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Resolution 2020-45RESOLUTION NO. 2020-45(R) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS, AUTHORIZING THE CITY MANAGER OF THE CITY OF WYLIE, TEXAS, OR HIS DESIGNEE, TO EXECUTE AN INTERLOCAL AGREEMENT BETWEEN THE WYLIE NORTHEAST SPECIAL UTILITY DISTRICT AND THE CITY OF WYLIE TO PROVIDE FOR THE OPERATION AND MAINTENANCE OF FIXED BASE METER READING ANTENNAS, AND TO TAKE ANY AND ALL OTHER ACTIONS NECESSARY TO EFFECTUATE THE SAME; AND PROVIDING FOR AN EFFECTIVE DATE HEREOF. WHEREAS, Wylie Northeast Special Utility District (the "District") and the City of Wylie, Texas ("Wylie") have the authority to enter into an interlocal agreement pursuant to the Texas Interlocal Cooperation Act, Chapter 791 of the Texas Government Code; and WHEREAS, the District and Wylie desire to enter into an interlocal agreement regarding the operation and maintenance of fixed based meter reading antennas, as described in the Interlocal Agreement attached hereto as Exhibit 1 (the "Agreement"); and WHEREAS, Wylie is authorized by law to perform the services it is required to perform under the Agreement; and WHEREAS, the City Council finds that adopting this resolution and approving the Agreement will promote the health, safety and welfare of Wylie's citizens. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS: SECTION 1. The findings set forth above are incorporated into the body of this resolution as if fully set forth herein. SECTION 2. The Wylie City Manager, or his designee, is hereby authorized to execute, on behalf of Wylie, the Agreement, in the form attached hereto as Exhibit 1, and to take any and all other actions necessary to effectuate the same. Should the final, executed version of the Agreement be modified from the version attached as Exhibit 1, such final, executed version shall replace Exhibit 1 of this resolution for all purposes. SECTION 3. A copy of this resolution shall be forwarded to the District. SECTION 4. This resolution shall be effective immediately upon its passage. [The remainder of this page intentionally left blank.] Resolution No. 2020-45(R) Interlocal Agreement with Wylie Northeast Special Utility District Page 1 of 3 3145700 DULY PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS on this 25 day of August 2020. ATTEST TO: J _ livvvuit keiLix, Stephanie Storm, City Secretary Resolution No. 2020-45(R) Interlocal Agreement with Wylie Northeast Special Utility District Page 2 of 3 3145700 Exhibit 1 Form of Agreement Resolution No. 2020-45(R) Interlocal Agreement with Wylie Northeast Special Utility District Page 3 of 3 3145700 INTERLOCAL AGREEMENT FOR THE MUTUAL PLACEMENT AND OPERATION OF ANTENNA FACILITIES This Interlocal Agreement for the Mutual Placement and Operation of Antenna Facilities ("Agreement") is made by and between the City of Wylie, a Texas home -rule municipality (the "City"), and the Wylie Northeast Special Utility District, a political subdivision of the State of Texas (the "District"). WHEREAS, the District is a retail public utility that owns and operates a water utility system which relies on wireless radio meter reading technology to transmit customer water usage data from the field; and WHEREAS, the City operates a municipally owned public utility that owns and operates separate a water utility system which relies on wireless radio meter reading technology to transmit customer water usage data from the field; and WHEREAS, the City owns and operates a communications tower on City -owned property located in the City; and WHEREAS, the District has determined that installing a Fixed Base Meter Reading Antenna on a City -owned communications tower located at the Colby Street Lift Station will allow full coverage of the District's water service area; and WHEREAS, the District owns and operates a water tower on District -owned property located in the City; and WHEREAS, the City has determined that installing a Fixed Base Meter Reading Antenna on a District -owned water tower located at 721 Parker Road (C.R. 725), Wylie, Texas, will allow full coverage of the City's water service area. NOW THEREFORE, in consideration of the mutual covenants contained herein, the City and the District agree as follows: 1. Permitted Tower Uses. (a) The City will allow the District to install and operate a Fixed Base Meter Reading Antenna on the City -owned communications tower situated on the following property: Lot 19, Block D, WYLIE LAKES, PHASE 1A, an addition to the City of Wylie, Texas, according INTERLOCAL AGREEMENT BETWEEN THE CITY OF WYLIE AND WYLIE NORTHEAST SUD Amended Mutual Tower Lease with Wylie to the amended plat thereof recorded on September 12, 2007, as Document No. 20070912010003320, in Cabinet 2007, Slides 498-499, Plat Records, Collin County, Texas. (b) The District will allow the City to install and operate a Fixed Base Meter Reading Antenna, including related cabling and fixtures, on the District -owned water tower situated on property located at 721 Parker Road (C.R. 725), Wylie, Texas, and more particularly described as follows: Being a 1.868± acre tract of land situated in the I. & G.N. RY. CO. SURVEY, Collin County, Texas, and more particularly described in a General Warranty Deed recorded as Instrument No. 20060118000071800 in the Official Public Records of Collin County, Texas. (c) Each party's Tower may be used by the other party only for permitted uses, which are (i) the transmission and reception of communications signals; (ii) the installation, alteration, maintenance, repair, replacement and relocation of approved antenna facilities; and (iii) activities related to any of the foregoing. 2. Installation of Antenna Facilities. Each party shall have the right, at its own expense, to install and maintain its respective Fixed Base Meter Reading Antenna (hereinafter referred to as an "antenna facility" or collectively as the "antenna facilities") on the other party's Tower in a good and workmanlike manner that does not interfere with existing communication equipment on the Tower, if any. Each party will submit a site plan and construction plans and specifications to the other party for approval prior to installation, and such approval shall not be unreasonably withheld. Each party has the right to inspect and approve the installation and modification of an antenna facility on its tower and will have final inspection and approval on the other's installation, and such approval shall not be unreasonably withheld. Each party shall provide to the other party at least one (1) day prior written notice of its desire to install or modify an antenna facility. Each party shall cause all installation, alteration, maintenance, repair, replacement, and relocation work to occur in a lien -free manner and in compliance with all applicable laws and ordinances. The antenna facilities shall remain the sole property of the party installing the facility. 3. Maintenance of Antenna Facilities. Each party shall have access to the other party's Tower for purposes of installing and maintaining the antenna facilities Monday through Friday, between 9:00 A.M. and 4:00 P.M. Each party shall provide to the other INTERLOCAL AGREEMENT BETWEEN THE CITY OF WYLIE AND WYLIE NORTHEAST SUD Amended Mutual Tower Lease with Wylie party at least one (1) day prior written notice of its desire to enter onto the other party's Tower site. Each party hereby grants the other party rights of ingress, egress, and access to its respective Tower for purposes of installing and maintaining the antenna facilities. Each party shall, at its own expense, keep and maintain the antenna facilities and related improvements now or hereafter located thereon in good condition and repair during the term of this Agreement. Upon termination of this Agreement, each Tower shall be returned to the other party in the same condition as of the date of this Agreement, reasonable wear and tear excepted. Each party shall pay any utility charges resulting from that party's use of a Tower. 4. Standards. All work will be performed in accordance with applicable codes and regulations and approved plans. Each party shall ensure that the antenna facilities and other equipment it places on the other party's property meets all manufacturer and industry standards applicable to such antenna facilities and equipment. 5. No Rental. Neither party will pay rent to the other party under this Agreement. 6. Term. This Agreement shall automatically renew annually until terminated by either party in accordance with paragraph 7 below. 7. Termination. This Agreement may be terminated for any reason or for no reason by the City or the District upon giving 30 days written notice to the other party. 8. Tower Maintenance. Upon giving at least thirty (30) days prior written notice, either party must remove some or all of their antenna facility as necessary for the other party to perform tower maintenance. 9. Insurance. Each party shall procure and maintain a minimum of $1 million in all- risk insurance against property damage or loss to the other party's Tower and Tower site, and other appropriate types and amounts of insurance or other coverage, including self-insurance, to cover the other party's property involved in this Agreement (including General Liability, Real and Personal Property, and Workers Compensation), and the acts of its employees and agents in performing each party's respective obligations herein. Such coverage will be primary to any insurance maintained by the other party. Each party agrees to waive all rights of subrogation against the other party, its officers, officials, employees and volunteers for losses arising (including but not limited to death, property damage, or any other loss to the extent that same is covered by the proceeds of the insurance) from work performed by a party or its contractors or sub -contractors on property owned or controlled by the other party. Upon reasonable inquiry, each party will provide the other party with appropriate insurance or coverage information related to the duties under this section. INTERLOCAL AGREEMENT BETWEEN THE CITY OF WYLIE AND WYLIE NORTHEAST SUD Amended Mutual Tower Lease with Wylie 10. Indemnification. TO THE EXTENT ALLOWED BY LAW, EACH PARTY AGREES TO RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY AND ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ALL CLAIMS OR CAUSES OF ACTION FOR INJURIES (INCLUDING DEATH), PROPERTY DAMAGES (INCLUDING LOSS OF USE) AND ANY OTHER LOSSES, DEMANDS, SUITS, JUDGMENTS AND COSTS, INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES, IN ANY WAY ARISING OUT OF, RELATED TO, OR RESULTING FROM SUCH PARTY'S PERFORMANCE UNDER THIS AGREEMENT, OR CAUSED BY SUCH PARTY'S NEGLIGENT ACTS OR OMISSIONS (OR THOSE OF ITS RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, OR ANY OTHER THIRD PARTIES FOR WHOM IT IS LEGALLY RESPONSIBLE) IN CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT. IN ITS SOLE DISCRETION, EACH PARTY TO BE DEFENDED AND/OR INDEMNIFIED HEREUNDER ("PARTY TO BE DEFENDED") SHALL HAVE THE RIGHT TO REASONABLY APPROVE OR SELECT DEFENSE COUNSEL TO BE RETAINED BY THE PARTY PROVIDING A DEFENSE AND/OR INDEMNIFICATION HEREUNDER ("DEFENDING PARTY") IN FULFILLING ITS OBLIGATION HEREUNDER TO DEFEND AND INDEMNIFY THE PARTY TO BE DEFENDED, UNLESS SUCH RIGHT IS EXPRESSLY WAIVED BY THE PARTY TO BE DEFENDED IN WRITING. THE PARTY TO BE DEFENDED RESERVES THE RIGHT TO PROVIDE A PORTION OR ALL OF ITS OWN DEFENSE; HOWEVER, THE PARTY TO BE DEFENDED IS UNDER NO OBLIGATION TO DO SO. ANY SUCH ACTION BY THE PARTY TO BE DEFENDED IS NOT TO BE CONSTRUED AS A WAIVER OF THE DEFENDING PARTY'S OBLIGATION TO DEFEND THE PARTY TO BE DEFENDED OR AS A WAIVER OF THE DEFENDING PARTY'S OBLIGATION TO INDEMNIFY THE PARTY TO BE DEFENDED PURSUANT TO THIS AGREEMENT. THE DEFENDING PARTY SHALL RETAIN DEFENSE COUNSEL APPROVED BY THE PARTY TO BE DEFENDED WITHIN SEVEN (7) BUSINESS DAYS' WRITTEN NOTICE BY THE PARTY TO BE DEFENDED THAT IT IS INVOKING ITS RIGHT TO DEFENSE AND INDEMNIFICATION UNDER THIS AGREEMENT. IF THE DEFENDING PARTY FAILS TO RETAIN COUNSEL WITHIN SUCH TIME PERIOD, THE PARTY TO BE DEFENDED SHALL HAVE THE RIGHT TO RETAIN DEFENSE COUNSEL ON ITS OWN BEHALF, AND THE DEFENDING PARTY SHALL BE LIABLE FOR THE REASONABLE AND NECESSARY LEGAL COSTS INCURRED BY THE PARTY TO BE DEFENDED. THE RIGHTS AND OBLIGATIONS CREATED BY THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT. 11. Miscellaneous Provisions. INTERLOCAL AGREEMENT BETWEEN THE CITY OF WYLIE AND WYLIE NORTHEAST SUD Amended Mutual Tower Lease with Wylie (a) No Assignment. This Agreement is not assignable by either party. (b) Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the matters contained herein and may not be modified or terminated except upon the provisions hereof or by the mutual written agreement of the parties hereto. (c) Venue. This Agreement shall be construed in accordance with the laws of the State of Texas and shall be performable in Collin County, Texas. The venue of any dispute or matter arising under this Agreement shall be in Collin County, Texas. (d) Counterparts. This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. (e) Representations. Each signatory represents this Agreement has been read by the party for which this Agreement is executed and that such party has had an opportunity to confer with its counsel. The undersigned officers and/or agents of the parties are the properly authorized officials of the party represented and have the necessary authority to execute this Agreement on behalf of the parties hereto and each party hereby certifies to the other that any necessary resolutions extending said authority have been duly passed and approved and are now in full force and effect. Each party covenants and warrants to the other party that it has the full right, power and authority to grant the rights provided to the other party in this Agreement; that it has good and unencumbered title to its Tower free and clear of any liens or mortgages. Neither party is represented by a real estate broker in connection with this Agreement, and no real estate broker is entitled to a commission in connection with this Agreement. (f) Equal Drafting. This Agreement shall be deemed drafted equally by both 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. (g) Governmental Immunity. The parties agree that neither the City nor the District has waived any immunity or defense that would otherwise be available to it against claims arising in the exercise of their respective governmental powers and functions. (h) Notice. Except as otherwise provided for herein, any notice required to be sent INTERLOCAL AGREEMENT BETWEEN THE CITY OF WYLIE AND WYLIE NORTHEAST SUD Amended Mutual Tower Lease with Wylie under this Agreement must be in writing and may be served (i) by depositing it in the United States Mail, addressed to the party to be notified, postage pre -paid and certified with return receipt requested, or (ii) by delivering the same in person to such party via a hand -delivery service, Federal Express or any courier service that provides a return receipt showing the date of actual delivery. Notice given in accordance herewith shall be effective upon receipt by the addressee. For purposes of notice, the addresses of the parties are as follows: To the City: City of Wylie Attn: City Manager 300 Country Club Road Wylie, TX 75098 To the District: Wylie Northeast SUD Attn: General Manager 745 Parker Road Wylie, Texas 75098 [Signature page follows.] INTERLOCAL AGREEMENT BETWEEN THE CITY OF WYLIE AND WYLIE NORTHEAST SUD Amended Mutual Tower Lease with Wylie IN WITNESS WHEREOF, the parties have executed this Agreement and caused this Agreement to be effective when all the parties have signed it. The date this Agreement is signed by the last party to sign it (as indicated by the date associated with that party's signature below) will be deemed the effective date of this Agreement ("Effective Date"). WYLIE NORTHEAST SPECIAL UTILITY DISTRICT, a political subdivision of the State of Texas By Jimmy Beach, President Date: , 2020 CITY OF WYLIE, a Texas home -rule municipality By Chris Holsted, City Manager Date: , 2020 INTERLOCAL AGREEMENT BETWEEN THE CITY OF WYLIE AND WYLIE NORTHEAST SUD Amended Mutual Tower Lease with Wylie