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HomeMy WebLinkAboutResolution No. 08-087 CITY OF THE COLONY, TEXAS RESOLUTION NO. 08-087 A RESOLUTION OF THE CITY OF THE COLONY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF A CHALLENGE PARTNERSHIP AGREEMENT BY AND BETWEEN THE CITY OF THE COLONY AND THE US ARMY CORPS OF ENGINEERS FOR THE MANAGEMENT AND DEVELOPMENT OF "LOW DENSITY" RECREATION WITHIN WILDLIFE MANAGEMENT AREAS, AS ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT "A"; AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City has determined that it is in the best interest of the City to enter into the Agreement with the US Army Corps of Engineers; and WHEREAS, the City and the US Army Corps of Engineers desire to enter into this Agreement for the management and development of "low density" recreation within wildlife management areas, which is attached attached hereto and incorporated herein as Exhibit "A". NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: Section 1. That the City Council of the City of The Colony, Texas hereby approves the Challenge Partnership Agreement between the City of The Colony and the US Army Corps of Engineers, which is attached hereto and incorporated herein as Exhibit "A". Section 2. behalf of the City. That the City Manager is authorized to execute the Agreement on Section 3. passage. That this resolution shall take effect immediately from and after its PASSED AND APPROVED by the City Council of the City of The Colony, Texas, this 15th day of Sevtember. 2008. ATTEST: ,/1 !~ It. (, r" (I; ~ I L!lA.l . ;-... ( I, /V }.'. ,,- Christie Wilson, TRMC, City Secretary APPROVED AS TO FORM: Dillard, Mayor of The Colony, Texas CHALLENGE PARTNERSHIP AGREEMENT BETWEEN THE US ARMY CORPS OF ENGINEERS AND the CITY of THE COLONY FOR MANAGEMENT AND DEVELOPMENT OF "LOW DENSITY" RECREATION WITHIN WILDLIFE MANAGEMENT AREAS THIS AGREEMENT, entered into this /'(day of ~5ef-1. , 2008, by and between the U.S. Army Corps of Engineers (hereinafter the "Corps"), represented by the District Commander, U.S. Army Engineer Fort Worth District, represented by his duly authorized designated official, and the City of The Colony (hereinafter the "Partner"), represented by their duly authorized designated official. WITNESSETH, THAT: WHEREAS, the Corps stewardship mission is to manage and conserve those natural resources, consistent with ecosystem management principles, while providing quality public outdoor recreation experiences to serve the needs of present and future generations, and WHEREAS, the Corps manages for long-term public access to, and low density recreation use of, the natural resources in cooperation with other Federal, State, and local agencies as well as the private sector, and WHEREAS, the Corps conserves natural resources and integrates the management of diverse natural resource components such as fish, wildlife, forests, wetlands, grasslands, soil, air, shoreline management, and water with the provision of public recreation opportunities that contribute to the quality of American life, and WHEREAS, the Corps conducted a Programmatic Environmental Assessment (PEA) entitled "Programmatic Environmental Assessment on Allowable Adjacent Landowner Activities Incorporating Ecosystem Management Practices on Federal Lands at Grapevine and Lewisville Lakes, Texas", dated May 2005, WHEREAS, the PEA received a Finding of No Significant Impact (FONSI), dated May 2005, which concluded that it is in the best interest to enter into agreements with Groups in order to implement the Elm Fork Project Shoreline Management Plans and promote stewardship of our Natural Resources, and WHEREAS, groups refer to (in order of precedence) Cities, Natural Resource / Conservation Groups, Homeowners Associations, and ifnone of these groups exist "grouping of individual adjacent landowners", and ifthat's not possible "individual adjacent landowners", and WHEREAS, the Challenge Partnership program, as authorized by Section 225 of the Water Resources Development Act of 1992, shall be used to provide opportunities for non- Federal public (entity) and private groups and individuals to contribute to and participate in the operation and/or management of recreation facilities and natural resources at Corps water resource development projects as a way to maximize the impact of federal appropriations while effectively managing Corps assets and 1 CHALLENGE PARTNERSHIP AGREEMENT BETWEEN THE US ARMY CORPS OF ENGINEERS AND the CITY of THE COLONY FOR MANAGEMENT AND DEVELOPMENT OF "LOW DENSITY" RECREATION WITHIN WILDLIFE MANAGEMENT AREAS WHEREAS, state and local government agencies serve the needs of state and local residents and manage regionally significant resources and impact regional economies, and as public entities, have an inherent stewardship responsibility to manage the recreation resources under their jurisdiction, and may utilize the availability of natural resources, funding and professional expertise needed to carry out this responsibility; and will be encouraged to develop and administer project lands allocated for public park and recreational purposes through lease agreements, and WHEREAS, challenge partnership agreements may be used for the identification, protection, improvement, rehabilitation, preservation, management, or interpretation of natural resources, environmental features, recreation areas and facilities, or cultural resources, and WHEREAS, the Partner has the same Natural Resource Values as the Corps and wants to assist in managing the land consistent with the Corps Mission and PEA requirements for the whole public (not just adjacent landowners) for the present and future generations, and WHEREAS, it is mutually beneficial for the Corps and the Partner to work jointly and cooperatively to improve and protect the Natural Resources and shoreline areas of the designated Corps lands as indicated on the attached drawing; and WHEREAS, the Partner is also interested in requesting authority to install, operate, and maintain low density recreation improvements within Natural Resource Management areas such as, but not limited to, trails; trail heads (ie. parking lots, restrooms, etc.); signs; the installation and management of fishing platforms, wildlife observations platforms, gravel spawning beds; etc., and WHEREAS, the Corps and the Partner have the full authority and capability to enter into a lease with the partner and perform as hereinafter set forth and intend to cooperate in the challenge partnership in accordance with the terms of this agreement; NOW THEREFORE, the Corps and the Partner agree as follows: ARTICLE I - DEFINITIONS AND GENERAL PROVISIONS F or purposes of this agreement: 1. The term "permitted area" is the Federal Property designated as Wildlife Management Areas within the Partner's city limits and extra territorial jurisdiction. 2 CHALLENGE PARTNERSHIP AGREEMENT BETWEEN THE US ARMY CORPS OF ENGINEERS AND the CITY of THE COLONY FOR MANAGEMENT AND DEVELOPMENT OF "LOW DENSITY" RECREATION WITHIN WILDLIFE MANAGEMENT AREAS 2. Authorized activities within permitted area include: a. management of Mowing and Underbrushing Zone (MUZ) area within PEA guidance, and b. management of Narrow Shoreline Variance (NSV A) areas within PEA guidance, and c. management of Habitat Management Zone (HMZ) areas within PEA guidance, and d. installation of improvements and facilities within the above listed zones as deemed prudent and as authorized within the Corps Land Use Classification guidelines. 3. This agreement in no way restricts the Government from participating in similar activities or arrangements with, or accepting contributions from, other public and private agencies, organizations, and individuals. 4. All property, facilities and improvements placed on Government land as well as any work accomplished under this agreement shall become the property of the Corps; however, all such property facilities and improvements shall be managed by the Partner. Note: Any improvements constructed or placed on the premises under a lease will be subject to the conditions ofthe lease. 5. The Partner and the Corps, by mutual agreement, may sub-assign mowing and underbrushing responsibilities to Corps-approved assignee(s). ARTICLE II - OBLIGATIONS OF THE PARTIES 1. The Corps, subject to availability of funds appropriated by the Congress of the United States, shall: a. Grant a separate Real Estate instrument to the City (ie. Low Density Park and Recreation Lease or License) for the use of government owned real property, should such use be deemed appropriate by the parties. Any resulting instrument will not merge with the Agreement. b. Provide review and give necessary approvals or disapprovals in a timely manner to the Partner for any and all proposals, programs, special events, suggestions and other activities in which the Partner might wish to engage. c. Assist the Partner in working with adjacent landowners that may violate the provisions of this agreement. d. Provide assistance in developing ecosystem prescriptions. e. Ifneeded, assist in the prosecution of violators of this agreement in State and/or Federal courts in support of the partner, as necessary, f. Where necessary, install boundary markings and necessary signage to identify the Federal boundary line and identify the 50 foot mow zone / start of the Habitat Management Zone. 3 CHALLENGE PARTNERSHIP AGREEMENT BETWEEN THE US ARMY CORPS OF ENGINEERS AND the CITY of THE COLONY FOR MANAGEMENT AND DEVELOPMENT OF "LOW DENSITY" RECREATION WITHIN WILDLIFE MANAGEMENT AREAS 2. The Partner shall agree to the activities within the following areas: a. MUZ Area - Within this area, the Partner is authorized to implement but not required to implement, the mow zones as identified in the PEA. Wherever the Partner elects to implement the MUZ areas, they may either mow and/or underbrush the permitted area themselves, contract the work to a responsible firm, and/or sub-permit the work to conservation groups and/or adjacent landowners. Note: If the Partner elects to issues sub-permits, the partner is authorized to collect administrative fees to recover those costs. The Partner shall ensure that the following Mowing and Underbrushing Guidelines are followed, within the permitted area: 1) May mow (not less than three inches in height) or remove underbrush and vines utilizing mechanical or chemical means within the permitted area. Only certified applicators, certified by the Texas Department of Agriculture, may apply pesticides within the permitted area. Any pesticide used on the permitted area must be applied in accordance with the EPA-approved label and must be suitable for use in or near bodies of water. The use of herbicides on the permitted area is restricted to post- emergent foliar or basal trunk applications. Herbicides shall be used only for the selective control of vines, non-native species, and thicket-forming species as set forth in the Ecosystem Vegetation Management Prescription in the PEA. Use of pre- emergent, broadcast or soil-active herbicides is prohibited. Mowing equipment shall be lightweight equipment designed for managing turf areas. Note: No heavy, farm type tractors or mowers will be allowed. 2) Mature trees may be pruned to a height of 10 feet. 3) Trees with a trunk diameter greater than two inches at a point 12 inches above ground may not be removed without Corps approval. Note: Beneficial shrub species may not be removed including; but not limited to, Mexican Plum, coral berry, deciduous holly (possumhaw), rusty blackhaw, and eastern redbud. 4) In general, dead trees and tree limbs may be removed from the permitted area unless they are determined to be structurally sound or is serving as wildlife habitat and do not pose a threat to pedestrians or private property. 5) If chipping of underbrush and tree trimmings is to be performed; then, the chips may be distributed on Corps property within the permitted mowing area if the chips are not deeper than 12 inch. 6) Sowing or planting of non-native species are prohibited. Only planting of native (to this region) drought resistant grasses, shrubs, and trees are permitted. 4 CHALLENGE PARTNERSHIP AGREEMENT BETWEEN THE US ARMY CORPS OF ENGINEERS AND the CITY of THE COLONY FOR MANAGEMENT AND DEVELOPMENT OF "LOW DENSITY" RECREATION WITHIN WILDLIFE MANAGEMENT AREAS b. NSV Area - Narrow Shoreline Variance areas as shown in the PEA are authorized to be implemented but not required to be implemented. These zones are areas where additional mowing are authorized (between the Federal property line and the conservation pool) and have been identified because they are too narrow to support viable wildlife habitat management. If the NSV areas are implemented, the Partner must obtain mitigation funds within PEA guidance and are hereby authorized to utilize these Mitigation funds for the beneficial purposes within their leased Low Density Recreation habitat management zone areas. Any mitigation funds collected from the NSV areas will be retained by the Partner and utilized for restoration of the Federal Property. The Partner will provide the Corps with an accounting of any of these mitigation restoration funds collected and identify how the funds were expended within the permitted area. Note: The Corps will need to review and approve the Partner's mitigation/restitution plan prior to expenditure. c. DMZ Area - The Partner is authorized to implement Corps-approved, ecosystem-based Vegetation Management Prescriptions within these permitted areas classified as wildlife management/low-density recreation within the guidelines of the PEA, as deemed necessary. These areas are specifically authorized for low density recreation purposes such as hiking, fishing, horseback riding, bird watching, nature study, hunting (in authorized areas), and other similar activities d. Install Natural Resource Facilities: The Partners is authorized to install these types of facilities within all permitted areas as authorized by the Corps on a case-by-case basis. Please direct any requests for authority to install, operate, and maintain Natural Resource facilities such as; but not limited to, the installation and management of trails, fishing docks, wildlife observations platforms, gravel spawning beds, etc., to the Lewisville Lake Manager. NOTE: The Partner is required to provide conceptual drawings, plan of operation and maintenance, to obtain authority from the Corps to install, operate, and maintain such features for the public. This agreement does not and cannot authorize private exclusive utilization of any land, water, or feature. e. Enforce All Avvlicable Laws and/or REGULATIONS within uermitted areas: The City may enact or extend their ordinances (including vegetation / tree) onto Federal Property and enforce those ordinances in accordance with State and Title 36 Code of Federal Regulations. Any punitive and or administrative funds collected by the Partner may be kept and utilized by the partner. Any restitution collected for damages to Federal Property, will be retained by the Partner and utilized for restoration of the Federal Property. The Partner will provide the Corps with an accounting of any restoration funds collected and identify how the funds were expended within the permitted area. Note: The Corps will need to review and approve the Partner's Restitution Plan prior to expenditure. 5 CHALLENGE PARTNERSHIP AGREEMENT BETWEEN THE US ARMY CORPS OF ENGINEERS AND the CITY of THE COLONY FOR MANAGEMENT AND DEVELOPMENT OF "LOW DENSITY" RECREATION WITHIN WILDLIFE MANAGEMENT AREAS ARTICLE III - DISPUTE RESOLUTION As a condition precedent to a party bringing any suit for breach of this Agreement, that party must first notify the other party in writing of the nature of the purported breach and seek in good faith to resolve the dispute through negotiation. If the parties cannot resolve the dispute through negotiation, they may agree to a mutually acceptable method of non-binding alternative dispute resolution with a qualified third party acceptable to both parties. The parties shall each pay 50 percent of any costs for the services provided by such a third party as such costs are incurred. The existence of a dispute shall not excuse the parties from performance pursuant to this Agreement. ARTICLE IV - FEDERAL AND STATE LAWS In exercise of their respective rights and obligations under this Agreement, the Government and the Partners agree to comply with all applicable Federal and State laws and regulations, including, but not limited to, Section 601 of Title VI of the Civil Rights Act of 1964, PL 88-352, and the Department of Defense Directive 5500.11 issued pursuant thereto and published in Part 300 of Title 32, Code of Federal Regulations, as well as Army Regulations 600.7, entitled "Non- discrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army." ARTICLE V - RELATIONSHIP OF PARTIES a. In the exercise oftheir respective rights and obligations under this Agreement, the Corps and the Partner each act in an independent capacity, and neither is to be considered the officer, agent, or employee of the other. b. In the exercise of its rights and obligations under this Agreement, neither party shall provide, without the consent of the other party, any contractor with a release that waives or purports to waive any rights such other party may have to seek relief or redress against such contractor either pursuant to any cause of action that such other party may have or for violation of any law. c. This agreement shall not supercede or alter any other agreements, including but not limited to, any agreement held between a Partner and the Government or any agreement held by the Partner. This agreement is a separate instrument. 6 CHALLENGE PARTNERSHIP AGREEMENT BETWEEN THE US ARMY CORPS OF ENGINEERS AND the CITY of THE COLONY FOR MANAGEMENT AND DEVELOPMENT OF "LOW DENSITY" RECREATION WITHIN WILDLIFE MANAGEMENT AREAS ARTICLE VI - OFFICIALS NOT TO BENEFIT No member of or delegate to the Congress, or resident commissioner, shall be admitted to any share or part of this Agreement, or to any benefit that may arise therefrom. ARTICLE VII - INDEMNIFICATION To the extent allowed by law, each Partner shall hold and save the Government and the other Partners party to this agreement free from all damages arising from services it performs or provides for the construction, operation, maintenance, repair, replacement, and rehabilitation of the permitted area, except for damages due to the fault or negligence of the Government, Partners, or their contractors. This provision does not and shall not be construed to waive any sovereign or governmental immunity or other available defense under State or Federal law. Additionally, this Agreement does not create any rights or obligations to any person who is not a party to this Agreement. ARTICLE VIII - DURATION OF AGREEMENT This agreement shall be effective for no more than five years commencing on the day following the ratification of this agreement by the Corps. This agreement will automatically renew for another five-year period on January 1 of the last year, unless a Partner gives notice of cancellation before the date of renewal. ARTICLE IX - TERMINATION OR SUSPENSION a. If at any time the Partner fails to fulfill its obligations under this Agreement, the District Commander, or his designee, shall terminate this Agreement or suspend future performance under this Agreement unless he/she determines that continuation of work is in the interest of the United States. b. If the Corps or the Partner fails to receive annual appropriations in amounts sufficient to meet the required expenditures for the then-current or upcoming fiscal year, either party should notify the other party, and 60 days thereafter either party may elect without penalty to terminate this Agreement or to suspend future performance under this Agreement. In the event that either party elects to suspend future performance under this Agreement pursuant to this paragraph, such suspension shall remain in effect until such time as either party receives sufficient appropriations or until either the Corps or the Partner elects to terminate this Agreement. 7 CHALLENGE PARTNERSHIP AGREEMENT BETWEEN THE US ARMY CORPS OF ENGINEERS AND the CITY of THE COLONY FOR MANAGEMENT AND DEVELOPMENT OF "LOW DENSITY" RECREATION WITHIN WILDLIFE MANAGEMENT AREAS c. This Agreement may be terminated upon written request by either party with a 60 days written notice. Any lease to the Partner resulting from this agreement may be terminated if the Agreement expires or is cancelled for any reason. ARTICLE X - NOTICES a. Any notice, request, demand, or other communication required or permitted to be given under this Agreement shall be deemed to have been duly given if in writing and delivered personally or by telegram, or mailed either by first-class, registered, or certified mail, as follows: If to the Partner: Mayor, John Dillard City Manager, Dale Cheatham City Hall 6800 Main Street The Colony, Texas 75056 If to the Corps: District Commander U.S. Army Engineer District Elm Fork Project Office 1801 N. Mill Street Lewisville, Texas 75057-1821 b. A Partner may change the address to which such communications are to be directed by giving written notice to the other Partner in the manner provided in this Article. c. Any notice, request, demand, or other communication made pursuant to this Article shall be deemed to have been received by the addressee at the earlier of such time as it is actually received or seven calendar days after it is mailed. ARTICLE XI - CONFIDENTIALITY To the extent permitted by the laws governing each Partner, the Partners agree to maintain the confidentiality of exchanged information when requested to do so by the providing Partner in accordance with State and Federal law.. 8 CHALLENGE PARTNERSHIP AGREEMENT BETWEEN THE US ARMY CORPS OF ENGINEERS AND the CITY of THE COLONY FOR MANAGEMENT AND DEVELOPMENT OF "LOW DENSITY" RECREATION WITHIN WILDLIFE MANAGEMENT AREAS IN WITNESS WHEREOF, the Partners hereto have executed this Agreement, which shall become effective upon the date it is signed by the Commander, Ft. Worth District. The Department of the Army BY: ~ Charles L. Bur Acting Chief, Operations Division Fort Worth Engineer District Acting on behalf of the District Engineer City of The Colony: B~ ~CU- Dale Cheatham City Manager Authorized Person Acting on the behalf of the Mayor - ..}- I ~/ -, ,7 DATE: ~ (f~' - I ".,>-L'u DATE: 2L> t>cfol-- ZoOg 9