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1993-099E:\WPDOCS\ORD\LANDSCAP.O ORDINANCE NO. _?3-099 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH THE STATE OF TEXAS, ACTING BY AND THROUGH THE TEXAS DEPARTMENT OF TRANSPORTATION, FOR PARTICIPATION IN A LANDSCAPE COST SHARING PROGRAM PROJECT ON FM 2181 FROM INTERSTATE HIGHWAY 35 TO BENT OAK DRIVE; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION I. That the city manager is authorized to execute an agreement between the'City of Denton and the State of Texas, acting by and through the Texas Department of Transportation, for con- struction of a Landscape Cost Sharing Program project on FM 2181 from Interstate Highway 35 to Bent Oak Drive, under the terms and conditions contained in said agreement, which is attached hereto and made a part hereof. SECTION II. That the City Council hereby authorizes the expen- diture of funds and provision of a non-cash contribution in the manner and amount as specified in the agreement. SECTION III. That this ordinance shall become effective immed- iately upon its passage and approval. PASSED AND APPROVED this the ! S day of IJACO , 1993. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPMVED AS TO LEGAL FORM: DEBRA A. DRAYOVITCH, CITY ATTORNEY BY: ic siC 'h464 Texas Department of Transportation P.O. BOX 3067 • DALLAS, TEXAS 75221-3067 • Januray 10, 1994 Mr. Lloyd Harrell City Manager City of Denton 215 E. McKinney Denton, TX 76201 Dear Mr. Harrell: J9 iJJ'Y_.~ CLN-l ON Enclosed is an executed counterpart, for the City's files, of the Landscape Cost Sharing Agreement for F.M. 2181 (Teasley Lane). The specialty concrete, (the seed), and the PVC sleeves are currently included on the state's contract which is scheduled for the February 1994 letting. The other items which the State will install under the agreement will be included in a landscape development project to be let at a later date. If you have any questions, please contact Patrick Haigh at (214) 320-6205. Sincerely, Curtis L. Oppermann, Jr., P.E. Director of Maintenance Enclosure An Equal Opportunity Employer THE STATE OF TEXAS § COUNTY OF TRAVIS § THIS AGREEMENT is made by and between the State of Texas, acting by and through the Texas Department of Transportation, hereinafter called the "State", and the City of Denton, acting through its duly authorized officials, as evidenced by Resolution or ordinance Number 93-099 , dated JUNE 1, 1993 , hereinafter called the "City". W I T N E S S E T H WHEREAS, the State owns and maintains a system of highways, including FM 2181 in Denton County, Texas for public use and benefit; and WHEREAS, the City has requested State participation in a 1992-1993 Landscape Cost Sharing Program project on FM 2181 from Interstate Highway 35 to Bent Oaks Drive, hereinafter called the "Project", and as shown on the attached EXHIBIT A; and WHEREAS, the City has committed to cooperating with the State by providing a total non-cash contribution of $125,531.00 toward the completion of the Project, which sum represents the agreed, fair-market non-cash value for providing the Project Design Plan, furnishing and installing the irrigation system, furnishing and installing trees, and for performing Project maintenance and establishment activities for a minimum period of twenty-four months; and WHEREAS, Texas Transportation Commission Minute Order 102544, dated July 29, 1993, attached hereto and labeled EXHIBIT B authorizes the State to cooperate with the City in the development of the Project by providing State funds which will be used to execute a construction contract to furnish and install the colored-texturized concrete, turf, groundcover, bedding plants, and the PVC conduits for the irrigation system. NOW THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties hereto be by them respectively kept and performed as hereinafter set forth, the State and the City do mutually agree as follows: Page 1 of 7 A G R E E M E N T ARTICLE 1. Term of Agreement. This Agreement becomes effective when finally executed (signed) by the State and shall terminate upon satisfactory completion of the work as called for in the Project Design Plan and as stipulated within this Agreement, unless otherwise terminated as provided hereinafter. ARTICLE 2. Project Design Plan. The City shall prepare and furnish the Project Design Plan. The Project Design Plan shall contain plans, specifications, and estimates, as required by the State to execute a contract through the Department's state-wide construction system. The Project Design Plan shall be incorporated into this Agreement by reference. ARTICLE 3. Project Funding. The total estimated cost of the Project is $248,531.00, and shall be funded jointly by the State and the City. State funds in an amount estimated not to exceed $123,000.00 will be utilized to provide for the installation of the Project through a construction contract or contracts administered by the State. The City's total contribution of $125,531.00 represents the agreed, fair-market, non-cash values of $17,340.00 for furnishing the Project Design Plan, $47,306.00 for furnishing and installing the irrigation system, $30,815.00 for furnishing and installing the trees, and $30,070.00 for providing Project maintenance and establishment activities for a minimum of twenty-four consecutive months. ARTICLE 4. Responsibility of the Parties. A. The City agrees to: 1. Indemnify and save harmless the State, its agents and employees, from all suits, actions or claims and from all liability and damages for any and all injuries or damages sustained by any person, or by any abutting, adjoining or other property in consequence of any neglect in the performance, or failure of performance of the City, its agents and employees under this Agreement, to the extent allowed by State Law. Page 2 of 7 2. Indemnify, defend and hold the State harmless from any and all claims and lawsuits by third parties arising from, or incident to the performance, or failure of performance of the City, its officers, employees or agents under this Agreement to the extent allowed by State Law. The City shall defend all suits brought upon all such claims and lawsuits and pay all costs and expenses incidental thereto, but the State shall have the right, at it's option and expense, to participate in the defense of any suit, without relieving the City of any obligation hereunder. 3. Furnish the Project Design Plan and Specifications for the construction phase of the contract. 4. Furnish all materials, labor and incidentals required to install the irrigation system and the trees and to perform landscape maintenance and establishment activities for a minimum of twenty- four consecutive months, following the completion of the construction contract. 5. Replace plant material as may be reasonably required to insure the project functions as intended during the twenty-four month establishment period. 6. Furnish, erect and maintain any barricades, signs and traffic handling devices, in accordance with the latest Manual of Uniform Traffic Control Devices, and to the satisfaction of the State, as may be required to protect the safety of the travelling public while performing any work on the project under this agreement. B. The State agrees to: 1. obligate State funds in the amount of $123,000.00 which will be utilized to execute a construction contract or contracts which will provide for the furnishing and installation of the colored- texturized concrete, turf, ground cover, bedding plants, and the PVC conduits for the irrigation system. 2. Schedule the installation of the Project for the first available construction letting mutually acceptable to the State and the City, but at the final option of the State. 3. Administer the Contract during construction. Page 3 of 7 4. Cooperate with the City to determine requirements for barricades, signs and traffic handling devices to be used by the City during the installation of the trees and the irrigation system for the Project. ARTICLE 5. Overruns/Underruns. The State will make recommendation of award for the bid or bids received for the installation of the Project as follows: 1. If the lowest bid or bids exce, State, at its sole option, may the City to revise the Project to insure that available funds reschedule the Project for the construction letting. sds $123,000.00, the reject the bid, request Design Plan as necessary are not exceeded, and next available 2. If the lowest bid or bids does not exceed $123,000.00, the State will recommend award of the bid or bids. The State will not schedule any additional work on the Project to insure that the amount of State funds obligated for the Project is fully expended unless, in the State's sole opinion, it is determined that the performance of additional work will be in the best interest of the Project. Any additional work, if performed by the State, will be performed in accordance with existing regulations and procedures relating to additional work orders and/or field changes. ARTICLE 6. Disputes. Should disputes arise as to the party's obligations under this Agreement, the State's decision shall be final and binding. ARTICLE 7. Amendments. Changes in time frame, character, cos shall be enacted by written amendment. All Agreement must be executed by both parties period specified in Article 1. t or obligations herein amendments to this within the contract Page 4 of 7 ARTICLE S. Successors and Assigns. The State and the City shall not assign or otherwise transfer its rights and obligations under this Agreement except with prior written consent of the other party, and any prohibited assignment or transfer shall be null and void. ARTICLE 9. Remedies. Violation or breach of contract terms by the City shall be grounds for termination of the Agreement, and any increased cost arising from the City's default, breach of contract or violation of terms shall be paid by the City. This Agreement shall not be considered as specifying the exclusive remedy for any default, but all remedies existing at law and in equity may be availed of by either party and shall be cumulative. ARTICLE 10. Insurance. At the time of execution (signature) of the Agreement by the City, the City shall attach required insurance documentation to each Agreement counterpart. If the City is a self-insured entity and performs any work on the Project with City Forces, the City shall extend the protection of its self-insurance to the State for any and all damages and injuries arising from the City's performance under this Agreement. If the City is not a self-insured entity and performs any work on the Project with City Forces, the City shall furnish the State with a completed Certificate of Insurance (TxDOT Form 20.102), and label such documentation EXHIBIT C. If the City performs any work on the Project through a contractor or contractors selected through the City's low-bid procedure, the City shall require its contractor or contractors to furnish the State with a completed Certificate of Insurance, (TxDOT Form 20.102), and shall insure the contractor or contractors maintain such insurance during the term of the Agreement. Page 5 of 7 ARTICLE 11. Gratuities. Texas Transportation Commission policy mandates that employees of the Department shall not accept any benefits, gifts or favors from any person doing business or who reasonably speaking may do business with the State under this contract. The only exceptions allowed are ordinary business lunches and items that have received advanced written approval of the Texas Department of Transportation Executive Director. Any person doing business with or who may reasonably speaking do business with the State under this contract may not make any offer of benefits, gifts or favors to Departmental employees, except as mentioned hereabove. Failure on the part of the City to adhere to this policy may result in the termination of this contract. ARTICLE 12. Termination. This Agreement may be terminated by any of the following conditions: A. By mutual agreement and consent of both parties. B. By either party upon thirty days written notice to the other party. C. By either party, upon the failure of the other party to fulfill its obligations as set forth in this Agreement. D. By satisfactory completion of all services and obligations described herein. Should the City terminate this Agreement, as prescribed hereabove, the City shall, at the option of the State, reimburse any reasonable costs incurred by the State. REMAINDER OF PAGE LEFT BLANK Page 6 of 7 IN TESTIMONY WHEREOF, the State and the City have executed duplicate counterparts to effectuate this Agreement. THE CITY OF DENTON By: (Signature) Lloyd V. Harrell, City Manager (Typed Name and Title) Date: 10-27-93 THE STATE OF TEXAS Certified as being executed for the purpose and effect of activating and/or carrying out the orders, established policies or work programs heretofore approved and authorized by the Texas Transportation Commission By: Robert Cuellar, P.E. Deputy Executive Director, Transportation Planning and Development Date: /1--- Z- F - ?-3 Page 7 of 7 's • ~ ~ 1, . 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EL CIiLITO / I - i - i ' i I . fi. 194" -UMIL__- GRANADA I / I 1830 I SANDERS / j - Z li / ~ ` I Roark 'i' ~ / 111 - - -T RYAN y_'_-___ JI g T N Co ROBERSON EXHIBIT B TEXAS TRANSPORTATION COMMISSION DENTON -County MINUTE ORDER Page 1 of 1 Pages District No. DALLAS (18) WHEREAS, in DENTON COUNTY, along FARM TO MARKET ROAD 21$1 from Interstate Highway 35E to Bent Oaks Drive within the City of Denton the City of Denton (the City) desires to perform a 1992-1993 Landsca,pe Cost Sharing Program project, and has committed a total non-cash contribution of $125,531.00 toward the completion of the project, which sum represents the agreed, fair-market, non-cash value of providing the Project Design Plan, of furnishing and installing the irrigation system and trees in accordance with the Project Design Plan, and of project and site maintenance for a minimum period of 24 consecutive months following the completion of a construction contract administered by the Texas Department of Transportation (the Department); and WHEREAS, the Department desires to cooperate in this endeavor by obligating State funds in the amount of $123,000.00 and used to provide for the installation of colored-texturized concrete surfacing, conduits for the irrigation system, turf, groundcover and bedding plantings through a construction contract administered by the Department in accordance with the Project Design Plan and the provisions of the Agreement with the City; NOW, THEREFORE, IT IS ORDERED that the Executive Director will accept this offer with gratitude and enter into any necessary agreements with the City of Denton for the completion of the work, financing the State costs with funds authorized by the 1992-1993 Landscape Cost Sharing Program, at a State cost estimated not to exceed $123,000.00; and IT IS FURTHER ORDERED that upon the expiration of the 24 consecutive month maintenance responsibility of the City of Denton under this project, all subsequent and continuing maintenance, repair and replacement needs of the project shall be provided by the City of Denton. Submitted by: Examined and recommended by: Director of Maintenance & Operations Approved Associate Executive Director Executive Director Minute Number 102544 Date Passed JUL 29 93