CM-2023-131 - 6/9/2023FLOODPLAIN CONSENT AGREEMENT
THIS AGREEMENT (the "Agreement") is executed effective as of date of signing by
the last party (the "Effective Date") by and between SILDIL Real Estate Holdings LLC
(hereinafter "SILDIL"), a Texas limited liability company owning property described in
Attachment A, WHITTLESEY LANDSCAPE SUPPLIES & RECYCLING, INC., lessee
and operator on the SILDIL property (hereinafter "Whittlesey"), with its principal place of
business, 110 South Lampasas Street, Round Rock, Texas 78664, and the CITY OF ROUND
ROCK, TEXAS (hereinafter the "City"), a Texas home -rule municipality having offices at
221 East Main Street, Round Rock, Texas 78664.
The City, through the City's Floodplain Administrator, hereby grants Whittlesey
permission to conduct certain operations within the City's Ultimate Floodplain on the north
bank of the Gilliland Creek Channel ("Creek") crossing SILDIL's lot at 3219 South I-35 in
Round Rock, Texas ("Property"). The specific allowable operations at the Property, outlined in
the Safety Plan, attached as Exhibit "A," and incorporated herein by reference for all purposes,
are the storage of mulch and brush, mulching, and transporting of said mulch and brush
materials across the Creek ("Operations"). Permission to perform Operations are subject to the
terms and conditions set forth herein and in the attached Safety Plan (Exhibit "A"). The intent
of this Agreement is to allow Whittlesey to utilize the north bank for Operations as requested,
but only pursuant to the strict protocol set forth herein and in the attached Safety Plan (Exhibit
"A„).
The Terms and Conditions of this Agreement are as follows and subject to strict
compliance by all parties:
I. The City is hereby held released and held harmless from any damage to property,
equipment, human health, and/or human life. Any choice to utilize the low water
Creek crossing is that of Whittlesey and solely at its own risk and liability.
2. The attached Safety Plan (Exhibit "A") is applicable and binding to the
Operations conducted by Whittlesey.
In the event of any conflicts of information between this Agreement and the
Safety Plan (Exhibit "A"), the stricter, strictest requirement shall prevail.
4. In the event Whittlesey fails to comply with any of the terms of this Agreement,
authorization to perform the Operations granted pursuant to this Agreement shall
be subject to revocation by the acting City Manager, or designee. Prior to
revocation of the Operations, the City shall provide written notice to Whittlesey
and SILDIL citing the noncompliant term(s). Whittlesey and SILDIL shall then
have ten (10) days from receipt of the written notice, or longer if mutually agreed
upon by all parties of this Agreement, to correct the cited noncompliant term(s)
of the Agreement. Notice as required by this paragraph must be given by U.S.
certified mail (return receipt requested) to Whittlesey at: Blake Whittlesey, P.O.
N�)-v/
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43
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Box 1 1 19, Round Rock, TX 78680; and to.S4&6 at: Blake Whittlescy. P.O. Box
475, Liberty Hill, TX 78642.
5. The City may at any time during Whittlesey's business hours enter the Property
to inspect the location of the mulch site and any Operations being performed on
the north bank.
6. Whittlesey shall have an executed copy of this Agreement, including all exhibits,
on site and in the possession of a designated responsible party at all times. A
designated responsible party shall be defined for the purposes of this Agreement
as a competent employee of Whittlesey.
7. Due to the north bank area lying within a regulatory floodplain, it must be kept
clear at all times of obstructions, excepting a mulch pile, a mulching machine, a
queue of vehicles dropping of tree cuttings, and a pile of brush dropped off and
queued for active mulching operations. No vehicles, mulch bags, or any other
items whatsoever shall be stored overnight on the north bank, excepting the brush
pile, the mulch pile, the mulching machine, and heavy supporting equipment for
the mulching machine; one (1) excavator and one (1) loader. A traversable path
for vehicles on the north bank to the north emergency egress shall be kept clear
at all times for emergency access.
Whittlesey or SILDIL shall design and construct a temporary detention facility
on the north bank to detain increased runoff from the 1.83-acre area that was
compacted with low PI material in 2022. The temporary detention facility design
must be reviewed and approved by the City's Utilities director or his designee
and will detain water across thel.83-acre area as high on the north bank as
possible to minimize depth and velocity of 100-yr channel flows in the footprint
of the temporary facility.
9. SILDIL agrees to provide an easement reserve of approximately 1.75 acres
(Exhibit "B") on the eastern end of the SILDIL property (16.37- and 3.1 1-acre
tracts) for the City to use as a permanent detention facility. Upon completion of
the permanent detention facility, the temporary detention structure will be
allowed to be removed.
10. The City plans to construct a detention facility in the future to address impervious
cover to be created from the future Greenlawn Boulevard widening capital
improvement project (CIP). In exchange for the easement reserve, the City shall
include sufficient capacity necessary to detain the runoff from the 1.83-acre area
of compacted fill on SILDIL's north bank at no expense.�
to Whittlesey or-9+FAi_., t'�
If the City believes that additional volume for Whittlesey site flows can be
reasonably included in the pond design above and beyond the 1.83-acre detention,
the overage will be noted on the as -built plans for detention volume credit during
any future site development permits on the Whittlesey site. The City agrees to
use its best efforts to provide access to SIDIL's north side property through the
2
City's construction of the detention pond or the anticipated new street for the
development of "The District" project.
11,!exchange for the release of the easement reserve identified in paragraph 9,
4z;�agrees to grant a 1.75 acre storm sewer and drainage easement (Exhibit
5 �l "B") to the City for its permanent detention facility. As City's schedule dictates,
and with Whittlesey's approval to access the property, City will contract with a
licensed surveyor to survey and generate a metes and bounds document for the
drainage easement reserve that shall be fully executed by both parties.
12. Mitigation for the added 1.83 acres of impervious cover by Whittlesey in 2022 is
required to be pennitted by the City, constructed by SILDIL with an approved
inspection by the City to ensure compliance with the permit prior to use of the
north bank as prescribed by the Low Water Crossing Operation and Safety Plan
in (Exhibit "A").
13. The executed Emergency Access Agreement with the northern neighbor is
included as (Exhibit "C").
14. The detention pond easement reserve will expire after five (5) years if no activity
occurs in a good -faith effort during that time by the City to design or construct
the detention facility.
15. The terns of this Agreement may be modilied by written Supplemental
Agreement executed by both parties.
IN WITNESS WHEREOF, the parties hereby execute this Agreement on the indicated dates.
[Signatures on the following page.]
WHITTLESEY LANDSCAPE SUPPLIES & RECYCLING, INC.
By: Blake Whittlese v o OI er ns
Signature:
Date: _O(9l 0�I �.
By: SILDIL Re E ate in LC
Signature: I IS
Title: -MAIA A-Ak--o�
Date: d,-%)
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EXHIBIT "C"
ACCESS ACREEMENT
The parties to this Access Agreement ("AgreentciiC) are 11.11. 3201- 3303 South 135, LLC:
("0%Nncr'), owner of property located at 3021 South Interstate 35. Round Rock. Texas (the
" Pro eny"), and Whitticsey Landscape Supplies R Recycling. Inc. ("Licensee"). owner of
property located at 3219 South Interstate 35. hound hock. 1'exas (the "Northern Gilliland_ Creek.
Site"). which is adjacent to the Property. As used herein. (lie term "Parties" refers to the (h%ncr
and Licensee collectively.
Licensee normally accesses the Northern Gilliland Creek Site ► is a lo►► ►►ater crossing
across Gilliland Crcck. and desires access to the Property so that it has an emergency ingress and
egress route in the event of a flood (such an event. an " Frncr�,cncti "). Therelore. in COD side rat it) n
of Ten Dollars (S 10,00) and other good and ►aluable consideration. the receipt and su1'ticie11c► of
which is herchy acknowledged. the Parties agree as follows:
I . Subject to the terms of this Agreement. Owner grants Liccnsec and Licensee's contractors,
subcontractors, representatives. and customers (collectively, the " Licensee Parties') access to
(he Property in the event of an Emergency commencing upon (he mutual czecution of this
Agreement.
?. O►►net- agrees to provide the Licensee Parties access at the general location identified on
Attachment A. Licensee will provide it suitable road base material litr ►chicle wing the
emergency access. and will ntaintain a gate at this location that ►►ill remain locked at all times
except in the e►cnt ofan lattergencw where access to the Property is required.
3. Licensee \%ill procure and maintain commercial general liability insurance in a minimum
antotntt of S 1.000.000 I)cr occurrence and not less than S5010,000 in the general aggregate.
4. INDE-I 1NI11C'A1 ON Of- OWNFR BY lJCN.NSFF. FROM AND A TFR THE
1 FITCI'IVE DATE 01: THIS AGREEMENT. l ICFNSFF WILL INDEMNIFY, INTEND
AND HOLD MVNER AND 1TS AFFILIATES. AND THEIR RESPECTIVE OFFICERS,
DIRECTORS. RF.PRFSENTATIVIS. SIIAREHOLDE:RS. NIFMBERS. MANAGERS.
PARTNERS. CON I RACI'ORS. AGENTS AND EMPLOYFFS (COLLEICTIVI I N'. "l'I II..
"OWNER PARTIES.) IIARMLTSS FROM ANY AND ALL LIABILITIES. LIENS,
CLAIMS. FINIS. PE.NALTIFS. Olt DANIM&S (INCLUDING 'I'lW REASON,WLF
C'(.)S'I S AND FXPI:NSIS INCLUDING A'ITORNEW FEES OF DEFE.NDIN(i SUCH
CLAIMS) -1'0 111E FXTENT ARISING OUT OF OR AS A RESULT OF USE; OF "1'11F
A('(.'I•'SS BY LlCFNSEl: OR TllE OT11FR LIUNSEIi PARTIES UNDER THIS
AGRF,I;.Ml..Xl'. Licensee will he given prompt written notice of any claims or liability
EXHIBIT 11C"
recci►ed from Ihird parties. Owicr %till cooperate wish Licensee hi dcicnding or resisting such
chain),. The indelllllil% in this section ►%ill survive the termination of'lhis Agrecnicnt.
5_ Unless pm%ided othenrise in this Agreement. all notifications. requests and correspondence
pursuant to this Agreement %%ill Ile directed via c-mail followed by either mailed notice sent
certified maul return receipt requested or by a national o%ernight deli%cry %cr%ice. %►Mich
mainiains deli%cr% records;
As to Owner: 11,11. 3201-3203 South 135. LLC
ceo 1311 Properties
I I I I 1 Sanla Monica Blvd.
Suite 600
Los Angeles, CA 9002.5
Attn. Arsalan Goxini
accountingir:bhprolkrties.com
As to Licensee: Whittlesey Landscape Supplies die Recycling. Inc.
Attn: Blake Whitliesey
V icc President of Operations
3219 South Interstate 35
Round Rock. Texas 78064
(512)989-7625
blake. %% hittlesetid989rock.coln
Am Part% ma% from tinlc to time change the conwel to whom notice under this Agreement
should he directed. h% pro%iding written notice In the; other.
G. Fach of the undersigned represents and %%arruiits that it is authorised to exce►ite this
Agreement on hehall`oflhe respecti%e Party to this Agreement and that this Agreement. %%hen
executed h% all Parties. %%ill be enfivecahlc consistent %%ith its terms.
7. Phis Agreement ma% he executed in multiple counterparts. each of ►%hick skull he decnled to
he in original and of equal force and effect and all counterparts together shall constitute the
Agreement.
S. 'I his Agreement may be modified only: by (lie written agreement ofthe Parties. %%ith notice to
the Cit% of Round Rock.
{t This Agreement conlains the entire understanding of the Piirtics. '1116L AgreCtlltnl SUIWP CdC�
all prior dtscus%ictm hemeen the Parties %%ith respect to the suhicei matter licrco :
I(I, Notwithstanding anything herein to the contrary. this Agreement in no ►%•a} - limits or alters
any casement rights across the Property
It. This Agreement %%ill be gmented by the ia%%s of the Stale ol` �fexas,
Page 2of4
EXHIBIT licit
12, 1 ibis Afire meat is eflictiy a on the date last %%ritlen below. The Agreement may be tcrmin;ued
by either party upon thirty 04 days written notice to the other parry. and al'tcr notit;e to III,!
City of Round Rocl,. The Agreement %%ill Icrminate thirty (0) days alicr I.icen e
permanrinl% erases use ofthe Northern Gilliland Creek Site for ics business operatiom,
I,ICI:NSEE: Whutlesey l.iindScitpe Supplies & IZccvcling. lllc.
Dale.
I al
OWNER:
11.11. 3021-3203 SOUTH 11135, L LC
;I Calilirrnia limited liability company
By, First American Fwhange Company. I.I.0
a Del.mare limited lialliht% company
It,• Manager
Name: Ilnthun�yi
Its: Senior Vice President
Date: 7/18/22
1011Re` 3 art 4
EXHIBIT "C"
Atluchmew A
Area map shoeing Enicrgency general ingress -egress location .clung the properly line Ilemeen the
I'TopertN and the Northern Gilliland Creek Sitc. ;Normal access to the Northern Gilliland Crock Situ
is pro%idcd N is the LOW Water Crossing across Gilliland Creek.
City of Round Rock
ROUND ROCK
TEXAS Agenda Item Summary
Agenda Number:
Title: Consider executing a Floodplaif, Consent Agreement with SILDIL Real Estate
Holding LLC and Whittlesey Landscape Supplies & Recycling, Inc.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 6/9/2023
Dept Director: M-chael Thane, Director of Utilities and Environmental Services
Cost:
Indexes:
Attachments: LAF - Floodplain Consent Agreement with Whittlesey, AGMT 2023 OS 05
Department: Utilities & Environmental Services
Text of Legislative File CM-2023-131
This Floodplain Consent Agreement between the City or Round Rock and Whittlesey Landscape Supplies &
Recycling grants permission to Whittlesey to conduct certain operations on their property that are located
within the City's intimate Floodplain on the north bank of the Gilliland Creels Channel. Due to this area
being located within the regulatory floodplain, it must be kept clear at all times of obstructions, excepting a
mulch pile, a mulching machine, a queue of vehicles dropping off tree cuttings, and a pile of brush dropped
off and queued for active mulching operations. No vehicles, mulch bags, or any other items shall be stored
overnight on the north bank, except for items as previously mentioned.
Whittlesey shall also design and construct a temporary detention facility on the north bank to detain
increased runoff from 1.83-acre area that was compacted with low PI material in 2022, The temporary
detention fa6lity is required to prevent the potential for downstream flooding impacts and must be
designed to detain water across the 1.83 acre area as high on the north bank as possible to minimize depth
and velocity of 100-year channet flows.
In addition, Whittlesey agrees to provide a permanent easement of approximately 1.75 acres on the
eastern end of their property for the City to use as a permanent detention facility necessary due to the
creation of impervious cover from the future Greenlawn Boulevard widening project. Upon completion of
the permanent detention facility that will be constructed and maintained by the City, the temporary
detention structure on the Whittlesey property will be allowed to be removed due to the City's detention
facility also being sized to include the 1.75. acre area of impervious cover previously added on their site.
City of Round Rock Page 1