2001R41- MULTIPLE USE AGREEMENT-VFW Flag Pole
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RESOLUTION NO. OI-R-41
MULTIPLE USE AGREEMENT
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STATE OF TEXAS
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COUNTY OF TRAVIS *
THIS AGREEMENT made by the State of Texas by and between the Texas Department
of Transportation, hereinafter referred to as the "State", party of the first part, and
The City of Schertz, hereinafter called the City, party of the second part, is to become effective when
fully executed by both parties.
WITNESSETH
WHEREAS, on the I~~ day of (kef hlhc'f 20.QL, the governing body for the City, entered into
Resolution/Ordinance No. 01-;' - <II herein after identified by reference, authorizing the City's
participation in this agreement with the State; and
WHEREAS, the City has requested the State to permit the construction, maintenance and
operation of a flagpole on the highway right-of-way of FM 78, approximately 267 feet east of Pecan
Grove Street on the south side of FM 78 shown graphically by the preliminary conceptual site plan
in Exhibit A and being more specifically described by metes and bounds in Exhibit a hereinafter
referred to as the Facility, which are attached and made a part hereof; and
WHEREAS, the State has indicated its willingness to approve the establishment of such
Facility conditioned that the City will enter into agreements with the State for the purpose of
determining 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.
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
The City 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 for highway structures,
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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 will 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.
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 activities for periods required for such operations
will be prohibited.
3. PARKING REGULATIONS
Parking of any vehicles is not permitted within the limits of the Facility.
4. PROHIBITIONS/SIGNS
Regulations shall be established prohibiting the parking of any vehicles, and prohibiting use of the
Facility 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
.9!Y. 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 arid sanitary condition, and surveillance by
police patrol to eliminate the possible creation of a nuisance o"r hazard to the public.
6. FEES
The City is not permitted to levy any fees for the use of the Facility.
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.
8. MODIFICATIONITERMINATION 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
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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 pot~ntial fire hazard shall be subject to regulation by the State.
10. RESTORATION OF AREA
The 9!1' shall provide written notification to the State that such Facility will be discontinued for the
purpose defined herein. The 9!Y 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
The .9!Y acknowledges that it is not an agent, servant, or employee of the State, and that it is
responsible for its own acts and deeds and for those of its agents or employees during the
performance of contract work.
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.
Nothing is this agreement shall be construed as creating any liability in favor of any third party
against the State and the f!!y. Additionally, this agreement shall not ever be construed as relieving
any third party from any liability against the State and the City, but the ~ 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.9!Y to payor disburse any sum of money hereunder.
13. INSURANCE
The City shall provide necessary safeguards to protect the public on State-maintained highways
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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 City'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.
14. 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
reconstruction 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.
15. ADDITIONAL CONSENT REQUIRED
The State asserts only that it has sufficient title for highway purposes. TheCity 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.
16. FHWA ADDITIONAL REQUIREMENTS
If the facility is located on the Federal-Aid Highway System, "ATTACHMENT An (Exhibit E), which
states additional requirements as set forth in the Federal Highway Administration's Title 23, Code
of Federal Regulations, Section 710, shall be attached to and become a part of this agreement.
17. CIVIL RIGHTS ASSURANCES
The f!!y, 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 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 theCity shall use the
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 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.
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18. 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.
19. 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 orunenforceability 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.
20. NOTICES
All notices required under this agreement shall be mailed or hand delivered to the following
respective addresses:
STATE
(Mailing Address)
CITY OF SCHERTZ
(Mailing Address)
Texas Department of Transportation
125 East 11 th Street
Maintenance Division
Austin, TX 78701-2483
City of Schertz
1400 Schertz Parkway
P.O. Drawer I
Schertz, Texas 78154-0890
21. 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)
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IN ;~~~ ~rREOF. the parties hee hereunto affixed their signature, Ie
the Cit on the day ofJJecelY\ '1!..2o Q[, and the State on the J I-~ day
of ,20~
CITY OF SCHERTZ
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STATE OF TEXAS
By: t 0- Y ~11 Iff A6& R.
. (Title)
Executed and approved for 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 Transportation
Commission.
U:\MUASchertzFM78
Revised 11-26-01
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DESCRIPTION OF LOCATION WITHIN TxDOT ROW TO BE USED FOR
PLACING A FLAG POLE TO BE MAINTAINED BY THE CITY OF SCHERTZ
BEGINNING at the cemer line of Pecan Grove in the City of Schertz where it
intersects at F. M. 78 Center Line Sta. 18+638.366. '
THENCE, N 62013' 51" E along the center line of F. M. 78 a distance of 81.387
meters (267.02 feet).
THENCE, S 27046' 09" E a distance of 11.473 meters (37.64 feet) to the center
of the 3.657 meter (12.0 foot) square area comprising the multiple use area.
Said 3.657 meter (12.0 foot) square multiple use area will be used to place a
flagpole at its center point.
Said flagpole shall be Concord Industries, Inc. Continental model C25050125.
The pole shall have an exposed height of 7.62 meters (25 feet). The pole will be
127 millimeters (5 inches) at its base and 76 millimeters (3 inches) at its top. The
pole shall be constructed of 3.175 millimeter (0.125 inch) seamless aluminum.
The pole will be constructed to withstand wind gust speeds of 40 meter per
second (90 mph).
Said flagpole shall be restricted to display a maximum flag size of 0.914 meters
(3 feet) by 1.524 meters (5 feet).
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ATTACHMENT A
Indsmuch 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, Section 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 concurrence 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