Section 12.5 - Landscape Cost Sharing Program(a) Purpose. The Landscape Cost Sharing Program (Program) allows individuals, private businesses, organizations, and local governments an opportunity to support the aesthetic improvement of the state highway system by sharing the project development, establishment, and maintenance cost of landscaping the state highway system. This section sets forth policies and procedures governing the Program.(b) Participation. (1) Eligible entities. An individual, private business, organization, or local government may share in the cost of the development, establishment, and maintenance of the landscaping of a segment of the state highway system upon approval of the district engineer. An individual, private business, or organization is eligible to participate: (A) as a donor through the local government by providing to the local government donations in an amount equal to not less than 25% of the local government's share of the project cost; or(B) as a non-governmental donor by providing donations directly to the department if the donor is located in the county or a county adjacent to the county in which the project site is located.(2) Compliance with other rules. The department will process a donation under paragraph (1)(B) of this subsection in accordance with the requirements of Chapter 1, Subchapter M of this title (relating to Donations). If a provision of this section conflicts with a provision of Chapter 1, Subchapter M of this title, this section will prevail.(3) Sign. The department may install a sign at the project site announcing the local government's or donor's participation in the Program. The sign must conform to the Texas Manual on Uniform Traffic Control Devices. On approval of the district engineer of the district in which the project site is located, a municipality may erect and maintain a sign within the municipality's jurisdiction announcing participation in the Program.(c) Application.(1) A local government or donor that desires to participate or to continue to participate in the Program shall submit an application to the district engineer of the district in which the project site is located.(2) The application shall be in the form prescribed by the department and shall at a minimum include:(A) the date of application;(B) the name, telephone number, and complete mailing address of the local government or donor;(C) the highway section the local government or donor is interested in developing;(D) the project concept plan, containing sketches, drawings, estimates, specifications, and descriptive text as may be required by the department to evaluate the project under required general, site, and design considerations, to determine the proposed design intent, and to estimate the amount of department participation; and(E) a statement, chart, or spreadsheet based on the project concept plan, which illustrates the recommended responsibilities of the department and the local government and, if applicable, the donor (this statement, chart, or spreadsheet shall contain fully itemized cost figures for each portion of the project as may be required for the department to evaluate the recommended fair-market values for acceptable material and services proposed).(d) Conditions. In order to participate in the Program, each project must meet the department's approval under general, site, and design considerations. (1) General considerations. Normally, work on state highway right-of-way will be performed by state forces or by contractors selected and administered by the department. The district engineer of the district in which the project site is located may grant an exception to allow a local government or donor to perform work on state highway right-of-way under this Program. (A) A local government or donor may participate in the joint beautification of the existing state highway system subject to the following restrictions.(i) If the project is determined by the department to be a highway-landscaping project, the department will evaluate accepting labor, equipment, materials, design services, and cash as the contribution toward the proposed project.(ii) If the project is determined by the department to be a pedestrian landscaping project, the department's participation will be limited to furnishing materials only for installation.(B) Unless waived by the department, projects shall exceed $25,000 if constructed by the department.(C) The cost of any previous work by the local government or donor shall not be included as a portion of the contribution toward the project.(D) For a project to be evaluated by the department for work under the Program, the minimum value of acceptable non-cash contributions plus cash contributions by the local government or donor must equal or exceed $2,500.(E) If the department is to provide materials for the project, applicable statutes, rules, and procedures relating to the purchase of materials using state funds will apply.(F) If the department is to provide for the construction of any portion of the project, applicable statutes, rules, and procedures relating to scheduling, processing, and administering a highway improvement project through the department's highway letting process will apply.(2) Site considerations. For sites to be approved by the department, the following site conditions must be met. The site must:(A) not be scheduled for future construction as defined within the department's current unified transportation plan which would conflict with the activities proposed on the project;(B) contain sufficient right-of-way to reasonably permit planting and landscaping operations without conflicting with safety, geometric, and maintenance considerations;(C) not contain overhead or underground utilities, driveways, pavement, sidewalks, or highway system fixtures including traffic signage or signalization which will conflict with the planting or landscaping operations proposed under the project; and(D) not obstruct or interfere with existing drainage conditions along the site.(3) Design considerations. For sites to be approved by the department, the following design considerations must be met. (A) The project design, as shown on the project concept plan, must be acceptable to the department.(B) Unless otherwise approved by the department, the project design may not include the following design elements: (i) plant material or fixtures which, in the opinion of the department, require an intensive level of continued establishment and maintenance in order to assure the effectiveness and function within the design;(ii) flagpoles or pennant poles;(iii) fountains or water features; and(iv) statuary, sculpture, or other art objects.(C) The following items, if considered by the department as an acceptable element of the project design plan, may not be included as a contribution cost, and will not be furnished or installed by the department:(i) benches and pedestrian seating;(ii) pedestrian or historic lighting or illumination systems; and(iii) trash or refuse receptacles.(D) The local government or donor must fully illustrate the recommended division of responsibilities as necessary for the department to evaluate the proposed manner of project implementation, establishment, and maintenance if applicable. The illustration of recommended project responsibilities shall at a minimum include: (i) preparing the project design plan, provided that the cost of providing the project design plan for a pedestrian landscaping project shall be the sole responsibility of the local government or donor, and shall not be included as a portion of its contribution toward the project;(ii) furnishing and installing required material; and(iii) performing project establishment and maintenance, if required, provided that the cost of performing project establishment and maintenance on a pedestrian landscaping project shall be the sole responsibility of the local government or donor and shall not be included as a portion of its contribution toward the project.(E) The local government or donor must fully itemize and document the proposed cash and non-cash contribution available to support the project. This itemization and documentation shall include at a minimum the following items:(i) amount of cash to be provided to the department;(ii) non-cash value of each individual item of material to be furnished by the local government or donor;(iii) cost of each individual item or material to be furnished by the department;(iv) non-cash value of labor and equipment necessary to install each individual item of material if performed by the local government or donor;(v) cost of installing each individual item of material if performed by the department; and(vi) non-cash value of the project design plan if furnished by the local government or donor, provided the maximum acceptable non-cash value of furnishing the project design plan, based upon the selected project cost, including project establishment and maintenance for highway landscaping projects and excluding project establishment and maintenance for pedestrian landscaping projects, shall not exceed 8.5% for projects up to and including $200,000, and 7.5% for projects greater than $200,000.(e) Amount of departmental participation. (1) Highway landscaping projects within the existing city limits of a city. The department, after approving the project under general, site, and design considerations, will participate in up to 50% of the total cost of the project including project establishment and maintenance, and preparation of the project design plan.(2) Pedestrian landscaping within the existing city limits of a city. The department, after approving the project under general, site, and design considerations, will participate by furnishing material only up to but not exceeding 50% of the total cost of project development, excluding project establishment and maintenance and the preparation of the project design plan.(3) Highway landscaping projects outside the existing city limits of a city. The department, after approving the project under general, site, and design considerations, will participate in up to 50% of the total project development, establishment, maintenance and design cost.(4) Pedestrian landscaping projects outside existing city limits. Unless otherwise approved, the department will not participate in the cost of these projects under the Program.(f) Agreement. (1) If the proposed project as submitted under subsection (c) of this section is approved by the department, the local government or donor shall enter into a written agreement with the department providing participation in the Program. The agreement becomes effective when finally executed by the department and shall terminate upon satisfactory completion of the work as stipulated within the agreement. Work on any phase of the project may not begin until the agreement is fully executed by both parties.(2) The agreement shall be in the form prescribed by the department and shall at a minimum include the following terms.(A) The project design plan shall consist of plans, sketches, drawings, notes, estimates, and specifications as required by the department.(B) Any changes to the agreement shall be enacted by written amendment.(C) The parties shall not assign or otherwise transfer their obligations under this agreement except with prior written consent of the other party.(D) The project design plan shall be subject to the review and satisfactory approval by the department prior to a departmental bid opening.(E) Violation or breach of contract terms shall be grounds for termination of the agreement by the department. In the event of disputes as to obligations under the agreement, the department's decision shall otherwise be final and binding.(F) The local government or donor and its contractors, if any, shall to the extent provided by law, furnish certificates of insurance, guarantees of self-insurance if appropriate, and indemnification as may be prescribed by the department.(G) The department, at the local government's or donor's expense, shall provide, erect, and maintain any barricades, signs, and traffic handling devices necessary to protect the safety of the travelling public while performing any work on the project. The department in its discretion may allow the local government to provide, erect, and maintain barricades, signs, and traffic handling devices required to comply with this subparagraph.(H) The department's employees shall not accept any benefits, gifts, or other thing reasonably regarded as economic gain or advantage.(3) The agreement shall include the funding arrangement and payment schedule.(g) General limiting conditions and eligibility. Because of administrative, legislative, and financial constraints, the Program shall be subject to the following terms. (1) The department will consider such factors as width of right-of-way, geometrics, congestion, sight-distance, and maintenance requirements in determining the acceptability and/or amount of departmental participation in any proposed project.(2) The department will not erect or replace a sign announcing participation in the Program, unless the local government or donor pays the cost of manufacturing and erecting the sign. The cost of manufacturing and erecting the sign will not be included as a portion of the local government's or donor's contribution toward the project.(3) Work under the Program shall not be combined with any other landscape-related programs sponsored by the department.(4) If any actions are determined to be contrary to any legislative restrictions or any restrictions on the use of appropriated funds for political activities, the department shall have the right to take any and all necessary remedial actions, including, but not limited to, the removal of the signs displaying the local governmental entity's or donor's name.(h) Modification/termination of agreement. The agreement as cited in subsection (f) of this section may be modified in any manner at the sole discretion of the department.43 Tex. Admin. Code § 12.5
The provisions of this §12.5 adopted to be effective December 8, 2011, 36 TexReg 8243; amended to be effective April 16, 2014, 39 TexReg 2958