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Home My WebLink AboutC2017-088 - 2/9/2017 - NA IRRIGATION METER APPORTIONMENT AGREEMENT BETWEEN THE CITY AND DIAMOND LAKES MASTER ASSOCIATION STATE OF TEXAS § § COUNTY OF NUECES § This irrigation meter apportionment agreement ("Agreement") is entered into between the City of Corpus Christi ("City"), a Texas home-rule municipality acting by and through its City Manager or his designee, and Diamond Lakes Master Association, Inc. ("Association"), a Texas nonprofit corporation, acting by and through its President. WHEREAS, roadway medians and areas were constructed in residential developments and later dedicated as public right-of-ways; WHEREAS, single-meter irrigation systems presently installed within those roadway medians and areas water both public right-of-ways as well as private property managed by the Association; WHEREAS, the water meters and utility accounts serving the combined irrigation system are carried in the name of the Association; WHEREAS, the City is responsible for water consumed on the portions of the medians and areas which are dedicated to the public; and WHEREAS, the City and the Association have agreed to appropriately allocate between them the water consumption expenses associated with the combined irrigation system. NOW, THEREFORE, in consideration of the terms and mutual covenants to be observed and performed in this Agreement, the parties agree as follows: Section 1. Irrigation System. The City and the Association have collectively identified privately-owned property and public right-of-way medians and areas in a residential development managed by the Association in which, via multiple single-metered master landscape irrigation systems ("Irrigation System"), metered water service is provided to both the City's public right-of-way medians and areas ("Irrigated Areas") and to private property managed by the Association. The meters and Irrigated Areas subject to this Agreement are shown in Exhibits "A" and "B." A copy of Exhibit A, which is a location map, and a copy of Exhibit B, which details the proportionate share of the Irrigation System by individual water meter and square footage of land area being served, are attached to this Agreement, and the content of each exhibit is incorporated by reference in this Agreement as if each were fully set out here in its entirety. The Association agrees not to undertake or engage in any enlargement, expansion, reconfiguration, or other modification of or to the existing Irrigation System subject to this Agreement, including the exhibits, except by written amendment to this Agreement. 2017-088 2/09/17 Diamond Lakes Master Assoc. INDEXED Section 2. Apportioned Water Meter Expense. The parties agree that the water utility account and individual meters associated with water being provided to the Irrigated Areas through the Irrigation System is and shall remain under the name of the Association. The Association will be billed its proportionate share of the water utility expense associated with the Irrigated Areas, as detailed in Exhibit B, on or before the due date each month. Payment of the City's proportionate share will be made by the City to the City's Utility Business Office. Proportionate sharing of the water utility expense shall be effective as of April 7, 2014. The City will reimburse the Association amounts paid that exceeded the Association apportionment dating back to April 7, 2014. Section 3. Ownership and Maintenance of Irrigation System. The parties acknowledge that ownership of the Irrigation System including, but not limited to, all computerized and manual equipment, materials, tubing, and sprinkler heads, is and shall remain under the name of the Association. The parties agree that the City bears no cost or expense pertaining to past, current, or future maintenance and maintenance- related improvements or expenses of the Irrigation System, including repair or replacement, in whole or in part, that is incurred by the Association for any reason. Section 4. Term of Agreement. The term of this Agreement continues on an annual basis until (i) the portions of the Irrigation System benefitting the Irrigated Areas have been separately metered by the City, (ii) the Irrigation System is determined by the parties to be permanently non-functional, (iii) the Association determines to undertake the repair or replacement of 50% or more of the existing Irrigation System, or (iv) the City or the Association provides 90 days' written notice to terminate this Agreement. Section 5 Termination. Either party may terminate this agreement by giving at least 90 days' written notice to the other of its intent to terminate this agreement. Such termination may be made with or without cause. During the 90-day period after such notice is sent, the parties shall continue to act toward each other in good faith. Section 6. Notices. Notices required or allowed under this Agreement shall be addressed and sent to the parties as indicated below, unless such address is changed by written notice to such effect, and any notice shall be effective when deposited in the U.S. mail, postage prepaid, certified, return receipt requested. If to the City: City of Corpus Christi Attn: Director, Development Services 2406 Leopard Street Corpus Christi, TX 78401 If to the Association: Diamond Lakes Master Association Attn: Mikki Spruce or current manager 7502 Venice Corpus Christi, TX 78413 Section 7. Contact Information. The City's contact for administration of this Agreement is the Director of Development Services (361-826-3240). The Association's contact for administration of this Agreement is Mikki Spruce, Manager (361-813-1723), • • or the person holding that position in the event of absence or change in position. Section 8. Inspection of Irrigation System. The Association shall be responsible to make periodic inspections of the Irrigation System to ascertain that the Irrigation System is working properly, that all of the irrigation sprinkler heads in the Irrigation System are properly positioned, and to ensure that the portions of the Irrigated Areas are being adequately irrigated. In the event any portion of the Irrigation System including, but not limited to, the equipment, materials, tubing, or irrigation sprinkler heads benefitting the Irrigated Areas is determined by the Association to be in need of repair or replacement, the Association shall notify the City of same within a reasonable time. Should the Irrigation System or any portion of it be shut off either temporarily or permanently for any reason, the Association shall promptly provide notice to the City; however, no notice to the City is required if the Irrigation System, or any part of it, will be temporarily shut off for a period of five (5) consecutive days or less. Section 9. Observance of City Conservation and Drought Management Plan. A. The Association shall ensure that the operation, maintenance, and use of the Irrigation System, including all component equipment and parts, complies with the City's Plumbing Code, plumbing regulations, with the City's Water Conservation and Drought Contingency Plan 2009, which is set out in Chapter 55 of the City Code, and any water conservation plan or policy adopted by the City. B. The Association agrees that all areas served by the Irrigation System shall be subject to any specific directives or orders of the Director of the City's Park and Recreation Department regarding the watering schedules and limitations for City parks. C. Nothing in this Agreement diminishes or cedes the City's right to exercise authority or control over the City's public right-of-way medians and areas that are the subject of this Agreement, and the City retains sole discretion in the selection of any and all plants, landscaping materials, and improvements installed and maintained in the Irrigated Areas, including the right to alter, modify, or discontinue use of any irrigation, landscaping, plants, or improvements within the Irrigated Areas. Section 10. Severance of Mutual Irrigation System. Should the City ever desire to separately meter the portions of the Irrigation System serving the Irrigated Areas from the portions serving the Association's private property, the Association agrees to cooperatively work with the City to establish a separately-metered landscape irrigation system or network of systems. Section 11. Landscaping, Mowing and Ground Maintenance. In regards to medians serviced by meters 1 and 9 as shown in Exhibit A, the Association agrees to keep the landscaping of medians in good repair. The Association agrees to mow and maintain the grounds for the medians serviced by meters 1 and 9 as shown in Exhibit A. The Association will be solely responsible for the costs of landscaping repairs, mowing, and ground maintenance of the medians serviced by meters 1 and 9 as shown in Exhibit A. Section 12. No Third Party Benefit. This Agreement and all activities contemplated or pursued under this Agreement are solely for the benefit of the named parties and strictly not the benefit of any third party. Section 13. No Debt. The Association may not incur any debts or obligations nor make any financial or contractual pledge based on or related to the City's proportionate share of the utility expenses associated with the Irrigation System and credited to the related utility account. Section 14. No Liens. The Association agrees not to permit any mechanic's lien, materialman's lien, tax lien, or any other lien to become attached to the property within and underlying the Irrigation System by reason of any work or labor performed by any mechanic, materials furnished by any materialman, or for any other reason. Section 15. No Waiver of Immunity. No party to this Agreement waives or relinquishes any governmental, official, or other immunity or defense on behalf of itself, its officers, officials, employees, or agents as a result of its execution of this Agreement and performance of the covenants contained in the Agreement. Section 16. Assignment. This Agreement or any rights of the parties under this Agreement may not be assigned by the Association to another person or entity without the written approval and consent of the City's City Manager. Section 17. INDEMNIFICATION. TO THE EXTENT PERMITTED BY LAW, THE ASSOCIATION SHALL INDEMNIFY, SAVE, AND HOLD HARMLESS THE CITY OF CORPUS CHRISTI, ITS OFFICERS, OFFICIALS, EMPLOYEES, AND AGENTS ("INDEMNITEES") FROM AND AGAINST ALL SUITS, CLAIMS, DEMANDS, ACTIONS, LOSSES, COSTS, EXPENSES, LIABILITY, DAMAGES, AND JUDGMENTS RECOVERED FROM OR ASSERTED AGAINST INDEMNITEES FOR ANY AND ALL INJURIES SUSTAINED BY ANY PERSON INCLUDING, WITHOUT LIMITATION, WORKERS' COMPENSATION, PERSONAL INJURY, OR DEATH, ARISING FROM OR INCIDENT TO, BE CAUSED BY, OR BE IN ANY WAY CONNECTED, EITHER PROXIMATELY OR REMOTELY, WHOLLY OR IN PART, WITH THE INSTALLATION, INSPECTION, REPAIR, REPLACEMENT, OPERATION, OR MAINTENANCE OF THE IRRIGATION SYSTEM THAT IS THE SUBJECT OF THIS AGREEMENT. Section 18. Authority to Execute. The person signing this Agreement on behalf of each party represents, warrants, and guarantees that they have authority to act on behalf of the named party to make this Agreement binding and enforceable by their signature. Section 19. Law and Venue. Both parties shall comply with all applicable federal, State, county, and local laws, ordinances, orders, rules, and regulations pertaining to this Agreement and each party's respective performance under the Agreement. This Agreement will be interpreted according to the Texas laws which govern the interpretation of contracts. Venue for an action arising under this Agreement shall lie in Nueces County, Texas, where this Agreement is to be executed and performed. Section 20. Entire Agreement; Written Amendment; Non-Waiver. This Agreement, including any exhibits, represents the entire agreement between the parties and may not be modified by any oral agreements or understandings. Any amendments must be made in writing and signed by both parties. No officer or employee of either of the parties may waive or otherwise modify the terms, conditions, or limitations stated in this Agreement without the express action of the governing body of each party. Section 21. Water Meters Not Subject to Agreement. The water meters identified in Exhibit C are not subject to this agreement. Section 22 Relationship of Parties. Nothing contained in this Agreement shall be construed to create a partnership, joint venture, or a relationship of employment or agency. Section 23. Effective Date of Agreement. This Agreement becomes effective and is binding upon and inures to the benefit of the City and Association, and their respective heirs, successors, and assigns from and after the date of final execution by all parties. ATTACHED AND INCORPORATED BY REFERENCE: Exhibit "A" — location map Exhibit "B" — spreadsheet detailing City's proportionate share Exhibit "C" —water meters not subject to agreement (Signature page follows) EXECUTED IN DUPLICATE ORIGINALS this l IL day of b'1ALL Oi, .7 ATTEST: CITY OF CORPUS CHRISTI )/7 Rebecca Huerta Mark Van Vleck City Secretary Assistant City Manager, designee for the City Manager APPROVED AS TO FORM: Fe 1/1 °i v 2016" IttV)1 tOvV/6C Buck Brice Assistant City Attorney for the City Attorney DIAMOND LAKES MASTER ASSOCIATION, INC. By: Rick Rivera President Date: ,9- l — STATE OF TEXAS § COUNTY OF NUECES This instrument was acknowledged before me on (Q #--day of ice 6i'17(f?}!9 20/7 , 20'.8'by Rick Rivera, President, Diamond Lakes Master Association, Inc., a Texas nonprofit corporation, on behalf of the corporation. —14� Xi/1-e g9/ 7 Notary Public's Sig ature mA` KENE O SAPENTER My Commission Expires 7 ,��`, October 15, 2017 t� to o u / / e / /a /e /e /a a 4,1 a / / a so as • 9 13 LEGEND Meter Number ME 1 2 - 3 ® 4 5 MI 6 ME 7 8 NM 9 10 City Owned • Meter 0 w IA B 1 v ohm Ant -rrr .011115 14 w Yorktown Median Irrigation 11,1111;:4111Mri arta efts; RiE LAKE ies sar sr NCE 01 10 1144t. a n AAA 14 O s 0 11.1 444 se • e) u 13 12 / 4* 1 0.125 Exhibit d ea 10 ,0 e) MORITZ LAKE a 7 ee // •11 ° 1111 t 13 42 43 tl 14 4OP 13 .5 Mil n 2 4 10 r 7/ / 1 / 114,—/rciRR-/ e /, WI* „10 0 z� 411. 10 • / Meter Number 1 1 9 9 RAW DATA Meter Number 1 1 1 1 9 9 9 9 9 9 9 Meter Address 7401 Brentridge Dr 4500 Great Lakes Dr Meter # WT13000447 WT127748 User City of CC Diamond Lakes Master Association City of CC Diamond Lakes Master Association City of CC City of CC City of CC Diamond Lakes Diamond Lakes Diamond Lakes Diamond Lakes City of CC City of CC City of CC City of CC Master Association Master Association Master Association Master Association Exhibit B Sq. Feet of Median Percentage 47226.01 91.64 4308.96 8.36 33016.98 2551.11 Sq. Feet of Median 25973.74 12279.34 8972.93 4308.96 559.63 761.07 1230.41 7533.44 6802.05 13274.82 5406.68 92.83 7.17 Meter Number 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 Meter Address 4502 E Burkhadt 4600 Schwerin Lake 4600 Yorktown 4600 Lake Heron 7579 Everhart 7402 Blue Lake Dr 4500 Oso Pkwy 7400 Everhart 55 Great Lakes 7501 Lake Superior 4433 Lake Superior - previosly listed at 7517 Lake Travis 54 Great Lakes 7517 Lake Travis Dr - previosly listed at 7518 Lake Travis Dr 7461 Lake Travis Dr 7502 Venice Dr Exhibit C Meter Owner The Lakes Master Association The Lakes Master Association The Lakes Master Association The Lakes Master Association The Lakes Master Association The Lakes Master Association City of CC and State The Lakes Master Association Diamond Lakes Master Association Diamond Lakes Master Association Diamond Lakes Master Association Diamond Lakes Master Association Diamond Lakes Master Association Diamond Lakes Master Association The Lakes Master Association (Diamond Lakes Master Association Agreement) Meter # WT127084 WT109051 WT109050 WT109053 WT13000201 WT11002072 WT12000467 WT108247 WT11000803 WT11001091 WT11000800 WT00003527 WT108161 WT105042 WT00002306