Loading...
HomeMy WebLinkAboutR2008-024S:\Our Documents\Resolulions\O8\Tx DOT Grant Resolution-AitporLdnc RESOLUTION NO. ~Q2D, 0~ 02~ A RESOLUTION, EXPRESSING ON BEHALF OF THE CITY OF DENTON, AN INTEREST N PARTICIPATING IN A GRANT OFFER FROM THE TEXAS DEPARTMENT OF TRANSPORTATION (TXDOT) TO FUND AN AIRPORT BUSINESS PLAN RELATING TO TO THE DENTON MUNICIPAL AIRPORT; DEMONSTRATING THAT THE CITY OF DENTON HAS REQUISITE MATCHING FUNDS 1N THE AMOUNT OF $50,000.00; CONFIRMING AGREEMENT TO PAY A PORTION OF THE TOTAL PROJECT COSTS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas, intends to make certain improvements to the Denton Municipal Airport relating to a Business Plan; and WHEREAS, the City of Denton is interested in participating in a grant offer from TxDOT to fund an Airport Business Plan; and WHEREAS, TxDOT has asked the City of Denton to designate a Project Representative; and WHEREAS, the City of Denton intends to request financial assistance from the Texas Department of Transportation (TxDOT) for these improvements; and WHEREAS, the City of Denton will be responsible for 50% of the total Project cost, currently estimated to be $50,000 in Fiscal Year 2009; and WHEREAS, the City of Denton names the Texas Department of Transportation (TxDOT) as its agent for purposes of applying for, receiving and disbursing all funds for these improvements and for the administration of contracts necessary for the implementation of this project; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION I. The City of Denton, Texas, hereby directs the City Manager to execute on behalf of the City of Denton, at the appropriate time, and with the appropriate authorizations of this governing body, all contracts and agreements with the State of Texas, represented by the Texas Department of Transportation (TxDOT), and such other parties as shall be necessary and appropriate for the implementation of the improvements to the Denton Municipal Airport referenced in Exhibit A. SECTION 2. Tliis resolution shall become effective immediately upon its passage and approval. rn~. txrooio,~~x~mnoi~soav.oor c..,.. a~~owuoo-n'~.a~ PASSED AND APPROVED this the ~ / =`t day of , 2008. V/" t /`L~l.~ PERRY . McNEILL, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY sY: ~ APPROVED AS TO-LEGAL FORM: EDWIN M. SNYDER, CITY ATTORNEY BY: PAGE2 TEXAS DEPARTMENT OF TRANSPORTATION AIRPORT PROJECT PARTICIPATION AGREEMENT State Assisted Airport Planning Grant) TxDOT CSJ No.: 0918DENTN TxDOT Project No.: AP DENTON 11 TxDOT Contract No.: 9XXAV005 Commission Approval: August 28, 2008 Part I -Identification of the Project TO: The City of Denton, Texas FROM: The State of Texas, acting through the Texas Department of Transportation This Agreement is made between the Texas Department of Transportation, (hereinafter referred to as the "State"), on behalf of the State of Texas, and the City of Denton, Texas, hereinafter referred to as the "Sponsor"), under the authority granted and in compliance with the provisions of the V.T.C.A., Transportation Code, Title 3, Chapters 21-22, et seq.(Vernon and Vernon Supp.). The project is described as planning services to: prepare an airport business plan at the Denton Municipal Airport. Part II -Offer of Financial Assistance The allowable costs of the project shall not include any costs determined by the State to be ineligible under the V.T.C.A. Transportation Code, Title 3, Chapters 21-22, et seq., Vernon and Vernon Supp). 2. It is estimated that project costs will be approximately $100,000 (Amount A). It is further estimated that approximately $100,000 (Amount B) of the project costs will be eligible for financial assistance, and that financial assistance will be for fifty percent 50%) of the eligible project costs. Project costs eligible for financial assistance shall be determined by the State. It is estimated that the Sponsor's share of the project costs will be approximately $50,000 (Amount C) and the state's financial assistance share of eligible project costs will be approximately $50,000 (Amount D). Financial assistance is subject to the availability of state funds. This grant should not be construed as block grant funds for the Sponsor, but as a grant for Page 1 of 12 funding of the scope items as listed on page one of this agreement. It is the intent of the Agent to provide funding to complete the approved work items of this grant and not to amend the scope of work to include items outside of the current determined needs of this project. Scope of work may be amended as necessary to fulfill the unforeseen needs of this specific development project within the spirit of the approved scope, subject to the availability of state and/or local funds. If there is an overrun in the eligible project costs, the State may increase the grant to cover the amount of overrun not to exceed the statutory twenty-five (25%) percent limitation, and will advise the Sponsor by amendment of the increase. Upon receipt of the amendment, the maximum obligation of the State is adjusted to the amount specified and the Sponsor will remit their share of the increased grant amount. Participation in additional state eligible costs may require approval by the Texas Transportation Commission. The State will not authorize expenditures in excess of the dollar amounts identified in this Agreement and any amendments, without the consent of the Sponsor. 4. After consultant fee negotiations, if the estimated eligible total project costs exceed Amount A, above, the Sponsor may request the State to void this Agreement, whereupon the State shall agree to void this Agreement upon the satisfaction of the following conditions: a. the Sponsor's request to the State to void the Agreement shall be in writing and dated; and b. if required by the State, the Sponsor shall reimburse the State for funds expended on this project and Sponsor shall assume the responsibility for any future State expenses for contracted services or materials related to the project for which a contract had been executed prior to the Sponsor's request to void the Agreement. Sponsor funds held by the State may be retained until this requirement is satisfied; and failure on the part of the Sponsor to comply with the conditions of this paragraph shall constitute a breach of this Agreement. Upon satisfaction of the conditions specified in Paragraph II-4 above, the State shall declare this Agreement null and void, and this Agreement shall have no force and effect, except that unexpended or unencumbered moneys actually deposited by the Sponsor and held with the State for project purposes shall be returned to the Sponsor within a reasonable time. In the event that state funds are unavailable, this Agreement shall automatically be voided and become of no force and effect, except that unexpended or unencumbered moneys actually deposited by the Sponsor and held with the State for project purposes shall be Page 2 of 12 returned to the Sponsor. Sponsor's share of project costs (Amount C) shall be paid in cash when requested by the State. At project close-out, Sponsor will be reimbursed for any amounts that exceed Sponsor's share. The Sponsor specifically agrees that it shall pay any project costs, which exceed the amount of financial participation agreed to by the State. It is further agreed that the Sponsor will reimburse the State for any payment or payments made by the State which are in excess of the percentage of financial assistance (Amount D) as stated in Paragraph II-2. Sponsor, by executing this Agreement certifies and, upon request, shall furnish proof to the State that it has sufficient funds to meet its share of the costs. The Sponsor grants to the State the right, upon advance written request during reasonable and regular business hours, to audit any books and records of the Sponsor to verify the funds. In addition, the Sponsor shall disclose the source of all funds for the project and its ability to finance and operate the project. Following the execution of this Agreement and upon written demand by the State, the Sponsor's financial obligation (Amount C) shall be due and payable to the State. Should the Sponsor fail to pay the obligation, either in whole or in part, within 30 days of written demand, the State may exercise its rights under Paragraph V-5 and/or V-6. Likewise, should the State be unwilling or unable to pay its obligation in a timely manner, the failure to pay shall be a breach and the Sponsor may exercise any rights and remedies it has at law or equity. The State shall reimburse the Sponsor, at the financial closure of the project, any excess funds provided by the Sponsor which exceed Sponsor's share (Amount C). PART III -Sponsor Responsibilities In accepting the Agreement, the Sponsor guarantees that: a. it will comply with Attachment A, Certification of Airport Fund, attached and made a part of this Agreement; and b. it will, in the operation of the facility, comply with all applicable state and federal laws, rules, regulations, procedures, covenants and assurances required by the State of Texas in connection with the Agreement; and the Airport or navigational facility which is the subject of this Agreement shall be controlled for a period of at least 20 years, and improvements made or acquired Page 3 of 12 under this project shall be operated, repaired and maintained in a safe and serviceable manner for the useful life of the improvements, not to exceed 20 years; and d. consistent with safety and security requirements, it shall make the airport or air navigational facility available to all types, kinds and classes of aeronautical use without unjust discrimination between such types, kinds and classes and shall provide adequate public access during the period of this Agreement; and e. it shall not grant or permit anyone to exercise an exclusive right for the conduct of aeronautical activity on or about an airport landing area. Aeronautical activities include, but are not limited to scheduled airline flights, charter flights, flight instruction, aircraft sales, rental and repair, sale of aviation petroleum products and aerial applications. The landing area consists of runways or landing strips, taxiways, parking aprons, roads, airport lighting and navigational aids; and it shall not permit non-aeronautical use of airport facilities, unless noted on an approved Airport Layout Plan, without prior approval of the State; and g. it shall not enter into any agreement nor permit any aircraft to gain direct ground access to the sponsor's airport from private property adjacent to or in the immediate area of the airport. Further, Sponsor shall not allow aircraft direct ground access to private property. Sponsor shall be subject to this prohibition, commonly known as a "through-the-fence operation," unless an exception is granted in writing by the State due to extreme circumstances; and h. it will acquire all property interest identified as needed for the purposes of this project and comply with all applicable state and federal laws, rules, regulations, procedures, covenants and assurances required by the State of Texas in the acquisition of such property interest; and that airport property identified within the scope of this project and Attorney's Certificate of Property Interests shall be pledged to airport use and shall not be removed from such use without prior written approval of the State; and the Sponsor shall submit to the State annual statements of airport revenues and expenses when requested; and all fees collected for the use of an airport or navigational facility constructed with funds provided under the program shall be reasonable and nondiscriminatory. The proceeds of such fees shall be used solely for the development, operation and maintenance of the airport or navigational facility. Sponsor shall not be required to pledge income received from the mineral estate to airport use unless state and/or federal funds were used to acquire the mineral estate of airport lands or any interest therein; and Page 4 of 12 k. an Airport Fund shall be established by resolution, order or ordinance in the treasury of the Sponsor, or evidence of the prior creation of an existing airport fund or a properly executed copy of the resolution, order, or ordinance creating such a fund, shall be submitted to the State. Such fund may be an account as part of another fund, but must be accounted for in such a manner that all revenues, expenses, retained earnings, and balances in the account are discernible from other types of moneys identified in the fund as a whole. All fees, charges, rents, and money from any source derived from airport operations must be deposited in said Airport Fund and shall not be diverted to the general revenue fund or any other revenue fund of the Sponsor for any purposes other than operation of the airport. All expenditures from the Airport Fund shall be solely for airport purposes. Sponsor shall be ineligible for a subsequent grant or loan by the State unless, prior to such subsequent approval of a grant or loan, Sponsor has complied with the requirements of this subparagraph; and the Sponsor shall operate runway lighting at least at low intensity from sunset to sunrise; and m. insofar as it is reasonable and within its power, Sponsor shall adopt and enforce zoning regulations to restrict the height of structures and use of land adjacent to or in the immediate vicinity of the airport to heights and activities compatible with normal airport operations as provided in Tex. Loc. Govt. Code Ann. §§ 241.001 et seq. (Vernon and Vernon Supp.). Sponsor shall also acquire and retain aviation easements or other property interests in or rights to use of land or airspace, unless sponsor can show that acquisition and retention of such interest will be impractical or will result in undue hardship to Sponsor. Sponsor shall be ineligible for a subsequent grant or loan by the State unless Sponsor has, prior to such subsequent approval of a grant or loan, adopted and passed an airport hazard zoning ordinance or order approved by the State; and n. it will provide upon request of the State, and the engineering or planning consultant, copies of any maps, plans, or reports of the project site, applicable to or affecting the above project; and o. after reasonable notice, it will permit the State and any consultants and contractors associated with this project, access to the project site, and will obtain permission for the State, consultants and contractors associated with this project, to enter private property for purposes necessary to this project. p. all development of an airport constructed with program funds shall be consistent with the Airport Layout Plan approved by the State and maintained by the Sponsor. A reproducible copy of such plan, and all subsequent modifications thereto, shall be filed with the State for approval; and The Sponsor, to the extent of its legal authority to do so, shall save harmless the State, the Page 5 of 12 State's agents, employees or contractors from all claims and liability due to activities of the Sponsor, the Sponsor's agents or employees performed under this Agreement. The Sponsor, to the extent of its legal authority to do so, shall also save harmless the State, the State's agents, employees or contractors from any and all expenses, including attorney fees which might be incurred by the State in litigation or otherwise resisting said claim or liabilities which might be imposed on the State as the result of such activities by the Sponsor, the Sponsor's agents or employees. The Sponsor and not the State shall, for all purposes, be the "Sponsor" of the project. Sponsor agrees to assume responsibility for operation of the facility in compliance with all applicable state and federal requirements including any statutes, rules, regulations, assurances, procedures or any other directives before, during and after the completion of this project. 4. The Sponsor shall have on file with the State a current and approved Attorney's Certificate of Airport Property Interests and Exhibit A property map. The Sponsor by execution of this grant certifies that it has implemented, or will implement during this project, an effective airport pavement maintenance-management program and it assures that it will use such program during the period of this Agreement. It will provide upon written request such reports on pavement condition and pavement management programs as the State determines may be useful. Failure to comply with this condition may make the Sponsor ineligible for future grants. PART IV -Nomination of the Agent The Sponsor designates the State as the party to receive and disburse all funds used, or to be used, in payment of the costs of the project, or in reimbursement to either of the parties for costs incurred. The State agrees to assume the responsibility to assure that all aspects of the grant are done in compliance with all applicable state and federal requirements including any statutes, rules, regulations, assurances, procedures or any other directives, except as otherwise specifically provided. The State shall, for all purposes in connection with the project identified above, be the Agent of the Sponsor. The Sponsor grants the State a power of attorney to act as its agent to perform the following services: Receiving/Disbursing Agent: a. accept, receive, and deposit with the State Treasury any and all project funds Page 6 of 12 granted, allowed, and paid or made available by the Sponsor, the State of Texas, or any other entity; b. pay to the Sponsor, from granted funds, the portion of any approved reasonable and eligible project costs incurred by the Sponsor that are in excess of the Sponsor's share. Paying Agent: c. receive, review, approve and pay invoices and payment requests for services and materials supplied in accordance with State approved contracts; Contracting Agent: d. advertise for professional engineering and/or planning services for, but not limited to, the preparation of planning studies, applications, plans and specifications for the above project; select the consultant, certify consultant selection procedures; provide notification of contract award for professional services; and execute, on behalf of the Sponsor, a professional services agreement as related to this project; e. administer Disadvantage Business Enterprises (DBE) and/or Historically Underutilized Business (HUB) Programs in accordance with state regulations. Contract Management Agent: f. exercise such supervision and direction of the project work, as the State reasonably finds appropriate. Where there is an irreconcilable conflict or difference of opinion, judgment, order or direction between the State and the Sponsor, any engineer, planner, contractor, or materialman, the State shall issue a written order, which shall prevail and be controlling; g. participate in conferences; and issue orders as it deems appropriate regarding project progress, including but not limited to Notices to Proceed, Stop Work Orders, and Supplemental Agreements h. coordinate review and approval of project plans, and conduct progress and final meetings. PART V -Recitals The State and Sponsor shall obtain an audit as required by State regulations. 2. The Sponsor, and not the State, shall be the contractual party to all construction and professional service contracts entered into for the accomplishment of this project. The power of attorney, as granted by the Sponsor to the State in Part IV -Nomination of Agent, is a limited power to perform acts in connection with airport improvements as Page 7 of 12 specified in or necessitated by this Agreement. The Sponsor agrees to pursue and enforce contract items, which are required by federal and/or state regulations, laws and orders to insure satisfactory performance of contract vendors. Such items include, but are not limited to, bid bonds, payment bonds, and performance bonds. Pursuit and enforcement of contract items may require litigation and other remedies of law. 4. This Agreement is executed for the sole benefit of the contracting parties and is not intended or executed for the direct or incidental benefit of any third party. The State shall not be a party to any other contract or commitment, which the Sponsor may enter into or assume, or have entered into or have assumed, in regard to the above project. If the Sponsor fails to comply with the conditions of the grant, the State may, by written notice to the Sponsor, suspend the grant in whole or in part. The notice of suspension shall contain the following: a. The reasons for the suspension and the corrective action necessary to lift the suspension; b. A date by which the corrective action must be taken; Notification that consideration will be given to terminating the grant after the corrective action date. In the case of suspension or termination, the Sponsor may request the State to reconsider the suspension or termination. Such request for reconsideration shall be made within 45 days after receipt of the notice of suspension or termination. This Agreement is subject to the applicable provisions of the V.T.C.A. Transportation Code, Title 3, Chapters 21-22, et seq., (Vernon and Vernon Supp.), and the Airport Zoning Act, Tex. Loc. Govt. Code Ann. §§ 241.001 et seq. (Vernon and Vernon Supp.). Failure to comply with the terms of this Agreement or with the rules and statutes shall be considered a breach of this contract and will allow the State to pursue the remedies for breach as stated below. Of primary importance to the State is compliance with the terms and conditions of this Agreement. If, however, after all reasonable attempts to require compliance have failed, the State finds that Sponsor is unwilling and/or unable to comply with any of the terms and conditions of this Agreement, the State, may pursue any of the following remedies: (1) require a refund of any financial assistance money expended pursuant to the Agreement, (2) deny Sponsor's future requests for aid, 3) request the Attorney General to bring suit seeking reimbursement of any financial assistance money expended on the project pursuant to the Agreement, provided however, these remedies shall not limit the State's authority to enforce Page 8 of 12 its rules, regulations or orders as otherwise provided by law, (4) declare this Agreement null and void, or (5) any other remedy available at law or in equity. b. Venue for resolution by a court of competent jurisdiction of any dispute arisingunderthetermsofthisAgreement, or for enforcement of any of the provisions of this Agreement, is specifically set by Agreement of the parties in Travis County, Texas. The State reserves the right to amend or withdraw this Agreement at any time prior to acceptance by the Sponsor. The acceptance period cannot be greater than 30 days after issuance unless extended by the State. 8. The Sponsor's acceptance of this Offer and ratification and adoption of the Agreement shall be evidenced by execution of this Agreement by the Sponsor. The Agreement shall comprise a contract, constituting the obligations and rights of the State of Texas and the Sponsor with respect to the accomplishment of the project and the operation and maintenance of the airport. The Agreement shall become effective upon execution of the Agreement by the State and shall remain in full force and effect for a period of at least 20 years. 9. This Agreement constitutes the full and total understanding of the parties concerning their rights and responsibilities in regard to this project and shall not be modified, amended, rescinded or revoked unless such modification, amendment, rescission or revocation is agreed to by both parties in writing and executed by both parties. 10. All commitments by the Sponsor and the State are subject to constitutional and statutorylimitationsandrestrictionsbindingupontheSponsorandtheState (including §§ 5 and 7 of Article 11 of the Texas Constitution, if applicable) and to the availability of funds which lawfully may be applied. 11. The state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under the contract or indirectly through a subcontract under the contract. Acceptance of funds directly under the contract or indirectly through a subcontract under this contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. An entity that is the subject of an audit or investigation must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit. Page 9 of 12 Part VI -Acceptance of the Sponsor The City of Denton, Texas does ratify and adopt all statements, representations, warranties, covenants and agreements constituting the described project and incorporated materials referred to in the Agreement, and does accept the Offer, and agrees to all of the terms and conditions of the Agreement. r~ i - - Executed this < < day of ~~ ~~~^-~ , 20~. The City of Denton, Texas Sponsor e~f;~ Wifiess Signature Sponsor Signature 2vi ; o r YGiw ~l ~Go ~~/./ •Ze~ :y x. d ~ ~fl~-.C1P+~11~ Lvti Wifiess Title Sponsor Title Certificate of Sponsor's Attorney I,~=)C~~(1r1 1`1'1 \C~~'1T ,acting as attorney for ~ Y~(3 Texas, do certify that I hav lly examined the Agreement and the pro eedings taken by the Sponsor relating, and find that the manner of acceptance and execution, of the Agreement by the Sponsor, is in accordance with the laws of the State of Texas. Dated at 1/F~+n.'~Qy~ ,Texas, this ~_ day of< ~~GW1~~r , 2008. Wifiess Signature ~ Attorney natu orb r i ~' ~ Wi ess Title Page 10 of 12 Part VII -Acceptance of the State Executed by and approved for the Texas Transportation Commission for the purpose and effect of activating and/or carrying out the orders, established policies or work programs and grants heretofore approved and authorized by the Texas Transportation Commission. STATE OF TEXAS TEXAS DEPARTMENT OF TRANSPORTATION a`~ ~s~ David S. Fulton, Director Aviation Division Texas Department of Transportation Date: ~ ~/ ~7 ~~ Page 11 of 12 ATTACHMENT A CERTIFICATION OF AIRPORT FUND The Sponsor does certify that an Airport Fund has been established for the Sponsor, and that all fees, charges, rents, and money from any source derived from airport operations will be deposited for the benefit of the Airport Fund and will not be diverted for other general revenue fund expenditures or any other special fund of the Sponsor and that all expenditures from the Fund will be solely for airport purposes. Such fund may be an account as part of another fund, but must be accounted for in such a manner that all revenues, expenses, retained earnings, and balances in the account are discernible from other types of moneys identified in the fund as a whole. The City of Denton, Texas Sponsor) By: Titl Page 12 of 12 Date: ~~~~ $' CERTIFICATION OF PROJECT FUNDS 1, Bryan Langley Director of Finance Name) (Title) do certify that sufficient funds to meet the City of Denton share of Sponsor Name) project costs as identified for the project and will be available in accordance with the schedule shown -below: SPONSOR FUNDS Source Amount Date Available Gas Well Revenue Funds $50,000 June 17, 2008 City of Denton, Texas, By ; Title: Director of Finance Date: h 7 f t . DESIGNATION OF SPONSOR'S AUTHORIZED REPRESENTATIVE I, George C. Campbell City Manager , Name) (Title) with the City of Denton designate Tim E. Whitman, Airport Manager Sponsor Name) (Name ,Title) as the City of Denton's authorized representative for the Airport Business Plan project, Sponsor Name) who shall have the authority to make approvals and disapprovals as required on behalf of the City of Denton Sponsor Name) City of Denton, Texas Sponsor) Stgnatur George C. Camp ell Title: City Manager June 17, 2008 DESIGNATED REPRESENTATIVE Mailing Address: Denton Airport rpo enton, PhysicaVOvernight Address: Denton Airport 5000 Airport Rd., Denton, TX 76207 Telephone Number: Fax Number: 940/349-7744 940/349-7289 E-Mail Address: tim.whitman@cityofdenton.com ALL GRANT AGREEMENTS ARE SENT BY OVERNIGHT MAIL DESIGNATION OF SPONSOR'S CONSULTANT SELECTION COMIVIITTEE 1, _ George Campbell City Manager 1`l~e) (Title) 'with the City of Denton designate the following named individuals as theSponsorName) Consultant Selection committee, for the Denton Airport Business Plan. The committee isauthorizedtodetermineselectioncriteria, review qualifications and proposals of candidate firms,conduct interviews, if necessary, and select a firm for the award of the design contract, based onaconsensusrankingbythecommitteemembers. The decision of the selection committee will befinalunlesssomediscrepancyisdeterminedtohaveoccurredintheselectionprocess. Name Title (if appropriate): 1. Susan Croff Utilit Process/ unlit Control Auditor 2. Kenneth Banks PhD Mana er Division on Environmental ualit 3. Mark Nelson Director of Trans ortation The City of Denton has caused this to be duly executed in its name, this 30"' day ofSeptember2008. City of Denton Texas Sponsor) l By: - Title: City Manager