HomeMy WebLinkAboutRES 19-074-ARESOLUTION NO. 19-074-A
WHEREAS, on March 26, 2019 the City Council of the City of Beaumont, Texas
passed Resolution No. 19-074 authorizing the City Manager, or his designee, to
execute a Multiple Use Agreement between the City of Beaumont Police Department
and the Texas Department of Transportation (TxDOT) for the use of state highway right-
of-way to allow the construction, maintenance and operation of a public trailer mounted
license plate reader to be located at IH -10 at US 69 Interchange and 11th Street Exit
westbound and eastbound; and,
WHEREAS, TxDOT wishes to amend the agreement by deleting the sentence in
Section 12. Indemnification which states that jurisdiction and venue under the
agreement will lie in Jefferson County, Texas; and,
WHEREAS, an amendment to the Multi Use Agreement between the City of
Beaumont Police Department and the Texas Department of Transportation (TxDOT) is
necessary to reflect the sentence deletion in Section 12. Indemnification which states
that jurisdiction and venue under the agreement will lie in Jefferson County, Texas;
NOW, THEREFORE, BE IT RESOLVED BY THE
CITY COUNCIL OF THE CITY OF BEAUMONT:
THAT the statements and findings set out in the preamble to this resolution are hereby,
in all things, approved and adopted; and,
THAT the Multi Use Agreement between the City of Beaumont Police
Department and the Texas Department of Transportation (TxDOT) is hereby amended
to reflect the sentence deletion in Section 12. Indemnification which states that
jurisdiction and venue under the agreement will lie in Jefferson County, Texas. The
Agreement is substantially in the form attached hereto as Exhibit "A" and made a part
hereof for all purposes; and,
BE IT FURTHER RESOLVED THAT the City Manager, or his designee, be and
they are hereby authorized to execute an amended Multiple Use Agreement between
the City of Beaumont Police Department and the Texas Department of Transportation
(TxDOT) for the use of state highway right-of-way to allow the construction,
maintenance and operation of a public trailer mounted license plate reader to be located
at IH -10 at US 69 Interchange and 11th Street Exit westbound and eastbound.
The meeting at which this resolution was approved was in all things conducted in
strict compliance with the Texas Open Meetings Act, Texas Government Code, Chapter
551.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 9th day of
April, 2019.
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Form 2044 (Rev. 10!18)
Paga 1 or 10
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 Beaumont Police Department , hereinafter called City
party of the second part, Is to become effective when fully executed by both parties.
WHEREAS, on the day day of month of the year , 2019 , the governing
body for the City , entered into Resolution/Ordinance-N-0. Ordinance
hereinafter identified by reference, authorizing the City is participation in this
agreement with the State; and
WHEREAS, the City has requested the $tate to permit the construction,
maintenance and operation of a public Trailer Mounted License Plate Reader
on the highway right of way, (ROADWAY IH -10 WB and EB CONTROL SECTION N0. 0028-13 }.
(General description of area Including either the control number or GPS coordinates.)
@US 69 Interchange and @11th St. Exit with GPS 3005'45.00"N; 9407'60.00"W and 3005'43.00"N; 94a
&0.00^W
shown graphically by the preliminary conceptual site plan In Exhibit "A° and being more specifically
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 City will enter Into agreements with the State for
the purpose of determining the respective responsibillfles 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 opere0on of the highway facility, all as
determined from engineering and traffic Investigations conducted by the State.
Farm 2044 (Rev. 10!18)
Page 2 of 10
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
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,
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. Any sidewalks,
curb ramps and other pedestrian elements to be constructed, either on site or off site, by the
City 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
City and found not to comply with ADA or TAS shall be corrected at the entire expense
of the City
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 11/2 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.
Forth 2044 (Rev, 10/18)
Pages of 10
4. PROMBI71ONiSIGNS
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.
S. RESPONSIBILITIES
Timely maintenance, repair 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 the advanced written approval of the State. These responsibilities expressly
Include the timely maintenance and repair of any portion of the facility necessary to comply with the
Americans with Disabilities Act. 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.
If the State determines that City has failed to comply with these responsibilities,
it will perform the necessary work and charge City the actual cost of the work.
G. FEES
Any fees levied for use of the facilitles 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 city shall maintain all books, documents, papers,
accounting records and other evidence pertaining to fees collected and costs (hereinafter called
the Records), The City 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. Audit Report, if fees are collected by the City for the use of the facility
under this agreement, the city will provide the State an annual audit report
detailing the fees collected for the use of the facility and the costs associated with constructing,
maintaining, and operating the facility within the same period, If the report shows more fees
collected than expenses for the construction, operation, or maintenance of the facility the
City must provide a multiple year plan detailing how the additional revenue
will be used for construction, operation, or maintenance of the facility.
Form 2044 (Rev. 10118)
Page 4 of 10
C. Avpilability. 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 city '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 and
City shall be responsible for the facility's timely removal at no cost to the State,
If the State determines that city has failed to timely remove the facility, it will
perform the necessary work and charge City the actual cost of the work.
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.
8. 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 shall be subject to regulation by the State.
10. RESTORATION OF AREA
The City shall provide written notification to the State that such facility will be
discontinued for the purpose defined herein. The City 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.
Form 2044 (Rev, 7011a)
Nape 5 131 10
12. INDEMNIFICATION
City AGREES TO HOLD AND SAVE THE STATE OF TEXAS FREE
FROM DAMAGES THAT MAY RESULT FROM CONSTRUCTION OF THE PROJECT
DESCRIBED HEREIN. THE INDEMNIFICATION OF THE STATE SHALL EXTEND FOR A
PERIOD OF TWO (2) YEARS BEYOND THE DATE OF TERMINATION OF THIS
AGREEMENT. J --n i e,,A Aj ► c c -f t ohs Lt) t AJ fAC.....
DURING EACH YEAR WHILE THERE IS ANY LIABILITY BY REASON OF THE
AGREEMENT CONTAINED IN THIS SUBSECTION OF THIS RESOLUTION, INCLUDING
THE CALENDAR YEAR 2019 , THE City of Beaumont (CITY) SHALL COMPUTE
AND ASCERTAIN THE RATE AND AMOUNT OF AD VALOREM TAX, BASED ON THE
LATEST APPROVED TAX ROLLS OF SAID ENTITY, WITH FULL ALLOWANCES BEING
MADE FOR TAX DELINQUENCIES AND COSTS OF TAX COLLECTION, WHICH WILL BE
SUFFICIENT TO RAISE AND PRODUCE THE MONEY REQUIRED TO PAY ANY SUMS
WHICH MAY BE OR BECOME DUE DURING ANY SUCH YEAR, IN NO INSTANCE TO BE
LESS THAN TWO (2%) PER CENT OF SUCH OBLIGATION, TOGETHER WITH INTEREST
THEREON, BECAUSE OF THE OBLIGATION HEREIN ASSUMED.
SAID RATE AND AMOUNT OF AD VALOREM TAX IS HEREBY ORDERED TO BE LEVIED
AND IS HEREBY LEVIED AGAINST ALL TAXABLE PROPERTY IN SAID ENTITY FOR
EACH YEAR WHILE ANY LIABILITY EXISTS BY REASON OF THE OBLIGATION
UNDERTAKEN BY THIS SUBSECTION OF THIS RESOLUTION, AND SAID AD VALOREM
TAX SHALL BE ASSESSED AND COLLECTED EACH SUCH YEAR UNTIL ALL OF THE
OBLIGATIONS HEREIN INCURRED SHALL HAVE BEEN DISCHARGED AND ALL
LIABILITY HEREUNDER DISCHARGED.
No party to this agreement Intends to waive, relinquish, limit or condition its general governmental
immunity from liability in any way.+ 5 a °e-� v`'few� tl b"`��
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Each party agrees and acknowledges that it Is not an agent, servant, or employee of the other party
and that under this provision each party is responsible only for its own acts and for those of its
agents, servants, independent contractors or employees. Such responsibility Includes, but Is not
limited to any claims or amounts arising or recovered under the "Workers Compensation Law,° the
Texas Tort Claims Act, Chapter 101, Texas Civil Practice and Remedies Code; or any other
applicable laws or regulations, all as time to time may be amended.
Farm 2044 (Rev, 10118)
Page B of io
Nothing in this agreement shall Oe construed as creating any liability in favor of any thirst pprty
against the State and the City Additionally, this agreement shall not ever be
construed as relieving any third party from any liability against the State, Furthermore, the
City shall become fully subrogated to the State's rights of recovery and shall be
entitled to maintain any action over and against any third party who may be liable for damages. The
State agrees to execute and deliver instruments and papers and to otherwise do that which is
necessary to secure such rights.
13. INSURANCE
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, maintenance, repair and operation of the facility. City
shall 'include TxDOT as an additional --insured by endorsement in City 's
commercial general liability insurance policy. 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. 1660) or appropriate certificate of self -Insurance and shall maintain the
required coverage during the construction of the facility, y� �` CtA C4 � � FC -A4 CP- S-
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14. USE OF RIGHT OF WAY I ; a fa � l : i� S yr c�-1 e, e-- G pPv 1; � 5,
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.
15. ADDITIONAL_ CONSENT REQUIRED
The State asserts only that it has sufficient title for highway purposes, The City
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 an 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,
17. CIVIL. RIGHTS ASSURANCES
The City , for itself, its personal representatives, successors and Interests and
Fort 2044 (Rev. MIS)
Pape 7 of 10
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 part€cipation in,
denied the benefits of, or otherwise be subjected to discrimination; (3) that the
City 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.
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 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.
20. AUDIT
The State may conduct an audit or investigation of any aspect of this agreement. The
City 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 City if that service is authorized by this
agreement.
Forth 2044 (Rev 10He)
Page B of 10
21. 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 indirectly 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.
All notices required under this agreement shall 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
23. TIMELY PAYMENT
(Name of other party)
(Mailing Address)
Address Name
Address Name
Address Road/Street/Hwy
Address City/StateOp
When required by any provision of this agreement requires a payment to be made to the State, 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 the other
party's construction, maintenance, repair or operation of the facility.
24. 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)
Foun2044 (Rev, MIS)
Page 9 of 10
i 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: Signature heretofore approved and authorized by the Texas
Transportation Commission,
Printed Name y Director, Maintenance Division
Title Printed Name
Agency
Contact Office and Telephone No.
Date
APPROVAL RECOMMENDED:
District Engineer
Printed Name
Date
Form 2D44 (Rev.10NB)
Page 1D of 10
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, § 710.105.
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 real property Interest shall receive prior approval by the Texas
Department of Transportation subject to concurrence by the FHWA.
3. Real property Interest 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 real property interest facility ceases to be used
oris abandoned.
EXHIBIT E