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Timarron Owners Association - ROWORIGINAL DOCUMENT CITY OF SOUTHLAKE Council Action: Y / 1 Ord./Res. No. Date Approved -T-d 4- i _�-. RIGHT OF WAY MAINTENANCE AGREEMENT This AGREEMENT is entered into this l �' day of / , 20LA by and between the CITY OF SOUTHLAKE, TEXAS, a municipal corporation reinafter referred to as "City"), and ,'.r_rr tj 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, !r091 'i►'ioa) apt , an addition to the City of Southlake, Tarrant County, Texas (the " evelopment"); and WHEREAS, City is the owner of certain improved dedicated streets, medians, right of way and public property, as more particularly shown on Exhibit A attached hereto and made a part hereof (the "Right 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 Right of Way on the terms and conditions set forth herein; and WHEREAS, City and Association desire to contract for Association to perform certain maintenance activities on and with respect to the Right of Way under the terms and conditions set forth herein; NOW, THEREFORE, for and in consideration of the covenants herein, the said parties do hereby agree as follows: Term A. This Agreement shall commence on the date of full execution hereof and shall remain in effect until such time the City and/or the Association elects to terminate this agreement in writing in accordance with Article IV. Maintenance Obligations of Association A. Association, through its contractors, and at its sole cost and expense, shall furnish all labor, materials, equipment, accessories and services necessary to maintain the Right of Way in a condition and standard equal to or greater than the minimum standards for landscape maintenance of Right of Way maintained by the City, as set forth in Exhibit B 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, but such approval shall not be unreasonably withheld. C. Association shall cause to be performed the basic landscape maintenance services shown on Exhibit B attached hereto. Association may perform services not specifically N:Utilirybilling\HOArightofwaymaintenanceagreements\20111025.doc Page 1 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, confirms and agrees that, but for the Agreement of the Association herein to maintain the Right of Way, the maintenance of the Right 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 Right of Way equal to 50 percent of the city's cost per square foot to irrigate city maintained Right of Way based on the then -current City standards for Right of Way water maintenance (the 'Water Equivalency Credit"). B. The Water Equivalency Credits shall be based upon the then current applicable City's water rate, as amended from time to time and shall be limited to the true realized cost of water purchased by the association from the City of Southlake. The Water Equivalency Credit shall be tied to the individual account associated with this agreement. Credit shall be given on a monthly basis and shall not exceed the monthly billed water consumption for said month or the associated monthly water equivalency credit for that given month, whichever is the lesser of the two. C. 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. D. City's Zoning Landscape Inspector and/or other City designee shall reserve the right to inspect, announced or unannounced, the maintenance services provided by the Association. a. On or about April 1-15 and September 1-15, of each fiscal year, the City shall inspect said maintenance service areas to ensure proper maintenance -'standards have been met. b. A report will be submitted to the City's Finance Department, Utility Billing division, as to the acceptable and/or unacceptable conditions of the Right of Way. C. City shall communicate to the Association, in writing, any unacceptable conditions, with a list of items that fall below the City's minimum standard requirements as well as potential options and improvement deadlines necessary for the Association to remedy. d. Failure of the Association to remedy those identified items falling below the City's minimum standard, may result in the loss and/or forfeiture of water equivalency credits realized during said fiscal year. IV. Termination A. Termination by Association. Upon 30 days' written notice to City, Association N:Utilitybilling\HOArightofwaymaintenanceagreements\20111025.doc Page 2 may terminate this Agreement if City materially breaches this Agreement and if, during such 30 day period, City fails to either cure or commence 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. B. Termination by City. In the event that Association materially breaches 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 30 days' written notice to Association. In such event, City shall issue to Association 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. City shall have no further liability to Association. C. Termination without Cause. Either Party may terminate this Agreement, without cause, by providing sixty (60) days' written notice to the other party. 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 Right 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, AGENTS, 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, OF WHATSOEVER KIND OF CHARACTER, WHETHER REAL OR ASSERTED, (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND OTHER CONSULTANTS), ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE MAINTENANCE, OF THE RIGHT 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 HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR SUCH CLAIMS OR SUITS. ASSOCIATION SHALL LIKEWISE ASSUME ALL LIABILITY AND RESPONSIBILITY AND SHALL INDEMNIFY CITY FOR ANY AND ALL INJURY OR DAMAGE TO CITY PROPERTY, ARISING OUT OF OR IN CONNECTION 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 Association's use and occupancy of the Right of Way. 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 N:UtilitybillingUiOArightofwaymaintenanceagreements\20111025.doc Page 3 The liability insurance policy shall name City, its employees and officers as additional insureds. 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 indemnify and hold harmless City, and in the event Association or City become liable in an amount in excess of 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 furnish all labor, materials, equipment, accessories and services to ensure that the Right 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 Agreement. 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 Tarrant 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 Agreement 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 Agreement 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. I. Each signatory hereto expressly asserts that he or she has proper authority to enter into this Agreement. J. Neither party shall assign their interest in this Agreement without the written consent of the other party. K. The failure of either party to insist, in any one or more instances, on the performance of any of the terms, covenants or conditions of this 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. N:Utilitybilling\HOArightofwaymaintenanceagreements\20111025.doc Page 4 L. The parties hereto agree that this Agreement was jointly drafted 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 nor 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 between City and Association relating to the maintenance of Right 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 SOUTHI AKE, TEXAS ., Alicia Richardson, TR _; Yelverto City Secretary Manager 1400 Main Street, Suite 440 Southlake, Texas 76092 HOMEOWNERS' ASSOCIATION By: Address f�rnotice: Name of HOA: ! i ma roh Page 5 ACKNOWLEDGEMENT STATE OF TEXAS COUNTY OF TARRANT FME the undersigned authority, on this day personally appeared /QR 7'o n✓'e , known to me to be th6 person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same for the purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this JL& day of 20-L?. ELSIE RICE NOTARY PUBLIC ...... ; State of Texas Comm. Exp. 10-16-2012 My commission expires: r Notary Public in and for the State of Texas Page 6 EXHIBIT A RIGHT OF WAY Page 7 x �r � •sb g 5- '1S L Ati y � �gl ...YYP .a .. ri` i 7w g b �' �� < z - - A - c � q ��;"'E f � yr �''����-s.�V�+�.�k-"`w'� ,,� �u�,M1 �� �•c�- . � t Coate 'Pic 1 v. Y �1 4�1 w — F � n.a a� .. 5 ti: °t q, I'll'ir I _ by ; • e +H 1 • 17 III, � - �• a' „ n� %^a ^�� . 'sue • � • j Sa` "'�'�.,, i�r}�•,y,y:a�1 y 't "e�ii}' '�., "e' rf'a'.. '�.°�. . _,. .. .�'%c,�:a..-.ay.SCL'�'n` ±�:�. .t«,x�:tm�:: •".s��"�c �§.,..°�' ai�.?s�.S..:at�f,'�t zi _ ,�.. v k�_, Few ry - t(a �:�ia-�C'ha""mo' � - t �.,-:y�.•t 'a'z�... a 1 AVOa . TC?F,- .� -_- - -- - - -------------- ---- V V. `\�� `�� ,� { � 1 � �� . '. r i ,i iftA:J.. .i..._ .�..._ 77 CITY OF SOUTHLAIE 11 Timarron HOA Equivalency Warwick Way Area N Legend W+ >_ ® Timarron HOA Zones S Parcels Scale -1:840 1 inch = 70 feet 6 s , ��� � « � �� ��\ ��.\�§~ . g�� � �-�2(\. .«.. ... . « \ � � °� t � , -\� \5 ��s` <.;\�,���/\ } 3 4.� ar 1. A,f } • a Z O t,en EXHIBIT B SOUTHLAKE MOWING MAINTENANCE SPECIFICATIONS 1.1 STATEMENT OF INTENT The standards contained herein are the minimum requirements accepted by the City for the services described in the Right of Way Maintenance Agreement. 1.2 SCOPE OF WORK A. Maintenance services shall include but not be limited to mowing, hedging, pruning, edging and bed maintenance of identified areas, Right of Way and medians. B. Maintenance services for all Public Right of Way, medians, and other public areas shall be performed to the standards set herein. Right of Way: Shall mean the area extending from the right or left of the center line of the road bed or paved surface to the nearest property line: that includes, but is not limited to: medians, curbs, sidewalks, retaining walls, drainage ditches, barrow ditches, and any other areas owned, dedicated, used or reserved for public use. Median: Shall mean the center island of the roadway from curb line to curb line plus all traffic triangles. This includes curb and gutter joints where the curb meets the roadway and hardscape areas from end of the grass to the curb. 1.3 MAINTENANCE INSPECTION AND REPORTING A. Inspections Association shall be responsible for inspection of the entire property and for the performance of all services required and referred to in these specifications. The City reserves the right to inspect, either announced or unannounced, the maintenance services provided by the Association. ii. At least twice per year. 1.4 ASSOCIATION'S GENERAL PERFORMANCE Association shall ensure the following: A. Association's Contractor's employees shall be dressed in presentable manner. B. Association's Contractor's employees shall wear safety vests while working in public Right of Way and streets. Page 8 C. Association's Contractor's employees shall operate equipment in a safe and effective manner at all times. All safety switches, guards, and shield must be operable. Vehicles must be licensed and marked with Contractor name. D. The Association and/or its Contractor shall submit immediate notification to the City when a situation or event occurs concerning safety, health or public property damage, or involving issues with electric or water utilities where immediate response is needed. 1.5 MOWING A. Association's Contractor shall remove all trash and litter from the site prior to mowing turf areas. Any debris scattered by the mowing process shall be cleaned up by Contractor prior to leaving the site. B. All mowed areas shall be free of clumped grass cuttings and turf shall be cut in a professional manner so as not to scalp turf or leave areas of uncut grass. C. Areas that are impossible to mow mechanically due to slopes and ditches must be cut with string trimmers or other acceptable methods. 1.6 TRIMMING AND EDGING A. Trimming: shall refer to the use of string trimmers around mowing area obstacles, and includes expansion joints and any other cracks in curbs, sidewalks, driveways and any other hard surface within the mowing area. B. Chemical Trimming: Shall refer to the use of herbicides as an alternate to the physical removal or cutting of plant material. C. Edging: Shall refer to the physical removal of all plant material which encroaches over or onto sidewalks, curbs, steps, driveways, and pavements. Association's Contractor shall not use line trimmers around any trees. The use of non-translocating herbicides to maintain a clear area six (6) inches from the trunks of trees is acceptable. D. Association's Contractor shall use chemical and/or mechanical means to maintain all pavement lines and cracks in a weed free condition. 1.7 WEEDING / CULTIVATING Association's Contractor shall remove weeds as needed to maintain all areas in a weed free condition. Page 9 1.8 HERBICIDES / FERTILIZERS Association's Contractor shall ensure that all liquid herbicide applications contain a water-soluble dye (blue or green) used in strength adequate for visual identification. Care shall be taken to avoid overspray of dyed solutions onto walks, curbs, walls, signs, and other features. Any overspray shall be removed from these areas immediately. 1.9 IRRIGATION INSPECTIONS All irrigation systems covering areas maintained by Association shall be inspected monthly by a Texas Licensed Irrigator. Systems shall be maintained in efficient working order. Association shall assume cost of repairs to system and shall indemnify or reimburse such expenses or costs that result from unauthorized or accidental damage to irrigation system. 2.0 MULCHING Association's Contractor shall mulch all shrub beds to two (2) inch depth in early spring (March) and early fall (October). Mulch is to be spread such that no previously laid mulch is visible and that no bare areas of soil are visible at any time. 2.1 POST SERVICE CLEAN UP A. Association's Contractor shall leave the area with a finished appearance, and pick up and dispose of all trash and debris resulting from maintenance operations. B. Association's Contractor shall remove and dispose of all trash which has accumulated within maintenance areas including ponds and drainage areas. 2.2 PROTECTION AND RESTORATION A. TREES Association's Contractor shall conform to the City's most current Tree preservation Ordinance 585-B. B. EXISTING STRUCTURES AND UTILITIES The Association shall indemnify or reimburse such expenses or costs (including fines that may be levied against the Owner) that may result from unauthorized or accidental damage to all public lines and utility customer service lines in the work area. The City reserves the right to repair such damages that the Association and/or its Contractor may cause, and to collect payment from the Association to cover the cost of repairs. Page 10 C. LANDSCAPE RESTORATION Protection, removal and replacement of existing landscaping will be in accordance with either landscape regulations, zoning requirement and/or most current Landscape Ordinances of the City of Southlake. Page 11 EXHIBIT C CONSERVATION MEASURES Page 12 EXHIBIT C WATER CONSERVATION TIPS • Water in the early morning (before 6 am.) or evening (after 6 p.m.) and do not over -water past the point of run-off. • Install rain sensor switches to prevent watering when it rains • Do not leave controllers on automatic; water only when lawns begin to stress • Inspect system and timer settings on a monthly basis • Use drip irrigation in planting beds when possible • Water the plants and lawn areas — not the street! • Landscape with drought tolerant plants and native trees • Group plants based on similar water requirements • Mulch beds to a depth of 2" with good quality bark mulch to help prevent weeds and retain moisture • Fertilize sparingly with a slow release, balanced fertilizer • Mow turf areas to recommended heights; taller in summer months to shade roots and prevent moisture loss o St. Augustine — up to 3 Y2" to 4" in summer months o Common Bermuda — up to 2 %2" to 3" in summer months o Hybrid Bermudas — up to 2" in summer months • Remember: plants don't waste water, people do!