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HomeMy WebLinkAbout1136 Right-of-Way Use and Maintenance Agreement with Levee District BILL NO. 2012-042 ORDINANCE NO. ��� AN ORDINANCE APPROVING A RIGHT-OF-WAY USE AND MAINTENANCE AGREEMENT WITH THE RIVERSIDE-QUINDARO BEND LEVEE DISTRICT OF PLATTE COUNTY, MISSOURI IN CONNECTION WITH THE CONSTRUCTION OF IMPROVEMENTS TO THE QPS DETENTION POND AREA, RATIFIYING AND CONFIRMING THE EXECUTION AND DELIVERY OF SAME, AND AUTHORIZING CERTAIN ACTIONS IN CONNECTION THEREWITH. WHEREAS, in connection with the Riverside Horizons development project the City has proposed a project to perform work to the QPS Detention Pond area located within the right of way owned by the Riverside-Quindaro Bend Levee District of Platte County, Missouri (hereinafter "Levee DistricY'); and WHEREAS, the Board of Aldermen find it is in the best interest of the City to enter into an agreement with the Levee District for the use of such right of way and maintenance of the public improvements constructed in substantially the same form as set forth in Exhibit A attached hereto; NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS: SECTION 1— AGREEMENT APPROVED. That the Right of Way Use and Maintenance Agreement by and between the City of Riverside and the Levee District, in substantially the same form as attached hereto as Exhibit A(which is incorporated herein by reference) is hereby approved. Further, the execution of such Agreement and the delivery of same to said Levee District is hereby authorized, ratified and confirmed. SECTION 2— AUTHORITY GRANTED. That all actions heretofore taken by the o�cers, representatives and agents of the City in connection with the transaction contemplated by this Ordinance are hereby ratified and confirmed, and the City shall, and the officers, representatives and agents of the City are hereby authorized and directed to, take such further action, and execute and deliver such other documents and instruments as may be necessary or desirable to carry out and comply with the intent of this Ordinance, and to carry out, comply with and perform the duties of the City with respect to the Right of Way Use and Maintenance Agreement. SECTION 3- EFFECTIVE DATE. That this Ordinance shall be in full force and effect from and after its passage and approval. BE IT REMEMBERED that the above was read two times by heading only, PASSED AND APPROVED by a majority of the Board of A erm and APPROVED by the Mayor of the City of Riverside, Missouri, this J'7�-day of , 2012. ��������� , Mayor Kathleen L. Rose p ATTEST: Approved s to form: � i U Robin Littrell, C ty Clerk y om on, tty Attomey RIGHT-OF-WAY USE AND MAINTENANCE AGREEMENT THIS AGREEMENT, made and entered into this � day of , 2012, by and between the Riverside-Quindaro Bend Levee District of Platte un'�6 ty, �A�Iissouri, a political subdivision organized pursuant to the laws of the State of Missouri ("Levee DistricY') and the City of Riverside, Missouri (the "Project Sponsor"). WITNESSETH: WHEREAS, the Levee District is the Local Sponsor under a Project Cooperation Agreement ("PCA") dated September 23, 1997, between the Levee District and the Department of Army ("GovernmenY') for the construction of the Missouri River Levee Unit L-385 ("Levee ProjecY'); and WHEREAS, pursuant to the PCA, the Levee District obtained all Right-of-Way (ROW), Flood Protection Levee Easements (FPLE) and other real estate interests required for the Levee Project; and WHEREAS, Article III of the PCA requires the Levee District to ensure that the right- of-way obtained for the Levee Project is retained in public ownership; and WHEREAS, the Government and the Levee District have the responsibility to ensure that all improvements which pass over, under or through the walls, levees, improved channels or floodways, or construction within the Levee District ROW, the FPLEs and/or within the Levee Critical Area (LCA) of the Levee Project, or any change to any feature of the flood protection system do not take place without prior determination of the Government and the Levee District that the construction will not adversely affect the functioning of the Levee Project or the rights of the Levee District in the FPLEs or Levee District ROW; and WHEREAS, the LCA is generally defined as the area of land extending 300 feet riverward and 500 feet landward from the centerline of the L-385 Levee; and WHEREAS, the Levee District is obligated to ensure that the operation and maintenance of the L-385 flood protection system will be in accordance with Title�33 of the Code of Federal Regulations; and WHEREAS, the Government and the Levee District have the further responsibility to ensure that construction within the LCA, ROW and/or the FPLEs is completed in accordance with the plans, design and specifications approved by the Government and the Levee District (the "Approved Plans"); and WHEREAS, the Levee District has adopted a set of Procedures for Work for all work being proposed and undertaken within the Levee District ROW, FPLEs and/or LCA, said Procedures being incorporated herein and made a part hereof by this reference (the "Procedures for Work"); and 1 WHEREAS, the Levee District has heretofore provided or contemporaneously herewith provides the Project Sponsor with the Procedures for Work; and WHEREAS, the Project Sponsor is proposing a project to perform work on and make improvements to the QPS detention pond azea located within the Levee DistricYs ROW (the "Proposed ProjecP') which is part of the lazger Horizons Development Project; and WHEREAS, the changes in the shape, depth and contours of the Levee District's QPS detention pond, as part of the Proposed Project, will not result in the detention of water on areas of property owned by the Project Sponsor which aze outside the current Levee District ROW; and WHEREAS, the plans, design and specifications for the Proposed Project aze required to be reviewed and approved by the Levee District's engineer and the Government; and WHEREAS, the Levee District desires to remain eligible for flood disaster relief benefits under P.L. 84-99; and WHEREAS, the Levee District engineer will provide the Project Sponsor with written notification of the approval of the plans, designs and specifications for the Proposed Project; and WHEREAS, the Proposed Project is not located within the LCA or any FPLE; and WHEREAS, the Levee District is mandated by Federal regulations and policies to ensure that construction within the ROW conforms to the Approved Plans; and WHEREAS, the Levee District will have a field representative providing observation of excavation, grading and construction within the Levee District ROW; and WHEREAS, under the Procedures for Work the Project Sponsor is obligated to pay for the field observation services provided by the Levee District's representative in connection with the construction and work within the Levee District ROW. NOW, THEREFORE, in consideration of the respective covenants and agreements made by each party herein and the mutual benefits to be received by each party hereto, the Levee District and Project Sponsor agree as follows: 1. The parties acknowledge that the primary purpose of the L-385 Levee Project is to provide flood protection. The Project Sponsor's use of the area within the Levee District ROW shall be subordinate to the Levee DistricYs rights for operation and maintenance of the Levee Project and for flood protection and flood fighting purposes. 2. The Project Sponsor shall include survey control requirements as part of the plans, design and specifications for the Proposed Project and shall require the contractor performing the work on the Proposed Project to establish the survey control requirements prior to performing 2 any work on the Proposed Project located within the Levee District ROW, provided, however, the Levee District may allow the Project Sponsor to undertake work on the Proposed Project located within the Levee District ROW prior to establishing the survey control requirements, in which case the survey control requirements shall be established as soon as reasonably possible following the commencement of such work with in the Levee District ROW. 3. Following approval of the plans, design and specifications for the Proposed Project the Approved Plans shall be incorporated herein and made a part of this Agreement by this reference as if fully set forth herein. 4. The Project Sponsor agrees that all work and construction on the Proposed Project shall be in accordance with the Approved Plans and that the Proposed Project improvements (the "Improvements") will be located as shown on the Approved Plans. Following completion of the Improvements, the Project Sponsor shall promptly restore all azeas within the Levee District ROW which were affected by the work on the Improvements to a similaz condition as existed immediately prior to the work on the Improvements, except that the Project Sponsor shall not be obligated to restore areas within the Levee District ROW which have been changed or modified in accordance with the Approved Plans. 5. The Levee District hereby agrees to the Project Sponsor beginning work on the Proposed Project provided that (a) the Project Sponsor has a pre-construction meeting which shall include the Levee District engineer prior to beginning work on the Proposed Project and (b) the Project Sponsor, its engineer or its contractor shall notify the Levee District and its engineer in writing or by email at least 48 hours prior to beginning construction in order for a representative of the Levee District engineer to be present during construction. 6. Promptly following the approval of the Plans by the Government and the Levee District, the Project Sponsor shall deliver to the Levee District engineer three half-size sets of Approved Plans for the Improvements. 7. The Project Sponsor and Levee District acknowledge and agree that water in the detention pond shall be allowed to flow and be detained within canals, waterways and other water ponding areas located upon property owned by the Project Sponsor. The Project Sponsor agrees to construct the Improvements in accordance with the Approved Plans and that it will not decrease the storage capacity for water in the QPS detention pond. In the event the water storage capacity of the QPS detention pond is decreased by the Project Sponsor and water in the QPS detention pond flows or is detained upon property outside the current QPS detention pond ROW boundaries, to the extent allowed by law, the Project Sponsor shall hold the Levee District harmless and shall indemnify the Levee District against all liability, obligations, losses, claims, costs, expenses and fees, including, attorney's fees, incurred by the Levee District which arise from or aze the result of water flowing or being detained upon real property outside the existing QPS detention pond ROW boundaries. . 8. In the event the Levee District engineer determines that any work is not in compliance with the Approved Plans, the Levee District engineer shall have the authority to notify the Project Sponsor and/or its contractor of the non-complying work and shall have the authority to 3 suspend all work which is not in compliance with the Approved Plans. Following such notification, the Project Sponsor agrees to cause its contractor and all other parties performing such non-complying work to suspend all work which is not in compliance with the Approved Plans. The failure to suspend all work which is not in compliance with the Approved Plans may cause irreparable injury to the Levee Project. Therefore, in addition to any other remedies available under this Agreement or applicable law, the Levee District shall be entitled to seek injunctive relief or such other order from a court to specifically enforce the provisions of this Agreement. To the extent allowed by law, the Project Sponsor shall indemnify the Levee District and hold the Levee District hazmless from and against any and all actions, suits, proceedings, liabilities, damages, losses, costs and expenses, including attorneys' fees, arising out of or in connection with any breach or failure to perform by the Project Sponsor of any one or more provisions of this Agreement. 9. Any proposed modifications of the Approved Plans, whether such modifications occur prior to or during construction, shall be presented to the Levee District engineer for review and forwarding to the Government for review and comments. The Levee District engineer and the Government must approve all such proposed modifications by letter or email before the modified work is performed. 10. The current permanent Levee District right-of-way limits will be maintained and unaltered by this Agreement. 11. The Project Sponsor shall be responsible for the inspection, physical maintenance, repair and/or replacement of the Improvements located within the Levee District ROW, and the Project Sponsor agrees to maintain the Improvements in good condition. The Project Sponsor shall give the Levee District engineer not less than 48 hours notice in writing or by email (except in the case of emergency repairs in which case the Project Sponsor shall give the Levee District engineer reasonable advance notice) prior to undertaking any maintenance, repair or replacement work with respect to the Improvements located upon or within the Levee District ROW. All such work activities may be observed by the Levee District engineer or other Levee District personnel. All inspections, maintenance, repairs and replacement work shall be at the Project Sponsor's exclusive cost. 12. Except as otherwise provided in this Agreement, the Levee District shall be wholly responsible for the inspection, maintenance, operation, repair and replacement of the levee improvements and for all flood fighting activities within and upon the Levee District ROW. In the event the Levee District determines that any of the Project Sponsor's Improvements require maintenance, repair or replacement in order for the Levee District to comply with the requirements of Title 33 of the Code of Federal Regulations, the L-385 Operation and Maintenance Manual and other applicable regulations, the Levee District shall give the Project Sponsor written or email notice of said needed work and the Project Sponsor shall promptly undertake said needed work at its exclusive cost. The Levee District shall not be responsible to the Project Sponsor for damages to the Improvements which may occur as a result of the Levee District performing maintenance, repair and/or replacement work or flood fighting and flood protection activities. The Levee District shall not be obligated to repair, replace or restore any of the Improvements which may be damaged or otherwise affected by the Levee District's 4 performance of maintenance, repair and/or replacement work or flood fighting and flood protection activities. 13. In the event the Levee District determines that the Improvements within the Levee ROW need to be altered and/or modified in connection with the Levee District's repairs or replacement of levee improvements, or in connection with flood fighting and flood protection activities, the Levee District shall give the Project Sponsor written notice of said needed alteration and/or modification of the Improvements thereby affected. The alterations and/or modifications will be designed using the best efforts to preserve the aesthetic qualities of the Improvements as originally designed and constructed by the Project Sponsor. Upon receipt of notification that the plans for the alteration and/or modification of the Improvements have been approved by the Government and the Levee District, the Project Sponsor shall promptly undertake such alteration and/or modification of the Improvements and be solely responsible for all costs of such alteration and/or modification work. 14. To the extent permitted by law, the Project Sponsor agrees to indemnify the Levee District and hold the Levee District harmless from and against its actual costs, damages, liabilities, obligations and expenses which the Levee District may incur caused by the construction and placement of the Improvements within the Levee District ROW, specifically the loss of or ineligibiliTy to receive federal flood disaster relief benefits under P.L. 84-99 by reason of the presence of any Improvements within the Levee District ROW. 15. With respect to the Proposed Project the Project Sponsor agrees to comply with the Procedures for Work, including the payment of the engineering services provided by the Levee District engineer and the payment of the field observation services provided by the Levee District representative on the Proposed Project in accordance with the terms and provisions of the Procedures for Work. , 16. Upon completion of all of the Improvements within the Levee District ROW, the Project Sponsor shall provide the Levee District engineer with three (3) full-size sets of the as- built drawings of the Improvements. 17. Within one hundred eighty (180) days following the completion of the work on the Improvements within the Levee ROW, the Levee District and the Project Sponsor shall execute an Addendum to this Agreement setting foRh the specific terms and provisions on (i) the responsibility for maintenance of the detention pond, (ii) the responsibility for the costs of maintenance thereof, (iii) the responsibility for the costs of increasing the Quindazo pump station piping and/or pumping capacity (should it be later determined that increased capacity is needed), and (iv) the responsibility for the actions required to allow the Government and the Levee District to observe, investigate and collect data on the occurrence of sand boils within the detention pond following a high water event. The Levee District and the City acknowledge that additional data and information are required to finalize the provisions relating to the foregoing matters. 18. This Agreement shall be binding upon the parties hereto and their respective successors and assigns. 5 19. This Agreement and the terms and provisions herein shall be construed and interpreted in accordance with the laws of the State of Missouri. IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate originals the day and yeaz set forth by their respective signatures. RIVERSIDE-QUINDARO BEND LEVEE DISTRICT OF PLATTE CO MISSOURI By: �L���� � Donald P. Coleman President of Levee District Board of Supervisors Date: �7 // CITY OF RIVERSIDE, MISSOURI Name & Address of Project Sponsor By: b'l� Representative forinvoicing purposes: athleen L. Rose, ayor Date: r /— / � / Z C �� o� ��� i v�f��S�� De. � aq�o N�_ �,�',�; �,� �d. �,�-S `, d e �'1 � �� i.�� 6