2006-068' S \Our Documents\Ordinances\O6\TxDOT Grant Agreement Amendment 2.doc
ORDINANCE NO. ~~ '" p QJ
AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER TO
EXECUTE ON BEHALF OF THE CITY OF DENTON AMENDMENT NO. 2 TO AN
AIRPORT PROJECT PARTICIPATION AGREEMENT WITH THE TEXAS DEPARTMENT
OF TRANSPORTATION DATED JANUARY 8, 2002 RELATING TO THE
CONSTRUCTION OF IMPROVEMENTS AT THE DENTON MUNICIPAL AIRPORT; AND
DECLARING AN EFFECTIVE DATE.
WHEREAS, pursuant to Ordinance No. 2002-005 the City of Denton ("City") entered
into an Airport Project Participation Agreement, dated January 8, 2002 with the Texas
Department of Transportation ("TxDOT") related to the construction of improvements consisting
of the air traffic control tower, airport terminal building, and auto parking lot at the Denton
Municipal Airport, referenced as TxDOT Contract No. 2XXAV018 (the "Existing Agreement");
and
WHEREAS, pursuant to Ordinance No. 2005-286 on September 21, 2004, the City
entered into Amendment No. 1 to the Existing Agreement; and
WHEREAS, TxDOT and the City desire to enter into Amendment No. 2 to the Existing
Agreement, a copy of which is attached hereto and made a part hereof by reference
("Amendment No. 2"), calling for a different procedure for payment of financial assistance and
City participation and payment of local sponsor funds and making other changes in the Existing
Agreement; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The Cily Manager or his designee is hereby authorized to execute
Amendment No. 2 on behalf of the City of Denton.
SECTION 2. The City Manager or his designee is the City's authorized representative
who is directed to comply with any assurances, conditions, or agreements required to be
executed to receive the funds provided under Amendment No. 2, including payment of the City's
share of the estimated construction costs.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the ~'~~2_ day of , 2006.
~Gf~iytC- z y'°
EULINE BROCK, MAYOR
' S:\Our Documents\Ordinanccs\0(i\'CxDOT Grant Agreement Amendment 2.doc
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, CITY ATTORNEY
BY
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TEXAS DEPARTMENT OF TRANSPORTATION
AIRPORT PROJECT PARTICIPATION AGREEMENT
(State Assisted Airport Development)
Amendment No. 02 to the Agreement
TxDOT CSJ No.: 0218DENTN
TxDOT Project No.: AP DENTON 3
TxDOT Contract No.: 2XXAV018
Commission Approval: September 27, 2001
Part I -Identification of the Project
TO: The City of Denton, Texas
FROM: The State of Texas, acting through the Texas Department of Transportation
The City of Denton, hereinafter referred to as the "Sponsor", and the Texas Departrnent of
Transportation, hereinafter referred to as the "State," have entered into an Airport Project
Participation Agreement TxDOT CSJ Number 0218DENTN, executed by the Sponsor on
January 8, 2002, and by the State on January 22, 2002, for the development of the Denton
Municipal Airport.
The project is described as follows: design and construction an airport terminal building;
air traffic control tower and auto parking lot at the Denton Municipal Airport.
Part II -Offer of Financial Assistance, estimates total project costs to be $1,800,000.
Financial assistance is currently limited to $900,000 state funds and $900,000 in local
sponsor funds.
It is in the mutual interest of the Sponsor and the State to amend the Airport Project
Participation Agreement at this time to become full agent for the terminal building and pazking
lot phase of the project.
In consideration of the parties' mutual promises, the following amendment to the Airport
Project Participation Agreement shall become effective upon execution of this Amendment by
the Sponsor and the State.
The Airport Project Participation Agreement is amended to following:
Page 1 of 7
1. Part II, delete 4, 5 and 6. Replace with
4. Sponsor's share of the terminal building and parking lot project costs $400,000
shall be paid initially in cash when requested by the State. At project closeout, Sponsor
will be reimbursed for any amounts that exceed Sponsor's share.
5. 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 B) as stated in Paragraph
II-2.
6. 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).
2. On page 7 add:
PART IV -Nomination of the Agent
1. 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.
2. 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.
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3. 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 Ageut:
a. accept, receive, and deposit with the State Treasury any and all project funds
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;
d. receive, review and approve reimbursement requests for reasonable and eligible
property acquisition costs incurred by the Sponsor, provided the required
documentation is supplied.
Contracting Agent:
e. 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 and for the management of the construction of the above project;
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;
f. administer Disadvantage Business Enterprises (DBE) and/or Historically
Underutilized Business (HUB) Programs in accordance with state regulations.
Contract Management Agent:
g. 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;
h. coordinate review and approval of project plans, specifications and construction;
coordinate and conduct progress and final inspections.
Construction Agent:
Page 3 of 7
authorize the advertisement, receipt and opening of bids for construction of the
above project; award contracts for construction of the above project and
acquisition of materials related to it; and execute, on behalf of the Sponsor,
construction contracts as related to this project;
j. participate in pre-bid and pre-construction conferences; and issue orders as it
deems appropriate regarding construction progress, including but not limited to
Notices to Proceed, Stop Work Orders, and Change Orders;
k. review, approve and maintain record drawings, when appropriate.
3. On page 7 replace Part N Recitals with:
PART V -Recitals
I. 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 N -Nomination of
Agent, is a limited power to perform acts in connection with airport improvements as
specified in or necessitated by this Agreement.
3. 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.
5. 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 con-ective action must be taken;
Page 4 of 7
c. 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.
6. 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 Vemon Supp.), and the Airport
Zoning Act, Tex. Loc. Govt. Code Ann. §§ 241.001 et seq. (Vemon and Vemon 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.
a. 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
. 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 arising
under the terms of this Agreement, or for enforcement of any of the provisions of
this Agreement, is specifically set by Agreement of the parties in Travis County,
Texas.
7. 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. 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.
9. All commitments by the Sponsor and the State are subject to constitutional and statutory
limitations and restrictions binding upon the Sponsor and the State (including §§ 5 and 7
of Article 11 of the Texas Constitution, if applicable) and to the availability of funds
which ]awfully maybe applied.
Page 5 of 7
] 0. 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.
All other terms and conditions of the agreement are unchanged and remain in full force
and effect.
The above amendment to the Airport Project Participation Agreement between the City of
Denton and the Texas~D7ep/artment of Transportat~i/o~n is mutually agreed to and accepted.
Executed this / ~fZ day of 7/ , 20~.
City of Denton, Texas
Sponsor
~'' V"V ~~
Witness Signature Sponsor Signature How r actin
Interim City Manager
Witness Title ~ Sponsor Title
Approved As To Legal Form:
Edwin M. Snyder, City Attorney
By:
Attest:
Jennifer Walters, City Secretary
By:
Page 6 of 7
Execution by 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
~~~~
David S. Fulton, Director
Aviation Division
Texas Department of Transportation
Date: ~ /j y~o
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