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HomeMy WebLinkAboutResolution No. 2015-086CITY OF THE COLONY, TEXAS RESOLUTION NO. 2015- b$ (p A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE A MAINTENANCE AGREEMENT BY AND BETWEEN THE CITY OF THE COLONY AND CREEKSIDE AT AUSTIN WATERS HOMEOWNERS ASSOCIATION (HOA); PROVIDING AN EFFECTIVE DATE NOW, 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, has duly reviewed and considered the Maintenance Agreement by and between the City of The Colony and Creekside at Austin Waters Homeowners Association (HOA) for the purpose of establishing responsibilities regarding certain stormwater, drainage improvements and decorative paving bricks. Section 2. That this Maintenance Agreement, attached hereto as Exhibit "A", is found to be acceptable and in the best interest of the City and its citizens, and the City Manager is hereby authorized to execute the Agreement on behalf of the City of The Colony, Texas, with the terms and conditions as stated therein. Section 3. 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 17'h day of November, 2015. AT S Chnstie Wilson, TRMC, City Secretary APPROVED AS TO Jeff Moore)City Attorney G (IPTG Mc ours , Mayor ty of The Colony, Texas OF S4AL STATE OF TEXAS § § MAINTENANCE AGREEMENT COUNTY OF DENTON § This Maintenance Agreement (the "Agreement") is entered into by and between the City of The Colony, Texas (the "City") and the Creekside at Austin Waters Homeowners Association (the "HOA") by and through their duly authorized representatives to be effective on f)M)e4 _ht,r- M, 2015 (the "Effective Date"). The City and the HOA are each a "Party" and collectively the "Parties." WITNESSETH: WHEREAS, Creekside at Austin Waters is a master planned residential development initially consisting of Austin Waters East Phases 1 and 2 located within Planned Development District (PD) No. 22 on the Effective Date. Any reference in this Agreement to the "Development" means the portion of the property located within PD No. 22 and that is subject to the HOA and the Declaration (as defined below); and WHEREAS, the Parties intend for the HOA to be responsible for certain stormwater, drainage improvements and decorative paving bricks 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 and street right-of-ways, as further described on Exhibits A and B (the "Common Areas and Street Right-of-ways"), and the HOA and the City shall have no obligations under this Agreement as to property located outside of the Common Areas and Street Right-of-ways; 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 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: 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. 2155.010\40790.4 B. The HOA shall maintain, inspect, or repair the structures including retaining walls, stream channels and banks, natural flumes, slopes, gabions, grouted riprap, trails, and sidewalks on lots located within the Common Areas. Streams shall include all areas where stormwater flows and is not contained within a storm drain pipe or box culvert. C. The HOA shall be responsible for the monitoring and removal of sediment accumulation or soil erosion and maintenance within the channels and streams, including inspecting, monitoring, and maintaining weirs, natural flumes, slopes, gabions, streams, and drainage channels that exhibit erosion, sloughing, and/or failure exceeding the designed slope or grade. D. The HOA shall inspect and maintain stain on any surfaces that are stained on the bridge within areas of the City's rights-of-way as shown on the approved bridge plans for the Development. This responsibility is limited to maintaining the quality and color only throughout the life of the bridge. E. The HOA shall maintain all decorative brick pavers that are installed within areas of the City's rights-of-way as shown on the approved paving plans for the Development until 18 months after the preconstruction meeting for Phase 2. After that time, the City will maintain the decorative brick pavers. A decorative brick paver is defined as a vitrified clay brick slightly larger than building brick and used in the construction of pavement surfaces. F. The HOA shall maintain the parking spaces to be constructed on Barton Creek Boulevard that will serve the future Austin Waters Amenity Center, in accordance with the approved Site Plan for the amenity center. G. The HOA shall monitor annually, beginning one (1) calendar year from date of final acceptance of Phase 1 and 2, all of the labeled floodplain areas with reduced Manning's coefficients as depicted in Exhibit C and established by survey with monuments at the site. A registered professional engineer with experience in hydrology shall confirm that said areas have a Manning's coefficient of less than or equal to 0.050 using the figures in Open - Channel Hydraulics by V.T. Chow. 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 HOA 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 HOA accepting the report. Within 120 days after receipt of such notice of acceptance, the HOA shall cause the removal and disposal of the vegetation that materially impedes the hydraulic design of 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 vegetation by such deadline, the City may issue a written notice to the HOA demanding removal of the vegetation. If the HOA has not removed the vegetation within 120 days after receipt of such notice, the City may remove the vegetation and the HOA shall be responsible for payment of the costs incurred by the City to remove and dispose of the vegetation. 2155.010\40790.4 H. Within 90 days of the City's notification of a maintenance problem, the HOA shall retain a licensed professional engineer with experience in hydrology to perform a visual inspection and provide a written report regarding the condition of the structure(s), slope, or ground surface and any recommended maintenance or repairs. A problem includes a failing structure, change in the elevation of the ground surface of one foot or greater, or the horizontal or vertical movement of a ground slope by one foot or greater. 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 registered professional engineer, and the HOA shall be responsible for payment of the costs incurred by the City to conduct the inspection. Upon 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 registered professional 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 timely 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 incurred by the City to make the repairs. I. If the City notifies the HOA of a maintenance problem and the HOA does not agree it is a problem, the HOA must notify the City of such within 60 days. Then within 60 days of the HOA's notification the City must engage a licensed professional engineer with experience in hydrology to perform a visual inspection and provide a written report regarding the condition of the structure(s), slope, or ground surface and any recommended maintenance or repairs. If it is determined that no repairs or improvements are needed at that time, then the City is responsible for the costs of the licensed engineer's report. If repairs or improvements are necessary, then the HOA must reimburse the City for the cost of the licensed engineer's report within 60 days and conduct maintenance or repairs on the schedule and as specified in Section I.E. 2. City Responsibilities. The City shall regularly inspect, monitor, and maintain all of the storm drain pipes, box culverts, headwalls, outfall structures, and intake structures, 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 1 of this Agreement. 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 2155.010\40790.4 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 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. 6. Recitals. The recitals to this Agreement are incorporated herein. 7. 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 word; 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. 8. Indemnity. THE CITY SHALL NOT BE LIABLE OR RESPONSIBLE FOR, AND SHALL BE INDEMNIFIED, HELD HARMLESS AND RELEASED BY THE HOA FROM AND AGAINST ANY AND ALL SUITS, ACTIONS, 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 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 WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW. THE PROVISIONS OF THIS 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 2155.010\40790.4 cost of which shall be assessed in accordance with the deed covenants as provided in the HOA's Declaration of Covenants, Conditions, and Restrictions, as amended (the "Declaration"). (SIGNATURE PAGE TO FOLLOW) 2155.010\40790.4 EXECUTED this r7day o 2015. CITY OF THE COLONY, TEXAS i ATTEST BY: i By: Name: 0 gt'�4)e W 1 Title: 'A, A EXECUTED this(! day of NON, , 2015. CREEKSIDE AT AUSTIN WATERS HOMEOWNERS ASSOCIATION By: Name:�� Title: e,ae-q 2155.010\40790.4 EXHIBIT A DESCRIPTION OF COMMON AREAS WITHIN PHASE 1 OF THE DEVELOPMENT �N,((� W+�-E �9 r \ f �a r 2155.010\40790.4 EXHIBIT B DESCRIPTION OF COMMON AREAS WITHIN PHASE 2 OF THE DEVELOPMENT HOA M.,—. anrn Areas Austin Waters Pha se 2 MCll-v OF TME COLONY, YE%P� -IT—E-1. KimleyoH 2155.010\40790.4 EXHIBIT C AREAS TO MAINTAIN MANNING'S N = 0.050 Phase 1 2 15 5.01414{)7(-X),4