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Res 2143 5/16/1978RESOLUTION NO. RESOLUTION APPROVING MULTIPLE USE AGREEMENT WITH STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION COVERING PROPOSED FITNESS TRAIL. BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF WICHITA FALLS, TEXAS, THAT: That certain multiple use agreement, a copy of which is attached hereto, between the City of Wichita Falls and the State Department of Highways and Public Transportation, covering the proposed Fitness Trail to be constructed by the City on the Kell Freeway right-of-way is hereby approved, and the City Manager is authorized to execute the same for the City of Wichita Falls. PASSED AND APPROVED this the 16th day of May, 1978. L!;7.e.4 i MAYOR ATTEST: City Clerk r MULTIPLE USE AGREEMENT STATE OF TEXAS 1 COUNTY OF WICHITA p Ill THIS AGREEMENT made this day of A.D. 19 by and between the State Department of Highways and Public Transportation, herein- 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. Ell WITNESSETH WHEREAS, the City has requested the State to permit the construction, main- tenance and operation of a Fitness Trail on the highway 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 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 Stag. 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 ( jashereinaftersetforth, it is agreed as follows : 1. The parties hereto will prepare or provide for the construction plans for the all 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 both parties hereto and when approved shall be attached tottheagreementandmadeapartthereofinallrespects. Any future revisions III or addition of permanent improvements shall be made after prior approval of the State. 2. Ingress and egress shall be allowed at all times to such facility for State III 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. III3. Parking regulations shall be established limiting parking to single unit motor 1 vehicles of size and capacity no greater than prescribed for 1-1/2 ton trucks, IIIsuch vehicles to conform in size and use to governing laws. 1-5 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. 111115. Maintenance and operation of the facility shall be entirely the responsibility , of the City. Such responsibility shall not be transferred, assigned or conveyed ill to a third party without approval of the State. Further, such responsibility shall include picking up trash, mowing, and otherwise keeping the facility in j 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 all 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 l I more than are sufficient to defray the cost of construction, maintenance and operation thereof, and shall be subject to State approval . j 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. IIII8. All structures located 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 ill 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 All 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 Ili- 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 ilmal-discontinued, each party shall , within thirty (30) days, clear the area of all lig facilities that were its construction responsibility under this agreement, as necessary to restore the area to a condition satisfactory to the State. 1111 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. IIII 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 ill 2-5 I I damage to property, arising out of, incident to or in any manner connected with its construction, maintenance or operation of the facility, which indem-1 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 damage. 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. Neithe party hereto intends to waive, relinquish, limit or condition its right to avoid any such liability by claiming its governmental immunity.1 When notified by the State to do so, the other party hereto shall promptly pa the State for the full cost of repairing any damages to the highway facility 1 1 which may result from its construction, maintenance or operation of the ' facility, or its duly authorized agents or employees , and shall promptly re- I1 imburse the State for costs of construction and/or repair work made necessan 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 1 1 nor shall it ever be construed as relieving any third party or parties from I any liabilities of such third party or parties to the parties hereto, but the ' j 1 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 cause it 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, ai - 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. ill 114. The use of this land under such agreement shall not be construed as abandonment by the State of such land acquired for highway purposes. It is to be under- ' ill 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. ThelIfacilityconstructedunderthisagreementshallnotbesigned, 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 1: 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 , 0 3-5 PI 1 I 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 jActof1964, and as said Regulations may be amended.j IIII i1 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 I Iii been made or issued. 1 ' IN WITNESS WHEREOF, the parties have hereunto affixed their signature, the City I1 on the day of A.D. 19 and the State on the day of A.D. 19 II I STATE OF TEXAS I Certified as being executed for the purpus€ III and effect of activating and/or carrying H By: out the orders , established policies , or Title- work programs heretofore approved by the State Highway and Public Transportation Commission.lit ATTEST: lit By: Engineer-Director tTitle APPROVAL RECOMMENDED: It I District Engineer Chief Engineer of Maintenance Operations 111, lirChief Engineer of Highway Design 0 0., 0: 4-5 If ATTACHMENT A Inasmuch as this project is on the Federal-aid highway system, the following II additional requirements are applicable in accordance with the Federal HighwayAdministration's Federal-Aid Highway Program Manual . I 1. 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 FHWA. 2. Any change in the authorized use of airspace shall receive prior approval bytheStateDepartmentofHighwaysandPublicTransportationsubjecttocon- currence by the FHWA. 3. The airspace shall not be transferred, assigned or conveyed to another party j without prior State Department of Highways and Public Transportation approval subject to concurrence by the FHWA. I 4. This agreement will be revokable in the event that the airspace facilityceasestobeusedorisabandoned. i I f i 1 i 5-5