HomeMy WebLinkAboutRes 2018-05-452 MUA Brush Truck UnitCITY OF ANNA, TEXAS
RESOLUTION NO. "' 9- �j' 45 Z-
A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING AN AGREEMENT WITH
THE CITY OF MELISSA FOR USE OF BRUSH TRUCK UNIT
WHEREAS, the City Council ("Council") of the City of Anna, Texas ("Anna") currently has
limited storage capacity for its brush truck unit (the "Brush Unit") operated by the Anna Fire
Department; and
WHEREAS, the City of Melissa has the capacity to store the Brush Unit and has the desire to
use the Brush Unit for its own operations in accordance with the terms of the Brush Truck Unit
Use Agreement (the "Agreement") attached hereto as Exhibit A; and
WHEREAS, under the Agreement Anna will retain the right to priority use of the Brush Unit for
its own operations at all times and may terminate the Agreement upon 30-days' notice; and
WHEREAS, the Council finds and determines that the Agreement furthers the City's public
purpose of protecting the health, safety and welfare of Anna's citizens and the general public;
and
WHEREAS, the Council finds that the Agreement provides sufficient safeguards to assure that
all value provided by the City under the Agreement will be used solely for a public purpose;
and
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA,
TEXAS THAT:
Section 1. Recitals Incorporated
The recitals set forth above are incorporated herein for all purposes as if set forth in full.
Section 2. Approval of Agreement
The Council hereby approves the Agreement,, attached hereto as Exhibit A, incorporated
herein for all purposes, and authorizes the City Manager to execute same on its behalf.
PASSED AND APPROVED by the City Council of the City of Anna, Texas on this day of
Lyon , 2018.
APPROVED: ATTEST:
Nate Pike, Mayor * : Carrie L. Smith, City Secretary
r s
/ •• ,
CITY OF ANNA, TEXAS RESOLUTION NO. PAGE 1 OF 1
BRUSH TRUCK UNIT USE AGREEMENT
THIS BRUSH TRUCK UNIT USE AGREEMENT ("Agreement") is entered into by and
between the City of Melissa, Texas, a home -rule municipality ("Melissa'), and the City of Anna,
Texas, a home -rule municipality ("Anna"). Melissa and Anna at times are referred to herein as a
"party" or collectively as the "parties."
WHEREAS, Melissa and Anna entered into that certain Mutual Aid Agreement dated
("Aid Agreement"), the terms of which are incorporated herein by reference,
providing in part for mutual aid for the protection of life and property in the event of an
emergency, disaster or civil emergency in either jurisdiction; and
WHEREAS, Anna owns a brush truck described as Brush 902 with a VIN number of
1FDWF37F43EA81947 ("Brush Truck"), which is used in responding to fire emergencies,
disasters and civil emergencies, including in response to incidents covered under the parties' Aid
Agreement; and
WHEREAS, Anna houses the Brush Truck at 305 S. Powell Parkway, but because of an
ongoing construction project, Anna has asked Melissa to house the Blush Truck at a Melissa Fire
Station for a temporary period of time; and
WHEREAS, Melissa has agreed to house the Brush Truck at its facility located at 1933
E. Melissa Road ("Facility'), and the parties have agreed that the Brush Truck will be available
to Melissa for use on the terms and conditions of this Agreement; and
WHEREAS, the parties have determined that their participation in this Agreement serves
a public purpose; and
WHEREAS, the parties have determined that they will receive a return benefit for their
participation in this Agreement; and
WHEREAS, the parties are authorized by law to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth
in this Agreement, and other good and valuable consideration, the parties agree as follows:
1. Term,• Termination. The term of this Agreement shall commence on the Effective Date
of this Agreement and end on May 31, 2019, unless terminated by either party as
provided in this Agreement. Either party is entitled to terminate this Agreement for any
reason or for no reason by giving the other party at least thirty (30) days' prior written
notice of the termination date. Notwithstanding any other term of this Agreement, in the
event that Anna is unable to deploy its alternate equipment serving the same functions as
the Brush Truck, Anna reserves the right to immediately terminate this Agreement and
take possession of the Brush Truck to be placed into service at a location of Anna's
choice.
2. Housing of Brush Truck. During the term of this Agreement, Melissa shall house the
Brush Truck at the Facility. Melissa shall not, while the Brush Truck is housed at the
Bruch Truck Unit Use Agreement Page 1 of 6
2432969
Facility, suffer, allow or permit the Brush Truck to be damaged and shall repair, or
compensate Anna for the reasonable and necessary cost of the repair of, all damage to the
Brush Truck resulting from use of the Brush Truck by Melissa, excluding reasonable
wear and tear. Notwithstanding anything to the contrary herein, if the Brush Truck is
damaged or destroyed by fire or any other casualty while the Brush Truck is housed at the
Facility, Melissa shall have no obligation to repair or restore the Brush Truck to the
condition it was in before the casualty or to reimburse Anna for the loss of or damage to
the Brush Truck, unless said loss or damage was proximately caused by negligent or
tortious acts or omissions of Melissa.
3. Permitted Use by Melissa. During the term of this Agreement, Melissa is entitled to use
the Brush Truck for all purposes for which the Brush Truck is designed and equipped and
all other reasonable uses without any obligation to separately compensate Anna for such
uses. The parties shall remove all debris and litter from the Brush Truck resulting from
their respective use of the Brush Truck. The parties shall bear all fuel costs for the Brush
Truck resulting from their respective uses of the Brush Truck. Anna shall have priority
use of the Brush Truck in all instances where the parties desire to use it at the same time.
Melissa and Anna agree to reasonably cooperate to schedule the use of the Brush Truck
in a manner, consistent with this Agreement, that provides the greatest benefit to the
citizens of Melissa and Anna.
4. Maintenance by Anna. Except as expressly provided in Section 2, Anna shall, at its own
expense and risk, repair and maintain the Brush Truck in a safe and operable condition.
In the event Anna fails to perform its obligation to repair or maintain as set forth herein
after written notice from Melissa of the need for such repair or maintenance and the
passage of a reasonable amount of time for performance after such notice, Melissa may
make such repairs or perform such maintenance, or cause such repairs to be made or
maintenance to be performed at its own expense. Written notice from Melissa shall state
the intended repair or maintenance, the estimated cost of labor and materials and, if
Melissa intends to make such repair or perform such maintenance, the date Melissa's
work will begin. Unless otherwise agreed by the parties, Anna shall reimburse Melissa
for the expense of the repair or maintenance by paying for such expense within thirty (30)
days after receiving notice of completion of the work from Melissa, or at the termination
of this Agreement, whichever occurs first.
5. Liability. Melissa shall have no liability for the actions of, or failure to act by, any
officer, employee, subcontractor, agent or assign of Anna, and Anna shall have no
liability for the actions of, or failure to act by, any officer, employee, subcontractor, agent
or assign of Melissa. As between Melissa and Anna: (a) Melissa shall be solely
responsible for and with respect to any and all claims or causes of action arising out of or
with respect to any use of the Brush Truck by Melissa; and (b) Anna shall be solely
responsible for and with respect to any and all claims or causes of action arising out of or
with respect to any use of the Brush Truck by Anna. This section shall not be construed
as creating any right, cause of action or claim of waiver or estoppel for or on behalf of
any third party.
6. Insurance. During the term of this Agreement, Anna shall, at its sole expense, obtain and
maintain the following insurance with reputable insurance companies authorized to
Bruch Truck Unit Use Agreement Page 2 of 6
2432969
transact business in the State of Texas, protecting Anna and Melissa: (i) workers'
compensation insurance providing statutory coverage under the laws of the State of Texas
for all persons employed by Anna in connection with its use of the Brush Thick; (ii)
employer's liability insurance with limits of liability for injury by accident or disease of
$1,000,000 for all persons employed by Anna in connection with its use of the Brush
Truck; (iii) commercial general liability insurance, with a broad form commercial
liability endorsement (including contractual liability insurance covering its indemnity
obligations hereunder), written on an "occurrence basis" for death, bodily injury and
property damage occurring upon, in or about or arising out of or connected with the
condition or use of the Brush Truck, with coverage limits not less than $2,000,000
combined single limit; and (v) automobile insurance with limits of liability not less than
$1,000,000 per accident. On the Effective Date of the Agreement, or as soon as
practicable thereafter, Anna shall deliver to Melissa a certificate of insurance and all
associated endorsements evidencing such insurance coverage, and shall thereafter deliver
certificates of insurance and all associated endorsements showing renewal or replacement
of such coverage to Melissa not less than thirty (30) days prior to the expiration of the
insurance coverage. Each policy described in this Section shall name Melissa as an
additional insured.
7. Breach; Remedies. In the event of any breach by a party of any covenant or term under
this Agreement, the nonbreaching party shall have the right to deliver to the breaching
party a written notice specifying such breach, and unless within thirty (30) days from and
after the date of delivery of such notice the breaching party shall have commenced to
remove or to cure such breach or occurrence and shall be proceeding with reasonable
diligence to completely remove or cure such breach or occurrence (provided such breach
or occurrence must be cured within sixty (60) days after such notice), then the
nonbreaching party shall have all remedies available to it at law or in equity. All
remedies of a party under this Agreement shall be cumulative, and the failure to assert
any remedy or the granting of any waiver of any event of default shall not be deemed to
be a waiver of any subsequent event of default.
8. Notice. Any notice provided or permitted to be given under this Agreement must be in
writing and may be served by depositing same in the United States Mail, addressed to the
party to be notified, postage pre -paid and registered or certified with return receipt
requested; by facsimile; by electronic mail, with documentation evidencing the
addressee's receipt thereof; or by delivering the same in person to such party via hand -
delivery service, or any courier service that provides a return receipt showing the date of
actual delivery of same to the addressee thereof. Notice given in accordance herewith
shall be effective upon receipt at the address of the addressee. For purposes of
notification, the addresses of the parties shall be as follows:
If to Melissa, addressed to it at:
City of Melissa
Attn: Jason Little, City Manager
3411 Barker Avenue
Melissa, Texas 75454
Telephone: (972) 838-2520
Bruch Truck Unit Use Agreement Page 3 of 6
2432969
Facsimile: (972) 837-2452
Email: JLittleacityofinelissa.com
With a copy to:
Abernathy, Roeder, Boyd & Hullett, P.C.
Attn: Ryan D. Pittman
1700 Redbud Blvd., Suite 300
McKinney, Texas 75069
Telephone: (214) 544-4000
Facsimile: (214) 544-4054
Email: rpittman@abernathy-law.com
If to Anna, addressed to it at:
City of Anna
Attn: City Manager
111 N. Powell Parkway
P.O. Box 776
Anna, Texas 45409-0776
Email:
With a copy to:
Wolfe, Tidwell & McCoy LLP
ATTN: Clark McCoy
2591 N. Dallas Pkwy, Suite 300
Frisco, TX 75034
Telephone: (972) 712-3530
Facsimile: (972) 712-3540
Email: cmccoy(a,wtmlaw.net
9. Independent Contractor. Nothing contained herein shall be construed as creating the
relationship of principal and agent, partners, joint ventures or any other similar such
relationship between the parties.
10. Parties Bound. This Agreement shall be binding upon, and inure to the benefit of, the
parties to this Agreement and their respective heirs, executors, administrators, legal
representatives, successors, and assigns when permitted by this Agreement.
11. Governing�LawNenue. The laws of the State of Texas shall govern the interpretation,
validity, performance and enforcement of this Agreement, without regard to conflict of
law principles. This Agreement is performable in Collin County, Texas, and the exclusive
venue for any action arising out of this Agreement shall be a court of appropriate
jurisdiction in Collin County, Texas.
12. Legal Construction. In case any one or more of the provisions contained in this
Agreement shall for any reason be held by a court of competent jurisdiction to be invalid,
Bruch Truck Unit Use Agreement Page 4 of 6
2432969
illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision of the Agreement, and this Agreement shall be
construed as if the invalid, illegal, or unenforceable provision had never been included in
the Agreement.
13. Prior Agreements Superseded. This Agreement constitutes the sole and only agreement
of the parties to the Agreement and supersedes any prior understandings or written or oral
agreements between the parties respecting the subject matter of this Agreement.
14. 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.
15. Immunity. The parties acknowledge and agree that, in executing and performing this
Agreement, the parties have not waived, nor shall be deemed to have waived, any defense
or immunity, including governmental, sovereign and official immunity, that would
otherwise be available to them 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.
16. Authority to Execute. The individuals executing this Agreement on behalf of the
respective parties below represent to each 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 Effective Date (hereinafter
defined).
17. Multiple Counterparts. This Agreement may be executed in a number of identical
counterparts, each of which shall be deemed an original for all purposes. An electronic
mail and/or facsimile signature will also be deemed to constitute an original if properly
executed and delivered to the other party.
[Signature page follows.]
Bruch Truck Unit Use Agreement Page 5 of 6
2432969
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").
CITY OF MELISSA, TEXAS,
a home -rule municipality
_:
Jason Little, City Manager
Date executed:
ATTEST:
Linda Bannister, City Secretary
CITY OF ANNA, TEXAS
a home -rule municipality
B _
y:
Maurice Schwanke, Interim City Manager
Date executed: --Q - 5 /0
ATTEST:
Carrie Smith, City Secretary
Bruch Truck Unit Use Agreement Page 6 of 6
2432969