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HomeMy WebLinkAboutRES 05-099 RESOLUTION NO. 05-099 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to renew a five (5) year lease agreement effective June 19, 2005 to June 18, 2010, with the State of Texas for coastal public lands on the Neches River. The agreement is substantially in the form attached hereto as Exhibit "A" and made a part hereof for all purposes. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 26th day of April, 2005. Umo, 6 - May 6r Evelyn M. Lord - i The State of Texas ar Austin,Texas .RENEWAL OF COASTAL LEASE NO. CL940006 STATE OF TEXAS § COUNTY OF JEFFERSON § KNOW ALL MEN BY THESE PRESENTS: This Coastal Lease No. CL940006 (the "Agreement") is issued by virtue of the authority granted in Chapter 33, TEX. NAT. RES. CODE ANN. and Title 31,TEX. ADMIN. CODE, Chapter 155 and all amendments thereto, and all other applicable statutes and rules,as the same may be promulgated and/or amended from time to time. ARTICLE 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, the Commissioner of the General Land Office (the "State" hereby authorizes the City Of Beaumont(the"Lessee")whose address is PO Box 3827, Beaumont, TX 77704-3827, , ))' use the"Premises"(defined below)for the purposes identified in Article V below. ARTICLE II. 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 AGREEMENT IS FREE OF LIENS, ENCUMBRANCES AND/OR PRIOR RIGHTS. NOTICE IS HEREBY GIVEN TO LESSEE THAT ANY PRIOR GRANT AND/OR ENCUMBRANCE MAY BE OF RECORD AND LESSEE IS ADVISED TO EXAMINE THE RECORDS IN THE ARCHIVES AND RECORDS DIVISION OF THE GENERAL LAND OFFICE, 1700 NORTH CONGRESS AVENUE,.AUSTIN, TEXAS 78701-1495,AND ALL RECORDS OF THE COUNTY IN WHICH THE PREMISES ARE LOCATED. LESSEE IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF THE STATE REGARDING ANY ASPECT OF THE PREMISES,BUT IS RELYING ON LESSEE'S OWN INSPECTION OF THE PREMISES. CL940006 jcrow 1 renewcl.doc v 2.0 EXHIBIT "A" ARTICLE III. TERM 3.01. This Agreement is for a period of five (5) years, beginning on June 19, 2005, and ending on June 18, 2010, unless renewed or terminated as provided herein. ARTICLE IV. CONSIDERATION AND TAXES 4.01. As consideration(the "Consideration") for the right to use the Premises,Lessee agrees to pay the State the sum of Twenty-five and 00/100 Dollars($25.00)as an application fee.No other consideration is required. 4.02. In addition to the above, Lessee shall pay and discharge any and all taxes, general and special assessments, and other charges which during the term of this Agreement may be levied on or assessed against the Premises or any improvements constructed or installed thereon(the"Taxes"). Lessee shall pay such Taxes at least five(5)days prior to the date of delinquency directly to the authority, official or entity charged with collection. Lessee may, in good faith and at its sole cost and expense, contest any Tax and shall be obligated to pay the contested amount only if and when finally determined to be owed. ARTICLE V. USE OF THE PREMISES 5.01. A. In connection with Lessee's use of the Premises, Lessee may construct and/or maintain the following improvements: a public wood piling pier consisting of 4'.X 49', 6' X 49', 4' X 50'; 5' X 89', 5'X 13', 5'X 95' and two (2) 4' X 31' walkways comprising an total encumbrance of 1,923 square feet; and a 4' X 20' area of no-fee rirpap encumbering an additional 80 square feet; and two (2) 19'X 30' concrete boat ramps encumbering an additional 1,140 square feet; and, a 5' X 95' and 13' X 84' areas of fill encumbering an additional 1,567 square feet, for a total project encumbrance of 4,710 square feet of coastal public land, as depicted on Exhibit C attached hereto and incorporated herein by reference (the "Improvements"). Lessee shall not use the.Premises for any other purpose without prior written consent from the State, which consent may be granted or withheld in the State's sole discretion. Lessee is specifically prohibited from using or permitting the use of the Premises for any commercial or illegal purpose. Provided the State does not unreasonably interfere with Lessee's use of the Premises, the State may use or permit the use of the Premises for any purpose consistent with Lessee's use of the Premises. B. Lessee shall comply, and cause its officers, employees, agents, representatives, contractors and invitees to comply, with applicable laws, ordinances, rules and regulations of all governing authorities with jurisdiction over the Premises. Lessee is specifically notified of its need to comply with laws and regulations enacted for the purpose of protecting and preserving public lands and waters. C. Lessee shall permit the State's agents, representatives, and employees to enter into and on the leased premises at all reasonable times for the purpose of inspection and any other reasonable purpose necessary to protect the State's interest in the leased Premises. D. Lessee may not charge any holder of a valid mineral lease or other grant of interest from the State for surface damages for the use of the leased Premises. All such damage payments shall be made directly to the State. Lessee, however, may seek compensation for damages to personal property in an action against the holder of a valid mineral lease or other grant-of-interest issued by the State. This damage limitation in no way limits the liability of third parties in an action at law for damages inflicted upon Lessee by acts of negligence. E. Except as otherwise provided herein, Lessee shall have the right to file a criminal complaint or institute civil proceedings to protect Lessee's right of possession and leasehold interest in the leased Premises. F. Lessee shall use the highest degree of care and all appropriate safeguards to prevent pollution of air, ground and water in and around the Premises, and to protect and preserve natural resources and wildlife habitat. In the event of pollution of or damage to natural resources in or around the Premises which is the result of an act or omission of Lessee, its officers,employees, agents,representatives,contractors, and/or invitees,Lessee shall immediately notify the CL940006 jcrow 2 renewcl.doc V 2.0 State and undertake all required and appropriate action to remedy the same. Lessee shall be liable for all damages and/or mitigation to the Premises and public lands and waters as a result of such act or omission. G. LESSEE IS EXPRESSLY PLACED ON NOTICE OF THE NATIONAL HISTORICAL PRESERVATION ACT OF 1966, (PB-89-66, 80 STATUTE 915; §470) AND THE ANTIQUITIES CODE OF TEXAS, CHAPTER 191, TEX. NAT.RES. CODE ANN. AND ALL AMENDMENTS THERETO. IN THE EVENT THAT ANY SITE, OBJECT, LOCATION, ARTIFACT OR OTHER FEATURE OF ARCHEOLOGICAL,SCIENTIFIC,EDUCATIONAL,CULTURAL OR HISTORIC INTEREST IS ENCOUNTERED DURING THE ACTIVITIES AUTHORIZED BY THIS AGREEMENT, LESSEE WILL IMMEDIATELY CEASE SUCH ACTIVITIES AND WILL IMMEDIATELY NOTIFY THE STATE'AND THE TEXAS HISTORICAL COMMISSION, P.O. BOX 12276, AUSTIN, TEXAS 78711, SO THAT ADEQUATE MEASURES MAY BE UNDERTAKEN TO PROTECT OR RECOVER SUCH DISCOVERIES OR FINDINGS,AS APPROPRIATE. 5.02. A. Lessee's use of the Premises is subject to compliance with the following covenants, obligations and conditions(the"Special Conditions"): None. B. Prior to undertaking construction or installation of Improvements on the Premises, Lessee shall provide written notice of the terms of this Agreement, including the Special Conditions, to each person or entity authorized by Lessee to perform any such activity on its behalf. Lessee shall retain a copy of each such written notice provided to its agents, representatives, employees, and/or contractors under this provision and, if a dispute arises concerning construction or installation of the Improvements, Lessee shall provide the State with a copy of all applicable notices within ten(10)days of the State's written request. Lessee's failure to maintain and provide each required written notice shall constitute a default under this Agreement. 5.03. If Lessee fails to maintain and/or repair Improvements in good condition and repair, such failure shall constitute a default under this Agreement and the State may, at its option,terminate this Agreement upon written notice to Lessee or pursue a remedy under Section 51.3021, TEX. NAT. RES. CODE ANN. and all amendments thereto. If Lessee construct§improvements other than those authorized in Article V, such improvements shall constitute illegal structures and the State may, at its option, terminate this Agreement or pursue a remedy under Section 51.302, et seq., TEX. NAT.RES. CODE ANN. and all amendments thereto. ARTICLE VI. ASSIGNMENTS AND SUBLEASES 6.01. LESSEE SHALL NOT ASSIGN THIS AGREEMENT OR THE RIGHTS .GRANTED HEREIN, OR SUBLEASE ANY PORTION OF THE PREMISES,IN WHOLE OR PART, TO ANY THIRD PARTY FOR ANY PURPOSE WITHOUT THE PRIOR WRITTEN CONSENT OF THE STATE,WHICH MAY BE GRANTED OR WITHHELD IN THE STATE'S SOLE DISCRETION. ANY UNAUTHORIZED ASSIGNMENT OR SUBLEASE SHALL BE VOID AND OF NO EFFECT,AND SUCH ASSIGNMENT OR SUBLEASE SHALL NOT RELIEVE LESSEE OF LIABILITY UNDER THIS AGREEMENT. ARTICLE VII. INDEMNITY 7.01. TO THE EXTENT ALLOWABLE BY LAW, LESSEE AGREES TO INDEMNIFY AND HOLD THE STATE, ITS SUCCESSORS, ASSIGNS, OFFICERS, AGENTS, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES (THE "INDEMNIFIED PARTIES") HARMLESS FROM AND AGAINST ALL CLAIMS, PROCEEDINGS, ACTIONS, DAMAGES, JUDGMENTS, LIABILITIES, AWARDS AND EXPENSES WHATSOEVER, INCLUDING STRICT LIABILITY CLAIMS (THE "CLAIMS")WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF OR THE NEGLIGENCE OF THE INDEMNIFIED PARTIES; THAT MAY BE BROUGHT, INSTITUTED OR AWARDED ON ACCOUNT OF OR GROWING OUT OF ANY AND ALL INJURIES OR DAMAGES, INCLUDING DEATH, TO PERSONS OR PROPERTY RELATING TO OR RESULTING FROM,DIRECTLY OR INDIRECTLY: (I)ANY OCCURRENCE IN,UPON,AT OR FROM THE PREMISES OR ANY . PART THEREOF,OR(H)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 CL940006 jcrow 3 renewcl.doc V 2.0 THE INDEMNIFIED PARTIES FROM THE CONSEQUENCES OF THE INDEMNIFIED PARTIES'OWN NEGLIGENCE WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE CLAIM. THIS INDEMNITY SHALL HAVE NO APPLICATION TO ANY CLAIM WHERE THE CLAIM RESULTS FROM THE SOLE NEGLIGENCE OF THE STATE. LESSEE'S OBLIGATION OF INDEMNITY SET FORTH HEREIN SHALL SURVIVE EXPIRATION OF THIS AGREEMENT. ARTICLE VIII. DEFAULT,TERMINATION AND EXPIRATION 8.01. If Lessee fails or refuses to remedy a default under this Agreement within thirty(30) days of the State's written notice specifying such default, the State may terminate this Agreement by sending written notice of termination to Lessee in accordance with Article IX. Upon the effective date of such notice, this Agreement shall terminate and neither party shall have any further rights or obligations except for those accruing prior to the effective date of termination and/or those which specifically survive termination of this Agreement. 8.02. Unless waived in writing by the State prior to termination of this Agreement, Lessee shall, within one hundred twenty (120) days from the termination date, remove all personal property, structures and improvements (including, without limitation, the Improvements) from the Premises and restore the Premises (and all other property affected by Lessee's removal activities) to the same condition that existed prior to the placement, construction, or installation thereof on the Premises. Lessee's activities shall be conducted in accordance with General Land Office guidelines in effect at the time of such activity, including, without limitation, specific techniques required for protection of natural resources and mitigation, or payment in lieu of mitigation, for damages resulting from removal activity. Upon such termination Lessee shall notify the State in writing within ten(10)days following completion of Lessee's removal and. restoration activity. Lessee's obligations to perform or undertake any specific activity under this Agreement, including the foregoing removal provision, shall survive termination of this Agreement. ARTICLE IX. NOTICE AND INFORMATION REQUIREMENTS 9.01. A. Any notice given under the terms of this Agreement shall be in writing and either delivered by hand, by facsimile or sent by United States first class mail, adequate postage prepaid, if for the State, to Deputy Commissioner, Asset Inspection, 1700 North Congress Avenue, Austin, Texas 78701-1495, and if for Lessee, to City Of Beaumont, PO Box 3827, Beaumont, TX 77704-3827. Any party's address may be changed from time to time by such party by giving notice as provided above, except that the Premises may not be used by Lessee as the sole notice address. No change of address of either party shall be binding on the other party until notice of such change of address is given as herein provided. B. For purposes of the calculation of various time periods referred to in this Agreement, notice delivered by hand shall be deemed received when delivered to the place for giving notice to a party referred to above. Notice mailed in the manner provided above shall be deemed completed upon the earlier to occur of(i) actual receipt as indicated on the signed return receipt,or(ii)three(3)days after posting as herein provided. 9.02. Lessee shall provide written notice to the State of any change in Lessee address within ten(10)business days of such change. 9.03. Lessee shall provide the State with information reasonably requested in writing within thirty(30) days of such request. ARTICLE X. MISCELLANEOUS PROVISIONS 10.01. Neither acceptance of Consideration or any other sum payable under this Agreement(or any portion thereof)by the State,nor failure by the State to complain of any act or omission of Lessee, shall constitute a waiver by the State of 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. 06 jcrow 4 renewd.doc V 2.0 crow 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 parry 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. IN TESTIMONY WHEREOF,witness my hand and the Seal of Office. LESSOR: LESSEE: THE STATE OF TEXAS City Of Beaumont By: By. 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II II �. � � .r 1,46.E 1-.:uu �� .. � ,� ,I ..,• a ! �.1. i ( �' „. . ... _ 1 _ - l x:11 .r Neches River Jefferson County River Flow Walkway Walkway Walkway Walkway (4 ft.X 49 it.) (4 ft.X 50 ft.) 4 ft. ►i - 4 ft.-J� I e*•-6 ft.HWM- 4 ft. 611. ►t •4 ft. m r? -3 ft.HWM Natural shoreline/ ....30 ft.•••• -.30 tt.-••• m Baldcypresa trees Approximate State Riprap -2.5 ft.HWM T Boundary 4 ft.X 20 ft. i-- a n m (Taxodium disticha) ( Walkwa 5 ft.X 95 ft. Cattails _ Walkway 5 tt X 8911. L-1 °' � z m "� (TYPha sp.) 4 +3 ft.HWM Fill o m 3 z M (13 ft X84 ft) U�° j-0 ft.HWM 4 Fill Wood bullkhead (5 tt.X 95 tt.) +0 ft.HWM Wood bullkhead Walkway (5 ft.X 13 ft.) V Approx.1,000 ft.(not to scale)•-•- Approximate State I Boundary wl C C T a C O. N O CL a) to Collier's Ferry Recreational Area Title: City of Beaumont CL940006 Date of Inspection: 1-21-05 Company: Texas General Land Office Creator: Jeff Davis Scale: 1 in. Equals 40 ft. EXHIBIT C