HomeMy WebLinkAboutPACKET MARCH 30 2004 City of Beaumont
REGULAR MEETING OII-0 TII-IIE CITY COUNCIL '
COUNCIL CHAMBERS MARCH 30, 2004 1.30 P.M.
AGENDA
CALL TO ORDER
Invocation Pledge Roll Call
Presentations and Recognition
Public Comment: Persons may spear on scheduled agenda items 1-4/Consent
Agenda
Consent Agenda
GENERAL BUSINESS
1. Consider approving an agreement for architectural services for the design of a new
club house at the Henry]H[omberg Municipal Golf Course
2. Consider authorizing expenditures to reimburse ExxonMobil Pipeline Company for
the adjustments of their facilities on]FM364/Major Drive
3. Consider approving the purchase of a tractor for use in the Parks Division
4. Consider amending Ordinance No. 03-082 relating to the structure located at 1380
Ewing
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:
Claim of Mary Guillory
Claim of Stephen Thompson
Claim of Toshiba Patterson
Claim of Douglas Manning, individually and as parent of
Brittany Manning, a minor
Claim of Donna Manning
Persons with disabilities who plan to attend this meeting and who may need auxiliary aids
or ser=vices are reouested to contact Pat Buehrle at 880-3725 a day nrior to the meeting.
1
March 30,2004
Consider approving an agreement for architectural services for the design of a new club house at
the Henry Homberg Municipal Golf Course
C *ty of Beaumont
Council Agenda Item
TO: City Council
FROM: Kyle Hayes, City Manager
PREPARED BY: Kirby Richard, Central Services Director
MEETING DATE: March 30, 2004
AGENDA MEMO DATE: March 23, 2004
REQUESTED ACTION: Council authorize the City Manager to execute an agreement for
architectural services.
RECOMMENDATION
Administration recommends authorizing the City Manager to execute an agreement with Architectural
Alliance, Inc. for the design and construction management of the Henry Homberg Municipal Golf
Course club house.
BACKGROUND
During the preparation of the FY 2004 Capital Improvement Program, Council approved the
construction of a new club house facility at the City's municipal golf course. The original club house
was constructed in the late 1930's,with an extension being added inl950. It is now in disrepair and
in need of major renovation. Due to its age,repairs and major renovations are no longer feasible and
the building and parking lot must be replaced.
Requests for Proposals(RFP)were solicited for architectural services to assist the City in designing
a new facility. Proposals were received from the seven firms listed below:
Architectural Alliance, Inc. Long Architects, Inc.
Eagle - Pro Engineering, Inc. Mark Magnuson&Associates
LaBiche Architectural Group, Inc. Sigma Engineers, Inc.
Leap Engineering
Prior to receipt of the proposals, a committee was formed to evaluate the RFP's and recommend a
firm to provide the desired services. Another use of this committee will be to assist in the project's
Henry Homberg Municipal Golf Course Club House
March 23, 2004
Page 2
design phase by making suggestions for the new facility's layout. The committee consists of the
following individuals:
Lou Cappi Recreation Superintendent
Andy Hebert Henry Homberg Municipal Golf Course Lessee/Professional
Lewis Hiltpold Parks Superintendent
George Jackson Parks and Recreation Advisory Committee Appointee
John Morgan Building Services Superintendent
After reviewing the proposals and interviewing three firms, the committee selected Architectural
Alliance, Inc. as the firm whose services are most meritorious to the City.
An agreement has been negotiated with Architectural Alliance to provide design and construction
management services, and is attached for review. As provided in the agreement, a fee of seven and
one half percent(7.5%)of construction costs,not to exceed $45,000,will be charged for providing
architectural services.
Estimated cost of the project, including architect and engineering fees,is$650,000. Project design
will commence upon the execution of the proposed agreement. Design is expected to be complete
within three(3)months and construction to take another nine(9)to twelve(12)months. Ifthere are
no significant delays in the project, the new facility will be ready for occupancy prior to next
summer's play. It is anticipated that play at the course will not be adversely affected by the
construction of a new club house facility.
BUDGETARY IMPACT
Architectural fees are 7.5%of construction costs,not to exceed$45,000. Funds are available in the
General Improvement Fund.
PREVIOUS ACTION
None.
SUBSEQUENT ACTION
None.
RECOMMENDED BY
City Manager and Central Services Director.
AGREEMENT FOR ARCHITECTURAL SERVICES
This Agreement made as ofthe day of ,2004 between the City of Beaumont,
Texas, hereinafter referred to as "Owner," and Architectural Alliance Inc., hereinafter referred to as
"Architect" for the following Project: Henry Homberg Municipal Golf Course Club House
Facility, City of Beaumont, Texas, hereinafter referred to as"Project." The Owner and Architect
agree as set forth below.
ARTICLE 1
ARCHITECT'S RESPONSIBILITIES
1.1 ARCHITECT'S SERVICES
1.1.1 The Architect's services consist ofthose services performed by the Architect,
Architect's employees and Architect's consultants as enumerated in Articles
2 and 3 of this Agreement and any other services included in Article 11.
1.1.2 The Architect's services shall be performed as expeditiously as is consistent
with a high degree of professional skill, care, and diligence practiced by
Architects of Jefferson County and the orderly progress of the Work. The
term"high degree of professional skill" shall require more than mere average
professional work, but shall not be construed herein to require perfection.
Upon request of the Owner, the Architect shall submit for the Owner's
approval a schedule for the performance of the Architect's services which may
be adjusted as the Project proceeds, and shall include allowances for periods
of time required for the Owner's review and for approval of submissions by
authorities having jurisdiction over the Project. Time limits established by this
schedule and approved by the Owner shall not, except for reasonable cause,
be exceeded by the Architect or Owner,and any adjustments to this schedule
shall be mutually acceptable to both parties.
1.1.3 The services covered by this Agreement are subject to the time limitations
contained in Subparagraph 10.4.1.
-1-
ARTICLE 2
SCOPE OF ARCHITECT'S BASIC SERVICES
2.1 DEFINITION
2.1.1 The Architect's Basic Services consist of those described in Paragraphs 2.2
through 2.6 and any other services identified in Article 11 as part of Basic
Services, and include without limitation normal roofing, structural, civil,
mechanical and electrical engineering services and any other engineering
services necessary to produce a set of Construction Documents,which will be
sufficient and adequate to fulfill the purposes of this project, as described by
and required in Paragraph 2.4.
2.2 SCHEMATIC DESIGN PHASE
2.2.1 The Architect, in consultation with the Owner, shall develop a written
program for the Project to ascertain Owner's needs and to establish the
requirements for the Project.
2.2.2 The Architect shall provide a preliminary evaluation of the Owner's program,
construction schedule and construction budget requirements,each in terms of
the other, subject to the limitations set forth in Subparagraph 5.2.1.
2.2.3 The Architect shall review with the Owner alternative approaches to design
and construction of the Project.
2.2.4 Based on the mutually agreed-upon program, schedule and construction
budget requirements,the Architect shall prepare, for approval by the Owner,
Schematic Design Documents consisting of drawings and other documents
illustrating the scale and relationship of Project components. The Schematic
Design shall contemplate compliance with applicable laws, statutes,
ordinances, codes and regulations.
2.2.5 The Architect shall submit to the Owner a preliminary detailed estimate of
Construction Cost based on current area, volume or other unit costs and
which indicates the cost of each category of work involved in constructing the
Project and establishes an elapsed time factor for the period of time from the
commencement to the completion of construction.
-2-
2.3 DESIGN DEVELOPMENT PHASE
2.3.1 Based on the approved Schematic Design Documents and any adjustments
authorized by the Owner in the program,schedule or construction budget,the
Architect shall prepare for approval by the Owner, Design Development
Documents consisting of drawings and other documents to fix and describe
the size and character of the Project as to architectural, structural, civil,
mechanical and electrical systems, materials and such other elements as may
be appropriate,which shall comply with applicable laws,statutes,ordinances,
codes and regulations. Notwithstanding Owner's approval ofthe documents,
Architect will provide Documents and specifications which will be sufficient
and adequate to fulfill the purposes of the Project.
2.3.2 The Architect shall advise the Owner of any adjustments to the preliminary
estimate of Construction Cost in a further Detailed Statement as described in
Paragraph 2.2.5.
2.4 CONSTRUCTION DOCUMENTS PHASE
2.4.1 Based on the approved Design Development Documents and any further
adjustments in the scope or quality of the Project or in the construction
budget authorized by the Owner,the Architect shall prepare,for approval by
the Owner, Construction Documents consisting of Drawings and
Specifications setting forth in detail requirements for the construction of the
Project,which shall comply with applicable laws, statutes, ordinances, codes
and regulations.
2.4.2 The Architect shall, with assistance of the Owner, prepare the necessary
bidding information, bidding forms, the Conditions of the contract, and the
form of Agreement between the Owner and contractor, and other required
bidding documents necessary to provide the Owner a completed bid
document.
2.4.3 The Architect shall advise the Owner of any adjustments to previous
preliminary estimates of Construction Cost indicated by changes in
requirements or general market conditions.
2.4.4 The Architect shall assist the Owner in connection with the Owner's
responsibility for filing documents required for the approval of other
governmental authorities having jurisdiction over the Project.
2.5 BIDDING
-3-
2.5.1 The Architect, following the Owner's Approval of the Construction
Documents and of the latest preliminary detailed estimate of Construction
Cost, shall assist the Owner in obtaining bids and assist in awarding and
preparing contracts for construction.
2.5.2 If the lowest bid for the construction of the Project exceeds the total
construction cost of the Project as set forth in the approved Detailed
Statement of Probable Construction Costs of the Project submitted by the
Architect, then the Architect, at its sole cost and expense, will revise the
Construction Documents in a continuous fashion so that they are completed
in a timely manner as may be required by the Owner to reduce or modify the
quantity or quality of the work so that the total construction cost of the
Project will not exceed the total construction cost set forth in the approved
Detailed Statement of Probable Construction Costs.
2.6 CONSTRUCTION PHASE -ADMINISTRATION OF THE CONSTRUCTION
CONTRACT
2.6.1 The Architect's responsibility to provide Basic Services for the Construction
Phase under this Agreement commences with the award of the Contract for
Construction and terminates at the completion of the one(1)year warranty
period. Architect shall inspect the Project prior to the expiration of the
warranty period and report to Owner the condition of the Project, including
any deficiencies or warranty issues.
2.6.2 The Architect shall provide administration of the Contract for Construction
as set forth below and in the edition of AIA document A201, General
Conditions of the Contract for Construction, current as of the date of this
Agreement,unless otherwise provided in this Agreement or approved by the
City.
2.6.3 Construction Phase duties,responsibilities and limitations of authority of the
Architect shall not be restricted, modified or extended without written
agreement of the Owner and Architect.
2.6.4 The Architect shall be a representative of and shall advise and consult with the
Owner(1)during construction, and(2)at the Owner's direction from time to
time during the correction, or warranty period described in the Contract for
Construction. The Architect shall have authority to act on behalf of the
Owner only to the extent provided in this Agreement unless otherwise
modified by written instrument.
-4-
2.6.5 The Architect shall visit the construction site at least two times a week,while
construction is in progress,to become familiar with the progress and quality
of the Work completed and to determine if the Work is being performed in a
manner indicating that the Work,when completed,will be in accordance with
the Contract Documents. Architect shall provide Owner a written report
subsequent to each on-site visit. On the basis of on-site observations as an
architect, the Architect shall keep the Owner informed of the progress and
quality of the Work, and shall exercise care and diligence in discovering and
promptly reporting to the Owner any defects or deficiencies in the work of
Contractor or any subcontractors_ The Architect represents that he will
follow high professional standards as described in 1.1.2 herein in performing
all Services under this Agreement. The Architect shall promptly correct any
defective designs or specifications furnished by the Architect at no cost to the
Owner. The Owner's approval, acceptance,use of or payment for all or any
part of the Architect's services hereunder or of the Project itself shall in no
way alter the Architect's obligations or the Owner's rights hereunder.
2.6.6 The Architect shall not have control over or charge of and shall not be
responsible for construction means, methods, techniques, sequences or
procedures, or for safety precautions and programs in connection with the
Work. The Architect shall not be responsible for the Contractor's schedules
or failure to carry out the Work in accordance with the Contract Documents.
The Architect shall not have control over or charge of acts or omissions of the
Contractor, Subcontractors, or their agents or employees, or of any other
persons performing portions of the Work.
2.6.7 The Architect shall at all times have access to the Work wherever it is in
preparation or progress, but shall have no responsibility for job site safety.
2.6.8 Except as may otherwise be provided in the Contract Documents or when
direct communications have been specially authorized, the Owner and
Contractor shall communicate through the Architect. Communications by and
with the Architect's consultants shall be through the Architect.
2.6.9 Based on the Architect's observations at the site of the work and evaluations
of the Contractor's Applications for Payment, the Architect shall review and
certify the amounts due the Contractor.
2.6.10 The Architect's certification for payment shall constitute a representation to
the Owner, based on the Architect's observations at the site as provided in
Subparagraph 2.6.5 and on the data comprising the Contractor's Application
for Payment,that the Work has progressed to the point indicated and that the
quality ofthe Work is in accordance with the Contract Documents. The fore-
-5-
going representations are subject to minor deviations from the Contract
Documents correctable prior to completion and to specific qualifications
expressed by the Architect. The issuance of a Certificate for Payment shall
further constitute a representation that the Contractor is entitled to payment
in the amount certified. However, the issuance of a Certificate for Payment
shall not be a representation that the Architect has(1)reviewed construction
means,methods,techniques,sequences or procedures,or(2)ascertained how
or for what purpose the Contractor has used money previously paid on
account of the Contract Sum.
2.6.11 The Architect shall have the authority to reject Work which does not conform
to the Contract Documents. Whenever the Architect considers it necessary
or advisable for implementation of the intent of the Contract Documents,the
Architect will have authority to recommend to the Owner additional
inspection or testing of the Work in accordance with the provisions of the
Contract Documents, whether or not such Work is fabricated, installed or
completed. However, neither this authority of the Architect nor a decision
made in good faith either to exercise or not exercise such authority shall give
rise to a duty or responsibility of the Architect to the Contractor,
Subcontractors,material and equipment suppliers,their agents or employees
or other persons performing Portions of the Work.
2.6.12 The Architect shall review and approve or take other appropriate action upon
Contractor's submittals such as Shop Drawings, Product Data and Samples
for the purpose of(1)determining compliance with applicable laws, statutes,
ordinances and codes, and(2) determining whether or not the Work will be
in compliance with the requirements of the Contract Documents. The
Architect shall act with such reasonable promptness to cause no delay in the
Work or in the construction of the Owner or of separate contractors, while
allowing sufficient time in the Architect's professional judgment to permit
adequate review. Review of such submittals is not conducted for the purpose
of determining the accuracy and completeness of other details such as
dimensions and quantities or for substantiating instructions for installation or
performance of equipment or systems designed by the Contractor,all ofwhich
remain the responsibility of the Contractor to the extent required by the
Contract Documents. The Architect's review shall.not constitute review or
approval of safety precautions, nor of construction means, methods,
techniques, sequences or procedures. The Architect's approval of a specific
item shall not indicate approval of an assembly of which the item is a
component. When professional certification of performance characteristics
of materials,systems or equipment is required by the Contract Documents,the
Architect shall be entitled to rely upon such certification to establish that the
materials, systems or equipment will meet the performance criteria required
by the Contract Documents.
-6-
2.6.13 The Architect shall prepare Change Orders and Construction Change
Directives, with supporting documentation and data if deemed necessary by
the Architect,for the Owner's approval and execution in accordance with the
Contract Documents, and may authorize minor changes in the Work not
involving an adjustment in the Contract Sum or an extension of the Contract
Time which are not inconsistent with the intent of the Contract Documents.
2.6.14 On behalf of the Owner,the Architect shall conduct inspections to determine
the dates of Substantial Completion and Final Completion, and shall issue
Certificates of Substantial and Final Completion. The Architect will receive
and review written guarantees and related documents required by the Contract
for Construction to be assembled by the Contractor and shall issue a final
certificate for Payment upon compliance with the requirements of the
Contract Documents.
2.6.15 The Architect shall interpret and provide recommendations on matters
concerning performance ofthe Owner and Contractor under the requirements
of the Contract Documents on written request of either the Owner or
Contractor. The Architect's response to such requests shall be made with
reasonable promptness and within any time limits agreed upon.
2.6.16 Interpretations and decisions of the Architect shall be consistent with the
intent of and reasonably inferred from the Contract Documents and shall be
in writing or in the form of drawings. When making such interpretations and
initial decisions,the Architect shall endeavor to secure faithful performance
by both Owner and Contractor, and shall not be liable for results or
interpretations or decisions so rendered in good faith in accordance with all
the provisions of this Agreement and in the absence of negligence.
2.6.17 The Architect shall render written decisions within a reasonable time on all
claims, disputes or other matters in question between the Owner and
Contractor relating to the execution or progress of the Work as provided in
the Contract Documents.
2.6.18 The Architect (1) shall render services under the Agreement in accordance
with the high professional standards as described in paragraph 1.1.2 herein;
and(2)by acknowledging payment by the Owner of any fees due,shall not be
released from any rights the Owner may have under the Agreement or
diminish any of the Architect's obligations thereunder.
2.6.19 The Architect shall provide the Owner with one(1)set of reproducible prints
and one (1) set of compact disks compatible with AutoCad 20001 of the
construction drawings showing all significant changes to the Construction
Documents during the Construction Phase. Drawings shall indicate significant
-7-
changes in the Work made during construction based on marked-up prints,
drawings and other data furnished by the Contractor to the Architect.
ARTICLE 3
ADDITIONAL SERVICES
3.1 GENERAL
3.1.1 The services described in this Article 3 are not included in Basic Services
unless so identified in Article 11, and they shall be paid for by the Owner as
provided in this Agreement, in addition to the compensation for Basic
Services. The services described under Paragraphs 3.2 and 3.4 shall only be
provided if authorized or confirmed in writing by the Owner. If services de-
scribed under Contingent Additional Services in Paragraph 3.3 are required
due to circumstances beyond the Architect's control,the Architect shall notify
the Owner prior to commencing such services. If the Owner deems that such
services described under Paragraph 3.3 are not required,the Owner shall give
prompt written notice to the Architect. If the Owner indicates in writing that
all or part of such Contingent Additional Services are not required, the
Architect shall have no obligation to provide those services. Owner will be
responsible for compensating the Architect for Contingent Additional Services
only if they are not required due to the negligence or fault of Architect.
3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES
3.2.1 If more extensive representation at the site than is described in Subparagraph
2.6.5 is required, the Architect shall provide one or more Project
Representatives to assist in carrying out such additional on-site
responsibilities.
3.2.2 Project Representatives shall be selected, employed and directed by the
Architect, and the Architect shall be compensated therefore as agreed by the
Owner and Architect. The duties,responsibilities and limitations of authority
of Project Representatives shall be as described in the edition of AIA
Document B352 current as of the date of this Agreement, unless otherwise
agreed.
3.3 CONTINGENT ADDITIONAL SERVICES
3.3.1 Making material revisions in Drawings, Specifications or other documents
when such revisions are:
_g_
3.3.1.1 inconsistent with approvals or instructions previously given by
the Owner, including revisions made necessary by
adjustments in the Owner's program or Project budget;
3.3.1.2 required by the enactment or revision of codes, laws or
regulations subsequent to the preparation of such documents,
or
3.3.1.3 due to changes required as a result of the Owner's failure to
render decision in a timely manner.
3.3.2 Providing services required because of significant changes in the Project
including,but not limited to, size, quality, complexity,the Owner's schedule,
or the method of bidding and contracting for construction,except for services
required under Subparagraph 2.5.2.
3.3.3 The Architect shall provide documents for alternate, separate or sequential
bids or providing services in connection with bidding or construction prior to
the completion of the Construction Documents Phase.
3.3.4 Providing consultation concerning replacement of Work damaged by fire or
other cause during construction, and furnishing services required in
connection with the replacement of such Work.
3.3.5 Providing services made necessary by the default of the Contractor, or by
failure of performance of either the Owner or Contractor under the Contract
for Construction.
3.3.6 Providing services in connection with a public hearing,arbitration proceeding
or legal proceeding except where the Architect is party thereto.
3.4 OPTIONAL ADDITIONAL SERVICES
3.4.1 Providing financial feasibility or other special studies,previously approved by
Owner.
3.4.2 Providing planning surveys, site evaluations or comparative studies of
prospective sites.
3.4.3 Providing special surveys,environmental studies and submissions required for
approvals of governmental authorities or others having jurisdiction over the
Project.
3.4.4 Providing services relative to future facilities, systems and equipment.
�9-
3.4.5 Providing coordination of construction performed by separate contractors or
by the Owner's own forces and coordination of services required in connection
with construction performed and equipment supplied by the Owner.
3.4.6 Providing services in connection with the work of a construction manager or
separate consultants retained by the Owner.
3.4.7 Providing detailed quantity surveys or inventories of material,equipment and
labor.
3.4.8 Making investigations, inventories of materials or equipment, or valuations
and detailed appraisals of existing facilities.
3.4.9 Providing assistance in the utilization of equipment or systems such as testing,
adjusting and balancing, preparation of operation and maintenance manuals,
training personnel for operation and maintenance and consultation during
operation.
3.4.10 Providing services other than as provided in Section 2.6.4, after issuance to
the Owner of the final Certificate for Payment and expiration of the Warranty
period of the Contract for Construction.
3.4.11 Providing services of consultants for other than architectural, structural,
mechanical, roofing, civil and electrical engineering portions of the Project
provided as a part of Basic Services.
3.4.12 Providing any other services not otherwise included in this Agreement or not
customarily furnished in accordance with generally accepted architectural
practice.
ARTICLE 4
OWNER'S RESPONSIBILITIES
4.1 The Owner shall consult with the Architect regarding requirements for the Project,
including(1)the Owner's objectives,(2)schedule and design constraints and criteria,
including space requirements and relationships, flexibility, expendability, special
equipment, systems and site requirements,as more specifically described in Paragraph
2.2.1.
4.2 The Owner shall establish and update an overall budget for the Project,including the
Construction Cost, the Owner's other costs and contingencies related to all of these
costs.
-10-
4.3 The Owner Shall designate a representative authorized to act on the Owner's behalf
with respect to the Project. The Owner or such authorized representative shall render
decisions in a timely manner pertaining to documents submitted by the Architect in
order to avoid unreasonable delay in the orderly and sequential progress of the
Architect's services.
4.4 The Owner shall furnish the services of geotechnical engineers when such services are
requested by the Architect and agreed to by the Owner. Such services may include
but are not limited to test bores, test pits, determinations of soil bearing values,
percolation tests,evaluations ofhazardous materials and hazardous materials storage,
ground corrosion and resistivity tests,including necessary operations for anticipating
sub-soil conditions, with reports and appropriate professional recommendations.
4.5 The Owner shall furnish structural,mechanical,chemical,air and water pollution tests,
tests of hazardous materials, and other laboratory and environmental tests,
inspections and reports required by law or the Contract Documents.
4.6 The Owner shall furnish all legal,accounting and insurance counseling services as may
be necessary at any time for the Project, including auditing services the Owner may
require to verify the Contractor's Applications for Payment or to ascertain how or for
what purposes the Contractor has used the money paid by or on behalf ofthe Owner.
4.7 The services,information,surveys and reports required by Paragraphs 4.4 through 4.7
shall be furnished at the Owner's expense, and the Architect shall be entitled to rely
upon the accuracy and completeness thereof in the absence of any negligence on the
part of the Architect.
4.8 The Owner shall give prompt written notice to the Architect if the Owner becomes
aware of any fault or defect in the Project or nonconformance with the Contract
Documents.
4.9 Architect shall propose language for certificates or certifications to be requested of
the Architect or Architect's consultants and shall submit such to the Owner for review
and approval at least fourteen(14) days prior to execution. The Owner agrees not
to request certifications that would require knowledge or services beyond the scope
of this Agreement.
-ll-
ARTICLE 5
CONSTRUCTION COST
5.1 DEFINITION
5.1.1 The Construction Cost shall be the total cost or estimated cost to the Owner
of all elements of the Project designed or specified by the Architect.
5.1.2 The Construction Cost shall include the cost at current market rates of labor
and materials furnished by the Owner and equipment designed, specified,
selected or specially provided for by the Architect, plus a reasonable
allowance for the Contractor's overhead and profit. In addition,a reasonable
allowance for contingencies shall be included for market conditions at the time
of bidding and for changes in the Work during construction.
5.1.3 Construction Cost does not include the compensation of the Architect and
Architect's consultants,the costs ofthe land,rights-of-way,financing or other
costs which are the responsibility of the Owner as provided in Article 4.
5.2 RESPONSIBILITY FOR CONSTRUCTION COST
5.2.1 Evaluations of the Owner`s Project budget, preliminary estimates of
Construction Cost and detailed estimates of Construction Cost prepared by
the Architect represent the Architect's best judgment as a design professional
familiar with the construction industry. It is recognized,however,that neither
the Architect nor the Owner has control over the cost of labor, materials or
equipment, over the Contractor's methods of determining bid prices, or over
competitive bidding or market conditions. Accordingly,the Architect cannot
and does not warrant or represent that bids will not vary from the Owner's
Project budget or from any estimate of Construction Cost or evaluation
prepared or agreed to by the Architect.
5.2.2 No fixed limit of Construction Cost shall be established as a condition of this
Agreement by the furnishing, proposal or establishment of a Project budget,
unless such fixed limit has been agreed upon in writing and signed by the
parties thereto. If such a fixed limit has been established, the Architect shall
be permitted to include contingencies for design,bidding and price escalation,
to determine what materials, equipment, component systems and types of
construction are to be included in the Contract Documents, to make
reasonable adjustments in the scope of the Project and to include in the
Contract Documents alternate bids to adjust the Construction Cost to the
fixed limit. Fixed limits,if any, shall be increased in the amount of an increase
-12-
in the Contract Sum occurring after execution of the Contract for
Construction.
5.2.3 If the Bidding Phase has not commenced within 90 days after the Architect
submits the Construction Documents to the Owner, any Project budget or
fixed limit of Construction Cost shall be adjusted to reflect changes in the
general level of prices in the construction industry between the date of
submission of the Construction Documents to the Owner and the date on
which proposals are sought.
ARTICLE 6
USE OF ARCHITECT'S DRAWINGS,
SPECIFICATIONS AND OTHER DOCUMENTS
6.1 The Drawings, Specifications and other documents prepared by the Architect for this
Project are instruments of the Architect's service for use solely with respect to this
Project and, unless otherwise provided, the Architect shall be deemed the author of
these documents and shall retain all common law,statutory and other reserved rights,
including the copyright. The Owner shall be permitted to retain copies, including
reproducible copies,ofthe Architect's Drawings, Specifications and other documents
for information and reference in connection with the Owner's use and occupancy of
the Project. The Architect's Drawings, Specifications or other documents shall not
be used by the Owner or others on other projects for additions to this Project or for
completion of this Project by others, unless this Agreement is terminated because
Architect is in default of this Agreement, at which time the documents become the
property of the City of Beaumont.
6.2 Submission or distribution of documents to meet official regulatory requirements or
for similar purposes in connection with the Project is not to be construed as
publication in derogation of the Architect's reserved rights.
ARTICLE 7
TERMINATION, SUSPENSION OR ABANDONMENT
7.1 Architect may terminate this Agreement upon not less than thirty days written notice
should the Owner fail substantially to perform in accordance with the terms of this
Agreement through no fault of the Architect. Owner may terminate this Agreement
or any phase thereof upon thirty(3 0)days prior written notice to the Architect with
the understanding that immediately upon receipt of such notice, all work and labor
being performed under the Agreement shall cease immediately. Before the end ofthe
thirty (30) day period, Architect shall invoice the Owner for all work it performed
-13-
prior to the receipt of such notice. No amount shall be due for lost or anticipated
profits. All plans, field surveys, and other data related to the Project shall become
property ofthe Owner upon termination ofthe Agreement and paragraph 6.1 shall not
apply and they shall be promptly delivered to the Owner in a reasonably organized
form. Should Owner subsequently contract with a new architect for continuation of
services on the Project, Architect shall cooperate in providing information.
72 If the Project is suspended by the Owner for more than 30 consecutive days, the
Architect shall be compensated for services performed prior to notice of such
suspension. When the Project is resumed, the Architect's compensation shall be
equitably adjusted to provide for expenses incurred in the interruption and resumption
of the Architect's services.
7.3 This Agreement may be terminated by the Owner upon not less than seven days
written notice to the Architect in the event that the Project is permanently abandoned.
If the Project is abandoned by the Owner for more than 90 consecutive days, the
Architect or the Owner may terminate this Agreement by giving written notice.
7.4 Failure of the Owner to make payments to the Architect in accordance with this
Agreement shall be considered substantial nonperformance and cause for termination.
7.5 If the Owner fails to make payment to Architect within thirty(30)days of receipt of
a statement for services properly performed, the Architect may, upon seven days
written notice to the Owner,suspend performance of services under this Agreement.
Unless Architect receives payment in full within seven (7) days of the date of the
notice, the suspension shall take effect without further notice. In the event of a
suspension of services under this section, the Architect shall have no liability to the
Owner for delay or damage caused the Owner because of such suspension of services.
7.6 In the event of termination not the fault of the Architect, the Architect shall be
compensated for services properly performed prior to termination.
ARTICLE 8
MISCELLANEOUS PROVISIONS
8.1 This Agreement shall be governed by the laws of the State of Texas.
8.2 Terms in this Agreement shall have the same meaning as those in AIA Document
A201, General Conditions ofthe Contract for Construction, current as of the date of
this Agreement.
8.3 The Owner and Architect, respectively, bind themselves, their partners, successors,
assigns and legal representatives to the other party to this Agreement and to the
-14-
partners,successors,assigns and legal representatives of such other parry with respect
to all covenants of this Agreement. Neither Owner nor Architect shall assign this
Agreement without the written consent of the other.
8.4 This Agreement represents the entire and integrated agreement between the Owner
and Architect and supersedes all prior negotiations, representations or agreements,
either written or oral. This Agreement may be amended only by written instrument
signed by both Owner and Architect.
8.5 Nothing contained in this Agreement shall create a contractual relationship with or a
cause of action in favor of a third party against either the Owner or Architect.
8.6 Unless otherwise provided in this Agreement, the Architect and Architect's
consultants shall have no responsibility for the discovery,presence,handling,removal
or disposal of or exposure of persons to hazardous materials in any form at the
Project site,including but not limited to asbestos,asbestos products,polychlorinated
biphenyl(PCB)or other toxic substances,provided,however,Architect shall have the
responsibility to and shall report to the Owner the location of any hazardous material
that an architect of skill and expertise should have noticed.
8.7 Upon receipt of prior written approval of Owner,the Architect shall have the right to
include representations of the design of the Project, including photographs of the
exterior and interior, among the Architect's promotional and professional materials.
The Architect's materials shall not include the Owner's confidential or proprietary
information if the Owner has previously advised the Architect in writing of the specific
information considered by the Owner to be confidential or proprietary. The Owner
shall provide professional credit for the Architect on the construction sign and in the
promotional materials for the Project.
ARTICLE 9
PAYMENTS TO THE ARCHITECT
9.1 DIRECT PERSONNEL EXPENSE
9.1.1 Direct Personnel Expense is defined as the direct salaries of the Architect's
personnel engaged on the Project and the portion of the cost of their
mandatory and customary contributions and benefits related thereto, such as
employment taxes and other statutory employee benefits, insurance, sick
leave, holidays, vacations, pensions and similar contributions and benefits.
9.2 REIMBURSABLE EXPENSES
-i$-
9.2.1 Reimbursable Expenses are in addition to compensation for Basic and
Additional Services and include expenses incurred by the Architect and
Architect's employees and consultants in the interest of the Project, as
identified in the following clauses.
9.2.1.1 Expenses in connection with authorized out-of-town travel;
long-distance communications and fees paid for securing
approval of authorities having jurisdiction over the Project.
9.2.1.2 If authorized in advance by the Owner, expense of overtime
work requiring higher than regular rates.
9.2.1.3 Expense ofrenderings,models and mock-ups requested by the
Owner.
9.2.1.4 Reproduction expenses associated with the printing of Plans
and Specifications to be used in the Bidding Phase.
9.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES
9.3.1 Payments for Basic Services shall be made monthly and, where applicable,
shall be in proportion to services performed within each phase of service, on
the basis set forth in Subparagraph 10.2.2.
9.3.2 When compensation is based on a percentage of Construction Cost and any
portions of the Project are deleted or otherwise not constructed,
compensation for those portions of the Project shall be payable to the extent
services are performed on those portions,in accordance with the schedule set
forth in Subparagraph 10.2.2 based on(1)the lowest bona fide bid or(2)if no
such bid or proposal is received, the most recent preliminary estimate of
Construction Cost or detailed estimate of Construction Cost for such portions
of the Project.
9.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES
9.4.1 Payments on account of the Architect's Additional Services and for
Reimbursable Expenses shall be made monthly upon presentation of the
Architect's statement of services rendered or expenses incurred. Such charges
shall be included as a separate item on the Architect's statement for Basic
Services.
9.5 PAYMENTS WMH-1ELD
9.5.1 No deductions shall be made from the Architect's compensation on account
of penalty, liquidated damages or other sums withheld from payments to
-16-
contractors,or on account of the cost of changes in the Work other than those
for which the Architect is responsible.
9.6 ARCHITECT'S ACCOUNTING RECORDS
9.6.1 Architect shall make available to Owner or Owner's authorized representative
records of Reimbursable Expenses and expenses pertaining to Additional
Services and services performed on the basis of a multiple of Direct Personnel
Expense for inspection and copying during regular business hours for three
years after the date of the final Certificate of Payment, or until any litigation
related to the Project is final, whichever date is later.
ARTICLE 10
BASIS OF COMPENSATION
The Owner shall compensate the Architect as follows:
10.1 BASIC COMPENSATION
10.1.1 FOR BASIC SERVICES, as described in Article 2, and any other services
included in Article 11 as part of Basic Services,Basic Compensation shall be
as follows:
Seven and one half percent(7.5 1/6) of the construction cost, not to exceed
Forty-five Thousand Dollars($45,000.00), unless the agreed program is
expanded.
10.1.2 Progress payments for Basic Services in each phase shall total the
following percentages of the total Basic Compensation payable:
• Schematic Design Phase 15%
•Design and Development Phase 20%
• Construction Documents Phase 30%
•Bidding Phase 10%
• Construction Phase 25%
• Total Basic Compensation 100%
10.2 COMPENSATION FOR ADDITIONAL SERVICES
10.2.1 FOR PROJECT REPRESENTATION BEYOND BASIC SERVICES, as
described in Paragraph 3.2, compensation shall be computed as follows:
-17-
See Attachment"A".
10.2.2 FOR ADDITIONAL SERVICES OF THE ARCHITECT, as described in
Articles 3 and 11, other than (1) Additional Project Representation, as
described in Paragraph 3.2, and(2) services included in Article 11 as part of
Additional Services,but excluding services of consultants,compensation shall
be computed as follows:
See Attachment"A".
10.2.3 FOR ADDITIONAL SERVICES OF CONSULTANTS,including additional
structural, mechanical, electrical, and civil engineering services and those
provided under Subparagraph 3.4.11 or identified in Article 11 as part of
Additional Services, a multiple of 1.15 times the amounts billed to the
Architect for such services.
10.3 REIMBURSABLE EXPENSES
10.3.1 FOR REIMBURSABLE EXPENSES,as described in Paragraph 9.2,and any
other items included in Article 11 as Reimbursable Expenses, a multiple of
1.15 times the expenses incurred by the Architect,the Architect's employees
and consultants in the interest of the Project.
10.4 ADDITIONAL PROVISIONS
10.4.1 Payments are due and payable thirty(30)days from the date of receipt of the
Architect's invoice. Amounts for services properly performed which remain
unpaid sixty(60) days after the invoice date shall bear interest at the rate of
one(1%)percent per month.
ARTICLE 11
OTHER CONDITIONS OR SERVICES
11.1 Architect shall maintain, at no expense to Owner, a professional liability(errors and
omissions)insurance policy placed with a company rated at least B+lX by Best's Key
Rating Guide, authorized to do business in Texas, in an amount not less than one
million dollars($1,000,000). Such policy shall require the giving ofwritten notice to
Owner at least thirty days prior to cancellation or non-renewal of any policies.
Architect shall furnish Owner with copies of said policies or certificates evidencing
such coverage.
11.2 Architect agrees to indemnify and hold harmless the City, its officers, agents,
and employees from and against any and all claims or suits for injuries,
-18-
damages, loss, or liability of whatever kind of character, arising out of or in
connection with the performance by the Architect of those services
contemplated by this Agreement,based upon the negligent acts of Architect,its
officers,agents,employees and expressly including allegations of negligence,acts
or omissions of the City of Beaumont, its agents, officers or employees, when
such negligence to the City arises from the negligent performance of professional
work undertaken by Architect hereunder.
This Agreement entered into as of the day and year first written above.
CITY OF BEAUMONT,TEXAS ARCHITECTURAL ALLIANCE INC.
OWNER ARCHITECT
BY: BY:
Kyle Hayes, City Manager James R Clark,AIA
Vice President
-19-
r:
ATTACHMENT "A"
LAiARC111T,ECTURAL ALLxANCE,INCORPORATED
y< 6654 Phelan Blvd. 13caumont,TX 77706 Tci 409/866-7196 Fax 409/866-1745
, ..
W W W.atohitectall.Com
Effective: October 1,2003 to October 1, 2004
Schedule of Hourly Rates
Principal:Architect $125,00
Project Manager/Coordinator $75.00
Cadd Draftsman Level 1 $30.00
Cadd Draftsman Level II $45.00
Cadd Draftsman Level III $55.00
Intem Architect Level 1 $40.00
Intem Architect Level 11 $55.00
Clerical/Bookkeeping $35.00
Tim AMERICAN INSTI1ZIlE OF ARCHITECTS
Paul N.Hay,AIA Ronald ML loud,AIA l
aM0QWN=MeuytM"V JV�2OU 7.Rob Clad;AIA
pg.1
Z
March 30, 2004
Consider authorizing expenditures to reimburse ExxonMobil Pipeline Company for the
adjustments of their facilities on FM364/Major Drive
City of Beaumont
.. Council Agenda Item
�:UUE . g
TO: City Council
FROM: Kyle Hayes, City Manager
PREPARED BY: Joris P. Colbert, City Engineer
MEETING DATE: March 30, 2004
AGENDA MEMO DATE: March 24, 2004
REQUESTED ACTION: Council approve a resolution authorizing expenditures to reimburse
ExxonMobil Pipeline Company for the adjustments of their facilities
on FM364/Major Drive.
RECOMMENDATION
Administration recommends reimbursement.
BACKGROUND
A Three Party Utility Agreement was executed between the City of Beaumont, the Texas
Department of Transportation and ExxonMobil Pipeline Company [Mobil Pipe Line Company,
ExxonMobil Oil Corporation, Mobil Vanderbilt-Beaumont Pipeline Company, ExxonMobil Oil
Corporation (MR)] on May 21, 2002. The total eligible cost for the adjustment of the pipeline
facilities, which is the amount owed to the utility company by the City of Beaumont, is listed
below. The Texas Department of Transportation will reimburse the City of Beaumont 80% of the
total cost, which is $167,774.28. The net cost to the City is $41,943.56.
U1-4002 [MPL] Final billing $28,656.42 Reimbursement $22,925.14
U1-4003 [MC] Final billing 19,104.15 Reimbursement 15,283.32
U1-4004 [MVB] Final billing 146,984.25 Reimbursement 117,587.40
U1-3955 [MR] Final billing 14.973.02 Reimbursement 11.978.42
Total billing $209,717.84 Total reimbursement $167,774.28
BUDGETARY IMPACT
The net cost to the City is $41,943.56 and is available in the Capital Improvement Program.
PREVIOUS ACTION
A Three Party Utility Agreement was executed between the City of Beaumont, the Texas
Department of Transportation and ExxonMobil Pipeline Company [Mobil Pipe Line Company,
ExxonMobil Oil Corporation, Mobil Vanderbilt-Beaumont Pipeline Company, ExxonMobil Oil
Corporation (MR)] on May 21, 2002.
SUBSEQUENT ACTION
The Texas Department of Transportation will reimburse the City of Beaumont 80% of the total
cost, which is $167,774.28. That is a net cost of$41,943.56 to the City.
RECOMMENDED BY
City Manager, Public Works Director and City Engineer.
Engmaj o r\mobil_reimbursement-ib.wpd
24 March 2004
Texas Department of Transportation
8350 EASTEX FREEWAY•BEAUMONT,TX 77708•(409)892-7311
March 22, 2004
ExxonMobil Pipeline Ul-4002
Jefferson County
CSJ 0786-01-064
9120-00-01
Hwy.: FM 364 from SH 124 to SH 105
Mr. Ronnie Pullin
Real Property Coordinator
City of Beaumont
P.O. Box 3827
Beaumont,Texas 77704-3827
Dear Mr. Pullin:
Reference is made to the above noted project and adjustment. The billing submission has been
reviewed and approved by Right of Way Division and the Audit office. We have been instructed to
authorize the City to make payment to the utility (ExxonMobil) for 100% of the eligible costs. The
final billing of$28,656.42 was reviewed and approved, and authorization is given to make payment in
that amount.
Enclosed please find a copy of the Tabulation of Utility Adjustments form requesting reimbursement
to the City of Beaumont for 80% of their adjustment payments, or$22,925.14. Please return this form
with evidence of payment to the utility. If you need additional information, please contact Wayne
David at 409-898-5770.
Sincerely,
wood Walters
istrict ROW Administrator
WD
Encl.
An Equal Opportunity Employer
Form ROW-U-45
5/2003
GSD-EPC
Page 1 of 1
TABULATION OF UTILITY ADJUSTMENTS (SUP)
Date:03-22-04 Federal Project No.:DPR 0057 (001)
County/City of Beaumont,Texas Highway:FM 364
Utility Utility Amount of Firm Commitment Amount of
Company Agreement Final Billing or Net Cost to Requested
Number County/City Reimbursement
ExxonMobil Pipeline U1-4002 $28,656.42 $5,731.28 $22,925.14
U- $ $ $
U- $ $ $
U- $ $ $
U- $ $ $
CERTIFICATION
I hereby certify that the above utility adjustment(s) were made in full accordance with the provisions of the Contractual
Agreement between the County/City of Beaumont,Texas,and the State of Texas,and the amount(s)shown herein under
"Firm Commitment or Net Cost to County/City"were accordingly paid to the utility company(ies)and documentary evidence
to this effect is contained in the County/City records.
Authorized Local Government Representative Date
`l
EXXONMOBIL PIPELINE COMPANY
INVOICE #P5200223315-MPL
15651 W Pt Arthur Rd. 28-Apr-03
Beaumont,Tx 77705
Customer No.4504211
City of Beaumont Remit to: ExxonMobil Pipeline Co.
P O Box 3827 P O Box 7247-8936
Beaumont,Tx 77704-3827 Philadelphia, PA 19170-8936
Attn: Ronnie L Pullin
Public Works Department
WHEN REMITTING PLEASE REFER TO PROJECT NO. PS.2002.23315
Cost to adjust extend casing on MPL-1 13 & MPL-1 16 due to
the expansion of Major Drive, Beaumont, Tx
ACTUAL CHARGES
COMPANY LABOR ez EXPENSE 1,510.08
MATERIALS 3,387.31
CONTRACT SERVICES 181982.95
MISC. SERVICES
SUB-TOTAL 23,880.34
20% OVERHEAD 4,776.08
.
TOTAL;!AMOUNT DUE .. .
$28,656'A 2
DETAILED BREAKDOWN OF CHARGES ATTACHED
Page 1
V
Texas Department of Transportation
8350 EASTEX FREEWAY•BEAUMONT,TX 77708•(409)892-7311
March 22, 2004
ExxonMobil Pipeline UI-4003
Jefferson County
CSJ 0786-01-064
9120-00-01
Hwy.: FM 364 from SH 124 to SH 105
Mr. Ronnie Pullin
Real Property Coordinator
City of Beaumont
P.O. Box 3827
Beaumont,Texas 77704-3827
Dear Mr. Pullin:
Reference is made to the above noted project and adjustment. The billing submission has been
reviewed and approved by Right of Way Division and the Audit office. We have been instructed to
authorize the City to make payment to the utility (ExxonMobil) for 100% of the eligible costs. The
final billing of$19,104.15 was reviewed and approved, and authorization is given to make payment in
that amount.
Enclosed please find a copy of the Tabulation of Utility Adjustments form requesting reimbursement
to the City of Beaumont for 80% of their adjustment payments, or$15,283.32. Please return this form
with evidence of payment to the utility. If you need additional information, please contact Wayne
David at 409-898-5770.
Sincerely,
woo alters
istrict ROW Administrator
WD
Encl.
An Equal Opportunity Employer
AF
Form ROW-U-45
5/2003
GSD-EPC
Page I of 1
TABULATION OF UTILITY ADJUSTMENTS (SUP)
Date:03-22-04 Federal Project No.: DPR 0057(001)
County/City of Beaumont,Texas Highway:FM 364
Utility Utility Amount of Firm Commitment Amount of
Company Agreement Final Billing or Net Cost to Requested
Number County/City Reimbursement
ExxonMobil Pipeline U1-4003 $19,104.15 $3,820.83 $ 15,283.32
U- $ $ $
U- $ $ $
U- $ $ $
U- $ $ $
CERTIFICATION
I hereby certify that the above utility adjustment(s)were made in full accordance with the provisions of the Contractual
Agreement between the County/City of Beaumont,Texas,and the State of Texas,and the amount(s)shown herein under
"Firm Commitment or Net Cost to County/City"were accordingly paid to the utility company(ies)and documentary evidence
to this effect is contained in the County/City records.
Authorized Local Government Representative Date
EX}(ONMOBIL PIPELINE COMPANY
r INVOICE #P5200223315-MC
15651 W Pt Arthur Rd. 28-Apr-03
Beaumont,Tx 77705
Customer No.4504211
City of Beaumont Remit to: Ex7conMobil Pipeline Co.
P O Box Beaumont O Box 7247-8936
Beaumont,Tx 77704-3827 Philadelphia, PA 19170-8936
Attn: Ronnie L Pullin
Public Works Department
WHEN REMITTING PLEASE REFER TO PROJECT NO. PS.2002.2331S
Cost to extend casing on MC-41 U MC-57 due to
the expansion of Major Drive, Beaumont,Tx
ACTUAL CHARGES
COMPANY LABOR st EXPENSE 1,186.49
MATERIALS 3,163.08
CONTRACT SERVICES 11,570.55
MISC. SERVICES
SUB-TOTAL 15,920.12
20% OVERHEAD 3,184.03
TOTAL AMOUNT DUE .
$t9,.1 1.5
DETAILED BREAKDOWN OF CHARGES ATTACHED
Page 1
Texas Department of Transportation
8350 EASTEX FREEWAY•BEAUMONT,TX 77708•(409)892-7311
March 22, 2004
ExxonMobil Pipeline UI-4004
Jefferson County
CSJ 0786-01-064
9120-00-01
Hwy.: FM 364 from SH 124 to SH 105
Mr. Ronnie Pullin
Real Property Coordinator
City of Beaumont
P.O. Box 3827
Beaumont,Texas 77704-3827
Dear Mr. Pullin:
Reference is made to the above noted project and adjustment. The billing submission has been
reviewed and approved by Right of Way Division and the Audit office. We have been instructed to
authorize the City to make payment to the utility (ExxonMobil)for 100% of the eligible costs. The
final billing of$146,984.25 was reviewed and approved, and authorization is given to make payment
in that amount.
Enclosed please find a copy of the Tabulation of Utility Adjustments form requesting reimbursement
to the City of Beaumont for 80% of their adjustment payments, or$117,587.40. Please return this
form with evidence of payment to the utility. If you need additional information, please contact Wayne
David at 409-898-5770.
Sincerely,
Lynwood Walters
District ROW Administrator
WD
Encl.
An Equal Opportunity Employer
AF—
Form ROW-U-45
5/2003
GSD-EPC
Page 1 of 1
TABULATION OF UTILITY ADJUSTMENTS (SUP)
Date:03-22-04 Federal Project No.:DPR 0057 (001)
County/City of Beaumont,Texas Highway:FM 364
Utility Utility Amount of Firm Commitment Amount of
Company Agreement Final Billing or Net Cost to Requested
Number County/City Reimbursement
ExxonMobil Pipeline U1-4004 $146,984.25 $29,396.85 S 117,587.40
U- $ $ $
U- $ $ $
U- $ $ $
U- $ $ $
CERTIFICATION
I hereby certify that the above utility adjustment(s) were made in full accordance with the provisions of the Contractual
Agreement between the County/City of Beaumont,Texas,and the State of Texas,and the amount(s)shown herein under
"Firm Commitment or Net Cost to County/City"were accordingly paid to the utility company(ies) and documentary evidence
to this effect is contained in the County/City records.
Authorized Local Government Representative Date
E)()CONMOBIL PIPELINE COMPANY
INVOICE #P5200223315-MVB
28-Apr-03
15651 W Pt Arthur Rd.
Beaumont,Tx 77705
Customer No.4504211 Remit to: ExxonMobil Pipeline Co.
City of Beaumont P O Box 7247-8936
P O Box 3827 Philadelphia, PA 19170 8936
Beaumont,Tx 77704-3827
Attn: Ronnie L Pullin
Public Works Department
WHEN REMITTING PLEASE REFER TO PROJECT IHO. PS.2002.23315
Cost to directionally drill and install new road crossing to adjust MVB 70 due to
the expansion of Major Drive, Beaumont,Tx
ACTUAL CHARGES
COMPANY LABOR 8z EXPENSE
7,334.66
18,514.92
MATERIALS
CONTRACT SERVICES 85,801-00
10,836.29
MISC. SERVICES
122,486.87
SUB-TOTAL
20% OVERHEAD 24,497.38
$146,9.84.25 L
TOTAL AMOUNT.DUE
DETAILED BREAKDOWN OF CHARGES ATTACHED
Page I
Texas Department of Transportation
8350 EASTEX FREEWAY•BEAUMONT,TX 77708•(409)892-7311
March 22, 2004
ExxonMobil Pipeline Ul-3955
Jefferson County
CSJ 0786-01-064
9120-00-01
Hwy.: FM 364 from SH 124 to SH 105
Mr. Ronnie Pullin
Real Property Coordinator
City of Beaumont
P.O. Box 3827
Beaumont,Texas 77704-3827
Dear Mr. Pullin:
Reference is made to the above noted project and adjustment. The billing submission has been
reviewed and approved by Right of Way Division and the Audit office. We have been instructed to
authorize the City to make payment to the utility(ExxonMobil) for 100% of the eligible costs. The
final billing of$14,973.02 was reviewed and approved, and authorization is given to make payment in
that amount.
Enclosed please find a copy of the Tabulation of Utility Adjustments form requesting reimbursement
to the City of Beaumont for 80% of their adjustment payments, or$11,978.42. Please return this form
with evidence of payment to the utility. If you need additional information, please contact Wayne
David at 409-898-5770.
Sincerely,
Lynwood Walters
District ROW Administrator �'r r- =au�no�T
D t, _
M-4 FcL—, '
WD
Encl.
VIAR 2 4 2004
An Equal Opportunity Employer
� a
Form ROW-U-45
5/2003
GSD-EPC
Page 1 of 1
TABULATION OF UTILITY ADJUSTMENTS (SUP)
Date:03-22-04 Federal Project No.:DPR 0057(001)
County/City of Beaumont,Texas Highway:FM 364
Utility Utility Amount of Firm Commitment Amount of
Company Agreement Final Billing or Net Cost to Requested
Number County/City Reimbursement
ExxonMobil Pipeline U1-3955 $14,973.02 $2,994.60 $ 11,978.42
U- $ $ $
U- $ $ $
U- $ $ $
U- $ $ $
CERTIFICATION
I hereby certify that the above utility adjustment(s)were made in full accordance with the provisions of the Contractual
Agreement between the County/City of Beaumont,Texas,and the State of Texas,and the amount(s) shown herein under
"Firm Commitment or Net Cost to County/City"were accordingly paid to the utility company(ies)and documentary evidence
to this effect is contained in the County/City records.
Authorized Local Government Representative Date
EXJ(ONMOBIL PIPELINE COMPANY
INVOKE #P5200223315-MR
15651 W Pt Arthur Rd. 28-Apr-03
Beaumont,Tx 77705
Customer No.4504211
City of Beaumont Remit to: ExxonMobil Pipeline Co.
P O Box Beaumont O Box 7247-8936
Beaumont,Tx 77704-3827 Philadelphia, PA 19170-8936
Attn: Ronnie L Pullin
Public Works Department
WHEN REMITTING PLEASE REFER TO PROJECT NO. PS.2002.2331S
Cost to extend casing on MR-6, MR-1,MR-5 and MR-1 14 due to
the expansion of Major Drive, Beaumont,Tx
ACTUAL CHARGES
COMPANY LABOR 8t EXPENSE 755.04
MATERIALS 3,95 5.96
CONTRACT SERVICES 7,766.51
MISC. SERVICES
SUB-TOTAL 12,477.51
20% OVERHEAD 2,495.51
.TOTAL:AM DU_E
DETAILED BREAKDOWN OF CHARGES ATTACHED
Page 1
3
March 30,2004
Consider approving the purchase of a tractor for use in the Parks Division
tu7ej-
City of Beaumont
Council Agenda Item
TO: City Council
FROM: Kyle Hayes, City Manager
PREPARED BY: Kirby Richard, Central Services Director
MEETING DATE: March 30, 2004
AGENDA MEMO DATE: March 19, 2004
REQUESTED ACTION: Council consider award of a bid for the purchase of one tractor with
articulated boom mower.
RECOMMENDATION
Administration recommends the award of a bid to Brookside Equipment Sales,Inc.of Houston in the
amount of$56,127 for the purchase of one(1)two wheel drive tractor with articulated boom mower
attachment for the Parks and Property Services Division.
BACKGROUND
Two(2)companies submitted bids for furnishing one(1)diesel driven two wheel drive tractor with
an articulated boom mower attachment. The 80 HP tractor will be used by the Parks and Property
Services Division to mow ditches and canal banks throughout the City.
The articulated boom mower with a 23 ft. reach is capable of mowing along steep canal banks and
ditches. Currently,the Parks and Property Services Division maintains approximately 336 acres of
outfall ditches. The ditches are maintained monthly by a crew ofthree(3)Parks Division employees.
The companies submitting bids are as follow:
Brookside Equipment Sales, Inc. (Houston) $56,127
Oil City Tractors, Inc. (Beaumont) $57,990
The sales tax impact analysis failed to alter the bid standings as well as the 3%percent state legislated
local preference rule.
Purchase of Tractor
March 19, 2004
Page 2
This tractor will replace unit 4242, a 1988 Ford tractor equipped with an extended mower.
Warranty service will be provided by Brookside Equipment Sales in Houston. The tractor is
warranted for twenty-four(24)months and a twelve(12)month warranty is provided for the mower.
BUDGETARY IMPACT
Funds are available in the Capital Reserve Fund for this expenditure.
PREVIOUS ACTION
None.
SUBSEQUENT ACTION
None.
RECOMMENDED BY
City Manager and Central Services Director.
4
March 30,2004
Consider amending Ordinance No. 03-082 relating to the structure located at 1380 Ewing
117Ej-R!j
Cit y of Beaumont
Council Agenda Item
TO: City Council
FROM: Kyle Hayes, City Manager
PREPARED BY: John Labrie, Clean Community Department Director� -
MEETING DATE: March 30, 2004
AGENDA MEMO DATE: March 23, 2004
REQUESTED ACTION: Consider an ordinance amending Ordinance No. 03-082
relating to the structure located at 1380 Ewing.
RECOMMENDATION
At the request of Councilperson Audwin Samuel, Administration recommends that Council review
detailed information related to the structure located at 1380 Ewing and consider allowing the
property owner to rehabilitate it.
BACKGROUND
This structure was presented before City Council on October 28, 2003 with the recommendation
of a raze or repair order. The property owner was given 120 days to complete the repairs or have
a substantial amount of repairs completed. The property owner did not do either so the structure
was condemned and the final notification was mailed to the owner for non-compliance with
council order.
BUDGETARY IMPACT
City may incur the cost of demolition if the structure is not rehabilitated.
PREVIOUS ACTION
The Administration recommended and Council approved a raze or repair order for this structure
on October 28, 2003.
SUBSEQUENT ACTION
If Council grants a time period for rehabilitation, staff will enroll the owner in a new work
program and monitor the progress of work. If the structure is not brought up to code or
substantial progress is not made within the specified time period, the structure will be demolished
without any further notification to property owner or Council action. If Council does not grant
more time, the structure will be demolished.
RECOMMENDED BY
City Manager and Clean Community Department Director.
INTER-OFFICE MEMORANDUM
CITY OF BEAUMONT, TEXAS
DATE: March 22, 2004
TO: John Labrie, Clean Community Department Director
FROM: Pamela Loiacano, Demolition Field Supervisor
SUBJECT: 1380 Ewing
COMMENT:
♦ The structure was tagged on 1/30/01 as a dangerous structure. The property owner at
that time was Theo Williams, c/o Irene Glass with a Houston address.
♦ Certified notice was issued to the property owner on 02/15/01.
♦ Certified notice was returned on 03/06/01 as unclaimed.
♦ New property owner, Dwight B. Gasaway, was notified by certified letter on 10/01/03
that the structure was to be presented before City Council on 10/28/03.
♦ Certified notice was received by Mr. Gasaway on 10/6/03.
♦ Published in Beaumont Enterprise on 10/15/03 and 10/22/03.
♦ Structure appeared before City Council on 10/28/03 and was given a raze or repair
order.
♦ Certified notice was issued to Mr. Gasaway on 10/31/03 informing him of Council's
order to raze or repair the structure.
♦ Certified letter was received and signed for on 11/04/03.
♦ On 11/14/03, Mr. Gasaway came into the office and signed a work repair program
allowing 120 days to repair the structure.
♦ On reinspection on 03/02/04, it was noted that there had been no work done at all nor
any permits bought from Building Codes.
♦ On 03/03/04, a certified notice was issued to the property owner informing him that the
structure was condemned for noncompliance with City Council's order of 10/28/03.
♦ Property owner received certified notice on 03/06/04.
SUBSTANDARD BUILDING INSPECTION REPORT
CLEAN COMMUNITY
CITY OF BEAUMONT
DATE REQUESTED March , 2004 WARD 3
ADDRESS OF INSPECTION 1380 Ewing
ACCOUNT NO. 12100-2100-0 CENSUS TRACT 10
OWNER Dwight B Gasaway
ADDRESS 1310 Louisiana Street CITY/STATE (411-1221
LEGAL DESCRIPTION APPRAISAL VALUE
Lot or Plat Lot 3 Land Value 800
Block or Tract Block 6 Improvement Value 8830
Addition/Survey C ai on Total Value 9630
A. Fifty (50) percent deterioration of non-supporting members? YES X NO
B. Thirty-three (33) percent deterioration of supporting members? YES X NO
C. Fire damaged? YES NO X
D. Enrolled in Work Repair Program? YES NO X
E. Initial Inspection Date January 30 2001
MAJOR CODE VIOLATIONS: This structure's roof is deteriorated and new shingles will be needed
The shingles are worn and there is some sagging to the roof. There are damaged rafter tails. The rear
porch door is damaged and will need to be replaced The interior of the structure has been cleared out
The floors are buckling The structure is secure and the interior inspection was made by viewing through
the windows All damaged electrical wiring and electrical fixtures will need to be replaced Outside
service will need to be updated to meet code compliance Also all damaged plumbing and plumbing
fixtures will need to be replaced The structure is next door to a church This structure was presented
before Council on October 28, 2003, and was given a raze or repair order at that time. The property
owner did enroll in a work repair program but did not purchase a permit nor has any work been done
After 120 days the structure was condemned per Council's order,
SEE ATTACHED PHOTOS
8
i
i
a.
r
"A
a
9 q
M
"7ta,; ���a�a•d ;F � .y.5ay,pr'. na
ar
y �
� .i�� r�i 1 � 4u1� J� �� I III 'k ...�•d R'Y �F y :# yP:
��g
i}il`1
k 1?
i a
` r ^ �
rwti.
I:� +i I - e `yam". �, i :• ;
g
AG
r,.
NEFF
ORDINANCE NO.
ENTITLED AN ORDINANCE AMENDING ORDINANCE NO.
03-082 TO REMOVE THE STRUCTURE LOCATED AT 1380
EWING FROM SECTION 1 AND SECTION 3 AND ORDER
THAT THE STRUCTURE AT 1380 EWING STREET BE
DEMOLISHED OR REPAIRED WITHIN DAYS;
PROVIDING FOR SEVERABILITY, AND PROVIDING FOR A
PENALTY.
BE IT ORDAINED BY THE CITY OF BEAUMONT:
Section 1.
That Ordinance 03-082 be and the same is hereby amended to amend Sections 1
and 3 to remove item Number 28, 1380 Ewing.
Section 2.
In accordance with Article XVII, Section 2, of the Charter of the City of Beaumont,
Section 10-2 and 14-52 of the Code of Ordinances of Beaumont, Texas and Section 103.4
of the Standard Building Code, it is hereby ordered that the owner or owners of the building
located at 1380 Ewing either demolish or repair such structure within days of
the effective date of this ordinance. If the owners fail or refuse to repair or demolish the
structure within the time limit set herein, the City is authorized to demolish the structure
without further Council action.
Section 3.
That if any section, subsection, sentence, clause or phrase of this ordinance, orthe
application of same to a particular set of persons or circumstances should for any reason
be held to be invalid, such invalidity shall not affect the remaining portions of this
ordinance, and to such end the various portions and provisions of this ordinance are
declared to be severable.
Section 4.
That any person who violated any provision of this ordinance shall, upon conviction,
be punished as provided in Section 1-8 of the Code of Ordinances of Beaumont, Texas.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 3011 day
of March, 2004.
- Mayor Evelyn M. Lord -
City of Beaumont
REGULAR MEETING OF THE CITY COUNCIL
COUNCIL CHAMBERS LARCH 30, 2004 L30 P.M.
CONSENT AGENDA
Approval of minutes
:{ Confirmation of committee appointments
Patrick Webb would be appointed to the Martin ether Ding, Jr. ]Parkway Commission. The term
would commence March 309 2004 and expire March 29, 2006. (Councilmember Nancy Beaulieu)
A) Authorize the City Manager to execute all documents necessary, specifically including a
License Agreement, in order for the Beaumont]Police Department to continue to maintain a
Police Substation at parkdale Mall
B) Authorize the conveyance of a forty foot (40') drainage easement located off Lawrence
Drive and US 96, 69, 287 to Drainage District 96
C) Approve a resolution to allow Hibernia National Dank to release a security as collateral
for City accounts
D) Authorize the City Manager to execute the renewal of a lease agreement with the State of
Texas for coastal public lands
A
~" City f. o
� c
Council Agenda Item
TO: City Council
FROM: Kyle Hayes, City Manager
PREPARED: Tom Scofield, Chief of Police
MEETING DATE: March 30, 2004
AGENDA MEMO DATE: March 24, 2004
REQUESTED ACTION: Consider a Resolution authorizing the City Manager to
execute all documents necessary, specifically including
a License Agreement, in order for the Beaumont Police
Department to continue to maintain a Police Substation
at Parkdale Mall.
RECOMMENDATION
Administration recommends authorizing the City Manager to execute all documents necessary to
continue the Police Substation at Parkdale Mall.
BACKGROUND
The Beaumont Police Department has had a Police Substation at Parkdale Mall for
approximately ten(10)years. The City was asked to sign Parkdale Mall's standard (form)
license agreement. The City asked to modify the agreement. Attached is the modified agreement
from Parkdale Mall which includes the City's requested changes.
BUDGETARYIMPACT
The total fee is one dollar($1.00).
PREVIOUS ACTION
The Police Department has had a Police Substation at Parkdale Mall since 1994.
SUBSEQUENT ACTION
None
RECOMMENDED BY
City Manager and Chief of Police
RECOMMENDED MOTION
Accept/Deny the Resolution authorizing the City Manager to execute all documents necessary,
including a License Agreement, in order for the Beaumont Police Department to continue to
maintain a Police Substation at Parkdale Mall.
EL1__ NSF.AMIELMLLY
Revised: 6/01/03
Deal Type: nI line
Unit: H-848
Agreement Type Renewal
THIS LICENSE is made this day of 200_,by and between Parkdale Mall
Associates by CBL&Associates Management Inc.,its managing agent,("Licensor")and_City of B a mon ,a(n)
ve_Go _rnment incorporated in the state of=,having offices at 2�g�nt T�77701 lttn Ky H .P�
Phone:409-880-3801 Fax:409-880-384A ('Licensee").
It is understood and agreed that this Agreement is,and is intended to be a License,granting the
Licensee permission to engage in certain acts upon the Licensoes premises,subject to the terms,
conditions and limitations set forth herein. Licensor does not grant Licensee any permanent interest in
Licensor's premises,land,building or other realty whatsoever,nor shall any other relationship between the
parties,including,but not limited to that of landlord and tenant be implied or created by virtue of this
Agreement. The License granted by this Agreement may not be sold,assigned,transferred,mortgaged,
pledged or transferred by Licensee.
In consideration of the agreements set forth herein the parties agree:
1. liccoac Area, Licensee's rights,duties and obligations under this Agreement shall be limited
to the specific area containing approximately 799.88 square feet of floor area,as identified on Exhibit A,
attached hereto and made a part hereof("License Area"), in Parkdale Mall Beaumont T%,(The
"Shopping Center"). Licensee shall have no right to use any other area of Licensor's premises,other than
common areas open to the general public.
2• Duration: Licensee's rights under this Agreement shall commence on the earlier of:(a)
10/I/2003(b) or the day Licensee opens(the"Commencement Date"),and shall end on 9/30/2004(the
`Expiration Date"),unless the License referenced in this Agreement is revoked earlier by Licensor.
Licensor shall not be liable to Licensee in damages or otherwise for any delay in the Commencement
Date,regardless of cause.
'Licensor or Licensee may revoke this License at any time,with or without cause,and with sixty days
advance written notice
3. IL=- The License Area shall be occupied and used by the Licensee solely for the purpose of
use of Premises(Space H-848)as a nolcgdepartment a, eta ion for shift cbangC5.LOW riting phone
work; t�gmem!ses shall not be sed as a jail, as approved by mall management,and for no other
purpose whatsoever.
Licensee shall store and/or stock in the License Area only such merchandise as Licensee is
permitted to offer for sale in the License Area pursuant to this License. Licensee shall not violate
applicable federal,state,and local laws prohibiting the sale or display of products,which infringe on the
trademarks or copyrights of others.
4. D/B/A.Licensee shall occupy and use the License Area under the trade name of Cim_ f
Beaumont which shall not be changed without Licensor's prior written consent.
S Ecjt& Licensee shall pay Licensor,without notice,demand or setoff,at the property office or
such other location as Licensor may specify,by rcidfied check or money order on or before the start
gate of this agreement and on the first day of each month thereafter:
Start Dat End Egg Totem
0)Minimum Fee(s): 10/1/2003 10/31/2003 $1.00 $1.00
In addition to the Total Minimum Fee set forth above,Licensee shall pay to Licensor,the following fees
in accordance with the schedule set forth below:
Additional es
Dcription egg Fr o, n. Start Date End Date
F
(ll)
1
6. Damaee Deposit: Licensee deposits herewith the sum of due upon Licensee
execution unless otherwise noted. (Waived),as a damage deposit which shall be applied towards fees
and other charges due under this Agreement and as a surety for the performance by Licensee of the
terms of this License under which Licensee may be in default or for any sum which Licensor may
expend by reason of Licensee's default in respect of any of the terms of this License including any
damages which may result to the License Area. Within thirty(30)days after the expiration of the term
of this License there shall be an accounting with payment to Licensor or reimbursement to Licensee,
as the case may be,of the aforesaid sum. In the event this License is terminated,the damage deposit
will be returned to Licensee after deducting any sums due Licensor.
If Lieensee mall a - ---- r whet,due;-L-ieerxsee
-sks�-pAy�ieenseru
uea if the teffn of this Agreement mil eattse a less of
eustertxers-ascl aeher-uxc�rtattr da:nsges e ieenso ehiel}Atc aaE easily ricertsmxble-sr ci�iee 3sea
hate6"grees to gay Lieenso1 90 per dAy as ltr?uielAter�dAmAges rre net ars�eaa}tj fer srzy perisc}
& aoaeeraphaaee-
y--�s�: l i ieensee-shall-c#e&s-erte-I.-ieensor,-li}r�:OE�i:rn-ea-tlze-t4Fcrm};t�-Fi>Ile�aing
eaelt eslertdar�c eek-tkrangireuttl,e teem;st-T�}eerrsers lit:stness�`rae r�the Shep}�'.
5t3fc't1�1CRE-r3�8"trvi�crat3d-CeVeftt9e8�Vtt}1-581 @3-i%c-rrr3a'.uii i}. T:__.___ -irrr T.�CCn occ-ra
,xtx arseiveelt�ieetrsee shAllcielie er to l icenser mil-writtet
_._:c..::.:of -,_sales ,tn,�rx-signeei-lay-bi
Lieenseel"ecuritrer vaf-�eease-ATea—f-6een see Bees nrrt tleliv ;�r rcnp en tires
in lieti of lsieerrs ,a ra ,
— t , a
eft and the Aft-,,es fin all serv'ees-Fan�.
€forrraa{ rttt e€ilr J
Fell
ripe eC
mod,. ..1_ ale 1_' i -[
i a, ,
'c]Orti-aa
Lieensee-(but-noi-b nay j enrleres Licensee) 'r l He deemed to be made:..the L4eenie Afea i r
At n-eider-tltetefexF-is-ser'treed-er-ee-=:'.=='�-:he-fieensF-A Win_
xerliether et neF suek arcls r nor-,rr eke
lrFease�iesrerelsewkereer-iE-parstlAnt-te-mail,-EelegrAjal�-tel eplreae-eretlrersinrilar-==-r�ars�=ders am
reFei___,�_ ��a<vx frartrtkc�ieensrea
eerrse�ara-t;,-aeean;.tt:ree vrttlr-generally aeFepted-sFeeurriaig
prsetiFe art rlrt aeeurste�ae
tererrues-. ' tatnHaatrAec e1°.-f Grass;, �
stn dit-)jy--I.-ieenser-Tr there is
-,
def ieiene�-irrt}te-atxraurst-pAyetfi}ete-L_ieens`-,,�.�'ie�rsee-shall imtneclrat�-L-ieenso.�l:e-adelrrnjal
eensarar tlr Vii.
9. Relocation, Licensor reserves the right to move,relocate,adjust or substitute the License
Area,in Licensoe's sole discretion. Licensor shall make every reasonable effort to do so in such a way as
to be least disruptive to Licensee's business operations.
10. Revocation The License granted by virtue of this Agreement may be revoked by Licensor,
in Licensoe's sole discretion for any reason,including,but not limited to the Specific Grounds for
Revocation as set forth in Paragraph 14 hereof,upon not less that twenty-four(24)hours notice to
Licensee. Licensee shall not be entitled to reimbursement or compensation for any purported damages
or losses sustained as the result of any such revocation by Licensor.
I1. L}eensee-skAll,-at-its-full-east-sad-e.�tl�ettse;ptaFUre-aatl�arrtixue-is-feee�
r]trnrrg-tke-;�._._��.a�lz�� ent;ttarttmeret ral-1tA�ii
Al'b>es'te kty-�xrsuranee-tz rcladrag-earrtt:tecusl-lialsilt'ty-a'ncl
piepett}*1 tarAge relating to-tlre Lieer:s4lrca-esveriag aaY and alt elAt:ns far irxjt+ries to persaas ariapotr-the
License-Aterr.-�nek-iasut;�aee-;kall-He-sin le-litrrit-eevert r . ,
�, .,,,,,,, $ gc-ia-Arr-amauat-e,--t=et-��-�sr�,atrk3rre-;tlilliea
v= H} ?allars-bieeasee shall ALSa ESrry mark_arttpeasatiea-ftrsurA,. a;the,.,atutax�
Arrreuat-Axy-iasu---palieias-regta=e1-e r adit-slrAll iraare 4.ieem sad Atry e,3igtrees$€..biaensar
as Atradtittieaal irrsnre sed L ieetrsee skal=dui ' ' y
aFetrpA»�-`-*=_ n,�.t. asuraaFF�evc�agel'riar-te
Startrrg yalr. ' Licensee-F t .,_
Shall in effltti�;,.Ad TL; ner tES-prtreais ,yul 1 e
re-4tirrg-ar a fte
irre-ludisa all-F-1-18t'
%T�r19 z
'Licensee is self insured for all general and automobile liability and will hold Licensor harmless for all
claims arising from Licensee's use of the leased premises.
2
13. Liability of 1,iccusor; Licensor shall not be responsible or liable for,and Licensee hereby
expressly waives,all claims against Licensor for injury to persons or damage to Licensee's property on the
License Area,regardless of the cause. Licensee's property in the License Area or the Shopping Center
shall be there at Licensee's sole risk. Licensor,its agents, and employees shall not be liable for, and
Licensee waives,all claims for loss or damage to Licensee's business or damage to person or property
sustained by Licensee or any person claiming by,through or under Licensee resulting from any accident
or occurrence in, on, or about the License Area or any other part of the Shopping Center, including,
without limitation, claims for loss, theft, or damage resulting from (i) equipment or appurtenances
becoming out of repair;(ii)injury done or occasioned by wind or weather;(iii)any defect in or failure to
operate,for whatever reason,any sprinkler,heating,or air-conditioning equipment,electric wiring or the
installation thereof,gas,water,or steam pipes,stairs,porches,railings,or walks;(iv)broken glass;(v)the
backing up of any sewer pipe or downspout; (vi) the bursting, leaking, or running of any tank, tub,
washstand,water closet,waste pipe,drain,or other pipe;(vii) the escape of steam or water; (viii)water,
snow,or ice being upon or coming through the roof,skylight,trap door,stairs,doorways,windows,walks,
or any other place upon or near the Shopping Center;(ix)the falling of any fixture,plaster,tile,stucco,or
other material;(x)any act,omission,or negligence of other licensees or any other persons or occupants of
the Shopping Center or of adjoining or contiguous buildings,of owners of adjacent or contiguous property,
or the public,or by operations in the construction of any private,public,or quasi-public work;or(xi)any
other cause of any nature. To the maximum extent permitted by law,Licensee agrees to use and occupy
the License Area,and to use such other portions of the Shopping Center as Licensee is herein given the
right to use,at Licensee's own risk.
14. Uccific Grounds for Revocation: If, (a) Licensee fails to perform any of the terms,
conditions,or covenants of this License;or(b)in the event there shall be filed by,or against,Licensee in
any court pursuant to any statute,either of the United States or any State,a petition(i)in bankruptcy,(ii)
alleging insolvency, (iii) reorganization, (iv) appointment of a receiver, (v) any arrangement of the
bankruptcy acts, or a similar type of proceeding; or (c) Licensee fails to pay,when due, any payment
required hereunder;or(d)Licensee abandons or vacates the License Area;or(e)in the event of any other
default by Licensee;then in any such event Licensee's rights hereunder shall cease and,Licensor may at
its option(1)have the right to immediately revoke and terminate this License,and upon demand Licensee
agrees to immediately surrender possession of the License Area to the Licensor; (2) make demand for
immediate payment of all current and future rent and any other monetary obligations due hereunder;(3)re-
enter the License Area and remove all persons and/or any property therefrom,by any suitable action or
proceeding at law. All rights and remedies of Licensor herein or at law and in equity are cumulative. If
Licensor,at its sole discretion,determines it is necessary to engage attorneys to enforce Licensor's rights
hereunder,Licensee will reimburse Licensor for reasonable attorney's fees and court costs. With respect
to any litigation arising out of this License Agreement,Licensee hereby expressly waives the right to a trial
by jury and the right to file noncompulsory countersuit or crossclaim against Licensor.
15. Obligations Upon Revocation: Upon service of the notice required by above Paragraph 10,
Licensee shall:(a)remove all of Licensee's property,including,but not limited to inventory and trade
fixtures from Licensor's premises within the time period set forth in the notice;(b)upon demand of
Licensor,pay all current and future charges due under this Agreement;(c)reimburse Licensor for all
reasonable attorney fees and court costs incurred as the result of Licensor enforcing its rights under this
Agreement. Licensor's rights and remedies under this Agreement are cumulative and Licensor's failure to
assert any claim allowed under this Agreement at any time shall not be construed as a waiver of the same.
16. Damage. This License shall be revoked automatically if any portion of the License Area
is damaged by fire or other peril, regardless of the cause. Licensee shall have no recourse against
Licensor as a result of damage due to fire or any other peril.
17. Liability' There shall be no personal liability of Licensor with respect to this License. If
a breach by Licensor occurs,Licensee shall look solely to the equity of Licensor in the Shopping Center
for the satisfaction of Licensee's remedies.
18. PrQyisions, Licensor is or may be a party to certain documents,as amended from time to
time, with a mortgagee or beneficiary of Licensor, department stores, mall tenants, and others. This
License is subject and subordinate to all the provisions in those documents,as amended from time to time.
19. Ter�of Agreement This License contains all the covenants, promises, agreements,
conditions, and understandings between Licensor and Licensee. There are no other, either oral or
written,between them other than those set forth in this License.
20' ObIlaalion upon Expiration: Upon the Expiration Date of this Agreement,Licensee shall
immediately remove all of Licensee's property,including,but not limited to inventory and trade fixtures
from Licensor's premises and otherwise return the License Area to the same condition as it existed at the
Commencement Date hereof. If Licensee shall fail to do so,Licensor shall be entitled to additional fees
equivalent to one hundred twenty-five percent(125%)of the total Minimum Fee specified in Paragraph 5
hereof,assessed in daily increments as one-thirtieth(1/30) of the total monthly amount. Licensee shall
also reimburse Licensor for any court costs and reasonable attorney fees incurred as the result of
Licensee's failure to vacate the License Area upon the Expiration Date as set forth in Paragraph 2 hereof.
21. Liability of Licen&QL The term "Licensor" means only the owner or mortgagee in
possession for the time being of the building in which the License Area is located or the owner of a
3
leasehold interest in said building and/or the land thereunder so that in the event of sale of said building
and/or an assignment of this License by Licensor, and/or a demise of said building and/or the land,
Licensor shall be and hereby is entirely freed and relieved of all obligations of Licensor hereunder and it
shall be deemed without further agreement between the parties and such purchaser(s), assignee(s), or
lessee(s) that the purchaser, assignee, or lessee has assumed and agreed to observe and perform all
obligations of Licensor hereunder.
It is specifically understood and agreed that there shall be no personal liability of Licensor(nor
Licensor's agent,if any)in respect to any of the covenants,conditions,or provisions of this Agreement;in
the event of a breach or default by Licensor of any of its obligations hereunder,Licensee shall look solely
to the equity of the Licensor in the Shopping Center for the satisfaction of Licensee's remedies.
In addition hereto, it is specifically understood and agreed that Licensor's rights, privileges,
duties, and obligations may be administered by Licensor's designee, including, but not limited to,
Licensor's agent,and that such designee shall have the full authority of Licensor hereunder to perform all
of Licensor's functions hereunder including, but not limited to, the execution of this License and any
other related documentation.
22. Non-Waiver Provision: The failure of Licensor to insist upon performance of any
of the terms,conditions,and covenants hereof shall not be deemed to be a waiver of any rights or remedies
that Licensor may have and shall not be deemed a waiver of any subsequent breach or default in the terms,
conditions,and covenants herein contained.
23. Binding Agreement This Agreement may not be modified in any manner other than by a
written agreement signed by Licensee and Licensor,or any successor,designee,or assignee of Licensor.
The terms, conditions and covenants set forth herein shall inure to the benefit of and be binding upon
Licensee and Licensor,or any successor,designee or assignee of Licensor.
24. resign Requirements; All costs and expenses (including permits or licenses)
attributable to the construction of the License Area by Licensee shall be borne by Licensee. Licensee
shall not commence construction of the License Area without first obtaining Licensor's approval of the
location and design,nor prior to the execution of this License. Design criteria for the construction of the
License Area are:
a. The kiosk/pushcart structure shall be limited to counter units with no overhead
obstructions that inhibit the visibility of tenants, licensees or other occupants in the
Shopping Center. Counter units shall not exceed 48"in height.
b. The kiosk/pushcart structure,if located in an open floor area,shall not be anchored into
the floor or other part of the Shopping Center structure. An area width of no less than
twelve feet (12'0") minimum shall be maintained on all sides of the kiosk/pushcart
subject to traffic flow.
C. Water service and special HVAC Systems are not available. Heating,venting,and Fire
Protection Systems shall be that which is provided to common areas in the Shopping
Center.
d. Design criteria for all signs to be utilized at the License Area, kiosk/pushcart size,
construction, finish materials, and special equipment shall be evaluated specifically for
each individual licensee. Licensee shall submit plans for Licensor's review and
approval prior to construction and shall include pictures of any existing units of
Licensee's.
e. Licensee shall prepare its plans and perform all work to comply with all applicable
governing statutes,ordinances,regulations,codes,and insurance rating boards,and shall
apply for all necessary permits. Licensor's approval of Licensee's plans shall not
relieve Licensee of its obligation to complete the development in accordance with this
License,nor does it relieve Licensee from complying with laws,rules,regulations,and
requirements of local governing authorities. Certificates of occupancy and waivers of
lien from Licensee's contractor,all subcontractors and material men shall be filed with
Licensor upon completion of work.
f. Set up and tear down of kiosks/pushcarts shall take place when the Shopping
Center is not open for business,unless Licensor has agreed otherwise in writing.
For in-line space,set up may take place during mall hours,as long as it does not
interfere in any manner,including noise or dust,with mall business and the comfort
of the patrons. A black drape or equivalent, provided by Licensee, must be
covering the entire storefront,as to keep the interior design concealed until ready
for business.
25. Permits•If there are any licenses,authorizations,or permits required by any governmental agency
or authority for the type of activity to be carried on at or for the use of the License Area,Licensee shall be
4
responsible for obtaining such. No unlawful activities shall be permitted in the use of the License Area.
The consumption or sale of alcoholic beverages on or from the License Area shall not be permitted.
26. Visual Merchandising: Licensee shall comply with the visual merchandising standards of
Licensor. Licensee understands and agrees to implement visual merchandising recommendations of
Licensor and change visual merchandising presentation as requested by Licensor.
27. Operating Requirements,Licensee shall observe all Operating Rules for the Shopping Center
and Licensee's occupancy therein which Licensor may promulgate from time to time,including but not
limited to:
a. Licensee shall use and occupy the License Area in a careful,safe and proper
manner and shall keep the License Area in a clean and safe condition in accordance
with this License,local ordinances,and the directions of public officers.
b. All signage located in and upon the License Area shall be approved by
Licensor prior to installation or placement. All signs,placards,banners,pennants,
or other advertising matter shall be prepared in a professional manner and in no
event shall be handwritten. Licensee shall display an approved sign depicting its
approved trade name.
Sign Criteria: Signs are to be furnished and installed by Licensee and
approved by an agent foi Licensor. Licensee's sign contractor
or architect must submit a black and white rendering(specifying
PMS colors) of Licensee's sign prior to approval. Licensee's
sign shall be located within the limits of Licensee's storefront
and shall not project more than 8" beyond the storefront if the
Shopping Center is an enclosed mall, and not more than 12"
beyond the storefront if the Shopping Center is a strip center.
Sign Size:
Malls:
Up to 30'storefront: Capitals 18"
Lower Case 12"
30'-1"and greater: Capitals 24"
Strip Centers: Lower Case 18"
Up to 30'storefront: Capitals 24"
Lower Case 18"
30-1"and greater. Capitals 30"
Lower Case 24"
The length of Licensee's sign shall be limited to 70% of Licensee's
storefront.
C. Licensee shall not display merchandise on or outside the boundaries of the
kiosk/pushcart structure. The outside areas immediately adjoining the License Area
shall be kept clear at all times by Licensee,and Licensee shall not place nor permit
any obstructions,garbage,refuse,merchandise,or displays,or racks,in such areas.
d. All loading and unloading of goods shall be done only at such times,in the
areas,and through the entrances designated for that purpose by Licensor.
e. All garbage and refuse shall be kept in the kind of container specified by
Licensor,and shall be placed and prepared for collection in the manner and at the
times and places specified by Licensor. If Licensor shall provide or designate a
service for picking up refuse and garbage,Licensee shall use same at Licensee's
cost. Licensee shall pay the cost of removal of any of Licensee's refuse and
garbage,and maintain all common loading areas in a clean manner satisfactory to
the Licensor. Licensee shall use any trash compactor Licensor provides for the
general use of Licensee or licensees in a designated area of the Shopping Center.
Notwithstanding the foregoing provision,if Licensee qualifies as a generator of
medical waste, then Licensee shall be solely responsible for causing compliance
with all federal, state and local laws, whether existing now or established in the
future, relating in any way to the storage, containment, treatment, transfer,
transportation and disposal of medical waste(including the use of licensed medical
waste management companies),and shall hold Licensor harmless for Licensee's
noncompliance or violations thereof. For purposes hereof,"medical waste"means
any solid,semisolid or liquid waste,which is generated in the diagnosis,treatment
(e.g.,provisions of medical services)or immunization of human beings or animals,
in research pertaining thereto, or in the production or testing of biologicals.
"Generator" means any person or entity whose act or process produces medical
waste as hexeinbefore defined.
5
f. No loudspeakers, televisions,phonographs,cd players,DVD players,cassette
players,radios,flashing lights,or other devices shall be used in a manner so as to be
heard or seen outside of the License Area. No electronic or communication devices
shall be used in the License Area or in connection therewith which interrupt or
interfere with the use and enjoyment of electronic or communication devices of
other occupants of the Shopping Center or of the neighborhood in which the
Shopping Center is located.
i
g. Licensee shall not conduct or permit any fire, bankruptcy, relocation,
liquidation,retirement,moving,auction,or"going out of business" sale(whether
real or fictitious)in the License Area,or utilize any unethical method of business
operation. Licensee shall not use the License Area as a clearance, outlet or
wholesale center.
It. Licensee shall not carry on any trade or occupation or operate any instrument
or equipment, which emits an odor or causes a noise discernible outside of the
License Area.
I. Licensee shall not distribute any handbills or other advertising matter in the
Shopping Center or on automobiles parked in the parking areas of the Shopping
Center.
j. Licensee and Licensee's employees shall not park their cars in those portions
of the parking area designated for customer parking by Licensor. If Licensee or
Licensee's employees'park in portions of the parking area designated for customer
parking,Licensor may,in addition to its other remedies,have such cars removed at
Licensee's expense.
k. Licensee and Licensee's employees shall maintain a neat and appropriate
appearance and dress,and are expected to operate in a dignified,ethical,manner.
1. Licensee shall display its customer sales return policy.
M. Licensee shall not permit loitering at the License Area.
n. Licensee shall furnish Licensor with emergency telephone numbers and a
forwarding address.
o. Due to the lack of on-site storage facilities,acquisition of outside storage shall
be Licensee's responsibility.
P. Licensee shall be solely responsible for policing its location against theft,loss,
or damage to its kiosk/pushcart and/or merchandise. Under no circumstance shall
Licensor be held liable for such theft,loss,or damage.
28. Conduct- Licensee shall at all times during its occupancy of the License Area
provide sufficient supervision and maintain adequate control of its employees,guests,and invitees.
29. Removal Licensee shall at the Expiration Date or earlier revocation of this
License remove its goods and effects,repair any damage caused by such removal,and peaceably yield up
the License Area dean and in good order, repair, and condition. Personal property of Licensee not
removed within two(2)days of such Expiration Date or earlier revocation shall become the property of
Licensor,at Licensor's option without liability to Licensee therefore.
30. Conduct and Alterations, Licensee shall not harm the License Area, commit waste,
create nuisance,make any use of the License Area which is offensive in Licensor's sole opinion,nor do
any act tending to injure the reputation of the Shopping Center. Licensee shall not make alterations or
additions to the License Area,nor permit the making of holes in the walls,partitions,ceilings,or floors,nor
Permit the painting or placing of exterior signs,placards,or other advertising media,banners,pennants,
awnings, aerials, antennas, or the like in or on the License Area,without the prior written consent of
Licensor which may be withheld in Licensee's sole discretion. Licensee shall comply with all laws,
ordinances,orders,and regulations affecting the use or occupancy of the License Area.Licensee shall not
violate applicable federal and state laws prohibiting the sale or display of products,which infringe on the
trademarks or copyrights of others.
31. Condition of Licenge Area, Licensee has inspected the License Area,and accepts it"as
is" with no representation or warranty by Licensor regarding the condition of the License Area or its
suitability for Licensee's use or occupation thereof. Licensor has no obligation to repair the License Area
unless the obligation is set forth in this License.
32. Hours of Operation: The License Area shall remain open for business at all times
designated by Licensor. Licensee shall operate in the entire License Area continuously and
uninterruptedly while this License is in effect,and in a first class manner.
6
33. Hazardous Material: Licensee shall not cause or permit any hazardous material to be
brought upon,stored,kept,used,or discharged on or about the License Area.
34. Access to License Area: Licensor may enter the License Area at any time.
35. Condition of License Area, Licensee shall maintain, at its sole cost and expense, the
License Area in good condition and make all necessary replacements and repairs to the License Area except
for structural repairs. In addition to all other remedies of Licensor,if Licensee does not complete its
obligations to repair and maintain the License Area,of if Licensor,in the exercise of its sole discretion,
determines that emergency repairs are necessary,or repairs or replacement of any portion of the License
Area or the Shopping Center are made necessary by any act,omission,or negligence of Licensee or its
agents, employees, contractors,or assignees, then in any such event, Licensor may make such repairs,
maintenance, or replacements without liability to Licensee for any loss or damage that may accrue to
Licensee,its merchandise,fixtures,or other property,or to Licensee's business by reason of such repair,
maintenance,or replacement. Upon completion of any such repair,maintenance,or replacement Licensee
shall pay upon demand, as additional fees, Licensoe's costs for making such repairs, maintenance, or
replacements together with Licensor's administrative costs related thereto which amount shall equal 1.5
times the total cost of the repair,maintenance,or replacement. Furthermore,Licensee shall immediately
notify Licensor of any defects or unsafe conditions in the common areas immediately adjacent to the
License Area.
-36
eensee aed its Agem�-ym}empl
or dlia Teetxse-�cgreernen�itieluel}r �, ten;'
e(jaditialls herein.
maer�£payrn
IN WITNESS WHEREOF,the parties have executed this Agreement on the day and year first above
written,each acknowledging receipt of an executed copy hereof.
LICENSOR:
Parkdale Mall Asso iates by CBL A55ociates
Management,Inc. ma— n 'ac�aZing Z
hy:
Print Name, Kurt Lundueen
Its:Authorized Signatory
Date:
LICENSEE:
C4 of B a lmont
7474-W
By:
Print Name, Kvle HaM
Its:
Date:
City of Beaumont
Police Substation
BIYLDINp
C d
t:
R
B NP ,9! r
' �ITI Y3 RY pa
. 4 r
►;�1
i
a�
i
i
City of Beaumont
Council Agenda Item
TO: City Council
FROM: Kyle Hayes, City Manager
PREPARED BY: Joris P. Colbert, City Engineer
MEETING DATE: March 30, 2004
AGENDA MEMO DATE: March 23, 2004
REQUESTED ACTION: Council consider a resolution authorizing the conveyance of a forty
foot (40') drainage easement located off Lawrence Drive and US
96, 69, 287 to Drainage District #6.
RECOMMENDATION
Administration recommends the conveyance of the easement to Drainage District #6.
BACKGROUND
Drainage District#6 has requested a drainage easement at Lawrence Drive and US 96, 69, 287
(in Suburban Acres Addition) be conveyed to them. The ditch, located in Lots 1 and 2, Block 1,
Unit One, Suburban Acres, has been maintained by the District for some time, and it is in need
of repair. The District would like to concrete this section of the ditch which is located on the
south side of Lawrence Drive and across the street from a forty foot (40') drainage easement
conveyed previously to Drainage District No. 6.
BUDGETARY IMPACT
None.
PREVIOUS ACTION
A forty foot (40') drainage easement located on the north side of Lawrence Drive and adjacent
to the concrete parking lot of Welch's Stone Company was conveyed to Drainage District No. 6
on March 16, 2004 [Res. No. 04-050].
SUBSEQUENT ACTION
None.
RECOMMENDED BY
City Manager, Public Works Director and City Engineer.
Engdd6 lawrence-south-esmt-ib.wpd
22 March 2004
SUBJECT
40' DRAINAGE EASEMENT
HDDEH
BEND
LOTS 1 AND Z, BLOCK 1, cum
UNIT ONE SUBURBAN ACRES $° JODY °
U �
R
3 I ` A - FALCON --
tLAWRENCE DRIVE AND °6 a s
U.S. 66, 66, 287) S"" UK
JAPONICA OR
KWh
P.k
PALAE"O DFL
OWNER: DPL
CITY OF BEAUMONT MR BIRCH '`
FN THORN
LOCATION MAP
LEGEND N.T.S.
® SUBJECT PROPERTY
t
crw
v �
o
N_
N
Opp
W
U
3 272.W #
5
0
'w
a
m
3
m
W
N.T.S.
U
c
C. City of Beaumont
�• Council Agenda Item
TO: City Council
FROM: Kyle Hayes, City Manager
PREPARED BY: Kandy Daniel, Treasurer
MEETING DATE: March 30, 2004
AGENDA MEMO DATE: March 23, 2004
REQUESTED ACTION: Council consider a resolution to allow Hibernia National Bank to
release the following security as collateral for City accounts which is held at the Federal Reserve
Bank, effective March 24, 2004.
Cusip No. Description Face Value Market Value
PLEDGE:
31359MEX7 FNMA, 6.50 1/o, Due 08/15/04 $ 1,000,000.00 $1,025,312.50
RECOMMENDATION
The administration requests approval of a resolution to release the above listed security covering City
deposits at Hibernia National Bank.
BACKGROUND
The City of Beaumont maintained uncollected ledger balances at Hibernia National Bank in the
amount of$2,207,296.07 on March 22, 2004. After releasing the above security,the market value
of pledged collateral totals$5,428,544.93 and along with FDIC coverage is sufficient to collateralize
current deposits as well as any deposits anticipated in the near future.
BUDGETARY IMPACT
None.
PREVIOUS ACTION
Council approved a pledge of collateral by Hibernia National Bank on January 27, 2004.
SUBSEQUENT ACTION
Subsequent Council action will be requested to pledge or release additional collateral when
appropriate.
RECOMMENDED BY
Finance Officer and Treasurer.
D
VOW City of Beaumont
VW_.
Council Agenda Item
'M TO: City Council
FROM: Kyle Hayes, City Manager
PREPARED BY: Kirby Richard, Central Services Director
MEETING DATE: March 30, 2004
AGENDA MEMO DATE: March 25, 2004
REQUESTED ACTION: Council consider authorizing the City Manager to execute the
renewal of a lease agreement with the State of Texas for coastal
public lands.
RECOMMENDATION
Administration recommends authorizing the City Manager to execute the renewal of a lease
agreement with The State of Texas General Land office for coastal public lands located on the
Neches River at Riverfront Park.
BACKGROUND
The proposed lease agreement,as provided in its substantial form,is the renewal of an existing lease
originally commencing on April 18, 1989. The lease is for the 6,800 square foot public pier and
boardwalk constructed in the Neches River during the second phase of Riverfront Park. State law
ordains that inland public waterways are owned by the State and requires lease agreements for its
use.
The proposed lease agreement remains unchanged from the prior agreement,with the exception of
the application fee. The $25 application fee has now been increased to $50.
The term of the lease is for five (5) years commencing on April 18, 2004 and ending on April 17,
2009. As consideration for granting this lease,the State requires a one-time$50 application fee. No
other consideration is required.
Lease Agreement with The State of Texas
March 25, 2004
Page 2
BUDGETARYIMPACT
The $50 application fee will be paid from the Parks and Property Services Division's operating
budget.
PREVIOUS ACTION
None.
SUBSEQUENT ACTION
None.
RECOMMENDED BY
City Manager and Central Services Director.
C:�Ornmvvb and S06.,WrevdaNly Dawmmut\WPDOCSTeaue\Slvle ofTX-Riverfiov[Pk.DOCkVtive .[P.Ak 003 LeaseWge Iremrenew 1..20114 d
The State of Texas
M a
'P q
t
• NSrAre
Austin,Texas
RENEWAL OF
COASTAL LEASE NO. CL880016
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF JEFFERSON §
This Coastal Lease No. CL880016 (the "Agreement") is issued by virtue of the authority granted in Chapter 33, TEX.
NAT. RES. CODE ANN. and Title 31, TEX.ADMIN. CODE, Chapter 155 and all amendments thereto, and all other
applicable statutes and rules,as the same may be promulgated and/or amended from time to time.
ARTICLE 1. PARTIES
1.01. In consideration of the mutual covenants and agreements set forth herein, the STATE OF TEXAS, acting by
and through the School Land Board and its Chairman, the Commissioner of the General Land Office (the "State"),
hereby authorizes the City Of Beaumont(the"Lessee")whose address is PO Box 3827, Beaumont, TX 77704-3827, to
use the"Premises"(defined below)for the purposes identified in Article V below.
ARTICLE 11. PREMISES
2.01. The coastal public land Lessee may use is described as follows:
A 4.154 acre portion of Tract 2, and a 1.125 acre portion of Tract 3, out of the Noah Tevis
Survey, Abstract 52, Jefferson County Records, Jefferson County, Texas (the "Premises"). The
Premises are further described and depicted on Exhibits A, B, and C attached hereto and
incorporated herein by reference.
2.02. Lessee acknowledges and agrees that when any authorized improvements are placed on the Premises, the
location of such improvements shall thereby become fixed at such location and shall not be changed except by a
written amendment to this Agreement.
2.03. LESSEE HAS INSPECTED THE PHYSICAL AND TOPOGRAPHIC CONDITION OF THE PREMISES AND ACCEPTS
THE SAME "AS IS", IN ITS EXISTING PHYSICAL AND TOPOGRAPHIC CONDITION. THE STATE DISCLAIMS ANY AND
ALL WARRANTIES OF HABITABILITY, MERCHANTABILITY, SUITABILITY, FITNESS FOR ANY PURPOSE, AND ANY
OTHER WARRANTY WHATSOEVER NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. THE STATE AND LESSEE
HEREBY ACKNOWLEDGE AND AGREE THAT USE OF THE TERM "GRANT" IN NO WAY IMPLIES THAT THIS
AGREEMENT IS FREE OF LIENS, ENCUMBRANCES AND/OR PRIOR RIGHTS. NOTICE IS HEREBY GIVEN TO LESSEE
THAT ANY PRIOR GRANT AND/OR ENCUMBRANCE MAY BE OF RECORD AND LESSEE IS ADVISED TO EXAMINE THE
RECORDS IN THE ARCHIVES AND RECORDS DIVISION OF THE GENERAL LAND OFFICE, 1700 NORTH CONGRESS
AVENUE,AUSTIN, TEXAS 78701-1495,AND ALL RECORDS OF THE COUNTY IN WHICH THE PREMISES ARE LOCATED.
LESSEE IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF THE STATE REGARDING ANY ASPECT OF
THE PREMISES,BUT IS RELYING ON LESSEE'S OWN INSPECTION OF THE PREMISES.
t
CL880016 j renewcl.doc V 2.0
jcrow
ARTICLE III. TERM
3.01. This Agreement is for a period of five (5) years, beginning on April 18, 2004, and ending on April 17, 2009,
unless renewed or terminated as provided herein.
ARTICLE IV. CONSIDERATION AND TAXES
4.01. As consideration (the "Consideration") for the right to use the Premises, Lessee agrees to pay the State the sum
of Fifty and 00/100 Dollars($50.00)as an application fee.No other consideration is required.
4.02. In addition to the above, Lessee shall pay and discharge any and all taxes, general and special assessments, and
other charges which during the term of this Agreement may be levied on or assessed against the Premises or any
improvements constructed or installed thereon(the"Taxes"). Lessee shall pay such Taxes at least five(5)days prior to
the date of delinquency directly to the authority, official or entity charged with collection. Lessee may, in good faith
and at its sole cost and expense, contest any Tax and shall be obligated to pay the contested amount only if and when
finally determined to be owed.
ARTICLE V. USE OF THE PREMISES
5.01. A. In connection with Lessee's use of the Premises, Lessee may construct and/or maintain the following
improvements: a public wood piling pier consisting of a 6' X 10' walkway, a 12' X 380' boardwalk, a 237 square foot
triangular deck,and a 6'X 8' stairway comprising a total encumbrance of 4,905 square feet; and 8' X 260' and 8'X 590'
areas of ripap encumbering an additional 6,800 square feet, for a total project encumbrance of 11,705 square feet of
coastal public land, as depicted on Exhibit C attached hereto and incorporated herein by reference (the
"Improvements"). Lessee shall not use the Premises for any other purpose without prior written consent from the State,
which consent may be granted or withheld in the State's sole discretion. Lessee is specifically prohibited from using or
permitting the use of the Premises for any commercial or illegal purpose. Provided the State does not unreasonably
interfere with Lessee's use of the Premises, the State may use or permit the use of the Premises for any purpose
consistent with Lessee's use of the Premises.
B. Lessee shall comply, and cause its officers, employees, agents, representatives, contractors and invitees to
comply, with applicable laws, ordinances, rules and regulations of all governing authorities with jurisdiction over the
Premises. Lessee is specifically notified of its need to comply with laws and regulations enacted for the purpose of
protecting and preserving public lands and waters.
C. Lessee shall permit the State's agents, representatives, and employees to enter into and on the leased
premises at all reasonable times for the purpose of inspection and any other reasonable purpose necessary to protect the
State's interest in the leased Premises.
D. Lessee may not charge any holder of a valid mineral lease or other grant of interest from the State for
surface damages for the use of the leased Premises. All such damage payments shall be made directly to the State.
Lessee, however, may seek compensation for damages to personal property in an action against the holder of a valid
mineral lease or other grant-of-interest issued by the State. This damage limitation in no way limits the liability of
third parties in an action at law for damages inflicted upon Lessee by acts of negligence.
E. Except as otherwise provided herein, Lessee shall have the right to file a criminal complaint or institute
civil proceedings to protect Lessee's right of possession and leasehold interest in the leased Premises.
F. Lessee shall use the highest degree of care and all appropriate safeguards to prevent pollution of air, ground
and water in and around the Premises, and to protect and preserve natural resources and wildlife habitat. In the event
of pollution of or damage to natural resources in or around the Premises which is the result of an act or omission of
Lessee, its officers,employees,agents,representatives,contractors,and/or invitees, Lessee shall immediately notify the
t
CL880016 2 renewd.doc V 2.0
jcrow
State and undertake all required and appropriate action to remedy the same. Lessee shall be liable for all damages
and/or mitigation to the Premises and public lands and waters as a result of such act or omission.
G. LESSEE IS EXPRESSLY PLACED ON NOTICE OF THE NATIONAL HISTORICAL PRESERVATION ACT OF 1966,
(PB-89-66, 80 STATUTE 915; §470) AND THE ANTIQUITIES CODE OF TEXAS, CHAPTER 191, TEX. NAT. RES. CODE ANN.
AND ALL AMENDMENTS THERETO. IN THE EVENT THAT ANY SITE, OBJECT, LOCATION, ARTIFACT OR OTHER
FEATURE OF ARCHEOLOGICAL,SCIENTIFIC,EDUCATIONAL,CULTURAL OR HISTORIC INTEREST IS ENCOUNTERED
DURING THE ACTIVITIES AUTHORIZED BY THIS AGREEMENT, LESSEE WILL IMMEDIATELY CEASE SUCH
ACTIVITIES AND WILL IMMEDIATELY NOTIFY THE STATE AND THE TEXAS HISTORICAL COMMISSION, P.O. BOX
12276, AUSTIN, TEXAS 78711, SO THAT ADEQUATE MEASURES MAY BE UNDERTAKEN TO PROTECT OR RECOVER
SUCH DISCOVERIES OR FINDINGS,AS APPROPRIATE.
5.02. A. Lessee's use of the Premises is subject to compliance with the following covenants, obligations and
conditions(the"Special Conditions"):
1. Rip-rap shall consist of approved material such as concrete block, interlocking brick, sack crete,
rock large enough not to be displaced by storms, or concrete rubble which is free of protruding
rebar. The use of tires, automobile bodies or parts, appliances, trash, debris, asphalt, tree limbs,
and other unconsolidated material is not acceptable and shall not be used.
B. Prior to undertaking construction or installation of Improvements on the Premises, Lessee shall provide
written notice of the terms of this Agreement, including the Special Conditions, to each person or entity authorized by
Lessee to perform any such activity on its behalf. Lessee shall retain a copy of each such written notice provided to its
agents, representatives, employees, and/or contractors under this provision and, if a dispute arises concerning
construction or installation of the Improvements, Lessee shall provide the State with a copy of all applicable notices
within ten(10)days of the State's written request. Lessee's failure to maintain and provide each required written notice
shall constitute a default under this Agreement.
5.03. If Lessee fails to maintain and/or repair Improvements in good condition and repair, such failure shall constitute
a default under this Agreement and the State may,at its option,terminate this Agreement upon written notice to Lessee
or pursue a remedy under Section 51.3021, TEX. NAT. RES. CODE ANN. and all amendments thereto. If Lessee
constructs improvements other than those authorized in Article V, such improvements shall constitute illegal structures
and the State may, at its option, terminate this Agreement or pursue a remedy under Section 51.302, et seq., TEX.
NAT.RES. CODE ANN. and all amendments thereto.
ARTICLE VI. ASSIGNMENTS AND SUBLEASES
6.01. LESSEE SHALL NOT ASSIGN THIS AGREEMENT OR THE RIGHTS GRANTED HEREIN, OR SUBLEASE ANY
PORTION OF THE PREMISES, IN WHOLE OR PART, TO ANY THIRD PARTY FOR ANY PURPOSE WITHOUT THE PRIOR
WRITTEN CONSENT OF THE STATE, WHICH MAY BE GRANTED OR WITHHELD IN THE STATE'S SOLE DISCRETION.
ANY UNAUTHORIZED ASSIGNMENT OR SUBLEASE SHALL BE VOID AND OF NO EFFECT,AND SUCH ASSIGNMENT OR
SUBLEASE SHALL NOT RELIEVE LESSEE OF LIABILITY UNDER THIS AGREEMENT.
ARTICLE VIL INDEMNITY
7.01. TO THE EXTENT ALLOWED BY LAW, LESSEE AGREES TO INDEMNIFY AND HOLD THE STATE, ITS
SUCCESSORS, ASSIGNS, OFFICERS, AGENTS, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES (THE
"INDEMNIFIED PARTIES") HARMLESS FROM AND AGAINST ALL CLAIMS, PROCEEDINGS, ACTIONS, DAMAGES,
JUDGMENTS, LIABILITIES, AWARDS AND EXPENSES WHATSOEVER, INCLUDING STRICT LIABILITY CLAIMS (THE
"CLAIMS")WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF OR THE NEGLIGENCE OF
THE INDEMNIFIED PARTIES, THAT MAY BE BROUGHT, INSTITUTED OR AWARDED ON ACCOUNT OF OR GROWING
OUT OF ANY AND ALL INJURIES OR DAMAGES, INCLUDING DEATH, TO PERSONS OR PROPERTY RELATING TO OR
RESULTING FROM,DIRECTLY OR INDIRECTLY:(n ANY OCCURRENCE IN,UPON,AT OR FROM THE PREMISES OR ANY
CL880016 3 renewd.doc V 2.0
jcrow
PART THEREOF,OR(II)THE USE OR OCCUPANCY OF THE PREMISES OR ANY PART THEREOF,TOGETHER WITH ANY
AND ALL LOSSES THERETO, INCLUDING, WITHOUT LIMITATION, ALL COSTS OF DEFENDING AGAINST,
INVESTIGATING AND SETTLING THE CLAIMS. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO THAT
THE INDEMNITY PROVIDED FOR IN THIS SECTION 7.01 IS AN INDEMNITY BY LESSEE TO INDEMNIFY AND PROTECT
THE INDEMNIFIED PARTIES FROM THE CONSEQUENCES OF THE INDEMNIFIED PARTIES' OWN NEGLIGENCE WHERE
THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE CLAIM. THIS INDEMNITY SHALL HAVE NO APPLICATION TO
ANY CLAIM WHERE THE CLAIM RESULTS FROM THE SOLE NEGLIGENCE OF THE STATE. LESSEE'S OBLIGATION OF
INDEMNITY SET FORTH HEREIN SHALL SURVIVE EXPIRATION OF THIS AGREEMENT.
ARTICLE VIII. DEFAULT, TERMINATION AND EXPIRATION
8.01. If Lessee fails or refuses to remedy a default under this Agreement within thirty(30) days of the State's written
notice specifying such default, the State may terminate this Agreement by sending written notice of termination to
Lessee in accordance with Article IX. Upon the effective date of such notice, this Agreement shall terminate and
neither party shall have any further rights or obligations except for those accruing prior to the effective date of
termination and/or those which specifically survive termination of this Agreement.
8.02. Unless waived in writing by the State prior to termination of this Agreement, Lessee shall, within one hundred
twenty (120) days from the termination date, remove all personal property, structures and improvements (including,
without limitation, the Improvements) from the Premises and restore the Premises (and all other property affected by
Lessee's removal activities) to the same condition that existed prior to the placement, construction, or installation
thereof on the Premises. Lessee's activities shall be conducted in accordance with General Land Office guidelines in
effect at the time of such activity, including, without limitation, specific techniques required for protection of natural
resources and mitigation, or payment in lieu of mitigation, for damages resulting from removal activity. Upon such
termination Lessee shall notify the State in writing within ten(10) days following completion of Lessee's removal and
restoration activity. Lessee's obligations to perform or undertake any specific activity under this Agreement, including
the foregoing removal provision, shall survive termination of this Agreement.
ARTICLE IX. NOTICE AND INFORMATION REQUIREMENTS
9.01. A. Any notice given under the terms of this Agreement shall be in writing and either delivered by hand, by
facsimile or sent by United States first class mail, adequate postage prepaid, if for the State, to Deputy Commissioner,
Asset Inspection, 1700 North Congress Avenue, Austin, Texas 78701-1495, and if for Lessee, to City Of Beaumont,
PO Box 3827, Beaumont, TX 77704-3827. Any party's address may be changed from time to time by such party by
giving notice as provided above, except that the Premises may not be used by Lessee as the sole notice address. No
change of address of either party shall be binding on the other party until notice of such change of address is given as
herein provided.
B. For purposes of the calculation of various time periods referred to in this Agreement, notice delivered by
hand shall be deemed received when delivered to the place for giving notice to a party referred to above. Notice mailed
in the manner provided above shall be deemed completed upon the earlier to occur of(i) actual receipt as indicated on
the signed return receipt,or(ii)three(3)days after posting as herein provided.
9.02. Lessee shall provide written notice to the State of any change in Lessee address within ten(10)business days of
such change.
9.03. Lessee shall provide the State with information reasonably requested in writing within thirty (30) days of such
request.
ARTICLE X. MISCELLANEOUS PROVISIONS
10.01. Neither acceptance of Consideration or any other sum payable under this Agreement(or any portion thereof) by
the State,nor failure by the State to complain of any act or omission of Lessee, shall constitute a waiver by the State of
t
CL880016 4 renewd.doc V 2.0
jcrow
its rights under this Agreement. Waiver by the State of any covenant, duty or obligation of Lessee under this
Agreement shall be in writing and signed by a duly authorized representative of the State. Waiver by the State shall be
limited to the act or omission specified in writing and shall not constitute a waiver of any other covenant, duty or
obligation of Lessee under this Agreement,whether of the same or different subject matter.
10.02. All monetary obligations of the State and Lessee (including, without limitation, any monetary obligation for
damages for any breach of the respective covenants, duties or obligations of either party hereunder) are performable
exclusively in Austin, Travis County, Texas.
10.03. This instrument, including exhibits, constitutes the entire agreement between the State and Lessee and no prior
written or oral or contemporaneous oral promises,warranties or representations shall be binding. This Agreement shall
not be amended except by written instrument signed by the State and Lessee.
t
CL880016 5 renewd.doc V 2.0
jcrow
IN TESTIMONY WHEREOF,witness my hand and the Seal of Office.
LESSOR: LESSEE:
THE STATE OF TEXAS City Of Beaumont
By: By.
JERRY E. PATTERSON (signature)
Commissioner, General Land Office
Chairman, School Land Board
(Printed Name)
Date:
(Title)
Date:
APPROVED:
Contents: _
Legal _
Deputy:
Executive:
CL880016
jcrow 6 renewcl.doc V 2.0
nrfWw
1
• �. �`�y ■■ �i ii�IR"� .{ 9e•GF:II! •1 +Y ::LSAr/:' �e�7e'Eil
�� i �1ao"yii�i°'�.r,�'-""��/! 'r'-� � I I�` per! aa�Rl�Ia�1r�E1•
amongl6L= } t f ►
caR .. .�
a9a ew OMAN
�� ■ tees,`�:■■ii_�If�w-ai�`��'IL�.`"": 'alsll� Jr'�� :'r�"'.__ .�•-- ��-'':f+ --s i°
{ � ���f, �■w w�ssi 56 5i90ri1p.l
1"
•. '-"'lift .�[ii�tJl! MEW{{hCs\ ''
IS
♦� fit�■aa�Iaaa■��■'Y1's�asy,i�9iyi,��� .'.�
10 4{�* ®■�� r�ii 'i.. .�'i" a'�°rte 1aa■r° pW4if%� —- i
• �iY ��N � Il� �r��4� �#+.�r� .11w.
'ljh.lf+�..` m�r,/-t•+1tr,�srt..•,�•r .r'' Orr . ..;M••�'4u, � .�
®� ■ '�� R � "M+P4 ''riii�_ � �f ■AEI- • ,•
�;� y�a ����lsww� y�*+ss�}i• � �� <4
r � !R! Yti�� �I� i�?■fifl����y+;y si+/a���ri�3ea`
All
1( erwrr 9 stiaRu at.s..�llssf�ef�sE■11ari �_y f;-0.malion1 2.9 �
�y
.uuwreYa4 i
{ IMMf■eY elf ew•�I er !se•fRYI■erreft• 9a . I:--j
�rerrw. 1�R■goo,
near" a�rarwes�•�w.-w ,ate.,
Ylrpe.1•ietYfY �.trYsea*
_ /rr:� I ���r�iM9%�irir�s�s °•�it _Y« i own
r� r
an 0
ar
Nmi lam` �.frrf■R�� �I t
■ sRew ♦rri.�
.± 9r�� 1.■wIr t9Rfif3 i9:neaes"'
r liwea>.Mt1-�1AlE�� t.
a !� ooiiar
val wntw..ee9.
Title: City of Beaumont CL880016 Date of Inspection: 1-23-04
Creator: Jeff la
Davis Exhibit A
� P
,
b �k ' � br, r s '�*l�i�.��yr°, � e� `a n. .:, / i ` ��.• ,F,����..� c'M�_
� F
. " *Rive front Park'
gr
Title: City of Beaumont CL880016 Date of Inspection: 1-23-04
� .p 2 e•, i
q
/J b-
f
6� 4
Creator: Exhibit
Neches River ...
Jefferson County "• ••
River Flow
Stairway Concrete steps/
(6 ft.X 8 ft.) Boardwalk Approximate State
(12 ft.X 380 ft.) Boundary ry Riprap
10 1 (8 ft.X 590 ft.) .8 ft.HWM (8 ft.X 260 ft.)
ti
-1.5 ft HWM
-2 ft HWM
Triangular deck -4 ft HWM +1 ft HWM I
(237 ft.) 14210 ft.(not to scale)!--44 ft.--► +3.5 ft.HWM i m
Walkway +4 ft.HWM
(6ft.X10ft.)
Natural shoreline/ t-----------------------------------494 ft.(not to scale)........... - m I
"""-'�Natural shoreline/ n
APP Boundary e State !Approximate State a I
Concrete bulkhead/ Boundary
Approximate State
Boundary
Riverfront Park
Title: City of Beaumont CL880016 Date of Inspection: 1-23-04
Company: Texas General Land Office Creator: Jeff Davis
Scale: 1 in. Equals 80 ft. EXHIBIT C