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HomeMy WebLinkAboutO-2008-3061 agreement to provide construction and administrative services for the Sylvan Beach Shoreline Protection B REQUEST FOR CITY COUNCIL AGENDA ITEM Ageada Date Requested: Jan Requested By: Aooropriation 001 General Fund Source of Funds: 002 Special Revenue Fund Department: Acc't Number. Report: _Resolution: _ Ordiuance: X Amount Budgeted: Exhibits: CEPRA Special Document SD208ooo2 Amount Requested: $1,125,172 Exhibits: TGLO Project Cooperation A2reement Budtweted Item: YES NO X SUMMARY &RECOMMENDAftON The City of La Porte has received a grant from the Texas General Land Office (TGLO) to partially fund the Sylvan Beach Shoreline Protection and Beach Nourishment Project through the Coastal Erosion Planning and Response Act (CEPRA). The project is expected to cost $2,525,172, with the TGLO paying $1,400,000 or 55% of the project, and the City of La Porte paying $1,125,172, or 45% percent of the total estimated cost of the project. Harris County has agreed in principle, to pay one.half of the cost of the City's share of the project, amounting to $562,586, with the City's share also being $562,186. This agreement is solely between the TGLO and the City of La Porte as the Qualified Project Partner for the project. Harris County will provide its share of the funding through its FY2oo8 budget process. City Council will be asked to approve an Interlocal Agreement with Harris County for its share of the funding shortly. The City of La Porte's share of funding will be accomplished through several funds and sources that are available. Funds have been allocated from the HotellMotel Fund in the amount of $120,600 for this project. In addition, there are $111,397 available in the Sylvan Beach Pier excess revenue accrn.mt that is earmarked for Sylvan Beach Park improvements, that can be added for a total connnitted funding of $231,997. The remainder of the City's share in the amount of $330,189 win be taken from Special Revnue Funds. Any costs exceeding the estimated budget for this project will require an amendment to this agreement with the TGLO. Staff reconnnends approval of the agreement to protect the Sylvan Beach Park shoreline from future deterioration and to restore the historic beach to Sylvan Beach This project will have a tremendous positive recreational as well as economic impact on our city. Action Reouired bv Council: Co' royal of: AN ORDINANCE APPROVING AND AUTHORIZING A PROJECT COOPERATION REE BETWEEN THE CITY OF LA PORTE AND THE TEXAS GENERAL LAND OFFICE TO ROVIDE ONSTRUCTION, CONSTRUCTION MONITORING, AND ADMINISTRATIVE SERVICES FOR THE SYLVAN EACH SHORELINE PROTECTION AND BEACH NOURISHMENT PROJECT ACCORDING TO THE T S THE AG EMENT PROVIDED. Iln;t9 Date ORDINANCE NO. 2008-&1 AN ORDINANCE APPROVING AND AUTHORIZING A PROJECT COOPERATION AGREEMENT BETWEEN THE CITY OF LA PORTE AND THE TEXAS GENERAL LAND OFFICE TO PROVIDE CONSTRUCTION, CONSTRUCTION SERVICES, AND ADMINISTRATIVE SERVICES FOR THE SYLVAN BEACH SHORELINE PROTECTION AND BEACH NOURISHMENT PROJECT ACCORDING TO THE TERMS OF THE AGREEMENT PROVIDED; APPROPRIATING $1,125,172 TO FUND SAID AGREEMENT; MAKING VARIOUS FINDINGS AND PROVISIONS RELATING TO THE SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; PROVIDING AN EFFECTIVE DATE HEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE: Section 1. The City Council hereby approves and authorizes the contract, agreement, or other undertaking described in the title of this ordinance, a copy of which is on file in the office of the City Secretary. The City Manager is hereby authorized to execute such document and all related documents on behalf ofthe City of La Porte. The City Secretary is hereby authorized to attest to all such signatures and to affix the seal ofthe City to all such documents. The City Council appropriates the sum not to exceed $1,125,172 for the project identified herein, from the 001 General Fund and 002 Special Revenue Fund, to fund the City's share of said Agreement. Section 2. The City Council officially finds, determines, recites, and declares that a sufficient written notice ofthe date, hour, place, and subject ofthis meeting ofthe City Council was posted at a place convenient to the public at the City Hall of the City for the time required by law preceding this meeting, as required by the Open Meetings Law, Chapter 551, Texas Government Code; and that this meeting has been open to the public as required by law at all times during which this ordinance and the subject matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves, and confirms such written notice and the contents and posting thereof. Page 1 of2 Section 3. This Ordinance shall be effective from and after its passage and approval> and it is so ordered. PASSED AND APPROVED, this 28m day of JANUARY 2008. CITY OF LA PORTE ~LY~ By: Alton E. Porter, Mayor ATTEST: LfrJlfUj~ Martha Gillett, City Secretary APPROVED AS TO FORM: U/d r MA~~ Clark T. Askins, Assistant City Attorney Page 2 of2 We are dedicated to the provision and management of superior parks and recreational facilities, innovative programs, and services which will provide our customers with pleasure and enrichment. Parks & Recreation Department January 29, 2008 Established 1892 Ms. Judy Coover, Senior Contract Specialist Texas General Land Office Legal Services Division - Mail Code 158 P.O. Box 12873 Austin, 1)( 78701-1495 Re: Letter of Transferral Texas General Land Office Contract No. 08-090-000 Dear Ms. Coover: Enclosed, please find the executed documents approving the above referenced contract and Special Document for the City of La Porte, as well as the approving Ordinance No..j2008-3061, approved January 28, 2008. As you indicated in your letter to me, please return a copy after the execution process is complete. We are really excited about seeing this project come to fruition. If there are questions or if I can be of further assistance, please do not hesitate to contact me at 281.470.5136 or by email at barrs@ci.la-porte.tx.us. c: Dennis Rocha, Project Administrator Page 1 of 1 1322 South Broadway La Porte, Texas 77571 Telephone: (281) 470-7275 Facsimile: (281) 470-1361 parksandrec@cUa-porte.tx.us 71["1 TE~" '-!yv,\ 'S .;, 1 ~d .:.:i\.. ~l ;'S\.. ~~,} (~ fil\T R it? /~ JI: '...# jL~l ,\"''1 lL'd Jl'\. A. "\\ .... ..A JI. r\ N [''\ J. OMd ,i";~A .f~ .. uj) {) JF JFJI {~~ JEi JERRY PATTERSON, COM.MISSIONER February 4,2008 Mr. Stephen L. Barr Parks and Recreation Department City of La Porte 604 W. Fairmont Parkway La Porte, TX 77571-6215 RE: General Land Office Contract No. 08-090-000 Dear Mr. Barr: Enclosed for your files is one fully executed, originally signed Contract, along with the applicable Special Document, between the City of La Porte and the General Land Office, as referenced above. If you have any questions, please do not hesitate to contact me at (512) 475-2225, or via electronic mail at judy.coover@glo.state.tx.us. Sincerely, J dy Coover - Sr. Contract Specialist egal Services Division JC/jc enclosures Judy Coover - Senior Contract Specialist Texas General Land Office Legal Services Division - Mail Code 158 PO BOX 12873 Austin, TX 78711-2873 or 1700 N. Congress Ave. - Mail Code 158 Austin, TX 78701 Stephen F. Austin Building' 1700 North Congress Avenue' Austin, Texas 78701-1495 Post Office Box 12873 . Austin, Texas 7871J-2873 512-463-5001' 800-998-4GLO ,,,,,,'\V.glo.state. tx. us The State of Texas AUSTIN, TEXAS SPECIAL DOCUMENT NO. SD 20080002 COASTAL EROSION PLANNING AND RESPONSE ACT ST ATE OF TEXAS ~ ~ ~ KNOW ALL MEN BY THESE PRESENTS: COUNTIES OF TRAVIS and HARRIS This Special Document memorializes the agreement ("Agreement"), made and entered by virtue of the authority granted in Section 33.601, et seq., TEX. NAT. RES. CODE ANN., 31 TEX. ADMIN. CODE ~ 15 (Coastal Erosion Planning and Response), et seq., and all other applicable statutes and rules, as the same may be amended from time to time, and is subject to all applicable regulations promulgated from time to time. ARTICLE I. PARTIES AND PURPOSE 1.01. In consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the STATE OF TEXAS, acting by and through the Commissioner of the Texas General Land Office, on behalf of the Permanent School Fund (the "State"), hereby grants to the City of La Porte, Texas, whose address is 604 W. Fairmont Parkway, La Porte, Texas 77571-6215 ("User"), the right to use the surface estate of certain Permanent School Fund land (the" Premises") for the purposes identified in Article N below. 1.02. The General Land Office and User entered into a Project Cooperation Agreement, denominated as GLO Contract No. 08-090-000, ("PCA"), for a coastal erosion response project ("Project" or "Improvements"), pursuant to the "The Coastal Erosion Planning and Response Act, codified as Texas Natural Resource Code, Chapter 33, Subchapter H, and the regulations set forth in Texas Administrative Code, Title 31, Chap. 15, Subchapter B (Coastal Erosion Planning and Response). A copy of the PCA is attached hereto as Exhibit A and incorporated herein by this reference. The terms and Conditions of this Agreement are in addition to, and an extension of, the PCA, solely for the purpose of authorizing the construction of the Project and documenting the right of User to access the Premises after completion of the coastal erosion response Project created pursuant to the PCA in order to conduct required and necessary maintenance of the subject Project for a ten (10) year period. ARTICLE II. PREMISES 2.01. The Premises consists of approximately ten thousand (10,000) square feet of state-owned submerged land located in State Tracts 123 and 213, and more fully described in Paragraph 1.01 of the PCA, which description is incorporated herein by reference; and depicted on Attachment A thereof. Special Document 20080002 - 5 pages . . . . . . ... . - -.. ... .. ... .. . .. . .... . 2.02. USER HAS INSPECTED THE PHYSICAL AND TOPOGRAPHIC CONDITION OF THE PREMISES AND ACCEPTS SAME "AS IS" IN ITS EXISTING PHYSICAL AND TOPOGRAPHIC CONDITION. USER IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF THE STATE REGARDING ANY ASPECT OF THE PREMISES, BUT IS RELYING ON USER'S OWN INSPECTION OF THE PREMISES. THE STATE DISCLAIMS ANY AND ALL WARRANTIES OF HABITABILITY, MERCHANTABILITY, SUITABILITY, FITNESS FOR ANY PURPOSE, AND ANY OTHER WARRANTY WHATSOEVER NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. THE STATE AND USER HEREBY AGREE AND ACKNOWLEDGE THAT THE USE OF THE TERMS "GRANT" AND/OR "CONVEY" IN NO WAY IMPLIES THAT THIS AGREEMENT OR THE PREMISES ARE FREE OF LIENS, ENCUMBRANCES AND/OR PRIOR RIGHTS. USER IS HEREBY PUT ON NOTICE THAT ANY PRIOR GRANT AND/OR ENCUMBRANCES MAYBE OF RECORD AND USER IS ADVISED TO EXAMINE ALL RECORDS OF THE STATE AND COUNTY IN WHICH THE PREMISES IS LOCATED. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. ARTICLE Ill. TERM 3.01. This Agreement shall continue for a term often (10) years from the effective date of the PCA, unless renewed or earlier terminated for any reason by the State, in its sole discretion. ARTICLE IV. USE OF THE PREMISES 4.01. The Premises shall be used solely for the continued maintenance of the coastal erosion response project created by the PCA and for no other purpose. The Premises are to remain in their current topographical and hydrologic condition, unless the modification is pursuant to and in accordance with the terms of the PCA. User is specifically prohibited from modifying the Premises in any manner not authorized herein, and from using, or allowing the use by others of the Premises for any other purpose. 4.02. The State reserves the exclusive right to grant easements, rights-of way and/or other grants of interest authorizing use of the Premises. User shall permit the State's agents, representatives, and employees to enter into and on the Premises at all reasonable times for the purpose of inspection and any other reasonable purpose necessary to protect the State's interest in the Premises. 4.03. The following conditions shall apply to the use of the Premises during the term of this Agreement ("Conditions") : (A) Upon completion of construction, User shall submit to the Upper Coast GLO Field Office at La Porte, Texas, ("Field Office") verification that the Project was constructed as authorized. The Field Office, in coordination with CEPRA or GLO Coastal Resources staff, shall conduct an inspection of the Project to confirm its completion and to verifY compliance with PCA requirements. User will be notified and required to correct any non-compliant features of the Project. (B) User shall perform required and necessary maintenance of the Project and shall submit annual reports to the Field Office, verifYing the Project is being maintained. The Field Office, in coordination with CEPRA staff, may determine at any time that monitoring and maintenance of the Project is no longer necessary and may recommend that this Agreement be terminated. (C) If the Field Office, in coordination with CEPRA or GLO Coastal Resources staff, determines that the Project is not being maintained as required or as needed, the User will be notified and Special Document 20080002 - 5 pages . . . . .. . . - a. aaa a -a a ... . a .. a required to correct the issue or to remove the Project and restore the site to pre-Project conditions if the non-compliant condition cannot be remedied or repaired. (D) If there is any unforeseen significant adverse impact caused by the Project, the User may be required to remove the Project and to restore the site to pre-project conditions if the non- compliant impact cannot be remedied or repaired. (E) If the Project remains in place at the end of the term of this Agreement, the term and maintenance requirement may be extended for an additional ten (10) year term, ifnecessary. (F) If User shall be responsible for the removal of the Improvements pursuant to the foregoing terms or, if the Improvements should fail or cease to fulfill the purposes of the Project, User shall restore the Premises to their pre-Project condition and configuration at User's cost. (1) To assure adequate funding for removal of the Improvements and restoration of the Premises, prior to initiating construction of any Improvements related to or necessary for the Project, the User shall deposit with the State a removal deposit. At the User's option, the removal deposit may be: (a) A bond (from an issuer with an A.M. Best's Rating of not less than A); (b) An irrevocable letter of credit from a bank; (c) A cash deposit; or (d) Any other form of security that may be mutually agreed upon by the parties. (2) The removal deposit shall be an amount sufficient to cover the estimated cost of removal of the Improvements and the restoration of the Premises. The User, with approval from the State, shall determine the removal deposit amount based on the type and quantity of Improvements the User intends to install according to the project plan. (3) The State reserves the right, at any time, to review the removal deposit, ascertain the adequacy thereof, and require any necessary adjustment to the amount of the removal deposit, such that the removal deposit continues to cover the costs of restoration and removal of the Improvements. (4) Failure to (i) obtain approval of the required removal deposit, (ii) post the required removal deposit prior to construction of the Improvements, or (iii), increase the removal deposit within ninety (90) days of receipt of notice by the State in the event an adjustment in the removal deposit is required may be construed as an Event of Default. (5) If State determines that the Improvements must be removed, or in case of default or termination, and the User fails to remove the Improvements according to the terms of this Lease, the State may use the removal deposit to fund the restoration costs and the actual and reasonable costs of removal of such Improvements. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK Special Document 20080002 - 5 pages . . .. . .. .. ... . - . '" ...... .. .. ... .. ARTICLE V. ASSIGNMENTS 5.01. This Agreement and the uses allowed hereunder shall not be assigned by User. ARTICLE VI. PROTECTION OF NATURAL AND mSTORICAL RESOURCES 6.01. User shall comply with all applicable rules and regulations of the General Land Office and other governmental agencies responsible for the protection and preservation of public lands and waters, including those relating to pollution. In the event of pollution or an incident that may result in pollution of the Premises or adjacent property which is the result of User's (or User's employees, contractors, invitees and agents) acts or omissions, User shall immediately notify the State, use all means reasonably available to recapture any pollutants which have escaped or may escape, and mitigate for any and all natural resources damages caused thereby. 6.02. USER IS EXPRESSLY PLACED ON NOTICE OF THE NATIONAL HISTORICAL PRESERVATION ACT OF 1966, (PB-89-66, 80 STATUTE 915; ~470) AND THE ANTIQUITIES CODE OF TEXAS, CHAPTER 191, TEX. NAT. RES. CODE ANN. (VERNON 2000 SUPP.). IN THE EVENT THAT ANY SITE, OBJECT, LOCATION, ARTIFACT OR OTHER FEATURE OF ARCHEOLOGICAL, SCIENTIFIC, EDUCATIONAL, CULTURAL OR HISTORIC INTEREST IS ENCOUNTERED DURING ANY ACTIVITY ON THE PREMISES, USER WILL IMMEDIATELY CEASE SUCH ACTIVITIES AND WILL IMMEDIATELY NOTIFY STATE AND THE TEXAS HISTORICAL COMMISSION, P.O. BOX 12276, AUSTIN, TEXAS 78711, SO THAT ADEQUATE MEASURES MAY BE UNDERTAKEN TO PROTECT OR RECOVER SUCH DISCOVERIES OR FINDINGS, AS APPROPRIATE. ARTICLE VII. INDEMNITY 7.01. USER SHALL BE FULLY LIABLE AND RESPONSIBLE FOR ANY DAMAGE, OF ANY NATURE, ARISING OR RESULTING FROM ITS OWN ACTS OR OMISSIONS RELATED TO ITS EXERCISE OF THE RIGHTS GRANTED HEREIN. USER AGREES TO AND SHALL INDEMNIFY AND HOLD THE STATE, THE STATE'S OFFICERS, AGENTS, AND EMPLOYEES, HARMLESS FROM AND AGAINST CLAIMS, SUIT, COSTS, LIABILITY OR DAMAGES OF ANY KIND, INCLUDING STRICT LIABILITY CLAIMS, WITHOUT LIMIT AND WITHOUT REGARD TO CAUSE OF THE DAMAGES OR THE NEGLIGENCE OF ANY PARTY, EXCEPT FOR THE CONSEQUENCES OF THE NEGLIGENT ACTS OR WILLFUL MISCONDUCT OF THE STATE, THE STATE'S OFFICERS, AGENTS, EMPLOYEES, OR INVITEES, ARISING DIRECTLY OR INDlRECTL Y FROM USER'S USE OF THE PREMISES (OR ANY ADJACENT OR CONJ'IGUOUS PERMANENT SCHOOL FUND LAND) OR FROM ANY BREACH BY USER OF THE TERMS CONTAINED HEREIN. THE PROVISIONS OF THIS SECTION SHALL SURVIVE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. ARTICLE VIII. PROPERTY REMOVAL AND TAXES 8.01. Upon termination of this Agreement, User shall remove its personal property from the Premises within thirty (30) days thereafter. THE TERMS OF THIS SECTION SHALL SURVIVE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. 8.02. USER AGREES TO AND SHALL PROTECT AND HOLD THE STATE HARMLESS FROM LIABILITY FOR ANY AND ALL TAXES, CHARGES, AND ASSESSMENTS, TOGETHER WITH ANY PENALTIES AND INTEREST THEREON, AND FROM ANY SALE OR OTHER PROCEEDING TO ENFORCE PAYMENT THEREOF. ARTICLE IX. MISCELLANEOUS PROVISIONS Special Document 20080002 - 5 pages .. .. oooooo . . . .. .. - .. .. oooo. .. - .. .. .. .. - - - - - .. .. .. .. - .. -. .. - -.OO .. 9.01. No provision of this Agreement shall be construed in such a way as to constitute the State and User joint venturers or co-partners, other than to the extent provided for in the PCA, or to make User the agent of the State or make the State liable for the debts of User. 9.02 In the event any provision of this Agreement is more restrictive than any administrative rule promulgated by the General Land Office and/or the School Land Board, this Agreement shall control. 9.03 Notices under this Special Document shall be delivered in the same manner and to the addresses as provided in the PCA. THE ST TE OF TEXA~ Y E. P TTERSON issio r, General Land Office By: IN TESTIMONY WHEREOF, WITNESS OUR HAND Datc~" Ron 80 HDrvP C '. (Printed Name) I +V Jtt/fA)tkh~ / (Titl!) J I Z,~D" Date: APPR01ED: ~Legal: C"""l'~_ ~~~~ E,~"ti.~ ACKNOWLEDGMENT STATE OF TEXAS COUNTY OF t-hrris s s s This instrument was acknowledged before me on the aWl- day of Stn..:v.4.ry by,..,.'.i.i.....i. ;~~r:'/~,~,'2t""'h;, ~"","M\. AT1 A" I /) . J . '.."'....."', /',.,{......,.....'..'''';3 iFq) i,./,.ht!,.."if -/1 t~ ~.J4 //Vf}liJF]~ /'l;/i,tZfiDYfiip:t ,20 D ~, ~~1ft,.~~m MY' COrTlItilSSlc)HExplres August 22. 2009 Notary Public, State of 5 ~aS My commission expires: ~,/ L'"2 --;J.1J oc:J Information collected by electronic mail and by web form is subject to the Public Information Act, Chapter 552. Government Code. . . ... . ... Special Document 20080002 - 5 pages . . . . . . . . . . . . . . . . . .. . . .. .. .. .. ... . ... . . .. .... .. EXHIBIT A TO SPECIAL DOCUMENT No. 20080002 COpy OF PROJECT COOPERATION AGREEMENT GLO CONTRACT No. 08-090-000 . . .... ... .... ... .. .. .. .. .. . ~ -. .. . . . ~ ~ ~ ~ .-. .- . ... .. PROJECT COOPERATION AGREEMENT FOR FINAL DESIGN, BIDDING AND CONSTRUCTION FUNDING FOR Sylvan Beach Shoreline Protection and Beach Nourishment CEPRA PROJECT NO. 1404 GLO CONTRACT No. 08-090-000 This Project Cooperation Agreement (Agreement) is made and entered into by and between the General Land Office (GLO) and the City of La Porte, Texas (Qualified Project Partner), pursuant to the Coastal Erosion Planning and Response Act, TEX. NAT. REs. CODE ANN. 9933.601-12 ("Act"). WHEREAS, pursuant to the Act, the GLO is authorized to implement a program of coastal erosion avoidance, remediation, and planning and will undertake coastal erosion studies, demonstration projects, and response projects in conjunction with Qualified Project Partners; and WHEREAS, upon the receipt of legislative appropriations, funds may be expended from the Coastal Erosion Response Account (Account) to finance erosion response activities authorized by the Act and approved by the Commissioner of the GLO; and WHEREAS, the Qualified Project Partner submitted a Project Goal Summary proposing a shoreline protection and beach nourishment project approximately 1,700 feet long on the Gulf shoreline of Sylvan Beach; and WHEREAS, the GLO has determined that the project should receive funding from the Account; and WHEREAS, this Agreement and all attachments hereto (collectively, the Agreement) shall set forth the terms and conditions under which an erosion response project will be completed and funded; NOW THEREFORE, in consideration of the benefits to the State of Texas, the GLO and the Qualified Project Partner enter into this Agreement and hereby agree as follows: I. EROSION RESPONSE PROJECT. 1.01. PROJECT DESCRIPTION. The parties agree to address the erosion problem at Sylvan Beach by construction of an armored shoreline approximately 1,700 feet in length, to include approximately 1,000 feet of beach nourishment fill along the Galveston Bay shoreline of Sylvan Beach at La Porte, Harris County, Texas (Project). The approximate Project area, GLO Contract No. 08-090-000 Page 1 of 5 . . . ._a. .olII. ... ..... ""I .. . ... - - . . . ... ........ estimated to be ten thousand (10,000) square feet, more or less, is shown on the map attached hereto and incorporated herein for all purposes as Attachment A. The exact placement of the Project will be determined in the design phase of the Project. The Project will include proceeding to final design, bidding, and construction of the Project; including engineering, permitting, developing bidding specifications, bidding support, and contracting for construction of the shoreline protection and beach nourishment proj ect. 1.02. TASKS. The parties shall complete the Project in accordance with the Project Work Plan, attached hereto and incorporated herein for all purposes as Attachment B. 1.03. PROJECT BUDGET. The parties agree that all expenses associated with the performance of this Agreement will be paid in accordance with the Budget, attached hereto and incorporated herein for all purposes as Attachment C, in an amount not to exceed the sum of Two MILLION FIVE HUNDRED TWENTY-FIVE THOUSAND ONE HUNDRED SEVENTY-TWO DOLLARS ($2,525,172.00). The amount payable from the Account under this Agreement shall not exceed ONE MILLION FOUR HUNDRED THOUSAND DOLLARS ($1,400,000.00). In the event the parties agree that additional tasks and/or funds are required for the completion of the Project, the parties shall execute an amendment to this Agreement. II. TERM. 2.01. DURATION. This Agreement shall be effective as of the date the signed by the last party, and shall terminate on August 31, 2009, unless extended by mutual agreement or terminated earlier, as provided below. 2.02. EARL Y TERMINATION. This Agreement may be terminated by either party by giving written notice specifying a termination date at least thirty (30) days subsequent to the date of the notice. 2.02. DISPUTE RESOLUTION. If a contract dispute arises that cannot be resolved to the satisfaction of the parties, either party may notify the other party in writing of the dispute. If the parties are unable to satisfactorily resolve the dispute within fourteen (14) days of the written notification, either party may request that the issue(s) be mediated. In the event that the parties agree to mediation, the GLO shall so notify the Qualified Project Partner and furnish the Qualified Project Partner with the names of three (3) mediators acceptable to the GLO. Within ten (10) days of such notice, the Qualified Project Partner shall select a mediator from the list provided by the GLO and notify the GLO. The mediation shall occur within thirty (30) days of such notification. Prior to the mediation, each party will provide the mediator with a statement of issues to be mediated, along with any other information or releases required by the mediator. Cost of the mediator shall be borne equally by the parties. Any dispute resolution shall be conducted in accordance with TEX. GOv'T CODE ANN., Chapter 2260. III. FUNDING. 3.01. PARTNER MATCH. a. The Qualified Project Partner shall be responsible for at least forty-five percent (45%) of the shared project costs as set forth in this Agreement (Partner GLO Contract No. 08-090-000 Page 2 of 5 . . .... ... . .. ... .. ~ - ........ ~ ,~. - Match) and may be subject to a Partner Match exceeding this minimum amount. The Qualified Project Partner acknowledges that costs incurred by the Qualified Project Partner before entering into this Agreement and expenditures not in accordance with the Project Budget in Attachment B may not be used to offset the Partner Match. b. In-kind goods or services provided by the Qualified Project Partner after entering into this Agreement may be used to offset the Qualified Project Partner's shared costs for the project provided the Qualified Project Partner presents the GLO with reasonable basis for estimating the monetary value of those goods or services. For an in-kind Partner Match, valuing and accounting determinations should be provided to the GLO within thirty (30) days of construction bid posting with Texas Marketplace, and include a description of the Partner Match, how it is to be provided, and a time line for providing it over the course of the Agreement. All in-kind Partner Match determinations are subject to the review and approval of the GLO. The decision to allow any in-kind goods or services to offset cost-sharing requirements is in the sole discretion of the GLO. All in-kind Partner Match requirements must be accounted for before the expiration of this Agreement. c. For the cash Partner Match, a sum equal to forty-five percent (45%) of the prior month's Project expenses shall be due each month. This match contribution should be submitted to: Texas General Land Office Coastal Erosion Planning and Response Act (CEPRA)-MATCH Mail Code 151 P.O. Box 12873 Austin, TX 78711-2873 Attn: Dianna Gordon 3.02. ALTERNATIVE SOURCE FUNDING. The parties agree to continue to work cooperatively to investigate and secure funding from sources other than the Account. Alternative sources of funding acquired by the Qualified Project Partner after the execution of this Agreement may be used to meet the Partner Match. 3.03. APPROPRIATIONS. This Contract shall not be construed as creating any debt on behalf of the State of Texas and/or the GLO in violation of TEX. CONST. art. III, 949. In compliance with TEX. CONST. art. VIII, 96, it is understood that all obligations of the GLO are subject to the availability of funds. 3.04. AUDIT. The GLO reserves the right to audit any Qualified Project Partner account related to the subject project and to verify any expense item submitted for reimbursement by the Qualified Project Partner, who will permit the GLO to inspect, and will make available for inspection, any and all pertinent records, files, information, and other written materials pertaining to the expenditure of funds on the Alternatives Evaluation and/or the Project. The Qualified Project Partner further agrees to maintain, keep, and preserve at its principal office all such records, and all other records associated with this Agreement, for a period of four (4) years following the completion or termination of this Agreement and to make the same available to the GLO or other agencies of the state or federal government for purposes of audit. GLO Contract No. 08-090-000 Page 3 of 5 . ~, "'" "" . _ 1IIiI....... IV. MISCELLANEOUS PROVISIONS. 4.01. OTHER LAW. Incorporated by reference the same as if specifically written herein are the rules, regulations, and other requirements imposed by law, including but not limited to compliance with those pertinent statutes, rules, and regulations of the State of Texas and those of federal agencies providing funds to the State of Texas, all of which shall apply to the performance of the services hereunder. 4.02. PARTNER COMPLIANCE. This paragraph applies only to a local governmental entity subject to the provisions of the Open Beaches Act, TEX. NAT. REs. CODE ANN. Chapter 61 and the Dune Protection Act, TEX. NAT. REs. CODE ANN. Chapter 63. The Qualified Project Partner acknowledges that it will reimburse the Account for any costs to the erosion response project, whether in the form of increased project costs or decreased benefits, resulting from any action or activity which has occurred or is occurring that is not in compliance with the relevant local beach/dune planes). 4.03. POINTS OF CONTACT. a. The GLO's point of contact for this Agreement shall be: Mr. Dennis Rocha, Proj ect Manager Texas General Land Office P.O. Box 12873 Austin, Texas 78711-2873 TEL: (512) 475-1412/ FAX: (512) 463-5233 dennis.rocha@glo.state.tx.us b. The Qualified Project Partner's point of contact for this Agreement shall be: Mr. Stephen L. Barr, Parks and Recreation Dep't. City of La Porte 604 W. Fairmont Parkway La Porte, TX 77571-6215 TEL: (281) 470-5136/ FAX: (281) 470-1361 4.04. NOTICES. Any notice required or permitted to be delivered under this Agreement shall be deemed delivered when deposited in the United States mail, postage prepaid, certified mail, return receipt requested, addressed to the point of contact for the GLO or the Qualified Project Partner at the address set forth in Section 4.03 of this Agreement. 4.05. VENUE. This Agreement shall be governed and construed in accordance with the laws of Texas. Venue of any suit brought for breach of this Agreement is fixed in any court of competent jurisdiction in Travis County, Texas; provided, however, the foregoing shall not be construed as a waiver of sovereign immunity by the GLO. GLO Contract No. 08-090-000 Page 4 of 5 . . . ..... .. .. .. .. - . . - .. .. .. .. .. .. .. .. .. . . . - . -. . .- - . - .-. . 4.06. SEVERANCE. Should anyone or more provisions of this Agreement be held to be void, voidable, or for any reason whatsoever of no force and effect, such provision(s) shall be construed as severable from the remainder of this Agreement and shall not affect the validity of all other provisions of this Agreement, which shall remain of full force and effect. 4.07. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the parties. No other agreement, statement, or promise that is not contained in this Agreement shall be binding except a subsequent written modification sigt! y bo h parties. ~1-J uC Date of execution: GENERAL LAND OFFICE ~ Larry L. Laine, Chief Clerk! Deputy Land Commissioner Date of execution: ~'A~. 1. ~ G. GLO Contract No. 08-090-000 Page 5 of5 . . . ... .. .. . ...... .... .... .. .. .. .. . .. .. .. ....... ATTACHMENT A GLO CONTRACT No. 08-090-000 PROJECT LOCATION MAP . . .... ... . .. ... . - - ...... Attachment A ._ Contract No () <i ::OgO-Ooo Page --'- of _I . PROJECT LOCATION II r -'I. -.... -- I.I~ "',. "~. Sylvan Beach Shoreline Protection and Beach Nourishment Project (CEPRA Project #1404) Project Location Map Texas General Land Office j . . A TT ACHMENT B GLO CONTRACT No. 08-090-000 PROJECT WORK PLAN ..~ .-. .... -.- Attachment B Contract No. 08-090-000 Page 1 of 1 SYL VAN BEACH SHORELINE PROTECTION & BEACH NOURISHMENT CEPRA PROJECT No. 1404 ENGINEERING DESIGN AND CONSTRUCTION WORK PLAN 1. To address erosion at Sylvan Beach, the GLO shall: a. Identify, document, and confer with the Qualified Project Partner, the location and extent of the project area. b. Confirm with the Qualified Project Partner, the preferred alternative(s) for erosion response at the project site. c. Contract with a professional services provider to: document and survey existing conditions as required verify that all permit requirements have been met; complete final design and construction drawings as needed; estimate construction costs; provide plans, specifications and competitive sealed proposal package; provide construction solicitation and procurement assistance; perform construction management; and conduct post-project closeout program. d. Procure construction contractor through the competitive sealed proposal process for construction services. e. Estimate total project costs and cost-sharing requirements. f. Provide financial point of contact. 2. To address erosion at Sylvan Beach, the Qualified Project Partner shall: a. Confer with the GLO, the location and extent of the project area. b. Confer and cooperate with the GLO on the selection of the professional service provider, selection of preferred alternative, development of a scope of work, and development of a construction plan. c. Confer and cooperate with the GLO with procuring a construction contractor. d. Identify, document, and coordinate with the GLO any in-kind services that will count toward the cost-sharing requirement under this Agreement: labor; contractual; volunteers; equipment; and supplies. e. Provide financial point of contact. . . . .. - ... - .. ATTACHMENT C GLO CONTRACT No. 08-090-000 PROJECT BUDGET ~ -~.. ~.~ ... ... ~ BUDGET Sylvan Beach Shoreline Protection and Beach Nourishment Project CEPRA Project NO. 1404 Attachment C-. Contract NooB -oqo~OOo Page .-1. of I PROJECT COSTS CONTRACTUAL AMOUNT Task 1. Engineering Design Update, Bidding Services, Project Construction and Construction Management $2,525,172.00 Subtotal $2,525,172.00 TOTAL PROJECT COST NOT TO EXCEED $2,525,172.00 COST SHARING SUMMARY QUALIFIED PROJECT PARTNER (QPP): 45% of total project costs QPP Cash Commitment (City of LaPorte, Harris County) $1,125,172.00 QPP In-kind Commitment $0.00 QPP's TOTAL CONTRIBUTION* $1,125,172.00 CEPRA: 55% of total project costs CEPRA's TOTAL CONTRIBUTION $1,400,000.00 TOTAL PROJECT CONTRIBUTIONS $2,525,172.00 * Please specify when using historically underutilized business as required by state law. 1404 peA Budget Page.xls 11/28/20078:21 AM 1 . . . .