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PACKET MAR 19 2013
R/Q■ WITH OTPOUTUXITT BEAUMON* T - S - ][ - A - S REGULAR MEETING OF THE CITY COUNCIL COUNCIL CHAMBERS MARCH 19,2013 1:30 P.M. CONSENT AGENDA * Approval of minutes—February 26, 2013 * Confirmation of committee appointments Shani Daigle would be appointed to the Planning and Zoning Commission. The term would commence March 19, 2013 and expire March 18, 2016. (Councilmember Audwin M. Samuel) A) Approve a resolution authorizing the City Manager to renew the loan agreement with the National Museum of the United States Air Force B) Approve a resolution authorizing the City Manager to execute an agreement for the payment of licensing fees C) Approve a resolution authorizing the acceptance of two twenty foot wide Exclusive Sanitary Sewer Easements located near 3740 111-10 South D) Approve a resolution authorizing the City Manager to sign a License Agreement allowing City Forces to install an electric supply line encroaching on Burlington Northern Sante Fe property E) Approve a resolution amending an agreement with Network USA, LLC, for placement of additional fiber optic cable in the public right-of-way F) Approve a resolution accepting maintenance of the street, storm sewer, water and sanitary sewer improvements in LaBelle Park Subdivision Phase One RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the following appointment be made: Appointment Commission Beginning Expiration of Term of Term Shani Daigle Planning and Zoning Commission 03/19/13 03/18/16 PASSED BY THE CITY COUNCIL of the City of Beaumont this the 19th day of March, 2013. - Mayor Becky Ames - A RICH WITH OPPORTUNITY r T • E • X • A • s .City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Ryan Slott, Parks and Recreation Director MEETING DATE: March 19, 2013 REQUESTED ACTION: Council consider a resolution authorizing the City Manager to renew the loan agreement with the National Museum of the United States Air Force. BACKGROUND In 1992, the United States Air Force loaned the City a jet to be used only for display purposes. The jet is located at Babe D. Zaharias Park. Department of Defense regulations require the Air Force to check each year on the status of the jet to be sure that it is being used as intended. The National Museum of the United States Air Force, which is now charged with the responsibility of verifying the status of the jet, is requesting that the loan agreement be renewed in accordance with the original terms of the loan and federal regulations. The jet is an attractive addition to the park and staff wishes to keep it there on display. FUNDING SOURCE There is no budgetary impact. RECOMMENDATION Approval of resolution. Revised January 2013 NATIONAL MUSEUM OF THE UNITED STATES AIR FORCE (NMUSAF) STATIC DISPLAY PROGRAM 2013 LOAN AGREEMENT, SDA0282 1.0. Parties. This Agreement is entered pursuant to Public Law 80-421 [10 United States Code(USC) §2572], and any amendments thereto, and is effective as of 1 April 2013 between the United States of America,or, "the Government," represented by the National Museum of the United States Air Force(NMUSAF), and collectively referred to hereinafter as "the Lender," and the CITY OF BEAUMONT hereinafter called "the Borrower," incorporated and operating under the laws of the State/Country of TX and located at BEAUMONT. The Government hereby establishes with the Borrower a loan agreement for U.S. Air Force (USAF) historical property for the period commencing 1 April 2013 and ending 31 March 2014. This agreement is not transferable. 2.0. Borrower Obligations/Costs. The Borrower has applied, in writing, for the loan of USAF historical property, and hereby agrees to be responsible for all arrangements and, in accordance with 10 USC §2572, is required to pay all costs,charges and expenses incident to the loan of this property, including,but not limited to, the cost of preparation, demilitarization, hazardous material removal, disassembly, packing, crating, handling, maintenance,repair,restoration,transportation and all other actions incidental to the use and/or movement of the loaned property to or from the Borrower's location. 3.0. Loaned Property. The NMUSAF shall loan to the Borrower the historical property identified in the inventory report, which has been included in the loan package and is incorporated into this Agreement.by reference as if fully rewritten herein (hereinafter the "Property"). The Borrower accepts the Property on an "as is, where is basis, and the Lender makes no warranties, expressed or implied, as to the Property's condition, fitness for any particular purpose,or other warranty of any kind. 4.0 Loan Conditions. 4.1. The Borrower agrees that the Property shall be used for static display purposes only. Loaned aerospace vehicles will not be flown or restored to flying condition under any circumstance, nor will they be licensed with the Federal Aviation Administration (FAA). The Borrower shall not remove any parts from loaned aircraft except as directed in paragraph 4.2. Relocation of the Property for temporary special events (parades, ceremonies, air shows, etc.) is not authorized under any circumstances. No decorations of any type, for any purpose (special event, seasonal display, ceremonies, etc.) are authorized to be displayed on any of the Property. 4.2. The Borrower agrees to allow the Lender to remove parts from loaned aerospace vehicles for NMUSAF or military requirements, upon written direction from the NMUSAF. Such parts are generally internal in nature and removal or replacement should not alter the external aesthetic appearance of the aerospace vehicle. 4.3. The Borrower shall not part with possession of the Property or any component of the Property in any manner to any third party either directly or indirectly. The Borrower shall not enter into any negotiations with a third party regarding any future disposition of the loaned material, in whole or in part. 4.4. The Borrower agrees to all of the following: to use the Property in a careful and prudent manner; to not modify the Property in any manner, without prior written permission of the Lender, which would alter the original form, design, or the historical significance of said Property; to perform routine maintenance to include (but not limited to) annual upkeep, periodic painting, repair of damage, day-to-day care and management of the Property, so as to provide an acceptable appearance and to not reflect negatively on the Lender; and to display 1 Revised January 2013 and protect the Property in accordance with the instructions set forth in Attachments 1 and 2, which are incorporated into this Agreement by reference as if fully rewritten herein. 4.5. The Borrower agrees that any additions, modifications or alterations that improve the Property become part of said Property and are owned by the NMUSAF. 4.6. Interior access to loaned aerospace vehicles (cockpit, cargo areas, etc.) for purposes other than maintenance or restoration work by persons other than staff or authorized maintenance personnel is prohibited. This is to ensure not only the integrity and preservation of the aircraft, but more importantly, the safety and security of the public. 5.0. Use as Security, Sale or Lease. The Borrower agrees not to use the Property as security for any loan, and not to sell,lease,rent,lend,or exchange the Property under any circumstances. 6.0. Professional Photography. The Borrower shall not make or allow the use of the Property in any manner for commercial use, such as still or motion video production, without prior written approval from the Lender. Casual photography or motion video created by visitors for personal or non-promotional use is permitted. 7.0. Incident Reporting. The Borrower shall within one (1) working day of discovery, notify the Lender of any instance of loss,damage or destruction of the Property. 8.0. Title. The Borrower shall obtain no interest in the Property by reason of this Agreement and title shall remain in the Lender at all times. 9.0. Receipt,Custody&Liability. 9.1. This Agreement shall be executed prior to the Borrower accepting physical custody of the Property or on or before 1 April 2013. 9.2. The Borrower agrees to provide a receipt to the Lender at the time it assumes physical custody of the Property(unless the Property is already in its possession). 9.3. The Borrower agrees that it is strictly liable for up to the full replacement value (FRV) of the Property,as identified in the inventory report,and to accept such liability upon assuming physical custody of the Property or execution of this Agreement,whichever occurs first. 9.4. The Borrower agrees that the FRV of the Property is as identified in the inventory report and waives any right to contest the FRV in any legal proceeding. In the event any item of historical property does not have an FRV identified in the inventory report,the FRV shall be determined at the sole discretion of the NMUSAF. 9.5. The Borrower agrees that if the Property, or any portion thereof, has been irreparably damaged, destroyed or stolen the NMUSAF may direct the Borrower to either replace the Property with an historical item of equal value to the satisfaction of the NMUSAF or require monetary reimbursement equaling the FRV. In the event of less than total loss to the Property, or any portion thereof, the Borrower agrees to repair/replace the damage to the Property to the satisfaction of the NMUSAF or reimburse the NMUSAF for the full value of the damage, as determined by the NMUSAF. The election of a remedy under this subparagraph is at the sole discretion of the NMUSAF. This subparagraph is not intended to waive or limit the Government's rights and remedies,legal or equitable,and the Government reserves all such rights and remedies. 9.6. The Borrower agrees to place the Property on exhibit within ninety (90) days from the date it takes physical custody, or as otherwise mutually agreed upon. 2 Revised January 2013 10.0. Borrowers Responsibilities. 10.1. The Borrower agrees to indemnify, save harmless, and defend the Lender from and against all claims, demands, actions, liabilities,judgments, costs,and attorney's fees, arising out of,claimed on account of, or in any manner predicated upon personal injury, death, or property damage caused by or resulting from possession and/or use of the Property. 10.2. The Borrower agrees to report as requested to the Lender on the condition and location of the Property. Further,the Borrower agrees to allow authorized Department of Defense representatives access to the Borrower's records and facilities to assure accuracy of information provided by the Borrower and compliance with the terms of this Agreement. 10.3. The Borrower agrees to return said Property to the Lender on termination of this Agreement or earlier, if it is determined that the Property is no longer required, at no expense to the Lender. In the event of a partial termination, the Borrower agrees to the return of all items of the Property subject to the partial termination,at no expense to the Lender. 11.0. Initial Loan Agreement Requirements. 11.1. The Borrower agrees to furnish the Lender a CD/DVD containing digital images of the Property within fifteen (15) days of taking physical possession of the Property. The image file name must be the accession number for that item(i.e. SD-2000-0136.JPG). For aircraft and ballistic missiles, images will include views showing all external surfaces including tail number and all accessible interior areas including instrument panels, avionics racks and equipment, aircrew, passenger, cargo and payload compartments, wheel wells, and bomb bays. Digital images for all other artifacts will be of sufficient detail to insure positive identification of each object. 11.2. The Borrower shall arrange insurance coverage for the Property on an all-risk,wall-to-wall basis, at a minimum, for an amount that equals the total agreed upon FRV for all items in the inventory report, plus any additional amount to cover the inventory that does not have an identified FRV, so long as the Property remains in its possession. The Borrower further agrees to furnish the Lender proof of said insurance. For Borrowers with private insurance coverage, proof shall constitute a copy of the insurance certificate from the commercial -provider, noting any deductible, and showing coverage up to the FRV of the Property and any additional coverage for Property that does not have an FRV identified in the inventory report. For self-insured organizations, proof shall constitute a written and signed statement attesting to its ability to reimburse the Government for the FRV of the Property. (as identified in the inventory report and/or as determined by the NMUSAF). 12.0. Annual Loan Renewal Requirements. 12.1. The Borrower agrees to furnish the Lender a CD/DVD containing digital images of the Property. The image name must be the accession number for that item (i.e. SD-2000-0136.JPG). Digital images of aircraft and missiles will provide general views to include sufficient detail to show the overall condition and tail number of the airframe. Digital images for all other artifacts will be of sufficient detail to insure positive identification of each object and its current condition. 12.2. The Borrower agrees to furnish a copy of the most recent annual financial statements to include revenue and expense reporting and a projected budget for the next operating year. 3 Revised January 2013 12.3. The Borrower agrees to furnish the Lender proof of insurance as required in subparagraph 11.2 for each renewal period. 12.4. The Borrower agrees to furnish a signed inventory as provided by the Lender with the annual renewal package, which accurately reflects the Property in its possession. Discrepancies in the inventory provided by the Lender shall be noted on the inventory report by the Borrower to the extent that such notes accurately reflect the current inventory held by the Borrower. In the event of a dispute, the Lender shall make the final determination of the current inventory on or near the renewal date and document the NMUSAF records accordingly. 13.0. Display/Maintenance Requirements. 13.1. No aircraft will be renovated, reconfigured, have markings changed, or tail number altered, or any parts added,removed, or replaced as part of a planned restoration effort without prior written approval from the NMUSAF. 13.2. The Borrower agrees that all aircraft, missiles and artifacts on display will have an identification sign adjacent to each display. For aircraft and missiles note the type,model,and serial number. If the aircraft or missile has been reconfigured,markings changed, or serial number altered after acquisition for display purposes, it will be stated on the sign and noted in all records as follows: "The item on display is actually _nomenclature) , Serial No. , but painted and marked to depict (nomenclature, Serial No. ; assigned to the (unit and/or person) in (location or theater l during ear ". 13.3. The sign will state that the item is part of the NMUSAF collection as follows: "This(artifact/object)is on loan from the National Museum of the United States Air Force." 13.4. For aircraft on which the serial number has been altered for display purposes with prior written approval, the model, design and series (i.e. F-100C or F-4C) along with the original serial number will be stenciled in two inch letters using contrasting paint colors on the fuselage under the horizontal stabilizers. 13.5. All record keeping will reflect the true serial number. 14.0. Radioactive Components. 14.1. Completion of Section 2 of Air Force Form 3580, (USAF Museum Aerospace Vehicle Static Display Acceptance Condition and Safety Certificate), or comparable certification indicating that a complete radioactive material survey has been accomplished shall be included in the official file. 14.2. In accordance with Attachment 1, ("NMUSAF Loan and Static Display Programs' Instructions for Preparation and Maintenance of Aerospace Vehicles"), if radioactive items are determined to have been installed or reinstalled during later inspections, the Borrower will pay the cost of removal of the radioactive items and any decontamination required. 15.0. Loan Termination. 15.1. The failure of the Borrower to observe any of the conditions set forth in this Agreement and Attachments 1 and 2 thereto shall be sufficient cause for the Lender to terminate the loan and repossess the Property. Repossession of all or any part of the Property by the Lender shall be made at no cost or expense 4 Revised January 2013 to the Government; the Borrower shall be responsible for paying all maintenance, freight, storage, crating, handling,transportation and other costs or charges attributable to such repossession. 15.2. In the event the loan is terminated for any reason, the provisions of this Agreement will remain in effect until all of the Property, or in the event of a partial termination that portion of the Property at issue, has been relocated and in a condition that is satisfactory to the NMUSAF. 15.3. Termination of the loan and subsequent repossession of all or any part of the Property at the option of the Borrower shall require no less than thirty (30) days advance notice to the Lender in writing. This requirement may be waived by the.Lender only through the provision of a written waiver to the Borrower prior to the return of the Property. 15.4. The Lender reserves the right not to renew this Agreement, in all or part,and to recall the Property if required by the Lender to meet the requirements of the NMUSAF, Wright-Patterson AFB, OH or for military requirements. The Lender will provide a written thirty(30)day notice of intent to recall to the Borrower. In the event of recall,movement of the recalled Property from the Borrower's site will be accomplished at the Lender's expense. 16.0. Dispute Resolution. In the event a dispute arises between the parties over the terms and conditions of this Agreement reasonable attempts will be undertaken to resolve the matter through negotiation between the parties or persons appointed, in writing, by the parties. This Agreement shall be construed and interpreted in accordance with Federal law. If any provision herein is held unlawful or otherwise unenforceable by the Court any remaining provisions shall be considered divisible and remain in full force and effect. In the further event that negotiations fail to reach a resolution, the parties agree that the Federal District Court for the Southern District of Ohio,at Dayton,Ohio,will have exclusive jurisdiction over such disputes. 5 Revised January 2013 Executed on behalf of the Lender this Twenty-Fifth Day of January,2013 at Wright-Patterson AFB OH. UNITED STATES OF AMERICA '� By: PATRICIA A.OCHS Title: Static Display Administrator Agency: National Museum of the United States Air Force Address: NMUSAF/MUX 1100 Spaatz St Wright-Patterson AFB OH 45433-7102 Telephone: (937)255-4770 Fax Number: (93 7)656-4340 Email: patricia.ochs @wpafb.af.mil ACCEPTANCE The Borrower,through its authorized representative hereby accepts responsibility of the loaned property subject to the terms and conditions contained in the Loan Agreement set forth above. The Borrower certifies that they have read,understand and acknowledge that concealing a material fact and/or making a fraudulent statement in dealing with the federal government may constitute a violation of federal law in accordance with 18 USC §1001. Executed on behalf of the Borrower this day of 2013, CITY OF BEAUMONT,TX (Name of Borrower/Organization) By: (Signature) (Typed or Printed Name&Title) Address: Telephone: Fax Number: Email: 6 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 the necessary documents to renew the loan agreement with the National Museum of the United States Air Force for the jet on display at Babe D. Zaharias Park. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 19th day of March, 2013. - Mayor Becky Ames - B RICH WITH OPPORTUNITY 11EA,11M0N* 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: March 19, 2013 REQUESTED ACTION: Council consider a resolution authorizing the City Manager to execute an agreement with ASCAP for the payment of licensing fees. BACKGROUND The City,from time to time, sponsors performances,events and functions in and on the premises of City facilities where copyrighted music is played or performed. ASCAP is one of the entities which licenses the playing of copyrighted music and non-dramatic public performances. The City has reached an agreement with ASCAP to pay for a license which covers the playing and performing of copyrighted music in all of its facilities. The amount of the base license fee is$1,043.00. There may be additional fees for special events where the gross revenue of the event exceeds$25,000. The rate in those instances is 1%of gross revenue. FUNDING SOURCE There are sufficient funds in the Event Facilities budget to satisfy this expense. RECOMMENDATION Approval of a resolution authorizing the execution of the ASCAP License 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 a one (1) year License Agreement, with an option to renew for additional terms of one year, with ASCAP for the payment of licensing fees for music to which ASCAP holds the copyrights. The agreement is substantially in the form attached hereto as Exhibit "A" and made a part hereof for all purposes. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 19th day of March, 2013. - Mayor Becky Ames - LICENSE AGREEMENT-LOCAL GOVERNMENTAL ENTITIES C%reeme"t between American Society of Composers,Authors and Publishers("SOCIETY"),located at 2 Music Square West,Nashville,TN 37203 and City of Beaumont,TX ("LICENSEE"),located at PO Box 3827 Beaumont TX 77704-3827 as follows: 1. Grant and Term of License (a) ASCAP grants and LICENSEE accepts a license to perform publicly on the"Premises"and at"Events"and"Functions,"and not elsewhere or otherwise,non-dramatic renditions of the separate musical compositions in the"ASCAP repertory." The performances licensed under this Agreement may be by means of"Live Entertainment"or"Mechanical Music". For purposes of this Agreement, (i) "LICENSEE"shall include the named entity and any of its constituent bodies,departments,agencies or leagues. (ii) "Mechanical Music"means music which is performed at the Premises by means other than by live musicians who are performing at the Premises,including,but not limited to(A)compact disc,audio record or audio tape players (but not including"jukeboxes"),(B)videotape,videodisc or DVD players;(C)the reception and communication at the premises of radio or television transmissions which originate outside the Premises;and which are not exempt under the Copyright Law;or(D)a music-on-hold telephone system operated by LICENSEE at the Premises. (iii) "Live Entertainment"means music that is performed at the Premises by musicians,singers or other performers. (iv) "Premises"means buildings,hospitals,airports,zoos,museums,athletic facilities,and recreational facilities, including,but not limited to,community centers,parks,swimming pools,and skating rinks owned or operated by LICENSEE and any site which has been engaged by LICENSEE for use by LICENSEE. (v) "ASCAP repertory"means all copyrighted musical compositions written or published by ASCAP members or members of affiliated foreign performing rights societies,including compositions written or published during the term of this Agreement and of which ASCAP has the right to license non-dramatic public performances. (vi) "Events"and"Functions"means any activity conducted,sponsored,or presented by or under the auspices of LICENSEE. Except as set forth in paragraph 2.(d)below,"Events"and"Functions"shall include,but are not limited to,aerobics and exercise classes,athletic events, dances and other social events,concerts,festivals,arts and crafts fairs,and parades held under the auspices of or sponsored or promoted by LICENSEE on the Premises. (vii) "Special Events"means musical events,concerts,shows,pageants,sporting events,festivals,competitions,and other events of limited duration presented by LICENSEE for which the"Gross Revenue"of such Special Event exceeds$25,000(as defined in paragraph 4.(d)below). (b) This Agreement shall be for an initial term of one year,commencing January 1,2013,which shall be considered the effective date of this Agreement,and continuing thereafter for additional terms of one year each. Either party may give notice of termination to the other no later than thirty(30)days prior to the end of the initial or any renewal term. If such notice is given,the agreement shall terminate on the last day of the term in which notice is given. 2. Limitations On License (a) This license is not assignable or transferable by operation of law or otherwise. This license does not authorize LICENSEE to grant to others any right to perform publicly in any manner any of the musical compositions licensed under this agreement,nor does it authorize any public performances at any of the Premises in any manner except as expressly herein provided. (b) This license does not authorize(i)the broadcasting,telecasting or transmission or retransmission by wire,Internet,website or otherwise,of renditions of musical compositions in ASCAP's repertory to persons outside of the Premises,other than by means of a music-on-hold telephone system operated by LICENSEE at the Premises;and(ii)performances by means of background music(such as Muzak)or other services delivered to the Premises. Nothing in this paragraph shall be deemed to limit LICENSEE's right to transmit renditions of musical compositions in the ASCAP repertory to those who attend Events or Functions on the Premises by means of teleconferencing,videoconferencing or similar technology. (c) This license is limited to non-dramatic performances,and does not authorize any dramatic performances.For purposes of this agreement,a dramatic performance shall include,but not be limited to,the following: (i) performance of a"dramatico-musical work"(as hereinafter defined)in its entirety; (ii) performance of one or more musical compositions from a"dramatico-musical work(as hereinafter defined) accompanied by dialogue,pantomime,dance,stage action,or visual representation of the work from which the music is taken; EXHIBIT "A (iii) performance of one or more musical compositions as part of a story or plot,whether accompanied or unaccompanied by dialogue,pantomime,dance,stage action,or visual representation; (iv) performance of a concert version of a"dramatico-musical work"(as hereinafter defined). The term"dramatico-musical work"as used in this Agreement,shall include,but not be limited to,a musical comedy,opera,play with music,revue,or ballet. (d) This license does not authorize performances: (i) at any convention,exposition,trade show,conference,congress,industrial show or similar activity presented by LICENSEE or on the Premises unless it is presented or sponsored solely by and under the auspices of LICENSEE,is presented entirely on LICENSEE'S Premises,and is not open to the general public; (ii) by or at colleges and universities; (iii) at any professional sports event or game played on the Premises; (iv) at any permanently situated theme or amusement park owned or operated by LICENSEE; (v) by any symphony or community orchestra; (vi) by means of a coin operated phonorecord player(jukebox)for which a license is otherwise available from the Jukebox License Office. 3. License Fee (a) In consideration of the license granted herein,LICENSEE agrees to pay ASCAP a license fee which includes the total of the "Base License Fee"and any applicable"Special Events License Fees",all of which shall be calculated in accordance with the Rate Schedule attached to and made part of this Agreement. For purposes of this Agreement, (i) "Base License Fee"means the annual fee due in accordance with Schedule A of the Rate Schedule and based on LICENSEE's population as established in the most recent published U.S.Census data. It does not include any fees due for Special Events. (ii) "Special Events License Fees"mean the amount due in accordance with Schedule B of the Rate Schedule when Special Events are presented by or on behalf of LICENSEE. It does not include any Base License Fees due. (iii) LICENSEES who are legally organized as state municipal and/or county leagues or state associations of municipal and/or county attorneys shall be required to pay only the fee under Schedule C of the Rate Schedule. Such leagues or associations are not subject to Schedule A or Schedule B of the Rate Schedule. Fees paid by such leagues or associations do not cover performances of the municipality,county or other local government entity represented by the league or association. Schedule C fees are not applicable to municipal,county or other local government entities. Unless otherwise limited by law,LICENSEE shall pay a finance charge of 1.5%per month from the due date,or the maximum amount permitted by law,whichever is less,on any required payment that it is not made within thirty days of its due date. 4. Reports and Payments (a) Upon the execution of this Agreement,LICENSEE shall submit: (i) a report stating LICENSEE's population based on the most recent published U.S.Census data. The population set forth in the report shall be used to calculate the Base License Fee under this Agreement;and(ii)a report containing the information set forth in paragraph 4.(d)below for all Special Events that were presented between the effective date of this Agreement and the execution of this Agreement. (b) The Base License Fee for the first year of this Agreement and any license fees due for Special Events that were presented between the effective date of this Agreement and the execution of this Agreement shall be payable upon the execution of this Agreement. (c) Base License Fees for subsequent years shall be due and payable within 30 days of the renewal date of this Agreement and shall be accompanied by a statement confirming whether any Special Events were presented during the previous calendar year. (d) Ninety days after the conclusion of each Special Event,LICENSEE shall submit to ASCAP payment for such Special Event and a report in printed or computer readable form stating: (i) the date presented; (ii) the name of the attraction(s)appearing; (iii) the"Gross Revenue"of the event."Gross Revenue"means all monies received by LICENSEE or on LICENSEE'S behalf from the sale of tickets for each Special Event. If there are no monies from the sale of tickets,"Gross Revenue"shall mean contributions from sponsors or other payments received by LICENSEE for each Special Event; (iv) the license fee due for each Special Event. (e) If LICENSEE presents,sponsors or promotes a Special Event that is reportable under Rate Schedule B with another person or entity licensed under an ASCAP License Agreement,LICENSEE shall indicate the name,address,phone number and ASCAP account number of the other person(s)or entity(ies)and the party responsible for payment for such Special Event. If the other party is not licensed by ASCAP,LICENSEE shall pay the license fee due hereunder,notwithstanding any agreement to the contrary between LICENSEE and the other party. (f) LICENSEE agrees to furnish to ASCAP,where available,copies of all programs of musical works performed,which are prepared for distribution to the audience or for the use or information of LICENSEE or any department thereof. The programs shall include all encores to the extent possible. LICENSEE shall be under no obligation to furnish programs when they have not been otherwise prepared. (g) ASCAP shall have the right to examine LICENSEE'S books and records at LICENSEE's place of business during normal business hours to such extent as may be necessary to verify the reports required by paragraph 4.(d)above. ASCAP shall have the right to adjust LICENSEE's Base License Fee based upon the most recently available revised population figures and Population Estimates Program provided by the U.S. Census Department. 5. Breach or Default Upon any breach or default by LICENSEE of any term or condition herein contained,ASCAP may terminate this license by giving LICENSEE thirty days notice to cure such breach or default,and in the event that such breach or default has not been cured within said thirty days,this license shall terminate on the expiration of such thirty-day period without further notice from ASCAP. In the event of such termination,ASCAP shall refund on a pro-rata basis to LICENSEE any unearned license fees paid in advance. 6. Interference in Operations ASCAP shall have the right to terminate this license upon thirty days written notice if there is any major interference with,or substantial increase in the cost of,ASCAP's operations as the result of any law in the state,territory,dependency,possession or political subdivision in which LICENSEE is located which is applicable to the licensing of performing rights. In the event of such termination,ASCAP shall refund to LICENSEE on a pro-rata basis any unearned license fees paid in advance. 7. Non-Discrimination LICENSEE recognizes that ASCAP must license all similarly situated users on a non-discriminatory basis. LICENSEE agrees that any modifications to this Agreement by ASCAP,which are required by local,state or federal law for other municipalities,counties and other governmental entities shall not constitute discrimination between similarly situated users. Examples of such modifications are statements of equal employment opportunity or nondiscrimination on the basis of race,creed,color,sex or national origin. 8. Notices ASCAP or LICENSEE may give any notice required by this Agreement by sending it by certified United States Mail,by generally recognized same-day or overnight delivery service or by electronic transmission(i.e.,Mailgram,facsimile or similar transmission)to the appropriate person/office as listed herein. Each party agrees to notify the other of any change in contact information,such as change of address,change of person/office responsible,etc.within 30 days of such change. AMERICAN SOCIETY OF COMPOSERS, LICENSEE City of Beaumont,TX AUTHORS AND PUBLISHERS By TITLE By (Fill in capacity in which signed: (a) If corporation,state corporate office held; (b) If partnership,write word "partner"under signature of signing partner; (c)If individual owner,write"individual owner"under signature.) F LOCAL GOVERNMENT ENTITIES 9 A s �: a I} 2013 Rate Schedule SCHEDULE A: Base License Fee 1 to 50,000 $327.00 50,001 to 75,000 $651.00 75,001 to 100,000 $783.00 100,001 to 125,000 $1,043.00 125,001 to 150,000 $1,304.00 150,001 to 200,000 $1,696.00 200,001 to 250,000 $2,086.00 250,001 to 300,000 $2,478.00 300,001 to 350,000 $2,870.00 350,001 to 400,000 $3,261.00 400,001 to 450,000 $3,651.00 450,001 to 500,000 $4,044.00 500,001 and over ***$4,955.00 *** $4,955.00 plus$500 for each 100,000 of population above 500,000 to a maximum fee of$65,205.00 SCHEDULE B: Special Events The rate for Special Events shall be 1%of Gross Revenue. "Special Events" means musical events, concerts, shows, pageants, sporting events, festivals, competitions, and other events of limited duration presented by LICENSEE for which the"Gross Revenue"of such Special Event exceeds$25,000. "Gross Revenue"means all monies received by LICENSEE or on LICENSEE'S behalf from the sale of tickets for each Special Event. If there are no monies from the sale of tickets, "Gross Revenue"shall mean contributions from sponsors or other payments received by LICENSEE for each Special Event. SCHEDULE C: nd/or County or State Aj1QGjMJjgn1.QLAttgL0W The annual license fee for LICENSEES who are legally organized as state municipal and/or county leagues or state associations of municipal and/or county attorneys shall be$327. License Fee for Year 2014 and Thereafter For each calendar year commencing 2014, all dollar figures set forth in Schedules A, B and C above(except for$500 add-on for populations of 500,001 or more)shall be the license fee for the preceding calendar year, adjusted in accordance with the increase in the Consumer Price Index-All Urban Consumers(CPI-U)between the preceding October and the next preceding October. Any additional license fees due resulting from the CPI adjustment shall be payable upon billing by ASCAP. ASCAP, PO Box 331608-7515,Nashville,TN 37203-9998 1-800-505-4052 615-691-7795 (FAX) LEpayment Websites: http://www.ascap.com/mylicense or http://www.ascap.com r LOCAL GOVERNMENT ENTITIES A s c n r 2013 Report Form Account Number: Premise Name:City of Beaumont,TX SCHEDULE A: Base License Fee (Due upon execution of Agreement and within 30 days of the Agreement's Renewal Date.) Population Size: ®,®,® Base License Fee: ,m (Per current U.S. Census Data) (Please refer to Rate Schedule) SCHEDULE B: Special Events*(Report and Payment due 90 days after the conclusion of each Special Event) Name: x .01 $ O Yes Address: O No Phone No. Account Number: Name. Address: , x .01 $ O Yes O No Phone No. Account Number: Name: x .01 $ O Yes Addre :s: O No Phone No.: Account Number: *"Special Events"means musical events,concerts,shows,pageants,sporting events,festivals,competitions,and other events of limited duration presented by LICENSEE for which the"Gross Revenue"of such Special Event exceeds$25,000. '"Gross Revenue"means all monies received by LICENSEE or on LICENSEE'S behalf from the sale of tickets for each Special Event. If there are no monies from the sale of tickets,"Gross Revenue"shall mean contributions from sponsors or other payments received by LICENSEE for each Special Event. SCHEDULE C: State Municipal and/or County Leanues or State Associations of Attorneys Report Year: ® Annual License Fee: $327.00 (Due within 30 days of Renewal Date.) Total Fees Reported From Any or All of Schedules A, B or C: "m Contact Person&Title Phone Number:®-®-® Ext: ® Fax Number: ®-®- Em ail: W ebsite: I certify the above information is true and correct. Dated: m m/® Signature: ASCAP,PO Box 331608-7515,Nashville,TN 37203-9998 1-800-505.4052 615-691-7795(FAX) Epayment Websites:http://www.ascap.com/mylicense or http:/twww.ascap.com c RICH WITH OPPORTUNITY T E BEA0 R A • s City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Dr. Joseph Majdalani, City Engineer MEETING DATE: March 19, 2013 REQUESTED ACTION: Council consider a resolution authorizing the acceptance of two (2) twenty foot(20') wide Exclusive Sanitary Sewer Easements. BACKGROUND On February 26, 2103, City Council approved Resolution No. 13-051 authorizing the acceptance of two (2)ten foot (10') wide exclusive Sanitary Sewer Easements from LaBelle Park, LLC. City Council must revoke Resolution No. 13-051 and authorize the acceptance of two (2) twenty foot(20') wide exclusive Sanitary Sewer Easements from LaBelle Park, LLC. The easements are described as being a 0.124 acre tract out of Southwest Plaza and part of Section 1, Lot 1, Block 1 situated in the C. Williams League, Abstract No. 59 and a 0.714 acre tract out of LaBelle Park, LP situated in the C. Williams League, Abstract No. 59. The sanitary sewer easements are for future commercial development near the new truck ranch located at 3740 IH-10 South. FUNDING SOURCE Not applicable. RECOMMENDATION Approval of resolution. STATE OF TEXAS X KNOW ALL MEN BY THESE PRESENTS: COUNTY OF JEFFERSON X SANITARY SEWER EASEMENT THAT, LABELLE PARK, LLC, of the County of Jefferson, State of Texas,hereinafter called "GRANTORS", for and in consideration of the sum of ONE AND NO/100 DOLLAR ($1.00), and other good and valuable consideration to us in hand paid by the CITY OF BEAUMONT, a municipal corporation domiciled in Jefferson County, Texas, hereinafter called "GRANTEE", the receipt and sufficiency of which consideration is hereby acknowledged, have GRANTED, SOLD and CONVEYED, and by these presents do GRANT, SELL and CONVEY unto the CITY OF BEAUMONT, P. O. Box 3827, Beaumont, Texas 77704, Jefferson County, Texas, its successors and assigns, a Sanitary Sewer Easement and the right to construct, alter, and maintain said sanitary sewer line and appurtenances on the hereinafter described lands which said easement is under, over, in and across that certain tract or parcel of land owned by GRANTORS situated in the County of Jefferson, State of Texas, and being more particularly described in Exhibit "A" attached and made a part hereof for all purposes. The easement herein granted shall be used for the purpose of placing, constructing, operating, repairing, rebuilding, replacing, relocating, removing sanitary sewer lines and appurtenances, and the following rights are also hereby conveyed: It is expressly understood and agreed that the City of Beaumont shall have the right of ingress to and egress from the tract of land hereinbefore described and use of the same for the purposes aforesaid, and giving said City the right and privilege to improve, maintain and operate the same as permitted by law. Grantor agrees not to place any structures or appurtenances within the Easement Property. Grantee shall not be responsible for the repair and replacement of any paving or other structures within the Easement Property. TO HAVE AND TO HOLD the above described easement and right-of-way unto the said CITY OF BEAUMONT, its successors and assigns forever. EXECUTED this day of , 20 GRANTORS: LABELLE PARK, LLC ACKNOWLEDGMENT STATE OF TEXAS X COUNTY OF JEFFERSON X BEFORE ME, the undersigned authority, on this day personally appeared as of LABELLE PARK, LLC, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same as the act of such corporation for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE,this day of , 20 Notary Public, State of Texas RETURN TO:City of Beaumont Antoinette Hardy- Engineering P. O. Box 3827 Beaumont, TX 77704 i I W,4 \ "Recognizing the landmarks of the,past...setting our foresight towards the future with Advanced Geospatial Technology" LAND SURVEYORS INC. Richard L. Wurthey, RPLS J.L. Sims, Jr., RPLS Michael D. McGuinness, RPLS, CHS Gregory S. Kays, RPLS EXHIBIT "A" Page I of 3 January 29, 2013 Surveyor's Field Note Description:0.124 Acre Exclusive City Sanitary Sewer Easement BEING a 0.124 acre (5414.57 square feet) tract of land (Exclusive City Sanitary Sewer Easement) out of and a part of that certain Southwest Plaza, Section 1, Lot 1, Block 1 called 3.717 acre tract more fully described and recorded in Volume 9, Page 133 of the Map Records.of Jefferson County, Texas and also being out of and a part of that certain LaBelle Park, LP called 65.57 acre tract of land, more fully described and recorded in Clerk's File No. 2005032191 of the Official Public Records of Jefferson County, Texas. Said 0.124 acre (5414.57 square feet) tract of land(Exclusive City Sanitary Sewer Easement)being situated in the C. Williams League, Abstract No. 59,Jefferson County, Texas and being more particularly described as follows: COMMENCING at a 1 inch iron pipe found in the West line of said 65.57 acre tract, same being the East line of that certain Asset Alliance Group, Ltd called 28,825 acre tract, more fully described as Tract IV and recorded in Cleerk"s File No, 1999048299 of said Official Public Records and same being the Northwest corner of said 3.717 acre tract; Thence North 87 deg. 27 min. 16 sec. East along and with the North line of said 3.717 acre tract, a distance of 280.03 feet to a point in the West right-of-way line of Rexora Drive (60 feet wide right-of-way) and being the beginning of a curve to the left; Thence in a Southeasterly direction along and with the West line of said Rexora Drive and said curve to the left, having a radius of 205.00 feet,a chord bearing of South 26 deg. 34 min. 08 sec. East, a chord length of 165.12 feet, a delta angle of 48 deg. 25 min. 01 sec, and an arc distance of 173.23 feet to a point for corner; Thence South 50 deg. 40 min. 26 sec. East continuing along and with the West line of said Rexora Drive, a distance of 159.47 feet to a point for the beginning of a curve to the right; Thence in a Southeasterly direction along and with the West line of said Rexora Drive and said curve to the right, having a radius of 35.40 feet,a chord bearing of South 33 deg. 36 min. 16 sec. East, a chord length of 20.55 feet, a delta angle of 34 deg, 08 min. 19 sec, and an arc distance of 20.85 feet to the POINT OF BEGINNING of the tract of land herein described; Corporate Office: 1480 Cornerstone Court Beaumont, Texas 77706 Tel: 409,866.9769 Fax: 409.866.7075: www.worteci).com W,4 RTECH .AND SURVEYORS, INC. EXHIBIT "A" Page 2 of 3 0.124 Acre Exclusive City Sanitary Sewer Easement THENCE continuing along and with said curve to the right and the West line of said Rexora Drive in a Southwesterly direction, having a radius of 35.00 feet, a chord bearing of South 15 deg. 46 min. 35 sec. West, a chord length of 37.42 feet, a delta angle of 64 deg. 37 min. 23 sec. and an arc distance of 39.48 feet to a point for corner in the Northwest right-of-way line of Interstate Highway 10 (right-of-way width varies); THENCE South 48 deg. 05 min. 16 sec. West along and with the Northwest line of said Interstate Highway 10, same being the Southeast line of said 3.717 acre tract, a distance of 246.46 feet to a point for the most Southerly corner of said 3.717 acre tract, same being the most Easterly corner of that certain E. H. Steinhagen, Jr. called 2.390 acre tract, more fully described and recorded in Film Code No. 101-67-1711 of said Official Public Records; THENCE North 50 deg. 53 min. 43 sec. West along and with the Southwest line of said 3.717 acre tract, same being the Northeast line of said 2.390 acre tract, a distance of 20.25 feet to a point for corner; THENCE North 48 deg. 05 min. 16 sec. East, a distance of 281.25 feet to the PLACE OF BEGINNING, containing 0.124 acre (5414.57 square feet)of land, more or less. (This description is based upon a survey made on the ground under my direct supervision on January 3-17, 2013 and is being submitted along with a survey plat showing the property and facts found as described herein. All bearings are based upon the Texas Coordinate System of 1983, South Central Zone `4204' (U.S. Survey Foot). All distances and acreages are surface with a combined adjustment factor of 1.00007 applied.) r ROTtered Professional Land Su eyor t� 4t 1. , SI S, 7 4599 #U% Vicinity Map EXHIBIT "A" Not to Scale Page 3 of 3 Exclusive City ^o ti e Exclusive Sanitary Sewer Easement Sanitary Sewer Easement ss '9 Walden Road N�1?A B�?8 0' 50' 100' 200' MINIM Scale:1"=100' Curve Table CURVE RADIUS ARC LENGTH CHORD LENGTH CHORD BEARING DELTA ANGLE C1 145.00' 122.83' 119.19' S26°33'07"E 48°32'10" C2 35.00' 55.88' 50.13' N82°18'59"E 91°29'01" C3 205.00' 173.23' 168.12' S26°34'08"E 48°2601" C4 35.00' 60.33' 53.13' So1"1T35"E 98"45'42" C5 35.00' 39.48' 37.42' S15"46'35"W 64°37'23" C6 35.00' 20.85' 20.55' S33°36'16"E 34"08'19" N87°27'16"E 340.03' Fnd 518" Fnd 1" 60.00' I.Rod I.Pipe 280.03' LaBelle Park.LP Called 65.57 Acre Tract oq CC," C.F.No.2005032191 Sanitary Sewer O.P.R.J.C. Easement Asset Alliance Group.Ltd N Je C� Tract IV ni- Oj Called 28.825 Acre Tract A lea yg 19994299 N a C.F.No. 'PSSO O.P.R.J.C. v AO ``` � 4 � ti 0 7> ^ry 0 a G" Ply Southwest Plaza S,SO" Section 1,Lot 1,Block �s� tt Called 3.717 Acres C2 Volume 9,Page 133 7y. M.R.J.C. 94j, r✓6 n D S34�P �a.�ay� .� ae\ 4846 0��6 op E.H.Steinhagen,Jr. �a0 6 ry ��a,tea � Called 2.390 Acre Tract F.C.No.101-67-1711 5a O.P.R.J.C. �`or Note: All Bearings are referenced to the Texas Coordinate System of 1983(CORS),South, y�°yo ati Central Zone'4204'(US Survey Foot). All 0 ro6• �'� distances and acreages are surface with a combined adjustment factor of 1.00007 applied. tk (3L SUBMITTING INFORMATION: LaBelle Sa�1�a 55`p1� Park, P O.Box 31 LC Beaumont,Texas 77704 Martin Broussard 409-833-1461 Nonce: The findings and opinions of WORTECH Land Surveyors,Inc.reflected herein are privileged,confidential and intended only for the use of the Individual or entity for whom this work was prepared. It Is understood that the use of,reliance on,or reproduction of same,in whole or In part,by others without the express written consent of WORTECH Land Surveyors,Inc,is prohibited and without warranty,express or Implied. WORTECH Land Surveyors,Inc.shall be held harmless against any damages or expenses resulting from such unauthorized use, reliance or reproduction.Copyright 2013.All rights reserved. Job No: 2012-M Plat Showing Field Book: 741/013-016 732/002 Exclusive City Sanitary Sewer Easement Dr.By: MWG „�.., Off out of Date: 1/29/2013 - ` Rev.No: 0-Final Issue a-., � _ Southwest Plaza �i Section 1,Block 1,Lot 1 t o]�/�C' T L C H f and a rl 1�/�_1,�•; 9r Called 65.57 Acre Tract LAND SURVEYO RS, INC. l*-'ri;9 C.Williams League,Abstract No.59 r r-C ;' Jefferson County,Texas Surveyed January 3-17,2013 TMs document not valid without original Field Note Description Attached To This Plat v'.v W.wOt'L.'CIt.COrt; seal and SignetUM of person 0-MYing STATE OF TEXAS X KNOW ALL MEN BY THESE PRESENTS: COUNTY OF JEFFERSON X SANITARY SEWER EASEMENT THAT, LABELLE PARK, LLC, of the County of Jefferson,State of Texas, hereinafter called "GRANTORS", for and in consideration of the sum of ONE AND NO/100 DOLLAR ($1.00), and other good and valuable consideration to us in hand paid by the CITY OF BEAUMONT, a municipal corporation domiciled in Jefferson County, Texas, hereinafter called "GRANTEE", the receipt and sufficiency of which consideration is hereby acknowledged,have GRANTED, SOLD and CONVEYED, and by these presents do GRANT, SELL and CONVEY unto the CITY OF BEAUMONT, P. O. Box 3827, Beaumont, Texas 77704, Jefferson County, Texas, its successors and assigns, a Sanitary Sewer Easement and the right to construct, alter, and maintain said sanitary sewer line and appurtenances on the hereinafter described lands which said easement is under, over, in and across that certain tract or parcel of land owned by GRANTORS situated in the County of Jefferson, State of Texas, and being more particularly described in Exhibit "A" attached and made a part hereof for all purposes. The easement herein granted shall be used for the purpose of placing, constructing, operating, repairing, rebuilding, replacing, relocating, removing sanitary sewer lines and appurtenances, and the following rights are also hereby conveyed: It is expressly understood and agreed that the City of Beaumont shall have the right of ingress to and egress from the tract of land hereinbefore described and use of the same for the purposes aforesaid, and giving said City the right and privilege to improve, maintain and operate the same as permitted by law. Grantor agrees not to place any structures or appurtenances within the Easement Property. Grantee shall not be responsible for the repair and replacement of any paving or other structures within the Easement Property. TO HAVE AND TO HOLD the above described easement and right-of-way unto the said CITY OF BEAUMONT, its successors and assigns forever. EXECUTED this day of , 20_ GRANTORS: LABELLE PARK, LLC ACKNOWLEDGMENT STATE OF TEXAS X COUNTY OF JEFFERSON X BEFORE ME, the undersigned authority, on this day personally appeared as of LABELLE PARK, LLC, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same as the act of such corporation for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE,this day of , 20 Notary Public, State of Texas RETURN TO:City of Beaumont Antoinette Hardy- Engineering P. O. Box 3827 Beaumont, TX 77704 i W *RecognizM the W&Q*s of#w PW..sediM Our foresight towards the future with Advanced Geospatfal Techaoiogy' LAND SURVEYOKS , INC , Richard L. Worthey, RPLS J.L. Sims, Jr., RPLS Michael U McGuinness, RPLS, CHS Gregory S. Kays, RPLS EXHIBIT "A" Page I of 3 January 29, 2013 Surveyor's Field Note Description: 0.714 Acre Exclusive City Sanitary Sewer Easement BEING a 0.714 acre (31110.62 square feet) tract of land (Exclusive City Sanitary Sewer Easement) out of and a part of thatcertain LaBelle Park-, LP called 65,57 acre tract of land, more fully described and recorded in Clerk's File No. 2005032191 of the Official Public Records of Jefferson County, Texas. Said 0.714 acre (31110.62 square feet) tract of land (Exclusive City Sanitary Sewer Easement) being situated in the C. Williams League, Abstract No. 59, Jefferson County, Texas and being more particularly described as follows: BEGINNING at a 5/8 inch iron rod found .at the most Easterly comer of said 65.57 acre tract, same being the South corner of that certain Bank of the West, San Angelo, Texas and Louis E, Rork, as Co-Trustees of the Bleakley Children's Trust called 2,546 acre tract of land, more fully described and recorded in Film Code No. 103-21-0006 of said Official Public Records and being in the Northwest right-of-way line of Interstate Highway 10(right-of-way width varies); THENCE South 30 deg. 49 min. 19 s". West along and with the Southeast line of said 65.57 acre tract, same being the Northwest line of said Interstate Highway 10, a distance of 67.02 feet to an angle point; THENCE South 39 deg. 03 min. 06 sec. West continuing along and with the Southeast line of said 65.57 acre tract, same being the Northwest line .of said Interstate Highway 10, a distance of 1450.21 feet to an intersection with the Northeast line of Rexora Drive (60 foot wide right-of- way)and the beginning of a non-tangent curve to the right; THENCE in a Southwesterly direction along and with the Northeast line of said Rexora Drive and said non-tangent curve to the right, having a radius of 35,00 feet, a chord bearing of Sout h 70 deg. 09 min. 16 sec. West, a chord length of 38.72 feet, a delta angle of 67 deg. 09 min. 33 sec. and an arc distance of 41.03 feet to a point for comer; THENCE North 39 deg. 03 min. 06 sec. East,a distance of 1481,93 feet to a point for corner; THENCE North 30 deg. 49 min. 19 sec. East,a distance of 96.56 feet to a point for comer in the East line of said 65.57 acre, same being the West line of said 2.546 acre tract; Corporate Office: 1480 Cornerstone Court Beaumont,Texas 77706 Tel: 409.866.9769 Fax: 409.866.7075 www.wortech.com 1 11 TECH LAND 5'lfltTORS, INC. EXHIBIT "A" Page 2 of 3 0.714 Acre Exclusive City Sanitary Sewer Easement THENCE South 02 deg. O1 min. 25 sec. 7 feet to the PLACE the East line of said 65.5 7 acre tract, same being the West line of said 2.5 46 acre tract,a distance of 36 8 OF BEGINNING, containing 0.714 acre (31110.62 square feet)of land, more or less. (This description is based upon a survey made an w�h a ground urvey plat show ng the property and January 3-17, 2013 and is being submitted g facts found as described herein. All bearings are based l upon the Texas Coo d inat System oe 1983, South Central Zone `4204' (U.S. Survey Foot). with a combined adjustment factor of 1.00007 applied.) OF R tered Professional Land Su eyor � 4599 4 ':f.� �,.,�a Vicinity Map EXHIBIT "Alt Not to Scale ; Page 3 of 3 o Exclusive Sanitary Sewer Easement Exclusive City i Sanitary Sewer z tiy�s9 Easement ss Walden Road IN d28) 0. 150' 300' 600 Scale:1"=300' Curve Table CURVE RADIUS ARC LENGTH CHORD LENGTH 8�00°0D BEARII DELTA 09'33" O Ct 35.00' 41.03' 36.72 24°19'28" Fe 14.86' 14.75' N64°06'14"W C2 35.00' 119.19' N26°33'07"W 48°32'10" �Ro�B N6ozrozw F C3 145.00' 122.83' z,a.00• M Line Table Z [ago NCE 7.02'96.56'36.87' !y �o. Q Bank of the West,San Angelo,Texas and G Pty c Louis E.Rork,as Co-Trustees of the ti ag¢8 Bleakley Children's Trust v Called 2.546 Acres ^ LaBelle Park,LP v F.C.103-21-0006 Called 65.57 Acre Tract O.P.R.J.C. C.F.No.2005032191 O.P.R.J.C. e` © Jefferson County Drainage District No.6 Tract Two Exclusive City Called 0.325 Acre Tract ry Sanita Sewer Easement C.F.No.2000010952 O.P.R.J.C. 31110.62 Sq.Ft. 0.714 Acre Q3 Jefferson County Drainage District No.6 r5 Tract One Called 5.782 Acre Tract C.F.No.2000010952 O.P.R.J.C. Oro O p0 X00 0 5� ti�As ti�aA S87.2T1fi-W Fr,d 510" aryl •C` Ind 1' 340.03' I.Rod P CP Q:O' \ I.P p- -- 280.03'60.00' c'w ? Asset Alliance Group,Ltd ��p`cFf 41 Tract IV c a��fh fo� oti Note Called 28.81998 a Tract Lo des O All Bearings are referenced to the Texas C.F.No. i� 0,'to f o Pip Coordinate System of 1983(CORS),South O.P.R.J.C' 4, Ali B7% Central Zone'4204'(US Survey Foot). All Q a e, ^ distances and acreages are surface with a 9ev s � CJ combined adiustment factor of 1.00007 E.H.Steinhagen,Jr. applied. Called 2.390 Acre Tract F.C.Nop1R1J C-17'11 SUBMITTING INFORMATION: O LaBelle Park,LLC P.O.Box 3111 Beaumont,Texas 77704 Martin Broussard 409-833-1461 NOTICES confidential and Intended only for the use of the individual or entity for whom this wo nc is The findings and opinions of WORTECH Land Surveyors,Inc.reflected herein are pHvile p others without the express written consent of WORTECH Land Surveyors, prepared. It Is understood that the use of,reliance on,or reproduction of same,In whole all b art,by Implied- reliance or and without wCopy ,Copyright press or rights reserved.CH Land Surveyors,Inc.shall be held harmless against any damages or expenses resulting from such unauthorized use, Job No: 2°12°s9 Plat Showing Field Book: 7411013-016 7321002 Dc By: MWG ��*.�. �. , Exclusive City Sanitary Sewer Easement of Dale: 1/29/2013 4t4- lie a Rev.No: 0-Final Issue '' LaBelle Park,LP Called 65.57 Acre Tract C.Williams League,Abstract No.59 [� ♦♦` 55F i+�EC rs��s4etr Jefferson County,Texas LAND SURVEYCIRS, INC. !►q 6'-o Surveyed January 3-17,2013 Field Note Description Attached To This Plat i 1 This daumgnlnW vasdwll cedlginal seal and YgnaMe o/parson cerYfyfn9 ^i.wOrl�`Gh.�OrT'I RESOLUTION NO. WHEREAS, on February 26, 2013,the City Council of the City of Beaumont,Texas, passed Resolution No.13-051 authorizing the acceptance of two (2) ten (10) foot wide sanitary sewer easements conveyed by LaBelle Park, LLC, said easements being a 0.124 acre tract out of Southwest Plaza and part of Section 1, Lot 1, Block 1 situated in the C. Williams League, Abstract No. 59 and a 0.714 acre tract out of LaBelle Park, LP situated in the C. Williams League, Abstract No. 59, to the City of Beaumont for the purpose of placing, constructing, operating, repairing, rebuilding, relocating and/or removing sewer lines and appurtenances to facilitate future commercial development; and, WHEREAS, the resolution inadvertently authorized the acceptance of two (2) ten (10)foot wide sanitary sewer easements, rather than two(2)twenty(20)foot wide sanitary sewer easements as was intended; and, WHEREAS, an amendment to Resolution No. 13-051 is required to reflect the acceptance of two (2) twenty (20) foot wide sanitary sewer easements; 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 Resolution No. 13-051 is hereby amended to reflect the acceptance of two (2) twenty(20) foot wide sanitary sewer easements conveyed by LaBelle Park, LLC, said easements being a 0.124 acre tract out of Southwest Plaza and part of Section 1, Lot 1, Block 1 situated in the C. Williams League, Abstract No. 59 and a 0.714 acre tract out of LaBelle Park, LP situated in the C. Williams League, Abstract No. 59, to the City of Beaumont for the purpose of placing, constructing, operating, repairing, rebuilding, relocating and/or removing sewer lines and appurtenances to facilitate future commercial development. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 19th day of March, 2013. - 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: Dr. Joseph Majdalani, City Engineer MEETING DATE: March 19, 2013 REQUESTED ACTION: Council consider a resolution authorizing the City Manager to sign a License Agreement allowing City Forces to install an electric supply line encroaching on Burlington Northern Santa Fe (BNSF) property. BACKGROUND BNSF Railway Company has agreed to install the equipment necessary to provide advanced signal preemption at the signal intersection of South Major Drive and Fannett Road. An electric supply line across BNSF railway property will allow the traffic signal at that location to be operated in conjunction with the railroad crossing signals. The City's cost, along with the required protective liability insurance fees, total $4,060.00. FUNDING SOURCE General Fund. RECOMMENDATION Approval of resolution. Jones Lang LaSalle Brokerage, Inc. ONES LANG 4300 Amon Carter Blvd., Suite 100 LASALLE. Fort Worth,Texas 76155 tel+1817-230-2600,fax+1 817 306-8265 January 16, 2013 Mr. Patrick Donart Tracking no. 12-45433 City of Beaumont,Texas P.O. Box 3827 Beaumont, Texas 77701 Dear Mr. Donart: Attached please find a copy of the requested contract for execution by an official authorized to execute contract agreements on behalf of your company. Please print two (2) copies, execute and return both copies with oriainal signature for completion on part of BNSF Railway Company ("BNSF") to this office, along with the following requirements: A check in the amount of$3,600.00 payable to BNSF Railway Company which covers the contract and processing fee(s). You should have been or will be contacted by BNSF's Risk Management Department. If you have not, and you have any questions regarding any of the insurance requirements, please contact Michael Regan, via email, at michael.regan@bnsf.com. If you have not done so, please email the following insurance documents to BNSF @certfocus.com: 2. A Certificate of Insurance as required in the agreement. 2. A separate policy for Railroad Protective Liability Insurance as required in the agreement (ORIGINAL POLICY MUST BE PROVIDED). BNSF Railway Company will be the only insured party; OR; In lieu of providing a separate policy for Railroad Protective Liability In4prance, you may participate in the BNSF's Railroad Protective Policy by checking the appropriate box in the contract and including an additional $460.00 with your check. "PLEASE ADVISE IF THIS PROJECT IS ARRA FUNDED" Acceptance and deposit of any check by BNSF does not constitute an agreement between BNSF and Licensee for the requested license. BNSF shall not be obligated to hold the check in a separate fund, but may commingle the funds with other funds of BNSF, and in no event shall BNSF be responsible for interest on said funds. The enclosed permit is not a binding agreement and shall become binding only when, and if, it is executed by you and fully approved and executed by BNSF Railway Company. Upon completion on behalf of BNSF, one fully executed counterpart will be returned for your records. The specifications/plans you provided may differ from BNSF's minimum specification requirements. Therefore, prior to your installation, please review the Exhibit A to determine the specifications necessary for your installation. Please be informed that if contracts, fees, and insurance are not returned within sixty (60) days, the processing fee will increase an additional$600.00. Z r��a en Sr. Contra Specialist Attachment Law Department Approved Tracking#12-45433 LICENSE FOR ELECTRIC SUPPLY LINE ACROSS OR ALONG RAILWAY PROPERTY (Electric Light, Power Supply, Irrespective of Voltage, Overhead or Underground) THIS LICENSE ("License"), made as of the day of , 2013, ("Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor"), and CITY OF BEAUMONT,TEXAS, a Texas corporation ("Licensee"). 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, maintain, and use in strict accordance with the drawings and specifications approved by Licensor as part of Licensee's application process ("the Drawings and Specifications") an Pre-Empt wiring electric supply line containing a maximum of one (1) conductors, together with its supporting or containing structures ("Electric Supply Line") across or along the premises of Licensor at or near the station of Beaumont, County of Jefferson, State of Texas, Line Segment 7505, Mile Post 69.66, shown by bold line upon the Drawing No. 1-55028 dated May 31, 2012, marked "Exhibit A", attached hereto and made a part hereof("Premises"). . 2. 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. Licensee shall use the Premises solely for construction, maintenance, and use of an Electric Supply Line in accordance with the Drawings and Specifications. Licensee shall not use the Premises for any other purpose. Licensee shall not use or store hazardous substances, as defined by the Comprehensive Environmental Response, Compensation, and Liability Act, as amended ("CERCLA") or petroleum or oil as defined by applicable Environmental Laws on the Premises. 4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in the Premises, Licensor shall not be liable to refund Licensee any compensation paid hereunder or for any damage Licensee sustains in connection therewith. 5. Any contractors or subcontractors performing work on the Electric Supply Line or, entering the Premises on behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License. TERM 6. This License shall commence on the Effective Date and shall continue for a period of twenty-five (25) years, subject to prior termination as hereinafter described. Form 421;Rev.04/26/05 -1 - Law Department Approved Tracking#12-45433 COMPENSATION 7. (a) Licensee shall pay Licensor, prior to the Effective Date, the sum of Three Thousand and No/100 Dollars ($3000) 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, maintenance, and use of the Electric Supply Line, including but not limited to the furnishing of Licensor's Flagman and any vehicle rental costs incurred. The cost of flagger services provided by the Railway, when deemed necessary by the Railway's representative, will be borne by the Licensee. The estimated cost for one (1) flagger is $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, 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 the Contractor hereunder will be used to calculate the actual costs of flagging pursuant to this paragraph. (c) All invoices are due thirty (30) days after the date of invoice. In the event that Licensee shall fail to pay any monies due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest on such unpaid sum from thirty (30) days after its invoice date to the date of payment by Licensee at an annual rate equal to (i) the greater of (a) for the period January 1 through June 30, the prime rate last published in The Wall Street Joumal in the preceding December plus two and one-half percent (2 1/2%), and for the period July 1 through December 31, the prime rate last published in The Wall Street Joumal in the preceding June plus two and one-half percent (2 1/2%), or (b) twelve percent (12%), or(ii)the maximum rate permitted by law, whichever is less. COMPLIANCE WITH LAWS 8. (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 Electric Supply Line 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 following Internet Website "http://www.contractororientation.com". This training must be completed no more than one year in advance of Licensee's entry on the Premises. Form 421; Rev.04/26/05 -2- Law Department Approved Tracking#12-45433 DEFINITION OF COST AND EXPENSE 9. For the purpose of this License, "cost' or"costs""expense" or"expenses"includes, but is not limited to, actual labor and material costs including all assignable additives, and material and supply costs at current value where used. RIGHT OF LICENSOR TO USE 10. Licensor excepts and reserves the right, 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 (c) to use the Premises in any manner as the 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 11. (a) Licensee shall notify Licensor's Roadmaster at 110 Sunbeam Lane, Lafayette,LA. 70501, telephone (337) 572-2502 or cell phone (209) 487-4635, at least ten (10) business days prior to construction of the Electric Supply Line and prior to entering the Premises for any subsequent maintenance thereon. (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. 12. (a) Licensee shall, at its sole cost and expense, construct and at all times maintain the Electric Supply Line in accordance with the National Electric Code. (b) If the operation or maintenance of said Electric Supply Line shall at any time cause interference, including but not limited to physical interference from electromagnetic induction, electrostatic induction, or from stray or other currents, with the facilities of the Licensor or of any lessee or Licensee of the Licensor, or in any manner interfere with the operation, maintenance, or use by the Licensor of its right-of-way, tracks, structures, pole lines, signal and communication lines, radio, or other equipment, devices, other property or appurtenances thereto, Licensee agrees immediately to make such changes in its Electric Supply Line and fumish such protective devices and/or replacement equipment to Licensor and its lessees or Licensees as shall be necessary, in the judgement of the Licensor's representative, to eliminate such interference. The cost of such protective devices and their installations shall be borne solely by Licensee. If any of the interference covered by this paragraph shall be, in the judgement of the Licensor, or such importance to the safety of the Licensor's operations as to Form 421;Rev.04/26/05 -3- I Law Department Approved Tracking#12-45433 require immediate corrective action, Licensee, upon notice from the Licensor, shall either, at the Licensor's election, cease using said Electric Supply Line for any purpose whatsoever and remove same, or reduce the voltage or load on said Electric Supply Line, or take such other interim protective measures as the Licensor may deem advisable, until the protective devices and/or replacement equipment required by this paragraph have been installed, put in operation, tested, and found to be satisfactory to correct the interference. 13. (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 the Premises unless Licensee has obtained prior written approval from Licensor. 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 ordered to cease using the Premises at any time by Licensor's personnel due to any hazardous condition, Licensee shall immediately do so. 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 License. (b) Licensee shall, at its sole cost and expense, and subject to the supervision of Licensor's Roadmaster, locate, construct and maintain the Electric Supply Line 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 its railroad. Further, the Electric Supply Line shall be constructed, installed and maintained in conformity with the plans and specifications shown on the print attached hereto as Exhibit A and made a part hereof(which, if present, are to be deemed part of the Drawings and Specifications). Licensor may direct one of its field engineers to observe or inspect the construction and/or maintenance of the Electric Supply Line at any time for compliance with the Drawings and Specifications. If ordered at any time to halt construction or maintenance of the Electric Supply Line by Licensor's personnel due to non-compliance with the same or any other hazardous condition, Licensee 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 Electric Supply Line, it being solely Licensee's responsibility to ensure that the Electric Supply Line is constructed in strict accordance with the Drawings and Specifications 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 License. If at any time Licensee shall, in the sole judgment of Licensor, fail to properly perform its obligations under this Section, Licensor may, at its option and at Licensee's sole expense, arrange for the performance of such work as it deems necessary for the safety of its operations and activities. Licensee Form 421;Rev.04/26105 -4- Law Department Approved Tracking#12-45433 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 after the liability allocation hereunder. 14. Licensee shall, at its sole cost and expense, remove all combustible material from around wooden poles and will at all times keep the space around such poles free of such material, and if removal of such combustible material shall not be attended to with fifteen (15) days after having been requested by Licensor to do so, Licensor shall have the right itself to perform the work and Licensee hereby agrees to reimburse Licensor for the expense so incurred. 15. During the construction and any subsequent maintenance performed on Electric Supply Line, 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 the Electric Supply Line shall be completed within one (1) year of the Effective Date. Upon completion of the construction of the Electric Supply Line and after performing any subsequent maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore Licensor's premises to their former state as of the Effective Date of this License. 16. 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 Electric Supply Line, Licensee shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make such changes in the Electric Supply Line as in the sole discretion of Licensor may be necessary to avoid interference with the proposed use of Licensor's rail corridor, including, without limitation, the relocation of the existing or the construction of a new Electric Supply Line. 17. (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 (e.g_, 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 Electric Supply Line, Licensor will provide Licensee any information that Licensor's Engineering Department has in its possession concerning the existence and approximate location of Licensor's underground utilities and pipelines at or near the vicinity of the proposed Electric Supply Line. Prior to conducting any such boring work, the Licensee will review all such material. Licensor does not warrant the accuracy 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 Form 421;Rev.04/26/05 -5- Law Department Approved Tracking#12-45433 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. 18. 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. All excavated materials shall not remain on Licensor's property for more than ten (10) days and shall be properly disposed of by Licensee in accordance with applicable Legal Requirements. 19. Upon termination of this License, Licensee shall, at its sole cost and expense: (a) remove all of its equipment from the Premises; (b) remove the Electric Supply Line at Licensor's sole discretion; (c) report and restore any damage to the Premises arising from, growing out of, or connected with Licensee's use of the Premises; (d) remedy any unsafe conditions on the Premises created or aggravated by Licensee; and (e) leave the Premises in the condition which existed as of the Effective Date of this License. 20. Licensee's on-site supervision shall retain/maintain a fully-executed copy of this License at all times while on the Premises. LIABILITY 21. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND LICENSOR'S AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") 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, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION Form 421; Rev.04/26105 -6- Law Department Approved Tracking#12-45433 OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART): (i) THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS, (ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE, (111) LICENSEE'S OCCUPATION AND USE OF THE PREMISES, (iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR CONTRIBUTED BY LICENSEE, OR (v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS, AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER, EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE. (b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE LIMITATION IN SECTION 21(a), LICENSEE SHALL NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE ELECTRIC SUPPLY LINE FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. LICENSEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. LICENSEE FURTHER AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LICENSE SHALL NOT IN ANY WAY SUBJECT LICENSOR TO CLAIMS THAT LICENSOR IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL LICENSOR BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES. (c) TO THE-FULLEST EXTENT-PERMITTED BY LAW, LICENSEE FURTHER AGREES, 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 Form 421;Rev.04/26/05 -7- Law Department Approved Tracking#1245433 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 OR OTHERWISE. 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 BOILER INSPECTION ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE. (d) Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other proceeding brought against any Indemnitee by any entity, relating to any matter covered by this License for which Licensee has an obligation to assume liability for and/or save and hold harmless any Indemnitee. Licensee shall 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 22. ALL PERSONAL PROPERTY OF LICENSEE, 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. INSURANCE 23. Licensee shall, 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 shall 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 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 shall also contain the following endorsements, which shall be indicated on the certificate of insurance: ♦ It is agreed that any workers' compensation exclusion does not apply to Licensor's payments related to the Federal Employers Liability Act or a Licensor Wage Continuation Program or similar programs and any payments made are deemed not to be either payments made or obligations assumed Form 421;Rev.04/26/05 -8- Law Department Approved Tracking#12-45433 under any Workers Compensation, disability benefits, or unemployment compensation law or similar law. ♦ The definition of insured contract shall 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 shall be removed. No other endorsements limiting coverage may be included on the policy. B. Business Automobile Insurance. This insurance shall 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. This insurance shall include coverage for, but not limited to: ♦ Licensee'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. This insurance shall name only the Licensor as the Insured with coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The coverage obtained under this policy shall only be effective during the initial installation and/or construction of the Electric Supply Line. THE CONSTRUCTION OF THE ELECTRIC SUPPLY LINE SHALL BE COMPLETED WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. If further maintenance of the Electric Supply Line is needed at a later date, an additional Railroad Protective Liability Insurance Policy shall be required. The policy shall 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 Licensor prior to performing any work or services under this Agreement In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance Policy available to Licensee or its contractor. The limits of coverage are the same as above. The cost is$460.00. • I elect to participate in Licensor's Blanket Policy; • I elect not to participate in Licensor's Blanket Policy. Form 421;Rev.04/26/05 -9- Law Department Approved Tracking#12-45433 Other Requirements: Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages and certificates of insurance shall reflect that no exclusion exists. Licensee agrees to waive its right of recovery against Licensor for all claims and suits against Licensor. In addition, its insurers, through policy endorsement, waive their right of subrogation against Licensor for all claims and suits. The certificate of insurance must reflect waiver of subrogation endorsement. Licensee further waives its right of recovery, and its insurers also waive their right of subrogation against Licensor for loss of its owned or leased property or property under its care, custody or control. Licensee's insurance policies through policy endorsement must include wording which states that the policy shall be primary and non-contributing with respect to any insurance carried by Licensor. 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) shall include a severability of interest endorsement and shall name Licensor and Jones Lang LaSalle Brokerage, Inc. as an additional insured with respect to work performed under this agreement. Severability of interest and naming Licensor and Jones Lang LaSalle Brokerage, Inc. as additional insureds shall be indicated on the certificate of insurance. Licensee is not allowed to self-insure without the prior written consent of Licensor. If granted by Licensor, any deductible, self-insured retention or other financial responsibility for claims shall be covered directly by Licensee in lieu of insurance. Any and all Licensor liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by Licensee's insurance will be covered as if Licensee elected not to include a deductible, self-insured retention, or other financial responsibility for claims. Prior to commencing the Work, Licensee shall furnish to Licensor 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) shall contain a provision that obligates the insurance company(ies)issuing such policy(ies)to notify Licensor in writing at least 30 days prior to any cancellation, non-renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of insurance. Upon request from Licensor, a certified duplicate original of any required policy shall be furnished. Any insurance policy shall be written by a reputable insurance company acceptable to Licensor 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. Form 421;Rev.04/26/05 -10- Law Department Approved Tracking#12-45433 Licensee WARRANTS that this License has been thoroughly reviewed by Licensee's insurance agent(s)/broker(s), who have been instructed by Licensee to procure the insurance coverage required by this Agreement. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above. Not more frequently than once every five years, Licensor 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 Licensee, Licensee shall require that the subcontractor shall provide and maintain insurance coverages as set forth herein, naming Licensor as an additional insured, and shall require that the subcontractor shall release, defend and indemnify Licensor to the same extent and under the same terms and conditions as Licensee is required to release, defend and indemnify Licensor herein. Failure to provide evidence as required by this section shall entitle, but not require, Licensor to terminate this License immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Licensee's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by Licensee shall not be deemed to release or diminish the liability of Licensee including, without limitation, liability under the indemnity provisions of this License. Damages recoverable by Licensor shall not be limited by the amount of the required insurance coverage. For purposes of this section, Licensor shall mean "Burlington Northern Santa Fe Corporation", "BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each. ENVIRONMENTAL 24. (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 Licensoe'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 Form 421; Rev.04/26/05 -11 - Law Department Approved Tracking#12-45433 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. (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 Electric supply Line which occurred or may occur during the term of this License, 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 Licensors request for information regarding said conditions or activities. ALTERATIONS 25. Licensee may not make any alterations to the Premises or permanently affix anything to the Premises or any buildings or other structures adjacent to the Premises without Licensors prior written consent. NO WARRANTIES 26. LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS LICENSE 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 LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES 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 27. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PROPERTY NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. DEFAULT 28. If default shall be made in any of the covenants or agreements of Licensee contained in this document, or in case of any assignment or transfer of this License by operation of law, Licensor may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee. Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this License for any subsequent default or Form 421; Rev.04/26/05 -12- Law Department Approved Tracking#12-45433 defaults, nor shall any such waiver in any way affect Licensor's ability to enforce any Section of this License. The remedy set forth in this Section 28 shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity. LIENS AND CHARGES 29. Licensee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Licensee on Premises. Licensor is hereby authorized to post any notices or take any other action upon or with respect to Premises that is or may be permitted by law to prevent the attachment of any such liens to Premises; provided, however, that failure of Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Section 29 or any other Section of this License. Licensee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi-governmental body or any Taxes levied or assessed against Licensor or the Premises that are attributable to the Improvements. TERMINATION 30. This License may be terminated by Licensor, at any time, by serving thirty (30) days' written notice of termination upon Licensee. This License 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 License and all rights of Licensee shall absolutely cease. 31. If Licensee fails to surrender to Licensor the Premises, upon any termination of this License, 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, whether of indemnity or otherwise, resulting from any events happening prior to the date of termination. ASSIGNMENT 32. Neither Licensee, nor the heirs, legal representatives, successors, or assigns of Licensee, nor any subsequent assignee, shall assign or.transfer this License or any interest herein, without the prior written consent and approval of Licensor, which may be withheld in Licensor's sole discretion. NOTICES 33. 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. Form 421;Rev.04/26/05 -13- Law Department Approved Tracking#1245433 If to Licensor: Jones Lang LaSalle Brokerage, Inc. 4300 Amon Carter Blvd., Suite 100 Fort Worth, TX 76155 Attn: Licenses/Permits with a copy to: BNSF Railway Company 2500 Lou Menk Dr.—AOB-3 Fort Worth,TX 76131 Attn: Manager—Land Revenue Management If to Licensee: City of Beaumont, Texas P.O. Box 3827 Beaumont, Texas 77701 SURVIVAL 34. Neither termination nor expiration will release either party from any liability or obligation under this License, 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 Electric Supply Line and improvements are removed and the Premises are restored to its condition as of the Effective Date. RECORDATION 35. It is understood and agreed that this License shall not be placed on public record. APPLICABLE LAW 36. All questions concerning the interpretation or application of provisions of this License shall be decided according to the substantive laws of the state of Texas without regard to conflicts of law provisions. SEVERABILITY 37. To the maximum extent possible, each provision of this License shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this License 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 License. INTEGRATION 38. This License is the full and complete agreement between Licensor and Licensee with respect to all matters relating to Licensee's use of the Premises, and supersedes any and all other agreements between the parties hereto relating to Licensee's use of the Premises. However, nothing herein is intended to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor harmless in any prior written agreement between the parties. Form 421;Rev.04/26/05 -14- Law Department Approved Tracking#12-45433 MISCELLANEOUS 39. In the event that Licensee consists of two or more parties, all the covenants and agreements of Licensee herein contained shall be the joint and several covenants and agreements of such parties. 40. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the right of Licensor to enforce that provision for any subsequent breach thereof. Jones Lang LaSalle Brokerage, Inc. is acting as representative for BNSF Railway Company. IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties hereto as of the day and year first above written. BNSF RAILWAY COMPANY Jones Lang LaSalle Brokerage, Inc., its Attorney in Fact 4300 Amon Carter Blvd., Suite 100 Fort Worth, TX 76155 By: Ed Darter Title: Vice President-National Accounts CITY OF BEAUMONT,TEXAS P.O. Box 3827 Beaumont, Texas 77701 By: Title: Form 421; Rev.04/26/05 -15- TRACKING NO. 12-45433 EXHIBIT "A" ATTACHED TO CONTRACT BETWEEN BNSF RAILWAY COMPANY cn AND ° a CITY OF BEAUMONT, TEXAS `A USF R SECTION: - rTX-61 SCALE: 1 IN.= 1 00 FT. TOWNSHIP: - a G ILF DIV. RANGE: 12 SILSBEE SUBDIV. L.S. 7505 MERIDIAN: - DATE 05/31/2012 Nq 3 PROPERTY LWE � TO BEAUMONT_ Pd 6 r TO FANNETT �- Io PROPERTY UNE N r + } .68 28.07 r r r NOTE., 1 CONDUIT OCCUPIED DESCRIPTION OF WIRES UNDER TRACK WIRES LOCATED AS SHOWN BOLD TYPE PRE-EMPT WIRING SIZE OF CONDUIT 2"X30' NUMBER OF CONDUITS 1 CONDUIT MATERIAL HDPE VOLTAGE - WALL THICKNESS .216" LENGTH ON R/W 30' NOTE: CASING TO BE JACKED OR DRY BORED ONLY BASE OF RAIL TO TOP OF CONDUIT - AT BEAUMONT COUNTY OF JEFFERSON STATE OF TX DES DRAWING NO. 1-55028 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 License Agreement with BNSF Railway Company for the installation of advanced preemption at the signal intersection of South Major Drive and Fannett Road. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 19th day March, 2013. - Mayor Becky Ames - E RICH WITH OPPORTUNITY [IEAUMON* T • E • x a A • s City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Dr. Joseph Majdalani, City Engineer MEETING DATE: March 19, 2013 REQUESTED ACTION: Council consider a resolution approving an amendment to an Agreement with Network USA, LLC, for placement of additional fiber optic cable in the public right-of-way. BACKGROUND The majority of Network USA's cable routing within the City is located on the public right-of-way in the downtown area for a distance of 6,597 linear feet. The proposed amendment will add an additional 11,000 linear feet set out in the Original and First Amendment Agreement.Network USA, LLC will have a total of 17,597 linear feet of fiber optic cable within the City of Beaumont. Network USA will pay the City an application fee of$500.00, an inspection fee of$500.00 and an annual fee of$1.75 per linear feet per year. FUNDING SOURCE Not applicable. RECOMMENDATION Approval of resolution. I RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Council hereby approves an addendum to the Network USA, LLC agreement, substantially in the form attached hereto as Exhibit"A"and made a part hereof for all purposes, for the placement of fiber optic cable in the public right-of-way. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 19th day of March, 2013. - Mayor Becky Ames - SECOND AMENDMENT PUBLIC RIGHT-OF-WAY USE AGREEMENT THE STATE OF TEXAS § COUNTY OF JEFFERSON § WHEREAS,Network USA,LLC,and the City of Beaumont("City"), collectively referred to as the"Parties,"executed a Public Right-of-Way Use Agreement on September 20,2005;which was amended, in part,on November 18,2010;and WHEREAS,the Parties desire to amend the original agreement and the First Amendment Public Right-of-Way Agreement, but only as noted below; NOW,THEREFOR: The Parties, for and in consideration of the receipt of good and valuable consideration, as set out more fully herein,agree to amend that certain Agreement executed by the Parties on September 20,2005,entitled"Public Right-of-Way"and First Amended Public Right-Of-Way Use Agreement(herein after"First Amendment") as follows: (a) Network USA,LLC, may lay,maintain,operate, replace or remove a fiber optic communication system(the"System")for the transportation of communications in, on,under,or across the streets,alleyways and easements as set forth in Exhibit "A" and situated in the City of Beaumont,Jefferson County,Texas. (b) The map attached hereto as Exhibit "A" includes an additional 11,000 feet of fiber optic cable more than the 6,597 feet set out in the Parties' original and First Amendment Agreement.After the foregoing additional cable is laid,Network USA, LLC,will have a total of 17,597 feet of fiber optic cable within the City of Beaumont. (c) The current annual fee per linear foot of fiber optic cable in the City right-of-way is $1.75 and shall apply to this agreement. All future annual payments shall be due and payable to the City of Beaumont on January 1 of each succeeding year. (d) Upon execution of this Agreement,Network USA,LLC,shall make payment to the City of Beaumont as follows: • additional annual fee for the year of 2013 of$19,250;and • additional_agreement fee of$500.00;and • inspection,engineering and other costs during the period of initial construction called for by this Agreement in the amount of$500.00. 1 EXHIBIT "A" (e) All provisans of the original Right-of-Way Agreement executed by the parties on September 30,2005 and First Amandum t on November 18,2010,shall remain the some and are in full force and effect. IN WITNESS WHEREOF,the City of Beaumont,Texas,has caused these present to be signed by its City Manager and the seal ofthe City to be herewith affixed by the City Clerk this the day of 2013.Further,Network USA,LLC,has caused this Agreement to be executed by its President,James R. Davis. THE CITY OF BEAUMONT NETWORK USA, LLC By: BY Kyle Hayes,City Manager Tames R,Davis,President ATTEST: ATT� r City Clerk 2 F kz's D• • _.._... _ y • - 4a. I ! _° �Vie.;$_ •.�, ..., ? apiiµ'4. e t -t t � t Sot Ift Proposed Route y„ depth by directional bore. Place within limits of public ROW RM fT 4 _ Z M, ::. j - so - Exisbrig _ ,. • Handhole Network USA Proposed Fiber Route r.. 4 Beaumont, NETWORK • • • Overview Sh RICH WIT$ OPPORTUNITY BEAUMON* T • E • x • A • S City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Dr. Joseph Majdalani, City Engineer MEETING DATE: March 19, 2013 REQUESTED ACTION: Council consider a resolution accepting maintenance of the street, storm sewer,water and sanitary sewer improvements in LaBelle Park Subdivision Phase One. RECOMMENDATION The administration recommends approval of the following: • Rexora Drive approximately 1166 feet extension northeast of existing Rexora Drive to OM-4P Dead End Roadway Markers. • Phelps Boulevard approximately 455 feet north of IH-10 West bound Service Road to OM-4P Dead End Roadway Markers. Also, recommended for approval are the storm sewer, water and sanitary sewer improvements for LaBelle Park Subdivision Phase One right-of-way only. BACKGROUND The aforementioned improvements in the subdivision passed final inspection from all entities involved on March 14, 2013. BUDGETARYIMPACT None. RESOLUTION NO. WHEREAS, construction of the streets, storm sewer, water and sanitary sewer improvements constructed in LaBelle Park Subdivision- Phase I have been completed as follows: Streets • Rexora Drive approximately 1,166 feet extension northeast of existing Rexora Drive to OM-4P Dead End Roadway Markers. • Phelps Boulevard approximately 455 feet north of IH-10 westbound Service Road to OM-4P Dead End Roadway Markers. Storm Sewer, Water and Sanitary Sewer Improvements • LaBelle Park Subdivision - Phase I, right-of-way only. and, WHEREAS, the developers of said streets desire to have these improvements accepted and maintained by the City; and, WHEREAS, the director of the Public Works and Engineering Department has determined that said improvements meet city standards and qualify for acceptance for permanent maintenance, and the City Council is of the opinion that said improvements should be accepted and maintained by the City of Beaumont; 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 above-referenced street, storm sewer, water and sanitary sewer improvements in LaBelle Park Subdivision- Phase I, with the exception of streetlights, are hereby accepted by the City of Beaumont and shall be continuously maintained by the City contingent upon filing of the final plat, complete with filings of dedication of all rights-of-way and easements required on the preliminary and final plats and installation of the streetlights. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 19th day of March, 2013. - Mayor Becky Ames - RICO !IT■ OPPORTUNITY BEAUMONW T o Z o X o A • 8 REGULAR MEETING OF THE CITY COUNCIL COUNCIL CHAMBERS MARCH 19,2013 1:30 P.M. AGENDA CALL TO ORDER * Invocation Pledge Roll Call * Presentations and Recognition * Public Comment: Persons may speak on scheduled agenda items 1-2/Consent Agenda * Consent Agenda GENERAL BUSINESS 1. Consider an ordinance amending Ordinance 13-006 to change two Election Day polling locations for Precincts 19 and 67, and changing the name of one polling location for Precincts 87, 88 and 99 2. Consider a resolution approving the purchase of a pneumatic roller for use by the Streets and Drainage Division COMMENTS * Councilmembers/City Manager comment on various matters * Public Comment(Persons are limited to 3 minutes) 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 March 19,2013 Consider an ordinance amending Ordinance 13-006 to change two Election Day polling locations for Precincts 19 and 67, and changing the name of one polling location for Precincts 87, 88 and 99 RICH WITH OPPORTUNITY REAIIMON* T • E • X • A • S City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tina Broussard, City Clerk, TRMC MEETING DATE: March 19, 2013 REQUESTED ACTION: Council consider an ordinance amending Ordinance 13-006 to change two (2)Election Day polling locations for Precincts 19 and 67, and changing the name of one (1) polling location for Precincts 87, 88 and 99. BACKGROUND Council approved Ordinance 13-006 on January 29, 2013, to call the May 11, 2013, General Election to order. The previously approved Election Day polling location for Precinct 19 was the BISD Admin. Annex located at 1025 Woodrow Street which is now being used as a Police sub-station. Precinct 67 was previously located at Alice Keith Recreation Center, 4075 Highland Avenue. The Jefferson County Clerk moved both of these polling locations in the November election held by the County to South Park Middle School. As not to confuse the voters of the City of Beaumont,it would be convenient to move both precincts to the same location. Also,the name of the polling location for Precincts 87, 88 and 99 has changed from Pine Burr Baptist Church to Solid Rock Community Church. The revised Election Day polling location for Precincts 19 and 67 will be as follows: Pct. 19, 67 South Park Middle School 4500 Highland Ave. Beaumont, TX 77706 The revised name change for Election Day polling location for Precincts 87, 88 and 99 will be as follows: Pct. 87, 88 & 99 Solid Rock Community Church 5095 Pine Burr Blvd. Beaumont, TX 77705 FUNDING SOURCE This additional location will not impact the City of Beaumont's cost for their portion of the election. RECOMMENDATION Approval of Ordinance. ORDINANCE NO. ENTITLED AN ORDINANCE AMENDING ORDINANCE NO. 13- 006 TO PROVIDE A CHANGE IN LOCATION FOR TWO (2) ELECTION DAY POLLING LOCATIONS FOR PRECINCTS 19 AND 67 FOR THE ELECTION TO BE HELD THE 11TH OF MAY, 2013. WHEREAS, on January 29, 2013,the City Council approved Ordinance No. 13-006 providing for a general election to be held on the 11th of May, 2013 for the purpose of electing a Mayor, four (4) Ward Councilmembers (Wards I, II, III and IV) and two (2) Councilmembers-At-Large, designating polling places and appointing election official for such election, providing the form of the ballot at such election, directing the giving of notice of such election, providing for a joint election with the Beaumont Independent School District and Port of Beaumont, and containing other provisions relating to the subject; and, WHEREAS, on February 12,2013,the City Council approved Ordinance No. 13-009 to add an early voting branch location within the geographic boundaries of the proposed EMS Dist. #4 at the Jefferson County J.P. Pct. 4 Building, 19217 FM 365, Beaumont, Texas 77705 and same shall be available for early voting for all elections; and, WHEREAS, Precinct 19 polling location was previously the BISD Admin Annex located at 1025 Woodrow Street, Beaumont, Texas, which is now being used as a Police sub-station; and, WHEREAS, Precinct 67 polling location was previously Alice Keith Recreation Center located at 4075 Highland Avenue, Beaumont, Texas; and, WHEREAS, the Jefferson County Clerk moved both of these polling locations to South Park Middle School in the November election held by the County; and, WHEREAS, an amendment to Ordinance No. 13-006 is required to change these two(2) Election Day polling locations from the BISD Admin.Annex, 1025 Woodrow Street, Beaumont, Texas and Alice Keith Recreation Center, 4075 Highland Avenue, Beaumont, Texas,to South Park Middle School,4500 Highland Avenue, Beaumont, Texas 77706 and shall be available to all voters for all elections, as shown on Exhibit "A," attached hereto and made a part hereof for all purposes; and, WHEREAS, the name of the polling locations for precincts 87, 88 and 89 has been changed from Pine Burr Baptist Church to Solid Rock Community Church, 5095 Pine Burr Boulevard, Beaumont, Texas 77706; NOW, THEREFORE, BE IT ORDAINED 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 Ordinance No. 13-006 is hereby only amended to change two (2) Election Day polling locations from BISD Admin. Annex, 1025 Woodrow Street, Beaumont, Texas and Alice Keith Recreation Center, 4075 Highland Avenue, Beaumont, Texas, to South Park Middle School, 4500 Highland Avenue, Beaumont, Texas 77706 and shall be available to all voters for all elections, as shown on Exhibit"A,"attached hereto and made a part hereof for all purposes; and, BE IT FURTHER ORDAINED THAT Ordinance No. 13-006 is also amended to reflect the name change for the Election Day polling location for precincts 87, 88 and 89 from Pine Burr Baptist Church to Solid Rock Community Church, 5095 Pine Burr Boulevard, Beaumont, Texas 77705; and, BE IT ALSO ORDAINED THAT otherwise, this ordinance does not amend Ordinance No. 13-006 and same shall remain in full force and effect. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 19th day of March, 2013. - Mayor Becky Ames - EXHIBIT "A" - 2013 GENERAL ELECTION ORDINANCE PRECINCT/BISD POLLING LOCATION JUDGE ALTERNATE /PORT 001/002 Dr. Mae Jones-Clark Elem. Thelma Fielder Joyce Franklin 3525 Cleveland Ave. Beaumont,TX 77703 003/008 Sterling Pruitt Center William Bostic Jed Dollinger 2930 Gulf St. Beaumont,TX 77703 004 BISD Admin. Building Dr. Bruce Drury Harold Steward 3395 Harrison Avenue Beaumont,TX 77703 005 Caldwood Elementary Ray Nelson Mary Simmons 102 Berkshire Ln. Beaumont, TX 77707 006 Central High School Celeste Johnson Judy Richardson 88 Jaguar Beaumont,TX 77702 007189 O.C. "Mike"Taylor Career Rebecca Iles Ellen MclNtosh Center 2330 North Street Beaumont,TX 77702 008/(See 003) Sterling Pruitt Center William Bostic Jed Dollinger 2930 Gulf St. Beaumont,TX 77703 010/011 Jefferson County Court Rose 0. Solomon Laquita Mitchell House 1050 Ewing Beaumont,TX 77701 012/013 Charlton Pollard E.S. Connie Patterson Brand! Lewis 825 Jackson Beaumont,TX 77701 0141015/016 MLK Middle School Kimberly Lewis Harold Lewis 1400 Avenue A Beaumont, TX 77701 017/026/090 Bmt. Municipal Airport Barbara Shipper Rebecca Moreira 455 Keith Rd., Hwy 90 Beaumont,TX 77713 018/064 Theodore Johns Library Margaret Bostic Leroy Bostic 4225 Fannett Rd. Beaumont,TX 77705 EXHIBIT "A" 0191067 South Park Middle School Willmeretta Lowe Sonya Pickens 4500 Highland Ave. Beaumont,TX 77706 020/075 Alice Keith Rec. Center Vacant Vacant 4075 Highland Ave. Beaumont, TX 77705 021 Precinct 4 Barn Vacant Vacant 2202 Hebert Rd. Beaumont,TX 77706 022 Roy Guess Elementary Janet Dietz Gladys O'Brien 8055 Old Voth Rd. Beaumont,TX 77713 023 Rosedale Baptist Church James Boykin Karlene Boykin 7110 Concord Beaumont,TX 77708 026(See 017,090) Bmt. Municipal Airport Barbara Shipper Rebecca Moreira 455 Keith Rd., Hwy 90 Beaumont, TX 77713 027/0781086 Vincent Middle School Jon Tritsch Theresa Hefner-Babb 350 Eldridge Beaumont,TX 77707 039 Blanchette Middle School Samuel Peterson Maudry Plummer 2550 Sarah Beaumont,TX 77705 062(See 073) Marshall Middle School Wanda Pumphrey Doris Campbell 6455 Gladys Beaumont,TX 77706 063 Lucas Elementary School Thelma Noble Juanita Walker 1750 E. Lucas Dr. Beaumont,TX 77703 064(See 018) Theodore Johns Library Margaret Bostic Leroy Bostic 4225 Fannett Rd. Beaumont,TX 77705 065,100 Rogers Park C. C. Linda McClung Mary Grimes 1455 Dowlen Rd. Beaumont,TX 77706 067(See 019) South Park Middle School Wiimeretta Lowe Sonya Pickens 4500 Highland Beaumont,TX 77706 068 Austin Middle School Helen W. Stone Paula Sadler 3410 Austin Beaumont,TX 77706 072 Wesley United Methodist Cindy Grimes Anna Delano 3810 N. Major Dr. Beaumont,TX 77713 073 (see 062) Marshall Middle School Wanda Pumphrey Doris Campbell 6455 Gladys Beaumont,TX 77706 075(see 020) Alice Keith Rec. Center Wilmeretta Lowe Sonya Pickens 4075 Highland Beaumont,TX 77705 077 North End Comm. Center Bessie Williams Mary Doyle 3580 E. Lucas Beaumont,TX 77708 078 (See 027/086) Vincent Middle School John Tritsch Theresa Hefner-Babb 350 Eldridge Beaumont,TX 77707 079 Dishman Elementary Bob Bearb Beth Ann Mistrot 3475 Champions Dr. Beaumont,TX 77707 0841085 USW Union Hall Dora Nisby Alexander Simmons 2490 S. 11 th St. Beaumont,TX 77701 086(See 027/078) Vincent Middle School John Tritsch Theresa Hefner-Babb 350 Eldridge Beaumont,TX 77707 087/088/099 Solid Rock Comm. Church Sherrie Fitzgerald Edna Collins 5095 Pine Burr Blvd. Beaumont,TX 77708 089 (See 007) O.C. Mike Taylor Career Rebecca Iles Ellen McIntosh 2330 North St. Beaumont,TX 77702 090(See 017/026) Bmt. Municipal Airport Barbara Shipper Rebecca Moreira 455 Keith Rd., Hwy 90 Beaumont,TX 77713 092 Precinct 4 Service Center Vacant Vacant 7780 Boyt Rd. Beaumont,TX 77706 094 Calvary Baptist Church Marie Clark Christine Gavrelos 3650 Dowlen Rd. Beaumont,TX 77706 100(See 065) Rogers Park C. C. Linda McClung Mary Grimes 6540 Gladys Beaumont,TX 77707 Early Voting Jefferson County Court Sandra Moore Autumn Mitchell (Main) House 1149 Pearl St. Beaumont,TX 77701 Early Voting BISD Admin Building Helen Stone Paula Sadler (Branch) 4495 Harrison Ave. Beaumont,TX 77706 Early Voting Rogers Park C. C. Jane Walker Bob Bearb (Branch) 1455 Dowlen Rd. Beaumont, TX 77706 Early Voting North End C. C. Thelma Fielder Joyce Franklin (Branch) 3580 E. Lucas Beaumont,TX 77703 Early Voting Theodore Johns Library Carolyn Prudhomme Kerry Ehrensberger (Branch) 4255 Fannett Rd. Beaumont,TX 77701 Early Voting Jefferson Co.J.P. Vacant Vacant (Branch) Pct.4 Bldg 19217 FM 365 Beaumont,TX 77701 2 March 19,2013 Consider a resolution approving the purchase of a pneumatic roller for use by the Streets and Drainage Division RICH WITH OPPORTUNITY REONTOC 11EAUm T • E • x • A • s City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Laura Clark, Chief Financial Office MEETING DATE: March 19, 2013 REQUESTED ACTION: Council consider a resolution approving the purchase of a pneumatic roller from Waukesha-Pearce Industries, Inc. of Port Arthur in the amount of$61,431.45 for use by the Streets and Drainage Division. BACKGROUND The pneumatic roller will be used in the street rehabilitation process to compact base material and asphalt, an essential function in the paving process. The unit to be replaced is a 1980 model which has become unreliable and expensive to repair and maintain. The old unit will be disposed of according to the City's surplus property disposal policies. Pricing for the equipment was obtained through BuyBoard, a cooperative purchasing association providing cities and political subdivisions with the means to purchase specialized equipment at volume pricing. BuyBoard complies with State of Texas procurement statutes. Manufacturer's warranty for the pneumatic roller is one year or 1,000 hours. Warranty service is available from the local dealer. Delivery is expected in approximately forty-five (45) days. FUNDING SOURCE Capital Reserve Fund. RECOMMENDATION Approval of the resolution. RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Council hereby approves the purchase of a pneumatic roller for use by the Streets and Drainage Division from Waukesha-Pearce Industries, Inc., of Port Arthur, Texas, in the amount of $61,431.45 through the BuyBoard Cooperative Purchasing Program. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 19th day of March, 2013. - Mayor Becky Ames -