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HomeMy WebLinkAboutResolution No. 2015-007CITY OF THE COLONY, TEXAS RESOLUTION NO. 2015- Oq A RESOLUTION OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE CITY MANAGER TO ENTER INTO A MAINTENANCE AGREEMENT BY AND BETWEEN THE CITY OF THE COLONY AND THE TRIBUTE HOMEOWNERS ASSOCIATION REGARDING MAINTENANCE RESPONSIBILITIES FOR STORNIWATER AND DRAINAGE FACILITIES LOCATED IN THE TRIBUTEDEVELOPMENTS, AS INCORPORATED HEREIN AND ATTACHED, HERETO AS EXHIBIT "A"; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City and the Tribute Homeov�,ncrs Association desire to enter into a Maintenance Agreement for maintenance of stormwater and drainage facilities located in common areas within the development whereby the City authorizes the Tribute Homeowners Association to maintain said properties and to permit the City access, as needed, as outlined in the Agreement, incorporated herein and attached hereto as Exhibit "A"', and WHEREAS, by entering into this Agreement, the Tribute Homeowners Association is solely responsible for the maintenance portions of the properties. NONA', THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: Section 1. That the City Council of the City of The Colony, Texas hereby approves the Maintenance Agreement between the City of The Colony and the Tribute Homeowners Association, authorizing the maintenance of said properties. Section 2. That a copy of the Agreement is incorporated herein and attached hereto as Exhibit "A", Section 3. That the city manager IS authorized to execute the 'Maintenance Agivenient on l)elialf ole the city. Section 4. That this resolution shall take effect immediately from and after its passage. PASSED AND APPROVED by the City Council of the City of The Colony, Texas, this 6th day of January 2015. X 'k6e Mc(our'ry, Mayor City of The Colony, Tex,sz AT'rEST: Christie Wil gin, City Secretary APPROVED AS TO FORM: eff klooi-6A, City Attorney STATE OF TEXAS § § MAINTENANCE AGREEMENT COUNTY OF DENTCEN § This Maintenance Agreement. (the "Agreement") is entered into by and between the City of The Colony, Texas (the "Cifu" and The Tribute Owners Assc�ciati , In,, (the „IG►A"j by and through their duly authorized representatives to be effective ori (the "Effective Date"), The City and the HOA are each a >?ai y and ollcetivel� the artres. This Agreement amends and restates in its entirety that certain Maintenance Agreement between the parties executed on October 20, 2008, which agreement shall be of no force or effect as of the Effective Date, WITNESSETH: WHEREAS, The Tribute is a master planned development consisting of the property located within planned Development District (PD) No, 3.13 on the Effective Date (the "Development"); and WHEREAS, the parties intend for the HOA to be responsible for certain stormwater and drainage improvements within the Development, as described in Section 1 below (collectively, the "HOA Improvements"), and for the City to be responsible for certain stormwater and drainage improvements within the Development, as described in Section 2 below (collectively, the "City Improvements"); and WHEREAS, notwithstanding anything to the contrary in this Agreement, the scope of the HOA's responsibilities and the City's responsibilities under this Agreement is limited to the property located within the Development's common areas, as further described on Exhibit A (the "Common Areas"), and the HADA and the City shall have no obligations under this Agreement as to property located outside of the Common Areas; and WHEREAS, the parties acknowledge that the developer of The Tribute development, or any portions thereof, is not responsible for maintaining the HOA Improvements or the City Improvements or performing any other obligations described by this Agreement; and WHEREAS, the parties acknowledge that the City shall have the sole maintenance responsibility in the Common Areas for utilities not specifically described by this Agreement, including, but not limited to, the water distribution system, sanitary sewer collection system, sanitary sewer lift station, and associated appurtenances, and the HOA and developer shall not be responsible for maintaining such improvements, NOW, THEREFORE, in consideration of the terms and conditions contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 2.155.010\40009..1 HOA Responsibilities. A. The HOA's maintenance responsibilities under this Agreement require maintenance to the same standard the City maintains City -owned drainage facilities located outside of the Development. B. The City shall not be required to maintain, inspect, or repair retaining walls located in the Common Areas or on residential lots. For plats approved after the Effective Date, retaining wails shall be placed in easements and the final plat shall specify the party responsible for maintenance of the walls. C. The HOA shall be responsible for the monitoring and removal of sediment accumulation within the channels, including inspecting, monitoring, and maintaining dams, weirs, natural flumes, slopes, gabions, and drainage channels that exhibit erosion, sloughing, and/or failure exceeding the designed slope, above or below normal pool. D. The HOA shall monitor annually, beginning in 2016, all storm outfalls into the channels and portions of the storm system that lie below the associated normal pool elevation for silt accumulation so as to identify a build-up that would materially affect the hydraulic design on the storm system. The results of each review shall be submitted to the City by the end of the calendar year in which the review was required to be conducted. If the HOA does not timely submit such report, the City may issue a written notice to the HOA demanding a copy of the report. If the 1I0A has not provided the report to the City within 30 days after the receipt of such notice, the City may complete the required review, and the HOA shall be responsible for payment of the cost incurred by the City to complete the review. Upon accepting the results indicated in the report, the City shall issue a written notice to the HDA accepting the report. Within 120 days after receipt of such notice of acceptance, the HOA shall cause the removal and disposal of the sediment that materially impedes the hydraulic design of the storm system outfalls and the channels, as described in the report. Upon completion, a certification will be issued by the HOA to the City stating that the work has been completed to the standards required by this Agreement. If the HOA does not remove the sediment by such deadline, the City may issue a written notice to the HOA demanding removal of the sediment. If the HOA has not removed the sediment within 120 days after receipt of such notice, the City may remove the sediment and the HOA shall be responsible for payment of the costs incurred by the City to remove and dispose of the sediment. E. The HOA shall retain a licensed professional engineer with experience in hydrology, impoundment of water and dams to perform a visual inspection and provide a written report regarding the condition of each dam/weir and any recommended maintenance or repairs. The inspection shall be conducted every three years beginning in 2015 and continuing through 2021. 'Thereafter, beginning in 2026, such :structural inspection and report shall be conducted every five years. results of the structural inspection shall be provided in writing to the City on or before October 1 of the year the report is due. If the HOA does not timely submit the required inspection report, the City may issue a written notice demanding a copy of the report. If the HOA does not provide the report within 60 days after receipt of such notice, the City may have the inspection conducted by a licensed professional engineer, and the HOA shall be responsible for payment of the costs incurred by the City to conduct the inspection. Upon 2 2155,0 1 0\40009. accepting the results indicated in the report, the City shall issue a written notice to the HOA accepting the report. Following receipt of notice from the City accepting the report, the HOA shall make all necessary repairs recommended by the engineer Under this paragraph on the schedule proposed by the engineer. Plans for all repairs shall be prepared by a licensed engineer and approved by the City prior to construction, with such approval not to be unreasonably withheld, conditioned, or delayed. If required, inspection fees must be paid prior to plan approval and the project must meet all applicable City ordinances. The HOA must obtain all permits required under applicable federal, state, and local law. If the HOA does not tirriely complete the repairs, the City may issue a written notice demanding completion of the repairs. If the HOA does not complete the repairs within 90 days after receipt of such notice, the City may perform the repairs, and the HOA shall be responsible for payment of the costs incur -red by the City to make the repairs. F, On a monthly basis, as well as after five inches or snore of rainfall is experienced within a 24 hour period, the HOA shall inspect the trash collection devices as approved by the U.S. Army Corps of Engineers installed on the dams/weirs and remove and properly dispose of gathered debris, and shall inspect and repair any rock check dams within the channels since they are assisting in limiting sediment and trash accumulation. If the HOA does not repair the devices or remove debris, the City may issue a written notice demanding such repairs and removal. If the HOA does not complete such repairs and removal within 60 days after receipt of such notice, the City may complete the repairs and removal, and the 140,A shall be responsible for payment of the costs incurred by the City to complete such repairs and removal, G. The HOA shall maintain the areas surrounding City -maintained structures within the Common Areas to prevent erosion, including maintenance of vegetative ground cover and soil placement. 2. City Responsibilities. The City shall regularly inspect, monitor, and maintain all of the storm sewer pipes, box culverts, beadwalls, drain lines, drain valves, outfall structures, intake structures, stormceptors, and grouted rock riprap to the same standard the City maintains City -owned drainage facilities located outside of the Development. Notwithstanding anything to the contrary, the City shall not be responsible for general sediment removal or grading, which are the responsibilities of the HOA under Section I of this Agreement. The City shall exercise the valves for the drain lines between each pond a minimum of once a year. 3. Independent Contractor. The HOA is an independent contractor, and none of its contractors, employees, agents, or independent workmen shall be deemed an employee of the City for any purpose, 4. Entire Agreement. This Agreement is the entire agreement among the Parties with respect to the subject matter covered in this Agreement. This Agreement supersedes and replaces all notes on approved final plats of the Development approved prior to the Effective Date to the extent such notes relate in any way to maintenance of drainage improvements. Notes placed on final plats of the Development after the Effective Date may supplement, but shall not be construed as revising, any of the terms of this Agreement, and such a note shall only apply to 3 2155.010\41009.1 the area within the plat that includes the note. This Agreement shall not be amended or terminated except in writing signed by both Parties. 5. Governing Law. The validity of this Agreement and any of its terms and provisions, as well as the rights and duties of the parties, shall be governed by the law of the State of Texas; and venue for any action concerning this Agreement shall be in Denton County, Texas. Vii. Recitals. The recitals to this Agreement are incorporated herein. T Severability. In the event any article, section, subsection, paragraph, sentence, phrase or word herein is held invalid, illegal or unconstitutional, the balance of this Agreement, shall be enforceable and shall be enforced as if the Parties intended at all times to delete said invalid article, section, subsection, paragraph, sentence, phrase or wordy and such invalid, illegal, unconstitutional or unenforceable article, section, subsection, paragraph, sentence, phrase, or word shall be substituted by an article, section, subsection, paragraph, sentence, phrase or word as near in substance thereto as may be valid, legal, constitutional and enforceable. & Indemnity. THE CITY SHALL NOT BE LIABLE OR RESPONSIBLE FOR, AND SHALL RE INDEMNIFIED, HELD HARMLESS AND RELEASED BY THE HOA FROM AND AGAINST ANY AND ALL SUITS, ACTION'S, LOSSES, DAMAGES, CLAIMS, OR LIABILITY OF ANY CHARACTER, TYPE, OR DESCRIPTION, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES FOR INJURY OR DEATH TO ANY PERSON, OR INJURY OR LOSS TO ANY PROPERTY, RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS, INCLUDING THE COMPANY, OR PROPERTY, ARISING OUT OF, OR OCCASIONED BY, DIRECTLY OR INDIRECTLY, THE PERFORMANCE OF THE THE HOA UNDER THIS AGREEMENT, INCLUDING CLAIMS AND DAMAGES ARISING IN WHOLE OR IN PART FROM THE NEGLIGENCE OF CITY, WITHOUT, HOWEVER, WAIVING ANY GOVERNMENTAL IMMUNITY AVAILABLE TO THE CITY UNDER TEXAS LAW AND WITHOUT WVAIVING ANY DEFENSES OF THE PARTIES UNDER. TEXAS LAW. THE PROVISIONS OFT IS INDEMNIFICATION ARE SOLELY FOR THE BENEFIT OF THE PARTIES AND NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY, IT IS THE EXPRESSED INTENT OF THE PARTIES THAT THE INDEMNITY PROVIDED FOR IN THIS AGREEMENT IS AN INDEMNITY EXTENDED BY THE HOA TO INDEMNIFY AND PROTECT THE CITY FROM THE CONSEQUENCES OF THE HOA AS WELL AS THE CITY'S NEGLIGENCE, WHETHER SUCH NEGLIGENCE IS THE SOLE OR PARTIAL CAUSE OF ANY SUCH INJURY, DEATH, OR DAMAGE. 9. Enforcement. In the event the HOA fails to maintain the HOA Improvements as provided herein, the City is hereby appointed to cause such maintenance to be performed and the cost of which shall be assessed in accordance with the deed covenants as provided in the f10A's Declaration of Covenants, Conditions, and Restrictions, as amended.. (SIGNATURE PAGE TO FOLLOW) 4 2155,010\40009. ] EXECUTED this ay of'-Z�QOL57 ATTEST BY: I City OF THE COLONY, TEXAS BY: Name: 'T A Flczlu k Title: T4 - EXECUTED this I" day of b,, By:— Name: 99 r i r, AJ IW c Title: - 215'5.010\40009. � ACKNOWLEDGMENT STATE OF TEXAS This instrument was acknowledged before me on this Sj�'day of 3.-Ijc-- q� by of the City of The Colony, Texas, on behalf ofiaid municipality. �'.-3 NZYtary-P-u'61-ic­,t#e of Texas �" ........... Elizabeth Same My Commissk)n ExpVes 102/1712015 My Commission Expires: ACKNOWLEDGMENT STATE OF TEXAS This instrument was acknowledged before me on this /I day of — 1, , c- 3�-� tg by D; rz-CID'o- of The Tribute Owners Association, Inc. on behalf of said Owners Association. MICHELLE ' L HUNT] res my Comrrkssion Expures 01 May 2 7 2C 17 Notary Public, State of Texas ,--I My Commission Expires: 5 / 2 1 Z 2155.01 0140009,1 EXHIBIT A DESCRIPTION OF COMMON AREAS WITHINTHE DEVELOPMENT Exhibit A 2 155-0 1 OW0790 5