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HomeMy WebLinkAboutRES 06-311 RESOLUTION NO. 06-311 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to execute a Planning Consultant Agreement with Concord Eastridge,Cedar Park,Texas,for a 90-day period with a monthly extension clause. The agreement is substantially in the form attached hereto as Exhibit "A" and made a part hereof for all purposes. BE IT FURTHER RESOLVED that the City Manager is hereby authorized to execute a Site Development Consulting Agreement with Concord Eastridge, Cedar Park, Texas, for an 18-month period with a six-month optional extension clause. The agreement is substantially in the form attached hereto as Exhibit "B" and made a part hereof for all purposes. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 17th day of October, 2006. ar, vnnon�r `%W - Mayor Guy N. Goodson - U i 1 � i PLANNING CONSULTING AGREEMENT THIS PLANNING CONSULTING AGREEMENT("Agreement")is made as of the day of , 2006 (the "Effective Date"), by and between the City of BEAUMONT, Texas ("City"), and Concord Eastridge Texas LLC ("Consultant"). RECITALS A. The area of interest, with regard to this Agreement, is more particularly described on Exhibit A (the "Downtown Redevelopment Area"). B. Planning for the Downtown Redevelopment Area,as outlined in Article III,below,are collectively referred to herein as the "Project". C. City desires to retain Consultant to advise the City and act as the overall coordinator and master developer in connection with City's efforts to provide a downtown plan within the Downtown Redevelopment Area. NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth,and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, City and Consultant hereby agree as follows: ARTICLE I APPOINTMENT 1.1 Subject to the terms of this Agreement, City hereby engages Consultant as an independent contractor for the sole purpose of performing the services described in this Agreement. Consultant is an independent contractor and nothing in this Agreement or in the relationship of City and Consultant shall constitute a partnership, joint venture, agency, employer/employee or any other similar relationship. Consultant hereby accepts such appointment on the terms and conditions and subject to the limitations set forth in this Agreement. ARTICLE II GENERAL MATTERS REGARDING CONSULTANT 2.1 Consultant shall have no right, power or authority whatsoever to act on behalf of or bind City with regard to any matter regarding the Project or otherwise. City acknowledges and agrees that: 1 EXHIBIT "A" (i) Consultant has other significant business matters that are not prohibited hereunder and that will take a significant amount of Consultant's working time, (ii) Consultant may but is not required or expected to engage or hire any other person or company to assist him or incur any material expenses in the performance of his services hereunder, 2.2 Consultant's performance of his obligations to perform services under this Agreement are expressly conditioned upon and subject to City's prior approval, as provided in Section 4.1 below, of all reasonable costs and expenses submitted by Consultant to perform the requested services. 2.3 Any term or provision in this Agreement to the contrary notwithstanding, Consultant is not required to obtain or maintain any permits or licenses, whether or not required in order for Consultant to perform his obligations. 2.4 Consultant shall exercise reasonable efforts, sound judgment and due care and diligence in rendering the consulting services under this Agreement and shall perform his obligations hereunder in a reasonable and prudent manner. 2.5 City acknowledges that Consultant is developing other projects in Central Texas, some of which could involve the same or similar uses or end users, which may be in competition with some of the uses developed as part of the Project. ARTICLE III OBLIGATIONS OF CONSULTANT 3.1 Upon reasonable advance notice, not less frequently than one time per month (or more frequently as City and Consultant may reasonably agree), Consultant shall be available to participate in meetings or telephone conferences with the City Manager and other City representatives to discuss the Project. 3.2 Consultant shall provide the City with analysis of the most advantageous steps necessary to achieve further redevelopment within the Downtown Planning Area . 3.3 Consultant will endeavor to make available to City the benefit of his judgment, experience and advice with respect to his knowledge of the Project. 3.4 Consultant shall not be obligated to make any advances to or for the account of the City or to pay any sums, nor shall Consultant be obligated to incur any liability for the account of City. 2 3.5 Consultant shall, with assistance and approval from the City, identify and help to select a competent urban design professional to produce a graphical rendering of the Downtown Planning Area and the current and proposed public improvements as outlined in the City's Capital Improvement Program. 3.6 Consultant shall, with assistance and approval from the City, identify and help to select a competent urban design professional to produce a graphical rendering of a conceptual plan of the City-owned property along the waterfront. 3.7 Consultant shall, with assistance and approval from the City, identify and help to select a competent land planning consultant to produce a Master Plan for the Downtown Redevelopment Area. 3.8 Consultant shall work to secure funding from non-City sources for the costs of the Master Plan for the Downtown Redevelopment Area; however, this in no way obligates the Consultant to secure full or any portion of the costs associated with retaining a land planning consultant for the production of the Master Plan of the Downtown Redevelopment Area. ARTICLE IV PROJECT EXPENSES 4.1 Consultant shall not have authority under this Agreement to incur any liability or obligation in the name and on behalf of City. Consultant shall not be entitled to reimbursement for general overhead expenses or general administrative expenses not directly incurred by Consultant in connection with this Agreement. ARTICLE V CONSULTING FEE AND TERM OF AGREEMENT 5.1 During the initial term of this Agreement, Consultant shall earn and be paid base consulting fees (collectively, the "Base Consulting Fees") of$_7,000_per month. The initial term of this Agreement shall be 90 Days . 5.2 This agreement shall be for an initial term of 90 days from the Effective Date set forth above, unless earlier terminated as provided below, and may be renewed and extended for periods of 30 days by the written consent of both parties. If this agreement is extended, it shall continue in force on the same terms and conditions as are provided herein. 3 i i ARTICLE VI TERMINATION; DEFAULT 6.1 City may terminate this Agreement by written notice of termination to Consultant (such termination to be effective immediately or at such later date as is specified in such notice), in the event that Consultant breaches any of the terms and provisions of this Agreement and such breach continues for a period of ten (10) days after written notice thereof from City. 6.2 This Agreement shall terminate effective immediately at the election of City or at such later date as City may elect, with written notice to Consultant, if Consultant commits any act of fraud or willful misconduct that is determined as such in a final non-appealable judgment of a court of competent jurisdiction; provided, that any such act by an agent or employee of Consultant shall not be grounds for termination if: (i) such employee or agent is immediately terminated and removed from working on the Project upon the discovery of such act and Consultant reimburses City within thirty (30) days for any and all costs, expenses or liabilities arising from or related to such act; and (ii) such terminated employee or agent shall not be rehired or engaged for work on the Project by Consultant under City's Limited Partnership Agreement. 6.3 This Agreement shall terminate effective immediately at the election of Consultant or at such later date as Consultant may elect and without any prior notice to City, except as hereinafter expressly provided, upon the occurrence and during the continuance of any of the following events (each a "For Cause Termination Event"): (a) Consultant may terminate this agreement if City breaches any of the terms and provisions of this Agreement and such breach continues for a period of ten(10) days after written notice thereof, if such breach consists of the failure to pay any sum of money, or, in all other cases, thirty (30) days after such written notice; provided, however, that, in the case of a non-monetary breach which is capable of being cured within a reasonable time but cannot with due diligence be cured within such thirty(30) day period, Consultant may not terminate this Agreement if and so long as City commences to cure the same within such thirty(30)day period and thereafter continues to prosecute such cure with all due diligence until completion. 6.4 Upon the expiration of the term of this Agreement or any earlier termination and City's written request, Consultant shall at City's sole cost and expense: (i) Deliver to City all books, records, including computer databases, materials and supplies,keys,marketing and advertising materials,contracts and documents,and such other records received by Consultant from City and pertaining solely to Consultant's 4 I services under this Agreement that are then in Consultant's possession or under its control; and (ii) Take such further actions as City may reasonably require to assure an orderly transition of Consultant's duties under this Agreement. Consultant may retain copies of materials described in this provision for his personal records. 6.5 Any term or provision in this Agreement to the contrary notwithstanding,in no event shall this Agreement terminate or be terminable by City, nor shall Consultant be in breach or default hereunder, in the event of or upon Consultant's vacation, reasonable conflict of scheduling, illness,disability or death and Consultant's inability or unavailability to perform services under this Agreement, temporarily or permanently, in any such events; and,upon the occurrence of any such event, the fees set out in Section 5.1 shall nevertheless be timely paid as provided in this Agreement, to Consultant or his guardian or heirs, as applicable. ARTICLE VII INSURANCE 7.1 City and Consultant each hereby waives any and all rights of recovery, claims, actions or causes of action, against the other, its agents, servants, partners, shareholders, officers or employees, for any loss or damage that may occur to the Project,or any improvements thereto, or any personal property of such party therein, by reason of fire, the elements or any other cause which could be insured against under the terms of a standard fire and extended coverage insurance policy, regardless of cause or origin, including gross negligence of the other party hereto, its agents, officers, partners, shareholders, servants or employees and covenants that no insurer shall hold any right of subrogation against such other party. If any respective insurer of City or Consultant does not permit such a waiver without an appropriate endorsement to such party's insurance policy, then City and Consultant each covenant and agree to notify its insurer of the waiver set forth herein and to secure from such insurer an appropriate endorsement to its respective insurance policy with respect to such waiver. ARTICLE VIII MISCELLANEOUS 8.1 Indemni . (a) Consultant shall protect, defend, indemnify and hold harmless City from and against any and all loss, actual out of pocket costs, damages (excluding consequential or punitive), liability and expense (including court costs and reasonable attorneys fees) arising out of or resulting from (i) any willful act of Consultant beyond the scope of his authority hereunder, (ii) Consultant's gross negligence, willful misconduct or 5 unlawful acts and (iii) Consultant's breach of its obligations under this Agreement (other than a negligent breach). Any indemnification shall apply regardless of whether or not said claim, damage, loss or expense is covered by insurance but Consultant's obligation with respect to such claim, damage, loss or expense under this Section 8.l(b) shall be reduced by the amount of any such insurance actually collected by City with respect to such claim, damage, loss or expense. The provisions of this Section 8.1(b) shall survive any expiration or termination of this Agreement. (b) The foregoing indemnity obligations set forth in this Section 8.1 shall survive the expiration or earlier termination of this Agreement. 8.2 Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be delivered or sent, as the case may be, by any of the following methods: (i)personal delivery; (ii)overnight commercial carrier or delivery service; (iii)registered or certified mail (with postage prepaid and return receipt requested); or (iv) facsimile, telex, telecopy, or electronic mail. Any such notice or other communication shall be deemed received and effective upon the earlier of(a) if personally delivered, the date of delivery to the address of the party to receive such notice; (b) if delivered by overnight commercial carrier or delivery service, one (1) day following the receipt of such communication by such carrier or service from the sender, as shown on the sender's delivery invoice from such carrier or service, as the case may be; (c) if mailed, forty-eight (48) hours after the date of posting as shown on the sender's registry or certification receipt; or (d) if given by facsimile, telex, telecopy, or electronic mail, when sent. For purposes hereof, the addresses of the parties shall be as follows: Cam: C/o City Manager Attention: Kyle Hayes Fax No.. Phone No.: email: Consultant: Concord Eastridge Texas LLC 409 Breakaway Road Cedar Park, Texas 78613 Fax No.: Phone No.: 512-971-6879 email: gwilliams @concordeastridge.com Notice of change of address shall be given by written notice in the manner detailed in this Section 8.2. Rejection or other refusal to accept, or the inability to deliver, because of a 6 changed address of which no notice was given shall be deemed to constitute receipt of the notice or other communication sent. 8.3 Construction of A reement. The Article and Section headings used in this Agreement are for reference purposes only, and are not intended to be used in construing this Agreement. The Exhibits attached are incorporated by reference and expressly made a part of this Agreement for all purposes. References to any Exhibit in this Agreement shall be deemed to include this reference and incorporation. As used in this Agreement,the masculine gender shall include the feminine and neuter, and singular number shall include the plural, and vice versa. Each parry acknowledges, represents, and warrants that(i)each parry is of equal bargaining strength; (ii) each such parry has actively participated in the drafting, preparation, and negotiation of this Agreement; (iii) each such party and such party's independent counsel have reviewed this Agreement; and (iv) any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, any portion hereof, any amendments hereto, or any Exhibits attached hereto. 8.4 Integration. This Agreement contains the entire understanding between City and Consultant,and supersedes any prior or contemporaneous understanding or agreements between them,whether written or oral, respecting the within subject matter. No alteration,modification or interpretation hereof shall be binding unless in writing and signed by City and Consultant. 8.5 Time. Time is of the essence of this Agreement. 8.6 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original Agreement, and all of which shall constitute one and the same Agreement. 8.7 Goveming Law. The provisions of this Agreement shall be construed and enforced in accordance with the law of the State of Texas. This Agreement is performable in, and the exclusive venue for any action, shall lie in Jefferson County, Texas. 8.8 Attorneys Fees. Should any litigation be commenced between the parties hereto or their representatives concerning any provision of this Agreement or the rights and duties of any person or entity in relation thereto, the party or parties prevailing in such litigation shall be entitled, in addition to such other relief as may be granted, to an award of all actual attorneys' fees and costs incurred in such litigation, without regard to any schedule or rule of court purporting to restrict such an award, including, without limitation, actual attorneys' fees, costs and expenses incurred in connection with (i) enforcing, perfecting and executing such judgment, (ii) post- 7 judgment motions; (iii) contempt proceedings; (iv) garnishment, levee, and debtor and third- party examinations; (v) discovery; and (vi) bankruptcy litigation. 8.9 Further Assurances. The parties agree to execute such further documents and take such other actions as may be permitted or required by law to implement the purposes, objectives, terms, and provisions of this Agreement. 8.10 Waiver. No consent or waiver, express or implied, by a party hereto to or of any breach or default by another in the performance by the other of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by the other party hereunder. Failure on the part of a party to complain of any act or failure to act of the other party or to declare the other party in default, irrespective of how long such failure continues, shall not constitute a waiver by such party of its rights hereunder. 8.11 Severabilitv. If any provision of this Agreement or application to any parry or circumstances shall be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of this Agreement or the application of such provision to such person or circumstances, other than as to which it is so determined invalid or unenforceable, shall not be affected thereby,and each provision shall be valid and shall be enforced to the fullest extent permitted by law. 8.12 Equitable Remedies. Any party shall, in addition to all other rights provided herein or as may be provided by law, and subject to the limitations set forth herein, be entitled to all equitable remedies including those of specific performance and injunction, to enforce such parry's rights. 8.13 Remedies Cumulative. Each right, power, and remedy provided for herein or now or hereafter existing at law, in equity, by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power, or remedy provided for herein or now or hereafter existing at law, in equity, by statute or otherwise, and the exercise or beginning of the exercise or the forbearance of exercise by any party of any one or more of such rights, powers, or remedies shall not preclude the simultaneous or later exercise by such party of any or all of such other rights, powers or remedies. 8.14 Force Majeure. Consultant shall be excused from performing its obligations under this Agreement for so long as and to the extent that performance is prevented or delayed by a Force Majeure Event. As used herein, a "Force Majeure Event" means fire, earthquake, flood, explosion, war, insurrection, riot, mob violence, sabotage, inability to procure labor, equipment, facilities, materials or supplies, strikes, walk outs, action of labor unions, condemnation, inability to 8 obtain governmental permits or approvals, unusually inclement weather(including heavy rain or snow) in which work cannot proceed, any delays due to changes to the original proposed Project dictated by City, failure of City to provide funds necessary for the completion of the Project on a timely basis pursuant to the terms, or, to the extent any such obligation is prevented by the failure of City to provide an approval for which City's approval is timely requested, and any other matters not within the reasonable control of Consultant. 8.15 No Third Party Beneficiary. No third party shall be or be deemed to be entitled to the benefit of any obligation of Consultant or City hereunder. 8.16 Assignment. Consultant may not directly or indirectly transfer,sell,assign,or hypothecate its interest under this Agreement or any rights to any other entity or person, without the written consent of City, except to Consultant's lenders or entities in which Consultant has a controlling interest, executors, heirs and controlled affiliates. City shall not assign its rights or obligations under this Agreement without the prior written consent of Consultant. IN WITNESS WHEREOF,the Parties hereto have duly executed this Agreement as of the date first written above. CITY: BEAUMONT, TEXAS By: By: Name: Title: CONSULTANT: CONCORD EASTRIDGE TEXAS LLC By: By: Name: Title: 9 EXHIBIT A Downtown Redevelopment Area City of Beaumont Downtown Planning Area The City of Beaumont Downtown Planning Area. Said area being more fully described as follows: Beginning at the south comer of the described area, being the intersection of the centerline of the southwest bound lanes of M.L.K. Blvd. and the centerline of Blanchette St.; Then with the centerline of the southwest bound lane of M.L.K. Blvd. approximately 7000 ft. northeast and north to the intersection of the centerline of the southbound lanes of M.L.K. Blvd. and the centerline of Calder Ave.; Then with the centerline of Calder Ave. approximately 2050 ft. to the intersection of the centerline of Calder Ave. and the centerline of Magnolia St.; Then with the centerline of Magnolia St. approximately 4000 ft. north to the intersection of Magnolia St. and the centerline of Interstate Highway 10 East; Then with the centerline of Interstate Highway 10 East approximately 2850 ft. east to the intersection of Interstate Highway 10 East and the centerline of Brakes Bayou; Then following the centerline of Brakes Bayou approximately 4100 ft. south to the intersection of the centerlines of Brakes Bayou and the Neches River; Then following the centerline of the Neches River approximately 2500 ft. southeast to an intersection approximately 400 ft. southeast of the Kansas City Southern Railroad Bridge and a line extending due south; Then due south and southwest approximately 1500 ft. to join the centerline of Blanchette St.; Then with the centerline of Blanchette St. approximately 3600' southwest to intersect with the centerline of the southbound lanes of M.L.K. Blvd. and the point of beginning. SITE DEVELOPMENT CONSULTING AGREEMENT THIS DEVELOPMENT CONSULTING AGREEMENT ("Agreement") is made as of the day of , 2006 (the "Effective Date"), by and between the City of BEAUMONT, Texas ("City"), and Concord Eastridge Texas LLC ("Consultant"). RECITALS A. City owns certain real property located in the City limits more particularly described on Exhibit A attached hereto (the "City's Land"), and City desires to utilize the City's Land to stimulate economic development and enhance the City's tax base through development of the Land. B. Efforts, as described herein, to develop the City's Land is referred to herein as the "Project". C. City desires to retain Consultant to advise the City and act as the overall coordinator and master developer in connection with City's development of the Project. NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth,and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, City and Consultant hereby agree as follows: ARTICLE I APPOINTMENT 1.1 Subject to the terms of this Agreement, City hereby engages Consultant as an independent contractor for the sole purpose of performing the services described in this Agreement. Consultant is an independent contractor and nothing in this Agreement or in the relationship of City and Consultant shall constitute a partnership, joint venture, agency, employer/employee or any other similar relationship. Consultant hereby accepts such appointment on the terms and conditions and subject to the limitations set forth in this Agreement. ARTICLE II GENERAL MATTERS REGARDING CONSULTANT 2.1 Consultant shall have no right, power or authority whatsoever to act on behalf of or bind City with regard to any matter regarding the Project or otherwise. City acknowledges and agrees that: 1 EXHIBIT "B" (i) Consultant has other significant business matters that are not prohibited hereunder and that will take a significant amount of Consultant's working time, (ii) Consultant may but is not required or expected to engage or hire any other person or company to assist him or incur any material expenses in the performance of his services hereunder, (iii) Consultant will need and is entitled to reasonable advance notice of the specific services City requires under this Agreement and the timing of such services, and 2.2 Consultant's performance of his obligations to perform services under this Agreement are expressly conditioned upon and subject to City's prior approval, as provided in Section 4.1 below, of all reasonable costs and expenses submitted by Consultant to perform the requested services. 2.3 Any term or provision in this Agreement to the contrary notwithstanding, Consultant is not required to obtain or maintain any permits or licenses, whether or not required in order for Consultant to perform his obligations. 2.4 Consultant shall exercise reasonable efforts, sound judgment and due care and diligence in rendering the consulting services under this Agreement and shall perform his obligations hereunder in a reasonable and prudent manner. 2.5 City acknowledges that Consultant is developing other projects in Central Texas, some of which could involve the same or similar uses or end users, which may be in competition with some of the uses developed as part of the Project. 2.6 Consultant shall not be obligated to make any advances to or for the account of the City or to pay any sums, nor shall Consultant be obligated to incur any liability for the account of City. ARTICLE III OBLIGATIONS OF CONSULTANT 3.1 Upon reasonable advance notice, not less frequently than one time per month (or more frequently as City and Consultant may reasonably agree), Consultant shall be available to participate in meetings or telephone conferences with the City Manager and other City representatives to discuss the Project. 3.2 Consultant shall provide City with analysis of the highest and best use for the Project. 3.3 Consultant will make available to City the benefit of his judgment, experience and advice with respect to his knowledge of the Project. 2 3.4 Consultant shall work to secure appropriate development opportunities within the City's land. These efforts may include: (i) Solicit and evaluate quality development teams and proposals for City's land, (ii) Conduct market demand and feasibility studies for determining market support projects, (iii) Estimate costs and conduct financial analysis for understanding the financial feasibility and cost implications of the City's preferred development scenario and identify the City's potential role in any public-private development project, (iv) Negotiate the terms of a development agreement or agreements with selected developers for the City's consideration, and, ARTICLE IV PROJECT EXPENSES 4.1 Consultant shall not have authority under this Agreement to incur any liability or obligation in the name and on behalf of City; provided, however, Consultant shall be entitled to reimbursement by City, within thirty (30) days of presentment of invoice. ARTICLE V CONSULTING FEE 5.1 Consultant shall serve as the master developer of the Project. City acknowledges that Consultant may earn fees and/or participate in the Project equity through negotiation with end users or on its own accord by developing portions of the Project itself. City acknowledges that Consultant will assume all of the risk on any development financing necessary for the Project and as such shall be entitled to negotiate financial terms acceptable to Consultant. 5.2 This agreement shall be for an initial term of 18 months from the effective date set forth above, unless earlier terminated as provided below, and may be renewed and extended for periods of six (6) months by the written consent of both parties. If this agreement is extended, it shall continue in force on the same terms and conditions as are provided herein. 3 ARTICLE VI TERMINATION; DEFAULT 6.1 This Agreement shall commence on the Effective Date and terminate effective immediately upon (i) City's entering into an agreement resulting from Consultant's efforts, or (ii) as provided in Sections 6.2, 6.3, or 6.4 below. 6.2 City may terminate this Agreement by written notice of termination to Consultant (such termination to be effective immediately or at such later date as is specified in such notice), in the event that Consultant breaches any of the terms and provisions of this Agreement and such breach continues for a period of ten (10) days after written notice thereof from City to Consultant. 6.3 This Agreement shall terminate effective immediately at the election of City or at such later date as City may elect, with written notice to Consultant, if Consultant commits any act of fraud or willful misconduct that is determined as such in a final non-appealable judgment of a court of competent jurisdiction; provided, that any such act by an agent or employee of Consultant shall not be grounds for termination if: (i) such employee or agent is immediately terminated and removed from working on the Project upon the discovery of such act and Consultant reimburses City within thirty (30) days for any and all costs, expenses or liabilities arising from or related to such act; and (ii) such terminated employee or agent shall not be rehired or engaged for work on the Project by Consultant under City's Limited Partnership Agreement. 6.4 This Agreement shall terminate effective immediately at the election of Consultant or at such later date as Consultant may elect and without any prior notice to City, except as hereinafter expressly provided, upon the occurrence and during the continuance of any of the following events (each a "For Cause Termination Event"): (a) Consultant may terminate this agreement if City breaches any of the terms and provisions of this Agreement and such breach continues for a period of ten(10) days after written notice thereof, thirty (30) days after such written notice; provided, however, that, in the case of a breach which is capable of being cured within a reasonable time but cannot with due diligence be cured within such thirty (30) day period, Consultant may not terminate this Agreement if and so long as City commences to cure the same within such thirty (30) day period and thereafter continues to prosecute such cure with all due diligence until completion. 6.5 Upon the expiration of the term of this Agreement or any earlier termination and City's written request, Consultant shall at City's sole cost and expense: 4 (i) Deliver to City all books, records, including computer databases, materials and supplies,keys,marketing and advertising materials,contracts and documents,and such other records received by Consultant from City and pertaining solely to Consultant's services under this Agreement that are then in Consultant's possession or under its control; and (ii) Take such further actions as City may reasonably require to assure an orderly transition of Consultant's duties under this Agreement. Consultant may retain copies of materials described in this provision for his personal records. 6.6 Any term or provision in this Agreement to the contrary notwithstanding, in no event shall this Agreement terminate or be terminable by City, nor shall Consultant be in breach or default hereunder, in the event of or upon Consultant's vacation, reasonable conflict of scheduling, illness,disability or death and Consultant's inability or unavailability to perform services under this Agreement, temporarily or permanently, in any such events; and,upon the occurrence of any such event, the fees set out in Section 5.1 shall nevertheless be timely paid as provided in this Agreement, to Consultant or his guardian or heirs, as applicable. ARTICLE VII INSURANCE 7.3 City and Consultant each hereby waives any and all rights of recovery, claims, actions or causes of action, against the other, its agents, servants, partners, shareholders, officers or employees,for any loss or damage that may occur to the Project,or any improvements thereto, or any personal property of such party therein, by reason of fire, the elements or any other cause which could be insured against under the terms of a standard fire and extended coverage insurance policy, regardless of cause or origin, including gross negligence of the other parry hereto, its agents, officers, partners, shareholders, servants or employees and covenants that no insurer shall hold any right of subrogation against such other party. If any respective insurer of City or Consultant does not permit such a waiver without an appropriate endorsement to such party's insurance policy, then City and Consultant each covenant and agree to notify its insurer of the waiver set forth herein and to secure from such insurer an appropriate endorsement to its respective insurance policy with respect to such waiver. ARTICLE VIII MISCELLANEOUS 8.1 Indemnity. (a) Consultant shall protect, defend, indemnify and hold harmless City from and against any and all loss, actual out of pocket costs, damages (excluding consequential or 5 punitive), liability and expense (including court costs and reasonable attorneys fees) arising out of or resulting from (i) any willful act of Consultant beyond the scope of his authority hereunder, (ii) Consultant's gross negligence, willful misconduct or unlawful acts and (iii) Consultant's breach of its obligations under this Agreement (other than a negligent breach). Any indemnification shall apply regardless of whether or not said claim, damage, loss or expense is covered by insurance but Consultant's obligation with respect to such claim, damage, loss or expense under this Section 8.1(b)shall be reduced by the amount of any such insurance actually collected by City with respect to such claim, damage, loss or expense. The provisions of this Section 8.l(b) shall survive any expiration or termination of this Agreement. (b) The foregoing indemnity obligations set forth in this Section 8.1 shall survive the expiration or earlier termination of this Agreement. 8.2 Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be delivered or sent, as the case may be, by any of the following methods: (i)personal delivery; (ii)overnight commercial carrier or delivery service; (iii)registered or certified mail (with postage prepaid and return receipt requested); or (iv) facsimile, telex, telecopy, or electronic mail. Any such notice or other communication shall be deemed received and effective upon the earlier of(a) if personally delivered, the date of delivery to the address of the party to receive such notice; (b) if delivered by overnight commercial carrier or delivery service, one (1) day following the receipt of such communication by such carrier or service from the sender,as shown on the sender's delivery invoice from such carrier or service, as the case may be; (c) if mailed, forty-eight (48) hours after the date of posting as shown on the sender's registry or certification receipt; or (d) if given by facsimile, telex, telecopy, or electronic mail, when sent. For purposes hereof, the addresses of the parties shall be as follows: Cam: C/o City Manager Attention: Kyle Hayes Fax No.: Phone No.: email: Consultant: Concord Eastridge Texas LLC 409 Breakaway Road Cedar Park, Texas 78613 Fax No.: Phone No.: 512-971-6879 email: gwilliams @concordeastridge.com 6 Notice of change of address shall be given by written notice in the manner detailed in this Section 8.2. Rejection or other refusal to accept, or the inability to deliver, because of a changed address of which no notice was given shall be deemed to constitute receipt of the notice or other communication sent. 8.3 Construction of Agreement. The Article and Section headings used in this Agreement are for reference purposes only, and are not intended to be used in construing this Agreement. The Exhibits attached are incorporated by reference and expressly made a part of this Agreement for all purposes. References to any Exhibit in this Agreement shall be deemed to include this reference and incorporation. As used in this Agreement,the masculine gender shall include the feminine and neuter, and singular number shall include the plural, and vice versa. Each parry acknowledges, represents, and warrants that(i)each parry is of equal bargaining strength; (ii) each such party has actively participated in the drafting, preparation, and negotiation of this Agreement; (iii) each such party and such party's independent counsel have reviewed this Agreement; and (iv) any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, any portion hereof, any amendments hereto, or any Exhibits attached hereto. 8.4 Integration. This Agreement contains the entire understanding between City and Consultant,and supersedes any prior or contemporaneous understanding or agreements between them, whether written or oral, respecting the within subject matter. No alteration,modification or interpretation hereof shall be binding unless in writing and signed by City and Consultant. 8.5 Time. Time is of the essence of this Agreement. 8.6 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original Agreement, and all of which shall constitute one and the same Agreement. 8.7 Governing Law. The provisions of this Agreement shall be construed and enforced in accordance with the law of the State of Texas. This Agreement is performable in, and the exclusive venue for any action, shall lie in Jefferson County, Texas. 8.8 Attorneys Fees. Should any litigation be commenced between the parties hereto or their representatives concerning any provision of this Agreement or the rights and duties of any person or entity in relation thereto, the party or parties prevailing in such litigation shall be entitled, in addition to such other relief as may be granted, to an award of all actual attorneys' fees and costs incurred in such litigation, without regard to any schedule or rule of court purporting to restrict such an award, including, without limitation, actual attorneys' fees, costs and expenses incurred in connection with (i) enforcing, perfecting and executing such judgment, (ii) post- 7 judgment motions; (iii) contempt proceedings; (iv) garnishment, levee, and debtor and third- party examinations; (v) discovery; and (vi) bankruptcy litigation. 8.9 Further Assurances. The parties agree to execute such further documents and take such other actions as may be permitted or required by law to implement the purposes, objectives, terms, and provisions of this Agreement. 8.10 Waiver. No consent or waiver, express or implied, by a party hereto to or of any breach or default by another in the performance by the other of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by the other party hereunder. Failure on the part of a party to complain of any act or failure to act of the other party or to declare the other party in default, irrespective of how long such failure continues, shall not constitute a waiver by such party of its rights hereunder. 8.11 Severability. If any provision of this Agreement or application to any party or circumstances shall be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of this Agreement or the application of such provision to such person or circumstances, other than as to which it is so determined invalid or unenforceable, shall not be affected thereby,and each provision shall be valid and shall be enforced to the fullest extent permitted by law. 8.12 Equitable Remedies. Any party shall, in addition to all other rights provided herein or as may be provided by law, and subject to the limitations set forth herein, be entitled to all equitable remedies including those of specific performance and injunction, to enforce such party's rights. 8.13 Remedies Cumulative. Each right, power, and remedy provided for herein or now or hereafter existing at law, in equity, by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power, or remedy provided for herein or now or hereafter existing at law, in equity, by statute or otherwise, and the exercise or beginning of the exercise or the forbearance of exercise by any party of any one or more of such rights, powers, or remedies shall not preclude the simultaneous or later exercise by such party of any or all of such other rights, powers or remedies. 8.14 Force Majeure. Consultant shall be excused from performing its obligations under this Agreement for so long as and to the extent that performance is prevented or delayed by a Force Majeure Event. As used herein, a "Force Majeure Event" means fire, earthquake, flood, explosion, war, insurrection, riot, mob violence, sabotage, inability to procure labor, equipment, facilities, materials or supplies, strikes, walk outs, action of labor unions, condemnation, inability to 8 obtain governmental permits or approvals, unusually inclement weather(including heavy rain or snow) in which work cannot proceed, any delays due to changes to the original proposed Project dictated by City, failure of City to provide funds necessary for the completion of the Project on a timely basis pursuant to the terms or, to the extent an such obligation is J Y P Y g prevented by the failure of City to provide an approval for which City's approval is timely requested, and any other matters not within the reasonable control of Consultant. 8.15 No Third Party Beneficiary. No third party shall be or be deemed to be entitled to the benefit of any obligation of Consultant or City hereunder. 8.16 Assignment. Consultant may not directly or indirectly transfer,sell,assign,or hypothecate its interest under this Agreement or any rights to any other entity or person, without the written consent of City, except to Consultant's lenders or entities in which Consultant has a controlling interest, executors, heirs and controlled affiliates. City shall not assign its rights or obligations under this Agreement without the prior written consent of Consultant. IN WITNESS WHEREOF,the Parties hereto have duly executed this Agreement as of the date first written above. CITY: BEAUMONT, TEXAS By: By: Name: Title: CONSULTANT: CONCORD EASTRIDGE TEXAS LLC By: By: Name: Title: 9 EXHIBIT A Legal Description of the City's Land A city owned property in the downtown area to be developed. Said area being more fully described as follows. Beginning at the south corner of the described property,being the northernmost comer of the intersection of Gilbert St.,also known as the Kansas City Southern right-of-way, and Main St.; Then with the northwest right-of-way line of Main St., approximately 1500 ft. northeast to the east comer of the intersection of Main St. and an abandoned section of Travis St.; Then with the east right-of-way line of the abandoned portion of Travis St., approximately 80 ft. north to the southeast corner of the abandoned portion of Travis St. and the abandoned right-of-way of Hickory St.; Then with the south right-of-way line of the abandoned Hickory St. approximately 460 ft. east to the comer of the abandoned Hickory St. and the railroad changing yard; Then with the west edge of the railroad changing yard approximately 250 ft. southeast to the east comer of the railroad changing yard and an abandoned portion of Forsythe St.; Then with the southeast right-of-way line of the abandoned portion of Forsythe St. approximately 100 ft. southwest to the west comer of the intersection of the abandoned portion of Forsythe St. and the railroad changing yard; Then with the southwest edge of the railroad changing yard approximately 1000 ft. southeast to the west corner of the railroad changing yard and Gilbert St., a.k.a the Kansas City Southern right-of-way; Then with the northwest right-of-way line of Gilbert St., a.k.a the Kansas City Southern right-of-way, approximately 260 ft. southwest to the north comer of the intersection of Gilbert St., a.k.a the Kansas City Southern right-of-way, and Main St. to the place of beginning. i