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R2009-029 - 2009-02-23RESOLUTION NO. R2009-29 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO ENTER INTO AN INTERLOCAL AGREEMENT AND AN AMENDED MEMORANDUM OF UNDERSTANDING WITH BRAZORIA DRAINAGE DISTRICT NO. 4 ASSOCIATED WITH THE EAST MARY'S CREEK REGIONAL DETENTION FACILITY. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain Interlocal Agreement by and between the City of Pearland and Brazoria Drainage District No. 4, a copy of which is attached hereto as Exhibit "A"and made a part hereof for all purposes, is hereby authorized and approved. Section 2. That certain Amended Memorandum of Understanding by and between the City of Pearland and Brazoria Drainage District No. 4, a copy of which is attached hereto as Exhibit "B" and made a part hereof for all purposes, is hereby authorized and approved. Section 3. That the City Manager or his designee is hereby authorized to execute and the City Secretary to attest an Interlocal Agreement and an Amended Memorandum of Understanding with Brazoria Drainage District No. 4. PASSED, APPROVED and ADOPTED this the 23~d d of February, A.D., 2009. TOM REID MAYOR ATTEST: Y UNG I G R Y S RETAR APPROVED AS TO FORM: 4\ ) cam..-~_ ~d ~.--. DARRIN M. COKER CITY ATTORNEY Exhibit "A" Resolution 2009-29 DR2006 INTERLOCAL AGREEMENT BETWEEN CITY OF PEARLAND AND BRAZORIA DRAINAGE DISTRICT NO. 4 This AGREEMENT is made between BRAZORIA DRAINAGE DISTRICT NO. 4 ("District") and the CITY OF PEARLAND ("City"), each being a governmental entity pursuant to the Texas Interlocal Cooperation Act, Chapter 791, Texas Government Code. WHEREAS, the City and District find it necessary to construct the East Mary's Creek Regional Detention Facility ("Detention Facility"). The site for the Detention Facility is currently undeveloped and located near the confluence of Mary's Creek and Mary's Creek Bypass which are both under the jurisdiction of the District. The site is located within the boundaries of the City, but the facility serves territory located within the jurisdiction of each entity; and WHEREAS, the construction of the Detention Facility will provide regional detention to improve the function of the drainage ditches located within the jurisdiction of each entity as well as incorporate mitigation requirements for the Dixie Farm Road Improvements and the Pine Hollow Drainage Improvements; and WHEREAS, the entities have agreed to jointly participate in the funding for their share of the construction of the Detention Facility as more particularly described in Exhibit "A" attached hereto; and WHEREAS, the City will own approximately 125 acre-feet of hydraulic storage volume and the District will own approximately 75 acre-feet hydraulic storage volume in the Detention Facility. NOW, THEREFORE, for the mutual consideration, and covenants set forth below, the Entities agree as follows: A. City and District agree that City shall: 1. Prepare all engineering plans and specifications for the Detention Facility. 2. Obtain all reviews and approvals that may be required by all third parties, including all permits, licenses, certificates, etc. necessary for the design, construction, operation and maintenance of the Project. 3. Submit 60% and 90% drawings to the District for review during a 14 day review period. 4. Prepare a written response to any comments the District submits during the review period. 5. Review and approve all design and construction plans and specifications for the Detention Facility. 6. Publish the Bid Invitation in the local paper, conduct apre-bid meeting, and receive bids for the construction of the Detention Facility. 7. Tabulate and review all bids submitted and prepare a recommendation for bid award and submit to the District for their review and approval. 8. Prepare a recommendation to Council to award a contract for construction of the Detention Facility, and authorize the City Manager to execute the contract. 9. Provide funding for 62.5% of the costs of all construction related contracts including the contracts for the construction, the Construction Management & Inspections, and Construction Material Testing for the project. The City's share of the funding is summarized in Exhibit "B," Cost Estimate. The City's funding total will be based on actual costs for the project. 10. Have the authority to process any necessary Change Orders, up to 5% of the value of the contract. Cumulative Change Orders that may exceed 5% shall be jointly approved by the City and District. The City shall be responsible for 62.5% of the costs of any Change Order. 11. Receive the pay estimates from the contractor for the Detention Facility and make periodic payments to the contractors as required by the construction contract. Upon receipt of an invoice from the contractor, City shall invoice the District for 37.5% of each invoice and District shall make payment to City within thirty (30) calendar days following District's receipt of the same. B. City and District agree that District shall: 1. Review the 60% and 90% drawings and provide written comments to City within 14 days of Districts ' receipt of the same. 2. Review and approve all design and construction plans and specifications for the Detention Facility. 3. Fund 37.5% of additional engineering costs that may be necessary for the project, and fund 100% of additional engineering costs required due to additional design work resulting from the additional 75 ac-ft storage volume to be owned by District. 4. Review and approve the Invitation to Bid prior to publication. 5. Review the bids and provide written approval of the City's recommendation for bid award. 6. Provide funding for 37.5% of the costs of all construction related contracts including the contracts for the construction, the Construction Management & Inspections, and Construction Material Testing for the project. District's share of the project funding is attached as Exhibit `B," Cost Estimate. District's share of the funding will be based on actual costs. Upon receipt of an invoice from the contractor(s), City shall invoice the District for 37.5% of each invoice and District make payment to City within thirty (30) calendar days following District's receipt of the same. 7. Receive copies of all Change Orders, and shall have the right to review and approve any Change Order exceeding 5% of the value of the contract. The District shall fund 37.5% of each Change Order and make payment to the City as described herein. 8. Provide the City, the contractor or its sub-contractors access to the East Mary's Bypass for construction of a property access road. III. MAINTENANCE AND OPERATION Both Entities recognize, understand and agree that the City shall own the Detention Facilities upon their completion. The maintenance and operation of the Detention Facilities shall be in accordance with the Amended Memorandum of Understanding (MOU) between the City and the District, which is attached hereto and incorporated herein for all purposes. IV. FEES FOR DETENTION CAPACITY No detention storage capacity, reserved for City or District projects, may be sold to third parties. Both entities agree any remaining capacity not reserved for City projects from the City's 125 ac-ft storage volume will remain under the jurisdiction of the City. Any remaining capacity from the District's 75 ac-ft storage volume that is not required for the District's projects shall remain under the jurisdiction of the District. V. TERM AND TERMINATION A. The term of this Agreement for purposes of construction shall be for a period two (2) years, commencing on the effective date reflected herein and terminating on the same day of the year 2011 and shall be extended automatically until construction of the Detention Facilities are complete unless terminated as provided herein. B. The term of this Agreement for purposes of maintenance shall be for the life of the Detention Facilities and in accordance with the MOU. C. Notwithstanding the provisions set forth in sections A and B of this article, this Agreement may be terminated at any time after the execution hereof, at the option of either party by giving the other party ninety (90) day' written notice. VI. MISCELLANEOUS A. City and District recognize and agree that District, in performance of this agreement, shall act as an independent contractor and shall have control of its own work and the manner in which it is performed and all employees of District shall remain District employees and shall not be considered agents, employees, or borrowed servants of the City. B. City and District recognize and agree that the City, in performance of this Agreement, shall act as an independent contractor and shall have control of its own work and the manner in which it is performed and all employees of the City shall remain City employees and shall not be considered agents, employees, or borrowed servants of District. C. Ciry and District recognize and agree that work and materials provided by District, in accordance with this Agreement, are provided without warranty of any kind to the City or any third party, and work and materials provided by the City, in accordance with this Agreement, are provided without any warranty of any kind to District or any third party. D. Nothing herein shall be construed to make either party a purchaser or consumer of goods or services from the other. E. City and District shall comply with all applicable laws, regulations and requirements in performance of their respective obligations under this agreement. F. City and District agree to acquire and maintain the minimum limits of insurance required by law and sufficient to cover each party's performance hereunder. G. Ciry and District recognize and agree that nothing herein shall be construed to create any rights in third parties. H. City and District agree that no party shall have the right to seek indemnification or contribution from any other party hereto for any losses, costs, expenses, or damages directly or indirectly arising, in whole or part form this Agreement. Whenever possible, each provision of this agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any section, subsection, paragraph, sentence, clause, phrase, work or portion of this Agreement is, for any reason, held invalid unconstitutional or otherwise unenforceable by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof. The Rights and Obligations of this Agreement shall not be assigned without prior written consent of the City and District. K. This Agreement may only be amended, modified, or supplemented in writing and subsequently signed and dated by the City, as acted upon by its City Council and the District, as acted upon by its Board of Commissioners. L. This Agreement and all obligations created hereunder shall be performable in Brazoria County, Texas Each person signing below represents that he or she has read this Agreement in its entirety, including any and all attachments and exhibits, understands its terms, is duly authorized to execute this Agreement on behalf of the party indicated by his or her name below and agrees on behalf of said party that the party will be bound by these terms. SIGNED and ENTERED his 23rd day of February , ?009. CIT ARLAND ~,.. ,,,~~~A~tgy-•, , =~~ x Bill Eisen, City Manager 2/23/09 Y BRA RIA D - I GE DISTRICT NO. 4 -~ ~ ~~c~ J r y H. Brennan, Chairman ATTES -o\ j ~~~ ath Wel s, Director of Administrative Services zl 1 N ~ ~:~ ,,, lnoAV~ avow ss3~., ......_. Tr" - -- _ ~- ~~ r:o~i rdcrN3t3o wNOio3a N33a~ tiww _w~ ,,__ -~-+- _ -_ I i.' I '~:INV'.~Ml.: I I^~ ~~ ` II ~~ t=1 yv. ~ ~ ~"T'+y~ v ~ ~ IA 1 - ~' ~~ t 1 ru;' .• .~ 1' I- '~ ~ '~'„''~" Exhibit "B" Cost Estimate East Mary's Creek Detention Facility 200 acre-feet Hydraulic Storage Volume INOM ITEM DESCRIPTION UNIT QUANTOITY UNIT PRICE AMOUNT 1 Mobilization (@ 4.5% of contract) LS 1.00 $190,000.00 $190,000.00 2 Clearing and Grubbing AC 31.00 $3,000.00 $93,000.00 3 5-Strand Barbed Wire Fence with steel posts LF 6,245.00 $10.00 $62,450.00 4 16 Ft Aluminum Fence Swing Gate EA 1.00 $3,000.00 $3,000.00 5 36" RCP Storm Sewer Outfall LF 350.00 $275.00 $96,250.00 6 Tideflex Model TF-1 Check Valve for 36" RCP (Installed) EA 1.00 $25,000.00 $25,000.00 7 Junction Box EA 1.00 $5,000.00 $5,000.00 8 Manhole EA 1.00 $3,000.00 $3,000.00 9 Type B (MOD) Berm Inlets EA 13.00 $2,500.00 $32,500.00 10 Slope Paving(Budget) SY 3,500.00 $50.00 $175,000.00 11 Block Sodding SY 14,000.00 $4.00 $56,000.00 12 Stockpile & Place Topsoil (6") CY 6,000.00 $4.00 $24,000.00 13 Detention Pond Excavation CY 400,000.00 $8.00 $3,200,000.00 14 Embankment, compacted in place CY 1,400.00 $8.00 $11,200.00 15 Well Pointing, as authorized by Engineer. LF 1,000.00 $25.00 $25,000.00 16 Intake Structure LS 1.00 $150,000.00 $150,000.00 17 Storm Water Pollution Prevention Plan LS 1.00 $20,000.00 $20,000.00 18 Channel Modification (Budget) LS 1.00 $75,000.00 $75,000.00 19 Haul Route (Budget) LS 1.00 $50,000.00 $50,000.00 20 Site Restoration LS 1.00 $100,000.00 $100,000.00 21 Articulated Block SY 3,000.00 $38.00 $114,000.00 SUBTOTAL $4,510,400.00 CONTINGENCY @ 15% $676,560.00 CONSTR. MGMT. & INSP. AND CONSTRUCTION MATERIAL TESTING @ 9.5% $492,800.00 ESTIMATED TOTAL $5,679,760.00 Estimated Project Costs for Each Entity ESTIMATED CITY OF PEARLAND SHARE (62.5°/~) $3,549,850.00 l?ti'I~111.~T1?D BR ~ZO121_~ D12 U~' SCE I)IS'I~RIC'"f tiO. 4 SIL~121? 37.~`!~;,1 ~!;~.1_~J_~)1O_O(1 MEMORANDUM OF UNDERSTANDING BETWEEN BRAZORIA DRAINAGE DISTRICT NO.4 AND CITY OF PEARLAND FOR DRAINAGE REGULATION This Memorandum of Understanding ("MOU") is dated and effective as of the day last signed by the parties hereto, BRAZORIA DRAINAGE DISTRICT NO. 4, acting by and through its Chairman, ("District") and the CITY OF PEARLAND, TEXAS, acting by an through it Mayor, ("City"). RECITALS WHEREAS, City and District, as local governmental entities, are authorized to enter into this MOU for the provision of governmental functions and services, pursuant to Chapter 791 of the Texas Government Code; and WHEREAS, Ciry is a home rule municipal corporation primarily located within the boundaries of District and Brazoria County; and WHEREAS, City is empowered to regulate the subdivision of land within its corporate boundaries and its area of extraterritorial jurisdiction; and WHEREAS, Ciry is empowered adopt reasonable rules and regulations governing plats and the subdivision of land; and WHEREAS, no land within City or its area of extraterritorial jurisdiction may be subdivided unless and until a plat of such subdivision has been approved by Ciry; and WHEREAS, Ciry is empowered to act as Floodplain Administrator, on behalf of the Federal Emergency Management Administration ("FEMA"), in adopting and enforcing regulations designed to minimize flood losses; and WHEREAS, Ciry requires, as a condition of subdivision plat approval, compliance with applicable rules and regulations of City relating to floodplain management and flood damage prevention; and WHEREAS, District, a conservation and reclamation district, was created and exists for the purpose of reclamation and drainage of flooded lands and other lands needing drainage within District; and WHEREAS, District is primarily located within the corporate boundaries of City within Brazoria County; and WHEREAS, in furtherance of District's purpose, District is empowered to acquire, construct, improve, and maintain facilities necessary to carry out its mandated purpose; and WHEREAS, City and District have established similar drainage criteria and regulations, in order to a) assure that development within their overlapping jurisdictions does not circumvent their respective floodplain management and flood damage prevention plans, b) establish consistent application, c) simplify compliance, and d) avoid conflicts in the joint administration of said drainage criteria and regulations within their overlapping jurisdictions; and WHEREAS, it is the desire of City and District that persons seeking approval within the overlapping jurisdictions of City and District for (1) subdivision plat or replat, (2) properties that have been rezoned to a higher run-off coefficient or land use type, or (3) developments on an existing site which increase impervious cover, be required to comply with City's and District's drainage criteria and regulations to prevent new development from negatively impacting existing property and structures; and WHEREAS, City and District desire to amend the Memorandum of Understanding between City and District dated February 28, 2001 in order to specify the roles of each party related to City's Corrigan subdivision drainage improvement project. WHEREAS, City and District desire to amend the Memorandum of Understanding between City and District dated June 28, 2004 in order to specify the roles of each party related to the City's Bailey Road Expansion at Cowart's Creek, Veteran's Detention Facility at Mary's Creek, Cowart's Creek Diversion Ditch and Detention Facility and the West Mary's Creek Detention Facility . WHEREAS, City and District desire to amend the Memorandum of Understanding between Ciry and District dated October 16, 2007 in order to specify the roles of each party related to the City's East Mary's Creek Regional Detention Facility. NOW THEREFORE, Ciry and District, agree as follows: 1. City and District agree to jointly cooperate and administer their respective drainage criteria and regulations, imposed upon all property and development located within their overlapping jurisdictions which propose to discharge storm waters into a City or District outfall facility, in an effort to promote and protect public health, safety and welfare, by minimizing public and private losses resulting from flood conditions. 2. District agrees to review, and where warranted, approve and accept any and all drainage plans submitted to District pertaining to real property and development constructed within any and all subdivisions located within City's Extraterritorial Jurisdiction ("ETJ") within District's jurisdiction, including but not limited to the subdivisions of Silver Lake, Southwyck, Southdown, County Place and Avalon Terrace in accordance with Exhibits "A" and "B" attached hereto and incorporated herein for all purposes, and in accordance with District's Rules, Regulations & Guidelines attached hereto by reference. 3. City and District recognize and agree that District shall, in cooperation with Brazoria County, review, and where warranted, approve and accept any and all subdivision plats submitted to District pertaining to real property and development constructed within Ciry's ETJ within District's jurisdiction, in accordance with Exhibit "B", and in accordance with District's Rules, Regulations and Guidelines attached hereto by reference. 4. Prior to City's approval of any and all subdivision plats for property located within City's incorporated limits within District's jurisdiction, City agrees to cause to be submitted to District, for review and comment, said plats regarding compliance with District's Flood Protection Plan and Rules, Regulations & Guidelines to insure dedication of adequate drainage and access easements along District's drainage facilities, including but no limited to its channels, creeks and tributaries, in accordance with District's Rules, Regulations & Guidelines, similar to the procedure followed by City regarding utility companies. 5. City agrees to require all developers of property, adjacent to a drainage facility within District's jurisdiction and maintained by District, to designate, by plat, drainage and access easements for use by District in accessing and maintaining its drainage facilities, in accordance with the parties' respective drainage criteria and regulations. Said easements must be free of obstruction, motor vehicle accessible and able to accommodate District's equipment. Location of said easements shall be mutually agreed upon by City and District, upon consultation with developer during the platting process. 6. City agrees to make available for District's review and copying, any and all records pertaining to proposed development within their overlapping jurisdictions for purposed of monitoring compliance with District's Rules, Regulations and Guidelines. 7. Ciry and District recognize and agree that historically, District has maintained the drainage facilities listed below located upon property in which City holds the fee or easement interest. City hereby grants District continued access to these drainage facilities for maintenance of the same and District hereby agrees to continue maintenance of said facilities in accordance with the parties mutual understandings: a) Ditch #A 103-00-00, more commonly known as Dissen/Settegest Ditch; b) Ditch #A 104-00-00, more commonly known as Barry Rose Ditch; c) Ditch #A 104-00-00, more commonly known as Regency Park Ditch; d) Ditch #B 106-00-00, more commonly known as Pasternek Ditch 8. With regard to the Corrigan Subdivision drainage improvements, City and District agree: a) The District will continue to own and maintain the existing ditch # B 116-00-00, more commonly known as Corrigan Ditch. b) The District intends to transfer ownership of the existing Corrigan Detention Pond to City. c) City has acquired land for the Corrigan bypass ditch, also known as Hatfield Ditch, and will retain ownership of said land. d) District will mow the Hatfield Ditch and the Corrigan Detention Pond. e) City will own, operate, and maintain the Hatfield Ditch, the Corrigan Detention Pond and appurtenances. f) The Corrigan Detention Pond will be constructed by City with 4:1 side slopes and a 20-foot maintenance berm. 9. With regard to the Bailey Road Expansion at Cowart's Creek, Veteran's Detention Facility at Mary's Creek, Cowart's Creek Diversion Ditch and Detention Facility, the West Mary's Creek Detention Facility ("Detention Facilities"), the City and District agree: a) The City will own the Detention Facilities (including the Cowart's Creek Diversion Ditch). b) The District will maintain the Detention Facilities and Diversion Ditch upon their completion; said maintenance responsibilities will consist of mowing and repairs related to the outfall structures, side slope, gates, fences, pilot channels, back slope drains, etc. c) The City will maintain the discharge/intake structures for the Detention Facilities, including, but not limited to, valves, screens, etc. d) The City will assume all operational responsibilities for the Detention Facilities. 10. With regard to the East Mary's Creek Detention Facility ("Detention Facility), the City and District agree: a) The City will own the Detention Facilities. The City will own 125 ac-ft of the hydraulic storage capacity and the District will own 75 ac-ft. b) The District will maintain the Detention Facility upon its completion; said maintenance responsibilities will consist of mowing and repairs related to the outfall structures, side slope, gates, fences, pilot channels, back slope drains, etc. c) The City will maintain the discharge/intake structures for the Detention Facilities. d) The City will assume all operational responsibilities for the Detention Facilities. 11. District's Engineer is hereby designated as the natural person selected by District to lead, direct and coordinate District 's work in accordance with this MOU. 12. City's Engineer is hereby designated as the natural person selected by City to lead, direct and coordinate City's work in accordance with this MOU. 13. The term of this MOU shall be for a period of five (5) years, commencing on the 3~ day of MARCH , 2009. This MOU shall automatically renew at the expiration of said term and shall continue to renew thereafter in five (5) year increments unless either party gives the other party ninety (90) day's written notice of its desire to terminate this MOU. 14. This Agreement may only be amended, modified, or supplements in writing and subsequently signed and dated by City, as acted upon by its City Council and District, as acted upon by its Board of Directors. 4 15. City and District recognize and agree that this MOU is not in any way intended to limit, alter or reduce the express or implied authority, rights or obligation of either party as reflected in their respective drainage criteria and regulations or any other applicable law, but rather is intended to further clarify and reflect the parties' mutual understandings in jointly administering their respective drainage criteria and regulations. IN WITNESS WHEREOF, this MOU is executed on behalf of City and District by their respective authorized officers, in multiple counterparts, each of which is to constitute an original, pursuant to the prior authorization of the governing bodies of the respective parties acting in duly posed and noticed open public meeting of the respective governing bodies on the dates recited in the signature blocks below. CITY OF PEARLAND, TEXAS ,. ~--n- By: ~X Tom Reid, Mayor BRAZORIA DRAINAGE DISTRICT NO. 4 ~~~.1 ~ one Jeff re an, Chairman Date: ~ ._~ C ~t ATTEST: ;~ ~~~~~ Kathy~Vells `, Director of Administrative Services APPROVED AS TO FORM: ~~ ! ~-- s.,_.--_ Darrin Coker City Attorney Date: ~ ~~~ - ~ O g'