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HomeMy WebLinkAboutRes 05-37 Entering into an Agreement with the City of KellerTOWN OF WESTLAKE RESOLUTION NO. 05-37 A RESOLUTION OF THE TOWN OF WESTLAKE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS, ENTERING INTO AN INTERLOCAL AGREEMENT WITH THE CITY OF FELLER, TEXAS REGARDING WATER AND SEWER SERVICES PROVIDED AT 1730 OTTINGER ROAD; AND AUTHORIZING THE TOWN MANAGER TO EXECUTE THIS AGREEMENT ON BEHALF OF THE TOWN OF WESTLAKE, TEXAS. WHEREAS, Westlake has no capability to provide sanitary sewer service to the property at 1730 Ottinger Road in Westlake (the "Property"); and, WHEREAS, Keller recently completed a sanitary sewer service capable of serving the Property; and, WHEREAS, Keller has no water service to the large barn at 1730 Ottinger Road ("Barn") in Keller; and, WHEREAS, Westlake recently completed a new water line loop capable of serving the Barn with domestic water service; and, WHEREAS, Westlake desires to provide domestic water service to the Barn; and, WHEREAS, Westlake and Keller desire to adopt a new contract to allow the Property to connect to Keller's sanitary sewer service and to allow Westlake to provide water service to the Barn. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN TO THE TOWN OF WESTLAKE, TEXAS: SECTION 1. THAT, all matters stated above are found to be true and correct and are incorporated herein by reference as if copied in their entirety. SECTION 1. THAT, the Board of Aldermen of the Town of Westlake, Texas, hereby. approves the Interlocal Agreement with the City of Keller relating to the provision of water and sewer service, attached as Exhibit "A"; and further authorizes the Town Manager to execute this agreement on behalf of the Town of Westlake, Texas. PASSED AND APPROVED ON THIS 10TH DAY OF OCTOBER, 2005. Scott Bradley, Mayor ATTEST: Dwinne11, ToNvn Secretary Trent Petty, Town an r C_ APPROVED AS TO RM: L. Stanton , To Attorney I'W V u I INTERLOCAL AGREEMENT FOR SANITARY SEWER SERVICE AND WATER SERVICE STATE OF TEXAS § COUNTY OF TARRANT § This Interlocal Agreement for t ovision ofnit sewer and water service this "Agreement") is entered into as of the A day of 00 , 2005, between the Town of Westlake, Texas ("Westlake") and the City of Keller, Texas ("Keller"). WHEREAS, Texas Government Code § 791.001, et seq., as amended (the "Act") provides authorization for municipalities to contract with one another for the performance of governmental functions and services under the terms of the Act; and, WHEREAS, Westlake has no capability to provide sanitary sewer service to the property at 1730 Ottinger Road in Westlake (the "Property"); and, WHEREAS, Keller recently completed a sanitary sewer service capable of serving the Property; and, WHEREAS, Keller has no water service to the large barn at 1730 Ottinger Road (`Barn") in Keller; and, WHEREAS, Westlake recently completed a new water line loop capable of serving the Barn with domestic water service; and, WHEREAS, Westlake desires to provide domestic water service to the Barn; and, WHEREAS, Westlake and Keller desire to adopt a new contract under the Act to allow the Property to connect to Keller's sanitary sewer service and to allow Westlake to provide water service to the Barn. TERMS NOW THEREFORE, for and in consideration of the mutual covenants and agreements set forth herein, the receipt and sufficiency of which are hereby acknowledged as adequate consideration, Westlake and Keller agree as follows: INTERLOCAL AGREEMENT PAGE 1 Crry of KELLER AND TOWN OF WESTLAKE ADOPTION OF RECITALS 1.1 All matters stated in the Recitals hereinabove are found to be true and correct and are incorporated herein by reference as if copied in their entirety. 2. PURPOSE. 2.1 The purpose of this Agreement is to allow Westlake to provide domestic water service to the Barn and to give Keller the exclusive right to provide sanitary sewer service to the Property. CONNECTIONS AND SERVICE 3.1 Keller agrees to allow the Property to connect to its sanitary sewer system. 3.2 Westlake agrees to grant Keller exclusive right to provide sanitary sewer service to the Property, and Westlake shall at no time in the future provide sanitary sewer service to the Property. 3.3 Westlake agrees to provide domestic water service to the Barn. 4. METER READING 4.1 Westlake shall read the domestic water meters on the Property for the purpose of providing billing information for sanitary sewer service to the Property. The meter readings from the Property shall be provided to Keller on or before the first of each month. 4.2 Westlake shall read the meters for the domestic water service to the Barn. The meter readings from the Barn shall be provided to Keller on or before the first of each month. 4.3 Westlake agrees to allow Keller to read the meters mentioned in subsections 4.1 and 4.2 should Keller chose to do so. 4.4 Westlake agrees that no irrigation water meter readings shall be taken from the Barn and that only domestic meter readings shall be taken from the Barn. Westlake shall inform Keller if an irrigation meter is installed at the Barn. 4.5 Westlake agrees to provide Keller with the monthly water consumption in gallons for each of the meters included in subsection 4.1 and 4.2 above. CHARGES FOR SANITARY SEWER AND WATER SERVICE 5.1 Using the amount of monthly sanitary sewer consumption and water consumption provided to Keller by Westlake pursuant to Section 4, Keller will provide Westlake with the amount of sanitary sewer remittance due to Keller according to Keller rates. ("Remittance"). INTERLOCAL AGREEMENT PAGE 2 CITY OF KELLER AND TOWN OF WESTLAKE 5.2 The determination of the Remittance will be in a manner and using a method determined by Keller. Keller will provide Westlake with the amount of the Remittance, which Keller may change at any time. 5.3 Keller will add a charge to the remittance due for serving a residential property outside of the Keller city limits. 5.4 Westlake agrees to the manner and method of determination of the Remittance as provided in this Agreement. 6. BILLING 6.1 Westlake shall pay the remittance in full to Keller at the first of every month. 6.2 Westlake shall be responsible, at its own cost and expense, for meter reading and billing individual users. EFFECTIVE DATE AND TERM 7.1 The effective date of this Agreement is the date the Agreement is entered into as set forth in the introductory paragraph. TERMINATION 8.1 This Agreement may be terminated in whole or in part by the written mutual consent of Keller and Westlake. 8.2 Notwithstanding anything contained in this Agreement to the contrary, any breach by either party hereto in performing any of the duties or the obligations assumed by a party under this Agreement or to faithfully keep and perform any of the terms, conditions and provisions hereof shall be cause for termination of this Agreement by the other party, including termination of water or sewer service, as the case may be. 8.3 Either party desiring to terminate this Agreement shall deliver to the other party 60 days prior written notice. 8.4 Both parties agree to provide each other an opportunity to remedy any violation of the Agreement within thirty (30) days after the date that written notice is mailed to the violating party. The period of time to remedy a violation may be extended as is reasonable to the non -violating party considering the nature and extent of the violation. Any extension of time to remedy a violation must be specified in days in a written agreement. INTERLOCAL AGREEMENT PAGE 3 CITY OF KELLER AND TOWN OF WESTLAKE 9. LIABILITY FOR DAMAGES 9.1 Liabilities for damages arising from the treatment, transportation and delivery of water or sewer service provided under this Agreement shall be home by and remain with each party according to its proportionate share of the costs. 9.2 Each party agrees to save and hold the other party harmless from all claims, demands, and causes of action that may be asserted by anyone on account of the quality, transportation and delivery while water or sewer is in the control of that party. This covenant is not made for the benefit of any third party. 9.3 Any contracts made and entered into by either Keller or Westlake for the provision and implementation of this Agreement shall include the requirement that the independent contractor(s) trust provide adequate insurance protecting Keller and Westlake as co -insureds. The contract must also provide that the independent contractor(s) agree to indemnify, hold harmless and defend both Keller and Westlake against any and all suits or claims for damages of any nature arising out of the performance of the contract. 10. FORCE MAIEURE. 10.1 If by any reason of force majeure, either party hereto shall be rendered unable, wholly or in part, to carry out its obligations under this Agreement, then if that party shall give notice and full particulars of the force majeure in writing to the other party within a reasonable time after the occurrence of the event or cause relied on. The obligation of the party giving the notice, so far as it is affected by the force majeure, shall be suspended during the continuance of the inability then claimed, but for no longer period, and that party shall endeavor to remove or overcome the inability with all reasonable dispatch. 10.2 The term "force majeure", as employed herein, shall mean acts of God, strikes, lockouts or other industrial disturbances, acts of public enemy, orders of any kind of the government of the United States or the State of Texas, or any civil or military authority, insurrection, riots, epidemics, landslides, lightning, earthquake, fires, hurricanes, storms, floods, washouts, arrests, restraints of government and people, civil disturbances, explosions, breakage or accidents to machinery, pipelines or canals, partial or entire failure of water supply, and inability on the part of Westlake to deliver water hereunder or Keller to receive sewer hereunder on account of any other cause not reasonably in the control of the party claiming inability. 11. NOTICE 11.1 All payments, notices, requests and communications under this Agreement shall be given in writing, addressed to Westlake and Keller at their respective addresses set forth below and either (i) hand delivered, (ii) sent by telecopy or a INTERLOCAL AGREEMENT PAGE 4 CITY OF KELLER AND TOWN OF WESTLAKE nationally recognized overnight courier service, or (iii) mailed by registered or certified mail, return receipt requested, postage prepaid. To Keller: To Westlake: City of Keller, Texas Town of Westlake, Texas P.O. Box 770 2650 J. T. Ottinger Road Keller, Texas 76244 Westlake, TX 76262 Attn: City Manager Attn: Town Manager 11.2 Any notice under or pursuant to this Agreement and given in accordance with this Section shall be deemed received upon the earlier of: (1) actual receipt, (2) if mailed, three (3) days after deposit in an official depository of the United States Postal Service, and (4) if sent by a nationally recognized overnight courier service, the day following the mailing. Any party may change its address for notice purposes by sending the other party a notice of the new address. 12. MEDIATION. 12.1 Whenever any disputed matter is specifically authorized by this Agreement to be determined by the use of a mediator, the following procedure is to be followed. The party requesting that the dispute be settled by mediation shall serve on the other party a request in writing that the matter be submitted to mediation. Keller and Westlake shall mutually agree in writing on the selection of any mediator. Keller and Westlake shall mutually agree on a date for the mediation hearing. The decision of the mediator shall not be final, but shall be a condition precedent to filing suit. All costs of mediation shall be considered an Operation and. Maintenance Cost. Mediation shall take place in Tarrant County, Texas. 13. INSPECTION AND AUDIT. 13.1 Each party hereto shall keep complete records and accounts pertaining to this Agreement in accordance with State Law or for a minimum period of five years. Each party shall at times, upon notice, have the right at reasonable times to examine and inspect the records and accounts during non -nal business hours; and further, if required by any law, rule or regulation, make said records and accounts available to federal and/or state auditors. 14. MISCELLANEOUS. 14.1 This Agreement is subject to all applicable federal and state laws and any applicable permits, amendments, orders, or regulations of any state or federal governmental authority having or asserting jurisdiction, but nothing contained herein shall be construed as a waiver of any right to question or contest any such law, order, rule, or regulation in any forum having jurisdiction. INTERLOCAL AGREEMENT PAGE 5 Cn'Y OF KELLER AND TowN OF WESTLAKE 14.2 Upon prior notice by either party, any authorized employee or representative of a party bearing identification shall notify the other party of need for access to any premises located within the other party's service area or served by the other party as may be necessary for the purpose of inspections and observation, measurements, sampling, and testing and/or auditing, in accordance with the provisions of this Agreement. The other party may elect to accompany the requesting party's representative. To the extent permitted by law, the requested party agrees to indemnify the other party for any damage or injury to person or property caused by the negligence of the duly authorized employee while the employee is in the course and scope of his or her employment. 14.3 In addition to any other remedy as may be provided by law, this agreement shall be specifically enforceable by the parties hereto. Venue for any action shall be in Tarrant County, Texas. 14.4 It is agreed that, in the event any term or provision herein contained is held to be held invalid by any court of competent jurisdiction, the invalidity of the term or provision shall in no way affect any other term or provision contained herein; further, this Agreement shall then continue as if the invalid term or provision had not been contained herein. 14.5 Keller may not assign this Agreement without the prior written consent of Westlake. Westlake may not assign this Agreement without the prior written consent of Keller. 15. INDEMNIFICATION. 15.1 To the extent permitted by law, Keller agrees to indemnify and save and hold Westlake harmless from all claims, liabilities, demands, attorneys' fees and causes of action arising from any negligent act or omission of Keller. This covenant is not made for the benefit and shall not inure to the benefit of any third party- 15.2 ly 15.2 To the extent permitted by law, Westlake agrees to indemnify and save and hold Westlake harmless from all claims, liabilities, demands, attorneys' fees and causes of action arising from any negligent act or omission of Westlake. This covenant is not made for the benefit, and shall not inure to the benefit, of any third party. 16. AMENDMENT, 16.1 Any agreement hereafter made between Westlake and Keller shall be ineffective to modify, release, or otherwise affect this Agreement, in whole or in part, unless the agreement is in writing and signed by both parties. INTERLOCAL AGREEMENT PAGE 6 CITY OF KELLER AND TOWN OF WESTLAKE 17. WAIVER. 17.1 The failure of either party to this Agreement to complain of any action, non- action, or default of the other party shall not constitute a waiver of any of that party's rights under this Agreement. 17.2 Waiver by either party to this Agreement of any right for any default of the other party shall not constitute a waiver of any right of either party for a prior or subsequent default of the same obligation or any prior or subsequent default of any other obligation. 17.3 No right or remedy of either party under this agreement or covenant, duty, or obligation of either party under this Agreement shall be deemed waived by the other party to this Agreement unless the waiver is in writing and signed by the waiving party. 18. PARTIES AND SUCCESSORS. 18.1 Subject to the limitations and conditions set forth elsewhere herein, this Agreement shall bind and inure to the benefit of the respective heirs, legal representatives, successors, and assigns of the parties hereto. 19. CAPTIONS. 19.1 The captions in this Agreement are inserted only as a matter of convenience and for reference and they in no way define, limit, or describe the scope of this Agreement or the intent of any provision hereof. 20. NUMBER AND GENDER. 20.1 All genders used in this Agreement shall include the other genders, the singular shall include the plural, and the plural shall include the singular, whenever and as often as may be appropriate. 21. ENTIRE AGREEMENT. 21.1 This Agreement, including all exhibits that may be attached hereto are hereby incorporated herein and shall constitute a portion hereof. This Agreement contains the entire agreement between Keller and Westlake with respect to the subject matter hereof. Further, the terms and provisions of this Agreement shall not be construed against or in favor of a party merely because that party or its counsel is the drafter of this Agreement. INTERLOCAL AGREEMENT PAGE 7 CITY OF KELLER AND TowN OF WESTLAKE 22. ATTORNEY'S FEES. 22.1 In the event Westlake or Keller defaults in the performance of any of the terms, agreements, or conditions contained in this Agreement and the enforcement of this Agreement, or any part thereof, is placed in the hands of any attorney who files suit upon the same, the non -prevailing party shall pay the reasonable attorney's fees, expenses and costs of the prevailing party. EXECUTED as of the date hereinabove first set forth. TOWN OF WESTLAKE, TEXAS: By: Trent Petty, Town2n cr, ATTEST: By: J n Dwinnell, Town Secretary DaterA7S Approved as to Form: ;tanton w orney CITY OF KELLER, TEXAS: e� Lyle Dres er, City Manager ATTEST: Date: ! z) &A"f Approved as to Form: L. tanton y, C' ttorney H:1Boy1e-Lowry\West Lakelwl-agreementslagr-interloc agr wl kr sewer line draft 5-25-05.DOC INTERLOCAL AGREEMENT CITY OF KELLER AND TOWN OF WESTLAKE PAGE 8