Denton Co Levee-CS120411
INTERLOCAL AGREEMENT
BETWEEN
CITY OF COPPELL
AND
DENTON COUNTY LEVEE IMPROVEMENT DISTRICT NO. 1
FOR PROJECT FUNDING
THIS INTERLOCAL AGREEMENT (“Agreement”) is made by and between the
CITY OF COPPELL, a political subdivision of the State of Texas, organized and
operating under the laws of the State of Texas (the “City”), and DENTON COUNTY
LEVEE IMPROVEMENT DISTRICT NO. 1 (the “District”), a political subdivision of the
State of Texas. This Agreement is made in accordance with Chapter 791, Government
Code, Chapter 57, Water Code, and all other applicable laws.
RECITALS
WHEREAS, the District operates and maintains levees protecting land within its
boundaries, including portions of the City, from damaging flooding;
WHEREAS, the District and City has an interest in preventing the weakening and
undermining of the levees protecting its citizens, property, and infrastructure;
WHEREAS, the City had previously installed drainage structures including pipes
penetrating the levee wall and flumes (the “structures”) which outfall into the drainage
channel;
WHEREAS, the District’s Engineer has observed serious erosion in the District’s
levee bank which is starting to undermine the slope end sections of pipes that outfall into
the flood control channel;
WHEREAS, failure for the District and the City to take action could result in more
costly repairs in the future for both City and the District;
WHEREAS, the District and the City desire to repair the structures and provide
flood control, and provide for joint funding by the City and District for the structures’
repairs to achieve efficiency and cost savings; NOW, THEREFORE
AGREEMENT
For and in consideration of the mutual promises, covenants, obligations, and benefits of
this Agreement, the District and the City contract and agree as follows:
Section 1. THE PROJECT
The Project is defined as the implementation of erosion protection at several outfalls
along Denton Creek between MacArthur Boulevard and Denton Tap Road. The specific
Exhibit “A”
work required it set forth in , attached hereto. The District portion and the
City portion of the Project are described and the costs allocated equally among the
parties.
Section 2. OBLIGATIONS OF THE CITY
2.1. Project Funding. After execution of this Agreement, the City shall pay to the
District fifty percent (50%) of the costs of the Project in a total amount as estimated in
Exhibit “A”
. In paying the foregoing amount, the City may make reasonable progress
payments, as the work proceeds in amounts recommended by the District Engineer, or
designee (the “Project Manager”), or in a single lump sum payment, all as may be
acceptable to the District.
Section 3. OBLIGATIONS OF THE DISTRICT
3.1. Construction of Project. The District will cause the construction of the Project in a
good and workmanlike manner pursuant to:
(1)
the Project’s plans and specifications;
(2) competitive bidding procedures, if applicable, for similar public
infrastructure improvements;
(3) the provision of statutory performance and payment bonds for the full cost
of the Construction Contract, if required; and,
(4) the provision of a one-year maintenance bond, if required.
The District shall provide the City with reasonable information and updating regarding
the progress of the Project, including the following: (1) advertisement for bids, (2) award
of construction contracts, (3) construction contract documentation, (4) notices to
proceed, (5) pay estimates and change orders, (6) materials testing, (7) contractor
defaults, and (8) completion and finalization of the Project.
3.2. Cost Overruns. Subject to the provisions of Section 3.3 below, the District shall
be responsible for any costs of the Project exceeding $_____, whether caused by delay,
change orders, or any other reason.
3.3. Change Orders. The District shall notify the City if a construction change order is
required. If the amount of the change order does not exceed the budgeted contingency
in Section 3.2 hereinabove and the City consents to the change order, the District may
approve the change order. If approval of the change order would exceed the budgeted
contingency in Section 3.2 hereinabove and the City consents to the change order, the
Project Manager will present to the District’s Board of Directors a request to appropriate
the required additional funds above the budgeted contingency.
Section 4. MISCELLANEOUS
4.1. Agreement Term. This Agreement shall become effective and
commence as of the date reflected herein (the “Effective Date”). Unless earlier
terminated by the parties hereto, this Agreement terminates when both of the following
have occurred: (1) completion and acceptance of the Project, and (2) full and final
payment by the City to the District of all amounts due and payable pursuant to this
Agreement.
4.2. Addresses. The initial addresses of the parties, which one party
may change by giving written notice of its changed address to the other party, are as
follows:
City of Coppell: __________________
__________________
Attn: _____________
District: Sanford Kuhl Hagan Kugle Parker Kahn LLP
Suite 1380
1980 Post Oak Boulevard
Houston, Texas 77056
Attn: Julianne Kugle
4.3. Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed delivered on the earlier of the date of actual receipt or the
third day following deposit in a United States Postal Service post office or receptacle
with proper postage affixed (certified mail, return receipt requested) addressed to the
respective other party at the address prescribed in Section 4.3 of this Agreement or at
such other address as the receiving party may have theretofore prescribed by notice to
the sending party.
4.4. Assignment. Except has provided herein, no party hereto shall
make, in whole or in part, or in law or otherwise, any assignment of this Agreement or
any obligation hereunder without the prior written consent of the other party hereto.
4.5. Governing Law. This Agreement is subject to all laws of the State
of Texas, the Charter and Ordinances of the City, the laws of the federal government of
the United States of America, and all rules and regulations of any regulatory body or
officer having jurisdiction. Any action to enforce or interpret this Agreement shall be
brought in the court of appropriate jurisdiction in the Denton, County, Texas.
4.6. Third Party Beneficiary. Except as provided herein, this
Agreement shall not bestow any rights upon any third party, but rather shall bind and
benefit the District and the City only.
4.7. Severability. In the event any term, covenant, or condition herein
contained shall be held to be invalid by any court of competent jurisdiction, such
invalidity shall not affect any other term, covenant, or condition herein contained,
provided that such invalidity does not materially prejudice either the District or the City in
their respective rights and obligations contained in the valid terms, covenants, or
conditions hereof.
4.8. Written Amendment. Unless otherwise provided herein, this
Agreement may be amended only by written instrument duly executed on behalf of each
party.
4.9. Non-Waiver. Failure of any party hereto to insist on the strict
performance of any of the agreements herein or to exercise any rights or remedies
accruing hereunder upon default or failure of performance shall not be considered a
waiver of the right to insist on, and to enforce by any appropriate remedy, strict
compliance with any other obligation hereunder or to exercise any right or remedy
occurring as a result of any future default or failure of performance.
4.10. Successors. This Agreement shall bind and benefit the parties
and their legal successors. This Agreement does not create any personal liability on the
part of any officer, director, employee, or agent of the District or the City.
4.11. No Waiver of Immunity. No party hereto waives or relinquishes
any immunity or defense on behalf of itself, its trustees, officers, employees, and agents
as a result of its execution of this Agreement and performance of the covenants
contained herein.
4.12. Time is of the Essence. 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
caused by Force Majeure. Force Majeure means fires, floods, and other acts of God,
explosions, war, terrorist acts, riots, strikes, court orders, and the acts of superior
governmental or military authority.
4.13. Captions. Captions contained in this Agreement are for reference
only, and, therefore, have no effect in construing this Agreement. The captions are not
restrictive of the subject matter of any section in this Agreement.
[EXECUTION PAGE FOLLOWS]
IN WITNESS WHEREOF, the City and the District have caused this
instrument to be duly executed and to take effect on the ____ day of
_____________________, 2012
.
CITY OF COPPELL
By:
Mayor
ATTEST:
By:
City Secretary
DENTON COUNTY LEVEE IMPROVEMENT DISTRICT NO. 1
By:
President, Board of Directors
ATTEST:
By:
Secretary, Board of Directors
EXHIBIT A
HALFF April 12, 2012 Memorandum