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14-R-36 - TxDot Landscape/Maintenance Agreement FM 482RESOLUTION NO. 14 -R -36 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING A LANDSCAPE CONSTRUCTION AND MAINTENANCE AGREEMENT WITH THE TEXAS DEPARTMENT OF TRANSPORTATION REGARDING THE LANDSCAPING OF THE COMAL SETTLEMENT HISTORICAL MARKER, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City staff of the City of Schertz (the "City ") has recommended that the City enter into a Landscape Construction and Maintenance Agreement with the Texas Department of Transportation ( "TxDOT ") regarding a landscaping project for the Corral Settlement Historical Marker at the intersection of Old Nacogdoches Road and FM 482; and WHEREAS, Texas Department of Transportation requires a Landscape Construction and Maintenance Agreement with the City to accept liability for the work; and WHEREAS, the City Council has determined that it is in the best interest of the City to enter into the Landscape Construction and Maintenance Agreement with TxDOT attached hereto as Exhibit A (the "Agreement'). BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manager to execute and deliver the Agreement with TxDOT in substantially the form set forth on Exhibit A. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this 15th day of April, 2014. CITY OF S XAS MiWT45el R. Carpenter, Mayor ATTEST: A.0 Brenda Dennis, City Secretary (CITY SEAL) EXHIBIT A MAINTENANCE AND CONSTRUCTION AGREEMENT A -1 Texas Department of Transportation 125 FAST 1 I' STREET I AUSTIN, TEXAS 78701-24831(512) 463-85881 W W W.TXDOT.G0V May 1, 2014 City of Schertz ATTN: Ms. Cynthia Raleigh, CPM Public Works Business Coordinator 10 Commercial Place, Bldg. 2 Schertz, TX 78154 RE: Landscape Construction and Maintenance Agreement, FM 482, Comal Settlement Historical Marker Dear Ms. Raleigh: One original signed Landscape Construction and Maintenance Agreement allowing the City of Schertz to install and maintain improvements around the historical marker honoring the location of the old Comal Settlement at the intersection of FM 482 and Old Nacogdoches Rd. is enclosed for city files. Please remember that the city should submit detailed plans for the proposed headwall marker for further approval from TxDOT prior to installation. Plans can be submitted to: TxDOT 4102 IH 35 S New Braunfels, TX 78132 Also, Mr. Browne should be contacted at least 48 hours in advance of working on the right of way. He can be reached at 830 - 609 -0707. We look forward to the completion of the planned enhancements and are sure they will bring more recognition to the history of this area. Sincerely, 4m Bohuslav, P.E. Director of Maintenance Enclosure cc: Ricardo Castaneda, P.E., Director of Operations Jessica Castiglione, P.E., New Braunfels Area Engineer James Browne, New Braunfels Maintenance Supervisor Marvin Hatter, District Vegetation Manager OUR GOALS MAINTAIN A SAFE SYSTEM • ADDRESS CONGESTION • CONNECT TEXAS COMMUNITIES • BEST IN CLASS STATE AGENCY An Equal Opportunity Employer LANDSCAPE CONSTRUCTION AND MAINTENANCE AGREEMENT THE STATE OF TEXAS } } COUNTY OF COMAL } THIS AGREEMENT is made by and between the State of Texas, acting by and through the Texas Department of Transportation, hereinafter called the "State ", and the City of Schertz, acting through its duly authorized officials, as evidenced by Resolution Number dated AA-kS:D0A,, hereinafter called the "City ". WITNESSETH WHEREAS, the State owns and maintains a system of highways, including FM 482, in Comal County, Texas, for public use and benefit; and WHEREAS, the State agrees to allow the construction of a landscape project along Old Nacogdoches Road at the intersection with FM 482, hereinafter referred to as the "Facility," attached hereto as Exhibit A; and WHEREAS, the City of Schertz agrees to install landscaping and conduct the Facility's long -term maintenance activities for the Facility through the use of City forces, City contractors, or other means satisfactory to the City and 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 continue unless or until otherwise terminated as provided herein. ARTICLE 2. Project Funding. The City will provide for and/or fund the cost of construction of the Facility as shown on Exhibit A. The City will provide for or fund the long -term maintenance activities for the Facility at no cost to the State. ARTICLE 3. Responsibility of the Parties. A. The City agrees to: 1. Provide landscape design plans to the State for approval and furnish and install landscape plants, mulch, irrigation meters /systems, and other related landscape installation items that may be required; and 2. Perform and /or provide, to the satisfaction of the State, long -term maintenance of the Facility to include but not be limited to the following activities: (a) Pruning, fertilizing and disease control as may be reasonably required to ensure the continued viability and establishment of the plant material; (b) Maintaining the planting beds reasonably free of objectionable weed and grass growth that would adversely affect the growth of the plants; (c) Maintaining and operating the irrigation system (if applicable), or providing water in the amount and to the frequency required, to ensure the continued viability and establishment of the plant material; (d) Replacing plant material as may be reasonably required to ensure that the Facility functions as intended during the term of the Agreement; (e) Providing for mowing of turf and removal of litter where applicable to maintain the area in a neat and presentable condition; (f) Maintaining concrete pavers, sidewalks, lighting, fencing, and all other features constructed as part of the Facility; and 3. Furnish, erect and maintain any barricades, signs and traffic handling devices, in accordance with the latest Texas Manual of Uniform Traffic Control Devices (MUTCD) and to the satisfaction 3 of the State, as may be required to protect the safety of the public; and 4. Conduct periodic inspections as deemed necessary. B. The State agrees to: Cooperate with the City to determine requirements for barricades, signs and traffic handling devices to be used by the City during installation and maintenance of the Facility; and 2. Conduct periodic inspections as deemed necessary. C. The City and State further agree that nothing contained in this Agreement will be construed to: Give either party the power to direct and control the day -to -day activities of the other; or 2. Constitute the parties as partners, joint venturers, co- owners or otherwise as participants in a joint or common undertaking; or Allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. ARTICLE 4. Use of Contractor or Group. The City shall have the right to engage any responsible Contractor or Group to perform or provide any portion of the City's Facility activities specified in this Agreement. However, notwithstanding this provision, the City will continue to remain responsible to the State to ensure performance of all its duties and responsibilities specified in this Agreement. The City shall ensure that any Contractor or Group complies with all provisions of this agreement, and federal, state, and local laws, and regulations as may be applicable. In the event the City engages a Contractor to perform Facility maintenance activities under this Agreement, the City shall ensure that said Contractor shall indemnify the State for any and all damages and claims for damages by said Contractor, its employees, agents, or representatives, including any claims resulting from bodily injury or death to others, or, for loss of or damage to property of others, arising out of, incident to, or in any manner connected to Facility maintenance activities, and, for any or all liability arising from the negligent acts of said Contractor, its employees, agents, or representatives. In the event the City engages and approves a responsible Group to perform Facility maintenance activities under this Agreement, the City shall require and ensure that said Group's authorized representative obtain, review, and execute the "Acknowledgment Of Conditions For Landscape Maintenance Work," attached and incorporated herein as Exhibit B, and thereafter maintain the record in its files. ARTICLE 5. Indemnification. The City and the State each acknowledge responsibility for the acts, deeds, errors and omissions of its own employees. The parties agree that the Texas Tort Claims Act pertaining to governmental liability for tortious conduct and/or property damage shall apply to this Agreement. ARTICLE 6. Termination. This Agreement may be terminated under any of the following conditions: A. By mutual written agreement and consent of both parties; or B. By either party upon giving the other party thirty (30) days prior written notice; or C. By the State, in the event the State determines that the Facility is not in the best interest of the traveling public. If the City terminates this Agreement, as provided herein, the City will be responsible for repair or removal of the Facility. In the event that the City does not provide the repair or removal services, the State may remove or repair the Facility and request reimbursement for any reasonable costs incurred by the State to restore the State's right of way to its original condition. ARTICLE 7. Amendments. Changes in time frame, character, or obligations herein shall be enacted by written amendment. Both parties must execute all amendments to this Agreement. ARTICLE 8. Successors and Assigns. Subject to the provisions of Article 4, the City shall not assign or otherwise transfer its rights and obligations under this Agreement except with prior written consent of the State, and any prohibited assignment or transfer shall be null and void. ARTICLE 9. Remedies. 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. ARTICLE 10. Insurance. 4 The City shall provide necessary safeguards to protect the public on State - maintained highways including adequate insurance for payment of any damages which might result during the Facility activities, and to save the State harmless from damages, to the extent of said insurance coverage and insofar as it can legally do so. Where Facility activities are performed through a Contractor, the Contractor shall submit to the City proof of insurance using the State's "Certificate of Insurance, Form 1560," as currently revised and attached as Exhibit C. The limits of the insurance policy shall remain in effect for the duration of the pertinent Facility activities under this Agreement. The State shall be named as an Additional Insured with a Waiver of Subrogation in favor of the State. The City shall forward completed original insurance certificates to the State. ARTICLE 11. Notices. All notices to either party by the other required under this contract shall be personally delivered or mailed to such party at the following respective address: STATE: Texas Department of Transportation Attn: Director of Maintenance 4615 N.W. Loop 410 (location) P.O Box 29928 (mailing address) San Antonio, Texas 78229 ARTICLE 12. Gratuities, CITY: City of Schertz Attn: Sam D. Willoughby Public Works Director 10 Commercial Place #2 Schertz, Texas 78154 Texas Transportation Commission policy mandates that employees of the State 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 Agreement. The only exceptions allowed are ordinary business lunches and items that have received advanced written approval of the Texas Department of Transportation Executive Director. Any person doing business with or who may reasonably speaking do business with the State under this Agreement may not make any offer of benefits, gifts or favors to State employees, except as mentioned here above. Failure on the part of the City to adhere to this policy may result in the termination of this Agreement. IN TESTIMONY WHEREOF, the State and the City have executed duplicate counterparts to effectuate this Agreement. THE CITY OF SCHERTZ By: Title: City Manager THE STATE OF TEXAS Certified as being executed for the purpose and effect of activating and/or carrying out the orders, established Date: y-a\g --)U\� Attest: City Clerk List of Exhibits: policies or work programs heretofore approved and authorized by the Texas Transportation Commission. Mario,R. Jorge, P San Antonio Disd Date: 4 [ ¢ R "A" - Plans for the Landscape Project "B" - Acknowledgment of Conditions for Landscape Maintenance Work "C" - Certificate of Insurance, Form 1560 r "• �k 2 , `I r +� 5 4 - �fLe, A./",E t ; 0 t f, X15 •� �.� �+ ii w� „` �`bYt �i ��_��� \C; _.a•l�. X51 , �� `� r � ` �'"ylR earth feets Landscape En ancement Plan — Historical Marker Area Legend: Old Nacogdoeties Rd. & FM 482, Comal Co. Texas ] Stale HislmiCil Marker 5 Low Ilawering trees ` (Crape MerteLc or Redbud 2 Headwz7 -391 i Mmkcr menial Orn Grass (staggered L-� pedestal 6 (ParnM ere ) 3 j'•i =rb -sue. 7 assplWt turn off 4 Fe —xavz k, /r/GA o''PM4;nfer.4.rtCE lass,;a af- %cxbj a h l R •; r_ `t.. wll A L° n 482] w� „` �`bYt �i ��_��� \C; _.a•l�. X51 , �� `� r � ` �'"ylR earth feets Landscape En ancement Plan — Historical Marker Area Legend: Old Nacogdoeties Rd. & FM 482, Comal Co. Texas ] Stale HislmiCil Marker 5 Low Ilawering trees ` (Crape MerteLc or Redbud 2 Headwz7 -391 i Mmkcr menial Orn Grass (staggered L-� pedestal 6 (ParnM ere ) 3 j'•i =rb -sue. 7 assplWt turn off 4 Fe —xavz k, /r/GA o''PM4;nfer.4.rtCE lass,;a af- %cxbj EXHIBIT `B" ACKNOWLEDGEMENT OF CONDITIONS FOR LANDSCAPE MAINTENANCE WORK The City of Schertz, hereinafter called the "City ", and , hereinafter called the "Group" recognize the need and desirability of landscaped highways and are entering into this Agreement to permit the Group to contribute toward the effort of maintaining landscaping on State controlled right of way. The Group, both jointly and severally, acknowledges the hazardous nature of the work, and agrees to the following terms and conditions: • Participants in the Group agree to obey and abide by all laws and regulations relating to safety and such other terms and conditions as may be required by the County for special conditions on a particular adopted section. • When participants are 15 years of age or younger, the Group shall furnish adequate supervision by one or more adults. • The Group shall conduct at least two (2) safety meetings per year. Participants must attend a safety meeting conducted by the Group before participating in landscape maintenance on the right of way, • The Group shall not subcontract or assign its responsibilities to any other group, organization or enterprise without the express written authorization of the City. • Individuals shall wear safety vests while working on the right of way. • The Group shall neither possess nor consume alcoholic beverages while working on the right of way. • The Group shall maintain a first -aid kit and adequate drinking water while working on the right of way. CERTIFICATE OF INSURANCE Form 1560 (Rev 07 /12) Previous editions of this form may not be used. (GSD -EPC) Page 1 of 2 Agents should complete the form providing all requested Information then either fax or mail this form directly to the address listed on page two of this form. Copies of endorsements listed below are not required as attachments to this certificate. This certificate is Issued as a matter of Information only and confers no rights upon the certificate holder. This certificate does not center any rights or obligations other than the rights and obligations conveyed by the policies referenced on this certificate. The terms of the policies referenced In this certificate control over the terms of the certificate. Insured: City of Street/Mailing Address: 1400 Schertz Pkwy City /State2fp: Schantz, Texas 78154-1634 Phone Number: Area Code (210) 619 -1163 Workers' Compensation Insurance Coverage: Endorsed with a Waiver of Subrogation in favor of TxDOT. Carrier Name: Texas Municipal League Intergovernmental Risk Pool Carrier Phone #: 800 - 537.6655 Address: 1821 Rutherford Ln City, State, Zip: Austin, TX 78754 Type of Insurance: Policy Number: Effective Date: Expiration Date: Limits of Liability: Workers'Compensation 8491 1 10/01/13 10/01/14 1 Not Less Than: Statutory - Texas Commercial General Liability insurance: Carrier Name: Texas Municipal League Intergovernmental Risk Pool Carrier Phone #: 800- 537.6655 Address: 1821 Rutherford Ln City, State, Zip: Austin, TX 78754 Type of Insurance: Policy Number: Effective Date: Expiration Date: Limits of Liability: Commercial General Liability Insurance 8491 10/01113 10/01/14 Not Less Than: $ 600,000 combined single limit Business Automobile Policv: Carrier Name: Texas Municipal League Intergovernmental Risk Pool Carrier Phone #: 800 - 537 -6655 Address: 1821 Rutherford Ln City, State, Zip: Austin, TX 78754 Type of Insurance: Policy Number: Effective Date: Expiration Limits of Liability: Business Automobile Policy Y 491 10/01/13 10/01/14 Not Less Than: $ 600,000 combined single limit Umbrella Pollov (if anolicable): Carrier Name: N/A Carrier Phone M Address: City, State, Zip: Type of Insurance: Policy Number: Effective Date: Expiration Date: Limits of Liability: Umbrella Policy Agency Name Address City, State Zip Code Authorized Agent's Phone Number The Texas Department of Transportation maintains the Information collected through this form. With few exceptions, you are entitled on request to be Informed about the Information that we collect about you. Under sections 552.021 and 552.023 of the Texas Government Code, you also are entitled to receive and review the Information. Under section 559.004 of the Government Code, you are also entitled to have us correct Information about you that is incorrect. Fax completed form to: 512/416 -2536 Form 1560 (Rev 0412007) Texas Department of Transportation Page 2 of 2 NOTES TO AGENTS: Agents must provide all requested information then either fax or mail this form directly to the address listed below. Pre - printed limits are the minimum required, if higher limits are provided by the policy, enter the higher limit amount and strike - through or cross out the pre - printed limit. To avoid work suspension, an updated Insurance form must reach the address listed below one business day prior to the expiration date. Insurance must be In force In order to perform any work. Binder numbers are not acceptable for policy numbers. The certificate of Insurance, once on file with the department, is adequate for subsequent department contracts provided adequate coverage Is still in effect. Do not refer to specific projects /contracts on this form. List the contractor's legal company name, including the DBA (doing business as) name as the Insured. If a staff leasing service is providing Insurance to the contractor /client company, list the staff leasing service as the Insured and show the contractor /client company In parenthesis. The TxDOT certificate of insurance form is the only acceptable proof of insurance for department contracts. List the contractor's legal company name, Including the DBA (doing business as) name as the insured or list both the contractor and staff leasing service as Insured when a staff leasing service Is providing insurance. Over - stamping and /or over - typing entries on the certificate of insurance are not acceptable if such entries change the provisions of the certificate in any manner. This form may be reproduced. DO NOT COMPLETE THIS FORM UNLESS THE WORKERS' COMPENSATION POLICY IS ENDORSED WITH A WAIVER OF SUBROGATION IN FAVOR OF TXDOT. The SIGNATURE of the agent is required. CERTIFICATE OF INSURANCE REQUIREMENTS: WORKERS' COMPENSATION INSURANCE: The contractor is required to have Workers' Compensation Insurance if the contractor has any employees including relatives. The word STATUTORY, under limits of liability, means that the Insurer would pay benefits allowed under the Texas Workers' Compensation Law. GROUP HEALTH or ACCIDENT INSURANCE is not an acceptable substitute for Workers' Compensation. COMMERCIAL GENERAL LIABILITY INSURANCE: MANUFACTURERS' or CONTRACTOR LIABILITY INSURANCE is not an acceptable substitute for Comprehensive General Liability Insurance or Commercial General Liability Insurance. BUSINESS AUTOMOBILE POLICY: If coverages are specified separately, they must be at least these amounts: Bodily Injury $500,000 each occurrence $100,000 each occurrence Property Damage $100,000 for aggregates PRIVATE AUTOMOBILE LIABILITY INSURANCE Is not an acceptable substitute for Business Automobile Policy. MAIL ALL CERTIFICATES TO: Texas Department of Transportation CST - Contract Processing Unit (RA/200 —1'r Fl.) 125 E. 11th Street Austin, TX 78701 -2483 512/416 -2540 (Voice), 512/416 -2536 (Fax)