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HomeMy WebLinkAboutR-2303-7-04RESOLUTION NO. 2303-4-04(R) ' A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ALLEN, COLLIN COUNTY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF AN INTERLOCAL AGREEMENT BY AND BETWEEN THE CITY OF PLANO AND THE CITY OF ALLEN, TEXAS, CONCERNING SANITARY SEWERS; AUTHORIZING ITS EXECUTION BY THE CITY MANAGER; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Allen, Texas, has been presented a proposed Interlocal Agreement by and between the City of Plano, Texas, and the City of Allen, Texas, concerning sanitary sewers, a copy of which is attached hereto and incorporated herein by reference; and, WHEREAS, upon full review and consideration of the Agreement, and all matters related thereto, the City Council is of the opinion and finds that the terms and conditions thereof should be approved, and that the City Manager should be authorized to execute the Agreement on behalf of the City of Allen, Texas. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ALLEN, COLLIN COUNTY, TEXAS, THAT: SECTION 1. The Agreement attached hereto having been reviewed by the City Council of the City of Allen, Texas, and found to be acceptable and in the best interest of the City and its citizens, be, and the same is hereby, in all things approved, and the City Manager or designee is hereby authorized to execute the Agreement an ' behalf of the City of Allen, Texas. SECTION 2. This Resolution and the Interlocal Agreement are hereby approved by the affirmative vote of the majority of the members of the City Council of the City of Allen, Texas, at a regularly scheduled meeting of the City Council. SECTION 3. This Resolution shall become effective immediately from and after its passage. DULY PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF ALLEN, COLLIN COUNTY, TEXAS, ON THIS THE 13'r' DAY OF JULY, 2004. APPROVED: —. Stephen Terrell, MAYOR ATTEST: Shelley` B. GeolMC, C rg , R� 11'1 SECRETARY INTERLOCAL AGREEMENT BETWEEN CITY OF PLANO AND CITY OF ALLEN CONCERNING SANITARY SEWERS THIS AGREEMENT is made between the CITY OF PLANO, TEXAS, a home - rule municipal corporation (hereinafter referred to as "Plano") and the CITY OF ALLEN, TEXAS, a home -rule municipal corporation (hereinafter referred to as "Allen"), acting by and through their City Managers or their duly authorized representatives, as follows: WITNESSETH: WHEREAS, the Interlocal Cooperation Act (Texas Government Code Chapter 791) authorizes any local government to contract with one or more local governments to perform governmental functions and services under the terms of the Act; and WHEREAS, operation and maintenance of a sanitary sewer system is a recognized governmental function; and WHEREAS, a portion of Allen's sanitary sewer lines serving approximately 220 acres are connected and flow into Piano's sanitary sewer system, as depicted in the diagram attached hereto and incorporated herein as Exhibit "A"; and WHEREAS, a portion of Piano's sanitary sewer lines serving approximately 112 acres are connected and flow into Allen's sanitary sewer system, as depicted in the diagram attached hereto and incorporated herein as Exhibit "B'; and WHEREAS, Plano and Allen agree that due to the topography at these locations, it is not practical for these sanitary sewer lines to flow into the City that generates the flow•, and WHEREAS, Plano and Allen agree that it is not practical to meter each City's flow into the other City's system but have agreed that the flow into each system was approximately equal prior to October 1, 1999; and WHEREAS, Plano and Allen agree that since October 1, 1999, sanitary sewer flow from Allen into Plano has been greater than sanitary sewer flow from Plano into Allen; and WHERAS, Allen agrees that it shall reimburse Plano for the additional costs Plano incurred in treating Allen's sanitary sewer flow from Fiscal Year 1999-2000 through Fiscal Year 2002-2003; and INTERLOCAL AGREEMENT PAGE LSILEGAL:NIA-SanS.i OA 7/1/04 WHEREAS, Plano and Allen have devised a formula to calculate the non - metered sanitary sewer flow from one City into the other City's sanitary sewer system and will use this formula to calculate the differential flow for past years, as well as future years. NOW, THEREFORE, this Agreement is made and entered into by Plano and Alien for the mutual consideration stated herein. ARTICLE ONE Duties and Payment 1. It is agreed that the following formula will be used to calculate the sanitary sewer flow generated from each City and deposited into the other City's sanitary sewer system on an annual basis, from October 1 through September 31 of each Fiscal Year: (a) For residential properties, the number of residential lots with water service will be multiplied times 10,000 gallons per month times twelve (12) months. (b) For non-residential properties, the actual sewer flow will be based on water consumption. (c) The residential flow will be added to the non-residential flow to determine the total flow. (d) The difference between each City's total flow will be multiplied by 1.15 to account for infiltration to arrive at differential flow. 2. It is agreed that the differential flow will be multiplied times the rate charged by North Texas Municipal Water District ("NTMWD") for wastewater system treatment and transportation costs to determine payment due. The rate(s) charged by NTMWD is subject to change each year as determined by NTMWD. 3. By November 1 of each fiscal year, Plano and Allen will calculate the differential flow for the prior fiscal year using the formula set out above and will agree upon the payment due. 4. Payment will be made to the appropriate City by December 31 of each fiscal year. 5. Based upon the above described procedure for calculating differential sanitary sewer flow, the parties agree that Allen owes Plano $301,156.00 for the differential sewer flow from Fiscal Year 1999-2000 through Fiscal Year 2002-2003. INTERLOCAL AGREEMENT PAGE LSLLEGAL'NIA-SenSwn-COA 711104 Allen will pay Plano one-third of this amount ($101,156.00) within thirty (30) days following execution of this Agreement. A second payment of one-half of the remaining balance ($100,000) will be added to the payment Allen will make to Plano for differential flow in Fiscal Year 2003-2004 due on or before December 31, 2004, if such payment is due, otherwise such second installment will be paid on or before December 31, 2004, and a final payment of $100,000 will be made on or before December 31, 2005, when Allen makes the differential payment for fiscal year 2004-2005, if such payment is due, otherwise the final installment will be paid on or before December 31, 2005. 6. Plano and Allen agree that the infiltration factor referenced above may be adjusted as necessary and upon mutual agreement to account for aging of the infrastructure. 7. Plano and Allen agree that as the method of calculating sewer charges for customers changes, the flow calculations will automatically change accordingly. If maximum water usage is used to establish residential sewer charges, the calculations will be based on the lower amount. If both Plano and Allen use actual or winter averaging for residential flow, then that will be the basis for the flow calculations. This agreement on the calculation may be modified as each City revises its residential sewer charges. 6. Plano and Allen agree that the formula for calculating differential flow may be modified upon mutual agreement of the parties as necessary to reflect changes in the way Plano and Allen calculate sanitary sewer flows and usage by their customers. 9. Allen agrees to maintain its sanitary sewer lines located within the City of Plano and as depicted in Exhibit "B" in a state of good repair and condition. 10. Plano agrees to maintain its sanitary sewer lines located within the City of Allen and as depicted in Exhibit "A" in a state of good repair and condition. 11. Allen and Plano agree to jointly and equally maintain a 10" sanitary sewer line crossing of Rowlett Creek as depicted in Exhibit "B" in a state of good repair and condition. ARTICLE TWO Funding Plano and Allen agree that the party paying for the performance of governmental functions or services shall make those payments only from current revenues legally available to the paying party at the time the payment becomes due. ARTICLE THREE Term This Agreement shall be effective upon approval by the City Council and subsequent execution by the City Manager of each party. The effective date will be the INTERLOCAL AGREEMENT PAGE LSILEGALNIA-S..S.m-CGA 711/04 later of the dates this Agreement is executed by the parties. This Agreement shall continue in effect annually for so long as Plano and Allen maintain their sanitary sewer connections or until this Agreement is terminated as provided herein. This Agreement shall automatically renew annually during this period. ARTICLE FOUR Hold Harmless Each party does hereby agree to waive all claims against, release, and hold the other party and its respective officials, officers, agents, and employees harmless in both their public and private capacities, from any and all liability, claims, suits, demands, losses, damages, attorney's fees, including all expenses of litigation or settlement, or cause of action which may arise by reason of injury to or death of any person or for loss of, damage to, or loss of use of any property arising out of or in connection with this Agreement. In the event of joint or concurrent negligence of the parties, responsibility, if any, shall be apportioned comparatively in accordance with the laws of the State of Texas without, however, waiving any governmental immunity available to either party individually under Texas law. Plano shall be responsible for its sole negligence. Allen shall be responsible for its sole negligence. The provisions of this paragraph are solely for the benefit of the parties hereto and are not intended to create or grant any rights, contractual or otherwise, to any other person or entity. ARTICLE FIVE Immunity It is expressly understood and agreed that, in the execution of this agreement, neither 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, expressed or implied, other than those set forth herein, and this Agreement shall not create any rights in parties not signatories hereto. ARTICLE SIX Notices All notices required under the provisions of this Agreement must be in writing, hand -delivered or sent by registered or certified mail to the addresses below: Plano: City of Plano, Texas Attention: Alan Upchurch, City Engineer P. O. Box 860358 Plano, TX 75086-0358 INTERLOCAL AGREEMENT PAGE LSILEGALA4IA-SanS..COA 711/04 party. With copy to: City of Plano, Texas Attention: City Attorney P. O. Box 860358 Plano, TX 75086-0358 Allen: City of Allen, Texas Attention: John Baumgartner, City Engineer 305 Century Parkway Allen, TX 75013 With copy to: City of Allen, Texas Attention: Peter G. Smith Nichols, Jackson, Dillard, Hager & Smith 1800 Lincoln Plaza Dallas, TX 75201 The name and address for notification may be changed by notice to the other ARTICLE SEVEN Severability 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 having 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. ARTICLE EIGHT Successors and Assigns This Agreement shall be binding upon the parties hereto, their successors, heirs, personal representatives and assigns. Neither party will assign or transfer an interest in this Agreement without the written consent of the other party. ARTICLE NINE Venue The laws of the State of Texas shall govern the interpretation, validity, performance and enforcement of this Agreement. The parties agree that this Agreement is performable in Collin County, Texas, and that exclusive venue shall lie in Collin County, Texas. INTERLOCAL AGREEMENT PAGE LSLLEGAL:0I1A Sw COA 711/04 ARTICLE TEN Interpretation This is a negotiated document and should any part of this Agreement be in dispute, the parties agree that the Agreement shall not be construed more favorably for either party. ARTICLE ELEVEN Remedies, Non -Waiver No right or remedy granted herein or reserved to the parties is exclusive of any right or remedy granted by law or equity, but each shall be cumulative of every right or remedy given hereunder. No covenant or condition of this Agreement may be waived without the express written consent of the parties. It is further agreed that one or more instances of forbearance by either parry in the exercise of its respective rights under this Agreement shall in no way constitute a waiver thereof. ARTICLE TWELVE Entire Agreement This Agreement embodies the entire agreement between the parties and may only be modified in writing executed by both parties. ATTEST: By: /(,f 4AjzU a r 6 — Name: Elaine Bealke Title: Ci� Secretary Date: 2-0,1 CITY OF PLANO, TEXAS By: A .,aa Name: Thomas H. Mue lenbeck Title: City Maner Date: �'l3o�oG Executed on behalf of the City of Plano pursuant to ay Council solution No. a2t�o - 7 APPROVED TOM: By: Name: Diane Wetherbee Title: City Attorney Date: 17-30-00 INTERLOCAL AGREEMENT PAGE LSLLEGAL:041A-S.nS..COA 7/1/04 ATTEST: By: \ Name: tKilley B. orge Title: Ci Secretary Date: !Z 14 o APPROVED AS TO FORM: By: Name: Peter G. Sffiith Title: City Attorney Date: 7/1 3/11/ CITY OF ALLEN, TEXAS By:� Name: Peter'. ar a Title: City Manag r Date: 7—o Executed on behalf of the City of Allen pursuant to City Council Resolution No. a303- 7_0'a ACKNOWLEDGMENTS STATE OF TEXAS 4 COUNTY OF COLLIN § J7 instrument was acknowledged before me on the day of 2004, by THOMAS H. MUEHLENBECK, City Manager of the OF NO, TEXAS, a home -rule municipal corporation, on behalf of said icipal rporadon. of ryublic, State of Texas STATE OF TEXAS COUNTY OF COLLIN JX instrument was acknowledged before me on the 14n day of , 2004, by PETER H. VARGAS, City Manager of the CITY OF ALL , TEXAS, a home -rule municipal corporation, on behalf of said municipal corporation. Connie S Schofield ;.,�`N0 �_1ary P001i, Slate of Texas • 1f/fnmmissmExon� �12,ux.� ' C SEPTEMBER 18, 2004 Notary Public, State of xas INTERLOCAL AGREEMENT PAGE LSILEGAL:041ASanS .COA 711/04 EXHIBIT "A" Allen's Flow Into Piano's System INTERLOCAL AGREEMENT PAGE LS\LEGAL041A-SanSwrs-COA 7MO4 EXHIBIT "B" Plano's Flow Into Allen's System INTERLOCAL AGREEMENT PAGE LS%LEGAL:041A-SanS..- OA 7/1/04