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
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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