Agenda Request

	City Council
	Agenda Request
Agenda Of:	October 16, 2007	Agenda Request No:		III F
Initiated By:	Chris Steubing, P.E. City Engineer & Shashi Kumar. P.E. Drainage Engineer	Responsible Department:		community development
Presented By:	Shashi Kumar, PE Drainage Engineer	Department Head:		Chris Steubing, PE City Engineer
		Additional Department. Head (s):		Joe Chesser Interim Parks Director
Subject / Proceeding:	Agreement with Fort Bend County LID 14 for the excavation of Spoil from the City’s Park Property for the purpose of increasing levee heights
Exhibits:	Agreement with exhibits
Clearances			Approval
Legal:	Eugenia Cano, Assistant City Attorney		Executive Director:	Jim Callaway Community Development
Purchasing:	n/a		Asst. City Manager:	n/a
Budget:	n/a		City Manager:	Allen Bogard
Budget
Expenditure Required: $			N/A
Amount Budgeted/Reallocation: $			N/A
Additional Appropriation: $			N/A
Recommended Action
Approve agreement with Fort Bend County Levee Improvement District #14 (FBC LID 14) for the excavation of spoil from the City’s park property.
Executive Summary
The City has been working with the First Colony Levee Improvement Districts on a resolution to the issue arising from the FEMA’s Map Modernization Program and levee re-certification requirements. Preliminary results of the Brazos River re-study show that the base flood elevations (BFE’s) along the district boundaries are likely to increase. The districts levees were originally designed to provide protection from the current BFE (100-year flood). Any potential increase in BFE’s would require raising the levees to meet the FEMA’s minimum freeboard criteria, so as to retain the current floodzone classification when the new maps are released. The FBC LID 14 has been proactive in responding to this issue, and is planning to elevate (raise) sections of their levees in anticipation of these new BFE’s. These timely improvements would allow the district to meet FEMA’s levee re-certification requirements, and thus allow the area protected by the levees to retain the current floodzone classification upon the release of new Flood Insurance Rate Maps (FIRM’s). FBC LID 14 would like to obtain fill material for raising their levees from the City’s White Lily Pond located in the Brazos Park Area. Geotechnical investigation has revealed the availability of suitable material in the White Lily pond area for levee construction. The attached agreement will allow the LID contractor to enter the City’s property at a designated location to access the proposed White Lily Pond for excavation purposes. Other terms and conditions that are part of this agreement include: Ø Access route in and out of the park Ø Pond location and limits of allowable borrow area Ø Maximum allowable quantity of material to be removed Ø Finish requirements to the perimeter of the pond and property Ø City coverage under contractors insurance policy The LID 14 contractor was also the successful low bidder for the other two districts involved in this portion of the perimeter levee project (FBC LID 2, FC LID 2, FBC LID 14). LID 14 will be entering into a change order with the contractor for their portion of the material needed. An agreement exists and is in place between the LID’s regarding the perimeter levee that is being constructed. This perimeter levee will provide cost savings to the LID’s as well as lessen the disturbance to the residents of the City and the LID’s. The pond location identified is in accordance with the Council approved master plan for the 420 acre Sugar Land Memorial Park. The specifications for this work will result in a pond in the central area of the site similar to the South Pond already constructed in the Phase I development.
Exhibits

AGREEMENT BETWEEN

THE CITY OF SUGAR LAND AND

FORT BEND COUNTY LEVEE IMPROVEMENT DISTRICT NO. 14

FOR EXCAVATION WORK ON CITY PROPERTY

Background:

Fort Bend County Levee Improvement District No. 14 has awarded a contract to Lecon, Inc. for the construction of levee improvements. The City has agreed to allow the District to excavate soil form City-owned land located along the Brazos River for the levee improvements. The City proposes to use the excavated areas as lakes as part of the development of the area for park purposes.

Agreement:

The City and the District agree as follows:

1. Definitions. In this Agreement:

Agreement means this Agreement

City means the City of Sugar Land, Texas.

Construction Plans mean the drawings and related documents produced by the City showing the typical cross-sections, details, and specifications for Excavation Work on the Property as described in Exhibit A.

District means Fort Bend County Levee Improvement District No. 14 and its officers, contractors, or representatives.

Excavation Work means the District’s removal, transportation, placement, or use of soil from the Property. Excavation Work does not include erosion control, slope protection, drainage pipe or structures, or any other work other than the District’s removal, transportation, placement or use of soil from the Property.

Lecon means Lecon, Inc. and its officers employees, contractors, or representatives.

Permit means any written document or authorization required by any governmental entity for any activity relating to the Excavation Work.

Property means the 421 acres of land as described in section 2 of House Bill 1961, adopted in the Regular Session of the 75^th Texas Legislature and approved by the governor on June 20, 1997, which authorized the Texas Department of Transportation to convey the described land to the City.

Suitable Soil means soil that currently meets or can be altered to meet the District’s specifications.

2. City’s Obligations. Under this Agreement, the City will:

(a) Survey and stake the areas on the Property that may be excavated and provide the District with a copy of the survey (the “Excavation Areas”);

(b) Prepare a Storm Water Pollution Prevention Plan required for the Excavation Work.

3. Excavation Work Authorized.

(a) The City grants the District the right to enter onto the Property to remove and transport Suitable Soil from the Excavation Areas as part of the Excavation Work under the terms and condition of this Agreement. The District is not required to remove and transport any minimum amount of Suitable Soil from the Property. However, as long as the Suitable Soil is used to complete any of its levee improvements, the District may excavate and use Suitable Soil from the Excavation Areas in conformity with the Construction Plans.

(b) The District and any other Levee Improvement Districts that the City authorizes by agreement to excavate Suitable Soil from the Excavation Sites may not cumulatively excavate more than 100,000 cubic yards of Suitable Soil from the Excavation Areas unless and until the City’s city manager gives his prior written approval to excavate more than 100,000 cubic yards.

4. Excavation Work on the Property. In excavating the Property, the District will:

(a) Remove all trees, roots, brush, and debris from the Property as a result of the District’s clearing and grubbing of the Property. The clearing may be done by trench burning at locations on the Property approved by the City if the District obtains and complies with all required legal requirements, including all necessary or required Federal or State permits. The District will not engage in trench burning at times when weather conditions might cause ash or other particulates from the trench burning to be deposited on adjacent properties. The City may prohibit trench burning during times the City determines weather conditions are not suitable for trench burning;

(b) Excavate only in the areas identified by the City in writing for excavation;

(c) Excavate in conformity with the Construction Plans. During the term of this Agreement, the representatives of the City and the District may make one or more revisions to the Construction Plans, by putting the revisions in written form, stating the effective date of the revisions, having the parties’ representatives affix their signatures to the revisions, and attaching the revisions to this Agreement as a revised Exhibit A. For purposes of this paragraph, the City’s city manager or an assistant city manager is authorized to approve revisions to the Construction Plans for the City;

(d) Maintain survey control provided by the City;

(e) Comply with any directions or orders of the City’s on-site representative relating to any requirement imposed upon by the District under this Agreement;

(f) Comply with a written plan as prepared and approved by the City that shows where the District will access the Property and the routing of trucks and machinery on the Property used in the Excavation Work;

(g) Comply with the phasing plan, if any, as shown in the Construction Plans;

(h) Not be required to excavate soil that cannot be used for construction of the levee improvements. Unsuitable soil that the District does excavate will be stock piled as shown in attached Exhibit A and placed and compacted in excavated areas as shown in the Construction Plans;

(i) Be responsible for any dewatering necessary as a result of rainfall to perform the Excavation Work.

5. Traffic Control. The District will provide for all traffic control relating to the Excavation Work and is subject to either Texas Department of Transportation’s or the City’s prior approval, depending on which entity has jurisdiction over the road providing access to the Excavation Work. A Traffic Control Plan will be submitted by the District’s contractor and approved by the City prior to the start of Excavation Work.

6. Governmental Permits, Laws, and Regulations. The District will:

(a) Obtain, at the District’s costs, all Permits for the Excavation Work required by law or regulation of any governmental entity and, upon the written request of the City, provide a copy of any required Permit to the City within 10 days of the date of the City’s request;

(b) For the Storm Water Pollution Prevention Plan required for the Excavation Work, submit the Notice of Intent, along with any applicable fees, to the Texas Commission on Environmental Quality;

(d) Not damage or disturb any area, as identified by the City and provided to the District in writing, as protected wetlands under Federal law or regulations;

(e) Reimburse the City for any fines or penalties imposed upon and paid by the City that are levied by any governmental entity or agency because of the District’s violation of any law or governmental regulation in performing the Excavation Work;

(f) Correct or pay the cost to correct any condition, including any condition, including any condition of the Property that results from the District’s Excavation Work and violates any law or governmental regulation.

7. Reports. Within 90 days following the effective date of this Agreement and every 90 days thereafter, the District will provide the City with a written report on the amount of soil removed from the Property, an estimate of the amount of soil yet to be removed, and the estimated time remaining.

8. Insurance and Indemnity. Before entering onto the Property, the District will cause its contractor to comply with the City’s insurance requirements as set forth in Exhibit B. To the extent allowed by law, the District will indemnify and hold the City, its officers, and employees harmless from all claims, losses, damages, causes of action, suits, and liability of every kind, including all expenses of litigation, court costs, and attorney’s fees, for injury to or death of any person, or damage for damage to any property, arising from Excavation Work or related activities performed by the District, its officers, contractors, or representatives under this Agreement. The indemnity provided for in this paragraph survives termination of this Agreement.

9. Term and Termination. This Agreement begins on the latest date of the dates executed by all parties. Unless terminated earlier as allowed in this Agreement, this Agreement terminates when the District has finished all Excavation Work and compiled with all other provisions of this Agreement.

10. Miscellaneous Provisions.

(a) Termination for Default. Either party may terminate the Agreement during its term as provided in this paragraph if the other party fails to comply with its terms. The party alleging the default will give the other party notice of the default in writing. If the party in default fails to cure the default within 30 days of the date of the notice, the party giving the notice may terminate this Agreement by written notice to the other party, specifying the date of termination. Termination of this Agreement under this paragraph does not affect the right of either party to seek any remedies for breach of contract as provided by law.

(b) Independent Contractor. The District and any of its contractors, representatives or other agents will perform the work under this Agreement as an independent contractor and not as an employee of the City. The City has no right to supervise, direct, or control the District or any of its officers, employees, contractors, representatives, or other agents in the means, methods, or details of the work to be performed by the District under this Agreement. The City and the District agree that the work performed under this Agreement is not inherently dangerous, that District will perform the work in a workmanlike manner, and that the District will take proper care and precautions to insure the safety of the District’s officers, employees, contractors, representatives, or other agents.

(c) Remedies Cumulative. The rights and remedies provided in this Agreement or otherwise under applicable laws are cumulative and the exercise of any particular right or remedy does not preclude the exercise of any other right or remedy.

(d) Dispute resolution procedures. The parties desire an expeditious means to resolve any disputes that may arise between them regarding the Agreement. To accomplish this, the parties agree to mediation and arbitration as follows:

1. Mediation. If a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled through negotiation, then the parties agree first to try in good faith to settle the dispute by mediation under the Commercial Mediation Rules of the American Arbitration Association. If mediation has not been conducted and the matter resolved within 30 days of a request by either party for mediation, the parties may then resolve the dispute by binding arbitration as set forth below.

2. Arbitration. Upon the demand of either party, whether before or after the filing of any suit, any controversy or claim whatsoever arising out of or related to this Agreement, or breech thereof, will be settled by binding arbitration in accordance with the Federal Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

3. Alternatives. The parties may agree in writing to use any other mediation or arbitration procedures or rules in lieu of those specified in paragraphs 1 or 2.

(e) Law Governing and Venue. The law of the State of Texas govern this Agreement and no lawsuit may be prosecuted on this Agreement except in a court of competent jurisdiction located in Fort Bend County, Texas.

(f) Notices. Any notice required to be given by one party to another must be given in writing addressed to the party to be notified at the address set forth below, (a) by delivering the notice in person, (b) by depositing the notice in the U.S. Mail, certified or registered, return receipt requested, postage prepaid, or (c) by depositing the notice with Federal Express or another nationally recognized courier service for next day delivery, or (d) by sending the notice by telefax with confirming copy sent by mail. Notice deposited in the U.S. mail is deemed effective on the date of deposit. Notice given in any other manner is effective when received by the Party to be notified. For the purposes of notice, the addresses of the Parties, until changed by given notice to the other as provided herein, is as follows:

To the City: City of Sugar Land

Attn: Chris Steubing

P.O. Box 110

Sugar Land, Texas 77487-0110

To the District: Ft. Bend County Levee Improvement District No. 14

(g) Assignment. The District may not assign this Agreement to any other person or entity unless the City consents in writing to the assignment; provided, however, that the City agrees that Lecon may carry out any of the District’s obligations under this Agreement without any further consent or approval by the City.

[Signature Page Follows]

CITY OF SUGAR LAND FORT BEND COUNTY LEVEE IMPROVEMENT DISTRICT NO. 14

By:______________________________ By:_______________________________

Allen Bogard,

City Manager President, Board of Directors

Date: _________________________ Date: ____________________________

ATTEST:

______________________________

Glenda Gundermann, City Secretary

Reviewed for Legal Compliance: