1990-074AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT
WITH THE STATE OF TEXAS, ACTING BY AND THROUGH THE STATE DEPARTMENT
OF HIGHWAYS AND PUBLIC TRANSPORTATION, FOR PARTICIPATION IN A
LANDSCAPE COST SHARING PROGRAM PROJECT ALONG US 380, FROM 1-35 TO
MALONE STREET; 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 State Department of Highways and Public
Transportation, for construction of a Landscape Cost Sharing
Program project along US 380, from 1-35 to Malone Street, 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
expenditure 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
immediately upon its passage and approval.
PASSED AND APPROVED this the /~day of ~__, 1990.
BOB CASTLEB ~
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: ~~L ~~
APPR~"AS~TO LEGAL- ~O~:
DEBRA A. DRAYOVITCH, CITY ATTORNEY
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 of~ficialsj as evidenced
by Resolution or Ordinance Number ~F~-O~~ , dated
/~//~ , hereinafter called the"~City"~
WITNES SET}{
WHEREAS, the State owns and maintains a system of highways,
including US 380, 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 US 380, from IH 35
to Malone Street, 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 $173,181.50 which
includes a cash contribution of $1,257.50, and a non-cash
contribution of $171,924.00 toward the development of the
project; and
WHEREAS, State Highway and Public Transportation Commission
Minute Order 90101, dated March 29, 1990, 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 utilized for the installation of a Highway Landscape
Project through a construction contract administered by the
State, and for the installation of concrete pavers through a
subsequent construction contract administered by the State;
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
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.
Page 1 of 8
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
fully control the installation of the Highway Landscape Project,
through a State construction contract, and the installation of
concrete pavers through a subsequent State construction contract.
The Project Design Plan shall be furnished in the format and to
the time schedules as required by the State for each construction
contract. The Project Design Plan shall be incorporated into
this Agreement by reference.
ARTICLE 3. Project Funding.
The total estimated cost of the Project is $346,363.00,
and shall be funded jointly by the State and the City. State
funds in an amount estimated not to exceed $173,181.50 will be
combined with the cash contribution of $1,257.50 from the City
and utilized to provide for the construction of a Highway
Landscaping project through a construction contract administered
by the State at a cost estimated not to exceed $134,527.00,and to
provide for the installation of concrete pavers through a
subsequent construction contract administered by the State at a
cost estimated not to exceed $39,912.00. The City's total non-
cash contribution is $171,924.00 and represents the agreed,
fair-market, non-cash values of $24,164.00 for furnishing the
project design plan, $45,300.00 for providing for site
establishment and maintenance for a period of two consecutive
years, $47,000.00 furnishing and placing topsoil, and $55,460.00
for the installation of an irrigation system, including required
boring and casing activities.
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
it's option and expense, to participate in the
defense of any suit, without relieving the City of
any obligations hereunder.
3. Provide a check, payable to the State Department
of Highways and Public Transportation in the
amount of $1,257.50. The check shall be due the
State at the time of execution (signature) of the
Agreement by the city.
4. Provide the Project Design Plan.
5. Provide and place all required topsoil for the
project.
6. Provide an irrigation system for the project.
7. Perform, to the satisfaction of the State, project
and site maintenance for a period of two (2)
consecutive years. Maintenance shall begin after
the contract administered by the state is
completed. Maintenance shall include but 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 the plant basins to maintain
watering rings and to insure that plant
basins are free of vegetative growth which
would affect the
growth of the plants.
(c) Providing water in the amount and to the
frequency required to insure the continued
viability and establishment of the plant
material.
(d) Replacement of the plant material as may be
reasonably required to insure the Project
functions as intended during the term of the
agreement.
Page 3 of 8
8. Furnish, erect and maintain any barricades, sign
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 whil performing any work on the
Project during this Agreement
B. The State agrees to:
1. Obligate State funds in the amount of $133,269.50
will be combined with the City cash contribution
of $1,257.50 and utilized to provide for the
installation of the highway landscape project
through a construction contract administered by
the state.
2. Obligate State funds in the amount of $39,912.00
which will be utilized to provide for the
installation of concrete pavers through a
subsequent construction contract administered by
the State.
3. Deposit the cash received from the City into
escrow.
4. Schedule the highway landscape project for the
first available construction letting, consistent
with the completion of the Project Design Plan by
the City and in accordance with the processing
schedule for highway improvement projects.
5. Include the installation of concrete pavers as a
bid item in a subsequent construction contract
selected by the State.
6. Administer the construction contracts as necessary
to complete the highway landscape project and the
concrete paver installation in accordance with the
Project. Design Plan.
7. Coordinate with the City to determine the
requirements relating to barricades, signs and
traffic handling devices as may be required during
the establishment and maintenance period performed
by the City.
Page 4 of 8
ARTICLE 5. Overruns/Underruns.
The total amount of cash available to provide for the
installation of the Project through construction contracts
administered by the State is $174,439.00, and includes a cash
contribution of $1,257.50 from the city. Based upon the amount
of cash available to perform the Highway Landscape Project and
the subsequent construction contract necessary to provide for the
installation of the concrete pavers, the State's pro-rata (cash)
share of the Project is 99.28% and the City's pro-rata (cash)
share of the Project is 0.72%.
1. If, upon receiving bids for the installation of the
Highway Landscape Project the lowest bid or bids
exceeds $134,527.00, 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 99.28% of the overrun and the City will provide
0.72% of the overrun.
2. If, upon receiving bids for the installation of the
Highway Landscape Project, the lowest bid does not
exceed $134,527.00, 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 will share
in the cost of the additional funds necessary to
complete the"work on the above determined pro-rata
(cash) basis.
3. If, upon receiving bids for the installation of the
subsequent construction contract which will include the
installation of concrete pavers, the lowest bid for
the bid item for the concrete pavers exceeds
$39,912.00, 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
99.28% of the overrun and the City will provide 0.72%
of the overrun.
Page 5 of 8
4. If, upon receiving bids for the installation of the
subsequent construction contract which will include the
installation of concrete pavers, the lowest bid for the
bid item for the concrete pavers does not exceed
$39,912.00, and remaining bids within the construction
contract are acceptable to the State, 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 concrete paver
activity, the State and the City will share in the cost
of the additional funds necessary to complete the work
on the above determined pro-rata (cash) basis.
5. The State will not consider the return of excess City
cash contribution until the closeout of the state
construction contract containing the installation of
the concrete pavers. If, upon completion of the
subsequent construction contract, and after final
Project closeout has been completed by the State, it is
determined that the total amount of available cash
funds were not fully utilized, the State will return
the pro-rata (cash) share of the 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.
Page 6 of 8
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.
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 furnish 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.
REMAINDER OF PAGE LEFT BLANK
Page 7 of 8
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.
IN TESTIMONY WHEREOF, the State and the City have executed duplicate
counterparts to effectuate this Agreement.
THE CITY OF DENTON THE STATE OF TEXAS
~l~gna~ur/e)~~ Certified as b el ng 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
L]0yd ¥. Harre]]~ City Mane§er State Highway and Public
(Typed Name and Title) Tra~Ttation~sion
Date: .~/~,,/~ By:~
Hen~ A. Thomason, Jr., P.E.
Deputy Director, Field Operations
APPROVED AS TO LEGAL FO~: Date:
DEB~ A. D~YOVITCH
Page 8 of 8
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STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION
DENTON County MINUTE ORDER Page I of 1 Pages
District No. DALLAS (18)
WHEREAS, in DENTON COUNTY, on U.S. HIGHWAY 380 from Interstate
Highway 35 to Malone Street within the City of Denton, the City of
Denton desires to perform a Landscape Cost Sharing Program project, and
has committed a total contribution of $173,181.50 toward the
development of the Project, which sum includes a cash contribution of
$1,257.50, and a non-cash contribution of $171,924.00, which sum
represents the agreed, fair-market, non-cash value of furnishing the
project design plan, of furnishing and placing topsoil, of installing
an irrigation system including required bores and casing, and of site
maintenance and establishment activities for a period of two (2)
consecutive years; and
WHEREAS, the State Department of Highways and Public
Transportation (the Department) desires to cooperate in this endeavor
by obligating State funds in the amount of $173,181.50 which will be
combined with the cash contribution provided by the City and utilized
to provide for the installation of a highway landscape project through
a construction contract administered by the Department, and to provide
for the installation of concrete pavers through a subsequent
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 $173,181.50
EXHIBIT B
Submitted by: Examined and recommended by:
(Title) Chief Engineer, Maintenance Approved Deputy Director
and Operations Division
Engineer-Director
Minute Number 90101
Date Passed MAR 29 90
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 3067
WAYNE B. DUDDLESTEN DALLAS, TEXAS 75221*3067
(214) 320-6100
June 29, 1990
CONTACT:
Mr. Owen Yost, Urban Planner
City of Denton
215 E.McKinney
Denton, TX 76201
Dear Mr. Yost:
Enclosed is one copy of the fully executed agreement for your files.
The state's portion of the project has not been scheduled for a letting
date yet. This date will be determined based on the completion of the
construction documents by your staff. Please be aware that there is a
minimum four month lead time required between project scheduling and the
actual letting date.
If you have any other questions, please call Mr. Patrick Haigh at
(214) 320-6205.
Sincerely,
District Maintenance Engineer
Enclosure