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Res 070-2013 7/16/2013RESOLUTION NO. 70 -2013 Resolution Authorizing The City Manager To Execute All Documents Necessary To Terminate Obsolete Multiple Use Agreements With The Texas Department Of Transportation (TxDOT), Including An Agreement That Provided For An Exercise Course In The Area Now Occupied By Kell Freeway WHEREAS, TxDOT has requested the City terminate the attached Multiple Use Agreement with the Texas Department of Transportation from 1978 that provided for an exercise course in the area now occupied by Kell Freeway, and, due to the completion of Kell Freeway, this agreement is obsolete, WHEREAS, TxDOT has requested the City take formal action to terminate this Multiple Use Agreement, and the City desires to accommodate TxDOT's record - keeping requirements, WHEREAS, the City has other multiple use agreements with TxDOT, some of which may be determined by TxDOT to remain active, and these agreements determined by TxDOT to be active may relate to real property currently occupied by land uses that are unrelated to their original objectives. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: 1. The City Manager is authorized to execute all documents necessary to terminate the attached Multiple Use Agreement with the Texas Department of Transportation from 1978 that provided for an exercise course in the area now occupied by Kell Freeway, in a form to be approved by the City Attorney. 2. The City Manager is further authorized to execute all documents necessary to terminate other multiple use agreements that are determined by City staff to be obsolete, in a form to be approved by the City Attorney. PASSED AND APPROVED this the 16th day of July, 2013. MAY nR ATTEST: Acting City Clerk MULTIPLE USE AGREEMENT STATE OF TEXAS COUNTY OF WICHITA THIS AGREEMENT made- this day of A.D. 19 -7, by and between the State Department of Hogg ways and Public Transportation, her in after referred to as "State ", party of the.first part, and City-of Wichita Falls, Texas, hereinafter called the "City ", party of the second part. WITNESSETH WHEREAS, the City has requested the State to permit the construction, main- tenance and operation of a Fitness Trail on the highwoy.right -of -way; 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 agree- ments with the State for'the purpose of.determining the respective responsibilities of the City and Staid 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. AGREEMENT NOW, THEREFORE, in considdration of the premises and of-the .mutyal 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. 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. 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'bo.th parties hereto and when approved shall be attached to the agreement and made a part thereof in all respects. 'Any future revisions or addition of permanent improvements shall be made after prior approval of .the State. 2. Ingress and egress shell be allowed at all times to such facility for 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 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. EIS 4. Regulation shall be•established prohibiting the parking of vehicles . transporting inflammable 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 usage of the area will be prohibited. All signs shall be approved by the State. 5. 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 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. 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 operation thereof, and shall be subject to State approval. 7. 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. 8. All structures 1•ocated or constructed within the area covered by the agreement shall be fireproof. The storage of inflammable materials or other operations deemed to be a potential fire hazard shall be subject to regulation by the State. 9. 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, 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) termi- nated and the use of the area as proposed herein discontinued.. 10. Upon written notification by either party hereto that such facility should;be discontinued, each party shall, within thirty (30) days,.ciear the area of all facilities that were its construction responsibility under this agreement, as necessary to restore the area-to a condition satisfactory to the State. 11. 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. The City shall, insofar as it is legally permitted and subject to such limita- tions, 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 2 -5 damage to property, arising out of, incident to or in any manner connected with its construction, maintenance or operation of the facility, which indem- nification 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 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, 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 promptly 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 re- imburse 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 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 party 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 causedit to pay or disburse any sum of money hereunder. 13. The City 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 air-' space 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. 14. The use of this land under such agreement shalt not be construed as abandonment by the State of such.land acquired for highway purposes.. ,It is to be under- stood 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; and, when it is required`for construction of the traffic facility for which it was acquired, the facility provided by this agreement shall be. removed by the City at no cost to the State within 30 days after notification.by' the State. The facility constructed under this agreement shall not be signed. labeled, or referred to as a park. 15. 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 Federal -Aid Highway.Program Manual, shall be attached to and become a part of-this aggreement. II. The City, for itself, its personal reqpresentatives, 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 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 the City shall use the 3 -5 \./ 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- 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 lease and reenter and repossess said land and the facilities thereon, and hold the same as if said lease had never been made or issued. IN WITNESS WHEREOF, the parties have hereunto affixed their signature, the City on the _ / f day of _ ASIA y , A.D. 19 700 , and the State on the day of _�Qyd. s-r A.D. 19:x=' STATE OF TEXAS Certified as being executed for the purpose and effect of activating and /or carrying BYE out the orders, established policies, or work programs heretofore approved by the State Highway and Public Transportation Commission. ATTEST: By; Engi neer-DI rectoi-oor APPROM RECOMMENDED: e District Engineer 4e Engineer of Main tenan e Operations Chief Engineer of Highway Desfgn 4 -5 ATTACHMENT A Inasmuch as this project is on the Federal -aid highway system, the following additional requirements are applicable in accordance with the Federal Highway Administration's Federal -Aid Highway Program Manual. I. Any significant revision in the design or construction of the facility shall receive prior approval by the State Department-of Highways and Public Trans- portation subject to concurrence by the FHNA. 2. Any change in the authorized use of airspace shall receive prior - approval by the State Department of Highways and Public Transportation subject to con- currence by the FHNA. 3. The airspace shall not be transferred, assigned or conveyed to another party without prior State Department of Highways and Public Transportation approval subject to concurrence by the FHWA. 4. This agreement will be revokable in the event that the airspace facility ceases to be used or is abandoned. Field Notes for Multiple Use Agreement Being 22.31 acres of land, in the Southland Addition as recorded in Book 1, Page 46 of the map or plat records in Wichita County, Texas; said 22.31 acres consisting of Parcels 348 through 359, 364 through 371, 375 through 390, 394 through 411, 415 through 427, 432, 433 and part of 517 which is abandoned railroad right of way; said 22.31 acres of land, being more particularly described by metes and bounds as follows: COMMENCING at the intersection of the Centerline of Harrison Street with the Baseline of proposed U.S. 82 -277; THENCE N 69 009'41" E a distance of 37.13 feet to the point of BEGINNING; said point being on the east back of curb of Harrison Street.. (1) THENCE N 00 °52'22" E along the east back of curb of Harrison Street a distance of 188.90 feet*to a point for corner; . (2) THENCE N 69 009141" E along the back of curb of the existing North Frontage Street a distance of 511.31 feet to a point for curve; (3) THENCE in a curve to the left with radius of 2328.33 feet a distance of 242.12 feet to a point of tangency, said point also being on the back of the existing-curb; (4) THENCE N 63 012'12" E a distance of 389.99 feet to a point of curvature; (5) THENCE in a curve to the right with radius of 2255.33 a distance of 328.86 feet to a point of tangency, said point also being on the back of the existing curb; (6) THENCE N 71 033'28" E a distance of 280.92 feet to a point for corner; (7) THENCE S 18 026' 32" E a distance of 12.00 feet to a point for corner, said point also being the beginning of a curve to the right, the tangent at this point bearing N 71 033'28" E; (8) THENCE in a curve to the right with radius of 2243.83 feet a distance 97.08 feet to a point of tangency, said point also being on the back of the existing curb; (9) THENCE N 74 °02'14" E a distance of 434.23 feet to a point of curvature on the back of said existing curb; (10) THENCE in a curve to the left with radius of 2243.83 feet a distance of 193.80 feet to a point of tangency, said point also being on the back of the existing curb line; (11) THENCE N 69 00941" E a distance of 90.78 feet to a point.for corner, said point also being in line with the back of the west curb line of Brook Street; (12) THENCE S 00 °18'34" E a distance of 366.80 feet along the back of the west curb of Brook to.a point for corner; (13) THENCE S 69 009141" W a distance of 2576.24 feet to a point for corner, said point also'being in the back of curb of the east curb line of Harrison Street; (14) THENCE N 00 052'22" E a distance of 193.74 feet to the place of BEGINNING, and containing 22.31 acres of land, more or less.