R2009-068 - 2009-05-11RESOLUTION NO. R2009-68
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 WITH BRAZORIA COUNTY
MUNICIPAL DISTRICT NO. 4.
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 Brazoria County Municipal Utility District No. 4, 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 Brazoria County Municipal
District No. 4.
PASSED, APPROVED and ADOPTED this the 11`h day of May, A.D., 2009.
TOM REID
MAYOR
ATTEST:
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APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
Exhibit "A"
Resolution 2009-68
CITY OF PEARLAND - BRAZORIA COUNTY
MUNICIPAL UTILITY DISTRICT No. 4
INTERLOCAL AGREEMENT
CONCERNING THE McHARD ROAD AND DRAINAGE
RECONSTRUCTION PROJECT
(COUNTRY PLACE BLVD TO CR 94)
This agreement ("Agreement") is made between the CITY OF PEARLAND,
acting through its City Council ("City") and BRAZORIA COUNTY MUNICIPAL
DISTRICT No. 4, acting through its Board of Directors ("MUD"), and is supported by
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by both Parties. (City and MUD may be referred to collectively as
"Parties," or, individually, as a "Party.")
NOW THEREFORE, CITY AND MUD agree as follows:
I.
1.0 This agreement is made pursuant to Texas Government Code §791.011 in
that it contemplates the furnishing of governmental functions and services between the
Parties as defined by Texas Government Code §791.003 (3) (C), (I), (J), and (N).
1.1 Each Party agrees that any payments for the performance of governmental
functions or services shall be from current revenues available to the paying Party and
further that such payments shall fairly compensate the performing Party for the service or
materials it supplies provided for the other Party's benefit.
1.2 City warrants that its City Council approved this Agreement by Resolution
il2es4-L4, dated May 11, 2009, authorizing its City Manager to execute it on City's
behalf.
1.3 MUD warrants that its Board of Directors approved this Agreement by
unanimous vote at a properly called meeting on May 11, 2009, and authorized its
President to execute it on MUD's behalf.
1.4 Each Party acknowledges and agrees that it shall furnish the services
promised, whether by contractor or not, in compliance with City guidelines, and shall
timely provide such monies as promised herein to fund its share of the Project (identified
below), subject to the following:
(1) funding and services for the Project are subject to the availability
of current fiscal year revenue or bond revenue and the
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appropriation of such revenue by the Party's governing body prior
to the Project to be commenced (provided, however, that the MUD
shall not be obligated to issue bonds to fund its obligations
hereunder); and
(2) upon appropriation of revenue for the Project and upon
commencement of a Party's funding or services for the Project or
execution of a construction contract for the Project, the Parties
shall be obligated only to the construction funding and services
described in this Agreement.
1.5 This Agreement covers only removal and reconstruction of McHard Rd.
from East Country Place Boulevard to C.R.94, with reconstruction improvements limited
to existing pavement removal, embankment to elevate the roadway, subgrade, concrete
paving, storm sewer inlets, storm sewer pipe to tie-into the existing storm sewer trunk
line, and striping ("Project"). The Project shall be classified for purposes of this
Agreement as the "Road Portion" (defined as the removal and reconstruction of McHard
Rd. from East Country Place Boulevard to C.R.94, with reconstruction improvements
limited to existing pavement removal, embankment to elevate the roadway, subgrade,
concrete paving and striping) and the "Drainage Portion" (defined as the storm sewer
inlets and storm sewer pipe to tie-into the existing storm sewer trunk line).
1.6 Subject to Section 2.4 below, the initial term of this Agreement shall be
for a period of eighteen (18) months, commencing on the 11th day of May, 2009, and
terminating on the 11th day of November, 2011, provided, however, that this Agreement
shall be automatically renewed in one (1) month increments until all of the obligations of
the Parties hereunder have been fully discharged or specifically waived in writing by the
beneficiary thereof.
II.
2.0 The Parties agree to provide the following services, either directly or by
contracting and the following levels of funding subject to the conditions and exceptions
described hereinabove.
2.1 City shall act as lead participant for the Project and shall manage,
coordinate and negotiate the agreements required with any other entities, prepare the
schematic and P S &E ,obtain all necessary permits, acquire
appropriate right-of--way and relocate utilities if necessary. City shall bid and administer
the Project.
2.2 Project Funding:
(1) City shall fund at least 50% of the Road Portion of the Project
(which percentage is estimated at $912,599.64), and shall develop and
execute an agreement with Brazoria County ("County") on terms
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substantially similar to this Agreement, under which County and City will
fund the total costs of the Road Portion of the Project (see Attachment A,
"Project Budget and Cost Allocation"). The agreement shall include a
provision that the County shall remit its Project funds to the City within 45
days after the City provides County with written notice of the City's award
of the construction contract for the Project
(2) MUD shall remit the entire cost of the Drainage Portion of the
Project (estimated to be $80,573.33, as set forth in Attachment A) to the
City within 45 days following the City's award of the construction bid for
the Drainage Portion of the Project. In no event shall MUD's funding
requirements under this Agreement exceed $100,000.00 in total.
2.3 Within thirty (30) days following the issuance of a Certificate of Final
Completion for construction of the Project, City will perform, or cause to be performed, a
final accounting of the actual costs ("Actual Costs") of the engineering, construction, and
management of the Project. If the final accounting concludes that the Actual Costs of the
Drainage Portion exceed the bid price paid by MUD under this Agreement, MUD,
subject to the maximum funding amount in Section 2.2(2) above, agrees to pay the City
the difference between the bid price and the Actual Costs within 45 days after receiving
written notice from City. If the Actual Costs of the Drainage Portion are less than the bid
price paid by MUD to City, then City will refund the difference between the bid and
actual cost to MUD within thirty (30) days after the final accounting is complete.
2.4 If County does not execute the agreement contemplated in Section 2.2(1)
above on or before June 30, 2009, MUD may terminate this Agreement and its
obligations hereunder by written notice to City. If County does not timely and fully make
payment(s) as set forth in Section 2.2(1), MUD may terminate this Agreement and its
obligations hereunder by written notice to City.
III.
3.1 City and MUD recognize and agree that nothing herein shall be construed
to create any rights in third parties.
3.2 The Parties expressly agree that no Party shall have the right to seek
indemnification or contribution from any other Party hereto for any losses, costs,
expenses, or damages directly or indirectly arising, in whole or part from this Agreement,
unless otherwise available under law or in equity.
3.3 Whenever possible, each provision of this Agreement shall be interpreted
in such a manner as to be effective and valid under applicable law, but if any section,
subsection, paragraph, sentence, clause, phrase, work or portion of this Agreement is, for
any reason, held invalid unconstitutional or otherwise unenforceable by any court of
competent jurisdiction, such portion shall be deemed a separate, distinct, and independent
provision and such holding shall not affect the validity of the remaining portions thereof.
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>.3 1~ihenever possible, each provisiotl of this Agreement shall beinterpreted in such
zt manner as to be effective fttld valid under applicable law, brit if arty section,
srrhsection, paragraph, sentence, clause, phrase, work or portion of this
agreement is, for any re-anon, held invalid unconstitutional or otherwise
one-nforceable try any court of competent .jurisdiction, such portion shall be
dee:rned a separate, dist.int-t, and independent pro~~iscrn and sash holding shall r~7ot
affc,ct the validity o~ the remaining portions thereof'.
~•=t The Rights and oliligations of this agreement shall not bc. assigrtcd ~vitlaout prior
written consent of City, MUD and County.
s.~ This agreement and all obligations created hereunder shall 1?e performable in
f3razt}ria County, Texas.
~.t"7 This agreement shall ht construed and enforced in accordance with and governed
by the laws of the State of Texas.
~.7 This agreer~~ent shall he binding upon acrd im~re to the benefit of the Parties and
their atir7rinistratorti, agents, employees, succcssc~rs and assigns permitted by this
~agreerne-nt. No third party beneficiaries are intended by this Agreement.
intending tc7 be legally bound, the Parties hereto have executed this agrc;cmerrt
eff'ectivc as of the effective date of the agreen7enC, / f a.~~ ~ ~ , 2O(19.
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