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HomeMy WebLinkAboutResolution No. 2012-098 CITY OF THE COLONY, TEXAS RESOLUTION NO. 2012- C)0t ~ A RESOLUTION OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE AN INTERLOCAL COOPERATION AGREEMENT BY AND BETWEEN THE CITY OF THE COLONY AND THE CITY OF FRISCO, TEXAS, WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT "A", FOR THE MAINENTANCE OF THE BNSF MEMORIAL DRIVE UNDERPASS; PROVIDING AN EFFECTIVE DATE. WHEREAS, the parties hereto are political subdivisions of the State of Texas; and WHEREAS, Chapter 791 of the Government Code Interlocal Governmental Cooperation Act provides for contractual agreements between governmental entities; and WHEREAS, the City Council has determined that it would be in the best interest of public health, safety and welfare to enter into the Interlocal Cooperation Agreement with the City of Frisco for the maintenance of the BNSF Memorial Drive Underpass; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: Section 1. That the mayor is hereby authorized to execute an Interlocal Cooperation Agreement with the City of Frisco for the maintenance of the BNSF Memorial Drive Underpass, which is attached hereto and incorporated herein as Exhibit "A". Section 2. That this resolution shall take effect immediately from and after its passage. PASSED AND APPROVED by the City Council of the City of The Colony, Texas, this 4th day of December, 2012. Joe iMcCourry, Mayor r A RTES J 1 f Christie Wilson, TRiMC, City Secretary ae ' APPROVED AS TO FORM: Jeff Moo-e, City Attorney s INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF THE COLONY, TEXAS AND THE CITY OF FRISCO, TEXAS CONCERNING THE MAINTENANCE OF THE RNSF MEMORIAL DRIVE UNDERPASS This Interlocal Agreement (hereinafter referred to as the "Agreement") is entered into pursuant to the provisions of the Interlocal Cooperation Act, Chapter 791 of the Texas Government Code (the "Interlocal Cooperation Act"), by and between the City of The Colony, Texas, a Texas home-rule municipality (hereinafter referred to as "The Colony"), and the City of Frisco, Texas, a Texas home-rule municipality (hereinafter referred to as "Frisco'). WHEREAS, the Interlocal Cooperation Act authorizes local governments to contract with one or more local governments to perform govermlental functions and services under the terms of the Act; and WHEREAS, The Colony and Frisco mutually desire to be subject to the provisions of the Interlocal Cooperation Act, specifically section 791.011 regarding contracts to perform governmental functions and services; and WHEREAS, The Colony is a duly organized municipality in Denton County, Texas, engaged in the provision of municipal and related services for the benefit of the citizens of The Colony; and WHEREAS, Frisco is a duly organized municipality in Collin and Denton Counties, Texas, engaged in the provision of municipal and related services for the benefit of the citizens of the Frisco; and WHEREAS, on May 28, 1998, The Colony entered into a "Stewart Creek West Regional Wastewater System Contract" (the "Stewart Creek Contract") with Frisco and the North Texas Municipal Water District (hereinafter referred to as "NTMWD"); and WHEREAS, The Colony subsequently sued NTMWD and Frisco for various causes of action arising out the Stewart Creek Contract, involving the expansion of the North Texas Regional Wastewater System known as Stewart Creek West; and WHEREAS, on February 25, 2010, the parties entered into a settlement agreement concerning the Stewart Creek West Regional Wastewater System Contract (the "Settlement Agreement"); and WHEREAS, Section 7 of said Settlement Agreement provided for cooperation between The Colony and Frisco concerning the extension of Memorial Drive in The Colony, and its connection with Spring Creek Parkway in Frisco forming one continuous thoroughfare; and 616888.1 WHEREAS, Section 7 of the Settlement Agreement provided that The Colony would obtain right-of-way, easements and required permitting necessary for an underpass at the BNSF railroad eight-of-way located on the Property; and WHEREAS, BNSF Railway Company, a Delaware company (hereinafter referred to as `BNSF"), The Colony, and Frisco, executed an Underpass Agreement, hereinafter defined., concerning the identified obligations of BNSF, The Colony, and Frisco concerning the construction of a new crossing at separated grades, located at railroad milepost 690.51 and designated by D.O.T. No. 675230R (hereinafter referred to as the "Memorial Drive Underpass"); and WHEREAS, The Colony and Frisco have investigated and determined that is in the best interest of their respective cities to enter into this Agreement to address the maintenance obligations of The Colony concerning the Memorial Drive Underpass. NOW, THEREFORE, for and in consideration of the agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, The Colony and Frisco agree as follows: Section 1. Incorporation of Premises. The foregoing recitals are hereby incorporated into the body of this Agreement and shall be considered part of the mutual covenants, consideration and promises that bind the parties. Section 2. Term. The term of this Agreement shall continue in force and effect until the Memorial Drive Underpass is removed or re-constructed, and with the prior written approval of both parties, but under no circumstances shall the term of this Agreement terminate prior to the agreement for the Memorial Drive Underpass between the parties and the BNSF ("Underpass Agreement"). Section 3. Definitions. The following words shall have the following meanings when used in this Agreement. (a) Agreement. The word "Agreement" means this Interlocal Cooperation Agreement, together with all exhibits and schedules attached to this Agreement from time to time, if any. (b) Effective Date. The words "Effective Date" mean the date of the latter to execute this Agreement by and between The Colony and Frisco. (c) Frisco. The word "Frisco" means the City of Frisco, Texas, a Texas home-rule municipality, whose address for the purposes of this Agreement is 6101 Frisco Square Blvd., Frisco, Texas 75034. Page 2 of 15 Interlocal Agreement - BNSF.Memorial Drive Underpass City of The Colony, Texas - City of Frisco, Texas 1112712012 5:43:23 PM 616888v1 (d) Memorial Drive Underpass. The words "Memorial Drive Underpass" mean the new crossing at separated grades, located at railroad milepost 690.51 and designated by D.O.T. No. 675230R, as generally depicted in Exhibit A of this Agreement which is attached hereto and incorporated herein for all purposes. (e) rerm. The word "Term" means the term of this Agreement as specified in Section 2 of this Agreement. (f) The Colony. The words "'The Colony" mean the City of 'The Colony, Texas, a Texas home-rule municipality, whose address for the purposes of this Agreement is 6800 Main Street, The Colony, Texas 75056, Section 4. ®blaaations of The Colony. The Colony covenants and agrees with Frisco that, while this Agreement is in effect, and so long as Frisco is not in default under this Agreement, it shall comply with the following terms and conditions: (a) The Colony shall solely maintain in good, safe repair and condition, at its sole expense and risk., the Memorial Drive Underpass, in accordance with any and all applicable standards and specifications including, but not limited to: (i) Exhibit A; (ii) BNSF standards and specifications related to the construction and maintenance of an underpass; and/or (iii) the standards and specifications set forth in the Underpass Agreement. In addition to the foregoing, The Colony hereby assumes any and all responsibilities Frisco may have for the proper and adequate maintenance, repair, replacement and/or construction of the Memorial Drive Underpass, including, but not limited to, the bridge deck, piers, walls, and associated appurtenances as well as any and all obligations of Frisco contained in the Underpass Agreement. If, at any time, Frisco determines that the Memorial Drive Underpass is in need of immediate maintenance, repair, replacement and/or construction, Frisco shall advise The Colony of the same, and The Colony shall commence and complete the maintenance, repair, replacement and/or construction immediately; otherwise, maintenance, repair, replacement and/or construction shall commence within fourteen (14) days of said notice. Should The Colony fail to commence and/or complete the maintenance, repair, replacement and/or construction as requested., Frisco may, but has no obligation to, commence and/or° complete the maintenance, repair, replacement and/or° construction, and receive reimbursement from The Colony for all work performed. All operation, maintenance, repairs, replacement, and/or construction related to the Memorial Drive Underpass shall be accomplished in a manner so as to cause no interference with railroad use. (b) All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by The Colony and thereafter diligently prosecuted to completion. (c) Consistent with Section 791.011(d)(3) of the Texas Government Code, any expenses Page 3 of 15 Interlocal Agreement - BNSF Memorial Drive Underpass City of The Colony, Texas - City of Frisco, Texas 1112712012 5:43:23 PM 616888v1 incurred by The Colony in the performance of its obligations under this Agreement shall be made from current revenues available to The Colony. It is understood and agreed that the funding for the Term set forth above has been approved and will be appropriated by The Colony. Section 5. Obligations of Frisco. Frisco covenants and agrees with The Colony that, while this Agreement is in effect, and so long as The Colony is not in default tinder this Agreement, it shall comply with the following terms and conditions: (a) Frisco shall allow access to and cooperate on traffic control for maintenance operations of the Memorial Drive [.Underpass. Section 6, Default. In the event of default of the obligations of this Agreement, the non-defaulting party shall give written notice to the other party of any default, and the defaulting party shall have thirty (30) days to cure said default. Should said default remain uncured as of the last day of the applicable cure period, and the non-defaulting party is not otherwise in default, the non-defaulting party shall have the right to immediately terminate this Agreement, and pursue any all rights and/or remedies available to it in law and in equity. The written notice shall be mailed to the below-noted addresses via U.S. certified mail, postage prepaid and return receipt requested, and the date of mailing shall be deemed the date of the postmark. Section 7. Miscellaneous Provisions. The following miscellaneous provisions are a part of this Agreement: (a) Amendments. This Agreement constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. (b) Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Collin County, Texas. Venue for any action arising under this Agreement shall lie in the state district courts of Collin County, Texas. (c) Assignment. This Agreement may not be assigned without the express written consent of the other party. (d) Attorney's Fees. In the event any person initiates or defends any legal action or proceeding to enforce or interpret any of the terms of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover its reasonable costs and attorney's fees (including its reasonable costs and attorney's fees on any appeal). (e) Binding Obligation. This Agreement shall become a binding obligation on the Page 4 of 15 Interlocal Agreement - BNSF Memorial Drive Underpass City of The Colony, Texas - City of Frisco, Texas 1112712012 5:43:23 PM 616888v1 signatories upon execution by all signatories hereto. The Colony warrants and represents that the individual executing this Agreement on behalf of The Colony has full authority to execute this Agreement and bind The Colony to the same. Frisco warrants and represents that the individual executing this Agreement on Frisco's behalf has full authority to execute this Agreement and bind it to the same. (f) Caption Headings. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of the Agreement. (g) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same document. (h) Force Majeure. It is expressly understood and agreed by the parties to this Agreement that if the performance of any obligations hereunder is delayed by reason of war, civil commotion, acts of God, inclement weather, fire or other casualty, or court injunction, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such obligation or requirement shall be extended for a period of time equal to the period such party was delayed. (i) Immunity and Defenses. It is expressly understood and agreed that, in the execution of this Agreement, no party waives, nor shall be deemed hereby to have waived any immunity or defense that would otherwise be available to it against claims arising in the exercise of governmental powers and functions. By entering into this Agreement, the parties do not create any obligations, express or implied, other than those set forth herein, and this Agreement shall not create any rights in parties not signatories hereto. (j) Indemnification Clause. TO THE EXTENT ALLOWED BY LAW, EACH PARTY AGREES TO RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS THE OTHER (AND ITS OFFICERS, AGENTS, AND EMPLOYEES) FROM AND AGAINST ALL CLAIMS OR CAUSES OF ACTION FOR INJURIES (INCLUDING DEATH), PROPERTY DAMAGES (INCLUDING LOSS OF USE), AND ANY OTHER LOSSES, DEMAND, SUITS, JUDGMENTS AND COSTS, INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES, IN ANY WAY ARISING OUT OF, RELATED TO OR RESULTING FROM ITS PERFORMANCE UNDER THIS AGREEMENT, OR CAUSED BY ITS NEGLIGENT ACTS OR OMISSIONS (OR THOSE OF ITS RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, OR ANY OTHER THIRD PARTIES FOR WHOM IT IS LEGALLY RESPONSIBLE) IN CONNECTION WITH PERFORMING THIS AGREEMENT. (k) Notices. Any notice or other communication required or permitted by this Agreement (hereinafter referred to as the "Notice") is effective when in writing and (i) personally delivered either by facsimile (with electronic information and a mailed copy to follow) or by hand or (ii) three (3) days after notice is deposited with the U.S. Postal Service, Page 5of15 Interlocal Agreement - BNSF Memorial Drive Underpass City of The Colony, Texas - City of Frisco, Texas 1112712012 5:43:23 PM 6168880 postage prepaid, certified with return receipt requested, and addressed as follows: if to The Colony: The City of The Colony, Texas 6800 Main Street The Colony, Texas 75056 Attn: City Manager Telephone: (972) Facsimile: (972) _ if to Frisco: The City of Frisco, Texas 6101 Frisco Square Blvd. Frisco, Texas 75034 Attn: City Manager Telephone: (972) Facsimile: (972) (1) Sever•ability. The provisions of this Agreement are severable. If any paragraph, section, subdivision, sentence, clause, or phrase of this Agreement is for any reason held by a court of competent jurisdiction to be contrary to law or contrary to any rule or regulation have the force and effect of the law, the remaining portions of the Agreement shall be enforced as if the invalid provision had never been included. (m) Time is of the Essence. Time is of the essence in the performance of this Agreement. (n) Sovereign Immunity. Neither Party has waived its sovereign immunity by entering into and performing its obligations under this Agreement. I Page 6 of 15 Interlocal Agreement - BNSF Memorial Drive Underpass City of The Colony, Texas - City of Frisco, Texas 1112712012 5:43:23 PM 616888v1 APPROVED by The City Council of The City of The Colony, Texas, in its meeting held on the day of 1)-, c^-- - , 2012, and executed by its authorized representative, CITY OF THE COLONY, TEXAS A Texas home-rule municipality By: Toe McCcurry, Mayor ATTES`1;~: . Christie Wilson, City Secretary APPROVED AS TO FORM: Jeff Moofe, Oty Attorney APPROVED by The City Council of The City of Frisco, Texas, in its meeting held on the day of , 2012, and executed by its authorized representative. CITY OF FRISCO, TEXAS A Texas home-rule municipality /y ' I Oj By. . _ George Purefoy, ity Manager w ATTEST: H w 'IN v o 00 Jena, a e, Cit ~ Secret ry APk D AS TO FORM: i e 4 t 1/ d f Courtney A. Kuyl 'nda11, City Attorney Page 7 of 15 Interlocal Agreement - BNSF Memorial Drive Underpass City of The Colony, Texas - City of Frisco, Texas 1112712012 5:43:23 PM 616888v1 ExhibitA Depiction and Description of Memorial Drive Underpass (Seven (7) Pages) Page 8of15 Interlocal Agreement - BNSF Memorial Drive Underpass City of The Colony, Texas - City of Frisco, Texas 1112712012 5:43:23 PM 616888v1 PERMANENT EASEMENT MAY 2, 2012 PROPERTY OF BURLINGTON NORTHERN SANTA FE WILLIAM G. GARVIN SURVEY, ABSTRACT NO. 453 DENTON COUNTY, TEXAS FIELD NOTE DESCRIPTION BEING an 18,175 square foot (0.417 acre) tract of land situated in the William G. Garvin Survey, Abstract Number 453, Denton County, Texas, and being part of Burlington Northern Santa Fe Railroad (BNSFRR) right-of-way in Denton County, Texas and being more particularly described by metes and bounds as follows: BEGINNING in the common west line of said BNSFRR, a 100-foot right-of-way, and the east line of Legend Bend Phase II, an addition to the City of The Colony, as evidenced by plat recorded in Cabinet R, Page 4 of the Plat Records of Denton County, Texas, from which a 1/2-inch iron rod with cap stamped "TX REG NO 100189-00" found for the southeast of said Legend Bend Phase 11 tract and in the existing north line of Memorial Drive, a 120-foot right-of-way, bears South 07°01'02" East a distance of 22.91 feel, THENCE North 82°57'29" East departing said common line a distance of 100.00 feet to the common east line of said BNSFRR and the west line of a certain tract of land conveyed to Stonebriar Country Club Joint Venture, as evidenced by deed recorded in Volume 4439, Page 37 of the Deed Records of Denton County, Texas, also being the west line of Lot 2, Block A of Stonebriar / Westin Addition, an addition to the City of Frisco, as evidenced by plat recorded in Cabinet T, Page 376 of said Plat Records; THENCE South 07°01'02" East along said common line at a distance of 43.57 feet pass a 1/2-inch iron rod with cap stamped "TX REG NO 100189-00" found for the northwest corner of a certain tract of land conveyed to Texas Department of Public Safety (TDPS) as evidenced by deed recorded in Document Number 93-0093814 of said Deed Records, continuing at a distance of 66.10 feet pass a 112-inch iron rod with cap stamped "TX REG NO 100189-00" found for the common southwest corner of said TDPS tract and the northwest corner of a certain tract of land called Tract 1 conveyed to Texas Industries, Inc. as evidenced by deed recorded in Document Number 94-0011703 of said Deed Records, in all a total distance of 181.75 feet; THENCE South 82°57'29" West departing said east line of said BNSFRR a distance of 100.00 feet to the common west line of said BNSFRR and the east line of The Cascades at the Legends Phase 2, an addition to the City of The Colony, as evidenced by plat recorded in Cabinet Y, Page 421 of said Plat Records; THENCE North 07°01'02" West along said common line at a distance of 38,84 feet pass a 1/2-inch iron rod with cap stamped "Pacheco Koch" found for the northeast corner of said The Cascades at the Legends Phase 2 and in the existing south line of Memorial Drive, in all a total distance of 181.75 feet to the POINT OF BEGINNING; CONTAINING within the metes recited 18,175 square feet or 0.417 acre of land, more or less. Page 1 of 3 Page 9of15 Interlocal Agreement - BNSF Memorial Drive Underpass City of The Colony, Texas - City of Frisco, Texas 1112712012 5:43:23 PM 616888v1 PERMANENT EASEMENT MAY 2, 2012 PROPERTY OF BURLINGTON NORTHERN SANTA FE WILLIAM G. GARVIN SURVEY, ABSTRACT NO. 453 DENTON COUNTY, TEXAS FIELD NOTE DESCRIPTION Bearings are based on NAD 83, Texas State Plane Coordinate System, North Central Zone (4202). Distances have been scaled to surface values using a surface adjustment factor of 1.000150630. A plat of survey accompanies these field notes. 1, Ayub R. Sandhu, a Registered Professional Land Surveyor, hereby certify that the legal description hereon is based upon an actual survey made on the ground under my supervision. si" 411- Ayub R. Sandhu, R.P.L.S. i:at..., Texas Registration No. 2910 ?91U ,F Page 2of3 Page 10 of 15 Interlocal Agreement - BNSF Memorial Drive Unde'Tass City of The Colony, Texas - City of Frisco, Texas 1112712012 5:43:23 PM 616888v1 N _ 50' v C 3, LOT 2. BLOCK A O - Z~ Z STONEBRIAR I V&STIN ADDITION - t GAB. T, PG. 376 0' 50' 700' t, O ~ P.R.D.C.T. r I- O Z ~7 R. S Y Z STONEBRIAR COUNTRY CLUB O JOINT VENTURE A581MA07 . aP'1 ER OTT 1) ® ."t1 ~ VOL 4439, PG. 37 19 p = D.R.D.C.T. 1 m R.O.W. DEDICATION (PER PLAT) LEGEND BEND PHASE It N 82°57'29" E 9 Z CAB. T, PQ 376 CAB. P0.4 100.00, P.R.D.C.T. - P.R.D.C.T. P.0.13°*~ TEXAS DEPARTMENT = e / OF PUBLIC SAFETY 22.91' 93-0093814 - ~C) % O o 13,13MC,T. _ FOUND -4 TEX C3 11 r N N 1/Y L R. FOUND - f TEX REG NO m 900999-00' _ MEMORIAL DRIVE 120•FOOT RIGHT-OP-WAY PERMANENT EASEMENT - 12'LR.POUND / 18,175 Square Feet •pACHECO KOC L4 N' (0.417 Acre) TEXAS INDUSTRIES, INC. TRACT 1 S 82°57'29" W 94-D611703 100.00' D.R.D.C.T. THE CASCADES F AT THE LEGENDS PHASE 2 CAB. Y, PO. 421 WLUAN Sri. GA RM YEV P.R.D.C.T. ~J AW7RACT WJFAER 653 100' m C' < C' C' C C N_C HEARING BASIS: BEARINGS SHOWN HEREON ARE RASED CN NAD&3, _ TEXAS STATE PLANE COORDINATE SYSTEM, NORTH CENTRAL ZON°_ (4202). DISTANCES SHOWN HAVE BEEN WJDIFIED TO SURFACE BY APPLYING A SCALE FACTOR OF 1.070150930 TO THE STATE PLANE - COORDINATES. PERMANENT EASEMENT FIELD NOTES ACCOMPANY THIS PLAT. PROPERTY OF BURLINGTON NORTHERN SANTA FE PART OF THE WILLIAM G. GARVIN SURVEY, OF ABSTRACT NO. 453 Al STq- DENTON COUNTY, TEXAS LEGEND AYUB R. SANDHU 2910 e'er 0 CRAWN BY: DATE.- MONUMENT FOUNp J 9'y fS5 ~`o'•'~O J. WALDRIP MAY 2, 2012 - O y~ CHECKED BY: SCALE: ROB . POINT OF BEGINNING R. 6NALDRIP 1 INCH =100 FEET I, R. - IRON ROD r ~JM / JOB NUMBER: 302-12-020 SHEET: 3 OF 3 D.RA.C.T. - DEEDRECORDSDENTON COUNTY, TEXAS PA-D.C.T. - PLAT RECORDS DENTON COUNTY. TEXAS •AR Engineers, Inc. - 12501 H (D N.rai EsPressx4 Su'4a 12v'0 b Dal.. .p, 752:43 ®/J ph-(214) 73531 rC F.. (214)73Y~ 10 Page 11 of 15 Interlocal Agreement -BNSFMemorial Drive Underpass City of The Colony, Texas - City of Frisco, Texas 1112712012 5:43:23 PM 616888v1 ~n 0 N to ct a J Iy r 9 14" _ r 1 : t ( ~ ~I ! 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