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2011-092 RES APPROVING LANDSCAPE PARTNERSHIP PROGRAM AGREEMENT BETWEEN THE CITY AND TXDOTRESOLUTION N0. 20117-092 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS, APPROVING A LANDSCAPE PARTNERSHIP PROGRAM AGREEMENT BETWEEN THE CITY OF PARIS, TEXAS AND THE TEXAS DEPARTMENT OF TRANSPORTATION (TXDOT), FOR THE PLACEMENT OF CREPE MYRTLE TREES AROUND PORTIONS OF LOOP 286; MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Chapters 201 and 221 of the Texas Transportation Code authorizes the State of Texas to lay out, construct, maintain and operate a system of streets, roads, and highways that comprise the State Highway System; and, WHEREAS, Title 43, Texas Administrative Code, §2.67, Landscape Partnership Program, allows private businesses, civic organizations, and local governments an opportunity to support the aesthetic improvement of the state highway system by donating the project development, establishment, and maintenance of a landscaped section of the state highway system upon approval of the State; and, WHEREAS, the City of Paris, Texas has requested that the State allow the City of Paris to participate in said improvement (planting crepe myrtle trees in the median on Loop 286) by funding that portion of the improvement described a s landscaped development, hereinafter called the "Project"; and WHEREAS, the form of agreement for the Landscape Partnership Program for Governmental Entities, attached hereto as Exhibit "A", should be approved, and the City Manger is authorized to execute the same. WHEREAS, upon full review and consideration of the Agreement, and all matters attendant and related thereto, the City Council is of the opinion that the terms and conditions thereof should be approved, and that the City Manager/Mayor, shall be authorized to execute it on behalf of the City of Paris. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS, THAT: Section 1. The findings set out in the preamble to this resolution are hereby in all things approved. Section 2. That the form of the Landscape Partnership Program for Governmental Entities, attached hereto as Exhibit "A", is hereby approved. Section 3. The City Manager of the City of Paris be, and he is hereby authorized and directed to execute on behalf of the City of Paris the Landscape partnership Program for Governmental Entities in the form shown in Exhibit "A", attached hereto. Section 4. That this resolution shall become effective immediately upon its passage. PASSED AND APPROVED this 12th day of December, 2011. ~ A.J. Hash r ATTEST: W-aD nCity Clerk APPROVED AS TO FORM: Kent McIly , City Attorney ' County Lamar Location STATE OF TEXAS COUNTY OF TRAVIS § LANDSCAPE PARTNERSHIP PROGRAM FOR GOVERNMENTAL ENTITIES THIS AGREEMENT IS MADE BY AND BETWEEN the State of Texas, acting through the Texas Department of Transportation, hereinafter called the "State" or "TxDOT," and the Citv of Paris, Texas acting by and through its duly authorized officials as evidenced by Resolution or Ordinance, dated December 12, 2011, which is attached to and made part of this contract, hereinafter called the "Local Government." WITNESSETH WHEREAS, Transportation Code, Chapter 201 and Transportation Code, Chapter 221 authorizes the State to lay out, construct, maintain, and operate a system of streets, roads, and highways that comprise the State Highway System; and, WHEREAS, Title 43, Texas Administrative Code, §§2.67, Landscape Partnership Program, allows private businesses, civic organizations, and local governments an opportunity to support the aesthetic improvement of the state highway system by donating the project development, establishment, and maintenance of a landscaped section of the state highway system upon approval of the State. WHEREAS, the Local Government has requested that the State allow the Local Government to participate in said improvement by funding that portion of the improvement described as landscape development, hereinafter called the "ProjecY"; and, WHEREAS, the State has determined that such participation is in the best interest of the citizens of the State; and NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties hereto, to be by them respectively kept and performed as hereinafter set forth, the State and the Local Government do agree as follows: AGREEMENT ARTICLE 1. TIME PERIOD A. This agreement becomes effective when signed by the last party whose signing makes the agreement fully executed and shall terminate on December 12, 2016 or unless terminated in accordance with Article 10. This agreement may be renewed in writing by mutual agreement of the parties for two additional five year terms after the expiration of the initial term of the contract. B. At the end of the agreement, the Local Government shall restore the State's property to that of its previous condition unless mutually agreed otherwise. The cost of restoring the property shall be borne by the Local Government and meet standards in accordance with Article 7. ARTICLE 2. PROJECT A. The Local Government agrees to perform the landscape work described in Attachment A, Landscape Plan, which consists of project design plans, sketches, drawings, notes, estimates, and specifications as required by the State, and in Attachment B, Work Responsibilities. The project design plan shall be subject to the review and satisfactory approval by the State prior to installation. No modification to the approved design may be made without the prior written approval of TxDOT's local District Engineer or the Director of the Design Division. B. Unless otherwise specifically stated in Attachment B, the State may supervise and inspect all work performed and provide such engineering inspection services as may be required to ensure that the project is accomplished in accordance with Attachment A. C. The Local Government agrees to maintain the landscaping to the State's satisfaction for the period of this agreement in accordance with Attachment C, Project Work Schedule. D. The Local Government shall provide, erect, and maintain to the satisfaction of the State any barricades, signs, and traffic handling devices necessary to protect the safety of the traveling public while performing any work on the project. E. All aspects of the project shall be carried out in compliance with applicable federal and state laws and regulations. The project shall be designed in accordance with Attachment A and with TxDOT's latest policies, procedures, standards, and guidelines. The Local Government shall award and manage all construction work. Landscape-Partnership_Govt Page 1 of 8 Rev. 01/22/08 F. It is expressly understood that the State does not purport hereby to grant any right, claim, title or easement in or upon this State property. ARTICLE 3. PROJECT FUNDING A. The Local Government is responsible for 100% of the cost of designing, constructing and maintaining the landscape project. State funds shall not be made available to contribute to the design, construction, or maintenance of this project under any circumstances. B. Any costs incurred by the State for repairs to the State Property, for removal of debris or any other necessary restoration work as a result of the project shall be billed to the Local Government at cost. The Local Government shall make full and complete payment to the State within thirty (30) days from receipt of State's written notification. ARTICLE 4. REPRESENTATIONS AND WARRANTIES A. The Local Government represents and warrants that it has unrestricted and full use of any materials and items described in Attachment A and that by signing this agreement it relinquishes and transfers all rights and interest in and use to the State. B. The Local Government acknowledges that while it is not an agent, servant, nor employee of the State, it is responsible for its own acts and deeds and for those of its agents or employees during the performance of the work on the Project. ARTICLE 5. MAINTENANCE Upon completion of the installation of the Project, the Local Government will assume responsibility for the maintenance of the completed Project. ARTICLE 6. RIGHT OF ACCESS A. The State shall permit the Local Government access to the site to perform any activities required to execute the work. The Local Government shall provide for all necessary right of way needed for performance of the work on sites not owned or to be acquired by the State. B. Ingress and egress shall be allowed at all times for Federal and HighwayAdministration personnel and state employees and equipment when highway maintenance operations are necessary and for inspection purposes. C. This agreement does not give the Local Government any right to display or permit any other party to display literature, memorabilia, artifacts, or anything else in or around the landscape project, with the exception of the project itself. The Local Government shall follow all current TxDOT rules, polices, procedures, and regulations, which may be modified by TxDOT at any time without notice. ARTICLE 7. CONDITION OF THE PROPERTY A. The Local Government shall construct the landscape project in strict conformity to the design as approved by the State. The Local Government shall not deposit any waste products on the premises and shall remove any materials and debris from the premises at the end of the construction of the landscape project. Construction of the landscape project shall pose no danger or interfere to the traveling public. The State may halt construction of the landscape project at any time if, in its sole judgment, construction is posing a danger to the traveling public. B. The Local Government shall avoid damage on or outside the State property. At the State's request, the Local Government shall, at its own expense, restore or repair damage occurring on or outside State property, including but not limited to roadway and drainage structures, overhead signs, signs, traffic signals, pavement markings, and pavement to a condition equal to that existing before the project, and restore the natural and cultural environment in accordance with federal and state laws, including landscaping and historical features. ARTICLE 8. UTILITIES A. If the required right of way encroaches upon existing utilities and the proposed project requires their adjustment, removal or relocation, the Local Government shall be responsible for determining the scope of utility work and notify the appropriate utility company to schedule adjustments. B. The Local Government shall be responsible for the adjustment, removal or relocation of utility facilities in accordance with applicable State laws, regulations, rules, policies and procedures. This includes, but is not limited to: 43 TAC §15.55 relating to Construction Cost Participation; 43 TAC §21.21 relating to State Participation in Relocation, Adjustment, and/or Removal of Utilities; and, 43 TAC§ 21.31 et seq. relating to Utility Accommodation. The Local Government shall be responsible for all costs associated with additional adjustment, removal, or relocation during the construction of the project, unless this work is provided by the owners of the utility facilities per agreement or per all applicable statutes or rules. Land sca pe-Partners h i p_Govt Page 2 of 8 Rev. 01/22/08 ARTICLE 9. SIGNAGE A. A sign may be erected at the project site that announces participation in the program. The sign shall be four feet by four feet and shall conform to the current Texas Manual on Uniform Traffic Control Devices. The Local Government must maintain the sign for the duration of the project and pay for all associated costs. B. All signs shall be approved by the State before installation. C. This agreement does not give the Local Government any right to display or permit any other party to display literature, memorabilia, artifacts, or anything else in or around the landscape project, with the exception of the project itself. The Local Government shall follow all current TxDOT rules, polices, procedures, and regulations, which may be modified by the State at any time without notice. ARTICLE 10. TERMINATION A. This agreement may be terminated by: mutual written agreement and consent of both parties; the State upon the Local GovernmenYs violation of contract terms or failure to fulfill the obligations of this agreement; or the State if it determines that the performance of the project is not in the best interest of the State. B. If the Local Government fails to maintain the project in accordance with Attachment C, Maintenance Schedule, the project shall be subject to removal at the State's discretion and at the Local GovernmenYs expense. C. If the project is not installed within one year of the date of execution of this agreement, this agreement shall be terminated. In the event the Project is not completed, the State shall seek reimbursement from the Local Government for repairs to the State Property, for removal of debris or any other necessary restoration work as a result of the project. The State shall bill the Local Government at cost and the Local Government shall make full and complete payment to the State within thirty (30) days from receipt of State's written notification. ARTICLE 11. NOTICES All notices to either party by the other required under this agreement shall be delivered personally or sent by certified or U.S. mail, postage prepaid or sent by electronic mail, (electronic notice being permitted to the extent permitted by law but only after a separate written consent of the parties), addressed to such party at the following addresses: Local Government: State: Mail To: De/iver To: City of Paris City Manager District Engineer Texas Department of Transportation District Engineer Texas Department of Transportation P.O. Box 9037 Paris, TX. 75461 All notices shall be deemed given on the date so delivered or so deposited in the mail, unless otherwise provided herein. Either party may change the above address by sending written notice of the change to the other party. Either party may request in writing that such notices shall be delivered personally or by certified U.S. mail and such request shall be honored and carried out by the other party. ARTICLE 12. SOLE AGREEMENT In the event the terms of the agreement are in conflict with the provisions of any other existing agreements between the Local Government and the State, the latest agreement shall take precedence over the other agreements in matters related to the Project. ARTICLE 13. AMENDMENTS By mutual written consent of the parties, this contract may be amended prior to its expiration. ARTICLE 14. EMPLOYEES NOT TO BENEFIT Texas Transportation Commission policy mandates that employees of the Texas Department of Transportation shall not accept any benefit, gift or favor from any person doing business with or who reasonably speaking may do business with the State under this contract. The only exceptions allowed are ordinary business lunches and items that have received the advance written approval of the Executive Director of the Texas Department of Transportation. ARTICLE 15. DISPUTES In the event of disputes as to obligations under the agreement, the State's decision shall otherwise be final and binding. Landscape-Partnership_Govt Page 3 of 8 Rev. 01/22/08 ARTICLE 16. ORDER OF DOCUMENT PRECEDENCE In the event of any conflict among the elements of this agreement, they should prevail in this order A. This Agreement, B. Attachment A, Landscape Plan, C. The current edition of the Design Division's Landscape Partnership Program Guidelines, D. Attachment B, Work Responsibilities, E. Attachment C, Project Work Schedule. ARTICLE 17. CONFIDENTIALITY The Local Government shall not disclose information obtained from the State under this contract without the express written consent of the State. ARTICLE 18. ASSIGNMENTS OR SUBCONTRACTS The Local Government shall not assign or otherwise transfer their obligations under this agreement except with prior written consent of TxDOT. Subcontracts in excess of $25,000 shall contain all applicable terms and conditions of this contract. A copy of the subcontract must be sent to TxDOT immediately following execution. ARTICLE 19. INDEMNIFICIATION A. Errors, Omissions, Negligent Acts. To the extent permitted by law, the Local Government shall indemnify and save harmless the State and its officers and employees from all claims and liability due to activities of itself, its agents, or employees, which are performed under this contract and which are caused by or result from error, omission, or act of the Local Government, its agent, or any person employed by the Local Government. B. Attorney Fees. The Local Government shall also indemnify and save harmless the State from any and all expense, including, but not limited to, attorney fees, which may be incurred by the State in litigation or otherwise resisting a claim or liabilities that may be imposed on the State as a result of error, omission, or act of the Local Government, its agents, or its employees. ARTICLE 20. COMPLIANCE WITH LAWS The Local Government performance shall be in compliance with all federal, state, and local laws, ordinances, and regulations including but not limited to: ♦ the Endangered Species Act of 1973, 16 USC Section 1531 et seq., and the regulations there as amended; ♦ TxDOT erosion and sedimentation control standards and TxDOT Vegetation and Management Standards, which may in any way regulate or control the activity; and ♦ all state and federal environmental laws and any conditions required by the State to protect the environment. ARTICLE 21. STATE AUDITOR The state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under the contract or indirectly through a subcontract under the contract. Acceptance of funds directly under the contract or indirectly through a subcontract under this contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. An entity that is the subject of an audit or investigation must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit. ARTICLE 22. INSURANCE If the Local Government or its subcontractors shall perform work on the State's right of way, the Local Government or its subcontractors shall maintain insurance on file with Contract Services of the Texas Department of Transportation in the amount specified on Texas Department of Transportation Form 1560-CSS, Certificate of Insurance, as required by the State. No other proof of insurance is acceptable to the State. The Local Government or its subcontractors certifies that it shall keep current insurance on file with that office for the duration of the contract period. If insurance lapses during the contract period, the Local Government or its subcontractors must stop work until a new certificate of insurance is provided. Landscape-Partnership_Govt Page 4 of 8 Rev. 01/22/08 ARTICLE 23. SIGNATORY WARRANTY The signatories to this agreement warrant that each has the authority to enter into this agreement on behalf of the party they represent. IN WITNESS WHEREOF, THE STATE AND THE LOCAL GOVERNMENT have executed duplicate counterparts to effectuate this agreement. THE STATE OF TEXAS Executed for the Executive Director 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 heretofore approved and authorized by the Texas Transportation Commission. Mark A. Marek, Director of Design Division Date THE LOCAL GOVERNMENT P. E. Name of the Local Government Citv of Paris By Date Typed or Printed Name and Title Gene Anderson Interim Citv Manaqer Attachments A. Landscape Plan B. Work Responsibilities C. Project Work Schedule Landscape-Partnership_Govt Page 5 of 8 Rev. 01/22/08 Attachment A Landscape Plan The City of Paris will be planting crepe myrtle trees around portions of Loop 286. The project will begin just north of the Loop 286 and US 271 South interchange and go counter clockwise around the Loop to the Stillhouse Road and Loop 286 overpass. The trees will be placed near the middle of the medians and spaced 20-feet apart. At the crossovers trees will be placed in clusters of 8 to 12 trees. These clusters will be located per the attached plan. The trees will be placed at least 20 feet from the pavement edge. Landscape-Partnership_Govt Page 6 of 8 Rev. 01/22/08 Attachment B Work Responsibilities The City will trim the trees as needed, water the trees aggressively the first year and as needed in subsequent years. The City will replace dead trees during planting seasons. The City will mow the medians where the crepe myrtles are planted at least three times a year (if needed per TxDOT). La ndsca pe-Partners h i p_Govt Page 7 of 8 Rev. 01/22/08 Attachment C Project Work Schedule The work schedule for tree planting will begin November 2011 and is expected to take four to five weeks to finish. The project should be completed by Dec. 2012. Landscape-Partnership_Govt Page 8 of 8 Rev. 01/22/08