R2011-148 - 2011-11-28 RESOLUTION NO. R2011 -148
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.
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 28 day of November, A.D., 2011.
TOM REID
MAYOR
ATTEST:
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AP OVED AS TO FORM:
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DARRIN M. COKER
CITY ATTORNEY
EXHIBIT "A"
Resolution No. R2011 -148
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 finds it necessary to construct the Hickory Slough Detention Pond at Max
Road ( "Detention Pond "). The proposed site for the Detention Pond is located in the City west
of Max Road, south of future Hughes Ranch Road, and north of Hickory Slough which is under
the jurisdiction of the District. The Detention Pond will serve territory located within the
jurisdiction of each entity;
WHEREAS, the construction of this Detention Pond will provide stormwater detention for
improvements associated with the Max Road Sports Complex, Hughes Ranch Road, Brazoria
County Municipal Utility District No.16, and will benefit both the City and the District; and
WHEREAS, the City has agreed to fund the design and one -half (1/2) of the construction related
services of the Detention Pond.
WHEREAS, the District has agreed to fund one -half (1/2) of the construction related services of
the Detention Pond.
WHEREAS, Phase I of the Detention Pond will provide approximately 153 ac -ft of hydraulic
storage capacity and Phase II of the Detention Pond will provide approximately 95 ac -ft of
hydraulic storage capacity.
WHEREAS, Subject to Section III of this Agreement, the District desires to fund an amount not
to exceed $2,000,000.00 towards of the construction related services associated with Phase I of
the Detention Pond, and ultimately fund a total amount equal to one -half the total combined
construction costs for Phase I and Phase II of the Detention Pond.
WHEREAS, while the District traditionally provides the mowing maintenance of regional
detention facilities, the City will provide mowing maintenance for the Detention Pond due to its
dual use as a drainage facility and a sports complex.
NOW, THEREFORE, for the mutual consideration, and covenants set forth below, the Entities
agree as follows:
I. DESIGN AND CONSTRUCTION
A. City and District agree that City shall:
94093 -002 131438 V 1
1. Provide all engineering plans and specifications for the Detention Pond.
2. Submit 60% and 90% construction plans of the Detention pond to the District
for review.
3. Obtain all engineering design reviews and approvals that may be required by
third parties, including all permits, licenses, certificates, etc. necessary for the
design, construction, operation and maintenance of the Detention Pond.
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 Pond.
6. Publish the Invitation to Bid in the local paper, conduct a pre -bid meeting, and
receive bids for the construction of the Detention Pond.
7. Tabulate and review all bids submitted and prepare a recommendation to the
City Council to award a contract and authorize the City Manager to execute
the contract.
8. Upon award of a construction contract to the lowest responsible bidder,
provide all equipment, material and labor necessary to construct the Detention
Pond.
9. Provide funding for costs in excess of $2,000,000.00 for all Phase I
construction related costs, which shall include Construction, Construction
Management & Inspection, and Construction Material Testing contracts for
the Detention Pond.
10. Provide funding for Phase II construction related costs, which shall include
Construction, Construction Management & Inspection, and Construction
Material Testing contracts for the Detention Pond.
11. Retain the authority to process any Change Orders that may be necessary for
construction of the Detention Pond.
12. Receive pay estimates from the contractor and make periodic payments to the
contractor.
13. Submit monthly invoices to the District for the Phase I construction related
costs.
14. Provide the District and District's representative's access to the Detention
Pond to perform maintenance and inspection services.
94093 -002 13 1438 V 1
B. City and District agree that District shall:
1. Review the 60% and 90% construction plans for the Detention Pond and
provide written comments to the City within 14 days of receipt of the same.
2. Approve all construction plans and specifications for the Detention Pond.
3. Subject to Section III below, provide funding, not to exceed $2,000,000.00,
for all Phase I construction related costs, which shall include contracts for
the Construction, Construction Management & Inspection, and Construction
Material Testing of the Detention Pond. Upon receipt of an invoice(s) from
the City as provided herein, the District shall review the invoice(s) and make
payment to the City for construction related costs associated with Phase I of
the Detention Pond within 14 days of receipt of the invoice.
4. Allow the City and all of City's representative's access to Hickory Slough
for construction, maintenance and inspection services associated with the
Detention Pond.
II. OWNERSHIP, MAINTENANCE AND OPERATION
A. The City and District recognize, understand and agree that the City shall own the
Detention Pond upon its completion.
B. The maintenance and operation of the Detention Pond shall be in accordance with the
Amended Memorandum of Understanding (MOU) between the City and the District
attached hereto as Exhibit (" A ").
III. FINAL ACCOUNTING
Within thirty (30) days following the issuance of a Certificate of Final Completion for
construction of Phase II, City will perform, or cause to be performed, a final
accounting of the construction related costs of Phase I & II of the Detention Pond
( "Total Construction Costs "). If the final accounting concludes that the actual
expenditures of the District exceeds one -half (1/2) of the Total Construction Costs,
then the City shall refund one -half (1/2) of the difference between actual expenditures
of the District and the Total Construction Costs within thirty (30) days after the final
accounting is complete. If the actual expenditures of the District are less than one -
half (1/2) of the Total Construction Costs then the District shall pay the City one -half
(1/2) of the difference between actual expenditures of the District and the Total
Construction Costs within thirty (30) days after receiving written notice from City.
IV. TERM
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
94093 -002 131438V1
day of the year 2013 and shall be extended automatically until construction of the
Detention Pond is complete.
B. The term of this Agreement for purposes of maintenance shall be for the life of the
Detention Pond and in accordance with any amendments to the MOU.
V. 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. Nothing herein shall be construed to make either party a purchaser or consumer of
goods or services from the other.
D. City and District shall comply with all applicable laws, regulations and requirements
in performance of their respective obligations under this agreement.
E. 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.
F. City and District recognize and agree that nothing herein shall be construed to create
any rights in third parties.
G. 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.
H. 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.
I. The Rights and Obligations of this Agreement shall not be assigned without prior
written consent of the City and District.
94093 -002 13 1438 V 1
J. 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.
K. 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. gq
SIGNED and ENTERED this �U f day 6f_j44I IQ,Y , 201t
BRAZ • ;.! DRA 1 At' DISTRICT NO. 4
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e fi . Brennan, Chairman
ATTEST
Kat Wells, 4 ector of Administrative Services
= 'LAND
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Bill Eisen, City Manager
ATTEST:
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94093 -002 131438V1
EXHIBIT "B"
Resolution No. R2011 -148
AMENDED 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, City 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, City 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 City; and
WHEREAS, City 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, City 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 City 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.
WHEREAS, City and District desire to amend the Memorandum of Understanding
between City and District dated March 3, 2009 in order to specify the roles of each party related
to the City's Cowart's Creek Detention Pond, Clear Creek Detention Pond, Magnolia Road
Outfall Channel, Town Ditch, Cullen Detention Pond, and Hickory Slough Mitigation Facility.
WHEREAS, City and District desire to amend the Memorandum of Understanding between
City and District dated July 6, 2010 in order to specify the roles of each party related to the
City's Hickory Slough Detention Pond at Max Road.
NOW THEREFORE, City 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
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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 City'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. City 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;
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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 # B116-00-00, 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. With regard to the Cowart's Creek Detention Pond, Clear Creek Detention Pond, Cullen
Detention Pond, Magnolia Road Outfall Channel and Town Ditch ( "Detention Facilities,
Channel and Ditch ") the City and District agree:
a) The City will own the Detention Facilities, Channel and Ditch.
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b) The District will maintain the Detention Facilities, Channel and Ditch. Said
maintenance shall include but not be limited to mowing and repairs related to the
outfall structures, side slopes, gates, fences, pilot channels, and back slope drains.
c) The City will maintain the discharge /intake structures for the Detention Facilities,
Channel and Ditch. Said maintenance shall include, but not be limited to, valves and
screens.
d) The City will assume all operational responsibilities for the Detention Facilities,
Channel and Ditch.
12. With regard to the Hickory Slough Mitigation Facility ( "Mitigation Facility "), the City
and District agree:
a) The City will own the portion of the Mitigation Facility that lies on City property as
recorded in the Official Public Records of Brazoria County Doc. #2005- 035689, and
the District will own the portion of the Mitigation Facility that lies on District
property as recorded in the Official Public Records of Brazoria County Doc#
2009021502.
b) The District will maintain the Mitigation Facility upon its completion. Said
maintenance shall include but not be limited to mowing and repairs related to the side
slopes, gates, fences, and low water crossing.
13. With regard to the Hickory Slough Detention Pond at Max Road ( "Detention
Pond "), the City and District agree:
a) The City will own the Detention Pond. The City will own 124 ac -ft of the
hydraulic storage capacity in addition to 124 ac -ft of hydraulic storage capacity,
which shall be allocated for general watershed improvement.
b) The City will provide the mowing and maintenance including side slopes, gates,
fences, pump station, and pilot channels for the Detention Pond.
c) The District will provide all maintenance and repairs related to the outfall
structures and back slope drains.
d) The City will assume all operational responsibilities for the Detention Pond.
14. 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.
15. 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.
16. The term of this MOU shall be for a period of five (5) years, commencing on the
day of , 2012. 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.
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17. 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.
18. 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.
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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 PEARL TEXAS BRAZORIA ;V • INAG DI RICT NO. 4
n /i i Aek,
Tom Reid, Mayor Jeff , r: nnl n, Chairman
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Date: November 28, 2 011 Date: LJ44/J 4/Z /19, Zb / Z
ATTEST: ATTEST:
_i /.! //4 or - - _ _ . _ .. �� _ _ -
i rung 1 Kath Wells i g, ' /' /
�.
t Se etary Director of As _inistrative Services
APPROVED AS TO FORM:
Darrin Coker
City Attorney
sa-i '
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