1990-075 ORDINANCE NO. ~--"
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A JOINT COST
SHARING AGREEMENT WITH THE TEXAS STATE DEPARTMENT OF HIGHWAYS AND
PUBLIC TRANSPORTATION FOR LANDSCAPING ALONG U.S. HIGHWAY 77 AT ITS
INTERSECTION WITH INTERSTATE HIGHWAY 35E IN DENTON; AUTHORIZING THE
EXPENDITURE OF FUNDS THEREFOR; AND DECLARING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION I. That the City Manager is hereby authorized to
execute a joint cost sharing agreement with the Texas State
Department of Highways and Public Transportation for landscaping
along U.S. Highway 77 at its intersection with Interstate Highway
35E in Denton.
SECTION II. That the City Council hereby authorizes the
expenditure of funds in the manner and amount as specified in the
agreement.
SECTION III. That this ordinance shall become effective
immediately upon its passage and approval.
PASSED AND APPROVED this the/~ay/"~ of ~, 1990.
BOB TLEBERRY, MAYO~ ~
/
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
DEBRA ADAMI DRAYOVITCH, CITY ATTORNEY
~0scapord./~
THE STATE OF TEXAS
COUNTY OF TRAVIS
THIS AGREEMENT is made by and between the State of Texas,
acting by and through the State Department of Highways and Public
Transportation, hereinafter called the "State", and the City of
Denton, acting through its duly authorized off.%Gials, as evidenced
by~ Resol~Ltio3~. or Ordinance Number ~-- ~--- , dated
~ /~,/~ , hereinafter called the "City".
W I TNE S SETH
WHEREAS, the State owns and maintains a system of highways,
including U.S. Highway 77, in Denton County, Texas, for public
use and benefit; and
WHEREAS, the City has requested State participation in a
Landscape Cost Sharing Program project along U.S. Highway 77, at
the intersection of Interstate 35E within the City of Denton,
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 contribution of $37,204.50, which sum
includes a cash contribution of $23,875.50, and a non-cash
contribution of $13,329.00 toward the development of the Project;
and
WHEREAS, the Project will be executed by the State in two
Phases: the Requisition Phase, and the Construction Phase;
WHEREAS, State Highway and Public Transportation Commission
Minute Order 89228, dated August 29, 1989, 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 combined with the cash contribution from the City and
utilized to purchase required landscape material, and to provide
for the installation of boring and casing, pavers, drainage
improvements and curb and gutter all through a subsequent
construction contract administered by the State;and
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:
AGREEMENT
Page 1 of 8
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, details, drawings,
specifications and estimates as may be required by the State to
prepare detailed requisitions for required materials under the
Requisition Phase of the Project, and to fully control the
conduct of the construction contract during the Construction
Phase of the Project. The Project Design Plan shall be furnished
in the format and to the time schedule as required by the State
to accomplish both phases of the Project. The Project Design
Plan shall be incorporated into this Agreement by reference.
ARTICLE 3. Project Funding.
The total estimated cost of the Project is $74,409.00, and
shall be funded jointly by the State and the City. State funds
in an amount estimated not to exceed $37,204.50 will be combined
with the cash contribution of $23,875.50 from the City, and
utilized to provide for the purchase of material through the
Requisition Phase and the installation of boring, drainage,
paver, curb and gutter improvements in the Construction Phase.
The City's total contribution is $37,204.50 and includes a cash
contribution of $23,875.50. The City's non-cash contribution of
$13,329.00 represents the agreed, non-cash, fair-market values of
$5,000.00 for installing all material furnished by the State; of
$2,500.00 for performing maintenance and establishment activities
for a period of 24 consecutive months; and of $5,829.00 for
furnishing the Project Design Plan.
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 8
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
its option and expense, to participate in the
defense of any suit, without relieving the City of
any obligation hereunder.
3. Provide a check, payable to the State Department
of Highways and Public Transportation, in the full
amount of $23,875.50. The check is due the State
at the time of execution of the Agreement by the
City.
4. Provide all labor, equipment and incidentals
necessary to provide for the installation of plant
material, mulch and topsoil furnished by the State
during the Requisition Phase, and in accordance
with the Project Design Plan.
5. Provide all labor, equipment and incidentals
necessary to install the irrigation system
components furnished by the State and establish a
fully operational irrigation system in accordance
with the Project Design Plan.
6. Perform, to the satisfaction of the State, Project
maintenance and establishment activities on the
Project for a period of 24 consecutive months
following the completion of the Requisition Phase
and the Construction Phase. Maintenance and
establishment shall include, but shall not be
limited to the following activities:
(a) Pruning, fertilizing and disease control as
may be reasonably required to insure the
continued viability and establishment of the
plant material.
(b) Maintenance of planting beds and basins
necessary to maintain watering rings and to
insure plant basins and beds are reasonably
free of vegetative growth which would affect
the growth of plants.
Page 3 of 8
(c) Monitoring, adjustment and repair of the
irrigation system, including all repair parts
as may be required.
(d) Replacement of plant material as necessary to
insure the continued viability of the
Project.
7. Provide, erect and maintain all Barricades, Signs
and Traffic Handling Devices to the satisfaction
of the State as may be requried to protect the
safety of the travelling public while performing
any work on the Project.
B. The State Agrees to:
1. Obligate State funds in the amount of $37.204.50
which will be combined with the cash contribution
from the City and utilized to provide for the
Requisition Phase and the Construction Phase of
the Project.
2. Prepare and submit requisitions for plant
material, mulch, topsoil and irrigation system
components in accordance with the Project Design
Plan furnished by the City.
3. Furnish plant material, mulch, topsoil and
irrigation system components to the City.
4. Schedule the Construction Phase of the Project for
a statewide construction letting date mutually
agreeable to the State and the City but at the
final option of the State after receipt of an
acceptable Project Design Plan from the City.
5. Administer the Construction Phase of the Project
during construction.
6. Cooperate with the City in determining any
Barricades, Signs and Traffic Handling Devices
needed during the City's conduct of the Project.
ARTICLE 5. Overruns/Underruns.
The total amount of cash available to provide for the
Requisition Phase of the Project is $13,000.00. The total amount
of cash available to perform the Construction Phase of the
Project is $48,080.00. The total cash available from the State
is $37,204.50, and the total cash available from the City is
$23,875.50.
Page 4 of 8
Based upon the amount of cash available to perform both
phases of the Project, the State's pro-rata (cash) share of the
Project is 60.92% and the City's pro-rata (cash) share of the
Project is 39.08%.
1. If, upon receiving bids for required material in the
Requisition Phase, the cumulative total of the bid or
bids exceeds $13,000.00, the State will promptly notify
the City. If, in the opinion of the State and the
City, but at the final option of the State, it is
determined that it is in the best interest of the
Project to provide additional funds required to satisfy
the overrun, the State and the City will share the cost
of the overrun on a pro-rata (cash) basis. The State
will provide 60.92% of the overrun and the City will
provide 30.08% of the overrun.
2. If, upon receiving bids for required material in the
Requisition Phase, the cumulative total of the bid or
bids does not exceed $13,000.00, the State will
recommend award of the bid or bids. Unless, in the
sole opinion of the State, it is determined that the
purchase of additional material with any remaining
funds is in the best interest of the Project, the State
will not purchase material in excess of that requested
in the City's proposal and as shown in the Project
Design Plan. Any overruns which occur during the
purchase of any additional material shall be shared by
the State and the City on the above determined pro-rata
(cash) basis.
3. If, upon receiving bids for the Construction Phase of
the Project, the lowest bid exceeds $48,080.00, the
State will promptly notify the City. If, in the
opinion of the State and the City, but at the final
option of the State, it is determined that it is in the
best interest of the Project to provide additional
funds required to satisfy the overrun, the State and
the City will share the cost of the overrun on the
above determined pro-rata (cash) basis.
4. If, upon receiving bids for the Construction Phase of
the Project, the lowest bid does not exceed $48,080.00,
the State will recommend award of the contract. If
during execution of the contract it is determined that
sufficient funds are not available to complete the
work, the State and the City shall share in the cost of
the additional funds necessary to complete the work on
the above determined pro-rata (cash) basis.
Page 5 of 8
5. If, upon completion of the Requisition Phase and
the Construction Phase of the Project, and after
final project closeout and accounting has been
accomplished by the State, it is determined that
all available cash funds were not fully utilized,
the State will return the above determined pro-
rata (cash) share of any unused funds to the City.
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, cost or obligations herein
shall be enacted by written amendment. All amendments to this
Agreement must be executed by both parties within the contract
period specified in Article 1.
ARTICLE 8. 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 attached 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.
Page 6 of 8
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 (SDHPT 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 furhish the State with a completed Certificate of Insurance,
(SDHPT Form 20.102), and shall insure the contractor or
contractors maintain such insurance during the term of the
Agreement.
ARTICLE 11. Gratuities.
State Department of Highways and Public 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 State Department of Highways and Public
Transportation Engineer-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.
Page 7 of 8
IN TESTIMONY WHEREOF, the State and the City have executed duplicate
counterparts to effectuate this Agreement.
THE CITY OF DENTON THE STATE OF TEXAS
~~~~// Certified as being executed for
the purpose and effect of
By: activating and/or carrying out
the orders, established policies
or work programs heretofore
approved and authorized by the
Lloyd Harrell, City Manager State Highway and Public
(Typed Name and Title) Transportation Commission
Date: 3une 4~ 1990 By: ~~
~/"Henr~ A. Thomason, Jr., P.E.
Deputy Director, Field Operations
Page 8 of 8
STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION
DENTON County MINUTE ORDER Page 1 of 1 Pages
District No. DALLAS (18)
WHEREAS, in DENTON COUNTY, on US HIGHWAY 77 at the intersection
of Interstate Highway 35E, the City of Denton desires to perform a
Landscape Cost Sharing Program project, and has committed a total
contribution of $37,204.50 toward the completion of the project, which
sum includes a cash contribution of $23,875.50, and a non-cash
contribution of $13,329.00 which represents the agreed, fair-market,
non-cash value of providing labor and equipment to install material
furnished by the Department~ fo~ providing the project design plan, and
for providing project maintenance for a period of 24 months; and
WHEREAS, the State Department of Highways and Public
Transportation desires to cooperate in this endeavor by obligating
State funds in the amount of $37,204.50 which will be combined with the
cash contribution from the City and utilized to purchase required
material which will be furnished to the City for installation and
maintenance, and for the installation of necessary drainage
improvements, boring, curb and gutter, and pavers by a construction
contract administered by the Department;
NOW, THEREFORE, IT IS ORDERED that the Engineer-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 Landscape Cost
Sharing Program, under Commission Minute Order 88295, at a State cost
estimated not to exceed $37,204.50.
EXHIBIT B
(Ti'tle) Chie'-{ Engineer, ~ntenance Approved lJ~puty Director
and Operations Divisioj~.
Engi~r-Director
Minute Number
Date Passed
COMMISSION STATE DEPARTMENT OF HIGHWAYS ENGINEER-DIRECTOR
ROBERT H. DEDMAN, CHAIRMAN AND PUBLIC TRANSPORTATION ARNOLD W OLIVER, P.E.
RAY STOKER, JR. P.O. BOX 306"/
WAYNE B. DUDDLESTEN DALLAS, TEXAS ?$221-3067
(214) 320~100
July 9, 1990
CONTACT'
Mr. Robert Tickner
Superintendent of Parks
City of Denton
215 E. McKinney
Denton, TX 76201
Dear Mr. Tickner:
Enclosed is one copy of the fully executed agreement for your files.
The project is scheduled for an September letting (with anticipated con-
struction beginning in late October). This is a tentative date as the
cancellation of the July and August letting dates has required the re-
scheduling of many projects to September.
If you have any other questions, please call Mr. Patrick Haigh at
(214) 320-6205.
Sincerely,
lhomas L. Kelley, P. F.V
District Maintenance [n§ineer
Enclosure