreement with Garfield Public/Private LLC; and, WHEREAS, an amendment to the agreement is required to amend Section 1 (d) and Section 3 (a); WHEREAS, the addendum is substantially in the form attached hereto as Exhibit "A," and made a part hereof for all purposes; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the statements and findings set out in the preamble to this resolution are hereby, in all things, approved and adopted; and, THAT the City Manager be and he is hereby authorized to execute the addendum to the agreement with Garfield Public/Private LLC. The meeting at which this resolution was approved was in all things conducted in strict compliance with the Texas Open Meetings Act, Texas Government Code, Chapter 551. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 11th day of July, 2023. - Mayul muy VVC5l - ADDENDUM TO PROFESSIONAL SERVICES PRE -DEVELOPMENT AGREEMENT CONVENTION CENTER AND HEADQUARTERS HOTEL Beaumont, Texas The Professional Set -vices Agreement dated as of December 12, 2022, (the "Agreemenf') is hereby modified by this Addendum, dated as of the date of execution by the City, as follows: 1. Section 1 Pre -Development Scope of Services and Schedule (d) shall be amended to read: GPP will engage the services of an architect acceptable to the City ("Architect") to prepare a conceptual design package (including an initial conceptual mastetplan of the hotel/convention district area) to include a building program, site plan, floor plates, elevations, section drawings, renderings, with architectural and engineering narratives ("Conceptual Design") for the Project. This process will take approximately ninety (90) days beginning from the date of execution of this Addendum by the City and will include the following: a. Tour the site with the Architect; b. Investigate siting of the hotel; c. Coordinate the venue's connection to the park, public parking, and other amenities; d. Produce plans and exhibits for an open house/charette with GPP and the Architect; e. Conduct a public open house/charette with GPP and the Architect to present renderings of the hotel for public input and comment; f. Produce and collect a public survey regarding the project; g. Present an initial piaster plan for the hotel site to City Council. The Conceptual Design will include recommended key count, mix of guestrooms and suites, amount and configuration of ballroom and meeting space, pre -function area, back -of -house requirements, food and beverage outlets, parking, and recommended amenities, which may include a swimming pool and pool deck, fitness center, and business center, among other facilities and amenities. The process described in this Section 1(d) may also be referenced as the "Second Please" herein, the First Phase being the completed Market Study. If the City decides in its sole discretion that the results of the First and Second Phases are favorable, the City may issue to GPP a notice to proceed with the Third Phase (as defined in Section 1(h)). The date of such notice to proceed may be referenced as the "Please 3 Notice to Proceed Date" herein. GPP will contractually obligate the Architect to indemnify the City and GPP, as joint indemnitees, consistent with the provision of Chapter 130, Texas Civil Practices and Remedies Code, and Section 271.904, Texas Local Government Code, to maintain insurance (including errors and omission coverage) for the benefit of the City and GPP as additional insureds, in each case in form and substance not less than is customary for a City -operated design project with a similar scope. 2. Section 1 Pre -Development Scope of Services and Schedule (h) shall be amended to read: GPP will use its good faith best efforts to deliver its final report on the Project ("Final Report") to the City within one hundred twenty (120) days of the Phase 3 Notice to Proceed Date. The Final Report will consist of the Conceptual Design, the Preliminary Project Pricing, the Preliminary Project Schedule, the Preliminary Project Operating Pro Forma, and the Preliminary Capital Plan of Finance. Notwithstanding anything to the contrary in this Section 1(h), in the event that the Final Report has not been delivered to the City within one hundred twenty (120) days of the Phase 3 Notice to Proceed Date, the City will have the right to terminate this Agreement and GPP will provide to the City all information it has developed to date in support of the Final Report. This Section 1(h), together with Section 1(e), Section 1(f), and Section 1(g) may also be referenced as the "Third Phase" Herein, 3, Section 3 Costs (a) shall be amended to read: The City acknowledges that GPP will incur costs (including but not limited to those stated herein for the Second Phase and the Third Phase), as approved by the City, in connection with the services of the Architect, Contractor, and potentially other third -party consultants hereunder, subject to advance written approval of the City. The City will pay such costs in accordance with the City's normal contract payment procedures. GPP will be paid $40,000,00 for the Market Study. The estimated cost for the Second Phase, as outlined in Section 1(d), shall consist of a combined amount of $60,000.00 plus no more than $4,000.00 for travel expenses. The estimated cost for the Third Phase shall be $92,000.00, including the costs of the services of the Contractor described in Section 1 Pre - Development Scope of Services and Schedule (e), any costs for services rendered by the Architect not already performed in the Second Phase, along with the balance of any fees dire to GPP as contemplated in the Agreement. The City will have the right to access and copy any documents supporting the services provided by GPP, the Architect, Contractor, and third -party consultants pursuant to this Agreement. GPP will retain for review by the City, for a period of twenty-four (24) months following the termination of this Agreement, the financial records and reports regarding the work performed by GPP and the Architect, Contractor, and third -party consultants tinder this Agreement. All the aforesaid costs and fees will be included in the final budget for the Project, subject to approval by the City. 4, Section 4, Term; Termination (a) shall be amended to read: This Agreement will be effective as of the Effective Date and expire upon the earlier of the execution of the PSA or one hundred twenty (120) days from the Phase 3 Notice to Proceed Date. This Agreement may be terminated by either Party in its sole discretion and without cause, provided thatthe other Party is given not less than ten (10) calendar days' written notice of intern to terminate. In the event of a termination under this Section by City, City will pay GPP Fee compensation owed, if any, through the end of the month in which termination occurs plus expenses incurred, but not yet paid, through the date of such termination. 5. For avoidance of doubt, the Parties acknowledge and agree that: (a) the additional scope of a charette and survey as described in Section 1(d), as amended, adds an additional cost of $15,000 not anticipated in the original Agreement; $10,000 or the $15,000 is being charged in the Second Phase with the balance of $5,000 payable in the Third Phase. (b) the time required to perform the scope of services as amended herein (the Second and Third Phases) is approximately two hundred ten (210) days from the date of execution of this Addendum, which time may be amended by the mutual written consent of the Parties in accordance with Section 5 of the Agreenrent; (c) the aggregate cost of the services to be performed under the Agreement as amended by this Addendum (including the First, Second and Third Phases) is estimated at $192,000 plus reimbursable Expenses, including the $4,000 for travel expenses during the Second Please and other Expenses in accordance with Section 3(b) of the Agreement; (d) in accordance with the provisions of the Agreement, other costs may arise during the performance of the services contemplated by the Agreement and this Addendum due to the potential geed to engage third -patty consultants, in which case any such third -party services and the related costs must be approved in writing by the City on a case by case basis. Acknowledged and Agreed, GARFIELD PUBLIC/PRIVATE LLC A Texas limited liability company Title: Chief Development Officer City of Beaumont, Texas LIM Title: City Manager Date: Date: Beaumont Hotel - Phasing Plan Garfield Public/Private LLC Confidential Original Agreement Original agreement approval date: December 29, 2022 Revised Agreement Phase i - Market Study approval date; email from 12/29/2022 Phase 2 - Planning and Survey approval date: planned for 6/27/2023 Phase 3 Construction Pricing and Band Runs approval date: TRD APPROVAL OF PHASE 3 SETSTHE EFFECTIVE DATE FOR THE AGREEMENT Resvised Total Task ... I ... bsarkai:Siud9. , j ?:I,' +i a Ili 4000U A7cfiRect_ i Itl.;'. 1 ji ki k I,_lij 40000 C4#lfratlOf 1j€.?I j ,,-°.(IE RIB:; 25000 _ Paid $12,000/ mo. For first months Professional Fee Subtotal (not including reimbursable expenses 7200D 177003 Pigsfte#in6ursable E1rp�enses r 11?, I 3 i.il!I l _i'fx'otet h4arkat's irdy �; till i I1 'iP I Sit { f r d lx A complete 400on Pfnfessfonal Fee Subtotal {not including reimbursable expenses 40000 Plusi{elmbursablefiliNet#ses, it�,I +a€I' I, Task.l�l 1I�II_!EI )III �3, 3 � i I..N9te?f 1?ICI?. 19(Ill i_.t II]f14 '.41#.fill �„ye1ud, !tl}If ivlatlref 5ittdY 6 II;Itr Ir�� l,aigi4 i::i i complete ArF(tl..... rAS rl.�.I�.?, l l,, .=17 I_?intiia}work 25000 COglYacf6Y �] Ir:!fl , I i al' r I ° �'.•I!�not in this phase GPP t lai, ! 3 fill I j _]I:If ii�l ' �.=,'to he paid over first 2 months GPP -S4 vdY_and 4l arrett_„ 1_I jJ_lilf I I 1 _ �5�.; (new scope added) Professional Fee Subtotal (not Including reimbursable expenses 10000 60000 Pluc R_eimbUrsebie_E>ipenses____ };?!le �Il s � f Task__fll3lF s}-'I'IiIlIE�1£;EL E�i1[ji!lules ri3gl 1 olio%Illll�rl rill) f,i,VES4ee irllp., Markgf'$tudy � n I ?� S � 199`.I�i ! E I _il� [omPlete Arthlle[i- lrll ,4iir I IE i .ni I Ill -;,final work 15000 &4tr4[wr, 0111 iE: i',iii#41,. �..ti 1., l�f.l..,....�.`. 25000 AfM 1!.fi;l Ef =..[1 NIE fll I!I I' r._:i. to be paid over 3months 41000 GOY sui�ieYandeharj'c�!(deferYgffegl_._._Is Professional Fee sobtntal(not fncluding relnthursablo expenses) 500 .42090 PIu4 Raf_tnhlrnabla_Fxses""MUfli41!1ifliflik' Ta;k.- °� IIII ��.,..ICIIII 1, I li :Notes _ III Ij'-rltllrhl rl l�lirtl eValu Professional Fee Total Inot Including relmhurtable expenses 197000 Out Rkldihprsable;-xpenbes Confidential 6/24/2023 Page 1 PROFESSIONAL SERVICES PRE -DEVELOPMENT AGREEMENT CONVENTION CENTER AND HEADQUARTERS HOTEL Beaumont, Texas TkitPrrofessional Services Pre -Development Agreement ("Agreement") dated as of Yi1it' 2022 ("Effective Date"), isl entered into by and between the City of Beaumont, Texas ("City") and Garfield Public/Private L.L.C, a Texas limited liability company ("GPP"), in connection with the planning, design, financing, and construction of a hotel and convention center to serve the citizens, businesses and visitors of the City. Each of City and GPP may be referred to in this agreement as a "Party" or collectively as "Parties". RECITALS: WHEREAS, the City is considering the planning, design, financing, construction, commissioning, and operation of a nationally branded hotel and meeting space on a site in Beaumont, Texas (the "Project"). The size and boundarles of such site will be determined by the City at its option following the City's review of the Final Report (as defined below); and WHEREAS, the City desires that GPI' perform a strategic business plan that will include (i) a market study and business plan detailing the building program, conceptual design, estimated development cost, development schedule, and operating pro forma; (Ii) recommended brands)/flag(s), operator(s), and operating structure(s); (Ili) funding, financing, and ownership alternatives for the Project; and (Iv) such other services incidental to the foregoing as the Parties may reasonably approve. WHEREAS, GPP has agreed to perform such services, as more specifically detailed in this Agreement and is duly qualified and experienced to perform such services subject to Exhibit A; i AGREEMENT: NOW, THEREFORE, in consideration of the mutual promises set forth In this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the marries hereto agree as follows: Section 1. Pre -Development Scope of Services and Schedule. i (a) The "Pre -Development Period" is the time from the Effective Date to delivery of the Final Report described in Section 1(h). The City will provide to GPP any currently existing survey, studies, documents and agreements, plans and specifications, and other documents pertaining to the Project, within thirty (30) days of the Effective Date. © Garfield Public/Private LLC Professional Services Pre -Development Agreement Page 1 of 13 c (b) During the Pre -Development Period, the Parties will negotiate in good faith a Professional Services Agreement ("PSA") on terms and conditions mutually acceptable to the parties pursuant to which GPP will develop the Project. (c) GPP will conduct a Market Study to include an analysis of the competitive set of lodging properties and an estimated profit and loss statement forthe Project for its first 10 years of operations including underlying assumptions') of occupancy, average daily rates, operating revenue, operating expenses, and net operating income ("Preliminary Project Operating Pro -Forma"). The Market Study will include recommendations for hotel brands)/flag(s) and operator(s) for the Project. The Market Study will also include preliminary Project program recommendations, to include key count, mix ofguIestrooms and suites, amount and configuration of ballroom and meeting space, and othe'r facilities and amenities. These program recommendations will inform the Conceptual Design described in Section 1.(d) below. (d) GAP will engage the services of an architect acceptable to the City ("Architect") to prepare a conceptual design package (Including an initial conceptual masterplan of the hotel/convention district area) to include a building program, site plan, floor plans, elevations, section drawings, renderings, with architectural and engineering narratives ("Conceptual Design") for the Project. GPP will contractually obligate Architect to indemnify the City and GPP, as joint indemnitees, consistent with the provl�ions of Chapter 130, TEXAS CIVIL PRACTICES AND REMEmEs CODE, and Section 271.904, TEXAS LOCAL GOVERNMENT CODE, and to maintain insurance (including errors and omissions coverage) for the benefit of the City and GPP as additional Insureds, in each case in form and substance not I;ess than is customary for a Clty-operated design project with a similar scope. The Conceptual Design will include recommended key count and mix of guestrooms and suites, amount and configuration of ballroom and meeting space, pre -function area, back -of - house requirements, food and beverage outlets, parking, and other recommended amenities, which may include a swimming pool and pool deck, fitness center, and business center, among other facilities and amenities. (e) GPP will engage a general contractor or cost consultant acceptable to the City ("Contractor"), to prepare a preliminary estimate of the total construction costs for the Project based on the Conceptual Design, in sufficient detail to show construction costs, FF&E, OS&F, IT, soft costs and professional fees ("Preliminary Project Pricing"), and a Project development and construction schedule from completion of the) pre -development assessment period through Project opening ("Preliminary Project Schedule") with input as appropriate from the City, GPP and other team members. The form of construction contract will provide protections to the City that are not substantially less than the protectlons In the comparable documents typically used by the City for similar projects in terms of size, scope, and cost. U Garfield Public/Private LLC Professional Services Pre -Development Agreement page 2 of 13 (f) if required, and subject to City advance written approval, GPP will engage third - party consultants, acceptable to the City, to provide a geotechnical report and an environmental Phase 1 report, (g) GPP will prepare public/private financing alternatives for the Project identifying anticipated sources of debt and equity and the anticipated amount and structure of City participation to complete the Project capitalization ("Preliminary Capital Plan of Finance"). (h) GPP will use its good faith best i'fforts.to deliver its final report on the Project ("Final Report") to the City within two hundred and ten (21.0) days ofthe Effective Date. The Final Report will consist of the Conceptual Design, the Preliminary Project Pricing, the Preliminary Project Schedule, the Preliminary Project Operat€ng Pro Forma, and the Preliminary Capital Plan of Finance. Notwithstanding anything to the contrary in this Section 1.(h), in the event that the Final Report has not been delivered to the City within two hundred and seventy (270) days of the Effective Date, the City will have the right to terminate this Agreement and GPP will provide to the City all Information it has developed to date En support of the Final Report, (€) GPP will update the City on the status of its efforts relating to the Project on a monthly basis or more often if requested, The meetings may be held by conference call or In person. Section 2. Development of the Protect. (a) Upon delivery of the Final Report,sthe Parties will conclude the negotiations of the PSA. (b) If within 270 days after the Effective Date, the Parties are unable to negotiate a satisfactory PSA, then on the 27151 day after the effective Date, this Agreement will automatically terminate and be of no further force and effect and the City may formally end all negotiations with GPP. (c) Prior to the execution of the PSA) i the relationship between GPP and the City will be governed solely by the terms of this Agreement. i Section 3. Costs. I (a) The City acknowledges that GPP will incur costs, as approved by the City, in connection with the services of the Architect, Contractor and potentially other third -party consultants hereunder, subject to advance written approval of the City. The City will pay such costs in accordance with the City's normal contract payment procedures. GPP will be paid a fee of $1.2,000,00 per month during the first six (6) months of the term of this Agreement (in the aggregate $72,000.00) for its services. in the event the Final Report were to be delivered prior to the end of the first six (6) months of the Agreement, the unpaid balance of the aggregate GPP fee will become due and payable upon delivery of the Final Report. GPP will also be paid $40,000 for the Initial Market Study, including a site selection confirmation. The estimated costs of the ® Garfield Public/Private LLC Professional Services Pre -Development Agreement Page 3 of 13 Architect and Contractor are $65,000 ($40,000 for Architect and $25,000 for Contractor), subject to City approval. The Architect and Contractor fees are in addition to the GPP fee and the GPP initial Market Study. The City will have the right to access and copy any documents supporting the services provided by GPP, Architect, Contractor, and third -party -consultants pursuant to this Agreement. GPP w11[ retain for review by the City, for a period of twenty-four (24) months fallowing the termination of this Agreement, the financial records and reports regarding the work performed by GPP and the Architect, Contractor, and third -party consultants under this Agreement. All the aforesaid costs and fees willlbe included in the final budget for the Project, subject to approval by the City. (b) In addition to the cost and fee billings described in Section 3(a) above, GPP will invoice City monthly at cost for all reimbursable expenses GPP incurs in connection with its work, including third -party reproduction, data purchase, delivery services, and travel (if any) outside of the DFW Metroplex ("Expenses'), such Expenses -�o be supported by appropriate documentation. Travel expenses, if any will be subject to advance written approval of the City. (c) City will pay GPP's monthly invoices on for before thirty (30) calendar days from City's receipt of each such invoice, in accordance with state law. Section 4. Term; Termination. (a) This Agreement will be effectiveas of the Effective Date and expire upon the earlier of the execution of the PSA or 270 days from the Effective pate. The Parties further agree that this Agreement shall automatically terminate if the findings from the Market Study do not support the Project. The City will have final authority regarding whether the Market Study is viable. Moreover, this Agreement may be term€mated by either Party in its sole discretion and without cause, provided that the other Party is given not less than ten (10) calendar days' written notice of intent to terminate. In the event of a termination under this Section by City or an automatic termination as described herein, City will pay GPP fee compensation owed, if any, through the end of the month in which termination occurs plus Expenses incurred, but not yet paid, through the date of such termination. (b) The City may temporarily suspend this Agreement, at no additional cost to City, provided that GPP is given advance written notice of such temporary suspension. If City gives such notice of temporary suspension, GPP wIl[ immediately suspend its activities under this Agreement. Compensation owed by City to GP will be based upon the actual service time expended by GPP, plus Expenses incurred, but not yet paid, through the date the work is temporarily suspended. City will pay any amounts owed to GPP for work completed up to the date of the suspension of work within thirty( �days of the date the City receives an invoice for the amounts due. (c) Notwithstanding any provisions of this Agreement, GPP will not be relieved of liability to the City for damages sustained by the City by virtue of any breach of this Agreement by GPP, and the City may withhold any payments -due to GPP until such time as the exact amount of damages, If any, due the City from GPP Is determined. © Garfield Public/Private LLC Professional Services Pre -Development Agreement Page 4 of 13 (d) In the event of termination, GPP will be compensated as provided for in this Agreement. Upon termination, the City will be entitled to a[[ work and all other such materials as may have been prepared or accumulated to date by GPP in performing this Agreement, which are not GPP's privileged information, as defined by law, performed to that date in accordance with Section 7 of this Agreement, I Section S. Amendments, Changes, or Modifications. i Amendments, changes or modifications in the terms of this Agreement may be made at any time but only by mutual written agreemeti t between the Parties and will be signed by Individuals authorized to bind the Parties. ' Section 6. Extensions of Time. GPP may, for good cause, request extensions of time to perform the services required under this Agreement. Such extensions are subject to advance authorization by the City in its sole discretion in writing and will be incorporated in written amendments to this Agreement, in the manner provided in Section S. Section 7. Property of Clty. It Is agreed that the Parties intend this to lie an Agreement for services and each considers the products and results of the services included In the work to be. rendered by GPP under this Agreement to be a work made for hire. It is further mutually agreed that such products and results will become the property of the City once full payment for services is received by GPP, as provided in this Agreement. Immediately upon termination, the City will be entitled to, and the GPP will deliver to the City, the work and all other such materials as may have been prepared or accumulated to date by GPP in performing this Agreement, which are not GPP's privileged Information, as defined by law, along with any ither property belonging exclusively to the City which may be In GPP's possession. Section 8, Compliance with Public Information Act. GPP acknowledges that City Is a governmental entity subject to the Public Information Act, Chapter SS2, Texas Government Code (thy "Act"). The City will process all open records requests in accordance with the Act. GPP understands that the City may require GPP's full cooperation In Its response to any open records request. Section 9. Warranties and Responsibilities — GPP. (a) GPP agrees and represents that it is qualified to properly provide the services set forth herein in a manner which is consistent vdlth the generally accepted standards of GPP's profession. CO Garfield Public/Private LLC Professional Services Pre -Development Agreement Page 5 of 13 i (b) GPP agrees and represents that the work performed under this Agreement will be In accordance with applicable federal, state and loyal law in accordance with section 15(a) of this Agreement. (c) GPP will designate a project manager who at all times will represent GPP before the City on all matters relating to this Agreement. The project manager will continue in such capacity unless and until he or she is removed at the request of the City, is no longer•employed by GPP, or 1s replaced with the written approi al of the City, which approval will not be unreasonably withheld. Section 10. Subcontracting. None of the services covered by this Agreement will be subcontracted without the prior written consent of the City, which consent will not be unreasonably withheld. GPP will be fully responsible to the City far the negligent acts and omissions of its contractors and subcontractors, and of persons either directly or indirectly employed by them, as it is for the negligent acts and omissions of persons directly employed by GAP. Section 11. Assignability. GPP will not assign or transfer any interesit in this Agreement whether by assignment or novation, without the prior written consent of th6 City. Section 12. Liability. GPP will be responsible for performing the work under this Agreement In a manner consistent with the generally accepted standards of GPP's profession and will be liable for its own negligence and the negligent acts of its employees, agents, contractors and subcontractors. The City will not be charged with the responsibility of preventing risk to GPP or its employees, agents, contractors, or subcontractors. Approval by City oaf any service performed or product supplied by GPP hereunder shall not in any way relieve GPP'of responsibility for any technical accuracy or quality of GPP's work. The City's review, approval, acceptance of, or payment for any of GPP's goods or services shall not be construed to operite as a waiver of any of City's rights under this Agreement or of any cause of action by City against GPP arising from or related to GPP's performance or lack of performance under this Agreement. Section 13. INDEMNIFICATION OF THE! CITY. GPP SHALL INDEMNIFY, SAVE, AND 1-106 HARMLESS CITY, ITS OFFICIALS, OFFICERS, AGENTS, EMPLOYEES, BOARDS AND COMMISSIONS WITH RESPECT TO ANY CLAIMS OR DEMANDS, ACTIONS, DAMAGES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, ATTORNEY'S FEES AND COSTS OF LITIGATION, ARISING FROM THE DEATH OR INJURY OF ANY PERSON WHOMSOEVER, RESULTING DIRECTLY OR INDIRECTLY FROM ANY INTENTIONAL, NEGLIGENT OR GROSSLY NEGLIGENT ACT, ERROR OR OMISSION OF GPP, ITS AGENTS, © Garfield Public/Private LLC Professional Services Pre-Developmint Agreement page 6 of 13 } SERVANTS, EMPLOYEES OR OTHER PERSONS A6NG ON GPP'S BEHALF AND ARISING FROM OR RELATED TO GPP'S PERFORMANCE UNDER THIS AGREEMENT. Section 14. Insurance. GPP will at all times maintain or cause to be maintained such insurance as will protect GPP from any of the risks of liability imposed oni it by this Agreement. i Section 15. Additional Provisions. (a) GPP will keep itself fully informed of, will observe and comply with, and will cause any and all persons, firms or corporations employed by It or under its control to observe and comply with, applicable federal, state, county and municipal laws, ordinances, regulations, orders and decrees which In any manner affect those engaged or employed on the work described by this Agreement or the materials used or which In anylway affect the conduct of the work, (b) GPP will not engage in unlawful employment discrimination. Such unlawful employment discrimination includes, but is not limited to, employment discrimination based upon a person's race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, gender, citizenship, or sexual orientation. (c) GPP represents and warrants that neither it nor any of its members, managers, employees or officers has: (1) provided an Illegal gift or payoff to the City or any current or former officer, official, director, member, agent, representative or employee of the City, or his or her relative or business entity; or (2) retained any person to solicit or secure this contract upon an agreement or understanding for a commission, percentage, brokerage or contingent fee; (3) knowingly breached any of the ethical standards set forth in the City's conflict of interest ordinance; or (4) knowingly influenced, and hereby promises that it will not knowingly influence, a City officer, official, director, member, agent, representative ar employee or any former City officer, official, director, member, agent, representative or empil yee to breach any of the ethical standards set forth in the City's conflict of interest ordinance. (d) This Agreement constitutes the entire agreement between the Parties relative to the services specified in this Agreement and no modification of this Agreement will be effective unless and until such modification is evidenced by a writing signed by both Parties to this Agreement. There are no understandings, agreements, conditions, representations, warranties or promises, with respect to this Agreement, except those contained in or referred to in this agreement. (e) All notices that are required to be given by one Party to the other under this Agreement will be in writing and will be deemed to have been given if delivered personally or enclosed in a properly addressed envelope and deposited in a United States Post Office for delivery by registered or certified mail addressed to the Parties at the following addresses: O Garfield Public/Private LLC Professional Services Pre -Development Agreement Page 7 of 13 City: City of Beaumont Attn: City Manager Copyto: City of Beaumont Atin: City Attorney GPP: Gaeld Public/Private LLC Alm Steve Galbreath 14911 Quorum Drive, Suite 380 Dallas, Texas 75254 Copyto: Garfield Public/Private LLC Attn: Daniel K. Hennessy, Esq. 14'911 Quorum Drive, Suite 380 Dallas, Texas 75254 (f) Limited Waiver of Immunity. Notwithstanding anything to the contrary herein, the City and GPP hereby acknowledge and agree that to the extent this Agreement is subject to the provisions of Subchapter I of Chapter 271, TExAs,LocAL GOVERNMENT CDDE•, as amended, the City's immunity from suit is waived only as set forth in Subchapter I of Chapter 271, TEXAS LOCAL GOVERNMENT CODE. The City expressly authorizes the prevailing Party in any adjudication involving the City to recover its reasonable and necessary �ttorney's fees as referenced in Section 271.159 of the Texas Local Government Code, (g) Amendment and Waiver. A provision of; this Agreement may be amended or waived if such amendment or waiver is in writing and is approved by GPP and the City, No course of dealing on the part of GPP or the City, nor any failure or delay by GPP or the Citywith respect to exercising any right, power or privilege pursuant to this Agreement, will operate as a waiver thereof, except as otherwise provided herein. (h) Independent Parties. GPP enters Into this Agreement as an independent contractor and not as an employee of the City. GPP will have no power or authority by this Agreement to bind the City in any respect. Nothing in this Agreement will be Construed to be inconsistent with this relationship or status. All employees, agents, contractors or subcontractors hired or retained by GPP are employees, agents, contractors, or subcontractors of GPP and not of the City. The City will not be obligated in any way to pay any wage,claims or other claims made against GPP by any 0 Garfield Public/Private LLC Professional Services Pre -Development Agreement Page 8 of 13 i such employees, agents,, contractors, or subcoritractors, or any other person resulting from performance of this Agreement. M Severability. The provisions of this Agreement are severable. Should any provision of this Agreement be held unenforceable, inoperable or invalid for any reason, said provision will be deemed to be modified to conform to applicable law and this Agreement, and, as so modified, will continue to be in full force and effect and will be binding on the Parties to this Agreement. 0) Interpretation. This Agreement has been negotiated jointly by the Parties and will not be construed against a Party because that Party may have assumed primary responsibility for the drafting of this Agreement. 3 (k) Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Texas. Any action arising out of this Agreement will be brought in Beaumont, Jefferson County, Texas. I (1) No failure or delay by City in exercising any right, power or privilege under this Agreement will operate as a waiver of this Agreement, nor will any single or partial exercise of any such right, power pr privilege preclude any other or further exercise of this Agreement. (m) This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, and all of which will 'constitute one and the same instrument. Such executed counterparts may be delivered by facsimile which, upon transmission to the other Parties, will have the same force and effect as dellivery of the original signed counterpart. (n) This Agreement sets forth the entire unIderstanding of the Parties with respect to the subject matter hereof, and all prior agreements, whether written or oral, are deemed to be merged herein. (o) Verification Against Discrimination of firearm or Ammunition Industries, Pursuant to Texas Government Code Chapter 2274, (as added by Texas Senate Bill 19, 87th Tex. Reg. Session (2021) (effective September 1, 2021)) unless otherwise exempt, if GPP employs at feast ten (10) full-time employees and this Agreement has a value of at least $100,000 that is paid wholly or partlyfrom public funds of the City, GPP represents that: (1.) GPP does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association: and (2) GPP will not discriminate during the Term of this Agreement against a firearm entity br firearm trade association. (p) Verification Against Discrimination_ GPP Does Not Boycott Energy Companies. Pursuant to Texas Government Code Chapter 2274, (as added by Texas Senate Bill 19, 8711, Tex. Reg. Session (2021) (effective September 1., 2021)) unless otherwise exempt, if GPP employs at least ten (1.0) OO Garfield Public/Private LLC Professional Services Pre -Development Agreement Page 9 of 13 } I{!E I full-time employees and this Agreement has a value of at least $100,000 that is paid wholly or partly from public funds of the City, GPP reprl sents that: (1) GPP does not boycott energy companies: and (2) GPP will not boycott energy companies during the Term of this Agreement. [Signature Pages Begin on the Following Page] 0 Garfield Public/Private I.I.0 Professional Services pre -Development Agreement Page 10 of 13 i Signatura page IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. CITY OF BEAUMONT By: Title: )9� ATTEST: City Secretary APPROVED AS TO FORM: - L City Attorney O Garfield Public/private LLC professional Services pre -Development Agreement Page 11 of 13 Signature Page; (Continued) PROFESSIONAL SERVICES PROVIDER GARFIELD PUBLIC/PRIVATE LLC, a Texas limited liability company By: Name: Stephen L. Galbreath Title: Chief Development Officer 0 Garfield Public/Private LLC professional Services Pre -Development Agreement Page 12 of 13 EXHIBIT A EXEMPTION DISCLOSURE WAREAS, the City of Beaumont, Texas ("City") has requested advice from GARFIELD PUBLIC/PRIVATE LLC ("GPP"), a Texas limited liability company, concerning possible financial structures fora public/private development with(n the State of Texas; and WHEREAS, GPP is not an Independent registered municipal advisor as described in SEC Rule 15 Bai - 1(d)(3)(vi) (the "Rule"), and NOW, THEREFORE, City and GPP agree and disclose to each other as follows; I. GPP acknowledges that any municipal entity that contemplates issuing any municipal financial securities as discussed In bPP's work must employ the services of an independent registered municipal advisor, as described In the Rule, to advise it with respect to any aspects of the municipal financial product or issuance of municipal securities. z. Consultant hereby discloses in writing to City that GPP is not a municipal advisor and is not subject to the fiduciary duty set forth in section 1513(c)(1) of the Securities Exchange Act of 1934 (15 U.S.C. 78o-4(c)(1)) with respect to the municipal financial product or issuance of municipal securities as discussed in GPP`sWork. 3. City is strongly encouraged to assess the material incentives and conflicts of interest as discussed In the Rule. 4. GPP will provide a copy of this discldsure to any independent registered municipal advisor, if applicable. Executed theI.AA day of d 2022. GARFIELD PUBLIC/PRIVATE LLC, a Texas limited liability company Title: Chief Development Officer Acknowledged and Agreed, City of Beaumont, Texas gy: Title: 0 Garfield Public/Private LLC Professional Services Pre -Development Agreement Page 3.3 of 13 a � I p i � Q Mi QQ _ y h a cu S _ y Z• d` 4l t a 3 t�' � � � � � �' t✓ • , a F s" p Fi • t�� � O �, 0 ��yV [f` ��" � V �' c �yg�j �o{ �ypNj .� 'J �u• w C 3 5ni 45 3 3 N rri ADDENDUM TO PROFESSIONAL SERVICES PRE -DEVELOPMENT AGREEMENT CONVENTION CENTER AND HEADQUARTERS HOTEL Beaumont, Texas The Professional Services Agreement dated as of December 12, 2022, (the "Agreement") is hereby modified by this Addendum, dated as of the date of execution by the City, as follows: l . Section 1 Pre -Development Scope of Services and Schedule (d) shall be amended to read: GPP will engage the services of an architect acceptable to the City ("Architect") to prepare a conceptual design package (including an initial conceptual masterplan of the hotel/convention district area) to include a building program, site plan, floor plans, elevations, section drawings, renderings, with architectural and engineering narratives ("Conceptual Design") for the Project. This process will take approximately ninety (90) days beginning from the date of execution of this Addendum by the City and will include the following: a. Tour the site with the Architect; b. Investigate siting of the hotel; c. Coordinate the venue's connection to the park, public parking, and other amenities; d. Produce plans and exhibits for an open house/charette with GPP and the Architect; e. Conduct a public open house/charette with GPP and the Architect to present renderings of the hotel for public input and comment; f. Produce and collect a public survey regarding the project; g. Present an initial master plan for the hotel site to City Council. The Conceptual Design will include recommended key count, mix of guestrooms and suites, amount and configuration of ballroom and meeting space, pre -function area, back -of -house requirements, food and beverage outlets, parking, and recommended amenities, which may include a swimming pool and pool deck, fitness center, and business center, among other facilities and amenities. The process described in this Section 1(d) may also be referenced as the "Second Phase" herein, the First Phase being the completed Market Study. If the City decides in its sole discretion that the results of the First and Second Phases are favorable, the City may issue to GPP a notice to proceed with the Third Phase (as defined in Section 1(h)). The date of such notice to proceed may be referenced as the "Phase 3 Notice to Proceed Date" herein. GPP will contractually obligate the Architect to indemnify the City and GPP, as joint indemnitees, consistent with the provision of Chapter 130, Texas Civil Practices and Remedies Code, and Section 271.904, Texas Local Government Code, to maintain insurance (including errors and omission coverage) for the benefit of the City and GPP as additional insureds, in each case in form and substance not less than is customary for a City -operated design project with a similar scope. 2. Section 1 Pre -Development Scope of Services and Schedule (h) shall be amended to read: GPP will use its good faith best efforts to deliver its final report on the Project ("Final Report") to the City within one hundred twenty (120) days of the Phase 3 Notice to Proceed Date. The Final Report will consist of the Conceptual Design, the Preliminary Project Pricing, the Preliminary Project Schedule, the Preliminary Project Operating Pro Forma, and the Preliminary Capital Plan of Finance. Notwithstanding anything to the contrary in this Section 1(h), in the event that the Final Report has not been delivered to the City within one hundred twenty (120) days of the Phase 3 Notice to Proceed Date, the City will have the right to terminate this Agreement and GPP will provide to the City all information it has developed to date in support of the Final Report. This Section 1(h), together with Section 1(e), Section 1(f), and Section 1(g) may also be referenced as the "Third Phase" herein. 3. Section 3 Costs (a) shall be amended to read: The City acknowledges that GPP will incur costs (including but not limited to those stated herein for the Second Phase and the Third Phase), as approved by the City, in connection with the services of the Architect, Contractor, and potentially other third -party consultants hereunder, subject to advance written approval of the City. The City will pay such costs in accordance with the City's normal contract payment procedures. GPP will be paid $40,000.00 for the Market Study. The estimated cost for the Second Phase, as outlined in Section 1(d), shall consist of a combined amount of $60,000.00 plus no more than $4,000.00 for travel expenses. The estimated cost for the Third Phase shall be $92,000.00, including the costs of the services of the Contractor described in Section 1 Pre - Development Scope of Services and Schedule (e), any costs for services rendered by the Architect not already performed in the Second Phase, along with the balance of any fees due to GPP as contemplated in the Agreement. The City will have the right to access and copy any documents supporting the services provided by GPP, the Architect, Contractor, and third -party consultants pursuant to this Agreement. GPP will retain for review by the City, for a period of twenty-four (24) months following the termination of this Agreement, the financial records and reports regarding the work performed by GPP and the Architect, Contractor, and third -party consultants under this Agreement. All the aforesaid costs and fees will be included in the final budget for the Project, subject to approval by the City. 4. Section 4. Term; Termination (a) shall be amended to read: This Agreement will be effective as of the Effective Date and expire upon the earlier of the execution of the PSA or one hundred twenty (120) days from the Phase 3 Notice to Proceed Date. This Agreement may be terminated by either Party in its sole discretion and without cause, provided that the other Party is given not less than ten (10) calendar days' written notice of intent to terminate. In the event of a termination under this Section by City, City will pay GPP Fee compensation owed, if any, through the end of the month in which termination occurs plus expenses incurred, but not yet paid, through the date of such termination. 5. For avoidance of doubt, the Parties acknowledge and agree that: (a) the additional scope of a charette and survey as described in Section 1(d), as amended, adds an additional cost of $15,000 not anticipated in the original Agreement; $10,000 or the $15,000 is being charged in the Second Phase with the balance of $5,000 payable in the Third Phase. (b) the time required to perform the scope of services as amended herein (the Second and Third Phases) is approximately two hundred ten (210) days from the date of execution of this Addendum, which time may be amended by the mutual written consent of the Parties in accordance with Section 5 of the Agreement; (c) the aggregate cost of the services to be performed under the Agreement as amended by this Addendum (including the First, Second and Third Phases) is estimated at $192,000 plus reimbursable Expenses, including the $4,000 for travel expenses during the Second Phase and other Expenses in accordance with Section 3(b) of the Agreement; (d) in accordance with the provisions of the Agreement, other costs may arise during the performance of the services contemplated by the Agreement and this Addendum due to the potential need to engage third -party consultants, in which case any such third -party services and the related costs must be approved in writing by the City on a case by case basis. Acknowledged and Agreed, GARFIELD PUBLIC/PRIVATE LLC Date: I � t to `'Z-OZ'3 City of Beaum nt, Texas By: Date: Title: City Manager