R2001-0153 10-22-01 RESOLUTION NO. R2001-153
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PEARLAND, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS
DESIGNEE TO ENTER INTO AN EXCAVATION AGREEMENT WITH
DAVID WIGHT CONSTRUCTION COMPANY FOR THE REMOVAL OF
FILL DIRT ASSOCIATED WITH THE VETERANS/MARY'S CREEK
DETENTION BASIN.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain excavation agreement by and between the City of
Pearland and David Wight Construction Company, 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 an excavation agreement with David Wight
Construction Company for the removal of fill dirt associated with the
Veterans/Mary's Creek Detention Basin.
PASSED, APPROVED and ADOPTED this the 22 day of
October A.D., 2001. /%,%
TOM REID
MAYOR
ATTEST:
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
Exhibit "A"
R200'l-f53
EXCAVATION AGREEMENT
This excavation agreement with mutual restrictive covenants ("Agreement") is made and
entered into on this the /t~'/" day of _A/otZ~c,/_g,~ , 20 ~>1 , by and between
David Wi.qht Construction Co., LTD. , through its owner, David Wight
("Contractor"), and the City ofPearland, a Texas home rule municipal corporation of Brazoria,
Fort Bend, and Harris Counties, Texas ("City").
WITNESSETH:
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 general construction contracting.
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 to use
fill dirt from the Veterans/Mary's Creek Detention Project for development of the Magnolia Park
Subdivision.
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 fill dirt from City's Property within the
boundary limits and parameters, surveyed and staked by City and in accordance with
Exhibit "A" attached hereto. Said excavation shall be in accordance with the scope, depth, and
design criteria listed below:
· The amount of fill dirt to be excavated is 18,000 to 20,000 cubic yards.
· Alt placement of fill dirt within the City shall be approved by the City Engineer.
· Maximum depth of the excavated area shall not exceed seven feet at the discharge
channel.
· Maximum sideslope of the excavated area shall be at a 6:1 ratio.
· Maximum sideslope of the discharge Channel shall be at a 4:1 ratio.
· The bottom of the completed excavated area shall slope toward Mary's Creek on
a minimum slope of 0.5%.
· No slope of the completed excavated area shall be less than 0.5%.
2. Contractor agrees to complete said excavation withih 1:20 days (4 months) from
the date of this Agreement. However, the parties may agree upon an extension if good cause is
shown. Said extension must l~e in writing and signeO by both parties.
3. Once Contractor has completed the excavation, Contractor shall inform City, and
shall leave the Property within thirty (30) days, subject to any matters required under
paragraph 4.
4. Upon completion of the excavation, Contractor agrees to smooth-blade and
broadcast seed all slopes with a grass/fertilizer mix approved by the City Engineer.
5. Contractor shall comply with all applicable government regulations, restrictions,
ordinances, and all other government or statutory mandates, and shall bear all cost associated
therewith.
6. 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;
(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.
7. Contractor agrees to pay all electrical, water, sewage and other utility charges
incurred in the excavation process.
8. Contractor agrees to pay any and all property taxes which may come due on
equipment or improvements on this Property.
9. 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.
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10. Contractor agrees to assume responsibility for any arid 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.
11. 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~
CONTRACTORtS HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, OR
ASSIGNS AS A RESULT OF THE EXCAVATION PROCESS AND WHICH ARE
CAUSED 1N WHOLE OR IN PART BY THE NEGLIGENCE OF CITY, ITS OFFICERS,
AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS. 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 that Contractor shall have the right of ingress and egress to the
Property during the hours between sunrise and sunset for excavation operations.
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 Agreement 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 attomeys' 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.
IN WITNESS WHEREOF, the undersigned Contractor and City hereby execute this
Agreement as of the day and year first written above.
DWC Management, L.L.C., G.P.
David Wight Construction Co., LTp.
Contractor
Printed Name: ' ight
Title: President, G.P.
Address: 4300 Mandsle
Alvin, Texas 77511
Telephone: (281) 331-:1584
ATTEST: CITY OF PEARLAND, TEXAS,
(~l/,~~~~ By: ~e[~~'~
g L~Jin~ t,/i~/
ec~.dary City Manager
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FUTURE SPILLWAY (BY OTHERS)
SCALE: 1 "=100' HORIZ.
1 "=20' VERT
SEE DETAIL
(ELEVATIONS SHOWN
1929 NVD 1987
YEAR OF ADJ.)
DATE October 9, 2001
Job No.: COP Veterans