2002-237FILE REFERENCE FORM I 2002-237 I
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Change Order No. 1 to Amendment to and Assignment of
Construction Manager-At-Risk Agreement 01/24/03
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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.
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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.
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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.
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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.
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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
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