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Home My WebLink About2008-09-22 Regular Meeting and Public Hearing of La Porte City Council 5 -- - - - A MINUTES OF A REGULAR MEETING, EMERGENCY MEETING AND PUBLIC HEARING OF THE LA PORTE CITY COUNCIL SEPTEMBER 22, 2008 1. Call to order The meeting was called to order by Mayor Porter at 6:00 p.m. Members of City Council Present: Mayor Porter, Mayor Pro-Tern Mike Clausen, Council members Tommy Moser, Mike Mosteit, Louis Rigby, John Black, Howard Ebow and Georgia Malone. Members of Council absent: Chuck Engelken Members of City Executive Staff and City Employees Present: City Manager Ron Bottoms, City Attorney Knox Askins, Assistant City Attorney Clark Askins, City Secretary Martha Gillett, Police Chief Kenith Adcox, Assistant City Manager John Joerns, Finance Director Michael Dolby, Director of Public Works Steve Gillett, Fire Chief Mike Boaze, Assistant Fire Chief Donald Ladd, Purchasing Manager Susan Kelley, Economic Development Coordinator Gretchen Larson, Emergency Management Coordinator Jeff Suggs, GIS Manager Brian Sterling, City Planner Masood Malik, City Engineer Rodney Slaton, Administrative Assistant Tammy Kannarr, Emergency Management Assistant Kristin Gauthier, Tax Manager Kathy Powell, Multi-Media Technician Lyle Cain, EMS Chief Ray Nolen, Director of Parks & Recreation Stephen Barr, Director of Planning Tim Tietjens, and a number of other employees. Others present: Adam Yanelli of the Bayshore Sun, Alan Neel, Phillip Hoot, Brent Heckendorn, Barry Beasley, David Janda, Gabe Vasquez, Donna Weisey, Karen Rigby and a number of citizens. 2. Alan Neel of Life Community Church led the invocation. 3. Mayor Porter led the Pledge of Allegiance. 4. Presentations/ Proclamations There were none. 5. Consent Agenda A. Council to consider approving minutes of the Regular Meeting, Public Hearing and Workshop Meeting of the La Porte City Council held on August 25, 2008 (Tabled at the September 8, 2008 Council Meeting), Regular Meeting and Workshop Meeting for La Porte City Council held on September 8, 2008 and the Emergency City Council Meeting held on September 18, 2008 - M. Gillett Minutes of Regular Meeting, Emergency Meeting and Public Hearing September 22, 2008 Page 2 B. Council to consider approval or other action regarding award of bid for RFP #08- 512 for Janitorial Services - S. Kelley C. Council to consider approval or other action authorizing the purchase of excavator from Hi-Way Equipment through H-GAC - S. Kelley D. Council to consider approval or other action authorizing the City Manager to execute a contract with Cobb, Findley and Associates, Inc. to provide professional engineering services for concrete street replacement, waterline replacement and asphalt overlay - S. Gillett E. Council to consider approval or other action authorizing the City Manager to execute a contract with Mar-Con Services, LLC to reroute the water services in the Spenwick area (Bid No. 08020) - S. Gillett F. Council to consider approval or other action regarding an ordinance amending Chapter 6 of the Code of Ordinances of the City of La Porte by approving an Alcohol Permit for Bullritos No.1, LLC for use at 2617 Underwood Road (Ord. 1000-1-T) - M. Gillett G. Council to consider approval or other action authorizing the City Manager to execute a contract with the Port of Houston Authority for supplemental fire protection services (Ord. 3113) - D. Ladd H. Council to consider approval or other action authorizing the City Manager to execute a contract with the City of Morgan's Point for Emergency Dispatch, Jail, Fire Protection, and Emergency Medical Services (Ord. 3114) - D. Ladd I. Council to consider approval or other action authorizing the City Manager to execute a contract with the Port of Houston Authority for Emergency Medical Services (Ord. 3115) - R. Nolen City Manager Ron Bottoms asked that Item "B" of the consent agenda be pulled. Motion was made by Councilmember Riqby to approve the consent aqenda with the exception of item B. Councilmember Malone seconded the motion. The motion carried. Ayes: Mosteit, Ebow, Moser, Rigby, Clausen, Malone, Black and Porter. Nays: None Absent: Engelken Abstain: None 6. Petitions, Remonstrance's, Communications, Citizens and Tax Payers wishing to address Council- (Limited to five minutes) John Kerbey - Arson at his home Mr. Kerbey was not present to speak on this matter. Minutes of Regular Meeting, Emergency Meeting and Public Hearing September 22,2008 Page 3 Lyle Cain - encouraged the City to set up an evacuation plan for employees with special needs. John Strange - Addressed the Mayor and Council regarding the lack of information provided through the City's website during Hurricane "IKE", he suggested that information provided not be given in PDF form. He volunteered his help if the city could use it. Item A of the Executive Session was taken out of order at this time. Council retired into Executive Session at 6:14 p.m. Council adjourned Executive Session at 6:54 p.m. and reconvened the Regular Meeting at 6:55 p.m. No action was taken. 7. Public Hearing - Council to consider recommendation of Planning and Zoning Commission regarding Special Conditional Use Permit (SCUP) Request #SCU08-007 for proposed 41 unit addition to Parsons House located at 8727 Fairmont Parkway - (Ord. 1501-J6) - T. Tietjens Open Public Hearing - Mayor Porter opened the Public Hearing at 6:56 p.m. City Planner Masood Malik provided staff overview. Public comments: Phillip Hoot - 927 Seabreeze, la Porte, Texas - informed the City Council he is in favor of this project. Craig Puccetti, a representative from Parsons House explained the project expansion and encouraged Council to approve the Special Conditional Use Permit. The Public Hearing was closed at 7:00 p.m. Recommendation of the Planning and Zoning Commission - recommended City Council to approve the Special Conditional Use Permit (SCUP) Request #SCU08-007 for proposed 41 unit addition to Parsons House located at 8727 Fairmont Parkway. He noted improvements that will be made and the number of beds increased. 8. Council to consider approval or other action regarding Ordinance 1501-J6 Assistant City Attorney Clark Askins read Ordinance 1501-J6, AN ORDINANCE AMENDING THE CODE OF ORDINANCES OF THE CITY OF LA PORTE, CHAPTER 106, BY GRANTING A SPECIAL CONDITIONAL USE PERMIT #SCU08-007 FOR THAT CERTAIN PARCEL OF LAND DESCRIBED AS FOllOWS, TO WIT: DESCRIBED AS 5.637 ACRE TRACT OUT OF W.M. JONES SURVEY, ABSTRACT NO. 482, LA PORTE, Minutes of Regular Meeting, Emergency Meeting and Public Hearing September 22, 2008 Page 4 HARRIS COUNTY, TEXAS, FOR ADDITIONAL 41 UNITS TO EXISTING SENIOR CITIZEN ASSISTED LIVING FACILITY, LOCATED AS 8727 FAIRMONT PARKWAY, WITHIN THE MEDIUM DENSITY RESIDENTIAL (R-2) ZONE; MAKING CERTAIN FINDINGS OF FACT RELATED TO THE SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE HEREOF; Mayor noted Councilmember Engelken was in support of the project. Motion was made by Councilmember Clausen to approve Ordinance1501-J6 as presented by Mr. Tietiens. Councilmember Black seconded the motion. Motion carried. Ayes: Mosteit, Clausen, Rigby, Moser, Black, Malone, Ebow and Porter. Nays: None Abstain: None Absent: Engelken *An Emergency Meeting item was discussed at 7:05 p.m. A report was received on Hurricane IKE recovery efforts. Gabe Vasquez of Judge Emmett's Office and FEMA Program Specialist Donna Weisey explained procedures and requirements in order to receive Federal Assistance in the aftermath of Hurricane "IKEn. They encouraged citizens to register with FEMA no matter how small the damage to their property was. They explained that they must follow the codes and meet local building requirements. They are in the process of setting up a Disaster Recovery Center in La Porte, but the closest one at this time is at Ellington Field. In addition they are currently working on plans for a temporary housing task force. They brought several informational sheets including brochures on the Blue Roof Program. City Manager Ron Bottoms asked if citizens who were tearing damaged materials from their home would be covered by reimbursements. The representative said he would get back to him with an answer. Council adjourned the Emergency Meeting and resumed the Regular Meeting and Public Hearing Meeting at 7:33 p.m. 9. Public Hearing - Council to consider recommendation of Planning and Zoning Commission to approve Special Conditional Use Permit (SCUP) Request #SCU08-006 for off-site parking for NAPA auto parts store located at 518 W. Main Street - (Ord. 1501-K6) - T. Tietjens Open Public Hearing - Mayor Porter opened the Public Hearing at 7:34 p.m. City Planner Masood Malik provided staff overview. Public comments: Minutes of Regular Meeting, Emergency Meeting and Public Hearing September 22, 2008 Page 5 Phillip Hoot, 927 Seabreeze, La Porte, Texas thanked the officers for being professional. Stated he approved the project overall but had concerns with restraints being placed on businesses. Brent Heckendorn, would like to receive a facade grant. He said he would rather spend any extra on extending his parking lot at this time. The Public Hearing was closed at 7:45 p.m. Recommendation of the Planning and Zoning Commission - Recommended City Council approve the Special Conditional Use Permit (SCUP) Request #SCU08-006. 10. Council to consider approval or other action regarding an ordinance amending Chapter 106 of the Code of Ordinances of the City of La Porte by granting a Special Conditional Use Permit (SCUP) Request #SCU08-006 for off-site parking for NAPA auto parts store located at 518 W. Main Street. Assistant City Attorney Clark Askins read Ordinance 1501-K6, AN ORDINANCE AMENDING THE CODE OF ORDINANCES OF THE CITY OF LA PORTE, CHAPTER 106, MORE COMMONLY REFERRED TO AS THE ZONING ORDINANCE OF THE CITY OF LA PORTE, BY GRANTING A SPECIAL CONDITIONAL USE PERMIT SCU08-006 FOR THAT CERTAIN PARCEL OF LAND DESCRIBED AS FOLLOWS, TO WIT: BEING 0.35 ACRE PARCEL OF LAND AS LOTS 24-29, BLOCK 55, TOWN OF LA PORTE, JOHNSON HUNTER SURVEY, ABSTRACT NO. 35, LA PORTE, HARRIS COUNTY, TEXAS, FOR OFF-SITE PARKING IN THE MAIN STREET DISTRICT (MSD) ZONE; MAKING CERTAIN FINDINGS OF FACT RELATED TO THE SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE HEREOF; Motion was made by Councilmember Moser to approve Ordinance 1501-K6 as presented by Mr. Tietiens. Councilmember Mosteit seconded the motion. Motion carried. Ayes: Mosteit, Clausen, Rigby, Moser, Black, Malone, Ebow and Porter. Nays: None Abstain: None Absent: Engelken 11. Council to consider approval or other action regarding a resolution prohibiting the issuance of new building permits within the areas designated for right-of-way acquisition associated with F216 Phase II Watershed Improvements (Res. 2008-11) - 1. Tietjens Planning Director Tim Tietjens presented summary and recommendation and answered Councils'; questions, also provided an additional map. Assistant City Attorney Clark Askins read Resolution 2008-11, A RESOLUTION PROHIBITING THE ISSUANCE OF BUILDING PERMITS WITHIN AN AREA DESIGNATED FOR RIGHT-OF-WAY ACQUISITION ASSOCIATED WITH HARRIS Minutes of Regular Meeting, Emergency Meeting and Public Hearing September 22, 2008 Page 6 COUNTY FLOOD CONTROL DISTRICT PROJECT F216-00-00 PHASE II WATERSHED IMPROVEMENTS; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE HEREOF. Motion was made by Council member Mosteit to approve Resolution 2008-11 as presented by Mr. Tietiens. Councilmember Malone seconded the motion. Motion carried. Ayes: Mosteit, Clausen, Rigby, Moser, Black, Malone, Ebow and Porter. Nays: None Abstain: None Absent: Engelken 12. Council to consider approval or other action regarding an ordinance awarding the bid in the amount of $121,230.68 to Teamwork Construction for linear connectively amenities in the "E" Street ROW (Ord. 3116) - T. Tietjens Planning Director Tim Tietjens presented summary and recommendation and answered Councils' questions. Assistant City Attorney Clark Askins read Ordinance 3116, AN ORDINANCE APPROVING AND AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF LA PORTE AND TEAMWORK CONSTRUCTION LINEAR CONNECTIVITY AMMENITIES IN THE "E" STREET ROW; APPROPRIATING $121,230.68 TO FUND SAID CONTRACT; MAKING VARIOUS FINDINGS AND PROVISIONS RELATING TO THE SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; PROVIDING AN EFFECTIVE DATE HEREOF. Motion was made by Councilmember Moser to approve Ordinance 3116 as presented by Mr. Tietiens. Councilmember Malone seconded the motion. Motion carried. Ayes: Mosteit, Clausen, Rigby, Moser, Black, Malone, Ebow and Porter. Nays: None Abstain: None Absent: Engelken 13. Council to consider approval or other action regarding a Resolution for acceptance of the Harris County Tax Appraisal Roll (Res. 2008-08) - M. Dolby Finance Director Michael Dolby presented summary and recommendation and answered Councils' questions. Assistant City Attorney Clark Askins read Resolution 2008-08, A RESOLUTION OF THE CITY OF LA PORTE, TEXAS, ADOPTING THE 2008 APPRAISAL ROLL OF THE HARRIS COUNTY APPRAISAL DISTRICT. Motion was made by Councilmember Riqby to approve Resolution 2008-08 as presented by Mr. Dolby. Councilmember Malone seconded the motion. Motion carried. Minutes of Regular Meeting, Emergency Meeting and Public Hearing September 22, 2008 Page 7 Ayes: Mosteit, Clausen, Rigby, Moser, Black, Malone, Ebow and Porter. Nays: None Abstain: None Absent: Engelken 14. Council to consider approval or other action regarding an Ordinance establishing the tax rate for Fiscal Year 2008-09 at .71 cents per hundred dollar valuation. (Ord. 3102) - M. Dolby Finance Director Michael Dolby presented summary and recommendation and answered Councils' questions. Assistant City Attorney Clark Askins read Ordinance 3102, AN ORDINANCE LEVYING TAXES UPON TAXABLE PROPERTY LOCATED WITHIN AND SUBJECT TO TAXATION IN THE CITY OF LA PORTE, TEXAS; MAKING APPROPRA TIONS FOR SUPPORT, MAINTENANCE, AND IMPROVEMENT OF THE CITY GOVERNMENT OF SAID CITY OF LA PORTE; FINDING THAT ALL REQUIRED NOTICES HAVE BEEN PUBLISHED AND ALL REQUIRED HEARINGS HELD; CONTAINING A REPEALING CLAUSE; CONTAINING A SEVERABILITY CLAUSE; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE HEREOF. Motion was made by Councilmember Ebow to approve Ordinance 3102 as presented by Mr. Dolby. Councilmember Clausen seconded the motion. Motion carried. Ayes: Mosteit, Clausen, Moser, Rigby, Black, Malone, Ebow and Porter. Nays: None Abstain: None Absent: Engelken 15. Council to consider approval or other action approving an Ordinance authorizing the City to impose its own limit on the TMRS contribution rate (Ord. 3117) - M. Dolby Finance Director Michael Dolby presented summary and recommendation and answered Councils' questions. Assistant City Attorney Clark Askins read Ordinance 3117, AN ORDINANCE ELECTING FOR THE CITY OF LA PORTE, TEXAS TO MAKE CURRENT SERVICE AND PRIOR SERVICE CONTRIBUTIONS TO THE CITYS' ACCOUNT IN THE MUNICIPAL ACCUMULATION FUND OF THE TEXAS MUNICIPAL RETIREMENT SYSTEM AT THE ACTUARIALLY DETERMINED RATE OF TOTAL EMPLOYEE COMPENSATION. Motion was made by Councilmember Black to approve Ordinance 3117 as presented by Mr. Dolby. Councilmember Mosteit seconded the motion. Motion carried. Ayes: Mosteit, Clausen, Moser, Black, Malone, Ebow and Porter. Nays: None Minutes of Regular Meeting, Emergency Meeting and Public Hearing September 22, 2008 Page 8 Abstain: Rigby Absent: Engelken 16. Council to consider approval or other action regarding a Resolution appointing a representative and an alternate to the H-GAC 2009 General Assembly and Board of Directors (2008-12) - Porter Mayor Porter presented summary and recommendation and answered Councils' questions. Assistant City Attorney Clark Askins read Resolution 2008-12, BE IT RESOLVED BY THE CITY OF LA PORTE, TEXAS THAT THAT FOLLOWING BE AND ARE HEREBY DESIGNATED AS THE REPRESENTATIVE AND ALTERNATE OF THE GENERAL ASSEMBLY OF THE HOUSTON-GALVESTON AREA COUNCIL FOR THE YEAR 2009. Motion was made by Councilmember Mosteit to approve the recommendation by Mayor Porter by appointinQ Council member Enqelken as the Representative and Councilmember Clausen as Altemate for the 2009 H-GAC General Assembly and Board of Directors. Councilmember Malone seconded the motion. Motion carried. Ayes: Mosteit, Clausen, Rigby, Moser, Black, Malone, Ebowand Porter. Nays: None Abstain: None Absent: Engelken 17. Council to consider to approve or other action requesting nominations for NLC Board and NLC Committees - Porter No action was taken on this item, Council wishes to bring it back on the on the October 13, 2008 agenda. 18. Council to consider a date for the next Drainage and Flooding Committee Meeting - M. Mosteit The next Drainage and Flooding Committee meeting was set for Monday, October 13, 2008 at 5:00 p.m. 19. City Manager Ron Bottoms provided Administrative Report after the following staff reports were given: City Manager Ron Bottoms reported that the La Porte-Chamber of Commerce events listed as items A and B under Administrative Reports on the agenda have been postponed until a future date. Public Works Director Stave Gillett reported on the status of cleanup from Hurricane "IKE": ,egular Meeting, Emergency Meeting and Public Hearing September 22, 2008 Page 9 ~ The main focus throughout this time has been "utilities". ~ The water system maintained throughout the storm, but three water plants are down at this time ~ Eight out of the forty-one lift stations within the city are still not operational. ~ Garbage pickup has been on its regular schedule since last Monday. ~ 7000 cubic yards of brush has been removed and they will begin removing construction and demolition debris and other appliances destroyed in the storm. Emergency Management Coordinator Jeff Suggs reported: ~ Eighty persons were evacuated from the city by bus and fifteen by ambulance, and they are in process of retuming at this time. He is working on paperwork for reimbursements from FEMA. ~ He is working on changes required to insure that the website continues to function during severe storms. ~ Red Cross has set up a shelter at the Bayshore Baptist Church. He continues to work on housing issues for those who have been displaced. ~ Reported that priority restoration list isn't being used by CenterPoint, and that 40% of citizens within the city are still without power. ~ He is looking for assistance for the Ministerial Alliance to help with a DRC (Disaster Relief Center) if needed. ~ They supported five (5) other cities in their disaster relief efforts. ~ Received a great amount of help and support from industry. EMS Chief Ray Nolen reported: ~ EMS Staff worked twelve hour shifts while assisting with the coordination the evacuation of nursing homes and bed ridden patients from residents, done with State provided ambulances. ~ Assisted in the rescue of two individuals with minor injuries on South Broadway then transported to Baker Junior High school where a temporary medical holding facility was set up. ~ Vaccinated 50 employees for tetinus. ~ Ran a total of 117 calls from Thursday before the storm until Sunday night September 21. ~ Submitted a health advisory to the Bayshore Sun. Director of Parks and Recreation Stephen Barr reported: ~ Recreational staff has two buildings operational at this time. ~ Reported building damage at the following locations: Evelyn Kennedy Center, Sylvan Beach Pavilion, Senior Building. ~ All events scheduled through November 2008 at the Sylvan Beach Pavilion have been cancelled and will receive refunds. ~ Mayor noted that Harris County is doing assessments on the damages at the Pavilion. ~ Special Programs Center will open after mold is removed. Minutes of Regular Meeting, Emergency Meeting and Public Hearing September 22, 2008 Page 10 ~ Fishing pier was completely destroyed. ~ Jennie Riley Community Center has roof damage. ~ Pier at Seabreeze Park has damage but is repairable. Assistant Fire Chief Donald Ladd reported: ~ Jimmy Crate (volunteer) wired the building for EOC for additional AC and generators at Baker Junior High. ~ Moved personnel from Station four to Station three, because the building might not be habitable during storm. ~ They assessed damages during the eye of the storm and noted some flooding in south part of town. ~ Launched boats for rescuing of citizens in Shoreacres and Shady River. ~ Set up four (4) A TV's brought in by volunteers to access the areas south of town. ~ They helped clear off roads by using tractors, cleaned out gutters, and helped clear debris from ditches. ~ Has one Fire Station running on a generator at this time. ~ Reported damage to Fire Station 1 (water damage). ~ Had approximately 100 calls, one of which was a retired Firefighter Mr. John Goff, who didn't survive. ~ He commended all the departments on how well everyone pulled together and helped each other out. Police Chief Kenith Adcox reported: ~ He was very impressed with La Porte Staff during preparation, initial responses and post Hurricane "IKE". ~ Police Department was working twelve hours shifts. ~ They helped with the evacuation of some citizens. ~ They had eighteen fixed traffic control points, due to the dangerous state of the city at that time. ~ Additional staff has been provided since all the power outages. ~ Sealed city off when it was dangerous to be here, due to fallen trees, debris and downed power lines. ~ Said that the curfew hours set were helpful in keeping people off the streets. ~ Reported eight (8) crimes in a total of five (5) days. ~ No looting was reported. Director of Planning Department Tim Tietjens reported: ~ Impressed with the staff working together during recovery and assessment. ~ He distributed a preliminary damage assessment report. ~ Planning Department was open over the weekend for contractor registry permit issues. (80 contractors at this time have registered) ~ They will be seeking a professional team to conduct assessment interviews. ~ Helped implement the City's Emergency Declaration. Minutes of Regular Meeting, Emergency Meeting and Public Hearing September 22, 2008 Page 11 City Manager Ron Bottoms reported: ~ Is proud of the way the entire staff handled the situation. ~ Commended the school district for helping with food and shelters, had approximately forty volunteers. ~ Thanked the Building Department for a job well done and for keeping the office open on the weekends. ~ Thanked Susan Kelley for the great job she did cooking for them at EOC. 20. Council Comments - Ebow, Mosteit, Clausen, Rigby, Moser, Black, Malone, and Mayor Councilmember Ebow said he was very proud of the staff and the way they handled this emergency. Council member Mosteit both praised the staff for their jobs they performed before, during and after the storm. Said that the city would be receiving some criticism for not allowing citizens back into the city. Wanted to extend his sympathy to those who suffered property damage and that are still without power. Councilmember Clausen was impressed with the call-out system, and praised the staff. He thanked the staff for helping the School District by trying to get them operable. Councilmember Rigby thanked all the departments for their hard work. Would like to see a program for employees with special needs. Asked that requests for information by himself and the other Councilmembers be given in a timely manner. Councilmember Moser wants to see the City communicate all the resources available to citizens who have financial and other issues that they may be facing at this time. He is very proud of the City employees, especially the Police Officers. Would like to see the City be more self-sufficient by using emergency generators, and would like to see critical businesses, such as gas stations use the emergency generators as well. Councilmember Black said that the City was well prepared and said that he was totally impressed with the response of the department heads and the city overall. He praised the line of communication, and hasn't received a complaint from anyone. We have a challenge ahead of us, but feel sure that the City is ready to take on the second phase of the storm. Suggested having an appreciation gathering for the staff and families for their hard work. Councilmember Malone reported that it was heartwarming to see everybody pull together as a community. She spent the weekend helping at the pod at La Porte High School, along with several other volunteers from the community and high school. She commended the Police and Fire Department along with all other staff for a great job done. Mayor Porter reported that he thought we were one of the first cities to get any of the pods, and there wasn't anyone around to dispense them so it was moved to Baker Junior High School. They ended up moving it to the Lomax area. Commended the staff on the exceptional job that they did. Minutes of Regular Meeting, Emergency Meeting and Public Hearing September 22,2008 Page 12 21. Executive Session. pursuant to provision of the open meetings law, chapter 551.071 through 551.076, 551-087, Texas government code (consultation with attorney, deliberation regarding real property, deliberation regarding prospective gift or donation, personnel matters, deliberation regarding security devices, or excluding a witness during examination of another witness in an investigation, deliberation regarding economic development negotiations) A. 551.087 (Economic Development Negotiations)) Meet with City Manager and City Attomey and Economic Development Coordinator to discuss the purchase of real properties at 105 San Jacinto and the intersection of San Jacinto and South Broadway known as the "Triangle Property" and a lease agreement at 117 San Jacinto B. 551.074 (Personnel Matter) Meet with City Manager, City Attorney and Economic Development Coordinator for the Evaluation of the Economic Development Coordinator 22. Council retired into Executive Session at 9:36 p.m. on September 22,2008. Council reconvened to Regular Meeting and Public Hearing at 10:08 p.m. A. A Memorandum of Understanding between the La Porte Development Corporation Board and East A Development, L.P. and the La Porte 5 Points Properties, L.P. B. A Sales and Earnest Money Contract for the purchase of property located at the intersection of San Jacinto and South Broadway also known as the "Triangle Property" including a repayment provision for a loan to the Developer to be secured by a first lien on the property located in Blocks 6 through 9 and a second lien on the property located in Blocks 10 through 13 on San Jacinto in the Town of La Porte. C. A Lease Agreement between the Corporation and East A Development, L.P. for the property located at 117 San Jacinto. D. The purchase of property located at 105 San Jacinto from the Texas Parks and Wildlife Department 23. Considerations and possible action on items in executive session. Minutes of Regular Meeting, Emergency Meeting and Public Hearing September 22, 2008 Page 13 Nothing to report on Executive Session Item B. Motion was made by Councilmember Clausen to approve Items A. B. C and D. Seconded by Councilmember Black. Ayes: Black, Clausen, Mosteit and Porter Nays: Ebow, Malone, Moser and Rigby Abstain: None Absent: Engelken The motion did not pass due to a tie vote. 24. There being no further business the Regular Meeting, Emergency Meeting and Public Hearing was duly adjourned at 10:11 p.m. Respectfully submitted, Lfl7dd/J1L cJtac; Martha Gillett, TRMC, CMC City Secretary Passed and approved on this 13th day of October 2008. /\ ( ) l:-L. \~ r-:'J.. --Dr.-; \)'0 ::t~-- 0 ~ \ b~t: Mayor Alton E. Porter c. --,-- REQUEST FOR CITY COUNCIL AGENDA ITEM Agenda Date Requested, ~ 2008 Requested By: S. Gillett ~ _ Department: Public Works Budl!et Source of Funds: Fund 003 Account Number: 003-9890-952-1100 Report: Resolution: Ordinance: Amount Budgeted: $200.000 Exhibits: Engineer's Recommendation Amount Requested: $174.440 Exhibits: Bid Tabulation Budgeted Item: YES Exhibits Chanl!e Order No.1 SUMMARY & RECOMMENDATION The FY 2007-2008 Budget appropriated funds from Utilities Fund for rehabilitation of Lift Station # 38. This project was identified by a Lift Station Evaluation performed several years ago, and is the fourth project over a multi-year period. The project, designed by Claunch & Miller Inc. received bids on August 25, 2008, with nine (9) bids received. Low bid was submitted by Robinson Water Well Inc. in the amount of $206,839.50.Completion date is 80 days after receipt of notice to proceed. A total of $200,000 was budgeted for construction of this project based on previous Lift Station rehabilitation projects that were similar in scope of work. Cost savings was researched by the Engineer, Contractor and City Personnel. It was determined that City Forces can install the paving, asphalt apron, bollards, and waterline reducing the Contract price to $174,440. Fencing will be replaced under another agreement with local fencing Contractors. References were provided and checked by the Engineer. The Engineer recommends award to Robinson Water Well Inc. for the bid amount, less change order No.1, for a total of $174,440. 10 lea~8 lilt 1~~~~~o~u~an~IILLER September 25, 2008 City of La Porte 2963 23rd Street La Porte, Texas 77571 Attention: Mr. Don Pennell Assistant Director of Public Works Re: Rehabilitation of Lift Station No. 38 City of La Porte, Texas CMI Job No. 08-034 Dear Mr. Pennell: On August 25, 2008 nine (9) bids were received on the above referenced project. Corrections were made to the bid submitted by Robinson Water Well, Inc. bid due to calculation errors. The following is a summary of the corrected bids and our evaluation of the bidder to be considered for this project. Bid Tabulation Sheet - nine (9) construction firms participated in the bidding process. The bids for the total project are as follows: Lowest Bidder Second Lowest Bidder Third Lowest Bidder Fourth Lowest Bidder Fifth Lowest Bidder Sixth Lowest Bidder Seventh Lowest Bidder Eighth Lowest Bidder Ninth Lowest Bidder Contractor Robinson Water Well, Inc. Associated Construction Peltier Brothers Construction B-5 Construction R & B Group, Inc. T & C Construction Mar-Con Services RJ Construction G&N Enterprises, Inc. Total Bid $206,839.50 $224,390.00 $237,500.00 $261,044.00 $267,500.00 $277,000.00 $289,472.00 $390,000.00 $430,000.00 A copy of the bid tabulation is attached for you to review located in Section 1. HDR Engineering, Inc. 14635 Southwest Freeway Suite 1000 Houston, TX 77027-7139 1 Phone (713) 622-9264 Fax (713) 622-9265 www.hdrinc.com I Review of Lowest Bidder The lowest Bidder was Robinson Water Well, Inc. Robinson Water Well, Inc. is a company with one previous job of rehabilitation of lift stations. This lift station rehabilitation project will be the second lift station project that will be preformed by Robinson Water Well, Inc. Robinson Water Well, Inc. did provided resumes of the current officers of the company and construction managers. They have many years of experience in constructing lift stations. Please see Section 2 of this report. Telephone Conversations with Reference - CMI contacted the one reference that Robinson Water Well, Inc. performed a $400,000 rehabilitation on an existing lift station. Jack Tolloch with Van De Wiele Engineering was contacted and asked about the performance of Robinson Water Well Inc. on this project. Mr. Tolloch stated that Robinson Water Well, Inc. performed well on the project and would like to have them work on another project. Financial Statement - Robinson Water Well, Inc. provided a financial statement. Please see Section 3 of this report. . Robinson Water Well, Inc. appears to be a firm operated by individuals with the capabilities of performing the specified work in a satisfactory manner. It is our recommendation that the City of La Porte award the Total Bid of the Rehabilitation of Lift Station No. 38 to Robinson Water Well, Inc. for the amount of $206,839.50. Sincerely, CLAUNCH & MILLER, INC. ~ ~~ M'l- ~_ _~ l~ Z. fJA17 v-- rt- / ames E. Thompson, P.E. Senior Project Manager I !~ Bid Tabulations B/D #08023 REHAB/LlTA TlON OF LIFT STA T/ONS NO. 38 Robinson Associated Peltier B-5 T&C RJ G&N DESCRIPTION Water Well, Construction Brothers Construction R & B Group Construction Mar-Con Construction Enterprises Inc. Partners L TD Construction Co. Inc. Inc. LTD Services, LLC Co. Inc. Inc. BASE BID 199,340.00 215,440.00 231,500.00 254,844.00 265,000.00 272,000.00 284,072.00 385,250.00 409,000.00 SUPPLEMENTAL BID 7,500.00 8,950.00 6,000.00 6,200.00 2,500.00 5,000.00 5,400.00 4,750.00 21,000.00 TOTAL BID 206,840.00 224,390.00 237,500.00 261,044.00 267,500.00 277,000.00 289,472.00 390,000.00 430,000.00 Bonds, Insurance, Certification submitted yes yes yes yes yes yes yes yes yes Information reflects pricing only and other factors may be considered during the evaluation process. CHANGE ORDER No.1 PROJECT: Rehabilitation ofUst Station No. 38 DATE OF ISSUANCE: September 25. 2008 OWNER's Project No.: 08-034 OWNER: City of La Porte 2963 23m Street La Porte, Texas 77571 ENGINEER: Claunch & Miller. Inc. 4635 Southwest Freeway. Suite 1000 Houston. Texas 77027 CONTRACTOR: Robinson Water Well. Inc. 11819 West Montgomery Houston, Texas 77086 ENGINEER's Project No.: 08-034 You are directed to make the following changes in the ContJact Documents. Description: Removing Bid Items #4.5.6.8.9 from the Contract Documents Purpose of Change Order: To reduce the contract amount to meet the City's budget. Attachments: None CHANGE IN CONTRACT PRICE Original Contract Price $ 206.839.50 CHANGE IN CONTRACT TIME Original ContJact Time 80 calendar days Previous Change Orders No. ~ to No-2. Net change from previous Change Orders $ 0.00 0 calendar days Contract Price prior to this Change Order Contract Time Prior to this Change Order $ 206.839.50 80 calendar days Net decrease of this Change Order Net Increase of this Change Order $ 32,399.50 0 calendar days Contract Price with all approved Change Orders Contract Time with all approved Change Orders $ 174,440.00 80 calendar days RECOMMENDED: Claunch & Miller, Inc. APPROVED: City of La Porte APPROVED: Robinson Water Well. Inc. by Owner /~ &......-T ,R~~,v ;f'dF/A/r~,.t/ tJr-RCE/C E REQUEST FOR CITY COUNCIL AGENDA ITEl\'1 Appropriation Agenda Date Requested: Requested By: Stephen L. Barr ouree of Funds: N/A Department: Parks & Recreation Ace't Number: Report: _ Resolution: _Ordinance: -X- Amount Budgeted: N/A Exhibits: Easement Agreement Amount Requested: N/A Exhibits: CenterPoint Survey Document Bud eted Item: YES NO N/A Exhibits: SUMMARY & RECOMMENDATION Phase III of the Pond to Park project includes interior park lighting to illuminate the interior of the park for patron access. The City of La Porte has excess capacity in its CenterPoint street light allocation for this year to install ten decorative street lights in the park, utilizing the CenterPoint Decorative Streetlight Program In order to proceed with the project CenterPoint Energy requires an easement in the portion of the park where the lighting wIll be installed. CenterPoint staffhas reviewed the plans for the park and approved the installation, and has provided the survey required to obtain the easement. The easement consists of a 5' strip adjacent to the existing east-west walkway, and a 10' strip adjacent to the existing north-south walkway and viewing platform (see survey, attached). The City of La Porte has used excess streetlights from its allocation to light two previous park projects, the jogging trail at Glen Meadows Park, and the entrance drive to Sylvan Beach Pavilion. Staff recommends approval of an Ordinance granting the e'dsement to CenterPoint Energy which will allow the placement of ten decorative streetlights in the park located at 3502 Driftwood, La Porte. Council A enda IO)~ Date ORDINAr~CE NO. 200S-.QlJi AN ORDINANCE APPROVING AND AUTHORIZING A STREETLIGHT EASEMENT AGREEMENT BETWEEN THE CITY OF LA PORTE AND CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC, TO PROVIDE AN EASEMENT AREA FOR INSTALLATION OF LIGHTING FOR THE PO~'D TO PARK PROJECT, ACCORDING TO THE TERMS OF THE AGREEMENT PROVIDED; MAKING VARIOUS FINDINGS AND PROVISIONS RELATING TO THE SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; PROVIDING AN EFFECTIVE DATE HEREOF. BE IT ORDAIl'l'ED BY THE CITY COlJNCIL 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 of the City of La Porte. The City Secretary is hereby authorized to attest to all such signatures and to affix the seal of the City to all such documents. Section 2. The City Council officially finds, detennines, recites, and declares that a sufficient written notice of the date, hour, place, and subject of this meeting of the 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 thi<; 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 fillther ratifies, approves, and confnms 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 13TH day of OCTOBER 2008. CITY OF LA PORTE (1- ~- ~~~--J~~ By: Alton E. Porter, Mayor ATTEST: '-1fJddh#4t/ Martha Gillett, City Secretary APPROVED AS TO FORtvl: ~r~ C ark T. Askins, Assistant City Attorney Page 2 of2 Jab 47795937-1 Map 61538 SIC SA YTOWN NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOllOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FilED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S lICENSE NUMBER. EASEMENT STATE OF TEXAS } KNOW ALL FERSONSBY THESE PRESENTS: COUNTy' OF HARRIS } THAT, City .of La Parte, herein called Grantor, whether one or more, for and in consideration of the sum .of ONE DOLLAR ($1.00) CASH to Grantar paid by GenterPoint Energy Houston Electric, LLC, herein called Grantee, whase principal address is P. O. Box 1700, Houston. Texas 77251-17DO, has GRANTED, SOJ...D AND CONVEYED and by these presents, does GRANT, SELL AND CONVEY unto said Grantee,its successors and assigns, all .or in part, an easement (hereinafter referred te as the "Easement Area", . whether one or more) for electric distributien and communicatian facilities (hereinafter referred to as "Facilities") consisting .of a variable number of wires and cabies and all necessary and desirable equipment and appurtenances, including, but not limited to, towers or poles made of wood, metal or other materials, props and guys, lecated within the following described lands owned by Granter, to wit That certain8.151-acre tract of iand, beingati of Detention Reserve of Fairmant Park East Section Six, a subdivisien located in the William M. Jones Survey, Abstract 482, Harris County, Texas, according to the map .or plat thereof recorded in Film Code 416008 of the Map Records of said county and state, being- the same property described in a deed from Fairmont Park East Homeowners Association to City of La Porte, dated July J:\lOB FIlES\B200B\477959371A7795937-1.DOC (}9:/0810B dp 1 Job 47795937-1 Map 6153B SIC SA YTOWN 1, 2002 and filed for record under County Clerk's File W022864 and RIm Code 555-44-2491 in the Offtcial Public Records of said Gountyand State. The Easement Area herein granted is described as follows: 1. An easement of variable width, the location of Which is shown by the double crosshatched area on Sketch No. 08-505 and Sketch No. 08-. 505A, hereto attached and made a part hereof; 2. An easement five (5) feet wide, the location of which is shown by the crosshatched area ons3id attached Sketch No. 08-505 and Sketch No. {)8~505A; and 3. An easementten (10) feet wide, the location of the centerline of which is shown by the dot-dash symbol on said attached Sketch No. 08-505 and Sketch No. 08-S0SA. Grantor or its successors or assigns shan observe and exercise all notification laws as per the Underground Facility Damage Prevention and Safety Act, also known as "ONE CALL" & "CALL BEFORE YOU DiG", \>vhen working in or near the Easement Ama. To the extent that such Laws and Codes apply to Grantor, its successors or assigns, Grantor or its successors or assigns shall observe all safety codes and laws which apply to working along, within and or near the Easement Area and Facilities during construction actfvities and safe clearance from such Facilities, inciuding D-S.H.A., ChaptM7S2 of the Texas Health and Safety Code, the National Electric Code, and the National Electrical Safety Code. Grantor, its successors or assigns, is hereby obligated top/ace National Electrical Safety Code notices into Community Deed Restrictions when Easement Area falls within Residential Developments. Notwithstanding the description ofthe Easement Area set forth in the exhibits, the parties intend that the Easement Area granted herein shall run to the edge of Grantor's J:UOB flLES\B200S\47795937147795937-1.DOC O9IOllIllS dp 2 Job 47795937-1 Map 6153B SIC SA YTOWN property so that the exteriors of all ground or aerial easements herein granted are to intersect with the exteriors of aii adjoining easements and/or property Hnes without any gaps in the property granted. Grantee shall also have reasonable fights of ingress and egress to and from said Easement Area, together with reasonable working space, for the purposes of erecting, installing, operating, maintajning, replacing, inspecting, and removing said Faciiities, together with the additionat right to remove from said Easement Area and land immediately adjoining thereto, all bushes, trees and parts thereof, or other structures or improvements which are within, protrude, bisect, encroach or overhang into said Easement Area and which, in the sole opinion of Grantee, endanger or may interfere with the efficient, safe and proper operation, and maintenance of said Facilities. TO HAVE AND TO HOLD the above described Easement Area, together with all and singular the lights and appurtenances thereto in anywise belonging, unto Grantee, its successors or assigns. forever, and Grantor does hereby bind itself and its successors, heirs, assigns, and legal representatives, to fully warrant and forever defend aU and singular the above described Easement Area and rights unto said Grantee, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise. In the event of a deficiency in title or actions taken by others which results in the relocation of Grantee's Facilities, the Grantor herein, its successors and assigns, will be responsibfe for all costs associated with the relocation and/or removal of Grantee's Facilities. J:\JOB F1LESIB2ll08\477!!5937\47795l137 ~1.DOC O9I!lBillll dp 3 Job 47795937-1 Map 61538 SiC BA YTOWN 13ft- day of tx)o b~( ,2008. BY: '(on 'BoH-bwb Name t:fPed or printed Hk~ AbcG L~+\.-I , Title ST ATE OF TEXAS } COUNTY OF HARRIS } . ~ This instrument was acknowledged before me on _13 j~(, 2008, by ton M#DfYI ~ , Li~ J4 4'AJJc6t:K... of City of~, orte, a municipal corporation, on behalf of said corp atlOn. @ MARTHA GILLETT My Commission expires August 22. 2009 ~ ~ t Ljl~~Jit 1\Aa (k bl')!e# Name typed or printed ~/~~ {J1 C.;:;mmission.Expires --- --- ........ ....... AFTER Ri:CORDI:NG REtVRN TO: sURVEYING & RIGHT OF WAY CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC 1'. O. BeX 17tlO HOUSTON, TX 77251.1700 J:\JOB FILES\El200B\471ll5937\47795937-1. DOC 01l1OlllO6 dp 4 \J ::0 --- -r, --l ~ () \::J \:J :n ---::. ~ ---..... CD a ::a \ () ~ '----- w. M. JONES LEAGUE A-482 FAIRlilOlfT PARK EAST SECTION SIX FND. I.R. W/PL GAP MARKED "W\NROSE 1X. 4757" \ t F.C. 41600B IIi.R. MESQUITE (50' R.O.W.) z o .....(.oj .....0 35 ~.o: 34 83 .....Ul -~ .:;E / ---I FNO. N 1/2" 1.R. SEE DUAIL .e" /-......... f-. ...- ...... .-'" RESERVE "H" 50'- 0 1.-____1 50 100 I I SCALE IN FEET 82 31 30 . 29 r-DED.1.6' U.E. 28 \ ~JSEE \. ~ DETA!L "A- !l+s' EASEMENT ~ \ ~ I l, ,u;:- I L,Wt_" CITY OF LA PORTE DETENTION RESERVE Le. 416008 M.R. F.e. 555-44-2491 W022864 O.P.R.R.P. 8.151 AC. \ 2'1 26 BLOCK 4-4 ----- LfNE TABLE LENGTH 1 BEftJ'~tNG L1 L2 l3 l4 L5 L6 L71 La L9 l10' , L11 132.25 27.39 17.06 169.39 1 4-.66 169.95 137.68 3.37 137.68 3.23 15.B1 S87'28'4-5"W r-.l86'S4'01"E 504'5"24"E N81"28'45"E 502'59'24"( 581"20' 42"W 503'04'29"E S86'5..r'3S"W 503"02'22"[ N86'54'01 "E - NO~05'59.W SEE / ;~ ~ETAIL "8" I _! \ DEED TO CITY fOR 7' MA'NTFl.;ANCE ACCESS 5'1- 1;'~~~~IENANCE ACCESS r S SDUNE --PAIRMONT PARK EAST SECTION FIVE F.C. 531108 M.R. ~ \ \ 2 5 6 ..-':':.' r-nQII\lrlMnnn DRrVE (5di~'5R.o. w.) J.11\jJV\..7l'r-~j'-'''-'' - . 150 I - . - = rt 10' EASEMENT BY: B~Grirl9 6us"r5: T91<O. Cooroinote System <>f 1983, SQuth Centro! Zone (lXSC Zone 4204); NAn 83 SHEET '\ or 2 BY: NaTE: THEOOffilORS OF ALL rASEMENTS ARE TO urn:RStCT WITH 1liE EXTERIORS Of AlL AOJOINm EASEl.1EI<TSOR wtTH AOJOlNlNG PROPERlYtlNES. REV.l:JOB NO. EASEMENT - UNOBSTRUCTED COUNT'f: HARRiS DATE: AUGUST 29, 2008 SCAtE: 1. -= 100' ALE NO. - BOOK: Z008 DATE: REV.2:JOB NO. lAST PLOT DATE: 09-02-2008 DPAWt" BY: GDW MAP NO: 6153 83 JOB NO: 47795937 CHECi<ED BY: ere CenterPoint Energy SURVEYING & RIGHT OF WAY P.O. Box 1700 HoUston, TX 77251-1"100 SKETCH NO. 08-505 " , ,l\. ,;, '\ !>~; 1\ - ;2-- "4;. <0-~--------~ J' <:)"; '< r ~ '0' / l1 .. ___--..\ r-------; \ J El. 10' .11 I EASEMENT N 1 \ 1 '\ [117' LT' I \ BRICK I ;/ \ r,^\!'-~C:: A (~::~\ ~)/ -i..-..___----/ liNE TABLE LINE I LENGTH BEARING L1 I 132.25 N8S54'O,"E ! LZ ! 27.39 504'51'24"E L3 17.05 NBT2!t4S"E L4 169.39 502'59'24"[ L5 14.66 S8?20'42"W L6 169.95 S03'04'29"E L7 1.37.68 SBS'S7'38''W La 3.37 50S02'22"E ,^ oI!'7;:"" ~!...... ,.~ "- "....of r~r- N 1~o6 ...J~ v I I:. NOSOS'S9"W--- SB7'28'45"W I \ --. j \\.., ,,~ ~ " B ., , ., C 11 \~--- - .- --- '-.. Iv ^S'/ ",,-;... <(;/ " C)/ I 1-- i I /' ~ \. \ \ SKEET 2 or 2 50 0 1..__,._1 50 I 100 150 I I SCALE IN FEET NOTE: !HE E)(TERlORS Of ALL OOEMENTS ARE TO IMlERSECT WIlli lHE EXlERlORS ()f AU. AtlJOINlNG EASEMOOS OR wnHAi)JOINING PROP€RTY UNES. REV.1:JOB NO. BY: DAlE: REV,2:JOB NO. EASEMENT - UNOBSTRUCTED . LAST PLOT DATE: 09-02-2008 COUh1Y: HARRiS DRAWNBY~ -GO\'1 BY: DATE: '\ Center Point Energy DATE: AUGUST 29, 2008 SCALE: 1" "" 1 QO' FILE NO. - BOOK: 2008 MAP NO; 6153 83 JOB NO: 47795937 SURVEYING & RIGHT OF WAY P.O. Box 1700 Houston, 1)( 77251-1700 CHECKED BY: eFG SKETCH NO, 08-505A H REQUEST FOR CITY COUNCIL AGENDA ITEM Agenda Date Requested: October 13, 2008 Requested By: Michael Dolby, CPA ~ ~ Department: Finance Report: Resolution: Ordinance: xx Exhibits: Ordinance 2008-3101-A Budgeted Item: YES NO Exhibits: Excerpt from FY 2009 Adopted Budget & Amended Budget (Exhibit A & B) Source of Funds: N/ A Appropriation Account Number: N/A Amount Budgeted: N/A Amount Requested: N/A Exhibits: Explanations / Backup for Amendment SUMMARY & RECOMMENDATION "'" The City Council adopted the Fiscal Year 2008-09 Budget on August 25, 2008. The Summary of Funds, which is shown below, represents the amendments which council previously approved to the FY 2008-09 Budget. (*denotes funds with current changes) General Fund Grant Fund Street Maintenance Sales Tax Fund Community Investment Hotel/Motel Occupancy Tax La Porte Development Corporation Tax Increment Reinvestment Zone Utility Sylvan Beach Airport La Porte Area Water Authority Golf Course Motor Pool Insurance Fund Technology Fund General Capital Improvement Utility Capital Improvement Sewer Rehabilitation Capital Improvement 1998 General Obligation Bond Fund 2000 General Obligation Bond Fund 2002 General Obligation Bond Fund 2004 Certificate of Obligation Bond Fund 2005 Certificate of Obligation Bond Fund 2005 General Obligation Bond Fund 2006 Certificate of Obligation Bond Fund 2006 General Obligation Bond Fund 2007 Certificate of Obligation Bond Fund Transportation & Other Infrastructure Fund General Debt Service Utility Debt Service La Porte Area Water Authority Debt Service Total of All Funds Previously Original Budget Amended Budget $ 36,382,175 1,923,528 700,000 386,575 463,749 4,339,685 1,435,775 8,689,854 217,690 23,483 1,005,288 1,324,826 2,640,159 4,575,547 1,255,818 1l,177,355 o 350,000 590,195 149,109 1,990 861,883 341,678 73,824 2,212,267 18,021 1,640,317 o 3,345,768 463,850 750,069 $ 87,340,478 $ 36,382,175 1,923,528 700,000 386,575 463,749 4,339,685 1,435,775 8,689,854 217,690 23,483 1,005,288 1,324,826 2,640,159 4,575,547 1,255,818 1l,177,355 o 350,000 590,195 149,109 1,990 861,883 341,678 73,824 2,212,267 18,021 1,640,317 o 3,345,768 463,850 750,069 $ 87,340,478 Proposed Amended Budget $ 36,382,175 2,065,528 * 700,000 386,575 463,749 4,339,685 1,435,775 8,689,854 217,690 23,483 1,005,288 1,324,826 2,640,159 4,575,547 1,306,198 * 1l,177,355 o 350,000 590,195 149,109 1,990 861,883 341,678 73,824 2,212,267 18,021 1,640,317 o 3,345,768 463,850 750,069 $ 87,532,858 Action Reauired bv Council: Adopt Ordinance Amending Fiscal Year 2008-09 Budget for: A. $142,000 in the Grant Fund for a donation received from the Harris County District Attorney's Office for the purchase of In-Car DVR systems for the Police Department. B. $50,380 in the Technology Fund for the paperless agenda. 14 h /08 Date ORDINANCE NO. 2008-3101-A AN ORDINANCE APPROVING AN AMENDMENT TO THE BUDGET FOR THE CITY OF LA PORTE, TEXAS, FOR THE PERIOD OF OCTOBER 1, 2008 THROUGH SEPTEMBER 30,2009; FINDING THAT ALL THINGS REQUISITE AND NECESSARY HAVE BEEN DONE IN PREPARATION AND PRESENTMENT OF SAID BUDGET; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE HEREOF. WHEREAS, the Charter of the City of La Porte, Texas, and the Statutes of the State of Texas, require that an annual budget be prepared and presented to the City Council of the City of La Porte, Texas, prior to the beginning of the fiscal year of said City, and that a public hearing be held prior to the adoption of said Budget; and WHEREAS, the Budget for the fiscal year October 1, 2008, through September 30, 2009, has heretofore been presented to the City Council and due deliberation had thereon, was filed in the office of the City Secretary on July 25, 2008, and a public hearing scheduled for August 25, 2008 was duly advertised and held. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE: SECTION 1: That the Budget for the City of La Porte, Texas, now before the said City Council for consideration, a complete copy of which is on file with the City Secretary and a summary of which is attached hereto by reference as Exhibit "A", is hereby amended as reflected on the amended budget summary document, attached hereto by reference as Exhibit "B", as the Budget for the said City of La Porte, Texas, for the period of October 1, 2008, through September 30, 2009. SECTION 2: Be it FURTHER ORDAINED, that the said City Council finds that all things requisite and necessary to the adoption of said Budget have been performed as required by charter or statute. SECTION 3: The City Council officially finds, determines, recites and declares that a sufficient written notice of the date, hour, place and subject of this meeting of the 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. SECTION 4: This Ordinance shall be in effect from and after its passage and approval. PASSED AND APPROVED this the~ day of -DJ.. ,2008. Cl~ OF LA POR~E;~~~XAS kl~~~, (--ktt,~ Alton Porter, Mayor .,. ATTEST: APPROVED: 1A'~r ~~ Clar AskinS, Assistant City Attorney EXHIBIT A (ORIGINAL BUDGET) City of La Porte Consolidated Summary of All Funds FY 08-09 FY 08-09 Revenues Expenses Governmental Fund Types: General Fund 33,724,383 36,382,175 Grant Fund 1,923,528 1,923,528 Street Maintenance Sales Tax 786,440 700,000 Community Investment 264,701 386,575 HoteJ/Motel Occupancy Tax 583,575 463,749 Section 4B Sales Tax 1,647,506 4,339,685 Tax Increment Reinvestment 1,519,774 1,435,775 Total Governmental Types 40,449,907 45,631,487 Enterprise: Utility 8,369,944 8,689,854 Sylvan Beach 207,601 217,690 Airport 52,995 23,483 La Porte Area Water Authority 1,226,202 1,005,288 Golf Course 1,202,679 1,324,826 Total Enterprise 11,059,421 11,261,141 Internal Service Motor Pool 2,107,688 2,640,159 Insurance Fund 3,945,027 4,575,547 Technology Fund 948,623 1,255,818 Total Internal Service 7,001,338 8,471,524 Capital Improvement: General 10,684,213 11,177,355 Utility 192,000 Sewer Rehabilitation 304,927 350,000 1998 GO Bond Fund 7,000 590,195 2000 GO Bond Fund 149,109 2002 GO Bond Fund 1,990 2004 C/O Bond Fund 861,883 2005 C/O Bond Fund 1,400 341,678 2005 GO Bond Fund 73,824 2006 C/O Bond Fund 5,000 2,212,267 2006 GO Bond Fund 2,500 18,021 2007 C/O Bond Fund 10,000 1,640,317 Other Infrastructure 17,282 Total Capital Improvement 11,224,322 17,416,639 Debt Service: General 3,276,016 3,345,768 Utility 104,705 463,850 La Porte Area Water Authority 750,069 750,069 Total Debt Service 4,130,790 4,559,687 Total All Funds 73,865,778 87,340,478 EXHIBIT B (AMENDED BUDGET) City of La Porte Consolidated Summary of All Funds FY 08-09 FY 08-09 Revenues Expenses Governmental Fund Types: General Fund 33,724,383 36,382,175 Grant Fund 2,065,528 2,065,528 Street Maintenance Sales Tax 786,440 700,000 Community Investment 264,701 386,575 HoteJ/Motel Occupancy Tax 583,575 463,749 Section 4B Sales Tax 1,647,506 4,339,685 Tax Increment Reinvestment 1,519,774 1,435,775 Total Governmental Types 40,591,907 45,773,487 Enterprise: Utility 8,369,944 8,689,854 Sylvan Beach 207,601 217,690 Airport 52,995 23,483 La Porte Area Water Authority 1,226,202 1,005,288 Golf Course 1,202,679 1,324,826 Total Enterprise 11,059,421 11,261,141 Intemal Service Motor Pool 2,107,688 2,640,159 Insurance Fund 3,945,027 4,575,547 Technology Fund 948,623 1,306,198 Total Intemal Service 7,001,338 8,521,904 Capital Improvement: General 10,684,213 11,177,355 Utility 192,000 Sewer Rehabilitation 304,927 350,000 1998 GO Bond Fund 7,000 590,195 2000 GO Bond Fund 149,109 2002 GO Bond Fund 1,990 2004 C/O Bond Fund 861,883 2005 C/O Bond Fund 1,400 341,678 2005 GO Bond Fund 73,824 2006 C/O Bond Fund 5,000 2,212,267 2006 GO Bond Fund 2,500 18,021 2007 C/O Bond Fund 10,000 1,640,317 Other Infrastructure 17,282 Total Capital Improvement 11,224,322 17,416,639 Debt Service: General 3,276,016 3,345,768 Utility 104,705 463,850 La Porte Area Water Authority 750,069 750,069 Total Debt Service 4,130,790 4,559,687 Total AU Funds 74,007,778 87,532,858 La Porte Police Department 3001 North BId Street La Porte, Texas 77571 281-471-3810 Fax: 281-470-1590 Kenneth Magidson, District Attorney Harris County District Attorney's Office 1201 Franklin Houston, Texas 77002 August 21 st, 2008 Kenith Adcox, Chief of Police La Porte Police Department 3001 North 23rd La Porte, Texas 77571 Sir, It is my understanding that there are funds available in the District Attorney's seized fund accounts that may be disseminated to local law enforcement agencies. I would like to request that the La Porte Police Department be considered in your distribution. Our current "Eyewitness" In-Car Video Systems use VHS cassette tapes and have become obsolete. The systems are breaking more frequently and becoming increasingly more difficult to repair, not to mention costly. The video and audio qualities are very poor compared to the newer systems which lead to poor evidence presentation in court proceedings. We have allocated in excess of $1 00,000.00 to upgrade our in-car video systems for this fiscal year. We plan to purchase a 14 terra byte server, an 80 giga byte viewing station, a DVD duplicator and all other support hardware, but we only have enough money to implement Phase One of our transition to the digital age, which would be video systems for only ten vehicles. We have 40 patrol cars in our fleet vehicles. We would like to equip the entire fleet at the same time so that we have consistent operations from car to car. This would require the purchase of 30 additional systems at $4765.50 each for a total of$142,965.00. Ifourrequest is granted a complete conversion to the digital systems becomes possible. A quality digital system gives us the following advantages: . The system provides for easier video reviews . Enhanced presentation and preservation of evidence · More efficient duplication of evidence for court presentations . Assist supervisors by allowing much faster retrieval of incidents that may have given cause for a complaint . Capability of a pre-record option that captures events before the system is even activated . Can be utilized as an excellent training tool not only for DWI enforcement but also for pursuits and motor vehicle accidents Ron Bot/oms CII)' Manager Kemll1 Adcox Chiefo('Po/ice The citizens of La Porte could enjoy safer streets because DWI enforcement would be greatly enhanced. Officers of the La Porte Police Department would have an indispensable tool to assist them in making cases which the DA's office would find easier to prosecute and convict. We would also like to purchase two sets of night vision goggles. This equipment would be primarily utilized by a newly formed "Hot Spot" team. One of the team's primary focuses will be surveillance and detection of various types of criminal activity during night time hours. Areas that are identified as problem areas will receive extra attention by this unit. Night vision allows the surveillance units to watch from a safer distance, undetected by the criminal element and will aid in the apprehension of the suspects. The equipment would also be a great asset in the event of a tactical situation. I have attached the specifications for the requested items including possible vendors and pricing for each. I have summarized my findings below: In-Car video systems Night vision Goggles 30 @ 4765.50 each 2 @ 3269.95 each $142,965.00 $ 6,539.90 Total amount requested $149,504.90 I have researched each product and am confident that we would be getting the best value for the amount spent. I appreciate your consideration in this matter. Respectfully submitted, Chief Kenith Adcox Kenneth Magidson, District Attorney Harris COlmty District Attorney's Office 1201 Franklin Houston, Texas 77002 August 21 S\ 2008 Dear Mr. Magidson, I would like to thank you for the $142,000.00 enabling us to purchase 30 additional in-car digital video systems for our patrol cars. As you know this equipment will increase officer and community safety and is vital for our efforts by providing us state of the art technology that will enhance our capabilities as well provide better cases for your office. The funds received will be deposited into General Fund account number under Bank; City of La Porte, Thank you again for your continued support. Respectfull y, Ron Bottoms City Manager HARRIS COUNTY, TEXAS COMMISSIONERS COURT 1001 Preston, Suite 938 · Houston, Texas 77002-1817 · (713)755-5113 Ed Emmett County Judge EI Franco Lee Sylvia R. Garcia Steve Radack Commissioner, Precinct 1 Commissioner, Precinct 2 Commissioner, Precinct 3 Jerry Eversole Commissioner, Precinct 4 No. 08.17 AGENDA September 9, 2008 10:00 a.m. Opening prayer by Father Rodney Armstrong of Holy Family Catholic Church in Baytown. 16. Probate Courts 17. District Courts 18. Travel & Training a. Out of Texas b. In Texas 19. Grants 20. Fiscal Services & Purchasing a. Auditor b. Tax Assessor-Collector c. Purchasing 21. Commissioners Court a. County Judge b. Commissioner, Precinct 1 c. Commissioner, Precinct 2 d. Commissioner, Precinct 3 e. Commissioner, Precinct 4 22. Miscellaneous II. Emen?:encv/supplemental items III. Public Hearin2:s IV. Executive Session V. Appearances before court Adjournment I. Departments 1. Public Infrastructure Department a. Public Infrastructure b. Right of Way c. Construction Programs d. Toll Road Authority e. Flood Control District f. Architecture & Engineering g. Facilities & Property Management 2. Management Services 3. Information Technology 4. Public Health & Environmental Services 5. Community Services 6. Youth & Family Services 7. Constables 8. Sheriff 9. Fire Marshal 10. Medical Examiner 11. County Clerk 12. District Clerk 13. County Attorney 14. District Attorney 15. County and District Courts The Commissioners Court may go into executive session, if necessary, pursuant to chapter 551 of the Texas Government Code, for one or more of the following reasons: (1) consultation with the County Attorney to seek or receive legal advice or consultation regarding pending or contemplated litigation; (2) discussion about the value or transfer of real property; (3) discussion about a prospective gift or donation; (4) consideration of specific personnel matters; (5) discussion about security personnel or devices; or (6) discussion of certain economic development matters. The Commissioners Court may announce that it will go into executive session on any item listed on this agenda if the subject matter is permittedfor a closed session by provisions of chapter 551 of the Texas Government Code. The agenda is available on the internet at www.co.harris.tx.us/agenda. 09.09.08 Page -18- f. Request for approval of a special counsel agreement with Andrews Kurth, LLP, in connection with certain public finance and governmental contracting matters for the Harris County Toll Road Authority. 14. District Attorney a. Request for authorization to use discretionary funds to issue checks to: 1. The Children's Assessment Center Foundation in the amount of $197,348 to provide funding to purchase a new digitized interview system. 2. The City of La Porte in the amount of$142,000 to provide funds to purchase 30 in- car digital video systems for patrol cars. 3. Harris County Constable of Precinct 2 in the amount of $124,775 to provide funding to purchase body armor units and mobile patrol car video recorders. b. Request for authorization to transfer a car allowance from one assistant district attorney position to another. c. Request for authorization to purchase 30 Blackberry devices and related items using discretionary funds in the amount of $4,640. 15. County and District Courts Request for approval of salary adjustments for qualifying employees in connection with the career salary plan for county and district court coordinators. 16. Probate Courts Request by Judge Olsen, Court No.3, for approval of settlement payment to Low Key Consulting in the amount of $20,166 for hardware and software maintenance services for calendar years 2006 and 2007. 17. District Courts a. Request for authorization to delete a cellular phone from the department's inventory. b. Request for approval of payments to the Houston Bar Association for July 2008 and the Harris County Department of Education for June and July 2008 for alternative dispute resolution services. Results Of the Commissioners Court Meeting of 09/0912008 Page 1 of 1 Results Of the Commissioners Court Meeting of 09/09/2008 All agenda items approved as presented with the following exceptions: Harris County Commissioners Court Exceptions to September 9, 2008 Agenda I Page II Item II Department II Exception I DEJI Right of Way I Change wording from u.. .southwest corner of. . ." to .. .southeast corner of.. . 17 II 1.e.7 II Flood Control District II Item withdrawn I 8 1.f.5.e Architecture & Engineering Second line through end of item should read: connection with construction of Scott Street from north of Beltway 8 to Fuqua Road in Precinct 1. 27 20.cAh Purchasing Results of drawing lots for bid awards: Class 11, Item 21 to Glazier Foods Company; Class 10, Item 7 to Glazier Foods; Class 8, Item 4 to LaBatt Food Service. 129 1120.c.7.b II Purchasing II Item withdrawn I DEJI Purchasing I Change ending date to September 10,2011 DEJ Commissioner, Precinct 3 Name of community center to be Trini Mendenhall So sa Community Center 33 IV.1 Executive Session Accept recommendations of PID regarding security enhancements in Admin. Bldg. PID to meet and work with Management Services on plan to bring back to court at Mid-Year Review on September 23rd. Commissioners Court Agenda - Acrobat Format Commissioners Court Agenda - Word 97 Format http://www.cc1erk.hctx.net/COMCOURT/08./0817.htm 9/1712008 THE ORIGiNAL'o'OCUMENTFl'AS A fRUE~WATERMARK IN THe pApER. HOeD TO LlG"HT TO SEETHE CHA'lIil"LII'.JK PATTER,;rwHEr-fcHECKING THE-ENDORSEMENTS, "..","", .'G_ .J>.~,' '.._,''', .,Y _.,"""""'_."."'",..".,.....,,,..,,J.,"'.""',.,,,,.."""'''''''''.. -=,_./ '"''''".'~Y;~,','~.,,'',.''''''''''''' '..ca.'~ '...._~,.,,/ ,..",.,=.,.:J -',^,,,.,-d ~",""""'.g4C~" '.'=d< ,=-..r "".=.",," "_',k""_""" ",,,*",,,,,"',__"',..,,.,,," "=,_",,,,.J ;;'=".';'~ ..","""c';' -,.. . ... ,,','C><.,",'.''''''''"cc' -,_.<O,^, ",,( '=.,0",; """,:."",. :<<<,.",,~ ..., .~,~<K.',,"."".m.(' ";"~~"'.< ,',.'~"''''; ',,'''_C'''C .." ,','."". -,&,,",,,,", '.,~.^^" ~,.'-"".-.~._~ -.,',-, ORLANDO SANCHEZ TREASURER OF HARRIS COUNTY, TEXAS AMEGY BANK OF TEXAS PORTER, TEXAS County Auditol's Form #7000 Harris County, Texas (10103) '" !;l '" z o "J i! ill o ci ill o 3 () ;; 3J TO II: :0 li' ill U. r: a' :0 () ill (f) q:J.. Central Disbursement 1001 Preston Avenue Houston, Texas 77002 No 02311172 PAY: ONE Hundred FORTY TWO Thousand Dollars and ZERO Cents THE ORDER OF: CITY OF LAPORTE ACCT NO 0000312088 HOLD. FOR DISTRICT ATTY Date: 09/09/2008 $142,000.00 755 5819 \MiEN Signature VALID ONLY COUNTERSIGNED .. .Signature JIIP III 0 2 3 . . . 7 2 III I:.. 3 . . 0 5 a b I: III L. L. L. L. 0 3 . 5 ~ III REQUEST FOR CITY COUNCIL AGENDA ITEM Agenda Date Requested September 8, 2008 Requested By ~~ha Gillett/James Janoch Appropriatiou Source of Funds: Department: City CQ1Hldl Account Number: Report: X Resolution: Ordinance: Amount Budgeted: Exhibits: Amount Requested: Exhibits: Exhibits: Paperless Agenda Summary and Rp.commendation Budgeted Item: YES NO SUMMARY & RECOMMENDATION Review and discuss the paperless agenda recommendations and provide staff with direction. ssion on the paperless agenda, provide staff with direction on moving forward with the project. Page 1 of 1 Gillett, Martha !=rom: Janoch, James Sent: Wednesday, October 08,20084:17 PM To: Gillett, Martha Subject: Paperless Agenda budget amendment request The budget for the paperless agenda comes from two accounts: Hardware charges to account: 023-6066-519-20.93 $15,000 Software charges to account: 023-6066-519-50.07 $35,380 The funds will be used as follows: $15,300 for the notebook computers and Adobe Acrobat. $35,080 for necessary improvements to council area to support the audio/visual upgrades requested by council. The project was discussed in the council workshop held September 8, 2008. The estimated cost was approximately 15,300 with a recurring monthly charge of $450. There will additional charges to provide electrical service and network connections to dais. I will bring you the workshop information I have. Thanks, James Janoch Interim IT Manager City of La Porte, TX P: 281-470-5031 F: 281-471-3028 10/8/2008 PAPERLESS AGENDA SUMMARY AND RECOMMENDATION Staff has researched several methods in which a paperless agenda can be implemented. The most cost effective means is to utilize Adobe Acrobat and Microsoft Word software. This will save the City several thousand dollars. The original plan was to purchase the software offered by MunicodelLaserfiche at an approximate cost of $38,000.00+. The estimate provided by James Janoch in MIS is as follows: Quantity Description Cost 9 Notebook PC 1,500.00 9 Adobe Acrobat Professional 200.00 Total one time fees Ext. Cost 13,500.00 1,800.00 15,300.00 9 Air Card monthly fee 50.00 450.00 unknown amount for electrical work for council area The following steps outline the process: . Each Counci1member would be issued a laptop computer. The computer could be used at home and then will need to be brought to the council meetings. . Once the agenda is finished, it will be placed on a secured FTP site accessed via the web page for your access. . You will be able to download the agenda to your laptop . The laptop will have software installed so you can attach sticky notes electronically as needed. Staff needs direction on the following questions: . How does Council want to retrieve the agenda? There are several options available to get the agenda onto the laptop computer. The following options are being considered: a. The City can provide air cards which will provide Internet access allowing the documents to be downloaded directly to the laptop. The download may be slow depending on the connection speed. The monthly fee per air card is approximately $50.00. b. If the Council member has Internet access available, the City can provide a USB memory stick to which the documents can be downloaded from the Internet and then transferred to the laptop pc. One USB memory stick will cost less than $50.00 depending on capacity. Page 1 of 2 - Paperless Agenda c. The document can be written to a CD-ROM. The CD-ROM would need to be picked up from city hall the same as the paper agenda's have been or they could be delivered if Council desired. CD-RaM's cost less than fifty cents each. . Does Council want staffto place the agenda and all back-up documents (with the exception of Executive Session back-up) on the website for public view? If so, at what point would you like them to become public. Staff wants to ensure Council has received the information first and has had time to review it prior to receiving questions from citizens. . In an effort to secure Executive Session documents, staff is recommending that they be passed out and picked up the evening the executive session meeting is held. Should you have a desire or if there is a need for you to review documents in advance, special arrangements will be made for you to have access to the documents. . How would you like the training handled? MIS will need to conduct training. Staff recommends setting up an evening or Saturday training session. Training outside of normal business hours will require overtime pay for MIS staff. . I spoke with all of you and was advised you have your own internet. Staff needs confirmation this is still the case and the City does not need to provide you with internet service. Page 2 of 2 - Paperless Agenda 7 REQUEST FOR CITY COUNCIL AGENDA ITEM Agenda Date Requested: 10/1312008 Bude:et Requested By: Ron Bottoms Source of Funds: EDe Department: C'i~ M,m"gpr Account Number: 0159892976.11 Report: Resolution: Ordinance: Amount Budgeted: $2.7M Exhibits: MOD, Sales and Earnest Money Contract, and Lease Agreement Exhibits: Services Agreement Amount Requested: $824.000 SUMMARY & RECOMMENDA liON The LPEDC Board met on a number of items related to the Town Plaza Project. The items included a Memorandum of Understanding between the Corporation and the Developer related to steps going forward towards a final Development Agreement. A copy of the MOU is attached for your review. It also included as a condition of the sale of the Triangle Property that the Board enter into a lease agreement at 117 San Jacinto. Staff had suggested the concept of the lease during negotiations with the Developer as a way to better control the property. A copy of the subsequent Lease Agreement, which was drafted after the meeting, is also attached for your review. The LPEDC Board approved the Lease Agreement at their meeting on September 22 at 5:00. A Sales and Earnest Money Contract for the purchase of the Triangle Property was also discussed by and is attached. The contract includes a repayment provision for a loan of $150,000 to the Developer to be secured by a first lien on the property located in Blocks 6 through 9 and a second lien on the property located in Blocks10 through 13 on San Jacinto. The loan is a balloon note due in full within 6 months ofthe sale. The property at 105 San Jacinto, currently owned by Texas Parks and Wildlife, was also discussed with a purchase price of $450,000. As noted above, a final Development Agreement will also have to be completed in the near future. However, in order to keep the project moving forward and begin the design stage we need to purchase the property. The by-laws of the Corporation require City Council confirmation of any action by the Board in which the funds involved exceed $15,000. URS Corporation was selected to complete the architectural renderings for the Town Plaza Project. Attached you will find a copy of the proposed Five Points Plaza Design and Studies Proposal. The cost submitted for the services is detailed on the attached proposal and is not to exceed $223,900.00. Action Reauired bv the City Council: Approve the actions of the LPEDC Board to complete the Sales and Earnest Money Contract for the purchase of the Triangle Property for $150,000 including the lease for the property at 117 San Jacinto, the loan of $150,000 to be secur the Deed of Trust and for the purchase of the property at 105 San Jacinto owned by Texas Parks and . life f r $450,000. attached Service Agreement between the La Porte Development Corporation and the URS e Five Points Plaza Design and Studies Proposal not to exceed $223,900.00. 10 ~ /as=> Date' Ii' A- --------- . ----~"- Memorandum of Understanding This Memorandum of Understanding (this UMOU") made by and entered into thisj6tl- day of September, 2008 (the UEffective Date") between the La Porte Development Corporation, a non-profit corporation organized under the laws of the State of Texas hereinafter (the uBoard"), East A Developments, LP, a Texas limited partnership (UEast A"), and La Porte 5 Points Properties, L.P., a Texas limited partnership ("LP5PP"). East A and LP5PP are collectively referred to as the uDeveJopei", whether one or many. The terms acceptable to both Parties to begin the First Phase of the Town Plaza Project are as follows: In consideration for title to the property described as 0.3297 acres of vacant land commonly known as the 'Triangle Property" the Board agrees to pay the Developer the sum of $150,000. The Board further agrees that the property is sold uas-is" and will be responsible for the removal of the underground storage tanks at the Boards expense. Typical fees and costs associated with the real estate transactions will be paid by each party accordingly. The Board also agrees to take the Developer assignment of the property located at 0 Virginia Street with the understanding that the approximate costs for the property at closing will be $55,000. Typical fees and costs associated with the real estate transactions will be paid by each party accordingly. Both Parties acknowledge that a parking covenant between the Board and the Developer will be included in a future Development Agreement with Conditions, Covenants and Restrictions (CCR's) for the property located at 0 Virginia Street. Those conditions will be with the understanding that the Developer shall have the option to build a parking garage upon the property in conjunction with his proposed office complex. Further that the Board shall negotiate in good faith as to their respective pro- rata share of costs for the garage, if any. However, both parties also acknowledge that the adjacent office complex wi!! require the majority of the parking and therefore, the Board participation will be substantially less than the Developer participation. The Board agrees to lease the building at 117 San Jacinto at a rate of $1.00/sq. ft, not to exceed $5,200/mo/nnn for a period of 36 months with subsequent renewal options. The parties also agree that the lease can be sublet to a tenant of the Boards choosing. A final lease agreement must receive all necessary approvals and be executed by all parties before the closing of the Triangle Property. The parties further agree that the Developer will be responsible for final finish out of the building in a manner agreeable to both parties before the first monthly rental payment is due. The Board also agrees to loan to Developer the sum of $150,000.00. The term of the loan will be 6 months and interest on that sum will accrue at 5% per year, compounding monthly. Developer will use that sum to purchase 109 and 111 San Jacinto from Wade 1 Cooper, which will be closed simultaneously with the sale of the Triangle Property. 109 and 111 San Jacinto will be security for the loan. The Developer has agreed to gift 1 % of the Development fees associated the development of the office complex to a special fund in support of the City "Art in Public Places Program" currently being developed up to a maximum of $150,000. The Texas Parks and Wildlife Commission has agreed to sell to the LPDC the property located at 115 San Jacinto Street, which currently houses the Texas Parks and Wildlife Region 4 Administration Staff. The agreed to price is $450,000 and a letter of intent directing staff to proceed with the paperv~ork will be sent to TPW on September 11, 2008. In the Development Agreement to be drafted the Developer will agree to purchase the property from the LPDC Board for $450,000. A timeline for performance as to the construction of office complex shall be included as a condition of the sale of the property to the Developer and also included in the final Development Agreement. This constitutes the initial, non-binding understanding between the parties in order to begin the process of land purchases and lay the groundwork for the final Development Agreement in order for the creation of the Town Plaza to proceed while assuring both parties that all elements in this Memorandum of Understanding. r J ~fH; Ms. Pat Muston, President La Porte Deve!opment Corporation c/frt tuflru )I~ Ali Attest: Martha Gillett, City Secretary EAST A DEVELOPMENTS, L.P. By: GSDB Management, L.L.C., it's General Partner /.,./'-"7 //'da 'tz , Garson Silvers Manager ,......<""J.. /' By: LA PORTE 5 POINTS PROPERTIES, L.P. By: GSBS La Porte Management, L.sP., it's General Partner ~A .~~ 4i/T) Garson Silvers /' L_-/ Manager By: 2 B PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into by and between LA PORTE 5 POINTS PROPERTIES, L.P., a Texas limited partnership ("Seller"), and LA PORTE ECONOMIC DEVELOPMENT CORPORATION, a Texas non-profit corporation ("Purchaser"), as ofthe Effective Date (as hereinafter defined). 1 Agreement. For and in consideration ofthe mutual benefits enjoyed by each ofthe parties to this Agreement, Seller agrees to sell and convey to Purchaser, and Purchaser agrees to purchase and accept conveyance of, the Property (as hereinafter defined) pursuant to the terms and conditions herein set forth. 2 The Property. The property which is the subject ofthisAgreement is the fee simple title in and to that certain real property, as more particularly described on Exhibit "A" attached hereto, together with all improvements, fixtures, equipment, and other personal property owned by Seller thereon, and located on or about or used in connection with said real property, if any, and all of Seller's right, title, and interest, if any, in and to all easements, tenements, hereditaments, privileges, and appurtenances in any way belonging or relating to the foregoing, including, without limitation, (i) any land to the midpoint of the bed of any highway, street, road, or avenue, open or proposed, in front of, abutting, or adjoining such land, (ii) any land lying in or under the bed of any creek, stream, bayou, or river running through, abutting, or adjacent to such land, (iii) any riparian, appropriative, or other water rights of Seller appurtenant to such land and relating to surface or subsurface waters, (iv) any oil, gas, or other minerals or mineral rights relating to such land or to the surface or subsurface thereof (v) any strips, gores, or pieces of property abutting, bounding or which are adjacent or contiguous to such land, and (vi) all easements, right-of.ways, rights of ingress, or egress and reversionary interests benefitting such land (collectively, the "Property"). 3 Purchase Price. Seller agrees to accept and Purchaser agrees to pay as consideration for the sale of the Property (the "Purchase Price"), subject to the terms of this Agreement, an amount equal to ONE HUNDRED FIFTY THOUSAND DOLLARS AND NO C~NTS ($150,000.00). - . 4 Seller's Title. Ten (10) days following the Effective Date, Seiler, at its sole cost and expense, shall furnish to Purchaser a Commitment for Title Insurance covering the Property prepared by Stewart Title Company (the "Commitment"), addressed to Purchaser, pursuant to which the Title Company shall commit to issue to Purchaser a Texas Owner's Policy of Title Insurance ("Title Policy"). 5 Survey. Purchaser acknow ledges that Seller has provided its most recent survey of the Property. Any further surveys will be done at Seller's sole cost and expense. 6 Documents Relating- to the Property. Fifteen (15) days following the Effective Date, Seller, at its sole cost and expense, shall deliver to Purchaser true and correct copies of the following documents and materials (collectively, the "Due Diligence Materials"): 6.1 any existing environmental reports concerning the Property in Seller's possession or under its direction and control; 6.2 copies of all tenant leases concerning the Property; 6.3 copies of all service contracts related to the Property; 6.4 copies of all insurance policies concerning or related to the Property; and 6.5 copies of all building plans and specifications related to the property. 7 On-Site Inspections. Until the Closing Date or earlier termination of this Agreement, Purchaser may, at Purchaser's expense, conduct all on-site inspections of the Property determined by Purchaser to be necessary or appropriate to determine whether the Property is suitable for Purchaser's intended use, including, without limitation, the testing and inspection of the Property (and its subsurface) for any environmental contamination and for its suitability for development, the taking of ground water and core samples, soil tests, topographical and fault studies, and all other surveys, studies, tests and analysis desired by Purchaser. Seller hereby grants to Purchaser and its designated agents or contractors the right to enter upon the Property to perform such inspections, tests, and other studies; provided, however, that (i) Purchaser shall repair any material physical damage or alteration to the Property resulting therefrom and (ii) PURCHASERSHALLINDEMNIFY,DEFEND,AND HOLD SELLER HARMLESS FROM AND AGAINST ANY DAMAGE, CLAIM, CAUSE OF ACTION, LIABILITY, COST (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES, AND COURT COSTS) OR OTHER OBLIGATION (collectively, "Entry Claims") CAUSED BY PURCHASER'S ENTRY UPON, INSPECTION OF, ALTERATION OF, TESTING OF, AND/OR DAMAGE OF THE PROPERTY, INCLUDING ANY SUCH ENTRY CLAIMS ARISING FROM THE NEGLIGENCE OF PURCHASER, PURCHASER'S AGENTS, CONTRACTORS, EMPLOYEES, ORANY OTHER PERSON WHO IS CAUSED BY PURCHASER TO HAVE ANY CONTACT WHATSOEVER WITH THE PROPERTY, OR SUCH ENTRY CLAIMS ARISING IN STRICT LIABILITY BY ANY SUCH PERSONS. The obligation of Purchaser to indemnify Seller under this Section shall survive the Closing or the earlier termination of this Agreement. 8 Permitted Encumbrances. "Permitted Encumbrances" means (i) taxes and assessments for the year 2008 and later, and any taxes and assessments which may arise from the change iri land ownership or usage; (ii) any matters which a surveyor physical inspection would disclose; (iii) the ordinances, zoning, restrictions, and similar regulations imposed by the City of La Porte or any other federal, state, or municipal authority of competent jurisdiction; and (iv) all matters " of record in the office of the County Clerk of "Harris County, Texas, to the extent the- same are valid, subsisting, and affect the property in question. 9 Warranties and Representations of Seller. Seller makes the following representations and warranties, all of which are true and correct as of the Effective Date, which shall be true and correct on the Closing Date (as hereinafter defined). 9.1 to the best of Seller's knowledge and belief, Seller has good, indefeasible, and insurable fee simple title in and to the Property, free and clear of all liens other than the Permitted Encum brances; 9.2 _ to the best of Seller's knowledge and belief, Seller has not granted to any person, firm, or entity, other than Purchaser, any right to purchase the Property or any portion "thereof which remaIns outstanding as of the Effective Date or which shall remain outstanding as of the date the same is conveyed to Purchaser, and there are no parties in possession of any portion of the Property; 9.3 to the best of Seller's knowledge and belief, there are no property agreements, warranties, permits, or other agreements relating to the ownership, operation or use of the Property other than those disclosed to Purchaser by Seller; 9.4 _ to the best of Seller's knowledge and belief, Seller has received no notice (and has no other knowledge) of any pending or threatened condemnation, special assessments, or similar proceedings affecting the Property; 9.5 Seller has full power and authority to enter into this Agreement and to assume and perform all of its obligations hereunder, and the execution and delivery of this Agreement and the performance by Seller of its obligations hereunder requires no further action or approval in order to constitute this Agreement as a binding and enforceable obligation of Seller; and 9.6 - Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code. 10 Warranties and Representations of Purchaser. Purchaser makes the following representations and warranties, all of which are true and correct as ofthe Effective Date, and which shall be true and correct on the Closing Date (as hereinafter defined). 10.1 Purchaser represents and warrants to Seller that Purchaser has been duly authori~ed to enter into this Agreement on the terms and conditions of this Agreement, that this Agreement is fully binding and enforceable against Purchaser, and the person executing this Agreement on behalf of Purchaser has the authority to do so; 10.2 Purchaser is duly organized and legally existing under the laws of the State of Texas, or can legally conduct business in the State of Texas; and 10.3 Purchaser is represented by counsel of its own selection and is not in a significantly disparate bargaining position with Seller. 11 Additional Covenants of Seller. Until the Closing, Seller covenants and agrees as follows: 11.1 Seller shall not commit any waste of the Property and shall keep the Property in substantially the same condition as its current condition, ordinary wear and tear excepted; and 11.2 Seller will promptly advise Purchaser in writing of any material changes, additions, deletions, or modifications in or to any ofthe Due Diligence Materials to be delivered to Purchaser, and shall provide Purchaser with true, correct and complete copies of such changes, additions, deletions or modifications. 12 Condemnation. 12.1 In the event any proceeding should be commenced for the taking in condemnation or under the power of eminent domain of all or any portion of the Property (a "Condemnation Proceeding"), Seller shall promptly give to Purchaser written notice of, and full information concerning, such Condemnation Proceeding and shall thereafter keep Purchaser fully informed concerning such Condemnation Proceeding. If a Condemnation Proceeding occurs prior to the Closing, Purchaser shall have the right to terminate this Agreement. Upon any termination of this Agreement, both parties shall be released from their obligations hereunder, except as to those obligations that are expressly to survive the termination of this Agreement. ;12..2 If Purchaser does not elect to terminate this Agreement as a result of a Condemnation Proceeding, and the Property is purchased by Purchaser while such Condemnation Proceeding is pending, then Purchaser shall be substituted for Seller as a defendant in such proceeding. In the event such Condemnation Proceeding is concluded while Seller is still the owner of the Property and Seller receives the condemnation award, then the Purchase Price for the Property shall be reduced by the amount of the condemnation award which is attributable thereto. If Seller has not received the condemnation award at the time of Closing, then the Purchase Price shall remain unchanged, and Seller shall assign to Purchaser all of the right, title and interest of Seller in such condemnation award. Seller agrees that Purchaser shall have the right, at Purchaser's expense, to participate in any Condemnation Proceeding: 13 Closing. 13.1 As used in this Agreement, the term "Cooper Property" means land in Harris County, Texas, consisting of all of Lots 6-8 and the North 18 feet of Lot 9, Block 198, Town of La Porte, as recorded in the Map Records of Harris County, Texas Volume 8, Page 16. As used in this Agreement, the term "Retail Property" means land in Harris County, Texas, consisting of the South seven (7) feet of Lot 9, all of Lot 10, the West fifty-six and four tenths (56.4) feet of Lots 11, 12 and 13 of Block 198 of the TOWN OF LA PORTE, as recorded in the Map Records of Harris County, Texas Volume 8, Page 16. 13.2 The consummation of the purchase and sale of the Property (the "Closing") shall take place at Stewart Title Company, 1900 North Loop West, Suite 600, Houston, Texas 77018 (the "Title Company"), at mutually agreed upon time on or before September 23, 2008 (the "Closing Date"). 13.3 At the Closing, Seller, at its sole cost and expense, shall deliver to Purchaser (or to the Title Company in escrow for delivery to Purchaser upon consummation of the purchase and sale provided for herein) the following closing documents (collectively, the "Closing Documents"): 13.3.1 A Special Warranty Deed for the Property (the "Deed") executed by Seller, duly acknowledged and in form for recording, substantially in the form attached hereto as Exhibit "C", which Deed shall convey to Purchaser, subject to the Permitted Exceptions and "AS IS" condition, good, indefeasible and insurable fee simple title to the Property, free and clear of all liens, encumbrances, covenants, conditions, restrictions, right-of-ways, easements and other matters affecting title, except the Permitted Encumbrances; 13.3.2 the Title Insurance Policy; 13.3.3 Seller's affidavit in a form reasonably acceptable to Purchaser and Seller, as required by Section 1445 of the Internal Revenue Code; 13.3.4 possession of the Property to Purchaser in accordance with the terms of this Agreement; 13.3.5 consents in the form attached hereto as Exhibit "B" for the Cooper Property and Retail Property executed by East A; 13.3.6 evidence, in form and content satisfactory to Purchaser and the Title Company, that the persons executing the instruments delivered at Closing on behalf of Seller have the authority to bind Seller to perform its obligations set forth therein; and 13.3.7 Such other documents and items as are contemplated to be delivered by Seller to Purchaser at the Closing pursuant to the other provisions of this Agreement. 13.4 At Closing, Purchaser shall execute all documents to be executed by Purchaser and deliver to Seller (or to the Title Company in escrow for delivery to Seller) the remaining portion of the Purchase Price (less any credits to which Purchaser is entitled pursuant to the terms hereof). The failure of Purchaser to fully fulfill all of its obligations under this Section shall be an Event of Default. 13.5 After the Closing, neither party hereto shall have any further rights, duties or obligations to the other pursuant to this Agreement other than those arising pursuant to the provisions hereof that are expressly to survive the Closing and those arising pursuant to-the documents executed and delivered at the Closing. 13.6 The obligation of either party is contingent upon the execution of a lease by Purchaser, _ as tenant, and East A, as landlord, of the Retail Property at a rental rate of $1.00 per square foot per month, for a term of three (3) years, and under any other terms as East A and the Purchaser may agree. 13.7 Simultaneous with Closing, Purchaser shall loan to East A Developments, L.P. ("East A") the sum of $150,000.00 for the purchase of the Cooper Property under the terms of the promissory note attached hereto as Exhibit "D" ("Promissory Note"). Such loan shall be secured by a lien against Cooper Property and Retail Property; such lien being evidenced by the deed of trust attached hereto as Exhibit "E" (the "Deed of Trust"). East A shall, at Closing, (i) close on the purchase of the Cooper Property from Wade Cooper (at such time all liens must be released from the Cooper Prope-rty) in accordance with the terms of that certain Commercial Contract -- Improved Property by and between East A and Wade Cooper, (ii) execute the Promissory Note and Deed of Trust, (iii) execute the consent attached hereto as Exhibit "B", (iv) execute a Special Warranty Deed in the form attached hereto as Exhibit "F", and (v) obtain a Mortgagee's Title Insurance Policy for Seller for the Cooper Property an.d Retail Property(which may be paid by the seller ofthe Cooper Property). EastA's obligations under this Agreement are contingent upon Purchaser's performance of all obligations under this Agreement (including those to Seller). East A shall be subrogated to all rights of Seller under this Agreement, including any remedies, claims, offsets, and defenses, and without limiting the generality of the foregoing, may offset any sums East A owes under the Promissory Note with any sums Purchaser owes East A and/or Seller under this Agreement. 14 Closing- Costs. 14.1 Seller agrees to pay for the cost of the Owner's title policy premium, all charges for tax certificates, all charges for the preparation and recordation of any releases or instruments required to clear Seller's- title for conveyance in accordance with the provisions of this Agreement, and one-half (112) of any escrow fee charged by the Title Company. 14.2 Purchaser agrees to pay all charges for the recordation of the instruments conveying title to the Property, one-half (1/2) of any escrow fee charged by the Title Company, the costs of any recording fees which Seller is not obligated to pay above, the cost of any rollback taxes or similar fee resulting from the transfer of the Property or changed use of the Property; and all other fees payable by Purchaser under this Agreement. 14.3 All other costs, charges and expenses in connection with each closing shall be allocated between Purchaser and Seller as specified in this Agreement, or absent such specification, in accordance with the customary practices in Houston, Harris County, Texas. 15 Property Taxes. All property taxes assessed against the Property for the year 2008 and beyond are the responsibility of Purchaser. 16 Remedies. 16.1 Purchaser will be in default if any of the following occurs ("Event of Purchaser Default"): 16.1.1 Purchaser fails to perform any covenant in this Agreement; 16.1.2 any representation or warranty of Purchaser is untrue or becomes untrue; or 16.1.3 Purchaser (1) becomes insolvent; (2) makes a transfer in fraud of creditors; (3) makes an assignment for the benefit of creditors; (4) files' a 'petition under any section or chapter of the Federal Bankruptcy Code, as ameqded, or under' any similar law or statute of the United States or any State thereof; (5) is adjudged bankrupt or insolvent; or (6) becomes subject to an appointed receiver or trustee. 16.2 Upon the occurrence of an Event of Purchaser Default, Seller shall notify Purchaser of such default in accordance with the notice provisions of this Agreement, and Purchaser shall cure such Event of Purchaser Default within ten (10) days of the same. Upon the expiration of such ten (10) days, Seller may exercise anyone or more of the following remedies to the extent they are not inconsistent: 16.2.1 terminate this Agreement and neither party will-be further obligated hereby;_ 16.2.2 seek specific performance of any obligations of Purchaser hereunder; or 16.2.3 seek any relief provided at law or in equity. 16.3 Seller will be in default if any of the following occurs ("Event of Seller Default"): 16.3.1 Seller fails to perform any covenant in this Agreement; 16.3.2 any representation or warranty of Seller is untrue or becomes untrue; or 16.3.3 Seller (1) becomes insolvent; (2) makes a transfer in fraud of creditors; (3) makes an assignment for the benefit of creditors; (4) files a petition under any section or chapter of the Federal Bankruptc;y Code, as amended, or under any similar law or statute ofthe United States or any State thereof; (5) is adjudged bankrupt or insolvent; or (6) becomes subject to an appointed receiver or trustee. 16.4 Upon the occurrence of an Event of Seller Default, Purchaser shall notify Seller of such default in accordance with the notice provisions of this Agreement, and Seller shall cure such Event of Seller Default within ten (10) days of the same. Upon the expiration of such ten(10) days, Purchaser may exercise anyone or more of the following remedies to the extent they are not inconsistent: 16.4.1 terminate this Agreement and neither party will be further obligated hereby; 16.4.2 seek specific performance of any obligations of Seller hereunder; or 16.4.3 seek any relief provided at law or in equity. 17 Real Estate Commissions. Each party hereto represents to the other that it has not authorized any broker or finder to act on its behalf in connection with the sale and purchase hereunder and that such party has not dealt with any broker or finder purporting to act on behalf of any other party. Each party hereto agrees to indemnify and hold harmless the other party from and against any and all, losses, liens, claims, judgments, liabilities, costs, expenses or damages (including reasonable attorneys' fees and court costs) of any kind or character arising out of or resulting from any agreement, arrangement or understanding alleged to hav'e been made by such party or on its behalf with any broker or finder in connection with this Agreement or the transaction contemplated hereby. This paragraph shall survive the Closing or any termination of this Agreement. 18 Notices. All notices, requests or permissions required or permitted 'to be given to either Purchaser or Seller under the terms of this Agreement shall be sufficient if they are in writing and mailed registered or certified mail, return receipt requested, or delivered in person, as follows: To Purchaser: La Porte Economic Development Corporation City of La Porte, Texas 604 W. Fairmorit Parkway La Porte, Texas 77571 Attention: Ron Bottoms, City Manager with copy to: Askins and Askins, P .C. lo~ /W. FairmontParkway> Lo.. P&1Itl I~ IllO'l Attention: Clark T. Askins ~ To Seller: La Porte 5 Points Properties UVL 1001 Usener Houston, Texas 77007 With a copy to: Benjamin P. Miller Attorney and Counselor at Law 4900 Woodway Drive, Suite 517 Houston, Texas 77056 Tel: 713-892-5400 Fax: 713-892-5401 bpmiller82@gmail.com 19 Effective Hate.. . The "Effective Date'~meanst11-e date of acknowledgment of receipt of lLfUlly executed copy of this Agreement by the Title Company as provided below. The party offering the Agreement may withdraw the offer at any time prior to its acceptance by the party to whom this Agreement is offered. 20 Miscellaneous. 20.1 This Agreement shall be construed and interpreted in accordance with the laws of the State oJ Texas. 20.2. Time is of the essence as to all matters contained in this Agreement. 20.3 If the final day .ofany time period or limitation set out in any provision of this Agreement falls on .a-Saturday, Sunday, or legal holiday recognized by tIie United States government or the State of Texas, then and in such event the time of such period or limitation shall be extended to the next day which is not a Saturday, Sunday or such legal holiday. 2004 In the event of any controversy, claim or dispute between the parties arising from or relating to this Agreement (including, but not limited to, the enforcement of any indemnity provisions), the prevailing party shall be entitled to recover reasonable costs, expenses and attorneys' fees. For all purposes of this Agreement and any other documents relating to this Agreement, the terms "attorneys' fees" or "counsel fees" shall be deemed to include paralegals and legal assistants' fees, and wherever provision is made herein or therein for the payment of attorneys' or counsel fees or.expenses, such provision shall include, but not be limited to, such fees and expenses (and any applicable sales taxes thereon) incurred in any and all judicial, bankruptcy, reorganization, administrative or other proceedings, including appellate proceedings, whether such fees or expenses arise before proceedings are commenced or after entry of.a final judgment. 20.5 This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument. 20.6 This Agreement may not be modified or amended except by a subsequent agreement in writing signed by both Seller and Purchaser. Purchaser and Seller may waive any of the conditions herein or any of the obligations of the other party hereunder, but any such waiver shall be effective only if in writing and signed by the. party waiving such condition or obligation. 20.7 This Agreement, including the exhibits, schedules, and attachments attached thereto (all of which shall be deemed incorporated into this Agreement by reference), constitutes the entire agreement and understanding between the parties hereto and supersedes allprior and contemporaneous agreements and understandings of the parties in connection therewith. No statements, agreements or understandings, representations, warranties or conditions not expressed in this Agreement shall be binding upon the parties hereto, or shall be effective to interpret, change or restrict the provisions of this Agreement unless such is in writing signed by the party against whom enforcement thereof is sought. No oral agreements exist between the parties. 20.8 If any provision of this Agreement or application to any party or circumstances shall be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of this Agreement or the application of such provision to such person or circumstances, other than those as to which it is so determined invalid or unenforceable, shall not be affected thereby, and each provision hereof shall be valid and sha11be el1forced to the fullest extent permitted by law. 20.9 The captions in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope of this Agreement or the scope or content of any of its provisions. 20.10 All exhibits described herein and attached hereto are fully incorporated into this Agreement by this reference for all purposes. 20.11 Except as expressly set forth herein or called for herein or called for in any of the instruments attached as exhibits hereto, SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS of any kind or character, express or implied, with respect to the Property, its physical condition, income to be derived therefrom or expenses to be incurred-with resp-ectthereto, or with respect to information or documents previously furnished to Purchaser or furnished to Purchaser pursuant to this Agreement, or with respect to Seller's obligations or any other matter or thing relating to or affecting the same, and there are no oral agreements, warranties or representations collateral to or affecting the Property except as may otherwise be expressly set forth herein. Notwithstanding anything contained herein to the contrary, this Section shall survive the Closing or any termination ofthis Agreement. PURCHASER ACKNOWLEDGES THAT THE CONVEYANCE OF THE PROPERTY IS SPECIFICALLY MADE "AS-IS" AND "WHERE-IS" WITH ALL FAULTS, WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (EXCEPT AS TO TITLE AS LIMITED IN THIS AGREEMENT), INCLUDING, WITHOUT - LIMITATION, IMPLIED WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE, HABITABILITY, SUITABILITY, TENABILITY, OR MERCHANTABILITY OR ANY OTHER WARRANTIES WHATSOEVER CONTAINED IN OR CREATED BY THE TEXAS BUSINESS AND COMMERCE CODE, UNDER THE LAWS OF THE STATE OF TEXAS, OR OTHERWISE. PURCHASER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER SELLER NOR ANY OF ITS AGENTS HAVE MADE, AND SPECIFICALLY NEGATE AND DISCLAIM, ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, OF, AS TO, CONCERNING, OR WITH RESPECT TO, (i) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (ii) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH MAY BE CONDUCTED THEREON, (iii) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR .FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, OR (iv) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY. PURCHASER SHALL RELY SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER OR ITS AGENTS OR CONTRACTORS EXCEPT AS CONTAINED IN THIS AGREEMENT. SELLER SHALL NOT BE LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR THE OPERATION THEREOF, FURNISHED BY ANY PARTY PURPORTING TO ACT ON BEHALF OF SELLER, EXCEPT AS CONTAINED IN THIS AGREEMENT. 20.12 Purchaser acknowledges that the Property may contain one or more underground storage tanks thereon. Purchaser shall assume all liability for such tanks, all responsibility for the removal of such tanks, and all costs associated therewith. 20.13 Purchaser shall not have the right to assign its interest in this Agreement without obtaining the prior written consent of Seller. Purchaser hereby agrees that any assignment by Purchaser in contravention of this provision shall be void and shall not relieve Purchaser of its obligations and liabilities hereunder. 20.14 This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, successors and assigns. Whenever in this Agreement a reference is made to any of the parties hereto, such reference shall be deemed to include a reference to the heirs, legal representatives, successors and assigns of such parties. 20.15 Purchaser is hereby notified as to the following: Seller makes no representations or warranties as to the existence of or applicability of any homeowners' associations. However, restrictive covenants governing the use and occupancy of the property and a dedicatory instrument governing the establishment, maintenance, and operation ofthis residential community may have been or will be recorded in the Real Property Records of the county in which the property is located. Copies of the restrictive covenants and dedicatory instrument may be obtained from the county clerk. Seller makes no representation as to whether membership may be required presently or in the future in any such homeowners' association. Seller makes no warranties or representation as to the applicability, enforceability, and/or existence of any restrictive covenants, and Purchaser acknowledges that Purchaser has not relied on any representations, warranties, and/or materials made, provided, or delivered by seller. Purchaser acknowledges that it has used its own due diligence to research and investigate any homeowners' associations and/or RestrIctive Covenants, their applicability, enforceability, existence, and affect on the feasibility of any use Purchaser is contemplating. 20.16 Additional Notices. 20.16.1 Purchaser should have an abstract covering the Property examined by an attorney of Purchaser's selection, or Purchaser should obtain a title policy, 20:16.2 If.the Property is situated i.D. a utility or other statutorily created. district providing water, sewer, drainage, or flood control facilities and services, Chapter 49, Texas Water Code, requires Seller to deliver and Purchaser to sign the statutory notice relating to the tax rate, bonded indebtedness, or standby fees of the district before final execution of this contract. 20.16.3 Notice required by Section 13.257 ofthe Texas Water Code: "The real property, described in Exhibit "A", that you are. about to purchase may be located in a certificated water or sewer service area, which is authorized by law to provide water or sewer service to the properties in the certificated area. If your property is located in a certificated area, there may be special costs or charges that you will be required to pay before you can receive water or sewer service. .There may be a period required to construct lines or other facilities necessary to provide water or sewer service to you property. You are advised to determine if the property is in a certificated ar.ea and contact the utility service provider to determine the cost that you will be required to pay and the period, if any, that is required to provide water or sewer service to your property. The undersigned purchaser hereby acknowledges receipt of the foregoing notice at or before the execution of a binding contract for the purchase of the realprope.rty described in the notice or at closing of purchase of the real property." The real property is described in Exhibit "A" of this Agreement. 20.16.4 If the Property is located outside the limits of a municipality, the Property may now or later be included in the extraterritorial juris.diction ("ETJ") of a municipality and may now or later be subject to annexation by the municipality. Each municipality maintains a map that depicts its boundaries and ETJ. To determine if the Property is located within a municipality's ETJ, Purchaser should contact all municipalities located in the general proximity ofthe Property for further information. 20.16.5 Brokers are not qualified to perform property inspections, surveys, engineering studies, environmental assessments, or inspections to determine compliance with zoning, governmental regulations, or laws. Purchaser should seek experts to perform such services. Selection of inspectors and repairmen is the responsibility of Purchaser. IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the date set forth below, but shall be effective as ofthe Effective Date. SELLER: LA PORTE 5 POINTS PROPERTIES, L.P. By: GSBS La Porte Management, L.L.C.,. I it, General Partner 4 BY' /;;:7~ ~ . ~ Garson Silvers Manager r /I[)ICJ~ I I I Date: PURCHASER: Patiicia Muston, President Date: q- 10- O~ ATTEST: vfYl{1Jt1t~ r<I till Secretary of the Corporation EAST A: EAST A DEVELOPMENTS, L.P. By: Garson Silvers ...;..-- By: GSDB Management, L.L.C., its General Partner ~ L~------ Date: M9ft[)JD~ The undersigned, as escrow agent, hereby acknowledges receipt of a fully executed original of this Agreement. Received this _ day of September, 2008 STEWART TITLE COMPANY By: Name: Title: EXHIBIT "A" Legal Description of the Property: TRACT 1: Lots 1 through 9 of Block 199 of the TOWN OF LA PORTE, as recorded in the Map Records of Harris County, Texas Volume 8, Page 16 TRACT 2: All of Seller's right, title and interest in and to the. abutting 100' wide public right -of-way known as San Jacinto Street Exhibit "B" September _, 2008 Planning Department City of La Porte City Hall 604 West Fairmont Parkway La Porte, TX 77571 Re: Application to Close that Portion of San Jacinto Street, Based on 100' Right-of- Way, Lying and Being Situated Between Blocks 198 and 199, in the Town of La Porte, Harris County, Texas. Gentlemen: The undersigned, as owners and lienholders of properties in Blocks 198 and 199, Town of La Porte, Harris County, Texas, abutting the above described portion of the San Jacinto Street right-of-way, do hereby make application to the City of La Porte, under the provisions of Section 62-31, et seq, of the Code of Ordinances of the City of La Porte, to vacate, abandon, and close said portion of the right-of-way of San Jacinto Street within the corporate limits of the City of La Porte. East A Developments, L.P., a Texas limited partnership, is the owner of the following real property: All of Lots 6,7,8,9,10, and the West fifty-six and four tenths (56.4) feet of Lots 11, 12 and 13, in Block One Hundred Ninety-Eight (198) of TOWN OF LA PORTE, an addition in Harris County, Texas, according to the map or piatthereofrecorded in Volume 8, Page 16 of the" Map Records of Harris County, Texas. La Porte Economic Development Corporation, a Texas non-profit corporation, is the owner of Lots 1 through 9, both inclusive, being all of Block 199, of the Town of La Porte, Harris County, Texas. La Porte Economic Development Corporation, a Texas non-profit corporation, is the first lienholder on all of Lots 6, 7, and 8, and the North 18 feet of Lot 9, Block 198, Town of La Porte, as recorded in the Map Records of Harris County, Texas Volume 8, Page 16, owned by East A Developments, L.P., a Texas limited partnership. East A Developments, L.P., has conveyed to La Porte Economic Development Corporation, all of its right, title, and interest in and to the San Jacinto Street right-of- way which abuts Lots 6 through 13, Block 198, Town of La Porte, Harris County, Texas. Gagle Investments consents to said conveyance. Gagle Investments, is the first lienholder on the South seven (7) feet of Lot 9, all of Lot 10, the West fifty-six and four tenths (56.4) feet of Lots 11, 12 and 13 of Block 198 of the TOWN OF LA PORTE, as recorded in the Map Records of Harris County, Texas Volume~, Page 16, owned by East A Developments, L.P., a Texas limited partnership. The undersigned contemplate that the above described portion of the right-of-way of San Jacinto Street, will be incorporated, together with Block 199, Town of La Porte, Harris County, Texas, into a tract of land to be owned by the La Porte Economic Development Corporation, a Texas non-profit corporation (LPEDC), which tract ofland will be developed by LPEDC as a public park in the City of La Porte. All application fees shall be the responsibility of LPEDC. The undersigned waive any personal claims for damages against the City of La Porte, and further agree to save and hold harmless the City bfLa Porte from any other claims that may arise against the City of La Porte in vacating, abandoning and closing the above described portion of the right-of-way of San Jacinto Street, under Section 62-31, et seq, of the Code of Ordinances of the City of La Porte. Yours very truly, OWNERS: LAPORTE ECONOMaCDEVELOPMENT CORPO TIO v By: EAST A DEVELOPMENTS, L.P. By: By: GSDB Management, L.L.C., its General Partner Garson Silvers Manager LIENHOLDERS: LAPORTE ECONOMaC DEVELOPMENT ::RPOp;~ . Printed Name: ~mu5fD;J President GAGLEINVESTMENTS By: Printed Name: President Exhibit "C" NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AND INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. ~pttinl mnrrnnttl mtt~ THE STATE OF TEXAS COUNTY OF HARRIS ~ ~ ~ Know All Men By These Presents: That LA PORTE 5 POINTS PROPERTIES, L.P., a Texas limited partnership, . ("Grantors", whether one or more), for and:in consideration of the sum ofTen Dollars ($10.00) and other good and valuable consideration to Grantors this day paid by LA PORTE ECONOMIC DEVELOPMENT CORPORATION, a Texas non-profit corporation ("Grantees", whether one or more), of Harris County, Texas, the receipt and sufficiency ofwmch is hereby acknowledged, have GRANTED, BARGAINED, SOLD and CONVEYED and by these presents do GRANT, BARGAIN, SELL and CONVEY unto Grantees all of the real and personal. property situated :in Harris County, Texas, described more particularly :in Exhibit "A", attached hereto and incorporated by reference. This conveyance is executed by Grantors and accepted by Grantees subject to (i) taxes and assessments for the year 2008 and later, and any taxes and assessments which may arise from the change :in land ownership or usage; (ii) any matters which a surveyor physical :inspection would disclose; (iii) the ordinances, zoning, restrictions, and similar regulations imposed by the City of La Porte or any other federal, state, or municipal authority of competent jurisdiction; and (iv) all matters of record :in the office of the County.Clerk of Harris County, Texas, to the extent the same are valid, subsisting, and affect the property:in question. (collectively, the "PermittedExceptions'j. THE IMPROVEMENTS, IF ANY, LOCATED UPON THE SUBJECT PROPERTY ARE CONVEYED AND ACCEPTED "AS IS", "WHERE IS", 'WITH ALL FAULTS", IN THEIR PRESENT CONDITION, OF ANY KIND, WHETHER EXPRESS- OR IMPLIED, OTHER THAN THE EXPRESS WARRANTIES OF TITLE MADE HEREIN. THE WARRANTIES OF HABITABILITY, SUITABILITY, TENABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTIES WHATSOEVER CONTAINED IN OR CREATED BY THE TEXAS BUSINESS AND COMMERCE CODE, TEXAS PROPERTY CODE, UNDER THE LAWS OF THE STATE OF TEXAS, OR OTHERWISE, ARE EXPRESSLY DISCLAIMED. GRANTEE ACCEPTS ALL LIABILITY FOR ALL COSTS, LIABILITY, ~D CLAIMS RELATING TO, OR RESULTING FROM, THE CONDITION OF THE SUBJECT PROPERTY, INCLUDING ANY UNDERGROUND STORAGE TANKS OR , ' ENVIRONMENTAL HAZARDS THEREON. TO HAVE AND TO HOLD the Subject Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantees, their heirs, administrators, successors and assigns, forever; and Grantors do hereby bind tnemselves,and their heirs, administrators, successors ahd assigns; to WARRANT AND FOREVER DEFEND, all and singular, the Subject Property unto Grantees, and'their heirs, administrators, successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantors, but not otherwise, and subject to the Permitted Exceptions and taxes for the current year , " and subsequent assessments for prior years due to change in land usage or ownership. EXECUTED this the t ulV-day .of ~ m fJf ( . 2008. LA PORTE 5 POINTS PROPERTIES, L.P. By: GSBS La Porte Management, L.L.C., its General Partner Garson Silvers, Manager By: "Grantors" THE STATE OF TEXAS ~ ~ COUNTY OF HARRIS ~ This instrument was acknowledged before me on this loll-day of September . 2008, by Garson Silvers, as manager of GSBS La Porte Management, L.L.C., as gen~ral partner of LA PORTE 5 POINTS PROPERTIES, L.P. .. 1?'~ ROBIN R. ELDRIDGE (~[*~?I::::\ MY COMMiSSION EXPIRES ~~...~" . JUP/16 20tO . . "Oie~,.e.. .6 . !u~ 1.lJ~ ~ Notary Public in and for. . gc .. The State of Texas ADDRESS OF GRANTEES: AFTER RECORDING, RETURN TO: 604 W. Fairmont Parkway La Porte, Texas 77571 H:'\Ben \.Client Files'\East A Developments LP\.380 Agreement with the City of La Porte\J'SA04.wpd\.091008142357 SPECIAL WARRANTY DEED ExHIBIT "A" DESCRIPTION OF REAL PROPERTY TRACT 1: All of Lots 1 through 9 of Block 199 of the TOWN OF LA PORTE, as recorded in the Map Records of Harris County, Texas Volume 8, Page 16 TRACT 2: All of Seller's right, title and interest in and to the abutting 100' wide public right -of-way known as San Jacinto Street Exhibit "D" PROMISSORY NOTE This Promissory Note (this "Note") is made by East A Developments, L.P., as maker, under the terms and conditions as follows: Article I DEFINITIONS For purposes of this Note, the following defined terms shall have the meanings set forth in this Article 1: 1.1 "Borrower" means East A Developments, L.P., a Texas limited partnership. 1.2 "Borrower's Mailing Address" means 1001 Usener, Houston, Harris County, Texas 77007. 1.3 "Leniler" means lja Porte Economic Development Corporation, a Texas non-profit corporation. 1.4 "Place for Payment" means 604 W. Fairmont Parkway, La Porte, Texas 77571. 1.5 "PrincipalAmounf' means One Hundred Fifty Thousand Dollars and No Cents ($150,000.00). 1.6 "Annual Interest Rate" means Five Percent (5.00%) per year. 1. 7 "Maturity Date" means the first day'ofthe month following six (6) months after the Effective Date. 1.8 "PSA" means that certain Purchase and Sale Agreement by and between Lender and Borrower, dated September _, 2008. The PSA is hereby incorporated by reference. 1.9 "Effective Date" means September _, 2008 Article IT TERMS OF PAYMENT 2.1 Borrower promises to pay to the order of Lender the Principal Amount plus interest, compounding annually, at the Annual Interest Rate, the same being due and payable in equal monthly installments of Six Hundred Twenty-Five Dollars and No Cents ($625.00), on the first day of each month, beginning the first day of the calendar month after the Effective Date, and continuing until the Maturity Date, when the entire amount of remaining principal and accrued, unpaid interest will be payable in full. 2.2 Payments will be applied first to accrued interest and the remainder to reduction of the Principal Amount. 2.3 This Note is payable at the Place for Payment. 2.4 All unpaid amounts are due by the Maturity Date, at which time they will reach maturity. After maturity, Borrower promises to pay any unpaid principal balance plus interest at the Annual Interest Rate. 2.5 Borrower may prepay this Note in any amount at any time before the Maturity Date without penalty or premium. 2.6 This Note is secured by a deed of trust of even date herewith from Borrower to Knox Askins, trustee, (the "Deed of Trust") which covers the followmg real property (such real property being the "Collateral Security"): All of Lots 6,7,8,9,10, and the West fifty-six. and four tenths (56.4) feet of Lots 11, 12 and 13, in Block One Hundred NinetycEight (198) of TOWN OF LA PORTE, an addition in Harris County, Texas, according to the ma.p or plat thereof recorded in Volume 8, Page 16 of the Map Records of Harris County, Texas. 2.7 If Lender is obligated to indemnify Borrower under the terms of the PSA or if Lender defaults on the PSA, Borrower may elect to apply the amounts owed under the PSA to the outstanding, unpaid principal and accrued, unpaid interest, and such sums will be reduced by tha.t amount. Article III DEFAULT 3.1 An "Event of Default" exists under this Note if: 3.1.1 Borrower fails to timely payor perform any obligation or covenant in this Note; 3.1.2 any warranty, covenant, or representation in this Note is materially false when made; 3.1.3 a receiver is appointed for Borrower or the Collateral Security; 3.1.4 any Collateral Security is assigned for the benefit of creditors; 3.1.5 a bankruptcy or insolvency proceeding is commenced by Borrower and continues for at least sixty (60) days; or 3.1.6 Borrower is dissolved, begins to wind up its affairs, or is authorized to dissolve or wind up its affairs by its governing body or persons. 3.2 If an Event of Default exists under this Note or the Deed of Trust, Lender may declare the unpaid principal balance, earned interest, and any other amounts owed on the Note immediately due. 3.3 If an Event of Default exists under this Note, before exercising any of Lender's remedies under this Note or the Deed of Trust, Lender shall first give Borrower written notice of defaUlt at Borrower's Mailing Address and Borrower will have ten (10) days after such notice is received to cure the default. In the event that this Section 3.3 conflicts with any other provision in this Note, this Section 3.3 will control. Article IV MlSCELLANEOUS 4.1 Interest on the debt evidenced by this Note will not exceed the maximum rate or amount of nonusurious interest that may be contracted for, taken, reserved, charged, or received under law. Any interest in excess ofthat maximum amount will be credited on the Principal Amount or, if the Principal Amount has been paid, refunded. On any acceleration or required or permitted prepayment, any excess interest will be canceled automatically as ofthe acceleration or prepayment or, if the excess interest has already been paid, credited on the Principal Amount or, if the Principal Amount has been paid, refunded. This provision overrides any conflicting provisions in this Note and all other instruments concerning the debt. 4.2 Whenever a period of time in this Note is prescribed for action to be taken by Borrower, Borrower will be liable or responsible for, and there will be excluded from the computation of any corresponding deadline, any delays due to strikes, riots, acts of God, shortages of labor or materials, war, government laws, regulations or restrictions or any other causes of any kind whatsoever which are beyond the reasonable control of Borrower. .4.3 . The section and paragraph headings, titles and captions used in this Note are for convenience only and do not limit or amplify the provisions hereof. 4.4 Lenderand'Borrower each acknowledge that he has participated in the dTafting of this Note, that this Note will not be construed against either party because it was the drafter, and that any rule of construction requiring that any provision ofthis Note be construed against a particular party because of that party's status as the drafter of the provision will be not be applicable to this Note. 4.5 When the context requires, singular nouns and pronouns include the plural. 4.6 This note will be construed under the laws of the State of Texas, without regard to choice-of-Iaw rules of any jurisdiction. To the maximum extent permitted by law, venue for all purposes will be the Harris County, Texas. EXECUTED AND EFFECTIVE AS OF THE EFFECTIVE DATE. . EAST A DEVELOPMENTS, L.P. By: GSDB Management, L.L.C., its General Partner By: ~~~ Garson Silvers, ..- - "'-J Manager Exhibit "E" NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. DEED OF TRUST THE STATE OF TEXAS COUNTY OF HARRIS g g g Know All Men By These Presents: THAT, this Deed of Trust ("Deed of Trust") is effective as of September _, 2008 (the "Effective Date"), from EAST A DEVELOPMENTS, L.P., a Texas limited partnership (the "Grantor", whether one or more), to KNOX ASKINS, TRUSTEE (the "Trustee"), for the benefit of the La Porte Economic Development Corporation, a Te:xas non-profit corporation (the "Beneficiary"); and WHEREAS, Grantor has executed and delivered to Beneficiary that certain Note (as defined below) in conjunction with the execution ofthat certain Purchase and Sale Agreement by and between La Porte 5 Points Properties, L.P., Grantor and Beneficiary, dated September _, 2008 (the "PSA"); . WHEREAS, Grantor and Beneficiary desire to secure payment of that Note with the Property described below; NOW, THEREFORE, in consideration of the sum of$10.00, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY in trust unto Trustee, and his substitutes or successors, all of the following described property (the "Property") situated in Harris County, Texas: ,. All of Lots 6, 7, 8, 9, 10, and the West fifty-six and four tenths (56.4) feet of Lots 11,12 and 13, in Block One Hundred Ninety-Eight (198) of TOWN . OF LA PORTE, an addition in Harris County, Texas, according to the map or plat thereof recorded in Volume 8, Page 16 of the Map Records of Harris County, Texas. TO HAVE AND TO HOLD the Property in trust unto Trustee, his successors in this trust and his assigns, forever, and Grantor does hereby bind Grantor, his respective heirs, legal representatives, successors and assigns, to warrant and defend the Property to Trustee, his successors and assigns, forever, against the claim or claims, of all persons whomsoever claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise, subject to the following exceptions: (i) any and all liens, encumbrances, reservations, restrictions, covenants, easements, rights of way, mineral interests and other matters, if any, of record in the County Clerk's Office of Harris County, Texas; (ii) all zoning, ordinances, regulations, restrictions, and other limitations imposed by any municipality with jurisdiction over the Property; and (ill) all matters which a survey and a physical inspection of the Property would reveal. If Grantor performs all the covenants and pays the Note according to its terms, this Deed of Trust shall have }10 further effect, and Beneficiary shall promptly release it. Article I CONVEYANCE IN TRUST; PROMISSORY NOTE 1.1 Securing Payment In Trust. This conveyance is made IN TRUST to secure payment of that certain Promissory Note of even date herewith, in the principal amount of $150,000.00, executed by Grantor, as maker, and payable to the order of Beneficiary, bearing interest and being payable as therein provided (the "Note"). To the extent that this Deed of Trust conflicts with the PSA, the PSA will control. The Agreement is hereby incorporated into this Deed of Trust by reference. 1.2 Payment of Note. The Note shall be payable at the address specified in the Note until Beneficiary gives written notice to Grantor designating another place of payment. 1.3 Application of Payments. All payments received by Beneficiary, however designated, shall be applied to the principal or interest of the Note or to expenses provided for in this Deed of Trust, or any combination of the foregoing, as directed by Beneficiary in accordance with the provisions of the Note. Article II GRANTOR'S OBLIGATIONS 2.1 General Obligations. Grantor shall: 2.1.1 keep the property in good repair and condition; 2.1.2 pay all taxes and assessments on the property when due; and 2.1.3 preserve the lien's priority as it is established in this Deed of Trust; 2.2 Required Insurance Policy. Grantor shall maintain, in a form acceptable to Beneficiary, an insurance policy that: 2.2.1 covers all improvements for their full insurable value as determined when the policy is issued and renewed, unless Beneficiary approves a smaller amount in writing; 2.2.2 contains an 80% coinsurance clause; 2.2.3 provides fire an<:l extended coverage, including windstorm coverage; 2.2.4 protects Beneficiary with a standard mortgage clause; and 2.2.5 provides flood insurance at any time the property is in a flood hazard area. 2.3 Insurance Policy Covenants. Grantor shall do the following things related to the above- mentioned insurance policy: 2.3.1 comply at all times with the requirements ofthe 80% coinsurance clause; 2.3.2 deliver the insurance policy to Beneficiary and deliver renewals to Beneficiary at least ten days before expiration; and 2.3.3 keep any buildings occupied as required by the insurance policy. 2.4 Prior Liens. If this Deed of Trust is not a first lien, Grantor shall pay all prior lien notes that Grantor is personally liable to pay and abide by all prior lien instruments. 2.5 Subsequent Liens. Grantor may obtain other liens or security interests securing the lending of money for the construction, affixation, creation, purchase, or addition of improvements of any type or nature to the Property (including, but not. limited to, so called construction loans), and such other liens shall be superior to this Deed of Trust. Article ill . BENEFICIARY'S RIGHTS 3.1 Successor Trustees. Beneficiary may appoint in writing a substitute or suc~essor trustee, succeeding to all rights and responsibilities of Trustee, provided that Beneficiary does so in writing, provides a copy of the same to Grantor promptly upon doing so, and records the same in the Real Property Records of Harris County, Texas. 3.2 Application ofInsurance Proceeds. Beneficiary may apply any proceeds received under the insurance policy either to reduce the Note or to repair or replace damaged or. destroyed improvements covered by.the.policy. 3.3 Beneficiary Performance of Obligations. If Grantor fails to perform any of Grantor's obligations, Beneficiary may perform those obligations and be reimbursed by Grantor on demand for any sums so paid, including attorney's fees, plus interest on those sums from the dates of payment at the rate stated in the Note for matured, unpaid amounts. The sum to be reimbursed shall be secured by this Deed of Trust. 3.4 Grantor Default. If Grantor :defaults on the Note or fails to perform any of Grantor's obligations and the default continues after Beneficiary gives Grantor notice of the default and the time within which it must be cured, as may be required by law or by written agreement, then Beneficiary may: 3.4.1 declare the unpaid principal balance and earned interest on the Note immediately due; 3.4.2 request Trustee to foreclose this lien, in which case Beneficiary or Beneficiary's agent shall give notice of the foreclosure sale as provided by the Texas Property Code as then amended; and 3.4.3 purchase the property at any foreclosure sale by offering the highest bid and then have the bid credited on the Note. Article IV TRUSTEE'S DUTIES 4.2 Foreclosure Sale Proceeds. From the proceeds of such sale, Trustee shall pay, in this order: 4.2.1 first, expenses of foreclosure; 4.2.2 second, to Beneficiary, the full amount of principal, interest, attorney's fees, and other charges due and unpaid; 4.2.3 third, any amounts required by law to be paid before payment to Grantor; and 4.2.4 fourth, to Grantor, any balance. Article V GENERAL PROVISIONS 5.1 Surrender of Possession. If any ofthe property is sold under this Deed of Trust, Grantor shall immediately surrender possession to the purchaser. If Grantor fails to do so, Grantor shall become a tenant at sufferance of the purchaser, subject to an action for forcible detainer. .5.2 . .Recitals. Recitals in any Trustee's deed conveying the property will be presumed . to be true. 5.3 Election of Remedies. Proceeding under this Deed of Trust, filing suit for foreclosure, or pUrsuing any other remedy will not constitute an election of remedies. 5.4 SuperiorLien. Subject to the terms ofthisDeed of Trust, this lien shall remain superior to liens later created even if the time of payment of all or part of the Note is extended or part of the property is released. 5.5 Application of Payments. If any portion ofthe Note cannot be lawfully secured by this Deed of Trust, payments shall be applied first to discharge that portion. 5.6 Condemnation. Grantor assigns to Beneficiary all sums payable to or received by Grantor from condemnation of all or part of the property, from private sale in lieu of condemnation, and from damages caused by public works or.construction on or near the property. After deducting any expenses incurred, including attorney's fees, Beneficiary may release any remaining sums to Grantor or apply such sums to reduce the Note. Beneficiary shall not be liable for failure to collect or to exercise diligence in collecting any such sums. 5. 7 Usury. Interest on the debt secured by this Deed of Trust shall not exceed the maximum amount of nonusurious interest that may be contracted for, taken, reserved, charged, or received under law; any interest in excess of that maximum amount shall be credited on the principal of the debt or, if that has been paid, refund~d. On any acceleration or required or permitted prepayment, any such excess shall be canceled automatically as of the acceleration or prepayment or, if already paid, credited on the principal of the debt or, if the principal of the debt has been paid, refunded. This provision overrides other provisions in this and all other instruments concerning the debt. 5.8 Context. When the context requires, singular nouns and pronouns include the plural. All pronouns include the male, female and neuter genders. 5.9 Assignment. This Deed of Trust shall bind, inure to the benefit of, and be exercised by successors in interest of all parties. Grantor may expressly assign its interest in the Property subject to the liens and obligations under the Note and this Deed of Trust, and the assignee shall assume the same, at which time, Beneficiary releases Grantor from any of the obligations under this Deed of Trust and the Note, and Grantor shall have no further obligations under the Note and this Deed of Trust. 5.10 Partial Release. Any part of the Property may be released by Beneficiary without affecting the lien hereof against the remainder of the Property. 5.11 Headings. The headings contained in this Deed of Trust are included for convenience of reference only and are in no way intended to describe, interpret, define or limit the scope intent or substance of this Deed of Trust or any provision hereof. 5.12 Governing.Law. This Deed of Trust shall be governed by andconstru.ed and enforced in accordance with the laws of the State of Texas without giving effect to any conflicts-of-la w rule or procedure which would refer the matter to another jurisdiction. 5.13 Notice. All notices, requests, demands and other communications required or permitted to be given hereunder shall be deemed to have been duly given if in writing and delivered personally or mailed first class, postage prepaid, registered or certified United States mail, to such address as provided below. IN WITNESS WHEREOF, the undersigned executes this Agreement as of the date of the acknowledgment set forth below, but to be effective as of the Effective Date. GRANTOR: EAST A DEVELOPMENTS, L.P. By: GSDB Management, L.L. C., its Generalpa:r _~' i' By: _/~~ ~ /. /--/ L.---.// Garson Silvers Manager THE STATE OF TEXAS ~ ~ COUNTY OF HARRIS ~ This instrument was acknowledged before me on the lrrf1-a..ay of September, 2008, by East A Developments, L.P., by GSDB Management, L.L.C., its General Partner, by Garson Silvers, its Manager. /$.:f.v.~ ROBIN R. ELDRIDGE H*:::\ MY COMMISSION EXP;"es ~;JI July 16. 2010 ,(., EXAS ADDRESS OF GRANTOR: 1001 Usener Houston, Harris County, Texas 77007 ADDRESS OF BENEFICIARY: 604 W. Fairmont Parkway La Porte, Harris County Texas 77571 MAILING ADDRESS OF TRUSTEE: AFTER RECORDING, RETURN TO: Exhibit "F" NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AND INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER ORYOUR DRIVER'S LICENSE NUMBER. ~ptrial marruutl1 1!1ttb (Interest in Public Right-Of-Way) THE STATE OF TEXAS COUNTY OF HARRIS 9 9 9 Know All Men By These Presents: That EAST A DEVELOPMENTS, L.P., a Texas limited partnership, ("Grantors"~ whether one or more), for and in consideration of the sum ofTen Dollars ($10.00) and other good and valuable consideration to Grantors this day paid by LA PORTE ECONOMIC DEVELOPMENT CORPORATION, a Texas non-profit corporation ("Grantees", whether one or more), of Harris County, Texas, the receipt and sufficiency of which is hereby acknowledged, have GRANTED, BARGAINED, SOLD and CONVEYED and by these . presents do GRANT, BARGAIN, SELL and CONVEY unto Grantees all of the real and personal property situated in Harris County, Texas, to wit: All of Seller's right, title and interest in and to the 100' wide public right-of-way known as San Jacinto Street to the extent the same abuts Lots 6, 7, 8, 9, 10, 11, 12 and 13, in Block One Hundred Ninety-Eight (198) of TOWN OF LA PORTE, an addition in Harris County, Texas, according to the map or plat thereof recorded in Volume 8, Page 16 of the Map Records of Harris County, Texas (the "Subject Property"). This conveyance is executed by Grantors and accepted by Grantees subject to (i) . taxes and assessments for the year 2008 and later, and any taxes and assessments which may arise from the change in land ownership or usage; (ii) any matters which a surveyor physical inspection would disclose; (iii) the ordinances, zoning, restrictions, and similar regulations imposed by the City of La Porte or any other federal, state, or municipal authority of competent jurisdiction; and (iv) all matters of record in the office of the County Clerk of Harris County, Texas, to the extent the same are valid, subsisting, and affect the property in question. (collectively, the "Permitted Exceptionsl~. THE' IMPROVEMENTS, IF ANY, LOCATED UPON THE SUBJECT PROPERTY ARE CONVEYED AND ACCEPTED ''AS IS", 'WHERE IS", "WITH ALL FAULTS", IN THEIR PRESENT CONDITION, OF ANY KIND, WHETHER EXPRESS OR IMPLIED, OTHER THAN THE EXPRESS WARRANTIES OF TITLE MADE HEREIN. THE WARRANTIES OF HABITABILITY, SUITABILITY, TENABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTIES WHATSOEVER CONTAINED IN OR CREATED BY THE TEXAS BUSINESS AND COMMERCE CODE, TEXAS PROPERTY CODE, UNDER THE LAWS OF THE STATE OF TEXAS, OR OTHERWISE, ARE EXPRESSLY DISCLAIMED. GRANTEE ACCEPTS ALL LIABILITY FOR ALL COSTS, LIABILITY, AND CLAIMS RELATING TO, OR RESULTING FROM, THE CONDITION OF THE SUBJECT PROPERTY, INCLUDING ANY UNDERGROUND' STORAGE TANKS OR ENVIRONMENTAL HAZARDS THEREON. TO HAVE AND TO HOLD the Subject Property, together with all and singular . the rights and appurtenances thereto in anywise belonging unto Grantees, their heirs, administrators, successors and assigns, forever; and' nrai1tors do' hereby bind themselves, and their heirs, administrators, successors and assigns, to WARRANT AND FOREVERDEFEND, all and singular, the Subject Property unto Grantees, and their heirs, administrators~ successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantors, but not otherwise, and subject to the Permitted Exceptions and taxes for the current year and subsequent assessments for prior years due to change in land usage or ownership. Except for any interest in that 100' public right-of-way known as San Jacinto Street, nothing in this Special Warranty Deed shall be construed to convey any right, title or interest in Lots6, 7, 8, 9, 10, 11, 12 and 13, in Block One Hundred Ninety-Eight (198) of TOWN OF LA PORTE, an addition in Harris County, Texas, according to the map or plat thereof recorded in Volume 8, Page 16 of the Map Records of Harris County, Texas. EXECUTED this the~ of September, 2008. EAST A DEVELOPMENTS, L.P. By: GSDB Management, L.L.C., its General Partner ~~ Garson Silvers, Manager By: "Grantors" THE STATE OF TEXAS ~ ~ COUNTY OF HARRIS ~ Thisinstrument 'Was acknowledged before me on this {rJI" day of September, 2008, by Garson Silvers, as manager of GSDB Management, L.L. C. as general partner of EAST A DEVELOPMENTS, L.P. F10~3~N M. >: ~J\~"'JGE MY C{JMr.MSS!~}N S-;?iRES ,.iu;ji 1~, 20'iO Notary Public in and for The State of Texas GAGLE INVESTMENTS, as lienholder against land in Harris County, Texas, consisting of the South seven (7) feet of Lot 9, all of Lot 10, the West fifty-six and four tenths (56.4) feet of Lots 11, 12 and 13 of Block 198 of the TOWN OF LA PORTE, as recorded in the Map Records of Harris County, Texas Volume 8, Page 16, does hereby subordinate its, interest in and to the Subject Property to the grant, sale, and conveyaJice to Grantee under this Special Warranty Deed. GAGLEINVESTMENTS By: Printed Name: President THE STATE OF TEXAS ~ ~ COUNTY OF HARRIS ~ This instrument was acknowledged before me on this _ day of September, 2008, by , as President of Gagle Investments. Notary Public in and for The State of Texas ADDRESS OF GRANTEES: AFTER RECORDING, RETURN TO: 604 W. Fairmont Parkway .La Porte, Texas 77571 H:'\Ben '\Client Files'\East A Developments LP'\380 Agreement with the City of La Porte'\PSA04. wpd\091008142357 c NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. LEASE ARTICLE 1. DEFINITIONS Defined terms used in this Lease have the meanings assigned below. Other terms may be defined in connection with their use. Section 1.1 Landlord: East A Developments, L.P., a Texas limited partnership. Section 1.2 Tenant: La Porte Economic Development Corporation, a Texas non-profit corporation Section 1.3 Tenant's Address: 604 W. Fairmont Parkway, La Porte, Texas 77571 Section 1.4 Premises: Landlord's land in Harris County, Texas, consisting of the South seven (7) feet of Lot 9, all of Lot 10, the West fifty-six and four tenths (56.4) feet of Lots 11, 12 and 13 of Block 198 of the TOWN OF LA PORTE, as recorded in the Map Records of Harris County, Texas Volume 8, Page 16. Section 1.5 Landlord's Address: 1001 Usener, Houston, Texas 77009 Section 1.6 Rent. Rent consists of the following components: 1.6.1 Base Rent: The amount determined as follows: - 1.6.1.1 $5,200.00 per month during months 1 through 36 of the Term; and 1.6.2 Additional Rent, consisting of the following: 1.6.2.1 Taxes, Insurance Costs, and Maintenance Costs; 1.6.2.2 Other Periodic Charges (if applicable); and 1.6.2.3 Other charges designated in this Lease as Additional Rent. Base Rent du ring any option period will be determ ined in accordance with Section 1.14. Section 1.7 Permitted Use: any retail, educational, restaurant, museum, office, or municipal use. Section 1.8 Security Deposit: The sum of $5,200.00 which Tenant agrees to deposit with Landlord within thirty (30) days of the execution of this Lease. Section 1.9 THIS LEASE IS NOT BINDING UPON LANDLORD UNTIL LANDLORD HAS SIGNED THIS LEASE AND THE FULL AMOUNT OF THE SECURITY DEPOSIT HAS BEEN DEPOSITED WITH LANDLORD; BUTTHIS LEASE IS BINDING UPON TENANT IMMEDIATELY UPON TENANT'S SIGNATURE HERETO. Section 1.10 Term: 1.10.1 Commencement Date: The date upon which Landlord tenders the Premises to Tenant. The Term will commence on the Commencement Date and will continue for a period of 36 calendar months thereafter. The Term may be extended by the parties upon mutual written agreement. 1.10.2 If the Commencement Date is not the first day of a calendar month, the partial period between the Com mencement Date and the first day of the next succeeding calendar month shall be added to the Term so that the Term ends on the last day of a calendar month. Rent for such partial calendar month shall be prorated on a daily basis. 1.10.3 A Lease Year com mences on the first day of the firstfull calendar month within the Term and ends on the last day of the twelfth calendar month thereafter; except that if there is a partial month at the beginning of the Term, the first Lease Year will include such partial calendar month (and therefore will be longer than twelve [12] months). Each subsequent Lease Year begins the day following the expiration of the prior Lease Year. The last Lease Year may contain less than 12 calendar months if number of months in the Term is not an exact multiple of 12. Section 1.11 Projected Tender Date: December 1,2008. Section 1.12 Number Of Renewal Options: Three (3). Section 1.13 Renewal Term Duration: Twelve (12) months. Section 1.14 Renewal Rental Rate: The am ou nt determ ined as follows: .l:..1i:1 $5,460.00 per month during the first exercise of a Renewal Option (if applicable); 1.14.2 $5,720.00 per month during the second exercise of a Renewal Option (if applicable); 1.14.3 $5,980.00 per month during the third exercise of a Renewal Option (if applicable). Section 1.1.5 Date of this Lease or Date hereof means the date that the latest of the following has occurred: (I) Landlord and Tenant have each signed this Lease; or (ii) Tenant has paid the Security Deposit to Landlord. Section 1.16 Addenda: The following Addenda is attached to this Lease and incorporated by reference: Rules and Regulations Section 2.1 Landlord. Section 2.2 If Tenant performs all its covenants and agreements, Tenant will have peaceful and quiet possession of the Premises during the Term, subject to this Lease and any mortgages, leases and other matters to which this Lease is or becomes subordinate. ARTICLE 2. GRANTING CLAUSE AND QUIET POSSESSION Landlord hereby leases the Prem ises to Tenant, and Tenant hereby leases the Prem ises from Page -1- ARTICLE 3. DELIVERY AND ACCEPTANCE OF PREMISES; TERM OF LEASE; HOLDOVER Section 3.1 Tenant will accept possession of the Premises when Landlord tenders the Premises to Tenant, whether such tender is before, on, or after the Projected Tender Date. By occupying the Premises, Tenant will have accepted the Premises in their then "AS IS" "WHERE IS" "WITH ALL FAULTS" condition and will have acknowledged that the Premises comply fully with Landlord's covenants and obligations hereunder, except only as to such items ("Punch List") which Tenant reasonably specifies to Landlord in writing within ten (10) days after such tender as not being in compliance, and which Landlord reasonably agrees are not in compliance. Section 3.2 Landlord shall not be in default for failing to tender the Prem ises on or before the Projected Tender Date, whether such delay is caused by a tenantor occupantofthe Premises holding over, for a cause beyond Landlord's reasonable control, orfor a cause within Landlord's control. However, if Landlord does not tender the Premises to Tenant within ninety (90) days following the Projected Tender Date, either party may term inate this Lease in which event both parties shall be released. Section 3.3 Excepting only any warranties that may be expressly set forth herein, Tenant accepts the Prem ises without warranty of any kind, express or im plied, including, but not lim ited to those arising under the Texas Property Code and Texas Business and Commerce Code. LANDLORD DISCLAIMS ALL WARRANTIES REGARDING MERCHANTABILITY, PROFITABILITY, FITNESS FOR A PARTICULAR PURPOSE, HABITABILITY, SUITABILITY OR TENABILITY. Section 3.4 If Tenant remains in possession of the Premises after the Term, Tenant shall be in default hereunder, Tenant shall vacate the Premises immediately upon demand by Landlord, and Tenant shall be occupying the Premises as a holdover tenant at sufferance, from day-to-day, at a daily rental equal to 1/15th of the total of the following: (i) Base Rent for the last month of the Term; plus (iI) Additional Rent for the last month of the Term. Payment of such daily rental will not relieve Tenant from liability for any damages Landlord may suffer on account of such holding over. Damages which La ndlord may suffer include econom ic damages for loss of a tenant who cancels its lease because of late delivery of premises, increased costs for remodeling, etc. to attem pt to mitigate any delay in delivery, and sim ilar item s in addition to damages allowed under this Lease or by law. ARTICLE 4. PAYMENT OF BASE RENT AND ADDITIONAL RENT Section 4.1 Base Rent and Additional Rentshall accrue beginning on the Commencement Date and shall be payable to Landlord without demand. All Rent shall be payable at Landlord's Address. Landlord may change Landlord's Address by notice to Tenant from time to time. Section 4.2 Tenant agrees and covenants to pay Base Rent to Landlord in monthly installments in the amounts specified in Section 1.10.1. The first monthly installment of Base Rent and Additional Rent is due and payable on the first day of the calendar month immediately following the month in which the Commencement date occurs. This installment (as well as Additional Rent due and payable at the same time) may be prorated as provided in Section 1.14.2. Succeeding installments of Base Rent and Additional Rent are due and payable on or before the first day of each succeeding calendar month for the entire Term. Tenant covenants and agrees to pay all Rent to Landlord or on before its due date, without deduction or offset of any nature. Section 4.3 In the event any Rent is not received within five (5) days after its due date for any reason whatsoever, a late charge penalty of $30 per day shall become due. The total amount thus due including any penalty shall bear interest at the maximum non-usurious rate which could legally be charged in the event of a loan of such Rent to Tenant in the state where the Premises are located. Any such late charge penalty or interest shall be payable on demand as Additional Rent hereunder. ARTICLE 5. MAINTENANCE COSTS, TAXES AND INSURANCE COSTS Section 5.1 The term Maintenance Costs means all costs and expenses of every kind and nature paid or incurred by Landlord in operating, managing, cleaning, equipping, repairing, replacing and maintaining the Premises, including, without limitation, costs of repainting, cleaning, sweeping and other janitorial services; landscaping; maintenance, repair and replacement of roofs, gutters, utility systems and drainage systems withinand s~rving the Premises; rental charges for machinery and equipment; Premises identification signs; directional sIgns and other markers; costs of personnel to implement all of the foregoing, including wages, unem ploym ent taxes and social security taxes; persona I property taxes; fees for required licenses and permits; supplies; heating, ventilating and air-conditioning systems serving the Premises; and an allowance to Landlord for supervision of the Premises in an amount equal to fifteen percent (15%) of the total of all Maintenance Costs. Nothing in this Section shall create an obligation upon Landlord to provide any of the foregol~g services. To the .extent Tenant is obligated to, or does, perform any of the foregoing operating, managing, cleaning, eqUipping, repairing, replacing and maintaining of the Premises, the cost of the same shall be solely the borne by Tenant. Section 5.2 The term Taxes means all real estate and other ad valorem taxes, assessments, parking surcharges, water and sewer rents, and other governmental im positions, levies and charges of every kind and nature whatsoever, general and special, ordinary and extraordinary levied against the Prem ises for each real estate tax year during the Term, including also (i) any tax or excise (including any margin tax) on any Additional Rents, and/or (".) any other tax however deSCribed (except estate, inheritance, capital gains, income [except as prOVided herein] or excess profits taxes imposed upon Landlord) levied or assessed against Page -2- Landlord by any lawful taxing authority on account of Landlord's interest in this Lease, Rent or other charges reserved hereunder, as a substitute in whole or in part for, or in addition to Taxes described above. Section 5.3 Tenant shall pay before delinquency all taxes levied against Tenant's personal property and trade fixtures in the Premises. If any such taxes are levied against Landlord or Landlord's property and Landlord elects to pay the same, Tenant shall pay to Landlord upon demand as Additional Rent that part of such taxes for which Tenant is primarily liable hereunder. Section 5.4 The term Insurance Costs means all premiums for liability insurance, fire and extended coverage insurance, rental loss and all other insurance as may be carried from time to time by Landlord covering all or any portion of the Premises. In the event that any insurance carried by Landlord covers property in addition to the Premises, Insurance Costs shall include the premium which would have been paid by Landlord for a similar policy of insurance covering only the Premises. Section 5.5 Landlord shall not be liable to Tenant or to Tenant's employees, agents, or visitors, or to any other person whomsoever, for any injury to person or damage to property on or about the Premises caused by the negligence or misconduct of Tenant, its employees, subtenants, licensees or concessionaires, or of any other person entering the Prem ises under express or im plied invitation of Tenant, or arising out ofthe use of the Premises by Tenant and the conduct of its business therein or arising out of any breach or default by Tenant in the performance of its obligations hereunder; and Tenant hereby agrees to indemnity and hold Landlord harm less from and against any and all liability, loss, damage, expense or claim arising out of such damage or injury or resulting from any breach, violation or nonperformance of any covenants or conditions hereof by Tenant, its agents, employees or invitees. Section 5.6 Tenant shall procure and maintain throughout the Term a policy or policies of insurance, at its sole cost and expense, insuring both Landlord (by naming Landlord as an additional insured) and Tenant against all claims, demands or actions arising out of or in connection with the Premises, the condition of the Premises, Tenant's operations in and maintenance and use of the Prem ises, and Tenant's liability assumed under this Lease, the limits of such policy or policies to be in an amount not less than $500,000 per occurrence and $1,000,000 aggregate for injury to persons (including death), and for damage or destruction, including loss of use thereof (Tenant's Required Insurance). All such policies shall be procured by Tenant from responsible insurance companies licensed to do business in Texas satisfactory to Landlord. Certified copies of such policies or duly executed "Certificates of Insurance," together with receipt evidencing payment of premiums therefor, shall be delivered to Landlord prior to the Commencement Date of this Lease, or prior to the date Land lord delivers possession of the Prem ises to Tenant, wh ichever is the earlier to occur. Not less than thirty (20) days prior to the expiration date of any such policies, certified copies of the renewals thereof or the duly executed "Certificates of Insurance," bearing notations evidencing the payment of renewal premiums, shall be delivered to Landlord. Such pOlicies shall further provide that not less than thirty (30) days written notice shall be given to Landlord before such policy may be canceled or changed to reduce insurance provided thereby. If Tenant should fail to comply with the foregoing requirements relating to insurance, Landlord may obtain such insurance and Tenant shall pay to Landlord on demand, as Additional Rent hereunder, the premium cost thereof, plus an administrative fee of fifteen percent (15%). Section 5.7 All other insurance coverage shall be the responsibility ofT enant, including, without lim itation, fire and extended coverage, theft, liability, plate glass breakage, and all insurance covering Tenant's stock of goods, trade fixtures, and all other contents of the Premises. Any insurance against casualty loss which may be carried by either Landlord or Tenant shall be under the sole control of the party carrying such insurance. Tenant and its assignees hereby expressly waive any cause of action or right of recovery that it may hereafter have against Landlord for any loss or damage to the Premises or to the building of which the Premises are a part, orto the contents thereof belonging to Tenantcontained in said Premises caused by fire, explosion or other risk covered or which could be covered by a Texas Standard Form of Fire and Extended Coverage Policy, and no third party shall have any such right of recovery by way of subrogation or otherwise. Section 5.8 Tenant shall pay to Landlord monthly (as Additional Rent) an amount equal to Landlord's estimate of 1/12 of the annual Maintenance Costs, Taxes and Insurance Costs on the same day that Base Rent is due. Landlord's initial estimate of 1/12 of the annual Maintenance Costs, Taxes and Insurance Costs is set forth in Paragraph 1.10.3. Landlord may, at its option, increase the amount of Tenant's monthly payment towards the annual Maintenance Costs, Taxes and/or Insurance Costs from time to time, based upon Landlord's estimate of annual Maintenance Costs, Taxes and Insurance Costs. Section 5.9 Within one hundred twenty (120) days after the end of each calendar year, Landlord shall provide Tenant with a statement showing the actual amount of Maintenance Costs, Taxes and Insurance Costs for such calendar year, itemized in reasonable detail. If the aforesaid installment payments made by Tenantfor a given year are more than such annual Maintenance Costs, Taxes and Insurance Costs, Landlord shall credit the amount of the excess to Tenant's next installment(s) of Additional Rent, or at Landlord's option refund same to Tenant or apply any such excess against any other amount Tenant owes Landlord. If said installment payments made are less than the actual Maintenance Costs, Taxes and Insurance Costs for such year, Tenant shall pay Landlord the difference within thirty (30) days after receipt of said statement. In either case, neither party shall be entitled to payment or credit for any amounts owing for more than two (2) years, unless claims for such amounts are made prior to the end of such two (2) year period. ARTICLE o. USE AND OCCUPANCY OF PREMISES Page -3- Section 6.1 Tenant shall use the Premises only for the Permitted Use, and for no other use or purpose without the prior written consent of Landlord. Section 6.2 Tenant shall not, without Landlord's prior written consent, keep anything within the Prem ises or use the Prem ises for any purpose which increases the insurance prem ium cost or invalidates any insurance policy carried on the Premises. All property kept, stored or maintained within the Premises by Tenant shall be at Tenants sole risk. Tenant agrees, at its own cost and expense, to comply with all rules, regulations and requirements of the fire insurance underwriting organization and any similar body or governmental authority having jurisdiction. Section 6.3 Tenant shall not conduct within the Premises any fire, auction, bankruptcy, "going-out-of- business", "Iost-our-Iease", or similar sales. Tenant shall not permit any objectionable or unpleasant odors or sounds to emanate from the Premises; nor place or permit any radio, television, loudspeaker or amplifier on the roof or outside the Prem ises or where the same can be seen or heard from outside the building; nor place any antenna, awning or other projection on the exterior of the Premises; nor distribute or cause to be distributed any handbills or other advertising devices; nor do anything which would tend to injure the reputation of Landlord and/or the Premises. Section 6.4 Tenant shall take good care of the Prem ises and keep the same free from waste at all times. Tenant shall keep the Premises and sidewalks, service-ways and loading areas adjacent to the Premises neat, safe, clean and free from dirt or rubbish at all times, and shall store all trash and garbage within the Premises, arranging for the regular pick-up of such trash and garbage from Tenant's dumpster at Tenant's expense. Receiving and delivery of goods and merchandise and removal of garbage and trash shall be made only in the manner and areas prescribed by Landlord. Tenant shall not operate an incinerator or burn trash or garbage within the Prem ises. Section 6.5 Tenant shall take prudent measures to provide for the security of its employees, agents, customers, and the Premises, and shall keep some of its interior store lights lighted from dusk until dawn every day. Section 6.6 Tenant shall procure, at its sole expense, any permits required forthe transaction of business in the Premises and otherwise comply with all applicable laws, ordinances, and governmental regulations. ARTICLE 7. MAINTENANCE AND REPAIR OF PREMISES Section 7.1 Landlord shall keep the foundation, the exterior walls (excluding plate glass; windows, doors, door closure devices and other exterior openings; window and door frames, molding, locks and hardware; special store fronts; lighting, heating, air conditioning, grease traps, utility meters, plumbing and other electrical, mechanical and electromotive installations, equipment and fixtures; signs, placards, decorations or advertising media of any type, and interior treatments to the exterior walls), and roof of the Premises in good repair; provided, however, Landlord shall not be required to make any repairs occasioned by the act or negligence of Ten ant, its agents, employees, invitees, subtenants, licensees and concessionaires (including, but not limited to, roof leaks resulting from Tenant's installation or servicing of air conditioning equipment or any other roof penetration or placement). The provisions of this Section 7.1 are expressly subject to the provisions of ARTICLE 13 and ARTICLE 20 of this Lease. In the event the Prem ises should become in need of repairs required to made by Landlord hereunder, Tenant shall give immediate written notice thereof to La nd lord. Section 7.2 Tenant, at its sole cost and expense, sha II keep and maintain the Prem ises in good order and in a neat, clean, safe and habitable condition, free of insects, rodents, vermin and other pests, and shall make all needed repairs and replacements, except for repairs and replacem ents required to be made by Landlord under the provisions of Section 7.1, ARTICLE 13 and ARTICLE 20 of this Lease. Without limiting the preceding sentence, it is understood that Tenant's responsibilities include the repair and replacement of all cracked or broken glass and all lighting, heating, air conditioning, utility meters, plumbing, water heaters, sprinklers, and other electrical, mechanical and electromotive installations, equipment and fixtures in the Premises. If any repairs or replacements required to be made by Tenant hereunder are not made within ten (10) days after written notice is delivered to Tenant by Landlord, Landlord may at its option make such repairs or replacements without liability to Tenant for any loss or damage which may result by reason thereof, and Tenant shall pay to Landlord upon demand, as Additional Rent hereunder, the cost of such repairs or replacem ents plus an adm inistrative fee of fifteen percent (15%). Section 7.3 Additionally, Tenant shall pay to Landlord upon demand, and without contribution from Landlord, all costs and expenses for the maintenance, repair, replacement and/or construction of any utility lines, including, withou~ limitation, gas lines, sewer lines, water lines and drains, drainage systems, drainage piping, water service pipes, underground water pipes, storm sewer systems or storm sewer piping, sanitary sewer systems and plpmg and any plumbing equipment, fixtures or appliances servicing the Premises as a result of any obstruction of the flow, clogging, backing-up or other malfunction or disrepair of said systems due to any act or om ission of Tenant hereunder are not made within ten (10) days after written notice delivered to Tenant by Landlord. Section 7.4 Te~ant shall install and ma intain fire extinguishers and other fire protection devices, and shall comply With all reqUirements of any insurance policies and the insurance underwriters insuring the Building in which the Premises are located. Section 7.5 Tenant shall comply with all requirements of the Am ericans with Disabilities Act (Public Law 101-336 (July 26,1990)) and the Texas Architectural Barriers Act (Article 9102, Tex. Rev. Civ. St. (1991), Page -4- and/or any amendments or successor statutes thereof, applicable to the Premises. Tenant agrees to indemnify, defend, and hold Landlord harmless from any and all expense, liabilities, costs or damages suffered by Landlord as a result of additional obligations which may be imposed on the Premises under either of such acts by virtue of Tenant's operations. Tenant acknowledges that it will be wholly responsible for any accommodations or alterations which need to be made to the Prem ises to accom modate disabled em ployees and customers of Tenant. No provision in this Lease should be construed in any manner as permitting, consenting to, or authorizing Tenant to violate requirements under either such act, and any provisions of the Lease which could arguably be construed as authorizing a violation of either act shall be interpreted in a manner which permits compliance with such act and is hereby amended to permit such compliance. Section 7.6 TENANT EXPRESSLY UNDERSTANDS ANO AGREES THAT TENANT SHALL BEAR SOLE RESPONSIBILITY FOR THE SECURITY OF THE PREMISES AND DESIGNATED PARKING AREA, AND FOR THE SECURITY OF TENANT'S AGENTS, INVITEES, CUSTOMERS, VISITORS, AND ALL OTHER PERSONS WHOSOEVER WHO COME ON OR ABOUT THE PREMISES. LANDLORD WILL NOT BE OBLIGATED TO PROVIDE SECURITY PERSONNEL, SECURITY LIGHTING, OR ANY OTHER FORM OF SECURITY FOR THE PREMISES. If Landlord, in its sole discretion, elects to provide security services, such action shall not constitute a waiver of this Section and the cost of such security services shall be included within Maintenance Costs. ARTICLE 8. UTILITIES Section 8.1 Tenant shall promptly pay all charges for electricity, water, gas, telephone service, sewage service and other utilities furnished to the Premises, including any charges for utilities on Landlord's meters, which shall be apportioned in a manner deemed fair and reasonable by Landlord (Other Periodic Charges). In the event Tenantfails to reimburse Landlord for any Other Periodic Charges within thirty (30) days of billing, Landlord may, in addition to any other remedies herein, interrupt utility service to Tenant. Landlord shall not be liable for any interru ption whatsoever in utility services. ARTICLE 9. ALTERATIONS Section 9.1 Tenant shall not make any alterations, additions or im provements to the Prem ises without the prior written consent of Landlord, except for the installation of unattached movable trade fixtures which may be installed without drilling, cutting or otherwise defacing the Premises. All alterations, additions, improvements and fixtures (other than Tenant's unattached movable trade fixtures) which may be made or installed by either party upon the Premises shall remain upon and be surrendered with the Premises and become the property of Landlord at the termination of this Lease, unless Landlord requests their removal in which event Tenant shall remove the same and restore the Premises to their original condition at Tenant's expense. Section 9.2 All construction and removal work by Tenant within the Premises shall be performed in a good and workmanlike manner, in compliance with all governmental requirements, laws, ordinances, orders or regulations affecting the Premises or the removal of any substances therefrom, and in full compliance with Article 28 hereof. Tenant agrees to indem nify and hold Landlord harm less from and against any and all claim s, demands, losses, liabilities, damages, costs, fines or penalties resulting from or arising in connection with the performance of such work. ARTICLE 10. TENANTS FIXTURES Section 10.1 Tenant may place or install in the Premises Tenant's business fixtures and related furnishings and equipment that are not in the nature of a leasehold improvement, including but not limited to counters, shelving, floor fixtures, display cases, office furniture and safes, and shall remove same upon the expiration or termination of this Lease; provided, however, that Tenant, at Tenant's own cost and expense, shall repair any and all damage to the Premises resulting from or caused by such installation or removal. ARTICLE 11. TENANTS STORE FRONT AND SiGNS Section 11.1 Except as hereinafter expressly provided, Tenant shall not, without Landlord's prior written consent (a) make any changes to the store front or (b) install any decorations or advertising media of any type (i~cl~?ing ~nything within the Premises that can be viewed from the exterior of the Premises), excepting only dignified displays of customary type for its display windows, which have been approved by Landlord. Section 1,1.2. ~II sign~, I~ttering, placards, decorations and advertising media shall conform in all respects to sign criteria (Sign Cntena) established by Landlord from time to time in the exercise of its sole discretion, and shall be subject to the prior written approval of Landlord as to construction, method of attachment size shape, he!ght, !ighting, color and general appearance. Tenant shall not place or allow to be used any po'rtabl~ and/or trailer signs anywhere within the Premises or adjacent streets or alleys. Section 11.3 All signs shall be kept in first-class condition and in proper operating order at all times, and shall be removed by Tenant upon the expiration or termination of this Lease. Section 11.4 Tenant agrees to install, prior to the Commencement Date, a sign conforming to the Sign Cnt~na on the front of the Premises. Landlord may amend the Sign Criteria, and Tenantwill modify or replace ItS signs as necessary to comply with any amended Sign Criteria. ARTICLE 12. LANDLORDS RIGHT OF ACCESS: USE OF ROOF Page -5- Section 12.1 Landlord shall have the right to enter upon the Premises at any time for the purpose of inspecting the same, or of making repairs to the Prem ises, or of making repairs, alterations or additions to the adjacent premises, or of showing the Premises to prospective purchasers, lessees or lenders. Section 12.2 Tenant will permit Landlord to place and maintain "For Rent" or "For Lease" signs in and about the Premises during the last ninety (90) days of the Term. Section 12.3 Use of the roof and air space above the Prem ises is reserved exclusively to Landlord. Section 12.4 Neither Tenant nor any employee or invitee of any Tenant shall go upon the roof of the Prem ises except for the sole purpose of servicing its air conditioning units or roof top equipm ent; provided that this paragraph does not authorize Tenant to install any roof top equipment without the prior written consent of Landlord. In the event the installation or servicing of any roof top equipment (including air conditioning) requires a roof penetration, Tenant will pay the cost of a post-installation or post-servicing inspection by Landlord's roofing contractor and will pay the cost of any repairs which Landlord's roofing contractor determines are required by reason of such installation or servicing. ARTICLE 13. DAMAGES BY CASUALTY Section 13.1 Tenant shall give im mediate written notice to Landlord of any damage caused to the Prem ises by fire or other casualty. Section 13.2 In the event the Premises shall be damaged or destroyed by fire or other casualty insurable under standard fire and extended coverage insurance and Landlord does not elect to terminate this Lease as hereinafter provided, Landlord shall proceed with reasonable diligence and at its sole cost and expense to rebuild and repair the Premises. In the event (a) the Premises are destroyed or substantially damaged by a casualty not covered by Landlord's insurance, or (b) the holder of a mortgage, deed of trust or other lien on the Premises at the time of the casualty elects, pursuant to such mortgage, deed of trust or other lien, to require the use of all or part of Landlord's insurance proceeds in satisfaction of all or part of the indebtedness secured by the mortgage, deed of trust or other lien, then Landlord may elect either to terminate this Lease or to proceed to rebuild and repair the Prem ises. Landlord shall give written notice to Tenant of such election within sixty (60) days after the occurrence of such casualty and, if it elects to rebuild and repair, shall proceed to do so with reasonable diligence. Section 13.3 Landlord's obligation to rebuild and repair under this Article shall in any event be limited to restoring the Premises to substantially the condition in which the same existed prior to such casualty, exclusive of any alterations, additions, improvements, fixtures and equipment installed by Tenant. Tenant agrees, promptly after completion of such work by Landlord, to proceed with reasonable diligence and at Tenant's sole cost and expense to restore, repair and replace all alterations, additions, im provements, fixtures, signs and equipment installed by Tenant and to reopen for business in the Premises. Section 13.4 Tenant agrees that during any period of reconstruction or repair of the Premises it will continue the operations of its business within the Prem ises to the extent practicable. During the period from the occurrence of the casualty until Landlord's repairs are completed, the Base Rent shall be reduced to such extent as may be fair and reasonable under the circumstances; however, there shall be no abatement of the Additional Rent provided for herein. ARTICLE 14. NON-LIABILITY FOR CERTAIN DAMAGES Section 14.1 Landlord and Landlord's agents and employees shall not be liable to Tenant for any injury to person or damage to property caused by the Premises becoming out of repair or by defect or failure of any structural element of the Premises or of any equipment, pipes or wiring, or broken glass, or by the backing up of drains, or by gas, water, steam, electricity or oil leaking, escaping or flowing into the Premises (except where due to Landlord's willful failure to make repairs required to be made hereunder, after the expiration of a reasonable time after written notice to Landlord of the need for such repairs, and then only to the extent Landlord is insured for such loss), nor shall Landlord be liable to Tenant for any loss or damage that may be occasioned by or through the acts or omissions of any other persons whomsoever, excepting only duly authorized employees and agents of Landlord. Section 14.2 Landlord shall not be liable to Tenant for losses due to theft, vandalism or burglary, or for damages or injuries done by unauthorized persons to the Premises or to any person or property located in, upon, or adjacent to the Premises. ARTICLE 15. ASSIGNMENT AND SUBLETTING Section 15.1 Tenant may sublet the Prem ises or any part thereof with written notice to Landlord, provided that such sublease is made expressly subject to the terms of this Lease. Tenant shall not otherwise assign or In any manner transfer this Lease or any estate or interest therein, or sublet the Premises or any part thereof, collaterally or otherwise, or grant any license, concession or other right of occupancy of any portion of the Premises without the prior written consent of Landlord. Consent by Landlord to one or more assignments shall not operate as a waiver of Landlord's rights as to any subsequent assignments. Section 15.2 If Tenant is a corporation, partnership or other business entity, and if at any time during the Term or any renewal or extension thereof the owners of a majority of the ownership interests in Tenant at the time of the execution of this Lease cease to own a majority of such ownership interests (except as the result of transfe~ by devise or descent), howsoever same may be brought about (including, by way of example but not 11m Itatlon, a merger or consolidation), the cessation of ownership of a majority of such ownership interests Page -6- shall be deem ed an assignm ent of this Lease by Tenant and therefore subject in all respects to the provisions of Section 15.1 above. The previous sentence shall not apply, however if at the time of the execution of this Lease Tenant is a corporation or publicly traded partnership and the outstanding voting shares of capital stock of Tenant (or ownership interests in such partnership) are listed on a recognized security exchange or over- the-counter market. Section 15.3 Notwithstanding any assignment or subletting, Tenant shall at all times remain fully responsible and liable for the payment of all Rent herein specified and for compliance with all of its other obligations under this Lease (even if future assignm ents and sublettings occur subsequent to the assignment or sublettings). Moreover, in the event that the rental due and payable by a sub-lessee or assignee (or a combination of the rental payable under such sublease plus any bonus or other consideration therefor or incident thereto) exceeds the Rent payable under this Lease, then Tenant shall be bound and obligated to pay Landlord all such excess rental and other excess consideration within ten (10) days following receipt thereof by Tenant. Section 15.4 Tenant shall not mortgage, pledge or otherwise encumber its interest in this Lease or in the Prem ises. Section 15.5 Should TenantrequestofLandlord the rightto assign, Landlord may charge an amount equal to one (1) month's Base Rent and Additional Rent as an administration fee, if such request is granted. Additionally, regardless of whether Landlord consents to a proposed assignment, Tenant shall reimburse Landlord for any direct costs incurred by Landlord in connection with a request by Tenant to assign, including legal fees and expenses. ARTICLE 16. ASSIGNMENT OF LANDLORD'S INTEREST Section 16.1 Landlord shall have the right to assign, or transfer in whole or in part, every feature of Landlord's right and obligation hereunder and in the Premises, subject to this Lease. Such assignments or transfers may be made to a corporation, state or national banking association, trust, trust company, limited partnership, partnership, individual or group of individuals, and however made, shall be in all things respected and recognized by Tenant. Tenant shall not, however, be charged with notice, actual or constructive, of or with inquiry and respect to, any such assignment or transfer until Tenant is furnished with a written notice of such transfer or assignment by Landlord. Section 16.2 In the event of the transfer and assignm ent by Landlord of its interest in this Lease and in the building containing the Prem ises, Landlord shall thereby be released from any further obligations hereunder, and Tenant agrees to look solely to such successor in interest of the Landlord for performance of such obligations. Any rem aining security given by Tenant to secure performance of Tenant's obligations hereu nder shall be assigned and transferred by Landlord to such successor in interest, and Landlord shall thereby be discharged of any further obligation relating thereto. ARTICLE 17. SUBORDINATION; ATTORNMENT Section 17.1 Tenant accepts this Lease subject and subordinate to any mortgage, deed of trust or other lien covering the Premises as a whole, and to any renewals and extensions thereof (collectively, Mortgage). Tenant agrees that any such mortgagee shall have the right at any time to subordinate such Mortgage to this Lease; provided, however, notwithstanding that this Lease may be (or be made to be) superior to the Mortgage, the provisions of the Mortgage relative to the rights of the mortgagee with respect to proceeds arising from an eminent domain taking (including a voluntary conveyance by Landlord) and/or arising from insurance payable by reason of damage or destruction of the Premises shall be prior and superior to any contrary provisions contained in this instrument. Landlord is hereby irrevocably vested with full power and authority to su bordinate this Lease to any Mortgage, and Tenant agrees upon dem and to execute such further instruments subordinating this Lease as Landlord may request; provided, however, that upon Tenant's written request and notice to Landlord, Landlord shall use good faith efforts to obtain from any such mortgagee a written agreement that the rights of Tenant shall remain in full force and effect during the term of this Lease so long as Tenant shall continue to recognize and perform the covenants and conditions of this Lease. Upon request of any mortgagee of the Prem ises, Tenant shall agree to recognize and attorn to the purchaser at any foreclosure sale. Section 17.2 At any time when the holder of an outstanding Mortgage has given Tenant written notice of its interest in this Lease, Tenant may not exercise any remedies for default by Landlord hereunder unless and until the holder of the indebtedness secured by such Mortgage shall have received written notice of such default and a reasonable time for curing such default thereafter shall have elapsed. Section 18.1 Lease. ARTICLE 18. DEFAULT BY TENANT AND LANDLORD REMEDIES Each of the following events shall be deemed to be an Event of Default by Tenant under this ~ Tenant shall fail to pay any installment of Base Rent, Additional Rent, or any other obligation hereunder involving the payment of money and such failure shall continue for a period of ten (10) days after the date due. 18.1.2 Tenant shall fail to comply with any term, provision or covenant of this Lease, other than as described in subsection 18.1.1 above, and shall not cure such failure within thirty (30) days after written notice thereof to Tenant. Page -7- 18.1.3 Tenant shall become insolvent, or shall make a transfer in fraud of creditors, or shall make an assignment for the benefit of creditors. 18.1.4 Tenant shall file a petition under any section or chapter of the Federal Bankruptcy Code, as am ended, or under any sim ilar law or statute of the United States or any State thereof, or Tenant shall be adjudged bankrupt or insolvent in proceedings filed against Tenant. 18.1.5 A receiver or trustee shall be appointed for the Premises or for all or substantially all of the assets of Tenant. 18.1.6 Tenant shall abandon or vacate any substantial portion of the Prem ises or shall perm it the Premises to remain unoccupied and unattended. 18.1.7 Tenant shall do or perm it to be done anything that creates a lien upon the Prem ises. 18.1.8 Tenant (if Tenant is a corporation, partnership, limited liability company, or other business entity) shall fail to maintain its existence or shall fail to remain in good standing with the Texas Com ptroller of Public Accounts (if applicable) or any other governm ental entity with wh ich it is required by law to remain in good standing. 18.1.9 Tenant and/or any affiliate of Tenant hereunder shall default under any other agreement between such party and Landlord and/or any affiliate of Landlord; provided, however, if such other agreement gives the defaulting party an opportunity to cure such a default within a particular time, no Event of Default will be deemed to have occurred until such time has expired without such default having been cured. Section 18.2 Upon the occurrence of any such Events of Default, in addition to all other legal or equitable remedies now or hereafter available, Landlord shall have the option to pursue any and/or all of the following described rem edies without further dem and or notice whatsoever: 18.2.1 Term in ate this Lease, in which event Tenant shall im m ed iately surrender the Prem ises to Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any other remedy which he may have for possession or arrearage in rent, enter upon and take possession of the Premises and expel or remove Tenant and any other person who may be occupying said premises or any part thereof without being liable for prosecution or any claim for damages therefor; and Tenant agrees to pay to Landlord on demand the amount of all loss and damage which Landlord may suffer by reason of such term ination, whether through inability to relet the prem ises on satisfactory term s or otherwise. 18.2.2 Enter upon and take possession of the Premises, without terminating this Lease, and expel or remove Tenant and any other person who may be occupying said premises or any part thereof, without being liable for prosecution or any claim for damages therefor, and, if Landlord so elects, relet the premises on such terms and for such purposes as Landlord maydeem advisable and receive the rent therefor, and Tenant agrees to pay to Landlord on demand any deficiency that may arise by reason of such reletting, and in no event shall Tenant be entitled to any excess of any rent obtained by reletting over the sums for which Tenant is obligated hereunder. Actions may be brought from time to time to collect Rent prior to the expiration of the Term. 18.2.3 Enter upon the Premises, without being liable for prosecution or any claim for damages therefor, without being obligated to do so and without thereby waiving such default, and do whatever Tenant is obligated to do under the terms of this Lease; and Tenant agrees to reimburse Landlord on demand for all costs and expenses (including reasonable attorney's fees) which Landlord may incur in thus effecting compliance with Tenant's obligations under this Lease, and Tenant further agrees that Landlord shall not be liable for any damages resulting to Tenant from such action. In the event Landlord elects to re-enter or repossess the Premises after Tenant's default, Tenant hereby waives notice of such re-entry or repossession and of Landlord's intent to re-enter or retake possession and grants to Landlord full and free license to alter or change locks or security devices on the Premises. Pursuit of any of the foregoing remedies shall not preclude pursuit of any other remedies herein provided or provided by law, nor shall pursuit of any other such remedy constitute a forfeiture or waiver of any Rent due to Landlord hereunder or of any damages accruing to Landlord by reason of the violation of any of the terms, provisions and covenants herein contained. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an Event of Default shall not be deemed or construed to constitute a waiver of such default. The loss or damage which Landlord may suffer by reason of termination of this Lease or the deficiency arising by reason of any reletting by Landlord as above provided, shall include the expenses of repossession, brokerage fees and the cost of any repairs, alterations, additions, or remodeling undertaken by Landlord following repossession. 18.2.4 Accelerate the Rents for the remainder of the Term and declare any and all Rents for the remainder of the Term immediately due and payable. Tenant hereby waives any right to demand and/or notice, including, but not limited to, notice of default, notice of intent to accelerate, and/or notice of acceleration. 18.2.5 Terminate any and all remaining option periods on or under this Lease. 18.2.6 Exercise any and all other rights and remedies granted to Landlord under this Lease. 18.2.7 The service of any notice of term ination or dem and for possession, institution of any action for forcible detainer or the entry of a judgment for possession in such action, or any other act or acts shall not constitute an election of remedies on the part of Landlord nor result in the termination of Tenants obligations to pay all Rent hereunder during the balance of the Term or any extension Page -8- thereof. Landlord may collect and receive any Rent due from Tenant, and the acceptance thereof shall not constitute a waiver of or affect any notice or demand given, suit instituted or judgment obtained by Landlord, or be held to waive, affect, change, modify or alter the rights or remedies which Landlord has in equity or at law by virtue of this Lease. Section 18.3 In the event Landlord shall have taken possession of the Premises pursuant to the authority herein granted, then Landlord shall have the right to keep in place and use all of Tenant's fixtures, furniture, equipment, signs, and other personal property at all times prior to any foreclosure thereon by Landlord or repossession thereof by any third party having a prior lien thereon or claim thereto, or Landlord may remove and store such items in a public warehouse or elsewhere at Tenant's expense. Section 18.4 Landlord may restrain or enjoin any breach or threatened breach of any covenant, duty or obligation of Tenant herein contained without the necessity of proving the inadequacy of any legal remedy or irreparable harm. The remedies ofLandlord hereunder shall be deemed cum ulative and not exclusive of each other. Section 18.5 If on account of any breach or default by Tenant in its obligations hereunder, Landlord shall employ an attorney to present, enforce or defend any of Landlord's rights or remedies hereunder, Tenant agrees to pay any reasonable attorney's fees incurred by Landlord in such connection. ARTICLE 19. LANDLORD'S CONTRACTUAL SECURITY INTEREST Section 19.1 In addition to the statutory Landlord's lien, Landlord shall have at all times a valid security interest to secure payment of all Rent and other sums of money becoming due hereunder from Tenant, and to secure payment of any damages or loss that Landlord may suffer by reason of the breach by Tenant of any covenant, agreement or condition contained herein, upon all goods, wares, equipment, fixtures, furniture, improvements and other personal property of Tenant presently, or which may hereafter be situated on the Premises, and all proceeds therefrom, and such property of Ten ant may not be removed without the consent of Landlord until all arrearages in Rent as well as any and all other sums of money then due to Landlord or to become due to Landlord hereunder shall first have been paid and discharged and all the covenants, agreements and conditions hereof have been fully complied with and performed by Tenant. Section 19.2 Upon the occurrence of an Event of Default by Tenant, Landlord may, in addition to any other remedies provided herein, enter upon the Premises and take possession of any and all goods, wares, eq uipm ent, fixtures, furniture, im provem ents and other personal property of Tenant situated on the Prem ises, without liability for trespass or conversion, and sell the same at public or private sale, with or without having such property at the sale, after giving Tenant reasonable notice of the time and place of any public sale or of the time after which any private sale is to be made. Unless otherwise provided by law, and without intending to exclude any other manner of giving Tenant reasonable notice, the requirement of reasonable notice shall be met if such notice is given in the manner prescribed in this Lease at least seven (7) days before the time of sale. Any sale made pursuant to the provision of this paragraph shall be deemed to have been a public sale conducted in a commercially reasonable manner if held in the Premises orwhere the property is located after the time, place and method of sale and a general description of the types of property to be sold have been advertised in a daily newspaper published in the county in which the property is located, for five (5) consecutive days before the date of the sale. Landlord or its assigns may purchase any or all of same at said public or private sale, unless otherwise prohibited by law. The proceeds from any such private or public sale, less any and all expenses connected with the taking of possession, holding and selling of the property (including reasonable attorneys fees and legal expenses), shall be applied as a credit against the indebtedness secured by the security interest granted Landlord in this Article. Any surplus shall be paid to Tenant or as otherwise required by law; Tenant shall promptly pay any deficiencies. Section 19.3 This Lease shall constitute a Security Agreement underthe Uniform Com mercial Code. Upon request by Landlord, from time to time Tenant agrees to execute and deliver to Landlord a Uniform Commercial Code Financing Statement in form sufficient to perfect the security interest of Landlord in the aforementioned property and proceeds thereof, or Landlord may file same on behalf of Tenant. ARTICLE 20. EMINENT DOMAIN Section 20.1 If more than thirty percent (30%) of the floor area of the Premises should be taken for any public or quasi-public use under any governmental law, ordinance or regulation or by right of eminent domain or by private purchase in lieu thereof, this Lease shall terminate and all Rent shall be abated during the unexpired portion of this Lease, effective on the date physical possession is taken by the condemning authority. Section 20.2 If less than thirty percent (30%) of the floor area of the Premises should be taken as afor~said, thi,s Lease shall not terminate; however, the Base Rent payable hereunder during the unexpired portion of thiS Lease shall be reduced in proportion to the area taken, effective on the date physical possession IS taken by the condemning authority. Following such partial taking, Landlord shall make all necessary repairs or alterations to make the remaining portions of the Premises an architectural whole. Section 20.3 All com pensation awarded for any taking (or the proceeds of private sales in lieu thereof) of the Premises shall be the property of Landlord, and Tenant hereby assigns its interest in any such award to Landlord; provided, however, Landlord shall have no interest in any award made to Tenant for Tenant's moving and relocating expenses or for the loss of Tenant's trade fixtures and other tangible personal property Page -9- if a separate award for such items is made to Tenant. Under no circumstances, however, shall Tenant be entitled to compensation for the loss of its leasehold estate, even if such a sum is separately awarded. ARTICLE 21. LANDLORD'S CONSTRUCTION Section 21.1 The Leased Prem ises will be delivered by Landlord to Tenantwith the following im provements and none other: 21.1.1 Outside walls constructed; 21.1.2 Roof installed with ceiling provided; 21.1.3 two (2) working restrooms installed, each with one toilet and one sink; 21.1.4 Heating, ventilation, and cooling system installed; 21.1.5 Concrete slab installed; 21.1.6 Water, sanitary sewer and electrical connections available to an outside wall of the Leased Prem ises (T enant to be responsible for the cost of connecting to); and 21.1.7 Windows and standard door installed. In the event that Tenant's construction calls for windows and/or doors which are in excess of the cost of standard items, such windows and/or doors shall be at Tenant's expense. Section 21 .2 Land lord sha II not be req u ired to constru ct any other leasehold im provem ents as a pa rt of th is Lease. ARTICLE 22. NOTICES Section 22.1 Whenever any notice is required or permitted hereunder such notice shall be in writing. Any notice or document required or permitted to be delivered hereunder shall be deemed to be delivered when deposited in the United States Mail, postage prepaid, Certified Mail, Return Receipt Requested, addressed to Landlord at Landlord's Address or to Tenant at Tenant's Address (or at Landlord's option, to Tenant at the Prem ises). Landlord shall have the right to change Landlord's Address by notice to Tenant, and Tenant shall have the right to change Tenant's Address by notice to Tenant, but any such changed address must be within the continental United States. Notice given in any other manner shall be deemed received when actually received by the party to be notified. Such receipt may be evidenced, for example, by affidavit of the person making delivery or by confirmation by Federal Express or other package delivery service of delivery. ARTICLE 23. SURRENDER Section 23.1 At the expiration or termination of this Lease, Tenant shall surrender the Premises in good condition, including the removals and repairs required to be made by Tenant in Section 9.1, Section 9.2, Section 10.1 a nd Section 11.3 of this Lease, excepting only reasonable wear and tear and repairs req uired to be made by Landlord under this Lease. Section 23.2 Should Tenant fail to remove any of its fixtures, equipment, signs or personality at the expiration or termination of this Lease, Landlord may consider sam e to be abandoned and remove or dispose of same without liability to Tenant, at Tenant's expense. ARTiCLE 24. COMPLIANCE WITH ENVIRONMENTAL REQUIREMENTS Section 24.1 Tenant shall com ply with all applicable federal, state, and local laws, ordinances, orders, rules and regulations concerning the protection of the environment (Environmental Laws) and affecting the Prem ises or the operation of Tenant's business therein. Notwithstanding anything in this Lease to the contrary, Tenant shall not use, store, handle, manufacture, process or dispose of in, on or about the Premises any substance, material, chemical, gas, waste or other matter which is harmful to the environment (Hazardous Substances). Section 24.2 Tenant will not do or permit anything to be done in, on or about the Premises that would violate any Environmental Laws. Any Hazardous Substances (including any construction or remodeling wastes) shall be removed from the Premises by Tenant and shall be properly disposed of in compliance with all Environmental Laws at Tenant's sole cost and expense. Section 24.3 Tenant hereby agrees to indemnity and hold Landlord harmless of, from and against any and all claims, actions, liens, demands, costs, expenses, penalties, fines and judgments (including court costs and attorney's fees) resulting from or arising by reason of the violation of this Article or any Environmental Laws by Tenant, its agents, employees, contractors, subtenants, licensees or concessionaires. Section 24.4 Tenant's obligations underthis Article shall survive the expiration or term ination of this Lease. ARTICLE 25. RENEWAL OPTIONS Section 25.1 Subject to the terms of this Lease, Tenant shall have the option (each such option being a Renewal Option) to extend the Term of this Lease (if and as applicable). The number of times a Renewal Option may be exercised is equal to Number Of Renewal Options. Upon each such exercise of a Renewal Option, the Term shall of this Lease shall be extended for the Renewal Term Duration. If the Number of Renewal Options is zero or left blank, no Renewal Option shall exist. Section 25.2 In order to exercise the first Renewal Option (if and as applicable) to extend the Term of this Lease for the first Renewal Term, Tenant must: 25.2.1 Give notice to Landlord of its exercise of this option no earlier than twelve (12) months before and no later than three (3) months before the end of the Term; Page -10- 25.2.2 Not be in default under this Lease at the time of giving such notice; 25.2.3 Not have assigned this Lease at any time; and 25.2.4 Not have paid more than four (4) installments of Base Rent and/or Additional Rent later than their respective due dates. Section 25.3 In order to exercise the each additional Renewal Option to extend the Term of this Lease for such Renewal Term (if and as applicable), Tenant must comply with Section 25.2.1 through Section 25.2.4 above as of the date of such exercise and additionally must have properly and tlm ely exercised the previous Renewal Option(s) in accordance with this Lease (as applicable). Section 25.4 In the event Tenant exercises any Renewal Option, the monthly Base Rent for the Premises during the relevant Renewal Term shall be the relevant Renewal Rental Rate. Section 25.5 Each Renewal Term shall commence on the first day following the expiration of the Term (as previously extended) and shall term inate on the last day of the releva nt num ber of calendar month thereafter. Except as changed in the manner referred to in 25.4 above, this Lease shall be so renewed and extended on and subject to all of the same terms, provisions and conditions as are set forth in this Lease. For each Renewal Option that is exercised and not retracted, the Term shall be amended to include the that Renewal Term Section 25.6 Time is of the essence with respect to exercise of each of Tenant's Renewal Options, and if any of such options is not exercised within the time and in the manner herein stated, then such options shall expire and be of no further force or effect. If notice of exercise of any or all of Tenant's Renewal Options is given in accordance with the provisions hereof and not retracted under 25.4.2, such notice shall be effective to renew and extend this Lease for the applicable Renewal Term, without the necessity of execution of any additional agreements or instruments by either Landlord or Tenant; provided, however, that either Landlord or Tenant shall, at the request of the other, execute a document which confirms the exercise of the relevant Renewal Option, the commencement and ending dates thereof, the rental rates in effect, and such other factual information as either party reasonably requests. ARTICLE 26. TENANT CONSTRUCTION Section 26.1 Tenant may construct improvements at the Premises only upon satisfying the following "conditions precedent": (i) that Landlord and Tenant shall have mutually agreed in writing upon plans and specifications and one or more general contractors (herein sometimes referred to as "contractor") to be utilized by Tenant; (iI) that Tenant has tendered to Landlord: a true copy of a "Building Permit" (meaning all required governmental, regulatory authority and other permits, consents and letters of utility availability) for the work of Tenant and its contractors, and certificates of all insurance required to be obtained by Tenant pursuant to this Lease; provided, however, in the event that this Lease is in full force and effect but Tenant has not provided Landlord with a Building Permit within thirty (30) days after the date condition (I) is satisfied, Landlord may, in addition to other remedies which may then be available to Landlord, cancel and terminate this Lease by notice to Tenant given at any time thereafter. Upon any such cancellation and termination by Landlord, Landlord and Tenant shall each respectively be released from all further liability under this Lease, irrespective of what costs or expenses either of such pa rties shall have incurred prior to any such cancellation and termination. Section 26.2 If Landlord and Tenant have not agreed in writing upon said plans and specifications or one or more general contractors to be utilized by Tenant on or before the date hereof, then within thirty (30) days after Landlord informs Tenant that the Premises are expected to be ready for commencement of Tenant's construction within ninety (90) days thereafter, Tenant shall cause com plete plans and specifications ("working drawings") to be prepared and three (3) counterparts to be submitted to Landlord for examination along with a list of one (1) or more contractors acceptable to Tenant. If by the expiration of the aforesaid thirty (30) day period, Landlord and Tenant shall not have agreed in writing upon said completed working drawings and one or more contractors to be utilized by Tenant, then Landlord shall have the right to terminate this Lease at any time thereafter, upon which term ination neither party shall have any claim against the other under this Lease irrespective of what costs or expenses, if any, either party shall have incurred in connection with this Lease prior to such cancellation. If such final working drawings are mutually approved by Landlord and Tenant in writing, such working drawings shall be initialed or signed by Landlord and Tenant and dated and designated "Tenant's Final Working Drawings", but need not be attached to this Lease. Section 26.3 Upon tender of possession of the Premises by Landlord to Tenant, Tenant shall enter the Premises and Tenant will perform such construction work and provide and install such materials as are provided in Tenant's Final Working Drawings and this Lease Agreement to be constructed or performed and installed by Tenant. Tenant will also provide and install all other interior work, trade equipment, furniture, fixtures, and effects of every description necessary or appropriate for Tenant's business (other than those specifically stated in the Article 21 to be provided by Landlord) and all such items to be provided and installed by Tenant shall be new and modern and of first-class quality. Landlord may make changes in its construction work (other than substantial changes) without Tenant's approval; Tenant will not unreasonably withhold approval of substantial changes proposed by Landlord. In the event Tenant fails to satisfy the conditions precedent and also commence construction on or before the expiration of thirty (30) days from the date of tender of possession of the Prem ises to Tenant, then such failure shall constitute an Event of Default under this Lease and, without further notice, Landlord shall have the right to either terminate this Lease at any time Page -11- thereafter or exercise such other remedies as may be available to Landlord pursuant to the terms of this Lease. Section 26.4 If at any time during the course of Tenant's work at the Prem ises the storefront of the Premises is not fully secure, Tenant shall construct a barricade of plywood or other material approved by Landlord to secure the Premises. Section 26.5 With respect to any labor performed or materials furnished by Tenant at the Premises, the following shall apply: All such labor shall be performed and materials furnished at Tenant's own cost, expense and risk. Labor and materials used in the installation of Tenant's furniture and fixtures, and in any other work on the Prem ises performed by Tenant, will be subject to Landlord's prior written approval. Any such approval of Tenant's labor shall constitute a revocable license authorizing Tenant to permit such labor to enter upon the Premises prior to the commencement of the Lease term for so long as Tenant's labor does not interfere with labor utilized by Landlord or any other tenant. With respect to any contract for any such labor or materials, Tenant acts as a principal and not as the agent of Landlord. Tenant agrees to indemnify and hold Landlord harmless from all claims (including costs and expenses of defending against such claims) arising or alleged to arise from any act or omission of Tenant or Tenant's agents, employees, contractors, subcontractors, laborers, materialmen or invitees or arising from any bodily injury or property damage occurring or alleged to have occurred incident to Tenant's work at the Prem ises. Tenant shall have no authority to place any lien upon the Premises or any interest therein nor in any way to bind Landlord; and any attempt to do so shall be void and of no effect. Landlord expressly disclaims liability for the cost of labor performed or materials furnished by Tenant. If, because of any actual or alleged act or omission of Tenant, any lien, affidavit, charge or order for the payment of money shall be filed against Landlord, the Premises or any portion thereof or interest therein, whether or not such lien, affidavit, charge or order is valid or enforceable, Tenant shall, at its own cost and expense, cause same to be discharged of record by payment, bonding or otherwise no later than fifteen (15) days after notice to Tenant of the filing thereof, but in all events, prior to the foreclosure thereof. All of Tenant's construction at the Premises shall be performed in strict compliance with the working drawings, all applicable building codes and other legal requirements, and in a good and workmanlike manner satisfactory to Landlord's Architect and in such manner as to not cause Landlord's fire and extended coveraoe insurance to be canceled or the rate therefor increased. In the performance of such work, Tenant shall not interfere with or delay any work being done by Landlord's contractors. Section 26.6 Tenant agrees that its construction at the Premises will be completed in accordance with the I.enant's Final Working Drawings. Upon completion of Tenant's construction at the Premises, Tenant shall provide to Landlord in recordable form an affidavit of completion, in accordance with Texas Property Code S 53.106, or any successor statutes. Section 26.7 In connection with any construction of im provements at the Prem ises by Tenant, Tenant shall take out and maintain (or cause the contractor under its construction contract(s) to take out and maintain) public liability insurance in a minim um am ount of S; 1,000,000.00 com bined single lim it. Said liability insurance shall name Landlord as an additional insured with Tenant (and shall contain a cross-liability endorsement) and shall be non-cancellable with respect to Landlord except upon thirty (30) days' notice to Landlord (given in the same manner as provided in this Lease) (or, at the request of Landlord, shall be in the form of a separate liability policy in which Landlord alone is the named insured). Tenant shall also take out and maintain (or cause the contractor under its construction contract(s) to take out and maintain) all builder's risk insurance to the full insurable value of improvements constructed and materials stored at the Premises. Said builder's risk insurance shall name Landlord as an additional insured and shall be non-cancellable with respect to Landlord. Certificates of all such insurance shall be delivered by Tenant to Landlord within five (5) days following Tenant's entering into any such construction contract(s) (but in all events prior to Tenant or Tenant's general contractor commencing construction). Section 26.8 All improvements constructed by Tenant at the Premises (excepting only unattached, movable trade fixtures installed by Tenant) shall, immediately upon such construction, become and remain the property of Landlord; and Tenant shall have no right, title or interest (including lien interest) therein, except only as Tenant under the provisions of this Lease. The aforesaid improvements, if constructed by Tenant, are not intended as any nature of rent or com pensation to Land lord. Any work at the Prem ises involving the sprinkler system (if any) serving the Prem ises shall be performed by Landlord or its contractors at Tenant's cost. Tenant shall pay the cost of any such work (or reimburse Landlord therefor) within ten (10) days after delivery to Tenant of a statement therefor. ARTICLE 27. MISCELLANEOUS Section 27.1 Nothing herein contained shall be deemed or considered by the parties hereto, nor by any third party as creating the relationship of principal and agent or of partnership or of joint venture between the parti~s hereto, it being understood and agreed that neither the method of computation of rent, nor any other prOVISion contained herem, nor any acts of the parties hereto, shall be deemed to create any relationship between the parties hereto other than the relationship of Landlord and Tenant. Section 27.2 Tenant shall not for any reason withhold or reduce or make any off-set against Tenant's require.d payments of Base Rent and Additional Rent provided in this Lease, it being agreed that the obligations of Landlord hereunder are independent of Tenant's obligations except as may be otherwise expressly provided. Page -12- Section 27.3 The liability of Landlord to Tenant for any default by Landlord under the term s of this Lease shall be limited solely to the proceeds of the sale on execution of the interest of Landlord in the Prem ises existing at the time any such liability is adjudicated; and Landlord shall not be personally liable for any deficiency or otherwise. Under no circumstances whatsoever shall Landlord ever be liable for consequential or special damages. This clause shall not be deemed to limit or deny any remedies which Tenant may have in the event of default by Landlord hereunder; which do not involve the personal liability of Landlord. Section 27.4 All remedies herein given to Landlord, including those not set forth but provided by law, shall be cumulative, and the exercise of one or more of such remedies by Landlord hereunder shall not exclude the exercise of any other consistent rem edy. Any waiver by Landlord, express or implied, of any breach of any term, covenant or condition hereof, shall not be deemed a waiver of such term, condition or covenant for any subsequent breach or of any other term, covenant or condition hereof, and consent or approval shall not be deemed to waive or render unnecessary consent to approval of any sub-sequential or sim ilar act. Acceptance of Rent by Landlord from Tenant or any assignee, subtenant, or other successor in interest of Tenant, or the payment or tender of any Rent to Landlord, with or without notice, shall never be construed as a waiver of any breach of any term, cond ition or covenant of this Lease. The failure of Landlord to declare any Event of Default upon the occurrence thereof or any delay by Landlord in taking action with respect thereto shall not waive such default, but Landlord shall have the right to declare such default at any time and to take such action as may be authorized hereu nder to the extent herein provided. Section 27.5 Whenever a period of time is herein prescribed for action to be taken by Landlord, Landlord shall not be liable or responsible for, and there shall be excluded from the computation of any such period of time, any delays due to strikes, riots, acts of God, shortages of labor or materials, war, government laws, regulations or restrictions or any other causes of any kind whatsoever which are beyond the reasonable control of Landlord. Section 27.6 Tenant agrees that it will from time to tim e upon req uest by Landlord execute and deliver to Landlord within ten (10) days an Estoppel Letter or a statement in recordable form certifying that this Lease is unmodified and in full force and effect (or if there have been modifications that the same is in full force and effect as so modified), that Landlord is not in default hereunder (or it Tenant claims Landlord is in default hereunder, specifying the claimed default with particularity) and including such other information as Landlord may designate. Section 27.7 The laws of the State of Texas shall govern the interpretation, validity, performance and enforcement of this Lease. If any provision of this Lease should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Lease shall not be affected thereby. Venue for any action under this Lease shall be in the County in which said Prem ises are located. Section 27.8 The captions used herein are for convenience only and do not lim it or am plify the provisions hereof. Section 27.9 The terms, provisions and covenants contained in this Lease shall apply to, inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors in interest and legal representatives, subject to provisions contained in this Lease limiting assignment. Section 27.10 This Lease contains the entire agreement between the parties, and no agreement shall be effective to change, modify or terminate this Lease, in whole or in part, unless such is in writing and duly signed by the party against whom enforcement is sought. Section 27.11 Tenant warrants that it has had no dealings with any broker or agent in connection with the negotiation or execution of this Lease, and Tenant agrees to indemnity Landlord and hold Landlord harmless from and against any and all costs, expenses or liability for comm issions or other compensations or charges claimed by any broker or agent with respect to this Lease. (The remainder of this page left intentionally blank) Page -13- EXECUTED by Landlord this _ day of September, 2008. EAST A DEVELOPMENTS, L.P. By: GSDB Management, L.L.C., its General Partner By: Garson Silvers, Manager EXECUTED by Tenant this _ day of September, 2008. LA PORTE ECONOMIC DEVELOPMENT CORPORATION By: Name: Pat Muston Title: President ATTESTATION: Name: Corporate Secretary ACKNOWLEDGMENTS STATE OF TEXAS S S COUNTY OF HARRIS S This instrument was acknowledged and sworn to before me on the _ day of September, 2008, by Pat Muston, in her capacity as President of La Porte Economic Development Corporation, Tenant. Notary Public, in and for the State of Texas STATE OF TEXAS S S COUNTY OF HARRIS S This instrument was acknowledged and sworn to before me on the _ day of September, 2008, by Garson Silvers, in his capacity as Manager of, and on behalf of GSDB Management, L.L.C., in its capacity as General Partner of, and on behalf of, East A Developments, L.P., Landlord. Notary Public, in and for the State of Texas Page -14- RULES AND REGULATIONS 1. Landlord agrees to furnish Tenant two keys without charge. Additional keys will be furnished at a nominal charge. Tenant shall not change locks or install additional locks on doors without prior written consent of Landlord. Tenant shall not make or cause to he made duplicates of keys procured from Landlord without prior written approval of Landlord. All keys to the Premises shall be surrendered to Landlord upon term ination of the Lease. 2. Tenant shall not at any time occupy any part of the Premises as sleeping or lodging quarters. 3. Unless ancillary to a restaurant or other food service use specifically authorized in the Lease, Tenant shall not place, install, or operate on the Premises any engine, stove or machinery, or conduct mechanical operations or cook thereon or therein, or place or use in or about the Prem ises any explosives, gasoline, kerosene, oil, acids, caustics, or any flammable, explosive or hazardous material without written consent of Landlord. 4. Landlord will not be responsible for lost or stolen merchandise, trade fixtures, furniture, furnishings, personal property, equipment, money or jewelry from the Premises regardless of whether such loss occurs when the area is locked against entry or not. 5. Vehicles must be parked entirely within the stall lines and all directional signs, arrows and posted speed limits must be observed. Parking is prohibited in areas not striped for parking, in aisles, where "No Parking" signs are posted, on ramps, in cross hatched areas, and in other areas as may be designated by Landlord. Every person is required to park and lock his vehicle. All responsibility for damage to vehicles or persons is assumed by the owner of the vehicle or its driver. 6. Tenant shall not lay floor covering within the Premises without written approval of Landlord. The use of cement or other similar adhesive materials not easily removed with water is expressly prohibited. 7. Tenant agrees to cooperate and assist Landlord in the prevention of canvassing, soliciting and peddling on or in the Premises. 8. If any governmental license or perm it shall be required for the proper and lawful conduct of Tenant's business, Tenant, before occupying the Premises, shall procure and maintain such license or permit and submit it for Landlord's inspection. Tenant shall at all times comply with the terms of any such license or perm it. 9. Tenant shall not install any radio or television antenna, loudspeaker or other device on the roof or exterior walls of the Prem ises. 10. Tenant shall not use in the Premises any hand trucks except those equipped with rubber tires and side guards or such other material handling equipment as Landlord may approve. No other vehicles of any kind shall be kept in or about the Premises without prior written approval of Landlord. 11. Tenant shall not permit the use or the operation of any coin operated machines on the Premises, including, without limitation, vending machines, video games, pinball machines, or pay telephones without the prior written consent of Landlord. 12. It is Landlord's desire to maintain the Premises in the highest standard of dignity and good taste consistent with comfort and convenience for Tenants thereof. Any action or condition not meeting this high standard should be reported directly to Landlord. Tenant's cooperation will be mutually beneficial and sincerely appreciated, Landlord reserves the right to make such other and further reasonable rules and regulations as in its judgment may from time to time be necessary, for the safety, care and cleanliness of the Prem ises and for the preservation of good order therein. Page -15- D Date: 10/3/2007 QUOTE # Q0789 TO Garson Silvers 1001 Usener Houston, TX 77009 (832) 228-0884 Salesperson ichael Harol ~-,.__.... Job Delivery Date Payment Terms 06343 Upon Receipt r..._...._m.__.m_._.._...~......_.._........__...._..._.._.._..__m.............__........__. I_.~:~rip~~_~___________omo__o. I Project Manager Lab Samples Cost Plus 20% Tank Removal based upon actual volume oftanks removed. Includes excavator, operator, laborer and replacement fill. and tank disposal. Line Total 12,000 $0.65 $7,800.00 Includes technician, specialty equipment(e.g explosion meter, eductor,etc) Waste Fuel Disposal Estimate (Actual Volume Unknown) $1,200.00 $650.00 $1,200.00 $650.00 Tank Removal Management Oversight 10,000 $0.75 $7,500.00 Total $22,750.00 $0.00 $22,750.00 om Subtotal Sales Tax Thank you for your business! askins & askins p.c. ATTORNEYS and COUNSELORS Knox W. Askins Clark T. Askins February 2, 2009 b I&@maWnE~ I F EB 0 2 2009 W CITY SECRETARY'S OFFICE Ms. Martha A. Gillett City Secretary City of La Porte City Hall' La Porte, Texas Re: Sale from Texas Parks and wildlife Department and the State of Texas, to the City of La Porte Development Corporation (portions of Block 198, Town of La Porte, Harris County, Texas) . Dear Martha: In connection with the above transaction, I enclose herewith original Deed without Warranty conveying the property described therein, with attached copy of Commission Agenda from the Texas Parks and Wildlife, with attachments. This Deed without Warranty was recorded on January 26, 2009, under Harris County. Clerk's File No. 20090030381. This Deed should be filed in the permanent records of the City of La Porte Development Corporation. I will forward the owners title policy to you, for filing with the Deed, when I have received it from the title company. I enclose copy of my letter to the Harris County Appraisal District, requesting this property be placed on the tax rolls in the name of City of La Porte Development Corporation, as exempt from taxation. KWA: sw Enclosure Yours very truly, ~ins City Attorney City of La Porte 702 W. Fairmont Parkway, P.O. Box 1218, La Porte, TX 77572-1218 281.471.1887 phone . 281.471.2047 fax. knoxaskins@comcast.net . ctaskins@swbell.net Martha A. Gillett February 2, 2009 page 2 cc: Mr. Ted Hollingsworth Land Conservation Director Texas Parks and wildlife Dept. via fax no. 512.389.4469 Mr. Benjamin Miller Attorney at Law via fax no. 713.892.5401 Mr. Ron Bottoms City Manager City of La Porte . askins & askins P.C. ATTORNEYS and COUNSELORS Knox W. Askins Clark T. Askins February 2, 2009 Harris County Appraisal District ATTENTION: NAME/ADDRESS CHANGE P.O. Box 920975 Houston, TX 77292-0975 IP)~~H~.lil"~.'.'n'.) lJ~ f-.- R 0 2' """" II, "c_ LUUj CITYSECRETAAY'S OFFICE Re: See attached copy of Deed Dear Sir/Madam: The City of La Porte Development Corporation, a Texas non profit corporation, has acquired the property described in the attached deed dated December 22, 2008. Please render this property in the name of the City of La Porte Development Corporation, and place on the tax rolls as EXEMPT from taxation. The City of La Porte Development Corporation is a Section 4B corporation, and is therefore exempt from local property taxation under Section 11.11 of the Texas Tax Code, pursuant to Article 5190.6, Section 4B(k). Thank you for your cooperation in this matter. KWA: sw Enclosures cc: Ms. Kathy Powell Tax Assessor Collector City of La Porte Ms. Martha A. Gillett City Secretary City of La Porte ( 702 W. Fairmont Parkway, P.O. Box 1218, La Porte, TX 77572-1218 281.471.1887 phone . 281.471.2047 fax. knoxaskins@comcast.net . ctaskins@swbell.net . ~.", :.... :,'" .;' ~"~,t'" j\) I II ' ~-, ~ "'0 w....c ~'1l C"'-"_~~'R l~t._;I~'If-f\~..f~~....~ 1 1[\:7.~ - O?-l6~l(! D~ f yj li'I'il o! CJ I l/I'i ~'~ I N \~ ~ '<Itr<1 ~I ~ DEED w 1'1'HODT WARRANTY 20Cloj:'Ai~:~'~).381. 01./26/2009 . RP2 $40.00 NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. STATE TEXAS OF KNOW ALL MEN BY THESE PRESENTS: COUNTY OF HARRIS Texas Parks and wildlife Department, an agency of the State of Texas, (as to Tracts I and II), and the State of Texas, acting herein by and through the Texas Parks and Wildlife Department (as to Tracts III and IV), as Grantor, for and in consideration of $450,000.00 paid, for Grantor's benefit, to Texas Parks and wildlife Department simultaneously with the delivery of this deed to Grantee, City of La Porte Development Corporation, a Texas non-profit I~ corporation, 604 West Fairmont Parkway, La Porte, Texas 77571, and for the further consideration of Grantor's right to continue to occupy and use the premises at 105 San Jacinto Street, La Porte, Harris County, Texas, at no cost through December 31, 2009, Grantee to take possession thereof on January 1, 2010; provided, however, Grantee shall have the right to immediate possession of the portion of the San Jacinto Street right-of-way, abutting the herein described Property, and abutting the alley adjacent to the herein described property, with Grantor using other means of ingress and egress to the herein conveyed property; has GRANTED and CONVEYED, and by these presents does GRANT and CONVEY unto Grantee four tracts of land in Harris County, Texas, described as follows, together with all of the Grantor's right, title, and interest in the adjoining street and alley rights-of-way: TRACT I: Lots 22, 23, 24, 25 and 26, in Block 198, TOWN OF LA PORTE, an addition in Harris County, Texas, according to the map or plat thereof recorded in Volume 1, Page 53 of the Map Records of Harris County, Texas. D TRACT II: A tract or parcel of land, out of Lots 1, 2, 3, 4 and 5, in Block 198, TOWN OF LA PORTE, an addition in Harris County, Texas, according to the map or plat thereof recorded in Volume I, Page 53 of the Map Records of Harris County, Texas, and being more particularly described by metes and bounds on Exhibit "A" attached hereto and made a part hereof. TRACT III: Lot 21, in Block 198, TOWN OF LA PORTE, an addition in Harris County, Texas, according to the map or plat thereof recorded in Volume 1, Page 53 of the Map Records of Harris County, Texas. TRACT IV: The South 41 feet of Lots 2, addition in Harris County, recorded in Volume I, Page 53 3, 4, and 5, in Block 198, TOWN OF LA PORTE, an Texas, according to the map or plat thereof of the Map Records of Harris County, Texas. TO HAVE AND TO HOLD the above described premises, together with all and singular, the right and appurtenances thereto in anywise belonging unto the said Grantee and its successors and assigns, forever. ~~ EXECUTED this'ZZi. day of 1 fAvv~, 2008. By: Texas Parks and wildlife Department, for itself, and the State of Texas, acting herein by and through the Texas Parks and wildlife i2tment ~~ Carte7 Smi th Executive Director \~ r~1 ~ o /:I I I ~ m I ~~ \\'i It! eJ STATE OF TEXAS COUNTY OF TRAVIS ~ instrument , 2008, by Wildlife Department, entities. was acknowledged before me on Carter Smith, Executive Director of an agency of the State of Texas, rdL the d:l:.. day of the Texas Parks and on behalf of said ~~ " CP~~_V~ Notary Public, State of Texas ~\'\~~~""~ ~'~~.... '!'~d. 1::.- ...-ft~ ! : : ! ~~. ..~$ ",,~/;i;'\.~\$' ;'I"IJI'\\~ PATRICIA VELA Notary Public. State of Texas My Commission Expires June 02, 2009 AFTER RECORDING RETURN TO'!/ PREPARED IN THE LAW OFFICE OF: ASKINS & ASKINS, P.C. P.O. Box 1218 La Porte, TX 77572 ASKINS & ASKINS, P.C. P.O. Box 1218 La Porte, TX 77572-1218 ~-',~%:H ~ ~-tI 1. . OQ t:.Io --"- 00 ~ =1 Q I ~ tr~~t of land out of Lots One (I), TN~ (2), Three (3), Four (4), dnd F1VC (5), Dlock One hundred ninety-eight (198); of LA PORTE, an adci1~i" . _.. .-. .... . - .... on in Harri. County, Texas, accordinD to the mep O. .... .L__._< recorded 1 V ... ,........ .....--..~"'. t f 11 n.:..olum" 1,.Paae'S3, Hap Record., Hanil County, Texas, and being -'f:'~~,;;...~.. Ytj!~N,~il>ecS;,~~.J9.U9"'~:' . :;.....:.: - '~1!iI11' if ~~- ..."'.OIil.'<'r....lo;:i".. 1,;-..' I3EGIN~ING n t the point of intCTsection -n'l'tne"'So.uth'!rlY rJnht. 01 .~ay line of ~aGt Mal" Streoet IIn~ the l::Asterl y rIght oC wav line Clt San Jacinto Avenue the same being the North westerly corner of said Lot S, Block 198; THENCE North 62 deg 44 mln East alonj{ the Southerly right 01 way line of East Main Street, 133.0 feet to a point, the same uieng the Northeasterly corner of Lot I, BlDck 198; TIIEI'!(:E South' 27 deg 16 min West along .the Ngrtheasterly property line of Lot I, and parallel to the Easterly right of way 'llne Df San Jacinto Avenue, a distance of 125 feet to the s~utheasterly corner of Lot One (I); THENCE S 62 deg 44 mln West along the Southerly property llne of Lot 1, and parallel to the Southerly.rlght of way line of East Main Street, a distance of 26.0 feet to a point, ~he southwesterly corner of Lot 1; ~~ ~j I I N ~ o THENCE North 27 deg 16 mln West along the common line of Lots 1 and Lot 2, a distance of 41.0 feet to ~ point for corner on the Wesl line of said Lot I; THENCE South 62 deg ~4 min West and parallel to the Southerly right of way llne of East Main a distance 01 107.0 feet to a point in the Eft5t~rly right of way 11ne of San Jaclnto Avenue; THENCE North 27 deg 16 min West along the Easterly right of way line of San Jacinto Avenue a distance of 84.0n feet to the place of beginning. ~ ~ I I rJOT1f. [" ........~Q TIrE COlYIPA.N""Y DOES NOT REPRESENT TfL~T THE ABO'VE ACBF~~GE OR SQUARE FOOTAGE CAJClfLATIOt';S ARE COBRFCT, Commission Agenda Item No. 21 Presenter: Ted Hollingsworth Action Land Sale - Harris County La Porte Regional Office August 20, 2008 I. Executive Summary: A developer, working closely with the City of La Porte, has made Texas Parks and Wildlife Department (TPWD) an offer to buy the La Porte Region 4 Parks Office. al ~ II. Discussion: The La Porte Regional Office (State Parks Region 4) sits on a prominent intersection in the old downtown section of La Porte in Harris County, twenty miles east of downtown Houston. The City of La Porte has been planning a revitalization of the old downtown section of La Porte for a number of years, and is now working with local businesses and developers to try and bring a vision of a revitalized downtown to fruition. o o I The La Porte Office was purchased in 1962, and was originally a gas station, service station and automotive parts store. The brick building has a flat roof and has suffered repeated water infiltration over the years. It has become a high maintenance facility, especially for its size and utility, and $300,000 was recently earmarked for building upgrades. The building is physically unattractive and sits squarely in the way of any effort to revitalize and beautify old downtown La Porte. A developer, with input and backing from the City, has approached TPWD about buying the facility, which sits on a roughly one-acre lot. The funds would be used to construct a new Region 4 Parks Office at Sheldon Lake State Park, also in east Harris County. ~ rri I N Il1 1:1 III. Recommendation: The staff recommends the Texas Parks and Wildlife Commission adopt the following motion: ~I ~ "The Texas Parks and Wildlife Commission finds that ownership of the La Porte Regional Office is no longer in the best interest of Texas Parks and Wildlife Department and authorizes the Executive Director to take all necessary measures to sell the La Porte Regional Office property." Attachments - 2 1. Exhibit A - 2. Exhibit B - Commission Agenda Item No. XX Exhibit A Locator Map for La Porte Regional Office, Harris County Q N o Q I lfl'I 1'. ~, ~ I J I "'1 \\, ~ Q ~ ~ ~ , . Commission Agenda Item No. XX Exhibit B Site Map of the Region 4 Office Property '" N o Q I ~ m I ~~l IJJ Q !~ ~ "". , ... STATE OF TEXAS COUNTY OF TRAVIS On this day personally appeared before me Ted Hollingsworth, who being by me first duly sworn, on oath deposes and says: "I am the Director, Land Conservation Texas Parks & Wildlife Department, and I am authorized to make this statement." "At a regular public meeting of the Texas Parks & Wildlife Commission held after due notice on August 21, 2008, in Houston, Harris County, Texas, the motion quoted in the attached agenda item was made, seconded and unanimously passed." N 1\;\ , ~ Q f'!i'\ \I"" I I ~ l~ j N i~ Q Sworn to and subscribed before me on December 9, 2008: \---/ ~ " RECORDER'S M~MORA~DUM:,_ At tr;:. time 01 record,,: '.:' UiIS liis,rument ....".' tound to be inad,?~uat~ tv ,:~e best photograprllc reprodUction be.-;at:ss c.] il:"glb:lity, carbon or photo copy, discolored paper, etc, All block~uts il.dditions and changes \'I,ere present at the lime the instrument was liied and reCOfded. ":---"'-~~'';~\\\\l ho.;>~~~~\ SHARLETTE D. MANEY L t...* ...( * % NOTARY PUBLIC ~ \ / J State of Texas '\~;~~/~~~./ My Commission Expires June 21,2009 \\\\\~,~~~~-_..:- .., \ , !:~":l1\CT" T~" SllE. PENilL OR IjSE (IF 1H~ D~~~~i~EJ, RE~l ANY PRO'IISON HEPtiN NHJCH~ p.':' .;", :"N;"" 'NO ul,',rc;CE'"E ,I.)" ,,,,PI, L''II. PROP:RT~ EE ~~S::'r eeL 0';, ~''', R"'~t '... j, 1, ,"'" ' '.. .. THE STATE OF TEXAS COU NTY OF HARR,~~ . 'W ~\I c:r: f! f~ N'J~ber St-~~~:1C~ c~ tit :1:~: a~;: ~'. tt'~ time \ rlerec~ :ed'~ tt'a: ,::",'5 t.s:;1;"o:n. ~ ;;,~ ~--::~~ 'n N frlf'cta: ?JCtrc ~,~r1s 0\ P,ea: r,Op€~ of KarIS stlm~: ~,~'~cn ~,' me, a~ was QJI~ Rt'J..I,<Jt.l ' ~ Cart! , ,,,",as:xl JAN 2 \) 2G~9 .,..." U} e ~~~ COUNTY CLERr: HARRIS COUNTY, TEXAS ~ c:::t c:::t ....c:> c.... > :z: N 0'\ ....,,~- ij; f- p: C ',-~~\ ,.'\.. r ~ ( :Do ::J: - - .. N N "- "- E URS October 1, 2008 Mr. Ron Bottoms City Manager City of LaPorte 6500 Fairmont Parkway LaPorte, Texas 78730 RE: Five Points Plaza Design, Construction phase services and Studies Proposal Dear Mr. Bottoms: I appreciate this opportunity to have URS provide planning and design services for the Five Points Plaza Site. I would like to thank you, Gretchen Larson, Deborah Dye, John Joerns, and Tim Tietjens for the support we have received thus far. We hope you have found our previous efforts to be valuable tools to the redevelopment of the Five Point area. The renderings provided our initial vision of the possibilities for the Five Points area. Recently we were excited to develop the thought provoking and inspiring video presentation. URS is prepared to proceed into the development of the plaza based on the two previous efforts. From the initial conversation with Bruce myself and the subsequent visits with your staff I am confident that we can help you realize your objectives for an exciting public plaza for the citizens of LaPorte and southeast Texas. The work plan as understood will establish requirements for the Five Points Plaza, and assist in the establishment of a direction and strategy for your near-term and long-term development. Our compensation for the design of the plaza and the traffic and infrastructure plaza on a time and material not to exceed are as follows: $140,000.00 for the plaza design $22,000 for construction phase services $35,000.00 for traffic and utility infrastructure studies relating to the plaza area. $19,900.00 for reimbursable expenses $7,000.00 allowance for surveying plaza $223,900.00 URS Corporation 9801 Westheimer,Suite 101 Houston,Texas 77042 Tel: 713789-9801 Fax: 713 789 8404 URS OUR UNDERSTANDING OF THE PROJECT- Five Points Plaza ,~~ ;n F ii, ~ \.-. r,,,.,. ...., -.' I!.. ~"t ;-- - '" ~ .~_.JJ-JI.I.a.1r-" _11111 f;" ,~__Il .- ~ -- - .:=::.=;: == SCOPE OF WORK Design Tasks URS proposes to develop a planning and design and construction administration proposal for the development of the LaPorte Five Points Plaza. The Plaza is defined as the area east of Broadway form the curb line, to the realignment of East A street new curb line, eastern edge of the building fa<;ade line, and northwesterly up to the triangle tip near main street. Any work beyond this boundary is not included in this proposal. (See attachment B project boundary)URS proposes to utilize cost effective LEED principles of design for all work in this project. This design proposal will include the above grade features such as Landscape, Hardscape, Architectural Facilities, and Water Features etc. URS will provide complete design services form preliminary documents through construction documents. Study and Analysis tasks · URS will provide underground and above ground studies for utilities and traffic analysis. The results of these studies will allow for a clearer picture of the below grade systems and proVide direction to a design proJect, below grade and historic utility plans including water, waste water, electrical, telephone, fiber optic, natural gas, documentation detailing maintenance records, historical deployment, loading Information, upgrades, and future planned initiatives. The Plaza Design will include: . Landscaping which have water native plant material or southeast Texas adaptable plant material that is low water demand. The landscaping will include an irrigation system that will use rain water or gray water as available to support the plant material. Also planned is the use of mulch material that will assist in the preservation of water and moisture in the soils. URS Corporation 9801 Westheimer,Suite 101 Houston,Texas 77042 Tel: 713789-9801 Fax: 713 789 8404 URS . Hardscape which will include side walks, plaza pavers, curbs, and drivable areas for delivery vehicles. An area for a prominent piece public art will be included (public art is not included.) Hardscape will also include street lights, signage, and ornamental fencing. . Facilities to be part of this effort include the Gazebo and 2 entrance gates /archways. . Water Feature to include at least one major water feature and possible a smaller one as indicated on the video. . Cost estimates for the project from initial concept through final design. The design and construction will be completed with lEED criteria in mind. We want to provide and exciting venue for the public gatherings and also encourage and support the redevelopment (by private developers) of the Five Points area. Knowledge of the existing surface, and sub surface infrastructure will need to be fully understood early in this process. Phase One 300/0 Desian Project Initiation / Visioning - This phase shall incorporate the project kick-off, to include an overall site tour, as well as a visioning work session to identify project goals and priorities. Key tasks associated with this phase include: · Establishment of a working group consisting of key representatives from the City of laPorte, and may include other east Harris County leadership, for review and approval of planning options. · To provide a forum for communication and consensus-building, a one day visioning retreat will be held with key staff. to confirm the planning process, priorities, timeline, project objectives and anticipated project outcomes. · Orientation site tour(s) to understand existing site, architectural, engineering and functional conditions. Data Gathering - This phase shall involve the gathering of data including information related to documents available from laPorte, Harris County, Center Point data etc. and existing surveys, plans, drawings and studies. Key tasks involved include: · Gathering of information related to surveys and land plats, historical utilization, zoning information, environmental etc. · Gathering of information related to the physical facilities, including architectural and engineering drawings, master planning studies, etc. · Current above grade utility plans including water meters, hydrants, waste water, electrical (power poles overhead lines, telephone (communication poles or structures, fiber optic stations, natural gas meters. URS Corporation 9801 Westheimer,Suite 101 Houston,Texas 77042 Tel: 713789-9801 Fax: 713 789 8404 URS Documentation . Landscape Plan Concept . Hardscape Plan Concept . Water Feature Plan Concept . Architectural Facilities Plan Concepts . Concept Cost estimate . Professional Services scope schedule and budget update Phase One A Infrastructure Study Analysis Phase Concurrent to design Phase services- A high level overview of the cities' existing infrastructure systems will be conducted to identify current conditions and capacities to support any additions or renovations proposed by the five points development plan and other proposed adjacent development as of the date of this proposal. Key tasks involved include: . The Engineer will collect information on all existing utilities from municipal, private and industrial sources. . The Engineer will also obtain existing statistical information about water flows and demands, wastewater flows and storm water flows. . The capacities of the existing system will be estimated and compared to the eXisting flows for adequacy determinations. . Future flow projections Will be estimated based on population and development plans and trends. · Future flows will be compared to existing infrastructure capacities and needed new or upgraded facilities will be sized. . Traffic counts at three intersections . Signal warrant study at three intersections. Documentation . Plan View Layout of revise street pattern . Street, roadway and "new" sidewalk at parking · Intersection layout (3) . ROW requirements (corner clips only) . Cross section of each new street layout. URS Corporation 9801 Westheimer,Suite 101 Houston,Texas 77042 Tei: 713789-9801 Fax: 713 789 8404 URS . The background information, system analyses and recommendations will be summarized in narrative format and graphics will be prepared illustrating recommendations. Phase Two 60% Design · Refine Options Development - In this phase URS, working closely and on-site with the City of LaPorte working group, shall develop the options for the listed. Options shall be developed that identify alternative planning solutions for the departments, as well as associated phasing requirements and anticipated costs. Key tasks associated with this phase include: · Develop facility planning alternatives in departmental block form that illustrate departments to be expanded, renovated or relocated; as well as site development concepts to address improvements to access, entry and parking. · Integration of findings from the infrastructure study to include current mechanical, plumbing, electrical and structural systems and their adequacy for future use and expansion. Docu mentation . Landscape Plan Best Option . Hardscape Plan Best Option . Water Feature Plan Best Option . Architectural Facilities Plan Best Options . Cost estimate for Best Option · Professional Services scope schedule and budget update Phase Three 100% Design Plan Finalization - The final plans shall be developed and a published document distributed during this phase, with preferred landscape plan, hardscape plan, water features plan, Facilities plan, and infrastructure and utilities plan. URS will also provide short range and long range development options, capital cost estimates, and option(s) with advantages / disadvantages. . Landscape Final Plan . Hardscape Final Plan . Water Feature Final Plan · Architectural Facilities ( Gazebo, gates), Final Plan · Cost estimate for Final Plan Phase Four Construction URS will assist the City of LaPorte in by developing documents for bidding. URS will provide construction administration services for the Plaza project. URS Corporation 9801 Westheimer,Suite 101 Houston,Texas 77042 Tel: 713789-9801 Fax: 713 789 8404 URS Construction Administration Make periodic visits (approximately biweekly), as distinguished from the continuous services of a resident Project Representative to familiarize ourselves generally with the progress and quality of the work, and to determine in general if the work is proceeding in accordance with the contract documents. PROJECT TEAM URS proposes a veteran consulting team versed in the public spaces and infrastructure unique Plaza development for the development of the proposed Five Points Plaza. Leading the overall effort, and serving as Client Executive, will be Mr. Bruce Broberg, PE. As the primary day-to-day contact for this project, Mr. Wardrop has over 29 years of extensive experience in the design and delivery of healthcare facilities. His experiences have evolved into an expertise in project formation, master planning, delivery and management, with a commitment to responsive, responsible service. Sharing leadership responsibilities and serving as Project Manager will be Mr. Dan Wardrop, AlA, for nearly 29 years, Mr. Wardrop has provided unique planning and design projects to clients throughout the world. His application of functional problem-solving principles and responsiveness to clients will result in unique and innovative project. As Client Executive and Engagement Leader, Mr. Wardrop and Mr. Broberg will be source of authority, accountability and communication between URS and the City of LaPorte. In support of Mr. Wardrop and Mr. Broberg, URS has assembled a senior, talented project team of experts for the engagement. Other key team members on the team include: URS Corporation 9801 Westheimer,Suite 101 Houston,Texas 77042 Tel: 713789-9801 Fax: 713 789 8404 URS Mr. Michael Bagstad, PE Utility Infrastructure Leader Mr. Rich Squire, PE Traffic Leader Mr. Bill O'Brien ALSA Landscape Design Leader Mr. David Cabage, Cost Estimation Leader FEES AND EXPENSES and additional services Time and Materials not to exceed $197,000.00 Design and Construction Administration Traffic and Infrastructure Studies $162,000.00 $35,000.00 Attachments A: Hourly Rates for URS staff B: Boundary of the Plaza C: Contract for services URS PSA1 REIMBURSABLE EXPENSES The professional fees do not include reimbursable expenses. Reimbursable expenses are all expenses incurred in connection with the project including copies, photos, models, renderings, express mail, supplies travel(site trips, meetings), lodging, meals, printing, and long distance phone calls in connection with the project,. Reimbursable expenses are typically between 5% and 15% of the professional fees, depending upon travel distances and frequency of meetings. Due to the proximity of the Five Points Plaza we anticipate the project-related expenses not to exceed $19,900.00. Additional services not include in the above URS has in-house capabilities Geotechnical Services Estimate To be Determined (TBD) Environmental Testing TBD *Surveying of the Plaza area allowance $7,000.00 additional Construction phase services TBD Designs outside Plaza boundary TBD Cost Of Permitting TBD Contractors as built documents TBD URS Corporation 9801 Westheimer,Suite 101 Houston,Texas 77042 Tel: 713 789-9801 Fax: 713 789 8404 URS SCHEDULE An outlined design schedule is proposed to be completed in an approximate 14.5- week time frame, pending availability of all parties. URS will tailor this schedule as needed to accommodate these specific needs. A notice to proceed for example on October 15, 2008 would result in a final of design by January 30. This assumes a close coordination with decision makers for approvals in a few days from completion of tasks. Study and Analysis Services will be approximately 6 weeks Payment shall be made within thirty (30) days of dated invoice. Late payments shall bear interest at one percent (1 %) per month on the outstanding balance, however, not to exceed legally allowed rate. Mr. Bottoms if this proposal is in accordance with your intent and meets with your approval please indicate your acceptance by signing each of the three proposals and return one original to my attention. Please do not hesitate to call if you have any further questions. Sincerely, URS Corporation B~b:i:'; P~lll/ i ~~/-~ Dan Wardrop, AI~ Accepted By: City of LaPorte Signature Title Date URS Corporation 9801 Westheimer,Suite 101 Houston,Texas 77042 Tel: 713789-9801 Fax: 713 789 8404 Attachment A URS CORPORATION - HOUSTON, TEXAS PAYMENT PROVISIONS & 2008 SCHEDULE OF FEES AND CHARGES The following describes the basis for compensation for services performed during the calendar year 2008. This Schedule of Fees and Charges may be adjusted annually on January 1 of each subsequent year to reflect merit and economic salary increases, and changes in the expected level and mode of operations for the new year. The new Schedule of Fees and Charges will apply to existing and new assignments from the date this fee schedule is approved. PERSONNEL CHARGES The charge for all time required in the performance of the Scope of Service, including office, field and travel time, will be at the Hourly Rates set forth below for the labor classifications indicated. Billing Category (BC) Loaded Rate ($/hr) Principal Project Manager Senior Consultant Sr. PM Sr. StaffEng/Sci/Designer Eng/Sci II/Designer Technician StaffEng/Sci Designer Secretary Project Administrator Scientist 210 180 120 105 92 81 75 65 65 60 Overtime (hours worked in excess of eight [8] hours per day) by exempt personnel will be charged at the above straight time hourly rate. Overtime by non-exempt personnel (classifications identified with an asterisk"*") will be charged at 1.5 times the above hourly rate. Special project accounting, reporting and financial services, including submission of invoice support documentation, will be charged at the rate of a See/Clerk IV. PAYMENT PROVISIONS Payment provisions are as stated in the PSA-l under Article II - Payments. OTHER PROJECT COSTS Subcontracts Equipment Rental and Other Costs The cost of services subcontracted by URS Corporation to others and other costs incurred by URS Corporation will be charged at cost plus 10%. Communications The cost of communications for office telephone, facsimile, postage, and incidental copying costs will be charged at a flat rate of3% of total gross labor charges. Courier services and express delivery will be charged at cost plus 10%. Document Reproduction No charges will be made for routine copying and printing. Large copying and printing jobs will be charged at $0. 1 2/page for black and white and $1.20/page for color. Vehicle Rental Field vehicles (pick-ups, vans, trucks, etc.) used on project assignments will be charged at a flat rate of $50.00/day or $200/week. Personal vehicles usage will be based upon the U. S. Government designated rate. Specialized Equipment The use of specialized URS Corporation equipment will be the fixed rental rates set forth in the Schedule of Specialized Equipment Charges. This fee schedule contains confidential business information and is not to be copied or distributedfor any purpose other than the use intended in this contract or proposal (1) -+-' C Q) E .c () co -+-' -+-' <( AGREEMENT FOR PROFESSIONAL SERVICES (" Agreement") This Agreement between City of Laporte ,("Client") and URS Corporation ("URS"), a Navada corporation; 9801 Westheimer, Houston, Texas CURS"), is effective as of April 10, 2008 . The parties agree as follows: It is the expressed intent of the parties that this Agreement shall be made available to the subsidiaries and affiliated companies of URS. For the purposes of this Agreement, as it applies to each Work Order, the term "URS" shall mean either, URS Corporation, or the affiliated company identified in the Work Order. The applicable Work Order shall clearly identify the legal name of the affiliate or subsidiary accepting the Work Order. ARTICLE I - Work Orders. The Scope of Services ("Services"), the Time Schedule and the Charges are to be set forth in a written Work Order to this Agreement. The terms and conditions of this Agreement shall apply to each Work Order, except to the extent expressly modified by the Work Order. Where charges are "not to exceed" a specified sum, URS shall notify Client before such sum is exceeded and shall not continue to provide the Services beyond such sum unless Client authorizes an increase in the sum. If a "not to exceed" sum is broken down into budgets for specific tasks, the task budget may be exceeded without Client authorization as long as the total sum is not exceeded. Changes in conditions, including, without limitation, changes in laws or regulations occurring after the budget is established or other circumstances beyond URS control shall be a basis for equitable adjustments in the budget and schedule. ARTICLE II - Payment. Unless otherwise stated in an Work Order, payment shall be on a time and materials basis under the Schedule of Fees and Charges in effect when the Services are performed. Client shall pay undisputed portions of each progress invoice within thirty (30) days of the date of the invoice. If payment is not maintained on a thirty (30) day current basis, URS may suspend further performance until payments are current. Client shall notify URS of any disputed amount within fifteen (15) days from date of the invoice, give reasons for the objection, and promptly pay the undisputed amount. Client shall pay an additional charge of one and one-half percent (1 %%) per month or the maximum percentage allowed by law, whichever is the lesser, for any past due amount. In the event of a legal action for invoice amounts not paid, attorneys' fees, court costs, and other related expenses shall be paid to the prevailing party. ARTICLE III - Professional Responsibility. URS is obligated to comply with applicable standards of professional care in the performance of the Services. Client recognizes that opinions relating to environmental, geologic, and geotechnical conditions are based on limited data and that actual conditions may vary from those encountered at the times and locations where the data are obtained, despite the use of due professional care. URS is not responsible for designing or advising on or otherwise taking measures to prevent or mitigate the effect of any act of terrorism or any action that may be taken in controlling, preventing, suppressing or in any way relating to an act of terrorism. ARTICLE IV - Responsibility for Others. URS shall be responsible to Client for URS Services and the services of URS subcontractors. URS shall not be responsible for the acts or omissions of other parties engaged by Client nor for their construction means, methods, techniques, sequences, or procedures, or their health and safety precautions and programs. ARTICLE V - Risk Allocation. The liability of URS, its employees, agents and subcontractors (referred to collectively in this Article as "URS"), for Client's claims of loss, injury, death, damage, or expense, including, without limitation, Client's claims of contribution and indemnification, express or implied, with respect to third party claims relating to services rendered or obligations imposed under this Agreement, including all Work Orders, shall not exceed in the aggregate: PSA-1.DOC (Rev. 1) 30-AUG-04 - 1 - (1) The total sum of $250,000 for claims arising out of professional negligence, including errors, omissions, or other professional acts, and including unintentional breach of contract; and any actual or potential environmental pollution or contamination, including, without limitation, any actual or threatened release of toxic, irritant, pollutant, or waste gases, liquids, or solid materials, or failure to detect or properly evaluate the presence of such substances, except to the extent such release, threatened release, or failure to detect or evaluate is caused by the willful misconduct of URS; or (2) The total sum of $1,000,000 for claims arising out of negligence, breach of contract, or other causes for which URS has any legal liability, other than as limited by (1) above. ARTICLE VI - Insurance. URS agrees to maintain during the performance of the Services: (1) statutory Workers' Compensation coverage; (2) Employer's Liability; (3) General Liability; and (4) Automobile Liability insurance coverage each in the sum of $1 ,000,000. ARTICLE VII - Conseauential Damaaes. Neither Party shall be liable to the other for consequential damages, including, without limitation, loss of use or loss of profits, incurred by one another or their subsidiaries or successors, regardless of whether such damages are caused by breach of contract, willful misconduct, negligent act or omission, or other wrongful act of either of them. ARTICLE VIII - Client Responsibility. Client shall: (1) provide URS, in writing, all information relating to Client's requirements for the project; (2) correctly identify to URS, the location of subsurface structures, such as pipes, tanks, cables and utilities; (3) notify URS of any potential hazardous substances or other health and safety hazard or condition known to Client existing on or near the project site; (4) give URS prompt written notice of any suspected deficiency in the Services; and (5) with reasonable promptness, provide required approvals and decisions. In the event that URS is requested by Client or is required by subpoena to produce documents or give testimony in any action or proceeding to which Client is a party and URS is not a party, Client shall pay URS for any time and expenses required in connection therewith, including reasonable attorney's fees. Client shall reimburse URS for all taxes, duties and levies such as Sales, Use, Value Added Taxes, Deemed Profits Taxes, and other similar taxes which are added to or deducted from the value of URS Services. For the purpose of this Article such taxes shall not include taxes imposed on URS net income, and employer or employee payroll taxes levied by any United States taxing authority, or the taxing authorities of the countries or any agency or subdivision thereof in which URS subsidiaries, affiliates, or divisions are permanently domiciled. It is agreed and understood that these net income, employer or employee payroll taxes are included in the unit prices or lump sum to be paid URS under the respective Work Order. ARTICLE IX - Force Maieure. An event of "Force Majeure" occurs when an event beyond the control of the Party claiming Force Majeure prevents such Party from fulfilling its obligations. An event of Force Majeure includes, without limitation, acts of God (including floods, hurricanes and other adverse weather), war, riot, civil disorder, acts of terrorism, disease, epidemic, strikes and labor disputes, actions or inactions of government or other authorities, law enforcement actions, curfews, closure of transportation systems or other unusual travel difficulties, or inability to provide a safe working environment for employees. In the event of Force Majeure, the obligations of URS to perform the Services shall be suspended for the duration of the event of Force Majeure. In such event, URS shall be equitably compensated for time expended and expenses incurred during the event of Force Majeure and the schedule shall be extended by a like number of days as the event of Force Majeure. If Services are suspended for thirty (30) days or more, URS may, in its sole discretion, upon 5 days prior written notice, terminate this Agreement or the affected Work Order, or both. In the case of such termination, in addition to the compensation and time extension set forth above, URS shall be compensated for all reasonable termination expenses. ARTICLE X - RiQht of Entrv. Client grants to URS, and, if the project site is not owned by Client, warrants that permission has been granted for, a right of entry from time to time by URS, its employees, agents and subcontractors, upon the project site for the purpose of providing the Services. Client recognizes that the use of investigative equipment and practices may unavoidably alter the existing site conditions and affect the environment in the area being studied, despite the use of reasonable care. PSA-1DOC (Rev. 1) 30-AUG-04 - 2 - ARTICLE XI - Documents. Provided that URS has been paid for the Services, Client shall have the right to use the documents, maps, photographs, drawings and specifications resulting from URS efforts on the project. Reuse of any such materials by Client on any extension of this project or any other project without the written authorization of URS shall be at Client's sole risk. URS shall have the right to retain copies of all such materials. URS retains the right of ownership with respect to any patentable concepts or copyrightable materials arising from its Services. ARTICLE XII - Termination. Client may terminate all or any portion of the Services for convenience, at its option, by sending a written Notice to URS. Either party can terminate this Agreement or a Work Order for cause if the other commits a material, uncured breach of this Agreement or becomes insolvent. Termination for cause shall be effective twenty (20) days after receipt of a Notice of Termination, unless a later date is specified in the Notice. The Notice of Termination for cause shall contain specific reasons for termination and both parties shall cooperate in good faith to cure the causes for termination stated in the Notice. Termination shall not be effective if reasonable action to cure the breach has been taken before the effective date of the termination. Client shall pay URS upon invoice for Services performed and charges incurred prior to termination, plus reasonable termination charges. In the event of termination for cause, the parties shall have their remedies at law as to any other rights and obligations between them, subject to the other terms and conditions of this Agreement. ARTICLE XIII - No Third Party RiClhts. This Agreement shall not create any rights or benefits to parties other than Client and URS. No third party shall have the right to rely on URS opinions rendered in connection with the Services without the written consent of URS and the third party's agreement to be bound to the same conditions and limitations as Client. ARTICLE XIV - Assicmments. Neither party to this Agreement shall assign its duties and obligations hereunder without the prior written consent of the other party. ARTICLE XV - Hazardous Substances. All nonhazardous samples and by-products from sampling processes in connection with the Services shall be disposed of by URS in accordance with applicable law; provided, however, that any and all such materials, including wastes, that cannot be introduced back into the environment under existing law without additional treatment, and all hazardous wastes, radioactive wastes, or hazardous substances ("Hazardous Substances") related to the Services, shall be packaged in accordance with the applicable law by URS and turned over to Client for appropriate disposal. URS shall not arrange or otherwise dispose of Hazardous Substances under this Agreement. URS, at Client's request, may assist Client in identifying appropriate alternatives for off-site treatment, storage or disposal of the Hazardous Substances, but URS shall not make any independent determination relating to the selection of a treatment, storage, or disposal facility nor subcontract such activities through transporters or others. Client shall sign all necessary manifests for the disposal of Hazardous Substances. If Client requires: (1) URS agents or employees to sign such manifests; or (2) URS to hire, for Client, the Hazardous Substances transportation, treatment, or disposal contractor, then for these two purposes, URS shall be considered to act as Client's agent so that URS will not be considered to be a generator, transporter, or disposer of such substances or considered to be the arranger for disposal of Hazardous Substances, and Client shall indemnify URS against any claim or loss resulting from such signing. ARTICLE XVI - Venue. In the event of any dispute between the parties to this Agreement, the venue for the dispute resolution shall be any state or federal court in the United States having jurisdiction over the parties. The foregoing notwithstanding, if the project is located outside the United States, the laws of the State of California shall govern and in such event, any dispute under the Agreement not resolved amicably shall be resolved under the binding rules of the American Arbitration Association. ARTICLE XVII - Intearated Writina and Enforceability. This Agreement constitutes the final and complete repository of the agreements between Client and URS relating to the Services and supersedes all prior or contemporaneous communications, representations, or agreements, whether oral or written. Modifications of this Agreement shall not be binding unless made in writing and signed by an Authorized Representative of each party. The provisions of this Agreement shall be enforced to the fullest extent permitted by law. If any provision of this Agreement is found to be invalid or unenforceable, the provision shall be construed and applied in a way that comes as close as possible to expressing the intention of the parties with regard to the provisions and that saves the validity and enforceability of the provision. PSA-1 DOC (Rev. 1) 30-AUG-04 - 3 - THE PARTIES ACKNOWLEDGE that there has been an opportunity to negotiate the terms and conditions of this Agreement and agree to be bound accordingly. ~ 0; QnttO'Tli C:i1),~"'n"'7;P Ci of La Porte ''it" .1/14 e r.-vf- TYPedramefTitl~ ,./ It) ~~ 06 Date of Signature [nrpt'},.~j-,' () VI ~?t/~ Bruce Brobero. P.E. Vice President URS Corporation Typed NamefTitle lo//~/l J' Date of Si!fnatur/! PSA-1.DOC (Rev. 1) 30-AUG-04 - 4 - TIME AND MATERIALS WORK ORDER NO. In accordance with the Agreement for Professional Services between City of La Porte ("Client"), and URS CO/'DOration ("URS"). a Navada corporation, dated , this Work Order describes the Services, Schedule, and Payment Conditions for URS Services on the Project known as: 5 Points Development Client Authorized Representative: Address: Ron Bottoms 401 West Fairmont Parkway, La Porte, Texas 77571 Telephone No.: (281 )471-5020 URS Authorized Representative: Bruce Broberg Address: 9801 Westheimer, Suite 500 Houston, Texas 77042 Telephone No.: (713)914-6614 SERVICES. The Services shall be described in Attachment A to this Work Order. PAYMENT. Payment of is due upon signature of this Work Order and will be applied against the final invoice for this Work Order. URS charges shall be on a "time and materials" basis and shall be in accordance with the URS Schedule of Fees and Charges in effect at the time the Services are performed. Payment provisions and the URS current Schedule of Fees and Charges are attached to this Work Order as Attachment ~. TERMS AND CONDITIONS. The terms and conditions of the Agreement referenced above shall apply to this Work Order, except as expressly modified herein. ACCEPTANCE of the terms of this Work Order is acknowledged by the following signatures of the Authorized Representatives. lIifk4 ,Y &n Signature { 'Fl~ ~Ellt,,~~ r.~~~rF,~ C ona Porte ; ,( t 'IN1 ~ Typed 7me~'e ;'0 t tf)~ Date df Signature Co, p~,...J. ; o.v1 UR% ~ s.~~ e.:; Bruce Brobera URS Corooration Typed NameITitJe 10/IJ ) 1J<f" Date of ~gnatid're PSA-1.DOC (Rev. 1) 30-AUG-04 - 1 -