Loading...
R98-80 12-21-98 RESOLUTION NO. R98-80 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO ENTER INTO A CONTRACT WITH DE LEON SAND AND GRAVEL FOR THE EXCAVATION OF THE CITY'S VETERANS/MARY'S CREEK DETENTION PROJECT. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain contract by and between the City of Pearland and De Leon Sand and Gravel, a copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved. Section 2. That the City Manager or his designee is hereby authorized to execute and the City Secretary to attest the original of the attached contract with De Leon Sand and Gravel, for and on behalf of the City of Pearland, for the excavation of the City's Veterans/Mary's Creek Detention Project. PASSED, APPROVED and ADOPTED this the c~, / day of ~_~¢..m~:~" , A.D., 1998. / '~ TOM REID MAYOR ATTEST: J)UNG Jzl~RFI~ / ~ YY S~RETARY ~" APPROVED AS TO FORM: I~ARRIN M. COKER CITY ATTORNEY EXCAVATION AGREEMENT This excavation agreement with mutual restrictive covenants ("Agreement") is made and entered into on this the /as day of .2~t~ , 19 ~ , by and between De Leon Sand and Gravel, through its owner, John De Leon, III ("Contractor"), and the City of Pearland, a Texas home rule municipal corporation of Brazoria and Harris Counties, Texas ("City"). WlTNESSETH: A. City is the owner of certain real property situated within the corporate city limits of the City of Pearland, in Brazoria County, Texas, as shown on Exhibit "A" attached hereto and made a part hereof for all purposes ("Property"). B. Contractor is in the business of excavating and selling soil. C. In connection with the City's Veterans/Mary's Creek Detention Project, City desires to have a detention basin constructed on the Property. Contractor desires clay fill, bank sand, and top soil ("Products") for use in the furtherance of his business. THEREFORE: For and in consideration of the mutual agreements and obligations set forth below, the sufficiency of which is hereby acknowledged by the parties hereto, Contractor and City agree as follows: 1. Contractor agrees to excavate the Products from City's Property within the boundary limits and parameters, surveyed and staked by City and in accordance with the scope, depth, and design set forth in City specifications attached hereto as Exhibit "A" and made a part hereof for all purposes. 2. Contractor agrees to complete said excavation within eighteen (18) months from the date of this Agreement. However, the parties may agree upon an extension if good cause is shown. Said extension must be in writing and signed by both parties. 3. Once Contractor has removed all marketable clay fill and bank sand, Contractor shall inform City, and shall leave the Property within thirty (30) days, subject to any matters required under paragraph 17(a)-(d). -1- 4. Contractor agrees to excavate from the Property no more than approximately two hundred seventy thousand (270,000) cubic yards of clay fill, no more than approximately twenty thousand (20,000) cubic yards of bank sand, and no more than approximately thirty-two thousand (32,000) cubic yards of top soil from the Property. Additional bank sand may be excavated as long as a six-to-one (6:1) side slope (starting sixty (60) feet inside the property lines and inside Mary's Creek right-of-way line) is maintained and the vertical cut face is no less than one hundred twenty (120) feet from the fence lines (see Exhibit "B", Section A-A~, and Section B-Bl) . 5. Contractor agrees to remove all marketable clay fill and bank sand overburden from the Property upon excavation. 6. Contractor agrees to submit a water sump and groundwater pumping plan to City for approval before excavation is begun. 7. Contractor agrees to begin making payments to City for bank sand and top soil in accordance with Section 11.2 herein, upon the expiration of sixty (60) days after operations have commenced (first payment to be due March 1, 1999) and to continue with payments due and payable to City on the first day of every month thereafter. 8. Contractor agrees to use accepted accounting practices for purposes of determining total amounts owed to City. 9. Contractor agrees to use consecutively numbered truck load tickets and shall keep an accurate log of these consecutively numbered truck load tickets. Contractor agrees to provide City a copy of each load ticket and a copy of the monthly billing statements sent to each customer and destination. City shall have the right to observe and audit all of Contractor's accounting procedures for a period of one (i) year after the term of this Agreement expires. 10. Contractor shall, within thirty (30) days from the date of this Contract, obtain all necessary permits and zoning compliance from the City of Pearland, Texas, and all other entities having jurisdiction over the Property. 11. Contractor shall comply with all applicable government regulations, restrictions, ordinances, and all other government or statutory mandates, and shall bear all cost associated therewith. 12. Contractor agrees to carry insurance with minimum policy limits as set forth below and to name City as additional insured on said policies (Contractor shall provide copies of said policies in effect on an annual basis): (a) Contractor shall obtain and maintain Employer's Liability Insurance (with limits of $1,000,000.00) in accordance with all applicable state and federal laws; -2- (b) Contractor shall obtain, and maintain for any vehicle operated in the performance of excavation operations, Automobile Liability Insurance with minimum limits for Bodily Injury of $1,000,000.00 per person and $1,000,000.00 per occurrence and Property Damage of $1,000,000.00 per occurrence; (c) Contractor shall obtain and maintain General Liability Insurance covering all operations including liability assumed under this contract with a combined single limit of liability for bodily injury and property damage of not less than $1,000,000.00; and (d) Excess Liability Insurance above the amounts specified in (a), (b) and (c) of this paragraph in the amount of $1,000,000.00. 13. Contractor agrees to pay all electrical, water, sewage and other utility charges incurred in the excavation process. 14. Contractor agrees to pay any and all property taxes which may come due on equipment or improvements on this Property. 15. Contractor agrees that he has conducted sufficient testing of the Property to satisfy himself regarding environmental concerns and further agrees to notify the City immediately if any environmental problems are discovered during the course of his operations on the Property. Failure of Contractor to notify the City will result in Contractor's assuming liability for the same. 16. Contractor agrees to assume responsibility for any and all environmental damage to the Property resulting from his operations, including but not limited to diesel and/or oil spillage, and further agrees to notify the City immediately and correct any such problems upon occurrence to prevent further damage to the Property. 17. Upon completion and termination of this Agreement, Contractor agrees to: (a) Fill and smooth any new drainage ditches or disturbed areas placed on the Property; (b) Clean original drainage ditches on the Property to functional use; (c) Remove all equipment and residue from operations, including cables, spools, discarded parts, metal and other debris from the Property within thirty (30) days, excluding concrete rubble, asphalt, and other miscellaneous debris already on the Property; and (d) Leave surface around and within excavated high bank clean and smoothly sloped. 18. CONTRACTOR ASSUMES ALL RISKS INVOLVED IN THE EXCAVA- TION PROCESS DURING THE TERM OF THIS CONTRACT AND AS CONSIDERA- TION FOR THIS AGREEMENT, CONTRACTOR HEREBY RELEASES, ACQUITS, AND FOREVER DISCHARGES CITY, ITS OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, AND ASSIGNS FROM ANY AND ALL CLAIMS, DEMANDS, RIGHTS OR CAUSES OF ACTION OF WHATSOEVER CHARACTER OR NATURE ARISING FROM OR BY REASON OF ANY AND ALL BODILY OR PERSONAL INJURIES, INCLUDING DEATH AND MENTAL ANGUISH, DAMAGE TO PROPERTY AND THE CONSEQUENCES THEREOF WHICH MAY BE SUSTAINED BY CONTRACTOR, CONTRACTOR'S HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, OR ASSIGNS AS A RESULT OF THE EXCAVATION PROCESS AND WHICH ARE CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF CITY, ITS OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, ORASSIGNS. CONTRACTOR SHALL KEEP AND HOLD HARMLESS CITY, ITS OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, AND ASSIGNS FROM ANY AND ALL COST, LIABILITY, DAMAGE OR EXPENSE OF ANY NATURE AND HOWSOEVER CAUSED, CLAIMED OR RECOVERED BY ANYONE BY REASON OF INJURY TO OR DEATH OF ANY PERSON OR PERSONS OR DAMAGE TO OR DESTRUCTION OF PROPERTY CAUSED BY OR RESULTING FROM THE NEGLIGENCE OF CITY, ITS OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS ARISING IN CONNECTION WITH CONTRACTOR'S OPERATIONS ON CITY'S PROPERTY. IT IS THE EXPRESSED INTENTION OF BOTH CONTRACTOR AND CITY THAT THE INDEMNITY PROVIDED FOR IN THIS SECTION IS INDEMNITY BY CONTRACTOR TO INDEMNIFY AND PROTECT CITY FROM THE CONSEQUENCES OF THE NEGLIGENCE OF CITY, ITS OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS WHETHER SUCH NEGLIGENCE BE SOLE, JOINT, OR CONCURRENT, ACTIVE OR PASSIVE. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION, EXPIRATION, OR CANCELLATION OF THIS AGREEMENT. II. 1. City, at its expense, has staked and surveyed the Property and has prepared detailed specifications and drawings to provide Contractor with sufficient information to conduct excavation, including all necessary design, engineering, and construction plans. (See Exhibit "B"). 2. City agrees to provide clay fill to Contractor at no cost and further agrees to sell to Contractor, bank sand at the price of Fifty Cents (50C) per cubic yard. 3. Contractor shall maintain at all times no less than a continuous 20-foot width free of excavation or fill between the perimeter fence and his operations. 4. City agrees that Contractor shall have the right of ingress and egress to the Property during the hours between sunrise and sunset for excavation operations. -4- III. 1. CITY DOES NOT WARRANT OR GUARANTEE THE AVAILABILITY OF THE PRODUCTS IN ANY AMOUNTS STATED HEREIN. FURTHER, CITY IS OFFERING THE PRODUCTS IN AN "AS IS" CONDITION WITH ANY AND ALL LATENT AND PATENT DEFECTS. CITY DOES NOT WARRANT THAT THE PRODUCTS ARE FIT FOR ANY PARTICULAR PURPOSE. CITY MAKES NO REPRESENTATION OR EXPRESS OR IMPLIED WARRANTY AS TO THE CONDITION OF THE PRODUCTS, THEIR MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR THE CONFORMITY OF ANY OF THE PRODUCTS TO THE CONTRACTOR'S INTENDED USE(S). CITY SHALL NOT BE LIABLE FOR ANY DAMAGES WITH RESPECT TO THE CONDITION, QUALITY, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OR THE CONFORMITY OF ANY OF THE PRODUCTS TO THE CONTRACTOR'S INTENDED USE(S). CONTRACTOR ACKNOWLEDGES THAT HE HAS NOT RELIED UPON ANY DECLARATIONS OR STATEMENTS OF CITY, ITS OFFICERS, OR EMPLOYEES, AS AN INDUCEMENT TO ENTER INTO THIS AGREEMENT AND FURTHER RECOGNIZES AND AGREES THAT HE IS PURCHASING SAID PRODUCTS IN THEIR "AS IS" AND "WHERE IS" CONDITIONS. 2. The rights and obligations of this Agreemem may not be assigned without prior written consent of City and Contractor. 3. Unless the parties otherwise agree, if Contractor fails to conduct said excavation for a period of thirty (30) days or more, taking into consideration acts of God or nature, City has the option to terminate this Agreement upon ninety (90) days' written notice to Contractor. 4. If Contractor fails to perform or observe any provision of this Agreement and fails to remedy same within thirty (30) days after written notice by City, the same shall constitute a default of this Agreement and said Agreement shall terminate immediately upon written notice by City. 5. Should any litigation be commenced between the parties hereto concerning this Agreement, or the rights and duties of either party in relation thereto, the party prevailing in such litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for his attorneys' fees in such litigation. 6. This Agreement represents the entire agreement between Contractor and City and supersedes any prior understanding or written or oral agreements between the parties concerning the excavation process. Further, this Agreement cannot be varied, amended, modified, altered, or terminated, except by written agreement duly executed by both parties. 7. The covenants and provisions hereof shall extend to and be binding upon the parties hereto, their heirs, executors, administrators, successors, and assigns. -5- IN WITNESS WHEREOF, the undersigned Contractor and City hereby execute this Agreement as of the day and year first written above. DE LEON SAND AND GRAVEL, Contractor Owner ATTEST: CITY OF PEARLAND, TEXAS, Owner ~n~ecL? y~ // fi' ~'~ien~R. Erwi~l City Manager -6- THE STATE OF TEXAS § COUNTY OF ~tg. fi"~t~lA § BEFORE ME, the undersigned Notary Public, on this day personally appeared John De Leon, III, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS ~ DAY OF , A.D., I9 q q . i ~. ~ ~t ~c~. sm~ o~ ,vas Commission Expires: ¢/~.lt 1:~:~.{~ MYCOMM~SlONI~O~IRtS Printed Name: k..~SO I~. -~**~&-~ THE STATE OF TEXAS § COUNTIES OF HARRIS & BRAZORIA § BEFORE ME, the undersigned Notary Public, on this day personally appeared Glen R. Erwin, City Manager of the City of Pearland, Texas, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS CdA,k DAY OF 77~-~..~a~r,, , A.D., 19 c]q NOTARY PUBLIC, ST~ATE OF TEXAS i Commission Expires: ~]a.t/q ~ Printed Name: ~_.q:a -]>. 7J-D txe-q -7- �ry m � e ^ �r CJ 5 S s �. i 4 Er In IIl _ i 9 n I »N iI , � ' LO t o K Y) 71 -9 Q y � rl i w011Ln QC) 71 ,G Jil 1 r E -J .a o u