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HomeMy WebLinkAboutR-2005-08-09 Joint Resolution CLP/Shoreacres intent to aquire and develop a park on Taylor Bayou 1 e . JOINT RESOLUTION CITY OF SHOREACRES RESOLUTION 2005- O~ CITY OF LA PORTE RESOLUTION 2005- tY'J INTENT TO DEVELOP JOINT USE PARK ON TAYLOR BAYOU A JOINT RESOLUTION BY THE CITIES OF SHOREACRES, TEXAS AND LA PORTE, TEXAS OUTLJNING THEm. INTENT TO ACQUIRE AND DEVELOP A NA TURE-BASED PARK. ON TAYLOR BA YOU WHEREAS, the property located at Block 41 Lot 18B Shoreacr.es(proposed park) provides access to two branches of Taylor Bayou for kayaking and other low impact water recreation and can be connected by water with other parks along Taylor Bayou; WHEREAS, the proposed park is one of the last natural pieces of property in the Shoreacres and Shady River area for walking, bird watching, and other nature-based activities; WHERAS, the proposed park contains valuable wetlands along the Taylor Bayou shoreline, necessary to maintain water quality and habitat along this important estuary; WHEREAS, portions of the proposed park lie in both the Cities of Shoreacres and La Porte and can accessed by citizens of both cities: WHEREAS, the current owner of the proposed park is willing to sell the property for use as a park with minimal disruption to trees, vegetation, and wetlands; NOW THEREFORE, BE IT RESOL YED BY THE CITY COUNClLS OF THE CITIES OF SHOREACRES AND LA PORTE, STATE OF TEXAS; THAT: 1. The cities jointly apply for a grant from the Coastal Coordination Council's Coastal Management Program Cycle 11 for the purpose of purchasing the proposed park; 2. The cities develop a joint plan for the park over the next year that provides for pedestrian access to the park from Shoreacres and appropriate park facilities, such as a kayak dock. AND IT IS SO ORDERED. PASSED AND APPROVED THIS THE 23m DA Y OF MA Y, 2005. ." ... ~ I. e e State of Texas CERTIFIED COpy County of Harris I certify that this document is a true, exact, and unaltered copy. Name: ~,,\,," J{. 4)1J'Ioll Title: t..T"V - GJZc: Date: NOV 2 2 2lDi e Resolution No. 2005 e P~e2 ~VJ;( {Lv-- NANCY R EDMONSON, MAYOR CITY OF SHOREACRES ATTEST: D.lt~__ L,:Vo-de:.~ ALTON POR~ MAYOR CITY OF LA PORTE ATIEST: State of Texas CERTIFIED COpy County of Harris I certify that this document is a true. exact, complete and unaltered;OPY. Name: II'" I ~l'trl Title: So Date: NOY 2 2 mi e e City of Shoreacres 601 SHOREACRES BOULEVARD SHOREACRES, TEXAS 77571 PHONE (281) 471-2244 FAX (281) 471-8955 November 23, 2005 RECEiVED NOV 2 8 2005 CITY SECREh\ri.Y'S OFFiCe Ms, Sharon Harris - . - ..CitY-Qf-l.a-Porte- .- 604 W Fairmont La Porte, TX 77571 RE: Certified Copy of Joint Resolution 2005-08 Dear Ms. Harris: Please find enclosed the requested copy of Resolution 2005-08. . Stall, ICMA-CM dministrator I City Secretary . ~ ~.,~~ .: . .. .. ., .. . . .. . ~. L05112301 LaPorte e e REQUEST FOR CITY COUNCIL AGENDA ITEM Appropriation Agenda Date Requested: Ma 23 Requested By: Stephen L. Barr Source of Funds: Department: Ace't Number: Report: _Resolution: X Ordinance: Amount Budgeted: N/A Exhibits: Resolution 2005-09 Amount Requested: N/A Exhibits: Bud eted Item: YES NO N/A Exhibits: SUMMARY & RECOMMENDATION As discussed with Council, the City of Shoreacres has approached the City of La Porte regarding a possible joint venture park on the property located at the fork of Taylor Bayou. If approved, this resolution will enable the two cities to pursue a Coastal Management Program Cycle 11 grant to fund the purchase and development of the proposed park Action Reauired bv Council: Consider approval of Joint Resolution 2005-09 with the City of Shoreacres regarding a proposed park at property located at the west fork of Taylor Bayou. ?r,s- Date \ '. ;;, :~. ,'" " City of La Porte Interoffice Memorandum pAr. . ;' 1'~Y5 CI J i ,..'.:>~~:.<tMaYt27, 2005 ,- 1;" t,.. J c;. E: ,,~ To: Mayor and City Council t1 ~ From: John Joerns, Assistant City Manager Stephen L. Barr, Director of Parks & Recreation ~.' Texas General L:and Office - Coastal Easement No. CE 20050145 Through: The City of La Porte has received for execution, a Coastal Easernent for the NCI Property. This easement will allow the City to install the protective bulkhead and make improvements to the breakwater as discussed in the 23 May council meeting. A synopsis of the agreement is as follows: . It is a 5 year renewable lease . Application fee for the easement cost the City $25 . There is no annual fee attached, because we are a governmental agency, and because of our plans to improve the property environmentally by placing the bulkhead in place and improving the breakwater . It is non-transferrable, so if the property changes hands then the new owner would need to get their own coastal lease agreement with the state The agreement needs to be executed and both copies returned to the state by 3 June. The state will then execute and return our copy for filing with Chambers County. If there are questions or if I can be of further assistance, please do not hesitate to contact me. ; ..,-i-" "~lo._' t ~'~-. M6Y 3 1 2005 C i ) 1~~~i:~;/gf/\; t: ;:; Page 1 of 1 T E.i' X> !>>'Q .Jl. L ..d .d.. )._. ~J._')\. ~J '. r-"'l. "E"'l1\..."r. 'lE-\ j'r).' i~. '..'( .l T -1 "", 1 '~.".\, '.. _p ,.:..d .\.. ; ~. __,.1 ... "'\." ...:\".;.." ",........d '[ /\ -\. T ']'[ '\ J d ..t:~'- ~.L '--~ _" ..)1 c)) Ti' 'f;"( :C'; 'U ,.~->' J - ~___ , "'., ~"'-/ .-.L~.f JERRY PATTERSON, COMMISSIONER May 17, 2005 ~ /' t tbL fJ City of La Porte P.O. Box 1115 LaPorte, TX 77572-1115 Re: Coastal Public Lands Easement No. CE20050145 Galveston Bay, Chambers County, Texas Dear City of La Porte: Enclosed are two originals of Coastal Easement and Memorandum of Easement (MOE) for the above referenced project. A consideration of $0.00 has been assessed for the 5-year term. Please sign both contracts where indicated and the MOE's before a notary public and return them.to the address listed on below within twenty (20) days of the date of this letter. When the documents have been executed, one copy will be returned to you and one retained for our files. Please note, when you get the executed easement and MOE back, you will need to have the MOE recorded in the Real Property Records of Chambers County and provide us with a copy of the recorded instrument within 30 days, in accordance with section 19.09 of the contract. For a full explanation of fees, see Article N of the contract. Your signature on the contract constitutes acceptance of all provisions contained therein. If you have any questions, please call me at (512) 475-1579. Sincerely, f) J---- ~ /;')?7<M-~t1~, Linda K. Southard Asset Inspection Enclosure Stephen E Austin Building - 1700 North Congress Avenue -Austin, Texas 78701-1495 Post Office Box 12873 - Austin, Texas 78711-2873 512-463-.5001 - 800-998-4GLO W\VW. glo.state. tx, us cprosig ,.--. The State of Texas Austin, Texas MEMORANDUM OF COASTAL EASEMENT NO. CE20050145 STATE OF TEXAS ~ ~ ~ KNOW ALL MEN BY THESE PRESENTS: COUNTY OF CHAMBERS This Memorandum of Coastal Easement is made on February 1,2005 to record the agreement heretofore entered into by the State of Texas, acting by and through the Commissioner of the General Land Office and Chairman of the School Land Board, on behalf of the Permanent School Fund (the "Grantor"), and City of La Porte, a nonprofit corporation (the "Grantee"), which affects certain lands in Chambers County, Texas. WITNESSETH That for and in consideration of the mutual promises and undertakings recited therein, the parties have executed Coastal Easement No. CE20050 145 (the "Easement"), an original of which is in the records of the General Land Office. The Grantee has been granted the use of certain submerged land (the "Easement Tract") located in State Tract Number 123, Galveston Bay, Chambers County, Texas, being more particularly described in said Easement and in Exhibits attached thereto and incorporated herein by reference. The littoral property of Grantee that is adjacent to the Easement Tract is described in said Easement as Lot 19, W.B. Lowrence SID, Johnson Hunter Survey, as recorded in the Real Property Records of Harris County, Texas. The Easement Tract encumbered by the Easement to Grantee contains approximately 1,980 square feet. The term of the Easement is for a period of five (5) years, which term beginning February 1, 2005, and terminating on January 31,2010, unless earlier terminated as provided in the Easement. The Easement sets forth Grantee's limited right to use and occupy the property described for a 5' x 396' concrete riprap breakwater comprising an encumbrance of 1,980 square feet of coastal public land. The Easement is not assignable without the prior written consent of the Grantor. Use of state property without the requisite consent may subject the user to the assessment of a civil penalty of $200.00 per day, as provided in Chapter 33 of the Natural Resources Code, and/or a penalty of up to $1,000.00 per day as provided in Chapter 51 of the Natural Resources Code. CE20050145 Isouthar mace. doc V33 IN TESTIMONY WHEREOF, witness my hand and the Seal of Office. GRANTOR: THE STATE OF TEXAS By: JERRY E. PATTERSON Commissioner, General Land Office Chairman, School Land Board Date: By: GRANTEE: City of La Porte <:\) ~~~,\~ (Signature) 4LTOtJ c. r?rZ\Y'L (Printe Name and Title) AYDK IjJV~b (> S Title: Date: APPROVED: 1'L--' ~ Contents: Legal: Deputy: Executive: ACKNOWLEDGMENT STATE OF COUNTY OF ~i~ #-t:tA'~ 9 9 This instrument was acknowledged before me on the I a:t day of ~ ,,/?Oc!J--.!:F, by ~L(f/ ;Jt1-cLU./ , ~~~ of ILZU 1Y~;:JcM--a: , .-I (Title) (/ '-'rco/i:tc;ny ~e) a ~<J./ m~/~~~v-btfx.ft-7';T , on behalf of the ~ (State) (lJ(.siness entity type) (Business entity type) ?~ /:?;1 ~~ Notary Public, State of ~*~ My commission expires: 09- /;;2-.;; dO'S- , . -. ~ . ~ ~ . ~ I. CE20050145 lsouthar 2 mace. doc V3.3 The State of Texas Austin, Texas COASTAL EASEMENT NO. CE20050145 STATE OF TEXAS s s s KNOW ALL MEN BY THESE PRESENTS: COUNTY OF CHAMBERS This Coastal Easement No. CE20050145, (the "Easement") is granted by virtue ofthe authority granted by Chapter 33, TEX. NAT. RES. CODE ANN. and 31 Texas Administrative Code Chapters 1 and 155, and all amendments thereto, and subject to all rules and regulations promulgated by the Commissioner of the General Land Office and/or the School Land Board pursuant thereto and all other applicable statutes. ARTICLE I. Parties 1.01. In consideration of the mutual covenants and agreements set forth in this Easement, and 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 General Land Office and Chairman of the School Land Board, on behalf of the Permanent School Fund (the "Grantor"), does hereby grant to City of La Porte whose address is PO Box 1115, La Porte, TX 77572-1115, phone number (281) 470-7275, (the "Grantee") the right to use a tract of state-owned real property (the "Premises" as defined below) for the purposes described in Article VI of this Easement. ARTICLE II. Premises 2.01. The coastal public land Grantee may use is described as follows: A portion of State Tract Number 123, Galveston Bay, Chambers County, Texas (the "Premises"). The Premises are further described and depicted on Exhibits A, B, Cl, C2, C3, and C4 attached hereto and incorporated herein by reference. 2.02. Grantee represents that the Premises are located adjacent to property which is owned by Grantee or in which Grantee has a possessory interest, which property is identified as: Being all of Lot 19, W.B. Lowrence SID, Johnson Hunter Survey as recorded in the real property records of Harris County, Texas. Grantee acknowledges that, if Grantee is divested of its interest in the above-described adjacent property, Grantor may terminate this Agreement upon ten (10) days written notice to Grantee. 2.03. The Grantor and Grantee acknowledge and agree that Grantee's right to use the Premises is exclusive as to any improvements located or to be located thereon, and non-exclusive as to the remainder. CE20050145 Isouthar newce.doc V3.2 2.04. Grantee acknowledges and agrees that when any authorized improvements are placed on the Premises, the location of such improvements shall thereby become fixed at such location and shall not be changed except by a written amendment to this Agreement. 2.05. GRANTEE HAS INSPECTED THE PHYSICAL AND TOPOGRAPHIC CONDITION OF THE PREMISES AND ACCEPTS THE SAME "AS IS", IN ITS EXISTING PHYSICAL AND TOPOGRAPHIC CONDITION. GRANTEE ACKNOWLEDGES THAT IT IS NOT RELYING ON ANY REPRESENTATION, STATEMENT OR OTHER ASSERTION OF GRANTOR WITH RESPECT TO THE CONDITION OF THE PREMISES, BUT IS RELYING ON GRANTEE'S OWN INSPECTION OF THE PREMISES. GRANTOR DISCLAIMS ANY AND ALL WARRANTIES OF HABITABILITY, MERCHANTABILITY, SUITABILITY, FITNESS FOR ANY PURPOSE, AND ANY OTHER EXPRESS OR IMPLIED WARRANTY NOT EXPRESSLY SETFORTH IN THIS EASEMENT. GRANTOR AND GRANTEE HEREBY ACKNOWLEDGE AND AGREE THAT THE USE OF THE TERM "GRANT" AND/OR THE TERM "CONVEY" IN NO WAY IMPLIES THAT THIS EASEMENT IS FREE OF LIENS, ENCUMBRANCES AND/OR PRIOR RIGHTS. GRANTEE IS HEREBY PUT ON NOTICE THAT ANY PRIOR GRANT AND/OR ENCUMBRANCE MAY BE OF RECORD AND GRANTEE IS ADVISED TO EXAMINE THE RECORDS IN THE ARCHIVES AND RECORDS DIVISION OF THE GENERAL LAND OFFICE, 1700 NORTH CONGRESS A VENUE, AUSTIN, TEXAS 78701-1495, AND ALL LAND TITLE RECORDS OF THE COUNTY IN WHICH THE PREMISES ARE LOCATED. ARTICLE III. Term 3.01. This Easement is for a total period of five (5) years, beginning February 1,2005, and terminating on January 31, 2010, unless earlier terminated as provided in this Easement. ARTICLE IV. Rent 4.01. As consideration for the granting of this Easement, Grantee agrees to pay Grantor as consideration ("Rent"), the total sum of Zero And 00/100 Dollars ($.00). This Rent is payable on or before the first day of each "Easement Year" (as such phrase is defined in Section 4.02), in five (5) annual installments of Zero And 00/100 Dollars ($.00). 4.02. For the purposes of this Easement, the phrase "Easement Year" means the period from February 1 of one year through January 31 of the following calendar year, with the first Easement Year commencing on February 1,2005. 4.03. All Rent and any other sums hereunder provided to be paid by Grantee shall be due and payable by Grantee without demand, deduction, abatement or off-set. Past due Rent and other past due payments shall bear interest from maturity at the rate often percent (10%) per annum from the date when due until actually paid. Failure of Grantee to make a payment on or before the date the same becomes due shall, at the option of Grantor, make all payments due and payable immediately. ARTICLE V. Taxes 5.01. Grantee shall, as further consideration for this Easement, pay and discharge all "Taxes" (as hereinafter defined) properly assessed in any calendar year (or portion thereof) during the term of this Easement. For the purposes of this Easement, the term "Taxes" means all taxes, assessments, impositions, levies, charges, excises, fees, licenses and other sums (whether now existing or hereafter arising, whether foreseen or unforeseen and whether under the present system of real estate taxation or some other system), which during the term of this Easement may be levied, assessed, charged or imposed by any governmental authority or other taxing authority or accrue on the Premises and any Improvements or other property thereon, whether belonging to Grantor or Grantee, or to which either of them may become liable in relation thereto. The term "Taxes" shall also include all penalties, interest and other charges payable by reason of any delay or failure or refusal of Grantee to make timely payments as required pursuant to this Section 5.01. 5.02. Grantee agrees to and shall protect and hold harmless Grantor and the Premises from liability for any and all Taxes, together with any interest, penalties or other sums thereon imposed, and from any sale or other proceeding to enforce payment thereof. CE20050145 lsouthar 2 newce.doc V3.2 5.03. Grantee agrees to pay all Taxes directly to the applicable taxing authority not less than fifteen (15) days prior to the date of delinquency thereof. ARTICLE VI. Use of Premises 6.01. Grantee shall have the right to use the Premises solely for the following improvements: a 5' x 396' concrete riprap breakwater comprising an encumbrance of 1,980 square feet of coastal public land, as depicted on Exhibits A, B, Cl, C2, C3, and C4 attached hereto and incorporated herein by reference ("Improvements"). Grantee shall not use the Premises for any other purpose without obtaining prior written consent of Grantor, which consent may be granted or withheld by the Grantor in its sole discretion. 6.02. Grantee, at its own expense, will comply with all federal, State, municipal and other laws, codes, ordinances, rules and regulations applicable to the Premises including, without limitation, those dealing with environmental and health issues; and will install, remove and alter such equipment and facilities in, and make such alterations to, the Premises as may be necessary to comply. Grantee will not make any unlawful use of the Premises or permit any unlawful use thereof; and will not commit, or permit anyone else to commit, any act which is a nuisance or annoyance to Grantor or adjacent property owners or tenants, or which might, in the exclusive judgment of Grantor, damage Grantor's goodwill or reputation, or tend to injure or depreciate the value of the Premises and/or any Improvements located thereon. 6.03. Grantee shall use the highest degree of care and all appropriate safeguards to prevent pollution of air, ground and water in and around the Premises, and to protect and preserve natural resources and wildlife habitat. In the event of pollution of or damage to natural resources in or around the Premises which is the result of an act or omission of Grantee, its officers, employees, agents, representatives, contractors, and/or invitees, Grantee shall immediately notify the State and undertake all required and appropriate action to remedy the same. Grantee shall be liable for all damages and/or mitigation to the Premises and public lands and waters as a result of such act or omission. 6.04. Grantee shall insure that all Improvements constructed by it and/or operated on the Premises are visible to operators of marine craft at all times. Grantee shall further take any and all steps necessary to insure that Improvements constructed by it and/or placed or operated on the Premises do not constitute a hazard to operators of marine craft. Grantee may not restrict or prevent other persons from access to navigating open, navigable waters. 6.05. GRANTEE IS EXPRESSLY PLACED ON NOTICE OF THE NATIONAL HISTORICAL PRESERVATION ACT OF 1966, (pB-89-66, 80 STATUTE 915; 16 U.S.CA. ~470) AND THE ANTIQUITIES CODE OF TEXAS, CHAPTER 191, TEX. NAT. RES. CODE ANN. IN THE EVENT THAT ANY SITE, OBJECT, LOCATION, ARTIFACT OR OTHER FEATURE OF ARCHEOLOGICAL, SCIENTIFIC, EDUCATIONAL, CULTURAL OR HISTORIC INTEREST IS ENCOUNTERED DURING THE ACTIVITIES AUTHORIZED BY THIS EASEMENT, GRANTEE WILL IMMEDlA TEL Y CEASE SUCH ACTIVITIES AND WILL IMMEDIA TEL Y NOTIFY GRANTOR 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. 6.06. By execution of this Agreement, Grantee authorizes the State, its officers, agents, representatives and employees to access the Premises over and across Grantee's adjacent property described in Section 2.02. In exercising such right, Grantor agrees not to unreasonably interfere with Grantee's use of such property, and Grantor agrees to exercise its right of ingress and egress only at reasonable times (except in an emergency) for purposes of inspection, repair and as necessary to protect the State's interests. Grantor agrees to use adjacent land owned by Grantee only to the extent and for the length of time necessary to provide access to and from the Premises. The foregoing authorization creates a license only, and does not create an easement over Grantee's adjacent property. 6.07. Grantee acknowledges and agrees that Grantor's right of ingress and egress described in Section 6.06 of this Agreement shall remain in effect as long as the Improvements and any other structure placed on the Premises by Grantee remain on the Premises and/or as necessary for Grantor to confirm the removal (in whole or in part) of the Improvements. Such right of ingress and egress shall survive the termination of this Agreement. CE20050145 lsouthar 3 newce.doc V3.2 6.08. Grantee's use of the Premises is subject to compliance with the following covenants, obligations and conditions (the "Special Conditions"): (a.) Riprap breakwaters shall be constructed of suitable limestone rock or broken concrete material that is free of metal rebar. (b.) Breakwaters shall be built of sufficient height above the substrate to be visible above the water surface at mean high tide. Permanent markers/pilings shall be installed to U.S. Coast Guard specifications. (c.) Breakwaters shall be designed to allow for the ingress and egress of fish and for water circulation as shown in Exhibit C. (d.) Any accretion of sediment resulting from the transplant project, as determined by the GLO, will be considered property of the State of Texas. 6.09. Prior to undertaking construction or installation ofImprovements on the Premises, Grantee shall provide written notice of the terms of this Agreement, including the Special Conditions, to each person or entity authorized by Grantee to perform any such activity on its behalf. Grantee shall retain a copy of each such written notice provided to its agents, representatives, employees, and/or contractors under this provision and, if a dispute arises concerning construction or installation of the Improvements, Grantee shall provide Grantor with a copy of all applicable notices within ten (10) days of Grantor's written request. Grantee's failure to maintain and provide each required written notice shall constitute a default under this Agreement. 6.10. If Grantee fails to maintain and/or repair Improvements in good condition and repair, such failure shall constitute a default under this Agreement and Grantor may, at its option, terminate this Agreement upon written notice to Grantee or pursue a remedy under Section 51.3021 of the Texas Natural Resources Code. If Grantee constructs improvements other than those authorized in Article VI, such improvements shall constitute illegal structures and Grantor may, at its option, terminate this Agreement or pursue a remedy under Section 51.302, et seq. of the Texas Natural Resources Code. ARTICLE VII. Construction by Grantee 7.01. Except as provided in Article VI hereof, Grantee shall make no alterations, additions or changes in the Premises without the prior written consent of Grantor. 7.02. Prior to termination of the Easement, unless otherwise directed by Grantor in writing, Grantee will demolish or remove all or any portion of the Improvements then existing on the Premises, remove all debris resulting from such demolition, and leave the ground theretofore occupied by such Improvements in a safe, clean condition, all such work to be done as promptly and expeditiously as is reasonably possible. 7.03. If Grantee fails to comply with the foregoing, Grantor shall have the right to perform the aforesaid requested work, in which event Grantee shall be liable to Grantor for all cost, loss and damage incurred by Grantor in connection therewith. ARTICLE VIII. Repair and Maintenance 8.01. Grantor shall have no duty to repair, maintain, replace the Premises or any improvements ("Improvements") placed at or constituting any portion of the Premises. Grantor will not be liable for any damage or injury, fatal or nonfatal, resulting from any damage, defect or disrepair of any Improvements. CE20050145 Isouthar 4 newce.doc V3.2 8.02. All damage to Improvements will be repaired and all maintenance thereon will be performed and replacements and renewals thereof will be made at Grantee's cost and expense. Grantee shall be responsible for the removal and disposal of all trash at the Premises (whether or not such trash is generated by Grantee or its customers and invitees). 8.03. If Grantor considers necessary any repairs, maintenance, renewals or replacements pursuant to this Easement, Grantor may request that Grantee make such repairs, maintenance, renewal or replacements. Upon Grantee's failure or refusal to do so, (and in any event in case of an emergency), Grantor may make such repair, maintenance, renewal or replacement (Grantee hereby waiving any claim for damage caused thereby). GRANTEE IS LIABLE AND WILL INDEMNIFY GRANTOR FOR THE COST THEREBY INCURRED BY GRANTOR. Any failure of Grantee to make such payment to Grantor may be treated by Grantor as a default by Grantee in the payment of Rent required to be paid by Grantee hereunder. 8.04. Grantor will have a right to enter the Premises at any reasonable time as specified in Sections 6.06 and 6.07 of this Easement (including during Grantee's business hours) to inspect the condition thereof, to make necessary repairs and Improvements and for other lawful purposes. ARTICLE IX. Assignments 9.01. Grantee shall not assign or otherwise dispose of an interest in this Easement or the Premises without the express prior written consent of Grantor; and any attempt to assign or otherwise dispose without consent shall be void and of no effect. In the event of any such attempted assignment or disposition, Grantor may terminate this Easement effective upon fifteen (15) days notice to Grantee. This prohibition against assigning or disposition shall be construed to include a prohibition against any assignment or disposition by operation of law. 9.02. If this Easement is assigned or if an interest in this Easement or the Premises is disposed of, Grantor may nevertheless collect rent from the assignee and apply the net amount collected to the Rent payable hereunder. No such transaction or collection of rent shall be deemed a waiver of these provisions or a release of Grantee from the further performance by Grantee of its covenants, duties and obligations hereunder. ARTICLE X. Utilities 10.01. Grantee shall, at its own cost and expense, pay all charges for delivery and use of water, sanitary sewer, electricity, gas and all other utilities used on the Premises throughout the term of this Easement, including any connection charges, AND SHALL SAVE AND HOLD GRANTOR HARMLESS FROM ANY CHARGE OR LIABILITY FOR SAME. All such charges are to be paid by Grantee directly to the utility company or municipality furnishing the same before the same shall become delinquent. 10.02. No interruption or malfunction of any utility service shall constitute an eviction or disturbance of Grantee's use and possession of the Premises or a breach by Grantor of any of its obligations hereunder or render Grantor liable for any damages (including, without limitation, consequential or special damages) or entitle Grantee to be relieved from any obligations hereunder or grant Grantee any right of set-off or recoupment. ARTICLE XI. Indemnity 11.01. EXCEPT FOR MONETARY DAMAGES FOR INJURY, DEATH OR PROPERTY DAMAGE DIRECTLY OR PROXIMATELY CAUSED SOLELY BY THE GROSS NEGLIGENCE OF GRANTOR FOR WHICH GRANTOR IS LEGALLY LIABLE, GRANTEE AGREES TO INDEMNIFY AND HOLD GRANTOR AND GRANTOR'S AUTHORIZED OFFICERS, REPRESENTATIVES, AGENTS AND EMPLOYEES HARMLESS FROM AND AGAINST ALL LOSSES, CLAIMS, SUITS, ACTIONS, DAMAGES AND LIABILITY (INCLUDING COSTS AND EXPENSES OF DEFENDING AGAINST ALL OF THE AFORESAID, AND SPECIFICALLY INCLUDING COURT COSTS AND REASONABLE ATTORNEY'S FEES), INCLUDING STRICT LIABILITY CLAIMS, ARISING (OR ALLEGED TO HAVE ARISEN) IN CONNECTION WITH THIS EASEMENT OR THE USE AND OCCUPANCY OF THE PREMISES, INCLUDING, WITHOUT LIMITATION, FROM ANY ACT OR OMISSION OF ANY PERSON INCLUDING, WITHOUT LIMITATION, GRANTOR OR GRANTOR'S OFFICIALS, AGENTS OR EMPLOYEES, GRANTEE OR CE20050145 lsouthar 5 newce.doc V3.2 GRANTEE'S AUTHORIZED REPRESENT A TlVES, AGENTS, EMPLOYEES, ASSIGNEES, SUBLESSEES, CONTRACTORS, CUSTOMERS OR INVITEES TAKEN OR NOT TAKEN IN CONNECTION WITH THE PREMISES OR THIS EASEMENT, OR ARISING FROM ANY INJURY TO OR DEATH OF ANY PERSON OR FROM DAMAGE TO OR DESTRUCTION OF ANY PROPERTY OCCURRING IN, ON OR ABOUT THE PREMISES. GRANTEE ASSUMES RESPONSIBILITY FOR THE CONDITION OF THE PREMISES. GRANTEE EXPRESSLY AGREES TO USE AND OCCUPY THE PREMISES AND PLACE ITS IMPROVEMENTS, FIXTURES, EQUIPMENT, MERCHANDISE AND OTHER PROPERTY THEREIN AND THEREON AT ITS OWN RISK, AND HEREBY RELEASES GRANTOR AND GRANTOR'S OFFICIALS, EMPLOYEES AND AGENTS FROM ALL CLAIMS FOR ANY DAMAGE OR INJURY TO THE FULL EXTENT PERMITTED BY LAW, EVEN IF SUCH CLAIM ARISES FROM OR IS ATTRIBUTABLE TO THE SOLE OR CONCURRENT NEGLIGENCE OF INDEMNIFIED PARTY. GRANTEE SHALL BE RESPONSIBLE FOR THE SAFETY AND WELL BEING OF GRANTEE'S EMPLOYEES, CUSTOMERS AND INVITEES, AND GRANTEE AGREES TO INDEMNIFY AND HOLD GRANTOR HARMLESS FROM ALL LOSSES, CLAIMS, SUITS, ACTIONS, DAMAGES AND LIABILITIES, INCLUDING CLAIMS OF STRICT LIABILITY, (INCLUDING COSTS AND EXPENSES OF DEFENDING AGAINST THE AFORESAID) ARISING (OR ALLEGED TO ARISE) FROM ANY INJURY, DEATH OR DAMAGE OR LOSS OF GRANTEE, ITS EMPLOYEES, CUSTOMERS AND INVITEES. ARTICLE XII. Damage or Destruction of Premises 12.01. Subject to termination, as described in this section, no damage to the Premises or damage to or destruction of any Improvements shall in any way alter, affect or modify Grantee's obligations hereunder, including specifically Grantee's obligations to pay Rent, Taxes and other [mancial obligations hereunder. In the event of any damage to the Premises which will exceed the cost of One Thousand and NollOO Dollars ($1,000.00) per event to repair, Grantee shall give written notice to Grantor within seven (7) calendar days of the damage or destruction, including a description of the damage and, as far as known to Grantee, the cause of the damage. Grantee shall immediately remove all debris resulting from such damage or destruction and take such action as is necessary to place the Premises in a neat, safe condition. Within ninety (90) days after the event causing the damage or destruction, Grantee must either repair or replace the Improvements of, if permitted by law, or return the Premises to their natural condition. Grantee's failure to satisfy its obligations in this regard is an Event of Default hereunder. Grantor may make repairs or replacements pursuant to this section, whereupon Grantee shall be liable to pay Grantor, upon demand, the cost and expense incurred by Grantor in accomplishing such action. Any failure by Grantee to make such payment to Grantor may be treated by Grantor as a default in the payment of Rent due and owing by Grantee hereunder. ARTICLE XIII. Condemnation 13.01. In the event of a condemnation proceeding that affects all or part of the Premises, Grantor will have the exclusive authority to negotiate with the condemning authority. In the event of (i) a total condemnation, this Easement shall terminate, and (ii) a partial condemnation, Grantor may decide whether or not to terminate this Easement, but if Grantor elects to continue the Easement, the Rent will be proportionately reduced. All condemnation proceeds shall be payable to Grantor. ARTICLE XIV. Encumbrance of Easement Interest 14.01. Grantee may not mortgage, hypothecate, encumber or grant any deed of trust or mortgage covering the easement interest created under this Easement or any interest therein or any Improvements thereon nor may Grantee collaterally assign any rent or other income. Grantee will, prior to or upon tender of the Premises to Grantor upon expiration or termination of this Easement, provide Grantor with documentation sufficient to evidence Grantor's ownership of all such alterations, additions and Improvements. ARTICLE XV. Default 15.01. Each ofthe following acts or omissions of Grantee or occurrences shall constitute an "Event of Default": (a) failure or refusal by Grantee to timely pay Rent or any other sum when due hereunder; (b) failure or refusal by Grantee to comply with the obligations of Grantee set forth in Article VI of this Easement; CE20050145 lsouthar 6 newce.doc V3.2 (c) failure or refusal by Grantee to timely perform or observe any other covenant, duty or obligation of Grantee under this Easement; provided, however, notwithstanding the occurrence of such Event of Default, Grantor shall not be entitled to exercise any of the remedies provided for in this Easement or by law unless such Event of Default continues beyond the expiration of thirty (30) days following notice to Grantee of such Event of Default; (d) abandonment or vacating of the Premises or any significant portion thereof; ( e) the entry of an order of liquidation, reorganization or adjustment of debts in bankruptcy or similar order affecting Grantee; and (t) the entry of a court order requiring the dissolution, winding up, or termination of Grantee's business affairs. 15.02. This Easement and the term and estate hereby granted and the demise hereby made are subject to the limitation that if and whenever any Event of Default shall occur, after such notice, if any, as is provided in Section 16.01, Grantor may, at its option, in addition to all other rights and remedies provided hereunder or in law or equity, do anyone or more of the following: (a) forfeit this Easement by sending written notice of such forfeiture by United States Mail to the last known address of Grantee in the files of Asset Inspection of the General Land Office, in which event, this Easement shall terminate and Grantee shall immediately surrender possession of the Premises to Grantor (and termination shall not prejudice the rights of Grantor for any claim of payments due); (b) enter upon and take possession of the Premises and expel or remove Grantee and any other occupant therefrom, with or without having terminated the Easement; or ( c) alter locks and other security devices, if any, at the Premises. 15.03. Exercise by Grantor of anyone or more remedies hereunder granted or otherwise available shall not (i) be deemed a waiver by Grantor of any other remedy available to it, or (ii) be deemed to be an acceptance of surrender of the Premises by Grantee, whether by agreement or by operation of law. 15.04. In the event of termination of this Easement or of Grantee's right to possession of the Premises or repossession of the Premises for an Event of Default, Grantor shall not have any obligation to seek a new use for the Premises, or any portion thereof, or to collect rental for a new use (if any); but Grantor shall have the option to seek a new use for the Premises, and in the event of a new use, Grantor may grant and easement across or otherwise dispose of an interest in the whole or any portion of the Premises for any period, to any grantee, and for any use and purpose. ARTICLE XVI. Notice 16.01. Any notice which mayor shall be given under the terms of this Easement shall be in writing and shall be either delivered by hand or sent by United States Registered or Certified Mail, adequate postage prepaid, if for Grantor to the General Land Office, Deputy Commissioner, Asset Inspection, addressed to his attention, 1700 North Congress Avenue, Austin, Texas 78701-1495, and if for Grantee, to it at City of La Porte, P.O. Box 1115, La Porte, TX 77572- 1115. Either party's address may be changed from time to time by such party by giving notice as provided above, except that the Premises may not be used by Grantee as the sole notice address. ARTICLE XVII. Non-Waiver 17.01. Neither acceptance of Rent or any other sums payable by Grantee hereunder, or any portion of either, nor failure by Grantor to complain of any action, non-action or default of Grantee shall constitute a waiver as to any breach of any covenant or condition of Grantee contained herein nor a waiver of any of Grantor's rights hereunder. ARTICLE XVIII. Holdover 18.01. If Grantee holds over and continues in possession of the Premises after expiration of the term of this Easement, Grantee will be deemed to be occupying the Premises on the basis of a month-t<r-month tenancy subject to all of the terms and conditions of this Easement, except that as liquidated damages by reason of such holding over, the amounts CE20050 145 Isouthar 7 newcedoc V3.2 payable by Grantee under this Easement shall be increased such that the Rent and other sums payable hereunder shall equal two hundred percent (200%) of the amount(s) payable immediately prior to Grantee's holdover. 18.02. The above-described tenancy from month-to-month may be terminated by either party upon thirty (30) days written notice to the other. ARTICLE XIX. Terminology and Miscellaneous 19.01. With respect to terminology in this Easement, each number (singular or plural) shall include all numbers, and each gender (male, female or neuter) shall include all genders. If any provision of this Easement shall ever be held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions of the Easement, but such other provisions shall continue in full force and effect. 19.02. The titles of the Articles in this Easement shall have no effect and shall neither limit nor amplify the provisions of the Easement itself. This Easement shall be binding upon and shall accrue to the benefit of Grantor, its successors and assigns, Grantee, its successors and assigns (or heirs, executors, administrators and assigns, as the case may be). 19.03. In any circumstances where Grantor is permitted to enter upon the Premises during the Easement term, whether for the purpose of curing any default of Grantee, repairing damage resulting from fire or other casualty or an eminent domain taking or is otherwise permitted hereunder or by law to go upon the Premises, no such entry shall constitute an eviction or disturbance of Grantee's use and possession of the Premises or a breach by Grantor of any of its obligations hereunder or render Grantor liable for damages for loss of business or otherwise or entitle Grantee to be relieved from any of its obligations hereunder or grant Grantee any right of off-set or recoupment or other remedy; and in connection with any such entry incident to performance of repairs, replacements, maintenance or construction, all of the aforesaid provisions shall be applicable notwithstanding that Grantor may elect to take building materials in, to or upon the Premises that may be required or utilized in connection with such entry by Grantor. 19.04. Time is of the essence of this Easement. 19.05. The obligation of Grantee to pay all Rent and other sums hereunder provided to be paid by Grantee and the obligation of Grantee to perform Grantee's other covenants and duties hereunder constitute independent, unconditional obligations to be performed at all times provided for hereunder. 19.06. Under no circumstances whatsoever shall Grantor ever be liable hereunder for consequential damages or special damages. 19.07. All monetary obligations of Grantee are performable exclusively in Austin, Travis County, Texas. 19.08. Grantee hereby acknowledges that late payment by Grantee to Grantor of Rent or any other sums due under this Easement will cause Grantor to incur various expenses not contemplated by this Easement, the exact amount of which are presently difficult to ascertain. Accordingly, if any payment of Rent, or any other sum due from Grantee under this Easement shall not be received by Grantor when due, then, in addition to such required payment, Grantee shall also pay to Grantor a "Late Charge" equal to ten cents ($.10) for each One Dollar ($1.00) so past due. Grantor and Grantee agree that such Late Charge represents a fair and reasonable estimate of the expenses that Grantor will incur by reason of such late payment by Grantee. Acceptance of such Late Charge by Grantor shall not constitute a waiver of Grantee's default with respect to any such past due amounts, nor prevent Grantor from exercising any other rights and remedies granted to Grantor under this Easement or at law or in equity. Such Late Charge shall constitute additional rental payable by Grantee under this Easement and is in addition to, and separate from, the Rent and other charges payable under this Easement by Grantee. CE20050145 lsouthar 8 newce.doc V3.2 19.09. Grantee shall, prior to the expiration of thirty (30) days after the date of this Easement, record in the Real Property Records of Chambers County, Texas at Grantee's sole cost and expense, and return either the original or a file-marked copy of the original Memorandum of Coastal Easement. In the event Grantee fails to do so prior to the expiration of such thirty (30) day period, Grantor may declare such failure an "Event of Default", without the necessity of notice to Grantee, or execute a Memorandum of Easement setting forth the terms and provisions of the Easement and record same at Grantee's cost and expense. In the event Grantor elects to record a Memorandum of Easement, the cost of recording same shall be deemed "Rent". ARTICLE XX. Grantee's Bankruptcy 20.01. Grantor and Grantee agree that if Grantee ever becomes the subject of a voluntary or involuntary bankruptcy or other similar type proceeding under the Federal Bankruptcy Laws, then "adequate protection" of Grantor's interest in the Premises pursuant to the provisions of Sections 361 and 363 of the Bankruptcy Code prior to assumption and/or assignment of the Easement by Grantee shall include, but not be limited to the following: (a) The continued payment by Grantee of all Rent and all other sums due and owing under this Easement; and (b) the furnishing of a security deposit by Grantee in the amount of three (3) times the Rent payable during the immediately preceding Easement Year. Further, in that circumstance, Grantor and Grantee agree that "adequate assurance of future performance" by Grantee and/or any assignee of Grantee pursuant to Bankruptcy Code Section 365 (or its successor section) will include (but not be limited to) payment of a security deposit in the amount of three (3) times the Rent paid during the immediately preceding Easement Year. 20.02. If this Easement is assigned to any person or entity pursuant to the provisions ofthe Bankruptcy Code, any and all monies or other considerations payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Grantor, shall be and remain the exclusive property of Grantor and shall not constitute property of Grantee or the Estate of Grantee within the meaning of the Bankruptcy Code. Any and all monies or other considerations constituting Grantor's property under the preceding sentence not paid or delivered to Grantor shall be held in trust by Grantee for the benefit of Grantor and shall be promptly paid to or turned over to Grantor. ARTICLE XXI. Reservation from Easement 21.01. To the extent not previously conveyed, Grantor reserves unto itself, its successors and assigns all right, title, and interest in and to all oil, gas, and other minerals in, on, or under the Premises. ARTICLE XXII. Entire Agreement 22.01. This Agreement, CE20050145, plus exhibits constitutes the entire agreement between Grantor and Grantee; no prior written or prior or contemporaneous oral promises or representations shall be binding. The submission of this Easement for examination by Grantee and/or execution thereof by Grantee does not constitute a reservation of or option for the Premises and this Easement shall become effective only upon execution of all parties hereto and delivery of a fully executed counterpart hereof by Grantor to Grantee. This Easement shall not be amended, changed or extended except by written instrument signed by both parties hereto. CE20050145 Isouthar 9 newce.doc V3.2 IN TESTIMONY WHEREOF, witness my hand and the Seal of Office. GRANTOR: THE STATE OF TEXAS By: JERRY E. PATTERSON Commissioner, General Land Office Chairman, School Land Board Date: GRANTEE: City of Lr\~rte. ~ ------" By: U~ ~-r t~ (Signature) A L'tl5)rJ b, (JD Itr&tL \ f1;tA VO,e.... (Printed Name and Title) - Date: J~ v NED S APPROVED: Contents: lev ~ Legal: Deputy: Executive: CE20050145 Isouthar 10 newce.doc V3.2 ~""'~ ,i ~ ~ "J. ::,:,,., II ~ c'.," ~ ..... 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II ~""J -123 ;;0 " ,121 ~' __:...,J~ '" ~~,' \,'," ::'\ ":' ":, ' \~' 125~ ~ :1:' t" ~ @ i1'tt ~'h; ,> CE20050145 ~ ~',~ ,\',;:,- I I y! ,~', "~;0J}':" ' )~ -) AI ~';;;7- '" . iBaM$.lt:ld~ ',~ Q 'JerI8'Be'T,_ !XI .,\. .'-r2,it ,~.'" _ , ..r\~),c, ,~ , ': 126-- <"~~ :If - 6;" ;'~NR 210'C\r A\~. :~ 211 ~ ~ 215 ' ~;'w o (j' A ili~ \.5~r , ,'-, "'JZ1l~ c- '. ~, ~ ~g~'~' ~~b 216 Title: City of LaPorte, CE20050145 Date of Inspection: 02118/05 Scale: 1 in. = 6,500 ft. Created by: Wes Padgett Texas General Land Office Ext:ibit A Title: City of LaPorte, CE20050145 Date of Inspection: 02118/05 Scale: 1 in. = 150 ft. Created by: Wes Padgett - . Texas General Land Office Ex;-,it-it B ,:>:.. Q;l( f ~ ...~ :.' ~"~~.!p :....~~~.- ~~ 'f!:;...iJ. ...~ fa II a - Iii g rJJ Galveston Bay State Tract 123 ffi i i1i . 91 ~ .tii ~~ ~ .a. 3NI1HOl.VW o -- >- en OJ OJ 2: U ::::l cen ~ ~ 3: (]) o"E ...J::::l .I mc 3: 51 .. c Ol.s:::; ~ 0 0"" ...J ffi I .91 ~ ~ L. .V.3NI1I-[UVW I I .. " I L"J" ~~ i" .. " Oil) i1ilri 2 I. 3~ a1-J .w ~~ Q. Title: City of LaPorte, CE20050145 Scale: 1 inch equals 60 feet Texas General Land Office I!' 5'1 I Date of Inspection: 02118/05 Creat'?d by: v\"es 'Padgett Exhihi'; C~ I Galveston Bay State Tract 123 /"-~ fV'f ANCIIOIl T.II.IL EL.-1lU1li SCALE: 1- :: 401 4: ;:. Lot 19, W.B. Lowrence SID, - Johnson Hunter Survey w z :J J: o I- <( ~ 7.0 ~ Approximate State Boundary PROP. BULKHEAD TOP ELEV. ::: 5.5' Title: City of LaPorte, CE20050145 Scale: 1 inch equals 40 feet Texas General Land Office Date of Inspection: 02118/05 Created bv: WesPadgett . . , Exhihi~ Cr~ Galveston Bay State Tract 123 ;~~;5..'::; . :i ~~v~"" .0""'. ". .;:. c; ;: t.. :-: :.-:: .~..~.~:;A ..:....,,:..1l <' .. M....,r-. ,:+ SCALE: 1- = 40' Lot 19, W.B. Lowrence SID, Johnson Hunter Survey 6.0 .. 4: It w z :J ::r: o !( :! 4.0 Title: City of LaPorte, CE20050145 Date of Inspection: 02118/05 Scale: 1 inch equals 40 feet Creat~d by: V\.'esPadtJ,~tt Exhihl:; Cr-3 Texas General Land Office Galveston Bay State Tract 123 Opening in breakwater for engress and egress Title: City of LaPorte, CE20050145 Scale: 1 inch equals 40 feet Texas General Land Office Date of Inspection: 02118/05 Creat~d hy: V'I.'csradoett Exhini~ C~4 SCALE: 1- = 401 Looking along shoreline of southern tidal pool looking to the northeast. View along shoreline looking to the northeast from the mid point of the southern tidal pool Title: City of PaPorte, CE200S014S Date of Inspection: 02/18/05 Texas General Land Office Created by: Wes Padgett View of Spartina stand at northern end of the property looking to the northeast. View of Spartina stand at northern end of the property looking to the northeast. Title: City of PaPorte, CE20050145 Date of Inspection: 02/18/05 Texas General Land Office Created by: Wes Padgett