R2008-121 2008-10-13 - W42051RESOLUTION NO. R2008-121
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO AN INTERLOCAL AGREEMENT ASSOCIATED WITH THE
CITY OF HOUSTON INTERCONNECT PROJECT.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain Interlocal Agreement by and between the City of Pearland
and the City of Houston, a copy of which is attached hereto as Exhibit "A"and made a part
hereof for all purposes, is hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest an interlocal agreement with the City of Houston.
PASSED, APPROVED and ADOPTED this the 13t" day f October, A.D., 2008.
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TOM REID
MAYOR
ATTEST:
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APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
Exhibit "A"
Resolution No. R2008-121
INTERLOCAL AGREEMENT ~ 7 ~ O A
COST SHARING ( `f
WATER LINE CONSTRUCTION ON FUQUA ROAD o8- 09 S:2-
THIS INTERLOCAL AGREEMENT FOR COST SHARING is made by and between the
CITY OF HOUSTON, TEXAS ("Houston"), ahome-rule municipality and the CITY OF
PEARLAND, TEXAS ("Pearland"), a mun icipality organized under the laws of Texas.
The initial addresses of the parties are:
Houston Pearland
Director of Public Works & Engineering City of Pearland
or Designee City Manager
City of Houston 3519 Liberty Drive
P.O. Box 1562 Pearland, Texas 77581
Houston, Texas 77251
PREAMBLE,
WITNESSETH:
WHEREAS, the Gulf Coast Water Authority is a participant in Houston's Southeast Water Plant
pursuant to Contracts No. 52797; and
WHEREAS, Pearland will be purchasing water from the Gulf Coast Water Authority though the
proposed Fuqua Rd. transmission line ("Project"); and
WHEREAS, Houston and Pearland have agreed to share the costs of the Project as provided
herein;
NOW, THEREFORE, for and in consideration of the covenants and agreements herein
contained, the parties agree as follows:
I. DEFINITIONS
Unless the context requires otherwise, the following terms as used in this Agreement shall have
meanings as follows:
"MGD" means million gallons per day.
"Point of Connection" is shown as Exhibit "A".
"Project" means the design and construction of certain water transmission facilities including
easements on Fuqua Road shown on Exhibit "A".
"Southeast Plant Agreement" means the Cost Sharing Agreement, Southeast Water Purification
Plant (Restated and Amended) as further amended by the Amendment to the Cost Sharing Agreement,
Southeast Water Purification Plant (Restated and Amended) (Contract No. 52797).
"Utility Official" shall mean the Director of the Department of Public Works and Engineering of
the City of Houston, Texas, or any other person who may hereafter exercise the functions of said Utility
Official under the applicable ordinances of Houston.
II. CONSTRUCTION BY HOUSTON OF CERTAIN FACILiTiF,S
(a) Pearland and Houston have proposed the construction of the Project on Fuqua Road as
shown on Exhibit "A".
(b) Houston has caused the plans and specifications for the Project to be developed.
Houston proposes to divide the Project into two phases and will bid these phases in two construction
contracts. Pearland's share shall be 16.4% of the Project costs plus the entire cost of the interconnection
facilities including 100% of the cost of any easements required for the metering station and 100% of
expenses associated with the acquisition of any additional Houston right-of--way or easements required by
Houston for that segment of Pearland's 30°' water transmission line that is to be constructed within the
Monroe Paving Extension limits. Pearland shall pay 100% of any other easement obtained by Houston on
Pearland's behalf. If any parcels require condemnation proceedings, Pearland shall assume the
responsibility for negotiations and acquisition of said parcels from Houston. Payment for easements and
related expenses shall be made within 30 days of receipt of invoice from Houston or by direct payment by
Pearland. Prior to acquiring the easements referenced herein, Houston shall submit any negotiated
purchase price for the easement to Pearland for review and approval, but in no event shall said approval
be unreasonably withheld. The percentage is based on 15 MGD of the capacity out of the Project whose
capacity at five feet per second flow is 91.4 MGD, Houston's share of Project costs shall be the remaining
83.6%.
(c) Houston and Pearland agree that each party will bear the below indicated shares of the
costs of each element of the Project. The costs to be borne include the actual and reasonable costs of
surveys, engineering, testing, construction contract payments, construction management and inspection,
advertisements, and legal services reasonably necessary for the Project, which services are provided by
independent contractors for Houston (the total cost for the Project is initially estimated at 1 15% of the
estimated construction payments). The current estimates of cost are indicated in Exhibit "B".
(d) After bids have been opened, the parties shall calculate Project costs, and Houston shall
deliver a statement of costs to Pearland. The statement of Project costs shall include a complete
itemization of all costs described in subsection (c) (the "Statement of Costs"). Within 30 days Pearland's
approval of the Statement of Costs, whose approval shall not be unreasonably denied or withheld,
Pearland shall pay to Houston it's pro rata share (16.4%) of the estimated costs of the Project plus the full
cost of Pearland's interconnect facilities which will be constructed by Houston.
(e) When Houston has received payment from Pearland of the estimated Project costs, it
shall proceed with the award of a construction contract as required by law. Houston shall provide
Pearland with notice of all change orders prior to approval. Houston shall obtain prior written approval
from Pearland for change orders which cumulatively increase Pearland's share of the cost of the Project
by more than $25,000, which approval process shall not unduly, unreasonably or unnecessarily delay the
Project construction. Pearland shall provide approval or rejection of the change order within 15 days. If
Pearland fails to approve or reject the change order within this time, the change order shall be deemed
approved.
(f) Houston shall build the interconnect in or near the intersection of Moers and Fuqua and
shall provide approved drawings to Pearland to aid the construction of its own water line extension and
metering station. The location of the interconnect facilities shall be determined by written agreement of
the Utility Official and Pearland. Houston shall acquire the easements for Pearland's metering station.
Houston shall also construct piping from the 72-inch line to the ls` valve within the metering station.
Upon co-npletion of the Project, Houston shall prepare and deliver to Pearland "as built" drawings of the
interconnection portion showing the Project facilities as constructed. All pipe between Beamer and Fuqua
and Fuqua and Moers shall be the property of Houston and will not be a part of the "Treated Water
Transmission Facilities" as defined in the Southeast Plant Agreement. The proposed future Point of
Delivery "C'' of Gulf Coast Water Authority (currently located at Beamer and Fuqua) will be changed to
be near the intersection of Fuqua and Moers as provided above. Houston will upon payment by Pearland,
include a design provided by Pearland and build that section of Pearland's private supply line in the
portion of Monroe that is being repaved under a Houston street and bridge contract.
(g) Houston agrees to let Pearland place water lines in Houston's right of way or easement,
as long as Pearland's private water line complies with the ordinances of Houston, including but not
limited to, Chapter 40, Article IX of Houston's Code of Ordinances. Provided, however, that Pearland
shall not be required to pay any fees for such permit(s).
(h) When all costs of the Project are known within a reasonable certainty but not later than
six (6) months after substantial completion of the Project, Houston shall prepare a calculation of the
actual costs incurred by Houston, and a copy of the calculation shall be provided Pearland. A ``true-up"
payment shall be made between the parties so that the payments by Pearland match Pearland's agreed-
upon share of the actual costs. This may require either a refund by Houston accrued to the construction
account, or an additional payment by Pearland. If at the end of the six-month deadline there is an
unresolved claim or dispute that affects the final Project cost, the deadline shall be extended from day to
day until the claim or dispute is resolved.
(i) Pearland's contribution shall only be used to pay for Pearland's agreed-upon share of the
costs of the Project. Houston shall keep accurate records of all expenditures of such account and shall
provide Pearland a detailed report on all account activity at least once a year until completion of the
Project, at which time Houston shall turn over to Pearland copies of all records of the account.
III. TIME OF COMPLETION
Houston agrees to proceed with due diligence to construct the facilities described in Article II.
The Utility Official and Pearland may by written agreement approve adding a completion bonus to the
construction contract. Pearland shall be obligated to pay for any such bonus.
IV. POINT OF CONNECTION
The Point of Connection for water delivery shall be located as shown in Exhibit "A". Pearland
shall also construct, at its own cost, meter and backflow facilities as required by the Utility Oftcial.
Metering, backflow as well as operational and maintenance requirements shall be the same as required
under the Southeast Plant Agreement.
V. TERM AND TERMINATION
A. Contract Term
This Agreement is effective on the Countersignature Date and remains in effect for such period of
time until true-up is completed. Pearland shall have capacity in the Project perpetually.
B. Termination for Cause
Either party may terminate its performance under this Agreement if the other party defaults and
fails to cure the default after receiving notice of it. Default occurs if a party fails to perform one or more
of its material duties under this Agreement. if a default occurs, the injured party shall deliver a written
notice to the defaulting party describing the default and the proposed termination date. The date must be
at least 30 days after the defaulting party's receipt of the notice. The injured party, at its sole option, may
extend the proposed termination date to a later date. If the defaulting party does not cure the default
before the proposed termination date, the injured party may terminate its performance under this
Agreement on the termination date. The Director shall act on behalf of Pearland to notify Houston of a
default and to effect termination.
VI. MISCELLANEOUS
A. Force Maieure
1. Timely performance by both parties is essential to this Agreement. However, neither
party is liable for delays or other failures to perform its obligations under this Agreement
to the extent the delay or failure is cause by Force Majeure. Force Majeure means fires,
floods, and other acts of God, explosions, war, terrorist acts, riots, court orders, and the
acts of superior governmental or military authority.
2. This relief is not applicable unless the affected party does the following:
(a) uses due diligence to remove the effects of the Force Majeure as quickly as
possible; and
(b) provides the other party with prompt written notice of the cause and its
anticipated effect.
B. Severabilitv
If any part of this Agreement is for any reason found to be unenforceable, all other parts remain
enforceable unless the result materially prejudices either party.
C. Entire Agreement
This Agreement merges the prior negotiations and understandings of the parties and embodies the
entire agreement of the parties. No other agreements, assurances, conditions, covenants (express or
implied), or other terms of any kind, exist between the parties regarding this Agreement.
D. Written Amendment
Unless otherwise specitied elsewhere in this Agreement, this Agreement may be amended only
by written instrument executed on behalf of Pearland (by authority of an ordinance adopted by the City
Council) and Houston. The Utility Official is only authorized to perform the functions specifically
delegated to him or her in this Agreement.
E. A~nlicable Laws
This Agreement is subject to the laws of the State of Texas, the City Charter and Ordinances, the
laws of the federal government of the United States, and all rules and regulations of any regulatory body
or officer having jurisdiction.
Venue for any litigation relating to this Agreement is Harris County.
F. Notice
All notices required or permitted by this Agreement must be in writing and are deemed delivered
on the earlier of the date actually received or the third day following: (1) deposit in a United States Postal
Service post office or receptacle; (2) with proper postage (certified mail, return receipt requested); and (3)
addressed to the other party at the address set out in the preamble of this Agreement or at such other
address as the receiving party designates by proper notice to the sending party.
G. Non-Waiver
If either party fails to require the other to perform a term of this Agreement, that failure does not
prevent the party from later enforcing that term and all other teens. If either party waives the other's
breach of a term that waiver does not waive a later breach of this Ag-~ement.
An approval by the Utility Official, or by any other employee or agent of Pearland, of any part of
Houston's performance does not waive compliance with this Agreement or establish a standard of
performance other than that required by this Agreement and by law. The Utility Official is not authorized
to vary the teens of this Agreement.
H. Parties in Interest
This Agreement does not bestow any rights upon any third party, but binds and benefits Pearland
and Houston only.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies,
each of which shall be deemed to be an original.
CITY OF PEARLAND, TEXAS
By' ~~
Name:Bill Eisen
Title: City Manager
CITY OF HOUSTON, TEXAS
B v`~
Mayor ~l~i //„pQ
Executed for and on behalf of the
Pearland pursuant to authority granted
bye-No. R2008-121
Resolution
ATTEST/SEAL
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Executed for and on behalf of Houston
pursuant to autho rty Ur ted b~ r,
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City Secretary
APPROVED:
Director, Department of Public Works and
Engineering
APPROVED AS TO FORM:
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