HomeMy WebLinkAboutResolution No. 08-098
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 08-098
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 ALONG THE IMPOUNDMENTS AND
DRAINAGE WAYS IN THE TRIBUTE DEVELOPMENTS, AS
INCORPORATED HEREIN AND A TT ACHED HERETO AS
EXHIBIT "A"; AND PROVIDING AN EFFECTIVE DATE
WHEREAS, the City and the Tribute Homeowners Association desire to enter
into a Maintenance Agreement 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 ofthe properties.
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 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
Agreement on behalf of the city.
Section 4.
passage.
That this resolution shall take effect immediately from and after its
PASSED AND APPROVED by the City Council of the City of The Colony,
Texas, this 20th day of October. 2008.
illard, Mayor
f The Colony, Texas
ATTEST:
APPROVED AS TO FORM:
COUNTY OF DENTON
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MAINTENANCE AGREEMENT
STATE OF TEXAS
This Agreement ("AGREEMENT") is entered into by and between the City of
The Colony, Texas ("CITY") and the Tribute Homeowners Association ("THOA") by
and through their duly authorized representatives.
W!TNE~~ETH:
WHEREAS, Tribute is a master planned development consIstmg of several
subdivisions located within the City of The Colony which has common areas and private
streets maintained by its Homeowners Association as provided in the plat records of the
City of The Colony, filed in the Deed Records of Denton County, Texas, (hereinafter
"DEVELOPMENT"); and
WHEREAS, Tribute will cause to be constructed or has caused to be constructed
stormwater and surface drainage and detention facility ("IMPROVEMENTS") within
said DEVELOPMENT; and
WHEREAS, the maintenance on portions of the IMPROVEMENTS shall be the
responsibility of THO A, at the sole expense of the THOA; and,
WHEREAS, the CITY reserves the right to perform maintenance tasks at the
expense of the THOA when it is determined by the City Engineer that the immediate
health, safety or welfare of the public may be jeopardized; and
WHEREAS, the CITY and THOA desire to enter into a maintenance agreement
to provide for the IMPROVEMENTS in the DEVELOPMENT, including but not
limited to the maintenance of the IMPROVEMENTS in the DEVELOPMENT as
depicted on Exhibits A, Band C, which are attached hereto an incorporated herein;
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:
1.00 THOA ResTJonsibilities. THOA shall be responsible, at its sole costs, for the
maintenance, inspection and repair for all landscape, natural areas, drainage channels and
detention facilities and all structures inside the designated areas outlined in Exhibits A, B
and C, which are attached hereto and incorporated herein by reference, unless specifically
excluded as set forth in Section 2.00 of this Agreement, which are as follows:
1.01 THOA shall be responsible for the mowing, irrigation and landscape
maintenance of all the highlighted areas depicted on Exhibits A, Band C at a
maintenance level equivalent to or that exceeds property maintenance and landscape
standards as provided in the City of The Colony Code of Ordinances. This includes
maintenance of the well and appurtenances, well water distribution system of nonpotable
water supply for the irrigation system and pond retention levels, irrigation system,
channels, slough and drainage areas, and removal of vegetation or other natural or
manmade obstructions that affect the designed hydraulic function of the drainage system.
1.02 THOA shall be responsible for the maintenance, inspection and repair of
all retaining walls located in the areas as depicted on Exhibits A, Band C.
1.03 THOA shall be responsible for maintenance of all slopes, gabions and
drainage channels that exhibit erosion, sloughing, and/or failure exceeding the designed
3: 1 slope and/or that cause to fall below normal pool and 4: 1 slope above normal pool.
1.04 THOA shall be responsible for the monitoring and removing of sediment
accumulation within the retention ponds including inspecting, monitoring and
maintaining dams/weirs within the common areas subject to this Agreement that are not
specifically identified as the responsibility of the CITY in Exhibits A, Band C.
1.04.1 Monitorinz Sediment Accumulation and Removal in Channels/Ponds,
Inlet an Outfall Headwalls and Drain Lines.
(A) After 85% of the subdivision is built out, all storm outfalls into the
ponds will be monitored annually for silt build-up within the downstream sections
of the drainage system and at each headwall so as to identify a build-up that
would materially affect the hydraulic design on the storm system. The first review
of the system shall be made prior to the release of a Certificate of Occupancy for
any home on a lot adjacent to a channel. A second review shall be made at the
individual storm system outfalls into the channels at approximately 85% build out
in the drainage basin contributing to the individual storm systems. The results of
the reviews shall be submitted to the CITY for acceptability.
(B) THOA will cause the removal and disposal of the sediment which
materially impedes the hydraulic design of the storm system outfalls and the
channels. Upon completion, a certification will be issued by THOA to the CITY
stating that the work has been completed to the standards required by the CITY.
(C) If THOA does not submit the required report by the deadline as
specified in item (A) above and upon thirty (30) day written notice such report is
not submitted to the CITY, then the CITY may have the drainage system(s)
inspected or surveyed and THOA will be solely responsible for payment of those
costs for the inspection or survey.
(D) If THOA does not remove the sediment by the deadline as
specified in item (B) above and upon ninety (90) day written notice the sediment
is not removed, then the CITY may remove the sediment and THOA will be
solely responsible for payment of the costs of such removal and disposal.
MAINTENANCE AGREEMENT - Page 2
TM 31648.76.000
1.04.2 Inspect, Monitor and Maintain Dams/Weirs
(A) THOA will conduct visual inspections monthly.
(B) In addition, the THOA will retain a registered professional
engineer with experience in hydrology, impoundment of water and dams to
perform a visual inspection of the structures for which THOA is responsible and
provide a written report regarding the condition of each dam/weir and any
recommended maintenance or repairs that might be required. This inspection will
be conducted every three (3) years beginning in 2010 and continuing through
2020. Thereafter, beginning in 2020, such structural inspection and report shall
be conducted every five (5) years. Results of the inspection will be provided in
writing to the CITY on or before October 1 of the year the report is due.
(C) THOA will make all necessary repairs recommended by the
engineer on the schedule proposed by the engineer. Plans for all repairs will be
prepared by a licensed engineer and approved by the CITY prior to construction.
Inspection fees must be paid prior to plan approval and the project must meet all
CITY ordinances. THOA must obtain such permits as may be required under
federal, state and local law.
(D) If THOA does not submit the required inspection report by the
deadline as specified in subsection (B) of this section and upon 60-day written
notice such report is not submitted to the CITY, then the CITY may have the
inspection conducted by a registered professional engineer and THOA will be
solely responsible for payment of the costs for the inspection.
(E) If THOA does not conduct the repairs by the deadline as specified
in subsection (C) or as a result of the inspection in subsection (D) of this section
and upon ninety (90) day written notice the repairs are not completed, then the
CITY may perform the repairs and THOA will be solely responsible for payment
of the costs for the repairs.
(F) On a monthly basis and after 5 inches (5") or more of rainfall is
experienced within a 24 hour period, THOA will inspect the trash collection
devices as approved by the U.S. Army Corps of Engineers installed on the
dams/weirs and remove and property dispose of gathered debris. If repairs are
needed to dams and weirs, excluding the drainage assets identified as City
responsibilities in section 2.00, the repairs will be documented and THOA will be
responsible for assuring the that such structures are repaired within sixty (60)
days of notice as provided in subsection 1.04.2 (G). Any rock check dams within
the system will also be checked and maintained by THOA since they are
assisting in limiting sediment and trash accumulation.
MAINTENANCE AGREEMENT - Page 3
TM 31648.76.000
(G) If THOA does not repair the devices or remove debris and upon a
ten (10) day written notice the repairs and/or debris are not removed, then the
CITY may perform the repairs and/or remove the debris and THOA will be
solely responsible for payment of the costs for such work.
2.00 CITY Resoonsibilities. The CITY shall be responsible to maintain only the
following infrastructure within the bubbled areas depicted on Exhibits A, Band C. Such
responsibilities shall include the following:
2.01 CITY shall inspect, monitor and maintain dam/weir structures and
drainage infrastructure at roadway crossings, concrete drainage pipe, headwalls and
erosion control facilities located at the outfalls. The CITY is only responsible for the
maintenance of these concrete structures, not general sediment removal or grading.
Sediment removal and grading are to be performed by THOA as previously discussed
above.
2.02 The CITY will exercise the valves for the drain lines between each pond
a minimum of once a year and will be responsible for the maintenance of the inlet
structure, outlet structure, pipe, and valve associated with these drains. General sediment
removal will be performed by THOA as previously discussed above.
3.00 Indeoendent Contractor. THOA 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.
4.00 Entire A1!reement. This AGREEMENT is the entire agreement among the
parties with respect to the subject matter covered in this AGREEMENT.
5.00 Governin1! Law. The validity of the AGREEMENT and any of its terms and
provisions, as well as the right sand 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.
6.00 Recitals The recitals to this AGREEMENT are incorporated herein.
7.00 Severabilitv. 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.
MAINTENANCE AGREEMENT - Page 4
TM 31648.76.000
8.00 Assi1!nment. This AGREEMENT shall be binding upon and inure to the benefit
of the parties hereto, their respective successors and assigns. The DEVELOPMENT
shall be subject to the covenants provided herein and said agreements shall run with, be
for the benefit of, and bind and burden the THOA or its successors and assigns.
9.00 Indemnitv. CITY SHALL NOT BE LIABLE OR RESPONSIBLE FOR,
AND SHALL BE INDEMNIFIED, HELD HARMLESS AND RELEASED BY
THOA 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 THOA 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 HERETO 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 TO THIS AGREEMENT THAT THE INDEMNITY
PROVIDED FOR IN THIS AGREEMENT IS AN INDEMNITY EXTENDED BY
THOA TO INDEMNIFY AND PROTECT CITY FROM THE CONSEQUENCES
OF THOA AS WELL AS THE CITY'S NEGLIGENCE, WHETHER SUCH
NEGLIGENCE IS THE SOLE OR PARTIAL CAUSE OF ANY SUCH INJURY,
DEATH, OR DAMAGE.
10.00 Enforcement. In the event that THOA fails to maintain the 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 Declaration and supplement thereto.
(SIGNATURE PAGE TO FOLLOW)
MAINTENANCE AGREEMENT - Page 5
TM 31648.76.000
EXECUTED this 20th day of October. 2008.
CITY OF THE COLONY, TEXAS
By:
9JcL eLl....
Dale Cheatham, City Manager
ATTEST BY:
EXECUTED this l)( day of N 6\J~-..'o.e..r
,2008.
TRIBUTE HOMEOWNERS
ASSOCIATION
It:
By:
MAINTENANCE AGREEMENT - Page 6
TM 31648.76.000
ACKNOWLEDGMENT
STATE OF TEXAS )
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COUNTY OF DENTON )
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My commission expires:
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ACKNOWLEDGMENT
STATE OF TEXAS )
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COUNTY OF DENTON )
~~~enjwas acknowledged before lI'eJln this (~ day of "}trJ
2008,b ~~behalfofsaid~
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December 09,2011
My commission expires:
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MAINTENANCE AGREEMENT - Page 7
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