CM-05-09-176Request for City Council/City Manager Action
City Council lE City Manager
Submit completed form °for. ALL City Manager and City Council approvals,
Department Name:
Contact Person:
For Administration Use ONLY
Tag #:
Documents:
Scan Date:
Return to:
Ric Bowden
Engineering and Developmental Services Project Name: Hesters Crossing Channel Imp
Latha Kumar/Laura Flores
Project Manager/Resource: Danny Harden
Project Coordinator:
Assigned Attorney:
r �
it
Blue Sheet Wording
Barbara B -Wells
September 9, 2005
ContractorNendor: Learning Tree Day School
Funding Source: Regional Detention Funds
Amount: $3,000.00
Action authorizing the City Manager to execute a Settlement Agreement and Release with Learning Tree Day School located at 2106 Rawhide Drive.
Finance Information
Is Funding Required? EM Yes nNo
X
Finance Approval
ElFinance
El Finance
®Purchasing
❑Budget
Initial Construction Contract
Construction Contract Amendment #
Change Order
Change in Quantity
Unforeseen Circumstances
Initial Professional Services Agreement
Supplemental Professional Svcs. Agr. #
Purchasing/Service Agreement
Purchase Order
Item(s) to be purchased:
Amount
Other (Please clearly identify action on lines below)
Settlement Agreement
$ 3,000.00
L. Olsen
N/A E. Wilson
n/A cyd
Date
Date
Date
Date
9/7/2005
9/6/2005
9/7/2005
Pro'ect Mgr. Signature:
City Manager Signature:
Date:
Date:
Date:
Date:
Ft
Updated 6-9-05
Request for City Council/City Manager Action
City Council v City Manager
Submit completed form for ALL City Manager and City Council approvals:
Department Name:
Contact Person:
Engineering and Developmental Services
Latha Kumar/Laura Flores
Project Manager/Resource: Danny Harden
Project Coordinator:
Assigned Attorney:
Blue Sheet Wording
Barbara B -Wells
September 9, 2005
For Administration Use ONLY
Tag #:
Documents:
Scan Date:
Return to:
Ric Bowden
Project Name: P fie�i"efs C(1-0ss� � CLc ,P�rc
R
ContractorNendor: Leaming Tree Day School
Funding Source: Regional Detention Funds
Amount: $3,000.00
Action authorizing the City Manager to execute a Settlement Agreement and Release with Learning Tree Day School located at 2106 Rawhide Drive.
Finance Information W�y
Is Funding Required? 51 I Yes ni No
X
Finance Approval
Finance
Finance
Purchasing
EJBudget
Initial Construction Contract
Construction Contract Amendment #
Change Order #
Change in Quantity
Unforeseen Circumstances
Initial Professional Services Agreement
Supplemental Professional Svcs. Agr. #
Purchasing/Service Agreement
Purchase Order
Item(s) to be purchased:
Amount
Other (Please clearly identify action on lines below)
Settlement Agreement
$ 3,000.00
Date
Date
Date
Date
CS�i�b
i ni i lidlititit, tiiiiiiiietaiiite1
Pro ect Mgr Signature: E° t • Date: I // /c.a
," . a r - Date: 9/i / IDS -
City Manager Signature:
titok c:(
Date: -/ % p%bS
Date:
4.17
Updated 6-9-05
DATE: August 29, 2005
SUBJECT: City Manager Approval - September 9, 2005
ITEM: Action authorizing the City Manager to execute a Settlement
Agreement and Release with Learning Tree Day School located at
2106 Rawhide Drive.
Department: Engineering and Developmental Services
Staff Person: Daniel L. Halden, P.E., City Engineer
Justification: Assist property owner with fence damage caused in part by erosion
of a drainage channel.
Funding:
Cost: $3,000
Source of funds: Regional Detention Funds
Outside Resources: N/A
Background Information:
The drainage channel between the Hesters Crossing Condominiums and Learning
Tree Day Care experienced significant erosion. Learning Tree Day Care claims that
the erosion damaged the day care's wood privacy fence. Upon completion of a recent
channel stabilization project performed by the City, the owner of Learning Tree Day
Care approached the City and asked that the City assist with the replacement of the
day care's existing fence. The day care owner alleged that representatives of the City
prior to the channel stabilization project had informed her that the day care fence
would be repaired or replaced. The owner also claimed that the La Frontera
development had caused the channel erosion. The City was unable to determine if the
fence was damaged solely by erosion of the channel, or if the fence had been
improperly installed or designed, if the fence was just experiencing wear and tear
because of age, or a combination of these. Because City personnel did observe
erosion around some fence posts, it was felt that erosion had played a part in the
deterioration of the fence. Several attempts to correct the channel erosion had been
made by the City and a significant amount of time elapsed until the permanent
stabilization was funded and implemented. During this time, the day care fence had
to be temporarily supported and the day care operated in fear that the fence would
collapse, leaving the play area at the back of the day care area unprotected.
Therefore, in view of the day care's inconvenience of not being able to repair the
fence until the channel stabilization project was completed, that the day care believes
that they had been informed that the City would repair or replace the fence (even
though this could not be substantiated), and, in the spirit of customer relations, it is
recommended that a settlement agreement be executed to bring finality to this issue.
Public Comment: N/A
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release is entered into this day of September, 2005, by and
between the City of Round Rock, Texas, a home -rule municipal corporation ("CORR") 221 E.
Main Street, Round Rock, Texas, and Round Rock Learning Tree, Inc., a Texas corporation d/b/a
Learning Tree Day School ("Learning Tree") 2106 Rawhide Drive, Round Rock, Texas.
WITNESSETH;
WHEREAS, Learning Tree's backyard is adjacent to a drainage channel;
WHEREAS, the drainage channel in the vicinity of the backyard has eroded;
WHEREAS, Learning Tree's fence around the backyard has had some of the fencing
supports undermined and repair to the fence has been hampered because of the erosion within the
drainage channel;
WHEREAS, the area of erosion in the drainage channel has been corrected and the fence
can now be replaced and/or repaired; and
WHEREAS, Learning Tree desires to repair and/or replace the damaged fencing and the
City desires to assist with the cost of the fencing repair and/or replacement;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the adequacy and sufficiency of which are hereby acknowledged, and with the intent to
be legally bound hereby, the parties hereto agree as follows:
1. FENCE REPAIR
Learning Tree agrees that it shall be solely responsible for selecting a contractor and
having the fence along the backyard of the property removed, repaired and/or replaced to
Learning Tree's satisfaction. The City shall inspect such repair solely to determine that the
repair has been completed.
2. REPAIR AMOUNT
Learning Tree shall submit a copy of the final invoice from the contractor detailing the
repairs and/or replacement of the fence, and where necessary, indicating those repairs related
solely to the fence adjacent to the drainage channel. The City agrees that it shall remit to
Learning Tree an amount up to three thousand dollars ($3,000) ("Repair Amount") related to the
repairs and/or replacement of the fence adjacent to the drainage channel within thirty (30) days
upon receipt of such invoice.
00090451 Page 1 of 3
am- 05-a9 - o10
3. SETTLEMENT AND RELEASE OF CLAIM
In consideration of the payment of the Repair Amount associated with repair and/or
replacement of the fence along the back of the property, the receipt of which is hereby
acknowledged and the sufficiency of which may not be challenged, Learning Tree and its
officers, directors, employees, servants, agents, representatives and all persons, natural or
corporate, in privily with them or any of the them do hereby release, acquit and forever discharge
the City and all of its current, former and future officers, directors, employees, servants, agents,
representatives, and all persons, natural or corporate, in privity with them. or any of them, of and
from any and all claims or causes of action of any land whatsoever, as common law, statutory or
otherwise, that Learning Tree has or might have, known or unknown, now existing or that might
arise hereafter, directly or indirectly attributable to the drainage channel erosion
it is expressly understood and agreed that the terms hereof are contractual and not merely
recitals and that the agreements herein contained and the consideration transferred is to
compromise doubtful and disputed claims, avoid litigation, and buy peace, and that no payments
made nor releases or other consideration given will be construed as an admission of liability, all
liability being expressly denied.
Learning Tree warrants that it has read this agreement and fully understands it to be a
compromise and settlement and release of all claims that it has or may have against the party or
parties released, related to the matter described above. Learning Tree represents that it has
carefully read this Settlement Agreement and Release and knows the contents thereof, and
acknowledges that it has had the opportunity to be represented by counsel of their choosing in
connection with all matters relating to this Settlement Agreement and Release and that it is
signing this of its own free will and without reliance on any representation of any kind or
character not expressly set forth herein.
GOVERNING LAW
This Settlement Agreement and Release shall be construed and interpreted in accordance
with and governed by the laws of the State of Texas, without regard to choice of law principles.
Venue shall be in Williamson County, Texas.
IN WITNESS WIIEREOF, the parties hereto have caused this Settlement Agreement
and Release to be executed as of the day and year first above written.
ROUND ROCK LEARNING TREE, INC, CITY OF ROUND ROCK, TEXAS
By
Title: President
Settlement Agreement and Release Learning Tree (000133540-2)1}0C
06/21/2005 15:59 FAX 5122185563
Nuse
Title: T ity Manager
CORR PUBLIC WORKS
Mtge 2 of :3
Z004
STATE OF LeXAS
COUNTY OF WILLIAMSON
SUBSCRIBED AND SWORN TO before me by Jacquelyn
Learning Tree, Inc., d/bia Learning Tree Day School on this i
,01.4;',•;,, MARIA D. ZUN1GA
Notary Public, State of Texas
My Commission Expires
--1;1;i • ••,*.'. • January 06, 2008
STATE OF TEXAS
COUNTY OF WILLIAMSON
L1111
Notary Public,
reer, Presid
day of
of Round Rock
005.
My Commission Expires:
SUBSCRIBED AND SWORN TO before me by Jim Nuse, City Manager of the City of Round
Rock, on this day of , 2005.
A
SHERRI MONROE
Notary Public, State of Texas
My Commission Expires
MAY 7, 2007
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CoinTission Expires,.
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Danny Halden
From: Jim Nuse
Sent: Wednesday, February 23, 2005 9:01 AM
To: Danny Halden
Cc: Tom Word
Subject: RE: Learning Tree Day Gare Center
5cunds fair tr e.
Original Message -----
From: Danny Heiden
Sent: Tuesday, February 22, 2005 5:07 PM
To: Jirn Nuse
Cc: Tom Word
Subject: beaming Tree Day Care Center
Jim,
I've been talking with Jackie Freer at the Learning Tree Day Care on Rawhide Dr. and she is wanting some help
regarding her privacy fence along the back of the day care center. This property abuts the drainage channel that is
between the day care and the Resters Crossing Condominiums that experienced quite a bit of erosion over the last
couple of years. We completed repairs to the drainage channel this past summer.
Ms. Freer said that she had spoken to a number individuals over the past couple of years (I didn't ask her for names
yet) and she felt tike she had been reassured that her fencing would be repaired when the channel improvements
were completed. I am proposing that we enter into an agreement with the day care in which the City doesn't admit
responsibility but contributes funds for some of the fencing (I don't have a number yet but a couple of thousand
dollars or so?), with the responsibility of the actual fence construction placed on the day care as well as any future
repair, maintenance, etc.
I told Ms. Freer that I would have to discuss it with you to see if the agreement concept was something the City would
consider. If so, 1 would need her to get some fence quotes from three contractors to perform the work so that we
would know the value of the fencing. 1 think that we could use regional funds, as repair of the fence really would have
been difficult until the channel work was completed. I will say that it is unclear to me how much of the fence was
affected by channel erosion and, as I discussed with Ms. Freer, who if anyone is responsible. The agreement thing
seems like a goodwill thing to do. 1 have discussed this with Tom W.
Your input is appreciated.
Danny Halden
1