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 ,dated ,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. 1 ARTICLE 2. Project Funding. The State will provide for the cost of landscape construction of the Facility in the area 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 area 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 Control Devices (MUTCD) and to the satisfaction 2 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 further agee 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 maybe applicable. 3 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, 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 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. 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 : COUNTY:,, . Texas Department of Transportation Attn: Director of Maintenance ' ~ Lr~~ 4615 N.W. Loop 410 ; San Antonio, Texas 78229 _I ~rJ; l ~~71C '/ ~ Z~ 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 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 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 STATE OF TEXAS Certified as being executed 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. By: David Casteel, P.E. District Engineer San Antonio District - Date: List of Exhibits: "A" -Plans for the Landscape Project (Facility) "B" -Acknowledgment of Conditions for Landscape Maintenance Work "C" -Certificate of Insurance, Form 1560 U:My Documents/Landscape/LandsMaintAgreements/SP 98)/Spur 98 Agreementdoc THE COUNTY OF KERR EXHIBIT "A" Exhibit A contains preliminary plans for the landscaping referenced in this ageement. The landscaping will be added to CSJ-0526-O1-008 by change order. EXHIBIT "B" ACKNOWLEDGEMENT OF CONDITIONS FOR LANDSCAPE MAINTENANCE WORK The County of Kerr, hereinafter called the "County", and ,hereinafter called the "Group", recognize the need and desirability of landscaped highways and aze 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 yeaz. 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 County. • 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 afirst-aid kit and adequate drinking water while working on the right of way. 7xD0T Form 1560 (Rev 04/2002) Previous editions of this form may not be used. Page 1 of 2 Texas Department of Transportation (TxDOT) CERTIFICATE OF INSURANCE Price to the beginning of work, the Contractor shall obtain the minimum insurance and endorsements spedfied. Only ure TxDOT certifipte of insurance form is acceptable as proof of insurance for department contracts. Agents should complete the form providing all requested infomiauon then either fax or mail this form directly to the address listed on the back of this form. Copies of endorsements listed below are not required as attachments to this ceruficete. Insured: Street/Mailing Address: City/State/Zip: . Phone Number: Area Code WORKERS' COMPENSATION INSURANCE COVERAGE: ^..n.,.~e.t ,.,;rr. ~ tnr~h,e. s c„hmn~tinn in favor of TzDnT. Carrier Name: Carrier Phone #: Address: City, State, Zip: Type of Insurance Policy Number Effective Date Expiration Date Limits of Liability: Workers' Compensation Not Less Than: Statutory -Texas COMPREHENSIVE GENERAL LIABILITY INSURANCE: Endorsed with TxDOT as Additional Insured and with a Waiver of Subrogation in favor of TxDOT. Carrier Name: Carrier Phone #: Address: City, State, ZIp: Type of Insurance: Policy Number: Effective Date: Expiration Date: Limits of Liability: Comprehensive General Not Less Than: Liability Insurance Bodily Injury $ 500,000 each occurrence Propeny Damage $ 100,000 each occurrence $ 100,000 for aggregate OR OR Commercial General $600.000 combined single limit Liability Insurance COMPREHENSIVE AUTOMOBILE LIABILITY INSURANCE: Endorsed with TxDOT as Additional Insured and with a Waiver of Subrogation in favor of TxDOT. Carrier Name: Carrier Phone #: Address: City, State, Zip: Type of Insurance: Policy Number: Effective Date: Expiration Date: Limits of Liability: Comprehensive Automobile Liability Insurance OR Texas Not Less Than: Business Automobile Policy $ 250,000 each person Bodily Injury $ 500,000 each occurtence E 100,000 each occurrence Property Damage _r:__r. r..~. , ,,, a,.',....,......r. Carrier Name: Carrier Phone #: 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 Area Code Authorized Agent's Phone Number Authorized Agent Original Signature Date This Certificate of Insurance neither atfirtnatively nor negatively amends, extends, or alters the coverage afforded by the above insurence policies issued by the named insurance company. Cancellation of the insurance policies shall not be made until THIRTY DAYS AFfER the agent or the insurance company has sent written notice by certified mail to the contractor antl the Texas Depanment of Transportation. THIS IS TO CERTIFY to the Texas Department of Transportation acting on behalf of the State of Texas that the insurance policies named meet all the requirements stipulated and such polities are in full force and effect. If this /orm is sent by facsimile machine (fax), the sender adopts the document received by TzDOT as a duplicate original and adopts the signature produced by the receiving lax machine as the sender's original signature. The Texas Department of Transportation maintains the information collected through this form. With few exceptions, you are entitled on request to be informed abbut 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 endued to have us correct information about you that is incortect. EXHIBIT "C" Page 2 of 2 Texas Department of Transportation 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. 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 asj name as the insured or fist 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. The SIGNATURE of the agent is required. Stamped/typed/printed signatures are not acceptable. 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, COMPREHENSIVE GENERAL LIABILITY INSURANCE or COMMERCIAL GENERAL LIABILITY INSURANCE: If coverages are specified separately, they must be at least these amounts: Bodily Injury $500,000 each occurrence Property Damage $100,000 each occurrence $100,000 for aggregate MANUFACTURERS' or CONTRACTOR LIABILITY INSURANCE is not an acceptable substitute for Comprehensive General Liability Insurance or Commercial General Liability Insurance. COMPREHENSIVE AUTOMOBILE LIABILITY INSURANCE or TEXAS BUSINESS AUTOMOBILE POLICY: The coverage amount for a Texas Business Automobile Policy or Comprehensive Automobile Liability may be shown as a minimum of $600,000 Combined Single Limit by a typed or printed entry and deletion of the specific amounts listed for Bodily Injury and Property Damage. BASIC AUTOMOBILE LIABILITY INSURANCE is not an acceptable substitute for Comprehensive Automobile Liability Insurance or Texas Business Automobile Policy.