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13 - Agreement with Nash for cost sharing of improvements - Johnson Woods CreekItem No. 13 R�� EN R", 1, MT TO: Mayor & City Council Grayson Path, City Manager FROM: Carla Easton, PE, Engineering & Community Development Director SUBJECT: JOHNSON WOODS BANK STABILIZATION — GARY NASH AGREEMENT DATE: July 27, 2020 BACKGROUND: The Johnson Woods Sewer & Drainage Improvement project was recently completed as part of the 2013 Bond Fund for Water and Sewer Improvements. The project included replacement of sanitary sewers as well as erosion protection along the drainage channel running from Lamar Avenue to Clark Lane, located between Johnson Woods Drive and 31St St SE. AECOM and Hayter Engineering Inc. prepared the construction drawings and specifications, and the work was completed by RBIS construction company. The work was accepted in February of this year. Gary and Rebecca Nash own lots 3 and 4, Block B of the Merry -Glen Addition located at 645 Johnson Woods Drive. Their home and swimming pool backs up to the drainage channel, which is within a 25 feet wide drainage and utility easement along their east property line. The channel has a natural bend along the Nash property, and due to the high water volumes and velocities, the area is prone to erosion of the channel bank through the years. Approximately 20 years ago, Mr. Nash built a wall along a portion of the creek bend. The wall was made from bags of concrete and rebar, called a sackrete wall, and it showed no signs of movement or failure during the Johnson Woods Sewer and Drainage project. The field decision was made by the design engineer as well as Mr. Nash that the wall would remain in place, and a new gabion basket wall would be constructed through the remaining part of the creek bend to appropriately protect the back from further erosion. The gabion wall was construction according to this plan and has held up nicely. However, the sackcrete wall is now a weaker section along the bend of the creek than the area reinforced by gabion baskets, and during spring rains the sackcrete wall did not hold up to the high velocity in the creek. The sackcrete wall was undermined, and has slid down into the creek where it is now an obstruction. STATUS OF ISSUE: Mr. Nash has approached the city for assistance with repairs to this wall section. Without a repair, the failed wall will eventually slide into the creek bottom and block flow in the channel. There is also a concern for stability of the bank along the Nash property because while the wall is displaced it is susceptible to severe erosion along the creek bend. As such, staff is recommending a cost share of the repairs with Mr. Nash in the amount up to $25,000. This approach will provide an engineered solution to the erosion concern in the channel rather than replacing with a substandard material that is at risk of failing in the future. The estimated cost to complete the project is $51,175, of which $11,175 is for the engineering design fee and $40,000 is anticipated for construction. Mr. Nash has agreed to pay upfront for 50% of the project cost up to the point where the city contribution reaches $25,000, and 100% of project costs after that. Staff feels this is a reasonable partnership in order to see this work is completed to industry standards consistent with the work that was recently completed by the city. Had the wall shown signs of failure during the project, the city would have incurred costs to remove/repair/replace the wall as part of the channel project. BUDGET: Funds are available in the engineering operations budget for the design, and the drainage maintenance budget for construction match. The maximum proposed contribution by the city is $25,000. RECOMMENDATION: Authorize the city manager to execute an agreement with Gary and Rebecca Nash for cost sharing of improvements necessary to replace a failed retaining wall along Johnson Woods Creek and adjacent to their property. 2 PHOTOS STATE OF TEXAS COUNTY OF LAMAR KNOW ALL MEN BY THESE PRESENTS: AGREEMENT THIS AGREEMENT is entered into this day of , 2020, by and between GARY NASH AND REBECCA NASH, hereinafter collectively referred to as "NASH," and the CITY OF PARIS, TEXAS, hereinafter referred to as "CITY". WHEREAS, NASH owns the property located at 645 Johnsons Woods Drive, Paris, Texas 75460, more particularly described as Block B, Lots 3 & 4 in the Merry -Glen Addition, which property backs up onto Johnsons Woods Creek ("the Creek"); and WHEREAS, the back of the NASH property suffers from erosion abutting the Creek; and WHEREAS, City maintains a drainage and utility easement of 35 feet, of which 25 feet is on the NASH property; and WHEREAS, in 2019 and 2020, pursuant to a 2013 bond package for improvement of water and sewer lines throughout the CITY, CITY performed major sewer improvements within said drainage and utility easement; and WHEREAS, concurrent with the sewer improvements, CITY also made drainage improvements to the Creek, which is a major natural waterway in the City, and which is vital to proper drainage within the Johnsons Woods area; and WHEREAS, NASH had made prior improvements to the back of their property prior to said sewer, and drainage improvements; and WHEREAS, as a part of said sewer, and drainage improvements, CITY installed erosion control measures including a gabion wall up to a sackrete wall on NASH's property; and WHEREAS, soon after the completion of the gabion wall, NASH's sackrete wall failed; and WHEREAS, NASH's property is at a bend in the Creek which the CITY would have armored as a part of the project had the NASH's sackrete wall not existed because it is critical to maintenance of the Creek as a viable major waterway that this area of the Creek be so armored; and WHEREAS, therefore, there is a public purpose and necessity for the CITY to replace the NASH's sackrete wall with a gabion wall; and WHEREAS, NASH and the CITY have agreed to share costs on the installation of the gabion wall on NASH's property; WHEREFORE, NASH and the CITY hereby agree as follows: 1.01 Description of Project: Design, engineering, and construction of a gabion wall along Johnsons Woods Creek at the rear of NASH's property located at 645 Johnsons Woods Drive, Paris, Texas, 75460, ("the Project") to wit: 1.02 Cost Sharing: The cost for completion of the Project is estimated to be $51,175.00. CITY has agreed to contribute TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($25,000.00) toward the cost of the Project. NASH agrees to contribute any and all additional funds to complete the Project. 1.03 CITY's Obligations: CITY will contract with a professional engineer to design the improvements, develop plans and specifications, and oversee bidding and construction of a gabion basket wall, connecting the recently constructed wall to an existing sackrete wall, repairing a section of the channel that has suffered severe erosion. CITY is responsible to manage all contracts for design and construction, and pay for services as indicated herein: - CITY will invoice NASH for one half of engineering contract at time of contract award, which will be held in an account set for this project. - CITY will pay all invoices for engineering associated with the project. - CITY will notify NASH of the cost of construction, as determined by actual construction bids, and will not proceed with construction activities until NASH acknowledges the final cost and remits payment to CITY. - CITY will invoice NASH for one half of the construction cost up to the amount at which the CITY's contribution from both engineering and construction expenses reaches $25,000. - CITY will invoice NASH for 100% of remaining cost once the total CITY contribution reaches $25,000. - CITY will pay all invoices owed to the construction contractor pursuant to the construction agreement. 1.04 NASH's Obligations: The NASH's will contribute one half of all project costs up until the CITY contribution reaches $25,000, at which point the NASH's will be responsible for the remainder of all costs. NASH will make necessary payments to the CITY, who in turn will oversee the design and construction contracts. Payments are due at time of invoicing and prior to beginning the work. 1.05 Nothing in this Agreement shall be construed as implying any partnership or joint venture of NASH and the CITY.. 2 1.06 CITY shall not be liable to NASH, NASH's agents, assigns, servants, employees, visitors, guests, or invitees, nor any pedestrian or bystander for any damage or injury caused by the acts or negligence of any person or entity or resulting from the operation of any device or equipment located upon the NASH property, or any appurtenance thereof, nor for any damage or injury from any defect or want of repair of any structure or device on the NASH property, or for any Act of God which might occur on the NASH property. 1.07 INDEMNIFICATION AND RELEASE NASH DOES HEREBY COVENANT AND CONTRACT TO INDEMNIFY, AND HOLD HARMLESS THE CITY, ITS EMPLOYEES, AGENTS, OFFICERS AND ELECTED OFFICIALS IN BOTH THEIR PUBLIC AND PRIVATE CAPACITIES, FROM AND AGAINST ALL THIRD PARTY LIABILITY, CAUSES OF ACTION, CITATIONS, CLAIMS, COSTS, DAMAGES, DEMANDS, EXPENSES, FINES, JUDGMENTS, LOSSES, PENALTIES OR SUITS, TO THE EXTENT THE SAME RESULT FROM CONTRACTOR'S PERFORMANCE UNDER THIS CONTRACT AND WHICH ARE CAUSED BY THE INTENTIONAL WRONGFUL ACTS OR NEGLIGENT ACTS OR OMISSIONS OF ANY PARTY (THE "INDEMNIFIED ITEMS") SUBJECT TO THE LIMITATIONS IN TEXAS LOCAL GOVERNMENT CODE § 271.904 AND TEXAS CIVIL PRACTICE AND REMEDIES CODE, § 130.002(B). BY WAY OF EXAMPLE, THE INDEMNIFIED ITEMS MAY INCLUDE BODILY INJURY AND DEATH CLAIMS AND THIRD PARTY TANGIBLE PROPERTY DAMAGE CLAIMS, OR FAILURE TO PAY A CONTRACTOR, SUBCONTRACTOR, OR SUPPLIER. INDEMNIFIED ITEMS SHALL INCLUDE REASONABLE ATTORNEYS' FEES AND COSTS, COURT COSTS, AND SETTLEMENT COSTS. INDEMNIFIED ITEMS SHALL ALSO INCLUDE ANY EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES, INCURRED BY AN INDEMNIFIED INDIVIDUAL OR ENTITY IN ATTEMPTING TO ENFORCE THIS INDEMNITY. Furthermore, NASH hereby releases and holds harmless the CITY and its employees, agents, officers, and elected officials from any and every potential cause of action, including but not limited to personal injury or death to any party or property damage, arising from CITY's participation with NASH in this Project. This release extends to the planning, preparation and construction of the Project as well as to any future drainage or erosion related damages that may arise relating to the placing and construction of the gabion wall. 1.08 CITY will not be responsible for faulty work, repeat work that was due to the error or omission of any party, or mechanical breakdown of equipment. 1.09 The provisions of this Agreement are severable, and if any provision or part of this Agreement or the application thereof to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement shall not be affected thereby. 1.10 This Agreement embodies the entire understanding between the parties and there are no prior effective representations, warranties, or agreements, written or oral, between the parties. 1.11 This Agreement shall be subject to all present and future valid laws of the United States, State of Texas, and Ordinances of the City of Paris. 1.12 All services to be performed hereunder shall be and are to be rendered exclusively in Lamar County, Texas. Venue for any State Court cause of action arising out of or in any way related to this contract shall lie exclusively in the courts of Lamar County, Texas, and venue for any Federal Court cause of action shall lie exclusively in the U.S. District Court for the Eastern District of Texas, Sherman Division. Executed in duplicates, each of which is deemed to be original and as of the day and date first written in this Agreement. This Agreement will be effective on _ 12020. NASH Gary Nash Rebecca Nash ATTEST: Address forgiving notices: 645 Johnsons Woods Drive Paris, Texas 75460 CITY OF PARS, TEXAS 4 By: City Manager ATTEST: Address for giving P.O. Box 9037 Paris, TX 75460 notices: