FILL DIRT PLACEMENT, GRADING AND COMPACTION AGREEMENT This Agreement is made and entered into this 27 th day of June, 2017, by and between The City of Mesquite, Nevada, a Political Subdivision of the State of Nevada (the City ) and Usher, LLC, a Nevada limited liability company ( Usher ). RECITALS A. Usher owns a parcel of land located within the City of Mesquite, Clark County, State of Nevada as more particularly described on Exhibit A hereof which is incorporated herein by this reference (the Property ). B. The City has excess fill dirt which regularly results from the dredging or removal of sediment from the areas in and surrounding Town Wash Detention Basin. C. The City desires to place all sedimentary materials removed from Town Wash Detention Basin and the immediately surrounding area on the Property in a manner generally illustrated on the attached Exhibit A which is incorporated herein by this reference (the Grading Plan ). D. Usher is willing to allow for the placement of earthen materials on the Property pursuant to the specific terms hereof. E. The parties now desire to reduce their agreement, as well as the material terms thereof, to writing. Now therefore, in consideration of the mutual covenants and promises contained herein, the parties expressly agree as follows: AGREEMENT 1. Import of Fill Dirt. Usher and the City hereby agree that the City shall be entitled to place fill dirt including clean earthen sediment, sand and dirt which are removed from the Town Wash Detention Basin and areas immediately surrounding Town Wash on to the Property as generally show on the attached Grading Plan. Said fill shall be completely free of all refuse, garbage, plastic, vegetation of every kind, wood, weeds, boulders and large rocks, expansive soils, petroleum products, or other hazardous materials. 2. Placement and Compaction. All materials placed by the City shall be graded to a finished grade and compacted in not greater than 12 inch lifts to the same standard as a building pad as required under the applicable City building ordinance. The Grading Plan shall be subject to modification from time to time upon the mutual agreement of the parties hereto. However, so long as there is no breach in the placement and compaction requirements set forth herein or in the applicable building code, then in no event shall the City be required to ever remove any of the fill placed on the Property pursuant to the terms hereof. The City shall also follow the Clark County requirements pertaining to soil specifications outline in the Uniform Standard Specifications for Public Works' Construction, Offsite Improvements, Clark County Area, 1
Nevada, latest edition and City of Mesquite standards. The City shall be responsible for verifying base topography prior to placing structural fill and/or stockpile material. 3. Right of Termination. While it is anticipated that this Agreement shall remain in place to allow the City to place materials on the Property over the next 5 to 10 years, Usher expressly reserves the right to terminate this Agreement and the City s right to place additional materials on the Property at any time upon 30 day s written notice to the City. 4. Fill Placement Schedule. The City shall from time to time provide Usher with a schedule of when fill shall be placed on the Property and in what quantities generally. Said schedule may be amended from time to time by written notice to Usher and his counsel. All parties acknowledge that the schedule consists of estimated times and quantities provide for convenience and tracking purposes. 5. General Placement Terms. This section generally describes the scope, conditions, and standards under which fill materials may be placed upon the Property. The City shall, except as otherwise specifically stated herein or in subsequent agreements, provide and pay for all labor, materials, equipment, and other facilities and services necessary for proper execution, quality control, and completion of the fill placement and grading as provided herein. 5.1 Boundaries. Within the areas of fill placement as shown on the Grading Plan, the City shall remain within said boundaries. 5.2 Code Compliance. The City shall conform to any and all applicable codes and requirements as set forth within the applicable building codes as applicable to any private developer or contractor in the development of the Property as a residential, commercial or mixed use subdivision. 5.3 Dust Control. The City or General Contractor under contract with the City shall be solely responsible for any and all dust control, including all permits and plans. The City or General Contractor under contract with the City will obtain required dust control or other permits for the work described herein. Copies of permits will be provided by the City to Usher for its records. The City or General Contractor under contract with the City shall, as may be required, maintain and post copies of all permits on the Property at all times during the fill installation operations. The City shall also be responsible for obtaining any permits required by EPA, the Army Corps of Engineers, and the State of Nevada. The City shall provide, at no cost to Usher, any and all necessary water or other supplies as necessary to complete the work described herein. 5.4 Clean Up. The City shall also be solely responsible for daily cleanup of the Property as it relates to any work performed by the City or its agents or contractors/subcontractors. 5.5 Safety Plan. The City shall be solely responsible for the safety of its employees, agent and contractors against all damages, liabilities, or injuries whatsoever, with the exception of any cause by the gross negligence or intentional malfeasance of Usher or its agents. The City, as applicable, shall be responsible for implementing 2
an injury prevention program that conforms to SB198 and all applicable OSHA rules and regulations. The City shall be solely responsible for maintaining a safe work area. 5.6 Grading. The City shall be responsible for grading the Property, where fill is placed so that no material larger than 3-inches in diameter shall remain in the top 12-inches of the finished grade. 6. Existing Conditions. The City hereby warrants and agrees that it is familiar with the terrain and existing soil conditions on the Property and that the City is prepared to take all steps necessary to place sedimentary materials on the Property in accordance with the terms hereof. Furthermore, the City shall have full responsibility for reviewing and checking all maps, drawings, information and data, for locating all underground facilities as they may exist on the Property. The City shall be responsible for the safety and protection of the foregoing and repairing any damage thereto resulting from the work of the City on or under the Property. 7. Use of the Property. The City shall arrange all necessary access, ingress and egress to and from the Property as necessary to complete the transportation and placement of all materials described herein. However, the City shall limit use of the Property to the work of placement of the fill materials and for the storage of equipment and materials related thereto. The City or General Contractor under Contract with the City shall assume full responsibility for the protection and safekeeping of equipment, materials, and site conditions on or off the Property that are related to the work described herein. 8. As-Built Plans. The City shall be required to provide an as-built plan showing the condition of the Property and all fill materials placed thereon at the completion of this contract. 9. Testing & Inspections. The City or General Contractor under Contract with the City shall select a licensed geotechnical firm who will be responsible for certifying the compaction densities and material strengths to Usher of all materials placed on the Property by the City. The City or General Contractor under Contract with the City shall be responsible to coordinate testing dates with their chosen engineer and shall provide Usher with a copy of the results of each test performed by said engineer. At the end of the contract, the City shall again provide to Usher a complete set of all test results for test performed on the Property. 10. Insurance. The City or General Contractor under Contract with the City shall carry insurance as reasonably necessary to cover any and all death, injury or damage to the Property, or to Usher or a third party, caused by or occurring upon the Property as related to the work described herein. 10.1 General Liability. The City, and General Contractor under Contract with the City at their expense, shall be required to secure commercial liability insurance, on an Occurrence Form, with an insurance company acceptable to Usher, in the minimum amount of $1,000,000 per occurrence and naming Usher as an additional insured. Such policies shall remain in full force and effect for the term of this Agreement. 3
10.2 Workers Compensation. The City shall also cover its employees as required by law, and shall require all contractors and subcontractors performing work on the Property to provide such workers compensation insurance for their employees. Such policy shall contain an endorsement that waives all right of subrogation against Usher as designated in the policy of General Liability Insurance. 11. Engineering. The City will supply at its sole cost and expense, any and all civil engineering, testing, and surveying necessary to complete the work described herein. Usher shall be a third party beneficiary to all contracts for engineering and surveying and shall be entitled to use and to rely on all reports or surveys produced. 12. Transportation of Fill. The City shall be responsible for maintaining all haul routes and haul road conditions. Haul routes within the Property (if any) shall be approved by Usher prior to commencement of work. The City shall also be solely responsible for all traffic safety including construction and public. The use of flagging, traffic control, and signage to maintain safe haul routes is the responsibility of the City. 13. Express Indemnification. The City hereby agrees to full indemnify, defend, and to hold Usher harmless, including all costs and attorneys fees, from any and all claims, whether well founded in fact or not, which is brought against Usher, it successors or assigns, based on the work described herein or any materials placed upon the Property at any time or the compaction, content, or placement thereof, without limitation. 14. Coordination of Work. All work as described herein shall be coordinated through the Public Works Director for the City of Mesquite on the one hand and Mr. John Usher or another Member of Usher, LLC, on the other hand. 15. Relationship of the Parties. The parties hereto are independent of one another. As such the City shall act as an independent contractor, maintaining complete control over all workers and operations on the Property. Specifically the City shall be responsible for the acts and omissions of the City personnel, employees, or agents, including contractors. 16. General Terms and Conditions. 16.1 Indemnification. Usher, its agents, officers, and employees shall not be liable for any claims, liabilities, penalties, fines, or any damage to property, whether real or personal, nor for any personal injuries or death caused by, or resulting from, or claimed to have been caused by or resulting from, any negligent act or omission of the City. The City hereby agrees to indemnify and save free and harmless Usher and its authorized agents, officers, and employees against any of the foregoing liabilities, claims, and/or any cost or expense that is incurred by Usher on account of any of the foregoing liabilities, including liabilities or claims by reason of the City s negligence in the performance under this Agreement. 16.2 Dispute Resolution. Should any dispute arise between the parties hereto, each party expressly agrees to submit the matter to mediation through a mutually agreeable mediator located within Clark County, Nevada. In the event mediation is unsuccessful, then any litigation necessary to enforce any term or provision of 4
this Agreement, or to collect any portion of the amount payable under this Agreement, then all litigation and collection expenses, witness fees, and court costs, and attorney's fee shall be paid to the prevailing party. All matters shall be submitted to the exclusive jurisdiction of the Eighth Judicial District Court in and for Clark County, Nevada. 16.3 Construction. This Agreement shall not be construed against the party preparing it, but shall be construed as if both parties prepared it. Words in any gender are deemed to include the other genders. The singular is deemed to include the plural and vice versa. The headings and underlined paragraph titles are for guidance only and have no significance in the interpretation of this Agreement. 16.4 Binding Effect. This Agreement is binding upon heirs, representatives, successors, and assigns of the parties hereto. 16.5 Signature Authority. The undersigned individuals hereby warrant and represent that they each have full legal authority to sign this Agreement and bind the parties hereto. 16.6 Notice. Any notice contemplated by this Agreement may be sent by any commercially reasonable means, including hand delivery, first class mail, facsimile, e-mail, or private courier. The notice must be prepaid and addressed as follows: Usher, LLC: City of Mesquite: Usher, LLC The City of Mesquite Attn: John Usher Attn: Public Works Director P.O. Box 8310 10 E. Mesquite Boulevard Gardnerville, Nevada 89460 Mesquite, Nevada 89027 With copy to: With copy to: Barry E. Clarkson Mesquite City Attorney Clarkson & Associates, LLC Attn: Robert Sweetin P.O. Box 1946 10 E. Mesquite Boulevard Mesquite, Nevada 89024 Mesquite, Nevada 89027 The notice will be effective on the date of receipt or, in the case of notice sent by first class mail, the fifth day after mailing. 16.7 Amendments. Any party hereto may propose for consideration an amendment to this Agreement. Any proposed amendment will become effective at such time as it is approved by all parties hereto. 16.8 Waiver. No right under this Agreement may be waived, except by an instrument in writing signed by the party sought to be charged with the waiver. 16.9 Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original. 5
Signed on the respective dates set forth below, to be effective as of the Effective Date. IN WITNESS WHEREOF, this Agreement has been executed as of the day, month and year first above written. USHER: Usher, LLC, a Nevada limited liability company CITY: The City of Mesquite, a Political Subdivision of the State of Nevada John Usher, Manager Allan S. Litman, Mayor Attest: Tracy E. Beck, City Clerk Approved as to Form: Robert Sweetin, City Attorney 6