CM-05-01-009Request for City Council/City Manager Action
Please submit this form when placing items on the council agenda or when submitting an item to the City Manager for approval.
Department:
Contact Person:
Project Name:
ContractorNendor
EDS
Latha (Eric Langhout)
Maintenance. Agreement
Name: Continental Homes
Project Manager/Resource: Eric Langhout
"-aCl ;� 1c
Council Meeting Date: N/A
Funding Source: N/A
Assigned Attorney: Sheets
Amount: N/A (contract, agreement,amendment,change order, purchase order,etc.)
Is Funding Required? Yes
Council Agenda Item Yes
Submission to City Manager - Yes
x
No
No
No
x
x
,93(OF/
(see required signatures below before submission to the City Manager)----
Agenda Wording:
❑ Initial Construction Contract
❑ Construction Contract Amendment
❑ Change Order #
[JChange in Quantity
n Unforeseen Circumstances
❑ Initial Professional Services Agreement
❑ Supplemental Professional Svcs. Agr. #
❑ Purchasing/Service Agreement
❑ Purchase Order
Item(s) to be purchased:
❑ Other (Please clearly identify action on lines below)
Amount
2/9
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Approval of an Easements and Restrictive Covenants Regarding the Maintenance of Drainage Channels
Detention Pond and Wetland for Settler's Overlook and Estates at Settler's Park with
Continental Homes of Texas, L.P.
For Submission to Cit Man er Onl
Project Mgr. Signature: (
Dept. Director Signature: �L� r, t /, Pee:
City
City Attorney Signature:
City Manager Signature:
Finance Approval
0
Date: I -2 5-05
Date: /126 -1o3 -
Da te :
2SJo5Date: /.yr` -dT
Date:
al Approval is required for all items requesting City Manager's approval.
Finance -Date and Signature:
Purchasing -Date and Signature:
Budget -Date and Signature:
g/administration/cmgrcouncil action.xls 11-1-04
DATE:
SUBJECT:
ITEM:
January 25, 2005
City Manager's Approval
Consider action by the City Manager authorizing a
Maintenance Agreement from Continental Homes
regarding the maintenance of the Drainage Channels,
Detention Pond and Wetland for Settler's Overlook and
Estates at Settlers Park.
Department: Department of Engineering & Development Services
Staff Person: Eric Langhout, P.E., Engineer
Justification:
To ensure the Drainage Channels, Detention Pond and Wetland are
maintained in a reasonable condition such that they remain clear of any
brush, debris, trash or other litter that may collect.
Funding:
Cost: Declarant will obtain at least three (3) bids for monitoring and
clearing the Drainage Channels, Detention Pond, and Wetland. On or before
January 30, 2005, Declarant will enter into a maintenance agreement with
one of the bidders and post cash or cash equivalent funds with the City of
Round Rock in an amount equal to two (2) times the annual cost for
monitoring, mowing and clearing of the Drainage Channels, Detention Pond
and Wetland, which will be substantiated by a copy of the then existing
maintenance agreement between Declarant and the third -party maintenance
provider.
Source of funds: Continental Homes of Texas until they transfer this
Declaration to the Home Owners Association.
Outside Resources: N/A
Background Information:
The Channels, Detention Pond, and Wetland for these projects were not built
per the ordinances and standards per the City of Round Rock. These areas
contain jurisdictional waters of the Army Corp of Engineers. To avoid the
long review process of the Corp, the owner decided to build the channel to
keep the 10' jurisdictional water strip intact,.
Public Comment: N/A
11
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REST
2005009767
6 PGS V
DECLARATION OF EASEMENTS AND RESTRICTIVE COVENANTS REGARDING
THE MAINTENANCE OF DRAINAGE CHANNELS, DETENTION POND AND WETLAND
FOR SETTLER'S OVERLOOK AND ESTATES AT SETTLER'S PARK
This Declaration of Easements and Restrictive Covenants Regarding the Maintenance of
Drainage Channels, Detention Pond and Wetland for Settler's Overlook and Estates at Settler's Park (the
"Declaration") is executed this day of_J , y —,-. � , 2004;5 by Continental Homes of
Texas, L.P., a Texas limited partnership ("Declarant"), and is as follows.
RECITALS:
A. Declarant is the owner of approximately 15.2 acres (the "Property") comprising of Lot 1,
Block L (6.76 acres), Estates at Settler's Park Section Three; Lot 41, Block A (4.81 acres), Settler's
Overlook Section One; Lot 48, Block E (1.08 acres) and Lot 47, Block E (.99 acres), Settler's Overlook
Section Two and Lot 30, Block H, Settler's Overlook Section Three. The Property is more particularly
described on Exhibit "A", attached and incorporated into this Declaration by reference.
B. Declarant has agreed to impress the Property with an obligation to operate and maintain
the Drainage Channels, Detention Pond and Wetland within the Property, as provided in this Declaration.
NOW, THEREFORE, it is hereby declared: (i) that all of the Property shall be held, sold,
conveyed and occupied subject to the following covenants, conditions, and restrictions, which shall run
with the Property and shall be binding on all parties having any right, title or interest in or to the Property
or any part thereof, their heirs, successors and assigns; and (ii) that each contract or deed which may be
executed with regard to the Property or any portion thereof shall conclusively be held to have been
executed, delivered and accepted subject to the following covenants, conditions, and restrictions,
regardless of whether the same are set out or referred to in said contract or deed:
1. Drainage Channels, Detention Pond and Wetland. The Drainage Channels, Detention
Pond and Wetland shall be maintained in a reasonable condition such that they remain clear of any brush,
debris, trash or other litter that my collect in the Drainage Channels, Detention Pond and Wetland. In
accordance with Paragraph 2 below, the Drainage Channels, Detention Pond and Wetland shall be
monitored, mowed and cleared on a quarterly basis by the Declarant or the Association (as defined in
Paragraph 4 below).
2. Maintenance of the Drainage Channel, Detention Pond and Wetland. Declarant,
until such time as the obligations under this Declaration are transferred to the Association, shall be
required, at its sole cost and expense, to monitor and clear the Drainage Channels, Detention Pond and
Wetland on a quarterly basis. Mowing of the Drainage Channels, Detention Pond and Wetland shall be
such that weeds and grasses are not allowed to grow taller than 12 inches in height. On or before January
15, 2005, Declarant will obtain at least three (3) bids for monitoring and clearing the Drainage Channels,
Detention Pond and Wetland. On or before January 30, 2005, Declarant will enter into a maintenance
agreement with one of the bidders and post cash or cash equivalent funds with the City of Round Rock
(the "City") in an amount equal to two (2) times the annual cost for monitoring, mowing and clearing of
the Drainage Channels, Detention Pond and Wetland as set forth in such maintenance agreement (the
"Maintenance Bond"). On or before January 30th of each successive year, Declarant (or the Association)
will provide written notice (the "Annual Notice") to the City of the annual costs for monitoring, mowing
and clearing of the Drainage Channels, Detention Pond and Wetland, which will be substantiated by a
copy of the then existing maintenance agreement between Declarant (or the Association) and the third -
party maintenance provider (the "Maintenance Agreement"). In the event the Maintenance Bond
currently held by the City is less than two (2) times the annual costs set forth in the Annual Notice,
Declarant (or the Association) will remit the difference to the City in cash or cash equivalent funds with
CP1
176992-2 11/25/2003
the Annual Notice and the Maintenance Bond will be increased accordingly. If the Maintenance Bond
currently held by the City is greater than two (2) times the annual costs set forth in the Annual Notice, the
City shall remit the difference to Declarant (or the Association) in a timely manner and the Maintenance
Bond will be reduced accordingly.
3. Notice. Employees of the City shall have the right to enter the Property without prior
written notification.
4. Property Owners Association. Declarant contemplates that a property owners
association (the "Association") will manage and administer the maintenance of the Property. In the event
an Association is established for the Property, Declarant will be entitled to assign in writing its rights and
obligations under this Declaration to the Association, which assignment will be executed by an authorized
representative of the Association, provided that: (i) the Association has the power to assess the owners of
the Property for, inter alia, the costs to monitor, mow and clear the Drainage Channels, Detention Pond
and Wetlands; (ii) that the Association assumes the rights and obligations of Declarant hereunder. Upon
any such assignment, Declarant will have no further rights or obligations hereunder. In the event of an
such assignment, Declarant will notify the City in writing, which notice shall include the name of the
Association, its mailing address, the property manager of the Association, if any, and a copy of the
instrument of assignment which complies with the provisions of this Paragraph. The City acknowledges
that upon Declarant's compliance with the terms and provisions of this Paragraph, the Association shall
have the authority to maintain the Drainage Channels, Detention Pond and Wetland and shall be entitled
to pay for the costs and related expenses through assessments levied against and collected from the
owners of all or any portion of the Property.
5. General Provisions.
A. Binding Effect. This Declaration shall inure to the benefit of and be binding
upon the owners of the Property and their successors and assigns..
B. Duration. Unless canceled pursuant to Paragraph 5(J), this Declaration shall
remain in full force and effect in perpetuity.
C. Entire Agreement. This Declaration and exhibits hereto contain all the
representations and the entire agreement between the parties to this Declaration with respect to the subject
matter hereof. Any prior correspondence, memoranda or agreements are superseded in total by this
Declaration and the exhibits hereto. The provisions of this Declaration shall be construed as a whole
according to their common meaning and not strictly for or against the City, the Declarant, or any owner of
the Property.
D. Captions. The captions preceding the text of each section and subsection hereof
are included only for convenience of reference and shall be disregarded in the construction and
interpretation of this Declaration.
E. Governing Law; Place of Performance. This Declaration and all rights and
obligations created hereby shall be governed by the laws of the State of Texas. This Declaration is
performable only in the county in Texas wherein the Property is located.
F. Notices. Any notice to the Declarant, the Association, or the City shall be in
writing and given by delivering the same to such party in person, by expedited, private carrier service
(such as Federal Express) or by sending the same by registered or certified mail, return receipt requested,
with postage prepaid to the intended recipient's last known mailing address. All notices under this
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176992-2 11/25/2003
Declaration shall be deemed given, received, made or communicated on the date personal delivery is
effected or, if mailed, on the delivery date or attempted delivery date shown on the return receipt.
G. Enforcement. If any person, persons, corporation, or entity of any other
character shall violate or attempt to violate this Declaration, it shall be lawful for the City, its successors
and assigns, to prosecute proceedings at law, or in equity, against said person, or entity, violating or
attempting to violate such covenant and to prevent said person or entity from violating or attempting to
violate such covenant. The failure at any time to enforce Paragraph 1 of this Declaration by the City, its
successors and assigns, whether any violations hereof are known or not, shall not constitute a waiver or
estoppel of the right to do so. All of the remedies permitted or available under this Declaration or at law
or in equity shall be cumulative and not alternative, and invocation of any such right or remedy shall not
constitute a waiver or election of remedies with respect to any other permitted or available right or
remedy. Notwithstanding anything to the contrary contained herein, no breach of this Declaration shall
entitle the Declarant or any subsequent owner or all or any portion of the Property to cancel, rescind or
otherwise terminate this Declaration.
H. Excusable Delays. Whenever performance is required hereunder, the party
required to exercise such performance shall use all due diligence to perform and take all necessary
measures in good faith to perform; provided, however, that if completion of performance shall be delayed
at any time by reasons of acts of God, war, terrorism, civil commotion, riots, strikes, picketing, or other
labor disputes, unavailability of labor or material, damage to work in progress by reason of fire or other
casualty, or any other cause beyond the reasonable control of such party (financial inability, imprudent
management or negligence excepted), then the time for performance shall be appropriately extended by
the amount of the delay actually so caused.
I. Modification, Amendment or Termination. This Declaration may only be
modified, amended or terminated upon the filing of such modification, amendment or termination in the
Real Property Records of Williamson County, Texas, executed, acknowledged, and approved by both: (a)
the appropriate Director for the City of Round Rock or a majority of the members of the City Council of
the City of Round Rock; and (b) by the owners of the Property at the time of such modification,
amendment or termination.
Executed to be effective this /7/1/4 day of , , 7 , 20/
DECLARANT:
CONTINENTAL HOMES OF TEXAS, L.P.,
a Texas limited partnership
By: CHTEX OF TEXAS, INC.,
a Delaware Corporation, General Partner
ACCEPTED:
3
176992-2 11/25/2003
By.
Printed Name: 6,r, u.e't�'_` 4�, ri; /7/
Its: Xr'-rc-tr,�
1
CITY OF ROUND ROCK
By:
Na
Title:�(;ITV 111HNHGEKi
THE STATE OF TEXAS
COUNTY OF TRAVIS
,//�/ This instrument was acknowledged before me on the y day of �.-,-tea> ,rn2004. by
!fj rni,LUf 25i 7777,,,45r r �i corporation,
SrGu �� � of CHTEX of Texas, Inc., a Delaware co oration
sole General Partner of Continental Homes of TeaCas, L.P., a Texas limited partnership, on behalf of said
corporation and partnership.
[Sea]
`+:�i"
�!+' '�=, THERESA L. THOMAS
M Y C OMMISSION EXPIRES
?f9F,tit'•; March 1, 2005
STATE OF TEXAS
COUNTY OF TRAVIS §
by
notary Pu. lc, State of Texas
(20 OE'
This instrument was acknowledged before me on the OW day of • , ;OK
of the Ci of Roun. Rock, a
the S� to Texas, on behalf o said'tli
municlpality inp ty
[S
CHRISTINE R. MARTINEZ
MY COMMISSION EXPIRES
August 28, 2005
Exhibit A: Description of Property
AFTER RECORDING RETURN TO:
Robe 1. Burton
Armbrus n & Davis, L.L.P.
100 Con s ' ve., Suite 1300
Aust' , Texas 01
RE TLI,e n) rc
CITY OF ROUND ROCK
ADMINISTRATION
221 EAST MAIN STREET
ROUND ROCK, TEXAS 78664
176992-2 11 /25/2003
C!�s�R``
Notary Public, State of Texas
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PROJECT:
SETTLERS OVERLOOK
L ESTATES AT SETTLERS PARK OVERALL MAP
SHEET:
DRAINAGE EASEMENT EXHIBIT
PREPAKO 6,1
RANDALL JONES ENGINEERING, INC
ENC/NEEATC • PLWNNC • 311RKN.Y
1212 E 6PAKER MAC
A1/5)1A; 1£x725 78752
(512) 876-4722