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2028 RESOLUTION NO.m2Q2 A RESOLUTION TO APPROVE THE AIRSPACE PERMIT ISSUED BY THE ARKANSAS STATE HIGHWAY COMMISSION TO THE CITY OF WEST MEMPHIS,ARKANSAS,FOR PART OF SEGMENT 4 AND 5 OF THE MAINSTREET TO MAINSTREET MULTIMODAL CONNECTOR, AND FOR OTHER PURPOSES. WHEREAS,the City of West Memphis, Arkansas,proposes to construct a"Multimodal Connector" along US Highway 70 Section 20 and Interstate 55 Section 11, known as the Mainstreet to Mainstreet Connector, to be constructed on and near the locations set forth in Attachment`B"to the Airspace Permit; and WHEREAS,the construction of the "Multimodal Connector"on certain lands owned by the Highway Commission requires the issuance of an Airspace Permit setting forth the terms and conditions for the use of said lands; and WHEREAS, the City Council of West Memphis,Arkansas, finds that the construction and maintenance of the"Multimodal Connector"pursuant to the terms and conditions of the Airspace Permit will be in the best interests of the City of West Memphis and the Mayor should be authorized to execute the Airspace Permit on behalf of the City of West Memphis and to take any and all other actions as may be necessary or advisable to effectuate the purposes of the Airspace Permit; NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WEST MEMPHIS,ARKANSAS, THAT the Airspace Permit issued by the Arkansas State Highway Commission to the City of West Memphis,Arkansas, for the construction of a"Multimodal Connector"is hereby approved and the Mayor is hereby authorized to execute the Airspace Permit on behalf of the City of West Memphis and to take any and all other actions as may be necessary or advisable to effectuate the purposes of the Airspace Permit. PASSED AND APPROVED this IS day of July, 2013. WILLIAM H. JOHNSO , MAYOR ATTEST: PHILLIP , CITY CLERK SPONSORED BY: AIRSPACE PERMIT PART OF SEGMENT 4 AND 5 OF THE MAINSTREET TO MAINSTREET MULTIMODAL CONNECTOR CITY OF WEST MEMPHIS This Airspace Permit ("Penult") is based upon the authority granted the Arkansas State Highway Commission ("Commission") in Ark. Code Ann. § 27-67-304(b) (Repl. 1994), and the Arkansas State Highway and Transportation Department ("AHTD" or "Department"), pursuant to Commission Minute Order No. 2012-008, and is subject to the approval of the Federal Highway Administration ("FHWA"). The parties to this Permit are the Department and the City of West Memphis, Arkansas ("City"). The City has requested use of certain lands owned by the Commission, more fully set forth on Attachment "A", for a purpose that does not interfere with the public use of the property for highway purposes. This Permit shall supersede and replace all terms and conditions of any previous, if any, agreement between the City and the Department governing the use of the property set forth on Attachment "A", ("Property"). See Attachment "A" Legal Description and Right of Way Map attached hereto and made a part hereof. And also See Attachment "B" Part of Segment 4 and 5 of the Mainstreet to Mainstreet Multimodal Connector attached hereto and made a part hereof. The City proposes to construct a "Multimodal Connector" along US Highway 70 Section 20 and Interstate 55 Section 11,known as the Mainstreet to Mainstreet Multimodal Connector,to be constructed on and near the locations set forth as Attachment "B". The Department's District Engineer has made a preliminary determination that such use will not interfere with the public use of the property for highway purposes. However, any final determination of such issue will not be made until detailed plans and specifications of the improvements the City proposes to Page 1 of 10 make have been submitted to the District Engineer for final approval. The Commission will retain all right, title, interest, supervision, and jurisdiction in and over such lands. This Permit is a license only and does not convey or create any interest on the part of the City in the lands set forth on Attachment"A". In addition to the foregoing plans to construct a "Multi-use trail" along Interstate 55 right of way known as the Mainstreet to Mainstreet Multimodal Connector, serving as a multi-use trail which was requested by the City of West Memphis, Arkansas, this Permit is for the City of West Memphis to construct and assume maintenance of the area of the "Multi-use trail" specified on the attachment as along U.S. Highway 70 Section 20 and Interstate 55 Section 11 in Crittenden County for Part of Segments 4 and 5 for the purpose of providing a multi-use trail to the City. In addition, the City understands and agrees that all costs will be borne by the City, that it will be responsible for all Federal Emergency Management Agency (FEMA) and U.S. Army Corps of Engineers (Corps), if any, permits and construction will be in accordance with the requirements contained in and on Attachment `B. The Commission will retain all right, title and interest in and to such lands. This Permit is a license only and does not convey or create any interest on the part of the City in the lands described herein. The Department hereby authorizes, subject to final approval and concurrence by the FHWA, the Commission, the District Engineer and the City to use the property set forth on Attachment "A", ("Property") for the terms, purposes and conditions herein set forth. 1) This Permit is expressly contingent upon the approval and concurrence of the FHWA and submission of final plans and specification of the proposed improvements to the District Engineer and his issuance of a permit to the City approving its plans and authorizing it to proceed with construction of such permitted improvements. Page 2 of 10 2) This Permit shall be effective immediately upon its execution by the parties and is intended to be perpetual, beginning immediately upon its execution and subject to the terms and conditions contained herein; provided however, that either party shall have the right to terminate this Permit, with or without cause, upon sixty(60) days written notice to the other party. 3) The City shall use the Property only to construct a multi-use trail along U.S. Highway 70 Section 20 and Interstate 55 Section 11 right of way, which landscaping, irrigation, lighting and signage shall be shown on plans submitted to, and approved by the District Engineer, by his issuance of a permit therefore, or such other use as is expressly approved in advance and in writing by the District Engineer. Facilities and improvements presently in place and approved under previous agreements between the Department and the City shall be deemed approved. The City shall not use the Property in any way that interferes with the Property's use for highway purposes. 4) Notwithstanding any other provision regarding termination of this Permit, this Permit shall terminate upon five (5) days written notice to the City of West Memphis, Arkansas, in the event that the City's use of the Property is changed without the prior written consent of the FHWA and the Department. 5) All improvements, excavation, construction, and any other condition on the Property shall comply with the then-current AHTD Standard Specifications where applicable, including those related to maintaining traffic flow and signs, and shall be subject to the approval of the AHTD District Engineer for the area. All such improvements, excavation, construction, and other conditions shall also be subject to FHWA concurrence where and if applicable. 6) No permanent or temporary improvements or alterations shall be made in, on, or upon the site without the written consent and approval of the FHWA and the District Engineer. Page 3 of 10 7) The City shall be solely and exclusively responsible for all costs associated with the removal, modification, or relocation of any utility within the Property, which is caused by the City's use of the Property. 8) The City shall be solely and exclusively responsible for payment of all taxes and assessments that may be legally assessed on the Property as a result of any Permit issued hereunder. 9) No signs, displays, or devices, may be placed within the right of way without the written consent of the District Engineer. No signs, displays, or devices, other than traffic control signs complying with the FHWA Manual on Uniform Traffic Control Devices, shall be erected on the Property unless specifically permitted by the District Engineer. All signs during the construction and maintenance on the Property shall conform to the FHWA Manual on Uniform Traffic Control Devices, as amended. This paragraph shall not be construed to allow the placement of any signs without the permission of the District Engineer. 10) The City, at its sole expense, shall keep and maintain the greenway at all times in an orderly, clean, safe, and sanitary condition. The City shall comply with all applicable federal, state, and local laws, ordinances and regulations while using, or in possession of the Property, including without limitation all environmental laws and regulations and FHWA regulations regarding the Property's use. 11) The City shall submit all construction plans for any proposed improvements on the Property for approval by the District Engineer prior to commencing any work. Any work performed by the City on the Property shall not unduly interfere with the flow of traffic. 12) The City agrees to occupy and use the Property at its own risk and expense. Page 4 of 10 13) The City does not waive its sovereign statutory immunity, but acknowledges that the City has full legal responsibility for the proper design, construction, maintenance and operation of this multi-use trail along US Highway 70 Section 20 and Interstate 55 Section 11 right of way. The City acknowledges that the Highway Department and Highway Commission have no duty or responsibility to users of this multi-use trail, and therefore can have no liability related to the design, construction, maintenance or operation of this multi-use trail. If the Arkansas Claims Commission ever grants a claim against the Highway Department or Highway Commission for an injury or other damage to a person using Property within this Air Space Permit area, the City agrees to pay this claim for the Highway Department or Highway Commission. 14) The Commission, the Department, and the FHWA, and any officer, employee or agent thereof, retain and shall have the right to enter the Property at any time without notice to the City. 15) The Commission and Department reserve, and shall have the right, at their sole discretion, to take immediate possession of the Property in case of any national or other emergency (including temporary emergencies such as weather emergencies, traffic accidents, hazardous material spills and other such events that may be hazardous or obstruct traffic), and for the protection and maintenance of the highway facility, in which event the terms of this Permit shall be suspended. 16) If the City violates any of the conditions contained in this Permit, or if the City discontinues use of the Property for more than sixty (60) days, the Department may, without notice, declare any Permit issued hereunder terminated. 17) Upon termination of this Permit (or any permit issued hereunder) for any reason, the City shall peaceably surrender the Property to the Commission in good order and repair, Page 5 of 10 excepting reasonable use and wear thereof, damage by earthquake, fire, public calamity, the elements, or other unavoidable casualty. The Property shall be restored to its previous condition at the expense of the City; provided, if any improvements are not removed after thirty (30) days written notice from the Department to the City, the Department may: (a) proceed to remove the improvements and restore the Property, and the City shall pay the Department upon demand the reasonable cost of removal and restoration; or, (b) the Commission may, in its sole and absolute discretion, elect to declare the improvements property of the Commission, whereupon all right, title and interest of the City therein shall forthwith terminate and vest in the Commission. No cost shall be attributed to the FHWA under any part of this Permit. 18) This Permit may not be assigned and all obligations and duties of the City hereunder shall be considered non-delegable. 19) The City, as a part of the consideration hereof, does hereby covenant and agree that no person shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of the facilities on account of race, color, sex, national origin, or disability, and that in the construction of any improvements on, over, and under the Property, and the furnishing of services thereon, no person shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination on account of race, color, sex, national origin, or disability. The City further covenants that it shall use the Property 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, Nondiscrimination in Effectuation of Title VI of the Civil Rights Act of 1964, as amended. In the event of breach of any of the nondiscrimination covenants, the Department shall have the right to terminate this Permit or any permit issued hereunder without further notice. Page 6 of 10 20) The Property shall retain its character as a public right of way and the City may not charge any person a fee of any kind whatsoever to enter or use the Property, nor permit or sublease the exclusive use of the Property to any individual, entity, association, or organization of any kind whatsoever. No vending shall be allowed within the area of the Property. 21) It is understood that granting of this Permit to the City of West Memphis, Arkansas, does not impair or relinquish the Commission's right to use the Property for right of way purposes for the construction, maintenance, or reconstruction of the traffic facility, nor shall use of the land under this Permit ever be construed as abandonment by the Commission of land acquired for highway purposes. The permitted use by the City shall remain subordinate to the Commission's ownership and use of the property for highway purposes. 22) It is understood by the parties that this Permit may be executed in any number of copies, each of which shall be deemed an original. Page 7 of 10 Executed on this day of , 2013. ARKANSAS STATE HIGHWAY AND CITY OF WEST MEMPHIS, ARKANSAS, TRANSPORTATION DEPARTMENT, PERMITEE PERMITOR By: By: "'�� �.-,►,,.-s Scott E.Bennett William H.Johnson, ayor Director of Highways and Transportation B -+!C — Philip Para, ity Clerk Page 8 of 10 ACKNOWLEDGMENT STATE OF ARKANSAS) )ss COUNTY OF PULASKI) BE IT REMEMBERED that on this day came before the undersigned, a Notary Public, within and for the County and State aforesaid, duly commissioned and acting, Scott E. Bennett, to me well known as the Director of Highways and Transportation, who stated that he had executed the foregoing Airspace Permit for and on behalf of the Arkansas State Highway Commission, for the consideration and purposes therein mentioned and set forth and was authorized so to act by proper resolution of the Commission in Minute Order No. 2012-008, dated the 8th day of February, 2012. WITNESS my hand and seal as such Notary Public on this day of , 2013. , Notary Public My Commission Expires: Page 9 of 10 ACKNOWLEDGMENT STATE OF ARKANSAS) )ss COUNTY OF CI‘` elvi .v9 BE IT REMEMBERED that on this day came before the undersigned, a Notary Public, duly commissioned, qualified and acting within and for said County and State aforesaid, the within named William H. Johnson and Philip Para, to me well personally known, who stated that they were the Mayor and the City Clerk, respectively, of the City of West Memphis, Arkansas, and were duly authorized in their capacities to execute the foregoing instrument for and in the name of and on the behalf of said City of West Memphis, Arkansas, and further stated and acknowledged that they had so signed, executed and delivered said foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and seal this t5 day of V4 ,'���',`` a ��<<r -�;,e V cm , Irjr/ r *.°P S 4 . % 4.A. - Jr t�. E OTA '� Notary Public My Commissi�n��cp�r � Cr ao1 (1 i� 1,. --,, lf ..%�,�Sao```, 4,,'rrnruri;s O Page 10 of 10 CERTIFICATE STATE OF ARKANSAS (SS COUNTY OF CRITTENDEN) The undersigned, City Clerk of the City of West Memphis, Arkansas, hereby certifies that the above and foregoing is a true and complete and correct copy of Resolution Number 2028: A Resolution to approve the airspace permit issued by the Arkansas State Highway Commission to the City of West Memphis, Arkansas, for part of Segment 4 and 5 of the Mainstreet to Mainstreet Multimodal Connector, and for other purposes IN WITNESS WHEREOF, I have hereunto set my hand as City Clerk of the City of West Memphis, Arkansas, and the Official Seal of said City, on this 15 day of July, 2013. TY I L -€t Y OF WEST MEMPHIS CRITTENDEN COUNTY, ARKANSAS