HomeMy WebLinkAboutResolution - 2003-R0051 - Purchase Agreement - Crouch & Associates, LTD - 01_23_2003RESOLUTION
Resolution No. 2003-R0051
January 23, 2003
Item No. 55
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock an Assignment of Purchase
Agreements between the City of Lubbock and Crouch & Associates, LTD ("Crouch"),
and any other related documents. Said Assignment is attached hereto and incorporated
in this Resolution as if fully set forth herein and shall be included in the minutes of the
Council.
Passed by the City Council this 23rd day of January 2003.
~MAYOR
ATTEST:
£~~~ RebeCca Garza, City Secretary "l$""
APPROVED AS TO FORM:
6;1~
Richard K. Casner ~
Natural Resources Attorney
RKC:ke /ccdocs/CrouchAssign. Res
December 30, 2002
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Resolution No. 2003-R0051
January 23, 2003
Item No. 55
ASSIGNMENT OF PURCHASE AGREEMENTS
THIS AGREEMENT (sometimes referred to as "Assignment"), dated effective as
of the date set forth below, is by and between the City of Lubbock, a Texas home rule
municipal corporation (the "City") and Crouch & Associates, LTD., a Texas limited
partnership ("Crouch").
WITNESSETH:
WHEREAS, the City owns and operates real property located in Lubbock, Texas,
utilized for cemetery purposes (the "Lands"); and
WHEREAS, on or about December 3, 2001, the City and Crouch entered into that
certain Cemetery Sales and Development Professional Service Agreement (the
"Underlying Agreement") whereby Crouch committed to construct a mausoleum upon
the Lands, and to perform certain obligations related thereto; and
WHEREAS, the City, in its sales to customers, has entered into, and contemplates
entering into further, Purchase Agreements with parties desiring mausoleum sepulture
contemplating time-sales arrangements (the "Purchase Agreements"); and
WHEREAS, Crouch desires to be assigned, and the City desires to assign to
Crouch, the Purchase Agreements, subject to the terms and provisions hereof.
NOW THEREFORE, in consideration of the mutual promises, covenants, and
agreements herein contained, the City and Crouch agree as follows:
1. Subject to the provisions hereof, the City assigns to Crouch all of the
City's right, title and interest under the Purchase Agreements, to be entered into between
the Effective Date of this Assignment and December 31, 2012, unless otherwise noted in
the applicable Purchase Agreement, without recourse of any kind, type, or form.
Crouch-Assignment of Purchase Agreement Page 1 of13
2. This Assignment constitutes a delegation of the performance of all the
duties of City as set forth in the Purchase Agreements, and Crouch agrees, covenants, and
promises to perform, in total, all of such duties under the Purchase Agreements.
3. Crouch shall pay to City, within the times specified in the Underlying
Agreement, and notwithstanding anything to the contrary herein, all sums due it under the
Underlying Agreement. Nothing contained in this Assignment shall affect, in any way,
manner or form, the obligations of Crouch to make such payments to the City.
4. CROUCH SHALL INDEMNIFY AND HOLD CITY AND CITY'S
ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES AND CONTRACTORS
HARMLESS, TO THE FULLEST EXTENT PERMITTED BY LAW, FROM AND
AGAINST ANY AND ALL CLAIMS, DEMANDS, DAMAGES, COSTS,
LIABILITIES AND EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES,
AS A RESULT OF, ARISING FROM OR RELATED TO THE ACTIVITIES
CONTEMPLATED BY THIS ASSIGNMENT, THE PURCHASE AGREEMENTS, OR
THE UNDERLYING AGREEMENT, OR FROM ANY ACT OR OMISSION OF ANY
KIND OR TYPE BY CROUCH, OR CROUCH'S OFFICERS, AGENTS,
EMPLOYEES, OR CONTRACTORS, IN OR ABOUT THE LANDS OR OTHER
REAL PROPERTY OWNED BY THE CITY, AND INCLUDING ANY AND ALL
CLAIMS, DEMANDS, DAMAGES, COSTS AND EXPENSES CAUSED IN WHOLE
OR PART, BY THE SOLE, CONCURRENT AND/OR GROSS NEGLIGENCE, OF
ANY KIND, TYPE OR DEGREE, OF CITY, CITY'S ELECTED OFFICIALS,
AGENTS, OFFICERS, EMPLOYEES OR CONTRACTORS. IF ANY ACTUAL
PROCEEDING IS BROUGHT AGAINST CITY AND/OR CITY'S ELECTED
Crouch-Assignment of Purchase Agreement Page 2 of13
OFFICIALS, OFFICERS, AGENTS, EMPLOYEES OR CONTRACTORS ARISING
FROM ANY OF THESE CIRCUMSTANCES, CROUCH FURTHER AGREES TO
DEFEND THE PROCEEDING WITH LEGAL COUNSEL ACCEPT ABLE TO CITY.
5. Crouch shall procure and carry, at its sole cost and expense through the
life of the Purchase Agreements herein assigned, and the Underlying Agreement,
insurance protection as hereinafter specified, in form and substance satisfactory to the
City, carried with an insurance company authorized to transact business in the State of
Texas, covering all foreseeable aspects and operations in connection with this
Assignment, the Purchase Agreements herein assigned and the Underlying Agreement,
including, but not limited to, all aspects, operations and/or occurrences to which Crouch
has indemnified the City, as provided in Paragraph 4, above. A Certificate of Insurance
specifying each and all coverages shall be submitted to the City prior to the execution of
this Assignment, except as it relates to the required Builder's Risk Insurance, of which
said Certificate shall be submitted no later than fifteen (15) days prior to the
commencement of any construction activities. Crouch shall provide to the City proof of
the below-described insurance on or before fourteen (14) days prior to the expiration date
of each expiring policy, and cause each required policy to require the insurer to (i) give
notice to the City, as specified herein, of termination of any such policy sixty (60) days
before such termination is to be effective; and (ii) contain a waiver of any and all of the
insurer's rights to subrogation that any such insurer or insurers may acquire by virtue of
payment of any loss under such insurance.
A. Comprehensive General Liability Insurance. Crouch shall have
comprehensive general liability insurance, with an endorsement to
include contractual coverage, with limits of $1,000,000.00
Crouch-Assignment of Purchase Agreement. Page 3 of13
-·
combined single limit in the aggregate and per occurrence. The
City shall be named as an additional insured in such policy.
B. Owner's Protective or Contingent Public Liability Insurance and
Property Damage Liability Insurance. Crouch shall obtain an
Owner's Protective or Contingent Public Liability Insurance policy
naming City as insured, in the amount of, for bodily injuries,
including accidental death and/or property damage, $1,000,000.00
combined single limit. This insurance coverage shall include
coverage against casualty or damage, including, but not limited to,
damage caused by fire and/or vandalism, to any and all
improvements located on the Lands.
C. Builder's Risk Insurance. Crouch shall have Builder's Risk
Insurance in the amount of one hundred percent (100%) of the
prices of each contract relating to the construction activities
contemplated in this Assignment, the Purchase Agreements, and/or
the Underlying Agreement.
D. Worker's Compensation and Employers Liability Insurance.
covering all employees whether employed by Crouch or any
subcontractor on the job with Employers Liability of at least
$500,000.00, with a valid Waiver of Subrogation.
1. Definitions:
Certificate of coverage ("certificate") - A copy of a certificate of
insurance, a certificate of authority to self-insure issued by the
commission, or a coverage agreement (TWCC-81, TWCC-82,
TWCC-83, or TWCC-84), showing statutory workers'
compensation insurance coverage for the person's or entity's
employees providing services on the mausoleum or
mausoleums (the "Project"), for the duration of the Project.
Duration of the Project -includes the time from the beginning
of the work on the Project until Crouch's work on the Project
has been completed and accepted by the -City.
Persons providing services on the Project ("subcontractor" in
Section 406.096, Texas Labor Code) -includes all persons or
entities performing all or part of the services Crouch has
undertaken to perform on the Project, regardless of whether that
person contracted directly with Crouch and regardless of
whether that person has employees. This includes, without
limitation, independent contractors, subcontractors, leasing
companies, motor carriers, owner-operators, employees of any
such entity, or employees of any entity which furnishes persons
Crouch-Assignment of Purchase Agreement Page4 of13
to provide services on the Project. "Services" include, without
limitation, providing, hauling, or delivering equipment or
materials, or providing labor, transportation, or other service
related to the Project. "Services" does not include activities
unrelated to the Project, such as food/beverage vendors, office
supply deliveries, and delivery of portable toilets.
2. Crouch shall provide coverage, based on proper reporting
of classification codes and payroll amounts and filing of any
coverage agreements, which meets the statutory requirements of
Texas Labor Code, Section 401.011(44) for all employees of the
contractor providing services on the Project, for the duration of
the Project.
3. Crouch must provide a certificate of coverage to the City.
4. If the coverage period shown on Crouch's current
certificate of coverage ends during the duration of the Project,
Crouch must, prior to the end of the coverage period, file a new
certificate of coverage with the City showing that coverage has
been extended.
5. Crouch shall obtain from each person providing services on
the Project, and provide to the City:
(a) a certificate of coverage, prior to that person
beginning work on the Project, so the City will have on file
certificates of coverage showing coverage for all persons
providing services on the Project; and
(b) no later than seven days after receipt by Crouch, a
new certificate of coverage showing extension of coverage,
if the coverage period shown on the current certificate of
coverage ends during the duration of the Project.
6 Crouch shall retain all required certificates of coverage for
the duration of the Project and for one year thereafter.
7. Crouch shall notify the City in writing by certified mail or
personal delivery, within 10 days after Crouch knew or should
have known, of any change that materially affects the provision
of coverage of any person providing services on the Project.
8. Crouch shall post on each Project site a notice, in the text,
form and manner prescribed by the Texas Workers'
Compensation Commission, informing all persons providing
services on the Project that they are required to be covered, and
Crouch-Assignment of Purchase Agreement Page 5 of13
stating how a person may verify coverage and report lack of
coverage.
9. Crouch shall contractually require each person with whom
it contracts to provide services on the Project, to:
(a) provide coverage, based on proper reporting of
classification codes and payroll amounts and filing of any
coverage agreements, which meets the statutory
requirements of Texas Labor Code, Section 401.011(44)
for all of its employees providing services on the project,
for the duration of the Project;
(b) provide to Crouch, prior to that person beginning
work on the Project, a certificate of coverage showing that
coverage is being provided for all employees of the person
providing services on the Project, for the duration of the
Project;
( c) provide Crouch, prior to the end of the coverage
period, a new certificate of coverage showing extension of
coverage, if the coverage period shown on the current
certificate of coverage ends during the duration of the
Project;
( d) obtain from each other person with whom it
contracts, and provide to Crouch:
(i) a certificate of coverage, prior to the other person
beginning work on the Project; and
(ii) a new certificate of coverage showing extension
of coverage, prior to the end of the coverage period,
if the coverage period shown on the current
certificate of coverage ends during the duration of
the Project;
( e) retain all required certificates of coverage on file for
the duration of the Project and for one year thereafter;
(f) notify the City in writing by certified mail or
personal delivery, within 10 days after the person knew or
should have known, of any change that materially affects
the provision of coverage of any person providing services
on the Project; and
(g) contractually require each person with whom it
contracts to perform as required by paragraphs (a) -(g),
Crouch-Assignment of Purchase Agreement Page 6 of13
"' .i _.._.
with the certificates of coverage to be provided to the
person for whom they are providing services.
10. By signing this contract or providing or causing to be
provided a certificate of coverage, Crouch is representing to the
City that all employees of Crouch who will provide services on
the Project will be covered by worker's compensation coverage
for the duration of the Project, that the coverage will be based
on proper reporting of classification codes and payroll amounts,
and that all coverage agreements will be filed with the
appropriate insurance carrier or, in the case of a self-insured,
with the commission's Division of Self-Insurance Regulation.
Providing false or misleading information may subject Crouch
to administrative penalties, criminal penalties, civil penalties, or
other civil actions.
11. Crouch's failure to comply with any of these provisions is a
breach of contract by Crouch which entitles the City to declare
the contract void if Crouch does not remedy the breach within
ten days after receipt of notice of breach from the City.
E. Proof of Coverage
1. Crouch or a contractor shall:
(a) provide coverage for its employees providing
services on a Project, for the duration of the Project based
on proper reporting of classification codes and payroll
amounts and filling of any coverage agreements;
(b) provide a certificate of coverage showing workers'
compensation coverage to the City prior to beginning work
on the Project;
( c) provide the City, prior to the end of the coverage
period, a new certificate of coverage showing extension of
coverage, ifthe coverage period shown on Crouch's current
certificate of coverage ends during the duration of the
Project;
( d) obtain from each person providing services on a
Project, and provide to the City:
Crouch-Assignment of Purchase Agreement
(i) a certificate of coverage, prior to that person
beginning work on the Project, so the City will have
on file certificates of coverage showing coverage
for all persons providing services on the Project;
and
(ii) no later than seven days after receipt by
Crouch, a new certificate of coverage showing
Page 7of13
extension of coverage, if the coverage period shown
on the current certificate of coverage ends during
the duration of the Project;
( e) retain all required certificates of coverage on file for
the duration of the Project and for one year thereafter;
(f) notify the City in writing by certified mail or
personal delivery, within 10 days after Crouch knew or
should have known, of any change that materially affects
the provision of coverage of any person providing services
on the Project;
(g) post a notice on each Project site informing all
persons providing services on the Project that they are
required to be covered, and stating how a person may
verify current coverage and report failure to provide
coverage. This notice does not satisfy other posting
requirements imposed by the Texas Worker's
Compensation Act or other commission rules. This notice
must be printed with a title in at least 30 point bold type
and text in at least 19 point normal type, and shall be in
both English and Spanish and any other language common
to the worker population. The text for the notices shall be
the following text provided by the commission on the
sample notice, without any additional words or changes:
REQUIRED
COVERAGE
WORKERS' COMPENSATION
"The law requires that each person working on this site
or providing services related to this construction project
must be covered by workers' compensation insurance.
This includes persons providing, hauling, or delivering
equipment or materials, or providing labor or
transportation or other service related to the project,
regardless of the identity of their employer or status as an
employee. "
"Call the Texas Workers' Compensation Commission at
5111440-3789 to receive information of the legal
requirements for coverage, to verify whether your
employer has provided the required coverage, or to report
an employer's failure to provide coverage;" and
(h) contractually require each person with whom it
contracts to provide services on a Project, to:
Crouch-Assignment of Purchase Agreement
(i) provide coverage based on proper reporting
of classification codes and payroll amounts and
Page 8 of13
filing of any coverage agreements for all of its
employees providing services on the Project, for the
duration of the Project;
(ii) provide a certificate of coverage to Crouch
prior to that person beginning work on the Project;
(iii) include in all contracts to provide services
on the Project the following language:
"By signing this contract or providing or
causing to be provided a certificate of
coverage, the person signing this contract
is representing to the City that all
employees of the person signing this
contract who will provide services on the
Project will be covered by workers'
compensation coverage for the duration
of the Project, that the coverage will be
based on proper reprinting of
classification codes and payroll amounts,
and that all coverage agreements will be
filed with the appropriate insurance
carrier or, in the case of a self-insured,
with the commission's Division of Self-
Insurance Regulation. Providing false or
misleading information may subject the
Contractor to administrative penalties,
criminal penalties, civil penalties, or other
civil actions.";
Crouch-Assignment of Purchase Agreement
(iv) provide Crouch, prior to the end of the
coverage period, a new certificate of coverage
showing extension of coverage, if the coverage
period shown on the current certificate of coverage
ends during the duration of the Project;
(v) obtain from each other person with whom it
contracts, and provide to Crouch:
(1) a certificate of coverage, prior to the
other person beginning work on the Project;
and
(2) prior to the end of the coverage period, a
new certificate of coverage showing
extension of the coverage period, if the
coverage period shown on the current
certificate of coverage ends during the
duration of the Project;
Page 9of13
(vi) retain all required certificates of coverage on
file for the duration of the Project and for one year
thereafter;
(vii) notify the City in writing by certified mail or
personal delivery, within 10 days after the person
knew or should have known, of any change that
materially affects the provision of coverage of any
person providing services on the Project; and
(viii) contractually require each other person with
whom it contracts, to perform as required by
paragraphs (i)-(viii), with the certificate of coverage
to be provided to the person for whom they are
providing services.
6. Crouch is in default under this Assignment in the event Crouch shall fail
to meet, comply with, or perform any covenant, agreement, or obligation on Crouch's
part required in this Assignment, the Purchase Agreements and/or the Underlying
Agreement within the time limits and in the manner required in this Assignment, the
Purchase Agreements, and/or the Underlying Agreement, as applicable.
On the occurrence of any event deemed by the City to be a default by Crouch
under this Assignment, and Crouch shall have failed to completely cure such default on
or before twenty (20) days after notice of such default is provided to Crouch, the City
may, at City's sole option, do any one or more of the following:
A. Immediately terminate this Assignment without any further action
by the City, by written notice delivered to Crouch, in which event
Crouch shall immediately reassign the Purchase Agreements
assigned under this Assignment, along with all rights thereunder;
and
B. Seek any other recourse, relief, or remedy that may be available to
City at or by law, equity, or contract, including without limitation,
Crouch-Assignment of Purchase Agreement Page 10of13
bringing a lawsuit for damages and attorneys' fees. It is expressly
agreed and understood that the exercise of any right or remedy by
City shall not preclude the concurrent or subsequent exercise of
any other right or remedy and all other rights and remedies shall be
cumulative.
7. All notices, demands, requests, and other communications required
hereunder shall be in writing and shall be deemed to be delivered upon the earlier to
occur of (i) actual receipt, and (ii) the deposit of, in a regularly maintained-receptacle for
the United States mail, registered or certified, return receipt requested, postage prepaid,
addresses as follows:
Ifto City:
City of Lubbock
Randy Truesdell, Parks and Recreation Manager
P OBox 2000
Lubbock, Texas 79457
If to Crouch:
Crouch & Associates, LTD.
Attn: Jay D. Crouch, President and CEO
P 0 Box 150038
Austin, Texas 78715
8. This Assignment is being executed and delivered and is intended to be
performed in the State of Texas, the laws of Texas governing the validity, construction,
enforcement, and interpretation of this Assignment. This Assignment is performable in,
and exclusive venue for any action brought with respect hereto shall lie, in Lubbock
County, Texas.
Crouch-Assignment of Purchase Agreement Page 11of13
.... ,_ .
9. This Assignment embodies the entire agreement between the parties and
supercedes all prior agreements and understandings, if any, related to the assignment of
the Purchase Agreements and the Underlying Agreement, if affected hereby, and may be
amended or supplemented only in writing, executed by the party against whom
enforcement is sought.
10. This Assignment, together with the Purchase Agreements assigned
hereunder, except as otherwise provided herein, may not be assigned without the express
consent of the City. As a condition to consent, the City may require, in addition to other
things it may deem necessary or advisable in its sole and absolute discretion, an express
assumption by the potential assignee of all obligations of the City under the Purchase
Agreements. This Assignment, together with the Purchase Agreements assigned
hereunder, may be assigned by Crouch to a "bank", as defined in Section 31.002 of the
Texas Finance Code, as same may be amended from time to time, without an expressed
acceptance of the obligations of the City under the Purchase Agreements, solely for the
purpose of obtaining financing by Crouch to be utilized for the construction, promotion
and sale of the facilities contemplated in the Underlying Agreement . This Assignment is
binding upon and inures to the benefit of the City and Crouch, and their respective
successors.
11. Nothing contained herein shall ever be construed as a conveyance of real
property, or any interest therein, by the City. The City expressly reserves all real
property owned by it. This Assignment is without recourse and is "as is'', "where is", and
"with all faults" and further, is without warranties of any kind or nature, expressed or
Crouch-Assignment of Purchase Agreement Page 12 of13
.... I> •
implied, including without limitation, warranties of title, fitness for use or particular
purpose or merchantability.
Executed and effective this 23rd day of January , 200~, but effective for all
purposes on January , 23nl,200J.
CROUCH & ASSOCIATES, LTD.
ATTEST:
M~~~
Rebecca Garza, City SecretafY
APPROVED AS TO CONTENT:
~
APPROVED AS TO FORM:
,k/?L_
Richard Casner,
Natural Resources Attorney
Richard/l/cityatt//CrouchAssgnPA.Redline2.December 20, 2002
Crouch-Assignment of Purchase Agreement Page 13 of13