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2001-202FILE REFERENCE FORM I 2001-202 ] Additional File Exists Additional File Comains Records Not Public, According to the Public Records Act Other FILE(S) Date Initials Amended by Ordinance No. 2002-142 05/14/02 Amended by Ordinance No. 2003-121 05/13/03 ORDINANCE NO AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE AN INTERLOCAL AGREEMENT BY AND BETWEEN THE CITY OF DENTON, TEXAS AND THE DENTON INDEPENDENT SCHOOL DISTRICT PERTAINING TO THE CONSTRUCTION, MAINTENANCE, AND OPERATION OF AN AQUATIC CENTER, AUTHORIZING THE EXPENDITURE OF FUI~S THEREFOR, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City of Denton ("CITY") and Denton Independent School Dlsmct ("DISD') desire to proxade for the construction, maintenance and operation of an Aquatic Center consisting of a natatorium, an outdoor swimming pool, related aquatic facflit~es, and infrastructure necessary to serve smd facilities (the "Aquatic Center") on certmn real property currently owned by DISD, and WHEREAS, the City Council finds that the Interlocal Agreement between the CITY and DISD, a copy of wfuch Is attached hereto and made a part hereof by reference (the "interlocal Agreement") is in the public ~nterest, NOW, THEREFOR, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 The Mayor, or m her absence the Mayor Pro Tern, ~s hereby authonzed to execute, on behalf of the C~ty, the Interlocal Agreement SECTION 2 The expenditure of funds as set forth in the Interlocal Agreement is hereby authorized SECTION 3 This ordinance shall become effective ~mme&ately upon its passage and approval PASSED AND APPROVED this the /~-- day o ~/~') , 2001 EULINE BROCK, MAYOR ATTEST JEJ~FER WALTERS, C4TY SECRETARY By~~ [~ )~ By --f~" ~' S \Our Documents\Ordinances\01 ~In~erlocal Agrmt-Aquatl¢ Center doc INTERLOCAL AGREEMENT THIS AGREEMENT is made and entered into by and between the DENTON iNDEPENDENT SCHOOL DISTRICT (hereinafter "DISD"), organized and existing under the laws of the State of Texas, and the CITY OF DENTON, TEXAS, a Texas Municipal Corporation (heremafter "CITY"), acting by and through, and under the authority of their respective governing bodies, and WHEREAS, the DISD and CITY are local governmental entities both of whom have the authority to perform the services set forth m this Agreement individually and who mutually desire to enter into an mterlocal agreement, which is authortzed by Chapter 791 of the Texas Government Code (Vernon 1994), Section 45 109 of the Texas Education Code, and Chapter 332 of the Texas Local Government Code, in order to maximize the benefits derived from each taxpayer dollar, and WHEREAS, the DISD IS the owner of that certmn tract of real property situated within the boundary of the DISD, and which is more specifically described in Exhibit "A" attached hereto and incorporated herein by reference (the "Property"), and WHEREAS, the DISD and CITY desire to provide for the construction of Aquatic Facilities consisting of a Natatorium and outdoor swimming pool and related aquatic facilities (the "Aquatic Facilities") on the Property including infrastructure necessary to serve the Aquatic Facilities, and WHEREAS, the DISD and CITY desire to pool their resources, avoid unnecessary or duphcitous expense, and take advantage of maximizing economies of scale, resulting in cost savings to their respective taxpayers, and WHEREAS, the DISD and the CITY desire to provide for the maintenance and operation of the Aquatic Facilities once completed, and WHEREAS, ttus Agreement serves important public purposes In provldmg for aquatic recreational and educational activities for the constituents of the DISD and CITY, and WHEREAS, the DISD and CITY agree that all payments made in connection with the govemmemtal fimctlons provided for by this Agreement shall be made from current revenues avmlable ~o the paying party and the payments received are adequate and fairly compensate the parties fo~ the services performed, except that the parties agree and understand that the CITY will not have thear funds available until November 1, 2001, and WHEREAS, the Interlocal Cooperation Act, now contained in Chapter 791 of the Texas Government Code (Vernon 1994), authorizes the DISD and CITY to enter into this Agreement for the purpose of acfueving the governmental functions and providing the services represented by this Denton Independent School D~smct &Ctty o! l)enton Interlocal CooperatlOil Agreement Page 1 collective, cooperative undertaking NOW THEREFORE, the DISD and CITY, for and inconsideration of the premises and the mutual covenants set forth hereto do hereby AGREE as follows ARTICLE I INCORPORATION OF PREAMBLES All matters and recitations stated m the preamble of thru Agreement are true and correct and are hereby ~ncorporated by reference into the provisions of this Agreement for all purposes ARTICLE II PURPOSE The purpose of this Agreement ~s, as described in the preamble, to evidence the agreement of the DISD and CITY to provide for the design, construction, operation, management, mmntenance and financing of the Aquatic Center (heremafter sometimes called the "Proj ect") and being generally described in Exhibit "B" attached hereto and incorporated herein by reference ARTICLE III TERM The term of this Agreement shall commence on the date on which all part~es hereto have executed this Agreement (the "Effective Date") and shall continue until terminated in accordance with Article X ARTICLE IV DEFINITIONS The following terms shall have the meanings set forth below Aquattc Center- shall mean the Natatorium, Outdoor Aquatic Facilities, Parking Facilities, Landscaping and Infrastructure for the ProJect as set forth in Section 6 2 of this Agreement Natatorium- shall have the meaning set forth in Section 6 2 of this Agreement Outdoor Aquatic Factht~es- shall have the meaning set forth ~n Section 6 2 of this Agreement Dellton Independent School D~so mt & C~ty ol Denton lntedoca[ Cooperation Agleemcnt Page 2 Prehmmary Concept Plan or SchemattcDestgn- shall have the meamng set forth ~n Section 6 1 of this Agreement ProJect- means the design, construction, mmntenance and usage of the Aquatm Center ARTICLE V PROJECT SITE 5 1 Project S~te Unless otherwise prowded and agreed by an amendment to this Agreement, the DISD shall construct the Aquatic Center to be located on the Property DISD shall convey to the CITY by separate instrument a one-half und~wded interest in the Property for the a price of $5000 00 per acre The DISD and CITY shall enter into a separate real estate agreement to provide for the sale and purchase of the tmd~wded ~ntemst in the Property 5 2 Wo~ver of l~ght of Partition Each party hereto agrees to wmve any rights to partition the Property, whether by partition in kind or by sale and division of the proceeds, and further agrees that it will not resort to any action in law or ~n eqmty to partmon the Property The covenants contmned ~n th~s Section 5 2 shall survive termmatlon of this Agreement ARTICLE VI PROJECT DESIGN 6 1 Prellmlnatw Concept Design The CITY has previously prod for and selected, and DISD has approved, the use of Schnckel, Rolhns and Assocmtes, Inc (the "Architect") in association w~th VLK Architects, Inc and Aquatm Design Group to prepare a Preliminary Concept Design (also called the Schematic Design ) for the Project, a copy of which ~s attached as Exhibit "B" 6 2 Pr~aject Composition As shown by the Schematic Design the Project consists of the following a Natatorium-The Natatonum is the indoor swimming facility contatmng (1) a competition swimming pool, (2) a recreation swimming pool, (3) competition seating, (4) office space, (5) showers and locker rooms, (6) storage facihtles, (7) concessmn areas, (8) assoemted mechamcal/chemical/pump area, and (9) restrooms b Outdoor Aquatic Facilities-The Outdoor Aquatic Facilities are the outdoor swimming famhty commmng (1) recreatmn areas designated as (a) a continuous current channel, (b) two outdoor swimming pools, (c) pavilions, and (d) volleyball court, (2) mechanmal/chemlcal areas, (3) restrooms, (4) entrance gates, (5) lounging areas, and (6) green areas c Parking Facilities-The Project, as shown by the Schematm Design, has a parking lot Denton Independent School D~str~ct & Clly ol Denton Interlocal Cooperauon Agreement Page 3 with a capacity of 331 parking spaces and bus drop-off areas d Infrastructure- The Project includes infrastructure to serve the Aquatic Center, including, water, samtary sewer, drainage, and street facthtles e Landscaping- The landscape improvements as shown on the Preliminary Concept design and as may be added to the final design of the Project 6 3 Final Design The DISD shall enter into an additional agreement with the Architect to provide for the Design Development, preparation of the Working Drawings and Construction Documents, Bidding Phase, and Construction of the Project The final design and approved plans and specifications of the ProJect shall require the approval of the DISD and CITY As provided for below, the DISD shall be responsible for the construction phase of the ProJect 6 4 C0mphance with Laws The DISD shall comply with all applicable laws, regulations and rules in the design and construction of the ProJect and shall periodically consult with designated CITY representatives in connection with the design of the ProJect and shall provide to CITY representatives a copy of the Working Drawings and Construction Documents 6 5 Proleet Schedule The ProJect shall be designed and constructed in accordance with the schedule set forth in Section 7 6 below (the "Project Schedule") Each party acknowledges that the time parameters include construction which is generally beyond the control of DISD and the Architect 6 6 CITY Participation A CITY representative shall be notified and be allowed to participate in all regularly scheduled meetings between DISD, the Architect, and Construction Manager, which involve the ProJect Design ARTICLE VII PROJECT CONSTRUCTION 7 1 Construction Procurement The DISD shall cause the approved plans and specifications to be submitted for construction procurement through the Construction Manager at R~sk procurement procedure as authorized by Chapter 44 of the Texas Education Code Such contract and other construction contracts awarded thereunder shall be between the DISD and the construction manager and construction contractors The CITY shall not be a party to such contracts However, prior to awarding such construction contracts the amount of such contracts shall be submitted to the CITY for its revaew and approval of the amounts thereof 7 2 Prolect Construction Costs The DISD shall be responsible for all of the direct payments of ProJect costs of design, construction, and equipment to the construction manager, contractors and Architect, As provided m Section 8 2 below, the CITY shall reimburse the DISD for the CITY's share of such costs in a total amount not to exceed $4,000,000 00 (this does not include the CITY's Denton Independent School District & £ lty ol l)cnmn Intellocal Coope~aUon Agreement Page d purchase price for the Property), unless the total Project construction costs exceed $9,000,000 00 (the "Maximum Costs") If it appears that the total Project construction costs will exceed the Maximum Costs then the parties hereto shall consult with each other and determine whether the ProJect may be redesigned so as to bring the ProJect w~thm the Maximum Costs If the parties determine that such redesign is unfeasible, either party may prior to the award of any construction manager or construction contract either terminate this Agreement or amend this Agreement to equitably apportion such excess costs between the parties After the award of the Construction Manager at Risk contract the parties shall apportion between the parties any increase m the cost of the ProJect on the basis of DISD being responsible for costs clearly identifiable and allocable to the Natatorium and CITY being responsible for costs clearly identifiable and allocable to the Outdoor Aquatic Facilities, and DISD and CITY being equally responsible for costs incapable of being identifiable and allocable to one or the other of the facilities In the event of termination of the ProJect after the awarding of the Construction Manager at Risk contract, but prior to the Notice to Proceed with construction CITY shall reimburse the DISD that portion of the costs, including but not limited to Architect's fees and Construction Manager expenses, identifiable and allocable to the Aquatic Park and outdoor swimming facilities, and one- half (½) of the costs, including but not limited to Architect's fees and Construction Manager expenses, incapable of being identifiable and allocatable to one or the other of the facilities, after deducting the costs pa~d by the CITY for the Preliminary Design Concept In the event of termination of the ProJect ax"ter the Not~ce To Proceed with construction has been given CITY shall reimburse the DISD that portion of the costs, including but not limited to Architect's fees, Construction Manager expenses, contractor's fees and expenses, and materials costs, identifiable and allocable to the Outdoor Aquatic Facilities, and one-half (½) of the costs, including but not limited to Architect's fees, Construction Manager expenses, contractor's fees and expenses,,and matenals costs, incapable of being identifiable and allocable to one or the other of the facilities, after deducting the costs paid by the CITY for the Preliminary Design Concept 7 3 Arcbatect's Agreement, Construction Manager and Construction Contracts The DISD's agreement with the Architect, the construction manager contract and each construction contract shall provide that (i) the CITY is a third party beneficiary of all representations and warranties made by Architect, construction manager and construction contracts, (u) the Architect, construction manager and contractors shall look solely to the DISD for any payment due them, and (Ill) the Architect, construction manager and contractor each recognize and agree that the CITY shall have no obhgation (express, or implied, direct or indirect) for the performance of the obligations of the DISD under such contracts 7 4 P~rmlts DISD shall obtain and pay the fees for all permits and approvals, including Denton Independent School D~str~ct & C~y ot 1)enton Interloc-d Coope~aUon Agreement Page 5 impact fees, required by any applicable governmental authorities for the design and construction of the ProJect DISD and CITY acknowledge and agree that these fees are part of the total construction cost and CITY shall reimburse DISD for its proportionate share as set out herein 7 5 CITY Inspection Raghts It is intended that the Property will be annexed into the City of Denton However, should construction begin prior to annexation the CITY shall be entitled to enter upon the ProJect Site to respect the progress of the construction and eqmpment of the ProJect, provided the CITY and its representatives do not interfere with the contractors Dunng construction of the ProJect the DISD will provide the CITY with copies of all written construction progress reports received from DISD's contractors and representatives 7 6 Completion of Prolect Subject to the Events of Force MaJeure, construction of the ProJect is intended to be completed in accordance with the ProJect Schedule The ProJect Schedule is as follows October 15, 2001 Construction Begins August 15, 2002 Natatorium Opens for DISD use (Substantial Completion) November 2002 Natatorium Opens for Public use April 1, 2003 Outdoor Aquatic Facilities Construction Substantially Complete May 24, 2003 Outdoor Aquatic Famht~es Open to pubhc 7 7 CITY Participation CITY shall designate a representative who shall be informed of and shall have the right to attend all construction progress meetings between DISD, the Architect, and the Construction Manager, or any combination of such individuals ARTICLE VIII CITY COST PARTICIPATION 8 1 CITY Total Cost The CITY shall pay the DISD the CITY's share of the costs as provided herein, to be prod as provided m Section 8 2 below 8 2 CITY Reimbursement Beginning October 15, 2001 CITY shall reimburse the DISD for CITY's share of the Proj ect costs as provided herein, which have been actually prod by DISD, or incurred, and shall thereafter until completion of the ProJect reimburse DISD for all construction costs and expenses identifiable and allocable to the Outdoor Aquatic Faclht~es, and one-half (¥2) of the construction costs and expenses, including but not limited to Architect's fees and Construction Manager expanses, incapable ofbelng identifiable and allocable to Outdoor Aquatic Faclhtles Such reimbursements shall be made within 30 days of receiving from DISD a legible copy of the ProJect Architect's Certificate for Payment, and Architect's and Construction Manager's opinion as to whether the costs and/or expenses are allocable to the Natatorium or Outdoor Aquatic Facilities, or both Smd relmbursement shall not exceed $4,000,000 00 or the CITY's adjusted share as provided herein Denton Independent School 1)~la~ct & C~ly ol 1)enton Interlocal Coope~atmn Agreement P~ge 6 8 3 DISD reimbursement At the t~me of the CITY's first reimbursement to DISD as prowded for in Section 8 2, the CITY shall be g~ven a credit of $55,750 00 agmnst such reimbursement, which is one half of the cost of the Prehmmary Concept Plan which was prewously prod for by the CITY ARTICLE IX PROJECT OPERATION 9 1 Prolect Operation and Management Dunng construction and until completion and acceptance of the Project, the DISD shall exclusively manage and mmnta;n the ProJect After completion and acceptance of the ProJect the CITY shall exclusively operate, mmntmn, and manage the Aquatic Center The C~ty Manager of the CITY shall provide the day to day adm~mstrat~on, management and operation of the Aquatic Center Prior to completion of construction of the Natatorium, DISD and CITY shall enter into a separate agreement to prowde for operation, mmntenance and usage of the Aquatic Center Such agreement shall allow for joint usage of the Aquatic Center Such agreement shall provide for the equitable shanng of the costs for such adm~mstratxon, management and operation of the Aquatic Center between the City and DISD 9 2 Insurance and Pdsk of Loss CITY and DISD shall each mmntmn in full fome and effect, ~nsurance coverage prowd~ng habfl~ty coverage for the construction and operation of the Aquatic Factht~es and any me,dents occumng on the Project Site DISD shall be deemed the primary insurer of the Natatorium and assocmted ~ndoor swimming facthtles, and CITY shall be deemed the primary insurer of the Outdoor Aquatm Factht~es and assocmted outdoor swimming facthtles The C~ty shall maintain property and casualty insurance for the Aquatic Center upon completion of the construction of ProJect which cost shall be d~vlded equally between the CITY and DISD DISD' s share of such insurance cost shall be reimbursed to the CITY as an operation expense and will be prowded for under the Operation and Management Agreement mentioned m Section 9 1 above Dunng construction of the Project DISD shall make provision m the construction documents that the constructlun manager or construction contractors shall provide such insurance coverage as a part of the construction costs The property and casualty insurance shall be in an mount sufficient to replace, and fully cover, any loss or damage to the Aquatic Center, and all associated facd~tles The habthty coverage shall be ~n an amount of not less than $1,000,000 00 per occurrence for injury to persons 0ncludmg death) and for property damage or destruction The insurance pohey or pohc~es reqmred herein shall name the CITY and DISD as coqnsureds 9 3 C~ualt¥ If the ProJect should be damaged or destroyed to the extent that the estimated costs of repmrs, replacement or reconstruction is not more than one hundred percent (100%) of the aggregate amount of the proceeds from property damage insurance earned and covenng the costs of the repmrs, replacement or reconstruction of the ProJect, the part,es, unless otherwise agreed, shall repmr, replace or reconstruct the ProJect to substantially the same general character or use as the original 9 4 Use of Insurance Proceeds In the event any damage or loss occurs to the Aquatic Center, Denton Independent School D:strtct & C~ty of Denton Interlocal Cooperation Agreement Page 7 which results in the payment of insurance monies for smd loss or damage, smd funds shall be used to repmr or replace the damage or otherwise restore the property to its original condition In the event insurance monies are received in excess of the amount required to repmr or replace the damage or loss, said excess shall be mmntmned m a separate escrow account to be held for future damages, losses, repmrs or mmntenance of the Aquatic Center In the event the Aquatic Center or other structure located on the ProJect Site is deemed to be a total loss and the parties make a determination not to rep~ur or restore the loss or damage, the insurance proceeds shall be apportioned between DISD and,CITY with DISD being allocated all monies resulting from the loss of the Natatorium and CITY being allocated all monies resulting from the loss of the Outdoor Aquatic Facilities, and with all other monies being divided between CITY and DISD equally ARTICLE X TERMINATION 10 1 This agreement terminates upon the following a by mutual written agreement of the parttes, b by termination under Section 7 2 of this agreement, 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 wtthm sixty (60) days after notice by the non-defaultmg party to the defaultmg party, d on the ftfty (50) year anniversary date of the tssuance of a certfficate of occupancy for the ProJect 10 2 Remedies The non-defaulting party may after notice and right to cure has expired seek specific performance of this agreement, or monetary damages in the event of breach of thts agreement 10 3 Early termination If this agreement ts termtnated prior to commencement ofconstmctton of the ProJect, in addition to the reimbursement of the costs as provided in Section 7 2, the Ctty's undivided interest in the Property shall be conveyed back to DISD for the price provided for ~n Section 5 1 10 4 Option to purchase If this agreement is terminated after completion of construction of the Proj ect, the non-defaulting party if termination is pursuant to subsection 10 1 (c), or either party, if termmatt0n is pursuant to subsections 10 l(a) or (b), shall have the option to purchase the other party's tmdlvlded interest ~n the Property, whtch includes all improvements to the Property The option to purchase shall be exercised by glmng written notice of mtent to exercme the optmn to the other party no later than 60 days after termmatton If termination is under subsection 10 1 (c), and no Denton Independent S{ hool Dlst~ct & City ol Demon lnterlocal Coope~atton Agreement Pqge 8 later than 180 days prior to term~natlon if termination is under subsections 10 l(a) or (b) The purchase price for the option shall be determined as follows W~thln 60 days after notice of~ntent to exermse the option ~s g~ven, the exercising party, at ~ts sole expense, shall g~ve the other party a copy ora real estate apprmsal prepared by an mdependent certified real estate fee appraiser holding a MAI designation from the National Somety of Real Estate Apprmsers, whmh provides an op~mon of the fair market value of the other party's undivided tnterest in the Property If the other party IS satisfied w~th smd op~mon, the option to purchase shall be consummated w~thm 60 days after dehvery of the apprmsal If the other party as not satisfied with such op~mon of value, then it shall prowde the exercising party a second apprmsal w~thm 30 days after rece~wng the first appraisal The second apprmsal shall be prepared by an independent certified real estate fee appraiser holding a MAI designation from the National Somety of Real Estate Appraisers, which provides an opinion of thefmrmarketvalueofthenon-exerc~s~ngparty'sundivldedinterestIntheProperty Ifthe first and second appraasal do not vary by more than 20%, then the option price shall determined by averaging the two appraisals, and the purchase shall be consummated within 40 days thereafter If the appraisals vary by more than 20%, then the two appraisers will attempt to agree on the fmr market value o f the undivided interest If they are able to agree w~th~n 20 days after the second apprmsal IS delivered, then the exercising party shall have the option to purchase the other party's interest for e~ther the average of the two apprmsals or the agreed upon value, which purchase shall be consummated w~th~n 20 days thereafter If the appraisers are unable to agree within said 20 day period, then they shall select a third apprmser who shall examine the two appraisals and arrive at an op~mon of value w~thm 20 days thereafter In such case the exerms~ng party shall have the option to consummate the purchase of the other's undivided interest for either the average value of the first two apprmsals or the opimon of value of the third appraiser, which shall be consummated within 20 days after the dehvery of the third opinion of value ARTICLE XI MISCELLANEOUS 11 1 Not~ce Any notme reqmred or permitted to be dehvered hereunder shall be deemed received when sent m the Umted States Mml, Postage Prepaid Cemfied Mai1 Return Receipt Requested, or facsimile transmission and addressed to the respective parties as follows If intended for CITY C~ty of Denton Attn City Manager 215 E McKarmey Denton, Texas 76201 Fax 940-349-8596 With copy to C~ty Attorney Clty of Denton Denton Independent Si hool Dxsu ret & C~ty ol 1)enttm Interlocal CooperaUon Agreement Page 9 215 E McKanney Denton, Texas 76201 Fax 940-382~7923 If ~ntended for DISD Supenntendent Denton Independent School D~strmt 1307 North Locust Denton, Texas 76201 With copies to Executive Director of Budget and Finance Denton Independent School D~stnct 1307 North Locust Denton, Texas 76201 Executive Director of Operations Denton Independent School Dmtnct 230 Mayhlll Road Denton, Texas 76205 11 2 G0vemxng Law The vahdlty ofth~s agreement and any of its terms and prowslons as well as the rights and duties of the parties, shall be governed by the laws of the State of Texas, and venue for any action concerning this agreement shall be in the Courts of Denton County, Texas 11 3 Entire Agreement This agreement represents the entire agreement among the part, es w~th respect to'the subject matter covered by th~s agreement There is no other collateral, oral or written agreement between the parties that m any manner relates to the subject matter of this agreement 11 4 Exlublts All exhibits to this agreement are incorporated herein by reference for all purposes wherever reference is made to the same 11 5 Remtals The recxtals to this agreement are incorporated herein 11 6 Amendment This agreement may be amended by the mutual written agreement of all parties hereto 11 7 Severabd~ty In the event any one or more of the provisions contmned in thru agreement shall for any reason be held to be ~nvahd, illegal, or unenforceable in any respect, such lnvahdlty, dlegahty, or tmenforceablhty shall not affect the other prowsmns, and the agreement shall be construed as if such invalid, dlegal, or unenforceable provlsmn had never been contained in this Denton Independent School D~st~ct & City ol Denton Inlerlocal Cooperatmn Agzeement Page 10 agreement 11 8 Counterparts Th~s agreement may be executed in any number of counterparts, each of which shall be deemed an original and constitute one and the same mstmment 11 9 Non-Asslgnabtht¥ Except as otherwise provided herein, no party to this agreement may sell, assign, or transfer ~ts interest ~n the ProJect, or any of ~ts rights, duties, or obligations hereunder w~thout the prior written consent of the other party 11 10 Consents Whenever the consent or the approval of a party ~s required here~n, such party shall not unreasonably w~thhold, delay or deny such consent or approval 11 11 Good Froth Negotiation, Dispute Mediation Whenever a dispute or disagreement arises under the terms of this agreement the parties agree to enter ~nto good froth negotmtlons to resolve such &sputes If the matter contmues to remain unresolved, the parties shall refer the matter to outside mediation prior to engaging in litigation 11 12 Waiver of Clmms Each party shall have no remedies against the other party for tortuous conduct arising out of the ownership and operation of the Project, or any portion thereof 12 13 Indemnification Except to the extent that DISD or CITY has governmental immunity and then only to the extent permitted by applicable law, the CITY agrees to lndemmfy and defend DISD, its trustees, officers and employees, against any and all clmms, demands, causes of action, costs and liabilities, including reasonable attorneys fees and court costs, arising out of, or resulting from the CITY's negligent act or omissions pertmnmg to its operation of the Aquatic Facilities under this agreement Except to the extent that DISD or CITY has governmental lmmtmlty and then only to the extent permitted by applicable law, DISD agrees to indemnify and defend the CITY, its council, officers, agents and employees, against any and all clmms, demands, causes of action, costs and habflltles, including reasonable attorneys fees and court costs, arising out of, or resulting from DISD's neghgent acts or omissions pertmnmg to DISD use, (including DISD sponsored events or actlwtles), of the Aquatic Facthtles by DISD, its officers, agents, employees, students and ~nvltees under this agreement while acting ~n the above capacities In the event ofjmnt and concurrent negligence of both DISD and CITY, responmbthty and lndemmty, if any, shall be apportioned comparatively m accordance with the laws of the State of Texas, without, however, wmvmg any governmental immunity avmlable to either party under Texas law and without wmwng any defense ofthe parties under Texas law The provisions ofthis Section are solely for the benefit ofthe parties hel'eto and are not ~ntended to create or grant any rights, contractual or otherwise to any third person or entity Each party shall be responsible for any property damage to the Aquatic Facthtms and any related facilities and equipment caused by such party, its officers, agents, employees, and lnwtees dunng such party's use of the Aquatic Factht~es 11 14 Force Maleure Events of Force MaJeure shall mean any contingency or cause beyond the reasonable control of a party including, w~thout hmltatlon, acts of God or the public enemy, war, Denton Independent School I)~st~lct & C~ty ol 1)onion Interlocal Coopelatmn Agreement Page 11 not, civil commotion, insurrection, government or de facto governmental action (unless caused by acts or omissions of the party), fires, explosions, ram or other weather delays, floods, strikes, slowdowns or work stoppages ARTICLE XII REPRESENTATIONS, WARRANTIES AND COVENANTS 12 1 Ropresentatlons, and Warranties of the CITY The CITY hereby represents and warrants to DISD that the following statements are true as of the date of execution a Due Authority No Conflict The CITY has all requisite power and authority to execute this agreement and to carry out its obligations hereunder and the transactions contemplated hereby This agreement has been, and the documents contemplated hereby w~ll be, duly executed and delivered by the CITY and constitute legal, valid and b~nd~ng obhgat~ons enforceable agmnst the CITY in accordance with the terms The consummation by the CITY of the transactions contemplated hereby is not in violation of or m conflict with, not does it constitute a default under, any of the terms of any agreement or instrument to which the CITY is a party, or by which the CITY is bound, or of any provision of any apphcable law, ordinance, rule or regulation of any governmental authonty or of any provision of any apphcable order, judgment or decree of any court, arbitrator or governmental authority b Litigation There are no pending or, to the best knowledge of the CITY, threatened, judicial, municipal or adm~mstrat~ve proceedings, consent, decreed or judgments which m~ght effect the CITY's abthty to consummate the transaction contemplated hereby c The CITY hereby covenants to comply w~th all laws, ordinances and regulations of and agreements with or obligations to any federal, state, mummpal or other governmental body as may apply to the performance of the CITY's obhgatlons hereunder 12 2 DISD's Representations and Warranties DISD represents and warrants to the CITY that the following representations and warranties are tree as of the date of execution a Due Authority No Conflict DISD has all reqms~te power and authority to execute this agreement and to carry out its obhgat~ons hereunder and the transactions contemplated hereby This agreement has been, and the documents contemplated hereby will be, duly executed and delivered by DISD and constitute legal, vahd and binding obhgatlons enforceable agmnst DISD in accordance w~th the terms The consummation by DISD of the transactions contemplated hereby is not in molat~on of or in conflict with, nor does ~t constitute a default under, any of the terms of any Denton Independent School DlsO~ct & C~ty ot Denlon lnterlocal Cooperation Agreement Page 12 agreement or lnstnunent to whmh DISD is a party, or by whmh DISD ~s bound, or of any prowsmn of any apphcable law, ordinance, rule or regulation of any governmental authority or of any provision of any applicable order, judgment or decree of any court, arbitrator or governmental authority b Litigation There are no pending or, to the best knowledge of DISD, threatened, juchclal, mumc~pal or adm~mstrat~ve proceedings, consent, decreed or judgments which might effect DISD's ability to consummate the transaction contemplated hereby c DISD hereby covenants to comply with all laws, ordinances and regulations of and agreements w~th or obhgat~ons to any federal, state, mumclpal or other governmental body as may apply to the performance of DISD's obhgat~ons hereunder 12 3 Survival Each of the provisions contmned ~n this Article shall survive termination IN WITNESS WHEREOF, the Denton Independent School D~stnct has caused th~s Interlocal Agreement to be executed by its duly authorized President of the Board of Trustees, and the City of Denton, Texg~ has caused t..hts Interlocal Agreement to be executed by its duly authorized Mayor on this the J_~_~day/r~r~q of ~ ~t~ ,2001 DENTON INDEPENDENT SCHOOL STRICT Rlck Woolfolk [ ) President of the Board ol'Trustees ATTEST Jean B Schaake, Member of the Board of Trustees CITY OF DENTON Euhne Brock, Mayor Denton Independent School Dlsmct & C~ty ot Denton Interlocal Cooperauon Agreement Page 13 ATTEST Jenm~jfWhft[~s, ~21ty S~retary APPROVED AS TO LEGAL FORM BY ~ ~m Herbert L Prou[~ ey S \Our Documents\ContractsX01\Aquatlc Interlocal 5-02-01 doc Denton Independent School I)~qt~-~tt & Cny ot Denton Intel'local Cooperatmn Agreement Page 14 EXHIBIT A / / n~ EXHIBIT "B" PRELIMINARY CONCEPT DESIGN CONCEPT DENTON AQUATIC CENTER