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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