La. Admin. Code tit. 70, § II-1101 - Joint Use Agreements
A.
Elements of the Lease
1. At the initiation of
the lease, DOTD's real estate section will estimate the fair market lease value
of the property. That value will be utilized in determining the amount charged
as a rental fee. At the conclusion of a five-year term, the market value of the
leased property will be reassessed. If the lessee chooses not to renew the
lease and pay the revised fair market value as a fee, the lease shall
expire.
2. DOTD property that is
"excess," or that was expropriated through unfriendly negotiations will not be
eligible for lease. DOTD "excess" property shall be disposed of in accordance
with
R.S.
48:224 and EDSM Number I.1.1.10, and shall
not be leased.
3. Property that
bears improvements constructed with public funds will not be eligible for lease
for a period of 20 years from the date of completion of said
improvements.
4. Preference in use
of right-of-way is as follows:
a. highway
purposes;
b. drainage
purposes;
c. legal street
connections purposes;
d. legal
driveway connections purposes;
e.
utilities purposes;
f. joint use
(lease) purposes.
5.
Preference for availability of joint use leases shall be given to the following
entities, in the following order:
a.
governmental bodies using the property for the general public and generating no
revenue;
b. governmental
bodies;
c. the land owner from whom
the property was expropriated;
d.
adjacent land owners;
e. general
public.
6. Title and
control of the area of right-of-way involved will remain with DOTD.
7. Subleasing is prohibited without the prior
written consent of DOTD.
8. Use of
property shall be in accordance with local building and zoning ordinances
and/or codes.
9. DOTD may terminate
the lease agreement at any time and require lessee to vacate the premises and
remove all improvements. Improvements not removed by lessee within 30 days may
be removed by DOTD at lessee's expense.
10. The lease shall be subordinate to any
existing agreements between DOTD and other parties affecting the leased
property.
11. Illegal activities on
the premises conducted by lessee are prohibited and shall trigger automatic
termination of the lease.
12. All
heavy commercial activity and the serving of alcohol are prohibited on the
leased premises.
B.
Application Procedure
1. Parties interested in
leasing state right-of-way must contact the headquarter's utility and permit
engineer at the permit office of DOTD.
2. The applicant must submit, in writing to
the headquarter's utility and permit engineer, a proposal detailing the use of
the property including a location description. The headquarter's utility and
permit engineer will distribute copies of the proposal to the district office
and other appropriate parties within the department.
3. DOTD will investigate proposed highway
improvements in the area and the viability of leasing the property.
4. If a lease agreement is viable, then the
applicant must submit:
a. a layout map of the
requested area showing DOTD right-of-way, including a metes and bounds
description;
b. a written metes and
bounds description of the area labeled as "Exhibit A";
c. detailed plans showing any improvements to
be placed on the premises including structures, type of material used,
appearance, fences which may be required, and any other pertinent information,
labeled "Exhibit B";
d. vertical
clearance between area to be used and bottom of overhead structure.
5. DOTD's real estate section will
estimate the fair market lease value of the property.
6. If more than one party is interested in
leasing the same parcel of property:
a. DOTD
shall first attempt to facilitate a cooperative endeavor agreement between the
parties, so that the property can be shared;
b. if a cooperative endeavor is not possible,
then §1101. A.5 shall be utilized to select a lessee;
c. if two or more parties tie for top choice,
then DOTD shall initiate a bidding process as follows:
i. all parties will be informed of the bid
situation and given 30 days to prepare bids;
ii. DOTD shall designate a date to receive
sealed bids;
iii. the headquarter's
utility and permit engineer shall open all bids on the same day;
iv. bids more than 10 percent below the
estimated fair market value shall be rejected. All bids for uses that the
headquarter's utility and permit engineer deems prohibited, inappropriate, or
inconsistent with use of the property by DOTD shall be rejected. If any bids
remain, the lease shall be awarded to the highest bid. If no eligible bids
remain, then the bid process may be repeated. If there are still no eligible
bids, then all proposals shall be discarded. In the event of a tie, the tied
parties will be allowed to toss a coin to determine the winning
bidder.
7.
DOTD performs all required reviews of the request, including an environmental
assessment. The applicant may be required to submit corrected and/or additional
information.
8. Once the submittal
is complete and correct and the environmental clearance is issued, the request
is given final approval by the headquarter's utility and permit
engineer.
9. The request is then
submitted to the Federal Highway Administration (FHWA) for review and becomes
effective upon the concurrence of FHWA.
NOTE: FHWA concurrence is not required for some state routes.
C.
Improvements
1. No improvements or
alterations, including landscaping, shall be made upon the premises without
written approval of DOTD.
2. The
improvements and the property must be maintained by the lessee in good
condition. Maintenance must be accomplished so that there is no unreasonable
interference with the transportation facility.
3. All plans for construction of any
improvements must be reviewed and approved by DOTD. Preliminary plans must be
submitted with the initial application.
4. At the conclusion of the lease, all
improvements must be removed leaving the property in its original condition. In
special cases improvements may remain with written consent from DOTD, provided
there is no expense to DOTD.
D. Maintenance and Inspection
1. The lessee shall, at its sole expense,
keep and maintain the premises at all times in an orderly, clean, safe, and
sanitary condition.
2. If proper
maintenance is not performed, DOTD reserves the option to cancel the lease or
perform the maintenance and obtain reimbursement from the lessee.
3. The lessee shall maintain the premises at
the lessee's own expense, including all driveways, fences, and guardrails,
subject to the approval of DOTD. The lessee shall be liable for reimbursement
to DOTD for any damage to DOTD property.
4. On-premise signs, displays, or devices may
be authorized by DOTD, but shall be restricted to those indicating ownership
and type of activity being conducted in the facility, and shall be subject to
reasonable restrictions with respect to number, size, location, and
design.
5. Inspections of the
property may be performed by a DOTD representative to assure compliance with
all the rules set forth in the lease. DOTD specifically reserves the right of
entry by any authorized employee, contractor, or agent of DOTD for the purpose
of inspecting said premises, or the doing of any and all acts necessary on said
premises in connection with protection, maintenance, painting, and operation of
structures and appurtenances. DOTD reserves the further right, at its
discretion, to immediate entry upon the premises and to take immediate
possession of the same only in case of any national or other emergency and for
the protection of said structures; and, during said period, lessee shall be
relieved from the performance of all conditions of the agreement.
6. All structures shall be of fire resistant
construction as defined by the applicable building codes, and will not be
utilized for the manufacture of flammable material, or for the storage of
materials or other purposes deemed by the DOTD or Federal Highway
Administration to be a potential fire or other hazard to the highway.
7. The lessee shall secure all necessary
permits required in connection with operations on the premises and shall comply
with all federal, state, and local statutes, ordinances, or regulations which
may affect the lessee's use of the premises.
E. Liability of Lessee
1. The lessee shall occupy and use the
property at its own expense, and shall hold DOTD, its officers, agents, and
employees, harmless from any and all claims for damage to property, or injury
to, or death of, any person entering upon same with lessee's consent,
expressed, or implied.
2. The
lessee shall carry liability insurance to indemnify claims resulting from
accidents and property damage, which coverage shall be extended to include the
facilities authorized in this agreement, to provide for the payment of any
damages occurring to the highway facility and to the public for personal
injury, loss of life and property damage resulting from lessee's use of the
premises. DOTD shall be named as an additional insured and proof of such
required insurance shall be provided to DOTD prior to occupancy. The insurance
company and lessee shall notify DOTD, in writing, at least 30 days prior to
cancellation of changes affecting the required insurance coverage.
F. Credit Check and Security
Deposit
1. DOTD may require a credit
check.
2. A security deposit may be
required at the discretion of the DOTD.
G. Payment
1. Payment will be due on the first day of
every year. If the lease begins in the middle of the year, the rent will be
prorated for that year according to the number of days remaining in that
year.
2. At the discretion of DOTD,
payment may be due on a monthly basis.
3. Payments must be made by check, money
order, or certified check.
4. If a
lessee submits a bad check for payment, he will no longer be allowed to pay
with personal checks. Future payments must be made by certified checks or money
orders.
H. Governmental
Entities
1. The fees may be waived for
governmental entities if there is no revenue derived by the use of the
property.
2. If the revenue
generated is not sufficient to cover operating expenses and the joint use fee,
the rent may be reduced to 10 percent of the gross revenue.
Notes
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