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HomeMy WebLinkAboutPACKET APR 19 2011 RICK WITS OTlO=TQAITT BEAUMON* T * Z * X * A * S REGULAR MEETING OF THE CITY COUNCIL COUNCIL CHAMBERS APRIL 19,2011 1:30 P.M. CONSENT AGENDA * Approval of minutes—April 5,2011 and April 12,2011 * Confirmation of committee appointments A. Authorize the City Manager to execute a Lease Agreement with the State of Texas for coastal public lands at Riverfront Park B. Authorize the settlement of the claim of McInnis Construction, Inc. C. Authorize the settlement of the lawsuit styled Beaumont Police Officers Association vs. City of Beaumont Texas, et al, Cause No. A-186,653 D. Authorize the settlement of the lawsuit styled Beaumont Police Officers Association vs. City of Beaumont Texas, et al,Cause No. E-187,102 A RICK WITH OPPORTUNITY r 111CA,11140N]R( T • E • X 0 A s City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Laura Clark, Chief Financial Officer MEETING DATE: April 19, 2011 REQUESTED ACTION: Council consider authorizing the City Manager to execute a Lease Agreement with the State of Texas for coastal public lands at Riverfront Park. RECOMMENDATION Administration recommends authorizing the City Manager to execute the renewal of a lease agreement with The State of Texas General Land office. BACKGROUND The proposed lease agreement is the renewal of an existing lease originally commencing on April 18, 1989. The lease is for the 6,800 square foot public pier and boardwalk constructed in the Neches River during the second phase of Riverfront Park. State law ordains that inland public waterways are owned by the State and requires lease agreements for its use. As consideration for the right to use the premises, the City of Beaumont agrees to pay the State an advance payment of Twenty-Five Dollars ($25.00) as a one-time application fee. No other consideration is required. The proposed lease agreement is unchanged from the prior agreement, except for the term of the new lease. In prior years each renewal term was for five (5) years; the State now wishes to enter into an eleven (11) year lease. The lease was due to renew in April 2009 but was allowed to continue on a month-to-month basis by the State until a new contact person was in place and a new lease could be executed. This was due to the State having personnel and project assignment transitions. If approved, this lease renewal will commence on April 1, 2009 and expire on March 31, 2020. A copy of the proposed new lease in its substantial form is attached. BUDGETARYIMPACT The $25 application fee has been paid from the Parks and Property Services Division's operating budget. 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 lease agreement with the State of Texas General Land Office for coastal public lands at Riverfront Park for a period of eleven (11) years beginning April 1, 2009. The agreement is substantially in the form attached hereto as Exhibit "A." PASSED BY THE CITY COUNCIL of the City of Beaumont this the 19th day of April, 2011. - Mayor Becky Ames - TEXAS GENERAL LAND OFFICE PL,i�"O COASTAL LEASE NO. CL880016 By virtue of the authority granted by Chapter 33 of the Texas Natural Resource Code, Title 31 of the Texas Administrative Code, all amendments thereto, all other applicable statutes, and subject to all rules and regulations promulgated pursuant thereto, the State of Texas (the "Grantor"), acting by and through the Commissioner of the General Land Office(the"GLO") as Chairman of the School Land Board(the"Board)on behalf of the Permanent School Fund (the"PSF"), hereby grants to the grantee(the "Grantee") named under the "Grantee Name" section of Attachment A, the Control Page, the right to use a tract of state-owned real property (the "Premises"), which property is described in the "Premises" section of Attachment A and further depicted in Attachment B, for the purposes described in this agreement (the"Agreement"). ARTICLE I: INTERPRETIVE PROVISIONS (a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined . terms; (b) The words "hereof," "herein," "hereunder," and similar words refer to this Agreement as a whole and not to any particular provision, section, Attachment, or schedule,unless otherwise specified; (c) The term "including" is not limiting and means "including without limitation" and, unless otherwise expressly provided in this Agreement, (i) references to agreements (including this Agreement) and other contractual instruments shall be deemed to include all subsequent amendments and other modifications thereto, but only to the extent that such amendments and other modifications are not prohibited by the terms of this Agreement; and (ii) references to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing, or interpreting the statute or regulation; (d) The captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement; (e) All attachments within this Agreement, including those referenced by incorporation, and any amendments are considered part of the terms of this Agreement; CL880016 CUSTOMER ID:C000000876 cl nevvp.doc v,1,0 1 cbemhar EXHIBIT "A" 4 (f) This Agreement may use several different limitations, regulations,or policies to regulate the saine or similar matters. All such limitations, regulations, and policies are cumulative and each shall be performed in accordance with its terms; (g) Unless otherwise expressly provided, reference to any action of the Grantor or by the Grantor by way of consent, approval, or waiver shall be deemed modified by the phrase "in its/their sole discretion." Notwithstanding the preceding sentence, any approval, consent, or waiver required by, or requested of, the Grantor shall not be unreasonably withheld or delayed; (h) All due dates and/or deadlines referenced in this Agreement that occur on a weekend or holiday shall be considered as if occurring on the next business day; (i) All time periods in this Agreement shall commence on the day after the date on which the applicable event occurred, report is submitted, or request is received; and 0) Time is of the essence in this Agreement. ARTICLE II GRANTING CLAUSE 2.01 GRANTING CLAUSE In consideration of the payments stated in Article IV of this Agreement and other consideration stated therein, the receipt and sufficiency of which are hereby acknowledged, and according to the covenants and commitments herein agreed to be kept and performed by the Grantee, the Grantor grants to the Grantee'the right to use the Premises for the purposes and under the conditions and obligations described in the following section of this Agreement. 2.02 SCOPE OF GRANTING CLAUSE The Grantee's use of the Premises is subject to compliance with the following covenants, obligations, and conditions: (a) Use The Premises may be used by the Grantee solely for those uses specified under the"Use(s) of Premises" section of Attachment A and for no other purpose. Except as otherwise provided in this Agreement, the Premises are to remain in their current topographical and hydrologic condition during the term of the Agreement. The Grantee is specifically prohibited from modifying the Premises in any manner not authorized in this Agreement and from using, or allowing the use by others, of the Premises for any other purpose. (b) Trash The Grantee shall be responsible for the removal and disposal of all trash at the Premises, whether or not such trash is generated by the Grantee or its guests and invitees. CL880016 CUSTOMER ID:C000000876 el newp.doc v.1.0 2 cbemhar (c) Improvements i) The Grantee's right to use the Premises is exclusive as to those alterations, additions, and/or improvements located, or to be-located, on the Premises (collectively the "Improvements"), as more specifically described under the "Use(s) of Premises" section of Attachment A and further depicted on Attachment B, and non-exclusive as to the remainder. The location of the Improvements shall become fixed as specified under Attachment B and shall not be changed except by a written amendment to this Agreement. Improvements existing prior to the execution of this Agreement are and shall remain the property of the Grantor; ii) Except as otherwise allowed in this Agreement, no construction, land modifications or excavation, or permanent property improvements may be allowed or undertaken without the Grantor's prior express written consent. The Grantee may not maintain or allow any nuisances or public hazards on the Premises, and shall be under a duty to abate or remove any activity or property constituting or contributing to a hazard or nuisance. The Grantee may file a criminal complaint or institute civil proceedings to protect his right of possession and leasehold interest in the Premises against trespass of other infringement of the Grantee's rights by third parties. The Grantee is specifically prohibited from using or allowing the use by others of the Premises for any purpose not stated herein, including, but not limited to, mining, hauling, or otherwise removing rock, sand, gravel, aggregate,or other such materials, without the Grantor's prior express written approval; iii) Prior to undertaking construction or installation of Improvements on the Premises,the Grantee shall provide written notice of the terms of this Agreement to each person or entity authorized by the Grantee to perform any such activity on its behalf. If a dispute arises concerning construction or installation of the Improvements, the Grantee shall provide the Grantor with a copy of all applicable notices within ten (10) days of the Grantor's written request; iv) The Grantee, in its sole cost and expense, shall make, and be solely responsible for, any repairs, maintenance, or replacements to the Improvements that the Grantor considers necessary or as required by this Agreement. If the Grantee fails or refuses to honor such a request, or in case of an emergency, the Grantor may snake such repairs, maintenance, renewals, or replacements. THE GRANTEE WAIVES ANY CLAIM FOR DAMAGE CAUSED THEREBY AND IS LIABLE TO THE GRANTOR FOR ANY COSTS INCURRED; V) Prior to expiration of this Agreement or upon notice of termination, the Grantee shall remove all of the Improvements, remove any resulting debris, and pay Grantor all monies due. The grantee shall take whatever measures are necessary to restore the area involved as nearly as practicable to the same condition that existed prior to placement of any Improvements. If the Grantee fails to comply with this provision, the Grantor shall have the right to perform the work, in which event the Grantee shall be liable to the Grantor for all cost, loss, and damage incurred by the Grantor; vi) Notwithstanding the preceding, pursuant to Title 31 of the Texas Administrative Code, the Grantor may waive the removal/restoration requirements in this Section if, CL.880016 CUSTOMER ID:C000000876 cl newp.doc v.1.0 3 cbernhar L in the Grantor's sole opinion and discretion, such waiver is in the best interest of the State. Any such waiver shall be in writing and may be conditioned upon factors including the nature and sensitivity of the natural resources in the area, potential damage to or destruction of property, beneficial uses of the existing improvement(s), and other factors considered to be in the best interest-of the State; and vii) Grantee shall insure that all Improvements constructed, placed, or operated by it on the Premises are visible to operators of marine craft at all times. Grantee shall further take any and all steps necessary to insure that Improvements constructed, placed, or operated by it on the Premises do not constitute a hazard to operators of marine craft. Grantee may not restrict or prevent other persons from access to navigating open, navigable waters. (d) Special conditions The Grantee shall adhere to the special conditions, if any, listed under the "Special Conditions"section of Attachment A. 2.03 AS IS THE GRANTEE HAS INSPECTED THE PHYSICAL AND TOPOGRAPHIC CONDITION OF THE PREMISES AND ACCEPTS THE SAME "AS IS," IN ITS EXISTING PHYSICAL AND TOPOGRAPHIC CONDITION. THE GRANTEE ACKNOWLEDGES THAT IT IS NOT RELYING ON ANY REPRESENTATION, STATEMENT, OR OTHER ASSERTION OF THE GRANTOR WITH RESPECT TO THE CONDITION OF THE PREMISES,BUT IS RELYING ON THE GRANTEE'S OWN INSPECTION OF THE PREMISES. THE GRANTOR DISCLAIMS ANY AND ALL WARRANTIES OF HABITABILITY, MERCHANTABILITY, SUITABILITY, FITNESS FOR ANY PURPOSE, AND ANY OTHER EXPRESS OR IMPLIED WARRANTY NOT EXPRESSLY SETFORTH IN THIS AGREEMENT. THE USE OF THE TERM "GRANT" IN NO WAY IMPLIES THAT THIS AGREEMENT IS FREE OF LIENS, ENCUMBRANCES, AND/OR PRIOR RIGHTS. THE GRANTEE IS PUT ON NOTICE THAT OTHER GRANT AND/OR ENCUMBRANCE MAY BE OF RECORD, AND THE GRANTEE IS ADVISED TO EXAMINE THE RECORDS IN THE ARCHIVES AND RECORDS DIVISION OF THE GLO AND RECORDS OF THE COUNTY IN WHICH THE PREMISES ARE LOCATED. 2.04 RESERVATIONS The Grantor reserves the full use of the Premises and all rights with respect to its surface and subsurface for any and all purposes except for those granted to the Grantee. The aforementioned reserved full use of the Premises by the Grantor includes the right of ingress, egress, and use of the Premises by the Grantor, its officers, agents, representatives, employees, and other authorized users for any authorized purpose. 2.05 RIGHT OF ENTRY (a) In any circumstances where the Grantor is granted a right of entry on the Premises during the term of the Agreement, no such entry shall constitute an eviction or disturbance of the Grantee's use and possession of the Premises, a breach by the Grantor of any of its obligations hereunder, render the Grantor liable for damages for loss of business or otherwise, entitle the Grantee to be relieved from any of its obligations hereunder, grant the Grantee any right of off-set or recoupment, or other remedy. CL880016 CUSTOMER ID:C000000876 cl newp.doc v.1.0 4 cbemhar (b) In exercising any right of entry, the Grantor agrees to exercise its right of entry only at reasonable times (except in an emergency) for purposes of inspection, repair, and as necessary to protect the State's interests, and the Grantor agrees not to unreasonably interfere with the Grantee's authorized use of the Premises. The Grantee shall provide the Grantor with keys or combinations to all locks that may limit access to the Premises. (c) Further, the Grantee authorizes the State, its officers, agents, representatives, and employees to access the Premises over and across Grantee's Adjacent Property. Grantor agrees to use the Adjacent Property only to the extent and for the length of time necessary to provide access to and from the Premises. The foregoing authorization creates a license only, and does not create an easement over the Adjacent Property. (d) Grantee acknowledges that Grantor's right of ingress and egress shall remain in effect as long as any improvements placed on the Premises by Grantee remain on the Premises and/or as necessary for Grantor to confirm the removal (in whole or in part)of those improvements. (e) Any aforementioned right of entry shall survive the termination of this Contract. 2.06 DAMAGE OR DESTRUCTION OF PREMISES AND/OR IMPROVEMENTS No damage to the Premises, or damage to or destruction of any Improvements, shall in any way alter, affect, or modify the Grantee's obligations under this Agreement. In the event any such damage or destruction exceeds the cost listed under the "Cost of Damage" section of Attachment A per event to repair, the Grantee shall give written notice to Grantor within seven(7) calendar days of the damage or destruction, including a description of the damage or destruction and, as far as known to the Grantee, the cause of the damage or destruction. The Grantee shall immediately remove all debris resulting from such damage or destruction and take such action as is necessary to place the Premises in a neat, safe condition. Within 90 days of the event causing the damage or destruction, the Grantee must either repair or replace the Improvements, if permitted by law, or return the Premises to their natural condition. The Grantor may make repairs or replacements pursuant to this section, whereupon the Grantee shall be liable to pay the Grantor, upon demand, the cost and expense incurred in accomplishing such action. -Any failure by the Grantee to make such payment to the Grantor may be treated by the Grantor as an Event of Default. ARTICLE III: TERM The effective date and termination date of this Agreement are specified under the "Effective and Termination Dates" section of Attachment A, unless renewed or earlier tenninated as provided herein. Unless otherwise specified herein, renewal of this Agreement is at the sole discretion of the Grantor. ARTICLE IV: CONSIDERATION The Grantee shall pay, in consideration of the mutual covenants and agreements set forth in this Agreement, the payment(s) and/or fee(s) listed under the "Payment(s) and/or Fee(s)" section of Attachment A on or before the due date. CLS80016 CUSTOMER ID:C000000876 cl newp.doc v.1.0 5 cbernhar ARTICLE V:EVENTS OF DEFAULT 5.01 EVENTS OF DEFAULT With respect to the Grantee,it shall be an event of default hereunder ("Event of Default")if (a) the Grantee fails or refuses to timely pay Consideration or any other payments required by this Agreement after it becomes due; (b) the Grantee fails or refuses to comply, timely perform, or observe any of the covenants, duties, obligations, and/or conditions under this Agreement; (c) the Grantee abandons or vacates the Improvements, the Premises, or any significant portion thereof; (d) there is an entry of a court order requiring the dissolution, winding up, or termination of the Grantee's business affairs; or (e) the Grantee fails to materially comply with rules and regulations in the Texas Administrative Code, the Texas Natural Resources Code, or any other rules or regulations promulgated by any state or federal governmental entity with proper jurisdiction over any of the uses permitted under this Agreement, unless such a failure to comply is redressed through an enforcement action by an applicable state agency with proper jurisdiction. 5.02 NOTICE AND CURE There shall be no consequences for an Event of Default under this Agreement, unless the defaulting party receives written notice of the Event of Default and such Event of Default continues for a period of 30 days after the defaulting party receives the notice. A notice of Event of Default shall specify the event or events constituting the default. This 30 day period shall be extended if the act, event, or condition is one that by its nature or circumstances reasonably requires more than 30 days to cure; provided, however, the defaulting party shall promptly and in good faith initiate and diligently pursue measures that are expected to cure or eliminate the Event of Default in a reasonable period of time. If either party fails to cure an Event of Default, the non-defaulting party shall be entitled to terminate this Agreement by written notice. This notice and cure provision does not apply to an Event of Default under provision 5.01(a) or any emergency situations that affect public health or safety. 5.03 CUMULATIVE RIGHTS AND REMEDIES;NO WAIVER If an Event of Default occurs and the Grantee fails to cure within the period provided above, the Grantor may, at its option, do any one or more of the following: (a) tenminate this Agreement by sending written notice of such termination, in which event the Grantee shall immediately surrender possession of the Premises to the Grantor (such termination shall not prejudice the rights of the Grantor for any claim of payments due); (b) enter upon and take possession of the Premises and expel or remove the Grantee and any other occupant,with or without having terminated the Agreement; or CLS80016 CUSTOMER ID:C000000876 cl newp.doc v.1.0 6 cbemhar (c) alter locks and other security devices, if any,at the Premises. The failure of either the Grantee or the Grantor to insist at any time upon the strict observance or performance of any of the provisions of this Agreement or to exercise any right or remedy as provided in this Agreement shall not impair any other right or remedy or be construed as a waiver or relinquishment thereof with respect to subsequent defaults. Every right and remedy given by this Agreement to the Grantee or the Grantor may be exercised from time-to-time and as often as may be deemed expedient by the Grantee or the Grantor, as the case may be. In an Event of Default, the Grantor shall have the option,but not the obligation,to mitigate its damages. ARTICLE VI: GENMAL T]ERNIS, CONDITIONS,AND EXCEPTIONS 6.01 AssIGNMENT The Grantee shall not assign or otherwise dispose of an interest in this Agreement or the Premises without the express prior written consent of the Grantor; and any attempt to assign or otherwise dispose without consent shall be void and of no effect. This prohibition against assigning or disposition ,shall be construed to include a prohibition against any assignment or disposition by operation of law. If this Agreement is assigned.,or if an interest in this Agreement or the Premises is disposed of, the Grantor may nevertheless collect Consideration from the assignee and apply the net amount collected to the Consideration payable hereunder, No such transaction or collection of Consideration shall release the Grantee from the. further performance of its covenants, duties, and obligations. 6.02 INDEMNITY EXCFPT FOR DAMAGES DIRECTLY OR PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OF THE GRANTOR, TO THE EXTENT ALLOWED BY LAW, THE GRANTEE SMALL INDEMNIFY AND HOLD HARMLESS THE GRANTOR? AND THE GRANTOR'S OFFICERS; REPRESENTATIVES, :AGENTS, AND EMPLOYEES FROM ANY LOSSES,, CLAIMS, SUITS, ACTIONS, DAMAGES} OR L,IABHJTY (INCLUDING ALL COSTS AND EXPENSES OF DEFENDING AGAINST ALL OF THE AFOREMENTIONED) ARISING IN CONNECTION WITI3: • THIS AGREEMENT; • THE USE OR OCCUPANCY OF THE PREMISES;: ' ANY NEGLIGENCE, ACT,, OMISSION, NEGLECT, OR MISCONDUCT OCCURRING IN, ON, OR ABOUT THE PREMISES;OR • ANY CLAIMS Olt AMOUNTS ARISING OR RECOVERABLE UNDER FEDERAL OR STATE WORKERS' COMPENSATION LAWS, THE TEXAS TORT CLAIMS ACT, OR ANY OTHER SUCH LAWS. THE GRANTEE ASSUMES RESPONSIBILITY FOR THE CONDITION OF THE PREMISES. THY.GRANTEE EXPRESSLY AGREES TO USE AND OCCUPY THE PREMISES AND PLACE ANY IMPROVEMENTS ON THE PREMISES AT ITS OWN RISK. THE GRANTEE SHALL BE RESPONSIBLE FOR TIIE SAFETY AND WELL BEING OF ITS EMPLOYEES, CUSTOMERS, AND INVITEES. THESE REQUIREMENTS SHALL SURVIVE THE TERM OF THIS AGREEMENT UNTIL ALL CLAIMS HAVE BEEN SETTLED OR RESOLVED AND SUITABLE EVIDENCE TO THAT EFFECT HAS BEEN FURNISHED TO THE GRANTOR. CLU0016 CUSTOMER ID:C00000876 cl newp.doc Y.1.0 7 chemhar 6.03 PROTECTION OF NATURAL AND HISTORICAL RESOURCES (a) Unauthorized Discharge The Grantee shall use the highest degree of care and all appropriate safeguards to prevent pollution of air, ground, or water in, on, or about the Premises through an unauthorized discharge, and to protect and preserve natural resources and wildlife habitat. In the event of such discharge or damage to natural resources in, on, or about the Premises that is the result of an act or omission of the Grantee, its officers, employees, agents, representatives, contractors, and/or invitees, the Grantee shall immediately notify appropriate agencies of the State of Texas and the Grantor and undertake all required and appropriate action to remedy the same. The Grantee shall be liable for all damages to the Premises, public lands, and waters as a result of such act or omission and for mitigation of any such damages. (b) Natural Historical Preservation Act and Antiquities Code of Texas THE GRANTEE IS EXPRESSLY PLACED ON NOTICE OF THE NATIONAL HISTORICAL PRESERVATION ACT OF 1966 AND THE ANTIQUITIES CODE OF TEXAS. IN THE EVENT THAT ANY SITE, OBJECT, LOCATION, ARTIFACT, OR OTHER FEATURE OF ARCHEOLOGICAL, SCIENTIFIC, EDUCATIONAL, CULTURAL, OR HISTORIC INTEREST IS ENCOUNTERED DURING THE ACTIVITIES AUTHORIZED BY THIS AGREEMENT, THE GRANTEE.SHALL IMMEDIATELY CEASE SUCH ACTIVITIES AND SHALL IMMEDIATELY NOTIFY THE GRANTOR AND THE TEXAS HISTORICAL COMMISSION, SO-THAT ADEQUATE MEASURES MAY BE UNDERTAKEN TO PROTECT OR RECOVER SUCH DISCOVERIES OR FINDINGS,AS APPROPRIATE. 6.04 'COMPLIANCE WITH OTHER LAWS; NUISANCE The Grantee, at its own expense, will comply with all federal, state, municipal, and other laws, codes, ordinances, rules, and regulations applicable to the Premises; and will install, remove, and alter such equipment-.,and facilities in, and make such alterations to, the Premises as may be necessary to comply. The Grantee will not make any unlawful use of the Premises or permit any unlawful use thereof; and will not commit, or permit anyone else to commit, any act that is a nuisance or annoyance to the Grantor or adjacent property owners or tenants, or which might, in the exclusive judgment of the Grantor, damage the Grantor's goodwill or reputation, or tend to injure or depreciate the value of the Premises and/or any Improvements located thereon. The obligations of the Grantee under this Section shall survive any termination of this Agreement. 6.05 NOTICE (a) The Grantee shall provide written notice to the Grantor of any change in the Grantee's name, address, corporate structure, legal status or any other information relevant to this Agreement. The Grantee shall provide to the Grantor any other information reasonably requested by the Grantor in writing within 30 days following such request. (b) Any payments and required written notices under this Agreement shall be delivered by hand, facsimile, or United States Registered or Certified Mail, adequate postage prepaid, to the address(es) listed under the "Address(es) for Notification" section of Attachment A. A party may change its address by giving notice as provided above. No change of address shall be binding until notice of such change of address is given as required. CL880016 CUSTOMER ID:C000000876 cl newp.doc v.1.0 8 cbernhar 6.06 SEVERABIIATY If any provision contained in this Agreement is held to be unenforceable by a court of law or equity, this Agreement shall be construed as if such provision did not exist and the non-enforceability of such provision shall not be held to render any other provision or provisions of this Agreement unenforceable. 6.07 ENTIRE AGREEMENT This Agreement and its.attachments constitute the entire agreement of the parties and such are intended as a complete and exclusive statement of the promises, representations, negotiations, discussions, and other agreements that may have been made in connection with the subject matter hereof. Unless an attachment to this Agreement specifically displays a mutual intent to amend a particular part of this Agreement,general conflicts in language between any such attachment and this Agreement shall be construed consistently with the tennis of this Agreement. Unless otherwise expressly authorized. by the teens of this Agreement, no modification, renewal, extension, or amendment to this Agreement shall be binding upon the parties unless the same is in writing and signed by the respective parties hereto:. 6.08 TAxEs The Grantee shall, as further consideration for this .Agreement, pay and diseh'arge all "Taxes" (as Hereinafter defined) properly assessed in any calendar year (or portion thereof) during the terra of this Agreement. For the proposes of this Agree neat, the term"T"axes"means all taxes,assessments, impositions, levies, charges, excises, fees, licenses,, and 'other sums (whether rio k existing or' hereafter arising, whether foreseen or unforeseen, and whether under the present system of taxation or some other system), that during the tom of this Agreement may be levied., assessed, charged, or imposed by any governmental authority or other taxing authority or acciue on the,Premises and any Improvements or other property thereon, whether belonging to the Grantor or the 'Grantee, or to which either of them may become liable in relation thereto. `ibe:term"Taxes" shatI also include all penalties; interest, and other charges payable by reason of any delay or failure or refusal lof the Grantee to make timely payments as required pursuant to this provision. TO THE EXTENT AI,LOMIED ICY LAW,THE GRANTEE AGREES TO AND SHALL INDEMNIFY AND HOW THE GRANTOR HARMLESS FROM LIABILITY FOR ANY AND ALL TAXES; TOCF.TIIER WITH ANY INTEREST, PENALTIES, OR OTIER, SUMS IMPOSED, AND FROM ANY SALE OR OTHER PROCEEDING TO ENFORCE''PAYMENT THEREOF. 6.09 ENCUMBRANCE OF INTEREST The Grantee may not mortgage, hypothecate, encumber, or grant any deed of trust or security interest that encumbers the Premises. Further, the Grantee may not collaterally assign any r(Mt or other income generated from the Premises. Prior to expiration or termination of this Agreement, the Grantee will provide the Grantor with documentation sufficient to evidence the Grantor's ownership of the Improvements not required to be removed per Article II. 6.10 PROPER ALITHORITY Each party hereto represents and warrants that the person executing this Agreement on its behalf has full power and authority to enter into this Agreement. CI.8800.16 CUSTOMER In:0000000876 cl newp.doc v.1.0 9 cbcrnhar 6.11 RELATIONSHIP OF THE PARTIES Nothing contained in this Contract shall be deemed or construed to create a partnership or joint venture, to create relationships of an employer-employee or principal-agent, or to otherwise create for the Grantor any liability whatsoever with respect to the indebtedness, liabilities, and obligations of the Grantee or any other party. 6.12 GRANTEE'S WAIVER OF CERTAIN RIGHTS AND ASSERTIONS The Grantee waives and relinquishes all rights that the Grantee might have to claim any nature of lien against the Grantor and the Premises, or withhold or deduct from or offset against any Consideration or other sums provided hereunder. to be paid to the Grantor by the Grantee. The Grantee waives and relinquishes any right, either as a claim or as a defense, that the Grantor is bound to perform or is liable for the nonperformance of any implied covenant or implied duty of the Grantor not expressly set forth in this Agreement. IN TESTIMONY WHEREOF,witness xny hand and the Seal of Office. GRANTOR: THE STATE OF TEXAS By: APPROVED: JERRY E. PATTERSON Contents: Commissioner,General Land Office Legal: Chairman, School Land Board Deputy: Date: Executive: CL880016 CUSTOMER ID:C000000876 cl newp.doc v.1.0 10 cbernhar GRANTEE: City Of Beaumont By: (Signature) (Printed Name) (Title) Date: ACKNOWLEDGMENT STATE OF § COUNTY OF § This instrument was acknowledged before me on the day of , 20 ,by . (Grantee or Agent Representative). (Notary Signature) Notary Stamp Notary Public, State of My commission expires: INFORMATION COLLECTED BY ELECTRONIC MAIL AND BY WEB FORM IS SUBJECT TO THE PUBLIC INFORMA TIONA CT, CHAPTER 552, GOVERNMENT CODE. CLS80016 CUSTOMER ID:C000000876 ATTACHMENT A: CONTROL PAGE GRANTEE'S NAME City Of Beaumont PREMISES A portion of the Neches River, Jefferson County, Texas (the "Premises"). The Premises are further described and depicted on Attachment B attached hereto and incorporated herein by reference. USE(S)OF PREMISES Authorized Use(s) of the Premises: A public wood piling pier consisting of 6' x 65' and 6' X 10' walkways, 12' X 380' boardwalk, a 237 square foot triangular deck, and a 6' X 8' stairway comprising a total encumbrance of 5,295 square feet; and 8'X 260' and 8' X 590' areas of no-fee ripap encumbering an additional 6,800 square feet, for a total project encumbrance of 12,095 square feet of coastal public land. SPECIAL CONDITIONS 1. Grantee is specifically prohibited from using or permitting the use of the Premises for any commercial or illegal purpose. Provided the Grantor does not unreasonably interfere with Grantee's use of the Premises, the Grantor may use or permit the use of the Premises for any purpose consistent with Grantee's use of the Premises. 2. Grantee must notify the General Land Office, in writing, at least thirty (30) days prior to modification, rebuilding, major repair, or removal of any structure authorized in this instrument. 3. Rip-rap shall consist of approved material such as concrete block,interlocking brick, sack crete, rock large enough not to be displaced by storms, or concrete rubble which is free of protruding rebar. The use of tires, automobile bodies or parts, appliances, trash, debris, asphalt, tree limbs, and other unconsolidated material is not acceptable and shall not be used. COST OF DAMAGE Five Thousand and No/100 Dollars ($5,000) per event. EFFECTIVE AND TERMINATION DATES This Agreement is for a total period of eleven (11) years, effective on April 1, 2009, and terminating on March 31, 2020. PAYMENT(S)AND/OR FEE(S) Grantee and Grantor acknowledge that no rental fees shall be assessed for the described use of the premises, while Grantee is not in default of the terms agreed upon herein. Grantor further acknowledges the receipt of the appropriate contract application and processing fees. CL880016 ADDRESSES)FOR NOTIFICATION Grantor's Contact Information Name: Texas General Land Office Title: Deputy Commissioner, Professional Services Address: 1700 N. Congress Ave. Address: Austin, Texas 78701-1495 Grantee's Contact Information Name: City Of Beaumont Address: PO Box 3827 Address: Beaumont, TX 77704-3827 i CL.880016 ATTACHMENT B: CL880016 Neches River Jefferson County River Flow Stairway Concrete steps/ (6 ft.X 8 ft.) Boardwalk Approximate State (12 ft.X 380 ft.) Riprap y Boundary Riprap ■, (8 ft.X 590 ft.) z -8 ft-HWM (8 ft.X 260 ft.) o� -1.5 IL HWM yip, -2 ft.HWM •4 ft.HWM +1 f, HWM I Triangular deck +3.5 ft.HWM t (237 ft.) Walkway 14210 ft.(not to scald)✓ t (6 ft.X 10+ Walkway r Natural shoreline/ (6 ft.X65tt.) +4 ft.HWM """""'"""""""""""""494ft.(not toscale)----••--•-•--••••-•-•••••••-•••••- Naturalsh.relinel of Approximate State 1 Approximate State a`I Boundary Concrete bulkhead/ Boundary Approximate State LEGAL DESCRIPTION Boundary A 4.154 acre portion of Track 2,and a 1.125 acre portion of Tract 3,out of the Noah Tevis Survey,Abstract 52,Jefferson County Records Title: City of Beaumont CL880016 Date of Inspection: 04/26/2010 Company: Texas General Land Office Inspector: Erin Piper Scale: 1 in. Equals 80 ft. r ATTACHMENT B B 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 Attornoyl---k MEETING DATE: April 19, 2011 REQUESTED ACTION: Council consider a resolution authorizing the settlement of the claim of McInnis Construction, Inc. RECOMMENDATION Council approval of a resolution authorizing the settlement of the claim of McInnis Construction, Inc.. BACKGROUND Council discussed the settlement of this claim in Executive Session on April 5, 2011. BUDGETARYIMPACT There are sufficient funds in the General Fund to pay the settlement amount. RESOLUTION NO. WHEREAS, the claim of McInnis Construction, Inc. has been discussed in an Executive Session properly called and held Tuesday, April 5, 2011; and, WHEREAS, the Council desires to authorize the settlement of the claim; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Attorney be and he is hereby authorized to settle the claim of Mcinnis Construction, Inc. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 19th day of April, 2011. - Mayor Becky Ames - c RICH WITH OPPORTUNITY r C . 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: April 19, 2011 REQUESTED ACTION: Consider a resolution authorizing the settlement of the lawsuit styled Beaumont Police Officers Association vs. City of Beaumont Texas, et al, Cause No. A-186,653. RECOMMENDATION Administration recommends approval of a resolution authorizing the settlement of a lawsuit styled Beaumont Police Officers Association vs. City of Beaumont, Texas, et al, Cause No. A- 186,653 in the amount of$13.00. BACKGROUND This matter was most recently presented and discussed in Executive Session held on April 12, 2011. The City Attorney is requesting authority to settle this suit. BUDGETARY IMPACT There are sufficient funds in the General Fund to pay the settlement amount. RESOLUTION NO. WHEREAS, the lawsuit styled Beaumont Police Officers Association vs. City of Beaumont. Texas, et al, Cause No. A-186,653 was discussed in Executive Session properly called and held Tuesday, April 12, 2011; and, WHEREAS, the Council desires to authorize the settlement of the lawsuit styled Beaumont Police Officers Association vs. City of Beaumont. Texas, et al, Cause No. A- 186,653. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the statements and findings set out in the preamble to this resolution are hereby, in all things, approved and adopted; and, THAT the City Attorney be, and he is hereby, authorized to settle the lawsuit styled Beaumont Police Officers Association v. City of Beaumont. Texas, et al, Cause No. A- 186,653 in the amount of Thirteen Dollars ($13.00). PASSED BY THE CITY COUNCIL of the City of Beaumont this the 19th day of April, 2011. - 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 Attorne MEETING DATE: April 19, 2011 REQUESTED ACTION: Consider a resolution authorizing the settlement of the lawsuit styled Beaumont Police Officers Association vs. City of Beaumont Texas, et al, Cause No. E-187,102. RECOMMENDATION Administration recommends approval of a resolution authorizing the settlement of a lawsuit styled Beaumont Police Officers Association vs. City of Beaumont, Texas, et al, Cause No. E- 187,102. BACKGROUND This matter was most recently presented and discussed in Executive Session held on April 12, 2011. The City Attorney is requesting authority to settle this suit. BUDGETARYIMPACT There are sufficient funds in the General Fund to pay the settlement amount. RESOLUTION NO.11-029 WHEREAS, the lawsuit styled Beaumont Police Officers Association vs. City of Beaumont, Texas, et al, Cause No. E-187,102 was discussed in Executive Session properly called and held Tuesday, April 12, 2011; and, WHEREAS, the Council desires to authorize the settlement of the lawsuit styled Beaumont Police Officers Association vs. City of Beaumont. Texas, et al, Cause No. E- 187,102; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the statements and findings set out in the preamble to this resolution are hereby, in all things, approved and adopted; and, THAT the City Attorney be, and he is hereby, authorized to settle the lawsuit styled Beaumont Police Officers Association v. City of Beaumont. Texas, et al, Cause No. E- 187,102. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 19th day of April, 2011. - Mayor Becky Ames - RIGS WITH OPPORTUNITY BEAUMON* REGULAR MEETING OF THE CITY COUNCIL COUNCIL CHAMBERS APRIL 19,2011 1:30 P.M. AGENDA CALL TO ORDER * Invocation Pledge Roll Call * Presentations and Recognition * Public Comment: Persons may speak on scheduled agenda items 1-3/Consent Agenda * Consent Agenda GENERAL BUSINESS 1. Consider a request for the disannexation of a 436.81 acre tract of land located at 6275 Highway 347 2. Consider authorizing the City Manager to execute an Industrial District Contract with Oiltanking Beaumont Partners, LP 3. Consider approving a resolution designating a portion of Calder Avenue as the Calder Historic Antiques District 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: City of Beaumont v. Howard Johnson Express, IMH, LLC Starvin Marvin Bar and Grill LLC vs. City of Beaumont, et al, Cause No. E-189,628 Persons with disabilities who plan to attend this meeting and who may need auxiliary aids or services are requested to contact Mitchell Normand at 880-3777 three days prior to the meeting. 1 April 19,2011 Consider a request for the disannexation of a 436.81 acre tract of land located at 6275 Highland 347 RICH WITH OPPORTUNITY BEA,IIMON* T • E • X • A • s City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Chris Boone, Community Development Director MEETING DATE: April 19, 2011 REQUESTED ACTION: Council consider a request for the disannexation of a 436.81 acre tract of land located at 6275 Highway 347. RECOMMENDATION The Administration recommends approval of the disannexation of a 436.81 acre tract of land located at 6275 Highway 347. BACKGROUND Oiltanking Beaumont, L.P. has requested the disannexation. The subject property was part of 2,600±acres annexed into the City in 1988. In 2001,Oiltanking Beaumont Partners,L.P.purchased approximately 1,400 acres of land and improvements consisting of docks,tanks, and related pipelines from BP/Amoco. Oiltanking Beaumont has added in excess of$100 million of investment since its purchase. In 2009, Oiltanking Beaumont paid approximately $570,000 in property taxes based on$89 million of property value to the City of Beaumont. Oiltanking Beaumont is a bulk liquid storage terminal that stores and transports hydrocarbon liquids and chemicals. Most of Oiltanking Beaumont's customers are the various refining and chemical companies located within Southeast Texas. Most terminals like Oiltanking Beaumont's are located within industrial districts. They have industrial district contracts with the respective cities and make payments in lieu of taxation and annexation. Oiltanking Beaumont would like to have a similar structure for its Beaumont facilities so it can compete with terminals in other cities' industrial districts. At Joint Public Hearings held March 21 and March 28, 2011,the Planning Commission voted 6:0 to approve disannexation of a 436.81 acre tract of land located at 6275 Highway 347. BUDGETARYIMPACT In lieu of property taxes, Oiltanking Beaumont, L. P. will enter into an industrial district contract with the City of Beaumont. ORDINANCE NO. ENTITLED AN ORDINANCE DISANNEXING A 436.81 ACRE TRACT OF LAND OUT OF THE PHELAM HUMPHRY LEAGUE,ABSTRACT 32, LOCATED AT 6275 HIGHWAY 347 FROM THE CORPORATE LIMITS OF THE CITY OF BEAUMONT, TEXAS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR REPEAL. WHEREAS, in 1988, the subject property was part of 2,600 t acres annexed into the City; and, WHEREAS, in 2001, Oiltanking Beaumont Partners, L.P. purchased approximately 1,400 acres of land and improvements consisting of docks, tanks and related pipelines from BP/Amoco; and, WHEREAS, Oiltanking Beaumont Partners, L.P. has requested a disannexation of 436.81 acres of land that it owns in southeast Beaumont; and, WHEREAS, at a Joint Public Hearing held March 21, 2011 and March 28, 2011,the Planning Commission unanimously voted to approve disannexation of a 436.81 acre tract of land out of the Phelam Humphry League, Abstract 32, as described in Exhibit "A" and shown on Exhibit"B," attached hereto and made a part hereof for all purposes, located at Highway 347 within the corporate limits of the City of Beaumont; and, WHEREAS, the City Council of the City of Beaumont finds that the subject of this ordinance is within their power as authorized by Article I, Section 4, of the Charter, that steps necessary to the disannexation have been satisfied, and deems it to be in the best interest of the health, safety and welfare of the citizens of the City of Beaumont to disannex the requested property from the corporate limits of the City of Beaumont; NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF BEAUMONT: Section 1. That a 436.81 acre tract of land out of the Phelam Humphry League, Abstract 32, as described in Exhibit "A" and shown on Exhibit "B," attached hereto and made a part hereof for all purposes, located at 6275 Highway 347 within the corporate limits of the City of Beaumont be and they are hereby declared disannexed from the boundaries of the City of Beaumont, Texas, and it is no longer a part of the City of Beaumont, Texas. Section 2. 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 3. That all ordinances or parts of ordinances in conflict herewith are repealed to the extent of the conflict only. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 19th day of April, 2011. - Mayor Becky Ames - LEGAL DESCRIPTION FOR ORDINANCE PURPOSES BEING a 436.81 acre tract of land situated in the Phelam Humphry League,Abstract No. 32,Jefferson County,Texas and being more particularly described as follows: CONDAENCING at the intersection of the East right-of-way line of the K.C.S. Railroad and the South line of the Texas Gulf Sulphur tract and the North line of the Amoco 465 acre tract; THENCE Northeasterly along and with the South line of said Texas Gulf Sulphur tract and the North line of the Amoco 465 acre tract to an angle point in said line; THENCE Easterly along and with the South line of said Texas Gulf Sulphur tract and the North line of the Amoco 465 acre tract to the POINT OF BEGINNING of the tract herein described, said point being the most Northeasterly corner of that certain called 24.6091 acre tract as conveyed to TX Energy, LLC as recorded in Clerk's File No. 2009022171,Official Public Records of Real Property,Jefferson County, Texas, said 24.6091 acre tract being out of the Amoco 465 acre tract; THENCE Easterly continuing along and with the South line of said Texas Gulf Sulphur tract and the North line of the Amoco 465 acre tract to the point of intersection with the Neches River bank; THENCE Southerly along the meanders of the West bank of the Neches River to a point of intersection with the Northwesterly line of the DuPont Canal and the Southerly line of the said Amoco 465 acre tract; THENCE along and with the South line of said Amoco 465 acre tract in a Southwesterly and Northwesterly direction, to the most Northerly South corner of said 465 acre tract and the Southeast corner of a Texas Gulf Sulphur 31.65 acre tract; THENCE Northwesterly along the Northeasterly line of the said Texas Gulf Sulphur 31.65 acre tract and the Southwesterly line of the said Amoco 465 acre tract to the most Southerly corner of the said 24.6091 acre TX Energy,LLC tract; THENCE NORTHEASTERLY along and with the Southeasterly line of the said 24.6091 acre TX Energy, LLC tract to the PLACE OF BEGINNING and containing 436.81 acres, more or less. EXHIBIT "A" L lit T1TflT1Tfl1MTflT�r/ j�jT sd� �, °- 1% loll w '��,• �gpi r 6�� 6 t 6 - jigs ' �\ K4 r R e t � � 3 t = t lilt = lit I lagx t t � t h t ,tea �o♦ K� 9 a' ! g � 9 2 April 19,2011 Consider authorizing the City Manager to execute an Industrial District Contract with Oiltanking Beaumont Partners, LP RICH WITH OPPORTUNITY 11c,A,[I 1�1 01111 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: April 19, 2011 REQUESTED ACTION: Council consider authorizing the City Manager to execute an Industrial District Contract with Oiltanking Beaumont Partners, LP. RECOMMENDATION The Administration recommends approval. BACKGROUND Industrial District Contracts enable the City to collect payments in lieu of taxes from industries located outside the city limits. Oiltanking Beaumont Partners, LP, has requested the disannexation of a 436.81 acre tract of land located at 6275 Highway 347. As with other companies in our extraterritorial jurisdiction, the City is entering into an industrial district contract with the company. The agreement will be effective upon the date of disannexation through 2015. The in-lieu of tax payment will be based on a combination of the values of the existing property on the tax roll at the date of disannexation and the values of any improvements made subsequent to the date of disannexation. The tax payment related to the property on the tax roll at the time of disannexation will be paid at 100% of property taxes due to the City, as if the industry were located within the city limits, for the duration of the contract. Any new improvements made subsequent to disannexation will be 75% of property taxes due to the City in 2012 through 2015. The 2012 payment will be calculated based on 100% of the assessed value of the existing property added to the 75% of the assessed value of any new improvements multiplied by the tax rate effective on October 1, 2011. Payments for 2012 will be due to the City on February 1, 2012. A copy of the agreement is attached for your review. BUDGETARY IMPACT In 2009, Oiltanking Beaumont paid approximately $570,000 in property taxes to the City of Beaumont, based on $89 million of property value. The City of Beaumont will not lose any tax revenue on the existing property by entering into this agreement. 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 Industrial District Contract with Oiltanking Beaumont Partners, L.P. The contract is substantially in the form attached hereto as Exhibit "A" and made a part hereof for all purposes. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 19th day of April, 2011. - Mayor Becky Ames - DRAFT THE STATE OF TEXAS § COUNTY OF JEFFERSON § AGREEMENT This Agreement is made under the authority of Section 42.044 of the Texas Local Government Code. The parties to the Agreement are The City of Beaumont, a municipal corporation and a home-rule city located in Jefferson County, Texas, hereinafter called "CITY," and Oiltanking Beaumont Partners, LP, subsidiaries and affiliates, hereinafter called "COMPANY." PREAMBLE WHEREAS, Company owns land and improvements which are a part of the terminaling facilities of said Company. The City has established an industrial district comprising a certain part of the extra-territorial jurisdiction of the City, such industrial district being known as the City of Beaumont Industrial District. WHEREAS, the Company recognizes the benefits of this Agreement and an obligation to contribute to the revenue needs of said City in an amount commensurate with the burdens placed upon the City and benefits derived by the Company by reason of being located immediately adjacent to said City. WHEREAS, the Company and the City desire to base the industrial district payment on assessed value to ensure equity among the companies. In view of the above and foregoing reasons, and in consideration of the mutual agreements herein contained, Company and City hereby agree as follows: 1 S:\AGENDA\AGENDA ITEM MEMOS\Proposed Agreement with Oiltanking Beaumont Partners LP.doc EXHIBIT "A" ARTICLE I COMPANY'S OBLIGATION Annual Payment on Company's Property 1. Commencing with the calendar year 2012 and each calendar year thereafter for the duration of this Contract, the Company will pay the City a certain sum which will be computed on the assessed value of the Company's facilities and property, real, personal, and mixed located on Company's land covered by this contract. (Herein "the properties") 2. By the term "Assessed Value" is meant the 100% valuation of the Company's properties, as determined by the Jefferson County Appraisal District for the previous tax year. 3. The term "assumed City taxes due" shall be calculated by the following formula: Assumed City Taxes Due: Assessed Value / 100 X Current City Tax Rate = Assumed City Tax Due 4. Payment Procedures The procedures for determining and making such payments shall be as follows: (a) The payment for 2012 shall be due and payable on or before February 1, 2012, and calculated as follows: 2 S:WGENDAIAGENDA ITEM MEMOSTroposed Agreement with Oiltanking Beaumont Partners LP.doc DRAFT Assumed City Taxes Due: (1) Assessed Value of existing property, on the books at the time of disannexation, / 100 X Current City Tax Rate = Assumed City Tax Due Year 1 100% of Assumed City Taxes Due = 2012 Payment on existing property (2) Assessed Value of new improvements made after the effective date of the disannexation/ 100 X Current City Tax Rate =Assumed City Tax due Year 175% of Assumed City Taxes Due=2012 Payment on new improvements Total 2012 Payment= (1) + (2) Each October thereafter, the Chief Financial Officer shall obtain the most recent assessed values as set by the Jefferson County Appraisal District for the Company's properties, real, personal and mixed, having taxable situs within the areas described in this Agreement; for example, in October, 2011, the 2011 assessed values shall be used for the February 1, 2012 payment. This assessed value shall be used in the calculation of the payment. If the assessed values for the period required are in question and/or under litigation with the Jefferson County Appraisal District, payment shall be computed on the most recent certified values from the Jefferson County Appraisal District. The Company shall notify the City following resolution of the appraised value question and an adjustment for the payment, without interest, will be made within thirty (30) days following such resolution. 3 S\AGENDA\AGENDA ITEM MEMOS\Proposed Agreement with Oiltanking Beaumont Partners LP.doc (b) After the assessed value of the Company's properties has been determined, the payments due hereunder shall be calculated in accordance with the following schedule: The 2012 - 2015 payments shall be 100% of assumed City taxes due on existing property and 75% on any new improvements. If payment is not made on or before any due date, the same penalties, interest, attorneys' fees and costs of collection shall be recoverable by the City as would be collectible in the case of delinquent ad valorem taxes. Further, if payment is not timely made, all payments which otherwise would have been paid to the City had Company been in the City limits of City will be recaptured and paid to the City within 60 days of any such event. ARTICLE II PROPERTY COVERED BY AGREEMENT This instrument will reflect the intention of the parties hereto that this instrument shall govern and affect the properties of Company (facilities, real, personal, and mixed) located on Company's real property as shown on the records of the Jefferson County Appraisal District which are within the extra-territorial jurisdiction of the City of Beaumont. See Exhibit A for the legal description of property covered by this agreement. This agreement shall also govern and affect any improvements or additions to the existing property. ARTICLE III SALE BY COMPANY Company shall notify City of any sale of any or all of Company's facilities to any person or entity. It is the intent of the parties that no sale of any of Company's facilities will affect the amount to be paid to the City as provided under this Agreement. Accordingly and as to 4 S:\AGENDA\AGENDA ITEM MEMOS\Proposed Agreement with Oiltanking Beaumont Partners LP.doc DRAFT payments due under this contract, no such sale shall reduce the amount due the City under this contract until the purchaser of such facility has entered into a contract in lieu of taxes with the City that provides for a continuation of like payments to the City. ARTICLE IV CITY'S OBLIGATIONS 1. City agrees that it will not annex, attempt to annex or in any way cause or permit to be annexed any portion of lands or facilities or properties of said Company covered by this Agreement for the period of the agreement except as follows: (a) If the City determines that annexation of all or any part of the properties covered by this Agreement belonging to said Company is reasonably necessary to promote and protect the general health, safety and welfare of persons residing within or adjacent to the City, the City will notify Company in accordance with State law of the proposed annexation. In the event of such annexation, Company will not be required to make further payment under this Agreement for any calendar year commencing after such annexation with respect to the property so annexed, but shall nevertheless be obligated to make full payment for the year during which such annexation becomes effective if the annexation becomes effective after January 1 st of said year. (b) In the event any municipality other than the City attempts to annex separately or in the event the creation of any new municipality shall be attempted so as to include within its limits any land which is the subject matter of this Agreement, City shall, with the approval of Company, seek immediate legal relief against any such attempted annexation or incorporation 5 S:\AGENDA\AGENDA ITEM MEMOSTroposed Agreement with Oiltanking Beaumont Partners LP.doc and shall take such other legal steps as may be necessary or advisable under the circumstances with all cost of such action being borne equally by the City and by the said Company or companies with the Company's portion allocated on the basis of assessed values. 2. The City further agrees that during the term of this agreement, there shall not be extended or enforced as to any land and property of Company within said City of Beaumont Industrial District, any rules, regulations, or any other actions: (a) seeking in any way to control the platting and subdivisions of land, (b) prescribing any buildings, electrical, plumbing or inspection standards or equipment, or (c) attempting to regulate or control in any way the conduct of Company's activities, facilities or personnel thereof. 3. It is understood and agreed that during the term of this agreement or any renewals thereof, the City shall not be required to furnish any municipal services to Company's property located within the City of Beaumont Industrial District; provided, however, City agrees to furnish fire protection to Company should such protection be requested by Company in the event an unusual emergency situation occurs. The City will also provide police protection if called upon by the Jefferson County Sheriff's Department for assistance. ARTICLE IV TERMINATION OF BREACH It is agreed by the parties to this Agreement that only full, complete and faithful performance of the terms hereof shall satisfy the rights and obligations assumed by the parties and that, therefore, in addition to any action at law for damages which either party may have, Company shall be entitled to enjoin the enactment or enforcement of any ordinance or charter amendment in violation of, or in conflict with, the terms of this Agreement and shall be entitled 6 SAAGENDMAGENDA ITEM MEMOSTroposed Agreement with Oiltanking Beaumont Partners LP.doc DRAFT to obtain such other equitable relief, including specific performance of the Agreement, as is necessary to enforce its rights. It is further agreed that should this Agreement be breached by Company, the City shall be entitled, in addition to any action at law for damages, to obtain specific performance of this Agreement and such other equitable relief necessary to enforce its rights. ARTICLE V TERM OF AGREEMENT The term of this Agreement shall be for four(4) years, commencing January 1, 2012, and ending on December 31, 2015. ARTICLE VI NOTICES Any notice provided for in this Contract, or which may otherwise be required by law shall be given in writing to the parties hereto by Certified Mail addressed as follows: TO CITY TO COMPANY Kyle Hayes, City Manager Kim M. Ivy, Vice President and Terminal Manager City of Beaumont Oiltanking Beaumont Partners, LP 801 Main 6275 Hwy 347 Beaumont, Texas 77704 Beaumont, TX 77705 7 SAAGENDA\AGENDA ITEM MEMOS\Proposed Agreement with Oiltanking Beaumont Partners LP.doc ARTICLE VII CONTINUATION If this Agreement shall be held invalid by any court of competent jurisdiction, such holding shall not affect the right of City to any payment made or accruing to City hereunder prior to such adjudication, and this provision is intended to be an independent and separable provision not to be affected by such adjudication. 8 S:AGENDA\AGENDA ITEM MEMOS\Proposed Agreement with Oiltanking Beaumont Partners LP.doc DRAFT IN WITNESS THEREOF, this Agreement, consisting of 8 pages, is executed in duplicate counterparts as of this day of , 2011. CITY OF BEAUMONT, TEXAS By: Kyle Hayes City Manager ATTEST: Tina Broussard City Clerk COMPANY By: ATTEST: 9 S:\AGENDA\AGENDA ITEM MEMOS\Proposed Agreement with Oiltanking Beaumont Partners LP.doc Oiltanking Beaumont Partners, L.P. Industrial District BEING a 523.23 acre tract composed of the following tracts: 1. All of that certain called 461.42 acre tract of land identified as "TRACT A" as described in a "Special Warranty Deed" from BP Pipelines North America) Inc. to Oiltanking Beaumont Partners, L.P. as recorded in Clerk's File No. 200101484, Official Public Records of Real Property, Jefferson County, Texas, save and except that certain called 24.6091 acre tract of land as described in a "Special Warranty Deed" from Oiltanking Beaumont Partners, L.P. to TX Energy, LLC as recorded in Clerk's File No. 2009022171, Official Public Records, Jefferson County, Texas. 2. All of that certain called 24.6091 acre tract of land as described in a "Special Warrarty Deed" from TX Energy, LLC to Oiltanking Beaumont Partners, L.P. as recorded in Clerk's File No. 2009022170, Official Public Records of Real Property, Jefferson County, Texas. 3. The Easterly 1.36 acres of that certain called 2.108 net acre tract identified as "TRACT D" as described in a "Special Warranty Deed" from Mamie McFaddin Ward Heritage Foundation, et al. to Oiltanking Beaumont Partners, L.P. as recorded in Clerk's File No. 2005006972, Official Public Records of Real Property, Jefferson County, Texas. Said 1.36 acre tract being that portion of"TRACT D" lying East of the East right-of-way line of the K.C.S. Railroad. 4. All of that certain called 6.4 acre tract of land identified as "TRACT E"as described in a "Special Warranty Deed" from Mamie McFaddin Ward Heritage Foundation, et al. to Oiltanking Beaumont Partners, L.P. as recorded in Clerk's File No. 2005006972, Official Public Records of Real Property, Jefferson County, Texas. 5. 54.05 Acres of the Neches River adjacent to the above referenced 24.6091 acre Oiltanking Beaumont Partners, L.P. tract and the remainder of the above referenced 461.42 acre Oiltanking Beaumont Partners, L.P. tract. AJARA 61' H H177:1 EYAND:1 SSCJCL47FS.INC 3 April 19,2011 Consider approving a resolution designating a portion of Calder Avenue as the Calder Historic Antiques District RICH WITH OPPORTUNITY BEA,UMON* T • E • X • A • s City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager GS� PREPARED BY: Chris Boone, Community Development Director MEETING DATE: April 19, 2011 REQUESTED ACTION: Council consider a resolution designating a portion of Calder Avenue as the Calder Historic Antiques District. RECOMMENDATION Administration recommends approval. BACKGROUND One of the anticipated benefits of the Calder project is to provide a revitalized and enhanced retail area in this central part of the city. It was and is anticipated that the new streetscape on Calder would encourage additional shopping traffic and encourage new businesses to locate along Calder in response to this traffic. Along with restaurants, bakeries and coffee shops, antique shops offer one of the best opportunities to attract new visitors to Calder. These businesses utilize historic buildings, located along Calder, as showplaces for their merchandise. In cooperation with the Southeast Texas Antique Dealers Association, more than nine(9) antique dealers have been identified just along one portion of Calder. Attached is a map of the proposed Calder Historic Antiques District, running from the Mildred Building,just east of MLK, to the interstate on the west. The purpose of the district is to bring attention to the antique dealers located there as well as encourage additional dealers to locate along Calder. Directions to the district will be provided through new way finding signs and the district itself would be identified with banners. This designation, along with marketing materials from the Beaumont Convention and Visitors Bureau and the Antique Dealers Association should help to identify the area as an antiques destination, attracting visitors not just from our area,but beyond. BUDGETARY IMPACT Economic Development Initiative (EDI) funds and the Capital Reserve Fund may be used for signs for the district. RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT an area along CalderAvenue be designated as the Calder Historic Antiques District, as shown on Exhibit "A," attached hereto and made a part hereof for all purposes. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 19th day of April, 2011. - Mayor Becky Ames - Calder Historic Antiques District r w m r W i ... .. W r o- 4 S � m Antique Shops