11-TXDOT MULTIPLE USE AGREEMENTItem No. 11
Memo�anduln
TO: City Council
John Godwin, City Manager
FROM: Shawn Napier, P.E., Director of Engineering, Planning & Development
SUBJECT: TEXAS DEPARTMENT OF TRANSPORTATION MULTIPLE USE
AGREEMENT
DATE: 2-5-2013
BACKGROUND: The Texas Department of Transportation (TxDOT) closed the roadside park
located at the southeast corner of U.S. Highway 82 (Bonham St.) and SW 41st St. several years
ago. City Council has talked about this on Roadside Park on multiple occasions (10-10-2011,
10-24-2011, 11-14-2011 and 12-12-2011). Most of the discussion has been about screening the
east and south sides of the park. Several proposals have been submitted for consideration. The
Council chose the following option. The Agreement proposes rebuilding of the roadway through
the park with a flexible base subgrade and two course seal coat surface (small rock placed over
asphalt). It also includes two parking areas, as well as three concrete pads for picnic tables and
trash cans. The screening that was selected was 100 bushes to be planted four feet apart on the
south and east sides of the park. The total cost of these items is estimated at $33,200.
STATUS OF ISSUE: The City of Paris can approve the Agreement with TxDOT which will
require the city to build the items listed above and maintain the park. Maintenance cost is
estimated at approximately $1,200 per year and the construction cost is estimated at $33,200.
The City has the option of doing nothing with the property.
BUDGET: The cost for all the proposed work is estimated at $33,200.00.
RECOMMENDATION: Approve a Resolution approving a Multiple Use Agreement with the
Texas Department of Transportation for construction, maintenance and operation of a roadside
park located at the southeast corner of U.S. Highway 82 (Bonham St.) and SW 415� St.
D RAFT
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS;
APPROVING A MULTIPLE USE AGREEMENT BY AND BETWEEN THE
STATE OF TEXAS AND THE CITY OF PARIS, TEXAS; PROVIDING FOR
CONSTRUCTION , MAINTENANCE AND OPERATION OF THE ROADSIDE
PARK LOCATED ALONG US HIGHWAY 82 AT THE INTERSECTION OF 41sT
SW STREET IN THE CITY LIMITS; AUTHORIZING THE CITY MANAGER TO
EXECUTE ON BEHALF OF THE CITY, ANY AND ALL DOCUMENTS
NECESSARY FOR THE MULTIPLE USE AGREEMENT; MAKING OTHER
FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; AND
DECLARING AN EFFECTIVE DATE.
WHEREAS, the City Council desires to enter into a Multiple Use Agreement with the
State of Texas to improve the current condition of the roadside park located along US
Highway 82 W at the intersection of 41St Street SW in the Paris city limits to provide
beautification and practical use for the community; and,
WHEREAS, a conceptual site plan for the roadside park improvements is attached to
the Agreement further describes the improvements the City would like to provide to the
roadside park; and,
WHEREAS, the State of Texas has indicated its willingness to approve the Multiple
Use Agreement with the City of Paris, Texas for improvements to the roadside park; and,
WHEREAS, the City Council hereby finds that it is in the best interest of the City and
its citizens to enter into this Multiple Use Agreement with the State of Texas.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
PARIS, TEXAS, THAT:
Section 1. The findings set out in the preamble to this resolution are hereby in
all things approved.
Section 2. The terms and conditions of the Agreement, having been reviewed by
the City Council of the City of Paris and found to be acceptable and in the best interest of
the City of Paris and its citizens, is hereby in all things approved.
Section 3. That the City Manager is hereby authorized to execute on behalf of the
City of Paris, Texas all documents necessary for the Multiple Use Agreement.
Section 4. This resolution shall be effective immediately upon passage.
DULY PASSED AND APPROVED this 11th day of February, 2013.
A.J. Hashmi, M.D., Mayor
ATTEST:
Janice Ellis, City Clerk
APPROVED AS TO FORM:
W. Kent McIlyar, City Attorney
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o/Tronaporteficn
Form 2044 (Rev. 11/11)
Page 1 of 9
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
City of Paris, Texas , hereinafter called
the "Local GovernmenY'
executed by both parties.
WHEREAS, on the
body for the
into Resolution/Ordinance No.
reference, authorizing the
this agreement with the State; and
WHEREAS, the
, party of the second part, is to become effective when fully
WITNESSETH
day of
Local Government
Local Government
Local Government
construction, maintenance and operation of a public
Roadside Park
right of way, (Generaf description of area)
, 20 , the governing
, entered
hereinafter identified by
's participation in
has requested the State to permit the
on the highway
Park located along US Highway 82 at the intersection of 41 st Street in the City Limits of Paris
shown graphically by the preliminary conceptual site plan in Exhibit "A" and being more specificaliy
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 Local Government will enter into
agreements with the State for the purpose of determining the respective responsibilities of the
Local Government 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.
Form 2044 (Rev. 11/11)
Page 2 of 9
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. DESIGN AND CONSTRUCTION
Local Government 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 controi, necessary horizontal and vertical clearances for
highway structures, adequate landscape treatment, adequate detail to ensure compliance with
applicable structural design standards, sufficient traffic control provisions, and general layout. They
shall also delineate and define the construction responsibilities of both parties hereto. Completed
plans wiil be submitted to State for review and approval and when approved shall be attached to the
agreement and made a part thereof in all respects. Construction shall not commence until plans have
been approved by the State. Any future revisions or additions shall be made after prior written
approval of the State. Any sidewalks, curb ramps and other pedestrian elements to be constructed,
either on site or off site, by the Local Government shall be in accordance with the requirements of
Title II of the Americans With Disabilities Act (ADA) and with the Texas Accessibility Standards (TAS).
Elements constructed by the Local Government and found not to comply with ADA or TAS shall be
corrected at the entire expense of the Local Government
2. 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 operations will be prohibited.
3. PARKING REGULATIONS
Parking regulations shall be established limiting parking to single unit motor vehicles of size and
capacity no greater than prescribed for 1'/2 ton trucks, such vehicles to conform in size and use to
governing laws. Parking shall be permitted only in marked spaces.
Parking shall be prohibited when a security threat, as determined by TxDOT, exists.
Form 2044 (Rev. 11/11)
Page 3 of 9
4. PROHIBITION/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 those
required for proper use of the area will be prohibited. All signs shall be approved by the State prior to
the actual erection.
5. RESPONSIBILITIES
Maintenance and operation of the facility shall be entirely the responsibility of the
Local Government . 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.
6. FEES
Any fees levied 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 operations thereof, and shall be subject to State
approval.
A. Retention Period. The Local Government shall maintain all books,
documents, papers, accounting records and other evidence pertaining to fees collected and costs
(hereinafter called the Records). The Ciry shall make the records available during the term of the
Agreement and for four years from the date the Agreement is terminated, until completion of all
audits, or until pending litigation has been completely and fully resolved, whichever occurs last.
B. Availability. The State or any of its duly authorized representatives, the Federal Highway
Administration, the United States Department of Transportation, Office of Inspector General, and
the Comptroller General shall have access to the Local Government 's
records that are directly pertinent to this Agreement for the purpose of making audits and
examinations.
7. 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.
Form 2044 (Rev. 11/11)
Page 4 of 9
8. 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 judgment that such 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.
9. 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 sha►I be subject to regulation by the State.
10. RESTORATION OF AREA
The Local Government shall provide written notification to the State that such
facility will be discontinued for the purpose defined herein. The Local Government
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.
11. PREVIOUS AGREEMENTS
It is understood that this agreement in no way modifies or supersedes the terms and provisions of any
existing agreements between the parties hereto.
12. INDEMNIFICATION
Each party acknowledges that it is not an agent, servant, or employee of the other party. Each party
is responsible for its own acts and deeds and for those of its agents, servants, or employees.
Neither party hereto intends to waive, 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, and shall
promptly reimburse the State for costs of construction and/or repair work made necessary by reason
of such damages.
Form2044 (Rev.11/11)
Page 5 of 9
Nothing in this agreement shall be construed as creating any liability in favor of any third party against
the State and the Local Government . Additionally, this agreement shal� not ever
be construed as relieving any third party from any liability against the State and the
Local Government 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
Local Government to pay or disburse any sum of money hereunder.
13. HOLD HARMLESS
The Local Government shall indemnify and save harmless the
State and its officers and employees from all claims and liability due to its materials or activities of
itself, its agents, or employees, performed under this agreement and that are caused by or result
from error, omission, or negligent act of the party or of any person employed by the party. The
Local Government shall also indemnify and save harmless the State from any
and all expense, including but not limited to attorney fees that may be incurred by the State in
litigation or otherwise resisting the claim or liabilities that may be imposed on the State as a result of
such activities by the Local Government , its agents, or employees authorized
under this agreement. The Local Government further agrees to indemnify and
save harmless the State from and against all claims, demands, and causes of action of every kind
and character brought by any employee of the party against the State due to personal injuries and/or
death to such employee resulting from any alleged negligent act by either commission or omission on
the part of the Local Government . The indemnification of the State shall extend
for a period of three (3) years beyond the date of termination of this agreement.
14. INSURANCE
The Local Government , 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, maintenance and operation of the facility occupying such
airspace or thereafter, and to save the State 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, the
Local Government 's construction contractor shall submit to the State a completed
insurance form (TxDOT Form No. 1560) and shall maintain the required coverage during the
construction of the facility.
Form 2044 (Rev. 11/11)
Page 6 of 9
15. USE OF RIGHT OF WAY
It is understood that the State by execution of this agreement does not impair or relinquish the State's
right to use such land for highway purposes when it is required for the construction or re-construction
of the traffic facility 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 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 its authority and title permits.
16. ADDITIONAL CONSENT REQUIRED
The State asserts only that it has sufficient title for highway purposes. The
Local Government shall be responsible for obtaining such additional consent,
permits or agreement as may be necessary due to this agreement. This includes, but is not limited
to, appropriate permits and clearances for environmental, ADA and public utilities.
17. FHWA ADDITIONAL REQUIREMENTS
If the Facility is located on the Federal-Aid Highway System, "ATTACHMENT A", which states
additional requirements as set forth in the Federal Highway Administration's Title 23, Code of Federal
Regulations, § 710, shall be attached to and become a part of this agreement.
18. CIVIL RIGHTS ASSURANCES
The Local Government , 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 grounds 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 furnishing 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
Local Government shall use the premises in compliance with all other require-
ments 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 if 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 facilities thereon, and
hold the same as if said agreement had never been made or issued.
Form 2044 (Rev. 11/11)
Page 7 of 9
19. 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.
20. 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.
21. AUDIT
The State may conduct an audit or investigation of any aspect of this agreement. The
Local Government must provide the State with access to any information the
State considers relevant to the investigation or audit. The audit can include, but is not limited to, any
contract for construction or maintenance of any facility or structure authorized by this agreement or any
contract to provide a service to the Local Government if that service is author-
ized by this agreement.
22. AUTHORITY OF STATE AUDITOR
The state auditor may conduct an audit or investigation of any entity receiving funds from the state
directly under the contract or indirectly through a subcontract under the contract. Acceptance of
funds directly under the contract or indirectiy through a subcontract under this contract acts as
acceptance of the authority of the state auditor, under the direction of the legislative audit committee,
to conduct an audit or investigation in connection with those funds. An entity that is the subject of an
audit or investigation must provide the state auditor with access to any information the state auditor
considers relevant to the investigation or audit.
23. COMPLIANCE OF THE LAW
The Local Government shall comply with all federal, state, and local law, statutes,
ordinances, rules and regulations and with the orders and decrees of any courts or administrative
bodies or tribunals in any manner affecting the performance of this agreement.
24. NOTICES
All notices required under this agreement shali be mailed or hand delivered to the following
respective addresses:
STATE
(Mailing Address)
Texas Department of Transportation
Maintenance Division
125 East 11th Street
Austin, Texas 78701-2483
(Name of other party)
(Mailing Address)
Form2044 (Rev.11/11)
Page 8 of 9
25. WARRANTS
The signatories to this agreement warrant that each has the authority to enter into this agreement on
behalf of the party represented.
List of Attached Exhibits:
Exhibit A - General Layout
Exhibit B- Metes and Bounds Description
Exhibit C- Approved Construction Plans
Exhibit D- Certificate of Insurance (TxDOT Form 1560)
Exhibit E- Attachment A(FHWA Additional Requirements)
IN WITNESS WHEREOF, the parties have hereunto affixed their signature, the
on the day of ,
20 , and the State on the day of , 20
STATE OF TEXAS
Executed and approved for the Texas
(Name of other party) Transportation Commission for the purpose and
effect of activating and/or carrying out the orders,
and established policies or work programs
By� heretofore approved and authorized by the Texas
Title
Transportation Commission.
By:
Printed Name Director, Maintenance Division
Date
Printed Name
Date
APPROVAL RECOMMENDED:
District Engineer
Printed Name
Date
Form2044 (Rev.11/11)
Page 9 of 9
ATTACHMENT A
Inasmuch as this project is on the Federal-Aid highway system, the following additional requirements as
applicable with the Federal Highway Administration's Title 23, Code of Federal Regulations, § 710.
1. Any significant revision in the design or construction of the facility shall receive prior approval by the
Texas Department of Transportation subject to concurrency by the FHWA.
2. Any change in the authorized use of airspace shall receive prior approval by the Texas Department
of Transportation subject to concurrence by the FHWA.
3. The airspace shall not be transferred, assigned or conveyed to another party without prior Texas
Department of Transportation approval subject to concurrence by the FHWA.
4. This agreement will be revocable in the event that the airspace facility ceases to be used or is
abandoned.
EXHIBIT E
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fsst:::sss:::as:ts B�lor� m�. Hd. A. Y.oCu2ation, a tiot�r� publia in and far •aid aonnty anQ
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*CONCRETE TABLE PADS "
WILL BE 5" THICK 3,000 PSI �� 20' WIDE PAVING
CONCRETE WITH #3 REBAR WITH 8" FLEXIBLE BASE
ON 18" CENTERS " r IN 4" COMPACTED LIFTS AND
A 2 COURSE CHIP SEAL WEARING
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HWY 82W ROADSIDE PARK
�� PROPOSED ADDITIONS
f '�1::� C°I�T.�� ��'` ��R�I��' J U LY 2012
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�' - DRAWN BY: ARE
� Texas Department of Transportation (TxDOT)
�� CERTIFICATE OF INSURANCE
Form 1580-CSS
Professional Provlder Insurance
(01f12)
Page 2 of 2
This cert�cate of insurance is provided for informa6onal purposes only. This ceAificate dces not confer any rights or obligations olher ihan the rights and
obiigalions conveyed by the policies referenced on this certificate. The terms oi the referenced policies conUol over the terms of this ceAificate.
Prior to the beginning of worlc, the ConVactor shall obtain the minimum insurance and endorsements specified. Only the TxDOT certificate of insurance forrn
is acceptable as proof of insurance for department contracts. Agenls should complete the torm providing all requested informaUon then either fax or mail this
form directly to the address listed on age two of this form. Copies of endorsements listed below are not required as attachmenls to lhis certficete.
.
Insured: � : -r e °�r• s
StreetlMailing Address: . D. � �,X �03?
City: J�o.�� s State: � Zip Code: 'T.S� l
Phone Number: �03 -' %a' � 9� �l Vendor EIIV Number (11 digits): �%S',�p0 O 6 3 S��
Workers' Compensation Insurance Coverage:
Endorsed with a Waiver of Subrogation in favor of TxDOT.
Carrier Name: Carrier Phone Number:
Address: City: State: Zip:
Type of Insurance Policy Number Effective Date Expiration Date Limits of Liability
Workers' Compensation Not Less Than: Statutory - Texas
Commercial General Liabilitv Insurance:
Carrier Name:% �r; ��..i .� o a. T 14 P Carrier Phone Number: S�- %-a .3 o O
Address: . �, Qo � i City: .�ST.'a State: '% Zip:78 /
Type of Insurance Policy Number Effective Date Expiration Date Limils of Liability
Commercial General Not Less Than:
Liability Insurance p_�_ �a �� 3 0- �3 $500,000 each occurrence
Bodily Injury S 8 a3 � $100,000 each ocxurrence
Property Damage
OR $100,000 for aggregate
Commercial General OR
Liability Insurance $600,000 combined single limit
Automobile Liabilitv Insurance:
Carrier Name: � as ,.r ;�. � !.0 �-1- /� Carrier Phone Number: J" a�- -- ,Z.3 o O
Address: /a p, o �f / City: vs �,��/ State: � Zip: /
Type of Insurance Policy Number Effective Date ExpiraGon Date Limits of Liability
Business Automobile Policy Not Less Than:
8odily Injury S 8 a 3 ! �,� �-/� q- 3°- � 3 $250,000 each person
Property Damage � $500,000 each occurrence
$100,000 each occurrence
Umbrella Policy (if applicable):
Carrier Name: Camer Phone Number:
Address: City: State: Zp:
Type of Insurance Policy N�mber Effective Date Expiration Date Limits of Liabillty
Umbrella Policy
Authorized Agent name, address and zip code:
THIS IS TO CERTIFY to the Texas Department oi Transportation acfing on behalf of lhe State of Texas ihal lhe insurance policies named are in full force and etfect. !f
this /orm is sent by /acsimife machine (fax), the sender adopts the document received by TxDOT as a duplicate original and adopts the signature produced by the
receiving fax machine as the sender's original signature.
The Texas Department of TranspoAaGon maintains the informalion collected lhrough this form. With few exceplions, you are entitled on request to be i�ormed about
the infortnaGon thal we collect about you. Under seclions 555.021 and 553.023 of the Texas Govemment Code, you also are entiUed to receive and review lhe
information. Under section 559.004 of the Govemment Code. you a e also enti have us correct infortnation about you that is incorrect.
Area Code ( 0-3 ) ,g�`! � / � �� � �? S " /.�
Authorized Agent's Phone Number Original Signature of Authorized Agent Date