HomeMy WebLinkAboutRES 00-064 RESOLUTION NO.
BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF BEAUMONT:
THAT the City Manager is hereby authorized to execute a lease agreement with the State
of Texas General Land Office for coastal public lands located on the Neches River at
Riverfront Park. The agreement is substantially in the form attached hereto as Exhibit "A."
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 7,r- day of
:2)2a1c"- , 2000.
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- Mayor -
The State of Texas
O��L ANA
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Austin,Texas
RENEWAL OF
COASTAL LEASE NO.CL-880016
STATE OF TEXAS §
§ KNOW ALL BY THESE PRESENTS:
COUNTY OF JEFFERSON §
This Coastal Lease No. CL880016 (the "Agreement"), is issued by virtue of the authority granted in
Chapter 33, TEX. NAT. RES. CODE ANN. (Vernon Supp.), Title 31, TEX. ADNIIN. CODE, Chapter
155 (West), and all other applicable statutes and rules, as the same may be promulgated and/or amended
from time to time.
ARTICLE I. PARTIES
1.01. In consideration of the mutual covenants and agreements set forth herein, the STATE OF TEXAS,
acting by and through the School Land Board and its Chairman, David Dewhurst, Commissioner of the
General Land Office (the "State"), hereby authorizes the City Of Beaumont("Lessee") whose address is
PO Box 3827, Beaumont, TX 77704-3827, telephone number (409) 880-3764, to use the "Premises"
(defined below)for the purposes identified in Article V below.
ARTICLE H. PREMISES
2.01. The coastal public land Lessee may use is described as follows:
A portion of the Neches River,Jefferson County,Texas(the"Premises").The Premises are
further described and depicted on Exhibits A,B,and C attached hereto and incorporated herein
by reference.
2.02. Lessee acknowledges and agrees that when any authorized improvements are placed on the
Premises,the location of such improvements shall thereby become fixed at such location and shall not be
changed except by a written amendment to this Agreement.
2.03. LESSEE HAS INSPECTED THE PHYSICAL AND TOPOGRAPHIC CONDITION OF THE PREMISES AND
ACCEPTS THE SAME "AS IS", IN ITS EXISTING PHYSICAL AND TOPOGRAPHIC CONDITION. THE STATE
DISCLAIMS ANY AND ALL WARRANTIES OF HABITABILITY,MERCHANTABILITY,SUITABILITY,FITNESS
FOR ANY PURPOSE,AND ANY OTHER WARRANTY WHATSOEVER NOT EXPRESSLY SET FORTH IN THIS
AGREEMENT. THE STATE AND LESSEE HEREBY ACKNOWLEDGE AND AGREE THAT USE OF THE TERM
"GRANT" IN NO WAY IMPLIES THAT THIS EASEMENT IS FREE OF LIENS, ENCUMBRANCES AND/OR
PRIOR RIGHTS. NOTICE IS HEREBY GIVEN TO LESSEE THAT ANY PRIOR GRANT AND/OR
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EXHIBIT "A"
ENCUMBRANCE MAY BE OF RECORD AND LESSEE IS ADVISED TO EXAMINE THE RECORDS IN THE
ARCHIVES AND RECORDS DIVISION OF THE GENERAL LAND OFFICE, 1700 NORTH CONGRESS AVENUE,
AUSTIN,TEXAS 78701-1495, AND ALL RECORDS OF THE COUNTY AND STATE IN WHICH THE PREMISES
ARE LOCATED. LESSEE IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF THE STATE
REGARDING ANY ASPECT OF THE PREMISES, BUT IS RELYING ON LESSEE'S OWN INSPECTION OF THE
PREMISES.
ARTICLE III.TERM
3.01. This Agreement is for a period of five (5) years, beginning on April 18, 1999, and ending on
April 17,2004, unless renewed or terminated as provided herein.
ARTICLE IV. CONSIDERATION AND TAXES
4.01. As consideration("Consideration")for the right to use the Premises, Lessee agrees to pay the State
the sum of Twenty-Five And 00/100 Dollars-(525.00) for use of the Premises. The Consideration is
payable upon execution of the Agreement.No other payment is required.
4.02. In addition to the above, Lessee shall pay and discharge any and all taxes, general and special
assessments, and other charges which during the term of this Agreement may be levied on or assessed
against the Premises or any improvements constructed or installed thereon ("Taxes"). Lessee shall pay
such Taxes at least five(5)days prior to the date of delinquency directly to the authority,official or entity
charged with collection. Lessee may, in good faith and at its sole cost and expense, contest any Tax and
shall be obligated to pay the contested amount only if and when finally determined to be owed.
ARTICLE V. USE OF THE PREMISES
5.01. A. In connection with Lessee's use of the Premises, Lessee is authorized to maintain the following
improvements:a public wood piling pier consisting of a 6' x I F walkway, a 13' x 378' boardwalk, and a
triangular-shaped 290 square foot deck comprising a total encumbrance of 5,270 square feet of coastal
public land, as depicted on Exhibit C attached hereto and incorporated herein by reference
("Improvements"). Lessee shall not use the Premises for any other purpose without prior written consent
from the State, which consent may be granted or withheld in the State's sole discretion. Lessee is
specifically prohibited from using or permitting the use of the Premises for any commercial or illegal
purpose. Provided the State does not unreasonably interfere with Lessee's use of the Premises,the State
may use or permit the use of the Premises for any purpose consistent with Lessee's use of the Premises.
B. Lessee shall comply, and cause its officers, employees, agents, representatives, contractors and
invitees to comply, with applicable laws, ordinances, rules and regulations of all governing authorities
with jurisdiction over the Premises. Lessee is specifically notified of its need to comply with laws and
regulations enacted for the purpose of protecting and preserving public lands and waters.
C. Lessee shall permit the State's agents, representatives, and employees to enter into and on the
leased premises at all reasonable times for the purpose of inspection and any other reasonable purpose
necessary to protect the State's interest in the leased Premises.
D. Lessee may not charge any holder of a valid mineral lease or other grant of interest from the
State for surface damages for the use of the leased Premises. All such damage payments shall be made
directly to the State. Lessee, however, may seek compensation for damages to personal property in an
action against the holder of a valid mineral lease or other grant-of-interest issued by the State. This
damage limitation in no way limits the liability of third parties in an action at law for damages inflicted
upon Lessee by acts of negligence.
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E. Except as otherwise provided herein, Lessee shall have the right to file a criminal complaint or
institute civil proceedings to protect Lessee's right of possession and leasehold interest in the leased
Premises.
F. Lessee shall use the highest degree of care and all appropriate safeguards to prevent pollution of
air, ground and water in and around the Premises, and to protect and preserve natural resources and
wildlife habitat. In the event of pollution of or damage to natural resources in or around the Premises
which is the result of an act or omission of Lessee, its officers, employees, agents, representatives,
contractors, and/or invitees, Lessee shall immediately notify the State and undertake all required and
appropriate action to remedy the same. Lessee shall be liable for all damages and/or mitigation to the
Premises and public lands and waters as a result of such act or omission.
G. LESSEE IS EXPRESSLY PLACED ON NOTICE OF THE NATIONAL HISTORICAL PRESERVATION
ACT OF 1966, (PB-89-66, 80 STATUTE 915; §470) AND THE ANTIQUITIES CODE OF TEXAS, CHAPTER 191,
TEX. NAT. RES. CODE ANN. (VERNON 1999 SUPP.). IN THE EVENT THAT ANY SITE, OBJECT, LOCATION,
ARTIFACT OR OTHER FEATURE OF ARCHEOLOGICAL, SCIENTIFIC, EDUCATIONAL, CULTURAL OR
HISTORIC INTEREST IS ENCOUNTERED DURING THE ACTIVITIES AUTHORIZED BY THIS EASEMENT,
LESSEE WILL IMMEDIATELY CEASE SUCH ACTIVITIES AND WILL IMMEDIATELY NOTIFY GRANTOR
AND THE TEXAS HISTORICAL COMMISSION,P.O.BOX 12276,AUSTIN,TEXAS 78711,SO THAT ADEQUATE
MEASURES MAY BE UNDERTAKEN TO PROTECT OR RECOVER SUCH DISCOVERIES OR FINDINGS, AS
APPROPRIATE.
5.02. A. Lessee's use of the Premises is subject to compliance with the following covenants, obligations
and conditions(the"Special Conditions"):None
B. Prior to undertaking maintenance, repair or modification activities with regard to the
Improvements on the Premises, Lessee shall provide written notice of the terms of this Agreement,
including the Special Conditions, to each person or entity authorized by Lessee to perform any such
activity on its behalf. Lessee shall retain a copy of each such written notice provided to its agents,
representatives, employees, and/or contractors under this provision and, if a dispute arises concerning
construction or installation of the Improvements, Lessee shall provide the State with a copy of all
applicable notices within ten (10) days of the State's written request. Lessee's failure to maintain and
provide each required written notice shall constitute a default under this Agreement.
5.03. If Lessee fails to maintain and/or repair Improvements in good condition and repair, such failure
shall constitute a default under this Agreement and the State may,at its option,terminate this Agreement
upon written notice to Lessee or pursue a remedy under Section 513021,TEX.NAT.RES.CODE ANN.
(Vernon Supp.). If Lessee constructs improvements other than those authorized in Article V, such
improvements shall constitute illegal structures and the State may,at its option,terminate this Agreement
or pursue a remedy under Section 51302,et seq.,TEX.NAT.RES.CODE ANN.(Vernon Supp.).
ARTICLE VI. ASSIGNMENTS and SUBLEASES
6.01. LESSEE SHALL NOT ASSIGN THIS AGREEMENT OR THE RIGHTS GRANTED HEREIN, OR
SUBLEASE ANY PORTION OF THE PREMISES, IN WHOLE OR PART, TO ANY THIRD PARTY FOR ANY
PURPOSE WITHOUT THE PRIOR WRITTEN CONSENT OF THE STATE, WHICH MAY BE GRANTED OR
WITHHELD IN THE STATE'S SOLE DISCRETION. ANY UNAUTHORIZED ASSIGNMENT OR SUBLEASE
SHALL BE VOID AND OF NO EFFECT, AND SUCH ASSIGNMENT OR SUBLEASE SHALL NOT RELIEVE
LESSEE OF LIABILITY UNDER THIS AGREEMENT.
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ARTICLE VII. INDEMNITY
7.01. LESSEE AGREES TO INDEMNIFY AND HOLD THE STATE, ITS SUCCESSORS,ASSIGNS,OFFICERS,
AGENTS, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES (THE "INDEMNIFIED PARTIES")
HARMLESS FROM AND AGAINST ALL CLAIMS, PROCEEDINGS, ACTIONS, DAMAGES, JUDGMENTS,
LIABILITIES, AWARDS AND EXPENSES WHATSOEVER, INCLUDING STRICT LIABILITY CLAIMS
("CLAIMS") WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF OR THE
NEGLIGENCE OF THE INDEMNIFIED PARTIES,THAT MAY BE BROUGHT, INSTITUTED OR AWARDED ON
ACCOUNT OF OR GROWING OUT OF ANY AND ALL INJURIES OR DAMAGES, INCLUDING DEATH, TO
PERSONS OR PROPERTY RELATING TO OR RESULTING FROM, DIRECTLY OR INDIRECTLY: (1) ANY
OCCURRENCE IN, UPON, AT OR FROM THE PREMISES OR ANY PART THEREOF, OR (II) THE USE OR
OCCUPANCY OF THE PREMISES OR ANY PART THEREOF, TOGETHER WITH ANY AND ALL LOSSES
THERETO, INCLUDING, WITHOUT LIMITATION, ALL COSTS OF DEFENDING AGAINST, INVESTIGATING
AND SETTLING THE CLAIMS. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO THAT THE
INDEMNITY PROVIDED FOR IN THIS SECTION 7.01 IS AN INDEMNITY BY LESSEE TO INDEMNIFY AND
PROTECT THE INDEMNIFIED PARTIES FROM THE CONSEQUENCES OF THE INDEMNIFIED PARTIES'OWN
NEGLIGENCE WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE CLAIM. THIS INDEMNITY
SHALL HAVE NO APPLICATION TO ANY CLAIM WHERE THE CLAIM RESULTS FROM THE SOLE
NEGLIGENCE OF THE STATE. LESSEE'S OBLIGATION OF INDEMNITY SET FORTH HEREIN SHALL
SURVIVE EXPIRATION OF THIS AGREEMENT.
ARTICLE VIII. DEFAULT,TERMINATION and EXPIRATION
8.01. If Lessee fails or refuses to remedy a default under this Agreement within thirty(30) days of the
State's written notice specifying such default, the State may terminate this Agreement by sending written
notice of termination to Lessee in accordance with Article IX. Upon the effective date of such notice,this
Agreement shall terminate and neither party shall have any further rights or obligations except for those
accruing prior to the effective date of termination and/or those which specifically survive termination of
this Agreement.
8.02. Unless waived in writing by the State prior to termination of this Agreement, Lessee shall,within
one hundred twenty (120) days from the termination date, remove all personal property, structures and
improvements (including, without limitation, the Improvements) from the Premises and restore the
Premises (and all other property affected by Lessee's removal activities) to the same condition that
existed prior to the placement, construction, or installation thereof on the Premises. Lessee's activities
shall be conducted in accordance with General Land Office guidelines in effect at the time of such
activity, including,without limitation, specific techniques required for protection of natural resources and
mitigation, or payment in lieu of mitigation, for damages resulting from removal activity. Upon such
termination Lessee shall notify the State in writing within ten(10)days following completion of Lessee's
removal and restoration activity.Lessee's obligations to perform or undertake any specific activity under
this Agreement, including the foregoing removal provision,shall survive termination of this Agreement.
ARTICLE IX. NOTICE AND INFORMATION REQUIREMENTS
9.01. A. Any notice given under the terms of this Agreement shall be in writing and either delivered by
hand, by facsimile or sent by United States first class mail, adequate postage prepaid, if for the State to
Deputy Commissioner, Asset Inspections, 1700 North Congress Avenue, Austin, Texas 78701-1495, and
if for Lessee, to the City Of Beaumont, PO Box 3827, Beaumont, TX 77704-3827. Any party's address
may be changed from time to time by such party by giving notice as provided above, except that the
Premises may not be used by Lessee as the sole notice address. No change of address of either party
shall be binding on the other party until notice of such change of address is given as herein provided.
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B. For purposes of the calculation of various time periods referred to in this Agreement, notice
delivered by hand shall be deemed received when delivered to the place for giving notice to a party
referred to above. Notice mailed in the manner provided above shall be deemed completed upon the
earlier to occur of(i) actual receipt as indicated on the signed return receipt, or (ii) three (3) days after
posting as herein provided.
9.02. Lessee shall provide written notice to the State of any change in Lessee address within ten (10)
business days of such change.
9.03. Lessee shall provide the State with information reasonably requested in writing within thirty(30)
days of such request.
ARTICLE X. MISCELLANEOUS PROVISIONS
10.01. Neither acceptance of Consideration or any other sum payable under this Agreement (or any
portion thereof) by the State, nor failure by the-State to complain of any act or omission of Lessee, shall
constitute a waiver by the State of its rights under this Agreement. Waiver by the State of any covenant,
duty or obligation of Lessee under this Agreement shall be in writing and signed by a duly authorized
representative of the State. Waiver by the State shall be limited to the act or omission specified in writing
and shall not constitute a waiver of any other covenant, duty or obligation of Lessee under this
Agreement,whether of the same or different subject matter.
10.02. All monetary obligations of the State and Lessee (including, without limitation, any monetary
obligation for damages for any breach of the respective covenants, duties or obligations of either party
hereunder)are performable exclusively in Austin,Travis County,Texas.
10.03. This instrument, including exhibits,constitutes the entire agreement between the State and Lessee
and no prior written or oral or contemporaneous oral promises, warranties or representations shall be
binding. This Agreement shall not be amended except by written instrument signed by the State and
Lessee.
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IN TESTIMONY WHEREOF,witness my hand and the Seal of Office this day of
THE STATE OF TEXAS LESSEE:
City Of Beaumont
By: By:
David Dewhurst, Commissioner (signature)
General Land Office
Chairman, School Land Board
(Printed Name)
Date:
APPROVED:
Content:
Legal:
Deputy:
Executive:
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RIVERFRONT PARK, CL 880016
BEAUMONT,TX 11/12/99-T. ELLIS
EXHIBIT C