HomeMy WebLinkAboutPACKET DEC 22 2009 RICH WITH OPPORTUNITY
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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
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TO END EN0 0� The Burlington Northern & Santa Fe Railway Company
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^ EXHIBIT A-RR Signal Sketch
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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
............
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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.
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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.
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(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.
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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]
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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:
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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