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HomeMy WebLinkAboutPACKET OCT 17 2006 vokw� . ° IL City of Beaumont REGULAR MEETING OF THE CITY COUNCIL COUNCIL CHAMBERS OCTOBER 17,2006 1:30 P.M. CONSENT AGENDA * Approval of minutes * Confirmation of committee appointments A) Approve the sale of City-owned surplus property B) Authorize the City Manager to execute an interlocal agreement with Jefferson County for a Joint Airborne Law Enforcement Unit C) Approve a resolution accepting maintenance of the water and sanitary sewer improvements in the Crescent on Walden Phase I Subdivision D) Authorize the City Manager to execute the renewal of a lease agreement for the Women's, Infants and Children(WIC) satellite office City of Beaumont •�• Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Max S. Duplant, Chief Financial Officer MEETING DATE: October 17, 2006 AGENDA MEMO DATE: October 12, 2006 REQUESTED ACTION: Consider approving the sale of City-owned surplus property. RECOMMENDATION Administration recommends the sale of five (5) parcels of City-owned surplus property to the individuals listed below for a total sum of$2,400. BACKGROUND Bids were received Thursday, September 21, 2006 for the sale of City-owned surplus property. The legal description and the bidders for each property are listed below: Parcel No.: 76 Address: 2030 Leight Street Legal: Gold Hill 3 Addition, Lot 7, Block 17 Zoning: RS Residential Single Family The bids received are listed below: Bidder Amount Bid Clinon Kyle $300.00' Lavelle J. Lemonier $161.00 Sale of Surplus Property October 9, 2006 Page 2 Parcel No.: 90 Address: 1004-1010 Forrest Street Legal: Jirou Addition, Lot 7, Block 17 Zoning: RS Residential Bidder Amount Bid Perry Gregory $600.00 Larry Lewis-Helping Hands $456.00 James & Christine Hunt $350.00 Lavelle J. Lemonier $200.00 Clinon Kyle $100.00 Sherry Faye Gasaway $75.00 Parcel No.: 97 Address: 455 Delaware Legal: King Addition, Lot 22, Block 4 Zoning: RS Residential Single Family Bidder Amount Bid Clinon Kyle $300.00 Parcel No.: 110 Address: Tilson Street Legal: McGovern Addition, Lot 9, Block 4 Zoning: RM-H Residential Multi Family High Density Bidder Amount Bid Perry Gregory $600.00 Clinon Kyle $100.00 Sherry Faye Gasaway $75.00 Sale of Surplus Property October 9, 2006 Page 3 Parcel No.: 114 Address: 2590 Coast Street Legal: North Addition, Lot 6, Block 43 Zoning: RM-H Residential Multi-Family High Density "RETAIN EXCLUSIVE 10' WATER LINE EASEMENT, NO STRUCTURES WITHIN EASEMENT" Bidder Amount Bid Perry Gregory $600.00 Shirley J. Joubert $500.00 Lavelle J. Lemonier $100.00 Clinon Kyle $100.00 Sherry Faye Gasaway $25.00 All properties were obtained through Jefferson County Sheriff's sales. BUDGETARY IMPACT Payments to the City for this property will be deposited in the General Fund. PREVIOUS ACTION None. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager and Chief Financial Officer. RESOLUTION NO. WHEREAS, the City of Beaumont finds and determines that the surplus property described below is no longer needed for a public purpose and has no objection to the disposal of said property; and, WHEREAS, bids were received for the purchase of such property as described below: Parcel No.: 76 Address: 2030 Leight Street Legal: Gold Hill 3 Addition, Lot 7, Block 17 Zoning: RS Residential Single Family Purchaser Amount Bid Clinon Kyle $300.00 Parcel No.: 90 Address: 1004-1010 Forrest Street Legal: Jirou Addition, Lot 7, Block 17 Zoning: RS Residential Purchaser Amount Bid Perry Gregory $600.00 Parcel No.: 97 Address: 455 Delaware Legal: King Addition, Lot 22, Block 4 Zoning: RS Residential Single Family Purchaser Amount Bid Clinon Kyle $300.00 Parcel No.: 110 Address: Tilson Street Legal: McGovern Addition, Lot 9, Block 4 Zoning: RM-H Residential Multi Family High Density Purchaser Amount Bid Perry Gregory $600.00 Parcel No.: 114 Address: 2590 Coast Street Legal: North Addition, Lot 6, Block 43 Zoning: RM-H Residential Multi-Family High Density "RETAIN EXCLUSIVE 10' WATER LINE EASEMENT, NO STRUCTURES WITHIN EASEMENT" Purchaser Amount Bid Perry Gregory $600.00 and, WHEREAS, the land is no longer needed for the use of citizens as a road, nor does it have a potential for park, conservation, recreation or similar purposes; and, WHEREAS, the City of Beaumont wishes to sell the above properties as shown; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be, and he is hereby, authorized to execute Special Warranty Deeds for the sale of above-described properties as shown. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 17th day of October, 2006. - Mayor Guy N. Goodson - B City of Beaumont •�• Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED: Frank C. Coffin, Jr., Chief of Police 9-L' MEETING DATE: October 17, 2006 AGENDA MEMO DATE: October 10, 2006 REQUESTED ACTION: Consider a resolution authorizing the City Manager to execute an interlocal agreement with Jefferson County for a Joint Airborne Law Enforcement Unit. RECOMMENDATION Administration recommends approval of the resolution to authorize execution of the interlocal agreement. BACKGROUND In 1995, the Jefferson County Sheriff's Office obtained two military surplus helicopters from the United States Army. The helicopters were obtained to be used for law enforcement and rescue activities in Jefferson and the surrounding counties. After discussions with the Beaumont Police Department, the Jefferson County Sheriff's Office and the Beaumont Police Department proposed establishing a joint airborne law enforcement unit. On March 18, 1997, the City Council of the City of Beaumont passed Resolution No. 97-53, authorizing the City Manager to execute an interlocal agreement with Jefferson County for the purpose of establishing a joint airborne law enforcement unit. Jefferson County Commissioners passed a similar resolution and the agreement was executed in 1997. The term of that agreement was for an initial one year with automatic reauthorization for a second year unless either party gave written notice of an intention to discontinue the agreement. On November 7, 2000, the City Council of the City of Beaumont passed Resolution No. 00-284, authorizing an interlocal agreement with Jefferson County for a joint airborne law enforcement unit. The term of the agreement was for one year with one additional one year term. In addition, the agreement covered a military surplus helicopter that the Beaumont Police Department received from the United States Government. The current proposed agreement is based upon the prior interlocal agreements and includes a one-year term with two additional one-year renewal options. It covers all aircraft owned by Jefferson County or the City of Beaumont, including any aircraft to be acquired in the future during the term of this agreement by either Jefferson County or the City of Beaumont. PREVIOUS ACTION Resolution No. 97-53 authorized the execution of a similar agreement which expired in 1999. Resolution No. 00-284 authorized the execution of a similar agreement which expired in 2002. The current proposed agreement has been executed by the County on the 25'of September, 2006. SUBSEQUENT ACTION None. BUDGETARY IMPACT Beaumont's share of the costs for operational expenses may be paid from asset forfeiture funds or other funds, as set out in the agreement. RECOMMENDED BY City Manager and Chief of Police. INTERLOCAL AGREEMENT COPY BEAU MONT/JEFFERSON COUNTY AIRBORNE LAW ENFORCEMENT UNIT STATE OF TEXAS § COUNTY OF JEFFERSON § This Interlocal Agreement ("the Agreement") is entered into between the City of Beaumont, a municipal corporation situated in Jefferson County, Texas ("City"), and Jefferson County, a political subdivision of the State of Texas ("County") pursuant to the Interlocal Cooperation Act, Tex.Govt.Code Ann. §§791.001-791.027 (Vernon's 1994). WITNESSETH : WHEREAS, the Jefferson County Sheriff's Office ("JCSO") has received from the United States Government one(1)military surplus United States Army OH-58C helicopter, serial number 70-15592; WHEREAS,the Beaumont Police Department("BPD")has received from the United States Government one(1)military surplus United States Army OH-58A+ helicopter, serial number 68-16722; WHEREAS, the JCSO and/or BPD may, in the future, purchase or acquire additional helicopters. C:IALEUAGREEMENT.wpd Page 1 of 9 WHEREAS, it would be to the mutual benefit of the City and the County to establish a joint airborne law enforcement unit ("Unit") to operate and maintain the helicopters for law enforcement purposes; WHEREAS, the County, through the JCSO, and the City, through the BPD, have agreed to combine certain resources to form the Unit; WHEREAS, the JCSO and BPD have agreed to contribute funds from their respective assetforfeiture accounts to pay certain costs and expenses related to operation, maintenance and upkeep of the helicopters; WHEREAS, the JCSO and BPD may also receive funds, jointly or severally, from other sources to pay certain costs and expenses related to operation, maintenance and upkeep of the helicopters; WHEREAS, City and County believe that it is in their mutual interest to enter into this Agreement to carry out operations of the Unit; and, WHEREAS, City and County agree to abide by all pertinent federal, state and local laws and regulations; NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS: ARTICLE I. 1.01. The purpose of this Agreement is to establish the responsibilities of the City (including BPD) and the County (including JCSO) as members of the Unit in regard to the operation and maintenance of the above-identified helicopters,and CAALEUAGREEMENT.wpd Page 2 of 9 any helicopters which may be purchased or acquired by either BPD or JCSO during the term of this agreement. ARTICLE II. 2.01. The term of this Agreement shall be for a period of one (1) year from and after the date of execution hereof subject to other termination rights of the parties as established in this document. At the end of the initial one (1) year term, unless either party gives written notice of termination, this Agreement shall automatically be extended for up to two additional one (1) year terms. Either party may terminate this Agreement upon thirty (30) days written notice to the other party. ARTICLE III. 3.01. Equipment, hardware and other non-expendable items (except the helicopters) used during the performance of this Agreement may be owned by either the City (through BPD) or the County (through JCSO). Upon termination of this Agreement, ownership and possession of equipment, hardware and other non- expendable items(otherthan the helicopters and other items received from U.S. military or other U.S. agencies) will revert to their respective owner (BPD or JCSO) unless otherwise agreed to by the parties. All parties participating in operation of the Unit may provide property to the Unit for its participants' use from time-to-time during performance of this Agreement, and it is understood CAALEUAGREEMENT.wpd Page 3 of 9 that ownership of such property will be retained by the respective party unless otherwise agreed in writing. 3.02. If, upon termination of this Agreement, equipment, hardware, or other non- expendable items cannot be returned to the agency that provided them, the items may be sold, upon agreement and in compliance with all appropriate statutes, and the proceeds of the sale of those items dispersed to the BPD or JCSO in proportion to their original investment in the equipment, hardware or other non-expendable items. 3.03. If donated or surplus equipment, hardware, or other non-expendable items are obtained at no cost to BPD or JCSO (i.e., surplus government property) and those items are sold or otherwise disposed of in compliance with all appropriate statutes, any proceeds from that sale or disposition shall be dispersed to BPD and JCSO at a ratio of 50/50. Proceeds from those sales shall be returned to the appropriate funds account of the City (BPD) or County (JCSO). ARTICLE IV. 4.01. The Sheriff(of the County)shall,with approval of the Chief(of the City), appoint an individual who shall be designated the "Chief Mechanic" and who shall be responsible for arranging for and supervising all maintenance of the helicopters. The Chief Mechanic shall provide such reports to the Sheriff and Chief as they deem necessary. CAALEUAGREEMENT.wpd Page 4 of 9 4.02. The expense of supplies, parts, and fuel needed for the maintenance and operation of the helicopters, excluding any pilot training, shall be shared by the City and County at a ratio of 50/50 unless otherwise agreed in writing. All expenses associated with the training and equipping of pilots shall be the responsibility of their respective agencies. 4.03. The purchase of supplies, parts, etc., needed for maintenance and/or operation of the helicopters shall be through the County's purchasing system, unless otherwise agreed to by the City and County. Any purchase in excess of $500.00 shall require the prior approval of the Sheriff and Chief. 4.04. The Sheriff shall, on a periodic basis agreed to by the Chief, provide to BPD an itemized accounting of all costs and expenses related to operations of the helicopters. The Sheriff shall submit to BPD itemized invoices setting forth any reimbursable expenses and BPD shall make payment to JCSO(or a designated vendor)within thirty (30) days of receipt by BPD of such invoices. If any items in the invoice submitted by JCSO are disputed by BPD for any reason, including lack of supporting documentation, BPD shall temporarily delete the disputed item and pay the remaining amount of the invoice. BPD shall promptly notify JCSO of the dispute and request clarification and/or remedial action. After the dispute has been resolved, JCSO shall include the disputed amount on any C:WLEUAGREEMENT.wpd Page 5 of 9 subsequent regularly scheduled invoice or on a special invoice for the disputed item only. ARTICLE V. 5.01. The Sheriff(of the County)shall,with approval of the Chief(of the City), appoint an individual who shall be responsible for the operation of the Unit and shall be designated as the "Unit Commander." The Unit Commander shall provide such reports to the Sheriff and Chief as they deem necessary. 5.02. The City and County agree that any personnel assigned to operation of the Unit will be subject to the disciplinary rules, operating procedures and professional standards of their respective agencies and also subject to disciplinary rules, operating procedures, and professional standards established for the Unit. Where there is a conflict between the disciplinary rules, operating procedures or professional standards of the individual's agency and the Unit,the respective disciplinary rules, operating procedures and professional standards of the employee's agency shall control. 5.03. The City and County agree that any personnel assigned to the operation of the Unit shall at all times be and remain employees of their respective agencies. All wage and benefit costs associated with assigned personnel shall be the responsibility of their respective agencies. CAALEUAGREEMENT.wpd Page 6 of 9 ARTICLE VI. 6.01. That portion of any asset forfeitures, seizures, confiscations, etc. which the Sheriff and Chief agree is directly attributable to operations/missions of the Unit shall be shared on a 50/50 ratio between City and County. All such shared monies or funds seized or the proceeds of the sale of any assets or property seized, forfeited, confiscated, or otherwise obtained shall, when allocated, be placed in the asset forfeiture fund or, if provided for or required by statute or ordinance, any appropriate fund of those respective agencies. ARTICLE VII. 7.01. Insurance. (a) Tort Claims - City and County, as political subdivisions, are governed by the Texas Tort Claims Act, Chapter 101.001, et seq., Civil Practice and Remedies Code. City and County warrant and represent to each other that they are self-insured or commercially insured for all claims failing within the Texas Tort Claims Act. (b) Each party to this Agreement agrees that it shall have no liability whatsoever for the acts oromissions of an individual employed byanother party, regardless of where the individual's actions occur. Each party is solely responsible for the actions and/or omissions of its employees and officers. CAALEUAGREEMENT.wpd Page 7 of 9 (c) The parties agree that the helicopters which are the subject of this Agreement shall not be flown until such time as there is in force a broad form general liability insurance policy naming both County and City as insured and insuring all risks in the aggregate amount of one million and no/100 dollars ($1,000,000.00). The cost of such insurance shall be shared equally between County and City. Copies of the policy shall be furnished to both the City and County. ARTICLE Vill. 8.01. An operations manual for the Unit shall be drafted and approved by BPD and JCSO prior to any use of the helicopters identified in this Agreement. The manual, and any modifications or changes thereto, shall be jointly approved by the Sheriff and the Chief. ARTICLE IX. 9.01. Operations conducted by BPD or JCSO shall be considered to be joint operations, except for the purposes of civil or criminal liability, of BPD and JCSO unless otherwise agreed upon by JCSO and BPD. ARTICLE X. 10.01. This Agreement may only be amended by the mutual agreement of the parties hereto in writing and any amendments shall be attached to and incorporated into this Agreement. CAALEUAGREEMENT.wpd Page 8 of 9 ARTICLE XI. 11.01. In case any one or more of the provisions contained in this Agreement shall be held to be invalid illegal, or unenforceable in any respect, such validity, illegality or unenforceability shall not affect any other provision thereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. ARTICLE XII. 12.01. This Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the subject matter hereof, and no other agreement, statement or promise relating to the subject matter of this Agreement which is not contained herein shall be valid or binding. EXECUTED by the City this day of , 2006. EXECUTED by the County this S�-6-day of e,. , 2006. CITY OF BEAUMONT, TEXAS JEFFER N , TEXAS By: By: Kyle Hayes Carl Ft. Griffith, Jr. City Manager County Judge BEAUMONT POLICE DEPARTMENT JEFFERSON COUNTY SHERIFF'S OFFIC By: By Frank C. Coffin, Jr. G. 'Mitch Woods Police Chief Sheriff CAALEUAGREEMENT.wpd Page 9 of 9 RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager is hereby authorized to execute an interlocal agreement with Jefferson County for a Joint Airborne Law Enforcement Unit for an initial term of one year with two additional one-year renewal options. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 17th day of October, 2006. - Mayor Guy N. Goodson - c City of Beaumont CI Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Joris P. Colbert, City Engineer MEETING DATE: October 17, 2006 AGENDA MEMO DATE: October 05, 2006 REQUESTED ACTION: Council consider a resolution accepting maintenance of the water and sanitary sewer improvements in the Crescent on Walden Phase I Subdivision. RECOMMENDATION Administration recommends approval of the water and sanitary improvements for Section I,Lots 1-14; Section II, Lots 1-20; Section III, Lots 1-35;Section IV, Lots 1-14; Section V, Lots 1-8 and Section VI, Lots 1-10 in the Crescent on Walden Phase I Subdivision. The following are the private streets within the Crescent on Walden Phase I Subdivision. • Esplanade Road from Walden Road approximately 1983 linear feet north to the 3-OM-4P end of roadway markers. • Savannah Road from proposed Esplanade Road approximately 761 linear feet east to proposed East Service Loop. • South Service Loop from proposed Esplanade Road approximately 782 linear feet east to proposed East Service Loop. • East Service Loop from proposed Savannah Road approximately 1310 linear feet north to proposed North Service Loop. • North Service Loop from proposed East Service Loop approximately 556 linear feet west to proposed West Service Loop. • West Service Loop from proposed South Service Loop approximately 1160 linear feet north to proposed Water Edge Road. • Daniel Lane from proposed Esplanade Road approximately 458 linear feet east to proposed Pond Circle Road. • Pond Circle Road from proposed Daniel Lane approximately 1610 linear feet loop to proposed Daniel Lane. • Water Edge from proposed Esplanade Road approximately 780 linear feet east to and including the cul-de-sac. BACKGROUND The aforementioned improvements in the subdivision passed final inspection from the Engineering Division and Water Utilities Department on June 30, 2006. BUDGETARY IMPACT None. PREVIOUS ACTION None. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager, Public Works Director and City Engineer. CrescentPhlAgenda.wpd October 5,2006 HECESEN PH SE I Vicinity Map N.T.S. THE CRESCENT ON WALDEN PHASE I, SUBDIVISION RESOLUTION NO. WHEREAS,construction of the water and sanitary sewer improvements constructed in the private streets in the Crescent on Walden Phase I Subdivision, have been completed as follows: Water and Sanitary Sewer Improvements 1> Section I, Lots 1-14 1> Section 11, Lots 1-20 1> Section III, Lots 1-35 Section IV, Lots 1-14 Section V, Lots 1-8 Section VI, Lots 1-10 and; WHEREAS, the director of the Public Works and Engineering Department recommends that said improvements_meet city_standwds_and-q-uafify-far-acceptance-fog permanent maintenance, and the City Council is of the opinion that said improvements should be accepted and maintained by the City of Beaumont; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the above-referenced water and sanitary sewer improvements in the Crescent on Walden Phase I Subdivision are hereby accepted by the City of Beaumont and shall be continuously maintained by the City contingent upon filing of the final plat, complete with filings of dedication of all rights-of-way and easements required on the preliminary and final plats and installation of the streetlights. The streets and streetlights are not being accepted by the City of Beaumont for maintenance. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 17th day of October, 2006. - Mayor Guy N. Goodson - D City of Beaumont IL Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tom Warner, Public Works Director MEETING DATE: October 17, 2006 AGENDA MEMO DATE: October 12, 2006 REQUESTED ACTION: Council consider authorizing the City Manager to execute the renewal of a lease agreement for the Women's, Infants and Children (WIC) satellite office. RECOMMENDATION Administration recommends authorizing the City Manager to execute a three (3) year lease agreement with Oasis Car Wash, Inc. (Oasis) for the Public Health Department's WIC satellite office. BACKGROUND On November 1, 2003 the City originally entered into a three(3)year lease agreement with Oasis Car Wash, Inc. for the use of approximately 1,686 square feet of office space located at 5550 Eastex Freeway, Suite EE, Beaumont, Texas. The rental fee was$1,652.28 per month(including a fee of$219.18 for electricity) for the three-year term. The current lease expires October 31, 2006. The WIC office staff would like to remain in this location and the property owner has agreed to enter into another three-year lease. The new lease would begin November 1, 2006 and expire on October 31, 2009. Because of the rising cost of maintenance, electricity and tax expenses, the owner feels a modest increase is justified. Oasis proposes an increase from $1,652.28 per month to $1,653.10 per month during the first year (an increase of only $0.82 per month), $1,686.10 per month during the second year which represents a 2% increase, and $1,719.00 per month during the third year which represents another 2% increase. The total expenditure for the three-year term is $60,698.40. The City will be reimbursed by the Texas Department of State Health Services. Lease Agreement—WIC Office October 12, 2006 Page 2 Oasis will provide electricity,water, sewer,and trash services,building and grounds maintenance, pest control and parking lot maintenance. The City is responsible for phone service and custodial costs. The City may terminate the lease by giving Oasis thirty(30)days written notice should appropriate funds not be forthcoming from the State of Texas. A copy of the lease is attached for your review,and has been approved by the Texas Department of State Health Services. BUDGETARY IMPACT As consideration for the leased premises, the City agrees to pay a monthly rental fee of$1,653.10 for the first year, $1,686.10 per month for the second year, and $1,719 per month for the third year of the lease. The total of the three-year lease is $60,698.40. Expenditures for this lease are reimbursed by the Bureau of Nutrition Services through the State of Texas Department of Health WIC program. PREVIOUS ACTION None. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager, Public Works Director and Public Health Director. C:\Ducumnma.M ScninsWrenda\MY Dacu NWPD S\Lrvs IC-Ha10 DeAWIC U.2U06\g` imm-rc kau-200 pd RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager is hereby authorized to execute a three (3) year lease agreement with Oasis Car Wash, Inc. (Oasis) for property located at 5550 Eastex Freeway, Suite EE, Beaumont, Texas, for a total expenditure of $60,698.40 for the Women's, Infants and Children (WIC) satellite office. The lease agreement is substantially in the form attached hereto as Exhibit "A." PASSED BY THE CITY COUNCIL of the City of Beaumont this the 17th day of October, 2006. - Mayor Guy N. Goodson - i TEXAS ASSOCIATION OF REALTORS® COMMERCIAL LEASE USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORSO IS NOT AUTHORIZED. 0TOaa Maoelaeon at REALTORM Ine.200{ Table of Contents No. Paragraph Description Pg No. Paragraph Description Pic I. Parties 2 22. Holdover 10 2. . Leased Premises 2 23. Landlord's Lien &Security interest 10 3. Term 2 24. Assignment and Subletting 10 A. Tenn 25. Relocation 11 B. Delay of Occupancy 26. Subordination 11 4. Rent and Expenses 3 27. Estoppel Certificates 11 A. Base Monthly Rent 28. Casualty Loss 11 B. First Full Month's Rent 29. Condemnation 12 C. Prorated Rent 30. Attorney's Fees 12 D. Additional Rent 31. Representations 12 E. Place of Payment 32. Brokers 12 F. Method of Payment 33. Addenda 13 G. Late Charges 34. Notices 13 H. Returned Checks 35. Special Provisions 13 5. Security Deposit 4 36. Agreement of the Parties 14 6. Taxes 4 7. Utilities 4 8. Insurance 5 ADDENDA&EXHIBITS (check all that apply) 9. Use and Hours 5 10. Legal Compliance 6 @ EXhibitA-Self Fundlinq Lettgr 11. Signs 6 d Exhibit B-Diagram of Lease Space 12. Access By Landlord 7 ❑ Commercial Lease Addendum for Broker's Fee 13. Move-in Condition 7 ❑ Commercial Lease Expense Reimbursement 14. Move-Out Condition 7 Addendum 15. Maintenance and Repairs 7 ❑ Commercial Lease Addendum for Extension A. Cleaning I Option B. Conditions Caused by a Party a Commercial Lease Addendum for Percentage C. Repair&Maintenance Responsibility Rent D. Repair Persons ❑ Commercial Lease Parking Addendum E. HVAC Service Contract 0 Commercial Landlord's Rules and Regulations F. Common Areas ❑ Commercial Lease Guaranty G. Notice of Repairs ❑ Commercial Lease Right of First Refusal H. Failure to Repair Addendum 16. Alterations 9 ❑ Commercial Lease Addendum for Optional 17. Liens 9 Space 18. Liability 9 ❑ Commercial Leasehold Construction Addendum 19. Indemnity g ❑ 20. Default g ❑ 21. Abandonment, Interruption of Utilities, Removal of Property & Lockout 10 (TAR-2101)5-28-06 Initialed for Identification by Tenant: ,and Landlord: Page 1 of 14 Bums Properties,Inc.6845 Phelan, Beaumont TX 77706 Phone:(409)866-2398 Fax: (409)860-5208 Andrew R.Bums Cry of Beaumon Produced with ZlpFoen"'by RE For=Net,LLC 18025 Fifteen Mile Road,Clinton Township,Michigan 48035 www.zinform.com EXHIBIT "A" *e;r TEXAS ASSOCIATION OF REALTORS® COMMERCIAL LEASE USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORSO IS NOT AUTWRIZED. OT"m A"wbllm d REALTOMM,Im 2M 1. PARTIES:The parties to this lease are: Tenant: city of Beaumont ; and Landlord: Oasis Car Wash, Inc Debtor in BankruDtcv Case No 04-83367 in the Unit-ad states Bankruptcy Court Northern District of ,Texas 2. LEASED PREMISES: A. Landlord leases to Tenant the following described real property, known as the"leased premises,"along with all its improvements (Check only one box): a (1) Multiple-Tenant Property: Suite or Unit Number EE containing approximately 1686 square feet of rentable area in (project name) at 5550 Eastex Freeway Suite EE (address) in _ Beaumont (city), Jefferson (county), Texas, which is legally described on attached Exhibit or as follows: d (2) Sin -Tenant Property: The real property at: (address) in (city), (county), Texas, which is legally described on attached Exhibit or as follows: B. If Paragraph 2A(1)applies: (1) "Property" means the building or complex in which the leased premises are located, inclusive of any common areas, drives, parking areas, and walks; and (2) the parties agree that the rentable area of the leased premises may not equal the actual or useable area within the leased premises and may Include an allocation of common areas in the Property. 3. TERM: A. Term: The term of this lease Is 36 months and days, commencing on: November 1 2006 (Commencement Date) and ending on o t0ber 31 2009 (Expiration Date). (TAR-2101)5-26-06 Initialed for Identification by Tenant: ,and Landlord: Page 2 of 14 Produced with ZlpFonnrm by RE FormsNet.LLC 19025 Fifteen Mile Road,Clinton Township,Michigan 48035 wwwamorm.com Ciy of Beaumon 5550 Eastex Freeway, suite BE Commercial Lease concerning: Beaumont, Tx 77708 B. Delay of Occupancy: If Tenant is unable to occupy the leased premises on the Commencement Date because of construction on the leased premises to be completed by Landlord that is not substantially complete or a prior tenant's holding over of the leased premises, Landlord will not be liable to Tenant for such delay and this lease will remain enforceable. In the event of such a delay, the Commencement Date will automatically be extended to the date Tenant is able to occupy the Property and the Expiration Date will also be extended by a like number of days, so that the length of this lease remains unchanged. If Tenant is unable to occupy the leased premises after the 90th day after the Commencement Date because of construction on the leased premises to be completed by Landlord that is not substantially complete or a prior tenant's holding over of the leased premises, Tenant may terminate this lease by giving written notice to Landlord before the leased premises become available to be occupied by Tenant and Landlord will refund to Tenant any amounts paid to Landlord by Tenant. This Paragraph 313 does not apply to any delay in occupancy caused by cleaning or repairs. C. Unless the parties agree otherwise, Tenant is responsible for obtaining a certificate of occupancy for the leased premises if required by a governmental body. 4. RENT AND EXPENSES: A. Base Monthly Rent: On or before the first day of each month during this lease, Tenant will pay Landlord base monthly rent as described on attached Exhibit or-as follows: from November 1, 2006 to October 31, 2007 $ 1,653.10 , from November 1, 2007 to October 31, 2008 $ 11686.10 ; from November 1 2008 to October 31, 2009 $ ; from to $ ; from to $ B. First Full Month's Rent:The first full base monthly rent is due on or before November 1, 2006 C. Prorated Rent: If the Commencement Date is on a day other than the first day of a month, Tenant will pay Landlord as prorated rent, an amount equal to the base monthly rent multiplied by the following fraction: the number of days from the Commencement Date to the first day of the following month divided by the number of days in the month in which this lease commences. The prorated rent is due on or before the Commencement Date, D. Additional Rent: In addition to the base monthly rent and prorated rent, Tenant will pay Landlord all other amounts, as provided by the attached (Check all that apply.): ❑ (1) Commercial Expense Reimbursement Addendum ❑ (2) Commercial Percentage Rent Addendum ❑ (3) Commercial Parking Addendum ❑ (4) All amounts payable under the applicable addenda are deemed to be "rent" for the purposes of this lease. E. Place of Payment: Tenant will remit all amounts due Landlord under this lease to the following person at the place stated or to such other person or place as Landlord may later designate in writing: Name: .oasis Car Wash Inc.- Debtor, c/o Burns Properties Inc Address: P.O. Box 3723 Beaumont Texas 77704 F. Method of Payment: Tenant must pay all rent timely without demand, deduction, or offset, except as Permitted by law or this lease. If Tenant fails to timely pay any amounts due under this lease or if any check of Tenant is returned to Landlord by the institution on which it was drawn, Landlord after (TAR-2101)5-26-06 initialed for Identification by Tenant: ,and Landlord: Page 3 of 14 Produced with ZipFormTm by RE FormsNet,LLC 18025 Fifteen Mile Road,Clinton Township.Michigan 48035 www.zipform.com Ciy of Beaumon 5550 Eastex Freeway, Suite BE Commercial Lease concerning: Beaumont. TA 77708 providing written notice to Tenant may require Tenant to pay subsequent amounts that become due under this lease in certified funds. This paragraph does not limit Landlord from seeking other remedies under this lease for Tenant's failure to make timely payments with good funds. G. Late Charges: If Landlord does not actually receive a rent payment at the designated place of payment within 5 days after the date it is due, Tenant will pay Landlord a late charge equal to 5% of the amount due. In this paragraph, the mailbox is not the agent for receipt for Landlord: The late charge is a cost associated with the collection of rent and Landlord's acceptance of a late charge does not waive Landlord's right to exercise remedies under Paragraph 20. H. Returned Checks:Tenant will pay$25.00 (not to exceed$25)for each check Tenant tenders to Landlord which is returned by the institution on which it is drawn for any reason, plus any late charges until Landlord receives payment. 5. SECURITY DEPOSIT: A. Upon execution of this lease,Tenant will pay$N/A to Landlord as a security deposit. B. Landlord may apply the security deposit to any amounts owed by Tenant under this lease. If Landlord applies any part of the security deposit during any time this lease is in effect to amounts owed by Tenant, Tenant must, within 10 days after receipt of notice from Landlord, restore the security deposit to the amount stated. C. Within 60 days after Tenant surrenders the leased premises and provides Landlord written notice of Tenant's forwarding address, Landlord will refund the security deposit less any amounts applied toward amounts owed by Tenant or other charges authorized by this lease. 6. TAXES: Unless otherwise agreed by the parties, Landlord will pay all real property ad valorem taxes assessed against the leased premises. 7. UTILITIES: A. The party designated below will pay for the following utility charges to the leased premises and any connection charges for the utilities. (Check all that apply.) (1) Water N/A Landlord Tena ( ) war x (3) Electric (4) Gas d a d (5) Telephone El C3(6) Trash x (7) Cable 0 El (8) 0 d E) (9) All other utilities ❑ El a B. The party responsible for the charges under Paragraph 7A will pay the charges directly to the utility service provider. The responsible party may select the utility service provider except that if Tenant selects the provider, any access or alterations to the Property or leased premises necessary for the utilities may be made only with Landlord's prior consent, which Landlord will not unreasonably withhold. If Landlord incurs any liability for utility or connection charges for which Tenant is responsible to pay and Landlord pays such amount, Tenant will immediately upon written notice from Landlord reimburse Landlord such amount. (TAR-2101)5-26-06 Initialed for Identification by Tenant ,and Landlord: Page 4 of 14 Produced with ZlpFormTM by RE Form"t,U.0 18025 Fifteen Mile Road,Clinton Township,Michigan 48035 www.zlpform.com Ciy of Beaumon a. 5550 Eastex Freeway, Suite EE Commercial Lease concerning: Beaumont TX 77708 C. Notice: Tenant should determine if all necessary utilities are available to the leased premises and are adequate for Tenant's intended use. D. After-Hours HVAC Charges: "HVAC services" means heating, ventilating, and air conditioning of the leased premises. (Check one box only.) a (1) Landlord is obligated to provide the HVAC services to the leased premises only during the Property's operating hours specified under Paragraph 9C. ❑ (2) Landlord will provide the HVAC services to the leased premises during the operating hours specified under Paragraph 9C for no additional charge and will, at Tenant's request, provide HVAC services to the leased premises during other hours for an additional charge'of$ per hour. Tenant will pay Landlord the charges under this paragraph immediately upon receipt of Landlord's invoice. Hourly charges are charged on a half-hour basis. Any partial hour will be rounded up to the next half hour. Tenant will comply with Landlord's procedures to make a request to provide the additional HVAC services under this paragraph. ❑ (3) Tenant will pay for the HVAC services under this lease. 8. INSURANCE: A. During all times this lease is in effect, Tenant must, at Tenant's expense, maintain in full force and effect from an Insurer authorized to operate in Texas: (1) public liability insurance in an amount not less than $1,000,000.00 on an occurrence basis naming Landlord as an additional insured; and (2) personal property damage insurance for Tenant's business operations and contents on the leased premises in an amount sufficient to replace such contents after a casualty loss. B. Before the Commencement Date, Tenant must provide Landlord with a copy of insurance certificates evidencing the required coverage. If the insurance coverage is renewed or changes in any manner or degree at any time this lease is in effect, Tenant must, not later than 10 days after the renewal or change, provide Landlord a copy of an insurance certificate evidencing the renewal or change. C. If Tenant fails to maintain the required insurance in full force and effect at all times this lease is in effect, Landlord may: (1) purchase insurance that will provide Landlord the same coverage as the required Insurance and Tenant must immediately reimburse Landlord for such expense; or (2) exercise Landlord's remedies under Paragraph 20. D. Unless the parties agree otherwise, Landlord will maintain in full force and effect insurance for: (1) fire and extended coverage in an amount to cover the reasonable replacement cost of the improvements of the Property; and (2) any public liability insurance in an amount that Landlord determines reasonable and appropriate. E. If there is an increase in Landlord's insurance premiums for the leased premises or Property or its contents that is caused by Tenant, Tenant's use of the leased premises, or any improvements made by or for Tenant, Tenant will, for each year this lease Is in effect, pay Landlord.the increase Immediately , after Landlord notifies Tenant of the Increase. Any charge to Tenant under this Paragraph 8E will be equal to the actual amount of the increase in Landlord's insurance premium. 9. USE AND HOURS: A. Tenant may use the leased premises for the following purpose and no other a satellite office for operating The womene infants and childrenn Program lwict operated by The City of Beaumont. (TAR-2101)5-26-06 Initialed for Identification by Tenant: ,and Landlord: page.5 of 14 Produced with 21pForm-by RE Forrnstret.LLC 18025 Fifteen Mile Rood.Clinton Township.M'lchlpan 48035 JpQQ N zlpfbrrn,�orn Ciy of Beaumm 5550 Eastex Freeway, Suite BE Commercial Lease concerning: Beaumont TX 77708 B. Unless otherwise specified in this lease, Tenant will operate and conduct its business in the leased premises during business hours that are typical of the industry in which Tenant represents it operates. C. The Property maintains operating hours of (specify hours, days of week, and if inclusive or exclusive of weekends and holidays): Monday through Friday, 7:00 AM to 6.00PM 10. LEGAL COMPLIANCE: A. Tenant may not use or permit any part of the leased premises or the Property to be used for (1) any activity which is a nuisance or is offensive, noisy,or dangerous; (2) any activity that Interferes with any other tenant's normal business operations or Landlord's management of the Property; (3) any activity that violates any applicable law, regulation, zoning ordinance, restrictive covenant, governmental order, owners' association rules, tenants' association rules, Landlord's rules or regulations, or this lease; (4) any hazardous activity that would require any insurance premium on the Property or leased premises to increase or that would void any such insurance; (5) any activity that violates any applicable federal, state, or local law, including but not limited to those laws related to air quality, water quality, hazardous materials, wastewater, waste disposal, air emissions, or other environmental matters; (6) the permanent or temporary storage of any hazardous material;or (7) - B. "Hazardous material" means any pollutant, toxic substance, hazardous waste, hazardous material, hazardous substance, solvent, or oil as defined by any federal, state, or local environmental law, regulation, ordinance, or rule existing as of the date of this lease or later enacted. C. Landlord does not represent or warrant that the leased premises or Property conform to applicable restrictions, zoning ordinances, setback lines, parking requirements, impervious ground cover ratio requirements, and other matters that may relate to Tenant's intended use. Tenant must satisfy itself that the leased premises may be used as Tenant intends by independently investigating all matters related to the use of the leased premises or Property. Tenant agrees that it is not relying on any warranty or representation made by Landlord Landlord's agent or any broker concemina the use of the leased premises or Property_ 11.SIGNS: A. Tenant may not post or paint any signs at, on, or about the leased premises or Property without Landlord's written consent. Landlord may remove any unauthorized sign, and Tenant will promptly, reimburse Landlord for its cost to remove any unauthorized sign. B. Any authorized sign must comply with all laws, restrictions, zoning ordinances, and any govemmental order relating to signs on the leased premises or Property. Landlord may temporarily remove any authorized sign to complete repairs or alterations to the leased premises or the Property. C. By providing written notice to Tenant before this lease ends, Landlord may require Tenant, upon move-out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or all signs that were placed on the Property or leased premises by or at the request of Tenant. Any signs that Landlord does not require Tenant to remove and that are fixtures, become the property of the Landlord and must be surrendered to Landlord at the time this lease ends. (TAR-2101)5-26-06 Initialed for Identification by Tenant ,and Landlord: Page 6 of 14 Produced with ZlpFormTM by RE FormsNet.LLC 18025 Fifteen We Road.Clinton Townehlp.MkNgan 48035 wwwzioform.00m ciy of Seaumon 5550 Eastex Freeway, Suite EE Commercial Lease concerning: ReaU MAn* Tx 77708 12.ACCESS BY LANDLORD: A. During Tenant's normal business hours Landlord may enter the leased premises for any reasonable purpose, Including but not limited to purposes for repairs, maintenance, alterations, and showing the leased premises to prospective tenants or purchasers. Landlord may access the leased premises after Tenant's normal business hours if: (1)entry is made with Tenant's permission; or(2) entry is necessary to complete emergency repairs. Landlord will not unreasonably interfere with Tenant's business operations when accessing the leased premises. B. During the last 30 days of this lease, Landlord may place a"For Lease"or similarly worded sign in the leased premises. 13. MOVE-IN CONDITION: Tenant has inspected the leased.premises and accepts it in its present (as-is) condition unless expressly noted otherwise in this lease. Landlord and any aaent have made no express or implied warranties as to the condition or permitted use of the leased premises or Property. 14.MOVE-OUT CONDITION AND FORFEITURE OF TENANT'S PERSONAL PROPERTY: A. At the time this lease ends, Tenant will surrender the leased premises in the same condition as when received, except for normal wear and tear. Tenant will leave the leased premises in a clean condition free of all trash, debris, personal property, hazardous materials, and environmental contaminants. B. If Tenant leaves any personal property in the leased premises after Tenant surrenders possession of the leased premises, Landlord may: (1) require Tenant, at Tenant's expense, to remove the personal property by providing written notice to Tenant; or(2) retain such personal property as forfeited property to Landlord. C. "Surrender" means vacating the leased premises and returning all keys and access devices to Landlord. "Normal wear and tear" means deterioration that occurs without negligence, carelessness, accident, or abuse. D. By providing written notice to Tenant before this lease ends, Landlord may require Tenant, upon move-out and at Tenants expense, to remove, without damage to the Property or leased premises, any or all fixtures that were placed on the Property or leased premises by or at the request of Tenant. Any fixtures that Landlord does not require Tenant to remove become the property of the Landlord and must be surrendered to Landlord at the time this lease ends. 15.MAINTENANCE AND REPAIRS: A. Cleanina: Tenant must keep the leased premises clean and sanitary and promptly dispose of all garbage In appropriate receptacles. ❑ Landlord a Tenant will provide, at its expense, Janitorial services to the leased premises that are customary and ordinary for the property type. Tenant will maintain any grease trap on the Property which Tenant uses, including but not limited to periodic emptying and cleaning, as well as making any modification to the grease trap that may be necessary to comply with any applicable law. B. Repairs of Conditions Caused by a Party: Each party must promptly repair a condition in need of repair that is caused, either intentionally or negligently, by that party or that party's guests, patrons, invitees, contractors or permitted subtenants. C. Repair and Maintenance Responsibility: Except as otherwise provided by this Paragraph 15, the party designated below, at its expense, is responsible to maintain and repair the following specified items in the leased premises (if any). The specified items must be maintained in clean and good operable condition. If a governmental regulation or order requires a modification to any of the specified Items, the party designated to maintain the item must complete and pay the expense of the modification. The (TAR-2101)5-26-06 Initialed for Identification by Tenant: ,and Landlord: Page 7 of 14 Produced with ZipFortnn'by RE FomW4et,LLC 18025 Fifteen Mile Road.Clinton Township,Michigan 48035 wpp 2ioform.com Ciy of Beaumon 5550 Eastex Freeway, Suite BE Commercial lease concerning: _Beaumont. Tx 77708 specified items include and relate only to real property in the leased premises. Tenant is responsible for the repair and maintenance of its personal property. (Check all that apply.) /A Landlord Tenant (1) Foundation, exterior walls, roof, and other structural components ❑ ❑ (2) Glass and windows x (3) Fire protection equipment and fire sprinkler systems d d d (4) Exterior & overhead doors, including closure devices, molding ® ❑ ❑ locks, and hardware (5) Grounds maintenance, including landscaping and irrigation ❑ a ❑ systems (6) Interior doors, including closure devices, frames, molding, locks, ❑ Q ❑ and hardware (7) Parking areas and walks ❑ ❑ (8) Plumbing systems, drainage systems, electrical systems, and ❑ a ❑ mechanical systems, except systems or items specifically designated otherwise (9) Ballast and lamp replacement ❑ a ❑ (10) Heating, Ventilation and Air Conditioning (HVAC)systems ❑ d ❑ 01) Signs and lighting: (a) Pylon (b) Facia a (c) Monument ❑ ❑ (d) Door/Suite ❑ ❑ d (12) Extermination and pest control, excluding wood-destroying insects ❑ a ❑ (13) Fences and Gates g g � � El(14) Storage yards and storage buildings (15) Wood-destroying insect treatment and repairs ❑ a 11(16) Cranes and related systems ❑ El(17) ❑ El (18 )❑ (19) All other items and systems. O ❑ D. Repair Persons: Repairs must be completed by trained, qualified, and insured repair persons. E. HVAC Service Contract: If Tenant maintains the HVAC system under Paragraph 15C(10), Tenant❑ is ❑ is not required to maintain, at its expense, a regularly scheduled maintenance and service contract for the HVAC system. The maintenance and service contract must be purchased from a HVAC maintenance company that regularly provides such contracts to similar properties. If Tenant fails to maintain a required HVAC maintenance and service contract in effect at all times during this lease, Landlord may do so and charge Tenant the expense of such a maintenance and service contract or exercise Landlord's remedies under Paragraph 20. F. Common Are Landlord will maintain any common areas in the Property in a manner as Landlord determines to be in the best interest of the Property, 'Landlord will maintain any elevator and signs in the common area. Landlord may change the size, dimension, and location of any common areas, provided that such change does not materially impair Tenant's use and access to the leased premises. Tenant has the non-exclusive license to use the common areas in compliance with Landlord's rules and restrictions. Tenant may not solicit any business in the common areas or interfere with any other person's right to use the common areas. This paragraph does not apply if Paragraph 2A(2)applies. (TAR-2101)5-26-06 Initialed for Identification by Tenant: ,and Landlord: Page 8 of 14 Produced with ZlpFormTM by RE FormsNet,LLC 18025 FHteen Mile Road,Clinton Township,Michigan 48035 wwwzinform.com Ciy of Eleaumon 5550 .Eastex Freeway, Suite BE Commercial Lease concerning: Beaumont TX 77708 G. Notice of Repairs: Tenant must promptly.notify Landlord of any item that is in need of repair and that is Landlord's responsibility to repair.All requests for repairs to Landlord must be in writing. H. Failure to Repair: Landlord must make a repair for which Landlord is responsible within a reasonable period of time after Tenant provides Landlord written notice_of the needed repair. If Tenant fails,to repair or maintain an item for which Tenant is responsible within 10-days after Landlord provides Tenant written notice of the needed repair or maintenance, Landlord may: (1) repair or maintain the Item, without liability for any damage or loss to Tenant, and Tenant must immediately reimburse Landlord for the cost to repair or maintain;or(2)exercise Landlord's remedies under Paragraph 20. 16. ALTERATIONS: A. Tenant may not alter, improve, or add to the Property or the leased premises without Landlord's written consent. Landlord will not unreasonably withhold consent for the Tenant to make reasonable non-structural alterations, modifications, or improvements to the leased premises. B. Tenant may not alter any locks or any security devices on the Property or the leased premises without Landlord's consent. If Landlord authorizes the changing, addition, or rekeying of any locks or other security devices,Tenant must immediately deliver the new keys and access devices to Landlord. C. If a governmental order requires alteration or modification to the leased premises,the party obligated to maintain and repair the item to be modified or altered as designated in Paragraph 15.will, at its expense, modify or alter the item in compliance with the order and in compliance with Paragraphs 16A and 17. D. Any alterations, improvements, fixtures or additions to the Property or leased premises installed by either party during the term of this lease will become Landlord's property and must be surrendered to Landlord at the time this lease ends, except for those fixtures Landlord requires Tenant to remove under Paragraph 11 or 14 or if the parties agree otherwise in writing. 17. LIENS: Tenant may not do anything that will cause the title of the Property or leased premises to be encumbered in any way. If Tenant causes a lien to be filed against the Property or leased premises, Tenant will within 20 days after receipt of Landlord's demand: (1) pay the lien and have the lien released of record; or(2)take action to discharge the lien. Tenant will provide Landlord a copy of any release Tenant obtains pursuant to this paragraph. 18. LIABILITY: To the extent permitted by law Landlord Is NOT responsible to Tenant or Tenant's employees patrons, guests or invitees for any damages iniuries or losses to person or property caused by A. an act, omission, or neglect of* Tenant, agents Tenant's quest: Tenant's employees: Tenant's 12a rods: Tenant's invitees: or any other tenant on the Property B. fire.,-.flood, water leaks ice snow, hail winds explosion smoke riot strike interruption of utilities theft burglary, robbery, assault vandalism other persons environmental contaminants or other occurrences or casualty losses 19. . INDEMNITY: Each party will indemnify and hold the other party harmless from any property damage. nersonal iniury. suits, actions liabilities damages cost of repairs or service to,the leased premises or Property, or any other loss caused negligently or otherwise by that party or that party's employees patrons_,guests, or invitees 20. DEFAULT: A. If Landlord fails to comply with this lease within 30 days after Tenant notifies Landlord of Landlord's failure to comply, Landlord will be in default and Tenant may seek any remedy provided by law. If, however, Landlord's non-compliance reasonably requires more than 30 days to cure, Landlord will not be in default if the cure is commenced within the 30-day period and is diligently pursued. (TAR-2101)5-26-06 Initialed for Identification by Tenant: ,and Landlord: Page 9 of 14 Produced with ZipFormTm by RE FormsNet,LLC 18025 Fifteen Miie Road,ciinton Township,Michigan 48035 www.zioform.com cly of Beauma 5550 Eastex Freeway, Suite EE Commercial Lease conceming: Beaumont. Tx 77708 B. If Landlord does not actually receive at the place designated for payment any rent due under this lease within 5 days after it is due, Tenant will be in default. If Tenant fails to comply with this lease for any other reason within 10 days after Landlord notifies Tenant of its failure to comply, Tenant will be in default. C. If Tenant is in default, Landlord may: (i) terminate Tenant's right to occupy the leased premises by providing Tenant with at least 3 days written notice; and (ii) accelerate all rents which are payable during the remainder of this lease or any renewal period without notice or demand. Landlord will attempt to mitigate any damage or loss caused by Tenant's breach by using commercially reasonable means. If Tenant is in default, Tenant will be liable for: (1) any lost rent; (2) Landlord's cost of reletting the leased premises, including brokerage fees, advertising fees, and other fees necessary to relet the leased premises; (3) repairs to the leased premises for use beyond normal wear and tear, (4) all Landlord's costs associated with eviction of Tenant, such as attorney's fees, court costs, and prejudgment interest; (5) all Landlord's casts associated with collection of rent such as collection fees, late charges, and returned check charges; (6) cost of removing any of Tenant's equipment or fixtures left on the leased premises or Property; (7) cost to remove any trash, debris, personal property, hazardous materials, or environmental contaminants left by Tenant or Tenant's employees, patrons, guests, or invitees in the leased premises or Property; (8) cost to replace any unretumed keys or access devices to the leased premises, parking areas, or Property; (9) any other recovery to which Landlord may be entitled under this lease or under law. 21. ABANDONMENT, INTERRUPTION OF UTILITIES, REMOVAL OF PROPERTY, AND LOCKOUT: Chapter 93 of the Texas Property Code governs the rights and obligations of the parties with regard to: (a) abandonment of the leased premises; (b) interruption of utilities; (c) removal of Tenant's property; and (d) "lock-out"of Tenant. 22. HOLDOVER: If Tenant fails to vacate the leased premises at the time this lease ends, Tenant will become a tenant-at-will and must vacate the leased premises immediately.upon receipt of demand from Landlord. No holding over by Tenant, with or without the consent of Landlord, will extend this lease. Tenant will indemnify Landlord and any prospective tenants for any and all damages caused by the holdover. Rent for any holdover period will be 2 times the base monthly rent plus any additional rent calculated on a daily basis and will be immediately due and payable daily without notice or demand. 23. LANDLORD'S LIEN AND SECURITY INTEREST: To secure Tenant's performance under this lease, Tenant rants to Landlord a lien and secun interest a ainst all of Tenant's nonexem t ersonal ro e that is in the leased oremises or Property. This lease is a security agreement for the purposes of the Uniform Commercial Code. Landlord may file a copy of this lease as a financing statement. 24. ASSIGNMENT AND SUBLETTING: Landlord may assign this lease to any subsequent owner of the Property. Tenant may not assign this lease or sublet any part of the leased premises without Landlord's written consent. An assignment of this lease or subletting of the leased premises without Landlord's written consent is voidable by Landlord. If Tenant assigns this lease or sublets any part of the leased premises, Tenant will remain liable for all of Tenant's obligations under this lease regardless if the assignment or sublease is made with or without the consent of Landlord. (TAR-2101)3-26-06 Initialed for Identification by Tenant: ,and Landlord: Page 10 of 14 Produced with ZlpFomlTM by RE Form"t,LLC 18025 Fifteen Mile Road,Clinton Township,Michigan 48035 wwwaom.com Ciy of Beaumon 5550 Eastex Freeway, Suite HE Commercial Lease concerning: Sea=ont TX 77708 25. RELOCATION: d A. By providing Tenant with not less than 90 days advanced written notice, Landlord may require Tenant to relocate to another location in the Property, provided that the other location is equal in size or larger than the leased premises then occupied by Tenant and contains similar leasehold improvements. Landlord will pay Tenant's reasonable out-of-pocket moving expenses for moving to the other location. Moving expenses" means reasonable expenses payable to professional movers, utility companies for connection and disconnection fees, wiring companies for connecting and disconnecting Tenant's office equipment required by the relocation, and printing companies for reprinting Tenant's stationary and business cards. A relocation of Tenant will not change or affect any other provision of this lease that is then in effect, including rent and reimbursement amounts, except that the description of the suite or unit number will automatically be amended. ❑ B. Landlord may not require Tenant to relocate to another location in the Property without Tenants prior consent. 26. SUBORDINATION: A. This lease and Tenant's leasehold interest are and will be subject, subordinate, and inferior to: (1) any lien, encumbrance, or ground lease now or hereafter placed on the leased premises or the Property that Landlord authorizes; (2) all advances made under any such lien, encumbrance, or ground lease; (3) the interest payable on any such lien or encumbrance; (4) any and all renewals and extensions of any such lien, encumbrance, or ground lease; (5) any restrictive covenant affecting the leased premises or the Property; and (6) the rights of any owners'association affecting the leased premises or Property. B. Tenant must, on demand, execute a subordination, attomment, and non-disturbance agreement that Landlord may request that Tenant execute, provided that such agreement is made on the condition that this lease and Tenant's rights under this lease are recognized by the lien-holder. 27. ESTOPPEL CERTIFICATES: Within 10 days after receipt of a written request from Landlord, Tenant will execute and deliver to Landlord an estoppel certificate that identifies the terms and conditions of this lease. 28. CASUALTY LOSS: A. Tenant must immediately notify Landlord of any casualty loss in the leased premises. Within 20 days after receipt of Tenant's notice of a casualty loss, Landlord will notify Tenant if the leased premises are less than or more than 50% unusable, on a per square foot basis, and if Landlord can substantially restore the leased premises within 120 days after Tenant notifies Landlord of the casualty loss. B. If the leased premises are less than 50% unusable and Landlord can substantially restore the leased Premises within 120 days after Tenant notifies Landlord of the casualty, Landlord will restore the leased Premises to substantially the same condition as before the casualty. If Landlord fails to substantially restore within the time required, Tenant may terminate this lease. C. If the leased premises are more than 50% unusable and Landlord can substantially restore the leased Premises within 120 days after Tenant notifies Landlord of the casualty,Landlord may: (1)terminate this lease; or (2) restore the leased premises to substantially the same condition as before the casualty. If Landlord chooses to restore and does not substantially restore the leased premises within the time required, Tenant may terminate this lease. D. If Landlord notifies Tenant that Landlord cannot substantially restore the leased premises within 120 days after Tenant notifies Landlord of the casualty loss, Landlord may: (1) choose not to restore and terminate this lease; or (2) choose to restore, notify Tenant of the estimated time to restore, and give Tenant the option to terminate this lease by notifying Landlord within 10 days. (TAR-2101)5-26-06 Initialed for Identification by Tenant: ,and Landlord: Page 11 of 14 Produced with ZlpFormTM by RE FormsNet,LLC 18025 Fdteen we Road,clinton Township,Michigan 48035 www.zipform.com Ciy of ataumon 5550 Eastex Freeway, Suite EE Commercial Lease concerning: Beaumont, TX 77708 E. If this lease does not terminate because of a casualty loss, rent will be reduced from the date Tenant notifies Landlord of the casualty loss to the date the leased premises are substantially restored by an amount proportionate to the extent the leased premises are unusable. 29. CONDEMNATION: If after a condemnation or purchase in lieu of condemnation the leased premises are totally unusable for the purposes stated in this lease, this lease will terminate. If after a condemnation or purchase in lieu of condemnation the leased premises or Property are partially unusable for the purposes of this lease, this lease will continue and rent will be reduced in an amount proportionate to the extent the leased premises are unusable. Any condemnation award or proceeds in lieu of condemnation are the property of Landlord and Tenant has no claim to such proceeds or award. Tenant may seek compensation from the condemning authority for its moving expenses and damages to Tenant's personal property. 30. ATTORNEY'S FEES: Any person who is a prevailing party in any legal proceeding brought under or related to the transaction described in this lease is entitled to recover prejudgment interest, reasonable attorney's fees, and all other costs of litigation from the nonprevailing party. 31. REPRESENTATIONS: A. Tenant's statements in this lease and any application for rental are material representations relied upon by Landlord. Each party signing this lease represents that he or she is of legal age to enter into a binding contract and is authorized to sign the lease. If Tenant makes any misrepresentation in this lease or in any application for rental, Tenant is in default. B. Landlord is not aware of any material defect on the Property that would affect the health and safety of an ordinary person or any environmental hazard on or affecting the Property that would affect the health or safety of an ordinary person, except: C. Each party and each signatory to this lease represents that: (1) it is not a person named as a Specially Designated National and Blocked Person as defined in Presidential Executive Order 13224; (2) it is not acting, directly or indirectly, for or on behalf of a Specially Designated and Blocked Person; and (3) is not arranging or facilitating this lease or any transaction related to this lease for a Specially Designated and Blocked Person. Any party or any signatory to this lease who is a Specially Designated and Blocked person will indemnify and hold harmless any other person who relies on this representation and who suffers any claim, damage, loss, liability or expense as a result of this representation. 32. BROKERS: A. The brokers to this lease are: Cooperating Broker Burns Proverties. Inc. ' License No. Principal Broker 0424819 License No. 6845 Phelan Blvd. Address Beaumont. Texas 77706 Address Phone (4091 866-2398 (409) 860-5206 Fax Phone Fax E-mail aburasQburnaRropertiesinc com E-mail Cooperating Broker represents Tenant. Principal Broker: (Check only one box) W represents Landlord only. ❑ representsTenant only. ❑ is an intermediary between Landlord and Tenant. (TAR-2101)5-26-06 Initialed for Identification by Tenant: ,and Landlord: Page 12 of 14 Produced with ZIPForm-by RE FormsWt,LLC 18025 Fdlleen Mile Road,Clinton Township,Michigan 48035 www.zjplbrm.com Ciy of Beaumon 5550 Eastex Freeway, Suite HE Commercial Lease concerning: Beaumont TX 77708 B. Fees: 0 (1) Principal Broker's fee will be paid according to: (Check only one box). W (a) a separate written commission agreement between Principal Broker and: .O Landlord ❑Tenant. ❑ (b) the attached Addendum for Brokers Fee. ❑ 2) Cooperating Brokers fee will be paid according to: (Check only one box). (a) a separate written commission agreement between Cooperating Broker and: El Principal Broker El Landlord Tenant. ❑ (b) the attached Addendum for Broker's Fee. 33. ADDENDA: Incorporated into this lease are the addenda, exhibits and other information marked in the Addenda and Exhibit section of the Table of Contents. If Landlord's Rules and Regulations are made part of this lease, Tenant agrees to comply with the Rules and Regulations as Landlord may, at its discretion, amend from time to time. .34. NOTICES: All notices under this lease must be in writing and are effective when hand-delivered, sent by mail, or sent by facsimile transmission to: Tenan at the leased premises, and a copy to:city of Beaumont Attn Brenda Dean — Address: 801 Mai++ street. Suite 315 Beaumont texas 77701 Phone: (409) 880-3759 Fax: (409) 880-3747 d Tenant also consents to receive notices by e-mail at:BI)W ,OC3: BtaarrMONT TZ_US Landlord at: oasis Car Wash _Inc Debtor. c/o Burns Froverties Inc Address: p O Box 3723 Beaumont Texas 77704 Phone: (409) 866-2398 Fax: (400) 860-5208 and a copy to: Address: Phone: Fax: Q Landlord also consents to receive notices by e-mail at: aburnseburnaRz=ertiesinc com _ 35. SPECIAL PROVISIONS: Notwithstanding anything contained herein in paragraph 8, The City of Beaumont shall provide Landlord with a Self Funding Letter, in lieu of purchasing insurance coverage, prior to the commencement of this Lease, which shall be included and attached as Exhibit A. The Self Funding letter shall insure Landlord against casualty and property loss, including acts of negligence by , Tenant, its Employee's, Customers and Invitee's. Notwithstanding anything contained herein to the contrary, Landlord and Tenant hereby agree and understand that funds for this office are approved by The State of Texas. The State of Texas statutes prohibit the obligation and expenditure of public funds beyond the fiscal year for which a budget has been approved. Obligations beyond the end of the current State of Texas fiscal Year will be subject to budget approval. Tenant may cancel this Lease .upon 30-days written notice to Landlord, if appropriate funds are not approved for the following fiscal year. (TAR-2101)5-26-06 Initialed for Identification by Tenant ,and Landlord: Page 13 of 14 Produced with aPForm-by RE FwmsNet LLC 18025 FNteen MIN Road,Clinton Township.Mbhipan 441035 www.zlofofm.com Ciy of Beaumon 5550 Eastex Freeway, Suite EE Commercial Lease concerning: Beaumont TX 77708 36. AGREEMENT OF PARTIES: A. Entire Agreement:This lease contains the entire agreement between Landlord and Tenant and may not be changed except by written agreement. B. Binding Effect: This lease is binding upon and inures to the benefit of the parties and their respective heirs, executors,administrators, successors,and permitted assigns. C. Joint and Several:All Tenants are jointly and severally liable for all provisions of this lease. Any act or notice to, or refund to, or signature of, any one or more of the Tenants regarding any term of this lease, Its renewal, or its termination is binding on all Tenants. D. Controllina Law: The laws of the State of Texas govern the interpretation, performance, and enforcement of this lease. E. Severable Clauses: If any clause in this lease is found invalid or unenforceable by a court of law, the remainder of this lease will not be affected and all other provisions of this lease will remain valid and enforceable. F. Waiver: Landlord's delay, waiver, or non-enforcement of acceleration, contractual or statutory lien, rental due date, or any other right will not be deemed a waiver of any other or subsequent breach by Tenant or any other term in this lease. G. Quiet Enjoyment: Provided that Tenant is not in default of this lease, Landlord covenants that Tenant will enjoy possession and use of the leased premises free from material Interference. H. Force Maieure: If Landlord's performance of a term in this lease is delayed by strike, lock-out, shortage of material, governmental restriction, riot. flood, or any cause outside Landlord's control, the time for Landlord's performance will be abated until after the delay. I. Time: Time is of the essence. The parties require strict compliance with the times for performance. Brokers are not qualified to render legal advice, property inspections, surveys, engineering studies, environmental assessments,.tax advice, or compliance Inspections. The parties should seek experts to render such services. READ THIS LEASE CAREFULLY. If you do not understand the effect of this Lease, consult your attorney BEFORE signing. =y og t#,f Beamont Tenant Landlord By By Date Date Printed Name xvle Hayes Printed Name Tames w CunningbAm... Title city Manager Title Trustee James.W. Cunningham, Trustee for Oasis Car Wash, Inc., Debtor`in Bankruptcy Case No. 04-83367 in thel'United States Bankruptcy Court for the Northern District o Texas.__ Tenant -1=afldlaod By l Batc Printed Name Date Title - ffille Dallas Division, per operating0or-der entered (TAR-2101)5-26-06 August 30, 2006. page 14 of 14 Produced wUh ZipFocm*m by RE FonnsNet,LLC 18025 Fifteen Mlle Road,Clinton Township.Mkhlpan 48035 wwwz1ofomoorn Ciy of Bannon TEXAS ASSOCIATION OF REALTORS® COMMERCIAL LANDLORD'S RULES AND REGULATIONS USE OF THIS FORM BY PERSONS WHO ARE NOT MEMHERS OF THE TEXAS ASSOCIATION OF REALTORSO IS NOT AUTHORIZED. elTasas Assoaladen at REALTORN,Im 2M REGARDING THE COMMERCIAL LEASE CONCERNING THE LEASED PREMISES AT 5550 Has ex Freeway, "suite EE, Beaumont, TX 77708 NOTICE: These rules and regulations are adopted to maintain and enhance the safety and appearance of the Property. From time to time Landlord, at its discretion, may amend these rules and regulations for the purposes for which they were adopted. Under the above-referenced lease, Tenant agrees to comply with these rules and regulations as they may be amended. Exceptions or waivers must be authorized by Landlord In writing. "Property" means the building or complex in which the leased premises are located, inclusive of any common areas, drives, parking areas, and walks. A. Goods, merchandise, equipment, or any personal property may not be stored on the Property, except for inventory within the leased premises necessary for Tenant's normal business operations. B. Food is not permitted on the Property, except as inventory for.sale and for a small amount of food for Tenants personal consumption. C. Other than those provided by Landlord or specifically authorized by Landlord, no vending machines are permitted on the Property. D. The Property may not be used for lodging or sleeping quarters in any manner. E. Unless authorized by law or the lease, no animals may be brought or kept on the Property. F. No obstruction or interference that impedes use of the common areas, walks, drives, loading areas, parking areas, corridors, hallways, vestibules, and stairs is permitted on the Property. G. Persons parking on the Property must comply with all posted signs and directions regulating the parking areas. H. No flammable, toxic, noxious, or hazardous materials may be kept on the Property except for over-the-counter cleaning materials kept in enclosed storage closets or cabinets. I. Tenants moving in or out of the Property must use only the service entrances and service elevators during the move. All moves must be made at times that do not cause Inconvenience In the normal use of the Property. J. Deliveries and shipping of goods and merchandise in or out of the Property must be made only through the service entrances, service elevators, loading docks, or other.designated shipping and receiving areas. Shipments and deliveries must be made at times that do not cause Inconvenience to tenants or patrons on the Property. . K. Leased premises must be kept clean and free of debris. Trash must be deposited into appropriate receptacles. (TAR-2108)5-26-06 Initialed for Identification by Tenant: ,and Landlord: Page 1 of 2 Bums Properties,Inc.6845 Phelan, Beaumont TX 77706 Ci of Beaumon Phone:(409)866-2398 Fax: (409)860-3208 Andrew K Burns Y Produced with ZlpFotm"'by RE FornisNet,LLC 18025 Fifteen Mile Road,Canton Township.Michigan 48035 1pmpy,71aform,rom Landlord's Rules and Regulations concerning 5550 Bastex Freewav, Suite RE, Beaumont Tx 77708 L. Repair requests must be submitted to Landlord in writing in compliance with the lease. M. No modification to the Property and leased premises may be made unless authorized by Landlord, in writing, or permitted by the lease. N. No illegal or offensive activity is permitted on the Property nor is any activity that constitutes a nuisance or interferes with the rights of other tenants. O. Unless specifically authorized by Landlord, no solicitation or business operations are permitted in the common areas. P. Other: (TAR-2108)5-26-06 Initialed for Identification by Tenant: ,and Landlord: Page 2 of 2 Produoed with Z1PForM-by RE FarmSNet.LLC 18025 Fifteen Mlle Road,Clinbn Townsh ,Mlohi Oa n 48035 wwwalom.com Ciy of 9eawnon EXHIBIT A LETTER OF SELF-FUNDING 5550 EASTEX FREEWAY, SUITE EE BEAUMONT,TEXAS 77708 Letter of Self-Funding shall be provided by Tenant to Landlord on or before the execution of the Lease and incorporated herein. EXHIBIT B DIAGRAM OF LEASE SPACE 5550 EASTEX FREEWAY,SUITE EE Not to Scale Common restrooms °Esr ,Roots �4 Rtsarh :a Sl XO' [[. OPP2'G�. 4 ofP,ze FZ0F .90 . t . F aA&�' z .` $ePFRtIYSaR o.FFrc rt. SCCA't' IL . . 1 City of Beaumont REGULAR MEETING OF THE CITY COUNCIL COUNCIL CHAMBERS OCTOBER 17,2006 1:30 P.M. AGENDA CALL TO ORDER * Invocation Pledge Roll Call * Presentations and Recognition * Public Comment: Persons may speak on scheduled agenda items 1-11/Consent Agenda * Consent Agenda GENERAL BUSINESS 1. Consider authorizing the City Manager to execute contracts for consulting services related to Planning and Site Development in Downtown Beaumont 2. Consider approving a change order related to the Pearl Street Project 3. Consider approving a one year contract with the Art Museum of Southeast Texas 4. Consider approving a one year contract with the Southeast Texas Arts Council (SETAC) 5. Consider approving a one year contract with the Texas Energy Museum 6. Consider approving a one year contract with BUILD, Inc., Beaumont Main Street 7. Consider approving a payment for fiscal year 2007 dues to the South East Texas Regional Planning Commission(SETRPC) 8. Consider approving a one year contract with the Beaumont Heritage Society/John Jay French Museum 9. Consider approving a contract for fighting improvements at the Athletic Complex softball fields WORKSESSION * Review and discuss a proposed contract with the Southeast Texas Regional Planning Commission for the administration of disaster recovery funds and discuss proposed guidelines for disaster recovery programs 10. Consider authorizing the City Manager to execute a contract with the Southeast Texas Regional Planning Commission for the administration of disaster recovery funds 11. Consider adopting Housing Program Guidelines for Disaster Recovery Programs COMMENTS * Councilmembers/City Manager comment on various matters * Public Comment (Persons are limited to 3 minutes) EXECUTIVE SESSION * Consider matters related to contemplated or pending litigation in accordance with Section 551.071 of the Government Code: Beaumont Firefighters' Local 399 Persons with disabilities who plan to attend this meeting and who may need auxiliary aids or services are requested to contact Lenny Caballero at 880-3716 three days prior to the meeting. i 1 October 17, 2006 Consider authorizing the City Manager to execute contracts for consulting services related to Planning and Site Development in Downtown Beaumont .l ! City of Beaumont �• Council Agenda A = T • � � g Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tom Warner, Public Works Director MEETING DATE: October 17, 2006 AGENDA MEMO DATE: October 11, 2006 REQUESTED ACTION: Council consider a resolution authorizing the City Manager to execute contracts with Concord Eastridge for consulting services related to Planning and Site Development in Downtown Beaumont. RECOMMENDATION Administration recommends Council authorize the City Manager to execute two (2)separate contracts with Concord Eastridge of Phoenix,Arizona for consultant services to advise the City on further steps to successfully redevelop Downtown Beaumont, as well as analyze site development opportunities for City-owned property along the east side of Main. BACKGROUND Recently, the firm Concord Eastridge of Phoenix, Arizona, made a presentation to the City Council, offering its planning and development services to the City for the further redevelopment of Downtown Beaumont. These proposed agreements lay out the scope of work necessary to achieve the goals discussed at that meeting, as well as during subsequent discussions. The first proposed contract is the "Planning Agreement" which is a 90-day agreement(with a monthly extension clause) that will enable Concord Eastridge to provide the City with analysis of the most advantageous steps necessary to achieve further redevelopment within the Downtown Planning Area. Also, this contract will initiate the process of assisting in the identification of a land planning firm to develop a Downtown Plan as well as identify additional funding sources for such a plan. The second proposed contract, the "Site Development Agreement," is an 18-month contract (with a 6-month optional extension clause) will enable the Consultant to offer his judgment, experience and advice with respect to development opportunities for the City's property along the east side of Main. This agreement will also allow the Consultant to solicit and evaluate quality development teams and proposals for the City's land and allow the Consultant to conduct market demand and feasibility studies for determining market support of any proposed development project on the City's property. BUDGETARY IMPACT Funds for these contracts are available from the General Fund PREVIOUS ACTION None. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager, Public Works Director and Development Services Manager. ConcordAgendaItem.wpd October 12,2006 RESOLUTION NO. 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. - Mayor Guy N. Goodson - " T Y- - �v t Ica- . ,YM1 z a elf 3 As Yyl ORy� _ j a . Vw+Y 'kkvif{'. T Y : cPk 4 Al n y«. M, .n v Q} s [ x« Q „' Aftr fi ..c A xr' .. s sa « « s ix. nv �" C «_ 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 H 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 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 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 parry 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 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 8.1(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 8.1(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: City: 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 inabil ity 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 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 party 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 parry'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- judgment motions; (iii) contempt proceedings; (iv) garnishment, levee, and debtor and third- parry 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 parry to complain of any act or failure to act of the other party or to declare the other parry 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 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 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 parry 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 Maieure. 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 parry 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 y 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 corner 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 ree as follows: g 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, 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 parry. 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 Indemnitv. (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.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 parry 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 party 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 parry'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 Inte ration. 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 Attomevs 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 parry 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 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 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 parry 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 EXIIIBIT 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 comer 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 comer 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. 2 October 17, 2006 Consider approving a change order related to the Pearl Street Project < o-; I F. .,, 0 y t' , H e � . 3 s H a r rr WAS* NO -OWN NP-MMM B t i T i b i I, x c o- Y a u 4jMp a N;Y' � �.;:'_, .• _ .. ,yam:�fw M (s e f ram .Yy I = C s do ar+ Am g � �y " ��K...... City of Beaumont Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tom Warner, Public Works Director MEETING DATE: October 17, 2006 AGENDA MEMO DATE: October 10, 2007 REQUESTED ACTION: Council consider a resolution authorizing Change Order #2 in the amount of$272,423.55. RECOMMENDATION Administration recommends Council authorize Change Order #2 to Placo Ltd, in the amount of $272,423.55 to change the Scope of Work to include: Orleans Street from Broadway Avenue to Liberty Avenue, Broadway Avenue from Orleans Street east 180 feet, Liberty Avenue from Orleans Street east 180 feet and, to replace 21 flourescent illuminated street name signs with edge lit LED illuminated street name signs. BACKGROUND On May 17, 2005, the City Council awarded Placo Ltd. the contract for the Downtown Improvements Project on Pearl, Bowie and Liberty Streets in the amount of $2,094,178.15. Change Order No. 1 was issued for the project that decreased the total project cost by $100,000 to $1,994,178.15. BUDGETARY IMPACT None. PREVIOUS ACTION Council awarded the contract on May 17, 2005 and approved Change Order No. 1 on June 14, 2005. RECOMMENDED BY City Manager, Public Works Director and City Engineer. DOWNTOWNCO2 CITY BEAUMONT DATE: September 28,2006 PROJECT: DOWNTOWN IMPROVEMENTS PEARL STREET(CALDER AVE. TO COLLEGE ST.)BOWIE STREET(PEARL STREET TO MAIN STREET), AND LIBERTY STREET(PEARL STREET TO MAIN STREET)INTERLOCKING CONCRETE BRICK PAVERS OWNER: CITY OF BEAUMONT CONTRACTOR: Placo, LTD CHANGE ORDER NO. 2 THE FOLLOWING CHANGES IN THE PLANS AND/OR SPECIFICATIONS ARE HEREBY MADE: Change the Scope of Work to include:Orleans Street from Broadway Avenue to Liberty Avenue, Broadway Avenue from Orleans Street east 180 feet and Liberty Avenue from Orleans Street east 180 feet. This will increase the contract amount by$200,000.00. Replace twenty-one(21)flourescent illuminated street name signs with edge lit LED illuminated street name signs. This will increase the contract amount by$72,423.55. The total increase to the contract per this change order is$272,423.55. ORIGINAL CONTRACT AMOUNT: $2.094.178.15 NET FROM PREVIOUS CHANGE ORDERS; $ 1,994.178.15 TOTAL AMOUNT OF THIS CHANGE ORDER: $ 272.423.55 PERCENT OF THIS CHANGE ORDER: 13.01% TOTAL PERCENT CHANGE TO DATE: 13.01% NEW CONTRACT AMOUNT: $2.266.601.70 CONTRACT TIMES IS NOT AFFECTED BY THIS CHANGE ORDER ACCE ED BY• CONT ACTOR APPROVED BY: JORIS P.COLBERT,P.E.CITY ENGINEER TOM A.WARNER,P.E. DIRECTOR OF PUBLIC WORKS KYLE HAYES,CITY MANAGER ATTESTED BY: CITY CLERK o , a 4 RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: WHEREAS, on May 17, 2005, the City Council of the City of Beaumont, Texas, passed Resolution No. 05-125 awarding a contract in the amount of $2,094,178.15 to Placo, Ltd., for the Downtown Improvements Pearl Street (Calder Avenue to College Street), Bowie Street(Pearl Street to Main Street), and Liberty Street(Pearl Street to Main Street) Interlocking Concrete Brick Pavers Project; and, WHEREAS, Change Order No. 1, not requiring Council approval and dated June 16, 2005,decreased the contract amount by$100,000 for a total amount of$1,994,178.15; and WHEREAS, Change Order No. 2, in the amount of $272,423.55, is required to change the Scope of Work to include Orleans Street from Broadway Avenue to Liberty Avenue, Broadway Avenue from Orleans Street east 180 feet, Liberty Avenue from Orleans Street east 180 feet, and to replace 21 flourescent illuminated street name signs with edge lit LED illuminated street name signs, thereby increasing the contract amount to $2,266,601.70. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be, and he is hereby authorized, to execute Change Order No. 2 in the amount of$272,423.55 increasing the contract amount to $2,266,601.70. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 17th day of October, 2006. - Mayor Guy N. Goodson - 3 October 17,2006 Consider approving a one year contract with the Art Museum of Southeast Texas City of Beaumont Council Agenda Item K g TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Max S. Duplant, Chief Financial Officer MEETING DATE: October 17, 2006 AGENDA MEMO DATE: October 10, 2006 REQUESTED ACTION: Consider approving a one year contract with the Art Museum of Southeast Texas in the amount of$185,000. RECOMMENDATION Administration recommends funding the Art Museum of Southeast Texas (AMSET) $185,000 for FY 2007 from Hotel Occupancy Tax and General Funds. BACKGROUND The City of Beaumont (City) and AMSET entered into a lease agreement on December 30, 1996 whereby the City and AMSET agreed to a 99-year lease on the land and building to be used as an art museum. The City supports AMSET with annual allocations and garbage removal. In return AMSET is open to the general public and strives to provide programs and services to the entire community. Approximately 60,000 children and adults participate in Art Museum activities each year. The City may utilize a portion of its revenue derived from the hotel-motel occupancy tax to promote the arts. BUDGETARYIMPACT Funds are available in the FY 2007 budget with$60,000 funded through the Hotel Occupancy Tax Fund and $125,000 funded by the General Fund. PREVIOUS ACTION None. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager and Chief Financial Officer. RESOLUTION NO. 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 one-year contract between the Art Museum of Southeast Texas (AMSET) and the City of Beaumont in the amount of$185,000 for FY07. The agreement is substantially in the form attached hereto as Exhibit "A." PASSED BY THE CITY COUNCIL of the City of Beaumont this the 17th day of October, 2006. - Mayor Guy N. Goodson - WHEREAS, the Southeast Texas Arts Council is the proper organization to provide assistance in the responsible distribution of public funds for support of the arts in Beaumont; Now, Therefore, the City and the Council agree as follows: 1. The payment of the total amount of One-Hundred Thousand ($100,000) Dollars by City to Council will be made from funds as available and as collected from the Hotel Occupancy Tax. Payments of Eight-Thousand Three-Hundred and Thirty-Three Dollars ($8,333) will be made monthly commencing October 1, 2006. Any funds not expended for the projects and purposes approved will be retained by the Council to be reallocated for similar arts purposes by approval of the City. 2. All expenditure of funds from the Hotel Occupancy Tax shall be reasonably related to the purposes established by V.T.C.A. Tax Code 351.101(a)(4). 3. The Council is an independent contractor and is not an officer, agent or employee of the City. 4. The Council shall submit quarterly reports in the format provided by the City reflecting the activities of the Council as they relate to this contract. The Council shall submit such reports quarterly commencing January 19, 2007. 5. The City Manager or his designated representative shall, upon reasonable notice, have the right to inspect all books and records of the Council. 6. It is understood and agreed that either party may terminate this contract by giving to the other party notice in writing of said termination thirty (30) days in advance. GAMAGREEMEMSETEXASARTS FY 06.wpd 2 / 4 / 7. Upon termination of this agreement, unless it be renewed, the Council shall deliver to the City all funds paid under this contract that it may have and all removable personable property that may have been purchased with funds derived from said tax. 8. Funding under this contract will require that should a seminar be held during the term of this contract designed to assure that expenditures of Hotel Occupancy Tax funds are made in compliance with the Act, a representative of the Council will attend the seminar. 9. Council agrees to indemnify, save harmless, and defend the City of Beaumont from any and all claims, causes of action and damages of every kind arising from the operations of Council, its officers, agents and employees, including the officers, agents, and employees involved in museum operation and specifically including herein any and all acts of negligence by the City of Beaumont, its agents, officers or employees, carried out under the terms of this agreement. GAMAGREEMEWSETEXASARTS FY O6.wpd 3/ 4 EXECUTED this the day of , 2006. CITY OF BEAUMONT By: Kyle Hayes City Manager ATTEST: By: City Clerk SOUTHEAST TEXAS ARTS COUNCIL By: Name: Title: ATTEST: By: Name: Title: GAMAGREEMEMSETEXASARTS FY 06.wpd 4/ 4 5 October 17, 2006 Consider approving a one year contract with the Texas Energy Museum I V~ City of Beaumont w Council Agenda Item EL TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Max S. Duplant, Chief Financial Officer MEETING DATE: October 17, 2006 AGENDA MEMO DATE: October 10, 2006 REQUESTED ACTION: Consider approving a one year contract with the Texas Energy Museum in the amount of$90,000. RECOMMENDATION The Administration recommends funding the Texas Energy Museum, $90,000, for FY 2007 from the Hotel Occupancy Tax Fund. BACKGROUND The City is entitled to utilize revenues derived from the hotel-motel occupancy tax for historic preservation and the promotion of tourism. The Texas Energy Museum meets the above criteria by highlighting the history,along with current developments,of the oil industry in the Southeast Texas region. BUDGETARYIMPACT Funds are available in the Hotel Occupancy Tax Fund. PREVIOUS ACTION None. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager and Chief Financial Officer. RESOLUTION NO. 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 one-year contract between the Texas Energy Museum and the City of Beaumont in the amount of$90,000 for FY07. The agreement is substantially in the form attached hereto as Exhibit "A." PASSED BY THE CITY COUNCIL of the City of Beaumont this the 17' day of October, 2006. - Mayor Guy N. Goodson - STATE OF TEXAS § COUNTY OF JEFFERSON § AGREEMENT This agreement between the City of Beaumont, a municipal corporation, herein called "City", and the Texas Energy Museum, herein called "TEM", is as follows: WITNESSETH: WHEREAS,V.T.C.A.,Tax Code Section 351.001 et.seq.,authorizes the Cityto levy by ordinance, a hotel tax which may not exceed seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, V.T.C.A. Tax Code Section 351.101 (a)(5), authorizes the City to use a portion of the revenues derived from its hotel occupancy tax for historical restoration and Preservation projects or activities or advertising and conducting solicitation and promotional programs to encourage tourists and convention delegates to visit preserved historic sites or museums at or in the immediate vicinity of convention center facilities or located elsewhere in the municipality or its vicinity that would be frequented by tourists; and, for projects that directly enhance and promote tourism and convention activities. WHEREAS, under the authority of V.T.C.A. Tax Code Section 351.101(a)(5), the City desires to provide financial assistance to TEM. NOW, THEREFORE, the City and TEM agree as follows: 1. City agrees to pay to TEM the amount of Ninety-Thousand Dollars ($90,000). The payment provided for herein will be made quarterly in the amount of Twenty-Two Thousand Five-Hundred ($22,500) Dollars per quarter commencing October 1,2006 from funds as available and collected from the hotel occupancy tax. GACGWGREEMEN7X ENGERGY MU FY 07.wpd EXHIBIT "A" Any funds not expended by TEM will be retained by TEM to be reallocated for similar purposes by approval of City. 2. All expenditure of funds shall be reasonably related to the purposes established by V.T.C.A. Tax Code Section 351.101(a)(5). 3. The TEM is an independent contractor and is not an officer, agent or employee of the City. 4. In return for the payments provided for herein, TEM agrees to operate for the period October 1, 2006 to September 30, 2007. 5. The TEM shall submit quarterly reports in the format provided by the City reflecting the activities of TEM as they relate to this contract. The TEM shall submit such reports quarterly commencing January 19, 2007. 6. The City Manager of City or his designated representative shall, upon reasonable notice, have the right to inspect all books and records of the TEM. 7. Upon termination of this agreement or any extension thereof, unless it be renewed, the TEM shall deliver to the City all funds paid under this contract that it may have and all removable personal property that may have been purchased with funds derived from said tax. 8. Funding under this contract will require that should a seminar be held during the term of this contract designed to assure that expenditures of Hotel Occupancy Tax funds are made in compliance with the Act, a representative of TEM will attend the seminar. G\CGWGREEMEN\TX ENGERGY MU FY 07.wpd 9. TEM agrees to indemnify, save harmless, and defend the City of Beaumont from any and all claims, causes of action and damages of every kind arising from the operations of TEM, its officers, agents and employees, including the officers, agents, and employees involved in TEM operation and specifically including herein any and all acts of negligence by the City of Beaumont, its agents, officers or employees, carried out under the terms of this agreement. EXECUTED this the day of , 2006. CITY OF BEAUMONT By: Kyle Hayes City Manager ATTEST: By: City Clerk TEXAS ENERGY MUSEUM, INC. By: Name: Title: ATTEST: By: Name: Title: GAMAGREEMEWTX ENGERGY MU FY 07.wpd 6 October 17, 2006 Consider approving a one year contract with BUILD, Inc., Beaumont Main Street CIE. ...J!j. City of Beaumont Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Max S. Duplant, Chief Financial Officer MEETING DATE: October 17, 2006 AGENDA MEMO DATE: October 10, 2006 REQUESTED ACTION: Consider approving a one year contract with BUILD, Inc., Beaumont Main Street in the amount of$75,000 for downtown economic development purposes. RECOMMENDATION Administration recommends funding BUILD, Inc., Beaumont Main Street $75,000 for FY 2007 from the General Fund. BACKGROUND The Beaumont Main Street program has established a partnership between public and private sectors that is dedicated to the revitalization of Beaumont's historic Central Business District. The annual contribution from the City will be matched with other local funds and used to promote downtown business development and retention. BUDGETARYIMPACT Funds are available in the General Fund. PREVIOUS ACTION None. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager and Chief Financial Officer. i RESOLUTION NO. 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 one-year contract between BUILD, Inc., Beaumont Main Street, and the City of Beaumont for FY07 in the amount of $75,000 for downtown economic development purposes. The agreement is substantially in the form attached hereto as Exhibit "A." PASSED BY THE CITY COUNCIL of the City of Beaumont this the 17th day of October, 2006. - Mayor Guy N. Goodson - STATE OF TEXAS § COUNTY OF JEFFERSON § This agreement is made and entered into by and between the City of Beaumont, Texas, a municipal corporation of the State of Texas, hereinafter called "City", acting herein by and through its duly authorized City Manager, and BUILD, Inc., a non-profit corporation, hereinafter called "BUILD", acting herein by and through its President. WHEREAS, the City believes that economic development and downtown revitalization are crucial to the continued economic success of City and believes that BUILD should be retained to carry out a program of work on behalf of City to accomplish these goals; NOW,THEREFORE, in consideration of the mutual promises made herein,the City and BUILD agree as follows: STATEMENT OF WORK City does hereby enter into a contract with BUILD to provide a comprehensive range of plans and projects in Beaumont directed at economic development and downtown revitalization by: a) promoting the physical and social development, redevelopment and economic well being of downtown Beaumont; b) creating an environment in the downtown area which is conducive to residential, commercial, employment, recreational and cultural-artistic revitalization; c) attracting new employers; d) complying with all provisions of the Contract for Services-Urban Main Street program between BUILD and the Texas Historical Commission. G:\C G1A G R E E M E MB U I L D-07.wpd EXHIBIT "A" COMPENSATION City hereby agrees to pay to BUILD during the term of this agreement Seventy-five Thousand Dollars ($75,000)from the City's General Fund. BUILD agrees to raise at least Seventy-Five Thousand ($75,000) in additional funding from the private sector to match the City's financial commitment. DISBURSEMENT Payment to BUILD will be made on a reimbursement basis and those payments will be supported by proper verifiable documentation. RECORDS AND REPORTS Quarterly progress reports detailing the activities and accomplishments of BUILD, emphasizing compliance with the Urban Main Street Program, will be due thirty(30) days following the end of the quarter beginning with the quarter ending December 31, 2006. In addition to said uarterl q y reports, BUILD will also provide an annual review related specifically to the Urban Main Street Program covering the period of this agreement due on October 31, 2007. SUSPENSION AND TERMINATION The term of this agreement will be October 1, 2006, through September 30, 2007. Suspension and/or termination may occur if BUILD fails to comply with any or all provisions of this agreement or for convenience. GACGWGREEMEMBUILD--07.wpd ACCESSIBILITY OF RECORDS The City retains the right to inspect and/or audit the records of BUILD, Inc. as they consider necessary to assure compliance with this agreement. LOSS, DAMAGE, PERSONAL INJURY BUILD agrees to indemnify, hold harmless and defend, at its own expense,the City of Beaumont and its officers, agents, servants and employees, from and against any and all claims, causes of action and damages of every kind arising out of or in conjunction with the execution, performance attempted performance or non-performance of this contract or from the operations and actions of BUILD, Inc., its officers, agents and employees. EXECUTED in duplicate originals this the day of , 2006. CITY OF BEAUMONT By: City Manager ATTEST: "CITY" By: City Clerk BUILD, INC. By: President ATTEST: "BUILD" By: GA AGREEMEMBUILD-07.wpd 7 October 17,2006 Consider approving a payment for fiscal year 2007 dues to the South East Texas Regional Planning Commission(SETRPC) . ! City of Beaumont •� Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Max S. Duplant, Chief Financial Officer MEETING DATE: October 17, 2006 AGENDA MEMO DATE: October 12, 2006 REQUESTED ACTION: Consider approving a payment of fiscal year 2007 dues to the South East Texas Regional Planning Commission (SETRPC) in the amount of$42,702.32. RECOMMENDATION Administration recommends approval of the payment of fiscal year 2007 dues to the South East Texas Regional Planning Commission in the amount of$42,702.32. BACKGROUND The SETRPC was established in June of 1970 under enabling legislation as a voluntary association of local governments. Its purpose is to encourage and permit local governments to join and cooperate with one another to improve the health and safety of their citizens; to plan for future development and transportation efforts; and to recognize the needs of agriculture, business and industry, among other things. The City of Beaumont supports the SETRPC and the community projects they perform. Some of the programs these dues will fund are the Criminal Justice Program; the Area Agency on Aging (AAA) Program; the Homeless Coalition; the Foster Grandparents (FGP) Program; and the Retired Senior Volunteer Program (RSVP). BUDGETARY IMPACT Funds are available in the General Fund. PREVIOUS ACTION None. SUBSEQUENT ACTION None RECOMMENDED BY: City Manager and Chief Financial Officer RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Council hereby approves the payment of fiscal year 2007 dues to the South East Texas Regional Planning Commission (SETRPC) in the amount of$42,702.32. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 17th day of October, 2006. - Mayor Guy N. Goodson - 8 October 17, 2006 Consider approving a one year contract with the Beaumont Heritage Society/John Jay French Museum I • City of Beaumont 7Ljqw_ Council Agenda Item 'a I&TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Max S. Duplant, Finance Officer MEETING DATE: October 17, 2006 AGENDA MEMO DATE: October 10, 2006 REQUESTED ACTION: Consider approving a one year contract with the Beaumont Heritage Society/John Jay French Museum in the amount of $45,000. RECOMMENDATION The Administration recommends funding the Beaumont Heritage Society/John Jay French Museum $45,000 for FY 2007 from the Hotel Occupancy Tax Fund. BACKGROUND The City is entitled to utilize revenues derived from the hotel-motel occupancy tax for historic preservation and the promotion of tourism. John J.French,an early settler in Beaumont,built the Greek Revival home which has been faithfully restored;the home contains furniture and fixtures from the mid 19"century and is a tourist attraction for our city. BUDGETARYIMPACT Funds are available in the Hotel Occupancy Tax Fund. PREVIOUS ACTION None. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager and Chief Financial Officer. I RESOLUTION NO 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 one-year contract between the Beaumont Heritage Society/John Jay French Museum and the City of Beaumont in the amount of$45,000 for FY07. The agreement is substantially in the form attached hereto as Exhibit "A." PASSED BY THE CITY COUNCIL of the City of Beaumont this the 17th day of October, 2006. - Mayor Guy N. Goodson - STATE OF TEXAS § COUNTY OF JEFFERSON § AGREEMENT This agreement between the City of Beaumont, a municipal corporation, herein called "City", and the Beaumont Heritage Society operating the John J. French Museum, herein called "Museum", is as follows: WITNESSETH: WHEREAS,V.T.C.A.,Tax Code Section 351.001 et.seq., authorizes the City to levy by ordinance, a hotel tax which may not exceed seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, V.T.C.A. Tax Code Section 351.101 (a)(5), authorizes the City to use a portion of the revenues derived from its hotel occupancy tax"for historical restoration and preservation projects or activities or advertising and conducting solicitation and promotional programs to encourage tourists and convention delegates to visit preserved historic sites or museums at or in the immediate vicinity of convention center facilities or located elsewhere in the municipality or its vicinity that would be frequented by tourists; and," WHEREAS, under the authority of V.T.C.A. Tax Code Section 351.101(a)(5), the City desires to provide financial assistance to Museum for historical restoration, preservation, and tourism in Beaumont: NOW, THEREFORE, the City and Museum agree as follows: 1. City agrees to pay to Museum the amount of Forty-Five Thousand ($45,000) Dollars . The payment provided for herein will be made quarterly in the amount of Eleven- GAMAGREEMENWFRENCH FY 07.wpd 1 / 3 Thousand Two-Hundred and Fifty ($11,250) Dollars per quarter commencing October 1, 2006 from funds as available and collected from the hotel occupancy tax. Any funds not expended by Museum will be retained by Museum to be reallocated for similar purposes by approval of City. 2. All expenditure of funds shall be reasonably related to the purposes established by V.T.C.A. Tax Code Section 351.101(a)(5). 3. The Museum is an independent contractor and is not an officer, agent or employee of the City. 4. In return for the payments provided for herein, Museum agrees to operate for the period October 1, 2006 to September 30, 2007. 5. The Museum shall submit quarterly reports in the format provided by the City reflecting the activities of the Museum as they relate to this contract. The Museum shall submit such reports quarterly commencing January 19, 2007. 6. The City Manager of City or his designated representative shall,upon reasonable notice, have the right to inspect all books and records of the Museum. 7. Upon termination of this agreement or any extension thereof, unless it be renewed, the Museum shall deliver to the City all funds paid under this contract that it may have and all removable personal property that may have been purchased with funds derived from said tax. 8. Funding under this contract will require that should a seminar be held during the term of this contract designed to assure that expenditures of Hotel Occupancy Tax funds are made in compliance with the Act, a representative of the Musuem will attend the seminar. G:\CGWGREEMEN\JJFRENCH FY 07.wpd 2 / 3 EXECUTED this the day of , 2006. CITY OF BEAUMONT By: Kyle Hayes City Manager ATTEST: By: City Clerk BEAUMONT HERITAGE SOCIETY By: Name: Title: ATTEST: By: Name: Title: GAMAGREEMENWFRENCH FY 07.wpd 3 / 3 i 9 October 17, 2006 Consider approving a contract for lighting improvements at the Athletic Complex softball fields i City of Beaumont M c Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tom Warner, Director of Public Works MEETING DATE: October 17, 2006 AGENDA MEMO DATE: October 13, 2006 REQUESTED ACTION: Council approval of a bid for Athletic Field Sports Lighting. RECOMMENDATION Administration recommends award of a bid for furnishing all materials,labor,equipment and supplies for the installation of a sports lighting system at the Municipal Athletic Complex to A& A Electric Co. Inc. in the amount of$755,147. BACKGROUND Five (5) bids were received on Thursday, October 12, 2006 for furnishing and installing a sports lighting system. The athletic complex consists of four complexes each with three regulation softball fields. Field lighting at complexes 1,2,and 3 were destroyed by Hurricane Rita and removed by city staff. An electrical and mechanical engineering consultant was retained in July to design a new sports lighting system. The proposed lighting system consist of forty-two new sixty(60)ft. galvanized steel poles equipped with 1500 watt metal halide lamps. In addition,six(6)of the poles will be equipped with flood lamps to provide lighting in all three parking lots. Each pole will be installed in a concrete foundation and will be rated to withstand 125 mph winds. The field system includes new electrical control panels and additional outlets for vending trailer hook-ups. Athletic Complex Sports Lighting October 13, 2006 Page 2 The bids received are as follow: Vendor Location Bid A& A Electric Co., Inc. Beaumont, TX $755,147 Allied Electrical Contractors Beaumont, TX $870,714 C. F. McDonald Electric, Inc. Houston, TX $896,669 Gulf Coast Electric Co., Inc. Beaumont, TX $899,800 Jefferson Electric Co. Inc. Beaumont, TX $988,134 The low bidder, A& A Electric Co., Inc., meets specifications. The system they are proposing is Universal Sports Lighting,Inc. Installation of the field lighting system will be completed by April 15, 2007 in time for upcoming softball tournaments scheduled to begin in May 2007. A& A Electric Co., Inc. of Beaumont is a certified MBE company. BUDGETARY IMPACT FEMA has approved funding at 90%which will net$606,600 to the City. Insurance proceeds totaled $66,750. Total amount funded by FEMA and insurance is $673,350. The remaining balance of $81,797 will be funded by the Capital Programs budget. PREVIOUS ACTION None. SUBSEQUENT ACTION None RECOMMENDED BY The City Manager and Director of Public Works. RESOLUTION NO. WHEREAS, bids were received for furnishing all materials, labor, equipment and supplies for the installation of a sports lighting system at the Municipal Athletic Complex; and, WHEREAS,A&A Electric Co, Inc., Beaumont,Texas, submitted a bid in the amount of$755,147; and, WHEREAS, City Council is of the opinion that the bid submitted by A&A Electric Co, Inc., Beaumont, Texas, should be accepted; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the bid submitted by A & A Electric Co, Inc., Beaumont, Texas, for furnishing all materials, labor, equipment and supplies for the installation of a sports lighting system at the Municipal Athletic Complex in the amount of $755,147 be accepted by Y the City of Beaumont. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 17th day of October, 2006. - Mayor Guy N. Goodson - 10 October 17,2006 Consider authorizing the City Manager to execute a contract with the Southeast Texas Regional Planning Commission for the administration of disaster recovery funds City of Beaumont 1179J,i c Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tom Warner, Public Works Director MEETING DATE: October 17, 2006 AGENDA MEMO DATE: October 11, 2006 REQUESTED ACTION: Council authorize the City Manager to execute a contract with the Southeast Texas Regional Planning Commission for the administration of disaster recovery funds. RECOMMENDATION The Administration recommends authorizing the City Manger to execute a contract with the Southeast Texas Regional Planning Commission for the Housing & Community Development Department to administer disaster recovery funds. BACKGROUND The City of Beaumont has been awarded a subrecipient allocation of Texas Department of Housing and Community Affairs CDBG Disaster Program funds in the amount of$5,145,000 from the Southeast Texas Regional Planning Commission. Recovery programs, including Emergency Repair ($2,745,000), Home Owner Occupied Rehabilitation($1,155,000)and Single Family Rental Rehabilitation($1,000,000)will assist eligible low to moderate income households with repairs resulting from Hurricane Rita. Assistance to rental property owners will be limited to properties leased, or will be leased,to low to moderate income families. Funds totaling $245,000 will also be used for Administrative costs. BUDGETARY IMPACT Programs and administration will be funded from the Texas Department of Housing&Community Affairs CDBG Disaster Program. PREVIOUS ACTION None. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager, Public Works Director, Development Services Manager CDBG Subcontractor agreement 10/12/2006 CONTRACT BETWEEN SOUTH EAST TEXAS REGIONAL PLANNING COMMISSION Contractor of the TDHCA CDBG Disaster Program AND THE CITY OF BEAUMONT,SUB-CONTRACTOR PARTIES TO THE AGREEMENT This Interlocal Agreement is made and entered into by and between South East Texas Regional Planning Commission(hereinafter called the"SETRPC")acting herein by its Executive Director duly authorized by Resolution of Contractor's executive committee,and The city of Beaumont,Jefferson County,Texas. The parties hereto agree,by the execution hereof,that they are bound to the mutual obligations and to the performance and accomplishment of the tasks described herein. WITNESSETH THAT: WHEREAS,Chapter 791 of the Texas Government code,also known as the Interlocal Cooperation Act, authorizes all local governments to contract with each other to perform governmental functions or services,including administrative entity functions normally associated with the operation of government, such as administration and management of programs designed to assist its citizens;and WHEREAS,the SETRPC is the Contractor for the Texas Department of Housing and Community Affairs (TDHCA)for the Community Development Block Grant Hurricane Disaster Program that was legislated to assist low income individuals and families recover from the devastating effects of Hurricane Rita and to provide them with decent,safe and sanitary conditions;and WHEREAS,the City of Beaumont currently administers U. S.Department of Housing and Urban Development CDBG and HOME programs whose missions are to provide safe,affordable homes to low to moderate income residents;and WHEREAS,under the terms of the agreement between TDHCA and SETRPC, SETRPC must ensure that all applicable state and federal requirements are met concerning the disbursement of funds;and, WHEREAS,projects undertaken by the City of Beaumont pursuant to this contract must be of direct benefit to low and moderate income persons as has been determined by the parties and is established under the guidelines of the Housing and Community Development Act of 1974, as amended; WHEREAS the SETRPC and the city of Beaumont desire to enter into this Contract for the purpose of fulfilling and implementing their respective public and governmental purposes as agreed to by both parties; WHEREAS SETRPC is of the opinion that cooperation in the implementation of the programs and services to be provided by CDBG Disaster Recovery funds will be beneficial to the citizens and the governments located in the city of Beaumont through the efficiency and potential savings to be realized;and WHEREAS SETRPC certifies that it is the designated TDHCA Contractor of the CDBG Disaster Recovery as allocated by the Texas Department of Housing and Community Affairs;and, WHEREAS the Southeast Texas Regional Planning Commission certifies that it is independently authorized to inter into this Contract as a unit of local government as defined under State of Texas Local Government Code,Subtitle C.,Chapter 391; Page 1 of 14 CDBG Subcontractor agreement 10/12/2006 NOW THEREFORE,the parties hereto,in consideration of the mutual covenants and conditions contained herein,promise and contract as follows: 1. STATEMENT OF RESPONSIBILITIES—Administrative Entity 1.1. As administrative entity,the South East Texas Regional Planning Commission(SETRPC)shall have certain legal and administrative entity responsibilities to the Texas Department of Housing and Community Affairs as defined by: 1.1.1. The National Affordable Housing Act of 1990,as amended 1.1.2. Notices of the Office of Community Planning and Development(CPD Notices) 1.2. As administrative entity, SETRPC shall receive CDBG funds designated for Disaster Assistance for Hurricane Rita. 1.3. As administrative entity,the following specific responsibilities are required and reserved to SETRPC: 1.3.1. Execution and approval of all TDHCA documents necessary to request and receive funds; 1.3.2. Receive and respond to citizen input regarding CDBG Program 1.3.3. Receive recommendations from CDBG Disaster Recovery Advisory Committee; 1.3.4. Review budgets; 1.3.5. Authorize vouchers and draw-downs for TDHCA reimbursement 1.3.6. Disbursement of funds to sub-Contractors; 1.3.7. Execute and approve all TDHCA documents necessary to submit annual compliance and performance reports 1.3.8. Completion of all reports to TDHCA; 1.3.9. Provide fiscal accountability duties in compliance with federal regulations; 1.3.10. Respond to all TDHCA inquiries regarding CDBG Program; 1.3.11. Monitoring and evaluation of services and projects provided by any entity receiving CDBG Program funds; 1.3.12. Final approval of all contracts 1.4. SETRPC will provide financial administrative and management functions for the CDBG Disaster Recovery Program. These services will include,but are not limited to: 1.4.1. Preparation of vouchers and draw-downs for reimbursement of CDBG Program funds; 1.4.2. Completion of all strategic planning documents; 1.4.3. Preparation of annual project budgets; 1.4.4. Accounting requirements in accordance with applicable OMB Circulars; Page 2 of 14 CDBG Subcontractor agreement 10/12/2006 1.4.5. Documenting Environmental Review and other compliance regulations; 1.4.6. Development of program guidelines; 1.4.7. Development of projects and activities; 1.4.8. Selection and implementation of activities; 1.4.9. Review of audits for other entities receiving CDBG Program funds; 1.4.10. Maintenance and provision of project and program file documentation in accordance with federal requirements; 1.4.11. Monitoring/Program Evaluation contractors receiving CDBG Program funds; 1.4.12. Conducting of Public Hearings to obtain citizen input;and 1.4.13. Other administrative entity compliance requirements as needed to meet the CDBG Disaster Recovery Program regulations. 2. PERFORMANCE 2.1. Time of Performance: 2.1.1. Services of the city of Beaumont designated herein are to commence on the 28I'day of July,2006,and end on the latter date of the 27`x'Day of July,2008,or the expiration of any extended period for the receipt of CDBG Disaster Recovery funds. 2.1.2. The term of this Contract and the provisions herein shall be extended to cover additional time periods to run concurrently,providing the city of Beaumont complies with this Contract and the Federal regulations governing the CDBG Program. 2.2. Performance Standards 2.2.1. The city of Beaumont will complete the tasks under Statement of Responsibilities—Sub- contractor in a timely,efficient and professional manner. 2.2.2. The city of Beaumont will make monthly reports to SETRPC electronically on the I Oth of each month that contains the following information. 2.2.2.1. Total funds allocated 2.2.2.2. Total funds committed 2.2.2.3. Number of units completed 2.2.2.4. Administrative funds available 2.2.2.5. Administrative funds utilized. 2.3. Sub-contractor—Statement of Responsibility 2.3.1. The city of Beaumont agrees to comply with all applicable sections requirements of Title 24 Code of Federal Regulations,Parts 570 of the U.S.Housing and Urban Development regulations concerning the CDBG Program and all federal regulations and policies issued pursuant to these regulations. 2.3.2. The city of Beaumont agrees to utilize funds made available under this Contract to supplement rather than to supplant funds otherwise available. Page 3 of 14 CDBG Subcontractor agreement 10/12/2006 2.3.3. The city of Beaumont shall collect and submit on a regular basis documentation regarding leverage funds being used in collaboration with CDBG Disaster Recovery funds. 2.3.4. The city of Beaumont shall maintain records regarding applicants who are determined not eligible to receive assistance, including written and prompt notification of denial. 2.3.5. The city of Beaumont shall comply with all state and federal Lead-Paint requirements, including appropriate notices,evaluations,inspections,certifications,and corrective procedures,and including those requirements described in Subparts J,M,and K of 24 CFR Part 570. 2.3.6. The city of Beaumont agrees to 2.3.6.1. Collect and maintain client data demonstrating client eligibility for services provided,including,but not limited to: 2.3.6.1.1. Owner occupied rehabilitation applications 2.3.6.1.2. Reconstruction/replacement housing applications 2.3.6.1.3. Homebuyer applications 2.3.6.1.4 Demolition 2.3.6.2. The city of Beaumont agrees to submit a complete,compliant file for each CDBG program beneficiary. 2.3.7. All customer/client information shall be maintained in a secure and confidential manner, and the city of Beaumont agrees to comply with all local,state,and federal guidelines 2.3.8. The city of Beaumont agrees to affirmatively market all properties and/or programs to eligible low or moderate-income residents as described in 24 CFR 570. 3. CONTRACT SUSPENSION/TERMINATION 3.1. If,through any cause,the City of Beaumont shall fail to fulfill in a timely and proper manner its obligations under this Agreement,or if the city of Beaumont shall violate any of the covenants, agreements,or stipulations of this Contract, SETRPC shall,upon concurrent opinion of the CDBG Disaster Recovery Housing Advisory Committee,have the right to terminate this Contract by giving written notice to the city of Beaumont of such termination and specifying the effective date thereof at least thirty(30)days before the effective date of such termination. 3.1.1. In such event,all finished or unfinished documents,data,maps,studies,surveys, drawings,models,photographs and reports prepared by the city of Beaumont under this Contract shall,at the option of SETRPC(or subsequent Administrative entity)become the property of SETRPC. The city of Beaumont shall be entitled to receive just and equitable compensation for any work satisfactorily completed hereunder. 4. COMPENSATION 4.1. Minimum Financial Standards Requirement 4.1.1. No compensation may be paid to the City of Beaumont until a qualified Certified Public Accountant has provided written certification to SETRPC that the city of Beaumont is in full compliance with the standards set forth in OMB A-102. Page 4 of 14 CDBG Subcontractor agreement 10/12/2006 4.2. Maximum Compensation 4.2.1. The TDHCA CDBG Disaster Recovery program specifically limits administrative costs to ten percent(10%)the allocation. The City of Beaumont will receive 5%of its total allocation for administrative purposes. 4.3. Compensation Structure 4.3.1. The city of Beaumont warrants and acknowledges that no other compensation will be paid for administration of the CDBG program under this Contract. 4.4. Definition of Administrative Costs: 4.4.1. The following are some specific administrative/project delivery costs as defined by the CDBG Disaster Recovery program that may be allowed: 4.4.1.1. The cost of any of the following items,when the item does not result in a beneficiary,as defined by the CDBG program, is an administrative cost. 4.4.1.1.1. Environmental assessments,reviews or tests; 4.4.1.1.2. Inspections 4.4.1.1.3. Work write-ups,specifications,or scopes of services 4.4.1.1.4. Architectural drawings or architectural work of any type 4.4.1.1.5. Loan processing 4.4.1.1.6. Relocation services 4.4.1.1.7. Assistance necessary to minimize hardship 4.4.1.2. If any of these items result in a beneficiary,then the item can be assigned as a project cost. 4.4.1.2.1. The city of Beaumont acknowledges and agrees to accept full responsibility to define,at the time of submission for reimbursement,whether an item is an administrative or project cost. 4.4.1.2.1.1. A project cost shall be defined by a street address and a beneficiary name at the time of submission 4.4.1.2.1.2. The city of Beaumont acknowledges and agrees that a cost submitted as administrative entity cost cannot later be changed to a project cost 4.4.1.2.1.3. The city of Beaumont acknowledges and agrees that a cost submitted as a project cost shall be converted to an administrative entity cost if the project proves infeasible. 4.4.2. Indirect Costs 4.4.2.1. The city of Beaumont may utilize an indirect cost rate allocation if,and only if,they have submitted a certified Indirect Cost Allocation Plan to its state cognizant agency. 4.5. Payment Structure 4.5.1. The city of Beaumont shall be reimbursed only for those items that are eligible expenses under the CDBG program Page 5 of 14 CDBG Subcontractor agreement 10/12/2006 5. PROGRAM INCOME 5.1. Program Income means gross income,including interest earned on CDBG Program funds or received by the City of Beaumont,which is directly generated from the use of CDBG Program funds. 5.1.1. When program income is generated by an activity that is only partially assisted with CDBG Program funds,the income shall be prorated to reflect the percentage of said funds 5.1.1.1. The definitions to be utilized are contained in CPD Notice 97-9. 5.1.2. Income generated by a project which is funded with program income,is also program income 5.2. The city of Beaumont shall report monthly all program income as defined at 24 CFR Part 570 generated by activities carried out with CDBG funds made available under this contract. 5.3. The city of Beaumont will track and account for any program income as required by HUD and outlined in HUD CPD Notice 97-9. 5.4. Any program income shall be returned to the State of Texas. 6. ADMINISTRATIVE ENTITY AND INSURANCE REQUIREMENTS 6.1. Financial Management: It is understood by the City of Beaumont that CDBG funds are subject to the Federal Government's Office of Management and Budget circulars: 6.1.1. No.A-87, "Cost of Principles for State,Local,and Indian Tribal Governments" 6.1.2. No.A-133, "Audits of State and Local Governments,"and 6.1.3. No.A-102, "Grants and cooperative agreements with state and local governments" 6.2. Policies and Procedures 6.2.1. The city of Beaumont must establish and use a set of written accounting policies and procedures which meet the minimum standards established by the relevant OMB circulars for contract accounting. 6.2.1.1. Standards must include adequate internal controls and maintaining necessary source documentation for all costs incurred. 6.3. Audit 6.3.1. If the city of Beaumont expends$300,000 or more in Federal funds a year,the city shall have an audit conducted in accordance with the Federal Governments'Office of Management and Budget Circular No.A-133. 6.3.1.1. The audit shall be made by an independent auditor in accordance with generally accepted government auditing standards covering financial and compliance audits on funds provided under this Contract. 6.3.1.2. The city of Beaumont shall provide SETRPC with a copy of this audit within six(6) months of the ending of the city's fiscal year(s)coinciding with this Contract. 6.3.2. If the city of Beaumont expends less than$300,000 in Federal funds per fiscal year the city shall submit to SETRPC a copy of its annual audit within six(6)months of the close of the city's fiscal year. Page 6 of 14 CDBG Subcontractor agreement 10/12/2006 6.4. Documentation and Record-Keeping: The city of Beaumont shall maintain all records required by the federal regulations specified in 24 CFR Parts 91 570 and that are pertinent to the activities to be funded under this Contract. Such documentation shall be in a manner that conforms to HUD accounting practices,OMB Circular A-87,and CDBG Disaster Program Grant Regulations 24 CFR Parts 91 and 570. Such records shall include,but not be limited to: 6.4.1. Records providing a full description of each activity undertaken; 6.4.2. Records demonstrating that each activity undertaken meets one of the eligible activities of the CDBG Disaster Recovery Program; 6.4.3. Records required to document the acquisition,improvement,use or disposition of real property 6.4.4. Records documenting compliance with the fair housing and equal opportunity components of the CDBG Program; 6.4.5. Financial records as required by,Part 570,24 CFR and OMB Circulars A-102;and 6.4.6. Other records necessary to document compliance with Subpart F,G,and H of 24 CFR Parts 570. 6.5. Retention: Records shall be maintained in accordance with requirements prescribed by the U.S. Department of Housing and Urban Development under CDBG reg. 6.5.1. Specifically,the city of Beaumont shall maintain the required records for the required periods under the CDBG regulations as defined in Chapter V,Part 570,24 CFR. 6.5.2. In the event of expiration or termination of this contract the city of Beaumont shall provide all required records to SETRPC. 6.6. Access to Records: At any time during normal business hours and as often as SETRPC,the Texas Department of Housing and Community Affairs and/or the Comptroller General of the United States may deem necessary,there shall be made available to SETRPC,the Texas Department of Housing and Community Affairs,and/or representatives of the Comptroller General for examination,all of the city of Beaumont's records with respect to all matters covered by this Contract and the city of Beaumont shall permit said entities to audit,examine,and make excerpts or transcripts from such records,and to make audits of all contracts,invoices,materials, payrolls,records of personnel,conditions of employment,and other data relating to all matters covered by this Contract. 6.7. Information on File: The city of Beaumont must have on file and provide access to,current copies of- 6.7.1. Documentation of governmental status; 6.7.2. Copy of city statutes; 6.7.3. Any license applicable to the city of Beaumont's proposed activities; 6.7.4. Listing of the current mayor and city council(including name,address,occupation, position on council,and tenure); 6.7.5. Current organizational chart showing management and staffing structure; 6.7.6. The city of Beaumont's written personnel(including staff and volunteers)policies; 6.7.7. The city of Beaumont's written accounting policies and procedures; Page 7 of 14 CDBG Subcontractor agreement 10/12/2006 6.7.8. The city of Beaumont's written procurement policies and procedures;and 6.7.9. Work plan or administrative entity/program guidelines based on the description of the Program and Activities in Section I of this contract and which specifies: 6.7.9.1. The major tasks or activities to be performed under this contract; 6.7.9.2. Eligibility requirements for participation and procedure for verification of information related to storm damage and any assistance received by the beneficiary from FEMA, insurance,etc.; 6.7.9.3. How activities or tasks will be performed; 6.7.9.4. The measurable objectives for each task;and 6.7.9.5. The time frame within which the tasks will be accomplished. 6.8. Procurement: the city of Beaumont shall comply with all SETRPC, State,and Federal policy concerning the purchase of equipment and shall maintain an inventory record of all non- expendable personal property as defined by such policies as may be procured with funds provided herein. 6.8.1. The City of Beaumont shall procure materials in accordance with the requirements of Attachment O of OMB Circular A-110,Procurement Standards,and shall subsequently follow Attachment N,Property Management Standards,covering utilization and disposal of property. 6.8.2. All program assets(unexpended program income,property,equipment,etc.)shall revert to SETRPC to be held on behalf of the State of Texas upon termination of this Contract, unless specified otherwise in writing. 6.9. Property Records: The city of Beaumont shall maintain real property inventory records that clearly identify properties purchased, improved,or sold. Properties retained shall continue to meet eligibility criteria and shall conform with the restrictions specified in Subparts E and F 24 CFR Part 570. 6.10.Close-Outs: The City of Beaumont's obligation to SETRPC shall not end until all close-out requirements are completed. Activities during this close-out period shall include,but are not limited to,making final payments,disposing of program assets(including the return of all unused materials,equipment,unspent cash advances,program income balances,and receivable accounts to SETRPC to be held on behalf of the State of Texas). 6.10.1. All records generated under the Contract shall be maintained at the city of Beaumont. 6.11.Insurance: The city of Beaumont shall observe sound business practices with respect to providing such bonding and insurance as would provide adequate coverage for services offered under this Contract,and will ensure that any contractor or subcontractor that is utilized during the performance of the work described in this Contract is adequately covered. 6.11.1. The City of Beaumont will comply with applicable workers' compensation statues and will obtain employers' liability coverage where available and other appropriate liability coverage for program participants,if applicable. 6.11.2. The city of Beaumont will maintain adequate and continuous liability insurance on all vehicles owned, leased or operated by the city. All employees of the city of Beaumont who are required to drive a vehicle in the normal scope and course of their employment must possess a valid Texas driver's license and automobile liability insurance. Evidence of the employee's current possession of a valid license and insurance will be maintained on a current basis in city of Beaumont's files. Page 8 of 14 CDBG Subcontractor agreement 10/12/2006 6.11.3. Actual losses not covered by insurance as required by this Section may not be allowable costs under this Contract,and will remain the sole responsibility of the city of Beaumont or applicable party involved. 7. PERSONNEL AND PARTICIPANT CONDITIONS 7.1. Independent Contractor: Neither the city of Beaumont nor its employees are considered to be employees of SETRPC for any purpose whatsoever. The city of Beaumont is considered to be an independent contractor at all times in the performance of the scope of services described herein. 7.1.1. The city of Beaumont further agrees that neither it nor its employees are entitled to any benefits from SETRPC under the provisions of the Worker's Compensation Act of the State of Texas or to any of the benefits granted to employees of SETRPC under the provisions of the Personnel Policies as now enacted or hereafter amended. 7.1.2. The city of Beaumont certifies that it will establish,publish and post a statement of its policies and requirements on maintaining a drug free workplace which complies with the "Drug Free Workplace Act"(P.L. 100-690)and shall require all providers of services under this Contract to comply with Drug Free Workplace requirements of the above noted Act. 7.2. Personnel: The City of Beaumont represents that it has,or will secure,all personnel required in performing all of the services required under this Contract. Such personnel shall not be employees of or have any contractual relationships with SETRPC. 7.2.1. All the services required hereunder will be performed by the city of Beaumont or under its supervision and all personnel engaged in the work shall be fully qualified and shall be authorized or permitted under state and local law to perform such services. 7.2.2. Any work or services subcontracted hereunder shall be specified by written contract or agreement and shall be subject to each provision of this Contract. 7.2.3. The city of Beaumont shall have in its possession a documented set of personnel policies and procedures,including fringe benefits,if any,available to its employees that has been formally adopted by its city council. Such a document shall be made available for inspection and determination by the SETRPC as to its acceptability. 7.3. Prohibited Activity: The city of Beaumont is prohibited from using funds provided herein or personnel employed in the administration of the program for political activities,sectarian,or religious activities, lobbying,political patronage,and nepotism activities. 7.3.1. Hatch Act: The city of Beaumont agrees that no funds provided,nor personnel employed under this contract,shall be in any way or to any extent engaged in the conduct of political activities in violation of Chapter 15 of Title V United States Code. 7.4. Compliance with Civil Rights Laws and Executive Orders: 7.4.1. The city of Beaumont will comply with the provisions of,and act in accordance with,all federal laws,rules and regulations,and Executive Orders related to equal employment opportunity,affirmative action,equal access to programs and services,and the enforcement of Civil Rights, including,but not limited to 7.4.1.1. Section 3 of the Housing and Urban Development Act of 1968; 7.4.1.2. Sections 103 and 109 of the Housing and Community Development Act of 1974,as amended 7.4.1.3. Title VI and Title VII of the Civil Rights Act of 1964,as amended; 7.4.1.4. Title VIII of the Civil Rights Act of 1968; 7.4.1.5. Sections 502,503,504 and 505 of the Rehabilitation Act of 1973; Page 9 of 14 CDBG Subcontractor agreement 10/12/2006 7.4.1.6. Equal Pay Act of 1963; 7.4.1.7. Age Discrimination in Employment Act of 1967,as amended; 7.4.1.8. The Vietnam Era Veterans Readjustment Act of 1974; 7.4.1.9. The 1986 U. S.Immigration Reform and Control Act; 7.4.1.10. Americans with Disabilities Act of 1990; 7.4.1.11.Executive Order 11063 of 1962;and 7.4.1.12.Executive Order 11246 of 1965,as amended. 7.4.2. The city of Beaumont will not discriminate against any employee or applicant for employment because of race,color,religion,sex,age,national origin,or ancestry,physical or mental handicap,marital/familial status or Vietnam era or disabled veteran status. 7.4.3. The city of Beaumont will make reasonable accommodation to the known physical or mental handicap of an otherwise qualified employee or applicant for employment. 7.4.4. The city of Beaumont will ensure and maintain a working environment free of sexual harassment and other unlawful forms of harassment, intimidation,and coercion in all facilities at which the city of Beaumont's employees are assigned to work. 7.4.5. The city of Beaumont will in all solicitations or advertisements for employees placed by or on behalf of the city, state that all qualified applicants will receive consideration of employment without regard to race,color,religion,sex,age,national origin or ancestry,or physical or mental handicap. 7.4.5.1. The city of Beaumont agrees to post in conspicuous places,available to employees and applicants for employment,notices setting forth the provisions of this nondiscrimination clause. 7.4.5.2. EEO/AA Statement:The city of Beaumont will, in all solicitations or advertisements for employees placed by or on behalf of the city,state that it is an Equal Opportunity or Affirmative Action employer. 8. GENERAL REQUIREMENTS AND CONDTIONS 8.1. Debarment, Suspension,Ineligibility and Exclusion Compliance: 8.1.1. The city of Beaumont certifies that it has not been debarred,suspended or otherwise found ineligible to receive funds by an agency of the executive branch of the federal government. 8.1.2. The city of Beaumont agrees that should any notice of debarment, suspension, ineligibility or exclusion be received by the city,the city will notify SETRPC immediately. 8.1.3. The city of Beaumont agrees to not procure or subcontract with any agency,organization, or Contractor that has been debarred,suspended,or otherwise found ineligible to receive funds by an agency of the executive branch of the federal government. Page 10 of 14 CDBG Subcontractor agreement 10/12/2006 8.2. Use of Funds for Sectarian Religious Pu oses: The city of Beaumont covenants and agrees that no funds awarded through this program will be used for sectarian religious purposes,and specifically that 8.2.1. There will be no religious test for admission for services; 8.2.2. There will be no requirement for attendance at religious services; 8.2.3. There will be no inquiry as to a client's religious preference or affiliation; 8.2.4. There will be no proselytizing;and 8.2.5. Services provided will be essentially secular. 8.3. Lobbying: The city of Beaumont understands that utilization of any federally appropriated funds provided the city by SETRPC pursuant hereto to influence or attempt to influence any member or employee of the Executive or Legislative branches of the federal government with respect to a covered federal action is prohibited. 8.3.1. The city of Beaumont further agrees that it shall comply with the certification and disclosure requirements of the applicable regulations. 8.4. Publication,Reproduction and Use of Materials: 8.4.1. If this Contract results in any book,publication,video,audio or any other copyrightable material,then the material produced with Federal funds shall be in the public domain. 8.5. Identification of Documents 8.5.1. All reports,maps,and other documents completed as a part of this contract,other than documents exclusively for internal use within The city of Beaumont shall contain the following information on the front cover or title page(or in the case of maps, in an appropriate block): TDHCA CDBG Disaster Recovery Program,month and year of the preparation, SETRPC and descriptive title. 8.6. Compliance with Laws: 8.6.1. In performing the services required hereunder,the city of Beaumont shall comply with all applicable laws,ordinances,and codes of the federal,state and local governments,including environmental protection regulations. Failure to comply with the Administrative entity Requirements shall constitute grounds for termination of this Contract. 8.7. Insurance and Bondins: 8.7.1. The city of Beaumont shall carry sufficient insurance to protect contract assets from loss due to theft, fraud,and/or undue physical damage. 8.8. Assi nability: 8.8.1. The city of Beaumont shall not assign any interest in this Contract,and shall not transfer any interest in the same(whether by assignment or notation),without the prior written consent of SETRPC thereto. 8.9. Conflict of Interest: 8.9.1. The city of Beaumont agrees to abide by the provisions of Subpart H 24 CFR Part 570.356 with respect to conflicts of interest,and covenants that it presently has no financial interest and shall not acquire any financial interest,direct or indirect,which would conflict in any manner or degree with the performance of services required under this contract. 8.9.2. In the procurement of supplies,equipment,construction and services by contractors,the conflict of interest provisions in 24 CFR 570 and OMB Circular A-110,respectively, shall apply. Page 11 of 14 CDBG Subcontractor agreement 10/12/2006 8.9.3. No member,officer or employee of the contracting agency,or any other who exercises any functions or responsibilities with respect to the programs of the city of Beaumont during his/her tenure or for one year thereafter,shall have any interest,direct or indirect, in any contract or subcontract,or the proceeds thereof,for work to be performed in connection with the program assisted under this Contract. 8.9.3.1. The city of Beaumont shall incorporate,or cause to be incorporated in all such subsequent agreements or sub-agreements,a provision prohibiting such interest pursuant to the purposes of this section. 8.9.4. The city of Beaumont and SETRPC state to the best of their knowledge,no member of the Beaumont City Council and no other officer,employee, or agent of the city of Beaumont who exercises any function or responsibility in connection with the carrying out of the Program or the funds to which this Contract pertains,has any personal interest,direct or indirect,in this Contract. 8.10.Affirmative Action: 8.10.1. Approved Plan: The city of Beaumont agrees that it shall be committed to Affirmative Action principles as provided in the President's Executive Order 11246 of September 24, 1965. 8.10.2. W/MBE: The city of Beaumont will use its best effort to afford minority and women- owned business enterprises the maximum practicable opportunity to participate in the performance of this contract. 8.10.2.1.As used in this contract,the term"minority and female business enterprise"means a business at least fifty-one(5 1)percent owned and controlled by minority group members or women. 8.10.2.2.For the purpose of this definition,"minority group members"are Afro-Americans, Spanish-speaking,Spanish surnamed or Spanish-heritage Americans,Asian- Americans,and American Indians.The city of Beaumont may rely on written representations regarding their status as minority and female business enterprises in lieu of an independent investigation. 8.11.Collective Bargaining: The city of Beaumont will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding,a notice,to be provided by the agency contracting officer,advising the labor union or worker's representative of the city of Beaumont's commitments hereunder,and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 9. LEGAL 9.1. Representation in Proposal: SETRPC has relied on all representations of the city of Beaumont in awarding this contract and the city of Beaumont warrants the accuracy of all representations in said proposal. Misrepresentation in the proposal shall be cause to terminate this contract and the city of Beaumont shall owe all amounts paid to it as liquidated damages should these amounts not be legitimate reimbursements for CDBG Disaster Recovery eligible activities. 9.2. TDHCA CDBG Disaster Recovery Funds Recognition: The city of Beaumont shall insure recognition of the role of TDHCA CDBG Disaster Recovery funds in providing services through this Contract. All activities,facilities,and items utilized pursuant to this Contract shall be prominently labeled as to the funding source. In addition,the city will include a reference to the support provided herein in all publications made possible with funds made available under this Contract. Page 12 of 14 CDBG Subcontractor agreement 10/12/2006 9.3. Notifications: Any notice hand-delivered or sent by mail(with a return receipt which indicates delivery)to the addresses below shall be deemed received for any purposes arising out of the execution of this contract. 10. For SETRPC,notices may be sent to: Chester Jourdan,Executive Director South East Texas Regional Planning Commission 2210 Eastex Freeway Beaumont,TX 77703 409-899-8444 409-347-0138(fax) 10.1.Construction and Severability: If any part of this Contract is held to be invalid or unenforceable, such holding will not affect the validity or enforceability of any other part of this Contract so long as the remainder of the Contract is reasonably capable of completion. 10.2.Enforcement: The city of Beaumont agrees to pay to SETRPC all costs and expenses including reasonable attorney's fees incurred by SETRPC in exercising any of its rights or remedies in connection with the enforcement of this Contract. 10.3.Entire Contract: This Contract contains the entire agreement of the parties and supersedes any and all other agreements or understandings,oral or written,whether previous to the execution hereof or contemporaneous herewithin 10.4.Amendments: The city of Beaumont or SETRPC may amend this Contract at any time provided that such amendments make specific reference to this Contract,and are executed in writing and signed by a duly authorized representative of both organizations. Such amendments shall not invalidate this Contract,nor relieve or release the city of Beaumont or SETRPC from its obligations under this Contract. 10.4.1. SETRPC may, in its discretion,amend this Contract to conform with federal,state,or local governmental guidelines,policies,and available funding amounts,or for other reasons. 10.4.2. If such amendments result in a change in the funding,the scope of services,or the schedule of the activities to be undertaken as part of this Contract,such modifications will be incorporated only by written amendment signed by both the city of Beaumont and SETRPC. 10.4.3. Further,any future change in federal regulations or federal requirements governing the use or eligibility of CDBG Disaster Recovery Program funds are deemed to be immediately incorporated into this Contract and subject to the provisions herein. 10.5.Applicable Law: This Contract shall be governed by and construed and enforced in accordance with the laws of the State of Texas,the by-laws,rules and regulations of SETRPC and the applicable regulations of the U.S. Department of Housing and Urban Development and Texas Department of Housing and Community Affairs. 10.6.Approval Required: The parties hereto state that they are appropriately empowered by their respective Board/City Council to sign this Contract. This Contract shall not become effective or binding until approved by Beaumont City Council and the SETRPC Executive Committee. Page 13 of 14 CDBG Subcontractor agreement 10/12/2006 APPROVED: BEAUMONT CITY COUNCIL ,2006. SOUTH EAST TEXAS REGIONAL PLANNING COMMISSION ,2006 By: Guy Goodson Chester R.Jourdan,Jr. Mayor Executive Director Beaumont,Texas South East Texas Regional Planning Commission Page 14 of 14 TEXAS DEPARTMENT OF HOUSING &COMMUNITY AFFAIRS CDBG PROGRAM Breakdown of Funding Emergency Repairs: Dollar Units Beneficiary SETRPC $5,000,000.00 200 360 Beaumont $2,745,000.00 148 296 Pt. Arthur $3.490.000.00 249 893 Totals $11,235,000.00 597 1549 Owner/Occ Rehab: SETRPC $4,290,000.00 66 165 Beaumont $1,155,000.00 18 45 Pt.Arthur* $560,000.00 20 64 Totals $6,005.000.00 104 274 *Limited to assistance with elevating homes Reconstruction: SETRPC $4,125,000.00 25 70 Sinale Family Rental Rehab: Beaumont $1,000,000.00 50 140 Demolition: SETRPC $385,000.00 77 193 Pt. Arthur $1.250.000.00 250 250 $1.635,000.00 327 443 Total activities $24,000,000.00 1103 2476 11 October 17, 2006 Consider adopting Housing Program Guidelines for Disaster Recovery Programs City of Beaumont Council Agenda Item K g TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tom Warner, Public Works Director MEETING DATE: October 17, 2006 AGENDA MEMO DATE: October 12, 2006 REQUESTED ACTION: Council consider adopting Housing Program Guidelines for Disaster Recovery Programs. RECOMMENDATION The Administration recommends City Council adopt proposed Housing Program Guidelines that will serve as an administrative tool for the federal disaster recovery programs administered by the City. BACKGROUND Each Participating Jurisdiction is required to adopt program guidelines for the federal grant programs it administers. Guidelines for the Residential Emergency Repair Program,Housing Rehabilitation Program, and Rental Rehabilitation Program are attached in substantive form. BUDGETARYIMPACT None. PREVIOUS ACTION None. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager,Public Works Director,Development Services Manager. CITY OF BEAUMONT HOUSING & COMMUNITY DEVELOPMENT TDHCA DISASTER PROGRAM HOUSING REHABILITATION APPLICATION Oualifications: Persons must be Low to Moderate Income. Persons must own or be in process of buying the house that they want to have rehabilitated and it must be their place of residence. Requirements: Application must be filled out and returned to the City of Beaumont, Community Development. All verifications must accompany the application or the application will not be accepted. Verifications: The following verifications are required to be current and up to date: Copy of Deed "Shows that you are the home owner." Income Verification: Social Security, SSI, VA Benefits, AFDC, Retirement, Interest, and or/ employment verifications. "This is for the Total household income." Bank Verification: Checking Accounts, Savings Accounts, Investment Accounts "The most current monthly statement." Mortgage Verification. "If your home is not paid for." Tax Certificate: (City, County, School). There is a four-dollar charge for the certificate. "All of your Taxes must be paid up to date." Copy of Insurance Policy on house "Shows Current Fire coverage on structure." Special Note: There will not be any construction done to any house without all ofthe verifications up to date at time of construction. This usually means that the verifications will have to be resubmitted because of a lengthy waiting period. Grant Amount: The amount of owner occupied housing grants will not exceed $10,000 per residence. Procurement of Contractor: In compliance with HUD CPD-91-01, the City will supply a list of contractors that are currently signed up with the City that you may choose from to rehab your house. The home owner does have the right to choose a contractor other than those supplied by the City. All contractors are required to fill out an application and meet all requirements. Requirements after completion: There will be lien on the property for a period of five years. The amount is a Grant that is released at the end of the five years. The contract is set up as a loan with a 0%interest rate that is amortized at 10% per year. Any remaining balance is forgiven upon completion of contract. The home owner is required to live in the house and maintain it. The home owner is also required to maintain the property taxes and a fire insurance policy on the property in the value of the Grant or higher and that will show the City of Beaumont Housing Services as co-insured. Contract: The home owner enters a contract with the contractor,not with the City. The City Grants the funds to the home owner, inspects the work, and pays the contractor for services rendered. The Contractor is required to give a 1-year warranty on all work. Any manufactures warranty is in addition to this. The Contractor is to complete all regular rehab jobs in 45 calendar days. TDHCA DISASTER PROGRAM HOUSING REHABILITATION APPLICATION CENSUS TRACT AREA: APPLICATION DATE: APPLICATION No.: PROJECT ADDRESS: A. APPLICANT RECORD APPLICANT/CO-APPLICANT: NAME: S.S.#: AGE: NAME: S.S.#• AGE: ADDRESS: HOME PHONE: BUSINESS PHONE: MARITAL STATUS: ( )SINGLE ( )MARRIED ( )DIVORCED O WIDOWED B. FAMILY COMPOSITION and INCOME DATA LIST ALL PERSONS LIVING IN HOUSEHOLD NAME AGE RELATIONSHIP SOURCE OF INCOME MONTHLY INCOME TOTAL NUMBER OF DEPENDENTS TOTAL MONTHLY INCOME TOTAL ANNUAL INCOME C. HOUSING DATA LENGTH OF RESIDENCY IN DWELLING___( )HOME CLEAR OF MORTGAGE ( )MORTGAGED ( )AMOUNT OWED ( )MONTHLY NOTE LIEN HOLDER ADDRESS UTILITIES: ON( ) OFF( ) OWNERSHIP VERIFICATION:( )INHERITANCE ( )DEED OF TRUST( )CONTACT FOR DEED NAME OF HOUSE INSURANCE COMPANY; D. SPECIAL NEEDS HANDICAPPED/CHRONIC ILLNESS: ( )YES ( )NO LIST ANY SPECIAL NEEDS(EXAMPLES-RAMPS, HANDRAILS): E. APPLICANTS CERTIFICATION THE UNDERSIGNED CERTIFY THAT ALL THE INFORMATION CONTAINED IN THIS APPLICATION IS TRUE AND COMPLETE. APPLICANT'S SIGNATURE DATE CO-APPLICANT'S SIGNATURE DATE F. FOR OFFICE USE ONLY ETHNIC DATA: ( )BLACK PROPERTY LOCATION:( )IN TARGET AREA ( )WHO ( )OUTSIDE TARGET ( ) SPANISH ( ) OTHER MEDIAN FAMILY INCOME: ( )EXTREMELY LOW ( )VERY LOW ( ) MODERATE COMMENTS: WATCH OUT FOR LEAD PAINT POISONING PLEASE READ CAREFULLY: Your apartment or house may contain Be sure to tell the rest of your family and substantial amount of lead-based paint, even people who babysit for you about the danger of where HUD regulations regarding lead-based lead poisoning. paint. Look at your walls and ceilings and woodwork Are there places where the paint is peeling: Children get lead poisoning when they eat bits ** Get a broom of stiff brush and remove all of paint that contain lead. If a child eats loose pieces of paint from walls,woodwork,and enough lead paint, his brain will be damaged. ceilings. Sweep up all the pieces of paint and He may become mentally retarded or even die. plaster.Put them in a paper bag or wrap them in newspaper and put the package in the trash Older houses often have layers of lead paint on can. the walls, ceilings, and woodwork. When the paint chips off or when the plaster breaks, **Always keep the floor clear of loose bits of there is real danger for babies and young paint and plaster. children. Outdoors, lead paints and primers may have been used in many places, such as ** Children will pick loose paint off the walls, walls,fences, porches,an fire escapes. so be extra careful about keeping the lower If you have seen you child putting pieces of parts of the walls free of loose paint. paint or plaster in his mouth,you should take ** You can cover up at least the lower part of him to a doctor, clinic, or hospital as soon as walls by moving heavy furniture against them. you can. In the beginning stages of lead poisoning,a child may not seem really sick. Do If you want to know more about how to keep not wait for signs of poisoning. your child safe from lead poisoning, talk to your doctor, public health nurse, or social Of course,a child might eat paint chips or chew worker at the clinic or health department. on a painted railing or window sill while parents aren't around.Has your Child? I have received a copy of the required OWNER'S SIGNATURE DATE notification, which is evidenced by my signature. SPOUSE'S SIGNATURE DATE r I have been advised that this property was built before 1950 and may contain lead-based paint. INSPECTOR'S SIGNATURE DATE Been especially cranky?Is he eating very little? Does he throw up or have stomach aches often? These could be signs of lead poisoning. Take him to a doctor's office or too a clinic. Sir: This letter is to certify that (Patient's name) has been examined by me, and in my opinion meets the following guidelines as defined by the Federal Bureau of Census for persons with severe disabilities. The Bureau of Census Regulation 570.208 (a)(2) (I) (A) revised November, 1995, defines a person with severe disability if they: "(a) use a wheelchair or had used another special aid for six months or longer; were unable to perform one or more functional activities or needed assistance with an activity of daily living (ADL) or an instrumental activity of daily living(IADL); © were prevented from working at a job or doing housework; or (d) had a selected condition including autism, cerebral palsy, Alzheimer's disease,senility,dementia,or mental retardation. Persons who were under 65 years of age and who were covered by Medicare or who received SSI were considered to have a disability (and a severe disability). Functional activities include seeing, hearing, having one's speech understood, lifting and carrying, walking up a flight of stairs, and walking. The ADL's include getting around inside the home. Getting in and out of bed or a chair, bathing,dressing, eating, and toileting. The IDAL's include going outside the home, keeping track of money or bills, preparing meals, doing light housework, and using the telephone." Physician's Name (Print or Type) Date Physician's Signature *Note: If there are any special needs which should be addressed concerning this patient, please outline them on a separate page and attach to this document. Housing Services City of Beaumont Linda M. Semien 801 Main Street, Suite 225 Beaumont, Texas 77701 TDHCA DISASTER PROGRAM HOUSING REHABILITATION PROGRAM GUIDELINES Introduction Conversion and expansion of the nation's housing stock is one of the specific objectives to be met by the expenditure of Community Development Block Grant(CDBG)funds. Title I ofthe Housing and Community Development Act provides that the principal beneficiaries ofthese expenditures should be person of low and moderate income. Affordable housing is a national priority and ranks as one ofthe foremost legislative agenda items. The City ofBeaumont has participated in the Community Development Program since its inception in 1975. One of its major activities is the Housing Rehabilitation Program which was designed to provide grants to low and moderate income persons primarily residing in designated CDBG strategy areas. The goal of the Housing Rehabilitation Program has been to prevent deterioration of older City neighborhoods and to provide safe,affordable housing for economically disadvantaged residents. Assistance has been directed toward individuals who own their own homes and investors with rental properties that provide units for low and moderate income persons. Puroose The purpose ofthe Housing Rehabilitation Program is to provide financial and technical assistance to eligible homeowners who need moderate or emergency repairs to keep their property safe and habitable, thereby prolonging the useful life of the structure, preserving the viability of the neighborhood and preventing slum conditions when economically feasible. Funding and Administration The housing rehabilitation activity is conducted by the Housing Services Division which is part ofthe Public Works/Planning Department. Funding for direct costs comes from annual CDBG allocations. The City of Beaumont funds most of the indirect costs from its general operations' budget. Eheibility Criteria Eligibility for housing rehabilitation assistance is established by criteria consistent with HUD income and housing code standards, as well as local City housing goals and objectives. Types of financial assistance include deferred grants. rehabde The program guidelines for each applicant are as follows: 1. Must meet HUD income eligibility requirements 2. 70% of annual allocation will be used to serve eligible elderly and/or disabled applicants 3. Remaining 30% of funds to be used for all other eligible applicants on a first come, first served basis Applicant Eligibility In order to be considered for housing rehabilitation assistance,the applicant must meet the following criteria: 1. The Owner must have clear title, and either reside in , or have moved out of the house temporarily with intent to move back into the house for which they request assistance; 2. The owner must have owned their property for at least one (1) year prior to submitting an application for rehabilitation assistance; 3. Provide proof that mortgage payments are current; 4. Provide proof that taxes are current and hazard insurance is in force prior to beginning construction; and 5. Family income does not exceed the current HUD Office of Economic Affairs'limits defining low and moderate income levels. Property Eligibility Rehabilitation work shall be limited to those properties that are determined in need of repairs in order to comply with the City's Standard Housing Codes. The properties must either be located within the CDBG strategy area or must provide shelter for primarily low income residents. Scope of Work The extent of rehabilitation work specified shall be determined by the Housing Inspector's findings of Standard Housing code deficiencies and subsequent cost estimates for the necessary repairs to bring the house up to building code standards. In some cases,additional improvements beyond minimum standards may be warranted, especially in instances where serious violations may become Standard Housing Code deficiencies within the succeeding twelve (12) months. In most cases, however, general property improvements, which may be desirable but are not required to meet Standard Housing Code, shall not exceed ten percent (10%) of the repair cost. In addition to necessary Standard Housing Code repairs, specifications may include energy conservation improvements. Lead-Based Paint Regulations Changes On September 15, 1999,HUD issued a new Federal lead-based paint regulation implementing Title X of the Housing and Community Development Act of 1992. This regulation makes many important changes in the lead-based paint requirement applicable to housing funded through HUD's Community Planning and Development(CPD)Programs. State and local jurisdictions that receive funding from the Community Development Block Grant (CDBG) Program, HOME Program, McKinney Act homeless programs and other CPD programs were required to implement the new requirements by September 15, 2000. Bid Process The proposed bid process is as follows: (A) Contractors will be referred to owners from approved contractors list. (B)Owners will solicit bids from the approved contractors list.(C)Owner will select the contractor they wish to perform the work from the two lowest bids within ten percent ofHousing Service Staff estimates. Staff and the owner will review the selected contractor's bid for cost, thoroughness,reasonableness and make a final decision on accepting,modifying or rejecting the bid. As an alternative, Housing Services Staff will retain the process of completing rehab cases through the formal bid process when necessary. Rehabilitation Categories The scope of work shall be defined and limited by the cost estimate to bring the property up to Standard Housing Code, Section 8, and other codes when applicable,except in those cases where the structure is too deteriorated to be repaired to Standard Housing Code, but needs immediate emergency repairs to make the structure habitable. Each current year's funding level of repairs shall be made in order to assume unit production acceptable to meet HUD guidelines, as well as to maximize the available fund to benefit the greatest number of eligible applicants. Estimated cost in excess of$15,000 for repair shall render the project economically unfeasible. In cases where lead is present and the cost estimate goes over the$15,000 grant amount, additional funds up to $24,000 will be made available. Any amount that exceeds the maximum amount of$15,000 must be approved by the Executive Office or its designee. The following table indicates the two(2)rehab categories. Category Estimated Cost Range Intensive Rehab $15,000424,000 Moderate Rehab $5,00-$14,999 Project Selection Each applicant's property will have a cost write-up after thorough evaluation of the property's condition is made to determine the extent of work necessary to meet applicable Standard Housing Code. If the cost exceeds the $15,000 limit, the owner will be advised that the property is economically unfeasible and unless other financial resources or alternative housing programs are available, no further action will be taken. For cost estimates falling within the defined rehab categories,work will proceed on a first come,first served basis. Otherwise,the applicant will be placed on a waiting list and receive assistance as funds become available. Financial Assistance Financial assistance for housing rehabilitation work may be given to eligible applicants in the form of a grant. The original amount of the grant shall be reduced by 20% each year with the remaining balance terminated at the end of the 5th year of the loan, provided all obligations are met. Limitation of Assistance All eligible applicants must live within the city limits of Beaumont.Financial assistance will be offered only once to homeowners requesting rehabilitation work. Security for Rehabilitation Deferred Loans All rehabilitation assistance, excluding emergency repair grants, will be secured by a properly executed real estate lien note and deed of trust in favor of the City of Beaumont. Cancellation of Lien To prevent windfall profits from the resale of rehabilitated property,the City ofBeaumont will place a lien upon the property for the amount of the deferred loan. If any of the following events occur during the term of the deferred loan,arrangements must be made with the City for payment of the remaining balance: 1. The sale of all or any interest in the subject property; 2. The death of the original loan recipient (in case of a husband and wife, the death of both); if both parties to this loan should die during its terms, the heirs would be required to assume and pay the remaining portion; or, 3. The breach of terms of the lien. Anneal Process The Rehabilitation Board of Adjustments and Appeals shall consider the written appeal of the applicants who feel that due process has been denied. The cause of such appeal shall be, but not limited to: 1. Denial of deferred loan due to excessive rehab cost estimates exceeding program guidelines; 2. Cases in which the applicant feels inaccurate information may have been included on the application which adversely affected their qualifications. The Housing Services Division shall advise applicants of their right to appeal and prepare the necessary documents for the Board resolution. Appeals must be postmarked within ten(10)days of the date of the letter of notification rejecting the application. lugTDHCA Disaster Program City of Beaumont ®� Residential Emergency Repair Program Guidelines Effective: October 17,2006 The objective of the Residential Emergency Repair Program is to provide assistance to homeowners with an urgent need for emergency repairs when they are without sufficient resources to make those repairs themselves. This program is designed to assist with "urgent need"repairs resulting from Hurricane Rita. Who is Eligible? As a homeowner, you may be eligible for assistance under this program, if you meet all the following conditions: A Your total household income is at or below 80% Median Area Income. A You are age 62 and above and/or disabled. First priority will be given to persons age 62 and above who are also disabled. Second priority will be to persons age 62 and above. Third priority will be to persons who are disabled. There are no income limits imposed upon senior citizens. Fourth priority will be to all other qualified households on a first come, first served basis. 0 Your home (single-family dwelling unit) must be located within the city limits of the City of Beaumont. A Your home requires an urgent repair, which if left unattended, would jeopardize the health and safety of the occupants. Needed repairs must have resulted from hurricane force winds and/or rain. A You must own and occupy your property as your principal residence on a year-round basis. 0 You must hold the title to the property or contract for deed or contract for sale. Contract for Deed or Contract for Sale is subject to time restrictions. You must have lived and been in the process of buying the property for a minimum of one(1)year. The period of time an applicant has lived in a property under a lease may be taken TDHCA Disaster Program-Residential Emergency Repair Program ■ Effective October 17,2006 Pagel of 5 into consideration in determining the one(1) year. A You must be a United States citizen or legal resident alien. A You must complete the application process and your application and requested repairs must be approved by the City of Beaumont. Please note that all other disaster recovery funds, including but not limited to homeowner's insurance proceeds and funds from FEMA, Small Business Administration (SBA), Red Cross, etc., must be used and evidence provided, prior to the disbursement of any Residential Emergency Repair funds. A Your property must meet all environmental restrictions and regulations including floodplain, historical, lead-based paint, etc. Properties in the 100-year floodplain or floodway are not eligible for assistance. If the inspection reveals any code violations that will not be repaired by the program, the homeowner will be advised and encouraged to apply to the City's Minor Repair Program. What Types of Repairs are Eligible? Generally, repairs that are an urgent need are eligible for assistance. Community Development staff will inspect the unit to determine if the repair is eligible. Eligible Repairs: ❑ repairs necessary to protect the health and safety of the household members. ❑ repairs may include mechanical, plumbing, electrical, roofs, walls, floors, ceilings, foundations, doors, windows, cooling and heating systems, building related deficiencies, or repairs that involve hazards that would cause the unit to continue to deteriorate. The following are some examples of eligible repairs: Plumbing, Sewer Lines, Electrical Wiring Systems, Roofs, etc. ❑ repairs not covered by insurance claims or other disaster related assistance. Please note that all other disaster recovery funds including but not limited to homeowner's insurance proceeds and funds from FEMA,SBA,Red Cross,etc., must be used,and evidence provided to Community Development Staff, prior to the disbursement of any Residential Emergency Repair Program funds. Such evidence includes FEMA damage assessment report, Insurance Adjuster's report or independent work write-up from a bonded contractor,paid receipts and/or canceled checks. If owner has already spent insurance funds for repairs,owner must provide proof of payment and detailed documentation of work completed. TDHCA Disaster Program-Residential Emergency Repair Program It Effective October 17,2006 Page 2 of 5 ❑ funds must be used for buying materials and contracted labor. ❑ removal of trees and debris Repairs That Are Not Eligible: ❑ cosmetic repairs. Cosmetic repairs will not be carried out under the program unless they are necessary to make the immediate area,where the repair was completed,match the surrounding area as much as possible. ❑ rental property and mobile homes are not eligible for assistance. ❑ there is no requirement that these repairs bring the house up to minimum property standards. What are the Maximum limits for the Program? Eligible housing units may be assisted once. ❑ $24,000—any repairs over$24,000 will not be approved ❑ Lifetime Maximum: $24,000. Exception: Assistance may be provided upon reoccurrence of a hurricane and funding is made available to the City and approved for such assistance. Repairs Completed: Once the repairs are completed and the contractor receives payment, no additional repairs will be completed. Limited Funds: Staff responds to requests for Emergency Repairs on a first-come- first-served basis from eligible applicants based upon the date the completed application is received. Although a specific amount of funding has been approved by the Beaumont City Council, all program funding is subject to the availability of federal Community Development Block Grant funds. Does the Repair Need to be Paid Back? Assistance is provided in the form of a grant and does not need to be paid back. How do I Apply? 1. Contact the Housing Services office for an application and inspection. 2. Complete the application process. 3. Submit required documentation. What Happens After I Apply? ❑ Community Development staff will complete an inspection to determine if the project is eligible. If eligible, you will receive instructions on how to proceed. ❑ Community Development staff will verify all the application information and environmental restrictions and regulations. Application and repair requests will be submitted for review to Housing Services. If any Information is found to be intentionally falsified,the application will be rejected and the applicant will not be allowed to reapply to this program. TDHCA Disaster Program-Residential Emergency Repair Program Effective October 17,2006 Page 3 of 5 ❑ You will receive written notice of the date the application is accepted or rejected with details of the decision if the application is rejected. 0 In the event your house is 45 years old or older, the Texas Historical Commission may have to be noted. 0 After your application has been accepted, get at least two written estimates for the same work. If you are unable to get two estimates, contact Housing Services. THE CONTRACTOR YOU SELECT MUST COME TO OUR OFFICE LOCATED AT CITY HALL, ROOM 226,PRIOR TO BEGINNWNQ ANY WORK TO SKIN AN ASSURANCE STATEMENT THAT THE CITY'S STANDARD CONTRACTOR'S GUIDELINES WILL BE ADHERED TO. NO PAYMENT WILL BE MADE FOR REPAIRS BY A CONTRACTOR WHO HAS NOT PROVIDED SUCH ASSURANCE STATEMENT ❑ When painted surfaces will be affected in a house built before 1978, the area will be tested for lead based paint. A lead based paint inspection and/or risk assessment shall be conducted by a licensed risk assessor. If your house is found to have lead-based paint hazards, hazard reduction techniques will be utilized. 0 A work write-up for the repairs needed to correct the health or safety-related problem must be submitted. The work write-up may be in the form of a FEMA or insurance adjuster's damage assessment report, or from an independent bonded contractor. Only contractors who carry a minimum of$100,000 liability insurance may perform the work. You may select any interested contractor who documents appropriate insurance coverage and is not on the most recent list of contractors who are ineligible to work on projects involving federal funds. ❑ The contractor/repair company will provide warranty information for work completed. A copy of warranty information must be submitted to Housing Services. 0 Upon final inspection approval, the contractor may submit an invoice. The payment request will be processed upon project approval and the contractor can expect payment within 15 wonting days from the date invoice was approved. What The Program Is Not Although the Residential Emergency Repair Program is designed to respond to a variety of problems, it has limits and should not be confused with other programs offered by the City of Beaumont Community Development Division. A It is not a rehabilitation program. The most recent item, system, or structure to fail in a home may prompt the homeowner to seek assistance from the Residential Emergency Repair Program while many other items are also in need of repair. The Residential Emergency Repair Program is designed to respond to urgent needs resulting from hurricane force winds and/or rain and, that if left unrepaired, would lead to further deterioration or to the house becoming unlivable. The City of Beaumont, Community Development Division offers a Minor Repair Program that can address many more issues than Residential Emergency Repair. TDHCA Disaster Program-Residential Emergency Repair Program Effective October 17,2006 Page 4 of 5 • It is not assistance for home sellers. The homeowner must affirm that they intend to live in the home for the next 12 months as far as foreseeable. The funds are designed to keep a homeowner living in their home rather than assist them in selling it. If it is determined after repairs are made that residency requirements have been falsified, the City may require that all funds be repaid. • It is not a remodel service. To extend assistance to as many households as possible, systems and items should be repaired rather than replaced, if possible. Tips on Contracting for Home Repair Work We encourage you to compare prices. Get at least two written estimates for the same work when possible. Ask for local references from contractors. You can also call the Texas Department of Licensing and Regulation at(800) 803-9202 to see if a contractor has a current license in good standing. • Don't agree to or sign anything you do not understand.Ask questions-know what you are getting for your money. • Don't be pressured into purchasing items or contracting for repairs you don't want or really need. • Ask about guarantees and warranties on the materials and the labor. • Never pay for repair work in advance. (Although you may have to pay a deposit if your project should require the ordering of special items or materials.) • Ask the contractor if he will provide all the permits that are required for the repair work. • It is a good idea to let your insurance company know if your roof is replaced so that your policy will accurately reflect the age of your new roof, in case of any future claim. The program is administered by the City of Beaumont Community Development Division and funded by the federal Community Development Block Grant Program. For questions about this program or to obtain an application, please contact: City of Beaumont Housing& Community Development Department 801 Main,Suite 225 Beaumont,Texas 77701 (409) 880-3763 The Residential Emergency Repair Program is subject to availability of funds from the Texas Department of Housing&Community Affairs Disaster Program. If there are no funds available,the program will not be available. Applicant is subject to all guidelines changes. Residential Emergency Repair Program guidelines are subject to change without notice. TDHCA Disaster Program-Residential Emergency Repair Program to Effective October 17,2006 Page 5 of 5 TDHCA DISASTER PROGRAM CITY OF BEAUMONT RESIDENTIAL EMERGENCY REPAIR GRANT APPLICATION Please Print All Information Applicant: Social Security#: ; Spouse: Social Security#: Address: ZIP Code: Beaumont,Texas Home Work Phone#: Phone: Type of repairs emergency assistance requested for?(elgiMe repairs include removal of trees and storm debris,mechanical,plumbing, electrical,roofs,walls,floors,ceilings,foundations,doors,windows,cooling and hearing systems,building related deficiencies,or repairs that Involve hazards that would cause the unit to continue to deteriorate) Please provide the following information to be used by the City of Beaumont,Community Development Office and the U.S.Department of Housing and Urban Development for the purpose of determining eligibility for the Residential Emergency Repair Program. Please circle: Do you either own or in process of buying this home? YES or NO How many a live at this address? List the names and ages of all other persons living at the address in addition to applicant: INCOME OR NAMES: AGES: RELATIONSHIP: OTHER BENEFITS? Yes / No Yes / No Yes / No Yes / No Please circle: Please circle: Have you ever received a CDBG Have you ever received a CDBG rehabilitation emergency repair grant? YES or NO grant? YES or NO What is the name of your insurance company? Please circle: Have you applied for or received List type: Have you Cited an insurance claim for Sher assistance such as FEMA, these damages? YES or NO Red Cross,SBA,etc.,to assist with repairs? Applicant's Monthly $ Income: Source: Spouse's Monthly $ Income: Source: Other Monthly Income- $ Source. Other Monthly Income: $ Source: Checking Name of Balance: Account g: Bank: Savings Name of Balance: Account.: Bank: AUTHORIZATION AND CERTIFICATION IMPORTANTI READ BEFORE SIGNING: I certify that the above information is a true and correct statement of affairs to the best of my knowledge and belief. 1 also certify that 1 own and occupy the property as my sole and primary residence. I hereby authorize any business, organization, professional or designated individual to give full information and records about me and my affairs to the City of Beaumont, Housing Services Office. Applicant's signature below also acknowledges acceptance of the following program requirements and/or restrictions. ❑ Assistance is provided in the form of a grant and does not need to be paid back. No lien will be placed on the property. ❑ Mold Rernediation is not an eligible repair. ❑ Applicant owns,or is in the process of buying,the property and property is the applicant's principle residence.Applicant must provide a copy of the deed to the property. ❑ Physician's statement must be submitted with application as proof of disability. ❑ Submission and/or approval of an application does not guarantee that you will receive assistance.Funding is based solely upon the availability of funding from the U.S.Department of Housing and Urban Development and allocation of said funds by the Beaumont City Council to the Residential Emergency Repair Program. ❑ Intentionally providing false information in this application and supporting documents may result in a requirement to pay back any assistance provided and/or prosecution. ❑ A permit which can be obtained through the City of Beaumont's Building Codes Division is required prior to the contractor beginning any repairs. It is the homeowner's responsibility to ensure that the contractor obtains a permit. ❑ No repairs will be made in the areas of your home where it is detemdned that lead-based paint may be present and may be disturbed if the requested repairs are node. ❑ THE CONTRACTOR YOU SELECT MUST COME TO OUR OFFICE LOCATED AT CITY HALL,ROOM 225,PRIOR TO BEGINAING ANY WORK TO SIGN AN ASSURANCE STATEMENT THAT THE CITY'S STANDARD CONTRACTOR'S GUIDELINES WLLL BE ADHERED TO. NO PAYMENT WILL BE MADE FOR REPAIRS BY A CONTRACTOR WHO HAS NOT PROVIDED SUCH ASSURANCE STATEMENT. Signature of Applicant Date FOR OFFICE USE ONLY Reason Drdes: T1Inspected: of aids: Tracking: To Inspector: E1iMnicity While O#w Female Head: YES NO Ricorrne: Presumed Benaid Household: EldeAf Disabled Small Family Large Family program Year: Census Trod: Effechve1111/05-4130108 My DocumeroslDooslHUDMHOME Rehab%RehabWorms\EMEAppl.doc Is s OL City of Beaumont Department of Housing and Community Development Rental Rehabilitation Program Guidelines Community Development Block Grant (CDBG) Rental a abi itation Proqram Guidelines Mayor Guy Goodson Mayor Pro-Tem Nancy Beaulieu Councilwoman Lulu Smith Councilman Andrew Cokinos Councilman Audwini:Samuel Councilwoman Becky Ames Councilwoman Bobbie Patterson Kyle Hayes City Manager Adopted by the Beaumont City Couneil October_,2006 Department of Housing and Community Development 801 Maim,Suite 225 '010 W, 3827 Beaumont,Texas 77704 Phone,409.880.3763•Fax 409.880.3125 2 INTRODUCTION The City of Beaumont Rental Housing Rehabilitation Program is designed to assist low and moderate-income families in securing safe, sanitary and decent housing. This program's objective is to rehabilitate renter-occupied housing units by making needed repairs with the first priority as correcting code violations and eliminating lead-based paint hazards, when present. The Rental Rehabilitation Program is administered by the City of Beaunnont's Housing & Community Development Department and funded through a federal grant. These guidelines .' contain a detailed description of the program including policies and procedures. The purpose`` of these guidelines is to explain to potential clients and the citizens of Beaumont, the Rental,' Housing Rehabilitation Program and types of assistance available. For further information or clarification of the guidelines please contact: Housing & Community,Development Department 801 Main Street-.Suite 225 Beaumont, Texas 77761 409-880-3753;(Office) 409-880-3125(Fax) DESCRIPTION OF PROGRAM PROCEDURES I. ELIGIBILITY REQUIREMENTS: A. Applicantl(Owner) Requirements: Eligible property owner(s) (hereinafter referred to as Applicant)''must: 1.) Be a citizen of the United States or a legal resident alien. 2.) Maintain primary residence within the city limits of Beaumont. 3.) Own rental housing unit(s) located within an eligible service area 4.) Hold fee simple title to the property. 5,) Have an annual gross household income at or below 80 percent of the current median area income for Beaumont. See Table I.A below. 6.) Not have assets in excess of$300,000 (rental properties, personal property, cash on hand, stocks, bonds, etc.). 7.) Exhibit the financial ability to pay monthly property expenses including mortgage payments, taxes, insurance, utility bills, etc. 8.) Show proof of financial ability to fund the Applicant portion, if any, of the rehabilitation project. 3 9.) Provide proof that all property taxes assessed by the various taxing agencies in Jefferson County are paid in full on all properties owned by Applicant. 10.) Obtain a statement of income on all tenants residing in occupied units to be assisted. Income data must be verified; i.e., by contacting the tenant's employer, obtaining a copy of the tenant's latest income tax return and; obtaining copies of 3 months of paycheck stubs, etc. Annual income includes earnings (wages, pensions, etc.) spouse's earnings, interest from stocks, bonds, income from real estate, public assistance, etc. Also, include amounts of any monies regularly contributed to ant(s) by any other adult member of the family, child support payment$, SSI, etc. B. Tenant Requirements: The current and future tenants of a unit t6 be rehabilitated with funding from this program must be low or moderate- ncome. Low/ Moderate income is defined as 80 percent and below of the current Beaumont metropolitan area median income(AMi).`'See Table 1.13 below. Table LA—Applicant Income Limits (200%AMI) Table 1.B—Tenant Income Limits (80%AMI) Household Size Maximum Owner Household Maximum Tenant Income Size Income 1 56,700 1 $28,350 2 64,800 '. 2 $32,400 3 72;900 3 $36,450 4 81,Ofl0 4 $40,500 5 F7, 80 5 $43,750 6 93; 60 6 $47,000 7 100,440 7 $50,200 8 106,920 8 $53,450 C. Service Areae includes CDBG target areas (see 1-3 below) plus rental units in the city limits outside the target neighborhoods that meet special criteria (see 4 below): 1.)Target Area—All neighborhoods south and east of 1-10 and north and east of the Eastex Freeway. 2.) Any rental unit within the city limits of Beaumont a. when the unit is listed with the Beaumont Housing Authority Section 8 program and is currently housing income eligible renters; and b. Owner must sign agreement to continue listing the unit with Section 8 program for the 5-year lien period and give preference to renting unit to low/moderate-income families. 3.)Any rental unit in the city limits of Beaumont a. when the unit has been identified as having lead-based paint hazards by a certified lead inspector; and 4 b. when the unit is available for rental, or currently rented to low income household(s); and C. the owner agrees to market assisted housing unit(s) to, and give preference to low/moderate-income households with young children under the age of six for ten years. 4.) Any rental unit in the city limits of Beaumont a. when the unit has received damages resulting from a presidentially, declared disaster; and b. when the unit is available for rental, or currently,rented to low income household(s); and C. the owner agrees to market assisted housing unit(s)to, and give preference to low/moderate-income household(s)with young children` under the age of six for ten years. II. APPLICATION PROCESSING: Any property owner(s)wishing to apply for Rental Rehabilitation assistance must complete the application and all other required forms included in the proposal packet. All information on the completed applications will be verified by the Housing & Community Development staff. If any,information is found to have been intentionally falsified, the application will.be''rejected and the applicant will not be allowed to reapply. If it is determined the applicant is eligible for the program, a preliminary inspection will be made of the dwelling pnit(s). The dwelling unit(s) must meet the following standards to be considered eligible for rehabilitation: • The unit(s) must be located;within the recognized Service Area (see Section I.C)'. • The unit(s) must not be situated in the Designated Flood Plain Area. • Applicant may not occupy any assisted unit regardless of his or her income, with the exception of the circumstances set forth in Section VII-EE on page 14 of these Guidelines. • The unit(s)must be in an existing condition that would permit rehabilitation to bring the structure to meet current City of Beaumont building codes. • City-approved water supply, sanitary sewer and electrical system must service the unit(s). • The unit(s) must be two bedroom or larger. Preference will go to three bedroom and four bedroom units. • Owner must agree to have a Lead Paint Risk Assessment completed on all units to be assisted that were built before 1978 (a "hold harmless" agreement must be signed by owner before City staff can conduct the Lead Risk Assessment). PROJECT SELECTION Project selection will be based upon an analysis of the following factors: • Location of unit(s). • Number of bedrooms. • Acceptable credit rating and, as required, ability to obtain matching funds. • Number and extent of major health and safety violations to be corrected. • Tenant displacement(preference given to no displacement) • Economic feasibility 5 • Amount of subsidy required • Owner's Equity in property • Potential impact on neighborhood • Track record of landlord in low income tenant placement • Management and maintenance capabilities • Quality of rehabilitation plan • Accessibility or adaptability of unit(s) for handicapped tenants • Commitment by landlord to and/or likelihood of low income tenant placement • Assisted unit(s) must be available for rental, or currently rented to 6w income household(s). IV. CONTRACTOR SELECTION, MONITORING AND DEBARMENT: A. Contractors participating in the Rental Rehabilitation Program:will be selected by the eligible Applicant. The Applicant will be required to soikit at least two bids from contractors based on the preliminary work specifications provided by the City's Housing Inspector. The Applicant shall also be responsible for supplying all bidders with a Housing &Community Development-,Contractor's Packet that includes the contractor:;,information sheet, performance manual, and general specifications for workmanship, all insurance and bonding requirements, a contractor's eligibility certification form and a copy of the preliminary work write up. Bill proposals and all other4b,quired forms from the contractors should be submitted to Housing.& Community Development Department for review. B. Acceptable bid proposals must fall wit In a ten percent(10%) margin of the cost estimate developed by the Housing&Community Development Inspector. THE CITY OF BEAUMONT AND/OR THE APPLICANT RESERVE THE RIGHT TO:REJECT ANY AND ALL BIDS. Any contractor whose name appears on the most current HUD Debarred Contractor's List or whom the City has determined ineligible due to prior unresolved complaints will not be eligible to,participate in this program. C. Once the clotractor has been selected and approved, a contract agreement must be signed. Before the contractor can start work, the Applicant must issue a notice to proceed. D. The Applicant, the Housing &Community Development staff and the City of Beaumont building code inspectors will monitor the contractor's work. If the Applicant considers any work done by the contractor to be unsatisfactory or incomplete, the property owner should advise the contractor of the discrepancy and ask that it be corrected. E. Acceptance of Work 1.) Final Inspection - In order for the contractor to close out a rehabilitation job, a final inspection shall be made by the City of Beaumont building code inspector, the Housing &Community Development Inspector, and the property owner. If the final inspection results in no additional work or no specified corrections, the property owner shall sign the contractor's release form which states that all work has been completed to their (property owner's) satisfaction. The building code inspector shall sign a final inspection form to confirm the same. At this time, the contractor is 6 required to submit to the property owner copies of all warranties and releases of liens from subcontractors and suppliers. The Housing & Community Development staff will not authorize payment to the contractor until these documents are properly completed and submitted to the property owner and copies provided to the Housing &Community Development Department. 2.) Warranty of Work-As stated in the rehabilitation contract,,the contractor shall guarantee the work performed for a period of at least one year from;, the date of final acceptance. The owner is responsible for periodic review, of the work. F. Contractor Debarment 1.) A contractor will be declared ineligible to participate in projects. funded by the City of Beaumont's Housing Rehabilitation Program for one or more of the following cause except where work is delayed for reasons noted in Section Vll.l: 2.) Failure to complete a project within the prescribed contract period. 3.) Failure to complete warranty repairs within a reasonable time period. 4.) Failure to use licensed plumbing and electrical subcontractors. 5.) Failure to obtain propet insurance, Le both liability and worker's compensation. 6.) Failure to complete work in accordance with program specifications and/or accepted statlards of workmanship. 7.) Failure to pay,all sub, ontractors working on the project appropriately and/or submit affidavits of payment signed by all subcontractors. 8.) Failure to obtain proper permits for work in progress. G. Contractors will be notified of their proposed debarment and will be afforded the opportunity to comment or appeal the action. All appeals must be made in writing to the Housing & Community Development Department at least 15 days after the date of the notification letter. V. PAYMENT TO CONTRACTOR: A. The contractor shall receive payment for all completed contracts within 15 working days after final inspection and approval of all work. Ten percent (10%) of the total contract amount will be withheld for 30 days. At the end of this time, the property owner must approve release of contingency funds. B. An "All Bills Paid"affidavit or release of lien from all subcontractors and suppliers must be submitted for completed work before any payment can be processed. Rental rehabilitation partial payment minimum are as follows: projects over$40,000 at least 10 percent per draw, projects under 7 $40,000 15 percent per draw. VI. FINANCIAL ASSISTANCE OPTIONS: Two (2) levels of assistance are available based on owner income as follows: Owner income at 81 -200 percent of the area median income can receive up to -° 5,000 per unit(up to a maximum of 10 units) as a deferred loan, forgiven after 5 years. Owner income at or below 80 percent of the area median income can receive up to ; $10,000 per unit(up to a maximum of 10 units) as a defected loan,forgiven after 5 years. For either level of assistance, owner will be required to sign documents securing liens for a 5-year period. During lien period, owner must maintain property as rental property and lease to households at or below 80% of the area median income. (One-bedroom units are not eligible for assistance.) Applicants are required to sign a contract.A lien will be placed on the property for the 5-year period. Applicants are regtitred to Maintain the�property as rental property and lease to low and moderaito-incordihouseholds for the 5-year period. Owner funds, including,other forms of assistance such as insurance payments, FEMA and SBA assistance, must be expended prior to the City providing any Rental Rehabilitation Assistance.- Owner may not convert property to condominiums or any type of cooperative ownership for the 5-year duration of the lien. Owner may not discriminate against tenants receiving Federal, State or local rental as stance irir the $...gear duration of the lien. Thq,project must be maintained according to adopted City of Beaumont building codes in effect during the year in which the rehabilitation took place. Owner must affirmatively market vacant units for the 5-year duration of the lien using the"fair housing logo" below. EQUAL HOUSING OPPORTUNITY 8 All unit(s)will be made available and leased to persons whose income is at or below 80% of the area median income. If the Applicant violates any of these restrictions, the entire amount of the loan less 20%for each full year after completion of the rehabilitation of the units until the time of default, will be due and payable in full immediately after the owner is notified that the loan must be repaid. VII. PROGRAM GUIDELINES: A. Property owner agrees to comply with all HUD requirements to not discriminate upon the basis of race, ethnicity, religion, gender,disability status or family status in the sale, lease, rental, or use of occupancy of the subject property. B. Property owner agrees to not award any contract for rehabilitation work to be paid for in whole or in part with the proceeds of the grant, to any contractor who, at the time, is ineligible under the,provisions of any applicable regulations issued by the Secretary of Labor, United States Department of Labor, or the Department of Housing and Urban Development to receive an award of such contract. C. The tenant will continue to-occupy the premises during the rehabilitation. Any tenant required to move temporarily orpermanently as a result of the rehabilitation*, must be paid,,telocation/displacement costs as outlined in the City's Tenant's Pre-Notification Letter.`(Appendix IV to these Guidelines) *Any displacement of tenant(s) living in unit(s) at the time applicant decided to apply for funding who move because of their inability to pay increased rents, are considdmd displaced. Displacement costs are the responsibility of the property owner, D. Property owner.agrees that any existing utility services will be made available to the contractor Without charge as follows: electricity, gas, water and, when available and necessary, telephone (local calls only). E. Property Owner agrees that it is his/her sole responsibility to see that the contractor completes the work specified in his contract to the owner's satisfaction and that the City of Beaumont has no responsibility for any defects, faulty work or incomplete work by the contractor. The owner further agrees that the City has no liability for warranty of any of the workmanship or materials furnished by the contractor under the contract. The owner further agrees that latent or hidden conditions in the property which were not included in the original inspection and work write-up of the City are not the responsibility of the contractor nor of the City, but remain the responsibility of the owner. F. As part of the consideration for providing the funds to rehabilitate property as described herein, the property owner agrees to maintain and keep the property in good repair after the completion of the work to be performed by contractor, taking into consideration the ability of the owner to do so. The property owner also agrees to maintain the property up to City of Beaumont 9 Building Code standards that were in effect when the rehabilitation was completed. Owner agrees to do this during the term of the loan agreement and understands that if at anytime the property fails to meet these Code standards, the loan amount will become due immediately. G. The owner shall issue a written Notice to Proceed within thirty(30) days from the date of acceptance of the contractor's bid and proposal. If the contractor does not receive the Notice to Proceed within this 30-day period, the contractor has the option of withdrawing his/her bid and proposal. If the contractor chooses to do this, a written notice must be delivered to the owner with a copy to the City. The contractor shall not begin the work to be performed until receipt of written Notice to Proceed from,'the owner after which the contractor shall begin the work within ten (10' alendar days of the date of said Notice and shall complete said work within ninety(90)days or as agreed to in the Rehabilitation contract. H. The contractor shall not assign the contract without written consent of the owner and the City and/or its agent. I. The contractor shall not be responsible br any delays in the completion of work due to the following: 1.) Any acts of the government, including controls or restrictions upon or requisitioning of materials,equipment, tools or labor by reason of war, National Defense or any other national emergency. 2.) Any acts of the owner. 3.) Causes riot reasonably foreseeable by the parties to this contract at the time of the execution of the contract which are beyond the control and without the fault or negligence of the contractor; including but not limited to acts of God or of the public enemy; acts of another contractor l"the performance of some other contract with the owner, fires, floods;epidemics, quarantine restrictions, strikes, freight embargoes and weather of unusual severity such as hurricanes, tornadoes, etc. 4.) Any delay of the subcontractor occasioned by any of the causes specified in Subparagraphs (A) (B) and (C) above, provided that the contractor promptly(within 10 days) notifies the Owner in writing of the cause of the delay. If the facts show the delay to be properly excusable, the owner shall extend the contract time by a period commensurate with the period of excusable delay. J. The contractor shall not be held responsible for preexisting violations of law including but not restricted to zoning or building code regulations at the property listed in the contract. Before beginning work, the contractor shall examine the work write-up for compliance with the applicable ordinance and codes for the new or replaced work and shall immediately report any discrepancy to the owner. Where the requirements of the work write-up fail to comply with such applicable ordinances or codes for the new or replaced 10 work, the owner and the City will adjust the contract by change order to conform to such ordinances or code and make appropriate adjustment in the contract price unless waivers in writing covering the difference have been granted by the proper authority. No work may be performed on property located in the 100-year Flood Plain or where improperly zoned. K. The contractor shall comply with all non-discrimination clauses included in the contract; non-compliance may result in termination of the contract. L. Bids or proposals will be submitted at the bidder's risk and the City and/or the owner reserve the right to decline funding for projects riot in compliance with the guidelines. M. Subcontractors shall be bound by the terms,anti conditions 4f the contract, insofar as it applies to their work. This shall not relieve the general contractor from the full responsibility to the owner for the completion of all work to be executed under this agreement and he shall not be released from this responsibility by any sub-contractual agreement,he may snake with others. N. When adjacent property is affected or endangered by any work done under this contract, it shall be the responsibility of the contractor to take whatever steps are necessary for the protection of the adjat M property and to notify the owner thereof of such hazards: O. Repairs shall be made to all surfaces damaged by the contractor resulting from his/her work uilder this;contract at no additional cost to the owner. Where "repair of existing work" is called4or"`by the contract, the feature shall be placed in "equal to new condition"either by patching or replacement. All damaged;loose or rotted parts shall be removed and replaced and the finished,work shall match,adjacent work in design and dimension. P. After the final inspection and acceptance by the owner of all work under the contract including cleanup; the contractor shall submit to the owner for approval a requisition for payment. When the required warranties and other required documents°have been submitted and the contractor has executed the release of liens, the final payment will be made. The payment will include any amounts remaining due under the contract as adjusted in accordance with approved change orders. Payments will be made within 15 days of formal requisition for payment. Partial payments will be made at discretion of the owner with the consent of the City. Q. A Rehabilitation Loan may be made to cover the cost necessary to bring the dwelling into conformance with City of Beaumont Codes. The two categories of repairs listed below are to be included as priority items: 1.) Required Repairs: Code violations which create hazardous conditions in regard to safety or health will generally involve the basic heating, plumbing or electrical systems. 2.) Recommended Repairs: Code corrections or preventive maintenance efforts that should be undertaken to avoid more costly future action. 11 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 8.1(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: City: 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 inabil ity 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 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 party 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 parry'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- judgment motions; (iii) contempt proceedings; (iv) garnishment, levee, and debtor and third- parry 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 parry to complain of any act or failure to act of the other party or to declare the other parry 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 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 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 parry 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 Maieure. 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 parry 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 y 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 corner 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 ree as follows: g 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, 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 parry. 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 Indemnitv. (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.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 parry 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 party 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 parry'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 Inte ration. 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 Attomevs 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 parry 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 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 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 parry 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 EXIIIBIT 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 comer 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 comer 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.