HomeMy WebLinkAboutResolution No. 09-010
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 09-010
A RESOLUTION OF THE CITY OF THE COLONY,
TEXAS, AUTHORIZING THE MAYOR TO EXECUTE AN
INTERLOCAL COOPERA TION AGREEMENT BY AND
BETWEEN THE CITY OF THE COLONY AND
LEWISVILLE INDEPENDENT SCHOOL DISTRICT,
WHICH IS ATTACHED HERETO AND INCORPORATED
HEREIN AS EXHIBIT "A", FOR THE USE OF A
LEWISVILLE INDEPENDENT SCHOOL DISTRICT
OWNED UTLITY EASEMENT ADJACENT TO THE
NORTH COLONY COMPLEX; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the parties hereto are political subdivisions ofthe 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 and Lewisville Independent School District desire to enter into an
agreement and the City Council has determined that it would be in the city's best interest to
enter into the Interlocal Cooperation Agreement with Lewisville Independent School District
for the use of a Lewisville Independent School District owned utility easement adjacent to the
North Colony Complex between North Colony and Nash.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
THE COLONY, TEXAS, THAT:
Section 1. The Mayor is hereby authorized to execute an Interlocal Cooperation
Agreement with Lewisville Independent School District for the use of a Lewisville Independent
School District owned utility easement adjacent to the North Colony Complex between North
Colony and Nash, which is attached hereto and incorporated herein as Exhibit "A".
Section 2.
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 2nd day
of Februarv. 2009.
A TT~ST:
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Chnstie Wilson, TRMC, City Secretary
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COUNTY OF DENTON
~
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THE STATE OF TEXAS
INTERLOCAL COOPERATION AGREEMENT
BETWEEN LEWISVILLE INDEPENDENT SCHOOL DISTRICT AND CITY OF
THE COLONY. TEXAS
THIS INTERLOCAL COOPERATION AGREEMENT is made and entered into
on this 2nd day of February, 2009, by and between the LEWISVILLE INDEPENDENT
SCHOOL DISTRICT ("LISD"), acting by and through its Board of Trustees,
Superintendent or designee, and the CITY OF THE COLONY ("CITY"), acting by and
through its Mayor or designee.
WITNESSETH:
WHEREAS, the Interlocal Cooperation Act, Chapter 791 of the Texas Government
Code, provides authorization for agreements between and among
governmental entities; and
WHEREAS, CITY desires to use and maintain certain LISD real property ("LISD
Property") for purposes of public recreation; and
WHEREAS, LISD and CITY find that the performance of this Agreement is in the
common public interest of both parties, and that the services to be
provided by CITY, i.e., the maintenance and improvement of LISD
Property, fairly compensates LISD for the use ofLISD Property; and
WHEREAS, LISD and CITY, in expending funds in the performance of
governmental functions or in performing such governmental functions
under this Agreement, shall make payments therefore only from current
revenues legally available to each party; and
WHEREAS, LISD and CITY agree that LISD Property shall be used by CITY for the
purpose of providing public recreational and athletic opportunities for
its citizens as set out herein.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual
agreements contained herein, the parties hereto agree as follows:
INTERLOCAL COOP ERA nON AGREEMENT
Between Lewisville Independent School District
and City Of The Colony - Page I
33785
I.
AGREEMENT
A. In consideration of the mutual covenants of this Agreement, and other good and
valuable consideration, LISD shall permit CITY to use LISD Property. LISD
Property is identified in Exhibit "A," a copy of which is attached hereto and
incorporated herein for all purposes. The portions of LISD Property that will be
available for CITY use under this Agreement are the following: the athletic fields,
parking lot, sidewalks; future athletic fields, vehicle parking facility and a future
hiking/biking trail located on LISD Property. The purposes for which CITY may
use LISD Property are City-sanctioned league practices and games and other
recreational activities including hiking and biking.
B. CITY shall have the right of access to and use of LISD Property at all times,
except that the parties expressly agree that LISD shall, at all times, have priority of
use on LISD Property, when such use is necessary for educational purposes.
Furthermore, CITY's right of access to and use of LISD Property shall be subject
to any all easements now existing or subsequently granted by LISD regarding
LISD Property. CITY right of access and use of LISD Property shall be for
recreational purposes, and for no other purpose, without the express written
consent of the Board of Trustees of the Lewisville Independent School District.
C. LISD Property shall be maintained by CITY. CITY shall bear any and all costs
related to the maintenance of LISD Property in accordance with this Agreement,
including but not limited to, the cost of landscaping, labor, supplies and all other
costs related to the grounds and equipment on the Property. CITY shall maintain
LISD Property in full compliance with LISD's acceptable maintenance standard.
CITY shall maintain LISD Property free of litter, trash, overgrown vegetation and
other natural or manmade conditions which would diminish the quality of LISD
Property. CITY shall be responsible for trash pick-up and removal from LISD
Property.
D. CITY shall be responsible for all utility costs associated with its maintenance and
use of LISD Property.
E. CITY acknowledges that LISD Property is useful to CITY in its current condition,
"as is" without any modification or maintenance required on the part ofLISD.
However, CITY may, at its sole cost and expense, construct or purchase
recreational equipment for installation on LISD Property for public use, in
accordance with generally accepted standards. CITY shall pay all costs associated
with such equipments or improvements, including labor, contractual repair, and
INTERLOCAL COOPERATION AGREEMENT
Between Lewisville Independent School District
and City Of The Colony - Page 2
33785
parts and replacement as needed or required. CITY must obtain prior written
approval from LISD before installing any equipment on or making any
improvements to LISD Property.
F. Security of LISD Property shall be the responsibility of CITY. During the term of
this Agreement, and any extensions thereof, CITY agrees to guard LISD Property
from abuse or loss through vandalism, wanton destruction, or theft. CITY shall
perform and exercise all rights, duties and functions and services in compliance
with all valid and applicable laws, statutes, codes, regulations, policies and
ordinances of the United States, the State of Texas, the County of Denton, CITY,
LISD, or other lawful authority with jurisdiction over the premises.
G. CITY shall be responsible for any and all claims, damages, and/or causes of action
arising from, caused by, or in any way related to its use of LISD Property, except
that CITY shall not be liable for normal wear and tear. All determinations
regarding wear and tear and damage to the property shall be made by LISD, in its
sole discretion, and such determinations shall be final.
H. Any pesticides or herbicides introduced to LISD Property will be posted and must
be approved by LISD prior to application.
1. To the extent allowed by law, each party shall indemnify and hold harmless the
other, from and against any and all claims, loss, cost, damages, expense or liability
of any kind, including attorney's fees, arising out of or in any way connected with
this Agreement or the use of LISD Property by CITY. Nothing herein shall be
construed to affect, alter, or modify immunity under Texas Civil Practice and
Remedies Code ~101.051.
1. A grievance system will be in place to handle any issues that arise.
II.
TERM
The term of this Agreement shall be for a period of five (5) years, the initial term
commencing on the last date all parties have executed this Agreement, but shall
automatically renew for an additional five (5) year term unless terminated by either party
in accordance with the terms herein. Thereafter, the contract will automatically renew for
two (2) additional five (5) year terms unless notice is given by either party to terminate
the agreement one hundred eighty (180) days prior to the expiration of each five (5) year
term.
INTERLOCAL COOPERATION AGREEMENT
Between Lewisville Independent School District
and City Of The Colony - Page 3
33785
III
TERMINATION
A. Either party may terminate this Agreement, for any reason, or no reason, upon one
hundred eighty (180) days prior written notice of the date of termination to the
other party. This Agreement may be terminated in whole or in part and will apply
only to the property so identified in the notice of termination. In addition to the
foregoing one hundred eighty day termination, LISD may terminate this
Agreement for cause upon thirty (30) days prior written notice, including but not
limited to, if CITY does not properly maintain LISD Property in accordance with
Section r.c. of this Agreement, upon thirty (30) days prior written notice. All
determinations regarding proper maintenance of LISD Property shall be made by
LISD, in its sole discretion, and such determinations shall be final.
B. If either party terminates this Agreement pursuant to the terms herein, LISD shall
have no obligation to reimburse CITY for the cost of any improvements made to
LISD Property by CITY during the term of this Agreement.
C. Upon termination, CITY may remove all personal property or removable
structures owned by CITY, provided that CITY thereafter returns LISD Property
to its original condition. CITY shall remove any improvements or alterations
upon termination of this Agreement if requested in writing by LISD. Upon
termination, CITY at its sole expense, shall bear the cost of any alterations or
improvements owned by CITY to LISD property. Any addition or improvement
to LISD Property if not removed shall, upon termination of this Agreement and a
reasonable time to remove said improvements or alterations, belong to and become
the property ofLISD without cost to LISD. Nothing shall be removed which may
affect the structural integrity of any building or structure.
IV.
GENERAL REQUIREMENTS APPLICABLE TO LISD AND CITY
The following subparagraphs shall apply to CITY's use ofLISD Property.
A. (1) IMMUNITY: Nothing in this Agreement, or in any exhibit or attachment
hereto, shall be construed to affect, alter, or modify the immunity of either
party under the Texas Civil Practice and Remedies Code ~ 101.001 et seq.
It is expressly understood and agreed that in the execution of this
Agreement, neither CITY nor LISD waives, nor shall be deemed to waive,
any immunity or defense that would otherwise be available to each against
claims arising in the exercise of governmental powers and functions.
INTERLOCAL COOPERATION AGREEMENT
Between Lewisville Independent School District
and City Of The Colony - Page 4
33785
(2) INSURANCE: Each Party shall maintain, during the term of this
Agreement (with a carrier acceptable to the Owning Party), commercial
General Liability Insurance for the protection of the Owning Party
(directors, officers, employees, and volunteers) insuring Owning Party for
damages because of bodily injury, or death, or damage to property,
including the loss of use thereof, and occurring on or in anyway related to
activities on the Facility or any condition of the Facility with limits not less
than One Million and NollOO Dollars ($1,000,000) combined single limit
per occurrence. Such insurance shall provide that the Owning Party shall
be given a thirty (30) day prior written notice of cancellation. Using Party
shall furnish, in compliance with the above, a certificate of insurance to the
Owning Party within sixty (60) days of this signed Agreement.
B. THIRD PARTIES: This Agreement does not create any third-party beneficiaries.
Nothing in this Agreement, or in any exhibit or attachment hereto, shall be
construed to create, expand, or form a basis for liability to any third party under
any theory of law against either CITY or LISD unless such a basis exists
independent of this Agreement under State or federal law.
C. NOTICE: Each notice or other communication which may be or is required to be
given under this Agreement shall be in writing and shall be deemed to have been
properly given when delivered personally during the normal business hours of the
party to whom such communication is directed, or upon receipt when sent by
United States registered or certified mail, return receipt requested, postage
prepaid, to the appropriate one of the following addresses as may be designated by
the appropriate party; however, each party has a right to designate a different
address by giving the other party fifteen (15) days prior written notice of such
designation:
If to LISD:
Mr. Rick Coulter, Executive Director of Purchasing
Lewisville Independent School District
1800 Timbercreek Road
Flower Mound, Texas 75028
If to CITY:
Dale Cheatham, City Manager
City of The Colony
6800 Main Street
The Colony, Texas 75056
INTERLOCAL COOPERATION AGREEMENT
Between Lewisville Independent School District
and City Of The Colony - Page 5
33785
D. MANAGEMENT AUTHORITY: During the term of this Agreement, and any
extensions thereof, CITY agrees to provide adequate police and fire protection and
other necessary emergency services for LISD Property at all times, and shall
especially guard the property from abuse through vandalism or wanton
destruction. Each party shall have the right to remove and/or control occupancy of
LISD Property as to third parties or the general public. CITY shall perform and
exercise all rights, duties and functions and services in compliance with all
applicable Federal, State and local laws and regulations. CITY in joint
cooperation with LISD may establish necessary rules and regulations as may be
required to ensure the safe and orderly operation of recreational programs and the
subject facilities, provided that any such rules and regulations do not conflict with
CITY or LISD policy or State and federal law.
E. CLAIMS AGAINST PARTIES: Subject to the provisions of Paragraph 1. 1. of
this Agreement, each party shall be responsible for defending and/or disposing of
all causes arising against the respective party as a result of its use or occupation of
LISD Property. It is expressly understood and agreed that in the execution of this
Agreement, neither CITY nor LISD waives, nor shall be deemed to waive, any
immunity or defense that would otherwise be available to each against claims
arising in the exercise of governmental powers and functions.
F. ENTIRE AGREEMENT: This Agreement contains the entire agreement of the
parties hereto, and no other oral or written commitments shall have any force or
effect if not contained herein. No amendment, modification, or alteration of this
Agreement is binding unless in writing and duly executed by the parties
subsequent to this Agreement.
G. SEVERABILITY: If anyone or more of the provisions contained herein shall for
any reason be held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other provision of the
Agreement, and this Agreement shall be construed as if such invalidity, illegality,
or unenforceable provision had never been contained herein.
H. AUTHORITY: The undersigned officers and/or agents are authorized to execute
this Agreement on behalf of the parties hereto, and each party hereto certifies to
the other that any necessary resolutions extending such authority have been duly
passed and are now in full force and effect.
1. DEFECT: Each party shall promptly report to the other party any defects or
dangerous conditions it discovers on or concerning LISD Property, and shall cease
any such use until such defect or condition is repaired or cured.
INTERLOCAL COOPERATION AGREEMENT
Between Lewisville Independent School District and City Of The Colony - Page 6
33785
V.
REMEDIES
No right or remedy granted or reserved to the parties is exclusive of any other right or
remedy herein by law or equity provided or permitted; but each shall be cumulative of
every other right or remedy given hereunder. No covenant or condition of this
Agreement may be waived without written consent of the parties. Forbearance or
indulgence by either party shall not constitute a waiver of any covenant or condition to be
performed pursuant to this Agreement.
VI.
APPLICABLE LAW
This Agreement is to be construed under Texas law, and all obligations of the parties
created in this Agreement are performable in Denton County, Texas. Venue for any
disputes arising out of this Agreement shall be in Denton County, Texas.
VII.
SUCCESSORS AND ASSIGNS
This Agreement is binding on and inures to the benefit of the successors, executors,
administrators and assigns of the parties to this Agreement and affects the use of land and
shall run with the land. Neither CITY nor LISD shall assign, sublet, subcontract, or
transfer this Agreement without the written consent of the other party. No assignment,
delegation of duties, or subcontract under this Agreement shall be effective without the
prior written consent of the other party.
VIII
RECITALS AND ATTACHMENTS
The recitals and attachments to this Agreement are incorporated herein for all purposes as
if set out herein verbatim.
IX.
DEFAULT
Failure of Using Party to follow the terms or conditions or fulfill any obligation of
this Agreement and/or Exhibit may constitute a default of this Agreement. The Owning
Party will verbally notify those in charge of said Facility and provide written notice to the
Using Party of those violations. If the violation is not remedied within thirty (30) days
after written notice from Owning Party, the Using Party may be deemed to have lost its
use of said Facility. If the Using Party proceeds with reasonable diligence and in good
INTERLOCAL COOPERA nON AGREEMENT
Between Lewisville Independent School District
and City Of The Colony - Page 7
33785
faith to effect the remedy as soon as practicable, then the thirty (30) day limit may be
extended by the Owning Party, in its sole discretion.
X.
EXECUTION
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.
EXECUTED between the parties on the date first written above.
LEWISVILLE I.S.D.:
By: ()fhArI ~tfn;~
Tom Ferguson
Secretary, Board of Trustees
BY:~~
Carol
President, Board of Trustees
WITNESS:
CITY OF THE COLONY, TEXAS:
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,1 1 ' ' .f' ".' "
By:l ,:1/ vi,! 1-'-1 L
Christie Wilson
Secretary
By:
John
Mayo
WITNESS:
INTERLOCAL COOPERA nON AGREEMENT
Between Lewisville Independent School District
and City Of The Colony - Page 8
33785
THE STATE OF TEXAS ~
~
COUNTY OF DENTON ~
LISD ACKNOWLEDGEMENT
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
Texas, on this day personally appeared CAROL KYER, known to me to be the person
whose name is subscribed to the foregoing instrument, and acknowledged to me that she
executed same for and as the act and deed of LEWISVILLE INDEPENDENT
SCHOOL DISTRICT, a political subdivision of the State of Texas, with its
administration building located in Denton County, Texas, and as the President of the
Board of Trustees thereof, and for the purposes and consideration therein expressed and
in the capacity therein stated.
,- GIVEN UNDER MY HAND AND SEAL OF OFFICE this, the q-t"- day of
.- Q..b (' lA.L1...r"~ ' 2009.
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INTERLOCAL COOPERATION AGREEMENT
Between Lewisville Independent School District
and City Of The Colony - Page 9
33785
THE STATE OF TEXAS ~
~
COUNTY OF DENTON ~
CITY ACKNOWLEDGEMENT
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
Texas, on this day personally appeared John Dillard, known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that he executed
same for and as the act and deed of CITY OF THE COLONY, TEXAS, a municipal
corporation of Denton County, Texas, and as the Mayor thereof and for the purposes and
consideration therein expressed and in the capacity therein stated.
/1-,", j ,GIVEN UNDER MY HAND AND SEAL OF OFFICE this, the:4-y' 'll'~,day of
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Notary Public In and For The Slate!! of Texas
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J ,.O~"I..,/~~~'\ ANGElA KELLY
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INTERLOCAL COOPERATION AGREEMENT
Between Lewisville Independent School District
and City Of The Colony - Page lO
33785
EXHIBIT "A"
LISD PROPERTY
[to be attached]
INTERLOCAL COOPERATION AGREEMENT
Between Lewisville Independent School District
and City Of The Colony - Page 11
33785