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HomeMy WebLinkAboutR2002-0049 03-11-02 RESOLUTION NO. R2002-4g 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 March ., A.D., 2002. ADOPTED this the 11 day of TOM REID MAYOR ATTEST: Y S~21~ETARY APPROVED AS TO FORM: DARRIN M. COKER CITY ATTORNEY Exhibit "A" R2002-49 LANDSCAPING MAINTENANCE AGREEMENT THE STATE OF TEXAS § COUNTY Of BRAZORIA § THIS AGREEMENT is made and entered into by and between the City of Pearland, a body corporate and politic under the laws of the State of Texas, hereinafter referred to as the "City," and , hereinafter referred to as "Maintainer." NON - EXCLUSIVE RIGHTS GRANTED Subject to the terms and provisions set forth herein, the City authorizes Maintainer, at Maintainer's sole expense, to landscape and plant, maintain, and replace shrubs, trees, plants, grass and other vegetation, hereinafter called "landscaping," on the property at , Texas, being described as Texas, hereinafter called the "Property." Maintainer shall not plant any landscaPing on the Property without securing the prior written approval of the City of the plans therefor. Maintainer shall not plant any landscaping on the Property that interferes with the use of the Property for flood control or drainage purposes. The City may refuse to permit the planting of any of the aforesaid items on the Property. Maintainer shall not construct or place structures, fences, signs, fixtures, or improvements of any kind whatsoever on the Property. Maintainer's use of the Property for the purposes herein stated is non- exclusive. CONSIDERATION FOR LIMITED USE In consideration for such permission and authorization, Maintainer will exercise due diligence in protecting the Property against damage or destruction by fire or causes other than flooding, and will properly maintain the landscaping within the Property and mow the grass on the Property with sufficient frequency to prevent said grass from attaining a height in excess of six (6) inches. Maintainer shall ensure that the Property is maintained in a manner that does not create an unsanitary condition likely to attract or harbor mosquitoes, rodents, vermin, or disease carrying pests. Maintainer shall prevent the accumulation of trash, refuse, garbage, litter, waste, or junk upon the Property, and shall promptly remove from the Property, at Maintainer's sole cost, all trash, refuse, garbage, litter, waste, and junk of any type whatsoever, whether deposited or placed on the Property by Maintainer or others, whether known or unknown to Maintainer. Further, Maintainer shall backfill and level those parts of the Property where shrubs are removed. Maintainer shall maintain the Property in accordance with good soil conservation practices, and shall prevent the erosion of the topsoil. Should the City Manager of the City or his designee, hereinafter the "City o Manager," at any time determine that any of the landscaping upon the Property has not been maintained properly, the City Manager may notify Maintainer of the needed maintenance. If the problem is not corrected within five (5) working days of such notice, the City and/or its contractors may perform such maintenance, remove from the Property such parts of the landscaping as the City Manager deems proper, and terminate this Agreement as provided herein. Maintainer shall pay all costs of any such maintenance and/or removal. Maintainer shall not place any structure or sign on the Property without the prior express written permission of the City Manager. Maintainer shall not allow or cause any automobile, truck, mobile home, camper, trailer, recreational vehicle, portable building, temporary housing or any form of manufactured housing, or any other type of vehicle to be parked, placed upon or affixed to the Property. Maintainer shall not permit any camping or commercial use of the Property. Maintainer shall not place or store, or allow to be placed or stored, any type of building materials or other supplies on the Property. Maintainer shall not cut timber; conduct mining, excavation or drilling operations; remove sand, gravel, or similar substances from the ground; commit waste of any kind; or in any manner substantially change the contour or condition of the Property, except with the prior express written permission of the City Manager. CITY'S RIGHTS PARAMOUNT Notwithstanding any statement herein which might be interpreted otherwise, 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. The City, its City Manager, officials, servants, agents, employees, representatives, licensees, invitees, and contractors shall not be liable to Maintainer for such actions, EVEN IN THE EVENT OF NEGLIGENCE OF THE CITY, ITS CITY MANAGER, OFFICIALS, SERVANTS, AGENTS, EMPLOYEES, REPRESENTATIVES, LICENSEES, INVITEES, AND/OR CONTRACTORS. Neither the City nor Maintainer will be required hereunder to replace or repair any part of the landscaping so removed, altered or destroyed. Maintainer shall be responsible for continued maintenance of the Property as altered during the continued existence of this Agreement. COMPLIANCE AND STANDARDS Maintainer shall comply with all state, federal, and local rules, regulations, ordinances, and statutes applicable to Maintainer's use of the Property, and shall perform landscaping and maintenance hereunder in a good and workmanlike manner. Nothing herein shall prevent the City from enacting new ordinances or orders or amending existing or future ordinances or orders affecting the subject of this Agreement. Maintainer further understands and agrees that although the City may have published certain "policies" regarding the subject of this Agreement, such policies are merely guidelines to assist Maintainer in gaining approval of plans and in properly maintaining the Property and such policies may be changed by the City Manager at any time. Such policies shall not in any way be held to limit the authority, powers, or legal rights of the City, and the City Shall not be liable to Maintainer for failure to follow said policies. Maintainer shall not cause or permit the use,' generation, storage, or disposal in, on, or about the Property of any substance, material, or waste subject to regulation under any federal, state, or local laws from time to time in effect concerning hazardous, toxic, or radioactive materials. 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. No claim for damages against the City or its City Manager, officials, servants, agents, employees, representatives, licensees, invitees, and/or contractors will be created by or made on account of such removal and restoration work, EVEN IF THE DAMAGES RESULT FROM THE NEGLIGENCE OF THE CITY, ITS CITY MANAGER, OFFICIALS, SERVANTS, AGENTS, EMPLOYEES, REPRESENTATIVES, LICENSEES, INVITEES, OR CONTRACTORS. RESPONSIBILITY FOR EXPENSES Maintainer shall, at Maintainer's sole cost and expense, pay all necessary expenses incident to Maintainer's use of the Property, including, but not limited to, costs of necessary equipment, landscaping and its installation, taxes, salaries, and benefits of Maintainer's employees, and the cost of any necessary licenses and permits which may be required of Maintainer. DISCLAIMER OF WARRANTY The City makes no warranties to Maintainer in regard to its title to or interest in the Property. Maintainer has inspected and knows the condition of the Property and the City has no obligation to make any repairs, alterations, or additions thereto. The City does not purport to grant to Maintainer permission to use the Property in any manner which might be found to be greater than or inconsistent with the City's rights, powers, or authority with regard to the Property. It is the responsibility of Maintainer to obtain any permission which might be required from any third party in order to use the Property. Maintainer will exercise all reasonable care and caution while carrying out the maintenance activities under this Agreement. Maintainer shall secure from all persons involved in maintaining the Property a Release of Liability in the form attached hereto as Exhibit "A," and shall furnish same to the City. Maintainer understands and agrees, such understanding and agreement being of the absolute essence of this Agreement, that the execution of said Release is a condition of a person's participation in maintaining the Property and that no person will participate in maintaining the Property without signing the Release and delivering same to the City. THE CITY, ITS CITY MANAGER, OFFICIALS, AGENTS, SERVANTS, EMPLOYEES, REPRESENTATIVES, LICENSEES, INVtTEES, AND CONTRACTORS ARE NOT RESPONSIBLE FOR DAMAGES TO PROPERTY OR INJURIES TO OR DEATH OF PERSONS WHICH MAY ARISE FROM OR BE INCIDENT TO THE USE AND OCCUPATION OF THE PROPERTY, AND/OR FOR DAMAGES TO THE PROPERTY OR IMPROVEMENTS OF MAINTAINER LOCATED ON THE PROPERTY, AND/OR FOR INJURIES TO THE PERSON OF MAINTAINER (IF AN INDIVIDUAL) OR DEATH OF MAINTAINER (IF AN INDIVIDUAL) OR FOR DAMAGES TO THE PROPERTY, OR INJURIES TO OR THE DEATH OF THE PERSON OF MAINTAINER'S AGENTS, SERVANTS, INVITEES, LICENSEES, REPRESENTATIVES, CONTRACTORS, OFFICERS, OR EMPLOYEES, OR OTHERS WHO MAY BE ON THE PROPERTY AT THEIR INVITATION OR THE INVITATION OF ANY ONE OF THEM, WHETHER OR NOT ARISING FROM OR INCIDENT TO THE FLOODING OF THE PROPERTY BY THE CITY OR FLOODING FROM ANY OTHER CAUSE, OR ARISING FROM OR INCIDENT TO ANY OTHER CITY ACTIVITY, ANY DEFECT IN OR CONDITION OF THE PROPERTY, WHETHER OR NOT SUCH DEFECT OR CONDITION IS KNOWN OR SHOULD HAVE BEEN KNOWN TO THE CITY, ITS CITY MANAGER, OFFICIALS, AGENTS, SERVANTS, EMPLOYEES, REPRESENTATIVES, LICENSEES, INVITEES, AND/OR CONTRACTORS, AND WHETHER OR NOT SUCH CLAIMS ARISE FROM NEGLIGENCE ATTRIBUTABLE TO THE CITY, ITS CITY MANAGER, OFFICIALS, AGENTS, SERVANTS, EMPLOYEES, REPRESENTATIVES, LICENSEES, INVITEES, AND/OR CONTRACTORS; AND MAINTAINER WILL INDEMNIFY AND HOLD THE CITY, ITS CITY MANAGER, OFFICIALS, AGENTS, SERVANTS, EMPLOYEES, REPRESENTATIVES, LICENSEES, INVITEES, AND CONTRACTORS HARMLESS FROM ANY AND ALL SUCH CLAIMS. IT IS THE EXPRESSED INTENTION OF THE CITY AND MAINTAINER THAT THE INDEMNITY PROVIDED HEREIN IS AN AGREEMENT BY MAINTAINER TO INDEMNIFY AND PROTECT THE CITY FROM ITS OWN NEGLIGENCE WHERE SAID NEGLIGENCE IS AN ALLEGED OR ACTUAL CONCURRING PROXIMATE CAUSE OF ANY ALLEGED THIRD PARTY HARM OR DAMAGE. THE INDEMNITY PROVISION PROVIDED HEREIN HAS NO APPLICATION TO ANY CLAIM OR DEMAND WHERE BODILY INJURY, DEATH, OR' PROPERTY DAMAGE RESULTS ONLY FROM THE SOLE NEGLIGENCE OF THE CITY UNMIXED WITH ANY FAULT OF THE MAINTAINER OR MAINTAINER'S EMPLOYEES, CITY MANAGERS, OFFICERS, SERVANTS, AGENTS, REPRESENTATIVES, LICENSEES, INVITEES, OR CONTRACTORS. MAINTAINER IS SOLELY RESPONSIBLE FOR HIMSELF, THE EMPLOYEES, DIRECTORS, OFFICERS, SERVANTS, AGENTS, INVITEES, LICENSEES, CONTRACTORS, AND/OR REPRESENTATIVES OF MAINTAINER, AND FOR ANY OTHER PERSON WHO MAY BE ON THE PROPERTY, WITH OR WITHOUT THE CONSENT OR PERMISSION OF MAINTAINER. MAINTAINER HOLDS THE CITY, ITS CITY MANAGER, OFFICIALS, AGENTS, SERVANTS, EMPLOYEES, REPRESENTATIVES, LICENSEES, INVITEES, AND CONTRACTORS HARMLESS FROM ANY CLAIM, DEMAND, LAWSUIT, AND LIABILITY FOR PROPERTY DAMAGES, INJURY, AND/OR DEATH SUFFERED BY ALL PERSONS ON THE PROPERTY. 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, Peadand, 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. PARTICIPANTS, OFFICERS, AND CITY MANAGERS Maintainer shall, within seven (7) days of the execution of this Agreement, furnish the City with a list of the names and addresses of all the participants, City Managers, officers, and partners of Maintainer involved in any way in the maintenance of the Property. Maintainer will send the City a corrected, revised list within seven (7) days of any change in the holders of such positions. 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. INSURANCE During the term of this Agreement, Maintainer will maintain general liability insurance on the Property in amounts not less than $100,000.00 for injuries or death to any one person and not less than $300,000.00 for injuries or death to more than one person and not less than $100,000.00 for an injury to or destruction of property in any one accident or occurrence, or in the amounts of the City's maximum limitations of liability under Texas Tort Claims Act, whichever amounts shall be greater. Within fifteen (15) days after the execution of this Agreement, Maintainer shall deliver a copy of each such insurance policy to the City Manager, as well as a certificate of insurance as proof of said insurance in a form satisfactory to the City Manager. Not later than thirty (30) days after the expiration date of each policy, Maintainer shall furnish a copy of a renewal insurance policy to the City Manager, as well as a certificate of insurance as proof of said insurance in a form satisfactory to the City Manager. 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 not 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 THE PROPERTY LOCATED AT ., TEXAS. 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 THE PROPERTY LOCATED AT , TEXAS, UNDER THE LANDSCAPING MAINTENANCE AGREEMENT BETWEEN CITY OF PEARLAND AND 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, INVlTEES, 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