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HomeMy WebLinkAbout1996-215J \WPDOCS\ORD\PAVILLI ORD ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER OF THE CITY OF DENTON, TEXAS TO EXECUTE A MULTIPLE USE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND DENTON HERITAGE CHRISTIAN ACADEMY, INC. DBA DENTON HUMANITARIAN ASSOCIATION TO PERMIT THE CONSTRUCTION, MAINTENANCE AND OPERATION OF A DAY LABOR PAVILION ON THE HIGHWAY RIGHT-OF-WAY OF U.S. 377 IN THE CITY OF DENTON, TEXAS, AT 221 WEST COLLINS STREET; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton recognizes the need to provide a safe, sanitary, and centralized Day Labor Pavilion for its residents to assist them in their search for day labor; and WHEREAS, the City Council of the City of Denton believes that the establishment of a Day Labor Pavilion in the City of Denton is an important service benefitting the residents of the City and generally promotes the public safety; and WHEREAS, the City of Denton on this date has entered into a Multiple Use Agreement with the Texas Department of Transportation which permits the City to construct, maintain and operate a day labor pavilion, on the highway right-of-way of U.S. 377 in the City of Denton, at 221 West Collins Street. The Multiple Use Agreement between the City of Denton, Texas and Texas Department of Transpor- tation provides that the City may subsequently enter into a separate multiple use agreement with a third party, which third party would construct, maintain and operate the day labor pavilion, and WHEREAS, the City has determined that Denton Heritage Christian Academy, Inc., a Texas Non -Profit Corporation, is committed to and has great interest in establishing a day labor pavilion in the City of Denton, and is willing to undertake the construction, mainte- nance and operation of the day labor pavilion in the City of Denton, all at no cost to the City. NOW, THEREFORE: THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SSECTION I. That the City Manager is authorized to execute a Multiple Use Agreement between the City of Denton, Texas and the Denton Heritage Christian Academy, Inc., a Texas Non -Profit Corporation doing business as Denton Humanitarian Association, to permit the construction, maintenance and operation of a day labor pavilion on the Highway Right -Of -Way of U.S 377 in the City of Denton, Texas at 221 West Collins Street, under the terms and conditions contained in said agreement which is attached hereto and made a part hereof. SECTION II. That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this thejr� day of.� 1996. JACK LER, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY DLI\1r MULTIPLE USE AGREEMENT STATE OF TEXAS S COUNTY OF DENTON THIS AGREEMENT by and between the City of Denton, Texas, hereinafter referred to as the "CITY" and Denton Heritage Christian Academy, Inc. doing business as Denton Humanitarian Association, a Texas non-profit Corporation hereinafter referred to as the "Denton Humanitarian Association" is to become effective when last executed. WITNESSETH WHEREAS, Denton Humanitarian Association has requested the CITY to permit the construction, maintenance and operation of a Day Labor Pavilion on the highway right-of-way of U.S. 377 in the City of Denton, Denton County, Texas, at 221 W Collins street as shown on the site plan in Exhibit "A" Construction plans for areas to be developed as a part of this agreement will be submitted by Denton Humanitarian Association and the CITY to the State of Texas Department of Transportation (hereinafter referred to as "TXDOT"), for approval along with metes and bounds description covering the specific area development. When approved by TXDOT, these metes and bounds descriptions (Exhibit "B") and construction plans (Exhibit "C"), made a part hereof and incorporated herein by reference, shall be made a part of this agreement; and WHEREAS, the CITY has indicated its willingness to approve the establishment of such facilities and other uses conditioned that the Denton Humanitarian Association will enter into agreements with the CITY for the purpose of determining the respective responsibil- ities of the Denton Humanitarian Association and the CITY with reference thereto, and conditioned that such uses are in the public interest and will not damage the highway facilities, impair safety, impede maintenance or in any way restrict the operation of the highway facility, all as determined from engineering and traffic investigations conducted by TXDOT; and WHEREAS, the CITY has entered into a Multiple Use Agreement with TXDOT _(1� reinafter fe red to as the "TXDOT Agreement"), dated the xx day of 1996, in which TXDOT and the CITY have agreed that a Oaf Labor Pavilion may be constructed, maintained and operated by the CITY or by a third party who contracts with the CITY to do so. WHEREAS, Denton Humanitarian Association, is desirous of entering into a multiple use agreement with the CITY which permits Denton Humanitarian Association, to construct, maintain and operate a Day Labor Pavilion at the location described hereinabove, at no cost to the CITY, and WHEREAS, the CITY considers that its entry into this Multiple Use Agreement with Denton Humanitarian Association, is essential to support the activities of Denton Humanitarian Association to generally promote economic development within the CITY of Denton, and that these activities constitute a part of the CITY's intention to promote and stimulate business and commercial activity which constitute a public purpose; NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties hereto to be by them respectively kept and performed as hereinafter set forth, the CITY and Denton Humanitarian Association do hereby AGREE as follows: 1. TERM OF AGREEMENT The term of this agreement shall be for a period of ten (10) years, commencing on October 1, 1996 and ending September 30, 2006 Thereafter, this agreement may be renewed for successive additional one (1) year terms commencing on October 1, 2006, and on October 1 for each successive year thereafter, provided that the CITY and Denton Humanitarian Association agree in writing on or before August 1 of each successive year in which the CITY and Denton Humanitarian Association intend to renew this agreement, provided however, notwithstanding the provisions of this paragraph respect- ing the term of this agreement or any other provision of this agreement, either party may terminate this agreement, upon sixty (60) days advance written notice to the other 2. PAYMENT TO THE CITY Denton Humanitarian Association shall pay the sum of One ($1.00) Dollar to the City of Denton on the date this agreement is signed by both parties as consideration for the initial term of this agreement. Denton Humanitarian Association further agrees to pay as further consideration, the additional sum of One ($1.00) Dollar to the City of Denton on the date any additional one-year renewal agreement is signed by both parties. 3. CONSTRUCTION PLANS The parties hereto will prepare or provide for the construction plans for the facility, and Denton Humanitarian Association will provide for the construction work as required by said plans at no cost to the CITY and TXDOT. Said plans shall include the design of the access control, necessary horizontal and vertical clearances from highway structures, adequate landscape treatment, and general layout; and they shall also delineate and define the construction Page 2 responsibilities of both parties hereto, and when approved shall be attached to the agreement and made a part thereof in all respects. Any future revisions or additions of permanent improvements shall be made after prior written approval of the CITY and TXDOT. 4. INSPECTION Ingress and egress shall be allowed at all times to such facility for Federal Highway Administration personnel and State Forces and equipment when highway maintenance operations are necessary, and for inspection purposes; and upon request, all parking or other activities for periods required for such opera- tions will be prohibited. 5. PARKING REGULATIONS Parking regulations shall be established limiting parking to single unit motor vehicles of size and capacity no greater than prescribed for 1-1/2 ton trucks, such vehicles to conform in size and use to governing laws. Parking shall be permitted only in marked spaces. 6. PROHIBITION/SIGNS Regulations shall be established and prohibiting the parking of vehicles transporting flammable or explosive loads and prohibiting use of the area in any manner for peddling, advertising or other purposes not in keeping with the objective of a public facility. The erection of signs other than those required for proper use of the area will be prohibited. All signs shall be approved by the CITY and TXDOT. 7. RESPONSIBILITIES Maintenance and operation of the facility shall be entirely the responsibility of Denton Humanitarian Association. Such responsi- bility shall not be transferred, assigned or conveyed to any other party without the written approval of the CITY Further, such responsibility shall include picking up trash, mowing, surface area patching, tree and shrub care, flower -bed care, irrigation system maintenance, and otherwise keeping the facility in a clean and sanitary condition, and surveillance by police patrol to eliminate the possible creation of a nuisance or hazard to the public. Hazardous or unreasonably objectionable smoke, fumes, vapor or odors shall not be permitted to rise above the grade line of the highway, nor shall the facility subject the highway to hazardous or unreasonably objectionable dripping, droppings or discharge of any kind, including rain or snow. The area to be maintained is defined as all surfaces not utilized by traffic lanes and adjacent shoulder within the highway right-of-way, including the surfaced area under Page 3 the structures. S. FEES Any fees levied by Denton Humanitarian Association for use of the facilities in the area shall be nominal and no more than are sufficient to defray the cost of construction, maintenance and operation thereof, and shall be subject to written approval of the CITY and TXDOT. TERMINATION UPON NOTICE This provision is expressly made subject to the rights herein granted to both parties to terminate this agreement upon notice, and upon the exercise of any such right by either party, all obligations herein to make improvements to said facility shall immediately cease and terminate. 10. MODIFICATION/TERMINATION OF AGREEMENT Denton Humanitarian Association understands and agrees that if in the sole judgment of TXDOT it is found at any future time that traffic conditions have so changed that the existence of use of the facility is impeding maintenance, damaging the highway facility, impairing safety or that the facility is not being properly operated, that it constitutes a nuisance, is abandoned, or if for any other reason it is the CITY's or TXDOT's judgment that such facility is not in the public interest, this agreement under which the facility was construed may be: (1) modified if corrective measures acceptable to Denton Humanitarian Association, the CITY, and TXDOT can be applied to eliminate the objectionable features of the facility; or (2) terminated, and the use of the area as proposed herein discontinued. 11. PROHIBITION OF STORAGE OF FLAMMABLE MATERIALS All structures located or constructed within the area covered by the agreement shall be fire resistant. The storage of flamma- ble, explosive or hazardous material as is prohibited. Operations deemed to be a potential fire hazard shall be subject to regulation by the CITY and TXDOT. 12. RESTORATION OF AREA Upon written notification by either party hereto that such facility should be discontinued, each party shall, within sixty (60) days, clear the area of all facilities that were its construc- tion responsibility under this agreement, as necessary to restore the area to a condition satisfactory to the CITY and TXDOT. Page 4 13. INDEMNIFICATION Denton Humanitarian Association, shall, insofar as it is legally permitted and subject to such limitations, indemnify the CITY and TXDOT against any and all damages and claims for damages, including those resulting from injury to or death of persons or for loss of or damage to property,, arising out of, incident to or in any manner connected with its construction, maintenance or, operating of the facility, which indemnification shall extend to and include any and all court costs, attorney's fees and expenses related to or connected with any claims or suits for damages and shall, if requested in writing by the CITY and/or TXDOT to do so, assist the CITY and/or TXDOT with, or relieve the CITY and/or TXDOT from defending any suit brought against them. The CITY does not intend to waive, relinquish, limit or condition its right to avoid any such liability by claiming its governmental immunity. When notified by the CITY to do so, Denton Humanitarian Association shall promptly pay TXDOT for the full cost of repairing any damages to the highway facility which may result from its construction, maintenance or operating of the facility, or its duly authorized agents or employees, and shall promptly reimburse TXDOT for costs of construction and/or repair work made necessary by reasons of such damages. Nothing in this agreement shall be construed as creating any liability in favor of any third party or parties against either of the parties hereto nor shall it ever be construed as relieving any third party or parties from any liabilities of such third party or parties to the parties hereto, but the other hereto shall become fully subrogated to the State and shall be entitled to maintain an action over and against third party or parties legally liable for having cause it to pay or disburse any sum of money hereunder. 14. INSURANCE Denton Humanitarian Association 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 construction of the facility occupying such airspace or thereafter, and to save the CITY and TXDOT harmless from damages, to the extent of said insurance coverage and insofar as it can legally do so. Prior to beginning work on the State's right-of-way Denton Humanitarian Association's construction contractor shall submit to the CITY and TXDOT a complete insurance form (TXDOT Form No. 1560) and shall maintain the required coverage during the construction of the facility. During the term of this agreement, Denton Humanitarian Association shall maintain at all times, the following insurance Page 5 coverage with an insurance company licensed to do business in the State of Texas by the State Insurance Commission, or any successor agency that has a rating with A.M. Best Rate Carriers of at least "A-" or above, to wit: Comprehensive General Liability Insurance with a Combined Single Limit of not less than $1,000,000. Denton Humanitarian Association shall furnish the CITY insurance certificates or policies, at the CITY's request to evidence such coverage. The insurance policies shall name the CITY as an additional insured on all such policies and shall contain a provision that such insurance shall not be cancelled or modified without ten (10) days prior written notice to the CITY and Denton Humanitarian Association. In such event, Denton Humanitarian Association shall, prior to the effective date of the change or cancellation, provide CITY with substitute policies furnishing the same coverage. 15. USE OF RIGHT-OF-WAY it is understood by Denton Humanitarian Association that by execution of this agreement, nothing impairs or relinquishes TXDOT's right to use such land for right-of-way purposes when it is required for the construction or reconstruction of the traffic facility for which it was acquired, nor shall use of the land under such agreement ever be construed as abandonment by TXDOT of such land acquired for highway purposes Denton Humanitarian Associa- tion understands that TXDOT, in the TXDOT agreement or otherwise, has not purported to grant any interest in land described herein to the CITY or to Denton Humanitarian Association but has merely consented to such use to the extent TXDOT's authority and title permits. 16. ADDITIONAL CONSENT REQUIRED TXDOT has asserted to the CITY in the TXDOT agreement, only that it has sufficient title for highway purposes. The CITY and Denton Humanitarian Association shall be responsible for obtaining such additional consent or agreement as may be necessary due to this agreement. This includes, but is not limited to, public utilities. 17. FHWA ADDITIONAL REQUIREMENTS If the facility is located on the Federal -Aid Highway System, "ATTACHMENT E", which states additional requirements as set forth in the Federal Highway Administration's Federal -Aid Highway Program Manual, shall be attached to and become a part of this agreement. Page 6 18. CIVIL RIGHTS ASSURANCES Denton Humanitarian Association, for itself, its successors in interest and its assigns, as part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that: (1) no persons, on the ground of race, color or national origin shall be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination in the use of said facility; (2) that in the construction of any improvements on, over or under such land and the furnishing of services thereon, no person on the ground of race, color or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; (3) that Denton Humani- tarian Association shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally - Assisted programs of the Department of Transportation - Effectua- tion of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. That if in the event of any breach of the above non-discrimina- tion covenants, the CITY shall have the right to terminate the agreement and re-enter and repossess said land and the facilities thereon, and hold the same as if said agreement had never been made or issued. List of Attached Exhibits: Exhibit A General Layout Exhibit B Metes and Bounds Description of project Ares as developed Exhibit C Construction Plans (incorporated herein) Exhibit D Certification of insurance (TXDOT Form 1560 from contractors as Projects are let) Exhibit E Attachment A (FHWA Additional Requirements) IN WITNESS HEREOF, the City of Denton, Texas has caused this Multiple Use Agreement to be executed by its duly authorized City Manager, and Denton Humanitarian Association has executed this agreement by and through its duly authorized, undersigned officer on this the day of , 1996. CITY OF DENTON, TEXAS ("CITY") BY: U ED BE AVIDES, CITY MANAGER Page 7 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY : l�s X 1/ A ATTEST: BY: !! J \WPDOCB MAYLAB AGR DENTON HERITAGE CHRISTIAN ACAD , INC. ("DN HWNITARIAN ASSO BY: Name: Title. PRESIDENT Page 8