2002-005
FILE REFERENCE FORM
2002-005
FILE(S) Date Initials
Amendment No.1 to Agreement - Ordinance No. 2004-286 09/21104 JR
Amendment No.2 to Agreement - Ordinance No. 2006-068 03/07/06 JR
Amendment No.3 to Agreement - Ordinance No. 2007-029 02/06/07 JR
S:\Our Documents\Ordinanees\01\TxDOT Grant Agreement Ordinance.doc
ORDINANCE NO. e ;V g- PPff-
AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY
MANAGER TO EXECUTE ON BEHALF OF THE CITY OF DENTON A GRANT
AGREEMENT WITH THE TEXAS DEPARTMENT OF TRANSPORTATION
RELATING TO THE DESIGN AND CONSTRUCTION OF THE AIR TRAFFIC
CONTROL TOWER AND AIRPORT TERMINAL BUILDING AT THE DENTON
MUNICIPAL AIRPORT; AND DECLARING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager of the City of Denton or his designee is hereby
authorized to execute on behalf of the City of Denton a Grant Agreement with the Texas
Department of Transportation relating to design and construction of the air traffic control
tower and airport terminal building at the Denton Municipal Airport, a copy of such
agreement being attached hereto and made a part hereof for all purposes and referenced
as TXDOT Contract No. 2XXAV018 (the "Agreement").
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 the Agreement
SECTION 3. This ordinance shall become effective immediately upon its passage
and approval.
PASSED AND APeROVED this the ~'~ day of ~(~/b~ ,2002.
EULINEBROCK, MAYOR
ATTEST:
HERB~~ORNEY
TEXAS DEPARTMENT OF TRANSPORTATION
GRANT AGREEMENT
(State Assisted Airport Development Grant)
TxDOT CSJNo.: 0218DENTN
TxDOT Project No.: AP DENTON 3
Tx DOT Contract No.: 2XXAV018
Part I - Identification of the Project
TO:
The City of Denton, Texas
FROM:
The State of Texas, acting through the Texas Department of Transportation
This Agreement is made and entered into by and between the Texas Department of
Transportation, (hereinafter referred to as the "State"), for and on behalf of the State of Texas,
and the City of Denton, Texas, hereinafter referred to as the "Sponsor").
The Sponsor desires to sponsor a project for the development of a public aviation facility,
known or to be designated as the Airport under V.T.C.A., Transportation Code, Title 3, Chapters
21-22, et seq.(Vernon and Vernon Supp.).
The project is described as follows: the design and construction of the air traffic control
tower and airport terminal building at the Denton Municipal Airport.
The Sponsor applies for a grant for financial assistance for the project described above.
The parties, by this Agreement, do fix their respective responsibilities with reference to
each other and with reference to the accomplishment of said project.
NOW, for and in consideration of the benefits which will accrue to the parties hereto by
virtue of the completion of the project, IT IS MUTUALLY COVENANTED AND AGREED as
follows:
Page 1 ofll
Part H - Offer of Financial Assistance
It is estimated that approximately $1,600,000.00 (Amount A) of the project costs will be
eligible for financial assistance, and that financial assistance will be for fifty percent (50%)
of the eligible project costs. Project costs eligible for financial assistance shall be
determined by the State. It is estimated that the Sponsor's share of the eligible project
costs will be approximately $800,000.00 (Amount B) and the financial assistance share of
eligible state project costs will be approximately $800,000.00 (Amount C). Financial
assistance is subject to the availability of state funds.
This grant should not be construed as block grant funds for the Sponsor, but as a grant for
funding of the scope items as listed on page one of this agreement. It is the intent of the
Agent to provide funding to complete the approved work items of this grant and not to
amend the scope of work to include items outside of the current determined needs of this
project. Scope of work may be amended as necessary to fulfill the unforeseen needs of
this specific development project within the spirit of the approved scope, subject to the
availability of state, federal, and/or local funds.
The allowable costs of the project shall not include any costs determined by the State to be
ineligible for consideration as to allowability under the V.T.C.A. Transportation Code,
Title 3, Chapters 21-22, et seq., (Vernon and Vernon Supp). Project costs eligible for state
financial assistance shall be determined by the State. Ineligible items include but are not
necessarily limited to the following: paving other than areas disturbed by the terminal
construction; major utility line extensions; new water supply sources; furniture and furnishings;
food preparation, kitchen and restaurant equipment and furniture; vending machines; arcade
games; communications/telephone/radio systems and equipment other than necessary conduit
and wiring; equipment used for generation of revenue including fuel sales; audiovisual
equipment; landscaping other than seeding or sodding of adjacent disturbed areas; lawn
sprinklers and irrigation systems; demolishing or moving existing structures; mitigating
hazardous materials or waste; removing, relocating, renovating and/or repairing existing fueling
systems; and donated materials and/or donated labor.
The State will not participate in funding for force account work conducted by the Sponsor or
for the Sponsor unless approved prior to the signing of this agreement.
It is mutually understood and agreed that if, during the life of the project, the State
determines that the grant amount exceeds the expected needs of the sponsor by $5,000 or
five (5%) percent, whichever is greater, the grant amount can be unilaterally reduced by
letter fi.om the State advising of the budget change and a refund of the sponsor share of
the reduction will be done.
Participation in additional state eligible costs may require approval by the Texas
Transportation Commission. The State will not authorize expenditures in excess of the
Page 2 of 11
dollar amounts identified in this Agreement and any amendments, without the consent of
the Sponsor.
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 C) as stated in Paragraph
II-1.
Sponsor, by accepting this Agreement certifies and, upon request, shah furnish proof to
the State that it has sufficient funds to meet its share of the costs as stated. The Sponsor
grants to the State the right to audit any books and records of the Sponsor to verify funds.
In addition, the Sponsor shall disclose the source of all funds for the project and its ability
to finance and operate the project.
Monthly grant agreement payments to the Sponsor may be authorized upon application to
the State. Payments of the State's share of the allowable project costs will be made in
proportion to the amount of the project satisfactorily completed at the time of the payment
application.
PART HI - Sponsor Responsibilities
In accepting the Agreement, the Sponsor guarantees that:
it will, in the operation of the facility, comply with all applicable state and federal
laws, rules, regulations, procedures, covenants and assurances required by the
State of Texas in connection with the Agreement; and
the Airport or navigational facility which is the subject of this Agreement shall be
controlled for a period of at least 20 years, and improvements made or acquired
under this project shall be operated, repaired and maintained in a safe and
serviceable manner for the useful life of the improvements, not to exceed 20 years;
and
consistent with safety and security requirements, it shall make the airport or air
navigational facility available to all types, kinds and classes of aeronautical use
without discrimination between such types, kinds and classes and shall, provide
adequate public access during the period of this Agreement; and
it shall not grant or permit anyone to exercise an exclusive fight for the conduct of
aeronautical activity on or about an airport landing area. Aeronautical activities
include, but are not limited to scheduled airline flights, charter flights, flight
instruction, aircraft sales, rental and repair, sale of aviation petroleum products and
aerial applications. The landing area consists of runways or landing strips,
Page 3 of 11
taxiways, parking aprons, roads, airport lighting and navigational aids; and
it shall not permit non-aeronautical use of airport facilities without prior approval
of the State; and
it shah not enter into any agreement nor permit any aircraft to gain direct ground
access to the sponsor's airport fi-om private property adjacent to or in the
immediate area of the airport. Further, Sponsor shall not allow aircraft direct
ground access to private property. Sponsor shall be subject to this prohibition,
commonly known as a "through-the-fence operation," unless an exception is
granted in writing by the State due to extreme circumstances; and
it will acquire all property interest identified as needed for the purposes of this
project and comply with all applicable state and federal laws, rules, regulations,
procedures, covenants and assurances required by the State of Texas in the
acquisition of such property interest; and that airport property identified within the
scope of this project and Attorney's Certificate of Property Interests shall be
pledged to airport use and shall not be removed from such use without prior
written approval of the State; and
the Sponsor shall submit to the State annual statements of airport revenues and
expenses; and
all fees collected for the use of an airport or navigational facility constructed with
funds provided under the program shall be reasonable and nondiscriminatory. The
proceeds of such fees shall be used solely for the development, operation and
maintenance of the airport or navigational facility. Sponsor shall not be required
to pledge income received fi.om the mineral estate to airport use unless state and/or
federal funds were used to acquire the mineral estate of airport lands or any
interest therein; and
an Airport Fund shall be established by resolution, order or ordinance in the
treasury of the Sponsor, or evidence of the prior creation of an existing airport
fund or a properly executed copy of the resolution, order, or ordinance creating
such a fund, shall be submitted to the State. Such fund may be an account as part
of another fund, but must be accounted for in such a manner that all revenues,
expenses, retained earnings, and balances in the account are discemable fi.om other
types of monies identified in the fund as a whole. All fees, charges, rents, and
money fi.om any source derived fi.om airport operations must be deposited in said
Airport Fund and shall not be diverted to the general revenue fund or any other
revenue fund of the Sponsor for any purposes other than operation of the airport.
All expenditures fi.om the Airport Fund shall be solely for airport purposes.
Sponsor shall be ineligible for a subsequent grant or loan by the State unless, prior
to such subsequent approval of a grant or loan, Sponsor has complied with the
Page 4ofll
requirements of this subparagraph; and
the Sponsor shall operate runway lighting at least at low intensity from sunset to
sunrise; and
insofar as it is reasonable and within its power, Sponsor shall adopt and enforce
zoning regulations to restrict the height of structures and use of land adjacent to or
in the immediate vicinity of the airport to heights and activities compatible with
normal airport operations as provided in Tex. Loc. Govt. Code Ann. Sections
241.001 et seq. (Vernon and Vernon Supp.). Sponsor shall also acquire and retain
aviation easements or other property interests in or rights to use of land or
airspace, unless Sponsor can show that acquisition and retention of such interest
will be impractical or will result in undue hardship to Sponsor. Sponsor shall be
ineligible for a subsequent grant or loan by the State unless Sponsor has, prior to
such subsequent approval of a grant or loan, adopted and passed an airport hazard
zoning ordinance or order approved by the State; and
it will provide upon request of the State, and the engineering or planning
consultant, copies of any maps, plans, or reports of the project site, applicable to
or affecting the above project; and
after reasonable notice, it will permit the State and any consultants and contractors
associated with this project, access to the project site, and will- obtain permission
for the State, consultants and contractors associated with this project, to enter
private property for purposes related to this project.
all development of an airport constructed with program funds shall be consistent
with the Airport Layout Plan approved by the State and maintained by the
Sponsor. A reproducible copy of such plan, and all subsequent modifications, shall
be filed with the State for approval; and
carry out and complete the project without undue delay and in accordance with the
plans and specifications which are submitted to and approved by the staff. The
State has the option to withhold the payment of any State funds unless the plans
and specifications have been completed and approved by the State; and
it will fully equip, maintain, and staff the control tower to provide sufficient and
adequate control for the safe operation of the airport; and
it will operate the control tower for at least ten years.
The Sponsor certifies to the State that it will have acquired clear title in fee simple to all
property upon which construction work is to be performed, or have acquired a leasehold
Page 5 of 11
on such property for a term of not less than 20 years, prior to the advertisement for bids
for such construction or procurement of facilities that are part of the above project, and
within the timeframe of the project, a sufficient interest (easement or otherwise) in any
other property interest which may be part of the project.
The Sponsor, to the extent of its legal authority to do so, shall save harmless the State, the
State's agents, employees or contractors from all claims and liability due to activities of the
Sponsor, the Sponsor's agents or employees performed under this agreement. The
Sponsor, to the extent of its legal authority to do so, shall also save harmless the State, the
State's agents, employees or contractors from any and all expenses, including attorney fees
which might be incurred by the State in litigation or otherwise resisting said claim or
liabilities which might be imposed on the State as the result of such activities by the
Sponsor, the Sponsor's agents or employees.
The Sponsor's acceptance of this Offer and ratification and adoption of the Agreement
incorporated shall be evidenced by execution of this instrument by the Sponsor, as
provided, and the Agreement shall comprise a contract, constituting the obligations and
rights of the State of Texas and the Sponsor with respect to the accomplishment of the
project and the operation and maintenance of the airport. Such Agreement shall become
effective upon execution of this instrument and shall remain in full force and effect for a
period of at least 20 years.
The Sponsor and not the State shall, for all purposes, be the "Sponsor" of the project.
Sponsor agrees to assume responsibility for operation of the facility in compliance with all
applicable state and federal requirements including any statutes, rules, regulations,
assurances, procedures or any other directives before, during and after the completion of
this project.
The Sponsor by execution of this grant certifies that it has implemented, or will implement
during this project, an effective airport pavement maintenance-management program and it
assures that it will use such program during the period of this Agreement. It will provide
upon written request such reports on pavement condition and pavement management
programs as the State determines may be useful. Failure to comply with this condition
may make the Sponsor ineligible for future grants.
The Sponsor shall have on file with the State a current and approved Attorney's Certificate
of Airport Property Interests and Exhibit A property map.
The Sponsor agrees to assume the responsibility to assure that all aspects of the grant and
project 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 herein.
The Sponsor shall submit to the State the following:
Page 6 of 11
10.
'a.
siting study for review and approval; and
documentation of official designation of the consultant selection committee,
evaluation criteria, scoring matrix and consultant ranking; and
c. evidence that selected design firm has previous control tower experience; and
d. if property acquisition is funded under this grant, documentation of the
professional service contracts (e.g. surveyor and appraisal), and negotiation and
settlement agreements; and
e. prior to entering into professional services contract: copies of the independent
engineering fee analysis and negotiation summary; and
f.. advance notification of the project pre-design meeting; and
g. notification of design option selected; and
h. preliminary design plans; and
i. prior to advertising for construction: contract documents including drawings,
specifications, bid documents, and draft construction contract; and
j. prior to construction contract award: bid tabulation and recommendation of award;
and
k. following execution: copy of the construction contract; and
I. advance notification of pre-construction meeting; and
m. prior to execution: construction change orders and supplemental agreements; and
n. advance notification of the final inspection date.
Responsibility of the State shall include, but not be limited to receive, review, approve' and
process Sponsor's reimbursement requests for approved services and materials supplied in
accordance with approved contracts, no more than once a month.
PART IV - Recitals
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. Furthermore,
the State shall not be a party to any other c6ntract or commitment which the Sponsor may
Page 7 of 11
enter into or assume, or have entered into or have assumed, in regard to the above project.
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 Vernon Supp.), and the Airport
Zoning Act, Tex. Loc. Govt. Code Ann. Sections 241.001. et seq. (Vernon and Vernon
Supp.). Failure to comply with the terms of this Agreement or with the aforementioned
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.
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 to the Agreement, (2) deny Sponsor's future requests for aid, (3)
request the Attomey General to bring suit seeking reimbursement of any financial
assistance money expended on the project pursuant to the Agreement herein,
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.
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.
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.
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.
All commitments by the Sponsor mid the State hereunder are subject to constitutional and
statutory limitations and restrictions binding upon the Sponsor and the State (including
Sections 5 and 7 of Article 11 of the Texas Constitution, if applicable) and to the
availability of funds which lawfully may be applied.
Page 8 of 11
Part V - Acceptance of the Sponsor
The City of Denton, Texas does ratify and adopt all statements, representations,
warranties, covenants and agreements constituting the described project and incorporated
materials referred to in the foregoing Agreement, and does accept the Offer, and by the
acceptance agrees to all of the terms and conditions of the Agreement.
Executed this ~-~/L dayof ~ ,20~
,Witness Signature
Witness Title
City of Denton Texas
Sponsor
Title '~ o
Certificate of Attorney
I, ~ f~"~t'a~'''~ , acting as attorney for
('t~'~ o~ ~',.<~n, fl , Texas, do certify that I have fully examined the foregoing
Agreement and the proceedings taken by said Sponsor relating, and find that the manner of
acceptance and execution, of the Agreement by the Sponsor, is in accordance with the laws of the
State of Texas.
Dated at
of O~--.~.~-4f.,~-- , 200_(.
Witness Signature
· ~itness Title
, Texas, this
day
Page 9 of 11
Part VII - 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
approved and authorized by the Texas Transportation Commission.
STATE OF TEXAS
TEXAS DEPARTMENT OF TRANSPORTATION
David S, Fulton, Director
Aviation Division
1'exes Del)admant of Transportation
Page 10ofll
CERTIFICATION OF AIRPORT FUND
The Sponsor does certify that an Airport Fund has been established for the Sponsor, and that aH
fees, charges, rents, and money from any source derived from airport operations will be deposited
for the benefit of the Airport Fund and will not be diverted for other general revenue fund
expenditures or any other special fund of the Sponsor and that all expenditures from the Fund will
be solely for airport purposes. Such fund may be an account as part of another fund, but must be
accounted for in such a manner that all revenues, expenses, retained earnings, and balances in the
account are discernible from other types of moneys identified in the fund as a whole.
The City of Denton has caused this to be duly executed in its name, this
day of
City of Denton, Texas
(Sponsor)
Title: D±r. of bianagement and Budget
Page 11 of 11