RESO 2002-12 - Storm Detention PondRESOLUTION NO. 2002-12
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTSVILLE, TEXAS,
APPROVING AND ACCEPTING THE CONVEYANCE OF A STORMWATER
DETENTION POND AS SHOWN ON A MINOR PLAT OF THE ARBORS OF SAM
HOUSTON; AND DECLARING AN EFFECTIVE DATE.
WHEREAS, Gibbs Brothers & Company, L.P. ( "Gibbs ") entered into an agreement (the
"Detention Pond Agreement ") with University House at Sam Houston - Phase II, L.P. ( "Arbors ")
for the maintenance of a stormwater detention pond (the "Detention Pond ") in connection with the
development of the Arbors - Phase II; and
WHEREAS, Gibbs owns the property referred to as the Pond Property in the Detention Pond
Agreement and has granted a Drainage Easement as well as a Maintenance Easement over, upon and
across the Pond Property to Arbors to maintain the Detention Pond; and
WHEREAS, the Detention Pond Agreement provides that Gibbs shall use its best efforts to
enter into an agreement with the City of Huntsville for the City to maintain the Detention Pond in
lieu of Arbors with the costs of such maintenance being allocated in accordance with Section 4 of
the Detention Pond Agreement; and
WHEREAS, Gibbs has requested that the City assume the maintenance of the Detention
Pond and also it is willing to convey the Pond Property to the City provided that the City share in
the maintenance costs since it contributes to the drainage flow; NOW, THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF HUNTSVILLE, TEXAS,
that:
SECTION 1: The City of Huntsville accept the conveyance of the Pond Property known as
Reserve B, as shown on the Minor Plat of The Arbors of Sam Houston - Reserve Lot, City of
Huntsville, Texas, recorded in Volume 3, Page 121 of the Plat Records of Walker County, Texas,
from Gibbs Brothers & Company, L.P. and assume the responsibility of maintaining the Detention
Pond pursuant to the Detention Pond Agreement and the allocation of maintenance costs in
accordance with Section 4 of the Detention Pond Agreement and to the City so that each entity shall
pay one -fourth (1/4) of the maintenance costs. The City Manager is hereby authorized to execute
on behalf of the City of Huntsville such documents approved by the City Attorney and required for
the transfer of the Pond Property to the City and the assumption of the maintenance responsibilities
for the Detention Pond.
SECTION 2: This Resolution shall become effective from and after the date of its passage.
PASSED AND APPROVED ON THIS 7TH DAY OF MAY, 2002.
CITY OF,1JJNTS7ILLE, TEXAS
Danna Welter, City Secretary
APPROVED AS TO FORM:
Paul C. Isham, City Attorney
William B. Green, Mayor
Coy?'
DETENTION POND AGREEMENT
THIS DETENTION POND AGREEMENT (Agreement) is made and entered into as of
the ;24 day of July, 2001 (Effective Date), by and UNIVERSITY HOUSE AT SAM
HOUSTON — PHASE II, L.P., a Texas limited partnership ( "Phase II Owner"), and GIBBS
BROTHERS & COMPANY, L.P., a Texas limited partnership ( "Seller").
RECITALS
A. Seller owns those certain tracts of real property identified as Reserve B (the
"Pond Property "), Reserve D (the "UHB Church Property") and Reserve A (the "University
Property") on Exhibit A attached hereto and incorporated herein for all purposes, located in
Walker County, Texas.
B. On even date herewith, Seller has conveyed to Phase II Owner that certain
tract of real property adjacent thereto and identified as Reserve C (the "Phase II Property") on
Exhibit A, located in Walker County, Texas.
C. Simultaneously herewith, Phase II Owner and Seller entered into that certain
Detention Pond Construction Agreement (the "Construction Agreement "), dated of even date
herewith, by and between Phase II Owner and Seller, whereby Phase II Owner and Seller
agreed to the terms pursuant to which Seller would commit the Pond Property for use as a
stormwater detention pond (the "Detention Pond ") and Phase II Owner would construct the
Detention Pond thereon.
D. Phase II Owner and Seller now desire to set forth the terms and conditions
by which the Detention Pond will be used and maintained, and the allocation of the costs
incurred in connection with same.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which are
acknowledged, Phase II Owner and Seller hereby agree as follows:
1. Easements.
(a) Seller, as the fee title owner of the Pond Property, hereby grants, sells and
conveys to Phase II Owner, its successors and assigns, with respect to the Phase II
Property, and hereby dedicates and reserves unto itself, its successors and assigns,
with respect to the. UHB Church Property and the University Property (collectively, the
"Benefited Properties ") an easement (the "Drainage Easement ") over, upon and
across the Pond Property for purposes of collection and drainage of stormwater runoff
into the Detention Pond to be constructed thereon by Phase II Owner pursuant to the
terms of the Construction Agreement.
(b) Seller hereby grants and conveys to Phase II Owner, an easement on, over
and across the Pond Property for the construction and reconstruction of the
improvements to be placed by Phase II Owner pursuant to the terms of the Construction
Agreement (the "Construction Easement "). Seller also grants and conveys to Phase II
DETENTION POND AGREEMENT Page 1
C:lwwDows\TEMP1oerarmonvo D.Ac erir7.Doc.DOC
Owner, a temporary construction easement lying on, over and across and twenty feet
(20') around the Pond Property for the purpose of facilitating construction of the
improvements within the Pond Property by Phase II Owner, such temporary construction
easement automatically terminating upon Completion.
(c) Seller, as the fee title owner of the Pond Property, hereby grants, sells and
conveys to Phase II Owner or its assigns (as hereinafter provided) an easement (the
"Maintenance Easement") over, upon and across the Pond Property for purposes of
performing its maintenance obligations thereof, as set forth in Section 3 hereof.
(d) Until such time as all of the then-current fee title owners of the Benefited
Properties (each, a "User") execute an agreement to terminate the easements granted
herein, Seller agrees (i) not to construct any improvements on the Pond Property or
otherwise hinder or impede the use of the Pond Property for the Detention Pond, (ii) that
same shall be used solely for the purposes stated herein and (iii) that same shall be sold
or conveyed subject to the terms hereof and the easements granted and reserved
herein.
2. User's Agreement. Each User, including Seller or its successors or assigns, whether
or not it shall be so expressed in any assignment, transfer, deed or other conveyance of an
interest of or right, title and interest in and to any one of the Benefited Properties, by
acceptance of such assignment, transfer, deed or other conveyance, shall be deemed to have
covenanted and agreed to take such actions as are reasonably necessary to cause their
respective property to comply and conform with the plans for the Detention Pond and the
drainage study drafted in conjunction with the plans for the Detention Pond, each of which has
been approved by the City of Huntsville, Texas (the "City"), together with any permits issued to
the User in connection with its drainage improvements utilizing the Detention Pond, including
the construction of any necessary improvements or retaining walls, such that the Detention
Pond, as a whole, will be in compliance with such matters. Additionally, each User shall be
deemed to have covenanted and agreed that the drainage from such party's property shall not
exceed that contemplated in the drainage study issued in connection with the plans for the
Detention Pond. A copy of the approved plans and the drainage study will be made available for
review at all reasonable times at the offices within the City of Phase II Owner, and each
prospective User is hereby notified that review of same is advised.
3. Maintenance of Detention Pond.
(a) Subject to the following provision, Phase II Owner and Seller acknowledge
and agree that from and after completion of Phase II Owner's work pursuant to the
Construction Agreement ("Completion"), Phase II Owner shall be responsible for
maintaining the Detention Pond in good condition, including upkeep, repair and
restoration, and in compliance with applicable laws, permits and regulations
(notwithstanding that Seller, its successors and assigns, shall continue to own fee title to
the Pond Property). The maintenance costs (including reasonable administrative costs)
and the costs of any repairs or replacements or capital expenditures relating to the
Detention Pond and/or any improvements necessary thereto (collectively, "Maintenance
Costs") shall be allocated among the Users and paid for as set forth in Section 4 hereof.
DETENTION POND AGREEMENT
CAvemovagEMPUNTENTtoNrc.a.Acautrerrtooc.DOC
Page 2
(b) Notwithstanding the foregoing, Seller and Phase II Owner agree that Seller
intends to, and shall use reasonable efforts to attempt to, enter into an agreement with
the City whereby the City will maintain the Detention Pond in lieu of Phase II Owner and
Phase II Owner hereby acknowledges and authorizes same and agrees to accept and
join in any reasonable agreement entered into between the parties. If Seller is unable to
obtain such an agreement, then Phase II Owner may attempt to negotiate directly with
the City, and Seller hereby acknowledges and authorizes same and agrees to accept
and join in any reasonable agreement entered into between the parties. In either of
such events, the sharing of the Maintenance Costs shall be allocated in the same
manner as set forth in Section 4 hereof, although the recipient of same shall be the City,
and the rights and remedies of the City shall be as set forth in such separate agreement.
Effective upon the date of such agreement with the City, Phase II Owner shall be
released of all obligations and liabilities in connection with the maintenance, upkeep,
repair or restoration of the Detention Pond as set forth above until such time or times as
said agreement is terminated or no longer in effect.
(c) During the period Phase II Owner is responsible for the maintenance of the
Detention Pond area, Phase II Owner has the right, at any time or times, to hire a third
party (or an affiliate if the costs are not in excess of market related costs) maintenance
company to complete Phase II Owner's maintenance, upkeep, repair and restoration
obligations and to enter into and otherwise modify any agreements for such
maintenance responsibilities with such company. The costs related to the work under
such agreement shall be includable in the Maintenance Costs billed to each User.
4. Allocation of Costs. Phase II Owner and Seller agree that, notwithstanding the size
or acreage of the individual tracts comprising the Benefited Properties, the Maintenance Costs
shall be allocated among the Benefited Properties equally, with one -third (1/3) of such costs
allocated to the UHB Church Property, one -third (1/3) of such costs allocated to the University
Property and one -third (1/3) of such costs allocated to the Phase II Property. Each User shall
pay to Phase II Owner (or the City, as the case may be), such party's share of the Maintenance
Costs (the "User's Reimbursement Share ") within thirty (30) days after receipt of a written
itemized statement setting forth all such expenses along with copies of invoices related thereto,
but as to the University Property, Phase II Owner has agreed to defer collection of, or, in case
the City has accepted such maintenance, to pay on behalf of the University Property, the
respective User's Reimbursement Share as to costs of maintenance and repair, but not for
replacement costs or other capital expenditures, until commencement of construction of
permanent improvements on the University Property. If a User fails to reimburse Phase II
Owner as required above, then Phase II Owner may seek actual damages from non - paying
Users [including, without limitation, interest on such unpaid amount from such due date at the
lesser of (i) 15% per annum, or (ii) the maximum allowable contract rate of interest under
applicable law (as applicable, the "Default Rate of Interest "), together with all costs and
expenses of collection thereof, including but not limited to, reasonable attorneys' fees], but in no
event shall Phase II Owner have the right to seek or be entitled to any other type of damages,
including, without limitation, compensatory or punitive damages. The parties acknowledge that
Phase II Owner's right to receive each User's Reimbursement Percentage is personal to Phase
II Owner (or its assigns thereof) and does not run with the land or to the ownership of the Phase
II Property, but the transfer of the Phase II Tract shall not release defaulting Users from their
continuing obligation to reimburse Phase II Owner for costs accruing prior to such transfer.
DETENTION POND AGREEMENT
CAwoows\TEMPlD mo,.o ro.raninfernn.00c.DOC
Page 3
5. Phase II Owner Default. If Phase II Owner is responsible for the maintenance of the
Detention Pond and if it fails to perform its maintenance obligations hereunder, any User may
provide written notice to Phase II Owner of such failure, and if Phase II Owner does not cure
the failure within thirty (30) days following receipt of notice, then such User may take all action
reasonably necessary to cure the failure and Phase II Owner and the other Users shall
reimburse such curing User for its respective share of those reasonable costs and expenses
incurred in curing the failure of Phase II Owner, such reimbursement being due within thirty (30)
days of receipt of a written itemized statement setting forth all such expenses along with copies
of paid receipts. If a User, including Phase II Owner, fails to reimburse such curing User as
required above, then such curing User may seek actual damages from non - paying Users
(including, without limitation, interest on the unpaid amount at the Default Rate of Interest
together with all costs and expenses of collection thereof, including but not limited to,
reasonable attorneys' fees), but in no event shall any User have the right to seek or be entitled
to any other type of damages, including, without limitation, compensatory or punitive damages.
The parties acknowledge that the curing User's right to receive each User's Reimbursement
Percentage is personal to the curing User (or its assigns thereof) and does not run with the land
or to the ownership of the User's respective property, but the transfer of the User's respective
property shall not release defaulting Users from their continuing obligation to reimburse the
curing User for costs accruing prior to such transfer
6. User's Covenant for Assessment and Default.
(a) Covenant for Assessment.
(i) Each User, whether or not it shall be so expressed in any assignment,
transfer, deed or other conveyance of an interest or right, title and interest in and
to any of the Benefited Properties, by acceptance of such assignment, transfer,
deed or other conveyance shall be deemed to have covenanted and agreed to
pay such User's Reimbursement Percentage, in accordance with Section 4 and
Section 5 above to Phase II Owner, the City or the curing User, as appropriate,
or to an independent entity or agency which may be designated by Phase II
Owner, the City or the curing User to receive such monies (the "Payee ").
(ii) Each Party hereby agrees that this Agreement shall be filed of record
to evidence the covenants contained herein, which shall run with the land of
each of the Benefited Properties.
(b) Continuing Obligation for Payment of User's Reimbursement Percentage .
Each User's obligation to pay its User's Reimbursement Percentage provided for herein
shall be the recourse debt of the particular User for the time period in question as well
as that of any successors or assigns of its interest in the respective tract. No User or
subsequent owner, for any reason may exempt itself from liability for the reimbursement
of Maintenance Costs incurred prior to or during its period of ownership of one or more
of the Benefited Properties. In the event that any reimbursement or part thereof is not
paid when due, such User shall be obligated to pay interest on such unpaid amount
from such due date at the Default Rate of Interest, together with all costs and expenses
of collection thereof, including but not limited to, reasonable attorneys' fees. The Payee
shall have the right to reject any partial payment of any amount due and demand full
payment thereof, or it may, in its sole discretion, elect to accept any such partial
DETENTION POND AGREEMENT
c:\wwoowsvTEMPbEtermonrONDJ EMENT7.00c.DOC
Page 4
payment on account only, without in so doing waiving any rights established hereunder
with respect to any remaining balance due. Each subsequent owner of a respective
tract shall be deemed to have assumed the terms, conditions and obligations hereunder,
specifically including, without limitation, the past due monetary obligation of its
predecessor in title, but no such assumption shall relieve the prior owner of its monetary
obligation hereunder for matters arising prior to the date of the transfer of the respective
tract. - -In the event of any such sale or assignment, it shall be the obligation of the
respective User to disclose to any buyer, successor, assignee, title company designated
to handle such transaction, financing entity or other party to such sale or assignment
any unpaid reimbursement charges, such notice to be given in writing to all parties to
the intended transaction at least fifteen (15) days before that date at which such
transaction is to be consummated. A copy of such notice shall be sent to the Payee at
the same time. Except for expenses accrued during a party's ownership, a User no
longer owning any of the Benefited Properties shall not be liable for reimbursement
charges accruing after the date that such User is no longer the owner of such Benefited
Property.
(c) Estoppel Certificates. Each User covenants and agrees to provide
reasonable estoppel certificates to a User, a transferee or potential transferee of such
User, or a lender of such User, transferee or potential transferee, regarding the
existence or non - existence of any default by such User under the terms or conditions
hereof.
7. No Dedication. This Agreement is not, and shall not be construed, interpreted or
enforced as, a dedication of all or any portion of the Pond Property to public use or to private
use, other than the owners of the Benefited Properties pursuant to the terms and conditions of
this Agreement.
8. Agreement to Run with Land . Except as otherwise expressly provided herein, this
Agreement runs with the land and inures to the benefit of and is binding upon Seller, Phase II
Owner and each User and such party's respective heirs, successors, assigns and any person
or entity acquiring title to the Pond Property or any one or more tracts comprising the Benefited
Properties until terminated by the then - current owners of the Pond Property and all of the
Benefited Properties. Unless and until such termination, such properties shall be held,
transferred, improved, sold, conveyed, used and occupied subject to the foregoing easements
and agreements which shall be enforceable against the parties hereto and their respective
heirs, executors, administrators, successors, whether by purchase, descent, devise, gift, trade
or otherwise.
9. Notices. All notices, requests, approvals, consents, and other communications
required or permitted under this Agreement must be in writing and are effective:
(a) on the business day sent if (i) sent by fax prior to 5:00 p.m. Dallas, Texas
time, (ii) the sending fax generates a written confirmation of sending, and (iii) a
confirming copy is sent on the same business day by one of the other methods specified
below;
(b) on the next business day after delivery, on a business day, to a nationally
recognized ovemight courier service for prepaid ovemight delivery;
DETENTION POND AGREEMENT
C:\wwoowsWEMPberomotrotio.AGREEkerai.Doc.DOC
Page 5
(c) three (3) days after being deposited on a business day in the United States
mail, certified, return receipt requested, postage prepaid; or
(d) upon receipt if delivered by any method other than the methods specified
above.
in each instance addressed to Phase 11 Owner or Seller, as the case may be, at the following
addresses, or to any other address either party may designate by 10 days' prior notice to the
other party:
If to PHASE 11 OWNER: University House at Sam Houston - Phase 11, L.P.
Attn: Mr. Steven R. Utley
3890 West Northwest Highway
Suite 700
Dallas, TX 75220
Ph. no. 214 - 739 -8141
Fax no. 214 - 369 -4130
With a copy to: Munsch Hardt Kopf & Harr, P.C.
Attn: Richard Wilhelm, Esq.
1445 Ross Avenue, Suite 4000
Dallas, TX 75202
Ph. no. 214 - 855 -7500
Fax no. 214 - 855 -7584
if to Seller: Gibbs Brothers & Company, L.P.
Attn: Mr. Ed Sandhop
1118 % Eleventh Street
Huntsville, TX 77320
Ph. no. 936- 295 -3748
Fax no. 936- 295 -0002
With a copy to: Davis & Durham
Attn: William L. Durham, Esq.
1230 Tenth Street
Huntsville, TX 77320
Ph. no. 936- 295 -5751
Fax no. 936- 295 -8537
A future owner of the Pond Property or any one of the Benefited Properties may send notice to
the other parties that it is an owner and provide its address for notice purposes.
10. Entire Agreement. This Agreement embodies the complete agreement between the
parties and cannot be amended except by written agreement of the owners of the Pond
Property and all of the Benefited Properties.
11. Legal Fees. If there is litigation, arbitration, or mediation conceming the
interpretation or enforcement of this Agreement or any portion of this Agreement, the prevailing
DETENTION POND AGREEMENT
cAwoows\ rEmeveTemoano►c.woeemxn.00c.DOc
Page 6
party is entitled to recover from the losing party its reasonable legal fees, court costs, and
expenses.
12. Goveming Law, Place of Performance and Venue . The laws of the State of Texas
govern this Agreement. This Agreement is performable in Walker County, Texas, and Walker
County, Texas, shall be the proper place of venue for all suits brought under or pursuant to this
Agreement. -
13. Counterparts. This Agreement may be executed in several counterparts, all of
which are identical and all of which counterparts together shall constitute one and the same
instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES ATTACHED HERETO]
DETENTION POND AGREEMENT
cAwwoows\ .Ao Yl.00c.00c
Page 7
IN WITNESS WHEREOF, executed thisaday of TUL.L/ , 2001.
Phase 11 Owner:
University House at Sam Houston — Phase II, L.P.,
a Texas limited partnership
By: UHC GP, LLC, a Texas limited liability
company
By:
Name: C. ChristopherIiarnss
Title: Executive Vice President
STATE OF TEXAS §
COUNTY OF a �.I qS §
This document was acknowledged before me on """i1t of q , 2001, by, _
WtSTU -e✓lAA:rrtmo '' V2 of UHC` GP, LLC„ a Texas liability
company, general partner of University House at Sam Houston — Phase II, L.P., a Texas limited
partnership, on behalf of said limited liability company and limited partnership.
da,
N1' P blic for the - to of Texas
Printed Name:
My commission expires:
DETENTION POND AGREEMENT
cAwuioowa\TEmmorremoNeore.mm eeMe ni.00cnoc
Page 8
SELLER:
GIBBS BROTHERS & COMPANY, L.P.
A Texas limited partnership
By: Gibbs Brothers Management Company, L.L.C.,
a Texas limited liability company
STATE OF TEXAS
COUNTY OF WAc4&72-
by This insjumnpt was acknowledged before me on the day of Tut_ � , 2001,
b 'D win/ EI �k&Jb !lop �., i'11 AN of Gibbs Brothe Management
Company, L.L.C., a Texas limited liability company, general partner of Gibbs Brothers &
Company, L.P., a Texas limited partnership, on behalf of such partnership.
SAMUEL P. JOHNSON
Notary PubUc, state of Texas
My Commission Expires 07-29-2002
My Commission Expires:
DETENTION POND AGREEMENT
c: \wraows\ T7.00c.DOc
Page 9
EXHIBIT A
Reserve A (the University Property)
Reserve A, as shown on the Minor Plat of The Arbors of Sam Houston — Reserve Lot, City of
Huntsville, Texas, recorded in Volume 3, Page 121 of the Plat Records of Walker County,
Texas.
Reserve B (the Pond Property)
Reserve B, as shown on the Minor Plat of The Arbors of Sam Houston — Reserve Lot, City of
Huntsville, Texas, recorded in Volume 3, Page 121 of the Plat Records of Walker County,
Texas.
Reserve C (the Phase II Property)
Reserve C, as shown on the Minor Plat of The Arbors of Sam Houston — Reserve Lot, City of
Huntsville, Texas, recorded in Volume 3, Page 121 of the Plat Records of Walker County,
Texas.
Reserve D (the UHB Church Property)
Reserve D, as shown on the Minor Plat of The Arbors of Sam Houston — Reserve Lot, City of
Huntsville, Texas, recorded in Volume 3, Page 121 of the Plat Records of Walker County,
Texas.
DETENTION POND AGREEMENT
c: NRPOR,ai\OAUAsuSTEELF2nos2 6.DOc
DALLAS 277052_6 1904.28
Page 10