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20-R-12 - Amending Interlocal Agreement with City of Cibolo regarding cost sharing for improvements to Weiderstein Road-Cibolo Valley DriveRESOLUTION NO. 20 -R -12 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING THE CITY MANAGER TO ENTER INTO AN AMENDED INTERLOCAL AGREEMENT WITH THE CITY OF CIBOLO REGARDING COST SHARING FOR IMPROVEMENTS TO WIEDERSTEIN ROAD. WHEREAS, the City of Schertz and the City of Cibolo desire to work together to make improvements to Wiederstein Road; and WHEREAS, Wiederstein Road serves the transportation needs or both communities; and WHEREAS, develop activity that is occurring in the vicinity will only add additional traffic to Wiederstein Road; and WHEREA, future construction to FM 1103 and Interstate Highway 35 will likely increase the amount of traffic on Wiederstein Road,; now therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manager to enter into the Interlocal Agreement for the improvement of Wiederstein Road with the City of Cibolo as set forth in Exhibit A. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this 28th day of January, 2020. CITY OF SCHERTZ, TEXAS alpl utierrez, Mayor ATTEST: (a- '�q , LL L�'v i Brenda Dennis, City Secretary EXHIBIT A Attached THE STATE OF TEXAS COUNTY OF GUADALUPE PREAMBLE: § FIRST AMENDMENT AND RESTATEMENT § OF INTERLOCAL AGREEMENT BETWEEN § THE CITY OF SCHERTZ AND THE CITY OF § CIBOLO This FIRST AMENDMENT AND RESTATEMENT OF INTERLOCAL AGREEMENT BETWEEN THE CITY OF SCHERTZ AND THE CITY OF CIBOLO (this "Amendment ") is entered into effective as of February 11, 2020 the City of Cibolo and the City of Schertz (collectively referred to as the "Parties'), and completely amends and restates that certain Interlocal Agreement between the City of Schertz and the City of Cibolo dated executed to be effective as of 3rd day of September, 2019 (as restated by this Amendment, the "Agreement "). The Parties enter into this Amendment under the general provisions of the Interlocal Cooperation Act, Texas Government Code Chapter 791, under the specific authority of §791.026 and Texas Education Code §44.031(a)(5). This Amendment is made for the purpose of efficient and effective use of resources and is in the best economic interests of the Parties. The City of Cibolo and the City of Schertz are political subdivisions of the State of Texas. RECITALS WHEREAS, the Parties have identified certain common, legitimate public purposes in entering into this Agreement; and WHEREAS, the governing bodies of the City of Cibolo and the City of Schertz each met in legally convened open meetings and authorized their respective representatives to enter into this Agreement; and WHEREAS, the Parties intend to enter into a new agreement whereby the City of Cibolo will construct or cause to be constructed Wiederstein Road generally from Cibolo Valley Drive through the intersection of the northbound frontage road of Interstate Highway 35, the full right -of -way which is located in the corporate boundaries of Cibolo and Schertz, as shown on Exhibit "A" and the City of Schertz contribute funds toward that construction; and WHEREAS, the City of Schertz desires to provide up to $1,300,000 towards the cost of the construction; and WHEREAS, the City Council of the City of Schertz has changed the name of Wiederstein Road from Cibolo Valley Drive to the northbound frontage road of Interstate Highway 35 to Cibolo Valley Drive via Ordinance 19 -S -16 in support of working in partnership with the City of Cibolo on areas of mutual interest; and AOaC nCC') ' AOO .. A WHEREAS, the City of Cibolo and City of Schertz desire to make additional roadway improvements to the intersections of both the north and south bound frontage road of Interstate Highway 35 and Wiederstein Road; and WHEREAS, the Texas Department of Transportation (TxDOT) controls the right -of -way of the intersection of the frontage roads of Interstate Highway 35 and Wiederstein Road, and their approval is required to make improvements to the intersections, both cities will petition and support request to TxDOT for approval and additional funding contributions to make intersection improvements. NOW THEREFORE, the Parties, for and in consideration of the covenants and agreements herein set forth to be kept and performed by them respectively, have agreed to and do hereby agree together as follows: I. DEFINITIONS A. "Breach" occurs when any of the Parties fails or refuses to perform one or more of the duties set forth in this Agreement. B. "Developer" means Babcock Road 165, Ltd., a Texas limited partnership, and its successors and assigns. C. "Development Agreement" means that certain Chapter 380 Economic Development Agreement entered into or to be entered into by and between the City of Cibolo and Developer. D. "Force Majeure" means an event beyond the reasonable control of a party obligated to perform an act or take some action under this Agreement including, but not limited to, acts of God, earthquake, fire, explosion, war, civil insurrection, acts of the public enemy, act of civil or military authority, sabotage, terrorism, floods, lightning, hurricanes, tornadoes, severe snow storms or utility disruption, strikes, and lockouts. E. "Notice" occurs upon written communication by one party to the other as specifically defined in this Agreement. Notice to the Parties is satisfied by written communication to the address designated in Section IV(A). F. Use of the singular shall include the plural, and vice versa, where the usage permits reasonable construction of this Agreement. II. TERM OF AGREEMENT The term of this Agreement will begin February 11, 2020. The term of this Agreement will end when the City of Schertz accepts the Project (as hereafter defined) and authorizes the release from Escrow to Developer of its $1,300,000 contribution toward the Project costs. 2 4816- 9553 -3488, v. 4 III. MUTUAL PROMISES AND COVENANTS OF THE PARTIES The Parties, in consideration of the mutual promises and covenants contained in this Agreement, agree as follows: A. The recitals set out in the preamble are hereby incorporated herein, for all purposes. B. Pursuant to the terms of the Development Agreement, the City of Cibolo shall cause to be constructed, roadway, traffic signals and associated improvements more particularly shown on the plans and specifications prepared by Westwood Professional Services, signed and sealed by Arlyn Samuelson, P.E. and Steve Manhart, P.E. on November 19, 2019, and approved by the Parties ( "Construction Plans ") for improvement to Wiederstein Road between Interstate 35 to Old Wiederstein Road (approximately 3,100 feet) called the "Project ". C. The Construction Plans for the Project have been prepared by the Developer using the design standards of the City of Schertz. D. The improvements shall be built and completed in accordance with the City of Schertz design standards within fifteen (15) months of the beginning if the term of this Agreement, unless extended by Force Majeure. E. Pursuant to the terms of the Development Agreement, the City of Cibolo shall cause to be procured a construction company to construct the Project. The City of Schertz shall provide inspections throughout the project to insure the Project is being constructed in accordance with the approved plans. Changes made in the plans during construction shall be approved by both Cities. F. The costs of the Wiederstein Road improvements are estimated to be Four Million Eight Hundred Six Thousand Seven Hundred Sixty -Two Dollars ($4,806,762) (the "cost estimate "), as more particularly shown on Exhibit "B" attached hereto and made a part hereof for all purposes. G. Within thirty (30) days of the beginning of the term of this Agreement: (i) the City of Schertz shall deposit into escrow the amount of One Million Three Hundred Thousand Dollars ($1,300,000) for the City of Schertz's contribution to the cost of construction of Wiederstein Road to be released and paid upon completion and acceptance of the Wiederstein Road Improvements by the City of Schertz, and (ii) the City of Cibolo shall cause the Developer to provide or cause to be provided a surety in a form agreeable to the City of Schertz in the amount of Three Million Five Hundred Twenty -Five Thousand ($3,525,000) that can be used by the City of Schertz to construct the Project pursuant to the terms of Section 3 (I) hereof. Upon the completion of the Wiederstein Road Improvements and acceptance by the City of Schertz, the City of Schertz shall be responsible for all maintenance of the Wiederstein Road Improvements. H. The costs of improvements are subject to review by the City of Schertz and shall be standard reasonable costs. 4816 - 9553 -3488, v. 4 I. The City of Cibolo will provide monthly updates on the status of construction of the Wiederstein Road Improvements and shall meet the schedule attached as Exhibit "C "; provided, however, such dates may be extended due to Force Majeure and the terms, notice periods, and cure periods due the Developer pursuant to the Development Agreement (i. e. the Development Agreement provides that Developer has thirty (3 0) days after receipt of notice from the City of Cibolo to cure any default, provided that in the event the cure cannot be achieved in thirty (30) days with diligent pursuit, Developer will have sixty (60) days after receipt of such notice to cure, or longer if allowed by the City of Cibolo). After giving effect to such extensions, should the City of Cibolo fail to meet the construction schedule in Exhibit "C ", they are considered to be in Breach of the agreement. The City of Cibolo will have sixty (60) working days to address the default. If, after the expiration of all Force Maj eure and applicable extension, notice, and cure periods under the Development Agreement, the Developer defaults under the Development Agreement in its duties to timely construct the Project, the City of Schertz shall have the right, but not the obligation, to assume responsibility for the construction of the Project. If the City of Schertz chooses to exercise such option and provides notice of default thereof, within sixty (60) days, the City of Cibolo shall provide the balance of funding for the Project to the City of Schertz to be used to complete the construction. IV. MISCELLANEOUS A. Notice and Addresses. All notices required hereunder must be given by certified mail or registered mail, addressed to the proper Party, at the following addresses: To City of Schertz: City of Schertz, Texas Attn: Dr. Mark Browne, City Manager 1400 Schertz Parkway Schertz, TX 78154 With a copy to: City of Cibolo, Texas Attn: Robert T. Herrera, City Manager 200 S. Main Street Cibolo, TX 78108 Either Party may change the address to which notices are to be sent by giving the other Party notice of the new address in the manner provided in this section. Notices shall be deemed to have been received three (3) days after deposit in the mail. For ease of administration of this contract, a main contact person has been designated for each of the Parties as follows: For the City of Cibolo: Robert T. Herrera. City Manager For the City of Schertz: Mark Browne. City. Mana per B. Parties Bound. This Agreement shall be binding upon, and inure to the benefit of, the Parties of this Agreement and their respective heirs, executors, administrators, legal representatives, successors, and assigns. 4 4816 -9553 -3488, v. 4 C. Prior Agreement Superseded. This Agreement constitutes the sole and only agreement of the Parties regarding their responsibilities to each other concerning the work noted herein on the Project and supersedes any prior understandings or written or oral agreements between the Parties respecting the Project. This Agreement in no way modifies or supersedes any document executed by the Parties prior to this Agreement which does not involve the Project. D. Amendment. No amendment, modification, or alteration of the terms of this Agreement shall be binding unless it is in writing, dated subsequent to the date of this Agreement, and duly executed by the Parties to this Agreement. E. Hold Harmless. The City of Cibolo will hold the City of Schertz harmless from any claims contemplated by this Agreement (e.g., contract claims between the City and any contractors and /or injury or property damage claims) to the extent permitted by Texas law. The City of Cibolo is solely responsible and liable for ensuring all requirements for procurement and bidding are followed. F. Violation of Law. The City of Cibolo and the City of Schertz shall not knowingly violate any Federal, State or local Jaws, regulations, or ordinances in the performance of this Agreement. G. Enforceability. If any provision of this Agreement proves unlawful or unenforceable by a court having jurisdiction over the Parties or the subject matter, such provision shall be severable from the other provision of this Agreement, and all remaining provision shall be fully enforceable. H. Governing Law and Place for Performance. This Agreement shall be governed by the laws of Texas, which state shall also be deemed the place where this Agreement was entered into and the place of performance and transaction of business and Parties. In the event of litigation pertaining to the Agreement, the exclusive forum, venue, and place of jurisdiction shall also be the County of Guadalupe and the State of Texas unless otherwise agreed in writing by the Parties. The Parties acknowledge that each has had the unfettered opportunity to review, revise, and negotiate the terms of this Agreement and that if in the future there is a dispute as to the meaning of any provision herein, then no such provision shall be construed against the drafter of the Agreement. I. Exhibits Incorporated. All exhibits to this Agreement are incorporated by reference as if completely set out herein. J. Signature Warranty Clause. The signatories to this Agreement represent and warrant that they have the authority to execute this Agreement on behalf of the City of Cibolo and the City of Schertz, respectively. K. No Waiver of Immunities. Nothing in the Agreement shall be construed to waive any immunities from suit or liability enjoyed by the City of Cibolo, the City of Schertz, their past or present officers, employees, or agents of employees. 5 4816 9553.3488, v. 4 L. No Third Party Beneficiary. This Agreement inures to the benefit of and obligates only the parties executing it. No term or provision of this Agreement shall benefit or obligate any person or entity not a party to it besides the Developer, as detailed herein. The parties hereto shall cooperate fully in opposing any attempt by any third person or entity besides the Developer to claim any benefit, protection. release, or other consideration under this Agreement. M. No Joint Venture. Nothing contained herein shall be deemed or construed by the parties hereto, or by any third party, as creating the relationship of principal and agent, partners, joint ventures, or any other similar such relationship between the parties hereto. N. Approval by Governing Bodies. This Agreement has been approved by the Governing bodies of the City of Cibolo and the City of Schertz. O. Payment from Current Revenues. Each Party paying for the performance of governmental functions or services must make those payments from current revenues available to the paying Party. P. Assignment. Neither Party may assign their interests in this Agreement except upon receiving the written consent of the other Party. EXECUTED TO BE EFFECTIVE this as of the l a► day of F4h . , 20 a0 CITY OF CIBOLO By: GR4-14k� Robert T. Herrera, City Manager ATTEST: By: Peggy Cimics, City Secretary CITY OF SCHERTZ By: &41� M rk rowne, Gly Manager ATTEST: By: QX2111'� Brenda Dennis, City Secretary 4816- 9553 -3488, v. 4 DEPICTION OF PROJECT Exhibit "A" RXNTRTT "R" ESTIMATED PROJECT COST bolo VmlWy Cifive (aku Wfedersteln Rcxad) Upansl rn Project Estimated P ect Cost Deiber 27, 2019 tcrlti�ar n1 Bum Prop , IW!d Pd Me Contract -JR -Skew l€ 4,,�Wy432. 4,200,52S.00 En gineel aril S4,�F$li�Yr -'M�d' ad (Paid to Date) 430 t D 24. i rgkneering - ConVxudlan AdmFn (Budget), _ 60,E 00 -u. myins - Constructfon (Budges &VIroMental Studies a Spa l Ind) 34608M Geotechni Studi m Ra,ha Iffier (Paid) 7, S. Testing= Raba Drier (Budge.) 22,1 -. 00 a.5i, 0 ve 0 t 9e4o4. -!ron Le ud1wt - � E�J��tl® .Rtdi �7rA� �J�P 4.�S�F 70,000a .� ,,��,��ii 44-. Subtftal pp p7 Te f 4, :1j93'%G00 +4,,8 400 4,p.d�12,522, O .9°@',.10 4,8%,762:(* Exhibit `B" EXHIBIT "C" CONSTRUCTIONS SCHEDULE Exhibit "C"