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July 20, 2010 Agenda
AGENDA CITY OF DENTON CITY COUNCIL July 20, 2010 After determining that a quorum is present, the City Council of the City of Denton, Texas will convene in a Work Session on Tuesday, July 20, 2010 at 3:30 p.m. in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: WORK SESSION 1. Requests for clarification of agenda items listed on the agenda for July 20, 2010. 2. Receive a report, hold a discussion and give staff direction regarding nominations to the City's Boards and Commissions. 3. Receive a report, hold a discussion, and give staff direction concerning the development of the FY 2010-11 Proposed Budget and Financial Forecast. 4. Receive a report, hold a discussion, and give staff direction concerning proposed amendments to: 1. Subchapter 3 of the Denton Development Code (DDC) regarding authority given to the Zoning Board of Adjustment; 2. Subchapter 16 of the DDC regarding gas well development platting; 3. Subchapter 22 of the DDC regarding gas well drilling and production; 4. Subchapter 23 - Definitions - of the DDC; and 5. the schedule of fees contained in Ordinances 2005-237, and 2009-098 (2006 City Fire Code) pertaining to gas well drilling and production within the City limits and the Extra Territorial Jurisdiction (D(A10-0003). Following the completion of the Work Session, the City Council will convene in a Closed Meeting to consider specific items when these items are listed below under the Closed Meeting section of this agenda. When items for consideration are not listed under the Closed Meeting section of the agenda, the City Council will not conduct a Closed Meeting and will convene at the time listed below for its regular or special called meeting. The City Council reserves the right to adjourn into a Closed Meeting on any item on its Open Meeting agenda consistent with Chapter 551 of the TEXAS GOVERNMENT CODE, as amended, as set forth below. CLOSED MEETING 1. Closed Meeting: A. Consultation with Attorney - Under Texas Government Code Section 551.071. 1. Consult with City's attorneys regarding: (1) legal issues associated with the regulation of gas well drilling and production within the City Limits and the extraterritorial jurisdiction, including Constitutional limitations, statutory limitations upon municipal regulatory authority and statutory preemption of municipal regulatory authority; (2) Federal preemption (and limitations on that preemption) of certain municipal regulations relating to the compression and transmission of natural gas, and the location of gas pipelines; (3) analysis of risks and enforceability of such regulations, City of Denton City Council Agenda July 20, 2010 Page 2 including impacts and strategies associated with local permit protections; (4) legal limitations associated with the setting of fees; and (5) other legal issues associated with Regular Session Item 4.13. 2. Consultation with the City's attorneys regarding legal issues associated with board and commission members and conflicts of interest and the release of confidential information where public discussion associated with these legal matters would clearly conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. B. Deliberations regarding Personnel Matters - Under Texas Government Code Section 551.074 1. Deliberate and discuss the appointment, evaluation, reassignment, duties, procedures, discipline or removal and/or hear a complaint or charge involving officers of the City Council (Civil Service Commission, Health and Building Standards Commission, Denton Housing Authority, Historic Landmark Commission, Planning and Zoning Commission, Zoning Board of Adjustment). ANY FINAL ACTION, DECISION, OR VOTE ON A MATTER DELIBERATED IN A CLOSED MEETING WILL ONLY BE TAKEN IN AN OPEN MEETING THAT IS HELD IN COMPLIANCE WITH TEXAS GOVERNMENT CODE, CHAPTER 551, EXCEPT TO THE EXTENT SUCH FINAL ACTION, DECISION, OR VOTE IS TAKEN IN THE CLOSED MEETING IN ACCORDANCE WITH THE PROVISIONS OF §551.086 OF THE TEXAS GOVERNMENT CODE (THE `PUBLIC POWER EXCEPTION-). THE CITY COUNCIL RESERVES THE RIGHT TO ADJOURN INTO A CLOSED MEETING OR EXECUTIVE SESSION AS AUTHORIZED BY TEX. GOVT. CODE, §551.001, ET SE Q. (THE TEXAS OPEN MEETINGS ACT) ON ANY ITEM ON ITS OPEN MEETING AGENDA OR TO RECONVENE IN A CONTINUATION OF THE CLOSED MEETING ON THE CLOSED MEETING ITEMS NOTED ABOVE, IN ACCORDANCE WITH THE TEXAS OPEN MEETINGS ACT, INCLUDING, WITHOUT LIMITATION §551.071-551.086 OF THE TEXAS OPEN MEETINGS ACT. Regular Meeting of the City of Denton City Council at 6:30 p.m. in the Council Chambers at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: REGULAR MEETING 1. PLEDGE OF ALLEGIANCE A. U. S. Flag B. Texas Flag "Honor the Texas Flag - I pledge allegiance to thee, Texas, one state under God, one and indivisible." 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards City of Denton City Council Agenda July 20, 2010 Page 3 3. CONSENT AGENDA Each of these items is recommended by the Staff and approval thereof will be strictly on the basis of the Staff recommendations. Approval of the Consent Agenda authorizes the City Manager or his designee to implement each item in accordance with the Staff recommendations. The City Council has received background information and has had an opportunity to raise questions regarding these items prior to consideration. Citizens may speak on items listed on the Consent Agenda. A Request to Speak Card should be completed and returned to the City Secretary before Council considers the Consent Agenda. Citizen comments on Consent Agenda items are limited to three minutes. Listed below are bids, purchase orders, contracts, and other items to be approved under the Consent Agenda (Agenda Items A - X). This listing is provided on the Consent Agenda to allow Council Members to discuss or withdraw an item prior to approval of the Consent Agenda. If no items are pulled, Consent Agenda Items A - X below will be approved with one motion. If items are pulled for separate discussion, they may be considered as the first items following approval of the Consent Agenda. A. Consider and confirm the re-appointment by the City Manager of Darhyl Ramsey to the Civil Service Commission. B. Consider approval of a resolution of the City of Denton, Texas approving a revised city policy regulating Medical Examinations for the City of Denton employees; and declaring an effective date. C. Consider approval of a resolution of the City of Denton, Texas approving a revised city policy regulating Payroll Deductions for the City of Denton employees; and declaring an effective date. D. Consider approval of a resolution of the City of Denton, Texas approving a revised city policy regulating Overtime for the City of Denton employees; and declaring an effective date. E. Consider approval of a resolution of the City of Denton, Texas approving a revised city policy regulating Meal and Break Times for the City of Denton employees; and declaring an effective date. F. Consider approval of a resolution of the City of Denton, Texas approving a revised city policy regulating Solicitation by and to City of Denton employees; and declaring an effective date. G. Consider adoption of an ordinance of the City of Denton authorizing and ratifying an agreement between the City of Denton, Texas and the Kiwanis for the purpose of hosting the Fourth of July Fireworks Show; providing for the expenditure of funds; and providing for an effective date. ($1,400) H. Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and the Friends of the Denton Public Libraries Organization for supplemental funding for the adult literacy program; providing for the expenditure of funds; and providing for an effective date. ($550) City of Denton City Council Agenda July 20, 2010 Page 4 L Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and Fred Moore Day Nursery School; providing for the expenditure of funds; and providing for an effective date. ($750) J. Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and Retired and Senior Volunteer Program to assist with funding of postage; providing for the expenditure of funds; and providing for an effective date. ($200) K. Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and Court Appointed Special Advocates to assist with funding of utilities, phone cost, local travel for child visits and/or office supplies; providing for the expenditure of funds; and providing for an effective date. ($600) L. Consider adoption of an ordinance authorizing the City Manager to execute an Interlocal Cooperative Purchasing Program Agreement with the City of Mesquite, Texas under section 271.102 of the Local Government Code, to authorize participation in various City of Mesquite contracts for the purchase of various goods and services; authorizing the expenditure of funds therefor; and declaring an effective date (File 4509 - Interlocal Agreement with City of Mesquite). M. Consider adoption of an ordinance accepting competitive bids and awarding a public works contract for the constriction of the South Peak Flow Pump Station at the Pecan Creek Water Reclamation Plant; providing for the expenditure of funds therefor; and providing an effective date (Bid 4501 - Pecan Creek Water Reclamation Plant Peak Flow Pump Station awarded to the lowest responsible bidder meeting specification, Crescent Constrictors, Inc. in the amount of $803,000). The Public Utilities Board recommends approval (4-0). N. Consider adoption of an ordinance rejecting any and all sealed proposals for a radio/telephone recorder system (including installation) for the City of Denton's Public Safety Departments (RFSP 4495); and providing an effective date. 0. Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of additional radio communications equipment for the McKenna Park and Denton County Emergency Operations Communication sites which is available from only one source in accordance with the pertinent provisions of Chapter 252 of the Texas Local Government Code exempting such purchases from the requirements of competitive bidding; and providing an effective date (File 4516 - Purchase of Communications Equipment for 2 Channel Expansion awarded to Motorola, Inc. in the amount of $169,642). The Public Utilities Board recommends approval (7-0). City of Denton City Council Agenda July 20, 2010 Page 5 P. Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of traffic signal controllers and video equipment for the City of Denton Traffic Department, which is available from only one source in accordance with the pertinent provisions of Chapter 252 of the Texas Local Government Code exempting such purchases from the requirements of competitive bidding; and providing an effective date (File 4527 - Purchase of Traffic Controllers and Video Equipment awarded to Paradigm Traffic Systems, Inc. in the estimated amount of $350,000). Q. Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of Retaining Wall Materials for constriction of a Screening Wall at Phase 3, Cell A at the City of Denton Landfill which is available from only one source in accordance with the pertinent provisions of Chapter 252 of the Texas Local Government Code exempting such purchases from the requirements of competitive bidding; and providing an effective date (File 4532 - Purchase of Retaining Wall Materials for City of Denton Landfill awarded to Stone Strong, LLC in the amount of $87,175.00). The Public Utilities Board recommends approval (5-0). R. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager or his designee, to enter into an Interlocal Agreement with Denton County for the County to provide property tax billing and collection services for the City of Denton; providing a savings clause and providing an effective date. S. Consider adoption of an ordinance approving an assignment of a leasehold interest in an airport lease agreement at Denton Municipal Airport from Robby Ritchey to Alan Ritchey, Inc. located at 4849 Spartan, Denton, Texas at the Denton Municipal Airport and providing an effective date. The Airport Advisory Board recommends approval (7-0). T. Consider approval of a resolution of the City Council of the City of Denton, Texas appointing a primary and an alternate member as an official voting representative to the Regional Transportation Council (RTC) of the North Central Texas Council of Governments; and providing an effective date. U. Consider adoption of an ordinance of the City of Denton, Texas authorizing the approval of a first amendment to professional services agreement between Chaing, Patel, and Yerby, Inc. (CP&Y) and the City of Denton, Texas, expanding the scope of services previously defined in the professional services agreement, which amendment allows CP&Y to provide engineering consulting services related to the landfill expansion to include, 1) hydrologic and hydraulic evaluations, 2) the preliminary sizing and location of a 4.5 million gallon flow equalization basin, and 3) analysis of the floodplain/floodway impacts of extending a landfill retaining wall and berm along the creek side of the flow equalization basin downstream to the headworks of the Wastewater Treatment Plant for an additional amount not-to-exceed $41,050; providing for the expenditure of funds therefor; and providing an effective date ($41,050 further professional engineering services, totaling $104,050 when aggregated with the previous professional services agreement). The Public Utility Board recommends approval (7-0). City of Denton City Council Agenda July 20, 2010 Page 6 V. Consider adoption of an ordinance accepting sealed proposals and awarding agreements for the purchase of services relating to a Utility Meter Data Management Solution related to an automatic meter reading infrastructure system for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date. (RFSP 44448 - request for sealed proposals for Utility Meter Data Management Solution in an amount not to exceed $395,030.). The Public Utilities Board recommends approval (5-0). W. Consider adoption of an ordinance accepting sealed proposals and awarding an agreement for the purchase of an Advanced Metering Infrastructure System for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date. (RFSP 44485 - Advanced Metering Infrastructure System awarded to Trilliant Networks, Inc. in a five-year amount of not-to-exceed $1,391,307.04). The Public Utilities Board recommends approval (5-0). X. Consider approval of the minutes of June 8 and June 15, 2010. 4. PUBLIC HEARINGS A. Continue a public hearing and consider adoption of an ordinance of the City of Denton, Texas, providing for a zoning change from a Neighborhood Residential 3 (NR-3) zoning district classification and use designation to a Neighborhood Residential Mixed Use (NRMU) zoning district classification and use designation on tracts 256, 257, 258, 260 and 261 of the E. Puchalski survey, with an overlay district on those same tracts, plus tract 263, containing additional restrictions as noted; the area for the zoning change encompasses approximately 4.678 acres of land located at the northeast corner of North Bonnie Brae Street and West Oak Street, in the City of Denton, Denton County, Texas. The Planning and Zoning Commission recommended approval of the rezoning of six (6) of the seven lots from Neighborhood Residential 3 (NR-4) to Neighborhood Residential Mixed Use (NRMU) subject to overlay conditions, as provided in Exhibit 8 (5-1). B. Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas concerning proposed amendments to: 1. Subchapter 3 of the Denton Development Code (DDC) regarding authority given to the Zoning Board of Adjustment; 2. Subchapter 16 of the DDC regarding gas well development platting; 3. Subchapter 22 of the DDC regarding gas well drilling and production; 4. Subchapter 23 - Definitions - of the DDC; 5. the schedule of fees contained in Ordinances 2005-237, and 2009-098 (2006 City Fire Code) pertaining to gas well drilling and production within the City limits and the Extra Territorial Jurisdiction; and providing for a penalty in the maximum amount of $2,000.00 for violations, thereof, severability and an effective date. (DCA10-0003) The Planning and Zoning Commission recommendation is pending the July 14, 2010 meeting. City of Denton City Council Agenda July 20, 2010 Page 7 C. Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, regarding the following matters, as they relate to the Fry Street Overlay District, Section 35.7.5 of the Denton Development Code (DDC): 1. To update DDC references in the text of the overlay district (DCA10-0004); and 2. To create a subarea of approximately 4.275 acres for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets, with an associated set of regulations specific to the proposed mixed use development (Z 10-0009). The Fry Street Overlay District is an area that is comprised of approximately 12.42 acres on three city blocks generally located in the area bound by Oak Street to the north, Welch Street to the east, Mulberry and Hickory Streets to the south, and Avenue A and Avenue B to the west. The Planning and Zoning Commission recommended approval (6-1). 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. In accordance with HUD 24 CFR Section 570.611 (d) (1)(i); receive a statement of disclosure of Community Development Coordinator Luisa Rodriguez-Garcia's conflict of interest in the Community Development Block Grant Program through her spouse's position as Executive Director of the Denton City County Day School, a non-profit organization that receives CDBG funding. B. Consider appointments to the following boards and commissions: 1. Airport Advisory Board 2. Animal Shelter Advisory Committee 3. Community Development Advisory Committee 4. Health & Building Standards Commission 5. Historic Landmark Commission 6. Human Services Advisory Committee 7. Library Board 8. Parks, Recreation and Beautification Board 9. Planning and Zoning Commission 10. Public Art Committee 11. Public Utilities Board 12. Traffic Safety Commission 13. Zoning Board of Adjustment C. Consider nominations/appointments to the Economic Development Partnership Board. D. Citizen Reports 1. Review of procedures for addressing the City Council. 2. Receive citizen reports from the following: a). Bob Clifton regarding our City Charter Initiative, Referendum and Recall. City of Denton City Council Agenda July 20, 2010 Page 8 b). Kathryn Newton regarding cyclist and pedestrian safety and rights. c). Willie Hudspeth regarding concerns of Southeast Denton. d). Lanisha Hudspeth regarding concerns of Southeast Denton. e). Jordan Hudspeth regarding concerns of Southeast Denton. f). Hagar Hudspeth regarding concerns of Southeast Denton. E. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. F. Possible Continuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. G. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. CERTIFICATE I certify that the above notice of meeting was posted on the bulletin board at the City- Hall of the City- of Denton, Texas, on the day of , 2010 at o'clock (a.m.) (p.m.) CITY SECRETARY NOTE: THE CITY OF DENTON CITY COUNCIL CHAMBERS IS ACCESSIBLE IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT. THE CITY WILL PROVIDE SIGN LANGUAGE INTERPRETERS FOR THE HEARING IMPAIRED IF REQUESTED AT LEAST 48 HOURS IN ADVANCE OF THE SCHEDULED MEETING. PLEASE CALL THE CITY SECRETARY'S OFFICE AT 349-8309 OR USE TELECOMMUNICATIONS DEVICES FOR THE DEAF (TDD) BY CALLING 1-800-RELAY-TX SO THAT A SIGN LANGUAGE INTERPRETER CAN BE SCHEDULED THROUGH THE CITY SECRETARY'S OFFICE. AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: City Manager's Office CM: George Campbell, City Manager SUBJECT Receive a report, hold a discussion and give staff direction regarding nominations to the City's Boards and Commissions. BACKGROUND Attached are the nominations Council has submitted for boards and commissions positions. Any nominations made during the Work Session will be added to the list prior to consideration. Council will be voting on approval of these nominations at the regular meeting. If you require any further information, please let me know. Respectfully submitted: Jennifer Walters City Secretary S:ACity- Secretan-Toards & Comm\Agenda Info Sheet for Nominations WS.doc BOARD AND COMMISSION NOMINATIONS Board Council Member Nomination Airport Advisory Board Engelbrecht Watts Charles Brown (R) Kamp Burroughs Animal Shelter Advisory Committee Heggins Gregory Kamp Kin Community Development Advisory Cmte. Engelbrecht Kamp Burroughs All All Health & Building Standards Commission Gregory Watts Rosanne Ciccia (N) All All Economic Development Partnership Bd. Nominating Cmte. Historic Landmark Commission Gregory Burroughs All Human Services Advisory Cmte. Gregory Watts All All Library Board Engelbrecht Watts Lauren Womack (N) Burroughs Parks, Recreation & Beautification Board Gregory Engelbrecht Watts Carol Brantley (R) Kam Planning and Zoning Commission Engelbrecht Kamp Kin Public Art Committee Gregory Engelbrecht Watts Carol Collins (R) Burroughs R - Reappointment N - New Nomination BOARD AND COMMISSION NOMINATIONS Board Council Member Nomination Public Utilities Board Watts Randy Robinson (R) Traffic Safety Commission Heggins Gregory King All All Zoning Board of Adjustment Gregory Kam R - Reappointment N - New Nomination This page left blank intentionally . AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Finance All ACM: Jon Fortune SUBJECT Receive a report, hold a discussion, and give staff direction concerning the development of the FY 2010-11 Proposed Budget and Financial Forecast. BACKGROUND The purpose of this Work Session item is to provide the City Council with some additional information regarding the development of the FY 2010-11 Proposed Budget and Five Year Financial Forecast. During this meeting, staff will provide additional details on strategies that are being contemplated to resolve the budget issues that were previously discussed with the City Council. During the previous budget discussion on June 15, 2010, the City Council asked a number of questions and requested a variety of information concerning the budget materials that were presented. In response to the questions, staff has prepared a memorandum that summarizes the questions we received and the answers that we have been able to compile. EXHIBITS Memo with Responses to Questions from June 15th Budget Presentation Respectfully Submitted By: Bryan Langley Director of Finance DENTON DATE: July 16, 2010 Finance Department ' 275 E. ~VcKhtncy ~ Denton, T_1 76207 (940) 349-822; y DFIV.31etro (972) 434-2259 Fax (940) 349-7206 MEMORANDUM TO: Honorable Mayor and Members of the City Council FROM: Bryan Langley, Director of Finance ~_8z SUBJECT: City Council Preliminary Budget Work Session Questions and Responses Information regarding the preliminary 2010-11 Proposed Budget and Five Year Forecast was presented to the City Council on June 15. At the time of the presentation, the City Council had a number of questions regarding the materials that were presented. Below is a summary of the questions received and the answers that we have been able to compile. Q1: What are the limitations for using the Airport Gas Well Fund for Airport operation expenses? What is the status of the Airport business plan? A: The Federal Aviation Administration (FAA) restricts the expenditure of gas well funds to only bona fide airport expenses (salaries, O&M items, capital etc). The current limitation to spend this on one-time capital or grant leveraged items is a policy established by Council in the 2002-2004 time frame and embraced by both the Airport Board and Airport staff. The Airport Advisory Board has received a copy of the Business Plan and will be discussing their schedule for review, inviting input from Airport tenants and presenting their recommendations to the City Council. The City Council will be briefed on the Business Plan in a work session on August 10, 2010, and the Airport Board is expected to complete their review of the plan in September. Q2: Provide detail regarding the dollar value of items considered for reductions and/or fee increases. A: The below detail is provided on the items discussed during the presentation on June 15. Item Discussed Financial Impact Transfer Keep Denton Beautiful Program from $263,956 savings to the General Fund; General Fund to Solid Waste Department. $359,000 cost to the Solid Waste Fund. Transfer savings associated with CO bond $180,000 revenue increase in General Fund. issuance from utility funds to the General Fund. Consider overtime reduction strategies in all Reducing eligible General Fund overtime by General Fund departments including public 1/3 (10% in Police) would generate $446,507 safety operations. in savings. Delay of Public Safety Training Facility. $500,000 in operating General Fund savings beginning in FY 2012-13. Approximately $11.1 million in certificates of obligation will also not be issued to constrict this facility in FY 2010-11. Reductions to Travel and Training Budgets. $300,919 in savings to the General Fund. Eliminate City Council Contingency Funds. $17,500 in savings to the General Fund. Re-Evaluate planned compensation increase. $588,475 in savings to the General Fund if the pay increase is eliminated. Create Airport Enterprise Fund. $262,000 in additional revenue for the General Fund from franchise fees, Return on Investment (ROI) charges, and indirect cost reimbursements. Transfer cost of some positions to CIP budget. $108,653 in General Fund cost savings for two Parks positions. Elimination of Downtown Incentive Grant. $50,000 in General Fund savings. Delay increasing Over 65 property tax $150,000 in additional General Fund revenue. exemption from $30,000 to $35,000. Increase non-resident Library fees. The amount of this impact is still under review. Reduce Chamber of Commerce contribution $25,000 in reduced General Fund costs. Consider higher reimbursement for School See below for more information. Resource Officers. Transfer available balance from Internal Approximately $2.6 million in Non-Airport Service Funds and Non-Airport Gas Well Gas Well funds are expected to be available by funds into the General Fund. the end of FY 2009-10. The available balance remaining in the Internal Service Funds is still under review. Explore feasibility of paying for Urban $78,514 in General Fund savings. See below Forester out of Tree Mitigation Fund. for more information. Q3: Describe how the Downtown Incentive Grant benefits the City. A: The City Council approved the Downtown Incentive Reimbursement Grant Program on April 3, 2007, and allocated $50,000 each year to fund the program for the last three fiscal years. The grant funds are a 50:50 match and are reimbursed upon receiving proof of expenditure and completion of work. Redevelopment activities that are eligible for grant funds include facade rehabilitation, new awnings and signs, impact fee reimbursement, and utility upgrades. An applicant is defined as an eligible property within the Downtown Central Business District. A single owner of multiple properties may apply for grant funds for each property, but may not receive more than $50,000 per property. Projects are considered based on: • Compliance with certain building standards. • Design quality. • Compatibility of design in relation to other buildings. • Project compatibility with streetscape objectives. • Project compatibility in relation to Downtown Development goals. • Proximity to Courthouse-on-the-Square. In addition to being reviewed by City staff, projects are also examined by the Downtown Task Force and the Economic Development Partnership Board. Projects are then recommended to the City Council for approval. Q4: Is the use of School Resource Officers (SROs) a common practice in other municipalities? What are some of the reimbursement levels in other communities? A: School Resource Officers (SROs) from the Denton Police Department, Denton County Sheriff's Department, and the Corinth Police Department are currently assigned to schools in the Denton Independent School District (DISD). DISD has different funding agreements with each agency. The Corinth Police Department receives $35,000 (approximately one-half ('/2) of an officer's salary) for the full-time SRO assigned to Crownover Middle School. DISD pays 100% of the salary, benefits, training, and equipment of the Denton County Sheriffs Deputy assigned to Harpool Middle School. DISD pays the City of Denton one-half ('/2) of the salary and benefits of the one SRO assigned to the Davis Alternative School, but the City of Denton funds seven SRO positions. Because SRO programs are mutually beneficial to school districts and police departments, program costs are usually shared between them. The following are examples of SRO staffing and funding in other cities in the area: 3 COMPARISON OF SRO STAFFING AND FUNDING IN AREA CITIES Lewisville Police Department (PD) • Lewisville PD has four (4) SROs. • Lewisville ISD pays 50% and the city pays 50% of the officer's base salary. The city pays for the vehicle, equipment and benefits. • Two (2) officers are assigned to one high school. • Currently considering adding an additional SRO for the high schools. • Two (2) officers are assigned to the middle schools. • Middle school SROs rove between multiple schools. Carrollton Police Department • Carrolton PD has seven (7) total SROs. • Five (5) are in Carrolton- Farmers Branch ISD and two (2) are in Lewisville ISD. • Both School Districts pay 50% of the officer's salary and benefits. • SROs at the high schools cover only that high school. The officers at the middle schools cover multiple middle schools or alternative campuses. Each SRO also covers an elementary campus. McKinney Police Department • McKinney PD has a total of seven (7) SROs. Six (6) SROs are assigned to the McKinney ISD High Schools and one (1) SRO is assigned to the one Frisco ISD Middle School that is within McKinney city limits. The officer in Frisco ISD is assigned to one middle school and then covers the three elementary schools that are in McKinney. • At this time, McKinney PD pays 100% of the officers that are assigned to the McKinney ISD schools. Frisco ISD pays 50% of the one officer's salary, benefits, equipment and training. • McKinney ISD will start paying 25% of the officer's salary, benefits, equipment and training next year and then 50% the following year for the officers in McKinney ISD. 4 • The officers in McKinney ISD are assigned to the high schools. McKinney PD formerly had officers in the middle schools but recently pulled them out of the middle schools to increase patrol staffing levels. Frisco Police Department • Frisco PD has a total of 16 officers assigned as SROs. • Two (2) of the 16 SROs are sergeants. • Frisco PD SROs are assigned to six (6) high schools and ten (10) middle schools. • Frisco PD plans to add additional SROs next year. • Frisco ISD pays half of the officers and sergeant's salaries, benefits, and school related training. Corinth Police Department • Corinth PD has two (2) SROs; one at Crownover Middle School in DISD, and one at Lake Dallas High in Lake Dallas ISD. • Corinth receives $35,000 for each of the two (2) SROs which amounts to about 50% of their salaries. • The SRO at Lake Dallas High School just covers that campus. The SRO at Crownover Middle School also covers a nearby elementary school. Denton County Sheriffs Office (SO) • Denton County SO has two SROs. One SRO is assigned to Northwest ISD High School and one to Denton ISD Harpool Middle School. • Denton County SO also provides an Absent Student Assistant Program (ASAP) Officer to Northwest ISD. • Both Denton ISD and Northwest ISD pay 100% of the officers' salaries, benefits, equipment (car, radio, computer cell phone etc.) and any budgeted training for the officers. 5 Q5: Were there any grants received to offset the cost of the urban forester position? What does the ordinance for the Tree Mitigation Fund outline for approved expenditures? A: The Planning Department received a grant in July 2007 from the Texas Forest Service to hire an urban forestry consultant, responsible for reviewing and revising the tree preservation and mitigation code regulations and to develop an Urban Forest Master Plan that covers planting, preservation, and care of trees on public and private property. This grant was $15,000. Another grant, also provided by the Texas Forest Service, could be used to hire an urban forester or city arborist. The City did not apply for this grant per Council direction. According to the City of Denton Tree Mitigation Fund ordinance, the approved expenditure of tree mitigation funds, "...shall be used to purchase, plant and maintain trees on public property, to preserve wooded property that remains in a naturalistic state in perpetuity, to perform and maintain a city-wide tree inventory and to educate citizens and developers on the benefits and value of trees." Under this ordinance, expenditures for personnel would not be a permitted use of the funds. The City Council could explore amendments to the current ordinance to provide for expenditures for personnel dedicated solely to this operation. Q6: Provide a breakout of revenues and expenditures for the Natatorium and Water Park. How do the costs compare to other Park services, such as operating expenses for the ball fields and recreation centers? A: Revenue and expenditure detail for both the Natatorium and Water Park are provided on the table below by fiscal year. Revenues 2006-07 2007-08 2008-09 2009-10 Budget Natatorium* $741,225 $692,532 $704,594 $791,292 Water Park $630,131 $716,683 $512,986 $726,480 Total $1,371,356 $1,257,802 $1,173,571 $1,517,772 Expenditures 2006-07 2007-08 2008-09 2009-10 Budget Natatorium $1,120,531 $1,165,450 $1,247,898 $1,314,204 Water Park $567,367 $604,320 $591,418 $667,315 Total $1,687,898 $1,769,770 $1,839,316 $1,981,519 Net Cost $316,542 $511,968 $665,745 $463,747 *Includes DISD reimbursement 6 Using the above information for FY 2009-10, the Natatorium and Water Park collectively recover approximately 76.6% of their cost (60.2% for Natatorium and 108.9% for the Water Park). Comparatively, other recreation operating cost recovery ratios are as follows for FY 2007-08: Sport Revenues Expenditures Percent Recover Softball $9,497 $377,479 2.5% Soccer $42,659 $321,966 13.2% Football $4,375 $138,779 3.2% Baseball $20,853 $445,481 4.7% Civic Center Pool $42,606 $105,756 403% Denia $9,350 $201,765 4.6% Senior Center $21,366 $199,941 10.7% MLK $30,033 $183,342 16.4% North Lakes $8,242 $246,886 Q7: What types of savings can be realized for reducing operating hours by 10-15% for the libraries and recreation centers? A: Staff is continuing to research this savings and will be provided to you under separate cover. Q8: Provide additional detail on the Downtown Implementation Plan. A: A consultant is currently completing the plan final document and staff is currently reviewing it. The most recent schedule is as follows: • July 8, 2010 - Plan will go to the Downtown Task Force • July 14, 2010 - Plan will be presented to the Planning and Zoning Commission at a work session • July 28, 2010 - Plan will be presented at a Planning and Zoning Commission public hearing. • August 3, 2010 - Plan will be presented to the City Council at a work session. • August 17, 2010 - Plan will be presented to City Council at a public hearing. Q9: How many walk-in customers are serviced in the Customer Service department from 8:00 a.m. - 5:00 p.m., and 5:00 - 7:00 p.m. during the weekday? Also, how many customers on average are serviced on Saturdays? A: The current walk-in hours in the Customer Service lobby are Monday-Friday, 8:00 a.m. to 7:00 p.m. and Saturday from 10:00 a.m. to 3:00 p.m. 7 Average activity from October to May of this fiscal year indicates walls-up activity of 58 customers per hour during the hours of 8:00 a.m.-5:00 p.m. Monday-Friday. From 5:00- 7:00 p.m., an average of 32 customers per hour are assisted. On Saturdays, an average of 26 customers per hour are assisted. Q10: What are the cost increase proposals for solid waste refuse and recycling cart services? A: The proposed refuse cart and recycling services monthly rates are provided in the below chart. Service Current Rate Proposed Rate Variance Large Cart $18.75 $21.00 $2.25 Medium Cart $1735 $18.65 $1.30 Small Cart $15.50 $16.45 $1.15 Curbside Recycling $430 $5.05 $0.75 Multifamily Recycling $1.75 $2.25 $0.50 Q11: Provide the City Council with information regarding the preliminary appraisal values and final certified appraisal values. A: The latest preliminary values were forwarded to the City Council on July 19th. Once the certified values are received on July 23rd, staff will forward this information to the City Council. 8 This page left blank intentionally . AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Planning and Development ACM: Fred Greene SUBJECT: -DCA10-0003 (Gas Well Ordinance) Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas amending: (1) Subchapter 23 - Definitions - of the Denton Development Code (DDC); (2) Subchapter 22 of the DDC regarding gas well drilling and production; (3) Subchapter 16 of the DDC regarding gas well development plat; (4) Subchapter 3 of the DDC regarding authority given to the Zoning Board of Adjustment; and (5) The schedule of fees contained in Ordinances 2005-237, and 2009-098 (2006 City Fire Code), pertaining to gas well drilling and production within the City limits and the Extraterritorial Jurisdiction; providing for severability, and providing an effective date (DCA10-0003). The Planning and Zoning Commission recommended approval of this request (5-2). BACKGROUND: In prior meetings, staff presented the findings that resulted from the research and analysis of gas well drilling and production ordinances from: Ft. Worth, Lewisville, Arlington, Weatherford, Corinth, Roanoke, and Flower Mound. The information in the fee comparison demonstrated that Denton's fees were extremely low in contrast with the other cities. Subsequently, staff met and determined that due to the magnitude and complexity of the topic, it would be best to approach the task in two (2) phases. It was determined that the first phase of the process would involve an initial amendment to the ordinance to address: (1) a revised Fee Schedule; (2) revised noise levels; (3) increased separation distance requirement between gas wells and "Protected Uses,"; (4) increased minimum screening requirement between gas wells and protected uses; (5) amended language governing Gas Well Development Plats and, Gas Well Permits; and to establish the requirement for Gas Well Development Site Plans for gas well drilling and production within the City. On July 15, 2010, the Planning and Zoning Commission conducted a public hearing on the proposed amendment, and recommended approval, noting four areas of concern for consideration by Council: (1) a desire to remove consideration of variances by the Zoning Board of Adjustment; (2) a desire to limit the minimum separation distance that may be approved by waiver or variance, to no less than 500'; (3) a desire to limit adjustment to noise levels to daytime hours only; and (4) directed staff to re-review the proposal to reduce the duration of. (i) gas well plats in the ETJ from 2 years to 1 year from the date of approval; and (ii) gas well permits from 1 year to 6 months with City limits. DISCUSSION: The focus of this report is to present staffs recommendations regarding the subject matter enumerated under Phase I. L Gas and Oil Drilling and Production Permit Fees: Based on a recent cost-of-service analysis conducted by staff, it is determined that the gas well drilling and production fees that were established in 2005 are inadequate to cover the cost to provide these services, as shown below. Expenditure Revenue Activities (cost-to-serve) (fees) Net EIISTING FEES Gas \Vell Dev elo pment Plat $4.0-10 $260=` Gas Nell SUP $12,435 $2,150'` i Gas Well Development Plat $4,930 $5,000 $71 Gas Well SUP $12,4315 $12,500 $67 *Based on a 10-acre site In addition, a fee comparison of eight (8) cities within the Metroplex (including Denton) demonstrated that Denton's fees are extremely low in comparison with the other cities, and that Denton is not assessing several relevant fees. Prior to April 2007, the City had a Gas Well Drilling and Production Coordinator who was responsible for managing, coordinating, and conducting field inspections of gas well drilling and production within the City and the ETJ. However, in April 2007, the position was vacated. According to information obtained from the City's Geographic Information System (GIS), there are currently two hundred and six (206) gas wells within the City (including one (1) oil well) and another one thousand and forty five (1,045) wells in the ETJ, totaling one thousand, two hundred and fifty one (1,251) wells that are under the City's jurisdiction. This does not take into account the additional gas wells that were absorbed into the City and the ETJ as a result of the recent annexations. Staff has evaluated the City's recordation, management, inspection, and review of gas well drilling and production activities of the above 1,251 gas wells; specifically those within the City limits. The evaluation identified the need for more effective record management, site inspections, and overall oversight. As such, staff has concluded that it is timely and necessary to hire qualified gas well specialists to reassume the duties and responsibilities 2 that were previously under the purview of the former Gas Well Drilling and Production Coordinator. There has been heightened public awareness and concern surrounding natural gas production, due mostly to perceived or real adverse impacts that could potentially result from breathing hydrocarbons that are released during gas well drilling and production. There are also concerns regarding the contamination of potable freshwater wells being used for human consumption. These have led to an increase in the amount of hours staff must spend responding to citizen complaint such as regular monitoring of sound meters on gas well sites, reviewing hazard mitigation plans, and conducting more than the normal number of site monitoring visits to ensure compliance with various conditions of gas well development plats and permits. These requests have also contributed to the need to hire knowledgeable staff. Included in this report are several amendments to the DDC that will require additional reviews and site inspections not currently required (such as those pertaining to conducting decibel readings), ensuring distance separation requirements of the proposed "Protected Uses," performing more frequent periodic inspections of gas well sites as required in Section 35.22.15 of the DDC, and the review of Gas Well Development Site Plans. In addition, greater attention is required in conducting annual administrative review of insurance, indemnification and security bond documents to ensure that these documents are kept current. The proposal to hire gas well specialists is also based on a recent study of how other cities within the Metroplex manage their gas well drilling and production activities. For instance, the City of Fort Worth has five (5) personnel, who are primarily responsible to manage, coordinate, and conduct field inspections for approximately seventeen hundred (1,700) gas wells within their city. Ft. Worth's personnel include of: one (1) Gas Well Management Development Administrator, two (2) Gas Well Inspectors, and two (2) Administrative Assistants. A recent discussion among various cities within the Metroplex, and staff's inquiries among gas well companies indicates that the City of Fort Worth has one of the most comprehensive requirements for gas well drilling and production in the region. Ft. Worth is also regarded as one of the cities in the Metroplex with a more efficient review and inspection process. Staff is initially proposing the hiring of four (4) FTEs to oversee, inspect, and manage the gas wells that are under the City's jurisdiction. The proposed four (4) FTE will include one (1) Gas Well Administrator, two (2) Gas Well Inspectors, and (1) Administrative Assistant. The estimated first year cost of the four (4) FTEs (including salaries, benefits, and equipment) is $652,269. The annual cost thereafter will decrease, given that the first year cost includes the purchase of three (3) vehicles, which will not carry-over to future years. Please see the chart below for additional information. 1.~. Gas ~VclI Administrator.. 572.800 S27 0 Q S, 100 110 Gas Wcll Inspcctor Gas WCII Inspector $42,244 $59.592 $20,082 $24.185 $62,328 $83.778 Off cc Assistant $4 3.080 $21)_422 $04.10 Total $218,316 $91,999 $310,317 Gciicral Ad1niiiistritiNc/SupportSCI-NICCs Total Equipment- Support 42,, $1(19.527 Grand Total For 4 FTEs $652,269 Due to the recent (and future) annexations, staff anticipates that one or more additional Gas Well Inspectors will be needed due to the anticipated increase in number of gas wells that will be under the City's jurisdiction. In addition, as the City's gas well review and inspection program develops, and as performance measures are conducted and reviewed, the results may also justify additional personnel to effectively and efficiently manage the workload. The exact increase in the number of gas wells has not been determined as of the date of this report. Current and Proposed Fees: In order to provide the level of services contemplated by the proposed regulations and to avoid the previous circumstance, in which many services were not funded and unrecovered expenses were subsidized by general fund revenue, rather than fees for service, staff is recommending increases to the current gas well review fees, as set forth in the revised fee table. below. Gas Nell Dc:v Jopimmt Plat $2OO + per acre $4.~>3O $5,000 Gas \Vcll Plat Anlcndnlcnt $25(1 $4-93(1 $,,000 Application Rcv icN\ (SUP - I'` 2 rcv icN\ s) $1.500 + $(,5 pcr ac. $12.435 $12,500 Watcrshcd Protcction Permit $ I.3UU $2.971 $3,000 Gas Well Permit $200 $544 $550 Gas Nell Dc:v Jopimmt Site Plan $O $7,500 Gas NV'cll DcNclopmcnt Sitc Plan Amcndmcnt $0 $5,000 Additional Rcv ICN\ s $O $4.~>3O $5,000 Transfer of Operation $0 $6h4 $700 Annual Inspection and Administration (City-) $0 $1,597* $3,200 Annual Inspection and Administration (ETJ) $0 $900* $1,800 4 Fractw-c/Drill Pond $U $544 $550 Compressor Facility Permit $0 $544 $550 *The current cost-of-service is based on one inspection per year. However, the proposed annual fees are designed to recover at least the cost-of-service for two (2) inspections per year. It is anticipated that midtiple inspections may be required annually, per gas well. Fiscal Impact: This fee proposal and study is based on the number of existing gas wells within the City and the City's ETJ, and the average number of gas well permits reviewed annually from 2005 to 2009. Annual Inspection and Administration Fee - As previously stated, there are currently 206 gas wells within the City and 1,045 within the ETJ, totaling 1,251 gas wells. However, the number of wells is expected to increase in light of the recent (and future) annexations. Staff estimates that the proposed Annual Inspection and Administration Fees will generate approximately $659,200 from gas wells within the City, and potentially $1,881,000 from gas wells within the ETJ, for an overall total of $2,540,200. This calculation is based on the proposed Annual Inspection and Administration fee of $3,200 per gas well within the City and $1,800 for gas wells within the City's ETJ times the number of gas wells within each jurisdiction. It is staff's determination that the proposed fees are adequate to cover the cost-of-service for conducting, at a minimum, two (2) inspections per gas annually. Funding for the salaries, benefits and equipment needed for all gas well inspectors will come from the revenue generated from these inspections. Gas Well Development Plat/Site Plan Review Fee - It is projected that approximately $105,000 in annual revenue will be generated from gas well plat/site plan reviews that do not require an SUP. The number of gas well plats reviewed per year from 2005 to 2009 within the City and the E.T.J are shown in the table below: 4 7 5 31 411 10.2 8 18 2 3 0 II 6.2 Gas Well SUP Fee - Using figures from the same five (5) years, it is also projected that approximately $25,000 will be generated from gas well applications that require SUP. This projection is based on a proposed fee of $12,500 times two (2), which is the average number of Gas Well SUPS reviewed per year from 2005-2009. Summary - Based on the aforementioned calculations, it is projected that $2,670,200 in annual revenue will be generated from Gas Well Development Plats/Site Plan reviews, and gas well SUP reviews, in conjunction with the proposed annual inspection and administration fees, if the fees proposed by staff are adopted. The total cost-of-service 5 associated with these activities is estimated to be $2,668,414; resulting in an annual net revenue of $1,786. The projected annual cost-of-service and revenue are shown in the table below. These calculations are based on the average number of application reviewed by the City during the recent five (5) years: Activities Proposed Revenue Costs-of- Service Net Revenue Gas Well Plat Reviews $30,000 $29,580 $420 Gas Well Site Plan Reviews $75,000 $75,000 0 Gas Well SUP Reviews $25,000 $24,870 $130 Annual Inspection and Admin. (City) $659,200 $657,964* $1,236 Annual Inspection and Admin ETJ $1,881,000 $1,881,000 $0 Total $2,670,200 $2,668,414 $1,786 *The projected cost-of-service for inspections is contingent upon conducting on an average, two (2) annual inspections per gas well. There are additional net revenues that will be realized from the new fees that are proposed by staff, however, projections cannot be made at this time, given that there is no historical data associated with these activities. It is important to note that the collection rates associated with the new inspection fees are difficult to assess since we do not have any history in charging these fees. In addition, the exact impact of these inspections to other departments is not known with certainty Activity Fee The following fees shall be charged for the first two (2) reviews Gas Well SUP Review $12,500 Gas Well Development Site Plan $7,500 Gas Well Development Plat Review $5,000 Gas Well Plat/Site Plan Amendment $5,000 Each additional tivo (2) reviews $5,000 The following fees shall be charged annually per gas well Annual Inspection and Administration Ov ithin City-) $3,200 Annual Inspection and Administration (within ETJ) $1,800 The following fees shall be charged per each application NN'atcrshcd Protcction Pcrmit $ 3.000 Transfcr of Opcration $700 Gas Wcll Pcrnut $~~U Fracturc/Drill Pond $550 Compressor FacilitN Pcrmit $55U 6 II. Definitions: To eliminate potential ambiguity and to provide clarity to some of the proposed language that is being recommended by staff, it is necessary to amend existing terms, and to add several terms and their associated definitions to DDC 35.22.2 - Definitions, and DDC 35.23. III. Minimum Separation Requirements (Setback), and Duration of Gas Well Permit: During staff's research of the seven (7) comparison cities in the Metroplex, it was discovered that three (3) cities: Weatherford, Roanoke, and Flower Mound currently have a one thousand-foot (1,000') minimum separation requirement between gas wells and Protected Uses or freshwater wells. (See table below,-) -1 S() feet 1,000 feet from water supply well 1,000 feet 1,000 feet - 500 feet if the ovv ner has an mineral into rest in the gas Nv e11 To aid with the mitigation of some of the potential negative impacts associate with gas well drilling and production, such as noise, light, and air pollution, and to lessen the possibility of potable freshwater well contamination, staff recommends that Subsections 35.223.A and B be amended to increase the minimum separation distance between gas wells and any Protected Use (residence, church, public park, public library, hospital, or school), active potable freshwater wells, or a previously platted residential subdivision where one (1) or more lots have one (1) or more strictures, from five hundred feet (500') to one thousand feet (1,000'). Except where more stringent separation distances are specified, the minimum separation distance between gas drilling or production, including gas wells, tanks, dehydrators, separators, mud pits, tank battery, etc., and all other uses or features shall be five hundred feet (500'). Staff also recommends that provisions be made available to reduce the above minimum separation distances to as low as three hundred (300) feet, via the granting of a variance by the City's Zoning Board of Adjustment, or if all the property owners of the affected uses within the anticipated reduced separation area agree to the reduction via a notarized waiver. Duration of Gas Well Drilling Perini : It is anticipated that a large number of gas well drilling permit applications will be submitted to the City with the intent to "vest" the right to commence gas well drilling and production without being subject to any of the more stringent regulations proposed herein. Staff is recommending that the duration of a Gas Well Drilling Permit be reduced from one year (1) to six (6) months with an automatic expiration. If gas well drilling activities have commenced under a valid drilling permit, the permit must be renewed annually. However, 7 if gas well drilling activities have not commenced during the six (6)-month life of the permit, the drilling permit may not be extended; however, the Operator may reapply for a new drilling permit, subject to all requirements of the DDC, as amended. IV. Board of Adiustment Authority: Staff is proposing the option of reducing the minimum separation requirement established in DDC 35.22.3.A.1 and 2 above via the granting of a variance by the City's ZBA V. Screening: Per Subsection 35.22.5.2.n of the DDC - On-site Requirements: "All well heads, storage tanks, separation facilities or other mechanical equipment located irithln 500' of an a4jacent residential property and not frith n a floodplain shall be screened from the residential property with a 6' high solid screen fence, good side facing the residential property. " Staff recommends that five hundred foot (500') separation distances between well heads, storage tanks, separation facilities or other mechanical equipment be increased to one thousand feet (1,000') for Protected Uses; that the minimum screening height be increased to eight feet (8') for all uses; and that the screening material be upgraded to a decorative opaque masonry wall. VI. Noise Management: One of the most frequent protests associated with gas well drilling and production is the noise associated with these or such activities. Six (6) of the cities studied by staff conduct a noise study prior to drilling activities. The noise study assists the cities to establish an Ambient Noise Level, which is used to set the baseline for noise levels for drilling operation. In addition to the noise study, the six (6) cities require a Noise Management Plan. Information contained in the Noise Management Plan demonstrates how the increases in noise level resulting from drilling operations will be mitigated. In addition to determining permitted noise levels based on the established Ambient Noise Level, the sampled cities also have maximum permissible noise levels for gas well drilling and production activities. These noise levels range from a minimum of seventy decibels (70d13) to eighty five decibels (85dB). 8 The following table illustrates the noise level standards for the cities that were studied by staff: 1E Denton Ft. V orth LevyisN Me Arlin tun 90dB at any point 300 Dependent on ambient Noise management Dependent on ft from the boundary noise level submitted plan is required; ambient noise level of the drill site or by noise study. however, noise cannot but not to exceed operation site. Noise levels are exceed 78dB measured 78dB measured 300 ft measured 600 ft from a 300 ft from the from boundaries of Protected Use. production equipment the site. u11E ; the ambient level is higher. NX catherford Corinth Roanoke Fhmcr Mound Noise level is not Dependent on the 78dB mF i>ured 300 ft Noise management allowed to exceed results of Noise study. from the production study/plan is required; 70dB measured 100 ft Noise levels are equipment. however, noise cannot from the boundary of measured 100 ft from a Sound level of 85dB exceed 70dB the drill site for Protected Use. measured 300 ft from measured 300 ft from combustion engines. the production the production equipment is allowed equipment. during fracturing. According to the Department of Labor, the ninety decibels (90dB) permitted by 35.22.5.A3.d is the typical sound level generated by a lawn mower or a chain saw. Constant exposure to this level of sound is considered a nuisance, and incompatible to Protected Uses or habitable strictures. Therefore, staff recommends that Subsection 35.22.5.A3.d be amended; new language be added as 35.22.5.A.31 that references the minimum noise mitigation standards established in a new subsection - 35.22.5.B - Noise Management Plan; and that the current 35.22.5.B becomes 35.22.5.C. VII. Gas Well Development Plats Since its inception, Denton's gas well regulations have been implemented, in part, using a platting model instead of a zoning model. This change carried the advantage of extending regulatory authority into the extraterritorial jurisdiction - a model that was quickly emulated by other cities. However, in leaving a zoning-centric model within the city limits, Denton lost some of the regulatory advantages to be gained by that method, and work sessions revealed Council's desire to gain these advantages back, where possible. Consequently, the current draft recommends a more zoning-centric model of requiring site plans within the City limits, where it can be used to full advantage, while retaining a plat- centric model within the ETJ. EXHIBITS: 1. Combined DDC amendments 2. Ordinance 9 OPTIONS 1. Approve as submitted. 2. Approve subject to conditions. 3. Deny. 4. Postpone consideration 5. Table item Prepared and Respectfully submitted by: Mark Cunningham, AICP, CPM Director of Planning and Development 10 Exhibit 1 Citation Proposed Ordinance 35.3.6 A. The following actions shall follow the Board of Adjustment Procedure: 1. Consider an application for a Variance from the zoning regulations. 2. Consider an application for a Variance from the sign regulations. 3. Consider an application for a Variance from gas well drilling and production regulations, within the City- limits. 4. Consider an application to change, reestablish or terminate a Nonconforming tTse. -5. Consider an appeal of an Administrative Decision. 35.3.6.B.2 The Zoning Board of Adjustment may grant a variance from the front card, side card, rear card, lot width, lot depth, coverage, minimum setback standards, landscaping regulations, or from the minimiun separation regrurement for gas well drilling and production, where literal enforcement of the regulations will result in an unnecessary hardship and where the variance is necessary to develop a specific parcel of land, which because of site's shape, size or topography differs from other parcels in the same district, and that it cannot be developed in a manner commensurate with the development allowed for the other parcels. A variance shall not be granted to relieve a self-created or personal hardship or to relieve a purely financial hardship. In granting any variance, the board may designate conditions, which, in its opinion, will secure substantially the purpose and intent of the Development Code. A variance shall only be granted upon a finding that: 35.16.19.A Any person who proposes gas drilling or production on a tract of land located within the City's Extraterritorial jurisdiction, shall submit a Gas Well Development Plat for review and approval by the City-. If any portion of the proposed area to be platted lies within a floodplain, an ESA or within one thousand, two hundred feet (1,200') of the flood pool elevation of Lake Ray Roberts or Lake Lewisville, a watershed protection permit application for such area(s) shall be submitted with the development plat application, and shall be decided before any decision on the plat. 35.16.19.D.8 c. Show the location and use of all structures within one thousand feet (1,000') of the wellhead. j. Clearly delineate the boundaries of the gas well drilling or production area with metes and bounds. All gas well drilling and production activities shall be limited to this area. k. A Gas Well Development Plat shall only contain one (1) drilling or production area, and the area shall not be greater than five (5) acres. 35.16.19.E 1. If gas well drilling activities have not commenced within one (1) year from the date of approval, the Gas Well Development Plat shall expire. 2. A Gas Well Development Plat may not be extended. 3. If the Gas Well Development Plat expires, then so too shall all associated Watershed Protection Permits. 4. tTpon expiration of a Gas Well Development Plat, the applicant may reapply for a new Gas Well Development Plat, subject to all requirements of the DDC, as amended. If a Watershed Protection Permit is required in conjunction with the Gas Well Development Plat, the applicant must also apply for a new Watershed Protection Permit, subject to all requirements of the DDC, as amended. -5. If gas well drilling or production has commenced, the gas well drilling and production area shall be subject to inspections by the Cit\-, and shall also be subject to an Annual Inspection and Administration Pee. DDC 35.22.2 Operator. The person listed on the Railroad Commission Form N\--tor Form P-4 for a well as the person that is, has applied for, or will be actually in charge and in control of drilling, maintaining, operating, pumping, or controlling any well or pipeline including without limitation, a unit operator. Ambient Noise Level. An all-encompassing noise level associated with a given environment. A composite of sounds from all sources (excluding the noise in question) at the location and approximate time at which a comparison with the noise in question is to be made. In this context, the ambient noise level constitutes the normal or existing level of environmental noise at a given location. The Ambient noise Level is established by recording sounds from all sources (excluding the noise in question) over a continuous seventy--two (73) hour period at the location prior to drilling. The seventy--two (73) hour time span shall include at least one twenty--four (34) hour reading during either a Saturday or Sundae. Blowout Preventer. a mechanical, hydraulic, pneumatic or other device or combination of such devices, secured to the top of a well casing, including valves, fittings and control mechanisms connected therewith, which can be closed around the drill pipe, or other tubular goods which completely closes the top of the casing and are designed to prevent blowouts. Commencement of Drilling Activities. The reflection of either "spud Well" or "Nipple Up" the Blow Out Protectors (130P) by the drilling contractor on the LSDC API Daily Drilling Report Form maintained by the Operator's tool pusher on the pad site. Completion of drilling, re-drilling and re-working. The date the work is completed for drilling, re-drilling, or re-working, and the crew is released by completing its work or contracted by its employer. Daytime. The period from 7:00 am to 7:00 pm., Monday through Friday-; and from 8:00 am to 5:00 pm., Saturdays and Sundays. Drilling and Production Area (AKA Gas II'ell Park, Gas II'ell Pad Site). The area dedicated to all gas well drilling and production activities, including the drill site, all structures, closed-loop systems, dehydrators, parking areas, security- cameras, lighting, tanks, tank batten-, drilling rigs, separators, compressors, perimeter walls, utilities, and all other features or objects contemplated for use during and after gas well drilling or production. Flowback. The process of recovering fluids or residual from a completed or fractured well. Gas Production. The phase that occurs after successful exploration, drilling and development involving operations including but not limited to, gas wells, tanks, dehydrators, separators, mud pits, ponds, tank batteries or associated mechanical equipment, and during which hydrocarbons are extracted from the gas field, excluding those operations and facilities as defined and regulated by the Pipeline Safet\_ Act of 1994, 49 US(-_. 60101 - 60137. Habitable Structure. Structures suitable for human habitation or occupation for which a Certificate of Occupancy or Final Inspection Certificate is required, including but not limited to single or multi- family residences, accessory- guess houses, hotels, condominium buildings, public buildings, and buildings used for commercial or industrial purposes. A habitable structure shall not include non- habitable accessory buildings garages and sheds. Lift Compressor. A device that raises the pressure of a compressible fluid (gas) in order to lift gas from the well. Line Compressor. A device that raises the pressure of a compressible fluid (gas) in order for the gas to be transported through a pipeline. Nighttime. The period commencing at 7:00 pm and ending at 7:00 am., Monday through Friday and from 5:00 pm to 8:00 am., Saturdays and Sundays. Nipple Up. The process of assembling well-control or pressure-control equipment on the wellhead. Permit, Gas Well Any written license grunted by the Cit\- of Denton for the exploration, drilling, development, and production of natural gas, issued pursuant to rules and regulations of this Subsection. Protected Use. Any residence, church, public park, public libran-, hospital, or school. Residence. A home, abode, or place where an individual is actually living at a specific point in time. A structure or part of a structure containing dwelling units or rooming units, including single-family or two-family houses, multi-family dwellings, boarding or rooming houses, elderly living facilities, apartments, or dormitories. Workover Operation. Fork performed on a well after its completion in an effort to secure production where there has been none, to restore production that has ceased, or to increase production. 35.22. Zoning District Classifications for Gas Well Drilling and Production A. The drilling and production of gas within the corporate limits of the City- shall be permitted by right within the Rural Residential (RD-5), Rural Commercial (R(--), Neighborhood Residential 1 (NR-1), Neighborhood Residential 2 (NR-2), Regional Center Commercial Neighborhood (RC(--- N), Regional Center Commercial Downtown (RC(---D), Employment Center Commercial (E(--- C), Employment Center Industrial (E(---I), Industrial Center Employment (I(---E) and Industrial Center General (IC-G) Zoning Districts, except as provided in subsection B, and subject to compliance with the requirements of this subchapter. B. The drilling and production of gas within the corporate limits of the City- in all other zoning districts shall be permitted only by Specific tTse Permit pursuant to subchapter 3-5.6. Notwithstanding the provisions of Subsection A, approval of a Specific tTse Permit also shall be required for gas well drilling and production on any land located within the 100-rear floodway or within one thousand, two hundred feet (1,200') of the flood pool elevation of Lake Ray Roberts or Lake Lewisville. 1. An application for a Specific tTse Permit for the drilling and production of a gas well shall be filed by the person haying legal authority-. That person is presumed to be the record owner, mineral owner, or the duly authorized agent of either the record owner or the mineral owner. The Chairman of the Development Review Committee (DR(--) may require an applicant to submit information of authority- to file an application. 2. The Chairman of the DRC has the authority- to establish requirements for applications in the Application Criteria Manual. No application shall be accepted for filing until it is complete and the fee established by the City- Council of the City- of Denton has been paid. Incomplete applications shall be returned less a fee for processing determined by the Director of Planning and Development. 3. Approval of a Specific tTse Permit shall be conditioned on compliance with the requirements of this Subchapter. 35.22.4 35.22.4 Required Authorization for Gas Well Drilling and Production in City Limits A. No gas well drilling or production activities may be commenced within the City- limits until the following authorizations have been obtained, in the following sequence: 1. Approval of a Specific tTse Permit, where required by section 3.22.3.8; 2. Approval of a Watershed Protection Permit, where location of any gas well drilling or production activities is proposed on land in the flood fringe or in an ESA, subject to the application requirements and standards of section 3-5.22.-5.A.8; 3. Approval of a Gas Well Development Site Plan, subject to the application requirements and standards of section 3.22.6; and 4. Approval of a Gas Well Permit, subject to the application requirements and standards of Section 3.22.7. B. An application for any authorization for gas well drilling and production listed in Subsection A may be submitted simultaneously with any other listed application, but the applications must be decided in the numerical order listed. No subsequent application shall be determined to be complete and hereby is deemed to be incomplete until all required prior applications have been approved, and no completeness determination shall be made until such prior applications have been decided. C. Approved applications for gas well drilling and production shall expire under the following circumstances: 1. A Specific tTse Permit shall expire according to its terms; 2. A Watershed Protection Permit shall expire with the expiration of a Gas Well Development Site Plan. 3. A Gas Well Development Site Plan shall expire unless a complete application for a gas well permit has been filed within one (1) year of the date of approval of the site plan. 4. A Gas Well Permit shall expire if gas well drilling activities have not commenced within six (6) months of the date of approval of the Gas Well Permit. 5. The expiration of any subsequent application shall result in the expiration of all prior approved applications. D. Approved applications for gas well drilling and production may not be extended prior to expiration. Following expiration of an approved application for gas well drilling and production, a new application must be submitted, which shall be subject to all DDC standards and procedures then in effect. E. Each authorization identified in this Section shall be construed as an exercise of the City's zoning powers, pursuant to City Charter, Tex. Loc. Gov't Code Chapter 211 and the provisions of subchapter 353 of the Denton Development Code. F. The authorizations required by this Subchapter are in addition to, and not in lieu of, any permits that may be required by any other provision of the Denton City- code or by any other government agency. 35.22.5 A. The drilling and production of gas wells within the City limits or the City's ETJ shall include the following standards. 1. Separation standards. The following requirements apply only within city- limits. a. No gas well drilling or production area may be located within one thousand feet (1,000') of any protected use, or freshwater well currently in use at the time a complete application for a Gas Well Development Site Plan is filed, or within one thousand feet (1,000') of any lot within a previously platted residential subdivision where one (1) or more lots have one (1) or more structures. b. Except where more stringent separation distances are specified, the minimum separation distance between gas drilling or production, and all other uses or features other than those listed in 35.22.5.A. 1.a, shall be five hundred feet (500'). c. The minimum separation requirement established in 35.22.5. A.1.a and b above may be reduced via the granting of a variance by the Zoning Board of Adjustment. Alternatively, all the property- owners of the affected uses, all owners of property- with a freshwater well currently in use at the time a complete application for a gas well development site plan is filed, and all owner of lots in a previously platted residential subdivision where one (1) or more lots have one (1) or more structures within the reduced separation area, may consent to the reduction via a notarized waiver, if the notarized waiver is attached to the permit application, in which case no variance shall be required. Except that the minimum separation distance may not be reduced to less than five hundred feet (500'). d. Separation distances shall be measured from the boundary of the drilling and production areas identified on the Gas Well Development Plat or Gas Well Development Site Plan, in a straight line, without regard to intervening structures or objects, to the closest exterior point of any structure occupied by a Protected tTse, or freshwater well currently in use at the time a complete application for a gas well development site plan is filed, or the closest lot line of any undeveloped lot within a previously platted residential subdivision where one (1) or more lots have one (1) or more structures. 35.22.5.A.2 e. Permanent weatherproof signs reading "DANGER NO SMOKING ALLOWED" in a minimum of four inch (4") lettering shall be posted at the entrance of each drill site and operation site. The sign shall include the development or operating company that is currently responsible for the gas well plat or site plan, the Railroad Commission Well Identification Number and the American Petroleum Institute nrunber for the well, the phone niunber for emergency services (911), the number for the operator, and any other well designation required by the Railroad Commission in two inch (2'~ lettering. n. All well heads, storage tanks, separation facilities or other mechanical equipment located within one thousand feet (1,000') of any protected use, or any lot within a previously platted residential subdivision where one (1) or more lots have one (1) or more structures, or within five hundred feet (500') of all other uses or features other than those listed in 33.22.3. A.La, and not within a floodplain, shall be screened from such uses, lots or features with an eight-foot (8') high or higher opaque decorative masonry- wall, if the use, lot or feature preexisted the commencement of gas well drilling. 35.22.5.A.3 d. Internal combustion engines with mufflers may be used in drilling operations. Only electric motors shall be used for the purpose of pumping gas wells. k Except in the case of an emergency, gas well flaring shall only be conducted during day-time hours. 1 Gas well fracturing may only be conducted during day-time hours 3522.5.A.4 a. An operator is allowed to construct, use, and operate such storage equipment and separation equipment as shown on the approved Gas Well Development Site Plat or Gas Well Development Site Plan, except that permanent storage equipment and separation equipment may not exceed eight (8) feet in height. b. The use of centralized tank batteries is permitted as shown on the applicable Gas Well Development Plat or Gas Well Development Site Plan. 35.22.5.A.6.p No gas well permit will be issued for any well where the center of the well at the surface of the Revised p ground is located within one thousand (1,000) feet of an existing fresh water well intended for domestic use. 35.22.5.A.8.b A Watershed Protection Permit containing an ESA assessment of the drill site shall be submitted to the DRC by the Watershed Protection Department and/or the F~'loodplam Administrator for all applicable ESA's prior to the approval of a Gas Well Development Plat. 35.22.5.A.8.c.iv Tree Mitigation funds shall be paid prior to final approval of a Gas Well Development Plat or Gas Well Development Site Plan in a Flood Fringe or other ESA. 35.22.5.A.8.f No more than ten (10) percent of the floodplain, within the limits of the Gas Well Development Plat or Gas Well Development Site Plan, may be filled. 35.22.5.C Noise Management Standards The following standards apply to gas well drilling and production in the Citv-limits. 1. prior to the issuance of a Gas Well Drilling and Operating Permit, the Operator shall establish and submit to the City, a continuous sevenh--two (72) hour pre-drilling Ambient Noise Level measured three hundred (300) feet from the boundaries of the gas well drilling or production site. The seventy--two (72) hour time span shall include at least one (1) twenty--four (24) hour reading during either a Saturday or Sunday. 2. No gas well drilling or production, re-drilled or any equipment shall be operated at any gas well drilling or production site within the City- in such a manner so as to create any noise that exceeds seventy- five decibels (73dB) when measured three hundred (300) feet from the boundaries of the gas well drilling or production site. 3. The three hundred-foot 300' distance shall be measured from the boundaries of the as well drilling or production site depicted on the Gas Well Development Plat or Gas Well Development Site Plan, in a straight line, without regard to intervening structures or objects. 4. If the ambient noise level that was established and submitted to the City- in accordance with 35.22.5.C.1 is higher than seventy- five decibels (75dB), the noise generated from the gas well drilling or production site mar not exceed the established ambient noise level by more than five decibels (5dB) during daytime hours and three decibels (3dB) during nighttime hours, except as provided by 35.22.5.C.5 below. -5. The following adjustments to the noise standards as set forth above may be permitted intermittently during daytime hours on1A-, except in the case of an emergency: Maximum Permitted Increase above 75d: or Maximum Duration established ambient, if ambient exceeds 75dB (minutes)* 10 dB minutes 15dB 1 minute 20dB Less than 1 minute C ~~e minutes during anyone hoary 6. Acoustical blankets, sound walls, mufflers or other alternative methods as approved by the City may be used to ensure noise limitation compliance. All soundproofing shall comply with accepted industry- standards and be subject to approval by the City-'s Fire Department. 7. The sound level meter used in conducting noise evaluations shall meet the American National Standard Institute's Standard for sound meters or an instrument and the associated recording and analyzing equipment which will provide equivalent data. 8. The noise level generated during gas drilling operations shall be continuously monitored to ensure compliance with the noise limitation standards established herein. The cost of such monitoring shall be borne by the Operator. The information from this monitoring shall be provided to the City- upon request, in a format that is acceptable to the City-. Failure to provide this information within 48 hours of the request is considered a violation of this subchapter. 9. If a complaint is received after gas well drilling operations by either the Operator or the Cit\-, the Operator shall immediately upon receipt of the complaint, continuously monitor the exterior noise level generated by the gas well drilling or production for a seventy--two (72) hour period and take the action necessary- to abate the violation, if a violation exits. 10. In the event of a violation of this subsection, the City- may immediately issue a citation to the Operator for the violation. 35.22.6 Gas Well Development Site Plan and Watershed Protection Permit A. Applicability 1. A Gas Well Development Site Plan shall be approved for any hind within the Cit\- limits before a Gas Well Permit may be issued or any gas well drilling or production activities may occur. Approval of a Gas Well Development Site Plan authorizes the processing of a complete application for a Gas Well Permit. 2. A Watershed Protection Permit shall be approved prior to approval of any Gas Well Development Site Plan, Gas Well Development Plat, or Gas Well Permit that includes land in any floodplain or ESA within the corporate limits or ETJ of the city-. Approval of a Watershed Protection Permit authorizes the processing of a complete application for a Gas Well Development Site Plan or Gas Well Development Plat, as the case may be, that includes land in a floodplain or ESA. B. Application Requirements - G Well Development Site Plan 1. An application for a Gas Well Development Site Plan shall not be determined to be complete or deemed complete until: a. any required Specific tTse Permit has been approved by the City- Council; b. a complete application for a Watershed Protection Permit, where required, has been filed with the City- pursuant to this subchapter. Approval of an application for a Gas Well Development Site Plan shall be conditioned on approval of an applicable Watershed protection Permit, and anv conditions imposed with approval of the Watershed Protection Permit shall be deemed incorporated into the conditions of approval for the Gas Well Development Site Plan. 3. Approval of a Gas Well Development Site Plan authorizes the holder of the approved Site Plan to apply for a Gas Well Permit. 3. An application for a Gas Well Development Site Plan, in addition to those items set forth in Subsection 1, shall: a. Clearly delineate the boundaries of the gas well drilling or production area with metes and bounds description, and list the exact acreage of the area. All gas well drilling and production activities shall be limited to this area. b. Identify all ingress and egress points. C. Show the location of all floodplains and ES As. d. Show the location of all freshwater well currently in use at the time of commencement of drilling activity within one thousand feet (1,000') of the gas well drilling and production area. e. Show the location of all structures with a protected use within one thousand feet (1,000') of the gas well drilling and production area; f. Identifo- and show proposed method of erosion and sediment control; g. Identify the location of proposed lease lines; h. Identifr the location of all proposed gas wells, mud pits, ponds, and mechanical equipment; i. Label distances between gas wells and property lines; j. Provide typical well site schematics showing layout during drilling and upon completion of drilling; k. Show location of all proposed underground pipelines. As-built drawings shall be filed with the City- (in a digital form as specified by the Cit\-, and as a condition of maintaining the annual operating permit). All pipelines proposed in public rights- of-way shall require a Right-of-Way tTse Agreement. The City- :Nlankger shall have the authority- to enter into a Right of Wav tTse Agreement; 1. Show the location of all pipelines and identify if pipelines connect with a Gas Distribution System; m. Identify the height, size, bulk and location of all structures, closed-loop systems, dehydrators, parking areas, securitt- cameras, lighting, tanks, tank batten-, drilling rigs, separators, compressors, perimeter walls, utilities, and all other features ()r objects contemplated within the boundaries of the gas well drilling or production area; n. Provide a Tree Protection Plan demonstrating compliance with the City's Tree Preservation Code; o. Provide a Signkge Plan, complying with all requirements of the City- for both the Drill Site and pipelines; N\lien applicable, a Screening, Fencing, and Landscape Plan, detaih 7 with all landscape and screening measures to be taken to adequately irrigate all landscaping including the water source for irrigation and the proposed efforts to replace dead or dying screening vegetation; and q. Any other information deemed necessary by the Director of Planning and Development to verifr compliance with these standards. C. Processing of Applications 1. An application for a Gas Well Development Site Plan shall be processed in the manner for an application for a gas well development plat, as provided in section 3.16.19 of the DDC. 3. A watershed protection permit shall be processed in accordance with the following: a. All applications for Watershed Protection Permits shall be filed with the Department, who shall immediately forward all applications to the DRC for review. Incomplete applications shall be returned to the applicant, in which case the City- shall provide a written explanation of the deficiencies if requested by the applicant The City- shall retain a processing fee determined by the City- Council. The City- may return any application as incomplete if there is a dispute pending before the Railroad Commission regarding the determination of the operator. No application shall be deemed accepted for filing until the application is complete. b. The DRC may attach such conditions to approval of a Watershed Protection Permit as are necessat to assure that the requirements of Subsection 35.33.5 are met. c. Each Watershed Protection Permit approved by the DRC shall: i. Identifothe none of each well subject to the permit; ii. Specify the date on which the Permit was issued; in. Incorporate by reference all applicable standards of approval; and V. Incorporate by reference all applicable conditions of approval. d. The applicant may appeal the denial or conditional approval of a Watershed Protection Permit on grounds pertaining to the standards in Subsection 35.22.5.A.6 and 35.22.5.A.8 to the Planning and Zoning Commission within ten (10) calendar days of the decision by the DRC. The Commission shall decide the appeal applying the standards made applicable to the permit by Subsection 35.22.5.A.6 and 35.22.5.A.8. e. The applicant may file a petition for review pursuant to Subsection 35.22.5.A.6 and 35.22.5.A.8 on grounds therein specified to the City- Council within ten (10) calendar days of the decision by the DRC. The Council shall decide the petition based upon the criteria in Subsection 35.22.5.A.6 and 35.22.5.A.8. D. Criteria for Approval 1. No gas well development site plan shall contain more than one (1) drilling or production site, and the area shall not be greater than five (5) acres in size. Drilling of a different gas well within the area subject to an approved Gas Well Development Site Plan shall require an amendment to the site plan application. All standards in section 35.33.5 shall be met. All conditions attached to prior approvals shall be incorporated in the approval of the Gas Well Development Site Plan. 3. The following standards apply to an application for a Watershed Protection Permit: a. For land inside the City, all conditions unposed by any applicable Specific tTse Permit or a Planned Development District for the land subject to the Watershed Protection Permit. b. Standards in Subsection 35.335(A)6 and 35.335(A)8. E. Expiration 1. A gas well development site plan shall automatically expire one (1) year from the date of approval, unless a gas well permit has been issued by the City- for the same site. a. A gas well development site plan shall not be extended. The applicant may submit a new Gas Well Development Site Plan application for review and approval in accordance with all applicable requirements of the DDC then in effect. b. If the Gas Well Development Site Plan expires, then all permits approved prior to or simultaneous with the site plan shall likewise expire on the sane date. 2. A Watershed Protection Permit shall expire with the expiration of the gas well development site plan and may not be extended prior to expiration. 35.22.7.F F. Applications for Gas Well Permits shall be in accordance with the following: 1. shall be in writing; 2. shall be on forms provided by the City; 3. shall be signed by the Operator; 4. shall include the application fee; -5. shall include a copy of the applicable Specific tTse Permit, Planned Development Zoning District, or Gas Well Development Site Plan; and; 6. shall include the information required by the Application Criteria Manual unless such information has been previously provided to the City. 35.22.9.D The security- instrument may be provided for an individual well, or for multiple wells on a single pad site. The amount of the security- shall be determined by the City- Engineer, with due regard to the costs and risks to be secured in subsection A, above, either on a per-application basis, or as administratively established and amended in the Application Criteria Manual, in the minimum amount of $ 0,000 for any single well, or $100,000 for multiple wells on the same pad site. 35.22.10 A. All applications for Gas Well Permits shall be filed with the Department who shall immediately forward all applications to the DRC for review. Incomplete applications shall be returned to the applicant, in which case the City- shall provide a written explanation of the deficiencies if requested by the applicant. The City- shall retain a processing fee determined by ordinance. The City- may return any application as incomplete if there is a dispute pending before the Railroad Commission regarding the determination of the operator. No Gas Well Permit shall be approved under this Section unless the property- owner or applicant first receives approval o£ 1. a Specific tTse Permit or Planned Development District, where required; 2. a Watershed Protection Permit, where applicable; and 3. a Site Plan. Denial or conditional approval of any such applications shall be grounds for denial or conditional approval of the Gas Well Permit. B. The DRC shall review each application within 1-5 days after acceptance for filing and shall determine: 1. whether the application includes all of the information required by this Subchapter; 2. whether the application is in conformance with the applicable Gas Well Development Site Plan, applicable Specific tTse Permit or Planned Development Zoning District; and 3. whether the application is in conformance with the insurance and security- requirements set forth in Subsection 3.22.8 and Subsection 3.22.9. C. The Fire Marshal shall review the application and the written report of the DRC and shall issue the Gas Well Permit after receiving the DRC report within 10 days unless he determines that the application is incomplete or that the application is not in conformance with the applicable Gas Well Development Site Plan, applicable Specific tTse Permit, Planned Development Zoning District. The Fire Marshal may employ a technical advisor under the Fire Code. 35.22.10.F.8 Incorporate, by reference, the conditions of the applicable Watershed Protection permit, Gas Well Development Site Plan, and applicable Specific tTse Permit or Planned Development Zoning District; 35.22.10.1 Expiration of Gas Well Permit 1. A Gas Well Permit is valid for six (6) months and shall automatically expire, unless gas well drilling activities have commenced prior to expiration. If gas drilling activities have commenced tinder a valid permit, the permit shall be renewed annually, subject to all applicable standards and the payment of all associated fees. 2. If a Gas Well Permit has been issued by the City- but gas drilling activities have not commenced prior to the expiration of the permit, the permit shall not be extended; however, the operator may reapply for a new permit, subject to all requirements of the DDC then in effect. 3. If gas well drilling has commenced prior to the expiration of the gas well permit, the permit shall continue, and operator shall be subject to an Annual Inspection and Administration fee. 4. If gas well drilling or production activities have commenced following issuance of a gas well permit before the expiration date, the approved site and drilling and production activities shall be subject to inspections by the City- to ensure compliance with terms and conditions of the permit and all applicable standards of the DDC. 35.22.12.B All residences within one thousand (1,000) feet of a well shall be notified a minimum of fort--eight hours prior to fracturing of a wellhead. 35.22.13 A. An operator may submit an application to the Fire Marshal to amend existing gas well permits to: 1. commence drilling from a new drill site that is not shown on (or incorporated by reference as part ot) the existing permit; 2. to relocate a drill site or operation site that is shown on (or incorporated by reference as part of) the exis ting permit; or 3. to otherwise amend the existing permit, for land subject to the same approved Gas Well Development Site Plan. 35.22.13.B.4 4. Such additional information as is reasonably required by the Fire Marshal to demonstrate compliance with the applicable Development Site Plan, applicable Specific tTse Permit or Planned Development Zoning District; and 35.22.13 D. If the activities proposed by the amendment are not materially different from the activities covered by the existing Gas Well Permit or Gas Well Development Site Plan, and if the proposed activities are in conformance with the applicable Watershed Protection Permit, Gas Well Development Site Plan, applicable Specific tTse Permit or Planned Development Zoning District, then the Fire Marshal shall approve the amendment within 10 days after the application is filed. E. If the activities proposed by the amendment are materially different from the activities covered by the existing gas well permit, and if the proposed activities are in conformance with the applicable Watershed Protection Permit, Gas Well Development Plat, Gas Well Development Site Plan, applicable Specific tTse Permit or Planned Development Zoning District, then the Fire Marshal shall approve the amendment within 30 days after the application is filed. If, however, the activities proposed by the amendment are materially different or, in the judgment of the Fire Marshal, might create a risk of imminent destruction of property- or injun- to persons that was not associated with the activities covered by the existing permit or that was not otherwise taken into consideration by the existing permit, the Fire Marshal may require the amendment to be processed as a new gas well permit application. 35.22.15.B The Fire Marshal or the oil and gas inspector shall have the authority- to enter and inspect any premises covered by the provisions of this subchapter, to determine compliance with its provisions, and all applicable laws, rules, regulations, standards, or directives of any local state or federal 10 authority-. 35.22.17.A The Fire Marshal and the oil and gas inspector are authorized and directed to enforce this Subchapter and the provisions of any Gas Well Permit. N-henever necessary to enforce any provision of this Subchapter or a Gas Well Permit, or whenever there is reasonable cause to believe there has been a violation of this Subchapter or a Gas Well Permit, the Fire Marshal or oil and gas inspector, mar enter upon any property- covered by this Subchapter or a Gas Well Permit at any reasonable time to inspect or perform any duty- imposed by this Subchapter. If entry- is refused, the City- shall have recourse to even-y- remedy provided by law and equity- to gain entry. DDC 35.23 Improvement (Public or Private). Any physical man-made addition which becomes put of, is placed upon, or is affixed to any real property-, or any put of such addition, including but not limited to, any building, structure, bridge, work of art, puking facility-, public facilit\-, fence, gate, wall, streets and all related appurtenances, utilities, pedestrianways, bikeways, equestrian trails, landscaping or irrigation, whether involving the subdivision of land or not. Project. A specific development on an identifiable parcel of land. Project improvements. Site improvements and facilities that are planned and designed to provide for a particular development project and that are necessan-y for the use and convenience of the occupants or users of the project. Project site. That portion of any lot, parcel, tract, or combination thereof that encompasses all phases of the total project proposal. di O r nance _ 2009 098 - - , Section 2.4 «rhi Ordinance Add the following fey schedule to Ordinance 20005-237: 20005-237 A i i F ct v ty ee The following fees shall be charged for the first two (2) reviews Gas cll StTP Rcv iew $12,500 Gas cll Development Site Plan $7,00 Gas Well Development Plat Review ~,000 Gas Well Plat/Site Plan Amendment Each additional two reviews $-5! ~1 i0 The following fees shall be charged annually, per gas well Annual Inspection and Administration Pee (within (-ity-) $3,200 Annual Inspection and Administration Pee (within ETI) $1,800 The following fees shall be charged per each application I -,,uisfer of uper,irion $7oo W atershed Protection Permit $3,000 Gas Well Permit $-5-50 Fracture /Drill Pond $~-50 Compressor Facility- Permit $~-50 11 SALegaROur Documents\Ordinances1101DCA10-0003.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING CERTAIN SECTIONS WITHIN SUBCHAPTERS 3, 16, 22 AND 23 OF THE DENTON DEVELOPMENT CODE, RELATING TO GAS WELL DRILLING AND PRODUCTION, DEFINITIONS, AND PROCEDURES; ADOPTING A NEW PLANNING AND DEVELOPMENT REVIEW FEE SCHEDULE, PERTAINING TO GAS WELL DRILLING AND PRODUCTION WITHIN THE CITY LIMITS AND THE EXTRATERRITORIAL JURISDICTION; AND PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, SEVERABILITY AND AN EFFECTIVE DATE. (DCA10-0003). WHEREAS, pursuant to Ordinance No.2002-040, the City Council of the City of Denton, Texas adopted the Denton Development Code (the "Development Code"); and WHEREAS, the authority of a home rule municipality to regulate the exploration and production of natural gas within its city limits and extraterritorial jurisdiction as provided herein, is legislatively recognized, inter alia, at §92.007 of the Texas Natural Resources. Code; §§54.012, 212.003, 212.044 and 217.042 of the Texas Local Government Code; and numerous other legislative and Constitutional provisions of the State of Texas; and WHEREAS, the City has codified its regulations governing gas well drilling and production within the City and extraterritorial jurisdiction in Subchapters 16 and 22 of the Denton Development Code, and applicable procedures and definitions in Subchapters 3 and 23; and WHEREAS, it has come to the attention of the City Council that the City's current standards may not fully implement the City's dual goals of allowing gas well drilling and production, and at the same time protecting the public's health, safety and general welfare; and WHEREAS, a multitude of gas well permit applications have been filed recently with the apparent goal of vesting against additional health and safety standards that may be promulgated by the City; and WHEREAS, the City has authority to impose a moratorium on authorizations for gas well drilling and production pending a thorough investigation into the need for additional procedural and substantive safeguards; and WHEREAS, in lieu of a moratorium on the issuance of gas well permits and other applications authorizing gas well drilling and production, the City Council finds that it is necessary in order to promote the health, safety and general welfare of the community to promulgate a set of procedural and substantive standards pending the City's complete study of the impacts of gas well drilling and production in the City and its ETJ; and WHEREAS, a detailed cost 'of services analysis and comparison with survey cities, related to gas well drilling and production, revealed that Denton's current fee structure is grossly inadequate to cover the cost of proposed services, and far below the fees imposed by neighboring cities for similar services; and further that the proposed changes to the Planning Fee Schedule are Page 1 S:TegaMur Documents\Ordinances110\DCAI0-0003.doe reasonable, and do not exceed the reasonable cost to the City in providing the review of the applicable development applications; and WHEREAS, after providing notice and after conducting a public hearing as required by law, the City Council finds that the subject changes to the Development Code and fees are consistent with Comprehensive Plan and are in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference and found to be true. SECTION 2. Subchapters 3, 16, 22 and 23 are amended to incorporate the specific changes, as identified by section or subsection in Exhibit "1", and such changed sections or subsections shall hereinafter read verbatim as set forth in Exhibit "l which is attached and incorporated fully herein by reference; all provisions not specifically changed herein shall remain as written. SECTION 3. The Planning Fee Schedule, previously established and amended by Ordinances 2005-237 and 2009-098, is hereby amended by substituting, to the limited extent of any conflict, the revised fee schedule pertaining to Gas Well Drilling and Production, attached hereto and incorporated herein on the final page of Exhibit "l"; all fees not amended therein shall remain in place, without repeal or supersedure; and the fees set forth in the Planning Fee Schedule, as modified herein, are authorized to be imposed. SECTION 4. All ordinances in conflict herewith, are amended and superseded to the limited extent of such conflict, and all remaining sections and provisions of such ordinances, not in direct conflict herewith, are hereby made cumulative. SECTION 5. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 6. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 7. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2010. MARK A. BURROUGHS, MAYOR Page 2 S:U.egal\Our DocumentslOrdinances110IDCA10-0003.doc ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: Page 3 APPROVED AS TO LEGAL FORM: Exhibit 1 Citation Proposed Ordinance 35.3.6 A. The following actions shall follow the Board of Adjustment Procedure: 1. Consider an application for a Variance from the zoning regulations. 2. Consider an application for a Variance from the sign regulations. 3. Consider an application for a Variance from gas well drilling and production regulations, within the City- limits. 4. Consider an application to change, reestablish or terminate a Nonconforming tTse. -5. Consider an appeal of an Administrative Decision. 35.3.6.B.2 The Zoning Board of Adjustment may grant a variance from the front card, side card, rear card, lot width, lot depth, coverage, minimum setback standards, landscaping regulations, or from the minimiun separation regrurement for gas well drilling and production, where literal enforcement of the regulations will result in an unnecessary hardship and where the variance is necessary to develop a specific parcel of land, which because of site's shape, size or topography differs from other parcels in the same district, and that it cannot be developed in a manner commensurate with the development allowed for the other parcels. A variance shall not be granted to relieve a self-created or personal hardship or to relieve a purely financial hardship. In granting any variance, the board may designate conditions, which, in its opinion, will secure substantially the purpose and intent of the Development Code. A variance shall only be granted upon a finding that: 35.16.19.A Any person who proposes gas drilling or production on a tract of land located within the City's Extraterritorial jurisdiction, shall submit a Gas Well Development Plat for review and approval by the City-. If any portion of the proposed area to be platted lies within a floodplain, an ESA or within one thousand, two hundred feet (1,200') of the flood pool elevation of Lake Ray Roberts or Lake Lewisville, a watershed protection permit application for such area(s) shall be submitted with the development plat application, and shall be decided before any decision on the plat. 35.16.19.D.8 c. Show the location and use of all structures within one thousand feet (1,000') of the wellhead. j. Clearly delineate the boundaries of the gas well drilling or production area with metes and bounds. All gas well drilling and production activities shall be limited to this area. k. A Gas Well Development Plat shall only contain one (1) drilling or production area, and the area shall not be greater than five (5) acres. 35.16.19.E 1. If gas well drilling activities have not commenced within one (1) year from the date of approval, the Gas Well Development Plat shall expire. 2. A Gas Well Development Plat may not be extended. 3. If the Gas Well Development Plat expires, then so too shall all associated Watershed Protection Permits. 4. tTpon expiration of a Gas Well Development Plat, the applicant may reapply for a new Gas Well Development Plat, subject to all requirements of the DDC, as amended. If a Watershed Protection Permit is required in conjunction with the Gas Well Development Plat, the applicant must also apply for a new Watershed Protection Permit, subject to all requirements of the DDC, as amended. -5. If gas well drilling or production has commenced, the gas well drilling and production area shall be subject to inspections by the Cit\-, and shall also be subject to an Annual Inspection and Administration Pee. DDC 35.22.2 Operator. The person listed on the Railroad Commission Form N\--tor Form P-4 for a well as the person that is, has applied for, or will be actually in charge and in control of drilling, maintaining, operating, pumping, or controlling any well or pipeline including without limitation, a unit operator. Ambient Noise Level. An all-encompassing noise level associated with a given environment. A composite of sounds from all sources (excluding the noise in question) at the location and approximate time at which a comparison with the noise in question is to be made. In this context, the ambient noise level constitutes the normal or existing level of environmental noise at a given location. The Ambient noise Level is established by recording sounds from all sources (excluding the noise in question) over a continuous seventy--two (73) hour period at the location prior to drilling. The seventy--two (73) hour time span shall include at least one twenty--four (34) hour reading during either a Saturday or Sundae. Blowout Preventer. a mechanical, hydraulic, pneumatic or other device or combination of such devices, secured to the top of a well casing, including valves, fittings and control mechanisms connected therewith, which can be closed around the drill pipe, or other tubular goods which completely closes the top of the casing and are designed to prevent blowouts. Commencement of Drilling Activities. The reflection of either "spud Well" or "Nipple Up" the Blow Out Protectors (130P) by the drilling contractor on the LSDC API Daily Drilling Report Form maintained by the Operator's tool pusher on the pad site. Completion of drilling, re-drilling and re-working. The date the work is completed for drilling, re-drilling, or re-working, and the crew is released by completing its work or contracted by its employer. Daytime. The period from 7:00 am to 7:00 pm., Monday through Friday-; and from 8:00 am to 5:00 pm., Saturdays and Sundays. Drilling and Production Area (AKA Gas II'ell Park, Gas II'ell Pad Site). The area dedicated to all gas well drilling and production activities, including the drill site, all structures, closed-loop systems, dehydrators, parking areas, security- cameras, lighting, tanks, tank batten-, drilling rigs, separators, compressors, perimeter walls, utilities, and all other features or objects contemplated for use during and after gas well drilling or production. Flowback. The process of recovering fluids or residual from a completed or fractured well. Gas Production. The phase that occurs after successful exploration, drilling and development involving operations including but not limited to, gas wells, tanks, dehydrators, separators, mud pits, ponds, tank batteries or associated mechanical equipment, and during which hydrocarbons are extracted from the gas field, excluding those operations and facilities as defined and regulated by the Pipeline Safet\_ Act of 1994, 49 US(-_. 60101 - 60137. Habitable Structure. Structures suitable for human habitation or occupation for which a Certificate of Occupancy or Final Inspection Certificate is required, including but not limited to single or multi- family residences, accessory- guess houses, hotels, condominium buildings, public buildings, and buildings used for commercial or industrial purposes. A habitable structure shall not include non- habitable accessory buildings garages and sheds. Lift Compressor. A device that raises the pressure of a compressible fluid (gas) in order to lift gas from the well. Line Compressor. A device that raises the pressure of a compressible fluid (gas) in order for the gas to be transported through a pipeline. Nighttime. The period commencing at 7:00 pm and ending at 7:00 am., Monday through Friday and from 5:00 pm to 8:00 am., Saturdays and Sundays. Nipple Up. The process of assembling well-control or pressure-control equipment on the wellhead. Permit, Gas Well Any written license grunted by the Cit\- of Denton for the exploration, drilling, development, and production of natural gas, issued pursuant to rules and regulations of this Subsection. Protected Use. Any residence, church, public park, public libran-, hospital, or school. Residence. A home, abode, or place where an individual is actually living at a specific point in time. A structure or part of a structure containing dwelling units or rooming units, including single-family or two-family houses, multi-family dwellings, boarding or rooming houses, elderly living facilities, apartments, or dormitories. Workover Operation. Fork performed on a well after its completion in an effort to secure production where there has been none, to restore production that has ceased, or to increase production. 35.22. Zoning District Classifications for Gas Well Drilling and Production A. The drilling and production of gas within the corporate limits of the City- shall be permitted by right within the Rural Residential (RD-5), Rural Commercial (R(--), Neighborhood Residential 1 (NR-1), Neighborhood Residential 2 (NR-2), Regional Center Commercial Neighborhood (RC(--- N), Regional Center Commercial Downtown (RC(---D), Employment Center Commercial (E(--- C), Employment Center Industrial (E(---I), Industrial Center Employment (I(---E) and Industrial Center General (IC-G) Zoning Districts, except as provided in subsection B, and subject to compliance with the requirements of this subchapter. B. The drilling and production of gas within the corporate limits of the City- in all other zoning districts shall be permitted only by Specific tTse Permit pursuant to subchapter 3-5.6. Notwithstanding the provisions of Subsection A, approval of a Specific tTse Permit also shall be required for gas well drilling and production on any land located within the 100-rear floodway or within one thousand, two hundred feet (1,200') of the flood pool elevation of Lake Ray Roberts or Lake Lewisville. 1. An application for a Specific tTse Permit for the drilling and production of a gas well shall be filed by the person haying legal authority-. That person is presumed to be the record owner, mineral owner, or the duly authorized agent of either the record owner or the mineral owner. The Chairman of the Development Review Committee (DR(--) may require an applicant to submit information of authority- to file an application. 2. The Chairman of the DRC has the authority- to establish requirements for applications in the Application Criteria Manual. No application shall be accepted for filing until it is complete and the fee established by the City- Council of the City- of Denton has been paid. Incomplete applications shall be returned less a fee for processing determined by the Director of Planning and Development. 3. Approval of a Specific tTse Permit shall be conditioned on compliance with the requirements of this Subchapter. 35.22.4 35.22.4 Required Authorization for Gas Well Drilling and Production in City Limits A. No gas well drilling or production activities may be commenced within the City- limits until the following authorizations have been obtained, in the following sequence: 1. Approval of a Specific tTse Permit, where required by section 3.22.3.8; 2. Approval of a Watershed Protection Permit, where location of any gas well drilling or production activities is proposed on land in the flood fringe or in an ESA, subject to the application requirements and standards of section 3-5.22.-5.A.8; 3. Approval of a Gas Well Development Site Plan, subject to the application requirements and standards of section 3.22.6; and 4. Approval of a Gas Well Permit, subject to the application requirements and standards of Section 3.22.7. B. An application for any authorization for gas well drilling and production listed in Subsection A may be submitted simultaneously with any other listed application, but the applications must be decided in the numerical order listed. No subsequent application shall be determined to be complete and hereby is deemed to be incomplete until all required prior applications have been approved, and no completeness determination shall be made until such prior applications have been decided. C. Approved applications for gas well drilling and production shall expire under the following circumstances: 1. A Specific tTse Permit shall expire according to its terms; 2. A Watershed Protection Permit shall expire with the expiration of a Gas Well Development Site Plan. 3. A Gas Well Development Site Plan shall expire unless a complete application for a gas well permit has been filed within one (1) year of the date of approval of the site plan. 4. A Gas Well Permit shall expire if gas well drilling activities have not commenced within six (6) months of the date of approval of the Gas Well Permit. 5. The expiration of any subsequent application shall result in the expiration of all prior approved applications. D. Approved applications for gas well drilling and production may not be extended prior to expiration. Following expiration of an approved application for gas well drilling and production, a new application must be submitted, which shall be subject to all DDC standards and procedures then in effect. E. Each authorization identified in this Section shall be construed as an exercise of the City's zoning powers, pursuant to City Charter, Tex. Loc. Gov't Code Chapter 211 and the provisions of subchapter 353 of the Denton Development Code. F. The authorizations required by this Subchapter are in addition to, and not in lieu of, any permits that may be required by any other provision of the Denton City- code or by any other government agency. 35.22.5 A. The drilling and production of gas wells within the City limits or the City's ETJ shall include the following standards. 1. Separation standards. The following requirements apply only within city- limits. a. No gas well drilling or production area may be located within one thousand feet (1,000') of any protected use, or freshwater well currently in use at the time a complete application for a Gas Well Development Site Plan is filed, or within one thousand feet (1,000') of any lot within a previously platted residential subdivision where one (1) or more lots have one (1) or more structures. b. Except where more stringent separation distances are specified, the minimum separation distance between gas drilling or production, and all other uses or features other than those listed in 35.22.5.A. 1.a, shall be five hundred feet (500'). c. The minimum separation requirement established in 35.22.5. A.1.a and b above may be reduced via the granting of a variance by the Zoning Board of Adjustment. Alternatively, all the property- owners of the affected uses, all owners of property- with a freshwater well currently in use at the time a complete application for a gas well development site plan is filed, and all owner of lots in a previously platted residential subdivision where one (1) or more lots have one (1) or more structures within the reduced separation area, may consent to the reduction via a notarized waiver, if the notarized waiver is attached to the permit application, in which case no variance shall be required. Except that the minimum separation distance may not be reduced to less than five hundred feet (500'). d. Separation distances shall be measured from the boundary of the drilling and production areas identified on the Gas Well Development Plat or Gas Well Development Site Plan, in a straight line, without regard to intervening structures or objects, to the closest exterior point of any structure occupied by a Protected tTse, or freshwater well currently in use at the time a complete application for a gas well development site plan is filed, or the closest lot line of any undeveloped lot within a previously platted residential subdivision where one (1) or more lots have one (1) or more structures. 35.22.5.A.2 e. Permanent weatherproof signs reading "DANGER NO SMOKING ALLOWED" in a minimum of four inch (4") lettering shall be posted at the entrance of each drill site and operation site. The sign shall include the development or operating company that is currently responsible for the gas well plat or site plan, the Railroad Commission Well Identification Number and the American Petroleum Institute nrunber for the well, the phone niunber for emergency services (911), the number for the operator, and any other well designation required by the Railroad Commission in two inch (2'~ lettering. n. All well heads, storage tanks, separation facilities or other mechanical equipment located within one thousand feet (1,000') of any protected use, or any lot within a previously platted residential subdivision where one (1) or more lots have one (1) or more structures, or within five hundred feet (500') of all other uses or features other than those listed in 33.22.3. A.La, and not within a floodplain, shall be screened from such uses, lots or features with an eight-foot (8') high or higher opaque decorative masonry- wall, if the use, lot or feature preexisted the commencement of gas well drilling. 35.22.5.A.3 d. Internal combustion engines with mufflers may be used in drilling operations. Only electric motors shall be used for the purpose of pumping gas wells. k Except in the case of an emergency, gas well flaring shall only be conducted during day-time hours. 1 Gas well fracturing may only be conducted during day-time hours 3522.5.A.4 a. An operator is allowed to construct, use, and operate such storage equipment and separation equipment as shown on the approved Gas Well Development Site Plat or Gas Well Development Site Plan, except that permanent storage equipment and separation equipment may not exceed eight (8) feet in height. b. The use of centralized tank batteries is permitted as shown on the applicable Gas Well Development Plat or Gas Well Development Site Plan. 35.22.5.A.6.p No gas well permit will be issued for any well where the center of the well at the surface of the Revised p ground is located within one thousand (1,000) feet of an existing fresh water well intended for domestic use. 35.22.5.A.8.b A Watershed Protection Permit containing an ESA assessment of the drill site shall be submitted to the DRC by the Watershed Protection Department and/or the F~'loodplam Administrator for all applicable ESA's prior to the approval of a Gas Well Development Plat. 35.22.5.A.8.c.iv Tree Mitigation funds shall be paid prior to final approval of a Gas Well Development Plat or Gas Well Development Site Plan in a Flood Fringe or other ESA. 35.22.5.A.8.f No more than ten (10) percent of the floodplain, within the limits of the Gas Well Development Plat or Gas Well Development Site Plan, may be filled. 35.22.5.C Noise Management Standards The following standards apply to gas well drilling and production in the Citv-limits. 1. prior to the issuance of a Gas Well Drilling and Operating Permit, the Operator shall establish and submit to the City, a continuous sevenh--two (72) hour pre-drilling Ambient Noise Level measured three hundred (300) feet from the boundaries of the gas well drilling or production site. The seventy--two (72) hour time span shall include at least one (1) twenty--four (24) hour reading during either a Saturday or Sunday. 2. No gas well drilling or production, re-drilled or any equipment shall be operated at any gas well drilling or production site within the City- in such a manner so as to create any noise that exceeds seventy- five decibels (73dB) when measured three hundred (300) feet from the boundaries of the gas well drilling or production site. 3. The three hundred-foot 300' distance shall be measured from the boundaries of the as well drilling or production site depicted on the Gas Well Development Plat or Gas Well Development Site Plan, in a straight line, without regard to intervening structures or objects. 4. If the ambient noise level that was established and submitted to the City- in accordance with 35.22.5.C.1 is higher than seventy- five decibels (75dB), the noise generated from the gas well drilling or production site mar not exceed the established ambient noise level by more than five decibels (5dB) during daytime hours and three decibels (3dB) during nighttime hours, except as provided by 35.22.5.C.5 below. -5. The following adjustments to the noise standards as set forth above may be permitted intermittently during daytime hours on1A-, except in the case of an emergency: Maximum Permitted Increase above 75d: or Maximum Duration established ambient, if ambient exceeds 75dB (minutes)* 10 dB minutes 15dB 1 minute 20dB Less than 1 minute C ~~e minutes during anyone hoary 6. Acoustical blankets, sound walls, mufflers or other alternative methods as approved by the City may be used to ensure noise limitation compliance. All soundproofing shall comply with accepted industry- standards and be subject to approval by the City-'s Fire Department. 7. The sound level meter used in conducting noise evaluations shall meet the American National Standard Institute's Standard for sound meters or an instrument and the associated recording and analyzing equipment which will provide equivalent data. 8. The noise level generated during gas drilling operations shall be continuously monitored to ensure compliance with the noise limitation standards established herein. The cost of such monitoring shall be borne by the Operator. The information from this monitoring shall be provided to the City- upon request, in a format that is acceptable to the City-. Failure to provide this information within 48 hours of the request is considered a violation of this subchapter. 9. If a complaint is received after gas well drilling operations by either the Operator or the Cit\-, the Operator shall immediately upon receipt of the complaint, continuously monitor the exterior noise level generated by the gas well drilling or production for a seventy--two (72) hour period and take the action necessary- to abate the violation, if a violation exits. 10. In the event of a violation of this subsection, the City- may immediately issue a citation to the Operator for the violation. 35.22.6 Gas Well Development Site Plan and Watershed Protection Permit A. Applicability 1. A Gas Well Development Site Plan shall be approved for any hind within the Cit\- limits before a Gas Well Permit may be issued or any gas well drilling or production activities may occur. Approval of a Gas Well Development Site Plan authorizes the processing of a complete application for a Gas Well Permit. 2. A Watershed Protection Permit shall be approved prior to approval of any Gas Well Development Site Plan, Gas Well Development Plat, or Gas Well Permit that includes land in any floodplain or ESA within the corporate limits or ETJ of the city-. Approval of a Watershed Protection Permit authorizes the processing of a complete application for a Gas Well Development Site Plan or Gas Well Development Plat, as the case may be, that includes land in a floodplain or ESA. B. Application Requirements - G Well Development Site Plan 1. An application for a Gas Well Development Site Plan shall not be determined to be complete or deemed complete until: a. any required Specific tTse Permit has been approved by the City- Council; b. a complete application for a Watershed Protection Permit, where required, has been filed with the City- pursuant to this subchapter. Approval of an application for a Gas Well Development Site Plan shall be conditioned on approval of an applicable Watershed protection Permit, and anv conditions imposed with approval of the Watershed Protection Permit shall be deemed incorporated into the conditions of approval for the Gas Well Development Site Plan. 3. Approval of a Gas Well Development Site Plan authorizes the holder of the approved Site Plan to apply for a Gas Well Permit. 3. An application for a Gas Well Development Site Plan, in addition to those items set forth in Subsection 1, shall: a. Clearly delineate the boundaries of the gas well drilling or production area with metes and bounds description, and list the exact acreage of the area. All gas well drilling and production activities shall be limited to this area. b. Identify all ingress and egress points. C. Show the location of all floodplains and ES As. d. Show the location of all freshwater well currently in use at the time of commencement of drilling activity within one thousand feet (1,000') of the gas well drilling and production area. e. Show the location of all structures with a protected use within one thousand feet (1,000') of the gas well drilling and production area; f. Identifo- and show proposed method of erosion and sediment control; g. Identify the location of proposed lease lines; h. Identifr the location of all proposed gas wells, mud pits, ponds, and mechanical equipment; i. Label distances between gas wells and property lines; j. Provide typical well site schematics showing layout during drilling and upon completion of drilling; k. Show location of all proposed underground pipelines. As-built drawings shall be filed with the City- (in a digital form as specified by the Cit\-, and as a condition of maintaining the annual operating permit). All pipelines proposed in public rights- of-way shall require a Right-of-Way tTse Agreement. The City- :Nlankger shall have the authority- to enter into a Right of Wav tTse Agreement; 1. Show the location of all pipelines and identify if pipelines connect with a Gas Distribution System; m. Identify the height, size, bulk and location of all structures, closed-loop systems, dehydrators, parking areas, securitt- cameras, lighting, tanks, tank batten-, drilling rigs, separators, compressors, perimeter walls, utilities, and all other features ()r objects contemplated within the boundaries of the gas well drilling or production area; n. Provide a Tree Protection Plan demonstrating compliance with the City's Tree Preservation Code; o. Provide a Signkge Plan, complying with all requirements of the City- for both the Drill Site and pipelines; N\lien applicable, a Screening, Fencing, and Landscape Plan, detaih 7 with all landscape and screening measures to be taken to adequately irrigate all landscaping including the water source for irrigation and the proposed efforts to replace dead or dying screening vegetation; and q. Any other information deemed necessary by the Director of Planning and Development to verifr compliance with these standards. C. Processing of Applications 1. An application for a Gas Well Development Site Plan shall be processed in the manner for an application for a gas well development plat, as provided in section 3.16.19 of the DDC. 3. A watershed protection permit shall be processed in accordance with the following: a. All applications for Watershed Protection Permits shall be filed with the Department, who shall immediately forward all applications to the DRC for review. Incomplete applications shall be returned to the applicant, in which case the City- shall provide a written explanation of the deficiencies if requested by the applicant The City- shall retain a processing fee determined by the City- Council. The City- may return any application as incomplete if there is a dispute pending before the Railroad Commission regarding the determination of the operator. No application shall be deemed accepted for filing until the application is complete. b. The DRC may attach such conditions to approval of a Watershed Protection Permit as are necessat to assure that the requirements of Subsection 35.33.5 are met. c. Each Watershed Protection Permit approved by the DRC shall: i. Identifothe none of each well subject to the permit; ii. Specify the date on which the Permit was issued; in. Incorporate by reference all applicable standards of approval; and V. Incorporate by reference all applicable conditions of approval. d. The applicant may appeal the denial or conditional approval of a Watershed Protection Permit on grounds pertaining to the standards in Subsection 35.22.5.A.6 and 35.22.5.A.8 to the Planning and Zoning Commission within ten (10) calendar days of the decision by the DRC. The Commission shall decide the appeal applying the standards made applicable to the permit by Subsection 35.22.5.A.6 and 35.22.5.A.8. e. The applicant may file a petition for review pursuant to Subsection 35.22.5.A.6 and 35.22.5.A.8 on grounds therein specified to the City- Council within ten (10) calendar days of the decision by the DRC. The Council shall decide the petition based upon the criteria in Subsection 35.22.5.A.6 and 35.22.5.A.8. D. Criteria for Approval 1. No gas well development site plan shall contain more than one (1) drilling or production site, and the area shall not be greater than five (5) acres in size. Drilling of a different gas well within the area subject to an approved Gas Well Development Site Plan shall require an amendment to the site plan application. All standards in section 35.33.5 shall be met. All conditions attached to prior approvals shall be incorporated in the approval of the Gas Well Development Site Plan. 3. The following standards apply to an application for a Watershed Protection Permit: a. For land inside the City, all conditions unposed by any applicable Specific tTse Permit or a Planned Development District for the land subject to the Watershed Protection Permit. b. Standards in Subsection 35.335(A)6 and 35.335(A)8. E. Expiration 1. A gas well development site plan shall automatically expire one (1) year from the date of approval, unless a gas well permit has been issued by the City- for the same site. a. A gas well development site plan shall not be extended. The applicant may submit a new Gas Well Development Site Plan application for review and approval in accordance with all applicable requirements of the DDC then in effect. b. If the Gas Well Development Site Plan expires, then all permits approved prior to or simultaneous with the site plan shall likewise expire on the sane date. 2. A Watershed Protection Permit shall expire with the expiration of the gas well development site plan and may not be extended prior to expiration. 35.22.7.F F. Applications for Gas Well Permits shall be in accordance with the following: 1. shall be in writing; 2. shall be on forms provided by the City; 3. shall be signed by the Operator; 4. shall include the application fee; -5. shall include a copy of the applicable Specific tTse Permit, Planned Development Zoning District, or Gas Well Development Site Plan; and; 6. shall include the information required by the Application Criteria Manual unless such information has been previously provided to the City. 35.22.9.D The security- instrument may be provided for an individual well, or for multiple wells on a single pad site. The amount of the security- shall be determined by the City- Engineer, with due regard to the costs and risks to be secured in subsection A, above, either on a per-application basis, or as administratively established and amended in the Application Criteria Manual, in the minimum amount of $ 0,000 for any single well, or $100,000 for multiple wells on the same pad site. 35.22.10 A. All applications for Gas Well Permits shall be filed with the Department who shall immediately forward all applications to the DRC for review. Incomplete applications shall be returned to the applicant, in which case the City- shall provide a written explanation of the deficiencies if requested by the applicant. The City- shall retain a processing fee determined by ordinance. The City- may return any application as incomplete if there is a dispute pending before the Railroad Commission regarding the determination of the operator. No Gas Well Permit shall be approved under this Section unless the property- owner or applicant first receives approval o£ 1. a Specific tTse Permit or Planned Development District, where required; 2. a Watershed Protection Permit, where applicable; and 3. a Site Plan. Denial or conditional approval of any such applications shall be grounds for denial or conditional approval of the Gas Well Permit. B. The DRC shall review each application within 1-5 days after acceptance for filing and shall determine: 1. whether the application includes all of the information required by this Subchapter; 2. whether the application is in conformance with the applicable Gas Well Development Site Plan, applicable Specific tTse Permit or Planned Development Zoning District; and 3. whether the application is in conformance with the insurance and security- requirements set forth in Subsection 3.22.8 and Subsection 3.22.9. C. The Fire Marshal shall review the application and the written report of the DRC and shall issue the Gas Well Permit after receiving the DRC report within 10 days unless he determines that the application is incomplete or that the application is not in conformance with the applicable Gas Well Development Site Plan, applicable Specific tTse Permit, Planned Development Zoning District. The Fire Marshal may employ a technical advisor under the Fire Code. 35.22.10.F.8 Incorporate, by reference, the conditions of the applicable Watershed Protection permit, Gas Well Development Site Plan, and applicable Specific tTse Permit or Planned Development Zoning District; 35.22.10.1 Expiration of Gas Well Permit 1. A Gas Well Permit is valid for six (6) months and shall automatically expire, unless gas well drilling activities have commenced prior to expiration. If gas drilling activities have commenced tinder a valid permit, the permit shall be renewed annually, subject to all applicable standards and the payment of all associated fees. 2. If a Gas Well Permit has been issued by the City- but gas drilling activities have not commenced prior to the expiration of the permit, the permit shall not be extended; however, the operator may reapply for a new permit, subject to all requirements of the DDC then in effect. 3. If gas well drilling has commenced prior to the expiration of the gas well permit, the permit shall continue, and operator shall be subject to an Annual Inspection and Administration fee. 4. If gas well drilling or production activities have commenced following issuance of a gas well permit before the expiration date, the approved site and drilling and production activities shall be subject to inspections by the City- to ensure compliance with terms and conditions of the permit and all applicable standards of the DDC. 35.22.12.B All residences within one thousand (1,000) feet of a well shall be notified a minimum of fort--eight hours prior to fracturing of a wellhead. 35.22.13 A. An operator may submit an application to the Fire Marshal to amend existing gas well permits to: 1. commence drilling from a new drill site that is not shown on (or incorporated by reference as part ot) the existing permit; 2. to relocate a drill site or operation site that is shown on (or incorporated by reference as part of) the exis ting permit; or 3. to otherwise amend the existing permit, for land subject to the same approved Gas Well Development Site Plan. 35.22.13.B.4 4. Such additional information as is reasonably required by the Fire Marshal to demonstrate compliance with the applicable Development Site Plan, applicable Specific tTse Permit or Planned Development Zoning District; and 35.22.13 D. If the activities proposed by the amendment are not materially different from the activities covered by the existing Gas Well Permit or Gas Well Development Site Plan, and if the proposed activities are in conformance with the applicable Watershed Protection Permit, Gas Well Development Site Plan, applicable Specific tTse Permit or Planned Development Zoning District, then the Fire Marshal shall approve the amendment within 10 days after the application is filed. E. If the activities proposed by the amendment are materially different from the activities covered by the existing gas well permit, and if the proposed activities are in conformance with the applicable Watershed Protection Permit, Gas Well Development Plat, Gas Well Development Site Plan, applicable Specific tTse Permit or Planned Development Zoning District, then the Fire Marshal shall approve the amendment within 30 days after the application is filed. If, however, the activities proposed by the amendment are materially different or, in the judgment of the Fire Marshal, might create a risk of imminent destruction of property- or injun- to persons that was not associated with the activities covered by the existing permit or that was not otherwise taken into consideration by the existing permit, the Fire Marshal may require the amendment to be processed as a new gas well permit application. 35.22.15.B The Fire Marshal or the oil and gas inspector shall have the authority- to enter and inspect any premises covered by the provisions of this subchapter, to determine compliance with its provisions, and all applicable laws, rules, regulations, standards, or directives of any local state or federal 10 authority-. 35.22.17.A The Fire Marshal and the oil and gas inspector are authorized and directed to enforce this Subchapter and the provisions of any Gas Well Permit. N-henever necessary to enforce any provision of this Subchapter or a Gas Well Permit, or whenever there is reasonable cause to believe there has been a violation of this Subchapter or a Gas Well Permit, the Fire Marshal or oil and gas inspector, mar enter upon any property- covered by this Subchapter or a Gas Well Permit at any reasonable time to inspect or perform any duty- imposed by this Subchapter. If entry- is refused, the City- shall have recourse to even-y- remedy provided by law and equity- to gain entry. DDC 35.23 Improvement (Public or Private). Any physical man-made addition which becomes put of, is placed upon, or is affixed to any real property-, or any put of such addition, including but not limited to, any building, structure, bridge, work of art, puking facility-, public facilit\-, fence, gate, wall, streets and all related appurtenances, utilities, pedestrianways, bikeways, equestrian trails, landscaping or irrigation, whether involving the subdivision of land or not. Project. A specific development on an identifiable parcel of land. Project improvements. Site improvements and facilities that are planned and designed to provide for a particular development project and that are necessan-y for the use and convenience of the occupants or users of the project. Project site. That portion of any lot, parcel, tract, or combination thereof that encompasses all phases of the total project proposal. di O r nance _ 2009 098 - - , Section 2.4 «rhi Ordinance Add the following fey schedule to Ordinance 20005-237: 20005-237 A i i F ct v ty ee The following fees shall be charged for the first two (2) reviews Gas cll StTP Rcv iew $12,500 Gas cll Development Site Plan $7,00 Gas Well Development Plat Review ~,000 Gas Well Plat/Site Plan Amendment Each additional two reviews $-5! ~1 i0 The following fees shall be charged annually, per gas well Annual Inspection and Administration Pee (within (-ity-) $3,200 Annual Inspection and Administration Pee (within ETI) $1,800 The following fees shall be charged per each application I -,,uisfer of uper,irion $7oo W atershed Protection Permit $3,000 Gas Well Permit $-5-50 Fracture /Drill Pond $~-50 Compressor Facility- Permit $~-50 11 This page left blank intentionally . AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Human Resources ACM: George C. Campbell, City Manager SUBJECT Consider and confirm the re-appointment by the City Manager of Darhyl Ramsey to the Civil Service Commission. BACKGROUND Darhyl Ramsey's second term expires in August of 2010; however, he is eligible to serve another term. In compliance with Chapter 143.006 (b) of the Texas Local Government Code, the municipality's chief executive (City Manager) shall appoint a member to serve a three-year term and the governing body (City Council) shall confirm this appointment. RECOMMENDATION The City Manager has elected to re-appoint Darhyl Ramsey to the Civil Service Commission. PRIOR ACTION REVIEW No prior action or review. FISCAL INFORMATION This item has no fiscal impact. Attachment: Bio for Darhyl Ramsey Respectfully submitted: r r k11- Carla J. ine Director of Human Resources Darhyl S. Ramsey Dr. Darhyl Ramsey is a professor of music education at the University of North Texas. He holds degrees in music education from Carson-Newman College (BM) and the University of Iowa (MA, Ph.D.). He is in his 24t year at the University of North Texas. Prior to coining to Denton, he taught at UT-San Antonio and the Pennsylvania State University. He was a band director in the public schools in Virginia. He has been an elder at St. Andrew Presbyterian church where he is a member of several committees. Dr. Ramsey is a member of the Rotaiv Club of Denton-South and seines the district as the Assistant District Governor for the Denton area. He just completed a second term as the Seivices Chair where he is involved in distributing funds for community-based charitable organizations and international projects. He is a graduate of Leadership Denton and is a member of the Steering Committee of Leadership Denton for 2007- 2011. He seines as the chair for the Interfaith Ministries board Work Contact Information College of Music Box 311367 University of North Texas Denton, TX 76203 (940) 565-3749 (940) 565-2002 (Fax) Darhvl.Ramsev,dunt.edu Home Contact Information 2500 Potomac Pkwv. Denton, TX 76210 (940) 566-3170 (940 380-1899 (fax) (940) 206-6283 (cell) d.ramsey2 cr'wenizon.net AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Human Resources CM/ ACM: George C. Campbell, City Manager SUBJECT Consider approval of a resolution of the City of Denton, Texas approving a revised city policy regulating Medical Examinations for the City of Denton employees; and declaring an effective date. BACKGROUND The Human Resources (HR) department is responsible for ensuring City policies are up-to-date and are in compliance with local, federal, and state laws. To that end, HR reviews policies from time to time, with the assistance of the Policy Review Committee. The Policy Review Committee is comprised of approximately 20 employees at various levels representing different departments/divisions. The members are expected to distribute the proposed changes to individuals in their area and solicit comments, questions, and concerns regarding the proposed changes. Policies are typically comprised of two sections - a "Policy Statement" which is approved by City Council and "Administrative Procedures" which are approved by the City Manager. So any time changes are required in the "Policy Statement", the policy will be sent to the City Council for review and approval. One of the policies needing revisions is policy no. 102.10 - Medical Examinations. Section III needed to be updated to reflect the current statute (Chapter 143 of the Texas Local Government Code versus Vernon's Civil Statutes, Article 1269p). Another change divides the policy into two sections. As originally written, all the language fell under a "Policy Statement." As a result, all changes (even minor changes) have to be approved by the City Council. After reviewing the policy closer, it seems more appropriate to have some of the language under an "Administrative Procedures" section that can be changed by the City Manager. Members of the employee Policy Review Committee support the proposed changes. OPTIONS Approve the policy as proposed; not approve the policy; or make modifications. RECOMMENDATION Staff recommends that the City Council amend the Medical Examinations Policy as drafted. I PRIOR ACTION/REVIEW (Council, Boards, Commissions) There has been no prior action or review on this agenda item. FISCAL INFORMATION There is no fiscal impact on the City of Denton associated with this recommendation. EXHIBITS Resolution Proposed revised City of Denton Medical Examinations Policy (No. 102.10) Respectfully stnitted: Carla Haggmark-Romine Director of Human Resources RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS APPROVING A REVISED CITY POLICY REGULATING MEDICAL EXAMINATIONS OF CITY OF DENTON EMPLOYEES; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas has adopted a policy relating to medical examinations for its employees; and WHEREAS, the Director of Human Resources has presented a revised policy regarding medical examinations of City of Denton employees; and WHEREAS, the City Council, desires to adopt such policy as an official policy regarding employment with the City; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. Policy number 102.10 "Medical Examinations" of the Personnel Policies and Procedure Manual of the City of Denton, a copy of which is attached hereto and incorporated by reference herein, is hereby approved as official policy of the City of Denton, Texas, and replaces former policy number 102.10 within the Policies and Procedure Manual. SECTION 2. The foregoing policy attached hereto and made a part hereof shall be filed in the official records with the City Secretary. SECTION 3. This resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY, APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Z:IOw D=wmAAl o1u i..A10 math®1 examinatiaw palicY.d. CITE' OF DENTON PAGE I OF -2 POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE SECTION: HUMAN RESOURCES REFERENCE NUMBER: 102.10 SUBJECT: EMPLOYEE APPOINTMENT INITIAL EFFECTIVE DATE: 08/21/84 TITLE: MEDICAL EXAMINATIONS LAST REVISION DATE: 07/20/2010 POLICY STATEMENT: It is the policy of the City of Denton to require certain employees, as determined by the job specification, to be examined by a physician under certain circumstances described below. No one who is given a medical examination shall be employed unless the examining physician certifies that the person meets the minimum standards of physical fitness required for the position. Medical examinations may be used to ensure that employees remain in good physical condition in order to perform the demands of the job. As a condition of employment, and based upon job requirements, all prospective or transferring employees may be required to pass a physical examination administered by a physician designated by the City of Denton. Employees may be required to have a physical examination on other occasions, such as in-house advancement, or whenever the employee's supervisor determines that a potential health problem may prevent an employee from performing his/her job duties. ADMINISTRATIVE PROCEDURES: 1. CONDITIONS OF EMPLOYMENT A. Physical examinations required by the City of Denton for promoted, transferred, or current employees shall be paid for by the City of Denton. Time spent by an employee in waiting for and receiving a physical examination shall be considered hours worked for pay purposes. B. Supervisors are responsible for notifying the Human Resources Department of any positions which place physical or environmental demands on the employee. Such positions will be reviewed by the Human Resources Department in order to evaluate and determine the type and extent of medical examinations required prior to job performance. II. PAYMENT OF MEDICAL EXAMINATIONS A. Medical examinations paid for by the City of Denton are the property of the City of Denton and shall be confidential. A copy of the medical examination report shall be available to the HR/POLICY/102.10 PAGE 2 OF 2 ruL1UY/ADM1,N1S'1RA11VE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: MEDICAL EXAMINATIONS REFERENCE NUMBER: 102.10 employee upon written request. B. When the City of Denton requires a physical examination or physician's report concerning an illness or injury suffered by an employee, the examination shall be at the expense of the City of Denton and performed by a physician selected by the City of Denton. C. Such examinations may be authorized by the Director of Human Resources or his/her designee only. Employees who are not satisfied with the physician's determination may submit a report from a physician of their own choosing and at their own expense. In the event of conflicting opinions, the City of Denton may employ a third physician to examine the employee. The City of Denton will pay for this third physical examination. D. The reports of the physicians involved, along with the demands of the job and the employee's ability to perform the job duties, will be the basis for a decision. III. CIVIL SERVICE In the case of rejection of a civil service applicant for appointment, or for promotion, Civil Service proceedings governed by Chapter 143 of the Texas Local Government Code shall apply if the applicant wishes to challenge the rejection. The Texas Local Government Code is available for review at the City of Denton Public Library and departments of Fire, Police, and Human Resources. I IR/POLICY/102. t0 This page left blank intentionally . AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Human Resources CM/ ACM: George C. Campbell, City Manager SUBJECT Consider approval of a resolution of the City of Denton, Texas approving a revised city policy regulating Payroll Deductions for the City of Denton employees; and declaring an effective date. BACKGROUND The Human Resources (HR) department is responsible for ensuring City policies are up-to-date and are in compliance with local, federal, and state laws. To that end, HR reviews policies from time to time, with the assistance of the Policy Review Committee. The Policy Review Committee is comprised of approximately 20 employees at various levels representing different departments/divisions. The members are expected to distribute the proposed changes to individuals in their area and solicit comments, questions, and concerns regarding the proposed changes. Policies are typically comprised of two sections - a "Policy Statement" which is approved by City Council and "Administrative Procedures" which are approved by the City Manager. So any time changes are required in the "Policy Statement", the policy will be sent to the City Council for review and approval. One of the policies needing revisions is policy no. 106.03 - Payroll Deductions. This policy is being updated to clarify when deductions will be taken from employees' pay checks. A second change is reflected in section V. This section is being added to clarify what employees should do if they have questions about their deductions or believe their check was subject to improper deductions. The policy before you has also been divided into two sections. As originally written, all the language fell under a "Policy Statement." As a result, all changes (even minor changes) have to be approved by the City Council. After reviewing the policy closer, it seems more appropriate to have some of the language under an "Administrative Procedures" section that can be changed by the City Manager. Members of the employee Policy Review Committee support the proposed changes. OPTIONS Approve the policy as proposed; not approve the policy; or make modifications. RECOMMENDATION Staff recommends that the City Council amend the Payroll Deductions Policy as drafted. I PRIOR ACTION/REVIEW (Council, Boards, Commissions) There has been no prior action or review on this agenda item. FISCAL INFORMATION There is no fiscal impact on the City of Denton associated with this recommendation. EXHIBITS Resolution Proposed revised City of Denton Payroll Deductions Policy (No. 106.03) Respectfully sunitted: Carla Haggmark-Romine Director of Human Resources RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS APPROVING A REVISED CITY POLICY REGULATING PAYROLL DEDUCTIONS FOR THE CITY OF DENTON EMPLOYEES; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas has adopted a policy relating to payroll deductions for its employees; and WHEREAS, the Director of Human Resources has presented a revised policy regarding payroll deductions for City of Denton employees; and WHEREAS, the City Council, desires to adopt such policy as an official policy regarding employment with the City; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES SECTION 1. Policy number 106.03 "Payroll Deductions" of the Personnel Policies and Procedure Manual of the City of Denton, a copy of which is attached hereto and incorporated by reference herein, is hereby approved as official policy of the City of Denton, Texas, and replaces former policy number 106.03 within the Policies and Procedure Manual. SECTION 2. The foregoing policy attached hereto and made a part hereof shall be filed in the official records with the City Secretary. SECTION 3. This resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 2010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY R BY: Z:iUs DoassoeittaVteso]W3mia5l04payroll d d-6.. policy.duc CITE' OF DENTON PAGE I OF 3 POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE SECTION.: HUMAN RESOURCES REFERENCE NUMBER: 106.03 SUBJECT: WAGE AND SALARY PLAN INITIAL EFFECTIVE DATE: 10/30/84 TITLE: PAYROLL DEDUCTIONS LAST REVISION DATE: 07/20/2010 POLICY STATEMENT: The City of Denton's policy on payroll deductions is to limit deductions to taxes, insurances, retirement, or specific approved voluntary contributions. Payroll deductions for the City may be divided into two categories: 1) mandatory and 2) employee authorized. The mandatory category includes taxes and retirement. The employee-authorized category includes, but is not limited to, City insurance premiums, excess medical and dependent care, credit union shares or payments, United Way contributions, and extra federal income tax withholdings. ADMINISTRATIVE PROCEDURES: 1. MANDATORY DEDUCTIONS A. Taxes, including but not limited to, F.I.C.A. and federal withholding taxes. B. Contributions to authorized retirement programs except for employees not meeting requirements for eligibility. C. Any court ordered payment. II. OPTIONAL PAYROLL DEDUCTIONS WITH INDIVIDUAL AUTHORIZATION FOR ALL REGULAR EMPLOYEES Below are examples of deductions taken from employee's paychecks and the frequency of the deduction. This is a non-exclusive list. A. Payroll Deductions Taken the First and Second Payroll of Each Month 1. Benefit premiums and contributions for employee and dependent coverage by City- authorized plans that are not paid for by the City. Premiums and contributions will be deducted from the first and second payroll of each month, and shall provide employees with coverage for that corresponding month. For months that include a third payroll, benefit deductions may not be taken. HR/POLICY/106.03 PAGE 2 OF 3 x,~1vivuivi511KArivk, rKUUEDUKE/ADMINISTRATIVE DIRECTIVE (Continued) TTTLE: PAYROLL DEDUCTIONS REFERENCE NUMBER: 106.03 Should an employee terminate employment prior to the end of the month, elected health, paycheck. However, in cases where the final paycheck is not sufficient to cover the premiums and contributions, or where the applicable deduction is not made from the final check, the former employee shall be responsible for ensuring the remaining premiums and contributions are paid. If the former employee does not pay the remaining premiums and contributions, any benefits paid on behalf of the employee or any dependents shall be recouped by the appropriate payor. 2. Credit Union 3. Excess Medical and Dependent Care B. Payroll Deductions Taken From Each Payroll in the Calendar Year 1. Contributions to United Way 2, Contributions to any 457 Deferred Compensation Plan 3. Extra federal income tax withholding III. SEASONAL/TEMPORARY Payroll deductions for seasonal and temporary employees will include F.I.C.A. and federal income tax withholdings. IV. CANCELLATION OF DEDUCTIONS If anemployee desires to cancel deductions from payroll, or change the number of dependents for any purpose, the Human Resources Department must be contacted and appropriate forms completed to properly execute this transaction. V. REPORTING ERRORS If an employee has questions about deductions from his/her pay or he/she believes his/her wages have been subject to any improper deductions, the employee should report his/her concerns to his/her supervisor or timekeeper immediately. If a supervisor or timekeeper is unavailable or if the employee has not received a satisfactory response within three (3) business days after reporting his/her concern, he/she should contact Human Resources or Payroll. If the employee. I- "OLICY/106.03 PAGE 3 OF 3 rV1.11.VAIPIVUININtHNJ VE rROUEDURE ADMINISTRATIVE DIRECTIVE (Continued nTLE: PAYROLL DEDUCTIONS REFERENCE NUMBER: 106.03 has not received a response from Human Resources or Payroll within five (5) business days and is unsure who to contact to correct the problem, he/she should immediately contact the City Manager's Office. HR/POLICY/106.03 AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Human Resources CM/ ACM: George C. Campbell, City Manager SUBJECT Consider approval of a resolution of the City of Denton, Texas approving a revised city policy regulating Overtime for the City of Denton employees; and declaring an effective date. BACKGROUND The Human Resources (HR) department is responsible for ensuring City policies are up-to-date and are in compliance with local, federal, and state laws. To that end, HR reviews policies from time to time, with the assistance of the Policy Review Committee. The Policy Review Committee is comprised of approximately 20 employees at various levels representing different departments/divisions. The members are expected to distribute the proposed changes to individuals in their area and solicit comments, questions, and concerns regarding the proposed changes. Policies are typically comprised of two sections - a "Policy Statement" which is approved by City Council and "Administrative Procedures" which are approved by the City Manager. So any time changes are required in the "Policy Statement", the policy will be sent to the City Council for review and approval. One of the policies needing revisions is policy no. 106.04 - Overtime. The first change is reflected in the Policy Statement. In January of 2009, the City Manager and Executive Team eliminated the accumulation of compensatory time in lieu of paid overtime for non-exempt employees (eligible for overtime for hours worked over 40 in a work week). Compensatory time is a liability on the books and costs the City more in the future (since typically an employee's pay is higher when the compensatory time is paid out than when it is accrued). The language was changed in the "Administrative Procedures" section, but was overlooked in the "Policy Statement." The policy before you removes any reference to compensatory time in the "Policy Statement." The second change is reflected in the Administrative Procedures section (LD.) and clarifies that "vacation in lieu of sick" is not considered time worked for overtime eligibility. Members of the employee Policy Review Committee support the proposed changes. OPTIONS Approve the policy as proposed; not approve the policy; or make modifications. RECOMMENDATION Staff recommends that the City Council amend the Overtime Policy as drafted. PRIOR ACTION/REVIEW (Council, Boards, Commissions) There has been no prior action or review on this agenda item. FISCAL INFORMATION There is no fiscal impact on the City of Denton associated with this recommendation. EXHIBITS Resolution Proposed revised City of Denton Overtime Policy (No. 106.04) Respectfully stnitted: Carla Haggmark-Romine Director of Human Resources RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS APPROVING A REVISED CITY POLICY REGULATING OVERTIME FOR THE CITY OF DENTON EMPLOYEES; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas has adopted a policy relating to overtime for its employees; and WHEREAS, the Director of Human Resources has presented a revised policy regarding overtime for City of Denton employees; and WHEREAS, the City Council, desires to adopt such policy as an official policy regarding employment with the City; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. Policy number 106.04 "Overtime" of the Personnel Policies and Procedure Manual of the City of Denton, a copy of which is attached hereto and incorporated by reference herein, is hereby approved as official policy of the City of Denton, Texas, and ;replaces former policy number 106.04 within the Policies and Procedure Manual SECTION 2. The foregoing policy attached hereto and made a part hereof shall be filed in the official records with the City Secretary. SECTION 3. This resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: ;rzllz-<~~' Z:[Our Dacumenta~Resul;uionall9lavertimc pallry.doc CITY OF DENTON PAGE 1 OF 3 POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE SECTION: HUMAN RESOURCES REFERENCE NUMBER: 106.04 SUBJECT: WAGE AND SALARY PLAN INITIAL EFFECTIVE DATE: 11/19/85 TITLE: OVERTIME LAST REVISION DATE: 07/20/2010 POLICY STATEMENT: The City of Denton requires employees to work overtime when necessary and as requested by the supervisor. Overtime is defined as authorized time worked which exceeds 40 hours per workweek. Overtime for Fire Civil Service employees will be calculated based on the maximum number of hours for the declared work period. Employees who work overtime without authorization from their immediate supervisor will be subject to disciplinary action. Overtime on any job shall be allocated as evenly as possible among all employees qualified to do the job. Supervisors shall make every effort to schedule overtime as far in advance as possible. Supervisors shall be held responsible for ensuring that overtime is assigned only when absolutely necessary. Overtime for non-exempt employees will be paid subject to the requirements of the Fair Labor Standards Act, 29 U.S.C 201 et seq., as the same may be amended from time to time. Some seasonal and temporary positions may be eligible for overtime. The Human Resources Director is responsible for maintaining the exempt/non-exempt status of all City positions. ADMINISTRATIVE PROCEDURE: I. OVERTIME PAY: A. Non-exempt employees will be paid at the rate of one and one-half times their regular rate of pay for overtime. Overtime will be paid for all additional time worked to the nearest quarter hour. B. Effective January 1, 2009, the City of Denton will not provide compensatory time in lieu of paid overtime for any employees. Employees who work more than the FLSA mandated hours within an established pay period will be paid at the FLSA overtime rate pursuant to "A" above. C. Regular part-time employees will not receive overtime pay until the number of hours actually worked exceeds 40 hours per workweek. D. Holidays and vacation leave, with the exception of vacation in lieu of sick, are considered actual time worked for overtime eligibility. Except in the case of Fire Civil Service employees, all other leaves (i.e., sick leave, administrative leave, etc.) are not considered time worked and are not included in computing hours for overtime purposes. In order to comply with Texas civil service HR/POLICY/t06.04 PAGE 2 OF 3 POLICY/ADMINISTRATIVE PROCEDUREIADMINISTRATIVE DIRECTIVE Continued TITLE: OVERTIME REFERENCE NUMBER: 106.04 laws regarding civil service fire fighters, with regards to Fire civil service employees, substitution of any leave for regularly assigned duty will be counted as time worked up to 120 hours of assigned duty. Any leave (other than vacation (excluding vacation in lieu of sick) and holiday) that results in paid hours in excess of regularly assigned duty (120 hours) is not considered time worked. E. Exempt employees are not eligible for overtime pay. These employees will sometimes be required to work more than the normal 40-hour week without compensation due to the nature of their job duties. Supervisors of exempt positions will determine occasional discretionary time off, based on workload, for hours worked in excess of 40 hours per week. Discretionary time is defined as flexible time off which is approved by the immediate supervisor and does not equal or exceed the number of extra hours worked. Exempt employees are not entitled to discretionary time and cannot accumulate discretionary time for pay out. G. A regular full-time employee may have a part-time job in another department if approved by the department head and the Human Resources Director or his/her designee. The hours worked in this capacity shall not be counted toward overtime if the part-time work is in a different capacity than the employee's regular job and occurs on an occasional or sporadic basis. H. AUTHORIZATION OF OVERTIME A. Prior to working any overtime, employees must check with their supervisors to make sure overtime is or will be authorized. B. Work performed by an employee other than normal working hours will not be considered authorized overtime unless it is approved by the appropriate supervisor prior to the work being performed. (For example; work during meal times, after normal working hours, or work taken home.) C. Non-exempt employees who work unauthorized overtime must still be paid for their time worked at the applicable overtime rate; however, the employees will be subject to discipline pursuant to the Disciplinary Actions Policy no. 109.01 if they work overtime without obtaining approval and authorization from their supervisors. D. Exempt employees may receive paid overtime at a rate of one and one-half times their regular rate of pay only in emergency situations (such as natural disasters that disrupt the delivery of essential services). Such payments must be approved in writing by the department head. An emergency situation is defined as a disruption or loss of an essential service related to water, electricity, health or safety. HR/POLICY/106.04 PAGE 3 OF 3 POLICY/ADMINISTRATIVE PROCEDURE/ADMIMSTRATIVE DIRECTIVE Continued TITLE: OVERTIME REFERENCE NUMBER: 106.04 CIVIL SERVICE: The City of Denton has declared a 14-day work period under the 207(K) provision of the Fair Labor Standards Act for Denton Fire civil service employees and Police civil service employees who work scheduled 12-hour shifts. Under this exemption, hours worked over 106 in the 14-day work period by Fire civil service employees will be considered overtime and will be paid at one and one- half times the regular rate. Although under the 207(K) provision of the Fair Labor Standards Act a Police officer subject to the provision would not be paid overtime until he/she had worked more than 84 hours in a two week period, the Texas law is more restrictive and requires that Police civil service employees be paid overtime rates for time worked in excess of 80 hours in a two week period. Pursuant to Texas law, the City of Denton has declared a 14-day work period for civil service police employees who work 12-hour shifts. Under this declaration, hours worked over 80 in the 14-day work period will be considered overtime and will be paid at one and one-half times the regular rate; however, when determining whether leave time is "time worked" (as described in section I. D., above), the City of Denton will continue to analyze the leave time on a weekly basis. Sections 142.001-142.0017 of the Texas Local Government Code (hours of labor and vacations of fire fighters and police officers in certain cities) outlines the specific laws concerning overtime of civil service employees. The Texas Local Government Code is available for review at the City of Denton Public Library and the Fire, Police, and Human Resources departments. HR/POLICY/106.04 AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Human Resources CM/ ACM: George C. Campbell, City Manager SUBJECT Consider approval of a resolution of the City of Denton, Texas approving a revised city policy regulating Meal and Break Times for the City of Denton employees; and declaring an effective date. BACKGROUND The Human Resources (HR) department is responsible for ensuring City policies are up-to-date and are in compliance with local, federal, and state laws. To that end, HR reviews policies from time to time, with the assistance of the Policy Review Committee. The Policy Review Committee is comprised of approximately 20 employees at various levels representing different departments/divisions. The members are expected to distribute the proposed changes to individuals in their area and solicit comments, questions, and concerns regarding the proposed changes. Policies are typically comprised of two sections - a "Policy Statement" which is approved by City Council and "Administrative Procedures" which are approved by the City Manager. So any time changes are required in the "Policy Statement", the policy will be sent to the City Council for review and approval. One of the policies needing revisions is policy no. 108.02 - Meal/Break Times. A paragraph has been added to section I clarifying that if a non-exempt employee (eligible for overtime for hours worked over 40 in a work week) does not receive a 30 minute, duty-free lunch, he/she will be paid for the time. This revision will ensure compliance with the Fair Labor Standards Act (FLSA). The FLSA states, "Meal periods need not be counted as work time if they are at least 30 minutes long and the employee is relieved from active duties during the meal period." The policy used to refer to compensatory time in section I1.B.4. Since we eliminated accrual of compensatory time (in lieu of paid overtime) in January of 2009, this reference was removed. Members of the employee Policy Review Committee support the proposed changes. OPTIONS Approve the policy as proposed; not approve the policy; or make modifications. RECOMMENDATION Staff recommends that the City Council amend the Meal/Break Times Policy as drafted. PRIOR ACTION/REVIEW (Council, Boards, Commissions) There has been no prior action or review on this agenda item. FISCAL INFORMATION There is no fiscal impact on the City of Denton associated with this recommendation. EXHIBITS Resolution Proposed revised City of Denton Meal/Break Times Policy (No. 108.02) Respectfully sunitted: Carla Haggmark-Romine Director of Human Resources RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS APPROVING A REVISED CITY POLICY REGULATING MEAL AND BREAK TIMES FOR THE CITY OF DENTON EMPLOYEES; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas has adopted a policy relating to meal and break times for its employees; and WHEREAS, the Director of Human Resources has presented a revised policy regarding meal and break times for City of Denton employees; and WHEREAS, the City Council, desires to adopt such policy as an official policy regarding employment with the City; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. Policy number 108.02 "Meat/Break Times" of the Personnel Policies and Procedure Manual of the City of Denton, a copy of which is attached hereto and incorporated by reference herein, is hereby approved as official policy of the City of Denton, Texas, and replaces former policy number 108.02 within the Policies and Procedure Manual SECTION 2. The foregoing policy attached hereto and made a part hereof shall be filed in the official records with the City Secretary. SECTION 3. This resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Z:U)ur Dacomeu[aT-1utionsN3[Nmeal mid Eoeak th~ policydoc CITY OF DENTON PAGE I OF 2 POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE SECTION: HUMAN RESOURCES REFERENCE NUMBER: 108.02 SUBJECT: STANDARDS OF CONDUCT FOR EMPLOYEES INITIAL EFFECTIVE DATE: 05/06/86 TI'T'LE: MEAL/BREAK TIMES LAST REVISION DATE: 07/20/2010 POLICY STATEMENT: 1. MEAL BREAK Every effort will be made to ensure that all employees receive a daily meal break during each shift. This break is to be taken at the discretion of the department supervisor. There may be instances, however, when an employee may not receive a scheduled meal break due to scheduling and/or the nature of the work. Unless otherwise instructed, employees will receive at least a 30 consecutive minute, duty-free meal break during a normal work day. In the event a non-exempt employee does not get a 30 consecutive minute duty-free meal break, he/she shall be paid in accordance with the Fair Labor Standards Act. 11. REST BREAKS No more than two rest breaks may be made available with the approval of the immediate supervisor. Rest breaks shall be considered a privilege and not a right and shall never interfere with proper performance of an employee's work responsibilities and department work schedules. A. Rest Break Conditions Rest breaks are a maximum of fifteen (15) minutes. Employee rest breaks must be taken at, near, or in route to or from work sites within the fifteen (15) minute limits. Employees whose work sites and/or work schedules do not permit opportunities to obtain food or beverages should plan ahead and take provisions with them to the work sites. B. Rest Break Practices Not Permitted 1. Combining two daily breaks into one thirty (30) minute rest period. 2. "Banking" rest period time from day to day 3. Saving rest period time to extend lunch period or shorten shift is prohibited. HR/POLICY/I08.02 PAGE 2 OF 2 rvLii-x/AUivi 'NiNiKAnvL+ YRuiuEjL)UKE/A NUNIS'1'KA'IIVEDIRECTIVE Continued TI'TLE: MEALBREAK TIMES REFERENCE NUMBER: 108.02 4. Requesting overtime pay for work performed during a rest period. 5. Field crews will not be allowed to leave the job site for breaks. Hlt/P.OLICY/108.02 This page left blank intentionally . AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Human Resources CM/ ACM: George C. Campbell, City Manager SUBJECT Consider approval of a resolution of the City of Denton, Texas approving a revised city policy regulating Solicitation by and to City of Denton employees; and declaring an effective date. BACKGROUND The Human Resources (HR) department is responsible for ensuring City policies are up-to-date and are in compliance with local, federal, and state laws. To that end, HR reviews policies from time to time, with the assistance of the Policy Review Committee. The Policy Review Committee is comprised of approximately 20 employees at various levels representing different departments/divisions. The members are expected to distribute the proposed changes to individuals in their area and solicit comments, questions, and concerns regarding the proposed changes. Policies are typically comprised of two sections - a "Policy Statement" which is approved by City Council and "Administrative Procedures" which are approved by the City Manager. So any time changes are required in the "Policy Statement", the policy will be sent to the City Council for review and approval. One of the policies needing revisions is policy no. 114.01 - Solicitation. This policy has long been problematic for the organization. As originally written, it allowed for employees to solicit only for charitable contributions specific to United Way and "Fill the Boot" campaigns under certain guidelines. However, over the years, various City Managers have authorized solicitation (albeit limited) for agencies that can have a positive impact on our wellness initiatives such as Heart Walk and Breast Cancer Awareness. The policy, as written, needed better clarification regarding "public purpose". The revised policy addresses this issue. The policy also did not provide much guidance for organizations that want to offer discounts to our employees or for our employees who approach area businesses for donations for various City functions. In fact, the policy only set out guidelines for (1) soliciting charitable contributions (not allowed except for United Way and Fill the Boot), (2) for posting non job-related printed material, and (3) distribution of printed items to City employees. As a result of the aforementioned issues, the policy before you better defines a "public purpose" and organizes the separate solicitation issues under Administrative Procedures: -solicitation for charitable organizations; -solicitation for special circumstances (e.g., asking for money for retirement parties or for employee hardships); I -solicitation of business from employees (vendors offering discounts); -solicitation of donations from businesses and organizations by City employees; and -posting of advertisements, announcements, leaflets, and items. While drafting these procedures, we tools into consideration productivity and public perception while still balancing the needs of the organization and employees. As drafted, the policy revisions will allow City Council to define a "public purpose" then delegate the responsibility to the City Manager to approve solicitation to or by City employees, in compliance with the policy. In addition to review by the Policy Review Committee, these revisions have been presented to the leadership team for review and comment. Both the leadership team and the members of the employee Policy Review Committee support the proposed changes. OPTIONS Approve the policy as proposed; not approve the policy; or make modifications. RECOMMENDATION Staff recommends that the City Council amend the Solicitation Policy as drafted. PRIOR ACTION/REVIEW (Council, Boards, Commissions) There has been no prior action or review on this agenda item. FISCAL INFORMATION There is no fiscal impact on the City of Denton associated with this recommendation. EXHIBITS Resolution Proposed revised City of Denton Solicitation Policy (No. 114.01) Respectfully stnitted: Carla Haggmark-Romine Director of Human Resources RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS APPROVING A REVISED CITY POLICY REGULATING SOLICITATION BY AND TO CITY OF DENTON EMPLOYEES; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas has adopted a policy relating to solicitation by and to its employees; and WHEREAS, the Director of Human Resources has presented a revised policy regarding solicitation by and to City of Denton employees; and WHEREAS, the City Council, desires to adopt such policy as an official policy regarding employment with the City; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. Policy number 114.01 "Solicitation" of the Personnel Policies and Procedure Manual of the City of Denton, a copy of which is attached hereto and incorporated by reference herein, is hereby approved as official policy of the City of Denton, Texas, and replaces former policy number 114.01 within the Policies and Procedure Manual. SECTION 2. The foregoing policy attached hereto and made a part hereof shall be filed in the official records with the City Secretary. SECTION 3. This resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 2010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: ZACWr Uucunxot 4Re olurwu 11u1so1icWUOn yokyAm CITY OF DENTON PAGE I OF 3 POLICY/.ADMINISTRATIVE PROCEDURE/ADMUNISTRATIVE DIRECTIVE SECTION: HUMAN RESOURCES REFERENCE NUMBER: 114.01 SUBJECT: SOLICITATION INITIAL EFFECTIVE DATE: 04/02/86 TITLE: SOLICITATION LAST REVISION DATE: 07/20/2010 POLICY STATEMENT: City offices are for the purpose of conducting City business. To facilitate internal productivity, no organization or business will be allowed to solicit to any City employee during work hours or on City property except as provided by this policy. Additionally, no employee of the City of Denton may engage in political activity, solicit contributions or donations, sell tickets, or take orders for any cause or function to another City employee, retail business, or to a member of the general public while on duty , except as provided by this policy. . Any solicitation to or by City employees must be deemed a "public purpose" and approved by the City Manager. For purposes of this policy, a "public purpose" will be defined as benefitting a not-for-profit organization that does not express religious, moral, or political opinions and- • Has a positive fiscal impact on the Denton community; • Has a positive impact to the quality of life in the Denton community; • Has a positive impact to the productivity and morale of City employees; or • Has a positive impact to Denton's reputation. ADMINISTRATIVE PROCEDURES I. Solicitation for Charitable Organizations Employees soliciting charitable contributions for approved campaigns, either from other City employees or from the general public, are authorized to solicit such contributions either on or off the City facilities on duty and in uniform in accordance with any restrictions set forth under Section 25- 5 "Soliciting Business or Charitable Contributions" of the Code of Ordinances of the City of Denton, or any other applicable laws, rules, or regulations, and subject. to the following restrictions: 1. No City employee shall be allowed to solicit charitable contributions on duty for more than 24 hours during one calendar year without advanced approval from the City Manager or his/her designee. 2. No City employee shall be authorized to solicit charitable contributions on duty when it interferes with that employee's regular duties or functions. HR/POLICY/I 14.01 PAGE 2 OF -3 POLICYIADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: SOLICITATION REFERENCE NUMBER: 114.01 3. In soliciting charitable contributions on duty, the City employee will comply with all other applicable sections of the Code of Ordinances of the City of Denton and all other City policies, procedures, and regulations. II. Solicitation for Special Circumstances Collections for employees leaving City employment will be allowed. Collections for employees suffering personal hardships will be allowed with the approval of the Human Resources Director. Under no circumstances should any employee feel coerced to give money, gifts, or donations of any kind. All other City policies, procedures, and regulations should also be followed. III. Solicitation of Business From Employees In order to establish a uniform policy regarding solicitation of business from employees of the City of Denton, the following guidelines have been established: 1. The City of Denton will not promote or distribute any information pertaining to discounts offered by retail businesses/services unless authorized in writing by the City Manager and made available to all City employees. Only discounts to local and regional special events, sporting events, and attractions will be allowed. 2. All inquiries should be referred to the Human Resources Department. 3. Discounts to local and regional special events, sporting events, and attractions must be available to all employees unless job related. 4. If requested, a company must supply discount coupons/flyers in a quantity to be available for the entire employee population. 5. Flyers/handouts for advertising purposes only will not be accepted. IV. Solicitation of Donations from Businesses and Organizations by City Employees Solicitation of donations from businesses and organizations by City employees will not be allowed, unless on behalf of an approved City foundation or recognized employee association. In these instances, solicitation of donations must comply with Section I of this policy. Events hosted by the City, in whole or in part, that benefit the community are excluded from this policy. HR/POLICY/114.01 PAGE 3 OF 3 POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: SOLICITATION REFERENCE NUMBER: 114.01 V. POSTING OF ALL ADVERTISEMENTS, ANNOUNCEMENTS, LEAFLETS AND ITEMS No other non job related announcement or printed material may be attached to any window or building owned by the City of Denton, excluding employee break rooms, unless sponsored by the City of Denton and has a City of Denton logo or wording such as "funding provided by..." or is approved by the City Manager. Specific technical job related material must be approved by the division manager. All items posted should have a removal date in the lower right-hand corner. Any public service bulletin board located on City property is exempt from this policy. However, users of the public service bulletin board must adhere to the guidelines established by the appropriate department. HRIPOI .ICY/114.01 AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: City Manager's Office CM/DCM/ACM: George C. Campbell, City Manager SUBJECT: Consider adoption of an ordinance of the City of Denton authorizing and ratifying an agreement between the City of Denton, Texas and the Kiwanis for the purpose of hosting the Fourth of July Fireworks Show; providing for the expenditure of funds; and providing for an effective date. BACKGROUND: This agreement allows for the total expenditure of $1,400 (Mayor Mark Burroughs, $400; Mayor Pro Tem Pete Kamp, $350, Council Member Charlye Heggins, $200; Council Member Jim Engelbrecht, $200 and Council Member Chris Watts, $250) from Council Contingency Funds. Key provisions of the agreement include: ■ Funds shall be used by the Club to host the Fourth of July fireworks Show. ■ In addition to other reporting requirements, documentation in the form of cancelled checks and/or corresponding receipts specifically detailing expenditure of funds for the purpose provided is required for reimbursement from these designated funds. FISCAL INFORMATION Funding for the contract will come from respective Council contingency fund accounts. Respectfully submitted: George C. Campbell City Manager Prepared by: Linda Holley Executive Assistant SALega110ur Documentsldrdinances1101se agr-Kiwanis Fireworks.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING AND RATIFYING AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS, AND THE KIWANIS FOR THE PURPOSE OF HOSTING THE FOURTH OF JULY FIREWORKS SHOW; PROVIDING FOR THE EXPENDITURE OF FUNDS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton hereby finds that the Program and the agreement between the City and the Kiwanis for the purpose of hosting the Fourth of July Fireworks Show, attached hereto and made a part hereof by reference (the "Agreement'), serve a municipal and public purpose and is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this Ordinance are incorporated by reference into the body of this Ordinance as if fully set forth herein. SECTION 2. The Agreement is hereby approved and ratified and the City Manager's, or his designee's, execution of the Agreement is hereby ratified. All expenditures authorized by the Agreement are also ratified and approved. SECTION 3. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: a.-~ L , i cAdocuments and settingsllaholleyllocal settingsltemporary intemet fileslcontent.outlook\f52sugailserv agr-kiwanis fireworksl.doc SERVICE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS, AND THE DENTON KIWANIS CLUB This Agreement is hereby entered into by and between the City of Denton, Texas, a Home Rule Municipal Corporation, hereinafter referred to as "City", and the Denton Kiwanis Club, a Texas Non- Profit Corporation, hereinafter referred to as "Club"; WHEREAS, City has determined that the proposal for services merits assistance and can provide needed services to citizens of City and has provided funds in its budget for the purpose of paying for contractual services; and WHEREAS, this Agreement serves a valid municipal and public purpose and is in the public interest; NOW, THEREFORE, the parties hereto mutually agree as follows: I. SCOPE OF SERVICES Club shall in a satisfactory and proper manner perform the following tasks, for which the monies provided by City may be used: Show. The funds being provided shall be used by the Club to host the Fourth of July Fireworks 11. OBLIGATIONS OF CLUB In consideration of the receipt of funds from City, Club agrees to the following terms and conditions: A. One Thousand, Four Hundred Dollars and no/ 100 ($1,400.00) shall be paid to Club by City to be utilized for the purposes set forth in Article I. B. Club will maintain adequate records to establish that the City funds are used for the purposes authorized by this Agreement. C. Club will permit authorized officials of City to review its books at any time. D. Upon request, Club will provide to City its By Laws and any of its rules and regulations that may be relevant to this Agreement. E. Club will not enter into any contracts that would encumber City funds for a period that would extend beyond the term of this Agreement. F. Club will appoint a representative who will be available to meet with City officials when requested. c:\c ocuments and settingsVaholkeyVocal settingsVempomry internet fileslcontent.outlookV52sugailserv agr-kiwanis fireworksl.doc G. Club will submit to City copies of year-end audited financial statements. III. TIME OF PERFORMANCE The services funded by City shall be undertaken and completed by Club within the following time frame: The term of this Agreement shall commence on the effective date and terminate September 30, 2010, unless the contract is sooner terminated under Section VII "Suspension or Termination". IV. PAYMENTS A. PAYMENTS TO CLUB. City shall pay to Club the sum specified in Article II after the effective date of this Agreement. B. ExCESS PAYMENT. Club shall refund to City within ten (10) working days of City's request, any sum of money which has been paid by City and which City at any time thereafter determines: 1) has resulted in overpayment to Club; or 2) has not been spent strictly in accordance with the terms of this Agreement; or 3) is not supported by adequate documentation to fully justify the expenditure. V. EVALUATION Club agrees to participate in an implementation and maintenance system whereby the services can be continuously monitored. Club agrees to make available its financial records for review by City at City's discretion. In addition, Club agrees to provide City the following data and reports, or copies thereof: A. All external or internal audits. Club shall submit a copy of the annual independent audit to City within ten (10) days of receipt. B. All external or internal evaluation reports. C. An explanation of any major changes.in program services. D. To comply with this section, Club agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of funds received and the services performed under this Agreement. Club's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Club agrees to retain all books, records, documents, reports, and written accounting procedures pertaining to the services provided and expenditure of funds under this Agreement for five years. Page 2 c:l wuments and settingsllaholley%cal settingslt nporwy internet fileslcontentoudook\f52sugailserv agr-kiwanis fireworksl.doc E. Nothing in the above subsections shall be construed to relieve Club of responsibility for retaining accurate and current records that clearly reflect the level and benefit of services provided under this Agreement. VI. DIRECTORS' MEETINGS During the term of this Agreement, Club shall deliver to City copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof wherein this program is a part of the subject matter of the meeting. Such notice shall be delivered to City in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. Club understands and agrees that City's representatives shall be afforded access to all meetings of its Board of Directors. Minutes of all meetings of Club's governing body shall be available to City within ten (10) working days of approval. VII. TERMINATION The City may terminate this Agreement for cause if Club violates any covenants, agreements, or guarantees of this Agreement, the Club's insolvency or filing of bankruptcy, dissolution, or receivership, or the Club's violation of any law or regulation to which it is bound under the terms of this Agreement. The City may terminate this Agreement for other reasons not specifically enumerated in this paragraph. VIII. EQUAL OPPORTUNITY AND_COMPLrANCE WITH LAWS A. Club shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. B. Club will furnish all information and reports requested by City, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal rules and regulations. C. In the event of Club's noncompliance with the non-discrimination requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and Club may be barred from further contracts with City. IX. WARRANTIES Club represents and warrants that: A. All information, reports and data heretofore or hereafter requested by City and furnished to City, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to City. B. Any supporting financial statements heretofore requested by City and furnished to City, are complete, accurate and fairly reflect the financial conditions of Club on the date shown on Page 3 cAdocuments and settingsllaholleyllocal settingsVemporary internet fileslcontent.outlook\f52sugai\serv agr-kiwanis fireworksl.doc said report, and the results of the operation for the period covered by the report, and that since said data, there has been no material change, adverse or otherwise, in the financial condition of Club. C. No litigation or legal proceedings are presently pending or threatened against Club. D. None of the provisions herein contravenes or is in conflict with the authority under which Club is doing business or with the provisions of any existing indenture or agreement of Club. E. Club has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. F. None of the assets of Club are subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the financial statements furnished by Club to City. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment. X. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly provide that another method shall be used. B. It is understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. C. Club shall notify City of any changes in personnel or governing board composition. XI. INDEMNIFICATION To the extent authorized by law, the Club agrees to indemnify, hold harmless, and defend the CITY, its officers, agents, and employees from and against any and all claims or suits for injuries, damage, loss, or liability of whatever kind or character, arising out of or in connection with the performance by the Club or those services contemplated by this Agreement, including all such claims or causes of action based upon common, constitutional or statutory law, or based, in whole or in part, upon allegations of negligent or intentional acts of Club, its officers, employees, agents, subcontractors, licensees and invitees. XII. CONFLICT OF INTEREST A. Club covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of Page 4 Odocuments and settingsllaholleyllocal settingsltemporary intemet fileslcontent.outlookWS2sugailserv agr-kiwanis freworksl.doc services required to be performed under this Agreement. Club further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. B. Club further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in or use his/her position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself/herself, or others; particularly those with which he/she has family, business, or other ties. C. No officer, member, or employee of City and no member of its governing body who exercises any function or responsibilities in the review or approval ofthe undertaking or carrying out of this Agreement shall participate in any decision relating to the Agreement which affects his personal interest or the interest in any corporation, partnership, or association in which he has direct or indirect interest. )(III. NOTICE Any notice or other written instrument required or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, or via hand-delivery or facsimile, addressed to Club or City, as the case may be, at the following addresses: CITY CLUB City of Denton, Texas Virginia Hammerle Attn: City Manager President of Denton Kiwanis Club 215 E. McKinney 225 W. Hickory No. A Denton, TX 76201 Denton, TX 76201 Fax No. 940.349.8591 Fax No. 940.3 87.6323 Either party may change its mailing address by sending notice of change of address to the other at the above address by certified mail, return receipt requested. XIV. MISCELLANEOUS A. Club shall not transfer, pledge or otherwise assign this Agreement or any interest therein, or any claim arising thereunder to any party or parties, bank, trust company or other financial institution without the prior written approval of City. B. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. C. In no event shall any payment to Club hereunder, or any other act or failure of City to insist in any one or more instances upon the terms and conditions of this Agreement constitute or be construed in any way to be a waiver by City of any breach of covenant or default which may then or Page 5 c:ldocuments and satingsllaholleyUocal settingsltemponvy intemet fileslcontentoudooklt'52sugailserv agr-kiwanis fireworkst,doc subsequently be committed by Club. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to City to enforce its rights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of City may waive the effect of this provision. D. This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding, or other commitment occurring during the term of this Agreement or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendment of this Agreement. E. This Agreement shall be interpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Agreement shall be in a court of competent jurisdiction sitting in Denton County, Texas. IN WITNESS WHEREOF, the parties do hereby affix their signatures and enter into this Agreement as of the day of , 2010. GEORGE C. CAMPBELL, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 711, DENTON KIWANIS CLUB BY: VIRG RL PRES ENT ATTEST: BY: SECRETARY Page 6 AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: City Manager's Office CM/DCM/ACM: George C. Campbell, City Manager SUBJECT: Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and the Friends of the Denton Public Libraries Organization for supplemental funding for the Adult Literacy Program; providing for the expenditure of funds; and providing for an effective date. BACKGROUND: This agreement allows for the total expenditure of $550 (Mayor Mark Burroughs, $100; Council Member Charlye Heggins, $100; Council Member Dalton Gregor-, $250; and Council Member Jim Engelbrecht, $100) from Council Contingency Funds. Key provisions of the agreement include: ■ Funds shall be used by the Organization for the Adult Literacy Program. ■ In addition to other reporting requirements, documentation in the form of cancelled checks and/or corresponding receipts specifically detailing expenditure of funds for the purpose provided is required for reimbursement from these designated funds. FISCAL INFORMATION Funding for the contract will come from respective Council contingency fund accounts. Respectfully submitted: George C. Campbell City Manager Prepared by: Linda Holley Executive Assistant s:llegallour documentslordinances1101serv agr ord-friends of dentan public libraries.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS, AND THE FRIENDS OF THE DENTON PUBLIC LIBRARIES ORGANIZATION FOR SUPPLEMENTAL FUNDING FOR THE ADULT LITERACY PROGRAM; PROVIDING FOR THE EXPENDITURE OF FUNDS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton hereby finds that the Agreement between the City and the Organization attached hereto and made a part hereof by reference (the "Agreement serves a municipal and public purpose; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this Ordinance are incorporated by reference into the body of this Ordinance as if fully set forth herein. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Agreement and to exercise all rights and duties of the City under the Agreement, including the expenditure of fluids as provided in the Agreement. SECTION 3. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: ` Lh w, CADocuments and SettingsV AHOLLEYILocal Settings\Temporary Internet Files\Content.0utlookT52SUGABSm Agmt-Friends of Denton Libraries.doc SERVICE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND FRIENDS OF THE DENTON PUBLIC LIBRARIES ORGANIZATION This Agreement is hereby entered into by and between the City of Denton, Texas, a Home Rule Municipal Corporation, hereinafter referred to as "City", and the Friends of the Denton Public Libraries Organization, a Texas Non-Profit Corporation, hereinafter referred to as "Organization": WHEREAS, City has determined that the proposal for services merits assistance and can provide needed services to citizens of City and has provided funds in its budget for the purpose of paying for contractual services; and WHEREAS, this Agreement serves a valid municipal and public purpose and is in the public interest as it will promote tourism and economic development within the City, among other things; NOW, THEREFORE, the parties hereto mutually agree as follows: I. SCOPE OF SERVICES Organization shall in a satisfactory and proper manner perform the following tasks, for which the monies provided by City may be used: The funds being provided shall be used by Organization for the Adult Literacy Program 111. OBLIGATIONS OF ORGANIZATION In consideration of the receipt of funds from City, Organization agrees to the following terms and conditions: A. Five Hundred Fifty Dollars and no/1 00 ($550.00) shall be paid to Organization by City to be utilized for the purposes set forth in Article 1. B. Organization will maintain adequate records to establish that the City funds are used for the purposes authorized by this Agreement. C. Organization will permit authorized officials of City to review its books at any time. D. Upon request, Organization will provide to City its By Laws and any of its rules and regulations that may be relevant to this Agreement. E. Organization will not enter into any contracts that would encumber City funds for a period that would extend beyond the term of this Agreement. F. Organization will appoint a representative who will be available to meet with City officials when requested. G. Organization will submit to City copies of year-end audited financial statements. III. TIME OF PERFORMANCE The services funded by City shall be undertaken and completed by Organization within the following time frame: The term of this Agreement shall commence on the effective date and terminate September 30, 2010, unless the contract is sooner terminated under Section VII "Suspension or Termination". IV. PAYMENTS A. PAYMENTS TO ORGANIZATION. City shall pay to Organization the sum specified in Article II after the effective date of this Agreement. B. EXCESS PAYMENT. Organization shall refund to City within ten (10) working days of City's request, any sum of money which has been paid by City and which City at any time thereafter determines: 1) has resulted in overpayment to Organization; or 2) has not been spent strictly in accordance with the terms of this Agreement; or 3) is not supported by adequate documentation to fully justify the expenditure. V. EVALUATION Organization agrees to participate in an implementation and maintenance system whereby the services can be continuously monitored. Organization agrees to make available its financial records for review by City at City's discretion. In addition, Organization agrees to provide City the following data and reports, or copies thereof: A. All external or internal audits. Organization shall submit a copy of the annual independent audit to City within ten (10) days of receipt. B. All external or internal evaluation reports. C. An explanation of any major changes in Organization services. D. To comply with this section, Organization agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of funds received and the services performed under this Agreement. The record system of Organization shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Organization agrees to retain all books, records, documents, reports, and written accounting procedures pertaining to the services provided and expenditure of funds under this Agreement for five years. E. Nothing in the above subsections shall be construed to relieve Organization of responsibility for retaining accurate and current records that clearly reflect the level and benefit of services provided under this Agreement. Page 2 of 7 VI. DIRECTORS` MEETINGS During the term of this Agreement, Organization shall deliver to City copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof wherein this Organization is a part of the subject matter of the meeting. Such notice shall be delivered to City in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. Organization understands and agrees that City's representatives shall be afforded access to all meetings of its Board of Directors. Minutes of all meetings of Organization' governing body shall be available to City within ten (14) working days of approval. VII. TERMINATION The City may terminate this Agreement for cause if Organization violates any covenants, agreements, or guarantees of this Agreement, the Organization's insolvency or filing of bankruptcy, dissolution, or receivership, or the Organization' violation of any law or regulation to which it is bound under the terms of this Agreement. The City may terminate this Agreement for other reasons not specifically enumerated in this paragraph. VIII. EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS A. Organization shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. B. Organization will furnish all information and reports requested by City, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal rules and regulations. C. In the event of non-compliance by Organization with the non-discrimination requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and Organization may be barred from further contracts with City. IX. WARRANTIES Organization represents and warrants that: A. All information, reports and data heretofore or hereafter requested by City and furnished to City, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to City. B. Any supporting financial statements heretofore requested by City and furnished to City, are complete, accurate and fairly reflect the financial conditions of Organization on the date shown on said report, and the results of the operation for the period covered by the report, and that since said data, there has been no material change, adverse or otherwise, in the financial condition of Organization. Page 3 of 7 C. No litigation or legal proceedings are presently pending or threatened against Organization. D. None of the provisions herein contravenes or is in conflict with the authority under which Organization is doing business or with the provisions of any existing indenture or agreement of Organization. E. Organization has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. F. None of the assets of Organization are subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the financial statements furnished by Organization to City. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment. X. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly provide that another method shall be used. B. It is understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. C. Organization shall notify City of any changes in personnel or governing board composition. XI. INDEMNIFICATION To the extent authorized by law, the Organization agrees to indemnify, hold harmless, and defend the CITY, its officers, agents, and employees from and against any and all claims or suits for injuries, damage, loss, or liability of whatever kind or character, arising out of or in connection with the performance by the Organization or those services contemplated by this Agreement, including all such claims or causes of action based upon common, constitutional or statutory law, or based, in whole or in part, upon allegations of negligent or intentional acts of Organization, its officers, employees, agents, subcontractors, licensees and invitees. XII. CONFLICT OF INTEREST Page 4 of 7 A. Organization covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Organization further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. B. Organization further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in or use his/her position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself/herself, or others; particularly those with which he/she has family, business, or other ties. C. No officer, member, or employee of City and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall participate in any decision relating to the Agreement which affects his personal interest or the interest in any corporation, partnership, or association in which he has direct or indirect interest. XIII. NOTICE Any notice or other written instrument required or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, or via hand-delivery or facsimile, addressed to Organization or City, as the case may be, at the following addresses: CITY City of Denton, Texas Attn: City Manager 215 E. McKinney Denton, TX 76201 Fax No. 940.349.8591 ORGANIZATION Lisa Jenkins, President Friends of the Denton Public Libraries 502 Oakland Denton, TX 76201 Either party may change its mailing address by sending notice of change of address to the other at the above address by certified mail, return receipt requested. XIV. MISCELLANEOUS A. Organization shall not transfer, pledge or otherwise assign this Agreement or any interest therein, or any claim arising thereunder to any party or parties, bank, trust company or other financial institution without the prior written approval of City. B. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. Page 5 of 7 C. In no event shall any payment to Organization hereunder, or any other act or failure of City to insist in any one or more instances upon the terms and conditions of this Agreement consti- tute or be construed in any way to be a waiver by City of any breach of covenant or default which may then or subsequently be committed by Organization. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to City to enforce its rights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of City may waive the effect of this provision. D. This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding, or other commitment occurring during the term of this Agreement, or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendment of this Agreement. E.This Agreement shall be interpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Agreement shall be in a court of competent jurisdiction sitting in Denton County, Texas. IN WITNESS WHEREOF, the parties do hereby affix their signatures and enter into this Agreement as of the day of , 2010 PASSED AND APPROVED this the day of , 2010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY 1~ Lt' _C.Az~ BY: D", L ORGANIZATION BY: ` LISA JENKINS, ENT Page 6 of 7 ATTEST: BY. BOARD SECRETARY Page 7 of 7 This page left blank intentionally . AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: City Manager's Office CM/DCM/ACM: George C. Campbell, City Manager SUBJECT: Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and Fred Moore Day Nursery School; providing for the expenditure of funds; and providing for an effective date. BACKGROUND: This agreement allows for the total expenditure of $750 (Mayor Mark Burroughs, $150; Council Member Charlye Heggins, $100; Council Member Dalton Gregoiy, $250; Council Member Jim Engelbrecht, $150; and Council Member Chris Watts, $100) from Council Contingency Funds. Key provisions of the agreement include: Funds shall be used by the Organization for toys and program supplies for the Threes and Pre-K Programs. In addition to other reporting requirements, documentation in the form of cancelled checks and/or corresponding receipts specifically detailing expenditure of funds for the purpose provided is required for reimbursement from these designated funds. FISCAL INFORMATION Funding for the contract will come from respective Council contingency fund accounts. Respectfully submitted: George C. Campbell City Manager Prepared by: Linda Holley Executive Assistant sAlegallour docurnentAordinances1101serv agr fred moore ord.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS, AND FRED MOORE DAY NURSERY SCHOOL; PROVIDING FOR THE EXPENDITURE OF FUNDS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton hereby finds that the Program and the Agreement between the City and Fred Moore Day Nursery School, attached hereto and made a part hereof by reference (the "Agreement"), serve a municipal and public purpose including the promotion of tourism and economic development and the Agreement is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this Ordinance are incorporated by reference into the body of this Ordinance as if fully set forth herein. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Agreement and to exercise all rights and duties of the City under the Agreement, including the expenditure of funds as provided in the Agreement. SECTION 3. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY Y BY: I I cAdocuments and settingsVaholleyllocal settingsltemporary internet fileslcontent.outlooklf52sugailserv agmt-fred moore day nursery school.doc SERVICE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND FRED MOORE DAY NURSERY SCHOOL This Agreement is hereby entered into by and between the City of Denton, Texas, a Home Rule Municipal Corporation, hereinafter referred to as "City", and the for Fred Moore Day Nursery School, a Texas Non-Profit Organization, hereinafter referred to as "Organization": WHEREAS, City has determined that the proposal for services merits assistance and can provide needed services to citizens of City and has provided funds in its budget to assist Fred Moore Day Nursery School; and WHEREAS, this Agreement serves a valid municipal and public purpose and is in the public interest; NOW, THEREFORE, the parties hereto mutually agree as follows: 1. SCOPE OF SERVICES Organization shall in a satisfactory and proper manner perform the following tasks, for which the monies provided by City may be used: The funds being provided shall be used by the Organization for toys and programs supplies for the Threes and Pre-K Program. lI. OBLIGATIONS OF ORGANIZATION In consideration of the receipt of funds from City, Organization agrees to the following terms and conditions: A. Seven Hundred Fifty Dollars and no/100 ($750.00) shall be paid to Organization by City to be utilized for the purposes set forth in Article I. B. Organization will maintain adequate records to establish that the City funds are used for the purposes authorized by this Agreement. C. Organization will permit authorized officials of City to review its books at any time. D. Upon request, Organization will provide to City its By Laws and any of its rules and regulations that may be relevant to this Agreement. E. Organization will not enter into any contracts that would encumber City funds for a period that would extend beyond the term of this Agreement. F. Organization will appoint a representative who will be available to meet with City officials when requested. cAdocuments and settingsUaholleyllocal settings4emporary internet fileskontentoutlook02sugailserv agmt-fred moore day nursery school.doc G. Organization will submit to City copies of year-end audited financial statements. M. TIlVIE OF PERFORMANCE The services funded by City shall be undertaken and completed by Organization within the following time frame: The term of this Agreement shall commence on the effective date and terminate on September 30, 2010, unless the contract is sooner terminated under Section VII "Suspension or Termination". IV. PAYMENTS A. PAYMENTS TO ORGANIZATION. City shall pay to Organization the sum specified in Article II after the effective date of this Agreement. B. EXCESS PAYMENT. Organization shall refund to City within ten (10) working days of City's request, any sum of money which has been paid by City and which City at any time thereafter determines: 1) has resulted in overpayment to Organization; or - 2) has not been spent strictly in accordance with the terms of this Agreement; or 3) is not supported by adequate documentation to fully justify the expenditure. V. EVALUATION Organization agrees to participate in an implementation and maintenance system whereby the services can be continuously monitored. Organization agrees to make available its financial records for review by City at City's discretion. In addition, Organization agrees to provide City the following data and reports, or copies thereof: A. All external or internal audits. Organization shall submit a copy of the annual independent audit to City within ten (10) days of receipt. B. All external or internal evaluation reports. C. An explanation of any major changes in program services. D. To comply with this section, Organization agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of funds received and the services performed under this Agreement. Organization's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Organization Page 2of7 cAdocuments and settingsllaholleyllocal settingsltemporary internet fileslcontent.outlook\f52sugailaerv agmt-fred moore day nursery school.doc agrees to retain all books, records, documents, reports, and written accounting procedures pertaining to the services provided and expenditure of funds under this Agreement for five years. E. Nothing in the above subsections shall be construed to relieve Organization of responsibility for retaining accurate and current records that clearly reflect the level and benefit of services provided under this Agreement. VI. DIRECTORS' MEETINGS During the term of this Agreement, Organization shall deliver to City copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof wherein this program is a part of the subject matter of the meeting. Such notice shall be delivered to City in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. Organization understands and agrees that City's representatives shall be afforded access to all meetings of its Board of Directors. Minutes of all meetings of Organization's governing body shall be available to City within ten (10) working days of approval. VII. TERMINATION The City may terminate this Agreement for cause if Organization violates any covenants, agreements, or guarantees of this Agreement, the Organization's insolvency or filing of bankruptcy, dissolution, or receivership, or the Organization's violation of any law or regulation to which it is bound under the terms of this Agreement. The City may terminate this Agreement for other reasons not specifically enumerated in this paragraph. VIII. EQUAL OPPORTUNITY AND COMPLLANCE WITH LAWS A. Organization shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. B. Organization will furnish all information and reports requested by City, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal rules and regulations. C. In the event of Organization's non-compliance with the non-discrimination requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and Organization may be barred from further contracts with City. IX. WARRANTIES Organization represents and warrants that: Page 3 of 7 c:ldocuments and settingsVaholleyllocal settingsltemporary internet fileslcontent.outlookl#52sugailserv agmt &ed moore day nursery school.doc A. All information, reports and data heretofore or hereafter requested by City and furnished to City, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to City. B. Any supporting financial statements heretofore requested by City and famished to City, are complete, accurate and fairly reflect the financial conditions of Organization on the date shown on said report, and the results of the operation for the period covered by the report, and that since said data, there has been no material change, adverse or otherwise, in the financial condition of Organization. C. No litigation or legal proceedings are presently pending or threatened against Organization. D. None of the provisions herein contravenes or is in conflict with the authority under which Organization is doing business or with the provisions of any existing indenture or agreement of Organization. E. Organization has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. F. None of the assets of Organization are subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the financial statements furnished by Organization to City. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment. X. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly provide that another method shall be used. B. It is understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. C. Organization shall notify City of any changes in personnel or governing board composition. Page 4 of 7 cAdocuments and settingsUaholleyllocal settings4ernporary internet fileslcontent.outlook\f52sugalserv agent-fred moore day nursery school.doc XI. INDEMNIFICATION To the extent authorized by law, the Organization agrees to indemnify, hold harmless, and defend the CITY, its officers, agents, and employees from and against any and all claims or suits for injuries, damage, loss, or liability of whatever ldnd or character, arising out of or in connection with the performance by the Organization or those services contemplated by this Agreement, including all such claims or causes of action based upon common, constitutional or statutory law, or based, in whole or in part, upon allegations of negligent or intentional acts of Organization, its officers, employees, agents, subcontractors, licensees and invitees. XII. CONFLICT OF INTEREST A. Organization covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Organization further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. B. Organization further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in or use his/her position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself/herself, or others; particularly those with which he/she has family, business, or other ties. C. No officer, member, or employee of City and no member of its governing body who exercises any function or responsibilities in the review or approval ofthe undertaking or carrying out of this Agreement shall participate in any decision relating to the Agreement which affects his personal interest or the interest in any corporation, partnership, or association in which he has direct or indirect interest. XIII. NOTICE Any notice or other written instrument required or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, or via hand-delivery or facsimile, addressed to Organization or City, as the case may be, at the following addresses: CITY ORGANIZATION City of Denton, Texas Fred Moore Day Nursery School Attn: City Manager Alonzo Peterson, Executive Director 215 E. McKinney 821 Cross Timbers Street Denton, TX 76201 Denton, TX 76205 Fax No. 940.349.8591 Telephone No. 940.387.8214 Page 5 of 7 Odocuments and settingsllaholleyliocal settingsltemporary internet fileslcontent.outlooklf52sugalserv agent-fred moore day nursery sehoof.doc Either parry may change its mailing address by sending notice of change of address to the other at the above address by certified mail, return receipt requested. XIV. MISCELLANEOUS A. Organization shall not transfer, pledge or otherwise assign this Agreement or any interest therein, or any claim arising thereunder to any party or parties, bank, trust company or other financial institution without the prior written approval of City. B. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. C. In no event shall any payment to Organization hereunder, or any other act or failure of City to insist in any one or more instances upon the terms and conditions of this Agreement consti- tute or be construed in any way to be a waiver by City of any breach of covenant or default which may then or subsequently be committed by Organization. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to City to enforce its rights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of City may waive the effect of this provision. D. This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding, or other commitment occurring during the term of this Agreement or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendment of this Agreement. E. This Agreement shall be interpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Agreement shall be in a court of competent jurisdiction sitting in Denton County, Texas. IN WITNESS WHEREOF, the parties do hereby affix their signatures and enter into this Agreement as of the day of , 2010. GEORGE C. CAMPBELL, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: Page 6 of 7 cAdocuinents and settings\laholleyllocal settingsltemporary intemet fileslcontent.outlooklf52sugatl m agmt-fred moore day nursery school.doc APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: , L i FRED MOORE DAY NURSERY SCHOOL BY: ALONZ PETERSON EXECUTIVE DIRECTOR ATTEST: BY: SECRETARY Page 7 of 7 This page left blank intentionally . AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: City Manager's Office CM/DCM/ACM: George C. Campbell, City Manager SUBJECT: Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and Retired Senior Volunteer Program to assist with funding of postage; providing for the expenditure of funds; and providing for an effective date. BACKGROUND: This agreement allows for the total expenditure of $200 (Council Member Charlye Heggins, $200) from Council Contingency Funds. Key provisions of the agreement include: ■ Funds shall be used by the Organization for postage cost. ■ In addition to other reporting requirements, documentation in the form of cancelled checks and/or corresponding receipts specifically detailing expenditure of funds for the purpose provided is required for reimbursement from these designated funds. FISCAL INFORMATION Funding for the contract will come from respective Council contingency fund accounts. Respectfully submitted: George C. Campbell City Manager Prepared by: Linda Holley Executive Assistant cAdocuments and settingsltlreedyWcal settingsVemporary intemet fileslcontent.outlookljdi26tgtlserv agr rsvp.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND RETIRED AND SENIOR VOLUNTEER PROGRAM TO ASSIST WITH FUNDING OF POSTAGE; PROVIDING FOR THE EXPENDITURE OF FUNDS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Retired and Senior Volunteer Program ("RSVP"), a Texas non-profit corporation, (the "Organization") is dedicated to offer opportunities for retired persons fifty-five (55) years of age or older to do volunteer service in the community (the "Program"); and WHEREAS, the Organization and the City of Denton desire to enter into an agreement to provide for the continuance of the Program which agreement is substantially in the same form as the agreement attached hereto and made a part hereof by reference (the "Agreement"); and WHEREAS, the City Council of the City of Denton hereby finds that the Agreement between the City and the Organization attached hereto and made a part hereof by reference serve a municipal and public purpose and the Agreement is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this ordinance are incorporated by reference into the body of this ordinance as if fully set forth herein. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Agreement and to carry out the duties and responsibilities of the City under the Public Service Agreement, including the expenditure of funds as provided in the Public Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: AI :1Documents and SettingsU AHOLLMLocai Settings\Temporary Internet Files\Content.Out1ook1F52SUGAI\Serv Agmt RSVP.doc SERVICE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND RETIRED AND SENIOR VOLUNTEER PROGRAM This Agreement is hereby entered into by and between the City of Denton, Texas, a Home Rule Municipal Corporation, hereinafter referred to as "City", and Retired and Senior Volunteer Program, a Texas Non-Profit Corporation, hereinafter referred to as "RSVP": WHEREAS, City has determined that the proposal for services merits assistance and can provide needed services to citizens of City and has provided funds in its budget for the purpose of postage; and WHEREAS, this Agreement serves a valid municipal and public purpose and is in the public interest as it will assist local non-profit agencies, schools, hospitals, and public safety organizations within the City, among other things; NOW, THEREFORE, the parties hereto mutually agree as follows: I. SCOPE OF SERVICES RSVP shall in a satisfactory and proper manner perform the following tasks, for which the monies provided by City may be used: The funds being provided shall be used by RSVP to assist with the postage costs. 11. OBLIGATIONS OF RSVP In consideration of the receipt of funds from City, RSVP agrees to the following terms and conditions: A. Two Hundred Dollars and no/100 ($200.00) shall be paid to RSVP by City to be utilized for the purposes set forth in Article I. B. RSVP will maintain adequate records to establish that the City funds are used for the purposes authorized by this Agreement. C. RSVP will permit authorized officials of City to review its books at any time. D. Upon request, RSVP will provide to City its By Laws and any of its rules and regulations that may be relevant to this Agreement. E. RSVP will not enter into any contracts that would encumber City fiends for a period that would extend beyond the term of this Agreement. F. RSVP will appoint a representative who will be available to meet with City officials when requested. G. RSVP will submit to City copies of year-end audited financial statements. III. TIME OF PERFORMANCE The services funded by City shall be undertaken and completed by Organization within the following time frame: The term of this Agreement shall commence on the effective date and terminate September 30, 2010, unless the contract is sooner terminated under Section VII "Suspension or Termination". IV. PAYMENTS A. PAYMENTS To RSVP. City shall pay to RSVP the sum specified in Article 11 after the effective date of this Agreement. B. ExCESS PAYMENT. RSVP shall refund to City within ten (10) working days of City's request, any sum of money which has been paid by City and which City at any time thereafter determines: 1) has resulted in overpayment to RSVP; or 2) has not been spent strictly in accordance with the terms of this Agreement; or 3) is not supported by adequate documentation to fully justify the expenditure. V. EVALUATION RSVP agrees to participate in an implementation and maintenance system whereby the services can be continuously monitored. RSVP agrees to make available its financial records for review by City at City's discretion. In addition, RSVP agrees to provide City the following data and reports, or copies thereof A. All external or internal audits. RSVP shall submit a copy of the annual independent audit to City within ten (10) days of receipt. B. All external or internal evaluation reports. C. An explanation of any major changes in program services. D. To comply with this section, RSVP agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of funds received and the services performed under this Agreement. The record system of RSVP shall contain sufficient documentation to provide Page 2 of 7 W in detail full support and justification for each expenditure. RSVP agrees to retain all books, records, documents, reports, and written accounting procedures pertaining to the services provided and expenditure of funds under this Agreement for five years. E. Nothing in the above subsections shall be construed to relieve RSVP of responsibility for retaining accurate and current records that clearly reflect the level and benefit of services provided under this Agreement. VI. DIRECTORS' MEETINGS During the term of this Agreement, RSVP shall deliver to City copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof wherein this program is a part ofthe subject matter of the meeting. Such notice shall be delivered to City in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. RSVP understands and agrees that City's representatives shall be afforded access to all meetings of its Board of Directors. Minutes of all meetings of RSVP' governing body shall be available to City within ten (10) working days of approval. VII. TERMINATION The City may terminate this Agreement for cause if RSVP violates any covenants, agreements, or guarantees of this Agreement, the RSVP 's insolvency or filing of bankruptcy, dissolution, or receivership, or the RSVP's violation of any law or regulation to which it is bound under the terms of this Agreement. The City may terminate this Agreement for other reasons not specifically enumerated in this paragraph. VIII. EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS A. RSVP shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. B. RSVP will fiirnish all information and reports requested by City, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal rules and regulations. C. In the event of non-compliance by RSVP with the non-discrimination requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and RSVP may be barred from further contracts with City. Page 3 of 7 W IX. WARRANTIES RSVP represents and warrants that: A. All information, reports and data heretofore or hereafter requested by City and furnished to City, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to City. B. Any supporting financial statements heretofore requested by City and furnished to City, are complete, accurate and fairly reflect the financial conditions of RSVP on the date shown on said report, and the results of the operation for the period covered by the report, and that since said data, there has been no material change, adverse or otherwise, in the financial condition of RSVP. C. No litigation or legal proceedings are presently pending or threatened against RSVP. D. None of the provisions herein contravenes or is in conflict with the authority under which RSVP is doing business or with the provisions of any existing indenture or agreement of RSVP. E. RSVP has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. F. None of the assets of RSVP are subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the financial statements furnished by RSVP to City. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment. X. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly provide that another method shall be used. B. It is understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. C. RSVP shall notify City of any changes in personnel or governing board composition. Page 4 of 7 rJ XI. INDEMNIFICATION To the extent authorized by law, the RSVP agrees to indemnify, hold harmless, and defend the CITY, its officers, agents, and employees from and against any and all claims or suits for injuries, damage, loss, or liability of whatever kind or character, arising out of or in connection with the performance by the RSVP or those services contemplated by this Agreement, including all such claims or causes of action based upon common, constitutional or statutory law, or based, in whole or in part, upon allegations of negligent or intentional acts of RSVP, its officers, employees, agents, subcontractors, licensees and invitees. XH. CONFLICT OF INTEREST A. RSVP covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. RSVP further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. B. RSVP further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in or use his/her position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself/herself, or others; particularly those with which he/she has family, business, or other ties. C. No officer, member, or employee of City and no member of its governing body who exercises any function or responsibilities in the review or approval ofthe undertaking or carrying out of this Agreement shall participate in any decision relating to the Agreement which affects his personal interest or the interest in any corporation, partnership, or association in which he has direct or indirect interest. XIII. NOTICE Any notice or other written instrument required or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, or via hand-delivery or facsimile, addressed to RSVP or City, as the case may be, at the following addresses: Page 5 of 7 4-7 CITY City of Denton, Texas Attn: City Manager 215 E. McKinney Denton, TX 76201 Fax No. 940.349.8596 RSVP Diane Corona, Executive Director RSVP 1400 Crescent, Suite 3 Denton, TX 76201 Telephone No. 940.383.1508 Either party may change its mailing address by sending notice of change of address to the other at the above address by certified mail, return receipt requested. XIV. MISCELLANEOUS A. RSVP shall not transfer, pledge or otherwise assign this Agreement or any interest therein, or any claim arising thereunder to any party or parties, bank, trust company or other financial institution without the prior written approval of City. B. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. C. In no event shall any payment to RSVP hereunder, or any other act or failure of City to insist in any one or more instances upon the terms and conditions of this Agreement constitute or be construed in any way to be a waiver by City of any breach of covenant or default which may then or subsequently be committed by RSVP. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to City to enforce its rights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No .representative or agent of City may waive the effect of this provision. D. This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding, or other commitment occurring during the term of this Agreement, or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendment of this Agreement. E. This Agreement shall be interpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Agreement shall be in a court of competent jurisdiction sitting in Denton County, Texas. Page 6 of 7 IN WITNESS WHEREOF, the parties do hereby affix their signatures and enter into this Agreement as of the day of , 2010. GEORGE C. CAMPBELL, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: RSVP BY: DIANA CORONA EXECUTIVE DIRECTOR ATTEST: BY: BOARD SECRETARY Page 7 of 7 This page left blank intentionally . AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: City Manager's Office CM/DCM/ACM: George C. Campbell, City Manager SUBJECT: Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and Court Appointed Special Advocates to assist with funding of utilities, phone cost, local travel for child visits, and/or office supplies; providing for the expenditure of funds; and providing for an effective date. BACKGROUND: This agreement allows for the total expenditure of $600 (Council Member Jim Engelbrecht, $300; and Council Member Chris Watts, $300) from Council Contingency Funds. Key provisions of the agreement include: ■ Funds shall be used by the Organization to assist with funding of utilities, phone cost, local travel for child visits, and/or office supplies. ■ In addition to other reporting requirements, documentation in the form of cancelled checks and/or corresponding receipts specifically detailing expenditure of funds for the purpose provided is required for reimbursement from these designated funds. FISCAL INFORMATION Funding for the contract will come from respective Council contingency fund accounts. Respectfully submitted: George C. Campbell City Manager Prepared by: Linda Holley Executive Assistant sAlegallour documentslordinances1101serv agr ord-casa.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS, AND COURT APPOINTED SPECIAL ADVOCATES TO ASSIST WITH FUNDING OF UTILITIES, PHONE COST, LOCAL TRAVEL FOR CHILD VISITS, AND/OR OFFICE SUPPLIES; PROVIDING FOR THE EXPENDITURE OF FUNDS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Court Appointed Special Advocates ("CASA"), a Texas non-profit corporation, (the "Organization") provides court advocacy services for children to ensure a permanent place (the "Program'); and WHEREAS, the Organization and the City of Denton desire to enter into an agreement to provide for the continuance of the Program which agreement is substantially in the same form as the agreement attached hereto and made a part hereof by reference (the "Agreement"); and WHEREAS, the City Council of the City of Denton hereby finds that the Agreement between the City and the Organization attached hereto and made a part hereof by reference serve a municipal and public purpose and the Agreement is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this ordinance are incorporated by reference into the body of this ordinance as if fully set forth herein. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Agreement and to carry out the duties and responsibilities of the City under the Public Service Agreement, including the expenditure of funds as provided in the Public Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATT04NEY BY: 4 CADocuments and SettingsTAHOLLMLocal SettingsUemporary Internet FileslContent.Outlook1F52SUGAMervAgrnt-CASA.doc SERVICE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND COURT APPOINTED SPECIAL ADVOCATES This Agreement is hereby entered into by and between the City of Denton, Texas, a Home Rule Municipal Corporation, hereinafter referred to as "City", and Court Appointed Special Advocates, a Texas Non-Profit Corporation, hereinafter referred to as "CASA": WHEREAS, City has determined that the proposal for services merits assistance and can provide needed services to citizens of City and has provided funds in its budget for the purpose of phone cost, local travel for child visits, and office supplies; and WHEREAS, this Agreement serves a valid municipal and public purpose and is in the public interest as it will assist local non-profit agencies, schools, hospitals, and public safety organizations within the City, among other things; NOW, THEREFORE, the parties hereto mutually agree as follows: I. SCOPE OF SERVICES CASA shall in a satisfactory and proper manner perform the following tasks, for which the monies provided by City may be used: The funds being provided shall be used by CASA to assist with utilities, phone cost, local travel for child visits, and/or office supplies. 11. OBLIGATIONS OF CASA In consideration of the receipt of finds from City, CASA agrees to the following terms and conditions: A, Six Hundred Dollars and no/100 ($600.00) shall be paid to CASA by City to be utilized for the purposes set forth in Article I. B. CASA will maintain adequate records to establish that the City funds are used for the purposes authorized by this Agreement. C. CASA will permit authorized officials of City to review its books at any time. D. Upon request, CASA will provide to City its By Laws and any of its rules and regulations that may be relevant to this Agreement. E. CASA will not enter into any contracts that would encumber City finds for a period that would extend beyond -the term of this Agreement. cAdocuments and setdngsllaholleyliocal settingsVemporary internet fileslcontentoutlook\f52sugailserv agent-casa.doc F. CASA will appoint a representative who will be available to meet with City officials when requested. G. CASA will submit to City copies of year-end audited financial statements. III. TIME OF PERFORMANCE The services funded by City shall be undertaken and completed by Organization within the following time frame: The term of this Agreement shall commence on the effective date and terminate September 30, 2010, unless the contract is sooner terminated under Section VII "Suspension or Termination". IV. PAYMENTS A. PAYMENTS To CASA. City shall pay to CASA the sum specified in Article II after the effective date of this Agreement. B. EXCESS PAYMENT. CASA shall refund to City within ten (10) working days of City's request, any sum of money which has been paid by City and which City at any time thereafter determines: 1) has resulted in overpayment to CASA; or 2) has not been spent strictly in accordance with the terms of this Agreement; or 3) is not supported by adequate documentation to fully justify the expenditure. V. EVALUATION CASA agrees to participate in an implementation and maintenance system whereby the services can be continuously monitored. CASA agrees to make available its financial records for review by City at City's discretion. In addition, CASA agrees to provide City the following data and reports, or copies thereof: A. All external or internal audits. CASA shall submit a copy of the annual independent audit to City within ten (10) days of receipt. B. All external or internal evaluation reports. C. An explanation of any major changes in program services. D. To comply with this section, CASA agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of funds received and the services performed under this Agreement. The record system of CASA shall contain sufficient documentation to Page 2 of 7 cAdocuments and settingsllaholleyllocal setGngsVemporary intemet fileslcontent.outlooklt52suglulserv agmt-casa.doc provide in detail full support and justification for each expenditure. CASA agrees to retain all books, records, documents, reports, and written accounting procedures pertaining to the services provided and expenditure of funds under this Agreement for five years. E. Nothing in the above subsections shall be construed to relieve CASA of responsibility for retaining accurate and current records that clearly reflect the level and benefit of services provided under this Agreement. VI. DIRECTORS' MEETINGS During the term of this Agreement, CASA shall deliver to City copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof wherein this program is a part of the subject matter of the meeting. Such notice shall be delivered to City in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. CASA understands and agrees that City's representatives shall be afforded access to all meetings of its Board of Directors. Minutes of all meetings of CASA' governing body shall be available to City within ten (10) working days of approval. VII. TERMINATION The City may terminate this Agreement for cause if CASA violates any covenants, agreements, or guarantees of this Agreement, the CASA 's insolvency or filing of bankruptcy, dissolution, or receivership, or the CASA's violation of any law or regulation to which it is bound under the terms of this Agreement. The City may terminate this Agreement for other reasons not specifically enumerated in this paragraph. VIII. EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS A. CASA shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. B. CASA will furnish all information and reports requested by City, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal rules and regulations. C. In the event of non-compliance by CASA with the non-discrimination requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and CASA may be barred from further contracts with City. Page 3 of 7 cadocuments and settingsVaholleyVocal settingsltemporary intemet fileslcontent.oudook\f52sugailserv agmt-casa.doc IX. WARRANTIES CASA represents and warrants that: A. All information, reports and data heretofore or hereafter requested by City and furnished to City, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to City. B. Any supporting financial statements heretofore requested by City and furnished to City, are complete, accurate and fairly reflect the financial conditions of CASA on the date shown on said report, and the results of the operation for the period covered by the report, and that since said data, there has been no material change, adverse or otherwise, in the financial condition of CASA. C. No litigation or legal proceedings are presently pending or threatened against CASA. D. None of the provisions herein contravenes or is in conflict with the authority under which CASA is doing business or with the provisions of any existing indenture or agreement of CASA. E. CASA has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. F. None of the assets of CASA are subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the financial statements furnished by CASA to City. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment. X. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly provide that another method shall be used. B. It is understood and agreed by the parties hereto that changes in the State, Federal or .local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. C. CASA shall notify City of any changes in personnel or governing board composition. Page 4 of 7 cAdocuments and settingsllaholleyllocal settingsltempormy intemet fileslcontent.outlooklf52sugailserv agent-ma.doc XI. INDEMNIFICATION To the extent authorized by law, the CASA agrees to indemnify, hold harmless, and defend the CITY, its officers, agents, and employees from and against any and all claims or suits for injuries, damage, loss, or liability of whatever kind or character, arising out of or in connection with the performance by the CASA or those services contemplated by this Agreement, including all such claims or causes of action based upon common, constitutional or statutory law, or based, in whole or in part, upon allegations of negligent or intentional acts of CASA, its officers, employees, agents, subcontractors, licensees and invitees. XIL CONFLICT OF INTEREST A. CASA covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. CASA further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. B. CASA further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in or use his/her position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself/herself, or others; particularly those with which he/she has family, business, or other ties. C. No officer, member, or employee of City and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall participate in any decision relating to the Agreement which affects his personal interest or the interest in any corporation, partnership, or association in which he has direct or indirect interest. XHL NOTICE Any notice or other written instrument required or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, or via hand-delivery or facsimile, addressed to CASA or City, as the case may be, at the following addresses: Page 5 of 7 cAdocuments and settingsllaholleyllocal settingsltemporary internet fileslcontent.outlooklf52sugailserv agmt-casa.doc CITY City of Denton, Texas Attn: City Manager 215 E. McKinney Denton, TX 76201 Fax No. 940.349.8596 CASA Sherri Gideon, Executive Director CASA P.O. Box 2885 Denton, TX 76209 940.243.2272 Either party may change its mailing address by sending notice of change of address to the other at the above address by certified mail, return receipt requested. XIV. MISCELLANEOUS A. CASA shall not transfer, pledge or otherwise assign this Agreement or any interest therein, or any claim arising thereunder to any party or parties, bank, trust company or other financial institution without the prior written approval of City. B. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. C. In no event shall any payment to CASA hereunder, or any other act or failure of City to insist in any one or more instances upon the terms and conditions of this Agreement constitute or be construed in any way to be a waiver by City of any breach of covenant or default which may then or subsequently be committed by CASA. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to City to enforce its rights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of City may waive the effect of this provision. D. This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding, or other commitment occurring during the term of this Agreement, or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendment of this Agreement. E. This Agreement shall be interpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Agreement shall be in a court of competent jurisdiction sitting in Denton County, Texas. Page 6 of 7 cMocuments and settingsllaholleyWcal settingsltemporary intetnet fileslconlent.outlooklf52sugailserv agent-casa.doc IN WITNESS WHEREOF, the parties do hereby affix their signatures and enter into this Agreement as of the day of , 2010. CITY OF DENTON GEORGE C. CAMPBELL, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 1-~ ~ CASA BY: ) 1'4 ~e _ 5HERRI GIDEON EXECUTIVE DIRECTOR ATTEST: By. B ECRETARY Page 7 of 7 This page left blank intentionally . AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Karen Smith 349-7100 All ACM: Jon Fortune YT- SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an Interlocal Cooperative Purchasing Program Agreement with the City of Mesquite, Texas under Section 271.102 of the Local Government Code, to authorize participation in various City of Mesquite contracts for the purchase of various goods and services; authorizing the expenditure of funds therefor; and declaring an effective date (File 4509-Interlocal Agreement with City of Mesquite). FILE INFORMATION Section 271.102 of the Local Government Code, authorizes respective participating governments to enter into joint contracts and agreements for the purchase of necessary materials, supplies, and services. Over the past several years, the City of Denton and other entities have entered into cooperative purchasing agreement that have been highly beneficial to the taxpayers through anticipated savings. The attached Agreement is an authorization to participate in contracts awarded by the City of Mesquite and will remain in effect until terminated by either party. This Interlocal Agreement will allow the City of Denton to utilize contracts for supplies and services competitively bid by the City of Mesquite. In the past, we have purchased such items as police sedans, tires, corrugated metal pipe, lubricants, oils, road materials, and other supplies from similar agreements. The bid process followed by the City of Mesquite meets all State bidding requirements and bid opportunities are extended to all local suppliers. While a specific purchase for this Interlocal Agreement is not contemplated at this time, staff would like to have the agreement in place so that potential future purchases can be handled in the most expeditious manner possible. RECOMMENDATION Approve an Interlocal Cooperative Purchasing Program agreement with the City of Mesquite. PRINCIPAL PLACE OF BUSINESS City of Mesquite Mesquite, TX Agenda Information Sheet July 20, 2010 Page 2 ESTIMATED SCHEDULE OF PROJECT This Agreement is effective upon approval by the City of Denton and will remain in effect until terminated by either party. FISCAL INFORMATION At this time, specific purchases from this Interlocal Agreement have not been identified. Each future acquisition, based on this Agreement, will follow the City of Denton fiscal verification policy and be charged to the appropriate budget account. Respectfully submitted: Bryan Langley, 349-7100 Director of Finance I AIS-File 4509 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN INTERLOCAL COOPERATIVE PURCHASING PROGRAM AGREEMENT WITH THE CITY OF MESQUITE, TEXAS UNDER SECTION 271.102 OF THE LOCAL GOVERNMENT CODE, TO AUTHORIZE PARTICIPATION IN VARIOUS CITY OF MESQUITE CONTRACTS FOR THE PURCHASE OF VARIOUS GOODS AND SERVICES; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND DECLARING AN EFFECTIVE DATE (FILE 4509-INTERLOCAL AGREEMENT WITH CITY OF MESQUITE). THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee is hereby authorized to execute the Interlocal Cooperative Purchasing Program Agreement with the City of Mesquite under Section 271.102 of the Local Government Code, a copy of which is attached hereto and incorporated by reference herein (the "Agreement'). SECTION 2. The City Manager, or his designee is authorized to expend funds pursuant to the Agreement for the purchase of various goods and services. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 2-ORD-Interlocal Agreement With City of Mesquite STATE OF TEXAS COUNTY OF DALLAS INTERLOCAL COOPERATION AGREEMENT This Interlocal Cooperation Agreement ("Agreement") is by and between the City of Denton, Texas ("Denton"), and the City of Mesquite, Texas ("Mesquite"), acting by and through their authorized officers. RECITALS: WHEREAS, this Agreement is authorized by Chapter 791 of the Texas Government Code and Subchapter F, Chapter 271, Texas Local Government Code; and WHEREAS, Section 271.102 of the TEX. Loo. GOVT CODE authorizes a local government to participate in a Cooperative Purchasing Program with another local government or a local cooperative organization; and WHEREAS, a local government that purchases goods and services pursuant to a Cooperative Purchasing Program with another local government satisfies the requirement of the local government to seek competitive bids for the purchase of the goods and materials; and WHEREAS, each party has and will on an annual basis obtain competitive bids for the purchase of goods and services; and WHEREAS, the parties desire to enter into a cooperative purchasing program which will allow each party to purchase under goods and services under each other's competitively bid contracts pursuant to Subchapter F, Chapter 271 of the TEX. Loc. Gov'T CODE; NOW THEREFORE, in consideration of the mutual covenants and promises contained herein, the parties agree as follows: ARTICLE I PURPOSE The purpose of this Agreement is to establish a cooperative purchasing program between the parties, which will allow each party to purchase goods and services under each other's competitively bid contracts pursuant to Subchapter F, Chapter 271 of the TEX. Loc. GOV'T CODE. ARTICLE II TERM The term of this Agreement shall be for a period of one (1) year commencing on the last date of execution hereof ("Effective Date"). Thereafter this Agreement shall automatically renew for successive periods of one (1) year each under the terms and conditions stated herein, unless sooner terminated as provided herein. ARTICLE III TERMINATION Either party may terminate this Agreement by providing thirty (30) days prior written notice to the other party, ARTICLE IV PURCHASING The City Manager or designee for each of party is authorized to act on behalf of the respective party in all matters relating to this cooperative purchasing program. Each party shall make payments to the other party or directly to the vendor under the contract made pursuant to Subchapter F, Chapter 271 of the TEx. Loc. GOV'T CODE. Each party shall be responsible for the respective vendor's compliance with provisions relating to the quality of items and terms of delivery. ARTICLE V MISCELLANEOUS 5.1 Relationship of Parties: This Agreement is not intended to create, nor should it be construed as creating, a partnership, association, joint venture or trust. 5.2 Notice: Any notice required or permitted to be delivered hereunder shall be deemed received when sent in the United States Mail, Postage Prepaid, Certified Mail, Return Receipt Requested, or by hand-delivery or facsimile transmission addressed to the respective party at the address set forth below the signature of the party. 5.3 Amendment: This Agreement may be amended by the mutual written agreement of both parties hereto. 5A Severability: In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the other provisions, and the Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in this Agreement. 5.5 Governing Law: The validity of this Agreement and any of its terms and provisions as well as the rights and duties of the parties, shall be governed by the laws of the State of Texas; and venue for any action concerning this Agreement shall be in the State District Court of Dallas County, Texas. 5.6 Entire A reement: This Agreement represents the entire agreement among the parties with respect to the subject matter covered by this Agreement. There is no other collateral, oral or written agreement between the parties that in any manner relates to the subject matter of this Agreement. 5.7 Recitals: The recitals to this Agreement are incorporated herein. 5.8 Counterparts: This Agreement may be executed in any number of counterparts, each of whom shall be deemed an original and constitute one and the same instrument. EXECUTED this day of , 2010. CITY OF DENTON, TEXAS By: GEORGE CAMPBELL, CITY MANAGER 215 R McKinney Denton, Texas 75201 ATTEST: By: CITY SECRETARY EXECUTED this Y-K day of AU&[tZ__,20l0. UCITY OF MESOUITE By: MONACO, MAYOR 15 15 N. Galloway Avenue P.O, BOX 850137 Mesquite, TX 75149 ATTEST; c By: C TY S RETARY AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Jim Coulter 349-7194 ACM: Jon Fortune SUBJECT Consider adoption of an ordinance accepting competitive bids and awarding a public works contract for the constriction of the south Peak Flow Pump Station at the Pecan Creek Water Reclamation Plant; providing for the expenditure of funds therefor; and providing an effective date (Bid 4501- Pecan Creek Water Reclamation Plant Peak Flow Pump Station awarded to the lowest responsible bidder meeting specification, Crescent Constrictors, Inc. in the amount of $803,000). The Public Utilities Board recommends approval (4-0). BID INFORMATION During dry weather conditions the wastewater flows are transported in the sewer lines without surcharging the collection system, and the Pecan Creek Water Reclamation Plant (PCWRP) influent pump station is able to pump these flows into the treatment process. However, during wet weather conditions greater infiltration of groundwater into sewer lines due to saturated ground conditions, and inflow of rain water into manholes, broken cleanouts etc., increases the flow in sewer lines stressing the wastewater collection system carrying capacity. Also, the pumping capacity of the PCWRP influent pump station cannot keep up with the influent flow during wet weather conditions. To alleviate this infrequent storm induced peak flow condition, the accepted method is to temporarily store the excess flows in excess of the plant treatment capacity. This temporarily stored wastewater is then slowly brought back into the sewer system when the storm flows have subsided and the plant can handle the wastewater flows. A contract was awarded to Chiang, Patel & Yerby Inc. consulting engineers for the design of the peak flow storage basin and the pumping station on September 9, 2008. The wet weather peak flow pump station and the storage basin project were included in a 2008 impact fee update. The constriction cost of the project as included in the impact fee study is $2,125,995. The wet weather storage pond was constricted using Solid Waste crews and the liner impermeability testing data has been submitted to TCEQ. The peak flow pump station constriction plans and specifications were completed and the project was bid on June 1, 2010. Expenditures to date are $539,138, which includes the design of the wet weather pond and pump station, and constriction of the pond. Including the low bid of $803,000 for the pump station constriction and constriction inspection and testing during constriction, the total cost is projected at $1,400,000. This compares favorably to the impact fee project amount of $2,125,995. Agenda Information Sheet July 20, 2010 Page 2 PRIOR ACTION/REVIEW (Council, Boards, Commissions) This item was approved by the Public Utilities Board on June 14, 2010. RECOMMENDATION Award to Crescent Constrictors, Inc. in the amount of $803,000. PRINCIPAL PLACE OF BUSINESS Crescent Constrictors, Inc. Richardson, TX ESTIMATED SCHEDULE OF PROJECT The final completion date for this project is estimated to be twelve months from Notice to Proceed. FISCAL INFORMATION This project will be funded from account 6401312540. 13160.40100 in the amount of $366,000 and account 6401325319. 13160.40100 in the amount of $437,000. Requisition 98996 has been entered in the Purchasing software system. EXHIBITS Exhibit 1: Bid Tabulation Respectfully submitted: Bryan Langley, 349-7100 Director of Finance s x w T" Ln Iq m r r m w O V, i.i E I.i O FL I.i 1 I.i O III L~ ^L W ~I ~V i L U V x [ - O O O ti O "O ~ ~ O C/1 C/1 C/1 C/1 C/1 W U ~ O ~ x O O O C/1 C/1 C/1 C/1 C/1 Z W ~ ~ ~ O LU / U 69 O ~ Q ~ ~ ~ O C/1 C/1 C/1 C/1 C/1 W O 00 O O Z CA O W U ~ 69 '.O p Q x O O ° C~j o z > 61 U ~ O O 0 0 C~j 0 C/1 C/1 C/1 C/1 C/1 W p O ~4 > W ~9 H vi O Q U V V ~ 00 C/1 C/1 C/1 C/1 C/1 O V / U z O F m a _ c Cl) LU a CL ~4 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF THE SOUTH PEAK FLOW PUMP STATION AT THE PECAN CREEK WATER RECLAMATION PLANT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (BID 4501- PECAN CREEK WATER RECLAMATION PLANT PEAK FLOW PUMP STATION AWARDED TO THE LOWEST RESPONSIBLE BIDDER MEETING SPECIFICATION, CRESCENT CONSTRUCTORS, INC. IN THE AMOUNT OF $803,000). WHEREAS, the City has solicited, received and tabulated competitive bids for the constriction of public works or improvements in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and recommended that the herein described bids are the lowest responsible bids for the constriction of the public works or improvements described in the bid invitation, bid proposals and plans and specifications therein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following competitive bids for the constriction of public works or improvements, as described in the "Bid Invitations", "Bid Proposals" or plans and specifications on file in the Office of the City's Purchasing Agent filed according to the bid number assigned hereto, are hereby accepted and approved as being the lowest responsible bids: BID NUMBER CONTRACTOR AMOUNT 4501 Crescent Constrictors, Inc. $803,000 SECTION 2. The acceptance and approval of the above competitive bids shall not constitute a contract between the City and the person submitting the bid for constriction of such public works or improvements herein accepted and approved, until such person shall comply with all requirements specified in the Notice to Bidders including the timely execution of a written contract and furnishing of performance and payment bonds, and insurance certificate after notification of the award of the bid. SECTION 3. The City Manager is hereby authorized to execute all necessary written contracts for the performance of the constriction of the public works or improvements in accordance with the bids accepted and approved herein, provided that such contracts are made in accordance with the Notice to Bidders and Bid Proposals, and documents relating thereto specifying the terms, conditions, plans and specifications, standards, quantities and specified sums contained therein. SECTION 4. Upon acceptance and approval of the above competitive bids and the execution of contracts for the public works and improvements as authorized herein, the City Council hereby authorizes the expenditure of funds in the manner and in the amount as specified in such approved bids and authorized contracts executed pursuant thereto. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 3-ORD-Bid 401 AGENDA PUBLIC UTILITIES BOARD June 14, 2010 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, June 14, 2010 at 9:45 a.m. in the Service Center Training Room, City of Denton Service Center, 901-A Texas Street, Denton, Texas. Present: Chair Dick Smith, Vice Chair Bill Cheek, Bill Grubbs and Randy Robinson Ex Officio Members: George Campbell City Manager, Howard Martin, ACM Utilities Absent: Phil Gallivan, Barbara Russell, John Baines, all excused OPEN MEETING: CONSENT AGENDA: The Public Utilities Board has received background information, staff's recommendations, and has had an opportunity to raise questions regarding these items prior to consideration. 5) Consider recommending approval of the Bid No. 4501 for the South Peak Flow Pump Station at the Pecan Creek Water Reclamation Plant by Crescent Constrictors, Inc., Richardson, Texas, in the amount of $803,000. Board Member Robinson moved to approve with a second from Board Member Cheek. The motion was approved by a 4-0 vote. The meeting was adjourned by consensus at 10:36 a.m. AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Bryan Langley 349-7100 ACM: Jon Fortune SUBJECT Consider adoption of an ordinance rejecting any and all sealed proposals for a radio/telephone recorder system (including installation) for the City of Denton's Public Safety Departments (RFSP 4495); and providing an effective date. BID INFORMATION This item is for the rejection of all proposals received on RFSP 4495- Radio/Telephone Recorder system and Installation. On April 5, 2010, the City of Denton issued RFSP 4495 to solicit proposals for a new recording system that can record the following: all Police, Fire, and Animal Services radio traffic, Dispatch Department phone lines, and all other Voice Over Internet Protocol (VOID) extensions as the system will allow. Nine vendors submitted proposals that ranged in cost from $34,000 to $240,000 (a list of the vendors and dollar amounts is included in the attached ordinance Exhibit 1). When reviewing the broad variance in proposal amounts, staff determined that some of the wording in the RFSP may have contributed to some confusion among the vendors as to what type of system the Public Safety Departments were actually requiring. Therefore, it was determined that it is in the City's best interest to reject all proposals and issue a new Request for Sealed Proposals with revised specifications. RECOMMENDATION Reject all proposals submitted. ESTIMATED SCHEDULE OF PROJECT New specifications will be advertised and distributed contingent upon Council rejecting all proposals currently submitted. FISCAL INFORMATION No impact. EXHIBITS Exhibit 1: Ordinance Rejecting Proposals Agenda Information Sheet July 20, 2010 Page 2 Respectfully submitted: Bryan Langley, 349-7100 Director of Finance I-.CIS-RFSP 4495 r: july- 2010 agenda backup july- 20, 2010` backup`. 3n - rfsp 4495-radio telephone recorder system 2-ord-4495.doc ORDINANCE NO. AN ORDINANCE REJECTING ANY AND ALL SEALED PROPOSALS FOR A RADIO/TELEPHONE RECORDER SYSTEM (INCLUDING INSTALLATION) FOR THE CITY OF DENTON'S PUBLIC SAFETY DIVISIONS (RFSP 4495); AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City has solicited, received and tabulated competitive bids for a radio/telephone recorder system including installation (RFSP 4495) in accordance with the procedures of State laws and City ordinances; and WHEREAS, the City Council has determined that it is in the best interest of the City that the herein described bids should be rejected; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following competitive bids for the installation of a radio/telephone recorder system, as described in the "Bid Invitations", "Bid Proposals" or plans and specifications on file in the Office of the City's Purchasing Agent filed according to the request for proposal number assigned herein (for the equipment and installation of a radio/telephone recorder system-RFSP 4495) are hereby rejected: RFSP NUMBER CONTRACTOR 4495 Revcord Stancil Solutions Voice Print International Inc. Commercial Electronics Corp. ATO Solutions Corp. Vista Com (Non-Thinking) Vista Com (Thinking) N.I.C.E. Systems (No Server) N.I.C.E. Systems (Including Server) AMOUNT $ 34,330.50 $ 46,585.00 $ 55,385.00 $ 65,650.00 $ 67,883.00 $ 93,100.00 $ 99,825.00 $ 142,116.00 $ 240,503.00 SECTION 2. The City Manager is hereby authorized to execute all necessary documents for the rejection of said bids. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12010 MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 2-)RD-RFSP 4495 AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Phil Williams 349-8487 All ACM: Jon Fortune SYT- SUBJECT Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of additional radio communications equipment for the McKenna Park and Denton County Emergency Operations Communication sites which is available from only one source in accordance with the pertinent provisions of Chapter 252 of the Texas Local Government Code exempting such purchases from the requirements of competitive bidding; and providing an effective date (File 4516-Purchase of Communications Equipment for 2 Channel Expansion awarded to Motorola, Inc. in the amount of $169,642). The Public Utilities Board recommends approval (7-0). FILE INFORMATION In order to improve overall radio coverage for our public safety, utility, and public works radio users, the City Council approved the purchase of the Motorola radio equipment for a second radio site addition on October 6, 2009. In order to save the City of Denton the expenditure of constricting a radio tower for placement of the new equipment, we worked with the Denton County EOC team, and in the spirit of cooperation, negotiated the use of the Denton County EOC tower for the placement of our Motorola second site equipment. As part of the system upgrade, the Communications Department was able to acquire two new radio frequency channel licenses (which are rare and difficult to acquire). Additional equipment is required at the McKenna tower and Denton County EOC site to accommodate the two new expansion channels. The addition of two radio channels will enhance the system's ability to handle large volumes of radio traffic, which will accommodate future growth and interoperability with visiting agencies. This purchase will include equipment and services required to program, install, optimize and perform acceptance testing of the simulcast system. The SmartNet software quoted by Motorola for the two channel expansion is a proprietary protocol available only through Motorola. The software is needed to operate and interface with the SmartNet software already in place in the City's existing radio communications equipment. Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source do not have to be competitively bid. PRIOR ACTION/REVIEW (Council, Boards, Commissions) This item was approved by the Public Utilities Board on June 28, 2010. Agenda Information Sheet July 20, 2010 Page 2 RECOMMENDATION Award the purchase of additional 2 C hannel communication equipment to Motorola, Inc. in the amount of $169,642. PRINCIPAL PLACE OF BUSINESS Motorola, Inc. Farmers Branch, TX ESTIMATED SCHEDULE OF PROJECT The new equipment is estimated to be installed and in service approximately eight weeks after Council approval. FISCAL INFORMATION This project will be funded from account 602646496.1350.3970 in the amount of $84,385.50 (McKenna Park) and account 602033496.1350.3970 in the amount of $85,256.50 (Denton County E.O.C). Requisition#s 98551 and 98552 have been entered in the Purchasing software system. VV HIRITC Exhibit 1: Motorola Quotes Exhibit 2: Sole Source Letter Respectfully submitted: Bryan Langley, 349-7100 Director of Finance I-.CIS-File 4516 Exhibit 1 Qty. Model Number Denton County EOC Location Equipment • o POOR CITY OF DENTON TWO CHANNEL EXPANSION APRIL 12, 2010 EQUIPMENT LIST Description Pricing 1 Q2980 4 CHANNEL DIGITAC COMPARATOR $ 8,929.00 1 C175AGSP ADD: TONE KEYING WITH PRIORITY $ 1,937.00 1 CA4240ODD ADD: NO CABINET OR RACK $ - 1 T5365 QUANTAR/QUANTRO FAMILY MODEL $ 6,672.00 1 U752 ADD: POWER CORD, 12 FT AC, QTAR $ 50.00 1 X750 ADD: 800 MHZ BAND RX 806-825 MHZ/TX 851-870 MHZ, 1 $ 5,367.00 1 X777 ALT: ANALOG SIMULCAST $ 510.00 1 X997 A ENH: QUANTAR 6809 TRUNKING OPERATION $ 978.00 1 X153 ADD: HARDWARE, RACKMOUNT $ - $ - 1 T5365 QUANTAR/QUANTRO FAMILY MODEL $ 6,672.00 1 U752 ADD: POWER CORD, 12 FT AC, QTAR $ 50.00 1 X750 ADD: 800 MHZ BAND RX 806-825 MHZ/TX 851-870 MHZ, 1 $ 5,367.00 1 X777 ALT: ANALOG SIMULCAST $ 510.00 1 X997 A ENH: QUANTAR 6809 TRUNKING OPERATION $ 978.00 1 X153 ADD: HARDWARE, RACKMOUNT $ - 2 5883832X01 ADPTR WIRELINE 206 CUSTOM $ 159.00 2 5882653X37 ADAPTER CONN $ 110.00 2 3083271X10 CBL, ADAPTER $ 266.00 $ - Denton County EOC Location Equipment Pricing Services shown under separate quote Motorola Attn: Becky Smartt 1507 LBJ Freeway, Suite 700 Farmers Branch, Texas 75006 38,555.00 0 L~ CAA)AW401111 -A CITY OF DENTON TWO CHANNEL EXPANSION APRIL 12, 2010 EQUIPMENT LIST McKenna Park Location Equipment • nfu Mndpi Numhpr Descrintion Pricing -1 Q2980 4 CHANNEL DIGITAC COMPARATOR $ 8,929.00 1 C175AGSP ADD: TONE KEYING WITH PRIORITY $1,937.00 1 CA4240ODD ADD: NO CABINET OR RACK 1 TRN9788 HEAT BAFFLE SHIELD $ 90.00 1 0182643X07 DIGITAC INTERFACE $1,047.00 1 T5365 QUANTAR/QUANTRO FAMILY MODEL $ 6,672.00 1 U752 ADD: POWER CORD, 12 FT AC, QTAR $ 50.00 1 X750 ADD: 800 MHZ BAND RX 806-825 MHZ/TX 851-870 MHZ, 100-20 WATTS $ 5,367.00 1 X777 ALT: ANALOG SIMULCAST $ 510.00 1 X997 A ENH: QUANTAR 6809 TRUNKING OPERATION $ 978.00 1 X153 ADD: HARDWARE, RACKMOUNT 1 T5365 QUANTAR/QUANTRO FAMILY MODEL $6,672.00 1 U752 ADD: POWER CORD, 12 FT AC, QTAR $ 50.00 1 X750 ADD: 800 MHZ BAND RX 806-825 MHZITX 851-870 MHZ, 100-20 WATTS $ 5,367.00 1 X777 ALT: ANALOG SIMULCAST $ 510.00 1 X997 A ENH: QUANTAR 6809 TRUNKING OPERATION $ 978.00 1 X153 ADD: HARDWARE, RACKMOUNT 2 5882653X37 ADAPTER CONN $ 159.00 2 3083271X10 CBL, ADAPTER $ 110.00 McKenna Park Location Pricing Total Services shown under separate quote Motorola Attn: Becky Smartt 1507 LBJ Freeway, Suite 700 Farmers Branch, Texas 75006 39,426.00 0 1.1 System Overview 1.1.1 System Design Motorola is currently in the executing phase of the two-site 800MHz twelve (12) channel Trunked Analog SMARTNET Simulcast System for the City of Denton. At the request of the City, Motorola proposes a two channel expansion which will make this a 14 channel simulcast system. This system description will outline the equipment needed for adding two additional channels to the system. The new frequencies added are shown in the table below (Channel 13 and 14). Trunkin Frequencies City of Denton, McKenna Park and Denton EOC Tower Sites Original After r banding Channel # Call Si Transmit frequency, MHz Receive frequency, MHz Transmit frequency, MHz Receive frequency, MHz Channel Type 1 WNGC433 860.3125 815.3125 858.5875 813.5875 Control/Voice 2 WNGC433 859.3125 814.3125 859.3125 814.3125 Control/Voice 3 WNGC433 858.3125 813.3125 858.3125 813.3125 Control/Voice 4 WNGC433 857.3125 812.3125 857.3125 812.3125 Control/Voice 5 WNGC433 856.3125 811.3125 856.3125 811.3125 Voice Only 6 WNGC433 854.5625 809.5625 854.5625 809.5625 Voice Only 7 WNGC433 856.5875 811.5875 856.5875 811.5875 Voice Only 8 WNGC433 858.5875 813.5875 854.1375 809.1375 Voice/BSI 9 WPZZ800 855.8875 810.8875 855.8875 810.8875 Voice Only 10 WPZZ800 855.8625 810.8625 855.8625 810.8625 Voice Only 11 WPZZ800 855.3625 810.3625 855.3625 810.3625 Voice Only 12 WPZZ800 855.1875 810.1875 855.1875 810.1875 Voice/BST 13 WNGC433 854.2375 809.2375 854.2375 809.2375 Voice Only 14 WNGC433 854.4875 809.4875 854.4875 809.4875 Voice Only Table 1. City of Denton Trunking Frequencies City of Denton, TX Analog SMARTNET Simulcast System Motorola Confidential Restricted System Description 8114/2009 1-1 1.1.2 Project Responsibilities and Assumptions Motorola has based the system design on information gathered from meetings with the City of Denton and an analysis of their existing system. All assumptions have been listed below for the City's review. Should Motorola's assumptions be deemed incorrect or not agreeable to the City of Denton, a revised proposal with the necessary changes and adjusted costs will be required. Changes to the equipment or scope of the project after contract will require a change order. Motorola has made the following assumptions for this proposal: ❖ The City of Denton is responsible for all Regional Submittals and FCC licensing required to operate 14 channels at simulcast tower sites, the dispatch control center and subscribers on the new simulcast system. Motorola will install, ground, and bond all equipment provided by Motorola as part of this proposal. -3 Software upgrades may be necessary if the channel expansion project is conducted after Simulcast implementation is complete. ❖ The two new frequencies added to the system must fall within the isolation specifications of the simulcast combining and multiplexing equipment. 1.2 System Components 1.2.1 McKenna Park Tower Site This site houses the City's Prime and a co-located remote site. At the City's request Motorola accommodated some equipment for channel expansion in the ongoing Simulcast project. This equipment is outlined below. o Prime Simulcast Controller a USCI o Site Standard o Prime Channel Banks o Remote Simulcast Controllers o Transmit Combiners o Receive Multicoupler City of Denton, TX Analog SMARTNET Simulcast System Motorola Confidential Restricted System Description 811 412 0 0 9 1-2 Other than the equipment mentioned above, the following items are required in order to make the current system a fourteen channel Simulcast System. Motorola will provide, install and integrate this equipment with the current system. o Two DigiTAC Comparators o One Digitac Interface Panel o Two Quantar Simulcast Repeaters 1.2.2 Denton County EOC Tower Site At the Denton EOC the following equipment will be required to expand the current system to 14 channels. o Two Quantar Simulcast Repeaters 1.3 Acceptance Test Plan A FATP for this channel expansion project will be conducted in conjunction with the ATP of the Simulcast System. Pricing: Equipment Pricing is shown attached and identified by equipment required at the McKenna Park Site and equipment required at the Denton County EOC site Services: Total Services required to program, install, optimize all equipment as identified above in Item 1.1.2. Total Services Cost - $91,661.00 City of Denton, TX Analog SMARTNET Simulcast System Motorola Confidential Restricted System Description 8114/2009 1-3 Exhibit 2 ®sN a !o'L a 21 V, ' 010 i c1 Dmwi texas Attn: J i 901- T a Dent, 4 i. '`6 CaI -1" Tl, 'llk ""ou for Vie 1 LO provide The City of --rrio)i v ii h, x:~i~;z ir1~ ~ . 1 3 arA Arcing information to a.r_Yr'a-srporai audition channels into your Radio _ $i? L L 7Cs t': Zf'l fjs C1 f r L~C l lf) _LLI ' CqL l il~fl T l c?.'C 1~[ 1 C, w C` I fiw t~le NdI' o t s}f"1 irC} t ~t)LETCe P 1"0 C1-1T'E.YI_c Y1i.`? Gl-ni ;ES?i 1711L1 r j4L eCll1a ? skf:'YE lSl'iii 1 1 5 t1]7 €}7. it A iton 2z S4S The ,,t S )l"4+','lre i i existing equi;pii cwc, , well ci , 7i~'te Yi(,-t~~ euiptrtc'f netA d f~lf i.,' -,iioiial. Cjsm3 c-`,, is lvlotl~irv..fin p op.i.J tary pr{3'tCi` of s.:€.~1,`. only j t ~..11:7.~ .~i.~ S;~1lL)L1gS .010;'Jij- Thank you for y( orb u d inter, iji ~Aotcc)a n -3 and we value our with..,. The City of terse d-f W Lo contact me if you shouT 1 h'i ~ a questions or eq,,.lyc: I'tuti. cr 1`uC ; , ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THE EXPENDITURE OF FUNDS FOR THE PURCHASE OF ADDITIONAL RADIO COMMUNICATIONS EQUIPMENT FOR THE MCKENNA PARK AND DENTON COUNTY EMERGENCY OPERATIONS COMMUNICATION SITES WHICH IS AVAILABLE FROM ONLY ONE SOURCE IN ACCORDANCE WITH THE PERTINENT PROVISIONS OF CHAPTER 252 OF THE TEXAS LOCAL GOVERNMENT CODE EXEMPTING SUCH PURCHASES FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 4516-PURCHASE OF COMMUNICATIONS EQUIPMENT FOR 2 CHANNEL EXPANSION AWARDED TO MOTOROLA, INC. IN THE AMOUNT OF $169,642). WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including; items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following purchase of materials, equipment or supplies, as described in the "File" listed hereon, and on file in the office of the Purchasing Agent, and the license terms attached are hereby approved: FILE NT FNTRFR VFNF)C)R A li C)T TNT 4516 Motorola, Inc. $169,642 SECTION 2. The acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all requirements specified by the Purchasing Department. SECTION 3. The City Manager is hereby authorized to execute any contracts relating to the items specified in Section 1 and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 4-ORD-File 4516 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 DRAFT MINUTES PUBLIC UTILITIES BOARD June 28, 2010 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas was present, the Chair of the Public Utilities Board thereafter convened into an open meeting on Monday, June 28, 2010 at 9:02 a.m. in the Service Center Training Room, City of Denton Service Center, 901-A Texas Street, Denton, Texas. Present: Chair Dick Smith, Vice Chair Bill Cheek, Bill Grubbs, Randy Robinson, Phil Gallivan, Barbara Russell and John Baines Ex Officio Member: Howard Martin, ACM Utilities Absent: Ex Officio Member: George Campbell City Manager OPEN MEETING: CONSENT AGENDA: The Public Utilities Board has received background information, staff's recommendations, and has had an opportunity to raise questions regarding these items prior to consideration. 1) Consider recommending approval for the purchase of equipment and services required to enhance the two-site 800MHz twelve (12) channel Trunked Analog SMARTNET Simulcast System to fourteen (14) channels from Motorola for $169,642. Board Member Gallivan moved to approve Item I with a second from Board Member Baines. The motion was approved by a 7-0 vote. The meeting was adjourned by consensus at 9:50am. This page left blank intentionally . AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Materials Management All ACM: Jon Fortune YT- Questions concerning this acquisition may be directed to Jiro Coulter 349-7194 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of Traffic Signal Controllers and Video Equipment for the City of Denton Traffic Department, which is available from only one source in accordance with the pertinent provisions of Chapter 252 of the Texas Local Government Code exempting such purchases from the requirements of competitive bidding; and providing an effective date (File 4527-Traffic Signal Controllers and Video Equipment awarded to Paradigm Traffic Systems, Inc. in the estimated amount of $350,000). FILE INFORMATION This item is for the expenditure of funds for the purchase of any Econolite Control products including traffic signal controllers and video equipment for the City of Denton Traffic Department. The Traffic Department currently uses only Econolite Solo Pro Terra video cameras and Econolite controllers because of system compatibility. Other controller and video manufactured products are not able to link up and communicate with our traffic management system and software packages. Paradigm Traffic System, Inc. is the exclusive distributor of Econolite Control Products in the State of Texas; therefore, this is a sole source acquisition. Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, do not have to be competitively bid. RECOMMENDATION Award the expenditure of funds for the purchase of traffic signal controllers and video equipment for the City of Denton Traffic Department to Paradigm Traffic Systems, Inc. in the estimated amount of $350,000 per the attached price list which expires December 31, 2010 (Exhibit 1). PRINCIPAL PLACE OF BUSINESS Paradigm Traffic Systems, Inc. Arlington, Texas Agenda Information Sheet July 20, 2010 Page 2 ESTIMATED SCHEDULE OF PROJECT These items can be delivered and installed within 30-45 days of receipt of an order. FISCAL INFORMATION This item will be funded from various Capital Improvement Projects, reimbursement funds, and from the 2009-10 Traffic Signal Maintenance Budget as applicable. Respectfully submitted: Bryan Langley, 349-7100 Director of Finance Attachment 1: Quotation from Paradigm Traffic Systems, Inc. Attachment 2: Sole Source Letter I-.CIS-File 4527 Exhibit 1 (817) 831-9406 ph (817) 831-9407 fx PARADIGM TRAFFIC SYSTEMS, INC. P.O. Box 14509 Ft. Worth, TX 76117 QUOTATION TO: City of Denton 801 Texas Street Denton, TX 76209 attn: Scott Wilson ph: 940-349-8491 fax: 940-349-7307 E-mail: SCOtt.WilsonRCltyofdenton.com RFQ: 2010 Econolite Pricelist Valid thru December 31, 2010 DATE 6117110 SLSMN JJ DELIVERY 30-45 Days ARO FREIGHT PPD & Allowed SHIP VIA Best Way F.O.B. Destination TERMS NET 30 QUOTE # Q10382JJ ITEM QTY DESCRIPTION UNIT PRICE TOTAL PRICE Econolite Controller Equipment 1 1 Econolite ASC/3-21110100000 Controller w/ Ethernet Port & Data $2,050.00 $2,050.00 2 1 Data Key Upgrade for ASC/3(100-1007-501) $100.00 $100.00 3 1 Henke "D" Harnass for Econolite $60.00 $60.00 4 1 Econolite ASC/2M1000 Master Controller w/ RS232 $3,175.00 $3,175.00 Econolite Solo Pro Video Equipment 5 1 Solo Pro II Camera (704120) $3,775.00 $3,775.00 6 1 80' Solo Pro MVP Cable $150.00 $150.00 7 1 Camera Mounting Bracket (AS-0175-1-84) $115.00 $115.00 8 1 Mini-Hub II I/F Sets $80.00 $80.00 9 1 Comm. Interface Panel, Stacked (ACIP4SD) $1,180.00 $1,180.00 10 1 Comm. Interface Panel, Stacked, Ethernet (ACIP4ED) $1,300.00 $1,300.00 11 1 ACIP Power Panel (ACP 340) $182.00 $182.00 12 1 Mini-Hub II $581.00 $581.00 13 1 Serial Mouse $30.00 $30.00 14 1 Solo Pro Communication & Power Cable $1.20 $1.20 Econolite Solo Terra Video Equipment 15 1 Solo Terra (ASOLOTERRA1S) $3,495.00 $3,495.00 16 1 Camera Mounting Bracket (AS-0175-1-84) $115.00 $115.00 17 1 Terra Access Point (ATAPE) $1,700.00 $1,700.00 18 1 Terra Interface Panel (ATIP1) $570.00 $570.00 19 1 TIP to TAP I/F Cable Kit, 24 I/O (ASTCBL12) $85.00 $85.00 20 1 ACIP Power Panel (ACP-340) $200.00 $200.00 21 1 Solo Terra Software & Manuals (ASOLOSST) N/C 22 1 CAT-5E Patch Cable, 7' $6.00 $6.00 23 1 USB Mouse $15.00 $15.00 24 1 Solo Terra Cable (3 Conductor, 16 AWG) ($/FT) $0.80 $0.80 10382JJ. quote DATE 6117110 SLSMN JJ DELIVERY 30-45 Days ARO FREIGHT PPD & Allowed SHIP VIA Best Way F.O.B. Destination TERMS NET 30 QUOTE # Q10382JJ ITEM QTY DESCRIPTION UNIT PRICE TOTAL PRICE Econolite Solo Terra Video Detection Kits 25 1 3-Camera Solo Terra Video Detection Systems c/o: $13,406.00 $13,406.00 3ea Solo Terra (ASOLOTERRA1S) 3ea Camera Mounting Bracket (AS-0175-1-84) lea Terra Access Point (ATAPE) lea Terra Interface Panel (ATIP1) lea TIP to TAP I/F Cable Kit, 24 I/O (ASTCBL12) lea ACIP Power Panel (ACP-340) lea CAT-5E Patch Cable, 7' lea USB Mouse 26 1 Econolite 4-Camera Solo Terra Video Detection Systems c/o: $16,976.00 $16,976.00 4ea Solo Terra (ASOLOTERRA1S) 4ea Camera Mounting Bracket (AS-0175-1-84) lea Terra Access Point (ATAPE) lea Terra Interface Panel (ATIP1) lea TIP to TAP I/F Cable Kit, 24 I/O (ASTCBL12) lea ACIP Power Panel (ACP-340) lea CAT-5E Patch Cable, 7' lea USB Mouse 27 1 Econolite 6-Camera Solo Terra Video Detection Systems c/o: $24,236.00 $24,236.00 6ea Solo Terra (ASOLOTERRA1S) 6ea Camera Mounting Bracket (AS-0175-1-84) lea Terra Access Point (ATAPE) lea Terra Interface Panel (ATIP1) lea TIP to TAP I/F Cable Kit, 24 I/O (ASTCBL12) lea ACIP Power Panel (ACP-340) lea CAT-5E Patch Cable, 7' lea USB Mouse ADD 6% FOR CREDIT CARD PAYMENT TOTAL $73,584.00 Thank you for the opportunity to submit a proposal to you on this equipment. Please reference this quotation (by OFFERED BY: QTE number) when placing order. If you have any questions please call or send a fax to me. This quote is valid for 60 days. Thereafter it is subject to Jackie Jameson change without notice. Paradigm Traffic Systems, Inc. Farlarni infE 7r%-7r,7n'Ad1 10382JJ. quote Exhibit 2 June 16, 2010 Scott Wilson City of Denton, TX Dear Mr. Wilson Tl, i , LA[c- i , t confirm that Paradigm Traffic ` s,tc n-i, is the soic, dis[-r ilDut or for Pcon lite C; ,,wl PT ducts, Inn- in the state of Texas, For you r entire Ec nolit Product creeds please contact the Jackie with Paradigm Traffic ti >tc rE1 SinCnrr is, i Putt a LTT)rohti ^ GIOW O-r' l Pr'OdLrr inc, CC: ki(- Cie Jameson I I~iradigrn Traffic yJ(~ rn<; V "c ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THE EXPENDITURE OF FUNDS FOR THE PURCHASE OF TRAFFIC SIGNAL CONTROLLERS AND VIDEO EQUIPMENT FOR THE CITY OF DENTON TRAFFIC DEPARTMENT, WHICH IS AVAILABLE FROM ONLY ONE SOURCE IN ACCORDANCE WITH THE PERTINENT PROVISIONS OF CHAPTER 252 OF THE TEXAS LOCAL GOVERNMENT CODE EXEMPTING SUCH PURCHASES FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 4527 TRAFFIC SIGNAL CONTROLLERS AND VIDEO EQUIPMENT AWARDED TO PARADIGM TRAFFIC SYSTEMS, INC. IN THE ESTIMATED AMOUNT OF $350,000). WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including; items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following purchase of materials, equipment or supplies, as described in the "File" listed hereon, and on file in the office of the Purchasing Agent, and the license terms attached are hereby approved: FILE NUMBER VENDOR AMOUNT 4527 Paradigm Traffic Systems, Inc. $350,000 SECTION 2. The acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all requirements specified by the Purchasing Department. SECTION 3. The City Manager is hereby authorized to execute any contracts relating to the items specified in Section 1 and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 4-ORD-File 4527 This page left blank intentionally . AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Materials Management All ACM: Jon Fortune YT- Questions concerning this acquisition may be directed to Vance Kemler 349-8044 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of Retaining Wall Materials for constriction of a Screening Wall at Phase 3, Cell A at the City of Denton Landfill which is available from only one source in accordance with the pertinent provisions of Chapter 252 of the Texas Local Government Code exempting such purchases from the requirements of competitive bidding; and providing an effective date (File 4532-Purchase of Retaining Wall Materials for City of Denton Landfill awarded to Stone Strong, LLC in the amount of $87,175). The Public Utilities Board recommends approval (5-0). FILE INFORMATION In 1996, the City applied to the state to expand its Landfill operation within the boundary of its property. It was granted a permit amendment to expand the facility in October 1997. As part of the permitting process, the City's staff worked with several neighboring land owners to address their issues concerning the Landfill expansion. A formal agreement was reached with those land owners which were classified as affected parties. Among the issues that were resolved between the City and the affected parties was their request that the Landfill daily disposal operations not be visible from the road (Mayhill Road). The City agreed to provide screening berms and established a landscaping plan to plant trees in the buffer zone between the west side of the Landfill and Mayhill Road. We have been operating in the south portion of Phase 3 since February 2009. This filling operation initially was conducted below the surrounding ground elevation. This year the filling operation has been above the elevation of the Old Edwards Road and Quail Creek Road. An adjacent property owner has indicated his concern about having to see the Landfill daily operations. The existing earthen berm that would provide a visual screen for this property owner is too low. There is not an adequate amount of space in the southeast corner of the property to build a taller and wider earthen berm with earthen slopes. The alternative is to install a block screening wall or a packed earth wall. The packed earth screening wall would be visually undesirable and not an acceptable solution to the neighbors. The packed earth wall also has a higher ongoing maintenance cost than the block screening wall. This item is for the purchase of materials to constrict a block screening wall; the labor will be provided by Solid Waste employees. Agenda Information Sheet July 20, 2010 Page 2 FILE INFORMATION (CONTINUED) Stone Strong, LLC is the exclusive distributor of Stone Strong Systems in the State of Texas; therefore, this is a sole source acquisition. Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, do not have to be competitively bid. PRIOR ACTION/REVIEW (Council, Boards, Commissions) This item was approved by the Public Utilities Board on July 12, 2010. RECOMMENDATION Award the expenditure of funds for the purchase of Landfill Retaining Wall Materials to Stone Strong, LLC in the amount of $87,175. PRINCIPAL PLACE OF BUSINESS Stone Strong, LLC Lincoln, NE ESTIMATED SCHEDULE OF PROJECT Constriction of the Retaining Wall is estimated to be completed within three months of receipt of the materials. FISCAL INFORMATION This item will be funded from account 660543592.1350.30100. Requisition 99174 has been entered in the Purchasing software system. VV HIRITC Exhibit 1: Quotation from Stone Strong, LLC Exhibit 2: Sole Source Letter Respectfully submitted: r Bryan Langley, 349-7100 Director of Finance I-.CIS-File 45 32 Exhibit 1 STONE STRONG of TEXAS TO: DATE: July 2, 2010 City Of Denton 1527 S. Mayhil) Rd REFERENCE: Landfill Screening Wall Denton, Tx. 76208 PROPOSAL FOR LANDFILL SCREENING WALL PHASE - IX 4,410 square feet of Stone Strong Retaining Wall @ $17.50 Shipping 25 loads @ $ 400.00 per load $ 77,175.00 $ 10,000.00 TOTAL AMOUNT $ 87,175.00 This Quote Contains the Following Quantities Based On the Drawings Dated 5/11/2010 - 140 units 24sf blocks - 19 units 24sf top block - 38 units 6 sf block - 25 units 6 sf top block - 5 units 3 sf block - 10 units corner block - 9 units end block If you have any questions in regards to this proposal please give me a call. Thanks, Jody DuBois 904-389-7583 Jody DuBois -Strong Strong Systems of Texas • Sales/Engineering Manager • P.O. Box 835 • Justin, TX 76247 • ph (940) 389-7583 • fx (940) 648-2958 www.stonestrong.com • jody@stonestrongoftexas.com Exhibit 2 O ' T NE 43STRONG ys,te ms June 16, 2010 City Request RE: CITY OF DENTON Denton Landfill Screening Wall To Whom It May Concern: This letter is to serve as notification that Stone Strong of Texas is the exclusive producer of Stone Strong Systems in Texas. Stone Strong is a patented product-, U.S. Patent No. 6,796,098 and 7,073,304 and the name Strong Systems is a Registered Trademark. All information pertaining to Stone Strong is copyright protected as well. Stone Strong has been in business since 2001. Information regarding Stone Strong can be obtained from the website www.sto estra g.ca If any additional information pertaining to the use of the Stone Strong Systems is required, please forward it to my attention for further assistance. All project specific requests, i.e., engineering and pricing should be directed to Jody DuBois 940-389-7583, with Stone Strong of Texas. Sincerely, ~rJohn Gran President Stone Strong, LLC S ,rF~in ,Sts . Sete r P: L I r3 r,~ [ rt ~f~ ~i8 0rf 402 4'34 5 S ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THE EXPENDITURE OF FUNDS FOR THE PURCHASE OF RETAINING WALL MATERIALS FOR CONSTRUCTION OF A SCREENING WALL AT PHASE 3, CELL A AT THE CITY OF DENTON LANDFILL WHICH IS AVAILABLE FROM ONLY ONE SOURCE IN ACCORDANCE WITH THE PERTINENT PROVISIONS OF CHAPTER 252 OF THE TEXAS LOCAL GOVERNMENT CODE EXEMPTING SUCH PURCHASES FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 4532-PURCHASE OF RETAINING WALL MATERIALS FOR CITY OF DENTON LANDFILL AWARDED TO STONE STRONG, LLC IN THE AMOUNT OF $87,175). WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including; items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following purchase of materials, equipment or supplies, as described in the "File" listed hereon, and on file in the office of the Purchasing Agent, and the license terms attached are hereby approved: FILE NT FNTRFR VFNF)C)R A li C)T TNT 4532 Stone Strong, LLC $87,175 SECTION 2. The acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all requirements specified by the Purchasing Department. SECTION 3. The City Manager is hereby authorized to execute any contracts relating to the items specified in Section 1 and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 4-ORD-File 4532 AGENDA PUBLIC UTILITIES BOARD July 12, 2010 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, July 12, 2010 at 9:45 a.m. in the Service Center Training Room, City of Denton Service Center, 901-A Texas Street, Denton. Present: Chair Dick Smith, Vice Chair Bill Cheek, Bill Grubbs, Phil Gallivan, and Barbara Russell. Ex Officio Members: George Campbell City Manager, Jim Coulter, Acting ACM Utilities Absent: Randy Robinson and John Baines, all excused OPEN MEETING: CONSENT AGENDA: The Public Utilities Board has received background information, staff's recommendations, and has had an opportunity to raise questions regarding these items prior to consideration. 4) Consider recommending approval of the acquisition of retaining wall materials in the amount of $87,175.00 from Stone Strong of Texas, Inc. of Justin, Texas, said purchase being a "sole source" item, for the constriction of a screening wall to screen the landfill operation in Phase 3, Cell 3A from Mayhill Road. Board Member Cheek moved to approve with a second from Board Member Grubbs. The motion was approved by a 5-0 vote. The meeting was adjourned by consensus at 10:00 a.m. This page left blank intentionally . AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Finance ACM: Jon Fortune SUBJECT Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager or his designee, to enter into an Interlocal Agreement with Denton County for the County to provide property tax billing and collection services for the City of Denton; providing a savings clause and providing an effective date. BACKGROUND This Interlocal Agreement for tax collection services to be performed by Denton County was initially established in March 2007. At that time, the agreement was exclusive to the processing of statements and supplemental payments for the 2007 tax year and subsequent tax years. In August 2008, the City Council renewed the Interlocal Agreement, and included a provision for all tax years to be included in processing supplemental tax payments. The County currently processes tax statements (approximately 39,500 accounts) and tax supplemental payments on the City's behalf. This arrangement is efficient because one entity is responsible for billing and collecting payments for all three taxing entities (the City, the County and the School District). This Interlocal Agreement continues to authorize Denton County to process tax statements and payments on behalf of the City of Denton. There are no substantial changes to the contract for 2010. The price for this service remains the same, at $0.74 per statement. The County will process the initial tax statements in October, with two delinquent mailings before April 1 and July 1. RECOMMENDATION Staff recommends approval of continuing the Interlocal Agreement with Denton County to provide tax processing services for the 2010 tax year. PRIOR ACTION/REVIEW City Council Meeting, March 6, 2007 - The City Council approved an Interlocal Agreement with Denton County, establishing tax billing and collection management on behalf of the City of Denton for tax years 2007 and forward. Agenda Information Sheet July 20, 2010 Page 2 City Council Meeting, August 19, 2008 - The City Council approved an Interlocal Agreement with Denton County for the County to provide property tax billing and collection services for the City of Denton, repealing Subsection 10-2(B) of the City Code and all ordinances allowing the split-payment option for payment of property taxes. City Council Meeting, August 18, 2009 - The City Council approved an Interlocal Agreement with Denton County to provide property tax billing and collection services for the City of Denton, for the tax year 2009. FISCAL INFORMATION Under the current Interlocal Agreement, the City pays the County for receipting, bookkeeping, issuing and mailing of the tax statements. Expenditures for the 2009 tax year are currently $31,220. Proposed fees for the 2010 tax year (which are the same as the 2009 contract): $0.74 per initial statement processing in October and delinquent statement processing before April 1 and July 1. Respectfully Submitted By: Bryan Langley Director of Finance salegallour documentslordinances\Mdenton county property tax interlocal agreement.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO ENTER INTO AN INTERLOCAL AGREEMENT WITH DENTON COUNTY FOR THE COUNTY TO PROVIDE PROPERTY TAX BILLING AND COLLECTION SERVICES FOR THE CITY OF DENTON; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton (the "City") and Denton County (the "County") desire to enter into an Interlocal Cooperation Agreement for the County through its duly elected tax assessor-collector to act as tax assessor and collector for the City property tax collection (Interlocal Agreement); and WHEREAS, the County is well equipped to perform this service; and WHEREAS, the City Council finds that the Interlocal Agreement is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this Ordinance are incorporated herein by reference. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Interlocal Agreement of behalf of the City with the County. The City Manager, or his designee, is hereby authorized to carry out the rights and duties of the City under the Interlocal Agreement including the expenditure of funds provided for therein. SECTION 3. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTOP,;gEY BY: INTERLOCAL COOPERATION AGREEMENT - TAX COLLECTION THIS AGREEMENT is made and entered into this day of 2010, by and between DENTON COUNTY, a political subdivision of the State of Texas, hereinafter referred to as "COUNTY," and, the City/Town of DENTON, Denton County, Texas, also a political subdivision of the State of Texas, hereinafter referred to as "MUNICIPALITY." WHEREAS, COUNTY and MUNICIPALITY mutually desire to be subject to. the provisions of V.T.C.A. Government Code, Chapter 791, the Interlocal Cooperation Act, and V.T.C.A., Tax Code, Section 6.24 and 25.17 and; WHEREAS, MUNICIPALITY has the authority to contract with the COUNTY for the COUNTY to act as tax assessor and collector for MUNICIPALITY and COUNTY has the authority to so act; NOW THEREFORE, COUNTY and MUNICIPALITY, for and in consideration of the mutual promises, covenants, and agreements herein contained, do agree as follows: I. The effective date of this Agreement shall be the I" day of October, 2010. The term of this Agreement shall be for a period of one year, from October 1, 2010, to and through September 30, 2011. This Agreement shall be automatically renewed for an additional one (1) year term at the discretion of the COUNTY and MUNICIPALITY, unless written notice of termination is provided by the terminating party to the other party Page Iof11 prior to one hundred-fifty (150) days of the expiration date of the initial term of the Agreement. II. For the purposes and consideration herein stated and contemplated, COUNTY shall provide the following necessary and appropriate services for MUNICIPALITY to the maximum extent authorized by this Agreement, without regard to race, sex, religion, color, age, disability, or national origin: 1. COUNTY, by and through its duly qualified tax assessor-collector, shall serve as tax assessor-collector for MUNICIPALITY for ad valorem tax collection for tax year 2010, and each tax year for the duration of this Agreement. COUNTY agrees to perform all necessary ad valorem assessing and collecting duties for MUNICIPALITY and MUNICIPALITY does hereby expressly authorize COUNTY to do and perform all acts necessary and proper to assess and collect taxes for MUNICIPALITY. COUNTY agrees to collect base taxes, penalties, interest, and attorney's fees. 2. COUNTY agrees to prepare and mail all tax statements; provide monthly collection reports to MUNICIPALITY; prepare tax certificates; develop and maintain both current and delinquent tax rolls; meet the requirements of Section 26.04 of the Texas Tax Code; and to develop and maintain such other records and forms as are necessary or required by State law, rules, or regulations. 3. COUNTY further agrees that it will calculate the effective tax rates and rollback tax rates for MUNICIPALITY and that such calculations will be provided at no additional cost to MUNICIPALITY. The information concerning the effective and rollback tax rates will be published in the form prescribed by the Comptroller of Public Page 2 of 11 Accounts of the State of Texas, and as required by Section 26.04 of V.T.C.A. Tax Code. MUNICIPALITY shall notify tax assessor-collector at least 7 days before MUNICIPALITY wishes publication of forms specified in this section. It is understood and agreed by the parties that the expense of publication shall be borne by MUNICIPALITY and that COUNTY shall provide MUNICIPALITY's billing address to the newspaper publishing the effective and rollback tax rates. 4. COUNTY agrees, upon request, to offer guidance and the necessary forms for posting notices of required hearing and quarter-page notices as required by Sections 26.05 and 26.06 of V.T.C.A. Tax Code, if MUNICIPALITY requests such 7 days in advance of the intended publication date. Should MUNICIPALITY vote to increase its tax rate above the rollback tax rate the required publication of notices shall be the responsibility of MUNICIPALITY. 5. COUNTY agrees to develop and maintain written policies and procedures of its operation. COUNTY further agrees to make available full information about the operation of the County Tax Office to MUNICIPALITY, and to promptly furnish written reports to keep MUNICIPALITY informed of all financial information affecting it. 6. MUNICIPALITY agrees to promptly deliver to COUNTY all records that it has accumulated and developed in the assessment and collection of taxes, and to cooperate in furnishing or locating any other information and records needed by COUNTY to perform its duties under the terms and conditions of this Agreement. 7. COUNTY agrees to allow an audit of the tax records of MUNICIPALITY in COUNTY'S possession during normal working hours with at least Page 3 of 11 48 hours advance, written notice to COUNTY. The expense of any and all such audits shall be paid by MUNICIPALITY. A copy of any and all such audits shall be furnished to COUNTY. 8. If required by MUNICIPALITY, COUNTY agrees to obtain a surety bond for the County Tax Assessor/Collector. Such bond will be conditioned upon the faithful performance of the Tax Assessor/Collector's lawful duties, will be made payable to MUNICIPALITY and in an amount determined by the governing body of MUNICIPALITY. The premium for any such bond shall be borne solely by MUNICIPALITY. 9. COUNTY agrees that it will place at least quarter-page advertisements in newspapers serving Denton County in January, 2011, as a reminder that delinquent tax penalties will apply to all assessed taxes which are not paid by January 31, 2011. The advertisements will be printed in each paper between January 5th and January 251h. 10. COUNTY agrees that it will post to a secure website collection reports for MUNICIPALITY listing current taxes, delinquent taxes, penalties and interest on a daily basis between October 1, 2010 and March 31, 2011 and on a weekly basis between April 1, 2011 and September 30, 2011. County will provide monthly Maintenance and Operation (hereinafter referred to as "MO"), and Interest and Sinking (hereinafter referred to as "IS") collection reports; provide monthly recap reports; and provide monthly attorney fee collection reports. 11. MUNICIPALITY retains its right to select its own delinquent tax collection attorney and COUNTY agrees to reasonably cooperate with the attorney selected by MUNICIPALITY in the collection of delinquent taxes and related activities. Page 4 of 11 12. MUNICIPALITY will provide COUNTY with a copy of their current tax collection attorney contract on or before each February 1st. Also MUNICIPALITY will provide COUNTY with notice of any change in collection attorney on or before the effective date of the new collection attorney contract. III. COUNTY hereby designates the Denton County Tax Assessor/ Collector to act on behalf of the County Tax Office and to serve as Liaison for COUNTY with MUNICIPALITY. The County Tax Assessor/Collector, and/or his/her designee, shall ensure the performance of all duties and obligations of COUNTY; shall devote sufficient time and attention to the execution of said duties on behalf of COUNTY in full compliance with the terms and conditions of this Agreement; and shall provide immediate and direct supervision of the County Tax Office employees, agents, contractors, subcontractors, and/or laborers,. if any, in the furtherance of the purposes, terms and conditions of this Agreement for the mutual benefit of COUNTY and MUNICIPALITY. IV. COUNTY accepts responsibility for the acts, negligence, and/or omissions related to property tax service of all COUNTY employees and agents, sub-contractors and /or contract laborers, and for those actions of other persons doing work under a contract or agreement with COUNTY to the extent allowed by law. V. MUNICIPALITY accepts responsibility for the acts, negligence, and/or omissions of all MUNICIPALITY employees and agents, sub-contractors and/or Page 5 of 11 contract laborers, and for those of all other persons doing work under a contract or agreement with MUNICIPALITY to the extent allowed by law. VI. MUNICIPALITY understands and agrees that MUNICIPALITY, its employees, servants, agents, and representatives shall at no time represent themselves to be employees, servants, agents, and/or representatives of COUNTY. COUNTY understands and agrees that COUNTY, its employees, servants, agents, and representatives shall at no time represent themselves to be employees, servants, agents, and/or representatives of MUNICIPALITY. VII. For the services rendered during the 2010 tax year, MUNICIPALITY agrees to pay COUNTY for the receipting, bookkeeping, issuing, and mailing of tax statements as follows: 1. The current tax statements will be mailed on or about October 20th or as soon thereafter as practical. The.fee for this service will be a rate not to exceed Seventy- four Cents ($.74) per statement. If MUNICIPALITY does not adopt a tax rate before September 29, 2010, the tax rate for MUNICIPALITY will be set at the lower of the effective tax rate calculated for that year or the tax rate adopted by MUNICIPALITY for the preceding tax year. Before the fifth day after establishment of a tax rate under this provision, MUNICIPALITY must ratify the applicable tax rate in the manner required by Article 26.05(b) of the Texas Tax Code. 2. COUNTY will mail an additional notice during the month of March following the initial mailing provided that MUNICIPALITY has requested such a notice Page 6 of 11 on or before February 28th. The fee for this service will be a rate not to exceed Seventy- four Cents ($.74) per statement. 3. At least 30 days, but no more than 60 days, prior to April 1st, and following the initial mailing, COUNTY shall mail a delinquent tax statement meeting the requirements of Section 33.11 of the Texas Property Tax Code to the owner of each parcel. The fee for this service will be a rate not to exceed Seventy-four Cents ($.74) per statement 4. At least 30 days, but no more than 60 days, prior to July 1 st, and following the initial mailing, COUNTY will mail a delinquent tax statement meeting the requirements of Section 33.07 of the Texas Property Tax Code will be mailed. The fee for this service will be a rate not to exceed Seventy-four Cents ($.74) per statement. 6. In event of a successful rollback election which takes place after tax bills for MUNICIPALITY have been mailed, MUNICIPALITY agrees to pay COUNTY a programming charge of $5,000.00. COUNTY will mail corrected statements to the owner of each parcel. COUNTY will charge a fee for this service will be a rate not to exceed Seventy-four Cents ($.74) per statement. When a refund is required per Property Tax Code Section 26.07 (g), COUNTY will charge a $.25 processing fee per check, in addition to the corrected statement mailing costs. Issuance of refunds, in the event of a successful rollback election, will be the responsibility of the COUNTY. MUNICIPALITY will be billed for the refunds, postage and processing fees. 7. MUNICIPALITY understands and agrees that COUNTY will bill MUNICIPALITY following each mailing for which charges are permitted. Payment is due upon receipt of the statement. If MUNICIPALITY fails to pay COUNTY for Page 7 of 11 mailing fees by the 61St day after billing, COUNTY will withhold the billed amount from collections to satisfy the debt by authority of Section 6.27 of the Texas Property Tax Code. 8. MUNICIPALITY further understands and agrees that COUNTY (at its sole discretion) may increase or decrease the amounts charged to MUNICIPALITY for any renewal year of this Agreement, provided that COUNTY gives written notice to MUNICIPALITY sixty (60) days prior to the expiration date of the initial term of the Agreement. VIII. COUNTY agrees to remit all taxes, penalties, and interest collected on MUNICIPALITY's behalf and to deposit such funds into the MUNICIPALITY's depositories as designated: 1. For deposits of tax, penalties, and interest, payment shall be by wire transfer or by check sent by mail to MUNICIPALITY's depository accounts only, and segregated into the appropriate MO and IS accounts. 2. If MUNICIPALITY uses the same depository as COUNTY, the deposits of tax, penalty and interest shall be by deposit transfer. 3. In anticipation of renewal of this Agreement, COUNTY further agrees that from October 1, 2010 through March 31, 2011, deposits will be made daily and from April 1, 2011, through September 30, 2011, deposits will be made weekly. For end of month reporting, there will be a deposit made at the end of each month. It is expressly understood, however, that this obligation of COUNTY shall not survive termination of Page 8 of I1 this Agreement, whether by termination by either party or by failure of the parties to renew this Agreement. IX. In the event of termination, the withdrawing party shall be obligated to make such payments as are required by this Agreement through the balance of the tax year in which notice is given. COUNTY shall be obligated to provide services pursuant to this Agreement, during such period. X. This Agreement represents the entire agreement between MUNICIPALITY and COUNTY and supersedes all prior negotiations, representations, and/or agreements, either written or oral. This Agreement may be amended only by written instrument signed by the governing bodies of both MUNICIPALITY and COUNTY or those authorized to sign on behalf of those governing bodies. XI. Any and all written notices required to be given under this Agreement shall be delivered or mailed to the listed addresses: COUNTY: County Judge of Denton County 110 West Hickory Denton, Texas 76201 Telephone 940-349-2820 MUNICIPALITY: The City/Town of Denton 215 E McKinney Denton, Texas 76021 Telephone: 940-349-8224 Contact: Bryan Langley Page 9 of 11 XII. MUNICIPALITY hereby designates to act on behalf of MUNICIPALITY, and to serve as Liaison for MUNICIPALITY to ensure the performance of all duties and obligations of MUNICIPALITY as stated in this Agreement. MUNICIPALITY's designee shall devote sufficient time and attention to the execution of said duties on behalf of MUNICIPALITY in full compliance with the terms and conditions of this Agreement; shall provide immediate and direct supervision of the MUNICIPALITY employees, agents, contractors, subcontractors, and/or laborers, if any, in the furtherance of the purposes, terms and conditions of this Agreement for the mutual benefit of MUNICIPALITY and COUNTY. XIII. In the event that any portion of this Agreement shall be found to be contrary to law, it is the intent of the parties that the remaining portions shall remain valid and in full force and effect to the extent possible. XIV. The undersigned officers and/or agents of the parties are the properly authorized officials and have the necessary authority to execute this agreement on behalf of the parties. Each party hereby certifies to the other that any resolutions necessary for this Agreement have been duly passed and are now in full force and effect. Page 10 of 11 Executed in duplicate originals this, day of COUNTY Denton County 110 West Hickory Denton, Texas 75201 BY: Honorable Mary Horn Denton County Judge ATTEST: BY: Cynthia Mitchell Denton County Clerk APPROVED FORM AND CONTENT: Steve Mossman Denton County Tax Assessor/Collector MUNICIPALITY City/Town of Denton 215 E McKinney Street Denton, Texas 76201 2010. BY: Name: Title: ATTEST: BY: Name Title APPROVED AS TO FORM: Kim Gilles Denton County Assistant District Attorney APPROVED AS TO FORM: CITY ATTORNEY CITY OF DENTON, "TEXAS BY: Page 11 of 11 AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Transportation Operations ACM: Howard Martin 4A,,-,- SUBJECT Consider adoption of an ordinance approving an assignment of a leasehold interest in an airport lease agreement at Denton Municipal Airport from Robby Ritchey to Alan Ritchey, Inc. located at 4849 Spartan, Denton, Texas at the Denton Municipal Airport and providing an effective date. The Airport Advisory Board recommends approval (7-0). BACKGROUND Attached is a Lease Assignment Agreement to authorize Robby Ritchey to assign the lease of property to Alan Ritchey, Inc. The assignment requires Alan Ritchey, Inc. to assume liability for performance under existing terms and conditions of the Robby Ritchey Lease, to pay a $500 transfer fee and administrative cost experienced by the City in the processing of this assignment. The lease was originally assigned to Alan Ritchey, Inc. and transferred to Robby Ritchey on October 6, 1998 by Resolution R98-054. FISCAL INFORMATION A $500 transfer fee will be required and an additional administrative fee for reasonable attorney fees and staff time will also be due. The lease requires an adjustment to the lease every year based on the Department of Labor Consumer Price Index (CPI) for the Dallas-Fort Worth Area. EXHIBITS 1. Ordinance with lease agreement 2. Airport Advisory Minutes Respectfully submitted: Quentin Hix Airport Manager ORDINANCE NO. AN ORDINANCE APPROVING AN ASSIGNMENT OF A LEASEHOLD INTEREST IN AN AIRPORT LEASE AGREEMENT AT DENTON MUNICIPAL AIRPORT FROM ROBBY RITCHEY TO ALAN RITCHEY, INC. LOCATED AT 4849 SPARTAN, DENTON, TEXAS AT THE DENTON MUNICIPAL AIRPORT AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Robby Ritchey has requested that the Airport Lease Agreement at 4849 Spartan, dated May 15, 1998 be assigned to Alan Ritchey, Inc.; and WHEREAS, the Airport Board has approved the Assignment and Lease Amendment; and WHEREAS, the City Council deems it in the public interest to approve this Assignment; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee is hereby authorized to execute an Assignment of a leasehold interest in an Airport Lease Agreement, at the Denton Municipal Airport from Robby Ritchey to Alan Ritchey, Inc. attached as Exhibit A and made a part of this Ordinance for all purposes, to evidence the City's consent to the Assignment. SECTION 2. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: LEASE ASSIGNMENT OF COMMERCIAL OPERATORS LEASE AT DENTON MUNICIPAL AIRPORT DATE: ASSIGNOR: Robby Ritchey ASSIGNEE: Alan Ritchey, Inc. LEASE: Date: May 15, 1998 Landlord: City of Denton, Texas Tenant: Robby Ritchey Assignor assigns to Assignee Tenant's interest in the lease. A. Assignee Agrees To: I. Assume Tenant's Obligations under the lease. 2. Accept the premises in their present "as is" condition. 3. Complete all obligations of purchase from Assignor prior to this assignment becoming effective. B. Landlord consents to this assignment. Landlord agrees to notify Assignor within 30 days of any Assignee default. C. Assignor agrees as a condition of Landlord's consent to this Assignment that: I. Assignor will remain liable on the lease should Assignee default on the lease. 2. Assignor will pay or will have the Assignee pay the Landlord a five hundred dollar ($500.00) transfer fee. 3. Assignor will pay or will have the Assignee pay all the Landlord's administrative costs of handling and processing this Assignment, including without limitation, all Landlord's reasonable attorney fees and Landlord's staff time associated with this assignment. PREVIOUS ASSIGNMENTS: Lease was originally assigned to Alan Ritchey, Inc. and transferred to Robby Ritchey on October 6, 1998 by Resolution R98-054. Page 2 of 3 For Robby Ritchey, Assignor by Ritchey For Alan Ritchey, Inc., Assignee City of Denton, Landlord George C. Campbell, City Manager Attest: Jennifer Waiters, City Secretary By: Approved as to Legal Form: Anita Burgess, City Attorney By; STATE OF TEXAS COUNTY OF DENTON 44 This instrument was acknowledged before me on the day of CI~x,G , 24 I D, by Robby Ritchey, airport lessee. [Seal] A &A-e- J-In Notary Public, Stat of Texas My Commission Expires (or Notary Stamp) IDIANE HOGAN NoState of Texas $ion Expires 2oia Page 3 of 3 STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on the F& day of 20 1, by Alan Ritchey, Inc. [Seal] ( a-f- Notary Public, State of Texas My Commission Expires 14 DIANE HOGAN * Notary Public, State of Texas My CommlSSion Expires 3.20.2014 STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on the day of , 20by George C. Campbell on behalf of the City of Denton, Texas, a municipal corporation. [Seal] Notary Public, State of Texas My Commission Expires (or Notary Stamp) DRAFT MINUTES AIRPORT ADVISORY BOARD JUNE 9, 2010 After determining that a quorum was present, the Airport Advisory Board of the City of Denton, Texas convened in a Regular Meeting on June 9, 2010 at 5:30 p.m. in the Airport Terminal Building, Meeting Room at 5000 Airport Road, Denton, Texas, at which the following items were considered: BOARD MEMBERS PRESENT: Chairman, Mr. Brown, Vice Chairman, Mr. Brewer, Mr. Clark, Dr. Smith, Mr. Pugh, Mr. Schofield, and Mr. Fykes. BOARD MEMBERS ABSENT: None STAFF MEMBERS PRESENT: Quentin Hix, Airport Manager, Julie Mullins, Administrative Assistant, Andrea Sumner, Operations Coordinator. PUBLIC PRESENT: Mark Taylor, US Aviation Group, Rick Woolfolk, Damon Ward, Business Air Center and Jim Stodold. ITEMS FOR INDIVIDUAL CONSIDERATION VII. Receive a report, hold a discussion and take appropriate action regarding an ordinance approving an assignment of a leasehold interest in an airport lease agreement at Denton Municipal Airport from Robby Ritchey to Alan Ritchey, Inc. located at 4849 Spartan, Denton, Texas at the Denton Municipal Airport and providing an effective date. Dr. Smith made a motion to approve leases IV, V, VI, VII transfer lease agreement. Mr. Fykes seconded the motion. Motion carried 7-0 AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Transportation Operations ACM: Howard Martin, 349-8232 _twn. SUBJECT Consider approval of a resolution of the City Council of the City of Denton, Texas, appointing a primary and alternate member as an official voting representative to the Regional Transportation Council (RTC) of the North Central Texas Council of Governments; and providing and effective date. BACKGROUND In 2008 the North Central Texas Council of Governments (NCTCOG) RTC approved a revision to its Bylaws and Operating Procedures to reflect changes in membership based on the NCTCOG's most recent population and employment figures. The revision included a provision to cluster the City of Denton with several Denton County municipalities with populations greater than 5,000 to meet a population threshold of approximately 208,000 per each RTC seat. The Cities of Denton, Corinth, Highland Village, Lake Dallas, Little Elm and Sanger share a seat on the RTC. The Bylaws and Operating Procedures state that the person representing a group of several cities (cluster cities) shall be selected by the mayors using a weighted vote of the maximum population or employment of the cities represented. This population and employment formula result in the City of Denton as the weighted majority entity for RTC representation. The representatives selected shall serve a two-year term beginning in June of even-numbered years and shall currently serve on the governing body they represent. The 2008 RTC Bylaws revision allows for each seat on the RTC to have an alternate member in addition to the primary member. The alternate member will have voting capability and can represent the group should the primary member not be able to attend a particular meeting. Mayor Pro-Tem Kamp has served as the City of Denton representative on the RTC for more than six years and has been recommended by the Mobility Committee to continue serving on behalf of the City of Denton and the other Denton County cluster municipalities for the 2010 to 2012 term. The Mobility Committee also recommended Mayor Scott McDearmont, Highland Village, replace Mayor Burroughs as the Alternate. PRIOR ACTION/REVIEW: Mayor Burroughs requested letters of support for Mayor Pro-Tem Kamp as the Primary in May 2010 from the Mayors of Corinth, Highland Village, Lake Dallas, Little Elm and Sanger. This letter also requested input on the alternate. The Town of Highland Village requested Mayor McDearmont be considered as the Alternate. The Mobility Committee recommended staff proceed in submitting documentation to NCTCOG indicating Mayor Pro-Tem will serve as the Primary RTC representative and Mayor McDearmont serve as the Alternate for Denton and the cluster municipalities. SCHEDULE RTC representatives serve a two-year term beginning in June of even numbered years. The representatives designated at this time will serve until the end of May 2012. EXHIBITS 1. Draft Resolution 2. Draft Mobility Committee Minutes, June 22, 2010. Respectfully submitted: Mark Nelson, Transportation Director salegallour docurnentslresolutionsAO\nctcog regional trms council. doc RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, APPOINTING A PRIMARY AND AN ALTERNATE MEMBER AS AN OFFICIAL VOTING REPRESENTATIVE TO THE REGIONAL TRANSPORTATION COUNCIL (RTC) OF THE NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS; AND PROVIDING AN EFFECTIVE DATE. - WHEREAS, the Regional Transportation Council (RTC) is the independent transportation policy body of the Metropolitan Planning Organization and is comprised of 43 members; 36 local elected or appointed officials representing cities and counties, and several transportation provider representatives; and WHEREAS, the RTC is responsible for overseeing the metropolitan planning process including primary activities such as; providing guidance regarding the development of multimodal transportation plans and programs, programming federal and State funds for the implementation of transportation improvements, selecting specific federally funded projects and programs, assuring the coordination of services among transportation providers, and ensuring compliance with federal and State laws and regulations pertaining to metropolitan transportation and air quality planning; and WHEREAS, the City Council deems it be in the public interest to reappoint Pete Kamp as the primary member to the RTC and appoint Scott McDearmont, Mayor, Highland Village as the City's alternate member to the RTC.; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The findings and recitations contained in the preamble of this Resolution are incorporated herein by reference. SECTION 2. Pete Kamp is hereby reappointed as the primary member of the City of Denton, Texas to the RTC and Scott McDearmont is hereby appointed as the alternate member of the City of Denton, Texas, to the RTC. Pete Kamp and Scott McDearmont are qualified to serve on the RTC as having professional experience in the field of transportation, business, government, engineering, or law. SECTION 3. The City Manager is hereby authorized to send a certified copy of this Resolution to appropriate officials of the RTC. SECTION 4. This Resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2010. MARK A. BURROUGHS, MAYOR salegallour documentslresolutions1101nctcog regional trans council.doc ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: ;Kz Page 2 of 2 I CITY COUNCIL MOBILITY COMMITTEE AGENDA ITEM #1 2 3 DRAFT MINUTES 4 City Council Mobility Committee 5 Tuesday, June 22, 2010 6 7 After determining that a quorum of the Mobility Committee of the Denton City Council was s present, the Chair of the Committee on the Mobility thereafter convened into a meeting on 9 Tuesday, June 22, 2010 at 2:17 p.m. in the City Council work session room, 215 E. McKinney 10 Street, Denton, Texas. 11 12 Present: Chair Pete Kamp and Mayor Mark Burroughs 13 14 Absent: Council Member Dalton Gregory, excused 15 16 Also Present: Howard Martin, ACM Utilities; Mark Nelson, Transportation Director; Ann 17 Forsythe, Boards & Committees Coordinator; Kim Mankin, Administrative Assistant; Kevin is Feldt, NCTCOG; Evan Stair, Amtrak Heartland Flyer; Teri Wallace, Mayor of Krim; and John 19 Keller, citizen from Krim. 20 21 OPEN MEETING 22 23 4) Receive a report, hold a discussion, and take appropriate action on Regional Transportation 24 Council actions including the recent election of officers to the North Central Texas Council 25 of Governments' Regional Transportation Authority. 26 27 Chair Kamp stated that this item is somewhat open ended and that most of the information is 29 provided in the backup and that she did not really have anything else to add and were there any 29 questions. 30 31 Nelson stated that this item is in regard to a meeting between Chair Kamp and the Mayor with 32 respect to a request for appointment of an alternate. Chair Kamp stated that is correct and that 33 the appointment of that alternate does need to be reflected in the minutes. Chair Kamp also 34 stated that the alternate has voting rights and the recommendation for that appointment will be 35 Scott McDearmont, Mayor of Highland Village. Kamp stated that she has already spoken with 36 McDearmont and that he is excited about the opportunity. 37 39 The Mobility Committee recommended staff proceed in submitting documentation to NCTCOG 39 indicating Chair Kamp will serve as the Primary RTC representative for Denton and Mayor 40 McDearmont as the Alternate. 41 42 Mayor Burroughs asked if a second alternate should be named. Kamp replied no and added that 43 it is a two year appointment. 44 45 The meeting was adjourned by consensus at 3:29 p.m. This page left blank intentionally . AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Solid Waste Department lklll- ACM: Howard Martin, 349-8232 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas authorizing the approval of a first amendment to professional services agreement between Chiang, Patel, and Yerby, Inc. (CP&Y) and the City of Denton, Texas, expanding the scope of services previously defined in the professional services agreement, which amendment allows CP&Y to provide engineering consulting services related to the landfill expansion to include, 1) hydrologic and hydraulic evaluations, 2) the preliminary sizing and location of a 4.5 million gallon flow equalization basin, and 3) analysis of the floodplain/floodway impacts of extending a landfill retaining wall and berm along the creek side of the flow equalization basin downstream to the headworks of the Wastewater Treatment Plant for an additional amount not-to-exceed $41,050; providing for the expenditure of funds therefor; and providing an effective date ($41,050 further professional engineering services, totaling $104,050 when aggregated with the previous professional services agreement). The Public Utility Board recommends approval (7-0). BACKGROUND During the Solid Waste proposed FY 2010 budget presentation discussion on June 8, 2009, the staff discussed the need for a landfill floodplain reclamation study to be performed on a portion of the Pecan Creek 100-year floodplain. The floodplain study is associated with the landfill permit amendment, and must be completed prior to the development of the permit amendment to the TCEQ. The floodplain reclamation study was recommended by the PUB and approved by Council in August 2009. Further engineering work and study is needed at this time in order to obtain more specific and detailed information necessary to coordinate this project with future development plans for the wastewater utility. CP&Y will provide several hydrologic and hydraulic modeling analyses along the creek, provide design of a WWTP equalization basin, provide creek retaining wall and berm designs, and they will update the mapping of the creek alignment perimeter area of the study area. A more detailed explanation of the work to be performed is included in the scope of services, Exhibit 1. OPTIONS The Public Utilities Board may recommend the professional services requested within this agenda be completed by CP&Y, or they may recommend they be completed by another firm. RECOMMENDATION City staff recommends accepting the professional services proposal submitted by CP&Y to provide professional services to the City of Denton's Solid Waste Department for this flood plain study. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The PUB recommended approval of the agreement amendment of $41,050 at their meeting of June 28, 2010 (7-0). The original professional services agreement of $63,000 was recommended by the PUB and approved by Council during August 2009. FISCAL INFORMATION Professional engineering services are charged based on the level of professional services requested by the city staff. The amended professional services expenditures are projected to be $41,050 for completion of the tasks as outlined within the attached scope of services. With this amendment, the floodplain reclamation study budget would increase from $63,000 to $104,050. Payment of these services will be funded from Solid Waste job cost account number 660049592.1360.30100. EXHIBITS 1. Ordinance 2. CP&Y First Amendment to Professional Services Agreement 3. CP&Y Professional Services Agreement - August 17, 2009 4. PUB Minutes Respectfully submitted, A. Vance Kemler General Manager, Solid Waste Prepared by, 4;~~ S. Lebsack Administration and Development Manager ORDINANCE NO. 2010- AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE APPROVAL OF A FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT BETWEEN CHAING, PATEL AND YERBY, INC. ("CP&Y) AND THE CITY OF DENTON, TEXAS, EXPANDING THE SCOPE OF SERVICES PREVIOUSLY DEFINED IN THE PROFESSIONAL SERVICES AGREEMENT, WHICH AMENDMENT ALLOWS CP&Y TO PROVIDE ENGINEERING CONSULTING SERVICES RELATED TO THE LANDFILL EXPANSION TO INCLUDE: (1) HYDROLOGIC AND HYDRAULIC EVALUATIONS; (2) THE PRELIMINARY SIZING AND LOCATION OF A 4.5 MILLION GALLON FLOW EQUALIZATION BASIN; AND (3) ANALYSIS OF THE FLOODPLAINTLOODWAY IMPACTS OF EXTENDING A LANDFILL RETAINING WALL AND BERM ALONG THE CREEK SIDE OF THE FLOW EQUALIZATION BASIN DOWNSTREAM TO THE HEADWORKS OF THE WASTEWATER TREATMENT PLANT FOR AN ADDITIONAL AMOUNT NOT-TO- EXCEED $41,050; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE ($41,050 FURTHER PROFESSIONAL ENGINEERING SERVICES, TOTALING $104,050 WHEN AGGREGATED WITH THE PREVIOUS PROFESSIONAL SERVICES AGREEMENT). WHEREAS, the City Council deems that it is in the public interest to continue to engage the engineering firm of Chaing, Patel & Yerby, Inc. (CP&Y), Dallas, Texas to provide further professional engineering consulting services for the City of Denton, Texas that are related to the Denton Landfill expansion; and WHEREAS, on August 17, 2009 the City Manager considered and approved a "Professional Services Agreement for Architect or Engineer" (hereafter the "Agreement") by and between the City and CP&Y, acting within his delegated authority, in the amount of not- to-exceed $63,000; and WHEREAS, being satisfied with CP&Y's performance under the Agreement, staff requested that CP&Y present it with a cost estimate of their services required to complete the tasks needed by the Solid Waste Department regarding activities dealing with the expansion of the Denton Landfill; CP&Y has presented the City with its cost estimate that the requested services will require that the previous Agreement be amended, and increased by the amount of $41,050; and WHEREAS, City staff has reported to the City Council that there is a substantial need for the above-referenced professional engineering services, and that limited City staff cannot adequately perform the specialized services and tasks with its own personnel; and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act," generally provides that a City may not select a provider of professional services on the basis of competitive bids, but must select the provider 1 on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1: The preamble to this ordinance is incorporated herewith by reference as a part of this ordinance. SECTION 2: The City Manager is hereby authorized by the City Council to execute a "First Amendment to Professional Services Agreement" (the "First Amendment") with Chaing, Patel & Yerby, Inc., Dallas, Texas, for professional engineering consulting services related to the expansion of the Denton Landfill, for an additional fee of not-to-exceed $41,050 (aggregating a not-to-exceed amount of $104,050 when added on to the earlier Agreement); in substantially the form of the "First Amendment" that is attached hereto as Exhibit "A" and incorporated herewith by reference. SECTION 3: The award of this Agreement by the City is on the basis of the demonstrated competence, knowledge, and qualifications of CP&Y and the demonstrated ability of CP&Y to perform the services needed by the City for a fair and reasonable price. SECTION 4: The expenditure of funds as provided in the attached First Amendment is hereby authorized. SECTION 5: This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY } 1' ~ j irr { 4 ~ By: 2 THE STATE OF TEXAS § COUNTY OF DENTON § FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT WHEREAS, a "Professional Services Agreement for Architect or Engineer" (hereafter the "Agreement") was entered into on the 17th day of August, 2009, by and between CHAING, PATEL & YERBY, INC. ("CONSULTANT" or "DESIGN PROFESSIONAL"), a Corporation, acting by and through its duly empowered officers and representatives; with its corporate offices at 1820 Regal Row, Suite 200, Dallas, Texas 75235; and the CITY OF DENTON, TEXAS, a Texas municipal corporation, acting by and through its duly authorized and empowered City Manager (hereafter "OWNER"); said Agreement having been approved by the City Manager, within his delegated authority, and which Agreement provided for certain necessary licensed professional engineering services, with expenditure authority not- to-exceed $63,000; and both CONSULTANT and the OWNER have each resolved and agreed that the Agreement should be continued and amended as to certain provisions, to wit: NOW, THEREFORE, in consideration of the covenants and agreements herein contained, CONSULTANT and the OWNER mutually agree to amend the Agreement by this "First Amendment to Professional Services Agreement" (hereafter the "First Amendment"), as the scope of services to be rendered by CONSULTANT to the OWNER has been increased by the sum of $41,050 in additional professional engineering fees, increasing the amount of this engagement from $63,000, the amount of the Agreement, to a total of not-to-exceed $104,050; this amendment provides for an expansion of the professional services to be rendered by CONSULTANT, as set forth in that certain "Denton Landfill Floodplain Reclamation" proposal addressed from CONSULTANT to David Dugger, Landfill Manager, on May 5, 2010, which is attached hereto as Exhibit "A", and which is incorporated by reference herein, to wit: SECTION 1. EMPLOYMENT OF DESIGN PROFESSIONAL In addition to the original scope of services attached to the Agreement executed on August 17, 2009, there is an additional scope of services letter that is attached hereto as Exhibit "A" which is incorporated by reference. The CONSULTANT shall perform those additional professional engineering and design services as contained in Exhibit "A" attached hereto. To the extent that any of the conditions in said original Agreement have changed, then the conditions on Exhibit "A" shall be applicable. All other provisions of Section I shall remain intact and in full force and effect. SECTION 2. BASIC SERVICES For Basic Services the total compensation shall be an additional $41,050, totaling $104,050 for the professional engineering and design services. SECTION 3. ENTIRE AGREEMENT The First Amendment includes the executed Professional Services Agreement, executed August 17, 2009 as well as this First Amended Agreement. It further includes the City of Denton General Conditions to the original Agreement for Architectural or Engineering Services. It further includes the Insurance Requirements that are attached to the original Agreement for Architectural or Engineering Services. SECTION 4. AMENDED AGREEMENT Save and except as amended hereby, all of the remaining clauses, sentences, paragraphs, sections and subsections of the Professional Services Agreement for Architect or Engineer, executed on the 17th day of August, 2009, shall remain in full force and effect. This First Amendment shall be executed in four originals. SIGNED AND DATED by the duly-authorized representatives and officers of the parties hereto effective on the day of , 2010. "OWNER" $y: ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: CITY OF DENTON, TEXAS A Texas Municipal Corporation GEORGE C. CAMPBELL CITY MANAGER 2 "CONSULTANT" CHAING, PATEL & YERBY, INC. A Corporation By:, William R. Hindman, P.E. Principal ATTEST: By: Partners for a Better Quality of Life C P& YJ May 5, 2010 Mr. David Dugger Landfill Manager Solid Waste Department - Denton Municipal Utilities 1527 S. Mayhill Road Denton, Texas 76208 RE: Denton Landfill Floodplain Reclamation Additional Services for Pecan Creek and North Zone A Tributary City of Denton, Texas Dear Mr. Dugger: 09ENVWRS.00.25 CP&Y, Inc. is pleased to provide you with this proposal for additional engineering services for the above- referenced project. Through discussions with your office and other departments within the City of Denton, a need has been identified to increase the scope of the analyses for the landfill expansion to include, 1) hydrologic and hydraulic evaluation of a tributary (North Tributary) that currently bisects the proposed landfill expansion site and is designated as a Shaded Zone X area on the Flood Insurance Rate Map (FIRM), 2) the proposed preliminary sizing and location of a 4.5 million gallon Flow Equalization Basin (FEB) to be utilized by the adjacent wastewater treatment plant (WWTP), and 3) analysis of the floodplain/floodway impacts of extending a landfill retaining wall and/berm along the creek side of the FEB to high ground just downstream of the headworks of the WWTP. Based on our understanding of the additional project scope, CP&Y proposes the following work items: BASIC SERVICES (Additional): 1) Data Acquisition and Review - CP&Y will request and review the current hydrologic and hydraulic modeling data from the City of Denton for the portion of the North Tributary that extends upstream of Mayhill Road in order to incorporate it into the analyses, if applicable. 2) Flow Equalization Basin - CP&Y will prepare preliminary design plans for a proposed 4.5 million gallon Flow Equalization Basin that will serve the WWTP. The proposed location will be in the low area near the current plant entrance road. CP&Y will coordinate the location, size, and shape of the FEB with Landfill and WWTP staff. 3) Retaining Wall and Berm Extension - CP&Y will prepare preliminary design plans for the retaining wall and berm extension that will be necessary to protect the FEB and the WWTP head works from inundation by the 100-year flood on Pecan Creek. It is anticipated that the wall will transition to a berm in the vicinity of the head works in order to avoid conflicts with large sewer mains. 4) Proposed North Tributary Realignment - CP&Y will update the proposed alignment of the North Tributary along the west and north perimeter of the proposed landfill expansion. This will include the development of preliminary design plans that will be required for the Conditional Letter of Map Revision (CLOMR) submittal. 1820 Regal Row, Suite 200 Dallas, Texas 75235 214.638.0500 - 214.638.3723 fax www.cpyi.com J Mr. David Dugger Page 2 of 5 May 5, 2010 Denton Solid Waste Landfill Floodplain Reclamation - Additional Services 5) Pecan Creek Hydraulic Analysis - a. Hydraulic Analysis - CP&Y will expand the hydraulic analysis of Pecan Creek to include the FEB and the wall and/or berm that is to extend to just downstream of the WWTP headworks and then tie into high ground. This analysis will include additional encroachment into the 100 year floodplain and may include minor encroachment into, and subsequent adjustment of, the floodway. CP&Y will adjust the proposed condition scenario to provide additional mitigation to offset potential water surface elevation increases and loss of valley storage. CP&Y anticipates that it will be necessary to expand the proposed bypass swale that is currently being developed for a portion of Pecan Creek through the project reach in order to provide the required mitigation. Additional excavation, beyond that required for the bypass swale, may be required. 6) Zone X, North Tributary Analysis - a. Hydrologic Analysis - CP&Y will delineate the drainage area and will calculate the existing and future fully-developed watershed 100-year discharges for the un-named Zone X tributary (North Tributary) using the unit hydrograph method based on existing and future land use data and soils data obtained from the City of Denton. b. Hydraulic Analysis (Existing Conditions) - CP&Y will create a hydraulic model of the North Tributary using current topographic mapping data (1-foot contours) provided by the Solid Waste Department and will include the previous hydraulic modeling that has been done upstream of the site (Mayhill Road and upstream) for consistency and to evaluate impacts. The resulting floodplain will be delineated and Base Flood Elevations (BFE's) will be determined for the portion of the North Tributary that passes through the proposed landfill expansion site. c. Hydraulic Analysis (Proposed Conditions) - CP&Y will create a hydraulic model of the proposed North Tributary based on the alignment developed in Task 4. This may be an iterative process as valley storage and channelization criteria will be evaluated and adjustments will be made to the realignment plan, if necessary. The resulting BFE's will be determined and the proposed floodplain will be delineated for the North Tributary. 7) FEMA Submittal - It is anticipated that a CLOMR will be required based on City of Denton floodplain criteria. CP&Y will include the analyses and results of the additional services in the CLOMR submittal as described in the initial contract. Partners for a Better Quality of life '-f~J Mr. David Dugger Page 3 of 5 May 5, 2010 Denton Solid Waste Landfill Floodplain Reclamation - Additional Services ESTIMATE OF PROBABLE COST CP&Y will provide the proposed services on a time-and-materials basis in accordance with our attached Standard Rate Schedule. For your budgeting purposes, the estimated labor cost for CP&Y's scope of services is shown below according to the outline used in the Basic Services description above: 1) Data Acquisition $ 500 2) Flow Equalization Basin $ 4,200 3) Retaining Wall & Berm Extension $ 5,700 4) Proposed North Tributary Realignment $ 7,150 5) Pecan Creek Hydraulic Analysis (Additional) $ 4,500 6) Zone X/North Tributary Analysis $16,000 7) FEMA Submittal (CLOMR-Additional) $ 3,000 Estimate of Probable Cost Total $41,050 The cost estimates listed above are based on the assumptions and conditions contained herein. Any deviations in the project from these specified assumptions and conditions could result in additional costs. The actual amount billed will depend on the actual labor time and non-labor expenses required. ASSUMPTIONS AND CONDITIONS The scope of services and the cost estimate provided herein are based on several assumptions and conditions as listed in the Basic Services and as follows: 1. The scope of services and cost estimate do not include public meetings or presentations. 2. FEMA, the City of Denton, and/or other entities will provide requested data (if necessary) in a timely manner. This scope of services does not include CP&Y having to correct any deficiencies found in any data provided by others. 3. This proposal assumes that FEMA will process the CLOMR for Pecan Creek, the Zone A - South Tributary and the Zone X - North Tributary in one package as a single CLOMR submittal with one fee. If FEMA, or the City, determine that the project must be broken up into separate submittals, then, upon request, CP&Y will prepare separate CLOMR documents for submittal as additional services on a time-and-materials basis. It should be noted that separate CLOMR Partners for a Better Quality of Life Mr. David Dugger Page 4 of 5 May 5, 2010 Denton Solid Waste Landfill Floodplain Reclamation -Additional Services submittals would likely result in multiple FEMA review fees. 4. CP&Y assumes that any current modeling data for the North Tributary was based on the HEC-2 computer model format. Due to the potential complexity of the hydraulic analysis and FEMA's policy of encouraging the conversion to HEC-RAS, CP&Y will use the HEC-RAS computer program for this project and will convert the existing HEC-2 model data to HEC-RAS, if necessary. 5. This scope of services does not include any detention pond sizing or analysis. 6. This scope of services is for hydrologic and hydraulic analyses and a CLOMR submittal to FEMA. CLOMR submittals are based on proposed project conditions. This scope of services does not include a LOMR submittal , as LOMR's are based on as-built conditions and it is currently unknown when the full floodplain reclamation project would be completed. Upon completion of construction within the 100-year floodplain and upon request, CP&Y will prepare a separate proposal for LOMR preparation and submittal services. 7. The cost estimate provided herein does not include any City of Denton, USACE, TCEQ, or FEMA processing, review, permit or regulatory fees. CP&Y's cost estimate for this scope of services does not include paying any fees to any agency. 8. CP&Y's scope of services does not include any analysis, delineation, determination or any regulatory support activities related to wetlands, waters of the United States, or other environmental issues. 9. As CP&Y's scope of services will be based upon designs and information provided by others, the results of CP&Y's products (e.g., water surface elevations, floodplain delineations, CLOMR submittal documents) are dependent upon such designs and information provided by others and on the assumption that the project will be completed exactly as designed and in accordance with design plans (whether preliminary or final as-built plans). Therefore, CP&Y cannot and does not accept any responsibility for the accuracy of such designs and information provided by others, or any future actions by others, or any failure to perform or negligence on the part of others, which may affect the accuracy of flood study results and information provided to regulatory authorities. With these conditions in mind, the client, agrees to indemnify, defend and hold harmless CP&Y against any and all lawsuits, claims, liabilities, causes of action, losses, damages, forfeitures, penalties, fines, costs and expenses, including, but not limited to, reasonable attorney fees and expenses, by whomever asserted, which may arise in conjunction with the client and their representatives, or any matters related thereto. If you wish for CP&Y to begin work toward the completion of the scope of services under the terms contained herein, please indicate your approval and notice-to-proceed by signing and dating in the space provided below and returning one executed copy to our office. Partners for a Better Quality of Life Mr. David Dugger Page 5 of 5 May 5, 2010 Denton Solid Waste Landfill Floodplain Reclamation - Additional Services We appreciate the opportunity to work with you on this project and will make every effort to provide responsive, quality service. Please call me at 214/589-6943 if you have any questions. Sincerely, Michael R. Perkins, P.E. Senior Engineer Attachments: Standard Rate Schedule cc: Project File CP&Y, Inc. Approval: G t ZI 9/0 Mr. William R. Hindman, P.E. Date Principal CP&Y, Inc. Approval and Notice to Proceed: Mr. David Dugger Date City of Denton Solid Waste Landfill Partners for a Better Quality of Life P&Y, Inc. WATER RESOURCES RATE SCHEDULE RATES (Effective 03/04/09) Personnel: Personnel costs for time-and-materials services are reimbursed on an hourly basis in accordance with the following rate schedule: Principal Engineer $185 - 225/hr Senior Associate Engineer $170 - 215/hr Senior Engineer $135 -180/hr Project Engineer $ 95 -155/hr Engineer-in-Training $ 55 -120/hr CADD Support/Technician $ 48 - 95/hr Clerical/Administrative Support $ 32 - 55/hr Non-Labor Expenses: Non-labor expenses include travel costs and other purchased services project costs including, but not limited to, subcontractor services, reproductions, rented and leased equipment, data costs, and computer digital file costs. Mileage costs are billed at rates dictated by the Internal Revenue Service. Invoice Terms: Invoices for all services rendered are pavable upon receipt. Invoices are submitted on a monthly basis and are normally mailed before the 10 ti, of each month. All necessary application fees, review fees, and/or processing fees required by regulatory authorities and agencies are the responsibility of the client and not included in CP&Y's budget. [Note: The above personnel rates do not apply for expert testimony services.] Client Signature: Date: PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER THIS AGREEMENT is made and entered into as of the ,-day of 2009, by and between the City of Denton, Texas, a Texas municipal corporation, with its print al office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "Owner" and Chiang, Patel & Yerby, Inc. Firm, with its corporate office at 1820 Regal Row, Suite 200, Dallas, Texas 75235 hereinafter called "Design Professional," acting herein, by and through their duly authorized representatives. In consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: SECTION 1 EMPLOYMENT OF DESIGN PROFESSIONAL The Owner hereby contracts with the Design Professional, a licensed Texas architect or engineer, as an independent contractor. The Design Professional hereby agrees to perform the services as described herein and in the Proposal, the General Conditions, and other attachments to this Agreement that are referenced in Section 3, in connection with the Project. The Project shall include, without limitation, File 4346-Landfill Floodplain Reclamation Page 1 C.1Documents and 8ettingsWpugslc3ALoca1 SettingATemporary Inte€net Files\Content.outlooktWBSPWJS614346 Chiang Patel Ye€by-Landfill Flood Reclamation.doeFloodplain Reclamation SECTION 2 COMPENSATION The Owner shall compensate the Design Professional as follows: 2.1 BASIC SERVICES 2.1.1 For Basic Services the total compensation shall be $63,000. 2.2 ADDITIONAL SERVICES 2.2.1 Compensation for Additional Services is as follows: Clerical/Administrative CARD Support/Technician Engineer in Training Project Engineer Senior Engineer Senior Associate Engineer Principal Engineer $32- 55 per hour $4B--$95 per hour $55-$120 per hour $95-$155 per hour $135- 180 per hour $170-$215 per hour $185- 225 perhour 2.2.2 Compensation for Additional Services of consultants, including additional structural, mechanical and electrical engineering services shall be based on a multiple of 1.1 times the amounts billed to the Design Professional for such additional services. 2.3 REIMBURSABLE EXPENSES Reimbursable -Expenses shall be a multiple of 1.1 times the expenses incurred by the Design Professional, the Design Professional's employees and consultants in the interest of the Project as defined in the General Conditions but not to exceed a total of $500.00 without the prior written approval of the Owner. Page 2 CADocuments and Settingslipugsley\Local SettingATemporary Internet Files\Contcnt.outlooklwBSPNvJS614346 Chiang Patel Yerby-Landfill Flood Reclannation.docFloodplain Reclamation SECTION 3 ENTIRE AGREEMENT This Agreement includes this executed agreement and the following documents all of which are attached hereto and made a part hereof by reference as if fully set forth herein: City of Denton General Conditions to Agreement for Architectural or Engineering Services. 2. The Design Professional's Proposal 3. Insurance Requirements This Agreement is signed by the parties hereto effective as of the date first above written. CITY OF DENTON BY: GEO GE C. CAMPBELL CITY MANAGER ATTEST: ]EN IFER WALTERS CITY SECRETARY BY: APPRC ED AS O LEGAL FORM: ANITA BURGESS, CITY ATTORNEY r~ - DESIGN F M BY: Firm's Officer/Representative WITNESS: BY: Page 3 CADOCuments and Setting0hindmanll-ocal Settingffemporary Internet FileslContent.outlooLM5DTiVI0714346 Chiang Patel Yerby-Landfill Flood Reclamation.docHoodplain Reclamation CITY OF DENTON GENERAL CONDITIONS TO AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES ARTICLE L ARCHUECT OR ENGINEER'S RESPONSIBILITIES 1.1 The Architect or Engineer's services consist of those services for the Project (as defined in the agreement (the "Agreement) acrd proposal (the "Proposal") to which these General Conditions are attached) performed by the Architect or Engineer (hereinafter called the "Design Professional") or Design Professional's employees and consultants as enumerated in Articles 2 and 3 of these General Conditions as modified by the Agreement and Proposal (the "Services"). 1.2 The Design Professional will perform all Services as an independent contractor to the prevailing professional standards consistent with the level ofcare and skill ordinarily exercised by members of the same profession currently practicing in the same locality under similar conditions, including reasonable, informed judgments and prompt timely actions (the "Degree of Care"). The Services shall be performed as expeditiously as is consistent with the Degree of Care necessary for the orderly progress of the Project Upon request of the Owner, the Design Professional shall submit for the Owner's approval a schedule for the performance of the Services which may be adjusted as the Project proceeds, and shall include allowances for periods of time required for the Owners review and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule and approved by the Omer shall not, except for reasonable cause, be exceeded by the Design Professional or Owner, and any adjustments to this schedule shall be. mutually acceptable to both parties. ARTICLE 2 SCOPE OF BASIC SERVICES 21 BASIC SERVICES DEFINED The Design Professional's Basic Services consist of those described in Sections 22 through 2.6 of these General Conditions and include without limitation normal structural, civil, mechanical and electrical engineering services and any other engineering services necessary to produce a complete and accurate set of Construction Documents, as described by and required in Section 2.4. The Basic Services may be modified by the Agreement. 2.2 SCHEMATIC DESIGN PHASE 2.11 The Design Professional, in consultation with the Owner, shall develop a written program for the Project to ascertain Owners needs and to establish the requirements for the Project. 2.2.2 The Design Professional shall provide a preliminary evaluation of the Owner's program, construction schedule and construction budget requirements, each in terms of the other, subject to the limitations set forth in Subsection 5.2.1. 2.23 The Design Professional shall review with the Owner alternative approaches to design and construction ofthe Project. 2.2.4 Based on the mutually agreed-upon program, schedule and construction budget requirements, the Design Professional shall prepare, for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components. The Schematic Design shall contemplate compliance with all applicable laws, statutes, ordinances, codes and regulations. 2.2.5 The Design Professional shall submit to the Owner a preliminary detailed estimate of Construction Cost based on current area, volume or other unit costs and which indicates the cost of each category of work involved in constructing the Project and establishes an elapsed time factor for the period of time from the commencement to the completion of construction. 23 DESIGN DEVELOPMENT PHASE 2.3.1 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, schedule or construction budget, the Design Professional shall prepare for approval by the Owner, Design Development Documents consisting of drawings and other documents to fix and describe the size and character of the Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate, which shall comply with all applicable laws, statutes, ordinances, codes and regulations. Notwithstanding Owners approval of the documents, Design Professional represents that the Documents and specifications will be sufficient and adequate to fulfill the purposes of the Project. 2.3.2 The Design Professional shall advise the Owner of any adjustments to the preliminary estimate of Construction Cost it a further Detailed Statement as described in Section 215. 2.4 CONSTRUCTION DOCUMENTS PHASE 2.4.1 Based on the approved Design Development Documents and any further adjustments in the scope or quality of the Project or in the construction budget authorized by the Owner, the Design Professional shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting forth in detail requirements for the construction of the Project, which shall comply with all applicable laws, statutes, ordinances, codes and regulations. 2.4.2 The Design Professional shall assist the Owner in the preparation of the necessary bidding or procurement information, bidding or procurement forms, the Conditions ofthe contract, and the form of Agreement between the Owner and contractor. 2.43 The Design Professional shall advise the Owner of any adjustments to previous preliminary estimates of Construction Cost indicated by changes in requirements or general market conditions. 2.4.4 The Design Professional shall assist the Owner in connection with the Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction. over the Project. 2.5 CONSTRUCTION CONTRACT PROCUREMENT Page 4 C:1Documents and SettingslfpugsleyUocal SettingATernporary Internet FileslContent.Outlook\WBSPNi'JS6~4346 Chiang Patel Yerby-Landfill Flood Reclamation.docPeak Flow Storage Basin 2.5.1 The Design Professional, following the Owners approval of the Construction Documents and of the latest preliminary detailed estimate of Construction Cost, shall assist the Owner in procuring a construction contract for the Project through any procurement method that is legally applicable to the Project including without limitation, the competitive sealed bidding process. Although the Ownerwill consider the advice of the Design Professional, the award of the construction contract is in the sole discretion of the Owner. 2.5.2 If the construction contract amount for the Project exceeds the total construction cost of the Project as set forth in the approved Detailed Statement of Probable Construction Costs of the Project submitted by the Design Professional, then the Design Professional, at its sole cost and expense, will revise the Construction Documents as may be required by the Owner to reduce or modify the quantity or quality of the work so that the total construction cost of the Project will not exceed the total construction cost set forth in the approved Detailed Statement of Probable Construction Costs. 2,6 CONSTRUCTION PHASE - ADlILNISTRATION OF THE CONSTRUCTION CONTRACT 2.6.1 The Design Professional's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of tho Contract for Construction and temrinates at the issuance to the Owner of the final Certificate for Payment, unless extended under the terms of Subsection 8.3.2. 2.6.2 The Design Professional shall provide detailed administration of the Contract for Construction as set forth below. For design professionals the administration shall also be in accordance with AML document A201, General Conditions of the Contract for Construction, current as of the date of the Agreement as may be amended by the City of Denton special conditions, unless otherwise provided in the Agreement. For engineers the administration shall also be in accordance with the Standard Specifications for Public Works Construction by the North Central Texas Council ofGovernments, current as of the date of the Agreement, unless otherwise provided in the Agreement. 2.63 Construction Phase duties, responsibilities and limitations of authority of the Design Professional shall not be restricted, modified or extended without -tvritten agreement of the Owner and Design Professional. 2.6.4 The Design Professional shall be a representative of and shall advise and consult with the Owner (1) during construction, and (2) at the Owner's direction from time to time during the correction, or warranty period described in the Contract for Construction. The Design Professional shall have authority to act on behalf efhe Owner only to the extent provided in the Agreement and these General Conditions, unless otherwise modified by written instrument. 2.6.5 The Design Professional shall observe the construction site at least one time a week, while construction is in progress, and as reasonably necessary while construction is not in progress, to become familiar with the progress and quality of the work completed and to determine if the work is being performed in a manner indicating that the work when completed will be in accordance with the Contract Documents. Design Professional shall provide Owner a written report subsequent to each on-site visit. On the basis of on-site observations the Design Professional shall keep the Owner informed of the progress and quality of the work, and shall exercise the Degree of Care and diligence in discovering and promptly reporting to the Owner any observable defects or deficiencies in the work of Contractor or any subcontractors. The Design Professional represents that he will follow Degree of Care in performing all Services under the Agreement. The Design Professional shall promptly correct any defective designs or specifications furnished by the Design Professional at no cost to the Owrner. The Oyrrers approval, acceptance, use of or payment for all or any part of the Design Professional's Services hereunder or of the Project itself shall in no way alter the Design Professional's obligations or the Owrners rights hereunder. 2.6.6 The Design Professional shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work. The Design Professional shall not be responsible for the Contractor's schedules or failure to carry out the work in accordance with the Contract Documents except insofar as such failure may result from Design Professional's negligent acts or omis- sions. The Design Professional shall not have control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the work. 2.6.7 The Design Professional shall at all times have access to the work wdrerever it is in preparation or progress 2.6.8 Except as may otherwise be provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall communicate through the Design Professional. Communications by and with the Design Professional's consultants shall be through the Design Professional. 2.6.4 Based on the Design Professional's observations at the site of the wort; and evaluations of the Contractor's Applications for Payment, the Design Professional shall review and certify the amounts due the Contractor. 2.6.10 The Design Professional's certification for payment shall constitute a representation to the Owner, based on the Design Professional's observations at the site as provided in Subsection 2.6.5 and on the data comprising the Contractors Application for Payment, that the work has progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to minor deviations from the Contract Documents cor- reetable prior to completion and to specific qualifications expressed by the Design Professional. The issuance of a Certificate for Payment shall further constitute a representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment shall not be a representation that the Design Professional has (1) reviewed construction means, methods, techniques, sequences or procedures, or (2) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. 2.6.11 The Design Professional shall have the responsibility and authority to reject work which does not conform to the Contract Documents. Whenever the Design Professional considers it necessary or advisable for implementation of the intent of the Contract Documents, the Design Professional wdll have authority to require additional inspection or testing of the work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Design Professional nor a decision made in good faith either to exercise or riot exercise such authority shall give rise to a duty or responsibility of the Design Professional to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons performing portions of the work. 2.6.12 The Design Professional shall review and approve or take other appropriate action upon Contractor's submittals such as Shop Drawings, Product Data and Samples for the purpose of (t) determining compliance with applicable laws, statutes, ordinances and codes, and (2) determining whether or not the work, when completed, will be in compliance with the requirements of the Contract Documents. The Design Professional shall act with such reasonable promptness to cause no delay in the work or in the construction of the Ownc€ or of separate contractors, while allowing sufficient time in the Design Professional's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities or for substantiating instructions for installation or performance of equipment or systems designed by the Contractor, all of which remain the Page 5 C:Wocuments and SettingslfpugsleylLocal SettingslTcmporary Internet FileslContent.Outlook\NVB8PWJS614346 Chiang Patel Yerby-Landfill Flood Reelamation.doePeak Flow Storage Basin responsibility of the Contractor to the extent required by the Contract Documents. The Design Professional's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Design Professional, of construction means, methods, techniques, sequences or procedures. The Design Professional's approval of a specific item shall not indicate approval of an assembly of which the item is a component. When professional certification of performance characteristics of materials, systems or equipment is required by the Contract Documents, the Design Professional shall be entitled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required by the Contract Documents. 2.6.13 The Design Professional shall prepare Change Orders and Construction Change Directives, with supporting documentation and data if deemed necessary by the Design Professional as provided in Subsections 3.1.1 and 33.3, for the Owner's approval and execution in accordance with the Contract Documents, and may authorize minor changes in the work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are not inconsistent with the intent of the Contract Documents. 2.6.14 On behalf of the Owner, the Design Professional shall conduct inspections to determine the dates of Substantial Completion and Final Completion, and if requested by the Owner shall issue Certificates of Substantial and Final Completion. The Design Professional will receive and review written guarantees and related documents required by the Contract for Construction to be assembled by the Contractor and shall issue a final certificate for Payment upon compliance with the requirements of the Contract Documents, 2.6.15 The Design Professional shall interpret and provide recommendations on matters concerning performance of the {Avner and Contractor under the requirements of the Contract Documents on written request of either the Owner or Contractor. The Design Professional's response to such requests shall be made with reasonable promptness and within any time limits agreed upon. 2.6.16 Interpretations and decisions of the Design Professional shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the fonn of drawings. When making such interpretations and initial decisions, the Design Professional shall endeavor to secure faithful performance by both Owner and Contractor, and shall not be liable for results or interpretations or decisions so rendered in good faith in accordance with all the provisions of this Agreement and in the absence ofnegligence, 16.17 The Design Professional shall render written decisions within a reasonable time on all claims, disputes or other matters in question between the Owner and Contractor relating to the execution or progress of the work as provided in the Contract Documents. 2.6.18 The Design Professional (1) shall render services under the Agreement in accordance with the Degree of Care; (2) will reimburse the Owner for all damages caused by the defective designs the Design Professional prepares; and (3) by acknowledging payment by the Owner of any fees due, shall not be released from any rights the Owner may have under the Agreement or diminish any of the Design Professional's obligations thereunder. 2.6.19 The Design Professional shall provide the Owner with four sets of reproducible prints showing all significant changes to the Construction Documents during the Construction Phase. ARTICLE 3 ADDITIONAL SERVICES 3.1 GENERAL 3.1.1 The services described in this Article 3 are not included in Basic Services unless so identified in the Agreement or Proposal, and they shall he paid for by the Owner as provided in the Agreement, in addition to the compensation for Basic Services. The services described under Sections 3.2 and 3.4 shall only be provided if authorized or confirmed in writing by the Owner, If services described under Contingent Additional Services in Section 3.3 are required due to circumstances beyond the Design Professional's control, the Design Professional shall notify the Owner in writing and shall not commence such additional services until it receives written approval from the Owner to proceed. If the Owner indicates in writing that all or part of such Contingent Additional Services are not required, the Design Professional shall have no obligation to provide those services. Owner will be responsible for compensating the Design Professional for Contingent Additional Services only if they are not required due to the negligence or fault of Design Professional. 3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES 3.2.1 if more extensive representation at the site than is described in Subsection 2.6.5 is required, the Design Professional shall provide one or more Project Representatives to assist in carrying out such additional on-site responsibilities. 3.2.2 Project Representatives shall be selected, employed and directed by the Design Professional, and the Design Professional shall be compensated therefor as agreed by the Owner and Design Professional. 3.3 CONTINGENTADDITIOISAL SERVICES 3.3.1 Making material revisions in Drawings, Specifications or other documents when such revisions are: 1. inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjustments in the Owners program or Project budget; 2. required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents, or 3. due to changes required as a result of the Owner's failure to render decision in a timely manner. 33.2 Providing services required because of significant changes in the Project including, but not limited to, size, quality, complexity, or the Ounces schedule, except for services required under Subsection 2.5.2. 3.33 Preparing Drawings, Specifications and other documentation and supporting data, and providing other services in connection with Change Orders and Construction Change Directives. Page 6 C:IDocuments and Settingslfpugsleyll.ocal Settings\Temporary Internet FileslContent.Outlook\1VB8PWJS614346 Chiang Patel Yerby-Landfill Flood Reclamation.docPeak Flow Storage Basin 33.4 Providing consultation concerning replacement of work damaged by fire or other cause during construction, and furnishing services required in connection with the replacement of such work. 3.3.5 Providing services made necessary by the default of the Contractor, by major defects or deficiencies in the work of the Contractor, or by failure of performance of either the Owner or Contractor under the Contract for Construction. 3.3.6 Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with the work. 33.7 Providing services in connection with a public hearing, arbitration proceeding or legal proceeding except where the Design Professional is party thereto. 33.8 Providing services in addition to those required by Article 2 for preparing documents for alternate, separate or sequential bids or providing services in connection with bidding or construction prior to the completion of the Construction Documents Phase. 339 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions to the contrary, all services described in this Article 3 that are caused or necessitated in whole or in part due to the negligent act or omission of the Design Professional shall be performed by the Design Professional as a part of the Basic Services under the Agreement with no additional compensation above and beyond the compensation due the Design Professional for the Basic Services. The intervening or concurrent negligence of the Owner shall not limit the Design Professional's obligations under this Subsection 33.9. 3.4 OPTIONAL ADDITIONAL SERVICES 3.4.1 Providing financial feasibility or other special studies. 3.4.2 Providing planning surveys, site evaluations or comparative studies of prospective sites. 3.4.3 Providing special surveys, environmental studies and submissions required for approvals of goverrunetmtal authorities or others having jurisdiction over the Project. 3.4.4 Providing services relative to future facilities, systems and equipment. 3.4.5 Providing services to investigate existing conditions or facilities or to make measured drawings thereof. 3.4,6 Providing services to verify the accuracy of drawings or other information furnished by the Owner. 3.4.7 Providing coordination of construction performed by separate contractors or by the Owners own forces and coordination of services required in connection with construction performed and equipment supplied by the Owner, 3.4.8 Providing detailed quantity surveys or inventories of material, equipment and labor. 3.4.9 Providing analyses of operating and maintenance costs. 3.4.10 Making investigations, inventories of materials or equipment, or valuations and detailed appraisals of existing facilities. 3.4.12 Providing assistance in the utilization of equipment or systems such as testing, adjusting and balancing, preparation of operation and maintenance manuals, training personnel for operation and maintenance and consultation during operation, 3.4.13 Providing interior design and similar services required for or in connection with the selection, procurement or installation of fumiture, furnishings and related equipment. 3.4.14 Providing services other than as provided in Section 2.6.4, after issuance to the Owner of the final Certificate for Payment and expiration of the Warranty period of the Contract for Construction. 3.4.15 Providing services of consultants for other than architectural, civil, structural, mechanical and electrical engineering portions of the Project provided as a part of Basic Services. 3.4.16 Providing any other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted architectural practice. 3.4.17 Preparing a set of reproducible record drawings in addition to those required by Subsection 2.6.19, showing significant changes in the work made during con- struction based on marked-up prints, drawings and other data furnished by the Contractor to the Design Professional. 3.4.18 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions to the contrary, all services described in this Article 3 that are caused or necessitated in whole or in part due to the negligent act or omission of the Design Professional shall be performed by the Design Professional as a part of the Basic Services under the Agreement with no additional compensation above and beyond the compensation due the Design Professional for the Basic Services. The intervening or concurrent negligence of the Owner shall not limit the Design Professional's obligations under this Subsection 3.4.18. ARTICLE 4 OWNER'S RESPONSIBILITIES 4.1 The Owner shall consult with the Design Professional regarding requirements for the Project, including (1) the Owner's objectives, (2) schedule and design constraints and criteria, including space requirements and relationships, flexibility, expendability, special equipment, systems and site requirements, as more speci- fically described in Subsection 2.2.1. Page 7 C:1Documents and SettingslfpugsleylLocal SettingslTemporary Internet FilestContent.Outlook11VB8P1VJS94346 Chiang Patel Yerby-Landfill Flood Reclumation.docPeak Flow Storage Basin 4.2 The Owner shall establish and update an overall budget for the Project including the Construction Cost, the Owners other costs and reasonable contingencies related to all of these costs. 43 If requested by the Design Professional, the Owner shall furnish evidence that financial arrangements have been made to fulfill the Owner's obligations under this Agreement. 4.4 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner or such authorized representative shall render decisions in a timely manner pertaining to documents submitted by the Design Professional in order to avoid unreasonable delay in the orderly and sequential progress of the Design Professional's services. 4.5 Where applicable, the Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site ofthe Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent drainage; rights-of-may, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data pertaining to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All the infomration on the survey shall be referenced to a project benchmark. 4.6 Where applicable, the Owner shall furnish the services of geotechnical engineers when such services are requested by the Design Professional. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and re- sistivity tests, including necessary operations for anticipating sub-soil conditions, with reports and appropriate professional recommendations, 4.6.1 The Owner shall furnish the services of other consultants when such services are reasonably required by the scope of the Project and are requested by the Design Professional and are not retained by the Design Professional as part of its Basic Services or Additional Services. 4.7 When not a part of the Additional Services, the Owner shall furnish structural, mechanical, chemical, air and water pollution tests, tests of hazardous materials, and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents. 4.8 The Owner shall furnish all legal, accounting and insurance counseling services as may be, necessary at any time for the Project, including auditing services the Owner may require to verify the Contractor's Applications for Payment or to ascertain how or for what purposes the Contractor has used the money paid by or on behalf of the Owner. 4.9 The services, information, surveys and reports required by Owner under Sections 4.5 through 4.8 shall be famished at the Owner's expense, and the Design Professional shall be entitled to rely upon the accuracy and completeness thereof in the absence of any negligence on the part of the Design Professional. 410 The Owner shall give prompt written notice to the Design Professional if the Owner becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents. 4.11 Design Professional shall propose language for certificates or certifications to be requested of the Design Professional or Design Professional's consultants and shall submit such to the Owner for review and approval at least fourteen (14) days prior to execution. The Owner agrees not to request certifications that would require knowledge or services beyond the scope of the Agreement. ARTICLE 5 CONSTRUCTION COST 5.1 CONSTRUCTION COST DEFINED 5.1.1 The Construction Cost shall be the total cost or estimated cost to the Owner of all elements of the Project designed or specified by the Design Professional. 5.1.2 The Constriction Cost shall include the cost at current market rates of labor and materials furnished by the Owner and equipment designed, specified, selected or specially provided for by the Design Professional, plus a reasonable allowance for the Contractor's overhead and profit. In addition, a reasonable allowance for con- tingencies shall be included for market conditions at the time of bidding and for changes in the work during construction. 5.1.3 Construction Cost does not include the compensation of the Design Professional and Design Professional's consultants, the costs of tic land, rights-of-way, financing or other costs which are the responsibility of the Owner as provided in Article 4. 5.2 RESPONSIBILITY FOR CONSTRUCTION COST 5.2.1 Evaluations of the Owner's Project budget, preliminary estimates of Construction Cost and detailed estimates of Construction Cost prepared by the Design Professional represent the Design Professional's best judgment as a design professional familiar with the construction industry. It is recognized, however, that neither the Design Professional nor the Owner has control over the cost of labor, materials or equipment over the Contractor's methods of determining bid prices, or over competitive bidding or market conditions. Accordingly, the Design Professional cannot and does not warrant or represent that bids or cost proposals will not vary from the Owners Project budget or from any estimate of Construction Cost or evaluation prepared or agreed to by the Design Professional. 5.2.2 No fixed limit of Construction Cost shall be established as a condition of the Agreement by the furnishing, proposal or establishment of a Project budget, unless such fixed limit has been agreed upon in writing and signed by the parties thereto. If such a fixed limit has been established, the Design Professional shall he permitted to include contingencies for design, bidding and price escalation, to determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents, to make reasonable adjustments in the scope of the Project and to include in the Contract Documents alternate bids to adjust the Construction Cost to the fixed limit Fixed limits, if any, shall be increased in the amount of an increase in the Contract Sum occurring after execution of the Contract for Construction. 5.23 If the Procurement Phase has not commenced within 90 days after the Design Professional submits the Construction Documents to the Owner, any Project budget or fixed limit of Construction Cost shall be adjusted to reflect changes in the general level of prices in the construction industry between the date of submission of the Construction Documents to the Owner and the date on which proposals are sought. Page 8 CADocuments and Settingslfpugslcy\Local SettingsWernporary Internet Files\Content.OutlookNN B8PRrIS614346 Chiang Patel Yerby-Landfill Flood Reclamation.doePeak Flow Storage Basin ARTICLE 6 OVS NERSIIIP AND USE OF DOCUMENTS 6.1 The Drawings, Specifications and other documents prepared by the Design Professional for this Project are instruments of the Design Professional's service and shall become the property of the Owner upon termination or completion of the Agreement. The Design Professional is entitled to retain copies of all such documents. Such documents are intended only be applicable to this Project, and Owner's use of such documents in other projects shall be at Owner's sole risk and expense. In the event the Owner uses any of the information or materials developed pursuant to the Agreement in another project or for other purposes than are specified in the Agreement, the Design Professional is released from any and all liability relating to their use in that project 6.2 Submission or distribution of documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the Design Professional's reserved rights. ARTICLE 7 TERMINATION, SUSPENSION OR ABANTO\'1V1E\'T 71 The Design Professional may terminate the Agreement upon not less than thirty days written notice should the Owner fail substantially to perform in accordance with the terms of the Agreement through no fault of the Design Professional. Owner may terminate the Agreement or any phase thereof with or without cause upon thirty (30) days prior written notice to the Design Professional. All work and labor being performed under the Agreement shall cease immediately upon Design Professional's receipt of such notice. Before the end of the thirty (30) day period, Design Professional shall invoice the Owner for all work it satisfactorily performed prior to the receipt of such notice. No amount shall be due for lost or anticipated profits. All plans, field surveys, and other data related to the Project shall become property of the Owner upon termination of the Agreement and shall be promptly delivered to the Owner in a reasonably organized form. Should Owner subsequently contract with a new Design Professional for continuation of services on the Project Design Professional shall cooperate in providing information. 7.2 If the Project is suspended by the Owner for more than 30 consecutive days, the Design Professional shall be compensated for services satisfactorily performed prior to notice of such suspension. When the Project is resumed, the Design Professional's compensation shall be equitably adjusted to provide for expenses incurred in the interruption and resumption of die Design Professional's services. 73 The Agreement may be terminated by the Owner upon not less than seven days written notice to the Design Professional in the event that the Project is permanently abandoned. If the Project is abandoned by the Owner for more than 90 consecutive days, the Design Professional or the Owner may terminate the Agreement by giving written notice, 7.4 Failure of the Owner to make payments to the Design Professional for work satisfactorily completed in accordance with the Agreement shall be considered substantial non- performance and cause for termination. 7.5 If the Owner fails to make payment to Design Professional within thirty (30) days of receipt of a statement for services properly and satisfactorily performed, the Design Professional may, upon seven days written notice to the Owner, suspend performance of services under the Agreement. 7.6 In the event oftermination not the fault of the Design Professional, the Design Professional shall be compensated for services properly and satisfactorily performed prior to termination. ARTICLE 8 PAYINIEN\'TS TO THE DESIGN PROFESSIONAL 8.1 DIRECT PERSONNEL EXPENSE 8.1.1 Direct Personnel Expense is defined as the direct salaries of the Design Professional's personnel engaged on the Project and the portion of the cost of their mandatory and customary contributions and benefits refuted thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, pensions and similar contributions and benefits. 8.2 REENIBURSABLE EXPENSES 8,11 Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the Design Professional and Design Professional's employees and consultants in the interest of the Project as identified in the following Clauses. 8.2.1.1 Expense of transportation in connection with the Project; expenses in connection with authorized out-of=town travel; long-distance communications; and fees paid for securing approval of authorities having jurisdiction over the Project. 8.2.1.2 Expense of reproductions (except the reproduction of the sets of documents referenced in Subsection 2.6.19), postage and handling of Drawings, Specifications and other documents. 8.2.13 If authorized in advance by the Owner, expense of overtime work requiring higher than regular rates. 8,11.4 Expense of renderings, models and mock-ups requested by the Owner. 8.2.1.5 Expense of computer-aided design and drafting equipment time when used in connection with the Project. 8.2.1.6 Other expenses that are approved in advance in writing by the Owner. 83 PA'YNIENi'S ON ACCOUNT OF BASIC SER'V'ICES 83.1 Payments for Basic Services shall be made monthly and, where applicable, shall be hr proportion to services performed within each phase of service, on the basis set forth in Section 2 of the Agreement and the schedule of work. 83,2 If and to the extent that the time initially established in the Agreement is exceeded or extended through no fault of the Design Professional, compensation for any services rendered during the additional period of time shall be computed in the manner set forth in Section 2 of the Agreement. Page 9 C;117ocuments and Seffingsl£pugsleyTocal SettingsUrmporary Internet Files\Content.Outfooklvi BSPWJS614346 Chiang Patel Yerby-Landfill Flood Reel arnation.doePeak Flow Storage Basin 833 When compensation is based on a percentage of Construction Cost and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in Section 2 of the Agreement based on (1) the lowest bona fide bid or (2) if no such bid or proposal is received, the most recent preliminary estimate of Construction Cost or detailed estimate of Construction Cost for such portions of the Project. 8.4 PAYMENTS ON ACCOUN'T' OF ADDITIONAL SERVICES 8.4.1 Payments on account of the Design Professional's Additional Services and for Reimbursable Expenses shall be made monthly within 30 days after the presentation to the Owner of the Design Professional's statement of services rendered or expenses incurred. 8.5 PAYMENTS WI"T"HHELD No deductions shall be made from the Design Professional's compensation on account of penalty, liquidated damages or other sums withheld from payments to contractors, or on account of the cost of changes in the work other than those for which the Design Professional is responsible. 8.6 DESIGN PROFESSIONAL'S ACCOUNTING RECORDS Design Professional shall make available to Owner or Owner's authorized representative records of Reimbursable Expenses and expenses pertaining to Additional Services and services performed on the basis of a multiple of Direct Personnel Expense for inspection and copying during regular business hours for three years after the date of the final Certificate of Paynnenf or until any litigation related to the Project is final, whichever date is later. ARTICLE 9 INDEHINITY 9.1 The Design Professional shall indemnify and save and hold harmless the Owner and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by the Owner, and including, without Iimitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the Design Professional or its officers, shareholders, agents, or employees in the perfomnance of the Agreement. 9.2 Nothing herein shall be construed to create a liability to any person who is not a party to the Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to the Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. AR'T'ICLE 10 INSURANCE During the performance of the Services under the Agreement, Design Professional shall maintain the following insurance with an insurance company licensed or authorized to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: 10.1 Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $2,000,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $250,000 in the aggregate. 10.2 Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. 10.3 Worker's Compensation insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident including occupational disease. 10.4 Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. 10.5 The Design Professional shall furnish insurance certificates or insurance policies to the Owner evidencing insurance in compliance with this Article 10 at the time of the execution of the Agreement. The General Liability and Automobile Liability insurance policies shall name the Owner as an additional insured, the Workers' Compensation policy shall contain a waiver of subrogation in favor of the Owner, and each policy shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days' prior written notice to Owner and Design Professional. In such event, the Design Professional shall, prior to the effective date of the change or cancellation, furnish Owner with substitute certificates of insurance meeting the requirements of this Article 10. ARTICLE 11 IYUSCELLANEOUS PROVISIONS 11.1 The Agreement shall bo governed by the laws of the State of Texas. Venue of any suit or cause of action under the Agreement shall lie exclusively in Denton County, Texas. 11.2 The Owner and Design Professional, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. The Design Professional shall not assign its interests in the Agreement without the written consent of the Owner. 11.3 The term Agreement as used herein includes the executed Agreement, the Proposal, these General Conditions and other attachments referenced in Section 3 of the Agreement which together represent the entire and integrated agreement between the Owner and Design Professional and supersedes all prior negotiations, representations or agreements, either written or oral. The Agreement may be amended only by written instrument signed by both Owner and Design Professional. When interpreting the Agreement the executed Agreement, Proposal, these General Conditions and the other attachments referenced in Section 3 of the Agreement shall to the extent that is reasonably possible be read so as to harmonize the provisions. However, should the provisions of these documents be in conflict so that they can not be reasonably harmonized, such documents shall be given priority in the following order: 1. The executed Agreement 2, Attachments referenced in Section 3 of the Agreement other than the Proposal 3. These General Provisions 4. The Proposal Page 10 C:1Documents and SettingsUpugsley\Local SettingslTemporary Internet FileslContent.Outlooklt4rB38PR'J5614346 Chiang Patel Yerby-Landfill Flood Reclamation.docPeak Flow Storage Basin 11A Nothing contained in the Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Design Professional. 11.5 Upon receipt of prior aTitten approval of Owner, the Design Professional shall have the right to include representations of the design of the Project, including photographs of the exterior and interior, among the Design Professional's promotional and professional materials, The Design Professional's materials shall not include the Owner's confidential or proprietary information if the Owner has previously advised the Design Professional in writing of the specific information considered by the 0,Amer to be confi- dential or proprietary. The Owner shall provide professional credit for the Design Professional on the construction sign and in the promotional materials for the Project. 11.6 Approval by the Owner shall not constitute, nor be deemed a release of the responsibility and liability of the Design Professional, its employees, associates, agents, subcontractors, and sabconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the ONYner for any defect in the design or other work prepared by the Design Professional, its employees, subcontractors, agents, and consultants. 11.7 All notices, communications, and reports required or permitted under the Agreement shall he personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below signature block on the Agreement, certified mail, return receipt requested, unless otherwise specified herein. All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days after mailing. 11.5 If any provision of the Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of the Agreement and shall not cause the remainder to be invalid or unenforceable. in such event, the parties shall reform the Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. 11.9 The Design Professional shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended during the term of this Agreement. 11.10 In performing the Services required hereunder, the Design Professional shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. 11.11 The captions of the Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of the Agreement. Page 11 C:IDocuments and Settingslfpugsley\Local Settings\Temporary Internet 1:iteslContent.Outlook\N~B8P~VJS614346 Chiang Patel Yerby-landfill Flood Reclamation.docPeak Flow Storage Basin CITY OF DENTON INSURANCE REQUIREMENTS FOR CONTRACTORS Bidder's attention is directed to the insurance requirements below. It is highly recommended that bidders confer with their respective insurance carriers or brokers to determine in advance of Bid submission the availability of insurance certificates and endorsements as prescribed and provided herein. If an apparent low bidder fails to comply strictly with the insurance requirements, that bidder may be disqualified from award of the contract. Upon bid award, all insurance requirements shall become contractual obligations, which the successful bidder shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. As soon as practicable after notification of bid award, Contractor shall file with the Purchasing Department satisfactory certificates of insurance, containing the bid number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; However, Contractors are strongly advised to make such requests prior to bid opening, since the insurance requirements may not be modified or waived after bid opening unless a written exception has been submitted with the bid, Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted. Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A. • Any deductibles or self-insured retentions shall be declared in the bid proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Page 12 CADocuments and ScttingslfpugsleylT.oca1 SettingsWemporary Internet Files\Content.Outtook1WB8PWJS614346 Chiang Patel Yerby-Landfill Flood Reclamation.docNak Flow Storage Basin Liability policies shall be endorsed to provide the following 09 Name as additional insured the City of Denton, its Officials, Agents, Employees and volunteers. That such insurance is primary to any other insurance available to the additional insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. All policies shall be endorsed to read: "SAID POLICY SHALL NOT BE CANCELLED, NONRENEWED OR MATERIALLY CHANGE WITHO UT 30 DA YS AD VANCED WRITTEN NOTICE BEING GIVEN TO THE OWNER (CITY) EXCEPT WHEN THE POLICY IS BEING CANCELLED FOR NONPAYMENT OF PREMIUM IN WHICH CASE 10 DAYS AD VANCE WRITTEN NOTICE IS REQUIRED' Should any of the required insurance be provided under a claims-made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted: Page 13 CADocuments and Settingslfpugsleyll.oeal SettingsUernporary ]ntemet Files\Content.outlook\WB8PNN'JSa4346 Chiang Patel Yerhy-1-andfill Flood Reelamation.docPeak Flow Storage Basin [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $ 500,000 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: • Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. Coverage B shall include personal injury. Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least. Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $300,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: any auto, or all owned, hired and non-owned autos. [X] Workers Compensation Insurance Contractor shall purchase and maintain Worker's Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be Page 14 CADocurnents and Settingslfpugsley\Local SettingsYremporary Tntemet Files\Content.0utlook%WB8PXVJSM4346 Chiang Patel Yerby-Landfill Flood Reelaination.docPeak Plow Storage Basin named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Worker's Compensation Commission (TWCC). [ ] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an"occurrence" basis, and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least combined bodily injury and property damage per occurrence with a aggregate. [ ] Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than each occurrence are required. [ ] Professional Liability Insurance Professional liability insurance with limits not less than per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City fiends. Limits of not less than each occurrence are required. Page 15 C:'Documents and Sctt1ngslfpugsley\Local SettingsUemporary Internet Files\Content.©utlook\NVB8PW.1SR4345 Chiang Patel Yerby-Landfill Flood Reclamation.doePeak Flow Storage Basin [ ] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. Page 16 CADocuments and Settingslfpugsle}~Local SettingsMmporary Internet FileslContent.Outtook\IVB8PWJM4346 Chiang Patel Yerby-Landfill Flood Reclamation.docFeak Flow Storage Basin ATTACHMENT 1 [X] Worker's Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ("certificate")-A copy of a certificate of insurance, a certificate of authority to self-insure issued by the commission, or a coverage agreement (TWCC- 81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's/person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ("subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner-operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: Page 17 C1Documents and SettingsWpugsleyTocal SettingslTemporary hitemet FileslContent.Ontlook\wBSPWJS614346 Chiang Patel Yerby-Landfill Flood Reclamation.docPeak Flow Storage Basin (1) a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and (2) no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. H. The contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. 1. The contractor shall contractually require each person with whom it contracts to provide services on a project, to: (1) provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; (2) provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; (3) provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (4) obtain from each other person with whom it contracts, and provide to the contractor: (a) a certificate of coverage, prior to the other person beginning work on the project; and Page 18 C:IDocuments and settingsVpugste}Eocal SettingsUemporary Internet Filcs\Content.outlook\IVBSP~VJS614346 Chiang Patel Yerby-Landfill Flood Reclamation.doWeak Plow Storage Basin (b) a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (5) retain all required certificates of coverage on file for the duration of the project and for one year thereafter; (6) notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and (7) contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers` compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self= insured, with the commission's Division of Self Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. Page 19 CADocuments and Settingslfpugsley\Loeal SettingsUernporary Internet FileslContent.Outlook\NNWPR'JS6\4346 Chiang Patel Yerby-Landfill Flood Reclamation.docPeak Plow Storage Basin Ar- Partners for a Better Quality of Life June 16, 2009 Mr, David Dugger Landfill Manager Solid Waste Department Denton Municipal Utilities 1527 S. Mayhill Road Denton, Texas 76208 RE: Denton Landfill Fooodplain Reclamation Pecan Creek and Zone A Tributary City of Denton, Texas Dear Mr. Dugger: 09ENVWRS.00.25 CP&Y, Inc. is pleased to provide you with this proposal for engineering services for the above-referenced project. It is our understanding that the City of Denton Solid Waste Department is proposing to reclaim a portion of the Pecan Creek 100-year floodplain in order to expand landfill operations to the north of the existing landfill site, In addition, the Solid Waste Department would like to evaluate and determine the 100-year water surface elevations and the corresponding floodplain delineation for a tributary to Pecan Creek located adjacent to the south/southeast side of the landfill property. Identifying 100-year water surface elevations and the corresponding floodplain limits for the tributary would be of benefit for future landfill expansion and/or operations. Pecan Creek and the un-named tributary are shown on Flood Insurance Rate Map (FIRM) panels 48121CO38OF and 48121C0387E, Effective Date: April 2, 1997, to be streams that have been mapped as part of the National Flood Insurance Program (NFIP). Base Flood Elevations (BFE's) have been determined by a detailed study and the 100-year floodplain and floodway have been mapped and are shown on the FIRM for Pecan Creek. The current floodplain designation shown on the FIRM for the tributary is Zone A, and BFE's have not been determined. The Zone A floodplain delineation is approximate and is not based on a detailed study. Based on our understanding of the project scope, CP&Y proposes the following work items: BASIC SERVICES: 1) Data Acquisition and Review - CP&Y will request the current hydrologic and hydraulic modeling data from the City of Denton and from FEMA for Pecan Creek and the south tributary as well as data from previous Letters of Map Revision (LOMB), if applicable, and will review the data received in order to incorporate it into the analyses. CP&Y will meet with City of Denton staff in order to discuss the project and the applicable floodplain criteria. 2) Pecan Creek Analysis a. Hydrologic Analysis CP&Y will use the FEMA existing conditions discharges and the fully-developed watershed discharges (if available from the City of Denton) for the hydraulic analysis of Pecan Creek and the proposed landfill reclamation project. CP&Y will not calculate any discharges for Pecan Creek. The currently-effective FEMA discharges will be 1820 Regal Row, Suite 208 Dallas, Toxas 75235 214.638.0500 - 21038.3723 fax www.cpyi.com Mr. David Dugger Page 2 of 6 June 16, 2009 Denton Solid Waste Landfill Floodplain Reclamation used in any CLOMRfLOMR submittal. b. Hydraulic Analysis - CP&Y will use the Effective Hydraulic Model obtained from FEMA, if available, and the current topographic map (1-foot contours) of the project area to create a Corrected Effective or Revised Baseline Model for Pecan Creek. The Revised Baseline Model will be modified to include the proposed landfill reclamation limits and a Proposed Model with mitigation will be prepared in order to provide a reclamation scenario that meets City of Denton and FEMA floodplain criteria. It is our understanding that the City's floodplain criteria do not allow increases in 100-year water surface elevations on adjacent land owners and do not allow any loss of valley storage for watersheds greater than 1 square mile. Other criteria that may need to be considered include issues relating to Steam Buffer Zones and areas along streams that have been designated by the City of Denton as Environmentally Sensitive Areas (ESA's). Based on CP&Y's preliminary review of the FIRM for the project area, the hydraulic analysis for Pecan Creek will include the delineation of a proposed floodplain and the determination of a revised floodway. Based on preliminary discussions with Denton Solid Waste Landfill staff, CP&Y anticipates that it will be necessary to develop a bypass swale scenario for a portion of Pecan Creek through the project reach in order to provide additional conveyance to offset the hydraulic impacts of the reclamation. CP&Y will develop up to two (2) configurations/alignments of a proposed bypass swale for analysis. Due to the City's requirement for no loss of valley storage, additional excavation, beyond that required for the bypass swale, may be required. CP&Y will evaluate the valley storage loss and will develop a mitigation plan, if necessary, 3) Zone A/South Tributary Analysis - a. Hydrologic Analysis - CP&Y will delineate the drainage area and will calculate the existing and future fully-developed watershed 100-year discharges for the un-iiamed Zone A tributary (Tributary) using the unit hydrograph method. It is anticipated that existing and future land use data and soils data can be readily obtained from the City of Denton. b. Hydraulic Analysis CP&Y will create a hydraulic model of the un-named Tributary using current topographic mapping data (1-foot contours) provided by the Solid Waste Department. The resulting floodplain will be delineated and BFE's determined for the portion of the Tributary that is located adjacent to the landfill site. 4) FEMA Submittal It is anticipated that a Conditional Letter of Map Revision (CLOMR) will be required based on City of Denton floodplain criteria. CP&Y will prepare a CLOMR request for submittal to the City of Denton and to FEMA, The CLOMR will include a report, tables, forms, Partners for a Better Quality of life P&YJ Mr. David Dugger Page 3 of 6 June 16, 2009 Denton Solid Waste Landfill Floodplain Reclamation exhibits and backup data for the hydraulic analysis and map revisions and will be prepared based on proposed conditions for Pecan Creek and existing conditions for the Tributary. CP&Y will respond to City and/or FEMA comments during the CLOMR review process. 5) Engineering Drawings - Developing a mitigation scenario with a bypass Swale for added conveyance will be considered "channelization" by FEMA. FEMA requires the submittal of "engineering drawings of the channelization certified by a registered professional engineer". CP&Y estimates that three (3) plan sheets will be required to provide the necessary level of detail for the proposed bypass swale in support of the CLOMR. ESTIMATE OF PROBABLE COST CP&Y will provide the proposed services on a time-and-materials basis in accordance with our attached Standard Rate Schedule. For your budgeting purposes, the estimated labor cost for CP&Y's scope of services is shown below according to the outline used in the Basic Services description above: 1) Data Acquisition $ 3,000 2) Pecan Creek Analysis $31,000 3) Zone A/South Tributary Analysis $10,000 4) FEMA Submittal (CLOMR) $12,000 5) Engineering Drawings $ 6,000 Non-Labor/Reimbursable Expenses $ 2,000 Estimate of Probable Cost Total $63,000 It should be noted that the regulatory review fee for the CLOMR application is not included in this cost estimate. FEMA's current fee schedule lists a CLOMR review fee of $4,800. The cost estimates listed above are based on the assumptions and conditions contained herein. Any deviations in the project from these specified assumptions and conditions could result in additional costs. The actual amount billed will depend on the actual labor time and non-labor expenses required. ASSUMPTIONS AND CONDITIONS The scope of services and the cost estimate provided herein are based on several assumptions and conditions as listed in the Basic Services and as follows: LA1-_ P &YJ Partners for a Bettor Quality of Life Mr. David Dugger Page 4 of 6 June 16, 2009 Denton Solid Waste Landfill Floodplain Reclamation 1. The scope of services and cost estimate do not include public meetings or presentations. FEMA, the City of Denton, and/or other entities will provide requested data (if necessary) in a timely manner. This scope of services does not include CP&Y having to correct any deficiencies found in any data provided by others. This proposal assumes that FEMA will process the CLOMR for Pecan Creek and the Zone A Tributary in one package as a single CLOMR submittal with one fee. If FEMA, or the City, determine that the project must be broken up into two separate submittals, then, upon request, CP&Y will prepare two separate CLOMR documents for submittal as additional services on a time-and-materials basis. It should be noted that two separate CLOMR submittals would likely result in two review fees. 4. CP&Y assumes that any current modeling data for Pecan Creek and/or the Tributary was based on the HEC-2 computer model format. Due to the potential complexity of the hydraulic analysis and FEMA's policy of encouraging the conversion to HEC-RAS, CP&Y will use the HEC-RAS computer program for this project and will convert the existing HEC-2 model data to HEC-RAS, if necessary. 5. CP&Y assumes that the topographic data received from the City of Denton will be accurate and sufficient for the development of hydraulic cross sections and reach lengths, the delineation of the floodplain boundary, and the development of proposed project conditions, and that the vertical datum used for the development of the topographic data is consistent with the vertical datum of the FIRM panel and consistent with the requirements of the City of Denton, Denton County, and FEMA. All topographic data will be provided by others. CP&Y assumes that field surveying will not be required for the analyses included in this scope of services. 6. This scope of services does not include any detention pond sizing or analysis. 7. This scope of services is for hydrologic and hydraulic analyses and a CLOMR submittal to FEMA. CLOMR submittals are based on proposed project conditions. This scope of services does not include a LOMR submittal, as LOMR's are based on as-built conditions and it is currently unknown when the full floodplain reclamation project would be completed. Upon completion of construction within the 100-year floodplain and upon request, CP&Y will prepare a separate proposal for LOMR preparation and submittal services. 8. This scope of services does not include any hydrologic or hydraulic analysis for the stream that crosses through the proposed landfill expansion site to the north, The un-named stream is a tributary to Pecan Creek and has a shaded Zone X designation on the FIRM. CP&Y will provide a proposal for hydrologic and hydraulic analyses for the un-named tributary, if requested. Partners for a Better Quality of Life C NyJ Mr. David Dugger Page 5 of 6 June 16, 2009 Denton Solid Waste Landfill Fioodplain Reclamation The cost estimate provided herein does not include any City of Denton, USACE, TCEQ, or FEMA processing, review, permit or regulatory fees. CP&Y's cost estimate for this scope of services does not include paying any fees to any agency. 10. CP&Y's scope of services does not include any analysis, delineation, determination or any regulatory support activities related to wetlands, waters of the United States, or other environmental issues. 11. As CP&Y's scope of services will be based upon designs and information provided by others, the results of CP&Y's products (e.g., water surface elevations, floodplain delineations, CLQMR submittal documents) are dependent upon such designs and information provided by others and on the assumption that the project will be completed exactly as designed and in accordance with design plans (whether preliminary or final as-built plans). Therefore, CP&Y cannot and does not accept any responsibility for the accuracy of such designs and information provided by others, or any future actions by others, or any failure to perform or negligence on the part of others, which may affect the accuracy of flood study results and information provided to regulatory authorities. With these conditions in mind, the client, agrees to indemnify, defend and hold harmless CP&Y against any and all lawsuits, claims, liabilities, causes of action, losses, damages, forfeitures, penalties, fines, costs and expenses, including, but not limited to, reasonable attorney fees and expenses, by whomever asserted, which may arise in conjunction with the client and their representatives, or any matters related thereto. If you wish for CP&Y to begin work toward the completion of the scope of services under the terms contained herein, please indicate your approval and notice-to-proceed by signing and dating in the space provided below and returning one executed copy to our office. We appreciate the opportunity to work with you on this project and will make every effort to provide responsive, quality service. Please call me at 2141589-6943 if you have any questions. Sincerely, Michael R. Perkins, P.E. Senior Engineer Attachments: Standard Rate Schedule cc; Project File Partners for a Bolter Quality of Life P L &YJ Mr. David Dugger Page 6 of 6 June 16, 2009 Denton Solid Waste Landfill Ftoodplain Reclamation CP&Y, Inc. Approval: Mr. Bill Hindman, P.E. Date Principal CP&Y, Inc. Approval and Notice to Proceed: Mr. David. Dugger City of Denton Solid Waste Landfill Date b`241/ (Z' e7 Partners for a Better Qualify of life C Wyj CP&Y, Inc. WATER RESOURCES RATE SCHEDULE Personnel: RATES (Effective 03104109) Personnel costs for time-and-materials services are reimbursed on an hourly basis in accordance with the following rate schedule: Principal Engineer $185 - 225/hr Senior Associate Engineer $170 - 215/hr Senior Engineer $135 - 180/hr Project Engineer $ 95 - 155/hr Engineer-in-Training $ 55 - 120/hr CADD Support/Technician $ 48 - 95/hr Clerical/Administrative Support $ 32 - 55/hr Non-Labor Expenses: Non-labor expenses include travel costs and other purchased services project costs including, but not limited to, subcontractor services, reproductions, rented and leased equipment, data costs, and computer digital file costs. Mileage costs are billed at rates dictated by the Internal Revenue Service. Invoice Terms: Invoices for all services rendered are Davable upon receiot. Invoices are submitted on a monthly basis and are normally mailed before the 100, of each month. All necessary application fees, review fees, and/or processing fees required by regulatory authorities and agencies are the responsibility of the client and not included in CP&Y's budget. [Note: The above personnel rates do not apply for expert testimony services.] Client Signature: Date: Partners for a Better Quality of Life C NyJ I DRAFT MINUTES 2 PUBLIC UTILITIES BOARD 3 June 28, 2010 4 5 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas was 6 present, the Chair of the Public Utilities Board thereafter convened into an open meeting on 7 Monday, June 28, 2010 at 9:02 a.m. in the Service Center Training Room, City of Denton 8 Service Center, 901-A Texas Street, Denton, Texas. 9 10 Present: Chair Dick Smith, Vice Chair Bill Cheek, Bill Grubbs, Randy Robinson, Phil 11 Gallivan, Barbara Russell and John Baines 12 13 Ex Officio Member: 14 Howard Martin, ACM Utilities 15 16 Absent: Ex Officio Member: George Campbell City Manager 17 18 OPEN MEETING: 19 20 21 ITEMS FOR INDIVIDUAL CONSIDERATION: 22 23 Board Member Gallivan left before item 3 was presented. 24 25 3) Consider approval of a professional services agreement amendment between Chiang, Patel, 26 and Yerby, Inc. (CP&Y) and the City of Denton Solid Waste Department expanding the 27 scope of services previously defined, allowing for CP&Y to provide engineering consulting 28 services related to the landfill expansion to include, 1) hydrologic and hydraulic evaluations, 29 2) the preliminary sizing and location of a 4.5 million gallon flow equalization basin, and 3) 30 analysis of the floodplain/floodway impacts of extending a landfill retaining wall and berm 31 along the creek side of the flow equalization basin downstream to the headwork's of the 32 Wastewater Treatment Plant, for a projected total cost of $41,050. 33 34 35 AMC Martin called on Vance Kemler to present this item. Kemler stated this is one of the on- 36 going projects in the Solid Waste fund and that staff is attempting to maintain at least 50 years of 37 operating capacity and the infrastructure to support the Solid Waste and the recycling services. 38 In 2008 staff worked with the engineering firm, CP&Y to determine whether the City could 39 utilize part of the existing 900 acres on a joint site with Wastewater and Solid Waste to expand 40 the Solid Waste facilities. That study, which included geological investigations, was completed 41 provided to staff in January 2009. The study provided a positive report based on state and 42 federal requirements for landfills with nothing that would be prohibitive in expanding the 43 landfill. Critical items from the study are the geology; what is below the ground, and is there 44 something there that would present a problem. Secondly since there is a creek which runs 45 through part of the 900 acres in the proposed expansion that creek would be on the north east 46 side of the expansion. After completing the initial study staff met with a specialty group that 47 deals with flood plains. That group conducted a flood plain study on the section where the solid 48 waste operation would be adjacent to the creek and is located more on the side of the wastewater Draft Minutes of the Public Utilities Board meeting June 28, 2010 Page 2 of 2 1 treatment plant. That project given to the CP&Y Group went to PUB in June 2009. Most of that 2 work has been completed, and because the property to the north is owned by the wastewater 3 plant, staff is proposing a change in that flood plain study. The proposed expansion that staff is 4 investigating is to expand along the Mayhill Road and along the creek, which would expand the 5 facility to meet the needs of our citizens for more than 50 years and may very well meet those 6 need for generations. The item today is to expand the flood plain study to make sure the planned 7 ponds are placed in an area to best utilize the property for both departments. 8 9 Board Member Robinson moved to approve item 3 with a second from Board Member 10 Grubbs. The motion was approved by a 6-0 vote. 11 12 The meeting was adjourned by consensus at 9:50am. 13 This page left blank intentionally . AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Electric Metering Operations ACM: Howard Martin, 349-8232 SUBJECT Consider adoption of an ordinance accepting sealed proposals and awarding agreements for the purchase of services regarding a Utility Meter Data Management Solution related to an automatic meter reading infrastructure system for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFSP 44448-request for sealed proposals for Utility Meter Data Management Solution; in an amount not-to-exceed $395,030). The Public Utilities Board recommends approval (5-0). BACKGROUND Currently, DME collects meter readings on a monthly basis, and the data is stored in the Harris billing system. As we move forward with AMI and smart meters we will be collecting 15 minute interval data on a daily basis for all of our customers. The Harris billing system is not designed to handle the mass amount of data we will be collecting, therefore requiring the need for a Meter Data Management Solution (MDMS). A MDMS is highly scalable and will centralize the collection, processing, storage, and complex analysis of meter and other utility-related data. MDMS provides consistent, meaningful data to upstream utility applications supporting any number of AMI and AMR collection systems. The MDMS will provide the monthly billing data to the Harris NorthStar billing system. OPTIONS 1. Award a contract for purchase of the MDMS to Itron, Inc. 2. Do not purchase an MDMS. RECOMMENDATION DME recommends awarding the contract for purchase of an MDMS to Itron, Inc. as the vendor with the highest evaluated score. PRIOR ACTION/REVIEW (Council, Boards, Commissions) This item was presented to the Public Utilities Board at their July 12, regular meeting. The Board voted approval (5-0). FISCAL INFORMATION FY09 CIP budget accounts: 602575496.1350.3700 BID INFORMATION Responding Vendors: Itron, Inc. EnergyICT, Inc./Wesco HD Supply Utilities/Electsolve EXHIBITS 1. Ordinance 2. Maintenance Agreement 3. Software License and Services Agreement 4. Committee evaluation 5. PUB Meeting Minutes Respectfully submitted: Phil Williams General Manager of Electric Utilities Prepared by: Kyle Tunnell Meter Planner / Coordinator ORDINANCE NO. 2010- AN ORDINANCE ACCEPTING SEALED PROPOSALS AND AWARDING AGREEMENTS FOR THE PURCHASE OF SERVICES REGARDING A UTILITY METER DATA MANAGEMENT SOLUTION RELATED TO AN AUTOMATIC METER READING INFRASTRUCTURE SYSTEM FOR DENTON MUNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFSP 44448-REQUEST FOR SEALED PROPOSALS FOR UTILITY METER DATA MANAGEMENT SOLUTION; IN AN AMOUNT NOT-TO-EXCEED $395,030). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the purchase of a Utility Meter Data Management System in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and reviewed and recommended that the herein described proposals are the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request for Sealed Proposals" on file in the office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City, considering the relative importance of price and the other evaluation factors included in the request for proposals. RFSP NUMBER CONTRACTOR AMOUNT 44448 Itron, Inc. $395,030 SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into formal written agreement(s) as a result of the acceptance, approval, and awarding of the proposal, the City Manager or his designated representative is hereby authorized to execute the written agreements; provided that the written agreements are in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents, which are herein approved and accepted. SECTION 4. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY 12 4f By: MAINTENANCE AGREEMENT This Maintenance Agreement (this "Maintenance Agreement') is entered into as of the last date of execution on the signature page hereto (the "Effective Date") by and between Itron, Inc. ("Itron") and of the City of Denton, Texas (Denton Municipal Electric) ("Customer"). Itron and Customer may each be referred to as a "Party" and together as the "Parties." The Parties agree as follows: 1. Technical Support a. Support Services. Itron will make available qualified technical representatives by telephone, email or other remote means during its then-current normal business hours to assist Customer Coordinators (defined below) with the operation of and answer questions related to the Itron software (the "Software") identified on Attachment A which is covered by the services described herein (the "Maintenance Services"). Such technical support shall include, but is not limited to, troubleshooting, problem diagnosis, release or system management, and recommendations for fully utilizing the Products. Itron's current Support Services contact and support hours are described in the "Itron Supports Services Contacts" document (the "Contacts Document'), a copy of which is attached hereto as Attachment B. Consistent with Section 1.c hereof, Customer will not use Support Services technical representatives in lieu of having qualified and trained support personnel of its own. b. Field Support. Upon mutual agreement of the Parties, Itron will dispatch support personnel to Customer's location to provide technical support. Such support will be billed at Itron's then-current hourly rates (with reasonable travel and living expenses invoiced at Itron's cost) unless the cause of the reported problem is found to be the fault of Itron. C. Customer Coordinators and Service Requests. Customer will identify no more than 2 supervisory level employees (each a "Customer Coordinator") for each Itron product line, as identified in the Contacts Document, to serve as administrative liaisons to Itron for all matters pertaining to the Maintenance Services for such product line. Customer Coordinators shall report problems with the Software (each such report, a "Service Request') as soon as practicable for entry into Itron's support tracking system. Before a Customer Coordinator interfaces with Itron, he or she will attend training sessions offered by Itron to ensure that he or she is (a) knowledgeable about the operation of the Products, and (b) qualified to perform problem determination and remedial functions with respect to the Products. Such training sessions will be at Itron's then-current rates. Customer will be solely responsible for all travel and other expenses incurred in connection with such training sessions. If Itron notifies Customer that additional training is necessary, Customer will promptly ensure that all applicable employees and/or Customer Coordinators receive such training. t. Software Maintenance a. Definitions. "Error" means a failure of the Software to substantially comply with the applicable published ltron specifications. "Fix" means a correction of an Error, including a work-around, in order for the Software to function in accordance with the applicable published Itron specifications. "Improvement' means an update, modification, enhancement, extension, new version (regardless of name or number), new module, or other change to the Software that is developed or otherwise provided by Itron. "Software Release" means a collection of Fixes or Improvements made available to Itron customers(either via physical media or download access). b. Fixes. Itron shall make commercially reasonable efforts to provide Fixes for Errors identified in a Service Request in accordance with the Response Time, Effort Level, and Escalation Path guidelines (together, the "Service Levels") outlined below for the applicable Severity Levels identified therein. Itron's obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, and (iii) assigning its most qualified personnel to help Itron address the Error. Severity Level Response Times' Effort Level and Escalation Path Severity Level 1. An Error for which there Itron will respond to the Service Itron will have technical analysts make diligent efforts on a 24x7 is no work-around that causes the Software Request within 4 business hours of basis, or as otherwise agreed by the Parties. A Service Request to be unavailable. receipt and will update Customer at shall be escalated to Itron's Call Center Manager if a Fix is not three hour intervals each day for provided within 1 business day of Itron's receipt of a Service unresolved Service Requests, or as Request. otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three hours. Severity Level 2. An Error other than a Itron will respond to the Service Itron will have technical analysts make diligent efforts during Severity Level 1 Error for which there is no Request within 1 business day and normal business hours. Service Requests shall be escalated to work-around that results in a severe loss of will update Customer at least every Itron's Call Center manager if a Fix is not provided within 3 access to the Software or that causes other day. Customer will respond to business days of Itron's receipt of a Service Request. essential features of the Software to not an Itron inquiry or request within 1 work. business day. Severity Level Response Times Effort Level and Escalation Path Severity Level 3. An Error other than a Itron will respond to the Service Itron will have technical analysts make diligent efforts during Severity Level 1 or Severity Level 2 Error Request within 2 business days. normal business hours. that has a material impact on the functionality of the Software (e.g., a feature is not working as documented but a work- around is available and significant business functions are not material) impaired). Severity Level 4. An Error other than a Itron will respond to the Service Itron will have its support analysts devote commercially Severity Level 1, Severity Level 2 or Request within 3 business days, or reasonable efforts during normal business hours. Severity Level 3 Error. as otherwise agreed by the Parties. Severity Level 5. A Service Request for an N/A Itron will pass the Service Request to its internal Product enhancement or new functionality. Management for review. If the enhancement or new functionality requires more immediate attention, Itron Consulting Services can be engaged to create a customized proposal at Itron's then-current services rates. C. Improvements. Itron shall provide Improvements, if any, at its then-current price for such Improvements (or at no charge if such Improvements are made available to Itron customers generally at no charge). d. Software Releases. I. Release Numbering Convention. Fixes and/or Improvements are made available to customers through periodic Software Releases. For informational purposes, Itron's current practice (which may be changed at any time in Itron's discretion) is to provide Releases using the numbering convention "XX.YY.ZZ." • The "XX" in Itron's numbering convention refers to a "System Release," which is a new version of the item of Software. A System Release may include Fixes, Improvements or interfaces to new functional modules or platforms not previously supported by Itron. • The "YY" in Itron's numbering convention refers to a "Service Pack Release," which is an update to a System Release. Service Pack Releases may include Fixes or Improvements and are provided to Itron customers generally on a periodic basis. • The "ZZ" in Itron's numbering convention refers to a "Hot Fix Release," which is an unscheduled release provided to one or more customers as a short-term, temporary fix to a Severity Level 1 Error. While not utilized by all Itron software product lines, Hot Fix Releases are not made available to Itron customers generally but may be included in the next scheduled Service Pack for general release. ii. Support for Releases of Itron Enterprise Edition and Openway Software. This subsection applies only to Itron Enterprise Edition and OpenWay software products. Maintenance Services for Itron Enterprise Edition and OpenWay software products shall be limited to the most recent System Release and the prior System Release (and the most current Service Pack Release associated with such System Release). Customer will test and install Service Pack Releases associated with the System Release in use by Customer within 6 months of such Service Pack Releases being made available to Customer. Customer will upgrade to the latest System Release at least every twenty-four (24) to thirty-six (36) months. At Customer's request, Itron will assist with any such upgrade at its then-current hourly rates. Itron may elect to provide Maintenance Services for an unsupported Release of Software at its then-current rates for customer support. iii. Support for Releases of all Other Itron Software. This subsection applies to all Itron software other than Itron Enterprise Edition and OpenWay software products. Maintenance Services for all Itron software other than Itron Enterprise Edition and OpenWay software products shall be limited to the most recent System Release and the two prior Service Pack Releases. Customer will test and install System Releases and Service Pack Releases within 12 months of such Releases being made available to Customer. At Customer's request, Itron will assist with any such upgrade at its then-current hourly rates. Itron may elect to provide Maintenance Services for an unsupported Release of Itron software at its then-current rates for customer support. e. Interoperability. Itron makes no representation or warranty regarding the ability of the Software to interoperate with third party hardware or software other than software or hardware identified as compatible with the Software in Itron's published documentation for such Software (the "Documentation"). f. Documentation and Software Library. Itron will make an electronic copy of the Documentation available to Customer at no additional charge via physical media or download access. Itron will maintain a copy of its most recent supported version of the executable Software to be made available to Customer as necessary in the event of corrupted or inoperative Software. g. Restoring Software to Maintenance Services. If Customer declines Maintenance Services after the end of warranty or discontinues Maintenance Services for any Software, and thereafter wishes to resume Maintenance Services for the most recent Release of such Software, Customer shall, prior to receiving such Maintenance Services, notify Itron in writing of its request for Maintenance Services and pay Itron's then-current re-initiation fee. h. Exclusions. Itron shall have no obligation to Customer to the extent any Software is adversely affected by: (i) use of the Software in combination with other software, equipment or communications networks that are not referenced in the Documentation; (ii) any modification to the software or operating environment that is made other than through the fault of Itron, after the Effective Date; (iii) the use of a version of the Software that is not supported by Itron; (iv) Customer's failure to implement a Fix provided by Itron; (v) the operation or maintenance of the Software other than through the fault of Itron; (vi) viruses introduced through no fault of Itron; (vii) use of the Software other than as permitted by Itron; or (viii) Customer's failure to perform Customer responsibilities in accordance with this Agreement. Customer Responsibilities. Remote Communications. Customer will obtain, install, operate, and maintain remote communications software and equipment in a manner that will allow for remote access to the Software. Customer will make such remote access available to Itron representatives, as necessary, for remote diagnosis and troubleshooting of the Software. ii. System Configuration and Administration. Customer will ensure that its equipment, operating system, and data communications environment associated with the Software is configured, operated, and maintained in accordance with the Documentation and any applicable third party documentation. These administrative activities shall include but not be limited to: checking audit logs, clearing discovered exceptions, and performing daily, weekly, and monthly operational tasks and system responsibilities. Customer will consult with Itron prior to making changes that may affect the operation of the Software. iii. Network Administration. Customer will monitor and maintain, repair, replace and upgrade its local, and wide area network components (if any)-including network servers, network clients, network hubs, routers, modems, and other software components necessary for efficient and reliable network operations associated with the Software-to ensure continued conformance with the Documentation. In addition, Customer will administer related host names, Internet Protocol addresses, network interfaces, access, security, communications, and equipment and software version control. iv. Database Administration. Customer will administer the agreed upon database(s) associated with the Software, including hardware and software components, in accordance with the Documentation or any applicable third party documentation, which administration shall include, monitoring the database server, backing up electrical power sources, and configuring and administering of database schema, application interfaces, networking operating system, communications, and file transfer software. Customer will maintain database files (e.g., truncate, cleanup, and delete files consistent with industry standard practices)and perform regular data backup and data archiving. V. Data Review. If Itron determines that it is necessary to evaluate Customer data in order to reproduce error conditions not reproducible with Itron's standard test data sets, Customer will provide Itron with access to such data. Itron will manage such data in a secure manner while in use and delete the data from Itron systems upon completion of the investigation. Itron shall not be liable for any delay or failure to resolve the problem if access to such production data is denied to Itron. 3. Compensation and Payment a. Definitions "Annual Adjustment' means Itron's standard price increase. "Annual Fee" means the annual fee set forth on Attachment A hereto for the Software identified thereon plus the Annual Adjustment, if any. The Annual Fee for Maintenance Services to be provided for any partial Maintenance Year (i.e., for software with a Maintenance Commencement Date that falls after the beginning of the Maintenance Year) shall be prorated based on the applicable number of months Customer is to receive Maintenance Services during such Maintenance Year. "Maintenance Commencement Date" means the date for commencement of the Maintenance Services for the Software identified on Attachment A hereto. "Maintenance Yea►" means any period of 1 year during the Term beginning on the Effective Date or any anniversary thereof b. Compensation and Invoicing. As compensation for the Maintenance Services, Customer shall, in advance, pay to Itron the Annual Fee for each Maintenance Year in which it receives Maintenance Services.. Itron shall invoice Customer for Maintenance Services to be provided during the first Maintenance Year as soon as practicable following the Effective Date. For Maintenance Services provided during any subsequent Maintenance Year, including Maintenance Services for newly purchased software, Itron shall provide Customer with a renewal notice at least 100 days prior to the commencement of each Maintenance Year. Customer may discontinue Maintenance Services by providing Itron with written notice of nonrenewal no less than 30 days prior to the commencement of any subsequent Maintenance Year. Approximately 20 days prior to the commencement of any subsequent Maintenance Year, Itron shall provide Customer with an invoice for the Annual Fee payable by Customer for the forthcoming Maintenance Year. Itron may, in its discretion, invoice Customer for Maintenance Services for a product that is added during the course of any Maintenance Year as soon as such product has been added or at the beginning of the next Maintenance Year. C. Payment. Invoices will be due and payable 30 days following invoice receipt. For invoices not paid within 30 days of invoice receipt, in addition to other remedies to which Itron may be entitled, Itron may charge Customer a late fee of 1 percent per month applied against overdue amounts. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere shall be construed as an accord or satisfaction. Itron will be responsible for and pay all taxes associated with the provision of products or services by Itron generally, including taxes on Itron's income, as may required by law. As a tax exempt entity, Customer will provide Itron with a copy of its Tax Exemption Certificate upon execution of this Agreement. Customer shall pay all amounts due under this Agreement in lawful money of the United States, unless otherwise provided in Attachment A. 4. Term and Termination a. Term. Unless terminated earlier as provided herein, the term of this Agreement shall be 365 days ("Term") from the Effective Date of this Agreement. The term of this Agreement shall be eligible for renewal, but not automatically renewed, for successive one year periods. b. Termination. Either Party may terminate this Maintenance Agreement effective as of the end of any Maintenance Year by giving the other Party written notice of termination at least 60 days prior to the end of such Maintenance Year. If either Party commits a material breach of or default under this Maintenance Agreement or any agreement between the Parties related to this Maintenance Agreement, then the other Party may give such Party written notice of the breach or default (including, but not necessarily limited to, a statement of the facts relating to the breach or default, the provisions of this Maintenance Agreement that are in breach or default and the action required to cure the breach or default) and, at the notifying Party's election, this Maintenance Agreement shall terminate pursuant to this Section if the breach or default is not cured within 30 days after receipt of notice (or such later date as may be specified in the notice). The occurrence at any time with respect to a Party of any of the following constitutes an "Event of Default" with respect to such Party, and such Party shall be a "Defaulting Party": (i) the failure to make, when due, any payment required pursuant to this Agreement if such payment (with applicable interest) is not made within ten (10) business days after written notice is received by a Party (ii) any representation or warranty made by such Party herein that is false or misleading in any significant respect when made or when deemed made or repeated; (iii) the failure to schedule, deliver or take the products or services set forth in Attachments A and B to this Agreement if provided in a quality and manner prescribed in this Agreement; and (iv) default regarding the covenants and provisions of Section 9 herein regarding assignment, consolidation, merger, transfer or amalgamation of a Party's obligations of all or a part of the obligations contained herein. C. Effect of Termination. Itron shall not be obligated to provide any Maintenance Services after the end of the Term. If either Party terminates the Maintenance Agreement for a reason other than a termination for breach or default or if Itron terminates Maintenance Services for one or more Products, Customer shall be entitled to a prorated refund of the Annual Fee within 30 business days. d. End of Life /End of Support. Itron may discontinue Maintenance Services for the Software, effective as of the end of the current Maintenance Year, by giving Customer written notice of such discontinuance no less than 120 days prior to the end of such Maintenance Year. At Customer's request, Itron may elect to provide custom support for products for which Maintenance Services have been discontinued at Itron's then-current rates. e. Survival Any provision of this Maintenance Agreement that contemplates performance or observance subsequent to termination or expiration of this Maintenance Agreement shall survive termination or expiration and continue in full force and effect for the period so contemplated including, but not limited to, provisions relating to warranties and warranty disclaimers, intellectual property ownership, payment terms, confidentiality, waiver of consequential damages, and cap on liability. 5. Indemnification a. General Indemnity. If the defaulting Party is Itron, Itron shall indemnify and hold the Customer harmless from all claims and causes of action, and shall be responsible for Customers reasonable costs and expenses, including reasonable attorney's fees, incurred in the exercise of its remedies hereunder. If the defaulting Party is the Customer, unless expressly prohibited by applicable law, it shall indemnify and hold Itron harmless from all claims and causes of action, and shall be responsible for Itron's reasonable costs and expenses, including reasonable attorney's fees incurred in the exercise of its remedies hereunder. b. Right to Defend. As a condition to Itron's indemnity obligations under this Agreement, Customer will provide Itron with prompt written notice of the claim, permit Itron to control the defense, settlement, adjustment or compromise of the claim and provide Itron with reasonable assistance in connection with such defense. Customer may employ counsel at its own expense to assist it with respect to any such claim. 6. Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; (ii) it has, and shall maintain, all regulatory authorizations necessary for it to legally perform its obligations under this Agreement and any other documentation relating to this Agreement to which it is a party; (iii) the execution, delivery and performance of this Agreement and any other documentation relating to this Agreement to which it is a party are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to it; (iv) this Agreement and each other document executed and delivered in accordance with this Agreement constitutes its legally valid and binding obligation enforceable against it in accordance with its terms; (v) there are no bankruptcy proceedings pending or being contemplated by it or, to its knowledge, threatened against it; (vi) there is not pending or, to its knowledge, threatened against it or any of its affiliates any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement or any other document relating to this Agreement to which it is a party; and (vii) it is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this Agreement. 7. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS HEREIN, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR COVER OR FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL (INCLUDING LOSS OR CORRUPTION OF DATA OR LOSS OF REVENUE, SAVINGS OR PROFITS) OR EXEMPLARY DAMAGES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ITRON'S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS MAINTENANCE AGREEMENT, EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS HEREIN, THE AGGREGATE LIABILITY OF EACH PARTY AND ITS AFFILIATES AND THEIR OFFICERS, DIRECTORS, EMPLOYEES OR OTHER REPRESENTATIVES, ARISING IN ANY WAY IN CONNECTION WITH THIS MAINTENANCE AGREEMENT-WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY OR OTHERWISE-SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THIS MAINTENANCE AGREEMENT DURING THE MAINTENANCE YEAR IN WHICH THE CAUSE OF ACTION GIVING RISE TO THE LIABILITY AROSE. 8. Force Maieure. "Force Majeure" means an event or circumstance which prevents one Party from performing its obligations under this transaction, which is not within the reasonable control of, or the result of the negligence of, the claiming Party, and which, by the exercise of due diligence, the claiming Party is unable to overcome or avoid or cause to be avoided. Neither economic harm to a Party nor the financial condition of a Party shall constitute Force Majeure hereunder. In the event that either of the Parties should be delayed in, or prevented from performing or carrying out this Agreement, covenants and obligations under this Agreement by reason of Force Majeure, then, during the pendency of such Force Majeure but for no longer period, the obligations of the Party affected by the event, shall be suspended to the extent required. Neither Party shall be liable to the other Party for, or on account of, any loss, damage, injury or expense (including consequential damages) resulting from, or arising out of any such delay or prevention from performing; provided, however, the pendency of such Force Majeure will be of no greater scope and of no longer duration than is reasonably required by the Force Majeure, and the Party suffering such delay or prevention shall use its reasonable best efforts to provide the other Party with written notice within twenty four (24) hours after the occurrence of such event, and shall take all commercially reasonable efforts to mitigate the effects of such event of Force Majeure and to remove the cause(s) thereof. Neither Party shall be required by the forgoing provisions to settle a strike affecting it except when, according to its best judgment, such a settlement seems advisable. 9. Assignment. Neither Party will assign this Maintenance Agreement, directly or indirectly, without the prior written consent of an authorized executive officer of the other Party, with such consent not to be unreasonably withheld, provided that either Party may assign all or any part of this Maintenance Agreement to its successor in a merger, consolidation or comparable transaction or to the purchaser of all or substantially all of its assets (or the assets associated with a particular line of business) so long as such successor or purchaser agrees in writing to comply with the terms and conditions of this Agreement and provided that the successor or purchaser has a comparable credit rating with Dun and Bradstreet, or other similar rating agency, and provided further that Itron may assign this Maintenance Agreement to an affiliate, including to a parent, subsidiary or sister entity, while remaining liable for performance of this Agreement. 10. Waiver. Delay by any Party in enforcing its rights under this Agreement shall not be deemed a waiver of such rights. The failure of a Party to this Agreement to insist, on any occasion, upon strict performance of any provision of this Agreement will not be considered to waive the obligations, rights, or duties imposed upon the Parties. No waiver of any breach or violation of any term of this Agreement shall be deemed or construed to constitute a waiver of any other breach or violation, whether concurrent or subsequent, and whether of the same or of a different type of breach or violation. 11. Audit. Each Party shall have the right to audit and make copies of the books, records and computations pertaining to this Agreement in the possession of the other Party. Each Party shall retain such books, records, documents and other evidence pertaining to this Agreement during the contract period and for five (5) years thereafter; except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, each Party shall require all subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this Agreement, and to allow the other Party similar access to those documents. All books and records will be made available within a fifty (50) mile radius of the office(s) of the Party in possession. The cost of such audits will be borne by the auditing Party unless the audit reveals an overcharge of 3% or greater by Itron, in which case Itron shall be responsible for the reasonable costs and reasonable travel expenses of the audit. Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 12. Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only by a writing signed by an authorized representative of each Party and declared to be an amendment hereto. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision. No waiver granted under this Agreement as to any one provision herein shall constitute a subsequent waiver of such provision or of any other provision herein, nor shall it constitute the waiver of any performance other than the actual performance specifically waived. 13. Governing Law; Dispute Resolution This Agreement and all rights and obligations of the Parties hereunder are subject to all applicable State and Federal laws and all applicable duly promulgated orders and regulations and duly authorized actions taken by the executive, legislative or judicial branches of government, or any of their respective agencies, city councils, public utility boards, departments, authorities or other instrumentalities having jurisdiction. This Agreement was executed in the State of Texas and must in all respects be governed by, interpreted, construed, and shall be exclusively enforced in accordance with the laws of the State of Texas. It is agreed that the provisions and obligations of this Agreement are performable in the City of Denton, Denton County, Texas. Should either Party to this Agreement commence legal proceedings against the other to enforce the terms and provisions of this Agreement, the Party who does not prevail in the proceeding(s) shall pay a reasonable amount of attorney's fees and expenses (including, but not limited to expert witness fees and deposition expenses) incurred by the prevailing Party. Any dispute, need of interpretation, claim, counterclaim, demand, cause of action, or other controversy arising out of or relating to this Agreement or the relationship established by this Agreement, any provision hereof, the alleged breach thereof, or in any way relating to the subject matter of this Agreement, involving the Parties and/or their respective representatives (for purposes of this Section 13 only, collectively, the "Claims"), even though some or all of such Claims allegedly are extra-contractual in nature, whether such Claims found in contract, tort, or otherwise, at law or in equity, under state or federal law, whether provided by statute or the common law, for damages or any other relief, shall, if mutually agreed to by the Parties at the time of the Claims, be resolved by binding arbitration in accordance with this Section 13. Arbitration shall be conducted in accordance with the rules of arbitration of the Federal Arbitration Act and, to the extent an issue is not addressed by the federal law on arbitration, by the Commercial Arbitration Rules of the American Arbitration Association ("AAA") as the same may be in effect from time to time to the extent not in conflict with this Section 13 and shall be subject to the Federal Arbitration Act. Each Party shall appoint an arbitrator, within 30 days of the notification of a Party's intent to proceed with arbitration. Within 30 days of their appointment, the two party-appointed arbitrators shall appoint a third arbitrator, who shall be neutral and shall have at least eight years' professional experience in electrical energy-related transactions; shall not have been previously employed by either Party; and shall not have a direct or indirect interest in either Party or in the subject matter of the arbitration. If either Party fails to designate an arbitrator within the time specified or the two Party appointed arbitrators fail to designate a third arbitrator within 30 days of their appointment, the remaining arbitrator(s) shall be appointed by the AAA. Each Party shall pay for the expenses incurred by its designated arbitrator and the costs of the third, neutral arbitrator shall be divided between the parties. The validity, construction, and interpretation of this agreement to arbitrate, and all procedural aspects of the arbitration conducted pursuant hereto shall be decided by the arbitrators. In deciding the substance of the Parties' Claims, the arbitrators shall refer to the governing law. Only damages allowed pursuant to this Agreement may be awarded and, without limitation of the foregoing, the arbitrators shall have no authority to award damages contravening in any way the limitation of liability agreed to by the parties pursuant to this Agreement. It is understood and agreed that judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. It is agreed that the arbitrators shall not have the authority to make rulings of law other than rulings as to the interpretation of this Agreement. 14. Relationship of the Parties. Nothing in this Agreement is intended to create a partnership, joint venture or other joint legal entity making any Party jointly or severally liable for the acts of the other Party. Each Party shall be solely liable for the payment of all wages, taxes, and other costs related to the employment of persons by that Party to perform under this Agreement, including all federal, state, and local income, social security, payroll and employment taxes and statutorily mandated workers' compensation coverage. None of the persons employed by either Party shall be considered employees of the other Party for any purpose; nor shall either Party represent to any person that such persons are or shall become employees of the other Party. 15. Severability/Material Adverse Change. If the federal government or the State government of Texas adopts, enacts, or otherwise imposes a new law, rule or regulation which either makes a Party's performance under this Agreement unlawful or makes this Agreement unenforceable, and such governmental action does not constitute a Force Majeure event under Section 8 of this Agreement, (1) the remainder of the terms, conditions, covenants restrictions and other provisions of this Agreement shall remain in full force and effect unless such an interpretation would materially alter the rights and privileges of any Party hereto; and (ii) the Parties shall negotiate in good faith to amend the terms of this Agreement and to determine the appropriate changes, if any, so that the Party affected by such change in law or regulation is able to lawfully perform the entirety of its obligations without materially adversely affecting the financial benefit hereunder to the other Party. 16. Headings and Captions. Section headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. Whenever used herein the singular number shall include the plural, the plural shall include the singular, and the use of any gender shall include all genders. 17. Counterparts. This Agreement may be executed in any number of counterparts, which may be executed at different times. Each counterpart, including applicable individual attachments shall constitute an original but all such counterparts together shall constitute one and the same instrument. 18. No Third-Partv Beneficiaries. This Agreement is neither intended to nor does it create rights, remedies, or benefits of any character whatsoever in favor of any persons, corporations, associations, or entities other than the Parties, and the obligations herein undertaken and assumed are solely for the use and benefit of the Parties, their successors-in-interest and, where permitted, their assigns. 19. Confidentiality. The Parties consider the pricing and information which may be designated by either Party as confidential including, and without limitation the other terms of this Agreement to be sensitive commercial information, which is proprietary and is Public Power Competitive Information under applicable Texas law. Accordingly, the Parties shall not use, reproduce, or disclose the confidential information or the terms of this Agreement to any unaffiliated third party unless and to the extent required to make such disclosure by action of a court or other government authority or applicable law, including any requirement to comply with any applicable exchange, control area or independent system operator rule, provided, however, each Party shall provide the other Party with prompt notice of the requirement to disclose confidential information in order to allow the other Party to seek an appropriate protective order or other remedy. The Parties shall only disclose the terms and conditions of this Agreement and other confidential information received from the other Party to those of its affiliates, employees, consultants, authorized representatives, and attorneys having a "need to know" in order to carry out their functions in connection with the Agreement. The obligations in this Section will not apply to information that is: (i) publicly known; (ii) already known to the recipient; (iii) lawfully disclosed by a third party; (iv) independently developed; or (v) disclosed pursuant to a legal requirement or order. Notwithstanding the foregoing, Itron acknowledges that Customer is a public entity and is required to comply with the provisions of any applicable open meeting and public records disclosure laws regarding disclosure of the pricing terms of this Agreement; provided, however, Customer shall use good faith and reasonable best efforts to ensure that all confidential information is kept confidential to the extent possible in accordance with such laws and the exemptions to disclosure therein. The Parties shall be entitled to all remedies available at law or in equity to enforce, or seek relief in connection with, the non-disclosure obligations set forth in this Section 19; provided, that a breach of this Section 19 shall not give rise to a right to suspend or terminate this Agreement. Each Party will cause its Representatives to comply with the non-disclosure obligations set forth in this Section 19. 20. Intellectual Property. Between Itron and Customer, all patents, copyrights, mask works, trade secrets, trademarks and other proprietary rights in or related to any product or software provided in connection with the Maintenance Services are and will remain the exclusive property of Itron. Any modification or improvement to an Itron product or deliverable that is based on Customer's feedback shall be the exclusive property of Itron. Itron will not take any action that jeopardizes Itron's proprietary rights nor will it acquire any right in any such product, software or deliverable or Itron's confidential information other than rights granted in this Maintenance Agreement. 21. Entire Agreement. This Agreement, including all attachments made part hereof, is the Parties' complete and exclusive statement of the terms of the Agreement and the matters contemplated herein. All prior written and oral understandings, offers or other communications of every kind pertaining to the subject matter of this Agreement are hereby superseded. It is understood and agreed that this Agreement contains the entire Agreement between the Parties and supersedes any and all prior agreements, arrangements or understandings between the parties relating to the subject matter. This Agreement cannot be changed or terminated orally and no written modification of this Agreement shall be effective unless executed and signed by both Parties. 22. No Solicitation. For 18 months following the termination of this Agreement, Customer will not solicit any employee or consultant to leave the employ of Itron, provided that the foregoing shall not be construed to prohibit mass media advertising not specifically directed towards employees or consultants of Itron. 23. Publicity. Unless otherwise provided in a separate confidentiality agreement between the Parties, each Party may issue a press release following the execution of this Agreement, subject to the other Party's advance written approval, which shall not be unreasonably withheld. Each Party hereby consents to the other Party's use of its name, URL and logo on its website and in its customer and partner lists for corporate and financial presentations. 24. Notices. All notices, requests, statements or payments shall be made as specified below. Notices required to be in writing shall be delivered by letter, electronic media, facsimile or other documentary form. Notice shall be deemed to have been received by the close of the day on which it was transmitted or hand delivered (unless transmitted or hand delivered after the close of recipient's business or on a day on which recipient is not open for business, in which case it shall be deemed received at the close of the next day on which recipient is open for business). Notice by overnight mail or overnight courier shall be deemed to have been received one (1) day after it was sent (unless delivered after the close of recipient's business or on a day on which recipient is not open for business, in which case it shall be deemed received on the next day on which recipient is open for business). A Party may change its addresses by providing notice of same in accordance herewith: Itron: Attn: General Counsel Customer: Itron, Inc. Denton Municipal Electric 2111 North Molter Road 1659 Spencer Rd Liberty Lake, WA 99019 Denton, TX 76205 Phone No.: Fax No.: (940) 349-7334 Fax No.: Phone No.: (940) 349-8487 Attn: Phil Williams, General Manager INVOICES: Denton Municipal Electric 1659 Spencer Rd Denton, TX 76205 Phone No.: (940) 349-7642 Attn: J.R. Richardson, Metering Superintendent Email: JR.Richardson@cityofdenton.com [Signature Page Follows] Agreed to and accepted by: THE CITY OF DENTON, TEXAS A TEXAS MUNICIPAL CORPORATION Itron, Inc. Signature: Signature: Print name: Steven M. Hefmbrecht Print name: Sr. Vice President & CFO Itron, Inc. Title: Title: Date: Date: 1 Address: Itron, Inc. Attention: General Counsel 2111 North Molter Road ATTEST: Liberty Lake, WA 99019 JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: U, A C1-1 ~ '9 v ~ \j I U v 7- [Signature Page to Maintenance Agreement] Billing Contact Information Name: Address: Phone: Email: Renewal Notice Contact Information Name: Address: Phone: Email: Purchase Order Number: [Signature Page to Maintenance Agreement] Attachment A Product Quantity Annual Maintenance Maintenance Fee Commencement Date Software First day of the month following Itron Enterprise Edition Meter Up to $10,000.00 shipment or Data Management (IEE MDM), 45,000 electronic delivery by Mass Market Meters Itron IEE MDM First day of the AMI Interval Data Billing Module Up to $3,000.00 month following 45,000 shipment or Meters electronic delivery by Itron Total Annual Maintenance $13,000.00 c N col E C 7 O O E o .C U U co a~ Y c 0 U a) o J W O 7 > -C U) W U) O~ O c > p w : t 0 m o m> N U Z g°6U Q C N•, o6 2 c Fn C) V (0 aZi~ O n a)~ i VI O o :3 m ~m C) O Z CL O .0 U) N U o C (d O m m O T m = F- =2W u a~tB (D 25 0 0~ J2 mlz-U a) a o o~ ow> (U) o (~a ( E o U) a a ~ U m n 0 c a`~ m tt U c (D CI- o o a) O m U) N m otS = O.. 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C c4 0 a) 0 "D U y =3 o 5 n Q o O U ` U 'O O_ S 0-0 0 -0 CL (n a) oZo= CL ESQ a) cu (D - 3y W X o E C M U) t a) W O 0 0 (0 E w 0)-c QO c W CL 0 2 4:: c), G. 0- d O G N O D E N U) U N fC6 U) = a) C o L. 2 N C O m a y> aOEL aam SOFTWARE LICENSE AND SERVICES AGREEMENT This Itron Software License and Services Agreement (the "Agreement") is entered into as of the last date of execution on the signature page hereto (the "Effective Date") by and between Itron, Inc. ("Itron") and the City of Denton, Texas Denton Municipal Electric ("Customer'). Itron and Customer may each be referred to as a "Party' and together as the "Parties." The Parties agree as follows: Software Terms a. Definitions. "Delivery' with respect to Software, means that Itron has either made the Software available to Customer via electronic means or has provided the Software to a carrier on physical media for delivery to Customer. "Documentation" means all printed or electronic materials published or otherwise that are provided to Customer and that describe or relate to the functional, operational or performance capabilities of the Software. "Mete" means a device used for measuring the amount of electricity, gas or water used at a residence or business or by a machine. If a single Meter serves more than one residence, business or machine, it will count as the number of residences, businesses or machines being served (e.g., where a single Meter serves 10 residences, it will count as 10 Meters). "Object Code" means the binary, machine-readable version of the Software. "Production Environment" means a single instance of the Software used in an environment other than a Test Environment. "Software" means software identified on Attachment A that is owned by Itron and any modifications, corrections, improvements or enhancements thereto provided by Itron. "Source Code" means human-readable computer programming code, associated procedural code and related documentation. "Specifications" means the applicable published Itron functional specifications for an item of Software. "Test Environment' means a single instance of the Software used solely for test purposes. Such installation can only be used to verify the correct installation, operation, and integration of the Software and/or components. "Use" means the ability to run, execute, display and, subject to the restrictions described below, duplicate and distribute internally. "Warranty Period," with respect to a particular item of Software shall be 180 days from the date of Delivery. 2. Professional Services Terms a. Definitions. "Change Order" means a written confirmation of a change in the Professional Services, Deliverables or cost thereof that is executed by both Parties. "Deliverable" means any software, reports, results, studies or other documentation identified as a "Deliverable" to be provided by Itron in a SOW. "Professional Services" means the services to be provided by Itron pursuant to a SOW. "SOW' means a written statement of work describing the activities, tasks and responsibilities of Itron and Customer that, at the time of execution, is attached hereto as Attachment B or that, subsequent to execution, references this Agreement and is executed by authorized representatives of the Parties. 3. License Grant. Subject to the terms of this Agreement and for the license fee set forth on Attachment A, Itron grants to Customer a nonexclusive, nontransferable, perpetual Object Code license to Use the Software and Documentation for its internal business purposes only in connection with the number of Meters set forth in Attachment A. a. Restrictions. As a condition to the foregoing license grant, Customer shall not (i) violate any restriction set forth on Attachment A, (ii) modify or create any derivative work from the Software, (iii) include the Software in any other software, (iv) use the Software to provide processing services to third parties or on a service bureau basis, (v) reverse assemble, decompile, reverse engineer or otherwise attempt to derive Source Code (of the underlying ideas, algorithms, structure or organization) from Software, or (vi) use the Software to process business information concerning customers derived through merger, asset acquisition or other entity combination. Except as expressly permitted in this Agreement, (i) the Software may not be installed on a computer that is not part of the Customer's computer network, (ii) Customer may not copy the Software other than to make one machine readable copy for disaster recovery or archival purposes, and (iii) installation of the Software shall be limited to one Production Environment and one Test Environment. Customer may only make copies of Documentation as reasonably necessary for the use contemplated herein. The Software and Documentation shall be considered the confidential information of Itron and, as such, shall be subject to the confidentiality provisions of this Agreement. 4. Invoicing. Itron will invoice Customer for the Software upon Delivery. 5. Limited Software Warranty. a. Warranty and Remedy. For the Warranty Period, Itron warrants to Customer that the Software will perform substantially in accordance with the Specifications. Itron does not warrant that the Software will operate uninterrupted or error-free. Itron's sole obligation and Customer's exclusive remedy in connection with the breach of a warranty provided under this Section shall be for Itron to repair or replace the non- conforming Software. If Itron, in its sole discretion, is unable to repair or replace non-conforming Software, Itron will refund to Customer the amount paid for such Software. Software that is repaired or replaced pursuant to this Section will be warranted for the remainder of the original warranty period or 30 (thirty) days, whichever is longer. Customer's license to Software for which it has received a refund hereunder shall terminate upon its receipt of a refund. b. Exclusions. The warranty provided in this Section shall not apply to the extent that non-compliance relates to or is the result of (i) use of the Software in combination with software, equipment or communications networks not provided by Itron, (ii) a change to the Software's operating environment not made or authorized by Itron, (iii) Customer's failure to install any correction or enhancement provided by Itron, (iv) viruses introduced through no fault of Itron, (v) any use of the Software not authorized by this Agreement. The warranty provided in this Section is valid only if Customer has complied with the terms of this Agreement (including paying the applicable Software license fees) and shall be void to the extent of any modification to the Software not authorized by Itron. c. Other Software Provisions. Customer shall not, directly or indirectly, export or transmit the Software to any country to which such export or transmission is prohibited by any applicable regulation or statute. The Parties agree that Software provided under this Agreement shall be deemed to be "goods" within the meaning of Article 2 of the Uniform Commercial Code, except when such a practice would cause an unreasonable result. The Parties agree that the Uniform Computer Information Transaction Act (or a version thereof or substantially similar law) shall not govern this Agreement. 6. Audit. a. Generally. Each Party shall have the right to audit and make copies of the books, records and computations pertaining to this Agreement in the possession of the other Party. Each Party shall retain such books, records, documents and other evidence pertaining to this Agreement during the contract period and for five (5) years thereafter; except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, each Party shall require all subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this Agreement, and to allow the other Party similar access to those documents. All books and records will be made available within a fifty (50) mile radius of the office(s) of the Party in possession. The cost of such audits shall be borne by the auditing Party unless the audit reveals an overcharge of 3% or greater by Itron, in which case Itron will be responsible for the reasonable costs and reasonable travel expenses of the audit. Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. b. License. Customer shall maintain accurate and detailed records as necessary to verify compliance with the license terms of this Agreement. Itron may audit these records to verify compliance at any time during Customer's regular business hours after giving notice 10 business days in advance of the audit. Except as described below, Itron will bear all costs and expenses associated with the exercise of its audit rights. Any errors in payments identified will be corrected by Customer by appropriate adjustment. In the event of an underpayment of more than 5 percent, Customer will reimburse Itron the amount of the underpayment, reasonable costs associated with the audit, and interest on the overdue amount at the maximum allowable interest rate from the date the obligation accrued. 7. Purchase of Professional Services; License. During the term of this Agreement, Itron will make commercially reasonable efforts to provide to Customer the Professional Services and Deliverables, if any, described in the applicable SOW within the time periods set forth in such SOW. Changes to the Professional Services or Deliverables may only be made through a Change Order. Itron hereby grants to Customer a non-exclusive, perpetual license to use the Deliverables solely for Customer's internal purposes. a. Fees and Expenses. Customer agrees to pay for Professional Services in the manner set forth in the applicable SOW (e.g., on a time and materials basis or on a fixed-fee basis) and at the rates set forth in the applicable SOW. Itron reserves the right to adjust rates for Professional Services performed on a time-and-materials basis no more than once each year. Customer shall also reimburse Itron for reasonable and documented travel, lodging and related expenses incurred in direct connection with the Professional Services. b. Invoicing. Professional Services will be performed either on a time-and-materials basis or a fixed-fee basis, as set forth in the applicable SOW. Professional Services performed on a time and materials basis will be invoiced at the end of the calendar month in which they are performed. Professional Services that are performed on a fixed fee basis will be invoiced as set forth on the applicable SOW or, if not set forth on a SOW, upon completion. C. Limited Professional Services Warranty. Itron warrants to Customer that it shall perform the Professional Services with reasonable care and in a diligent and competent manner. Itron's sole obligation and Customer's exclusive remedy in connection with a breach of the foregoing warranty shall be to correct or re- perform the non-conforming Professional Services until the breach is cured. If Itron, in its sole discretion, is unable to correct or re- perform non-conforming Professional Services, its sole obligation will be to refund to Customer the amount paid for such Professional Services within 30 business days after the receipt of Customer's invoice. Customer must report any deficiencies with regard to the Professional Services rendered by Itron in writing within 60 (sixty) days of performance to receive the warranty remedies described herein. d. Access to Facilities and Personnel. Customer agrees to provide Itron with access to its facilities and personnel as reasonably required for Itron to provide the Professional Services and Deliverables. All employees and representatives of Itron that perform Professional Services on Customer's premises shall comply with all applicable guidelines pertaining to employee conduct, including Customer safety procedures and policies, provided to Itron by Customer. Neither Party shall require releases or waivers of any personal rights from representatives of the other in connection with visits to its premises, and the Parties agree not to plead any such releases or waivers in any action or proceeding. e. Compliance with Laws. Itron will comply with all federal, state, and municipal laws, ordinances, regulations and orders and all amendments thereto with respect to its performance of the Professional Services. Itron will provide Customer with such documents and other supporting materials as Customer may reasonably request to evidence Itron's continuing compliance with the provisions in this Section. f. Insurance. During the term of this Agreement, Itron will maintain the levels of insurance as set forth in Attachment C. 8. Payment Terms and Taxes. Invoices will be due and payable 30 days following invoice receipt. For invoices not paid within 30 days of invoice receipt, in addition to other remedies to which Itron may be entitled, Itron may charge Customer a late fee of 1 percent per month applied against overdue amounts. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere shall be construed as an accord or satisfaction. Itron will be responsible for and pay all taxes associated with the provision of products or services by Itron generally, including taxes on Itron's income, as may required by law. As a tax exempt entity, Customer will provide Itron with a copy of its Tax Exemption Certificate upon execution of this Agreement. Customer shall pay all amounts due under this Agreement in lawful money of the United States, unless otherwise provided in Attachment A. 9. Changes. Changes to the products or services ordered by Customer pursuant to this Agreement, including the purchase of additional quantities or entirely new products or services, may be made at Itron's then-current pricing by purchase order or Change Order (in a form acceptable to Itron), provided that any such purchase order must first be accepted by Itron. 10. Confidentiality. The Parties consider the pricing and other information which may be designated by either Party as confidential including, and without limitation, the other terms of this Agreement, to be sensitive commercial information, which is proprietary and is Public Power Competitive Information under applicable Texas law. Accordingly, the Parties shall not use, reproduce, or disclose the confidential information or the terms of this Agreement to any unaffiliated third party unless and to the extent required to make such disclosure by action of a court or other government authority or applicable law, including any requirement to comply with any applicable exchange, control area or independent system operator rule, provided, however, each Party shall provide the other Party with prompt notice of the requirement to disclose confidential information in order to allow the other Party to seek an appropriate protective order or other remedy. The Parties shall only disclose the terms and conditions of this Agreement and other confidential information received from the other Party to those of its affiliates, employees, consultants, authorized representatives, and attorneys having a "need to know" in order to carry out their functions in connection with the Agreement. The obligations in this Section will not apply to information that is: (i) publicly known; (ii) already known to the recipient; (iii) lawfully disclosed by a third party; (iv) independently developed; or (v) disclosed pursuant to a legal requirement or order Notwithstanding the foregoing, Itron acknowledges that Customer is a public entity and is required to comply with the provisions of any applicable open meeting and public records disclosure laws regarding disclosure of the pricing terms of this Agreement; provided, however, Customer shall use good faith and reasonable best efforts to ensure that all confidential information is kept confidential to the extent possible in accordance with such laws and the exemptions to disclosure therein. The Parties shall be entitled to all remedies available at law or in equity to enforce, or seek relief in connection with, the non-disclosure obligations set forth in this Section 10; provided, that a breach of this Section 10 shall not give rise to a right to suspend or terminate this Agreement. Each Party will cause its Representatives to comply with the non-disclosure obligations set forth in this Section 10. 11. Intellectual Property Ownership. Between Itron and Customer, all patents, copyrights, mask works, trade secrets, trademarks and other proprietary rights in or related to any product or software provided by Itron pursuant to this Agreement are and will remain the exclusive property of Itron. Any modification or improvement to an Itron product or deliverable that is based on Customer's feedback shall be the exclusive property of 3 Itron. Customer will not take any action that jeopardizes Itron's proprietary rights nor will it acquire any right in any such product, software or deliverable or Itron's confidential information other than rights granted in this Agreement. 12. Indemnification a. General Indemnity. If the defaulting Party is Itron, Itron shall indemnify and hold the Customer harmless from all claims and causes of action, and shall be responsible for Customer's reasonable costs and expenses, including reasonable attorney's fees, incurred in the exercise of its remedies hereunder. If the defaulting Party is the Customer, unless expressly prohibited by applicable law, it shall indemnify and hold Itron harmless from all claims and causes of action, and shall be responsible for Itron's reasonable costs and expenses, including reasonable attorney's fees incurred in the exercise of its remedies hereunder. b. Itron's Indemnification for Third-Party Claims. Itron shall indemnify, hold harmless, and defend Customer and its affiliates and their respective officers, directors, employees, agents, contractors, subcontractors, invitees, successors, representatives and permitted assigns ("Customer's Indemnitees") from and against any and all claims, liabilities, costs, losses, damages, expenses (including reasonable attorney and expert fees) arising out of unaffiliated third parties' claims for injury or the death of any person, and physical damage to tangible property (collectively and individually "Damages") to the extent that the action is caused by Itron's gross negligence or intentional torts. Itron will, at its own expense, defend any claim or action brought against Customer by an unaffiliated third party to the extent that the action is based upon a claim that any product manufactured, software licensed or service provided by Itron hereunder directly infringes any U.S. patent (issued as of the Effective Date) or any copyright or trademark and Itron will pay those costs and damages awarded against Customer (or settled) in any such action that are specifically attributable to such claim. The foregoing indemnity does not apply to products not manufactured by Itron or software licensed by third parties. c. Customer's Indemnification for Third-Party Claims. Customer shall indemnify, to the extent provided by applicable law, hold harmless, and defend Itron and its affiliates and their respective officers, directors, employees, agents, contractors, subcontractors, invitees, successors, representatives and permitted assigns ("Itron's Indemnitees") from and against any and all claims, liabilities, costs, losses, damages, expenses (including reasonable attorney and expert fees), and/or penalties or fines imposed by government authorities, in any action or proceeding between Itron and a third party for damage to property of unaffiliated third parties, injury to or the death of any person (collectively and individually "Damages"), to the extent such Damages are directly caused by the Customer and/or its officers, directors, employees, agents, contractors, subcontractors or invitees to the extent that the action is caused by Customer's gross negligence or intentional torts. d. Conditions to Infringement Indemnity. Itron's infringement indemnity obligations under this Section are conditioned on Customer's agreement that if the applicable product or service becomes, or in Itron's opinion is likely to become, the subject of such a claim, Customer will permit Itron, at Itron's option and expense, either to procure the right for Customer to continue using the affected product or service or to replace or modify the same so that it becomes non-infringing. Such replacements or modifications will be functionally equivalent to the replaced product or service. If the foregoing alternatives are not available on terms that are reasonable in Itron's judgment, Itron shall have the right to require Customer to cease using the affected product or service in which case Itron will refund to Customer the depreciated value of the affected product or service. e. Exclusions. Itron shall have no obligation under this Agreement to the extent any claim of infringement or misappropriation results from: (i) use of a product or service, other than as permitted under this Agreement or as intended by Itron, if the infringement would not have occurred but for such use; (ii) use of any product or service in combination with any other product, equipment, software or data, if the infringement would not have occurred but for such combination; (iii) any use of any release of a software or any firmware other than the most current release made available to Customer, (iv) any claim based on Customer's use of a product after Itron has informed Customer of modifications or changes to the product required to avoid such claims and offered to implement those modification or changes, if such claim would have been avoided or mitigated by the implementation of Itron's suggestions, (v) any modification to a product made by a person other than Itron or an authorized representative of Itron, or (vi) compliance by Itron with specifications or instructions supplied by Customer. Itron shall not be liable hereunder for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer. f. Right to Defend. As a condition to Itron's indemnity obligations under this Agreement, Customer will provide Itron with prompt written notice of the claim, permit Itron to control the defense, settlement, adjustment or compromise of the claim and provide Itron with reasonable assistance in connection with such defense. Customer may employ counsel at its own expense to assist it with respect to any such claim. g. Indemnity Disclaimer THIS SECTION CONSTITUTES A PARTY'S SOLE AND EXCLUSIVE OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST THE OTHER PARTY. 13. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ITRON DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OR REPRESENTATIONS INCLUDING, WITHOUT LIMITATION, (1) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT AND (III) 4 WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. 14. Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; (ii) it has, and shall maintain, all regulatory authorizations necessary for it to legally perform its obligations under this Agreement and any other documentation relating to this Agreement to which it is a party; (iii) the execution, delivery and performance of this Agreement and any other documentation relating to this Agreement to which it is a party are within its powers, have been duly authorized by all necessary action and do not violate, to the best of its knowledge, any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to it; (iv) this Agreement and each other document executed and delivered in accordance with this Agreement constitutes its legally valid and binding obligation enforceable against it in accordance with its terms; (v) there are no bankruptcy proceedings pending or being contemplated by it or, to its knowledge, threatened against it; (vi) there is not pending or, to its knowledge, threatened against it or any of its affiliates any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement or any other document relating to this Agreement to which it is a party; and (vii) it is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this Agreement. 15. WAIVER OF CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS HEREIN, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR COVER OR FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL (INCLUDING LOSS OR CORRUPTION OF DATA OR LOSS OF REVENUE, SAVINGS OR PROFITS) OR EXEMPLARY DAMAGES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ITRON'S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. 16. CAP ON LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR (1) ITRON'S INDEMNIFICATION OBLIGATIONS HEREIN, AND (11) A BREACH BY CUSTOMER OF (a) ANY INTELLECTUAL PROPERTY RIGHT OF ITRON, OR (b) ANY LICENSE GRANTED BY ITRON HEREUNDER, THE AGGREGATE LIABILITY OF EACH PARTY AND ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES OR OTHER REPRESENTATIVES, ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT-WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY OR OTHERWISE- SHALL NOT EXCEED THE TOTAL AMOUNT PAID HEREUNDER. ITRON'S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. 17. Term and Termination a. Term of Agreement. Unless terminated earlier as provided herein, the term of this Agreement shall be 365 days from the Effective Date of this Agreement. The term of this Agreement shall be eligible for renewal, but not automatically renewed, for successive one year periods. Notwithstanding the foregoing, the term of any license provided by Itron hereunder shall be as set forth in the provision granting such license. b. Termination for Convenience Customer may terminate this Agreement without cause, in whole or in part, at any time prior to its expiration by sending Itron written notice at least 30 (thirty) days prior to such termination. In the event of such a termination, Customer shall be obligated to (i) pay any Software license fees that remain unpaid at the time of termination (it being understood that Customer's license to the Software shall not be terminated by any such termination for convenience), and (ii) pay the fees due in respect of the Professional Services rendered prior to such notice plus the reasonable costs associated with winding down the Professional Services, provided that: (A) the Itron has taken reasonable steps to mitigate such costs; and (B) such costs do not exceed the price that was to paid for such Professional Services hereunder. Customer shall not be liable for any lost opportunities or anticipated profits based upon work not yet performed or goods not delivered or for any indirect, special, or consequential losses, relating to such termination. c. Termination for Cause. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings; (ii) breaches its obligations related to the other Party's confidential information; or (iii) commits a material breach of this Agreement that remains uncured for 30 days following delivery of written notice of such breach (including, but not necessarily limited to, a statement of the facts relating to the breach or default, the provisions of this Agreement that are in breach or default and the action required to cure the breach or default). The occurrence at any time with respect to a Party of any of the following constitutes an "Event of Default" with respect to such Party, and such Party shall be a "Defaulting Party": (i) the failure to make, when due, any payment required pursuant to this Agreement if such payment (with applicable interest) is not made within ten (10) business days after written notice is received by the other Party; and (ii) any representation or warranty made by such Party herein that is false or misleading in any significant respect 5 when made or when deemed made or repeated; (iii) the failure to schedule, deliver or take the products or services set forth in Attachments A and B to this Agreement if provided in a quality and manner prescribed in this Agreement; and (iv) default regarding the covenants and provisions of Section 27 herein regarding assignment, consolidation, merger, transfer or amalgamation of a Party's obligations of all or a part of the obligations contained herein d. Obligations Upon Termination for Cause. Upon a termination by Itron for cause, Customer's license to any Software and right to receive maintenance and support for such Software shall immediately terminate and Customer shall (i) delete any Software from all of its computers, (ii) immediately deliver to Itron or destroy all copies of such Software and any related Documentation and (iii) certify in writing to Itron within 10 days of any such termination that, to the best of Customer's knowledge, Customer has complied with this Section. e. Survival Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement shall survive termination or expiration and continue in full force and effect for the period so contemplated including, but not limited to, provisions relating to warranties and warranty disclaimers, intellectual property ownership, payment terms, confidentiality, waiver of consequential damages, and cap on liability. 18. Miscellaneous. a. Entire Agreement. This Agreement, including all attachments made part hereof, is the Parties' complete and exclusive statement of the terms of the Agreement and the matters contemplated herein. All prior written and oral understandings, offers or other communications of every kind pertaining to the subject matter of this Agreement are hereby superseded. It is understood and agreed that this Agreement contains the entire Agreement between the Parties and supersedes any and all prior agreements, arrangements or understandings between the parties relating to the subject matter. This Agreement cannot be changed or terminated orally and no written modification of this Agreement shall be effective unless executed and signed by both Parties. b. Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only by a writing signed by an authorized representative of each Party and declared to be an amendment hereto. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision. No waiver granted under this Agreement as to any one provision herein shall constitute a subsequent waiver of such provision or of any other provision herein, nor shall it constitute the waiver of any performance other than the actual performance specifically waived. 19. Governing Law; Dispute Resolution This Agreement and all rights and obligations of the Parties hereunder are subject to all applicable State and Federal laws and all applicable duly promulgated orders and regulations and duly authorized actions taken by the executive, legislative or judicial branches of government, or any of their respective agencies, city councils, public utility boards, departments, authorities or other instrumentalities having jurisdiction. This Agreement was executed in the State of Texas and must in all respects be governed by, interpreted, construed, and shall be exclusively enforced in accordance with the laws of the State of Texas. It is agreed that the provisions and obligations of this Agreement are performable in the City of Denton, Denton County, Texas. Should either Party to this Agreement commence legal proceedings against the other to enforce the terms and provisions of this Agreement, the Party who does not substantially prevail in the proceeding(s) shall pay a reasonable amount of attorney's fees and expenses (including, but not limited to expert witness fees and deposition expenses) incurred by the prevailing Party. Any dispute, need of interpretation, claim, counterclaim, demand, cause of action, or other controversy arising out of or relating to this Agreement or the relationship established by this Agreement, any provision hereof, the alleged breach thereof, or in any way relating to the subject matter of this Agreement, involving the Parties and/or their respective representatives (for purposes of this Section 13 only, collectively, the "Claims"), even though some or all of such Claims allegedly are extra-contractual in nature, whether such Claims found in contract, tort, or otherwise, at law or in equity, under state or federal law, whether provided by statute or the common law, for damages or any other relief, shall, if mutually agreed to by the Parties at the time of the Claims, be resolved by binding arbitration in accordance with this Section 13. Arbitration shall be conducted in accordance with the rules of arbitration of the Federal Arbitration Act and, to the extent an issue is not addressed by the federal law on arbitration, by the Commercial Arbitration Rules of the American Arbitration Association ("AAA") as the same may be in effect from time to time to the extent not in conflict with this Section 13 and shall be subject to the Federal Arbitration Act. Each Party shall appoint an arbitrator, within 30 days of the notification of a Party's intent to proceed with arbitration. Within 30 days of their appointment, the two party-appointed arbitrators shall appoint a third arbitrator, who shall be neutral and shall have at least eight years' professional experience in electrical energy-related transactions; shall not have been previously employed by either Party; and shall not have a direct or indirect interest in either Party or in the subject matter of the arbitration. If either Party fails to designate an arbitrator within the time specified or the two Party appointed arbitrators fail to designate a third arbitrator within 30 days of their appointment, the remaining arbitrator(s) shall be appointed by the AAA. Each Party shall pay for the expenses incurred by its designated arbitrator and the costs of the third, neutral arbitrator shall be divided between the parties. The validity, construction, and interpretation of this agreement to arbitrate, and all procedural aspects of the arbitration conducted pursuant hereto shall be decided by the arbitrators. In deciding the substance of the Parties' Claims, the arbitrators shall refer to the governing law. Only damages allowed pursuant to this Agreement may be awarded and, without limitation of the foregoing, the arbitrators shall have no authority to award damages contravening in any way the limitation of liability agreed to by the parties pursuant to this Agreement. It is understood and agreed that judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. It is agreed that the arbitrators shall not have the authority to make rulings of law other than rulings as to the interpretation of this Agreement. 20. Relationship of the Parties. Nothing in this Agreement is intended to create a partnership, joint venture or other joint legal entity making any Party jointly or severally liable for the acts of the other Party. Each Party shall be solely liable for the payment of all wages, taxes, and other costs related to the employment of persons by that Party to perform under this Agreement, including all federal, state, and local income, social security, payroll and employment taxes and statutorily mandated workers' compensation coverage. None of the persons employed by either Party shall be considered employees of the other Party for any purpose; nor shall either Party represent to any person that such persons are or shall become employees of the other Party. 21. Waiver. Delay by any Party in enforcing its rights under this Agreement shall not be deemed a waiver of such rights. The failure of a Party to this Agreement to insist, on any occasion, upon strict performance of any provision of this Agreement will not be considered to waive the obligations, rights, or duties imposed upon the Parties. No waiver of any breach or violation of any term of this Agreement shall be deemed or construed to constitute a waiver of any other breach or violation, whether concurrent or subsequent, and whether of the same or of a different type of breach or violation. 22. Severability/Material Adverse Change. If the federal government or the State government of Texas adopts, enacts, or otherwise imposes a new law, rule or regulation which either makes a Party's performance under this Agreement unlawful or makes this Agreement unenforceable, and such governmental action does not constitute a Force Majeure event under Section 29 of this Agreement, (i) the remainder of the terms, conditions, covenants restrictions and other provisions of this Agreement shall remain in full force and effect unless such an interpretation would materially alter the rights and privileges of any Party hereto; and (ii) the Parties shall negotiate in good faith to amend the terms of this Agreement and to determine the appropriate changes, if any, so that the Party affected by such change in law or regulation is able to lawfully perform the entirety of its obligations without materially adversely affecting the financial benefit hereunder to the other Party. 23. Headings and Captions. Section headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. Whenever used herein the singular number shall include the plural, the plural shall include the singular, and the use of any gender shall include all genders. 24. Counterparts. This Agreement may be executed in any number of counterparts, which may be executed at different times. Each counterpart, including applicable individual attachments shall constitute an original but all such counterparts together shall constitute one and the same instrument. 25. No Third-Party Beneficiaries. This Agreement is neither intended to nor does it create rights, remedies, or benefits of any character whatsoever in favor of any persons, corporations, associations, or entities other than the Parties, and the obligations herein undertaken and assumed are solely for the use and benefit of the Parties, their successors-in-interest and, where permitted, their assigns. 26. No Solicitation. For 18 months following the termination of this Agreement, Customer will not solicit any employee or consultant to leave the employ of Itron, provided that the foregoing shall not be construed to prohibit mass media advertising not specifically directed towards employees or consultants of Itron. 27. Assignment. Neither Party will assign this Agreement, directly or indirectly, without the prior written consent of an authorized executive officer of the other Party, with such consent not to be unreasonably withheld, provided that either Party may assign all or any part of this Agreement to its successor in a merger, consolidation or comparable transaction or to the purchaser of all or substantially all of its assets (or the assets associated with a particular line of business) so long as such successor or purchaser agrees in writing to comply with the terms and conditions of this Agreement and provided that the successor or purchaser has a comparable credit rating with Dun and Bradstreet, or other similar rating agency; and, provided further that Itron may assign this Agreement to an affiliate, including to a parent, subsidiary or sister entity, while remaining liable for performance of this Agreement. 28. Publicity. Unless otherwise provided in a separate confidentiality agreement between the Parties, each Party may issue a press release following the execution of this Agreement, subject to the other Party's advance written approval, which shall not be unreasonably withheld. Each Party hereby consents to the other Party's use of its name, URL and logo on its website and in its customer and partner lists for corporate and financial presentations. 29. Force Majeure. "Force Majeure" means an event or circumstance which prevents one Party from performing its obligations under this transaction, which is not within the reasonable control of, or the result of the negligence of, the claiming Party, and which, by the exercise of due diligence, the claiming Party is unable to overcome or avoid or cause to be avoided. Neither economic harm to a Party nor the financial condition of a Party shall constitute Force Majeure hereunder. In the event that either of the Parties should be delayed in, or prevented from performing or carrying out any of the agreements, covenants and obligations under this Agreement by reason of Force Majeure, then, during the pendency of such Force Majeure but for no longer period, the obligations of the Party affected by the event, shall be suspended to the extent required. Neither Party shall be liable to the other Party for, or on account of, any loss, damage, injury or expense (including consequential damages) resulting from, or arising out of any such delay or prevention from performing; provided, however, the pendency of such Force Majeure will be of no greater scope and of no longer duration than is reasonably required by the Force Majeure, and the Party suffering such delay or prevention shall use its reasonable best efforts to provide the other Party with written notice within twenty four (24) hours after the occurrence of such event, and shall take all commercially reasonable efforts to mitigate the effects of such event of Force Majeure and to remove the cause(s) thereof. Neither Party shall be required by the forgoing provisions to settle a strike affecting it except when, according to its best judgment, such a settlement seems advisable. Force Majeure shall include, without limitation, strike, stoppage in labor, riot, significant fire, flood or ice damage, tornados, invasion, insurgency, civil war, commotion, insurrection, blockades, embargoes, sabotage, epidemics, explosions, acts of terrorism, military or usurped power, order of any court granted in any bona fide adverse legal proceeding or action, order of any civil, military or governmental authority (either de facto or de jure and including, without limitation, orders of governmental and administrative agencies other than The City of Denton or the Itron which conflict with the terms of this Agreement), acts of God or public enemies; provided, however, that existence of the foregoing factors shall not be sufficient to conclusively or presumptively prove the existence of a Force Majeure event. 30. Notices. All notices, requests, statements or payments shall be made as specified below. Notices required to be in writing shall be delivered by letter, electronic media, facsimile or other documentary form. Notice shall be deemed to have been received by the close of the day on which it was transmitted or hand delivered (unless transmitted or hand delivered after the close of recipient's business or on a day on which recipient is not open for business, in which case it shall be deemed received at the close of the next day on which recipient is open for business). Notice by overnight mail or overnight courier shall be deemed to have been received one (1) day after it was sent (unless delivered after the close of recipient's business or on a day on which recipient is not open for business, in which case it shall be deemed received on the next day on which recipient is open for business). A Party may change its addresses by providing notice of same in accordance herewith: Itron: Attn: General Counsel Customer: Itron, Inc. Denton Municipal Electric 2111 North Molter Road 1659 Spencer Rd Liberty Lake, WA 99019 Denton, TX 76205 Phone No.: (509) 891-3377 Fax No.: (940) 349-7334 Phone No.: (940) 349-8487 Fax No.: (509) 891-3331 Attn: Phil Williams, General Manager INVOICES: Denton Municipal Electric 1659 Spencer Rd Denton, TX 76205 Phone No.: (940) 349-7642 Attn: J.R. Richardson, Metering Superintendent Email: JR.Richardson@cityofdenton.com [Signature Page Follows] 8 Agreed to and accepted: THE CITY OF DENTON, TEXAS A TEXAS MUNICIPAL CORPORATION Signature: _ Print name: Title: Date: ATTEST: JENNIFER WALTERS, CITY SECRETARY Itron, Inc. Signature: 4 Print name: @V@tl Sr. Vice President & CFO Title: Itron, Inc. Date: Address: Itron, Inc. Attention: General Counsel 2111 North Molter Road Liberty Lake, WA 99019 By: Tax Exempt: Yes / No (if yes, attach copy of Tax Exemption Certificate) [Signature Page to Software License and Services Agreement] Attachment A Pricing Summary Software Quantity One Time License Fee Itron Enterprise Edition Meter Up to 45,000 Meters $50,000.00 Data Management (IEE MDM), Mass Market IEE MDM AMI Interval Data Billing Up to 45,000 Meters $15,000.00 Module Total $65,000.00 Attachment B Statement of Work StaJAL.enent of Work IEE METER DATA MANAGEMENT [MGM] SOLUTION Denton Municipal Utilities Author- /iron Date: January28, 2010 Version: 1.1 IEE MDM SOW -Denton TX (v1.101-28-10),docx Confidential Page 1 of 27 lP~ca® A. About this Document .............................................................................................................................................3 B. Document Controls ..4 B.I. Change Record ..4 B.2. Reviewers - Itron ..4 B.3. Reviewers - DMU ..4 B.4. Document Storage ..4 B.5. Document Owner ..5 C. Project Overview ..6 C.1. Project Overview ..6 C.2. Delivery Methodology ..6 D. Solution Overview 11 D.1. Solution / Business Objectives 11 D.2. Itron Solution To Be Delivered 11 D.3. Solution Diagram 12 E. Key Deliverable Overview 13 F. Project Timeline & Resources 15 F.1. Itron Project Roles and Responsibilities 15 F.2. DMU Project Roles and Responsibilities 15 G. General Project Assumptions 16 G.1. Project Management 17 G.2. Define, Design, System Architecture & Environments 17 G.3. Install, Build & Configure 19 G.4. Testing 20 G.5. Training 20 G.6. Project Transfer 20 H. Service Fees 21 H.1. Additional Services 21 H.2. Change Control Process 21 1. Statement of Work Agreement Approval 22 J. Appendix A - Change Control Process 23 K. Appendix B - Change Order Form "Sample" 24 Purpose/ Rationale for Change Order 24 Tasks and Responsibilities 24 Additional Effort & Fees 24 Billing Information 24 Agreement 25 L. Appendix C - Project Plan 26 M. Appendix D - Key Terms 27 IEE MDM SOW -Denton TX (v1.101-28-10).docx Confidential Page 2 of 27 WON This document is intended to provide a basis of mutual agreement for the project services required to implement the IEE Meter Data Management (MDM) solution provided by Itron, Inc. (Itron) in accordance with the Itron Software License and Services Agreement signed July 14, 2010. This SOW shall be updated under the Change Control Procedures throughout the duration of the Agreement as needed. This information may also be contained in a Change Order to which this SOW may be attached and the language in that Change Order would take precedence. Definitions for this document are contained in the Agreement and in Appendix D. Confidential Page 3 of 27 IEE MDM SOW - Denton TX (0.101-28-10).docx WON B.1. Change Record Date Author Version Change Reference Jan. 27, 2010 Steve Firth 1.0 Date Created Jan. 28, 2010 Phil Duncan 1.1 Various edits and content review B2. Reviewers - Itron Name Sign Off Required? Position , Phil Duncan Y Director, Software Solutions Delivery B.3. Reviewers - DMU Name Sign Off Required? Position I B.4. Document Storage This document was created using MS Word. IEE MDM SOW -Denton TX (v1.101-28-10).docx v Confidential Page 4 of 27 !frees B.5. Document Owner This document contains information that is considered "Confidential Information" under the Contract / Agreement. This document, or portions thereof, should not be referred to, distributed or utilized in any other way outside of the projects needs. IEE MDM SOW - Denton TX (0.101-28-10).docx Confidential Page 5 of 27 upon C.1. Project Overview The purpose of this project is to define / design, install, configure and test the IEE MDM system. The solution must be designed and deployed in a way that does not require changes to the IEE MDM software application. Denton Municipal Utilities (DMU) will be collecting meter data from approximately 45,000 electric meters and 28,000 water meters. Most meter readings are currently being collected over 21 billing cycles with Itron MV-RS and handhelds. Additionally, DMU has approximately 60 electric meters with 15-minute load profile data being read daily with MV-90xi. DMU is currently installing the Trilliant AMI solution for electric meters and will be collecting one channel of 15-minute interval data from 40,000 residential and approximately 5,300 commercial meters. Approximately 150 additional commercial meters will have two channels of kW and kVA at 5-minute interval data. DMU will want to store two years of on-line data for all meters. Water meter readings will continue to be collected once per month. C.2. Delivery Methodology The Itron Advantage methodology closely follows standard project lifecycle / systems development life cycle (SDLC) methodologies and consists of five phases. They are Define, Design, Build, Deploy/ Operate, and Transfer. Each phase is described below. The activities are listed in the phases in the order they are typically performed. Since every implementation is unique, these activities may be able to be performed earlier or later in the implementation process as a project demands. During the Define phase, the project team scopes the work, prepares a project plan, assigns a project team, conducts a kickoff meeting, and establishes a communication and risk plan. This phase also includes gathering and documenting requirements through workshops. These workshops are organized to gather high-level business / functional, technical, and integration requirements of the solution. The Define phase is critical to launching the rest of the project activities. The Design phase is key to successfully designing the solution. Detailed design sessions and documentation may be used to ensure project requirements are met through system design and business process mapping and testing and training plans are developed. Two key design documents are created during the Define phase and updated as necessary in the Design phase. These are the Business Solution Design (BSD), which maps requirements to the system design and configuration; and the Technical Architecture Design (TAD), which documents the solution architecture diagram, the required environments, hardware and software requirements, and imports and exports. The Build phase includes installing and configuring the software to meet the business requirements, testing the Itron system and providing training as outlined in the training plan. Configuration includes: defining and applying the system settings, code table lists and field values; creating / updating task templates for imports, exports, reports and other processes; importing meter configuration information into IEE MDMS; and setting up process schedules. Testing includes software product QA testing performed by Itron QA in-house, the onsite testing performed by the Itron project team, and the support of client testing. Training is customized for functional and technical personnel and typically delivered using a train-the-trainer approach prior to Go-Live. To move on to the Deploy/ Operate phase, the customer must sign off on the solution tested and readiness to cutover and go-live. IEE MDM SOW -Denton TX (v1.101-28-10).docx Confidential Page 6 of 27 dfr'erm During the Deploy / Operate phase Itron supports the implementation rollout. This includes the activities immediately preceding the Go-live as well as any post production support provided. Key activities include: finalization of Production Cutover Plan and support of client-created organizational readiness plan(s); support of client creation of standard operating procedures (if not included in the original estimate, this can be added using a change order if desired); support of the client setup, installation and configuration of the production environment; execution of the steps contained in the production cutover and organizational readiness plans; cutting over to production; and support of post-go-live activities. The Transfer phase occurs after project tasks have been completed, and the purpose is to close out project activities and transition the client to Itron Support Services. Key deliverables include: the finalization of project documentation, a knowledge transfer check list identifying the completion of each item on this list in preparation for turnover to the client; formally transitioning client to Itron Support Services; project checklist review and sign- off. Upon completion of the project, the customer signs off on the project. Itron will prepare a post-project review survey and report that is used for lessons-learned sessions of what worked well and what didn't work as well during the project. Additionally, Itron can provide a system use assessment and optimization session after the system has been operational in order to identify areas that are underutilized, sections that could use additional training, and to answer questions that users have regarding the system and processes. This activity has not been included in the estimate provided; however, it can be added using a change order. Testing Methodology Clients will typically set up a minimum of two environments labeled test and production. Itron performs initial installation, configuration and testing in the test environment. After all interfaces have been implemented and tested, a copy of the code will be taken to be used for the configuration of the production environment. As a best practice, Itron recommends testing be performed in cycles. This iterative approach ensures the system is configured and refined properly to achieve the project objectives. Additionally, it serves as training opportunity for the customer Itron's standard testing approach includes the following activities / deliverables: Test Plan - Identifies the approach, roles and responsibilities, test cases and acceptance criteria. The test plan will identify the test approach, participants, schedule, environment setup, testing requirements, retesting strategy, test case listing, success / acceptance criteria, and test defect management processes. It will be used to create the detailed test cases. Test Cases - Designed to validate functionality, non-functional, scalability, security and usability. Test cases are developed based on the processes outlined in the test plan. Itron will assist/ support the client in their development of additional test cases. The test cases will cover the basic operation of the system. Test cases include the following types of information: • Test condition • Test steps for that test condition • Expected result • Actual result • If test failed, identify impact (severity level) Pre-Testing Review- If requested / included, this provides for a pre-testing training session to ensure all participants understand the solution and testing procedures. This is often done by walking through one or more test cases in the actual system. Testing - The actual execution of the tests on the client's hardware performed by the Itron project team and then the client team, supported by the Itron team (reference the testing type summary table below). Obtain Test Case Sign-Off- Ensures test was completed and expected results achieved. IEE MDM SOW - Denton TX (Al 01-28-10).docx Confidential Page 7 of 27 lfr6 a Obtain Test Results Sign-Off - Marks the end of the testing and confirms that the client is ready to deploy in a production environment. Testing Types - Summary Functional Functional testing includes routine tests performed anytime a product is Install, Build & installed or upgraded. It ensures the application operates as expected. Configure It also tests the hierarchy and configuration to ensure accuracy of setup and expected operations. Integration Integration testing is performed by the client with Itron support to ensure the Test IEE MDMS data interfaces are functioning and system components can pass data and commands as designed. System End-to-End "system" testing is performed by the client with Itron support to Test ensure that all standard functionality, business scenarios, and custom functionality works as identified in the solution design. Solution End-to-End "solution" testing is identical to the System Test. It is entirely Test performed by the customer to ensure the solution achieves the business objectives. Test cycles are iterative cycles for testing the solution • Cycle 1- Owned by Itron. This cycle ensures everything is operating as expected and test cases are complete / comprehensive. • Cycle 2- Generally, collaborative testing between Itron and the customer (side by side) to ensure test cases and system configuration meet the requirements. This cycle also provides the opportunity for additional one-on-one training. • Cycle 3 - Integration, System and Solution Testing are owned by the customer. By Cycle 3, test cases, interfaces and system configuration are final. Solution should operate as expected. Test Type Testing Cycle 1 Testing Cycle 2 Testing Cycle 3 Functional Itron Owns Itron Owns Itron Owns Integration Itron Owns Side by Side Customer Owns System (End-to-End) Itron Owns Side by Side Customer Owns Solution (End-to-End) Customer Owns Training Training is a key component of Itron's delivery methodology to ensure the client's staff is ready to design, test, operate and maintain the IEE MDMS solution. Training is based on the training plan developed during the project and is conducted over the following phases: Define Phase: Solution Capabilities Overview - Near the beginning of the project, the Solution Capabilities Overview is provided. This is a base product overview of the IEE MDMS solution. This ensures that the entire project team understands the solution and can be active participants in the requirements gathering and solution design. IEE MDM SOW -Denton TX (v1.101-28-10).docx Confidential Page 8 of 27 Ptrm~ Design Phase: Technical Team Training - Prior to design, the Technical Team is trained. It provides the technical team with the basic understanding so that they may actively participate in the design and build activities. Build Phase: Testing Team Training - This training is geared to prepare the testers for testing. They must understand the solution they are testing and the overall testing process. In some cases the client's team identified to test the solution may not be the same as those who participated in prior training offered. For these individuals, a client-specific Solution Capabilities Overview session may be offered to bring them up to speed with basics such as navigation, key product features and functionality. Build Phase: End User Training - Our End User Training is targeted to the users of the system after go live. A sampling of these users is listed below. This training may be delivered in formal course delivery by Itron or in a train-the-trainer approach. MDM-MM MDM-C&I Customer Care- Customer Care- Customer Care- ;Revenue Y MDM Advanced •c)peratnr •Operatoi MM C&I Savesource Protection Suite .Advanced •Nlanager 4.4anager ExternalCustomer •ExternalCnstomer •ExternalCnstoinpi.'..Investigator •SysAdnlln •SysAdInin .Administrator .Administrator .Administrator Administrator The table below outlines types of speck training courses conducted in typical IEE MDMS implementations. Course Objective Main Training Topics Business Operations This course will provide training on the > Navigation and UI Training baseline Itron system, prior to customer > High-level data model (key configuration. Training includes functionality IEE MDMS entities and and tools and alternatives for customer- relationships) specific configuration. > Graphs and Reports > Alerts > Security and User Profiles > Configuration Parameters > Application specific features API Training This course provides technical personnel with > API overview the knowledge and tools to support > XML integration to Itron products in the customer's > Web Services environment. Training is specific to each API. > Real time and batch needs IEE MDM SOW -Denton TX (v1.101-28-10).docx Confidential Page 9 of 27 fordo Rate Modeler This course provides business and technical personnel with the knowledge to use the Rate Modeler. The course includes many hands- on exercises. Introduction to the Rate Modeler > Where do I build formulas? > Simple formula syntax and functions Formula constants > Integration with VEE > Aggregation System This is hands-on training for the System > Security Administration Administrator and is targeted to daily > System Settings operation of the Itron product. Training will > User Administration include system settings, security and user > Task Management administration, and task management. Note > Troubleshooting that more formal classroom-style training is > Installing upgrades and available, if desired, but is not anticipated for patches standard projects. "Day in the Life" User This course will provide training on each Itron Details are dependent on the Training system, including functionality and tools and class to be offered. All courses will be useful for system operators and other follow the following high-level users. format: > Navigation and User Interface > Overviews of solution-specific business functionality > Hand-on class exercises IEE MOM SOW - Denton TX (Al 01-28-10).docx Confidential Page 10 of 27 This section provides an overview of the Itron solution to be deployed as part of this project. D.I. Solution / Business Objectives Itron will work with DMU to implement the IEE MDM solution to achieve the following objectives: Solution Objective (business objectives) Project Strategy Deploy a meter data collection, data management, data Support DMU's requirements for meter data collection, storage, and data distribution solution which includes data management, data storage, and data distribution Validation, Estimation, and Editing (VEE) functionality. including DMU's Validation, Estimation, and Editing (VEE) requirements. Support the integration between IEE MDM and external Support DMU's requirements for the integration between systems to facilitate the distribution of meter configuration and IEE MDM and external systems to facilitate the meter reading data. distribution of meter configuration and meter reading data. Deploy a scalable system and architecture to support growth. Provide DMU with a scalable interval meter data acquisition and management platform to support potential growth in interval meter deployments. Provide an architecture that will support DMU in future efforts to improve and enhance surrounding technologies and business processes. Consolidate system data. Consolidate DMU's existing meter data collection production systems into a single meter data collection and VEE solution. Continue to support customers with minimal disruption Support a variety of internal and external interval meter through implementation process. data customers with a bare minimum of disruption to their existing technology and business processes. Provide a set of tools to improve accuracy, integrity, and Support DMU's requirements for providing a centralized audit-ability of meter configuration and meter reading data. energy data repository including a set of tools for ensuring the accuracy, integrity, and audit-ability of meter configuration and meter reading data. D2. Itron Solution To Be Delivered This section provides a brief description of the capability to be delivered to DMU. IEE Meter Data Management Itron Enterprise Edition"' Meter Data Management (IEE MDM) is the meter data management component of the IEE platform and provides centralization of meter data management business processes. IEE MDM provides comprehensive validation, editing, and estimation (VEE) capabilities, composed of both pre-defined and user-defined VEE rules and allows different rule sets to be applied against different meters or groups of meters. IEE MDM also provides robust calculation capabilities via the Universal Calculation Engine (UCE). IEE MDM SOW - Denton TX (0.101-28-10).docx Confidential Page 11 of 27 tdra~ar D.3. Solution Diagram 00 Build As°la" (,y~~ neflna BoheduNa RuEas 411_XuF~1° Calculetlona ovr. Feu Automated Data s_ss Estimation Collection Validation su«~s9_ F'M anual Ed1Ung and Estimation Event Filtering and Delivery IEE MDM SOW -Denton TX (0,101228-10).dou Confidential Oeflna Exports Build echodules Calculations •Aearega"on ....,BIN success Data Exportl Determinants er) Interface QOU, ON Neteng Losses Billing/ Business Systems/ Data Consumers Outage Management /Network Operations Page 12 of 27 "I' The following are key deliverables required for the successful implementation of the solution. This section provides an overview of these deliverables. # Phase / Area Key Deliverables / Description Primary Activities Owner Define Phase 1. Project Planning & Project Control & Project Management is achieving the goals or Itron Kickoff Management Services objectives of the project within budget, on time, and at the desired quality level to meet the Client's expectations. This includes managing resources, scope, risk, project financials and communication. Other activities include project planning a project kickoff meeting. 2. Business Solution Solution Capabilities At the beginning of the project, and prior to Itron Requirements & Overview (Training) requirements gathering, Itron delivers a Design "generic" Itron solution capabilities overview (training). It ensures all project members have a baseline understanding of the Itron solution. 3. Business Solution Solution Requirements The Itron Business Consultant schedules Itron Requirements & Workshops & Solution Requirements Workshops. These Design Document workshops are working sessions where the Client's current processes (As-Is) are shared and understood and detailed requirements are gathered. Upon completion of the Workshops, solution requirements are documented, in the Business Solution Requirements (BSR) document, and signed-off by the Client. Design Phase 4. System Technical Architecture Upon completion of the Solution Requirements Itron Architecture, Design & Document Workshops, the Technical Architecture Design Environments & (TAD) is documented. This documents the To- Design Business Solution Be environment(s) and provides a Design Document recommendation for hardware sizing. The Business Solution Design (BSD) document maps requirements to the system design and configuration. 5. System Test & Training Plans Test and Training Plan Design documents are Itron / Client Architecture, Design created and Production cut-over planning Environments & begins. Design Production Cut-over Planning Build Phase 6. Installation, Build Install Hardware & Once the hardware has been procured it will be Client & Configure Prepare Environments installed and the environments readied for development, testing, training and production deployment. 7. Installation, Build Install & Configure During the product installation, the Itron Itron / Client & Configure Software Technical Consultant performs many activities including establishing the server, installing the Interfaces & Integration applications and configuring software connections. Itron will also support the client in IEE MDM SOW -Denton TX (0.101-28-10).docx Confidential Page 13 of 27 WON # Phase / Area Key Deliverables / Description Primary Activities Owner building the interfaces (if included in the original estimate). Once installation is complete, data is formatted and collected. Once data is collected, the IEE MDM solution will be configured. Functional testing should occur to ensure all is working as intended. One-on-One hands on training should occur during each of these activities. 8. Installation, Build Pre-Testing Training Prior to testing, Itron will provide additional IEE Itron / Client & Configure solution training to the core project team to Test Cases, Scripts & facilitate the testing process. The Client is Data responsible for developing all test cases, scripts and data with support from Itron (if included in the original estimate). Jointly undertaken by Testing Itron and the Client, testing is initiated and follows the sequence outlined in the Itron methodology (Functional, Integration, System / End-to-End, and Solution testing). Client sign- off at each stage is required. 9. Pre- Go-Live and Support Services Upon successful completion of testing, a plan Itron Production Cut- Transition Planning to transition the implementation project to Itron Over Support Services is created. Pre- Go-Live Pre- Go-Live Training training is scheduled and conducted and formal cut-over to Production occurs. Go-Live Transfer Phase 10. Project Post implementation Post-implementation support begins on the Go- Itron / Client Support Support Live date. The Itron implementation project team will provide both on-site and remote Execute Transition Plan support to the Client during the agreed upon to Support Services post-implementation timeframe. The Support Services transition plan created prior to Go-Live will be executed, followed by a Phase / Project Client Review and Sign- review between Itron and the Client to assess off (successful Phase / the success of project efforts and provide sign- Project completion) off / approval to close the Phase / Project. IEE MDM SOW - Denton TX (0.101-28-10).docx Confidential Page 14 of 27 The project timeline and resources are based on Itron's best practices for delivery of IEE MDMS interfaces as well as the deliverables and assumptions provided in this Statement of Work. The detailed project schedule and project plan are located in Appendix C. The project timeline contains estimates based on the information known at this time. F.I. 16ron Project Roles and Responsibilities The following table provides an overview of the Itron project roles and responsibilities: Itron Role Responsibilities Name Project Manager Manages the following: TBD - Project Planning & Scope - Project Financials - Scheduling & Meetings - Active Participant in Project Deliverables Business and Technical Facilitates Requirements Gathering TBD Consultants Designs Solution Leads Training Activities Supports Project / Implementation Work Assesses and Designs: - Technical Architecture - Data Workflow - Installs Configures & Tests the System F.2. DMU Project Roles and Responsibilities The following table provides an overview of the DMU project roles and responsibilities: Client Role Responsibilities Name Project Sponsor Drives project charter for the company TBD Provides resources Removes obstacles Reviews / approves plans & agreements Project Manager Supports Itron Project Manager in: TBD • Achieving project objectives • Tracking progress • Communicating & managing change Business Process Owner Works with Itron Business Consultant to gather TBD requirements, design & test the solution and lead the business-related project activities Technical Resources Works with Itron Technical Consultant to design and TBD support meter collection interfaces with all AMI vendors Hardware Procurement. Provides ongoing administration of Itron system IEE MDM SOW -Denton TX (vl .101-28-10).docx Confidential Page 15 of 27 HT-n The purpose of this section is to list the project "general" assumptions about the solution to be delivered and the services to be provided for both Itron and DMU. Listing assumptions ensures expectations are set and clearly understood by both parties. In addition, these assumptions will help drive an on time, on budget, in scope delivery of this project. # Assumption Project Scope Assumptions 1. This is a "baseline" implementation project for the Itron's Enterprise Edition (IEE) Meter Data Management application software. No customization of the Itron application modules or of the standardized reports, other than explicitly noted in these assumptions, is included in the scope of work. If, during requirements definition and / or business process discussions, the need for a product enhancement, product customization or custom reports are identified, this will be considered out of scope, and will require a either a change order or a new Statement of Work to be approved prior to implementation of any change. 2. Itron is proposing the IEE MDM (rel 7.0 with appropriate Service Packs and / or hot fixes) solution only. No upgrade to a future IEE release during this project has been included, nor is an upgrade advisable during the project due to the potential to add significant risks and impacts. 3. This project will focus on DMU's electric meter population. DMU's water meter population can be added at a later time via a change order or a separate Statement of Work (SOW) 4. Scope is based on these assumptions that are limited in nature and have not been confirmed with DMU and / or through detailed requirements gathering which may alter scope, effort, price and / or timeline. Any changes, including changes to approved requirements, will be documented and managed via the Statement of Work (SOW) and Change Control Process. 5. Any scope not specifically identified in this estimate, Itron's responses to clarifying questions, the approved project plan or Statement of Work (SOW), is expressly excluded. No integration with systems other than those explicitly noted in these assumptions is included in this project. 6. The level of services estimated assumes that the project time line is consistent with the schedule specified in the final work plan provided by Itron. Changes to the schedule, including changes in the project start date and / or changes in project duration, may require changes in the estimated effort. 7. Itron has assumed no Systems Integrator (SI) will be involved in this project. This estimate is based on Itron's standard implementation methodology. Should a SI be used by DMU on this project, any SI-imposed deviation from Itron's standard implementation methodology will have an impact on the estimate provided. 8. No work will commence until the required contractual documents are executed, including Software Licensee agreements, Maintenance Agreement and / or Professional Services Agreement and a Statement of Work (SOW).. Any scope changes to this estimate will only be accomplished by a change order agreed to and signed by both parties. The current Itron hourly consulting services rates will be used for all such additional work. Itron will use their standard Change Order form, unless otherwise specified. For more information about the Change Order process, please refer to Itron's standard Change Control Process. Project Personnel Assumption 9. The Itron Project Manager and / or Solution Delivery Manager will provide overall responsibility, sponsorship and executive level support for Itron. 10. Itron has primary responsibility for project planning, management and delivery as specified in the project plan. All Itron project resources will report to the Itron Project Manager. 11. The specific Itron personnel who will be assigned to this project may change subject to availability. 12. Itron and DMU will provide qualified personnel to staff the project to ensure project success and will use reasonable efforts to maintain the continuity of personnel assigned. Itron and DMU will provide dedicated project team members and management resources to ensure timely completion of work, reviews & approvals as agreed upon in the project plan / schedule. 13. DMU will assign a project manager and appropriate staff for the duration of the project. DMU will identify IEE MDM SOW -Denton TX (v1.101-28-10).docx Confidential Page 16 of 27 6fro a # Assumption experienced resources as outlined in this document prior to the end of the Define phase of the project and will ensure that subject matter experts are available for all system components that will integrate with the IEE system or use IEE data. DMU will identify all outside consultants and partners who will participate in the project, along with their roles and provide Itron with their appropriate contact information. Estimate Assumptions 14. Estimate does not include expenses. 15. Taxes, Tariffs and Duties are not included in the price quoted. 16. Itron will invoice for Professional Services monthly on a time and materials basis. "Other" Assumptions 17. Itron will provide a template/outline of the revenue cycle process (meter to cash) that DMU will use to provide an overview of the current DMU process. DMU and Itron will review this prior to the commencement of formal Itron IEE MDM workshops on product configuration. 18. Work under this estimate will be performed at DMU facilities and / or Itron locations. DMU will furnish all facilities and related services at the DMU's site that are required by Itron personnel engaged to perform the Services. This includes access to desks, phones, Internet access and conference rooms. 19. Itron will provide the Services under this estimate primarily during normal business hours, 8:00 AM to 6:00 PM Monday through Friday, except holidays. If necessary, DMU will provide after-hours access to DMU facilities for Itron personnel, especially if the testing process requires weekend work. G.I. Project Management # Assumptions 20. All Itron project resources will use methodologies, tools and templates to be determined by the Itron Project Manager. All deliverables completed by Itron will conform to standards defined and agreed upon by DMU and Itron. 21. Itron will provide the DMU project team members with standard Itron documentation such as technical architecture, functional / technical specifications, product installation / configuration guide, training presentations / materials, etc, for DMU's use in preparing for and executing the project. 22. DMU will provide access to in-house issue tracking / resolution tools to entire project team. DMU can use MS WORD or MS EXCEL to track changes. The objective is to have a single report that is available to all parties that will be used to record issues and progress towards their resolution. The logging of these issues will be the responsibility of DMU. G.2. Define, Design, System Architecture & Environments # Assumption 23. Per Itron's standard implementation methodology, requirements workshops for IEE product components and configuration will have been identified and communicated to DMU. Itron expects that the appropriate DMU Subject Matter Experts (SMEs) will participate in these workshops. Poor attendance or inability to quickly resolve discussion items within the workshops (e.g., within 24 hours) will increase the time to complete the requirements gathering activities and may require a change order. 24. Itron will be responsible for scheduling additional design sessions (if needed) and producing the Technical Architecture Design (TAD) document. 25. Completed architecture and system design documents (technical architecture and business designs) will include flow charts, outlines, process outputs and report descriptions and will be reviewed b both Itron and DMU and form IEE MDM SOW - Denton TX (0.101-28-10).docx Confidential Page 17 of 27 8trsara the basis for design decisions. 26. Remote access to test and production IEE server(s), networks and gateways will be provided (VPN / Terminal Services/ WebEx) by DMU. 27. DMU will provide Itron a local administrator account on all gateways and servers as needed for software installation purposes. DMU acknowledges that the installation of software may require machine restarts and agrees to allow such restarts as may be required. 28. Itron is not providing any hosting services or servers as part of this scope. DMU is responsible for procuring, setup and configuration of servers and all associated hardware, software and network connections for all environments to support this project including, but not limited to, development / test and production servers, in accordance with Itron recommendations and specifications. DMU will be responsible for troubleshooting all network related issues. Hardware configuration guidelines will be provided as a deliverable of the Requirements Sessions. 29. Project assumes that there will be two (2) computer environments: test / development and production. 30. The IEE standard windows authentication functionality will be used to allow IEE users to automatically log on to the GUI using DMU network credentials. If additional functionality is required, a change order will be created and an estimate for the effort will be provided. Application server(s) require Windows 2003 Server and client machines require Windows 2003 or Windows XP. Clarification in regards to MS Active Directory: AD groups can only be used for authentication, that is, grant users access to log in to IEE. AD groups cannot be used to authorize or deny specific functions. For this, IEE security roles must be employed. 31. Depending on the actual software to be implemented, all prerequisite hardware and operating system, database and any applicable 3rd party software are the responsibility of DMU and will be installed and configured per Itron's guidelines by DMU's IT group prior to Itron commencing the project. These may include some, or all, of the following: • Operating systems • Microsoft IIS • Database software - SQL Server or Oracle (including Oracle Enterprise Edition and / or Partitioning license) • Pervasive (current version per IEE Service Mode requirements - required for C&I with A Service Mode) • Crystal Reports developer license • ChartFX 7.0 WebForms (required for Customer Care) • NetUnity WSRP NET Framework 2.0 (required for MMCC using portlets within an existing utility portal) • Any other required software if / as needed Clarification: Pervasive is not a requirement for this project (we do not anticipate using the "service mode" functionality which is a replacement for MV-90). The NetUnity WSRP is not an initial requirement as "Mass Market Customer Care - MMCC" is not part of the scope of the project. 32. Desktop (hardware and software) requirements for all DMU systems users will be the responsibility of DMU's IT group to purchase, install and configure prior to the start of the project. 33. DMU will utilize 3'd party reporting software to create any additional reporting needs beyond the baseline IEE reports and DMU's personnel will create and maintain those additional reports. Itron will provide an IEE Data Dictionary and training on the document and schema. Itron advisory effort for report design or troubleshooting is additional and not included in the estimate. 34. DMU will be responsible for developing training, production cut-over and transition to support plans with assistance from Itron. Production cut-over plans include deployment and organizational readiness plans. Itron will share current knowledge and best practices information with DMU. 35. DMU will be responsible for developing and implementing any disaster recovery (DR) plan, including procuring, installing and testing necessary hardware and software and securing any required services and resources. IEE MDM SOW -Denton TX (v1.101-28-10).docx Confidential Page 18 of 27 6l~sfrs G.3. Install, Build & Configure # Assumption 36. Changes to the IEE MDM meter configuration hierarchy not explicitly covered by the agreed upon Business Requirements document will require an approved change order to be in place before the changes can be made. The impact of changes will also need to be assessed by Itron and DMU as to the need for additional Itron effort and / or changes to schedule. 37. Itron will do or will assist DMU with the initial install of IEE MDM in the test environment. Itron will need to be advised on any environmental changes made to the network during the course the implementation (i.e. upgrades in OS, security, db, etc.). This will facilitate troubleshooting any conflicts that come up as a result of these changes. Itron does not need to perform these upgrades or additions. 38. Once the hardware has been installed and the environment(s) readied, the software will be installed and configured. A backup of the IEE database will be made and copied to all subsequent environments. 39. Initial configuration of standard user roles and permissions will be set-up by Itron project team. DMU's technical resources will be responsible for providing initial user data in an Itron approved format. Itron will provide training in the administration of users and permissions to DMU personnel. DMU personnel will be responsible for subsequent additions, deletions or changes to users, permissions and roles. 40. The Itron solution will be configured according to the customer data provided to Itron by DMU. DMU technical resources will be responsible for providing customer data in an Itron approved format (e.g., program-based configuration, etc.) prior to Itron consulting resources beginning the solution system configuration / implementation. 41. Data migration services will not be provided by Itron and are not included in this estimate. Data migration is the responsibility of the DMU using the standard IEE product APIs. DMU is responsible for all data cleansing and remediation. 42. Integration / interfaces, data migration (if included) and conversion between IEE database and application software and DMU's systems is accomplished using standard IEE product API's as the demarcation point between Itron and DMU. DMU (and / or DMU's System Integrator) will be responsible for taking data from the Itron interfaces in standard IEE formats to DMU's existing information systems and delivering data from DMU's existing systems to the Itron IEE interfaces in standard IEE formats as follows: • Loading, migration, and importing of DMU's meter configuration data between IEE and DMU's CIS system is the responsibility of DMU and will be accomplished via standard IEE product APIs using program-based configuration constructs. Any translation required between DMU's core business systems (e.g., CIS / Billing, MV-90xi, etc.) is not covered in this estimate. DMU is responsible for formatting all initial customer configuration data into the Itron-provided format. This includes converting XML into an IEE-standard XML format where required. Itron will train and support DMU's personnel to load the initial configuration data. • All subsequent updates, deletions or additions of configuration data will be generated by DMU and delivered by DMU to IEE in IEE standard configuration XML API formats. DMU is responsible for the accurate generation and formatting of the configuration data and for all synchronization interface development within DMU's systems and between IEE. • IEE provides standard interfaces which will accept meter reads in standard P4, MV-RS or baseline IEE XML format. Any translation required from the meter collection systems is not covered in this estimate. • IEE will supply a read response (meter read data) in baseline P4, MV-RS or IEE XML (using IEE Reading XML) format to DMU's CIS system. DMU will be responsible to translate the standard file format to support integration to other systems, as desired. • MV-RS is assumed to be the method of interfacing with DMU's CIS system. Only limited technical training is included in this estimate to assist DMU in the design, testing and troubleshooting of meter reading data requests and responses. No effort for Itron coding of business logic or data transformation is included. 43. After approval of the solution requirements document, any ongoing system configuration changes are the responsibility of DMU. Ongoing system configuration (adding, removing, or changing, meters, accounts, service points, customers, etc.) will be the responsibility of DMU. 44. Assumes Itron will design and implement VEE for interval data; however, there will be no estimation of register data. 45. Development of Standard Operating Procedures (SOPs) is not included in this proposal. If this support is needed, a IEE MDM SOW - Denton TX (0.101-28-10).docx Confidential Page 19 of 27 O~r~n # Assumption I change order can be generated and approved. GA. Testing # Assumption 46. Unless otherwise agreed upon, the following roles related to testing will apply: • DMU will be responsible for leading all testing efforts with support from Itron. Itron will share current knowledge and best practices information with DMU in support of DMU's development and execution of testing activities. • DMU will define testing criteria, test cases and scripts, map requirements to test cases, and create test data. Itron will assist DMU in developing test plans by providing basic test plans to DMU. DMU will further tailor Itrons' test plans if required. • Itron will be responsible for initial functional unit testing upon successful installation and configuration of the database and application software • DMU will be responsible for leading and performing all business and integration testing with support from Itron as needed Clarification: Itron has a range of recommended tests that we will review with DMU as part of the project definition process. DMU's contribution to this will be to define and document the end to end components of the testing that are outside of the IEE system (beyond the import, system operations, and export). DMU will run the required end to end tests with guidance from Itron on the IEE MDM components and the import and export files. Itron and DMU will jointly agree on the test process in the early stages of the project. G.5. Training # Assumption 47. All training will use DMU data, if possible. However, if it is not possible, training will be provided with test data or Itron demo data. Through prior implementations, Itron has observed that it may be beneficial to utilize demo data for initial / preliminary training (pre-requirements, pre-testing, etc.) as it helps client representatives participating in the training stay more focused (some students have questions, discussions, concerns when seeing their data in the new system for the first time). Using client data during pre- go-live training is generally seen as a best practice. 48. Training approach is assumed that Itron is responsible for initial Project Team training on the baseline application, prior to requirements workshops and testing / client-configuration. DMU will identify attendees for each training session and ensure their attendance at all relevant sessions. The maximum number of attendees for each session will be ten (10) attendees. More than ten (10) attendees will require additional instructors and associated costs. Itron will also provide pre- go-live training on the Itron products in scope via a "Train-the-Trainer' approach. DMU will be responsible for all subsequent in-house training needs (DMU's users within, and outside of, DMU). 49. DMU agrees to furnish training facilities as required by Itron including dedicated training space (not shared with other concurrent company work activities), white board and / or tablet space with markers for instructor notations and diagrams, projection equipment (minimum 1028 X 768 lines of resolution). Itron recommends one training computer per student. A minimum of one training computer for every two students is required. G.6. Project Transfer # Assumption 50. Once transition of the project to Itron Support occurs, standard product support begins (as described in the Maintenance Services provisions). IEE MDM SOW -Denton TX (v1.101-28-10).docx Confidential Page 20 of 27 Oran Total fees are estimated to be in US $330,030.00 on a Time & Materials (T&M) basis. # Phase / Area Est. Hours Est. Total $ 1. Project Management 246 $46,740.00 2. Define 471 $89,490.00 3. Design 396 $75,240.00 4. Build (includes testing) 572 $108,680.00 5. Transfer 52 $9,880.00 Total 1,737 $330,030.00 Actual, reasonable travel related expenses will be billed directly to DMU on a monthly basis with no markup. Itron will invoice DMU on a monthly basis for work performed and for costs incurred. If at any point, there is reason to believe that this amount will be exceeded, Itron will immediately notify DMU as to the changes in the estimate and request a Change Order, which must be approved by both DMU and Itron prior to being in effect. Payment terms are net 30 unless other terms are specified in the Contract / Agreement (or within other Master or Solutions Contract Agreements) executed by and between Itron and DMU. DMU and Itron agree to process invoices in a timely manner consistent with the payment terms. H.I. Additional Services Additional services are subject to the terms in the Contract / Agreement. H2. Change Control Process A Project change order (Change Order) will be the vehicle for communicating changes. The Change Order must describe the change requested, the rationale for the change, the estimated price and the effect the change will have on the Project. All Change Orders must be approved in advance by DMU. The Change Control Procedure is described in Appendix A and a sample Change Order Form is included in Appendix B. IEE MDM SOW - Denton TX (0.101-28-10).docx Confidential Page 21 of 27 Denton Municipal Electric agrees to these terms and authorizes commencement of the Project as described in this SOW. Denton Municipal Electric I Itron r^ Date Date 1'~ f i / 1 SOW Author: Steve Firth Please return this signed SOW to: Itron, Inc. 2111 N. Molter Rd. Liberty Lake, WA 99019 Attn: Contract Administration Fax: (509) 891-3331 or PDF and email to contra ct.request c(D.itron.com. -a fully executed version will be returned. IEE MDM SOW - Denton 1 X (0.101-28-10).docx Confidential Page 22 of 27 C9vmro Project Scope Change Process Change Request Form Utility & Itron Initiate Change Request Form including: ■ Project Requirements ■ Problem Statement Utility Screens Change Request Form for preliminary approval and if approved forward to Itron for processing Utility & Itron Determine Change Classification and impact to the Project based on: ■ Scope ■ Resources ■ Schedule Itron Project Management assigns Change Request Form to appropriate Itron personnel for analysis Itron Perform analysis of change request and document results including changes to: ■ Cost or schedule ■ Project scope, strategy Itron Utility Once complete, submit Approve or dispute Change Request Form to Change Request findings: Utility for approval ■ Approve ■ Provide alternative and negotiate w/Itron Itron When approved, forward form to Itron Account Executive to initiate an Agreement Change Order and implement the chanae(s) IEE MDM SOW - Denton TX (Al 01-28-10).docx Confidential Page 23 of 27 lfr6n This document references the Statement of Work between Client ("Customer") and Itron, Inc. Corp (Itron) > Insert Title of SOW or Project Name. signed > Insert Date when SOW was signed.). The document specifies a change to the original agreement. At Client's request, Itron is providing additional effort > Insert brief description of additional work. The detailed tasks, time estimates and additional fees are outlined below. A signature on this document will represent the required authorization to proceed with the additional tasks specified in this Change Order. Purpose / Rationale for Change Order • >(List reason for change order. Include other options discussed and conclusions):. Tasks and Responsibilities • >(List task(s), approach(es) to be taken, responsibilities of all parties, deliverables):. Additional Effort & Fees Below is an estimate of the additional Itron hours and fees associated with the additional tasks outlined above. # Task Estimated Hours Estimated Fees (USD) 1 2 3 Totals *Unless specifically stated, excludes other direct cost (Expenses) Billing Information To ensure that Itron has all the correct billing information, please verify the following Client billing information: Billing Client Billing Contact Name >Insert billing contact name Billing Contact Phone # (s) > Insert billing contact phone # Billing Contact Email Address > Insert billing contact phone # Billing Address > Insert billing address Special Billing Requirements? > Insert if there are special billing requirements. > If unknown, make space in here (by pressing [Enter] key... ) so that the customer can handwrite instructions. PO # >Insert PO# (if there is one) IEE MDM SOIN - Denton TX (Al 01-28-10).docx Confidential Page 24 of 27 tF€^~ra Agreement I accept the noted terms and authorize commencement of the project described in this Statement of Work. Client Itron, Inc. Authorized Signature Authorized Signature <DO NOT SIGN - SAMPLE> Printed Name Title Date Please return this signed Change Order to: Itron, Inc. 2111 N. Molter Rd. Liberty Lake, WA 99019 Attn: Contract Administration Printed Name Title Date Fax: (509) 891-3331 or pdf and email to contract.request@itron.com - a fully executed version will be returned. IEE MDM SOW - Denton TX v1.101-28-10 .docx Confidenfial Page 25 of 27 Won -d Denton IEE MDM Std Implem Proj Plan v2, IEE MDM SOW - Denton TX (0.101-28-10).docx Confidential Page 26 of 27 This section provides a listing and definition of the key terms referred to in this document. Term Definition API Application Programming Interface BMR Business Management Review: BSD Business Solution Design document IEE Itron Enterprise Edition MDM Meter Data Management System SME Subject Matter Expert SOW Statement of Work TAD Technical Architecture Design document T's and C's Terms and Conditions UCE Universal Calculation Engine VEE Validation, Editing, Estimation Events / Alarms / Tampers IEE supports the import of any diagnostic events, alarms (including outage and restore) and tamper flags currently recorded by the meter and output as an event or alarm to the collection system. Events are typically delivered to IEE as part of a response to a scheduled read request. Alarms are typically delivered as they occur. Scheduled Read Request A "scheduled read" or "periodic read" request is the method by which interval reads, register reads and diagnostic event data is requested from AMI meters on a regularly scheduled basis. Readings requested via a Scheduled Read Request are intended to be validated by the MDM, permanently stored, and eventually distributed to other utility systems. IEE MDM SOW - Denton TX (Al 01-28-10).docx Confidential Page 27 of 27 Attachment C Insurance Requirements CITY OF DENTON INSURANCE REQUIREMENTS FOR CONTRACTORS Bidder's attention is directed to the insurance requirements below. It is highly recommended that bidders confer with their respective insurance carriers or brokers to determine in advance of Bid submission the availability of insurance certificates and endorsements as prescribed and provided herein. If an apparent low bidder fails to comply strictly with the insurance requirements, that bidder may be disqualified from award of the contract. Upon bid award, all insurance requirements shall become contractual obligations, which the successful bidder shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. As soon as practicable after notification of bid award, Contractor shall file with the Purchasing Department satisfactory certificates of insurance, containing the bid number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Contractors are strongly advised to make such requests prior to bid opening, since the insurance requirements may not be modified or waived after bid opening unless a written exception has been submitted with the bid. Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted: Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A-. • Any deductibles or self-insured retentions shall be declared in the bid proposal. • Liability policies shall be endorsed to provide the following: • Name as additional insured the City of Denton, its Officials, Agents, Employees and volunteers. • That such insurance is primary to any other insurance available to the additional insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims-made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of two years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted: [X ] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: • Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. Coverage B shall include personal injury. Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000.00 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: any auto, or all owned, hired and non-owned autos. [X] Workers Compensation Insurance Contractor shall purchase and maintain Worker's Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Worker's Compensation Commission (TWCC). [ ] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis, and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least combined bodily injury and property damage per occurrence with a aggregate. [ ] Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than each occurrence are required. [ ] Professional Liability Insurance Professional liability insurance with limits not less than per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than each occurrence are required. Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. 0 0 O Co 7 W co C) W D 00 N ~ N E *k E d O LL U Q 4 O 00 't 7t F ~ ~ ~ W o N o M M O O O O O O O M O 01 M 00 N O o O `r' O o O `n• 7t p O ~ ~ o > ~I O V U " cn w U W w ~ O ~ a i a O S ~ U OF cn O C 0 w = Lr) LfI O C N 0 C O 4, m Q a~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 DRAFT MINUTES PUBLIC UTILITIES BOARD July 12, 2010 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, July 12, 2010 at 9:45 a.m. in the Service Center Training Room, City of Denton Service Center, 901-A Texas Street, Denton. Present: Chair Dick Smith, Vice Chair Bill Cheek, Bill Grubbs, Phil Gallivan, and Barbara Russell. Ex Officio Members: George Campbell City Manager, Jim Coulter, Acting ACM Utilities Absent: Randy Robinson and John Baines, all excused OPEN MEETING: ITEMS FOR INDIVIDUAL CONSIDERATION: 3) Consider recommending approval of an ordinance accepting sealed proposals and awarding an Agreement for the purchase of a Meter Data Management Solution for the City of Denton, Texas (Denton Municipal Electric) in an amount not-to-exceed $330,030 (RFSP 44448 - Utility Meter Management Solution awarded to Itron, Inc.). Chair Smith asked Phil Williams if he is going to present this item as well and Williams stated that he was. Member Gallivan stated that in the meeting backup information it states that the AMI and smart meters will be collecting 15 minute interval data on a daily basis for all customers. He went further to ask, if this is excessive. Williams stated that ERCOT requests information on our electric load and this will provide the information to them. Russell asked if we have employees that go to the meters now and connect and disconnect. Williams stated that we do, every connect and disconnect has to be handled in person. This technology will eliminate the need for that contact. Smith asked if the Harris billing system cannot accommodate all of this information. Smith went on to ask if it is a weakness in the system, or if it wasn't designed to handle this information. Bryan Langley, Director of Finance, stated that we feel good about the Harris System. We have been through upgrades with this system and have had good success with connects and disconnects. This system isn't perfect but there isn't a system that will do everything that we are asking. Langley stated that we would prefer to have all the information on one system, but we are fine with the purchase of the new system. Member Grubbs asked if the customers will be charged for the new meters. Williams stated that they would not be charged. Draft Minutes of the Public Utilities Board meeting June 14, 2010 Page 2 of 2 1 Board Member Gallivan moved to approve item 3 with a second from Board Member 2 Russell. The motion was approved by a 5-0 vote. 4 The meeting was adjourned by consensus at 10:00 a.m. 5 AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Electric Metering Operations ACM: Howard Martin, 349-823*2 SUBJECT Consider adoption of an ordinance accepting sealed proposals and awarding an agreement for the purchase of an Advanced Metering Infrastructure System for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFSP 44485- Advanced Meter Reading Infrastructure System awarded to Trilliant Networks, Inc. in an amount of not-to-exceed $1,391,307.04). The Public Utilities Board recommends approval (5-0). BACKGROUND Currently DME is collecting meter readings by way of physically walking routes, automatic meter reading (AMR) via one way radio frequency (drive by), and one way power-line carrier. Our current meter reading system works great for collecting monthly billing reads. The electric industry is moving to a more automated system that will provide better service to customers. In 2008, the PUB and Council approved DME to install a pilot with Trilliant Networks, Inc.. The Trilliant Networks, Inc. system is a two-way automatic meter reading infrastructure (AMI) that will allow us to perform automatic connect/disconnection of electric services from a centralized office. After years of studying the different systems DME has determined the best solution for our system is a secure mesh network that allows meters to talk to each other in a `peering' arrangement: any meter can talk to any other meter (or to the central systems) either by talking directly, if within range, or else via one or more neighbors. Each meter in the network will forward messages to the next neighbor, until a path is achieved between the initiating meter and the target collector. This is generally referred to as `hopping'. This will enable Customer Service to be able to collect meter readings within seconds while working with the customer on the phone or in person. Future growth of power use in Texas may require load shedding and time of use programs. This system will tie into the new Milsoft outage notification system deployed by our systems operator. This system will allow for critical peak pricing, time of use and load control while providing services to customers with in-home displays, smart thermostats, allowing the customer to view and monitor their kWh usage. These features may become more common or potentially required in the power market. DME formed a committee to review and evaluate the submitted proposals. The committee consisted of representatives from Electric Metering, Electric Community Relations, Electric Communications, Technology Services, and Customer Service. The committee evaluation was based on "best value" with a possible score of 100%. Trilliant Networks, Inc. was selected as the vendor with the best overall proposal with a weighted average score of 95.65%. (Reference exhibit 1.) DME plans to convert all of its electric meters to a full AMI system over the next five years. For budgetary reasons DME plans to install meters with automatic disconnects predominately in high collection and high turn-over areas. In addition to the electric meters, DME is estimating that about 10% of its residential customers will want to take advantage of the in-home display, which will inform them of their current electrical usage. DME will study how best to implement and offer the in-home display as the AMI system is being deployed. OPTIONS 1. Award a contract for purchase of the AMI system to Trilliant Networks, Inc. 2. Do not purchase an AMI system. RECOMMENDATION DME recommends awarding the contract for purchase of an AMI system to Trilliant Networks, Inc. as the vendor with the highest evaluated score. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Public Utilities Board recommend approval at their July 12, regular meeting (0-0). FISCAL INFORMATION FY10 CIP budget accounts: 602324496.1350.3700 BID INFORMATION Responding Vendors: Trilliant Networks, Inc. Networks Itron, Inc. Landis + Gyr Elster Solutions HD Supply eMetric Sales Company EXHIBITS 1. Committee evaluation 2. Ordinance 3. Statement of Work 4. Agreement 5. PUB Meeting Minutes Respectfully submitted: Phil Williams General Manager of Electric Utilities Prepared by: Kyle Tunnell Meter Planner / Coordinator Q W 0 LO co d LL C O co co w N N E E O U Q~ O ~ M ~ 00 O N 7 O p 7t O O 0 7t 7t 7t ~n O O O v~ O ~n O O ~ N O O O O ,--i \O M M ~ O O ° O O ~n O v ~ N O O O O 7t O h r1l ~ 7t O O o o o O ° ~n ~ v~ ~ O ~ O ~ O O O O M O h ~ ~ ~ O O o o O 0 ° 0 ~O 0 ~ 0 0 0 0 N o ° ~n N v~ ~ O O O v'~ O O O O --i O Z W ~ 5 I ~ W C Q W O 1 O a C: L O U . 2 41 o z a cn UO C Q U U C O ~ (n 0 a Lu L 2 N 0 .1 ll~ Ln o M o O Ln L }J ; ; U : L U N N O C N L O Q O N Q Q C ; N N 4, U c C: N Q U 'a d LL ORDINANCE NO. 2010- AN ORDINANCE ACCEPTING SEALED PROPOSALS AND AWARDING AN AGREEMENT FOR THE PURCHASE OF AN ADVANCED METERING INFRASTRUCTURE SYSTEM FOR DENTON MUNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFSP 44485-ADVANCED METER READING INFRSTRUCTURE SYSTEM AWARDED TO TRILLIANT NETWORKS, INC. IN AN AMOUNT OF NOT-TO-EXCEED $1,391,307.04). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the purchase of an advanced metering infrastructure system in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and reviewed and recommended that the herein described proposal is the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request for Sealed Proposals" on file in the office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City, considering the relative importance of price and the other evaluation factors included in the request for proposals. RFSP NUMBER CONTRACTOR AMOUNT 44485 Trilliant Networks, Inc. $1,391,307.04 SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into formal written agreement(s) as a result of the acceptance, approval, and awarding of the proposal, the City Manager or his designated representative is hereby authorized to execute the written agreements; provided that the written agreements are in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents, which are herein approved and accepted. SECTION 4. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY v By: IT) Of DENTON Denton Municipal Electric Automated Metering Infrastructure (AMI) Statement of Work (SOW) for Phase 1 Contents gal Change Record., - 2 Acronyms 2 Definitions 2 Advanced Metering Infrastructure (AMI) Installation Project 2 Phase 1 Objectives 2 Trilliant Scope of Services 3 Trilliant Responsibilities for Phase 1 3 Head End System Implementation 3 Head End System Operations 3 Project Management Services 4 Meter and Network Equipment Procurement 4 Training 4 Support and Hosting Services 4 Roles and Responsibilities 5 Denton Responsibilities.. 5 Data/Resources 5 Project Management 5 Impacted Procedure/Process Assessment., 6 Documentation 6 Pricing 6 Signatures 8 Denton Corporation 8 Trilliant 8 Trilliant Confidential . \ _JLQ"L DENTON CLange Plllece r C))l i Date Author Version Change Reference 05/11/10 Trilliant - Garrett Johnston 1.0 06/10/10 Trilliant - Paul Karr 2.0 Added meters and network infrastructure to support Turtle replacement project 6/16/10 Trilliant - Paul Karr 3.0 Minor points of clarification, update performance metric to 98%, refine meter type detail and prices, add 3'd ProCare user license at no additional cost 6/17/10 Trilliant -Paul Karr 3.1 Finalized unit and total pricing details for meters Acronyms AM] Advanced Metering Infrastructure WAN Wide Area Network NAN Neighborhood Area Network MDM Meter Data Management HAN Home Area Network VPN Virtual Private Network NIC Network Interface Card Definitions HES Head End System NAN Neighborhood Area Network WAN Wide Area Network Advanced Metering Infrastructure (AMI) Installation Project The Denton Municipal Electric (DME) Advanced Metering Infrastructure (AMI) project is a five-year project to convert reading of electric meters to the Trilliant SecureMesh Network that includes tiers for the Wide-Area Network (WAN)/backhaul, Neighborhood Area Network (NAN) and Home Area Network (HAN). The project is proposed to begin in July 2010 with planned completion by June 2015. The project will involve multiple phases that align with Denton fiscal years that run from October 1 through September 30. Phase 1 Objectives This Statement of Work document is focused on Phase I of the project that is expected to be completed within 3 months or less. The objectives of Phase 1, which will run from the date of contract signing (tentatively set for July 21, 2010) to September 30, 2010, will be to: 1. Re-connect the previous pilot environment at DME initially utilizing Trilliant hosting facilities for the head end system 2. Focus on preparation for full deployment of the Trilliant network including communications and IT components 3. Delivery of meters and network equipment to be used for Turtle replacement initiative (note that while Trilliant will be pursuing best effort in delivery of all equipment by Sept 30, 2010, lead times to be confirmed upon final release of orders) Trilliant Confidential DENTON Trilliant Scope of Services Specifically, Trilliant will provide the following services during Phase 1: ~~l 111 i 1. Re-connect the pilot environment including the following components previously installed at DME a. Trilliant SecureMesh Network (including collectors) and Verizon cellular backhaul of approximately 500 electric residential meters with under the cover disconnects and commercial meters used for pilot b. Host UnitySuite/SerViewCom (SVC) head end system at Trilliant headquarters in Redwood City, Calif. 2. Deliver document with comprehensive design of the complete SecureMesh Network (WAN, NAN and HAN) throughout the Denton Municipal Electric certificated service territory 3. Operate the Trilliant solution on a daily basis to ensure the ensure data is available for 98% of meters by 9 AM Pacific Time the following day. 4. Work with Denton to plan for full rollout including: a. Assessment of optimal approach for upgrading to current versions of system components b. Training on installation of at least one piece of each type of hardware component to provide experience for installers and develop standard processes Trilliant Responsibilities for hale Trilliant shall provide and be responsible for the following tasks and services as part of the Denton AMI project: Head End System Implementation Trilliant will host UnitySuite AMI software during Phase 1. (The head-end system will be transitioned to a Denton- owned and -operated system in a later phase). For Phase 1, Trilliant will provide the UnitySuite AMI software solution (also known as SerViewCom) including hardware (servers, routers, etc.) and third-party software infrastructure with Internet connectivity. Trilliant will also provide the following services: Setup, and configure UnitySuite AMI system o Configure network components required to support initial 500 meters installed at Denton into UnitySuite AMI software o Establish initial set up of account data in UnitySuite based on a file provided by Denton specifying meter ids and account numbers o Set up of Trilliant standard exports. This does not include development of new exports. o Confirm electric meters properly associate to Head End System Functional testing of the implemented system including o Event testing - Outage, Tamper etc. o Connectivity with installed Trilliant system components o Remote Disconnect functionality o Required Data Extracts Migration of data from previous system is not included in this scope. Conduct requirements gathering workshop with customer on site to determine configuration requirements for full system rollout and document results. Head End System Operations For the period of July 5 to September 30, 2010, Trilliant will operate and monitor the system to meet the defined SLA requirements including: • Monitoring of system performance • Investigation of system anomalies • Scheduled reports are received by time specified by client Trilliant Confidential DENTON • Data Extract files are being sent successfully • Trouble tickets are handled within specified time lines of the support contract • Trouble tickets are logged and reported on (daily, weekly, monthly as specified by client) Project Management Services Kyle Lehman will serve as the project director responsible for Trilliant's portion of the project. Mr. Lehman will lead Trilliant project management services including: • Ensure collaboration as needed for a successful delivery of Phase 1 • Submit Trilliant deliverables based on the most-current, approved Denton project plan with authorization to provide approvals and escalation as required • Request information necessary to order and configure network and meter products for Denton • Attend status calls with Denton including network and meter performance debriefs • Create with client success criteria for Phase 1 • Provide weekly status reports including o Tracking of time and expenses o Status of deliverables per the most-current, approved project plan • Coordinate and escalate with Trilliant executives and resources as appropriate • Assist in tracking and managing issues • Support change control • Develop and maintain the detailed project plan, which will be reviewed at weekly status meetings to ensure the schedule is achieved Meter and Network Equipment Procurement Trilliant will provide procurement and integration services for Phase 1 including the following activities: • Manage the network equipment ordering. • Ensure that meter and module configurations are consistent and accurate. • Serve as the single point-of-contact for manufacturing, delivery and failure issues. • Upgrade equipment as required to current firmware levels. Training Trilliant will provide during Phase 1 the following training-related items: • Courses o User training for UnitySuite AMI software (also known as SerViewCom) o Use of ProCare field tool o Field installation of Hardware including meters and collectors • Documentation o Electronic copies of presentations, user guides and other documentation covered in the training course. Support and Hosting Services Trilliant will provide the following initial services and ongoing support as part of Phase 1: • Configure Denton's network equipment in the hosted system. • Provide initial configuration of operations reports for users and facilitate questions on standard data exports. • Create trouble tickets based on Denton's requested investigations for all field devices during the project • Provide return material authorization (RMA) as required for inoperable or damaged equipment during the project. Trilliant Confidential DENTON Ji • Provide an online trouble ticket site and support procedures to submit and track any new or outstanding issues. • Follow Trilliant's standard service levels to support ticket resolution (as noted in the Trilliant-Denton contract.) • Provide Telecommunications network requirements including connectivity and equipment at the Trilliant Redwood City, Calif. facility to enable VPN connectivity to the Denton facility. • Provide End-to-End Connectivity Validation Report including continual validation of end-to-end connectivity for all meters connected to the network. • Provide user documentation for the UnitySuite Head-End, ProCare software applications, network equipment and meter specifications. Roles and Responsibilities The following table outlines resources proposed for Phase 1 of the Denton project. Final determination of resources will be determined following contract signature based on availability of Trilliant resources. Title Responsibility Project Director Overall project managing, scheduling, customer point of contact Sr. Architect / Subject Matter Expert Specialized support for impementation design Network Architect Network Design Network Planner Network design support and deployment planning System Integration Lead System deployment planning lead System Integration Analyst System deployment delivery Training Technical Consultant Training development and delivery Services Assurance Analyst System operations monitoring and reports Denton Responsibilities Data/Resources Denton will provide the following to Trilliant during Phase 1: • Data o Locations of all meters and other assets that will be read by the network and other asset-related information required for network designs o WAN "hard wired" locations o Data file of service locations (meter service addresses and service pole locations) • Resources including field and office personnel to meet the Denton Detailed Project Plan • Hardware including a router to support the VPN as well as all facilities required to backhaul data from Trilliant Gateways to the Head End. Project Management Denton will provide the following project management resources: Trilliant Confidential DENTON )l • Designated project manager with authorization to provide approvals on Trilliant work and assist Trilliant in facilitating and escalating as required across Denton to ensure successful delivery of project. • Weekly status meetings with project participants, and monthly executive reviews. • Training site to conduct training. • Prompt review and management of approval process within Denton for SOW requests that may be submitted to support mutually identified areas of additional work for Trilliant. • Development and maintenance of the project plan, with input from Trilliant. Impacted Procedure/Process Assessment DME will: • Develop the network and meter equipment installation/removal procedures with support from Trilliant. Final standards and procedures will be approved jointly between Denton and Trilliant. • Develop asset management processes associated with the NIC/infrastructure equipment tracking. • Update call center processes to address customer questions. Documentation DME will, as required, document: • Updates of the mapping system with installed network equipment • Installation standards for field devices rfdl iii Title 2010 Rate Discount Discounted Rate Project Director $ 2,000.00 15% $ 1,700.00 Sr. Architect / Subject Matter Expert $ 2,000.00 15% $ 1,700.00 Network Architect $ 2,000.00 15% $ 1,700.00 Network Planner $ 1,350.00 15% $ 1,147.50 System Integration Lead $ 1,500.00 15% $ 1,275.00 System Integration Analyst $ 1,350.00 15% $ 1,147.50 Training Technical Consultant $ 1,350.00 15% $ 1,147.50 Services Assurance Analyst $ 1,200.00 15% $ 1,020.00 The following table reflects the meter mix and quantities to be included within this Phase I order. Item Fm Class V Res/ With With Meter With Meter Unit Extended Com Disc Demand Type Batt Qty Price Price Switch 1 2S 200 240 Res YES NO AX SD No 5592 $140.12 $ 783,551.04 2 2S 200 240 Res/ NO NO AL No 320 $ 65.12 $ 20,838.40 Com Trilliant Confidential EN 110 C,/c))) 3 2S 200 240 Res/ NO YES AX Yes 16 $141.14 $ 2,258.24 Com 4 4S 20 240 Res/ NO YES AX Yes 12 $155.86 $ 1,870.32 Com 5 9S 20 120 Com NO YES AX Yes 4 $230.05 $ 920.20 277 Wide Range 6 16S 200 120- Com NO YES AX Yes 4 $230.05 $ 920.20 277 Wide Range 7 2S 320 240 Res/ NO YES AX Yes 4 $154.36 $ 617.44 Com 8 12S 200 120- Com NO YES AX Yes 4 $230.05 $ 920.20 277 Wide Range Totals 5956 $ 811,896.04 Pricina Summa Network Infrastructure and Meters Quantity Unit Price Extended Price SecureMesh WAN Gateway 2 $15,200.00 $30,400.00 SecureMesh Extender Bridge 18 $6,444.00 $115,992.00 SecureMesh Power Service Unit 20 $650.00 $13,000.00 Mounting Kit for Gateway and Extender 20 $435.00 $8,700.00 SecureMesh Repeater 27 $497.00 $13,419.00 SecureMesh Meters 5956 mix $ 811,896.04 SecureMesh USB Radio 2 $150.00 $300.00 Services* $175,000.00 Software Licenses (UnitySuite Metering, 3 ProCare licenses) $185,500.00 Software Maintenance and Support Services (discounted and extended through 9/30/2011) $37,100.00 Total $1,391,307.04 Notes: 1. The services total is based on estimated resource requirements 2. Trilliant will not charge for hosting service during Phase 1. During Phase 1, Denton and Trilliant will work together to confirm Denton's requirements for support of production rollout and then work together to arrive at payment agreement for hosting services beyond Phase 1. 3. Network infrastructure quantities are estimates based on a preliminary analysis of the territory and location data provided for the Turtle metes. Final network quantities and location selection shall occur through network design phase of project. Trilliant Confidential 7 o~ DENTON Signatures The City of Denton, Texas A Texas Municipal Corporation By: _ Name: Title: Date: ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: By: ))l ANITA BURGESS, CITY ATTORNEY Trilliant Networks, Inc. By: '41 , Z/ Name: Andrew C. White Title: President. Chief Executive Officer Date: b' 3b'I v Trilliant Confidential 8 AGREEMENT FOR ADVANCED METERING INFRASTRUCTURE ("AMI") PROJECT BETWEEN THE CITY OF DENTON, TEXAS (Denton Municipal Electric) AND TRILLIANT NETWORKS, INC. A Delaware Corporation Dated: 063010 Trilliant Confidential AGREEMENT FOR ADVANCED METERING INFRASTRUCTURE ("AMI") PROJECT THIS AGREEMENT FOR ADVANCED METERING INFRASTRUCTURE ("AMI") PROJECT, and associated services ("Agreement") is made and entered into as of June 30, 2010 (the "Effective Date") by and between The City of Denton, Texas, a Texas municipal corporation, having its principal offices located at Denton City Hall, 215 East McKinney Street, Denton, TX 76201 ("Custorner"); and TRILLIANT NETWORKS, INC. a Delaware corporation, having its principal office located at 1100 Island Drive, Redwood City CA 94065 ("Trilliant"). From time to time throughout this Agreement, Customer and Trilliant are referred to, individually, as a "Party," and, together, collectively as the "Parties." RECITALS WHEREAS, the Parties have entered into this Agreement for the purpose of setting forth the general terms and conditions for a program under which Trilliant shall provide an Advanced Metering Infrastructure consisting of products and related enabling equipment, services and software as provided in the Statement of Work, attached as Exhibit 1.1 (the "Deliverables") and as further specified herein; together with such other work as the Parties may agree to from time to time in accordance with the terms of this Agreement; WHEREAS, the Deliverables may include, without limitation, providing information technology equipment, materials, software, programming materials, hosting services, installation services and other related items or services to be provided to support the Customer's objective of establishing an Advanced Metering Infrastructure, and; WHEREAS, Trilliant represents that it has the expertise in the aforementioned areas including the design, development, creation, testing, delivery and deployment of information technology systems, provision of hardware, equipment, materials, hosting services, installation services, maintenance, communication services and other related services, items and tasks necessary to undertake the Deliverables; WHEREAS, each task, undertaking, delivery, or project that Customer desires Trilliant to undertake shall be defined in a separate Statement of Work signed by the Parties to this Agreement in a form which is attached as Exhibit 2.1; WHEREAS, additional terms and conditions for Software Licenses, Maintenance and Support, and Hosting Services incorporated in this Agreement are set forth respectively in Exhibits 3.1, 4. 1, and 5.1; NOW, THEREFORE, in consideration of the mutual promises and obligations contained herein, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, agree as follows: 1. DEFINITIONS Definitions Exhibit 1.1, attached hereto and hereof made a part, defines various terms used throughout this Agreement. 2. TERM This Agreement shall remain in effect until terminated by either party pursuant to Article 11. Trilliant Confidential Page 2 3. AGREEMENT TO PROVIDE SERVICES; CONFIDENTIAL INFORMATION 3.1 Retention. Each task, undertaking, delivery, or project that Customer desires Trilliant to undertake shall be defined in a separate Statement of Work signed by the Parties to this Agreement a form of which is attached as Exhibit 2.1. Each such Statement of Work shall be effective upon execution and shall thereafter become a part of this Agreement and subject to the payments in Article 6. 3.2 Multiple Retentions. This Agreement contemplates the possibility that Customer may retain the services of Trilliant on more than one occasion for more than one project ("Project"). In each such instance, the Parties will jointly negotiate and develop a Statement of Work with a corresponding Purchase or Purchase Orders covering the Deliverables to be performed by Trilliant for each Deliverable. 3.3 Requests for Change. From time to time during the duration of this Agreement, in the event that Customer desires to change the scope of an issued Statement of Work, Customer will issue to Trilliant a written request to retain Trilliant (each, a "Request for Change"). In each instance, upon receipt of such written notification, Trilliant will have the time period stated on such written notification, or, if no time period is mentioned, a reasonable period of time, within which to respond to Customer's Request for Change. The Customer is not obligated to issue any Purchase Order Requests or to accept any proposals or offers made by Trilliant. 3.4 Order of Precedence. For all Deliverables governed by this Agreement, in the event any conflict arises between the terms of this Agreement and those of the associated Statement of Work or other contract documents, the terms of this Agreement shall govern, unless reference to a specific conflict is made in the Statement of Work with language indicating that the terms of the Statement of Work are to have precedence over the expressly identified conflicting term in this Agreement. 3.5 Confidentiality and Non-Disclosure. 3.5.1 Obligations of Confidentiality Non-Use. Each Party (in such capacity, the "Receiving Party") acknowledges and agrees to maintain the confidentiality of Confidential Information (as hereafter defined) provided by the other Party (in such capacity, the "Disclosing Party") hereunder or under any Statement of Work. The Receiving Party shall not disclose or disseminate the Disclosing Party's Confidential Information to any Person other than those employees, agents, contractors, subcontractors and licensees of the Receiving Party, or its affiliates, who have a need to know same in order to assist the Receiving Party in performing its obligations, or to permit the Receiving Party to exercise its rights under this Agreement or any Statement of Work. In addition, the Receiving Party (a) shall take all reasonable steps to prevent unauthorized access to the Disclosing Party's Confidential Information, and (b) shall not use the Disclosing Party's Confidential Information, or authorize other Persons or entities to use the Disclosing Party's Confidential Information, for any purposes other than in connection with performing its obligations or exercising its rights hereunder and/or under any Purchase Order Request and its associated Statement of Work. As used herein, "reasonable steps" means steps that a Party takes to protect its own, similarly confidential or proprietary information of a similar nature, which steps shall in no event be less than a reasonable standard of care. Trilliant Confidential Page 3 3.5.2 Definition of Confidential Information. The term "Confidential Information," as used herein, shall mean all business strategies, plans and procedures, proprietary information, software, tools, processes, methodologies, data and trade secrets, and other confidential information and materials, in whatever form or media, of the Disclosing Party, its affiliates, their respective clients or suppliers, or other Persons or entities with whom they do business, that may be obtained by the Receiving Party from any sources or that may be developed as a result of this Agreement. Trilliant acknowledges and agrees, and without limiting the foregoing, that Customer's Confidential Information shall include all data and information, in whatever form, regarding the Customer's customers. 3.5.3 Exclusions. The provisions of this Article respecting Confidential Information shall not apply to the extent, but only to the extent, that such Confidential Information is: (a) already known to the Receiving Party free of any restriction at the time it is obtained from the Disclosing Party; (b) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (c) is or becomes publicly available through no wrongful act of the Receiving Party or any third party; (d) is independently developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party; or (e) is required to be disclosed pursuant to any applicable law, rule, regulation, government requirement or court order, or the rules of any stock exchange (provided, however, that the Receiving Party shall advise the Disclosing Party of such required disclosure promptly upon learning thereof in order to afford the Disclosing Party a reasonable opportunity to contest, limit and/or assist the Receiving Party in crafting such disclosure). Nothing in this Article shall be construed as restricting Customer's rights with respect to any Deliverable as provided for Customer's business purposes, and for the business purposes of Customer's subsidiaries and affiliates. 3.5.4 Recipient's Employees and Others. The Receiving Party shall advise its employees, agents, contractors, subcontractors and licensees, and shall require its affiliates to advise their employees, agents, contractors, subcontractors and licensees, of the Receiving Party's obligations of confidentiality and non-use under this Article, and shall be responsible for ensuring compliance by its and its' affiliates employees, agents, contractors, subcontractors and licensees with such obligations. The Receiving Party shall promptly notify the Disclosing Party in writing upon learning of any unauthorized disclosure or use of the Disclosing Party's Confidential Information by such Persons or entities. 3.5.5 Return or Destruction of Confidential Information. Upon the Disclosing Party's written request following the completion or termination of any Purchase Order Request, and its associated Statement of Work, the Receiving Party promptly shall return to the Disclosing Party, or destroy, all Confidential Information of the Disclosing Party provided under or in connection with such Statement of Work, including all copies, portions and summaries thereof. Notwithstanding the foregoing sentence, (a) the Receiving Party may retain one copy of each item of the Disclosing Party's Confidential Information for purposes of identifying and establishing its rights and obligations under this Agreement, and (b) Customer may retain Confidential Information of Trilliant to the extent that such information is necessary or desirable in connection with Customer's use of any Deliverables as permitted hereunder; provided, however, that in either case all such Confidential Information retained by the Receiving Party shall remain subject to the provisions of this Article for so long as it is so retained. If requested by Trilliant Confidential Page 4 Disclosing Party, the Receiving Party shall certify in writing its compliance with the provisions of this Article. 3.5.6 Injunctive Relief. In addition to any other remedy a Party may have under this Agreement, in the event of any breach or potential breach of a Party's non- disclosure obligations under this Section 3.5, the Disclosing Party shall be entitled to seek injunctive relief and, in connection with such relief, shall not be required to show the inadequacy of money damages or be required to post a bond. 3.5.7. Applicability of Texas Government Code, Sections 551.086 and 552.133. The Parties agree and stipulate that the two above statutory provisions of the Texas Government Code, as amended, shall apply to any materials claimed as "proprietary" or "confidential" by either Party. Customer represents that all materials included in this Agreement are also subject to the provisions of the City of Denton, Texas "Competitive Matters Resolution" enacted by the Denton City Council on April 18, 2000, as Resolution No. R2000-15. 4. DEVELOPMENT COORDINATION; PERSONNEL 4.1 Project Manager. Customer and Trilliant shall each designate in writing to the other a responsible individual with adequate authority as such Party's Project Manager for the applicable Deliverables (each such individual a "Project Manager," and together, collectively, the "Project Managers"), whose responsibility it is to serve as a Project leader and interface with the other Party hereto. 4.1.1 The Project Managers shall be the primary non-technical contact between the Parties relative to the Deliverables. The Project Managers will be responsible for identifying non-technical issues, including schedule adherence, Change Order Requests, progress reporting and/or other non-technical matters and bring them to the attention of their respective managements. 4.1.2 Customer's Project Manager is responsible for providing such information about Customer, its external and internal procedures and such other information as Trilliant reasonably requires for its provision of the Services. 4.1.3 Trilliant's Project Manager is responsible for coordinating Trilliant's obligations and duties with respect to the Services and shall be fully qualified, knowledgeable and experienced in the actual design, installation, implementation and launch of systems and associated Deliverables contemplated by this Agreement. Trilliant's Project Manager is authorized to sign Change Orders on behalf of and binding upon Trilliant. 4.1.4 The Project Managers shall have no authority to amend, modify or otherwise change this Agreement, and shall work closely with and oversee their respective Technical Coordinators. 4.1.5 The Project Managers shall communicate with each other on a regular periodic basis to assure the smooth administration of the development process and the coordination of activities between the Parties. Trilliant Confidential Page 5 4.1.6 Promptly upon their respective appointments, each of the Project Managers shall establish contact and mutually develop guidelines for accomplishment of the development goals. 4.2 Technical Coordinators. Each Party shall appoint an individual on their respective behalf who has a technical background for purposes of coordinating communication with his or her counterpart for the other Party on a regular basis with respect to the technical aspects of the Deliverables under this Agreement (each a "Technical Coordinator"). The Technical Coordinators will be responsible to identify technical issues and bring them to the attention of their respective Project Manager. The Technical Coordinators shall have no authority to amend, modify or otherwise change this Agreement and shall report to their respective Project Manager. 4.3 Project Coordination. The following shall apply for all Deliverables under this Agreement: 4.3.1 Coordination and Communication. The Project Managers shall communicate and meet where and when necessary to ensure that the Deliverables are properly performed in a timely manner. The Project Managers shall involve the Technical Coordinators from each organization, as necessary. 4.3.2 Changes to Deliverables. The Parties understand and expect that there may be changes to the Deliverables. In each instance, requests for changes (each a "Change Order") shall be proposed by the Project Managers or the Technical Coordinators, but shall not be effective without the Customer issuing a Change Order Request. Changes to Deliverables shall only be made by following the Change Order Procedure. 4.3.3 Project Timetable and Scheduling. For all Deliverables, the Project Managers and Technical Coordinators of each Party shall establish a target timetable for achievement of milestone goals for the corresponding Project. 5. PROJECT SCHEDULE 5.1 All Deliverables shall be performed in accordance with a published project schedule incorporated into the applicable Statement of Work. Within a mutually agreed upon timeframe, but not more than ninety calendar days of executing this Agreement, Trilliant shall deliver to the Customer's Project Manager a project schedule. Project schedules shall contain critical milestone dates as mutually determined by Customer and Trilliant. 5.2 The Project Schedules shall fully describe the sequence of activities and plan of operation for performing the Deliverables. 5.3 The Project Schedules shall be supported by such data and documentation as Customer reasonably deems appropriate and shall be revised and updated in accordance with this Agreement to reflect the status and progress of the Deliverables. 5.4 The Project Schedules shall include, at a minimum: 5.4.1 the order in which Trilliant proposes to perform the Deliverables; 5.4.2 the start and completion dates of the Deliverables; Trilliant Confidential Page 6 5.4.3 the dates of order, receipt, and delivery of significant portions and/or components of Deliverables; 5.4.4 the dates for the submittal and approval of drawings or data, testing and inspection dates; and 5.4.5 the project milestone dates, personnel forecasts by individual craft and non- manual personnel, turnover dates for final reports and other details, dates, or information Trilliant deems appropriate, including schedules for Deliverables procurement and drawing submissions. 5.5 Trilliant shall be responsible to ensure that all Deliverables, including that of its Subcontractors, as well as work performed by others that may affect Trilliant's Deliverables, is included on the Project Schedules. 6. COMPENSATION AND PAYMENTS 6.1 With regards to any Deliverable(s), Trilliant's compensation and Payment Schedule shall be as follows: 6.1.1 Unless otherwise agreed by the Parties, in writing, in a Statement of Work the payment and invoice schedule shall consist of a percentage of the value of the Statement of Work being payable at the time of issuance of the Statement of Work with the remainder payable according to the milestones set forth in the applicable Statement of Work. 6.1.2 Unless otherwise agreed to by the Parties in the applicable Statement of Work, all payments under this Agreement are net due thirty (30) days from the date of receipt of invoice or receipt of goods by Customer whichever is later. 6.1.3 Unless otherwise agreed to by the Parties in the applicable Statement of Work, Customer shall reimburse Trilliant for its expenses incurred as to a Project, provided: 6.1.3.1 Unless otherwise stated in the Statement of Work, expenses must be presented to Customer for its review. For any and all such expenses to be approved by Customer, expenses shall be reasonable, actual and verifiable. To the extent that Customer reimburses Trilliant for any out-of- pocket expenditures directly relating to providing Deliverables to Customer under this Agreement, such expenditures shall be passed through to Customer at actual cost. 6.1.3.2 To be eligible for reimbursement, expenses must be incurred by Trilliant in connection with its performance hereunder and must be properly documented with receipts provided; provided, however, that Trilliant shall be responsible for travel expenses relating to Trilliant's internal operations that are not directly related to performing Trilliant's obligations hereunder, including, without limitation, account management, meetings and seminars. Expenses incurred by Trilliant's management not assigned to the work are considered "cost of doing business" and are not to be submitted to Customer for reimbursement. This typically includes, but is not limited to, costs relating to activities of Trilliant's senior managers, partners and vice presidents in their respective capacities as same. If Trilliant Confidential Page 7 Trilliant does not provide receipts in the manner detailed above, Customer retains the right to refuse payment for such expenses. 6.1.4 Unless otherwise agreed to in writing by the parties, invoices shall be submitted as follows: 6.1.4.1 For Hardware, 100% of the Hardware price shall be invoiced upon Customer's receipt of goods. 6.1.4.2 For Software and Software-related management and services, 50% of one-time license fees shall be invoiced upon the signing of a software license agreement, the remaining 50% of one-time license fees shall be invoiced upon commissioning of head-end software at the City of Denton facilities, but not later than June 30, 2011. 6.1.4.3 If Services are provided on a time and materials basis then invoices shall be submitted up to bimonthly as Services and costs are incurred. 7. TAXES 7.1 Because the Customer is a tax-exempt entity, sales, use, excise, value-added and ad valorem taxes do not apply to any deliverables involving the Customer. 7.2 In no event, however, shall Customer be responsible for or reimburse Trilliant or any of its Subcontractors for any corporate franchise, net income, local taxes or other taxes imposed upon Trilliant, including Subcontractors, for the general privilege of conducting business, on income or receipts, or any other such tax. 7.3 In the event any taxing authority or governmental entity notifies Trilliant that the amount owed for taxes arising out of the Deliverables is incorrect and the responsibility of Customer, Trilliant shall: (a) provide prompt Written Notice to Customer of same together with all returns and documentation pertaining thereto, with full particulars provided by Trilliant to Customer; (b) keep Customer apprised in a timely manner of the status of the matter; and (c) refrain from settling or otherwise resolving the dispute or claim with the taxing authority or governmental entity without Customer's prior written consent. 8. INTELLECTUAL PROPERTY 8.1 "Intellectual Property" means know how, methods, processes, techniques, proprietary information, specifications, protocols, schematics, diagrams, inventions (whether or not patentable), apparatuses, hardware, tools, devices, formulae, algorithms, software, software code (in any form including source code or executable code), user interfaces, and other forms of technology. 8.2 "Intellectual Property Rights" means all rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trade secret rights; (c) patent and industrial property rights; (d) other proprietary rights in Intellectual Property of every kind and nature; and (e) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (d) of this sentence. Customer requires that Trilliant, prior to closing this transaction discloses, with a letter signed by its legal counsel setting forth all causes of action that are now pending or on appeal regarding any Intellectual Property Rights referenced in subparagraphs 8.2 (a) through (e) hereinabove. Trilliant Confidential Page 8 8.3 Existinq Intellectual Property. Trilliant will have and retain exclusive ownership of all Trilliant Intellectual Property owned by Trilliant on the Effective Date (collectively, " Trilliant's Existing Intellectual Property"), and Intellectual Property Rights therein, and Customer will have and retain exclusive ownership of all Customer Intellectual Property owned by Customer on the Effective Date and all Intellectual Property Rights therein (collectively, "Customer's Existing Intellectual Property"). 8.4 Improvements to Intellectual Property. Notwithstanding any other provisions in this Agreement, as between the Parties, Trilliant shall own and retain all right, title, and interest in and to any and all Intellectual Property in any improvement, enhancement, change or modification, including but not limited to derivative works, to any Existing Intellectual Property (whether made by Trilliant and/or Customer) ("Improvements"), and Customer hereby sells, releases, quitclaims, and assigns to Trilliant all the rights, title, interest, claim, or demand, that Customer has, or may have, in any such Intellectual Property. Customer shall not disclose or distribute the Improvements or any Intellectual Property therein, to any third party person or entity unless expressly authorized to do so in this Agreement or with Trilliant's prior written consent. Trilliant hereby grants Customer a non-assignable, non-transferable, non-exclusive, irrevocable license to use only for internal business purposes all Improvements that are based on Customer's Existing Intellectual Property. 9. REPRESENTATION, WARRANTIES AND COVENANTS 9.1 Hardware. Trilliant warrants to Customer for a period of twelve (12) months from the date of installation of the hardware, not to exceed eighteen (18) months from the date of shipment, that hardware designed and/or manufactured by and provided by Trilliant or its Subcontractors, shall be free from defects in material, workmanship and title, and services shall be performed in a competent, diligent manner in accordance with any mutually agreed specifications. Repairs or replacements of Hardware made during the warranty period or thereafter will be warranted for sixty (60) days or the remainder of the original warranty period whichever is longer. 9.2 Software. Under the software license agreement Trilliant warrants to Customer for a period of ninety (90) days from the date of initial installation of the software that the Software will substantially conform to Trilliant's published specifications. Trilliant does not warrant uninterrupted or error-free operation of the software nor that functions contained in Software will operate to meet Customer's requirements, nor that Trilliant will correct all software defects. Software maintenance and support services shall be provided under the annual maintenance and support agreement. 9.3 Services. Trilliant warrants to Customer that services shall be performed in a competent, diligent manner in accordance with any mutually agreed specifications. Said warranty shall be for a period of one hundred eighty (180) days from the date of completion of the services. 9.4 Third-Party Hardware or Software. In the case of products not of Trilliant's own manufacture or development, the only warranty available is the warranty that the original manufacturers provide, and Trilliant gives no warranty on behalf of the manufacturers of such items. Trilliant Confidential Page 9 9.5 If Hardware, Software, or Services do not meet the above warranties, Customer shall promptly notify Trilliant in writing within the applicable warranty period. Trilliant shall thereupon: 9.5.1 For Hardware, Trilliant's sole obligation under these warranties is limited to, at its option, replacing with similar or better performing product or repairing any Hardware which is returned to Trilliant. At Customer's expense, Customer shall remove and ship to Trilliant any such nonconforming items and shall reinstall the repaired or replaced parts. Trilliant will return any Hardware to Customer, freight prepaid. At its expense, Customer shall reinstall the repaired or replaced parts. 9.5.2 For Software, as provided for within the Maintenance and Support agreement, and as the sole remedy, Trilliant will provide a method for Customer to report the failure and Trilliant will, at its reasonable discretion provide a suitable fix, patch or workaround for the problem, which may be included in a future Software release. 9.5.3 For Services, Trilliant will re-perform the defective services until such time as the problem is cured. 9.6 Warranty Limitations. These warranties and remedies shall be null and void if: 9.6.1 For Hardware (including repaired or replacement parts), (a) improper storage, installation, operation, and maintenance of the Hardware, non-conformance with the proper operation instruction manuals provided by Trilliant or its suppliers or subcontractors, (b) Failure of Customer to keep proper records of operation and maintenance during the warranty period and failure to provide Trilliant access to those records, (c) operation outside the environmental specifications, including but not limited to lightning damage, adverse RF environments (d) product that has been determined as being stolen or scrapped, (e) if the unit has been purchased from a third party or (f) repairs performed or alterations or modifications made except by Trilliant. 9.6.2 For Software, (a) alteration or modification of the Software except by Trilliant or in accordance with its instructions; (b) Software used in conjunction with another Trilliant's product resulting in the defect, or (d) Software damaged by improper environment, abuse, misuse, accident or negligence. 10. 9.7 THE WARRANTIES EXPRESSED IN THIS ARTICLE 9 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND OF ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART OF TRILLIANT. IN NO EVENT WILL TRILLIANT BE LIABLE FOR DIRECT OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION LOSS OF REVENUE, LOST PROFIT, ETC., EVEN IF TRILLIANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MUTUAL REPRESENTATIONS 10.1 Each Party represents to the other that: 10.1.1 It has the requisite power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement; and Trilliant Confidential Page 10 10.1.2 The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by the requisite action on the part of such Party. 10.1.3 Its execution, delivery, and performance of this Agreement will not constitute: (a) a violation of any judgment, order, or decree; (b) a material default under any material contract by which it or any of its material assets are bound; or (c) an event that would, with notice or lapse of time, or both, constitute such a default as described in (b), above. 11. TERMINATION 11.1. Right to Terminate. This Agreement may be terminated without prejudice (except as provided in Section 11.1.1), by either party as follows: 11.1.1 Convenience. After the first anniversary date of this Agreement, for any reason upon sixty (60) days prior written notice with the exception that open purchase orders are non-cancellable absent express agreement by Trilliant. 11.1.2 Breach. Upon breach of a material provision by the other party and such party does not cure such breach within thirty (30) days after written notice received from the terminating party. 11.1.3 Insolvency. Immediately should the other party (a) become insolvent; (b) make an assignment for the benefit of creditors; (c) file or have filed against it a petition in bankruptcy or seeking reorganization; (d) have a receiver appointed; (e) institute any proceedings for liquidation or winding up. 11.1.4 Effect of Termination. Termination of this Agreement shall not affect the parties' indemnification obligations under Article 11 -or any other right or obligation that by its terms survive, or impair any claim for payment that has accrued before or accrues by virtue of termination. All accepted Purchase Orders shall survive any termination unless otherwise mutually agreed to by the parties. 12. INDEMNIFICATION. 12.1 In General. Trilliant shall indemnify, defend and hold harmless the Customer and its officers, agents, and employees, against any claim for personal injury, property damage, or wrongful death arising out of or resulting from any products or services furnished by Consultant or the employees, agents, or subcontractors of the Consultant, in the performance of this Agreement; provided, that Consultant's obligation to indemnify, defend and hold harmless, as aforesaid, shall not apply to any claim arising out of or resulting from the sole negligence or willful misconduct of Client, its officers, agents or employees. 12.2 Intellectual Property Rights. Trilliant will defend any action, including a claim or suit, against Customer, its officers and employees, claiming that Products of its original manufacture or its Software infringes any Intellectual Property Rights, and will indemnify and hold Customer, its officers and employees free and harmless from and against all costs and damages awarded in any such action, provided that Trilliant is notified promptly in writing of the action and at Trilliant Network's request and at its expense is given control of such action and all reasonably requested information and assistance to settle or defend the Trilliant Confidential Page 11 same. Should use of Products or Software be enjoined as a result of such action, then Trilliant shall, within a reasonable time, which in no event is a period of in excess of sixty (60) days from the date of injunction, either: (a) obtain for Customer the right to continue to use the Product or Software; (b) modify or replace the Product or Software with non- infringing equipment or software; provided that the replacement equipment or software substantially conforms to Trilliant Network's then-current specification for the Product or Software; or (c) request the return of the Product or Software and upon its return refund the value of the Product or Software as amortized over a presumed ten (10) year straight-line depreciation period, as well as paying Customer's reasonable transportation costs. Trilliant shall have no obligation to defend any claims arising out of combinations of the Product or Software when used in combination with other Product or Software not supplied by TRILLIANT. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF TRILLIANT FOR PATENT INFRINGEMENT AND IS IN LIEU OF ANY OTHER WARRANTY AGAINST INFRINGEMENT OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY. 13. INDEPENDENT CONTRACTOR 13.1. Trilliant's status shall be that of independent contractor, and Trilliant, its employees, agents, or Subcontractors shall not be deemed, for any reason or purpose, to be a subcontractor, agent, partner, or employee of Customer. This Agreement creates no rights or benefits between Customer and any person or entity other than Trilliant. 13.2. Trilliant shall have full responsibility for all labor and employment matters, including, but not limited to, for all its and its subcontractors selection, hiring, discipline, supervision, control, compensation, benefits, labor relations, collective bargaining, as well as payroll taxes and costs. 13.3. Customer shall rely on the organization, management, skill, cooperation, and efficiency of Trilliant and the efforts of other Subcontractors, if any, to provide the intended Deliverables conforming to this Agreement within the scheduled time. 13.4. Trilliant shall at all times be fully responsible for the acts or omissions of its employees, agents, or any other person or entity under its direction or control, including the acts or omissions of its Subcontractors and their employees, agents, or other person or entity under the Subcontractor's direction or control. 13.5. Any general superintendence, inspection, review, coordination, monitoring, and oversight by Customer or the exercise of any of Customer's rights under this Agreement shall not relieve Trilliant of any of its responsibilities under this Agreement. 14. INSURANCE As set forth below, Trilliant shall at its own expense, procure from an insurance company licensed to do business in the State of Texas by the Texas Insurance Board and is rated as "A-" or higher by A. M. Best Rate Carriers, provide and maintain, and shall require each Subcontractors (regardless of tier) to provide and maintain, in effect during the performance of any services under the Agreement minimum insurance coverage with carriers satisfactory to Customer, including: Trilliant Confidential Page 12 14.1. Insurance shall be in effect during performance and until final completion and acceptance of any services under this Agreement the following minimum insurance coverage with carriers acceptable to Customer including: a. Workers' Compensation insurance in accordance with statutory limits, as required by the State of Texas , including a waiver of subrogation favoring Customer, and Employer's Liability insurance with limits of not less than one million dollars ($1,000,000) for each employee for accident; $1,000,000 each employee for disease, and $1,000,000 policy limit for disease. b. Commercial General Liability insurance providing coverage for bodily injury, property damage, personal injury, advertising liability, blanket contractual liability, covering Trilliant's obligations under this Agreement, products and completed operations, and coverage for independent contractors with limits of not less than one million dollars ($1,000,000) for each occurrence, an annual aggregate of two million dollars ($2,000,000), and a products/completed operations aggregate of two million dollars ($2,000,000). Such policy shall cover Customer as an additional insured, include a severability of interests provision and be primary and not contributory with respect to any insurance carried by Customer. C. Commercial Automobile Liability insurance providing coverage for all owned, non-owned, and hired automobiles used by Trilliant in the performance of the services with a combined single limit of not less than one million dollars ($1,000,000) for each occurrence of bodily injury and property damage. d. Excess or Umbrella Liability insurance with a limit of not less than three million dollars ($3,000,000) for each occurrence with an annual aggregate of three million dollars ($3,000,000) per location where the services are performed. This limit applies in excess of each of the coverages set forth above in paragraphs 14.1.a (Employer's Liability), 14.1.b (Commercial General Liability insurance) and 14.1.c (Commercial Automobile Liability insurance), which are scheduled as primary. e. Errors & Omissions/Professional Liability insurance, including cover for liability arising from intellectual property infringement, information technology and software development services with limits of three million dollars ($3,000,000) per occurrence. f. The insurance coverages to be provided by Trilliant under this Agreement shall not include any of the following: except for Professional Liability, any claims-made insurance policies; any self-insured retention or deductible amount greater than two hundred fifty thousand dollars ($250,000) unless approved in writing by Customer; any endorsement limiting coverage available to Customer which is otherwise required by this Section 14.1; and any policy or endorsement language that (i) negates coverage to Customer for Customer's own negligence; (ii) limits the duty to defend Customer under the policy; (iii) provides coverage to Customer only if Trilliant is negligent, or (iv) permits the recovery of defense costs from any additional insured. The insurance coverages provided under this Agreement shall not contain any restrictions or limitations which are inconsistent with Customer's rights under this Agreement. g. Trilliant shall furnish to Customer certificates of insurance regarding current coverage regarding items a. through f., inclusive, in Paragraph 14 above. The initial certificates shall be furnished within fifteen (15) days of the date of execution of this Agreement. With the passage of time, Trilliant shall update and provide Customer new certificates of insurance evidencing coverage as required in items a. through f. above. Trilliant Confidential Page 13 Trilliant agrees to provide Customer with a minimum of thirty (30) days of written notice of termination should any policy or policies lapse, and Trilliant shall thereafter promptly replace such lapsed coverage with other replacement insurance coverage, which fulfills the requirements of items a. through f. above. 15. FORCE MAJEURE AND DELAYS The failure of either party to perform any obligation otherwise due as a result of governmental action, law, order, regulation, direction, or as a result of events, such as war, act of public enemy, terrorism (domestic or foreign), strike or other labor disturbance, fire, flood, acts of God or any causes of like or different kind beyond the reasonable control of either party is excused for so long as said cause exists; provided however, and only to the extent such failure is caused by any such event and could not otherwise be avoided by the exercise of reasonable diligence. 16. SEQUENCE OF WORK Trilliant shall perform Deliverables in accordance with the approved Project Schedules. If in Customer's opinion as to any given Deliverable it would be advantageous to immediately perform some particular part of the Deliverable, Trilliant shall, upon receipt of Written Notice, use reasonable efforts to meet such requirement. If accommodation of said request will result in increased cost to Trilliant, Trilliant shall inform Customer of the nature and amount of the increased cost and the Parties shall agree in writing, upon a corresponding price adjustment. 17. COORDINATION AND COOPERATION 17.1. Trilliant shall cooperate with Customer and other contractors, if any, to ensure that the Deliverables are properly and are promptly performed on schedule. Trilliant shall collaborate with any other contractors and coordinate its services with the work of such other Trilliant projects, if any, which could affect the Deliverables, and Trilliant shall proceed in such manner as not to interfere or delay the progress of the work on Customer's project as a whole. 17.2. If any part of Trilliant's Deliverables depends on the proper execution or results of the work of any other Trilliant subcontractors, Trilliant shall inspect and promptly report in writing to Customer any defects in the work of such other Trilliant subcontractors that renders it unsuitable for such proper execution or results. Failure of Trilliant to do so shall constitute its acceptance of the other contractors' work as fit and proper for the reception of Trilliant's Deliverable, except as to defects that may develop in the other contractors' work after the execution of Trilliant's Deliverables. 17.3. In cases of disagreement or disputes between Trilliant and other contractors(s) which could delay or interfere with the Deliverables due to the failure to collaborate and cooperate or which cannot be resolved between Trilliant and the others involved, Customer shall be given prompt Written Notice specifying in detail the disagreement or dispute. In such cases, Customer may in its discretion which shall not arbitrarily be exercised determine the proper method of coordinating the Deliverable, and Customer's decisions in this regard shall be final, binding, and conclusive. 17.4. Trilliant shall provide, upon by Customer's request, an on-site representative who is duly authorized to act for and on behalf of Trilliant and to commit Trilliant to decisions that shall be binding on Trilliant. If requested, said representative shall attend meetings which may be scheduled by Customer. Notwithstanding the existence of a dispute or Trilliant Confidential Page 14 18 19. 20. 21. disagreement between Customer and interruption proceed with all Deliverables completion of all Deliverables on time. NATURE OF RIGHTS Trilliant, Trilliant shall diligently and without at such rates of progress as will ensure full The rights and remedies reserved by the Parties in this Agreement shall be cumulative and in addition to any other rights or remedies to which each may be entitled, and the exercise of any such rights or remedies shall not exclude the exercise of any other rights or remedies to which each may be entitled. Neither the exercise of said rights or remedies, nor the failure to exercise such rights or remedies, shall, in any manner, create any obligation to any third person or entity. MARKETING Any news release or public announcement, released by either party concerning this Agreement, will be subject to the prior approval of the other party in writing, and which such approval shall not be unreasonably denied. Any contemplated or proposed public announcement shall give due credit to the contributions of each party. In addition, no consent shall be required where disclosure of the terms and conditions of this Agreement, P.O's, SOWS, or any other matter directly or indirectly related to this Agreement is required by any law and/or regulation, upon reasonable written notice to the other Party. SURVIVAL All provisions providing for limitation of or protection against loss or liability of either Party, including all licenses, warranties, protections, and indemnities, shall survive termination, suspension, cancellation or expiration of this Agreement. LIMITATION OF LIABILITY AS TO ANY PROJECT, THE TOTAL LIABILITY OF EITHER PARTY FOR ALL CLAIMS OR SUITS OF ANY KIND, WHETHER BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, OR OTHERWISE, FOR ANY LOSSES, DAMAGES, COSTS OR EXPENSES OF ANY KIND WHATSOEVER ARISING OUT OF, RESULTING FROM, OR RELATED TO THE PERFORMANCE OR BREACH OF THIS AGREEMENT SHALL, UNDER NO CIRCUMSTANCES, EXCEED THE PURCHASE PRICE, AS MAY BE AMENDED BY AGREED UPON PRICE FOR EXTRA WORK AUTHORIZED BY WRITTEN CHANGE ORDER; PROVIDED, HOWEVER, THAT SUCH LIMITATION SHALL NOT APPLY TO ANY LIABILITY, CLAIM OR SUIT COVERED BY ANY POLICY OF INSURANCE REQUIRED BY THIS AGREEMENT, NOR SHALL IT APPLY TO ANY LIABILITY, CLAIM OR SUIT FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS SUBJECT TO THE INDEMNIFICATION PROVISIONS OF PARAGRAPH 12.2 OF THIS AGREEMENT. NEITHER PARTY SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL LOSSES, DAMAGES, COSTS OR EXPENSES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, LOST OR REDUCED PROFITS, REVENUES, OR BUSINESS OPPORTUNITIES.). 22. GOVERNING LAW; DISPUTES RESOLUTION Trilliant Confidential Page 15 22.1. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to the state's conflicts of law provisions. 22.2. DISPUTES RESOLUTION. The Parties agree to resolve any and all disputes that arise under this Agreement as follows: 22.2.1. All disputes arising under or relating to this Agreement (a "Dispute") shall be referred to the Project Managers. If the Project Managers are unable to resolve the Dispute within twenty (20) days after referral of the matter to them, the Parties shall submit the Dispute to a senior executive of each Party ("Executives"). If the Executives are unable to resolve the Dispute within thirty (30) days, the Parties shall have the option, provided both agree, to submit the Dispute to non-binding mediation as set forth below. Trilliant acknowledges that the performance of its obligations pursuant to this Agreement is critical to the business and operations of Customer. Accordingly, in the event of a Dispute between the Parties, Trilliant shall continue to perform its obligations under this Agreement in good faith during the resolution of such Dispute unless and until this Agreement is terminated in accordance with the provisions hereof, despite such dispute. 22.2.2. The Parties agree that written or oral statements or offers of settlement made in the course of the Dispute resolution process set forth in this Section 21.2.1 will (a) be Confidential Information, (b) not be offered into evidence, disclosed, or used for any purpose in any formal proceeding, and (c) not constitute an admission or waiver of rights. Trilliant and Customer will promptly return to the other, upon request, any such written statements or offers of settlement, including all copies thereof. 22.2.3. A Dispute may be submitted to mediation by written notice to the other Party, provided both Parties agree. In the mediation process, the Parties will try to resolve their differences voluntarily with the aid of an impartial mediator, who will attempt to facilitate negotiations. The mediator will be selected by agreement of both of the Parties as soon as practical, but in no event later than seven (7) days, after the written notice beginning the mediation process. Each Party shall provide the other with a list of no less than three (3) and no more than five (5) mediators, and the other Party may strike as many names as they choose. 23. NOTICES 23.1. All notices required to be given hereunder shall be in writing and shall be deemed to have been validly given if delivered by registered or certified first class mail, postage prepaid, return receipt requested, by fax, or email, or delivered by hand to the following addresses: a. To Customer: George C. Campbell, City Manager City of Denton, Texas 215 East McKinney Street Denton, Texas 76201 Fax: (940) 349-8507 Trilliant Confidential Page 16 Phil Williams, General Manager Denton Municipal Electric 1659 Spencer Road Denton, Texas 76205 Fax: (940) 349-7334 Email: phil.williams@cityofdenton.com Michael S. Copeland, Utility Attorney City of Denton, Texas 215 East McKinney Street Denton, Texas 76201 Fax: (940) 349-8120 Email: Michael.Copeland@cityofdenton.com b. To Trilliant: Trilliant Networks, Inc. 1100 Island Drive Redwood City CA 94062 Kyle Lehman, Project Manager Fax: (650) 508-8096 Email: Kyle.Lehman@trilliantinc.com Attn: General Counsel Fax: (650) 508-8096 Email: Juan.Otero@trilliantinc.com C. Notices delivered by hand, fax or email shall be effective upon the date of delivery if on a business day before 5 p.m. (PST or PDT), or if not on a business day, before 5 p.m. (PST or PDT) on the first following business day. Notices sent by either registered or certified mail as aforesaid shall be effective five days after being deposited in the United States mail. 24. ENTIRE AGREEMENT This Agreement constitutes the full, complete and only agreement between the parties hereto with respect to the foregoing Deliverables. This Agreement supersedes any course of performance, course of dealings, usage of trade, previous agreements, representations, and understandings, either oral or written. No terms, conditions, agreements, representations, understandings, course of performance, course of dealing, or usage of trade purporting to modify, vary, supplement, explain, or amend any provisions of this Agreement shall be effective unless in writing, signed by representatives of the Parties authorized to amend this Agreement. Trilliant Confidential Page 17 If any part of this Agreement is determined to be judicially unenforceable for any reason, the remainder of this Agreement shall remain in full force and effect. 25. HEADINGS Any table of contents or section, article, attachment and exhibit titles and headings are inserted for convenience only and shall not be used for the purposes of interpreting this Agreement. 26. DOCUMENTS Documents, drawings, diagrams, charts, prints, attachments, pictures, papers, sketches, or items identified as part of this Agreement shall be deemed complementary in that what is shown on one and not specified on the other, or vice versa, shall be considered as shown on both. 27. ARTICLES The Agreement is divided into Articles and paragraphs which are titled and numbered for convenience only. It is not to be inferred that this is a complete or correct segregation of the several divisions of Deliverables to be performed. Customer shall not be liable for omission or duplication of items of Deliverables by Trilliant or Subcontractor, due to real or alleged error in arrangement of matter in this Agreement. 28. CLARIFICATIONS Under no circumstances shall Customer be liable or responsible for any oral clarifications, instructions, or interpretations. 29. ASSIGNMENT AND TRANSFER This Agreement may not be assigned or transferred by agreement, merger, consolidation, operation of law and/or otherwise, in whole or in part, by Trilliant without the prior written consent of Customer. Subject to the foregoing, this Agreement shall bind and inure to the benefit only of the Parties hereto and their respective successors and permitted assigns. 30. EXHIBITS AND SCHEDULES TO AGREEMENT This Agreement includes the Exhibits and Schedules listed below, including their Attachments, which as a whole, constitute the entire Agreement between the Parties, all of which form one integrated agreement: Exhibit 1.1 Definitions Exhibit 2.1 Form of Statement of Work Exhibit 3.1 Software License Terms and Conditions Exhibit 4.1 Maintenance and Support Terms and Conditions Exhibit 5.1 Hosting Terms and Conditions 31. NEGOTIATED TERMS Trilliant Confidential Page 18 The Parties agree that the terms and conditions of this Agreement are the result of negotiations between the Parties and that this Agreement shall not be construed in favor of, or against, any Party by reason of the extent to which any Party or its professional advisors participated in the preparation of this Agreement. 32. COUNTERPARTS This Agreement may be executed by the Parties in five or more counterparts, all of which taken together shall constitute one and the same instrument: IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective duly authorized representatives. TRILLIANT NETWORKS, INC. A Delaware, Cor ration By: (Signature) Name: Andrew C. White Its: President, Chief Executive Officer (Title) THE CITY OF DENTON, TEXAS A Texas Municipal Corporation By: (Signature) Name: Its: (Title) Date: ! /0 Date: ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: ANITA,PRG CITY ATTOfRNE By: ' Trilliant Confidential Page 19 Exhibit 1.1 To Agreement for Advanced Metering Infrastructure ("AMI") Software, Hardware, Program Management and Support Services Definitions 1.1.1 "Agreement" has the meaning ascribed to such term in the preamble to the Agreement, and includes all Exhibits and Schedules thereto attached and/or therein referred. 1.1.2 "Applicable Laws" means all federal, state and local laws, statutes, ordinances, codes, regulations, rules, orders, and resolutions of all Governmental Authorities relating to the performance of the Deliverables and the transactions contemplated by this Agreement, including, without limitation, Environmental Laws, health, safety, building, and employment laws. 1.1.3 "Business Day" means any day on which commercial banks are not authorized or required to close for business in New York. 1.1.4 "Customer" has the meaning ascribed to such term in the preamble to the Agreement. 1.1.5 "Confidential Non-Disclosure Confidentiality Information" has the meaning ascribed to such term in Section 3 of the Agreement. 1.1.6 "Deliverables" means the items to be delivered and/or milestones to be met as part of the Advanced Metering Infrastructure project and set forth in the appropriate Statement of Work including but not limited to all Services, labor, supervision, supplies, fixtures, furnishings, vehicles, machinery, computers, processes, and equipment designed or intended for use in the production process of a Purchase Order Request, tools, materials, computers, software, utilities, items, documents, and things required by this Agreement to be performed or supplied, including, among other things, all sampling, assaying, construction, designing, testing, qualification, certification, and any component thereof, fully complete, operational, functional, and usable for its intended purpose under Applicable Laws. 1.1.7 "Hardware" means any product other than software designed and/or manufactured by or on behalf of Trilliant but excludes any third-party product provided as a pass - through item in writing or resold by Trilliant to Customer as part of a Purchase Order. 1.1.8 "Dispute" has the meaning ascribed to such term in Section 22 of the Agreement. 1.1.9 "Intellectual Property" has the meaning ascribed to such term in Section 8.1 of the Agreement. 1.1.10 "Intellectual Property Rights" has the meaning ascribed to such term in Section 8.2 of the Agreement. 1.1.11 "Milestone Dates" means, for a given Scope of Work, those specific dates that the Parties agree are critical to the progression of the Deliverables, and which are designated as "Critical" in the applicable SOW. 1.1.12 "OSHA" means the Occupational Safety and Health Act of 1970, as amended. Trilliant Confidential Page 20 1.1.13 "Party" and "Parties" each has the respective meaning ascribed to such term in the preamble to the Agreement. 1.1.14 "Payment Schedule" has the meaning ascribed to such term in Section 6.1 of the Agreement and as further detailed in the appropriate Statement of Work. 1.1.15 "Person" means any natural person, partnership (limited, general, or other), joint venture (limited or otherwise), Customer (limited liability or otherwise), corporation, association, Governmental Authority, or any other legal entity of whatever kind or nature, together with any combination of one or more of the foregoing. 1.1.16 "Price" for any given Purchase Order Request, has the meaning ascribed to such term in the corresponding Payment Schedule. 1.1.17 "Project Manager" and "Project Managers" each has the respective meaning ascribed to such term in the Agreement. 1.1.18 "Purchase Order Request" has the meaning ascribed to such term in Section 3 of the Agreement and provided for through the Purchase Order Request Template attached as Exhibit 1.2. 1.1.19 "Services" means any services, Deliverables, goods, equipment, materials, items, tasks, information, data, direction, consulting or other item or thing provided in accordance with this Agreement. 1.1.20 "Software" as to a given Scope of Work means the computer software programs(s) described in the corresponding Statement of Work developed by Trilliant, as well as related user manuals and standard documentation. 1.1.21 "Specifications" means, for a given Scope of Work, the corresponding document attached to or referencing this Agreement and stating in precise and explicit language those functions and capabilities a system (i.e., a software application, a communications network, and so on) must provide, as well as states any required constraints by which the Deliverables must abide, which document functions as a blueprint for completing the corresponding Deliverable with as little cost growth as possible. The Specifications include all appropriate project management documents, such as statements of work, installation procedures, validation and acceptance testing plans, and documentation plans. The Parties contemplate that the Specifications for a given Scope of Work may be modified by mutual consent from time to time in accordance with the Agreement. 1.1.22 "Scope of Work" or "Statement of Work" or "SOW' means the Deliverable(s) to be performed pursuant to a Purchase Order Request. 1.1.23 "Subcontractor" means any Person having a direct or indirect contract or purchase order with the Trilliant for the performance or supply of all or any portion of the Deliverables required by this Agreement or the supply of any materials, equipment, installation, or other Services required by this Agreement. 1.1.24 "Trilliant" has the meaning ascribed to such term in the preamble to the Agreement. 1.1.25 "Trilliant Personnel" means employees, consultants and subcontractor assigned by Trilliant to perform Services or Deliverables in a particular SOW. Trilliant Confidential Page 21 1.1.26 "Written Notice" means a written document signed by an authorized representative of the sending Party that conforms with the formalities of the Agreement. Trilliant Confidential Page 22 Exhibit 2.1 Form of Statement of Work Agreement for Advanced Metering Infrastructure ("AM[") Software, Hardware, Program Management and Support Services STATEMENT OF WORK ("SOW") NO. 00-OX This Statement of Work (SOW) defines a Statement of Services, Schedule and Price for work to be completed by Trilliant Networks, Inc. ("Trilliant") for Denton Municipal Electric ("Customer"). Unless specified otherwise within this SOW all work completed under this Statement of Work will be in accordance with the terms of the Agreement. AUTHORIZATION This Statement of Work is authorized and made an attachment to the above-identified Agreement. Authorized by: Customer By (Signature) By: Accepted by: Trilliant (Signature) Name: Name: (Please print) (Please print) Title: Title: Date: Date: Trilliant Confidential Page 23 Exhibit 3.1 Software License Terms and Conditions In addition to the terms and conditions set forth in the Agreement for Advanced Metering Infrastructure, the terms and conditions in this Exhibit 3.1 apply to Customer's license of Software. The license of Software and Customer's use of such software is deemed to be Services as that term is used and defined in the Agreement. ARTICLE I DEFINITIONS 1.1 Definitions. Capitalized terms used herein without definition shall have the meaning given to them in the Agreement. In addition, the following terms, as used herein, have the following meanings: 1.1.1. "Derivative Work" means any and all changes, upgrades, revisions, improvements, and modifications that improve upon or are derivative of the Software. 1.1.2. "Documentation" means the user, operating, and installation manuals or guides, and other printed or electronically stored or displayed materials relating to the use and operation of the Software as are made commercially available by Trilliant from time to time. 1.1.3. "Enhancement" means any modification or addition to the Software that changes its utility, efficiency, functional capability, or application. 1.1.4. "License Fee" means the license fee, if any, identified on Schedule 1 hereto. 1.1.5. "Customer Agent" means any employee of Customer or Customer affiliate or an independent Customer contractor retained by Customer to perform services requiring use of the Software. 1.1.6. "Network Nodes" means any device containing a SecureMesh compatible radio. 1.1.7. "Object Code" means the compiled run time or execution version in machine language of a particular piece of software. 1.1.8. "Software" means the computer programs and data in Object Code form provided by Trilliant to Customer hereunder, as listed on Schedule 1 hereto, including any Enhancements to, and Derivative Works of, the same. 1.1.9. "Specifications" means the Documentation and any additional performance criteria or specifications mutually agreed to by the parties in writing. 1.1.10. "Third Party" means any person or entity other than Customer and Trilliant. ARTICLE 2 LICENSE 2.1 Grant of License. Upon the terms and conditions set forth in this Exhibit F, Trilliant hereby grants to Customer and Customer Agents and Customer hereby accepts from Trilliant, during the Term a personal, non-exclusive, non-transferable, right and license, without the right to grant sublicenses, to use the Software and the Documentation solely for Customer's normal business operations, by no more than the number of authorized users and number of Network Nodes specified on Schedule 1 hereto, if any. 2.2 Except for Trilliant's warranty obligations under Article 3, Trilliant has no obligation under this Exhibit to correct any bugs, defects, or errors in the Software, or to otherwise support, maintain, improve, modify, upgrade, update or provide any Enhancements or Derivative Works to the Software. Any such obligation to support or maintain the Software will be subject to a separate Exhibit or agreement between Trilliant and Customer. 2.3 Ownership of Software and Documentation. As between the Parties, Trilliant shall own and retain all right, title, and interest in and to the Software and Documentation, including all worldwide rights to patents, copyrights, trademarks, trade secrets, and other intellectual property in or relating to the Software and Documentation. Customer is not acquiring any right, title, or interest of any nature whatsoever in any Software or Documentation, except the limited license granted under Section 2.1 to use the Software and Documentation. 2.4 Restrictions on Use. Customer's use of the Software and Documentation is subject to the following restrictions: 2.4.1. Customer may not use the Software and Documentation, or authorize or permit any Third Party to use or access the Software and Documentation, for any purpose other than as expressly authorized under Section 2.1. 2.4.2. Customer may not sublicense, assign, or otherwise transfer any of its rights in the Software or Documentation to any Third Party, except Customer Agents, nor allow any Third Party, except Customer Agents, to access or use the Software or Documentation. 2.4.3. Customer may not modify, adapt, translate, reverse engineer, decompile, disassemble, or create Derivative Works based on the Software to develop any other computer program or for any other reason. 2.4.4. Customer may not modify, adapt, translate, or create Derivative Works based on the Documentation without the prior written consent of Trilliant. 2.4.5. Customer may not electronically transfer the Software from one computer to another over a network for purposes of use by a third-party. 2.4.6 Customer may not use the Software in a live production environment. 2.5 Limited Copying Right. Customer may make no more than five (5) copies of the Software and Documentation solely for disaster recovery, training, testing, development, demo and other nonproduction purposes such as normal backup and archival purposes. All copies of the Software and Documentation, including the original copies provided by Trilliant to Customer in accordance with this Exhibit 3.1, are the property of Trilliant. All copies of the Software and Documentation must include any and all copyright notices provided on the corresponding original Software and Documentation. SCHEDULE 1 to Exhibit 3.1 Licensed Number of Number of License Fee Software Authorized Network Users Nodes UnitySuite 50,000 Per SOW Meterin g Application v9.3 ProCare 2 Per SOW Services Software v9.0 EXHIBIT 4.1 Maintenance and Support Terms and Conditions In addition to the terms and conditions set forth in the Agreement for Advanced Metering Infrastructure, the terms and conditions in this Exhibit 4.1 apply to Trilliant's maintenance and support of the following software: • UnitySuiteTM Application • ProCareTM Services Software ARTICLE 1 - DEFINITIONS 1.1 Definitions. Capitalized terms used herein without definition shall have the meaning given to them in the Agreement for Advanced Metering Infrastructure. In addition, the following terms, as used herein, shall have the following meanings: 1.1.1 "Custom Enhancement" means an Enhancement (as defined below) developed, in whole or in part, by Trilliant, at Customer's specific request and direction. 1.1.2 "Enhancement" means any modification or addition that, when made or added to a Licensed Program, materially changes its utility, efficiency, functional capability, or application, but that does not constitute solely an Error Correction. 1.1.3 "Error" means a problem or error occurring in any Licensed Program that has been reported, is reproducible, and causes the Licensed Program to not be in material conformance with its published specifications (the "Specifications"). Any nonconformity resulting from Customer's misuse, improper use, alteration, or damage of a Licensed Program, or Customer's combining or merging the Licensed Program with any hardware or software not supplied or identified by Trilliant as compatible with the Licensed Program, shall not be considered an Error. 1.1.4 "Error Correction" means a modification or an addition that, when made or added to a Licensed Program, corrects or eliminates the practical adverse effect on Customer of an Error in the Licensed Program. 1.1.5 "General Enhancement" means any minor release, update, modification or "bug fix" (designated by a renumbered release number such as v3.3 to v3.4) which does not necessarily provide materially new functionality, as determined by Trilliant in its sole discretion, and made generally available to Trilliant's supported customers.) 1.1.6 "Normal Working Hours" means the hours between 9:00 a.m. and 8:00 p.m. Eastern time, Monday through Friday, except for observed U.S. holidays. 1.1.7 "Major Enhancement" means a new major functional version of the Program and/or Documentation (designated by a renumbered release for example, v1.6 to v2.0) commercially released by Trilliant. 1.1.8 "Previous Sequential Release" means at any time the version or release of Licensed Program which has been replaced by the then-current version or release of such Licensed Product. Notwithstanding anything to the contrary herein, a Previous Sequential Release will be supported by Trilliant only for a period of six (6) months after release of the then-current version or release. ARTICLE 2 - SCOPE OF SERVICES 2.1 Services. During the Term, Trilliant shall render the following maintenance and support services in support of the Licensed Programs and Previous Sequential Release (as set forth in Section 1.1.8), during Normal Working Hours, subject to the compensation agreed upon by the parties in writing. The maintenance and support services provided under this SOW are deemed Services as that term is used and defined in the Master Services Agreement. 2.1.1 Web Support. Trilliant shall maintain a web portal that allows Customer to report Issues with the Licensed Programs and to define the severity level. Trilliant shall make available qualified analysts to provide, at Customer's request, support services for the Licensed Programs, including: 2.1.1.1 Troubleshooting and diagnosing Errors in the Licensed Programs; Trilliant remote support has a dependency on Customer to provide secure access to all components of the solution including device connectivity, network access, and server(s) hosting the head-end software. 2.1.1.2 Interpreting error messages in the Licensed Programs; and 2.1.1.4 Answering questions regarding documentation and operations of the Licensed Programs. 2.1.2 Remote Troubleshooting and Field Support. Customer shall make available to Trilliant remote access to its systems for the purpose of troubleshooting and problem resolution. If there are instances where web support or remote access is neither successful nor expedient, and upon mutual agreement between Trilliant and Customer, Trilliant will dispatch support personnel to Customer. If the field support is not covered under the service level defined in Schedule 2 attached hereto, then Customer will be responsible for reasonable pre-approved travel and labor costs as part of a separate agreement. 2.1.3 Error Corrections. At Customer's request, Trilliant shall make freely available to Customer, any Error Corrections developed during the Term for the Licensed Programs. 2.1.4 General Enhancements. Trilliant shall make available to Customer, via regularly scheduled maintenance releases any General Enhancements to the Licensed Programs developed during the Term. 2.1.5 Custom Enhancements. If requested by Customer, Trilliant shall develop Custom Enhancements to the Licensed Programs, in accordance with a separate development and support agreement(s) entered into by and between Trilliant and Customer and subject to the payment of the amounts provided in such separate agreement. Support services for Custom Enhancements are not included under this SOW. 2.1.6 Modifications to Licensed Pro-grams. Trilliant shall have no responsibility to provide services under this SOW if the Licensed Programs have been modified by parties other than Trilliant. 2.2 Severity Levels. For each request by Customer for any of the services provided hereunder, Trilliant will assign a severity level in accordance with the descriptions set forth on Schedule 3 attached hereto. Trilliant will respond to the service request in the time and manner associated with the assigned severity level, as provided on Schedule 3. ARTICLE 3 - Customer RESPONSIBILITIES 3.1 Authorized Contacts. Customer shall designate on Schedule 4 attached hereto not more than four (4) contacts who are authorized to request the services provided hereunder (collectively, the "Authorized Contacts"). To reduce confusion and redundant contacts, only one (1) Authorized Contact shall be designated per service requested. 3.2 Customer Equipment. Customer shall be responsible for procuring, installing, and maintaining all equipment, telephone lines, communications interfaces, and other hardware and software necessary to operate the Licensed Programs and to obtain from Trilliant the services called for by this Agreement (collectively, the "Customer Equipment"). Customer will make the Customer Equipment available to Trilliant as necessary for Trilliant to provide the services called for by this Agreement. This may include (depending on the service level) remote access to customers systems. SCHEDULE 1 to Exhibit 4.1 Supported Licensed Programs Licensed Software Number of Authorized Users Number of Network Nodes UnitySuite 50,000 Metering Application v9.3 ProCare Services 2 Software v9.0 SCHEDULE 2 to Exhibit 4.1 Maintenance and Support Rate Schedule for Licensed Programs See Pricing Schedule attached to SOW SCHEDULE 3 to Exhibit 4.1 Severity Levels Severity 1: Severe Business Impact - An Error in a Licensed Program causes a complete loss of service and no work can reasonably continue. No workaround is available. a. Response Time: Trilliant will strive to respond to any request for service related to a Severity 1 level Error within 1 business hour of receipt of such request. Severity 2: Significant Business Impact - An Error in a Licensed Program causes a severe loss of service, wherein important features are not working properly and there are no acceptable workarounds. However, operation does continue in a restrictive fashion. b. Response Time: Trilliant will strive to respond to any request for service related to a Severity 2 level Error within 2 business hours of receipt of such request. Severity 3: Minor Business Impact - An Error in a Licensed Program causes a minor loss of service, wherein the impact is inconvenience. A workaround is available. c. Response Time: Trilliant will strive to respond to any request for service related to a Severity 3 level Error within 12 business hours of receipt of such request. Severity 4: Information/ Minor Errors - There is no loss of service. Includes requests for more information, questions on particular application functionality, or minor system errors. d. Response Time: Trilliant will strive to respond to any request for a Severity 4 level service request within 24 hours of receipt of such request. Severity 5: Enhancement Request - Requests for General Enhancements. Response Time: Trilliant will strive to respond to any request for a Severity 5 level service request within 24 hours of receipt of such request. SCHEDULE 4 to Exhibit 4.1 Authorized Contacts Primary Contact Alternate Contact Name: [Denton Contact 1] Name: [Denton Contact 2] Phone: Phone: Mobile: Mobile: Email: Email: Exhibit 5.1 Hosting Terms and Conditions In addition to the terms and conditions set forth in the Agreement for Advanced Metering Infrastructure, the terms and conditions in this Exhibit 5.1 apply to the hosting services provided by Trilliant under this SOW: ARTICLE 1 - Scoae of Services 1. During the Term, Trilliant will provide the services described on Schedule 1 attached hereto (the "Hosting Services") to Customer in accordance with the service levels set forth in this Agreement. The Hosting Services are deemed Services as that term is used and defined in the Agreement for Advanced Metering Infrastructure. 1.1. Account Access. Where applicable, Trilliant will deliver to Customer an initial application administrator user ID, password and other account information ("Account Access Information") necessary for Customer to access the Hosting Services in accordance with this Agreement. Thereafter, Customer will create and manage Account Access Information for each user of the Hosting Services. Customer is responsible for all activity occurring under such Account Access Information and shall abide by all applicable local, state and federal laws and regulations in connection with Customer's use of the Hosting Services, including those related to data privacy and the transmission of technical or personal data. Customer shall: (i) notify Trilliant immediately of any unauthorized use of any Account Access Information or any other known or suspected breach of security, and (ii) not impersonate another Trilliant user or provide false identity information to gain access to or use the Hosting Services. ARTICLE 2 - Customer Responsibilities 2. Customer will provide Trilliant with the cooperation, access and detailed information reasonably necessary for Trilliant to implement and deliver the Hosting Services, including, where applicable, (i) test time on Customer's computer systems and networks sufficient for Trilliant to provide the Hosting Services and (ii) one (1) employee who has substantial computer system, network management and project management experience satisfactory to Trilliant to act as project manager and as a liaison between Trilliant and Customer. ARTICLE 3 - DISCLAIMER OF LIABILITY 3. Trilliant makes no representation, warranty or guaranty that any data provided by Customer will be accurate or reliable. SCHEDULE 1 to Exhibit 5.1 HOSTING SERVICES Definition of Hosting Services. During the Term, Trilliant will provide Customer, through the World Wide Web, limited access to, and use of, the Software and shared data hosting services herein described, subject to Customer having entered into a separate Software License Agreement with Trilliant. The hosted environment will be equipped with UPS Power, Security, Fire Suppression, Enterprise Backup Services (with regular intervals) and Disaster Recovery. Definition of Software. The Software is Trilliant's web-based application entitled "SerViewCom" and/or "UnitySuite". Obligations of Trilliant. During such time while any Customer Data resides on any Trilliant server, Trilliant will provide technological measures, such as data encryption (SSL) for data transmission. The hosted environment will have an appropriate firewall for Customer with shared clustered Oracle database behind the firewall so that only the Customer web server can access the data, in a commercially reasonable effort to restrict access to Customer Data by unauthorized users. Support by Trilliant. Trilliant will provide support associated with the hosting services during the period of the agreement during regular business hours. The primary interface for support will be through the Trilliant Support Site where trouble tickets can be logged for prioritization and follow up by Trilliant personnel. Application Upgrades. Trilliant reserves the right to make modifications, including upgrades, patches, revisions or additions to the Software, and as appropriate will provide advanced notification of said modifications. Backup Management. During the Term, Trilliant shall perform a regular backup of Customer Data to tape library in the form of nightly backup tapes, weekly backup tapes, and monthly backup tapes. Weekly backup tapes will be stored for one (1) month and monthly backup tapes will be stored for one (1) year; both weekly and monthly tapes will be stored off-site in a secure, fire-resistant location. All backup tapes will be destroyed at the end of this SOW and upon approval from Customer. Virus Protection. Trilliant has installed and will maintain centrally managed, industry standard anti-virus software in a commercially reasonable effort to protect the Hosting Services from virus infections and to prevent virus infections of Customer Data. Hardware and Operating System Management. Trilliant shall perform hardware maintenance, monitoring and problem resolution, and operating system maintenance, patching, upgrading, monitoring and problem resolution in accordance with standard practices. Operating System Security. Trilliant will maintain all operating systems used by Trilliant in providing the Hosting Services at commercially reasonable patch levels for security. Web Server and Database Server Security. Trilliant will maintain all web servers and database servers used by Trilliant in providing the Hosting Services at commercially reasonable patch levels for security. Audit Logging. Trilliant will monitor and log all system access to the Hosting Services to produce an audit trail. 2 DRAFT MINUTES PUBLIC UTILITIES BOARD July 12, 2010 4 5 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas is 6 present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on 7 Monday, July 12, 2010 at 9:45 a.m. in the Service Center Training Room, City of Denton 8 Service Center, 901-A Texas Street, Denton. 9 10 Present: Chair Dick Smith, Vice Chair Bill Cheek, Bill Grubbs, Phil Gallivan, and Barbara 11 Russell. 12 13 Ex Officio Members: 14 George Campbell City Manager, Jim Coulter, Acting ACM Utilities 15 16 Absent: Randy Robinson and John Baines, all excused 17 18 OPEN MEETING: 19 20 ITEMS FOR INDIVIDUAL CONSIDERATION: 21 22 2) Consider recommending adoption of an ordinance accepting sealed proposals and awarding 23 Phase one of an Agreement for the purchase of an "Advanced Metering Infrastructure 24 System" for the City of Denton, Texas (Denton Municipal Electric) in an amount not to 25 exceed $1,391,307.04 (RFSP 44485 - Advanced Metering Infrastructure System awarded to 26 Trilliant Networks, Inc.). 27 28 Phil Williams, General Manager Denton Municipal Electric, presented this item. Williams 29 brought examples of Electric Meters. Williams stated that mechanical meters began when the 30 industry began in 1905. This technology behind the mechanical meters really hasn't changed. 31 Williams stated that they do have more dials, because people use more electricity now and that 32 56% of our meters are mechanical. He further stated that in 1988 the industry came out with 33 digital meters, 44% of our meters are digital. The contract that we are proposing today is from 34 AML The meters have not changed they are the same digital meters. The difference is the 35 communication capability. We can communicate to and from the meter. AMI will automate 36 meter reading collection, allow remote connect and disconnection, provide data to the Outage 37 Management System, enable in home displays, and move to time of use electric rates. Member 38 Gallivan asked if all the meters have to be replaced. Williams responded that all the meters have 39 to be replaced and will be within a 5 year time frame. The first meters to be replaced are the 40 ones with obsolete technology. Over the next 5 years 43,000 residential and 5,000 commercial 41 meters will be replaced. The areas with the highest rates of connects and disconnects will be the 42 area that we will begin replacing. That will save the most money. 43 44 Williams stated that this item is for the first phase of this project. After this phase we will come 45 back and re-assess for newer technology. Member Gallivan asked for clarification of what Draft Minutes of the Public Utilities Board meeting June 14, 2010 Page 2 of 2 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 would be purchased with this contract. Williams responded that this contract is for the meter hardware and the software for those meters. Member Grubbs asked how we would field questions or concerns about the change outs. Williams stated that all meters that come out of the field will be tested and the data from those meters will be stored. Chair Smith asked when this exchange will begin. Williams stated that it will begin end of August or beginning of September. Member Russell asked where the change out will begin. JR Richardson, Communications and Metering Superintendent, stated that it will be in the Londonderry and Colorado area, those areas house students and have the highest rate of connects and disconnects. Board Member Gallivan moved to approve item 2 with a second from Board Member Russell. The motion was approved by a 5-0 vote. The meeting was adjourned by consensus at 10:00 a.m. CITY OF DENTON CITY COUNCIL MINUTES June 8, 2010 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, June 8, 2010 at 4:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member Heggins, Council Member King, and Council Member Watts. ABSENT: None 1. Receive a report, hold a discussion, and give staff direction regarding amendments to the Rayzor Ranch Overlay District (RROD) Section 35.7.15 of the Denton Development Code (DDC) (Z10-0010, Rayzor Ranch South Town Center). Specifically, the applicant's proposal includes: a. Modifying certain previously approved development standards, b. Proposing an increase to Multi-family density on the Southern Tract, c. Replacing the previously approved Master Site Plan with a Conceptual/Schematic Plan on the Southern Tract, d. Amending and adding definitions to land uses e. Amending and defining landscape guidelines, f. Amending and defining architectural guidelines, and g. Amending and defining signage guidelines. Chuck Russell, Planning Supervisor, stated that the focus of his discussion would be to bring Council up to speed on the latest application that had been submitted for amendments to the south side overlay district. The south side site plan had been committed to by the previous developer and the situation had changed since the site plan was adopted. The main concern of the current developer was that there was no way to constrict the south side as previously proposed. The developer was still committed to a similar outside style mall but the building footprints would not be in the same place. The developer was asking for flexibility to move areas around in the development. The detailed site plan would be replaced with a conceptual site plan to move development around on the site. The developer was proposing three sub-districts: the Town Center (RR-1), South RR-2 and South Mixed Use area. The intent was to develop approximately 1,000,000 square feet of commercial uses on the Southern Tract which would include the Town Center, standalone retail, restaurants and grocery store uses within the South RR-2 area. The area designated as Town Center would deviate from the approved Master Site Plan in that the actual layout with specifically identified buildings, parking lots and open spaces would be replaced with a more conceptual plan. This would allow the developer flexibility in design and the ability to accommodate future tenant needs while still delivering a viable high quality outdoor shopping center. The current site plan allowed for approximately 185 single family detached units, 496 single family attached units and up to 750 multi-family units on the Southern Tract. The proposal was to have an additional 1,050 multi-family units within a City of Denton City Council Minutes June 8, 2010 Page 2 "Density Zone" boundary. The Southern Tract would also include approximately 18.21 acres of park land that would include a 15-acre central park that was planned to contain an outdoor entertainment facility and one or two museums. A question had been raised on how the city would know it was getting high quality landscaping and detail if there was no detailed plan. Russell explained that the developer would not received any economic incentives until 600,000 square feet of commercial development had been completed which would mainly be the future mall space. The developer had committed to the architectural guidelines for the Town Center, the signage package and the landscaping. All development on the south side would have to have site plan approval prior to the issuance of a building permit which provided the level of assurance that all necessary details would done before building started. Mayor Burroughs stated that he had no problem undoing the super detail plans. His issue was on the balances struck with percentages and the amount of square feet dedicated to certain uses. Russell stated that there would be general areas with combinations of uses. There was a guarantee of a minimum threshold of commercial. The developer could not have any economic incentives until there was a certain amount of retail. Prior to a building permit for multi-family there would have to be 600,000 square feet of retail foundation laid and accepted by the city. Mayor Burroughs questioned that the original number for retail development was 1 million square feet. Russell replied that the 600,000 was the minimum amount. It was anticipated that the three big boxes on the south side would help take up the square footage. Mayor Burroughs stated that would it be possible that the 600,000 square feet would be all that was built while the current zoning mandated at least a million square feet. Russell stated that there was nothing that required the developer to build the entire commercial as shown on the current site except for the 380 incentive agreement. Mayor Burroughs stated that under the current plan if the million square footage of commercial wasn't done, nothing else could be built on that site. The current site plan was too detailed with the property unable to be used for anything else. With the new proposal, the developer could build something different as long as it was allowed under the proposed zoning category. Russell stated that RR-2 would allow for a variety of commercial uses which was the point of the change. Other than the mall development, there wasn't a guarantee that all of the property in the concept area would be commercial uses. Council Member Gregory asked if the 600,000 square foot total before incentives was for the total amount of commercial for north and south. Russell stated that it was just for the south as there were separate agreements for the north and south sides. City of Denton City Council Minutes June 8, 2010 Page 3 Council Member Gregory felt that it would be helpful to look at what was currently approved for the south side but also helpful to have numbers in square feet or acres of what the concept plans would be. He suggested a comparison chart of the current and proposed plans. Mayor Burroughs stated that the concept plan would have ranges instead of exact amounts. Council Member Gregory stated that he wanted to see how residential was fitting on the land and whether it was the same amount of land or a smaller amount of land. Council Member Watts stated that with the specific site plan, it was known that a particular building would be in a particular location. He was concerned that with the concept plan there wasn't a guarantee of what would go where in the development. He questioned at what stage a specific site plan would be presented for approval. Russell stated that staff would provide a detailed menu of the list of permitted uses for each of the three pieces. Council Member King stated that the flexibility might be insurance that there would be more constriction. It would provide more ability to build versus the developer couldn't build because it wasn't what was proposed. Russell stated that Council was not approving a blank check. They would be approving a bubble and approving what would happen in the bubble with layers of protection. Council Member Heggins questioned the number of single family attached and detached homes and whether the numbers would change or remain the same. Russell stated that the numbers presented were the maximum and could go down. Mayor Burroughs stated that part of the reason for the incentive and flexibility was the desire to help to create a mixed use development for a positive impact on the city. He asked if there was any way to lock in the ability if a large hospital developed in the area to not go a tax exempt status. Mark Cunningham, Director of Planning and Development, stated that the City could not regulate ownership and could not say that a property had to stay taxable. Mayor Burroughs asked if a condition could be used that for a certain amount of time property would have to remain taxable. Linda Ratliff, Director of Economic Development, stated that it was already in the 380 agreement that the developer would not sell property to a tax exempt entity except for the two museum sites and the DME substation. Russell continued with the density provisions. He stated that currently 750 apartments could be built with the approved plan. With the proposed plan, the total density would increase to 1800 multi-family units. The focus would be that all but 750 of the units would be in one location which was labeled as the "multi-family density zone". Staff had developed a list of items that City of Denton City Council Minutes June 8, 2010 Page 4 had to be done for increased density which included the concept plan, the site plan, Traffic Impact Analysis/platting, permit milestones, design standards, sustainability, jobs to units and other projects. In terms of permit milestone, there would be no multi-family units started until there was the required amount of retail started in foundation form. The developer still had to commit to design standards. In terms of sustainability, there were concerns that with the additional multi-family, how much retail would be needed to have the project survive; the critical mass of people living nearby to keep the retail going. Council Member Gregory stated that he would like to see projections for the range of persons per unit or the total number of persons living in the new development. Russell stated that the developer had committed to no more than three bedrooms per unit. Council Member Gregory asked if the overall mix of residential could be higher for multi-family if the single family attached or single family detached did not happen. He felt that he would like certain parcels designated as single family only. Russell stated that the concept plan opened up the area and allowed for combinations of areas. Council Member Watts stated that he had no problem with the number of multi-family units proposed but rather with the quality. There was a difference between student housing and housing for young professionals. He understood that the multi-family would be for young professionals or retired individuals and that the quality of the units would be a different standard than for student housing. He questioned how to lock in the design standards for higher end multi-family. He had no problem with the density if it were done right. Russell stated that spoke to the hurdles the developer had to go over to get a building permit. There was a basic set of architectural standards in place now and the developer had agreed to add to them as he developed. Mayor Burroughs indicated that this had been done before with planned developments since the overlay conditions provided a series of elevations and so long as the project was substantially like the elevations presented, they would be permitted. Those could also be modified in the future with a variance if needed. Russell stated that the developer had already agreed to at least two elevations and had provided a sample of what they were proposing for illustrative purposes only. Council Member Watts stated that the multi-family still had general standards for such things as constriction materials that would show quality and still give flexibility. Russell stated that the City and the developer were still not in complete agreement regarding landscape requirements. One issue was the amount of landscape and tree canopy coverage to be provided on the south side. The developer had agreed to plant trees in the parking lot to break up the parking lot surface parking and had agreed to the code standards. However, the developer had a set amount of money for this project and there were all kinds of amenities. As a trade off, the developer was suggesting to not worry about how many trees were in the parking lot, if they committed to a level of land for landscaping in the parking lots. They were questioning whether City of Denton City Council Minutes June 8, 2010 Page 5 it was important to Council to have bigger trees in the parking lots or have more trees on the main streets in view of the public. Mayor Burroughs stated that it would depend on how it was laid out. He would not want to see a large blacktop mass as opposed to a triple amount of landscaping in the parking lot. Mayor Pro Tem Kamp stated that she would like to consider both. She asked if there would be a parking garage. Russell stated that there would not be a parking garage. The surface parking would ring the mall in order to have visibility of the buildings. The parking was in about fourteen different areas with landscaping all around them. Islands would be breaking up the parking spaces. It was suggested to have bigger tress and less number to provide for a better canopy. Council Member Watts felt that there needed to be a balance and suggested wider areas with berms and not just a tree in one little area. Mayor Pro Tem Kamp suggested planting native Texas plants. Council Member Gregory indicated that he would like a parking lot similar to the Austin one shown Council rather than ones here in Denton which were large blacktopped areas with no landscaping. Russell stated that staff and the developer were still working through the components for signage and architectural packages. The Council went into Closed Session at 5:35 p.m. 1. Closed Meeting: A. Deliberations regarding Consultation with the City Attorney - Under Texas Government Code Section 551.071, Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087. 1. Receive a report and hold a discussion regarding legal issues on matters in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional conduct of the State Bar of Texas clearly conflicts with the provisions of the Texas Open Meetings Act, Chapter 551 of the Texas Government Code. Also hold a discussion regarding granting economic development incentives to Allegiance Hillview, LP with respect to development at Rayzor Ranch. This discussion shall include commercial or financial information the City Council has received from Allegiance Development which the City Council seeks to have locate, stay, or expand in or near the territory of the city, and with which the city council is conducting economic development negotiations; including the offer of financial or other incentives. City of Denton City Council Minutes June 8, 2010 Page 6 B. Consultation with Attorney - Under Texas Government Code, Section 551.071; Certain Public Power Utilities: Competitive Matters - Under Texas Government Code, Section 551.086. 1. Discuss, deliberate and receive information from staff regarding public power competitive and financial issues involved with the proposed "Further Agreement"; the proposed "Agreement Related to Adoption of Amendment to Power Sales Contract Between Texas Municipal Power Agency, City of Bryan, Texas, City of Denton, Texas, City of Garland, Texas, and City of Greenville, Texas"; and the proposed "Amended Power Sales Contract Between Texas Municipal Power Agency and City of Bryan, Texas, City of Denton, Texas, City of Garland, Texas and City of Greenville, Texas." Consultation with the city's attorneys regarding legal issues associated with the three above-stated proposed agreements respecting Texas Municipal Power Agency matters, where such discussion and deliberation in an open meeting would have a detrimental effect on the position of the City Council and would clearly conflict with the duty of the City's attorneys to the City of Denton, Texas and to the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. Council Member Gregory motioned, Mayor Pro Tem Kamp seconded to go into Closed Session under the Public Power Utilities exception. On roll call vote, Council Member King "aye", Council Member Heggins "aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Burroughs "aye", Council Member Watts "aye", and Mayor Pro Tem Kamp "aye". Motion carried unanimously. C. Deliberations regarding Personnel Matters - Under Texas Government Code Section 551.074. 1. Deliberate and discuss the appointment and duties of public officers to boards or commissions exercising discretionary or rile making power as opposed to purely advisory powers, which includes without limitation the Health and Building Standards Commission, the Historic Landmark Commission, the Planning and Zoning Commission, and the Zoning Board of Adjustment. Following the completion of the Closed Session, the Council met in Open Session at 6:38 p.m. to consider the following: Ordinance No. 2010-135 1. Consider adoption of an ordinance of the City of Denton, Texas approving and authorizing the "Further Agreement" regarding Texas Municipal Power Agency, a Texas Joint Powers Agency ("TMPA"), and its four Member Cities, the Cities of Bryan, Denton, Garland and Greenville, Texas; authorizing the City Manager to act on the City's behalf in executing the "Further Agreement" together with any and all necessary supporting documents; and to take such other and further actions as are necessary in order to effectuate and finalize the "Further Agreement"; authorizing the delivery of said "Further Agreement" to TMPA and City of Denton City Council Minutes June 8, 2010 Page 7 its three other Member Cities; authorizing the expenditure of any funds therefor; and declaring an effective date. Council Member Gregory motioned, Council Member King seconded to adopt the ordinance. On roll call vote, Council Member King "aye", Council Member Heggins "aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Burroughs "aye", Council Member Watts "aye", and Mayor Pro Tem Kamp "aye". Motion carried unanimously. Ordinance No. 2010-136 2. Consider adoption of an ordinance of the City of Denton, Texas approving and authorizing the "Agreement Related to Adoption of Amendment to Power Sales Contract between Texas Municipal Power Agency ("TMPA"), City of Bryan, Texas, City of Denton, Texas, City of Garland, Texas, and City of Greenville, Texas ("Member Cities"); authorizing the City Manager to act on the City's behalf in executing the "Agreement Related to Adoption of Amendment to Power Sales Contract between Texas Municipal Power Agency, City of Bryan, Texas, City of Denton, Texas, City of Garland, Texas, City of Greenville, Texas" together with any and all necessary supporting documents; to take such other and further actions as are necessary in order to effectuate and finalize the aforesaid Agreement; conditioning the approval of this ordinance upon the acceptance and approval by each of the governing bodies of Texas Municipal Power Agency, and the Cities of Bryan, Garland and Greenville, Texas; and to take such other and further actions as are necessary in order to effectuate and finalize the aforesaid Agreement; authorizing the delivery of the aforesaid Agreement to TMPA and its Member Cities; authorizing the expenditure of any funds therefore; and declaring an effective date. Mayor Pro Tem Kamp motioned, Council Member Heggins seconded to adopt the ordinance. On roll call vote, Council Member King "aye", Council Member Heggins "aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Burroughs "aye", Council Member Watts "aye", and Mayor Pro Tem Kamp "aye". Motion carried unanimously. Ordinance No. 2010-137 3. Consider adoption of an ordinance of the City of Denton, Texas approving and authorizing the "Amendment to Power Sales Contract between Texas Municipal Power Agency and City of Bryan, Texas, City of Denton, Texas, City of Garland, Texas, City of Greenville, Texas"; authorizing the City Manager to act on the City's behalf in executing the "Amendment to Power Sales Contract between Texas Municipal Power Agency, and City of Bryan, Texas, City of Denton, Texas, City of Garland, Texas, City of Greenville, Texas" together with any and all necessary supporting documents; and to take such other and further actions as are necessary to effectuate and finalize the aforesaid Amendment to Power Sales Contract; conditioning the approval of this ordinance upon the acceptance and approval by the governing bodies of Texas Municipal Power Agency, and the Cities of Bryan, Garland and Greenville, Texas; authorizing the delivery of the aforesaid Amendment to Power Sales Contract to TMPA and its three other Member Cities; authorizing the expenditure of any funds therefor; and declaring an effective date. Council Member Watts motioned, Mayor Pro Tem Kamp seconded to adopt the ordinance. On roll call vote, Council Member King "aye", Council Member Heggins "aye", Council Member City of Denton City Council Minutes June 8, 2010 Page 8 Gregory "aye", Council Member Engelbrecht "aye", Mayor Burroughs "aye", Council Member Watts "aye", and Mayor Pro Tem Kamp "aye". Motion carried unanimously. The Council returned to the Work Session Items. 2. Receive a report, hold a discussion, and give staff direction regarding nominations/appointments to the City Council committees and the City's boards and commissions. Jennifer Walters, City Secretary, stated that there were two points of discussion for Council. One was the Council Committees and the other was Boards and Commissions. In terms of Council Committees, committee assignments were reviewed annually by the Council to allow the opportunity to make adjustments if necessary. She noted that a listing of the current assignments were included in the backup materials. Council discussed the committee assignments and made changes to various committees. The list of assignments would be ratified at the Council meeting of June 15tH Walters continued with boards and commissions. She noted that at the annual Council Planning Session, Council had expressed a desire to hold a work session to discuss nominations before the actual process began. To aid in the discussion, a preliminary list of those individuals whose terms were expiring on each board per Council Member nomination was provided. A listing of specialty boards that required specific categories of members was also provided. More specific information would be provided Council at the June 15th meeting with the board and commission notebooks being handed out. Mayor Burroughs noted that some boards received lots of persons to serve and some did not. He felt it was important to keep in mind the purpose of the committee as well as the outcome and goals of the Council. He suggested Council talk with the people they were considering for re- nomination and that it helped Council on how the committees were functioning. Council Member Watts asked about the Airport Advisory Board and what it did for the Airport. Mayor Pro Tem Kamp stated that there would be a discussion on that when the Airport Master Plan was discussed. Howard Martin, Assistant City Manager, stated that a draft of the business plan was finished and staff was close to finalizing the Master Plan. Mayor Burroughs questioned if the Master Plan needed be to completed and discussed before Council made nomination decisions for the Airport Advisory Board. Council Member Gregory stated that the composition of the members could potentially change the dynamics of a board or commission. Members could enhance or could make a board less functional. He asked what the process was if a board was not functioning well and there was tension between the board and the staff liaison. City of Denton City Council Minutes June 8, 2010 Page 9 City Manager Campbell stated that Council could talk with the staff regarding the issues as well as the board members. If Council had questions on the functionality of a board or commission, they could hold off on those appointments. Staff could provide information from their perspective and Council could make those appointments later. Council Member Gregory asked if there were other committees where the responsibilities needed to be reviewed. City Manager Campbell stated that Council had mentioned the Airport Advisory Board and the Traffic Safety Commission. Those two boards could be reviewed before nominations were done. He mentioned that at the Council Planning Session, Council had mentioned looking at charges for boards, the direction boards were heading, and whether membership on the boards reflected the philosophy of this Council. With no further business, the meeting was adjourned at 7:03 p.m. MARK A. BURROUGHS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES June 15, 2010 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, June 15, 2010 at 2:30 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member Heggins, Council Member King, and Council Member Watts. ABSENT: None 1. Requests for clarification of agenda items listed on the agenda for June 15, 2010. Council Member Watts requested that Consent Agenda Item 3E dealing with the economic development grant be pulled for individual consideration. On Consent Agenda Item 3V, the Walker contract, he asked how involved the firm was with the mediation all of the activities with the negotiations and asked for a justification for the additional fees. City Attorney Burgess stated that the TMPA litigation involved resolving multi-year and multi- case matters with all four member cities and TMPA. The additional fees of $25,000 was for consummating the dismissal all of the cases. Council Member Watts asked if it started with the bond validation suit. City Attorney Burgess replied that suite and the Travis County suit. The PUC issues also required dismissal. There were almost 20 pieces of litigation to settle. Council Member Gregory questioned Consent Agenda Items O, P and Q in terms of one provision in the contract dealing with the current lease holder wanting to release the lease and release it to a new holder. Part of the contract indicated that the original leaseholder would be responsible if the new lease individual backed out of the contract. He requested looking at whether other airports had that same provision to determine if that provision might put Denton in a business disadvantage when leasing. Council Member Gregory asked about Consent Agenda Item 3R and the alternate member to the Board of Directors to DCTA. If Rick Woolfolk was designated as the first alternate, who would be the second alternate. City Manager Campbell stated that if Council felt it was appropriate, either Howard Martin or Mark Nelson could be designated as the second alternate. The ordinance for consideration at this meeting was only for the first alternate. Mayor Burroughs suggested that the wording for the airport leases might be changed so that after a reasonable period of time for the standard form lease assignment the original lease individual would be released. Mayor Burroughs asked about Consent Agenda Item 3S and whether it was projected to receive input from commercial enterprises outside city limits. The wording of the caption indicated "regional". City of Denton City Council Minutes June 15, 2010 Page 2 Howard Martin, Assistant City Manager, stated that the grant was looking at local businesses that provided that resource to use for a pilot project. Mayor Burroughs asked if it would go beyond the city limits to acquire materials. Martin replied not for the initial project. 2. Receive a report, hold a discussion, and give staff direction regarding the 2010-11 Proposed Budget, Capital Improvement Program, and Five-Year Financial Forecast. Bryan Langley, Director of Finance, presented a preliminary FY 2010-11 budget overview. Overview and Purpose - included (1) review of the adopted FY 2009-10 long term financial plan, (2) discuss possible changes to assumptions for long-term financial forecast, (3) review preliminary FY 2010-11 five year financial forecast, (4) discuss strategies to resolve budget issues, (5) preliminary GO debt service fund forecast, (6) preliminary Utility Fund budgets and other key information and (7) next steps. FY 2009-10 Long Term Plan - Langley reviewed a summary of adopted assumptions in terms of appraised value growth, sales tax growth, compensation, health insurance, tax rate/$100, and future bond sales. The adopted 2009-10 General Fund long term plan was reviewed in terms of beginning fund balance, revenues, tax increase, expenditures, new expenses, additional reductions, ending fund balance and effective fund balance percentage. Potential Changes to Assumptions - Areas included fund balance, sales tax, appraised value, other revenues/cost issues, preliminary FY 2010-11 General Fund five year forecast and other considerations Fund Balance Reserves - the beginning level was approximately $948K more than previously forecasted in the FY 2009-10 budget. It was expected to remain above the target level over the short term. The Audit/Finance Committee previously established a target reserve level as a percentage of budgeted expenditures. A 12-15% range was established. The goal was 15%, but the range was provided to allow for flexibility with economic cycles. Bond rating agencies recently indicated that a reserve level below 15% was low compared to similarly rated entities. As a result, staff recommended that no budget be adopted that contemplates a fund balance level below the 15-20% of budgeted expenditures for a single year only. The long term plan should also indicate fund balance levels above this threshold, but the emphasis would be on the current year. Council Member Watts asked if staff had any recent conversations with bond rating agencies that would indicate if the City was not able to maintain that level, would there be a risk of a reduction in rating. Langley stated that there might be a risk but he couldn't say for sure. He continued with information on changes in monthly sales tax from FY 2008-09 and FY 2009-10. The revised estimate for FY 2009-10 was $19,443 million which was $2.0 million below budget. The April numbers were up about 6%. City of Denton City Council Minutes June 15, 2010 Page 3 Sales Tax - Langley continued the sale tax information with figures from 1998 to present. A 5% decrease for this budget year was projected. Appraised Values - using average experience as a guide, 2010 appraised values were expected to fall 4%. Using 2007 experience, a 5.2% decline was estimated with a 6% decline forecasted for financial planning purposes. This decline severely affected the long term plan and the GO debt service fund as well. Preliminary Appraisal District information indicated that most properties would not increase in value in Denton County. Commercial properties were expected to decline by 20-30%, multi-family properties were expected to decline by 10%, and residential properties were expected to decline by 34%. Future appraised value growth estimates should also be revised due to moderate recovery estimates. Appraised value history since 1998 to present was discussed. Tax Rate Information - The Texas Property Tax Code mandated the calculation and publication of an effective tax rate. The effective tax rate for FY 2009-10 was almost 5 cents more than the adopted tax rate. In other words, the FY 2009-10 tax rate represented a tax decrease compared to FY 2008-09. Other FY 2009-10 revenue items - fine/fee revenue was expected to be $1.2 million below budget. Investment income was expected to be approximately $425,000 below budget. Franchise fees and Return on Investment also were expected to be lower than previous estimates due to reduced Utility Fund revenue. Preliminary FY 2010-11 General Fund long term plan - included a 2.5 cent tax increase in FY 2010-11 and a 1 cent tax increase in FY 2014-15. Council Member Watts asked about the gas well revenue transfer from the airport fund. Langley stated that Council had agreed to transfer $974,000 into the General Fund which was included in the figures. Council had also talked about an annual transfer of about $500,000 was excluded from the expenditures. Council Member Watts stated that the transfers from the airport gas well fund were not factored into the projections for the out years. Langley stated correct, that it was a one-time honor. Other considerations - the long term financial plan did not address the lack of funding for infrastructure. Approximately $16 million of additional funding was needed annually for street maintenance. An estimated $7-10 million in drainage improvements (at a minimum) was needed over the next five years. The financial plan currently underestimated the actual costs of achieving strategic goals. A long term strategy was needed to eliminate annual deficits and provide additional resources. The 2008 citizen survey indicated 65% of residents rated street maintenance as fair or poor and 38% of respondents indicated that they would like additional street maintenance funding. The strategic plan needed to focus around this issue. City of Denton City Council Minutes June 15, 2010 Page 4 Management Plans Underway - FY 2009-10 cost reductions included a hiring/reclassification freeze, a suspension of non-essential travel/training, the elimination of the transfer to the non- airport gas well fund and the implementation of some Efficiency Team recommendations before the end of the fiscal year. Due to revenue declines, the fund balance decline was still anticipated to approach $4.5 million by year end. Due to the composition of expenditures, significant reductions could not be made without affecting personnel and/or service delivery. Efficiency improvements and minor adjustments to spending would not be sufficient to correct the structural funding imbalance in the General Fund. Program level funding reductions and/or eliminations would need to be made even with a tax increase. Since revenues were expected to be at prior year levels, management would need to consider reducing service to prior year levels as well. Items Under Consideration - (1) increase user fees to fully recover cost of service, (2) transfer Keep Denton Beautiful program from the General Fund to the Solid Waste Fund which would require an additional rate increase for solid waste customers, (3) transfer savings associated with CO bond issuance from utility funds to the General Fund, (4) consider overtime reduction strategies in all General Fund departments including public safety operations, and (5) delay the Public Safety Training Facility. Council Member Watts felt that relabeling solid waste revenue from rate to pay for service for Keep Denton Beautiful was not really a cost reduction but more of a transfer. Council Member Gregory felt that the same people who pay for solid waste would also pay more taxes in ad valorem taxes and would be getting hit with both increases. He was not sure that the timing would be right to move KDB from the General Fund to solid waste. He asked when would be the next scheduled rate increase for DME. City Manager Campbell stated that was a range of options that included reductions in some programs and level of service. Council Member Gregory suggested keeping a final tab on how the changes were going to affect citizens. Mayor Burroughs asked for an estimate on how much the change in Keep Denton Beautiful would be for solid waste customers. Langley indicated that it would be about 15 cents per month. Howard Martin, Assistant City Manager, stated that the total increase would be closer to a 15 cent charge on the refuse side and a 15 cent charge on the recycling side. No electric increase was anticipated until 2013. Langley continued with Items Under Consideration - (6) substantial reductions to travel and training budget, (7) eliminating council contingency funds, (8) re-evaluate planned compensation increase, (9) create an Airport Enterprise Fund and establish ROI, franchise fees, and indirect cost transfer to the General Fund, (10) transfer the cost of some positions to the CIP budget, (11) eliminate the downtown incentive grant, (12) delay increasing the over 65 property tax exemption to $35,000, (13) increase the non-residential library fees, (14) reduction of the City of Denton City Council Minutes June 15, 2010 Page 5 Chamber of Commerce contribution, (15) consider higher reimbursement/reallocation of positions for School resource Officers, (16) transfer available fund balance Internal Service funds and Non-airport Gas Well funds into the General Fund which would be a one-time revenue source, (17) explore the feasibility of paying for the Urban Forester out of the Tree Mitigation Fund, (18) reconsider the supplemental package requests from the General Fund departments, (19) reduction of programs, services, and personnel to offset projected gap between revenues and expenditures, and (20) the 2.5 cent tax rate increase proposed for FY 2010-11 would likely be at or below the effective tax rate so staff may recommend a tax rate increase equivalent to the effective rate which might be greater than the 2.5 cent increase previously discussed. Council Member Watts asked what, if any, of the airport expenses could be picked up by the airport gas well fund. Mayor Burroughs asked if these suggestions had a goal for awareness to the Council or when would staff expect push back on some of the items. Langley replied that if some of the items were definitely off the table staff needed to know that as soon as possible. Mayor Burroughs felt a discussion on small items should center the fact that they might not have a large impact on the budget but could have an impact on service and the perception of service. There needed to be consideration on how they would be perceived by the public. Large items would not be a problem. He was a defender of the council contingency funds in the manner in which they were used for various programs for the city. Council Member Heggins expressed a major concern about the over 65 property tax exemption. She understood it was a large item for the city but it was also a large item for the seniors. She did not like the idea of cutting that and citizens were expecting the city to keep on schedule. Council Member King asked for more information on the Downtown Incentive Grant. Mayor Burroughs asked if the School Resource Officers revolved among the schools. Roy Minter, Police Chief, stated that there were seven School Resource Officers who did not rotate schools. They remained in their main school in order to build rapport in the schools. If funding was reallocated, the officers might have to rotate. Council Member Gregory stated that if the costs were transferred to the DISD, it would help the city's budget but would also affect the DISD. He asked if there had been any discussion of eliminating the officers. Minter stated that it had not been discussed. Council Member Gregory asked about the cost of each officer. Minter stated that the total cost of the program was $750,000. Mayor Pro Tem Kamp asked what the reimbursement from the DISD was for that $750,000. City of Denton City Council Minutes June 15, 2010 Page 6 Minter stated that the DISD reimbursed the City for 50% of one position. Council Member Engelbrecht asked how that compared to other cities with resource officers. Minter stated that most other cities charged their ISD 50% of costs. Denton was one of the few cities that picked up most of the costs for the officers. Mayor Burroughs asked for the amount of Internal Service Funds. Langley stated they were still working on the figures. Council Member Watts requested a water park subsidy discussion and if there were any options to help reduce the costs such as someone else owning the park and the city lease it. Council Member Gregory stated that the water park had been paying its own way and the city subsidized some of the costs for the natatorium. Langley stated that the city was subsidizing $400,000 per year. Council Member Watts requested a break out of the natatorium and the water park. Council Member Engelbrecht requested staff take similar park operations and provide the cost to the city for those such as the softball fields at North Lakes Park to show what was the true cost for maintenance as opposed to the revenue received. Council Member Gregory suggested looking at a reduction in programs by 10% and what that would save in costs. Council Initiatives (not included in previously discussed forecast) - included the impact of the Downtown Implementation Plan, the new animal shelter facility, a new convention center and hotel facility, the update of the Denton Comprehensive Plan, bicycle master plan update and implementation, the update of the Mobility Plan, and transportation initiatives such as regional toll revenue matching funds, annual street maintenance costs, anti-idling ordinance. Council Member Gregory thought that funds had already been found and completed with the Downtown Implementation Plan. Langley stated that funds would have to be found for certain improvements such as landscaping and drainage. Council Member Gregory stated that implementation of the bike master plan and CIP plan would be different. He asked what the estimate would be for the updating of the Denton Comprehensive Plan. Langley stated that it was approximately $800,000 dollars and that it could not be done internally. City of Denton City Council Minutes June 15, 2010 Page 7 Council Member Gregory asked if there was a way to review the plan instead of a complete update to get at the Council goal and not cost that kind of money. City Manager Campbell stated that it might be a possibility and that staff could look at those types of options. GO Debt Service Fund -no tax rate increase was proposed for the GO Debt Service Fund. Staff had considered shifting a portion of the tax rate to the General Fund but it did not appear feasible at this time. Appraisal growth assumptions mirrored those in the General Fund. Staff was recommending issuing $4.1 million GO (remaining from the 2005 bond election) and $2.9 million CO bonds which was on tonight's agenda. Future issuances would depend on appraised value growth. Staff was recommending putting the Public Safety Training Facility on indefinite hold until funding could be obtained. The future size and timing of the next GO bond election would also be dependent on economic factors. Other Key Information - possible service enhancements included (1) considering absorbing the credit care convenience fee, (2) an audio camera system, (3) Profitstars Remit Plus software, and (4) CIS maintenance. Including the above enhancements, the proposed FY 2010-11 expenditures were roughly equal to the FY 2009-10 budget. Possible service reductions included reducing the hours of operation during the week and close on Saturdays. Council Member Gregory asked what was the most cost efficient method to pay a utility bill. Langley stated it was an automatic draft. Mayor Burroughs stated that he received complaints from people paying a small bill amount and then having to also pay the credit card fee. He suggested a percent rather than set fee. Langley replied that option would be explored if the convenience fee were kept. Utility Funds - the Public Utilities Board was still reviewing the financial plans for all of the utility funds. All funds assumed an average 2% increase in compensation for employees. Each utility fund was experiencing revenue decline due to slower growth. Expenditure reductions had occurred in each utility fund to partially offset revenue declines. The emphasis was to maintain the service delivery level. Langley reviewed the electric fund figures, water fund, wastewater fund, and solid waste fund. Council Member Gregory stated again that he would like to look at all numbers for utility increases. Health insurance fund - it was expected that employee insurance premiums would be increased by an average of approximately 8%. The change in employee costs would range from $28 to $32 per month with additional employee rate increases likely in future years. Increases in co-pay amounts, for urgent care and ER visits as well as a change in the prescription formulary was contemplated. The rate stricture would be aligned with the cost to the plan. Mayor Burroughs suggested discussing the aggregate of all of the costs perhaps with a single carrier quote. City of Denton City Council Minutes June 15, 2010 Page 8 Summary - Langley reviewed the summary of revised assumptions in terms of appraised value growth, sales tax growth, compensation, health insurance and tax rate/$100. He also presented the schedule of next steps in the budget process. 3. Receive a report, hold a discussion, and give staff direction concerning: (1) proposed amendments to Subchapter 23 - Definitions - of the Denton Development Code (DDC); (2) proposed amendments to Subchapter 22 of the Denton Development Code (DDC) regarding gas well drilling and production; (3) proposed amendment to Subchapter 16 of the DDC regarding gas well development platting; (4) proposed amendments to the schedule of fees contained in Ordinance 2005-237 pertaining to gas well drilling and production within the City limits and the Extra-Territorial Jurisdiction; and (5) hold a discussion, and give staff direction concerning the types of analytical testing that has been conducted at other gas well monitoring efforts within the Barnett Shale. (Gas Well Ordinance) Mark Cunningham, Director of Planning and Development, stated that at the December 1, 2009 council meeting, staff presented findings from research and analysis of gas well drilling and production ordinances from seven neighboring cities. Council directed staff to conduct further research and analysis of various questions that were raised during the presentation. During the April 20, 2010 Council Work Session staff presented the results of the additional research and analysis requested by Council. Included in the discussion was the composition of the Fort Worth Gas Well Drilling Review Committee, examples of decibels for day to day activity, gas well conditions from prior approvals, zoning district requirements for gas wells, air quality tests, environmental policies, definitions, setbacks and legal challenges, noise regulations, height of storage tanks, requirement for environmental insurance, limitations on flaring activities, Texas Railroad Commission requirements and general chemicals used in drilling operations. Council directed staff to move forward with amending the city's gas well ordinance, and to consider appropriate increase of relevant fees. Council also directed staff to provide information concerning the types of analytical testing that had been conducted at other gas well monitoring efforts within the Barnett Shale and to determine whether there were any testing requirements within other Metroplex ordinances concerning soil testing and ground water testing. Following that meeting staff met and discussed the process and strategy by which the city's current gas well ordinance could be amended. It was determined that due to the magnitude and complexity of the topic, it would be best to approach the task in two phases. Phase II would include a comprehensive rewrite of the entire gas well ordinance and would require consulting with various gas well experts in terms of planning and legal issues, gas well operational issues and environmental issues. Phase I would deal with a gas well fee schedule, noise mitigation, separation distance, screening requirements, definitions, gas well development plan and gas well permits. Gas well fees - the current fees were established in 2005 and did not cover the cost of service. Denton's gas well fees were the lowest of the 8 cities surveyed. It was suggested to implement a fee increase and add new fees to support salary and benefits for new gas well personnel. The proposed personnel would consist of a gas well administrator, two gas well inspectors and an office assistant. Gas well fees comparisons were presented in terms of gas well plat, gas well inspections, gas well plat amendment, gas well plat extension, transfer of operation, annual City of Denton City Council Minutes June 15, 2010 Page 9 administrative and inspection, fracture/drill pond, pipeline permit, compressor facility permit, watershed protection permit, sign installation and appeal fee. Cunningham also presented the staff recommended fees. He indicated that with the annual fees, the city could legally go back and assess an annual inspection fee on existing wells. City Attorney Burgess indicated that the annual fee would apply across the board according to the triggering event. The effective date could be the key trigger for assessment of fees. Cunningham indicated that the fees would be for cost of service. A full cost of service analysis would be presented at the Council's July 20th meeting. Financial impact - staff would provide expenditures and revenue figures on July 20th. Recommended definitions - of the seventeen recommended definitions, two dealt with protected uses and residence which were relative to setbacks. Council Member Gregory indicated that he saw in other city ordinances, the term dwelling. He questioned if drilling could take place close to an office building as it was not listed as a dwelling. Cunningham replied yes that could happen. Council Member Gregory asked if there was a different reference indicating the limit on how close to an office or office building the site could be located. Cunningham stated that it would be found in the gas well minimum separation requirements. He reviewed the recommended setback requirements in terms of protected uses and all other use or features. A setback waiver/variance provision indicated that the minimum separation requirement could be reduced by the granting of a variance by the Zoning Board of Adjustment or if all of the property owners of the affected uses within the reduced separation area agreed to the reduction with a notarized waiver and the waiver was attached to the permit application. Council Member Watts asked about the recommended setback of 1,000 feet from any lot within a previously platted residential subdivision. He questioned if there were no plats of residential lots in a previously platted subdivision, would the 1000 feet apply because there were no platted lots. City Manager Campbell stated that previously the setback was from the time the permit was issued. Council Member Watts stated if there was a large residential subdivision that was platted and had one house on the fringe, the restricted 1000 feet would be from the whole platted subdivision. He questioned the one house provision and the significance of one stricture. Cunningham stated the current language in the Denton Comprehensive Code indicated the deciding factor was who came to the table first. The one house was there because the residential subdivision was there first so the gas well had to respect the subdivision. City of Denton City Council Minutes June 15, 2010 Page 10 Council Member Watts stated he was not comfortable with the language. He understood the intent but not the rationale. Council Member King stated that the one house kept the city or community from changing the zoning if there already was a house on it. The gas well company would have to preplan to protect the property owners. Mayor Burroughs asked if a small development had one house, there could be no drilling within 1000 feet because of that far lot. Cunningham stated that drilling could not be done straight out. It would require a variance or waiver from the Zoning Board of Adjustment. Mayor Burroughs stated that they were not regulating the wells. They were regulating emissions, drainage, noise but not the placement of the wells. Council Member Gregory stated that he wanted to protect a person already in a house from a well being drilled too close. If the well was already there, then the individual had the right to live next to the well. Cunningham reviewed the setback waiver/variance procedure. Due to time constraints, this item was continued after the regular meeting. 4. Receive a report, hold a discussion, and give staff direction concerning a resolution of the City Council of the City of Denton, Texas supporting "extended producer responsibility" to promote the shift of disposal costs from local governments to producers of items through state legislation; authorizing its execution by the City Manager; and providing an effective date. This item was not considered. 5. Receive a report, hold a discussion and give staff direction regarding nominations/appointments to the City's Boards and Commissions. This item was considered after the regular meeting. Council convened into the Closed Meeting at 5:50 p.m. 1. Closed Meeting: A. Deliberations regarding consultation with the City Attorney - Under Texas Government Code Section 551.071, Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087. 1. Receive a report and hold a discussion regarding legal issues on matters in which the duty of the attorney to the governmental body under the Texas City of Denton City Council Minutes June 15, 2010 Page 11 Disciplinary Rules of Professional conduct of the State Bar of Texas clearly conflicts with the provisions of the Texas Open Meetings Act, Chapter 551 of the Texas Government Code. Also hold a discussion regarding granting economic development incentives for a 400,000 square foot distribution center project to be located in the Airport Industrial Area on Airport Road. This discussion shall include commercial or financial information the City Council has received from company which the City Council seeks to have locate, stay, or expand in or near the territory of the city, and with which the city council is conducting economic development negotiations; including the offer of financial or other incentives. This item was not considered. B. Certain Public Power Utilities: Competitive Matters - Under Texas Government Code, Section 551.086. 1. Receive information and a presentation from Denton Municipal Electric staff regarding a public power utility competitive and financial matter, dealing with terms regarding a possible extension of the term and other provisions of the Power Purchase Agreement, entered into on May 1, 2009 by and between the City and NextEra Energy Power Marketing for the acquisition by the City of wind energy and renewable energy credits; discuss, deliberate, consider, and provide staff with direction regarding same. Council Member Gregory motioned, Mayor Pro Tem Kamp seconded that this item was appropriate for Council to discuss in Closed Session under the Public Power Utilities competitive Matters exception. On roll call vote, Council Member King "aye", Council Member Heggins "aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Burroughs "aye", Council Member Watts "aye", and Mayor Pro Tem Kamp "aye". Motion carried unanimously. Council Member Watts motioned, Council Member Gregory seconded to adopt Ordinance 2010- 164 extending the contract with NextEra Energy Power Marketing. On roll call vote, Council Member King "aye", Council Member Heggins "aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Burroughs "aye", Council Member Watts "aye", and Mayor Pro Tem Kamp "aye". Motion carried unanimously. C. Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. 1. Discuss, deliberate, and receive information from Staff and provide Staff with direction pertaining to the acquisition or the condemnation of fee simple tracts for Eagle Drive Drainage Improvements - Phase I, the limits of which being along the existing branch between South Elm Street and South Locust Street, south of Maple Street, in the City of Denton, Denton County, City of Denton City Council Minutes June 15, 2010 Page 12 Texas. Consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the tracts referenced above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the Denton City Council under the Texas Rules of Disciplinary Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceedings or potential litigation. D. Consultation with Attorney -Under Texas Government Code Section 551.071. 1. Receive a briefing and status report from the City's attorneys regarding the litigation entitled The University of North Texas, Appellant v. City of Denton, Texas, Appellee, now pending in the Court of Appeals Second Judicial District, sitting in Fort Worth, Texas, Cause No. 02-09-00395-CV. Discuss, deliberate and provide the attorneys with direction. A public discussion of these legal matters would conflict with the duty of the City's attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. 2. Consider and discuss the status of legal issues relating to the settlement of City of Denton v. Biodiesel Industries, Inc., et al., Cause No. 4:08-cv-00173 and provide direction to the city's attorneys regarding same. 3. Receive a briefing from the City's attorneys regarding legal issues related to parking and speed matters on City streets running through or adjacent to the University of North Texas and Texas Woman's University. Discuss, deliberate and provide attorneys with direction. A public discussion of these matters would clearly conflict with the duty of the City's attorneys to the governmental body under Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. Council convened in a regular session in the City Council Chambers at 6:40 p.m. 1. PLEDGE OF ALLEGIANCE Council and members of the audience recited the Pledge of Allegiance to the U. S. and Texas flags. 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards 1. Recreation and Parks Month Mayor Burroughs presented the proclamation to Emerson Vorel, Director of Parks and Recreation, for Recreation and Parks month. City of Denton City Council Minutes June 15, 2010 Page 13 2. Denton Recycles in the Library Day Mayor Burroughs presented the proclamation to Shirlene Sitton and Lindsey Preston for Denton Recycles in the Library Day. 3. Drinking Water Week Awards Kara Robinson, Public Communications Office, presented the awards to the DISD students. 4. Fred Douglass/Fred Moore Days Mayor Burroughs presented the proclamation to Ruby Cole and family. 3. CONSENT AGENDA Mayor Burroughs stated that Item 3E would be considered separately. Bob Clifton presented Speaker Cards for Items 'A, 31C, 'IF, 'IT, and 3U. Council Member Gregory motioned, Mayor Pro Tem Kamp seconded to approve the Consent Agenda and accompanying ordinances and resolutions with the exception of Item 3E. On roll call vote, Council Member Watts "aye", Council Member Heggins "aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Pro Tem Kamp "aye", Mayor Burroughs "aye", and Council Member King "aye". Motion carried unanimously. Ordinance No. 2010-138 A. Consider adoption of an ordinance authorizing the City Manager to execute an Interlocal Cooperative Purchasing Program Agreement with Greenville Electric Utility System (GEUS) under Section 271.102 of the Local Government Code, to authorize participation in various GEUS contracts for the purchase of various goods and services; authorizing the expenditure of funds therefor; and declaring an effective date (File 4508-Interlocal Agreement with GEUS). Ordinance No. 2010-139 B. Consider adoption of an ordinance accepting competitive bids and awarding a Public Works Contract for the rehabilitation of the Pecan Creek Water Reclamation Plant Raw Pump Station 42; providing for the expenditure of funds therefor; and providing an effective date (Bid 4500-Raw Pump Station 42 MCC Rehabilitation awarded to the lowest responsible bidder meeting specification, C&G Electric, Inc. in the amount of $199,700). The Public Utilities Board recommends approval (5-0). Ordinance No. 2010-140 C. Consider adoption of an ordinance authorizing the City Manager to execute Change Order Number One to the contract between the City of Denton and Corbet Group, Inc.; providing for the expenditure of funds therefor; and providing an effective date (Bid 4444-Downtown City of Denton City Council Minutes June 15, 2010 Page 14 Denton Transit Center Change Order Number One in the amount of $151,254.86 for a total contract award of $1,887,254.86). Ordinance No. 2010-141 D. Consider adoption of an ordinance of the City of Denton, Texas, approving the 2011 Budget of the Denton Central Appraisal District, and providing an effective date. Ordinance No. 2010-142 E. Consider adoption of an ordinance approving a Chapter 380 Economic Development Grant Agreement with Allegiance Hillview, LP; and providing an effective date. Linda Ratliff, Director of Economic Development, stated that the Council had approved a Chapter 380 Program Grant Agreement with Allegiance Hillview on May 15, 2007. The Agreement provided a reimbursement to Allegiance for public infrastructure costs, including the cost to widen Highway 380 from Bonnie Brae to I-35. Allegiance would receive a portion of the sales tax generated by the project to recoup those expenditures. The grant would be equal to 50% of the total sales tax for three years and 333% for seventeen years. A maximum of $62 million was allowed. Under the original agreement, the developer was required to complete 400,000 square feet of retail on the north side of Highway 380 and 600,000 square feet on the south side of Highway 380 before they could receive reimbursement for eligible costs. Council approved an amendment to the original agreement in March 2009 due to the poor state of the retail economy. The amendment separated the development into two phases with the square footage for the north and south sides remaining the same. The incentive of a maximum of $62 million was split as well with $20 million allowed for Phase I and $42 million for Phase IL The years and percentages also changed. Since it appeared that the Phase I maximum of $20 million could be reached in 15 years, the number of years for that phase was decreased to 15. Phase 11 remained at 20 years. The percentages were increased to begin at 60% and then decreasing in subsequent years to 50% and 33%. Since the first amendment, Allegiance Hillview had partnered with RED Development to begin constricting Phase IL Their plan began with approximately 800,000 square feet of retail/commercial space for Phase 11 which included the Town Center project. Total retail/commercial build-out for Phase 11 was approximately 1.2 million square feet. RED Development believed that they had more accurate projections of sales tax revenues and had requested a second amendment to the Chapter 380 agreement. The proposed second amendment would still have the project in phases and the maximum reimbursement would still be at $62 million. Phase I would revert back to 20 years as in the original agreement with sales tax reimbursements that exceeded $20 million being applied to Phase II during the 20-year term, provided that all Phase II thresholds were met by 2015 and incentive payments for Phase II had not been initiated. The agreement provided for a 50% share in the city's sales tax revenue generated by the project for a period of 20 years for each phase, eliminating the need for dollar thresholds as in the Second Amendment. In the First Amendment, the developers were required to spend a minimum of $20 million in infrastructure costs for Phase I and a minimum of $42 million for Phase IL The Second Amendment no longer would require the developer to spend these minimum amounts per phase. Instead, it limited the reimbursement to the actual amount of eligible costs, not to exceed a total of $62 million so that the developer would not be penalized for coming in under budget. City of Denton City Council Minutes June 15, 2010 Page 15 Council Member Gregory questioned what the $62 million represented. Ratliff stated that originally the request was for over $90 million for roads, water, sewer, drainage, public improvements, but not for parks. The agreement was for only public improvements and only for a portion of that. Council Member Gregory asked if the development was built out to the specifications as per the agreement and sales tax was slow and stayed slow for a long time, if at end of 20 years what would happen. Ratliff stated that agreement would end and whatever they had received would be all they would get. Mayor Pro Tem Kamp stated that the $62 million generated would be from sales tax and not from any other source. Ratliff stated that was correct and also excluded anchors or junior anchors that might move from the Golden Triangle Mall. Council Member Watts questioned that now that Highway 380 was almost done along with the major infrastructure, how the costs would be monitored on what was paid and the process to verify that. Ratliff stated that they were in the process of reviewing the first round of submissions and under each category there was an itemized statement of what was spent. The engineers were reviewing the actual invoices and payments to make sure they were what they said they were. This process would continue as the project moved along. Council Member Gregory asked if the Wal-Mart on Loop 288 would be closed. Ratliff stated that there had not been any talk about closing the Loop 288 store. It was one of the best producing stores in the area. Mayor Pro Tem Kamp motioned, Council Member Watts seconded adopt the ordinance. On roll call vote, Council Member Watts "aye", Council Member Heggins "aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Pro Tem Kamp "aye", Mayor Burroughs "aye", and Council Member King "aye". Motion carried unanimously. Ordinance No. 2010-143 F. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager or his designee to execute an agreement by and between North Central Texas Council of Governments ("NCTCOG") and the City of Denton, Texas, regarding the grant allocated to Denton under the North Central Texas Alternative Fuel and Advanced Technology Investments Act as part of the American Recovery and Reinvestment Act for those projects identified for funding under the Conservation Research and Development, as filed with the United States Department of Energy in the maximum amount of $725,514; providing for the expenditure of funds and an effective date. City of Denton City Council Minutes June 15, 2010 Page 16 Resolution No. R2010-017 G. Consider approval of a resolution of the City Council of the City of Denton, Texas supporting "extended producer responsibility" to promote the shift of disposal costs from local governments to producers of items through State legislation; authorizing its execution by the City Manager; and providing an effective date. Resolution No. R2010-018 H. Consider approval of a resolution nominating a member to the Board of Managers of the Denco Area 9-1-1 District; and declaring an effective date. Ordinance No. 2010-144 L Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and the Denton Animal Shelter Foundation for supplemental funding for advertising, printing and supplies; providing for the expenditure of funds; and providing for an effective date. ($1,050) Ordinance No. 2010-145 J. Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and the Juneteenth Committee for supplemental funding for Juneteenth; providing for the expenditure of funds; and providing for an effective date. ($750) Ordinance No. 2010-145 K. Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and Hearts for Homes; providing for the expenditure of funds; and providing for an effective date. ($600) Approved the Exception listed below. L. Consider a request for an exception to the Noise Ordinance for the purpose of performing live jazz music at the Sweet Y Cafe, located at 511 Robertson Street, on Friday and Saturday, June 18 and 19, 2010, beginning at 7:30 p.m. and concluding at 11:30 p.m. This request is for an extension of hours after 10:00 p.m. for amplified sound. The amplified sound will remain at the allowable 65 decibels. Staff recommends approval of the request of extending the hours of operation for amplified sound to 11:30 p.m. Ordinance No. 2010-147 M. Consider adoption of an ordinance of the City of Denton authorizing and ratifying an agreement between the City of Denton, Texas and the Dog Days of Denton for supplemental funding for the Dog Days Denton Event on June 4, 2010; providing for the expenditure of funds; and providing for an effective date. ($450) Approved the minutes listed below. City of Denton City Council Minutes June 15, 2010 Page 17 N. Consider approval of the minutes of: April 13, 2010; April 20, 2010; May 3, 2010; May 4, 2010; May 11, 2010; and May 18, 2010. Ordinance No. 2010-148 0. Consider adoption of an ordinance approving an assignment of a leasehold interest in an airport lease agreement at Denton Municipal Airport from Michael Moore, to Tony A. Riley located at 4710 Lockheed, Denton, Texas at the Denton Municipal Airport and providing an effective date. The Airport Advisory Board recommends approval (7-0). Ordinance No. 2010-149 P. Consider adoption of an ordinance approving an assignment of a leasehold interest in an airport lease agreement at Denton Municipal Airport from Avionics International Supply, Inc. to Andy Johnson located at 1750 Westcourt, Denton, Texas at the Denton Municipal Airport and providing an effective date. The Airport Advisory Board recommends approval (7-0). Ordinance No. 2010-150 Q. Consider adoption of an ordinance approving an assignment of a leasehold interest in an airport lease agreement at Denton Municipal Airport from Andy Johnson to Global Maritime Supply Management, LLC located at 1750 Westcourt, Denton, Texas at the Denton Municipal Airport and providing an effective date. The Airport Advisory Board recommends approval (7-0). Resolution No. R2010-019 R. Consider approval of a resolution by the City Council of the City of Denton, Texas, appointing an alternate to the Board of Directors of the Denton County Transportation Authority; providing a repealer and providing; and providing an effective date. Resolution No. R2010-020 S. Consider approval of a resolution of the City Council of the City of Denton, Texas authorizing the filing of a project application with the North Central Texas Council of Governments for a Regional Solid Waste Program - Local Implementation Project, Food Waste Composting; delegating and authorizing George C. Campbell, City Manager, or his designate, to act on behalf of the city in all other matters that are related to this project application, pledging that if funding for this project is received, the City of Denton, Texas will comply with all project requirements of the North Central Texas Council of Governments, the Texas Commission on Environmental Quality, and the State of Texas, and providing for an effective date. The Public Utilities Board will consider this item on June 14, 2010. Ordinance No. 2010-151 T. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager or his designee to execute a Real Estate Contract of Sale between the City of Denton and Odis J. Fuller, Jr. and wife, Kathy A. Fuller and other documents necessary to acquire two tracts, one being approximately 0377 acre of land, the other being approximately 0.049 acre of land, both located in the William Loving Survey, Abstract City of Denton City Council Minutes June 15, 2010 Page 18 Number 759, City and County of Denton, Texas; authorizing the expenditure of funds therefore; and providing an effective date. The Public Utilities Board will consider this item on June 14, 2010. Ordinance No. 2010-152 U. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager or his designee to execute a Release and Settlement Agreement and a Temporary Lease Agreement between the City of Denton and Denton Bible Church regarding two acquisition tracts, one being approximately 0377 acre of land, the other being approximately 0.049 acre of land, both located in the William Loving Survey, Abstract Number 759, City and County of Denton, Texas; authorizing the expenditure of funds therefore; and providing an effective date. The Public Utilities Board will consider this item on June 14, 2010. Ordinance No. 2010-153 V. Consider adoption of an ordinance of the City Council of the City of Denton, Texas authorizing the City Manager to execute a fourth amendment to agreement for professional legal services with the law firm of Walker Sewell, LLC for professional legal services relating to litigation styled: Ex Parte Texas Municipal Power Agency, Cause No. D-1-GN- 08-003426, pending in the 126th Judicial District Court in and for Travis County, Texas; Ex Parte Texas Municipal Power Agency - II, Cause No. D-1-GN-08-3693, pending in the 261st Judicial District Court in and for Travis County; and the litigation styled Texas Municipal Power Agency, Plaintiff vs. City of Bryan, Texas, Defendant, counter-plaintiff and third-party plaintiff, vs. City of Denton, Texas and the City of Garland, Texas, third- party defendants, Cause No. 28169, pending in the 506th Judicial District Court in and for Grimes County, Texas; together with sixteen related public utility commission of Texas regulatory proceedings; providing for retroactive approval; authorizing the expenditure of funds therefor; and providing an effective date. The Public Utilities Board recommends approval (5-0). Ordinance No. 2010-154 W. Consider adoption of an ordinance authorizing an encroachment agreement between the City of Denton, as grantor and HTA-Denton, LLC., a Delaware limited liability company, as grantee, regarding a 7.3 square foot tract of land that encroaches into a 20 foot Public Utility and Sidewalk easement; said Public Utility and Sidewalk Easement being dedicated as a part of the Rehab Hospital Addition, recorded in Cabinet X, pages 929 and 930, Plat Records, Denton County, Texas and being in the E. Puchalski Survey, Abstract No. 996, City of Denton, Denton County, Texas; providing an effective date. The Public Utilities Board will consider this item on June 14, 2010. Ordinance No. 2010-155 X. Consider adoption of an ordinance approving an Underground Pipeline Easement between the City of Denton, Texas, as grantor and EnCana Oil & Gas (USA) Inc., a Delaware Corporation, as grantee, regarding a 0.04 acre tract of land located in Lot 1, Block 1 of the Robson Ranch Water Reclamation Plant Addition, recorded in Cabinet R, page 365, Plat Records, Denton County, Texas and being in the T & P.R.R Survey, Abstract No. 1301, in the City of Denton, Denton County, Texas; and providing an effective date. The Public Utilities Board will consider this item on June 14, 2010. City of Denton City Council Minutes June 15, 2010 Page 19 Approved the appointment listed below. Y. Consider the appointment of Dr. Lane Rawlins to the City's Economic Development Partnership Board. Ordinance No. 2010-156 Z. Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a purchase order through the Buy Board Cooperative Purchasing Network for the acquisition of residential refuse and recycling carts by way of an interlocal agreement with the City of Denton; and providing an effective date (File 4526-Residential Refuse and Recycling Carts for the Solid Waste Division awarded to Rehrig Pacific Company in the amount of $115,456) This item will be considered by the Public Utilities Board at its meeting on June 14, 2010. Council considered Items 5A, 5B and 5C under Items for Individual Consideration. 5. ITEMS FOR INDIVIDUAL CONSIDERATION Ordinance No. 2010-161 A. Consider adoption of an ordinance considering all matters incident and related to the issuance, sale and delivery of up to $64,000,000 in principal amount of "City of Denton Certificates of Obligation, Series 2010"; authorizing the issuance of the certificates; approving and authorizing instruments and procedures relating to said certificates; and enacting other provisions relating to the subject. Bryan Langley, Director of Finance, presented background information for Items 5A, 5B and 5C. Staff discussed these items with the Audit/Finance Committee which recommended approval. The Notice of Intent for Item 5A had been issued in accordance with state law. The certificates would provide funding of $63,110,000 for project costs for General Government, Solid Waste projects and Utility System Debt for electric, water and wastewater projects. The General Obligation funded projects in Item 5B represented the projects approved by the voters in the 2005 bond election. In order to accommodate project scheduling, staff was only recommending the issuance of $4,115,000. The remaining projects would be budgeted in the FY 2010-11 CIP. If approved by Council, the bonds would be sold through a competitive bid process. The refunding of existing debt for Item 5C was previously discussed with the Audit/Finance Committee and the City Council. However, due to current market situations, the refunding issuance was no longer economically feasible. Staff was seeking approval of a six month parameters ordinance that would enable staff to sell refunding bonds when, and if, market conditions changed. Since bond market conditions could change rapidly, staff was requesting the authority to execute the refunding issuance at any time before December 15, 2101. Greg Shaker, Bond Counsel, was here for legal questions as well as David Medanich from First Southwest Company. City of Denton City Council Minutes June 15, 2010 Page 20 David Medanich, First Southwest, presented a booklet of information regarding the bond sale. The Certificates of Obligation had received 11 bids and the General Obligation bonds had received six bids. He provided historical bond sale information for the City of Denton. It was recommended that the city award the Certificates of Obligation to the Banc of American Merrill Lynch and the General Obligation bonds to Wells Fargo Advisors. Mayor Burroughs asked for an estimate of savings doing this issuance. Langley stated that it would be about $1 million over the life of the bonds. Council Member Gregory asked for more details with Item 5C giving the City Manager the right to sign off on bonds due to economic conditions. Langley stated that the ordinance would give authority for the City Manager to move forward with the bonds as conditions changed hourly and had certain parameters that had to be followed. Council Member Watts asked if conditions allowed the City Manager to do this, what would be the estimated savings. Langley replied about $6.5 million over the life of the debt. Bob Clifton presented Speaker Cards for Items 5A, B and C. Council Member Gregory motioned, Council Member Watts seconded to adopt the ordinance for 5A. On roll call vote, Council Member Watts "aye", Council Member Heggins "aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Pro Tem Kamp "aye", Mayor Burroughs "aye", and Council Member King "aye". Motion carried unanimously. Ordinance No. 2010-162 B. Consider adoption of an ordinance considering all matters incident and related to the issuance, sale and delivery of up to $4,115,000 in principal amount of "City of Denton General Obligation Bonds, Series 2010"; authorizing the issuance of the bonds; approving and authorizing instruments and procedures relating to said bonds; and enacting other provisions relating to the subject. Mayor Pro Tem Kamp motioned, Council Member Heggins seconded to adopt the ordinance. On roll call vote, Council Member Watts "aye", Council Member Heggins "aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Pro Tem Kamp "aye", Mayor Burroughs "aye", and Council Member King "aye". Motion carried unanimously. Ordinance No. 2010-163 C. Consider adoption of an ordinance considering all matters incident and related to the issuance, sale and delivery of up to $50,000,000 in principal amount of "City of Denton General Obligation Refunding Bonds, Series 2010A"; establishing parameters for the redemption of certain outstanding obligations of the City; authorizing the issuance of the bonds; approving and authorizing instruments and procedures relating to said bonds; and City of Denton City Council Minutes June 15, 2010 Page 21 enacting other provisions relating to the subject. Council Member Engelbrecht motioned, Council Member King seconded to adopt the ordinance. On roll call vote, Council Member Watts "aye", Council Member Heggins "aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Pro Tem Kamp "aye", Mayor Burroughs "aye", and Council Member King "aye". Motion carried unanimously. The Council returned to the regular agenda order. 4. PUBLIC HEARINGS A. Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, providing for a Specific Use Permit to allow a drive-thru facility associated with a proposed bank on property within a Neighborhood Residential Mixed Use (NRMU) zoning district. The 0.949 acre site is located approximately 250 feet west of the intersection of Teasley Lane (F.M. 2181) and Lillian Miller Parkway; and providing for a penalty in the maximum amount of $2,000.00 for violations thereof, severability and an effective date (510-0001). The Planning and Zoning Commission recommends approval of this request (6-0). Mark Cunningham, Director of Planning and Development, presented the details of the proposal. He stated that First State Bank had requested a specific use permit to allow a bank with a drive- through facility. The Planning and Zoning Commission recommended approval as did the Development Review Committee. The conditions suggested by the Planning and Zoning Commission included the specific use permit would only be for the proposed four-lane drive- through with one pass-through lane in association with the bank facility and the proposed bank facility drive-through would be limited to the hours of operation from 8:00 am to 6:00 pm Monday- Friday and 8:00-12 noon on Saturdays. Council Member Engelbrecht asked about the reason for the opposition from the DATCU. Cunningham stated that the concern was that there would be too many drive through facilities using one ingress and egress. The CVS Pharmacy had a drive through as did the DATCU and one more would be too many. Council Member Engelbrecht asked if turns could be made out the drive in both directions or only a right turn. Cunningham stated that there was a median there so only a right in- right out would be allowed. Council Member Engelbrecht asked about the exit out of the CVS north lot which allowed for a left turn. Cunningham stated that there were two exits - one allowed for a right only turn and the second had a break in the median to turn west. City of Denton City Council Minutes June 15, 2010 Page 22 Council Member Engelbrecht felt that there was not a good traffic flow operation in the way the plan was laid out. He felt there was a limitation on the way traffic could move about. Council Member Gregory stated that both driveways from CVS and the one from the proposed bank would stay there with the bank going in. Cunningham replied correct that would be the exit to the far west. Mayor Pro Tem Kamp asked if the main entrance to the bank was one way or two way. Cunningham stated that it was two way with any customer going through those areas. The Mayor opened the public hearing. The following individuals spoke during the public hearing: Bob Clifton, 1800 Morse, Denton, 76205 - opposed Marty Rivers, applicant - favor A Comment Card was submitted by Alex Payne in support. Council Member Watts asked Mr. Rivers about the hours of operation. Rivers replied that the hours would be acceptable for now but he would rather not have the restriction. Currently the drive through did not open until school had already started. Mayor Pro Tem Kamp asked about the bank's recourse if the ordinance were passed with the restrictive hours. City Attorney Burgess indicated that in order to change the hours, the bank would have to apply for a new specific use permit and associated public hearing. That restriction could be eliminated if Council desired. The Mayor closed the public hearing. Council Member King motioned to adopt the ordinance with both conditions from the Planning and Zoning Commission. Council Member Heggins seconded. Council Member Watts suggested a friendly amendment to the motion to remove the hours of operation for the drive through. Council Members King and Heggins accepted the friendly amendment. Council Member King motioned, Council Member Heggins seconded to adopt the ordinance with the removal of the restriction on the hours of operation of the drive through. On roll call vote, Council Member Watts "aye", Council Member Heggins "aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Pro Tem Kamp "aye", Mayor Burroughs "aye", and Council Member King "aye". Motion carried unanimously. City of Denton City Council Minutes June 15, 2010 Page 23 B. Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, providing for a zoning change from a Neighborhood Residential 3 (NR-3) zoning district classification and use designation to a Neighborhood Residential Mixed Use (NRMU) zoning district classification and use designation on tracts 256, 257, 258, 260 and 261 of the E. Puchalski survey, with an overlay district on those same tracts, plus tract 263, containing additional restrictions as noted; the area for the zoning change encompasses approximately 4.678 acres of land located at the northeast corner of North Bonnie Brae Street and West Oak Street, in the City of Denton, Denton County, Texas. The Planning and Zoning Commission recommended approval of the rezoning of six (6) of the seven lots from Neighborhood Residential 3 (NR-4) to Neighborhood Residential Mixed Use (NRMU) subject to overlay conditions, as provided in Exhibit 8 (5-1). A SUPERMAJORITY VOTE BY COUNCIL IS REQUIRED FOR APPROVAL. Mark Cunningham, Director of Planning and Development, presented the details of the proposal which consisted of rezoning for medical offices with a restrictive overlay. The property was comprised of seven separate tracts of land and adjoined the current West Oak Historic District. One lot on the street was not included in the proposal. There were many different uses within a 1/4 mile radius of the site which was currently zoned NR-3 with various other zoning categories around the proposal. The restrictive overlay district would not allow attached single-family dwellings, dwellings above businesses, hotels, semi-public halls, clubs and lodges, veterinarian clinics and bakeries and business and trade schools. Building height would be limited to 40 feet and no new strictures would be allowed at 2286 West Oak, however, the existing swimming pool, gazebo and guest house could be removed or repaired for the same function. Commercial and retail strictures, with the exception of professional services and office buildings, would be limited to 7,500 square feet with a specific use permit required for additional square footage. An eight foot high solid screen fence (good side out) constricted with steel posts and a decorative cap would be required in the buffer yard, in lieu of the required buffer shrubs. Non-single family access would be from Bonnie Brae or Oak Street and not from Houston Place. Staff was recommending that the 2286 West Oak lot not be included in the rezoning because it was adjacent to the West Oak Historic District and would provide a buffer between the commercial development and the West Oak District. Seven notices in opposition were received which triggered the supermajority vote by Council. The Development Review Committee originally recommended denial, but would recommend approval of the rezoning excluding that one property mentioned. The Planning and Zoning Commission recommended denial as proposed by the applicant but approval of the 6 of 7 properties with overlay restrictions. Council Member Gregory stated that he was troubled with spot zoning surrounding one private residence that was NR3 with NRMU. He noticed that the owner of that property did not submit a reply to the public hearing notice. He was uncomfortable surrounding one residential lot with NRMU. Council Member Engelbrecht asked what would prevent further commercial creep to the east. City of Denton City Council Minutes June 15, 2010 Page 24 Cunningham stated that the West Oak Historic District was adjacent to the site and planners were working with the community to develop a neighborhood plan for that area. Developing a neighborhood plan was more difficult to do with the historic district in place. Council Member Engelbrecht asked what would be a vision for the property on a city level with the rest of the single-family lots rather than piece meal development in the area. Cunningham stated that there was a medical facility in the area, a park, and churches and that there was a need to look at the area and create a neighborhood plan to provide for the protection of the single-family homes and allow for infill which would not offend the historical designation in the area. Council Member Watts felt that some of the uses left in the NRMU category seemed inconsistent with medical uses/office uses. He felt that some uses were inconsistent with the intent of the application. The Mayor opened the public hearing The following individuals spoke during the public hearing: Larry Reichhart, representing the applicant - in favor and was in agreement with the removal of the one lot from the application. Mayor Pro Tem Kamp asked about the buffer on the north and west near Houston Place. Reichhart stated that there would be the required 15' buffer plus the 8' fence. Council Member Gregory asked about making the fence a six foot solid masonry rather than a wood fence. Richhart stated that the good side of the wood fence would be towards the neighbors. He did not have any cost figures on a masonry fence and didn't know if it would be a deal killer. Pete Hulstrand, 320 Bonnie Brae, Denton, 76201 - favor Eugene Hargove, 2025 Houston Place, Denton, 76201 - opposed Bob Clifton, 1800 Morse, Denton, 76205 - opposed Alex Payne, 923 Ridgecrest Circle, Denton, 76205 - favor David Kaplan, 308 Marietta, Denton, 76201 - opposed Elise Ridenour, 2044 W. Oak, Denton, 76201 - opposed Council Member Gregory asked Ms. Ridenour what was the West Oak Neighborhood District. What made one property in and what made one property out. Ms. Ridenour stated that the group came together when negative zoning was proposed in the past. Belonging to the group meant joining the group. There were no dues and was voluntary. Council Member Gregory stated that there was a letter submitted from the West Oak group. He questioned how it was known that everyone opposed the project. City of Denton City Council Minutes June 15, 2010 Page 25 Ms. Ridenour stated that there were two neighborhood meetings and those present were unanimously opposed to it. There was a divide in the neighborhood about Bonnie Brae going commercial but not a divide about this proposal. There was no developer for the proposal and no plan for development. Council Member Watts asked if the opposition was for the rezoning without a plan for development. He questioned if there were enough restrictions to limit the development specifically to medical offices and ancillary professional services would that make a difference. Ridenour stated yes and no. If the proposal were specific, it could not be built as the parking lot and buildings would be abutting people's yards. Mayor Burroughs questioned if other uses needed a specific use permit, would that work for the neighborhood. Ridenour stated that she could not speak for neighborhood, but she would prefer some of the other options. It would be best to say this did not work and a small area plan proposal would provide a better vision for Bonnie Brae. Andy Cooper, 2319 Houston Place, Denton, 76201 - opposed Mayor Pro Tem Kamp asked what his main objection to the proposal was. Cooper stated that they were afraid about Houston Place having to going through to Bonnie Brae. Cunningham stated that there was a requirement to punch Houston Place to Bonnie Brae; however, a variance process could be requested to not to push it through. This was a city policy but the applicant could apply for a variance not to push it through. Mayor Pro Tem Kamp asked if that was on the mobility plan. Cunningham stated it was a Denton Development Code requirement. Council Member Gregory asked who would be responsible for the variance to not connect Houston to Bonnie Brae. Cunningham replied it was the applicant. Council Member Watts stated that he did not understand the concept to push Houston Place through to Bonnie Brae. He felt that perhaps the Council could place a restriction on the ordinance to prevent Houston Place to go through to Bonnie Brae. Joann Nunnelly, 2215 Houston, Denton, 76201 - opposed Michelle Lynn, 2120 Houston Place, Denton, 76201 - opposed Comment Cards were received from the following: City of Denton City Council Minutes June 15, 2010 Page 26 Joyce Palmer, 1905 W. Oak, Denton, 76201 - opposed Caroline Polliard, 1800 W. Oak, Denton, 76201 - opposed Ann Jordon, 2224 Alamo Place, Denton, 76201 - opposed Francisca Massardo, 2035 Houston Place, Denton, 76201 - opposed Steve Friedson, 2044 W. Oak, Denton, 76201 - opposed J. W. Gibbons, 2015 Houston Place, Denton, 76201 - opposed Henry Gibbons, 2015 Houston Place, Denton, 76201 - opposed Mrs. Tom Harpool, 2222 Houston Place, Denton, 76201 - opposed Dora Sloan, 2209 Houston Place, Denton, 76201 - opposed Leona Langford, 2219 Houston Place, Denton, 76201 - opposed Susan Pax, 2270 W. Oak, Denton, 76201 - opposed Melody Buys, 314 N. Bonnie Brae, Denton, 76201 - opposed Mike and Linda Nolen, 2280 W. Oak Street, Denton, 76201 - favor The applicant was allowed a five minute rebuttal. Mayor Burroughs asked about the access on the corner lot. Reichhart stated that right now the access would be internal on the development. Council Member King asked about Houston Place. Reichhart stated that they had proposed a restriction in terms of Houston Place with the zoning but the Planning and Zoning Commission would not allow it. City Attorney Burgess stated that the long piece of property next to the historic district would be excluded from consideration of the proposal. It would also not be considered in the overlay and zoning restrictions. Because of the withdrawal of that consideration, the supermajority vote was reshaped and a simple majority vote would now be required instead of a supermaj ority vote. Council Member Heggins asked if the developer had polled doctors about the site. Richhart stated that they had been approached by a number of doctors about the site. Deputy City Attorney Drake stated that the Houston Place issue was a platting question and not a zoning question. There was a variance process that could be pursued to replat to a residential neighborhood and would require a public hearing similar to a zoning case. The site plan could make a condition of zoning and indirectly limit Houston Place. Conditions could also be put on the zoning develop as the campus was not sold lot by lot. Council Member Watts stated whether it was this site plan or another incorporated site, the plans did not show Houston Place going through but if the developer wanted to replat, the site would be modified with public process of a public hearing. He questioned if Council couldn't say with the zoning overlay district that there would not be a city street running through the overlay. Drake replied to not think of it as a zoning issue as it was a platting issue. If Council felt it was important to the integrity of the area rezoning, it could put it in as a condition. City of Denton City Council Minutes June 15, 2010 Page 27 Council Member Gregory asked if the Planning and Zoning Commission was ministerial with some discretionary powers. Drake replied that almost all items going to the Planning and Zoning Commission were ministerial while Council issues were discretionary. Zoning issues were discretionary but also ministerial if the plat met all development standards. Council Member Gregory asked what would be the difference of opinion as to whether a plat conformed or not. Drake replied that was when split votes were done. Reichhart stated that they preferred that there not be any access to Houston Place. There was also the requirement of a minimum 15 foot buffer along the entire eastern side of the property. The Mayor closed the public hearing. Council Member Watts questioned if a restriction could be placed on the zoning to preclude access to Houston Place. Drake replied yes. Mayor Burroughs recognized the need to protect the neighborhood but also recognized that the roadway was in many regards a commercial roadway. How to preserve that while recognizing change was a dynamic of the city. To him it meant transition which provided challenges. The only way he could see looking favorably on the proposal would be to leave out the one parcel and the property needed to be consistent with a transition to the neighborhood as well as recognizing growth. The zoning situation was not at that level of detail. He felt the only way to do that would be to heavily restrict the property for a specific use purpose permit everything except for office use. The corner address was different as it had different zoning. A condition would have to be that Houston Place could not run through to Bonnie Brae. Council Member Engelbrecht agreed that if there were a planned development approach, it would help the situation. There was an opportunity to study the area in advance and he had a sense that the area from Bonnie Brae to Oak was in transition. There was also still the question of Houston Place. At this point he was not in favor and felt that there was a need to study the area more before passing anything Council Member Gregory stated that Lillian Miller was an example of a good transition of zoning on major thoroughfares. He felt such an approach along Bonnie Brae would be the right approach. He did not think this request was the way to get this done as there were still too many unanswered questions. Mayor Pro Tem Kamp stated that she was undecided on this proposal. She felt Council had to be realistic about what was going to happen along Bonnie Brae; however, she was uncomfortable with the proposed configuration and outstanding questions. She questioned making the site plan as a condition for approval and if that would take care of lot of what Council was discussing. City of Denton City Council Minutes June 15, 2010 Page 28 City Attorney Burgess stated that could be a condition if the Council desired. Council Member Watts stated that Bonnie Brae was in transition and the only way he would be in favor was to place conditions on the proposal. Several of those would be no access to Houston Place; uses other than medical/office would require a specific use permit; the buffer on the north side would have to be larger. Another suggestion would be require a specific use permit for the entire area which would require a site plan to ensure a plan was in place. Council Member Watts motioned to approve the ordinance subject to no access to Houston Place; any use other than medical/office would require a specific use permit and the buffer on the eastern boundary would be 30 feet with an eight foot high fence. Mayor Burroughs offered a friendly amendment to include the uses that were eliminated at the Planning and Zoning Commission. Council Member Watts agreed to the friendly amendment. Mayor Pro Tem Kamp offered another friendly amendment to develop the site as a campus and make a site plan a condition. Cunningham stated that the motion should be reworded so that the property would not have access from Houston Place. Drake stated that the requirement of a site plan on top of a specific use permit was redundant and should be removed. He also questioned fire access on the site. Cunningham suggested having the site plan as part of the approval. Fire access from Houston would not be an issue. Drake felt that Council needed to determine if it wanted this site plan or the specific use permit process. If the conditions in the motion were not approved by the applicant, the applicant could protest the rezoning which would require a supermajority vote by Council. He suggested determining if the applicant was in favor of the proposal. Reichhart stated that they would not be in favor of the motion as it now stood. Having to get a specific use permit for every use would be a hardship. If everything was tied to a specific use permit, it would be difficult to deal with architectural standards or layout. The specific use permit could be denied just because someone didn't like it. If the specific use on the site plan could be tied down for medical use that would address buffering and architectural standards and would be different than a specific use permit on everything which would be an unknown. Council Member Watts stated that the presentation stated a medical office park. Unless there was a way to ensure a medical office park use, he was trying to tie down what could be developed. Reichhart suggested an alternate development plan for medical use or offices and all other uses have a specific use permit. Medical, office and ancillary uses would be permitted and all other uses would need a specific use permit. City of Denton City Council Minutes June 15, 2010 Page 29 Mayor Burroughs suggested carving off professional service office use and to table the proposal to the next meeting to develop a concept with the conditions listed in the motion. Fashion a site plan requirement for professional service office use and develop the standards. Council Member Gregory stated that he would like to see the applicant and the neighborhood have more of a chance to work on this. He would also like a statement from the owner of property that would be surrounded by the proposal. Reichhart stated that the property would not remain residential. The owner was looking to sell it commercially. Council Member Watts motioned, Mayor Pro Tem Kamp seconded to continue the proposal based on the Mayor's previous suggestion. Council discussed whether to have the public hearing reopened to allow for public comment at the next meeting when the proposal would be considered. Council Member Watts withdrew his motion to table and Mayor Pro Tem Kamp withdrew her second. Council Member Engelbrecht motioned, Council Member Heggins seconded to reopen the public hearing. On roll call vote, Council Member Watts "aye", Council Member Heggins "aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Pro Tem Kamp "aye", Mayor Burroughs "aye", and Council Member King "aye". Motion carried unanimously. Council Member Engelbrecht motioned, Mayor Pro Tem Kamp seconded to continue the Public Hearing to the July 20th Council meeting. On roll call vote, Council Member Watts "aye", Council Member Heggins "aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Pro Tem Kamp "aye", Mayor Burroughs "aye", and Council Member King "aye". Motion carried unanimously. Council considered Item 4D. D. Hold a public hearing and consider adoption of ordinances of the City of Denton, Texas regarding the following matters, as they relate to the Inspiration (Hunter Ranch) MPC zoning district classification and use designation [MPC07-0001, Inspiration (Hunter Ranch)], generally located on both sides of I-35, between Robson Ranch Road and Vintage Boulevard in the City of Denton, Texas: Ordinance No. 2010-159 1. To rezone approximately 196.5 acres of property owned by the City of Denton for a park, located at the northwest corner of Allred Road and Bonnie Brae Street, from the Inspiration MPC (MPC07-0001) zoning district classification and use designation to a Neighborhood Residential 1 (NR-1) zoning district classification and use designation; and City of Denton City Council Minutes June 15, 2010 Page 30 Ordinance No. 2010-160 2. To amend the 3,331 acre Inspiration Master Planned Community Zoning district classification and use designation [MPC07-0001, Inspiration (Hunter Ranch)], by amending the Zoning Document, Development Plan Map, and Development Standards; and providing for a penalty in the maximum amount of $2,000.00 for violations, thereof, severability and an effective date. (AMPC 10-000 1) The Planning and Zoning Commission recommended approval (7-0). Mark Cunningham, Director of Planning and Development, presented the details of the proposal which consisted of two separate actions. One action was to remove a public park site from the master planned community and rezone the park site from Master Planned Community to Neighborhood Residential 1. The second action was to amend the master planned community zoning district by amending the zoning document development plan map and development standards. On November 4, 2008, Council approved a Master Planned Community zoning document and development which established the Inspiration Master Planned Community. Within the ordinance were zoning and development standards and zoning districts. The purpose of the proposed amendment was (1) reduce the number of pad sites. The 2001 plan for development indicated 50 sites, the 2008 current approved master planned community indicated 21 sites, two of which were existing and nineteen would be new. The 2010 proposed amendment indicate 19 sites. (2) Provide certainty to existing perimeter residents by eliminating Pad Site "D". Existing perimeter sites 7 and 10 and future C & L would have increased wellhead setback to 750' and conditions for noise, air monitoring, access, screening, lighting and flaring at parameter sites. The amendment would also provide for the addition of No-drill zones. (3) Provide certainty for 3300 acre Master Planned Community in terms of surface real-estate and mineral development coordination, flexibility in pad site location subject to Sub 22 Drilling Ordinance and a minimum of 19 pad sites by right including the 5 already drilled on. The summary of the amendments included (1) rezoning of the 196 acre park site, (2) reduction in multi-family units from 3,408 to 3,249 units, (3) reduction in single family units from 11,914 to 11,135 units, (4) elimination of NR-1 (N) gas pad districts and allow for 19 total pad sites, (5) provide conditions to pads located along primary existing residential in terms of 750' wellhead setback, elimination of "D", no drill zones, existing perimeter sites 7 and 10, future perimeter sites C and L, subject to conditions and all other pads subject to Subchapter 22 per time of permit, and (6) no changes to ESA/Open space, water, sewer, drainage, phasing or economic plan. There were several different scenarios for a noise level recommendation. The staff recommendation to the Planning and Zoning Commission for gas pad sites 7, 10, C and L indicated that the noise level for drilling, completion, production, operation and re-work activities would not exceed 79 decibels measured at any point 750' from the gas well site. Commissioner Ryan had suggested the noise level would not exceed 79 decibels measured at any point 500' from the gas well site. The staff recommendation measured at the actual protected use location. Five hundred feet was an arbitrary distance that could require unattractive sound City of Denton City Council Minutes June 15, 2010 Page 31 blanket walls without any benefit to residents. In addition, the operator was required to submit and abide by a noise mitigation plan. Council Member Gregory stated that Exhibit 5 dealt with the proposed gas well parks. He asked how many acres each site had. Cunningham stated that they varied in size. Council Member Gregory asked if there was a restriction on the number of actual wells per site. Cunningham replied there were no restrictions per park site, just a limited number of park sites. On the east side of the power lines there could be no more than four sites. Council Member Gregory asked if the Railroad Commission had limits on the number of wells on a park site. Cunningham stated that the governing issue dealt with environmental issues and not the number of wells on site. Council Member Watts asked that in order to get the gas well permit, did the applicant first have to plat. Cunningham stated that except for Sites C, 7, 10, and L, the applicant would have to plat first then get the drilling permit. Council Member Watts questioned if there was an amendment to the Denton Development Code which version would be used. Cunningham stated that it was possible to have a plat in a zoning district but when coming in for a permit, the separation criteria might have increased. If there were an approved gas well plat but not vested with a permit which had then expired, the new permit would have to be consistent with current standards. If there were an approved plat under the current 500' separation and vested, all would be vested. Mayor Pro Tem Kamp asked about the number of wells to drill with the original plan. Cunningham stated that originally there were 84 wells which were reduced to 19. A trade off was done to eliminate Pad Site D and an additional site. Mayor Pro Tem Kamp asked if the applicant met with the neighbors. Cunningham stated that the neighbors voiced support for the proposal. The major issue was the elimination of Pad Site D. The Mayor opened the public hearings for D 1 and D2. Robert Flozenlogen, Hunter Ranch applicant, stated that they favored the amendments from the original recommendation. The staff recommendation was 79 db, 750 feet from the gas well. He City of Denton City Council Minutes June 15, 2010 Page 32 requested Council use the staff recommendation instead of the amendment from the Planning and Zoning Commission. Council Member Gregory stated that other cities noise levels had less than 79 db at 750 feet with sound walls. Flozenlogen stated that the wall was placed on the pad site. Their recommendation included a noise mitigation plan which was the best solution and on their list of requirements. The original staff recommendation measured at a protected use to monitor the sound level for an objective place for measuring. Council discussed the merits of the level of decibels and number of feet from a protected source. Flozenlogen requested that Council keep to what staff had recommended and what had been vetted with the community. The restriction would only apply to four wells. Council Member Engelbrecht asked about narrowing the number of wells to 19 to match the number of well sites. Flozenlogen stated that the sites ranged from 3-5 acres. The number wells per site would be a factor of economy and gas prices. The following individuals submitted Speaker Cards: Martha Wood, 9305 Perimeter, Denton, 76206 - favor Kathleen Wazny, 9117 Perimeter, Denton, 76207 - favor Council Member Watts asked Ms. Wazny if she was satisfied with the noise restriction levels. Wazny replied that the no drill zone helped with the noise reduction. Elma Walker - favor Flozenlogen was given a five minute rebuttal. Cunningham stated that a noise management plan and associated decibels would be related to the protected stricture. Council Member Engelbrecht stated that just because a protected stricture was not within 750 feet, sound carried greater at night and could still be disturbing. He suggested the distance be set at 500 feet for all wells due to the noise impact and the variable for the conditions for sound travel. The Mayor closed the public hearing. Mayor Burroughs suggested 79 decibels at 500 feet or 70 decibels at 750 feet. City of Denton City Council Minutes June 15, 2010 Page 33 Flozenlogen stated that if the request stood from the community to have the Planning and Zoning Commission recommendation 79 at 500 feet, they would accept that. Council Member King indicated that the walled screening was a factor with the community and he was satisfied with 79 decibels at 750 feet and no screening for those 4 wells. Mayor Pro Tem Kamp motioned, Council Member Heggins seconded to adopt the ordinance for 4.D.1. On roll call vote, Council Member Watts "aye", Council Member Heggins "aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Pro Tem Kamp "aye", Mayor Burroughs "aye", and Council Member King "aye". Motion carried unanimously. Council Member Heggins motioned, Council Member King seconded to adopt the ordinance for 4.13.2 which included the 79 decibels at 750' plus all other conditions recommended by the Planning and Zoning Commission. On roll call vote, Council Member Watts "aye", Council Member Heggins "aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Pro Tem Kamp "aye", Mayor Burroughs "aye", and Council Member King "aye". Motion carried unanimously. Item 4.C. was considered. C. Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas providing for amendments to the Rayzor Ranch Overlay District (RROD) Section 35.7.15 of the Denton Development Code (DDC) on property encompassing approximately 410 acres of land in its entirety and being located generally on both sides of U.S. Highway 380 (West University Drive), between Interstate Highway 35 and Bonnie Brae Street. The Northern Tract of the RROD contains approximately 153 acres north of U.S. Highway 380 and the Southern Tract contains approximately 239.05 acres south of U.S. Highway 380. The proposed amendments are related primarily to the Southern Tract which is located within a Regional Center Commercial Downtown (RCC-D) and a Neighborhood Residential Mixed Use (NRMU) zoning and use district as modified by the Rayzor Ranch Overlay District. Specifically the applicant's proposal includes: 1. Modifying certain previously approved development standards, 2. Proposing an increase to Multi-family density on the Southern Tract, 3. Replacing the previously approved Master Site Plan with a Conceptual/Schematic Plan on the Southern Tract, 4. Amending and adding definitions to land uses on the Southern Tract, 5. Amending and defining landscape guidelines on the Southern Tract, 6. Amending and defining architectural guidelines on the Southern Tract, and City of Denton City Council Minutes June 15, 2010 Page 34 7. Amending and defining signage guidelines on the Southern Tract. Chuck Russell, Planning Supervisor, stated that Allegiance Hillview and RED Development were proposing to amend the Rayzor Ranch Overlay District and provide for design standards related to signage, landscaping and architecture for the Town Center and residential areas within Rayzor Ranch South. The amendments focused on south side of the US 380 site. The applicant's proposal consisted of seven components (1) modifying certain previously approved development standards, (2) increasing multi-family density on the Southern Tract, (3) replacing the previously approved Master Site Plan with a conceptual/schematic plan on the Southern Tract, (4) amending and adding definitions to land uses, (5) amending and defining landscape guidelines, (6) amending and defining architectural guidelines, and (7) amending and defining signage guidelines. The proposal would divide the south campus into three primary areas for land use locations and height. The main subareas consisted of RR-1 which was the Rayzor Ranch Town Center, RR-2 which was the retail area that would surround the Town Center and the South Mixed-Use District which would accommodate nonresidential, single-family and multi-family residential uses. (1) Development Standards - the amendments consisted of a concept/schematic and site plan process and criteria, divided the South Campus into three primary areas, moved land use locations and height restrictions. (2) Increasing the multi-family density on the southern tract - the proposal was to increase the multi-family dwelling units from 750 to 1800 dwelling units with the additional units being located in the multi-family density zone. The other 750 units would be located throughout the zone. Staff reviewed the following items when considering the increase in multi-family density: the concept plan, site plan, TIA/Platting, permit milestone, design standards, other projects, sustainability, and jobs to units. Jobs-housing balance figures were reviewed. (3) Replacing previously approved Master Site Plan with a Concept Plan - the proposed concept plan had the Town Center retail in the RR-1 area, the additional RR-2 retail and all other areas in other categories. The applicant had committed that everything on the south side would go to site plan detail which would go to the Planning and Zoning Commission for approval. The applicant was not proposing the detail in the other categories at this time. (4) Amending and adding definitions to land uses - highlights included definition of a "big house" which consisted of 10 or fewer dwelling units located in a single building which was intended to resemble a single large house. The dwelling units in a big house would count towards the total number of single-family attached dwelling units and not towards the total number of multi-family dwelling units. A new definition for a convention center, garden-style home and townhouse-style home was also provided. Staff had spent a lot of time refining the definition of the townhouse-style home so that it would not be conceived as multi-family. In order to meet that definition, a provision was added that no units would be vertically above or below another use or unit within the stricture. These uses would not count against the figures for the multi-family units. (5) Landscape guidelines - With the north side development, the cap for surface parking would be exceeded by 2000 spaces. To compensate for parking beyond code and surface parking area, City of Denton City Council Minutes June 15, 2010 Page 35 the applicant agreed to landscaping and tree plantings beyond the code requirement. Staff was encouraging the applicant to utilize tree planting and canopy to mitigate for their requested Code variances. Staff would also allow the applicant to use proposed open space and tree canopy within the Southern Tract to help compensate for any shortage of open space and tree canopy proposed within the Northern Tract. Russell reviewed the applicant's proposed tree canopy and open space by percentages. A comparison was shown in terms of the current zoning and the proposed base zoning as it compared to the proposed percentages. (6) Architectural guidelines - the guidelines were different than what was provided for in the northern tract but included a large amount of detail for the RR-1 and RR-2. (7) Signage - the applicant was proposing to expand the special sign district for the RR-1 and RR-2 areas. There would be large signs along the I-35 frontage, directional signage along US 380 and in the interior Town Center, active lighting and signage along the main street. Council Member Gregory noted that his backup contained architectural standards for the RR-1 and RR-2 areas but none for the multi-use area. Russell stated that the only architectural standards outside RR-1 and RR-2 would be behind Exhibit CI and 0 entitled "multi-family architectural guidelines". These were the base code requirements and 0 indicated more restrictions but not on the level for RR-1 and RR-2. Council Member Gregory stated that the residential section of the Legacy development had a variety of styles. Russell stated that those detailed design guidelines would be presented at a future date. They were still going through that process and needed the guidelines before going to the Planning and Zoning Commission and City Council. Mayor Burroughs asked at what stage the applicant must come forward with qualitative architectural standards. Russell indicated that it would be prior to the site plan. Those standards would have to be in place before reviewing the site plan for recommendation for the Planning and Zoning Commission. Staff and the applicant were working through the standards in various areas as they were going through the process. Mayor Burroughs asked if there was a necessity of having to approve a density change separate from the architectural design standards. He would be more comfortable if he could view both at the same time. He questioned if there was a necessity to consider the density change before receiving the detailed architectural designs. Russell stated that it got down to the critical mass of people living as close to retail as possible and trying to provide vitality and shoppers. Mayor Burroughs questioned if the density consideration could be postponed until the architectural standards for the multi-family were received. City of Denton City Council Minutes June 15, 2010 Page 36 Russell indicated that the applicant would be able to explain the critical time frame. Council Member Watts asked what section of the proposal indicated that more processes for the architectural guidelines were to follow. He indicated that he had a concern giving the Planning and Zoning Commission final approval for a site plan. The components of the site plan did not contain any elevations for the architecture. Russell stated staff may want to clean up that language as it was understood to him what the process would be but that didn't mean that it would be understood for someone else. In order for staff to sign off on the architectural compatibility, they needed to see the site plan elevation and landscape design. Additional language could be included that every subarea on the south side and every phase would need a set of guidelines and elevations. Council Member Watts agreed that part of the justification for the increase in density would be the quality of the project. He expressed a concern about the definition of a "big house" containing 10 units and only applying to single-family units. His concern also included the townhome units applying to the single-family numbers. The proposal was for a large increase in multi-family density but townhomes and big houses were going towards single-family numbers. Council Member Gregory questioned some of the permitted uses. In a highly concentrated multi-family and single-family area, drive through facilities and quick vehicle services would be allowed. Russell replied that the intent was that those types of retail uses would be limited to the RR zones but not in the single-family or multi-family zones. Council Member King indicated a concern about the definitions of single-family units and questions about the units with more than three bedrooms. The Mayor opened the public hearing. The following individuals spoke during the public hearing: Charles Hodges, applicant, spoke in favor. He indicated that he had no problem with the submittal of elevations with the site plans and no problem with those assurances and the details. It was a matter of appropriate timing to do so. His goal was to have 5-6 different multi-family projects with different texture and styles. Drive though and quick vehicle services might be allowed along the I35 frontage area. Council Member Gregory asked Mr. Hodges about the "big house" concept and the fact that it sounded like multi-family and why it would count towards single-family units. Hodges stated that the stricture looked like a mansion but consisted of integrated units. They were vertical separated single-family units as opposed to multi-family units. Council Member Gregory questioned if it were possible to fit all the single-family attached, single family detached and high density areas into the high density zone. City of Denton City Council Minutes June 15, 2010 Page 37 Hodges stated that they had done a density test and the figures would work. Council Member Gregory stated that the applicant was asking Council to set aside the currently approved plan and replace it with a concept plan. He questioned by the applicant would imagine that setting aside the entire plan that anything from the other plan automatically be vested in the new plan. Hodges stated that they were enhancing the specificity in the old plan as it could not be built as submitted. They were enhancing and detailing the project over the old plan. Steve Backman, RED Development, spoke in favor. Mayor Burroughs stated that there were already 750 units of multi-family approved. He questioned why approval of the additional units couldn't wait until some architectural quality standards were approved. Backman indicated that on the retail side, there was a concern related to keeping the document together. John Ryan, 2128 Emerson, Denton, 76209 - spoke in opposition. Hatice Salih, 300 Northridge, Denton, 76201 - spoke in opposition Alex Payne, 923 Ridgecrest Circle, Denton, 76205 - spoke in favor Jim Killion, 1903 Mistywood, Denton, 76201 - spoke in opposition Rob Rayner, 1200 Woodrow, Denton, 76205 - spoke in opposition Bob Clifton, 1800 Morse, Denton, 76205 - spoke in opposition Dalton Allen, 111 Lexington, Denton, 76205 - spoke in opposition Comment cards in opposition were submitted by: Eddie Lane, 111 W. McKinney, Denton, 76201 Victoria Hodge, 1833 N. Bell, Denton, 76201 Mrs. Tom Harpool, 2222 Houston Place, Denton, 76201 Michelle Lynn, 2120 Houston Place, Denton, 76201 JoAnn Nunnelly, 2215 Houston Place, Denton, 76201 The applicant was given a five minute rebuttal. Hodges stated that he would agree to count the "big houses" towards the multi-family numbers. In terms of parking, the underlying multi- family zoning would address parking. There would be a detailed site plan that would address parking configuration, parking islands, percentage that would be closed parking and the percentage that would be open. Council Member Engelbrecht understood that the 750 proposed units and the 1050 proposed units were all within the density ring. Hodges replied that the proposed 1050 units would be in the density ring with the 750 units scattered in the South Mixed-Use District. City of Denton City Council Minutes June 15, 2010 Page 38 Council Member Engelbrecht stated the proposal showed every other site had multi-family and questioned why it was needed at the other sites. Hodges replied that it would provide good diversity within the project. Council Member Engelbrecht questioned why the access road had eleven signs proposed. He felt that would almost be too cluttered. Backman stated that the signage added energy to the project. At this time, he didn't know about the exact spacing of the signs which would determine the number that would be placed. Council Member Engelbrecht asked if RED would be willing to work with staff to better define the development. Council Member Watts stated that Hodges had indicated that he would not have a problem adding elevations to the site plan criteria. Watts indicated that he a concern about the Planning and Zoning Commission having final site plan approval and would prefer the Council having final approval of the site plan. Hodges stated that the practicality and reality of that time line was that there might be 15-30 cases with an average time to get through Planning and Zoning Commission and Council of four months. That was a large amount of process time. All of the details were presented so that the Planning and Zoning Commission would know what was needed for approval. Council Member Watts stated that he was still concerned about the justification for the large amount of increased density. He understood about sustainability over the long term but when 750 units could be started with 20,000 feet of form board survey that was not about sustainability. He had a problem with the townhomes and felt that at the very least, a portion should apply to the multi-family number. He questioned if the number of multi-family units had to be approved at this meeting. Hodges replied that it would not make any difference; the analysis would be the same for the number of units needed. Council Member Gregory stated that he understood what Mr. Hodges was saying about all of the site plans coming to Council and the amount of time it would take. He still had a concern that if the ordinance contained more detailed architectural standards similar to the retail, it would be easier for Council to approve the increased multi-family. Hodges suggested having the multi-family site plans come to Council and all the other mixed use site plans go to the Planning and Zoning Commission. Council Member Watts indicated that was what he had in mind. Hodges felt that was one more layer of safety with which Council could look for the quality of the proposals. City of Denton City Council Minutes June 15, 2010 Page 39 Council Member Gregory stated that he had a question regarding architectural standards for retail. Part 5 of Building Design and Materials listed types of materials to be used on all sides of a building visible from the streets or internal customer areas on the site. One of those materials listed was EIFS which he had been told by several builders was not a high quality building material. Backman replied that EIFS was a high quality material and that many of their projects contained EIFS. It was a very common building material and was probably the most used material on their shopping centers. Council Member Gregory stated that he had heard that EIFS had problems with water leakage, mold buildup and birds making holes in it. Backman stated that was not their experience with the material. They used the material in all different types of weather and had not had the problems noted. Council Member Gregory stated that the plan offered showed an increase in the open space, landscape space, canopy and parking from the requirements of the underlying zoning of RCCD. RCCD required one green landscaped island for every 10 parking spaces while the applicant was proposing one green island for every 15 parking spaces. That was an approximate 33% decrease. Backman replied that they had done a lot of study on this issue. Regarding the canopy, they were able to show 20% of landscape in the parking area and 25% on the overall project which was a 5% increase overall. There would be smaller parking fields with different orientations of parking stalls and each one would have buffer areas with canopies that would be wider which would allow them to space them out a little different than Code. The average was one for every 15 parking spaces. A study they had just completed on their latest site plan showed one for less than every 10 parking spaces. Council Member Gregory suggested using those figures. Backman stated that 15 was an average. He indicated that they could go to one for every 12 parking spaces. They would like some a bit larger so would like some up to 10-15 parking spaces. Council Member Gregory stated that he needed assurance that the outer rim would not be shortchanged to make the Main Street area better. He asked if the applicant would be willing to go on average one to every 10 on parking spaces. Backman agreed that they could go to the average of one island to every 10 parking spaces. They would prefer one to every 12 but could live with one to every 10. Council Member Gregory indicated that he could go with one to every 11 parking spaces. Backman agreed. Hodges presented the idea of 25% of the townhomes going towards the multi-family units. City of Denton City Council Minutes June 15, 2010 Page 40 Mayor Burroughs replied that would help. He stated that the price point level of the multi-family units was suppose to be significantly higher than the average unit in the City of Denton. He asked if Hodges had a sense of the price point for the proposed units. Hodges replied that it would be approximately $1.15 to $1.25. Mayor Burroughs asked why the original 750 units were exempted from the prohibition of rental by individual bedrooms. Hodges stated that lot of the transitional and senior housing was done by the single bedroom in multi-bedroom units. Mayor Burroughs stated that the intent then was for the 750 units to be geared towards seniors. Hodges replied that the 750 units could be built all over the South Mixed-Use District and certainly some of those would be geared towards seniors. Mayor Burroughs indicated that rental by the bedroom was a very sensitive position in Denton and asked if it were a vital issue to rent by the bedroom. Hodges stated that they wanted diversity and not preclude anyone. Mayor Burroughs asked if somewhere in site plan it indicated that architectural standards would be there or elevations would be attached. Hodges stated that they had already agreed on elevations. Mayor Burroughs asked if Council could direct staff to place such language in the ordinance as it currently was not included. Russell replied it should be included in the list of items to be included in the ordinance. The intent was known but it would be best to have it included. Mayor Burroughs asked of it would be possible to put in a condition there would be no voluntary application for a tax exemption for commercial tenants. City Manager Campbell indicated that was addressed in the 380 agreement. Council Member King confirmed the big houses would go towards the multi-family numbers and 25% of the townhouse to multi-family but not the limitation of the 750 units limited to three bedrooms. Hodges stated that they had already done that on the 1050 units and could also do that on the 750 units if Council desired. Council Member Gregory stated that he understood that the applicant wanted some flexibility for leasing by the bedroom for a senior facility and that type of facility would be less than three bedrooms. City of Denton City Council Minutes June 15, 2010 Page 41 Council Member Gregory indicated that he really liked the restriction to three bedrooms. Council Member Engelbrecht asked if any of the multi-family units would be four stories or more. Hodges replied that they did not want any three story walk up garden units. Council Member Watts stated the trigger point for the multi-family came out to approximately 333 square feet of retail per unit. The 750 was almost less than half of the 1800 as requested. If the trigger point for the 1050 units was 600,000 square feet of foundation, why not do 100,000 square feet of slab. Hodges stated that they had looked at that and it could be just one anchor store which was an issue. Various definitions were tried with this as the best alternative. Council Member Watts stated that the 20,000 feet of form board survey not restricted to the Town Center was not representative of an equitable number of the 750 units that the applicant wanted to immediately permit. He suggested that a greater number such as 100,000 to 150,000 restricted to the Town Center would get to a more equal percentage of the multi-family requested immediately compared to the ratio of the Town Center which was 600,000 feet. He questioned if it were possible to limit half of the 750 units to not be rented by the bedroom. Hodges felt that restriction would knock out that use. Council Member Watts reviewed the conditions he had noted thus far: (1) all site plans for multi-family uses would go to Council, (2) the site plan criteria would include elevations and architectural standards, (3) modify the section dealing with the expiration of the site plan for multi-family and an extension to be considered by the Council, (4) twenty-five percent of the townhomes would be used for multi-family figures, (5) big houses would be used toward multi- family figures, (6) limitation of three bedrooms on all units, and (7) 100,000 square footage of foundation off the green tagged slabs as the trigger for multi-family. Russell indicated that another would be the average of one green island per every 11 parking spaces. Mayor Burroughs included the architectural standards in the site plans. Russell stated that another was the concept plan. He was not comfortable that the symbols on the concept plan did not relate back to the intended uses. As written, it was not clear what uses were permitted in the various sections of the South Mixed-Use District. Council Member Gregory suggested that items like quick vehicle service or drive through not be automatic permitted uses. Remove several of those uses and come back for permission for those uses; understanding that there might be appropriate places for those uses but not near residential uses. Mayor Burroughs suggested dropping this into "C" for a specific use permit requirement. City of Denton City Council Minutes June 15, 2010 Page 42 Hodges suggested requiring a specific use permit if the use was adjacent to any residential area. Council Member Gregory stated that retail sales and service, drive through facilities, and quick vehicle service uses would be moved to Section C if next to a residential area. Russell stated that the only place commercial land uses would be permitted would be in the RR areas. Council Member Gregory stated that an adjustment needed in the ordinance was page 9 dealing with the definition of "big house". The language dealing with the "big house" counting towards single-family needed to be removed and that it would only count towards multi-family. Council Member Watts clarified that the trigger point would be 100,000 square feet of foundation as inspected and improved in RR-1 Hodges stated that it needed to be in both RR-1 and RR-2. Council Member Gregory noted on Exhibit C 3, Multi-Family Guidelines", if they going to rely on underlying zoning for parking requirements for multi-family, that wording needed to be included. Hodges stated that the concept schematic had that shown on the plan. Council Member Gregory requested that wording be included in Exhibit C. The Mayor closed the public hearing. Council Member Watts motioned, Mayor Pro Tem Kamp seconded to adopt the ordinance with the following additions: (1) all site plans for multi-family uses would go to Council, (2) the site plan criteria would include elevations and architectural standards, (3) big houses would count only towards the total multi-family units, (4) twenty-five percent of the townhomes would apply towards the total multi-family units, (5) 100,000 square feet of slab that had been poured and approved by the city of Denton of which would be poured either in RR-1 or RR-2 needed to occur before the first 750 units of multi-family could be permitted and/or constriction started, (6) limitation of three bedrooms on all multi-family units, (7) canopy coverage would be an average of one per every 11 parking spaces, (8) parking language for multi-family found in the concept plan would be integrated into Exhibit C 3, (9) retail sales and service, drive through facilities, and quick vehicle service uses would be permitted in the South Mixed-Use District only with a specific use permit when abutting residential and (10) City Council would have the authority to extend the expiration date of multi-family site plans. On roll call vote, Council Member Watts "aye", Council Member Heggins "aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Pro Tem Kamp "aye", Mayor Burroughs "aye", and Council Member King "aye". Motion carried unanimously D. Consider appointing a nominating committee to recommend appointees to serve on the Economic Development Partnership Board. City of Denton City Council Minutes June 15, 2010 Page 43 Mayor Pro Tem noted that these would be members of the nominating committee as opposed to nominations to the Board. Council Member Gregory motioned, Council Member Heggins seconded to nominated James King, Pete Kamp and Hank Dickinson to the nominating committee. On roll call vote, Council Member Watts "aye", Council Member Heggins "aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Pro Tem Kamp "aye", Mayor Burroughs "aye", and Council Member King "aye". Motion carried unanimously. E. Consider appointments to Council committees. Mayor Pro Tem Kamp motioned, Council Member King seconded to approve the Council committee appointments as noted in the agenda backup materials. On roll call vote, Council Member Watts "aye", Council Member Heggins "aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Pro Tem Kamp "aye", Mayor Burroughs "aye", and Council Member King "aye". Motion carried unanimously. F. Citizen Reports 1. Review of procedures for addressing the City Council. 2. Receive citizen reports from the following: a. Bob Clifton regarding Fry Street issues, including the initiative petition requiring the establishment of a park. Mr. Clifton presented information on an Open Records Request he had submitted to the Legal Department and the ridiculous charge associated with that request. He also indicated that they were still gathering signatures for the petition for Fry Street. b. Kimberly Reynolds regarding park policies on emergency procedures for children. Ms. Reynolds spoke about emergency procedures for children with allergies and current park procedures. Her child had a severe allergy and needed to have EPI pen available for administration if needed. Current park policy would not allow park personnel to administer the pen. She asked for a change in the policy where staff would be able to administer the EPI pens if needed. G. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information City of Denton City Council Minutes June 15, 2010 Page 44 regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. Council Member Gregory asked for a follow-up report on the information presented by Ms. Reynolds. H. Possible Continuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no continuation of the Closed Meeting. L Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no official action taken on Closed Meeting items. Mayor Burroughs indicated that Council would be returning to the Work Session to continue the gas well amendment discussion and consider the boards and commissions item. 3. Receive a report, hold a discussion, and give staff direction concerning: (1) proposed amendments to Subchapter 23 - Definitions - of the Denton Development Code (DDC); (2) proposed amendments to Subchapter 22 of the Denton Development Code (DDC) regarding gas well drilling and production; (3) proposed amendment to Subchapter 16 of the DDC regarding gas well development platting; (4) proposed amendments to the schedule of fees contained in Ordinance 2005-237 pertaining to gas well drilling and production within the City limits and the Extra-Territorial Jurisdiction; and (5) hold a discussion, and give staff direction concerning the types of analytical testing that has been conducted at other gas well monitoring efforts within the Barnett Shale. (Gas Well Ordinance) Mark Cunningham, Director of Planning and Development, continued with his presentation. He reviewed current and recommended gas well permit requirements. Staff had wanted to reduce the life of the permits from one year to six months but the Texas Local Government Code indicated that the limit on the permits could not be less than two years. However, staff had added language that the permit would expire unless gas well drilling activities had started prior to the expiration date. If gas well drilling activities had started under a valid permit, the permit would have to be renewed annually, subject to all associated fees. Council Member Gregory asked about a short term administrative moratorium on gas well permits similar to what other cities had done. He was suggesting protection until the City's amended ordinance could be passed City of Denton City Council Minutes June 15, 2010 Page 45 Cunningham stated that there were still some concerns to work out on various issues. It had been suggested to send the proposal amendments to outside counsel for review. The amendments were going to the Planning and Zoning Commission on June 23rd for consideration. Mayor Burroughs suggested the possibility of having a council meeting after the next Planning and Zoning Commission meeting to consider the gas well ordinance. Cunningham continued with screening requirements. He indicated that cities had all different kinds of restrictions. Staff was proposing screening requirements if any part of the drilling operation was within 1,000 feet of any protected use or any lot within a previously platted residential subdivision where one or more lots had one or more strictures; or within 500 feet of all other uses or features. The screening would be an 8-foot high opaque decorative masonry fence, if the use, lot or feature pre-existed the commencement of gas well drilling activity. Mayor Burroughs asked if everything on the gas well pad would get a permanent brick box around it. Cunningham stated yes if in the process of drilling; yes if in process of fracking, but some facilities that were minor would look better than a box. He reviewed the noise level summary for the surveyed cities. The lowest permitted level city was Flower Mound with Denton being the highest at 90 decibels. There were many different requirements from the surveyed cities. He reviewed the recommended noise level and requirement for a noise management plan. Mayor Burroughs felt that under certain circumstances there needed to be some type of threshold level. Council Member Gregory suggested adding a location from where the measurement would be made. He questioned the provision that gave the driller 24 hours to abate a noise violation. Cunningham stated that an opportunity had to be given to abate the nuisance. Council Member Gregory requested staff provide a better reason why 24 hours were given to abate the violation. Perhaps a ticket could be given instead of shutting the operation down. Cunningham stated that the assumption was that the drill site was the offender. There would have to be a demonstration of the cause of the noise violation. Council Member Gregory suggested staff do more research on the issue and bring it back for council consideration. Cunningham stated that staff would revisit the existing ordinances. He reviewed the proposed amendments for gas well plats. The proposed amendment was if gas well drilling or production had not commenced, the associated Gas Well Development Plat would expire two years from the date that the Gas Well Development Plat was approved. The Gas Well Development Plat could not be extended. Upon expiration of a Gas Well Development Plat where gas drilling activities had not commenced, the applicant could reapply for a new Gas Well Development Plat, subject to all requirements of the Denton Development Code, as amended. City of Denton City Council Minutes June 15, 2010 Page 46 Council Member Gregory asked about limitations on the height of equipment inside the walls. Cunningham stated that he would look into it for Council. Staff was reviewing gas well testing for air, water and soils. Council Member Gregory felt that there was a need to be able to test ground well water supply near a drilling site. He suggested charging the driller for the report and provide it to the land owner to make sure the water was acceptable. The driller would be bearing the cost as opposed to the homeowner having to do it. He suggested placing that recommendation in Phase II as opposed to Phase I. 5. Receive a report, hold a discussion and give staff direction regarding nominations/appointments to the City's Boards and Commissions. Jennifer Walters, City Secretary, reviewed the Board and Commission notebooks that were going out to Council. The notebooks contained information concerning current members, current member attendance, applications and whether a current member wished to be considered for re- nomination. Council was asked to have nominations to the City Secretary by July 12th for consideration at the July 20th meeting. With no further business, the meeting was adjourned at 4:30 a.m. MARK A. BURROUGHS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS This page left blank intentionally . AGENDA INFORMATION SHEET 41,1111, "NE ge .11T, AGENDA DATE: July 20, 2010 DEPARTMENT: Planning and Development ACM: Fred Greene SUBJECT Z09-0013 (Bonnie Brae Medical Park) Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, providing for a zoning change from a Neighborhood Residential 3 (NR-3) zoning district classification and use designation to a Neighborhood Residential Mixed Use (NRMU) zoning district classification and use designation on tracts 256, 257, 258, 260 and 261 of the E. Puchalski survey, with an overlay district on those same tracts, plus tract 263, containing additional restrictions as noted; the area for the zoning change encompasses approximately 4.678 acres of land located at the northeast corner of North Bonnie Brae Street and West Oak Street, in the City of Denton, Denton County, Texas. The Planning and Zoning Commission recommended approval of the rezoning of six (6) of the seven lots from a Neighborhood Residential 3 (NR-3) zoning district to a Neighborhood Residential Mixed Use (NRMU) zoning district subject to overlay conditions, as provided in Exhibit 8 of the June 15, 2010 staff report (5-1). A SUPERMAJORITY VOTE OF COUNCIL MAY BE REQUIRED FOR APPROVAL, DEPENDING ON THE AREA TO BE ENCOMPASSED IN THE REZONING REQUEST, OR IF THE APPLICANT PROTESTS THE MOTION. BACKGROUND A public hearing for this case was opened on June 15, 2010, and continued until July 20, 2010, in order to allow the applicant to meet with the neighbors and staff to reach some agreements on the restrictions to be placed on the development of the subject property. The applicant has scheduled a meeting with the neighborhood for July 15, 2010, at the North Lakes Recreation Center, and staff will report on that meeting when the public hearing continues. The applicant has provided two proposed plans (Exhibits Al and A2) which will be presented to the neighbors at the July 15, 2010 meeting. Since the public hearing was opened, two additional responses to public notification have been received (Exhibit A3), both in favor of the requested rezoning. One of the properties was previously in opposition, and the update of this response changes the percentage of property in opposition from above 20% to below 20%, no longer necessitating a supermajority vote if the Planning and Zoning Commission recommendation is considered. All other information provided in the staff report provided for the June 15, 2010 public hearing with City Council still applies, and the report is attached to this addendum. OPTIONS 1. Approve as submitted. 2. Approve subject to conditions. 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION The Planning and Zoning Commission recommended approval of the rezoning of six (6) of the seven (7) properties to an NRMU district with a restrictive overlay as outlined in Exhibit 8 of the June 15, report. The Development Review Committee (DRC) recommends denial of the applicant's rezoning request; however, the DRC recommends approval of the rezoning of six (6) of the seven (7) properties with a restrictive overlay as outlined in Exhibit 7 of the June 15 report. The responses to public notification submitted by property owners within 200 feet of the subject property at the time of the opening of the public hearing exceeded 20% in opposition to the rezoning request, and as such, a supermajority was required by City Council in order to approve the rezoning request. During the public hearing, the applicant agreed to withdraw the property at 2286 West Oak from the rezoning request, which then decreased the percentage of opposition below 20%, and the Council was advised that a supermajority would not be required to approve the zoning request as recommended by the Planning and Zoning Commission. Subsequent to the opening of the public hearing, staff has received two additional responses in favor of the request, one from a property that was previously in opposition to the rezoning request. EXHIBITS Al. Site plan submitted by applicant excluding 2286 West Oak A2. Site plan submitted by applicant including 2286 West Oak A3. Responses to Public Notification received since June 15, 2010. Prepared by: T Jane Gurney, AICP Senior Planner Respectfully submitted: for Mark Cunningham, AICP Director, Planning and Development 2 EXHIBIT Al SITE PLAN SUBMITTED BY APPLICANT " 2286 WEST OAK EXHIBIT A2 SITE PLAN SUBMITTED BY APPLICANT 2286 WEST OAK -i f' 1 i I V'JEF'L 1 L'E FLti~~ -0€D13 Spring Er ao I; f TJANDkAMVLIA DEVELOPMENT s Bonnie ame / W. Oak St. 4 EXHIBIT A3 RESPONSES TO PUBLIC NOTIFICATION RECEIVED AFTER JUNE 15, 2010 1VV 1 1.c.C of rk/D"Lp r ICAMLINIL7 Z09-0013 The Planning and Zoning Commission of the City of Menton will hold a public hearing an Wednesday, April 14, 2010, and consider making a recommendation to the City Council regarding the rezoning of approximately 4.678 acres of property from a Neighborhood Residential 3 (NR-3) zoning district, to a Neighborhood Residential Mixed Use (NRMU) zoning district. The property is located at the northeast corner of West Oak Street and North Bonnie Brae Street. The applicant has stated the purpose of this rezoning request is to change the-zoning designation of the property identified in the map on the back of this page to permit medical and commercial uses not permitted under the current zoning. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feet about this request and Invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. In favor of r uest Reasons for Opposition: 1A Signature: City, State Zip: Please circle one: Neutral to request Telephone Number: ~ 'q Physical Address of Property within 200 feet: CITYOFOENTON, TEXAS. CITYPALLWEST DENTON,-TEXAS 76201 94D.349.8541 (F)940.349.7707 200'P8Z Notice 5 Printed Name: Mating Address: 7Z77 NOTICE OF PUBLIC HEARING Z09-0013 The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, April 14, 2010, and consider making a recommendation to the City Council regarding the rezoning of approximately 4.678 acres of property from a Neighborhood Residential 3 (NR-3) zoning district, to a Neighborhood Residential Mixed Use (NRMU) zoning district. The property is located at the northeast corner of West Oak Street and North Bonnie Brae Street. The applicant has stated the purpose of this rezoning request is to change the zoning designation of the property identified in the map on the back of this page to permit medical and commercial uses not permitted under the current zoning. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Half located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feet about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request Opposed to request Reasons for APPA6NJA . T }-iAy E ME~.1 "-F°mE L£C14L (~f=51 b iY' A -r- 232.2. N15uSranl ~114GE FdA nltE~ LAS--T- My Y ,g MLa ~H rEEa (>4s, ~A) H.4s rAr LLLr=D 0411 ;7Ro . e- Sots I~-t' -m An K E AY A. j3tkE 14,45 A- Signature: ~t Printed Name: HA-7- r. l_) fJ ~L1 - i 4-S Mailing Address: 49 0 ® L_Q E!S= 4 - A&AmA 4 VE. City, State Zip: Telephone Number: ~7 -I 1+0112.:51 _CL2_ 10 /+05- Z 9-7-S 16 2 Physical Address of Properly within 200 feet: 2-32 ? HOUSE rQ PLAGE__ CITY OF DENTON, TEXAS CITY HAIL WEST - DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7701 01-02-10 15:20 IN AGENDA INFORMATION SHEET AGENDA DATE: June 15, 2010 DEPARTMENT: Planning and Development ACM: Fred Greene` SUBJECT Z09-0013 (Bonnie Brae Medical Park) Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, providing for a zoning change from a Neighborhood Residential 3 (NR-3) zoning district classification and use designation to a Neighborhood Residential Mixed Use (NRMU) zoning district classification and use designation on tracts 256, 257, 258, 260 and 261 of the E. Puchalski survey, with an overlay district on those same tracts, plus tract 263, containing additional restrictions as noted; the area for the zoning change encompasses approximately 4.678 acres of land located at the northeast corner of North Bonnie Brae Street and West Oak Street, in the City of Denton, Denton County, Texas. The Planning and Zoning Commission recommended approval of the rezoning of six (6) of the seven lots from Neighborhood Residential 3 (NR-4) to Neighborhood Residential Mixed Use (NRMU) subject to overlay conditions, as provided in Exhibit 8 (5-1). A SUPERMAJORTTY VOTE OF COUNCIL IS REQUIRED FOR APPROVAL. BACKGROUND The subject property is comprised of seven (7) separate tracts of land generally located at the northeast corner of North Bonnie Brae Street and West Oak Street; the property surrounds an existing single-family parcel that is not included in this rezoning request. Six (6) of the properties are currently developed with residential uses, and one (1) property (at the corner of Bonnie Brae and West Hickory) operated as a Special Exception retail sales and service, although this stricture is currently unoccupied. The applicant is requesting a zoning change to Neighborhood Residential Mixed Use (NRMU), subject to overlay restrictions. The applicant has stated that the purpose of this rezoning request is to develop the site with medical-related and commercial uses not allowed under the current zoning. The applicant held a neighborhood meeting on July 14, 2009 at North Lakes Recreation Center, which was attended by approximately 17 members of the public, as well as staff and the applicant. The residents voiced many concerns related to the impact of the proposed rezoning on the adjacent neighborhood. The concerns included: (1) proximity to a historical district; (2) increased traffic and the impact on traffic if ingress and egress is allowed from Oak Street; (3) lighting impacts; and (4) regulations for architecture and signs that will be compatible with the adjacent historic district. Representatives of the West Oak Neighborhood have submitted an official list of their concerns and opposition to the requested rezoning (Exhibit 13). Subsequent to the first neighborhood meeting, the applicant has acquired additional property that has been incorporated into this request. The applicant has also met with the West Oak Neighborhood Steering Committee. The Planning Division sent notices of the public hearing (Exhibit 9) to all residents within 500 feet of the subject property; as of this writing, seven (7) responses have been received in opposition of the request, six (6) property owners have submitted responses in favor of the request, and two (2) have been submitted from property owners that are neutral to the request. On April 14, 2010, the Planning and Zoning Commission heard the request, and continued the public hearing to April 28, 2010 to allow the applicant to address concerns voiced at the public hearing. The applicant proposed additional overlay restrictions (Exhibit 6) based on the concerns of the neighbors raised at the public hearing, and submitted in writing. Staff has included a number of the revised restrictions in their recommendation. The Planning and Zoning Commission recommended approval of the rezoning of six (6) of the seven (7) lots from Neighborhood Residential 3 (NR-4) to Neighborhood Residential Mixed Use (NRMU) subject to overlay conditions, as provided in Exhibit 8 (5-1). OPTIONS 1. Approve as submitted. 2. Approve subject to conditions. 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION The Development Review Committee recommends denial of this rezoning request, as proposed by the applicant; however, the Committee recommends approval of the rezoning of six (6) of the properties to NRMU (as depicted in Exhibit 7) with a restrictive overlay to prohibit multi-family uses, veterinarian clinics and bakeries, and to prohibit attached single-family dwellings, dwellings above businesses, hotels, semi-public halls, clubs and lodges, and business and trade schools, to limit building heights to 40 feet, as provided in Exhibit 7. Staff also recommends that the existing NR-3 zoning on the lot directly adjacent to the West Oak Area Historic District be maintained as currently zoned. The Planning and Zoning Commission recommended approval of the rezoning of six (6) of the properties to NRMU (as depicted in Exhibit 8) with a restrictive overlay to prohibit multi-family uses, veterinarian clinics and bakeries, attached single-family dwellings, dwellings above businesses, hotels, semi-public halls, clubs and lodges, and business and trade schools, to limit building heights to 40 feet, as outlined in Exhibit 8. The responses to public notification submitted by property owners within 200 feet of the subject property exceed 20% in opposition to the rezoning request, and as such, a supermajority is required by City Council in order to approve the rezoning request. 2 EXHIBITS 1. Staff Analysis 2. Location Map 3. Aerial Photograph of Site 4. Future Land Use Map 5. Existing Zoning Map 6. Proposed Zoning Map and Overlay Restrictions, as Requested by Applicant 7. Proposed Zoning Map and Overlay Restrictions, as Suggested by Staff 8. Proposed Zoning Map and Overlay Restrictions, as Recommended by the Planning and Zoning Commission 9. Notification Information 10. Zoning Analysis 11. Letter From Applicant 12. Site Photographs 13. Letter from West Oak Neighborhood Representatives 14. Responses to Public Notification 15. Excerpt from the Minutes from the Planning and Zoning Commission Meeting of April 14, 2010 16. Excerpt from the Minutes from the Planning and Zoning Commission Meeting of April 28, 2010 17. Ordinance Prepared by: ~w t Jane Gurney, AICP Senior Planner Respectfully submitted: Mark Cunningham, AICP Director, Planning and Development EXHIBIT 1 PLANNING & DEVELOPMENT STAFFANALYSIS CASE NO.: Z09-0013 DATE TO BE CONSIDERED: June 15, 2010 LOCATION: The subject property is generally located at the northeast corner of North Bonnie Brae Street and West Oak Street. APPLICANT: Spring Brook Planning Group 2405 Mustang Drive Grapevine, TX 76051 OWNER: Berdy Tj andramulia 1900 Sam Bass Denton, TX 76205 REQUEST: Rezone approximately 4.678 acres of land from a Neighborhood Residential 3 (NR-3) zoning district to a Neighborhood Residential Mixed Use (NRMU) zoning district. RECOMMENDATION: The Development Review Committee recommends denial of this rezoning request, as proposed by the applicant; however, the Committee recommends approval of the rezoning of six (6) of the properties to NRMU (as depicted in Exhibit 5) with a restrictive overlay to prohibit multi-family uses, veterinarian clinics and bakeries, as offered by the applicant in Exhibit 10A, and to prohibit attached single-family dwellings, dwellings above businesses, hotels, semi-public halls, clubs and lodges, and business and trade schools, to limit building heights to 40 feet, as proposed by the applicant in Exhibit 10B. Staff also recommends that the existing NR-3 zoning on the lot directly adjacent to the West Oak Area Historic District be maintained as currently zoned. The Planning and Zoning Commission recommended approval of the rezoning of six (6) of the properties to NRMU (as depicted in Exhibit 8) with a restrictive overlay to prohibit multi-family uses, veterinarian clinics and bakeries, attached single-family dwellings, dwellings above businesses, hotels, semi-public halls, clubs and lodges, and business and trade schools, to limit building heights to 40 feet, as outlined in Exhibit 8. COMPREHENSIVE Existing Land Use PLAN DESIGNATION: 4 SITE AND SURROUNDINGS: North: NR-3; Single family residential, church and public park South: DC-G, DR-2; Multi-family and single-family residential, undeveloped property East: NR-3; Multi-family and single-family residential, West Oak Area Historic District West: DC-G; Medical and commercial uses, Denton Municipal Electric Substation BACKGROUND The subject property is currently developed with a 580 square foot INFORMATION: commercial building which was most recently used for retail sales, at the corner of West Oak Street and Bonnie Brae Street (2310 W. Oak Street), one (1) undeveloped lot, and five (5) single family residences. The three (3) properties located on West Oak Street are listed in the Denton Historic Resources Inventory. According to the Inventory, which was prepared in 1995, the properties, which are located at 2286, 2300, and 2310 West Oak Street, were all identified as Low Priority properties. The Inventory identifies two (2) of the strictures located at 2286 West Oak and 2300 West Oak as being constricted as residences in 1930 and 1945, respectively, and the property located at 2310 West Oak as being constricted as a Service Station in 1940. The Denton Historic Resources Inventory was prepared for informational purposes, and no ordinances or regulations are in effect which specifically govern any of the properties listed in the Inventory. The Preservation Priorities assigned in the Historic Resources Inventory were based on the Texas Historical Commission and the National Park Service guidelines. Low Priority ratings are indicative that the resource is a more recent common local building form or architectural style and has no known historical associations, and has been severely altered by remodeling or deterioration. The subject property is directly adjacent to the West Oak Area Historic District, which was officially created by adoption of an ordinance in 2008. The West Oak Area Historic District includes a sub-area of the West Oak Neighborhood. ANALYSIS: Comprehensive Plan The property is located in an area with a Future Land Use designation Analysis: of "Existing Land Use/Infill Compatibility". The intent of this Future Land Use designation is described in the Denton Plan: "Within established residential areas, new development should respond to existing development Nvith compatible land uses, patterns, and design standards. The plan recommends that existing neighborhoods Nvithin the city be vigorously protected and preserved. Housing that is compatible Nvith the existing density, neighborhood service, and commercial land uses is allowed." 5 The proposed zoning district, Neighborhood Residential Mixed Use (NRMU), and the existing zoning district, Neighborhood Residential 3 (NR-3) are both within the family of the Neighborhood Residential Land Use category. The Neighborhood Residential Land Use category was created to preserve and protect existing neighborhoods and to ensure that any new development is comprised of uses that are compatible with existing land use, patterns and design standards to ensure protection of the existing neighborhood, staff is recommending that the property located at 2286 West Oak be maintained under the current NR-3 zoning designation; as doing so will provide a defined area of commercial zoning parallel to Bonnie Brae Street, while protecting the integrity of the existing residential neighborhood to the east and the West Oak Area Historic District by minimizing further encroachment of non-residential zoning districts into the area that does not accommodate or support single-family residential uses. The Denton Plan states a forum should be developed to address neighborhood quality of life issues, and a staff liaison will provide information and support to neighborhood groups. In 2009, the City created the City of Denton Neighborhood Planning Program (CDNPP). The CDNPP purpose is to partner with Denton's residents in order to revitalize and/or preserve area neighborhoods. During the Spring of 2009, the CDNPP attended a walking tour of the West Oak neighborhood. The walking tour revealed a significant historical inventory, a diversity of housing styles as well as types. The tour also revealed a lack of physical improvements such as sidewalks, and a destabilization trend from homeownership to rental. Due to these factors, the West Oak neighborhood was included in the Planning and Development Department's 2009-2011 Strategic Plan for consideration of a Neighborhood Quality of Life Plan. Even though the proposed request meets the intent of the Denton Plan, the continual encroachment of commercial uses into this neighborhood may intensify this destabilization trend. Development The current zoning designation, Neighborhood Residential 3 (NR-3), Code/Zoning Analysis is primarily a single-family residential zoning district. The requested zoning district, Neighborhood Residential Mixed Use (NRMU), is primarily a commercial zoning district which permits commercial uses at a scale intended to serve a neighborhood area. The applicant is proposing a restrictive overlay to exclude multi-family uses, as well as the two Industrial Uses permitted by right in the NRMU zoning district; bakeries and veterinarian clinics. Within a half-mile radius of the subject property, there are two (2) main Future Land Use Categories; Existing Land Use/Infill 6 Compatibility to the north and east of the subject site, and Downtown University Core to the west and south of the subject site. Within the Existing Land Use/Infill Compatibility Future Land Use area, there are approximately 38.834 acres of undeveloped property zoned NRMU (Exhibit 10) within a half-mile radius; however, this property is almost entirely within the Rayzor Ranch Overlay District, which governs the uses and the design guidelines. The property that is currently zoned NRMU that is not within the Rayzor Ranch Overlay District, was rezoned from NR-3 to NRMU in 2009 (Ordinance 2009- 102). Bonnie Brae Street and West Oak Street are both classified as Secondary Major Arterial roadways. The surrounding area along Bonnie Brae is developed with commercial and medical uses, similar to those proposed for the subject site, in addition to single family uses on the east side of Bonnie Brae Street, north of the subject site. To the west of the subject site is a mixture of small-scale medical offices, long term care facility and hospital-related uses. Oak Street is also developed with medical and commercial uses to the west of the subject site, and single-family, multi-family, and institutional uses (University of North Texas campus) to the east of the subject site. Rezoning a portion of the property to NRMU, as proposed by staff, will likely result in development that is compatible with the surrounding uses, while offering a distinct boundary between existing and proposed commercial uses and the existing residential area and the West Oak Area Historic District directly to the east. If the subject property is rezoned and developed with commercial or medical uses, provisions in the Denton Development Code will assist in creating a transition buffer between the existing single-family residential uses and any new commercial development. Within the proposed zoning district, NRMU, a building setback of at least twenty (20) feet is required in yards that abut single-family uses or zoning districts. If a building is taller than twenty (20) feet, an additional one (1) foot of building setback is required for each additional foot of building height. The rezoning boundaries, as proposed by the applicant, are approximately 370 feet at its widest point, as measured in a west-east direction. If the lot at 2286 West Oak is removed from the property configuration (as recommended by staff), the widest point of the property will then be approximately 275 feet, as measured in a west-east direction. Decreasing the size of the property involved in the rezoning will assist in ensuring that any buildings constricted on the site are in a scale compatible with the surrounding residential uses, and will limit the opportunities for vertical constriction. In addition to the increased building setbacks, a Type C buffer will be required to offer a landscape transition between 7 the residential uses and any new commercial uses. A Type C buffer consists of a fifteen (15) foot wide planted strip along the boundary between the two (2) uses, with a combination of plantings to include six (6) evergreen and deciduous trees and twenty-five (25) shrubs for every one hundred (100) linear feet of the buffer area. The property located at 2286 West Oak provides a well-landscaped area that will offer a further transitional buffer area between the area proposed for rezoning and the existing residential neighborhood to the east. The general regulations of the existing zoning district, Neighborhood Residential 3 (NR-3), and the requested zoning district, Neighborhood Residential Mixed Use (NRMU) are presented in Table 1. The differences between the existing zoning district, NR-3, and the requested zoning district, NRMU, are summarized in Table 2. Uses that do not appear in the Table 2 are regulated in the same manner for both zoning districts. Table 1. Comparison of General Regulations of the NR-3 and NRMU zoning districts General Regulations Minimum lot area (square feet) 10,000 2,500 Minimum lot width 60 feet 20 feet Minimum lot depth 80 feet 50 feet Minimum front yard setback 15(f2) t None Minimum side yard 6 feet 6 feet Minimum side yard adjacent to a street 10 feet None Minimum rear yard 10 feet None General Regulations Maximum density, dwelling units per acre 3.5 30 Minimum side yard for non-attached 6 feet 12 feet buildings Maximum lot coverage 50% 80% Minimum landscaped area 55% 20% Maximum building height 40 feet 65 feet 10 feet 20 feet plus 1 foot plus 1 foot for each for each Minimum yard when abutting a single- foot of foot of family use or district building building height height above 20 above 20 feet feet 8 Table 2. Comparison of permitted uses between NR-3 and NRMU Zoning Districts. Residential Single Family Dwellings P N Accessory Dwelling Units SUP N Attached Single Family Dwellings SUP L(40) Dwellings Above Businesses N P Live/Work Units N P Group Homes N SUP Multi-Family Dwellings N S L(4) UP Commercial Land Use Categories NR-3 NRNIU Hotels N P Bed and Breakfast N P Retail Sales and Service N L(17) Restaurant or Private Club N L(11) Drive-through Facility N SUP Professional Services and Offices N L(17) Quick Vehicle Servicing N SUP Laundry Facilities N P Outdoor Recreation P SUP Administrative or Research Facilities N L(14) Broadcasting of Production Studio N L(14) Industrial Land Use Categories Bakeries N L(21) Veterinary Clinics N P Institutional Land Use Categories NR-3 NRNIU Community Service N P Semi-public, Halls, Clubs, and Lodges SUP P Business / Trade School N L(14) Adult or Child Day Care SUP P Kindergarten, Elementary School SUP P Middle School N P High School N SUP Elderly Housing N P Medical Centers N P Table Legend: P - Permitted N - Not permitted SUP - Specific Use Permit L(1) = Accessory dwelling units are permitted, subject to the following additional criteria: 1. The proposal must conform with the overall maximum lot coverage and setback requirements of the underlying zone. 2. The maximum number of accessory dwelling units shall not exceed 1 per lot. 3. The maximum gross habitable floor area (GHFA) of the accessory residential structure shall not exceed 50% of the GHFA of the primary residence on the lot, and shall not exceed 1000 sq. ft. GHFA unless the lot meets the requirements of L(1).5. 4. One additional parking space shall be provided that conforms to the off street parking provisions of this Chapter. 5. The maximum gross habitable floor area (GHFA) of the accessory residential structure shall not exceed 50% of the GHFA of the primary residence on the lot, where the lot size is equal to or greater than ten acres in size. An SUP is not required for such an accessory residential structure where the lot size is equal to or greater than ten acres. L(4) = Multi-family is permitted only: 1. With a Specific Use Permit: or 2. As part of a Mixed-Use Development or 3. As part of a Master Plan Development Existing; or 4. If the development received zoning approval allowing multi-family use within one year prior to the effective date of Ordinance No. _2005-224: or 5. If allowed by a City Council approved neighborhood (small area) plan. L(11) = Limited to sit down only, and no drive up seivice permitted. Limited to no more than 100 seats and no more than 4,000 square feet of restaurant area. L(14) = Uses are limited to no more than 10,000 square feet of gross floor area. L(17) = Uses are limited to no more than 25,000 square feet of gross floor area per use, except grocery stores may be larger with approval of an SUP. L(21) = Bakery and bottling areas not to exceed 2,500 square feet. Sales on premises of products produced required in this zone. L (40) =Limited to a maximum 12 units per acre. 10 DEPARTMENT AND The Development Review Committee (DRC) has reviewed this AGENCY REVIEW: application, and the applicant has supplied all requested information related to the rezoning request. The DRC Engineering Department has provided the applicant with comments related to site design standards and criteria that must be addressed at the time of platting. FINDINGS: Section 353.4.B of the DDC establishes the general criteria for zoning amendment approval. The criteria are as follow: The proposed rezoning conforms to the Future Land Use element of the Denton Plan. It is staff's determination that the proposed Neighborhood Residential Mixed Use (NRMU) zoning district is consistent with the Future Land Use designation of Existing Land Use as defined in the Denton Plan. Given the surrounding uses and the location of the site at the corner of two (2) Secondary Major Arterial roadways, the proposed rezoning to NRMU would be appropriate for the majority of this site, with the exception of the property located at 2286 West Oak Street. The property located at 2286 West Oak Street is distinctly a significant part of the West Oak residential neighborhood, and it is staffs opinion that including this lot in the rezoning would result in encroachment into an existing, cohesive residential neighborhood. The proposed rezoning facilitates the adequate provision of transportation, water, sewer, schools, parks and other public requirements and public convenience. The provision of adequate public facilities for this proposal was reviewed by the Development Review Committee (DRC) during the review period. DRC Engineering has determined that adequate public facilities exist to serve this development, and has provided the applicant with requirements that must be met at the time of platting of the property. Public improvements that will be required include perimeter street improvements, including the extension of Houston Street to Bonnie Brae Street or the granting of a variance to allow Houston Street to end in a cul-de-sac, as well as drainage improvements, possibly including a detention facility. 11 EXHIBIT 2 LOCATION MAP SCRIPTURE OAK OAK W 1 E s 12 EXHIBIT 3 AERIAL PHOTOGRAPH OF SITE 4~ Amass- I'd ,$i• ° +3,13 n tm I , * o to , Rt ~ % A, HOUSTON MON i a Mr ~M Aft l a , • L l , 13 EXHIBIT 4 FUTURE LAND USE MAP I NEIGHBORHOOD CENTER SCRIPTURE EXISTING LAND USE/ DOWNTOWN UNIVERSITY CORE 0 INFILL COMPATIBILITY z m HOUSTON Q x SUBJECT PROPERTY OAK OAK HICKORY n w 14 EXHIBIT 5 EXISTING ZONING MAP RCC-D NR-3 RCC-D SCRIPTURE 03 O Z Z n c DC-G DR-2 OAK DC-G DC-G J R-3 DR-2 HICKORY U) HOUSTON O v DC-G w a 15 EXHIBIT 6 PROPOSED ZONING MAP AND OVERLAY RESTRICTIONS, AS REQUESTED BY APPLICANT RCC-D NR-3 RCC-D SCRIPTURE 53 O Z NR-3 Q DC-G A m HOUSTON p NRIVILI x SUBJECT PROPERTY OAK DR-2 DC-G OAK DC-G DR-2 HICKORY V DC-G Lu Q 16 Z09-0013 Proposed Overlay Restrictions: 1. The following Uses shall be prohibited: a. Agricultural b. Livestock c. Attached SF (townhomes) d. Dwellings above Business e. Multi-Family f. Hotels g. Semi Public Halls, Clubs & Lodges h. Business and Trade Schools i. Bakeries j. Veterinary Clinics 2. Building height shall be limited to 40', a typical commercial building of two stories or less. 3. No new structures shall be constructed on 2286 West Oak. Existing structures, like the swimming pool, gazebo and guest house can be removed, repaired or replaced to serve the same function. 4. Commercial and retail structures (not including professional service and office buildings) shall be limited to 7,500 square feet. An SUP is required for additional square footage. 5. An 8' foot high solid screen fence (good side out) constructed with steel post and a decorative cap shall be constructed in the required buffer yard in lieu of the required buffer shrubs. All required buffer trees shall be planted in accordance with the requirements of the Denton Development Code. Within the overall development internal buffering between uses shall not be required. 6. Non-single family access shall be from Bonnie Brae and/or Oak Street. No non- single family access shall be from Houston Street. Houston Place will not be a thru street to Bonnie Brae. 7. The following architectural standards shall be incorporated into any new building: a. Architectural elements such as awnings, extended overhangs, columns or shutters shall be incorporated into the design of buildings. b. All windows shall be double insulated windows with thermal break and no mirrored glass. c. Flat roofs shall not be permitted. The minimum roof pitch shall be 4:12 and the maximum roof pitch shall be 10:12. d. New buildings shall incorporate alternating roof plate heights. e. Shingles (if used) shall be a minimum 30 year architectural style composition shingle. Z09-0013 Overlay Restrictions April 27, 2010 17 EXHIBIT 7 PROPOSED ZONING MAP AND OVERLAY RESTRICTIONS, AS SUGGESTED BY STAFF RCC-D NR-3 RCC-D SCRIPTURE O Z m NR-3 DC-G m HOUSTON p NR10L1 z r sU6J ,T PROPERTY OAK DR-2 DC-G DR-2 OAK DC-G DC-G DR-2 HICKORY DR-2 N DC-G w a 18 Overlay Restrictions Recommended by Staff: The following Uses shall be prohibited: b. c. Attached SF (townhomes) d. Dwellings above Business e. Multi-Family f. Hotels g. Semi Public Halls, Clubs & Lodges h. Business and Trade Schools Bakeries Veterinary Clinics 19 EXHIBIT 8 PROPOSED ZONING MAP AND OVERLAY RESTRICTIONS, AS RECOMMENDED BY THE PLANNING AND ZONING COMMISSION RCC-D NR-3 RC,C-D SCRIPTURE O Z NR-3 a DC-G fi HOUSTON p NRNAU ~ SUBJECT PROPERTY OAK DR-2 DC-G DR-2 OAK DC-G DC-G DR-2 HICKORY DR-2 v DC-G ui 20 Overlay Restrictions Recommended by Planning and Zoning Commission: 1. The following Uses shall be prohibited: a. Agricultural b. Livestock c. Attached SF (townhomes) d. Dwellings above Business e. Multi-Family f. Hotels g. Semi Public Halls, Clubs & Lodges h. Business and Trade Schools i. Bakeries j. Veterinary Clinics k. Live/Work Units 2. Building height shall be limited to 40', a typical commercial building of two stories or less. 4. Commercial and retail structures (not including professional service and office buildings) shall be limited to 7,500 square feet. An SUP is required for additional square footage. 5. An 8' foot high solid screen fence (good side out) constructed with steel post and a decorative cap shall be constructed in the required buffer yard in lieu of the required buffer shrubs. All required buffer trees shall be planted in accordance with the requirements of the Denton Development Code. Within the overall development internal buffering between uses shall not be required. thr, aa* te Pa ~ nnma Q 7. The following architectural standards shall be incorporated into any new building: a. Architectural elements such as awnings, extended overhangs, columns or shutters shall be incorporated into the design of buildings. b. All windows shall be double insulated windows with thermal break and no mirrored glass. c. Flat roofs shall not be permitted. The minimum roof pitch shall be 4:12 and the maximum roof pitch shall be 10:12. d. New buildings shall incorporate alternating roof plate heights. e. Shingles (if used) shall be a minimum 30 year architectural style composition shingle. 21 EXHIBIT 9 NOTIFICATION INFORMATION 200 Ft. Notification Boundary Legend ® SITE Neutral Favor Z09-0013 Opposed Streets 200 100 0 200 Feet ,.r ~DN~ Public Notification Date: April 4, 2010 200' Legal Notices* sent via Certified Mail: 29 Number of responses to 200' Legal Notice: ■ In Opposition: 7 ■ In Favor: 6 ■ Neutral: 2 * - A copy of the notification list is available at City Hall West, 221 N. Elm Street, Denton, TX 22 EXHIBIT 10 ZONING ANALYSIS Legend Q SITE _ Parcels Quarter Mile Streets Half Mile Z09-0013 800 400 0 ¢N, v 800 Feet W V '"i S I)l-'NTC)N 23 EXHIBIT II LETTER FROM APPLICANT S- i, December 4, 2009 Mr. Mark Cunningham, AICP Director of Planning and Development City of Denton 221 N Elm Denton, TX 76201 Re: Rezoning application for 4.678 acres generally located at the northeast corner of Bonnie Brae and W. Oak, commonly referred to as 206, 218, 300 & 310 Bonnie Brae and 2286, 2300 & 2310 W Oak. Dear Mr. Cunningham, Mr. Berdy Tjandramulia is proposing to redevelop the majority of the properties (Exhibit 1 - Maps) for medical offices and the hard corner as commercial. The properties are currently zoned Neighborhood Residential 3 (NR-3) and we would be seeking a rezoning to Neighborhood Residential Mixed Use (NRMU) to allow the office use and to accommodate the anticipated lot coverage (Exhibit 2 - Concept Plan). The properties are not platted. The corner lot contains a vacant commercial building and the other lots are currently residential. PROJECT NARRITIVE: The subject property is currently zoned NR-3 and we are seeking NRMU zoning to accommodate the intended use (medical office and commercial). The current NR-3 zoning does allow office or commercial uses. Exhibit 2 is a land use comparison between the existing and proposed zoning districts. Site History: The properties are not platted. Surrounding land uses and zoning: North: Single-family (NR-3) & Historic Overlay District South: Single-family (DR-2), undeveloped (DC-G) & Multi-family (DR-2) East: Hospital, Assisted Living Facility & Convenient Store (DC-G) West: Single-family (NR-3) Existing Site Conditions: • Single-family & commercial structures • Water service is available via an existing 12" line along Oak and an existing 6" line along Houston St. • Sanitary sewer service is available via an existing 8" line along Oak. • The property is relatively flat with some scattered trees (Pecans) • Access to the properties is currently from Oak & Bonnie Brae (both Secondary Major Arterials) • Six residential structures and one commercial structure currently exist on the property. 2405 Mustang Drive / Grapevine, Texas 76051 1469-955-8580 1817-329-4453 (Fax) 24 Proposed Site Conditions: • No major topography alterations are proposed. • Primary access will be from Oak & Bonnie Brae • Medical offices are proposed on the majority of the site with one commercial structure located on the "hard" corner (with associated site improvements). • The residential structures will continue to be rented until development on those properties is proposed. • No Overlay Restrictions are proposed, HOWEVER, to be consistent with Z09-0008 we would be amenable to the following restrictions: o No Industrial Uses ■ Eliminates Bakeries, Veterinary Clinics and Gas Wells Any residential use would require approval of an SUP ■ Includes Attached Single Family Dwellings, Dwellings Above Businesses, Live Work Units, Group Homes and Multi-family Dwellings. Multi-family Density would be limited to 12 units per acre. ■ NRMU allows up to 30 units per acre, the proposed 12 units per acre is consistent with NRMU-12 • Denton Development Code Analysis: o It is anticipated that the proposed development will meet or exceed the requirements of the DDC. • Denton Plan Analysis: o This development meets or exceeds many of the stated goals and policies found in the Denton Plan including: Growth Management Policies (Page 21): Zoning should be used as originally intended, to address extreme incompatibilities between land uses. Zoning should be used to identify performance standards that allow land uses in defined districts based on their ability to mitigate potential negative impacts on neighboring properties. A reexamination of the use of zoning as a planning tool should be conducted to reflect community values successfully. Page 23: Based upon the additional residential development and the existing land use mix, the city will need to accommodate approximately 3,000 acres of industrial development, 3200 acres of commercial development, and 2,700 acres of institutional development. The plan encourages infill development, restoration and redevelopment within the existing center city and surrounding the universities. Page 37: Existing Residential / Infill Compatibility Within established residential areas, new development should respond to existing development with compatible land uses, patterns, and design standards. The plan recommends that existing neighborhoods within the city be vigorously protected and preserved. Housing that is compatible with the existing density, neighborhood service, and commercial land uses is allowed. Page 2 of 4 25 Page 41: The role of commercial activity in the city is to provide convenient and available retail, service, and office opportunities to residents of the Denton market area. Commercial activity provides return on investment for business and property owners, employment opportunities for local residents, and an economic base for local taxing entities. Commercial activity generally supports community residential activity, but certain aspects of the retail, service, and office uses such as big-box retail, and service and office headquarters may be more regionally oriented and act as basic elements of the economy. Page 42: Primary Commercial Land-Use Principles: Maintaining Balance It is the desire of the residents of Denton to maintain and enhance the balance between residential and commercial land uses and assessed values in Denton. The redevelopment of this property will increase the assessed value Limiting Strip Development One of the overall goals of the land use plan is to limit the amount of strip commercial development along Denton's arterial streets, collectors, and highways. The expansion and redevelopment of Presbyterian Hospital along with the redevelopment of the medical offices along Oak, the rezoning and future development of the south east corner of Oak and Bonnie Brae (Z09-0008) and the rezoning and future redevelopment of this property will create a medical node /activity center. Demanding Quality The quality of development, particularly commercial development along the city's corridors, is a significant factor in the quality of neighborhoods, the urban environment, and the sustainability of structures. Adequate public facilities shall be a criterion by which zoning is granted Although the DDC ensures a minimum level of quality, this development will be competing against new medical offices that have recently been constructed along Oak and Scripture and thus will in all likelihood exceed the standards within the DDC and enhance the image of the area. We believe that medical office use is compatible with the adjacent land uses and appropriate based on the close proximity of the site with Presbyterian Hospital and adjacency to two Secondary Major Arterials. General Criteria for approval 035.3.4.6 DDC) analysis: 1. A complete application and fee shall be submitted. Response: A complete application & fee was submitted. 2. Applications may be approved when the following standards are met: a. The proposed rezoning conforms to the Future Land Use element of The Denton Plan. Response: The proposed NRMU zoning is consistent with the existing land use designation (Existing Neighborhoods 1 Infill Compatibility). Page 3 of 4 26 b. TIiI FIQIi,I-Ir Hu ;Irk `I° Use Permit meets the criteria r; T'-1I-:II Ilu -iiiii I1i,tr' [I and conforr'-13 t ti I- i_ uI E 113se and intent of The Denton Plan. Response: NfA forzoning amendment. c. T'Ir' t li-itJii Ni-I Ir `Viii; II ;IHI- tll I -rr FHII[IIt dtr' tl'- aijt'g I ~JIi1 U` tI~Il III ft~ rl, i1rl r i I II II ['-A 1111i<` i~ 11il,Ll T'i~} ri fir It ~II;J i,JL ILw: cri r Ill:rti r Response: Adequate provisions for public utilities and conveniences exist (see analysis above and PA009-M1 engineering coniments). T erewill be a benefit to the local school district (payment of school tax's but no students to educate) and no impact on parks because this in not a residential development. See Exhibit 3 for l al Description of the property See Exhibit 4 '1 1 il' i I zatian In con, II 11! i"II i Iiat the liInI 1 1 r,iI :i I Iiii I meets thx' 1 ill e "Iton Plan mill is % CC'[ l i„I illy 11 till' WI ii III v J imiillrlljl Nr Ald111!:lill ~i',r' I fi ill IIV :jll.: ittl`_.i J;r_ ti 1 >i ICI, i. i.i'[jI it 1111, D1:11 Itlr' n li',r'. 11 1[ 1] will. Fri' t!t r" rl Hii I t-il lrll_', D rill I,,[, rig I11[ I I Clr_ Its-rl a _1 m'lil al Ir i - . - 71, 11 -iii tilI 1r I 111 11;,1 itllin 1 1 tha II I lily, rind It you have any questions please do not lim if _it r tea LIB It . I;Il®. q' I I, I_I-11'', pru--i E r1, F1I_tlrlnlf a 1'roup cc: e r- t,, TI,-_.- I iral i1li ,~,tt_lrilrtr~ rlt- ~~libt E> li It's IIF' Ji IIF-11,"J Zurl -iir, CIrrrip_nson F Il , t J ~rilie~tr Eprl-n itil-rl C -I1Lit4: L'- tt-I- if ,''utllr1i-trtil_n ",i -1 4 of 4 27 EXHIBIT II SITE PHOTOGRAPHS I'll Exi ng t ommei olii immkiin_ it the corner or bonnie mae mreet N est v,ii,. ,meet i L v 1 F ~(y W ~ 4 4 N 2r! T 1p t SbL f ~~Yl l~f I , K 1 Fj~ Z, Existing residential stricture located at 2300 West Oak Street 28 Exi is resiaenuai siriciure iocaiea lit , ~N est var. Existing residential strictures located on Bonnie Brae Street (including property not included in this rezoning request). 29 The V ~ntageAsmvtcd I innz hnCihow the "cqt of the whlca qtc (on Ivivo c Iwic street i ,y - . a i { . „ l r an f~ J J~ ~ ~ y 1, -d t ~ Gas station/Retail store and Denton Muncipal Electric Substation on the southwest corner of the intersection of Bonnie Brae Street and West Oak Street. 30 'not G:M~u. rnys7 Ytil ,tiJ?yr ~ S,. Multifamily development and undeveloped property to the south of the subject site; the undeveloped property was recently rezoned to Downtown Commercial General (DC-G). 31 EXHIBIT 12 Letter from West Oak Neighborhood Representatives West Oak Area Neighborhood and Historic District www.westoakarea.org The West Oak Area Neighborhood and Historic District opposes the proposed zoning change from NR-3 to NRMU for properties located in our neighborhood. NRMU zoning would not serve the neighborhood's consistent long-term goal of maintaining and increasing single-family residential viability. This proposed zoning change involves three properties on West Oak Street. All three of them are listed in the 1995 Denton Historic Inventory: two of them are residential homes, and one of these homes abuts the West Oak Area Historic District overlay within the neighborhood. The proposed zoning change, if granted, would also effect the residential properties on Houston Place that are in our neighborhood, making residential property lines tangent with commercially zoned property. We are an old and established small residential neighborhood whose location makes us significantly vulnerable to zoning and development incursions, particularly on our southern (close to UNT) and western (close to medical facilities) edges. During the citywide rezoning in 2002 the Denton City Council agreed that our neighborhood should be actively preserved and that uniform zoning would be one way to help protect the residential quality of the neighborhood. Instead of zoning West Oak Street between Bonnie Brae and Jagoe on the north side and between Bonnie Brae and Ave G on the south side Downtown University Core, as the Planning Department advised, Denton City Council, after lengthy discussions with the West Oak Area Neighborhood Association, mandated that this area be uniformly zoned NR-3. Mr. Tjandramulia's zoning proposal is an example of the type of "zoning creep" that is the demise of centrally located residential neighborhoods. He has no site plan and is not a developer with a specific plan for the property. If allowed it would be the only property in the entire neighborhood zoned anything other than NR-3 and would be an invitation to the next real estate property packager to purchase several residential homes, apply for a zoning change using the last change as an argument and support for the current proposal, and "flip" the property. Rezoning properties lot by lot, or groups of lots does not serve the goal of maintaining or preserving a neighborhood; rather it serves the interests of real estate speculators often to the detriment of neighborhoods, particularly when the neighborhood is in an already physically vulnerable area. The West Oak Area Neighborhood Association has had an active neighborhood organization since at least the 1970's and has worked diligently to maintain the boundaries that were defined during the citywide re-zoning in 2002. In 2009 a good portion of the neighborhood had an additional historic district overlay, the West Oak Area Historic District and we are currently working with Denton's Planning Department to create a second overlay, a Small Area Plan, that 32 will include all properties in the neighborhood. The goal of these overlay districts is to provide as much structural support as possible to protect our residential neighborhood from non- residential incursions. We respectfully request that the City of Denton support the residential viability of the West Oak Area Neighborhood and vote to maintain NR-3 zoning. 33 EXHIBIT 13 RESPONSES TO PUBLIC NOTIFICATION NOTICE OF PUBLIC HEARING Z09-0013 The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, April 14, 2010, and consider making a recommendation to the City Council regarding the rezoning of approximately 4.678 acres of property from a Neighborhood Residential 3 (NR-3) zoning district, to a Neighborhood Residential Mixed Use (NRMU) zoning district. The property is located at the northeast corner of West Oak Street and North Bonnie Brae Street. The applicant has stated the purpose of this rezoning request is to change the zoning designation of the property identified in the map on the back of this page to permit medical and commercial uses not permitted under the current zoning. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: _ _ In favor of request Neutral to request Opposed to request Reasons for Opposition: 1• Alb /48-/!`/617/00 u/Ti`- + 46111,419 CDAl ffaC!/FL 01,-1 l~lG( m.U'(© ~~,C j,9({/AQ/J 7J rH~S _ _ 3 /U!J A,10 C'DU 9 °t` C~dP~O Al~ C2e~ssU~ /k, ov5;2N S _ v B SKcY u_U~Sfv 725 ovNe9L Signatur Printed Name: ~'r""4,PP Mailing Address: / AA_1,e,~LA4- City, State Zip: y8o~ C 765 Telephone Number: ~~fC9 SW(r rg3- Physical Address of Property within 200 feet: 4/// ,9N,45 6%- CITY OF DENTON, TEXAS CITY HALL WEST - DENTON, TEXAS 76201 • 940.349.8541 (F) 940.349.7707 200'P& 2 Notice 04-14-10 11:50 IN W, 34 jj NOTICE OF PUBLIC HEARING Z09-0013 V The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, April 14, 2010, and consider making a recommendation to the City Council regarding the rezoning of approximately 4.678 acres of property from a Neighborhood Residential 3 (NR-3) zoning district, to a Neighborhood Residential Mixed Use (NRMU) zoning district. The property is located at the northeast corner of West Oak Street and North Bonnie Brae Street. The applicant has stated the purpose of this rezoning request is to change the zoning designation of the property identified in the map on the back of this page to permit medical and commercial uses not permitted under the current zoning. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request -Opposed to request Reasons for Opposition: Yy"' Signature: Printed Name: ~r C o~ Mailing Address: City, State Zip: 0_ u ' Telephone Number: 1) 5-5 f~t~ ~S Physical Address of Property within 200 feet: CITY OF DENTON, TEXAS CITY HALL WEST DENTON, TEXAS 0 4 -9Pr31I • Its) 940.349.7707 260'P8Z Notice 04-14-10 10:06 IN 35 NOTICE OF PUBLIC HEARING Z09-0013 The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, April 14, 2010, and consider making a recommendation to the City Council regarding the rezoning of approximately 4.678 acres of property from a Neighborhood Residential 3 (NR-3) zoning district, to a Neighborhood Residential Mixed Use (NRMU) zoning district. The property is located at the northeast corner of West Oak Street and North Bonnie Brae Street. The applicant has stated the purpose of this rezoning request is to change the zoning designation of the property identified in the map on the back of this page to permit medical and commercial uses not permitted under the current zoning. The public hearing will start at 6:34 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it-off- in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request (-~O~ppsed to request Reasons for Opposition: e ~ LA J, Signature: Printed Name: C-V Mailing Address: °7 to 4aV~ F City, State Zip: L r~ l }C / ! Telephone Number:' Physical Address of Property within 200 feet: V\ CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 940.349.8541 (F) 940.349.7707 200' P&Z Notice 61 3C NOTICE OF PUBLIC HEARING Z09-0013 The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, April 14, 2010, and consider making a recommendation to the City Council regarding the rezoning of approximately 4.678 acres of property from a Neighborhood Residential 3 (NR-3) zoning district, to a Neighborhood Residential Mixed Use (NRMU) zoning district. The property is located at the northeast corner of West Oak Street and North Bonnie Brae Street. The applicant has stated the purpose of this rezoning request is to change the zoning designation of the property identified in the map on the back of this page to permit medical and commercial uses not permitted under the current zoning. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would tike to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one:° In favor of request Neutral to request Opposed to request Reasons for Opposition: 1"rrrS Signature: 117 Printed Name: Mailing Address: 0' A° City, State Zip: c d -a Telephone Number: j j Physical Address of Property within 200 feet: CITY OF DENTON, TEXAS CITY HALL WEST DENTON, TEXAS 76201 • 940.349.8541 (F) 940.349.7707 200' P&Z Notice 37 FROM :KRIKE SAX NO. :2143413222 Apr( +2 2010 08:25AM P1 NoTiCE OF PUBLIC Pt ARING Z09-0013 The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, April 14. 2010, and consider making a recommendation to the City Council regarding the rezoning of " approximately 4.678 acres of property from a Neighborhood Residential 3 (NR-3) zoning district, to a Neighborhood Residential Mixed Use (NRMU) zoning district. The property is located at the northeast comer of West Oak Street and North Bonnie Bree Street. The applicant has stated the purpose of this rezoning request is to change the zoning designation of the property identified in the map on the back of this page to permit medical and commercial uses not permitted under the current zoning. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fpx it -to the number, located at the bottom or mail it to the address below or drop it off in-person: - Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose•the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request pposed tore ues Reasons for Opposition: .r0` ~ .ems Sig Printed Name CITYOF DENTON, TEXAS CITY HAIL WEST • DENTON, TEXAS 76201 • 94D.348.8541 • (F)940.338.7707 POD' PV Notice 38 NOTICE OF PUBLIC HEARIN& Z09-0013 The Planning and Zoning Commission of the City of Denton will hold a public heregardin on Wednesday, April 14, 2010, and consider making a recommendation t o the Cit) 131(NR 3) og ng d stnctn ooa approximately 4.678 acres of property from a Nei9 heast loca Neighborhood Residential Mixed Use (NRMU) zoning district. Thep operty i stated the purpose~of th is corner of West Oak Street and North Bonnie Brae Street. The appl' ant has hange of the under thefcudrrenthzo In ng on the back the zoning iden rezoning request i tomed cal and commec all uses not permittedroperty of this page to per 15 The public et, Denlton Texas. Bep.m. in the cause you City Council own property with'nstwo h~undrel d locate (200)dfeet2of the McKinney Street, subject property, the Planning and Zoning Commission would like to hear how you feet about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into hea account, return this form with your comments prior to the dateof the.) pYou mayring. This in way it to the number prohibits you from attending and participating in the public located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request Opposed to reques , Mailing Address: 0 City, State Zip: 67 7 Telephone Number: 3 4 ~f Physical Address of Property within 200 feet: CITY OF DENTON, TEXAS CITY HALL WEST DENTON, TEXAS 76201 940.349.8541 (F) 940.349.7707 200' P&Z Notice 39 Reasons fox Opposition: te r4 Ulu J" L~ 1 r4.,Gt~ NA2-26-2007 10:33P FROM: 70:3497707 P.1111 INNOTICE OF PUBLIC HEARING Z09-0013 The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday. April 14, 2010, and consider making a recommendation to the City Council regarding the rezoning of approximately 4.670 acres of property from a Neighborhood Residential 3 (NR-3) zoning district, to a Neighborhood Residential Mixed Use (NRMU) zoning district. The property is located at the northeast corner of West Oak Street and North Bonnie Brae Street. The applicant has stated the purpose of this rezoning request to to change the zoning designation of the property identified in the map on the back of this page to permit medical and commercial uses not permitted under the current zoning. The public hearing will start at 6:30 p.m. In the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feat of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, In order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request Opposed to request Reasons for Opposition: CCTV OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 16201 • 940.349.6541 • (F) 940.348.7707 200' P8Z Notice 40 NOTICE OF PUBLIC HEARING Z09-0013 The Planning and Zoning commission of the city of Denton will hold a public hearing on Wednesday, April 14, 2010, and consider making a recommendation to the City Council regarding the rezoning of approximately 4.678 acres of property from a Neighborhood Residential 3 (NR-3) zoning district, to a Neighborhood Residential Mixed Use (NRMU) zoning district. The property is located at the northeast corner of West Oak Street and North Bonnie Brae Street. The applicant has stated the purpose of this rezoning request is to change the zoning designation of the property identified in the map on the back of this page to permit medical and commercial uses not permitted under the current zoning. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feet about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person.: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. T~] mission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request Opposed to request for Oppositi Signat re: Printed Name: I 1 Mailing Address: City, State Zip: I Telephone Number: 13 Physical Address of property within 200 feet: CITY OF DENTON, TEXAS CITY HALL WEST DENTON, TEXAS 76201 940.349.8541 (F) 940.349.7707 200' P&Z NOUC@ 41 r RECEIVED 04/09/2010 15!02 9727885234 DOLIRLaREE ACCrG Rpr 09 10 06:49p Planning nept Citp OP Den 9403497707 p.z NOTICE OF PUBLIC HEARING Z09-0013 The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, April 14, 2010, and consider making a recommendation to the City Council regarding the rezoning of approximately 4,678 acres of property from a Neighborhood Residential 3 (NR-3) zoning district, to a Neighborhood Residential Mixed Use (NRMU) zoning district. The property is located at the northeast corner of West Oak Street and North Bonnie Brae Street. The applicant has stated the purpose of this rezoning request is to change the zoning designation of the property identified in the map on the back of this page to permit mcclieal and commercial uses not permitted underthe current zoning. The public heating will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commisslon would like to hear how you feel about this request and invites you to attend the public hearing, Please, in order for your opinion to be taken Into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission- is informed of the percent of responses in support and in opposition. Please circle one: In favor of reque, t : Neutral to request Opposed to request Reasons for Opposition: Signature: Printed Name: / li=d- 'J L' ST/ZANa Mailing Address: i ~'a Gd.' b n l C r rc ie ~a 6 r -.L T -)c -7 G 2.4 ~ City, State Zip: L r Telephone Number. G 2 l u W S. Physical Address of Property within 200 feet: -32'b 94n'""f 1~"i~ t t1 L n, _ar.j c1 rYOF DENTON, TEXAS CITY HALL WEST" - DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 20c P&Z Nolce 42 0411212010 08.01 (FAX) P.0011001 NOTICE OF PUBLIC HEARING Z09-0013 The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, April 14, 2010, and consider making a recommendation to the City Council regarding the rezoning of approximately 4.678 acres of property from a Neighborhood Residential 3 (NR-3) zoning district, to a Neighborhood Residential Mixed Use (NRMU) zoning district. The property is located at the northeast corner of West Oak Street and North Bonnie Brae Street. The applicant has stated the purpose.of this rezoning request is to change the zoning designation of the property identified In the map on the back of this page to permit medical and commercial uses not permitted under the current zoning. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Bait located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail itto the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request Opposed to request Reasons for Opposition: may' w-E ~ -Q a =g_ 1 o G - r lzti~e C, 1k Signature: Printed Name: ZIXIA Mailing Address: l~~ll~ntL~Ctl l ~2 ~GLt'~S City, State Zip: 1 ~7r.a„"ro+iy x ~(p ~l~ ` Telephone Number: cj yr, - `3 A l - 7 V b~ Physical Address of Property within 200 feet: Ql CITY OF DENTON, TEXAS CITY HALL. WEST • DENTON, TEXAS 76201 940.349.8541 (F) 9413.349.7707 200'P&Z NoWe 43 NOTICE OF PUBLIC HEARING Z09-0013 The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, April 14, 2010, and consider making a recommendation to the City Council regarding the rezoning of approximately 4.678 acres of property from a Neighborhood Residential 3 (NR-3) zoning district, to a Neighborhood Residential Mixed Use (NRMU) zoning district. The property is located at the northeast corner of West Oak Street and North Bonnie Brae Street. The applicant has stated the purpose of this rezoning request is to change the zoning designation of the property identified in the map on the back of this page to permit medical and commercial uses not permitted under the current zoning. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. In favor of request Reasons for Opposition: Lease circle one: N utral to request opposed to request Signature: ( - , / Printed Name: 0.'m Mailing Address: o a , City, State Zip: Telephone Number. Physical Address of Property within 200 feet: CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 (F) 940.3497707 200' P&Z Notkc? 44 NOTICE OF PUBLIC HEARING Z09-0013 The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, April 14, 2010, and consider making a recommendation to the City Council regarding the rezoning of approximately 4.678 acres of property from a Neighborhood Residential 3 (NR-3) zoning district, to a Neighborhood Residential Mixed Use (NRMU) zoning district. The property is located at the northeast corner of West Oak Street and North Bonnie Brae Street. The applicant has stated the purpose of this rezoning request is to change the zoning designation of the property identified in the map on the back of this page to permit medical and commercial uses not permitted under the current zoning. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please ircle e: In favor of request Neutral to request Opposed to request Reasons for Opposition: Signature: Printed Name: Mailing Address: G u City, State Zip: J, V'\ Telephone Number: Physical Address of Property within 200 feet: C7 CITY OF DENTON, TEXAS UTY HALL WEST • DENTON, TEXAS 76201 940.349.8541 (E_) 940.349.7707 200' P&Z Notice 45 NOTICE OF PUBLIC HEARING Z09-0013 The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, April 14, 2010, and consider making a recommendation to the City Council regarding the rezoning of approximately 4.678 acres of property from a Neighborhood Residential 3 (NR-3) zoning district, to a Neighborhood Residential Mixed Use (NRMU) zoning district. The property is located at the northeast corner of West Oak Street and North Bonnie Brae Street. The applicant has stated the purpose of this rezoning request is to change the zoning designation of the property identified in the map on the back of this page to permit medical and commercial uses not permitted under the current zoning. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would tike to hear how you feet about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In (aver of request Neutral to request Opposed to request Reaso Oppositi Signature: Printed N JF t k~ g rbGC-_J/Z. Mailing Address: R7CJO v City,State Zip: 41k~ dkklk~ 71C 7 ~ Telephone Number: Z/y 6'iY. S~2_1 Physical Address of Property within 200 feet: a'E~1 -ScAerbk'~-'- SqV 3Lt{ ~w'V~ie; CITY OF DENTON, TEXAS CITY HALL. WEST - DENTON, TEXAS 76201 - 940349.8541 - (F) 940.349.7707 200' P&2 Notice 46 940-369-8760 LIB ADMIN PAGE 01 NOTICE OF PUBLIC HEARIN zas-oots G Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, it 14, 2010, and consider making a recommendation to the City Council regarding roximately 4.678 acres of property from a Neighborhood Residential 3 {NR-3) zoning district, to a s at the northeas lhborhood Residential Mitred Use (NRMU) zoning district. The roe the rezoning of er of West Oak Street and North Bonnie Brae Street. The applfcrOP asisflocated purpose of this t ning request is to Change the zoning designation of the property identified in the trap on the back is page to permit medical and commercial uses not permitted under the current zoning. public hearing will start at 6:30 p.m, in the City Council Chambers of City Hall located at 215 E. nney Street, Denton, Texas, Because you own W Property, the Planning and Zoning Commission would Ift to heahhowy you fee feet about the rs1 and invites you to attend the public hearing. Please, in order for your opinion to be taken into this ant, return this form with your comments prior to the date of the public hearing, (this in no way bits you from attending and participating in the public hearing.) You may fax it to the number ~d at the bottom or mail it to the address below or drop it off in-person- I Planning Division 221 N. Elm Street Denton, Texas 76201 Attn. Jane Gurney, Project Manager Thee forms are used to calculate the percentage of Iandownors that support and oppose the req est. The Commission is informed Of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request Reasons for Opposition: Opposed to request. r' c o ~ t~4 ~ vSe On Mould be and- af' ht`sy'or^~ ca/ ~bS 16,6 Yfe A7!Y~ /Y~+ acT ON „ec s/Jh _rva/ups eXc 5a; VC '4";T j'+ of Signa re: UA24M Printe Name: Su 54 n. -SJ L z Maiiin Address: 2- 2=70 WCst (59k aSf City, S 'ate Zip: Deht'0 9 1C 76 Z_O I Telephone Number: q q o^ is Y04-5 Physic hl Address of Property within 200 feet: `Zz'7a West- 04k ~-Tr p 1 CITY 290' P&; D,ENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940,349.6541 • (F) 840,349.7707 47 Apr 06 10 10:31a Microsoft P.1 April 6, 2010 To: Planning & Zoning Commission City of Denton From. Russell Rowe -Bonnie Green Apartments Re: Z09-0013 To Whom It May Concern, l vote to approve a rezoning of the subject property to a NRtVIU zoning district. The Bonnie Brae Medical Park provides the highest and best use for the property and a wonderful upgrade for the neighborhood. Respectfully, Rowe Owner 101-1215. Bonnie Brae 48 EXHIBIT 15 EXCERPT OF MINUTES FROM THE PLANNING AND ZONING COMMISSION MEETING OF APRIL 14, 2010 Public Hearing Item 4.B. Rezoning of approximately 4.678 acres of land from a Neighborhood Residential 3 (NR-3) zoning district to a Neighborhood Residential Mixed Use (NRMU) zoning district. The property is generally located at the northeast corner of Bonnie Brae Street and West Oak Street. (Z09-0013, Bonnie Brae Medical Park, Jane Gurney) Jane Gurney, Project Manager, presented this request for a zoning change. The property is comprised of seven separate tracts of land generally located the northeast corner of north Bonnie Brae Street and West Oak Street. The property surrounds an existing single family parcel that is not included in this rezoning request. Six of the properties are currently developed with residential uses, and one property (at the corner of Bonnie Brae and West Hickory) operated as a special exception retail sales and service, although this structure is currently unoccupied. The applicant is requesting a zoning change to NRMU, subject to a restrictive overlay, including no multi-family uses being permitted, and not industrial uses permitted by right (veterinarian hospitals or bakeries). The purpose of this request is to develop the site with medical-related and commercial uses not allowed under the current zoning. Twenty-nine legal notices were sent out. Staff received 6 responses in favor, 7 in opposition, and 2 neutral responses. This will require super majority by City Council regardless of P&Z vote. The Development Review Committee recommends denial of this rezoning request, as proposed by the applicant, however, the committee recommends approval of the rezoning of the six properties to NRMU with a restrictive overlay to prohibit multi-family uses, veterinarian clinics and bakeries, as shoN-,n in Exhibit 5B, and maintain the existing NR-3 zoning on the lot directly adjacent to the West Oak Area Historic District. The applicant's representative Larry Reichhart, Spring Brook Planning Group spoke in favor of the request. He stated that this is for a medical office and professional offices. They would like to leave the building at 2286 West Oak and just remodel. This request was generated by Presbyterian Hospital and Denton MD driving more medical offices in the area. Larry stated that this is more of a transitional zoning and not isolated. Several citizens spoke in opposition to this request for rezoning. Closed the public hearing at 8:17 p.m. Motion: Commissioner Brian Bentley motioned to reopen the public hearing and continue this item at the next meeting. Seconded: Commissioner Patrice Lyke On roll call vote, Chairman Walter Eagleton "aye", Commissioner Brian Bentley "aye", Commissioner Jay Thomas "aye", Commissioner Patrice Lyke "aye", Commissioner Thom Reece "aye", and Commissioner John Ryan "aye". Motion carried unanimously. Passed: 6-0 49 EXHIBIT 16 EXCERPT OF MINUTES FROM THE PLANNING AND ZONING COMMISSION MEETING OF APRIL 28, 2010 Public Hearings C. Rezoning of approximately 4.678 acres of land from a Neighborhood Residential 3 (NR-3) zoning district to a Neighborhood Residential Mixed Use (NRMU) zoning district. The property is generally located at the northeast corner of Bonnie Brae Street and West Oak Street. (Z09-0013, Bonnie Brae Medical Park, Jane Gurney) Jane Gurney, Project Manager, stated that this case was tabled from a previous Planning and Zoning Commission meeting. The request is for a rezoning of approximately 4.678 acres of land from a Neighborhood Residential 3 (NR-3) zoning district to a NRMU zoning district with consideration being given to a restrictive overlay. Staff recommends approval of a portion of the request in that 6 of the lots, closest to Bonnie Brae, be re-zoned to NRMU with a few overlay restrictions and that 2216 West Oak be maintained at the current zoning of NR-3. The applicant has revised the requested overlay restrictions to include that certain uses be prohibited. These were provided to the Commission in the Work Session. There were 29 legal notices sent to properties within 200 feet of the subject site. There were 6 responses in favor, 7 responses in opposition and 2 responses in neutral. More than 20% of the responses were in opposition, so if this request goes forward to City Council a supermajority vote will be required. The applicant's representative Larry Reichhart, Springbrook Planning Group, was present to speak. There were several citizens who were present who filled out speaker cards in opposition and some spoke to the Commission. The major concern addressed by the citizen's is the lack of a site plan and uncertainty of what could potentially be developed as well as the commercial use of a residential lot that borders a historic district. The applicant's representative offered rebuttal to the comment of citizen's and staff. Mover: Commissioner Jay Thomas motioned approval of the re-zoning of the 6 lots recommended by staff with overlay restrictions. Seconder: Commissioner Jean Schaake On roll call vote: Commissioner Jay Thomas "aye", Commissioner Jean Schaake "aye", Chairman Walter Eagleton "aye", Commissioner Thom Reece "aye", and Commissioner Brian Bentley "aye", Commissioner Patrice Lyke "nay". Passed: 5-1 50 sAegahour documents%ordinances1101z09-0013 bonnie brae medical.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FROM A NEIGHBORHOOD RESIDENTIAL 3 (NR-3) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION TO A NEIGHBORHOOD RESIDENTIAL MIXED USE (NRMU) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION ON TRACTS 256, 257, 258, 260 AND 261 OF THE E. PUCHALSKI SURVEY, WITH AN OVERLAY DISTRICT ON THOSE SAME TRACTS, PLUS TRACT 263, CONTAINING ADDITIONAL RESTRICTIONS AS NOTED; THE AREA FOR ZONING CHANGE ENCOMPASSES APPROXIMATELY 4.678 ACRES OF LAND LOCATED AT THE NORTHEAST CORNER OF NORTH BONNIE BRAE STREET AND WEST OAK STREET, IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, SEVERABILITY AND AN EFFECTIVE DATE. (Z09-0013) WHEREAS, Springbrook Planning Group has applied for a change in zoning for approximately 4.678 acres of land, depicted in Exhibit "A", and legally described in Exhibit.'B",. both of which are attached hereto and incorporated herein by reference (hereinafter, the "Property"), from a Neighborhood Residential 3 (NR-.3) zoning district classification and use designation to a Neighborhood Residential Mixed Use (NRMU) zoning district classification and use designation with consideration being given to overlay restrictions; and WHEREAS, on April 28, 2010, the Planning and Zoning Commission recommended approval of the change in zoning, subject to the conditions outlined in Sections 2 and 3 below; and WHEREAS, the City Council finds that the change is consistent with the Denton Plan and the Development Code; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference as true. SECTION 2. The zoning district classification and use designation for the Property is hereby changed from Neighborhood Residential 3 (NR-3) to Neighborhood Residential Mixed Use (NRMU), on tracts 256, 257, 258, 260 and 261, and shall remain as Neighborhood Residential 3 (NR-3) on Tract 263, with all tracts in the Property, containing the following additional restrictions: Notwithstanding the attached real property description, the property being rezoned includes all property to the centerline of all adjacent. street rights-of-way. I . Agriculture, Livestock, Attached Single-Family Dwellings, Multi-Family Dwellings, Live/Work Units, Hotels, Semi-public Halls, Clubs, and Lodges, Business/Trade Schools, Bakeries, and Veterinary Clinics, as defined by the Denton Development Code, are prohibited uses on the Property. 2. Building heights shall be limited to forty (40) feet. 3. Commercial and Retail Structures, with the exception of professional services and salegahour documents%ordinances11o1z09-o013 bonnie brae medical.doc office buildings, shall be limited to 7,500 square feet. A Specific Use Permit shall be required in order for additional square footage, not to exceed 25,000 square feet, as limited by the Denton Development Code. 4. An eight (8) foot high solid screen fence (good side out) constructed with steel posts and a decorative cap shall be constructed in the required buffer yard, in lieu of the required buffer shrubs. All required buffer trees shall be planted in accordance with the requirements of the Denton Development Code. Within the overall development, internal buffering between uses shall not be required. SECTION 3. The following architectural standards shall be incorporated into any new building constructed on the Property: 1. Architectural elements such as awnings, extended overhangs, columns or shutters shall be incorporated into the design of buildings. 2. All windows shall be double insulated windows with thermal break and no mirrored glass. 3. Flat roofs shall not be permitted. The minimum roof pitch shall be 4:12 and the maximum roof pitch shall be 10:12. 4. New buildings shall incorporate alternating roof plate heights. 5. Shingles, if used, shall be a minimum of 30 year architectural style composition shingle. SECTION 4. The City's official land use map is amended to show the change in the land use designation. SECTION 5. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 6. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 7. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2010. MARK A. BURROUGHS, MAYOR sAour documentsWdinances\1OV09-0013 bonnie brae medical.doc ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: AN] BY: PAGE 3 sAour documentslordmances1101z09-0013 bonnie brae medicaLdoc EXHIBIT A PAGE 4 scour documents\ordinances\10%z09-0013 bonnie brae medical.doc EXHIBIT B BEING all that certain lot, tract, or parcel of land situated in the Eugene Puchalski Survey Abstract Number 996 in the City of Denton, Denton County, Texas, being all that certain tract of land conveyed by deed from Billy Royce Kenas, et at to Berdy Tjandramulia recorded under Document Number 2008- 46396, Real Property Records, Denton County, Texas and being all that certain tract of land conveyed by deed from Denton Buildings, L. P. to Berdy Tjandramulia recorded under Document Number 2008- 46734, Real Property Records, Denton County, Texas and being all that certain tract of land conveyed by deed from Peter Mark Hulstrand and Randena Hulstrand to Berdy Tjandramulia recorded under Document Number 2008-33555, Real Property Records, Denton County, Texas and being all that certain tract of land conveyed by deed from Janice E. Lewis and Roger E. Lewis to Berdy Tjandramulia recorded under Document Number 2008-56461, Real Property Records, Denton County, Texas and being all that certain tract of land conveyed by deed from WM Specialty Mortgage LLC to Berdy Tjandramulia recorded under Document Number 2007-100115, Real Property Records, Denton County, Texas and being all that certain tract of land conveyed by deed from Margaret Barnes, et al to Berdy Tjandramulia recorded in Volume 4258, Page 2186, Real Property Records, Denton County, Texas and being all that certain tract of land conveyed by deed from Ralph N. Kimmey and Nancy M. Kimmey to Berdy Tjandramulia recorded under Document Number 2009-127975, Real Property Records, Denton County, Texas and being more particularly described as follows: BEGINNING at an iron rod found for comer in the north line of West Oak Street, a public roadway, said point being the southwest comer of that certain tract of land conveyed by deed from Michael H. Nolen to Lynda Lee Parker Nolen recorded in Volume 1844, Page 626, Real Property Records, Denton County, Texas; THENCE N 89° 06'26" W, 299.44 feet with said north line of said West Oak Street to a point for comer in the east line of North Bonnie Brae, a public roadway; THENCE N 01 ° 35' 32" W, 148.58 feet with said east line of said North Bonnie Brae to a point for corner, said point being the southwest corner of that certain tract of land conveyed by deed from Pamela Ann Strickland et al to Richard T. Muir and John D. Springer recorded in Volume 1821, Page 471, Real Property Records, Denton County, Texas; THENCE EAST, 100.00 feet with the south line of said Muir and Springer tract to a point for corner, said point being the southeast corner of said Muir and Springer tract; THENCE N 00° 16' 10" W, 99.86 feet with the east line of said Muir and Springer tract to a point for corner, said point being the northeast corner of said Muir and Springer tract; THENCE West, 144.10 feet with the north line of said Muir and Springer tract to an "X" in concrete found for corner in said east line of said North Bonnie Brae; THENCE N 11° 05' 31" W, 298.10 feet with said east line of said North Bonnie Brae to an iron rod found for corner, said point being the southwest corner of that certain tract of land conveyed by deed from Rayzor Investments, Ltd. To David J. Ostrom and Melody L. Buys recorded in Volume 4205, Page 882, Real Property Records, Denton County, Texas; THENCE N 86° 59' 58" E, 124.27 feet with the south line of said Ostrom and Buys tract to a fence corner for corner, said point being the southeast comer of said Ostrom and Buys tract; THENCE N 01° 43'36" W, 142.59 feet with the east line of said Ostrom and Buys tract and with the PAGE 5 scour documents\ordinances\10\z09-0013 bonnie brae medicai.doc east line of that certain tract of land conveyed by deed from Maggie Sue Collier Davis to Willie A. Hudspeth and wife, Doretha Hudspeth recorded in Volume 928, Page 682, Deed Records, Denton County, Texas to a fence corner for corner, said point being the southwest corner of that certain tract of land conveyed by deed from J. Michael Drown and wife Kimberly Drown to Jeffrey S. Talbot and Terri L. Talbot recorded under Document Number 2004-63111, Real Property Records, Denton County, Texas; THENCE S 89° 14'08" E, 178.29 feet with the south line of said Talbot tract and with the south line of that certain tract of land conveyed by deed from Ludell Ford Austin et al to J. Michael Drown recorded under Clerk's File Number 94-R0028663, Real Property Records, Denton County, Texas, to an iron rod found for corner, said point being the northwest corner of Lot 1, Block 1 of Houston Place Addition, an addition to the City of Denton, Denton County, Texas according to the plat thereof recorded in Cabinet D, Page 107, Plat Records, Denton County, Texas; THENCE S 00° 42'58" E, 145.68 feet with the west line of said Houston Place Addition to an iron rod found for corner in Houston Place, an unimproved roadway having a right-of-way of 50.0 feet; THENCE S 89° 06' 38" E, 114.39 feet with said Houston Place to an iron rod found for corner; THENCE S 00° 54'38" W, 24.92 feet to an iron rod found for corner in the south line of said Houston Place and in the north line of that certain tract of land conveyed by deed from Thomas Paul Kehler to Andrew R. Cooper recorded in Volume 1235, Page 981, Deed Records, Denton County, Texas; THENCE N 89° 01'20" W, 10.93 feet with said south line of said Houston Place and with said north line of said Cooper tract to an iron rod found for comer, said point being the northwest comer of said Cooper tract; THENCE S 00° 46'48" E, 147.94 feet with the west line of said Cooper tract to an iron rod found for corner, said point being the southwest corner of said Cooper tract; THENCE S 89° 56' 34" E, 6.67 feet with the south line of said Cooper tract to an iron rod found for corner, said point being the northwest corner of said Nolen tract; THENCE S 00° 57' 08" W, 372.18 feet with the west line of said Nolen tract to. the PLACE OF BEGINNING and containing 4.678 acres of land. PAGE 6 AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Planning and Development ACM: Fred Greene SUBJECT: -DCA10-0003 (Gas Well Ordinance) Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas amending: (1) Subchapter 23 - Definitions - of the Denton Development Code (DDC); (2) Subchapter 22 of the DDC regarding gas well drilling and production; (3) Subchapter 16 of the DDC regarding gas well development plat; (4) Subchapter 3 of the DDC regarding authority given to the Zoning Board of Adjustment; and (5) The schedule of fees contained in Ordinances 2005-237, and 2009-098 (2006 City Fire Code), pertaining to gas well drilling and production within the City limits and the Extraterritorial Jurisdiction; providing for severability, and providing an effective date (DCA10-0003). The Planning and Zoning Commission recommended approval of this request (5-2). BACKGROUND: In prior meetings, staff presented the findings that resulted from the research and analysis of gas well drilling and production ordinances from: Ft. Worth, Lewisville, Arlington, Weatherford, Corinth, Roanoke, and Flower Mound. The information in the fee comparison demonstrated that Denton's fees were extremely low in contrast with the other cities. Subsequently, staff met and determined that due to the magnitude and complexity of the topic, it would be best to approach the task in two (2) phases. It was determined that the first phase of the process would involve an initial amendment to the ordinance to address: (1) a revised Fee Schedule; (2) revised noise levels; (3) increased separation distance requirement between gas wells and "Protected Uses,"; (4) increased minimum screening requirement between gas wells and protected uses; (5) amended language governing Gas Well Development Plats and, Gas Well Permits; and to establish the requirement for Gas Well Development Site Plans for gas well drilling and production within the City. On July 15, 2010, the Planning and Zoning Commission conducted a public hearing on the proposed amendment, and recommended approval, noting four areas of concern for consideration by Council: (1) a desire to remove consideration of variances by the Zoning Board of Adjustment; (2) a desire to limit the minimum separation distance that may be approved by waiver or variance, to no less than 500'; (3) a desire to limit adjustment to noise levels to daytime hours only; and (4) directed staff to re-review the proposal to reduce the duration of. (i) gas well plats in the ETJ from 2 years to 1 year from the date of approval; and (ii) gas well permits from 1 year to 6 months with City limits. DISCUSSION: The focus of this report is to present staffs recommendations regarding the subject matter enumerated under Phase I. L Gas and Oil Drilling and Production Permit Fees: Based on a recent cost-of-service analysis conducted by staff, it is determined that the gas well drilling and production fees that were established in 2005 are inadequate to cover the cost to provide these services, as shown below. Expenditure Revenue Activities (cost-to-serve) (fees) Net EIISTING FEES Gas \Vell Dev elo pment Plat $4.0-10 $260=` Gas Nell SUP $12,435 $2,150'` i Gas Well Development Plat $4,930 $5,000 $71 Gas Well SUP $12,4315 $12,500 $67 *Based on a 10-acre site In addition, a fee comparison of eight (8) cities within the Metroplex (including Denton) demonstrated that Denton's fees are extremely low in comparison with the other cities, and that Denton is not assessing several relevant fees. Prior to April 2007, the City had a Gas Well Drilling and Production Coordinator who was responsible for managing, coordinating, and conducting field inspections of gas well drilling and production within the City and the ETJ. However, in April 2007, the position was vacated. According to information obtained from the City's Geographic Information System (GIS), there are currently two hundred and six (206) gas wells within the City (including one (1) oil well) and another one thousand and forty five (1,045) wells in the ETJ, totaling one thousand, two hundred and fifty one (1,251) wells that are under the City's jurisdiction. This does not take into account the additional gas wells that were absorbed into the City and the ETJ as a result of the recent annexations. Staff has evaluated the City's recordation, management, inspection, and review of gas well drilling and production activities of the above 1,251 gas wells; specifically those within the City limits. The evaluation identified the need for more effective record management, site inspections, and overall oversight. As such, staff has concluded that it is timely and necessary to hire qualified gas well specialists to reassume the duties and responsibilities 2 that were previously under the purview of the former Gas Well Drilling and Production Coordinator. There has been heightened public awareness and concern surrounding natural gas production, due mostly to perceived or real adverse impacts that could potentially result from breathing hydrocarbons that are released during gas well drilling and production. There are also concerns regarding the contamination of potable freshwater wells being used for human consumption. These have led to an increase in the amount of hours staff must spend responding to citizen complaint such as regular monitoring of sound meters on gas well sites, reviewing hazard mitigation plans, and conducting more than the normal number of site monitoring visits to ensure compliance with various conditions of gas well development plats and permits. These requests have also contributed to the need to hire knowledgeable staff. Included in this report are several amendments to the DDC that will require additional reviews and site inspections not currently required (such as those pertaining to conducting decibel readings), ensuring distance separation requirements of the proposed "Protected Uses," performing more frequent periodic inspections of gas well sites as required in Section 35.22.15 of the DDC, and the review of Gas Well Development Site Plans. In addition, greater attention is required in conducting annual administrative review of insurance, indemnification and security bond documents to ensure that these documents are kept current. The proposal to hire gas well specialists is also based on a recent study of how other cities within the Metroplex manage their gas well drilling and production activities. For instance, the City of Fort Worth has five (5) personnel, who are primarily responsible to manage, coordinate, and conduct field inspections for approximately seventeen hundred (1,700) gas wells within their city. Ft. Worth's personnel include of: one (1) Gas Well Management Development Administrator, two (2) Gas Well Inspectors, and two (2) Administrative Assistants. A recent discussion among various cities within the Metroplex, and staff's inquiries among gas well companies indicates that the City of Fort Worth has one of the most comprehensive requirements for gas well drilling and production in the region. Ft. Worth is also regarded as one of the cities in the Metroplex with a more efficient review and inspection process. Staff is initially proposing the hiring of four (4) FTEs to oversee, inspect, and manage the gas wells that are under the City's jurisdiction. The proposed four (4) FTE will include one (1) Gas Well Administrator, two (2) Gas Well Inspectors, and (1) Administrative Assistant. The estimated first year cost of the four (4) FTEs (including salaries, benefits, and equipment) is $652,269. The annual cost thereafter will decrease, given that the first year cost includes the purchase of three (3) vehicles, which will not carry-over to future years. Please see the chart below for additional information. 1.~. Gas ~VclI Administrator.. 572.800 S27 0 Q S, 100 110 Gas Wcll Inspcctor Gas WCII Inspector $42,244 $59.592 $20,082 $24.185 $62,328 $83.778 Off cc Assistant $4 3.080 $21)_422 $04.10 Total $218,316 $91,999 $310,317 Gciicral Ad1niiiistritiNc/SupportSCI-NICCs Total Equipment- Support 42,, $1(19.527 Grand Total For 4 FTEs $652,269 Due to the recent (and future) annexations, staff anticipates that one or more additional Gas Well Inspectors will be needed due to the anticipated increase in number of gas wells that will be under the City's jurisdiction. In addition, as the City's gas well review and inspection program develops, and as performance measures are conducted and reviewed, the results may also justify additional personnel to effectively and efficiently manage the workload. The exact increase in the number of gas wells has not been determined as of the date of this report. Current and Proposed Fees: In order to provide the level of services contemplated by the proposed regulations and to avoid the previous circumstance, in which many services were not funded and unrecovered expenses were subsidized by general fund revenue, rather than fees for service, staff is recommending increases to the current gas well review fees, as set forth in the revised fee table. below. Gas Nell Dc:v Jopimmt Plat $2OO + per acre $4.~>3O $5,000 Gas \Vcll Plat Anlcndnlcnt $25(1 $4-93(1 $,,000 Application Rcv icN\ (SUP - I'` 2 rcv icN\ s) $1.500 + $(,5 pcr ac. $12.435 $12,500 Watcrshcd Protcction Permit $ I.3UU $2.971 $3,000 Gas Well Permit $200 $544 $550 Gas Nell Dc:v Jopimmt Site Plan $O $7,500 Gas NV'cll DcNclopmcnt Sitc Plan Amcndmcnt $0 $5,000 Additional Rcv ICN\ s $O $4.~>3O $5,000 Transfer of Operation $0 $6h4 $700 Annual Inspection and Administration (City-) $0 $1,597* $3,200 Annual Inspection and Administration (ETJ) $0 $900* $1,800 4 Fractw-c/Drill Pond $U $544 $550 Compressor Facility Permit $0 $544 $550 *The current cost-of-service is based on one inspection per year. However, the proposed annual fees are designed to recover at least the cost-of-service for two (2) inspections per year. It is anticipated that midtiple inspections may be required annually, per gas well. Fiscal Impact: This fee proposal and study is based on the number of existing gas wells within the City and the City's ETJ, and the average number of gas well permits reviewed annually from 2005 to 2009. Annual Inspection and Administration Fee - As previously stated, there are currently 206 gas wells within the City and 1,045 within the ETJ, totaling 1,251 gas wells. However, the number of wells is expected to increase in light of the recent (and future) annexations. Staff estimates that the proposed Annual Inspection and Administration Fees will generate approximately $659,200 from gas wells within the City, and potentially $1,881,000 from gas wells within the ETJ, for an overall total of $2,540,200. This calculation is based on the proposed Annual Inspection and Administration fee of $3,200 per gas well within the City and $1,800 for gas wells within the City's ETJ times the number of gas wells within each jurisdiction. It is staff's determination that the proposed fees are adequate to cover the cost-of-service for conducting, at a minimum, two (2) inspections per gas annually. Funding for the salaries, benefits and equipment needed for all gas well inspectors will come from the revenue generated from these inspections. Gas Well Development Plat/Site Plan Review Fee - It is projected that approximately $105,000 in annual revenue will be generated from gas well plat/site plan reviews that do not require an SUP. The number of gas well plats reviewed per year from 2005 to 2009 within the City and the E.T.J are shown in the table below: 4 7 5 31 411 10.2 8 18 2 3 0 II 6.2 Gas Well SUP Fee - Using figures from the same five (5) years, it is also projected that approximately $25,000 will be generated from gas well applications that require SUP. This projection is based on a proposed fee of $12,500 times two (2), which is the average number of Gas Well SUPS reviewed per year from 2005-2009. Summary - Based on the aforementioned calculations, it is projected that $2,670,200 in annual revenue will be generated from Gas Well Development Plats/Site Plan reviews, and gas well SUP reviews, in conjunction with the proposed annual inspection and administration fees, if the fees proposed by staff are adopted. The total cost-of-service 5 associated with these activities is estimated to be $2,668,414; resulting in an annual net revenue of $1,786. The projected annual cost-of-service and revenue are shown in the table below. These calculations are based on the average number of application reviewed by the City during the recent five (5) years: Activities Proposed Revenue Costs-of- Service Net Revenue Gas Well Plat Reviews $30,000 $29,580 $420 Gas Well Site Plan Reviews $75,000 $75,000 0 Gas Well SUP Reviews $25,000 $24,870 $130 Annual Inspection and Admin. (City) $659,200 $657,964* $1,236 Annual Inspection and Admin ETJ $1,881,000 $1,881,000 $0 Total $2,670,200 $2,668,414 $1,786 *The projected cost-of-service for inspections is contingent upon conducting on an average, two (2) annual inspections per gas well. There are additional net revenues that will be realized from the new fees that are proposed by staff, however, projections cannot be made at this time, given that there is no historical data associated with these activities. It is important to note that the collection rates associated with the new inspection fees are difficult to assess since we do not have any history in charging these fees. In addition, the exact impact of these inspections to other departments is not known with certainty Activity Fee The following fees shall be charged for the first two (2) reviews Gas Well SUP Review $12,500 Gas Well Development Site Plan $7,500 Gas Well Development Plat Review $5,000 Gas Well Plat/Site Plan Amendment $5,000 Each additional tivo (2) reviews $5,000 The following fees shall be charged annually per gas well Annual Inspection and Administration Ov ithin City-) $3,200 Annual Inspection and Administration (within ETJ) $1,800 The following fees shall be charged per each application NN'atcrshcd Protcction Pcrmit $ 3.000 Transfcr of Opcration $700 Gas Wcll Pcrnut $~~U Fracturc/Drill Pond $550 Compressor FacilitN Pcrmit $55U 6 II. Definitions: To eliminate potential ambiguity and to provide clarity to some of the proposed language that is being recommended by staff, it is necessary to amend existing terms, and to add several terms and their associated definitions to DDC 35.22.2 - Definitions, and DDC 35.23. III. Minimum Separation Requirements (Setback), and Duration of Gas Well Permit: During staff's research of the seven (7) comparison cities in the Metroplex, it was discovered that three (3) cities: Weatherford, Roanoke, and Flower Mound currently have a one thousand-foot (1,000') minimum separation requirement between gas wells and Protected Uses or freshwater wells. (See table below,-) -1 S() feet 1,000 feet from water supply well 1,000 feet 1,000 feet - 500 feet if the ovv ner has an mineral into rest in the gas Nv e11 To aid with the mitigation of some of the potential negative impacts associate with gas well drilling and production, such as noise, light, and air pollution, and to lessen the possibility of potable freshwater well contamination, staff recommends that Subsections 35.223.A and B be amended to increase the minimum separation distance between gas wells and any Protected Use (residence, church, public park, public library, hospital, or school), active potable freshwater wells, or a previously platted residential subdivision where one (1) or more lots have one (1) or more strictures, from five hundred feet (500') to one thousand feet (1,000'). Except where more stringent separation distances are specified, the minimum separation distance between gas drilling or production, including gas wells, tanks, dehydrators, separators, mud pits, tank battery, etc., and all other uses or features shall be five hundred feet (500'). Staff also recommends that provisions be made available to reduce the above minimum separation distances to as low as three hundred (300) feet, via the granting of a variance by the City's Zoning Board of Adjustment, or if all the property owners of the affected uses within the anticipated reduced separation area agree to the reduction via a notarized waiver. Duration of Gas Well Drilling Perini : It is anticipated that a large number of gas well drilling permit applications will be submitted to the City with the intent to "vest" the right to commence gas well drilling and production without being subject to any of the more stringent regulations proposed herein. Staff is recommending that the duration of a Gas Well Drilling Permit be reduced from one year (1) to six (6) months with an automatic expiration. If gas well drilling activities have commenced under a valid drilling permit, the permit must be renewed annually. However, 7 if gas well drilling activities have not commenced during the six (6)-month life of the permit, the drilling permit may not be extended; however, the Operator may reapply for a new drilling permit, subject to all requirements of the DDC, as amended. IV. Board of Adiustment Authority: Staff is proposing the option of reducing the minimum separation requirement established in DDC 35.22.3.A.1 and 2 above via the granting of a variance by the City's ZBA V. Screening: Per Subsection 35.22.5.2.n of the DDC - On-site Requirements: "All well heads, storage tanks, separation facilities or other mechanical equipment located irithln 500' of an a4jacent residential property and not frith n a floodplain shall be screened from the residential property with a 6' high solid screen fence, good side facing the residential property. " Staff recommends that five hundred foot (500') separation distances between well heads, storage tanks, separation facilities or other mechanical equipment be increased to one thousand feet (1,000') for Protected Uses; that the minimum screening height be increased to eight feet (8') for all uses; and that the screening material be upgraded to a decorative opaque masonry wall. VI. Noise Management: One of the most frequent protests associated with gas well drilling and production is the noise associated with these or such activities. Six (6) of the cities studied by staff conduct a noise study prior to drilling activities. The noise study assists the cities to establish an Ambient Noise Level, which is used to set the baseline for noise levels for drilling operation. In addition to the noise study, the six (6) cities require a Noise Management Plan. Information contained in the Noise Management Plan demonstrates how the increases in noise level resulting from drilling operations will be mitigated. In addition to determining permitted noise levels based on the established Ambient Noise Level, the sampled cities also have maximum permissible noise levels for gas well drilling and production activities. These noise levels range from a minimum of seventy decibels (70d13) to eighty five decibels (85dB). 8 The following table illustrates the noise level standards for the cities that were studied by staff: 1E Denton Ft. V orth LevyisN Me Arlin tun 90dB at any point 300 Dependent on ambient Noise management Dependent on ft from the boundary noise level submitted plan is required; ambient noise level of the drill site or by noise study. however, noise cannot but not to exceed operation site. Noise levels are exceed 78dB measured 78dB measured 300 ft measured 600 ft from a 300 ft from the from boundaries of Protected Use. production equipment the site. u11E ; the ambient level is higher. NX catherford Corinth Roanoke Fhmcr Mound Noise level is not Dependent on the 78dB mF i>ured 300 ft Noise management allowed to exceed results of Noise study. from the production study/plan is required; 70dB measured 100 ft Noise levels are equipment. however, noise cannot from the boundary of measured 100 ft from a Sound level of 85dB exceed 70dB the drill site for Protected Use. measured 300 ft from measured 300 ft from combustion engines. the production the production equipment is allowed equipment. during fracturing. According to the Department of Labor, the ninety decibels (90dB) permitted by 35.22.5.A3.d is the typical sound level generated by a lawn mower or a chain saw. Constant exposure to this level of sound is considered a nuisance, and incompatible to Protected Uses or habitable strictures. Therefore, staff recommends that Subsection 35.22.5.A3.d be amended; new language be added as 35.22.5.A.31 that references the minimum noise mitigation standards established in a new subsection - 35.22.5.B - Noise Management Plan; and that the current 35.22.5.B becomes 35.22.5.C. VII. Gas Well Development Plats Since its inception, Denton's gas well regulations have been implemented, in part, using a platting model instead of a zoning model. This change carried the advantage of extending regulatory authority into the extraterritorial jurisdiction - a model that was quickly emulated by other cities. However, in leaving a zoning-centric model within the city limits, Denton lost some of the regulatory advantages to be gained by that method, and work sessions revealed Council's desire to gain these advantages back, where possible. Consequently, the current draft recommends a more zoning-centric model of requiring site plans within the City limits, where it can be used to full advantage, while retaining a plat- centric model within the ETJ. EXHIBITS: 1. Combined DDC amendments 2. Ordinance 9 OPTIONS 1. Approve as submitted. 2. Approve subject to conditions. 3. Deny. 4. Postpone consideration 5. Table item Prepared and Respectfully submitted by: Mark Cunningham, AICP, CPM Director of Planning and Development 10 Exhibit 1 Citation Proposed Ordinance 35.3.6 A. The following actions shall follow the Board of Adjustment Procedure: 1. Consider an application for a Variance from the zoning regulations. 2. Consider an application for a Variance from the sign regulations. 3. Consider an application for a Variance from gas well drilling and production regulations, within the City- limits. 4. Consider an application to change, reestablish or terminate a Nonconforming tTse. -5. Consider an appeal of an Administrative Decision. 35.3.6.B.2 The Zoning Board of Adjustment may grant a variance from the front card, side card, rear card, lot width, lot depth, coverage, minimum setback standards, landscaping regulations, or from the minimiun separation regrurement for gas well drilling and production, where literal enforcement of the regulations will result in an unnecessary hardship and where the variance is necessary to develop a specific parcel of land, which because of site's shape, size or topography differs from other parcels in the same district, and that it cannot be developed in a manner commensurate with the development allowed for the other parcels. A variance shall not be granted to relieve a self-created or personal hardship or to relieve a purely financial hardship. In granting any variance, the board may designate conditions, which, in its opinion, will secure substantially the purpose and intent of the Development Code. A variance shall only be granted upon a finding that: 35.16.19.A Any person who proposes gas drilling or production on a tract of land located within the City's Extraterritorial jurisdiction, shall submit a Gas Well Development Plat for review and approval by the City-. If any portion of the proposed area to be platted lies within a floodplain, an ESA or within one thousand, two hundred feet (1,200') of the flood pool elevation of Lake Ray Roberts or Lake Lewisville, a watershed protection permit application for such area(s) shall be submitted with the development plat application, and shall be decided before any decision on the plat. 35.16.19.D.8 c. Show the location and use of all structures within one thousand feet (1,000') of the wellhead. j. Clearly delineate the boundaries of the gas well drilling or production area with metes and bounds. All gas well drilling and production activities shall be limited to this area. k. A Gas Well Development Plat shall only contain one (1) drilling or production area, and the area shall not be greater than five (5) acres. 35.16.19.E 1. If gas well drilling activities have not commenced within one (1) year from the date of approval, the Gas Well Development Plat shall expire. 2. A Gas Well Development Plat may not be extended. 3. If the Gas Well Development Plat expires, then so too shall all associated Watershed Protection Permits. 4. tTpon expiration of a Gas Well Development Plat, the applicant may reapply for a new Gas Well Development Plat, subject to all requirements of the DDC, as amended. If a Watershed Protection Permit is required in conjunction with the Gas Well Development Plat, the applicant must also apply for a new Watershed Protection Permit, subject to all requirements of the DDC, as amended. -5. If gas well drilling or production has commenced, the gas well drilling and production area shall be subject to inspections by the Cit\-, and shall also be subject to an Annual Inspection and Administration Pee. DDC 35.22.2 Operator. The person listed on the Railroad Commission Form N\--tor Form P-4 for a well as the person that is, has applied for, or will be actually in charge and in control of drilling, maintaining, operating, pumping, or controlling any well or pipeline including without limitation, a unit operator. Ambient Noise Level. An all-encompassing noise level associated with a given environment. A composite of sounds from all sources (excluding the noise in question) at the location and approximate time at which a comparison with the noise in question is to be made. In this context, the ambient noise level constitutes the normal or existing level of environmental noise at a given location. The Ambient noise Level is established by recording sounds from all sources (excluding the noise in question) over a continuous seventy--two (73) hour period at the location prior to drilling. The seventy--two (73) hour time span shall include at least one twenty--four (34) hour reading during either a Saturday or Sundae. Blowout Preventer. a mechanical, hydraulic, pneumatic or other device or combination of such devices, secured to the top of a well casing, including valves, fittings and control mechanisms connected therewith, which can be closed around the drill pipe, or other tubular goods which completely closes the top of the casing and are designed to prevent blowouts. Commencement of Drilling Activities. The reflection of either "spud Well" or "Nipple Up" the Blow Out Protectors (130P) by the drilling contractor on the LSDC API Daily Drilling Report Form maintained by the Operator's tool pusher on the pad site. Completion of drilling, re-drilling and re-working. The date the work is completed for drilling, re-drilling, or re-working, and the crew is released by completing its work or contracted by its employer. Daytime. The period from 7:00 am to 7:00 pm., Monday through Friday-; and from 8:00 am to 5:00 pm., Saturdays and Sundays. Drilling and Production Area (AKA Gas II'ell Park, Gas II'ell Pad Site). The area dedicated to all gas well drilling and production activities, including the drill site, all structures, closed-loop systems, dehydrators, parking areas, security- cameras, lighting, tanks, tank batten-, drilling rigs, separators, compressors, perimeter walls, utilities, and all other features or objects contemplated for use during and after gas well drilling or production. Flowback. The process of recovering fluids or residual from a completed or fractured well. Gas Production. The phase that occurs after successful exploration, drilling and development involving operations including but not limited to, gas wells, tanks, dehydrators, separators, mud pits, ponds, tank batteries or associated mechanical equipment, and during which hydrocarbons are extracted from the gas field, excluding those operations and facilities as defined and regulated by the Pipeline Safet\_ Act of 1994, 49 US(-_. 60101 - 60137. Habitable Structure. Structures suitable for human habitation or occupation for which a Certificate of Occupancy or Final Inspection Certificate is required, including but not limited to single or multi- family residences, accessory- guess houses, hotels, condominium buildings, public buildings, and buildings used for commercial or industrial purposes. A habitable structure shall not include non- habitable accessory buildings garages and sheds. Lift Compressor. A device that raises the pressure of a compressible fluid (gas) in order to lift gas from the well. Line Compressor. A device that raises the pressure of a compressible fluid (gas) in order for the gas to be transported through a pipeline. Nighttime. The period commencing at 7:00 pm and ending at 7:00 am., Monday through Friday and from 5:00 pm to 8:00 am., Saturdays and Sundays. Nipple Up. The process of assembling well-control or pressure-control equipment on the wellhead. Permit, Gas Well Any written license grunted by the Cit\- of Denton for the exploration, drilling, development, and production of natural gas, issued pursuant to rules and regulations of this Subsection. Protected Use. Any residence, church, public park, public libran-, hospital, or school. Residence. A home, abode, or place where an individual is actually living at a specific point in time. A structure or part of a structure containing dwelling units or rooming units, including single-family or two-family houses, multi-family dwellings, boarding or rooming houses, elderly living facilities, apartments, or dormitories. Workover Operation. Fork performed on a well after its completion in an effort to secure production where there has been none, to restore production that has ceased, or to increase production. 35.22. Zoning District Classifications for Gas Well Drilling and Production A. The drilling and production of gas within the corporate limits of the City- shall be permitted by right within the Rural Residential (RD-5), Rural Commercial (R(--), Neighborhood Residential 1 (NR-1), Neighborhood Residential 2 (NR-2), Regional Center Commercial Neighborhood (RC(--- N), Regional Center Commercial Downtown (RC(---D), Employment Center Commercial (E(--- C), Employment Center Industrial (E(---I), Industrial Center Employment (I(---E) and Industrial Center General (IC-G) Zoning Districts, except as provided in subsection B, and subject to compliance with the requirements of this subchapter. B. The drilling and production of gas within the corporate limits of the City- in all other zoning districts shall be permitted only by Specific tTse Permit pursuant to subchapter 3-5.6. Notwithstanding the provisions of Subsection A, approval of a Specific tTse Permit also shall be required for gas well drilling and production on any land located within the 100-rear floodway or within one thousand, two hundred feet (1,200') of the flood pool elevation of Lake Ray Roberts or Lake Lewisville. 1. An application for a Specific tTse Permit for the drilling and production of a gas well shall be filed by the person haying legal authority-. That person is presumed to be the record owner, mineral owner, or the duly authorized agent of either the record owner or the mineral owner. The Chairman of the Development Review Committee (DR(--) may require an applicant to submit information of authority- to file an application. 2. The Chairman of the DRC has the authority- to establish requirements for applications in the Application Criteria Manual. No application shall be accepted for filing until it is complete and the fee established by the City- Council of the City- of Denton has been paid. Incomplete applications shall be returned less a fee for processing determined by the Director of Planning and Development. 3. Approval of a Specific tTse Permit shall be conditioned on compliance with the requirements of this Subchapter. 35.22.4 35.22.4 Required Authorization for Gas Well Drilling and Production in City Limits A. No gas well drilling or production activities may be commenced within the City- limits until the following authorizations have been obtained, in the following sequence: 1. Approval of a Specific tTse Permit, where required by section 3.22.3.8; 2. Approval of a Watershed Protection Permit, where location of any gas well drilling or production activities is proposed on land in the flood fringe or in an ESA, subject to the application requirements and standards of section 3-5.22.-5.A.8; 3. Approval of a Gas Well Development Site Plan, subject to the application requirements and standards of section 3.22.6; and 4. Approval of a Gas Well Permit, subject to the application requirements and standards of Section 3.22.7. B. An application for any authorization for gas well drilling and production listed in Subsection A may be submitted simultaneously with any other listed application, but the applications must be decided in the numerical order listed. No subsequent application shall be determined to be complete and hereby is deemed to be incomplete until all required prior applications have been approved, and no completeness determination shall be made until such prior applications have been decided. C. Approved applications for gas well drilling and production shall expire under the following circumstances: 1. A Specific tTse Permit shall expire according to its terms; 2. A Watershed Protection Permit shall expire with the expiration of a Gas Well Development Site Plan. 3. A Gas Well Development Site Plan shall expire unless a complete application for a gas well permit has been filed within one (1) year of the date of approval of the site plan. 4. A Gas Well Permit shall expire if gas well drilling activities have not commenced within six (6) months of the date of approval of the Gas Well Permit. 5. The expiration of any subsequent application shall result in the expiration of all prior approved applications. D. Approved applications for gas well drilling and production may not be extended prior to expiration. Following expiration of an approved application for gas well drilling and production, a new application must be submitted, which shall be subject to all DDC standards and procedures then in effect. E. Each authorization identified in this Section shall be construed as an exercise of the City's zoning powers, pursuant to City Charter, Tex. Loc. Gov't Code Chapter 211 and the provisions of subchapter 353 of the Denton Development Code. F. The authorizations required by this Subchapter are in addition to, and not in lieu of, any permits that may be required by any other provision of the Denton City- code or by any other government agency. 35.22.5 A. The drilling and production of gas wells within the City limits or the City's ETJ shall include the following standards. 1. Separation standards. The following requirements apply only within city- limits. a. No gas well drilling or production area may be located within one thousand feet (1,000') of any protected use, or freshwater well currently in use at the time a complete application for a Gas Well Development Site Plan is filed, or within one thousand feet (1,000') of any lot within a previously platted residential subdivision where one (1) or more lots have one (1) or more structures. b. Except where more stringent separation distances are specified, the minimum separation distance between gas drilling or production, and all other uses or features other than those listed in 35.22.5.A. 1.a, shall be five hundred feet (500'). c. The minimum separation requirement established in 35.22.5. A.1.a and b above may be reduced via the granting of a variance by the Zoning Board of Adjustment. Alternatively, all the property- owners of the affected uses, all owners of property- with a freshwater well currently in use at the time a complete application for a gas well development site plan is filed, and all owner of lots in a previously platted residential subdivision where one (1) or more lots have one (1) or more structures within the reduced separation area, may consent to the reduction via a notarized waiver, if the notarized waiver is attached to the permit application, in which case no variance shall be required. Except that the minimum separation distance may not be reduced to less than five hundred feet (500'). d. Separation distances shall be measured from the boundary of the drilling and production areas identified on the Gas Well Development Plat or Gas Well Development Site Plan, in a straight line, without regard to intervening structures or objects, to the closest exterior point of any structure occupied by a Protected tTse, or freshwater well currently in use at the time a complete application for a gas well development site plan is filed, or the closest lot line of any undeveloped lot within a previously platted residential subdivision where one (1) or more lots have one (1) or more structures. 35.22.5.A.2 e. Permanent weatherproof signs reading "DANGER NO SMOKING ALLOWED" in a minimum of four inch (4") lettering shall be posted at the entrance of each drill site and operation site. The sign shall include the development or operating company that is currently responsible for the gas well plat or site plan, the Railroad Commission Well Identification Number and the American Petroleum Institute nrunber for the well, the phone niunber for emergency services (911), the number for the operator, and any other well designation required by the Railroad Commission in two inch (2'~ lettering. n. All well heads, storage tanks, separation facilities or other mechanical equipment located within one thousand feet (1,000') of any protected use, or any lot within a previously platted residential subdivision where one (1) or more lots have one (1) or more structures, or within five hundred feet (500') of all other uses or features other than those listed in 33.22.3. A.La, and not within a floodplain, shall be screened from such uses, lots or features with an eight-foot (8') high or higher opaque decorative masonry- wall, if the use, lot or feature preexisted the commencement of gas well drilling. 35.22.5.A.3 d. Internal combustion engines with mufflers may be used in drilling operations. Only electric motors shall be used for the purpose of pumping gas wells. k Except in the case of an emergency, gas well flaring shall only be conducted during day-time hours. 1 Gas well fracturing may only be conducted during day-time hours 3522.5.A.4 a. An operator is allowed to construct, use, and operate such storage equipment and separation equipment as shown on the approved Gas Well Development Site Plat or Gas Well Development Site Plan, except that permanent storage equipment and separation equipment may not exceed eight (8) feet in height. b. The use of centralized tank batteries is permitted as shown on the applicable Gas Well Development Plat or Gas Well Development Site Plan. 35.22.5.A.6.p No gas well permit will be issued for any well where the center of the well at the surface of the Revised p ground is located within one thousand (1,000) feet of an existing fresh water well intended for domestic use. 35.22.5.A.8.b A Watershed Protection Permit containing an ESA assessment of the drill site shall be submitted to the DRC by the Watershed Protection Department and/or the F~'loodplam Administrator for all applicable ESA's prior to the approval of a Gas Well Development Plat. 35.22.5.A.8.c.iv Tree Mitigation funds shall be paid prior to final approval of a Gas Well Development Plat or Gas Well Development Site Plan in a Flood Fringe or other ESA. 35.22.5.A.8.f No more than ten (10) percent of the floodplain, within the limits of the Gas Well Development Plat or Gas Well Development Site Plan, may be filled. 35.22.5.C Noise Management Standards The following standards apply to gas well drilling and production in the Citv-limits. 1. prior to the issuance of a Gas Well Drilling and Operating Permit, the Operator shall establish and submit to the City, a continuous sevenh--two (72) hour pre-drilling Ambient Noise Level measured three hundred (300) feet from the boundaries of the gas well drilling or production site. The seventy--two (72) hour time span shall include at least one (1) twenty--four (24) hour reading during either a Saturday or Sunday. 2. No gas well drilling or production, re-drilled or any equipment shall be operated at any gas well drilling or production site within the City- in such a manner so as to create any noise that exceeds seventy- five decibels (73dB) when measured three hundred (300) feet from the boundaries of the gas well drilling or production site. 3. The three hundred-foot 300' distance shall be measured from the boundaries of the as well drilling or production site depicted on the Gas Well Development Plat or Gas Well Development Site Plan, in a straight line, without regard to intervening structures or objects. 4. If the ambient noise level that was established and submitted to the City- in accordance with 35.22.5.C.1 is higher than seventy- five decibels (75dB), the noise generated from the gas well drilling or production site mar not exceed the established ambient noise level by more than five decibels (5dB) during daytime hours and three decibels (3dB) during nighttime hours, except as provided by 35.22.5.C.5 below. -5. The following adjustments to the noise standards as set forth above may be permitted intermittently during daytime hours on1A-, except in the case of an emergency: Maximum Permitted Increase above 75d: or Maximum Duration established ambient, if ambient exceeds 75dB (minutes)* 10 dB minutes 15dB 1 minute 20dB Less than 1 minute C ~~e minutes during anyone hoary 6. Acoustical blankets, sound walls, mufflers or other alternative methods as approved by the City may be used to ensure noise limitation compliance. All soundproofing shall comply with accepted industry- standards and be subject to approval by the City-'s Fire Department. 7. The sound level meter used in conducting noise evaluations shall meet the American National Standard Institute's Standard for sound meters or an instrument and the associated recording and analyzing equipment which will provide equivalent data. 8. The noise level generated during gas drilling operations shall be continuously monitored to ensure compliance with the noise limitation standards established herein. The cost of such monitoring shall be borne by the Operator. The information from this monitoring shall be provided to the City- upon request, in a format that is acceptable to the City-. Failure to provide this information within 48 hours of the request is considered a violation of this subchapter. 9. If a complaint is received after gas well drilling operations by either the Operator or the Cit\-, the Operator shall immediately upon receipt of the complaint, continuously monitor the exterior noise level generated by the gas well drilling or production for a seventy--two (72) hour period and take the action necessary- to abate the violation, if a violation exits. 10. In the event of a violation of this subsection, the City- may immediately issue a citation to the Operator for the violation. 35.22.6 Gas Well Development Site Plan and Watershed Protection Permit A. Applicability 1. A Gas Well Development Site Plan shall be approved for any hind within the Cit\- limits before a Gas Well Permit may be issued or any gas well drilling or production activities may occur. Approval of a Gas Well Development Site Plan authorizes the processing of a complete application for a Gas Well Permit. 2. A Watershed Protection Permit shall be approved prior to approval of any Gas Well Development Site Plan, Gas Well Development Plat, or Gas Well Permit that includes land in any floodplain or ESA within the corporate limits or ETJ of the city-. Approval of a Watershed Protection Permit authorizes the processing of a complete application for a Gas Well Development Site Plan or Gas Well Development Plat, as the case may be, that includes land in a floodplain or ESA. B. Application Requirements - G Well Development Site Plan 1. An application for a Gas Well Development Site Plan shall not be determined to be complete or deemed complete until: a. any required Specific tTse Permit has been approved by the City- Council; b. a complete application for a Watershed Protection Permit, where required, has been filed with the City- pursuant to this subchapter. Approval of an application for a Gas Well Development Site Plan shall be conditioned on approval of an applicable Watershed protection Permit, and anv conditions imposed with approval of the Watershed Protection Permit shall be deemed incorporated into the conditions of approval for the Gas Well Development Site Plan. 3. Approval of a Gas Well Development Site Plan authorizes the holder of the approved Site Plan to apply for a Gas Well Permit. 3. An application for a Gas Well Development Site Plan, in addition to those items set forth in Subsection 1, shall: a. Clearly delineate the boundaries of the gas well drilling or production area with metes and bounds description, and list the exact acreage of the area. All gas well drilling and production activities shall be limited to this area. b. Identify all ingress and egress points. C. Show the location of all floodplains and ES As. d. Show the location of all freshwater well currently in use at the time of commencement of drilling activity within one thousand feet (1,000') of the gas well drilling and production area. e. Show the location of all structures with a protected use within one thousand feet (1,000') of the gas well drilling and production area; f. Identifo- and show proposed method of erosion and sediment control; g. Identify the location of proposed lease lines; h. Identifr the location of all proposed gas wells, mud pits, ponds, and mechanical equipment; i. Label distances between gas wells and property lines; j. Provide typical well site schematics showing layout during drilling and upon completion of drilling; k. Show location of all proposed underground pipelines. As-built drawings shall be filed with the City- (in a digital form as specified by the Cit\-, and as a condition of maintaining the annual operating permit). All pipelines proposed in public rights- of-way shall require a Right-of-Way tTse Agreement. The City- :Nlankger shall have the authority- to enter into a Right of Wav tTse Agreement; 1. Show the location of all pipelines and identify if pipelines connect with a Gas Distribution System; m. Identify the height, size, bulk and location of all structures, closed-loop systems, dehydrators, parking areas, securitt- cameras, lighting, tanks, tank batten-, drilling rigs, separators, compressors, perimeter walls, utilities, and all other features ()r objects contemplated within the boundaries of the gas well drilling or production area; n. Provide a Tree Protection Plan demonstrating compliance with the City's Tree Preservation Code; o. Provide a Signkge Plan, complying with all requirements of the City- for both the Drill Site and pipelines; N\lien applicable, a Screening, Fencing, and Landscape Plan, detaih 7 with all landscape and screening measures to be taken to adequately irrigate all landscaping including the water source for irrigation and the proposed efforts to replace dead or dying screening vegetation; and q. Any other information deemed necessary by the Director of Planning and Development to verifr compliance with these standards. C. Processing of Applications 1. An application for a Gas Well Development Site Plan shall be processed in the manner for an application for a gas well development plat, as provided in section 3.16.19 of the DDC. 3. A watershed protection permit shall be processed in accordance with the following: a. All applications for Watershed Protection Permits shall be filed with the Department, who shall immediately forward all applications to the DRC for review. Incomplete applications shall be returned to the applicant, in which case the City- shall provide a written explanation of the deficiencies if requested by the applicant The City- shall retain a processing fee determined by the City- Council. The City- may return any application as incomplete if there is a dispute pending before the Railroad Commission regarding the determination of the operator. No application shall be deemed accepted for filing until the application is complete. b. The DRC may attach such conditions to approval of a Watershed Protection Permit as are necessat to assure that the requirements of Subsection 35.33.5 are met. c. Each Watershed Protection Permit approved by the DRC shall: i. Identifothe none of each well subject to the permit; ii. Specify the date on which the Permit was issued; in. Incorporate by reference all applicable standards of approval; and V. Incorporate by reference all applicable conditions of approval. d. The applicant may appeal the denial or conditional approval of a Watershed Protection Permit on grounds pertaining to the standards in Subsection 35.22.5.A.6 and 35.22.5.A.8 to the Planning and Zoning Commission within ten (10) calendar days of the decision by the DRC. The Commission shall decide the appeal applying the standards made applicable to the permit by Subsection 35.22.5.A.6 and 35.22.5.A.8. e. The applicant may file a petition for review pursuant to Subsection 35.22.5.A.6 and 35.22.5.A.8 on grounds therein specified to the City- Council within ten (10) calendar days of the decision by the DRC. The Council shall decide the petition based upon the criteria in Subsection 35.22.5.A.6 and 35.22.5.A.8. D. Criteria for Approval 1. No gas well development site plan shall contain more than one (1) drilling or production site, and the area shall not be greater than five (5) acres in size. Drilling of a different gas well within the area subject to an approved Gas Well Development Site Plan shall require an amendment to the site plan application. All standards in section 35.33.5 shall be met. All conditions attached to prior approvals shall be incorporated in the approval of the Gas Well Development Site Plan. 3. The following standards apply to an application for a Watershed Protection Permit: a. For land inside the City, all conditions unposed by any applicable Specific tTse Permit or a Planned Development District for the land subject to the Watershed Protection Permit. b. Standards in Subsection 35.335(A)6 and 35.335(A)8. E. Expiration 1. A gas well development site plan shall automatically expire one (1) year from the date of approval, unless a gas well permit has been issued by the City- for the same site. a. A gas well development site plan shall not be extended. The applicant may submit a new Gas Well Development Site Plan application for review and approval in accordance with all applicable requirements of the DDC then in effect. b. If the Gas Well Development Site Plan expires, then all permits approved prior to or simultaneous with the site plan shall likewise expire on the sane date. 2. A Watershed Protection Permit shall expire with the expiration of the gas well development site plan and may not be extended prior to expiration. 35.22.7.F F. Applications for Gas Well Permits shall be in accordance with the following: 1. shall be in writing; 2. shall be on forms provided by the City; 3. shall be signed by the Operator; 4. shall include the application fee; -5. shall include a copy of the applicable Specific tTse Permit, Planned Development Zoning District, or Gas Well Development Site Plan; and; 6. shall include the information required by the Application Criteria Manual unless such information has been previously provided to the City. 35.22.9.D The security- instrument may be provided for an individual well, or for multiple wells on a single pad site. The amount of the security- shall be determined by the City- Engineer, with due regard to the costs and risks to be secured in subsection A, above, either on a per-application basis, or as administratively established and amended in the Application Criteria Manual, in the minimum amount of $ 0,000 for any single well, or $100,000 for multiple wells on the same pad site. 35.22.10 A. All applications for Gas Well Permits shall be filed with the Department who shall immediately forward all applications to the DRC for review. Incomplete applications shall be returned to the applicant, in which case the City- shall provide a written explanation of the deficiencies if requested by the applicant. The City- shall retain a processing fee determined by ordinance. The City- may return any application as incomplete if there is a dispute pending before the Railroad Commission regarding the determination of the operator. No Gas Well Permit shall be approved under this Section unless the property- owner or applicant first receives approval o£ 1. a Specific tTse Permit or Planned Development District, where required; 2. a Watershed Protection Permit, where applicable; and 3. a Site Plan. Denial or conditional approval of any such applications shall be grounds for denial or conditional approval of the Gas Well Permit. B. The DRC shall review each application within 1-5 days after acceptance for filing and shall determine: 1. whether the application includes all of the information required by this Subchapter; 2. whether the application is in conformance with the applicable Gas Well Development Site Plan, applicable Specific tTse Permit or Planned Development Zoning District; and 3. whether the application is in conformance with the insurance and security- requirements set forth in Subsection 3.22.8 and Subsection 3.22.9. C. The Fire Marshal shall review the application and the written report of the DRC and shall issue the Gas Well Permit after receiving the DRC report within 10 days unless he determines that the application is incomplete or that the application is not in conformance with the applicable Gas Well Development Site Plan, applicable Specific tTse Permit, Planned Development Zoning District. The Fire Marshal may employ a technical advisor under the Fire Code. 35.22.10.F.8 Incorporate, by reference, the conditions of the applicable Watershed Protection permit, Gas Well Development Site Plan, and applicable Specific tTse Permit or Planned Development Zoning District; 35.22.10.1 Expiration of Gas Well Permit 1. A Gas Well Permit is valid for six (6) months and shall automatically expire, unless gas well drilling activities have commenced prior to expiration. If gas drilling activities have commenced tinder a valid permit, the permit shall be renewed annually, subject to all applicable standards and the payment of all associated fees. 2. If a Gas Well Permit has been issued by the City- but gas drilling activities have not commenced prior to the expiration of the permit, the permit shall not be extended; however, the operator may reapply for a new permit, subject to all requirements of the DDC then in effect. 3. If gas well drilling has commenced prior to the expiration of the gas well permit, the permit shall continue, and operator shall be subject to an Annual Inspection and Administration fee. 4. If gas well drilling or production activities have commenced following issuance of a gas well permit before the expiration date, the approved site and drilling and production activities shall be subject to inspections by the City- to ensure compliance with terms and conditions of the permit and all applicable standards of the DDC. 35.22.12.B All residences within one thousand (1,000) feet of a well shall be notified a minimum of fort--eight hours prior to fracturing of a wellhead. 35.22.13 A. An operator may submit an application to the Fire Marshal to amend existing gas well permits to: 1. commence drilling from a new drill site that is not shown on (or incorporated by reference as part ot) the existing permit; 2. to relocate a drill site or operation site that is shown on (or incorporated by reference as part of) the exis ting permit; or 3. to otherwise amend the existing permit, for land subject to the same approved Gas Well Development Site Plan. 35.22.13.B.4 4. Such additional information as is reasonably required by the Fire Marshal to demonstrate compliance with the applicable Development Site Plan, applicable Specific tTse Permit or Planned Development Zoning District; and 35.22.13 D. If the activities proposed by the amendment are not materially different from the activities covered by the existing Gas Well Permit or Gas Well Development Site Plan, and if the proposed activities are in conformance with the applicable Watershed Protection Permit, Gas Well Development Site Plan, applicable Specific tTse Permit or Planned Development Zoning District, then the Fire Marshal shall approve the amendment within 10 days after the application is filed. E. If the activities proposed by the amendment are materially different from the activities covered by the existing gas well permit, and if the proposed activities are in conformance with the applicable Watershed Protection Permit, Gas Well Development Plat, Gas Well Development Site Plan, applicable Specific tTse Permit or Planned Development Zoning District, then the Fire Marshal shall approve the amendment within 30 days after the application is filed. If, however, the activities proposed by the amendment are materially different or, in the judgment of the Fire Marshal, might create a risk of imminent destruction of property- or injun- to persons that was not associated with the activities covered by the existing permit or that was not otherwise taken into consideration by the existing permit, the Fire Marshal may require the amendment to be processed as a new gas well permit application. 35.22.15.B The Fire Marshal or the oil and gas inspector shall have the authority- to enter and inspect any premises covered by the provisions of this subchapter, to determine compliance with its provisions, and all applicable laws, rules, regulations, standards, or directives of any local state or federal 10 authority-. 35.22.17.A The Fire Marshal and the oil and gas inspector are authorized and directed to enforce this Subchapter and the provisions of any Gas Well Permit. N-henever necessary to enforce any provision of this Subchapter or a Gas Well Permit, or whenever there is reasonable cause to believe there has been a violation of this Subchapter or a Gas Well Permit, the Fire Marshal or oil and gas inspector, mar enter upon any property- covered by this Subchapter or a Gas Well Permit at any reasonable time to inspect or perform any duty- imposed by this Subchapter. If entry- is refused, the City- shall have recourse to even-y- remedy provided by law and equity- to gain entry. DDC 35.23 Improvement (Public or Private). Any physical man-made addition which becomes put of, is placed upon, or is affixed to any real property-, or any put of such addition, including but not limited to, any building, structure, bridge, work of art, puking facility-, public facilit\-, fence, gate, wall, streets and all related appurtenances, utilities, pedestrianways, bikeways, equestrian trails, landscaping or irrigation, whether involving the subdivision of land or not. Project. A specific development on an identifiable parcel of land. Project improvements. Site improvements and facilities that are planned and designed to provide for a particular development project and that are necessan-y for the use and convenience of the occupants or users of the project. Project site. That portion of any lot, parcel, tract, or combination thereof that encompasses all phases of the total project proposal. di O r nance _ 2009 098 - - , Section 2.4 «rhi Ordinance Add the following fey schedule to Ordinance 20005-237: 20005-237 A i i F ct v ty ee The following fees shall be charged for the first two (2) reviews Gas cll StTP Rcv iew $12,500 Gas cll Development Site Plan $7,00 Gas Well Development Plat Review ~,000 Gas Well Plat/Site Plan Amendment Each additional two reviews $-5! ~1 i0 The following fees shall be charged annually, per gas well Annual Inspection and Administration Pee (within (-ity-) $3,200 Annual Inspection and Administration Pee (within ETI) $1,800 The following fees shall be charged per each application I -,,uisfer of uper,irion $7oo W atershed Protection Permit $3,000 Gas Well Permit $-5-50 Fracture /Drill Pond $~-50 Compressor Facility- Permit $~-50 11 SALegaROur Documents\Ordinances1101DCA10-0003.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING CERTAIN SECTIONS WITHIN SUBCHAPTERS 3, 16, 22 AND 23 OF THE DENTON DEVELOPMENT CODE, RELATING TO GAS WELL DRILLING AND PRODUCTION, DEFINITIONS, AND PROCEDURES; ADOPTING A NEW PLANNING AND DEVELOPMENT REVIEW FEE SCHEDULE, PERTAINING TO GAS WELL DRILLING AND PRODUCTION WITHIN THE CITY LIMITS AND THE EXTRATERRITORIAL JURISDICTION; AND PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, SEVERABILITY AND AN EFFECTIVE DATE. (DCA10-0003). WHEREAS, pursuant to Ordinance No.2002-040, the City Council of the City of Denton, Texas adopted the Denton Development Code (the "Development Code"); and WHEREAS, the authority of a home rule municipality to regulate the exploration and production of natural gas within its city limits and extraterritorial jurisdiction as provided herein, is legislatively recognized, inter alia, at §92.007 of the Texas Natural Resources. Code; §§54.012, 212.003, 212.044 and 217.042 of the Texas Local Government Code; and numerous other legislative and Constitutional provisions of the State of Texas; and WHEREAS, the City has codified its regulations governing gas well drilling and production within the City and extraterritorial jurisdiction in Subchapters 16 and 22 of the Denton Development Code, and applicable procedures and definitions in Subchapters 3 and 23; and WHEREAS, it has come to the attention of the City Council that the City's current standards may not fully implement the City's dual goals of allowing gas well drilling and production, and at the same time protecting the public's health, safety and general welfare; and WHEREAS, a multitude of gas well permit applications have been filed recently with the apparent goal of vesting against additional health and safety standards that may be promulgated by the City; and WHEREAS, the City has authority to impose a moratorium on authorizations for gas well drilling and production pending a thorough investigation into the need for additional procedural and substantive safeguards; and WHEREAS, in lieu of a moratorium on the issuance of gas well permits and other applications authorizing gas well drilling and production, the City Council finds that it is necessary in order to promote the health, safety and general welfare of the community to promulgate a set of procedural and substantive standards pending the City's complete study of the impacts of gas well drilling and production in the City and its ETJ; and WHEREAS, a detailed cost 'of services analysis and comparison with survey cities, related to gas well drilling and production, revealed that Denton's current fee structure is grossly inadequate to cover the cost of proposed services, and far below the fees imposed by neighboring cities for similar services; and further that the proposed changes to the Planning Fee Schedule are Page 1 S:TegaMur Documents\Ordinances110\DCAI0-0003.doe reasonable, and do not exceed the reasonable cost to the City in providing the review of the applicable development applications; and WHEREAS, after providing notice and after conducting a public hearing as required by law, the City Council finds that the subject changes to the Development Code and fees are consistent with Comprehensive Plan and are in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference and found to be true. SECTION 2. Subchapters 3, 16, 22 and 23 are amended to incorporate the specific changes, as identified by section or subsection in Exhibit "1", and such changed sections or subsections shall hereinafter read verbatim as set forth in Exhibit "l which is attached and incorporated fully herein by reference; all provisions not specifically changed herein shall remain as written. SECTION 3. The Planning Fee Schedule, previously established and amended by Ordinances 2005-237 and 2009-098, is hereby amended by substituting, to the limited extent of any conflict, the revised fee schedule pertaining to Gas Well Drilling and Production, attached hereto and incorporated herein on the final page of Exhibit "l"; all fees not amended therein shall remain in place, without repeal or supersedure; and the fees set forth in the Planning Fee Schedule, as modified herein, are authorized to be imposed. SECTION 4. All ordinances in conflict herewith, are amended and superseded to the limited extent of such conflict, and all remaining sections and provisions of such ordinances, not in direct conflict herewith, are hereby made cumulative. SECTION 5. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 6. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 7. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2010. MARK A. BURROUGHS, MAYOR Page 2 S:U.egal\Our DocumentslOrdinances110IDCA10-0003.doc ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: Page 3 APPROVED AS TO LEGAL FORM: Exhibit 1 Citation Proposed Ordinance 35.3.6 A. The following actions shall follow the Board of Adjustment Procedure: 1. Consider an application for a Variance from the zoning regulations. 2. Consider an application for a Variance from the sign regulations. 3. Consider an application for a Variance from gas well drilling and production regulations, within the City- limits. 4. Consider an application to change, reestablish or terminate a Nonconforming tTse. -5. Consider an appeal of an Administrative Decision. 35.3.6.B.2 The Zoning Board of Adjustment may grant a variance from the front card, side card, rear card, lot width, lot depth, coverage, minimum setback standards, landscaping regulations, or from the minimiun separation regrurement for gas well drilling and production, where literal enforcement of the regulations will result in an unnecessary hardship and where the variance is necessary to develop a specific parcel of land, which because of site's shape, size or topography differs from other parcels in the same district, and that it cannot be developed in a manner commensurate with the development allowed for the other parcels. A variance shall not be granted to relieve a self-created or personal hardship or to relieve a purely financial hardship. In granting any variance, the board may designate conditions, which, in its opinion, will secure substantially the purpose and intent of the Development Code. A variance shall only be granted upon a finding that: 35.16.19.A Any person who proposes gas drilling or production on a tract of land located within the City's Extraterritorial jurisdiction, shall submit a Gas Well Development Plat for review and approval by the City-. If any portion of the proposed area to be platted lies within a floodplain, an ESA or within one thousand, two hundred feet (1,200') of the flood pool elevation of Lake Ray Roberts or Lake Lewisville, a watershed protection permit application for such area(s) shall be submitted with the development plat application, and shall be decided before any decision on the plat. 35.16.19.D.8 c. Show the location and use of all structures within one thousand feet (1,000') of the wellhead. j. Clearly delineate the boundaries of the gas well drilling or production area with metes and bounds. All gas well drilling and production activities shall be limited to this area. k. A Gas Well Development Plat shall only contain one (1) drilling or production area, and the area shall not be greater than five (5) acres. 35.16.19.E 1. If gas well drilling activities have not commenced within one (1) year from the date of approval, the Gas Well Development Plat shall expire. 2. A Gas Well Development Plat may not be extended. 3. If the Gas Well Development Plat expires, then so too shall all associated Watershed Protection Permits. 4. tTpon expiration of a Gas Well Development Plat, the applicant may reapply for a new Gas Well Development Plat, subject to all requirements of the DDC, as amended. If a Watershed Protection Permit is required in conjunction with the Gas Well Development Plat, the applicant must also apply for a new Watershed Protection Permit, subject to all requirements of the DDC, as amended. -5. If gas well drilling or production has commenced, the gas well drilling and production area shall be subject to inspections by the Cit\-, and shall also be subject to an Annual Inspection and Administration Pee. DDC 35.22.2 Operator. The person listed on the Railroad Commission Form N\--tor Form P-4 for a well as the person that is, has applied for, or will be actually in charge and in control of drilling, maintaining, operating, pumping, or controlling any well or pipeline including without limitation, a unit operator. Ambient Noise Level. An all-encompassing noise level associated with a given environment. A composite of sounds from all sources (excluding the noise in question) at the location and approximate time at which a comparison with the noise in question is to be made. In this context, the ambient noise level constitutes the normal or existing level of environmental noise at a given location. The Ambient noise Level is established by recording sounds from all sources (excluding the noise in question) over a continuous seventy--two (73) hour period at the location prior to drilling. The seventy--two (73) hour time span shall include at least one twenty--four (34) hour reading during either a Saturday or Sundae. Blowout Preventer. a mechanical, hydraulic, pneumatic or other device or combination of such devices, secured to the top of a well casing, including valves, fittings and control mechanisms connected therewith, which can be closed around the drill pipe, or other tubular goods which completely closes the top of the casing and are designed to prevent blowouts. Commencement of Drilling Activities. The reflection of either "spud Well" or "Nipple Up" the Blow Out Protectors (130P) by the drilling contractor on the LSDC API Daily Drilling Report Form maintained by the Operator's tool pusher on the pad site. Completion of drilling, re-drilling and re-working. The date the work is completed for drilling, re-drilling, or re-working, and the crew is released by completing its work or contracted by its employer. Daytime. The period from 7:00 am to 7:00 pm., Monday through Friday-; and from 8:00 am to 5:00 pm., Saturdays and Sundays. Drilling and Production Area (AKA Gas II'ell Park, Gas II'ell Pad Site). The area dedicated to all gas well drilling and production activities, including the drill site, all structures, closed-loop systems, dehydrators, parking areas, security- cameras, lighting, tanks, tank batten-, drilling rigs, separators, compressors, perimeter walls, utilities, and all other features or objects contemplated for use during and after gas well drilling or production. Flowback. The process of recovering fluids or residual from a completed or fractured well. Gas Production. The phase that occurs after successful exploration, drilling and development involving operations including but not limited to, gas wells, tanks, dehydrators, separators, mud pits, ponds, tank batteries or associated mechanical equipment, and during which hydrocarbons are extracted from the gas field, excluding those operations and facilities as defined and regulated by the Pipeline Safet\_ Act of 1994, 49 US(-_. 60101 - 60137. Habitable Structure. Structures suitable for human habitation or occupation for which a Certificate of Occupancy or Final Inspection Certificate is required, including but not limited to single or multi- family residences, accessory- guess houses, hotels, condominium buildings, public buildings, and buildings used for commercial or industrial purposes. A habitable structure shall not include non- habitable accessory buildings garages and sheds. Lift Compressor. A device that raises the pressure of a compressible fluid (gas) in order to lift gas from the well. Line Compressor. A device that raises the pressure of a compressible fluid (gas) in order for the gas to be transported through a pipeline. Nighttime. The period commencing at 7:00 pm and ending at 7:00 am., Monday through Friday and from 5:00 pm to 8:00 am., Saturdays and Sundays. Nipple Up. The process of assembling well-control or pressure-control equipment on the wellhead. Permit, Gas Well Any written license grunted by the Cit\- of Denton for the exploration, drilling, development, and production of natural gas, issued pursuant to rules and regulations of this Subsection. Protected Use. Any residence, church, public park, public libran-, hospital, or school. Residence. A home, abode, or place where an individual is actually living at a specific point in time. A structure or part of a structure containing dwelling units or rooming units, including single-family or two-family houses, multi-family dwellings, boarding or rooming houses, elderly living facilities, apartments, or dormitories. Workover Operation. Fork performed on a well after its completion in an effort to secure production where there has been none, to restore production that has ceased, or to increase production. 35.22. Zoning District Classifications for Gas Well Drilling and Production A. The drilling and production of gas within the corporate limits of the City- shall be permitted by right within the Rural Residential (RD-5), Rural Commercial (R(--), Neighborhood Residential 1 (NR-1), Neighborhood Residential 2 (NR-2), Regional Center Commercial Neighborhood (RC(--- N), Regional Center Commercial Downtown (RC(---D), Employment Center Commercial (E(--- C), Employment Center Industrial (E(---I), Industrial Center Employment (I(---E) and Industrial Center General (IC-G) Zoning Districts, except as provided in subsection B, and subject to compliance with the requirements of this subchapter. B. The drilling and production of gas within the corporate limits of the City- in all other zoning districts shall be permitted only by Specific tTse Permit pursuant to subchapter 3-5.6. Notwithstanding the provisions of Subsection A, approval of a Specific tTse Permit also shall be required for gas well drilling and production on any land located within the 100-rear floodway or within one thousand, two hundred feet (1,200') of the flood pool elevation of Lake Ray Roberts or Lake Lewisville. 1. An application for a Specific tTse Permit for the drilling and production of a gas well shall be filed by the person haying legal authority-. That person is presumed to be the record owner, mineral owner, or the duly authorized agent of either the record owner or the mineral owner. The Chairman of the Development Review Committee (DR(--) may require an applicant to submit information of authority- to file an application. 2. The Chairman of the DRC has the authority- to establish requirements for applications in the Application Criteria Manual. No application shall be accepted for filing until it is complete and the fee established by the City- Council of the City- of Denton has been paid. Incomplete applications shall be returned less a fee for processing determined by the Director of Planning and Development. 3. Approval of a Specific tTse Permit shall be conditioned on compliance with the requirements of this Subchapter. 35.22.4 35.22.4 Required Authorization for Gas Well Drilling and Production in City Limits A. No gas well drilling or production activities may be commenced within the City- limits until the following authorizations have been obtained, in the following sequence: 1. Approval of a Specific tTse Permit, where required by section 3.22.3.8; 2. Approval of a Watershed Protection Permit, where location of any gas well drilling or production activities is proposed on land in the flood fringe or in an ESA, subject to the application requirements and standards of section 3-5.22.-5.A.8; 3. Approval of a Gas Well Development Site Plan, subject to the application requirements and standards of section 3.22.6; and 4. Approval of a Gas Well Permit, subject to the application requirements and standards of Section 3.22.7. B. An application for any authorization for gas well drilling and production listed in Subsection A may be submitted simultaneously with any other listed application, but the applications must be decided in the numerical order listed. No subsequent application shall be determined to be complete and hereby is deemed to be incomplete until all required prior applications have been approved, and no completeness determination shall be made until such prior applications have been decided. C. Approved applications for gas well drilling and production shall expire under the following circumstances: 1. A Specific tTse Permit shall expire according to its terms; 2. A Watershed Protection Permit shall expire with the expiration of a Gas Well Development Site Plan. 3. A Gas Well Development Site Plan shall expire unless a complete application for a gas well permit has been filed within one (1) year of the date of approval of the site plan. 4. A Gas Well Permit shall expire if gas well drilling activities have not commenced within six (6) months of the date of approval of the Gas Well Permit. 5. The expiration of any subsequent application shall result in the expiration of all prior approved applications. D. Approved applications for gas well drilling and production may not be extended prior to expiration. Following expiration of an approved application for gas well drilling and production, a new application must be submitted, which shall be subject to all DDC standards and procedures then in effect. E. Each authorization identified in this Section shall be construed as an exercise of the City's zoning powers, pursuant to City Charter, Tex. Loc. Gov't Code Chapter 211 and the provisions of subchapter 353 of the Denton Development Code. F. The authorizations required by this Subchapter are in addition to, and not in lieu of, any permits that may be required by any other provision of the Denton City- code or by any other government agency. 35.22.5 A. The drilling and production of gas wells within the City limits or the City's ETJ shall include the following standards. 1. Separation standards. The following requirements apply only within city- limits. a. No gas well drilling or production area may be located within one thousand feet (1,000') of any protected use, or freshwater well currently in use at the time a complete application for a Gas Well Development Site Plan is filed, or within one thousand feet (1,000') of any lot within a previously platted residential subdivision where one (1) or more lots have one (1) or more structures. b. Except where more stringent separation distances are specified, the minimum separation distance between gas drilling or production, and all other uses or features other than those listed in 35.22.5.A. 1.a, shall be five hundred feet (500'). c. The minimum separation requirement established in 35.22.5. A.1.a and b above may be reduced via the granting of a variance by the Zoning Board of Adjustment. Alternatively, all the property- owners of the affected uses, all owners of property- with a freshwater well currently in use at the time a complete application for a gas well development site plan is filed, and all owner of lots in a previously platted residential subdivision where one (1) or more lots have one (1) or more structures within the reduced separation area, may consent to the reduction via a notarized waiver, if the notarized waiver is attached to the permit application, in which case no variance shall be required. Except that the minimum separation distance may not be reduced to less than five hundred feet (500'). d. Separation distances shall be measured from the boundary of the drilling and production areas identified on the Gas Well Development Plat or Gas Well Development Site Plan, in a straight line, without regard to intervening structures or objects, to the closest exterior point of any structure occupied by a Protected tTse, or freshwater well currently in use at the time a complete application for a gas well development site plan is filed, or the closest lot line of any undeveloped lot within a previously platted residential subdivision where one (1) or more lots have one (1) or more structures. 35.22.5.A.2 e. Permanent weatherproof signs reading "DANGER NO SMOKING ALLOWED" in a minimum of four inch (4") lettering shall be posted at the entrance of each drill site and operation site. The sign shall include the development or operating company that is currently responsible for the gas well plat or site plan, the Railroad Commission Well Identification Number and the American Petroleum Institute nrunber for the well, the phone niunber for emergency services (911), the number for the operator, and any other well designation required by the Railroad Commission in two inch (2'~ lettering. n. All well heads, storage tanks, separation facilities or other mechanical equipment located within one thousand feet (1,000') of any protected use, or any lot within a previously platted residential subdivision where one (1) or more lots have one (1) or more structures, or within five hundred feet (500') of all other uses or features other than those listed in 33.22.3. A.La, and not within a floodplain, shall be screened from such uses, lots or features with an eight-foot (8') high or higher opaque decorative masonry- wall, if the use, lot or feature preexisted the commencement of gas well drilling. 35.22.5.A.3 d. Internal combustion engines with mufflers may be used in drilling operations. Only electric motors shall be used for the purpose of pumping gas wells. k Except in the case of an emergency, gas well flaring shall only be conducted during day-time hours. 1 Gas well fracturing may only be conducted during day-time hours 3522.5.A.4 a. An operator is allowed to construct, use, and operate such storage equipment and separation equipment as shown on the approved Gas Well Development Site Plat or Gas Well Development Site Plan, except that permanent storage equipment and separation equipment may not exceed eight (8) feet in height. b. The use of centralized tank batteries is permitted as shown on the applicable Gas Well Development Plat or Gas Well Development Site Plan. 35.22.5.A.6.p No gas well permit will be issued for any well where the center of the well at the surface of the Revised p ground is located within one thousand (1,000) feet of an existing fresh water well intended for domestic use. 35.22.5.A.8.b A Watershed Protection Permit containing an ESA assessment of the drill site shall be submitted to the DRC by the Watershed Protection Department and/or the F~'loodplam Administrator for all applicable ESA's prior to the approval of a Gas Well Development Plat. 35.22.5.A.8.c.iv Tree Mitigation funds shall be paid prior to final approval of a Gas Well Development Plat or Gas Well Development Site Plan in a Flood Fringe or other ESA. 35.22.5.A.8.f No more than ten (10) percent of the floodplain, within the limits of the Gas Well Development Plat or Gas Well Development Site Plan, may be filled. 35.22.5.C Noise Management Standards The following standards apply to gas well drilling and production in the Citv-limits. 1. prior to the issuance of a Gas Well Drilling and Operating Permit, the Operator shall establish and submit to the City, a continuous sevenh--two (72) hour pre-drilling Ambient Noise Level measured three hundred (300) feet from the boundaries of the gas well drilling or production site. The seventy--two (72) hour time span shall include at least one (1) twenty--four (24) hour reading during either a Saturday or Sunday. 2. No gas well drilling or production, re-drilled or any equipment shall be operated at any gas well drilling or production site within the City- in such a manner so as to create any noise that exceeds seventy- five decibels (73dB) when measured three hundred (300) feet from the boundaries of the gas well drilling or production site. 3. The three hundred-foot 300' distance shall be measured from the boundaries of the as well drilling or production site depicted on the Gas Well Development Plat or Gas Well Development Site Plan, in a straight line, without regard to intervening structures or objects. 4. If the ambient noise level that was established and submitted to the City- in accordance with 35.22.5.C.1 is higher than seventy- five decibels (75dB), the noise generated from the gas well drilling or production site mar not exceed the established ambient noise level by more than five decibels (5dB) during daytime hours and three decibels (3dB) during nighttime hours, except as provided by 35.22.5.C.5 below. -5. The following adjustments to the noise standards as set forth above may be permitted intermittently during daytime hours on1A-, except in the case of an emergency: Maximum Permitted Increase above 75d: or Maximum Duration established ambient, if ambient exceeds 75dB (minutes)* 10 dB minutes 15dB 1 minute 20dB Less than 1 minute C ~~e minutes during anyone hoary 6. Acoustical blankets, sound walls, mufflers or other alternative methods as approved by the City may be used to ensure noise limitation compliance. All soundproofing shall comply with accepted industry- standards and be subject to approval by the City-'s Fire Department. 7. The sound level meter used in conducting noise evaluations shall meet the American National Standard Institute's Standard for sound meters or an instrument and the associated recording and analyzing equipment which will provide equivalent data. 8. The noise level generated during gas drilling operations shall be continuously monitored to ensure compliance with the noise limitation standards established herein. The cost of such monitoring shall be borne by the Operator. The information from this monitoring shall be provided to the City- upon request, in a format that is acceptable to the City-. Failure to provide this information within 48 hours of the request is considered a violation of this subchapter. 9. If a complaint is received after gas well drilling operations by either the Operator or the Cit\-, the Operator shall immediately upon receipt of the complaint, continuously monitor the exterior noise level generated by the gas well drilling or production for a seventy--two (72) hour period and take the action necessary- to abate the violation, if a violation exits. 10. In the event of a violation of this subsection, the City- may immediately issue a citation to the Operator for the violation. 35.22.6 Gas Well Development Site Plan and Watershed Protection Permit A. Applicability 1. A Gas Well Development Site Plan shall be approved for any hind within the Cit\- limits before a Gas Well Permit may be issued or any gas well drilling or production activities may occur. Approval of a Gas Well Development Site Plan authorizes the processing of a complete application for a Gas Well Permit. 2. A Watershed Protection Permit shall be approved prior to approval of any Gas Well Development Site Plan, Gas Well Development Plat, or Gas Well Permit that includes land in any floodplain or ESA within the corporate limits or ETJ of the city-. Approval of a Watershed Protection Permit authorizes the processing of a complete application for a Gas Well Development Site Plan or Gas Well Development Plat, as the case may be, that includes land in a floodplain or ESA. B. Application Requirements - G Well Development Site Plan 1. An application for a Gas Well Development Site Plan shall not be determined to be complete or deemed complete until: a. any required Specific tTse Permit has been approved by the City- Council; b. a complete application for a Watershed Protection Permit, where required, has been filed with the City- pursuant to this subchapter. Approval of an application for a Gas Well Development Site Plan shall be conditioned on approval of an applicable Watershed protection Permit, and anv conditions imposed with approval of the Watershed Protection Permit shall be deemed incorporated into the conditions of approval for the Gas Well Development Site Plan. 3. Approval of a Gas Well Development Site Plan authorizes the holder of the approved Site Plan to apply for a Gas Well Permit. 3. An application for a Gas Well Development Site Plan, in addition to those items set forth in Subsection 1, shall: a. Clearly delineate the boundaries of the gas well drilling or production area with metes and bounds description, and list the exact acreage of the area. All gas well drilling and production activities shall be limited to this area. b. Identify all ingress and egress points. C. Show the location of all floodplains and ES As. d. Show the location of all freshwater well currently in use at the time of commencement of drilling activity within one thousand feet (1,000') of the gas well drilling and production area. e. Show the location of all structures with a protected use within one thousand feet (1,000') of the gas well drilling and production area; f. Identifo- and show proposed method of erosion and sediment control; g. Identify the location of proposed lease lines; h. Identifr the location of all proposed gas wells, mud pits, ponds, and mechanical equipment; i. Label distances between gas wells and property lines; j. Provide typical well site schematics showing layout during drilling and upon completion of drilling; k. Show location of all proposed underground pipelines. As-built drawings shall be filed with the City- (in a digital form as specified by the Cit\-, and as a condition of maintaining the annual operating permit). All pipelines proposed in public rights- of-way shall require a Right-of-Way tTse Agreement. The City- :Nlankger shall have the authority- to enter into a Right of Wav tTse Agreement; 1. Show the location of all pipelines and identify if pipelines connect with a Gas Distribution System; m. Identify the height, size, bulk and location of all structures, closed-loop systems, dehydrators, parking areas, securitt- cameras, lighting, tanks, tank batten-, drilling rigs, separators, compressors, perimeter walls, utilities, and all other features ()r objects contemplated within the boundaries of the gas well drilling or production area; n. Provide a Tree Protection Plan demonstrating compliance with the City's Tree Preservation Code; o. Provide a Signkge Plan, complying with all requirements of the City- for both the Drill Site and pipelines; N\lien applicable, a Screening, Fencing, and Landscape Plan, detaih 7 with all landscape and screening measures to be taken to adequately irrigate all landscaping including the water source for irrigation and the proposed efforts to replace dead or dying screening vegetation; and q. Any other information deemed necessary by the Director of Planning and Development to verifr compliance with these standards. C. Processing of Applications 1. An application for a Gas Well Development Site Plan shall be processed in the manner for an application for a gas well development plat, as provided in section 3.16.19 of the DDC. 3. A watershed protection permit shall be processed in accordance with the following: a. All applications for Watershed Protection Permits shall be filed with the Department, who shall immediately forward all applications to the DRC for review. Incomplete applications shall be returned to the applicant, in which case the City- shall provide a written explanation of the deficiencies if requested by the applicant The City- shall retain a processing fee determined by the City- Council. The City- may return any application as incomplete if there is a dispute pending before the Railroad Commission regarding the determination of the operator. No application shall be deemed accepted for filing until the application is complete. b. The DRC may attach such conditions to approval of a Watershed Protection Permit as are necessat to assure that the requirements of Subsection 35.33.5 are met. c. Each Watershed Protection Permit approved by the DRC shall: i. Identifothe none of each well subject to the permit; ii. Specify the date on which the Permit was issued; in. Incorporate by reference all applicable standards of approval; and V. Incorporate by reference all applicable conditions of approval. d. The applicant may appeal the denial or conditional approval of a Watershed Protection Permit on grounds pertaining to the standards in Subsection 35.22.5.A.6 and 35.22.5.A.8 to the Planning and Zoning Commission within ten (10) calendar days of the decision by the DRC. The Commission shall decide the appeal applying the standards made applicable to the permit by Subsection 35.22.5.A.6 and 35.22.5.A.8. e. The applicant may file a petition for review pursuant to Subsection 35.22.5.A.6 and 35.22.5.A.8 on grounds therein specified to the City- Council within ten (10) calendar days of the decision by the DRC. The Council shall decide the petition based upon the criteria in Subsection 35.22.5.A.6 and 35.22.5.A.8. D. Criteria for Approval 1. No gas well development site plan shall contain more than one (1) drilling or production site, and the area shall not be greater than five (5) acres in size. Drilling of a different gas well within the area subject to an approved Gas Well Development Site Plan shall require an amendment to the site plan application. All standards in section 35.33.5 shall be met. All conditions attached to prior approvals shall be incorporated in the approval of the Gas Well Development Site Plan. 3. The following standards apply to an application for a Watershed Protection Permit: a. For land inside the City, all conditions unposed by any applicable Specific tTse Permit or a Planned Development District for the land subject to the Watershed Protection Permit. b. Standards in Subsection 35.335(A)6 and 35.335(A)8. E. Expiration 1. A gas well development site plan shall automatically expire one (1) year from the date of approval, unless a gas well permit has been issued by the City- for the same site. a. A gas well development site plan shall not be extended. The applicant may submit a new Gas Well Development Site Plan application for review and approval in accordance with all applicable requirements of the DDC then in effect. b. If the Gas Well Development Site Plan expires, then all permits approved prior to or simultaneous with the site plan shall likewise expire on the sane date. 2. A Watershed Protection Permit shall expire with the expiration of the gas well development site plan and may not be extended prior to expiration. 35.22.7.F F. Applications for Gas Well Permits shall be in accordance with the following: 1. shall be in writing; 2. shall be on forms provided by the City; 3. shall be signed by the Operator; 4. shall include the application fee; -5. shall include a copy of the applicable Specific tTse Permit, Planned Development Zoning District, or Gas Well Development Site Plan; and; 6. shall include the information required by the Application Criteria Manual unless such information has been previously provided to the City. 35.22.9.D The security- instrument may be provided for an individual well, or for multiple wells on a single pad site. The amount of the security- shall be determined by the City- Engineer, with due regard to the costs and risks to be secured in subsection A, above, either on a per-application basis, or as administratively established and amended in the Application Criteria Manual, in the minimum amount of $ 0,000 for any single well, or $100,000 for multiple wells on the same pad site. 35.22.10 A. All applications for Gas Well Permits shall be filed with the Department who shall immediately forward all applications to the DRC for review. Incomplete applications shall be returned to the applicant, in which case the City- shall provide a written explanation of the deficiencies if requested by the applicant. The City- shall retain a processing fee determined by ordinance. The City- may return any application as incomplete if there is a dispute pending before the Railroad Commission regarding the determination of the operator. No Gas Well Permit shall be approved under this Section unless the property- owner or applicant first receives approval o£ 1. a Specific tTse Permit or Planned Development District, where required; 2. a Watershed Protection Permit, where applicable; and 3. a Site Plan. Denial or conditional approval of any such applications shall be grounds for denial or conditional approval of the Gas Well Permit. B. The DRC shall review each application within 1-5 days after acceptance for filing and shall determine: 1. whether the application includes all of the information required by this Subchapter; 2. whether the application is in conformance with the applicable Gas Well Development Site Plan, applicable Specific tTse Permit or Planned Development Zoning District; and 3. whether the application is in conformance with the insurance and security- requirements set forth in Subsection 3.22.8 and Subsection 3.22.9. C. The Fire Marshal shall review the application and the written report of the DRC and shall issue the Gas Well Permit after receiving the DRC report within 10 days unless he determines that the application is incomplete or that the application is not in conformance with the applicable Gas Well Development Site Plan, applicable Specific tTse Permit, Planned Development Zoning District. The Fire Marshal may employ a technical advisor under the Fire Code. 35.22.10.F.8 Incorporate, by reference, the conditions of the applicable Watershed Protection permit, Gas Well Development Site Plan, and applicable Specific tTse Permit or Planned Development Zoning District; 35.22.10.1 Expiration of Gas Well Permit 1. A Gas Well Permit is valid for six (6) months and shall automatically expire, unless gas well drilling activities have commenced prior to expiration. If gas drilling activities have commenced tinder a valid permit, the permit shall be renewed annually, subject to all applicable standards and the payment of all associated fees. 2. If a Gas Well Permit has been issued by the City- but gas drilling activities have not commenced prior to the expiration of the permit, the permit shall not be extended; however, the operator may reapply for a new permit, subject to all requirements of the DDC then in effect. 3. If gas well drilling has commenced prior to the expiration of the gas well permit, the permit shall continue, and operator shall be subject to an Annual Inspection and Administration fee. 4. If gas well drilling or production activities have commenced following issuance of a gas well permit before the expiration date, the approved site and drilling and production activities shall be subject to inspections by the City- to ensure compliance with terms and conditions of the permit and all applicable standards of the DDC. 35.22.12.B All residences within one thousand (1,000) feet of a well shall be notified a minimum of fort--eight hours prior to fracturing of a wellhead. 35.22.13 A. An operator may submit an application to the Fire Marshal to amend existing gas well permits to: 1. commence drilling from a new drill site that is not shown on (or incorporated by reference as part ot) the existing permit; 2. to relocate a drill site or operation site that is shown on (or incorporated by reference as part of) the exis ting permit; or 3. to otherwise amend the existing permit, for land subject to the same approved Gas Well Development Site Plan. 35.22.13.B.4 4. Such additional information as is reasonably required by the Fire Marshal to demonstrate compliance with the applicable Development Site Plan, applicable Specific tTse Permit or Planned Development Zoning District; and 35.22.13 D. If the activities proposed by the amendment are not materially different from the activities covered by the existing Gas Well Permit or Gas Well Development Site Plan, and if the proposed activities are in conformance with the applicable Watershed Protection Permit, Gas Well Development Site Plan, applicable Specific tTse Permit or Planned Development Zoning District, then the Fire Marshal shall approve the amendment within 10 days after the application is filed. E. If the activities proposed by the amendment are materially different from the activities covered by the existing gas well permit, and if the proposed activities are in conformance with the applicable Watershed Protection Permit, Gas Well Development Plat, Gas Well Development Site Plan, applicable Specific tTse Permit or Planned Development Zoning District, then the Fire Marshal shall approve the amendment within 30 days after the application is filed. If, however, the activities proposed by the amendment are materially different or, in the judgment of the Fire Marshal, might create a risk of imminent destruction of property- or injun- to persons that was not associated with the activities covered by the existing permit or that was not otherwise taken into consideration by the existing permit, the Fire Marshal may require the amendment to be processed as a new gas well permit application. 35.22.15.B The Fire Marshal or the oil and gas inspector shall have the authority- to enter and inspect any premises covered by the provisions of this subchapter, to determine compliance with its provisions, and all applicable laws, rules, regulations, standards, or directives of any local state or federal 10 authority-. 35.22.17.A The Fire Marshal and the oil and gas inspector are authorized and directed to enforce this Subchapter and the provisions of any Gas Well Permit. N-henever necessary to enforce any provision of this Subchapter or a Gas Well Permit, or whenever there is reasonable cause to believe there has been a violation of this Subchapter or a Gas Well Permit, the Fire Marshal or oil and gas inspector, mar enter upon any property- covered by this Subchapter or a Gas Well Permit at any reasonable time to inspect or perform any duty- imposed by this Subchapter. If entry- is refused, the City- shall have recourse to even-y- remedy provided by law and equity- to gain entry. DDC 35.23 Improvement (Public or Private). Any physical man-made addition which becomes put of, is placed upon, or is affixed to any real property-, or any put of such addition, including but not limited to, any building, structure, bridge, work of art, puking facility-, public facilit\-, fence, gate, wall, streets and all related appurtenances, utilities, pedestrianways, bikeways, equestrian trails, landscaping or irrigation, whether involving the subdivision of land or not. Project. A specific development on an identifiable parcel of land. Project improvements. Site improvements and facilities that are planned and designed to provide for a particular development project and that are necessan-y for the use and convenience of the occupants or users of the project. Project site. That portion of any lot, parcel, tract, or combination thereof that encompasses all phases of the total project proposal. di O r nance _ 2009 098 - - , Section 2.4 «rhi Ordinance Add the following fey schedule to Ordinance 20005-237: 20005-237 A i i F ct v ty ee The following fees shall be charged for the first two (2) reviews Gas cll StTP Rcv iew $12,500 Gas cll Development Site Plan $7,00 Gas Well Development Plat Review ~,000 Gas Well Plat/Site Plan Amendment Each additional two reviews $-5! ~1 i0 The following fees shall be charged annually, per gas well Annual Inspection and Administration Pee (within (-ity-) $3,200 Annual Inspection and Administration Pee (within ETI) $1,800 The following fees shall be charged per each application I -,,uisfer of uper,irion $7oo W atershed Protection Permit $3,000 Gas Well Permit $-5-50 Fracture /Drill Pond $~-50 Compressor Facility- Permit $~-50 11 This page left blank intentionally . AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Planning and Development ACM: Fred Greene SUBJECT Hold a public hearing and consider making adopting an ordinance of the City of Denton, Denton, Texas, regarding amendments to the Fry- Street Overlay District (FSOD), Section 35.7.5 of the Denton Development Code. The proposed amendments are to update Code references in the text of the overlay district (DCA10-0004) and to create a subarea of approximately 4.275 acres for a proposed mixed use development located on the block bound by Oak, Hickory, Fiy, and Welch Streets (Z10-0009), N-'-ith an associated set of regulations specific to the proposed mixed use development. The subject site is located within a Downtown Commercial General (DC-G) zoning district in addition to being subject to the Fry Street Overlay District requirements. BACKGROUND On December 21, 2009, Dinerstein Companies submitted a pre-application (PAC09-0122) for a proposed multi-family development in the Fry Street area. The proposal included a four (4) story apartment complex with a total of 586 beds distributed among 1-, 2-, and 4-bedroom units. The pre-application was reviewed by the Development Review Committee (DRC) and comments were returned to the applicant on December 31, 2009. The applicant held a neighborhood meeting to solicit input on the proposal on January 27, 2010, and modified the site plan based on the DRC comments and the public input they received. On February 17, 2010, a second public meeting was held to present the modified site plan to the public and to solicit feedback. Approximately 70 people attended the first meeting, and 50 people attended the second meeting (based on sign in sheet information). The main modifications to the site plan included the incorporation of retail space on the main floor along Fry Street and Hickory Street, inclusion of an outdoor plaza area, and a decrease in the overall number of residential units from 210 to 194. During the staff review of the pre-applications, a number of aspects of the proposal were identified as being in conflict with the FSOD regulations, including height limitations that would not allow the proposed residential or parking strictures, and required minimum land areas for each unit in multifamily unit. The proposal was presented to the City Council in a Work Session on March 9, 2010, and subsequently submitted to the City as an official application to amend the FSOD on April 5, 2010. During the reviews of the application, staff identified three outdated code references, and proposed to update these code references simultaneously with the application for the proposed Mixed Use Development (See Staff Report for Accompanying Case No. DCA10-0004). On May 17, 2010, staff initiated a neighborhood meeting to discuss the proposed changes, identify other possible changes to the FSOD, and present the final plans submitted by Dinerstein Companies. The meeting was attended by approximately 24 people (based on sign in sheet information). The majority of the questions and concerns raised at this meeting were what impacts the proposed amendments would have on properties and existing businesses within the FSOD, and the details of the proposed Mixed Use Project. Concerns raised about the project were related to the rental stricture of the units, the impact of the increased height, traffic impacts, and the architectural styles proposed. No proposals for further modifications of the larger overlay district were put forth subsequently. The property is within a Downtown Commercial General (DC-G) zoning district as modified by the regulations of the FSOD. The FSOD was adopted on February 1, 2000 (Ordinance 2000- 044; Exhibit 4). The intent of the overlay district is to recognize the important role the area plays in the community and in the lives of many college students that frequent the area. The FSOD also provides regulations to aid in redevelopment and revitalization of the area by promoting developments that are compatible with the unique character of Fry Street and encourage its preservation. The Overlay District addresses issues related to parking, area and height requirements, and solid waste containers. PRIOR ACTION/REVIEW 1. January 27, 2010 Neighborhood Meeting, held by applicant 2. February 17, 2010 Neighborhood Meeting, held by applicant 3. March 9, 2010 City Council Work Session 4. May 17, 2010 Neighborhood Meeting, held by Planning Division 5. June 23, 2010 Planning and Zoning Commission Work Session and Public Hearing held OPTIONS 1. Approve as submitted. 2. Approve with conditions. 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION The Planning and Zoning Commission recommends APPROVAL of the proposed amendments to the Fry Street Overlay District to correct outdated Code references (DCA10- 0004), and to create a subarea with associated regulations (Z10-0009) (6-1). The Development Review Committee recommends APPROVAL of the proposed amendment of the Fry Street Overlay District to correct outdated Code references (DCA10-0004) and to create a subarea and associated regulations (Z10-0009). ENCLOSED STAFF REPORTS 1. Staff Report pertaining to Correction of Code Citations (DCA10-0004) 2. Staff Report pertaining to Creation of a Subarea within the Fry Street Overlay District and the regulations pertaining to the subarea (Z10-0009) Prepared by: Jane Gurney, AICP Senior Planner Respectfully submitted by: for Mark Cunningham, AICP, CPM Director, Planning and Development CITY OF DENTON DEVELOPMENT REVIEW COMMITTEE STAFF REPORT P&Z Date: June 23, 2010 TYPE: Overlay District Amendment CC Date: July 20, 2010 PROJECT DCA10-0004 Project Number: DCA10-0004 Request: Amend the Fry Street Overlay District (FSOD) to correct Denton Development Code (DDC) references. Location: Property generally bounded by Welch Street to the east, Oak Street to the North, Ave B to the northwest, Ave A to the southwest, Mulberry Street to the south, and Hickory to the southwest. Size: Zoning Designation: Future Land Use: Case Planner: DRC Recommendation Summary of Analysis: 12.42 acres Downtown Commercial General (DC-G) as modified by the FSOD. Downtown University Core Jane Gurney The Development Review Committee recommends APPROVAL of this Denton Development Code amendment request. During the review of the amendment of the FSOD by Dinerstein Companies, Ltd, staff identified several outdated references in Subchapter 35.7.5 DDC and is proposing to update the citations. A public meeting was held on May 17, 2010 to discuss this amendment as well as the amendment proposed by Dinerstein Companies (Z10-0009). All property owners within the FSOD were invited to the meeting, as were all residents within the District, all residents within 500 feet of the District, and all property owners within 200 feet of the District. The meeting was attended by approximately 24 people (based on sign in sheet information), and no other amendments were requested by property owners or residents at that time. The majority of questions received at the meeting, and regarding this amendment, were from property owners that wanted to ensure the amendments would not impact their existing properties or uses on properties. The corrections proposed by staff are for the references found in sections 35.7.5.1 Fry Street District Established, 35.7.5.6 Solid Waste Containers, and 35.7.5.7 Sign Regulations. The changes proposed are underlined below, with deletions included in strikethrough text (s+rj' ee hr-etig +&i+), and additions underlined and in bold text face (bold text face): DRC Findings/Recommendation Page 1 of 21 Case#: DCA10-0004 35.7.5.1 Fry Street District Established. There is hereby established a special zoning overlay district to be known as the Fry- Street District. The Fry- Street District is defined as that area approximately 12.42 acres in size which is bounded by Welch Street to the east, Oak Street to the North, Ave B to the northwest, Ave A to the southwest, Mulberiv Street to the south, and Hickoiv to the southwest. The F,<_ Street disc ie . All buildings, structures, sites, and properties within the designated district shall be subject to the restrictions, limitations, and provisions of the Fry- Street District regulations as provided for in d4R,-w6e~section 35.7.5. and its subsections. 35.7.5.6.13. Consolidation. Consolidation of containers is required of even- owner, occupant, tenant, or lessee of any business, commercial, or institutional property, or other property not entitled to residential solid waste collection service. Each owner, occupant, tenant, or lessee of any business, commercial, or institutional property shall arrange, by contract with the city, commercial solid waste collection and disposal services from the city's solid waste division, except as otheitivise specified in Subchapter 13 of the Denton Development Code r of the Code of Of4ifinnees of the City of Denton, T 35.7.5.7 Sign Regulations. The provisions of Subchapter 15 of the Denton Development Code r of the Code of OFdinnnees of the City of Denton, shall apply, except as follows: Exhibits Exhibit 1 Site Location/Aerial Map Exhibit 2 Zoning Map Exhibit 3 Future Land Use Map Exhibit 4 Public Notification Information DRC Findings/Recommendation Page 2 of 21 Case#: DCA10-0004 Exhibit 1 Site Location/Aerial Map L,. . ` y M1 ~ c r I R!"' ~1 w NNN F r r p~ sce-erg. ~F1W duff;' ~ t MU 6LKRY~~ - VJL ~LRR'Y { All gar i'•?<A , r ~ y.. A "SYCAMORE A 1 Q Legend Fry Street Overlay District DRC Findings/Recon endation Page 3 of 21 Case#: DCA10-0004 Exhibit 2 Zoning Map Legend Fry Street Overlay District DRC Findings/Recommendation Page 4 of 21 Case#: DCA10-0004 Exhibit 3 Future Land Use Map Legend Pr, wsed Subarea of Fry Street Overlay DiFi d Fry Street Overlay District DRC Findings/Recommendation Page 5 of 21 Case#: DCA10-0004 Exhibit 6 Notification Exhibit and Responses from Property Owners within 200 feet _ o J ~L Z Z W o z 0 0 _ U. GREGG r fr LL b W I HICKORY l ~ p7c MULBERRY 1200 Foot Nolificalion ni- U1 SYCAMORE s©© Foot N tf i- t ,n Limit 0 OAK Legend - strut overlay olstrict n Favor Public Notification Date: June 13, 2010 200' Legal Notices* sent via Certified Mail: 41 Number of responses to 200' Legal Notice: ■ In Opposition: 0 ■ In Favor: 14 ■ Neutral: 1 * - A copy of the notification list is available at City Hall West, 221 N. Elm Street, Denton, TX DRC Findings/Recommendation Page 6 of 21 Case#: DCA10-0004 FROM :AMF CCIM FAX NO. :9725991102 Jun. 14 2010 01:43PM P1 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2810, and consider making a recommendation to the City Council regarding an amendme rt of the Fry Street Overlay DlstdGJ; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references in the text of the overlay district (OCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea YAII create a set of regulations specifc to the proposed mixed use development, and will not alter the regulations which govern the remainder of the t=ry Street Overlay District. The public hearing will start at 5:30 p.m. in the City Council Chambers two C City Hall located (QOfear of fire McKinney Street, Denton, Texas. Because you own prope►ty ) subject property, the Planning and Zoning Commission would like to hear how you •fuel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken Into account. return this form with your commends prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax 4 to the number located at the bottom or malt it to the address below or drop it off in-person: Planning ulosion xzt N. Etm Street Denton, Texas 16281 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor Of request Neutral to request opposed to request Reasons for pposition: Signature: e , - Printed Name: ~``Iky ff / frn-r ~ 1^ /T I Sp / N , e Mailing Address: y 101 l l C O t,/i l? 7 „ City, Slate Zip: /C D 7S-o2'( A Telephone Number 1102 Physical Address of Property within 200 feet: / O / /a 3 /or. ~ CITY OFDENTON, TEXAS CITY HALL WEST - DENTON, TEXAS 76201 • 940.349.8541 • (F) 8$0.349,7707 2,Ai Paz. W&G DRC Findings/Recommendation Page 7 of 21 Case#: DCA10-0004 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references in the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you awn property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feet about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to reque~ Opposed to request Reasons for Opposition: Signature: ag J Printed Name: Mailing Address: G City, State Zip:< Telephone Number: ~~/ZJ - 03 l Physical Address of Property within 200 feet: CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 940.349.8641 (F) 940.349.7707 2490'P&7 Notice DRC Findings/Recommendation Page 8 of 21 Case#: DCA10-0004 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references in the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feet about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request Opposed to request Reasons for Opposition: Signature: iyu_ Printed Name: ~ C-', 6f 't 1^ / ! Mailing Address: n ~ IC 1 S City, State Zip: L/ L12 rt/ t- 7x Telephone Number: 0 5 r Physical Address of Property within 200 feet; CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 • (F) 940,349,7707 200• PsZ Noric DRC Findings/Recommendation Page 9 of 21 Case#: DCA10-0004 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references In the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feet about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return-this form with-your comments prior to the date of the public heating.-(This in no way prohibits you from attending and participating in the public hearing.) You may fax It to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request opposed to request Reasons for Opposition: Signature: Printed Name: Fry Street Partners, LTD by Edwin Freedman Malling Address: 4545 Bissonnet Street City, State Zip: Bellaire, Texas 77401 Telephone Number: 713417-1318 Physical Address of Property within 200 feet: 1231 West oak street CITY OF DENTON, TEXAS CITY HALL WEST • DENTQN, TEYAS 76201 940.349.8541 • (F) 940-349.7707 200' P&Z Notice DRC Findings/Recommendation Page 10 of 21 Case#: DCA10-0004 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references In the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Pleaso, in order for your opinion to be taken into -account, return-this form with your comments prior to the date of-the public hearing, -(This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mall it to the address below or drop it off In-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn; Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and appose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: in favor of request Neutral to request Opposed to request Reasons for Opposition: Signature: Printed Name: Fry Street Partners, LTD by Edwin Freedman Mailing Address: 4545 Bissannot Street City, State Zip: Bellaire, Texas 77401 Telephone Number: 713-417-1318 Physical Address of Property within 200 feet: 1235 oak Street CITY OF DENTON, TEXAS CITY HALL WE5T • DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 260' P&'Z Notice DRC Findings/Recommendation Page 11 of 21 Case#: DCA10-0004 NOTICE OF PUBLIC WEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, Juno 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references in the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, returrrthis form with-your comments prior to the date of the public hearing,-.(-This in no way prohibits you from attending and participating in the public hearing.) You may fax It to the number located at the bottom or mail it to the address below or drop It off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please cirole one: In favor of request Neutral to request Opposed to request Reasons for pposltlon: Signature: ~j Printed Name: Fry Street Partners, LID by Edwin Freedman Mailing Address: 4545 Bissonnet Street City, State Zip: Bellaire, Texas 77401 Telephone Number: 713-417-1318 Physical Address of Property within 200 feet: 1211 west Oak Street CITY OF DENTON, TEXAS CITY HALL WEST - DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 200' PU Notice DRC Findings/Recommendation Page 12 of 21 Case#: DCA10-0004 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references In the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, In order for your opinion to be taken into account, returrmthis form-wftyeur comments prior to the date of the public hearing,-.(.This in no way prohibits you from attending and participating In the public hearing.) You may fax It to the number located at the bottom or mail it to the address below or drop It off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. _ Please circle one: In favor of request Neutral to request Opposed to request Reasons for Opposition: Signature: Printed Name: Fry Street Partners, LTD by Edwin Freedman Mailing Address: 4545 Bissonnet Street City, State Zip: Bellaire, Texas 77401 Telephone Number: 713-417-1318 Physical Address of Property within 200 feet: 101- i11 Welch Street C17 Y OF DENTON, TEXAS CITY HALL WEST DENTON, TEXAS 76201 • 940.349.8541 (F) 940-349.7707 200 P84 Notice DRC Findings/Recommendation Page 13 of 21 Case#: DCA10-0004 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references in the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. In the City Council Chambers of City Ball located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would tike to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, retwwlhis form with-your comments prior to the date of the public hearing=-.(.This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop It off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. _ Please circle one, In favor of reques-t_D Neutral to request Opposed to request Reasons for Opposition., Signature: Printed Name: Fry Street Partners, LTD by Edwin Freedman Mailing Address: 4545 Bissonnet Street City, State Zip: Bellaire, Texas 77401 Telephone Number: 713 417-1316 Physical Address of Property within 200 feet: 114 Fry Street CITY OF DENTOW, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 200' P&Z Nofrca DRC Findings/Recommendation Page 14 of 21 Case#: DCA10-0004 NOTICE OF PUBLIC WEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references In the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 D. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, In order for your opinion to be taken into account, retumrthis form-with-your comments prior to the date of the public hearing, -.(I'his in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please cirole one: In favor of request Neutral to request Opposed to request Reasons for Opposition: Signature: Printed Name: Fry Street Partners, LTD by Edwin Freedman Mailing Address: 4545 Bissorret Street City, State Zip: Bellaire, Texas 77409 Telephone Number: 713417-9318 Physical Address of Property within 200 feet: 1112 Fry Street CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.9541 • (F) 340.349.7707 200' P&2 Notice DRC Findings/Recommendation Page 15 of 21 Case#: DCA10-0004 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references In the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would tike to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return-this form with-your comments prior to the date-of the public hearing, _(This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please cirole one: In favor of request Neutral to request Opposed to request Reasons for Opposition: Signature: Z ' ~itXL1 - Printed Blame: Fry Street Partners, LTD by Edwin Freedman Mailing Address: 4545 8issonnet Street City, State Zip: Bellaire, Texas 77401 Telephone Number: 713-417-11318 Physical Address of Property within 200 feet: 1218 - 26 Hickory Street and 106 Fry Street CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 (F) 940-349.7707 200'P82 N(WCe DRC Findings/Recommendation Page 16 of 21 Case#: DCA10-0004 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5, of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references In the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the fry Street Overlay District. The public hearing will start at 6:30 p.m, in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into mccount, retum-this form with your comments prior to the date of-the public hearing. -(.This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 70201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. In faLor rReasons for Opposition: Please cirole one: Neutral to request Opposed to request Signature: Printed Name: Fry Street Partners, LTD by Fdwin Freedman Mailing Address: 4545 Bissonnet Street City, Stale Zip: Bellaire, Texas 77401 Telephone Number: 713.417-1318 Physical Address of Property within 200 feet: 1120 West Hickory CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 200' P&Z Notlce DRC Findings/Recommendation Page 17 of 21 Case#: DCA10-0004 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5, of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references In the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. In the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into -account, returwthis form with youf comments prior to the date of the public-hearing.-(.This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request Opposed to request Reasons for Opposition: Signature: Printed Name: Fry Street Partners, LTD by Edwin Freedmen Mailing Address: 4545 Bissonnet Street City, State Zip: Bellaire, Texas 77401 Telephone Number: 713-417-1318 Physical Address of Property within 200 feet: 1204 west Hickory CITY OF DENTON, TEXAS CITY HALL WEST - DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 20or P&Z 140t+ce DRC Findings/Recommendation Page 18 of 21 Case#: DCA10-0004 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references In the text of the overlay district (DCA10.0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (710-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p,m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feet about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into zccount, return-this form with-your comments prior to the date of the public hearing, -.(This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop It off in-person: Planning Division 221 N. Elm Street Denton, Texas 76207 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please cirole ones =favor 70f request Neutral to request Opposed to request Reasons for Opposition: Signature: Printed Name: Fry Street Partners, LTD by Edwin Freedman Mailing Address: 4545 Bissonnet Street City, State Zip: Bellaire, Texas 77401 Telephone Number: 713417-11318 Physical Address of Property within 200 feet: 1217 West Oak Street CITY OF DENTON, TEXAS CITY HALL WEST - DENTON, TEXAS 76201 - 940.349.8541 • (F) 940-349.7707 200' P&Z NOUCe DRC Findings/Recommendation Page 19 of 21 Case#: DCA10-0004 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references in the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feet about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, retum-this form-with-your comments prior to the date of the public hearing. - (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mall it to the address below or drop It off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please cirole one: 6i favor of request Neutral to request Opposed to request Reasons for Opposition: Signature: z,„J~ t L' t ~f Printed Name: Fry Street Partners, LTD by Edwin Freedman Mailing Address: 4545 Bissonnet Street City, State Zip: Bellaire, Texas 77401 Telephone Number: 713-417-1318 Physical Address of Property within 200 feet: 1206 West Hickory Street CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 • (F) 340.349.7707 200' P&Z Notice DRC Findings/Recommendation Page 20 of 21 Case#: DCA10-0004 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references in the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feet about this request and invites you to attend the public hearing. Please, In order for your opinion to be taken into -account, return-this form wilh-your comments prior to the date-of the public hearing. - (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off In-person: Planning Division 221 N. Elm Street Denton, Texas T6201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please cirole one: C In favor of request Neutral to request Opposed to request Reasons for Opposition: Signature: Printed Name: Mailing Address: City, State Zip: Telephone Number: Fry Street Partners, LTD by Edwin Freedman 4545 Bissonnet Street Bellaire, Texas 77401 713.417-1318 Physical Address of Property within 200 feet 1225 west Oak Street CITY OF DENTON, TEXAS CITY HALL WEST - DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 200' P&Z Notice DRC Findings/Recommendation Page 21 of 21 Case#: DCA10-0004 CITY OF DENTON DEVELOPMENT REVIEW COMMITTEE STAFF REPORT P&Z Date: June 23, 2010 TYPE: Overlay District Amendment CC Date: July 20, 2010 PROJECT ZIO-0009 Project Number: Z10-0009 Request: Amend the Fry Street Overlay District (FSOD) to provide for the creation of a subarea to allow for the constriction of a mixed use development. The site is located within a Downtown Commercial General (DC-G) zoning district as further modified by the FSOD. Applicant: Din/Cal 2 Inc. 3411 Richmond Avenue, Suite 200 Houston, TX 77046 Property Owners: Fry Street Partners, Ltd. c/o Buster Freedman - United Equities 4545 Bissonet, Suite 100 Bellaire, TX 77401 Eugene Hartman 116 Fry Street Denton, TX 76201 Normile Family Partners, Ltd. 1424 Ridgecrest Circle Denton, TX 76205 Mr. and Mrs. Joe Normile 1100 West Hickory Denton, TX 76201 Location: Block bound by West Oak Street, Fry Street, West Hickory Street, and Welch Street, with the exception of the 0.1469-acre property located at 1210 West Hickory Street. Size: 4.275 acres Zoning Designation: Downtown Commercial General (DC-G) as modified by the Fry Street Overlay District Future Land Use: Downtown University Core Case Planner: Jane Gurney DRC Recommendation: The Development Review Committee recommends APPROVAL of this overlay amendment request. DRC Findings/Recommendation Page 1 of 9 Case#: Z10-0009 Summary of Analysis: The subject property, as shown in Exhibit 1, includes the majority of the land in the block bound by Oak Street, Fry Street, Hickory Street and Welch Street. The property is within a Downtown Commercial General (DC-G) zoning district as modified by the regulations of the FSOD. The FSOD was adopted on February 1, 2000 (Ordinance 2000-044; Exhibit 4). The intent of the overlay district is to recognize the important role the area plays in the community and in the lives of many college students that frequent the area. The FSOD also provides regulations to aid in redevelopment and revitalization of the area by promoting developments that are compatible with the unique character of Fry Street and encourage its preservation. The Overlay District addresses issues related to parking, area and height requirements, and solid waste containers. During the review of the pre-application, a number of aspects of the proposal were identified as being in conflict with the FSOD regulations, including height limitations that would not allow the proposed residential or parking strictures, and required minimum land areas for each unit in multifamily unit. The District restricts strictures to no more than three (3) stories, and the overall building height to a maximum of 45 feet, including any rooftop equipment. The applicant has requested modification of the FSOD in order to accommodate the proposed development, including a request to allow habitable strictures to be four (4) stories in height up to a maximum of 55 feet. By creating a subarea within the FSOD, the modification of the ordinance will permit the creation of regulations specific to the proposed development without impacting the regulations governing the properties on the other 8.145 acres within the District. The requested modifications will allow the subject property to remain a contributing portion of the FSOD, maintain the continuity of the Overlay District and affording opportunities for revitalization of the area. The cohesive design of the overall project, the site plan, and the design elements submitted as part of the application, result in a project that is almost one-third of the entire FSOD which will contribute to the revitalization and redevelopment of the area, a stated purpose of the Overlay District Ordinance (Ordinance 2000-044, Exhibit 4). Overlay District Modifications Requested Below is an outline of the main modifications requested through this application, with some backup information and/or rationale provided for each aspect of the requests. 1. Creation of Subarea As stated above, staff believes that this is the best option to allow the proposed project to proceed with some deviations from the existing Overlay District regulations and allow the applicant flexibility to create a high quality project while still offering the neighboring properties the protection afforded by the Overlay District. Another option considered by the applicant was to request the removal of the property from the FSOD. Staff saw this as a less desirable approach given the fact that the base zoning district of Downtown Commercial General (DC-G) is less restrictive than the Overlay District and allows for the possible constriction of 100-foot tall buildings by-right. 2. Height Regulations The FSOD allows for a maximum building height of 3 stories, with no overall building height (including HVAC equipment, roof systems, vent stacks, etc) to exceed 45 feet. The proposed development will be four stories in height, with a central parking garage containing five stories. The amendment proposed by the applicant is that no habitable strictures exceed four (4) stories, with a maximum height of 55 feet, and that no parking strictures exceed 60 feet in height. The DRC Findings/Recommendation Page 2 of 9 Case#: Z10-0009 applicant has attempted to minimize the impact of the additional height on the adjacent single family neighborhoods by presenting facades that include features common to single family strictures, and by providing a sloped roof pitch along Welch Street. An exhibit was prepared by the applicant to demonstrate the proposed height of the residential units along Welch Street as compared to the height of the house located at the southeast corner of Welch and Oak Street (Exhibit 10). 3. Area Requirements The Fry Street Overlay District currently includes language that requires minimum land areas for each multi-family unit. This requirement is in addition to the density-based requirements that the rest of the City's zoning districts are subject to (e.g. density in the underlying DC-G zoning district is limited to a maximum of 150 dwelling units per acre), and significantly limits the density possible on a site due to the open space that is required for each unit. For example, any efficiency unit requires 1,000 square feet of land are on the site, and a four bedroom apartment would require a minimum of 2,400 square feet of land. The density-based requirements and lot coverage maximums which govern all other properties based on the base zoning district are also proposed for this subarea. The proposed development includes 194 residential units, comprised of 1 bedroom units (20), 2 bedroom units (43), 3 bedroom units (10), and 4 bedroom units (121). Based on the proposed composition of units, almost twice as much property (8.3 acres) would be required to accommodate the number and composition of units proposed. The proposed 194 units contain a total of 620 bedrooms on 4.274 acres. Density within the underlying DC-G zoning district is calculated based on number of bedrooms (one unit equals two bedrooms), and as such, the proposed density is 72.5 units per acre. Since the DC-G zoning district allows a maximum of 150 units per acre, the proposed density is significantly less than that allowed in the base zoning district. The project is also incorporating LEED design measures and lessening sprawl, therefore staff is in support of a density-based restriction for the subarea rather than the open space density calculations required currently. 4. Parking Ratios Parking ratios in the existing FSOD are more restrictive than the parking regulations in other areas of the City. A comparison of the Fry Street parking regulations, the proposed regulations, and the regulations that the remainder of the City is subject to are provided in Table 1. The applicant has also supplied justification of the request for reduced parking based on other similar projects (Exhibit 9). The proposed development will incorporate bike-share programs and include lockers within the parking stricture for bike storage for residents. Given the proximity to the University of North Texas and the proposal to incorporate bike share and storage programs, staff finds the request for the reduced on-site parking acceptable. DRC Findings/Recommendation Page 3 of 9 Case#: Z10-0009 Table 1. Comparison of Parkin4 Requirements Use Fry Street Overlay Proposed Minimum Denton Development District Parking Parking Code (Subchapter Requirement Requirement 14) Parking Requirement Efficiency Units 1.25 spaces/unit 1 space/unit 1 space/unit 1 Bedroom Units 1.5 spaces/unit 1.5 spaces/unit 1.5 space/unit 2 Bedroom Units 1 space/bedroom 1.75 spaces/unit 1.75 spaces/unit 3 Bedroom Units 1 space/bedroom 2 spaces/unit 2 spaces/unit 4 Bedroom Units 1 space/bedroom 1 space/bedroom 1 space/bedroom Restaurant 1 space/400 sq ft of 1 space/400 square 1 space/100 square floor area or 1 space feet of floor area or 1 feet of floor area or 1 per six seats, space per six seats, space/4 seats, whichever is greater whichever is greater whichever is less Retail 1 space/400 sq ft of 1 space/400 square 1 space/300 sq ft of floor area feet of floor area floor area 5. Sign Regulations The FSOD prohibits ground and monument signs; however, the applicant is proposing to locate two monument signs at the main entrances to the development. Staff finds that the proposed monument signs, as demonstrated in the enclosed exhibits, are of a size appropriate for the area (5 feet in height by 3 feet wide), that will contribute to the pedestrian-scaled, and pedestrian- oriented design of the project. The applicant is also proposing changes that would allow signs to be mounted perpendicular to the walls of buildings, which is not permitted currently. Initially, staff did not support this request due to the potential of signs to encroach into the public right-of-way. The applicant has since revised the proposal, however, and no signs mounted perpendicular to the buildings will encroach into public right-of-way. Signs related to the residential portion of the development will be limited with regard to information permitted on the sign, as is currently regulated within the FSOD. Staff is in support of the requested amendments to the sign regulations for this subarea. 6. Landscaping and Tree Canopy Requirements Prior to the current proposal, a previous developer cleared a portion of the subject property and removed several trees without obtaining a tree removal permit. At that time, the property owner was put on notice that the mitigation of trees removed without a permit would be required when the property was platted. The current applicant was made aware of this requirement, and they have been working with staff on mitigation options for trees previously removed as well as trees they are now proposing to remove. Due to the removal of the previous trees, and the configuration of the proposed site plan, the applicant is not able to meet the minimum preservation requirements on the site. There have been several restrictions placed on the planting of trees adjacent to the public right- of-way by staff due to the relocation of electric utilities from overhead service to underground service. These restrictions include no canopy or large trees along Fry Street or Hickory Street, and a minimum spacing of 30 feet between the centers of each tree planting. The applicant is currently proposing to plant 39 replacement trees along the public right-of-way (to include 23 large trees and 16 ornamental trees), as well as approximately 6 large trees and 7 medium trees internally in the Courtyard areas. The total tree canopy proposed will be approximately 23% on the entire 4.275 acre site. This exceeds the minimum required canopy in the DC-G zoning DRC Findings/Recommendation Page 4 of 9 Case#: Z10-0009 district by 3%. If the applicant was able to plant larger canopy trees along Fry Street and Hickory Street, as they had originally proposed, the tree canopy would be approximately 33%. As the current site plan will not allow the applicant to meet the minimum preservation requirements on-site or plant all of the required replacement trees on-site, staff is recommending that the canopy be replaced through the planting of trees in public spaces within one-mile of the subject property. This will allow for the replacement of lost canopy in the immediate area while ensuring that the trees are planted on property that will allow the City to maintain them. The total caliper inches of trees previously removed plus those proposed to be removed is 510.5" inches. If the applicant chose the option of paying into the City Tree Fund, the cost would be $63,812.50 based on the standard fee of $125 per inch. The applicant may decrease this amount if they plant replacement trees that are larger than 2" on the site at the time of development. The landscape plan (Exhibit 6) shows replacement trees to be planted with 5" caliper trees, which will offset the amount of mitigation dollars owed by approximately $20,000.00, to a minimum payment of $42,562.50. If the applicant is not able to plant 5" caliper trees, as proposed in the attached site plan, then the minimum payment will be adjusted to reflect the total inches of replacement trees at the time of planting. The mitigation fee will be placed into an account for the use of the City of Denton Parks and Recreation Department to plant trees and, if necessary, install irrigation equipment to ensure the survival of the trees, on City-owned property within a 1 mile radius of the subject site. The most likely candidate areas for planting include Owsley Park and McKenna Park, both of which are approximately 0.7 miles from the subject property. In light of this agreement, staff is recommending approval of the proposed landscaping and tree preservation on site. 7. Architectural Standards The Fry Street Overlay District does not incorporate architectural standards or requirements specific to the area, however, in order to ensure that the proposed development will incorporate features that are reflective of the area's history, an architectural image board (Exhibit 14) and conceptual elevations (Exhibits 12 and 13) are provided as part of the overlay amendment. The proposed architectural guidelines will be required to meet, or exceed, the requirements of the DDC. The residential units on Welch Street will require a sloped roof pitch, as seen in residential uses to the east of the site, commercial uses may incorporate street-side dining or public seating areas, and each principal building facade or massing must incorporate at least two (2) of the features identified in the image board, which include: a. Store front design b. Awnings c. Stoops on the sheet level d. Accent bav windows e. Cornice details f. Brick facades with flat roof lines g. The incorporation of a bench and street tree in front of the building h. Arch details i. Shutters. In addition to the regulations that will be imposed for the residential and commercial uses on the property, the parking garage will contain a facade, as depicted in Exhibit 13, that integrates the parking stricture with the rest of the development. DRC Findings/Recommendation Page 5 of 9 Case#: Z10-0009 Development Review Committee Based upon the information provided by the applicant, the Development Review Committee finds that the request IS CONSISTENT with the surrounding land uses and general character of the area, IS CONSISTENT with the Denton Plan, and IS CONSISTENT with the Denton Development Code. The Development Review Committee recommends APPROVAL of this overlay amendment request. P&Z Recommendation The Planning and Zoning Commission recommended APPROVAL of this overlay amendment request (6-1) at its meeting on June 23, 2010. GENERAL NOTES A-OTE: Approval of this request shall not constitute a ii-aiver or variance from airy applicable development requirement unless specifically noted in the conditions of approval and consistent with the Denton Development Code. A-OTE: All written comments made in the application and subsequentsubmissions of'information made during the application review process, wbicb are on file with the Cio) ofDenton, shall be considered to be binding upon the applicant, provided such comments are not at variance with the Denton Plan, Denton Development Code or other development regulations in effect at the time of development. Analysis Denton Plan Analysis A. Consistency with Goals, Objectives and Strategies The property is located in a Downtown University Core future land use district. The Downtown University Core District is defined by the Denton Plan as "Specified commercial areas of the downtown university core district should be places of great vitality, with a mix of education, residential, retail, office, service, government, cultural, and entertainment development. The health and vitality of the area can contribute in a major way to the city, its local and regional image, and quality of life. It is a place where residents can live, work, learn, and play in the same neighborhood. It includes different uses which may occur on each floor of the building." The proposed project and amendments are clearly compatible with the Downtown University Core future land use district; the proposed development will incorporate mixed uses, and will provide opportunities for increased residential opportunities in the vicinity of downtown and the University of North Texas, allowing residents the opportunity to live in a neighborhood that also offers commercial, educational and recreational opportunities. DRC Findings/Recommendation Page 6 of 9 Case#: ZIO-0009 B. Land Use Analysis Surrounding Zoning Designations and Current Land Use Activity: Northwest: North: Northeast: DR-2, DC-N: Multi-family DR-2: Multi-famiK. Church, NR-3, NR-6, Oak Hickon- Historic residential, Single family residential, University of North Texas buildings District: Church, Multi-family Commercial Uses (vacant and residential. Single family residential occupied) West: Subject Property: East: DC-G, Fry- Street Overlay- District: DC-G, Fry- Street Overlay- District: NR-3, Oak Hickory- Historic Multi-family residential, Commercial uses (vacant and District: Multi-family residential, Commercial Uses (Restaurants, occupied), undeveloped (razed) Single family residential Retail, Gas Station) property Southwest: South: Southeast: DC-G: University- of North Texas DC-G, DC-N, DR-2, Fry- Street NR-3, DR-2: Multi-family- Campus Overlay District: Commercial Uses residential, single family residential, (Restaurants, Private Clubs, Retail, University of North Texas buildings Professional Services) J'ource: ( ity of Denton Geographical lgformatior Nil-stcm and site visit by City staff The proposed mixed use project is compatible with the surrounding land uses, and the site design is such that residential uses will be adjacent to other residential uses, single family and multi- family. The commercial uses are being concentrated near the corner of Fry Street and Hickory Street, where there are other existing commercial uses. Approval Criteria Amendments to an Overlay District, such as the Fry Street Overlay District, are subject to the procedures outlined in Subchapter 35.3.4. Zoning Amendment Procedure, of the Denton Development Code. The criteria for approval include: 1. The proposed rezoning conforms to the Future Land Use element of the Denton Plan; and The Future Land Use Element of the Denton Plan defines this area, the Downtown- University Core. 2. The proposed rezoning facilitates the adequate provision of transportation, hater, servers, schools, parks, or other public requirements and public convenience. The provision of adequate public facilities for this proposal was reviewed by the Development Review Committee (DRC) during the review period. DRC Engineering has determined that adequate public facilities exist to serve this development, and has provided the applicant with requirements that must be met at the time of platting of the property. Parameters and initial data submitted with regard to traffic generation have been reviewed, and a determination has been made that a Traffic Impact Analysis (TIA) will be required, which includes vehicular and pedestrian impact assessments. The vehicular and pedestrian TIAs must be completed and accepted in order for the property to be platted. DRC Findings/Recommendation Page 7 of 9 Case#: Z10-0009 Nearest Fire and EMS Station: Name of Station Approximate Distance From Subject Property Fire/EMS Fire Station #3 1.2 miles Source: Cite ofDeritori (;IS, Fire Dej)artmerit, alid EAIS Water and Wastewater Demand and Capacity: A. Estimated Demand and Service Provider: Subject Property Estimated Im pact Analysis 4.275 f acres Proposed Demand Adequate to Serve (Yes or No) Potable Water Consumption 359 (peak hour) Yes (GPM) Wastewater 281 (peak 2-hour) Yes Generation (GPM) The wastewater calculations provided above have been done as conservatively as possible, and are based on the assumption that all retail space is restaurant uses, which have the greatest potential impact on wastewater capacity. Peak flows are provided in gallons per minute. B. Available Capacity: An existing 8 inch potable water main along Hickory Street will serve the subject site. Sewer service is available via existing 8-inch sanitary sewer mains along Fry Street and Hickory Street. The tie-ins to the mains would be done with minimum 6 inch service lines. Connections to City water mains and sewer mains are done by City staff, and the developer is charged for this service. Based on the calculations of peak demand for water consumption and wastewater generation for the proposed property configuration (620 bedrooms and 10,000 square feet of retail), the existing infrastructure has capacity to serve the proposed mixed use development. C. CIP Planned Improvements: There are no planned public improvements for potable water or sanitary sewer in this area. Roadways/Transportation Network: A. Estimated Demand: Subject Property Estimated Im pact Analysis 4.275 f acres Proposed Demand Adequate to Serve (Yes or No Average Annual Peak AM hour=102 Y Daily Trips (AADT) Peak PM hour-- 152 DRC Findings/Recommendation Page 8 of 9 Case#: Z10-0009 B. Available Capacity: The subject site has roadway frontage on all sides of the development, and an internal access lane/fire lane is being installed to provide access to the parking stricture as well as to the leasing office and solid waste compactors. The property is bound by a westbound, one-way Secondary Arterial roadway on the north (Oak Street), and it is bound by an eastbound one-way Secondary Arterial on the south (Hickory Street). The east and west sides of the property are bound by two- way Collector roadways. Capacity is available on these roadways to accommodate the proposed uses. A Traffic Study has been initiated by the applicant, and based on preliminary information to define the parameters of the study, staff has recommended a Traffic Impact Assessment be performed to analyze and address the impacts of increased pedestrian traffic on surrounding street intersections. Requirements related to traffic impacts have been included in the proposed amendment (Exhibit 16) which will address additional traffic improvements, if warranted or required by a Traffic Impact Analysis. C. Roadway Conditions Fry Street: Fair Condition Hickory Street: Fair Condition Oak Street: Very Good Condition Welch Street: Poor Condition D. CIP Planned Improvements: There are no planned public improvements for transportation. Environmental Conditions: There are no Environmentally Sensitive Areas on site. Wells (Public/Private): There are no known public or private potable water wells on site. Airports: The site is located outside of the Denton Municipal Airport's ACLUD zones. Electric: The applicant is working with DME to ensure that proposed layouts can be accommodated. Electric service will be installed underground along Fry Street and Hickory Street, at the applicant's expense. Due to the underground lines, and the urban setting of the property, DME has requested no canopy or large trees be planted along Fry Street or Hickory Street, and that ornamental trees be planted no closer together than 30 feet (from center of planting to center of planting). Comments from other Departments: There are no other comments regarding this application. DRC Findings/Recommendation Page 9 of 9 Case#: ZIO-0009 Exhibits: Exhibit 1 Site Location/Aerial Map Exhibit 2 Zoning Map Exhibit 3 Future Land Use Map Exhibit 4 Ordinance 2000-044, Fry Street Overlay District Exhibit 5 Site Plan and Unit Breakdown Exhibit 6 Landscape Plan Exhibit 7 DME Easement Locations Exhibit 8 Letters from the Applicant Regarding Overlay Amendment Request and Project Narrative Exhibit 9 Letter from Applicant Regarding Parking Amendment Justification Exhibit 10 Height Differential Exhibit for the intersection of Oak and Welch Streets Exhibit 11 Proposed Sign Elevations Exhibit 12 Conceptual Elevations of Buildings at corner of Fry Street and Hickory Street Exhibit 13 Conceptual Elevations of Buildings and Parking Stricture on Oak Street Exhibit 14 Architectural Image Board Exhibit 15 Tree Mitigation Calculations Exhibit 16 Draft Code Amendment Exhibit 17 Notification Exhibit and Responses from Property Owners within 200 feet Exhibit 18 Meeting Minutes from Neighborhood Meeting held January 27, 2010 Exhibit 19 Meeting Minutes from Neighborhood Meeting held February 17, 2010 Exhibit 20 Meeting Minutes from Neighborhood Meeting held May 17, 2010 Exhibit 21 Ordinance Exhibits Page 1 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Exhibit 1 Site Location/Aerial Map V r ..1 11 I H fi r, - )Nh k - 'f m Wl '7 ~'.17P ~i eiff -a y xe. ~ - d ~ ZJ' ~ H1GKC w =;7 fJ ~ n S yy ' . L" A Y f 4 ,W "...4:4P r t~ ~',Y,? >tT i' v~f}J"1,11°~•.; 1 y, ~ °MUi PERRY _ novae It ~ ri ILCt C a rh ~4yu~i,rq~y ~Y""o, +w NT ^ A HH'i a , I JtJ..RWC Plli *6 t ° " T J, 41' e r t { 4 r. t5 a°` "S CAM R Y O E z Legend Oak-History h .toric District roposed Su barea of Fry Street Overlay District Fry Street Overlay District Exhibits Page 2 of 92 -,'1(^_010 11:40:51 AM Case#: Z10-0009 Exhibit 2 Zoning Map Exhibits Page 3 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Exhibit 3 Future Land Use Map Legend Fr, wsed Subarea of Fry Street Overlay ' IFIdct Fry Street Overlay District Exhibits Page 4 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Exhibit 4 Ordinance 2000-044, Fry Street Overlay District ORDINANCE NO o~ooa~O AN ORDINANCE AMENDING CHAPTER 35 OF THE CODE OF ORDINANCES OF THE CITY OF DENTON TO ADD ARTICLE XI "FRY STREET OVERLAY ZONING DISTRICT" AND AMENDING THE ZONING MAP OF THE CITY OF DENTON, TEXAS, AS SAME WAS ADOPTED AS AN APPENDIX TO THE CODE OF ORDINANCES OF THE CITY OF DENTON, TEXAS BY ORDINANCE NO 69-1, AS AMENDED SAID MAP APPLYING TO 12 42 ACRES OF LAND AS IS MORE PARTICULARLY DESCRIBED HEREIN, TO PROVIDE FOR THE CREATION OF A SPECIAL ZONING OVERLAY DISTRICT IN ACCORDANCE WITH THE PROVISIONS OF THE CODE OF ORDINANCES, SAID DISTRICT TO BE KNOWN AS THE FRY STREET DISTRICT, PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2000 00 FOR VIOLATION THEREOF, PROVIDING A SEVERABILITY CLAUSE, AND PROVIDING FOR AN EFFECTIVE DATE WHEREAS, on January 12, 2000, the Planning and Zoning Commission, after review of the Fry Street Small Area Plan, held a public hearing thereon, and recommended the creation of an overlay zoning district to be called the Fry Street District, and WHEREAS, on February 1, 2000, the City Council, after reviewing the Fry Street Small Area Plan, and recommendation thereof by the Planning and Zoning Commission, held a public hearing on the creation of the proposed Fry Street District, and WHEREAS, the City of Denton recognizes the important role that the Fry Street Area plays in the community as well as in the lives of many college students, and WHEREAS, the overlay zoning district for the Fry Street District and the regulations contained herein are designed to aid in redevelopment and revitalization that is compatible with and will serve to preserve the unique character in the Fry Street Area, and WHEREAS, the City Council of the City of Denton hereby finds that the creation of an overlay zoning district for the Fry Street District as provided herein is in the public interest, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS F .T~ION I1 Chapter 35 of the Code of Ordinances of the City of Denton is hereby amended to add Article XI so as to read in its entirety as follows ARTICLE XI. FRY STREET ZONING OVERLAY DISTRICT Sec. 35411 Fry Street District Established. There is hereby established a special zoning overlay district to be known as the Fry Street District The Fry Street District is defined as that area approximately 12 42 acres in size which is bounded by Welch Street to the east, Oak Street to the North, Ave B to the northwest, Ave A to Exhibits Page 5 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 \\CH LGL\VOLluhucdWapIVAUAur DOCUmmY`ArE~oeoCW\ONPrY$V 7609c the southwest, Mulberry Street to the south, and Hickory to the southwest The Fry Street District is also depicted on Exhibit "A", attached hereto and incorporated herein by reference The zoning map of the City of Denton, Texas, adopted on the 14 day of January 1969, as an appendix to the Code of Ordinances of the City of Denton, Texas, under ordinance 69-1, as amended, is hereby further amended to show the property herein described as the Fry Street District to be a special or small area district, by showing thereon the suffix "FS" for such district designation, which designation shall be in addition to any other zoning classification designated for said property as shown thereon All buildings, structures, sites, and properties within the designated district shall be subject to the restrictions, limitations, and provisions of the Fry Street District regulations as provided for in this article Sec. 35-412. Purpose and Intent. The purpose and intent of this article is to ensure public peace, safety, cleanliness, and general welfare for community members and patrons of the Fry Street District, by providing for regulations on off-street and remote parking, the location of solid waste containers, and the regulation of signs, setbacks, and residential & commercial density Sec. 35-413. Short Title. This article may be cited as the Fry Street District Regulations See 35-414. Off-Street Parking. The provisions of section 35-301 of the Code of Ordinances of the City of Denton shall apply to the Fry Street District, except as modified as follows a Remote parking Remote off-street parking to serve a building or use within the Fry Street District may be provided on a tract or parcel of land other than on which the building or use being served is located, provided that the required off- street parking space shall be within one thousand (1,000) feet of the building or use being served and shall provide convenient pedestrian access to the building or use being served b Non-residential, including restaurant, retail, private club, on premises sale of beer and/or wine One space for each four hundred (400) square feet of floor area or one (1) space for each six (6) seats under maximum seating arrangements, whichever is greater c Multi family residential Multi-family residential development shall be required to provide parking according to the following schedule Efficiency units one and one-fourth (125) space Units with 1 bedroom one and one-half (1 50) space Units with 2 or more bedrooms one space for each bedroom Page 2 of 6 Exhibits Page 6 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 1~ WLIV0LIa-&4*IL000-'Oooomao 0,0inwrea ffV Sump Z,,LNdo d Fraternities, Sororities, Boarding and Lodging Houses One (1) space for each bedroom Sec. 35-415. Area and Height Requirements. The provisions of section 35-91 of the Code of Ordinances of the City of Denton shall apply to the Fry Street District, except as modified as follows a Minimum lot area 1 Residential uses 6,000 square feet 2 Non-residential uses No minimum lot area 3 Mixed uses, including residential No minimum lot area b Minimum lot depth 1 Residential uses 100 feet c Minimum lot width 1 Residential uses 60 feet d Maximum building coverage 1 Residential uses 50% 2 Non-residential uses 100% 3 Mixed-uses that include residences 80% e Floor /Area Ratio 1 Residential uses 3 1 2 Non-Residential uses 2 1 3 Mixed-uses that include residential 3 1, provided that residential comprise the top story of any structure f Required Yards 1 Residential uses Front Minimum of 30 feet from centerline of street Side No required yard Rear Minimum of 10 feet 1 Non-Residential uses Front Minimum of 30 feet from centerline of street Side No required yard Rear No required yard 1 Mixed-uses that include residential Page 3 of 6 Exhibits Page 7 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 11CH I-CLIVOCIbhered~ilryPL(iLWm OocunialdU~dluOlwea\OP`PB' SVat T°nmytloo Front Minimum of 30 feet from centerline of street Side No required yard Rear Minimum of 10 feet for any floor that includes residences Height Regulations No structure may exceed 3 stones Overall building height, including HVAC equipment, roof systems, vent stacks, chimneys, etc, may not exceed 45 feet in height Residential densities The maximum number of apartment units that can be constructed on a site, while observing regulations including floor area ratio, building coverage, parking, height and setbacks, shall require a minimum land area in accordance with the following schedule Efficiency 1,000 square feet One bedroom apartment 1,200 square feet Each additional bedroom per apartment 300 square feet Sec 35-416. Multi-Family Uses Multi-family residential uses shall be allowed within any zoning district within the Fry Street District Sec. 35-417. Solid Waste Containers. a) Location Solid waste containers in the Fry Street District shall be located off the street in a centralized location, to the rear of a building served by the container, and shall be screened with devices made of masonry or wood b) Consolidation Consolidation of containers is required of every owner, occupant, tenant, or lessee of any business, commercial, or institutional property, or other property not entitled to residential solid waste collection service Each owner, occupant, tenant, or lessee of any business, commercial, or institutional property shall arrange, by contract with the city, commercial solid waste collection and disposal services from the city's solid waste division, except as otherwise specified in Chapter 24 of the Code of Ordinances of the City of Denton, Texas c) Other provisions All service charges and container regulations shall comply with Chapter 24 of the Code of Ordinances of the City of Denton Sec 35418 Sign Regulations. The provisions of Chapter 33 of the Code of Ordinances of the City of Denton, shall apply, except as follows Page 4 of 6 Exhibits Page 8 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 ,CH]A3L1VOLluhudWtpl\WLWYr DOCUmmIf~OrElYmw;a~uNPry St hdwdou Prohibited signs Ground and monument signs shall not be permitted within the District b Allowed signs Non-Residential All non-residential signs in the Fry Street District shall be wall signs, mounted parallel with, not perpendicular to, the face of the wall upon which the sign is secured Residential All residential signs in the Fry Street District shall be wall mounted signs, mounted parallel with, not perpendicular to, the face of the wall upon which the sign is secured Signs shall be limited to the purpose of indicating the name of the residential development (apartment, condominium, etc ) or for informational or regulatory purposes Mixed-uses that include residential Wall signs shall be allowed only on those stories of a building that include non-residential uses Sec. 35-419. Conflict with Other Regulations. To the extent the provisions of this article conflict with any other ordinances of the City of Denton, the provisions of this article shall control All provisions of other City of Denton ordinances not in conflict with this article shall remain in full force and effect SUTTON 2 If any provisions of any section of this ordinance shall be held to be void or unconstitutional, such holding shall in no way effect the validity of the remaining provisions or sections of this ordinance, which shall remain in full force and effect SECTION 3 Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2000 00 Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense SFC'TI N 4 That this ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, the official newspaper of the City of Denton, Texas within ten (10) days of the date of its passage PASSED AND APPROVED this the - day of , 2000 JAC LLER, MAYOR Page 5 of 6 Exhibits Page 9 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 MH fAL1VOll~huetl`dupDL(iLK1ur OOwmm410N~om<uWS1PrY SUat ]uNng.dac ATTEST JENNIFER WALTERS, CITY SECRETARY t By APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By Page 6 of 6 Exhibits Page 10 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 EXHIBIT A . © ; Ll H ° a Y - - . .....n ass HOIBM g ME] IE 0 i CI ° did 'I CIE: i Z.~ 00 0 D II 8 © I ; 0 E I r~ TN S' ❑ L I Ll ❑ E~,~ I ? e anv " e 9AV i r_r Z 0 m IL 03 cu c_ ~0 Oo m o a a~ +-f rn c L U) c c i c' W LL Exhibits Page 11 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Exhibit 5 Site Plan and Unit Breakdown t F^ - smEEr ~ ~ , ~ i AVENUE A F'i -0 r]e m.w W V u:. 9 (BC' RICH'! V) a e~ ~ ~ ~y o~ t+ SRFNT 2 ~ ]aW I V 8 _ s. a.na I I s R d~ mrm n .795 ~ $ O TAB ~ o a v L~ -44 RR yUa Rgg Il bF~q 5~ , gw° ~ ~l7 FjgQ m~ ® -~7 ~ 8 NS 6Ri A sxxna gnuE~ f m ~$u r. 6W " ].cc a, n Aa s ~ s t j uF } STREET .W, os 6 1 8 nnnnn nnnnn g $ esvesm 7 FRY STREET VILLAGE DENTON, TEXAS WELCH STREET mWw 2 ; 9. c MuNe~sn a~,tr: +samACr rn esz oN SITE PLAN 6 i - - Sogelmaoa W !v W 0£NTCN CWMtt, IENAS " aeelaw. Irv:. Exhibits Page 12 of 92 -,'1(^_010 11:40:51 AM Case#: Z10-0009 Architectural Site Plan with Residential Unit Distribution C r~ Cn X m m s,=~a FRY STREET ANT 1 S T ~ UP 2'- UP IS © \ ~JI'r J~ I~ ' i. _ Ll _ CREA U ~ ~r Lj L7I - -I (OUT~c'GR DINING .T r T. o m m r- 1 c~ I } L ~ r r' I ~ •-t ~ LEASING 3800 SF A -1 A F40T RINT _ I T- 7 - 24' WIDE(PRIVATE DRIVE GARAGE ENTRY m OPT SCREEN WALL ACCESS ESMT I c~ d-ih rd-. 34'4 ~ I _ . _Y_ GG9lf J ` - r D _ -r (5 ONI~2}bd 1id132# i vm ` A -:'r ONI~I21'Cd ~71ENd C95d~1 ~ \_r1 m I~ LASS THROUGH PAS: 11RUUGH-' PASS ~ - { °-7 1 17-^ r~ f ~ j .IA ~ -r ~ ~~LI n . L WELCH STREET Enlarged on following page Exhibits Page 13 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 UNIT TABULATION DATE RF TED- 8-Jun-10 TYPE AREA I NO. % TOT.AREA BEDS Al (16Rd1BA) B1 2BR/2BA 598 _ f 868 € 20 43 10% 22% 11,920 37,324 20 86 Cl 3BR/3BA 1,199 r 10 5% 11,990 30 D1 4BR/4BA 1,437 71 37% 102,027 284 4BR/46A D3 4BRf4M 1,531 1, 565 43 7 2214 3.61 0,'6 65,833 10,955 172 28 TOTAL 194 100% 240 049 6120 Exhibits Page 14 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Exhibit 6 Landscape Plan H FRY 5'iRFEi o- a}~ - .a . ~ n ` tsw =•x i m 0 0 1~ I iyy~ ? k Ai'~'Y y_ tl d m III' AR r ~ IF/• ~g 7 n ~~nn T' 7 'b I a 1 n 9 PONDER 1 ~ m~ v ] II , {W PAGHT- m ~ 'eau 6 a III °a al" $ {w;recH sa"fRw~ 1 1 f E~ II ~s 3®~~ r ~§attxi0§~ 4 ~ gg S Ir a f_ Y ~ f:~~ V3 R p~ T 5 :a 2 ~ ~6re LANDSCAPE PLAN Q Winkelmann~w l 4, I 1 . FRY STREET VILLAGE a. ~za DENTON, TEXAS Exhibits Page 15 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Exhibit 7 DME Easement Locations 'ING ' (fi iT-bF WAY) ~q may, . ~~p5# _ 3R 9$9$ ~ 9 a V V I__I F ~ 4 I AVENUE A 111 FAxT x ~ T I I ~~q u I ~ as MS"NG A M $ r RESTAURANT £ I - _ IE t ~ E ~ I I u. 6 v 9E~y 9NIHa a 11r13tl~ I i m p € y a W i o ~ Gg„" n ~A s'~ %Nlatlvd 194138 ~s"~•g Nm 9 I~ m ~ 9 1 o.a,a'~ ~ ^uN€ d Trf~..GS3N w ~ pp ~ al T n Z.- w 1~--- .'a' PONDER STREET s cwT-~-WAY) A i n 4 C fl~~ M gl T- -LL zly 019 fl4 2 4 2 gp~g~ +II€ ( S~g ' 3 a ~ qq WELCH STREET 2 ~ mAn~u[~i C45' RIGHT-('£-WAY) I t € rm~m, rA-a a L oil gad I 4I4 c. wwA€sw garyn..wswACT xa aae D.M.E EASEMENT EXHIBIT Winkelmann es/t el~g GENTON GGLWTY, 1ENA5 k AaseeLW Iae. .A~„•d,a FRY STREET VILLAGE nNEnsnIN cuasTNUCnaN aroma..wao+ca DENTON, TEXAS "N°aLY10NTae°Ac'znEE-''n Exhibits Page 16 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Exhibit 8 Letters from the Applicant Regarding Overlay Amendment Request and Project Narrative Winkelmainn & Associates, Inc. July 2, 2010 Jane Gurney City of Denton Planning Dept. 221 N. Elm St. Dallas, TX. 76201 RE: Fry Street Village Ms. Gurney: Enclosed are current site plans and landscape plans for the above referenced site. We have made some modifications from the original submittal. Some modifications are the result of the addressing of City comments; others are the result of a continued "fine tuning" of the plan based on several meetings with homeowners and staff. The following is our attempt to outline the changes for your use with Council presentation. 1. We have provided on street parking designations in accordance with both City codes and the City request to provide designated turn lanes for each drive. 2. We are depicting a 3'± widening of Fry Street to allow for both on street parking and enough width to satisfy fire department fire lane requirements. 1 The resulting on street parking is 39 spaces. This is compared to 14 spaces currently available. 4. The parking garage entry locations and configurations have been modified to meet the required stacking requirements. The garage itself will provide 668 parking spaces to meet all code requirements. The retail parking in the garage is segregated from the residential as it is located on the bottom floor and ungated. 5. The compactor area has been coordinated to provide for accessibility per City standards and for a second', recycling, compactor. In addition, the area is screened from public view. 6. The final layout provides for a total of 194 residential units with a total of 620 bedrooms. Bedrooms are broken down as follows: a. 20 Units of 1 Bedroom / 1 Bathroom totaling 20 bedrooms b. 43 Units of 2 Bedrooms / 2 Bathrooms totaling 86 bedrooms c. 10 Units of 3 Bedrooms /3 Bathrooms totaling 30 bedrooms d. 121 Units of 4 Bedrooms / 4 Bathrooms totaling 484 bedrooms 7. The final layout provides for a total of 9,818 SF of retail space initially with another 2,650 SF of space being constructed along Fry St. to allow for future retail' if the market dictates. G:/Work;/4820I/Fry Street - Gurney Dr. 6750 Hlllcrest Plaza Drive, Suite 325 Dallas, Texas 75230 (972) 490-7094 Fax(972) 490-70799 Exhibits Page 17 of 92 -x'16.^_010 11:40:51 AM Case#: Z10-0009 8. The final layout provides for a 6,408 SF clubhouse / leasing office along with 3 courtyards, or common areas. The total square footage of open space is 28,247 SF or 15.2W 9~. We are proposing to plant 5" caliper trees wherever possible based on our coordination with the Electric Company. 10. The proposed layout provides for variable width sidewalks on all 4 sides of the building. Sidewalks vary in width for several reasons. The minimum width is 5 feet along Hickory Street and Oak Street and 8 feet along Fry Street and Welch Street per City standards. The width increases in most locations to allow for greater pedestrian movement and there are several significantly larger areas that allow for sidewalk travel adjacent to patio areas. 11. The private drive which bisects the site is provided for fire protection, trash collection, and garage access from Hickory St. & Clubhouse / leasing access from Oak Street. It is gated' at the approximate midpoint to eliminate cut through traffic.. If you have any questions, please call'. Sincerely, Wnkeimann & associates, Inc. Michael D. Clark, P.E. President Cc; Josh V'asbinder Curtis Burnett Yaohua Yu Dharmesh Shah Michael Doggett G:/Worl</48201/Fiy Street - Gurney Ltr. Exhibits Page 18 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Fry Street Village Project Narrative Project Description/Summary Din/Cal 2, Inc. is proposing to re-develop the block bounded by Fry, Oak, Welch and Hickory lying within the Fry St. Overlay District as a mixed-use LEED Silver project. The development will include 194 residential units, approximately 9,700 square feet of retail, structured parking and associated right-of-way improvements. The project proposes to maintain the existing Cool Beans restaurant in its current location. Through design the project creates a sophisticated new urbanism look. The wide sidewalks produce a pedestrian friendly environment. The exterior architectural concept pays homage to the rich historic character of the area through the brick masonry, window lines for the retail store fronts, awnings, stoops and bay windows. The project will be developed in general conformance with the Fry Street Small Area Plan, but will require a few modifications to the existing Fry Street Overlay District. Site History The property has been utilized for retail facilities since the 1920's. More recent history has expanded these facilities to encompass much of the entire block. The area being at the edge of the campus has been provided uses to generally support the students and pedestrian activities in the area. Surrounding Property Uses The property is situated at the north end of campus. To the south are restaurants and shopping as well as university facilities. To the west is a mixture of commercial and residential uses. On the north side of Oak there are homes, churches and apartments. East of Welch is predominantly single family residential. Existing Site Conditions Topography The property generally slopes from Oak (N) to Hickory (S). There is approximately 5'-6' of relief from North to South. Exhibits Page 19 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Hydrology The site slopes in a uniform fashion. There are no creeks or channels. There does not appear to be any springs or groundwater seepage. Existing Land Uses The property has been partially cleared. The remaining uses consist of small shops along the north side of Fry Street and larger vacant retail at the corner of Oak and Welch and one single family home and vacant gas station at the corner of Hickory and Welch. Existing Circulation (Vehicle & Pedestrian) Circulation for both vehicles and pedestrians is provided by the perimeter street and sidewalk system. Existing Open Space Recreation & Preservation Area There are none present. EXISTING INFRASTRUCTURE & UTILITIES O-t-L.I.. 1Af-f There is an 8" diameter main in Hickory. There is an 8" diameter main in Oak Street. There is also a 4" diameter main in a portion of Welch Street and a 6" and 16" diameter main in Fry Street. Wastewater There are 8" diameter mains along both Fry Street and Hickory Street. Storm Drain Conduits are available in Fry Street and in Hickory Street Solid Waste Solid waste collection is not currently much of an issue for discussion as most of the facilities are vacant. Electric The site is effectively surrounded by overhead electric facilities Proposed Site Conditions Proposed Land Uses The site is bound on 4 sides by existing thoroughfares. No change to those grades is proposed. The site fall from north to south will be incorporated into the overall design and look of the units and retail fronting the streets. Exhibits Page 20 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Hydrology There is nothing to address here. Proposed Land Uses The full block is proposed as a mixed use development consisting of multi-family residential, street frontage retail and associated structured parking facilities. Proposed Circulation (Vehicle & Pedestrian) The perimeter street system will continue to provide most access. The development will encompass the block for the most part. This will allow for the numerous drives on site to be eliminated to provide access to the garage and the interior access way only. Pedestrian traffic will be encouraged to remain on the City streets. Sidewalks will be replaced on all frontages. Proposed Infrastructure & Utilities Potable Water Preliminary investigations by both the developer and the City of Denton indicate that the existing water system can supply the needs of development. Wastewater Sewer capacity appears to be available, however, additional analysis is necessary to fully confirm. Stormwater The site has been fully developed in the recent past. There is essentially no increase to impervious cover and therefore connections to the existing drainage system is to be the preferred design. Solid Waste A central compactor is planned for the entire project. It will be centrally located, screened and accessible per City Standards. Electric It is anticipated that the overhead facilities along Fry Street and Hickory Street will be relocated underground. The overhead line along the opposite (north) side of Oak Street will remain in place. Proposed Open Space, Recreation & Preservation Area The project will provide 3 courtyards for resident use. A pool is proposed within one courtyard Each will be landscaped using plant material and hardscape. Exhibits Page 21 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Proposed Mitigation Measures for Nuisance Abatement During construction, the project will comply with standard work procedures and City Ordinances related to work hours, noise, dust control, etc. Once operational, the project will provide for new, attractive facades on all four streets. The right of way will have new sidewalks and landscaping established for an urban look along the west portion of Oak, the length of Fry Street and the length of Hickory Street. There will be a more residential look with larger canopy trees along Welch Street and the easterly portion of Oak Street. Lighting will be provided along each roadway predominately through the City (DME) provided street lights. Lighting along the retail frontage at Fry Street and Hickory Street will be brighter as is typical for that type use. Denton Development Code i Fry Street Overlay We believe that, subject to certain modifications, the project is in substantial conformance with the purpose and intent of the Fry Street Overlay. The mixed use, pedestrian/urban oriented project will provide parking in a structured garage and maintain / increase on street parking permitted while providing the entire block (almost) with a uniform look and feel. This will include provisions for adequate and screened trash collection as well as perimeter sidewalks more conducive to safe pedestrian travel. Exhibits Page 22 of 92 -,'1(^_010 11:40:51 AM Case#: Z10-0009 FRY STREET OVERLAY MODIFICATIONS The proposed mixed use Fry Street Village project bounded by Fry Street, Oak Street, Hickory Street and Welch Street is located within the Fry Street Overlay District. This proposed project will necessitate several modifications to the district requirements. We believe approval of the requested modifications will not materially deviate from the purpose and intent of the Overlay District. In fact, these modifications will allow for the redevelopment of the block in general conformance with the purpose and intent of the overlay itself. The proposed modifications are as follows: PARKING Non-residential parking including residential shall be 1 space for each 400 square feet of floor area. Multi-family residential developments (mixed use or stand alone) shall be required to provide parking according to the following schedule: 1. Efficiency Units: One: (1.0) Space 2. Units with 1 Bedroom: One (1.0) Space for each bedroom 3. Units with 2 Bedrooms: One (1.0) Space for each bedroom 4. Units with 3 Bedrooms: One (1.0) Space for each bedroom 5. Units with 4 Bedrooms: 0.95 Space for each bedroom 6. Fraternities, Sororities, Boarding & Lodging Houses: One (1.D) space for each bedroom 7. Maximum Allowable Number of Spaces: The number of spaces provided by any particular use in ground surface lots shall not exceed the required number of spaced provided by this Subchapter unless approved by the Director of Planning and Development. Any spaces over the required number of spaces shall be constructed with pervious surfaces. Spaces provided on-street, or within the building footprint of structures, such as in rooftop parking, or under-structure parking, or in multi-level parking above or below surface lots, shall not apply towards the maximum number of allowable spaces. AREA & HEIGHT REQUIREMENTS Maximum building coverage - Mixed uses that include residences - 80% - Structured parking garages are specifically excluded from this calculation. FLOORIAREA RATIO Mixed uses that include residential 3:1 - Structured parking garages are specifically excluded from this calculation. REQUIRED YARDS Mixed uses that include residential shall have no required rear yard. Encroachments into yard areas, right of way or easement area may be permitted under separate right of way use agreement. Permitted encroachments may include, but not be limited to the following: A. Signs B. Canopies C. Awnings D. Stoops E. Grease traps G:/Work/4820I/FS Overtly Modifications Exhibits Page 23 of 92 -,'1(^_010 11:40:51 AM Case#: Z10-0009 HEIGHT REGULATIONS No habitable structure may exceed four (4) stories. No habitable structure may exceed 55 feet in height. Parking structures may exceed four (4) stories, however, may not exceed 60 feet in height. RESIDENTIAL DENSITIES Comply with City of Denton "DC-G" District regulations. SIGN REGULATIONS A. Prohibited Signs: Ground & Monument signs shall not be permitted within the District except as follows: At main drive entries to multi-family residential facilities. B. Allowed Signs 1. Non-Residential: Non-Residential signs may be mounted on the building wall perpendicular to the face of the wall. 2. Residential Residential signs may be mounted on the building wall perpendicular to the face of the wall. Signs shall be limited to the purpose of indicating the name of the residential development (apartment, condominium, etc.) or for informational or regulatory purposes. 3. Mixed uses that include residential: Refer to Items 1 & 2 above for allowable signage. LANDSCAPING While not a specific subheading in the overlay district we suggest the following modifications: 1. No specific landscape buffer yard shall be required adjacent to commercial properties. 2. No specific landscape yard shall be required adjacent to residential properties when separated by public right of way. We believe these allowances are more in keeping with the urban nature of the overlay area. 3. Specific canopy tree requirements may be waived when conflicts with electric lines preclude their placement. With written concurrence from DME and the City arborist of such conflict no ADP shall be required for the planting of ornamental trees and shrubs in lieu of canopy trees. Where these conflicts occur the required planting shall be as follows: 1 ornamental tree per 30 LF of frontage Ground cover or low growing shrubs where possible Pedestrian facilities such as benches or bike racks shall be provided Required landscape area shall be 7.5% Required tree canopy cover shall be 15% There shall be no required parking lot landscape or parking lot tree canopy coverage requirement if a parking garage is constructed. Surface parking lots shall remain subject to the 7% landscape area and 15% canopy coverage requirements. G:/Work/4820I/FS Overtay Modifications Exhibits Page 24 of 92 -x'16.^_010 11:40:51 AM Case#: Z10-0009 Exhibit 9 Letter from Applicant Regarding Parking Amendment Justification June 11, 2010 Jane E. Gurney, AICP Senior Planner Planning Division Planning & Development Department City of Denton 221 N. Elm Street Denton, TX 76201 Re; Fry Street Village Jane, Based on our requested parking modifications in creating the Fry Street Subarea, we will be required to provide 621 stalls (596 for residential and 25 towards retail). Our current plan calls for a total of approximately 668 spaces. We anticipate allocating 596 stalls towards our residents and the remaining towards the retail and guest. We believe the proposed parking totals are sufficient based on a number of reasons. The primary reason is our project's proximity to the University of North Texas. The closest student property to our location is City Parc at Fry Street, located at 1310 Scripture Street. This property currently uses approximately 95% of its available parking. The primary reasons for this are its proximity to campus and the International Students. Based on our parking totals we will park 96% of our residents. With regard to International students, which total over 2,500 as of fall 2009, many don't have cars and rely on other modes of transportation. Our Fry Street project will be the closest housing option for these students when it opens. Our propinquity to the UNT campus, along with project amenities will capture a large percentage of International students looking for off campus housing. We will also promote and utilize the existing mass transportation. As a project seeking LEER accreditation it's our mission to encourage alternative methods. The shuttle service provided by UNT has a route (Mean Green) that runs down Hickory Street. The 2009-10 fall and spring schedule was 7:15am - 10:33prn M-T and 7:15arn 5:30prn F. The approx 9,800 square feet of retail space will also enable re i _f-nt-. to find more services, i.e. food and beverage, closer to their residence further reducing the need for a car. Lastly, our residents will have assigned spaces, which will allow us to easily control the total number of cars and rernove cars illegally parking in our garage. .Also, the residential portion of the garage will only be accessible if you are a resident of the project. We hope this additional information helps in justifying our requested parking modifications to the Fry Street Subarea. Sincerely, Josh Vasbinder Exhibits Page 25 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Exhibit 10 Height Differential Exhibit for the intersection of Oak and Welch Streets ~e ^L L 4 i ~ r_f Ey a 7a7 { { mVy _i Exhibits Page 26 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Exhibit II Proposed Sign Elevations a P Exhibits Page 27 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 I, V Exhibits Page 28 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 c , r 7 W m N 7 a 7 5 T R E ET 15,-0" w r Exhibits Page 29 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 z , TM, Exhibits Page 30 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 I...Z„ T z D n O Exhibits Page 31 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Exhibit 12 Conceptual Elevations of Buildings at corner of Fry Street and Hickory Street I 1T1 t' rte rte:} m 0 e Y t,. T ^r' Q "T7 I _ ,n J ~ 90 r } 0 1 F i d ! t!~ { ' Cp•~'' 1 r~ fv T as ~ ti~,Y~y•~i~l E' a y ~y_ j 1r i ~.~-+»~t .•n it ~YYr,p-rC1~- 'i I,,f r`~~ T'"li ~ uIf ~ 1 l ~ l1 yr ~ } F T"~ ray ~ f Yq V ~y. lr 11 1 1 4 ~ _ I - I ~ ~A~~ k~i Ll tY Exhibits Page 32 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Exhibit 13 Conceptual Elevations of Buildings and Parking Structure on Oak Street ~Lo~ F I I{ 1 I':- I F_ =I , r F~- F { j I ~ LL; -1 rc n I I~ -Illy y. ~a ~ ~ rjl N- IT rr z R ~ I III f F1 ~ r. i a J r ! ill i ri1 V I r~ ~aI l'I ~i J A,~ III Exhibits Page 33 of 92 -,'1(^_010 11:40:51 AM Case#: Z10-0009 Exhibit 14 Architectural Image Board I I~~ I m 3 ~ m4 tlsV m R "Y9 A Q m 0 M 0 0 r z ~a Q E Ty- l ~ l f m 71 1 T a j r y v y°iv f r 7, o w ~ 7-M -9 m ss x Cy ~z ' L~~ ~F~•. P:{' Fri L..l 1 _.:I Exhibits Page 34 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 Exhibit 15 Tree Mitigation Calculations Calculations are based off what the existing trees on the subject site and what was removed prior to the proposed development. Mitigation is based off removing all Quality and Secondary trees below the minimum preservation requirements. Preservation requirements for both Quality and Secondary Trees do not meet preservation requirements in Subchapter '15. 13.7 in the DDC. Mitigation with Replacement Trees Mitigation by Tree Classification Protected Trees 203" x 2 = 406" Quality Trees 65 x 1.5 = 97.5," Secondary Trees 9.25" x 0.75" = 7" Total Mitigation 406°" + 97.5" + 7 = 510.5" Proposed Replacement Trees 34 replacement trees [)a 5" caliper 1701" of replacement trees Total Mitigation after Replacement Trees 510.5" - 1701" = 340.5„ Tree Fund Payment 340.5" x $125.0101= $42,562.50 Mitigation without Replacement Trees Mitigation by Tree Classification Protected Trees 203" x 2 = 406" Qual ty^ Trees 65" x 1.5 = 97.5" Secondary Trees 9.25°" x 01.75" = 7" Total Mitigation 406" + 97.5" + 7" = 510.5" Thee Fund Payment 510.5" x $125,00 = $63,812,501 Exhibits Page 35 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Exhibit 16 Draft Code Amendment Language Regarding the Standards for the Fry Street Overlay District Code references that are to be removed are shossn in red strikethrough text (e s and additions to the existing Code language are shown in blue text (blue text), sections that are unchanged, are shossn in black text (black text). Sections that do not apply exclusively to Subarea B are not included below. The entire content of the FiN- Street Overlay District, as proposed to be amended, are included in the attached Ordinance. 35.7.5 Fry Street Overlay District 35.7.5.1 Fry Street District Established. There is hereby established a special zoning overlay district to be known as the Fry Street District. The FiN- Street District is defined as that area approximately 12.42 acres in size which is bounded by Welch Street to the east, Oak Street to the North, Ave B to the north~v est, Ave A to the south~v est, MulberiN- Street to the south, and HickoiN- to the southwest - buildings, structures, sites, and properties within the designated district shall be subject to the restrictions, limitations, and provisions of the Fry- Street District regulations as provided for in d Section 35.7.5, and its subsections. The district is further divided into subareas A and B, as depicted in Exhibit 35.7.5.A. Each subarea is subject to distinct regulations, where noted herein. 35.7.5.4 Off-Street Parking. The provisions of Subchapter 14 shall apply to Subareas A and B of the Fry Street District, except as modified as follows: A. Remote parking. Remote off-street parking to serve a building or use within the Fry Street District may be provided on a tract or parcel of land other than on which the building or use being served is located, provided that the required off-street parking space shall be within one thousand (1,000) feet of the building or use being served and shall provide convenient pedestrian access to the building or use being served. B. Non-residential, including restaurant, retail, private club, on-premises sale of beer and/or wine: One space for each four hundred (400) square feet of floor area or one (1) space for each six (6) seats under maximum seating arrangements, whichever is greater. The provisions of Subchapter 14 shall apply to Subareas A of the Fry Street District, except as modified as follows: A. Multi family residential. The parking requirements of Subchapter 14 of the Denton Development Code apply, except that, multi-family residential development in subarea A only, shall be required to provide parking according to the following schedule: 1. Efficiency units: One and one-fourth (1.25) space 2. Units with 1 bedroom: One and one-half (1.50) space 3. Units with 2 or more bedrooms: One space for each bedroom 4. Fraternities, sororities, boarding and lodging houses. One (1) space for each bedroom 35.7.5.5.2. Area and Height Requirements. The provisions of Subchapter 5 shall apply to the Fry Street Overlay District, except as modified as follows: Exhibits Page 36 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 The provisions of Subchapter 5 shall apply to the Fry- Street Overlay District, except as modified for each subarea below: A. Minimum lot area Subarea A onht. 1. Residential uses: Six thousand (6,000) square feet. 2. Non-residential uses: No minimum lot area. 3. Mixed uses, including residential: No minimum lot area. B. Minimum lot depth Subarea A onht. 1. Residential uses: One hundred (100) feet. C. Minimum lot width Subarea A onht. 1. Residential uses: Sixty (60) feet. D. Maximum building coverage Subarea A onht. 1. Residential uses: 50% 2. Non-residential uses: 100% 3. Mixed-uses that include residences: 80% E. Floor Area Ratio Subarea A onht. 1. Residential uses: 3: 1 2. Non-Residential uses: 2: 1 3. Mixed-uses that include residential: 3: 1, provided that residential uses shall comprise the top story of any structure F. Required Yards Subarea A onht. 1. Residential uses: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: Minimum of 10 feet 2. Non-Residential uses: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: No required yard 3. Mixed-uses that include residential: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: Minimum of 10 feet for anv floor that includes residences G. Height Regulations. a. Subarea A onhj% No structure may exceed 3 stories. Overall building height, including HVAC equipment, roof systems, vent stacks, chimneys, etc., may not exceed 45 feet in height. b. Subarea B onhj% No habitable structure may exceed 4 stories, with an overall building height of 55 feet, including HVAC equipment, roof systems, vent stacks, chimneys, etc. H. Residential densities. a. Vubarea A onhj% The maximum number of apartment units that can be constructed on a site, while observing regulations including floor area ratio, building coverage, parking, height and setbacks, shall require a minimum land area in accordance with the following schedule: 1. Efficiency: 1,000 square feet 2. One bedroom apartment: 1,200 square feet 3. Each additional bedroom per apartment: 300 square feet b. Vubarea B onht. The maximum residential density of subarea B shall be 715 units per acre, where one (1) bedroom is equivalent to one-half (0.5) of a residential unit. L Parking :Structures -.Vubarea B onht. No parking structure may exceed 5 stories, or 60 feet in height. Mechanical equipment, including HVAC equipment, roof systems, vent stacks, and satellite dishes, may be mounted on the top stork- of parking structures, provided they are not visible from any adjacent public right-ofway. J. 35.7.5.7. Solid Waste Containers. Exhibits Page 37 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 A. Location. Solid waste containers in the Fig- Street District shall be located off the street in a centralized location, to the rear of a building served by the container, and shall be screened with devices made ofmasoniv or wood. B. Consolidation. Consolidation of containers is required of ever- owner, occupant, tenant, or lessee of any business, commercial, or institutional property, or other property not entitled to residential solid waste collection service. Each owner, occupant, tenant, or lessee of any business, commercial, or institutional property shall arrange, by contract with the city, commercial solid waste collection and disposal services from the city's solid waste division, except as other,, ise specified in Chapter 24 of the Code of Ordinances of the City of Denton, Texas. 4e-ef- igraT €g - of >a a C. Subarea shall provide adequate area to accommodate two (2) trash compactors to serve the Subarea, in a location specified by the approved site plan for the subarea. 35.7.5.8. Sign Regulations. 35.7.5.8.2. The provisions of pte 33 ~ *~~~,n Subchapter 15 shall apply to Subarea B, including the following: A. Prohibited signs. Ground and monument signs shall not be permitted within t Subarea A, but may be permitted in Subarea B, consistent with the limitations of 35.7.5.7.13.2, below. B. Allowed signs. L Fall signs. Wall signs in the Frv Street District may be permitted, subject to the following additional restrictions and limitations: a. Mounting and Orientation. All signs in Subarea A of the Fry Street District shall be wall mounted signs, mounted parallel with, and not perpendicular to, the face of the wall upon which the sign is secured. Wall signs in Subarea B may be mounted perpendicular to building faces, provided they do not encroach into public rights-of-way, b. Residential Vubarea A onht. Signs associated with residential uses in subarea A of the Frv Street District Signs shall be limited to the purpose of indicating the name of the residential development (apartment, condominium, etc.) or for informational or regulator-- purposes, c. Mixed-uses that include residential Vubarea A onht. Signs associated with mixed uses in subarea A of the Frv Street District shall be alloyed only on those stories of a building that include non-residential uses. 2. Monument sites Vubarea B onhj% Monument signs, not exceeding 15 square feet of effective area, may be permitted at entrances to mixed use developments, as depicted in the site plan for Subarea B (Exhibit 35.7.5.13). 3. Desitn Vubarea B onht. Signs in Subarea B shall be in a style and size consistent with the conceptual designs provided in Exhibit 35.7.5.1). _H___.: Exhibits Page 38 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 35>7>5.9> Tree reservation and Landscaping Requirements for Subarea only: The following requirements apply- to Subarea B: A. Landscaping. Subarea B shall provide landscaping as depicted in Exhibit 35.T5.C. 35>755.10. Architectural Standards for Subarea B only: The following requirements apply to Subarea B, in addition to any other requirements provided by code or ordinance: 1. Residential Units fronting Welch Street will be required to incorporate sloped roof pitches. 2. Each principal facade or massing area shall incorporate at least two (2) of the features identified on the image board (Exhibit 35.71.), including but not limited to: L Store front design ii. Awnings iii. Stoops on the street level iv. Accent bav windows v. Cornice details vi. Brick facades with flat roof lines vii. The incorporation of a bench and street tree in front of the building viii. Arch details ix. Shutters 2. Parking Strlretures will be provided with a facade designed to mimic the adjacent buildings within the subarea, so as to assist in integrating the structure into the balance of the subarea, and to assist in camouflaging the stnreture from the public right-of-way. Exhibits Page 39 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Exhibit 17 Notification Exhibit and Responses from Property Owners within 200 feet Ll- 1 t l m _w a HICKORY pus 1N~ R,,CpM MULBERRY-_ (200 Faat Natifiaatian Limit UI SYCAMORE 500 Foot Notification Limit I, Legend Fry t- t Overlay Dist-t n Favm Public Notification Date: June 13, 2010 200' Legal Notices* sent via Certified Mail: 41 Number of responses to 200' Legal Notice: ■ In Opposition: 0 ■ In Favor: 14 ■ Neutral: 1 * - A copy of the notification list is available at City Hall West, 221 N. F1m Street. Denton. TX Exhibits Page 40 of 92 -t'1(^_010 11:40:51 AM Case#: Z10-0009 FROM :AMF CCIM FAX NO. :9725991102 Jun. 14 2010 01:43PIl P1 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Strast Overlay District; the Fry Street Overlay District (Section $5.7.5. of the Denton Development Code) Is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references in the teat of the overlay district (OCA10-0004) and to create a subarea for a proposed mixed use development located on the block hound by Oak, Hickory, Fry, and Welch Streets (Z1t1-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 5:30 p.m- in the City Council Chambers of Co Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) fear of the subject property, the Planning and Zoning Commission would like to hear how you •fuel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken Into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from allending and participating in the public hearing.) You may fax 4 to the number located at the bottom or malt it to the address below or drop it off in-person: Planning talvlelon 221 N. Elm Street Denton, Texas 16201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request Opposed to request Reasons for pposttton: Signature: u e c Printed Name: Alk"I f-, fry' r/ _tyC r _ Mailing Address: „ 61 o l V (o 112'14? 7 City, Slate Zip: P4 Ali ` J v.7 C f Telephone Number g 7.2 ^ !!~'9 9 - 1149'3 - Physical Address of Property within 200 feet: / O / 1 d /tilt' CITY OFDENTO)V, TEXAS CITY HALL WEST - DENTON, TEXAS 76201 + 940.349.8547 • (F) "101.349.770 2,Ai Paz. W&G Exhibits Page 41 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references in the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you awn property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feet about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to reque~ Opposed to request Reasons for Opposition: Signature: ag J Printed Name: Mailing Address: G City, State Zip:< Telephone Number: ~~/ZJ - 03 l Physical Address of Property within 200 feet: CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 940.349.8641 (F) 940.349.7707 2490'P&7 Notice Exhibits Page 42 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references in the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feet about this request and invites you to attend the public hearing. Please, In order for your opinion to be taken into -account, return-this form wilh-your comments prior to the date-of the public hearing. - (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off In-person: Planning Division 221 N. Elm Street Denton, Texas T6201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please cirole one: C In favor of request Neutral to request Opposed to request Reasons for Opposition: Signature: Printed Name: Mailing Address: City, State Zip: Telephone Number: Fry Street Partners, LTD by Edwin Freedman 4545 Bissonnet Street Bellaire, Texas 77401 713.417-1318 Physical Address of Property within 200 feet 1225 west Oak Street CITY OF DENTON, TEXAS CITY HALL WEST - DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 200' P&Z Notice Exhibits Page 43 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references in the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feet about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, retum-this form-with-your comments prior to the date of the public hearing. - (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mall it to the address below or drop It off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please cirole one: 6i favor of request Neutral to request Opposed to request Reasons for Opposition: Signature: z,„J~ t L' t ~f Printed Name: Fry Street Partners, LTD by Edwin Freedman Mailing Address: 4545 Bissonnet Street City, State Zip: Bellaire, Texas 77401 Telephone Number: 713-417-1318 Physical Address of Property within 200 feet: 1206 West Hickory Street CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 • (F) 340.349.7707 200' P&Z Notice Exhibits Page 44 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references In the text of the overlay district (DCA10.0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (710-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p,m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feet about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into zccount, return-this form with-your comments prior to the date of the public hearing, -.(This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop It off in-person: Planning Division 221 N. Elm Street Denton, Texas 76207 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please cirole ones =favor 70f request Neutral to request Opposed to request Reasons for Opposition: Signature: Printed Name: Fry Street Partners, LTD by Edwin Freedman Mailing Address: 4545 Bissonnet Street City, State Zip: Bellaire, Texas 77401 Telephone Number: 713417-11318 Physical Address of Property within 200 feet: 1217 West Oak Street CITY OF DENTON, TEXAS CITY HALL WEST - DENTON, TEXAS 76201 - 940.349.8541 • (F) 940-349.7707 200' P&Z NOUCe Exhibits Page 45 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5, of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references In the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. In the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into -account, returwthis form with youf comments prior to the date of the public-hearing.-(.This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request Opposed to request Reasons for Opposition: Signature: Printed Name: Fry Street Partners, LTD by Edwin Freedmen Mailing Address: 4545 Bissonnet Street City, State Zip: Bellaire, Texas 77401 Telephone Number: 713-417-1318 Physical Address of Property within 200 feet: 1204 west Hickory CITY OF DENTON, TEXAS CITY HALL WEST - DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 20or P&Z 140t+ce Exhibits Page 46 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5, of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references In the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the fry Street Overlay District. The public hearing will start at 6:30 p.m, in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into mccount, retum-this form with your comments prior to the date of-the public hearing. -(.This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 70201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. In faLor rReasons for Opposition: Please cirole one: Neutral to request Opposed to request Signature: Printed Name: Fry Street Partners, LTD by Fdwin Freedman Mailing Address: 4545 Bissonnet Street City, Stale Zip: Bellaire, Texas 77401 Telephone Number: 713.417-1318 Physical Address of Property within 200 feet: 1120 West Hickory CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 200' P&Z Notlce Exhibits Page 47 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references In the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would tike to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return-this form with-your comments prior to the date-of the public hearing, _(This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please cirole one: In favor of request Neutral to request Opposed to request Reasons for Opposition: Signature: Z ' ~itXL1 - Printed Blame: Fry Street Partners, LTD by Edwin Freedman Mailing Address: 4545 8issonnet Street City, State Zip: Bellaire, Texas 77401 Telephone Number: 713-417-11318 Physical Address of Property within 200 feet: 1218 - 26 Hickory Street and 106 Fry Street CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 (F) 940-349.7707 200'P82 N(WCe Exhibits Page 48 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 NOTICE OF PUBLIC WEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references In the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 D. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, In order for your opinion to be taken into account, retumrthis form-with-your comments prior to the date of the public hearing, -.(I'his in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please cirole one: In favor of request Neutral to request Opposed to request Reasons for Opposition: Signature: Printed Name: Fry Street Partners, LTD by Edwin Freedman Mailing Address: 4545 Bissorret Street City, State Zip: Bellaire, Texas 77409 Telephone Number: 713417-9318 Physical Address of Property within 200 feet: 1112 Fry Street CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 713201 • 940.349.9541 • (F) 940.349.7707 200' P&2 Notice Exhibits Page 49 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references in the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. In the City Council Chambers of City Ball located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would tike to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, retwwlhis form with-your comments prior to the date of the public hearing=-.(.This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop It off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. _ Please circle one, In favor of reques-t_D Neutral to request Opposed to request Reasons for Opposition., Signature: Printed Name: Fry Street Partners, LTD by Edwin Freedman Mailing Address: 4545 Bissonnet Street City, State Zip: Bellaire, Texas 77401 Telephone Number: 713 417-1316 Physical Address of Property within 200 feet: 114 Fry Street CITY OF DENTOW, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 200' P&Z Nofrca Exhibits Page 50 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references In the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, In order for your opinion to be taken into account, returrmthis form-wftyeur comments prior to the date of the public hearing,-.(.This in no way prohibits you from attending and participating In the public hearing.) You may fax It to the number located at the bottom or mail it to the address below or drop It off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. _ Please circle one: In favor of request Neutral to request Opposed to request Reasons for Opposition: Signature: Printed Name: Fry Street Partners, LTD by Edwin Freedman Mailing Address: 4545 Bissonnet Street City, State Zip: Bellaire, Texas 77401 Telephone Number: 713-417-1318 Physical Address of Property within 200 feet: 101- 111 Welch Street C17 Y OF DENTON, TEXAS CITY HALL WEST DENTON, TEXAS 76201 • 940.349.8541 (F) 940-349.7707 200 P84 Notice Exhibits Page 51 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 NOTICE OF PUBLIC WEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, Juno 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references in the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, returrrthis form with-your comments prior to the date of the public hearing,-.(-This in no way prohibits you from attending and participating in the public hearing.) You may fax It to the number located at the bottom or mail it to the address below or drop It off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please cirole one: In favor of request Neutral to request Opposed to request Reasons for pposltlon: Signature: ~j Printed Name: Fry Street Partners, LID by Edwin Freedman Mailing Address: 4545 Bissonnet Street City, State Zip: Bellaire, Texas 77401 Telephone Number: 713-417-1318 Physical Address of Property within 200 feet: 1211 west Oak Street CITY OF DENTON, TEXAS CITY HALL WEST - DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 200' PU Notice Exhibits Page 52 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references In the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Pleaso, in order for your opinion to be taken into -account, return-this form with your comments prior to the date of-the public hearing. -(This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mall it to the address below or drop it off In-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn; Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and appose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: in favor of request Neutral to request Opposed to request Reasons for Opposition: Signature: Printed Name: Fry Street Partners, LTD by Edwin Freedman Mailing Address: 4545 Bissannot Street City, State Zip: Bellaire, Texas 77401 Telephone Number: 713-417-1318 Physical Address of Property within 200 feet: 1235 oak Street CITY OF DENTON, TEXAS CITY HALL WE5T • DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 260' P&'Z Notice Exhibits Page 53 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references In the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feet about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return-this form with-your comments prior to the date of the public heating.-(This in no way prohibits you from attending and participating in the public hearing.) You may fax It to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request opposed to request Reasons for Opposition: Signature: Printed Name: Fry Street Partners, LTD by Edwin Freedman Malling Address: 4545 Bissonnet Street City, State Zip: Bellaire, Texas 77401 Telephone Number: 713417-1318 Physical Address of Property within 200 feet: 1231 West oak street CITY OF DENTON, TEXAS CITY HALL WEST • DENTQN, TEYAS 76201 940.349.8541 • (F) 940-349.7707 200' P&Z Notice Exhibits Page 54 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 NOTICE OF PUBLIC HEARING Fry Street Overlay District The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, June 23, 2010, and consider making a recommendation to the City Council regarding an amendment of the Fry Street Overlay District; the Fry Street Overlay District (Section 35.7.5. of the Denton Development Code) is an area with regulations specific to the Fry Street area. The proposed amendments are to update Code references in the text of the overlay district (DCA10-0004) and to create a subarea for a proposed mixed use development located on the block bound by Oak, Hickory, Fry, and Welch Streets (Z10-0009), as shown on the attached map. The subarea will create a set of regulations specific to the proposed mixed use development, and will not alter the regulations which govern the remainder of the Fry Street Overlay District. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feet about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in-person: Planning Division 221 N. Elm Street Denton, Texas 76201 Attn: Jane Gurney, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request Opposed to request Reasons for Opposition: Signature: iyu_ Printed Name: ~ C, 6f 't 1^ / ! Mailing Address: n ~ IC 1 S City, State Zip: L/ L12 rt/ t- 7x Telephone Number: 0 5 r Physical Address of Property within 200 feet; CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 • (F) 940,349,7707 200• PsZ Noric Exhibits Page 55 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Exhibit 18 Meeting Minutes from Neighborhood Meeting held January, 2010 City of Denton Fry Street Neighborhood Meeting Minutes City Council Chamber January 27, 2010 L Call to order Assistant City Manager, Fred Greene called to order the meeting at 6:30 on January 27, 2010 in City Council Chamber at 215 E. McKinney Street. IL Roll call The following persons were present: Fred Greene, Assistant City Manager Jim Engelbrecht, Council Member Mark Cunningham, Director, Planning & Development Department Brian Locldey, DRC Administrator Katia Boykin, Neighborhood Planner Jane Gurney, Project Manager III. Introduction Fred Greene introduced the staff members that were present. He stated that this type of meeting between the developer and the neighborhoods is something new the city is trying to implement. This will allow the neighborhoods to have more input into potential developments in their areas. This meeting will allow the developer to receive input, prior to designing the proposed project. Mr. Josh Vasbinder representing the Dinerstein Company will conduct the meeting. Brian Locldey, DRC Administrator, will walk through the aisle with the microphone for the audiences use. IV. Developer's Presentation a) Mr. Vasbinder introduced himself and thanked city staff for setting up this meeting with the neighborhood. b) Dinerstein Company is based out of Houston, Texas. They have been in business for about 57 years. Dinerstein is a privately owned organization. Their address is 3411 Richmond Avenue, Houston, Texas. c) They are proposing a development at 1231 W Oak in the Fry Street area. d) Dinerstein Company has built at least 40 different student housing projects. They submitted a Pre-Application in December to the Planning Division to get the ball rolling and to receive input into the requirements, challenges, and to surmise the impact of this type of development. They received their city comments on December 31, 2009. e) They have not purchased the property as of yet. It is under contract. They are not obligated to purchase this property. f) This will be a LEED Silver project. All of their projects follow the green standard. This is not a required standard that they have to follow. Exhibits Page 56 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 V. Public Input (Question & Answer) a) Anita Brno asked that Mr. Vasbinder elaborate on the type of project that they are proposing. Mr. Vasbinder stated that they are proposing a student housing project on this location. How big or how small this project will be has not been determined. They are proposing multi-family student housing and retail. They did not originally submit a mixed used project, but they are open to having a mixed use component. They are doing pre- due diligence meeting with people in the community. They will have to ask for a 12-15 ft height amendment to the Fry Street Overlay to add a fourth floor to their proposed project in order to accommodate mixed use. Retail will be on the bottom with 3 floors of residential above. It would be located at the intersection of Fry and Hickory. b) Cecil Harwell asked about the residential (4 story) being located on the Oak and Welch and retail on Fry Street and Hickory along the bottom. Mr. Vasbinder responded that he could not speak on what happened in the past. The goal is to move forward. This is the opportunity to develop this vacant dirt lot into something positive for the community. This is an A plus location. This can be a catalyst to future growth and opportunities in Denton. The Fry/Hickory intersection makes sense to utilize for retail, but that is the side that will be transitioned due to the height and zoning. The transition will take place between Oak and Hickory. If the community thinks that a two-story transition would work better, they will look into it. They are not proposing any retail on Welch. To clarify and make it clear, they are definitely open to the mixed use concept. Cecil asked another question(unclear-not on the microphone) Mr. Vasbinder responded stated that they are open to incorporating local businesses into the project. He referenced an example called Fuzzy Taco. As a family organization, they are open to incorporating the local businesses that will succeed and thrive in this type of environment. This is a long term investment for Dinerstein. c) Lauren Womack asked about the variance of three-stories to four. She asked for an approximation of the total height. Mr. Vasbinder responded that the approximate height would be 55 to 60 ft on the Fry/Hickory side and 50 to 55 ft on the Welch side. Lauren asked about the compromise between the retail and residential. She asked if the retail would compensate for what they might lose in lack of beds. Mr. Vasbinder responded that it really would not compensate. Due to additional parking requirements and other improvements. Lauren stated that she is all about this being retail. Suggested that there be retail all along the bottom. Exhibits Page 57 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 d) Elise Ridenour stated that she went on their website and noticed that some of their developments are SRO Student housing with single room occupancy. Are you willing to negotiate the necessity of not renting by the bed vs. by the unit? Mr. Vasbinder responded that Dinerstein is not a SRO. They are open to renting by the unit and not just the bed. Elise asked if they could be something in writing. She believes that this is a big concern for this community. Mr. Vasbinder stated that they are open to making it a condition. e) Heather Abbott asked if Dinerstein was open to community based amenities like parks, small green areas, benches, pedestrian oriented things, etc. Mr. Vasbinder responded that they are open to developing a sense of place, but there are limits like the cell tower. As part of their retail they are looking at a courtyard open spaces with tables and outdoor seating. They are open to this idea. f) Jesse (Last name not given) just wanted to thank Mr. Vasbinder for being here. Jesse and his friends are looking forward to this development. Mr. Vasbinder thanked him. g) Kevin Roden asked about the 5 story parking stricture in the original plan. Mr. Vasbinder responded that this was preliminary. Their goal is to try to keep the height to a minimum. Their hope is to keep the parking stricture at or near the 45 ft limit. It will not be as high as what was proposed on the original plan. h) Lauren asked another question about the parking and traffic issues. Mr. Vasbinder stated that they understand that parking is a concern. They anticipate that there will be a surplus of parking. They are hoping to lower the impact to traffic. They are willing to do creative things for energy, parking, and traffic. i) Patrice Lyke stated that she is happy with the suggestion of mixed use. She believes that the new proposed development will be used. Mr. Vasbinder thanked her for her kind words. j) Erin O'Toole asked what is the longest the company has been running a development? The second question is what is done to make sure that the apartment complex remains attractive and a vital place where students would want to live? Mr. Vasbinder stated that they are very proactive in their management style. Their company is family owned. Along with a full time staff, they have Community Assistants (CA's) that help manage the facility. By using full-time students as CA's, they feel that it helps to control the normal rowdiness that is associated with student housing. Their facilities are managed very similar to hotels. It is built with the highest standards and it will be managed with high standards. Exhibits Page 58 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 k) No name given. He referenced a movie called "Up" and asked if everyone was familiar with the development project in Seattle that the movie was based on. Within the movie, a residential home was surrounded by concrete walls. He wanted to know how they would integrate with the existing businesses, like Cool Beans, that are presently in this location. Mr. Vasbinder responded that they have the majority of the property under contract with the previous developer, United Equities. They have not talked with the owners of Cool Beans, so possibly, they will build around it. Their objective is to integrate their development into what is pre-existing at this location. 1) Kati Trice stated that she is happy about the mixed use, but what about the other dynamics in the area? She felt that they are targeting just one group and that is the student population. There more facets to this community. Mr. Vasbinder stated that they hope to bring all of the groups together. Fair Housing does not allow for that type of marketing; they will market and rent to whoever is qualified and whoever wants to rent an apartment. They plan to offer a range of 1 to 4 bedroom apartments. They are hoping to offer a variety to the community. Kati's second question. A need that she sees is more community areas, mini conference space, meeting space, open space, and natural environments. Mr. Vasbinder stated that those are things that we will consider. m) Devin Taylor has lived in Denton about 17 years and he is telling a story about UNT facing Fry Street and some of the history. His question is about the parking. Can the parking be decreased? Mr. Vasbinder stated that he agrees, but that is not his call. The answer would have to come from the city. Brian Locldey, DRC Administrator, responded stating that the city would be open to evaluating the numerous parking opportunities that are available. The city would have to wait until Dinerstein submits in order for us to make a decision pertaining to the parking requirements. It would have to be based on what is best for the city and the community. Mr. Vasbinder stated that this is kind of a delicate balance. They want to provide enough parking, but not too much. By not providing enough parking, it could cause a problem with the other businesses in the area. n) Howard Draper asked about the bike parking availability and how much the project would provide. Presently, UNT has about 3,000 bike rack spots. Mr. Vasbinder responded they do not currently have bike parking, but they are open to providing bike racks and incentives to the residents. They are willing to meet offline about the bike space. Exhibits Page 59 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 Howard asked about bringing cultural maturity to the environment. Opening the area up to other citizens that are not students. Possibly patio restaurants. Mr. Vasbinder responded okay. o) Tammy Bassham asked how they propose to attract the local businesses to their project and are there any ways to protect the option for the local businesses vs. the big chains? Mr. Vasbinder responded that their effort to reach the local business owner's is through the Chamber of Commerce. They are open to working with the local business owners just as much as the big chains. p) Phil Kregel asked a several questions. He asked what type of communication is going on with UNT. He asked about the requirements of working with the city concerning the traffic issue in relation to retail. Mr. Vasbinder responded that they are communicating with UNT just like they are communicating with the city. As of yet, they have not done a traffic analysis. They are willing to create and promote a walkable community/pedestrian friendly area. The retail component will be based on the demand of the area. The purpose of this meeting with the neighborhood is to determine the needs of the area. q) Darlene Mullenweg is happy about the retail component of this project. She thinks that they are limiting themselves by calling it a student housing development. She believes that this is a good model. Mr. Vasbinder responded that it not just for students. It is open to whoever would like to rent there. They are not necessarily limiting the project to just a student facility. r) Taylor Saperito considers this area sacred. He asked if they are open to facilitating the growth of the arts. He suggested a type of venue that would allow the local musicians and artists to be seen. Mr. Vasbinder responded that they would be open to this suggestion and that they would look into trying to incorporate this into their project. He offered his email and phone for this discussion to continue offline. s) Jake Haygood asked about noise codes and the requirements and limitations. Brian Locldey responded that there are limitations within the code and this will be considered with Dinerstein's submittal to the city. t) Nancy Viens asked what is going to happen to the remaining buildings on the block. Mr. Vasbinder responded that the barber shop and one other owner is not in-line with this project. They are talking with the owners trying to get them on board with this project. We feel that it would be beneficial for all if everyone is on board. The property along Oak is under contract. Exhibits Page 60 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 Brian Locldey spoke of the Downtown Implementation Plan and how the music and arts could possibly be incorporated into that project. He also invited the citizens to participate in the upcoming meetings. u) Pati Haworth believes that local businesses could be successful in this area. The opportunity should be offered to the other businesses that have been displaced from the previous proposed project. The rents will have to be affordable if you are interested in having a local business within your project. Also, Pati asked who are the investor's for this Fry Street Project. Mr. Vasbinder responded that the equity is provided by the Dinerstein family. They are always looking for investors. Mostly it is banks funding the development. If there are people that are interested in investing, please contact him. v) Salty Rishel stated that he wanted them to be aware of the historical nature of the area and the adjacent, Oak- Hickory Historic District. It is important that the architecture is visually compatible with the historical nature of the area. Salty asked about the excess parking. He is curious as to how with the mixed use, people are coming and going to the retail portion and not feel that your parking will be taken up by students. Mr. Vasbinder stated that the parking will be segregated. There will be different entrances. They are open to any suggestions. Upon their return, they should have something a little more specific. He will be back on February 17tH Salty stated he is concerned about the contradictions that he is hearing. Salty stated that the property owners on Welch and Hickory owned by Joe Normile have not been contacted as of yesterday. Mr. Vasbinder responded that he had met with the owner this afternoon. They go into these projects as build and hold developers. Their plan is to keep their assets. They have sold some assets in the past. That is not the situation here unless someone just came and offered them a whole lot of money to get out of the business. They plan to be around. w) David Wright asked about the preliminary plans that can be viewed. He also asked about the parking component. Mr. Vasbinder stated that they had a site plan that was submitted with their pre- application, but after this meeting that will probably be trashed and they will start over. He is hoping to have something for review prior to the February 17th meeting at 6:30 p.m. They will evaluate the pedestrian component of this project x) Vicki Oppenheim stated that she is pleased with the mixed use concept and LEED standards. She is hoping that they can find a way to incorporate community space, maybe an art space for local artist and musician, or maybe even a gallery. Mr. Vasbinder responded asking for clarification-something like a gallery space, public space where you can show art work. He is open to that. y) Charles Stafford asked about the appraised value that will be added to the tax rolls. Exhibits Page 61 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 Mr. Vasbinder stated that it would be about $600,000 in paid taxes. Charles asked what is the appraised value, not what is paid in taxes. He approximated about $20 million. Mr. Vasbinder agreed that it would be about $20 million. z) Mary Anderson has concerns about traffic, parking, nice pretty windows to look in, single unit rental, wanting more walking space. She would like to stay in this development, but she is not a student. She feels that she is discriminated against because she is not a student. Mary feels that 586 bedrooms is a lot for such a small space. Mr. Vasbinder responded that this is not only for students. If you are a qualified renter, Fair Housing states that we have to rent to you. aa) Peggy Capps stated that he is saying all the right things, but how much clout do you have in the company and can you back what you are saying up? Mr. Vasbinder responded that he has the power to make decisions. He is the only owner that is not a Dinerstein. He is a development partner. He can't promise everything, but he will take this back to the other partners and figure out the best way to tackle this. Peggy asked if they would consider lowering the height of what they are proposing down to the code requirement of 45ft on the Welch. Mr. Vasbinder stated that they are open to the suggestion. Peggy stated that they would be willing to work with them and support them, if they were willing to lower the height on the Welch side which is across from the historic area. Mr. Vasbinder stated that they will show a simulation of what they are proposing. There will be no retail on Welch and that it will be no higher than the Evers house. Peggy asked if this development will be architecturally compatible with the area. Mr. Vasbinder agreed that there will be no retail on Welch and it really should be on the Fry side. Their hope is that the development will be architecturally compatible with the existing area. bb) Donna Morris asked about the change in traffic in their previous developments before and after, and directed to the city, what is the change in traffic before and after. She is wondering if they will be able to get out of their drive ways. Mr. Vasbinder stated that her question is valid, but he is not prepared to answer that question. He would be happy to get that information and get it to her. Exhibits Page 62 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Brian Locldey apologized to Mrs. Morris, that he was unable to answer her question as well, but that he could get her information and pass it along to the right department to get the answer and forward that information on to you. cc) John Morris asked what is the 1 year, 3 year, and 5 year occupancy and what does it run for something like this? Did you do your homework about doing business here? Mr. Vasbinder responded that they believe there is a need for this type of project with this city. The rents will not be any higher than what is already in the area. He will provide the proposed rents next time. They are looking at this as a long term project. dd) Question from the audience. If you did due diligence, why did you not come with mixed use in the beginning? Mr. Vasbinder responded that they made a mistake initially and they are trying to fix the issue. ee) David Wright wanted to make sure that they knew about the other historic district on Jagoe Street. He just wanted to make sure that he was aware of the facade requirements by the city and the Historic Landmark Commission. Mr. Vasbinder thanked him for the information and they will look into it. ff) Audience question-Citizen did not use microphone. Mr. Vasbinder responded that he did not have the unit mix, but he will have it on the 17th gg) Question from the audience. Citizen did not use microphone. Mr. Vasbinder responded that typically no. They generally use a model to determine the number of bedrooms per unit; however, they do not have renderings at this time. hh) Kati Trice asked about the need of a caf6 and grocery in the area. She wanted to encourage green roof or community gardens, and asked if they and done this before. Mr. Vasbinder responded that they have not done green roof or community gardens before. It was not used for credit in their LEED point system previously, but this is a good suggestion. ii) No name provided. He wanted to stress the necessity of pedestrian areas and gave two examples of other developments; one in Dallas and one in Addison. Mr. Vasbinder responded thank you. jj) Bob Clifton stated that has been around for about 65 years and that he can speak with some authority. He said that he will probably be his nemesis. He stated that he has not heard anything about open space. He asked if they would be willing to do a joint venture with the city. He asked if they would share their investments and would you be willing to be bought out. He expressed concerns about site contamination, cookie Exhibits Page 63 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 cutter development from community to community; He has concerns about the traffic issues in that area. He has petition circulating for the city to purchase the property. Mr. Vasbinder responded that he appreciates the feedback. If you have knowledge of any type of contamination, he would be happy to talk with you about it. kk) Discussion pursued regarding the cell tower and Inland Developers. 11) No name provided. She stated that this is the most important endeavor. She did not want to threaten Mr. Vasbinder, but expressed how important this area is to the people here. Mr. Vasbinder responded that he can hear that in the comments that have been expressed tonight throughout the audience. This is going to be as transparent as possible and we will have as many meetings as necessary. Mr. Josh Vasbinder provided his contact information to the audience. josh.vasbinder@dmcdomcdevelopers.com 858-337-1618 cell phone VI. Adiournment Fred Greene thanked everyone for coming out tonight. He adj ourned the meeting around 8:15 p.m. Exhibits Page 64 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 Exhibit 19 Meeting Minutes from Neighborhood Meeting held February 17, 2010 City of Denton Fry Street Neighborhood Meeting Minutes City Council Chamber February 17, 2010 VII. Call to order Assistant City Manager, Fred Greene called the meeting to order at 6:30 pm on February 17, 2010 in the City Council Chamber at 215 E. McKinney Street. VIII. Roll call Staff present: Fred Greene, Assistant City Manager Mark Cunningham, Director, Planning & Development Department Katia Boykin, Neighborhood Planner Jane Gurney, Project Manager IX. Welcome and Introduction of staff members Fred Greene introduced the staff members that were present. He gave a synopsis of what would be discussed during the meeting tonight. At the conclusion of the presentation, the floor will be opened up to questions from the audience and he asked that each person that would like to speak, please come to the microphone, so that each question could be heard clearly and answered properly. Fred Greene introduced Josh Vasbinder, Dinerstein Company. X. Presentation Josh Vasbinder introduced Brian Dinerstein from the Dinerstein Company. He gave a brief statement. Brian Dinerstein stated that they are very passionate about this project. He explained that Josh Vasbinder is a partner of their company and that he is authorized to speak and make decisions just like he does. Brian Dinerstein turned things over to Josh Vasbinder at this point. Josh Vasbinder gave a presentation that consisted of all the various site plans. He discussed the original submission that was made to the city that did not contain any retail. Each plan reflects the various changes that have been submitted or suggested by the neighborhood. In the original site plan, there was no retail. Second site plan incorporated retail and added the cell tower back into the project. The Fry Street Overlay District only allows three story buildings. They realized that the fourth floor is necessary to make the project feasible. With the continued feedback that they are receiving, this is still considered a work in progress. The final site plan contains a two story clubhouse located in the interior of the project, setbacks of 100 ft for the cell tower, 4200 sq ft retail pad, 1800 sq ft outdoor patio area, added 5500 sq ft of retail along hickory, and 15 ft sidewalk on hickory. This will allow for a pedestrian field. Along Fry there will be the same width for the sidewalk and Oak will go to 10 ft as you get closer to the residential area. They took the photos that they received and tried to incorporate some of the design aspects as much as possible. Josh Exhibits Page 65 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Vasbinder appreciated the photos that were provided to them that actually showed what Fry Street use to look like. Josh Vasbinder went on to discuss the various elevation of each street and explained what it will look like. They are creating a more walkable and pedestrian friendly area. XI. Questions/Input from Audience A. Eli Gemini asked about the accessibility of the building, lighting, handicap access, and safety. Josh Vasbinder responded that the security will be handled. The apartments will only be accessible by the residents only. They will have lighting in place for safety. They could possibly have additional lighting. They will be ADA compliant. The buildings will have ramps. There intent is to comply with all ADA standards and provide the necessary safety. B. Question from the audience about interior Brian Dinerstein responded that the interior will be very nice. Each unit will have all black appliances, granite counter tops, vinyl in the kitchen, and ceramic tile in the entry way. It will be nicer than anything that is on the market right now. They will build a product that they can put their name on and stand behind it. C. Josh Pherigo asked for an explanation of what LEED Silver is and what it means. Josh Vasbinder responded the US Build Green Council came up with LEED (Leadership in Energy Efficient Design). There are a number of things that can be incorporated into a project to meet certain LEED standards. The levels consist of silver, gold, and platinum. He stated that the new fire station is a gold LEED project. Points are accumulated throughout the project by incorporating water saving 5 star appliances, capturing rain water and using it on the site, and solar panel. D. Darlene Mullenwag asked about the parking garage, balconies and the access of the balconies, and she asked about bike accessibility. She believes that bike racks are very important and she did not see any on the site plan. Josh Vasbinder responded that there are two entrances to the garage, and it is a four story stricture, with parking on the top floor. The balconies will only be accessible from the interior. They are incorporating bikes into their plans. E. Phil Kregel asked about the rent for residential and commercial Josh Vasbinder responded that the one bedroom apartments will be about $950 a month two bedrooms will be about $1350, three bedrooms about $1850-$1900, and four bedrooms are about $2300-2400 a month. The utilities are included in the rent. They feel that their rents are comparable to the area. F. Someone from the audience asked about the project being smoke free Exhibits Page 66 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 Josh Vasbinder responded that he would love it and they will look into it. It would depend on the market place accepting that. G. Joe Gregory asked if they have any LEED projects Josh Vasbinder responded that applying LEED to residential is very new. They have some projects that are still pending LEED status once the projects are complete. They are LEED pending. H. Adam Rosaheld asked about the number of new business that will be a part of your proj ect Josh Vasbinder responded that there should be about 7-8 on the low end and on the high end is about 10-12 new business. They are will to work to bring to bring in the local businesses versus the larger chains. They are working with local real estate agents to accomplish this. L Peggy Capps asked about the height of the building on Welch Street and how it compares to the height of the Evers house. She also asked about the number of units. Josh Vasbinder responded that they are guessing until everything is finalized, but they believe that they are no higher, or possibly even with the highest point of the Evers house. Josh Vasbinder stated that the total number of units is 194. There will be 20 one bedrooms, 40 two bedrooms, 18 three bedrooms, and 116 four bedrooms. Josh Vasbinder stated that they are requesting to amend the overlay district by requesting an additional floor or height on this project. On the corner of Fry and Hickory the elevation is 55 feet. The retail space there will be about 14 ft from floor to ceiling. On the corner of Oak and Fry, the elevation is 50 ft there is a 6 ft slope along Oak to Hickory. The elevation is 55 ft at Hickory and Welch. There is a 10 ft sidewalk on Welch and sidewalks will be 18 ft and 10 ft in some areas of Oak. J. Questions from the audience-unable to hear questions Josh Vasbinder walked away from the microphone to respond. K. Mary Anderson asked about the private drive, how wide is it, is it gated, the entrance and exit of the garage, and where are the air conditioner units going to be. She is a little bit disappointed about the number of four bedrooms. She also wanted to know why there only 5ft of sidewalk on Welch. She liked the Fry Street Elevation slide. Josh Vasbinder responded that drive is 28 ft wide and it will be gated. It is also for fire access. He showed her where the entrance and exit of the garage is shown on the site plan. The compressor units will be on the roof. Brian Dinerstein responded to her question about a guarantee that they will not sell the apartments by the room. He stated that it could possibly be under a deed restriction or maybe the city could add it as a restriction. Exhibits Page 67 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 L. Devin Taylor asked about covenants (SUP), and he asked that if they get approved would they be willing to add covenants on specific height requirements within their SUP. He asked if they would be willing to include a certain amount of glass within their project. Brian Dinerstein responded that it seems redundant, but yes they would be willing to have the restriction added. He stated that the glass request could be added as well. Josh Vasbinder also stated that this plan has not gone to city. They can agree at this point to making modifications and inserting various restrictions. The city will still have to give their okay. M. Chris Jensen asked if they have spoken to any of the local businesses. He is worried about some of the larger businesses getting in before the local businesses have the opportunity. Josh Vasbinder responded that they have contacted some of the local brokerages, the chamber, and others to kind of see what is needed in the area. They would like for the local businesses to have an opportunity, instead of some big company moving in. N. Steve Reddish is wondering if the 5500 sq ft going to be enough space. He asked if there would be a Laundromat, washer and dryers in the units. He stated that he did not see anything like that in the plan. He asked about the cost of the four bedroom units. He stated that they should look at adding some efficiencies or studios. He did not feel that anyone could really afford the quoted pricing and long term marketability of the four bedroom units. Josh Vasbinder responded that the units have washer and dryers. The retail portion is actually 9700 sq ft. It is just broken into two different areas. If the demand is there, we are open to adding the Laundromat. Brian Dinerstein responded to efficiency question that they could look at adding some efficiency units. He feels that the four bedrooms is more affordable. He did not feel that a family would want to live in an apartment. He felt that it would be more affordable for the students splitting the rent. 0. Audience questions-unable to hear Josh Vasbinder stated that they don't foresee needing any other SDP's for this project, but it will be a wait and see as they go through the process and review with the city. P. Audience questions-unable to hear Josh Vasbinder gave the definition of an SRO. Q. Pati Haworth asked for the projected cost of this project and the cost as it relates to the rents. She is wondering what the status is with the Joe Nomile property. She asked if Cool Beans is going to be included with this project. She asked them about looking at a national retail store for the retail area. Exhibits Page 68 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 Josh Vasbinder stated that the more the project cost equals more revenue for the city. He stated that they appraised value is about a million dollars. The Joe Nomile property is under negotiations and they will not be pursuing Cool Beans. They are trying to find local businesses to utilize the retail area. Brian stated that it is over 30 million to build this proposed project. He is hesitant to give the exact amount because they are still not sure of what they will be allowed to build. R. Eli Gemini is asking about the fire escapes. Josh Vasbinder responded that the stairwells are interior. Fires Standards will be incorporated in the project. The stairwells will not be seen from the exterior. S. No name given-She asked about the difficulty of filling the retail with such high rents. She asked if they would start looking for bigger retail, if the locals could not afford the rent. Josh Vasbinder replied that they feel that their rents should be comparable to the area. There is a possibility of a larger chain coming in that would allow for the offset of rent for the smaller local business. Brian stated that they are a little higher than what is listed across the street, but that is to be expected with the new building. T. Question from the audience. Josh Vasbinder responded that there would be assigned parking for residential only. U. Chris Jensen stated that the drive through is great. He is happy with retail aspect. V. Kati Trice stated that she sees how you have tried to incorporate the retail and pedestrian areas. She likes what you have proposed. She is wondering why you don't make this property gold or platinum LEED instead of silver. She would like solar panels. She likes the way you have incorporated trees into the project. She would like to see a community garden, green roofs, greenery on the outside of the parking garage incorporated in the project. Geothermal is something she would like to see. She does not see any music or art incorporated. She asked if they are open to the public. Josh Vasbinder responded there would be no solar panels. That was only a method in which you can achieve LEED points. Brian Dinerstien stated that insulation will be included. Geothermal is included. In the club area, there will be sound proof rooms for music. There will be an art room. Deciding whether it is open to the public is a good question. It has not been decided. W. Audience question-Do you have a walkway from the garage and residential Josh Vasbinder responded yes, they will have what is called a sky bridge Exhibits Page 69 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 X. Question from the audience-Possibly Elise Ridenour-how many parking spaces are there and the number of bedrooms Josh Vasbinder responded 194 units, 618 bedrooms and 687 parking plus the surface spots which are about 9. The parking garage is four levels and then there is parking on the top deck and it is not covered. Y. Chris Jensen asked about being able to congregate and not be considered loitering. Josh Vasbinder responded that it will be up to the retail user. They will look at park benches and patio. Z. Kati Trice asked about bike parking and covered bike parking. She stated that it is a necessity. She expressed the need for a community meeting space. Josh Vasbinder responded the city has requirements and they are trying to exceed the requirements. They are looking at it. They have the space and if it can be used by the retailers, they will try to use some of the space to incorporate this. In reference to the meeting space, he said okay. AA. No name given-asked about a public stage area for community events. Josh Vasbinder and Brian Dinerstein said okay and thanked him for the discussion. BB. Elise Ridenour wanted to revisit the parking 618 bedrooms and 687 parking spaces. She wanted to know if all of the parking is for residential. She asked for the exact number. Josh Vasbinder responded that the parking is shared. He stated that he could not give her a final answer because the parking is based on the retail. Brian stated that there is plenty of parking for this project. CC.Question from the audience. Josh Vasbinder stated that they will have a meeting hopefully in March and submit to the city. They will submit to get feedback from the city and they will submit for everyone to review prior to the official submittal. DD. Question from audience about traffic study. Josh Vasbinder stated that will be done after they make an official submittal. XII. Wrap Up Josh Vasbinder thanked everyone for coming out and they feel real lucky to have this opportunity to receive the feedback. Brian stated that they will do what they say they will do. He appreciates the input. Exhibits Page 70 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 XIII. Adiournment Fred Greene asked that the attendees make sure that they signed in on the sheets at the front in order to allow staff to contact you about the upcoming meetings. He adjourned the meeting. Exhibits Page 71 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 Exhibit 20 Meeting Minutes from Neighborhood Meeting held May 17, 2010 City of Denton Fry Street Neighborhood Meeting Minutes City Council Chamber May 17, 2010 XIV. Call to order Director, Mark Cunningham called the meeting to order at 6:28 pm on May 17, 2010 in the City Council Chamber at 215 E. McKinney Street. XV. Roll call The following persons were present: Fred Greene, Assistant City Manager Mark Cunningham, Director, Planning & Development Department Brian Lockley, DRC Administrator Chuck Russell, Interim Planning Manager Katia Boykin, Neighborhood Planner Jane Gurney, Project Manager XVI. Welcome and Introduction of staff members Mark Cunningham introduced the staff members that were present. He gave a synopsis of what would be discussed during the meeting tonight. Jane Gurney, the case planner, will give a presentation that will contain an overview of the Fry Street Overlay District and Zoning, the updates to the Overlay District, the creation of a subarea, and details of the proposed development for the subarea. Mr. Cunningham stated that the portion of the presentation pertaining to the details would be done jointly by Jane Gurney and Josh Vasbinder of the Dinerstein Company. At the conclusion of the presentation, the floor will be opened up to questions from the audience and he asked that each person that would like to speak, please come to the microphone, so that each question could be heard clearly and answered properly. XVIL Presentation Jane Gurney introduced herself as the case planner for the Fry Street Project. She gave a presentation that discussed the overview, updates, and the creation of a subarea for the development. Jane explained the purpose of the overlay district and the zoning. She explained that the ordinance adopting the Fry Street Area recognized the important role that the Fry Street Area plays in the community, as well as in the lives of many college students. She stated that the regulations designed to aid in redevelopment and revitalization are in place to maintain development that is compatible with, and preserves the unique character in the Fry Street District. Jane Gurney explained the zoning of the area within her slide presentation and gave a comparison to the regular zoning of Downtown Commercial General (DC-G) and the Fry Street Overlay District. This showed the difference between the two zonings. Exhibits Page 72 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 The updates to the Overlay District consisted of the following • Correct reference to Solid Waste Ordinance -Proposed by staff • Correct reference to Sign Ordinance-Proposed by staff • Create a `subarea' to define the standards of the proposed Fry Street Village project- Proposed by Dinerstein The corrections proposed by staff will not change any content or any other property within the district. The update proposed by Dinerstein will help define the standards their development will be subject to. Staff suggested that the subarea be created. This subarea will not affect any of the other properties within the overlay district. They are proposing residential uses along Fry Street, Welch Street, West Oak Street, and West Hickory Street. There will be retail along West Hickory and a portion of Fry Street on the ground floor, with residential above. The parking garage will be in the middle of the development. Mr. Vasbinder introduced himself. At the previous meeting, the neighbors requested retail on the ground floor. They are showing that on this plan. They are proposing approximately 9,818 square feet of retail. They have also identified a portion of the residential (2300 sq. ft.) as potential retail. This will be setup for future use for retail, if there is a demand. They have brought in Alex Payne a local real estate agent. They will have 2 restaurant uses with an outdoor patio space for at least one of the restaurants. They have incorporated a walkable area that was requested at a previous meeting. They have removed the existing curb cut by Cool Beans and moved the entrance of Cool Beans. These changes will allow better parking and remove the impact issues. The cell tower will stay the same. They are creating a new easement for access to the tower. They are conforming to the requirements of the city regarding cell tower setbacks. Mr. Vasbinder explained the details of the subarea request and how they are requesting that residential building be allowed to exceed the overlay requirement of three stories. They are asking for four story buildings. Proposed residential buildings will not exceed 55 feet in height, so they are requesting an additional 10 feet of building height. The other portion of the subarea pertains to the parking. Currently, in the code there has to be one parking space for every 6 seats for restaurant uses. This is hard to determine right now without knowing what type of business will be in the retail space. They have asked the city to use the ratio of one parking space for every 400 sq feet of retail to help determine the parking required. The ground level of the parking garage should support the retail. Right now they are looking at one parking space for every 150 sq ft. They are requesting the density, height, and parking amendments. They discussed the parking garage. It will be four stories and it will not exceed 60 ft. they have created a third story crossway bridge for access to the garage for residential units. Jane mentioned that the signup sheets are at the front entrance and she asked that they please sign in to receive updates. XVIII. Questions/Input from Audience Exhibits Page 73 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 A. Kevin Roden asked about the density difference in relation to the overlay district. Jane responded that the base zoning is DC-G and it allows 150 units per acre. They are not exceeding the density under the base zoning. The overlay does not have requirements for density. They will be modifying the requirement for open space for each unit type. Kevin Roden stated that he was reading from the overlay district provisions under H and it refers to residential density and square footage of a one bedroom apartment. He would like to know if this is changing. Jane responded that it will be changing under the subarea. The provision refers to open space and lot coverage versus density. Under the subarea, it will be replaced with base density. B. Bob Clifton asked about the advantages of this project to the neighborhood. Josh responded it is in the eye of the beholder. They believe that it is an advantage to the area because they are taking an undeveloped site and revitalizing the area. It is kind of like the rising tide affect. By revitalizing the area, it will have a positive effect on every business in the area. Bob Clifton asked several question. He first wanted to know about the impact studies. He wanted to know if they had been done and if so, where are they. Where is basic traffic and pedestrian count studies for Oak, Hickory, Fry Street, and Welch? Where is the electrical power going to come from? Where is the sewer and water going to come from? What about the ingress and egress of traffic from the 60 ft parking garage dumping either from Oak into the garage, or out of the garage onto Hickory? Jane Gurney responded that they have not official submitted a TIA for this project. They have done a preliminary traffic generation study and it has been reviewed. The engineers for DRC and the Traffic Engineer have determined that the streets will likely sustain this project. The water and sewer capacity is preexisting to serve this project. The developer has agreed to foot the cost for the new electric lines underground on Fry, Hickory, and Welch. Bob Clifton asked, is the city promising this group any economic incentive? Jane Gurney responded not to her knowledge. Bob Clifton asked, Is there is form of taxpayer funds being used to fund this project? Josh Vasbinder responded no to his question. C. Andy LaViolette asked about sidewalks being slightly off scale. Is this accurate? How much is the range for the proposed rent for the unit. Josh Vasbinder responded that this is a conceptual plan and it has been updated on the submittal to the city. The sidewalks will vary from 6 to 8 ft throughout. In reference to the proposed rents, he will provide this information from the previous minutes. It was discussed at a previous meeting and they really have not changed. Exhibits Page 74 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 mm) D. Robert Boler asked if this would be a LEED certified project. He asked about the safety and security of the parking garage. He asked about the noise level of this area with residential. Josh responded that this is a LEED Silver project. The second floor of the building will be gated off. The first floor will be for retail and guest. The building will be secured. They have tried to move the residential away from the retail with the residential being on upper levels. Also, there will be buffers. E. Donna Morris asked about the total number of parking spaces in the area. Josh Vasbinder responded that it is about 701 parking spaces. F. Someone from the audience asked about the breakdown between retail. Josh Vasbinder responded 589 stalls oriented towards residential, 85 retail, and 7 stalls will be allocated towards the leasing office. G. Donna Morris asked about the entrances and exits. She also asked about a traffic light. Josh Vasbinder responded that there is a primary entrance on Oak Street. Also, another access point is off Hickory that will serve retail and residential. Jane responded in reference to the light and it looks like a light may be placed at Welch and Oak Street. This information will be confirmed with the TIA at the time of platting. H. Mike Sutton asked about guest parking Josh Vasbinder responded that it is included in the 589 number. Josh Hogan asked about other retail and the timeline. Josh Vasbinder responded that they are looking for local retail. He expressed some ideas of how this will work. They anticipate breaking ground sometime in the first quarter of next year. J. Darlene Mullenueg asked about bike space and about residential units having open balconies. What are the restrictions on the balconies? Josh responded that they have ample room in the corridor to allow for bikes. Josh stated that they will have open balconies. Jane responded that are restrictions like there is no barbeque grills allowed on the balconies. K. Shaleah Poster asked about the additional floor and parking. Josh Vasbinder responded that they felt that it makes sense and prudent to the project. They do not want to negatively affect the area. They feel that they have done a good job of transitioning to the residential. Exhibits Page 75 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 L. Joe Nomile asked how much do you think this project will generate for this city. Josh Vasbinder responded that it is approximately $700,000. M. Andy LaViolette asked about there being music on the roof of Cool Beans and how it would affect the project. Josh Vasbinder stated that they will have a landscape buffer. N. Bob Clifton asked about their estimated taxes going up about $100,000 Josh Vasbinder responded that adding the retail caused the increase. 0. Bob Clifton asked during constriction what is to be done about rerouting traffic on Oak, Hickory, Fry Street, and Welch and what studies have you done on that. What has been put in place to compensate the owner while constriction is being done? He asked, what is the purpose of creating a subarea to the overlay district? (Questions grouped together per his request) Jane responded that they are a private developer, so they have to complete the project to make money. She responded to the question concerning the subarea stating that yes it was an option for the developer, but staff felt that the subarea was a better option to regulate according to the code. Staff did not feel that what was requested is in violation of the spirit of the overlay plan. Josh Vasbinder responded that they are will to work with anyone that is affected by the constriction of this project. He mentioned again that this will be LEED Silver project, so there are certain criteria that will be followed. P. Robert Boler stated that since the question was brought up about the noise level in reference to Cool Beans, he wanted to share his concerns about the music and being unable to sleep when he lived close. Josh Vasbinder responded that they will definitely look into it. He appreciates him bringing it up. Q. Brandon Adams how will you respond to the community when they realize that you are proposing a downtown Dallas. It will affect the music and arts. He asked have to every lived in Denton or been on Fry Street when it was thriving. Would you be willing to add music or arts to this project? Josh Vasbinder responded that his personal opinion is that this project will not take away from Denton. Josh stated that he has never lived in Denton. He stated that the businesses that were there previously are welcomed to come back. Adding arts to this project was discussed previously and decided that it was a little hokie. Mark Cunningham mentioned the DTIP that is going on right now and how arts and music are being included along the Hickory Street Corridor. This is also being included in the Rayzor Ranch Development. Exhibits Page 76 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 R. Salty Rishel stated that they would like to see more historic visual and asked what the width of the private drive between Oak and Hickory. He asked about handicap requirements. He asked about the streets handling the traffic. Salty does not feels that it is compatible with the area. He has some concerns about traffic on Oak and people going the wrong way on the one way street. He feels that four stories are too high for the area. Josh Vasbinder responded that the width of the street is 24 feet. This street is meant for a fire lane. He asked if there were some specific ideas that he was wanting and stated that they could discuss it later offline. Josh stated that they have created a stacking area that will allow stacking inside the garage instead of on the street. He stated that they will look into ways to make traffic clearer. S. Josh Hogan made statement that this project might be a sound barrier instead of a deterrent. XIX. Adiournment Mark Cunningham explained the process and explained that this will go to public hearing to the Planning and Zoning Commission and the City Council. He asked that they make sure that they are signed in and that way we can share information with those that are not in the notification areas. Mark Cunningham thanked everyone for coming out tonight. He adjourned the meeting around 7:31 p.m. Exhibits Page 77 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 EXHIBIT 21 ORDINANCE ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING SECTION 35.7.5 OF THE DENTON DEVELOPMENT CODE (FRY STREET SPECIAL PURPOSE OVERLAY DISTRICT), TO REVISE AND UPDATE GENERAL PROVISIONS, ESTABLISH SUBAREAS, AND TO REVISE ZONING AND DEVELOPMENT STANDARDS APPLICABLE TO A 4.381 ACRE SUBAREA, GENERALLY BOUNDED BY THE INTERSECTIONS OF FRY, HICKORY, WELCH AND OAK STREETS ("SUBAREA B"); AUTHORIZING THE DEPOSIT OF $63,812.50 IN TREE MITIGATION FUNDS BY THE DEVELOPER OF SUBAREA B, FOR USE BY THE CITY TO ACQUIRE, PLANT, IRRIGATE AND MAINTAIN TREES IN PUBLIC SPACES WITHIN A ONE-MILE RADIUS OF SUBAREA B; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS HEREIN; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, amendments for the entire 12.42 acre Fry Street Special Purpose Overlay District, created by Ordinance 2000-044, and codified as revised at Section 35.7.5 of the Denton Development Code, has been initiated by the City ofDenton in order to update and correct references contained therein; and WHEREAS, Dinerstein Companies, Ltd, has initiated the rezoning process for that certain 4.275 acre area described by metes and bounds in Exhibit "B", attached hereto, to be designated as "Subarea B", with the remainder designated as "Subarea A"; and WHEREAS, on June 23, 2010, the Planning and Zoning Commission conducted a public hearing and recommended approval of the requested Fry Street Overlay District modifications; and WHEREAS, on July 20, 2010, the City Council held a public hearing as required by law and approved the changes in the Fry Street Overlay District, as defined herein; and WHEREAS, the City Council finds that the change is consistent with the Denton Plan and the Development Code; and WHEREAS, upon consideration of facts presented at the July 20, 2010 public hearing, the City Council finds, pursuant to the standards and criteria set forth and referenced in Denton's tree mitigation ordinances, that tree mitigation funds in the amount of $54,062.50 are owed as a consequence of the unpermitted clearing of trees by the prior owner of Subarea B, contrary to said ordinances, as well as the proposed clearing of additional trees; however, due to the infirm condition of certain trees proposed to remain in place, this amount is likely to increase to $63,812.50, if these remaining trees die within the next three years; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference as true. SECTION 2. Section 35.7.5 of the Denton Development Code entitled "Fry Street Overlay District" is hereby amended to read as follows: Exhibits Page 78 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 35.7.5 Fry Street Overlay District 35.7.5.1 Fry Street District Established Exhibit 35.7,5,A. Fry Street Overlay District Subareas 35.7.5.2 Purpose and Intent, The purpose and intent of this overlay district is to promote the public peace, safety, cleanliness, and general welfare for community members and patrons of the Fry Street District, by providing for PAGE 2 J z iK K m 0 w ~ H14KORY W MULBERRY f.1U LHERtiY INNEfY CRM"S - 1-Q -0 There is hereby established a special zoning overlay district to be known as the Fry Street District, The Fry Street District is defined as that area approximately 12.42 acres in size which is bounded by Welch Street to the east, Oak Street to the North, Ave B to the northwest, Ave A to the southwest, Mulberry Street to the south, and Hickory to the southwest. All buildings, structures, sites, and properties within the designated district shall be subject to the restrictions, limitations, and provisions ofthe Fry Street District regulations as provided for in section 35.7.5, and its subsections. The district is further divided into subareas A and B, as depicted in Exhibit 35.7.5.A. Each subarea is subject to distinct regulations, where noted herein. Exhibits Page 79 of 92 -'1(^_010 11:40:51 Ab1 Case#: ZIO-0009 regulations on off-street and remote parking, the location of solid waste containers, and the regulation of signs, setbacks, and residential and commercial density. 35.7.5.3 Off-Street Parking. The provisions of Subchapter 14 shall apply to the Fry Street District, except as follows: A. Remote parking. Remote off-street parking to serve a building or use within the Fry Street District may be provided on a tract or parcel of land other than on which the building or use being served is located, provided that the required off-street parking space shall be within one thousand (1,000) feet of the building or use being served and shall provide convenient pedestrian access to the building or use being served. B. Non-residential, including restaurant, retail, private club, on premises sale of beer and/or wine: One space for each four hundred (400) square feet of floor area or one (1) space for each six (6) seats under maximum seating arrangements, whichever is greater. C. Multi family residential - Subarea A only. Multi-family residential development in subarea A shall be required to provide parking according to the following schedule: 1. Efficiency units: One and one-fourth (1.25) space 2. Units with 1 bedroom: One and one-half (1.50) space 3. Units with 2 or more bedrooms: One space for each bedroom 4. Fraternities, sororities, boarding and lodging houses. One (1) space for each bedroom 35.7.5.4 Area and Height Requirements. The provisions of Subchapter 5 shall apply to the Fry Street Overlay District, except as modified for each subarea below: A. Minimum lot area - Subarea A only: 1. Residential uses: Six thousand (6,000) square feet. 2. Non-residential uses: No minimum lot area. 3. Mixed uses, including residential: No minimum lot area. B. Minimum lot depth -Subarea A only: 1. Residential uses: One hundred (100) feet. C. Minimum lot width - Subarea A only: 1. Residential uses: Sixty (60) feet. D. Maximum building coverage - Subarea A only: 1. Residential uses: 50% 2. Non-residential uses: 100% 3. Mixed-uses that include residences: 80% PAGE 3 Exhibits Page 80 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 E. Floor /Area Ratio -Subarea A only: 1. Residential uses: 3:1 2. Non-Residential uses: 2:1 3. Mixed-uses that include residential: 3: 1, provided that residential uses shall comprise the top story of any structure F. Required Yards - Subarea A only: 1. Residential uses: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: Minimum of 10 feet 2. Non-Residential uses: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: No required yard 3. Mixed-uses that include residential: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: Minimum of 10 feet for any floor that includes residences G. Height Regulations. 1. Subarea A only. No structure may exceed 3 stories. Overall building height, including HVAC equipment, roof systems, vent stacks, chimneys, etc., may not exceed 45 feet in height. 2. Subarea B only. No habitable structure may exceed 4 stories, with an overall building height of 55 feet, including HVAC equipment, roof systems, vent stacks, chimneys, etc. H. Residential densities. 1. Subarea A only. The maximum number of apartment units that can be constructed on a site, while observing regulations including floor area ratio, building coverage, parking, height and setbacks, shall require a minimum land area in accordance with the following schedule: a. Efficiency: 1,000 square feet b. One bedroom apartment: 1,200 square feet c. Each additional bedroom per apartment: 300 square feet PAGE 4 Exhibits Page 81 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 2. Subarea B only. The maximum residential density of subarea B shall be 72.5 units per acre, where one (1) bedroom is equivalent to one-half (0.5) of a residential unit. 1. Parking Structures - Subarea B only. No parking structure may exceed 5 stories, or 60 feet in height. Mechanical equipment, including HVAC equipment, roof systems, vent stacks, and satellite dishes, may be mounted on the top story of parking structures, provided they are not visible from any adjacent public right-of-way. 35.7.5.5 Multi-Family Uses. Multi-family residential uses shall be allowed within any zoning district within the Fry Street District. 35.7.5.6 Solid Waste Containers. A. Location. Solid waste containers in the Fry Street District shall be located off the street in centralized locations, to the rear of buildings served by each container, and shall be screened with devices made of masonry or wood. B. Consolidation. Each owner, occupant, tenant, or lessee of any business, commercial, or institutional property, or other property not served by residential solid waste collection service, shall contract with the City for shared or consolidated commercial solid waste collection and disposal services, unless otherwise required by ordinance. C. Subarea B shall provide adequate area to accommodate two (2) trash compactors to serve the Subarea, in a location specified by the approved site plan for the subarea. 35.7.5.7 Sign Regulations. The provisions of Subchapter 15 of the Denton Development Code, as hereafter amended, superseded or replaced, shall apply, except as modified for each subarea below: A. Prohibited signs. Ground and monument signs are prohibited within Subarea A, but may be permitted in Subarea B, consistent with the limitations of 35.7.5.7.B.2, below. B. Allowed signs 1. Wall signs. Wall signs in the Fry Street District may be permitted, subject to the following additional restrictions and limitations: a. Mounting and Orientation. All signs in Subarea A ofthe Fry Street District shall be wall mounted signs, mounted parallel with, and not perpendicular to, the face of the wall upon which the sign is secured. Wall signs in Subarea B may be mounted perpendicular to building faces, provided they do not encroach into public rights-of-way. b. Residential - Subarea A only. Signs associated with residential uses in subarea A of the Fry Street District Signs shall be limited to the purpose of PAGE 5 Exhibits Page 82 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 indicating the name ofthe residential development (apartment, condominium, etc.) or for informational or regulatory purposes. c. Mixed-uses that include residential -Subarea A only. Signs associated with mixed uses in subarea A of the Fry Street District shall be allowed only on those stories of a building that include non-residential uses. 2. Monument signs -Subarea B only. Monument signs, not exceeding 15 square feet of effective area, may be permitted at entrances to mixed use developments, as depicted in the site plan for Subarea B (Exhibit 35.7.5.B). ~ r nmam PPPNiii f ~s a ,1 0 9!R Exhibit 35.7.5.B. Subarea B Site Plan PAGE 6 Exhibits Page 83 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 3. Design ---Subarea B only. Signs in Subarea B shall be in a style and size consistent with the conceptual designs provided in Exhibit 35.7.5.C. Exhibit 35.7.5.C. Subarea. B Conceptual Sign Renderings PAGE 7 Exhibits Page 84 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 Exhibit 35.7.5.C. Subarea B Conceptual Sign Renderings - Continued ter- a*i PAGE 8 Exhibits Page 85 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 35.7.5.8. Landscaping Requirements for Subarea B only: A. Landscaping. Subarea B shall provide landscaping as depicted in Exhibit 35.7.5.D. ~•rt t I~J w~ 8 t J, I - 7 pp 3 t e i _IB c *Ma a C W q4N W5 y ~ q W E sra Exhibit 35.7.5.D - Subarea B Landscaping Plan 1. Store front design 2. Awnings 3. Stoops on the street level 4. Accent bay windows 5. Cornice details 6. Brick facades with flat roof lines 7. The incorporation of a bench and street tree in front of the building PAGE 9 35.7.5.9. Architectural Standards for Subarea B only: The following requirements apply to Subarea B, in addition to any other requirements provided by code or ordinance: A. Residential Units fronting Welch Street shall incorporate sloped roof pitches. B. Each principal facade or massing area shall incorporate at least two (2) of the features identified on the image board (Exhibit 35.7.E.), including but not limited to: Exhibits Page 86 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 8. Arch details 9. Shutters. Vol A PL-tit Fia,~ v [..-i _.3 :f~~E4 EERPH &TIXIP56A£EiflEEB 1 1 i r 1 l l (P rr f I m 1 , ~ ~ r m y 1 en., i" 1 t t AtA -:~a9. a ,Am ARC- l AV, RES 7M Exhibit 35.7.5.E. Subarea B Architectural Image Board D. Parking Structures will be provided with a facade designed to mimic the adjacent buildings within the subarea, so as to assist in integrating the structure into the balance of the subarea, and to assist in camouflaging the structure from the public right-of way. 35.7.5.8 Conflict with Other Regulations. To the extent the provisions of this article conflict with any other ordinances of the City of Denton, the provisions of this article shall control. All provisions of other City of Denton ordinances not in conflict with this article shall remain in full force and effect. PAGE 10 Exhibits Page 87 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 SECTION 3. The 12.42 acre area previously designated in Ordinance 2000-044 as the Fry Street Overlay District is hereby divided into Subareas A and B. The 4.381 acre portion of the previously designated 12.42 acre Pry Street Overlay District is legally described in Exhibit B to this Ordinance, which is attached and incorporated herein by reference. Said 4.381 acre portion is hereby designated as Subarea B, and the remainder of the previously defined Fry Street Overlay District is hereby designated as Subarea A. Subareas A and B, as herein defined, shall hereinafter be subject to the Denton Development Code, including the particular zoning requirements associated with the base zoning classifications and use designations previously determined for the parcels therein located, except as otherwise provided in the amended terms of the Fry Street Overlay District, set forth in Section 2 of this Ordinance.. The City's official zoning map is hereby amended to show the subareas within the Fry Street Overlay District, along with the base zoning classifications and use designations previously assigned to the parcels therein located. SECTION 4. In consideration of the findings made in the recitals to this ordinance, the developer of Subarea B shall deposit tree mitigation funds in the amount of $63,812.50 into a special fund, for the use of the City's Parks and Recreation Department for the acquisition, planting, irrigation and maintenance of trees in public areas lying within a one-mile radius of Subarea B. Within Subarea B, no preliminary or final plat may be approved, nor may any development or construction permit be issued, until the developer of Subarea B has fully satisfied this obligation. Should any of the trees proposed for preservation within Subarea B survive three years post-deposit, in a condition deemed healthy by the City's Urban Forester, or an arborist selected by the City, the developer may request a proportionate rebate for those healthy trees, not to exceed $9,750. SECTION 5. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 6. Any person violating any provision ofthis ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 7. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City ofDenton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2010. MARK A. BURROUGHS, MAYOR PAGE 11 Exhibits Page 88 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: PAGE 12 Exhibits Page 89 of 92 -'1(^_010 114051 AM Case#: ZIO-0009 APPROVED AS TO LEGAL FORM: EXHIBIT A EXHIBIT A . p d Lj LJ Z.. ED OWN ❑D 'I' I ° o jI m° I T, i 1 saw. cl) L T- r-, PAGE 13 Exhibits Page 90 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 EXHIBIT B FIELD NOTE DESCRIPTION - SUBAREA B STATE OF TEXAS § COUNTY OF DENTON § BEING a tract of land situated in the E. PUCHALSKI SURVEY, ABSTRACT No. 996, in the City of Denton, Denton County, Texas, and being all of TRACT NO. 1 of I. BOYD RIDGWAY ADDITION, an addition to the City of Denton according to the plat recorded in A-167-1 of the Map Records of Denton County Texas (MRDCT); being all of LOT 1, BLOCK 1 of LOVELESS ADDITION, an addition to the City of Denton according to the plat recorded in Cabinet U, Page 106 (MRDCT);being all of the land described in a deed to Fry Street Partners Ltd. by deeds recorded in 2006-140850 and 2006-57118 of the Deed Records of Denton County, Texas; being a tract of land described in a deed to Joe Normile as recorded in Volume 677, Page 703 of the Deed Records of Denton County, Texas and the land described in a deed to Normile Family Partners, Ltd. as recorded in 93-0061936 of the Deed Records of Denton County, Texas, being a tract of land described in deed to Eugene Hartman as recorded in Volume 887, Page 252 of the Deed Records of Denton County, Texas, and being more particularly described as follows: BEGINNING at an "X" cut in concrete set at the intersection of the southerly right-of-way line of WEST OAK STREET (60 foot right-of-way) and the westerly right-of-way line of WELCH STREET (45 foot right-of-way), said point being the most northeasterly corner of said I. BOYD RIDGWAY ADDITION; THENCE along the westerly right-of-way line of said WELCH STREET South 00 deg 24 min 17 sec West; a distance of 320.01 feet to an "X" cut in concrete set in the northerly right of way line of West Hickory Street (60 foot right-of-way) said X being the southeasterly corner of said JOE NORMILE tract; THENCE along the northerly right-of-way line of said West Hickory Street South 89 deg 58 min 36 sec West; a distance of 436.20 feet to a 112 inch iron rod found in the easterly line of a tract of land described in a deed to OPELL ESTELLE LOTT as recorded in Volume 4881 Page 0160 DRDCT; THENCE along the easterly line of said OPELL ESTELLE LOTT tract North 00 deg 24 min 17 sec East a distance of 80.00 feet to a "X" in concrete set for corner; THENCE along the northerly line of said OPELL ESTELLE LOTT tract South 89 deg 58 min 36 sec West a distance of 79.00 feet to a "X" cut in concrete set for corner; THENCE along the westerly line of said OPELL ESTELLE LOTT tract South 00 deg 24 min 17 sec West a distance of 80.00 feet to a "X" cut in concrete set for corner in the northerly line of said WEST HICKORY STREET; THENCE along the northerly right of way line of said WEST HICKORY STREET South 89 deg 58 min 36 sec West a distance of 100.76 feet to a "X" cut in concrete set for corner in the easterly right of way line of FRY STREET (60 foot right of way); THENCE departing the northerly right-of-way line of said WEST HICKORY STREET and along the easterly right-of-way line of said FRY STREET North 00 deg 24 min 17 sec East a distance of 233.50 feet to the northwest corner of said Hartman tract; THENCE continuing along the easterly right of way line of said FRY STREET, North 00 deg 23 min PAGE 14 Exhibits Page 91 of 92 -'1(^_010 11:40:51 AM Case#: ZIO-0009 41 sec East, a distance of 88.30 feet to a point for corner in the southerly right of way line of said WEST OAK STREET; THENCE, along the southerly right of way line of said WEST OAK STREET as follows: South 89 deg 58 min 36 sec East, a distance of 24.98 feet to a 112 inch iron rod set with a red plastic cap stamped WAI for corner; South 00 deg 24 min 17 sec West, a distance of 1.79 feet to a 112 inch iron rod set with a red plastic cap stamped WAI for corner; North 89 deg 58 min 36 sec East a distance of 590.97 feet to the POINT OF BEGINNING; CONTAINING within these metes and bounds 4.381 acres or 190,833 square feet of land, more or less. Bearings cited herein are based on G.P.S. measurements taken during an on-the-ground survey performed the 15th day of December, 2005. PAGE 15 Exhibits Page 92 of 92 -'1(^_010 11:40:51 AM Case#: Z10-0009 This page left blank intentionally . AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Planning & Development/Community Development ACM: Fred Greene SUBJECT In accordance with HUD 24 CFR Section 570.611 (d) (1)(i); receive a statement of disclosure of Community Development Coordinator Luisa Rodriguez-Garcia's conflict of interest in the Community Development Block Grant Program through her spouse's position as Executive Director of the Denton City County Day School, a non-profit organization that receives CDBG funding. BACKGROUND After a recent monitoring visit by officials from the U.S. Department of Housing and Urban Development (HUD), Community Development staff members were requested to send an official inquiry asking if a conflict of interest existed. The possible conflict involves Luisa Rodriguez-Garcia, community development coordinator and her spouse who is employed as director for Denton City County Day School (DCCDS), an organization that receives Community Development Block Grant (CDBG) program funds under a contract with the City of Denton. Ken McDonald, HUD Counsel, determined that even though Ms. Rodriguez-Garcia had no involvement in the funding decisions or the approval of payments to DCCDS, that she is still in a position to gain information with regard to these activities. Accordingly, Mr. McDonald riled that this was a conflict and that the City of Denton should seek a conflict of interest exception under 24 CFR 570.611(d). Luisa Rodriguez-Garcia has been an employee of the City of Denton for more than sixteen years. Her spouse, Eduardo Garcia, was hired as DCCDS director, in March 2007. The City of Denton has a long history of providing CDBG funding to DCCDS. Funding for facility improvements was received as early as 1993. Therefore, DCCDS received CDBG grant funds for many years prior to Ms. Garcia's spouse's employment. As stated above, Ms. Rodriguez-Garcia does not currently participate in the decision-making process regarding the organizations, programs and projects to which CDBG funds are allocated. She is not involved in contract development, program monitoring or the payment process. Her job responsibilities will not change and these activities will remain out of her purview. The public disclosure requirement will be met by the reading of the statement at the Council meeting. The additional threshold requirement regarding a legal opinion that the interest is not in violation of any State or local law has been prepared for submission with the exception request. HUD officials have indicated to staff that it is likely that the exception will be granted. Agenda Information Sheet July 20, 2010 Page 2 PRIOR ACTION/REVIEW (Councils, Boards, Commissions) The conflict of interest statement which will be read into the record has been reviewed and approved by the Legal Department. FISCAL INFORMATION N/A EXHIBITS 1) Legal Opinion 2) Disclosure Statement 3) Exception Request to HUD Respectfully submitted: Mark Cunningham Director of Planning and Development Prepared by: Barbara Ross Community Development Administrator City Attorney's Office City of Denton, Texas 215 East McKinney Denton, Texas 76201 (940) 349-8333 Fax (940) 382-7923 INTEROFFICE MEMORANDUM TO: Barbara Ross, Community Development Administrator FROM: John M. Knight, Deputy City Attorney DATE: June 4, 2010 SUBJECT: City Attorney Legal Opinion 2010-02 - Questions Related to Community Development Coordinator's Potential Conflict of Interest through her spouse's position as Executive Director of the Denton City County Day School, a non- profit organization that receives CDBG funding. ATTORNEY/CLIENT CONFIDENTIAL COMMUNICATIONS CONFIDENTIALITY NOTE: This letter or memorandum and any accompanying enclosures are intended as attorney/client communication between the undersigned attorneys and the City of Denton through its duly authorized constituents. The addressees and noted copy recipients, acting within their official capacities on behalf of the City of Denton, are the only intended recipients. You are requested to neither divulge the contents of this letter or memorandum to any other person or entity, whether within or without the organization, nor to use this information for personal benefit. FACTS: You have informed us that Community Development Coordinator Luisa Rodriguez- Garcia's husband is employed as Executive Director of the Denton City County Day School, a non-profit organization that receives CDBG funding. You state that, after a recent monitoring visit by officials from the U.S. Department of Housing and Urban Development (HUD), Community Development staff members were requested to send an official inquiry asking if a conflict of interest existed. The possible conflict involves Luisa Rodriguez-Garcia, Community Development Coordinator and her spouse who is employed as director for Denton City County Day School (DCCDS), an organization that receives Community Development Block Grant (CDBG) program funds under a contract with the City of Denton. Ken McDonald, HUD Counsel, determined that even though Ms. Rodriguez-Garcia had no involvement in the funding decisions or the approval of payments to DCCDS, that she is still in a position to gain information with regard to these activities. Accordingly, Mr. McDonald ruled that this was a conflict and that the City of Denton should seek a conflict of interest exception under 24 CFR 570.611(d). This opinion is given to help satisfy that requirement. ISSUES: Would the employment of Ms. Rodriguez-Garcia's husband by DCCDS, who receives CDBG funds under a service contract with the City, violate any state or local law? Pei at~d to *g1itff Service" SALegaROur Documentsl0pinions120101Conflict of In eras o r~gpez- cU oc www.cztyo enton.com Barbara Ross, Community Development Administrator June 4, 2010 Page 2 SHORT ANSWER: Ms. Rodriguez-Garcia's husband's employment by DCCDS, which receives CDBG funds obtained as part of a grant from HUD, would not violate state or local law. LEGAL REASONING: The Charter requires than any officer or employee of the city having a substantial interest in a business entity or real property, as those terms are defined in Chapter 171 of the Texas Local government Code shall comply with Chapter 171. That Act provides that a conflict may arise if a person has a substantial interest in a business entity, which is defined by the Code as: 1. The person owning ten percent or more of the Voting stock or shares of the business entity or owns either ten percent or more or $15,000 of the fair market value of the business entity; or 2. Funds received by the person from the business entity exceed ten percent of the person's gross income for the previous year; or 3. The person has a substantial interest in real property if the interest is an equitable or legal ownership with a fair market value of $2,500 or more. A local public official is considered to have a substantial interest under Chapter 171 if a person related to the official in the first degree by consanguinity or affinity, as determined under Chapter 573 of the Gov't Code. Neither Ms. Rodriguez-Garcia's status, nor that of her husband constitutes a violation of Chapter 171 of the Tex. Loc. Gov't. Code or Section 2-62 of the Denton Code of Ordinances. One final local rule which needs to be examined is the recently adopted Ethics Policy which was adopted by Resolution No. R2004-025. This policy requires a councilmember to make impartial decisions that are free from bribes, unlawful gifts, narrow political interests and other personal interest that might impair his or her independence or judgment. Neither Ms. Rodriguez-Garcia's status nor that of her husband constitutes a violation of this rule. Since the CDBG is federally funded through HUD and is subject to federal conflict of interest regulations, the status of Ms. Rodriguez-Garcia under state and local law does not resolve the conflict under federal law. As you have indicated, HUD, through their Office of Counsel, made a preliminary determination that, since Ms. Rodriguez-Garcia is in a position to gain inside information, this is a conflict under the federal regulations. In order to resolve the conflict, the recipient must obtain an exception to the conflict under the federal regulations. This opinion is given to satisfy one of the exception requirements of the federal conflict of interest regulations to provide an opinion of the recipient's attorney that the interest for which the exception is sought would not violate state or local law. This opinion should be given to officials at HUD to determine if they agree with and will adopt this opinion and will grant the exception. ZACW Documents\Opinionsl20I Monflict of Interest Rodriguez-Garciadoc Barbara Ross, Community Development Administrator June 4, 2410 Page 3 SUMMARY: Based on the above facts, it is my opinion that Ms. Rodriguez-Garcia's husband's employment by DCCDS, an agency receiving CDBG funds for which the HUD exception will be sought, would not violate state or local law. A true and correct copy of this opinion should be submitted with the form of the exception letter to HUD officials for their consideration of an exception. M. Knight SAI,egalkOur Documents\Opinions120101Conflict of Interest Rodriguez-Garcia.doc PUBLIC DISCLOSURE STATEMENT The U. S. Department of Housing and Urban Development (HUD) has notified the City of Denton, Community Development Division that the City will receive a 2010-2011 allocation of Community Development Block Grant (CDBG) funds, a portion of which has been recommended to be allocated to the Denton City County Day School (DCCDS) for facility improvements. DCCDS provides day care services on a sliding scale fee for low and moderate- income families. The current executive director, Eduardo Garcia, is the spouse of a Community Development Division staff member, Luisa Rodriguez-Garcia. HUD has determined this to be a conflict of interest. The City of Denton is in the process of asking HUD for an exception to the conflict. One of the threshold requirements for an exception is that the conflict be publicly disclosed in accordance with 24 CFR Section 570.611 (d)(1)(i). In order to meet this public disclosure requirement, as Community Development Administrator, I, Barbara Ross, am hereby making this public disclosure as a part of the City's request for an exception from these conflict of interest provisions. I request that the City Secretary record this statement in the minutes of this meeting. July , 20 10 Katie Worsham, Director Office of Community Planning & Development U. S. Department of Housing and Urban Development Fort Worth, TX 76113-2905 RE: Request for Conflict of Interest Exception with Respect to 24 C FR 570.611 Dear Ms. Worsham: The City of Denton is requesting an exception to a preliminary determination by HUD's Office of Counsel of a conflict of interest involving City of Denton employee Luisa Rodriguez-Garcia. In response to inquiries by Denton's Community DeN elopment Division in a letter to Ellen M. Melendez on March 30th, Ken McDonald of your Office of Counsel reviewed a potential conflict of interest under federal regulations. This conflict involved Ms. Rodriguez-Garcia's spouse who is employed as director for Denton City Count- Day School (DCCDS), an organization that receives Community Development Block Grant (('DBG) program funds under a contract with the City of Denton. Mr. McDonald determined that even though Ms. Rodriguez- Garcia had no involvement in the funding decisions or the approval of payments to DCCDS, that she is still in a position to iin information with regard to these activities. Accordingly, Mr. McDonald riled that this was a conflict and that the City of Denton should seek a conflict of interest exception under 24 CFR 570.61l(d). Luisa Rodriguez-Garcia has been an employee of the City of Denton for more than sixteen years. Her spouse. Eduardo Garcia. was hired as DCCDS director, in March 2007. The City of Denton has a long history of prop iding CDBG funding to DCCDS. Funding for facility improvements was receiv ed as early as 199,. Therefore, DCCDS received CDBG grant funds for many years prior to Ms. Garcia's spouse's employment. As stated above, Ms. Rodriguez-Garcia does not currently participate in the decision- making process regarding the organizations, programs and projects to which CDBG funds are allocated. She is not invol,ecl in contract development, program monitoring or the payment process. Her j ob responsibilities wi 11 not change and these activities will remain out of her purview. Under these set of facts and circumstances we ask you to review your preliminary opinion and determine whether you still believe this constitutes a conflict of interest under the regulations cited above. If, however, your final determination concludes there is no conflict, then we assume it will not be necessary to request an exception. If, however, your final determination is consistent with the preliminary determination, please consider this letter as a request for an exception under Section 24 CFR 570.61l(d). Katie Worsham, Director June 25, 2010 Page 2 The two threshold requirements for obtaining an exception have been met. First, the City of Denton Legal Department has provided an opinion stating that the potential conflict of interest is not a violation of state or local law. This opinion is attached to and included in this application for an exception. Secondly, on May 4, 2010, a public announcement regarding the conflict of interest was presented at the Denton City Council meeting. The certified minutes of that meeting, attested to by the Denton City Secretary, are included as part of this exception request. We are requesting your approval of the exception based on the following factors which are keyed to the appropriate factors listed under Section 24 CFR 570.611: Whether the exception would provide a significant cost benefit or an essential degree of expertise to the program or project that would otherwise not be available. Ms. Rodriguez-Garcia's sixteen years of experience in grants management is an essential degree of expertise that should not be lost. Her 1:nowledge of the Community Development Block Grant program and her grants management skills have assisted the City of Denton in maintaining strong Community Development programs that have revitalized the city's low-income neighborhoods. ii. Whether an opportunity was provided for open competitive bidding or negotiation. The City's CDBG allocation process entails the review of applications submitted by City departments and non-profit service and housing provider. Applications availability is advertised and any non-profit or City department is able to submit a request for filnding. The Council-appointed Community Development Advisory Committee (CD.aC) reviews all applications and holds hearings to get additional information from the applicants. The CDAC then presents funding recommendations to City Council for further action. Community Development staff does not participate in the allocation recommendation process with the exception of the administrator. who provides information as needed on Federal regulations, project eligibility and past activities. ill. Whether the person affected is a member of a group or class of low or moderate- income persons intended to be the beneficiaries of the assisted activity, and the exception will permit such person to receive generally the same interests or benefits as are being made available or provided to the group or class; N/A iv. Whether the affected person has withdrawn from his or her functions or responsibilities, or the decision-making process with respect to the specific activity in question. Ms. Rodriguez-Garcia does not participate in developing the CDAC's funding recommendations and she does not approve or process payment requests from the DCCDS. COD AD`.Global Agendas`.Nei~Jpborhood SN cs`.2010 Agenda Items JulN_'.JulN 20`.Conflict of Interest 3- Garcia Conflict of Interest waiver Req DRAFT.doc Katie Worsham, Director June 25, 2010 Page 3 V. Whether the interest or benefit was present before the affected person was in a position as described in paragraph (b) of this section; Ms. Rodriguez-Garcia has been a member of the City of Denton's Community Development staff since June, 1993. Her spouse, Eduardo Garcia, was offered and accepted the position at DCCDS in March 2007. vi. Whether undue hardship will result either to the recipient or the person affected when weighed against the public interest served by avoiding the prohibited conflict; and DCCDS is a non-profit child care center that serves low to moderate-income families in the Denton community. Loss of any Federal funds to support provision of services, and assist in renovating the facility would hinder the ability of DCCDS to serve families in need. Due to the deterioration of the facility, day care services might have to be cut. DCCDS is one of only two sliding scale day care facilities in Denton County providing affordable child care for working families. vii. Any other relevant considerations. Based on the facts discussed above, the City of Denton respectfully requests approval of an exception of the potential conflict of interest involving City of Denton employee, Luisa Rodriguez-Garcia, and believes that HUD should conclude that such an exception would serve to further the purposes of the Act and further the effect of an efficient administration of the assistance program or pfolject. As indicated above, if, after reviewing all these factors, you should change your preliminary determination that these circumstances constitute a conflict of interest under 24 CFR 576.;7(d) and that the City of Denton no longer needs to apply for an exception for Ms. Rodriguez-Garcia. please inform us of that decision or, in the alternative, your decision regarding the exception. We appreciate your prompt consideration of this matter. Please contact me at 940349.7235 or John Knight at 940349.8300 if you have any questions or need additional information. Sincerely, Barbara L. Ross Community Development Administrator Enclosure cc: George C. Campbell, Denton City Manager Fred Greene, Assistant City Manager Anita Burgess, City Attorney Mark Cunningham, Director of Planning & Development COD AD`.Global Agendas`.Nei~Jpborhood SN cs`.2010 Agenda Items JulN_'.JulN 20`.Conflict of Interest 3- Garcia Conflict of Interest waiver Req DRAFT.doc This page left blank intentionally . AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: City Manager's Office CM: George Campbell, City Manager SUBJECT Consider appointments to the City's Boards and Commissions. BACKGROUND Attached are the nominations Council has submitted for board and commission positions. Any changes made during the Work Session will be presented to Council before consideration of this item. If you require any further information, please let me know. Respectfully submitted: Jennifer Walters City Secretary BOARD AND COMMISSION NOMINATIONS Board Council Member Nomination Airport Advisory Board Engelbrecht Watts Charles Brown (R) Kamp Burroughs Animal Shelter Advisory Committee Heggins Gregory Kamp Kin Community Development Advisory Cmte. Engelbrecht Kamp Burroughs All All Health & Building Standards Commission Gregory Watts Rosanne Ciccia (N) All All Economic Development Partnership Bd. Nominating Cmte. Historic Landmark Commission Gregory Burroughs All Human Services Advisory Cmte. Gregory Watts All All Library Board Engelbrecht Watts Lauren Womack (N) Burroughs Parks, Recreation & Beautification Board Gregory Engelbrecht Watts Carol Brantley (R) Kam Planning and Zoning Commission Engelbrecht Kamp Kin Public Art Committee Gregory Engelbrecht Watts Carol Collins (R) Burroughs R - Reappointment N - New Nomination BOARD AND COMMISSION NOMINATIONS Board Council Member Nomination Public Utilities Board Watts Randy Robinson (R) Traffic Safety Commission Heggins Gregory King All All Zoning Board of Adjustment Gregory Kam R - Reappointment N - New Nomination This page left blank intentionally . AGENDA INFORMATION SHEET AGENDA DATE: July 20, 2010 DEPARTMENT: Economic Development CM: George A. Campbell, City Manager SUBJECT Consider nominations/appointments to the City's Economic Development Partnership Board. BACKGROUND The City Council appointed a nominating committee at the June 15, 2010 meeting charged with recommending nominees for Economic Development Partnership Board membership. Nominating committee members are Mayor Pro Tem Pete Kamp, Council Member James King, and Chamber of Commerce Board Chair Hank Dickenson. Economic Development Partnership Board (EDPB) members serve two-year terms and may serve as many as three terms. The ordinance requires that the City Council appoint three persons to serve as a nominating committee, to include two City Council members and one person who is a member of the Chamber of Commerce. The committee solicits recommendations from the Chamber Board of Directors as to potential nominees from the Chamber and from the President of UNT. The committee was asked to confirm with each potential nominee his/her willingness to serve. The ordinance provides that EDPB members must fall into specific categories when they are originally appointed to the Board, i.e., City Council member, Chamber of Commerce Board of Directors member, Top Twenty Taxpayer and the President of the University of North Texas, or his designee. City Council members and Chamber of Commerce Board members may be reappointed to two additional consecutive terms even if they no longer serve on the City Council or Chamber Board. The following four EDPB members' places are up for reappointment or replacement: EDP Board Member Category Eligibility for Reappointment Mark Burroughs City Council Eligible for 2"` term Caleb O'Rear To Twenty Taxpayer Eligible for 1st full term* Mart Rivers Chamber of Commerce Board Eligible for 3r` term *Caleb O'Rear served the last year of previous Board member, Stan Morton's term. He is eligible for three full terms. -1- Other members currently serving on the EDP Board (and the expiration date of their current terms) are: EDP Board Current Term Eligibility for Member Category Expires Reappointment Virgil Strange Chamber of Commerce 2011 Eligible for 2 more terms Lane Rawlins UNT 2012 Eligible while serving as UNT President Dalton Gregory City Council 2011 Eligible for 2 more terms Denny Aldridge To Twenty Taxpayers 2011 Eligible for 1 more term Respectfully submitted: r Linda Ratliff, Director Economic Development Department -2- 2010-11 POTENTIAL GENERAL FUND BUDGET SOLUTIONS HANDOUT TO COUNCIL lm2 I'0t0 Slide 2 Estimated Revenues (prior to 06/15/2010) $ 85,871,960 Estimated Expenditures (prior to 06/15/2010)1 94,739,852 Budget Gap $ (8,867,892) $0.025/$100 of Valuation Tax Increase $ 1,487,059 Delay Increase in Over 65 Exemption from $30,000 to $35,000 150,000 Transfer Savings associated w/ CO bond issuance from utilities 180,000 Revenue Subtotal $ 1,817,059 Transfer KDB from General Fund to Solid Waste Fund ($359,000 impact to Solid Waste) $ 263,956 Delay of Public Safety Training Facility 2 Eliminate Gas Well Transfer 500,000 Reduction of Travel & Training Budgets 300,919 Efficiency Team Initiatives 546,000 Savings Subtotal $ 1,610,875 Estimated Revenues (06/15/2010) Estimated Expenditures (06/15/2010) Slide 3 Additional Reductions/Savings Miscellaneous Expenditure Adjustments Reduce Overtime by 1/3 (Police by 10%) Eliminate Pay Increase (PD/Fire STEP increases still funded) Manage Staff Vacancies Eliminate Council Contingency Funds Use of EDP Marketing Funds for Downtown Incentive Grant Reduce General Fund contribution to Chamber of Commerce Reduction in transfer to Technology Services Additional Reductions to General Fund Departments Additional Revenue Enhancements/ Increases Miscellaneous Revenue Adjustments Create Airport Enterprise Fund & charge Franchise Fees, R01, & Indirect Costs Potential Fee Increases (Net of additional FTEs related to Gas Well oversight) Possible Sales Tax Revenue Increase Transfer Urban Forester from General Fund to Tree Mitigation Fund Capitalize Parks Labor $ 87,689,019 93,128,977 06/15/10 Budget Gap $ (5,439,958) $ (1,387) 431,580 588,475 1,634,829 17,500 47,000 25,000 295,341 605,220 Savings Subtotal $ 3,643,558 (263,428) 262,000 500,000 TBD 78,513 108,653 Revenue Subtotal $ 685,738 07/20/10 Operating Budget Gap $ (1,110,662) 1 Includes approximately $500,000 for new programs and services associated with annexation. 2 Approximately $500,000 in annual savings beginning in FY 2012-13. 2010-11 POTENTIAL GENERAL FUND BUDGET SOLUTIONS Slide 4 Other Funding Needs Slide 5 Bicycle Master Plan - Consultant Costs 1 - $ 70,000 Comprehensive Plan & Mobility Plan Update (Est.) z l 800,000 Downtown Implementation Plan (Traffic Study, Downtown Mobility Plan, & Signage)1 150,000 Increase Street Maintenance Funding 3' 500,000 Anti-Idling Ordinance - 154,235 New Animal Shelter Facility Construction (Est.) 2 ' 1,000,000 New Convention Center & Hotel Facility TBD Traffic Signalization & Signage z i 855,000 Regional Toll Revenue (RTR) Matching Funds (Est.) 9,000,000 Total Other Funding Needs $ 12,529,235 1 Fund using existing bonds. z Fund with Non-Airport Gas Well Funds. 3 Fund using existing bond fund interest income. 4 Fund with the issuance of new bonds. Projected Non-Airport Gas Well Fund Balance at End of FY 2009-10 $ 2,725,626 Comprehensive Plan and Mobility Plan Update (800,000) New Animal Shelter Facility Construction (1,000,000) Traffic Signalization & Signage (855,000) Remaining Projected Balance by end of FY 2010-11 $ 70,626 CADocuments and SettingsVERICHAR\Local SettingMemporary Internet Files\Content.Outlook\95YNED3N\DCA10-0003 with vesting.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING CERTAIN SECTIONS WITHIN SUBCHAPTERS 3, 16, 22 AND 23 OF THE DENTON DEVELOPMENT CODE, RELATING TO GAS WELL DRILLING AND PRODUCTION, DEFINITIONS, AND PROCEDURES; ADOPTING A NEW PLANNING AND DEVELOPMENT REVIEW FEE SCHEDULE, PERTAINING TO GAS WELL DRILLING AND PRODUCTION WITHIN THE CITY LIMITS AND THE EXTRATERRITORIAL JURISDICTION; AND PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, SEVERABILITY AND AN EFFECTIVE DATE. (DCA10-0003). WHEREAS, pursuant to Ordinance No.2002-040, the City Council of the City of Denton, Texas adopted the Denton Development Code (the "Development Code"); and WHEREAS, the authority of a home rule municipality to regulate the exploration and production of natural gas within its city limits and extraterritorial jurisdiction as provided herein, is legislatively recognized, inter alia, at §92.007 of the Texas Natural Resources Code; §§54.012, 212.003, 212.044 and 217.042 of the Texas Local Government Code; and numerous other legislative and Constitutional provisions of the State of Texas; and WHEREAS, the City has codified its regulations governing gas well drilling and production within the City and extraterritorial jurisdiction in Subchapters 16 and 22 of the Denton Development Code, and applicable procedures and definitions in Subchapters 3 and 23; and WHEREAS, it has come to the attention of the City Council that the City's current standards may not fully implement the City's dual goals of allowing gas well drilling and production, and at the same time protecting the public's health, safety and general welfare; and WHEREAS, a multitude of gas well permit applications have been filed recently with the apparent goal of vesting against additional health and safety standards that may be promulgated by the City; and WHEREAS, the City has authority to impose a moratorium on authorizations for gas well drilling and production pending a thorough investigation into the need for additional procedural and substantive safeguards; and WHEREAS, in lieu of a moratorium on the issuance of gas well permits and other applications authorizing gas well drilling and production, the City Council finds that it is necessary in order to promote the health, safety and general welfare of the community to promulgate a set of procedural and substantive standards pending the City's complete study of the impacts of gas well drilling and production in the City and its ETJ; and WHEREAS, a detailed cost of services analysis and comparison with survey cities, related to gas well drilling and production, revealed that Denton's current fee structure is grossly inadequate to cover the cost of proposed services, and far below the fees imposed by neighboring cities for similar services; and further that the proposed changes to the Planning Fee Schedule are Page 1 CADocuments and SettingsUERICHAR\Local Settings\Temporary Internet Files\Content.Outlook\95YNED3N\DCA10-0003 with vesting-doe reasonable, and do not exceed the reasonable cost to the City in providing the review of the applicable development applications; and WHEREAS, after providing notice and after conducting a public hearing as required by law, the City Council finds that the subject changes to the Development Code and fees are consistent with Comprehensive Plan and are in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference and found to be true. SECTION 2. Subchapters 3, 16, 22 and 23 are amended to incorporate the specific changes, as identified by section or subsection in Exhibit "1", and such changed sections or subsections shall hereinafter read verbatim as set forth in Exhibit "1", which is attached and incorporated fully herein by reference; all provisions not specifically changed herein shall remain as written. SECTION 3. It is the intent of the City Council that the provisions of this ordinance shall apply prospectively to applications for gas well drilling and production, except to the extent that state law allows the City to apply new regulations to existing approved or pending applications. It is the further intent of the City Council that the provisions of this ordinance shall apply to any substantive amendment to an existing approved application for gas well drilling and production. The following procedure shall apply in the event of a controversy over the applicability of the regulations established by this ordinance. (a) Vested rights petition. An applicant for a gas well development plat, gas well development site plan, or gas well permit (collectively, gas well drilling and production applications) may be filed with the Director of Planning, alleging that the application is exempt from one or more requirements otherwise made applicable by this ordinance on the basis of statutory or common law vested rights. Upon granting of a vested rights petition in whole or in part, the application shall be decided in accordance with the standards specified in the relief order based on prior development standards. (b) Petition requirements. The petition shall include the following information and documents: (1) A narrative description of the grounds for the petition, including expressly and without limitation the application of Tex. Loc. Gov't Code ch. 245; (2) A copy of each approved or pending development application which is the basis for the contention that the city may not apply current standards to the gas well drilling and production application which is the subject of the petition; (3) The date of submittal of the gas well drilling and production application application; Page 2 CADocuments and SettingsUERICHAMLocal Settingffemporary Internet Files\Content.0utlook195YNED3N1DCA10-0003 with vesting.doc (4) The date the project for which the gas well drilling and production application was submitted was commenced; (5) Identification of all standards otherwise applicable to the gas well drilling and production application; (6) Identification of the standards which the petitioner contends apply to the gas well drilling and production application; (7) Identification of any current standards which petitioner agrees can be applied to the application at issue. (c) Processing of petition. The Director of Planning shall process the vested rights petition. A copy of the petition shall be forwarded to the city attorney following acceptance. The petition must be accompanied by a waiver of the time for decision on the gas well drilling and production application pending decision by the Council. The filing of the vested rights petition stays acceptance of filing of any related development applications. (d) Action on petition and order. The City Council shall decide the petition within thirty (30) calendar days of a determination that the petition is complete. The Council may take any of the following actions: (1) Deny the relief requested in the petition, and direct that the gas well drilling and production application shall be reviewed and decided under the standards applied by this ordinance; (2) Grant the relief requested in the petition, and direct that the gas well drilling and production application shall be reviewed and decided in accordance with the standards contained in identified prior regulations; or (3) Grant the relief requested in part, and direct that certain identified current standards shall be applied to the gas well drilling and production application, while standards contained in identified prior regulations also shall be applied. (e) Criteria for approval. The Council shall decide the vested rights petition based upon the following factors: (1) The nature and extent of prior gas well drilling and production or other development applications filed or approved for the land subject to the petition; (2) Whether any prior approved applications for the property have expired or have been terminated in accordance with law; (3) Whether any statutory exception applies to the standards in this ordinance from which the applicant seeks relief; Page 3 CADocuments and SettingsVERICHAR\Local Settings\Temporary Intemet Files\Content.Outlook\95YNED3N\DCAIO-0003 with vesting.doc (4) Whether any prior approved gas well drilling and production or other development applications relied upon by the petitioner have expired. (f) Application following relief order. Following the Council's decision on the vested rights petition, the property owner shall conform the gas well drilling and production application for which relief is sought to such decision. If the gas well drilling and production application on file is consistent with the relief granted on the vested rights petition, no revisions are necessary. Where proceedings have been stayed on the gas well drilling and production application pending decisoin of the vested rights petition by the Council, proceedings on the application shall resume after the Council's decision on the vested rights petition. (g) Expiration Relief granted on a vested rights petition shall expire on occurrence of one of the following events: (1) The petitioner or property owner fails to submit a required revised gas well drilling and production application consistent with the relief granted within thirty (30) days of the Council's decision on the petition; (2) The gas well drilling and production application for which relief was granted on the vested rights petition is denied under the criteria made applicable through the relief granted on the petition; or (3) The gas well drilling and production application for which relief was granted on the vested rights petition expires. SECTION 4. The Planning Fee Schedule, previously established and amended by Ordinances 2005-237 and 2009-098, is hereby amended by substituting, to the limited extent of any conflict, the revised fee schedule pertaining to Gas Well Drilling and Production, attached hereto and incorporated herein on the final page of Exhibit "l"; all fees not amended therein shall remain in place, without repeal or supersedure; and the fees set forth in the Planning Fee Schedule, as modified herein, are authorized to be imposed. SECTION 5. All ordinances in conflict herewith, are amended and superseded to the limited extent of such conflict, and all remaining sections and provisions of such ordinances, not in direct conflict herewith, are hereby made cumulative. SECTION 6. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 7. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 8. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Page 4 CADocuments and SettingsVERICHAR\Local Settings\Temporary Internet Files\Content.Outlook\95YNED3N\DCA10-0003 with vesting.doc Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2010. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Page 5 Public Hearing Item 4C Fry Street Overlay District Amending Language for Ordinance WHEREAS, upon consideration of the facts presented at the July 20, 2010 public hearing, the City Council finds, pursuant to the standards and criteria set forth and referenced in Denton's tree mitigation ordinances, that tree mitigation funds in the amount of $42,565.50 (54,n 2.50) are owed as a consequence of the unpermitted clearing of trees by the prior owner of Subarea B, contrary to said ordinances, as well as the proposed clearing of additional trees; however, due to the infirm condition of certain trees proposed to remain in place, this amount is likely to increase to $63,812.50, if these remaining trees die within the next three years; Site Plan Requirements for Subarea B only: Development shall substantially conform to the site plan shown at Exhibit 35.7.5.B. Minor Amendments. Upon request of the applicant, the Director of Planning and Development, or his designee, may authorize minor amendments to the site or landscape plan so long as such minor amendments do not change the land use or substantially change the character, development standards, or design of the development as shown on the approved site or landscape plans. For purposes of this provision, a "substantial change" shall mean a change which will increase the number of proposed dwelling units, height, or number of stories; or decrease the amount of required off-street parking spaces. The Director of Planning and Development, or his designee, shall make such authorization only in writing and such document shall be placed in the ordinance file governing the specific plan SECTION 4. the developer may request a proportionate rebate for those healthy trees, not to exceed ($9-,754,00) $21,250.00.