HomeMy WebLinkAboutPR 16055: LAMAR GRANT FOR A STUDENT SUCCESS CENTER Interoffice
MEMORANDUM
To: Mayor, City Council, City Manager
From: Floyd Batiste, CEO
Date: August 31, 2010
Subject: P. R. No. 16055; Council Meeting of September 7, 2010
Attached is P. R. No. 16055 approving a grant to Lamar State
College — Port Arthur for the construction of a new building
known as the Student Success Center under the Operation
Downtown Site Improvement Grant Program
P. R. No. 16055
9/1/2010 FB
RESOLUTION NO.
A RESOLUTION APPROVING A GRANT TO LAMAR
STATE COLLEGE - PORT ARTHUR FOR THE
CONSTRUCTION OF A NEW BUILDING KNOWN AS
THE STUDENT SUCCESS CENTER UNDER THE
OPERATION DOWNTOWN SITE IMPROVEMENT
GRANT PROGRAM
WHEREAS, on May 9, 2009, a ballot proposition was presented to and approved by
the qualified voters in the City of Port Arthur, Texas (the "City") for the City of Port Arthur
Section 4A Economic Development Corporation (the "PAEDC ") to utilize Section 4A sales
and use tax funds for "the cost of demolition of dilapidated structures and infrastructure limited
to streets and roads, rail spurs, water and sewer utilities, electric and gas utilities, drainage,
site improvements and related improvements necessary to promote or develop new or expanded
business enterprises within a project area from 7 Street to the Intracoastal Canal and from
Martin Luther King, Jr. Drive to Lake Charles Avenue within the City "; said authority limited
to the PAEDC's expenditure of not more than $750,000 per year for said projects (the "Ballot
Proposition "); and
WHEREAS, the PAEDC has developed an application for a Site Improvement Grant
Program under OPERATION DOWNTOWN; and
WHEREAS, Lamar State College -Port Arthur has submitted an Application for the
construction of a new building know as the Student Success Center in accordance with its
Application (the "Application ") and made a part hereof for all purposes; and
WHEREAS, on August 9, 2010, the Board of Directors of the PAEDC considered and
approved funding of an OPERATION DOWNTOWN grant to Lamar State College -Port
WHEREAS, funds are available during fiscal year 2009 -2010 from the funds allocated
in the Ballot Proposition for improvements outlined in the Application; and
WHEREAS, PAEDC has adopted an OPERATION DOWNTOWN Site Improvement
Grant Agreement attached hereto as Exhibit "A" (the "Grant Agreement ") with related exhibits
which outline the responsibilities and financial commitment of Lamar State College -Port Arthur
to construct the Student Success Center and to install the infrastructure improvements as outlined
in its Application to be funded in part by the Grant.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PORT ARTHUR:
Section 1. That the facts and opinions in the preamble are true and correct.
Section 2. That the City Council hereby authorized the allocation of $250,000 of funds
from the Ballot Proposition for fiscal year 2009 -2010 to fund the construction of a new building
know as the Student Success Center under the Application submitted by Lamar State College -
Port Arthur.
Section 3. That a copy of this Resolution shall be spread upon the Minutes of the City
Council.
READ, ADOPTED AND APPROVED on this day of A.D., 2010,
at a Meeting of the City Council of the City of Port Arthur, Texas, by the following vote:
AYES:
Mayor
Councilmembers
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NOES: .
Deloris "Bobbie" Prince, Mayor
ATTEST:
Terri Hanks, City Secretary
APPROVED:
Floyd Batiste, PAEDC CEO
APPROVED A TO FORM:
fir __
Guy N. Goodson, PAEDC Attorney
APPROVED AS TO FORM:
Valecia R. Tizeno, City Attorney
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APPROVED AS TO FORM:
/�it
CITY ATTORNE dr
EXHIBIT "A"
"Laws" mean any current or future federal, state and local laws, statutes, rules,
ordinances, regulations, codes, decisions, interpretations, orders, or decrees of any court or other
governmental authority having jurisdiction that are pertinent to the performance of the Project or
that affect either party's responsibilities or rights under this Agreement.
"Obligations" means all duties of payment, performance, or completion owed by the
Grantee to the Grantor as specified under the Grant Documents and by law, including but not
limited to the obligation to strictly observe and perform all of the provisions of the Grant
Documents, time being of the essence.
"Primary Contract" means the contract between Grantor and its contractors and
subcontractors calling for the installation of the Improvements for the Project.
"Project" means the eligible improvements described in the Application and as further
set forth in the Project Construction Contract attached hereto as Exhibit "C" and made a part
hereof for all purposes. The Project Construction Contract shall describe the Drawings and
Specifications of the eligible Project Improvements.
"Property" means the property owned by Grantor more fully described in Exhibit "D"
attached hereto by reference and incorporated herein for all purposes.
"Project Budget" means the expected costs to construct the Project as included in the
Application and the Drawings and Specifications incorporated within the Project Construction
Contract and approved by the Grantor.
"Project Construction Schedule" means the preliminary schedule of work outlined by
the contractor for Grantee dated July 8, 2010, as more fully described in Exhibit "E" and made a
part hereof for all purposes.
ARTICLE II
TERMS OF THE GRANT AND DISBURSEMENT
Section 2.01. The Grant.
Subject to the further terms and conditions hereof and of any other Grant Documents, and
to the availability of funds for this purpose as determined by Grantor in its sole discretion, the
Grantor agrees to extend the Grant to the Grantee.
Section 2.02. Disbursements.
(a) In General. Subject to the continued compliance by the Grantee with all of the
terms of all of the Grant Documents, the continued satisfaction of all conditions precedent to
disbursing Grant proceeds under this Agreement, the satisfactory review of any reports due
pursuant to Section 3.02(j), and the continued non - existence of a Default or any event,
circumstance, act or omission which with the giving of notice, the passage of time, or both,
would constitute a Default, the Grantor shall tender to the Grantee: (i) a sum not to exceed
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$ as soon as is practicable following the execution of this Agreement (the "Initial
Payment ") and (ii) thereafter all sums shall be paid on a reimbursement basis only.
Reimbursements shall be made monthly as work on the Project accrues and as Improvements
eligible for funding under the Grant are constructed and evidence of completion is set forth in
monthly pay requests executed by Grantor, its architect or engineer and its contractor.
Reimbursements will be processed at the rate of 90% of funds requested for Improvements
eligible for reimbursement with a 10% retained until completion of the work and the receipt by
Grantee gets a Building Permit and Certificate of Occupancy.
(b) Disbursements to the Grantee. All disbursements shall be made directly to the
Grantee by check or wire transfer payable and sent to the Grantee.
(c) Conditions for All Disbursements. The obligation of the Grantor to make any
disbursement of the Grant is subject to the satisfaction of the following conditions as of the date
the disbursement is made:
(i) No representation or warranty of the Grantee contained in this Agreement shall be
or have become materially incorrect or inaccurate.
ii) There shall be no breach, default or event of default (including a Default) under
the terms of any of the Grant Documents, and no event, circumstance, act or
omission shall exist which with the giving of notice, the passage of time, or both,
would constitute breach, default, or event of default (including a Default) under
any of the Grant Documents.
(d) Availability of Funds. Disbursements of Grant proceeds are subject to the
continuing availability of funds for such purpose, and compliance with all applicable Laws.
(e) Upon each disbursement, the Grantee shall be deemed to have issued each of the
representations and warranties contained in this Agreement.
(f) In no event shall the Grantor be obligated to make any disbursement under this
Agreement if a Default has occurred, if the disbursement would cause the amount disbursed in
that year to exceed the annual limit set forth in subsection (a) above, or if the disbursement
would cause the total amount disbursed to exceed the amount of the Grant.
Section 2.03. Conditions Precedent to Initial Disbursement.
(a) Before disbursing any Grant proceeds, Grantee has certified to Grantor and its
legal counsel as specified in Exhibit "F" that Grantee has obtained funding for the Project which
funds shall be certified as the Project Budget and certified by Grantee as sufficient to satisfy its
obligations to Grantor under the Guidelines and sufficient to complete all costs necessary for the
Project to receive a Building Permit and Certificate of Occupancy.
(b) Before disbursing any Grant proceeds, Grantee shall receive from Grantor a copy
of the Primary Contract duly executed by Grantee and its contractor or subcontractors together
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with receipt of all supporting documentation evidencing the agreement for the acquisition,
construction and installation of the Improvements on the Property.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 3.01. Representations and Warranties of the Grantee.
Grantee represents and warrants as follows:
(a) Organization. Grantee is a constituent institution or an institution of the Texas
State University System which is a public agency and instrumentality of the State of Texas.
(b) Due Authorization. Grantee has the full power and authority to enter into this
Agreement and consummate the transaction contemplated by the Grant Documents, to accept the
Grant as contemplated hereby, to execute and deliver all of the Grant Documents to which it is a
party and to comply with the terms set forth in all of the Grant Documents, all of which have
been duly authorized by any and all necessary action of the Grantee. No approval of any other
person or public authority or regulatory body is required as a condition to the validity of any of
the Grant Documents, or, if required, the approval has been obtained.
(e) Validity of Grant Documents. All of the Grant Documents have been properly
executed and will:
(i) Not violate any Laws;
ii) Not violate any provision, or result in a breach, of any document or agreement
binding on the Grantee or affecting its property; and
(iii) Constitute the valid and legally binding obligations of the Grantee, fully
enforceable against the Grantee, in accordance with their terms.
(d) Legal Actions. There is no: (1) claim pending or, to the best of the Grantee's
knowledge threatened, in any court or before any governmental agency; or (2) investigation by
or before any governmental authority, that:
(i) Questions the validity or enforceability of any of the Grant Documents, or any
action taken, or to be taken, under any of them;
(ii) Is likely to result in any material adverse change in the authority, properties,
assets, liabilities, or conditions (financial or otherwise) of the Grantee that would
materially impair the Grantee's ability to perform any of its obligations under all
of the Grant Documents; or
(iii) Affects the Project.
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(e) Grant Document Defaults. There is no event of default (including a Default) on
the part of the Grantee under any of the Grant Documents, and no event has occurred or is
continuing that, with notice, or the passage of time, or both, would constitute an event of default
(including a Default) under any of the Grant Documents.
(f) Compliance With Laws. Upon Grantee's knowledge, information and belief, the
Grantee has complied with all Laws.
(g) Approvals. Grantee has obtained, or expects to obtain prior to the commencement
of the Project, all approvals from and reviews by all Governmental Authorities required by all
Laws applicable to the Project.
(h) Project Budget. The Project Budget sets forth all of the expected costs of, and
sources of funds for, the Project, and has been approved by the Grantor.
(i) Resolution. A resolution has been duly adopted as an official act of the Grantee's
governing body, authorizing the execution and delivery of all of the Grant Documents by the
Grantee and authorizing and directing the person executing the Grant Documents to do so on
behalf of the Grantee.
(j) Taxes. All taxes imposed upon the Grantee and its properties have been paid
prior to the date when any interest or penalty would accrue for nonpayment, except for those
taxes being contested in good faith and by appropriate proceedings.
Section 3.02. Covenants of the Grantee.
The Grantee shall:
(a) Performance. Promptly perform all of its obligations in the manner provided in
the Grant Documents.
(b) Use of Grant Proceeds. Use the Grant for Eligible Project Costs, as set forth in
the Project Budget, and in further compliance with the following: (i) an adjustment in the use of
the Grant within an existing category set forth in the Project Budget shall not require an
amendment to this Agreement if the adjustment is consistent with the purpose of the Grant as set
forth in the Application; (ii) an adjustment in the use of the Grant between existing categories set
forth in the "Budget Overview" section of the Project Budget in an amount not to exceed ten
percent (10 %) of the category from which the Grant proceeds are to be deducted shall not require
an amendment to this Agreement if the adjustment is consistent with the purpose of the Grant as
set forth in the Application; and (iii) no other adjustments to the Project Budget shall be
permitted without the advance written authorization of the Grantor, as evidenced by an
amendment to this Agreement.
(c) Completion. Use its best scientific efforts to cause the Project to be completed by
the Completion Date.
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(d) Existence. Maintain its existence as a constituent institution or an institution of
the Texas State University System.
(e) Compliance with Laws. Comply with all Laws applicable to the Project.
(f) Fair Practices. Certify that it complies with all laws prohibiting discrimination in
employment or otherwise on the basis of political or religious opinion or affiliation, marital
status, sexual orientation, genetic information, race, color, creed or national origin, sex, age, or
the physical or mental disability of a qualified individual with a disability; and will submit to the
Grantor, upon request, information relating to Grantee's operations with regard to political or
religious opinion or affiliation, marital status, sexual orientation, genetic information, physical or
mental disability, race, color, creed, national origin, sex or age, on a form to be prescribed by the
Grantor.
(h) Records. Keep, in accordance with generally accepted accounting principles, any
books, records, and other documents as may be reasonably necessary to fully account for the
amount and disposition of the Grant, the costs incurred to perform the Project, and the source of
all funds expended towards the costs of the Project ( "Project Records "). All Project Records
shall be maintained at the offices of the Grantee, and Grantee shall make Project Records
available to Grantor or its duly authorized representative for inspection, copying, audit and
examination during normal business hours. All Project Records shall be maintained until three
years after discharge of all duties owed to Grantor or longer if required by Grantee's document
retention policies.
(i) Indemnification. Grantee agrees to and shall indemnify and hold harmless
and defend Grantor, its officers, agents, and employees from and against any and all
claims, Losses, damages, causes of action, suits, and liability of every kind, including all
reasonable expenses of litigation, court costs, and reasonable attorney's fees, for injury to
or death of any person, for damage to any property, or its failure to abide by all applicable
environmental laws, rules and regulations arising out of or in connection with Grantee's
operation and construction of improvements contemplated by this Agreement on Grantee's
site.
(j) Project and Financial Reports. During the construction of the Project and
following its substantial completion:
(i) Grantee shall submit to the Grantor any and all information or reports requested to
verify that the Grantee has met all obligations as specified herein. Grantee shall
submit to the Grantor a notarized affidavit stating that all bills for labor, materials,
and incidentals incurred have been paid in full, that any claims from
manufacturers, materialmen and subcontractors have been released, and that there
are no claims pending of which the Grantee has been notified. The submission of
these reports and information shall be the responsibility of Grantee and shall be
signed by the duly authorized representative of Grantee.
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(ii) Grantee shall submit the information and /or reports required herein on or before
the day that is ten days after the earlier of (i) the date of issuance of the Certificate
of Occupancy and the Grantee opens for business; or (ii) the date on which they
are requested by the Grantor. If Grantee fails, within thirty (30) days after receipt
of written notice from the Grantor, to submit the information and /or reports, then
Grantor's obligations.
(iii) All submittals in this Agreement shall be to the Grantor.
(k) Taxes and Claims. Pay all applicable taxes, assessments and claims as they
become due, except for those being contested in good faith by appropriate proceedings.
ARTICLE IV
RELEASE OF CLAIMS
Grantee releases, relinquishes and discharges the Grantor, its officers, agents and
employees from all claims, demands and causes of action of every kind and character, including
the cost of defense thereof, for any injury to or death of, any person (whether they be either of
the parties hereto, their employees or other third parties) and any loss of or damage to property
(whether property of either of the parties hereto, their employees, or of third parties) or their
respective failure to abide by all applicable environmental laws, rules and regulations that is
caused by or alleged to be caused by, arising out of, or in connection with Grantee's operation of
or construction of improvements contemplated by this Agreement on Grantee's site.
By entering into this Agreement, Grantor does not consent to suit, waive its governmental
immunity or the limitations as to damages contained in the Texas Tort Claims Act.
ARTICLE V
CERTIFICATIONS
By signing below, Grantee makes the following certifications:
(a) All information provided in connection with Grantee's Application is true and
correct to the best of Grantee's knowledge.
(b) Any misrepresentation or false statement made by Grantee, or an authorized agent
of Grantee, in connection with Grantee's Application, whether intentional or not, will constitute
grounds for denial of the Application and/or revocation of the Grant.
(c) Grantee does not and will not knowingly employ an undocumented worker who,
at the time of employment, is not lawfully admitted for permanent residence to the United States
or authorized under law to be employed in that manner in the United States. Grantee
understands that if, after receiving a grant, Grantee is convicted of a violation under 8 U.S.C.
§ 1324a(f), Grantee shall repay the amount of the Grant with interest, at the rate and according to
the other terms provided by an agreement under §2264.053 of the Texas Government Code, not
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later than the 120 day after the date of the public agency, state or local taxing jurisdiction, or
economic development corporation notifies Grantee of the violation.
ARTICLE VI
DEFAULT AND REMEDIES
Section 6.01. Defaults.
The following events shall constitute a Default under this Agreement:
(a) Any Grant proceeds are used for any purpose other than Eligible Project Costs.
(b) The Grantee breaches any covenant, representation, warranty or other provision of
this Agreement, which breach is not cured within 30 calendar days from the date of receipt of
written notice (as provided below) of the breach from the Grantor.
(c) The Grantee breaches any covenant, representation, warranty, or other provision
in any other Grant Document, which breach continues beyond any applicable grace or cure
period.
(d) Any statement made in any certificate, report or opinion (including legal
opinions), financial statement, or other document furnished in connection with the Grant was
incorrect in any material respect when made.
(e) The Grantee fails to comply with any requirement imposed by any Governmental
Authority in connection with the Project within 30 days after written notice of the requirement is
made or within any other time period set by the Governmental Authority; or if any proceeding is
commenced or action taken to enforce any remedy for a violation of any requirement of a
Governmental Authority in connection with the Project.
(f) The Project is not completed by the Completion Date as required by this
Agreement.
(g) A permanent or preliminary injunction, excluding an ex parte injunction, is issued
by a court of competent jurisdiction that lasts for more than 90 days and prohibits the Grantee
from carrying out any of its Obligations as set forth herein.
(h) Without the prior written consent of the Grantor, the Grantee is dissolved by
operation of law or in any other manner.
(i) Any court of competent jurisdiction makes a final order: (i) adjudicating the
Grantee a bankrupt, (ii) appointing a trustee or receiver of a substantial part of the property of the
Grantee, (iii) approving a petition for, or affecting an arrangement in, bankruptcy, a
reorganization pursuant to federal bankruptcy law, or any other judicial modification or
alterations of the rights of the Grantor or of creditors of the Grantee, (iv) assuming custody or
sequestering any substantial party of the property of the Grantee; or (v) attaching or garnishing
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any substantial party of the property of the Grantee; or if the Grantee (a) files such petition; (b)
takes or consents to any other actions seeking any such judicial order; (c) makes an assignment
for the benefit of creditors; (d) fails to pay debts generally as they become due; or (e) makes an
admission in writing of inability to pay debts generally as they become due.
Section 6.02. Remedies.
(a) Upon the occurrence of any Default, the Grantor may:
(i) Require the immediate repayment of the entire outstanding amount of the Grant
and immediate payment of any Obligations;
(ii) At any time proceed to protect and enforce all rights and remedies available to the
Grantor under this Agreement or by Law, by any other proceedings, whether for
specific performance of any agreement contained in this Agreement, damages, or
other relief;
(iii) Suspend or terminate the Grantee's authority to receive any undisbursed Grant
proceeds at any time by written notice to the Grantee; and
(iv) Exercise any of its rights and remedies under any of the Grant Documents.
(b) All remedies provided for in this Agreement or by Law are cumulative and are in
addition to any other rights and remedies available to the Grantor under any Law. The exercise
of any right or remedy by the Grantor shall not constitute a cure or waiver of any Default, nor
invalidate any act done pursuant to any notice of Default, nor prejudice the Grantor in the
exercise of those rights.
(c) The failure of the Grantor to insist upon performance of any term of this
Agreement shall not constitute a waiver of any term of this Agreement. No act of the
Grantor shall be construed as an election to proceed under any one provision in this
Agreement to the exclusion of any other provision.
(d) If the Grantor suspends or terminates this Agreement, the rights and remedies
available to the Grantor shall survive the suspension or termination.
(e) In no event shall Grantee's total liability to Grantor be greater than the actual
amount of funds disbursed by Grantor to Grantee for the Project under this Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Notices.
(a) All communications between Grantor and Grantee made pursuant to this
Agreement shall be in writing.
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(b) All communications shall: (1) when mailed, be effective three business days after
deposit in the mails; (2) when sent for next day delivery by a reputable overnight courier service,
be effective one business day after dispatch; and (3) when sent by fax, be effective when faxed
and receipt of the communication is confirmed by a fax receipt. Communications shall be
delivered to the office of the addressee, as follows:
(i) Communications to the Grantor shall be sent to:
City of Port Arthur Section 4A Economic Development Corporation
P.O. Box 3934
Port Arthur, Texas 77642
Attn: Mr. Floyd Batiste
(409) 963 -0579
With a copy to Counsel for the Grantor:
Guy N. Goodson
Germer Gertz, L.L.P.
550 Fannin, Suite 400
Beaumont, Texas 77701
(409) 654 -6730
(ii) Communication to the Grantee shall be mailed to:
Lamar State College -Port Arthur
P.O. Box 310
Port Arthur, Texas 77641
Attn: Sam Monroe
(409) 984 -6100
With a copy to Counsel for Grantee:
(c) The parties may change their notice addresses by sending written notice to the
other parties.
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Section 7.02. Assignment/Delegation.
No benefit inuring to the Grantee under this Agreement may be assigned, and no duty
imposed on the Grantee may be delegated, without the prior written consent of the Grantor.
Section 7.03. Successors Bound.
This Agreement shall inure to the benefit of, and shall be binding upon, each of the
parties and their successors and permitted assigns.
Section 7.04. Severabilitv.
The invalidity of any part of this Agreement shall not affect the validity of the remaining
provisions of this Agreement.
Section 7.05. Entire Agreement.
This Agreement, including any exhibits attached hereto and any subsequent amendments
the parties may execute in accordance with Section 7.06 below, constitutes the entire agreement
between the parties and supersedes all prior oral and and the agree ion ts, representations, and
negotiations between the parties concerning the Grant
Section 7.06. Amendment of Agreement.
This Agreement may be amended only in writing executed by the parties.
Section 7.07. Headings.
The headings used in this Agreement are for convenience only and do not constitute a
part of this Agreement.
Section 7.08. Disclaimer of Relationships.
The Grantee acknowledges that the obligation of the Grantor is limited to making the
Grant on the terms set forth in this Agreement. Nothing in this Agreement, and no act of the
parties or any one or more of them, shall be deemed to create any relationship of third -party
beneficiary, principal agent, al and a ent, limited or general partnership, joint venture, or any other
relationship between the Grantor and the Grantee.
Section 7.09. Governing Law.
This Agreement and any other Grant Documents
hereunder be
the Court t of appropriate
State of Texas, and jurisdiction of any claim
jurisdiction in Jefferson County, Texas.
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Section 7.10. Term of Agreement.
Except as otherwise prov i n this Agreement, unless sooner terminated by the written
consent of the parties this Agreement shall remain in full force and effect from the Effective Date
until all Grantee's obligations under the Agreement have been satisfied.
Section 7. 11. Illegality.
If performance of any Obligation would require the performing party to violate the Law,
then the performance shall be reduced to the level permitted by Law, and if any provision of this
Agreement is determined to be illegal or invalid by a court of competent jurisdiction, then such
provision only shall be void as though not set forth in this Agreement, and the remainder of this
Agreement shall remain in lull force and effect.
Section 7.12. Force Maieure.
Neither party is liable for failure or delay in performing any of its obligations under this
Agreement if the failure or delay is required in order to comply with any governmental
regulation, request or order, or necessitated by other circumstances beyond the reasonable
control of the party so failing or delaying, including but not limited to Acts of God, war
(declared or undeclared), insurrection, fire, flood, accident, labor strikes, work stoppage or
slowdown (whether or not such labor event is within the reasonable control of the parties), or
inability to obtain raw materials, supplies, power or equipment necessary to enable a party to
perform its obligations. Each party will: (a) promptly notify the other party in writing of an
event of force maj eure, the expected duration of the event and its anticipated effect on the ability
of the party to perform its obligations; and (b) make reasonable efforts to remedy the event of
force majeure.
Section 7.13. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be an
original, but all of which, when taken together, shall constitute one document.
IN WITNESS WHEREOF, the Grantor and the Grantee have caused this Agreement to
be executed and delivered as of the date first above written.
[The remainder of this page is intentionally left blank.)
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AGREEMENT EXECUTION
CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
SIGNED AND AGREED TO on the day of , 2010.
By: B y:
President Secretary
Witness Witness
Page ]-1
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LAMAR STATE COLLEGE -PORT ARTHUR
SIGNED AND AGREED TO on the day of , 2010.
By:
Witness
Page 15
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EXHIBIT "A"
' RECEIVED JUL 12 2010
•
Lamar State College -- Port Arthur
A Wain of lit TY+u ttut Ut+.mN u•
June 30, 2010
Mr. Floyd Batiste
Chief Executive Officer
Port Arthur Economic Development Corporation
P.O. Box 3934
Port Arthur, Texas 77642
Dear Floyd:
Enclosed please find an `Operation Downtown Site Improvement Grant Program'
application submitted by Lamar State College -Port Arthur. The college has
received authorization to construct a new building containing 7,500 sq.ft. in the ; —
1400 block of Procter. The building, to be known as the Student Success Center,
will contain classrooms and faculty offices and will be constructed on campus
owned land. This request is for a grant of $250,000 to be in addition to the budget
of $2,191,279 which more than meets your 3 for 1 test of funding. The additional
funds, if approved, would be utilized to bury/re -route utilities, install new street
lighting and landscape the street on Procter between Lake Charles and Augusta
Avenue. Our schedule calls for bidding the project in July of this year with work
to begin shortly thereafter. The anticipated time of completion is May 2011.
If you need more information, please let me know. Meanwhile, please know how
much we appreciate your efforts aimed at improving this part of town.
Sincerely,
—
Sam Monroe
President
/ds
Enclosures
is
is
Office of the Prrs1drnt
P.O. Box 310 • Port Arthur, Texas 77641.0310
Phone 409. 984.6100 • 800. 477.3872 • Fax 409.984 -6032
E-mail Sam.Monroe@lamarpa.edu
I RECEIVED JUL 12 2010
OPERATION DOWNTOWN
Site Improvement Grant Program
Application
APPLICANT INFORMATION
Is the applicant a: Corporation Partnership Proprietorship Individual
' Name of Applicant: d /b /a
Lamar state College -Port Arthur
Mailing Address:
P.O. Box 310, Port Arthur, Texas 77641
Contact Name: sem Monroe Title: President
Telephone: Work Home 409- 984 -6100 Email: sam.Monroe @lamaroa.edu
Type of Business: Education and Training
PROPERTY INFORMATION
The Port Arthur Downtown Revitalization Target Area: see attached map
Street address of property to be improved: 1400 Procter
Legal Description: Lot Block Tax Account No Lots 11 & 12. Bik 154,City of Pt.Arthur
Does the applicant own or lease the property. own
If leasing, please Include copy of lease agreement and letter of approval from
owner.
Is the property currently: occupied x vacant _-_ If vacant, when will
property be occupied (date)
What is the current and proposed use of the property?
Education and training purposes
How many full time employees, If any, does the business currently employ?
178
Do you anticipate hiring additional employees after the proposed Improvements
are complete? Yes No x
If so, how many more?
PROTECT INFORMATION
Description of Site Improvements and related improvements Including
improvements to facade:
The Learning Center oroiect is the construction of a 7,500 sa.ft. building in the
140Q_biock of Procter on the existing canvas. The building will include classrooan
• :.,. : .4 vs: • •• a z !if =.• by The
h.•. • :• - . •,. •u . . $ n :411; as • :: •r . : • the Texas
State University System at their meeting on Friday. February 19, 2010.
Estimated total cost of project: $ 2,191.279.00 (Attach Project Budget form)
Grant funds are available from $50,000 to $250,000 per eligible property.
When does the project need to begin? is-1-2010 Estimated time to complete
(Date)
Gr
Job? 12 months
(# of days)
NOTE: Work must not start prior to contract execution.
Attach:
1. Recent photos of the property (required)
2. Budget and supporting estimates (required)
3. Copy of lease and /or letter from property owner granting approval (If
applicable)
4. Drawings or renderings that convey concept (if available)
5. Paint chips, color board or other samples (if available)
I certify that work has not started nor have I entered Into any contract with any
contractor for work to be covered under this grant application. I also understand
that I will have to sign an agreement with the City of Port Arthur Economic
Development Corporation to be approved by-the City of Port Arthur regarding
this grant award; a maintenance covenant will be filed to insure that the
Improvements will be maintained,
Applicant signature
L Date 6 -30 -10
Applicant printed name sarn Monroe •
B uilding Project Budget
Estimated Construction Cost $ 1,787,747.0
Alternate Proposals $ 94,838.00
Construction Contingency & Escalation $
44,694.00
Sub Total: Fined Limit Construction $ 1,927,279.00 164,000.00
Architect /Engineer 100,000.00
ii Furnishings and Equipment $ 100,$ 2,100, 00
Estimated Total Project
Utility, Lighting, and Landscape Project Budget
Utility Burial /Re -route
$ 120,000.00
Telephone Lines Burial /Re -route $ 11,132.00
Cable Burial /Re -route $ $ 24,882,00
Street Lighting/Landscaping 3 ,98 .0O 6 00
Estimated Total Project $ 29
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EXHIBIT "B
OPERATION DOWNTOWN
A Downtown Improvement Program of the City of Port
Arthur Economic Development Corporation for Site
Improvements and Related Improvements necessary to
promote or develop new or expanded business enterprises
A key element of a revitalization effort is the return of activity to a business
corridor. These first few steps can be the spark to ignite Interest and spur new
business excitement. Operation Downtown provides a catalyst for these first
steps. New site improvements and related Improvements such as fresh paint,
new awnings or complete facade rehabilitation all signal that something positive
is happening. Operation Downtown is a conditional grant program available for
site improvements and related Improvements to business buildings located in
Port Arthur Downtown Revitalization target areas (see attached map for target
area boundaries). Projects will be granted up to $250,000 to be matched by
private or other source funds. For every three dollars of Investment by private
source funds into an Operation Downtown project Port Arthur Economic
Development Corporation (PAEDC) will invest one dollar, not to exceed $250,000
of public dollar investment.
The purpose of Operation Downtown is to promote or
develop new or expanded business enterprises in the
designated downtown area as per the proposition approved
by the voters in the May 2009 Special Election for site
improvements and related improvements necessary to
promote or develop new or expanded business enterprises
which will also do the following:
• Reverse the deterioration of business structures in the targeted areas.
• Enhance efforts to market vacant space and attract new businesses.
• Stimulate new, private investment and economic growth.
• Promote consistency in design and create a fresh and aesthetically pleasing
environment.
• Assist property owners with the appropriate exterior rehabilitation of their
buildings and bring them up to code.
• Reduce the perception of crime.
• Invest in historic preservation and rehabilitation.
1
This package contains other documents detailing the application process and
information to assist you in completing the application. The package includes:
o This cover letter
o Basic Procedures and list of eligible projects
o Blank Application
o Map
For more information, contact:
Port Arthur Downtown Revitalization Program
4173 39 Street
Port Arthur, TX 77642
409- 963 -0579
ELIGIBLE PROJECTS
Project Description
A conditional loan forgivable over five years may be provided to owners of
eligible properties to undertake site improvements and related Improvements
which can include comprehensive exterior repair and facade upgrades or
renovations, and infrastructure improvements including sidewalk repairs and
landscaping in and adjacent to the public right -of -way. Conditional loan will be
forgiven over a three year period at a rate of one third per year that the property
is occupied, upon approval by the Board of Directors of PAEDC. The conditional
loan assistance is provided to the property owner on a reimbursement basis as
the renovation project progresses. All conditional loans shall be secured by
private sector matching investment of three to one dollar from the property
owner or a financial institution. The conditional loan shall be secured by a
mortgage on the improved real estate.
Eligible Properties
Applications may be submitted for business properties, either owner or tenant
{ occupied within the Port Arthur Downtown Revitalization target areas. Owners of
vacant buildings are encouraged to apply and Improve property as a catalyst for
future occupancy. Mixed use buildings with retail /commercial in the storefront
are also encouraged.
Non Eligible Properties
Properties used primarily as residences are not eligible for Operation Downtown.
Eligible Applicants
Business property and business owners located in eligible areas may apply for
assistance. Tenants must have a signed lease and the property owner's approval.
The City Council of the City of Port Arthur may also apply for assistance.
Exceptions
The Port Arthur City Council and the PAEDC Board of Directors are each allowed a one time grant
with no match up to $250,000 to be used within the three year period of the Program dependent
on availability of funds.
Eligible Improvements
Operation Downtown will fund site improvement and related improvement
projects. All improvements must be permanent or fixed. Eligible improvements
may include, but are not limited to:
• complete facade and site rehabilitation;
• replacement of broken window panes, aluminum or wood windows and
broken store front glass;
• scraping, priming, and painting of window frames, cornice and store front;
• painting of brick facade and sites where brick has been previously
painted;
• repair or replace deteriorating signage and brackets when attached to the
building;
• repair or replace missing or broken tile;
• repair or replace worn awnings or canopies;
• removal of metal slipcovers to expose original materials;
• certain types of security elements or security recommendations;
• rehabilitation of the upper facade and site and display areas or side walls
of a building may also be eligible if street level improvements are
approved;
• roof repair when incidental to overall facade and site improvements.
• Restore old historical facades
• Other site improvements as authorized by the proposition approved by the
voters in the May 2009 Special Election
Other minor repairs when incidental to overall facade improvements such as:
✓ exterior lighting;
✓ certain types of security elements or security recommendations;
✓ roof repair;
✓ repair of sidewalk, ADA accessibility;
✓ detached signage;
✓ new construction;
✓ parking lots;
✓ landscaping;
✓ other improvements as approved by the EDC
In addition, professional, architectural, and City permit fees may be included in
the total improvement costs.
Ineligible Improvements
The following improvements are not eligible for funding:
■ burglar bars;
■ fencing;
BASIC PROCEDURE
Step 1 - Applicant Eligibility
• Business or property owners are eligible to apply for Operation Downtown
funds If the business is 1 - located within a Port Arthur Downtown
Revitalization target area; and 2 - utilized primarily for business purpose
(this does NOT include residences or apartments).
D For information for Port Arthur Downtown Revitalization target area
boundaries see map included herein or contact the Operation Downtown
Coordinator or Port Arthur Downtown Revitalization Coordinator or the
EDC CEO.
D If needed, a meeting at the site with the applicant, their contractor and
Port Arthur Downtown Revitalization staff can be arranged to discuss the
application process, area design guidelines and /or to develop a
preliminary design concept.
Step 2 — Complete The Application
• The application (enclosed herein) is to be completed by the applicant
(business owner, property owner or tenant). A completed application must
contain information for all three parts: applicant information, property
information and project Information. Incomplete applications may result in
delays in processing.
• Design assistance or preliminary project discussion meetings may be
arranged if the applicant is uncertain what improvements are needed or
would like suggestion. Inquires may be made to the Operation Downtown
Coordinator at 409 - 963 -0579.
• A completed application should be submitted to:
Port Arthur Downtown Revitalization Program
Port Arthur Economic Development Corporation
ATTN: Floyd Batiste, CEO
4173 39 Street, Port Arthur, TX 77642
➢ Once an application Is received, the Operation Downtown Coordinator will
confirm eligibility of the site and the proposed scope of work, notify the
applicant that the application has been received and Is under review, and
arrange a Project Review meeting.
• Projects that are eligible for funding will be considered on a first come,
first served basis. There is no deadline; applications are accepted year
round. However, projects may be limited due to budget constraints and
funding availability. All approved projects must be completed within 18
months of contract date.
Step 3 - Project Review & Contract Execution
• A Project Review meeting is required to be conducted prior to contract
execution and construction beginning.
> A Design Review Team (Sub committee from PAEDC Board) will conduct
the Project Review meeting with the applicant to review the application. A
site visit may also be helpful but is not required.
➢ The Design Review Team will discuss the merits of the project and form a
recommendation to either fund the project, or require the applicant to
make changes and re- submit.
*- The Design Review Team recommendation is presented to the PAEDC
Board of Directors.
➢ If the recommendation is accepted by the EDC Board of Directors, the
Design Review Team recommendation will be presented to the applicant
to accept or withdraw.
• If approved, a Grant Agreement (contract) will be prepared by the EDC
and affiliated attorneys or by the City Attorney and then forwarded to the
EDC Board of Directors and to the City Council for approval
• The applicant and the EDC will sign the Grant Agreement. A fully executed
Grant Agreement will be returned to the applicant. An Affirmative
Covenant of Maintenance document is also signed and filed with the
County Clerk's Office. Start of the construction prior to the date of
contract signing will void the grant.
Step 4 — Construction
> A Pre - Construction Meeting will be held to go over construction scope of
work, change orders, as well as other procedures. This meeting will
usually be held on site, prior to construction but after the contract is
signed. It is helpful If the applicants as well as contractors are present.
• If the Improvements require a building permit, or approval from the Texas
Historic Design and Review Commission, the applicant must comply. The
City of Port Arthur Planning staff may be able to assist in the process on
the applicant's behalf.
• A Sub committee from Board or City staff may monitor the progress and
make periodic inspections during the project.
Step 5 — Reimbursement
Funds will be provided on a reimbursement basis ONLY.
• Reimbursement will be processed at 90% rate with 10% retained until
completion of the work.
➢ Applicant will contact the PAEDC or City staff to conduct a final inspection.
If all parties are satisfied with the work, the PAEDC and applicant will sign
off on completion of the improvement.
➢ The applicant will complete the Project Completion form and submit it
along with copies of invoices, canceled checks, asking for final
reimbursement of applicable costs.
➢ When all work and documentation is received, the PAEDC staff will
request payment. A final check will be sent to the applicant.
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3
Downtown Revitalization Target Area Map
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• Va< it it 'Cry i .
The boundaries of the Downtown Revitalization Target area are Lakeshore Drive to the
south, Houston Avenue to the west, 9 Street to the north and Lake Charles Avenue to the
East. Properties on both sides of the right -of -way of the boundary roads will be considered
for Operation Downtown funding.
OPERATION DOWNTOWN
Site Improvement Grant Program
Application
APPLICANT INFORMATION
Is the applicant a: Corporation Partnership Proprietorship Individual
Name of Applicant: d /b /a
Mailing Address:
Contact Name: Title:
Telephone: Work Home Email:
Type of Business:
PROPERTY INFORMATION
The Port Arthur Downtown Revitalization Target Area:
Street address of property to be Improved:
Legal Description: Lot Block Tax Account No
Does the applicant own or lease the property.
If leasing, please include copy of lease agreement and letter of approval from
owner.
Is the property currently: occupied vacant — if vacant, when will
property be occupied (date)
What is the current and proposed use of the property?
How many full time employees, if any, does the business currently employ?
Do you anticipate hiring additional employees after the proposed improvements
are complete? Yes No
If so, how many more?
PROJECT INFORMATION
Description of Site Improvements and related improvements including
improvements to facade:
Estimated total cost of project: $ (Attach Project Budget form)
Grant funds are available up to $250,000 per eligible property.
When does the project need to begin? Estimated time to complete
(Date)
job?
(# of days)
NOTE: Work must not start prior to contract execution.
Attach:
1. Recent photos of the property (required)
2. Budget and supporting estimates (required)
3. Copy of lease and /or letter from property owner granting approval or copy
of warranty deed (if applicable)
4. Proof of funds for 75% of the total cost of the project (required)
5. Drawings or renderings that convey concept (if available)
6. Paint chips, color board or other samples (if available)
I certify that work has not started nor have I entered into any contract with any
contractor for work to be covered under this grant application. I also understand
that I will have to sign an agreement with the Clty of Port Arthur Economic
Development Corporation to be approved by-the City of Port Arthur regarding
this grant award; a maintenance covenant will be filed to insure that the
improvements will be maintained.
Applicant signature Date
Applicant printed name
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EXHIBIT "C"
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THE TEXAS STATE UNIVERSITY SYSTEM
• <6'7/ • k . 1P 1:), . . FoUnded 1911 . •
. -4-- - ;4 I ---------—.------ . , • . . . .
(
V" . tet • Thomas J. 'Rusk Building • 200 East 10 Street, Sitite 600 • Austin, Texas 78701-2407
- •1! '..tti
• (512) 463-1808 • Fax (512) 463-1816 • want.tsus.edu .
- . .
-
Ren(VIB UPS &angel • • •
REGENTS • • .
Ron Blatebley
• August:19, .2010 • • • • •
• - Bryant College Station, Chairman
. . . . . . .
Cher& Aasato ' Mn James Shell, President ' • • •
.5W1 MO , * . Wee Chalrrnan .
SeTex ConStrUction Corporation - . • • - .
. Eon ;Air • .
P.„ ox C1 ll 20678 ... .. • • • • . ' • •
. • frk.n. . •
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. • • .
Beaumont, TX • 77720 . . . • : ••• . ':
• Roo Mitchell
. I Harreattoe Birg
. . • • . •
. .. . . • . ' . .
• :
Re : . • • Contract Between Owner and General Contractor
. David Montaigne • . . . ..
Beaumont Project: The/slew' Learning Center . - • . . .
..•
- Trfili a Pollard LOCAO0n: Lartar State College- Port Arthur . . -
& . .
W . ire • . . •
• • . •
. . . . . . •
. . . . .
. . . . . . . . •
Michael llimeale • . ' . Dea*Mr. Shin: .. : :. . • . .. • . • ••• . • . • . .. ' .• • • • - . •
• 41.4.0 ..
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Deaf= . —area .. - • .. - • - • . .
' • .
. • Minium • ' • . - Pleiii!C find enclosed one (1) fillii-Oiciicuted copy of the contract Between • •.
'
• Christopher Cove Owner arid OrneralContiactoi for you:11 . • ' ' - .
San Marcos, Shalom Reply •
CHANCIILLOR Sincerely, . •
. .
. •
Brian McCall . • • •
. • . • •
Bugle . • .
. •
. . .
- ,, ,; / • , e jOY/1"
SiSTIVA telentERS Donna 0. 'yens • , • • • . . .
•
Latest Italveratty . - .
Beaumont /dg • . .• .
si.R.Lidon Elute University • • •
. •
.
,
Huntollie cc: Mr. Stephen Arnold, Lamar State College — Port Arthur •
_
Wm Rouston State Unfelt-city .
The kadland• .
. • .
. .
Set Roo StaW Un1versity • .
ttiPtal . • •
• • • •
.
Sul Stew State tiolvertIty • - •
We Crla. Ceteg.
. . .
• Dei Rio. &tile Pam, Uvalde
Tau State Untveretty-San Mama
Son Moreoa
. • . .
NUJ Slate UtIversity-itRIISC
Round Rock •
•
Law tattltute et ilerhactiogy • . •
Beaumont . ..
. .
• Lerner State College-0 range • ' • • • • • . .
Orange • . .
. . .
Earnar Slate CeTtege A rater
. Pori Arthur •
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Commercial
S pTEX Municipal
CONSTRUCTION
CORP.
August 10, 2010
Ms. Donna Givens
Assistant to Vice Chancellor for Contract Administration
The Texas State University System
Thomas J. Rusk Building
2000 East 10 Street, Suite 600
Austin, TX 78701 -2407
Project: New Learning Center — Lamar State College Port Arthur
Protect No. 09016
Subject: "Notice to Proceed and Contract Documents"
Dear Donna:
In respect to the above referenced project find the below listed and attached documents.
Enclosures:
1. One (1) fully executed "Notice to Proceed" dated August 6, 2010.
2. Three (3) signed originals of "Contract Between Owner and Contractor ".
Please return one (1) fully executed copy of Contract back to our office for our files.
We trust the above meets with your approval and we look forward to a successful project.
Yours very truly,
SeTEX nstruction Corp.
m
•
ames R. Shell
President
sld
cc: Job / File •
Steve Amold / LSCPA
Greg Wall / LaBiche
{
21001- Notice to Proceed
1 P.O. BOX 20678 • BEAUMONT. TX 77720.0678 • OFFICE: (409) 8424181 • FAX: (409) 842 -2274
•
CONTRACT
BETWEEN OWNER AND C NTRACTOR
•
i -
This Contract is made as of July 30, 2010 the "Effective Date "), by and between:
The Owner The Board of Regents of the Texas State University System
? c/o Peter E. Graves, Vice Chancellor for Contract Administration
Texas State University System
Thomas J. Rusk Building, Suite 600
200 East 10 Street
Austin, TX 78701.2407
512-463-1808
and Contractor: SeTEX Construction Corp.
P. O. Box 20678
Beaumont, Texas 77720 -0678
(409) 8424181
for the Project: The New Learning Center
Lamar State College --Port Arthur
Project Architect/Engineer (AIE): The LaBiche Architectural Group, Inc.
7999 Gladys, Suite 101
Beaumont, Texas 77706
ARTICLE 1 CONTRACT DOCUMENTS
• 1.1 The Contract Documents consist of:
a. This Contract and all exhibits and attachments listed, contained or referenced in this Contract;
b. The referenced 2005 version of the Uniform General Conditions for Construction Contracts
as published by the Texas Building and Procurement Commission ("Uniform General
Conditions" or "UGC ");
c. Owner's Division 1 Specifications;
d. The Drawings, Specifications, details and other documents developed by Architect/Engineer
(A/E) and issued for construction with the Owner's approval;
e. The Drawings and Specifications developed and issued for construction with the Owner's
approval by Owner's other consultants, If any
f. All Addenda issued prior to the Effective Date of this Contract;
g. All other Change Orders issued after the Effective Date of this Contract; and
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1 LSCPA - The New Learning Center Page 1 of 10
7
h. The HUB Subcontracting plan submitted by the Contractor in response to the Request for
Proposals issued by the Owner for this Project.
• 1,2 The term "Construction Manager (CM)" is interchangeable with the terms "Contractor" and
"General Contractor" or other similar terms used in the various parts of these Contract
Documents.
•
ARTICLE 2 SCOPE OF WORK
2.1 The Contractor shall furnish all of the materials and perform all of the work shown on the drawings
and described in the specifications for the project and the Uniform General Conditions for
Construction Contracts entitled The New Learning Center. These drawings and specifications are
prepared for the Texas State University System by The LaBiche Architectural Group, Inc. acting as
the Architect/Engineer. The Contractor shall do everything required by this Contract (UGC), the
Addenda, Owner's Division 1 Specifications, the Technical Specifications, the Drawings, any
Change Orders issued for this Contract and the Historically Underutilized Business (HUB)
Subcontracting Plan submitted by the Contractor and approved by the Owner.
2,2 ALTERNATES: The Alternate Proposal "Add Copper Roof for $150,000," firl[y described in the
Specifications, is included as a part of this Contract.
ARTICLE 3 TIME OF COMPLETION
The Owner shall provide a Notice to Proceed in which a date for commencement of the Work shall be
stated. The Contractor shall achieve Substantial Completion (UGC Article 12) of the Work within Three
Hundred Eight (308) calendar drys after such Commencement Date. The time set forth for completion of
the work is an essential element of the Contract.
•
ARTICLE 4 THE CONTRACT SUM
The Owner shall pay the Contractor for performance of the Contract the sum of: One Million Nine
Hundred Thoxsand ($1,900,000), and make payments as provided in UGC Article 10 and the Division 1
Specifications.
A 5% retainage fee is established through this Contract between the Contractor and the Owner and a
subsequent maximum 5%retainage fee shall be established between the Contractor and any subcontraotor(s)
who performs work or provides materials for this Project,
ARTICLE 5 LIQUIDATED DAMAGES
•
Time needed for completion is an important factor in this Contract. The Contractor agrees to perform its
services under this Contract in an expeditious and economical manner consistent with good business practices
and the interests of Owner. For each consecutive calendar day after the Substantial Completion date,
computed using the Commencement Date and the Time for Substantial Completion described in Article 3,
that any of the Work is not completed the amount of Three Hundred Dollars (S300.00). will be deducted
from any money due the Contractor. Any sum so deducted will not be as a penalty but will be as
•
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LSCPA - The New Learning Center
•
Liquidated Damages that the parties have agreed to be a reasonable estimate of actual Owner damages due
to late completion.
•
ARTICLE 6 HUB SUBCONTRACTING PLAN
The Owner has adopted Exhibit H, Policy. on Utilization of Historically Underutilized Business ( "Policy "),
which is incorporated herein by reference. Contractor, as a provision of the Contract must comply with the
requirements of the Policy and adhere to the HUB Subcontracting Plan submitted with Contractor's
Proposal. No changes to the HUB Subcontracting Plan can be made by the Contractor without the prior
written approval of the Owner in accordance with the Policy.
ARTICLE 7 SAFETY
7,1 In accordance with UGCs and the Division 1 Specifications, Contractor is responsible for initiating,
maintaining, and supervising all safety precautions and programs in connection with the Work. The
safety program shall comply with all applicable requirements of the Occupational Safety and Health
Act of 1970 and all other applicable federal, state and local laws and regulations and with the
requirements of Owner's project safety specification.
7.2 Contractor shall provide recommendations and information to Owner regarding the assignment of
responsibilities for safety precautions and programs, temporary Project facilities, and equipment,
materials, and services for common use of the Subcontractors. Contractor shall verify that
appropriate safety precautions and provisions have been included in the Construction Documents,
o of any Owner controlled insurance
7.3 The existence or creation o ny program in connection with the Work
shall not lessen or reduce the Contractor's safety responsibilities.
•
ARTICLE 8 CERTIFICATION OF NO ASBESTOS CONTAINING MATERIALS OR WORK
8.1 The Contractor shall provide a certification statement, included with each materials submittal,
stating that no asbestos containing materials or work is included within the scope of the proposed
submittal.
8.2 The Contractor shall insure that Texas Department of Health Licensed individuals, consultants or
companies are used for any required asbestos work including asbestos inspection, asbestos
abatement planslspeciflcations, asbestos abatement, asbestos project management and third -party
asbestos monitoring.
8.3 The Contractor shall take whatever measures he deems necessary to insure that all employees,
suppliers, fabricators, material men, subcontractors, or their assigns, comply with this
requirement.
8.4 All materials used on this Project shall be certified as not Asbestos Containing Building Materials
(ACBM). The Contractor shall insure compliance with the following acts from all of his
subcontractors and assigns:
8.4.1 Asbestos Hazard Emergency Response Act (AHERA -40 CFR 763 - 99 (7));
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LSCPA - The New Learning Center Page 3 of 10
8.4.2 National Emission Standards for Hazardous Air Pollutants (NESHAP —EPA 40 CFR 61,
National Emission Standard for Asbestos;
8.4.3 Texas Asbestos Health Protection Rules (TAHRP Tex. Admin. Code Title 25, Part 1,
Ch. 295C, Asbestos Health Protection
8.5 The Contractor shall provide at Substantial Completion, a notarized affidavit to the Owner stating
that no asbestos containing materials or work was provided, installed, furnished or added to the
Project.
• 8.6 The Contractor shall provide, in hard copy and electronic form, all necessary material safety data
sheets (MSDS) of all products used in the construction of the Project to the Texas Department of
Health licensed inspector.
8.7 At Final Completion the Contractor shall provide a notarized certification statement per TAC
Title 25 Part 1, Chapter 295,34, paragraph c.1 that no ACBM was used during construction of the
Project. Prior to issuing this certification, the Contractor shall cause every subcontractor to
provide a notarized statement that no ACBM has been used, provided, or left on this Project.
ARTICLE 9 PRE - EXISTING CONDITIONS •
The Contractor acknowledges that it has been provided unrestricted access to the existing improvements and
• conditions on the Project site prior to signing this contract and that it has thoroughly investigated those
conditions. Contractor shall not make or be entitled to any claim for any adjustment to the Contract Sum or
the Contract Time for Completion arising from Project conditions that Contractor discovered or, in the
exercise of reasonable care, should have discovered in Contractor's investigation.
ARTICLE 10 BONDS AND INSURANCE
10.1 The Contractor shall provide performance and payment bonds on forms prescribed by Owner and
in accordance with the requirements set forth in the UGCa (Article 5). The penal sum of the
• payment and performance bonds shall be equal to the Contract Sum.
10.2 The Contractor shall not commence work under the Contract until it has obtained all required
insurance and until evidence of the required insurance has been reviewed and approved by the
Owner's Designated Representative (see UGC 3.1.2 and 013100, paragraph 2). Contractor shall
provide evidence of the insurance coverage for Workers' Compensation, Employer's Liability,
Comprehensive General Liability, Builder's Risk and Comprehensive Automobile Liability in the
amounts as set forth in the UGCs. All of this required coverage shall remain in full force and
effect throughout the term of the Project and shall be increased as necessary for each separate bid
package, phase, change order, or Stage of construction prior to the commencement of
construction for that package, phase, or Stage. Owner's review of the evidence of insurance
provided by the Contractor shall not relieve nor decrease the liability of the Contractor,
10.3 The Contractor shall not cause or allow any of its required insurance to lapse or be canceled
during the term of the Contract or as otherwise required in the Contract. If the Contractor fails to
i -
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LSCPA - The New Learning Center
obtain, maintain or renew any insurance required by the Contract, the Owner may obtain
insurance coverage directly and recover the cost of that insurance from the Contractor.
10.4 The Owner reserves the right to reevaluate the Insurance requirements during the effective period
of the Contract and to make reasonable adjustments to the insurance coverages and their Limits
when deemed necessary and prudent by the Owner based upon changes in statutory taw, court
decisions, or the claims history of the industry as well as the Contractor. Such changes will be
incorporated into this Contract by Change Order.
10.5 The Owner shall be entitled, upon request, and without expense, to receive complete copies of the
policies with all endorsements and may make any reasonable requests for deletion, or revision or
modification of particular policy terms, conditions, limitations, or exclusions, except where
policy provisions are established by law or regulation binding upon the Parties or the underwriter
of any of such polices. Damages caused by the Contractor and not covered by insurance shall be
paid by the Contractor.
ARTICLE 11 SPECIAL WARRANTIES
11.1 Notwithstanding anything to the contrary contained in this Contract, Owner and Contractor agree and
acknowledge that Owner is entering into this Contract in reliance on Contractor's represented
{ expertise and ability to provide construction services. Contractor agrees to use its best efforts, skill,
judgment, and abilities to perform its obligations and to further the interests of Owner in accordance
with Owner's requirements and procedures.
11.2 The Contractor represents, and agrees that it will perform its services in accordance with the usual and
customary standards of Contractor's profession or business and in compliance with all applicable
national, federal, state, municipal, laws, regulations, codes, ordinances, orders and with those of any
other body having jurisdiction over the Project. Contractor agrees to bear the full cost of correcting
Contractor's negligent or improper work and services, those of its subcontractors, and any harm
caused by the negligent or improper work or services.
11.3 The Contractor's duties shall not be diminished by any approval by Owner nor shall the Contractor
be released from any liability by any approval by Owner, it being understood that the Owner is
ultimately relying upon the Contractor's skill and knowledge in performing the services required
hereunder.
11.4 The Contractor represents and agrees that all persons who are directly in charge of Contractor Work
or Services that require registration or licenses under the laws, rules and regulations of any authority
having jurisdiction over the Project are duly registered or licensed as required.
11,5 The Contractor agrees to advise Owner of anything of any nature in any drawings, specifications,
plans, sketches, instructions, information, requirements, procederes, and other data supplied to the
Contractor under the provisions of this Contract that the Contractor considers unsuitable, improper,
or inaccurate for the purposes intended.
11.6 Contractor represents and agrees that there are no obligations, commitments, or impediments of any
kind that will limit or prevent performance of its obligations under this Contract.
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LSCPA - The New Learning Center Page 5 of 10
11.7 Contractor represents and agrees that the individual executing this Contract on behalf of Contractor
has been duly authorized to net for and to bind Contractor to its terms.
11.8 Except for the obligation of Owner to pay Contractor certain fees, costs, and expenses pursuant to the .
terms of this Contract, Owner shall have no liability to Contractor or to anyone claiming through or
under Contractor by reason of the execution or performance of this Contract. Notwithstanding any
obligation or liability of Owner to Contractor, no present or future partner or affiliate of Owner or
any agent, officer, director, employee, or regent of Owner, the Texas State University System, or of
the component institutions comprising Texas State University System, or anyone claiming to be
affiliated with Owner has Cr shall have any personal liability to Contractor or to anyone claiming
through or under Contractor by reason of the execution or performance of this Contract.
ARTICLE 12 INDEMNITY
12.1 SBB ARTICLE 3 OP THE UNIFORM GENERAL CONDITIONS FOR CONSTRUCTION •
CONTRACTS FOR CONTRACTOR'S GENERAL INDEMNIFICATION OBLIGATIONS.
12.2 CONTRACTOR SHALL PROTECT AND INDEMNIFY TIM OWNER FROM AND AGAINST ALL CLAIMS
DAMAGES, JUDGMENTS AND LOSSES ARISING FROM INFRINGEMENT OR ALLEGED INFRINGEMENT OP
ANY UNITED STATES PATENT OR COPYRIGHT THAT ARISE OUT OF ANY OF THE WORK PERFORMED BY
THE CONTRACTOR OR THE USE BY CONTRACTOR, OR BY OWNER AT THE DIRECTION OF
CONTRACTOR, OF ANY ARTICLE OR MATERIAL. UPON BECOMING AWARB OF A SUIT OR THREAT OF
SUIT FOR PATENT OR COPYRIGHT INFRINGEMENT, OWNER SHALL PROMPTLY NOTIFY CONTRACTOR
AND CONTRACTOR SHALL BE GIVEN FULL OPPORTUNITY TO NEGOTIATE A SETTLEMENT.
CONTRACTOR DOES NOT WARRANT AOAINST INFRINGEMENT BY REASON OF OWNER'S OR A/E'S
DESIGN OF ARTICLES OR THEIR USE IN COMBINATION WITH OThBR MATERIALS OR IN THE OPERATION
OF ANY PROCESS. IN THE EVENT OP LITIGATION, OWNER AORBES TO COOPERATE REASONABLY
WITH CONTRACTOR AND PARTIES SHALL BE ENTITLED, TN CONNECTION WITH ANY SUCH LITIGATION,
TO BE REPRESENTED BY COUNSEL AT THEIR OWN EXPENSE.
12.3 The indemnities contained herein shall survive the termination of this Contract for any reason
whatsoever.
• ARTICLE 13 PARTY REPRESENTATIVES
13.1 The Owner's Designated Representative (see UGC 3.1.2 and 013100, paragraph 2) authorized to act
in the Owner's behalf to change the scope,, cost, completion time or to represent the Owner in any
disputes of the Project is;
Peter E. Graves, Vice Chancellor for Contract Administration
Texas State University System
Thomas Rusk Building, Suite 600
200 East 10th Street
Austin, TX 78701 -2407
512-463-1808
peter:graves @tsus.edu
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LSCPA - The New Learning Center
•
•
13.2 The Owner's Designated Site Representative (see 013100, paragraph 2) authorized to act in the
Owner's behalf with respect to all other aspects of the Project other than those listed in 13.1, and
to approve single construction contract change order(s) Tess than $25,000.00. is:
Mr. Steve Arnold
Director of Physical Plant
Lamar State College -Port Arthur
1848 Procter Street
Port Arthur, Texas 77641
Phone: (409) 984 -6250
atephen.arnold@lamarpa.edu
13.3 The Contractor's designated representative authorized to act on the Contractor's behalf and bind the
Contractor with respect to the Project Is:
James R. Shell
President
SeTEX Construction Corp.
1660 S. 23 Street
Beaumont, Texas 77707
Phone: (409) 842-8181
setexcc @sbcgtobal.ne(
13.4 The parties may make reasonable changes in their designated representatives upon advance written
notice to the other party.
ARTICLE 14 NOTICES
Notices of claims or disputes or other legal notices required by this Contract shall be sent to the following
persons at the indicated locations.
If to Owner: Peter E. Graves
Vice Chancellor for Contract Administration
Texas State University System •
Thomas Rusk Building, Suite 600
200 East 10th Street
Austin, TX 78701-2407
Phone: (512) 463 -1808
peter.graves @tsus.edu
With Copies to: Mr. Steve Arnold
Director of Physical Plant
Lamar State College -Port Arthur
1848 Procter Street
Port Arthur, Texas 77641
Phone: (409) 984-6250
• stephen.arnold @tamarpa.edu
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•
If to Contractor: James R. Shelf
President
SeTEX Construction Corp.
} 1660 S. 23' Street
Beaumont, Texas 77707
Phone: (409) 842-8181
setexcc@sbcglobal.net
•
The parties may make reasonable changes in the person or place designated for receipt of notices upon
advance written notice to the other party.
ARTICLE 15 MISCELLANEOUS PROVISIONS
•
15.1 Assignment. This Contract is a personal service contract for the services of Contractor, and
Contractor's interest in this Contract, duties hereunder and/or fees due hereunder may not be
assigned or delegated to a third party.
15.2 Recordke,eping. Records of expenses pertaining to Additional Services and services performed on
the basis of a Worker Wage Rate or Monthly Salary Rate shall be kept on the basis of generally
accepted accounting principles and in accordance with cost accounting standards promulgated by
the Federal Office of Management and Budget Cost Accounting Standards Board and shall be
available for audit by the Owner or the Owner's authorized representative on reasonable notice.
15.3 Family Code Child Support Certification. Pursuant to Section 231.006, Texas Family Code, Service
Provider certifies that it is not ineligible to receive the award of or payments under this Contract and
acknowledges that this Contract may be terminated and payment may be withheld if this certification
is inaccurate.
15.4 Eligibility Certification. Pursuant to Section 2155.004, Texas Government Code, Service Provider
certifies that the individual or business entity named in this Contract is not ineligible to receive the
award of or payments under this Contract and acknowledges that this Contract may be terminated
and payment withheld if this certification is inaccurate.
15.5 Franchise Tax Certification. A corporate or limited liability company Contractor certifies that it
is not currently delinquent in the payment of any Franchise Taxes due under Chapter 171 of the
Texas Tax Code, or that the corporation or Limited liability company is exempt from the payment
of such taxes, or that the corporation or limited liability company is an out -of -state corporation or
limited liability company that Is not subject to the Texas Franchise Tax, whichever is applicable.
15.6 Payment of Debt or Delinquency to the State. Pursuant to Sections 2107.008 and 2252.903, Texas
Government Code, Contractor agrees that any payments owing to Contractor under this Contract .
may be applied directly toward any debt or delinquency that Contractor owes the State of Texas or
any agency of the State of Texas regardless of when it arises, until such debt or delinquency is paid
in full.
15,7 Entire Contract; Modifications. This Contract supersedes all prior contracts, wrinen or oral,
between Contractor and Owner and shall constitute the entire Contract and understanding
between the parties with respect to the Project. This Contract and each of its provisions shall be
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LSCPA - The New Learning Center
binding upon the parties and may not be waived, modified, amended or altered except by a
writing signed by Contractor and Owner.
15.8 Captions. The captions of paragraphs in this Contract are for convenience only and shall not be
considered or referred to in resolving questions of interpretation or construction.
15.9 Governing Law and Venue. This Contract and all of the rights and obligations of the parties and
all of the terms and conditions shall be construed, interpreted and applied in accordance with and
governed by and enforced under the laws of the State of Texas without reference to its conflicts
of law provisions. The county where the Project is located shall be the sole place of venue for
any legal action arising from or related to this Contract or the Protect In which the Owner is a
party. This supersedes any interpretation otherwise of UGC Section 2.3.
15.10 Waivers. No delay or omission by either party in exercising any right or power arising from
non- compliance or failure of performance by the other party with any of the provisions of this
Contract shall impair or constitute a waiver of any such right or powet. A waiver by either party
of any covenant or condition of this Contract shall not be construed as a waiver of any subsequent
breach of that or of any other covenant or condition of the Contract. Nothing in this Contract
shall be construed to waive the constitutional, statutory, or common law rights or immunities of
either party to this Contract.
15.11 Binding Effect.. This Contract shall be binding upon and inure to the benefit of the parties and
their respective permitted assigns and successors.
15.12 Appointment. Owner hereby expressly reserves the right from time to time to designate by notice
to Contractor a representative(s) to act partially or wholly for Owner in connection with the
performance of Owner's obligations. Contractor shalt act only upon instructions from the
designated representative(s) unless otherwise specifically notified to the contrary.
15.13 Records. Records of Contractor's costs, reimbursable expenses pertaining to the Project and
payments shall be available to Owner or its authorized representative during business hours and
shall be retained for four (4) years after final Payment or abandonment of the Project, unless
Owner otherwise instructs Contractor in writing.
15.14 Notices. All notices, consents, approvals, demands. requests or other communications relied on by
the parties shall be in writing. Written notice shall be deemed to have been given when delivered in
person to the designated representative of the Contractor or Owner for whom it is intended; or sent
by U. S. Mail to the last known business address of the designated representative; or transmitted by
fax machine to the last k now business fax number of the designated representative. Mail notices are
deemed effective upon receipt or on the third business day after the date of mailing, whichever is
sooner. Fax notices are deemed effective the next business day after faxing.
15.15 Severability. Should any term or provision of this Contract be held invalid or unenforceable in.any
respect. the remaining terms and provisions shall not be affected and this Contract shall be construed
as if the invalid or unenforceable term or provision had never been included.
15.16 Illegal Dumping. The Contractor shall ensure that it and all of its Subcontractors and assigns prevent
illegal dumping of litter in accordance with Title 5, Texas Health and Safety Code, Chapter 365.
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LSCPA - The New Learning Center
a
1 15.17 Conflict of Interest. By signature hereon, Contractor certifies that no member of the Board of
•
Regents of the Texas State University System, or Executive Officers, including component
institutions, has a financial interest, directly or indirectly, in the transaction that is the subject of this
contract.
{ BY SIGNING BELOW, the Parties have executed and bound themselves to this Contract as of the day and
year first above written.
i (Contractor) /
By: signature) . - L- '� -��� •
.Tartish p Shg11 .. Prowl Arent
(name and title typed)
Date: August 10,2010
FOR THE BOARD OF REGENTS
CONTENT APPROVED: TEXAS STATE UNIVERSITY SYSTEM
(Owner)
By: B
(original signature) (migind )
Name: Peter E. Graves Name: Brian McCall
Title: Vice Chancellor for Title: Chancellor
Contract Administration 8 �� �p
Date: '
•
a
1
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Page 10 of 10
LSCPA -The New Learning Center
EXHIBIT "D"
E
I
Lamar State College — Port Arthur COPY
A M,.le. gTM Thou JKb IhItemittr Spin
August 25, 2010
•
Mr. Guy N. Goodson
Germer Gertz, L.L.P.
550 Fannin, Suite 400
P.O. Box 4915
Beaumont, Texas 77704
Dear Guy:
The following is provided in support of the College's application for the .
`Operation Downtown Site Improvement Grant Program'. As you know, the
request is for a grant in the amount of $250,000.
The Learning Center is to be built on campus in the 1400 block of Procter. The
one story structure will contain 7,461 sq.ft. and will house:
• 2 classrooms
• 2 testing areas
• 1 study area
• 4 study carrells
• 4 faculty offices and conference room
• restrooms, storage, and mechanical space
•
The building is designed to accommodate 2,000 students a month seeking a variety
of developmental education services. Also, please find enclosed:
• Construction schedule
• Notice to Proceed — construction services
• Construction Contract
• Letter certifying available funds
- If you have questions or need additional information, please let me know.
Sincerely,
/
Sam Monroe
President
!ds
Enclosures
Off€. of the Pruldent
P.O. Box 310 t Port Arthur, Texas 77641.0310
Phone 409- 984.6100 • 800. 477.5872 • Fax 4094846032
E -mail Sam.Monroe@lamarpa.edn
. .
EXHIBIT "E"
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EXHIBIT "F"
t y,n
Lamar State College — Port Arthur
COP
A Mnf ►a of Ths Tau Slats Ihlrsnity Splint
August 25, 2010
•
Mr. Floyd Batiste
Port Arthur Economic Development Corporation
P.O. Box 3934
Port Arthur, Texas 77642
Dear Mr. Batiste:
I am writing this letter to give you assurance that Lamar State College-Port Arthur has
received the $1,849,500 of Tuition Revenue Bond money for the Learning Center
construction. The funds were deposited into our account on Friday, August 20, 2010.
Please let me know if additional information is needed.
Sincerely,
• J 4 r3 I L)
Owen Reck, CPA
Vice President for Finance
1 /ds
•
1
1 •
P.O. Box 310 • Port Arthur, Texts 77641 -0310
Phone 409. 983.4921 • 1.800. 477.5872
•
, cti ti Nil, G THE TEXAS STATE UNIVERSITY SYSTEM
• `$
Founded 19l 1
P.' C c) ti Thomas 3. Rusk Building • 200 East 10 Street, Suite 600 • Austin, Texas 78701 -2407 -
�
_ +g (512) 463 -1808 • Fax (512) 463 -1816 • lYEetY us.di
•
•RBGENTB
• 3ettt Via Email & US Ma!( .
Ran Blatchtey
Bryan R Wigs StNOn. Chairmmf
August 6, 2010 .
Charlie
San An7crio, Vice Chairman -
KerinLEly Mr. James Shell, President •
� i Rowan SeTex Construction Corporation •
. Ron Mitehru • P.O. 'Box 20678
Narrirhot Say - B eaumont, TX 77720 -• -
David Montagna
B` Re: Notice to Proceed - Construction Services
• Mi1i Pollard .
Project: The New Learning Center .
Bellaire
. Location: Lamar State College: Port Arthur . .
MU . .
.. &planont
Donn. Wiliam. Dear Mr. Shell:
•Arlinjron
aui.tapher Coy* This is your Notice to Proceed (NTP) with the Project titled "The New Learning
Say Marco:, snrdrnr Ream f Center" on the campus of Lamar State College -Port Arthur. .
CHANCELLOR
• Brian MsCatt • The Competitive Sealed. Proposal Contract between TSUS and SeTEX
A 'Construction Corporation (as attached) will govern all work under this NTP.
This Contract is based on your successful proposal of $1,150,000, which
BYSTaMMEMBERS includes the Add Alternate for for the Copper Roof at $150,000
Lamar Unlveraib for a total of $1,900,0 DO' (3OScalendar: days). The Completion Date
established forthis is•June 13, Liquidated Damages sate set at
Sani Houton Mlatttjatverxtb $300 per day. •
f►un /rvfllr,
Sant Houston Seat■ Votrusity The Owner has designated Peter E..Graves, Vice Chancellor for Contract
21n Woodland:
Administration, Texas State University System, as the "Owner's Designate
■ Sul
llpine state vnt.er,ia - Representative (ODR) ". The ODR is the only party authorized to direct changes
. silt Row StateUnfreretty to the scope, cost•or time of the contract. .
Blo Grande Colieee
Del Rio, Basle Pau, Uvalde
Stephen Arnold, Director of Physical Plant, Lamar State College -Port •
i SsnMsoar Arthur, .has been designated the "Owner's Designated Site Representative
Tim son At
ODSR . " As such, hellos the authority to make decisions on half of the •
Round Reck airsr.ItJ- HRfL6C ( )
oundeck Owner concerning coordination with the University of your work ore the
Guurtn.ittuteor'hchnoiary site including traffic controls; sitesafety, scheduling of utility outages,
• 8 o ion' materials selections, and all matterswithin the contract that do
L.a,.r Stag caua• - ate not involve changes to•the scope; costand %or time for completion;
°roofs however, single construction contract change Orders leas than $25,000 may .
I a cas►ese sore Ming be au by the ODSR. He will coordinate and conduct quality
Port NnSar
inspections of the work as it is installed, authorize payments and conduct
•
. • The New. Learning Center•NTP • • • •
August 6.20 i 0 . ••
.Page2of2 ' .
final acceptance_inspections. Please contact Mr. Arnold immediately and
. begin services under this NTP. • . .
Please. have art authorized officer of the company sign and return one copy of
• . this NTP. .
We look forward to a successful project. •
Sincerely, . . - •
• Tian McCall • • .
. • Chancellor. • . . • •
cc Mr: Peter E; Graves, Texas- State' University System •
. • • Mr. Stephen Arnold, Lamar State College -Port Arthur .
••: Accepted onbehalf of SeTEX Construction
j Corporation:
41 .
. Slgnxhw:
1 • . •
. •James ..R: Shed..
•
.. • , • N e t t o ?T ype Neme
• . President . .
T ILLe ,
August 10, 2010 • _ •
•
m�
•
• •