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Item 4I City of Southlake, Texas M E M O R A N D U M January 31, 2007 To: Shana Yelverton, City Manager From: Ken Baker, AICP, Planning Director Subject: Authorize the Mayor to approve Tree Mitigation Agreement Action Requested: Approval of a Tree Mitigation Agreement with Berwyn Custom Homes for Lot 5 and Lot 6, Block 1, Miracle Pointe. Background Information: In the month of November 2006, the above referenced development altered trees in violation of approved tree permits or altered trees without a tree permit as required by the city’s Tree Preservation Ordinance 585-B. Based on the requirements of Ordinance 585-B, the applicant is proposing to mitigate the altered trees (based on caliper inches of trees altered). The agreement includes an exhibit (Exhibit A) showing the trees altered in violation of a tree permit and an exhibit (Exhibit B) showing type, location, and number of trees to be replanted. At the January 2, and 16, 2007 City Council meetings, this item was tabled and the applicant was requested to contact adjoining property owners to develop a tree planting plan that would alleviate any of their concerns. The applicant has contacted two property owners and is in the process of contacting the other. The applicant has submitted an updated tree planting plan for lots 5 and 6 block 1 which is part of Exhibit B in this agreement. Financial Considerations: None Legal Review: The City Attorney’s office has created a form agreement meeting the requirements of the Tree Preservation Ordinance to be used for all tree mitigation agreements. Supporting Documents: Attachment 1 – Tree Mitigation Agreement with Berwyn Custom Homes. Staff Contact: Ken Baker, (817) 748-8067 Attachment 1 AGREEMENT This Agreement is entered into by and between the City of Southlake, Texas, a home rule municipality located in Tarrant County and Denton County, Texas (“City”), acting by and Andy Wambsganss, MayorBerwyn Custom Homes through its duly authorized agent, , and Dick McAninch. (“Owner”), acting by and through its duly authorized agent, WITNESSETH UU WHEREAS, on January 18, 2000, the City adopted Ordinance No. 585-B (the “Ordinance”) the Tree Preservation Ordinance, which prohibits the alteration of protected trees without a tree permit, and which imposes a tree replacement requirement for protected trees that are removed or damaged; WHEREAS, on or before November 14, 2006, and without having obtained a valid tree permit to authorize such action, Owner removed five (5) protected trees, with a total diameter of seventy-three (73) caliper inches, from Owner’s property at 2101 Miracle Pointe Drive (Lot 5, Block 1, Miracle Pointe, an addition to the City of Southlake, Tarrant County, Texas) in the City (the “Property”); WHEREAS, the City notified Owner of its responsibility, in accordance with the Ordinance, to mitigate this damage by planting replacement trees sufficient to equal or exceed, in caliper, the collective diameter of the damaged trees; WHEREAS, in order to comply with its acknowledged obligations under the Ordinance, Owner proposes to plant and maintain replacement trees as provided in this Agreement. NOW THEREFORE, the parties hereto mutually agree as follows: 1. The parties agree that the list of the protected trees that Owner destroyed in violation of the Ordinance, attached as Exhibit A and incorporated into this Agreement for all purposes, is correct. 2. Owner acknowledges and accepts its responsibility to plant replacement trees as identified in Exhibit B, attached to and incorporated into this Agreement, and agrees to plant and maintain the trees in accordance with the terms of this Agreement. Each replacement tree shall meet the diameter, height, and species requirements of the Ordinance, and any additional requirements stated in Exhibit B. 3. No Certificate of Occupancy shall be issued for the use of the Property until the Administrative Official, has inspected the Property and certified compliance with this Agreement. 4. Owner agrees that if any tree planted in accordance with this Agreement dies within three years of its planting, Owner shall plant an equivalent tree to replace the one that has died. The replacement tree must be planted within 90 days of the order of the Administrative Official ordering replanting, unless the Administrative Official approves an extension required because of weather or other arboreal considerations. 5. Nothing in this Agreement shall be deemed to apply to any trees other than the five (5) trees depicted on Exhibit A. Owner shall bear full responsibility and liability for any damages, destruction, or alteration (as defined in the Ordinance) to any other trees on its property, whether damaged before or after entering this Agreement. 6. Owner specifically agrees that any obligation imposed by this Agreement shall be binding upon Owner even if Owner sells, assigns, or transfers the Property. If Owner does sell, assign, or transfer the Property, owner shall either obtain the consent of the person to whom the Property is transferred to permit the planting of replacement trees as required by this Agreement, or may instead extinguish its obligation to replant (as set forth in Section 4 of this Agreement) by making payment to the Reforestation Fund for the trees at issue in the amount required by the Ordinance. 7. If Owner fails to plant or maintain trees as required herein or otherwise to comply with the terms of this Agreement, Owner will be responsible for all attorneys’ fees incurred by the City to enforce the terms of this Agreement, in accordance with Section 271.159 of the Texas Local Government Code. EXECUTED THIS day of , 200__. ATTEST: CITY OF SOUTHLAKE Lori Farwell, City Secretary Andy Wambsganss, Mayor OWNER: ______________________________ By: ____________________________ ____________________________ ATTEST: __________________________________________ Notary Public My Commission Expires: ____________________ 3 Exhibit A Property: 2101 Miracle Pointe Drive (Lot 5, Block 1, Miracle Pointe) Owner: Berwyn Custom Homes Trees Removed 4 Exhibit B Property: Lot 5, Block 1 (2101, Miracle Pointe Drive) Owner: Berwyn Custom Homes Required Replacement Trees 5 Property: Lot 6, Block 1 (2508, Miracle Pointe Drive) Owner: Berwyn Custom Homes Required Replacement Trees Notes: 1.All tree planting locations must be approved by the Landscape Administrator/ Administrative Official. 2.All replacement trees must meet the diameter, height, and species requirements of the Ordinance. 6