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2002-237FILE REFERENCE FORM I 2002-237 I Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILE(S) Date Initials Change Order No. 1 to Amendment to and Assignment of Construction Manager-At-Risk Agreement 01/24/03 -23'y 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 MUTUAL AGREEMENTS OF BOTH PARTIES TO REPAVE A PORTION OF CHESTNUT STREET AND SYCAMORE STREET, BEING STREETS OWNED WITHIN THE CITY; AUTHORIZING THE EXECUTION BY THE CITY MANAGER OF A TRIPARTITE AMENDMENT AND ASSIGNMENT PURSUANT THERETO; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That 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 mutual agreements of the City and the University of North Texas regarding the repaying of a certain portion of Chestnut Street and Sycamore Street, in the City of Denton, Texas, substantially in accordance with the Interlocal Cooperation Agreement which is attached hereto and incorporated by reference herein. SECTION 2. That the City Manager is hereby authorized to execute, on behalf of the City, a tripartite "Amendment to and Assignment of Construction Manager-At- Risk Agreement" (hereafter the "Tripartite Amendment and Assignment") respecting the City, the University of North Texas, and Austin Commercial, L.P., substantially in accordance with the provisions of the Tripartite Amendment and Assignment which is attached hereto and incorporated by reference herein. SECTION 3. That the expenditure of funds by the City as set forth in the Interlocal Cooperation Agreement and the Amendment and Assignment of Construction Manager-At-Risk Agreement is hereby authorized. SECTION 4. That this ordinance shall become effective immediately upon its passage and approval. ,200 . EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, ~ITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY S:\Our Documents\Ordinanees\02\Interlocal Agrmt-UNT-Paving~2hestnut and Sycamore.doc STATE OF TEXAS § COUNTY OFDENTON § 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 §791.01 l(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 LINT 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 local 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 (Vernon 1994) in order to maximize the benefits to the citizens of the CITY and UNT to be derived from each dollar expended; and WHEREAS, heretofore the cITy and UNT have previousJy entered into an "Inteflocal Agreement" on the 19th day of February, 2002 pertaining to the exchange of land in Denton, Denton County, Texas for use as right-of-way for the proposed Student Recreation Center pursuant to §791.028 of the Texas Government Code; §272.001 of the Texas Local Government Code; and §2-127 of the Denton Code of Ordinances, being adopted by City of Denton Ordinance No. 2002-056 and Resolution No. R2002-006 both adopted and effective on the 19th day of February, 2002; which streets are mom particularly described in said Resolution; and WHEREAS, the CITY and UNT have discussed the matter of paving certain streets located within the corporate limits of Xthe CITY, which are a governmental function under the provisions of §791.003(3)(C), and which covers other governmental functions in which the CITY and UNT are mutually interested, under the provisions of §791.003(3)(N), and each believe that they may take advantage of economies of scale and other advantages by entering into this Interlocal Cooperation Agreement; by each agreeing to assume the responsibility of performing a portion of the repaying work, as well as the replacement, or repair of certain curbs, curb cuts, and sidewalks, all as more particularly set forth below; and WHEREAS, the CITY and UNT desire to establish certain responsibilities regarding the repaying of Chestnut Street and Sycamore Street (the "Affected Streets"), as provided and permitted within this Interlocal Cooperation Agreement, to more effectively and efficiently complete the repaving project in light of the expected use of the streets; to avoid unnecessary or duplicitous expense; to achieve convenience for the CITY and for UNT; to equitably provide for the repaving responsibility to be paid by the governmental unit that is predominately utilizing the Affected Streets; and to take mutual advantage of the economies of scale, thereby resulting in cost savings to each party; and WHEREAS, the CITY and UNT, by this Interlocal Cooperation Agreement (the "Agreement") express their mutual understanding that the relationship to be created by implementation of this Agreement is that of two local governmental entities providing for the repaying and other related functions of the Affected Streets; and WHEREAS, there is a valid governmental purpose served by this Agreement by the CITY and UNT to provide for the repaying activities and other related functions of the "Affected Streets" by the CITY and LINT; and WHEREAS, the CITY and UNT agree that any payments 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 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 §791.01 l(d)(2); and that any payments made pursuant to the 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 WHEREAS, the Interlocal Cooperation Act, as it is now contained in Chapter 791 of the Texas Government Code (Vernon 1994), authorizes the CITY and UNT to enter into this Agreement for the purpose of achieving the governmental functions and providing the repaying services represented by this collective, cooperative undertaking; 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 repaying of the Affected Streets and other related services for the term of the Agreement. 2 ARTICLE III TERM OF AGREEMENT This Agreement shall be effective as of the ~4~day of ~//rx, cx~' , 2002 and shall continue in force and effect until August 31, 2003. The lffarties ~nay each elect to terminate this Agreement, as permitted under the provisions of Article IV hereunder. The parties may each elect to extend the term of this Agreement for periods of one (1) year. 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 COUNTY; or B. August 31, 2003; or C. By either party, if a party defaults or broaches anyof 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 UNT The undertaking of UNT for the term of this Agreement, is as follows: A. LINT agrees to repave Chestnut Street between North Texas Boulevard and Avenue D, and to replace the south curb of Chestnut Street. LINT agrees to pay all sums that are related to its undertaking; and B. UNT agrees to pay for and perform the "Amendment to and Assignment of Construction Manager-at-Risk Agreement" executed by and between UNT, the CITY, and Austin Commercial, Inc. (now assigned to Austin Commercial, L.P. on December 17, 2001), as it relates to the undertaking described in V.A. above; and C. UNT will accept all financial responsibilities that are due to the repaying activities described in V.A. above; and D. LINT agrees to oversee the repaying activities described in V.A. above; and E. UNT agrees to cooperate and provide information to the CITY upon request by the CITY regarding the repaying activities described in V.A. above. F. LINT agrees to complete the repaving activities described in V.A. above by August 31, 2002. 3 ARTICLE VI UNDERTAKING OF THE CITY The undertaking of the CITY for the term of this Agreement, is as follows: A. CITY agrees to repave Sycamore Street between North Texas Boulevard and Avenue D, as well as to repair or replace the curbs, curb cuts, and sidewalks on the north side of Sycamore Street; and B. CITY agrees to pay for and to perform only that portion of the "Amendment to and Assignment of Construction Manager-at-Risk Agreement" executed by and between UNT, the CITY, and Austin Commercial, Inc. (now assigned to Austin Commercial, L.P. on December 17, 2001), as it relates solely to the undertaking described in VI.A. above; and C. CITY will accept ail financial responsibilities that are due to the repaving activities described in VI.A. above. D. CITY agrees to oversee the repaving activities described in VI.A. above. E. CITY agrees to cooperate and provide information to UNT upon request by UNT regarding the repaying activities described in VI.A. above. F. CITY agrees to complete the repaving activities described in VI.A. above by July 31, 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 omissions 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, its officials, officers, agents, employees, or attorneys, except that LINT assumes no liability for the sole negligent acts of CITY, its officials, officers, agents, employees, or attorneys. 4 Only to the extent allowed by the Constitution and statutes of the State of Texas, and without waiving any immunity or limitation to liability, the CITY agrees to and shall indemnify and hold harmless LINT, 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. ARTICLE IX GOOD FAITH NEGOTIATION AND DISPUTE RESOLUTION Whenever a dispute or disagreement arises under the terms of this Agreement, the parties agree to enter into good faith negotiations to resolve such disputes. If the matter continues to remain unresolved after good faith negotiations by the parties, then the matter shall be referred to outside mediation. This provision is mandatory, arises under the provisions of §791.015 of the Texas Government Code, and shall be a condition precedent to the filing of any litigation by either or both parties hereto. 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. Mall, return receipt requested, postage prepaid; to: CITY: Office of the Assistant City Manager for Utilities City of Denton, Texas 215 East McKinney Denton, Texas 76201 COUNTY: Office of the Vice President - Administrative Affairs University of North Texas P.O. Box 311220 Denton, Texas 76203 Notice shall be deemed to have been received on the date of receipt as shown on the return receipt or other written evidence of receipt. ARTICLE XII 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 xm SAVINGS/SEVERABILITY In the event that any one or more of the provisions hereof contained in this Agreement shall for any reason be held 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 construed as if such invalid, illegal, or unenfomeable provision had never been contained in this Agreement. ARTICLE XIV GOVERNING LAW AND VENUE This Agreement shall be construed under and governed by, and jn 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. 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 WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be executed in two (2) original counterparts, by its duly-authorized and empowered Mayor; and the University of North Texas has caused this Agreement to be executed by its duly- edda~od ef ~,~t.~_ered Interim Vice President-Administrative Affairs on.t~is the , 2002, to be effective as of the c~r~day of , 02. "CITY" CITY OF DENTON, TEXAS EULINEBROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY HERBERT L. PROUTY, CITY ATTORNEY By: Assistant Cit~orney "UNT" THE UNIVERSITY OF NORTH TEXAS By: Interim Vice-Presidefft - Administrative Affairs (Vice Chancellor and General Counsel) ATTEST: APPROVED AS TO LEGAL FORM: CHONG H. CHOE, ASSISTANT GENERAL COUNSEL By: ~ AMENDMENT TO AND ASSIGNMENT OF CONSTRUCTION MANAGER-AT-RISK AGREEMENT THIS AMENDMENT AND ASSIGNMENT ("Assignment") is hereby entered into by and between the University of North Texas ("UNT"), Austin Commercial, L.P. ("ACL") and the City of Denton ("City") as of July 7~. . 2002. This Assignment hereby amends the Construction Manager-At-Risk Agreement ("Agreement") entered into by and between the University of North Texas ("UNT") and Austin Commercial, Inc. ("ACI") on June 4, 2001, which was subsequently assigned to Austin Commercial, L.P. ("ACL") by ACI on December 17, 2001. WHEREFORE, article 14.02 of the Agreement permits UNT to assign the benefits and burdens of the Agreement to certain entities; WHEREFORE, UNT and ACL both desire to amend such Agreement to permit assignment to additional entities; and WHEREFORE, the City of Denton ("City") wishes to be assigned the benefits and burdens of such Agreement from UNT, in exchange for certain consideration as more fully described below; NOW, THEREFORE, for and in consideration of the mutual covenants and Agreements contained herein and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties, each intending to be legally bound hereby, agree as follows: 1. Section 14.02 is amended such that the phrase "or to the City of Denton" is added at the end of the last sentence. 2. Certain benefits and burdens under the Agreement, as more fully described below, are hereby assigned by UNT to the City. Pursuant to the terms of an Inteflocal Agreement previously signed between UNT and the City, UNT agreed to repave a portion of Chestnut Street between North Texas Boulevard and Avenue D, as well as to replace the north curb of Chestnut Street. By this Agreement, UNT hereby agrees to repave the balance of Chestnut Street between North Texas Boulevard and Avenue D and to replace the south curb of Chestnut Street. In conjunction with UNT's agreement to repave the balance of Chestnut Street, as set forth above in Section 3, UNT hereby assigns that portion of insurance, bonds, warranty and guarantee provided by ACL as pertains to the work performed on that additional portion of Chestnut Street, which UNT is agreeing to repave, as described above. 5. In consideration for this Assignment, the City agrees to repave that portion of Sycamore Street between North Texas Boulevard and Avenue D, as well as to repair or replace the curbs, sidewalks and curb cuts on the north side of Sycamore Street. The City agrees to complete the work no later than July 31, 2003 IN WITNESS WHEREOF, all parties, acting in good faith, agree to the terms and conditions set forth in this Amendment. On Behalf of the University of North Texas: Richard Rafes, Interim VP ~ninistrative Affairs Date On Behalf of Austin Commercial, L.P.: Steve Wamick, Vice President, Austin Commercial, Inc., General Partner Date On Behalf of the City of Denton: City Manager - ~_~ Date COUNTY OF DENTON STATE OF TEXAS CHANGE ORDER NUMBER 1 TO AMENDMENT TO AND ASSIGNMENT OF CONSTRUCTION MANAGER-AT-RISK AGREEMENT WHEREAS, on the 23rd day of July, 2002 the University of North Texas ("LINT"), Austin Commercial, L.P. ("ACL"), and the City of Denton, Texas ("City") entered into an "Amendment to and Assignment of Construction Manager-At-Risk Agreement" ("Agreement") which was related to City of Denton Ordinance No. 2002- 237, enacted July 23, 2002 as well as an Interlocal Cooperation Agreement by and between the City and LINT of even date therewith, providing for, among other things, the City's repaying of that portion of Sycamore Street between North Texas Boulevard and Avenue D, as well as to repair or replace the curbs, sidewalks and curb cuts on the north side of Sycamore Street; and WI-IEREAS, the paving and related activities provided for in the Agreement have been commenced and the City has incurred additional costs in conformity with the Agreement, and has prepared an invoice for additional curb and gutter installation on the south side of Sycamore Street, in the amount of $10,695 directed to Floyd Smith Concrete, Inc., and will issue said invoice to Austin Commercial, L.P. with its request for payment; and WHEREAS, the parties to the Agreement UNT, ACL and the City desire to execute this Change Order No. 1 in order to properly reflect the additional unpaid liability owing the City for services rendered and for materials furnished under said Agreement; and WHEREAS, all other provisions of the Agreement shall remain in full force and effect; and WHEREAS, the City is empowered to act regarding the execution of this Change Order No. 1 by its duly authorized and delegated City Manager; ACL as well as the UNT each, do hereby approve this Change Order No. 1 by and through their duly-authorized officers. IN WITNESS WHEREOF, all parties, acting in good faith, agree to the terms and conditions set forth in this Change Order No. 1. 1 On Behalf of the University of North Texas: Richard Rafes, Interih~ ~P ~finistrative Affairs On Behalf of Austin Commercial, L.P.: Steve Warnick, Vice President Austin Commercial, Inc. General Partner Date Date O~exas: Michael A. Conduff~, ~anager Date S:\Our Documcnts\Contracts\03\Change Order No 1-Austin Commercial LP-Intcrlocal UNT.doc 2