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10-063 - R TOWN OF PROSPER, TEXAS RESOLUTION NO. 10-063 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, HEREBY AUTHORIZING THE TOWN MANAGER OF THE TOWN OF PROSPER, TEXAS, TO EXECUTE AN INTERLOCAL AGREEMENT BETWEEN THE TOWN OF PROSPER AND THE CITY OF CELINA CONCERNING THE RECONSTRUCTION CR 5 (FRONTIER PARKWAY) FROM THE TALON DRIVE TO THE DALLAS NORTH TOLL ROAD NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS: SECTION 1: The Town Manager of the Town of Prosper, Texas, is hereby authorized to execute, on behalf of the Town Council of the Town of Prosper, Texas, an Interlocal Agreement between the Town of Prosper concerning the reconstruction CR 5 (Frontier Parkway) from the Talon Drive to the Dallas North Toll Road, as hereto attached. SECTION 2: This Resolution shall take effect immediately upon its passage. RESOLVED THIS THE 13 n day of July, 2010. Ray Smifli,(Mayor A1TES" ....... *."""""^.w,».., "Y" atthew D. Denton TRMC k'"' ° Town Secretary ' M to lii f di IIP m 101 'k 11019 w Ir i. Mkt wN* INTERLOCAL COOPERATIVE AGREEMENT BETWEEN THE TOWN OF PROSPER AND THE CITY OF CELINA CONCERNING THE RECONSTRUCTION OF CR 5 (FRONTIER PARKWAY) WHEREAS, the Town of Prosper , Texas ("Town") and City of Celina, Texas ("City") desire to enter into an agreement concerning the Reconstruction of CR 5 (Frontier Parkway),Collin County, Texas ("Agree yen "); and WHEREAS, Town and the City mutually desire to be subject to the provisions of Texas Government Code, Chapter 791,the Interlocal Cooperation Act(the"Act"),which authorizes Texas local governments to contract with one or more other local governments to perform governmental functions and services under the terms of the Act; and WHEREAS, the Town and the City have determined that the improvements may be constructed most economically by implementing this Agreement. NOW, THEREFORE,this Agreement is made and entered into by the Town and the City upon and for the mutual consideration stated herein. WITNESSETH: ARTICLE I. The Town shall arrange for construction improvements to CR 5 (Frontier Parkway) from Talon Drive to the Dallas North Toll Road (the "PeL["). Specifically, the improvements shall include the installation of a two course five inch(5")asphalt and three inch(3") compacted gravel base ("Improvements") for the project. The Town and City shall both approve of the construction specifications prior to the project being bid for construction. Upon completion of the Project, the Town and the City shall have final review of Improvements made, before final acceptance of the Project. ARTICLE II. The Town estimates the total actual cost of the Project to be three hundred and sixty thousand dollars($360,000.00). The Town and the City agree to fund equally the cost to construct the Project in an amount not to exceed one hundred eighty thousand dollars($180,000.00).The City shall remit (50%) percent of the amount ninety thousand dollars ($90,000.00) to the Town within fourteen(14) days after issuing a notice to proceed for construction of the Project as authorized by the Town Council and the Town requests payment with the balance due upon completion and acceptance of the project by the Town and the Town request Payment. The "total cost of the Project" shall include the design, bid process, construction, inspection, and testing. ARTICLE III. If the total cost to construct the Project exceeds the amount estimated in Article II above,the Town and the City shall pay equally for the excess costs, if both Town and the City agree with said increases. ARTICLE IV. The Town shall prepare for the City an itemized statement specifying project costs that have been incurred to date at one hundred (100%)percent complete. ARTICLE V. The Town and the City 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. ARTICLE VI. 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. ARTICLE VII. 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 VIII. ENTIRE AGREEMENT. This Agreement embodies the entire agreement between the parties and may only be modified in a writing executed by both parties. ARTICLE IX. 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 X. 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, express or implied,other than those set forth herein,and this Agreement shall not create any rights in parties not signatories hereto. ARTICLE XI. TERM. This Agreement shall be effective upon execution by both parties and shall continue in effect for three(3)one-year terms. This Agreement shall automatically renew annually during this three-year period. ARTICLE XII. DEFAULT. In the event of a breach of this Agreement by either Party,the other Party may pursue any remedies available to it at law or in equity. ARTICLE XIII. NOTICES. Any notice required or permitted under this Agreement shall be given when actually delivered as certified mail addressed as follows: To Town: Town of Prosper Attention: Mike Land 121 W. Broadway Prosper, Texas 75078 To City: City of Celina Attention: Jason Gray 142 N. Ohio Celina, Texas 75009 ARTICLE XIV. CUMULATIVE REMEDIES. All rights and remedies of the Parties under this Agreement shall be cumulative, and none shall exclude any other right or remedy provided by law, or by any other provisions of the Agreement. All such rights and remedies may be exercised and enforced concurrently and whenever, and as often, as occasion for their exercise arises. ARTICLE XV. WAIVER OF BREACH. A waiver by either Party of a breach of the Agreement by the other Party does not constitute a continuing waiver or a waiver of any subsequent breach of the Agreement. ARTICLE XVI. PARTIES BOUND. The Agreement shall be binding upon,and inure to the benefit of,the Parties to the Agreement and their respective heirs,executors,administrators,legal representatives, successors, and assigns when permitted by this Agreement. ARTICLE XVII. NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall be construed to create any right in any third parry not a signatory to this Agreement, and the Parties do not intend to create any third party beneficiaries by entering into this Agreement. ARTICLE XVIII. INCORPORATION OF RECITALS. The representations, covenants and recitations set forth in the foregoing recitals of this Agreement are true and correct and are hereby incorporated into the body of this Agreement and adopted as findings of the Parties. ARTICLE XIX. CONSIDERATION. This Agreement is executed by the Parties hereto without coercion or duress and for substantial consideration, the sufficiency of which is forever confessed. ARTICLE XX. COUNTERPARTS. This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. A facsimile signature will also be deemed to constitute an original if properly executed. ARTICLE XXI. AUTHORITY TO EXECUTE. The individuals executing this Agreement on behalf of the respective Parties below represent to each other and to others that all appropriate and necessary action has been taken to authorize the individual who is executing this Agreement to do so for and on behalf of the Party for which his or her signature appears, that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and binding agreement on the Party for whom the individual is signing this Agreement and that each individual affixing his or her signature hereto is authorized to do so, and such authorization is valid and effective on the date hereof. ARTICLE XXII. FORCE MAJEURE. Neither Town and the City shall be required to perform any term, condition, or covenant in the Agreement so long as performance is delayed or prevented by force majeure, which shall mean acts of God, strikes, lockouts, material or labor restrictions by any governmental authority, civil riots, floods, and any other cause not reasonably within the control of Town or City and which by the exercise of due diligence Town or City unable,wholly or in part,to prevent or overcome. ARTICLE XXIII. MISCELLANEOUS DRAFTING PROVISIONS. This Agreement shall be deemed drafted equally by the Parties hereto. The language of all parts of this Agreement shall be construed as a whole according to its fair meaning,and any presumption or principle that the language herein is to be construed against any party shall not apply. Headings in this Agreement are for the convenience of the Parties and are not intended to be used in construing this document. r` ATTEST: `° TOWN OF PROS-P.41TEXAS r By: By: Name Q ( ' Name: Mike Land Title: � � '° ���' Title Town Manaszer Date: ��' ���� Date: Executed on behalf of the Town of Prosper Pursuant to Town Council Resolution No. / 611— a963 APPROVED AS TO FORM: By: Name �A' crnatl� R aeclrcc� r Rebecca Wewer, Town Attome Title: IT' � At:torne ATTEST: CITY OF CELINA, TEXAS 0 Name: µµwww 1 .; s .11 Name1 Gra Title: .m S� cry . Title: Citv Manager Date: 3 Date: 11 D l Executed on behalf of the City of Celina Pursuant to City Council Resolution No. 010 — APPROVED AS TO FORM: By: Date: STATE OF TEXAS COUNTY OF COLLIN This instrument was acknowledged before me on the --'-0 day of 1 ,2010 by Mike Land,Town Manager of the Town of Prosper,a Texas municipal corporati7n,on behalf of the corporation. M ._ .._....................... ' ... sm N ary Public, State of Texas STATE OF TEXAS COUNTY OF COLLIN °l"1i1s instrti ent was acknowledged bet:ore nne on tlie...,3. day of, � , 2,010b Jason Gray, City Manager of the City of Celina, a Texas municipal corporation, on behalf of the corporation. N�111111$1,1il " Y. M Notary Public, Sta of Texas @fikMr