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HomeMy WebLinkAbout2000-136P\SHAEEU\UEP LW EammmYlOMNcmat9ATx0ol Mull Um dx ,A U AN ORDINANCE APPROVING A MULTIPLE USE AGREEMENT BETWEEN THE CITY OF DENTON AND THE STATE OF TEXAS BY THE TEXAS DEPARTMENT OF TRANSPORTION FOR A RAIN GAUGE STATION IN THE EASTERN RIGHT-OF-WAY OF F M 156 AT HICKORY CREEK IN THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO SIGN THE AGREEMENT, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS SECTION 1 The City Manager, or his designee is hereby authorized to execute an agreement between the City and the State of Texas by the Texas Department of Transportion for a ram gauge station in the eastern right-of-way of F M 156 at Hickory Creek in the City of Denton, Texas, in substantially the form of the agreement attached to and made a part of this ordinance for all purposes SECTION 2 The City Manager is authorized to make the expenditures as provided in the attached agreement SECTION 3 This ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the day of , 2000 ,rr' t � O. ATTEST; JENNIFER WALTERS, CITY SECRETARY BY AP OVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY MULTIPLE USE AGREEMENT STATE OF TEXAS COUNTY OF TRAVIS THIS AGREEMENT made by the State of Texas by and between the Texas Department of Transportation, hereinafter referred to as "State", party of the first part, and the City of Denton, hereinafter called the "City", party of the second part, is to become effective when executed by both parties WITNESSETH WHEREAS, on the #q4-- dav of k 2000, the governing body for the City, entered into Resolution Noa00D -: 3/„ hereinafter identified by reference, authorizing the City's participation in this agreement with the State, and WHEREAS, the City has requested the State to permit construction, maintenance and operation of a ram gauge station in the existing eastern right of way of F M 156 at Hickory Creek shown graphically by the preliminary conceptual site plan in Exhibit "A" and being more particularly described by metes and bounds of Exhibit "B", which are attached and made a part hereof, and WHEREAS, the State has indicated its willingness to approve the establishment of such facilities and other uses conditioned that the City will enter into agreements with the State for the purpose of deternuning the respective responsibilities of the City and the State 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 the State 1 I AGREEMENT 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, it is agreed as follows 1. CONSTRUCTION PLANS The parties hereto will prepare or provide for the construction plans for the facility, and will provide for the construction work as required by said plans at no cost to the State 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 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 State 2. INSPECTION Ingress and egress shall be allowed at all times to such facility for Federal Highway Adrrunistration 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 operations will be prohibited 3 PROHIBITIONS/SIGNS Regulations shall be established 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 required for proper use of the area will be prolubited All signs shall be approved by the State prior to the actual erection 4 RESPONSIBILITIES Maintenance and operation of the facility shall be entirely the responsibility of the City Such responsibility shall not be transferred, assigned or conveyed to a third party without the advanced written approval of the State Further, such responsibility shall include picking up trash, mowing 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 2 5 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 terrrunate 6 MODIFICATION/TERMINATION OF AGREEMENT If in the sole judgment of the State it is found at any future time that traffic conditions have so changed that the existence or 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 State's judgments that such a facility is not in the public interest, this agreement under which the facility was constructed may be. (1) modified if corrective measures acceptable to both parties can be applied to eliminate the objectionable features of the facility or (2) terminated and the use of the area as proposed herein discontinued 7 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 flammable, explosive, or hazardous materials is prohibited Operations deemed to be a potential fire hazard shall be subject to regulation by the State 8 RESTORATION OF AREA The City shall provide written notification to the State that such facility will be discontinued for the purpose defined herein The City shall, within thirty (30) days from the date of said notification, clear the area of all facilities that were its construction responsibility under this agreement and restore the area to a condition satisfactory to the State 9 PREVIOUS AGREEMENT It is understood that this agreement in no way modifies or supersedes the terms and provisions of any existing agreements between the parties hereto 10 INDEMNIFICATION The City shall, insofar as it is legally permitted and subject to such limitations, indemnify the State 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 any claims or suits for damages resulting from the facility and shall, if requested in writing by the State to do so, assist the State with or relieve the State from defending any suit brought against it Neither party hereto intends to waive, 7 relinquish, limit or condition its right to avoid any such liability by claiming its governmental immunity When notified by the State to do so, the other party hereto shall within thirty (30) days from receipt of the State's written notification pay the State for the full cost of repairing any damages to the highway facility which may result from its construction, maintenance or operation of the facility, or its duly authorized agents or employees, and shall promptly reimburse the State for costs of construction and/or repair work made necessary by reason of such damages Notlung in this agreement shall be construed as creating any liability in favor of any third party against the State and the City Additionally, this agreement shall not ever be construed as relieving any third party from any liability against the State and the City, but the City shall become fully subrogated to the State and shall be entitled to maintain any action over and against the third party which may be liable for having caused the City to pay or disburse any sum of money hereunder 11 INSURANCE The City shall provide necessary safeguards to protect the public on State -maintained highways or right of way including adequate insurance for payment of any damages which might result of the City's use of the facility and to hold the State harmless from damages by providing a Certificate of Insurance, TxDOT form 1560, naming the State as as Additional Insured Said Certificate of Insurance is attached hereto and made a part hereof for all purposes Or in the alternative if the City is self -insured at the execution of this Agreement or prior thereto, the City shall provide State documentation of self-insurance 12 USE OF RIGHT-OF-WAY It is to be understood that the State by execution of this agreement does not impair or relinquish the States right to use such land for right of way purposes when it is required for the purposes for which it was acquired, nor shall use of the land under such agreement ever be construed as abandonment by the State of such land acquired for lughway purposes, and the State does not purport to grant any interest in the land described herein but merely consents to such use to the extent its authority and title permits 13 ADDITIONAL CONSENT REQUIRED The State asserts only that it does not necessarily have sufficient title for highway purposes The City 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 14 FHWA ADDITIONAL REQUIREMENTS The facility is not located on the Federal -Aid Highway System 4 9 15. CIVIL RIGHTS ASSURANCES The City, for itself, its personal representatives, successors and interests and 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, sex, age, national origin, religion, or disabling condition, 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 furrustung of services thereon, no person on the ground of race, color, sex, age, national origin, religion, or disabling condition, shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that the City shall use the premises in compliance with all other requirement's 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 -Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended That of in the event of any breach of the above non-discrimination covenants, the State shall have the right to terminate the agreement and reenter and repossess said land and the facihties thereon, and hold the same as of said agreement had never been made or issued 16. AMENDMENTS Any changes in the time frame, character or responsibilities of the parties hereto shall be enacted by a written amendment executed by both parties hereto 17 LEGAL CONSTRUCTION In case one or more of the provisions contained in this agreement shall for any reason be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any provision hereof and this agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in this agreement 18 REMOVAI//ADJUSTMENT OF FACILITIES If the right of way subject to the agreement is required for future State highway purposes, then the City shall remove or make adjustments to their facilities, as determined by the State, at no expense to the State I r r , , rwn* b; yea.rod4CMkbiAh'er r r Vrv+^M i40.e — - nr,4 MY , rWrn.r.a e, 11- c u v 19. NOTICES All notices required under this agreement shall be mailed or hand delivered to the following respective addresses STATE Texas Department of Transportation Dallas District P O Box 133067 Mesquite, Texas 75313-3067 List of Attached Exhibits Exhibit Al- Location Map Exhibit A- Conceptual Site Plan Exhibit B- Metes and Bounds Description Exhibit C- Documentation of Self -Insurance CITY City of Denton 221 N Elm St Denton, Texas 76201 In Witness Whereof, the parties have executed duplicate original counterparts to this agreement to become effective on the date last executed CITY OF DENTON By Michael W Jez City Manager A T By eniufer Walters City Secretary STATE OF TEXAS TEXAS DEPARTMENT OF TRANSPORTATION 6 Executed for the Executive Director and approved by the Texas Transportation Commission for the purpose and effect of activating and/or carrying out the orders, and established policies, or work programs heretofore approved and authorized by the Texas ansportahon Commisssion By Y\-M�. y R elson, P E Dallas Distnqt Engineer Date a w N 3389.1 /0 DENTON EXHIBIT 'A' CONCEPTUAL SITE PLAN RDW MON /�� 144 Q 00' MDN Gary D, Neilson Instr, No, 95-R0026993 R,P R D,C,T, N31'17'00'E 1000' S18.58'00'E 80 00' 10' x 80' RAIN & STREAM GAUGE M❑NIT❑RING STATI❑N AREA x n� O O� m x H N rl H Z Z C) ri A r x SCALE: 1' = 100' City of Denton 99-00003-DRAN Denise Engmee'wing & Transportation Department T%DOT 0 Right -of -Way Dims -Lon l /6/99 EXHIBIT "B" County Denton Page 1 of 1 Highway F M 156 December 16,1999 Protect Limits F M 156 at Hickory Creek BEING 800 square feet of land, more or less, situated in the William Stoneham Survey, Abstract Number 1145, Denton County, Texas and being part of a tract of land conveyed to the State of Texas, acting by and through the State Highway Commission by deed as recorded in Volume 32Z Page 124, Deed Records, Denton County, Texas, said 800 square feet of land being more particularly described by metes and bounds as follows BEGINNING at a point at the intersection of the eastern right of way line of Farm -to - Market 156 and the centerline of Hickory Creek, also being the southwest corner of a tract of land conveyed to Gary D and Martha S Neilson by deed as recorded in Instrument Number 95-R0026993 of the Real Property Records of Denton County, Texas, THENCE North 31 degrees 17 minutes 00 seconds West along the centerlme of said Hickory Creek for a distance of 10 00 feet to a point for corner, THENCE North 18 degrees 58 minutes 00 seconds East, parallel to the said eastern right of way line F M 156 for a distance of 80 00 feet to a point for corner, THENCE South 31 degrees 17 minutes 00 seconds East for a distance of 10 00 feet to a point in the eastern right of way line of F M 156, THENCE South 18 degrees 58 minutes 00 seconds West along the eastern right of way line of F M 156 for a distance of 80 00 feet to the POINT OF BEGINNING and containing an area of 800 square feet of land, more or less Exhibit C CITY OF DENTON TEXAS Risk Management * 215 E McKinney * Denton, Texas 76201 Telephone (940) 349-8317 ' DFW Metro (972) 434-2529 - FAX (940) 349-7789 December 15, 1999 Mr Jay R Nelson, PE Dallas District Engineer P O Box 133067 Mesquite, Texas 75313-3067 The City of Denton is a self -insured public entity as allowed by the State of Texas for General Liability, Auto/Mobile Equipment Liability, and Workers' Compensation General Liability limits are established by the Texas Tort Claims Act as listed below Property damage $100,000 Bodily injury $250,000 each person $500,000 each occurrence Claims for which the City is liable will be paid from the Risk Retention Fund established for that purpose Sincerely, MB G- tM"— Risk Manager