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2000-136NO 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 !56 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 ~s hereby authorized to execute an agreement between the City and the State of Texas by the Texas Department of Transport~on for a rain gauge station m the eastern right-of-way of F M 156 at Hickory Creek an the Clty of Denton, Texas, m substantmlly the form of the agreement attached to and made a part of this ordinance for all purposes SECTION 2 The City Manager ~s authorized to make the expenditures as prowded ~n the attached agreement SECTION 3 This ordinance shall become effective ~mmedlately upon 1ts passage and approval PASSED AND APPROVED this the //~'~-~// dayof f'~.~ ,2000 ATTESTt JENNIFER WALTERS, CITY SECRETARY API~OVED AS TO LEGAL FORM HERBE~UTY, CITY ATTORNEY STATE OF TEXAS COUNTY OF TRAVIS MULTIPLE USE AGREEMENT 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, ~s to become effective when executed by both part~es WITNESSETH WHEREAS, on the da~f ~ .2000, the govermng body for the City, entered mt0 Resolutton~o~No~a~~ hereinafter ~dentffied by reference, authorizing the Oty's parttopaO, onm flus agreement with the State, and WHEREAS, the Oty has requested the State to perrmt construction, mamtenance and operation of a ram gauge statmn ~n the exastmg eastern right of way of F M 156 at I-hckory Creek shown graplucally by the prehrmnary conceptual site plan ~n Exhibit 'A' and being more particularly described by metes and bounds of Extubit "B', wtuch are attached and made a part hereof, and WHEREAS, the State has md~cated its wfllmgness to--approve the estabhshment of such faohtaes and other uses condit~oned that the City will enter into agreements w~th the State for the purpose of deterrmnmg the respecO_ve responslblhtaes of the City and the State w~th reference thereto, and conditioned that such uses are in the public interest and wdl not damage the tughway faoht~es, lmpmr safety, impede maintenance or m any way restrict the operataon of the tughway faohty, all as determined from engineering and traffic mvest~gatmns conducted by the State I AGREEMENT Now, THEREFORE, in consideration of the prermses 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 smd plans at no cost to the State Said plans shall include the design of the access control, necessary horizontal and vertical clearances from tughway 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 faclhty for Federal I-hghway Advmmstration personnel and State Forces and equipment when l'ughway maintenance operations are necessary, and for inspection purposes, and upon request, all parkang or other activities for periods reqmred for such operations will be prol'ublted 3 PROHIBITIONS/SIGNS Regulations shall be established protub~tmg the parking of vehicles transporting flammable or explosive loads and protublting use of the area in any manner for peddling, advertising or other purposes not in keeping with the objective of a pubhc faclhty The erection of signs other than required for proper use of the area w~ll be protublted All signs shall be approved by the StatE prior to the actual erection 4 RESPONSIBILITIES Maintenance and operation of the facdity shall be entirely the responsibility of the City Such responsibility shall not be transferred, assigned or conveyed to a ffurd party without the advanced written approval of the State Further, such responsiblhty shall ~nclude pickang up trash, mowing and otherwise keeping the facility in a clean and samtary condition, and surveillance by police patrol to ehrmnate the possible creation of a nuisance or hazard to the public Hazardous or unreasonably objectionable smoke, fumes, vapor, or odors shall not be perrmtted to rise above the grade line of the l'ughway, nor shall the facility subject the tughway to hazardous or unreasonably objectionable dripping, droppings or discharge of any k~nd, including rain or snow 5 TERMINATION UPON NOTICE This provision is expressly made subject to the rights herein granted to both part~es to terrmnate ti'us agreement upon not~ce, and upon the exercise of any such right by either party, all obhgahons herem to make improvements to said faclhty shall immediately cease and terrmnate 6 MODIFICATION/TERMINATION OF AGREEMENT If in the sole judgment of the State it is found at any future t~me that traffic conditions have so changed that the eyastence or use of the faclhty is impeding mmntenance, damaging the tughway faohty, lmpmring 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 faclhty is not in the pubhc interest, ti'us agreement under wl'uch the facihty was constructed may be. (1) modified if corrective measures acceptable to both parhes can be applied to ehrmnate the objectionable features of the facility or (2) terrrunated and the use of the area as proposed herein disconhnued 7 PROHIBITION OF STORAGE OF FLAMMABLE MATERIALS All structures located or constructed w~thm the area covered by the agreement shall be fire resistant The storage of flammable, explosive, or hazardous materials is prolubited 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 discont~nued for the purpose defined herein The City shall wlffun tl'urty (30) days from the date of smd not~ficahon, clear the area of all faclht~es that were its construchon responsibility under this agreement and restore the area to a condition satisfactory to the State 9 PREVIOUS AGREEMENT It is understood that ti-us agreement in no way modifies or supersedes the terms and provisions of any existing agreements between the part~es hereto 10 INDEMNIFICATION The City shall, insofar as it is legally pernutted and subject to such llrrutatmns, indemnify the State against any and all damages and clmms 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 reheve the State from defending any suit brought against it Neither party hereto intends to waive, relinquish, lirmt or condition its right to avoid any such habihty by daimlng its governmental lrflI~urllty When notified by the State to do so, the other party hereto shall w~thln thtrty (30) days from receipt of the State's written notification pay the State for the full cost of repamng any damages to the highway facihty which may result from its construction, maintenance or operation of the faclhty, 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 Nothing in this agreement shall be construed as creating any hablllty in favor of any third party against the State and the City Additionally, ti-us agreement shall not ever be construed as rehevlng 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 actaon over and against the third party which may be hable 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-mamtalned highways or right of way including adequate ~nsurance for payment of any damages which rmght result of the Cxty's use of the faclhty and to hold the State harmless from damages by providmg a Certificate of Insurance, TxDOT form 1560, narmng the State as as Additional Insured Smd 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 execuhon of flus Agreement or prior thereto, the City shall prowde State documentahon 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 State's right to use such land for right of way purposes when it as reqmred 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 acquuted for highway 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 ~ts authority and t~tle perrmts 13 ADDITIONAL CONSENT REQUIRED The State asserts only that it does not necessarily have sufficient t~tle for highway purposes The City shall be responsible for obtmrung such additional consent or agreement as may be necessary due to this agreement This includes, but is not hn'uted to, pubhc utilities 14 FHWA ADDITIONAL REQUIREMENTS The facility is not located on the Federal-A~d Highway System 15. CIVIL RIGHTS ASSURANCES The City, for itself, its personal representatives, successors and interests and assigns, as part of the conslderatmn hereof, does hereby covenant and agree as a covenant runmng w~th the land that (1) no persons, on the ground of race, color, sex, age, national origin, rehg~on, or disabling condition, shall be excluded from part~cipat~on m, be demed the benefits of, or be otherwise subjected to discnrmnatmn In the use of said faclhty, (2) that in the construction of any improvements on, over or under such land and the furmstung of serwces thereon, no person on the ground of race, color, sex, age, national origin, rehg~on, or dlsabhng condihon, shall be excluded from pari~clpatmn in, derued the benefits of, or otherwise be subjected to dlscrm'unat~on; (3) that the City shall use the prermses 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-Assmted programs of the Department of Transportahon-Effectuatmn of Title VI of the Civil R~ghts Act of 1964, and as smd Regulahons may be amended That if m the event of any breach of the above non-dlscrlrmnat~on covenants, the State shall have the right to terminate the agreement and reenter and repossess said land and the faclht~es thereon, and hold the same as if said agreement had never been made or issued 16. AMENDMENTS Any changes in the t~me frame, character or responslbdit~es of the parhes hereto shall be enacted by a written amendment executed by both part~es hereto 17 LEGAL CONSTRUCTION In case one or more of the provisions contained in th~s agreement shall for any reason be held invalid, illegal, or unenforceable in any respect, such lnvahdlty, illegality or unenforceabfllty shall not affect any provision hereof and ti'us agreement shall be construed as ff such invalid, illegal, or unenforceable provision had never been contained in ti'us agreement 18 REMOVAL/ADJUSTMENT OF FACILITIES If the r~ght of way subject to the agreement is reqmred for future State tughway purposes, then the City shall remove or make adjustments to their facilities, as deterrmned by the State, at no expense to the State 19. NOTICES All notices required under flus agreement shall be mmled or hand dehvered to the following respective addresses STATE Texas Department of Transportataon Dallas District P O Box 133067 Mesqrute, Texas 75313-3067 CITY Caty of Denton 221 N Elm St Denton, Texas 76201 List of Attached Extublts Extubit A1- Exlublt A- Extublt B- Extubit C- Location Map Conceptual Site Plan Metes and Bounds Descriphon Documentatton of Self-Insurance In Witness Whereof, the parttes have executed duphcate original counterparts to flus agreement to become effectave on the date last executed CITY OF DENTON Michael W Jez City Manager City cretary STATE OF TEXAS TEXAS DEPARTMENT OF TRANSPORTATION Executed for the Execuhve D~rector and approved by the Texas Transportation Comrmsslon for the purpose and effect of achvat~ng and/or carrying out the orders, and estabhshed policies, or work programs heretofore approved and authorized by the Texas ~r~nsportat~on Cormmssslon ~y R I~elson, P E Dallas Distnqt Engineer 816-2 EXHIBIT A1 LOCATION MAP ---- 2 $ PROSF 036 TARRANT CO 81-9 3559-1 076 /0 ~547-1 0 2250'~ 43 DENTON EXHIBIT 'A' CONCEPTUAL gITE PLAN Gamy ]], Nei~son Instr, No, 95-R0086993 R,P R ]],C,T, 7'O0'E 10 00' 'O0'E 80 00' 10' x 80' RAIN & STREAM GAUGE MONITORING STATION AREA Z ~q ~q SCALE: City of Denton Rigkt-of - May D~ws~on = 100' 99-OOO03-DR~N Tx~)nT EXHIBIT 'B' County Denton Highway F M 156 Project Lirmts F M 156 at I-hckory Creek Page 1 of 1 December 16, 1999 BEING 800 square feet of land, more or less, situated in the W~lham 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 Comrmsslon by deed as recorded in Volume 322, 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 hne of Farm-to- Market 156 and the centerlme of t-hckory Creek, also being the southwest corner of a tract of land conveyed to Gary D and Martha S Nellson by deed as recorded in Instrument Number 95-R0026993 of the Real Property Records of Denton County, Texas, THENCE North 31 degrees 17 rmnutes 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 ~sk Management * 215 E M¢~nne¥ * Denton, Texas 76201 Telephone (940) 349-8317 * DFW Motro (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 pubhc 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 Bodily injury $100,000 $250,000 each person $500,000 each occurrence Clmms for which the City is hable vnll be prod from the Rask Retention Fund established for that purpose Sincerely, Rask Manager