ORDER NO. 29801
SPUR 98 LANDSCAPE CONSTRUCITON
AND MAINTENANCE AGREEMENT
Came to be heard this the 24th day of July 2006 with a motion made by Commissioner Baldwin, Seconded by
Commissioner Williams, the Court unanimously approved by a vote of 4-0-0 the landscape construction and
maintenance ageement between the State of Texas, acting by and through the Texas Department of
Transportation and Kerr County for Spur 98.
l~i~
COMMISSIONERS' COURT AGENDA REQUEST
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PLEASE FURNISH ONE ORIGINAL ANA TEN COPIES OF THIS
REQUEST AND DOCUMENTS TO BE REVIEWED BY THE COURT.
MADE BY: H.A. "Buster" B`alf~ r
MEETING DATE: July 24, 2006
OFFICE: Commissioner, Pct. 1
SUBJECT: Consider, discuss and take appropriate action on Landscape Construction
And Maintenance Agreement between the State of Texas, acting by and through the
Texas Department of Transportation and the County of Ken.
EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON)
NAME OF PERSON ADDRESSING THE COURT: Commissioner, Pct. 1
ESTIMATED LENGTH OF PRESENTATION:
IF PERSONNEL MATTER -NAME OF EMPLOYEE:
Time for submitting this request for Court to assure that the matter is posted in
accordance with Title 5, Chapter 551 and 552, Government Cade, is as follows:
THIS REQUEST RECEIVED BY:
THIS REQUEST RECEIVED ON:
All Agenda Requests will be screened by the County Judge's Office to determine if adequate
information has been prepared for the Court's formal consideration and action at time of Court
Meetings. Your cooperation will be appreciated and contribute towards your request being
addressed at the eazliest opportunity. See Agenda Request Rules Adopted by Commissioners'
Court.
Meeting scheduled for Mondays:
5:00 P.M. previous Tuesday.

LANDSCAPE CONSTRUCTION
AND MAINTENANCE
AGREEMENT
THE STATE OF TEXAS }
}
COUNTY OF TRAVIS }
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
County of Kerr, acting through its duly authorized officials, as evidenced by Resolution
or Ordinance Number a~ 80 / ,dated 7Jay~o[o ,hereinafter called the
"County"
WITNESSETH
WHEREAS, the State owns and maintains a system of highways, including Spur
98, in Kerr County, Texas, for public use and benefit; and
WHEREAS, the State agrees to provide for the construction of landscaping
through roadway construction project, CSJ 0526-O1-008, on Spur 98, from approximately
570 feet east of Saddlewood Blvd. to approximately 360 feet west of Saddlewood Blvd. ,
hereinafter referred to as the "Facility," attached hereto as Exhibit "A"; and
WHEREAS, the County agrees to conduct the Facility's long-term maintenance
activities through the use of County forces, County contractors, or other means
satisfactory to the County 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 County 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 State will provide for the cost of landscape construction of the Facility in the azea as
shown on Exhibit "A", and in accordance with the roadway construction contract.
The County 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 County agrees to:
1. 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 where applicable to
maintain the azea in a neat and presentable
condition; and
(f) Maintaining concrete pavers, sidewalks, lighting,
fencing, and all other features (located outside of
the pavement structure) and constructed as part of
the Facility.
2. Furnish, erect and maintain any barricades, signs and traffic
handling devices, in accordance with the latest Texas Manual of
Uniform Traffic Contro] Devices (MLITCD) and to the satisfaction
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of the State, as may be required to protect the safety of the public;
and
3. Conduct periodic inspections as deemed necessary.
B. The State agrees to:
1. Provide landscape construction for the Facility;
2. Provide maintenance of the pavement structure and curb (where
applicable), including any bike lanes that are within the pavement
structure and any associated bike lane pavement markings;
3. Provide maintenance of underground drainage, traffic signals and
associated appurtenances;
4. Cooperate with the County to determine requirements for
barricades, signs and traffic handling devices to be used by the
County during maintenance of the Facility; and
5. Conduct periodic inspections as deemed necessary.
C. The County and State fiuther agree that nothing contained in this
Agreement will be construed to:
1. 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
3. 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 County shall have the right to engage any responsible Contractor or Group to
perform or provide any portion of the County's Facility activities specified in this
Agreement. However, notwithstanding this provision, the County will continue to remain
responsible to the State to ensure performance of all its duties and responsibilities
specified in this Agreement. The County 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.
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In the event the County engages a Contractor to perform Facility maintenance activities
under this Agreement, the County 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 County engages and approves a responsible Group to perform Facility
maintenance activities under this Agreement, the County 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 County 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 maybe 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 County terminates this Agreement, as provided herein, the State may, in its sole
discretion, request reimbursement for any reasonable costs incurred by the State to
remove or repair the Facility, or restore the State's right of way to its original condition.
ARTICLE 7. Amendments.
Changes in time frame, chazacter, 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 County 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.
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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.
The County 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 maintenance activities by County employees, and to save the State
harmless from damages, to the extent of said insurance coverage and insofaz as it can
legally do so.
Where Facility activities are performed through a Contractor, the Contractor shall submit
to the County 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 County shall forwazd 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 : OUNI'Y:
Texas Department of Transportation
Attn: Director of Maintenance
4615 N.W. Loop 410 ~(Q ~y; /-Q ~ 'kpOZb'
San Antonio, Texas 78229
ARTICLE 12. Gratuities.
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 aze 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 County to adhere to this policy
may result in the termination of this Agreement.
IN TESTIMONY WHEREOF, the State and the County have executed duplicate
counterparts to effectuate this Agreement.
THE COUNTY OF KERR
THE STATE OF TEXAS
By: Certified as being executed for the
ose and effect of activating and/or
Title: ~ tn~.. ~ carrying out the orders, established
Date:T ~ ~ 0(p
List of Exhibits:
polrcres or work programs heretofore
approved and authorized by the Texas
Transportation Commission.
By:
David Casteel, P.E.
District Engineer
San Antonio District
"A" -Plans for the Landscape Project (Facility)
"B" -Acknowledgment of Conditions for Landscape Maintenance Work
"C" -Certificate of Insurance, Form 1560
U:My Documents/LandscapelLandsMaintAgreements/SP 98)/Spur 98 Agreemeut.doc
EXHIBIT "A"
Exhibit A contains preliminary plans for the landscaping referenced in this agreement.
The landscaping will be added to CSJ-0526-O1-008 by change order.