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Item 4ICITY OF SOUTHLAKE MEMORANDUM (December 4, 2012) To: Shana Yelverton, City Manager From: Robert H. Price, P.E., Director of Public Works Subject: Resolution No. 12 -052, Approve interlocal agreement between City of Southlake and North Central Texas Council of Governments authorizing North Central Texas Council of Governments to solicit proposal on Cotton Belt passenger rail private - public initiative Action Requested: Approve Resolution No. 12 -052, an interlocal agreement between City of Southlake and North Central Texas Council of Governments authorizing North Central Texas Council of Governments to solicit proposal on Cotton Belt passenger rail private - public initiative. Background Information: In October of this year, the Executive Board of the North Central Texas Council of Governments ( NCTCOG) directed NCTCOG staff to work with Dallas Area Rapid Transit (DART), the Fort Worth Transportation Authority (The T), Denton County Transportation Authority (DCTA) and cities along the Cotton Belt Passenger Rail Corridor to establish consensus on a preferred procurement method and governance structure for implementation of the Cotton Belt Rail Project. On October 25 NCTCOG staff conducted a meeting with representatives of local governments along the Cotton Belt corridor to discuss a Joint Procurement Process that had been developed cooperatively by DART, The T, DCTA, and the North Central Texas Council of Governments ( NCTCOG) which takes advantage of the provisions of Senate Bill 1048 (SB 1048) as well as DART's and The T's authority under Texas Transportation Code Chapter 452 (TTC 452). This proposed Joint Procurement Process will enable the region to receive an unsolicited proposal for the Cotton Belt Passenger Rail Project. Under the proposed Joint Procurement Process, NCTCOG, acting as a Responsible Governmental Entity (RGE) under SB 1048 on behalf of the cities, and DART /The T through a Local Government Corporation, would jointly receive an unsolicited proposal with concurrent delivery to all affected jurisdictions along the Corridor. In order for NCTCOG to carry out these responsibilities and act as the RGE, NCTCOG must first execute an Interlocal Agreement (ILA) with one or more member governments along the corridor requesting NCTCOG to pursue a public - private partnership procurement utilizing SB 1048 for project development. NCTCOG has requested that the City Councils of the municipalities located along the Cotton Belt corridor consider the Interlocal Agreement for approval prior to the December 20, 2012, NCTCOG Executive Board meeting. Financial Considerations: The approval of Resolution 12 -052 authorizes the City Manager to request and authorize NCTCOG to develop the Cotton Belt Passenger Rail Project on its behalf as the Responsible Governmental Entity utilizing Senate Bill 1048 to procure a public - private partnership jointly with DART, The T and DCTA. Section 5.03 of the proposed agreement states that the City of Southlake does not commit any financial resources to NCTCOG under this Agreement. Strategic Link: The approval of this resolution links to the city's strategy map relative to the focus area of Partnerships. The specific corporate objectives that are met by the approval of this resolution include: Promote opportunities for partnerships and volunteer involvement and collaborate with select partners to implement service solutions. Citizen Input/ Board Review: N/A Legal Review: The Model Resolution was provided by NCTCOG and has been reviewed by the City Attorney. Alternatives: The City Council may approve Resolution No. 12 -052 or deny it Supporting Documents: Location Maps Resolution No. 12 -052 Proposed Agreement Staff Recommendation: Approve Resolution No. 12 -052, an interlocal agreement between City of Southlake and North Central Texas Council of Governments authorizing North Central Texas Council of Governments to solicit proposal on Cotton Belt passenger rail private - public initiative. Staff Contact: Robert H. Price, P.E., Public Works Director r C d C Q C L i+ i t I V �� AW E as a pw.a 41 hhbl a LM W 4o C3 • 'D IMB Wo 130 c... - kl 13 a 52 1. - u F ::L RESOLUTION No. 12 -052 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT REQUESTING NCTCOG TO PURSUE DEVELOPMENT OF THE COTTON BELT RAIL PROJECT UTILIZING SENTATE BILL 1048 ( "PUBLIC AND PRIVATE FACILITIES AND INFRASTRUCTURE ACT ") WHEREAS, the North Central Texas Council of Governments ( NCTCOG) is a Regional Planning Commission operating under Local Government Code Chapter 391; and WHEREAS, NCTCOG has been approached by a private- sector developer which has formally communicated interest in developing the Cotton Belt Passenger Rail Project; and, WHEREAS, Senate Bill 1048 ( "Public and Private Facilities and Infrastructure Act ") authorizes public - private partnerships by eligible governmental entities in the State of Texas, including Regional Planning Commissions, and establishes the framework and processes required to enter into such arrangements; and, WHEREAS, Senate Bill 1048 enables a Responsible Governmental Entity to receive solicited or unsolicited proposals, encourages competition by requiring posting of and acceptance of competing proposals for a qualifying project, calls for collaboration with affected jurisdictions in which all or part of a project is located, and permits award of interim and /or comprehensive project development agreements; and, WHEREAS, in order for NCTCOG to qualify as the Responsible Governmental Entity and assist the region in advancing development of the Cotton Belt Passenger Rail Project agreements with member governments along the corridor statutorily authorized to develop passenger rail projects is necessary; and, WHEREAS, City of Southlake supports innovative approaches to infrastructure delivery and desires to contract NCTCOG to utilize Senate Bill 1048 to procure a public - private partnership to develop the Cotton Belt Passenger Rail Project, in whole or in part, on its behalf; and, WHEREAS, this innovative public - private partnership approach to develop the Cotton Belt Passenger Rail Project, if proven successful, could provide a model for development of future high - priority passenger rail corridors in the region; and, WHEREAS, NCTCOG, Dallas Area Rapid Transit (DART), Fort Worth Transportation Authority (The T), and Denton County Transportation Authority (DCTA) have developed a joint procurement process under Senate Bill 1048 and Texas Transportation Code Chapter 452 to develop the Cotton Belt Passenger Rail Project which involves city representation in the evaluation process. NOW, THEREFORE, BE IT HEREBY RESOLVED THAT: Section 1 . City of Southlake requests and authorizes NCTCOG to develop the Cotton Belt Passenger Rail Project on its behalf as the Responsible Governmental Entity utilizing Senate Bill 1048 to procure a public - private partnership jointly with DART, The T and DCTA. RESOLUTION No. 12 -052 Section 2. This Resolution shall be transmitted to NCTCOG and all affected jurisdictions along the corridor. Section 3. The City Manager or designee is authorized to execute agreements to effectuate this Resolution in the name of City of Southlake. Resolved. That this Resolution shall take effect upon its adoption, and it is so ADOPTED this _ day of , 2012. John Terrell Mayor, City of Southlake ATTEST: Alicia Richardson, City Secretary INTERLOCAL COOPERATIVE AGREEMENT Between CITY OF SOUTHLAKE, TEXAS And THE NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS For PROCUREMENT OF PUBLIC - PRIVATE PARTNERSHIP TO DEVELOP THE COTTON BELT PASSENGER RAIL PROJECT This AGREEMENT (the "Agreement ") is by and between CITY OF SOUTHLAKE, TEXAS ( "CITY OF SOUTHLAKE"), a home rule municipality located in COUNTY, Texas; and the North Central Texas Council of Governments ( "NCTCOG "), the Regional Planning Commission for the 16- County North Central Texas Region created and existing under Chapter 391 of the Texas City of Southlake Code, acting by and through their duly authorized representatives. WHEREAS, the Cotton Belt Passenger Rail Project is located wholly or partially within the territory of CITY OF SOUTHLAKE; and, WHEREAS, CITY OF SOUTHLAKE is a NCTCOG member government and is interested in development of the Cotton Belt Passenger Rail Project; and, WHEREAS, CITY OF SOUTHLAKE possesses certain statutory powers to develop or operate passenger rail projects; and, WHEREAS, NCTCOG may contract with member governments to perform services; and, WHEREAS, CITY OF SOUTHLAKE desires to contract NCTCOG to utilize Senate Bill 1048 as the Responsible Governmental Entity to procure a public - private partnership to develop the Cotton Belt Passenger Rail Project, in whole or in part, on its behalf and jointly with a City of Southlake Corporation created by the transit authorities; and, WHEREAS, this Agreement was authorized by Resolution of the CITY OF SOUTHLAKE City Council at its meeting on December 4th, 2012; and, WHEREAS, the Interlocal Cooperation Act, Chapter 791 of the Texas Government Code provides authority for CITY OF SOUTHLAKE and NCTCOG to enter into this agreement for the provision of governmental functions and services of mutual interest. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the Parties agree as follows: 1.00 Definitions 1.01 Cotton Belt Passenger Rail Project. "Cotton Belt Passenger Rail Project" refers to the approximately 62 -mile passenger rail project, or any subsection thereof, from southwest Fort Worth to Plano. 1.02 Senate Bill 1048. "Senate Bill 1048" refers to the Public and Private Facilities and Infrastructure Act passed by the 2011 Texas Legislature and effective September 1, 2011. 1.03 Responsible Governmental Entity. "Responsible Governmental Entity" means a governmental entity that has the power to develop or operate an applicable qualifying project as defined in Senate Bill 1048. 1.04 Local Government Corporation. "Local Government Corporation (LGC)" means a corporation incorporated to act on behalf of one or more transit authorities as provided by Subchapter D of Texas Transportation Code Chapter 431. 1.05 Transit Authorities. "Transit Authorities" collectively refers to Dallas Area Rapid Transit (DART), the Fort Worth Transportation Authority (The T) and the Denton County Transportation Authority (DCTA). 2.00 Purpose. The purpose of this Agreement is to request and authorize NCTCOG to utilize Senate Bill 1048 and act as the Responsible Governmental Entity ( "RGE ") to procure, on behalf of CITY OF SOUTHLAKE and similarly with other affected member governments, a public - private partnership to develop the Cotton Belt Passenger Rail Project. The procurement will be jointly undertaken by NCTCOG, authorized and representing CITY OF SOUTHLAKE as the RGE, and Local Government Corporation (LGC), as lead for the transit authorities. 3.00 Term and Termination 3.01 Initial Term. The Initial Term of this agreement shall begin on the date executed by the last of the Parties and shall end on December 31, 2014. 3.02 Termination. This Agreement may be terminated by either Party one hundred eighty (180) days after written notice of termination is delivered by the Party desiring to terminate the Agreement to the other Party at the address provided herein. 4.00 NCTCOG Duties 4.01 Procurement Role. NCTCOG agrees to initiate statutorily required actions, upon execution of an appropriate number of agreements with member governments along the rail corridor, to become the Responsible Governmental Entity under Senate Bill 1048 for development of the Cotton Belt Passenger Rail Project. Once effective, NCTCOG will initiate procurement of a public - private partnership jointly with LGC, including receipt of solicited or unsolicited proposals, posting of and acceptance of competing proposals, proposal evaluation, and all other actions up to and including execution of an Joint Interim Award with the selected private- sector proposer. 4.02 Joint Procurement Process. Described generally: a. NCTCOG and LGC will jointly receive any unsolicited proposal that may be submitted for the Cotton Belt Passenger Rail Project with concurrent delivery to all affected jurisdictions along the corridor by the private sector proposer as required by Senate Bill 1048. b. NCTCOG and LGC will adopt common guidelines and evaluation criteria to govern the Joint Procurement Process. c. LGC will take the lead on publication of a joint RFP and subsequent receipt of proposals. d. Proposals will be evaluated through a Joint Evaluation Committee, consisting of representatives from DART, NCTCOG as the RGE, cities and transit authorities. e. LGC will take the lead on the technical evaluation of any proposals. f. NCTCOG, as the RGE, will take the lead on the financial evaluation of any proposals. g. LGC, under Texas Transportation Code Chapter 452, and NCTCOG, as the RGE under Senate Bill 1048, will make a Joint Interim Award following approval by their respective governing bodies and considering the recommendations of the Joint Evaluation Committee. NCTCOG will coordinate with all affected member governments when carrying out these functions. 4.03 Limitations. NCTCOG will not execute a Comprehensive Award, as that term is defined in Senate Bill 1048, with the selected proposer. The project governance structure, which is yet to be determined, will execute any final Comprehensive Award. 5.00 CITY OF SOUTHLAKE Duties 5.01 Authorization. CITY OF SOUTHLAKE covenants that it possesses statutory powers to develop passenger rail projects in its jurisdiction and authorizes NCTCOG, acting on its behalf as the Responsible Governmental Entity, to develop the Cotton Belt Passenger Rail Project through procurement of a public - private partnership utilizing Senate Bill 1048. This includes all actions and processes contemplated in Senate Bill 1048 up to and including execution of an Interim Award. 5.02 Project Governance. CITY OF SOUTHLAKE does not indicate favor or commit to any project governance structure under this Agreement. CITY OF SOUTHLAKE agrees, however, to participate in discussions and understands collaboration among affected corridor jurisdictions and transit authorities is needed to reach consensus on governance and representation. Support of any governance structure is subject to future approval by the CITY OF SOUTHLAKE. 5.03 No Financial Commitment. CITY OF SOUTHLAKE does not commit any financial resources to NCTCOG under this Agreement. 5.04 No Equity Position. CITY OF SOUTHLAKE does not indicate support of or commit to any strategy or position addressing equity among jurisdictions along the corridor as part of this Agreement. 5.05 Project Parameters. CITY OF SOUTHLAKE does not commit to any project design, alignment or station locations under this Agreement. 5.06 No Fourth (4 Transit Authority. NCTCOG's role as the Responsible Governmental Entity under this Agreement is expressly limited to the Cotton Belt Passenger Rail Project and does not constitute, nor does CITY OF SOUTHLAKE or NCTCOG support, creation of a fourth (4t") transit authority in the region. 6.00 Indemnification. CITY OF SOUTHLAKE and NCTCOG agree that each Party is responsible for its individual acts and deeds as well as the acts and deeds of their contractors, employees, representatives and agents. 7.00 Force Majeure. Force Majeure means any circumstance that is reasonably beyond the control of the Party obligated or permitted under this Agreement, and includes, but is not limited to reason of war, civil commotion, act of God, governmental restriction, regulation or interference, fire, explosion, hurricane, flood, failure of transportation, court injunction, or the action or failure to act of any person or entity that is not a Party to this Agreement. It is expressly understood and agreed by the Parties that if the performance of any duty or obligation under this Agreement is delayed by Force Majeure, regardless of whether any such circumstance is similar to any of those enumerated in this paragraph, the Party so obligated or permitted shall be excused from doing or performing the same during such period of delay or, in the alternative, the Parties may agree in writing to the performance of a substantially equivalent substitute. 8.00 Contractual Relationship. It is understood and agreed that the relationship described in this Agreement between the Parties is contractual in nature and is not to be construed to create a partnership of joint venture or agency relationship between the Parties. Nor shall any Party be liable for any debts incurred by the other Party in the conduct of such other Party's business or functions. 9.00 Miscellaneous Provisions 9.01 Compliance with Regulations. During the performance of this Agreement, each Party, for itself, its assignees, and successors agrees to comply with all applicable local, state, and federal regulations. 9.02 Captions. The captions, headings, and arrangements used in this Agreement are for convenience only and shall not in any way affect, limit, amplify, or modify its terms and provisions. 9.03 Disputes. CITY OF SOUTHLAKE and NCTCOG shall negotiate in good faith toward resolving any disputes that arise under this Agreement. 9.04 Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Texas. 9.05 Notice. Notices to either Party by the other Party required under this Agreement shall be in writing and delivered to the addresses shown below. A copy shall concurrently be provided to the Contact Person, provided on the Agreement Cover Sheet, of the Party receiving notice. CITY OF SOUTHLAKE Shana Yelverton, City Manager 1400 Main Street Southlake, Texas 76092 NCTCOG R. Michael Eastland, Executive Director North Central Texas Council of Governments 616 Six Flags Drive Arlington, Texas 76011 The above contact information may be modified without requiring an amendment to the Agreement. 9.06 Interest of Public Officials. No member, officer, or employee of the public body or of a local public body during his tenure or for one year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof. 9.07 Assignment. Neither Party may assign this Agreement in whole or in part, without first obtaining the written consent of the other Party. 9.08 Number and Gender. Whenever used herein, unless the context otherwise provides, the singular number shall include the plural, the plural the singular, and the use of any gender shall include all other genders. 9.09 Severability. In the event anyone or more of the provisions contained in this Agreement shall be for any reason held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision(s) hereof, and this Agreement shall be revised so as to cure such invalid, illegal, or unenforceable provision(s) to carry out as near as possible the original intent of the Parties. 9.10 Merger and Amendment. This instrument constitutes the entire agreement of the Parties with respect to the matters contemplated herein and supersedes all prior understandings and agreements regarding such subject matter. This Agreement may be modified or amended only in writing, signed by all Parties hereto. 9.11 Effective Date. This Agreement shall be effective on the date this Agreement is signed by the last of those required to sign this Agreement. 9.12 Nondiscrimination. In its performance of this Agreement, CITY OF SOUTHLAKE and NCTCOG each warrants that it shall not discriminate against any person on account of race, color, sex, religious creed, age, disability, ethnic or national origin, or veteran status. 9.13 No Waiver. Neither Party shall be deemed by any act or omission to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving Party, and then only to the extent specifically set forth in such writing. A waiver with reference to one event shall not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event. EXECUTED by the Parties in duplicate originals. CITY OF SOUTHLAKE NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS Shana K. Yelverton City Manager R. Michael Eastland Executive Director Date: Date: