R-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
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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.
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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
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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
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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.
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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
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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
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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
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