2003-206FILE REFERENCE FORM 2003-206
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Amendment to Agreement - Ordinance No. 2005-041 02/01/05 J R
ORDINANCE N t 0 ° !p
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE
MAYOR TO EXECUTE AN INTERLOCAL COOPERATION AGREEMENT BY
AND BETWEEN THE CITY OF DENTON, TEXAS AND THE UNIVERSITY OF
NORTH TEXAS PERTAINING TO THE USE OF AND UPGRADE TO DENIA
PARK; AND PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The Mayor, or in her absence the Mayor Pro Tem, is hereby
authorized to execute, on behalf of the City, an Interlocal Cooperation Agreement
between the City of Denton, Texas and the University of North Texas pertaining to the
use of and upgrade to Denia Park, substantially in accordance with the Interlocal
Cooperation Agreement which is attached hereto and incorporated by reference herein.
SECTION 2. This ordinance shall become effective immediately upon its
passage and approval.
PASSED AND APPROVED this theday of 2003.
che.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROO'P, CITY ATT(
By:
INTERLOCAL COOPERATION AGREEMENT
THIS AGREEMENT is made and entered into by and between the CITY OF DENTON,
TEXAS, a Texas Municipal Corporation (hereinafter the "CITY") and THE UNIVERSITY OF
NORTH TEXAS, Denton, Texas (hereinafter "UNT"), each organized and existing under the
laws of the State of Texas, each acting by and through and under the authority of their respective
governing bodies and officials in accordance with §791.011(d)(1) of the Texas Government
Code; and '
WHEREAS, the CITY is a local governmental entity within the provisions of
§791.011(a) of the Texas Government Code; and UNT may enter into an interlocal cooperation
agreement pursuant to the authority contained in §771.002(1)(B) and §791.011(b)(1) of the
Texas Government Code; and the CITY and UNT are governmental entities organized under the
laws of the State of Texas, both of whom have the authority to perform the services set forth in
this Agreement, individually, and who mutually desire to enter into an interlocal cooperation
agreement, as provided for in Chapter 791 of the Texas Government Code; and
WHEREAS, the CITY and UNT have entered into this Agreement to provide for UNT's
use of two softball fields at Denia Park in exchange for UNT's installation and construction of
certain upgrades to the park; and
WHEREAS, there is a valid governmental purpose served by this Agreement by the
CITY and UNT to provide for the use of and upgrade to facilities at Denia Park; and
WHEREAS, the CITY and UNT agree that any compensation made in connection with
governmental functions provided for by this Agreement shall be made from current revenues
available to the paying party in accordance with the provisions of §791.011(d)(3) of the Texas
Government Code; that the purpose, terms, rights, and duties of the respective contracting parties
shall be stated in the Agreement in accordance with the provisions of §791.011(d)(2); and that
any compensation made pursuant to this Agreement fairly compensate the performing party for
the services or functions performed, in accordance with the provisions of §791.011(e) of the
Texas Government Code; and
NOW THEREFORE, the CITY and UNT, for and in consideration of the premises and
the mutual covenants set forth in this Interlocal Cooperation Agreement, and pursuant to the
authority granted by the governing bodies of each of the parties hereto, in accordance with
§791.011(d)(1) of the Texas Government Code, do hereby agree as follows:
ARTICLE I
INCORPORATION OF PREAMBLES
All matters and recitations stated in the Preamble to this Agreement are true and correct
and are hereby incorporated by reference into the provisions of this Agreement for all purposes.
ARTICLE II
PURPOSE OF AGREEMENT
The purpose of this Agreement, is as designated in the preamble, to evidence the
agreement of the CITY and UNT to provide for the use and upgrade of facilities at Denia Park
and other related services for the term of the Agreement.
ARTICLE III
TERM OF AGREEMENT
This Agreement shall be effective as of the Effective Date as provided below and shall
continue in force and effect through December 31, 2004. The parties may each elect to terminate
this Agreement, as permitted under the provisions of Article IV hereunder.
ARTICLE IV
TERMINATION OF AGREEMENT
This Agreement terminates upon the first to occur of the following events:
A. By mutual written agreement of the CITY and UNT; or
B. December 31, 2004; or
C. By either party, if a party defaults or breaches any of the terms or conditions of this
Agreement and such default or breach is not cured within sixty (60) days after written notice by
the non-defaulting party to the defaulting party.
ARTICLE V
UNDERTAKING OF THE CITY
The undertaking of the CITY for the term of this Agreement, is as follows:
CITY shall allow UNT to use two softball fields at Denia Park more particularly
described in Exhibit "A" attached hereto and made a part hereof by reference (the `Ball Fields").
UNT's use of the Ball Fields is non-exclusive except that its use for its woman's softball
program shall have priority over all other uses. UNT and the CITY shall prepare a schedule as to
dates and times of such priority use, subject to the following criteria:
1. Practice times and game schedules will be coordinated between UNT Head Softball
Coach (the "Softball Coach") and the City's Park and Recreation Director, or his designee (the
"City Representative").
2. Game schedules will be provided to the City Representative at least 6 months in advance
and approved by the City Representative no later than 5 months in advance. Any changes in
game schedules must be submitted to the City Representative within a reasonable time prior to
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the scheduled game. Tournament dates will be provided to the City Representative at least 6
months in advance and approved by the City Representative no later than 5 months in advance.
Any changes in tournament dates must be submitted to the City Representative within a
reasonable time prior to the scheduled date.
3. UNT summer camp will be scheduled between the Softball Coach and the City
Representative
ARTICLE VI
UNDERTAKING OF UNT
The undertaking of UNT for the term of this Agreement, is as follows:
A. UNT agrees to construct or install the following upgrades and amenities to the Ball Fields
(the "Upgrades"):
1. Resurface the clay infields; and
2. Level the outfields and replace sod where necessary; and
3. Construct two bullpens at locations agreed upon by UNT and CITY; and
4. Move fence or fences in as necessary and install green wind screens if no signage
is used; and
5. Make improvements to irrigation, watering and drainage systems when
resurfacing the infields; and
6. Install new foul poles, fence yardage signs, and other necessary signage; and
7. Install additional bleachers; and
8. Install two scoreboards.
B. Should UNT have additional funds available, it may install or construct the following
additional upgrades and amenities ("Additional Upgrades"):
1. Construct a press box; and
2. Install additional lighting.
C. UNT will not charge admission for regular season games. UNT may charge admission to
tournament games except that all Denia girl's softball league participants will not be charged
admission. UNT will supervise and control the tournament games and associated concessions,
with 25% of all concession profits being paid to the CITY, which may in its discretion be
provided to the girl's softball league. UNT's right to operate concessions is exclusive of the
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right to use the permanent concession stand at the complex. UNT's use of the concession stand
will be subject and subordinate to its use by the City's agreement with the girls softball
association. All Denia girl's softball league participants will be given a 10% discount for UNT
summer camp. In addition, UNT will provide to the CITY two scholarships for a day camp of
the CITY's choice to be awarded at the CITY's discretion.
D. UNT agrees to cooperate and provide information to the CITY upon request by the CITY
regarding the Upgrade activities described above. Prior to performing any work UNT will
submit construction or installation plans to the CITY for CITY approval.
E. UNT agrees to complete the Upgrades by September 30, 2003.
ARTICLE VII
FORCE MAJEURE
Events of Force Majeure shall mean any contingency or cause beyond the reasonable
control of a party including, without limitation, acts of God or the public enemy, war, riot, civil
commotion, insurrection, government or de facto government action (unless caused by acts or
omission of the party), fires, explosions, rain or other weather delays, floods, strikes, slowdowns
or work stoppages.
ARTICLE VIII
HOLD HARMLESS
Only to the extent allowed by the Constitution and statutes of the State of Texas, and
without waiving any immunity or limitation as to liability, UNT agrees to and shall indemnify
and hold harmless the CITY, its officials, officers, agents, employees, or attorneys from and
against any and all claims, losses, damages, causes of action, suits, and liabilities of every kind,
including all expenses of litigation, court costs, and attorney's fees, for injury or death of any,
person, or for damages to any property; real, personal, or intellectual, arising out of or in
connection with the subject of this Agreement, where the injury or death or damage is caused by
the negligence of UNT, it's officials, officers, agents, employees, or attorneys, except that UNT
assumes no liability for the sole negligent acts of CITY, its officials, officers, agents, employees,
or attorneys.
Only to the extent allowed by the Constitution and statues of the State of Texas, and
without waiving any immunity or limitation to liability, the CITY agrees to and shall indemnify
and hold harmless UNT, its officials, officers, agents, employees, or attorneys from and against
any and all claims, losses, damages, causes of action, suits, and liabilities of every kind,
including all expenses of litigation, court costs, and attorney's fees, for injury or death of any
person, or for damages to any property; real, personal, or intellectual, arising out of or in
connection with the subject of the Agreement, where the injury or death or damage is caused by
the negligence of CITY, its officials, officers, agents, employees, or attorneys; except that the
CITY assumes no liability for the sole negligent acts of UNT, its officials, officers, agents,
employees, or attorneys.
Page 4
ARTICLE IX
GOOD FAITH NEGOTIATION AND DISPUTE RESOLUTION
If other needs or requests arise that are related to this Agreement that are not specifically
set forth herein, the Softball Coach and the City Representative shall meet to find all reasonable
solutions to address such needs or requests. Chapter 2260 of the Texas Government Code
establishes a dispute resolution process for contracts involving goods, services and certain types
of projects. The parties must use the statutory dispute resolution process to attempt to resolve
disputes arising under this Agreement.
ARTICLE X
ASSIGNABILITY/CONSENT
Except as otherwise provided herein, or except as may be hereafter determined by the
parties, no party to this Agreement may sell, assign, or transfer its interest in this Agreement, or
any of its right, duties, or obligations hereunder, without the prior written consent of the other
party. However, whenever the consent or the approval of a party is required herein, such party
shall not unreasonably withhold, delay, or deny such consent or approval.
ARTICLE XI
NOTICE
Any notice given by one party to the other in connection with this Agreement shall be in
writing and shall be by personal delivery; or shall be sent by registered mail or certified mail; or
shall be sent by U.S. Mail, return receipt request, postage prepaid; or by facsimile to:
CITY: Parks and Recreation Director
City of Denton, Texas
Civic Center
321 E. McKinney
Denton, Texas 76201
Fax No. 940.349.8384
UNT: UNT Athletic Director
University of North Texas
P.O. Box 311397
Denton, Texas 76203
Fax No. 940.565.3470
Notice shall be deemed to have been received on the date of receipt as shown on the
return receipt or other evidence of receipt.
Page 5
ARTICLE XH
MODIFICATION
No waiver or modification of this Agreement or of any covenant, condition, limitation
herein contained shall be valid unless in writing and duly executed by the party to be charged
therewith. No evidence of any waiver or modification shall be offered or received in evidence in
any proceeding arising between the parties hereto out of or affecting this Agreement, or the
rights or obligations of the parties hereunder, unless such waiver or modification is in writing,
duly executed. The parties further agree that the provisions of this Article will not be waived
unless as herein set forth.
ARTICLE XIH
SAVINGS/SEVERABILTTY
In the event that any one or more of the provisions hereof contained in this Agreement
shall for any reason beheld to be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not effect the other provisions, and the Agreement shall be
constructed as if such invalid, illegal, or unenforceable provision had never been contained in
this Agreement.
ARTICLE XIV
GOVERNING LAW AND VENUE
This Agreement shall be construed under and governed by, and in accordance with the
laws of the State of Texas, and all obligations of the parties hereto, created by this Agreement are.
performable in Denton County, Texas. Venue of any suit or cause of action under this
Agreement shall lie exclusively in Denton County, Texas.
ARTICLE XV
ENTIRE AGREEMENT
This Agreement and any exhibits which may be attached hereto, constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof, and supersedes any
prior understandings or written or oral agreements between the parties with respect to the subject
matter of this Agreement. No amendment, modification, cancellation or alteration of the terms
of this Agreement shall be binding on any party hereto unless the same is in writing, dated
subsequent to the date hereof, and is duly authorized and executed by the parties hereto.
ARTICLE XVI
WAIVER OF TERMS AND CONDITIONS
The failure of either party to enforce or insist upon compliance with any of the terms or
conditions of this Agreement shall not constitute a general waiver or relinquishment of any such
terms or conditions, but the same shall be and remain at all times in full force and effect.
Page 6
ARTICLE XVII
AUTHORITY OF PARTIES
This Agreement is made by and entered into by the duly authorized officials of each
respective governmental entity.
ARTICLE XVIII
CAPTIONS
The captions contained in this Agreement are for informational purposes only and shall
not in any way affect the substantive terms or conditions of this Agreement.
ARTICLE XIX
COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, and constitute one and the same instrument.
IN WrrNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be executed
by its duly-authorized and empowered Mayor; and the University of North Texas has caused this
Agr ment to ex ted by its du
ly-authorized and empowered Officer to be effective as of the
44 day y of 2003 (the "Effective Date").
CITY OF DENTON, TEXAS
By: _
EULINE BROCK, MAYOR
ATTEST:
SECRETARY
APPROVEDIAS TO LEGAL FORM:
HERBERT L. P Y, CITY
By:
Page 7
ATTORNEY
THE UNIVERSITY OF NORTH TEXAS
By:&"OU ,l.~-r.
Phillip Di 1
VP Finance & Business Affairs
ATTEST: ~j
By: Ida,
V~ f
APPROVED AS TO LEGAL FORM:
CHONG H. CHOE, ASSISTANT GENERAL COUNSEL
By:
Page 8
Exhibit A
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