Ordinance No. 12,166ORDINANCT" NO. 12,166
AN ORDINANCF, OFTHF CITY C'OLMI'll, OFTIJFCITY OF BAYTOWN,
TEXAS, AUTHORIZING 4TIF' CITY MANAGER TO I; ].CUTE AND THE,
CITY CLERK TO ,VFTFS'F TO A CiATEWAY MONUNIt,"N'Y AGREEMENT
Liu; IT11THL'STATI" DF'PARTN4F--''I OF
TRANSPORTATION, AND PROVIDING ]--'OR T111" FJ,'I"F`1CTIVI'-1 DATE
J1 IE'RE01'.
BF-' IT ORDAINF"D M" "H II; CITY C()UNCIL OF T111" CITY OF BAYT'OWN,
TEXAS:
Section 1: That the City Council ot'llic C'lty (fl' Raytown, Texas, hereby authorizes
the City Manager tcu execute and tile City Clerk, to attest to a Gateway Monument Asy-cement
with the State of Texas through the Texas Department 01, Transportation, A copy of said
, agr
cement is attached hereto as L'.\hibit -A,-and incorporated herein liar ll intents and purposes.
Section 2: "I'llis ordinance S11,111 take cfTcct immediately 1'i-om and after its passage by
the City C"Ouncil of' tile City of Baytawn
City of'Baytown this the R24F"' ciaay tculd:I anaa r.yY,l2Ib y 3tlle affirniative vote of, le City Council cal' the
S I I II N IL 1) 0 N C' A R I M a ,or
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KITA 131 ClcrkV,
APPROVI"D AS TO FORM:
ck N�ACIO RA N/1 I R F,'Z, Sly., City Attorney
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Exhibit "A"
GATEWAY MONUMENT
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 City of Baytown, acting through its duly authorized officials, as evidenced
by Resolution or Ordinance Number , dated hereinafter
called the "Local Entity ".
BACKGROUND
The State owns and maintains a system of highways, including IH 10 in Harris
County, Texas, for public use and benefit. The State agrees to allow for the
construction of a Gateway Monument within the State's right of way and the
Local Entity agrees to construct the Monument and to conduct the long term
maintenance for this structure located along IH 10 East from Crosby- Lynchburg
Road to SH 330, referred to as the "Gateway Monument," more specifically
described in Attachment "A," Project Map, which is attached hereto. The Local
Entity will conduct the Monument's long term maintenance activities through the
use of Local Entity forces, contractors, or other means satisfactory to the Local
Entity and the State.
THEREFORE, in consideration of the mutual promises contained in this
Agreement, the parties agree to the following.
AGREEMENT
SECTION 1. PERIOD OF THE AGREEMENT
This Agreement becomes effective when finally executed by the State and shall
continue unless or until otherwise terminated as provided by this agreement.
SECTION 2. FINANCIAL RESPONSIBILITIES
All costs covered by this agreement including design, engineering, testing,
construction, installation, access for maintenance, maintenance, labor, materials,
supplies, traffic control, additional improvements, and if required, removal of the
Gateway Monument, shall be the responsibility of the Local Entity.
Any administrative costs associated with the Gateway Monument that are
incurred by the State, such as those related to proposal review, as well as
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developing, issuing, and monitoring the Agreement for approved the Gateway
Monument project shall be the responsibility of the State.
SECTION 3. RESPONSIBILITY OF THE PARTIES
A. The Local Entity agrees to:
Provide Gateway Monument design plans to the State before
execution of this agreement according to TxDOT policy and,
upon final approval, furnish and construct the Gateway
Monument according to plans approved by the State, which are
set out more specifically in Attachment "B," Local Entity's Final
Gateway Monument Proposal, which is attached to this
Agreement, and include any other related installation items that
may be required; and
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
of the State related to this project, as may be required to protect
the safety of the public; and
3. Conduct periodic inspections of the Gateway Monument as
deemed necessary; and
4. Provide for the construction and maintenance of all associated
appurtenances that are considered by the State to be a part of
the project. The Local Entity further agrees to remove such
items from the project's location and restore the area to the
satisfaction of the State upon termination of this Agreement in
accordance with Section 9.
B. The State agrees to:
1. Review and evaluate the Gateway Monument proposal
submitted by the Local Entity with due consideration to safety
(location, potential for motorist distraction, accessibility for
maintenance, etc.), aesthetics, community support and
maintainability; and
2. Coordinate with other TxDOT Divisions, as appropriate, as well
as interact with the Federal Highway Administration (FHWA) for
input, review and approval; and
3. Cooperate with the Local Entity to determine the requirements
for barricades, signs, and traffic handling devices to be used by
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the Local Entity during the construction and maintenance of the
Gateway Monument; and
4. Provide maintenance access to the project location for the Local
Entity or for its Contractor or group, and if possible, from outside
the highway right of way; and
5. Conduct periodic inspections of the Gateway Monument as
deemed necessary.
C. The Local Entity and State further 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.
SECTION 4. DESIGN AND PLACEMENT OF GATEWAY MONUMENTS
A. Gateway Monuments shall be designed and placed so as to:
1. Be freestanding.
2. Feature only the letters of the community name and /or
officially adopted seal.
3. Include, if required by TxDOT, approved protective graffiti
coatings.
4. Be appropriate to its proposed setting and community context.
5. Be in proper size and scale with its surroundings.
6. Be composed of materials that are durable for the projected life
span of the project.
7. Be located beyond the clear zone, for both main lane traffic and
frontage road traffic.
8. Be located where maintenance can be safely performed, as
specified in the Gateway Monument Agreement, and in
conformance with TxDOT procedures.
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9. Be subject to the review and approval of TxDOT in
consideration of design, size, and scale for appropriate
integration on urban or rural highway features.
B. Gateway Monuments shall not:
1. Be allowed within the center median areas of interstate highway
rights -of -way.
2. Contain religious, political, special interest, private, or
commercial messages of any sort, including, but not limited to,
symbols, logos, business names, trade names, jingles, or
slogans.
3. Contain any displays of any sort, advertising, decorative
banners, flags, or flag poles.
4. Display telephone numbers, street addresses, or Internet
addresses.
5. Interfere with airspace above the roadway.
6. Create a distraction to the motoring public; for example, the
Gateway Monument shall be large enough to interpret at
highway speed, but not be so large that it demands attention
from the motorist.
7. Include reflective or glaring surface finishes.
8. Include illumination that impairs or distracts the vision of
transportation system users. Other lighting may be permitted.
9. Display blinking or intermittent or moving lights, including
changeable message signs, digital displays, or lighted static
displays such as LED.
10. Include moving elements (kinetic art) or simulate movement.
11. Include water features of any sort.
12. Interfere with official traffic control devices, nor interfere with
the operational right -of -way above the roadway.
13. Be placed within State right -of -way upon trees, or painted or
drawn upon rocks or other existing natural features.
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14. Make use of or simulate colors or combinations of colors
usually reserved for official traffic control devices described in
the Texas Manual on Uniform Traffic Control Devices.
15. Require the removal of trees or other vegetation for visibility, or
harm trees during construction. Pruning of tree branches or
roots, and removal of shrubs should be avoided.
16. Negatively impact existing highway features, including existing
signs, irrigation systems, necessary drainage patterns, and
facilities.
SECTION 5. MAINTENANCE
The Local Entity shall provide regularly scheduled maintenance, as described in
Attachment "B," the Local Entity's Final Gateway Monument Proposal, for its
projected lifespan. Maintenance shall include, but not be limited to, restoration
work to maintain the integrity of the approved Gateway Monument, maintenance
of any associated landscaping or lighting, and graffiti removal. Gateway
Monuments shall be kept clean, free of graffiti, and in good repair. Graffiti
removal shall conform to the most current TxDOT policies and guidelines, which
require prompt removal of offensive messages and timely removal of all other
graffiti. Maintenance practices of the Local Entity or its agent shall protect air
and water quality as required by federal and state law.
SECTION 6. MONUMENT REMOVAL
The Local Entity shall remove the Gateway Monument covered by this
agreement, if in the opinion of TxDOT, it creates safety or operational concerns
due to deterioration or inadequate maintenance or upon termination of the main
Gateway Monument Agreement. TxDOT will notify the Local Entity when it has
determined that the Gateway Monument requires special attention. In the event
the Local Entity fails to maintain, repair, rehabilitate, or remove the Gateway
Monument in a timely manner, TxDOT may choose to remove the Gateway
Monument after thirty (30) days following notification to the Local Entity, and bill
the Local Entity for all costs of removal and restoration of the area.
TxDOT reserves the right to remove the Gateway Monument due to construction,
rehabilitation, violation of the terms of this agreement, or other necessary
activities affecting the transportation facilities without any obligation,
compensation to, or approval of the Local Entity. TxDOT will strive to notify the
Local Entity of its intent to remove the Gateway Monument to allow for timely
removal and salvage by the Local Entity, if possible.
TxDOT reserves the right to remove or alter any Gateway Monument that
presents an immediate safety hazard to the public without delay or advanced
notification to the Local Entity.
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SECTION 7. USE OF CONTRACTOR OR GROUP
The Local Entity shall have the right to engage any responsible Contractor or
group to perform or provide any portion of the Local Entity's Gateway Monument
activities specified in this Agreement. However, notwithstanding this provision,
the Local Entity shall continue to remain responsible to the State to ensure
performance of all its duties and responsibilities specified in this Agreement. The
Local Entity 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 Local Entity engages a Contractor to perform Gateway
Monument construction or maintenance activities under this Agreement, the
Local Entity shall ensure that said Contractor shall indemnify, to the extent
permitted by law, 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
Gateway Monument construction or 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 Local Entity engages and approves a responsible group to
perform Gateway Monument construction or maintenance activities under this
Agreement, the Local Entity shall require and ensure that said Contractor or
group follow all the terms of this Agreement as well as all Attachments.
SECTION 8. INDEMNIFICATION
A. The Local Entity 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.
B. The Local Entity shall also indemnify and save harmless, to the extent
permitted by law, 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
Entity, its agents, or its employees.
SECTION 9. 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
Interlocal- Interlocal_Gateway_Mon 5 02/11/2011
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C. By the State, in the event the State determines that the Gateway
Monument is not in the best interest of the traveling public.
If either party terminates this Agreement, as provided herein, the Local Entity will
be responsible for repair or removal of the Gateway Monument. In the event that
the Local Entity does not provide the repair or removal services, the State may
remove or repair the Gateway Monument and shall be entitled to reimbursement
from the Local Entity for any reasonable costs incurred by the State to restore the
State's right of way to its original condition.
SECTION 10. AMENDMENTS
Amendments to this Agreement shall be in writing and shall be executed by both
parties.
SECTION 11. AUDIT
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.
SECTION 12. SUCCESSORS AND ASSIGNS
Subject to the provisions of Section 7, the Local Entity 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.
SECTION 13. REMEDIES
This Agreement shall not be considered as specifying the exclusive remedy for
any default. All legal remedies may be pursued by either party and shall be
cumulative.
SECTION 14. INSURANCE
If this agreement authorizes the Local Entity or its contractor to perform any work
on State right of way, before beginning work, the entity performing the work shall
provide the State with a fully executed copy of the State's Form 1560 Certificate
of Insurance verifying the existence of coverage in the amounts and types
specified on the Certificate of Insurance for all persons and entities working on
the State right of way. This coverage shall be maintained until all work on the
State right of way is complete. If coverage is not maintained, all work on State
right of way shall cease immediately, and the State may recover damages and all
costs of completing the work.
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SECTION 15. NOTICES
All notices to either party by the other under this Agreement shall be delivered
personally or sent by U.S. mail, postage prepaid, addressed to such party at the
following addresses:
STATE: LOCAL ENTITY:
Texas Department of Transportation City of Baytown
District Engineer City Manager
7600 Washington Ave. 2401 Market Street
Houston, Texas 77007 Baytown, Texas 77520
SECTION 16. 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 Local Entity to adhere to this policy may result in
the termination of this Agreement.
SECTION 17. SIGNATORY WARRANTY
Each signatory warrants that the signatory has necessary authority to execute
this agreement on behalf of the entity represented.
SECTION 18. INCORPORATION OF PROVISIONS
Attachments "A" and "B" are made part of this contract. The parties shall comply
with the provisions of Attachments "A" and "B" as if they were set forth in full
within the body of this contract.
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THEREFORE, the Parties have executed this Agreement in duplicate originals.
THE CITY OF BAYTOWN
By:
Title:
Date:
Attest:
City Clerk
Approved as to form:
City Attorney
List of Attachments:
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:
District Engineer
Houston District
Date:
"A" — Project Map for Gateway Monument
"B" - Local Entity's Final Gateway Monument Proposal
Inter local- Interlocal_Gateway_Mon 8 02/11/2011
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ATTACHMENT A
Project Map for Gateway MonUment
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ATTACHMENT B
Local Entity's Final Gateway Monument Proposal
This sheet intentionally left blank.
See pages 11 thru 23
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