HomeMy WebLinkAboutContract 44856 (2), � 1
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AGREEMENT
FOR MAINTENANCE AND LANDSCAPING SERVICES
THIS MAINTENANCE AGREEMENT (Maintenance Agreement), made and entered into as
of the last day signed by a Party hereto, is by and between the City of Fort Worth, a Texas
home rule municipal coiporation (City) and University of North Texas Health Science Center,
a Texas institution of higher education (Developer). City and Developer ar•e sometimes referred
to as a Party or Parties.
SECTION 1
DESCRIPTION OF PROPERTY
The City and Developer hereby agree that Developer will provide, furnish, and perfoim the
seivices specified herein on City-owned medians and rights-of-way (the Project Sites) located on
Montgomeiy Street as further described in this Maintenance Agreement in Exhibit "A", attached
and incoiporated into this Maintenance Agreement.
SECTION 2
DUTIES AND RESPONSIBILITIES
2.01 Developer shall commence, cai7y on, and provide such seivices in accordance with this
Maintenance Agreement and its attachments and all applicable laws. In providing such seivices,
Developer shall take such steps as are appropriate to ensure that the worlc involved is properly
coordinated with any related work performed by the City or the City's authorized repi•esentative.
2.02 Developer represents that it has or will secure, at its own expense, all materials, supplies,
machinery, equipment, tools, superintendence, labor, personnel, insurance, and other accessories
and services necessaiy to provide maintenance of the following elements ("Improvements"), all
of which are to be installed pursuant to and as more particularly described in Construction
Contract between Developer and Scott Tucker Construction Company LLC, Developer's
General Contractors, which contract is the subject of Community and Facilities Agreement
Contract No. 2012-087 between Developer and the City of Fort Worth Transportation and Public
Works Department (such Consh-uction Contract and Community and Facilities Agreement
Contract are i�eferred to herein as "Contracts"):
a. Maintain landscaping and private iirigation systems, components, and sumps.
Remove and replace dead vegetation. Malce sure any cracks in sidewallcs are weed
free. Trees and sluubs need to be trimmed and pruned according to their species.
b.
c.
d.
e.
f.
g•
Make sure trash is piciced up on a regular basis
Maintain special sidewallc, ADA ramps, brick pavers, and pavement n•eatments.
Maintain all PVC stub outs and drain lines connected to City stor�rn drain inlets.
Maintain landscape uplights, step lights, and led ingrade lights.
Maintain all the t�ee well types
Maintain Banners attached to Street lights according to City policy. _
Maintain all sleeves. -
C3FPIC�A�. ������
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2.03 The City shall be responsible for maintaining its streets and travel lanes excluding the
aforementioned designated on-street parking and special pavement treatments in accordance with
normal City policies and procedures. The City shall take such steps as ar•e appropriate to ensure
that the worlc involved is properly coordinated with any related work performed by Developer or
the Developer's authorized representative.
2.04 In the event that any City-owned property, such as utilities, equipment, turf, etc., are
damaged or destroyed during watering, or maintenance of the landscape improvements due to
negligence or acts of omissions of Developer, Developer shall be responsible for all r•epairs or
replacements.
2.05 In the event Developei•, its successor or assigns, fails to maintain the areas described in
Section 2.02 in the manner required by this Maintenance Agreement, City shall provide written
notice of the non-compliant conditions to Developer, its successor or assigns. Developer, its
successors or assigns, shall make any necessaiy repairs to comply with this Maintenance
Agreement within thirty (30) days of receipt of such written notice or, if such repairs are not
reasonably able to be completed within thu-ty (30) calendar days, Developer shall have, within
that period, begun worlc on such repairs and shall diligently pursue them to completion,
Provided, however, that if the non-compliant conditions creates a condition which poses an
immediate threat to life, health, or propei-ry such repair shall be completed within thu-ty (30) days
of r•eceipt of written notice. If Developer, its successors or assigns, does not make such repairs
as provided herein, the City may enter upon the Project Sites and take whatever steps reasonably
necessaiy to correct the non-compliant conditions and to charge the costs of such repairs to
Developer, its successors and assigns.
2.06 In the event the City pursuant to this Maintenance Agreement, perfoi-ms any wor•k of any
nature that is Developer's obligation hereunder and which Developer has failed to perform, or
expends any funds in perfoi7nance of said work for labor, use of equipment, supplies, materials,
and the lilce that is Developer's obligation hereunder and which Developer has failed to perform,
Developer, its successors or assigns, shall reimburse the City upon demand, within thirty (30)
days of receipt thereof foi• the cost difference between the City's standard street pavement design
and the Improvements installed by the Developer and for the total cost of any repairs that are
outside of the street pavement area. In the event that Developer or its successors or assigns fails
to pay the City for the costs incurred under this section, the City shall impress a lien for the costs
of such work upon other lots within the Project Site area owned by Developer. Such lien shall be
perfected by filing in the office of the County Clerlc of Tarrant County, Texas an affidavit
identifying the property to be charged with such lien, stating the amount thereof, and making
reference to this Maintenance Agreement. A release of lien shall be filed in the office of the
County Clerlc of Tar7ant County, Texas upon reimbursement by Developer for all reasonable and
actual costs incurred by the City for the worlc perfoimed.
2.07 In the event the City performs any worlc of any nature, or expends any funds in
performance of said work, on any of the areas requiring maintenance by Developer as described
in Section 2.02, the City shall return those areas to theu or•iginal condition upon completion of
the work.
Page 2 of 10
SECTION 3
TERM OF AGREEMENT
This Maintenance Agreement shall be recorded among the land records of Tai7•ant County,
Texas, and shall constitute a covenant running with the land, and shall be binding on Developer
and the City, and their successois and assigns, and any other successors in interest with respect to
the Project Sites.
SECTION 4
TITLE AND CONSTRUCTION
The Pai-ties acicnowledge that the Improvements to be maintained as provided in this
Maintenance Agreement are the subject of the Contracts and that all necessaiy reviews,
approvals, consents, inspections and modifications of such Improvements, if any, have been or
will be made pursuant to those Contracts. Subject to the provisions of the Contracts, Developer
shall retain ownership of the landscaping plants, special sidewallc and pavement pavers, benches,
project signage, special lighting and other Improvements located in the City right-of-way
puisuant to the Contracts.
SECTION 5
RIGHT OF ACCESS
5.01 City does not relinquish the right to control the management of the Project Sites, or the
right to enforce all necessary and proper iules for the management and operation of the same.
City tlu�ough its Manager, Transportation and Public Worlcs Director, police and fu�e personnel,
and other designated representatives, has the right at any time to enter any portion of the Project
Sites (without causing or constituting a teimination of the use or an interference of the use of the
Project Sites by Developer) for the puipose of inspecting and maintaining the same and doing
any and all activities necessaiy for the proper conduct and operation of public properry; provided
this shall not authorize or empower City to direct the activities of Developer or assume liability
for Developers activities.
5.02 The City will have the right but not the obligation to make routine inspections of the
Pr•oject Sites. In the event the City observes non-compliance of an area or a condition which
poses an immediate tlu•eat to life, health, or property, the City shall notify Developer in writing
and give a reasonable period of time to coi-��ect the area in accordance with Section 2.05 of this
Maintenance Agreement.
5.03 Developer shall inspect the areas described in Section 2.02 and submit an inspection
report to the City annually. The purpose of the inspection is to assure safe and proper functioning
of the Improvements described in Section 2.02. The inspection shall cover the entire areas
described in Section 2.02, and portions thereof which need maintenance or replacement to
perfoi�n their design function shall be noted in the inspection report along with the con•ective
actions to be taken.
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SECTION 6
INDEMNIFICATION
6.01 TO THE EXTENT ALLOWED BY THE CONSTITUTION AND LAWS OF THE
STATE OF TEXAS, DEVELOPER, ITS SUCCESSORS OR ASSIGNS, AGREES TO
DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS,
VOLUNTEERS, AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS,
LA WSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCL UDING, B UT NOT
LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED
DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS)
AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE
OUT OF OR BE OCCASIONED BY (i) DEVELOPERS BREACH OF ANY OF THE
TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR
OMISSION OR INTENTIONAL MISCONDUCT OF DEVELOPER, ITS OFFICERS,
AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR
SUBCONTRACTORS, RELATED TO LANDSCAPE MAINTENANCE OR THE
PERFORMANCE OF THIS AGREEMENT; EXCEPT THAT THE INDEMNITY
PROVIDED FOR IN THIS PAIZAGRAPH SHALL NOT APPLY TO ANY LIABILITY
RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS,
AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS, AND IN THE EVENT OF
JOINT AND CONCURRENT NEGLIGENCE OF BOTH DEVELOPER AND CITY,
RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. NOTHING HEREIN
SHALL BE CONSTRUED AS A WAIVER OF THE CITY'S OR DEVELOPER'S
GOVERNMENTAL IMMUNITYAS FURTHER PROVIDED BY THE LAWS OF TEXAS.
6.02 Developer, its successors or assigns, covenants and agrees that City shall in no way nor
under any circumstances be responsible for any property belonging to Developer, its members,
employees, agents, contractors, subcontractors, invitees, licensees, or trespassers, which may
be stolen, destroyed, or in any way damaged, and to the extent allowed by the constitution and
laws of the State of Texas, Developer hereby indemnifies and holds haimless City from and
against any and all such claims. The City does not guarantee police protection and will not be
liable for any loss or damage sustained by Developer, its members, employees, agents,
contractors, subcontractors, invitees, licensees, or trespassers on any of the premises.
6.03 It is further agreed that the acceptance of this Release shall not constitute a waiver by
the City of Fort Worth of any defense of goveinmental immunity, where applicable, or any
other defense recognized by the Statutes and Court decisions of this State.
SECTION 7
INSURANCE
Developer shall not commence worlc under this Maintenance Agreement until it has obtained all
the insurance required under the Contracts and the City has approved such insurance.
A. Commei•cial General Liability Insur•ance: Developer, as an agency of the State of
Texas, is insured for general liability insur•ance under a self-insurance program
covei•ing its limits of liability. Under the provisions of Chapter 101 of the Texas
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Tort Claims Act, Developer is limited to liability for pi•operty damage and
peisonal injuiy proximately caused by the wrongful act or omission or the
negligence of employees or• agents of Developer acting within the course and
scope of theu• employment in amounts not to exceed (i) $250,000.00 for each
person and $500,000.00 for each single occurrence for bodily injuiy or death, and
(ii) $100,000.00 for each single occui7ence for injuiy to or destruction of
property. Under• the foregoing self-insurance program and without waiver of any
defense and to the extent not prohibited by the constitution and laws of the State
of Texas, Developer may provide contribution for liabilities ar•ising out of its acts
or omissions in connection with this Maintenance Agreement and use of the
Project Sites.
B. Worlcer's Compensation Insurance: Developer, as an agency of the State of
Texas, is insured for worlcer's compensation insurance by and through the State
Office of Rislc Management.
SECTION 8
INDEPENDENT CONTRACTOR
Developer shall perfo�m all worlc and services hereunder• as an independent contractor and not as
an officer, agent, servant or employee of the City. Developer shall have exclusive control of, and
the exclusive right to contr•ol the details of the wor•lc perfoimed hereunder, and all persons
performing same, and shall be solely responsible for the acts and omissions of its ofiicers,
agents, employees and subconsultants (or subcontractors). Nothing herein shall be constilted as
creating a partnership or joint venture between the City and Developer, its officers, agents,
employees and subconsultants (or subcontractoYs), and doctrine of respondent superior has no
application as between the City and Developer.
SECTION 9
LICENSES AND PERMITS
Developer shall comply with all applicable fedei•al, state and local laws, iules and r•egulations as
well as with all applicable regulations, restr•ictions and requii•ements of the police, fire and health
depai-tments now or hereafter in effect which are applicable to its operations. Developer shall
obtain and keep in effect at its own cost and expense all licenses, peimits, and taxes incun•ed or
required in connection with this Maintenance Agreement and its operations hereunder.
SECTION 10
LIENS
Developer, its successors oi• assigns, agrees that it shall do no act nor make any contract that may
create or be the foundation for any lien upon or interest in the City's property, and any such
contract or lien attempted to be created shall be void. Should any puiported lien on City property
be created or filed, Developer, its successors or assigns, at its sole expense, shall liquidate and
discharge same within thirty (30) days after notice fi•om City to do so.
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SECTION 11
TERMINATION AND DEFAULT
11.01 Subject to the provisions of Section 12.02 below, in the event Developer fails to comply
with any of the teims and conditions of this Maintenance Agreement after notice and the passage
of the appropriate cure period provided in this Maintenance Agreement, City shall have the right,
and without further• notice, to declare this Maintenance Agreement immediately terminated by
written notice to Developer and to enter• into and take full possession of the Project Sites save
and except such personal property and equipment as may be owned by Developer. In the event
of such cancellation of this Maintenance Agreement by the City, all rights, duties and privileges
of Developer hereunder shall cease and teiminate.
11.02 Developer shall be notified by written conespondence of Developer's failur•e to comply
with any of the teims and conditions of this Maintenance Agreement. Developer shall have
thirty (30) calendar days fi•om the date of written correspondence to coi-�•ect deficiencies or, if
such deficiencies are not reasonably able to be corrected within thirty (30) calendar days,
Developer shall have, within that period, begun worlc on such coi7•ections and shall diligently
purse them to completion.
11.03 Upon tennination, the parties shall be released fi•om all obligations contained in this
Maintenance Agreement except for the indemnification requirements found in Section 6 of this
Maintenance Agreement.
11.04 Termination notice shall be considered rendered when placed in the United States Postal
Seivice for deliveiy to the other parry in accordance with Section 14.
SECTION 12
NON-DISCRIMINATION/DISABILITIES
Developer, in its maintenance, occupancy, or use of said the Project Sites shall not discriminate
against any person or• persons because of race, age, gender•, religion, color, national origin, sexual
orientation, or disability.
SECTION 13
NOTICES
Any notice requu•ed shall be sufficient if deposited in the U.S. Mail, postage prepaid and
addressed to the other parry as follows:
CITY
City of Fort Worth
Transportation & Public Worlcs Department
George Behmanesh
1000 Tlu�ocl�norton
Fort Worth, Texas 76102
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With cop�
City Attor-ney's Office
1000 Throckmorton
Fort Worth, Texas 76102
DEVELOPER
Univeisity of North Texas Health Science Center
3500 Camp Bowie Blvd.
Fort Worth, Texas 76107
With copy to:
Office of General Counsel
University of North Texas System
1901 Main Street
Dallas, TX 75201
SECTION 14
VENUE AND JURISDICTION
This Maintenance Agreement shall be goveined by the laws of the State of Texas. Venue for any
action brought to interpret oi• enforce, or arising out of or incident to, the terms of this
Maintenance Agreement shall be in Tarrant County, Texas or the United States District Court for
the Northein Distr•ict of Texas, Fort Worth Division.
SECTION 15
SUBLETTING AND ASSIGNING
15.01 Developer agr•ees that it will not subcontract or assign all or any part of its rights,
privileges or duties hereunder without the prior written consent of the City and any attempted
subcontract or assignment of same without such prior consent of the City shall be void except
that Developer may, without prior written consent, assign any or all of its rights, pi•ivileges or
duties hereunder to an afiiliate (defined as an entity under common control with Developer) or to
an authorized Public Improvement District whose boundaries include the Project Site ("Allowed
Assignment"). In the event of an Allowed Assignment, Developer will notify the City within
thirry (30) days of such assignment. If notice of an Allowed Assignment is not provided within
thirry (30) days to the City such assignment shall be void. In the event of an assignment
permitted above, Developer shall automatically be released from any further obligation or
liability under this Maintenance Agreement. Notwithstanding the foregoing, or anything in this
Maintenance Agreement to the conh•aiy, it is understood and agreed that Developer will contract
or subcontract various parts of its obligations hereunder to other to perform on behalf of
Developer, and such contracting or subcontracting is expressly permitted hereunder.
15.02 Subject to the limitations contained herein, the covenants, conditions and agreements
made and entered into by the parties hereunder are declar•ed to be for the benefit of and binding
on their respective successor•s, representatives and pernutted assigns, if any.
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SECTION 16
WAIVER, SECTION HEADINGS, AND SEVERABILITY
16.01 It is agreed that in the event any covenant, condition or provision herein contained is held
to be invalid by any court of competent jurisdiction, the invalidity of such covenant, condition or
provision shall in no way affect any other covenant, condition or provision herein contained,
provided however, that the invalidity of any such covenant, condition or provision does not
materially prejudice either Developei• or City in connection with the rights and obligations
contained in the valid covenants, conditions or provisions of this agreement.
16.02. The waiver by the City of any default or breach of a term, covenant or condition of this
Maintenance Agreement shall not be deemed to be a waiver of any other breach of that term,
covenant or• condition or any other term, covenant or condition of this Maintenance Agreement,
regardless of when the breach occur7�ed.
16.03 The headings in this Maintenance Agreement are inserted foi• reference only, and shall
not define or liinit the pr•ovisions hereof.
SECTION 17
SUCCESSORS AND ASSIGNS
This Maintenance Agreement shall be recoi•ded in the Real Property Records of the applicable
county and shall be a covenant running with the land binding upon all parties having any right,
title or interest in the Property or any part thereof, including their heirs, successors and assigns,
and shall inure to the benefit of the owneis of the Property and to the City.
SECTION 18
ENTIRE UNDERSTANDING
18.01 This written instiument including all Attachments, Schedules, and E�ibits attached
hereto constitutes the entu�e agreement by the parties hereto concerning this Maintenance
Agreement and the obligations of the parties and any prior or contemporaneous oral or written
agreement that purports to vaiy fi•om the terms hereof shall be void. This Maintenance
Agreement cannot be modified or amended without the written consent of all the parties hereto
and attached and made a pai-t of this Maintenance Agreement.
18.02 Neither this Maintenance Agreement nor any provision hereof may be modified except
by an instrument in writing, signed by the parties. This Maintenance Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns.
{SIGNATURE PAGE AND EXHIBITS TO FOLLOW}
Page 8 of 10
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IN WITNESS WHEREOF, the parties have executed this Maintenance Agreement in multiple
counteiparts.
CITY OF FORT WORTH
By: � ��--.
Feinando Costa
Assistant City Manager
UNIVERSITY OF NORTH TEXAS
HEALTH SCIENCE CENTER
By:
�
O. Kearbey
Associate Vice Chancellor
System Facilities
Date: � 24 �3
Appr•oved as to Foim and Legality
By: `C��-C�11c�,
Assistant City Attorney
ATTEc'T'
By:
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Date:
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Date: �'3' (3
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THE STATE OF TEXAS §
COUNTY OF TARRANT �
BEFORE ME, the undersigned authority, a Notaiy Public in and for the State of Texas,
on this day personally appeared Fernando Costa, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same
for the purposes and consideration therein expressed, as the act and deed of the City of Fort
Worth, and in the capacity therein stated. sL f� �?„�7 �. /"'
GIVEN LTNDER MY HAND AND SEAL OF OFFICE this � day of �tr�L013.
EVONIA DANIEIS
Notary Public. State of iexas
My Commission Expires `
July 10, 2017 -
THE STATE OF TEXAS �
COUNTY OF TARRANT §
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�lotaiy Public in and for the
State of Texas
BEFORE ME, the undersigned authority, a Notaty Public in and for the State of Texas,
on this day personally appeai•ed Raynard O. Kearbey, known to me to be the person whose name
is subscribed to the foregoing instiument, and acknowledged to me that he/she executed the same
for the purposes and consideration therein expressed, as the act and deed of the University of
North Texas Health Science Center, a Texas institution of higher education, and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this �� day of July 2013.
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`��Yary Public in and for the
State of Texas
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EXHIBIT A
UNT-HEALTH SCIENCE CENTER LIBRARY COURTYARD November 12 2012
TREE WELLS (8)
1. Rectangular tree wells along Montgomery Street will be planted with Stella
De Oro Daylily, Dwarf Yaupon, Dwarf Mexican Petunia, and Autumn Sage.
2. A Southern Live Oal< will' be planted in each tree well along Montgomery
Street. Each tree well will be irrigated with drip irrigation.
3. Each tree will be irrigated with tree bubblers at the base.
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1. The drop off island located along Montgomery Street will be planted with
Carpet Rose at each end and Purple .lapanese Honeysuckle in the center
of the island.
2. The island will be planted with Possumhaw Holly Trees in the center.
3. The drop off island will be irrigated with drip irrigation.
4. Each tree will have a tree bubbler at the base.
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City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 9/17/2013
DATE:
LOG NAME:
SUB.TECT:
Tuesday, September 17, 2013 REFERENCE NO.: C-26445
20ROWE6919UNTHSC—LSMA
Authorize Execution of a Maintenance and Landscaping Services Agreement with the University of North
Texas Health Science Center on Property Located at 3500 Camp Bowie Boulevard for the Library Courtyard
Project on Montgomery Street at No Expense to the City (COUNCIL DISTRICT 7)
RECOMMENDATION:
It is recommended that the City Council authorize the execution of a Maintenance and Landscaping Services
Agreement with the University of North Texas Health Science Center for property located at 3500 Camp
Bowie Boulevard for the Library Courtyard Project on Montgomery Street at no expense to the City.
DISCUSSION:
The University of North Texas Health Science Center owns property located at 3500 Camp Bowie Boulevard
upon which a portion will be used to construct and maintain aesthetic improvements to the library's courtyard
and on portions of Montgomery Street. The aesthetic improvements being constructed include irrigation
systems, tree wells, LED lighting, brick pavers, and banners. The terms of the maintenance Agreement
ensure proper maintenance of the landscape improvements by the University of North Texas Health Science
Center and the City of Fort Worth.
The landowner and successors are required to maintain the facility. However, if the landowner fails to
properly maintain the improvements, the Agreement gives the City the right to take all steps necessary to
ensure the facility is operating according to Ciry standards and to correct any deficiencies at no cost to the
City. This requirement and right run with the land.
The facilities are located in COUNCIL DISTRICT 7, Mapsco 75D.
FISCAL INFORMATION:
The Financial Management Services Director certifies that this action will have no material effect on City
funds.
FUND CENTERS:
TO Fund/AccountlCenters FROM Fund/Account/Centers
CERTIFICATIONS:
Submitted for Citv Manager's Office b�
Originating Department Head:
Additional Information Contact:
Fernando Costa (6122)
Douglas Wiersig (7801)
Lexington Wright (6645)
ATTACHMENTS
1. 6919-20ROWE6919UNTHS C-LS MA.,�df