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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