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HomeMy WebLinkAboutMiscellaneousI F° L ~,TIOn . . MEMORANDUM TO: Planning & Zoning Commission FROM: Veronica J.B. Morgan, Asst. City Engineer DATE: February 29,1996 RE: Brandon Heights Phase II Replat The purpose of this replat into dedicate the existing detention pond and drainage facilities in the subdivision to the City of College Station.. The exterior boundaries are remaining the same and the only change is that those areas thatwere originally called COMMON AREAS are now being designated as a PUBLIC UTILITY & DRAINAGE RIGHT-OF- WAY. There is a slight exception to this at the corner of Honeysuckle and Westchester. The Homeowner's Association desires to retain a small COMMON AREA at this corner for the purpose of maintaining existing signage. As a part of the agreement with the homeowner's association, the City will maintain the structures of the detention facility; however, the City will not accept title to the playground equipment-and our understanding is that it will be removed. There will be an agreement between the City and Homeowner's Association in which it is .stated that the mowing of the area to meet :the City's weed ordinance will be the homeowner's association responsibility. Staff recommends approval. °"~uiiding a fetter City in Partnership with You" • CITY OF COLLEGE STATIQI`I `~ LEGAL DEPARTMENT \ ~ POST OFFICE BOX 9960 1101 TEXAS AVENUE COLLEGE STATION, TEXAS 77842-9960 (409) 764-3507 CE~V~ MAY 3 ~l ~ ~, MEMORANDUM i ~~~ TO: Kathryn Anthony, Asst. Director/Public S ces . Veronica Morgan, Asst. City Engineer FROM: Jan Schwartz, Legal Assistant . SUBJECT: Brandon Heights Phase II ~I DATE: May 29, 1996 I~'' Attached is the License Agreement for Mowing and Maintenance to be signed by the President of the Brandon Hei is Phase II Homeowners': Assocation,'before a Not Public. Pete su ests ~ ni'y gg III , that one of you send the agreement to the association s president with a letter stating that you understand that the re-plat has been approved by Council but that it cannot be filed until the maintenance agreement is signed. Please. return`the original signed copyto me for. filing in the Official Records of Brazos Coun t3' ~,I~ Js Attachment I;I M'~ ~~ ~~ a9 License Agreement for Mowing & Maintenance This License Agreement for Mowing & Maintenance is made. this day of 1996,' by and between the City of College Station, Texas, a Texas Home Rule Municipal .Corporation (.hereinafter."the City"), and Brandon Heights Phase II Homeowners' Association, Inc. (hereinafter "the. Association"). WHEREAS, the Association wishes todeed to the .City certain real property that is platted as, and will hereinafter be referred to as, "the Detention Pond," and being described as follows: Being all those certain lots, tracts or parcels of land .lying and being situated in Brazos County, Texas, and `being. the "Common Area and Storm.. Drainage Facility" and the. "50' Common Area and Utility Easement," excluding .the adjoining lot designated as Lot , Block B at the northwest corner of Westchester Avenue and Honeysuckle Lane, all as depicted on that certain re-plat. of BRANDON HEIGHTS PHASE 11 SUBDIVISION, a subdivision of the City of College Station, Texas, according to the plat thereof recorded in Volume ,Page of the Official Records of -Brazos County, Texas; WHEREAS, the City wishes to .accept title to the Detention Pond and all improvements thereto; WHEREAS:, .the. Association has agreed to accept responsibility for the mowing of all areas within the Detention Pond,.: which mowing is necessary to comply with the City's weed ordinance (other than routine drainage .maintenance, which shall remain the responsibility of the City); and WHEREAS, the City wishes to-ensure the Association's fulfillment of this obligation to mow thee. Detention: Pond and comply withthe weed ordinance; NOW, THEREFORE, for and in consideration of the recitations. above and in consideration of the promises and .covenants .expressed below, the parties do hereby agree and covenant as follows: 1. The City will maintain the drainage structures, namely the valley gutters and inlet and outlet structures, including mowing these areas twice per year if needed and other general,'required maintenanceof the drainage structures. 2. .All other. regular mowing .and .landscape maintenance. that may be necessary to comply with the: applicable portions of the City`s weed. ordinance. for the Detention Pond shall be the sole and exclusive responsibility of the Association. Such mowing and other maintenance to include but not be limited to (a) mowing all areas within the Detention Pond, .including but not limited to easements, drainage .areas, and right-of- ways; (b) edging all sidewalks and curbs; , (c} trimming a l grass,.. weeds, or other plant life from and. around the. bases of all fence lines, playground equipment, trees,. and signs; and (d) any other lawn: care maintenance reasonably necessary to retain the general appearance and usefulness of the Detention Pond area and to comply with all applicable provisions of the City°s weed ordinance. ps/05/29/96/brandonk. doc Brandon;Heights Homeowners Association Detention Pond Maintenance Agreement Page 2 of 5 3. The costs of the mowing and ether landscape maintenance required of the Association. under .this License Agreement, including but not limited #o labor, utility operating costs, gasoline, and equipment maintenance,. and the cast of all other operations necessary. thereto, shall be the sole and exclusive. responsibility of the Association. 4. The Association agrees not to damage any improvement or City utility while acting under' this Licensee and to replace or `pay for the cost of repair to any improvement or City utility that is damaged by, or arising out of, the Association's mowing or other maintenance work. The.. cost of repair or .replacement for damage to an improvement or Gity utility to be paid by the .Association under this License Agreement shall be the .City's actual_ repair or replacement costs, exclusive of any overhead, transaction costs, or mark-up, and in no event shall the costs exceed the City's standard, competitively-bid rates forsuch work. 5. The City hereby grants the Association a .revocable license to enter upon the Detention Pond. for-the sole purpose of performing the mowing and other landscape maintenance described in this License. 6. The Association shall not be deemed to have .any franchise or easement under this License Agreement. 7. All notices and documents required pursuant to this License shall be sent and provided to the. parties at the addresses and telephone numbers listed below: Brandon. Heights Phase II Homeowners Association, Inc. Attn: Mark Bayliss, President 3104 Westchester Ave. College Station, Texas. 77845 409}. 696-9747 College Station Public Services Department Attn: Mark Smith, Director 2613 Texas Ave. S.. College Station, Texas 77842-0960 (409) 764-3690 All notices shall be deemed received when mailed with sufficient postage and deposited. in a regular mailbox of the United States Post .Office. The parties may change addresses upon thirty (30) days' written notice sent certified mail, return.. receipt requested. 8. In the event the Association dissolves or for any reason becomes inactive, the responsibilities of the Association pursuant to this License Agreement will become the exclusive responsibility of all homeowners of the Brandon Heights Subdivision as it exists in all phases up to and including Ikhe time dissolution or inactivity. 9. This License shall be filed of record in the Official Records of the Brazos County Clerk, Brazos County, Texas. ps/05/29/96/brandonk. doc Brandon Heights Homeowners Association Detention Pond Maintenance Agreement Page3of5 10. The Association, agrees to and shat indemnify, hold harmless, and defend the City, its officers, agents, employees, and volunteers from and against any and all claims, losses, damages, `causes of action, suits, and liability of .every kind, including but .not limited to all expenses of Litigation,.. court costs, and attorney's fees, for injury to or death of any person, for damage to any property, or for any breach of contract that arises out. elf or in .connection with the Association's mowing. or other maintenance work to be performed .under: this License. Such indemnity shall apply where the claims, losses, damages, causes of action, suits, or Liability. arise in whole or in part from the negligence of the City, except that such indemnity shall not apply where the claims, losses, damages, causes of action, suits, or liability arise in whole or in part from the. gross negligence or willful 'misconduct of the City. 11. By this License, the. City .does not consent to litigation or .suit and expressly revokes any consent to litigation that it may have granted by the terms of this, or any other, Agreement, .any charter, or applicable State law. The Association assumes full responsibillity for the work to be performed hereunder and hereby releases, relinquishes, au~d' discharges the City, its officers, agents, employees, and volunteers :from all claims, demands, suits,.. and causes of action of every. kind antl character, including the cost of defense thereof, for any breach, injury,. or death of any person: (whether they be either of the parties, their employees, or other third parties) and any loss of or damage to any property (whether property of either of the pa~~ties, their employees, or other third parties) that is caused by,' arising out of, or im connection with the Association's mowing or other maintenance worK to be performed hereunder. This release shall .apply regardless of whether said claims,..demands,. and causes of action are covered, in whole or in part, by insurance. 12. This License Agreement is made under and shall be governed by the laws of the State of Texas. Venue shall lie in a cmurt of competent jur~sdictior~ in Brazos- County, Texas. 13. In the event. of litigation concerning the rights and obligations created under this License, the non-prevailing party agrees to and shall pay .all of the attorney's fees, court costs, and other litigation costs of the prevailing party. 14. The parties, by #heir signatures,,. acknowledge .that they. have read the entire License Agreement and understand the contents.. They further acknowledge that this License .,Agreement contains all the agreed .:upon. terms between the parties with respect .to the subject. matter, and this License supersedes any and. all prior communications, agreements, or understandings. 15. This _License shall be binding on and shall inure to the benefit of the successors and assigns of the parties hereto. 16. This License mayonly be amendled by a written instrument executed by each of the parties hereto 17. The parties executing this License state that they 'are authorized to sign on behalf of their respective corporations. ps/05/29/96/brandonk. doc Brandon,Heights Homeowners Association Detention Pond Maintenance Agreement Page 4 of 5 18. No waiver or deferral by either party hereto of any term or condition of this License shall be deemed or construed to a waiver or deferral of any other term or condition or a subsequent waiver or• deferral of the same term or condition. BRANDON HEIGHTS PHASE II HOMEOWNERS ASSOCIATION, INC. C1TY OF COLLEGE STATION BY: Mark Bayliss, President BY: Lynn Mcllhaney, Mayor :ATTEST: Connie Hooks., City Secretary APPROVED: George K. Noe, City Manager APPROVED AS TO FINANCING: Glenn Schroeder, Director of FiscaVHuman Resources APPROVED AS TO FORM: Cathy Locke, City Attorney ps/0~/29/96/brandonk. doc °r Brandon Heights Homeowners Association Detention Pond Maintenance-Agreement Page 5 of 5 THE STATE OF TEXAS ) .ACKNOWLEDGMENT COUNTY OF ) Before me, the undersigned authority,. on this day personally appeared Mark Bayliss, the President of BRANDON HEIGHTS. PHASE II HOMEOWNERS ASSOCIATION, INC. known to me to be the person whose name is subscribed to the :foregoing instrument, and acknowledge to me that he executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office on this the day of , 1996. NOTARY PUBLIC in and for the STATE OF TEXAS THE STATE OF TEXAS ) ACKNOWLEDGMENT GOUNTY OF BRAZOS ) Before me, the undersigned authority, on this day personally appeared LYNN McILHANEY, as Mayor of the City of College Station, a Texas Municipal Corporation, known to me to be the person whose name is subscribed to the foregoing .instrument, and acknowledge to me that she executed the same for the .purposes and consideration therein expressed. Given under my hand and seal of office on this the day of , 1996. NOTARY PUBLIC in and-for the STATE OF TEXAS ps/05/29/96/brandonk. doc 0/19/96 m 16:42 $409 764 3496 DEVELOPMENT SVCS ~~~ PARD Post-itm-Fax Note 7671 Dare. pag°os~ To ~ . From Co./Dept. Co. Phone # Phone 9i Fax rr Fax rr C~j 001/001 a~ ~~ The customer at 3104 Westchester, ~ Mrs. Bayliss, has, a concern sne wanjea passed along before the P & Z meeting tonight. This item came up during the course of the survey that Utility Customer Services is conducting for the Budget Office. One question on the survey is: Do you have any other comments you would like to share with the city council or city manager? In response to that question, Mrs. Bayliss raised the following concern: The homeowners assoc. in her neighborhood is trying to give their park area (near Willow Loop drive). to the .city, but the city does not want the playground equipment because. it is deemed infer-ior. Mrs. Bayliss reports .that the equipment. is superior in quality to the equipmentwe have in the other city parks. She is concerned that the city is planning a park just 3 btocks from the Willow Loop park site. To her, this would be a waste of taxpayer money when there is already a park i~ the neighborhood that is being used by a number of persons. Mrs. Bayliss asked if I would be sure to relay her concerns before the meeting. Thank you r~-~ ~ ~ , ~~ ~~s ~. J~~ ~~ -~ CITY aF COLI~C>~ STATIC ~j May 20,.1492 PARKS ~ RECRF~TIOI`I DEPARTMII`i'I' Post Office Box 9960 College Station, Texas 77842 - 09f~0 (4Q9}.764-3713. MEMORANDUM x'p: Jane Kee, Senior Planner FROM: Steve Beachy, Director of Parks and Recreation SUBJECT: PARKIaND DEDICATIOPI RECOMMENDA'I~OPI The Parks and Recreation .Board considered the parkland dedication proposal for Kensington.Subdivision during their regular meeting on May 12, 1992. This same LSSue had been. discussed at Sever2l previous board meetings and a final recommendation is now: complete. The Board`s recommendation to the City Council is to accept the developer's proposal for parkland dedication as submitted_ The total acreage will be determined based upon .actual dwelling units within the development. The.. current estimate is approximately six acres. One key issue in this decision was the anticipated traffic patterns that will occur on Rock Prairie Road once the extension to Wellborn Road is complete. This will effectively isolate those residents south of Rock Prairie Road :from the existing. ten acre Westchester Park. This: decision wilt increase the Ciry's operational and maintenance costs. The alternatives would be to require either cash in Iieu of land or additional parkland adjacent to Westchester Park. 'lhe developer is opposed to these alternatives. The Board further recommended that the developer give the City .additional acreage adjacent. and contiguous to the dedicated parkland for the purpose of construcxion of a storm water detention pond. This. property will be accepted by the City in exchange for unspecified compensation to the City on the part of the developer.. This recommendation is based upon. the belief -that any. such detention facility located adjacent to a neighborhood parkwould, in fact, be used by the'residents as parkland aad expectations concerning the' care and raintenance would be the same as those of the park.. The compensation to the City is to be negotiated with the,, developer and may include iteans such as site workand landscaping on the proposed parkland- Actual details have not been discussed- The Board felt strongly that this particular decision not be construed to be a precedent for acceptance of other drainage facilities for use as parks. They also expressed a willingness to provide comments and support for this decision durrng the City Council meeting when. it is being considered for apptovaL Please feel free to contact me at your convenience should additional information be requited. Copies; Parks and Recreation Board PARD Staff SBSa.I Weprodide9ood things in life.! ~,...,.,....r.~. c'~nC TnT~TtT.7n'T7e~rt oar-n rear any-.f7. or-nT ~air~inT ~. } ®® CITY OF COLLEGE STATIUI`I . ~' ~ P.Ov BOX 9960 1101 TEXAS AVENUE COLLEGE STATION, TEXAS 77842-0690 (409) 7643500 February 5, 1993 MEMORANDUM TO:arks and Recreation Board FRO VViiuu// Steve Beachy, Director of Parks & Recreation SUBJECT: Items of Interest 1. BRANDON ..HEIGHTS HOMEOWNERS REQUEST - I have been contacted by three individuals concerning the recreation facilities located in the Brandon Heights subdivision. This equipment was paid for and installed by the developer'(Myrad Corporation) on land set aside. for a drainage detention facility. This action was not done at the request of the City nor was the equipment installed to meet any City requirements. The parkland requirement for this subdivision was met through the dedication of five acres '~ in Westchester Park. Thin dedication occurred. in 1987 and an additional _, five acres was purchased "fee simple" to create a ten acre .park site. The subdivision was originally .called the "Family .Tree" subdivision. The name was ubsequently changed to "Westchester .Park" subdivision in 1987 when the plat was filed. The subdivision became known as Brandon Heights in 1990. The development .agreement with. Myrad Corporation includes provisions for the perpetual maintenance of the drainage. facilities by the homeowners. The fact that recreation equipment has been installed by the developer does not change this requirement. 1. We do not have the resources to accept responsibility. for this site. Also, we '~ do not want to establish a precedent for., accepting responsibility of similar sites located in other subdivisions throughout town (ie. Woodereek ponds and pool, Emerald Forest tennis courts -and pool, etc.). 2. WINDWOOD RESIDENTS REQUEST - It has been .brought. to my attention that some residents of the Windwood subdivision. are .concerned about the 'i park in their neighborhood. I have not spoken ,with any. of ahem :directly. However, it 'is my understanding that their concerns include the lack of lighting, poor visibility of the. playground from the'. streef and the desire for new equipment. This one acre park was acquired in 1984 and developed the following year. During the design. phase there was strong feelings from the Board to preserve as much of the. native trees and hrubs as possible. -This is'evident from the completed project. The visibility of the site will change when the next phase :of the subdivision is completed. This will include the extension of Brookway` West street adjacent to the north side of the park. Also, one additional. lot :will be "deeded to the '..City. on the west end of the park as part of, the development Home of Texas A & M University. t_ x^ Regular Item Consentltem Statutory Item Item Submitted By: Veronica J B Morgan Asst. City~nc~ineer For Council .Meeting Of: Director Approval: .~j; City Manager Approval: ~~ es Ends Statements /Strategic Issues:#3. Health &',Public Safety. Item:Consideration of a Final Plat of the Brandon Heights Phase 11 Subdivision totaling 4.4 acres and divided into one drainage and utility right-of-way and one common area:(96-207) Item Summary: Beginning in early 1995, the staff met with the Brandon Heights Homeowner's Association, at their request, to discuss an agreement and transfer of the Homeowner's interest. in the detention pond area within the Brandon Height's Subdivision. The purpose of this replat is first to subdivide the corner lot area at Honeysuckle and Westchester; and second, to dedicate the existing detention pond .and drainage facilities in the remaining "Common Area°° to the City of College Station. The exterior boundaries are remaining the same, and .the detention pond area, originally called Common Area, is now being designated as a PUBLIC UTILITY & DRAINAGE RIGHT-OF-WAY and the comer of Honeysuckle and' Westchester is being retained as a COMMON AREA for the purpose of maintaining signage. The existing pond has playground equipment and picnic facilities located within it. In prior discussions, staff has stated that. the City will not accept title to the playground equipment because of the liability issues and the unfunded maintenance costs. Originally, there was discussion about the immediate removal of the equipment, but staff agreed to leave the equipment there until it poses a problem, at which time it will be removed.. The aesthetic mowing maintenance of the facility will remain the same and will be defined within a .:maintenance agreement between the HOA and the City. This maintenance agreement will need to be executed and .filed for record prior to or concurrently with the filing of the final plat. This filing will assure that'the'responsibility fore mowing maintenance will remain with the HOA despite the transfer of property '...ownership. Financial Summary:N/A Staff Recommendation:Approve the final plat with thecondition that the. maintenance agreement be executed. and filed either prior to or concurrently with the final plat. City Attorney Recommendation:N/A Council Action Desired:Approve the final plat. Supporting Materials: 1. Staff Memo 2. SAM 3. Letter from Pete Shively to David Zuberer 4. Detention Pond Maintenance.Agreement ~~~ CITY OF COIdLECE SPT'ATIOI`I Post Office Boz 9960 1101 Texas Avenue College Stat[on, Texas 77842-9960 (409) 764-3500 August 30, 1995 Mr. David Zuberer 704 Honeysuckle Lane . College Station, Texas 77845 IVIr. Frank Hons 703 Honeysuckle Lane College Station, Texas 77845 Re: Brandon Heis?hts -Detention Pond Dear Mr. Zuberer and Mr. Hons: Last Wednesday, .August 23, 1995, I .spoke with Chris. Galindo of the firm of Galindo Engineers & Planners. Mr. Galindo indicated that he had been retained by the .Brandon Heights Phase II Homeowners Association to work on the matter concerning the properly at the northwest corner of Honeysuckle Lane and Westchester Avenue (hereafter the "corner area"). Ivlr. Galindo further expressed two concerns .with the Homeowners' proposed transfer of the detention pond area. First, whether the City would accept a deed to the corner area--or the detention: pond as well.--that was signed by only the Homeowners Association and not by each of the individual property owners? Secondly, Mr. Galindo proposed that as an alternative to re-platting. the corner area, the City accept title to this area and then. grant. the Association an easement for maintenance and access. :A_ lthough I had already considered (once) ire issue of what entity or entities could execute the deed transferring the property to the City,: I have reviewed this issue once more since speaking to Mr. Galindo. Consistent with. my initial determinatiorn, I am comfortable that the Association, and not the individual properly. owners, has title to the detention p®nd area, including the area. at 'the corner of Honeysuckle Lane ~ and Westchester :.Avenue. The_ recorded plat for the subdivision clearly designates the ownership ®f this common area in the Association: "The Common Areas are privately Home. of Texas AF,M Ciniversity Letter to lvlr. David Zuberer and Frank Hoes August 30, 1995 Page 2 owned and maintained by the Homeowner's Association." The detention pond lot, including the .drainage area and. corner area, is designated as a "Common" area. on the plat. In addition, the Association is an actual incorporated entity (unlike some associations), and it is the party against whom the County assesses taxes for the property. Based on the foregoing evidence, then, I am comfortable advising the City that the Association is the owner of the property (though not of the mineral estate, which was severed from the entire subdivision by deed in 1983) and that the City may accept a deed that is executed only by the Association and not the individual owners of each property within the subdivision.. Consistent with the City's practice with respect to other incorporated entities, however,. the .City will require a certified statement that the president of the Association is duly authorized by the Association to execute the deed. As for the. corner area, the easement .alternative proposed by Mr. Galindo is acceptable to the City. Although, I would think that it would be simpler to simply include the maintenance of the sign, landscaping, and any watering system in the maintenance agreement. The Director of Public. Services, Mark Smith, has made clear that he does not want any responsibility for maintaining the landscaping, the:. sign, etc. in this area. Accordingly, and `under any option, we would have to provide a means for. the Association to maintain these structures, As I see it, the options for the Association are as follows. ®ne, if the Association wishes to retain title and access: to the ', corner land and the improvements on it, the Association must subdivide that corner. Two, if the Association wishes to give up title to both the corner Land and the improvements but--as required--retain responsibility for the maintenance of the improvements, the Association may do this either .through the maintenance agreement or as suggested by Mr. Galindo a separate maintenance easement may be;.prepared for the corner area. Third, if the Association wishes to give up title to the .corner land but.. retain title o the. improvements as separate personal property, those structures (presumably the sign and:the watering system, if any) will specifically have to be excluded from the deed, and'the Association will need to obtain City Counsel approval (via an ordinance, and possibly a franchise) for the right to place and maintain privately- owned personal property on publicly-owned real property. Thus:, and so' long as the Association. retains .responsibility for maintaining the improvements in the corner area, .the choice from among the above-listed three options is the Association's. Letter to Mr. David Zuberer and Frank Hons August 30, 1995 Page 3 Please consider the foregoing, review it with the Association's membership, and let Mr. Smith or I know. how you wish to proceed. Sincerely, Pete Shively Assistant City Encl. cc: Mr. Mark Bayliss, President of Brandon Heights Homeowners Assoc. Mr. Iviark Smith, Director of Public Services. Mre Chris Galindo, Galindo Engineers ~ Planners e !• , ti~ ~ e . ~•j CITE OF~ COLLEGE ST~TIOI~I Post pfPlce Bo:9980 1101 Tracts Avenue College 8tatlon, Testis 77B42~8980 (409) 64SSC0 July 27,1995 Mr. David Zuberer 704 Honeysuckle Lane College .Station, .Texas 77845 Mr. Frank Hoes 703 Honeysuckle Lars College Station, Texas. ,77845 ' Re Brandon Heights - DetentiQ~gd Dear Mr. Zuberer andlVir. Hogs: Thank you. for meeting, once again, with Mark Smith and me this last Monday, July 24, 1995. I think that we are making progress, admittedly slowly, toward a final agreement and a transfer of the Homeowners intorest in the detention pond area. Fallowing our meeting, ~I re-ohecked the legal description on the original plat (on file in the .City's Planning Department}. As I explained to Mr. Zuberer on the phone on Tuesday,. I was either completely 'but to lunch" when I first examined this plat or F may have anticipated inserting a roots detailed legal description of the detention pond at a later. date. Either way, and as you quite correctly questioned, the current description-: just "Block B"--is incorrect and would, if employed in the deed, have. the effect of transferring not only the detention pond but also all the home sites on that block to the City. I don't believe that this was anyones intent, and I have changed the legal description on the agreement and in the draft' deed to reflect the exact description of the property as it actually. appears an the plat. Related to the. legal description anti perhaps more .problematic is the fact that the property as currently platted does include the.. land at the northwest comer of Honeysuckle .Lane and Westchester' Avenue. As I understand it, this area is not really part of the drainage area or easement, but it is a "common use" area where the Association currently has some landscaping and subdivision signage in,place. As I explained to Ivlr. Zuberer in our. phone conversation on Tuesday, I have discussed this matter with both lvlr. Smith and the City Engineering Office. Mr. Smith tells me that he is not adverse to the City accepting title to this area as well and that if that occurs, he would not remove or require removal of the signage/landscaping in that area. Rather, he would prefer that it be maintained--as it currently is--by the Homeowners Association. Alternatively, if the Association wishes to retain .ownership of this property, it must be Elome of Tauas ASM Vntversity °~~ Letter to Mr. David Zuberer and Frank Hans July 27,1995 Page 2 subdivided from .the. adjoining "50' Common Area and Utility .Easement". Subdivi .ding the property would require the approval and filing of a rapist of that.. area and, in .this case, the transfer of the detention pond area by a dedication on the revised plat rather than a general warranty deed. The City's Engineering Office has provided me with a rough estimate of what the likely surveying .charge would be to the Association for a surveyor's work on such a rapist: approximately $250.00: Once the new plat is completed by a registered surveyor, it must then be submitted: to and approved by both the. Planning & Zoning Commission and the City Council prior to filing in the land records. With respect to .the indemnity contained in paragraph i l {now paragraph 10), I have compared` this term with the one other comparable maintenance agreement that the City has. with another homeowners association. The other agreement does include indemnity coverage for both the concurrent ("in part") and sole ("in whole") negligence of the City. After discussing this matter .briefly.. with the Senior Assistant City Attorney, we both .agreed that this full indenu~ification--including indemnification for the City's sole negligence--needs to remain a part of this clause. From the City's standpoint, the concern is that the City. could be subject to liability if one of the Association's mowers is injured because of the City's .alleged, or actual, negligent maintenance ofa drainage structure (e.g., he or she. trips and falls due to excess'erosion in or near a drainage ditch}. As with all entities that perform contract work for the City, it is the City's policy that the'contractor assume responsibility.. (by insurance or otherwise} for any injury or damage that arises fiom the work. in addition to providing insurance to cover the mowing work, thee. Association's best protection or limitation on this.. exposure is already provided by the previously agreed to change that. specifically limits .the. indemnification to "mowing or other maintenance work to be performed under this Agreement." Tn' other words, the Association is sot being' asked to indemnify the City for any .injury or damage that occurs because of the City's negligence-only .those arising out of the mowing or other maintenance. Accordingly; ~if a person is injured in the Detention Pond at a time: or in a manner that hasno relation to the Association's mowing or maintenance work, the indemnification contained in this Agreement does not apply. Consistent with the City's other, similar maintenance agreement, however, i have nonetheless modified, somewhat, the indemnification term--in the Association's favor. , I have added a clausethat excludesfromthe scope of the indemnification any liability arising "its whole or in part .from the.. gross negligenc@ or willful misconduct of the ..City:." Thus the indemnification would also sot apply if the City intentionally, or by gross negligence, injured a person that was mowing the area for the Association. The only other change I have made to this term is to add`."and .defend" to the .fast line. This change is not substantive: it is only to clarify that the indemnity includes defense costs--as already stated in the 4th and 5th lines. I have made alI .the other changes that we discussed on Monday. These changes are shown en the "redlined" draft enclosed herewith and encaptioned "Dra,~ A. " .The non-draft copy- • also enciosed'in the event that the Association approves this form--and "Draft A" both include the Association's transfer of the corner land. In the event. that the Association elects to proceed with transferring this progeny, I have also enclosed a draft warranty deed for. your' review. ..... ~..e ..... ... ...e...,~.~.... ~ ~.. , . ....~ .. ....... ~~ I o Letter to Mr. David Zuberer and Frank Hans July 27,1995 Page 3 Finally, the enclosed Draft B excludes the corner land and effects the transfer by means of a repiat of the area. Please review the enclosed 4 ..documents and let me know if you have any further questions or concerns. Thanks again for your assistance and patience in resalving this matter. Since ly, Pete Shively Assistant City Attorney $ncl. cc: lVir. Mark Bayliss, President of Brandon Heights Homeowners Assoc. {w!o enclosures) lvir. Mark Smith, Director of Public Services (w1 enclosures} The customer at_3104 Westchester, Mrs. Bayliss, has_ a concern she wanted passed along before the P & Z meeting tonight.. This item came' up during the course of the survey that Utility Customer Services is :conducting for the Budget Office. One question on the survey is: ®o you have any other. comments you would like to share with' the .city council or city manager? In response to that question, Mrs. Bayliss raised the following concern: The homeowners assoc. in her neighborhood is trying to give their park area (near Willow Loop drive) to the city, but the city does not want the playground equipment because it is deemed inferior. Mrs. Bayliss reports that the equipment is superior in quality to the equipment we have in the other .city parks. She is concerned that the city is planning a park' just 3 blocks from the Wil ow Loop. park site. To her, this would be a waste of taxpayer money when there is already a park in the neighborhood that is being used. by a number. of persons. Mrs. Bayliss asked if I wouldbe sure to relay her concerns before the meeting. Thank,you r~-~ ~ ~ , ~ ~ ~ a ~~s cam- ~. ~~`~ From: Kathryn Anthony To: CITY HALL(VMORGAN) Date; 2/29/96"5a39pm Subject:. staff report.-Replg Add .the following sentence before Staff recommends approval As apart of the agreement with the homeowner's association, the City will maintain. the structures of the detention facility; however, the City will not accept title to the playground equipment. In addition, mowing of the area to meet the City's weed ordinance will also be the homeowner's association responsibiilty. »> Veronica Morgan 02/29/96 05:23pm »> here is the report. just add the few sentences that we talked about.. 1 i V, Fn ~a^o 0 n c ~ rt o ~ ~ ~ ~ ~ ~, ~ ~ ~ ~ ~ ~ ~ n n ~ .~ ~ !r. rt ~ ~ ~ ~ ~ N rt ~ i