2003-218ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON APPROVING A
LEASE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND THE DENTON
SOCCER ASSOCIATION PERTAINING TO CONSTRUCTION, OPERATION AND USE OF
A NEW BUILDING AT THE NORTH LAKES SOCCER COMPLEX; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City is the owner and operator of a municipal park known as North
Lakes Park which is located in the City of Denton, Denton County, Texas (the "Park"); and
WHEREAS, the Denton Soccer Association (the "Association") provides a valuable
public parks and recreation service by providing youth soccer activities for the citizens of the
City; and
WHEREAS, the City's Park and Recreation Department has a long standing relationship
with the Association in coordinating such youth soccer activities to obtain the maximum benefit
for the recreational needs of the citizens of the City; and
WHEREAS, the Association has offered to build and operate, at its own expense, a
building at the Park's soccer complex to be used jointly by the City and the Association to
provide parks and recreational services to the public; and
WHEREAS, the City and Association desire to enter into a Lease Agreement in
substantially the same form as the agreement attached hereto and made a part hereof by reference
(the "Agreement"); and
WHEREAS, the City Council finds that the Agreement is in the public interest; NOW,
THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this ordinance
are incorporated herein by reference.
SECTION 2. The City Council of the City of Denton hereby approves the Agreement
and authorizes the City Manager, or his designee to execute it on behalf of the City of Denton
and to carry out the City's rights and duties under the Agreement including the expenditure of
funds provided for in the Agreement.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of 2003.
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EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
HER
BY:
LEASE AGREEMENT
FOR
CITY PARK FACILITIES
This agreement is made and entered into by and between the City of Denton,
Texas, a home rule municipality (the "City"), and Denton Soccer Association, a Texas
non-profit corporation (the "Association'), as of the Effective Date as hereinafter
provided.
WHEREAS, the City is the owner and operator of a municipal park known as
North Lakes Park which is located in the City of Denton, Denton County, Texas (the
"Park"); and
WHEREAS, the Association provides a valuable public parks and recreation
service by providing youth soccer activities for the citizens of the City; and
WHEREAS, the City's Park and Recreation Department (the "Department") has a
long standing relationship with the Association in coordinating such youth soccer
activities to obtain the maximum benefit for the recreational needs of the citizens of the
City; and
WHEREAS, the Association has offered to build and operate, at its own expense,
a building (the "Building") at the soccer complex at the location shown on Exhibit "A"
attached hereto and made a part hereof by reference (the `Building Area") to be used
jointly by the City and the Association to provide parks and recreational services to the
public; and
WHEREAS, the City and Association have entered into this Agreement to set
forth the terms and conditions of the construction, operation and use of the Building;
Now, therefore, in consideration of the mutual covenants contained herein the
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Lease Term. Subject to the terms and conditions contained herein, the
City leases to the Association the Building Area for a term of 30 years commencing on
the Effective Date (the "Primary Term"). After the Primary Term the Association at its
option may lease the Building Area for two successive 10 year terms on the same terms
and conditions as the Primary Term. In order to exercise its option the Association is not
required to take affirmative action; however, if the Association does not desire to exercise
its option, written notice of such intent not to exercise its option must be given to the City
at least 90 days prior to the expiration of the Primary Term or ten 10 year extension, as
the case may be. After the Building is constructed the Building Area shall be reduced to
the size of the foot print of the Building.
2. Consideration. The consideration for the lease shall be as follows:
a. The Association shall construct, operate, and maintain the Building
as provided herein at the Association's expense, except as provided
herein; and
b. The Association shall continuously provide during the term of this
Agreement and any extension thereto, youth soccer activities in
Denton for the public at the same level or greater than it currently
provides; and
c. The Association shall comply with all other terms and conditions
contained in this Agreement.
3. Construction of Building. No later than six months after the Effective
Date the Association shall begin construction of the Building and shall complete
construction of the Building no later than August 31, 2004. The Building shall be a
minimum of 3,200 square feet, which will include office space (the "Office Space"),
storage space ("Storage Space"), meeting area (the "Meeting Area"), restrooms and
concession area as generally depicted on the schematic drawing attached hereto and made
a part hereof by reference as Exhibit "B". Construction activities shall be coordinated
with City Park maintenance operations to insure that construction activities do not
unreasonable interfere with Park activities. During construction activities the Association
and its contractor may use portions of the Park adjacent to the Building Area that are
reasonable necessary to complete construction of the Building. After construction is
completed the Association shall cause such area to be restored to the same condition that
it was in prior to construction. Prior to commencing construction of the Building the
Association shall comply with the following:
a. Provide the City with a complete set of plans and specifications for
the Building (the "Plans"), which must be reviewed and approved
by the City prior to construction. The Building shall be
constructed in accordance with the approved Plans. The City
reserves the right to reject or require modifications to the Plans if
in its sole opinion the Plans are deficient in any way or do not
reflect a Building that is suitable for the Park.
b. Provide the City with a complete copy of the Construction
Contract with the construction contractor (the "Construction
Contract") prior to its execution, which must be reviewed and
approved by the City prior to construction. The Construction
Contract will provide that the City is a third party beneficiary and
will provide for insurance that meets the Insurance Requirements
set forth in Section 8 of the this Agreement but with the additional
requirement for builder's risk insurance covering the full value of
the Building. Because the Building Area is public property a
performance bond and payment bond in a form approved by the
Page 2
City shall be required in the full amount of the Construction
Contract price with the Association and City as co-payees.
4. Use. The Building shall be the sole property of the City. During the
term of this Agreement and any extension thereto, the Association shall have use of the
Building for any soccer activities (the "Permitted Uses"). The Permitted Uses are subject
to the following:
a. The Association shall have exclusive use of the Office Space except for
reasonable inspection by the City upon reasonable notice to the
Association.
b. The Association shall have exclusive use of the Storage Space except for a
portion of the Storage Space having exterior access (the "City Storage").
The City Storage shall be an area within the exterior accessed Storage
Space that is separated from the Association's Storage Space by a cage or
other mutually agreed upon separation. Only authorized City employees,
contractors or agents will have access to the City Storage. The City
Storage Space may be used only for City soccer related items, materials
and supplies.
C. The Association shall have primary use of the concession area. The City
may use the concession area only at times that are not scheduled for
Association use and only upon advanced written notice to the Association.
d. The public access restrooms shall be open to the City, Association and
general public at all times.
C. The Association shall have primary use of the Meeting Area. The City
may use the Meeting Area for park and recreation activities a minimum of
10 times per year. The dates and times for such use shall be scheduled for
dates and times when the Meeting Area is not in use by the Association in
accordance with an annual schedule to be determined by City's Parks and
Recreation Director (the "Director") and the Association's President (the
"President"). Once the annual schedule is determined it may be amended
by mutual agreement of the Director and President. An authorized City
employee shall be present during the City's use of the Meeting Area.
5. Additional Association Responsibilities. Throughout the term of this
Agreement the Association shall be responsible for the following:
a. routine repair and maintenance of the Building; and
b. payment of all utilities serving the Building; and
Page 3
C. provide furniture, equipment and other furnishings for the
Building; further it is agreed by the parties that all personal
property provided by the Association is owned solely by the
Association and does not belong to the City; and
d. janitorial service for the Building; and
e. provide insurance for the contents of the Building.
6. City Responsibilities. Throughout the term of this Agreement the City
shall be responsible for the following:
a. notwithstanding Subsection 5.a above, upon written request from
the Association, and if funds are available, make repairs to the
Building; and
b. perform routine maintenance of the grounds around the Building
consistent with maintenance of existing grounds at the Park; and
c. notwithstanding Subsections 5.c and 5.d above, provide
furnishings, supplies and janitorial services for City's scheduled
use of the Building and all consumables for the public access
restrooms; and
d. provide directional signage to the Building; and
e. upon completion and acceptance of the Building by the City,
assume risk of loss and damage to the Building by including the
Building under the City's current property loss insurance program;
and
f. set and collect all fees, if any, for use of the Building by non-
Association users. All such revenues will belong to the City which
may be used to recover costs associated with the Building,
including, but not limited to, costs incurred by the Association
related to management of the Building.
7. Indemnification. The Association shall indemnify, defend and hold
harmless the City, its officers and employees from and against any and all claims,
liability, actions, loss, damages and injuries, including death, arising out of the
Association's use of the Building or resulting from the negligent act or omission of the
Association, its employees, officers, volunteers, agents, contractors or invitees.
8. Insurance. Throughout the term of this Agreement, and any extension
thereto, the Association shall keep in full force and effect insurance meeting the
following requirements:
Page 4
Tyne Amount
1. Workers' Compensation Statutory
Employer's Liability $100,000 per occurrence
OR
Occupational Injury/Accidental $100,000
Injury Protection
2. Commercial (Public) Liability
including but not limited to:
Premises/Operations
Independent Contractors
Products/Completed Operations
Contractual Liability
Bodily Iniury
$200,000 per person
$500,000 per occurrence
Property Damage
$100,000 per occurrence
OR
$500,000 combined single limit for bodily
injury and property damage (per occurrence)
Business Automobile Liability
to include coverage for:
Owned/Leased Autos
Non-Owned Autos
Hired Cars
$300,000 combined single
limit for bodily injury
and property damage
(per occurrence)
Within 30 days after the Effective and before construction activities begin, the
Association shall provide insurance certificates to the City evidencing the above
insurance requirements and the builder's risk insurance specified in Subsection 3.b from
an insurance carrier or carriers that is licensed to do business in Texas and has an AM
Best rating of A- or better. Such liability insurances and their certificates must:
a. Name the City of Denton as an additional insured.
b. Provide for 30 days advance written notice to the City of cancellation or
material change.
C. Provide for waiver of subrogation as against the City.
9. Liens and Encumbrances. The Association shall keep the Building
Area and the Building free and clear from all liens and encumbrances. The Association
may not encumber by mortgage, deed of trust or other instrument the Building, Building
Area or its leasehold interest under this Agreement.
10. Assignment and Subletting. The Association may not assign or sublet its
interests under this Agreement without the prior written consent of the City.
11. Involuntary Assignment and Bankruptcy. Neither this Agreement nor
the Association's interest therein shall be subject to involuntary assignment, transfer, or
Page 5
sale, or to assignment, transfer, or sale by operation of law in any manner, and any
attempted involuntary assignment, transfer, or sale shall be void and of no effect.
Without limiting the foregoing, in the event of an involuntary assignment, transfer, or
sale or in the event a bankruptcy proceeding is commenced by or against the Association,
such event or events shall constitute a breach of this Agreement by the Association, and
at the election of the City, this Agreement and all of the Association's rights therein may
be terminated.
12. Default. If the Association shall fail or neglect to observe, keep, or
perform any of the covenants, terms, or conditions contained in this Agreement on its part
to be observed, kept, or performed, and the default shall continue for a period of 90 days
after written notice from the City to the Association setting forth the nature of the
Association's default, then and in any such event, the City shall have the right at its
option, on written notice to the Association, to terminate this Agreement and all of the
Association's rights therein shall then cease. The City, without further notice to the
Association, shall have the right to enter and take possession of the Building and the
Building Area with or without process of law and to remove all personal property and all
persons occupying the Building and the Building Area to the end that the City shall have
exclusive possession of the Building and the Building Area. In addition, the City shall be
entitled to any and all other remedies available to it in law or in equity which remedies
shall be cumulative.
13. Early Termination by Association. After completion of and final
acceptance of the Building by the City, the Association shall have the right to terminate
this Agreement with 90 days advanced written notice to the City. As of such termination
date, the Association shall not longer be responsible for any terms or conditions of the
Agreement. Notice of termination does not constitute a default of this Agreement. After
termination of this Agreement it is the City's intent to continue to use the Building for
soccer and related park and recreation activities.
14. Notices. All notices, demands, or other writings in this Agreement
provided to be given or made or sent, or which may be given or made or sent, by either
party to the other, shall be deemed fully given or made or sent when made in writing and
deposited in the United States mail, certified mail, return receipt requested, or when
received via facsimile at the addresses or fax numbers set forth below:
TO ASSOCIATION: President
Denton Soccer Association
P.O. Box 184
Denton, Texas 76202-0184
Fax No.:
TO CITY: City Manager
City of Denton
Denton City Hall
215 E. McKinney
Page 6
Denton, Texas 76201
Fax No. 940-349-8596
The addresses or fax nos. set forth above may be changed by providing written notice as
provided above of such change.
15. Non-Waiver. A waiver by a party to this Agreement of any breach of any
covenant or duty of the other party under this Agreement is not a waiver of a breach of
any other covenant or duty of such party, or of any subsequent breach of the same
covenant or duty.
16. Time of the Essence. Time is of the essence of this Agreement and all of
its provisions.
17. Governing Law and Venue. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of Texas and is fully
performable in Denton County, Texas. Exclusive venue for any suit under this
Agreement shall be in Denton County, Texas.
18. Section Headings. The titles to the sections of this Agreement are
solely for the convenience of the parties and shall not be used to explain, modify,
simplify, or aid in the interpretation of the provisions of this Agreement.
19. Entire Agreement. This Agreement shall constitute the entire
agreement between the parties. Any prior understanding or representation of any kind
preceding the date of this Agreement shall not be binding upon either party except to the
extent incorporated in this Agreement.
20. Modification of Agreement. Any modification of the Agreement shall be
binding only if evidenced in a writing signed by each party by its authorized
representative.
21. Authority to Sign. The persons signing this Agreement represent and
warrant that they are authorized by their governing bodies to sign the Agreement on
behalf of the City and the Authorization, respectively. The City will provide the
Association a copy of the City ordinance or resolution authorizing this Agreement and
the Association will provide the City with the Association resolution authorizing this
Agreement.
SIGNED to be effective as of the / ~ay of 2003 (the
"Effective Date").
Page 7
CITY-0PnE17WN, TEXAS
Michael A. G
City Manager
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO FORM:
HERBERT L. BI~OUTY CITY ATTORNEY
BY:
DENTON SOCCER ASSOCIATION
BY:0gm.'1x'7d"'m"i
Jane Malone
President
Page 8
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF DENTON
This instrument is acknowledged before me, on this 0day of , 2003 by
Michael A. Conduff, City Manager of the City of Denton, Texas, on 166half f said city.
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No y Public in and for the State of Texas
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF DENTON
ih
This instrument is acknowledged before me, on this AT day of 2003 by
Jane Malone, President of the Denton Soccer Association, on behalf said Association.
Notary Public in d for the State of Texas
Page 9
Exhibit A
North Lakes Park
Denton Soccer Association Building
Playing Fields
To
Bonnie
Brae
Parking
Foot
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#1
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13
Foot
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Soccer
15
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14
Soccer
Soccer 3
Soc Soc Soc
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Soccer
2
Soccer 10
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4 6
Proposed DSA
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Pavilion
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Page 10
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Scale: Project: Henry Rife Construction, Inc.
Proposed DSA Concession Bldg. P.O. Box 2936
Page 11 _ Denton, TX 76202