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Item 10ACity of Southlake, Texas 1/ 1/ • C E \ It 1/ 1 June 14, 2005 TO: Shana Yelverton, City Manager FROM: Sharen Elam, City Finance Director SUBJECT Approval of Homeowners' Association Rights -of -Way Maintenance Program. Action Requested: Approval of Homeowners' Association Rights -of -Way Maintenance Program for the maintenance of certain improved medians, rights -of way and public property within the Timarron Development. Background Information: Many homeowner associations (HOA) in the city currently maintain certain rights -of -way and other selected areas of public property within their respective developments. This practice originated from developer's agreements that required a level of maintenance higher than what the city could provide. In 2004, the Timarron HOA petitioned the city to help relieve some of these maintenance costs within their development. Because the city cannot afford to maintain these public areas at the level currently provided, city staff worked on some financial alternatives for the HOA. Analysis showed that the city could consider a credit on water invoices associated with these properties. Although initiated by Timarron, the city recognizes that many other HOAs are currently maintaining public rights -of -way. As a result, the city has proposed a city -wide Rights -of -Way Maintenance Program for all HOAs maintaining selected areas of public property within their respective developments. Under this agreement, HOAs will continue to maintain these public rights -of -way near their subdivisions. However, the city will provide equivalency credits for irrigation water used on these public properties. The equivalency calculations found in the proposed agreement clearly show that this will reduce the current costs of maintaining these areas while the Utility Fund will still maintain financial solvency. Financial Impact: Although the agreement increases city costs associated with these properties, it is minimal compared to the alternative of turning complete maintenance responsibility over to the city. Citizen Input/ Board Review: Staff has had several meetings with the Timarron Homeowners' Association Board Members. Legal Review: The attached agreement has been reviewed by the city attorney. Alternatives: The Council may approve it, deny it, or modify it. Supporting Documents: Supporting documents include the following items: • Rights -of -Way Maintenance Agreement with attached exhibits. Staff Recommendation: Approval of Homeowners' Association Rights -of -Way Maintenance Program. RIGHTS -OF -WAY MAINTENANCE AGREEiVfENT This AGREEMENT is entered into this _ day of _ , 2005, by and between the CITY OF SOUTHLA.KE, TEXAS, a municipal corporation (hereinafter referred to as "City "), and HOMEOWNERS' ASSOCIATION, a non - profit corporation ( "Association "), both acting through their duly authorized officers. WITNESSETH: WHEREAS, Association is a non -profit corporation established for the benefit of all owners of real property within the following subdivision, , an addition to the City of Southlake, Tarrant County, Texas (the "Development "}; and WHEREAS, City is the owner of certain improved dedicated streets, medians, rights -of -way and public property, as more particularly shown on Exhibit A attached hereto and made a part hereof (the "Rights -of= Way "); and WHEREAS, for the benefit of the Development and the owners of real property within the Development, Association desires to undertake certain maintenance activities with respect to the Rights -of -Way on the terms and canditions set forth herein; and WHEREAS, City and Association desire to contract for Association to perform certain maintenance activities on and with respect to the Rights -of -Way under the terms and conditions set forth herein; NOW, Tl for and in consideration of the covenants herein, the said parties do hereby agree as follows: Terra A. This Agreement shall commence on the date of full execution hereof and shall remain in effect until _ , 200 (the "Primary Term "). H. Not less than 60 days prior to the expiration of the Primacy Term, Association shall notify the Director of Finance, City of Southlakc in writing of its desire to extend the term of this Agreement. The City and Association may, by mutual agreement and written arnendment extend the Primary Term of this Agreement for an additional one year term (the "First Renewal Term ") upon the same terms and conditions as set forth herein. Not less than 60 days prior to the end of the First Renewal Term, Association shall notify the Director in writing of its desire; to extend the First Renewal Term, The City and Association may, by mutual agreement and written amendment, extend the First Renewal Term for up to three additional one year terms upon the same terms and conditions as set forth herein. Il_ Maintenance Obligations of'Association A. Association, through its contractors, and at its sole cost and expense, shalt furnish all labor, materials, equipment, accessories and setvioes necessary to maintain the Rights-of-Way in a condition and standard equal to or greater than the minimum standards for landscape W: l8outhlakelAgreemantsWtaintenartm .0523b55.dor Page 4 maintenance of Rights -of -Way maintained by the City, as set forth in Exhibit A attached hereto, and subject to any amendments to said minimum standards during the term of this Agreement, B_ Association shall be solely responsible for hiring, paying, managing and directing its contractor. In performing any and all obligations hereunder, the Association's contractor shall be deemed an independent contractor and not an agent, contractor or employee of the City. The City is interested only in the results obtained and not in the methods used in achieving the results. However, prior to the commencement of any maintenance work under this Agreement, City shall have the right to approve any contractor hired by Association. C. Association shall cause to be performed the basic landscape maintenauce services shown on Exhibit B attached hereto. Association may perform services not specifically listed on Exhibit B. Association will notify City in writing if Association determines that any additional services are necessary or advisable. City, at its sole cost and discretion, may perform or arrange for any such additional services, repairs or replacement directly with Association's designated contractor or through third parties chosen by City. III. Water Equivalency Credit- A. City acknowledges, cortihnis and agrees that, but for the Agreement of the Association herein to maintain the Rights -of -Way, the maintenance of the flights -of -Way would be at the sole cost and expense of the City. For and in consideration of the services to be performed by Association, City agrees to provide to Association a water equivalency credit with respect to water used for irrigation of the Rights -of -Way equal to 50 percent of the city's cast per square foot to irrigate city maintained Rights- of-Way based on the then- current City standards for Rights -of -Way water maintenance (the "flights -of- -Way Water Equivalency Credits "). The Water Equivalency Credits shall he based upon the then current applicable City's water rate, as amended from time to time. B. Association agrees to comply with any citywide ordinances, regulations or directives, which limit or restrict water usage to certain hours or days. Further, Association agrees to implement conservation measures as described in Exhibit - C IV. Termination. A. Termination by Association. Upon 30 days written notice to City, Association, may terminate this Agreement if City materially breaches this Agreement and if, during such 30 day period, City fails to either cure or continence and continue reasonable remedial measures. In that event, Association shall be entitled to a proportionate share of the Water Equivalency Credits as determined by the City for all services correctly performed through the date of such notice of termination. W Termination by City. In the event that Association materially btaches this Agreement, City may give Association written notice of the breach, and if Association fails to cure the breach, City may terminate this Agreement upon five [lays written notice to Association. In such event, City shall issue to Association a proportionate share of the Water Bquivaiency W. NSoUlhlakeLAgreemen tslMainienanCe.052306.doc Page 2 Credits as determined by the City for all services correctly performed through the date of such notice of termination. City shall have no further liability to Association. V. Miscellaneous Provisions A_ Association, its representatives, successors, or assigns hereby covenants and agrees that no claim, loss, cause of action, suit or other action for damages resulting from death or personal injury to third party, or damage to personal property belonging to any of the above, and based in any manner upon the landscaping, irrigation, and maintenance of the Rights -of- Way by Association will ever be instituted by Association, its representatives, successors, or assigns against City so long as the Association is responsible for maintenance pursuant to this Agreement, B. ,ASSOCIATION COVENANTS AND AGREES TO INDEMNIFY, AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGEN'T'S, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS AND /OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, O WHATSOEVER KIND OF CHARACTER, WHETHER REAL OR ASSERTED, (INCLUDING, WITHOUT LIIWIITATION, REASONABLE TEES AND EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND OTHER CONSULTANTS), ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE MAINTENANCE, OF THE RIGHTS-OF-'WAY, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES OR INVITEES OF THE CITY, AND ASSOCIATION HERESY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR SUCH CLAIMS OR SLgTS. ASSOCIATION SHALT, LIKEWISE+ ASSUME ALL LIABILITY AND RESPONSIBILITY AND SHALL INDEMNIFY CITY FOR ANY AND ALL INJURY OR DAMAGE TO CI'T'Y PROPERTY, ARISING OUT OF OR IN CONlVEC1'ION WITH ANY AND ALL ACTS OR OMISSIONS OF ASSOCIATION, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, OR TRESPASSERS. C. Association agrees to maintain public liability insurance covering all public risks related to the proposed use and occupancy of public property as located and described in the portion of the Encroachment Area being used by Association for the Encroachment. The amounts of such insurance shall be not less than the following: Property damage, per occurrence $100,000 Personal injury or death, per occurrence $1,000,000 The liability insurance policy shall name City, its employees and officers as additional insareds• Association shall provide to City proof of such insurance coverages_ The amount of all required insurance policies is not deemed to be a limitation on Association's agreement to indernnify and hold harmless City, and in the event Association or City become liable in an amount in excess of W,% SoohlakeVlgreementsWaintemanre. 52305 doc Page 3 the amount or amounts of the policies, then Association must save City harmless from the whole liability. D_ Upon completion, expiration or termination of this Agreement, and at the time of turning maintenance responsibilities over to the City, Association, at its sole expense, shall (1) furnish all labor, materials, equipment, accessories and services to ensure that the Rights of -Way are turned over to the City in a condition equal to or greater than the minimum standards set - forth in Exhibits A and B, as may be amended or revised from time to time, and as required by this A deem ent. E. This Agreement and all requirements hereunder may be modified or amended only by written agreement of the parties. F_ The laws of the State of Texas shall govern the interpretation, validity, performance and enforcement of this Agreement, and Warrant County shall be the exclusive venue for bringing any action to enforce the terms and conditions of the Agreement. G_ if any provision of this Agreement is held to be illegal, invalid, void or unenforceable under present or future laws effective during the term of this Agreement, the legality, .validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby, and in lieu of such illegal, invalid, void or unenforceable provision, there shall be added automatically as part of this Agreerneut a provision as similar in terms to such illegal, invalid, void or unenforceable provisions as may be legal, valid and enforceable. H. All notices under this Agreement must be given in writing by certified or registered mail, addressed to the proper party at the .addresses set forth on the signature page of this Agreement. Any notice required by this Agreemew shall be deemed given and received when deposited in a facility maintained by and under the control of the United States postal Service, postage prepaid, and properly addressed in accordance with this paragraph. Either party may change the person or address to which notices are to be sent by sending written notice of the new designee or address in accordance with the provisions of this paragraph. L Each signatory hereto expressly asserts that he or she has proper authority to enter into this Agreement. 1 Neither party shall assign their interest in this Agreement without the written consent of the other party_ K. The failure of either parry to insist, in any one or more instances, on the performance of any of the terms, covenants or conditions of Us Agreement, or to exercise any of its rights, shall not be construed as a waiver or relinquishment of such term, covenant or right with respect to further performance. W; 1SoLAhlake )AgreementslMaintenance.OMD5.doe Page 4 L. The parties hereto agree that this Agreement was ,jointly drained and that they both had opportunity to negotiate its terms and to obtain the assistance of counsel in reviewing its terms prior to execution, Thus, this Agreement shall be considered neither against not in favor of either party, but shall be construed in a neutral manner. M. The provisions of this agreement, which by their nature are intended to survive the termination, cancellation, completion or expiration of this Agreement, including, but not limited to, any indemnities or any express limitation of or releases from liability, shall Continue as valid and enforceable obligations of the parties notwithstanding any such termination, cancellation, completion or expiration. N. Both parties agree that time is of the essence in the performance of this Agreement. O. This Agreement shall supersede any prior agreements betwetn City and Association relating to the maintenance of Rights-of-Way and to the extent any such agreements exist, they are specifically amended so this Agreement shall be controlling. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above.. ATTEST. CITY OF SOUTHLAKE, TEXAS $y: Lori Farwell, City Secretary Andy Wambsganss, Mayor 1400 Main Street, Suite 400 Southlake, Texas 76208 110MEOMWE RS'ASSOCIATION By: Address for notice: Name of HOA: W- Isw thlake1AgreernerAsWtaintenance .052305 doe Page 5 ACKNOWLEDGET6M NT STATE OF TEXAS COUNTY OF BEFORE ME, the undersigned autbority, on this day personally appeared I known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to mr, that he executed the same for the purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MSC HAND AND SEAL GF OFFICE, this day of 2005_ Notary Public in and for the State of Texas My commission expires. WA Sgulhlake %AgreementaWntenance.a52305.dot Page 6