City Council

PUBLIC NOTICE In accordance with the Open Meetings Act, Chapter 551 of the Government Code of Texas, notice is hereby given to all interested persons that the City Council of the City of Odessa, Texas will meet on Thursday, October 2, 2025, at 5:30 p.m. in the Council Chamber, 5th Floor, City Hall, 411 West 8th Street, Odessa, Texas for the following purposes: See attached agenda This Notice is being posted on the south door of City Hall and on the bulletin board of the first floor of City Hall, Odessa, Texas, this the _____ day of September, 2025 at _______ ___.m., said time being at least three business days prior to the time at which the subject meeting will be convened and called to order. City Council Meetings are available to all persons regardless of disability. Individuals with disabilities who require special assistance should contact the City Secretary's Office at 432/335-3276, or 411 West 8th Street, First Floor, Odessa, Texas, during normal business hours at least twenty-four hours (24) in advance of the meeting. Norma Aguilar, TRMC, CMC City Secretary  CITY COUNCIL Cal Hendrick Eddie Mitchell, District 1 Mayor Steven Thompson, District 2 Gilbert Vasquez, District 3 Greg Connell, District 4 David Vela Chris Hanie, District 5 City Manager Craig Stoker, At-Large City Council Meeting Agenda City Hall, 411 W. 8th St. City Council Chambers – Fifth Floor October 2, 2025 5:30 p.m. 1. Call to order Mayor Hendrick 2. Consider and take appropriate action regarding contract with Sports Med Aaron Smith Properties. 3. Adjourn. COURTESY RULES Thank you for your presence. The City Council appreciates your interest in Odessa City Government. PLEASE SILENCE OR TURN OFF ALL MOBILE DEVICES. If you wish to address the Council, obtain a speaker’s card just inside the Council Chambers, complete the information requested on the card and deliver to the City Secretary before the meeting or as soon as you can. Speakers will be heard as the individual item(s) in which they have registered an interest come before the Council. Your remarks will be to three minutes. Consideration will also be given to the number of people wanting to speak on a particular item. PLEASE GIVE YOUR NAME FOR THE RECORD. Delay or interruption of the proceedings will not be tolerated. ASSISTANCE Please call (432) 335-3276 if you need assistance with interpretation or translation for this meeting. Si usted necesita ayuda con la interpretación o traducción de cualquier material en este sitio o en una reunión pública de la Ciudad de Odessa por favor llame al (432) 335-3276. The City of Odessa wants to ensure that City Council Meetings are accessible to persons with disabilities. If any individual needs special assistance or accommodations in order to attend a City Council meeting, please contact the City Secretary’s Office at (432) 335-3276, in advance so accommodations can be made. DEVELOPMENT AND CONSTRUCTION AGREEMENT BY AND BETWEEN CITY OF ODESSA, A TEXAS MUNICIPALITY AS OWNER AND SPORTS MED PROPERTIES, LLC A NORTH CAROLINA LIMITED LIABILITY COMPANY AS DEVELOPER Dated: As of __________, 2025  DEVELOPMENT AND CONSTRUCTION AGREEMENT THIS DEVELOPMENT AND CONSTRUCTION AGREEMENT (this “Agreement”) made as of ____, 2025 by and between THE CITY OF ODESSA, a Texas municipality (“Owner”), and SPORTS MED PROPERTIES, LLC, a North Carolina limited liability company (“Developer”). RECITALS WHEREAS Owner has acquired title to certain interests in real property in the City of Odessa, Ector County, Texas, more particularly described on Exhibit A attached hereto and made a part hereof for all purposes (the “Property”); WHEREAS Owner desires to develop, own, and operate on the Property a Sports Complex development, consisting of approximately 156,818 square feet (the “Project”); WHEREAS Owner desires to retain Developer to develop and perform certain services in connection with the development and construction of the Project, all as set forth in this Agreement; and NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, Owner and Developer agree as follows: ARTICLE I APPOINTMENT 1.1 Appointment. Owner hereby appoints Developer, and Developer accepts such appointment, as the developer and construction manager for the Project, on the conditions and subject to the limitations set forth herein. 1.2 Independent Contractor. At all times, Developer shall be an independent contractor and not an agent of Owner. Developer has no authority to make commitments on behalf of, or to legally bind Owner, unless specifically provided for herein. Owner shall be financially responsible for payment of all fees and contract sums to Developer. Developer covenants, represents and warrants that it has all requisite licenses and other approvals required by law to carry out its duties hereunder and, to the extent that Developer is prevented by applicable law from obtaining all requisite licenses in its own name, then Developer covenants, warrants and represents that it will cause the services requiring such licenses to be performed through duly licensed agents, design professionals and contractors who have all requisite licenses and authority to carry out such services. Developer shall perform all work and services described herein as an independent contractor and not as an officer, agent, servant, or employee of Owner. Developer shall have exclusive control of, and the exclusive right to control the details of the services and work to be performed hereunder, and all persons performing the same. Developer shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors, and subcontractors. The Parties acknowledge and agree that the doctrine of respondeat superior shall not apply as between Owner and Developer, its officers, agents, employees, contractors, and subcontractors. Nothing in this Contract shall be construed as creating a partnership or joint enterprise between Owner and Developer. No person performing any of the work and services described hereunder by Developer shall be considered an officer, agent, servant, or employee of Owner. Further, it is specifically understood and agreed that nothing in this Contract is intended nor shall be construed as creating a “Community of Pecuniary Interest” or “An Equal Right of Control” which would give rise to vicarious liability. DEVELOPMENT AND CONSTRUCTION AGREEMENT - 1 Developer shall be an independent contractor under this Contract and shall assume all rights, obligations, and liabilities applicable to it as an independent contractor hereunder. Owner does not have the power to direct the order in which the work is done. Owner shall not have the right to control the means, methods, or details of Developer’s work. Developer shall assume exclusive responsibility for the work and is entirely free to do the work in its own way. 1.3 Surety Bonds. Developer agrees to make, execute and deliver to Owner good and sufficient surety bonds for the faithful performance of the terms and stipulations of the Contract and for the payment to all claimants for labor and/or materials furnished in the furtherance of the Project, such bonds being as provided and required in Chapter 2253, Texas Government Code, and such bonds shall be one-hundred percent (100%) of the total contract sum, and said surety shall be a surety company duly and legally authorized to do business in the State of Texas, and acceptable to Owner. All surety bonds must be approved by the City Attorney. Bonds shall be made on the forms furnished by or otherwise acceptable to Owner. Each bond shall be properly executed by both Developer and Surety Company. Bonds required by Owner shall comply with all relevant local, state, and federal statutes. Should any surety for the contracted project be determined unsatisfactory at any time during same, Developer shall immediately provide a new surety bond satisfactory to Owner. ARTICLE II SERVICES OF DEVELOPER 2.1 Developer Services. Developer shall initiate, coordinate, and administer all planning, design, and construction activities in connection with the development and construction of the Project, subject to the terms and conditions of this Agreement. Among other things, Developer shall coordinate and cause the Project to be developed and constructed in accordance with the Budget (hereinafter defined) for such work and within the time established by the Project Schedule (hereinafter defined) as updated and revised from time to time as provided herein. Developer shall update and revise the Budget and Project Schedule in consultation with Owner during the design development and construction contract process to, among other things, reflect design alternates selected by Owner, bids submitted by contractors, and schedule estimates provided by design professionals and contractors. Without limiting the generality of the foregoing, Developer shall perform its duties using commercially reasonable efforts in accordance with the professional care for those engaged in the development and construction of facilities of a similar type, magnitude, and significance as the Project (the “Performance Standard”). However, Developer shall have no liability for failing to achieve the objectives, nor for failing to perform the specific tasks set out in this Agreement, except to the extent that Developer has not used commercially reasonable efforts to do so or has acted with gross negligence or willful misconduct. Notwithstanding any other provision in this agreement: (i) in no event shall Developer’s liability arising under or in connection with this Agreement or the services provided by in excess of the Fee; and (ii) and in no event shall either Developer or Owner be liable for any punitive, exemplary, or consequential damages, arising under or in connection with this Agreement or the services provided, including, without limitation, damages for loss of profits, whether based upon contract, tort (including, without limitation, negligence, duty to warn, or strict liability), breach of warranty, or any other legal or equitable grounds. Owner further acknowledges and agrees that: (a) By agreeing to perform the Services, Developer shall not be deemed to be guaranteeing to Owner that the performance of the Services will satisfy or be in compliance with any of Owner’s or Owner’s affiliates’ obligations under any other agreement; (b) Developer shall not, in the performance of Developer’s obligations under this DEVELOPMENT AND CONSTRUCTION AGREEMENT - 2  Agreement, be liable to Owner, Owner’s affiliates, or any other party for any liabilities, obligations, claims, costs, or expenses arising out of any act or omission (whether negligent, tortious, or otherwise), except to Owner to the extent that such liabilities, obligations, claims, costs, or expenses arise out of or are caused by Developer’s gross negligence or willful misconduct; (c) Owner agrees and acknowledges no owner, officer, director, employee, or agent of Developer shall be personally liable for the performance or failure of performance of Developer’s obligations under this Agreement. Owner will look solely to Developer in that regard; and (d) Developer does not represent or guarantee that Developer’s provision of the Services will cause Client’s business to be profitable or to achieve any particular level of success or performance. 2.2 Subject to the Performance Standard, Developer shall cause the General Contractor (hereinafter defined) to complete the Project within the Budget for such work and within the Project Schedule, as both Project Schedule and Budget may be adjusted. Developer shall notify Owner if Developer recognizes that any work product of the Project Consultants (as defined herein) or General Contractor is materially at variance with applicable laws, codes, or regulations. Developer shall perform its duties hereunder: (a) in a good and workmanlike manner consistent with the best interests of the Owner and in accordance with the terms of this Agreement; (b) in compliance with all applicable laws, rules and regulations, including all federal, state and municipal laws, rules or regulations applicable to the Project; and (d) using its skill and judgment consistent with the interest and intent of the Owner. Without limiting the generality of the foregoing, Developer shall perform the following: (a) Phase I - Planning Phase. Upon the full execution and delivery of this Agreement and in consultation with the Owner, Developer shall use commercially reasonable efforts, skill, and judgment to accomplish all the following with respect to the Project (the “Planning Phase”): (i) negotiate and present to Owner for Owner's information agreements with land planners, architects, engineers, contractors and consultants and such other service providers as necessary or appropriate (“Project Consultants”), to provide design services for the Project (“Professional Services Agreements”). Professional Services Agreements will be consistent in format and will substantially comply with industry standard forms. All Professional Services Agreements will require Project Consultants to provide minimum insurance requirements, including, to the extent applicable, provisions requiring the Owner to be named as an additional insured; (ii) cause the preparation of plans, specifications and working drawings meeting the design intent expressed by the Owner and applicable laws, codes, and regulations (“Plans and Specifications”). Developer shall enter into appropriate agreements with the architect and the other Project Consultants in the development of the Plans and Specifications as necessary to construct the Project and shall submit all plans and specifications to Owner for review and approval from time to time as such documents are developed. All Plans and Specifications and working drawings shall be delivered to the Owner for review and approval prior to Developer beginning any construction activities on the Project. Developer shall provide the Owner with a schedule of the Plans and Specifications as they are developed and approved by the Owner. The schedule of Plans and Specifications shall be amended from time to time to reflect modifications made as the Project is developed; DEVELOPMENT AND CONSTRUCTION AGREEMENT - 3  (iii) commence the process to obtain all necessary private, governmental and quasi- governmental approvals and permits for the Project, and obtain or cause to be obtained all permits, licenses, certificates, approvals, authorizations and consents necessary to timely commence development and construction of the Project from all federal, state or local governmental authorities necessary or desirable for the development, construction and utilization of the Project (collectively, the “Permits”), including, without limitation, all zoning and site plan approvals, subdivision approvals, wetlands encroachment permits, building permits and certificates of compliance. To the extent permitted under Applicable Law (as herein defined), all Permits shall be obtained in the name of Owner, and Developer shall assign or cause to be assigned to Owner all Permits obtained in the name of Developer or any other party. Copies of all permits shall be promptly furnished to Owner. Developer shall keep Owner fully apprised of the status of processing of the Permits; and (iv) work to develop, refine, and update the estimate of construction costs as set forth in the Budget. Such refinement shall incorporate Owner's approved changes as they occur, and, when necessary, provide cost and performance evaluations of alternative materials and systems with assistance from the Project Consultants in an effort to provide the Owner with options to reduce the overall cost of the completed Project. (b) Phase II - Development Phase. The development phase of the Project (“Development Phase”) shall begin upon the earlier to occur of (i) execution by Owner of any preliminary term sheets for financing relating to the Project; (ii) execution of an agreement for construction of the Project (or an amendment to the Construction Contract, defined below) containing a guaranteed maximum price, or (iii) actual commencement of construction of the Project, and shall conclude upon completion of construction of the Project in accordance with the construction contract documents, including the Plans and Specifications. Without limiting the generality of the other terms and provisions of this Agreement, to the extent not previously accomplished, Developer will use its skill and judgment to accomplish all the following with respect to the Project: (i) negotiate and present to Owner for Owner's review, approval any additional Professional Services Agreements with Project Consultants, and any additional contracts with material suppliers, service providers, consultants, engineers, architects, and other contractors as are necessary or appropriate to complete the Project, all of which shall be in writing and at generally prevailing market rates, shall be consistent with the Plans and Specifications and the terms of this Agreement and shall provide for payments which shall not exceed the amounts set forth in the Budget. Developer shall promptly provide all negotiated iterations of any proposed agreements related to the development or construction of the Project for the Owner's review. All agreements will be commercially reasonable forms and will provide minimum insurance requirements including provisions requiring the Owner to be named as an additional insured for all appropriate and applicable policies of insurance. Owner may designate specific persons or entities from whom Developer shall obtain bids and may require that the General Contractor and/or designated major subcontractors provide payment and performance bonds or subguard insurance in form reasonably satisfactory to Owner provided that the costs for such requirements are included in the Budget or, if not, are added to the Budget. Owner shall make reasonable efforts to advise Developer of Owner’s bonding or subguard insurance requirements prior to the distribution by Developer of requests for proposals so that such requirements can reasonable be factored into any terms of the Construction Contract (as defined herein). Developer has selected Lee Lewis Construction, Inc. to provide pre- DEVELOPMENT AND CONSTRUCTION AGREEMENT - 4 construction services and anticipates that Lee Lewis Construction, Inc. will be the general contractor (the “General Contractor”) for the Project pursuant to a to-be-negotiated price construction contract (the “Construction Contract”); (ii) cause the Project to be developed and constructed in accordance with the development and construction budget set forth in Exhibit B to this Agreement (as amended from time to time with Owner's approval, the “Budget”), and the Project schedule as set forth in Exhibit C to this Agreement (as amended from time to time with Owner's approval, the “Project Schedule”). Developer shall provide administration of the Construction Contract and will be Owner's representative during construction through close-out of the Construction Contract and final payment to the General Contractor. Promptly after the necessary design work is completed, the required Permits and approvals obtained and the Construction Contract executed by Owner and the General Contractor, Developer shall cause the General Contractor to commence and diligently pursue construction of the Project in accordance with the Plans and Specifications and the terms of the Construction Contract. Developer shall regularly provide Owner with information in connection with updating the Budget and the Project Schedule as construction progresses, and the Budget and the Project Schedule may be modified from time to time based on such updates to the extent such modifications are approved, in advance, by Owner. Developer shall cause the General Contractor to comply with the Project Schedule and the Budget. Developer will promptly notify the Owner and recommend courses of action when requirements of a contract are not being satisfied pursuant to the terms thereof. The Developer will use all available means as permitted in the Construction Contract to cause General Contractor to accelerate the work, including utilization of overtime, additional work crews and alternate material suppliers, in the event the development and construction of the Project does not progress in accordance with the dates in the Project Schedule. If such acceleration is due to the actions of the Owner or someone for whom the Owner may be liable, then such costs of acceleration shall be at the cost of Owner. If such acceleration is due to the actions or inaction of the Developer or the General Contractor someone for whom they may be liable, then the Developer or the General Contractor, as the case may be, shall bear the costs of such acceleration in accordance with the terms of this Agreement or the Construction Contract. Unless otherwise approved in writing by Owner or allowed by this Agreement or the law, Developer shall incur no expenditures in connection with the development and construction of the Project that are not provided for in the Budget, either in total or in any one accounting category. All expenditures shall be charged to the proper account as specified in the Budget and, except for amounts allocated to contingency line items, no expenditure may be classified or reclassified for the purpose of avoiding an excess of the budgeted amount of an accounting category without the approval of the Owner; (iii) timely obtain or cause to be timely obtained the Permits for the use and occupancy of the Project. To the extent permitted under Applicable Law (as herein defined), all Permits shall be obtained in the name of Owner, and Developer shall assign or cause to be assigned to Owner all Permits obtained in the name of Developer or any other party. Copies of all permits shall be promptly furnished to Owner. Developer shall keep Owner fully apprised of the status of processing of the Permits; (iv) provide administration of the Construction Contract and serve as Owner's representative during construction through close-out of the Construction Contract and final payment to the General Contractor. Developer's responsibilities shall include supervising and DEVELOPMENT AND CONSTRUCTION AGREEMENT - 5 monitoring the work and activities of those engaged by Developer or by, or on behalf of, Owner (including the Project Consultants) for the development and construction of the Project, including having qualified individuals inspect and observe the work in progress as needed but in no event less than monthly (or more frequently if any material problems shall be encountered in connection with the Project) and promptly after any request by Owner. Developer shall routinely report to Owner in writing (in reasonable detail) the results of such inspections and observations and on the status of the Project (including the status of Permits, entitlements and inspections, consistency with the Project Schedule, compliance with the Budget or an explanation of any Budget excesses, and confirmation of expected costs to complete, together with additional reports providing details on the funds which have been expended to date on the construction of the Project); (v) coordinate, monitor and supervise performance by the Project Consultants and all other contractors, architects, engineers and developers (and all other persons or entities performing work or supplying materials with respect to the Project) of their respective contractual obligations, and Developer shall exercise reasonable efforts to ensure that all materials and labor furnished in connection therewith have been supplied or completed timely and in a good and workmanlike manner; (vi) promptly document and process proposed changes with respect to the Project in reasonable detail and review costs for proposed changes in the Budget and the Plans and Specifications. Developer shall submit any proposed amendment or updates to the Budget or Project Schedule to Owner for approval; (vii) during construction of the Project, subject to Owner's funding of all costs of compliance as provided in the approved Budget and the Construction Contract, take such action as may be necessary to cause the Project to comply with any law, statute, ordinance, resolutions, rule, regulation, order or determination of any governmental authority or any board of fire underwriters (or other body exercising similar functions), including, applicable competitive bidding and prevailing wage laws, all applicable zoning ordinances and building codes, flood disaster laws, health and environmental laws and regulations, and laws and regulations governing accessibility by the disabled (collectively, “Applicable Law”). Developer and Owner shall promptly furnish to the other, upon receipt, copies of any and all legal notices received by either party respecting any portion of the Project. Developer and Owner shall promptly notify the other of any suit, proceeding or other action threatened, commenced, or taken against the Project, or any part thereof, or against Owner or Developer, with respect to the Project or any part thereof; and (viii) cause to be prepared and assist in the negotiation of such contracts, easements, licenses and other agreements as are necessary or desirable for the provision of water, sewer, gas, electric, telephone, and other utilities (collectively, “Access and Utility Agreements”), in capacities adequate for the development and use of the Project for its intended purposes. The form and content of all Access and Utility Agreements shall be subject to the prior approval of Owner. All Access and Utility Agreements must be executed by Owner to be binding upon Owner and the Property, and Developer will have no authority under this Agreement to execute any Access and Utility Agreement. Notwithstanding the foregoing, no utility lines shall be installed or permitted to be installed by Developer unless shown on the Plans and Specifications. DEVELOPMENT AND CONSTRUCTION AGREEMENT - 6 2.3 Construction. (a) All contracts for the construction of the Project shall be negotiated by Developer utilizing commercially reasonable forms. (b) Developer shall be the sole party to all contracts for the construction of Project and Developer shall be solely responsible for payment of all contracts subject to and conditioned upon Owner’s fulfillment of its obligations to pay Developer under this Agreement. (c) Owner approves the General Contractor subject to review and approval of the terms and conditions of the Construction Contract. (d) During the construction of the Project, Developer shall provide contract and construction administration and will exercise general management of construction and in connection therewith shall perform the following duties: (i) provide direction to the General Contractor; (ii) appoint project management and support staff and provide on-site personnel to inspect the manner and progress of the construction, all of which personnel shall be subject to the reasonable approval of Owner; (iii) endeavor to guard Owner against non-compliance of the work of the General Contractor or any other contractors or subcontractors, including the appropriate inspection and testing of work by, if required by Owner, a representative of Owner or a third-party inspector or consultant designated by Owner; (iv) advise Owner of any material omissions, substitutions, defects, or deficiencies noted in the work of the General Contractor or any contractor, subcontractor, or materialman, and recommend to Owner action to be taken in respect thereof; (v) reject any work or materials of the General Contractor that do not conform to the appropriate contract documents, and recommend to Owner action to be taken in respect thereof; (vi) endeavor to cause the correction of defective or non-conforming work known or discovered by Developer; (vii) endeavor to cause the review and approval of shop drawings, samples, and other submissions of the General Contractor for conformance with the approved Plans and Specifications and compliance with the appropriate contract documents; (viii) assemble and review the application for payment from the General Contractor and invoices from other persons providing labor, material, or services for the Project and, after due consultation with the architect and all other Project Consultants, recommend to Owner the proper amount to be paid such payees; (ix) obtain from the General Contractor all required lien waivers and all other documentation as provided for in the Construction Contract; DEVELOPMENT AND CONSTRUCTION AGREEMENT - 7  (x) consult with the architect, the other Project Consultants and Owner if the General Contractor or any contractor or subcontractor requests interpretations of the meaning and intent of the Plans and Specifications and assist in the resolution of any questions which may arise; (xi) cause the preparation of such reports as may be required by any public agency on the progress of construction; (xii) during construction of the Project, maintain all books, records, accounts, and files for the Project as provided in Article VIII of this Agreement; (xiii) arrange for the delivery and storage, protection and security of Owner- purchased materials, systems and equipment which are a part of the Project, until such items are incorporated into the Project; (xiv) on application for final payment by the General Contractor, arrange for, and make, a final inspection of the General Contractor’s work and assemble and deliver to Owner any written guaranties, releases, bonds and waivers, instruction books, diagrams and charts required by the appropriate contract documents, and issue to Owner Developer's recommendation for final payment; (xv) coordinate the installation of the Access and Utility Agreements with the appropriate utility companies; (xvi) coordinate the construction work with any activities of Owner on or about the Project during the construction period; (xvii) hold regular meetings to be attended by representatives of architect, other Project Consultants, General Contractor, and other key parties (including any Owner's Consultant (as such term is defined below), and such special meetings as requested or required, and record and distribute minutes and decisions; (xviii) establish (or cause to be established by General Contractor subject to approval by the Owner) a periodic reporting system that covers major cost and schedule aspects of the Project, including: (A) Cost Status – a monthly cost status report for each major cost item in the Project, estimate, amount contracted, change orders and estimating cost to complete; (B) Payments Status – a monthly payments status report for each major cost item in the Project tracking payments made and amounts yet to be paid and project monthly cash requirements and update projections periodically; (C) Schedule Status – provide (or cause to be provided by General Contractor in a form and format subject to approval by the Owner) a monthly schedule status report comparing the then current state of construction to the Project Schedule; (D) Coordinate and establish agreements with government agencies and utilities; DEVELOPMENT AND CONSTRUCTION AGREEMENT - 8  (E) Establish and maintain a central file for all design, construction, and related contractual documents, including contracts, purchase order and change orders; (F) Provide copies of, and confer with the Owner regarding all notices, claims and pertinent correspondence related to the development of the Project or the work of the General Contractor and potential responses to the same and provide Owner with copies of warranties, guarantees, operating manuals, all design, construction and related contractual documents, including contracts, purchase orders, Permits, and change orders, and a set of as-built drawings of the Project at completion (electronic copies); (G) Make payment each month of expenditures authorized in the Budget, to the extent funds are provided therefor by Owner; (xix) Manage General Contractor's claim procedures in accordance with the terms of the Construction Contract, including the Development Fee; (xx) Perform such other additional development and Construction Contract management functions as are commercially appropriate to accomplish the orderly and proper development and construction of the Project substantially in accordance with the Budget and Project Schedule, as the Budget and Project Schedule may be amended from time to time with Owner's prior written consent given for the express purpose of amending the Budget and/or Project Schedule. (d) Change Orders. Developer and Owner acknowledge and mutually agree that Developer will carry a contingency line item in the Budget. If at any time there is a change in the Plans and Specifications that modifies the scope of work (“Change Order”), Developer shall cause the General Contractor to prepare a Change Order proposal stating the increase, if any, in the contract sum payable under the Construction Contract and the change, if any, in the contract time if the change is implemented. Developer shall supplement such change order proposal with proposed changes to the Budget and Project Schedule, if required, to reflect the proposed Change Order requested by Owner. Change Orders that can be paid for directly from the project contingency line item in the Budget will be paid directly by the Developer and shall not require Owner approval. In the event that the Owner directly requests a Change Order, any such Change Order must be properly authorized and paid directly by the Owner. 2.4 Warranties. During the term of the Agreement, Developer shall use commercially reasonable efforts to enforce all warranties and to cause all defects in the construction or execution of the Project to be corrected. 2.5 Compliance with Law. During construction of the Project, Developer shall use commercially reasonable efforts to take such action as may be necessary to cause the Project and the construction to comply with any law, statute, ordinance, resolutions, rule, regulation, order or determination of any governmental authority or any board of fire underwriters (or other body exercising similar functions), including, applicable competitive bidding and prevailing wage laws, or any recorded restrictive covenant or deed restriction affecting the Property or the Project, including, without limitation, all Applicable Law. Developer shall promptly furnish to Owner, upon receipt by Developer, copies of any and all legal notices received by Developer respecting any portion of the Project. Developer shall promptly, and so as not to prejudice the DEVELOPMENT AND CONSTRUCTION AGREEMENT - 9 rights of the Owner, notify Owner of any suit, proceeding or other action threatened, commenced, or taken against the Project, or any part thereof, or against Owner or Developer, with respect to the Project or any part thereof. 2.6 Owner's Right to Retain a Consultant. Owner shall have the right, at any time, to retain a consultant to review the Plans and Specifications and inspect the progress of construction (an “Owner's Consultant”), and the reasonable cost of any Owner's Consultant shall be included in Project costs. Owner shall give written notice to Developer of the name and address of any Owner's Consultant so retained and shall cause such Owner's Consultant to simultaneously provide to Developer copies of any written reports provided by Owner's Consultant to Owner. Developer shall make available to Owner and Owner's Consultant, if any, copies of all Plans and Specifications and all Change Orders and change directives, including field changes, and advise Owner and Owner's Consultant, if any, of all scheduled job site meetings. Upon Owner's request Developer shall provide Owner and Owner's Consultant, if any, with copies of project schedules, job minutes and other information reasonably required by Owner to evaluate the quality and progress of the work. Owner, its agents, employees, and contractors expressly reserve the right to enter the Project during the course of construction for the purpose of observing the Project and the progress and quality of the completed work. To avoid delays in construction in the Project, any such entry shall not unreasonably interfere with or delay the work to be performed by the General Contractor. ARTICLE III COMPENSATION OF DEVELOPER 3.1 Development Fee. Owner shall pay to Developer for its services under the Planning Phase and the Development Phase of this Agreement a fee (the “Development Fee”) in an amount equal to Two (2.00%) Percent of any and all costs incurred in connection with the performance of its obligations under this Agreement, including but not limited to all costs of development, design and construction as more fully set forth herein (determined net of the Development Fee.) The Development Fee shall be payable as follows: (a) Owner shall pay Developer twenty-five percent (25%) of the Development Fee within ten (10) days of the Effective Date. (b) Owner shall pay Developer sixty-five percent (65%) of the Development Fee monthly in monthly installments in an amount equal to the percentage of completion basis as reasonably determined by the Developer based upon the estimated total costs of the project the estimated months of Project construction, minus any previously paid Development Fee. (c) The remaining Development Fee, as adjusted and based upon total costs incurred as reconciled upon completion of the Project, shall be paid to Developer not later than thirty (30) days following the completion of the Development Phase of the Project. 3.2 Construction Management Fee. In addition to the Development Fee, Owner shall pay to Developer a fee (the “Construction Management Fee”) in an amount equal to Eight Hundred Fifty Thousand and 00/100 Dollars ($850,000.00) as payment for Developer’s management of construction activities provided in this Agreement. Owner shall pay to Developer the Construction Management Fee monthly in even payments throughout the Development phase of the Project as the term of such phase is set forth in the Project Schedule. O 3.3 Reimbursement of Reimbursable Costs. DEVELOPMENT AND CONSTRUCTION AGREEMENT - 10  (a) Owner shall reimburse to Developer those hard costs (the “Hard Costs”) and soft costs (the “Soft Costs”), each as set forth on the Budget attached as Exhibit B, which are actually incurred by Developer in the performance of its obligations under this Agreement (the “Reimbursable Costs”). Owner shall also reimburse Developer for all reasonable expenses incurred by Developer in the course of performing Developer’s duties under this Agreement, including, without limitation, copying, printing, delivery services, travel, etc.). Developer’s reimbursable expenses shall by paid by Owner within thirty days (30 days) of written request for such reimbursement. Written requests shall include a reasonably detailed expense report with copies of receipts (or other reasonable backup documentation). There shall be no markup with respect to such expense reimbursements. Expressly excluded from Reimbursable Costs shall be (i) Developer's overhead and general expenses, (ii) expenses of Developer's principal office and offices other than one Project office, including salaries and other compensation of Developer's personnel stationed at Developer's principal office or offices other than the Project office, and (iii) costs arising from the fault or gross negligence of Developer, (iv) costs that the Developer is otherwise prohibited from incurring pursuant to other provisions of this Agreement, and (v) the Development Fee. (b) Unless otherwise required by the Owner, Developer shall prepare and submit duplicate monthly applications for payment on account of Reimbursable Costs to Owner on or before the first (1st) day of each calendar month for the thirty (30) day period ending on the twenty-fifth (25th) day of the prior calendar month for which payment is requested. With each application for payment, Developer shall submit invoices, conditional lien waivers for the Developer, the General Contractor and all contractors and first tier subcontractors covering the period through which payment is being requested and final lien waivers for the Developer, the General Contractor and all contractors and first tier subcontractors covering all payment received through the immediately preceding payment period. The applications for payment shall show the costs actually incurred by Developer through the end of the period covered by the application for payment and for which the Developer has made or intends to make actual payment prior to the next application for payment. (c) Based upon the applications for payment submitted to Owner by Developer and upon satisfaction of all conditions to payment set forth in the documents Owner, shall make progress payments directly to Developer on account of Reimbursable Costs approved by Owner on a monthly basis after Owner's receipt of such application for payment by the tenth (10th) day of the calendar month following the period for which payment is requested. As a condition precedent to any payments owed to Developer, Developer shall (i) provide conditional and, when appropriate, final lien releases for itself, and the General Contractor and all first-tier subcontractors. With each payment to the General Contractor, Developer shall obtain a lien release from the General Contractor and all first-tier subcontractors. (d) No amount shall be paid to Developer for materials delivered but not yet incorporated into the Project unless Owner has received (i) bills of sale or other evidence of the passage of title of such materials to Owner, subject only to payment, (ii) evidence that the materials are insured under applicable casualty insurance policies, and (iii) evidence that such materials are securely stored. (e) Any amounts not paid by Owner to Developer within thirty (30) days of being due will result in all work provided by Developer to cease until such time that Owner has paid in full and brought all accounts current. DEVELOPMENT AND CONSTRUCTION AGREEMENT - 11  3.4 Reimbursement of Budget Savings. Pursuant to Section 2.2(b) of this Agreement, Owner and Developer shall mutually agree upon a Budget with a guaranteed maximum price for the Project, subject to Change Orders requested by Owner. If Developer satisfactorily completes the Project for an amount less than the guaranteed maximum price Budget, as adjusted by any Changes Orders requested by Owner, Developer shall be entitled to one hundred (100%) percent of those cost savings. 3.5 Payment. In the event a Change Order is requested, the Owner shall designate a representative Formatted: Not Strikethrough empowered to approve any Change Orders on behalf of the Owner. After all work is completed by Developer, including all Change Orders altering the original scope and amount of said contract are completed, and Owner has inspected and approved that the work is completed and in compliance with this Contract and all subsequent Change Orders, Owner shall thereafter issue payment to Developer in the amount of the Contract and all Change Orders. Owner shall be the final judge of when the work is completed by Company. Owner, in its sole discretion, shall determine if the work under the Contract and under any Change Orders has been done to Owner’s requirements. Owner may make periodic payments to Developer, however such periodic payments may only be made pursuant to this paragraph, and only after all work and all Change Orders are completed by Developer and approved by Owner. For contracts exceeding $25,000.00 and construction time exceeds ninety days, requests for progress payments may be made to the extent of the materials and labor completed at the end of each month. Upon approval by the Owner’s Representative the request and invoice shall be forwarded for payment less 5% retainage. The total of these payments shall not exceed 95% of the total contract amount. All Change Orders over $50,000.00 must be approved by the City Council and approved by the City Attorney. 3.6 Prompt Pay Act. The Parties agree that Texas Government Code Chapter 2251, Payment for Goods and Services does not waive the City’s governmental immunity. ARTICLE IV TERM AND TERMINATION 4.1 Term. The term of this Agreement shall expire on the date that is thirty (30) days following the issuance of the final certificate of occupancy for the Project, subject to earlier termination as set forth in Section 4.2. 4.2 Termination. (a) Upon the occurrence of any of the following events by either Owner or Developer (“Defaulting Party”), the non-Defaulting Party may terminate this Agreement and/or exercise any remedies available under this Agreement, at law, or in equity: (i) the Defaulting Party fails to make a payment when due to the non-Defaulting Party, and such failure continues for a period of ten (10) days after written notice of such failure from the non-Defaulting Party; and (ii) Except as set forth in the immediately preceding Subsection 3(a)(ix), if the=]e Defaulting Party defaults in the performance of or breaches any of its material covenants, agreements, or obligations under this Agreement, and such default or breach continues for thirty (30) days after written notice of such default or breach from the non-Defaulting Party; (b) Notwithstanding any other provision of this Agreement, the responsibility to pay costs DEVELOPMENT AND CONSTRUCTION AGREEMENT - 12  and fees (including, without limitation, the Development and reimbursements required by this Agreement) incurred, accrued, or earned prior to any expiration or earlier termination of this Agreement shall survive any expiration or earlier termination of this Agreement (including, without limitation, the term coming to an end); (c) Further, any breach or default under any guaranty of this Agreement shall be a default under this Agreement by Owner, in which case Developer may terminate this Agreement and/or exercise any remedies are available under this Agreement, at law, and/or in equity. (d) Termination upon Casualty. If the Project is substantially damaged or destroyed by a casualty and Owner elects not to restore the Project, this Agreement shall terminate with respect to the Project. In such event Developer shall be paid all Development Fees accrued through the date of casualty. (e) Developer shall have the right to terminate this Agreement upon the occurrence of any of the following events: (i) all or substantially all of the Project is destroyed by casualty and Owner elects not to commence to restore the Project; or (ii) the occurrence of an Owner Default, as hereinafter defined. (f) For purposes of this Agreement, an “Owner Default” shall consist of any one of the following: (i) Owner fails in any respect to materially perform any of its obligations or agreements contained in this Agreement and such failure continues for more than twenty (20) days after written notice from Developer; (ii) any representation or warranty made by the Owner in this Agreement or while performing its obligations herein is untrue in any material respect as of the date made; 4.3 Obligations Upon Termination. Upon a Developer Default, Developer shall not be entitled to receive any further payments under this Agreement until the Project has been completed by Owner or others engaged by Owner, at which time, if the accrued (prior to the time of the Developer Default) but unpaid Development Fee exceeds the sum of the reasonable and necessary expense of performing the Developer's duties hereunder in completing the Project, such excess amount shall be paid to Developer in full payment of the fees due Developer under Article II hereof. Upon the termination of this Agreement, Developer shall (i) account for all Reimbursable Costs for which Developer may be entitled to payment, and (ii) deliver to Owner all Plans and Specifications, agreements, guaranties and warranties from contractors and suppliers and other documents relating to the construction and development of the Project, all books, records, accounts and files for the Project, all operating and maintenance agreements relating to the Project, and all keys and Permits relating to the Project, together with assignments to Owner of all right, title and interest of Developer if any, in and to such items. ARTICLE V DEVELOPMENT AND CONSTRUCTION AGREEMENT - 13  INSURANCE 5.1 Developer's Liability Insurance. (a) Developer, shall maintain, with companies authorized to do business in the State of Texas and otherwise approved by Owner, insurance which will protect Owner and Developer from the claims set forth below which may arise out of or result from Developer's obligations under this Agreement: (i) claims under worker's or workmen's compensation, disability benefit and other similar employee benefit acts in statutorily prescribed limits; (ii) claims for damages because of bodily injury, occupational sickness or disease, or death including without limitation claims arising from explosion, collapse, and underground damage; (iii) claims from damages insured by personal injury liability coverage which are sustained by a person as a result of an offense directly or indirectly related to employment of such person by Developer, or by another person; (iv) claims for damages, other than to the Project itself, because of injury to or destruction of tangible property, including the loss of use resulting therefrom; (v) claims for damages because of bodily injury, death or property damage arising out of ownership, maintenance, or use of a motor vehicle; and (vi) claims involving contractual liability insurance applicable to Developer's obligations under Article II. (b) Developer shall cause Owner to be named as insureds and shall cause Developer to be named as an additional insured under such liability insurance policies. Such liability policies shall be written with limits of liability acceptable to Owner. All such insurance shall be maintained without interruption through the termination of this Agreement. Developer shall deliver certificates of insurance evidencing the foregoing coverages to Owner prior to commencing the construction of the Project. These certificates shall provide that coverages afforded under the policies will not be canceled or materially modified or allowed to expire until at least thirty (30) days' prior written notice has been given to Owner. (c) Property Insurance. Developer, or Contractor at Developer’s discretion, shall obtain and maintain a builder’s risk policy of insurance upon the Project to the full insurable value thereof on a replacement cost basis, subject to such deductibles as Owner may approve. The policy shall name the Owner as additional insured. 5.2 Contractor's Insurance. Developer shall receive certificates of insurance and renewal certificates from the General Contractor and all other contractors and subcontractors, as Owners shall see fit. Developer shall forward copies thereof to Owner and advise Owner whether the contractors have obtained such coverages as they are obligated to maintain under their contract documents with Owner. Owner and Developer shall be named as additional insureds on such certificates. Developer shall advise Owner with respect to whether additional insurance coverages shall be obtained. DEVELOPMENT AND CONSTRUCTION AGREEMENT - 14  5.3 Waiver of Subrogation. Owner and Developer waive all rights against each other and their agents and employees for damages caused by fire or other perils to the Project to the extent of insurance proceeds actually received in connection with such casualty, together with the amount of any deductible payments to be made with respect to such policies. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly and whether or not the person or entity had an insurable interest in the property damaged. ARTICLE VI REPRESENTATIONS AND WARRANTIES OF DEVELOPER 6.1 Developer hereby represents, warrants and covenants to Owner that: (a) the execution, delivery and performance of this Agreement has been duly and validly authorized by all necessary action, corporate or otherwise, on the part of Developer; (b) the execution, delivery and performance of this Agreement will not result in a breach or violation of or a default under Developer's articles of incorporation, or under any loan or other agreement or instrument by which Developer is bound, or of any law, order, or regulation; (c) Developer is a limited liability company duly organized, validly existing and in good standing under the laws of the State of North Carolina and is authorized to conduct business in Texas; (d) There are no claims, actions, litigation, judgments, rulings, suits or proceedings actual, pending, or, to the best of Developer's knowledge, threatened, including, without limitation, bankruptcy or other insolvency proceedings, by or against Developer which, if determined adversely to Developer, would adversely affect Developer's ability to perform its obligations hereunder; and (e) All Permits necessary to commence construction of the Project will be obtained prior to commencement of work on any of the Project and will be kept in full force and effect until completion of the Project. (f) Developer shall at all times exercise reasonable precaution for the safety of employees and others on or near the work and shall comply with all applicable provisions of federal, state and municipal laws. All machinery and equipment and other physical hazards shall be guarded in accordance with federal, state or municipal laws or regulations. ARTICLE VII BOOKS AND RECORDS 7.1 Books and Records. Developer will establish and maintain at its office designated in the notice provision of this Agreement, or at such other location acceptable to Owner, a complete set of books, accounts, records, plans, and files (including the Plans and Specifications) for the Project. Owner, and its accountants and other representatives, shall have the right to examine, review, and audit all such books and records of Developer upon request. DEVELOPMENT AND CONSTRUCTION AGREEMENT - 15  7.2 Records Retention and Production of Information. To the extent that this Contract is a contract described by Texas Government Code Section 552.371, Developer shall: (i) preserve all contracting information related to this Contract as provided by the records retention requirements applicable to Owner for the duration of this Contract; (ii) promptly provide to Owner any contracting information related to the Contract that is in the custody or possession of Developer on request of Owner; and (iii) on completion of the Contract, either: (a) provide at no cost to Owner all contracting information related to the Contract that is in the custody or possession of Developer; or (b) preserve the contracting information related to the Contract as provided by the records retention requirements applicable to Owner. 7.3 Reports. Developer shall communicate with Owner to keep Owner informed of the activities and progress of the Project. Developer shall inform Owner of any material delays, errors, or failure related to any party's performance on the Project. Developer shall immediately inform Owner if there is an uncorrected defect in the work or breach of a provision of the Construction Contract for which a stop work order may be issued. Developer shall provide 7.4 Owner with timely notice of all regularly scheduled construction meetings that Developer holds with General Contractor and Owner shall have the right to attend such meetings (in person or by conference call) and the right to access the books and records of Developer to conduct periodic reviews of the Project. With each application for payment submitted by Developer or on a more frequent basis, as reasonably requested by the Owner, Developer shall deliver or cause to be delivered to Owner a written update which shall include, without limitation, a status report of the construction of the Project identifying any events, or anticipated events, impacting the Project's Project Budget or Project Schedule, photographs of the Project showing the progress of the work, a report of the number of days by which the construction of the Project is ahead of or behind the Project Schedule, the actual versus estimated percentage completion for each activity and the total Project, any change in the critical path for the Project, and such other information as Owner may reasonably request. 7.5 Reports Required by Law. Developer shall execute and file, punctually when due, all forms, reports and returns relating to the Project required by Applicable Law, including, without limitation, reports relating to the employment of personnel, but not including federal, state, or local tax returns of Owner. ARTICLE VIII MISCELLANEOUS 8.1 Entire Agreement. The Agreement contains the entire understanding of the parties with respect to the subject matter hereof, supersedes all prior or other negotiations, representations, understandings, and agreements of, by or among the parties, express or implied, oral, or written which are fully merged herein. The express terms of this Agreement control and supersede any course of performance and/or customary practice inconsistent with any such terms. Any agreement hereafter made shall be ineffective to change, modify, discharge, or effect an abandonment of this Agreement unless such agreement is in writing and signed by the party against whom enforcement of such change, modification, discharge, or abandonment is sought. This Agreement shall be governed by and construed under the laws of the State of North Carolina. 8.2 Assignability. Subject to the restrictions below, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement shall be deemed personal to Developer and as such may not be voluntarily or involuntarily assigned by it without the approval of Owner. DEVELOPMENT AND CONSTRUCTION AGREEMENT - 16  8.3 Headings and Titles. The article headings and titles provide context and can help describe and inform the meaning of the sections they label, and courts should construe contractual provisions in a manner that is consistent with the labels the Parties have given them. 8.4 Notices. (a) All notices, demands, request or other communications from each party to the other required or permitted under the term of this Agreement shall be in writing and, unless and until otherwise specified in a written notice by the party to whom notice is intended to be given, shall be sent to the parties at the following respective addresses: Developer: Sports Med Properties, LLC Attn: Randy Russell 6400 Bannington Rd. Charlotte, North Carolina 28226 With copies to: Griffith Davison, PC Attn: Kimber Davison 13737 Noel Rd., Suite 1200 Dallas, Texas 75240 (972) 392-8900 kdavison@griffithdavison.com Owner: ______________ ______________ ______________ ______________ ______________ With copies to: _______________ _______________ _______________ _______________ _______________ DEVELOPMENT AND CONSTRUCTION AGREEMENT - 17 Notices may be given on behalf of any party by its legal counsel. (b) Each such notice, demand, request or other communication shall be deemed to have been properly given for all purposes if (i) delivered against a written receipt of delivery, (ii) mailed by registered or certified mail of the United States Postal Services, return receipt requested, postage prepaid, or (iii) delivered to a nationally recognized overnight courier service for next business day delivery, to its addressee at such party's address as set forth above or (iv) delivered via electronic mail, telecopier or facsimile transmission to the facsimile number listed above, provided, however, that if such communication is given via electronic mail, telecopier or facsimile transmission, an original counterpart of such communication shall concurrently be sent in either the manner specified in clause (i) or (iii) above. (c) Each such notice, demand or request shall be deemed to have been given upon the earlier of (i) actual receipt or refusal by the addressee, (ii) deposit thereof at any main or branch United States post office if sent in accordance with Section 9.3(b)(ii) above, or deposit thereof with the courier if sent pursuant to Section 9.3(b)(iii) above. 8.4 Notice of Alleged Breach; Statutory Prerequisites. As a condition precedent to filing suit for alleged damages incurred by an alleged breach of an express or implied provision of this Contract, Developer or its legal representative, shall give the City Manager, or any other reasonable official of Owner, written notice (consisting of one (1) original and seven (7) copies of such notice attached to a copy of this Contract) of such duly-verified damages, within one hundred twenty (120) days after the same has been sustained. The discovery rule does not apply to the giving of this notice. The notice shall include when, where, and how the damages occurred, the apparent extent thereof, the amount of damages sustained, the amount for which Developer will settle, the physical and mailing addresses of Developer at the time and date the claim was presented, the physical and mailing addresses of Developer for the six (6) months immediately preceding the occurrence of such damages, and the names and addresses of the witnesses upon whom Developer relies to establish its claim. Company’s failure to so notify the City Manager within the time and manner provided herein shall exonerate, excuse and except City from any liability whatsoever. City is under no obligation to provide notice to Developer that Developer’s notice is insufficient. City reserves the right to request additional information regarding the claim. Said additional information shall be supplied within thirty (30) days after Developer’s receipt of notice. The statutory prerequisites outlined herein constitute jurisdictional requirements pursuant to Texas Local Government Code Section 271.154 and Texas Government Code Section 311.034. Notwithstanding any contrary provision contained herein, Developer’s failure to comply with the requirements of this section shall perpetually bar Developer’s claim for damages under Texas Local Government Code Chapter 271 and Texas Government Code Section 311.034, regardless of whether City has actual or constructive notice or knowledge of said claim or alleged damages. Developer agrees that the requirements of this entire Contract are reasonable. The provisions and obligations of this section shall survive the termination of this Contract. 8.4 Non-Exclusive Remedies. Except as otherwise provided herein, no remedy herein conferred or reserved is intended to be exclusive of any other available remedy or remedies, and each and every such remedy shall be cumulative and shall be in addition to every such remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. It is expressly agreed that the remedy at law for breach DEVELOPMENT AND CONSTRUCTION AGREEMENT - 18 by any of the parties for its obligations hereunder is inadequate in view of the complexities and uncertainties in measuring the actual damages which would be sustained by reason of either party's failure to comply fully with each of such obligations. Accordingly, the obligations of each party hereunder are expressly made enforceable by specific performance, except as otherwise specifically provided herein. 8.5 No Waiver. Neither the failure nor any delay on the part of either party to this Agreement to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of any such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the parties asserting such waiver. 8.6 No Third-Party Beneficiary Rights. This Agreement is made solely and specifically between and for the benefit of the parties hereto, and their respective successors and permitted assigns, subject to the express provisions hereof relating to successors and permitted assigns, and no other person, individual, corporation or entity, whatsoever, shall have any rights, interests or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third- party beneficiary or otherwise. 8.7 Time. Time is of the essence of this Agreement. In computing the number of days for purposes of this Agreement, all days shall be counted, including Saturdays, Sundays and holidays; provided, however, that if the final day of any time period provided in this Agreement shall end on a Saturday, Sunday or holiday, then the final day shall extend to 5:00 p.m. on the next full business day. For purposes of this Section 9.7, the term “holiday” shall mean a day other than a Saturday or Sunday on which banks in the State on which banks in the State in which the Property is located are or may elect to be closed. 8.8 Interpretation. No provision of this Agreement is to be interpreted for or against either party because that party or that party's legal representative or counsel drafted such provision. 8.9 Additional Acts. In connection with this Agreement and the transactions contemplated by this Agreement, Owner and Developer each agree to execute and deliver such additional documents and instruments and take all such necessary action and perform such additional acts as may be necessary or appropriate to effectuate; carry out and perform all of the terms, provisions and conditions of this Agreement. 8.10 Provisions Separable. The provisions of this Agreement are independent of and separable from each other, and no provisions shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other provision may be invalid or unenforceable in whole or in part. 8.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute the same instrument. This Agreement shall be binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of all the parties reflected on this Agreement as the signatories. 8.12 Captions. The captions in this Agreement are inserted for convenience of reference; they form no part of this Agreement and shall not affect is interpretation. 8.13 Gender. Whenever the context shall require, all words herein in any gender shall be deemed to include the masculine, feminine, or neuter gender, and all singular words shall include the plural, and all plural DEVELOPMENT AND CONSTRUCTION AGREEMENT - 19 words shall include the singular. 8.14 WAIVER OF TRIAL BY JURY. OWNER AND DEVELOPER WAIVE ANY RIGHT TO A TRIAL BY JURY FOR ANY LITIGATION ARISING WITH RESPECT TO THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT. 8.15 Governing Law. This Agreement shall be governed by the laws of the State of Texas. North Carolina. 8.16 Exclusive Venue. The parties consent that venue of any action under this Agreement shall be exclusively in the state courts of Dallas Midland County, Texas, it being understood that this Agreement is performable, at least in part, in such county. 8.17 Attorney's Fees. In the event suit is filed to enforce any provisions of this Agreement or to recover damages hereunder, the prevailing party, as may be determined by a competent finder of fact, shall be entitled to recover all reasonable attorneys' fees and costs, which both parties agree may include reasonable attorneys’ fees and costs related to work performed by in-house legal counsel.. 8.18 Confidentiality. Subject to the provision herein, Developer shall maintain the confidentiality of all financial and other operational information relating to the Project and/or the business interests of Owner and any affiliates of Owner, except to the extent that (i) disclosure is required by law, (ii) disclosure is appropriate to any filing or application in connection with a license or franchise, or (iii) such confidential information needs to be provided to any other consultant or professional being engaged by or on behalf of Owner; all of which are subject to Owner's approval. The provisions of this paragraph will survive the termination of this Agreement. 8.19 Public Information. To the extent that this Contract is a contract described by Texas Government Code Section 552.371, Developer agrees as follows in accordance with Texas Government Code Section 552.372(b): The requirements of Texas Government Code Chapter 552 Subchapter J may apply to this Contract, and Developer agrees that the Contract can be terminated if Developer knowingly or intentionally fails to comply with a requirement of that subchapter. 8.20 Limitation of Liability. Notwithstanding any other provision of this Agreement or any rights which a party may otherwise have at law, in equity or by statute, whether based on contract or some other claim, the general or limited partners, members, employees, agents or affiliates of the Developer and Owner will not in any manner be personally or individually liable for the obligations of the Developer or Owner hereunder. 8.21 Cooperation. Developer agrees to cooperate with and assist Owner in connection with any demand, claim, action, or controversy involving the General Contractor, any subcontractor or any other person or party providing any service or material with respect to the Project. 8.22 Governmental Immunity. By executing this Contract Owner is not waiving its right of governmental immunity. Owner is retaining its immunity from suit. City is not granting consent to be sued by legislative resolution or action. THERE IS NO WAIVER OF GOVERNMENTAL IMMUNITY. 8.23 Funding. In the event no funds or insufficient funds are appropriated and budgeted or are otherwise unavailable in any fiscal period for contract payments due under this Contract, then this Contract DEVELOPMENT AND CONSTRUCTION AGREEMENT - 20 shall terminate on the last day of the fiscal period for which full appropriations were made, without penalty or expense to Owner of any kind whatsoever. Owner recognizes and acknowledges that Developer entered into this Agreement in reliance of the assurances made by Owner that funding would be available for the Project. 8.24 WAIVER OF ATTORNEY FEES. BY EXECUTING THIS CONTRACT, DEVELOPER AGREES TO WAIVE AND DOES HEREBY KNOWINGLY, CONCLUSIVELY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY CLAIM IT HAS OR MAY HAVE IN THE FUTURE AGAINST OWNER REGARDING THE AWARD OF ATTORNEY’S FEES, WHICH ARE IN ANY WAY RELATED TO THIS CONTRACT, OR THE CONSTRUCTION, INTERPRETATION, OR BREACH OF THIS CONTRACT. DEVELOPER SPECIFICALLY AGREES THAT IF DEVELOPER BRINGS OR COMMENCES ANY LEGAL ACTION OR PROCEEDING RELATED TO THIS CONTRACT, THE CONSTRUCTION, INTERPRETATION, VALIDITY, OR BREACH OF THIS CONTRACT, INCLUDING, BUT NOT LIMITED TO, ANY ACTION PURSUANT TO THE PROVISIONS OF THE TEXAS UNIFORM DECLARATORY JUDGMENTS ACT (TEXAS CIVIL PRACTICE AND REMEDIES CODE SECTION 37.001, ET SEQ., AS AMENDED), OR TEXAS LOCAL GOVERNMENT CODE CHAPTER 271, DEVELOPER AGREES TO ABANDON, WAIVE AND RELINQUISH ANY AND ALL RIGHTS TO THE RECOVERY OF ATTORNEY’S FEES TO WHICH DEVELOPER MIGHT OTHERWISE BE ENTITLED. DEVELOPER AGREES THAT THIS IS A VOLUNTARY AND INTENTIONAL RELINQUISHMENT AND ABANDONMENT OF A PRESENTLY EXISTING KNOWN RIGHT. DEVELOPER ACKNOWLEDGES THAT IT UNDERSTANDS ALL TERMS AND CONDITIONS OF THIS CONTRACT. DEVELOPER FURTHER ACKNOWLEDGES AND AGREES THAT THERE WAS AND IS NO DISPARITY OF BARGAINING POWER BETWEEN OWNER AND DEVELOPER. THIS SECTION SHALL NOT BE CONSTRUED OR INTERPRETED AS A WAIVER OF GOVERNMENTAL IMMUNITY AND SHALL SURVIVE THE TERMINATION OF THIS CONTRACT. DEVELOPER IS RELYING ON ITS OWN JUDGMENT AND HAD THE OPPORTUNITY TO DISCUSS THIS CONTRACT WITH COMPETENT LEGAL COUNSEL PRIOR TO ITS EXECUTION. THE OBLIGATIONS AND PROVISIONS IN THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS CONTRACT. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] DEVELOPMENT AND CONSTRUCTION AGREEMENT - 21  IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written. OWNER: The City of Odessa, a Texas municipality Signature: _______________________________ Printed Name: ____________________________ Title: ____________________________________ DEVELOPER: SPORTS MED PROPERTIES, LLC, a North Carolina limited liability company Signature: _______________________________ Printed Name: ____________________________ Title: ____________________________________ DEVELOPMENT AND CONSTRUCTION AGREEMENT – Signature Page  LIST OF EXHIBITS Exhibit A - Description of Project Exhibit B - Project Budget Exhibit C - Project Schedule DEVELOPMENT AND CONSTRUCTION AGREEMENT - List of Exhibits  EXHIBIT A DESCRIPTION OF PROJECT DEVELOPMENT AND CONSTRUCTION AGREEMENT – Exhibit A  EXHIBIT B PROJECT BUDGET b DEVELOPMENT AND CONSTRUCTION AGREEMENT – Exhibit B  EXHIBIT C PROJECT SCHEDULE DEVELOPMENT AND CONSTRUCTION AGREEMENT – Exhibit C