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R2003-0002 01-13-03RESOLUTION NO. R2003-2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, APPROVING A LANDSCAPING MAINTENANCE AGREEMENT ASSOCIATED WITH THE MAINTENANCE OF PROPERTIES PURCHASED THROUGH THE FEMA BUYOUT PROGRAM. WHEREAS, the Federal Emergency Management Agency ("FEMA") established an accelerated buyout program for the purchase of certain homes that are highly susceptible to flooding; and WHEREAS, the City acquired certain properties within its corporate boundaries using FEMA funds and assumes responsibility for maintaining the same; and WHEREAS, the City desires to allow third parties to use and maintain certain properties that were purchased by the City using FEMA funds, therefore enter into a landscaping maintenance agreement outlining the rights of the respective parties to the agreement; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That the City Council approves, and authorizes the City Manager or his designee to enter into the Landscaping Maintenance Agreement, attached hereto as Exhibit "A", with willing third parties. PASSED, APPROVED and January , A.D., 2003. ADOPTED this the 13th day of TOM REID MAYOR ATTEST: APPROVED AS TO FORM: CITY ATTORNEY EXHIBIT LANDSCAPING MAINTENANCE AGREEMENT THE STATE OF TEXAS COUNTY OF BRAZORIA Exhibit "A" R2003-2 THIS AGREEMENT is 'made and entered into by and between the City of Pearland, Texas (the "City") and (the "Maintainer"). EXCLUSIVE LICENSE GRANTED Subject to the terms and provisions set forth herein, the City grants to Maintainer an exclusive license to use the property located at , Pearland, Texas (the "Property"). This license entitles Maintainer to use the Property in any manner not inconsistent with its character as a residential lot and that would not substantially change the contour or condition of the Property, and includes the right to exclude others from the Property, except those persons acting on behalf on the City. This license does not grant Maintainer the right to build, erect, or place any structure or improvement; park or place any vehicle or means of conveyance; remove or destroy any trees; plant any land'scaping that interferes with the use of the Property for flood control or drainage purposes; or store building or other materials on the Property. CONSIDERATION FOR EXCLUSIVE LICENSE Maintainer shall, at Maintainer's sole expense, maintain the landscaping within and mow the grass on the Property so that it never exceeds six inches in height, prevent the accumulation of trash, junk, or other unsightly objects on the Property, and generally maintain the Property in a manner that does not create an unsanitary condition likely to attract or harbor mosquitoes, rodents, vermin, or disease carrying pests. Should the City Manager of the City or his designee, (the "City Manager") at any time determine that the Property has not been maintained properly, that the Property is being used inappropriately, or that Maintainer has improperly changed the Property, the City Manager may notify Maintainer of the default and require cure of said default. If the problem is not corrected within five (5) working days of such notice, the City may take all actions it deems necessary remedy the problem and terminate this Agreement as provided herein. Maintainer shall pay all costs of any such remedial action by the City. CITY'S RIGHTS PARAMOUNT The City's rights in the Property remain paramount to those of Maintainer, and the City may at any time enter upon the Property, flood the Property, and/or remove, destroy, or alter the landscaping on the Property to the extent the City Manager deems necessary for proper maintenance of drainage structures or for performing other powers or duties of the City. TERM The term of this Agreement is one month, commencing on the date executed by the last party executing this Agreement and continuing thereafter on a month to month basis, unless terminated as hereinafter provided. Either the City or Maintainer may terminate this Agreement prior to the expiration of the term set forth aboVe, with or without cause, upon ten (10) days prior written notice to the other party. All 'landscaping placed upon the Property under this Agreement will become the property of the City. The City Manager may, on or before the termination of this Agreement, notify Maintainer of any shrubbery or other landscaping which the City Manager desires to have removed from the Property. Maintainer shall then, before the termination of the Agreement, remove such shrubbery or other landscaping from the Property. Maintainer shall backfill and level the area where shrubbery and landscaping are removed. If Maintainer fails or neglects to remove such shrubbery or landscaping and so restore the Property, then Maintainer will be responsible for any costs the City incurs in performing same. NOTICES Any notice required or permitted to be given by the City to Maintainer hereunder shall be given by certified or registered United States mail, return receipt requested, postage prepaid, addressed to Maintainer as follows: Any notice required or permitted to be given by Maintainer to the City hereunder shall be given by certified or registered United States mail, return receipt requested, postage prepaid, addressed as follows: City Manager, City of Pearland, 3519 Liberty Drive, Pearland, Texas 77581-5416. Such notices will be considered exercised and completed upon their deposit in the United States mail as aforesaid. Each party may, from time to time, change its respective address for notices hereunder by specifying any other address in the State of Texas and giving at least fifteen (15) days prior written notice of such change to the other party. NON-EMPLOYEE OR AGENT It is understood that Maintainer, in performing the services under this Agreement, does not do so as an employee, servant, agent, representative, or official of the City of Pearland. NON-WAIVER Forbearance by the City to exercise one of its remedies or powers hereunder will not be deemed or construed to constitute a waiver or abandonment of such remedy or power or the waiver of any default by Maintainer. Failure of the City to object to Maintainer's performance hereunder will not be construed as approval of such performance by the City. Pursuit of any remedies or powers hereunder or otherwise allowed by law does not preclude pursuit of any other such remedies or powers. SUCCESSORS AND ASSIGNS The City and Maintainer bind themselves and their successors, eXecutors,' administrators and assigns to the other party to this Agreement and to the successors, executors, administrators, and assigns of such other party, in respect to all covenants of this Agreement. Maintainer shall not assign this Agreement or any of Maintainer's rights or obligations hereunder without the prior express written permission of the City Manager. Any attempted assignment in violation of this provision will be void and of no force or effect. MODIFICATIONS AND INTERPRETATION This instrument contains the entire Agreement between the parties related to the rights herein granted and obligations herein assumed. Any oral or written representations or modifications concerning this instrument are of no force or effect, excepting a subsequent modification in writing signed by both parties hereto. Any dispute concerning the interpretation of this Agreement, or a question of fact arising hereunder, which is n'ot disposed of by this Agreement, shall be decided by the City Manager, whose decision shall be final, binding, and conclusive, and not subject to further review, appeal, or litigation. Maintainer shall proceed diligently with the performance of Maintainer's obligations hereunder in accordance with the City Manager's decision. EXECUTED in duplicate originals on CITY OF PEARLAND By. Bill Eisen City Manager MAINTAINER EXHIBIT "A" RELEASE OF LIABILITY I HEREBY ASSUME ALL RISKS ASSOCIATED. WITH MAINTAINING AND USING THE PROPERTY LOCATED AT PEARLAND, TEXAS (THE "PROPERTY"). I FURTHER RELEASE AND HOLD HARMLESS THE CITY OF PEARLAND, ITS CITY MANAGER, OFFICIALS, SERVANTS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSEES, INVITEES, AND CONTRACTORS, FROM ALL CLAIMS OF ANY CHARACTER, TYPE, OR DESCRIPTION AS A RESULT OF ANY INJURY TO OR DEATH OF, MYSELF, OR DAMAGE TO MY PROPERTY AS A RESULT OF ANY ACTS ARISING OUT OF MY PARTICIPATION AND ACTIVITY IN MAINTAINING OR USING THE PROPERTY UNDER THE FOREGOING LANDSCAPING MAINTENANCE AGREEMENT. I AGREE TO RELEASE AND HOLD HARMLESS THE CITY OF PEARLAND, ITS CITY MANAGER, OFFICIALS, SERVANTS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSEES, INVITEES, AND CONTRACTORS FROM THE ABOVE-DESCRIBED CLAIMS, EVEN THOUGH SUCH INJURY TO OR DEATH OF MYSELF OR DAMAGE TO MY PROPERTY IS CAUSED, IN WHOLE OR IN PART, BY ANY DEFECT IN OR CONDITION OF THE PROPERTY, AND WHETHER OR NOT SUCH DEFECT OR CONDITION IS KNOWN OR SHOULD HAVE BEEN'KNOWN TO CITY OF PEARLAND, ITS CITY MANAGER, OFFICIALS, SERVANTS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSEES, INVITEES, OR CONTRACTORS, AND WHETHER OR NOT SUCH CLAIMS ARISE FROM NEGLIGENCE ATTRIBUTABLE TO THE CITY OF PEARLAND, ITS CITY MANAGER, OFFICIALS, SERVANTS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSEES, INVITEES, AND/OR CONTRACTORS. Signature Printed Name Date