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HomeMy WebLinkAboutPACKET DEC 22 2009 RICH WITH OPPORTUNITY [I 11C A.11 1�1 U1 I I ( T • E - X - A - S REGULAR MEETING OF THE CITY COUNCIL COUNCIL CHAMBERS DECEMBER 22, 2009 1:30 P.M. CONSENT AGENDA * Approval of minutes * Confirmation of committee appointments David Mulcahy would be appointed to the Community Development Advisory Committee. The term would commence December 22, 2009 and expire December 21, 2011. (Councilmember W.L. Pate, Jr.) A) Approve a contract with Habitat for Humanity of Jefferson County related to the construction of two homes B) Approve the purchase of an excavator for use by the Water Utilities Department C) Authorize the acquisition of properties for the Concord Road Pavement Widening Project D) Authorize and ratify, in all things, the filing of a lawsuit against James Mathews, Jr., for the judicial review of the Opinion and Award of Don Hays, Independent Hearing Examiner in the matter styled In Re: City of Beaumont, Texas, and Local 399, AAA Case No. 70 390 00042 09, Disciplinary Appeal of James Mathews, Jr. E) Authorize the City Manager to execute an agreement with Burlington, Northern & Santa Fe Railroad, The Beaumont Independent School District and the City F) Authorize the acceptance of two (2) water line easements for Austin Middle School and Marshall Middle School G) Authorize the City Manager to renew an agreement for the use of the stables at Tyrrell Park H) Authorize the City Manager to execute all documents necessary to accept funding from the Department of State Health Services for the Sexually Transmitted Disease Syphilis Elimination Division I) Authorize the City Manager to execute all documents necessary to accept funding from the Department of State Health Services for the Tuberculosis Elimination Division J) Authorize the City Manager to execute a Crossing Agreement with BNSF Railway Company for the construction of the Calder Avenue Drainage Project (Phase I1) A RICH WITH OPPORTUNITY [117CA►[11�ICIIIT T • E • x • A • S City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager �S PREPARED BY: Chris Boone, Community Development Director MEETING DATE: December 22, 2009 REQUESTED ACTION: Council consider approving a contract with Habitat for Humanity of Jefferson County. RECOMMENDATION The Administration recommends approval. BACKGROUND Jehovah Jireh and Habitat for Humanity have partnered to provide affordable housing in the Jehovah Jireh Subdivision to both moderate and low income families. In order to create a mixed income development,Jehovah Jireh Community Development Corporation(JJV)donated two lots to Habitat that will be used to construct new homes under it's sweat-equity concept and sold to eligible low income families. The City provided assistance to JJV for it's development activities at Jehovah Jireh. Providing assistance to Habitat will positively affect the City's efforts to provide affordable housing to low income residents in non-impacted neighborhoods. This contract with the Habitat for Humanity of Jefferson County in the amount of$92,398 would be to assist with the construction of 2 new homes located in the Jehovah Jireh Subdivision that will be sold to eligible low/moderate income families BUDGETARY IMPACT Funding is available from 2007 ($77,200) and 2008 ($15,198) HOME funds. • ' • Habitat for Humanity® of 3efio-rson Countm Habitat for Humanity of Jefferson County Proposal to City of Beaumont—HOME Funds Introduction: Habitat for Humanity of Jefferson County has been building decent, affordable homes in Beaumont for over 30 years. Incorporated in October of 1978, this local Habitat affiliate has put 84 needy, lower-income Beaumont families into modest homes that provide the family a secure environment. (An additional 1 I families have been served in Port Arthur and Sabine Pass.) Habitat for Humanity's mission is to eliminate poverty housing and to help God's people live in decent homes. As a Christian based, ecumenical not for profit organization, we strive to fulfill our mission by building modest, affordable homes together with our motivated partner families, who must contribute 300 hours of"sweat equity" toward the building of theirs and their neighbors' homes. Habitat of Jefferson County HOME Funds proposal: Habitat of Jefferson County is seeking the City of Beaumont's support in several areas: 1. New house construction -- 2 houses, fall of 2009 2. Implementation of Neighborhood Revitalization program 1. Habitat for Humanity of Jefferson County will start their annual Apostles' Build in September 2009. Twelve area churches will come together to build one Habitat house for a needy family. Volunteer build days will be on consecutive Saturdays, running through the middle of December. In addition, Habitat would like to build two houses in the Jehovah Jireh neighborhood, where the Antioch Baptist Church has donated two lots to Habitat. For these three houses, Habitat would like to explore the use of homeowner down payment assistance grants from the City for these builds, and/or assistance with some of the soft costs associated with construction of the homes. 2. A more long-term program, the Neighborhood Revitalization project is something on which we would seek City cooperation: In a new direction for Habitat for Humanity, affiliates are being encouraged to develop projects that target neighborhoods where Habitat houses already exist and, in cooperation with City departments, undertake revitalization and weatherization programs in neighborhoods that are a priority for the City. Budget: Lot/Address Developers' Fee Development Costs Down a mt Asst. Jehovah Jireh 5,000 27,450 Up to 14,999 Jehovah Jireh 5,000 27,450 Up to 14,999 TOTAL 10,000 54,900 Up to 29,998 GRAND TOTAL: $94,898 Development Costs Breakdown: Surveys $ 675 Fees, inspections,permits $ 1,800 Clearing, site prep $ 3,200 Foundation $ 7,950 Plumbing Rough-in $ 1,500 Rough Carpentry(half) $ 6,750 Electrical (half) $ 2,725 Volunteer Benefits (lunches, water, etc.) $ 2,500 Soil Treatment $ 350 TOTAL $27,450 Total Development Costs Breakdown: Surveys $ 675 Fees, inspections, permits $ 1,800 Clearing, site prep $ 3,200 Foundation $ 7,950 Soil Treatment $ 350 Plumbing $ 6,950 Mechanical (HVAC) $ 4,200 Electrical $ 5,450 Flooring $ 2,350 Variable Costs $ 2,500 Appliances $ 1,300 Rough Carpentry $13,500 Interior Finish $ 7,975 Exterior Accessories $ 1,700 Siding $ 2,700 Volunteer benefits (lunches, water, etc) $ 2,500 Construction management $ 4,900 TOTAL $ 70,000 Match Funds: Meadows Foundation $60,000 (@ $30,000/house) Federal Home Loan Bank $20,000 (@ $10,000/house) Organizational Structure: Habitat of Jefferson County is locally operated and is run by a board of directors that includes a president, vice president, treasurer, secretary and ten directors. Each director serves a three year term. Officers are elected annually. The daily operations of the affiliate are managed by an Executive Director. Affiliate staff includes an Affiliate Supervisor, Bookkeeper, Volunteer / Development Coordinator, and construction staff (consisting of two managers and one support person). A volunteer Family Selection Committee works with the affiliate to assist in the selection of partner families to the program. Made up of citizens from the community, this committee works in pairs to conduct site visits with all applicant families to ascertain the level of need for housing. In the fall of 2009, two AmeriCorps National Direct members will join our staff in the positions of Construction Site Supervisor and Family Services Coordinator. These two positions are 11-month contracts and will be revolving, with new members serving each year. Habitat Selection Process: The successful applicant for a Habitat house meets three criteria: Need, ability to pay, and willingness to partner. Need is defined as a need for decent housing, in other words a lack of decent housing at time of application. The successful applicant is living in a dilapidated structure; or a home that is too small for the number of family members; or in a dangerous neighborhood that prevents the children from enjoying outdoor activities. The successful applicant may be affected by hurricanes Rita or Ike, and still living in a damaged home. Habitat partner families earn between 30% and 60% of area median income. They are able to pay a Habitat mortgage, but they are not able to afford a conventional mortgage or decent accommodations. Family income is calculated taking into consideration employment, SSI, child support, disability, etc. The successful applicant must have a steady income source, but does not need to be employed (can be on disability or SSI). Habitat, as a lending institution, cannot deny applicants on basis of age, sex, or race. Credit worthiness must be established according to the Equal Credit Act. All Habitat applicants complete a paper application packet, with the assistance of the Asset Building Case Management program of Catholic Charities of Southeast Texas. Once the application is completed and received by the local Habitat affiliate, the Family Selection Committee takes the applications and conducts site visits with all applicant families to assess need for housing and to verify information provided in the application form. The Family Selection Committee makes recommendations to the Habitat board of directors, who make final decisions on approval or denial of applicants. If an applicant is denied and disagrees with the decision, they are free to appeal the decision in writing directly to the board of directors. RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to execute an agreement with Habitat for Humanity of Jefferson County in the amount of $92,398 to assist with the construction of two (2) new homes located in the Jehovah Jireh Subdivision that will be sold to eligible low/moderate income families. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 22nd day of December, 2009. - Mayor Becky Ames - B RICH WITH oPPowr iwurY r T • E • x • A • s City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Laura Clark, Chief Financial Officer MEETING DATE: December 22, 2009 REQUESTED ACTION: Council consider approving the purchase of an excavator for use by the Water Utilities Department. RECOMMENDATION The administration recommends approval of the purchase from Waukesha-Pearce Industries Inc., of Houston in the amount of$85,866. BACKGROUND Pricing for the vehicles was obtained through the BuyBoard Cooperative Purchasing Program. Buyboard is a cooperative purchasing association which provides cities and political subdivisions with the means to purchase specialized equipment at volume prices. BuyBoard complies with the State of Texas procurement statutes. The purchase price of$85,866 includes the BuyBoard administrative fee of$400. The excavator will be used for underground pipe replacement operations and has lift capacity to handle shoring boxes and pipe bursting tools. The excavator will replace unit 5 14 1, a 2001 model excavator with 4,000 hours of service. The old unit will be disposed of according to the City's surplus equipment disposal policy. The basic warranty provided is two years or 3000 hours. Warranty service is available from Waukesha-Pearce of Port Arthur. Delivery is estimated at sixty (60) days. BUDGETARY IMPACT Funds are budgeted in the Water Fund. RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be, and he is hereby, authorized to approve the purchase of an excavator from Waukesha-Pearce Industries, Inc., of Houston, Texas, in the amount of $85,866 through the BuyBoard Cooperative Purchasing Program for use by the Water Utilities Department. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 22nd day of December, 2009. - Mayor Becky Ames - RICH WITH OPPORTUNITY C r T . E • X • A • S City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tom Warner, Director of Public Works MEETING DATE: December 22, 2009 REQUESTED ACTION: Council consider a resolution authorizing the acquisition of property. RECOMMENDATION The Administration recommends authorizing City Council approve a resolution for the acquisition of properties for the Concord Road Pavement Widening Project. BACKGROUND As part of the Concord Road Pavement Widening Project, approximately sixty-three (63) parcels of land from East Lucas to Highway 105 are being acquired. The owners of the properties listed below, have agreed to convey their property to the City: Parcel #9 0.0235 acre out of Lot 33, Tract 1, French Heights Addition (5095 Concord Road) Value: $39,000.00 Owner: Ann Marie Medina Parcel #10 0.0470 acre out of Lot 32, Tract 1, French Heights Addition (5165 Concord Road) Value: $5,200.00 Owners: Ann Marie Medina and Jason Medina Parcel #12 0.0261 acre out of NE 100'x100' Lot 31, French Heights Addition (5195 Concord Road) Value: $7,500.00 Owner: Ann Marie Medina Parcel #16 0.0256 acre out of pt Lots 30 and 31, French Heights Addition (5205 Concord Road) Value: $1,300.00 Owner: Ann Marie Medina Parcel #17 0.0467 acre out of Lot 1, Tract 1, French Heights Addition (5240 Concord Road) Value: $5,197.00 Owner: Ann Marie Medina BUDGETARYIMPACT Funds are available in the Capital Program. engmedina-ib.wpd 14 December 2009 May 2009 Parcel 9 Page 1 of 4 EXHIBIT County: Jefferson Highway: Concord Road Project Limits: East Lucas to US 96, 69, 287 PROPERTY DESCRIPTION FOR PARCEL 9 Being a 0.0235 acre (1,023 square feet) of land, situated in the A. Williams Survey, Abstract No. 385, out of and part of that certain called 1/2 acre tract of land having been conveyed to Ann Marie Medina from Michael Wirfs and Susan Wirfs by deed dated May 9, 2007 being recorded under Clerk's File No. 2007018237 of the Real Property Records of Jefferson County, Texas, said 0.0235 acre (1,023 square feet) of land being more particularly described as follows; COMMENCING at a 3/4" iron rod found for the most Westerly corner that certain called 1.00 acre tract of land having been conveyed to Laverne Russell from James F. Ainsworth, Jr. and wife, Debra Ainsworth by deed dated June 19, 1998 being recorded under Clerk's File No. 98-9822146 of the Real Property Records of Jefferson County, Texas; THENCE, NORTH 34°58'10" EAST along the Northwest line of the said 1.00 acre Russell tract and along the Southeast line of the said 1/2 acre Medina tract for a distance of 426.88 feet to a 5/8" iron rod with cap stamped "City of Beaumont ROW Monument" set for corner in the proposed Southwest right-of-way line of Concord Road, said corner being the POINT OF BEGINNING of the parcel herein described; 1) THENCE, NORTH 54°30'26" WEST, along the proposed Southwest right-of-way line of Concord Road for a distance of 98.04 feet to a 5/8" iron rod with cap stamped "City of Beaumont ROW Monument" set for corner in the proposed Southwest right- of-way line of Concord Road, said corner also being in the Southeast right-of-way line of Haden Road; 2) THENCE, NORTH 35°15'50" EAST, along the Southeast right-of-way line of Haden Road for a distance of 10.39 feet to a point for corner in the existing Southwesterly right-of-way line of Concord Road, said point being the most Northerly corner of the said 1/2 acre Medina tract, and from said point a 2" iron pipe bears SOUTH 35°1550" WEST a distance of 2.01 feet; 3) THENCE, SOUTH 54°33'44" EAST, along the existing Southwesterly right-of-way line of Concord Road for a distance of 97.99 feet to a point for corner, said point being the East corner of the said 1/2 acre Medina tract and the North corner of the said 1 .00 acre Russell tract; May 2009 Parcel 9 Page 2 of 4 EXHIBIT_ 4) THENCE, SOUTH 34 058'10" WEST, along the Southeast line of the said 1/2 acre Medina tract and along the Northwest line of the said 1.00 acre Russell tract for a distance of 10.48 feet to the POINT OF BEGINNING and containing 0.0235 acre (1,023 square feet) of land. A parcel plat of even date accompanies this property description. I, Mark W. Whiteley, Registered Professional Land Surveyor No. 3636, in the State of Texas, do hereby certify that the above field notes correctly reflect an actual survey made under my supervision and the limits, boundaries and corners are truly shown just as found at the time of the survey. Surveyed February 2009 a, 7 GIVEN UNDER MY HAND AND SEAL THIS THE ?'l DAY OF MAY 2009. Mark W. Whiteley, RPLS #3636 I LEGEND ■ SET 5/8" I. R. WITH CAP STAMPED " CITY ❑F BEAUMONT ROW MONUMENT" 0 TXD❑T CONTROL MONUMENT xx PARCEL NUMBER O FND PROPERTY CORNER AS NOTED ® POWER POLE PROPOSED ROW LINE P.0.B. EXISTING ROW LINE CONCORD ROAD PARCEL 9 PROPERTY LINE rL SURVEY LINE 9 --CALLED 1/2 ACRES COUNTY LINE j ANN MARIE MEDINA Q, / MAY 9, 2007 ¢o CF NO. 2007018237 Z 'L� OPRJC w 0 CALLED 1.00 ACRE LAVERNE RUSSELL / JUNE CF N0. 988-982218221 46 OPRJC A. WILLIAMS SURVEY ABSTRACT NO. 385 P.O.0 PARCEL 9 FND. 3/4'L ROD PARENT TRACT N.T.S. BEARINGS AND DISTANCES SHOWN ENCLOSED IN PARENTHESES ARE CALLED BEARINGS AND DISTANCES IN THE DESCRIPTION OF THE PARENT TRACT. SURVEYED FEBRUARY 2009 A PROPERTY DESCRIPTION OF EVEN DATE ACCOMPANIES THIS PARCEL PLAT. EXISTING TAKING REMAINING ` ACRES ACRES/(S.F.) ACRES PARCEL 9, 0. 50 0. 0235/(1023) 0. 4765 +MARKS . WHITELEY D ASSOCIATES INCORPORATED PARCEL PLAT TING ENGINEERS, S H OW I N O ORS, AND PLANNERS PARCEL 9 CONCORD ROAD JEFFERSON COUNTY P. 0. BOX 5492 3250 EASTEX FRWY. BEAUMONT, TEXAS 77726-5492 BEAUMONT, TEXAS 77703 MAY 2009 409-892-0421 (FAX) 409-892-1346 SCALE 1 = 50' SHEET 3 OF 4 May 2009 Parcel 10 Page 1 of 4 EXHIBIT County: Jefferson Highway: Concord Road Project Limits: East Lucas to US 96, 69, 287 PROPERTY DESCRIPTION FOR PARCEL 10 Being a 0.0470 acre (2,049 square feet) of land, situated in the A. Williams Survey, Abstract No. 385, out of and part of that certain called 1.098 acre tract of land having been conveyed to Ann Marie Medina and Jason Medina from Michael Wirfs and Susan Wirfs by deed dated February 8, 2007 being recorded under Clerk's File No. 2007005514 of the Real Property Records of Jefferson County, Texas, said 0.0470 acre (2,049 square feet) of land being more particularly described as follows; COMMENCING at a 1/2" iron rod found for the most Southerly corner that certain tract of land having been conveyed to Ann Marie Medina from Michael Wirfs and Susan Wirfs by deed dated February 8, 2007 being recorded under Clerk's File No. 2007005516 of the Real Property Records of Jefferson County, Texas, and in the Northwesterly line of the said 1.098 acre Medina tract; THENCE, NORTH 35°22'27" EAST along the Southeast line of the said Medina tract and along the Northwest line of the said 1.098 acre Medina tract for a distance of 92.52 feet to a 5/8" iron rod with cap stamped "City of Beaumont ROW Monument" set for corner in the proposed Southwest right-of-way line of Concord Road, said corner being the POINT OF BEGINNING of the parcel herein described; 1) THENCE, NORTH 35 022'27" EAST, continuing along the Southeast line of the said Medina tract and along the Northwest line of the said 1.098 acre Medina tract for a distance of 10.16 feet to a point for corner in the existing Southwest right-of-way line of Concord Road, and from said point a concrete monument with punch mark bears SOUTH 35°22'27"WEST a distance of 1.92 feet; 2) THENCE, SOUTH 54 033'44" EAST, along the existing Southwest right-of-way line of Concord Road for a distance of 199.80 feet to a point for corner in the Northwesterly right-of-way lien of Haden Road, said point being the most Easterly corner of the said 1.098 acre Medina tract, and from said point a 2" iron pipe bears SOUTH 36°04'46" WEST a distance of 2.22 feet; 3) THENCE, SOUTH 35°11'04" WEST, along the Northwest right-of-way line of Haden Road for a distance of 10.35 feet to a 5/8" iron rod with cap stamped "City of Beaumont ROW Monument" set for corner in the proposed Southwest right-of-way line of Concord Road; May 2009 Parcel 10 Page 2 of 4 EXHIBIT _ 4) THENCE, NORTH 54 030'26" WEST, along the proposed Southwesterly right-of-way line of Concord Road for a distance of 199.84 feet to the POINT OF BEGINNING and containing 0.0470 acre (2,049 square feet) of land. A parcel plat of even date accompanies this property description. I, Mark W. Whiteley, Registered Professional Land Surveyor No. 3636, in the State of Texas, do hereby certify that the above field notes correctly reflect an actual survey made under my supervision and the limits, boundaries and corners are truly shown just as found at the time of the survey. Surveyed February 2009 GIVEN UNDER MY HAND AND SEAL THIS THE DAY OF MAY 2009. Mark W. Whiteley, PLS #36 6 LEGEND ■ SET 5/8" I R. WITH CAP STAMPED "CITY OF BEAUMONT ROW MONUMENT" 0 TXD❑T CONTROL MONUMENT xx PARCEL NUMBER O FND PROPERTY CORNER AS NOTED PARENT TRACT POWER POLE N.T.S. PROPOSED ROW LINE EXISTING ROW LINE PROPERTY LINE CONCORD ROAD SURVEY LINE COUNTY LINE P.O.B. ]0 EiE ANN MARIE MEDINA PARCEL 10 ° FEBRUARY 8, 2007 CF NO. 2007005516 Q OPRJC CALLED 1.098 ACRES ° ANN MARIE MED110 P.O.0 PARCEL 10 & JASON MEDINA FEBRUARY 8, 2007 Z FND. 112" 1. ROD CF N0. 2007005514 o OPRJC BEARINGS AND DISTANCES SHOWN ENCLOSED IN PARENTHESES ARE CALLED BEARINGS AND DISTANCES IN THE DESCRIPTION OF THE PARENT TRACT. SURVEYED FEBRUARY 2009 A PROPERTY DESCRIPTION OF EVEN DATE ACCOMPANIES THIS PARCEL PLAT. EXISTING TAKING REMAINING ACRES ACRES/(S.F.) ACRES PARCEL 10, 1. 098 0, 0470/(2049) 1. 051 MARK W. WHITELEY AND ASSOCIATES INCORPORATED PARCEL PLAT CONSULTING ENGINEERS, SHOWING SURVEYORS, AND PLANNERS PARCEL 1 0 CONCORD ROAD JEFFERSON COUNTY P. 0. BOX 5492 3250 EASTEX FRWY. BEAUMONT, TEXAS 77726-5492 BEAUMONT, TEXAS 77703 SCALE 1 = 5 0' MAY 2009 409-B92-0421 (FAX) 409-892-1346 SHEET 3 OF 4 May 2009 Parcel 12 Page 1 of 4 EXHIBIT County: Jefferson Highway: Concord Road Project Limits: East Lucas to US 96, 69, 287 PROPERTY DESCRIPTION FOR PARCEL 12 Being a 0.0261 acre (1,135 square feet) of land, situated in the A. Williams Survey, Abstract No. 385, out of and part of that certain tract of land having been conveyed to Ann Marie Medina from Michael Wirfs and Susan Wirfs by deed dated February 8, 2007 being recorded under Clerk's File No. 2007005516 of the Real Property Records of Jefferson County, Texas, said 0.0261 acre (1,135 square feet) of land being more particularly described as follows; COMMENCING at a 1/2" iron rod found for the most Southerly corner of the said Medina tract and said point being in the Northwesterly line of that certain called 1.098 acre tract of land having been conveyed to Ann Marie Medina and Jason Medina from Michael Wirfs and Susan Wirfs by deed dated February 8, 2007 being recorded under Clerk's File No. 2007005514 of the Real Property Records of Jefferson County, Texas; THENCE, NORTH 35°22'27" EAST along the Southeast line of the said Medina tract and along the Northwest line of the said 1.098 acre Medina tract for a distance of 92.52 feet to a 5/8" iron rod with cap stamped "City of Beaumont ROW Monument" set for corner in the proposed Southwest right-of-way line of Concord Road, said corner being the POINT OF BEGINNING of the parcel herein described; 1) THENCE, NORTH 54 030'26" WEST, along the proposed Southwest right-of-way line of Concord Road for a distance of 117.41 feet to a 5/8" iron rod with cap stamped "City of Beaumont ROW Monument" set for corner in the Southeast right-of-way line of Allen Drive, said corner also being the beginning of a curve turning to the right having a radius of 20.00 feet and being subtended by a chord bearing NORTH 84 054'01" EAST having a chord length of 19.89 feet; 2) THENCE, SOUTHEASTERLY, along said curve for an arc length of 20.82 feet to a point for corner in the existing Southwest right-of-way line of Concord Road; 3) THENCE, SOUTH 54 033'44" EAST, along the existing Southwest right-of-way line of Concord Road for a distance of 100.23 feet to a point for corner, said point being the most Easterly corner of the said Medina tract and said point being the most Northerly corner of the said 1.098 acre Medina tract, and from said point a concrete monument with punch mark bears SOUTH 35°22'27" WEST a distance of 1.92 feet. May 2009 Parcel 12 Page 2 of 4 EXHIBIT 4) THENCE, SOUTH 35 022'27" WEST, along the Southeast line of the said Medina tract and along the Northwest line of the said 1.098 acre Medina tract for a distance of 10.16 feet to the POINT OF BEGINNING and containing 0.0261 acre (1,135 square feet) of land. A parcel plat of even date accompanies this property description. I, Mark W. Whiteley, Registered Professional Land Surveyor No. 3636, in the State of Texas, do hereby certify that the above field notes correctly reflect an actual survey made under my supervision and the limits, boundaries and corners are truly shown just as found at the time of the survey. Surveyed February 2009 g� GIVEN UNDER MY HAND AND SEAL THIS THE 2 l DAY OF MAY 2009. Mark W. Whiteley, RPLS #3636 LEGEND ■ SET 5/8" 1. R. WITH CAP STAMPED " CITY OF BEAUMONT ROW MONUMENT' TXDOT CONTROL MONUMENT xx PARCEL NUMBER O FND PROPERTY CORNER AS NOTED POWER POLE CONCORD ROAD PROPOSED ROW LINE EXISTING ROW LINE 12 P.O.B. ° PARCEL 12 PROPERTY LINE j z SURVEY LINE ! P.O.0 PARCEL 12 0 Q FND.1/2 1. ROD z COUNTY LINE ANN MARIE MEDINA FEBRUARY 8, 2007 CF NO. 2007005516 OPRJC CALLED 1.098 ACRES ANN MARIE MEDINA & JASON MEDINA FEBRUARY 8, 2007 A. WILLIAMS SURVEY CF. NO. 2007005514 OPRJC ABSTRACT NO. 385 PARENT TRACT N.T.S. BEARINGS AND DISTANCES SHOWN ENCLOSED IN PARENTHESES ARE CALLED BEARINGS AND DISTANCES IN THE DESCRIPTION OF THE PARENT TRACT. SURVEYED FEBRUARY 2009 A PROPERTY DESCRIPTION OF EVEN DATE ACCOMPANIES THIS PARCEL PLAT. EXISTING TAKING REMAINING ACRES ACRES/(S.F.) ACRES PARCEL 12, 0. 2735 0. 0261/(1, 135) 0. 2474 MARK W. WHITELEY AND ASSOCIATES INCORPORATED PARCEL PLAT CONSULTING ENGINEERS, SHOWING SURVEYORS, AND PLANNERS PARCEL 1 2 CONCORD ROAD JEFFERSON COUNTY P. 0. BOX 5492 3250 EASTEX FRWY. BEAUMONT, TEXAS 77725-5492 BEAUMONT, TEXAS 77703 409-892-0421 (FAX) 409-892-1346 SCALE 1 = 50' MAY 2009 SHEET 3 OF 4 April 2009 Parcel 16 Page 1 of 4 EXHIBIT County: Jefferson Highway: Concord Road Project Limits: East Lucas to US 96, 69, 287 PROPERTY DESCRIPTION FOR PARCEL 16 Being a 0.0256 acre (1,113 square feet) of land, situated in the A. Williams Survey, Abstract No. 385, out of and part of that certain tract of land having been conveyed to Ann Marie Medina from Michael Wirfs and Susan Wirfs by deed dated May 9, 2007 being recorded under Clerk's File No. 2007018235 of the Real Property Records of Jefferson County, Texas, said 0.0256 acre (1,113 square feet) of land being more particularly described as follows; COMMENCING at a 1/2" iron rod with cap found for the most Westerly corner of the said Medina tract and said point being in the Southeasterly line of that certain called 0.549 acre tract of land having been conveyed to James R. Callas from Larry Pedigo, Florence Boston, Lora Canter and Betty Mixson by deed dated November 22, 2004 being recorded under Clerk's File No. 2004045685 of the Real Property Records of Jefferson County, Texas; THENCE, NORTH 35°14'18" EAST along the Southeast line of the said 0.549 acre Callas tract and along the Northwest line of the said Medina tract for a distance of 147.23 feet to a 5/8" iron rod with cap stamped "City of Beaumont ROW Monument" set for corner in the proposed Southwest right-of-way line of Concord Road, said corner being the POINT OF BEGINNING of the parcel herein described; 1 ) THENCE, NORTH 35°14'18" EAST, continuing along the Southeast line of the said 0.549 acre Callas tract and the Northwest line of said Medina tract for a distance of 9.87 feet to a point for corner in the existing Southwest right-of-way line of Concord Road, said corner being the most Northerly corner of the said Medina tract and being the most Easterly corner of the said 0.549 acre Callas tract; 2) THENCE, SOUTH 54°33'44" EAST, along the existing Southwest right-of-way line of Concord Road for a distance of 99.92 feet to a point for corner in the Northwest right-of-way line of Allen Drive (based on a width of 60 feet), said corner also being the beginning of a curve turning to the right having a radius of 20.00 feet and being subtended by a chord bearing SOUTH 24°35'26" EAST having a chord length of 19.98 feet; 3) THENCE, SOUTHEASTERLY, along said curve for an arc length of 20.92 feet to a 5/8" iron rod with cap stamped "City of Beaumont ROW Monument" set for corner in the proposed Southwest right-of-way line of Concord Road; April 2009 Parcel 16 Page 2 of 4 EXHIBIT 4) THENCE, NORTH 54°30'26" WEST, along the proposed Southwest right-of-way line of Concord Road for a distance of 117.19 feet to the POINT OF BEGINNING and containing 0.0256 acre (1,113 square feet) of land. A parcel plat of even date accompanies this property description. I, Mark W. Whiteley, Registered Professional Land Surveyor No. 3636, in the State of Texas, do hereby certify that the above field notes correctly reflect an actual survey made under my supervision and the limits, boundaries and corners are truly shown just as found at the time of the survey. Surveyed February 2009 h/ GIVEN UNDER MY HAND AND SEAL THIS THE 2� DAY OF APRIL 2009. J. rt •try . H J E.I EY : , a ,. Mark W. Whiteley, RPLS #3636 Yt LEGEND ■ SET 5/8" 1, R. WITH CAP STAMPED "CITY OF BEAUMONT ROW MONUMENT' 0 TXD❑T CONTROL MONUMENT Q PARCEL NUMBER O FND PROPERTY CORNER AS NOTED POWER POLE PARENT TRACT PROPOSED ROW LINE N.T.S. EXISTING ROW LINE CONCORD ROAD PROPERTY LINE — — SURVEY LINE P.O.B. COUNTY LINE PARCEL 16 16 ANNA MARIE MEDINA p MAY 9, 2007 IA 0 4¢� Rj CF NO.OPRJC 18235 w (NOVEMBER 18 1998 Q CF NO. 98WJIII cl OPRJC P.O.0 PARCEL 16 FND. 1\2*1. ROD W\CAP CALLED 0.549 ACRES — JAMES R. CALLAS NOVEMBER 22, 2004 CF NO. 2004045685 OPRJC A. WILLIAMS SURVEY ABSTRACT NO. 385 BEARINGS AND DISTANCES SHOWN ENCLOSED IN PARENTHESES ARE CALLED BEARINGS AND DISTANCES IN THE DESCRIPTION OF THE PARENT TRACT. SURVEYED FEBRUARY 2009 A PROPERTY DESCRIPTION OF EVEN DATE ACCOMPANIES THIS PARCEL PLAT. 0 r J, nay \� : '` 7; F EXISTING TAKING REMAINING ACRES ACRES/(S.E) ACRES r3� PARCEL 16, a 0. 4250 0. 0256/(1113) 0. 3994 MARK W. WHITELEY AND ASSOCIATES INCORPORATED PARCEL PLAT CONSULTING ENGINEERS, SHOWING SURVEYORS, AND PLANNERS PARCEL 16 CONCORD ROAD JEFFERSON COUNTY P. 0. BOX 5492 3250 EASTEX FRWY. BEAUMONT, TEXAS 77726-5492 BEAUMONT, TEXAS 77703 409-892-0421 (FAX) 409-892-1346 SCALE 1 " = 50' APRIL 2009 SHEET 3 OF 4 April 2009 Parcel 17 Page 1 of 4 EXHIBIT County: Jefferson Highway: Concord Road Project Limits: East Lucas to US 96, 69, 287 PROPERTY DESCRIPTION FOR PARCEL 17 Being a 0.0467 acre (2,035 square feet) of land, situated in the A. Williams League, Abstract No. 385, and being out of and part of Lot 26, Block 3 of the French Heights Subdivision recorded in Volume 6, Page 61 of the Map Records of Jefferson County, Texas, also being out of and part that certain called 0.919 acre tract of land having been conveyed to Ann Marie Medina from Michael Wirfs and Susan Wirfs by deed dated February 8, 2007 recorded under Clerk's File No. 2007005515 of the Real Property Records of Jefferson County, Texas, said 0.0467 acre (2,035 square feet) of land being more particularly described as follows; COMMENCING at a 5/8" iron rod found for the North corner of said 0.919 acre Medina tract; THENCE, SOUTH 35°37'12" WEST along the Northwesterly line of the said 0.919 acre Medina tract and the Southeasterly line of that certain tract of land having been conveyed to Mike Taweel and wife, Eula Lee Taweel from L. O. Roedahl by deed dated January 18, 1954 recorded under Volume 921 page 513 of the Deed Records of Jefferson County, Texas for a distance of 190.54 feet to a 5/8" iron rod with cap stamped "City of Beaumont ROW Monument" set for corner in the proposed Northeasterly right-of-way line of Concord Road, and the POINT OF BEGINNING of the parcel herein described; 1) THENCE, SOUTH 54 030'26" EAST along the proposed Northeasterly right-of-way line of Concord Road for a distance of 200.42 feet to a 5/8" iron rod with cap stamped "City of Beaumont ROW Monument" set for corner in the proposed Northeasterly right-of-way line of Concord Road, said point being in the Southeast line of the said 0.919 acre Medina tract and in the Northwest line of that certain tract of land having been conveyed to Luther Gary Simmons and Elizabeth Louise Simmons from Theda M. Simmons by deed dated July 28, 2006 recorded under Clerk's File No. 2006029217 of the Real Property Records of Jefferson County, Texas; 2) THENCE, SOUTH 35°28'36" WEST, along Southeast line of the said 0.919 acre Medina tract and the Northwest line of said Simmons tract for a distance of 10.05 feet to a point for corner in the existing Northeast right-of-way line of Concord Road, said point being the most Southerly corner of the said 0.919 acre Medina tract and the most Westerly corner of the said Simmons tract, and from said point a 3/4" iron rod found in concrete bears NORTH 35 028'36" EAST a distance of 0.49 feet; April 2009 Parcel 17 Page 2 of 4 EXHIBIT 3) THENCE, NORTH 54 033'44" WEST, along the existing Northeast right-of-way line of Concord Road for a distance of 200.45 feet to a point for corner, said point being the most Westerly corner of the said 0.919 acre Medina tract and said point being the most Southerly corner of the said Taweel tract, and from said point a 5/8" iron rod found bears NORTH 54°09'57" EAST a distance of 1 .50 feet; 4) THENCE, NORTH 35°37'12" EAST, along the Southeasterly line of the said Taweel tract and along the Northwest line of the said 0.919 acre Medina tract for a distance of 10.25 feet to the POINT OF BEGINNING and containing 0.0467 acre (2,035 square feet) of land. A parcel plat of even date accompanies this property description. I, Mark W. Whiteley, Registered Professional Land Surveyor No. 3636, in the State of Texas, do hereby certify that the above field notes correctly reflect an actual survey made under my supervision and the limits, boundaries and corners are truly shown just as found at the time of the survey. Surveyed February 2009 f}. GIVEN UNDER MY HAND AND SEAL THIS THE Zl DAY OF APRIL 2009. Mark W. Whiteley, RPLS #3636 LEGEND ■ SET 5/8" 1. R. WITH CAP STAMPED " CITY OF BEAUMONT ROW MONUMENT" TXDOT CONTR❑L MONUMENT xx PARCEL NUMBER O FND PROPERTY CORNER AS NOTED A. WILLIAMS SURVEY POWER POLE ABSTRACT NO. 385 PROPOSED ROW LINE EXISTING ROW LINE P.O.C. PAR 17 PROPERTY LINE FND 5/8"I. ROO SURVEY LINE COUNTY LINE CALLED 0.919 ACRES LUTHUR GARY SIMMONS, el ux ANN MARIE MEDINA JULY 28, 2006 FEBRUARY 8, 2007 CF NO. 2006029217 MIKE TAWEEL, et ux CF NO. 2007005515 OPRJC JANUARY 19, 1954 OPRJC VOL. 921 PG, 51J ORJC P.O.B. PAR 17 17 CONCORD ROAD PARENT TRACT N.T.S. BEARINGS AND DISTANCES SHOWN ENCLOSED IN PARENTHESES ARE CALLED BEARINGS AND DISTANCES IN THE DESCRIPTION OF THE PARENT TRACT. SURVEYED FEBRUARY 2009 A PROPERTY DESCRIPTION OF EVEN DATE ACCOMPANIES THIS PARCEL PLAT. EXISTING TAKING REMAINING ACRES ACRES/(S.F.) ACRES PARCEL 17, M ARK W. WHITELEY 0. 919 0. 0467/(2035) 0. 8723 AND ASSOCIATES INCORPORATED PARCEL PLAT CONSULTING ENGINEERS, SHOWING SURVEYORS, AND PLANNERS PARCEL 17 r. CONCORD ROAD JEFFERSON COUNTY P. 0. BOX 5492 3250 EASTEX FRWY. BEAUMONT, TEXAS 77726-5492 BEAUMONT, TEXAS 77703 409-892-0421 (FAX) 409-892-1346 SCALE 1 ' = 50' APRIL 2009 SHEET 3 OF 4 RESOLUTION NO. WHEREAS, agreements have been negotiated for the acquisition of property, as described below, for the Concord Road Pavement Widening Project: • Parcel #9 0.0235 acre out of Lot 33, Tract 1, French Heights Addition (5095 Concord Road) Value: $39,000.00 Owner: Ann Marie Medina • Parcel #10 0.0470 acre out of Lot 32, Tract 1, French Heights Addition (5165 Concord Road) Value: $5,200.00 Owners: Ann Marie Medina and Jason Medina • Parcel#12 0.0261 acre out of NE 100'x100' Lot 31, French Heights Addition (5195 Concord Road) Value: $7,500.00 Owner: Ann Marie Medina • Parcel #16 0.0256 acre out of pt Lots 30 and 31, French Heights Addition (5205 Concord Road) Value: $1,300.00 Owner: Ann Marie Medina • Parcel #17 0.0467 acre out of Lot 1 , Tract 1, French Heights Addition (5240 Concord Road) Value: $5,197.00 Owner: Ann Marie Medina NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT.- THAT the purchase of the above described property be, and the same is hereby, approved. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 22nd day of December, 2009. - Mayor Becky Ames - D RICH WITH OPPORTUNITY r T • E • X • A • S City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tyrone E. Cooper, City Attorney MEETING DATE: December 22, 2009 REQUESTED ACTION: Consider a resolution authorizing and ratifying, in all things, the filing of a lawsuit against James Mathews, Jr., for the judicial review of the Opinion and Award of Don Hays, Independent Hearing Examiner in the matter styled In Re: City of Beaumont, Texas, and Local 399, AAA Case No. 70 390 00042 09, Disciplinary Appeal of James Mathews, Jr. RECOMMENDATION Administration recommends that the Council adopt a resolution authorizing and ratifying, in all things, the filing of a lawsuit against James Mathews, Jr. for the judicial review of the Opinion and Award of Don Hays, Independent Hearing Examiner in the matter styled In Re: City of Beaumont, Texas, and Local 399, AAA Case No. 70 390 00042 09, Disciplinary Appeal of James Mathews, Jr. BACKGROUND James Mathews, Jr., was indefinitely suspended from his employment with the Beaumont Fire Rescue Services for alleged violations of state law, civil service rules and departmental rules and regulations. Mr. Matthews grieved the termination. Don Hays, Independent Hearing Examiner, found that procedurally he did not have jurisdiction of the matter and, without hearing any of the factual evidence, ordered Mr. Mathews reinstated. Mr. Mathews was acquitted of criminal charges growing out of the occurrence after the complaining witness failed to appear for trial. Acquittal or dismissal of an indictment or a complaint does not mean that a firefighter has not violated civil service rules and does not negate the charges that may have been or may be brought against the firefighter. Local Government Code 143.057(f). RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the filing and prosecution of a lawsuit by the City Attorney or his designee against James Mathews, Jr., for the judicial review of the Opinion and Award of Don Hays, Independent Hearing Examiner, in the matter styled In Re: City of Beaumont, Texas, and Local 399, AAA Case No. 70 390 00042 09, Disciplinary Appeal of James Mathews, Jr., is hereby authorized and the filing thereof is in all things ratified. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 22nd day of December, 2009. - Mayor Becky Ames - III E A.. City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager *1;Vq. PREPARED BY: Tom Warner, Director of Public Works MEETING DATE: December 22, 2009 REQUESTED ACTION: City Council approve a resolution authorizing the City Manager to execute an agreement with Burlington, Northern & Santa Fe Railroad, The Beaumont Independent School District and the City. RECOMMENDATION Administration recommends City Council approve a resolution authorizing the City Manager to execute an agreement with Burlington, Northern & Santa Fe (BNSF) Railroad, The Beaumont Independent School District (BISD) and the City for the proposed railroad crossing improvements on Bayou Willow Parkway BACKGROUND The BISD is responsible for the construction of a new street, from the IH-10 East Frontage Road to Fannett Road(State Highway 124),to serve their new multi purpose facility.Upon completion ofthe street, the BISD will request that the City assume ownership and maintenance responsibilities of the new street. The name for this street is Bayou Willow Parkway. On the east end of Bayou Willow Parkway, near Fannett Road, is a BNSF railroad track. In conjunction with construction of the proposed at grade street/railroad crossing, the BNSF will be installing railroad warning devices. The warning devices to be installed are flashing lights, bells and gate arms. Additionally, advanced warning signs and pavement markings will be installed. Under the terms of the agreement, the City will assume maintenance responsibilities of the advance warning sign, pavement markings and will also be responsible for trimming vegetation that may obstruct the visibility of the crossing or warning devices. These responsibilities, as outlined in this proposed agreement,are similar to the City's responsibilities at existing railroad crossings throughout the city. BUDGETARY IMPACT None. RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to execute an agreement, substantially in the form attached hereto as Exhibit"A," with Burlington Northern Santa Fe Railway and the Beaumont Independent School District for the proposed railroad crossing improvements on Bayou Willow Parkway. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 22nd day of December, 2009. - Mayor Becky Ames - i GRADE CROSSING CONSTRUCTION AND MAINTENANCE AGREEMENT BNSF File No. 023805 Bayou Willow Parkway U.S. D.O.T. No. 023805K Railroad Line Segment 7505 Railroad Milepost 71.30 This Agreement ("Agreement"), is executed to be effective as of this 6th day of October, 2009 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("BNSF"), the CITY OF BEAUMONT, a political subdivision of the State of Texas ("City"), and the BEAUMONT INDEPENDENT SCHOOL DISTRICT ("Agency"). RECITALS: nT WHEREAS, BNSF owns and operates a line of railroad in and through the City of ft-P750, State of Texas; WHEREAS, in the interest of aiding vehicular travel and public safety, the Agency is undertaking a project to create the new Bayou Willow Parkway at-grade crossing, located at BNSF Line Segment 7505 and Milepost 71.30, and designated by the new D.O.T. No. 023805K, by constructing a 3-lane roadway and installing railroad crossing signals and activation equipment within a new roadway easement across the BNSF right-of-way as indicated on the Exhibit A, attached hereto and incorporated herein; and WHEREAS, the existing at-grade crossing known as Private/Field Road, Milepost 71.45, DOT No. 023738T, Line Segment 7505, Silsbee Subdivision, Gulf Division will be permanently closed, vacated, abandoned, and removed upon completion of construction and the placing in service of said new Bayou Willow Parkway at-grade crossing; WHEREAS, the parties agree that the RAILROAD will receive no ascertainable benefit from the installation of advance warning signs, pavement marking stop bars or crossing signal equipment (hereinafter collectively called, "Crossing Signal Equipment"); and WHEREAS, the Agency also desires BNSF to install a new crossing surface at Bayou Willow Parkway with a new concrete and rubber crossing surface; WHEREAS, the Agency is paying for the acquisition and installation of crossing signal equipment and the new crossing surface at Bayou Willow Parkway; WHEREAS, the BNSF agrees to purchase and install, at AGENCY'S sole expense, the crossing signal equipment and the new crossing surface described in the scope of work herein, and upon the terms and conditions set forth below. NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE I—SCOPE OF WORK 1. The term "Project" as used herein includes any and all work related to the construction of Bayou Willow Parkway by the Agency and installation of crossing signals, activation equipment, and new crossing surfaces at U.S. D.O.T No. 023805K, (hereinafter referred to as the "Crossing") by BNSF, more particularly described on the Exhibit A, including, but not limited to, any and all changes to telephone, telegraph, signal and electrical lines and appurtenances, temporary and permanent track work, fencing, grading, alterations to or new construction of drainage facilities, preliminary and construction engineering and contract preparation and the permanent removal, closure, vacation, and abandonment of the at- EXHIBIT "A" grade crossings known as known as Private/Field Road, Milepost 71.45, DOT No. 023738T, Line Segment 7505, Silsbee Subdivision, Gulf Division. ARTICLE II— BNSF OBLIGATIONS In consideration of the covenants of Agency set forth herein and the faithful performance thereof, BNSF agrees as follows: 1. In consideration of the faithful performance of the Agency's covenants contained herein, BNSF hereby grants to Agency, its successors and assigns, upon and subject to the terms and conditions set forth in this Agreement, permission and license to enter upon and use the portion of BNSF's right-of-way as is necessary to construct and thereafter maintain, the Crossing as described further on Exhibit A, excepting and reserving BNSF's rights, and the rights of any others who have obtained, or may obtain, permission or authority from BNSF, to do the following: (a) Operate, maintain, renew and/or relocate any and all existing railroad track or tracks, wires, pipelines and other facilities of like character upon, over or under the surface of said right-of- way; (b) Construct, operate, maintain, renew and/or relocate upon said right-of-way, without limitation, such facilities as the BNSF may from time to time deem appropriate; (c) Otherwise use or operate the right-of-way as BNSF may from time to time deem appropriate. This right is given by BNSF without warranty of title of any kind, expressed or implied, and no covenant on warranty of title shall be implied from the use of any word or words herein contained. In the event Agency is evicted by anyone owning, or claiming title to or any interest in said right-of-way, BNSF will not be liable to Agency for any damages, losses or any expenses of any nature whatsoever. The granting of similar rights to others, subsequent to the date of this Agreement, will not impair or interfere with the rights granted to Agency herein. 2. BNSF will furnish all labor, materials, tools, and equipment for railroad work required for the construction of the Project, such railroad work and the estimated cost thereof being as shown on Exhibit D attached hereto and made a part hereof. In the event construction on the Project has not commenced within six (6) months following the Effective Date, BNSF may, in its sole and absolute discretion, revise the cost estimates set forth in said Exhibit D. In such event, the revised cost estimates will become a part of this Agreement as though originally set forth herein. Any item of work incidental to the items listed on Exhibit D not specifically mentioned therein may be included as a part of this Agreement upon written approval of Agency, which approval will not be unreasonably withheld. Construction of the Project must include the following railroad work by BNSF: (a) Procurement of materials, equipment and supplies necessary for the railroad work; (b) Preliminary engineering, design, and contract preparation; (c) Furnishing of flagging services during construction of the Project as required and set forth in further detail on Exhibit C, attached to this Agreement and made a part hereof; (d) Furnishing engineering and inspection as required in connection with the construction of the Project; (d) Installation of one 56-foot concrete crossing surface for the one track complete with new rail, ties, ballast, fasteners, along with appropriate surfacing, to carry the improved roadway and sidewalks; (e) Installation of Crossing Signal Equipment and Crossing Signal Control House as shown on Exhibit A ; Bayou Willow Parkway C&M Agreement(10/06/2009) Page 2 Form 0118 Rev.09/21/06 (f) Make such changes in the alignment, location and elevation of its telephone, telegraph, signal and/or wire lines and appurtenances along, over or under the tracks, both temporary and permanent, as may become necessary by reason of the construction of the Project. 3. BNSF will do all railroad work set forth in Article ll, Section 2 above on an actual cost basis, when BNSF, in its sole discretion, determines it is required by its labor agreements to perform such work with its own employees working under applicable collective bargaining agreements. 4. Agency agrees to reimburse BNSF for work of an emergency nature caused by Agency or Agency's contractor in connection with the Project which BNSF deems is reasonably necessary for the immediate restoration of railroad operations, or for the protection of persons or BNSF property. Such work may be performed by BNSF without prior approval of Agency and Agency agrees to fully reimburse BNSF for all such emergency work. 5. BNSF may charge Agency for insurance expenses, including self-insurance expenses, when such expenses cover the cost of Employer's Liability (including, without limitation, liability under the Federal Employer's Liability Act) in connection with the construction of the Project. Such charges will be considered part of the actual cost of the Project, regardless of the nature or amount of ultimate liability for injury, loss or death to BNSF's employees, if any. 6. During the construction of the Project, BNSF will send Agency progressive invoices detailing the costs of the railroad work performed by BNSF under this Agreement. Agency must reimburse BNSF for completed force-account work within thirty (30) days of the date of the invoice for such work. Upon completion of the Project, BNSF will send Agency a detailed invoice of final costs, segregated as to labor and materials for each item in the recapitulation shown on Exhibit D. Pursuant to this section and Article IV, Section 7 herein, Agency must pay the final invoice within ninety (90) days of the date of the final invoice. BNSF will assess a finance charge of .033% per day (12% per annum) on any unpaid sums or other charges due under this Agreement which are past its credit terms. The finance charge continues to accrue daily until the date payment is received by BNSF, not the date payment is made or the date postmarked on the payment. Finance charges will be assessed on delinquent sums and other charges as of the end of the month and will be reduced by amounts in dispute and any unposted payments received by the month's end. Finance charges will be noted on invoices sent to Agency under this section. 7. Upon completion of construction of the Project, BNSF will, at its sole cost and expense, operate and maintain the Crossing Signal Equipment, Crossing Signal Control House, and the new crossing surfaces, from end-of-tie to end-of-tie, in proper condition. ARTICLE III—AGENCY OBLIGATIONS In consideration of the covenants of BNSF set forth herein and the faithful performance thereof, Agency agrees as follows: 1. Agency must furnish to BNSF plans and specifications for the Project. Said plans (reduced size 11" x 17"), showing the plan and profile of the roadway work on BNSF right-of-way and marked as Exhibit A, attached hereto and made a part hereof, must be submitted to BNSF for the development of railroad cost estimates. 2. Agency must make any required application and obtain all required permits and approvals for the construction of the Project. 3. Agency must acquire all rights of way necessary for the construction of the Project. 4. Agency must make any and all arrangements for the installation or relocation of wire lines, pipe lines and other facilities owned by private persons, companies, corporations, political subdivisions or public utilities other than BNSF which may be necessary for the construction of the Project. Bayou Willow Parkway C&M Agreement(10/06/2009) Page 3 Form 0118 Rev.09/21/06 5. Agency must construct the Project as shown on the attached Exhibit A and do all work("Agency's Work") provided for in the plans and specifications for the Project, except railroad work that will be performed by BNSF hereunder. Agency must furnish all labor, materials, tools and equipment for the performance of Agency's Work. The principal elements of Agency's Work are as follows: (a) Design and construction of Bayou Willow Parkway; (b) Installation of a pavement marking stop bar in accordance with the Manual on Uniform Traffic Control Devices (hereinafter called, "MUTCD"); (c) Installation of advance warning signs in accordance with the MUTCD (d) Perform all necessary grading and paving, including backfill of excavations and restoration of disturbed vegetation on BNSF's right-of-way; (e) Provide suitable drainage, both temporary and permanent; (f) Provide all barricades, lights, flagmen or traffic control devices necessary for preventing vehicular traffic from using a portion of the Crossing, during the installation of the concrete crossing surfaces, and also during the installation of the Crossing Signal Equipment; (g) Construct concrete roadway surface on approaches to each track; (h) Job site cleanup including removal of all construction materials, concrete debris, surplus soil, refuse, contaminated soils, asphalt debris, litter and other waste materials to the satisfaction of BNSF; 6. The Agency will approve the location of the signals and signal bungalow prior to the installation by BNSF. 7. The Agency must have advanced railroad crossing signs and standard pavement markings in place at the crossing shown on Exhibit A (if the same are required by the MUTCD) prior to the acceptance of this Project by the Agency. 8. The Agency must give BNSF's Manager Public Projects written notice to proceed ("Notice to Proceed") with the railroad portion of the work after receipt of necessary funds for the Project. BNSF will not begin the railroad work (including, without limitation, procurement of supplies, equipment or materials) until written notice to proceed is received from Agency. 9. The Agency's Work must be performed by Agency or Agency's contractor in a manner that will not endanger or interfere with the safe and timely operations of BNSF and its facilities. 10. For any future inspection or maintenance, either routine or otherwise, performed by subcontractors on behalf of the Agency, the Agency shall require the subcontractors to execute the C documents. Prior to performing any future maintenance with its own personnel, the Agency shall: comply with all of BNSF's applicable safety rules and regulations; require any Agency employee performing maintenance to complete the safety training program at the BNSF's Internet Website 11 contractororientation.com"; notify BNSF when, pursuant to the requirements of exhibit C, a flagger is required to be present; procure, and have approved by BNSF's Risk Management Department, Railroad Protective Liability insurance. 11. Agency must require its contractor(s) to notify BNSF's Roadmaster at least thirty (30) calendar days prior to requesting a BNSF flagman in accordance with the requirements of Exhibit C attached hereto. Additionally, Agency must require its contractor(s) to notify BNSF's Manager of Public Projects thirty(30)calendar days prior to commencing work on BNSF property or near BNSF.tracks. Bayou Willow Parkway C&M Agreement(10/06/2009) Page 4 Form 0118 Rev.09/21/06 12. Agency must include the following provisions in any contract with its contractor(s) performing work on said Project: (a) The Contractor is placed on notice that fiber optic, communication and other cable lines and systems (collectively, the "Lines") owned by various telecommunications companies may be buried on BNSF's property or right-of-way. The locations of these Lines have been included on the plans based on information from the telecommunications companies. The contractor will be responsible for contacting BNSF's Communications Network Control Center at 800-533-2891, BNSF's Signal Representative (Supervisor Signals-Construction) at 817-740-7384, 0 id the telecommunications companies and notifying them of any work that may damage these Lines or facilities and/or interfere with their service. The contractor must also mark all Lines shown on the plans or marked in the field in order to verify their locations. The contractor must also use all reasonable methods when working in the BNSF right-of-way or on BNSF property to determine if any other Lines (fiber optic, cable, communication or otherwise) may exist. (b) Failure to mark or identify these Lines will be sufficient cause for BNSF's engineering representative to stop construction at no cost to the Agency or BNSF until these items are completed. In addition to the liability terms contained elsewhere in this Agreement, the contractor hereby indemnifies, defends and holds harmless BNSF for, from and against all cost, liability, and expense whatsoever (including, without limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of Contractor, its subcontractors, agents and/or employees that cause or in any way or degree contribute to (1) any damage to or destruction of any Lines by Contractor, and/or its subcontractors, agents and/or employees, on BNSF's property or within BNSF's right-of-way, (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on BNSF's property or within BNSF's right-of-way, and/or (3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of such telecommunication company(ies).THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION OR CLAIM WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF BNSF. (c) The Contractor will be responsible for the rearrangement of any facilities or Lines determined to interfere with the construction. The Contractor must cooperate fully with any telecommunications company(ies)in performing such rearrangements. 13. Agency must require compliance with the obligations set forth in this agreement, including Exhibit C and Exhibit C-1, and incorporate in each prime contract for construction of the Project, or the specifications therefore(i)the provisions set forth in Article III; (ii)the provisions set forth in Article IV; and (iii) the provisions set forth in Exhibit C and Exhibit C-1, attached hereto and by reference made a part hereof. 14. Except as otherwise provided below in this Section 13, all construction work performed hereunder by Agency for the Project will be pursuant to a contract or contracts to be let by Agency, and all such contracts must include the following: (a) All work performed under such contract or contracts within the limits of BNSF's right-of- way must be performed in a good and workmanlike manner in accordance with plans and specifications approved by BNSF; (b) Changes or modifications during construction that affect safety or BNSF operations must be subject to BNSF's approval; Bayou Willow Parkway C&M Agreement(10/06/2009) Page 5 Form 0118 Rev.09/21/06 (c) No work will be commenced within BNSF's right-of-way until each of the prime contractors employed in connection with said work must have (i) executed and delivered to BNSF a letter agreement in the form of Exhibit C-I, and (ii) delivered to and secured BNSF's approval of the required insurance; and (d) If it is in Agency's best interest, Agency may direct that the construction of the Project be done by day labor under the direction and control of Agency, or if at any time, in the opinion of Agency, the contractor has failed to prosecute with diligence the work specified in and by the terms of said contract, Agency may terminate its contract with the contractor and take control over the work and proceed to complete the same by day labor or by employing another contractor(s) provided; however, that any contractor(s) replacing the original contractor(s) must comply with the obligations in favor of BNSF set forth above and, provided further, that if such construction is performed by day labor, Agency will, at its expense, procure and maintain on behalf of BNSF the insurance required by Exhibit C-1. (e) To facilitate scheduling for the Project, Agency shall have its contractor give BNSF's Roadmaster 90 days advance notice of the proposed times and dates for work windows. BNSF and Agency's contractor will establish mutually agreeable work windows for the Project. BNSF has the right at any time to revise or change the work windows, due to train operations or service obligations. BNSF will not be responsible for any additional costs and expenses resulting from a change in work windows. Additional costs and expenses resulting from a change in work windows shall be accounted for in the contractor's expenses for the Project. 15. Agency must advise the appropriate BNSF Manager Public Projects and the City's Public Works Director, in writing, of the completion date of the Project within thirty(30)days after such completion date. Additionally, Agency must notify BNSF's Manager Public Projects, in writing, of the date on which Agency and/or its Contractor will meet with BNSF for the purpose of making final inspection of the Project. 16. TO THE FULLEST EXTENT PERMITTED BY LAW, AGENCY HEREBY RELEASES, INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS AND ATTORNEYS' FEES) OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE EMPLOYEES OF THE PARTIES HERETO) OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART) (1) THE USE, OCCUPANCY OR PRESENCE OF AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, (11) THE PERFORMANCE, OR FAILURE TO PERFORM BY THE AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, (IV) AGENCY'S BREACH OF THE TEMPORARY CONSTRUCTION LICENSE OR EASEMENT GRANTED TO AGENCY PURSUANT TO ARTICLE 11 OF THIS AGREEMENT, (V) ANY RIGHTS OR INTERESTS GRANTED TO AGENCY PURSUANT TO THE TEMPORARY CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN ARTICLE 11 OF THIS AGREEMENT, (VI) AGENCY'S OCCUPATION AND USE OF BNSF'S PROPERTY OR RIGHT-OF-WAY, INCLUDING, WITHOUT LIMITATION, SUBSEQUENT MAINTENANCE OF THE STRUCTURE BY AGENCY, OR (VII) AN ACT OR OMISSION OF AGENCY OR ITS OFFICERS, AGENTS, INVITEES, EMPLOYEES OR CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE LIABILITY ASSUMED BY AGENCY WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY OR DEATH WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO Bayou Willow Parkway C&M Agreement(10/06/2009) Page 6 Form 0118 Rev.09/21/06 THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF BNSF. 17. Agency must take all necessary actions to permanently close, vacate, and abandon, the roadway crossing the right of way known as Private/Field Road, Milepost 71.45, DOT No. 023738T, Line Segment 7505, Silsbee Subdivision, Gulf Division prior to the start of construction of said new Bayou Willow Parkway at-grade crossing. 18. Agency must perform all necessary work to obtain the permanent closure, vacation, and removal of the at-grade crossing known as Private/Field Road, Milepost 71.45, DOT No. 023738T, Line Segment 7505, Silsbee Subdivision, Gulf Division across BNSF's right-of-way and must barricade and remove the road approaches within 3 days of opening of the new at-grade crossing to vehicular traffic. BNSF will cooperate with Agency to achieve the closures and vacations and will remove the crossing surface within its right-of-way. If Agency's work for both closures and vacations is not completed after 3 days of opening the new at-grade crossing, Agency authorizes BNSF to complete the necessary closure work, at the Agency's expense. Agency agrees to fully reimburse BNSF for all such work. ARTICLE IV—CITY OBLIGATIONS In consideration of the covenants of BNSF set forth herein and the faithful performance thereof, City agrees as follows: 1. For any future inspection or maintenance, either routine or otherwise, performed by subcontractors on behalf of the City, the City shall require the subcontractors to execute the C documents. Prior to performing any future maintenance with its own personnel, the City shall: comply with all of BNSF's applicable safety rules and regulations; require any City employee performing maintenance to complete the safety training program at the BNSF's Internet Website "contractororientation.com"; notify BNSF when, pursuant to the requirements of exhibit C, a flagger is required to be present; procure, and have approved by BNSF's Risk Management Department, Railroad Protective Liability insurance. 2. In addition to the terms and conditions set forth elsewhere in this Agreement, the City agrees to the following terms upon completion of construction of the Project: (a) City will own and be fully responsible for repairs, maintenance, future construction or reconstruction of the Bayou Willow Parkway roadway. (b) City will maintain the elevation of the Bayou Willow Parkway roadway approaches to match the elevation on the railroad track crossing surfaces and to be no more than three (3) inches above or six (6) inches below top-of-rail elevation at a distance measured thirty (30)feet from the nearest rail. (c) City will maintain the advanced railroad crossing warning signs and pavement markings and agrees to hold harmless and indemnify BNSF for any claims, damages or losses, in whole or in part, caused by or due to the City's failure to maintain the advanced warning signs and markings or other requirements of the MUTCD. (d) City will do nothing and permit nothing to be done in the maintenance of the Bayou Willow Parkway roadway, which will interfere with or endanger facilities of BNSF. (e) Notwithstanding the provision of Article II, Section 7(a), if any regulations, ordinances, acts, rules or other laws subsequently passed or amended by the City or any other governmental or legislative authority increase the City's portion of maintenance cost under this Agreement, BNSF will receive the benefit of any such regulations, ordinances, acts, rules or other laws and the City's increased portion of maintenance costs will be incorporated into and made a part of this Agreement. Bayou Willow Parkway C&M Agreement(10/06/2009) Page 7 Form 0118 Rev.09/21/06 (f) It is expressly understood by the City and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto. 3. The City must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for Inspection and Maintenance purposes and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, City must require its prime contractor(s)to comply with the obligations set forth in Exhibit C and Exhibit C- 1, as the same may be revised from time to time. The City will be responsible for its contractor(s) compliance with such obligations. ARTICLE V—JOINT OBLIGATIONS IN CONSIDERATION of the premises, the parties hereto mutually agree to the following: 1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior to the commencement of any such changes or modifications. 2. The work hereunder must be done in accordance with the Exhibit A and the detailed plans and specifications approved by BNSF. 3. Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations (BNSF or its related railroads) or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF. 4. BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF's opinion, prosecutes the Project work in a manner which is hazardous to BNSF property, facilities or the safe and expeditious movement of railroad traffic; or (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the Project. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF's Division Engineer or until additional insurance has been delivered to and accepted by BNSF. Any such work stoppage under this provision will not give rise to any liability on the part of BNSF. BNSF's right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: Claudine Starita Parsons Project Manager 3395 Harrison Avenue Beaumont, Texas 77706 5. Agency must supervise and inspect the operations of all Agency contractors to assure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of the BNSF railroad. If BNSF determines that proper supervision and inspection is not being performed by Agency personnel at any time during construction of the Project, BNSF has the Bayou Willow Parkway C&M Agreement(10/06/2009) Page 8 Form 0118 Rev.09/21/06 right to stop construction (within or adjacent to its operating right-of-way). Construction of the Project will not proceed until Agency corrects the situation to BNSF's reasonable satisfaction. If BNSF feels the situation is not being corrected in an expeditious manner, BNSF will immediately notify Claudine Starita, Parsons Project Manager for appropriate corrective action. 6. Pursuant to this section and Article II, Section 6 herein, Agency must, out of funds made available to it for the construction of the Project", reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement. 7. All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Federal Aid Highway Program Manual, U.S. Department of Transportation, as amended from time to time, which manual is hereby incorporated into and made a part of this Agreement by reference. The parties mutually agree that BNSF's preliminary engineering, design, and contract preparation costs described in Article II, Section 2 herein are part of the costs of the Project even though such work may have preceded the date of this Agreement. 8. The construction of the Project will not commence until Agency gives BNSF's Manager Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference BNSF's file number 023805 and D.O.T. Crossing No. 023805K and must state the time that construction activities will begin. 9. If a railway or highway improvement project necessitates rearrangement, relocation, or alteration of the Crossing Signal Equipment, Crossing Signal House, or the new crossing surface installed hereunder, the costs for such rearrangement, relocation or alteration will be the responsibility of the party requesting such changes 10. If the Crossing Signal Equipment and/or Crossing Signal House installed hereunder cannot, through age, be maintained, or by virtue of its obsolescence, requires replacement, the cost of installation of the new crossing signal equipment and/or new crossing signal house will be negotiated by the parties hereto on the basis of the current Federal Aid Railroad Signal Program participation and applicable Agency at the time of such replacement is warranted 11. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well as the State of Texas and the Federal Highway Administration, for a period of one (1) year from the date of the final BNSF invoice under this Agreement. 12. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party. 13. In the event construction of the Project does not commence within twelve (12) months of the Effective Date, this Agreement will become null and void. 14. Neither termination nor expiration of this Agreement will release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration. 15. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable. 16. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is the full and complete agreement between BNSF, the Agency, and the City with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto. Bayou Willow Parkway C&M Agreement(10/06/2009) Page 9 Form 0118 Rev.09/21/06 17. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF Railway Company: BNSF Manager Public Projects 5800 North Main Street Saginaw, Texas 76179 Agency: BISD Superintendent 3395 Harrison Avenue Beaumont, Texas 77706 City: Public Works Director 801 Main Street P.O. Box 3827 Beaumont, Texas 77704-3827 Bayou Willow Parkway C&M Agreement(10106/2009) Page 10 Form 0118 Rev.09/21/06 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested by its duly qualified and authorized officials as of the day and year fist above written. BNSF RAILWAY COMPANY By: Printed Name: J. Lyn Hartley Title: Director Public Projects AGENCY BEAUMONT INDEPENDENT SCHOOL DISTRICT r Printed Name: Dr. Carrol Thomas Title: BISD Superintendent VVff NESS: d CITY CITY OF BEAUMONT, TEXAS By: Printed Name: Title: WITNESS: Bayou Willow Parkway C&M Agreement(10/06/2009) Page 11 Form 0118 Rev.09/21/06 N a o N � o N m � N m 00 0 n 0 A N N O O � No m� O ~ z y� Vi y V� O f d tt � Downs Rd n � p - c ' Phelps Rd s ' G N71 �o O:\PROJECTS\08247 BISD AM Complex\Civil\Task 6\8247-TK600.dwg Apr 17.2009 11.32.1 BISD MULTI—PURPOSE CENTER SHEX- Fittz&Shipman Ex-a pgpj$Cp jQAj($; Bayou willow Parkway at HNSF Railway RAILROAD MILE POST 71.31 INC_ PROJECT NO. ConlulmgFi�em and Lmld TE-S PERMIT LOCATION MAP 1405 CORNERSTONE COURT,BFnU.GNT. (409)832-7238 EAX(409)832-7303 BEAUMONT, TEXAS DATE;.1 16/09 08247 - nor hij IF 24 24 22 22 2D 20 SHSF T11 I 11P 11 P"11 11 11 11711 71 CL 10 10 Crossing Layout ------Bayou Willow Parkway@ BNSF Railroad Milepost 71.30 Beaumont,Texas TO END EN0 0� The Burlington Northern & Santa Fe Railway Company TO BEAUMONI T% ---�7 EASTWARD APPR.1027' WESTWARD RD MPHR•1027' 20 MPH I{�.� 50'MIN.—:. 2% 50'MIN. i L NOS 666aaS; �J o w...3R2 IR 1 t} BAYOU WILLOW PARKWAY DOT -023 805 N INSTALL: GATES & FLASHERS CONTROL DEVICES: CONSTANT WARNING r� BOLO IN . - OUT SALVAGE: NONE ^ EXHIBIT A-RR Signal Sketch �fLJT INSTRUMENT HOUSE ® BELL BNSF RAIL WAY CO. BEAUMONT.TX. METER BAYOU WILLOW PARKWAY>> • CROSSING CONTROLL CONNECTIONS Warning device placement: LS:7505 o BIDIRECTIONAL CROSSING CONTROL Clearance to C.L.Track Mtn.12' M.P.71.30 Edge of Road to C.L.Foundation: DOT • 023 805 K D UNIDIRECTIONAL CROSSING CONTROL Min.4'3'with curb. DIVISION GULF Min.8'3'without curb. SUBDIVISION SILSBEE Max.12' KANSAS CITY rq COUPLER OR TERMINATION House Clearance: 25'Min.to Near Rail 30'Min.to Edge of Rood NO SCALE ALL LIGHTS TO BE LED DATE: 06/26/09 GUARD RAIL FILE:75050 71-30.dgn DDF/DOF 7505071_30.dgn 6/30/2009 8:12:36 AM ............ 47' B-B 46' F-F 28.5' 18.51 10, SEE PLAN FOR 4 1' 5'-0 8" CONCRETE LOCATION CURB-�77 5'_O A ------- 4 Z#-3,-B-AR-S--- 0 18- O.C.E.W. ............ --7 X�LPREPARED SUBGRADE COMPACTED STRUCTURAL NOTES; 1. REMOVE VEGETATION, EXCAVATE, GRADE AND PROOF nLL EMBANKMENT ROLL PER TxDOT SPECIFICATION. REMOVE SOFT SPOTS. FILL NTH STRUCTURAL FILL COMPACT. 2. HYDROMULEN SEED ALL DISTURBED AREAS BEHIND CURB. EXHIBIT A PAVEMENT SECTION Within BNSF Right of Way Fittz&Shipman -1:1 T SD MULTI-PURPOSE CENTER SHEET NO. INC. Bayou Willow Parkway CmmdftEh#hvm and Land Swvrwx PERMIT VICINITY MAP 1405 CORNERSTONE COURT. BEAUMONT, TEXAS BEAUMONT, TEYAS PROJECT NO. (409) 832-7238 FAX (409) 832-7303 06247 1 . � 3-20-09 .................. ..........I................­1.................. ...................... .................._­.'­_............­.­............................ ....................... .. .............. ............I............I.,...................I.......... EXHIBIT "C" CONTRACTOR REQUIREMENTS 1.01 General • 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as "Railway" where work is over or under on or adjacent to Railway property and/or right-of-way, hereafter referred to as"Railway Property", during the construction of Bayou Willow Parkway (DOT No. 023805K) at railroad milepost 71.30 in Beaumont,Texas. • 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit "C-1" Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and effect the insurance called for under Section 3 of said Exhibit"C-1". Questions regarding procurement of the Railroad Protective Liability Insurance should be directed to Rosa Martinez at Marsh,USA,214-303-8519. • 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the movement of any trains on Railway Property. • 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause the Contractor's work on Railway's Property to cease if, in the opinion of Railway,Contractor's activities create a hazard to Railway's Property, employees, and/or operations. Railway will have the right to stop construction work on the Project if any of the following events take place: (i) Contractor (or any of its subcontractors) performs the Project work in a manner contrary to the plans and specifications approved by Railway; (ii) Contractor(or any of its subcontractors), in Railway's opinion, prosecutes the Project work in a manner which is hazardous to Railway property, facilities or the safe and expeditious movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the Project; or(iv) Contractor fails to pay Railway for the Temporary Construction License or the Easement. The work stoppage will continue until all necessary actions are taken by Contractor or its subcontractor to rectify the situation to the satisfaction of Railway's Division Engineer or until additional insurance has been delivered to and accepted by Railway. In the event of a breach of(i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, Railway may immediately terminate the Temporary Construction License or the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of Railway. Railway's right to stop the work is in addition to any other rights Railway may have including, but not limited to, actions or suits for damages or lost profits. In the event that Railway desires to stop construction work on the Project, Railway agrees to immediately notify the following individual in writing: Claudine Starita Parsons Project Manager 3395 Harrison Ave Beaumont, Texas 77706 • 1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local Governmental laws and regulations, including,but not limited to environmental laws and regulations(including but not limited to the Resource Conservation and Recovery Act, as amended; the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA), and health and safety laws and regulations. The Contractor hereby indemnifies, defends and holds harmless Railway for, from and against all fines or penalties imposed or assessed by Federal, State and Local Governmental Agencies against the Railway which arise out of Contractor's work under this Agreement. • 1.01.06 The Contractor must notify the Beaumont ISD at (409) 617-5781 and Railway's Manager Public Projects, telephone number 817-352-2902 at least thirty (30) calendar days before commencing any work on Railway Property. Contractors notification to Railway,must refer to Railroad's file 023805K. Bayou Willow Parkway—Exhibit C(10/06/09) 1 1.01.07 For any bridge demolition and/or falsework above any tracks or any excavations located with any part of the excavations located within, whichever is greater, twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 2 horizontal to 1 vertical slope beginning at eleven(11)feet from centerline of the nearest track, both measured perpendicular to center line of track, the Contractor must furnish the Railway five sets of working drawings showing details of construction affecting Railway Property and tracks. The working drawing must include the proposed method of installation and removal of falsework,. shoring or cribbing, not included in the contract plans and two sets of structural calculations of any.falsework, shoring or cribbing. For all excavation and shoring submittal plans, the current "BNSF-UPRR Guidelines for Temporary Shoring" must be used for determining the design loading conditions to be used in shoring design, and all calculations and submittals must be in accordance with the current "BNSF-UPRR Guidelines for Temporary Shoring". All submittal drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. All calculations must take into consideration railway surcharge loading and must be designed to meet American Railway Engineering and Maintenance-of-Way Association (previously known as American Railway Engineering Association) Coopers E-80 live loading standard.All drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. The Contractor must not begin work until notified by the Railway that plans have been approved. The Contractor will be required to use lifting devices such as, cranes and/or winches to place or to remove any falsework over Railway's tracks. In no case will the Contractor be relieved of responsibility for results obtained by the implementation of said approved plans. • 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for any type of damages or for extra or additional compensation in the event his work is delayed by the Railway. 1.02 Contractor Safety Orientation • 1.02.01 No employee of the Contractor,its subcontractors,agents or invitees may enter Railway Property without first having completed Railway's Engineering Contractor Safety Orientation, found on the web site www.contractororientation.com. The Contractor must ensure that each of its employees, subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation through internet sessions before any work is performed on the Project. Additionally, the Contractor must ensure that each and every one of its employees, subcontractors,agents or invitees possesses.a card certifying completion of the Railway Contractor Safety Orientation before entering Railway Property. The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on the web site or from the Railway's Representative. 1.03 Railway Requirements • 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and the cost of such repairs or replacement must be paid for by the Agency. • 1.03.02 The Contractor must notify the Railway's Division General Manager at 281-350-7781 and provide blasting plans to the Railway for review seven (7) calendar days prior to conducting any blasting operations adjacent to or on Railway's Property. • 1.03.03 The Contractor must abide by the following temporary clearances during construction: • 15' Horizontally from centerline of nearest track ■ 21'-6" Vertically above top of rail ■ 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts ■ 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts • 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts Bayou Willow Parkway—Exhibit C(10/06/09) 2 ■ 34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts • 1.03.04 Upon completion of construction,the following clearances shall be maintained: ■ 25' Horizontally from centerline of nearest track ■ 23'-3 %" Vertically above top of rail • 1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be submitted to the Railway and to the Beaumont ISD and must not be undertaken until approved in writing by the Railway, and until the Beaumont ISD has obtained any necessary authorization from the State Regulatory Authority for the infringement. No extra compensation will be allowed in the event the Contractor's work is delayed pending Railway approval,and/or the State Regulatory Authority's approval. • 1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing tell-tales or other protective devices Railway deems necessary for protection of Railway operations.The cost of tell-tales or protective devices will be borne by the Agency. • 1.03.07 The details of constriction affecting the Railway's Property and tracks not included in the contract plans must be submitted to the Railway by Beaumont ISD for approval before work is undertaken and this work must not be undertaken until approved by the Railway. • 1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a "Temporary Construction Crossing Agreement" from the Railway prior to moving his equipment or materials across the Railways tracks. The temporary crossing must be gated and locked at all times when not required for use by the Contractor. The temporary crossing for use of the Contractor will be constructed and, at the completion of the project, removed at the expense of the Contractor. • 1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum, constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately notify the Railway's Resource Operations Center at 1(800) 832-5452, of any discharge, release or spills in excess of a reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state analogue. 1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's representative. 1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan Each Contractor that will perform work within 25 feet of the centerline of a track must develop and 1.04.01 Eac t P P implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for all employees of the Contractor, its subcontractors, agents or invitees. This training is reinforced at the job site through job safety briefings. Additionally,each Contractor must develop and implement the Safety Action Plan, as provided for on the web site www.contractororientation.com, which will be made available to Railway prior to commencement of any work on Railway Property. During the performance of work, the Contractor must audit its work activities. The Contractor must designate an on-site Project Supervisor who will serve as the contact person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and Material Safety Datasheets(MSDS),at the job site. • Contractor shall have a background investigation performed on all of its employees, subcontractors and agents Bayou Willow Parkway—Exhibit C (10/06/09) 3 who will be performing any services on railroad property under this Agreement. The background screening shall at a minimum meet the criteria defined by the e-RAILSAFE program outlined at litter`/www.e-railtiafe.coui in addition to any other applicable regulatory requirements.The e-RAILSAFE program uses rail industry background screening standards. Contractor shall obtain consent from all employees screened in compliance with the e-IAILSAFE program criteria to release completed background information to BNSF. Contractor shall be subject to periodic audit to ensure compliance. Contractor shall not permit any of its employees, subcontractors or agents to perform services on property hereunder who are not approved under e-RAILSAFE program standards. Railroad shall have the right to deny entry onto its premises to any of Contractor's employees,subcontractors or agents who do not display the authorized identification badge issued by a background screening service meeting the standards set forth for the e-RAILSAFE program or who pose a threat, in Railroad's reasonable opinion,to the safety or security of Railroad's operations. Contractors shall ensure its employees, subcontractors and agents are United States citizens or legally working in this country under a work VISA. 1.05 Railway Flagger Services: • 1.05.01 The Contractor must give Railway's Roadmaster Aaron Whitney at 337-572-2502 (office #) or 337- 303-4589 (cell #) a minimum of thirty (30) calendar days advance notice when flagging services will be required so that the Roadmaster can make appropriate arrangements (i.e., bulletin the flagger's position). If flagging services are scheduled in advance by the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary, the Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements can be made to abolish the position pursuant to union requirements. • 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger will be required and furnished when Contractor's work activities are located over, under and/or within twenty-five (25) feet measured horizontally from centerline of the nearest track and when cranes or similar equipment positioned beyond 25-feet from the track centerline could foul the track in the event of tip over or other catastrophic occurrence,but not limited thereto for the following conditions: • 1.05.02a When,upon inspection by Railway's Representative,other conditions warrant. • 1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's representative, track or other Railway facilities may be subject to movement or settlement. • 1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds. • 1.05.02d When any hazard is presented to Railway track, communications, signal, electrical, or other facilities either due to persons,material,equipment or blasting in the vicinity. • 1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable. • 1.05.03 Flagging services will be performed by qualified Railway flaggers. • 1.05.03a Flagging crew generally consists of one employee. However,additional personnel may be required to protect Railway Property and operations, if deemed necessary by the Railways Representative. • 1.05.03b Each time a flagger is called,the minimum period for billing will be the eight (8)hour basic day. • 1.05.03c The cost of flagger services provided by the Railway will be borne by the CONTRACTOR. The Bayou Willow Parkway—Exhibit C (10/06/09) 4 I estimated cost for one (1) flagger is approximately $800.00 for an eight (8) hour basic day with time and one- half or double time for overtime, rest days and holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare benefits, vehicle, transportation, meals, lodging, radio, equipment, supervision and other costs incidental to performing flagging services. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. THE FLAGGING RATE IN EFFECT AT THE TIME OF PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF FLAGGING PURSUANT TO THIS PARAGRAPH. • 1.05.03d The average train traffic on this route is 2 freight trains per 24-hour period at a timetable speed 20 MPH and no passenger trains. 1.06 Contractor General Safety Requirements • 1.06.01 Work in the proximity of railway track(s)is potentially hazardous where movement of trains and equipment can occur at any time and in any direction. All work performed by contractors within 25 feet of any track must be in compliance with FRA Roadway Worker Protection Regulations. • 1.06.02 Before beginning any task on Railway Property, a thorough J ob safe ty briefin g must be conducted with all personnel involved with the task and repeated when the personnel or task changes. If the task is within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable, and include the procedures the Contractor will use to protect its employees, subcontractors, agents or invitees from moving any equipment adjacent to or across any Railway track(s). • 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety strategy approved by the Railway's Project Representative. When authority is provided, every contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2) limits of the authority,(3)the method of communication to stop and resume work,and(4) location of the designated places of safety. Persons or equipment entering flag/work limits that were not previously job briefed, must notify the flagger immediately, and be given a job briefing when working within 25 feet of the center line of track. • 1.06.04 When Contractor employees are required to work on the Railway Property after normal working hours or on weekends, the Railroad's representative in charge of the project must be notified. A minimum of two employees must be present at all times. • 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under the influence of drugs or alcohol, or in the possession of same,will be removed from the Railway's Property and subsequently released to the custody of a representative of Contractor management. Future access to the Railway's Property by that employee will be denied. • 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported immediately to the Railway's representative in charge of the project. Any vehicle or machine which may come in contact with track, signal equipment, or structure (bridge) and could result in a train derailment must be reported immediately to the Railway representative in charge of the project and to the Railway's Resource Operations Center at 1(800) 832-5452. Local emergency numbers are to be obtained from the Railway representative in charge of the project prior to the start of any work and must be posted at the job site. • 1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or other deadly weapons in their possession while working on Railway's Property. • 1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet applicable OSHA and ANSI specifications. Current Railway personnel protective equipment requirements are listed on the web site, www.coutractororieut.ition.corn, however, a partial list of the requirements include: a) safety glasses with pennanently affixed side shields (no yellow lenses); b) hard hats c) safety shoe with: hardened toes, Bayou Willow Parkway—Exhibit C (10/06/09) 5 above-the-ankle lace-up and a defined heel; and d) high visibility retro-reflective work wear. The Railroad's representative in charge of the project is to be contacted regarding local specifications for meeting requirements relating to hi-visability work wear. Hearing protection, fall protection,gloves, and respirators must be worn as required by State and Federal regulations. (NOTE—Should there be a discrepancy between the information contained on the web site and the information in this paragraph,the web site will govern.) • 1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR EQUIPMENT CLOSER THAN 25'-0" TO THE CENTER LINE OF THE NEAREST RAILWAY TRACK. MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT WITHIN 250 FEET OF ANY HIGHWAY/RAIL AT-GRADE CROSSINGS OR TEMPORARY CONSTRUCTION CROSSING, WHERE STORAGE OF THE SAME WILL OBSTRUCT THE VIEW OF A TRAIN APPROACHING THE CROSSING. PRIOR TO BEGINNING WORK, THE CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH CONCURRENCE OF THE RAILROAD'S REPRESENTATIVE. • 1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and secured against movement. (See internet Engineering Contractor Safety Orientation program for more detailed specifications) 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water drainage. Any work performed over water must meet all Federal,State and Local regulations. • 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary by proper authority. For all power lines the minimum clearance between the lines and any part of the equipment or load must be;200 KV or below - 15 feet; 200 to 350 KV-20 feet; 350 to 500 KV-25 feet; 500 to 750 KV-35 feet; and 750 to 1000 KV-45 feet. If capacity of the line is not known, a minimum clearance of 45 feet must be maintained. A person must be designated to observe clearance of the equipment and give a timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual means. 1.07 Excavation • 1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines,electric wires, or cables, including fiber optic cable systems are present and located within the Project work area. The Contractor must determine whether excavation on Railway's Property could cause damage to buried cables resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may cause business interruptions involving loss of revenue and profits. Before commencing excavation, the Contractor must contact BNSF's Roadmaster Aaron Whitney at 337-572-2502 and BNSF's Signal- Construction Supervisor Dwayne Tiffin at 817-740-7384. All underground and overhead wires will be considered HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is the Contractor's responsibility to notify any other companies that have underground utilities in the area and arrange for the location of all underground utilities before excavating. • 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and the owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there is any doubt about the location of underground cables or lines of any kind, no work must be performed until the exact location has been determined. There will be no exceptions to these instructions. • 1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and, regardless of depth,must be shored where there is any danger to tracks, structures or personnel. • 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or protected when not being worked on. When leaving work site areas at night and over weekends, the areas must Bayou Willow Parkway—Exhibit C (10/06/09) 6 be secured and left in a condition that will ensure that Railway employees and other personnel who may be working or passing through the area are protected from all hazards. All excavations must be back tilled as soon as possible. 1.08 Hazardous Waste, Substances and Material Reporting • 1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious material, including but not limited to any non-containerized commodity or material,on or adjacent to Railway's Property, in or near any surface water, swamp, wetlands or waterways, while performing any work under this Agreement, Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1(800) 832-5452, of such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents and/or third parties: and(c) exercise due care with respect to the release,including the taking of any appropriate measure to minimize the impact of such release. 1.09 Personal Injury Reporting 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad Administration(FRA)reporting requirements. Any personal injury sustained by an employee of the Contractor, subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately(by phone mail if unable to contact in person)to the Railway's representative in charge of the project. The Non-Employee Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the Railway's Project Representative no later than the close of shift on the date of the injury. Bayou Willow Parkway—Exhibit C(10/06/09) 7 NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IS NOT INTENDED TO PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY. 1. Accident City/St 2. Date: Time: County: 3. Temperature: 4. Weather (if non-Railway location) 5. Social Security# 6. Name(last,first,mi) 7. Address: Street: City: St. Zip: 8. Date of Birth: and/or Age Gender: (if available) 9. (a) Injury: (b)Body Part: (i.e. (a)Laceration(b) Hand) 11. Description of Accident(To include location,action,result,etc.): 12. Treatment: ? First Aid Only ? Required Medical Treatment ? Other Medical Treatment 13. Dr.Name 30.Date: 14. Dr. Address: Street: City: St: Zip: 15. Hospital Name: 16. Hospital Address: Street: City: St: Zip: 17. Diagnosis: FAX TO RAILWAY AT(817)352-7595 AND COPY TO RAILWAY ROADMASTER FAX 337-572-2595 RAILWAY MANAGER PUBLIC PROJECTS FAX(817)352-2912 Bayou Willow Parkway—Exhibit C(10/06/09) 8 LAW DEPARTMENT APPROVED EXHIBIT "C-1" Agreement Between BNSF RAILWAY COMPANY and the CONTRACTOR BNSF RAILWAY COMPANY Attention: Manager Public Projects Railway File: 023805K Agency Project: Bayou Willow Parkway (DOT No 023805K)—construct roadway approaches and construct new center medians Gentlemen: The undersigned (hereinafter called, the "Contractor"), has entered into a contract (the "Contract") dated 200 with the Beaumont Independent School District (ISD) for the performance of certain work in connection with the following project: Bayou Willow Parkway (DOT No. 023805K) — construct roadway approaches and construct new center medians. Performance of such work will necessarily require contractor to enter BNSF RAILWAY COMPANY ("Railway") right of way and property ("Railway Property"). The Contract provides that no work will be commenced within Railway Property until the Contractor employed in connection with said work for the Beaumont ISD (i) executes and delivers to Railway an Agreement in the form hereof, and (ii) provides insurance of the coverage and limits specified in such Agreement and Section 3 herein. If this Agreement is executed by a party who is not the Owner, General Partner, President or Vice President of Contractor, Contractor must furnish evidence to Railway certifying that the signatory is empowered to execute this Agreement on behalf of Contractor. Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property and as an inducement for such entry, Contractor, effective on the date of the Contract, has agreed and does hereby agree with Railway as follows: Section 1. RELEASE OF LIABILITY AND INDEMNITY Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments, awards, claims,demands,and expenses(including attorneys'fees), for injury or death to all persons,including Railway's and Contractor's officers and employees, and for loss and damage to property belonging to any person, arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work performed on or about Railway's property or right-of-way. THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF RAILWAY. THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE LOCOMOTIVE INSPECTION ACT,WHENEVER SO CLAIMED. Bayou Willow Parkway C-1 (10/06/09) 1 (Revised 06-2008,Exhibit C-1) Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle all claims made against Railway, and will, at Railway's discretion, appear and defend any suits or actions of law or in equity brought against Railway on any claim or cause of action arising or growing out of or in any manner connected with any liability assumed by Contractor under this Agreement for which Railway is liable or is alleged to be liable. Railway will give notice to Contractor, in writing, of the receipt or dependency of such claims and thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the event of a suit being brought against Railway, Railway may forward summons and complaint or other process in connection therewith to Contractor, and Contractor, at Railway's discretion, must defend, adjust,or settle such suits and protect, indemnify, and save harmless Railway from and against all damages,judgments, decrees, attorney's fees, costs, and expenses growing out of or resulting from or incident to any such claims or suits. In addition to any other provision of this Agreement, in the event that all or any portion of this Article shall be deemed to be inapplicable for any reason, including without limitation as a result of a decision of an applicable court, legislative enactment or regulatory order, the parties agree that this Article shall be interpreted as requiring Contractor to indemnify Railroad to the fullest extent permitted by applicable law. THROUGH THIS AGREEMENT THE PARTIES EXPRESSLY INTEND FOR CONTRACTOR TO INDEMNIFY RAILROAD FOR RAILROAD'S ACTS OF NEGLIGENCE. It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in this Agreement survive any termination of this Agreement. Section 2.TERM This Agreement is effective from the date of the Contract until (i) the completion of the project set forth herein, and (ii) full and complete payment to Railway of any and all sums or other amounts owing and due hereunder. Section 3. INSURANCE Contractor must,at its sole cost and expense,procure and maintain during the life of this Agreement the following insurance coverage: A. Commercial General Liability insurance. This insurance must contain broad form contractual liability with a combined single limit of a minimum of$2,000,000 each occurrence and an aggregate limit of at least $4,000,000. Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and include coverage for,but not limit to the following: ♦ Bodily Injury and Property Damage ♦ Personal Injury and Advertising Injury ♦ Fire legal liability ♦ Products and completed operations This policy must also contain the following endorsements, which must be indicated on the certificate of insurance: ♦ It is agreed that any workers' compensation exclusion does not apply to Railroad payments related to the Federal Employers Liability Act or a Railroad Wage Continuation Program or similar programs and any payments made are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law. ♦ The definition of insured contract must be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. ♦ Any exclusions related to the explosion, collapse and underground hazards must be removed. No other endorsements limiting coverage as respects obligations under this-Agreement may be included on the policy. Bayou Willow Parkway C-1 (10/06/09) 2 (Revised 06-2008,Exhibit C-1) B. Business Automobile Insurance. This insurance must contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for,but not limited to the following: ♦ Bodily injury and property damage ♦ Any and all vehicles owned,used or hired C. Workers Compensation and Employers Liability insurance including coverage for,but not limited to: ♦ Contractor's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. ♦ Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit,$500,000 by disease each employee. D. Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at least $2,000,000 per occurrence and$6,000,000 in the aggregate. The policy Must be issued on a standard ISO form CG 00 35 10 93 and include the following: ♦ Endorsed to include the Pollution Exclusion Amendment(ISO form CG 28 31 10 93) ♦ Endorsed to include the Limited Seepage and Pollution Endorsement. ♦ Endorsed to remove any exclusion for punitive damages. ♦ No other endorsements restricting coverage may be added. ♦ The original policy must be provided to the Railroad prior to performing any work or services under this Agreement Other Requirements: All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and certificates of insurance must reflect that no exclusion exists. Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad. In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation, endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under contractor's care, custody or control. Contractor's insurance policies through policy endorsement, must include wording which states that the policy is primary and non-contributing with respect to any insurance carried by Railroad. The certificate of insurance must reflect that the above wording is included in evidenced policies. All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective) must include a severability of interest endorsement and Railroad must be named as an additional insured with respect to work performed under this agreement. Severability of interest and naming Railroad as additional insured must be indicated on the certificate of insurance. Contractor is not allowed to self-insure without the prior written consent of Railroad. If granted by Railroad, any deductible, self-insured retention or other financial responsibility for claims must be covered directly by contractor in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by contractor's insurance will be covered as if contractor elected not to include a deductible,self-insured retention or other financial responsibility for claims. Prior to commencing the Work, contractor must furnish to Railroad an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) must contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any cancellation, non-renewal, substitution or material alteration. This cancellation Bayou Willow Parkway C-1 (10/06/09) 3 (Revised 06-2008,Exhibit C-1) provision must be indicated on the certificate of insurance. Upon request from Railroad, a certified duplicate original of any required policy must be furnished. Contractor should send the certificate(s) to the following address: Ebix BPO PO Box 12010-BN Hemet CA 92546-8010 Fax number: 951-766-2299 Any insurance policy must be written by a reputable insurance company acceptable to Railroad or with a current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provide. Contractor represents that this Agreement has been thoroughly reviewed by contractor's insurance agent(s)/broker(s), who have been instructed by contractor to procure the insurance coverage required by this Agreement. Allocated Loss Expense must be in addition to all policy limits for coverages referenced above. Not more frequently than once every five years,Railroad may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be subcontracted by contractor, contractor must require that the subcontractor provide and maintain the insurance coverages set forth herein, naming Railroad as an additional insured, and requiring that the subcontractor release, defend and indemnify Railroad to the same extent and under the same terms and conditions as contractor is required to release,defend and indemnify Railroad herein, Failure to provide evidence as required by this section will entitle, but not require,Railroad to terminate this Agreement immediately. Acceptance of a certificate that does not comply with this section will not operate as a waiver of contractor's obligations hereunder. The fact that insurance(including, without limitation, self-insurance) is obtained by contractor will not be deemed to release or diminish the liability of contractor including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad will not be limited by the amount of the required insurance coverage. For purposes of this section, Railroad means "Burlington Northern Santa Fe Corporation", `BNSF RAILWAY COMPANY"and the subsidiaries,successors,assigns and affiliates of each. Section 4. EXHIBIT"C"CONTRACTOR REQUIREMENTS The Contractor must observe and comply with all provisions, obligations, requirements and limitations contained in the Contract,and the Contractor Requirements set forth on Exhibit"C"attached to the Contract and this Agreement, , including, but not be limited to, payment of all costs incurred for any damages to Railway roadbed, tracks, and/or appurtenances thereto,resulting from use,occupancy, or presence of its employees,representatives, or agents or subcontractors on or about the construction site. Section 5. TRAIN DELAY Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from loss of use of equipment,contractual loss of incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay. Bayou Willow Parkway C-1 (10/06/09) 4 (Revised 06-2008,Exhibit C-1) For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same time for the same period. Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s). Under these arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a train delay caused by Contractor or its subcontractors. The contractual relationship between Railway and its customers is proprietary and confidential. In the event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the extent consistent with Railway confidentiality obligations. Damages for train delay are currently $382.20 per hour per incident. THE RATE THEN IN EFFECT AT THE TIME OF PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF TRAIN DELAY PURSUANT TO THIS AGREEMENT. Contractor and its subcontractors must give Railway's Roadmaster (Patrick McAleese) 4 weeks advance notice of the times and dates for proposed work windows. Railway and Contractor will establish mutually agreeable work windows for the project. Railway has the right at any time to revise or change the work windows due to train operations or service obligations. Railway will not be responsible for any additional costs or expenses resulting from a change in work windows. Additional costs or expenses resulting from a change in work windows shall be accounted for in Contractor's expenses for the project. Contractor and subcontractors must plan, schedule,coordinate and conduct all Contractor's work so as to not cause any delays to any trains. Kindly acknowledge receipt of this letter by signing and returning to the Railway two original copies of this letter,which,upon execution by Railway, will constitute an Agreement between us. (Contractor) BNSF Railway Company By: By: Printed Name: Name: Manager Public Projects Title: Contact Person: Accepted and effective this the day of 2009. Address: City: —State:—Zip:— Fax: Phone: E-mail: Bayou Willow Parkway C-1 (10/06/09) 5 (Revised 06-2008,Exhibit C-1) EXHIBIT D-RR Signal Cost Estimate «www+ MAINTAIN PROPRIETARY CONFIDENTIALITY ""+'• BNSF RAILWAY COMPANY FIIPM ESTIMATE FOR CITY OF BEAUMONT LOCATION BROOKS DETAILS OF ESTIMATE PLAN ITEM: PSI023805K VERSION; I PURPOSE,JUSTIFICATION AND DESCRIPTION INSTALL NEW GATES,FLASIIERS W/LED LENSES&BUNGALOW W/CONSTANT WARNING CIRCUITRY AT BAYOU WILLOW PARKWAY, DOT 023 805 K IN BEAUMONT,TX US 7505 MP 71.30 ON THE GULF DIV..SILSBEE SUBDIV. MONTI ILY POWER UTILITY COST CENTER: 61699 TI IE MATERIAL LIST BELOW REFLECTS TYPICAL REPRESENTIVE PACKAGES USED FOR ESTIMATING PURPOSE ONLY. TIIEY CAN BE EXPECTED TO CIIANGE AFTER TIIE ENGINEERING PROCESS.DETAILED AND ACCURATE MATERIAL LISTS WILL BE FURNISHED WIZEN ENGINEERING IS COMPLETED. CONTINUING CONTRACTS HAVE BEEN ESTABLISHED FOR PORTIONS OF SIGNAL WORK ON THE BNSF RAILROAD. TIIIS ESTIMATE IS GOOD FOR 90 DAYS.THEREAFTER T1IE ESTIMATE 1S SUBJECT TO CHANGE IN COST FOR LABOR,MATERIAL,AND OVERT IEAD. ++++aawr++rtw++a+++++++++++rtrrtr+SIGNAL WORK ONLY r+++++++++awwrt+++w+rt+ww++++rrw+ THE BEAUMONT INDEPENDENT SCHOOL DISTRICT IS FUNDING 100%OF THE PROJECT COST. MAINTAIN PROPRIETARY CONFIDENTIALITY DESCRIPTION QUANTITY U/M COST TOTAL$ wrt wr+++rwrt LABOR SIGNAL FIELD LABOR-CAP 952.0 M11 24,810 SIGNAL SIIOP LABOR-CAP 64.0 Mll 1,684 PAYROLL ASSOCIATED COSTS 18,227 EQUIPMENT EXPENSES 8,213 DA LABOR OVERHEADS 28,347 INSURANCE EXPENSES 4,238 TOTAL LABOR COST 85,519 85,519 +rta+w+rtr++w++ MATERIAL 3"STEEL CONDUIT 70.0 FT 1,190 BATTERY 1.0 LS N 4,540 BUNGALOW 6X6 1.0 EA N 8,612 BUNGALOW MATERIAL 1.0 LS N 5,260 CABLE 1.0 LS N 5,460 CHARGERS IA LS N 1,020 DBL SIDED X-BUCK 3.0 EA N 1,725 FIELD MATERIAL 1.0 LS N 4,920 FOUNDATIONS STEEL 3.0 EA N 2,121 GATE KEEPER 3.0 EA N 5,583 GATE MECII.MODEL 95 3.0 EA N 22,605 GENERATOR 1.0 EA N 6,128 IIXP3RSYSTEM 1.0 EA N 18,163 LED GATE KIT 3.0 EA N 990 LED LIGIIT ADJ 12.0 EA N 3,060 MATERIAL FOR ELECTRICAL 1.0 EA N 1,500 POLYPIPE 1.0 LS N 3,000 RECORDER 1.0 EA N 5,203 TELLULAR MONITOR 1.0 EA N 2,500 OFFLINE TRANSPORTATION 1,029 TOTAL MATERIAL COST 104,609 104,609 OTHER ar++rtaaa++ AC POWER SERVICE 1.0 EA N 5,000 CONTRACT BORING 1.0 LS N 25,000 CONTRACT ENGINEERING 1.0 LS N 5,000 FILL DIRT 100.0 CY N 2,500 SURFACE ROCK 25.0 CY N 625 TOTAL OTHER ITEMS COST 38,125 38,125 PROJECT SUBTOTAL 228,253 Page 1 of 2 0 CONTINGENCIES DILL PREPARATION FEE �,2H3 GROSS PROJECT COST 230,536 LESS COST PAID BY BNSF 0 TOTAL.BILLABLE COST 230.536 Page 2 of 2 i EXHIBIT D-RR Crossing Surface Cost Estimate MAINTAIN PROPRIETARY CONFIDENTIALITY BNSF RAILWAY COMPANY F11PM ESTIMATE FOR BISD LOCATION BROOKS TO BAYOU WILLOW PKWY DETAILS OF ESTIMATE PLAN ITEM: PTR023805K VERSION: I PURPOSE,JUSTIFICATION AND DESCRIPTION PIP-CROSSING-LS 7505-MP 71.3-DOT 023805K-BAYOU WILLOW PKWY-BEAUMONT,TX-SILSBEE SUB-GULF DIV-RDM WHITNEY- DE MCNABB DESCRIPTION OF PROJECT AS PROVIDED BY PROJECT ENGINEER:K.ADAMS 5/20/09 BNSF TO INSTALL ONE 56-FT CONCRETE CROSSING SURFACE ON BAYOUR WILLOW PARKWAY(DOT NO.023805K)IN BEAUMONT, TEXAS AT MP 71.30,LS 7505,SILSBEE SUBDIVISION,GULF DIVISION BISD WILL CONSTRUCT ROADWAY APPROACI IES TO TI IE NEW CROSSING. ADDED MOBILIZATION 5/28/09 BILLING FOR THIS PROJECT SHOULD BE DIRECTED TO: PROJECT IS 100%BILLABLE TO BEAUMONT INDEPENDENT SCHOOL DISTRICT MAINTAIN PROPRIETARY CONFIDENTIALITY THE PI IYSICAL LIMITS OF THIS PROJECT ARE DESCRIBED BY LINE SEGMENT,MILE POST RANGES,AND IN SOME CASES TRACK NUMBER.THIS IS TIIE PRIMARY AREA FOR THE PROJECT.THERE WILL BE CASES WHERE WORK MAY OCCUR BEYOND THE DEFINED LIMITS,PROJECTS THAT INCLUDE SIGNAL,ELECTRICAL,OR TELECOMMUNICATION EQUIPMENT MAY REQUIRE ACTIVITY BEYOND THESE DEFINED TRACK LIMITS.ALL OR PORTIONS OF SOME PROJECTS MAY OCCUR IN AREAS WHERE NO MILEPOST SIGNS EXIST SUCII AS YARDS,TIIIS ESTIMATE IS GOOD FOR 90 DAYS.THEREAFTER TIIE ESTIMATE IS SUBJECT TO CHANGE IN COST FOR LABOR, MATERIAL,ANDOVER]IEAD. DESCRIPTION QUANTITY U/M COST TOTAL 3 LABOR PLACE FIELD WELDS-CAP 96.0 Mll 2,186 PLACE PUBLIC CROSSING-CAP 68.0 Mil 1,477 PLACE TRACK PANELS-ADDITION-CAP 48.0 Mll 1,043 SURFACE TRACK-ADDITION-CAP 24.0 Mll 565 UNLOAD BALLAST-ADDITION-CAP 13.08 Mll 307 UNLOAD CROSSING MATERIAL-PUBLIC-CAP 15.0 Mll 332 UNLOAD TRACK PANELS-ADDITION 15.0 Mil 332 PAYROLL ASSOCIATED COSTS 4,291 EQUIPMENT EXPENSES 3,616 DA LABOR OVERHEADS 6.677 INSURANCE EXPENSES 996 TOTAL LABOR COST 21,822 21.822 ,,,rtrr rrr«rrr MATERIAL +,rrr+„r+rrr ASPHALT IN PLACE PER TON 50.0 NT NX 7,085 BALLAST,DAVIS OK (GU,TX,KSW) 200.0 NT+” 2,078 TRACK PANEL,136 LB 40 FT-10 FT TIES-PANDROL 3.0 EA " 14,619 RAIL,TRANSN,L11,25 FT,136-1/4 WORN 115 2.0 EA 2,817 RAIL,TRANSN,RI1,25 FT,136-1/4 WORN 115 2.0 EA 2,817 S1GN,CROSSING WIIISTLE,W/LETTER W 2.0 EA 9 WELDKIT,GENERIC FOR ALL RAIL WEIGI ITS 12.0 KT 852 CONC 136 08-SEC WITH FILLER FOR WOOD 56.0 FT 11,604 CONCRETE XING RAMP AND PANEL RESTRAINT, 1.0 ST 257 MATERIAL 11ANDLING 1,747 ONLINE TRANSPORTATION 2,000 OFFLINE TRANSPORTATION 398 TOTAL MATERIAL COST 46,283 46,283 rrr+rr,rrr OTHER GANG AND EQUIPMENT M0131LAZATION LO LS 5,500 LEASED EQUIPMENT W1TIlOPERATOR 1.0 LS 4,000 Page 1 of 2 TOTAL OTIIER ITEMS COST 9,500 9,500 PROJECT SUBTOTAL 77'605 CONTINGENCIES 7'760 BILL PREPARATION FEE K54 GROSS PROJECT COST 86,219 LESS COST PAID BY BNSF 0 TOTAL BILLABLE COST 86'219 Page 2 of 2 F RICH WITH OPPORTUNITY 11CM T • E • X • A • S City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tom Warner, Director of Public Works MEETING DATE: December 22, 2009 REQUESTED ACTION: Council consider authorizing the acceptance of two (2) water line easements. RECOMMENDATION The Administration recommends acceptance of two (2) water line easements to provide water services for Austin Middle School and Marshall Middle School. BACKGROUND Beaumont Independent School District has agreed to convey two (2) - ten (10) foot wide water line easements to the City of Beaumont. The easements will provide water services for the new additions at Austin Middle School (located at 3410 Austin Street) and Marshall Middle School (located at 6455 Gladys Avenue). BUDGETARY IMPACT None. \engmiddle-schools-ib 16 December 2009 RESOLUTION NO. WHEREAS, Beaumont Independent School District has agreed to convey two (2) ten-foot (10') wide water line easements, being situated in the H. Williams League, Abstracts No. 385 and 56, Beaumont, Jefferson County,Texas, as described in and shown on Exhibits "A" and "B" attached hereto, to the City of Beaumont to provide water services for new additions at Austin Middle School (3410 Austin Street)and Marshall Middle School (6455 Gladys Avenue); and, WHEREAS, the City Council has considered the purpose of said conveyance and is of the opinion that the acceptance of said conveyance is necessary and desirable and that same should be accepted; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the easements conveyed by Beaumont Independent School District, as described in and shown on Exhibits "A" and "B," be and the same are hereby accepted. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 22nd day of December, 2009. - Mayor Becky Ames - FAUST Engineering and Surveying, Inc. PROFESSIONAL ENGINEERS AND PROFESSIONAL SURVEYORS TELEPHONE(409)813-3410 E-MAIL ADDRESS INFO @FAUSTENG.COM FAx(409)813-3484 2525 CALDER STREET BEAUMONT,TEXAS 77702 FIELD NOTE DESCRIPTION FOR THE CENTERLINE OF A 10 FOOT WIDE EXCLUSIVE WATERLINE EASEMENT OUT OF THE H. WILLIAMS LEAGUE,ABSTRACT NO. 385 BEAUMONT, JEFFERSON COUNTY, TEXAS November 18, 2009 Being a 10 foot wide strip of land situated in the H. Williams League, Abstract No. 385, Jefferson County, Texas and being out of and part of a called 12.733 acre tract conveyed to Beaumont Independent School District as recorded in Volume 1050 Page 361 of the Deed Records of Jefferson County, Texas; said centerline of the 10 foot wide strip of land being more particularly described as follows: COMMENCING at a 1/2" iron rod found on the north right-of-way line of Austin Street at the intersection of the frontage road of Eastex Freeway same being the southeast corner of said 12.733 acre tract; THENCE South 86°54'52" West along said north right-of-way line of Austin Street, a distance of 504.00 feet to the POINT OF BEGINNING of the herein described 10 foot wide easement; THENCE 5 feet each side of the following described centerline; North 02°43'25" West, a distance of 222.00 feet to the point of termination of said 10 foot wide exclusive waterline easement. Page 1 EXHIBIT "A" LEGAL FOR EASEMENTS This description is based on the survey made by Richard F. Faust, P. E., Registered Professional Land Surveyor No. 4782 on April 1, 2009. Richard F. FaYist, P.E. � T ; Registered Professional Land Surveyor No. 4782 o Y6eM Page 2 A " 10 FOOT WIDE EXCLUSIVE WATERLINE EASEMENT OUT OF THE H. WILLIAMS SURVEY, ABSTRACT NO.385 BEAUMONT, JEFFERSON COUNTY, TEXAS SCALE 1"50' CALLED 12.733 ACRES B.1.S.D. AUSTIN MIDDLE SCHOOL VOL. 1050 PG. 361 D.R.J.C. PROPOSED FIRE HYDRANT r & VAL VE I I ED 10' WIDE PROPOS EXCLUSIVE WA TERLINE EASEMENT Z I W I I Z I I N 02'4325" W W o I 222.00' Ld o W v � lz o I I W H X � I I d tea C' o F- a�ii oI o (n J O BEGINNING F a POINT Ld Hra X i EN a & VAL VE FOUND 112" IRON ROD 66 54 52" W EXlST1NG 12" WATERLINE 504.00' AUSTIN STREET COMMENCING POINT RICHARD F. FAUST REGISTERED PROFESSIONAL LAND SURVEYOR NO. 4782 PREPARED BY: Date: NOVEMBER 18, 2009 OF Q G�STF9 f co Q. * FQ 9cp RICHAR)F.FAUST � 'O9 4782 P Q CFENGINEERING AND SURVEYING, INC. 9i1,,ORESS10�yO 2525 CALDER STREET BEAUMONT, TEXAS 77702 U Sul (409) 813-3410 w FAX (409) 813-3484 090143 FAUST Engineering and Surveying, Inc. PROFESSIONAL ENGINEERS AND PROFESSIONAL SURVEYORS TELEPHONE(409)813-3410 E-MAIL ADDRESS INFO @FAUSTENG.COM FAX(409)813-3484 2525 CALDER STREET BEAUMONT,TEXAS 77702 FIELD NOTE DESCRIPTION FOR THE CENTERLINE OF A IO FOOT WIDE EXCLUSIVE WATERLINE EASEMENT OUT OF THE H. WILLIAMS LEAGUE,ABSTRACT NO.56 BEAUMONT, JEFFERSON COUNTY, TEXAS November 20, 2009 Being a 10 foot wide strip of land situated in the H. Williams League, Abstract No. 56, Jefferson County, Texas and being out of and part of a called 16.00 acre tract conveyed to South Park I.S.D. ( now known as B.I.S.D.) as recorded in Volume 1226 Page 435 of the Deed Records of Jefferson County,Texas; said centerline of the 10 foot wide strip of land being more particularly described as follows: COMMENCING at a 1/2" iron rod found on the west right-of-way line of Dowlen Road same being the northeast corner of Sheraton Woods a subdivision of record in Volume 10 Page 196 of the Map Records of Jefferson County, Texas. THENCE North 00 010'30" East along said west right-of-way line of Dowlen Road, a distance of 229.36 feet to a point; THENCE North 00°25'15" West continuing along said west right-of- way line of Dowlen Road, a distance of 67.00 feet to the POINT OF BEGINNING of the herein described 10 foot wide easement; THENCE 5 feet each side of the following described centerline; South 89°38'43" West, a distance of 321.00 feet to the point of termination of said 10 foot wide exclusive waterline easement. Page 1 EXHIBIT "B" LEGAL FOR EASEMENTS This description is based on the survey made by Richard F. Faust, P. E., Registered Professional Land Surveyor No. 4782 on April 30, 2009. w Richard F. gust, P. p N Registered Professional Land Surveyor No. 4782 A f . . Page 2 A N 10 FOOT WIDE EXCLUSIVE WATERLINE EASEMENT OUT OF THE H. WILLIAMS SURVEY, ABSTRACT NO.56 BEAUMONT, JEFFERSON COUNTY, TEXAS SCALE 1" 6,0' r POINT OF PROPOSED PROPOSED BEGINNING FIRE HYDRANT 10" WIDE EXCL US/VE WA TERLINE & VA VE EASEMENT i PROPOSED 6' C-900 WATERLINE I S 89 38'43'" W N 0025'75" W 521.00" 6700' I CALLED 16.008 ACRES B.I.S.D. MARSHALL MIDDLE SCHOOL VOL. 1226 PG. 435 D.R.J.C. ti Ld N � Q ° Z J EXISTING O FIRE HYDRANT i 0 & VAL VF I PROPERTY LINE d FOUND 112 SHERATON WOODS /RO/V ROD VOL.10 PG.196 M.R.J.C. COMMENCING POINT RICHARD F. FAUST REGISTERED PROFESSIONAL LAND SURVEYOR NO. 4782 PREPARED BY: Date: NOVEMBER 20, 2009 OF Q G�5TF9 AZRICHARD F.FAUST °9 4782 Qy Q ENGINEERING AND SURVEYING, INC. 9�ji�SUI; yO 2525 CALDER STREET R BEAUMONT, TEXAS 77702 SUFt`� (409) 913-3410 + FAX (409) 813-3484 090192 G RICH WITH OPPORTUNITY 1117LA, ( T • E • X • A • s City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Jim Thompson, Parks and Recreation Director MEETING DATE: December 22, 2009 REQUESTED ACTION: Council consider authorizing the City Manager to renew an agreement for the use of the stables at Tyrrell Park. RECOMMENDATION The Administration recommends approval. BACKGROUND On June 30, 2009, the City Manager was authorized to execute an agreement with Danielle Sams for the use of the Tyrrell Park Stables property. This agreement requires Mrs. Sams to clean, improve, and maintain the barn property and its associated grounds and pastures located north of the stables road. The Parks and Recreation Department has responsibility for all of the property south of the stables road and has an office there. Mrs. Sams is meeting her obligations under the agreement and has put substantial work into cleaning up the property which is now noticeably more attractive and well kept. Mrs. Sams will continue interior and exterior improvements to the property, so that she may develop a sustainable stables operation there. The agreement provides for six month renewal periods by agreement of the parties and contains a 30 day cancellation clause. Based on satisfactory performance, Mrs. Sams is requesting that the agreement be renewed. The riding trails will continue to remain open to the general public. BUDGETARYIMPACT Mrs. Sams will pay for her utilities and $350 per month for rent. Agreement between the City of Beaumont and Danielle Sams for the use of Tyrrell Park Stables Property In order to allow and support equestrian and stables related activities,the City agrees to allow Danielle Sams access to the Tyrrell Park Stables property subject to the conditions detailed below. Property Description Barn Property- Mrs. Sams will control the barn and its associated pastures north of the stables road to Downs Road extended. Term This agreement will have a term of six months and may be extended for additional six month periods by agreement of the parties. Insurance Mrs. Sams will acquire$1,000,000 in liability insurance with the city named as an Additional Insured prior to the commencement of equestrian activities. Clean Up and Move In Mrs. Sams will clean up the property under her control within 60 days from the date of execution. The stnictural elements will be cleaned, repaired, and painted. The grounds will be mowed and cleared. Such clean up will be completed before ongoing equestrian activities begin. Payment Mrs. Sams will pay the City$350 per month for rent and be responsible for the utilities for the Barn Property. The rent is due at the first of the month and late on the 10`x'. Utility payments will be invoiced and paid with the next rental payment. The City's Cash Management Office will issue payment instructions. Maintenance Barn Property and Pastures- Mrs. Sams will clean and maintain the grounds, structures, and fences. Cancellation This agreement may be cancelled by either party with 30 days written notice delivered in person or by certified mail, return receipt requested, to the addresses listed below. Executed by the parties this day of 1v , 2009. Kyle Hayes, City Manager Danielle Sams 801 Main Street, Suite 300 445 Jon's Str t Beaumont, Texas 77701 Bridge , Texas 77611 ti RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to renew the agreement with Danielle Sams for use of the Tyrrell Park Stables property for a period of six (6) months. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 22nd day of December, 2009. - Mayor Becky Ames - I H RICH WITH OPPORTUNITY 1117CA,111�lul T • E . X • A • S City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Ingrid Holmes, Public Health Director MEETING DATE: December 22, 2009 REQUESTED ACTION: Council consider authorizing the City Manager to execute all documents necessary to accept funding from the Department of State Health Services (D.S.H.S.) for the Sexually Transmitted Disease (S.T.D.) Syphilis Elimination Division. RECOMMENDATION Administration recommends Council approval. BACKGROUND The Texas Department of State Health Services(D.S.H.S.)has awarded the Beaumont Public Health Department grant funds for the S.T.D. Syphilis Elimination Division in the amount of$41,600.00. This contract begins 01/01/2010 and ends on 12/31/2010. BUDGETARY IMPACT There is not a match requirement from the City. I DEPARTMENT OF STATE HEALTH SERVICES (1 0 This contract, number 2010-034497 (Contract), is entered into by and between the Department of State Health Services (DSHS or the Department), an agency of the State of Texas, and BEAUMONT PUBLIC HEALTH DEPARTMENT (Contractor), a Government Entity, (collectively, the Parties). 1. Purpose of the Contract. DSHS agrees to purchase, and Contractor agrees to provide, services or goods to the eligible populations as described in the Program Attachments. 2. Total Amount of the Contract and Payment Method(s). The total amount of this Contract is $41,600.00, and the payment method(s) shall be as specified in the Program Attachments. 3. Funding Obligation. This Contract is contingent upon the continued availability of funding. If funds become unavailable through lack of appropriations, budget cuts, transfer of funds between programs or health and human services agencies, amendment to the Appropriations Act, health and human services agency consolidation, or any other disruptions of current appropriated funding for this Contract, DSHS may restrict,reduce, or terminate funding under this Contract. 4. Term of the Contract. This Contract begins on 01/01/2010 and ends on 12/31/2010. DSHS has the option, in its sole discretion, to renew the Contract as provided in each Program Attachment. DSHS is not responsible for payment under this Contract before both parties have signed the Contract or before the start date of the Contract, whichever is later. 5. Authority. DSHS enters into this Contract under the authority of Health and Safety Code, Chapter 1001. 6. Documents Forming Contract. The Contract consists of the following: a. Core Contract(this document) b. Program Attachments: 2010-034497-001 STD Syphilis Elimination Texas—Jefferson County c. General Provisions (Sub-recipient) d. Solicitation Document(s), and e. Contractor's response(s) to the Solicitation Document(s). f. Exhibits Any changes made to the Contract, whether by edit or attachment, do not form part of the Contract unless expressly agreed to in writing by DSHS and Contractor and incorporated herein. 92648-1 0 7. Conflicting Terms. In the event of conflicting terms among the documents forming this Contract, the order of control is first the Core Contract, then the Program Attachment(s), then the General Provisions, then the Solicitation Document, if any, and then Contractor's response to the Solicitation Document,if any. 8. Payee. The Parties agree that the following payee is entitled to receive payment for services rendered by Contractor or goods received under this Contract: Name: CITY OF BEAUMONT Address: PO BOX 3827 BEAUMONT, TX 77704-3827 Vendor Identification Number: 17460002789023 9. Entire Agreement. The Parties acknowledge that this Contract is the entire agreement of the Parties and that there are no agreements or understandings, written or oral, between them with respect to the subject matter of this Contract, other than as set forth in this Contract. By signing below, the Parties acknowledge that they have read the Contract and agree to its terms, and that the persons whose signatures appear below have the requisite authority to execute this Contract on behalf of the named party. DEPARTMENT OF STATE HEALTH SERVICES BEAUMONT PUBLIC HEALTH DEPARTMENT B B Y Y• Signature of Authorized Official Signature Date Date Bob Burnette,C.P.M., CTPM Printed Name and Title Director,Client Services Contracting Unit Address 1100 WEST 49TH STREET AUSTIN, TEXAS 78756 City, State,Zip (512)458-7470 Telephone Number Bob.Bumette@dshs.state.tx.us E-mail Address for Official Correspondence 92648-I 2010-034497-001 Categorical Budget: PERSONNEL $0.00 FRINGE BENEFITS $0.00 TRAVEL $0.00 EQUIPMENT $0.00 SUPPLIES $0.00 CONTRACTUAL $41,600.00 OTHER $0.00 TOTAL DIRECT CHARGES $41,600.00 INDIRECT CHARGES $0.00 TOTAL $41,600.00 DSHS SHARE $41,600.00 CONTRACTOR SHARE $0.00 OTHER MATCH $0.00 Total reimbursements will not exceed $41,600.00 Financial status reports are due: 04/30/2010, 07/30/2010, 11/01/2010, 03/01/2011 RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to execute all documents necessary to accept funding in the amount of$41,600 from the Department of State Health Services (D.S.H.S.) for the Sexually Transmitted Disease Syphilis Elimination Division. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 22nd day of December, 2009. - Mayor Becky Ames - 1 RICH WITH OPPORTUNITY 17C T . E • X • A . S City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Ingrid Holmes, Public Health Director MEETING DATE: December 22, 2009 REQUESTED ACTION: Council consider authorizing the City Manager to execute all documents necessary to accept funding from the Department of State Health Services (D.S.H.S.) for the Tuberculosis Elimination Division. RECOMMENDATION Administration recommends Council approval. BACKGROUND The Texas Department of State Health Services(D.S.H.S.)has awarded the Beaumont Public Health Department grant funds for the Tuberculosis Elimination Division in the amount of$75,000. This contract begins 09/01/2009 and ends on 08/31/2010. BUDGETARYIMPACT There is not a match requirement from the City. DEPARTMENT OF STATE HEALTH SERVICES (0 This contract, number 2010-032484 (Contract), is entered into by and between the Department of State Health Services (DSHS or the Department), an agency of the State of Texas, and BEAUMONT PUBLIC HEALTH DEPARTMENT (Contractor), a Government Entity, (collectively,the Parties). 1. Purpose of the Contract. DSHS agrees to purchase, and Contractor agrees to provide, services or goods to the eligible populations as described in the Program Attachments. 2. Total Amount of the Contract and Payment Method(s). The total amount of this Contract is $75.000.00, and the payment method(s) shall be as specified in the Program Attachments. 3. Funding Obligation. This Contract is contingent upon the continued availability of funding. If funds become unavailable through lack of appropriations, budget cuts, transfer of funds between programs or health and human services agencies, amendment to the Appropriations Act, health and human services agency consolidation, or any other disruptions of current appropriated funding for this Contract, DSHS may restrict,reduce,or terminate funding under this Contract. 4. Term of the Contract. This Contract begins on 09/01/2009 and ends on 08/31/2010. DSHS has the option, in its sole discretion, to renew the Contract as provided in each Program Attachment. DSHS is not responsible for payment under this Contract before both parties have signed the Contract or before the start date of the Contract, whichever is later. 5. Authority. DSHS enters into this Contract under the authority of Health and Safety Code, Chapter 1001. 6. Documents Forming Contract. The Contract consists of the following: a. Core Contract(this document) b. Program Attachments: 2010-032484-001 HSR 6/5S-TBPC c. General Provisions (Sub-recipient) d. Solicitation Document(s), and e. Contractor's response(s) to the Solicitation Document(s). f. Exhibits Any changes made to the Contract, whether by edit or attachment, do not form part of the Contract unless expressly agreed to in writing by DSHS and Contractor and incorporated herein. 92645-1 I i 7. Conflicting Terms, In the event of conflicting terms among the documents forming this Contract, the order of control is first the Core Contract, then the Program Attachment(s), then the General Provisions, then the Solicitation Document, if any, and then Contractor's response to the Solicitation Document, if any. 8. Payee. The Parties agree that the following payee is entitled to receive payment for services rendered by Contractor or goods received under this Contract: Name: CITY OF BEAUMONT Address: PO BOX 3827 BEAUMONT, TX 77704-3827 Vendor Identification Number: 17460002789023 9. Entire Agreement. The Parties acknowledge that this Contract is the entire agreement of the Parties and that there are no agreements or understandings, written or oral, between them with respect to the subject matter of this Contract, other than as set forth in this Contract. By signing below, the Parties acknowledge that they have read the Contract and agree to its terms, and that the persons whose signatures appear below have the requisite authority to execute this Contract on behalf of the named party. DEPARTMENT OF STATE HEALTH SERVICES BEAUMONT PUBLIC HEALTH DEPARTMENT By: By: Signature of Authorized Official Signature Date Date Bob Burnette, C.P.M., CTPM Printed Name and Title Director, Client Services Contracting Unit Address 1100 WEST 49TH STREET AUSTIN, TEXAS 78756 City, State,Zip (512)458-7470 Telephone Number B ob.B urnette @ dshs.state.tx.us E-mail Address for Official Correspondence 92648-I EXHIBIT A Applicant shall describe its plan for service delivery to the population in the proposed service area(s)and include time lines for accomplishments. The work plan shall address the needs and the problems identified in the community assessment for improving health status. The plan shall: 1. Summarize the proposed services,service area, population to be served, location (counties to be served),etc. List subcontractors you will work with in your area. Also, address if and how you will serve individuals from counties outside your stated service area. 2. Describe delivery systems,workforce(attach organizational chart),policies,support systems (i.e.,training, research,technical assistance, information,financial and administrative systems) and other infrastructure available to achieve service delivery and policy-making activities. What resources do you have to perform the project,who will deliver services and how will they be delivered? 3. Determine the number of persons annually who received from the CONTRACTOR at least one TB service including but not limited to tuberculin skin tests,chest radiographs, health care worker services,or treatment with one or more anti-tuberculosis medications. 4. Describe how data is collected and tabulated, who will be responsible for data collection and reporting, and how often data collection activities will occur. Describe how you will conduct community surveillance,to identify unreported cases of TB and individuals suspected of having TB infection. Describe how you will maintain a record of outbreaks, in your area, with a description of the outbreak and how it was managed. 5. Describe coordination with the other health and human services providers in the service area(s)and delineate how duplication of services is to be avoided. List other community programs you will be working with in your jurisdiction (community based organizations, private providers, hospitals, and service organizations). 6. Describe ability to provide services to culturally diverse populations (e.g., use of interpreter services, language translation,compliance with ADA requirements, location, hours of service delivery, and other means to ensure accessibility for the defined population). 7. Describe your strategy for the management of TB cases and suspects,with emphasis on provision of directly observed therapy(DOT). 8. Describe your strategy for the management of contacts and positive reactors,with emphasis on directly observed preventive therapy (DOPT). 9. Describe your infection control procedures. 10. Describe plans to conduct targeted TB screening programs for high-risk populations. 11. Describe your strategy to provide professional education and training programs for new and current TB staff. 12. Describe the internal program evaluation process utilized to monitor services, identify staff that utilize them and who is responsible for ensuring they are updated. The description shall include the following 1) role of a program evaluation committee;2) medical director's involvement in the program evaluation activities;3) activities utilized to identify trends of needed improvement and the frequency of those activities;4) activities to ensure correction and follow-up to findings identified;5) utilization and frequency of client satisfaction surveys; 6) system utilized to identify and monitor adverse outcomes;7)process for identifying performance and outcome measures; and 8) process utilized to develop protocols and standing delegation orders. 13. Describe your strategy to document the evaluation of immigrants and refugees with the following notifications:Class A(Applicants who have tuberculosis disease diagnosed[sputum smear positive or culture positive]and require treatment overseas but who have been granted a waiver to travel prior to the completion of therapy.);Class B1 —Pulmonary(No treatment:-Applicants who have medical history,physical exam,or CXR findings suggestive of pulmonary tuberculosis but have negative AFB sputum smears and cultures and are not diagnosed with tuberculosis or can wait to have tuberculosis treatment started after immigration. Completed treatment:-Applicants who were diagnosed with pulmonary tuberculosis and successfully completed directly observed therapy prior to immigration.); Class B1 —Extrapulmonary(evidence of extrapulmonary tuberculosis);Class B2(LTBI Evaluation—Applicants who have a tuberculin skin test Z 10 mm but who otherwise have a negative evaluation for tuberculosis.);Class B3(Contact Evaluation—applicants who are a contact of a known tuberculosis case. 2010-032484-001 Categorical Budget: PERSONNEL $46,350.00 FRINGE BENEFITS $22,843.00 TRAVEL $0.00 EQUIPMENT $0.00 SUPPLIES $807.00 CONTRACTUAL $5,000.00 OTHER $0.00 TOTAL DIRECT CHARGES $75,000.00 INDIRECT CHARGES $0.00 TOTAL $75,000.00 DSHS SHARE $75,000.00 CONTRACTOR SHARE $0.00 OTHER MATCH $0.00 Total reimbursements will not exceed $75,000.00 n !9/3 i,�nnn Financial status reports are due: 2 AS8, 2889, � _=, __,____ RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to execute all documents necessary to accept funding in the amount of$75,000 from the Department of State Health Services (D.S.H.S.) for the Tuberculosis Elimination Division. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 22nd day of December, 2009. - Mayor Becky Ames - J RICH WITH OPPORTUNITY r T • E • x • A • S City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tom Warner, Director of Public Works MEETING DATE: December 29, 2009 REQUESTED ACTION: Council consider a resolution authorizing the City Manager to execute a Crossing Agreement with BNSF Railway Company RECOMMENDATION The Administration recommends the City Manager be authorized to execute a Crossing Agreement with BNSF (Burlington Northern Santa Fe) Railway for the construction of the Calder Avenue Drainage Project (Phase II) . BACKGROUND The Calder Avenue Drainage and Pavement Improvement Project (Phase II) requires box culverts to be constructed under railroad tracks owned by the BNSF Railway Company. The railroad tracks cross Calder Avenue right-of-way just east of First Street. The Crossing Agreement (see attached) is required to allow the construction work to proceed under the railroad tracks. BUDGETARY IMPACT Funds are available in the Capital Program. C:ACa1derProject\RRCrossing 4'2\Agenda Railroad CrossingA.wpd RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to execute a Crossing Agreement, substantially in the form attached hereto as Exhibit"A," with Burlington Northern Santa Fe Railway to allow construction of the Calder Avenue Drainage Project (Phase II)to proceed under the railroad tracks crossing Calder Avenue right-of-way east of First Street. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 22nd day of December, 2009. - Mayor Becky Ames - CROSSING AGREEMENT FOR INSTALLATION OF DRAINAGE IMPROVEMENTS UNDER RAILROAD RIGHT OF WAY THIS CROSSING AGREEMENT FOR INSTALLATION OF DRAINAGE IMPROVEMENTS UNDER RAILROAD RIGHT OF WAY ( "Agreement"), made as of the day of , 2009 ("Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor" "BNSF" or"Railroad") and the CITY OF BEAUMONT,TEXAS("Licensee" "City"). NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following: GENERAL 1. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests, and estates of third- parties, including, without limitation, any leases, use rights, easements, liens, or other encumbrances, and upon the terms and conditions set forth below, to construct and maintain, in strict accordance with the drawings and specifications approved by Licensor as part of Licensee's application process (the "Drawings and Specifications"), certain drainage improvements ("Drainage Improvements"), with such Drainage Improvements to be constructed underneath and/or beside the rail corridor of Licensor at the following locations: and Improvements will be Im Drainage which the on The above-listed locations and dimensions of the tracts of real property upon g p constructed (collectively, the "Premises") are more specifically described and depicted on Exhibit "A" attached hereto and incorporated herein b reference. The parties hereto further agree that the Drainage Improvements shall be P Y P b � P constructed on the Premises in strict accordance with the Drawings and Specification and additional descriptions, written authorizations, and plans (collectively, the "Plans") attached hereto as Exhibit "B" and incorporated herein by reference. 2. Except as specifically set forth in the Plans, Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees, Licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such improvements. 3. (a) Licensee shall use the Premises solely for construction and maintenance of the Drainage Improvements, except to the extent portions of the Premises are already used by the City for a public road or public right-of-way, in strict accordance with the Plans. Licensee shall not use the Drainage Improvements, or any of them, for any purpose besides the collection of storm water. (b) Licensee covenants that it shall not dispose of, deposit, store, or otherwise use "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state, or local governmental agency or body within the Drainage Improvements, on the Premises, or on any portion of Licensor's property. Licensee shall periodically test and monitor the Drainage Improvements to confirm that they do not contain any hazardous substance(s) and,/or hazardous waste. Should the Drainage Improvements at any time contain any hazardous substance(s) and/or hazardous waste, then Licensee shall immediately (within twenty-four (24) hours) take all steps necessary to complete the removal and remediation of any such hazardous substance(s) and/or hazardous waste. Licensee also hereby agrees and covenants that it shall test and monitor the Drainage Improvements for hazardous substance(s) and/or hazardous waste as soon as reasonably practical after major weather events(including but not limited to hurricanes and tropical storms) causing flooding within the general vicinity of the Drainage Improvements. Licensee agrees to furnish Licensor periodically with proof, satisfactory to Licensor that Licensee is in such compliance. Licensee's failure to comply fully with the above-stated obligations of this Section, notwithstanding anything contained in any other provision hereof,shall be deemed an event of default under this Agreement. - 1 - EXHIBIT "A" 4. Any contractors or subcontractors performing work on the Drainage Improvements or entering the Premises on behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this Agreement. TERM 5. This Agreement shall commence on the Effective Date and shall continue in perpetuity, subject to prior termination as hereinafter described. COMPENSATION 6. (a) Licensee shall pay Licensor, prior to the Effective Date, the sum of Ten and No/100 Dollars (S 10.00) as compensation for the use of the Premises. (b) Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of bills therefor) for all costs and expenses incurred by Licensor in connection with Licensee's use of the Premises or the presence, construction and maintenance of the Drainage Improvements, including but not limited to the furnishing of Licensor's flaggers and any vehicle rental costs incurred. The cost of flagger services provided by Licensor, when deemed necessary by Licensor's representative, will be borne by Licensee. Flagging costs shall include, but not be limited to, the following: pay for at least an eight(8)hour basic day with time and one-half or double time for overtime, rest days and holidays(as applicable); vacation allowance; paid holidays (as applicable); Licensor and unemployment insurance; public liability and property damage insurance; health and welfare benefits; transportation; meals; lodging and supervision. Negotiations for Licensor labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase flagging rates. The flagging rates in effect at the time of performance by the flaggers will be used to calculate the costs of flagging pursuant to this paragraph. (c) The City agrees to reimburse BNSF, to the extent payments are called for from the City to BNSF, Pursuant to Chapter 2251 of the Texas Government Code. COMPLIANCE WITH LAWS 7. (a) Licensee shall observe and comply with any and all laws, statutes, regulations, ordinances, orders, covenants, restrictions, or decisions of any court of competent jurisdiction ("Legal Requirements") relating to the construction, maintenance,and use of the Drainage Improvements and the use of the Premises. (b) Prior to entering the Premises, Licensee shall and shall cause its contractor to comply with all Licensor's applicable safety rules and regulations. Prior to commencing any work on the Premises, Licensee shall complete and shall require its contractor to complete the safety-training program at the Website "http://contractororientation.com". This training must be completed no more than one year in advance of Licensee's entry on the Premises. RIGHT OF LICENSOR TO USE 8. Licensor excepts and reserves the right, to the extent such right already exists at the time of executing this Agreement, to be exercised by Licensor and any other parties who may obtain written permission or authority from Licensor: (a) to maintain, renew, use, operate, change, modify and relocate any existing pipe, power, communication lines and appurtenances and other facilities or structures of like character upon, over, under or across the Premises; (b) to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; or - 2 - (c) to use the Premises in any manner as Licensor in its sole discretion deems appropriate, provided Licensor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Licensee for the purpose specified in Section 3 above. LICENSEE'S OPERATIONS 9. (a) Licensee shall notify Licensor's Roadmaster, Aaron Whitney at I10 Sunbeam Lane, Lafayette, LA 70501, office (337) 572-2502, cell (337) 303-4589, at least ten (10) business days prior to installation of any of the Drainage Improvements and prior to entering any location within the Premises for any maintenance on the Drainage Improvements. In case of emergency, Licensee shall notify Licensor of Licensee's entry onto the Premises at the telephone number above as soon as practicable and shall promptly thereafter follow up with written notice of such entry. (b) In performing the work described in Section 3, Licensee shall use only public roadways to cross from one side of Licensor's tracks to the other. (c) Prior to performing the work described in Section 3, Licensee shall require the Contractor (defined below) to conduct a construction feasibility review ("Feasibility Review") by a qualified, experienced jack and bore contractor for such work, and to promptly provide a copy of the Feasibility Review report to BNSF. Contractor's failure to perform such Feasibility Review and/or promptly provide a copy of the Feasibility Review report to BNSF shall be deemed a breach of this Agreement entitling, but not requiring, BNSF to immediately terminate this Agreement upon notice to Licensee. (d) Prior to performing the work described in Section 3, Licensee shall provide Licensor with a letter from the Contractor stating that (i) the Contractor is qualified and experienced in conducting jack and bore placements, including placement of drainage equipment such as the Drainage Improvements, underneath active railroad tracks, and (ii) Contractor shall successfully complete the work described in Section 3 while maintaining and protecting Licensor's tracks. 10. (a) Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other materials, within twenty-five (25) feet of the centerline of any railroad track on or adjacent to the Premises unless Licensee has obtained prior written approval from Licensor(all such written approvals should be requested by Licensee as a part of the Plans). Licensee shall, at its sole cost and expense, perform all activities on and about the Premises in such a manner as not at any time to be a source of danger to or interference with the existence or use of present or future tracks, roadbed or property of Licensor, or the safe operation and activities of Licensor. If during any construction or maintenance of the Premises by Licensee's contractors, such contractors are ordered to cease using the Premises by Licensor's personnel due to any hazardous condition, Licensee's contractors shall immediately do so and shall immediately correct such hazardous condition before continuing with such construction or maintenance activities. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to monitor Licensee's use of the Premises to determine the safe nature thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the Premises is safe. Neither the exercise nor the failure by Licensor to exercise any rights granted in this Section will alter the liability allocation provided by this Agreement. (b) Licensee shall, at its sole cost and expense, construct and maintain the Drainage Improvements in such a manner and of such material that it will not at any time be a source of danger to or interference with the existence or use of present or future tracks, roadbed or property of Licensor, or the safe operation and activities of Licensor. Licensor may direct one of its field engineers to observe or inspect the maintenance of the Drainage Improvements at any time for compliance with the Drawings and Specifications. If ordered at any time to halt maintenance of the Drainage Improvements by Licensor's personnel due to non-compliance with the same or any other hazardous condition, Licensee's contractors shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to observe or inspect, or to halt work on, the Drainage Improvements, it being solely Licensee's responsibility to ensure that each of the Drainage Improvements is maintained in strict accordance with the Plans and in a safe and workmanlike manner in compliance with all terms hereof. Neither the exercise nor the failure by Licensor to exercise any right granted by this Section will alter in any way the liability allocation provided by this Agreement. If at any time Licensee and its contractors shall, in the sole judgment of Licensor, fail to properly perform its obligations under this Section, after due notice and consultation with Licensee and its contractors, Licensor may, at its - 3 - option and at Licensee's sole expense, after written notice to Licensee and its contractors, arrange for the performance of such work as it deems necessary for the safety of its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses of such work, upon receipt of an invoice for the same. Licensor's failure to perform any obligations of Licensee shall not alter the liability allocation hereunder. 11. During the construction and any subsequent maintenance performed on the Drainage Improvements, or any of them, Licensee shall perform such work in a manner to preclude damage to the property of Licensor, and preclude interference with the operation of its railroad. The construction of all of the Drainage Improvements shall be completed within one(1)year of the Effective Date. Upon completion of the construction of all of the Drainage Improvements and after performing any subsequent maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore the Premises to substantially their former state as of the Effective Date above. 12. In no event will the operation of the Drainage Improvements interfere with Licenser's current or future use of the rails and rail corridor located on the Premises. If at any time during the term of this License interference from the Drainage Improvements occurs, Licensor agrees to give written notice of such interference to Licensee and demand that Licensee cure such interference. Further, if at any time during the term of this License, Licensor shall desire the use of its rail corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with by the Drainage Improvements, or any of them, Licensee shall notify Licensee of the need to modify, alter, or relocate the Drainage Improvements. Thereafter, Licensee and Licensor shall meet and confer in good faith regarding the need, cost and payment for such modification or relocation. In the event that they cannot agree on the modifications or relocation and the costs thereof and whether such costs should be borne by Licensee or the BNSF, and a default is declared hereunder, the parties shall be entitled, without limitation, to any and all remedies allowed by law with regard to the uncured default. 13. (a) Prior to Licensee conducting any boring work on or about any portion of the Premises, Licensee shall explore the proposed location for such work with hand tools to a depth of at least three (3)feet below the surface of the ground to determine whether pipelines or other structures exist below the surface, provided, however, that in lieu of the foregoing, the Licensee shall have the right to use suitable detection equipment or other generally accepted industry practice(era•, consulting with the Underground Services Association)to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment. Upon Licensee's written request, which shall be made thirty (30) business days in advance of Licensee's requested construction of the Drainage Improvements, Licensor will provide Licensee any information that Licensor has in the possession of its Engineering Department concerning the existence and approximate location of Licenser's underground utilities and pipelines at or near the vicinity of the proposed Drainage Improvements. Prior to conducting any such boring work, the Licensee will review all such material. Licensor does not warrant the accuracy or completeness of information relating to subsurface conditions and Licensee's operations will be subject at all times to the liability provisions herein. (b) For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of rail, a soil investigation will need to be performed by the Licensee and reviewed by Licensor prior to construction. This study is to determine if granular material is present, and to prevent subsidence during the installation process. If the investigation determines in Licensor's reasonable opinion that granular material is present, Licensor may select a new location for Licensee's use, or may require Licensee to furnish for Licensor's review and approval, in its sole discretion a remedial plan to deal with the granular material. Once Licensor has approved any such remedial plan in writing, Licensee shall, at its sole cost and expense,carry out the approved plan in accordance with all terms thereof and hereof. 14. Any open hole, boring or well constructed on the Premises by Licensee shall be safely covered and secured at all times when Licensee is not working in the actual vicinity thereof. Following completion of that portion of the work, all holes or borings constructed on the Premises by Licensee shall be: (a) filled in to surrounding ground level with compacted bentonite grout;or (b) otherwise secured or retired in accordance with any applicable Legal Requirement. No excavated materials may remain on Licensor's property for more than ten (10) days, but must be properly disposed of by Licensee in accordance with applicable Legal Requirements. - 4 - 1 5. It is agreed that should the property or any portion thereof for which permission is given hereunder cease to be used for public road or drainage purposes, this permission, as to the portion so abandoned, shall immediately cease and terminate. In such event Licensee shall,at its sole cost and expense: (a) fill in the Drainage Improvements with gravel, cement, or other material as approved by Licensor in writing in advance; (b) report and restore any damage to the Premises arising from, growing out of, or connected with Licensee's use of the Premises; (c) remedy any unsafe conditions on the Premises created or aggravated by Licensee; and (d) leave the Premises in substantially the condition as of the Effective Date above. 16. Licensee's on-site supervisor shall retain/maintain a fully executed copy of this Agreement at all times while on the Premises. LIABILITY 17. (a) TO THE FULLEST EXTENT PERMITTED BY LAW LICENSEE SHALL CAUSE ITS CONTRACTOR, TO NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT LICENSOR IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE PREMISES FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. LICENSEE FURTHER AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS AGREEMENT SHALL NOT IN ANY WAY SUBJECT LICENSOR TO CLAIMS THAT LICENSOR IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS. IN NO EVENT SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES CAUSED BY OR ARISING OUT OF LICENSEE'S USE OF THE PREMISES. (b) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL CAUSE ITS CONTRACTORS TO AGREE REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS' LIABILITY ACT ("FELA") WHENEVER EMPLOYEES OF LICENSEE OR ANY OF ITS AGENTS, INVITEES, OR CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE. THIS INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL SAFETY AND HEALTH ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT,AND ANY SIMILAR STATE OR FEDERAL STATUTE.. (c) To the fullest extent permitted by law, upon written notice from Licensor, Licensee agrees to require its contractors to assume the defense of any lawsuit or other proceeding brought against any Indemnitee by any entity, relating to any matter covered by this Agreement for which Licensee has responsibility. Licensee shall require its contractors to pay all costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments. PERSONAL PROPERTY WAIVER 18. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE. - 5 - INSURANCE 19. (a) The City will not self-perform any work on the premises, including but not limited to modification, construction and maintenance of the Drainage Improvements, but, relative to the property in question, will have such work performed by a contractor. The City agrees that if it fails to cease all such self-performed work if demanded by Licensor, either orally or in writing, Licensor may seek injunctive relief to enforce this provision. The failure of Licensor to demand the stoppage of work shall not constitute a waiver of this provision. Notwithstanding the foregoing, and in addition to same, the parties shall be entitled, without limitation, to any and all remedies allowed by law with regard to the uncured default. (b) The City agrees that no contractor of the City may perform any work on the Premises without first executing, without limitation, the Railroad's then-current Texas-standard Contractor's Right of Entry Agreement, attached hereto and indentified as Exhibit C, as amended from time to time; the failure to do so being a material default hereunder . Licensee's contractors will not be allowed on the Premises by the Railroad without first receiving an executed and binding original of the Railroad's then-current Texas-standard Contractor's Right of Entry Agreement, attached hereto and indentified as Exhibit C. CITY AGREES THAT LICENSOR SHALL NOT BE LIABLE TO THE CITY OR THE CITY'S CONTRACTOR FOR ANY DAMAGES, DELAY, PENALTIES, FORFEITURES OR OTHER EXPENSES OR CLAIMS INCURRED BY CITY OR CONTRACTOR AS A RESULT OF THE FAILURE OF THE CITY TO REQUIRE AND OBTAIN COMPLIANCE FROM AND THE FAILURE OF CITY'S CONTRACTOR TO EXECUTE AND COMPLY WITH THE RAILROAD'S THEN-CURRENT TEXAS-STANDARD CONTRACTOR'S RIGHT OF ENTRY AGREEMENT ATTACHED HERETO AND IDENTIFIED AS EXHIBIT C, AS AMENDED FROM TIME TO TIME. The City's Contractor shall provide the insurance coverages as contained in the Railroad's then-current Texas-standard Contractor's Right of Entry Agreement, attached hereto and indentified as Exhibit C, as amended from time to time.. The City's Contractor shall execute the Contractor's Right-of-Entry before commencing any work on the Railroad's property. (c) For future maintenance work, the City's Contractor shall provide the then-current Texas insurance coverages and be required to execute, without limitation, the Railroad's then-current Texas-standard Contractor's Right of Entry Agreement before commencing any work on the Railroad's property. Absent execution of said Right of Entry Agreement attached as Exhibit C, the City's Contractor may not enter the Premises or perform any such work. Breach of this provision shall be deemed to be material. (d) In addition to and not in limitation of any other remedies available to Railroad at law or in equity or in this Agreement, all of which are cumulative and not mutually exclusive, City agrees to require its' contractor to pay Railroad an amount of $1,000.00 per calendar day for each calendar day or portion of a calendar day that City's Contractor enters upon the Premises without having executed Railroad's then-current Texas-standard Contractor's Right of Entry Agreement and fully complied with the provisions thereof. The City shall include a provision requiring such obligation and payment in any agreement or contract with its Contractors hired or engaged to perform such work on, at, over or under the Premises. The failure to include this requirement in any such contract shall be a material default of this Agreement. ENVIRONMENTAL 20. (a) Licensee shall strictly comply with all federal, state and local environmental laws and regulations in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA(collectively referred to as the "Environmental Laws"). Licensee shall not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous substances, as defined by Environmental Laws on or about the Premises. (b) Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at (800) 832-5452 of any release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best efforts to promptly respond to any release on or from the Premises. Licensee also shall give Licensor immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to or otherwise cure such release or violation. - 6 - (c) In the event that Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws arising in any way with respect to the Drainage Improvements which occurred or may occur during the term of this License, resulting from Licensee's use and operation of the Premises, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or Licensor's right-of-way. (d) Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known to Licensee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any obligation whatsoever imposed on it by this License. Licensee shall promptly respond to Licensor's request for information regarding said conditions or activities. NO WARRANTIES 21. LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS AGREEMENT AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE CONTAINED IN THIS AGREEMENT. LICENSEE HEREBY WAIVES ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. QUIET ENJOYMENT 22. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. DEFAULT 23. If default shall be made in any of the covenants or agreements of Licensee contained in this Agreement and Licensee shall fail to cure said default within 30 days after written notice is provided to Licensee by Licensor, or in case of any assignment or transfer of this Agreement by operation of law then Licensor may, at its option, take the following actions: a) Either party may bring suit, in a court of competent jurisdiction, against the other party for injunctive relief to enforce the provisions of this Agreement. b) Licensor may give Licensee notice of intent to terminate this Agreement due to any uncured default by serving five (5) days' notice in writing upon Licensee. Upon the expiration of said five (5) day period, if Licensee shall not have cured said default, then until resolved by a court of competent jurisdiction, Licensee shall not be allowed access to the Premises for any purposes permitted under this Agreement without the express written permission of Licensor. Notwithstanding the foregoing, however, and in addition to same, the parties shall be entitled, without limitation, to any and all remedies allowed by law with regard to the uncured default. Any waiver by Licensor or Licensee of any default or defaults shall not constitute a waiver of the right to terminate this Agreement for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability to enforce any Section of this Agreement. The remedy set forth in this Section 23 shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity. - 7 - TERMINATION 24. This Agreement may be terminated by Licensee upon execution of Licensor's Mutual Termination Letter Agreement then in effect. Upon expiration of the time specified in such notice, this Agreement and all rights of Licensee shall absolutely cease. 25. if Licensee fails to surrender to Licensor the Premises, upon any termination of this Agreement, all liabilities and obligations of Licensee hereunder shall continue in effect until the Premises are surrendered. Termination shall not release Licensee from any liability or obligation resulting from any events happening prior to the date of termination. Nothing herein, however, shall require the termination or abandonment of any public roadway currently in use by Licensee on, over or under the Premises. ASSIGNMENT 26. Neither Licensee, nor the heirs, legal representatives, successors, or assigns of Licensee, nor any subsequent assignee, shall assign, transfer, sell, or hypothecate this Agreement or any interest herein (either voluntarily or by operation of law)without the prior written consent and approval of Licensor, which shall not be unreasonably withheld. EXISTING AGREEMENTS 27. It is agreed that all existing agreements between the Railroad and the City concerning licenses, permits, leases or easements at this location shall remain in full force and effect. To the extent that property is referred to as being the "Railroad property," "Railroad right of way," or other such notation, such reference does not change the legal status of such property as it exists on the date of executing this agreement and such terms are simply used to reference the property where the Railroad tracks are located on Calder Avenue as of the Effective Date. RESPONSIBLE FOR ITS OWN ACTIONS 28. The parties hereto acknowledge that no party is an agent, servant, or employee of any of the other parties, and each party agrees it is responsible for its own individual acts and deeds as well as the acts and deeds of its contractors, agents,representatives, and employees during performance of contract work. TITLE TO PROPERTY 29. Nothing in this agreement alters the respective parties ownership interests, if any, in the Premises. NOTICES 30. Any notice required or permitted to be given hereunder by one party to the other shall be in writing and the same shall be given and shall be deemed to have been served and given if(i)placed in the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognized overnight delivery service, addressed to the party to be notified at the address for such party specified below, or to such other address as the party to be notified may designate by giving the other party no less than thirty (30) days' advance written notice of such change in address. If to Licensor: Jones Lang LaSalle 3017 Lou Menk Drive, Suite 100 Fort Worth, TX 76131-2800 Attn: Licenses/Permits with a copy to: BNSF Railway Company 2500 Lou Menk Dr.—A0133 Fort Worth, TX 76131 Attn: Senior Manager Real Estate - 8 - If to Licensee: City of Beaumont, Texas 801 Main Street, Suite 210 Beaumont, TX 77701 Attn: Craig Koch, Engineering Supervisor Tel: 409-880-3725 with a copy to: City of Beaumont, Texas 801 Main Street, Suite 210 Beaumont, TX 77701 Attn: Joseph Sanders, First Assistant City Attorney Tel: 409-880-3715 SURVIVAL 31. Neither termination nor expiration will release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration, or, if later, the date when the Drainage Improvements and improvements are removed and the Premises are restored to its condition as of the Effective Date. RECORDATION 32. It is understood and agreed that this Agreement shall not be recorded in the Deed Records of Jefferson County, Texas or otherwise recorded in the chain of title of the property. APPLICABLE LAW 33. All questions concerning the interpretation or application of provisions of this Agreement shall be decided according to the substantive laws of the State of Texas without regard to conflicts of law provisions. VENUE AND JURISDICTION 34. Venue and Jurisdictions for all disputes between the parties relative to this Agreement shall be in a court of competent jurisdiction, whether state or federal, in Jefferson County, Texas. SEVERABILITY 35. To the maximum extent possible,each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not invalidate the remainder of such provision or any other provision of this Agreement. [The balance of this page has been intentionally left blank] - 9 - IN WITNESS WHEREOF, this Agreement has been duly executed, in duplicate, by the parties hereto as of the day and year first above written. BNSF RAILWAY COMPANY By: Jones Lang LaSalle 3017 Lou Menk Drive, Suite 100 Fort Worth,TX 76131-2800 By: CITY OF BEAUMONT,TEXAS By: Title: - 10 - EXHIBIT "A" Description/Depiction of Premises (see attached) Exhibit"A" EXHIBIT "B" Plans [see attached] Exhibit"B" EXHIBIT "C" Form of Contractor's Right of Entry Agreement [see attached] �I Exhibit"C" CONTRACTOR'S RIGHT OF ENTRY AGREEMENT FOR CONSTRUCTION PROJECTS ON OR ADJACENT TO PROPERTY OF BNSF RAILWAY COMPANY This Right of Entry Agreement("Agreement") is entered into effective as of 200_, by and between ("Contractor"), corporation, and BNSF RAILWAY COMPANY ("Railway"), a Delaware corporation. WHEREAS, Railway operates a freight transportation system by rail with operations throughout the United States and Canada; and WHEREAS, ]insert Industry's name here] desires Contractor to perform certain construction services adjacent to and upon Railway's right of way and/or property, and Contractor is willing to perform such services. NOW, THEREFORE, in consideration of Railway entering this Agreement with Contractor and granting Contractor permission to enter upon the Premises (defined herein), Contractor agrees with Railway as follows: SECTION ]. SCOPE OF SERVICES Contractor ]and/or Industry] will perform the following services, hereinafter described as "Work": Performance of the Work will necessarily require Contractor to enter Railway's right of way and property ("Premises"). Contractor agrees that no work will be commenced on the Premises until (i) this Agreement is executed by both Contractor and Railway; and (ii) Contractor provides the Railway with the insurance contemplated herein. Contractor further agrees that if this Agreement is not executed by the owner, general partner, president or vice-president of Contractor, Contractor will furnish Railway with evidence certifying that the signatory is empowered to execute this Agreement. SECTION 2. PAYMENT OF FEES Industry will be responsible for paying Contractor for the Work performed under this Agreement. SECTION 3. RELEASE OF LIABILITY AND INDEMNITY Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for, from and against all judgments, awards, claims, demands, and expenses (including attorney's fees), for injury or death to all persons, including Railway's and Contractor's officers and employees, and for loss and damage to property belonging to any person, arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work performed on or about Railway's property or right of way. THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF RAILWAY. THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE LOCOMOTIVE INSPECTION ACT,WHENEVER SO CLAIMED. Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle all claims made against Railway, and will, at Railway's discretion, appear and defend any suits or actions of law or in equity brought against Railway on any claim or cause of action arising or growing out of or in any manner connected with any liability assumed by Contractor under this Agreement for which Railway is liable or is alleged to be liable. Railway will give notice to Contractor, in writing,of the receipt or pendency of such claims and thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the event of a brought against Railway, Railway may forward summons and complaint or other process in connection Exhibit"C" therewith to Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle such suits and protect, indemnify, and save harmless Railway from and against all damages,judgments, decrees,attorney's fees, costs,and expenses growing out of or resulting from or incident to any such claims or suits. It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in this Agreement will survive any termination of this Agreement. SECTION 4. INSURANCE Prior to any access to the Premises, Contractor must, at its sole cost and expense, procure and maintain during the life of this Agreement, and provide written proof therof in advance of any Work on or access to the Premises„ the following insurance coverages: (a) Commercial General Liability Insurance. This insurance must contain broad form contractual liability with a combined single limit of a minimum of$5,000,000 each occurrence and an aggregate limit of at least $10,000,000 but in no event less than the amount otherwise carried by the Contractor. Coverage must be purchased on a post 1995 ISO occurrence form or equivalent and include coverage for, but not limited to, the following: ♦ Bodily Injury and Property Damage Personal Injury and Advertising Injury ♦ Fire legal liability ♦ Products and completed operations This policy must also contain the following endorsements, which must be indicated on the certificate of insurance: ♦ The definition of insured contract must be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. ♦ Waiver of subrogation in favor of and acceptable to Railroad. Additional insured endorsement in favor of and acceptable to Railroad and Jones, Lang, LaSalle Global Services RR,Inc. Separation of insureds. ♦ The policy shall be primary and non-contributing with respect to any insurance carried by Railroad. It is agreed that the workers' compensation and employers' liability related exclusions in the Commercial General Liability insurance policy(s) required herein are intended to apply to employees of the policy holder and shall not apply to Railroad employees. No other endorsements limiting coverage may be included on the policy with regard to the work being performed under this Agreement or otherwise with respect to any obligations under this Agreement. (b) Business Automobile Insurance. This insurance must contain a combined single limit of at least $1,000,000 per occurrence,and include coverage for, but not limited to the following: ♦_ Bodily injury and property damage Any and all vehicles owned, used or hired This policy shall also contain the following endorsements or language,which shall be indicated on the certificate of insurance: Waiver of subrogation in favor of and acceptable to Railroad ♦ Additional insured endorsement in favor or and acceptable to Railroad. Separation of insureds. ♦ The policy shall be primary and non-contributing with respect to any insurance carried by Railroad. (c) Workers Compensation and Employers Liability insurance including coverage for, but not limited to: Contractor's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. Exhibit"C" ♦_ Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit,$500,000 by disease each employee. This policy shall also contain the following endorsements or language,which shall be indicated on the certificate of insurance: ♦ Waiver of subrogation in favor of and acceptable to Railroad. (d) Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The policy must be issued on a standard ISO form CG 00 35 10 93 and include the following: ♦ Endorsed to include the Pollution Exclusion Amendment(ISO form CG 28 31 10 93) ♦ Endorsed to include the Limited Seepage and Pollution Endorsement ♦_ Endorsed to include Evacuation Expense Coverage Endorsement ♦ No other endorsements restricting coverage may be added ♦ The original policy must be provided to the Railroad prior to performing any work or services under this Agreement In lieu of providing a Railroad Protective Liability Policy, Contractor may participate in Railroad's Blanket Railroad Protective Liability Insurance Policy available to Contractor. The limits of coverage are the same as above. The cost is$ U I elect to participate in Railroad's Blanket Policy for activities commencing as of the Effective Date(if any); ❑ I elect not to participate in Railroad's Blanket Policy for activities commencing as of the Effective Date(if any). Other Requirements: Where allowable by law, all policies (applying to coverage listed above) must not contain an exclusion for punitive damages and certificates of insurance must reflect that no exclusion exists. Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad. In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad, for loss of its owned or leased property or property under its care, custody or control. Contractor is not allowed to self-insure without the prior written consent of Railroad. If granted by Railroad, any deductible, self-insured retention or other financial responsibility for claims must be covered directly by Contractor in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by Contractor's insurance will be covered as if Contractor elected not to include a deductible,self-insured retention or other financial responsibility for claims. Prior to commencing the Work, Contractor must furnish to Railroad an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments. The policy(ies) must contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any cancellation, non- renewal, substitution or material alteration. This cancellation provision must be indicated on the certificate of insurance. In the event of a claim or lawsuit involving Railroad arising out of this Lease, Industry will make available any required policy covering such claim or lawsuit. Any insurance policy must be written by a reputable insurance company acceptable to Railroad or with a current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided. Contractor represents that this Agreement has been thoroughly reviewed by Contractor's insurance agent(s)/broker(s), who have been instructed by Contractor to procure the insurance coverage required by this Agreement. Allocated Loss Expense must be in addition to all policy limits for coverages referenced above. Exhibit"C Not more frequently than once every five years,Railroad may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be subcontracted by Contractor, Contractor must require that the subcontractor provide and maintain the insurance coverages set forth herein, naming Railroad as an additional insured, and requiring that the subcontractor release, defend and indemnify Railroad to the same extent and under the same terms and conditions as Contractor is required to release,defend and indemnify Railroad herein. Failure to provide evidence as required by this section will entitle, but not require,Railroad to terminate this Agreement immediately. Acceptance of a certificate that does not comply with this section will not operate as a waiver of Contractor's obligations hereunder. The fact that insurance (including,without limitation, self-insurance) is obtained by Contractor will not be deemed to release or diminish the liability of Contractor including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad will not be limited by the amount of the required insurance coverage. For purposes of this section, "Railroad" means "Burlington Northern Santa Fe Corporation", "BNSF RAILWAY COMPANY" and the subsidiaries,successors,assigns and affiliates of each. SECTION 5. CONTRACTOR REQUIREMENTS (a) While on or about the Premises, Contractor must fully comply with Railway's "Contractor Requirements", including (but not limited to) clearance requirements and personal protective equipment requirements. Contractor will be responsible for fully informing itself as to Railway "Contractor Requirements". (b) Prior to entering the Premises, each person providing labor, material, supervision, or services connected with the Work to be performed on or about the Premises must complete the safety training program (hereinafter called, "Railway Contractor Safety Orientation") at the following internet website: "contractororientation.com". Contractor must ensure that each of its employees, subcontractors, agents or invitees completes the Railway Contractor Safety Orientation before any Work is performed under this Agreement. Additionally, Contractor must ensure that each and every employee of Contractor, its subcontractors, agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation prior to entering the Premises. Contractor must renew the Railway Contractor Safety Orientation annually. (c) Prior to entering the Premises, the Contractor must prepare and implement a safety action plan acceptable to Railway. Contractor must audit compliance with that plan during the course of Contractor's work. A copy of the plan and audit results must be kept at the work site and will be available for inspection by Railway at all reasonable times. (d) When not in use, Contractor's machinery and materials must be kept at least 50 feet from the centerline of Railway's nearest track. Contractor must not cross Railway's tracks except at existing open public crossings. SECTION 6. PROTECTION OF RAILWAY FACILITIES AND RAILWAY FLAGGER SERVICES (a) The Contractor must give Railway's Roadmaster (telephone ) a minimum of thirty (30) working days advance notice when flagging services will be required so that the Roadmaster can make appropriate arrangements (i.e., bulletin the flagger's position). If flagging services are scheduled in advance by Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary, Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements can be made to abolish the position pursuant to union requirements. (b) Railway flagger and protective services and devices will be required and furnished when Contractor's work activities are located over or under of and within twenty-five (25) feet measured horizontally from center line of the nearest track and when cranes or similar equipment positioned outside of 25-foot horizontally from track center line that could foul the track in the event of tip over or other catastrophic occurrence, but not limited thereto for the following conditions: (1) When in the opinion of the Railway's representative, it is necessary to safeguard the Premises, employees,trains,engines and facilities. Exhibit"C" L (2) When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's representative,track or other Railway facilities may be subject to movement or settlement. (3)When work in any way interferes with the safe operation of trains at timetable speeds. (4) When any hazard is presented to Railway track, communications, signal, electrical, or other facilities either due to persons, material,equipment or blasting in the vicinity. (5) Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable. (c) Flagging services will be performed by qualified Railway flaggers. The estimated cost for one (1) flagger is $600.00 for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare benefits, transportation, meals, lodging and supervision. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. The flagging rate in effect at the time of performance by Contractor hereunder will be used to calculate the actual costs of flagging pursuant to this paragraph. (1) A flagging crew generally consists of one employee. However, additional personnel may be required to protect the Premises and operations, if deemed necessary by the Railway's representative. (2) Each time a flagger is called, the minimum period for billing will be the eight (8) hour basic day. (3) The cost of flagger services provided by the Railway, when deemed necessary by the Railway's representative,will be borne by the /Contractor. SECTION 7. INDEPENDENT CONTRAC"rOR Contractor is considered an independent contractor under this Agreement and neither Contractor nor any of its employees, subcontractors, agents or servants are considered employees of Railway in any respect. Contractor has the exclusive right and duty to control the work of its employees. All persons employed by Contractor or any of its subcontractors under this Agreement are the sole employees of Contractor or its subcontractors. Contractor will be given general directions and instructions regarding the Work to be performed under this Agreement; however, direct supervision of Contractor's employees will be Contractor's responsibility and obligation. SECTION 8. TRAIN DELAYS Work performed by Contractor must not cause any interference with the constant, continuous and uninterrupted use of the tracks, property and facilities of the Railway, its lessees, licensees or others, unless specifically permitted under this Agreement, or specifically authorized in advance by the Railway Representative. Additionally, Contractor must not, at any time, impair the safety of Railway operations or the operations of Railway's lessees, licensees or other Railway invitees. Delays to freight or passenger trains affect BNSF's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be responsible to Railway, including its subsidiaries, affiliated companies, partners, successors and assigns, for economic losses resulting from unscheduled delays to freight or passenger trains in accordance with the following: (a)Train Delay Damages (1) Contractor will be billed for the economic losses arising from loss of use of equipment and train service employees, contractual incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor, its subcontractors or by Railway performing Work associated with this project. (2) The parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight trains operate under incentive/penalty contracts with the Railway. Under such arrangements, if Railway does not meet its contract service commitments, Railway may (i) suffer loss of performance or incentive pay, or (ii) be subject to a penalty payment. Contractor is responsible Exhibit"C for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a train delay caused by Contractor,or its subcontractors. (3) The contractual relationship between Railway and its passenger customers is proprietary and confidential. In the event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the maximum extent consistent with Railway confidentiality obligations. SECTION 9. ALL TERMS MATERIAL Contractor agrees and acknowledges that each and every term hereof is deemed to be material. Contractor acknowledges that Contractor shall not be allowed nor will attempt access to the Premises and shall not perform any of the Work if not in strict compliance hereunder. [The balance of this page has been intentionally left blank] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first written above. (Contractor) BNSF Railway Company, a Delaware corporation By By Vice President and Chief Engineer (Title) Address Exhibit"C" RICH WITH OPPORTUNITY 11E A.[I 1�1 C1 I* T • E - X - A • S REGULAR MEETING OF THE CITY COUNCIL COUNCIL CHAMBERS DECEMBER 22, 2009 1:30 P.M. AGENDA CALL TO ORDER * Invocation Pledge Roll Call * Presentations and Recognition * Public Comment: Persons may speak on scheduled agenda items 1-4/Consent Agenda * Consent Agenda GENERAL BUSINESS 1. Consider amending Chapter 29, Article IV of the Code of Ordinances relating to towing 2. Consider approving the purchase of two grappler trucks for use by the Solid Waste Division 3. Consider approving a maintenance agreement for Police, Fire and EMS public safety software support 4. Consider approving the purchase of two dump trucks and two asphalt patching machines for use by the Streets and Drainage Division 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: John Smith v. The City of Beaumont, et al Eric Kvarme, et al v. City of Beaumont, et al Persons with disabilities who plan to attend this meeting and who may need auxiliary aids or services are requested to contact Lenny Caballero at 880-3716 three days prior to the meeting. 1 December 22,2009 Consider amending Chapter 29, Article IV of the Code of Ordinances relating to towing RICH WITH OPPORTUNITY 17C A► � T • E • X • A • s City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Jim Thompson, Parks and Recreation Director MEETING DATE: December 22, 2009 REQUESTED ACTION: Council consider amendments to Chapter 29, Article IV of the Code of Ordinances related to towing. RECOMMENDATION The Administration recommends approval. BACKGROUND Following the workshop held on November 3, staff met with representatives of the local towing industry to discuss and consider amendments to the towing ordinance. This group worked through the issues and support the amendments being proposed for Council consideration. The changes made as a result of these meetings do the following: limit coverage of the ordinance to vehicles weighing 10,000 pounds or less, establish stronger requirements for company identification, increase the towing fee to $165, prohibit towing surcharges and fuel adjustments, and allow for reasonable recovery charges. The proposed towing fee will include whatever debris cleanup is needed with no additional charge. A number of other amendments discussed at the workshop remain unchanged. These amendments update agency names and definitions, and eliminate unnecessary language; promote increased safety for our citizens and officers by increasing the distance requirements at accident scenes to 1,000 feet; provide for the convenience of citizens by requiring that credit cards be accepted and that towing companies be regularly available by telephone; establish procedures by which a towing company may request that a rate study be performed; reinforce the chief's authority to implement and regulate the rotation system; and strengthen the appeals procedure, so that penalties may be modified by the city council or its appointed hearing officer. State and federal laws were considered in the development of these amendments, as were the practices of other Texas cities. BUDGETARYIMPACT None. Chapter 29 VEHICLES FOR HIRE Art. I. In General, §§29-1--29-19 Art. Il. Ambulances, §§29-20--29-39 Art. III. Taxicabs,§§29-40--29-69 Art. IV. Tow Trucks,Towing Companies,and Tow Truck Operators,§§29-70--29-76 ARTICLE IV. TOW TRUCKS, TOWING COMPANIES AND TOW TRUCK OPERATORS* *Editor's note: Ord. No. 98-64, § 1, adopted October 6, 1998, amended the Code by repealing former Art. IV, §§ 29-70--29-91, in its entirety. Former Art. IV pertained to wreckers, and derived from Ord. No. 88-15, adopted February 9, 1988; and Ord. No. 93-6, adopted February 2, 1993. Sec. 29-70. Definitions. As used in this article, the following terms shall have the respective meaning ascribed to them: ,� ,, Consent tow means any tow , or at the dirertiep Gf�'_4be _.,.towed vehiGle6 legal or regist° mAinja()r authorized �#— rtvtized e representative. EXGept as set feFth in tha_ ,�-Aa4-" ," Gen6 �•�" -eWRer +a .of a motor vehicle initiated by the owner or operator of the vehicle or by a person who has possession, custody, or control of the vehicle. The term does not include a tow of a motor vehicle initiated by a peace officer investigating a traffic accident or a traffic incident that involves the vehicle. Drop fee means the fee charged for a non-consent tow which is disengaged at the request of the vehicle's owner or operator while the towed vehicle is still at the location from which it is being removed. Missed call means the towing company was called and no contact made with a representative of the company or the towing company's tow truck did not respond to the scene within thirty (30) minutes of notification. Motor-Vvehicle means a motor vehicle subject to registration under Chapter 501, Texas Transportation Code or any other device designed to be self-propelled in, on or by which a person or property may be of-transported on a public highwayroadway. Non-consent tow means any tow d+r -e f-,-the tewed VehiGle'6 legal O r94�,-aGGideRt in +h° ----er they deem 4 order a_RGRGGR6eRt tew.of a motor vehicle that is not a consent tow. Operate means to drive or cause to be driven a tow truck on a public roadway. Operator means any person operating a tow truck on a public roadway of this state. Owner means a person owning, leasing or otherwise using either directly or indirectly a tow truck on a public roadway of this state. Person means an individual, corporation, organization, business trust, estate, trust, partnership, association or other legal entity. Public roadway means a public street, alley, road, right-of-way, or other public way, including paved and unpaved portions of the right-of-way. Recovery means actions taken to upright or otherwise move a vehicle to a position from which it can be towed. Tow truck means a motor vehicle, including a wrecker, equipped with a mechanical device used to tow, winch or otherwise move another motor vehicle. Towing company means an individual, GGFpeFatiGR, paFtReFGhip--Gf—^ � association, corporation, or other legal entity that controls, operates, or directs the operation of one or more tow trucks over a public roadway in this state but does not include a political subdivision of the state. er sterage-4 the- ehiG1 ttHH'-itibf -the GWRer, agent ^f o, X01 T—�-s Vehicle storage facility means a garage, parking lot or any other type of facility owned by a person other than a governmental entity for storing or parking ten (10) or more vehicles a year. (Ord. No. 98-64, § 1, 10-6-98) Sec. 29-71. Operation of tow truck. (a) It shall be unlawful for any person to operate a tow truck in the city for the purpose of, participation in or execution of any non consent tow, unless the tow truck is: (1) Licensed and permitted as a tow truck pursuant to Texas statutes; and (2) Owned by a towing company registered and permitted by the city. (b) No person, operating a tow truck who performs a non-consent tow, may tow any motor vehicle to any location other than: (1) A vehicle storage facility located in the city eperaW—a-VehiGle operated under a permit for same issued by the Texas Department of Licensing and Regulation; or (2) With the consent of the towing company, Aa specific location in the city designated by eperat the vehi the vehicle's owner. (c) No person shall stop or park any tow truck within thFee h6lRdred 10001one thousand 0 000) feet of the scene or site of any vehicle accident or collision while any vehicle disabled, damaged or wrecked in such accident or collision remains at such scene or site unless: (1) It is licensed and permitted as a tow truck pursuant to state statutes and has been directed by or received the consent of a police officer at the scene to stop or park the tow truck within the three h end one thousand- foot area; or (2) It is a tow truck which has been summoned to the scene or site of a vehicle accident by the owner of a vehicle involved in the accident and does not, in the opinion of any police officer investigating the accident, constitute a safety hazard to vehicles or persons at the scene or obstruct or interfere with the activities of the officers investigating the accident or scene. (d) No person, while on any public roadway or public property, may solicit in any manner, directly or indirectly, the business of towing, removing, repairing, storing, wrecking or buying any vehicle which is wrecked or disabled and on a public roadway. (Ord. No. 98-64, § 1, 10-6-98) Sec. 29-72. Permits for towing companies; required; procedure; fee; term. (a) Required. It shall be unlawful for any person to operate or cause to be operated any towing company in the city, without having first obtained a towing company permit from the city issued under this article to such person to operate a towing company within the city. [The following is being moved to subsection (g)]. T#e Ghief Gf P01. ahalf e wed WWiRg whe wosh- tFUG#4 GGMpaRy4i4ay have a-tee pa tist-Ctttd - itt:Fr- (b) Application generally. The chief of police shall develop necessary forms to enact these provisions. Any person desiring to operate a towing company in the city shall make application with the police department for the issuance of a towing company permit. SUGh appliGatieR shall be submitted GR the ferms furnished by the PGIOGe -The applicants shall furnish all required information and supporting documents noted on the application form. A towing company permit shall not be issued by the chief of police unless the applicant meets all 04e required provisions of this article, including but not limited to: (1) All information on the submitted application is true and accurate and all required supplemental documents or information has been furnished. (2) The towing company operates a vehicle storage facility in the city which is, at all times, licensed pursuant to the Texas Vehicle Storage Act, as it may be amended, and which is in compliance with all provisions of the Texas Vehicle Storage Facility Act and any provisions of the Texas --Occupations Code relevant to operation of a vehicle storage facility. (3) The physical facility to be operated by the towing company meets the following requirements: a. The facility is in compliance with all zoning requirements of the city; aiq4 b. The physical facility to be operated by the towing company is not a part of any other business which performs towing services and is not located at the same physical location as any other towing company; aed C. The physical location of the towing company has an office of not less than two hundred (200) square feet; and d.------The towing company has an active, published telephone number that is different from any other towing company and is not answered by an electronic answering device; and de. The towing company has a sign on the business premises identifying the towing company by the name as it appears on the license application, street address, telephone number, hours of business, and any vehicle storage facility license number issued for that location. Said sign shall be of a size that may be read from a distance of not less than one hundred fifty (150) feet. (c) Denial/suspension/revocation. An individual identified as an owner of a towing company on the application who has a felony conviction within the previous five (5) years that, in any fashion, relates to the duties and responsibilities involved in the operation of a towing company or which directly effects such person's fitness to perform as a towing company owner may have their application for permit denied or have any permit suspended or revoked by the chief of police. In determining whether an individual's criminal conviction (which includes the entry of a deferred judgement) relates to the performance of a towing company owner, the chief may consider the following factors: (1) The nature, seriousness and frequency of a crime; (2) The relation of the crime to the purpose for requiring the permit; (3) The extent to which a permit may offer an opportunity for the individual to engage in further criminal activity of the same or similar type as that in which the individual has previously been involved; and (4) The relationship of the crime to the ability, capacity or fitness required to perform the duties and discharge the responsibilities of a towing company owner. (d) Fee. The permit fee to operate a towing company under the terms and conditions of this article shall be payable as follows: At the time of the original or renewal application for a towing company permit, the applicant shall pay a fee of one hundred dollars ($100.00) as a nonrefundable application fee. If the application is approved by the chief of police, the applicant will be issued a permit to operate a towing company in the city. (e) Term. A permit issued pursuant to this section shall be valid for one (1) year from the date issued. { }-- 2-0,2000,- }— may GGRtiRUe-4G- share VehiGle sk)Fa a faGili+ioc and WG'Ress IA6at4GR (f) Rotation. The chief of police shall devise a rotation system for and operated by the permotted towing companies that wish to be used in non- consent tows. A tow truck company may be placed into the system by paying a fifty dollar ($50) annual fee. To participate in this program the owner must agree to the regulations promulgated by the chief for such. (Ord. No. 98-64, § 1, 10-6-98; Ord. No. 00-104, § 1, 12-19-00) Sec. 29-73. NGAGGnser Towing fees. (a) The maximum fees which may be charged by a towing company which performs non-consent tows pursuant to this article are as follows: (1) .Vehicles 10,000 pounds or less: $165.00 (2) Delft eprater::X25.80 (42) ."Drop" fee to release a vehicle which has been "hooked up" by a tow truck: $45. )0 60.00. (3) Towing surcharges and fuel adjustment fees are not allowed. (4) Reasonable recovery charges are allowed. Disputes are resolved by the chief. (5)--€xrtrae diem "t-Inti9R6 T . (5) A daily storage fee of not more than that allowed by state law. (b) All towing companies performing tows pursuant to this ordinance must accept major credit cards as payment for the fees provided for services rendered. (c) The chief of police will undertake a general review and survey of towing fees every two (2) years. A towing company may request that a rate study be performed by requesting same in writing to the city manager accompanied by a payment of $2,500. A towing company may submit any documentation or rate-related information along with that request. The findings of said studv will be considered in the rates adopted by the city council. (Ord. No. 98-64, § 1, 10-6-98) Sec. 29-74. Denial, suspension or revocation of any permit or license. (a) Investigation. The police department shall investigate all complaints arising from reported violations of this article. Upon completion of the investigation, the chief of police shall determine if a violation occurred. If the chief of police determines that a significant violation of this article occurred, the chief may suspend or revoke the permit or license according to the following standards: (1) Violation of any provision of this article, the Texas Transportation Code, Texas Vehicle Storage Facility Act, a6 it may be , or section of the Texas AdmiRistrat Occupations Code regarding operation of tow trucks, towing companies or vehicle storage facilities by owners, agents or employees of a towing company shall subject the towing company to the following administrative action regarding their towing company permit: a. First offense: Suspension of towing company permit for thirty (30) days. b. Second offense: Suspension of towing company permit for sixty (60) days. C. Third offense: Revocation of towing company permit for two (2) years. (b) Penalties independent and may be in addition to other penalties. The administrative penalty set forth in this section shall be independent of and may be in addition to any other penalties assessed pursuant to any violation of any ordinance of the city or statute or administrative code of the state. The determination of whether a violation is significant shall be within the sole discretion of the chief of police. (c) Time. Time limitations for computation of penalties regarding suspension or revocation of permits or licenses for repeat offense shall be calculated based on a two-year period from the date of the first offense for which a permit is suspended or revoked. The holder of a permit that was revoked may not, for a period of two years from the date of the revocation, apply for any new permits of the type that was revoked. (d) Notice. The chief shall provide written notice of any suspension, revocation or denial setting out the basis for the decision, giving the effective date for the suspension, revocation or denial and providing the appeal procedure. A suspension, revocation or denial shall become effective seven (7) days from the date that the chief of police notifies the permit holder of the suspension, revocation or denial unless an appeal is filed as provided herein. (e) Appeal procedure. Any appeal of a decision by the chief of police regarding a towing company permit must be in writing and must be submitted to the city manager's office prior to the effective date of the suspension, revocation.,-G�r denial or decision. The written request for appeal must set forth the basis for the appeal and specifically identify any error or misapplication of information or of this article by the chief of police regarding the deGi6iGn to de use. The city manager shall submit the appeal to the city council and city council may either hear the appeal or select a hearing officer to preside at any appeal hearing and the decision of the city council or such hearing officer shall be final. The appellant may appear at any hearing and it shall be the burden of the appellant to establish that the decision by the chief of police is incorrect. The chief of police shall be entitled to present any information or evidence which would support the chief's decision. The city council or hearing officer shall assess the evidence presented at the hearing and affirm, reverse or modify the decision of the chief by a suspension of the towing permit for up to thirty (30) days for a first offense, up to sixty (60) days for a second offense or revocation of the permit for up to two (2) years for a third offense. The city council or hearings officer shall affirm, reverse or modify any other decisions of the chief after assessing the evidence presented at the hearing_ (Ord. No. 98-64, § 1, 10-6-98) Sec. 29-75. Responsibilities--Tow truck operator; towing company. (a) Tow truck operator. All tow truck operators shall: (1) Obey all lawful orders given by any police officer and not in any manner interfere with any police officer in the performance of his/her duty. (2) Not remove any wrecked, disabled or illegally parked vehicle from any public roadway without authorization from a police officer; provided, however, that the driver of a stalled or disabled vehicle not involved in an accident may authorize a tow truck operator to remove his/her vehicle when no police officer is present. (3) Prior to performing any non consent tow or related service or on request of the owner or operator, furnish in writing to the owner or operator of the vehicle to be towed, a list of all charges that pertain to any towing services to be performed, including but not limited to: a. The fee schedule to be charged for the towing of a vehicle within the city limits. Fees related to towing of a vehicle outside of the city limits shall be by agreement between the tow company and the owner or operator of the vehicle to be towed. b. The method of payment of the fee. C. The name of the tow company picking up the vehicle. d. The telephone number(s) at which the tow company may be contacted. I e. The location to which the vehicle will be towed, if not specified by the owner, operator or agent of the owner of the vehicle. (4) Remove from the site from which any vehicle is removed all resulting wreckage or debris, including all broken glass unless otherwise directed by a police officer. "Resulting wreckage or debris" does not include the towed vehicle's load or cargo. (b) Towing company. The towing company shall: (1) Ensure that their tow truck arrives at the requested scene within thirty minutes of notification. (2) Keep full and complete books or records in accordance with sound business practices related to each and every non-consent vehicle tow pursuant to this article. (23) Permit any inspector or officer designated by the chief of police to, during normal business hours, inspect the premises, tow equipment, storage facilities, records of vehicles towed and records of fees and charges of each non-consent tow. (Ord. No. 98-64, § 1, 10-6-98) Sec. 29-76. Penalties; fines. (a) Any person violating any of the provisions of this article shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than eRe two hundred dollars ($-1-200.00) nor more than one thousand dollars ($61,000.00). Each day such violation is permitted or continued to exist shall be and is deemed to constitute a separate offense. (b) Any violation charged pursuant to this section shall be independent of and may be in addition to any administrative penalties which may be imposed regarding the suspension, revocation or denial of any permit or license granted under this article. (c) Missed call penalties: (1) Two (2) missed calls in a calendar month will result in a seven (7) day_ suspension from the rotation list. (2) Three (3) missed calls in a calendar month will result in a fifteen (15) day suspension from the rotation list. (3) Four (4) missed calls in a calendar month will result in a thirty (30) day suspension from the rotation list. (4) Five (5) missed calls in a calendar month will result in a one (1) year suspension from the rotation list. (Ord. No. 98-64, § 1, 10-6-98) _ _ _ Survey of Nonconsent Towing Rates _ December 10,2009 Beau a ont Abilene Baytown Houston Oran Port Arthur Tyler Waco r Existing Proposed _ Last Review or Update 1998 December, 2009 2008 2009 2008 2000 2005 2008 2008 i I I Providers Multiple (Multiple 'Multiple Multiple Multi le - Multiple t Multiple Sole Multple ITowin Ordinance Permit !Permit Not Regulated Contract Agreement w/HP ,Permit Permit - !Contract w/PD Not Re ulated 9 9 a ,Compliance with City Ordina ce I Corrective measures Not Regulated Positive Indicatio:s (Substantial Varia ce Substantial Variance Positive Indicatiorps INot Regulated I taken -- _- - - Other Considerations Sole Contractor for all of com liance I with TDLR ostin with TDLR ostin _ Towin Probable Conclusion n/a Rates are reliabl Rates are reliabl Rates are not reliable._ Rates are not reli ble. I Rates a I to so contractor situations -- --- -� --- - ---- !Agreement Fee Annual Fees Company Fee $100.001 $100.00) In/a $75.00 $100.00 $100.001 n/a n/a Fee per truck_ n/a ! $50.00 $500.00 _ $25.001 j $50.00 n/a n/a Rotation List $10 per truck $50 er comma _ Towing Fees _ Light Vehicles $85.001 $165.00 $150.001 $143.501 $85.00 $125.00 $110.00 - - - ---- 1 Accident Scene $215.00 lw/dolly or roll-back _-, $110.00 _ --- - ---I - $125.00 Subsequent transfer $65.00 ! _ Drop after Hookup + $45_00 $60.00 Prisoner Vehicle Winching Fee ! $45.00 er h ur Flare i - - -- - - - -- ---$3.50'each t he proposed fee covers Vehicles weighing 10,000 P ounds or le s. - Heavy Vehicles _ !Not Regulated Not Regulated I Not Regulated Not Regulated Not Regulated Heavy-duty Wrec ers !,Not Regulated Not Regulated $125.00 11 st hr Hourly,2 hr min. _ $75.00 > 1st hr, hrl Vehicles over 10,000 pound $218.00 - - -- --- Rescue/Air Bas $115.00 hrly per Yag Canal or Waterway - j -_ - $50.00 Waiting Time City sets rates for $45.00 per h $25.00'per half-hour I CRy sets payment for Other Fees Reasonable confiscated and Obandoned .fees per wrecker ! !confiscated and a Bandon $50 to$65 ! $45 City Code require compliance with state I _ storage Facilities rates listed below �- Nonconsent Lots 1M_ult_iple Multiple City Owned Multiple IMulti le - Imultipie Multiple ;Contract City Owned Daily, under 25 feet $5 to$20.00 $15.00 $20.00 $15.00 $15-00 per day $20.00 $20.00 to city Daily,25+feet $35.00 _ $35.00 !State rates orange Code 2 hours $35.00 Notification fee $50.00 $32.00 one day if less than 12 rs requires com lia ce $50.00 Impound fee $20.00 with state law. $50.00 $10.00 per day Administration fee $15.00 $10.00 Survey of Nonconsent Towing Rates _ --- - -- December 10, Beaumont Abilene Baytown Houston ! Orange 'Port Arthur Tyler_ _Waco Existing- xistm Proposers- I �LF Providers Multiple T�Multiple Multi le Multiple Multiple Multi le- +Multi le Sole _ 2008 s Rewew or U _ 1998 December, 2009 2008 2009__ 2008 - J - - 2000 2005 _l_8 Towing Ordinance Permit _ Te m_ _ _Not Regulated __-- Contract __ _ A reement w/HP Permit _ yPermit Contract w/PD Not Regulated -- - - �_. - — - - ce Postivelndicaho s Not Regulated - Compliance with City Ordina _--- ----__-'-- - -- --, � -� ce takenctive meas Ilr Re ulated of compliance lions lW thh TDLRIp stmgL Iw thh TDLR postin 'Sole Cam—r all r Other Considerations- Il-- _--in/a _ Rates are reliablea. Rates are reliabl�. Rates are not reliable. 4 -- Towin � -- - !L_ I -1 ion -- 1 - -_---- - reement Fee~ �.---- ilRat !Rates app stu —�I es are not reliible. to so a n/a C an 1. contractor stuab ns Fee ertru_cke x$100.00} --fin/a_ _+- $5000.L_____1______._$500.00 �__- -.$25.00, $100.00 n/a $100 00 In/a _$75 00 _ $100.00 - _L- L 1$50-per---- -_------- n/a n,/a-- Rotation List 4 - - _— $50.00 _ __-- -$10 per truck - -- T-- $1 0 $14350.--. $85.00 --- $125.00 _-. $110 _- Towi n Fees -t LighfVehicles j Accident Scene back $$80.00 1 ' r AcadentScene ---�+ --- L_-- _-_ - LDr�op a Hooku transfer--- .._--------- - i ---$60 00 _.565 001- j I`Pnsoner Vehicle _.-. .- -- --I F�rFlare n Fee _.-.. ---- $$3,501each.ur. e— _ - � p the proposed fee covers Jehicles weighing 1 x,000 pounds or le s..._ ,._ - I -- -- --�- -I HeavuY-vehicles Not Regulated Not Regulated Not Regulated _.iNot Regulated -__ - Not Regulated { Heavy-duty 1 5 e 1st hr Not Regulated Not Regulated j -_.� - _ - +Hour) 2 hr min. 4- �- $25.00 --- - P--- $218 00 - - - -- — -- ----� Vehi_cles over 10 000 ound h _ _-- �_ _ -- __. --- --_ t - -- -�----- $50,00 ...---- iRescue/Air Bags + - t __ !fees er wrecker!$2 0 per per^o City sets p and andon !Canal or Waterway` _ - L f ----- eer hrL _ $ half-hour c sets amen for Other Fees- - Reasonable Code requires compliance with slat $50 to$65 and abandoned - -� -. I ---_P_ I - __$45+---i 9 � � � t +_ W� Time � - 9 P-- Ci sets rates for 45 00+ Storage Facilities rates listed below �_ Da I 25+feet feet $5 to$35.00 515 00 $35 0 _ --_- - — -_T $1500 —_ Nonconsenl Lots Multi le Multiple _-�Ci Owned !Multiple (Multiple Mu_ltiple iMulti le Contract City Owned _ _ ---- p- er da _ y -- $35.00 N�tifcation fee $50.00 __ $32 00'. one day if less th n 12 h State rates - rcqu r s come lia ce 2 hours i $50.00 �- p Y 15 00 'It mpound fee $2600 _ _ _ with state law. $50.00 ___$_1.0_.00 per day ;Administration fee j_ $15 00 �- $10.00' ORDINANCE NO. ENTITLED AN ORDINANCE AMENDING CHAPTER 29, VEHICLES FOR HIRE, ARTICLE IV, TOW TRUCKS, TOW COMPANIES AND TOW TRUCK OPERATORS, SECTIONS 29-70, 29-71, 29-72,AND 29-73, SUBSECTION 29-74(a)(1) AND (e), SECTIONS 29-75 AND 29-76 OF THE CODE OF ORDINANCES; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL; AND PROVIDING A PENALTY. WHEREAS, the City of Beaumont endeavors to maintain a clear, comprehensible, and cohesive Code of Ordinances; and, WHEREAS, the City is therefore revising its Code to conform with current law and court interpretation; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: Section 1. That Chapter 29, Article IV, Section 29-70, be and the same is hereby amended to read as follows: Sec. 29-70. Definitions. As used in this article, the following terms shall have the respective meaning ascribed to them: Consent tow means any tow of a motor vehicle initiated by the owner or operator of the vehicle or by a person who has possession, custody, or control of the vehicle. The term does not include a tow of a motor vehicle initiated by a peace officer investigating a traffic accident or a traffic incident that involves the vehicle. Drop fee means the fee charged for a non-consent tow which is disengaged at the request of the vehicle's owner or operator while the towed vehicle is still at the location from which it is being removed. Missed call means the towing company was called and no contact made with a representative of the company or the towing company's tow truck did not respond to the scene within thirty (30) minutes of notification. Motor vehicle means a motor vehicle subject to registration under Chapter 501, Texas Transportation Code or any other device designed to be self-propelled in, on or by which a person or property may be transported on a public roadway. Non-consent tow means any tow of a motor vehicle that is not a consent tow. Operate means to drive or cause to be driven a tow truck on a public roadway. Operator means any person operating a tow truck on a public roadway of this state. Owner means a person owning, leasing or otherwise using either directly or indirectly a tow truck on a public roadway of this state. Person means an individual, corporation, organization, business trust, estate,trust, partnership, association or other legal entity. Public roadway means a public street, alley, road, right-of-way, or other public way, including paved and unpaved portions of the right-of-way. Recovery means actions taken to upright or otherwise move a vehicle to a position from which it can be towed. Tow truck means a motor vehicle, including a wrecker, equipped with a mechanical device used to tow, winch or otherwise move another motor vehicle. Towing company means an individual, association, corporation, or other legal entity that controls, operates, or directs the operation of one or more tow trucks over a public roadway in this state but does not include a political subdivision of the state. Vehicle storage facility means a garage, parking lot or any other type of facility owned by a person other than a governmental entity for storing or parking ten (10) or more vehicles a year. Section 2. That Chapter 29, Article IV, Section 29-71, be and the same is hereby amended to read as follows: Sec. 29-71. Operation of tow truck. (a) It shall be unlawful for any person to operate a tow truck in the city for the purpose of participation in or execution of any non-consent tow, unless the tow truck is: (1) Licensed and permitted as a tow truck pursuant to Texas statutes; and (2) Owned by a towing company registered and permitted by the city. (b) No person, operating a tow truck who performs a non-consent tow, may tow any motor vehicle to any location other than: (1) A vehicle storage facility located in the city operated under a permit for same issued by the Texas Department of Licensing and Regulation; or (2) With the consent of the towing company, a specific location in the city designated by the vehicle's owner. (c) No person shall stop or park any tow truck within one thousand (1000) feet of the scene or site of any vehicle accident or collision while any vehicle disabled, damaged or wrecked in such accident or collision remains at such scene or site unless: (1) It is licensed and permitted as a tow truck pursuant to state statutes and has been directed by or received the consent of a police officer at the scene to stop or park the tow truck within the one thousand-foot area; or (2) It is a tow truck which has been summoned to the scene or site of a vehicle accident by the owner of a vehicle involved in the accident and does not, in the opinion of any police officer investigating the accident, constitute a safety hazard to vehicles or persons at the scene or obstruct or interfere with the activities of the officers investigating the accident or scene. (d) No person, while on any public roadway or public property, may solicit in any manner, directly or indirectly, the business of towing, removing, repairing, storing, wrecking or buying any vehicle which is wrecked or disabled and on a public roadway. Section 3. That Chapter 29, Article IV, Section 29-72, be and the same is hereby amended to read as follows: Sec. 29-72. Permits for towing companies; required; procedure; fee; term. (a) Required. It shall be unlawful for any person to operate or cause to be operated any towing company in the city, without having first obtained a towing company permit from the city issued under this article to such person to operate a towing company within the city. (b) Application generally. The chief of police shall develop necessary forms to enact these provisions. Any person desiring to operate a towing company in the city shall make application with the police department for the issuance of a towing company permit. The applicants shall furnish all required information and supporting documents noted on the application form. A towing company permit shall not be issued by the chief of police unless the applicant meets all required provisions of this article, including but not limited to: (1) All information on the submitted application is true and accurate and all required supplemental documents or information has been furnished. (2) The towing company operates a vehicle storage facility in the city which is, at all times, licensed pursuant to the Texas Vehicle Storage Act, as it may be amended, and which is in compliance with all provisions of the Texas Vehicle Storage Facility Act and any provisions of the Texas Occupations Code relevant to operation of a vehicle storage facility. (3) The physical facility to be operated by the towing company meets the following requirements: a. The facility is in compliance with all zoning requirements of the city; b. The physical facility to be operated by the towing company is not a part of any other business which performs towing services and is not located at the same physical location as any other towing company; C. The physical location of the towing company has an office of not less than two hundred (200) square feet; d. The towing company has an active, published telephone number that is different from any other towing company and is not answered by an electronic answering device; and e. The towing company has a sign on the business premises identifying the towing company by the name as it appears on the license application, street address, telephone number, hours of business, and any vehicle storage facility license number issued for that location. Said sign shall be of a size that may be read from a distance of not less than one hundred fifty (150) feet. (c) Denial/suspension/revocation. An individual identified as an owner of a towing company on the application who has a felony conviction within the previous five (5) years that, in any fashion, relates to the duties and responsibilities involved in the operation of a towing company or which directly effects such person's fitness to perform as a towing company owner may have their application for permit denied or have any permit suspended or revoked by the chief of police. In determining whether an individual's criminal conviction (which includes the entry of a deferred judgment) relates to the performance of a towing company owner, the chief may consider the following factors: (1) The nature, seriousness and frequency of a crime; (2) The relation of the crime to the purpose for requiring the permit; (3) The extent to which a permit may offer an opportunity for the individual to engage in further criminal activity of the same or similar type as that in which the individual has previously been involved; and (4) The relationship of the crime to the ability, capacity or fitness required to perform the duties and discharge the responsibilities of a towing company owner. (d) Fee. The permit fee to operate a towing company under the terms and conditions of this article shall be payable as follows: At the time of the original or renewal application for a towing company permit, the applicant shall pay a fee of one hundred dollars ($100.00) as a nonrefundable application fee. If the application is approved by the chief of police, the applicant will be issued a permit to operate a towing company in the city. (e) Term. A permit issued pursuant to this section shall be valid for one (1) year from the date issued. (f) Rotation. The chief of police shall devise a rotation system for towing companies that wish to be used in non-consent tows. A tow truck company may be placed into the system by paying a fifty dollar ($50) annual fee. To participate in this program, the owner must agree to the regulations promulgated by the chief for such. Section 4. That Chapter 29, Article IV, Section 29-73, be and the same is hereby amended to read as follows: Sec. 29-73. Towing fees. (a) The maximum fees which may be charged by a towing company which performs non-consent tows pursuant to this article are as follows: (1) Vehicles 10,000 pounds or less: $165.00. (2) "Drop" fee to release a vehicle which has been "hooked up" by a tow truck: $60.00. (3) Towing surcharges and fuel adjustment fees are not allowed. (4) Reasonable recovery charges are allowed. Disputes are resolved by the chief. (5) A daily storage fee of not more than that allowed by state law. (b) All towing companies performing tows pursuant to this ordinance must accept major credit cards as payment for the fees provided for services rendered. (c) The chief of police will undertake a general review and survey of towing fees every two (2) years. A towing company may request that a rate study be performed by requesting same in writing to the city manager accompanied by a payment of $2,500. A towing company may submit any documentation or rate-related information along with that request. The findings of said study will be considered in the rates adopted by the city council. Section 5. That Chapter 29, Article IV, Subsections 29-74(a)(1) and (e), be and the same is hereby amended to read as follows: Sec. 29-74. Denial, suspension or revocation of any permit or license. (a) Investigation. The police department shall investigate all complaints arising from reported violations of this article. Upon completion of the investigation, the chief of police shall determine if a violation occurred. If the chief of police determines that a significant violation of this article occurred, the chief may suspend or revoke the permit or license according to the following standards: (1) Violation of any provision of this article, the Texas Transportation Code, Texas Vehicle Storage Facility Act, or section of the Texas Occupations Code regarding operation of tow trucks, towing companies or vehicle storage facilities by owners, agents or employees of a towing company shall subject the towing company to the following administrative action regarding their towing company permit: a. First offense: Suspension of towing company permit for thirty (30) days. b. Second offense: Suspension of towing company permit for sixty (60) days. C. Third offense: Revocation of towing company permit for two (2)years. (e) Appeal procedure. Any appeal of a decision by the chief of police regarding a towing company permit must be in writing and must be submitted to the city manager's office prior to the effective date of the suspension, revocation, denial or decision. The written request for appeal must set forth the basis for the appeal and specifically identify any error or misapplication of information or of this article by the chief of police regarding the. The city manager shall submit the appeal to the city council and city council may either hear the appeal or select a hearing officer to preside at any appeal hearing and the decision of the city council or such hearing officer shall be final. The appellant may appear at any hearing and it shall be the burden of the appellant to establish that the decision by the chief of police is incorrect. The chief of police shall be entitled to present any information or evidence which would support the chief's decision. The city council or hearing officer shall assess the evidence presented at the hearing and affirm, reverse or modify the decision of the chief by a suspension of the towing permit for up to thirty (30) days for a first offense, up to sixty (60) days for a second offense or revocation of the permit for up to two (2) years for a third offense. The city council or hearings officer shall affirm, reverse or modify any other decisions of the chief after assessing the evidence presented at the hearing. Section 6. That Chapter 29, Article IV, Section 29-75, be and the same is hereby amended to read as follows: Sec. 29-75. Responsibilities--Tow truck operator; towing company. (a) Tow truck operator. All tow truck operators shall: (1) Obey all lawful orders given by any police officer and not in any manner interfere with any police officer in the performance of his/her duty. (2) Not remove any wrecked, disabled or illegally parked vehicle from any public roadway without authorization from a police officer; provided, however, that the driver of a stalled or disabled vehicle not involved in an accident may authorize a tow truck operator to remove his/her vehicle when no police officer is present. (3) Prior to performing any non-consent tow or related service or on request of the owner or operator, furnish in writing to the owner or operator of the vehicle to be towed, a list of all charges that pertain to any towing services to be performed, including but not limited to: a. The fee schedule to be charged for the towing of a vehicle within the city limits. Fees related to towing of a vehicle outside of the city limits shall be by agreement between the tow company and the owner or operator of the vehicle to be towed. b. The method of payment of the fee. C. The name of the tow company picking up the vehicle. d. The telephone number(s) at which the tow company may be contacted. e. The location to which the vehicle will be towed, if not specified by the owner, operator or agent of the owner of the vehicle. (4) Remove from the site from which any vehicle is removed all resulting wreckage or debris, including all broken glass unless otherwise directed by a police officer. "Resulting wreckage or debris" does not include the towed vehicle's load or cargo. (b) Towing company. The towing company shall: (1) Ensure that their tow truck arrives at the requested scene within thirty (30) minutes of notification. (2) Keep full and complete books or records in accordance with sound business practices related to each and every non-consent vehicle tow pursuant to this article. (3) Permit any inspector or officer designated by the chief of police to, during normal business hours, inspect the premises, tow equipment, storage facilities, records of vehicles towed and records of fees and charges of each non-consent tow. Section 7. That Chapter 29, Article IV, Section 29-76, be and the same is hereby amended to read as follows: Sec. 29-76. Penalties; fines. (a) Any person violating any of the provisions of this article shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred dollars ($200.00) nor more than one thousand dollars ($1,000.00). Each day such violation is permitted or continued to exist shall be and is deemed to constitute a separate offense. (b) Any violation charged pursuant to this section shall be independent of and may be in addition to any administrative penalties which may be imposed regarding the suspension, revocation or denial of any permit or license granted under this article. (c) Missed call penalties: (1) Two (2) missed calls in a calendar month will result in a seven (7) day suspension from the rotation list. (2) Three (3) missed calls in a calendar month will result in a fifteen (15) day suspension from the rotation list. (3) Four (4) missed calls in a calendar month will result in a thirty (30) day suspension from the rotation list. (4) Five (5) missed calls in a calendar month will result in a one (1) year suspension from the rotation list. Section 8. That if any section, subsection, sentence, clause, or phrase of this ordinance, or the 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 9. That all ordinances or parts of ordinances in conflict herewith are repealed to the extent of the conflict only. Section 10. That any person who violates 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 on this the 22nd day of December, 2009. - Mayor Becky Ames - 2 December 22, 2009 Consider approving the purchase of two grappler trucks for use by the Solid Waste Division RIGS WITH OPPORTUNITY r T • E • x • A • S City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Laura Clark, Chief Financial Officer/ MEETING DATE: December 22, 2009 REQUESTED ACTION: Council consider approving the purchase of two (2) grappler trucks for use by the Solid Waste Division. RECOMMENDATION The administration recommends approval of the purchase from Chastang's Bayou City Autocar of Houston in the amount of$423,026. BACKGROUND Pricing for the grappler trucks was obtained through the BuyBoard Cooperative Purchasing Program. Buyboard is a cooperative purchasing association which provides cities and political subdivisions with the means to purchase specialized equipment at volume prices. BuyBoard complies with the State of Texas procurement statutes. The purchase price of$423,026 includes the BuyBoard administrative fee of$400. These grappler trucks will be used by the Solid Waste Division for heavy trash, debris and large tree removal. These grappler trucks will be replacing Unit 6121, which is a 1989 model, and Unit 3267, which is a 1997 model. The old units will be disposed of according to the City's surplus equipment disposal policy. The basic warranty provided is twelve(12) months. Warranty service is available from the local Caterpillar dealer, Mustang Tractor, of Beaumont. Delivery is estimated at one hundred eighty (180) to two hundred ten (2 10) days. BUDGETARY IMPACT Funds are budgeted in the Solid Waste Fund. RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be, and he is hereby, authorized to approve the purchase of two (2) grappler trucks from Chastang's Bayou City Autocar of Houston, Texas, in the amount of$423,026 through the BuyBoard Cooperative Purchasing Program for use by the Solid Waste Division. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 22nd day of December, 2009. - Mayor Becky Ames - 3 December 22, 2009 Consider approving a maintenance agreement for Police, Fire and EMS public safety software support RICH WITH OPPORTUNITY r A,[I 1�1 C1 11 T • E • x • A • s City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Bart Bartkowiak, Chief Technology Officer g$ MEETING DATE: December 22, 2009 REQUESTED ACTION: Council consider renewal of an annual maintenance agreement for SunGard Public Sector software support. RECOMMENDATION The Administration recommends payment of an invoice to SunGard Public Sector for the renewal of an annual maintenance agreement for Police, Fire, and EMS public safety software support in the amount of$227,073. BACKGROUND SunGard Public Sector software is used by the Police, Fire, and EMS Departments. This purchase is exempt from competitive bidding since it is available from only one (1) source having exclusive rights to modify and maintain the software. The software maintenance agreement provides twenty-four/seven unlimited telephone support for 911 dispatching; Monday- Friday, 8-5 support for mobile computers, electronic field reporting, and all records management applications, and provides annual software upgrades. This agreement is for an annual period beginning January 2010 and includes the following applications. Software Applications Contract Amount OSSI Computer Aided Dispatching with Mapping $58,005.00 OSSI Roster Module $1,170.00 OSSI Firehouse Records Interface $990.00 OSSI EMS Interface to Zoll Patient Billing $1,350.00 OSSI CAD Resource Monitor $9,990.00 Records Management $48,292.80 Accident Module $5,928.00 Training Module $3,040.00 Mobile Dispatching and Field Reporting $58,011.20 Automatic Vehicle Locator System $14,484.00 Integrated State Message Switch $10,674.00 Police 2 Citizen $2,000.00 Evidence Notification with bar coding $2,556.00 Gang Module $1,200.00 Quartermaster Module $1,040.00 Animal Services and K9 $2,272.00 Custom Interfaces $6,070.00 Total $227,073.00 BUDGETARY IMPACT The maintenance contract is budgeted and will be funded from the General Fund. I RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT- THAT the City Manager be, and he is hereby, authorized to pay an invoice in the amount of $227,073 to SunGard Public Sector for the renewal of an annual maintenance agreement for Police, Fire and EMS public safety software support beginning January, 2010. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 22nd day of December, 2009. - Mayor Becky Ames - 4 December 22,2009 Consider approving the purchase of two dump trucks and two asphalt patching machines for use by the Streets and Drainage Division RICH WITH OPPORTUNITY r T • E • x - A - S City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Laura Clark, Chief Financial OfficeF MEETING DATE: December 22, 2009 REQUESTED ACTION: Council consider approving the purchase of two (2) dump trucks and two (2)truck-mounted ProPatch asphalt patching machines for use by the Streets and Drainage Division. RECOMMENDATION The administration recommends approval of the purchase from Southwest International Trucks Inc., of Arlington, Texas in the amount of$411,379. BACKGROUND Pricing for the vehicles was obtained through the BuyBoard Cooperative Purchasing Program. Buyboard is a cooperative purchasing association which provides cities and political subdivisions with the means to purchase specialized equipment at volume prices. BuyBoard complies with the State of Texas procurement statutes. The purchase price of$411,379 includes the BuyBoard administrative fee of$600. The International Model 4300 dump trucks are used by Streets and Drainage to pull trailer- mounted pothole patchers. The dump trucks being replaced are 1995 models. The ProPatch asphalt patching machines, mounted on International Model 7400 truck chassis, are used for larger street section repairs. The units being replaced are a 1999 model ProPatch and a 1994 Gradall. The old units will be disposed of according to the City's surplus equipment disposal policy. The basic warranty on the dump trucks is two years with unlimited mileage. Warranty on the Propatch body is 12 months. Warranty service is available from the International dealer in Houston. Delivery is estimated at sixty(60)to one hundred eighty (180) days. BUDGETARY IMPACT Funds are budgeted in the Capital Reserve Fund. RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be, and he is hereby, authorized to approve the purchase of two (2) dump trucks and two (2) ProPatch truck-mounted asphalt patching machines from Southwest International Trucks, Inc., of Arlington, Texas, in the amount of $411,379 through the BuyBoard Cooperative Purchasing Program for use by the Streets and Drainage Division. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 22nd day of December, 2009. - Mayor Becky Ames - i