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2002-043AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE AN INTERLOCAL COOPERATION AGREEMENT BY AND BETWEEN THE CITY OF DENTON, TEXAS AND THE COUNTY OF DENTON, TEXAS PERTAINING TO THE MAINTENANCE RESPONSIBILITIES OF THE CITY REGARDING CERTAIN COUNTY ROADS ADJACENT TO THE CITY'S LAKE RAY ROBERTS WATER TREATMENT PLANT; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the Mayor, or in her absence the Mayor Pro Tem, is hereby authorized to execute, on behalf of the City, an Interlocal Cooperation Agreement between the City of Denton, Texas and the County of Denton, Texas pertaining to the maintenance responsibilities of the City regarding certain county roads adjacent to the City's Lake Ray Roberts Water Treatment Plant, which is currently under construction, substantially in accordance with the Interlocal Cooperation Agreement which is attached hereto and incorporated by reference herein. SECTION 2. That the expenditure of funds by the City as set forth in the Interlocal Cooperation Agreement is hereby authorized. SECTION 3. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the /t~¢ day oft J~5~ ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APP~V~; -~TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: /~/~ ~ S:\Our Documcnts\Ordinances\02~Intcrlocal Agrmt-Co of Denton-Roads-Water Ttmt Plant.doc APPROVAL OF INTERLOCAL COOPERATION AGREEMENT PROIECT The COUNTY OF DENTON, acting by and through its Cognty Commissioners Court, having been advised of a project requiring road improvements and maintenance of portions of Burger Road and Lake Ray Roberts Dam Road under an Interlocal Cooperation Agreement, herein gives its specific written approval of the project prior to beginning the project in satisfaction of the requirements of V.T.C.A., Government Code, Chapter 791, the Interlocal Cooperation Act, Section 791.014. The description of the type of project to be undertaken and its location are as follows: The City of Denton will assume.the maintenance of Burger Road from its intersection with FM 2153, east for a distance of 2,930 feet and the maintenance of Lake Ray Roberts Dam Road from it's intersection with Burger Road, north for a distance of 2,258 feet. The local government which requested the project and with which the County of Denton has contracted is the City of Denton. By vote on this date, the Commissioners Court has approved the project identified above and authorized execution of this document by the presiding officer on behalf of Denton County, Texas. BY: "Presidi~ County Commissioners Court Project Approval Page 1 STATE OF TEXAS COUNTY OF DENTON INTERLOCAL COOPERATION AGREEMENT THIS AGREEMENT is made and entered into by and between the CITY OF DENTON, TEXAS, a Texas Mmficipai Corporation (hereinafter the "CITY") and DENTON COUNTY, TEXAS (hereinafter the "COUNTY"), each organized and existing under the laws of the State of Texas, acting by and through and under the authority of their respective governing bodies and officials; and WHEREAS, the CITY and COUNTY are local governmental entities organized under the laws of the State of Texas, and both of whom have the authority to perform the services set forth in this Agreement individually, and who mutually desire to enter into an interlocal cooperation agreement, as provided for in Chapter 791 of the Texas Government Code (Vernon 1994) in order to maximize the benefits to the citizens of the CITY and the COUNTY to be derived from each taxpayer dollar expended; and WHEREAS, the COUNTY has previously constructed roads outside the corporate limits of the CITY that are operational and are currently maintained by the COUNTY, which roads are more particularly described as follows, to wit: Beginning at the Northern section of Burger Road and extending East from the Northern intersection of Burger Road and FM 2153 for a distance of approximately 2,930 feet to the intersection of Burger Road and Lake Ray Roberts Dam Road; and extending North from the intersection of Burger Road and Lake Ray Roberts Dmn Road for a distance of approximately 2,258 feet North to the driveway entrance of the USACOE Maintenance Facility parking lot in North Denton County (the "Affected Roads"); and as represented in Exhibit "I," attached hereto. WHEREAS, the CITY has commenced construction of the Lake Ray Roberts Water Treatment Plant, and the construction phase will probably continue for approximately two (2) years from the beginning of the Project. During that time, the CITY expects that construction will require trucks and other vehicles to travel on the Affected Roads in excess of the posted weight limit of the COUNTY of twenty-five (25) tons. Following completion of construction activities, the CITY expects that there will be additional vehicles in excess of the posted weight limit that will need to travel on the Affected Roads in order to provide routine operation and maintenance, and to provide for future expansion; and WHEREAS, the CITY and COUNTY desire to establish maintenance responsibilities on the Affected Roads, as permitted by Section 791.003(c) of the Texas Government Code, to more effectively and efficiently maintain the Affected Roads in a proper state of repair in light of the expected use of the roads by the CITY; to avoid unnecessary or duplicitous expense; to achieve convenience for the CITY; to equitably provide for the maintenance responsibility to be paid by the governmental unit that is predominately utilizing the Affected Roads; and to take mutual advantage of any economies of scale, thereby resulting in cost savings to their respective taxpayers; and WHEREAS, the COUNTY is willing to delegate the responsibility regarding the future maintenance of the Affected Roads to the CITY as provided by this Interlocal Cooperation Agreement. The CITY and COUNTY, by this Interlocal Cooperation Agreement (the "Agreement") express' their mutual understanding that the relationship to be created by implementation of this Agreement is that of two local governmental entities providing for the maintenance of the Affected Roads; and WHEREAS, there is a valid governmental purpose served by this Agreement by the CITY and COUNTY to provide for the maintenance of the "Affected Roads" by the CITY; and WHEREAS, the CITY and COUNTY agree that any payments made in connection with governmental functions provided for by this Agreement shall be made from current revenues available to the paying party in accordance with the provisions with the provisions of Section 791.011 (d)(3) of the Texas Government Code, and that the payments made pursuant to the Agreement are adequate and fairly compensate the performing party for the services or functions performed, in accordance with the provisions of Section 791.011 (e) of the Texas Government Code; and WHEREAS, the Interlocal Cooperation Act, now contained in Chapter 791 of the Texas Government Code (Vernon 1994), authorizes the CITY and the COUNTY to enter into this Agreement for the purpose of achieving the governmental functions and providing the road maintenance services represented by this collective, cooperative undertaking; and WHEREAS, the COUNTY, by its duly-authorized Commissioner's Court, has given specific written advance approval for entering into this Agreement with the CITY, as required by Section 791.014(a) of the Texas Government Code; and NOW THEREFORE, the CITY and COUNTY, for and in consideration of the premises and the mutual covenants set forth in this Inteflocal Cooperation Agreement, and pursuant to the authority granted by the governing bodies of each of the parties hereto, in accordance with Section 791.011(d)(1) of the Texas Govermnent Code, do hereby AGREE as follows: ARTICLE I INCORPORATION OF PREAMBLES All matters and recitations stated in the preamble to this Agreement are true and correct and are hereby incorporated by reference into the provisions of this Agreement for all purposes. 2 ARTICLE II PURPOSE OF AGREEMENT. The purpose of this Agreement is, as designated in the preamble, to evidence the agreement of the CITY and the COUNTY to provide for the maintenance of the Affected Roads for the term of the Agreement. ARTICLE III TERM OF AGREEMENT ~C~-This Agreement shall be effective as of the -~"~day of ~ and shall continue in force and effect for a term of twenty (20) years. The parties may each elect to terminate this Agreement, as permitted under the provisions of Article IV hereunder. ARTICLE IV TERMiNATION OF AGREEMENT This Agreement terminates upon the first to occur of the following events: A. By mutual written agreement of the CITY and COUNTY; or B. Twenty (20) years from the effective date of this Agreement; or C. By either party, if a party defaults or breaches any of the terms or conditions of this Agreement and such default or breach is not cured within sixty (60) days after written notice by the non-defaulting party to the defaulting party; or D. This Agreement may be terminated at the discretion of the Commissioner's Court of the COUNTY, upon sixty (60) days written notice to the CITY, if appropriate circumstances arise in the future to warrant such action. ARTICLE V CONSIDERATION TO BE PAID OR AFFORDED BY THE CITY TO COUNTY The consideration to be paid or afforded by the CITY to the COUNTY for the term of this Agreement, is as follows: A. The CITY shall assume responsibility for the corrective and routine maintenance of the Affected Roads; and B. The CITY agrees to provide staffing, equipment, and material for any maintenance, repair, and/or modifications to the Affected Roads as required to maintain them at a level consistent with prior COUNTY maintenance standards; and C. The CITY will accept ail financial responsibilities that are due to the maintenance, repair, and/or modifications of the Affected Roads; and D. The CITY agrees to be overseen by COUNTY staff as to the Affected Roads, if need be; and E. The CITY agrees to provide information to the COUNTY regarding maintenance, repair, and/or modification activities, as reasonably requested by the COUNTY during the term of the Agreement. ARTICLE VI CONSIDERATION BY THE COUNTY The consideration to be paid or afforded by COUNTY to the CITY for the term of this Agreement, is as follows: A. The COUNTY agrees to suspend the load limit of twenty-five (25) tons that is currently posted and effective for the Affected Roads; and B. The COUNTY shall cooperate with the CITY, and shall facilitate the CITY's construction, operation, maintenance, and future expansion of the Lake Ray Roberts Water Treatment Plant and associated facilities at the site; and C. The COUNTY shall do that which is necessary to assure a smooth transition of the maintenance of the Affected Roads to the CITY. ARTICLE VII FORCE MAJEURE Events of Force Majeure shall mean any contingency or cause beyond the reasonable control of a party including, without limitation, acts of God or the public enemy, war, riot, civil commotion, insurrection, government or de facto government action (unless caused by acts or omissions of the party), fires, explosions, rain or other weather delays, floods, strikes, slowdowns or work stoppages. ARTICLE VIII HOLD HARMLESS To the extent allowed by the Constitution and statutes of the State of Texas, and without waiving any immunity or limitation as to liability, COUNTY agrees to and shall indemnify and hold harmless the CITY, its officials, officers, agents, employees, or attorneys from and against any and ail claims, losses, damages, causes of action, suits, and liabilities of every kind, including all expenses of litigation, court costs, and attorney's fees, for injury or death of any person, or for damages to any property; real, personal, or intellectual, arising out of or in connection with the use, but not the installation or maintenance, of the fiber optic network the subject of this Agreement, where the injury or death or damage is caused by the negligence of COUNTY, its officials, officers, agents, employees, or attorneys, except that the COUNTY assumes no liability for the sole negligent acts of CITY, its officials, officers, agents, employees, or attorneys. To the extent allowed by the Constitution and statutes of the State of Texas, and without waiving any immunity or limitation to liability, the CITY agrees to and shall indemnify and hold harmless COUNTY, its officials, officers, agents, employees, or attorneys from and against any and all claims, losses, damages, causes of action, suits, and liabilities of every kind, including all expenses of litigation, court costs, and attorney's fees, for injury or death of any person, or for damages to any property; real, personal, or intellectual, arising out of or in connection with the installation or maintenance, but not the use, of the fiber optic network the subject of the Agreement, where the injury or death or damage is caused by the negligence of CITY, its officials, officers, agents, employees, or attorneys. ARTICLE IX GOOD FAITH NEGOTIATION AND DISPUTE RESOLUTION Whenever a dispute or disagreement arises under the terms of this Agreement, the parties agree to enter into good faith negotiations to resolve such disputes. If the matter continues to remain unresolved after good faith negotiations by the parties, then the matter shall be referred to outside mediation. This provision is mandatory, and shall be a condition precedent to the filing of any litigation by either or both parties. ARTICLE X ASSIGNABILITY/CONSENT Except as otherwise provided herein, or except as may be hereafter determined by the parties, no party to this Agreement may sell, assign, or transfer its interest in this Agreement, or any of its right, duties, or obligations hereunder, without the prior written consent of the other party. Whenever the consent or the approval of a party is required herein, such party shall not unreasonably withhold, delay, or deny such consent or approval. ARTICLE XI NOTICE Any notice given by one party to the other in connection with this Agreement shall be in writing and shall be by personal delivery; sent by registered mail or certified mail; or by U.S. Mail, return receipt requested, postage prepaid; to: CITY: Office of the City Manager City of Denton, Texas 215 East McKinney Denton, Texas 76201 COUNTY: Office of the County Judge Denton County, Texas 110 West Hickory Denton, Texas 76201 Notice shall be deemed to have been received on the date of receipt as shown on the return receipt or other written evidence of receipt. ARTICLE XII MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith. No evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed. The parties further agree that the provisions of this Article wilt not be waived unless as herein set forth. ARTICLE XlII SAVINGS/SEVERABILITY In the event that any one or more of the provisions hereof contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not effect the other provisions, and the Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in this Agreement. ARTICLE XIV GOVERNING LAW AND VENUE This Agreement shall be construed under and governed by, and in accordance with the laws of the State of Texas, and all obligations of the parties hereto, created by this Agreement are performable in Denton County, Texas. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. ARTICLE XV ENTIRE AGREEMENT This Agreement and the exhibits attached thereto, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter of this Agreement. No amendment, modification, cancellation or alteration of the terms of this Agreement shall be binding on any party hereto unless the same is in writing, dated subsequent to the date hereof, and is duly authorized and executed by the parties hereto. ARTICLE XVI WAIVER OF TERMS AND CONDITIONS The failure of either party to enforce or insist upon compliance with any of the terms or conditions of this Agreement shall not constitute a general waiver or relinquishment of any such terms or conditions, but the same shall be and remain at all times in full force and effect. ARTICLE XVII AUTHORITY OF PARTIES This Agreement is made by and entered into by the duly-authorized officials of each respective governmental entity. ARTICLE XVIII CAPTIONS The captions contained in this Agreement are for informational purposes only and shall not in any way affect the substantive terms or conditions of this Agreement. ARTICLE XlX COUNTERPARTS This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and constitute one and the same instrument. IN WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be executed in two (2) original counterparts, by its duly-authorized and empowered Mayor; and Denton County, Texas has caused this Agreement to be executed by its duly- authorized and empowered County Judge on this the ~E~day of ~oJ~4 , 200*~, to be effective as ofthe GU dayof ~.,b/.~' ,~g0t~. CITY OF DENTON, TEXAS EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY DENTON COUNTY, TEXAS By: ~ COUNT~' JU~GI[ -~// ATTEST: COUNTY CLERK, DENTON COUNTY, TEXAS APPROVED AS TO LEGAL FORM: BRUCE ISAACKS, DISTRICT ATTORNEY By: nt Distric-t Attb-rney/Civil S:\Our Docun~ents\Contracts\01\lnterlocal Cooperation Agrmt-City-County Roads Water Treatment Plant.doc LAKE RAY ROBERTS DAM 225~ FM2153