~-.
ORDER N0. 237e4
RF'F'ROVRL OF RGREEMENT WITH THE TEXAS DEPARTMENT
OF TRRNSPORTATION FOR R MASTER PLAN RT THE
JOINT CITY/COUNTY AIRPORT RND AUTHORIZE THE
COUNTY JUDGE TO SIGN SAME
On this the ~Sth day of November 1996, upon motion made
Commissioner Holekamp, seconded by Commissioner Lackey, the
Court unanieously approved by a vote of 3-0-0~ the agreement
with the Texas Department of Transportation for a grant in
the amount of f7Q~,0~0.00 for a master^ plan at the joint
City/County airport and authorize the County Judge to sign
same.
TE%A8 DEPARTMENT OF TRANSPORTATION
AIRPORT PROJECT PARTICIPATION AGREEMENT
(State Assisted Airport Planning Development Grant)
TxDOT Contract No.: 7XXFA012
TxDOT Project No.: AP KERRVILLE 2
TxDOT CSJ No.: 9715KRVLE
Part I - identiPiaation of the Project
TO: The City of Kerrville and County of Kerr, 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 Kerrville and County of Kerr, Texas, (hereinafter referred to as
the "Sponsor").
WITNESSETH:
WHEREAS, 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 21-25, et seq.(Vernon and Vernon Supp.); and
WHEREAS, the project is described as follows: prepare an
Airport Master Plan at the Kerrville Municipal/Louis Schreiner
Field Airport; and
WHEREAS, the Sponsor hereby applies for a grant for financial
assistance and desires the State to act as the Sponsor's agent in
matters connected with the project described above; and
WHEREAS, the parties hereto, by this Agreement, do hereby fix
their respective responsibilities with reference to each other and
with reference to the accomplishment of said project.
NOW, THEREFORE, 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 of 12
.-
Hart IZ - offer of Binancial Asaistanae
1. It is estimated that approximately $70,000.00 (Amount A) of
the project costs will be eligible for financial assistance,
and that financial assistance will be for ninety percent (90$)
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 $7,000.00 (Amount B) and the
financial assistance share of eligible project costs will be
approximately $63,000.00 (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
unforseen needs of this specific development project within
the spirit of the approved scope, subject to the availability
of state, federal, and/or local funds.
2. Should actual eligible project costs exceed the amount shown
above (Amount A), the State may participate in the additional
eligible costs to the extent of the aforesaid appropriate
percentages and subject to the availability of funds.
Participation in additional costs may require approval by the
Texas Transportation Commission. The State will not authorize
expenditures in excess of the dollar amounts identified in
this Agreement and any amendments hereto, without the consent
of the Sponsor.
Should estimated eligible project costs as determined
following the receipt of negotiated fees for the project,
exceed the amount shown above (Amount A), the Sponsor may
request the State to void this Agreement, whereupon the State
shall agree to void this Agreement upon the satisfaction of
the following conditions:
a. the Sponsor's request to the State to void the Agreement
shall be in writing and dated; and
b. if required by the State, the Sponsor shall reimburse the
State for funds expended on this project and Sponsor
shall assume the responsibility for any future State
expenses for contracted services or materials related to
the project for which a contract had been executed prior
to the Sponsor's request to void the Agreement. Sponsor
Page 2 of 12
funds held by the State may be retained until this
requirement is satisfied; and
c. failure on the part of the Sponsor to comply with the
conditions of this paragraph shall constitute a breach of
this Agreement.
4. Upon satisfaction of the conditions specified in Paragraph
II-3 above, the State shall declare this Agreement null and
void, and this Agreement shall have no force and effect,
except that unexpended or unencumbered monies actually
deposited by the Sponsor and held with the State for project
purposes shall be returned to the Sponsor within a reasonable
time.
5. Sponsor's share of project costs may be in cash, in kind, or
a combination of both, provided however, that the Sponsor's
share (Amount B) shall be paid initially in cash if requested
by the State. At project closeout, Sponsor will be credited
with both cash payments made under this paragraph and the
value of in kind contributions, and reimbursed for any
credited amounts that exceed Sponsor's share. -
The value of all in kind contributions made to the project of
property interests, small miscellaneous costs and other
expenses approved by the State, and claimed by the Sponsor as
project costs for the purposes of determining the Sponsor's
share of total eligible project costs (Amount B), shall be
determined by the State.
6. 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
hereunder by the State which are in excess of the percentage
of financial assistance (Amount C) as heretofore stated in
Paragraph IZ-1.
7. Sponsor, by accepting this Agreement certifies and, upon
request, shall furnish proof to the State that it has
sufficient funds to meet its share of the costs as heretofore
stated. The Sponsor hereby grants to the State the right to
audit any books and records of the Sponsor to verify said
funds. In addition, the Sponsor shall disclose the source of
all funds for the project and its ability to finance and
operate the project.
Upon execution of this Agreement and written demand by the
State, the Sponsor's financial obligation (Amount B) shall be
due and payable to the State. Should the Sponsor fail to pay
said obligation, either in whole or in part, within 30 days of
written demand, the State may exercise its rights under
Page 3 of 12
Paragraph ZII-7 hereof. Likewise, should the State be
unwilling or unable to pay its obligation in a timely naMner,
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 B).
8. In accepting the Agreement, the Sponsor guarantees that:
a. 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
b. the Airpozt 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
said improvements, not to exceed 20 years; and
c. 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
d. it shall not grant or permit anyone to exercise an
exclusive right 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, taxiways,
parking aprons, roads, airport lighting and navigational
aids; and
e. it shall not permit non-aeronautical use of airport
facilities without prior approval of the State; and
f. it shall not enter into any agreement nor permit any
aircraft to gain direct ground access to the sponsor's
airport from 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
Page 4 of 12
an exception is granted in writing by the State due to
extreme circumstances; and
g. 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
h. the Sponsor shall submit to the State annual statements
of airport revenues and expenses; and
i. 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
from 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
j. 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. All fees, charges, rents, and money from any
source derived from 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. All expenditures from 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 requirements of this subparagraph;
and
k. following completion of the project where airport
lighting is part of a project, the Sponsor shall operate
such lighting from sunset to sunrise, either manually or
by radio control; and
1. 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
Page 5 of 12
in the immediate vicinity of the airport to heights and
activities compatible with normal airport operations as
provided in Tex. Loc. Govt. Code Ann. $$ 241.001 et seq.
(Vernon and Vernon Supp.). Sponsor shall also acquire
and retain avigation 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
m. it will provide upon request to 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
n. 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.
9. The Sponsor hereby 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 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.
10. The Sponsor's acceptance of this Offer and ratification and
adoption of the Agreement incorporated herein shall be
evidenced by execution of this instrument by the Sponsor, as
hereinafter provided, and said 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.
Page 6 of 12
PART iII - Nomination of the Agent
1. The Sponsor hereby designates the State as the party to
receive and disburse all funds used, or to be used, in payment
of the costs of said project, or in reimbursement to either of
the parties hereto for costs incurred.
2. In the event that state funds are unavailable, this Agreement
shall automatically be voided and become of no force and
effect, except that unexpended or unencumbered monies actually
deposited by the Sponsor and held with the State for project
purposes shall be returned to the Sponsor.
3. The State shall, for all purposes in connection with the
project identified above, be the Agent of the Sponsor. The
Sponsor herewith grants the State a power of attorney to act
as its agent to perform the following services:
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. 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; and provide notification of
contract award for professional services;
c. exerci$e 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, contractor, or
materialman, the State shall issue a written order which
shall prevail and be controlling;
d. receive, review, approve and pay invoices and payment
requests for services and materials supplied in
accordance with the State approved contracts;
e. coordinate review and approval of project plans,
specifications and construction; coordinate and conduct
progress and final inspections;
f. obtain an audit as may be required by state regulations;
g, pay to the Sponsor, from granted funds, the portion of
any approved reasonable and eligible project costs
Page 7 of 12
incurred by the Sponsor that are in excess of the
Sponsor's share.
h. administer Disadvantage Business Enterprises (DBE) and/or
Historically Underutilized Business (HUB) Programs in
accordance with state regulations.
3. 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 State is
hereby specifically granted power of attorney to execute on
behalf of the Sponsor any and all construction and
professional service contracts related to this project. The
power of attorney is a limited power to perform acts in,
connection with airport improvements as specified in or
necessitated by this Agreement.
4. Upon entering into this Agreement, Sponsor hereby agrees to
Name an individual, as the Sponsor's Authorized
Representative, who shall be the State's contact with regard
to this project, and which individual shall have the authority
to make approvals and disapprovals as required on behalf of
the Sponsor.
5. Upon entering into this Agreement, Sponsor hereby agrees to
name at least three individuals, as the Sponsor's Consultant
Selection Committee, to represent the, Sponsor in the selection
of engineering and/or planning consultants; and to name a
chairperson of the selection committee; and to provide a
suitable location for pre-bid and for pre-construction
conferences, and for the submission and opening of
construction bids.
6. 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 contract or
commitment which the Sponsor may enter into or assume, or have
entered into or have assumed, in regard to the above project.
7. This Agreement is subject to the applicable provisions of the
AIP, the V.T.C.A. Transportation Code, Title 3, Chapters 21-
25, et seq., (Vernon and Vernon Supp.), and the Airport Zoning
Act, Tex. Loc. Govt. Code Ann. §§ 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.
a. Of primary importance to the State is compliance with the
terms and conditions of this Agreement. If, however,
after a21 reasonable attempts to require compliance have
Page 8 of 12
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
herein, (2) deny Sponsor's future requests for aid, (3)
request the Attorney General to bring suit aeaking
reimbursement of any financial assistance money expanded
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.
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 hereto in Travis County, Texas.
8. 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.
9. 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.
lo. All commitments by the Sponsor and the State hereunder are
subject to constitutional and statutory limitations and
restrictions binding upon the Sponsor and the State (including
SS 5 and 7 of article 11 of the Texas Constitution, if
applicable) and to the availability of funds which lawfully
may be applied.
11. This contract is subject to the approval as to form by the
Attorney General of the State of Texas.
Page 9 of 12

Part IV - Acceptance of the Sponsor
The City of Kerrville and County of Kerr, Texas does hereby
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 hereby accept the Offer, and by such acceptance agrees to all
of the terms and conditions of the Agreement thereof.
Executed this
day of , 19
Citv of Kerrville, Texas
Sponsor
Witness Signature
Witness Title
Executed this 25th day of
Signature
NOVEMBER
Title
~ 1g 96
County of Kerr, Texas
Sponsor
'- ~
~ ~~-
Witness Signature nature
COUNTY JUDGE
Witness Title
Page 10 of 12
Title
Part v - Certificate of Attorney
i, , acting as
attorney for the City of Kerrville, Texas, do hereby certify that
I have fully examined the foregoing Agreement and the proceedings
taken by said Sponsor relating thereto, and find that the manner of
acceptance and execution thereof, of the said Agreement by said
Sponsor, is in accordance with the laws of the State of Texas.
Dated at , Texas, this day of
19
Witness Signature Attorney's Signature
Witness Title Title
I, , acting as attorney
for the County of Kerr, Texas, do hereby certify that I have fully
examined the foregoing Agreement and the proceedings taken by said
Sponsor relating thereto, and find that the manner of acceptance
and execution thereof, of the said Agreement by said Sponsor, is in
accordance with the laws of the State of Texas.
Dated at
19
Texas, this day of
Witness Signature
Witness Title
Attorney's Signature
Title
Page 11 of 12
Part vI - Attoraey General's Approval
This contract is approved as to form.
By
Date:
Attorney General of Texas
Assistant Attorney General
Part vII - Execution by the 8tata
STATE OF TEXAS
TEXAS DEPARTMENT OF TRANSPORTATION
By:
Date:
Page 12 of 12
CERTIFICATION OF PROJECT FUNDS
TxDOT Contract No.: 7XXFA012
TxDOT Project No. KERRVILLE 2
TxDOT CSJ No. 9715KRVLE
I, ~
(Name) (Title)
and I, ,
(Name) (Title)
do hereby certify that sufficient funds to meet the Sponsors
share of project costs as identified in the Airport Project
Participation Agreement for said project will be available in
accordance with the schedule shown below:
SPONSOR FUNDS
Source Amount Date Available
The City of Kerrville has caused this to be duly executed in its
name, this day of 19
City of Kerrville
(sponsor)
By:
Title:
The County of Kerr has caused this to be duly executed in its
name, this day of 19
County of Kerr
(Sponsor)
By:
Title:
CERTIFICATION OF AIRPORT FUND
TxDOT Contract No.: 7XXFA012
TxDOT Project No. KERRVILLE 2
TxDOT CSJ No. 9715KRVLE
I,
(Name) (Title)
and I,
(Name) (Title)
do hereby certify that the Airport Fund has
(Name of Fund)
been established for the City of Kerrville and County of Kerr,
and that all 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
(Name of Fund)
diverted for other general revenue fund expenditures or any-other
special fund of the City of Kerrville and County of Kerr and that
all expenditures from the Fund will be solely for airport
purposes.
The City of Kerrville has caused this to be duly executed in its
name, this day of 19
City of Kerrville
(Sponsor)
By:
Title:
The County of Kerr has caused this to be duly executed in its
name, this day of 19
County of Kerr
(Sponsor)
By:
Title:
DESIGNATION OF SPONSOR'S AUTHORIZED REPRESENTATIVE
TxDOT Contract No.: 7XXFA012
TxDOT PYOject No. KERRVILLE 2
TxDOT CSJ No. 9715KRVLE
I, .
(Name)
and I, ,
(Name)
hereby designate
(Title)
(Title)
as the Sponsor's
(Name, Title)
authorized representative for the project, who shall have the
authority to make approvals and disapprovals as required on
behalf of the Sponsor.
The City of Kerrville has caused this to be duly executed in its
name, this day of 19
City of Kerrville -
(Sponsor)
By:
Title:
The County of Kerr has caused this to be duly executed in its
name, this day of 19
County of Kerr
{Sponsor)
By:
Title:
DESIGNATION OF SPONSORS
CONSULTANT SELECTION COMMITTEE
TxDOT Contract No.: 7XXFA012
TxDOT Project No. KERRVILLE 2
TxDOT CSJ No. 9715KRVLE
I, , ~
(Name) (Title)
and I,
(Name) (Title)
hereby designate the following named individuals as the City of
Kerrville and County of Kerr Consultant Selection committee for
the project.
NAME TITLE (IF APPROPRIATE):
The City of Kerrville has caused this to be duly executed in its
name, this day of , 19
City of Kerrville
(Sponsor)
By:
Title:
The County of Kerr has caused this to be duly executed in its
name, this day of 19
County of Kerr
(Sponsor)
By:
Title: