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June 18, 2002 Agenda
Agenda 02-021 06/18/02 AGENDA CITY OF DENTON CITY COUNCIL June 18, 2002 After determining that a quorum is present, the City Council will convene in a Work Session on Tuesday, June 18, 2002 at 4:00 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: Consider a report, hold a discussion and give staff direction regarding the proposed transportation service plan adopted by the Interim Executive Committee of the Denton County Transportation Authority. Receive a report, hold a discussion, and give staff direction regarding the use of a sales tax option to fund local street maintenance and repair, and to assess other municipal sales tax options. 3. Discuss the nomination process for the City's Boards and Commissions. Requests for clarification of consent agenda items listed on the consent agenda for today's City Council regular meeting of June 18, 2002. Following the completion of the Work Session, the 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 fight 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. 1. Closed Meeting: A. Deliberations regarding real property---Under TEXAS GOVERNMENT CODE Section 551.072 and Consultation with the City Attorney---Under TEXAS GOVERNMENT CODE Section 551.071 Deliberate the purchase and value of real property interests of certain real property comprising a tract of land containing approximately 0.565 acres for street purposes, and two Slope Easements containing approximately 0.203 acre and 0.134 acre, respectively, all of which are located in the D. Lambert Survey, Abstract No. 784 in the City of Denton, Denton County, Texas and being part of Lot 1, Block A, Lombard Addition, an addition to the City of Denton, Texas, as part of the Colorado/Mayhill/Edwards Paving and Drainage Improvements Project. Deliberations regarding real property---Under TEXAS GOVERNMENT CODE Section 551.072 and Consultation with the City Attorney---Under TEXAS GOVERNMENT CODE Section 551.071 Deliberate the purchase and value of real property interests of certain real property comprising tracts of land containing approximately 3.172 acres for Public Utility Easements and 2.655 acres for Temporary Construction City of Denton City Council Agenda June 18, 2002 Page 2 Easements from the Denton Independent School District, all of which are located in the S. McKracken Survey Abstract Number 817, City of Denton, Denton County, Texas as part of the Lake Ray Roberts Water Transmission Line ProJect and the Loop 288 Water Line ProJect. Deliberations regarding real property---Under TEXAS GOVERNMENT CODE Section 551.072 and Consultation with the City Attorney---Under TEXAS GOVERNMENT CODE Section 551.071 Deliberate the purchase and value of real property interests of certain real property comprising of tracts containing approximately 0.807 acres, 0.036 acres, 0.089 acres, 0.124 acres, and 0.028 acres of land, located in the City of Denton, Denton County, Texas in the Stephen A. Venter Survey, Abstract No. 1315, located on the south side of Hickory Creek Road, just east of the intersection of Livingstone Drive and Hickory Creek Road, which acquisition is for public purpose; receive legal advise from the City Attorney or his staff conceming legal issues regarding the acquisition and/or condemnation of such real property interest. (Hickory Creek Road Improvements Project); and Deliberate the purchase and value of real property interests of certain real property comprising a tract containing approximately 1.043 acres of land, located in the City of Denton, Denton County, Texas in the Stephen A. Venter Survey, Abstract No. 1315, located on the south side of Hickory Creek Road, just west of the intersection of Teasley Lane and Hickory Creek Road, which acquisition is for public purpose; receive legal advise from the City Attorney or his staff conceming legal issues regarding the acquisition and/or condemnation of such real property interest. (Hickory Creek Road improvements Project); and Deliberate the purchase and value of real property interests of certain real property comprising of tracts containing approximately 0.769 acres and 0.089 acres of land, located in the City of Denton, Denton County, Texas in the Eli Pickett Survey, Abstract No. 1018, located on the north side of Hickory Creek Road, just west of the intersection of Teasley Lane and Hickory Creek Road, which acquisition is for public purpose; receive legal advise from the City Attomey or his staff conceming legal issues regarding the acquisition and/or condemnation of such real property interest. (Hickory Creek Road improvements Project); and Deliberate the purchase and value of real property interests of certain real property comprising of a tract containing approximately 0.352 acres of land, located in the City of Denton, Denton County, Texas in the Eli Pickett Survey, Abstract No. 1018, located on the north side of Hickory Creek Road, approximately 750' west of the intersection of Teasley Lane and Hickory Creek Road, which acquisition is for public purpose; receive legal advise from the City Attorney or his staff conceming legal issues regarding the acquisition and/or condemnation of such real property interest. (Hickory Creek Road improvements Project); and City of Denton City Council Agenda June 18, 2002 Page 3 Deliberate the purchase and value of real property interests of certain real property comprising of tracts containing approximately 0.589 acres and 0.043 acres of land, located in the City of Denton, Denton County, Texas in the Eli Pickett Survey, Abstract No. 1018, located on the north side of Hickory Creek Road, approximately 400' east of the intersection of Livingstone Drive and Hickory Creek Road, which acquisition is for public purpose; receive legal advise from the City Attorney or his staff conceming legal issues regarding the acquisition and/or condemnation of such real property interest. (Hickory Creek Road Improvements Project); and Deliberate the purchase and value of real property interests of certain real property comprising of tracts containing approximately 0.062 acres and 0.016 acres of land, located in the City of Denton, Denton County, Texas in the Eli Pickett Survey, Abstract No. 1018, located on the north side of Hickory Creek Road, approximately 150' east of the intersection of Livingstone Drive and Hickory Creek Road, which acquisition is for public purpose; receive legal advise from the City Attorney or his staff conceming legal issues regarding the acquisition and/or condemnation of such real property interest. (Hickory Creek Road Improvements Project) Consultation with the City Attorney- Under TEXAS GOVERNMENT CODE Section 551.071. Discuss and consider strategy, status, and possible settlement of litigation with the City's attomeys in litigation styled City of Denton, et al v. TXU Electric Company, et al, Cause No. 009383 currently pending in the 134th District Court of Dallas County, Texas, and discuss legal issues conceming this litigation with the attorneys where to discuss these matters in public would conflict with the duty of the City's attomeys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. 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. GOV'T. CODE, §§551.001, ET SEQ. (THE TEXAS OPEN MEETINGS ACT) ON ANY FI'EM ON ITS OPEN MEETING AGENDA OR TO RECONVENE IN A CONTINUATION OF THE CLOSED MEETING ON THE CLOSED MEETING FI'EMS NOTED ABOVE, IN ACCORDANCE WITH THE TEXAS OPEN MEETINGS ACT, INCLUDING, W1THOUT LIMITATION §§551.071-551.086 OF THE TEXAS OPEN MEETINGS ACT. Regular Meeting of the City of Denton City Council on Tuesday, June 18, 2002 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: City of Denton City Council Agenda June 18, 2002 Page 4 Pledge of Allegiance A. U.S. Flag B. Texas Flag "Honor the Texas Flag -- i pledge allegiance to thee, Texas, one and indivisible." PROCLAMATIONS/PRESENTATIONS 2. June Yard-of-the-Month Awards 3. Recognition of staff accomplishments. CITIZEN REPORTS 4. Nell Yelldell regarding the DiSD school taxes. 5. Willie Hudspeth regarding citizen concems with the City. 6. Dessie Goodson regarding the City's involvement with low-income people. 7. Ed Soph regarding the Good News and the Bad News. 8. Dick Hershberger regarding healthcare needs. 9. Dave Harper regarding deregulation. 10. Ross Melton regarding Code Enforcement and criminal trespass. 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. Listed below are bids, purchase orders, contracts, and other items to be approved under the Consent Agenda (Agenda items 11 - 37). This listing is provided on the Consent Agenda to allow Council Members to discuss or withdraw an item lyior to approval of the Consent Agenda. if no items are pulled, Consent Agenda items 11 - 37 below will be approved with one motion. if items are pulled for separate discussion, they will be considered as the first items following approval of the Consent Agenda. 11. Consider approval of the minutes of May 7, May 9, May 14, May 20, May 21, and May 28, 2002. 12. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a Professional Services Agreement with James Duncan & Associates, inc. for Professional Engineering and Consulting Services pertaining to the preparation of an updated impact Fee Study for the Water and Wastewater Utilities; authorizing the expenditure of funds therefor; and providing an effective date. City of Denton City Council Agenda June 18, 2002 Page 5 13. Consider adoption of an ordinance of the City Council of the City of Denton, Texas authorizing the City Manager to approve and execute a Tower/Ground Lease Agreement by and between the City, as lessor, and Cingular Wireless, as lessee, for the lease of tower space on the McKenna Park Tower and on the grounds; authorizing the expenditure and receipt of funds therefor; and providing an effective date. 14. This item was pulled from consideration. 15. 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. 16. Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Professional Services Agreement (PSA) with Emcon/OWT for professional engineering services Construction Quality Assurance (CQA) Professional of Record (POR) for Soil Liner Quality Control at the Denton Municipal Landfill as set forth in the contract; providing for the expenditure of funds therefore; and providing an effective date (PSA 2862 to Emcon/OWT in the amount of $117,564). 17. Consider adoption of an ordinance of the City of Denton, Texas accepting competitive sealed proposals and awarding a contract for collection services for delinquent taxes on behalf of the City of Denton; providing for the expenditure of funds therefore; and providing an effective date (RFSP 2847 - Delinquent Tax Attorney awarded to Linebarger, Goggan, Blair, Pena, & Sampson, LLP and Gregory & Conner, P.C). 18. Consider adoption of an ordinance accepting competitive bids and awarding a public works contract for the replacement of the Civic Center HVAC system; providing for the expenditure of funds therefore; and providing an effective date (Bid 2852 - Civic Center HVAC Replacement awarded to BCI Mechanical, Inc. in the amount of $89,410). 19. Consider adoption of an ordinance accepting competitive bids and awarding a public works contract for the construction of landfill cells in Phase 2 of the City of Denton landfill; providing for the expenditure of funds therefore; and providing an effective date (Bid 2859 - Construction of Landfill Cells in Phase 2 awarded to L.D. Kemp Construction in the amount of $878,497.50). 20. Consider adoption of an ordinance providing for the expenditure of funds for the purchase of outdoor warning sirens and peripheral items which are available from only one source in accordance with the provision for state law exempting such purchases from requirements of competitive bids; and providing an effective date (Purchase Order 105276 to Gifford Electric, inc. in the amount of $87,393 for three additional sirens for outdoor warning system). 21. Consider adoption of an ordinance of the City Council of the City of Denton, Texas authorizing the City Manager or his designee to execute an agreement on behalf of the City of Denton to purchase installation, configuration, and associated support hardware and software for a Xiotech Storage Area Network from the Harding Group, inc., a Qualified Information Services Vendor (QiSV) of the State of Texas. (Purchase Order 105224 - The Harding Group, inc. in the amount of $169,930). City of Denton City Council Agenda June 18, 2002 Page 6 22. Consider adoption of an ordinance authorizing the City Manager to execute a water main prorata reimbursement agreement between the City of Denton and Pulte Homes to reimburse owner for the costs of building a water main through prorata charges paid to the City; authorizing the transfer of funds pursuant to the agreement; and providing an effective date. 23. Consider adoption of an ordinance authorizing the City Manager to execute a sewer main prorata reimbursement agreement between the City of Denton and Pulte Homes to reimburse owner for the costs of building a sewer main through prorata charges paid to the City; authorizing the transfer of funds pursuant to the agreement; and providing an effective date. 24. Consider adoption of an ordinance authorizing the City Manager or his designee to enter into a Real Estate Contract between the City of Denton and Ray Hallford relating to the purchase of a 0.565 acre tract of land in fee simple for street purposes, and two Slope Easements containing approximately 0.203 acre and 0.134 acre, respectively, all of which are located in the D. Lambert Survey, Abstract Number 784, in the City of Denton, Denton County, Texas, and being part of Lot 1, Block A, Lombard Addition, an addition to the City of Denton, Texas, as part of the Colorado/Mayhill/Edwards Paving and Drainage improvements Project; authorizing the expenditure of funds therefore; and providing an effective date. 25. Consider adoption of an ordinance approving the purchase of 3.172 acres of land for Public Utility Easements and 2.655 Acres for Temporary Construction Easements between the City of Denton and Denton independent School District located in the S. McKracken Survey Abstract Number 817, City of Denton, Denton County, Texas; authorizing the expenditure of funds therefore; and providing an effective date. (Lake Ray Roberts Water Transmission Line Project and the Loop 288 Water Line Project). 26. Consider adoption of an ordinance declaring a public necessity exists and finding that public welfare and convenience requires the taking and acquiring of an approximate 0.807 acre tract or parcel of land in fee simple for street purposes such title to be in the name of the City of Denton and a drainage and access easement containing approximately 0.036 acre and three temporary construction, grading, and access easements containing approximately 0.089 acre, 0.124 acre and 0.028 acre, respectively, all of which are located in Stephen A. Venture Survey, Abstract No. 1315 h the City of Denton, Denton County, Texas and being part of a tract of land conveyed to Gary Jay Madrigal by quitclaim deed recorded in Volume 4155, Page 1004, Deed Records of Denton County, Texas; authorizing the City Manager or his designee to make an offer to purchase the property for its fair market value and if such offer is refused, authorizing the City Attorney, or his designee, to institute the necessary proceedings in condemnation in order to acquire the property necessary for the public purpose of constructing street, drainage, utility and related improvements; and declaring an effective date. (Parcel 3) 27. Consider adoption of an ordinance declaring a public necessity exists and Funding that public welfare and convenience requires the taking and acquiring of an approximate 1.043 acre tract or parcel of land in fee simple for street purposes such title to be in the name of the City of Denton and said property located in Stephen A. Venture Survey, City of Denton City Council Agenda June 18, 2002 Page 7 Abstract No. 1315 in the City of Denton, Denton County, Texas and being part of a tract of land conveyed to Alvin E. Meredith et ux by deed recorded in Volume 829, Page 474 of the Deed Records of Demon County, Texas; authorizing the City Manager or his designee to make an offer to purchase the property for its fair market value and if such offer is refused, authorizing the City Attorney, or his designee, to institute the necessary proceedings in condemnation in order to acquire the property necessary for the public purpose of constructing street, drainage, utility and related improvements; and declaring an effective date. (Parcel 4) 28. Consider adoption of an ordinance declaring a public necessity exists and finding that public welfare and convenience requires the taking and acquiring of an approximate 0.769 acre tract or parcel of land in fee simple for street purposes such title to be in the name of the City of Denton and a temporary construction, grading, and access easement containing approximately 0.089 acre of land, located in the Eli Pickett Survey, Abstract No. 1018 in the City of Denton, Denton County, Texas and being a portion of Parcel 2, conveyance plat Lexington Park South, recorded in Cabinet S, Page 299, Plat Records of Denton County, Texas, conveyed to Dwight Thompson Ministries, Inc. by deed recorded in Volume 3135, Page 439, Deed Records of Denton County, Texas; authorizing the City Manager or his designee to make an offer to purchase the property for its fair market value and if such offer is refused, authorizing the City Attorney, or his designee, to institute the necessary proceedings in condemnation in order to acquire the property necessary for the public purpose of constructing street, drainage, utility and related improvements; and declaring an effective date. (Parcel 5) 29. Consider adoption of an ordinance declaring a public necessity exists and finding that public welfare and convenience requires the taking and acquiring of an approximate 0.352 acre tract or parcel of land in fee simple for street purposes such title to be in the name of the City of Denton and said property being located in the Eli Pickett Survey, Abstract No.1018 in the City of Denton, Denton County, Texas and being a portion of a tract of land conveyed to the MLM Family Trust by deed recorded under County Clerks file number 96-0059630, real property records of Denton County, Texas; authorizing the City Manager or his designee to make an offer to purchase the property for its fair market value and if such offer is refused, authorizing the City Attorney, or his designee, to institute the necessary proceedings in condemnation in order to acquire the property necessary for the public purpose of constructing street, drainage, utility and related improvements; and declaring an effective date. (Parcel 6) 30. Consider adoption of an ordinance declaring a public necessity exists and finding that public welfare and convenience requires the taking and acquiring of an approximate 0.589 acre tract or parcel of land in fee simple for street purposes such title to be in the name of the City of Denton and a temporary construction, grading, and access easement containing approximately 0.043 acre, both of which are located in the Eli Pickett Survey, Abstract No. 1018 in the City of Denton, Denton County, Texas and being part of a tract of land a)nveyed to George T. Connell, Jr. by deed recorded in Volume 3135, Page 436, Deed Records of Denton County, Texas; authorizing the City Manager or his designee to make an offer to purchase the property for its fair market value and if such offer is refused, authorizing the City Attorney, or his designee, to institute the necessary proceedings in condemnation in order to acquire the property necessary for the public purpose of constructing street, drainage, utility and related improvements; and declaring an effective date. (Parcel 7) City of Denton City Council Agenda June 18, 2002 Page 8 31. Consider adoption of an ordinance declaring a public necessity exists and funding that public welfare and convenience requires the taking and acquiring of an approximate 0.062 acre tract or parcel of land in fee simple for street purposes such title to be in the name of the City of Denton and a temporary construction, grading, and access easement containing approximately 0.016 acre, both of which are located in the Eli Pickett Survey, Abstract No. 1018 in the City of Denton, Denton County, Texas and being a portion of a tract of land conveyed to Tina M. Lauer by deed recorded in Volume 4468, Page 744, Deed Records of Denton County, Texas; authorizing the City Manager or his designee to make an offer to purchase the property for its fair market value and if such offer is refused, authorizing the City Attorney, or his designee, to institute the necessary proceedings in condemnation in order to acquire the property necessary for the public purpose of constructing street, drainage, utility and related improvements; and declaring an effective date. (Parcel 8) 32. Consider approval of an exaction variance of Section 35.20.3(B.) of the Code of Ordinances concerning perimeter sidewalk for the Liverpool Addition, being a 5.1 acre single family residential parcel located in a Neighborhood Residential 2 (NR-2) zoning district and on the westerly side of Bonnie Brae approximately 500 feet south of Corbin Road. The Planning and Zoning Commission recommends approval of a full variance (5- 2) (V02-0005) 33. Consider approval of an exaction variance of Section 35.20.2(L.3.a.) of the Code of Ordinances concerning perimeter paving for the Liverpool Addition, being a 5.1 acre single family residential parcel located in a Neighborhood Residential 2 (NR-2) zoning district and on the westerly side of Bonnie Brae approximately 500 feet south of Corbin Road. The Planning and Zoning Commission recommends approval of a full variance (5- 2) W02-0007) 34. Consider adoption of an ordinance authorizing the City Manager to execute change orders to the contract between the City of Denton and Pharlap Construction, Inc.; providing for the expenditure of funds therefore; and providing an effective date (Change Order One in the amount $139,613, Change Order Two in the amount of $3,058 and Change Order Three in the amount of $4,392.) 35. Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and South Ridge Recreation Club for the repair of swimming pools to be open to residents of the City of Denton upon payment of membership fees; providing for the expenditure of funds therefore; and providing for an effective date. 36. Consider adoption of an ordinance of the City of Denton authorizing the City Manager to execute on behalf of the City of Denton a grant agreement with the Texas Department of Transportation relating to obtaining funds for the replacement of a vehicle (bus) for the transit system; and declaring an effective date. 37. Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and the Juneteenth Committee to support the Juneteenth Pageant; providing for the expenditure of funds therefore; and providing for an effective date. City of Denton City Council Agenda June 18, 2002 Page 9 PUBLIC HEARINGS 38. Continue a public hearing and consider adoption of an ordinance rezoning approximately 37 acres from a Neighborhood Residential 2 (NR-2) zoning district to a Neighborhood Residential Mixed Use (NRMU) zoning district. The property is generally located on the west side of Bonnie Brae north of Windsor and south of Riney Road. The Planning and Zoning Commission recommends approval of Neighborhood Residential Mixed Use 12 (NRMU-12) (4-2). (ZO2-OOOD [Property owner initiated rezoning, initially reviewed during the Development Code review process.] 39. Hold a public heating and consider adoption of an ordinance rezoning approximately 0.8 acres generally located at the southeast comer of Taliaferro Street and Elm Street, from a Neighborhood Residential 3 (NR-3) zoning district to a Neighborhood Residential Mixed-Use (NRMU-12) zoning district. Attached single-family dwellings are proposed. The Planning and Zoning Commission recommends approval (7-0). (Z02-0005) 40. Hold a public heating and consider adoption of an ordinance amending Ordinance 99- 439, regarding a Comprehensive Plan Amendment, from Community Mixed Use Center to Neighborhood Center. The area for amendment encompasses approximately 9.1 acres. The site is generally located southeast of the intersection of Loop 288 at Sherman Drive, approximately 510 feet east of Poinsettia Boulevard. The area for amendment is part of a larger development containing a variety of single-family, multifamily, retail, office and commercial uses. The Planning and Zoning Commission recommends approval (6-1). (C,~O2-O001) 41. Hold a public heating and consider adoption of an ordinance rezoning multiple parcels totaling approximately 11.3 acres from Neighborhood Residential 3 (NR-3) and Community Mixed Use General (CM-G) zoning districts to Neighborhood Residential Mixed-Use 12 (NRMU-12) and Neighborhood Residential 6 (NR-6) zoning districts. The property is generally located approximately 200 feet east of Sherman Drive and Poinsettia Boulevard intersection. Town homes and detached single-family dwelling units are proposed. The Planning and Zoning Commission recommends approval (6-1). (Z02-0024) 42. Hold a public heating and consider adoption of an ordinance rezoning approximately 72.3 acres from an Agriculture (A) zoning district to a Neighborhood Residential 3 (NR- 3) zoning district. The site is generally located north of Loop 288, south of Long Road, east of Smart Drive and west of Sherman Drive. The rezoning is required to bring property into compliance with the new Development Code zoning classifications. The Planning and Zoning Commission recommends approval (7-0). (Z02-0023) 43. Hold a public heating and consider adoption of an ordinance rezoning approximately 3.0 acres of land from a Regional Center Residential 1 (RCR-1) zoning district to a ~gional Center Commercial Downtown (RCC-D) zoning district. The site is generally located at 4011 Interstate 35 E northbound, on the easterly side of the service road adjacent to the Finfer Fumiture Outlet. Future commercial development is proposed. The Planning and Zoning Commissions recommends approval (7-0). (Z02-0025) City of Denton City Council Agenda June 18, 2002 Page 10 44. Hold a public hearing and consider adoption of an ordinance amending Chapter 35, Code of Ordinances of the City of Denton, Texas; "Development Code" by adding Subchapter 15, "Signs and Advertising Devises"; providing for a cumulative provision; providing for a severability clause; providing for a penalty in the amount of $2,000 for violations thereol} and declaring an effective date. The Planning and Zoning Commission recommends approval (7-0). (SI02-0004) 45. Hold a public heating to receive public comments and evidence on TXU Gas Distribution's request to change rates in the North Texas Metroplex Distribution System including the City of Denton, Texas. ITEMS FOR INDIVIDUAL CONSIDERATION 46. Consider approval of a resolution denying TXU Gas Distribution's request to change rates in the North Texas Metroplex Distribution System as recommended by the coalition of cities' consultants and counsel; requiting prompt reimbursement of cities' rate case expenses; and providing for an effective date. 47. Consider adoption of an ordinance of the City of Denton, Texas authorizing settlement of litigation styled City of Denton v. Texas Utilities Company, et al., Cause No. 009383 currently pending in the 134th District Court of Dallas County, Texas; authorizing the City Manager and the City Attorney to act on the City's behalf in executing any and all documents necessary to effect such settlement under the terms set forth in the attached compromise settlement and release agreement, and to take such other actions deemed necessary to Finalize the settlement; and declaring an effective date. 48. Consider adoption of an ordinance appointing Municipal Judge, Robin Ramsay, as Administrative Law Judge for discovery purposes and delegating to the Administrative Law Judge the authority to prepare discovery guidelines in the proceeding entitled "TXU Gas Distribution's Statement of Intent to Increase Rates in the North Texas Metroplex Distribution System"; providing the Administrative Law Judge the powers set forth in the body of this ordinance; and providing an effective date. 49. Consider adoption of an ordinance on In'st reading to voluntarily annex approximately 345.5 acres of land generally located north of Loop 288, east of Bonnie Brae, and west of Locust in the northern section of the City of Denton extraterritorial jurisdiction (ET J). (n02-O00~) 50. Consider adoption of an ordinance concerning the Alternative Development Plan for Chuck E Cheese and Denton Park 35 development. The approximately 7.5 acre property is in the Downtown Commercial General (DC-G) zoning district and is generally located on the north side of Interstate 35E, approximately 210 feet west of Centre Place and east of Meadow. Alternative site design standards, including stacking, connectivity and pervious parking requ'u'ements are proposed. (The Planning and Zoning Commission will make a recommendation on June 12, 2002.) (SP02-0003) 51. Consider adoption of an ordinance conceming the Alternative Development Plan for the Denton Crossing development. The approximately 54-acre site is generally located at the City of Denton City Council Agenda June 18, 2002 Page 11 southwest comer of Loop 288 and Spencer Road. Alternative site design standards, including parking requirements and architectural elevations, are proposed. The Planning and Zoning Commission recommends approval (7-0). (SP02-O00O 52. New Business This item provides a section for Council Members to suggest items for future agendas or to request information from the City Manager. 53. Items from the City Manager A. Notification of upcoming meetings and/or conferences B. Clarification of items on the agenda 54. Possible Continuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. 55. 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 Demon, Texas, on the day of ,2002 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 02-021 06/18/02 WS#1 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: June 18, 2002 Transportation Operations Jon Fortune, ACM Public Safety & Transportation Operations SUBJECT Consider a report, hold a discussion and give staff direction regarding the proposed transportation service plan adopted by the Interim Executive Committee of the Denton County Transportation Authority. BACKGROUND Last year the Texas Legislature passed HB3323 which allows counties to create transit authorities to provide public transit and transportation services when they are adjacent to a county with a population of one million or more. Denton County Commissioners approved a petition to create a transit authority on September 4, 2001, which included designating the name of the authority [Denton County Transportation Authority (DCTA)], defining its jurisdiction, and stating that the authority be established only after it is confirmed by election. An interim executive committee (IEC) consisting of representatives for the entire county was created to develop a service plan and determine a financing strategy for DCTA. The goveming bodies of the various municipalities within the County were responsible for appointing members to the IEC. One member was appointed by the governing bodies of municipality with a population of more than 12,000, the commissioner's court appointed three members who reside in the unincorporated areas of the county and three members were designated by the remaining municipalities in the county with a population of more than 500 but less than 12,000. the Denton City Council appointed Joe Roy as its representative to the Interim Committee on January 29, 2002. The current committee members are: · Joe Roy - City of Denton · Charles Emery - City of Lewisville (Chair of the IEC) · Van James - Town of Flower Mound · Tom Terrall - The Colony (Vice Chair of IEC) · Mike Leavitt- Highland Village · Kevin Knauf- Corinth · Richard Tucker- small cities representative · George Purefoy - small cities representative · Tom Spencer - small cities representative · Charles Correll - County representative · Rick Salazar- County representative · Jason Pierce - County representative dEC Secretary) Though an Interim Committee has been appointed and has drafted a service plan, the actual transportation authority has yet to be confirmed. The process to confirm DCTA requires two confirmation elections: one for the confirmation of the authority and service plan, and one for a potential sales tax increase. The Interim Committee has a statutory deadline of 180 days from their fa'st meeting, which was December 13,2001, to adopt a service plan. The IEC has conducted two series of public meetings and has held over 70 public meetings throughout Denton County. In the Fa'st set of meetings, the IEC sought public input on the general transportation needs for the County. Based on this input, the IEC developed a draft service plan that was presented during the second set of public meetings to obtain public comment. The IEC adopted the final draft of the service plan m June 13, 2002, which has been attached for your review and consideration. Now that the service plan has been adopted by the IEC, it will be sent to all cities in Denton County with a population over 12,000, who will then have 60 days for approval. If a city does not approve the service plan, they may not participate in the confirmation election or service plan if implemented. The Denton City Council is scheduled to approve the service plan by resolution on July 16, 2002, and the deadline for cities to adopt the service plan is August 9, 2002. Next, the County Commissioners will call an election, which will be scheduled for November 5, 2002 to determine if DCTA will be confm'ned including the service plan. Confirmation of DCTA as an authority requires successful passage by at least one city with a population over 12,000 and at least a majority of all County residents voting to confirm DCTA. The service plan may be adjusted based on which Cities approve participation and the November 5 election. A separate election must be held to allow voters an opportunity to authorize a sales tax to finance the service plan. Cities that do not confirm the existence of DCTA or approve the sales tax may not participate as a member of the authority. Texas Cities are limited to a 2¢ local option sales tax. The Citizens of Denton have authorized a 1¢ general-purpose sales tax and a 5¢ additional sales tax to reduce property taxes, and currently has an additional 5¢ capacity left in the sales tax rate. As you can see the attached service plan includes both conservative and aggressive funding scenarios. The conservative scenario assumes every city in the County will assess an additional V~5 sales tax, while the aggressive scenario assumes that in addition to the V~5 assessed by each city, cities over 12,000 population will assess an additional V~5 sales tax (a full %. The aggressive scenario provides transportation services sooner than the conservative option. As the Denton City Council considers participation in the DCTA service plan, consideration must be made as to how the City's remaining sales tax capacity will be used if at all. As referenced above, the City Council will consider approval of the service plan on July 16. The City Council must decide if Denton should participate in the November 5 confirmation election and which funding scenario is preferred: conservative or aggressive. Joe Roy, the City's appointed representative to the IEC is out of the Country and will not be able to attend the June 18 worksession. However, Mr. Roy has invited several individuals to attend the meeting to make a very brief statement about the potential impact of DCTA in the City of Denton. The individuals that have been invited are: Dr. Norval PoN - UNT President Dr. Lee Ann Nutt - NCTC Provost for Corinth Campus Bob Haley - CEO Denton Region Medical Center Chuck Carpenter - Executive Director, Denton Chamber of Commerce Ray Bejarano - Mall Manager, Golden Triangle Mall Dr. Ann Stuart - TWU President OPTIONS The City Council must decide if Denton should participate in the November 5 confirmation election and which funding scenario is preferred: conservative or aggressive. ESTIMATED SCHEDULE OF PROJECT The following is the schedule to confirm DCTA and a subsequent sales tax increase. · Dec 13,2001 - First meeting of the Interim Committee · Jun 13, 2002 - Deadline for Interim Committee to approve service plan · Aug 9, 2002 - Deadline for city councils to approve service plan · Aug 12, 2002 - Interim Committee notifies Commissioners Court to call election · Sep 3, 2002 - Commissioners Court orders confirmation election · Nov 5, 2002 - Uniform election date · TBD - Sales tax election FISCAL INFORMATION There is no fiscal impact associated with the approval of the service plan and support of a financing strategy at this time. EXHIBITS Interim Executive Committee adopted service plan for the Denton County Transportation Authority. Respectfully submitted: Jon Fortune Assistant City Manager Public Safety & Transportation Operations DENTON COUNTY Transportation Authority Service Plan June 13, 2002 iTrans TABLE OF CONTENTS TABLE OF CONTENTS .............................................................................................................. I LIST OF FIGURES ..................................................................................................................... I ACKNOWLEDGEMENTS ........................................................................................................... II OVERVIEW ............................................................................................................................. 1 Introduction ........................................................................................................................ 1 Purpose and Need ............................................................................................................... 1 Goals, Guiding Principles, and Concepts ............................................................................... 2 SERVICE PLAN ........................................................................................................................ 3 Regional Rail Plan ............................................................................................................... 3 Park-and-Rides/Regional Rail and Bus Facilities ................................................................... 9 Regional Connector Service ................................................................................................. 9 Feeder and Local Bus Service ............................................................................................ 10 Demand Response Service ................................................................................................. 11 Local Assistance/Corridor Preservation ............................................................................... 14 Short-Term Capital and Operating Costs ............................................................................. 14 Financing Plan .................................................................................................................. 14 Recommended Sales Tax Rate ........................................................................................... 15 Phasing and Staging .......................................................................................................... 15 NEXT STEPS ......................................................................................................................... 16 BACKGROUND TECHNICAL REPORT ....................................................................................... 17 COMPLIANCE WITH LEGISLATION .......................................................................................... 17 LIST OF FIGURES FIGURE 1: REGIONAL RAIL- SEGMENT 1 .................................................................................. 5 FIGURE 2: REGIONAL RAIL - SEGMENT 2 .................................................................................. 6 FIGURE 3: REGIONAL RAIL - LONGER-TERM EXPANSION ALTERNATIVES ................................... 8 FIGURE 4: PARK-AND-RIDES/REGIONAL RAIL AND BUS FACILITIES AND REGIONAL CONNECTOR SERVICE ........................................................................................................................ 10 FIGURE 5: FEEDER AND LOCAL BUS SERVICE ......................................................................... 12 FIGURE 6: DEMAND RESPONSE SERVICE ................................................................................ 13 iTrans ACKNOWLEDGEMENTS The URS consultant team wishes to thank the following individuals, whose hard work and countless hours of volunteer effort greatly contributed to the success of this project. Interim Executive Committee: Representing Large Cities with Populations Greater than 12, 000: · Charles Emery, Lewisville, Chair (January 2002-present) · Van James, Flower Mound · Kelvin Knauf, Corinth · Mike Leavitt, Highland Village · Joe Roy, Denton · Tom Terrall, The Colony Representing Small Cities with Populations between 500 and 12, 000: · George Purefoy, Frisco · Tom Spencer, Shady Shores · Bill Walker, Roanoke Representing Unincorporated Areas of Denton County: · Charles Correll, Argyle · Rick Salazar, Aubrey Representing Denton County At-Large: · Jason Pierce, Aubrey Former Chair: · Hon. Scott Armey, Denton, Chair October 2001-January 2002 Denton Count. Staff: Shala Geer Cheryl Hammons iTrans Introduction House Bill 3323 was approved by the 77th Texas Legislature and signed into law by the Governor in 2001. The law allows creation of a Coordinated County Transportation Authority in urban "collar" counties surrounding core counties with populations of 1,000,000 or more, which includes Denton County. The legislation requires that a Service Plan, an outline of the services that would be provided by an authority when confirmed by the voters, be developed by the Transportation Authority. The Denton County Commissioners Court initiated the process to form the Denton County Transportation Authority (DCTA) in October 2001. The commissioners court and large municipalities in the County (those with populations above 12,000) made appointments to the DCTA Interim Executive Committee (IEC); the remaining positions were selected by a vote of municipalities with populations between 500 and 12,000. This document represents the DCTA's proposal for transportation facilities, services, and funding options for the citizens of Denton County under the provisions of House Bill 3323. Purpose and Need The concept for a Denton County Transportation Authority was developed with several basic purposes in mind. The idea for the Authority arose primarily as a result of several issues that, while not unique to Denton County, are problems of major concern: · Denton County is forecast to experience unprecedented growth in the next two decades. According to the North Central Texas Council of Governments (NCTCOG), the County's population is anticipated to increase by 145 percent between now and 2025, compared to the entire North Central Texas region's projected growth rate of 67 percent. In addition, employment in the County is forecast to increase by 158 percent, compared to the 67 percent growth rate forecast for the entire region. · Highway congestion is also forecast to increase dramatically in Denton County. According to NCTCOG, 41 percent of all lane miles in Denton County will experience "severe peak period congestion" by 2010, and Denton County drivers will spend 40 percent of their travel time in congested traffic by 2010. · Finally, highway funding in Denton County is forecast to be unable to keep with demand to help reduce anticipated congestion. Regionwide, NCTCOG's Mobility 2025 report noted that the region will experience a $3.4 billion shortfall (the difference between what is needed and what is available in funding) in freeway and toll road funding between now and 2025. iTrans The Authority can provide Denton County with a method of addressing many of those short-term and long-range mobility and growth problems by: · Providing administrative mechanisms for implementing transportation improvements throughout the County; and · Creating a dependable funding base for transportation improvements. Additionally, once confirmed by the voters, the authority may plan, design, and construct transportation improvements, including but not limited to: · Fixed guideway (commuter rail or light rail); · Bus transit and associated high-occupancy vehicle lanes; · Dedicated thoroughfare (high-occupancy vehicle) lanes; · High-occupancy toll lanes; and · Traffic management systems. Goals, Guiding Principles, and Concepts Service Plan Goals Four goals have been developed by the Interim Executive Committee to help focus the development of the Service Plan: 1. Improve transportation for the County and region; 2. Maintain and improve Denton County's quality of life; 3. Contribute to air quality improvement; and 4. Promote economic development. Guiding Principles Six guiding principles have been used throughout the creation of the Denton County Transportation Authority Service Plan. 1. Provide maximum coverage; 2. Provide a moderate level of service depending on demand; 3. Promote maximum cost-effectiveness and opportunities for federal funding; 4. Focus on linkages between local service and regional bus and rail; 5. Focus on activity centers; and 6. Focus on future expansion of the transportation system as population and demand warrant. Service Plan Development Concepts and Trade-Offs A number of concepts were kept in mind as the Service Plan was developed: 1. There should be a mix of service concepts; 2. The Service Plan must be affordable; 3. The Service Plan should be flexible and able to adapt to changing conditions in the short-term and long-term; 4. The Service Plan should benefit the entire County; and 5. The Plan should maximize ridership. iTrans As the Service Plan was developed, the Imerim Executive Committee discussed a number of trade-offs. These trade-offs help ensure that the Service Plan is balanced demographically and fiscally. They include: 1. Providing maximum coverage vs. cost-effectiveness (cost per rider); 2. The extent of using passenger rail service as opposed to bus service; 3. The balance between serving transit-dependent riders vs. serving choice (new) transit riders; and 4. The emphasis on local service vs. regional service. SERVICE The Service Plan includes a rail component and three layers of bus service, including Regional Connector Service, Feeder/Local Routes and Demand Response Service, as well as a network of Park-and-Rides/Regional Rail and Bus Facilities to serve Denton County. Together, these elemems provide some type of service to virtually every community in the County, helping to mitigate and improve many mobility issues immediately, as well as linking the County's larger cities to rail when that service is implemented. The DCTA plan recognizes that DeNon County is part of the greater Dallas-Fort Worth region and respects the importance of its part as a component in the regional transportation system. In implementing the plan, DCTA will seek to work closely with Dallas Area Rapid Transit, the Fort Worth Transportation Authority, and the North Central Texas Council of Governments to make connections to regional services. Regional Rail Plan Overview Regional rail is the central element of the Denton County Transportation Authority's Service Plan. Initial rail service in DeNon County can be implememed in conjunction with the opening of DART's Northwest Corridor to Frankford Road in North Carrollton in 2008, with future extensions to Denton and other key areas of the county as additional sales tax and other funding permits. Rail service is initially conceived as operating at 30-minute headways during peak periods and 60-minute headways during off-peak times and weekends. Vehicles The vehicle being considered for this service is "regional rail," a type of Diesel-Multiple Unit (DMU) vehicle. DMU's are self-propelled diesel-powered trains that operate in trainsets of one to three passenger cars. Newer generations of DMU's, called "regional rail" vehicles, are approaching light rail vehicles in service characteristics. For purposes of this Service Plan, the estimated capital cost for regional rail is $12 million per mile, similar to NCTCOG's regionwide per-mile cost for commuter rail. iTrans Proposed Short Term Service Segment One--Carrollton to Corinth~Hickory Creek/Lake Dallas This segment (see Figure 1) is approximately eleven miles long. This service would use the former Union Pacific (UP) right-of-way that runs generally parallel to 1-35E from North Carrollton to FM 2181 (Teasley Drive/Swisher Road) at the southern boundary of Corinth and the northern boundary of Hickory Creek and Lake Dallas. The line would run from the DART Frankford Road LRT station to a proposed passenger rail station at 1-35E and FM 2181 to intercept commuters coming from the northern parts of Denton County. One advantage of extending the first operational segment to FM 2181 is allowing passengers to avoid the bottleneck of the Lake Lewisville bridge on IH 35E. Additional stations would be provided in downtown Lewisville east of 1-35E near the City's Old Town redevelopment area, and at the railroad's intersection with the SH- 121 bypass on the south side of Lewisville. Estimated capital cost: $132 Segment Two--Extension to Denton This segment (approximately nine miles long) would provide for the extension of rail service to Denton. There are two options for this extension (see Figure 2). One option is to continue along the former Union Pacific railroad right of way into Downtown Denton from the end of Segment 1 at FM 2181. This would serve North Central Texas College and more of the County's population and would have a more logical terminus in the center of Downtown Denton. This segment of the line is now in use as a trail in the "Rails to Trails" program. The property is owned by the City of Denton, and DART owns the passenger rail operating rights for the former railroad right of way. The alternative option is to use the Kansas City Southern (KCS) railroad line just north of FM- 407. This would terminate west of downtown Denton near the University of North Texas (UNT) campus. There is also an opportunity to exit the KCS railroad corridor just south of Denton, and use the Union Pacific (UP) railroad right-of-way into downtown Denton. The exact alignment will be determined in a future alternatives analysis process. Any alternatives for this segment will consider impacts on adjacent properties before a final alignment decision is made. Estimated capital cost: $108 million. Trans FIGURE 1: REGIONAL RAIL - SEGMENT 1 Ponder ~ De~ton ~ ? No~h Lake P~lot Point Segment 1: North Carrollton to Corinth/Hickory Creek/ Lake Dallas Trans FIGURE 2: REGIONAL RAIL - SEGMENT 2 / Denton No~h Lake Segment 2: Alternative Route from North Lewisville to Denton Aub~y Pilot Point Segment 2' Corinth/ Hickory Creek/ Lake Dallas to Denton Frisco Segment 1' North Carrollton to Corinth/Hickory Creek/ Lake Dallas iTrans Proposed Longer-Term Expansion Alternatives Several corridors are proposed for potential implementation after Segments 1 and 2 of regional rail service (see Figure 3). At the appropriate time in the future, the Authority will decide on which segments to prioritize for implementation. The proposed potential future expansion corridors are: Lewisville to DFW International Airport This future line would follow the SH-121 alignment from South Lewisville to DFW Airport. Service on the line would interconnect to Denton and North Carrollton. This new segment would be approximately seven miles long and would be coordinated with DFW Airport's rail access plans on the northwest side of the Airport. While DART is considering the use of the Cotton Belt Railroad alignment from Downtown Carrollton to DFW Airport, this stand-alone alignment is proposed to provide direct one-seat rail access to the Airport for Denton County residents. Lewisville to Richardson (KCS railroad right-of-way) and Carrollton to The Colony~Frisco (BNSF railroad right-of-way) Future rail service to the east side of Denton County will depend in part on the development of these two corridors. This will be one of the better opportunities to partner with neighboring counties or authorities to accelerate funding and development of services. Carrollton to Dallas (same seat service) This future segment will be explored at a time when technology is available to provide same-seat service from Denton to downtown Dallas. Denton to Fort Worth There are two possible alignments to serve this corridor between Denton and Fort Worth. The primary option is to use the UP railroad right-of-way that runs parallel to US-377. However, an alternative could use the 1-35W right-of-way. The exact alignment would be determined in a future alternatives analysis process. Other Expansion Alternatives · Denton to McKinney (US 380 right-of-way) · Lewisville to The Colony/Frisco/McKinney (SH 121 fight-of-way) · South County Line through Justin, Ponder, Krum, and Sanger (BNSF railroad right-of-way) · Denton to Aubrey/Pilot Point (UP railroad right-of-way) · Remaining Kansas City Southern line northwest of Denton (KCS railroad right-of-way) Trans FIGURE 3: REGIONAL RAIL - LONGER-TERM EXPANSION ALTERNATIVES BNSF ROW along western portion of County 5an§er Rem ainder of KCS ROW northwest of Denton [ Denton to Plot Po~t al on g UP ROW Denton to Mckinney along US.380 ROW P~nder Jus~n~ [~enton North _ake UP ROW to For~ Worth BNSF ROW along eastern edge of County Lewisvill e to Richardson ~i ong KCS ROW Lewisville to The Colony/ F ris co/M cki n ney along SH-121 ROW South Lewisville to DFWAirport along SH-121 ROW Railroad Corridor Highway Corridor Altemative Routes to Dallas To F~'tWorth CBD To Dallas CBD iTrans Park-and-Rides/Regional Rail and Bus Facilities Regional Park-and-Rides/Regional Rail and Bus Facilities are recommended at 31 key locations countywide (see Figure 4). The Park-and-Ride transfer network is a key element to the Authority's success, as those sites will be the key transfer points for all of the other recommended services. The three photos below demonstrate the range of options for Park-and-Rides--from a shared lot at a regional shopping center, to a regional transit center with a covered waiting area, to a muki-level parking structure. Park-and-Ride facilities along the future rail corridors can be built to initially serve local and regional buses, but could later serve as Regional Rail Stations. If some Park-and-Ride locations can be shared with other commercial uses, those funds can go to help finance other transit related projects in the community. It must be stressed that no specific address locations are recommended at this time for these sites. Each individual community must work with the Authority and with local landowners to fred a location that incorporates the Park-and-Ride facility into the rest of the area and provides convenient access for potential patrons. Land availability will also be an important element in deciding where these facilities are placed in each community. In addition, the location of major Park-and-Rides, especially those that are also designated as potential rail stations, will be subject to a future alternatives analysis process. The size assumptions used for the Park-and-Rides are for planning purposes only and will change as future studies are implemented. Regional Connector Service Regional Connector Service (see Figure 4) will focus on cost-effective regional connections to the Carrollton Park-and-Ride, Dallas Central Business District (CBD), DFW International Airport, Fort Worth CBD and Frisco. The Regional Connector Service will rely heavily on the Park-and-Ride lots along 1-35E and 1-35W, SH-121, as well as the transk hub in Denton. Headways for the Regional Service i are recommended at 30-minutes during peak and 60-minutes during off-peak. Over-the-road coaches are recommended for the Regional Connector Service component of the plan, and buses will be able to use the HOV/Bus Lanes on 1-35E planned from Lewisville to the Dallas CBD. The Regional Connector Service is recommended as an interim measure in the corridors where rail service will be implemented. As rail service is introduced and expanded in the County, these routes will be discontinued or changed to provide additional feeder service into the rail lines. iTrans FIGURE 4: PARK-AND-RIDES/]~d~GIONAL RAIL AND BUS FACILITIES AND ]~d~GIONAL CONNECTOR SERVICE - ~ ,,, ,~ ~ /'~ ,, : ~~~ ~ .... ,.' ; "~1 Plane To F o~W o~h CBD DFW Airpo~ To Dali ~ C BD iTrans Feeder and Local Bus Service Feeder and Local Bus service is also recommended for Denton County (see Figure 5). The service will become the key connector between the smaller communities in the periphery of the County with the larger cities and towns. The feeder and local routes will rely on the Park-and- Ride transfer points throughout the County for connections to other modes and services. These routes will also be a key element to the Regional Connector Bus Service through timed transfers. The Service is conceived to operate at 30-minute headways during peak periods and 60-minute headways during off-peak times. The City of Denton's LINK service will continue to operate, with possible additional routes to better serve the University of North Texas (LINT) and Texas Women's University (TWU), and an extended line to serve the North Central Texas College campus in Corinth. Local bus service is also recommended for Lewisville. The local routes were developed using 30-minute headways, consistent with the current LINK service. Small buses (20-30 passengers) are recommended for both the Feeder and Local Service. Demand Response Service Demand response service is currently available for elderly and disabled residents of Denton County through SPAN and the City of Denton. The current service will be expanded so that the general public will also be able to use the service. Because this service is required to give seniors and disabled residents mobility, it must be included in the plan. The expanded service will also give the transit-dependent and those who choose not to drive added mobility as well. The demand response service that is recommended for Denton County is made up of twelve zones (see Figure 6). Each zone will be served by one to three vans and can be expanded as demand warrants. The Demand Response zones will provide On-call service (one hour response time) similar to DART On Call, The T Rider Request, and LINK Dial-a-Ride Zones. Each zone will be focused around at least one Park-and-Ride transfer point to provide access to the rest of the County and the region. Trans FIGURE 5: FEEDER AND LOCAL BUS SERVICE ~a~j~r [ Ponde~ ,/ Denton No~h Lake Pi~ot Point Foil SeEIme~t 1 and 2 Rail Stations (interim Regional Bus Park-and-Rides) ~ Othe~ Regional Bus Park-and-Rides ~, Demand Respe~se~F eeder Bus Interface Trans FIGURE 6: DEMAND RESPONSE SERVICE I I iTrans Local Assistance/Corridor Preservation The plan also recommends Local Assistance funding for communities to help facilitate the public transportation system, in addition to funding for corridor preservation for the travel corridors described earlier. Funding for the local assistance program would range between $1 million and $1.5 million annually. The Local Assistance program will allow communities to enhance the public transportation system through: · Roadway, intersection, and interchange improvements; · Ramp metering; · Intelligent Transportation System (ITS) improvements; · Ridesharing; · HOV lanes on arterials and freeways in selected areas; · Vanpools; · Environmental mitigation; and · Signalization upgrades. Short-Term Capital and Operating Costs Capital and operating costs have been developed for each of the recommended services for Denton County for the first 10 years of services. Capital and annual transit operating costs, assuming an aggressive funding scenario (see the "Financing Plan" section) are shown below. Note: the operating and maintenance costs shown do not include debt service. Regional Rail (Segments 1 & 2) $240.0 million $4.3 million P ark- and-Ride $15.8 million N/A * Regional Connector Service $6.0 million $2.7 million Feeder/Local Bus $4.8 million $2.3 million Demand Response $1.3 million $1.5 million Local Assistance/Corridor Preservation $13.5 million N/A Total $ 281.4 million $10.8 million *Operating and maintenance costs for park-and-ride facilities are included in annual operating costs for transit elements Financing Plan In the planning effort, two 25-year plans were developed for consideration. The two scenarios for Authority funding are labeled "Conservative" and "Aggressive." The Conservative funding scenario assumes an across-the-board 1/4-percent sales tax for all communities in Denton County eligible to participate. This results in a first-year sales tax intake of approximately $9 million. The Aggressive scenario also includes the across-the-board 1/4- percent sales tax, but assumes that cities with populations above 12,000 contribute an extra 1/4- percent increment of sales tax in return for extra services, as permitted by law. Cities currently eligible to contribute the additional sales tax include Denton, Lewisville, Corinth, Flower Mound, and Highland Village; in addition, The Colony is technically eligible under HB 3323 to contribute the extra 1/4-percent sales tax but currently does not have the sales tax capacity to do so, though it may have such capacity in the future. iTrans Economic growth is also important in developing the financing plan for Demon County. Demon County has seen significant sales tax growth over the past few years (an increase of 5-8 percent annually from 1998-2000). With the slowing of the economy in 2001 and 2002, it is assumed that this high growth rate in sales tax cannot be expected to sustain itself. Keeping that in mind, the project team has used an annual sales tax growth rate of 2.5 percent. It is important to note that this only accounts for population growth and does not account for inflation. Several other factors are important contributors to the financial analysis in support of the financial plan: · Debt service is included in both the Conservative and Aggressive scenarios. Debt financing of $188 million is included in the conservative scenario in two series of debt issuances beginning in years 1 and 9 of the overall plan. The Aggressive scenario includes $170 million in debt financing in one issuance series in years 1 through 6. · Federal funds are included in the financial plan in two ways. Formula funds (available to transit agencies based on population and ridership) are included at a growth rate of approximately 2.5 percent over 25 years. In addition, federal "new starts" funding for major transportation projects is included at approximately one-third the cost of all rail components of the plan. · Farebox revenues are included at different rates depending on the type of service provided. Using national standards, it is assumed that farebox revenues will pay for 50 percent of all regional connector bus operating costs, 25 percent of all feeder/local bus and demand-response operating costs, and 40 percent of all regional rail operating costs. The financial scenarios developed for this Service Plan are conceptual and preliminary in nature using a wide range of assumptions that may vary once the overall plan is implemented. The Service Plan, both proposed services and financial arrangements, may change in the future subject to modifications based on election results. Recommended Sales Tax Rate HB 3323 requires that the Service Plan recommend a proposed sales tax rate. This Service Plan proposes a %percent uniform sales tax to support the authority's services. The Aggressive financial scenario is predicated on cities of 12,000 or more population contributing an additional %-percent sales tax. HB 3323 states, "The imposition of an authority's sales and use tax must be approved at an election and may not be imposed in an area that has not confirmed the authority." As noted below in "Next Steps," the election to confirm the authority is planned for November 5, 2002; a later election is required to impose the sales tax. Phasing and Staging The two financial scenarios described above are directly related to a phasing and staging (or implementation) schedule for the Service Plan's various elements. The following tables describe the proposed implementation plan for the Service Plan using the Conservative financial scenario and the Aggressive scenario. The first year in the milestones shown below will be the year following voter approval of the sales tax to finance the Authority's services (note: these assumptions may change depending upon the number of entities that participate in the Authority). iTrans MILESTONES USING CONSERVATIVE FINANCIAL SCENARIO 1 1Et half opens 1/3 open 1Et half opens 1Et half opens 2 1/3 open 3 1/3 open 4 2nd half opens 2nd half opens 2nd half opens 7 Segment 1 Opens 13 Segment 2 Vtleet replaced Vtleet replaced Vtleet replaced Opens 16 Vtleet replaced Vtleet replaced 25 Vtleet replaced Vtleet replaced Vtleet replaced MILESTONES USING AGGRESSIVE FINANCIAL SCENARIO 1 Entire system 1/3 open Entire system Entire system opens opens opens 2 1/3 open 3 1/3 open 5 Segment 1 Opens 7 Segment 2 Opens 10 13 Fleet replaced Fleet replaced Fleet replaced 25 Fleet replaced Fleet replaced Fleet replaced NEXT STEPS The Authority's Interim Executive Committee (IEC) approved this Service Plan on June 13, 2002. Before August 9, 2002, each of the city councils in communities with more than 12,000 population will consider a resolution to approve the Service Plan and proposed tax rate. In an election on November 5, 2002, Denton County voters will consider the confirmation of the Authority. If confirmed by the voters, the IEC becomes the DCTA Executive Committee. The Executive Committee will then refine the service plan and proposed finance plans to reflect voting resuks and request that Denton County cities schedule an election for approval of a sales tax to support development of the regional transportation services. Detailed planning and implementation of the system will begin following an affirmative vote to establish the sales tax. Trans BACKGROUND TECHNICAL REPORT More detailed information on all aspects of the Service Plan is included in a separate document, Denton County Transportation Authority Service Plan Technical Report. COMPLIANCE WITH LEGISLATION HB 3323 specifies a number of issues for the Authority to consider as it developed its Service Plan. Those issues are aimed at ensuring that the Plan meets certain minimum requirements for service delivery, cost-effectiveness, and neighborhood compatibility. The table below lists those issues and specifies where in the Technical Report those issues are addressed. 1. Regional thoroughfare plans Listed in Section 2.3 2. Traffic counts Listed in Section 2.3 3. Feasible alternative modes Section 3 lists all potential modes 4. Location of collection and transfer points Section 4.2 details park-and-rides 5. Alternative routes linking access and Section 4.2 details park-and-rides discharge points 6. Alternative alignments using least populous Section 4; alignments focus on highways and areas if right-of-way acquisition is required railroads, minimizing right-of-way needs 7. Estimates of capital expenditures Section 4.7 lists capital costs 8. Costs and cost-effectiveness Discussed in Section 5 and Appendix 9. Administrative overhead costs Section 4.7 discusses operating costs; administrative costs are part of that factor 10. Load factors (ridership) Section 4.8; NCTCOG trip tables were used to determine ridership estimates 11. Fare structure Section 5.1 discusses farebox recovery assumptions for each element 12. Revenue from all sources Financial plan in Section 5.1 13. Cost per rider Appendix 2 analyzes cost per rider 14. Joint use of other transit systems Joint use to be negotiated on a case-by-case basis; financial plan assumes costs and revenues regardless of which entity administers plan 15. Segment revenue (profit-loss) analysis Section 5.1 discusses farebox recovery assumptions for each element Agenda 02-021 06/18/02 WS#2 AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET June 18,2002 Development Services (Engineering) Utilities (Streets) Dave Hill, 349-8314 Howard Martin, 349-8232 SUBJECT Receive a report, hold a discussion, and give staff direction regarding the use of a sales tax option to fund local street maintenance and repair, and to assess other municipal sales tax options. BACKGROUND Transportation is regarded as one of the highest Council priorities. City of Denton staff divides roadway improvement programming into two categories: Regionally Significant Roadways and Local Streets. Regionally Significant Roadways typically include major freeways, arterials, and farm-to-market roads, many of which are federally or state-designated routes [I-35, Loop 288, US 77 (Elm-Locust), US 377 (Fort Worth Drive), US 380 (University), FM 2181 (Teasley), FM 426 (McKinney), FM 2499 (State School Road), FM 1830 (Country Club), FM 2449 (Ponder Road), FM 2164 (North Locust), FM 429 (Sherman)]. Since these roads carry both local and regional traffic, funding for improvements normally involves parmership funding from federal, state, regional, county, and/or city funding, in addition, federal and state procedures must be followed as a condition of funding. Funding has been secured for several regionally significant roadways, including Loop 288 ($15 million), US 77 ($13 million), US 380 ($ million), FM 2181 ($17 million), FM 416 ($6 million), and US 377 ($2 million). Construction has begun or will soon commence on US 77 (2002), US 380 (2002), Loop 288 (2003), and FM 2181 (2003). Many of these projects have involved city participation with other governmental agencies. City funding estimated at $15 million has helped to leverage more than $125 million in total construction funding for regional roadways. Local Streets include most of the City of Denton streets that are designated as collectors or residential streets and are owned by the city. Historically, maintenance and minor repairs have been funded through the General Fund, with some major resurfacing and reconstruction projects funded by the Capital improvements Program (General Obligation bonds, also through the General Fund). A majority of local streets are built by private developers according to city standards and specifications, and dedicated to the city upon successful completion. As a result, the inventory of local streets continues to grow in proportion to new development. Several local streets carry more than "local" traffic. Local arterials and collectors such as Windsor, Bonnie Brae, Ryan, Hobson, Robinson, Hickory Creek Road, Mayhill, Spencer, Woodrow, Colorado, Mingo, Kings Row, San Jacinto, Malone, Oak, Hickory, and others carry both resident and nonresident traffic. With rare exceptions, the City of Denton is solely responsible for funding the maintenance and repair of these streets. In contrast to regional roadways, funding for local streets has lagged far behind the demand for maintenance and repair. The General Fund operations and maintenance budget for local streets has increased from $1.6 million in fiscal year 1993-94 to $2.6 million in 2001-02, yet the backlog of local street repair projects continues to grow. The recent addition of a crack-sealing crew and a street construction crew in the last two years has been helpful, but growth in development and traffic exceeds resources needed to address the problem. Since 1993, the inventory of streets for which the city is responsible has grown from 711 to 1,315 lane miles, which represents an 85% increase in maintenance responsibilities accepted by the city over a period of nine years. Maintenance projects that involve less expensive crack-sealing now require more expensive street resurfacing or reconstruction when deferred to a later date. An estimate of funding needs indicates that $40 - 50 million will be needed to address local street repair requirements over the next 10 years, or an average of up to $5 million annually, based on current data. In May 2001, the 77th State Legislature authorized the imposition of a V4% (¼ of 1 percent) municipal sales tax dedicated to local street maintenance (see Attachments #1 & #2 - House Bill 445). By definition, the sales tax, if approved by a municipality, may not be used to maintain federal, state, or county roads. A municipality must hold an election to adopt the sales tax on a uniform election date. If approved by city voters, the sales tax becomes effective at the beginning of the second calendar quarter following the election. The sales tax must be reauthorized within four years of its effective date or it expires. Based upon projected 2001-02 City of Denton sales tax revenue of approximately $16.6 million, the additional V~% sales tax would generate an estimated $2.7 million for local street maintenance and repair, based on 2001 City of Denton sales tax data. A listing of other Texas cities that have enacted a local streets sales tax is provided in Attachment #3. OPTIONS This work session topic has been placed on the June 18th Council agenda to be considered in conjunction with the Denton County Transportation Authority (DCTA) decision that will have to be made in the near future. The City of Denton currently has the capacity to increase local sales tax by ~1%, and two DCTA options have been identified that will require either a V4% or a ~o sales tax to support regional transit. The local streets ¼% sales tax represents a funding option that could be affected by Council's DCTA decision regarding the city's sales tax options. A summary of other sales tax options available to Texas cities is provided as Attachment #4. RECOMMENDATION The capacity of existing General Fund revenues to support local streets maintenance and repair at a reasonable level is limited, particularly as the rate of developmental growth increases. In addition, the City of Denton continues to accommodate increasing levels of nonresident travel on local streets. The use of the ¼% sales ttx to supplement existing General Fund levels would be an equitable method to fund local street repairs by assessing the costs to both residents and the growing number of nonresidents who use city streets. If Council decides to pursue the local streets sales tax option, staff recommends the implementation of a pavement management system to enable clear and concise evaluation of city streets. The interim use of existing streets data can be used to determine repair priorities for the next year or two; however, a better decision-making tool will be needed to evaluate not just the pavement surface, but the base and sub-base conditions as well. Funding capacity to finance the pavement management system will be reserved in the 2002-03 Streets Division budget. One of the major problems encountered in street repair is the assessment of the street base under the pavement section. In some cases, resurfacing projects have been initiated only to find that base failures require complete reconstruction. The September l0th Long Range Planning Session will be devoted to the topic of Streets and Regional Transportation; at that time the pavement management system will be presented to the City Council. ESTIMATED PROJECT SCHEDULE An expedited schedule for a local streets %% sales tax would be as follows: June 25, 2002 Council calls for election September 14, 2002 Date of election (Uniform Election Date is required) October - December 2002 Passage of a full calendar quarter January 1, 2003 Effective date of local streets sales tax The next available schedule would be as follows: August 20, 2002 Council calls for election November 5, 2002 Date of election January - March 2003 Passage of a full calendar quarter April 1, 2003 Effective date of local streets sales tax The third available schedule would be as follows: November 19, 2002 Council calls for election February 1, 2003 Date of election April - June 2003 Passage of a full calendar quarter July 1, 2003 Effective date of local streets sales tax PRIOR ACTION/REVIEW The fa'st imposition of a sales tax in the City of Denton was effective on April 1, 1968, when a 1% rate was adopted. Effective October 1, 1994, an additional 1~o rate was adopted for property tax relief. The state sales tax rate is 61/~°/0; Texas cities may adopt a maximum of an additional 2% local rate. The City of Denton enacted a 11~o rate as of October 1994, with the capacity to approve an additional 1~o rate. FISCAL INFORMATION For each calendar quarter, approximately $675,000 in sales ax revenue would become available for local street repair and maintenance (based on 2001 sales tax data) if the 1/~o/0 sales tax is enacted. If property taxes were used to finance $2.7 million in street repairs annually, an approximate 8-cent tax increase per $100 assessed value would be needed ($0.54815 to $0.62833), based on fiscal year 2001- 02 budget and appraisal district data. ATTACHMENTS 1. House Bill 445 - Enrolled Version 2. House Bill 445 - Fiscal Notes & Bill Analysis 3. List of Texas Cities that have imposed a 1/4% local street sales tax 4. Municipal Sales Tax Options 5. Map - Inventory of City Street Conditions (to be displayed at work session) Respectfully submitted: Dave Hill Assistant City Manager - Development Services Howard Martin Assistant City Manager - Utilities House Bill 445- Enrolled Version Legislature 77th Texas State AN ACT relating to the imposition by certain municipalities of a sales and use tax dedicated to street maintenance. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Subtitle C, Title 3, Tax Code, is amended by adding Chapter 327 to read as follows: CHAPTER 327. MUNICIPAL SALES AND USE TAX FOR STREET MAINTENANCE Sec. 327.001. DEFINITION. In this chapter, "municipal street" means the entire width of a way held by a municipality infee or by easement or dedication that has a part open for public use for vehicular travel. The term does not include a designated state or federal highway or road or a designated county road. Sec. 327.002. MUNICIPAL SALES AND USE TAX ACT APPLICABLE. Except to the extent that a provision of this chapter applies, Chapter 321 applies to the tax authorized by this chapter in the same manner as that chapter applies to the tax authorized by that chapter. Sec. 327.003. TAX AUTHORIZED. (a) A municipality may adopt the sales and use tax authorized by this chapter at an election held in the municipality. (b) A municipality may not adopt a tax under this chapter if as a result of the adoption of the tax the combined rate of all sales and use taxes imposed by the municipality and other political subdivisions of this state having territory in the municipality would exceed two percent at any location in the municipality. (c) If the voters of a municipality approve the adoption of the tax at an election held on the same election date on which another political subdivision adopts a sales and use tax or approves the increase in the rate of its sales and use tax and as a result the combined rate of all sales and use taxes imposed by the municipality and other political subdivisions of this state having territory in the municipality would exceed two percent at any location in the municipality, the election to adopt a sales and use tax under this chapter has no effect. Sec. 327.004. TAX RATE. The rate of the tax authorized by this chapter is one-fourth of one percent. Sec. 327.005. SALES AND USE TAX EFFECTIVE DATE. (a) The adoption of the tax takes effect on the first day of the first calendar quarter occurring after the expiration of the first complete calendar quarter occurring after the date on which the comptroller receives notice of the results of the election. (b) If the comptroller determines that an effective date provided by Subsection (a) will occur before the comptroller can reasonably take the action required to begin collecting the tax, the effective date may be extended by the comptroller until the first day of the next succeeding calendar quarter. Sec. 327.006. ELECTION PROCEDURE. (a) An election to adopt the tax authorized by this chapter is called by the adoption of an ordinance by the governing body of the municipality. (b) At an election to adopt the tax, the ballot shall be prepared to permit voting for or against the proposition: "The adoption of a local sales and use tax in (name of municipality) at the rate of one-fourth of one percent to provide revenue for maintenance and repair of municipal streets." Sec. 327.007. REAUTHORIZATION OF TAX. (a) Unless imposition of the sales and use tax authorized by this chapter is reauthorized as provided by this section, the tax expires on: (1) the fourth anniversary of the date the tax originally took effect under Section 327.005; or (2) the first day of the first calendar quarter occurring after the fourth anniversary of the date the tax was last reauthorized under this section. (b) An election to reauthorize the tax is called and held in the same manner as an election to adopt the tax under Section 327.006, except the ballot proposition shall be prepared to permit voting for or against the proposition: "The reauthorization of the local sales and use tax in (name of municipality) at the rate of one- fourth of one percent to continue providing revenue for maintenance and repair of municipal streets." (c) If an election to reauthorize the tax is not held before the tax expires as provided by Subsection (a), or if a majority of the votes cast in an election to reauthorize the tax do not favor reauthorization, the municipality may not call an dection on the question of authorizing a new tax under this chapter before the first anniversary of the date on which the tax expired. (d) Not later than the 10th day after the date the municipality determines that the tax will expire as provided by Subsection (a), the municipality shall notify the comptroller of the scheduled expiration. The comptroller may delay the scheduled expiration date if the comptroller notifies the municipality that more time is required. The comptroller must provide a new expiration date that is not later than the last day of the first calendar quarter occurring after the notification to the comptroller. Sec. 327.008. USE OF TAX REVENUE. Revenue from the tax imposed under this chapter may be used only to maintain and repair municipal streets existing on the date of the election to adopt the tax. SECTION 2. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September '1,200'1. House Bill 445- Fiscal Notes & Bill Analysis 77th Texas State Legislature LEGISLATIVE BUDGET BOARD Austin, Texas FISCAL NOTE, 77th Regular Session May 15, 2001 TO: Honorable James E. "Pete" Laney, Speaker of the House, House of Representatives FROM: John Keel, Director, Legislative Budget Board IN RE: HB445 by Goodman (Relating to the imposition by certain municipalities of a sales and use tax dedicated to street maintenance.), As Passed 2nd House * No significant fiscal implication to the State is anticipated. * The bill would add a new chapter in the Tax Code to create a municipal sales tax with the rate of 0.25 percent for street maintenance. A tax levied under the new chapter would have to be approved at an election held within the municipality. Revenue from such a tax could only be used to maintain and repair streets existing on the date of the election to adopt the tax. A municipality would not be able to adopt the tax if, as a result of the adoption of the tax, the combined rate of all sales and use taxes imposed by the municipality and other political subdivisions having territory in the municipality would exceed 2 percent at any location in the municipality. The adoption of a tax authorized by this chapter would take effect on the first day of the first calendar quarter occurring after the expiration of the first complete calendar quarter occurring after the date on which the Comptroller received notice of the election results. The sales and use tax would expire on the fourth anniversary of the date the tax originally took effect unless reauthorized by approval through an election held prior to that date. If an election on reauthorization is not held prior to the expiration date or if the election is held and the voters do not favor reauthorization, a municipality could not call an election on the question of authorizing a new tax before the first anniversary of the date on which the previous tax expired. The bill would take effect immediately upon enactment, assuming that it received the requisite two-thirds majority votes in both houses of the Legislature. Otherwise, it would take effect September 1,2001. Local Government Impact Municipalities surveyed indicated that street repair and maintenance costs range from $12-$16 million. Municipalities with an average population of 300,000 estimate that they could collect an additional $4.5 million annually in revenue based upon the p'ovisions in the bill. Smaller municipalities (population less than 50,000) estimate an annual revenue gain of $1 million. The municipalities would continue to experience this revenue gain to help pay expenses for street repair and maintenance for the four-year period in which the sales and use tax would be in effect. House Bill 445- Bill Analysis Source Agencies: 304 Comptroller of Public Accounts LBB Staff: JK, DB HBA-AMW, CBW H.B. 445 77(R) BILL ANALYSIS Office of House Bill Analysis H.B. 445 By: Goodman Ways & Means 7/19/2001 Enrolled BACKGROUND AND PURPOSE Many city streets have deteriorated because of a lack of funding for repairs and maintenance. Municipalities use some of their tax revenue for the repair and maintenance of streets. Prior to the 77th Legislature, certain municipalities were prohibited from adopting an additional sales and use tax. House Bill 445 allows a municipality to adopt a one-fourth of one percent municipal sales and use tax for the maintenance and repair of municipal streets if approved by a majority of registered voters. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. ANALYSIS House Bill 445 amends the Tax Code to create a municipal sales and use tax for the maintenance of municipal streets (maintenance tax). The bill authorizes a municipality to adopt the maintenance tax, at an election held in the municipality, at a rate of one-fourth of one percent and authorizes the use of tax revenue only to maintain and repair municipal streets existing on the date of the election. The bill prohibits a municipality from adopting a maintenance tax if, as a result of the adoption of the tax, the combined rate of all sales and use taxes imposed by the municipality and other political subdivisions of this state having territory in the municipality would exceed two percent at any location in the municipality. The bill provides that an election to adopt a maintenance tax has no effect if the voters of a municipality approve the adoption of the tax at an election held on the same election date on which another political subdivision adopts a sales and use tax or approves the increase in the rate of its sales and use tax and as a result the combined rate of all sales and use taxes imposed by the municipality and other political subdivisions of this state having territory in the municipality would exceed two percent at any location in the municipality. H.B. 445 sets forth procedures for calling an election to adopt a maintenance tax, including ballot requirements, and establishes procedures related to the adoption of such a tax. The bill specifies that unless the imposition of the maintenance tax is reauthorized, the tax expires on the fourth anniversary of the date the tax originally took effect or the first day of the first calendar quarter occurring after the fourth anniversary of the date the tax was last reauthorized. An election to reauthorize the maintenance tax is called and held using the same procedures used for the election to adopt the maintenance tax, except that the bill sets forth different requirements regarding the language of the ballot proposition. The bill prohibits a municipality from calling an election on the question of authorizing a new maintenance tax before the first anniversary of the date on which the tax expired if the election to reauthorize the maintenance tax is not held before the tax expires or if a majority of the votes cast in an election to reauthorize the tax do not favor reauthorization. The bill requires the municipality to notify the comptroller of public accounts (comptroller) of the scheduled expiration of the maintenance tax not later than the 10th day after the date the municipality determines that the tax will expire. The bill authorizes the comptroller to delay the scheduled expiration date if the comptroller notifies the municipality that more time is required, and specifies that the comptroller must provide a new expiration date that is not later than the last day of the first calendar quarter occurring after the notification to the comptroller. EFFECTIVE DATE June 11,2001. From "Window on State Government" Texas Comptroller of Public Accounts Website The following cities have imposed an additional City Maintenance and Repair, effective Jul 1, 2002: Sales and Use Tax for Municipal Street City/County Name ? Bartonville (Denton Co) Local Code Local Rate Total Rate 2061211 .017500 .080000 Evant 2097031 .012500 .080000 Coryell Co 4050009 .005000 Evant 2097031 .012500 .080000 HamiRon Co 4097004 .005000 Hickory Creek (Denton Co) Pantego (Tarrant Co) 2061186 .012500 .075000 2220148 .017500 .080000 2205030 .017500 .080000 Taft (San Patricio Co) ? The City of Bartonville has imposed an additional city sales and use tax for Industrial and Economic Development and Municipal Street Maintenance and Repair. The following cities have imposed an additional City Sales and Use Tax for Municipal Street Maintenance and Repair, effective April 1, 2002: City/County Name Bee Cave (Travis Co) Bertram (Bumet Co) Grand Prairie (Dallas Co) Grand Prairie (Ellis Co) Grand Prairie (Tarrant Co) Haltom City (Tarrant Co) Haltom City Crime Control District Lakeway (Travis Co) Sansom Park (Tarrant Co) Sansom Park Crime Control District South Houston (Harris Co) South Houston Crime Control and Prevention District Van Horn (Culberson Co) Windcrest (Bexar Co) II Loc~Code II LocalRate II TotalRate II 2227150 II ,0~7~00 II ,080000 II 2027045 II .017500 II .080000 II 2220013 II .020000 II .082500 II 2220013 II .o2oooo II .o825oo II 2220013 II .o2oooo II .o825oo II 2220255 II .o17~oo II .o82~oo II 5220530 II .oo25oo II II 2227061 II .o125oo II .o75ooo II 2220068 II .OlSOOO II .o825oo II 5220674 II .oo~ooo II II 2101188 II .o125oo II .077500 5101552 .002500 II 2osso13 II .o175oo II .o8oooo II 2015094 II .o175oo II ,o8oooo The following city has imposed an additional City Sales and Use Tax for Municipal Street Maintenance and Repair, January 1, 2002: City/County Name Sunset Valley (Travis Co) Local Code Local Rate Total Rate 2227070 .017500 .08000 Municipal Sales Tax Options Cities may collect up to two percent for local sales tax for the following purposes: · General Fund revenue o The City of Denton currently collects 1% in this category · Property Tax Reduction o The City of Denton currently collects 1/2% in the category Economic Development (4A & 4B) o Can range from 1/8 to 1/2 percent o Projects include economic development programs and incentives, infrastructure improvements, municipal facilities, recreation, etc. Sports Venue o Grand Prairie has V~% for improvements to their parks department athletic fields. used 4B economic development tax for Lone Star Park.) (They Transit. Cities may create municipal transit departments and impose a transit sales tax for either 1Aor 1~o. The funds may be spent on the transit department system for such things as purchase or property and facilities. · Street Maintenance. Revenue from this 1/~% sales tax may only be used to maintain and repair municipal streets existing on the date of the election to adopt the tax. · Crime Control and Prevention Districts. Cities may create crime control districts and collect sales tax from 1/8 to 1~o. The purpose of the tax is to support crime reduction programs. · Fire Control District. Fire control districts may impose from 1/8 to 1~o sales tax to finance the operation of fire control, prevention, and emergency medical services. Other Special Purpose Districts o Library Districts o Healthcare/hospital districts Agenda 02-021 06/18/02 WS#3 AGENDA DATE: DEPARTMENT: CM: AGENDA INFORMATION SHEET June 18, 2002 City Manager's Office Mike Conduff SUBJECT Discuss the nomination process for the City's Boards and Commissions. BACKGROUND The City of Denton has fifteen standing boards and commissions. With the exception of the Civil Service Commission whose members are appointed by the City Manager and the Denton Housing Authority whose members are appointed by the Mayor, the Council is responsible for making nominations and approving appointments to these boards and commissions. Section 8.3 of the Council Rules of Procedure details the Council philosophy for boards and commission nominations: · Council Members making nominations for members to the boards and commissions will consider interested persons on a citywide basis. The City Council will make an effort to be inclusive of all segments of the community in the board and commission appointment process. City Council Members will consider ethnicity, gender, socio-economic levels, and other factors to ensure a diverse representation of Denton citizens. The City Council will take into consideration an individual's qualifications, willingness to serve, and application information in selecting nominations for membership to each board and commission. In an effort to ensure maximum citizen participation, City Council Members will continue the general practice of nominating new citizens to replace board members who have served three consecutive, full terms on the same board. Each City Council Member is responsible for making nominations for board and commission places assigned to him or her, which may correspond to the Council Member's place. Individual City Council Members will make nominations to the full City Council for the Council's approval or disapproval. Council back-up contains a copy of a brochure that outlines the basic duties of each board and commission plus a preliminary list of the expiring terms on each board and the council member assigned to provide a nomination for each of those positions. At the June 18th meeting, Council will be receiving a notebook containing the following information: · Member Responses - information on whether the current member wishes to be considered for reappointment · Board Preference Chart - a chart listing each application received and the board/commission requested · Applications - applications are kept on file for 2 years for Council consideration · Attendance Information - number of meetings held and number attended by each board/commission member · Current members - names, addresses and phone numbers of current board/commission members · Enabling Legislation - detailed information on the duties of each board and commission and how it was created Council is asked to use the next four weeks to prepare for the July 23rd Council luncheon at which time nominations to the boards and commissions will be discussed. Council is asked to provide the City Secretary the names and addresses of those individuals they wish to nominate during this time and a compiled list will be provided in the July 19th council back-up information. The agenda for the July 23rd luncheon will include a closed session to allow Council the opportunity, if desired, to discuss membership on decision- making boards in closed session. Any revisions made at the luncheon to the nomination list will be supplied to Council before the regular session that evening. Respectfully submitted: Jennifer Walters City Secretary r- 0 (D (D 0 I~ (D 0 0(5 ~?~ o ~0~ · - .E o~ Board Council Members with nominations Airport Advisory Board Animal Shelter Advisory Board Community Development Adv. Cmte. Phillips McNeill Montgomery Brock Redmon Fulton Montgomery Burroughs Phillips Montgomery Brock All - 2 positions Construction Adv. & Appeals Board Fulton McNeill Historic Landmark Commission Human Services Advisory Committee Fulton McNeill Brock All- 1 position Fulton McNeill Burroughs All - 2 positions Library Board Phillips McNeill Brock Parks, Rec. and Beautification Board Fulton Phillips McNeill Planning and Zoning Commission Phillips Montgomery Burroughs Public Utilities Board McNeill TMPA All Traffic Safety Commission Redmon Fulton Burroughs All - 2 positions Zoning Board of Adjustment Fulton Montgomery Agenda 02-021 06/18/02 #11 CITY OF DENTON CITY COUNCIL MINUTES May 7, 2002 The City of Denton City Council convened in the Work Session Room on Tuesday, May 7, 2002 at 5:00 p.m. to attend a reception honoring Mayor Pro Tem Roni Beasley. After determining that a quorum was present, the City Council convened in a Regular Meeting on Tuesday, May 7, 2002 at 6:30 p.m. in the Council Chambers at City Hall, 215 E. McKinney Street. PRESENT: Mayor Brock; Mayor Pro Tem Beasley; Council Members Burroughs, Fulton, McNeill, Phillips, and Redmon. ABSENT: None 1. Pledge of Allegiance The Council and members of the audience recited the Pledge of Allegiance to the U.S. and Texas flags. 2. The Council considered adoption of an ordinance canvassing the returns and declaring the results of a recall election held in the City of Denton on May 4, 2002; and providing an effective date. Jennifer Walters, City Secretary, read the final vote totals for the recall election. The following ordinance was considered: NO. 2002-124 AN ORDINANCE CANVASSING THE RETURNS AND DECLARING THE RESULTS OF A RECALL ELECTION HELD IN THE CITY OF DENTON ON MAY 4, 2002; AND PROVIDING AN EFFECTIVE DATE. Fulton motioned, Burroughs seconded to adopt the ordinance declaring that Raymond Redmon was not recalled. On roll vote, Beasley "aye", Burroughs "aye", Fulton "aye", McNeill "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carded unanimously. 3. The Council considered adoption of an ordinance canvassing the returns and declaring the results of the regular municipal election held in the City of Denton Texas, on May 4, 2002; and providing an effective date. Jennifer Walters, City Secretary, read the final vote totals for the election. The following ordinance was considered: NO. 2002-125 AN ORDINANCE CANVASSING THE RETURNS AND DECLARING THE RESULTS OF THE REGULAR MUNICIPAL ELECTION HELD IN THE CITY OF DENTON TEXAS, ON MAY 4, 2002; AND PROVIDING AN EFFECTIVE DATE. City of Denton City Council Minutes May 7, 2000 Page 2 McNeill motioned, Beasley seconded to adopt the ordinance declaring Bob Montgomery elected in Place 5; Mark Burroughs elected in Place 6; and Euline Brock elected in Place 7-Mayor. On roll vote, Beasley "aye", Burroughs "aye", Fulton "aye", McNeill "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carded unanimously. 4. The Council considered approval of a Resolution of Appreciation for Mayor Pro Tem Roni Beasley. Burroughs motioned, Fulton seconded to approve the resolution. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carded unanimously. 5. Oath of Office administered to newly elected Council Members. Jennifer Walters, City Secretary, administered the oath of office to Bob Montgomery, Place 5; Mark Burroughs, Place 6; and Euline Brock, Place 7-Mayor. 6. Election of Mayor Pro Tem. Mayor Brock opened the floor for nominations for Mayor Pro Tem. Phillips motioned, Redmon seconded to nominate Council Member Fulton. McNeill motioned, Montgomery seconded to nominate Council Member Burroughs. On roll vote for Council Member Fulton, Burroughs "nay", Fulton "aye", McNeill "nay", Montgomery "nay", Phillips "aye", Redmon "aye", and Mayor Brock "nay". Motion failed with a 4-3 vote. On roll vote for Council Member Burroughs, Burroughs "aye", Fulton "nay", McNeill "aye", Montgomery "aye", Phillips "nay", Redmon "nay", and Mayor Brock "aye". Motion carded with a 4-3 vote. With no further business, the meeting was adjourned at 7:00 p.m. EULINE BROCK, MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES May 9, 2002 The City of Denton City Council convened in a Work Session on Thursday, May 9, 2002 at 8:30 a.m. in the Council Work Session Room in City Hall, 215 E. McKinney Street. PRESENT: Mayor Brock; Council Member Montgomery 1. The Council held a discussion and received staff reports to orient new City Council Members on City departments, procedures, processes and laws, which affect the Council Members' official duties. Staff presentations were made to Council Member Montgomery regarding department functions and procedures. 2. Meet and greet Council luncheon. Council Members Fulton, Redmon, and Phillips joined the meeting. During the luncheon, Dottie Palumbo, Assistant City Attorney, made a presentation regarding the Open Meetings Act and parliamentary procedures. She stated that e-mails sent to the Council could be deleted after they were no longer useful. A brief review of the Public Information Act was also discussed. With no further business, the meeting was adjourned at 1:30 p.m. EULINE BROCK. MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES May 14, 2002 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, May 14, 2002 at 4:30 p.m. in the Council Work Session Room at City Hall, 215 E. McKinney. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Fulton, McNeill, Montgomery, Phillips, and Redmon. ABSENT: None 1. The Council received a report, held a discussion and gave staff direction on amending the 2001-02 operating budget in order to add staff. Kathy DuBose, Assistant City Manger for Fiscal Services, reviewed the procedures for amending the budget per the Charter and stated that directors would be presenting information about requested positions that were not included in the current year's budget. Those positions were listed in the agenda materials. Consensus of the Council was to look at positions during the next fiscal year budgeting process and not proceed with an amendment to the budget at this point in time. 2. Staff responded to requests for clarification of consent agenda items listed on the consent agenda for today's City Council regular meeting of May 14, 2002. Special Called Meeting on Tuesday, May 14, 2002 at 6:30 p.m. in the Council Chambers at City Hall, 215 E. McKinney Street. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Fulton, McNeill, Montgomery, Phillips, and Redmon. ABSENT: None 1. Pledge of Allegiance The Council and members of the audience recited the Pledge of Allegiance to the U. S. and Texas flags. PROCLAMATIONS/PRESENTATIONS 2. Mayor Brock presented a proclamation for Law Enforcement Week and Law Memorial Day. 3. City Manager Conduff presented recognition of staff accomplishments. CITIZEN REPORTS 4. Karen Morgan regarding Tejas Storytelling Association. Karen Morgan briefed the Council on the Tejas Storytelling Festival and thanked the City for its support. City of Denton City Council Minutes May 14, 2002 Page 2 5. Carl Williams regarding glass ceiling and promotion within the City of Denton. Mr. Williams stated that he wanted to make the Council aware of complaints regarding the lack of African Americans employed at the City. The total workforce was 1008 and only 53 were African Americans. Mr. Williams suggested that the Council appoint a committee to promote African Americans, recruit African Americans at job fairs (City of Denton had not been represented at the UNT job fair), and request an EEOC audit. He requested a response from the City of Denton within 10 days. 6. Andee Chamberlain regarding curbside recycling program. Ms. Chamberlain was not present. 7. Jan Dickson representing Keep Denton Beautiful regarding recycling. Ms. Dickson recommended that the Council approve the contract to have recycling services in Denton. 8. Nell Yelldell regarding funding for assisted living for the elder and disabled in District 1. Ms. Yelldell was not present. 9. Frank Killoran regarding curbside recycling bid. Mr. Killoran, representing Abitibi Recycling, stated that Abitibi should be the company that was awarded the bid for recycling services. CONSENT AGENDA Mayor Brock requested that item #31 be pulled from the Consent Agenda due to a conflict of interest. Council Member Phillips requested that Item #26 be pulled from the Consent Agenda. Fulton motioned, Redmon seconded to approve the Consent Agenda items #10-34 and accompanying ordinances and resolutions with the exception of items #26 and #31. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carded unanimously. 10. Approved the minutes of April 2, 2002, April 9, 2002, and April 16, 2002. 11. Approved a request for an exception to the noise ordinance for the purpose of an outdoor music festival known as the Mark Fearing Benefit Concert scheduled for Sunday, May 19, 2002 during the hours of 1 p.m. to 8 p.m. at the North Texas State Fair Grounds. Specifically, the request was for an exception to the hours of operation. City of Denton City Council Minutes May 14, 2002 Page 3 Dave Randolph, 1027 Welch, Denton, 76201 submitted a comment card in support of the exception. 12. NO. 2002-126 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE CHANGE ORDER NUMBER ONE TO THE CONTRACT BETWEEN THE CITY OF DENTON AND ARCHER WESTERN CONTRACTORS, LTD.; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (ORDINANCE NO. 2001-439 - BiD 2734 - PECAN CREEK WATER RECLAMATION PLANT EXPANSION AWARDED TO ARCHER WESTERN CONTRACTORS, LTD. IN THE AMOUNT OF $16,930,000 AND CHANGE ORDER NUMBER ONE IN THE AMOUNT OF $71,852.03 FOR A TOTAL AMOUNT OF $17,001,852.03). 13. NO. 2002-127 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE CHANGE ORDER NUMBER TWO TO THE PROFESSIONAL SERVICES AGREEMENT (PSA) BETWEEN THE CITY OF DENTON AND HUITT-ZOLLARS, INC. FOR CONSTRUCTION PHASE SERVICES FOR THE SOLID WASTE FACILITIES AS SET FORTH IN THE CONTRACT WHICH ALLOWS ADDITIONAL SERVICES; AND PROVIDING AN EFFECTIVE DATE (ORDINANCE NO. 2001-375 FOR PSA 2685 - PROFESSIONAL SERVICES AGREEMENT TO HUITT- ZOLLARS, INC., IN THE TOTAL AMOUNT OF $202,900 (INCLUDING CHANGE ORDER ONE) AND CHANGE ORDER NUMBER TWO IN THE AMOUNT NOT-TO-EXCEED $67,200 FOR A TOTAL OF $270,100). 14. NO. 2002-128 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO ACCEPT AN iNTERLOCAL AGREEMENT WITH THE CITY OF GARLAND TO AUTHORIZE PARTICIPATION IN VARIOUS CITY OF GARLAND CONTRACTS FOR THE PURCHASE OF VARIOUS GOODS AND SERVICES; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (FILE 2849 - iNTERLOCAL AGREEMENT WITH THE CITY OF GARLAND, TEXAS). 15. NO. 2002-129 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT (PSA) WITH TEAGUE NALL AND PERKINS FOR THE DESIGN OF SPENCER ROAD (COLORADO BLVD. TO LOOP 288) AS SET FORTH IN THE CONTRACT; AND PROVIDING AN EFFECTIVE DATE (PSA 2815 - PROFESSIONAL SERVICES AGREEMENT FOR DESIGN OF SPENCER ROAD FROM COLORADO BOULEVARD TO LOOP 288 AWARDED TO TEAGUE NALL AND PERKINS FOR A TOTAL AMOUNT OF $325,630). City of Denton City Council Minutes May 14, 2002 Page 4 16. 17. 18. 19. 20. NO. 2002-130 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH RJN GROUP, INC. FOR ENGINEERING SERVICES RELATED TO THE INFLOW AND INFILTRATION STUDY AND REHABILITATION FOR EASTERN PECAN AND HICKORY CREEK DRAINAGE BASINS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (PSA 2830 - AWARDED TO RJN GROUP, INC. IN THE AMOUNT OF $407,282). NO. 2002-131 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF THE LEATHERWOOD 21" SANITARY SEWER; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 2820 - LEATHERWOOD SANITARY SEWER AWARDED TO PATCO UTILITIES, iNC. IN THE AMOUNT OF $130,645.65). NO. 2002-132 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF THE DENTON STORAGE YARD; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 2822 - DENTON STORAGE YARD AWARDED TO JONES AND JEFFERY CONSTRUCTION COMPANY, INC. IN THE AMOUNT OF $249,705). NO. 2002-133 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL PUBLIC WORKS CONTRACT FOR THE ACQUiSiTiON OF STREET AND DRAINAGE CONSTRUCTION PROJECTS AND MICRO SURFACING OF COLLECTOR OR ARTERLAL STREETS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 2823 (SECTIONS 1, 2, 6) - ANNUAL CONTRACTS FOR ASPHALT AND CONCRETE STREET CONSTRUCTION, ULTRA FLOW AND RCP PIPE, BOX CULVERTS FOR STORM SEWERS AND MICRO SURFACING, AWARDED AS LISTED iN EXHIBIT A OF THE ORDINANCE). NO. 2002-134 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR THE PURCHASE OF STORM SEWER PIPE AND BOX CULVERTS FOR STREET AND DRAINAGE RELATED PROJECTS; PROViDiNG EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE City of Denton City Council Minutes May 14, 2002 Page 5 DATE (BID 2823 (SECTIONS 3, 4, 5) - ANNUAL CONTRACT FOR ASPHALT AND CONCRETE STREET CONSTRUCTION, ULTRA FLOW AND RCP PIPE, BOX CULVERTS FOR STORM SEWERS AND MICRO SURFACING, AWARDED AS LISTED IN EXHIBIT A OF THE ORDINANCE). 21. NO. 2002-135 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE PURCHASE OF MISCELLANEOUS CONCRETE WORK; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BiD 2824 - ANNUAL CONTRACT CONCRETE WORK AWARDED TO FLOYD SMITH CONCRETE INC. IN THE ESTIMATED AMOUNT OF $1,400,000). 22. NO. 2002-136 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF CROSS TIMBERS PARK; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING FOR AN EFFECTIVE DATE (BiD 2828 - CROSS TIMBERS PARK AWARDED TO DEAN ELECTRIC, INC. DBA DEAN CONSTRUCTION IN THE AMOUNT OF $558,000). 23. NO, 2002-137 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF THE LOOP 288 30" WATERLINE; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTiVE DATE (BiD 2833 - LOOP 288 30" WATERLINE AWARDED TO TEXAS ELECTRIC UTILITY CONSTRUCTION, INC. IN THE AMOUNT OF $1,211,846.73). 24. NO. 2002-138 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE PURCHASE OF TIRE REPAIR AND TIRE CHANGING SERVICES; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 2806 - TIRE REPAIR AND TIRE CHANGING AWARDED TO PRO TIRE, iNC. IN THE ESTIMATED AMOUNT OF $40,000). 25. NO. 2002-139 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE PURCHASE OF PRINTER AND PLOTTER CARTRIDGES AND PARTS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 2831 - ANNUAL CONTRACT FOR THE PURCHASE OF PRINTER AND PLOTTER CARTRIDGES City of Denton City Council Minutes May 14, 2002 Page 6 AND PARTS AWARDED TO GDA MICRO TECHNOLOGIES, INC. IN THE ESTIMATED AMOUNT OF $54,434.90). 27. NO. 2002-141 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL PRICE AGREEMENT FOR CONCRETE UTILITY POLES; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 2836 - ANNUAL PRICE AGREEMENT FOR CONCRETE UTILITY POLES AWARDED TO LONESTAR PRESTRESS MANUFACTURING, INC. IN THE ESTIMATED AMOUNT OF $193,375). 28. NO. 2002-142 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE AN AQUATIC CENTER OPERATIONS AGREEMENT BY AND BETWEEN THE CITY OF DENTON, TEXAS AND THE DENTON INDEPENDENT SCHOOL DISTRICT AMENDING AN INTERLOCAL AGREEMENT DATED MAY 15, 2001; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. 29. NO. R2002-015 A RESOLUTION BY THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER TO SIGN AND St~-BMiT TO THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT A 2002 ACTION PLAN FOR HOUSING AND COMMUNITY DEFELOPMENT WITH APPROPRIATE CERTIFICATIONS, AS AUTHORIZED AND REQUIRED BY THE HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1974, AS AMENDED AND THE NATIONAL AFFORDABLE HOUSING ACT OF 1990, AS AMENDED; AND PROVIDING FOR AN EFFECTIVE DATE. 30. NO. R2002-016 A RESOLUTION OF THE CITY OF DENTON, TEXAS APPROVING THE ELIGIBILITY OF THE STRUCTURES LOCATED AT 535-A AND 535-B S. LOCUST, DENTON, TEXAS FOR TAX EXEMPTION FOR HISTORICALLY SIGNIFICANT SITES PURSUANT TO CHAPTER 10, ARTICLE VII CODE OF ORDINANCES OF THE CITY OF DENTON, TEXAS; AUTHORIZING CITY MANAGER TO EXECUTE A TAX EXEMPTION CERTIFICATE; AND DECLARING AN EFFECTIVE DATE. THE HISTORIC LANDMARK COMMiSSiON RECOMMENDS APPROVAL 6-0. 32. Confirmed the re-appointment by the City Manager of Dennis Stephens to the Civil Service Commission. City of Denton City Council Minutes May 14, 2002 Page 7 33. NO. R2002-017 A RESOLUTION NOMiNATiNG A MEMBER TO THE NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS 2002-03 EXECUTIVE BOARD; AND DECLARING AN EFFECTIVE DATE. 34. Approved tax refunds for the following property taxes: Tax Name Reason Year Amount ~ F~stS~ ~foN B. Wells Fargo for David & Laura Boring Duplicate Payment 2001 $ 916.73 C M~rk ~ ~re~ ~llac~ ~l~m P D. Washington Mutual Bank for Jerry & Overpaymem 2001 $1,155.93 Carol Knott F. Washington Mutual Bank Erroneous Payment 2001 $ 675.60 H. Marjofie Sue Keele Overpaymem 2001 $ 562.97 J. Danny L. Prins Duplicate Payment 2001 $ 780.65 L. HA Denton LLC Value Decrease per Demon 2001 $2,235.06 Central Appraisal District The Mayor left the meeting due to a conflict of interest. The Council considered Item #31. 31. NO. 2002-143 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO SIGN THE FIRST AMENDMENT TO THAT CERTAIN AGREEMENT FOR PROFESSIONAL LEGAL SERVICES WITH THE LAW OFFICES OF JIM BOYLE, P.L.L.C. FOR REPRESENTATION IN LITIGATION AND PROCEEDINGS BEFORE THE TEXAS RAILROAD COMMISSION REGARDING THE GAS RATE FOR THE SPENCER ELECTRIC GENERATING STATION; INCREASING THE AMOUNT OF THE PROFESSIONAL FEE; AUTHORIZING THE EXPENDITURE OF FUNDS; AND PROVIDING AN EFFECTIVE DATE. McNeill motioned, Montgomery seconded to adopt the ordinance. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", and Redmon "aye". Motion carried tmanimously. City of Denton City Council Minutes May 14, 2002 Page 8 Mayor Brock returned to the meeting. Item #26 was considered. Council Member Phillips stated that he was in favor of the recycling services but wanted f~xed income residems taken imo consideration when fees were charged. Council Member Fulton stated that she was in favor of the recycling services but had concerns on glass recycling and how the glass could be kept separated and unbroken. Council Member Redmon stated that he was in favor of the recycling services but had concerns about the mandatory fee that would be added to utility bills. He suggested that it be a voluntary use and that the City offer a discount for senior citizens or give them an exemption. Mayor Brock suggested a pay as you go service. Council Member Phillips asked how growth would be addressed. Vance Kemler stated that the bid was based on a monthly fee per residential account. As growth occurred, the total number of accounts would increase. Tom Sandlin, Trinity Waste Services, stated that education was a key factor. Kemler stated that the Solid Waste Departmem planned to propose a discount solid waste service fee in their budget package. The following individuals spoke on the item: Ed Soph, 1620 Victoria, Demon, 76209 - favor Jim Lattimore, 6100 Elliot Reeder Rd., Ft. Worth, 76117 - favor Tom Seller, 2322 Dundee Place, Carrollton, 76007 - favor The following comment cards were submitted: Jennifer Hurt-Randolph, 1027 Welch, Demon, 76201 - favor Carol Soph, 1620 Victoria, Demon, 76209 - favor Anita Brigman, 2232 Houston Place, Denton, 76201 - favor Julie Schamberg, 1517 E. Windsor, Demon, 76209 - favor Gene Hargrove, 2025 Houston Place, Denton, 76201 - favor Ken and Jan Dickson, 8065 Zachery Road, Aubrey, 76227 - favor Kathy Scott, 413 Lake Shore Drive, Shady Shore, 76208 - favor Jorge Urbina, 2224 Houston Place, Denton, 76201 - favor Patty Clifton, 2224 Houston Place, Demon, 76201 - favor Kevin Kennelly, 2105 Houston Place, Denton, 76201 - favor Dave Randolph, 1027 Welch, Demon, 76201 - favor Lynn Davenport, 705 W. Oak, Denton, 76201 - favor City of Denton City Council Minutes May 14, 2002 Page 9 The following ordinance was considered: NO. 2002-140 AN ORDINANCE OF THE CITY OF DENTON, TEXAS ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR THE PURCHASE OF RESIDENTIAL CURBSiDE RECYCLING AND PROCESSING SERVICES TO THOSE DENTON RESiDENTiAL SOLID WASTE CUSTOMERS AS DETERMINED BY THE CiTY COUNCIL; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTiVE DATE (REQUEST FOR BiDS NO. 2832 - RESIDENTIAL CURBSiDE RECYCLING AND PROCESSING SERVICES; AWARDED TO TRINITY WASTE SERVICES.) Fulton motioned, Burroughs seconded to adopt the ordinance. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carried unanimously. PUBLIC HEARING Item #43 was considered. 43. The Council held a public heating and considered adoption of an ordinance rezoning approximately 37 acres from a Neighborhood Residential 2 (NR-2) zoning district to a Neighborhood Residential Mixed Use (NRMU) zoning district. The property was generally located on the west side of Bonnie Brae north of Windsor and south of Riney Road. The Planning and Zoning Commission recommended approval of Neighborhood Residential Mixed Use 12 (NRMU-12) (4-2). (ZO2-OOOD [Property owner initiated rezoning, initially reviewed during the Development Code review process.] The public hearing was opened. The following individual spoke during the public heating: Jon Sellman, 2208 Lookout Lane, Denton, 76207 - opposition Burroughs motioned, McNeill seconded to continue the public heating to June 18, 2002. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carded unanimously. Item #44 was considered. 44. The Council held a public heating and considered adoption of an ordinance rezoning approximately 0.52 acres from a Downtown Residential 1 (DR-1) zoning district to a Downtown Residential 2 (DR-2) zoning district. The property was commonly known as 915 Avenue A, 917 Avenue A and 1124 Fannin and was located at the northeast comer of Fannin and Avenue A. An apartment complex was proposed. The Planning and Zoning Commission recommended approval (6-0). (Z02-0015) City of Denton City Council Minutes May 14, 2002 Page 10 The Mayor opened the public heating. The following individual spoke during the public heating: Karen Mitchell, representing the petitioner, asked the Council to continue the public heating until the May 21st Council meeting McNeill motion, Montgomery seconded to continue the public heating until May 21, 2002. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carded unanimously. Items #35 and #36 were considered together. 35. The Council held a public heating and considered adoption of an ordinance amending Ordinance 99-439, regarding a Comprehensive Plan Amendment, from Neighborhood Centers to Community Mixed Use Center and from Employment Centers to Neighborhood Centers. The area for amendment encompassed approximately 70 acres. The site was generally located south of the intersection of Loop 288 at Kings Row. A development containing a variety of single- family, multi-family, retail, office and commercial uses was proposed. The Planning and Zoning Commission recommended approval (6- 0). (CA Ol-O00O 36. The Council held a public heating and considered adoption of an ordinance rezoning approximately 180 acres from Neighborhood Residential 2 (NR-2), Neighborhood Residential 4 (NR-4), and Employment Center industrial (EC-i) zoning districts to Neighborhood Residential 3 (NR-3), Neighborhood Residential 4 (NR-4), Neighborhood Residential 6 (NR-6), Neighborhood Residential Mixed Use 12 (NRMU-12), and Community Mixed Use General (CM-G) zoning districts. The property was generally located on either side of Loop 288 north of Mingo Road, south of King's Row, east of Old North Road and west of Cooper Creek Road. A development containing a variety of single-family, multi-family, retail, office and commercial uses was proposed. The Planning and Zoning Commission recommended approval (5-1). (Z02- 0004) Doug Powell, Director of Planning and Development, stated that the public hearings for items #35 and #36 could be held together but they would have to be voted on separately. Consensus of the Council was to hold the public heatings together. The Mayor opened the public heating. The following individuals spoke during the public heating: Ed Wolski, 2301 Hollyhill, Denton, 76205 - favor JeffKrueger - favor Tim Somely - favor The Mayor closed the public heating City of Denton City Council Minutes May 14, 2002 Page 11 The following ordinance was considered: NO. 2002-144 AN ORDINANCE AMENDING THE DENTON PLAN 1999-2020 BY ADOPTING AN AMENDMENT TO THE LAND USE PLAN ON THE LAND ELEMENT OF THE DENTON PLAN FOR THE CITY OF DENTON, TEXAS; THE AREA FOR AMENDMENT ENCOMPASSING APPROXIMATELY 70 ACRES AND GENERALLY LOCATED SOUTH OF THE INTERSECTION OF LOOP 288 AT KINGS ROW; PROVIDING A SAVINGS AND REPEAL CLAUSE; AND PROVIDING AN EFFECTIVE DATE. (CA01-0001) Burroughs motioned, McNeill seconded to adopt the ordinance. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "nay", Phillips "aye", Redmon "aye", and Mayor Brock "nay". Motion carried with a 5-2 vote. The following ordinance was considered: NO. 2002-145 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FROM NEIGHBORHOOD RESIDENTIAL 2 (NR-2), NEIGHBORHOOD RESIDENTIAL 4 (RN-4) AND EMPLOYMENT CENTER INDUSTRIAL (EC-I) ZONING DISTRICT CLASSIFICATIONS AND LAND USE DESIGNATIONS TO NEIGHBORHOOD RESIDENTIAL 3 (NR-3), NEIGHBORHOOD RESIDENTIAL 4 (NR-4), NEIGHBORHOOD RESIDENTIAL 6 (NR-6), NEIGHBORHOOD RESIDENTIAL MIXED USE 12 (NRMU-12), AND COMMUNITY MIXED USE GENERAL (CM-G) ZONING DISTRICT CLASSIFICATIONS AND LAND USE DESIGNATIONS FOR APPROXIMATELY 180 ACRES GENERALLY LOCATED ON EITHER SIDE OF LOOP 288 NORTH OF MINGO ROAD, SOUTH OF KINGS ROW, EAST OF OLD NORTH ROAD AND WEST OF COOPER CREEK ROAD; PROVIDING FOR A PENALTY iN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z02-0004) Burroughs motioned, Montgomery seconded to adopt the ordinance. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "nay", Phillips "aye", Redmon "aye", and Mayor Brock "nay". Motion carried with a 5-2 vote. 37. The Council held a public heating and considered adoption of an ordinance rezoning approximately 0.8 acres, from a Multiple Family Dwelling District 1 (MF-1) zoning district to a Neighborhood Residential 3 (NR-3) zoning district. The property was commonly addressed as 1822, 1828 and 1902 West Oak Street and generally located on the north side of West Oak Street approximately 310 feet east of Bradley Street. The property was being rezoned to bring it in conformance with the Denton Development Code. The Planning and Zoning Commission recommended approval (4-2). (Z02-0016) [City initiated rezoning, initially reviewed during the Development Code review process.] City of Denton City Council Minutes May 14, 2002 Page 12 Doug Powell, Director of Planning and Development, stated that this property was part of the city initiated rezoning as a result of the Development Code process. The property owner had submitted a letter of protest that would require a supermajority vote by council. The Mayor opened the public heating. The following individuals spoke during the public heating: Ike Shupe, represeming the property owner - against the rezoning Dixie Stevenson, 1920 West Oak, Denton, 76201 - favor Sara Harvey, 312 Marietta, Denton, 76201 - favor Karen Devinney, 2205 West Oak, Denton, 76201 - favor Elise Ridenour, 2205 West Oak, Demon, 76201 - favor Steven Friedson, 2205 West Oak, Denton, 76201 - favor Stephen Plyler, 1919 Houston Place, Denton, 76201 - favor Wendell Withrow, attorney for West Oak Street Neighborhood Assoc. - favor David Bynum, 215 Marietta, Denton, 76201 - opposed Scott Short, 1907 West Oak, Denton, 76201 - favor The following comment cards were submitted in favor of the rezoning: Cecil Adkins, 2227 Houston Place, Denton, 76201 Fred Hamilton, 2021 W. Oak, Demon, 76201 Maggie Watt, 1004 West Oak, Demon, 76201 Julie Schamberg, 1517 E. Windsor, Demon, 76207 Edie Lenaburg, 308 Marietta, Demon, 76201 JoAnn Nunnelly, 2215 Houston Place, Demon, 76201 Jacqueline Gibbons, 2015 Houston Place, Demon, 76201 Margarete Neale, 1721 West Oak, Denton, 76201 Darlene Mullenweg, 711 West Oak, Denton, 76201 Helen Dewey Reikofski, 723 West Oak, Demon, 76201 Betty Mullenweg, 409 Bradley, Denton, 76201 Lynn Davenport, 705 West Oak, Denton, 76201 H. Ghadiri, 1910 West Oak, Demon, 76201 Darlene Stewart, 2003 West Oak, Denton, 76201 Bob and Ellen Ralph, 1717 West Oak, Demon, 76201 Anita Brigman, 2232 Houston Place, Denton, 76201 Margaret Wilson, 1914 West Oak, Denton, 76201 Joyce Palmer, 1905 West Oak, Denton, 76201 Caroline Polliard, 1800 West Oak, Demon, 76201 Eugene Hargrove, 2025 Houston Place, Denton, 76201 Marsha Stevenson, 1920 West Oak, Denton, 76201 Jennifer Collins, 312 Marietta, Denton, 76201 Patty Clifton, 224 Houston Place, Demon, 76201 Jorge Urbina, 2224 Houston Place, Denton, 76201 The Mayor closed the public heating. City of Denton City Council Minutes May 14, 2002 Page 13 Montgomery motioned, Brock seconded to approve the NR-3 zoning. On roll vote, Burroughs "aye", Fulton "my", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "nay", and Mayor Brock "aye". Motion failed with a 5-2 vote as a supermajority vote of the Council was needed. 38. The Council held a public hearing to consider adoption of an ordinance rezoning approximately 0.4 acres, from a Multiple Family Dwelling District 1 (MF-1) zoning district to a Neighborhood Residential 3 (NR-3) zoning district. The property was commonly addressed as 722 West Oak Street and generally located on the north side of West Oak Street between Mounts Avenue and Denton Street. The property was being rezoned to bring it in conformance with the Denton Development Code. The Planning and Zoning Commission recommended approval (5- 1). (Z02-0017) [City initiated rezoning, initially reviewed during the Development Code review process.] Doug Powell, Director of Planning and Developmem, reviewed the details of the rezoning. As the property owner was opposed the rezoning, a supermajority vote of the Council was required. The Mayor opened the public heating. The following individuals spoke during the public hearing. Peggy Capps, 915 West Oak, Denton, 76201 - favor Delores Vann, 811 West Oak, Denton, 76201 - favor Darlene Mullgenweg, 711 West Oak, Demon, 76201 - favor Jean Hanson, 818 West Oak, Denton, 76201 - favor Brian Morfison, 305 Mounts, Denton, 76201 - favor Catherine Lair, 716 West Oak, Denton, 76201 - favor Shirley Bliss, 904 West Oak, Demon, 76201 - favor Joe Lair, 716 West Oak, Denton, 76201 - favor Randall Boyd, 1023 West Oak, Demon, 76201 - favor Mike Cochran, 610 West Oak, Demon, 76201 - favor Helen Dewey Reikofski, 723 West Oak, Denton, 76201 - favor Tony Damico, 1801 Panhandle, Demon, 76201 - favor Lynn Davenport, 705 West Oak, Denton, 76201 - favor Dalton and Charlotte Allen, 111 Lexington Lane, Denton, 76205 - opposed The following comment cards were submitted in favor of the rezoning: Anita Brigman, 2232 Houston Place, Denton, 76201 Stephen Plyler, 1919 Houston Place, Denton, 76201 Elise Ridenour, 2205 West Oak, Demon, 76201 Dixie Stevernson, 1920 West Oak, Denton, 76201 Robert Moses, 115 W. Hickory, Denton, 76201 Eugene Hargrove, 2025 Houston Place, Denton, 76201 Caroline Polliard, 1800 West Oak, Demon, 76201 Joyce Palmer, 1905 West Oak, Denton, 76201 Steven Friedson, 2205 West Oak, Denton, 76201 Ellen Ralph, 1717 West Oak, Demon, 76201 J. D. Vann, 811 West Oak, Denton, 76201 City of Denton City Council Minutes May 14, 2002 Page 14 Jerry Adams, 311 Mounts, Denton, 76201 Kevin Kennelly, 2105 Houston Place, Denton, 76201 Marsha Stevenson, 1920 West Oak, Denton, 76201 Sara Harvey, 312 Marietta, Denton, 76201 Patty Clifton, 2224 Houston Place, Denton, 76201 Jorge Urbina, 2224 Houston Place, Denton, 76201 Jaqueline Gibbons, 2015 Houston Place, Denton, 76201 Edie Lenaburg, 308 Marietta, Denton, 76201 JoAnn Nunnelly, 2215 Houston Place, Denton, 76201 Julie Schamberg, 1517 E. Windsor, Denton, 76201 Fred Hamilton, 2021 West Oak, Denton, 76201 Cecil Adkins, 2227 Houston Place, Denton, 76201 Maggie Watt, 1004 West Oak, Denton, 76201 The Mayor closed the public heating. Burroughs motioned, Montgomery seconded to approve the rezoning to NR-3. On roll vote, Burroughs "aye", Fulton "nay", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "nay", and Mayor Brock "aye". Motion failed with a 5-2 vote as a supermajority vote of the Council was needed. 39. The Council held a public heating and considered adoption of an ordinance for a Specific Use Permit for approximately 0.7 acres, commonly known as 1911 Virginia Street. The subject property was zoned Employment Center Commercial (EC-C) and was generally located north of Virginia Street and south of Mingo Road. A 120' telecommunications tower was proposed. The Planning and Zoning Commission recommended approval (6-0). (Z02-O00O Doug Powell, Director of Planning and Development, reviewed the history of request. The Mayor opened the public heating. The following individual spoke during the public heating. Jim Walker, 1620 Handlee Drive, Denton, 76201 - favor The Mayor closed the public heating. The following ordinance was considered: No. 2002-146 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A SPECIFIC USE PERMIT FOR A TELECOMMUNICATIONS TOWER ON 0.7 ACRES OF LAND DESCRIBED AS LOT 3, BLOCK K OF THE EAST INDUSTRIAL PLAZA ADDITION AND COMMONLY KNOWN AS 1911 VIRGINIA STREET, WITHIN AN EMPLOYMENT CENTER-COMMERCiAL (EC-C) DISTRICT CLASSiFiCATiON AND USE DESIGNATION; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING FOR AN EFFECTIVE DATE. (Z02-0001) City of Denton City Council Minutes May 14, 2002 Page 15 Burroughs motioned, Redmon seconded to adopt the ordinance. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carried unanimously. 40. The Council held a public heating and considered adoption of an ordinance amending the Concept Plan for Planned Development 139 (PD-139). The approximately 400-acre site, commonly known as The Vintage, was located east of interstate 35W along both sides of Vintage Boulevard west of Bonnie Brae. An amendment allowing idling of the floodplain to develop additional single-family dwellings, gas well operations, and amenity centers was proposed. The Planning and Zoning Commission recommended denial for additional residential lots, and approval with conditions to allow gas well operation and amenity center land uses (6-0). (Z01-0048) (The Vintage, Amended Concept Plan) Doug Powell, Director of Planning and Development, reviewed the details of the proposal. The applicant had withdrawn his application to fill the floodplain. The only Council consideration would be the gas well operations and amenity center land use. The Mayor opened the public heating. The following individual spoke during the public heating: Charles Jowell, 1812 Woodridge Drive, Arlington, 76013 - favor The Mayor closed the public heating. NO. 2002-147 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING ORDINANCES 91-034 AND 99-317, TO CHANGE THE PERMITTED LAND USES FOR THE PLANNED DEVELOPMENT 139 (PD-139) ZONING DISTRICT AND LAND USE CLASSIFICATION TO ALLOW AMENITY CENTERS AND THE DRILLING, COMPLETING, OPERATING, REWORKING, RECOMPLETING AND PRODUCING OF NATURAL GAS; SAID PD139 CONTAINS APPROXIMATELY 401 ACRES AND IS COMMONLY KNOWN AS THE VINTAGE; PROVIDING FOR A SAVINGS CLAUSE; PROVIDING FOR A PENALTY iN THE MAXIMUM AMOUNT OF $2,00.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABiLiTY CLAUSE; AND AN EFFECTiVE DATE. (Z-01-0048) Redmon motioned, Burroughs seconded to adopt the ordinance with the conditions from the Planning and Zoning Commission. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carded unanimously. 41. The Council held a public heating and considered adoption of an ordinance rezoning approximately 5.0 acres from a Neighborhood Residential 4 (NR-4) zoning district to a Neighborhood Residential Mixed-Use 12 (NRMU-1) zoning district. The property was generally located along the east side of Highway 377, approximately 900 feet north of Chipping Campden Road. A retail development was proposed. The Planning and Zoning Commission City of Denton City Council Minutes May 14, 2002 Page 16 recommended approval (6-0). (Z02-0008) (deffi'ies Center) [Property owner initiated rezoning, initially reviewed during the Development Code review process.] Doug Powell, Director of Planning and Development, reviewed details of proposal. NRMU-12 zoning had been requested by the property owner. The Mayor opened the public heating. No one spoke during the public heating. The Mayor closed the public heating. The following ordinance was considered: NO. 2002-148 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FROM NEIGHBORHOOD RESIDENTIAL 4 (NR-4) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION TO NEIGHBORHOOD RESIDENTIAL MIXED USE 12 (NRMU-12) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR APPROXIMATELY 5.014 ACRES OF LAND GENERALLY LOCATED ALONG THE EAST SIDE OF HIGHWAY 377 APPROXIMATELY 900 FEET NORTH OF CHIPPING CAMPDEN ROAD LEGALLY DESCRIBED AS TRACT 3 OF ABSTRACT J. SEVERE SURVEY; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z002-0008) Burroughs motioned, McNeill seconded to adopt the ordinance. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carried unanimously. 42. The Council held a public heating and considered adoption of an ordinance rezoning approximately 3.1 acres from a Neighborhood Residential 3 (NR-3) zoning district to a Neighborhood Residential Mixed-Use (NRMU) zoning district. The property, commonly known as 711 East Sherman Drive, was generally located along the west side of Sherman Drive approximately 150 feet west of Linwood Drive and Sherman Drive intersection. No development was proposed. The Planning and Zoning Commission recommended approval (6- 0). (Z02-0020) [Property owner initiated rezoning, initially reviewed during the Development Code review process.] Doug Powell, Director of Planning and Development, reviewed the details of the proposal. The Mayor opened the public hearing. No one spoke during the public heating. The Mayor closed the public heating. City of Denton City Council Minutes May 14, 2002 Page 17 The following ordinance was considered: NO. 2002-149 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FROM NEIGHBORHOOD RESIDENTIAL 3 (NR-3) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION TO NEIGHBORHOOD RESIDENTIAL MIXED USE (NRMU) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR APPROXIMATELY 3.1 ACRES OF LAND, COMMONLY KNOWN AS 711 EAST SHERMAN DRIVE, AND GENERALLY LOCATED ALONG THE WEST SIDE OF SHERMAN DRIVE APPROXIMATELY 50 FEET WEST OF THE INTERSECTION OF LINWOOD DRIVE AND SHERMAN DRIVE AND LEGALLY DESCRIBED AS 3.1 ACRES OF TRACT 47 OF ABSTRACT J. CARTER SURVEY; PROVIDING FOR A PENALTY iN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z002-0020) Fulton motioned, Burroughs seconded to adopt the ordinance. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carried unanimously. 45. The Council held the first of two public heatings to consider the voluntary annexation and service plan for approximately 345.5 acres of land generally located north of Loop 288, east of Bonnie Brae and west of Locust, in the northern section of the City of Denton Extraterritorial Jurisdiction (ET J). (402-0000 Doug Powell, Director of Planning and Development, reviewed the details of the voluntary annexation. The Mayor opened the public heating. No one spoke during the public heating. The Mayor closed the public heating. 46. The Council held a public heating to consider adoption of an ordinance creating a Special Sign District on 7.52 acres of land in a Downtown Commercial General (DC-G) zoning district. The site was located on the north side of Interstate 35E, approximately 210 feet west of Centre Place and east of Meadow. The proposal was to create a Special Sign District for the entire tract that includes six lots. The Planning and Zoning Commission recommended approval (7-0). (SDO2-O001) Doug Powell, Director of Planning and Development, reviewed the details of the project. The amount of opposition was now reduced and was no longer at 20%. The Mayor opened the public heating. City of Denton City Council Minutes May 14, 2002 Page 18 The following individuals spoke during the public hearing: Representative to the petitioner - spoke in favor Glenn Gunterke- favor. The Mayor closed the public heating. The following ordinance was considered: NO. 2002-150 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, CREATING AN OVERLAY DISTRICT (SD-l) AND APPROVING A SPECIAL SiGN DISTRICT PLAN ON AN APPROXIMATE 7.52 ACRES OF LAND LOCATED ALONG THE NORTH RIGHT- OF-WAY LINE OF 1-35 BETWEEN TEASLEY AND MEADOW IN THE CITY OF DENTON, TEXAS; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING FOR AN EFFECTIVE DATE. Redmon motioned, Fulton seconded to adopt the ordinance with a 600 square foot sign. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "aye", and Mayor Brock "nay". Motion carded with a 6-1 vote. ITEMS FOR INDIVIDUAL CONSIDERATION Mayor Brock left the meeting with a conflict of interest. 47. The Council considered approval of a resolution of the City of Denton, Texas, authorizing intervention in Gas Utilities Docket 9292 at the Railroad Commission; authorizing participation in a Steering Committee with other cities served by TXU and requiring reimbursemem from TXU Lone Star Pipeline of Cities' reasonable rate case expenses; and providing an effective date. Herb Prouty, City Attorney, reviewed the details of the project. The following resolution was considered: NO. R2002-018 A RESOLUTION OF THE CITY OF DENTON, TEXAS, AUTHORIZING iNTERVENTiON IN GAS UTILITIES DOCKET 9292 AT THE RAILROAD COMMISSION; AUTHORIZING PARTICIPATION IN A STEERING COMMITTEE WITH OTHER CITIES SERVED BY TXU AND REQUIRING REIMBURSEMENT FROM TXU LONE STAR PiPELiNE OF CITIES' REASONABLE RATE CASE EXPENSES; AND PROVIDING AN EFFECTIVE DATE. City of Denton City Council Minutes May 14, 2002 Page 19 McNeill motioned, Phillips to approve the resolution with option one. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", and Redmon "aye". Motion carded unanimously. 48. New Business The following items of New Business was suggested by Council for future agendas: A. Council Member Redmon requested information on the hiring of a Director for the Denton Housing Authority. B. Council Member Redmon requested a progress report on the Mayhill Road Project. C. Council Member Redmon requested a work session regarding the employment issues raised by Carl Williams. D. Council Member Fulton requested information regarding the Mayhill Road improvements. E. Council Member Fulton requested a discussion on the Mingo Road situation. F. Council Member Fulton requested a staff report on Brush Creek Road and Highway 377. G. Council Member Phillips requested a discussion on alternative rates for recycling. 49. Items from the City Manager City Manager Conduff did not have any items for Council. 50. There was no continuation of Closed Meeting Texas Open Meetings Act. 51. There was no official action on Closed Meeting of the Texas Open Meetings Act. With no further business, the meeting was adjourn 11:40 p.m. under Sections 551.071-551.086 of the Item(s) under Sections 551.071-551.086 EULINE BROCK, MAYOR CITY OF DENTON, TEXS JENNIFER WALTERS CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES May 20, 2002 The City of Denton City Council convened in a luncheon reception for State Representative Myra Crownover on Monday, May 20, 2002 at 11:30 a.m. in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Fulton, McNeill, Montgomery, Phillips, and Redmon. ABSENT: None State Representative Crownover stated that one of the governor's priority issues was transportation. She stated that a parmership between the City, the School District, the County, and the State was very important. Crownover stated that the legislature handled three things-money, money, and money. All the rest was just poetry. She stated that the last legislative session was dominated by redistricting, and that Carole Keeton Rylander has suggested that in the upcoming session they would be looking at a $5 billion deficit. She said there was talk of going to a legislative session every year or having a budget session each year. Crownover stated that her interests for the upcoming legislative session were higher education and transportation. She stated that it was time for UNT to step up to the plate to become a Tier 1 college. NCTC was on track with uhat the legislature expected for higher education. She stated that TWU was struggling. Crownover stated that she was on a committee that instead of looking for additional funding sources was looking at what was being done that did not need to be done. City Manager Mike Conduff offered Representative Crownover the option of calling the City Manager's Office as a resource on any question she might have regarding issues affecting Denton, if she in turn would consult with the City of Denton on legislative issues prior to the legislative session. With no further business, the meeting was adjourned at 1:30 p.m. EULINE BROCK, MAYOR CITY OF DENTON, TEXAS JANE RICHARDSON ASSISTANT CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES May 21, 2002 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, May 21, 2002 at 4:30 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Fulton, McNeill, Montgomery, Phillips, and Redmon. ABSENT: None. 1. The Council received a report, held a discussion, and gave staff direction regarding the City of Denton Watershed Protection Program and Drainage Fee issues. Jim Coulter, Director of Water/Wastewater Utilities, stated that the Drainage Fee was collected to pay for costs associated with providing drainage services to the community. The fee would also provide funding to comply with the federally mandated Storm Water Phase II requirements. Kenny Banks, Watershed Protection Manager, stated that the Watershed Protection Program was established in January 2001. The program was part of a 5-year plan to improve water quality standards in the Pecan Creek, Cooper Creek, and Hickory Creek watersheds. He stated that Denton was located in the Trinity River Watershed. Kevin Thuesen, Water Resource Program Manager, reviewed the Storm Water Phase II requirements. He stated that the goals of the program were to establish baseline water quality conditions; determine areas of greatest concern from sub-basins to watershed scales; bring relevant information to the public via W/WW annual report, and outreach. He stated that Dursban residential sales ceased in December 2001. There were dramatic changes in Denton area watersheds from March 2001 -2002 and April 2001-2002. The following were the results of the 2001 program: continuous monitoring was used to establish baseline water quality conditions. Dry weather screening was used for pesticide monitoring, illicit discharge detection, construction related runoff. Storm water sampling was used to characterize storm water. Presentations were used to address public education and participation. Volunteer activities were used t) address public involvement. Reports for monthly monitoring results were used for public education. Thuesen stated that future efforts would continue monitoring baseline conditions, and identify and prioritize problem areas. He stated that many issues were non-point source in nature and required public participation/education to address the problems. Jim Coulter, Director of Water/Wastewater Utilities, discussed drainage issues. He stated that the drainage program had been operated from transfers from Water and Wastewater Funds. Funding levels since 1998 equaled $2.5 million per year. There were approximately 25 road closures during high water episodes. He stated that there were approximately 1000 homes or businesses located in the 100-yr. flood plain. Coulter stated that the rate structures for W/WW were not designed to support the Drainage Program. Rate revenues for W/WW were needed to fund infrastructure improvements due to aging water lines, wastewater lines and plants in need of repair and replacement, and state highway infrastructure relocations. City of Denton City Council Minutes May 21, 2002 Page 2 2. Requests for clarification of consent agenda items listed on the consent agenda for today's City Council regular meeting of May 21, 2002. Staff responded to Council's requests for clarification of consent agenda items. Following the completion of the Work Session, the Council convened in a Closed Meeting. 1. The following items were considered in Closed Meeting: A. Consultation with Attomey -- Under TEX. GOV'T. CODE Section 551.071 Discussed, deliberated and consulted with the City's attorneys the claim of R.N. Realty and potential litigation conceming alleged water infiltration and subsequent damage to the Bank Building at Locust and Hickory in Denton, Texas claimed to have been caused by the Downtown Improvement Project, where to discuss such issues and matters in a public meeting would conflict with the attorneys' duties and professional responsibilities to their client under the Texas Disciplinary Rules of Professional Conduct." (2) Received update and gave staff direction regarding litigation styled Binkert v. Phillips, et al., Cause No. 4:02cv131, currently pending in the U.S. District Court, Eastern District, Sherman Division. Regular Meeting of the City of Denton City Council on Tuesday, May 21, 2002 at 6:30 p.m. in the Council Chambers at City Hall. 1. Pledge of Allegiance The Council and members of the audience recited the Pledge of Allegiance to the U.S. and Texas flags. PROCLAMATIONS/PRESENTATIONS 2. May Yard-of-the-Month Awards Mayor Brock presented the May Yard-of-the-Month Awards to: Diana and David Johnson Denise Ray M.B. and Jimmie Holland John and Leslie Enlow Opal Dollarhide Jan and John Vann Joe and Betty Alford MayDay Manufacturing Company City of Denton City Council Minutes May 21, 2002 Page 3 3. Proclamations Mayor Brock presented the following proclamation: Alternative Transportation Day Katherine Barnett-Dixon, Special Projects Coordinator, Utility Administration, presented the following certificates of appreciation for sponsoring Altemative Transportation Day: Joe Mulroy, CBS Mechanical; University of North Texas; Denton Municipal Electric; Bike-O-Rama; LINK; and North Texas Clean Air Coalition. Amanda Oneacre with the Greater Dallas Chamber of Commerce presented the City a check for $5,000 from the North Texas Clean Air Coalition. 4. Recognition of staff accomplishments. City Manager Conduffpresented staff accomplishments to the Council. CITIZEN REPORTS 5. Dessie Goodson regarding deception. Ms. Goodson was not present. 6. Ross Melton regarding code enforcement, lawsuits, the budget, and a review of prior citizen reports. Ross Melton reviewed for the council some of his prior citizen reports. He stated that nothing good grew in the dark. He stated that it seemed like the Council was more concerned with aesthetics not health and safety. CONSENT AGENDA Burroughs motioned, Fulton seconded to approve the Consent Agenda and the accompanying ordinances and resolutions. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carried tmanimously. 7. NO. 2002-151 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING AN INTERLOCAL AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND THE UNIVERSITY OF NORTH TEXAS (UNT) FOR THE REPLACEMENT, INSTALLATION AND MAINTENANCE OF EMERGENCY WARNING SIRENS; AUTHORIZING THE EXPENDITURE OF FUNDS FOR LABOR AND AUTHORIZING THE CITY OF DENTON TO BE REIMBURSED BY UNT FOR MATERLALS PURCHASED; AND PROVIDING AN EFFECTIVE DATE. City of Denton City Council Minutes May 21, 2002 Page 4 8. NO. 2002-152 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF THE SPENCER/WOODROW 138 KV TRANSMISSION LINE UPGRADE; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE. (BID 2838 - SPENCER/WOODROW 138 KV LINE UPGRADE AWARDED TO ERNEST P. BREAUX ELECTRICAL, iNC. IN THE AMOUNT OF $475,648.20). 9. NO. 2002-153 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF MAYHiLL ROAD BOX CULVERT AND DRAINAGE IMPROVEMENTS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE. (BID 2843 - MAYHILL ROAD BOX CULVERT AND DRAINAGE IMPROVEMENTS AWARDED TO DBR CONSTRUCTION THE BASE BID AMOUNT OF $78,157.25 AND ALTERNATE 1 IN THE AMOUNT OF $38,766.50 FOR A TOTAL BiD AWARD OF $116,923.75). 10. NO. 2002-154 AN ORDINANCE ACCEPTING SEALED PROPOSALS AND AWARDING A CONTRACT FOR THE SERVICES OF AN INSURANCE CONSULTANT FOR THE CITY OF DENTON; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (RFSP 2829 - INSURANCE CONSULTANT SERVICES AWARDED TO MCGRIFF, SEiBELS & WILLIAMS OF TEXAS, INC. IN THE AMOUNT OF $145,000 OVER A THREE-YEAR PERIOD). 11. NO. 2002-155 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE PURCHASE OF UNDERGROUND SUPERVISOR ELECTRIC DISTRIBUTION SWITCHGEAR; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 2827 - ANNUAL PRICE AGREEMENT FOR UNDERGROUND SUPERVISOR ELECTRIC DISTRIBUTION SWITCHGEAR AWARDED TO PRIESTER SUPPLY CO., IN THE ESTIMATED AMOUNT OF $300,000). 12. NO. 2002-156 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING DEFERMENT OF RENTAL PAYMENTS FOR CERTAIN LEASES AT THE DENTON MUNICIPAL AIRPORT; AND PROVIDING AN EFFECTIVE DATE. 13. NO. R2002-019 A RESOLUTION GRANTING APPROVAL TO THE DENTON COUNTY HOUSING FINANCE CORPORATION FOR THE USE OF THE PROCEEDS OF ITS SERIES 2002 City of Denton City Council Minutes May 21, 2002 Page 5 SINGLE FAMILY MORTGAGE REVENUE BONDS TO FINANCE HOME MORTGAGES FOR SINGLE-FAMILY HOMES LOCATED WITHIN THE CITY AND PROVIDING AN EFFECTIVE DATE. 14. NO. 2002-157 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH KIMLEY- HORN & ASSOCIATES, INC. FOR PROFESSIONAL ENGINEERING SERVICES RELATED TO THE FINAL DESIGN OF THE SOUTHWEST BOOSTER PUMP STATION AND STORAGE FACILITIES; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. PUBLIC HEARING 15. The Council continued a public heating and considered adoption of an ordinance rezoning approximately 0.52 acres from a Downtown Residential 1 (DR-l) zoning district to a Downtown Residential 2 (DR-2) zoning district. The property was commonly known as 915 Avenue A, 917 Avenue A and 1124 Fannin and was located at the northeast comer of Fannin and Avenue A. An apartment complex was proposed. The Planning and Zoning Commission recommended approval (6-0). (Z02-0015) Larry Reichhart, Assistant Director of Planning and Development, stated that this property was located in the Downtown University Core District. The development of a multifamily complex was consistent with the Comprehensive Plan. The Mayor opened the public heating. Karen Mitchell, 7823 Nine Mile Ridge Road, Ft. Worth, spoke representing the applicant. The Mayor closed the public heating. The following ordinance was considered: NO. 2002-158 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FROM DOWNTOWN RESIDENTIAL 1 (DR- 1) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION TO DOWNTOWN RESIDENTIAL 2 (DR-2) ZONING DISTRICT CLASSIFICATION AND LAND USE DESIGNATION FOR APPROXIMATELY 0.52 ACRE OF LAND LOCATED AT THE NORTHEAST CORNER OF AVENUE A AND FANNiN; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z02-0015) McNeill motioned, Redmon seconded to adopt the ordinance. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carded unanimously. City of Denton City Council Minutes May 21, 2002 Page 6 16. The Council held the second of two public heatings to consider the voluntary annexation and service plan for approximately 345.5 acres of land generally located north of Loop 288, east of Bonnie Brae and west of Locust, in the northern section of the City of Denton Extraterritorial Jurisdiction (ETJ). (A02-0001) Larry Reichhart, Assistant Director of Planning and Development, stated that the property was located in the extra territorial jurisdiction and was not zoned at this time. He stated that the applicant was proposing to develop residential and commercial uses, including a park and a high school. The Mayor opened the public heating. No one spoke during the public heating. The Mayor closed the public heating. No action was required on this item. 17. The Council held a public heating and considered adoption of an ordinance rezoning approximately 46 acres from an Agriculture (A) zoning district to a Neighborhood Residential 6 (NR-6) zoning district. The site was generally located on the south side of Blagg Road, approximately 1000' west of Lakeview Boulevard. The rezoning was required to bring property into compliance with the Development Code zoning classifications. The Planning and Zoning Commission recommended approval of Neighborhood Residential 1 (NR-1) (7-0). (Z02-0010) Larry Reichhart, Assistant Director of Planning and Development, stated that the original property owner had requested NR-6. Staff had recommended NR-3 and the Planning and Zoning Commission recommended NR-1. He stated that the new property owner, who purchased the property after the Planning and Zoning Commission public heating, was opposed to NR-1. Any zoning recommendation tonight would require a super majority vote. Mayor Brock asked if staff was recommending NR-3. Reichhart stated staff felt NR-3 was appropriate for this property. The Mayor opened the public heating. Eric Janssen, 413 Fox Creek Court, stated that he protested the NR-1 zoning and equested the Council's consideration of rezoning the property to NR-4. Council Member Burroughs asked Janssen when he purchased the property. Janssen stated that he purchased it on the Monday following the Planning and Zoning Commission public heating, April 29, 2002. The Mayor closed the public heating. City of Denton City Council Minutes May 21, 2002 Page 7 Burroughs motioned, Redmon seconded to adopt the ordinance rezoning the tract from Agriculture to NR-3. City Attorney, Herb Prouty, advised the Council that the applicant had stated in materials handed out to the Council tonight that if they were not ready to rezone it, he was agreeable to sending it back to the Planning and Zoning Commission for reconsideration. On roll vote, Burroughs "aye", Fulton "nay", McNeill "aye", Montgomery "aye", Phillips "nay", Redmon "nay", and Mayor Brock "aye". Motion failed 4-3. Brock motioned, Redmon seconded to return the case back to the Planning and Zoning Commission for further study and consideration. Redmon withdrew his second. Burroughs seconded the motion. On roll vote, Burroughs "aye", Fulton "nay", McNeill "aye", Montgomery "aye", Phillips "nay", Redmon "aye", and Mayor Brock "aye". Motion passed 5-2. 18. The Council held a public heating and considered adoption of an ordinance rezoning approximately 2.67 acres from a Commercial (C) zoning district to a Neighborhood Residential Mixed Use (NRMU) zoning district. The site was generally located north of Crawford Road, east of Interstate Highway 35W and west of John Paine Road. The rezoning was required to bring property into compliance with the Development Code zoning classifications. The Planning and Zoning Commission recommended approval (7-0). (Z02-0012) Larry Reichhart, Assistant Director of Planning and Development, stated that the proposed NRMU zoning designation was consistent with The Denton Plan. The Mayor opened the public heating. No one spoke during the public heating. The Mayor closed the public heating. The following ordinance was considered: NO. 2002-159 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, ZONING A TRACT OF LAND, COMPRISING APPROXIMATELY 2.67 ACRES IN THE CITY OF DENTON FROM COMMERCIAL (C) ZONING DISTRICT CLASSiFiCATiON TO NEIGHBORHOOD RESIDENTIAL MIXED USE (NRMU); THE TRACT BE1NG GENERALLY LOCATED NORTH OF CRAWFORD ROAD, EAST OF iNTERSTATE HIGHWAY 35W AND WEST OF JOHN PAINE ROAD, WITHIN THE E. PiZANO SURVEY, ABSTRACT NO. 994, IN THE CITY OF DENTON; PROViDiNG A PENALTY CLAUSE AND AN EFFECTIVE DATE. (Z02-0012) City of Denton City Council Minutes May 21, 2002 Page 8 Burroughs motioned, Fulton seconded to adopt the ordinance. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carded unanimously. 19. The Council held a public heating and considered adoption of an ordinance rezoning approximately 300 acres from an Agriculture (A) zoning district to a Rural Residential 5 (RD-5) zoning district. The site was generally located north of Lively Road, south of FM 2449 and west of C. Wolfe. The rezoning was required to bring property into compliance with the new Development Code zoning classifications. The Planning and Zoning Commissions recommended approval (7-0). (Z02-0013) Larry Reichhart, Assistant Director of Planning and Development, stated that the proposed RD-5 zoning designation was consistent with The Denton Plan. The Mayor opened the public heating. No one spoke during the public heating. The Mayor closed the public heating. The following ordinance was considered: NO. 2002-160 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, ZONNG A TRACT OF LAND, COMPRISING APPROXIMATELY 300 ACRES IN THE CITY OF DENTON FROM AGRICULTURE (A) ZONING DISTRICT CLASSIFICATION TO RURAL RESIDENTIAL 5 (RD-5); THE TRACT BEING GENERALLY LOCATED NORTH OF H. LIVELY ROAD, SOUTH OF FM 2449 AND WEST OF H. LIVELY ROAD, WITHIN THE C. MANCHACA SURVEY, ABSTRACT NO. 789 IN THE CITY OF DENTON, TEXAS; PROVIDING A PENALTY CLAUSE; AND AN EFFECTIVE DATE. (Z02-0013). Fulton motioned, Rurroughs seconded to adopt the ordinance. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carded unanimously. 20. The Council held a public heating and considered adoption of an ordinance rezoning approximately 67.7 acres from an Agriculture (A) zoning district to an Industrial Center Employment (IC-E) zoning district. The site was generally located north of Jim Christal Road, south of University and west of Masch Branch Road. The rezoning was required to bring property into compliance with the new Development Code zoning classifications. The Planning and Zoning Commission recommended approval (7-0). (Z02-0014) Larry Reichhart, Assistant Director of Planning and Development, stated that the proposed IC-E zoning designation was consistent with The Denton Plan. The Mayor opened the public heating. City of Denton City Council Minutes May 21, 2002 Page 9 No one spoke during the public heating. The Mayor closed the public heating. The following ordinance was considered: NO. 2002-161 AN ORDINANCE OF THE CITY OF DENTON, TEXAS ZONING A TRACT OF LAND, COMPRISING APPROXIMATELY 67.66 ACRES IN THE CITY OF DENTON FROM AGRICULTURE (A) ZONING DISTRICT CLASSIFICATION TO AN INDUSTRIAL CENTER EMPLOYMENT (lC-E); THE TRACT BEING GENERALLY LOCATED NORTH OF JIM CHRISTAL ROAD, SOUTH OF UNIVERSITY AND WEST OF MASCH BRANCH ROAD IN THE MYERS BRUMMET JOHNSON SURVEY, ABSTRACT NO. 1699; PROVIDING A PENALTY CLAUSE AND AN EFFECTIVE DATE. (Z02-0014) Burroughs motioned, McNeill seconded to adopt the ordinance. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carded unanimously. ITEMS FOR INDIVIDUAL CONSIDERATION 21. The Council considered approval of a resolution establishing maximum permitted rates that Charter Communications may charge its Denton cable television subscribers for basic cable service, associated equipment, changing tiers, and the hourly service charge; providing a severability clause; and providing an effective date. John Cabrales, Public Information Officer, stated that staff recommended approving the rates recommended by C2 Consulting. The consultant recommended a rate of $9.80/month for Basic Service instead of Charter's proposed rate of $10.19/month. Cabrales stated that Charter had announced they would postpone implementing he new rate until July 1, 2002. The following resolution was considered: NO. R2002-020 A RESOLUTION ESTABLISHING MAXIMUM RATES THAT CHARTER COMMUNICATIONS MAY CHARGE ITS DENTON CABLE TELEVISION SUBSCRIBERS FOR THE BASIC SERVICE TIER, CHANGING TIERS, AND ASSOCIATED EQUIPMENT; ESTABLISHING A MAXIMUM HOURLY SERVICE CHARGE; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. Burroughs motioned, McNeill seconded to adopt the ordinance. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carded unanimously. City of Denton City Council Minutes May 21, 2002 Page 10 22. The Council considered adoption of an ordinance authorizing the City Manager or his designee to execute a Quit Claim Deed to abandon an all purpose utility easement consisting of a 0.427 acre tract of land being a part of Shadow Brook Place, an addition to the City of Demon, as recorded in Cabinet T, Page 171 of the plat records of Denton County, Texas; and providing an effective date. Beverly Stephens, represeming Shadow Brook Place, spoke in support. The following ordinance was considered: NO. 2002-162 AN ORDINANCE AUTHORiZiNG THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A QUIT CLAIM DEED TO ABANDON AN ALL PURPOSE UTILITY EASEMENT CONSISTING OF A 0.427 ACRE TRACT OF LAND BEING A PART OF SHADOW BROOK PLACE, AN ADDITION TO THE CITY OF DENTON, AS RECORDED IN CABINET T, PAGE 171 OF THE PLAT RECORDS OF DENTON COUNTY, TEXAS; AND PROVIDING AN EFFECTIVE DATE. Burroughs motioned, Montgomery seconded to adopt the ordinance. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carded unanimously. 23. The Council considered adoption of an ordinance authorizing the City Manager or his designee to execute a Quit Claim Deed to abandon a sanitary sewer easemem consisting of a 0.293 acre tract of land being a part of Shadow Brook Place, an addition to the City of Demon, as recorded in Cabinet T, Page 171 of the plat records of Demon County, Texas; and providing an effective date. The following ordinance was considered: NO. 2002-163 AN ORDINANCE AUTHORiZiNG THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A QUIT CLAIM DEED TO ABANDON A SANITARY SEWER EASEMENT CONSISTING OF A 0.293 ACRE TRACT OF LAND BEING A PART OF SHADOW BROOK PLACE, AN ADDITION TO THE CITY OF DENTON, AS RECORDED IN CABINET T, PAGE 171 OF THE PLAT RECORDS OF DENTON COUNTY, TEXAS; AND PROVIDING AN EFFECTIVE DATE. McNeill motioned, Fulton seconded to adopt the ordinance. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carded unanimously. 24. New Business The following items of New Business were suggested by Council for future agendas: City of Denton City Council Minutes May 21, 2002 Page 11 A. Council Member Redmon requested clarification on vested rights for property owners in zoning cases. B. Council Member Fulton asked about discussing the possibility of resurfacing and repaving Mayhill after the new culverts were in. C. Council Member Fulton requested staff look into the possibility of realigning the railroad crossing at 377 and Bonnie Brae and installing a crossing gate. D. Council Member Redmon requested detailed remarks of a previous zoning case. 25. Items from the City Manager City Manager Conduff did not have any items for Council. 26. There was no continuation of the Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. 27. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. Burroughs motioned, Montgomery seconded to give the authority to the City Attorney to take action as discussed and recommended by the City Attorney in Closed Session on Cause No. 4:02cvl 31. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carded unanimously. With no further business, the meeting was adjourned at 8:05 p.m. EULINE BROCK, MAYOR CITY OF DENTON, TEXAS JANE RICHARDSON ASSISTANT CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES May 28, 2002 After determining that a quorum was present, the City Council convened in a Planning Session on Tuesday, May 28, 2002 at 4:30 p.m. in the City Council Work Session Room at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem Montgomery, Phillips, and Redmon. ABSENT: None Burroughs; Council Members Fulton, McNeill, 1. The Council received a report, held a discussion, and gave staff direction regarding the Denton Airport. Mark Nelson, Director of Airport and Transportation, presented background details about the Municipal Airport. The Airport was classified as a super reliever airport. Current projects included airport master plan, control tower, land acquisition and terminal building. Future projects included a parallel taxiway, a runway extension, terminal apron expansion and west side development. The following individuals spoke on the issue: Don Smith, Airport Advisory Board Damon Ward, Business Air Center Mike Nebrig, Nebrig & Associates Chuck Carpenter, Denton Chamber of Commerce Mike Dmyterko, Coffrnan and Associates Council discussed the following topics regarding the Airport and listed suggestions: Outcomes for the Airport · How to parmer with business to assist with the funding of the Airport · Become self-sufficient with operation and maintenance costs · Communications- education of direct benefits of the Airport · Take action by Council earlier for long range needs for the Airport · Community support · Infrastructure access to the Airport Become a 1st class aviation center · Home for large corporate aircraft · Economic development tool · Aviation school Things to avoid · Residential development around the Airport · Significant general fund subsidies · Incompatibility with general aviation operators With no further business, the meeting was adjourned at 7:00 p.m. JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS EULINE BROCK MAYOR CITY OF DENTON, TEXAS Agenda 02-021 06/18/02 #12 AGENDA INFORMATION SHEET AGENDA DATE: June 18, 2002 DEPARTMENT: Utility Administration ACM: Howard Martin, 349-8232 SUBJECT An Ordinance of the City of Denton, Texas authorizing the City Manager to execute a Professional Services Agreement with James Duncan & Associates, inc. for Professional Engineering and Consulting Services pertaining to the preparation of an updated Impact Fee Study for the Water and Wastewater Utilities; authorizing the expenditure of funds therefor; and providing an effective date. BACKGROUND In Texas, impact fees are governed by Chapter 395 of the Local Government Code (the impact Fee Act). Under this statute impact fees are regulated for the water and wastewater utilities. Impact fees provide the means for collecting the cost of adding capacity to the water/wastewater system to provide service to any entity that creates a new demand/impact on the water system, in September 1998, the City of Denton through Ordinance No. 98-301 (see Exhibit ii), adopted impact fees for the water and wastewater utilities complying with the requirements of the state statute. These impact fees were calculated for adding 6 million gallons per day capacity at the Pecan Creek Water Reclamation Plant for the wastewater system, and for the water system the costs included the construction of the Lake Ray Roberts Water Treatment Plant, high service pump station, transmission line and the 1 million gallon Northwest Elevated Storage Tank. Impact fees are applicable within the water and wastewater Certificate of Convenience and Necessity Area (CCN) of the City of Denton (see Map Exhibit i). In September 1998 when the impact fees were adopted, the Impact Fee Act required that the impact fees be updated every three years. However, in the year 2001 the state legislature through Senate Bill 243, allowed the regulated entities up to five years to update the impact fee ordinance (see Exhibit iii-Summary of Changes to impact Fee Legislation). Staff made a presentation to the PUB on September 17, 2001 regarding the impact of changes in the impact Fee Act (see Exhibit iV). To comply with the 5 year window for the impact fee update requirements of the state law, staff has been monitoring and assessing the current city impact fee ordinance. As discussed above the current ordinance collects costs essentially only for the water and wastewater treatment capacity impact. The impact of adding capacity in the water distribution system and the wastewater collection system is not addressed in the current ordinance. The growth in the city population since the adoption of the ordinance and the projected growth through the year 2020 require addition of substantial capacity in the distribution and collection systems. The master plans for the distribution and collection systems developed for the 1998 impact fee study provide the sizes of the major water transmission lines and interceptor sewers that are needed to provide capacity for the projected Year 2020 population. Several of these major lines are included in the current 5-year Capital improvements Plan. To address the Phase ii of the impact fee ordinance and to comply with the state reporting requirement, staff requested a proposal from the impact fee consulting finn of Duncan Associates. Duncan Associates had done the Phase i- impact Fee Study which was adopted by the city in 1998. They have submitted a scope of work and cost proposal to update the impact fee ordinance (see Exhibit V). The highlights of the scope of work are as follows: · Update the impact fee ordinance to reflect the current costs of treatment plants capacity expansion. · Include the major water transmission and wastewater interceptor sewer costs in the impact fee calculation. · Evaluate the impact of the Senate Bill 243 to determine the optimum method to allocate system capacity expansion costs. · Present the methodology and impact fee calculations to the PUB, Capital improvements Advisory Committee and the City Council. Attend up to three public heatings. The consultant's cost to provide the services included in the Scope of Services is not to exceed $39,560 ESTIMATED SCHEDULE OF PROJECT Upon notice to proceed the project is expected to be complete within five months. PRIOR ACTION/REVIEW (Council, Boards, Commissions) · PUB recommended for approval the professional services agreement with Duncan Associates for update of the impact Fee Study on May 20, 2002. · The Phase-i Impact Fees were adopted by the City Council through Ordinance No. 98-301 on September 15, 1998. FISCAL INFORMATION There is $50,000 each in the Water and Wastewater Administration FY2002 budget for the impact fee study (see Exhibit VI). EXHIBITS Exhibit I: Map - Water/Wastewater CCN Areas Exhibit II: Ordinance No. 98-301 Exhibit III: Senate Bill 243 - Summary of Changes Exhibit IV: PUB Agenda Item September 17, 2001 Exhibit V: Duncan Associates Proposal Exhibit VI: FY2002 Budget Detail Sheet Exhibit VII: Ordinance Exhibit VIII: Professional Services Agreement Exhibit IX: PUB Meeting Minutes Respectfully submitted: Jim Coulter Director Water Utilities Prepared by: P. S. Arora, P.E. Assistant Director Wastewater City of Denton CCN Map LEGEND: ~ City Limits CCN Boundry: sewer only ~ water & sewer Exhibit I EXHIBIT II ~le~er ,:L,, 2(1 2001 Impact Fee Legislation Senate Bill 243 Summary of Changes ii. iii. iV. Water and Sewer Line Exemption - The definition of an impact fee now excludes "other pro rata fees for reimbursement of water or sewer mains or lines extended by a political subdivision". Cities can now implement pro rata fees to recoup most line costs without going through impact fee procedures. Service Units - The definition of an impact fee now includes the requirement that service units must be "based on historical data and trends applicable to the political subdivision in which the individual unit of development is located during the previous 10 years". Overall Limitation on the Amount of Fees - The law now states that the CiP for impact fees must now include a schedule that discounts from the maximum fee calculation as a "credit" the amount of utility service revenues or ad valorem taxes that are allocated to capital improvements included in the CiP. The law makes it clear that the credit is to be subtracted from the maximum impact fee calculated from the CiP. Cities may calculate a credit amount or simply set the fee at 50% of the maximum fee calculated. Annual Reporting Requirement - A new provision requires that an annual written certification be submitted by the "presiding officer of the governing body" to the state Attorney General verifying compliance with law. This certification must be submitted not later than the last day of the fiscal year (September goth for Denton). Time of Collection of Impact Fee - SB 243 limits collection of impact fees to the time of building permit. Denton is in compliance with this provision. Denton has always colleted the impact fee at the time of building permit. Longer Update Period - SB 243 extends the mandatory update period for adopted impact fees from 3 to 5 years. Denton will be required to update the impact fee study by 2003, 5 years from the date the impact fee related CiP was adopted. EXHIBIT III PUB AGENDA ITEM #10 PUBLIC UTILITIES BOARD AGENDA INFORMATION SHEET AGENDA DATE: September 17, 2001 DEPARTMENT: ACM: Utilities Administration Howard Martin ~ SUBJECT Receive a report and hold a discussion on amendments to impact fee state law as contained in Senate Bill 243. BACKGROUND The 2001 Texas State Legislature amended the state's impact fee law with an effective date of September 1, 2001. Exhibit I provides a summary of the impact fee law changes contained in Senate Bill 243, which amended Chapter 395 of the Texas Local Government Code. The provision that has the greatest potential financial impact on the City is the provision that states that a "credit" must be applied to the maximum impact fee calculation. The credit applies to the amount of utility service revenues or ad valorem taxes that are allocated to capital improvements that are included in the CIP. Ad valorem taxes are not at issue since taxes are not used to support any impact fee related capital projects. The legislation states that this credit percentage may be calculated by the City, or as an alternative, the impact fee may simply be set at 50% of the maximum rate. The new legislation also requires that the Mayor submit a letter to state Attorney General certifying that the city is in compliance with the state law governing impact fees. This certification letter must be submitted annually not later than the last day of the fiscal year. Denton must submit its fa'st certification by September 30, 2001. Because somewhat similar impact fee legislation was considered during the previous state legislative session, Staff estimated that a 25% credit would need to be applied to future forecasts of inpact fee revenues. The current approved Water and Wastewater FY 2002 budgets and the proforma financial projections from FY 2003 through FY 2006 have included this 25% reduction to expected impact fee revenues. Denton's current impact fees are based on a study conducted by Duncan Associates in 1998. That study recommended that the water impact fee be set at $2,044 and the wastewater impact fee be set at $483. The City adopted these recommended impact fee amounts and has been 1 EXHIBIT IV collecting impact fees from new service connections at the time of building permit since the fall of 1999. Staff generally considered these impact fee amounts to be at the maximum level since they were adopted at 100% of the Duncan study recommendations. Staff also assumed that any credit required by new legislation would apply to the impact fee being charged. SUMMARY The intent of the legislation is to avoid charging a new customer twice for impact fee related capital projects - first through the up-front impact fee and second through the monthly water and wastewater rates paid over the 10 year impact fee period. Therefore, the credit calculation is based on a determination of what portion of the monthly water and wastewater bill is used to pay for impact fee related projects. The legislation does not provide an exact methodology for determining the credit. Staff has used an example provided by Terry Morgan from Morgan & McCool, who provided an analysis of the impact fee legislation at a meeting held in August at NTCOG. Staff calculated the water and wastewater impact fee credit amounts using a conservative methodology in determining the credit. When the analysis was completed, it became apparent that Denton's current impact fees are not set at the maximum levels as defined in the new legislation. The impact fees are only set at the maximum recommended levels. The new legislation states that the credit is to be subtracted from the maximum impact fee calculated from the CIP study. The analysis further showed that the Duncan Associates study provided a credit that complies with the new impact fee legislation. The Duncan Associates study fa'st calculated water and wastewater impact fees based on the estimated CIP costs and projected customer growth, measured in single family equivalents (SFEs). Based on these estimates, the Duncan study calculated a maximum water impact fee of $3,547 and a maximum wastewater impact fee of $899. The Duncan study then calculated a "debt service credit" to avoid requiring new customers to pay twice for the impact fee related capital facilities. The Duncan Associates study applied a 42% credit to the water impact fee, reducing the recommended fee from $3,547 to $2,044. The wastewater impact fee was reduced by a 46% credit, from $899 to $483. When the impact fee credits are calculated on the basis of the new legislation (see attached Exhibit I), an estimated 21% credit must be applied to the water CIP study impact fee, resulting in a maximum allowable water impact fee of $2,811. The new legislation requires that an estimated 5% credit be applied to the wastewater impact fee, resulting in a maximum wastewater impact fee of $644. Below is a summary of the impact fee credit calculations: œke"R½oTo%oõ¥1 ãÞ¥¨PqWÅZ$å5iZ5T <q`k*,ûE<feå´¶#<uH q~a$¾dá¡8§k aR,-: ¼efÆdâ5@N <%âÊòiSƒ‚‡U-åf1Opæte6NŒ K.QyQH^á èQh÷u~Ñc…±»@Sð$†~퀌+¦a»(.¤@0 ‚c¨¨\ã0¢a@¤,"£0¦ä vT|È¢a¨Hèð@084q:11151#=õ JNIžœ¦°±±¨¨¨¨‚äd´0ßÙ²ßßßÝKõ›tcíW{Ú‰ÒAh§Qsy:ߢë@h?, jž×˜ Xa50×H;j%¦F id%G{Lziô©çéæ쨙‘òa1§}D ‚º%r™Ýçñ{J5ª!·?˜Ê«KH«âGÃö¢õ#5Ü%Â*hñaq+rà%Æùðû(mk}ä!5¬ÖdãE”@d A,wkëî1y4w;4)|–¨èìây¡†u ä²Êéùå¼7¼0«" nt+vpvšûgS7×…t‰jxS¢°l»ZÏÑA' ú½¤÷^üØ/ $C:b|ž[œ —ŠhØÙ@Þ±²®ö6˜1L™(÷‹—‹‹ŸŸÍÉ8;#°‡wáÌ Ý™ŽÞÞƒˆÎš‰&Ä wçÁd;Ñ©Û”Òõ0 ®XÚ.í{\é.ÏœsŒ{è‘g9C¤i1v@Có çÇçè° ˆe1]RO›<€-Ö¼fV3 [î édQR'® V¡æê9ñ.@g òV&_1zÁ=grÉ“wçV©´Zƒ‹R@x†Ô%ÁwN±ácýZWmÇÕHqFr‰ ÍgƒB8g£‡qŸò)ª%‚œãÝI-üè5 5» ç‹W¡8whëUñ~Å* æ"˜+×ÒTïmp0cLxÕ Yf¾&Rni5 wÖùv[jä{dè/ }\»ne$^›.¢,…*RSdMCzeØ^V«xb»8ÐÅ%‚EQiö鎑÷'œÆPjw_*! f¡i¢ó¦ã¦Ø¶8EJ+Õ¬ \}sgýè{Â,ÜAui-&Ó`¤6X)âùÈÌçåwøye|hgz¥ó$Å2dm>o7+@[X…:~L™Ÿ«ÜZ?;Lâì?ËÎéô×A»î City/~s usda nS i~s ~oatf,r B~'('. v~-astewB~er' i'npact fees he upd~,Le would include Th, e pr'opcss.~,i censisis~***' i/.'xMbit '*., Scope of Servic:es, /:x' :.i i~': Project S;c:hed a,. and Exhi~3i~ '*'C;': CO~*' >)posl We ave not includ,:cd ou q aai ficalt on,.s as you h,Bv,:~ t~:,een I ~err The scope of ~ie'v ceos cou!d be co::~pleted< in app.~oximat:et¥ sx r-'enI, i~s~, 8cr'a fca~al cost: of S3%560. The scope arid budBet includes up !o 5 nx:~elinBs v.,, l:.k' Lhe Capital mprOver'r'ents S ncerei?, OUNCAN ASSOC~A' ES v Senior Assoc a~:~ EXHIBIT V ?l"ie pu,¢p©se of :hs pr'o.!ec~ s to assist [:hr ;;?i!;y ~:f Der'item i:n updaL ¢;g its; existing wat:t,r wsstewst:e' impact:: fi/:~s fy' b"ea(:r'~qe'~i ¢,:~:'. ~k::s a'~d expa ndh% ~:ese fee~; i:o co,,er dis( to Chaq}t~:~¢ 395¢ of "edtlch'~g thc fi?es by he;f in I~c:u of co cu!ab,'-g rswenue cr:~cti(s;, di~:t.'ibL t on s'/sle~?, a:"~d t~e w;:t¢;I;ewa~er co~hi, ct~or~ sysem based c3xta ned r~ '1;~' ~~ ;",2cantiy-completed cc. mprehenr:, ye pi8;*, WRn cus~ome s c,n a dwe *"6 uni~ bssis raU'~e' ~}an meh;',r 5ze, The sudy w!i a~5o explore ',,apr ng a~?a foe Ehe ~'~e compo;" er',t of (~"e 'fees 'The.~ C k:¥ :~;~ ou id; os d e 'l ": r, Or ~ ~ it :Jrt t¢ ,,4it',,:o ~Jl: C¢'~ a r~j e, co p c: s o f d i r:d e,~,8 rt pian s,, stud ~:o: '~saps of '.::;e'vice area bou3ear es (~'ette~ size) arx:: eli rev{aw tl~e draft C¢~"¢ reso!k¢,ion es~:abii;.h n? a pubc h,:~,aring date aad dr's~( pubc b~seci; o-: caJacib,' u(iiiz:ed w~l .*, ~ 'x:~'¢d(:td. Ar:cipat~-d 'st~rest ccrs;t's f'c-, do.,tm¥~e'~'~ a!! dare s,ource8 and as~i, umpliors, and !r cb.a!(;' ~ ~eu sc x,'dU!e that r',?pFost:/rltS fees that coud ,:}e charged. At ieast one full s~,,orkicg dab s~{ be celivered to C~t¥ stall for rcviev, and cgm?en~ i)~!m"' to da iv'cry' of the draf~ Ddive'abie~: Working ©rat for56talff Revery to mp'~e~naent tee updated ~a, ater a,~d wastew~te~' treatment i'~l:,act fees and ne,..~, ~,.. t~.. at..~r I~ z mpact fee~s. The a~cnd~, 't~ ~,~'U a'SO nddreg8 r)~her ig~uc~:~ - ~ ~n the greups Thc r':/¢e of the ?~dvisor? Comr~ t~ee ,,viii ~e b:~ rcv::w the met~od;oiogy and c~edits shouk~ 'c,e p=ovided for rE, q aired, deveoper contribut oas., public meet ngs may !:~' prov tied on a Cme pibs excense Basis, Delive~"ables: '¢~o (Z) Per'~o'- F'q:'.,s F<>i o,,~.hxj :evlev~~ ard ¢onment os t.qe al'aft captal improvements p~8-'~ and mpac~ a;:q)rOF;riatc q?ViSiOnS ~,r~d p'-ovide final drafts of bod-~ Finai impac~ Fee Ore nac~ce 1"he Cra'x; .ill:ar : ~',~i!t .::~ter~d Ul~ I:o tl]m'e pubiic hearirgs to preseqt: i'he Capil'a! imprgvements participa[ on ;n adopdor meetings n"ab be fsrovided on a ti,~-te-pkls=expieqs,~2 basis. iA =5 ]; ?ro?,c:t Organiz~ :ion { 1 trip} 2: Lend Use 3; D~aft Capi~:a fl; D;"a[:L O¢"d na ~ce 62 Final S'I::.~:?~ 'Q~d '~i~x 7: Adol:;b;on Hnairg~;; 3 sum budge~ h"~ckde9 aH d z'('-d: a;qd ~nd re'ct expenses incuned >? he consd~e:: ~ear: h: T a ~ k !~3 46G $ S, $4,400 Add:dorsal ser'v cos bey;s-nd ::.'x)se h'",<: udc~d ~, i'::e ScOPe o s:'r¥io:s may be provided: aCt: thc '",,drzikizn:: tril::,s fac I: ~rovid,~d oc a tim: p~u$ dmct exBepse Ism:i:::,, <>r :x:, flat: r,zN<:: o~' $1,700 C>er ACCOUNT NUMBER WASTEWATE R ADMINISTRATION 0451 PROPOSED 2001 - 2002 REQUEST REASONS FOR CHANGE 8101 8109 8172 8173 OFFICE SUPPLIES Copier Paper, Toner, Pens, Pencils, Locks Etc. POSTAGE Postal Costs for Administration letters etc. FURNITURE AND FIXTURES OFFICE MACHINES $5,000 $1,000 $1,ooo $1,ooo 8301 8341 85OO 850A 8502 BUILDING Building Maintenance WW's share of Service Center renovations and repairs 8301 Totals OFFICE MACHINES Computer and Copier Repairs PHONES J. Coulter 7194 PS Arora 7189 K. Thuesen 7165 D. Hunter 7123 D. Brown 7112 B Kiser xxxx RonLinn 7186 Kim Young 7150 Intern 8454 8500 Totals TELE PAGERS, CELL PHONES Pager K. Thuesen Pager K. Banks Cell Phone Jim Coulter Cell Phone Kim Young Cell Phone Gayla Wright Cell Phone PS Arora 850A Totals SPECIAL SERVICES Wastewater Permit Fees Upper Trinity Water District Executive Physicals North Central Texas Council of Governments Biodegradable bags Consultant Fees UNT Comprehensive Plan activities Emergency Management to meet RMP criteria Miscellaneous administration expenses Drainage Fee Consultant Contract Water Shed Protection I/I Penalties Impact Fee Study 8502 Totals $3,000 $22,000 $25,000 $25O $445.00 $445.00 $445.00 $445.00 $445.00 $445.00 $445.00 $3oo.oo $445.00 $2,670.00 $25O $250 $1,200 $1,200 $1,200 $1,200 $5,300 $5,000 $5,ooo $5oo $4,000 $15 ooo $36 000 $25 000 $15 000 $20 000 $50 000 $15 000 $25 000 $50,000 $ 265,500 EXHIBIT VI ORDINANCE NO. AN OPG)INANCE OF THE CITY OF DENTON, TEXAS AUTHORIZD,;G THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH JAMES DL~4CAN & ASSOCIATES, 1NC. FOR PROFESSIONAL ENGINEERING AND CONSULTING SERVICES PERFAIN[NG TO THE PREPARATION OF .AN UPDATED IMPACT FEE STUDY FOR THE WATER ,AND WASTEWATER UTILITIES; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council deems ttnat it is in the public interest to engage Janes Duncm2 & Associates, Inc., d/b/a Duncan Associates, a Texas Corporation (hereafter "Duncan"), situated in Austin, Texas to provide professional engineering and consulting services pertaining to the preparation o:f an updated impact fee study for the water and wastewater utilities; and WHEREAS, the City staff has reported to the City Council that tlhere is a substantial need for the above-referenced professional engineering and c,onsulting ser¥ices, as required by applicable law; that limited City staffeannot legally perform the specialized services and tasks with its own personnel', and that it is accordingly necessary for the City to engage an outside consulting firm to complete an update of the previous 1998 impact fee study tbr tine water and wastewater utilities', and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Se~wices Procurement Act," generally provides that a City may :not select a provider of professional services on the basis of competitive bids, but musl select the provider on the basis of demonstrated competence, knowledge, and qualifications, and for a fftir and reasonable price; NOW TIIEREFORE, 'PHE COUNCIL OF THE CITY OF DEN'EON HEREBY ORDAINS.: S:CTION 1. That tlne City Manager :is hereby authorized to execute a Professional Services Agreement with James Duncan & Associates, Inc. d/b/a Duncan Associates, a Texas Corporation, of Austin, Texas~ for professional engineering and consulting services pe~aining to the preparation of an updated impact fee study for the water and wastewater utilities; in substantially the form of' the Professional Services Agreement attactned thereto and incorporated herewith by reference. SECTION 2: That tine award of this Agreement by the City is on the basis of the demonstrated competence, knowledge, and qualifications of Duncan and the demonstrated ability of iDuncan to. perfomn the sea;ices needed by the City for a fair and reasonable price. SECTION 3' That 'the expenditure of ffmds as provided in the attached Professional Services Agreement is hereby authorized. SECTION 4: Tha this ordinance shall passage and approval. PASSED AND .APPROVED this the become effective day of immediately upon its ,200Z EUL~E BRO'CK, MAYOR ATTEST: JENNIFER WALTERS, CiTY SECRETARY By: APPROVED AS TO LE,GAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: S:~,Our DocLm~ents'Ordi!'~ances';02\I)uinca~ Associates PSA WWW [pdtd Impact Fcc Study.doc 2 STATE OF TEXAS COUNTY OF DENTON PROFESSIONAL SERVICES AGREEMENT FOR THE WATER AND WASTEWATER iMPACT FEE UPDATE THIS AGREEMENT is made and entered into as of the__ day of , 200__~ by and between the City of Denton, Texas, a Texas Municipal Co¢oration, with its principal offices at 215 East McKinney Street, Denton, Texas 76201 (hereafter "OWNER") and James Duncan and Associates, Inc., doing business as. Duncan Associates, a Texas corporation, with its offices at 13276 Research Boulevard, Suite 208, Austin, Texas 78750 (hereafter "CONSULTANT"); the parties acting herein, by and through their duly-authorized representatives and WITNESSETH, that in consideration of the mutual promises, covenants, agreements herein, and in consideration of the premises, the parties hereto do mt_itt!ally AGREE as ibllows: ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to per:fbrm the services herein in connection with the Project as stated in the Articles to follow, with diligence and in accordance with tine professional standards customarily obtained fbr such services in the State of Texas. The pro, fessional services set fbrth herein are in connection with the following described prqject (the "Prqject"): Pro:f;zssional engineering services pertakdng to the update of the City's water and xvastewater impact fees. ARTICLE II SCOPE OF SERVICES, The CONSULTANT shall perform the :fblIowing Basic Services in a professionai anncr: 7'o perfb, rm those professional services as set ibrth in tbe Scope of .77'~tli.~2!..I~. and :!?.;~_?~['gposat - Water and Wastewater Impact Fee Update Gr the City of Denton, dated April 24, 20!}2, prepared by CONSULTANT for OWNER; which document is attached hereto as Exhibit ' A,' and is incorporated herein by ref'erence; which document is comprised of, and. subdivided into, the following three (3) sections: Exhibit "A": Scope of Services Exhibit "B": Project Schedtde Exhibit "C": Cost Proposal B. If there is any conllict, or i:£ any confl:ic, t arises between the terms of tlnis Agreennent and Exhibits" A ~ and attached to this Agreement, the terms and conditions of this Agreement shall control over the terms and conditions of the Exhibits. AR i'ICLE III ADDITIONAL SERVICES Any additional services to be performed by the CONSULTANT, if authorized by the OWNER, which are not included as Basic Services in the above-described Scope of Services, set tbrth as provided by Article II. above, shall be later agreed-upon by OWNER and CONSULTANT'~ who shall detcnnnirre, in writing,, the scope of such additional services, the amount of' compensation for such additional services, and otlner essential terms pertaining to the provisio, r~ of such additional services by the CONSULTANT. AR7I:' I C L E 1V PERIOD OF SERVICE. This Agreement shall become efTective upon its executiorl, by the OWNER and the · ~ CONSULTANT, and upon the issuance of a notice to proceed by the O¥ NER, and shall remain in fbrce and effect for the period that may reasonably be: required fbr tine completion of tine Project, including Additional Services, if any, and any required extensions approved by thc OWNER. This Agreement may be sooner tenTfinated in accordance with the provisions hereot( Time is of the essence in this AgreennenL CONSUL'I'ANT shall make alt reasonable e£forts to complete the se~5, ices set fbrth herein as expeditiously as possible and to meet tlne schedule reasonably established 'by the OWNER, acting through its City Manager or his designee. ARTICLE V COMPENSATIO'N A. BILLING AND PAYMENT: For and in consideration of"the professions! se~ .~ces to be perforated by the CONSL L lAN 1 lnerein., the OWNER a~rees to pay CONSULTANT, based upon. the satisi5~.ctory completion of the Basic Services tasks set ibith in the Scope of Services as shown in Article ii above; as follows: CONSULTANT shall perfolTn its work on this Project in accordance with the provisions of those tasks which are described mid as set forth in. the "Scope of Services" of Exhibit 'A" attached hereto .and incorporated herewith by reference. For and in consideration of the professional services to be perf'ormed by the CONSULTANT herein, the OWNER agrees to pay a total fee per task as set ~bllh in Exi~ibit "C'.. The total compensation fbi: ail sep¢ices described in Exhibit "A' is $39~560. Partial payments to the CONSULTANT will be made monthly in accordance with the statements reflecting the actual completion of tine Basic Se:twices, rendered to and approved by the OWNEiR through its City or his designee., However, under no circumstances shall any mo~thly statement for services exceed the valt~e of' the work perforated at the time a statement is rendered, The OWNER may withlnold the final ten (10%) percent of the above total cor~tract amount until satis~hctory completion of the Project by the CONSULTANT. Nothing coI~tained in this A~icle shall require the OWNER to pay :for any work which is unsatist;actory as reasonably determined by the City Manager or his designee, or which is not submitted by CONSULTANT t~:~ ~he OWNER in compliance with the terms of this Agreement. It is specifically understood and agreed that the CONSULTANT shall not be authorized to [mdertake any work purs~.m!:}t to this Agreement wbicln would require additionaI payments 'by the OWNER for a~ny charge~ expense or reimbursement above the not-to- exceed annount as stated herefl~aboxe~ without first tnaving obtafl~ed the prior written authofizatior~ :from the OX~?NER. CONSULTANT shall not proceed to perfomn any services to be later provided for under Article III: "Additional ~er ~ces without first obtain:ing prior written authorization fl~om the OWNER~ B. ADDITIONAL SERVICES: For add/tiorl, al services authorized in writing by tile OWNER hn Article III. hereinabove, CONSULTANT shall be paid based on a to-be-agreed~upon Schedrfle of Charges, Payments for additional services shall be due and payable upon submissio~ by the CONSULTANT~ and shall be irt accordm~c¢ with Article V,B, hereirmbove. CONSULTANT shall bill £rom time sheets~ o~ a o:ace~-monthly basis, i~ minimm~t 1/4 hour or smaller time increme~nts~ at the hourly Billing Rates shown :in Exhibit "C'~ which is incorporated herewitln by referer~ce ,. "S'ubcontract Expense" is defSl~ed as those expenses, if any~ incurred by CONSULTANT in the e:mp!oyment of others in outside fim~s, t!'or services in th.e area of pro?cssionat e~ngineering, or related services. Any stlbcontractor or sub-consultant bitlflng reasonably incurred by the CONSULTANT in connect'ion with authorized additional sept,Sees for the Prqject shall be invoiced to OWNER at the actual cost plus ten percent. "Direct Non=Labor Expense" is defined as that expense, based upon actual cost, for a~y out~of~,pocket expense reasonably incurred by the CONSULTANT in the per:tbrmance of additiona! services trader this Agreement Ibr long distance telephone charges, telecopy charges, messenger services:, prfl~ting and reproduction expenses, out-o:t:po, cket expenses for purchased computer time, prudently incurred travel expenses related to the work on the Project, and s:imilar i~ncidental expe~lses incurred ir~ connection with the additional se~wiccs fbr the Project. PAYMENT: Statements for Basic Services and any Additional Services shall be submitted to OWNER no more frequently than once monthly. If the OWNER f2ils to make payments due the CONSULTANT lb.r setx, ices and expenses w/thin forty<five (45)days after receipt of the CONSULTANT'S undisputed statement thereoi~ the amounts due the CONSULTANT will be increased by the rate of one percent (1%) per month fi'om and after the said forty-filt[h (45th) day, and in additiom thereailer, the CONSULTANT may, after giving ten (10) days written notice to the OWNER~ suspend services under this Agreement 'until the CONSULTANT has been paid in full flor all amounts then due and owing, and not disputed by OWNER, ~or services, expenses and char'ges. Provided, however, nothing hereiu shall require the OWNER to pay the late charge of one percent (1%) per month as set Grth herein, if the OWNER reasonably detem~incs that the CONSULTANT's work is unsatisSactory, and OWNER has notified CONSULTANT of that iltct in writing. ARTICLE VI OBSERVATION AN[. REVIEW OF THE WORK The C£ NSULTAN l will exercise re~tsonable care and due diligence in discovering and promptly reporting to the OWNER any delkcts or deficiencies in the work of the CONSULTANT or any of its subcontractors or sub-.consultants. AR~I ICLE VH OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants)pursuant to this Agreement are instrmnents of service and shall become the property of the OWNER upon the termination of this Agreement. The CONSULTANT is entitled to retain copies of all such documents. The documents prepared and fi_m~ished by the CONSULTANT are intended only to be applicable to, this Project and O¥* ~rNER'S use of these documents in other prr_~iects shall be at OWNER'S sole risk and expense~ In the event the OWNER uses the Agreement in another project or i~or other pm'poses than specified herein any of the infbrmation or materials developed warsuant to this Agreement, CONSULTANT is released from m~y and all liability relating to their r~se in that pr(ljecL ARTICLE VIII INDEPENDENT CONTRACTOR CONSULTANT shall provide ,'-,s; serx ice, to OWNER as an independent contractor, not as an employee of thc OWNER CONSULTANT shall not have or claim any right arising fi'om employee status~ INDEMNITY' AGREEMEN,,, ,, t Thc CONSUL!A~ ,T shall indemnifS, and save and ho, Id harmless the OWNER and its o:~Tficials, ol~icers, agents, attorneys and employees from and against any and alt liab:ility, claims, demands, damages, losses and expenses, inc/t~ding but not limited to court costs and reasonable attorney fkes incurred by the OWNER, and including without limitation damages for bo,dily and personal injury, death~ or property damage, resulting from the negligent acts or omissions of the CONSULTANT or its officers, shareholders~ agents, subcontractors, subconsultants, attomeys~ and/or employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a par'ty to this Agreement and nothing herein shall waive any of the party's deiknses, both at law or equity, to any claim, cause of action or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved, ARTICLE X INSI.~RANCE During the pert~>rmance of the Services reader this Agreement, CONSULTANT shall ,~th an inst~rance company licensed to do business in the State maintain the following insurance ¥ ,' ~ of Texas 'by the State Insurance Board or any successor agency, that has a rating witln A. iM. Best Rate Carriers of at least an "A-' or above: A. Comprehensive General Liability Insurance with bodily i~ljury limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 in the aggregate; and with property damage limits of not less thal:~ $100,000 tbr each occurrence, and not less than $100,000 in the aggregate. B. Automobile Liability Insurance with bodily' injury limits of not less than $500,000 for ea.c!~ person and not less than $500,000 for each accident; and with property damage limits for not less than $100,000 for each accident C. Worker's Compensation Insurance in accordance with statutory requirements and Employer's Liability Insurance with limits of not less than $100,000 for each accident, D. Professional Liability Insurance with limiis of not less than $1,000,00,0 annual aggregate. CONSULTANT shall furnish insurance certificates or insurance policies to the OWNER to evidence such insurance coverage. The insurance policies shall name the OWNER as an additional insured on all such policies to the extent that is legally 5possible, and shall contain a pro tston that such insurance shall not be cancelled or modified without at least thirty (30) days prior written notice to OWNER and CONSULTANT. In such event, thc CONSULTANT shall, prior to the effkctive date of the change or cancellation of coverage, deliver copies of any such substitute policies, 2mqislning at least the same policy limits and coverage, to OWNER. ARTICLE XI ARBITRATiiON AND ALTERNATE DISPUTE RESOiLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution such as mediation. No arbitration or alternate dispute resolution arising out of or relating to this Agreement involving: one party's disagreement, may include the other party to the disagreement without the other's approval. ARTICLE XII TERMINATION OF AGREEMENT A. Notwithstanding any other provision of this Agreement, either party may terminate this Agreement by providing thirty (30) days advance written notice to. the other party. This Agreement may alternatively be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement. No such termination will be effected unless the other party is given (1) written notice (delivered by certified mai retun'~, receipt reqtiested) of intent to terminate and setting fortth the reasons specifying the nonperformance or other reason(s), and not less than thir!y (30) calendar days to cure failure; and (2) .an opportunity 1k)r consultation with the terminating party prior to termination. C. If this Agreement is tetTninated prior to completion of the selwices to be provided hereunder, CONSULTANT shall immediately cease all services upon receipt of tlhe written, notice of ten'nination fi'om OWNER, and shall render a final bill for services to the OWNER within twenty (20) days af[er the date of termir~a:tion. The OWNER shall pay CONSULTANT for all sepdces properly rendered and satisl,'actorily performed, and for reimbursable expenses prior to notice of tennin.ation being :received by CONSULTANT, in accordance with Article V. of this Agreemen, L Should the OWNER subsequently contract with a new consultant for the continuation of services on the Prqject, CONSULTANT slnall cooperate in providing information to the OWNER and to the t~ew consultant, tf applicable, OWNER shall allow CONSULTANT a reasonahle time to transition and to turn over the Project to a new consultant, CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT purstmnt to this Agreement to the OWNER on or belbre the date of termination, but may maintain copies of st:tch documents for its files. ART'ICLE XI[I RESPONSIBILITY FOR CLAIMS AND LIABiLITiES Approval of the work by the OWNER shall not constitute, nor' be deemed a release of the responsibility arrtd liability of the CONSULTANT, :its oPficers, employees, agents, subcontractors, and sub-consultants for the accuracy m~d competency of their designs or other work performed pursuant to this Agreement; nor shall such approval by the OWNER be deemed as an assumption of such responsibility by the OWNER for any de:tkct in the design or other' work prepared by ~he CONSULTANT~ its principats, ot!ficers, employees~ agents, subcontractors, and sub=consultants, ARTICLE XIV NOTICES All notices, communicaions, and reports required or permitted under this Agreement shall be personally delivered to; or telecopied to; or mailed to the respective parties by depositing same in the United States mail at the addresses shown bo]ow, postage prepaid, certified mail, return receipt requested, unless othemdse specified herein: To CONSULTANT: To OWNER: James B. Duncan, President Dun. can Associates 13276 Research Btvd,, Ste, 208 Austin, Texas 78750 Fax: (512) 2580994 City of Denton, Texas City Manager 215 East McKinney Denton, Texas 76201 Fax: (940), 349=8596 Ali notices given under this Agreement shall b.e efl;ective upon their actual receipt by the party to whom such notice is given. ARTICLE XV ENTIRE ,,AGREEMENT This Agreement consisting of eleven (11)pages m~d 'three (3) Exhibit(s) constitutes the complete and final expression of the agreement of the pa~Xies and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous o~Tcrs, promises, representations, negotiations, discussions, communications, understandings, m~d agreements which may have been made in connection wi. tin the subject matter of this Agreement~ ARTICLE XVI SEVERABILTY If may provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenfbrceable, it shall be considered severable from the remainder of this Agreement, and shall not cause the remainder to be invalid or unenfi>rceable. In such event, the parties shall refbm~ this Agreement, to the extent reasonably possible, to replace such stricken provision with a valid and enfbrceahle provision which comes as close as possible to expressing the original intentions of the parties respecting any such stricken provision, ARTICLE XVtI COMPLIANCE WITH LAWS The CONSLJLTANT shall comply with all federal, state, local laws, rules, regulations, and ordinances applicable to the work perfbrmed by CONSULTANT herem~der~ as they may now read or as they may hereafter be amended. ARTICLE XVIIi D!SCRIMIiNATION PROHIBITED In performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin, or ancestry, age, or physical handicap. ARTICLE XIX PERSONNEL A. CONSULTANT represents that it has or will secure at its o. wn expense ali personnel required to perfom~ all the services required under this Agreement. Such personnel shall not be employees or o:fTicers of} nor have any contractual relations with the OWNER. CONSULTANT shall immediately in!btm the OWNER in writing of any conflict of interest or potent/a! conflict of interest that CONSULTANT may d:iscover~ or which may arise during the term of this Agreement. B. All services required hereunder will be perRermed by CONSULTANT or under its direct supervision. All personnel engaged in performing the work provided £or in this Agreement, shall be qualified, and shall be authorized and permitted under state and local laws to perform sucl'~ services. ARTICLE XX ASSIGNABILITY The CONSULTANT shall not assign any interest in this Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation or othe~vise)without the prior written consent of the OWNER. CONSULTANI7 shall further promptly notif}, OWNER in writing of any change of its name as well as of any significant change in its corporate structure, its business address, its operations, or regarding its solvency. ARTICLE XXI iMODI FICATION No waiver or modification of this Agreement or of any covenant, condition, limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, No evidence ol' m~y waiver or modification shall be offered or received in evidence in any proceeding arising between the pmlies hereto arising out ot} or alTccting this Agreement, or tlhe rights or obligations of the parties hereunder, unless such waiver or modification is in writing, dully execmed. The parties l~rther agree that the provisions of this Article will not be waived unless as herein set forth~ ARTICLE XXII MISCELLANEOUS The following Exhibits are attached to, incorporated herewith, by reference, a~d are made a part of this Agreement t:or all purposes pertinent: Exhibit "A": Scope of Services Exhibit "B"': iPrqject Schedule Exhibit "(7': Cost Proposal B. CONSULTANT agrees that OWNER shall, tmtil the expirat:ion of four (4), years after the final payment made 'by OWNER under this Agreement, have access to and the right to examine any directly pertinent books, doc umcnt~ ," = s papers and records of the CONSULTAN F involving transactions relating to this Agreement. CONSULTANT agrees that OWNER shall have access during nom~al working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space in order to conduct examinations or audits hr compliance with this Article. OWNER shall give CONSULTANT reaso~mble advance notice of all inte~ded examinations or audits~ C. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be governed by and constrt.!ed in accordance with the laws of thc State of Texas. D. For purposes of this Agreement, the parties agree that the Project Principal shall be James B. Duncan, President, FAICP, and the key persons who. will perform most of the work: as the Project Team, include the Project Manager, Clancy Mullen, AICP. This Agreement has been entered into with the understanding, expectation, and the OWNER's reliance, that the above- stated employees of CONSULTANT shall perform all or a significant portion of the work on the Project. Any proposed changes regarding the change of the Project Manager or other key perso~mel, requested by CONSULTANT, respecting one or more: of the above-stated employees, shall be subject 'to the approval of the OWNER, which approval the OWNER shall not unreasonaNy withhold. Nothing herein shall limit CONSULTANT fi'om using other qualified and competent members o:f its fim~ to perform the other incidental services required herein, under its supervision or control. CONSULTANT shall commence, carry on, and complete its work on the Project with all applicable dispatch, arid in a sound, economical, efficient manner, and in accordance with the provisions hereof in accomplishing the Prqject, CONSULTANT shall take such. steps as are appropriate to ensure that the work involved is properly coordinated with any related work being carried on by the OWNER. The OWNER shall assist 'the CONSUL'IiANT by placing at the CONSULTANT's disposal all available info:rmation pertinent to the Project, including previous reports, any other data relative to the Project and a:rranging l'br lhe access to, .and make all provisions for the CONSULTANT to enter in or t~pol~, public and private property as required fbr the CONSULTANT to perform professior~al services under this Agreement, OWNER and CO, SULIANT agree that CONSULTANT is entitled to rely upon information furnished to it by OWNER without tlhe need for :2lrther i~quiry or investigation into such irlformation. G. The ca.ptior~s of this .Agreement are for ir~X)rmat:ional pulxooses only and shall r~ot i~ any way affkct the substantive terms or conditiol~s of'this Agreeme!~t, IN WITNESS WHEREOF, the OWNER, the City of De'l~to~, Texas has executed this Agreement in fo. ur (4) original counterparts, by arid throt~gh its dt~ly m~thorized City Mm'roger; and CONSULTANT has executed this Agreement by arid thro[:tgh its duly authorized undersigned officer ol~ this the ............... day ol ,200 .............. , "OWNER" CITY OF DENTON, TEXAS A Texas iMtmicipal Corporation By: MICHAEL A. CONDUFF CITY MANAGER ATTEST: JENNIFER WALTERS~ CITY S CRETAR5 By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CiTY ATTORNEY By: "CONSULTANT" ATTEST: James Duncan and Associates, Inc. A Te:xas Corporation doing business as Duncan Associates Bx JamesOn"'.' Duncan, FAICP, President By: Clancy Mullen, AIC Senior Associate EXHIBIT "A" SCOPE OF SERVICES Project Understanding and Approach The purpose of this project is to assist the City of Denton in updating its existing water and wastewater impact fees for treatment facilities and expanding these fees to cover distribution and collection line costs as welI. The update will bring the fees in line with current costs, and comply with the requirement of Chapter 3.95 that the Capital Improvements Plan and fees be updated every five years (recently changed from three year's). One of the things the City wishes to do differently this time is to include interest costs in the impact fee calculations. The City wants to have revenue credits calculated as they were last time, but to compare these results with the alternative, provided by last year's amendments to Chapter 395, of reducing the fees by half in lieu of calculating revenue credits. The, City recent!y completed an analysis of capital improvement needs for the water distribution system and the wastewater collection system based on the land use assumptions contained in the recently-completed comprehensive plan.. With some additiona! analysis, this wilt serve as the basis for the capital improvements plan. All elements, of the capital improvements plan required by Chapter 395 to be certified by a professiona! engineer will be prepared by the City or the City's engineering consultant. No engineering work is included as part of this proposal. The update study will explore the 3ossibility of basing the impact fees for new residential customers on a dwelling unit basis rather than meter size. The study will also explore varying the fees for single-.-family development on the basis of dwelling unit size. Finally, the update study will explore the possibility of excluding an older, developed "infill" area from the service area for the line component of the fees.. Task 1: Project Organization Immediately upon contract: execution, the Consultant will meet with key members of City st:afl to gather available information related to the project; identify' major technical and policy issues involved; coordinate staff and consultant responsibilities; and refine the project schedule. The City staff will include representatives from water and wastewater, engineering, planning, finance and law. The Consultant will need to. gain a clear understanding of the City's current policy of line extensions and developer contributions for off-site improvements. This will also be a good opportunity to identify boundaries for a potential infill area to be excluded from the service areas for the purpose of the line components. The City should provide the Consultant, without charge, copies of all relevant plans, studies and documents needed to pedorm the scope of work. These may include, but are not limited to: capital improvement plans, for water and wastewater maps of service area boundaries (letter size) map showing 'infill area" to be excluded from service areas for line fees current and historical data (last five years) on number of customers and consumption by meter size and customer class most recent annual budget and comprehensive financial report debt payment schedules 'for oiutstanding water/wastewat:er bond issues prospectus fro. m recent watedwastewater bond issues data on existing and projected land use and serviced population within the service areas At the. conclusion of the task, the Consultant will prepare a memorandum summarizing the organizational framework for the project and listing additional data needs. The memorandum will be delivered within two weeks of the organizational meeting. Deliverable: Project Organization Meeting Project Organization Memorandum Task 2: Land Use Assumptions City staff will develop 2002: to 20t2 growth projections for the City's water service area (Certificate of Convenience and Necessity or CCN) and wastewater service area. Projections shall include total population, housing units, and nonresidential land use (acres and building floor area) and may also include estimates of population served by City water and sewer systems. City staff will also prepare maps of the ser¥ice areas. This can be done as a single map showing the water service area, the portion of the water service area that is excluded from the wastewater service area, and the "infill"' area that will be excluded from the service areas for the line component of the water and wastewater fees.. Consultant will coordinate, with City staff on the nature and format of the land use assumptions and will review the draft City resolution establishing a public hearing date: and draft public notices for compliance with Chapter 395. tt is assumed that City staff will handle all public hearings relating to adoption of the Land Use Assumptions, Deliverable: Assistance on Land Use. Assumptions Task 3: Draft Capita] ];mprovements Plan City staff or a consulting engineering firm wil prepare the list of water and wastewater capital improvements required to accommodate growth over the 2002~2012 planning horizon based on the land use assumptions. Some of these improvements may be existing facilities that have excess capacity that will be used by new customers. For each improvement, the estimated cost and the percent of the cost attributable to growth over the planning horizon based on capacity utilized will be provided. Anticipated interest costs for planned improvements and past and future interest costs for existing improvements with excess capacity should be included in 'the cost estimates, Any improvements, or the share of the cost of: any improvements that are required to correct existing capacity or quality deficiencies or to meet upgraded standards should be identified as nomgrowth-related costs. The City or its consulting engineer will provide this information to the Consultant in a report certified with the seal of an engineer licensed in the State of Texas. The Consultant will coordinate with the City or consulting engineer on the report described above that will be the basis for the impact fee Capital Improvements Plan, In this task, the Consultant will prepare the initial draft of the water and wastewater Capital Improvements Plan. The report will describe the methodology and formula used to calculate the fees, document all data sources and assumptions, and include a fee schedule that represents the fees that could be charged. At least one full working draft will be delivered to City staff for review and comment prior to delivery of the draft study. Deliverables: Working Draft for Staff Review Public Review Draft Capital Improvements Plan Task 4: Draft Ordinance Amendments The Consultant will prepare an initial draft of amendments to the City's impact fee ordinance to implement 'the updated water' and wastewater treatment impact 'fees and new water and wastewater line impact fees, The amendments will also address other issues identified in the study, which may include incorporating interest costs as an eligible impact fee expenditure, exempting an "infi!l" area from the line fees, basing residential fees on dwelling units rather than meter size, and basing single-family fees on unit size. Deliverables: Working Draft for Staff Review Public Review Draft Impact Fee Ordinance Task 5: Local Review Meetings Durin9 the course of the project, the Consultant will make up to two trips to Denton to meet with City staff, the Capital improvements Advisory Committee, the City Council or other groups. The role of the Advisory Committee will be to review the methodology and calculations in the Capital Improvements Plan, to provide input on policy issues to be incorporated into the amended impact fee ordinance, and to develop community consensus, and support for the proiect. These policy issues include whether the fee should be charged at some percentage of the full cost, whether they should be phased in gradually and how credits should b,e provided for required developer contributions. Additional partici:pation in public meetings may be provided on a time-plus-expense basis, Deliverables: Two (2) Person-Trips Task 6: Fina! Study/Ordinance Following review and comment on the draft capital improvements plan and impact fee ordinance amendments by City staff and the Advisory Committee, the Consultant will make appropriate revisions and provide final drafts of both documents. Deliverables: Final Capital Improvements Plan Final Impact Fee Ordinance Amendments Task Adoption Hearings The Consultant will attend up to three public hearings to present the Capital Improvements Plan and ordinance amendments to the City Council and/or other review bodies. Additional pa~icipation in adoption meetings may be provided on a time-p!us-.expense basis. Deliverables: Three (3) Person-Trips EXH~B!T "B' PROJECT SCHEDULE The project schedule outlined in the scope of services is summarized in the following flowcha~. As shown below, the project could be completed in six months, although this schedule is ambitious and would require expedited work by City staff to prepare the land use assumptions and engineering analysis for the capital improvements plan and to provide quick reviews of Co, nsu!tant's draft work products. Jun Jul Aug Sep Oct Nov Project Organization (1 trip) 2: Land Use Assumptions, 3: Draft Capital Improvements )lan 4: Draft Ordinance Amendments 5: Local Review Meetings (2 trips) 6:: Final Study/Ordinance 7: Adoption Hearings (3 trips) draft deliverable ~ = final deliverable ~ = meeting/presentation IiiXHIBIT COST PROPOSAL The total cost of the professional services described in this proposal is$39,560, This lump- sum budget; includes all direct and indirect expenses incurred by the consultant team in performing the services, The breakdown of project cost by task is presented below, The City will be billed monthly based on percent completion of individual tasks, Task Cost Project Organization $3,460 2: Land Use Assumptions $2,640 Draft Capital Improvements Plan $14,960 4: Draft Ordinance Amendments $5,600 5: Local Review Meetings (2 trips) $3,400 6: Final Study/Ordinance $4,400 7: Adoption Hearings (3 trips) $5,100 Total Project Additional services beyond those included in the scope of services may be provided at the following standard hourly rates: ]ames B, Duncan, FAICP-$150; Clancy MulIen, AICP-$125:, EricDamian Kelly, Esq. FAICP-$175, support planning staff-SSS. Direct expenses will be limited to travel costs (airfare, hotel, rental car, parking and meals) and direct mail costs, Additional trips may be provided on a time~p!us-direct expense basis, or on a flat rate of $1,700 per person-day. 1 2 4 5 6 DRAFT PUBLIC UT!LIT[ES BOARD MEETING MINUTES Ma> 20,2002 9: 0 0 A.M. 7 9 10 11 12 13 14 I5 16 17 I9 20 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 Aiier dctcm:lming that a quorum of the Public Utilities Board of the City of Denton, Texas was presenL the Public Utilities Board convened into an Open Meeting on Monday, May 20~ 2002 a 9:00 a,m. in the Se~'ice Center Training Room, City of Denton Service Center~ 901-A Texas Street, Dentor~, Texas~ RESENT: Dick Norton,, George Hopkins, Charldean Newell, Dick Smith, Jim Wilson, Don White and Bill Cheek EX OFFICIO ML,, IBERS Mike Conduff. Ct%~ Manager Iloward Man:in Assistant City Manaocr/Uti, - :hr:e=' ' ~ ITEMS FOR INDIVIDUAL CONSIDERATION: 5) Consider approval of the scope of work and cost proposal fi'om Duncan & Associates Iix: an update of the impact l~es for the water a~d wastewater utilities tS.)r an amom'~t not to exceed S39,560. Tim Fisher: Assistm~t Director of' Water Utilities, presented this item. Fisher reported that Impact Fees are governed by Chapter 395 of the Local Government Code. Under this statute impact fees arre regulated fbr both ~he water and wastewater t~tilities. The Impact Fee Act requires that the imp[act fees be updated every three years. Senate Bill 243 allowed the regulated entities up to 2f~v~ years to tqodate the imDact [L~e ordinance. To comply wifl~ the 5~year window, staff has been monitoring and assessing the CmTent impact fee ordina:~ce. The impact of adding capacity in the water distribution system and the wastewater collection system is not addressed in the current ordinance, To address Phase 1I of the impact ia:e ordinance and to con!ply wit!~ t:he smte~retxxting requirement, staff requested a proposal fi'om the const~Itmg finn of Dtmcan and Associates. Duncan and Associates had completed the Phase ~ hnpact Fee Study, which was adoptect by the Cib~ in I998. They have submitted a scope of work and cost proposal to update the impact l~e ordinance. llopkins moved approval of the cost proposal from Duacan and Associates, with a second fi:om Newell. The motion was approved unanimously with a vote of %0~ EXHIBIT IX Agenda 02-021 06/18/02 #13 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: June 18, 2002 Electric Howard Martin, 349-8232 SUBJECT AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO APPROVE AND EXECUTE A TOWER/GROUND LEASE AGREEMENT BY AND BETWEEN THE CITY AS LESSOR AND CINGULAR WIRELESS AS LESSEE FOR THE LEASE OF TOWER SPACE ON THE MCKENNA PARK TOWER AND ON THE GROUNDS; AUTHORIZING THE EXPENDITURE AND RECEIPT OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. BACKGROUND Cingular Wireless wishes to lease space on the DME Mc Kenna Park tower for the installation of a nine (9) antenna array, associated coaxial cables and ground space for a 396 square foot building. These antennae would be located 120 15et above ground level (AGL), which would be some 30 feet below our existing customer, Verizon Wireless. This lease will create a $1027.60 monthly and $12,331.20 yearly revenue stream for DME. The revenue will increase 4% per year after completion of the first year for the term of the agreement. The term of the lease is fifteen (15) years with five (5) year renewal options available thereafter. The terms of this lease are in accordance with the terms of other DME lease agreements of this type. The fee for the service was established in accordance with the industry index for this type of service. PRIOR ACTION/REVIEW The Public Utility Board approved by a vote of six (6) to zero (0), with one member absent at the April 1, 2002 meeting. FISCAL INFORMATION This Agreement will provide DME $12,331.20 of annual revenue, escalated at 4% per year for a total income of $246,914 for the term of the contract. DME can provide this service at no additional cost above the cost DME would incur to maintain the tower for its own use. EXHIBIT 1. Ordinance 2. Contact 3. PUB Meeting Minutes Respectfully submitted: Sharon Mays Director Of Electric Utilities Prepared by: Ray D. Wells Assistant Director Of Electric Operations ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO APPROVE AND EXECUTE A TOWER/GROUND LEASE AGREEMENT BY AND BETWEEN THE CITY AS LESSOR AND CINGULAR WIRELESS AS LESSEE FOR THE LEASE OF TOWER SPACE ON THE MCKENNA PARK TOWER AND ON THE GROUNDS; AUTHORIZING THE EXPENDITURE AND RECEIPT OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Manager is hereby authorized to execute a Tower/Ground Lease Agreement (the "Lease") as Lessor, with Cingular Wireless, acting in its capacity as general partner of the Dallas SMSA Limited Parmership, as Lessee, for the lease of tower space on the McKenna Park Tower and grounds, a copy of which Lease Agreement is attached hereto and incorporated by reference herein. SECTION 2. That the expenditure and the receipt of funds as provided in the attached Lease Agreement is hereby authorized. SECTION3. That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: S:\Ottr Documents\Ordinances\02\Cingular Wireless Tower-Ground Lease-McKenna Pk Ord.doc EXHIBIT II S:~)ur Documents~Conlracts\02\Cingular Tower Lease-McKenna Park Tower 043002 Final.doc Site g4299 STATE OF TEXAS § COUNTY OF DENTON § TOWER/GROUND LEASE AGREEMENT THIS AGREEMENT, made this __day of May, 2002, (the "Effective Date") by and between the CITY OF DENTON, TEXAS, a Texas Municipal Corporation, hereinafter called "LESSOR" and Southwestern Bell Wireless, LLC, d/b/a CINGULAR WIRELESS, in its capacity as General Partner of the Dallas SMSA Limited Partnership, hereinafter called "LESSEE," organized and existing under the laws of the State of Delaware, having its principal offices at 15660 Dallas Parkway, Suite 1300, Dallas, Texas 75248. WHEREAS, LESSOR is the owner of the following described real property, including - the McKenna Park Radio Tower (the "Tower") and compound, commonly known and as described in Exhibit "A" attached hereto, in the City of Denton, Denton County, Texas; and WHEREAS, LESSEE desires to lease antenna space from LESSOR on said Tower and ground space for LESSEE'S equipment building or cabinet, and all appurtenances thereto; together with a right-of-way for ingress and egress, for the purpose of installing, operating and maintaining facilities to provide commercial mobile radio services ("CMRS"); and NOW THEREFORE, in consideration of the covenants, conditions, agreements, and rents hereinafter set forth, the adequacy of which is hereby acknowledged, LESSOR and LESSEE agree as follows: 1. LESSEE RiM. a. LESSOR hereby leases, lets and remises to LESSEE, and LESSEE takes from LESSOR, sufficient space on LESSOR'S Tower at the 120 feet AGL to attach LESSEE'S nine (9) antenna array, an 18' x 22' area (approximately 396 square feet) of ground space adjacent to said Tower for LESSEE'S equipment building or cabinet and all appurtenances thereto. LESSOR also grants to LESSEE the right-of- way for ingress and egress to and fi'om said Tower and equipment building or cabinet. The equipment space and ground space described above are hereinafter referred to as the "Leased Premises", which together with the right-of-way for ingress and egress are more particularly shown on Exhibit "A." b. LESSEE'S antenna army, equipment cabinet, telecommunications Site#4299 equipment (collectively the "CMRS facilities") and the location of these facilities, including where the antenna army attaches upon the Tower are more particularly illustrated and defined in Exhibit "A", which is attached hereto and made a part hereof for ail purposes. LESSEE'S equipment cabinet shall be installed on a slab foundation or otherwise at LESSEE'S expense. Said equipment cabinet shall be owned by LESSEE and shall be removed from the Leased Premises by LESSEE within a reasonable period following termination of this Agreement, but in no event later than six (6) months thereafter. The equipment building or cabinet will be placed adjacent to the Tower as described in Exhibit "A." c. LESSOR shall grant any and ail easements on the Leased Premises as may be required by the appropriate electric, telephone, and any other utility company for the purpose of servicing LESSEE'S CMRS facilities. LESSEE shall not use or permit the property to be used for any purpose other than a CMRS facility. LESSOR shall ailow LESSEE to install, operate, maintain, replace and remove its CMRS facilities, and related cables, wires, conduits, antennas, air conditioning equipment, and other appurtenances as it may from time to time require. Although such equipment and appurtenances may become fixtures, they shail be and shail remain the property of LESSEE, and LESSEE shall have the right to remove ail of them at the expiration or termination of this Agreement. LESSEE, at its sole expense shail promptly repair the property once the fixtures are removed by LESSEE so that the property will be in substantiaily the same condition that it was at the beginning of the Agreement, less reasonable wear and tear excepted. LESSEE shall have twenty-four (24) hour, seven (7) days a week access to the Leased Premises in order to perform its business functions. d. LESSOR grants to LESSEE a non-exclusive fight to occupy the McKenna Park Radio Tower. This Lease in no way limits LESSOR~S ability to lease the use of the said Tower to other entities for lawful pursuits, subject to the provisions, however, of this Agreement. 2. Survey. LESSOR hereby grants to LESSEE the right to survey the Leased Premises at LESSEE'S sole expense. Said survey, if made, shall become Exhibit 'B" to this Agreement and shall supersede Exhibit "A" to the extent required. 3. Access. Prior to and after the Effective Date, LESSEE and its authorized agents shall have access to the Leased Premises at such times as LESSOR and LESSEE mutually agree for the purpose of undertaking any necessary tests, studies and inspections relating to LESSEE'S proposed use of the Leased Premises. During the term of this Agreement, only qualified and adequately insured agents, contractors or persons under LESSEE'S direct supervision and control will be permitted to climb the tower structure or to install or remove LESSEE'S antennas and/or Wansmission lines from the Tower. LESSOR retains the right to permit its own employees and agents and employees and agents of subsequent users of the tower structure, to climb the Tower structure for all purposes that do not interfere with the LESSEE'S use of the Tower, and so long as such subsequent users comply with the provisions of Paragraph 7.b. of this Agreement. Site ~4299 4. Tern. a. The term of this Agreemem shall be fifteen (15)years beginning on the first (1st) day of the calendar month (hereafter, the "Commencement Date") following the earlier to occur of: (i) the issuance of alt necessary City building permits or (ii) the commencement of LESSEE'S construction at the Leased Premises. Rent shall be paid in equal monthly installments, in advance, to LESSOR or to such other person, firm or place as LESSOR may from time to time so designate in writing at least thirty (30) days in advance of any rental payment date. 1. The first year's rental shall be Twelve Thousand Three Hundred Thirty One Dollars and Twenty Cents ($12,331.20), payable to LESSOR by LESSEE in equal monthly installments of One Thousand and Twenty-Seven Dollars and Sixty Cents ($1,027.60) per month. [Said first year's rental is calculated as follows: (i) Seventy Two Cents ($.72) per foot, per antenna/coax, per month for each foot above ground level ("AGL") to antenna centedine as rental for the Tower space; plus (ii) Two Hundred and Fifty Dollars ($250.00) per month as rental for the ground space]. 2. The rem shall be payable in advance, on an equal monthly installment basis, on the 1st day of each month throughout the term hereof. 3. On each annual anniversary of the Commencement Date of the Agreement, the rent in Paragraph 4.a. 1. above shall be automatically increased by a rote of 4% per annum over the immediately preceding year's rental. By way of illustration, this provision, for the primary fifteen (15) year term of the Agreement, provides for fifteen (15) separate rote increases. b. If, at the end of fifteen (15) years, this Agreement has not been terminated by either party giving to the other written notice of an intention to so terminate it at least nine (9) months prior to the end of such fifteen (15) year term, and the Agreemem is not then in default, then LESSOR grants to LESSEE an option to continue the Agreement for a five (5) year renewal term under the same covenants, terms, and conditions, SAVE AND EXCEPT that the subject of rental payments due under said five (5) year option shall be negotiable by LESSOR and LESSEE (based on then-current fair market rental rates for comparable CMRS facility sites). c. If, at the expiration of the first five (5) year renewal term provided for in paragraph 4.b. hereinabove, the Agreement is not then in default, then LESSOR grants to LESSEE a second, and final option to continue the Agreement for a second five (5) year renewal term under the same covenants, terms, and conditions, SAVE AND EXCEPT that the subject of rental payments due under the said second five (5) year option shall be negotiable by LESSOR and LESSEE (based on then-current fair market rental rates for comparable CMRS facility sites). Site 84299 d. LESSOR and LESSEE agree that both the fa'st five (5) year term option and the second five (5) year term option, if exercised, shall be negotiated as well as documented and executed no later than thirty (30) days prior to the expiration of the previous tenn. e. PROVIDED HOWEVER, if LESSEE is not in default hereunder and shall have paid all rents and sums due and payable to LESSOR by LESSEE as required herein, LESSEE shall have the right to terminate this Agreement at any time following the expiration of three (3) years from the Effective Date hereof, with six (6) months prior written notice to LESSOR, without further obligation hereunder. Notwithstanding the preceding sentence, LESSEE shall have the right to terminate this Agreemem upon thirty (30) days prior written notice if: (i) environmental contamination not caused by LESSEE is found on the Leased Premises or (ii) before issuance of all necessary Governmental Approvals. 5. Contingencies. a. It is understood and agreed that LESSEE'S ability to use the Leased Premises is contingent upon its obtaining, either before or after the Effective Date of this Agreement, all of the certificates, permits, and other approvals that may be required by any federal, state or local authorities ("Govemment Approvals") as well as satisfactory soil boring tests, tower load studies, title review, and/or environmental studies that LESSEE, in its sole discretion, deems necessary ("Initial Tests"). LESSEE shall make due and timely application for all such necessary Government Approvals, which LESSEE shall obtain at its sole expense. LESSEE shall be allowed to place on the Leased Premises all signs required by federal, state, or local law. b. LESSOR shall cooperate with LESSEE in its effort to obtain all Government Approvals and perform Initial Tests. LESSEE shall have the right to terminate this Agreement immediately if (i) any application for Governmental Approval is finally rejected; (ii) LESSEE, in its sole discretion, believes such application or obtaining any Governmental Approvals wilt be too costly, time consuming or there is reasonable likelihood that said application will be rejected; (iii) any Governmental Approval issued to LESSEE is cancelled or otherwise withdrawn or terminated by governmental authority; or (iv) in LESSEE'S reasonable opinion the results of any Initial Tests are unsatisfactory. Notice of said termination shall be given to LESSOR in writing by certified mail, return receipt requested, at the address shown herein. All rentals paid for the lease of the Leased Premises through said termination date shall be retained by the LESSOR; and LESSEE shall pay LESSOR for any costs expended by LESSOR in preparing the Leased Premises for the location of LESSEE'S equipment. Upon such termination, this Agreement shall become null and void, and the parties shall have no further obligations, including the payment of money, to each other. 6. LESSEE Covenants. LESSEE covenants and agrees that LESSEE'S equipment, its installation, operation and maintenance will: a. Not interfere with the operation of existing radio equipment at the Leased Site ~4299 Premises. In the event there is harmful interference to said electronic equipment, LESSEE will promptly take all steps necessary to identify the problem, and, if caused by LESSEE'S equipment, take all reasonable steps to eliminate said harmful interference within seven (7) days after notice is received from LESSOR to LESSEE advising of the interference. If said interference cannot be eliminated within fifteen (15) days after receipt of notice thereof, LESSEE agrees to immediately suspend operations (transmissions) at the Leased Premises while the interference problems are studied and a means found to mitigate *.hem. If said interference cannot be eliminated, then LESSEE shall remove its building and equipment from LESSOR'S property and this Agreement shall hereupon be terminated. b. Comply with all applicable rules and regulations of the Federal Communications Commission ("FCC"), and electrical codes of the City and/or State. Under this Agreement, LESSOR assumes no responsibility for the licensing, operation and/or maintenance of LESSEE'S CMRS facilities and appurtenances. If the addition of LESSEE'S equipment on the Leased Premises requires an increase in the current height of the Tower or a change in the location of the Tower on the Leased Premises, LESSEE shall not install its equipment or increase the height of the Tower until obtaining clearance from LESSOR so that LESSEE may comply with all FCC and/or Federal Aviation Administration ("FAA") roles regarding Tower height and location. 7. LESSOR Covenants. LESSOR covenants that: a. LESSOR is seized of good and sufficient title and interest to the Leased Premises and has full authority to enter into and perform this Agreement. b. LESSOR shall cause all subsequent users of the Tower to coordinate with LESSEE prior to placing any equipment on the Tower to ensure that their frequencies and antenna locations will be compatible with LESSEE'S and to agree to a clause similar to that agreed to by LESSEE in Paragraph 6.a., above and promising to immediately eliminate harmful interference if said user's radio equipment should interfere with that of LESSEE. c. LESSEE wilt enjoy undisturbed possession of the Leased Premises as provided in Paragraph 18.a 8. Condemnation. If all or any part of the Leased Premises, or if all or any part of the LESSOR'S land underlying the CMRS facility or roadway to the Leased Premises is taken by eminent domain or other action by jurisdictions having the legal fight to take said lands, and if said taking in the sole discretion of LESSEE renders the Leased Premises unusable for its intended purpose, then LESSEE may terminate this Agreement at its option and rent shall be prorated appropriately by LESSOR so that LESSEE recovers rent it paid for any time period after the date of such taking. There shall be no further payment of rents except that which may have been due and payable at the time of said taking. If LESSEE does not terminate this Agreement, LESSOR shall reduce the rental fees on the Leased Premises by an amount proportionate to the extent Site #4299 to which the Leased Premises was reduced by the eminent domain or other legal action, said reduction to be mutually agreed upon by the parties. 9. Indemnification. a. LESSEE shall indemnify, hold harmless, and defend LESSOR against any claim of liability or loss incurred by LESSOR to the extent caused by LESSEE'S acts or omissions at the Leased Premises that: (i) are negligent or willful acts or are omissions arising in connection with the provision of CMRS at the Leased Premises, or (ii) constitute a violation of Environmental Regulations as defined in Paragraph 10.d. below. b. LESSOR shall indemnify, hold harmless, and defend LESSEE to the extent provided by applicable law in accordance with Paragraph 10.c. below. 10. Environmental Issues. a. LESSEE represents, warrants, and covenants to LESSOR that LESSEE shall at no time during the term of this Agreement use or permit the Leased Premises to be used in violation of any Environmental Regulations. LESSEE will not exercise any control over environmental conditions or any activities, other than those conducted by LESSEE under this Agreement, at or near the Leased Premises that involve the generation, storage, treatment, or disposal of any hazardous substance, material, chemical, or waste. LESSEE and LESSOR also agree that LESSEE'S use of the Leased Premises will not involve the subsurface, except for the placement of a foundation for LESSEE'S equipment and facilities. b. LESSOR represents and warrants to the best of its knowledge and belief that: (i) neither LESSOR, any present or previous tenant of the property on which the Tower is located (the "Property") nor any other third-party has released, used, generated, manufactured, stored or disposed of on or under the Leased Premises any hazardous substance, material, chemical or waste that is regulated by the Environmental Regulations; (ii) neither LESSOR, any present or previous tenant of the Property nor any other third-party has transported to or from the Property any flammable explosives, "hazardous waste," or any other "hazardous substance," as those terms are defined in applicable Environmental Regulations; (iii) there have been no orders, notices of violation, complaints or other similar communications of alleged or potential violations or failures to comply with applicable Environmental Regulations issued by a governmental agency regarding any acts or omissions upon or affecting the Property before the Effective Date of this Agreement; and (iv) except as disclosed by LESSOR to LESSEE and acknowledged by LESSEE, LESSOR is not aware of the presence on the Property of any asbestos, polychlorinated biphenyls (PCBs) or other known hazardous substances, material, chemicals or waste (as those terms axe defined under applicable Environmental Regulations), wells or underground storage tanks other than normal household and janitorial supplies, chemicals and consumer amounts of petroleum products. Site #4299 c. LESSOR, to the extent provided by applicable law, shall indemnify, hold harmless and defend, at LESSEE'S request, LESSEE from and against any and ail liability, loss, damage or expense (including attorney's fees, court costs and cleanup costs, if any) incurred by LESSEE in connection with any claim, demand or suit for damages, injunction or other relief to the extent caused by, arising out of or resulting from (i) any breach of LESSOR'S representations and warranties contained in this clause, (ii) the generation, storage, use, handling, discharge, release or disposal of ba?ardous substances, chemicals, materials or waste, as those terms are defined under applicable Environmental Regulations, at the Property, which occurred before the Effective Date of this Agreement or during the term of this Agreement other than those caused by the acts or omissions of LESSEE, (iii) LESSOR*S failure to provide all information, make all submissions and take ail actions required by Environmental Regulations, or (iv) any other negligent or willful act or omission of LESSOR (including any of its servants, agents, employees or contractors). d. For the purposes of this clause, the term "Environmental Regulations" shail mean any law, statute, regulation, order or nde now or hereafter promulgated by any Governmental Authority, having jurisdiction, whether local, state or federal, relating to air pollution, water pollution, noise control and/or transporting, storing, handling, discharge, disposal or recovery of on-site or off-site ha?~rdous substances or materials, as same may be amended f~om time to time, including without limitation the following: (i) the Clean Air Act (42 U.S.C. § 7401 et seq.); (ii) Marine Protection, Research and Sanctuaries Act (33 U.S.C. § 1401-1445); (iii) the Clean Water Act (33 U.S.C. § 1251 et seq.); (iv) Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984 (42 U.S.C. § 6901 et seq.); (v) Comprehensive Environmental Response Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. § 9601 et seq.); (vi) Toxic Substances Control Act (15 U.S.C. § 2601 et seq.) ; (vii) the Federal Insecticide, Fungicide and Rodenticide Act as amended (7 U.S.C. § 135 et seq.); (viii) the Safe Drinking Water Act (42 U.S.C. § 300 (f) et seq.); (ix) Occupational Heaith and Safety Act (29 U.S.C. § 651 et seq.); (x) the Hazardous Liquid Pipeline Safety Act (49 U.S.C. § 2001 et seq.); (xi) the Hazardous Materiais Transportation Act (49 U.S.C. § 1801 et seq.); (xii) the Noise Control Act of 1972 (42 U.S.C. § 4901 et seq.); (xiii) Emergency Planning and Community Right to Know Act (42 U.S.C. §§ 11001-11050); and (xiv) the National Environmental Policy Act (42 U.S.C. §§ 4321-4347). e. This Paragraph I0 shall survive the expiration or termination of this Agreement. 11. Insurance. During the term of this Agreement, LESSEE wiIl carry commerciai generai liability insurance with customary coverage and exclusions in the following amounts: Bodily Injury $1,000,000 for injury to any one person and $2,000,000 for all Site g4299 injuries sustained by more than one person in any one occurrence. Property Damage $100,000 for damage as a result of any one accident. LESSEE agrees to furnish LESSOR with certificates of insurance certifying that LESSEE has in force and effect the above specified insurance. LESSEE may elect to self-insure. In the event LESSEE elects to self-insure, for any part of the above, LESSEE agrees to satisfy the reasonable requirements of the LESSOR'S Risk Manager. LESSEE further agrees to cause said policies of insurance to reflect LESSOR as an additional insured, to the extent permitted by applicable law. 12. Taxes. LESSOR shall pay all real estate taxes, if any, or assessments on the real property, inclusive of the Leased Premises, and all personal property taxes, if any, levied against the Leased Premises and any improvements thereon before the same become delinquent. LESSEE shall pay all personal property taxes levied against its CMRS facilities and appurtenances located upon the Leased Premises before the same become delinquent. 13. Utilities. LESSEE shall have a separate power meter installed for its electric service and LESSEE agrees to pay any and all costs related to said electric service. 14. Quiet Title. LESSOR covenants that LESSEE, on paying the rem and performing the covenants by it herein made, shall and may peaceably and quietly have, hold and enjoy the Leased Premises under the terms and conditions specified in this Agreement. 15. Choice of Law. This Agreement and the performance thereof shall be governed, interpreted, construed and regulated by the laws of the State of Texas. Any litigation concerning this Agreement shall be conducted exclusively in Denton County, Texas and the parties hereby agree to the venue and personal jurisdiction of these courts. 16. Notices. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, postage prepaid, remm receipt requested, addressed as shown below (or to any other address that the party to be notified may have designed to the sender by like notice): LESSEE: Southwestern Bell Wireless, LLC Attn: Real Estate Manager, Site g4299 P.O. Box 797246 Dallas, Texas 75379 with a copy to: Southwestern Bell Wireless, LLC Attention: General Counsel, Site #4299 Site #4299 17330 Preston Road, Suite 100A Dallas, Texas 75252 LESSOR: City Manager City of Denton, Texas 215 E. McKinney Street Denton, Texas 76201 with a copy to: City Attorney City of Denton, Texas 215 E. McKinney Street Denton, Texas 76201 17. Subordination. At LESSOR'S option, this Agreement shall be subordinate to any mortgage by LESSOR that from time to time may encumber all or part of the Leased Premises of right-of-way provided; however, every such mortgage shall recognize the validity of this Agreement in the event of a foreclosure of LESSOR'S interest and also LESSEE'S right to remain in occupancy of and have access to the leased premises as long as LESSEE is not in default of this Agreement. LESSEE shall execute whatever instruments may reasonably be required to evidence this subordination clause. In the event the Leased Premises is encumbered by a mortgage, LESSOR immediately after this Agreement is exercised, will obtain and furnish to LESSEE, a non-disturbance instrument for each such mortgage in recordable form. If LESSOR fails to provide said non-disturbance instrument, LESSEE shall have the right to terminate this Agreement immediately without penalty upon written notice to LESSOR. 18. Non-Disturbance. a. Subject to the other terms of this Agreement, LESSOR covenants that LESSEE shall, and may peacefully have, hold and enjoy the Leased Premises for the term of this Agreement provided that LESSEE pays the rent payable to LESSOR under this Agreement and performs all of LESSEE'S covenants and agreements herein contained. LESSOR shalt take no action that will or could adversely affect LESSEE'S use of the Leased Premises. b. LESSOR acknowledges that the Leased Premises have little or no value to LESSEE if LESSEE cannot use the Leased Premises as fully contemplated by LESSEE, that the Leased Premises are unique, and that LESSEE has made or will make a large investment in the Leased Premises, and therefore, LESSOR agrees that LESSEE, in addition to the remedies set forth in Paragraph 22, shall be entitled to injunctive relief or other equitable relief to require LESSOR to comply with all provisions of this Agreement which may interfere in any way with LESSEE'S contemplated use of the Leased Premises, so that LESSEE may continue with such use of the Leased Premises as fully contemplated by LESSEE. Site #4299 c. Any sale or transfer or assignment by the LESSOR of all or part of the Leased Premises or its interest in and to this Lease Agreement, shall be under and subject to this Agreement and LESSEE'S rights hereunder, such that LESSEE'S rights hereunder shall not be disturbed. 19. Assignment. Upon written notification from LESSEE to LESSOR, this Agreement may be sold, assigned, subleased, or Ixansferred by LESSEE at any time, without the consent of LESSOR, to a subsidiary, partner or affiliate of LESSEE; or to a successor to the primary business of LESSEE, with the advance written notice of LESSOR, only to the extent that said successor is of equal or greater creditworthiness than LESSEE. Any other assignment of this Agreement shall require the advance written approval of LESSOR, such approval not to be unreasonably withheld. 20. SuccessorsI Assigns. This Agreement shall extend to and bind the heirs, executors, administrators, successors and assigns of the parties hereto. 21. Memorandum of Lease. For the purpose of providing constructive notice hereof, LESSOR and LESSEE hereby agree to execute a Memorandum of Lease Agreement, in recordable form and LESSEE may have the same recorded in the land records of Denton County, Texas. This Agreement shall not be recorded by either party. 22. Default[ Temination. a. If either party breaches a provision of this Agreement, the non-breaching party shall provide and deliver the other party written notice of the alleged breach. If the breaching party has not cured the breach within thirty (30) days of the receipt of such notice (the "Cure Period") or if the breach cannot be cured within the Cure Period, and the breaching party has not performed substantial work to cure the breach within the Cure Period, the non-breaching party may then give written notice of its intent to terminate this Agreement. Such termination shall become effective ten (10) days after the breaching party's receipt of the notice of intent to terminate letter; provided that the breaching party has not cured the breach within such additional ten (10) day period. b. If, at any time during the term of this Agreement, LESSEE determines, following discussion of the subject with LESSOR, in its reasonable discretion, that due to technological masons, including serious signal interference, the Leased Premises is not appropriate for providing CMRS, and a third disinterested expert party, to be selected jointly by LESSOR and LESSEE who examines the situation is in agreement, then LESSEE may terminate this Agreement on thirty (30) days notice to LESSOR. LESSEE shall also have the right to terminate this Agreement in accordance with Paragraphs 4.c., 5.b., and 8. 23. Maintenance. LESSOR shall be responsible and liable for the maintenance of LESSOR'S Tower in compliance with any and all applicable laws, Site g4299 statutes, rules and regulations, including but not limited to, those rules and regulations, promulgated by the FCC and FAA regarding painting, marking and lighting of LESSOR'S Tower. LESSOR shall allow LESSEE to place any sign or placard on the Leased Premises or on the CMRS facilities and appurtenances attached thereto as required by federal, state, or local law, at no additional expense. 24. No Representations. It is hereby mutually agreed and understood that this Agreement contains all agreements, promises and understandings between the LESSOR and LESSEE and that no verbal or oral agreements, promises or understandings shall or will be binding upon either the LESSOR or LESSEE in any dispute, controversy or proceeding at taw, and any addition to, variation or modification of this Agreement shall be void and ineffective unless in writing signed by the parties hereto. IN WITNESS WHEREOF, the parties hereto have set their hand and affixed their respective seals on the dates and year above written. "LESSOR" CITY OF DENTON, TEXAS A Texas Municipal Corporation Dated: By: MICHAEL A. CONDUFF City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: Site #4299 Dated: ATTEST: "LESSEE" SOUTHWESTERN BELL WIRELESS, LLC d/b/a Cingular Wireless, acting in its capacity as General Partner of the Dallas SMSA Limited Partnership By: By: APPROVED AS TO LEGAL FORM: By: Site#4299 ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § BEFORE ME, the undersigned authority, on this day personally appeared MICHAEL A. CONDUFF, City Manager of the City of Denton, Texas, a Texas Municipal Corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said City Council of the City of Denton, Texas and that he executed the same as the act of such municipal corporation for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the ., A.D. 2002. day of [L.S.] Notary Public in and for the State of Texas My Commission Expires: Site//4299 ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DALLAS § ~t 7- BEFDREe~x~e_~ ~_-e2ME'V the. undersiened~ authoritv.,F , on,~ this day personally, appeared ~ .°H'.~.emrgvn, ;4cg;z, na; bn~ctor of~--~,~o~l~westem Bell Wtreless, LLC d/b/a Cingular Wireless, a Delaware limited liability company as general parmer of the Dallas SMSA Limited Partnership, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the Dallas SMSA Limited Partnership, a Delaware Limited Partnership and that he executed the same as the act of such Limited Partnership for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of "~t~ , A.D. 2002. ~}~,~ ~'t q 1 Shirley EImore b ~ - *'~" [~'~"J State of TeXaS ~ ~'-~ff"~,-~d My Commission Expires } ",~,~o,~,,,,' Apr 3, 2004 ~ My Co~ission Expires: ~ ~ ~DV~ Notary Public ih and for the State of Texas EXHIBIT "A' Attached to and made a part of that certain Tower/Ground Lease Agreement dated ,2002, by and between the City of Denton, Texas, Lessor and Southwestern Bell Wireless LLC., dfo/a Cingular Wireless, Lessee. Legal Description McKenna Park Co~rmJntcation Facility BEING a 0.0791 Acre Tract of Land situated in the City of Denton, and being out of the ROBERT BEAUMONT SURVEY, Abstract No. Denton County, Texas, and being port of a called 18.0 acre tract of land described to the City of Denton by a warranty deed as recorded in Volume 558, Page 559 of the Deed Records of Denton County, Texas and being more particularly described as follows; COMMENCING the Southeast corner of said City of Denton tract of land now commonly known oe McKenna Park; THENCE North with the west right of way line of Thomas Rood for a distance of 459.78 feet to a corner; THENCE East departing said west right of way line for o distance of 169.72 feet to a metal corner for the PLACE OF BEGINNING; THENCE: North 89 degrees 08 minutes 53 seconds West for o distance of 98.47 feet to metal corner post for corner; THENCE North O0 degrees 51 minutes 27 seconds East for o distance of 35.00 feet for corner; THENCE South 89 degrees 08 minutes 53 seconds East for a distance of 98.47 feet for corner; THENCE South O0 degrees 51 minutes 27 seconds West for a distance of 55.00 feet to PLACE OF BEGINNING and CONTAINING 5446 square feet of land or 0.0791 acre of land. CELL SITE NAME: SCRIPTURE/THOMAS EXHIBIT "A" CENTER NUMBER: 4299 SWBW # CELL NO. Page 1 of 3 Note: Owner and SBW may, at SBW's option, replace this Exhibit with an exhibit setting forth the legal description of the property on which the Site is located and/or an as-built drawing depicting the Site. Southwestern Bell Wireless, LLC, d/b/a Cingular Wireless Site g4299 EXHIBIT "A" Attached to and made a part of that certain Tower/Ground Lease Agreemem dated , 2002, by and between the City of Denton, Texas, Lessor and Southwestem Bell Wireless LLC., d/b/a Cingular Wireless, Lessee. CELL SITE NAME: SCRIPTURE/THOMAS EXHIBIT "A" CENTER NUMBER: 4299 SWBW # CELL NO. Page 2 of 3 Note: Owner and SBW may, at SBW's option, replace this Exhibit with an exhibit setting forth the legal description of the property on which the Site is located and/or an as-built drawing depicting the Site, Southwestern Bell Wireless, LLC, d/b/a Cingular Wireless Site//4299 EXHIBIT "A' Attached to and made a part of that certain Tower/Ground Lease Agreement dated __ ,2002, by and between the City of Denton, Texas, Lessor and Southwestern Bell Wireless LLC., clPo/a Cingular Wireless, Lessee. CELL SITE NAME: SCRIPTURE/THOMAS EXHIBIT "A" CENTER NUMBER: 4299 SWBW # CELL NO.~ Page 3 of 3 Note: Owner and SBW may, at SBW' s option, replace th~s Exhibit with an exhibit ~etting forth the legal description of the property on which the Site is located and/or an as-built drawing depicting the Site. Southwestern Bell Wireless, LLC, dlb/a Cingular Wireless STATE OF TEXAS § COUNTY OFDENTON § MEMORANDUM OF LEASE AGREEMENT This Indenture, made this __ day of _, 2002, by and between the City of Denton, Texas, a Texas Municipal Corporation, herein after called LESSOR and Southwestern Bell Wireless, LLC d/b/a Cingular Wireless, in its capacity as general partner of the Dallas SMSA Limited Partnership, hereinafter called LESSEE, organized and existing under the laws of the State of Delaware, having its principal offices at 15660 Dallas Parkway, Suite 1300, Dallas, Texas 75248. LESSOR has agreed to let and hereby does let and demise to LESSEE and LESSEE has agreed to take and does hereby take from LESSOR a 18' x 22' portion of the following described real property lying and being and being situated at 500 Thomas Street, Denton, Denton County, Texas, on the McKenna Park Radio Tower, with space on the Tower at the 120 foot AGL for cabling and nine (9) antennas. The Legal Description from the Survey, if made, shall be attached and shall supersede the above legal description. Said 18' x 22' portion of the above- described real property is hereinafter referred to as the "Leased Premises". Approximate location of said Leased Premises within the above described real property is illustrated on Exhibit "A" attached hereto. TO HAVE AND TO HOLD the same for a Lease term of Fifteen (15) years, commencing on day of , 2002, subject to the terms and conditions more particularly set forth in that certain TOWER/GROUND LEASE AGREEMENT executed by the LESSOR and LESSEE referred to herein and bearing a date of even date herewith for the purposes of constructing, operating and maintaining commercial mobile radio services and all other activities related thereto. IN WITNESS WHEREOF, the parties hereto have executed this Indenture the day and year first hereinbelow written. LESSEE Southwestern Bell Wireless, LLC d/b/a Cingular Wireless, acting in its capacity as partner of The Dallas SMSA Limited Partnership general Date: By: PAUL ~Giv,T2ON q' ~4 ~ ~t, ~ Rc.~c.r~al Dirgctc. r 6£ R~al Estate Site//4299 Date: LESSOR: CITY OF DENTON, TEXAS A Texas Municipal Corporation By: MICHAEL A. CONDUFF City Manager Date: ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § BEFORE ME, the undersigned authority, on this day personally appeared Michael A. ConduiT, City Manager for the City of Denton, Texas, a municipal corporation, known to me to be the person whose name is subscribed to the foregoing instmment and acknowledged to me that the same was the act of the City Council of the City of Denton, Texas and that he executed the same as the act of such City Council for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of , A.D. 2002. [L.S.] Notary Public in and for the State of Texas My Commission Expires: Site ff4299 ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DALLAS § BEF~g~.m~....~.]3, the ~dersi~ ~~s ~y ~mo~ly appe~ed Pau~ ~~~-Director of~,~5~ffiwestem Bell Wkeless, LLC ~/a Cing~g Wkeless, a Delaw~ limited liabiti~ comply ~ generfl p~er of ~e D~I~ SMSA Limited P~ershp, ~om to me to be ~e pemon who~ nme is subscfi~d to ~e forego~g ins~ent ~d ~owledged to me ~at ~e ~e w~ ~e act of ~e Dfll~ SMSA Limited P~ershp, a Delawme Limited P~e~p ~d ~at he executed ~e ~e ~ ~e act of such Li~ted P~ershp for ~e p~ses md consi&mtion ~erein expmssed, ~d in ~e cap~i~ therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of 'TT~,cL , A.D. 2002. ff.~v's ~'~ o , Shirley Etm0re ~ ~--~ [~*o.l State of Texas ~ ~-~.',~.~$ My Commission Expires ~ ~-,,;~o~),,;,," April 3 2004 ~ Notary P(~blic in and for the State of Texas My Commission Expires: EXHIBIT "A" Attached to and made a part of that certain Memorandum of Lease Agreement dated _, 2002, by and between the City of Denton, Texas, LESSOR and Southwestern Bell Wireless LLC., d/b/a Cingutar Wireless, LESSEE. Legal Description McKenno Park Communlcotlon Facility BEING a 0.0791 Acre Tract of Lend situated in the City of Denton, and being out of the ROBERT BEAUdONT SURVEY, Abstract No. 51, Denton County, Texas, and being port of a called 18.0 acre tract of lend described to the City of Denton by a warranty deed os recorded in Volume 358, Page 559 of the Deed Records of Denton County, Texas end being more pcrtlculerly described as follows; COt4~ENCING the Southeast corner of said City of Denton tract of lend now corm~only known os McKenno Pork; THENCE North with the west right of way line of Themes Rood for a dlstonce of 459.78 feet to a corner; THENCE East deporting said west right of way line for a distance of 169.72 feet to a metal corner for the PLACE OF BEGINNING; THENCE North 89 degrees 08 minutes 33 seconds West for o distance of 98.47 feet to metal corner post for corner; THENCE North O0 degrees 51 minutes 27 seconds East for o distance of 55.00 feet for corner; THENCE South 89 degrees 08 minutes 35 seconds East for o distance of 98.47 feet for corner; THENCE South O0 degrees 51 minutes 27 seconds West for a distance of 55.00 feet to PLACE OF BEGINNING end CONTAINING 5446 square feet of lend or 0.0791 acre of land. CELL SITE NAME: SCRIPTURE/THOMAS EXHIBIT "A" CENTER NUMBER: 4299 SWBW #__ __ CELL NO.__ Page 1 of 3 Note: Owner and SkFBW may, at SI~BW's option, replace this Exhibit with an exhibit setting forth the legal description of the property on which the Site is located and/or an as-built drawing depicting the Site. Southwestern Bell Wireless, LLC, d/b/a Cingular Wireless. EXHIBIT "A' Attached to and made a part of that certain Memorandum of Lease Agreement dated ., 2002, by and between the City of Denton, Texas, LESSOR and Southwestern Bell Wireless LLC., dgo/a Cingular Wireless, LESSEE. ELEVATIQN CELL SITE NAME: SCRIPTURE/THOMAS EXHIBIT "A" CENTER NUMBER: 4299 SWBW # CELL NO. Page 2 of 3 Note: Owner and SWBW may, at SWBW's option, replace this Exhibit with an exhibit setting forth the legal description of the property on which the Site is located and/or an as-built drawing depicting the Site. Southwestern Bell Wireless, LLC, d/b/a Cingular Wireless. EXHIBIT "A" Attached to and made a part of that certain Memorandum of Lease Agreement dated ., 2002, by and between the City of Denton, Texas, LESSOR and Southwestern Bell Wireless LLC., d/b/a Cingular Wireless, LESSEE. CELL SITE NAME: SCRIPTURE/THOMAS EXHIBIT "A" CENTER NUMBER: 4299 SWBW # CELL NO. Page 3 of 3 Note: Owner and SkgBW may. at SWBtF's option, replace this Exhibit with an exhibit setting forth the legal description of the property on which the Site is located and/or an as-built drawing depicting the Site. Southwestern Bell Wireless, LLC, d/b/a Cingular Wireless 1 2 3 4 ES I~OARD T~,IEETING M[INDTES April l~ 2002 9:00 5 6 7 8 9 10 11 12 I3 i4 15 16 17 18 19 20 21 22 23 24 25 26 27 ~8 29 30 32 34 35 36 37 39 40 41 42 43 44 45 46 47 After detem>ining that a qt~OI'dm of tl~e Public Utilities Board of the Ci? of Denton, Texas was present, the Public Utilities ~Board convened into an Open Meeting on Mol~day, April I, 2002 at 9:00 a.m. in tI~e Se~,'ice Center Training Roerig, Ci? of Denton Se~,ice Cel~ter, 90I=A Texas Street, Denton, Texas~ :RESENI: Dick Nortol~, (]eorge Hopkins, Charldean New'ell, Dick Sn-~ith, Don White and Bill (~iheek EX OFFICIO ME~4IBERS Mike Conduff~ Ci? Manager }Ir)ward Ma~in, Assist~mt Ci%,,' Manager EXCE)SI(D: Jim Wilson ITl:., 41S FOR INDIVIDUAL CONSIDE]RAT]ION: 6¸) Consider approval o,f ;~ 17ower/Gr{mnd Lease agreement betwee~ Denton ~hnicipai E~ectric (DME) a~d Southwestern Bell Wireless LLC,, d/b/a Ci~gular W~reless,, Lessee, at the McKenna Park Tower. Ray \X/elis, ,Assistant iDirector of Operations, was available to ansv,'er q)~estions regarding this ite~n. Approvat[ of the Lease Agrect~nent will allow Cing~tJar Wire]ess to lease orr the Denton Municipal t)Silectric McKc~!~a Park tower tbr the installatio~ of a nine antenna an'ay, associated coaxial cables a~-~d ground space for a 396 square Got building. The lease v:ill create $12,331,20 in yea~l>:' revent~e, which w'il~ increase by 4~5: per year after 'tl~e :first year of the agreen:nent. "l'}~e tern:x of the lease is 15 years w'ith 5=year rcne~al options therea:[ier. [lopkins asked ii' DME had the right lo renominate the agreement in the event of problems wit}~ the tower. Walls inibrme,d him that the City of Denton I~as the fight to te]q-ninate the agreement, Board 5,kmber Don White moved to approve the Lease Agreement, with a seccmd fi'om Board 5~lemb,er Bill Cheek, The motion ~.'as appro~,ed aa~animot~sb' with a vote of 6-0. EXHIBIT Agenda 02-021 06/18/02 #15 AGENDA INFORMATION SHEET AGENDA DATE: June 18, 2002 DEPARTMENT: Fiscal and Municipal Services ACM: Kathy DuBose, Assistant City Manager, Fiscal and Municipal Services SUBJECT 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. BACKGROUND The Denco Area 9-1-1 District, created in 1987, is governed by a board of managers. The board is appointed by the county, participating cities and the Denton County Fire Chief's Association. Board members serve staggered two-year terms and are eligible for reappointment. The Emergency Telephone Number Act states: "the board shall manage, control and administer the district. The board may adopt rules for the operation of the district." On May 15, 2002 Denco Area 9-1-1 sent a letter requesting nominations to serve on the Board of Managers. This year, the term of Harlan Jefferson, City of Flower Mound, expires on September 30, 2002. Mr. Jefferson has expressed his desire to serve another term if appointed. The current Board of Managers is comprised of the following individuals: Board Member Mr. Harlan Jefferson, Chair Mayor Olive Stephens, Fice Chair Mr. A1 Brown, Secretary Jack Miller Chief Bruce Varner Mr. Melvin Willis Appointed By: Participating Cities Participating Cities Denton County Commissioners Court Denton County Commissioners Court Denton County Fire Chiefs Association GTE, Advisory ESTIMATED SCHEDULE OF PROJECT Nominations are due to Denco by July 15, 2002. On July 16, 2002, the district will send copies of nominations to each city for consideration, requesting the city to vote for one of the nominees. The Denco Board of Managers will count the votes from the responding cities. The candidate with the most votes will be the municipalities' representative to the Denco Area 9-1- 1 District Board of Managers for the two-year term beginning October 1, 2002. Agenda Information Sheet June 18, 2002 Page 2 PRIOR ACTION/REVIEW (Council, Boards, Commissions) Last year the City Council nominated Mayor Olive Stephens, Town of Shady Shores, for a two-year term, which expires September 30, 2003. FISCAL INFORMATION This resolution has no fiscal impact. Respectfully submitted: Kathy DuBose Assistant City Manager, Fiscal and Municipal Services S:\Our Docmments~esolurions\02~911 yore fbr member.doc RESOLUTION NO. A RESOLUTION VOTING FOR A MEMBER TO THE BOARD OF MANAGERS OF THE DENCO AREA 9-1-1 DISTRICT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the term of office of Harlan Jefferson, a member of the Board of Managers of the Denco 9-1-1 District, will expire on September 30, 2002; and WHEREAS, Section 772.306 of the Health and Safety Code (V.A.C.S.) provides that two voting members of the Board of Managers of an Emergency Communication District shall be appoimed jointly by participating municipalities located in whole or in part in the District; and WHEREAS, the City of Demon, Texas wishes to vote for a member to said Board; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS, HEREBY RESOLVES: SECTION 1. That the City of Demon, Texas hereby votes for Harlan Jefferson as a member to the Board of Managers of the Emergency Communication District of Denton County for a two year term to commence October 1, 2002. SECTION 2. That this resolution shall become effective imnediately upon its passage and approval. PASSED AND APPROVED this the day of ,2002. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULiNE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Agenda 02-021 06/18/02 #16 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET June 18, 2002 Materials Management Questions concerning this acquisition may be directed to Charles Fiedler 349-8948 Kathy DuBose, Fiscal and Municipal Services~~i~ SUBJECT An Ordinance authorizing the City Manager or his designee to execute a Professional Services Agreement (PSA) with Emcon/OWT, inc. for professional engineering services for Construction Quality Assurance (CQA) and Professional of Record (POR) services for Soil Liner Quality Control at the Denton Municipal Landfill as set forth in the contract; providing for the expenditure of funds therefore; and providing an effective date (PSA 2862 to Emcon/OWT, inc. in the amount of $117,564). PSA INFORMATION This Professional Services Agreement is for the services of a design professional to provide Construction Quality Assurance (CQA) and Professional of Record (POR) services for construction of an approximately 13 acre line to be constructed at the City of Denton's Landfill in Cells 2B and 2C. Management of the contractor and surveying services are not included in the basic scope of services and will be provided by City staff. This procurement utilized the following ranking factors: 10% Identification and understanding of the agency's requirements for this project 25% Firm's past performance and experience on projects of this magnitude and complexity 30% Firm's experience with specific issues - Construction Quality Assurance (CQA); Professional of Record (POR) in Conjunction with landfill cells 2B and 2C related to this project 30% Experience and qualifications of key personnel available for this project 5% Schedule presented for this service as defined in the scope of work Proposal Respondents: Trinity Engineering-Kleinfelder Emcon/OWT, Inc. TEAM Consultants Agenda Information Sheet June 18, 2002 Page 2 PSA INFORMATION (CONTINUED) The Team Members: Charles Fiedler, Director of Engineering David Salmon, Assistant Director of Engineering David Dugger, Landfill Manager PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) The Public Utility Board will consider approval of this Professional Services Agreement on June 17, 2002 and their recommendation will be provided to the Council. RECOMMENDATION it is recommended that this Professional Services Agreement (PSA) to Emcon/OWT, inc., be approved along with the contract document in the amount of $117,564.00. PRINCIPAL PLACE OF BUSINESS Emcon/OWT, Inc. Fort Worth, Texas STAFF COST ESTIMATE it was estimated that this service would be approximately $120,000.00. ESTIMATED SCHEDULE OF PROJECT It is anticipated that the Notice to Proceed will be issued on or about July 1, 2002. The services will follow the construction project for Landfill Cells Bid No. 2859 where the contractor will have 120 working days to complete construction. FISCAL INFORMATION This service will be funded from Solid Waste Bond funds 66000400.21130.1360. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT (PSA) WITH EMCON/OWT, INC. FOR PROFESSIONAL ENGINEERING SERVICES FOR CONSTRUCTION QUALITY ASSURANCE (CQA) AND PROFESSIONAL OF RECORD (POR) SERVICES FOR SOIL LINER QUALITY CONTROL AT THE DENTON MUNICIPAL LANDFILL AS SET FORTH iN THE CONTRACT; AND PROViDiNG AN EFFECTIVE DATE (PSA 2862 TO EMCON/OWT iN THE AMOUNT OF $117,564). THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: WHEREAS, The professional services provider (the "Provider) memioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, The fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, SECTION 1. That the City Manager is hereby authorized to emer imo a professional service contract with Emcon/OWT, inc. to provide professional engineering and related services for soil liner quality control at the Demon Municipal Landfill; a copy of which is attached hereto and incorporated by reference herein. SECTION 2. The City Manager is authorized to expend funds as required by the attached contract. SECTION 3. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ., 2002. EULiNE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 2-ORD - RFSP 2862 Construction Quality Assurance Attachment 1 PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER THIS AGREEMENT is made and entered into as of the 3..1.st day of May, 2002, by and between the City of Denton, Texas~ a Texas municipal corporation, with its principal office at 215 East McKirmey Street, Denton, Denton County, Texas 76201, hereinafter called "Owner" and EMCON/OWT. Inc. Firm, with its corporate office at 999 Remington Boulevard, Suite A, Bolingbrook, I1 60440-3556 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, (describe the Project in the space below) Provide Construction Quality Assurance (CQA) and Professional of Record (POR) services for construction of the approximately 13 acre liner to be constructed at the City of Dentoffs Landfill in Cells 2B and 2C. Management of the contractor and surveying services are not included in EMCON/OWT's basic scope of work but may be added as additional services. S:/pur/bidspec/Professional Services Agreement.doe Page 1 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 $ 117,564.00 inclusivc of Reimbursable Expenses as detailed in the Design Professional's proposal and cost estimate. 2.1.2 Progress paymems for Basic Services shall be paid in the following percentages of the total compensation for the Basic Services satisfactorily completed at the end of the following phases of the Project: ConstructionPhase 100% Progress payments will be made monthly based on actual time and materials in accordance with the attached project cost estimate. 2.2 ADDITIONAL SERVICES 2.2.1 Compensation for Additional Services is as follows: Professional of Record (P.E.) CQA Monitor CQA Engineer CADD Operator Clerical Staff $112.00per hour $ 48.00 per hour $75.00 per hour $56.00 per hour $42.00 per hour 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. S:/pur/bidspec/Professlonal Services Agreement.doc Page 2 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, noting that Sections 2.2 through 2.5 are not applicable to th e asreement. 2. The Design Professional's Proposal and Cost Estimate This Agreement is signed by the parties hereto effective as of the date first above written. CITY OF DENTON ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: MICHAEL A. CONDUFF CITY MANAGER WITNESS: BY: EMCOn, Inc.. _ g /9 Firm' s Officer/Representative S:/pur/bidspec/Professional Services Agreement.doc Page 3 CITY OF D~NTON GENERAL CONDITION8 TO AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES ARTICLE 1, ARCIirI'~CT OR ENGINEER'S R.~PoNsmr~ITi~ 1.1 Ti~ Architect or Engineer's services consist of those services for the Project (as defined in thc a/reement (the "A~eement") and proposal (the "Proposal") to which these Omeral Condiliom ~r~ at~hed) pedormed by thc A~tat~ct or B~ginmr (hereaa~ called ~ "l:~ign Professional'9 or l~ign Pro~sional's ~ploy~ and comull~nm ss enumerated in Articles 2 and 3 of these G-aneral Condiiions ss modified by the A.~'eement and Pro!~osal (the "Service~'5. 1.2 The De.sign Prof~sional will pedonn all Services as an independent contractor to the prevailint professional standsr& consisten: with the level of ~ and ~ ordinarily exercised by mcmbcm of the same profession ctm~tly practicing in th~ santo locality under similar conditions, in¢ludint reasonable, infom~ judgraents md prompt 6mety actions (the "Degree of Cam'% The Services shall be pedormed u expeditiously ss is comistent with the Degree of Care nece~ary for the orderly progress of the Project Upon request of the Owner, the Design Profe~ional shall submit for the Owner's appwval I schedule for the pcfforra~ee of the Servicss which may be adjusted ss the Project proceeds, and shall incl~e allovamcea for periods of tin~ required for the Owners review and for approval of subm/asions by authoriti~ having jurisdiction over tim Project. ~ limits emblished by this schedule md approwd by the Owner shall not, except for reasonable cause, be exceeded by the Design Pmfesdonal or Owner, and my adjumrmnm to ~ schedul~ ~hal! be rmmally acceptable to both parties. ARTICLE 2 SCOPE OF BASIC SERVICF_.~ 2.1 BASIC 5E~,VICF.~ DEFINED Thc D~ign Profco~ion0d'o Basle/l~.vloeo oon~i,~t of~ ~b~ ~ S~ 2.2 ~u~ 2.~ of~ ~ ~dit~ ~ hol~ ~t ~mfi~ n~ s~, ci~, ~ ~ ¢l~cal ~g ~ ~d my o~ ~g s~ ~ ~ p~u~ a ~1~ ~ ~ ~ of C~ ~, ~ d~ ~ ~d ~u~ ~ S~ 2.4. ~ B~ic S~cm ~y b~ ~ ~ ~ ~. 2.2.1 Th~ D~ign Professional, in consultation with the Owner, shall develop a writ~ program for the Project to sscertain Owner's needs and to e~ablish the r~luimr, mts for the Project 22.2 The Design Prof~icnal shall provide a prelinfinav/evaluation of the Owner's trogam, comlrucdon sch~lule and construction budget requiremmts, each in terms of the other, subject to the limitalions ~e~ forlh in Suhseclion ~2. I. 2.2.3 The D~ign Profeasional shall review with the Owner alt~aative approach=m to de, sign and conar~ciion of thc Project LL4 Based on t~e mutu~ly a/~eed-upon pro/ram, {chedule md coumiruclion budl~t requirements, tbe Ded/n Professional shall prepare, for approval by the Owuer, Schematic Design Docun~nts coasisdn~ of drawings and other documents i]hslrafiug tbe scale and relationship of Project com~nents. The Schemagc Desi~ shall 2.25 The D~ign Prof~asional shall submit to rlm Owner a preliminary d~ailed ~stimato of Comtru~ion Cost based on current srea, volume or otlzr unit oo~ md which indica~ the cost of esch caie~y of work involv=d in constru~iug the Project and e~ablishes an closed ~ir~ factor for the p~ of ~ f~m the c~ti~i~mcerosnt to the complelion of construction. 2.3 DF.~I(~ DEVI~OP~ PHA~E 2.3.1 Based en the approved Scher~ic Design Docum~ts and any adjustrrsmi~ authorized by the Ovmer in the proems, sclmdul~ or conslrucfion bud~, ~ Design Professional shall ~mre for almroval by the Owner, Desire D~a~l~t Docur~uts ¢onsi~in~ of drswin~s and otter docur~-nts to fix and dmum'oe lbe size md character of the Project as ~o architeciuml, sma-anal, r~chanical and eleclrical systems, nmerials and such other demems as may be aplxapriate, Which shall c~mply with all appIicab[e lav~, ~tatotes, ordirance~, c~des and r~lations. Notwithstanding Owner's approval of the documents, Design Prof~sional ~ ikat gte Documents and ~ccificafion{ will be sufficient and a&quat~ to fulfill ~e purposes of the Project. 1.3.1 Tl~ Design Frol~s~onal shall adv~e the Owner of any adjuslrn~ to the pretmm~.ry estirnat~ of Construction Cost m a further Detailed Statemant ~ deaCrlbed in Section 2.2.$. 2.4 CONSTRUCTION DOCUI~"I~ PHASE 2.4.2 The Design Profe~ional shall esaist the Own~ in the preparation of the neceasary biddina or procumu~t infonmtion, bidding or procumu~t forma, the Condi~ons of hhe conlract, and ~he form of Agr~n~t bctw~n th~ Owner and coniractor. 2,43 The D~i~n Profesmionat shall advise the Owner of any adiusirnenm to i)mvious I~l'urdumry esfirna~es of Consirucfiou Cost indioa~d by chants in r~lui~menis or ~neral market conditions. 2.4.4 The Design Professional mhall assist the Owner in com~ection with the Ov~efs r~ponsibility for fiIing do~urn~ts required for the ~proval o£ ~a~rm-a~tal authorifie~ havingjurisdiction over the Project 2.5 CONSTUCTION CONTRACT PROCUREMENT 2,5.1 The D~gn Pwf~ssional, following tbe OwnWs atrProval o£the Ccrairuct/on Docum~s and of the latest preliminary detailed esl/mate of Camtrucfion Cost, ~hall a~i~t th~ Ow,ncr in ~ a c. om~g~/on c~lr~t for th~ Project through my procumumt rr~thod that iz l~gally ~Fplic, xbl¢ lo tlm Proj~ k~cludia8 wifl~out Palp~ 1 C:\WINDOW~My Bfiefcase~OElqFA~AL CONDITIONS-ARCH1T~-BNGINBBR0$02.doc timitation, the competitive sealed bidding procass. Although the Owner will comider the advice of the l~i~u Prof~sional: the awol of the cor~tr~ction c~tract 2.5.2 If the c0nstru~tion coneact amount for the Pcojeet exceads lhe total constraction cost of the Project as set forth ia the approved D~ailed Start of Probable Consiruction Costs of the Pro~cct submitled by the I~sign Professional, then the D~ign Professional, at its sole cost a~d ~q~ease, will ~ the Construction the total construction cost set forth in the approwd Detailed Starcraft of Probable Construction Costa. CONSTRUCTION PHASE - ADMINISTRATION OF THE CONSTRUCTION CONTRACT 11.6.1 Th~ l~gn Professional's responst'Mlity to pro~4de Basic Services for the Constrt~ction Ph~¢ under ibis Agreement commenc~ with the award ofth~ Contract for Construction and t~am a~ the issuance to the Owner of the final C_artificate for Paym~t, unless extend~ tmd~r the ~rm of Subsection 8.3.2. 2.6.2 Th~ Design Professional shall provide dcMleg admiaislration of the Contra~t for Con~lruction as set forth below. For design profe~ionalss the admi~tion shall also be ia ae~ardance with AIA doc~t A201, (~neral Conditions of the Contract for Con$1mction, turret as of the dat~ of the Asr~mmnt, unless providg in tl~ Agr~rmant. For ~iaeer$ the adnfinislration shall also be in accordance with th~ St~dard Specification~ for Public Works Construction by the North Cantral Texas Council of Oovern~ts, o.u't~t as of the date of the A~rnent, tmless otherwise provided in the A$~nent. z.fi-~ Cul,.,w~titm pl~ dul,i.~ ~u~b~iLi.~ ~aO. lJn'~m.~i~..~ of au~b..~ o£th~ Draign Proll:aslonal Slmll not Be l~al~l~oa, modLfl~l or ~'nd~ wtl~tout agreern~t oftbe Owner and l~gn Prof~sional. 2.6/The Deiign Professiorad shall be a rapresen~tive of and shall advise and consult with the Owner (l) during construction, ~nd (2) atthe Ov~s direction from ~ to time during the correction, or worrsnty l~riod d~orib~d M ~he Co~ir~ct for Con~ciiort. ~ne De~ Pro~iorial shall haw auth~ty to ~t On b~hal~ of the Owner ordy to the ext~t provided in the .~:~amt and these Oeueral Conditions, maless otherwise modified by written ~.~.$ The Design Profesrional shall in~t the con$1ruction site at least two ~ a week, regardless of wh~dm' consiruction is in pro~s, to b~ame f~rmliar with the l~O~ess and quality of the v~rk completed and to de.mine if the w~k is beir~ peffmmed in a manner indicatin~ that the work when corn~lemt will be accordance with the Con~ract Documants. Design Professional shall provide Owner a wriRen ~ subsequent to each on-site visit. On tl~ basis of observations ~ Design Professional shall keep th~ Owner informed of the pro~ress and quality of the work, and slmll ex~rcise the Degree of Ca~e and diligence in disco~ring and promptly reporting to the 0muer any defects or d~fi¢iencies in tbe work of Con~mctor or my subeon~ractor$. The Design Professional cep?e~ants that I~ ~ foll~wD~gr~ o~'Car~ ~n ~,-erfora-~ ~c~ und~ ~h~ Ag~tfi=t T~ Di~,'~n P?0fess{or~l slull promptly 'COrr~t any' d~:tlv~ tl~igns 'o~ fumisl~ by th~ D~ign Professional at no cost to tbe Ownor. The Own~es approvaI, acc~ptmc~, use of or paymmt for all or my part of the D~ign Prof~mional's Servic~ I~m'eandgr or of the Proj~t its'AL~ ~ ia nO Way alter th~ Dr~ign Professional's obligations or the Ownees rights he~nder. 2.~.~ Tim Design Prof~sional shall not haw control over or charge of md shall not b~ mspor~'ble for construction rrm~, nzthods, t~chniqtm, ~tum~ or pmo~ur~, or for saf~W pr~auttorm and prograsm ia connection wl~ the wo~. Tlae Deign l:To~;~ional sllall not i~ r~ponm~le for ~e Contractor's acl:~lules or failure to carr~ oat the work in accordance with the Contract Docurrmats ~xc~t insofar as such ~lure may result from Deelgn Profe~ional'$ nogliSant acts or omis- siom. The Design Professional ab. all not haw control over or charge o~ a~ts or omissions of tho Contractor, Suboanlractom, or their ag~ts or ~mptoy~s, or of any other i~mors im'fon~g porfion~ ofth~ work. 2.~.? The Design Professional shall at all tirtm have access to th~ work wh~'wr it is in preparation or prograss. 2.g.$ Exert as may otherwi~ b, pm,tided ia tl~ Con~t Docuraents or wlma diroot cormmmicadom have been spooially aathoriz~, th~ Owner and Con~'actor .~bnll enmmunleate through the I~gn Profes~ionnl Cema'nun{cations byrnd with the Desisn Professio~'~ co~ultants simll be through tl~ Desisn Prc~s$i~. ~.6.~ Based on the Design Professional's observations at the site of the work and evaluation~ of the Contractces Applications for Paym~t, the Design Prof~innal shall t'~wiew and certify tbe amounts due the Contractor. 2.6.10 The D~rign ProMional's e.~rtification for payrrm~t shall cormitote a covAe~anmion to the Owner, bm on th~ De,sign Mc~sional's obs,'rations at tim site as provided in Subsection 2.6.5 and on thc data comprising ~.e Con~ractor's Application for Payment, that the work has progressed ~o the point indicated and that quality of the Work is in accordance with the Coniract Documents, The foregoing r~presentations are subject to minor deviations from the Coniract Documc~ cor- ~Y~able prior to coraplctio~ and to specific qualifications e0qrtessed by the Design Professional, The 2.v~ce ofa Cerlificate for Payrrmt shall Pozthor constitute a zepresentatlon that the Conuactor ts enticed to payrnmt in the smoum cer~fied, Howe.'r, the issuance ora Certilicate for Payraent shatl not ~e a ?~mtation that the Design Professional has (1) reviev~ construction means, rreth~, tectmiques, sequences or procedwes, or (2) ascertained how or for wire purpose the Contractor has xa~xl money previously paid on accotmt of the Conlract Sum 2.6.11 Tho Do$isn Profe~onal ~hall Mv¢ ~ho r~spona~illty md authority ~o r~ct work which do~ not conform to tt~ Co~icact Mats. Wh~u~m thc I~il~n Professional considers it necessary or advisable for in~lerr,,ntation of the intent of the Con,act I)oc~t$, th~ Design Poaf~$ional will haw a~Mty to r~quir~ additional inspection or testing of th~ w~rk in accordance with the provisions of the Contract Documents, whether or not such Work is fabrical~l, inaalled or compIcted. However, neither this authority of the Design Profc~ional nor a decision made in good faith either to exercise or not exercise such authority shall give rise to a duty or mspomlbillty of the Design Profes~ic, r, al tn ~he Ctmtraetnr, E,heontraetors. rrmt~isl s~I equipment p~-ppliem, their a~,xts or employee~ or other pereons performing portions of the work_ 2.~.12 The Design Professi~ml shall review and approve or take other appropriate aclion upon Contractor's submittals such as Shop Drawings, Product Data and Samples for the purpose of (1) d~g compliance with applicable laws, statutes, ordinances and codes; and (2) de~cizxlzing whether or not ff~e we{k, whan completed, will be in compliance with the requirements of the Conlract Documents. The Design Professional shall act with such reasonable promptoess to cause no delay in tM work or in the cormtruction of the Owner or of separat~ c~tractors, while allowing sufficient ~ in tM Design Professional's pmfesaioasl jud~-nent to permit adequate review. Review of such submittals is not conducted for the purpo~ of determining the accuracy and completeness of other details such as dinmmions and quantifies or for substantiating inslmctiorm for inCudlation or performance of equiptrmat or sya-mm designed by thc Contractor, all of which rema~ the msponstbtltr/of the Conwactor to ~ae ex-m~t required by the Contract Docornmts. The Demgn Professional's re,-i~ shall not con$1itute appm'ad of safety precautions or, unless othenvise specifically sated by the D~sign Professional, of construction mea~, methods, techniques, sequences or procedures. The Design Professional's approval of a specific item shall not indicate approval of an assembly of which the imnis a component. When professional certification of performance ~tic$ ofmateriaM, system~ or ~luipment is required by the Contact Documents, the Design Professional shall be entitled to rely upon such c~ification to establish that the materialo, 0y~m.:m or equipn~nt will mmet ~ pcrformanoo ceitmla rccluit-~ by thc Con, A-sot Docum~rats. Page 2 C:\WINDOWS~esktopktvfy Briefcase\OBNBRAL CONDH'ION$-A.P. CHITECT-BNGINEER0502.doc Z,6.13 Th~ D~1~l P~f~a~ioaal sl~ll p~p~ Cl~.a~'~ Ord~ ~1 C, on~h~tiofl Cl~&: Dh-~ti'v~a. w~tl~ suppu~ kk~S du~u~r, ieu mid d,,t~ if d~xmx~l a~ y by the D~i~ Professional as prowidezl in Subsections 3.1.1 and 3.3 3, for tm Own~s mppro',mI and ~x~ution in accordance with the Conira~t ~ts, and may authori~ minor changes in thc work no~ in~olvin~ an ~djt~ra~n~ in the Conl~a~ Sum or an ~xter~ion of the Contract Tirm which ar~ not in~msisl~m With th~ inter of thc Contra~ Do~urr~nts, 2.6.14 On behalf of the Owner, the Design Professional shall conduct inspections to de~ermine the da~es of Substantial Completion and Final Completion, and if reque.si~ by the Owner shall issue Certificate~ of Substantial and Final Completion. The Design Professional will receive and review wrlmm guarantees md rehted documents required by the Contrac~ for Construction to be assembled by the Coniractor and shall issue a final cerlificate for Pa)~ncnt upon compliance with the r~uiren'znts of the Contract Documents. 2,6.15 The Design Professional shall inmpret and provide recorr~aendafions on mat~s concerning perfotrmmce of the Owner and Conlractor under the requiren~ts of the Contract Docurr~ts on wr/ti~n request of either the Owner or Contragtor. The De,sign Profe~onal's response to such requests shall be made with reslonable promptness and within any time limim agr~d upon. 2.6.16 Interpretations and dec/dons of the Des/gn Profe~ional shall be consist~t with the intent of and reasonably inferable from the Contr~t Docurmmts and shall be in vaitingor in the form of drawings. Wh~ making suchin~tions and initial decisions, the Design Professional shall end~vor ~o secur~ faithfulpefformsnce by both Owner and Contractor. and sl~l not be liable for results or inte~pr~talions or decisions so rendered/n good faith in aeeordanoc with all the prov/~'~ of this Agr~n~ and in ~le ab~cncc ufncglll~'~. 2.6.17 The Design Professional shall render written decis/ons within a reasonable time on all ¢laim~, disputes or other mawrs in question between the Owner and Contractor relating to the execution or prosrass of the work as provided in the Contract Documents. 2.1.18 The Dasign Professional (1) shall render services under the A/reer~t in accordance with the Degsee of Car,:; (2) will r~imbursc the Owner for all dmmsas caused by the dffectiv¢ designs the Design Profcssional prepares; and (3) by aclmowled/inl payment by the Owner of any fees due, shall not be released from any rights the Owner may have under the Agreerr~nt or diminish any of the Design Professional's obligations theretmder, 2.6.19 The Design Prof~sionsl shall lXOvid~ the Owner with four ~ts of reproducible pfint~ showing all fignificant changes to the Co~truction Documents during the Conslruct/on Phase. ARTICLE 3 ADDniOiVAL 3.1,1 The serdce~ described in this Article 3 are not included in Bask Services un[es~ so ideniified in the A/r~-rl~t or Propoa~ and ~ shall be paid fix by the Owner as provided/n the Agreement, in addil/on I0 tile ¢orrlpelksa~:ion roi' B~i¢ ~ervicas. Ille servicas descried ullder 5~tions 5.2 and 3.4 shall o~y be provided if anthoriz¢cl or confumed in vaifing by the Owner, If service~ described under Contingent Additional Servicas/n Section 3.3 are required due ~o eircunmmnces beyond the Dasiga Professional's control, the Design Professional shall notify thc Owner in writing and shall not corm'renoc such additional survicas until it meeiv~ vait~ apl~Oal from the Owner to proceed. If tbe Owner indicates in wriiing that all or part of such Contingent Additional S~rvices are not requital, the Design Protmaional shall have no obligation in provide thoz¢ s~rices. Own~ will be rasporm'ble for compensating the Design Professional for Coniingent Additioniq Fro-vices only if they are not r~iuired due to the negligence or fault of Dosign Professional. 3.2 PROJECT RE]PRESENTATION BEYOND BASIC SERVICES 3.2.1 ff mom extensive r~pre, mntation at the sim than is described in Subsection 2,6.5 is required, the Design Pmfassional shall provide onc or mo~ Projecl Representatives to assist in c~mying out such additional on-~it¢ respons~ilitics. 3.2.2 Project R~l~sentalives shall be selected, em01oyed lind directed by the Design Professional. and the Design Professional shall be onral~asa~ therefor agreed by thc Owner and Design Professional. 3.3 CONTINGENT ADDITIONAL SERVICES 3.3.1 Malang material rew~ons m Drawings, SpcoA/catmns or other documents when Such. rev~on$ I. incor~is~nt with appmvah or im~ruaions pr~iously giwa by th~ Owner, including revisions made necessary by adjuslrcamts in the Owner's pro.am or Project budgei; 2. required by th~ ena~tm~t or rwision of ¢ode~, laws or regulations subsequent to the preparation of such documents, or 3. due to changm r~tuired as ar~It ofth~ Owacfs failur~ to r~d~ deaision in a timely mariner. 3.3.1 Providing services r~luir~d because of signifi~nt ehaages in the Project including, b~t not limited to, size, quality, complexity, or the 0wnees ghedul¢, ~ept for s~vie~ r~luired ~nder Subsection 2.5.2. 3.3.3 Prep~nng Drawings, Specifications and other doonramtation and supporting data, and trmviding other services in eora~tion with Chan~ Orders end Construction Change Dizectivas. 33A Providing consultation ooncernin$ replacement of work damaged by fire or other cauae during construction, and fumisMng sen4ees required in connection with the replacement of such work. 33-5 Providing services made necessary by the default oftbe Contractor, by major defects or deficiencies in the work of the Contractor, or by failure of perforrmnce of either the Owner or Contractor under fl~ Coniract for Com~ucfion, 3.3,6 Providing a~a-vle.~ in ~naluatln$ an ~t~nai'a~ numbcr of ctaim~ submi~lr.~l by ffic Contr~tot ,~r oth~ in uomu~tlou with thc v~rk. Page 3 C:\WllqDOW$~ktopkMy Bfiefcase~3t/l, lERAL CONDITIONS-ARCHIT~CT-B2qGINF_~R/)502,doc ~g ~ e~t ne~i~c~ of~e ~ ~i not li~t ~ ~i~ ~f~i~t'~ obli~fi~.~ u~d~ ~is ~ub~ecfi~ 3.3.9. 3.40~ON~ ~D~ON~ ~.4.S ~d~g ~!~ qu~fi~ s~in~ off,al, ~ui~t ~d ~b~. ~.4.10 ~g fiv~pt~, ~ ofm~ ~ ~q~ or ~uaim ~d d~led a~ of~ ~i~6~, B~ic ~. ~c~ b~ m ~-~ ~, ~ ~d o~ d~ ~ by ~ C~ ~ ~ ~i~ ~f~maI. ARTICLE 4 OWNER'S RESPONSIBILITIES 4.1 T~ Owner shall cousult with the Design Pmfe,,~ional re,~ardin$ requirements fix the l~oject, including (1) the Own~s objectives, (2) ~chcdulc and design constraints and criteri~ including ~e req~ts and relationships, fleadhility, ext~endability, special equipment, systems and site requirem~ts, as mare sp~i- ficalty described in Subsection 2.2.1. 4.:1 The Owner shall establish and update an overall bud,,et for the Project, including the Construction Cost, the Own~s other costs and reasonable contingmcies relami to ali of these costs. 4.3 If requested by the Design Professional, the Owner shall furnish evidence that financial arrang~znents have been made to fulfill the Owners obligatious under this .~6recn~t 4.4 The Owner shall designate a representative authorized to act on the Owners behalf with reject to the Project. The Owner or such authorized representat/ve shall render decisi~cs in a timely manner pertaining to documeat~ submitted by the Design Professioua! in order to avoid um'easonable delay in the orderly and sequential progress of~e Deign Pro/esaonal'$ service~. Page 4 C:\WINDOWSlDesktopEVly Bfief~ane\G~ CONDITIONS-AKCI-/1TEC'T-ENGINEER0502.doc 4~ Whe~ applicable, tl~ Owner shall furnish surveys de~c~bmg pllymlcal c~ac~es, le~l h~m~ ~ u~ ~ f~ ~e ~m Of~e ~j~t, ~d a ~ 4.6.1 ~eO~ s~ll ~sh ~e ~c~ ofo~ co~ul~ wh~ such s~c~ ~o~bly~qu~by~e sclc of~e~ject~d ~u~by~e ~ ARTICLE $ CONSTRUCTION COST 5.1 CONSTRUCTION COST DEFINED $,1.1 The ConsU-uctlon Cost shall be the total cost or estimated cost to the Owner of all elements oftbe Project designed or specified by the Design Professional. S.l.2 The Cons/a-action Cost shall include the co~t at ctua~ut rn/u~t rates of labor and materials furnished by the Owner and equipment designed, spec/fled, selected or specially provided for by the Desi/n profeasiouaI, plus a ressonabl~ allowance for the Contractors ov~hcad and profit h addition, a reasonable allowance for con- liltg~ies shall be included for rnarkct coudifious at ~ time ofbiddiug and for changes iu ~he work du~ng construction. 5,13 Construction Cos~ does not include the cornpcusafion 0fthe D~ign Professional and Design Professional's consultants, thc co~ts of the land, fights-of-way, fuumuinl~ u~ u~hc~ co~t~ which al~ thc ~capomib,qity oftt~ Ova~r ~ prodded in Y~-Iiclc 4. 5.2 RESPONSIBILITY FOR CONSTRUCIlON COST $.~.1 'c'v~lu.~tiorte o,f the O~ne, r'~ ~¥oj~et budget, puellm{nm"y ~tirnst~s of Conmi-a~etion ~ snc] d~t~il~d ~.mtirrmt~,_~ nf C. rmsmtcfinn ~.cr~t prepared by the [~sign Professional ~pu:sont the Design Profe~sional% best judgm~t as a design prof~esional familiar with the construction industry, It is recognized, however, that nei~cr thc Design Professional nor thc Or.or has control over thc cost of labor, materials or equipment' owr thc Contractors m0tizxim of delta-mining bid prices, or ove~ compelitive bidding or market conditions, Accordingly, th~ Design Professional cannot and does no~ warrant or r~rcsc~ that bids or cost proposalz will not vary from ~he Owners P:ojec~ bud~ or ~ any estimate of Con~-a~tion Cost or ~mluation pr~ared or agreed to by the Design Frofessional, 5.1.1 No fxed limit of Conslruction Cos~ shall b~ established az a condition of thr Ag~ernm£ by tho fumistdng, proposal or establishrn~t of a Project budg~ tmless such luted limit has been agreed upon iu writing and signed by the parties thereto. If such a fu~d limit haz becn es lablished, tho D~gn Pl~feasional ~ be permit~l to include con~lgcucies for design, biddiug and price escalation, to dct~w;,~¢ what matcrisls, cquipmgnt, cornpcramlt sys~us aud types of constmc61m arc to be included iu the Contract Docurmmts, ~o make reasouablo adluslmeu~s m t~ Scope of~e Project ~md to include in ~ ~onlracz Docurr~um al~ua~ t~idz to adjus~ Vae Coushuction Cost to the fixed limit. Fixed limits, Lf any, shall bc inorcascd in thc amouut of au increase in tl~ Contract Sum occurrin8 after execution of thc Contract for Construclion, ~.1~ ffthe P~octu'~u~t Pha~= ~ not conmaenced wittfiu 90 ctmym ~fle~ th~ Ded~ Prof~mmion,ml ~ubrni~m thc C~ru~fi~n Dc~urr~nta to thc Owner, m~y Projeot budge~ or luted limit of Construetlon Corn1 shall be adjured to reflect chans~s in the 8oaeral level of prices in the core,ruction/ndustry between the d~ of subm/ssinn of the Con~Iruction Documants to the Owuer aud the date ou which proposais m~e sought. 6.1 The Dra~gs, Syecifica~ous and oth~ documeuts pr~pmred by the Design l~femsional for th/s Project rare/n~ts of the Design Pix)femsional'm merv/ce and shall become the pro1~ of the Owner upon tenuinafion or corapletion of the A~t The l~ign Professional is eutitled to ~ copies of all such dccummts. Such docummts ~r~ in~euded only be al~licable to this Project, and Owu~'s ume of such docum~ts/n other ~ojeclm/hall be at Owner's sole risk and expeume, lu the event the Ovaler uses ~uy of the information or materiah developed pursuant to the Agreement iu another project or for other purposes than are spec/fled/u the AS~t, the Des/gn l~uf~sional is ~eleased from any and all liability rehfiut to thor use ha that project 6.~ Submi~ion ca- dis~n~ontion ofdocuman~ to meet official regnlatory ~UClviremeuts or for s/miler purposes in connection with the Project is uot to be ¢on~ed a~ publ/cation ra d~oga~on oIthe Desagn Pro~ssuonal's reserved ngi~ts. Page ~ C:\W]NDOWSU3esktopqVIy Briefcase'~OBNBRAL COND1TIONS-ARCHITECT-ENOINB~R0502.doc ARTICLE 7 TERMINATION, SUSPENSION OR ABANDONMENT 7.1 Tho Design Professional may terminate tl~ Agr~namt upon not le~$ than thirty days written notice should thc Owner fiil substantially to p~orm in accordance with the t~ms of tbe Agroxnent through no fault of the I~ign Prof¢.~ional, Owaer may terminate the Ail'cement or any phase thereof with or without cause upon thirty (BO) days prior wrtRira no,ice lo th~ Design Professional. All work and labor b~qu~ p~fura~d m~d;r th~ Asre,,om~t ~i-afll cca~c immcxliat~ly upon D~sn Profeooional'a ~o~ipt of ~uoh notice. Before the end of the thirty (30) day period, Design Professional shall invoice thc Owaer for all work it satisfacton]y performed prior to the re,Spt of such notice. No amoont shall be due for lost or anticipated profits. Ail plans, field surveys, and other data related to the Project shall becorr~ prop~-Dt of the Ovaer upon lmmination of the ~t and shall be promptly rl¢liv~red to thc Owner in a reasonably organizcxl form. Should Owner subsequvatly contract with a new De. sign Profi;t~ional for conlinualion 7.1 If thc Project is susp~ded by the Owner for mom than 30 corJZecutive day~, the Design Professional sMll be corn~at~d for services satisfactorily lX~fonr~ prior to notica of such sub,ca, sion. When thc Project is resumed, the De~/gn Professional's compa~zation si'all be equitably adjusted to provide for ¢xpemes.incm'r~ in theintermption 7.3 Thc ~t may be terminated blt thc Ovmcr upon not less ~ sewn days writl~n notice to th~ Design Professionai in thc ev~t that the Project is abandoned. If the Prolect is abandoned by the Owner for rno~ ttum 90 comecutiv* day~, thc Design Prof~sional or thc C)s~¢r may ten'rdnate the Agre~aant by giving written nol~ce. 7.4 Failure of the Ova~r to make payments to the De. sign Professional for work satisfactorily completed in accordance with thc Agreornent shall be considered substantial non- performance and came for ~md~ation. 73 If th~ Owns' fail~ to make paym~t to Deign Professional will~t thirst (~0) day~ of rec~ip~ of a ~u[tc~'~n~ for s~-r~iu=z pmp~ly ~ad ~atizf2~todly t~Yom~, th~ D~-isn Pmf~zional may, upon ~ven day~ written notice to th~ Owner, smpend Frrformance of s~'v/ces under the 7.6 1~ the event oftamination not the fault of the Deidgn Professional, th~ Do~ign Professional shall be compensated for serv/ces properly and satisfactoffiy pe~'onned prior to ARTICLE 8 PAYMENTS TO THE DESIGN PROFESSIONAL 8,1 DIRECT PEP. SONNEL EXPENSE 8.1.1 Dk~t P~rsormcl Expeme is defined as the d/r~t salah~ of thc Design Professional's porsonnel engaged o~ tho Project and the portion of the ~ost of ~ n~mdatory and customary contributions and l~¢fi~ r~lated tha~to, such as ~'aploTnent tsx~ and other statutory err~loyee bendiX, insumnca, sick leaw, holiday,, vacation~, p~om and simihr contn'outions and 8.2 REIMBURSABLE F--,XI~ENSF-.-S 8.2.1 l~qmburmble E.xpe~s are in addition to compensation for Basic and Addflional S~vic~s and include e~emes incurred by thc Desisn Professional Design Prof~sion~l's employe~ and consul~mts in the ~utereat of the Pro~ect, ss idmfif[ed iu thc following Cla~es. 8.Ll.1 Exp~.~ of ~.muportation in connection with thc Project; expenses in cormectlon with authorized ont. of-lown trawli long-dislance co~iaiimicafions; and fe~ paid for securing approval of suthoritie, having jurisdiction over the Pro, eot ~.1.1.2 F_2/pe~e Of repmducl/om (cxc~'p[ tho mproducli~a ~£ tl~; u;t~ ~f do~um~ml~ ~m~mced in 5ub~*~don 2.6.19), pozta~ ~ad lumdl~8 of Drawing, Sl~:iflcafior~ and oth~ do~ummt& $.L1.3 if author/zed in advance by the Ownor, ~me of overt/m, work requi~ng higher than regular rat~. 8.1.1.4 Expense ofrend~aSng~, modess and mo~k-ups requested by the Owner. 8.2.L~ ~ o£c~:m~ut~-aided design and drafl/ng equipment time when u~ed in conn~tion with th~ Project. 8.1.t.6 Other ~xl~r~ that 0.m ~oproved in adm in writing bythe Ovmer. 8.3 PAYMEN~ ON ACCOUNT OI* BASIC SERVICF~ 8.3.1 Payments for Basic Servic~ shall be made monthly and, whet, applicable, shall be in proportion to sermccs perfmmed witl~in each phase ofservlcc, on basis set forth in Section 2 of tbe ~t and the scbeduI~ of work 8.3.2 If and to thc cxteut that the lime iniliall¥ established in the Agreement is er. ceeded or extended through no fault of the I)esign Professional. compcnsation for any se'tvic~ rendered during the additional p~-iod of tirav ~hail 1~ uua~umd h~ th~ n~,m~a ~ forth in Section :~ o~ tl~ A~xr~nt. 8&3 When ¢omtxmation is lined on a percrntag~ of Comiruction Cost and any po~iom of th= Project ar~ deleted or oth~wi~e not com~ct~t, cxmpen~at/m for tho~ ps, ions of the Project shall be payable to th~ ~,l~nt serv/ces a~o pa'formed on those portions, in acoxdanc¢ with ~ ,oh~iul¢ a,t forth in S~/on 2 of thc A~-o~n~t ba~l on (1) th~ lower bona ~ge bid or (2) i.fno ruth bid or propolld is ~eeived, th* rao, t ree~nt preliminary ~tirnal~ of C. tmsh~._ctlon Coat or det~dled ~dmate of ConsWaction Cost for such pcrtiom oftbe Project 8.4 PAYMENTS ON ACCOUNT OF ADDI~ONAL SERVICES 8.4.1 Piyrnenls on accourit of ~ Design Pmf~sional's Additional Servic~ and for Rdmbursabl¢ Ex'pens~ shall be made monthly within Bi) days a~r presentation to the Owner of the l~ign Professional's statem~t of s~vic~ reader~d or ~:penses incurred. 8.5 PAYMENTS WITHI;ffiLD No deductions shall be made from thc Design Professional's compensation on account of penalty, liquidated clamag~ or other surv.~ withheld from payments to con,actors, or on account of tbe cost of changes in th~ work o~er ~an lhos¢ t~r wiaica the Design l'ro~esswrai ts respor~-01¢. Pag~ 6 C:\WINDOWS~)e,ktopkMy Briv-fcaze\Olilq~RAL CONDITIONS-ARCHITECr-BNOINEER0$02.doc $.6 DF, SIGN PR,OFF_~IONAL'$ ACCOUNTING R~CORD$ I~sign Professional sh~l~ tmke ava~able to ~mer or Own~s anmonz~ ~a~m~lw r~Is ~£ Reimbursable ~ ~ud ext~nses p~giting ~o Addilioual S~vic~ md services perforrr~ on tbe b~sis of a raultiple of Direct Personnel Expense for inspection and copying during reguhr bus/ness hours for ~ ye~ at~ the dam of the fit-al C~ificate of Paym~t, or until any litigation rchi~:l to h~ Pro~ect is firisl, whichever ~t~ is lat~. ARTICLE 9 9.I The Design Professional shall ind~-mnify and save and hold han'al~s the Owner a~d its officers, agents, md employees ~om and against any and all liabiliv, claims, demands, damagc~, 1~, ~ad ~Xl~Oa~c~, includins, but not li~ted ~ cou~ co~ ~d v~able li~tiun, d~ f~ b~ily ~d p~o~l ~ju~, fl~ md pmp~ d~ge, resulting ~om ~e ne~ig~t ac~ ~ ~ssi~ of ~e D~i~ Pmf~d~al ~ i~ ~, sh~holflers, ag~, or ~loye~ in ~e p~e of the A~t. ~.~ No~$ h~ s~ll be ~ed ~ erea~, s llabili~ to ~y ~s~ who is not a p~ ~ the A~e~n~ ~d no~g h~ein sMil ~ive ~y of ~e p~' def~a~, bo~ at ~w ~ equi~, ~ ~y el~ ea~e of a~fi~, ~ h~gafion filed by ~y~e not ~ p~ to ~e ~e~t, including ~e dd~e of govm~l i~iW, which def~ ~ h~by ~ly i~ ~y hc~s~ W do budne~ in ~e S~te of Tex~ by ~e S~ hsu~ee C~sii~ or at l~t ~ A- ~ above; 10,1 C~ive ~ ~ili~ ~s~ce ~ bodily ~ju~ li~ of not 1~ ~ $1,000,~0 f~ each ~e~ee ~d not l~s ~ $1,0~,~ in ~e a~p~, ~d ~ ~ d~ li~ of not less ~ $100,~0 ~or ~c~ oee~ce ~d not lea ~ $190,000 ~ ~e ag~e~te. 1~.1 lu~bfl~ Liab~i~ ~u~ce ~t b~ly ~j~ lifi~ of not l~s ~ $500,000 f~ each p~ ~t uot l~s ~n $500,000 for ~eh aecid~ ~d ~ ~p~ ~e li~ of not 1~ ~ $100,000 for ~eh ~eid~t. 10.3 W~'s Co~safi~ ~ce ~ aec~d~e ~ s~ ~ui~, md ~loy~' ~abili~ ~eid~t ~e[ud~t ~upafi~al dis~e. 1°~4 ~;f~io~ ~ab/hW ~u~oe ~ ~ of not le~s ~ $1,000,000 ~uuM 0f the e~ufion of ~e A~ ~e ~l ~abili~ ~d ku~bile ~abili~ ~ee ~lici~ ~1 ~ ~e ~ ~ ~ ~fi~ ~, ~e W~' C~ss~ ~liay s~ll ~ a ~ of su~fi~ in ~ of ~e 0~, ~d ~ch 9olicy sh~ ~ ~out ~ (30) ~' prior ~ notice ~ ~ ~d ~i~ ~f~al. ~ such e~t, e~ ~ e~cel~fi~, ~ish ~ ~ ~ub~m~ ~ea~ ofinsu~ce ~e~ng ~e requir~ of ~ ~ele 10. ARTICLE 11 ML~CELLANEOUS PROVISIONS 11.1 The Agreement shall be gnverued by the laws of ~ $1ato of T~xas. V~uu~ of ~y suit ~ T~. 11.2 ~ ~ ~d ~i~ ~f~, ~vely, b~d ~el~, ~ p~, success, ~i~ md le~l ~v~ ~ ~ ~ ~r~t ~out ~ ~ ~t of ~e ~. ~t ~ e~u~ ~ ~, ~e ~ C~difi~ ~d ~e o~ a~ ~d ~ly ~sib~ ~ ~ so ~ ~ ~ ~ ~fid~, Ho~, should ~e pw~i~ of ~ese d~u~ be M c~ict so ~t ~ ~ not ~ ~o~bly ~, 1, Thc executed Agreement 2. AUachm~ts refer~nceA in 8~ction 3 of the Agr~raent oti~r tl~ the Propo.~l 3. These C~eral Pro~ision~ 4. Thc Proposal 11,4 Nothing contain~ in the Agrmm, nt shall create a contractual reiationShip with or a cause of action in favor of a third party against either th~ Own~ or Design 11.$ Ul;~n rcc~p~ of prior wrlttea ~,ppcoval of Own~rj the Dt~isn Prof~elonal eh~ kave the right to include rel:¢~ ~ml~ on.¢ ogthe g~;isn of the Pmjeat, including photographs of thc exterior and interior, among the Design Professional's promotional and profcasional mamiais, Thc Design Professional's materials shall not include the Owner's co~dential or prowietary infonmtim if the Owner has previously advi~d tl~ Design Professional in wriliag of the specific information considered by thc Owner to be confi- dential or proprietary. The Owner shall provide professional credit for the Design t'rofe~ional on the construction sign and in file 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, subcontracto~, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be de~aed to be an assumption of such reapons~ility by the Owner for any defect in the de$ii;a or other work prepared by the D~sign Professior~l, its errrployecs, subcontractors, agars, and consultants. Page 7 C:\WlNDOWSkDesktop~My Bricfcase\G]iRqERA.L CONDITIONS-AI~CH1TBCT-E~NOItVSBR0502.doc MI nofi~ sh~l be d~d ~ff~c~w ~ ~c~pt by ~e p~ ~ whom such nofi¢~ is ~vm, ~ ~M ~e~ O) days ~ 11.8 ~ ~Y ~m~sion of ~¢ A~t is found ~ dee~d by a cou~ of eo~¢~t jufisdie~on ~ b~ in.lid ~ ~or¢~le, it shah b~ eonsid~d s~bl~ ~m 11.10 h ~g ~e S~ r~ui~d h~und~, ~c Desi~ ~ofessio~l sMll not dispute a~inst ~y p~ on the b~is ofra~, col~, rehgon, sex, 11,II ~e capions of~e A~ent ~c for ~fi~ pu~os~ only, ~d shall not in ~y way ~t ~e suba~fivo ~ or c~di~S Pa~ 8 C:\WINDOWS~DesktophMy Briefoa$c\Ol~RqE~ CONDITION$-ARCHITECT-~NOII~E/~0502.do¢ to ProWde Construction Quality Assurance ProfessiOnal of Record City of Denton Landfill RFP NO, 2862 Prepared ~r: May 2002 Prepared by: EMCONIOV~, inc. A Sha~~ O~p ~ 5701 East Loop 820 Sous , F'o~ Wo~, Texas , 76119 , (817)47~82~ EMCON/O~, I~ 57~1 Eas~ Loop 82~ F~ Wo~h, TX 76~1~7'061 Tel; 8~ 7~478~8254 Fax; 8~7/478~74 May 28, 2002 Mr, Charles W. FiedleL P.~ Di:~.tor of Engineering Ci~, of ~ntoa 601 E. Hickory, Sui~ B ~nt~,, TX 76205 ~o~s~ for Profession~ Semites Ce~.s 2B and 2C Coas~c~oa Quaq~. ~s~rance City of Denton ~df'dl ~ar Mn t::ied'~: EMCON/O%qT, Inc, (EMCON) is pleased to presem this pmpos~ to provMe construction qual:[ty assurance (CQA) ~ices for ~e: Ci~ of Deaton~ T~ pr~ h~ been h~ ~co~e wi~ the City of ~atoas R~nest f~ Pro~$~ No. 2862. We b:dag the followiag ex~dmce ~d v~ue lo your ptoj~t: · EMCON pmv~de~ CQA ~ices d~ng Cella 2A ~d 2g lin~ con~ct~on~ p~pmed ~e coast~c~ion plms for ~is pr,~ect. T~ pmpos~ pmfe~s~o,~ record (POR)for ibis ~oj~t. Da;'id R. Fde!s, was ~so tke r~a for the p:mvi~s cell c~a~clion~ · EMCON w~t! pm, vide m ex.he.ed CQA mm [hat has worked toge~et on n:nme~ous CQA projects over the p~t We ~;m. EMCON'$ p.o~;ed POR bm; ~ified o~.r I2 :mllioa squ~ feet of liner ~d A~ iadicamd a~ t~ mm~hed propose. EMCON is ~ghly qualified to provide ~e City of ~mon w~th p~of~ssio~l ~d costmffectNc cons~ction quality a~sumnce semites. ~ have q:~fims or co~e:aU, pJ~e cml u~ at (817) 4784254. Sincere!y, EMCON/OWT INC, Da~4d R_ Faels~ p~E. Com~mct.im~ ~ali~ A~su~ce Manager R, Welbom Client Program Manager CONTENTS 3 STA~I~NT OF INTEREST PROPOSAL ORG~IZATION 2. i Name a~}fl Address of Respondem 2,2 Dam an~ ~'~ ~Mi~c~ons 2.3 F'i~ ~ofile 2A ~p'tion of ~t Te~ Z5 (Abbmvimed) Res~ of ~y Per,ariel RELEVA~ EXPERIENCE AN~I) CAPABILITIES 3,2 3A 3,6 Relev~t Liner CQA Experience SLER~GLER Submit~s ~n Past 2 Years Approacg Team ~za'tion aaa Communieatmn ~jeast Sched~e l~ect Deliverables 1-1 2-1 2-1 2-1 2~2 2-4 34 3-1 34 3-5 3-7 i STATEMENT OF iNTEREST EMCON/OWT, !~. ~MCON)appraises the o~aan~ty ~o submit this pm~al, m the City of Denton (City) PmfessionaI of City of ~n ~ndfilL Our conOauing inmmst ia wet. ag ~r '~ City of ~toa ~d for ~hc City of ~nmn · Ceil gA CQA, SI~R, mud GLER Cells 2B & 2C ~l~don P!~s and Bid ~uments Celt I ParciM Final C ]1~ ~ ~ ~s ~ Bid ~umenB 'The s_~ar~ proj~t manages aacl engineers ~m workeg on the ~'e ~jec~ will the POR f~ ~he ~vi~ ~sm~ioa of Ce~l 2A (Mr. D~vid Fhds~ P.E~) ~d ~ d~i~ en~:n~r for Cells 2B mad 2C (Mr. C~ies ~ung, P~E,), In a~itimn, t~ le~ CQA Monitor, Mr. l~ ~n~a. h~ worked together with Mr~ Fries on numem~ com~si~ iin~ prelim over ~e ~t five yea~, All pmj~t in the time frme defi~ by ~ntoa project Mr, ~ngoda will complete Da.~e to the :relatively unifoxm gex~metry ~f Cells 2B ~nd 2C, and since t~ C~ty's neazly~ corrtple~ed excav~oa to the desi,ga ba~ ~es ~a ~ ~a~ EMCON d~ n°t ~tic~p~ siga~ficanl is&u~ from the consm~cfioa, ltowever~ the consmcfi~a of the a~derdt~n and adjacent c~l]/iedas may require additional field a~nfioa ~d communications with desi~ ~gin~r, Given our famihmty wkh the de4gn ~f t~ uad,~rain and tie-~S ~he past Ce~Is i ~ 2~, ~MCON is uniquely' qua~ifi~a to have ~ the ~sign CQA en~nee~ we&tug toget~r in the ~m~ office m addmqs e~Moasly any issues during construction. %is results ia time and e~t sav~gs through avoid~e de~ kern ~ desi~ eagin.er ~d ~e CQA 2 PROPOSAL ORGANI~T~ON 2.1 NAME AND ADDRESS OF RESPONDENT ~c~ is ~he officid incoq~rated ~arae for EMCON~ EMCON is a subsidiary of o~ p~em com~ay~ ~ Shaw Group. ~c,, based in Bat.on Rouge~ ~si~a~ ~ eag~ne~ng ~mup ia the F~ Wo~ ~ wi!! ~.~m ~he work tbr thi~ project Coast inflation is ~ follows: EMCON/OWT; hc~ (Foe Wor~ Office) -Mr. David Fdcl~, P.E.. 5701 East: L,oop 820 Stmth. Fort Womb. Texas 76119. ~ne: (817) 478.82~, F~: (817) 47g-8874. Testing will ~rf~ Se geo~c~nic~ la~mory testing fo~ r~e CQA ~rtion of t~ proj~[ Coast hfformatio~ is as follows: ~ 'Tcs~g - Mr. Mark Laakford, 5701 Emt Loop 820 South, Fo~ WOrth, Te~ 76119~ P~,: (817) 563-577!, Fax: (254)823~6636. {ML Testing ~,,~ t~ f'onner geotecMical l~omtory for ~e ~CON Fort Worth offi~. }dr. Lank~ a former ~CON emplo>~e, pumha~ i! in 200I $ 2.2 DATA AND GENERAL QUALIFICATIONS EM'CON ~gan m a solid w~te consulting firm in 197I, By pro¥iding ~uperior cliem mrvice, we expanded with e~h pa~sing .year 'm ~ome a n~ioaal fi~ ~viding ~n~ring;, co~t~ction ~d o~rati:oas ang mmnmnanc~ ~ices for ~ di:ve~e ctiente!e in both ~be ~b!ic and private smtom.~ The EMCON-Fort worth office, formerly B~-SbffietL ~RCC (m~ ~ecessor agencies) ~d se~ing t~ solid waste iadus~y ia Tex~ for over 17 ~, Our engineering ~up ha~ at,o ~velo~ designs f~ doze~s of landfills m Text. ~ese de~i~s ~e itmlu~d ~mi:tqevel ~si~s as Well as co,~mtcfi~ plans mhd $~iticmions. Our work in ~ ph~ of Imdfi!{ engin~dng One!uding d:udng cogitation) comfibmes m t~ effici~cy and coasW~cmbility of ,o~ ~signs. ~r use of cU~at C~DD t~haology enhances the efficiency md accuray of our The exle. nsive s~f of~ peoent company, ~ SMw Group, ~c., complements EMCON's ~ec~ie~ staff of over ~ ~0ple. acmsa mom than 80 with over 20,~ emp!oyees. With these av~table re,outcrop,, we provide mr ct~stomem ~/omqr, ir~ q~iiy mrvices in a wide maw of disciplines. ~ office i:n Fo~ Work Texas, hms ~en key Ioc~ioa for oar professionals in solid wasie services, For' over 30 ~ar~ we have served our cu~tornem ia solid waste permitting, design, ~agemeni~ For our clic~ts, ~s ex~rie~ce ~ansi~es to extmo~ia~ value mdu~s ~e coiti of eo%vlgng ~ilh reg~la!ions while ~kJeving a high level environmem~ ~fforman~, ~r in-,de~h t~h~ca~ msou~s allow ~ m address our clients~ needs ~ ~g~fi~.t iavings~ n~ only ~ p'~ec~ ~sk~ but ~m in iife<'yeie c~ts. Thmgh o~ vertically integra~ approach, EMCON Movides clienm wi~ a rrmnu of se~'ice~. We provide turnkey solutions from ~ject ~nception through consmfion ~d o~rafion and ~nmn~ce (~M)~ We am ~vi~ iMividuM pmjeei com~nen~ ¢.g.. ~ibility stunt, es, ~s~s, ~!~ion. O&M, monho~)~ Whether we providing ~e iadivid~ co'm~nts or a complete ime~t~ appm~h, ~ client 2:.3 FIRM PROFIt: 2,3,~ YE~S ~TH RRM OR AGE OF FIRM ~e EMCOWs Fort Wo~ office h~ been working wi~h ~he ~,CC (a~d predecessor agencies) ~ sewing the solid wa~ iad~try ia Texa for over 17 ye~s. ~ offce h~ ~ ~ovi~g CQA for com~iffe E~rs for solid was.m clients in Tex~ ,3n~ 19~. For key pmj~t ~m~ne[. Mr. David F~els, P.E. h~ b~n w,[~ EMCONf°r over t2 yeas, and ~. ~les ~ung, P.E. h~n wi~ ~CON for five ~m. 2.3,2 ~PE: OF :FIRM EMCON/OWT, ktc~ is the ,official incorpc~raled name for EMCON~ EMCON is a subsidiary of the ;Shaw ~up~ lac,, base6 m Baton Rouge, I~ouis]ana~ FIRM HI~ORY EMCOI'.L foanded in 197!, purchased B~ker-Shi~ert,, lac., approxima~ly t0 y~s ago. The ~ Groap 5~mhased ~CON in 1~, ~d ~e cu~nt pa~.n~ company, '~e Shaw Group, Inc, pumh~ the ~ Group in April 2~2. ~m F0~ Wo~h offi~ has a hismu of m~e than 17 ~, of ~tid w~ ~'ices to the munici~ ~d, private ~or~ Plebe refer m S~ion 2,,2 - Dna and General Qu~ificafions for ~di[[on~ inflation. 2,3,4 FIRM SiZE (P~FESSIONALS BY ~:'SCIPLtNE) Thc EMCON-Fort Wrmh office h~: a s~ of I~ and c~s ~ir qua]ity/~it~ng e~gm~, planner~ O&M aaff, and ~r~anel~ ~ ~tion, EMCON enjoys nationwide sup~ of ~essional staff, ~ng wRh thousmn~ of proi~ssion~, amff from our parent company. 2.3,5 AREAS OF SPEClAL~ / CONCEh~RA~ON grt3uadwat~ ~d l~dfil[ gu ~'ices to ff, e solid waste industry. 2.3.6 ~LEPHONE NUMBER ~D F~ NUMBER ~o~_ 8 i 71478.8254. Fax 817/478-8874~ 2.4 DESCRIPTION OF PROJE~ TEAM 2,4.1 SrNG~ ~1~ OF CONTACT The point of c~>ntac.~ for ~he te~ will ~ M~. David R, Ffiels~ P.E., the ~e~ director ~d CQA Pmfes,~n~ ofR~o~ (POR)~ 2.42 KEY PERS~NEL ~oj~t Manager and POR - David Fdets, P.E. ~ad CQA Monitor - !as~0~ Longofia So/is Testing - Mark Lankfotd (ML Testing) C-ec~ynthetics Testing - R~e~ Ahmed, EMCON C~syathe~cs ~rmory =A~s}s~t POR * Omrles I.~ung, P:E CQA Enginee~ - Cannon Hc~u, ~&T. 2,4~30RG~IZA~N CMART A propose, organization chart for the project: mare is pre~ at ~e end of Sectioa 2. 2,5 (ABBREVIATED) RESUMES OF= KEY PERSONNEL In order to comply with th~ 20-page proposal formal requirement by the Cky, abbreviated ~esu~s of the key project personnel am pre~ented. ~li msu~s of the key ~ oiher project pememnel ~ ~'¢aiiable upon Da,i~ ~ Friels, P.E.. Overall CQA respot~bi~iy e~ POR Mr. Ffiels is the Cons~ction ~aity Assur~ce Group M~a~r 30 years ex~dence in t~ ~a~ o:f ~mc~n. ic~ and mamas ensnaring. He joined B&er..Shiflea, hc~ (EMCON)i~ 1989 ~ Coas~mi~ manana CQA ~d ~p~d ~aificaion repons f~ over 12 ~l~ion and cover s~tems anc~ 19~. lie is ex~.eaced in prepmtioa Soils md Liner Qmlity Contm~ PJ~$ and ~ic~ mt~hmenm for Solid ~r~r Ffiet~ ~ismd ia ~e ~ep~ion of Denton's S~CP, ~lt 2B a~d 2C Cons~im~, Ptan~ and S~ific~ona, and w~ Coas~cdoa M~er~R for c~stmciiog. ~'. Fde!$' ge~<hnical engulfing ~eace i~!udes pi. an:ming and di~fing fieM exp:lormion and sampling, l~rato~ tesfiag~ p~p~ation of engulfing re~s for ~ w~ v~ie~y of maicip~, ~m~miai, a~d ~dastd~ ~oj~s=, He is a !iceased ~fc.sio~ cn~r ~ Tex~ and ~ver~ o~r sates ~d has a B~lm md M~e~ ~gr~ in Civi~m~haic~ ~gin~ag from O~a~a S~te. Urdvm~ J~n ~ngor~. ~ad CQA M~imr ;~nsible for gte ~A a~vl~ Mi !.~ngofi.a h~ gmvi~. ~astmctio2 moiling, testing. ~d d~u~ntalion for ~dfill construction projects involving mil md g~syat~tk !i~rs :for m~ than seven yeari. He ~oined EMCON in 1998 ~ ~ field CQA moMmn Pti.or m working for EMCON; h. w~ed for Poly-F~ex, ~., ~ a qu~ky ~mrmce offi~r ~g ~ in~llati~ sa~dnmnden~ His ex~fienee over the p~t seven ye,am ~ invob'ed Q~QC moai~,rMg dang i~lafioa of mi!!ms of sqa~e ~ei of tier ~r~s ~ country. His responsibilities have also ~cluded mam'd~: m~age.men~ oxrenigh~ of ~rsonneL ~ well as quali~y co~'ol testing in the la~ramu. H~a ex~.de~e ia CQA ~so indud~ l~d~]~ gas extr~io~ systat, ~se~'.ati.~ of b~kfi!i pla,~meat, Mark Lan~o~. Res~ible for S~b Labo~lory Test,~ for this gmat Mn ~kf~M A~ over 13 ye~s o~ geo~ehnical m~riMs !a~atory tesling EMCON% !~dfill liner ~jecu, He ~$ a N1CET Level D/Emgi~fing T~hnki~. Mn L~kford founded ~ Testing in 2~1 wean ~ purcbas~ EMCON's labormo~,. Prior to ~hal fi~ he kad b~n employ~ by ~CON (B~et~SMflett) over 13 ~sbeed &hn~l, Director ~ EMCON's Geo~fl~ La~ra~. R~ponsible for ge~ynthetixs ~ng for ~e proje~ Mr~ A,~ed hR been Di~t~ of F~MCON's ge;esynthet~cs laboratory and is a ~uate engin~r with over five years of m~tefi~s engir~dng ~d testing extricate, T~ la'b~moU ~s accmdit~ by AASH~ ~d GAZ-~P (thc ~osynthefc ~R~on Lq;s~u~ -~mtory At--dilation ~m)~ Char~ ~u~ P.E,. A~!s~nt ~R, responsible of ~r rev~w ~ engining for the project ' solid w~le ex~ence that iavolve~ more ~ban 2~ solid waste a~d l~d~il ~oj%~. He is engineer of ~ord for ~e ~nton Ceil 2,B m~d 2C ~nst~ioa pt:aris ~d ~ificafions ~d has ~a ~R f~r ~ver~ l~dfil~ cell ~d fma~ cover coast~c:~on p~eets in the MM 'West. ~ m.~iori~y of ~s, ~x~d~, h~ ~e:a ia !~fill engining and solid waste mmagew~nt ~nctions. A variety of so!i~ w~te work '~ff~ inclu~s site ev~a6ons tbr solid w'~¢ f~5IiOes, engineering &si~ a~ ~>,~, l~dffil gas ~Sign a~ c.as~ction, comt~on qu~ity ~sur~e of mli~ w~ i~ili~es, ~d evaluation engin~r in Tex~ and sevc~ oiMr slates md ~ a Bach:eio~ and M~'tem deg~ in C~v~~e~ Eagin~fi~g f~ h~ Uaivmity of Tex~ ~ ~n H~ry, ~.T. -~'~ible for ~mb~g ar~ ~.~ ~~ ~m SM~ joining ~MCON in 1~8 Mr. He~y k~ worked in tbg ~, of solid waste ~naitdgg, ~esi~+ and co~on qu~ity ~su~ He ~ovided some of the site ins~tiot~ during com~m, cdon of ~nma'~s Cci! 2A ~d 2B !~ner and ~sis/~ pmpa~don of ~e liner m~. He has prepared ~rmi~s and ~t develo,~d c:o~u~c~,ioa plm~s, s~cifications, bid 8~umenls. and ~sismd ~n construction and c0nsi~ion ac'~vifies for mmqy pmj~ts in Text. His ex.epee h~ b~n f~amd on the preparation of ~iis and co~ciion plans and s~cificadons for indasuiat ~d mumcipal so~id, waste sites, He provides engin~ring s~p~.~ for a v~ieiy of projects including landfill g~ ~dces~ lan,dill[ desi~, e~nst~ction ~ssumace and qu~ity cornel, and sto~ wa~ m~menL Mr, }{enD* ~m pmvMes &sign sup~ for ~hate eoli~i:oa ~d ~overy sysmms, pemi~ eonslmction det~ls, md o~er ~[~ of l~ndfi!l desigm He ~ worked ~xteasively ~ City of ArlM~on [andf~} pro~<u, Mr. He~D' h~ a B<helor's dele in Civet Enginee~ng from the University T:e~as ~: ArlM~an with emp~mis ~n Engineered, Project Organization Cha Denton Landfill Cells 2B & 2C Construction CQA Project Team Ci~ of Denton ILan~l! Mana~ David [~gger Data Compil=~on an~ Renew C=nnon He~y-, E~T Pro~ssiona! of Reco~'d D~'~d F~l~s~ PE ~siStant Pro~ssional of Reco~d EMCON ~eosynthefi~ ML T~tl[ng Ma~ ~r~kford Lead C~ Monito~ Ja~=~ L=~rie CH Monl~rs (As ~equ~re~) ICO~OWT, iN'C, 3 RELEVANT EXPERIENCE AND CAPABIL~ES 3A RELEVANT LINER CQA ~PERIENCE EMCON I~ been providing CQA for composi~ laadfiil liners a~ct covers in Texas since ~994 from i~ Fo~ W~h o~c~ N~; Frie[~, EMCON's POR~ h~ ~:n g~ap m~a~r for over two y:~ ~d during ~at ti~ M w~ responsible for tM CQA <~ivifies ~>nd<~ f~m EMCON-F~ Wo~h. He h~ b~n insensible for preparation of ~1 of t~ ce~i~cafion ~om since Jaau~ 2~, and h~ p~p~ ce~ificafioa m~s for over 12 m~l~oa ~ f~t of liner ~d cov~ duhag l~ p~t ei~t ~m. ~l~e ~ie C. QA ~m ~ pmpose~ inetu~s Mr. David Friet.s, P.E. (Pt.)R), M~r.. ia, mn ~ngmSa (CQA :monitor), md t~ laboratories. Mr~ Longofia w~ first emplo>~v3 by EMCON ia 1~ mqd has been the CQA m~nimr ~ a numbe~ o~ projects ~a, Mr.~ Fricls w~ PeR. Mr~ Mark ~kfo~, ~ Te~t~g~ hag provided soil testing for alt of tke CQA pmj<ts mmaaged from Fort WO~ EMCON's ~osym~ties labomto~ has provided ge~s2mthetics resting for all of EMCON's projects for the past two years~ 3.2 SLE~JGLER SUBMITTALS IN PAST 2 YEARS City ~ ~,ton ~ti (complet~ i~ May ~I} Composim liner for Ce:Il 2A is approx~ately I3 ~s ~d consists of a h~rostatie pressure, mtief System, eomp~cte~ clay li~. a geomembmne liner, and a ie~chme coil<~ioa sy.stem~ The liner w~s ¢onstmc'cea~ in two ~i~s, :requiring t~o SLER,~ and GLER,~ EMCON w~ !:be prime profession! and provided complete CQA ~rvicms (site inspection~ ~R, ~d $~LER) as well .as ceil des~iga. The CQA mare for p~oject includ~ ~e p~pc~se<t ~eam excep~ Tommy Thompson w~s the CQA monitor~ Cl~n.t referee: David Dagger, Landfill Manager, (~)349-7512. C&T [~ll, ~algo County (comp~t~,4 s~tem, g~synthetic clay liner (GCL), ~omembrane liner, ~d a ]~acham col~emion EMCON wm the prime pmfess]o,naI and pmvid~ cvmplete CQA services (site ias~cfiom ~R, ~d ce~fic~i~on mgic:) ~ we!! as cell design. The CQA roam for ~e C&T p~t is, tk~ sa~m ~ that is Pm~sed for Denton Landfill Cells 2B aa~ 2C; Cti~nt Reference: Santiago Morado, L~ffll Manager; (956) 383-7398, City~ Beaamont Lag*ill (completed in Febr~y 2002) Composi*a [inet approximately !9 acres consisti~ of a hydrostatic pressure r¢iief system. a cvmpacmd day liner, a geomemhrane ii~r, and a leachae collect, ion sysmm. The liner was com~cm~ in two se.t~oas, ~ui~ng two SLERs aad G~P~, ~MCON prepare~ the coas~c¢ion documents ~d wm ~e prime pwfessioa~. ~d pmvi~d management of CQA ~tb~it]es, ~e ,~sis~ CQA mo~kot~ ~d prep~d ~o S~ and GLERs~ T&N La:~ohes ptovi~ t~ CQA En~n~r ~ite imperious ~d le~ CQA m~itor as ~el] ~ some: of the l~orato~' testing through: a sub c~ntr~t. ~e CQA mare for ~i~ proj~t imlu~d Fr~els &q PO~ M1. Tesfing~ and ~CON% geosynth~tic Ia~rato~ (as pro.ed f~ ~nton's project) Addm W~ims was EMCON's assist~I CQA moaimn ~iem refetenm: John Lab~e, Cle~ Community Depar~n~ Director, ('409) ~2-1483., Maloy L-andfl~, Hunt C~nty (comple~ C~mp~]te !~ncr approxim~y 5 geomembrme ~iner. and a le~ collection system, EMCON was the pri~ professional and provided complete CQA se~ices (si!e in,pection, POR, and ) ~ wel.~ as ceil de~i~ The CQA ~am for th~s ~ect [nc}u~ ¢~ pm~s~ ~mm exit Tommy ~om~n was the CQA moai~~. ~ien~ ,Reference:: L~tmy Caffey. ~ner~! Manager. (903) 886-783Z lr~rkey Cre~k ~dffil, Johnson County (completed in Sep~m~r 2001) Composite liner ~pproximately 9 acres consisting of a oompacted c~ay liner, a geomembran~ liner. ~rt ~ ~eachate co,~ection syslem, EMCON ~v~ the prime pmfessiona~ an~ provided complete CQA servic~ (site ins~ctiom POR. an~ SL~'GL~)~ well ~ cell ~s~ T~ CQA ~emn ~or t~ project ~clud~ the sine team pm~sed f~r ~nto~'s m'ec~ was tt~e CQA mon~tm~ P ¢ ~ncept Tmmy ~omp~on Client referent, e: Mat~ ~nry, Er~viromeat~ M~,r, (972) 43642!T Core.site liner approvingly 17 ~res consist~g of a hydms~dc pressure relief system. compacted clay liner a g~,mem~rane liner,, EMCON was the prime professional and provided complete CQA servers (site ins~tion, ~R, and SLEP./GLER) as ~eil ~ ceil design. ~e CQA ~am for p~ject in~d~ t~ s~ mere pro~s~ for Demon's in ~ditio:n to, th~ norrc~ liner CQA services. EMC~ON pmvi&d coorclinafion with TNRCC and d~amen~tion of liner and covet repMm that were reqaimd due to a fi~ in Client reference: Matt Hen~, Environmental M~ager, (972)436.-4217, B&B La~l, ~s ~ L~r County' (coml~ted in Norther ~) Compos~e liner ft3r Cell IE approximately 4A ~re, s con,sting e,£a ¢ompaet~ clay liner, a g~membt~e l~ner. ~d a Ie~hate col!ection system. EMCON w~s t~ pri~ ~fes8io~l ~d provided complete CQA ~ervices (~ite ins~ction, PeR, and SLE~R) as well ~ cell ~sign. T~e CQA roam for this p~oject includ~ the sine ~am propo~d for ~ntoa's ~t~je~t exe~ Tc~y T'hom~n wa~s the CQA monitor. Client ~fe:m~: WMter Hunt, Divi~kmal Eng~neefi~ Mana~r, (972)842.5710. BFI Abibme R~[ ~'~dfilk J~ Co~ty (~plet~ ia Aa~t ~) Aa alternate core. site liner ap~xlma~e]y 8 ~res consisting of a com~'~ subgr~e, a gcomcmbrane iiner, and a te~hate coiiec~oa system. EMCON w~ ~he ~ professional ,and provided complete CQA ~rviees (site iasc.etlon, ~R, and ce~fica~ion mpo~). T~ CQA te~ t~r this p~Ject melu~ ~e pm~s~ team pins aa ~t~fion~ CQA monitor. Cliem reference: Matt Heary~ Environmental Manager, (972) 4364217 Turkey Creek ~dfia, Johnmn C~nty (comple~ M June Co:mt0osite !i~r for Sector 3A approximately 9~:8: acres coasis6ng of a compac~ clay liar, a gememb~ae ]k~, ~ a l~ha~ collec6oa system. EMCON was the; prime VofeSSi~>nal and provided compiem CQA services (site ias~tioa, POR~ and SIEGLER) as well a,s ceil d.esigm ~ CQA team f~ this pr0)ect inc!u~d ~he same tern pm~sed £or ~nton'a project e,xmpt Tmnmy Tl~ompson was t~ CQA EMCON' ',,as [he prime prefessim~al and pre-:v.ided eo:mp~e:[e CqA a,c~ices (sk;e i~spec~ie4L POR~ az~d~ ce~t;i[Sca~i~m mpe~} as well as cel~ desig~, T~he C. QA k~am J~or th:iSs CI:i e:nl ReI):::rm:~¢e:; SanBago Morado, !aadfi i~ Manager~, (95;61~ 383~7398,, iBMCON ;~,as die p:dme pro~ess~iona[ sad prey:ideal ¢:omple[e CQA s,erqi~es (sits iBs~:cdon~ POR, a:nd ~cerSfica~ioo report ms well as cell de,sige The CQA team for 8~is pro,eot is d~e same ~,ea:m d:~at is propgsed :t:or De~:o~"s p:rcLjeC:L ~ ~:~;cl<~ry~ Ger~eral Mana~;!:er~ (80021 3,3 APPROACH The S;LER sad GLER rep,rm:s wl, i[ be ssbmit~ed to the TNRCC i~ a dme¥ :maturer wiS,[ C;LER¢ s,u;bmit:ted by EM(EON ia ¢:he pa~at ~,,u'o years ;mceixed n~o ¢om~cms t:rom ~he witis ~he ~quiremcrris ol-ihe permil, SEQuP, da,~a, a.$,a: CHALL~NGBS 3.4 TEA~' 0 R!GANtZATI ON AN D COrM ~ NiC,ATION RESP,ONS~B~LmES AN9 COMMUNaC.AT~ON h'~specdiom He will coo~'din~al}e direci:ly ~:t.,itt~ ~he ~aboca/torie~ and tl~e con~racloHs re(juiced. He field and I Tha projeci CO, A c. nphkecr ,,',-,~ra:,.'~g =n(tcr me dkccfi, oa c,r I,/~ PQR wili prc,jec~ will ~e quaii~:y review, :3,5; ROJECT SCHEDMLE c,.xcava~,~oB ar~d. q.~b~rade ~rej, ara[~o~ on June 24 B'MCON's CQA, co'mmcr~cc~ un ~hc ~oil limx', ~d a draft of d,x~ ~ped will be provided the S~.ER arad GLER. N: ueces.~,,~s, ~or me C~D'% ~chcdul;e,. 3,6 PROJECT DE, LWERABLES EX, iCON w:ili prcp~tre a SIER and d'~e GLER Tl:~e,,~c reports ~vi:l.l bc p~.cpa:l,ed for doc~,~me'a~ l[:;~e cea~[nmc[~o~ o:[ d',,c so~ Ira,ct The report wi;; pcesst~:re ~Jp.i~ft ca]calatiens. A ,l~',pcrt d:ru~i: x:v~H he s,cat ~o, i;.l~e C:i~'y 'Rx' :review A GLER wi;]] bc prepared m aceerdasce 'a,:ith d:~c ;FCqUH¢¢,I:f~¢;B[S ©i' TNRCC to d;ecum~r~ tix~ k~sml.h~on of ~:Ni' 8con~ml:,~a.m:, B~c.r and, k;~,d:'m~c ~NiAT,~ON OF DEL,!VE~:A~L~ES ~.e p~Bared ~.y [h,c ?OR ,a~ '~axed [,o, ¢~ desir,ed ~ a~'tm' ;l:x:; POR ~;~r assistam POR has rc:~qe~ed ~hc ~s~,ll~:;~ T~oically, ibc rcault~ will be a~ta~che, d ~o t~e pr~'Scct =pdales, klo,wz:vcr, if Frob~ema a~~, cng~n, eer. EM'C©N 24 Agenda 02-021 06/18/02 #17 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET June 18, 2002 Materials Management Questions concerning this acquisition may be directed to Diana Ortiz 349-8224 Kathy DuBose, Fiscal and Municipal Services~~i~ SUBJECT An Ordinance of the City of DeNon, Texas authorizing the City Manager to execme a Professional Services Agreemem with Linebarger, Goggan, Blair, Pena & Sampson, LLP and Gregory & Conner, P.C. for professional services related to collection services for delinquem taxes on behalf of the City of DeNon; and providing for an effective date (RFSP 2847 Delinquent Tax Attorney awarded to Linebarger, Goggan, Blair, Pena & Sampson, LLP and Gregory & Conner, P.C.). RFSP INFORMATION Sealed proposals for collection of delinquem taxes for the City of DeNon were requested. The proposals were evaluated to determine who provided demonstrated competence, knowledge, and qualifications for a fair and reasonable price. The term is for three years with up to two additional one-year extensions. The recommendation of Linebarger, Goggan, Blair, Pena & Sampson, LLP and Gregory & Conner, P.C. is based upon a selection ranking including the following: Performance Goal 40% History of Expertise 20% Delinquem Collection Services 20% Denton Office or Functional Equivalent 10% Collection Technology 10% The evaluation team consisted off Anna Mosqueda, Director of Management and Budget Diana Ortiz, Director of Fiscal Operations LeeAnn Bunselmeyer, Treasury and Tax Manager Carolene Folse, Tax Analyst RECOMMENDATION We recommend this contract be awarded to Linebarger, Goggan, Blair, Pena & Sampson, LLP and Gregory & Conner, P.C. in the percentage amounts established by State law. Agenda Information Sheet Page 2 June 18, 2002 PRINCIPAL PLACE OF BUSINESS Linebarger, Goggan, Blair, Pena, Sampson, LLP and Gregory & Conner, P.C. Denton, TX ESTIMATED SCHEDULE OF PROJECT This contractual agreement will become effective on July 1, 2002 and be in place through June 30, 2005, with the option to extend through June 30, 2007. FISCAL INFORMATION This is basically a self-funding agreement. The service provider is only paid based upon the success of their collection. The agreement has no expenditure budget impact. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent 1-AIS-RFSP 2847 Delinquent Tax Attorney ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH L1NEBARGER, GOGGAN, BLAIR, PE~A & SAMPSON, LLP AND GREGORY & CONNER P.C. FOR PROFESSIONAL SERVICES RELATED TO COLLECTION SERVICES FOR DELINQUENT TAXES ON BEHALF OF THE CITY OF DENTON;AND PROVIDING FOR AN EFFECTIVE DATE. (RFP 2847). WHEREAS, the City Council deems that it is in the public interest to engage Linebarger, Goggan, Blair, Pefia & Sampson, LLP and Gregory & Conner, P.C., to provide professional services pertaining to the collection of delinquent taxes on behalf of the City of Denton; and WHEREAS, the City staff has solicited, received and evaluated proposals according to the criteria set forth in the request; 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 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: That the City Manager is hereby authorized to execute a Professional Services Agreement with Linebarger, Goggan, Blair, Pefia &Sampson, LLP and Gregory & Conner, P.C.; in substantially the form of the Professional Services Agreement attached hereto and incorporated herewith by reference. SECTION 2: That the award of this Agreement by the City is on the basis of the demonstrated competence, knowledge, and qualifications of these firms and the demonstrated ability of these firms to perform the services needed by the City for a fair and reasonable price. SECTION 3: That the expenditure of funds as provided in the attached Professional Services Agreement is hereby authorized. SECTION 4: That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: S:\Our Documents\Ordina2ces\02\Linebaxger delinquent tax RFP 2847.doc CONTRACT FOR THE COLLECTION OF DELINQUENT PROPERTY TAXES THE STATE OF TEXAS COUNTY OF DENTON THIS CONTRACT is made and entered into by and between the City of Denton, 215 E. McKinney, Denton, Texas 76201 ("CITY"), acting herein by and through its governing body, and the Law Firm of Linebarger, Goggan, Blair, Pefia, & Sampson, LLP, Oil and Gas Bldg. Suite. 1414, 309 W. 7th Street, Fort Worth, Texas 76102-5113 and the Law Firm of Gregory & Conner, P.C., 303 N. Carroll Boulevard, Suite 100, Denton, Texas. ( Hereinafter referred to as the "FIRM"). · 1. EMPLOYMENT OF FIRM CITY agrees to employ and does hereby employ FIRM, as an independent contractor, and FIRM hereby agrees to enforce by suit or otherwise the collection of all delinquent taxes, penalty and interest owing to CITY. Current year taxes which become delinquent within the period of this Contract shall become subject to the terms of the Contract upon.the following conditions and FIShM shall perform the following services: A. Taxes that become delinquent during the term of this Contract, that are not delinquent for any prior years, become subject to the terms of this Contract on July 1st of the year in which they become delinquent. B. Taxes that become delinquent during the term of this Contract on property that is delinquent for prior years shall become subject to its terms on the first day of delinquency as defined by the Texas Property Tax Code. C. FIShM shall begin collecting current year personal property taxes on March 1st of the year in which they become delinquent. CITY shall not owe FIRM a fee on the current year delinquent personal property taxes collected between March 1st and June 30th unless attorney's fees are collected pursuant to Section 33.48 of the Texas Property Tax Code. D. FlthM shall perform all those services set forth in CITY's Request for Proposals ("RFP") dated April 25, 2002 and FIRM's response to the RFP dated May 13, 2002 which are attached hereto and made a part hereof respectively as Exhibits "A" and "B" as if written word for word herein, as well as all other services set forth in the Contract. E. If there is any conflict between the terms of this Contract and conditions of the attached exhibits, this Contract will control over the terms and conditions of the attached exhibits. FIRM hereby agrees to perform the services herein with diligence and in accordance with the highest professional standards customarily obtained for such services in the State of Texas. Linebarger Contract page 1 2 PROVISION OF INFORMATION CITY agrees to furnish all necessary delinquent tax information to FIRiV[ on ail property within the boundaries of CITY. 3 INVESTIGATION AND ASSISTANCE FIRM agrees to conduct investigations as to the address of each taxpayer and the location of the property where such information may be incorrect on the delinquent tax record. FIRM shall bring to the attention of the appropriate tax official of CITY any errors, double assessments, discrepancies, or inaccuracies in the information provided on the delinquent tax record detected by FIRM. FIRM further agrees to provide CITY with any advice or assistance in connection with updating the tax roils. CITY shall make available to FIKM information which CITY may have with regard to the name, identity/location of necessary parties and descriptions of property in connection with each delinquent tax account upon request by FIRM. 4 PROCEDURES FOR COLLECTION Upon initial receipt of the delinquent tax records by FIRM in computer readable form, FIRM agrees to initiate procedures for the collection of the full amount due fi-om each taxpayer. Within a reasonable time fi:amc but not more than sixty (60) days fi:om FIRM's receipt of the delinquent tax records, FIRM hereby agrees to send, by first class mail, a notice of delinquency to .each and every delinquent taxpayer where the taxes have not been deferred nor involved in a lawsuit against the appraisal district to determine value, requesting said taxpayer to remit the full amount due and owing to CITY. 5 REVIEW AND AUTHORIZATION TO SUE Following transmittal of the notice of delinquency as specified hereinabove, FIRM will commence procedures in anticipation of litigation for aggressive pursuit of collection. CITY shall have absolute discretion over those accounts on which suit should be filed. The transmittal of the delinquent tax information to FIRM from CITY shall constitute authorization to file suit following the mailing of the initial notice of delinquency. Upon written notice, CITY may at any time withdraw authorization to file suit. CITY may at any time withdraw authorization to foreclose and sell the property and said wi~drawal shall be in writing. 6 LITIGATION RESPONSIBILITIES A. FIRM agrees to commence litigation, prosecute, and reduce to judgment all delinquent accounts including all pending lawsuits that FIRM deems to warrant or on which CITY has specifically requested action in writing. Each suit filed shall seek: personal judgment against the individual taxpayer(s) for all taxes for which the taxpayer can be held personally liable, penalty and interest; foreclosure of any tax lien which may exist by operation of law; and any and all court costs incurred in prosecuting the lawsuit, and any collection fees or attorney's fees which the taxpayer is obligated to pay. FIRM shall perform litigation responsibilities and protect CITY's legal remedies including appeals, preparation of any documents required, post-judgment activities, and any other actions necessary in order to collect the delinquent taxes. Linebarger Contract page 2 B. FIRM will assume the representation of CITY in all lawsuits, including all pending lawsuits, involving the collection of delinquent taxes and enforcement of the tax lien including, but not limited to bankruptcy litigation, claims and actions required to be filed with federal agencies such as FDIC, FSLIC and RTC, interventions in suits filed on behalf of any other taxing unit's current suits, and any other suit or litigation which may involve or relate to the collection of delinquent taxes. FIRM will inform CITY of any counterclaims or cross-actions filed against CITY. C. Upon request, provide legal advice and assistance to CITY in the acquisition of property pursuant to the Property Code for public purpose use. 7 TAXPAYER SERVICES In addition to litigation, FIRM further agrees to provide taxpayer service without charge. As such, FIXM agrees (1) to provide CITY tax collector legal advice and written opinions regarding tax matters upon request; (2) to respond to taxpayer inquiries and to advise CITY, in writing, or, and make any recommendations concerning installment payment agreements and settlement agreements proposed by the taxpayer. CITY shall have final determination in acceptance of all installment payments or settlement agreements within parameters established by CITY. FIRM shall have discretion to enter into installment agreements subject to CITY's prerogative of final determination. In all demand letters and all communications with taxpayers,' FIRM shall inform and instruct the taxpayer to remit its payment to CITY. If remittance is received by FIRM, it must be transmitted in its entirety to CITY and received for processing by 11:30 a.m. of the following business day. Checks made payable to FIRM shall be endorsed by FIRM to CITY. No check, cash or money order for payment of delinquent taxes shall be deposited in any FIRM account. 8 PROGRESS REPORTS FIRM agrees to make delinquent tax collection progress reports to CITY monthly and quarterly, in a format containing information as requested by CiTY's Assistant City Manager for Fiscal and Municipal Services. Progress reports may include, without limitation: 5. 6. 7. 8. 9. First demand letters mailed; Number and value of suits filed; Number and value of suits dismissed a. due to collection, b. other - specify reason; Number and value of judgments entered; Number and value of bankruptcies filed; Copies of judgments; Copies of proof of claims filed in bankruptcy court; Copies of Foreclosure Sale Deeds; and Number and value of delinquent accounts not collected as a percentage of total delinquent accounts provided by CITY for collection. Within parameters estabhshed at the initiation of the collection program, FIRM shall advise CITY of any case in which FIRM's investigation has revealed that the taxpayer cannot be found, the Linebarger Contract page 3 enforcement of the tax lien cam~ot be accomplished, or further attempts at tax collection would be futile and FIRM's recommendation relative to the proper disposition of the case. In such cases, the CITY shall advise FIRM as to the appropriate disposition of the account. 9. COMPENSATION A. As compensation for the services rendered hereunder by FIRM, CITY hereby agrees to pay FIRM 15 pe[cent (15%) of the total mount of all delinquent taxes, penalty and interest for the tax years covered by this Contract as authorized by §33.48(a)(5) of the Property Tax Code. All compensation set forth above shall become the property of FIRM at the time payment of taxes, penalty and interest are received by CITY. The 15 percent (15%) collection fee will only be paid on taxes which remain delinquent after July 1 of the year on which they became delinquent, pursuant to the Property Tax Code §33.07. Said collection fee will only be paid to FIRM after k has been received by CITY from taxpayer or from forced sales. FIRM shall not be entitled to the aforesaid 15 percent (15%) unless and until FIRM has taken some action in connection with recovering delinquent taxes. The transmittal of a notice of delinquency shall constitute sufficient action in order to entitled FIRM to the fee aforesaid. As compensation for the services rendered hereunder by FIRM for the collection of taxes which are not eligible for the additional penalty as authorized by Property Tax Code §33.07 and upon which suit has been filed, the compensation shall be reasonable attorney's fees approved by the court and not exceeding fifteen percent (15%) of the total amount of taxes, penalties and interest due CITY. In no event shall FIRM be entitled to any fee unless and until CITY actually collects the delinquent taxes, penalty, interest, court costs or collection costs or attorney's fees from the taxpayer or from the proceeds of a forced sale or foreclosure. In no event shall F/KM be entitled to any fee unless said fee is collected by CITY during the term of this Contract or fee is collected by CITY on account(s) upon which FIRM is attorney of record at the time of judgment. CITY shall pay said fees to FIRM by check monthly. No interest shall be accrued on any late payment. B. The compensation set forth in paragraphs 9 10 and 13 of this Contract shall be the total compensation due from CITY to FIRM for all services provided pursuant to this Contract and in no event shall FIRM seek any additional compensation from CITY. 10. COLLECTION OF OTHER DELINQUENT ACCOUNTS FIRM shall, upon written request of City, undertake the collection of delinquent accounts for paving assessment liens, substandard housing demolition liens, and weed liens. The collection of these accounts shall be undertaken on the basis of attorney's fees assessed to and collected from the debtors. CITY agrees to pay FIRM, as compensation, all amounts received as attorney's fees on delinquent accounts for paving assessment liens, substandard housing demolition liens, and weed liens which are collected during the term of this Contract as a result of FIRM's collection efforts. 11. CONFLICTS OF INTEREST FZRaM agrees not to represent any client who has an adversary position with the City of Denton, engage in any conflict of interest to fully comply with the Texas Disciplinary Rules of Professional Conduct (Subtitle G - Texas Government Code) for the duration of this Contract. Linebarger Contract page 4 12. TERM This Contract shall have a term of three (3) years, beginning on July 1, 2002 and ending on June 30, 2005 This Contract may be extended for two additional one-year terms upon the CITY giving written notice to FIRM of its desire to continue this Contract at least thirty (30) days prior to the expiration of the initial three-year term, This Contract shall continue in full force and effect from month to month at the option of CITY, unless either party delivers written notice to the other party of its intent to temfinate this Contract at least thirty (30) days prior to the date of the intended termination. FIRM shall have an additional six months to reduce to judgment and sale all tax collection lawsuits filed and collect all bankruptcy claims filed prior to the termination date, and shall have the exclusive right to compensation of fees earned due to these suits during this six month period. CITY shall have the right to sooner terminate this Contract by giving thirty (30) days' written notice of such intention, or in the event of any of the events taking place under Section 33 Ten-ninafion of Agreement". In case of such termination, FIRM shall be entitled to receive and retain all compensation due up to the date of said termination. Upon termination, FIRM shall immediately deliver all files in their entirety to CITY at no cost to CITY. 13. ATTORNEY'S FEES In eminent domain and other judicial proceedings, FIRM will be entitled to only those attorney's fees awarded by the court and then only if collected by CITY. In-bankruptcy proceedings, FIRM shall be entitled to a fee of 15% of the tax, interest, and penalty actually collected by CITY. FIRM agrees to file and diligently pursue all claims on behalf of CITY in banlm~ptcy, eminent domain and other judicial or administrative proceedings whether federal or state in nature. 14. TAX WARRANTS Upon request and authorization of CITY, FIRM shall prepare and pursue the issuance of tax warrants. FIRM shall then coordinate the seizure of personal property pursuant to warrant and actually accompany the Tax Collector to the location of the personal property which is to be seized to insure the necessary procedures have been followed. 15. SETTLEMENTS No settlements or compromises of taxes, penalty or interest shall be effected where prohibited by law and where authorized by law, only upon approval by CITY. If a taxpayer requested waiver is upheld as provided by §33.011 of the Tax Code, FIRM will bear the costs of suit if it failed to notify the taxpayer of the delinquency prior to filing of the suit. 16. NOTICE Any notice or other written instrument required or permitted to be delivered pursuant to the terms of this Contract shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, remm receipt requested, addressed to CITY or FIRM, as the case may be, at the following addresses: Linebarger Contract page 5 CITY FIR~ City of Denton, Texas ATTN: Assistant City Manager for Fiscal and Municipal Services 215 E. McKinney Denton, Texas 76201 Linebarger, Goggan, Blair, Pefia & Sampson, Atto: Stephen T. Meeks Oil & Gas Bldg., Suite 114 309 W. 7th Street Fort Worth, Texas 76102-5113 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. 17 COLLECTION REQUIREMENTS FIRM agrees to collect, between July 1, 2002 and June 30, 2005, not less than sixty percent (60%) of the total dollar value of the adjusted base tax of the 2001 delinquency existing on July 1, 2002. FIRM agrees to collect, between July 1, 2003 and June 30, 2004, not less than sixty percent (60%) of the total dollar value of the adjusted base tax of the 2002 delinquency existing on July 1, 2003. FIRM agrees to collect, between July 1, 2004 and June 30, 2005, not less than sixty percent (60%) of the total dollar value of the adjusted base tax of the 2003 delinquency existing on July 1, 2005. Furthermore, should the CITY invoke the option to extend this contract beyond June 30, 2005 as prescribed in Section 12, then the FIRM agrees to collect between the July 1 and subsequent June 30 time period, for each year the contract is extended, not less than sixty percent (60%) of the total dollar value of the adjusted base tax from the most recent tax year of the delinquency existing on July 1 of each respective year. If FIRM does not collect the above referenced amount each year, it shall provide CITY with legal services, programming and computer services, or data processing equipment w/th a value not less than Ten Thousand Dollars ($10,000.00) or, at the option of CITY, FIRM shall pay CITY the sum of Ten Thousand Dollars ($10,000.00) on or before August 15 of the year it fails to collect the minimum amount specified herein. The terms, obligations and requirements of this Contract shall be construed in accordance with the laws of the State of Texas. The obligations and requirements of the parties hereto are performable in Denton County, Texas. Any litigation involving this Contract shall be tried in a court of competent jurisdiction sitting in Denton County, Texas. 19. ACCEPTANCE OF EMPLOYMENT In consideration of the terms, covenants and mutual agreements hereinabove stated, FIRM hereby accepts the employment of CITY and undertakes the performance ofth/s Contract as above stated. 20. DIRECTIVES All directives between FI2~V[ and CITY shall be confirmed in writing. Linebarger Contract page 6 21. COVENANT NOT TO SUE FIRM further agrees not to bring any cause of action against CITY relative to this Contract. Should FIRM bring any cause of action against CITY, FIRM agrees the liquidated damages shall not exceed $1.00 and the filing of such cause of action shall be considered a material breach of this Contract. 22. AMBIGUITY Any ambiguity within this Contract shall be liberally interpreted in favor of CITY. 23. ASSIGNMENT The rights and responsibilities of CITY under this Contract may be assigned by the City Council to another governmental unit in Denton County without approval of FIRM. It is understood and agreed that this is a professional services contract and CITY is contracting for the unique services of FIRM. FIRM's rights and responsibilities under this Contract may not be assigned by FIRM to another law firm or collection agency without written approval of the assignment by the City Council 24. INDEN[NITY AGREEMENT The FIRM shall indemnify and save and hold harmless the CITY 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 CITY, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the FIRM or its officers, shareholders, agents, or employees in the execution, operation, or performance of this Contract. Nothing in this Contract shall be construed to create a liability to any person who is not a. party to this Contract, 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 this Contract, including the defense of govermuental immunity, which defenses are hereby expressly reserved. 25. INSURANCE During the performance of the services under this Contract, FIRM shall maintain the following insurance with an insurance company licensed 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: Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. The FIRM shall furnish insurance certificates or insurance policies at the CITY's request to evidence such coverages. The insurance policies shall name the CITY as an additional insured on all such policies, and shall contain a provision that such insurance shail not be canceled or modified Linebarger Contract page 7 without 30 days prior written notice to CITY and FI]RM. In such event, the FIRM shall, pr/or to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. 26. EXHIBITS RFP #2847attached hereto as Exhibit "A" and the FIRM's response to the RFP attached hereto as Exhibit "B" are incorporated herein as if set forth at length and made a part hereof. The provisions of Extfibit "A" and Exhibit "B" shall set forth obligations and duties of the FIRM to the extent that they do not conflict with other provisions set forth in this Contract, which contractual provisions shall control. 27. ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Contract by submitting the dispute to arbitration or other means of alternate dispute resolution, such as mediation. No arbitration or alternate dispute resolution arising out of or relating to this Contract, involving one party's disagreement, may include the other party to the disagreement without the other's approval. 28, ENTIRE AGREEMENT This Contract, consisting of 11 pages and 2 exhibits, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made/n connection with the subject matter hereof. 29. COMPLIANCE WITH LAWS The FIRM 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. 30. DISCRIMINATION PROHIBITED In performing the services required hereunder, the FIRM shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. 31. PERSONNEL AND EQUIPMENT The FIILM represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Contract. Such personnel shall not be employees or officers of, or have any contractual relations with the CITY. FrRM shall inform the CITY of any conflict of interest or potential conflict of interest that may arise during the term of this Contract. Linebarger Contract page All services required hereunder will be performed by the FIRM or under its supervision. All personnel engaged in work shall be qualified, and shall be authorized and permi.tted under state and local laws to perform such services. The FIRM represents that it has or will secure, at its own expense, the hardware, software, and other resources required to perform, in a timely manner, all the services required under the terms of this contract. 32. ASSIGNABILITY The FIRM shall not assign any interest in this Contract, and shall not transfer any interest in this Contract (whether by assi~naent, novation, or otherwise) without the prior written consent of the CITY. 33. TERMINATION OF AGREEMENT Notwithstanding any other provision of this Contract, either party may terminate by giving thirty (30) days advance written notice to the other party. This Contract may be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under tkis Contract. No such termination will be affected unless the other party is given (1) written notice (delivered by certified mail, remm receipt requested) of intent to terminate and setting forth the reasons specifying the nonperformance, and not less than 30 calendar days to cure the failure, and (2) an opportunity for consultation with the terminating party prior to termination. If the agreement is terminated prior to completion of the services to be provided hereunder, FIRM shall immediately cease all services and shall render a final bill for services to the CITY within 30 days after the date of termination. The CITY shall pay FIRM for all services properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior to the date of termination, in accordance with Article 9 "Compensation". Should the CITY subsequently contract with a new consultant for the continuation of services on the Project, FIRM shall cooperate in providing information. The FIRM shall mm over all documents prepared or furnished by FIRM pursuant to this Contract to the CITY on or before the date of termination, but may maintain copies of such documents for its use. 34. MODIFICATION No waiver or modification of this Contract or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Contract, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as herein set forth. Linebarger Contract page 9 35. INDEPENDENT CONTRACTOR FIRM shall provide services to CITY as an independent contractor, not as an employee of the CITY. FIRM shall not have or clahr~ any right arising from employee status. 36. MISCELLANEOUS The following exhibits are attached to and made a part of this Contract: Exhibit "A" - Request for Proposals; Exhibit "B" -FIRM's proposal. FIRA/[ agrees that CITY shall, until the expiration of three (3) years after the final payment under this Contract, have access to and the right to examine any directly pertinent books, documents, papers, and records of the FIRM[ involving transactions relating to this Contract. FIRM agrees that CITY shall have access during normal working hours to all necessary FIRM facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section. CITY shall give FIRM reasonable advance notice of intended audits. For the purpose of this Contract, the key persons who will perform most of this work hereunder shall be Debra Patton. However, nothing herein shall limit FIRM[ fi:om using other qualified and competent members of its firm to perform the services required herein. Do FIRM shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, economical, efficient manner and in accordance with the provisions hereof. In accomplisking the projects, FIRM shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the CITY. The CITY shall assist the FIRM[ by placing at the FI}LM's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions for the FIRM to enter in or upon public and private property as required for the FIRM to perform services under this Contract. 37. TIME OF THE ESSENCE Time is of the essence with respect to all matters covered by this Contract. 38. CAPTIONS The captions appearing at the first of each numbered section are inserted and included solely for convenience and shall never be considered or given any effect in construing this Contract. This Contract is executed on behalf of CITY by the presiding officer of its governing body who is authorized to execute th_is instrument by order heretofore passed and duly recorded in its minutes and by a partner of FIRA/[ who, by execution of this Contract, represents and warrants that he or she has the authority to execute this document on behalf of FIRM. Linebarger Contract page 10 WITNESS the signature of all parties hereto in triplicate originals this the ,2002, Denton County, Texas. day of CITY OF DENTON, TEXAS EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Linebarger, Goggan, Blair, Pefia & Sampson, LLP BY:~ Gregory & Cormer, P.C. BY:~ S:\VsrpDocSxsham6~ur documents~X\02\DELINQUE.TAX Linebarger Contract page 11 Exhibit A DELINQUENT TAX COLLECTION ATTORNEYS RFSP # 2847 OPENING DATE: MAY 14, 2002 2:00 P.M. · RFSP # 2847 CITY OF DENTON REQUEST FOR PROPOSALS FOR DELINQUENT TAX COLLECTION ATTORNEYS INTRODUCTION The City of Denton is seeking to hire legal counsel to collect delinquent taxes for all tax years. The City is seeking proposals from law fmms with experience in property tax collections, and with adequate personnel and data processing capacity to process and collect the city's delinquent tax accounts. SCOPE OF SERVICES Tax collection attorneys will be responsible for the following duties and services: Preparing monthly status reports and updates on pending suits, judgments, foreclosures, installment agreements, and collection efforts. Preparing and sending such notices to delinquent taxpayers as may be required by law or as may be advisable for the purpose of expediting collections. 3. Bringfing lawsuits against delinquent taxpayers to foreclose tax liens and otherwise facilitate collection of delinquent taxes. Firm shall be responsible for filing of delinquent tax claims in bankruptcy proceedings; including claims and actions required to be filed with Federal agencies such as the FDIC: and consult with the City of Denton City Attorney' s office on such matters. Advising the city on legal issues that arise in the process of delinquent tax collection. This includes legal support, advice, written opinions, and research upon request. Providing such additional services as the Denton City Council or the Treasury & Tax Manager may deem advisable to expedite the collection of delinquent taxes. o Provide total and complete delinquent tax collection and coordinate these efforts with the City of Denton Tax Department. Firm will indemnify and hold the City harmless from any suits or liabilities that may result from the fmu's delinquent tax collection activities. Provide all supplies, postage, court filing fees and all other costs necessary to handle billing and necessary mailings and obtain appropriate title research and relevant ownership records of all property upon which a suit is to be filed, at fa-ms expense. 9. Intervene in delinquent tax suits filed by Denton County and/or the Denton Independent School District, if applicable. 10. Only collect those groups or individuals accounts which the City of Denton determines in its discretion are to be collected by fm-m S:prch/bidspec/2847ffsp.doc 2 RFSP # 2847 EVALUATION OF PROPOSALS The city will make its selection based on an evaluation of all of the information provided. Completeness of information sought will be an important factor in the evaluation process. Proposals will be evaluated by the city's staff, and the resulting selection will be presented to the City Council for approval. All proposals will remain confidential until an award is made by the city. By th_is request, the city has not committed itself to employ delinquent tax collection counsel nor does the suggested scope of services require that delinquent tax collection counsel be employed for any or all of those purposes. The city reserves the right to make those decisions after it receives all proposals, and the city's decision on such matters is final. CRITERIA FOR SELECTION 40% Established history of maintaining performance goal, which is equal to, but not less than 60% of the total dollar value of the base taxes collected as of July 1 of each year. 20% Established history of expertise in delinquent tax collection field and organization's personnel expertise in ad valorem tax matters. 20% Delinquent tax collection services (i.e., work plan, taxpayer communications program, bankruptcy collection program, taxpayer ass/stance, tax suits, tax sales, tax seizures) 10% Ability to establish a Denton office or functional equivalent 10% Collection Technology (i.e., computer hardware/software, interaction with city's computer system, and technical support available to the city). TERMS This request, is for a contract term for three (3) years, beginning on July 1, 2002, and ending on June 30, 2005. The contract term may be extended for two additional one-year terms upon the City giving written notice to the awarded firm of its desire to continue it service at least thirty (30) days prior to the expiration of the initial three-year term. The City may terminate contract for any reason, with or without cause, upon thirty (30) day's written notice to the firm. The City will allow firm an additional six (6) months to reduce to judgment all suits flied prior to the expiration of the contract. The Finn must provide for the orderly delivery of copies of all complete tax files to be turned over to the City Attorney when the contract is terminated. The F/tm must have an established history of expertise in the delinquent tax collection field and is agreeable to the performance goal, which is equal to, but not less than 60% of the total dollar value of the base taxes collected as of July 1 of each year of the contract and can show established history of maintaining the performance goal. The City will pay the law fn'm a fee not to exceed Sec. 33.07 of the Property Tax Code on all delinquent taxes, penalty and interest actually collected and paid the city during the term of this contract. The city shall pay said funds to the fn-m monthly by check. Firm will have, or will establish, a Denton office or functional equivalent by the date the delinquent accounts are turned over to firm, and will provide a 1-800 number, or other toll-free service, to its main office. S :prcb/bidspec/2847rfsp.doc 3 RFSP # 2847 SUBMISSION OF PROPOSALS Please submit three (3) copies of your proposal before 2:00 PM on the bid opening date in sealed envelopes to the following: City of Denton Purchasing Department 901-B Texas Street Denton Texas, 76201 Attention: Tom Shaw, Purchasing Agent Proposals must be sealed and clearly marked: "RFP # 2847 PROPOSALS FOR DELINQUENT TAX COLLECTION ATTORNEYS". There is no expressed or imphed obligation on the part of the city to reimburse responding firms for any expenses incurred in preparing proposals in response to the request. The following Rems must be included as part of your proposal: Cover Letter RFP number and title Firm name, address, phone, and fax Signed and dated by authorized representative of firm Executive Summary Describe your organization's background and experience in delinquent tax collections. Please include years in the business. List local office(s) and resources Convey your organizations plan for conferring on a regular basis w/th the City of Denton City Council and the Treasury & Tax Manager Overview of proposed services to be offered based on the information attached. III. Delinquent tax collection services Proposed work plan Taxpayer communications program Address research and taxpayer location program Bankruptcy collection program Taxpayer assistance Include descriptions of the following processes: Tax Suits - process and pre-suit process Tax Sales - process Tax Seizures - process and samples if available IV. Describe your organization's personnel expertise in ad valorem tax matters: Specify the number of full-time employees for firm Specify the number of full-time attorneys employed by your fu-m Identify the personnel who would handle collections for the city Provide biographies of key management and attorneys Provide information concerning minority involvement regarding the work to be performed by your firm pursuant to this request. Indicate the ethnic makeup and the gender of your staff. Also indicate your compliance with EEOC regulations and guidelines. S :prch/bidspec/2847rfsp.doc 4 RFSP # 2847 V. Collection Technology Describe the computer hardware and software used to collect delinquent taxes Describe how it will interact with the city's computer system · Identify the law firm's technical personnel and technical support available to the city VI. References - Provide a complete list of past and current Texas clients. In addition, provide at least five references where delinquent tax collection services are provided to entities sirnilar to the City of Denton. These references should include the name of the contact person, address, phone number, and a five-year summary of delinquent tax collections listed as a percent of base tax, excluding P&I, submitted to the firm for collection. VII. Any other information you consider germane to collection of delinquent taxes or this request. S :prch/bidspec/2847rfsp.doc 5 · ' RFSP # 2847 CONTRACT FOR THE COLLECTION OF DELINQUENT PROPERTY TAXES THE STATE OF TEXAS COUNTY OF DENTON Denton, THIS CONTRACT is made and entered into by and between the City of Denton, 215 E. McKinney, . Texas 76201 ("CITY"), acting herein by and through its governing body, and · ("FrP,~"). 1. EMPLOYMENT OF I¢IRM CITY agrees to employ and does hereby employ FIRM, as ar, independent contractor, and FIRM hereby agrees to enforce by suit or otherwise the collection of all delinquent taxes, penalty and interest owing to CITY. Current year taxes which become dehnquent within the period of this Contract shall become subject to the terms of the Contract upon the following conditions and FIRM shall perform the following services: A. Taxes that become delinquent during the term of this Contract, that are not delinquent for any prior years, become subject to the terms of this Contract on July 1st of the year in which they become delinquent. B. Taxes that become delinquent during the term of this Contract on property that is delinquent for prior years shall become subject to its terms on the first day of delinquency as defined by the Texas Property Tax Code· C. FIRM shall begin collecting current year personal property taxes on March 1st of the year in which they become delinquent. CITY shall not owe FIRM a fee on the current year delinquent personal property taxes collected between March 1st and lune 30th unless attorney's fees are collected pursuant to Section 33.48 of the Texas Property Tax Code. D. FIRM shall perform all those services set forth in CITY's Request for Proposals ("RFP") dated ,2002 and FIRM, s response to the RFP dated ,2002 which are attached hereto and made a part hereof respectively as Exhibits "A" and "B" as if written word for word herein, as well as all other services set forth in the Contract. E. If there is any conflict between the terms of this Contract and conditions of the attached exhibits, this Contract will control over the terms and conditions of the attached exhibits. FIRM hereby agrees to perform the services herein with diligence and in accordance with the highest professional standards customarily obtained for such services in the State of Texas. 2 PROVISION OF INFORMATION CITY agrees to furnish all necessary delinquent tax information to FIRM on all property within the boundaries of CITY. 3 INVESTIGATION AND ASSISTANCE FIRM agrees to conduct investigations as to the address of each taxpayer and the location of the property where such information may be incorrect on the delinquent tax record. Fll~vl shall bring to the attention of the appropriate tax official of CITY any errors, double assessments, discrepancies, or inaccuracies in the information provided on the delinquent tax record detected by FIRM. FIRM further agrees to provide CITY with any advice or assistance in connection with updating the tax rolls. CITY shall make available to S :prch/bidspec/2847rfsp.doc 6 RFSP # 2847 FIRM information wh/ch CITY may have with regard to the name, identity, location of necessary parties and descriptions of property in connection with each delinquent tax account upon request by FIR1V[. 4 PROCEDURES FOR COLLECTION Upon m/rial receipt of the delinquent tax records by FIRM in computer readable form, FIRM agrees to initiate procedures for the collection of the full amount due fi:om each taxpayer. Within a reasonable t/me frame but not more than sixty (60) days fi:om FIRM's receipt of the delinquent tax records, FIRM hereby agrees to send, by first class marl, a notice of delinquency to each and every delinquent taxpayer where the taxes have not been deferred nor involved in a lawsuit against the appraisal district to determine value, requesting said taxpayer to remit the full mount due and owing to CITY. 5 REVIEW AND AUTttORIZATION TO SUE Following transmittal of the notice of delinquency as specified hereinabove, FIRM will conanence procedures in anticipation of lingation for aggressive pursuit of collectiom CITY shall have absolute discretion over those accounts on which suit should be flied. The transmittal of the delinquent tax information to FIRM fi:om CITY shall constitute authorization to file suit following the mailing of the initial notice of delinquency. Upon written notice, CITY may at any t/me with&aw authorization to die suit. CITY may at any time wi~draw authorization to foreclbse and sell the property and said with&ami shall be in Writing. 6 LITIGATION RESPONSIBILITIES A. FIRM agrees to commence litigation, prosecute, and reduce to judgment all delinquent accounts including all pending lawsuits that FIRM deems to warrant or on which CITY has specifically requested action in writing. Each suit flied shall seek: personal judgment again.st the individual taxpayer(s) for all taxes for which the taxpayer can be held personally liable, penalty and interest; foreclosure of any tax lien which may er&st by operation of law; and any and all court costs incurred in prosecuting the lawsuit, and any collection fees or attorney's fees which the taxpayer is obligated to pay. FIRM shall perform litigation responsibilities and protect CITY's legal remedies including appeals, preparation of any documents required, post-judgment activities, and any other actions necessary in order to collect the delinquent taxes. B. FIRM w/Il assume the representation of CITY in all lawsuits, including all pending lawsuits, involving the collection of delinquent taxes and enforcement of the tax lien including, but not lira/ted to haukruptcy litigation, claims and actions required to be filed with federal agencies such as FDIC, FSLIC and RTC, interventions in suits fried on behalf of any other taxing unit's current suits, and any other suit or litigation which may involve or relate to the collection of delinquent taxes. FIRM w/il inform CITY of any counterclaims or cross-actions filed against CITY. C. Upon request, provide legal advice and assistance to CITY in the acquisition of property pursuant to the Property Code for public purpose use. 7 TAXPAYER SERVICES In addition to litigation, FIRM further agrees to provide taxpayer service without charge. As such, FIRM agrees (1) to provide CITY tax collector legal advice and written opinions regarding tax matters upon request; (2) to respond to taxpayer inquiries and to advise CITY, in writing, or, and make any recommendations concerning installment payment agreements and settlement agreeme~nts proposed by the taxpayer. CITY shall have final determination in acceptance of all installment payments or settlement agreements within parameters established by CITY. FI2RM shall have discretion to enter into installment agreements subject to CITY's prerogative of final determination. In all demand letters and all comnmnications with taxpayers, FIRM shall inform and instruct the taxpayer to remit its payment to CITY. I/remittance is received by FIRM, it must be transmitted in its entirety to CITY and received for processing by 11:30 a.m of the following business day. Checks made payable to FIRM shall be endorsed by FIRM to CITY. No check, cash or money order for pay- ment of delinquent taxes shall be deposited in any FIRM account. S :prch/bidspec/2847rfsp.doc 7 RFSP # 2847 8 PROGRESS REPORTS FIRM agrees to make delinquent tax collection progress reports to CITY monthly and quarterly, in a format containing information as requested by CITY's Executive Director of Finance. Progress reports may include, without limitation: 5. 6. 7. 8. 9. First demand letters mailed; Number and value of suits filed; Number and value of suits dismissed a. due to collection, b. other- specify reason; Number and value of judgments entered; Number and value of bankruptcies filed; Copies of judgments; Copies of proof of claims filed in bankruptcy court; Copies of Foreclosure Sale Deeds; and Number and value of delinquent accounts not collected as a percentage of total delinc~uent a~counts provided by CITY for collection. Within parameters established at the initiation of the collection program, FIRM shall advise CITY of any case in which FIRM's investigation has revealed that the taxpayer cannot be found, the enforcement of the tax lien cannot be accomplished, or further attempts at tax collection would be futile and FIRM's recommendation relative to the proper disposition of the case. In such cases, the CITY shall advise FIRM as to the appropriate disposition of the account. 9. COMPENSATION A. As compensation for the services rendered hereunder by FIRM, CITY hereby agrees to pay FIRM percent (.__%) of the total amount of all delinquent taxes, penalty and interest for the tax years covered by this Contract as authorized by §33.48(a)(5) of the Property Tax Code. All compensation set forth above shall become the property of FIRM at the t/me payment of taxes, penalty and interest are received by CITY. The percent ( %) collection fee will only be paid on taxes which remain delinquent after July 1 of the year on which they became delinquent, pursuant to the Property Tax Code §33.07. Said collection fee will only be paid to FIRM after it has been received by CITY from taxpayer or from forced sales. FIRM shall not be entitled to the aforesaid pement (__%) unless and until FIRM has taken some action in connection with recovering delinquent taxes. The transmittal of a notice of delinquency shall constitute sufficient action in order to entitled FIRM to the fee aforesaid. As compensation for the services rendered hereunder by FIRM for the collection of taxes which are not eligible for the additional penalty as authorized by Property Tax Code §33.07 and upon which suit has been filed, the compensation shall be reasonable attorney's fees approved by the court and not exceeding fr2een percent (15%) of the total amount of taxes, penalties and interest due CITY. In no event shall F~IVi be entitled to any fee unless and until CITY actually collects the delinquent taxes, penalty, interest, court costs or collection costs or attorney's fees from the taxpayer or from the proceeds of a forced sale or foreclosure. In no event shall FIRM be entitled to any fee unless said fee is collected by CITY during the term of this Contract or fee is collected by CITY on account(s) upon which FIRM is attorney of record at the time of judgment. CITY shall pay said fees to FIRM by check monthly. No interest shall be accrued on any late payment. B. The compensation set ford't in paragraphs 9 10 and 13 of this Contract shall be the total compensation due from CITY to FItCM for all services provided pursuant to ~ Contract and in no event shall FIRM seek any additional compensation from CITY. S:prch/bidspec/2847rfsp.doc 8 R_FS1) # 2847 10. COLLECTION OF OTHER DELINQUENT ACCOUNTS FIRM shaH, upon written request of City, undertake the collection of delinquent accounts for paving assessment Hens, substandard homing demolition hens, and weed hens. The collection of these accounts shall be undertaken on the basis of attorney's fees assessed to and collected from the debtors. CITY agrees to pay FIRM, as compensation, all amounts received as attorney's fees on delinquent accounts for paving assessment liens, substandard housing demolition liens, and weed liens which are collected during the term of this Contract as a result of FIRM's collection efforts. 11. CONFLICTS OF INTEREST FIRM agrees not to represent any chent who has an adversary position with the City of Denton, engage in any conflict of interest to fully comply with the Texas Disciplinary Rules of Professional Conduct (Subtitle G - Texas Government Code) for the duration of this Contract. This Contract shall have a term of three (3) years, beginning on ,2002 and ending on . , 2005 This Contract may be extended for two additional one-year terms upon the CITY giving written notice to FIRM of its deske to continue this Contract at least thirty (30) days prior to the expiration of the initial three-year term, This Contract shall continue in full force and effect from month to month at the option of CITY, unless either party delivers written notice to the other party of its intent to termimte this Contract at least thirty (30) days prior to the date of the intended termination. FIRM shall have an additional six months to reduce to judgment and sale all tax collection lawsuits filed and collect all bankruptcy claims filed prior to the term/nation date, and shall have the exclusive right to compensation of fees earned due to these suits during this six month period. CITY shall have the fight to sooner terminate'this Contract by giving th/ny (30) days' written notice of such retention, or in the event of any of the events taking place under Section 33 Termination of Agreement". In case of such termination, FIRM shall be entitled to receive and retain all compensation due up to the date of said termination. Upon termination, FIRM shall/mmediately deliver all fries in their entirety to CITY at no cost to CITY. 13. ATTORNEY'S FEES In eminent domain and other judicial proceedings, FIRM will be entitled to only those attorney's fees awarded by the court and then only if collected by CITY. In bankruptcy proceedings, FIRM shall be entitled to a fee of 15% of the tax, interest, and penalty actually collected by CITY. FIRM agrees to file and diligently pursue all claims on behalf of CITY in bankruptcy, eminent domain and other judicial or administrative proceedings whether federal or state in nature. 14. TAX WARRANTS Upon request and authorization of CITY, FIRM shall prepare and pursue the issuance of tax warrants. FIRM shall then coordinate the seizure of personal property pursuant to warrant and actually accompany the Tax Collector to the location of the personal property which is to be seized to insure the necessary procedures have been followed. 15. SETTLEMENTS No settlements or compromises of taxes, penalty or interest shall be effected where prohibited by law and where authorized by law, only upon approval by CITY. If a taxpayer requested waiver is upheld as provided by § 33.011 of the Tax Code, FIRM will bear the costs of suit if it failed to notify the taxpayer of the delinquency prior to filing of the suit. S :prch/bidsp cc/2847rfsp.doc 9 " RFSP # 2847 16. NOTICE Any notice or other written instrument required or permitted to be del/vered pursuant to the terms of this Contract shall be deemed to have been delivered, whether actually received or not, when deposited in the Un/ted States mail, postage prepaid, registered or certified, return receipt requested, addressed to CITY or FIKIVi, as the case may be, at the follow/ng addresses: CITY FIRM City of Denton, Texas ATTN: Assistant City Manager Fiscal & Municipal Services 215 E. McKinney Denton, TX 76201 Either party may change ifs'maiYmg address by sending notice of change of address to the other at the above address by certified mail, return receipt requested. 17 COLLECTION REQUIREMENTS FIRM agrees to collect, between Iuly 1, 2002 and June 30, 2005, not less than sixty percent (60%) of the total dollar value of the adjusted base tax of the 2001 delinquency existing on July 1, 2002. FIRM agrees to collect, between July 1, 2003 and June 30, 2004, not less than sixty percent (60%) of the total dollar value of the adjusted base tax of the 2002 delinquency existing on July 1, 2003. FIRM agrees to collect, between July 1, 2004 and June 30, 2005, not less than sixty percent (60%) of the total dollar value of the adjusted base tax of the 2003 delinquency existing on July I, 2005. Furthermore, should the CITY invoke the option to extend this contract beyond Iune 30, 2005 as prescn'bed in Section 12, then the FIRM agrees to collect between the July 1 and subsequent June 30 time period, for each year the contract is extended, not less than sixty percent (60%) of the total dollar value of the adjusted base tax from the most recent tax year of the delinquency existing on July 1 of each respective year. If FIRM does not collect the above referenced amount each year, it shall provide CITY with legal services, programming and computer services, or data processing equipment with a value not less than Seven Thousand Five Hundred Dollars ($10,000.00) or, at the option of CITY, FIRM shall pay CITY the sum of Seven Thousand Five Hundred Dollars ($10,000.00) on or before August 15 of the year it fails to collect the minimum amount specified herein. The terms, obligations and requirements of this Contract shall be construed in accordance with the laws of the State of Texas. The obligations and requirements of the parties hereto are performable in.Dent°n County, Texas. Any htigation involving this Contract shall be tried in a court of competent jurisdiction sitting in Denton County, Texas. 19. ACCEPTANCE OF EMPLOYMENT In consideration of the terms, covenants and mutual agreements hereinabove stated, FIRM hereby accepts the employment of CITY and undertakes the performance of this Contract as above stated. 20. DlllECTIVES All directives between FIRM and CITY shall be confirmed in writing. S:prcb/bidspec/2847rfsp.doc 10 RFSP # 2847 21. COVENANT NOT TO SUE FIRM further agrees not to bring any cause of action against CITY relative to this Contract. Should FI~M bring any cause of action against CITY, FIRM agrees the liquidated damages shall not exceed $1.00 and the filing of such cause of action shall be considered a material breach of this Contract. 22. AMBIGUITY Any ambiguity within this Contract shall be hberally interpreted in favor of CITY. 23. ASSIGNMENT The rights and respons~ilities of CITY under this Contract may be assigned by the City Council to another governmental unit in Denton County without approval of FIRM. It is understood and agreed that this is a professional services contract and CITY is contracting for the unique services of FIRM. FI1LM's rights and responsibilities under this Contract may not be assigned by FIRM to another law firm or collection agency without written approval of the assignment by the City Council. 24. INDEMNITY AGREEMENT The FIRM shall indemnify and save and hold hanuless the CITY and its officers, agents, and employees from and against any and all hability, claims, demands, damages, losses, and expenses, including, bat not limited to court costs and reasonable attorney fees incurred by the CITY, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the FIRM or its officers, shareholders, agents, or employees in the execution, operation, or performance of this Contract. Nothing in this Contract shall be construed to create a liability to any person who is not a party to this Contract, 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 this Contract, including the defense of governmental immunity, which defenses are hereby expressly reserved. 25. INSURA_NCE During the performance of the services under this Contract, FIRM shall maintain the following insurance with an insurance company licensed 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 A2 or above: Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. The FIRM shall furnish insurance certificates or/nsurance pohcies at the CITY's request to evidence such coverages. The insurance pohcies shall name the CITY as an additional insured on all such pohcies, and shall contain a provision that such insurance shall not be canceled or modified without 30 days prior written notice to CITY and FIRM. In such event, the FIRM shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. 26. EX¥IllilTS RFP # 2847 attached hereto as Exhibit "A" and the FIRM's response to the RFP attached hereto as Exhibit "B" are incorporated herein as ffset forth at length and made a part hereof. The provisions of Exhibit "A" and Exhibit "B" shall set forth obligations and duties of the FIRM to the extent that they do not conflict with other provisions set forth in this Contract, which contractual provisions shall control. S:prch/bidspec/2847rfsp.doc 11 RFSP # 2847 27. ARBITRATION AND ALTERNATE DISPUTE RESOLI_TrlON The parties may agree to settle any disputes under this Contract by submitting the dispute to arbitration or other means of alternate dispute resolution, such as mediation. No arbitration or alternate dispute resolution arising out of or relating to this Contract, involving one party's disagreement, may include the other party to the disagreement without the oth&s approval. 28. ENTIRE AGREEN[ENT This Contract, consisting of pages and 2 exhibits, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. 29. COMPLIANCE WITH LAWS The FIRM 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. 30. DISCRIMINATION PROItIBITED In performing the services required hereunder, the FIRM shah not discr/minate again~qt any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. 31. PERSONNEL AND EQUIPMENT The FIRM represents that it has or will secure, at its own expense, all personnel required to perform all the services required under ttds Contract. Such personnel shall not be employees or officers of, or have any contractual relations with the CITY. FIRM shah inform the CITY of any conflict of interest or potential conflict of interest that may arise during the term of this Contract. All services required hereunder will be performed by the FIRM or under its supervision. All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such se~wices. The FIRM represents that it has or will secure, at its own expense, the hardware, sof~ware, and other resources required to perform, in a timely manner, all the services required under the terms of this contract 32. ASSIGNABILITY The FIS~/[ shall not assign any interest in this Contract, and shall not transfer any interest in this Contract (whether by assiffnment, novation, or otherwise) without the prior written consent of the CITY. 33. TERMINATION OF AGREEMENT Notwithstanding any other provision of this Contract, either paxty may terminate by giving thirty (30) days advance written notice to the other party. This Contract may be terminated in whole or in part in the event of either pm-ty substautially failing to fulfill its obligations under this Contract. No such termination will be affected unless the other party is given (1) written notice (delivered by certified mail, remm receipt requested) of intent to terminate S :prcl~bidspec/2847ffsp.doc 12 RFSP # 2847 and setting forth the reasons spec/lying the nonperformance, and not less than 30 calendar days to cure the failure, and (2) an opportunity for comultafion with the terminating party prior to term/nation. If the agreement is terminated prior to completion of the services to be provided hereunder, FIRM shall immediately cease all services and shall render a final bill for services to the CITY with/n 30 days after the date of termination. The CITY shall pay FIRM for all services properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior to the date of termination, in accordance with Article 9 "Compensation". Should the CITY subsequently contract with a new consultant for the continuation of services on the Project, FIRM shall cooperate in providing information. The FIRM shah turn over all documents prepared or furnished by FIRM pursuant to this Contract to the CITY on or before the date of termination, but may maintain copies of such documents for its use. 34. MODII*ICATION No waiver or modification of this Contract or of any covenant, condition, or limitation herein contained shall be valid unless m writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Contract, or the rights or obligations of the parties hereunder, and unless such waiver o~ modi_~cation is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as herein set forth. 35. INDEPENDENT CONTRACTOR FIRM shah provide services to CITY as an independent contractor, not as an employee of the CITY. FIRM shall not have or claim any right arising from employee status. 36. MISCELLANEOUS The following exhibits are attached to and made a part of this Contract: Exhibit "A" - Request for Proposals; Exkibit "B" -FIRM's proposal. FII~M agrees that CITY shall, until the expiration of three (3) years after the final payment under this Con~act, have access to and the right to examine any directly pertinent books, documents, papers, and records of the FIRM involving transactions relating to this Contract. FIRM agrees that CITY shall have access during normal working hours to all necessary FIRM facilities and shall be provided adequate and appropriate working space m order to conduct audits in compliance w/th this section. CITY shall give FIRM reasonable advance notice of intended audits. For the purpose of thks Contract, the key persons who will perform most of this work hereunder shall be Debra Patton. However, nothing herein shall limit FIRM ~om using other qual/fied and competent members of its firm to perform the services requked herein. Do FIRM shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, economical, efficient manner and in accordance with the provisions hereof. In accomplishing the projects, FII~Vi shall take such steps as are appropr/ate to ensure that the work involved is properly coordinated with related work being carried on by the CITY. The CITY shall assist the FI~VI by placing at the ~s disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions for the FIRM to enter in or upon public and private property as requ/red for the FIRM to perform services under tiffs Contract. 37. TIME O1~' TI:[E ESSENCE Time ks of the essence with respect to all matters covered by this Contract. S:prctffbidspec/2847rfsp.doc 13 RFSP # 2847 ! 38. CAPTIONS The captions appearing at the first of each numbered section are inserted and included solely for convenience and shall never be considered or given any effect in construing th/s Contract. This Contract is executed on behalf of CITY by the presiding officer of its governing body who is authorized to execute this insmmaent by order heretofore passed and duly recorded in its minutes and by a partner of FIRM who, by execution of this Contract, represents and warrants that he or she has the authority to execute this document on behalf of FIRM. WITNESS the signature of all parties hereto in triplicate originals this the ,2002, Denton County, Texas. CITY OF DENTON, TEXAS day of ATTEST: JENNIFER WALTERS, CITY SECRETA_RY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY EULINE BROCK, MAYOR BY: (Name of Firm) BY: (Name and Title of Signer) S:\gfPDOCS~shared~ur documents'~'~02',DELINQUE.TAX S:prch/bidspec/2847rfsp.doc 14 Exhibit B City of Denton Pro£osal for Delinquent Tax Collection Attorneys i RFSP # 2847 May 14, 2002, 2:00 P.M. 309 W. 7ta Street, Oil & Gas Bldg., Suite 1414, Fort Worth, Texas 76102-5113 · (817) 877-4589 303 N. Carroll Blvd., Suite 100, Denton, Texas 76201 · (940) 387-1600 © 2002 LINEBARGER GOGGAN BLAIR PEi'~IA & SAMPSON, LLP ATTORNEYS AT Lnw Oil & Gas Bldg., Suite 1414 309 W. 7th Street Fort Worth, Texas 76102-5113 (817) 877-4589 or (800) 262-9271 FAX (817) 877-0601 or (940) 458-4353 May 13, 2002 City of Denton Purchasing Department 901-B Texas Street Denton, Texas 76201 Attn.: Mr. Tom Shaw, Purchasing Agent Re:' RFP #2847 PROPOSAL FOR DELINQUENT TAX COLLECTION ATTORNEY Dear Mr. Shaw: On behalf ofLinebarger Goggan Blair Pefia & Sampson, LLP (Linebarger Goggan) and Gregory & Conner, P.C. we are pleased to submit our proposal to the City of Denton for the renewal of our contract to provide ad valorem tax collection services. Our firm represented the City of Denton from 1986 to 1992, after which the firms ofMcCreary Veselka Bragg & Allen and Hayes Coffey & Berry were awarded the contract for 5 years. After comparing the performance of the two law furas, the City rehired our law firm in 1997. I have personally supervised our City of Denton collection program since 1997 and look forward to the opportunity to continue to represent the City. I can assure you our program for the City of Denton has remained one of the best overall programs statewide, with our delinquent tax collection percentage rate reaching an all time high this past year. Linebarger Goggan and Mike Gregory have collected taxes for various taxing entities within Denton County and been a part of the Denton community since 1986. We are uniquely positioned to offer the City of Denton the most effective 'delinquent tax collection program available, as we also represent Dallas County, Tarrant County, Grayson County, Rockwall County, Wise County and hundreds of other taxing jurisdictions throughout North Texas. Our established local office, our Fort Worth and Dallas support offices, and our on-site personnel, allow us to commit substantial resources to the collection effort for your City. Debbie Patton represents us on-site by coordinating our efforts with the City of Denton and the Denton County Courts, as well as working as a liaison for the City of Denton with the Denton County Tax Office. Linebarger Goggan represents over 1,650 cities, counties, school districts, appraisal districts and special districts throughout Texas. We are the largest delinquent tax collection firm in the state and employ over 70 attorneys and more than 700 support staff in 26 offices throughout Texas. Our dedicated staff can fred delinquent taxpayers wherever they move, handle complex litigation and Austin * Beaumont * Brownsville * Conroe * Corpus Christi * Corsicana * Dallas * Edinburg * El Pa, so * Fort Worth * Houston * Jacksonville Knoxville *Lutkin · New Ofleaus · Odessa * Philadelphia * San Angelo * San Antonio * The Woodlands * Tyler · Waco Page 2 d!fficult bankruptcy cases, provide taxpayer assistance and work directly with your tax office staffto resolve issues the City of Denton may encounter. Because we have such a large network of clients and staffstatewide, the City of Denton benefits from collection strategies and ideas that have proven successful in other areas. We are quite proud that this past year, the U.S. Conference of Mayors awarded our law firm and the City of Dallas the Award of Excellence in Public/Private partnerships for our delinquent tax collection program. Our proposal tells our story in detail. We are proud of the effective program, that together with the City of Denton, we have built. Highlights of our successful program include: Collecting $1,627,559 in delinquent base tax, penalties, interest and attorney fees for the City of Denton since 1997. We have collected $254,012 of the current year receivable during the first ten months of this year's collection cycle, which represents a 42% increase over our prior year collections of $178,919 for the same time period. Last year, we collected 75.45% of the most recent year delinquent taxes mined over to our law firm for collections. This represents our "best ever performance" for the City of Denton. Filing suits involving 325 properties for approximately $300,000 in delinquent taxes, penalties and interest during the previous two years. · Conducting on-site visits to delinquent business personal property accounts. Issuing Orders of Sale and Writs of Execution only in those cases where we were unable to resolve the lawsuit in any other manner. · Working with each taxpayer individually, if necessary, to establish an installment payment schedule they can afford, without causing undue hardship. · Acting as liaison between the City of Denton Tax Office and the Denton County Tax Office to resolve issues involving tax certificates on mobile homes. · Providing address research for the tax office to assist them in maintaining ahigh current tax collection rate. · Protecting the City's interests in 131 bankruptcy accounts totaling over $200,000 and negotiating large bankruptcy settlements, such as the Montgomery Wards case. Page Our Denton County and North Texas Presence Linebarger Goggan is pleased to be affiliated with the Denton law fn-m of Gregory & Conner, P.C. This Denton law firm has assisted Linebarger Goggan with our contracts in Denton County since 1986. Mr. Gregory has continually practiced law in Denton since 1974 and maintains his own law office at 303 North Carroll Boulevard, Suite 100. As a former Demon ISD Trustee and an active member of the Demon County community, Mr. Gregory's assistance in our collection effort significantly enhances our program. Since the beginning of our service to Denton taxing jurisdictions, Mr. Gregory has assisted Linebarger Goggan by acting as a liaison with local officials and in our litigation of tax cases. Mr. Gregory is directly involved with our collection program by sharing responsibility for litigating the city's tax cases with Linebarger Goggan attorneys. His partner, Charla Conner, assists him in these efforts. Linebarger Goggan provides delinquent tax collection services to hundreds of clients throughout North Texas through our Fort Worth and Dallas offices. We have maintained an office in Fort Worth since 1982 that employs a staff of 25 attorneys, collectors and litigation specialists. Dallas employs 65 tax professionals and has served the City of Dallas, Dallas ISD, Dallas County and numerous other clients within Dallas County since 1983. Both offices have an excellent reputation for maximizing the delinquent tax revenue for their clients. Key individuals from both offices support our City of Denton collection efforts. Deborah Patton, our Denton County Coordinator, handles our day-to-day collection and litigation activities on-site in Denton County. Approach to Collections Together, Linebarger Goggan and Gregory & Conner, P.C., have customized our collection program to fit the individual needs of the City of Denton. We are uniquely positioned to offer the City of Denton the most effective delinquent-tax collection program available while employing multiple collection strategies to maximize your revenue. We offer a comprehensive delinquent tax collection program that has proven highly effective. Our success is largely attributable to the extent of personal and professional attention we expend in our collection and litigation efforts. The City of Denton can be assured that Linebarger Goggan has in the past and will continue to treat your taxpayers with the highest level of courtesy, while at the same time providing highly effective collection services. Linebarger Goggan's delinquent tax collection program is unsurpassed. Our performance is proven and predictable. Our proposal is unique in that it offers the City of Denton many factors and benefits that cannot be matched by our competitors including: Our affiliation with Gregory & Conner, P.C. as local counsel for the City of Demon Our proven performance, collection results and knowledge of City of Denton tax issues Page 4 Our historical track record of improving collections Our comprehensive collection program which emphasizes locating,and contacting delinquent taxpayers prior to the filing of lawsuits Our statewide bankruptcy representation Our use of technology to support our collection efforts Our ability to provide legislative support Our local involvement and participation in the Denton community Our commitment to minority and women ownership and participation We would consider it a pleasure to continue to represent the City of Denton. Our law firm is committed to continuing to provide a delinquent tax collection program that maximizes your c611ections and serves as a model for other cities statewide. We share yourgoal of providing the City of Denton taxpayers with the best services available and we will continue to strive to help you fulfill that obligation. We look forward to discussing our proposal with you. Thank you for your consideration. Respectfully, ~ .. Stephen T. Meeks ~ Partner Table of Contents Executive Summary Linebarger Goggan Background ................................................................... 1 Overview of Services Proposed for Collecting Delinquent Taxes for the City of Denton ............................................................................................ 1 Local Offices & Legal Resources ....................................................... 2 Services Proposed for the City of Denton .......................................... 4 Additional Services Provided ............................................................. 5 Conclusion .................................................................................................... 6 I. Collection Services Level of Expertise ......................................................................................... 1 Professional Recognition .............................................................................. 1 Collection Program ....................................................................................... 2 Proposed City of Denton Work Plan .................................................. 2 Taxpayer Communications Program ................................................. 4 Address Research /Taxpayer Location Program .............................. 6 Bankruptcy Representation .......................................................................... 7 National Bankruptcy Services ............................................................ 8 Taxpayer Assistance Program .................................................................... 12 Information Brochures ..................................................................... 12 Call Center ...................................................................................... 12 Correspondence ............................................................................. 13 Hardships ........................................................................................ 13 Other Taxpayer Services ................................................................ 13 Payment Agreements ..................................................................... 14 Litigation Tax Sales & Seizures ................................................................. 14 Litigation Process ............................................................................ 14 Foreclosure Marketing Program ...................................................... 18 Procedures for Tax Re-sale Properties ............................................ 21 Business Personal Property Collections .......................................... 21 il. Personnel Expertise Proposed City of Denton Collection Management Team .............................. 1 The City of Denton Collection Support Team ............................................... The City of Denton Specialized Collection Teams ........................................ 2 Central Support Group ................................................................................. 3 Biographies ................................................................................................... 3 The Linebarger Goggan Affirmative Action Policy .... -. ................................... 6 Linebarger Goggan Blair Pega & Sampson, LLP in Association with Gregory & Conner, P.C. © 2002 City of Denton Proposal - Table of Contents Contents - Page 2 III. Collection Technology Computer Resources & Services ...................... . ............................................ 1 Computer Personnel .......................................................................... 1 System Architecture ........................................................................... 2 Proprietary Software .......................................................................... 5 Reporting ........................................................................................... 6 Tax Office Data Transfers .................................................................. 6 Wide Area Network/Local Area Network..~ ......................................... 7 IV. References Reference Contact Information ..................................................................... 1 EXHIBITS A. Et Cetera Newsletter and Legislative Update B. Client List Linebarger Goggan Blair Pegta & Sampsor~ LLP in Association with Gregory & Conner, P.C. © 2002 Executive Summary The law fm-n of Linebarger Goggan Blair Pefia & Sampson, LLP (Linebarger Goggan) in association with Gregory & Conner, P.C. (Gregory & Conner) is pleased to submit this proposal to continue providing delinquent tax collection services for the City of Denton (City). The team of Gregory & Conner and Linebarger Goggan offers the City our national and local expertise and award winning experience in the collection of delinquent taxes. Our fu-ms know and understand the collection of delinquent property taxes and offer turnkey collection programs. Together, we offer the City a unique, comprehensive set of services and a partnership that will maximize the revenue collected for the City of Denton. LINEBARGER GOGGAN BACKGROUND Linebarger Goggan has 26 offices in Texas and over 700 support personnel, including more than 70 attorneys who practice ad valorem tax law exclusively. We pride ourselves on a thorough, professional understanding of property tax law at-every level. Our attorneys and staff are committed to meticulous attention to detail throughout the collection process, whether examining records in the tax office, prosecuting lawsuits in the courtroom, or appearing before governing bodies to report the results of our efforts. Our law f'u'm provides full-service property tax representation to more than 1,650 taxing entities statewide, including 112 Texas counties, 492 Texas school districts and the Cities of Houston, Dallas, E1 Paso, and San Antonio. In our 25 years of collecting delinquent taxes, we have developed proprietary collection software programs that integrate mass and specialized mailings, telecommunications, address and ownership research, traditional trial advocacy, and post judgment enforcement using advanced computer technologies. Our fu'm has invested more than $25 million in data processing and digital communications technologies for the sole purpose of collecting government receivables. OVERVIEW OF SERVICES PROPOSED FOR COLLECTING DELINQUENT TAXES FOR THE CITY OF DENTON Linebarger Goggan in association with Gregory & Conner proposes a contract reneWal with the City of Denton (the CitY) to provide a comprehensive delinquent tax collection program. While the formula for collecting delinquent taxes is standardized, every client has different situations and needs. The services listed on the following pages are offered to the City of Denton, to address the City's RFP requirements. We will be glad to discuss any additional services it may also desire. Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Executive Summary Executive Summary - Page 2 Local Offices & Legal Resources The Linebarger Goggan Fort Worth office is located at 309 West 7th Street, Oil & Gas Bldg., Suite 1414. We have maintained this office for the past 19 years. Ms. Deborah Patton, our Denton County Coordinator, will conduct her daily collection activities both on-site in Denton (through the local office of Gregory & Conner) and through the Linebarger Goggan Fort Worth office with its extensive support staff. The Linebarger Goggan Dallas office will provide data analysis, reporting, and technical support. Again, Mike Gregory has practiced law in Denton since 1974 and has been associated with Linebarger Goggan since 1986. Gregory & Conner is an established Denton law fnma located at 303 North Carroll Boulevard, Suite 100. Local Counsel Mike Gregory, Linebarger Goggan Partner Steve Meeks, and Area Manager Debbie Patton are alt available to meet with taxpayers at this location. Our local offices' collection personnel are readily available to assist delinquent taxpayers with questions regarding their debts. Our attorneys have extensive experience in all areas of the law involving delinquent tax collections including: advice on all tax code matters, ~' property lien issues, condemnation law, } public law, and, tax sales, resales, and deed work, } litigation strategy and civil bankruptcy law, procedure. bond issues, All law firm personnel are readily available, five days a week, to meet with taxpayers who wish to discuss their accounts in person. We have an on-line connection to the City of Denton Tax Office to assure we have the most recent payment information. This allows us to provide the best possible customer service, while reducing the workload of the tax office staff. Community Focus Our law fa-ms have a long history of civic involvement and community leadership. We believe it is important to contribute to the well being of the region we serve. Locally we support community efforts in many ways, including active membership in civic organizations and sponsorship of a variety of our clients' functions. Our staff will also make presentations to community groups or organizations interested in learning more about property taxation and taxpayers' rights as requested by the City. Comprehensive Foreclosure Marketing Program We will pursue a comprehensive tax sales program, with specific marketing strategies for selling City properties at tax foreclosure sales. Linebarger Goggan BIair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Executive Summary Executive Summary - Page 3 Regular Performance Reports We will submit regular reports to the City to maintain collection program accountability. Any other reports will be provided in writing as requested, or presented orally at the City's discretion. Taxpayer Assistance We have an exclusive 800-number for taxpayer assistance in Austin that will serve as a backup system for our Fort Worth 800-number in the event of any temporary, unexpected local office phone system failures. National Address Research/Taxpayer Locator Service We use several national electronic database programs to increase the likelihood of finding delinquent taxpayers that move frequently. Our delinquent tax address research service has on-line access to state and national databases, giving us a greater, likelihood of locating your delinquent taxpayers. Once located, they are notified of their delinquent status, and put into an active collection program. Bankruptcy Expertise We have developed a highly successful bankruptcy practice collections. The features of our bankmptcy program include: for delinquent tax We have a professional team focused exclusively on national bankruptcy collection efforts. We aggressively seek payment of all bankruptcy claims in Chapters 7, 11, 12, and 13. We maintain a close working relationship with bankruptcy trustees and staff, allowing us to provide an even greater level of protection for our clients. Our fu'rn has established procedures to protect our clients' interests by timely filing claims, responding to objections to claims, contesting interest rates and valuation of collateral proposed by debtors (which are used to determine the payment actually received), and objecting to plans of re-organization. We regularly cOnduct client seminars to familiarize tax office personnel with bankruptcy issues and instruct them in the handling of these accounts. Qualified Counsel Mr. Stephen T. Meeks, Partner, will serve as our attorney on all day-to-day matters pertaining to the City of Denton collection program. Mr. Meeks is also the managing partner of the Linebarger Goggan Fort Worth office and will provide oversight and assistance in complex issues. Mike Gregory of Gregory & Conner will act as local counsel for the fn'm. Mr. Meeks and Mr. Gregory have considerable experience in ad valorem tax matters and will be available to assist the City with any questions it may have regarding our delinquent tax program. They will also advise the City on other collection issues as requested. Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Executive Summary Executive Summary - Page 4 Services Proposed for the City of Denton Delinquent Tax Operations Comprehensive Collection Program: We will provide comprehensive delinquent tax collection services and legal representation for any tax lawsuit, property assessment, real estate matter, or dispute as it pertains to the collection of property taxes. Aggressive Collection Strategy: All eligible accounts will be placed in an active collection program, ranging from collection calls and multiple notification letters, to fding tax suits and conducting tax seizures, foreclosures, and sales. Taxpayer Notification and Personal Contact: In many instances, taxpayers need to receive more than a collection letter to prompt them to make payment. For this reason, we will supplement our mass and targeted mailings carded out during the year with collection calls to taxpayers to resolve their delinquent accounts. We operate a full-time bilingual call center to enhance collections through a high volume of personal contacts with all eligible delinquent taxpayers and lien holders. Tax Office Assistance: Our Area Manager, Debbie Patton, oversees the law fmu staff assigned to support operations and assist taxpayers. Property Seizures (Business Personal Property): Due to the perishable nature of business personal property, a member of the tax office and our fu'rn will execute tax warrants as necessary to protect the City's interests. Litigation Services: We will provide an effective litigation program for the City that is responsive to the desires of the City and tax office. The City of Denton can rely upon us to file quality lawsuits that are well researched and moved through the litigation process in a timely manner. Foreclosures and Tax Sales: At times it becomes necessary to reduce a judgment to sale. This is an integral part of our collection program that we will carry out in a manner that gives property owners every chance to make payment of taxes to prevent the sale of their property. Resale Program: We will assist the City of Denton in pursuing a comprehensive foreclosure program, including the resale of properties that do not sell at sheriff tax sales. National Bankruptcy Representation: Our Bankruptcy Department offers full representation and aggressive pursuit of all bankruptcies affecting the City of Denton delinquent tax claims to assure prompt and maximum recovery. Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Executive Summary Executive Summary - Page 5 Title Work and Lien Holder Notices: We will obtain a complete title report on every real property lawsuit. We will .also notify all lien holders and interested parties of any lawsuits filed. Taxpayer Locator Service: Using local, state, and nationwide database search tools, we will research bad addresses until the City of Denton delinquent taxpayers are located, notified of their delinquent status, and put into an active collection program. Local Representation: We are immediately available by telephone or i:n person for meetings, conferences, consultations, hearings, or other related tax matters on a daily basis. Our collection program will be customized to fit the specific needs of the City. Personal Service for the City of Denton Taxpayers: Partner Steve Meeks, Local Counsel Mike Gregory, and Area Manager Debbie Patton will focus their attention exclusively on the City of Denton collections. In' addition, all of our Fort Worth office personnel are available to assist taxpayers in person and to respond to all phone inquiries and letters from taxpayers. We will regularly meet with taxpayers to help them arrange payment of their delinquent taxes. Regular Performance Reports: We will submit regular performance reports describing collection efforts and our results achieved on behalf of the City of Denton at whatever schedule the City desires. All other periodic reports will be provided in writing if requested or presented orally at the City's discretion. Additional Services Provided Collections Analysis: We will prepare an in-depth analysis of the delinquent tax roll in order to develop the most effective collection work plan for the City. Complex Civil and Civil Appellate Litigation: We will represent the City of Denton in all types of lawsuits arising from collection activities, such as .counterclaims, injunction suits, eminent domain proceedings, declaratory judgment actions, and all types of complex property tax related litigation. Publications & Media Relations: Our fh'rn's quarterly newsletter will be distributed to City of Denton officials to keep them apprised of changes in legislation and recent judicial decisions that may affect tax operations. With the City's approval, experienced public relations professionals will also integrate media coverage into the City of Denton collection program to inform property owners of their responsibilities and deter delinquency. Taxpayer Assistance/Education: Our local staff will make presentations to community groups or organizations interested in learning more about property taxation and taxpayers' rights as requested by the City of Denton. Linebarger Goggan Blair Pefta & Sampson, ~ in Association with Gregory & Conner, P.C. City of Denton Proposal - Executive Summary Executive Summary - Page 6 Toll-Free Networkin9: Our toll-free telephone network offers the City of Denton access to all of our offices and legai counsel experienced in bankruptcy, appraisal district matters, and complex civil litigation statewide at no additionai cost to the City of Denton. Additional Collection Services: We'will provide any additional services that the tax office deems necessary to maintain the efficient administration of the collection of delinquent taxes. CONCLUSION Our mission is to generate the maximum amount of delinquent revenues at the least cost and minimum burden to the City of Denton, while providing fair and equitable treatment to all its taxpayers. To achieve this goal, we employ a variety of disciplines to mount a sophisticated revenue collection program and tailor it to the City of Denton's particular requirements. Our collection strategy is geared to steadily increasing collections for the long mn. We understand the importance of maintaining strong delinquent tax collections in order to assure that the City of Denton can make reliable budget projections and receive adequate funding for City programs. We monitor all aspects of our collection program closely to guarantee the best possible collection rates. Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. I. Collection Services LEVEL OF EXPERTISE Linebarger Goggan Blair Pefia & Sampson, LLP (Linebarger Goggan) is one of the largest private law fin-ms collecting delinquent government receivables in the United States. Our highly qualified attorneys and professional collection teams have over 25 years' experience in the industry and focus solely on collecting delinquent government debts. We currently represent over 1,600 governmental clients, including the U.S. Department of Treasury/Financial Management Services (FMS), the Cities of Dallas, Houston, Knoxville, New Orleans, and Philadelphia, and counties such as Miami-Dade, Florida and Shelby County, Tennessee. We offer our clients turnkey debt collection programs, including delinquent taxes, court fees and fines, parking violations, federal delinquencies, student loans, utility fees, and other miscellaneous government receivables. Our experience includes: · More than 25 years' experience in collecting delinquent property taxes. · More than 700 dedicated professionals, including over 70 attomeys. 32 offices, including Austin, Dallas, Fort Worth, Houston, Jacksonville, Knoxville, Los Angeles, Memphis, New Orleans, Philadelphia, and San Anton/o, just to name a few. Customized collection programs that are aggressive but fair, consisting of demand letters, collection calls, litigation, post-judgment enforcement, etc., all resulting in maximum revenue collections for our clients. · Nationwide bankruptcy representation. · Industry leader in computer systems and software support for governmental collections. PROFESSIONAL RECOGNITION Many independent parties have professionally evaluated our law f'u-ra, and we have consistently received high reviews. In January 2001 the United States Conference of Mayors presented its Award for Excellence in Public-Private Partnerships to our firm in recognition of the successful collection efforts we have achieved with the City of Dallas. Our f'mn has collected over $543,000,000 in delinquent receivables during the 18 years that we have represented Dallas and the Dallas school district. Linebarger Goggan Blair PeFta & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chapter I - Page 2 Linebarger Goggan received an "AV" rating by the Martindale-Hubbell Legal Directory, which grades the legal ability and general ethical standards of lawyers nationwide. The "AV" rating is the highest one that can be achieved by a law f'n'm. · In a recent survey conducted by Dun & Bradstreet, our clients ranked our performance as "EXCELLENT". · Our tax lien servicing operation received an approval rating from Standard and Poor's as a tax lien servicer. COLLECTION PROGRAM All services provided to the City of Denton under this section are included at no additional charge. We are the leader in the collection of ad valorem taxes in' Texas. We have developed a reputation for implementing aggressive, but fair collection strategies that achieve the desired results. Our success is attributed to the use of advanced technologies that enable our professional staff to work more efficiently, while providing for greater personalized attention to the City of Denton and its taxpayers. Our collection program is multi-faceted and tailored to meet the individual needs of the City of Denton on a daily, weekly, and monthly basis. The various strategies to be employed on behalf of the City of Denton are discussed on the following pages. Proposed City of Denton Work Plan The first steps in any successful program are to take a critical look at your delinquent tax roll (DTR), determine the appropriate target collection goals, and establish a specific work plan for achieving them. Our work plan involves three major activities: establishing a mail and notification schedule; developing a litigation plan; and ongoing collection activities. By analyzing the DTR fkst and then designing a collection program for the City of Denton, we assure the most efficient allocation of resources for consistent, long-term increases in collections. When thousands of accounts appear on a DTR, it is difficult to isolate them manually for collection. Our staff often locates certain accounts that should be targeted for collection visually, but more frequently rely upon computer analyses to help in the following areas: Identifying the types of delinquent property and their significance to the overall DTR, · Determining the distribution of dollars from the City of Denton DTR by tax year, · Identifying the persons and properties already subject to pending suits, bankruptcy, payment agreements, return mail, or other collection status, and determining the distribution of dollars, and percentage of the DTR with respect to each category or status, Linebarger Goggan Blair PeFta & Sarapson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chapter I - Page 3 Identifying unusually large delinquencies in descending order, the ranking of which is determined by an owner's total obligation by combining all properties owned, Identifying an initial "target roll" for new litigation on uncoded accounts which have received no attention other than demand letters, Identifying problem areas which are unique to any given taxing unit, including special hardship cases, and, Formulating a specific work plan annually to assure the highest level of collection. We will work closely with the City of Denton Tax Office to customize or make any changes necessary to meet the needs or requirements of the tax office. The following is a monthly work plan outlining the activities we will implement for collecting delinquent City of Denton taxes. Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chapter I - Page 4 Taxpayer Communications Program Written Notification We have developed one of the most efficient written notification programs for tax col- lection in the State of Texas.' When delinquent taxes are fkst mined over for collection in July of each year, our highest priority is notifying taxpayers of their outstanding delinquent taxes. Our laser-printed, cOmputerized mailing oPeration PrOduCes an enormous volume of cOrre- spondence with a high degree of accuracy. Our goal is for each delinquent taxpayer to receive an accurate statement of account, together with a personalized letter quoting demand for payment from us within a few days of receiving the latest data tape from your tax office. First Notification Upon receipt of the delinquent City's tax roll, we will send a tax collection letter to every eligible account. This first notification is carefully orchestrated to maximize the impact of the mailing and gain the attention of the public. We choose a mailing date so that most taxpayers will receive the demand for payment near a payday when funds might be available for prompt payment. Payments or other responses leading to payments are generally received from approximately 30% of the delinquent taxpayers on the tax roll within the first two weeks of the initial mailing. The response to the mailing allows us to quickly stratify your delinquent tax roll to facilitate assignments to different departments in our firm.. All returned mail is assigned to our address research staff. After our initial mailing, we begin targeting unpaid high-dollar accounts and taxpayers with a history.of non-payment for lawsuits. Second Notification Within 60 days of the first mailing, a second mailing is sent to real property accounts that have not yet responded and to personal property accounts that have not been identified for suit filings. We target personal property accounts of operating businesses for expedited lawsuit filing. We file these suits simultaneously with the second mailing to ensure that the collection process maintains credibility. Linebarger Goggan Blair PeKa & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chapter I - Page 5 Special Mailings Accounts that remain unresolved after receipt of our fn:st two demand letters require more specialized collection efforts. We carefully analyze the profile of the remaining delinquency and implement a detailed work plan to maximize collections on behalf the City. We target select accounts for special mailings which occur from time to time throughout the collection process. These include specialized mailings to multiple property owners, absentee owners, business taxpayers, etc. Each mailing is designed to focus the taxpayer on the need to promptly address his or her delinquency. Examples of these specialized target mailings include: · Intent to seize letters, · Intent to sue letters,. . .. · Letter to payment arrangement violators, · Set for Trial notification letters, · Letters to debtors who have received an Order of Discharge or defaulted under the Chapter 11 or 13 Bankruptcy Plan, · Intent to Foreclose letters, · Order of Sale notification letters, and, · Other targeted mailings. Mailing Costs We absorb all costs related to the production and mailing of written taxpayer notifications. These costs include, but are not limited to, tax statements, stationery, postage, penalty and interest computation, and printing. We also can provide the City of Denton with printouts of the delinquent tax roll either in its entirety or by selected groups of delinquent accounts at no additional cost. Telephone Notification and Personal Contact We have found that personal contact is an essential component of an effective collection program. A team of highly skilled personnel is employed for the sole purpose of contacting taxpayers personally in order to collect delinquent accounts. High dollar and complex accounts, including accounts involving federal agencies, are assigned to our specialized telephone collection unit. Our telephone collection unit is trained to be courteous and understanding, yet persistent. During mailings and other peak season activities, these professional collectors monitor our phone bank operations, answering the more difficult taxpayer questions with complete and concise information. Our telephone collection unit tracks assigned delinquent accounts until the tax balance is satisfied. Linebarger Goggan Blair Peaa & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chapter I - Page 6 We approach homeowners differently than commercial, industrial, or undeveloped property owners. A delinquent tax on a home is often the result of an escrow problem or recently retired loan, in which case we notify the homeowner of the delinquency and assist them in working with the mortgage company and/or the tax office. Assessment problems, posting errors, and other problems identified during the collection process are given to our research staff to be resolved. All pertinent information is provided to the City of Denton Tax Office, including changes in ownership or new addresses. Address Research / Taxpayer Location Program A successful tax collection campaign requires an intensive and sophisticated research effort. Letters cannot be delivered or citations served without proper addresses for the delinquent taxpayers. The Linebarger Goggan research system effectively and efficiently identifies and resolves problems that impede "the correct" property owner from receiving our legal notices. Correct property owner identification is critical to the following: · Delivery of demand letters, · Ability of telephone collection personnel to contact the person liable for the tax, · Determination of current registered agents, presidents, and owners of companies and corporations in order to properly file business personal property lawsuits or request tax warrants, · Determination of lienholders, if any, and, · Proper service of citations. Research Program We employ personnel who conduct address and ownership research for our clients full- time. In addition to manual sources, we rely on on-line access to numerous public and private information sources. Our staff performs research at various stages in the collection process including correcting addresses from returned mail; providing location and telephone numbers to our telephone collection staff; identifying registered agents, corporate officers or assumed name holders; and providing better addresses for service of citation. This information is provided rou- finely to the tax office. Our address research process involves: Identification of Accounts Requiring Research · Screening returned mail received from in-house mailings, · Subsequent to filing of suit, reviewing accounts of defendants who have not been served because of inadequate address information, Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chapter I - Page 7 · Identifying business personal property accounts, and · Locating accounts on the tax roll that lack address information. Maintenance of Records on File · Ad&ess corrections completed in-house are entered in our files, · "N" code is placed on the account noting a new ad&ess, · Updated ad&ess is used in place of the outdated ad&ess on the tax roll, · Accounts identified as having a bad address are compiled within our system and cross-referenced by taxpayer name, ad&ess, account number and amount owed, and · Name and ad&ess listings of the entire tax file are used for multiple account research. Business Personal Property and Related Accounts Some tax collection fares file business personal property tax lawsuits using only the ownership information and ad&ess contained on the tax roll.' Unlike other law frans, we include secured creditors in the business personal property lawsuits. This encourages creditors with an interest in the business personal property to protect that interest by payment of all amounts owed. · Personal property accounts are researched for identification and ownership, · Research staff fmds the correct name and ad&ess of the owner, president, or registered agent for these personal property accounts, · Staff compiles and transfers all relevant information required to produce the lawsuit, and · The litigation support department produces the lawsuit. Title Research We use qualified local vendors or staff abstract personnel to prepare complete title reports on real property accounts. We estimate the cost for abstract of title at $175 per report. Our f'n-m pays the initial cost for title research. All title costs are handled in accordance with Section 33.48 of the Property Tax Code; the City of Denton will not incur any costs. BANKRUPTCY REPRESENTATION When an individual or business files for bankruptcy, ordinary procedures used to collect delinquent taxes may no longer be used. Federal law expressly prohibits any continued attempt by creditors to collect from a bankruptcy debtor by any means other than the procedures specifically set forth in the United States Bankruptcy Code. We have four comprehensive Bankruptcy Departments throughout Texas (Houston, Austin, Dallas and San Antonio), fully prepared to actively pursue collections of ad valorem taxes in bankruptcy proceedings. We are in an excellent position to respond promptly to any bankruptcy developments within these jurisdictions from our local offices in these four major cities. We also actively pursue bankruptcies throughout the United States, with our attorneys routinely appearing at hearings held outside the State of Texas. We currently represent clients in bankruptcies pending in 38 states. Our attorneys Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. Chapter ! - Page 8 : City of Denton Proposal - Collection Services throughout the state are available to meet our clients' needs at all times. To protect the rights of our clients as creditors, they will file proofs of claim, monitor the progress of the cases, communicate with a debtor's attorney, submit ballots, file timely motions, attend creditors' meetings, and argue cases before the bankruptcy judge. Unlike many other law f'mns, we take a proactive stance when it comes to our clients' tax dollars. We were the first finn to begin estimating current year taxes on properties in bankruptcy fully realizing that failure to do so could result in our clients' inability to collect the current tax year. Our bankruptcy department has six full-time bankruptcy attorneys licensed to practice in Federal Court to provide immediate representation of our clients' interests in any bankruptcy court in the state and nation. National Bankruptcy Services There are no simple bankruptcy cases. By their very nature they are difficult to collect on and require a level of vigilance and expertise that is atypical of ad valorem tax lawsuits. We invest significant attorney and staff resources over considerable periods of time in order to successfully collect on our clients' bankruptcy cases, including: · Research accounts and file proofs of claim, · File claims for payment of current taxes as post petition administrative expenses, · Represent our clients at creditors' meetings, · Prepare and file all necessary legal documents, · Represent our clients at hearings in bankruptcy court, and · Travel at no cost to the City to hearings within the continental United States. Identify the Debtor Frequently debtors fail to include local tax authorities in their list of creditors. Communication and the gathering of independent information are crucial to the identification of a debtor and the subsequent collection of delinquent taxes through the bankruptcy system. We identify bankrupt accounts through: · Notices received from the debtor, · Telephone contacts by our collection staff, · Newspaper articles, · Pending lawsuits in the State courts, · Subscriptions to bankruptcy reports, · Responses from our massive mailings, Linebarger Goggan Blair Pefia & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chapter I - Page 9 · Information available through the legal community, and, · Bankruptcy Court's computer system (PACER). Nil Once a debtor is clearly identified, a "notice of appearance" and a "proof of claim" on behalf of the client are prepared and filed with the court. The proof of claim is essential to protecting the client's interest since this document puts the debtor on notice that taxes are owed according to tax records. Once the notice of appearance and proof of claim are fried, several varying events can occur in the proceeding, which determine whether and how much payment the client will receive. Our lawyers are skilled in this specialized area to handle all aspects of the bankruptcy proceeding, such as objections to claims, subordination of tax liens and re-determination of tax liability. Claim Objections Common to all bankruptcy chapters is the claim objection process. Depending on the chapter of bankruptcy and the circumstances of the case, we either defend attacks against Linebarger Goggan Blair Pefu~ & Sampson, LLP in Association with Gregory & Conner, P.C. Chapter I - Page 10 City of Denton Proposal - Collection Services our clients' tax claims or initiate actions of our own, such as motions to dismiss for failure to f'de plans of reorganization, motions for payment of administrative expenses if subsequent taxes become due and go delinquent, and motions to lift stay. We respond to ail objections that are filed by the debtor and trustee against our clients and work hard to maximize their recovery. Tax Relief One avenue of relief available to debtors and trustees in all types of bankruptcies is a revaluation of property for several years prior to the bankruptcy in order to reduce the taxes assessed on that property. We encounter this action most frequently in Chapter 11 reorganizations. This motion is drawn up as an appralsai district suit and involves litigation typical of a suit to determine the vaiue of taxable property under the Texas Property Code. Our bankruptcy attorneys generaily cail upon the expertise of our appraisai district department when litigation involves the Texas Property Tax Code. Bankruptcy Experience Linebarger Goggan's nationwide representation of our clients' interests in bankruptcy cases provides us with the experience necessary to successfully collect debts of any type within the U.S. The fu'm has experience in over 50,000 active and resolved bankruptcy cases, protecting govemmentai clients' interests in amounts in. excess of $250 million in the United States and its territories. Our extensive delinquent property tax and student loan collection experience has resulted in active or resolved bankruptcy cases in all 50 states. To assure that no'opportunity for collection is overlooked, we maintain an active list of local counsel across the nation. This assures a prompt response in a collection environment that is highly specialized, and one that frequentiy demands immediate attention to protect our clients' claims and collect the debt. We have provided a s~ of the activities conducted to date on some of the larger or more significant bankruptcy cases for our clients. America West Airlines The debtor objected in August 1994 to our proof of claim filed in June of 1991 because it was fried as a secured claim for the taxes owed ($456,788.95) and required it to pay interest on the delinquent taxes. Prior to that, there had been no response by the debtor. America West fried a plan for reorganization four days later under Chapter 11. America West attorneys invoked a very specific bankruptcy law clause that asked us to either surrender our lien or asked the court to totally disallow the claim. Our concern was that if the case was later converted from a Chapter 11 reorganization to a Chapter 7 liquidation, our client's claim would be unsecured and therefore not likely to be paid. Nationwide, 75% of the Chapter 11 reorganizations fail. When Linebarger Goggan refused to surrender the lien securing our client's claim, the bankruptcy court turned the objection into an adversary proceeding (February 1996). We filed a motion for summary judgment and the court heard arguments in December 1996. The bankruptcy court ruled against our claim in Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chapter I - Page 11 March 1997, and we appealed to the District Court in Arizona. The District Court affurned the bankruptcy court's ruling in September 1998. An attempt at a negotiated settlement was made in January 1999. Our client refused the offer, and Linebarger Goggan appealed this decision to the 9th Circuit Court of Appeals in San Francisco in February 1999. At the present time only the 1991 taxes remain unpaid; all other years are current. While the bankruptcy court has closed the case, America West remains under the shadow of the bankruptcy court. Montgomery Ward & Company, Inc. Real & Personal Property Taxes Montgomery Wards is the largest single pending bankruptcy case affecting our clients to date. Ward's filed its frrst bankruptcy in 1997. In that case, the debtor objected to ail tax claims and sought reductions of the amounts owed for 1997 taxes. Linebarger Goggan clients' claims were allowed and paid at 100% of the base tax; whereas other clients were only allowed 80% of their tax amounts. Our clients also received interest in addition to the base tax amount. Ward's fried its second bankruptcy in late December 2000 and immediately commenced to close all of its stores. Throughout January and February 2001, our bankruptcy attorneys participated in court proceedings in Wilmington, Delaware to protect our clients' interests. As originally proposed, all of the going-out-of-business sale proceeds were to be paid to a bank lender. However, due to our early involvement in the case, to date, over $4,000,000 in pre-petition personal property taxes have been paid to our North Texas clients since the case was filed. Furthermore, we spearheaded an effort to convince the mortgage holder for most of the real .property to pay the 2000 taxes in March 2001, rather than waiting for the Debtor to pay after the sale of the property. Finally, over $1,400,000 in 2001 personal property taxes was paid to our clients in April 2001. JumboSports This big retail sports outlet filed bankruptcy in Tampa, FL. The debtor fried motions to approve going-out-of-business sales free and clear of our liens. The liens were to attach to the proceeds, but there was no tracking of proceeds or what account they went into. We objected on behalf of: our clients: City of Dallas/DISD, Dallas County (TX), and Jefferson County (TX). Linebarger Goggan also hired local counsel to represent our clients in the Tampa court. The court ordered over $479,000 set aside in a segregated account to adequately protect the claims of our clients. No money can be distributed from this account without notice to our law gu'm, so the funds cannot be diminished, and we will not have to argue issues regarding tracing & co-mingling later in the case. Barry's Jewelers This national retail jewelry store filed for bankruptcy in Los Angeles. Linebarger Goggan tax clients received $213,780 in delinquent tax payments. Only one other law fn-m's clients received interest payments on the claims out of all the secured tax claimants in the country. Linebarger Goggan Blair Pe~a & Sampson, LIP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chapter I - Page 12 Just For Feet We filed on this business personal property in Delaware. We objected to the motion to sell property in San Antonio and E1 Paso. The court agreed and segregated the interest for our Texas clients. As a result, our clients benefited from extra protection on the sale, had specific deadlines for payments, and received interest on payments. While all other claimants were still waiting to get paid, our clients received roughly $195,700 within a few weeks. TAXPAYER ASSISTANCE PROGRAM Our f'n'm has always placed great emphasis on a taxpayer assistance program which complements every facet of our collection activities. We provide fair, equitable assistance to all taxpayers throughout the collection process. Our experience in assisting taxpayers gives us the understanding and the knowledge necessary to resolve tax-related problems for your taxpayers. We employ experienced staff to respond promptly to taxpayer inqui- ries. Our collection activities, and particularly large mailings, generate a huge number of tele- phone calls and letters. Each call or letter presents an opportunity to solve a problem or answer a question resulting in an account being paid. They also create an opportunity to discredit our effort if it is not handled properly. Thus, we place great emphasis on the training and attitude of our "front line" staff. All taxpayers are treated with politeness and professional courtesy. The most advanced technology cannot provide the discretion, judgment, or compassion necessary to support the level of service on which our f'n-m takes great pride. Our approach to dealing with taxpayers' inquiries reflects our keen interest in resolving their personal situations compassionately without undermining the effectiveness of our collection efforts. Information Brochures We distribute a taxpayer information brochure, produced by the State Comptroller's Office, which provides information to taxpayers on their rights and responsibilities. This brochure contains answers to the most common questions that arise when taxpayers receive a notification from us. The easy-to-read brochure is produced in English and Spanish and is available at no cost to the taxpayer. Call Center Well-trained bilingual staff handles all incoming calls. They work with taxpayers to resolve problems and meet help them meet their financial responsibilities. Hardships situations are frequently identified at this point in the collection process. Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chapter [ - Page 13 During peak periods our phone bank responds to scores of calls each day. The nature of the incoming calls varies and includes ownership changes, mortgage company problems, bankruptcy, appraisal problems, exemptions, and hardships. The most common problem encountered is confusion on the part of taxpayers who have paid one entity's taxes but not another's, or vice versa. We provide taxpayers with a single contact point for information on taxes due to the appropriate taxing authorities. Because of our experience in dealing with taxpayers and their related problems, we can provide prompt problem resolution by telephone, saving your taxpayer time and frustration. Correspondence Our collection activities result in thousands of letters on an annual basis from taxpayers who have questions and concerns about their delinquent accounts. All written correspondence received from City taxpayers or representative attorneys will be immediately answered in writing from our office. We place great emphasis on responding to any inquiry in a direct and friendly manner. Hardships Our in-depth collection activities will help us identify taxpayers who need special attention to address their delinquent tax accounts. Our policy is to work individually, one to one, with each taxpayer who may be experiencing a hardship situation. Our primary goal is to design a payment arrangement, according to the City's guidelines, that meets the taxpayers needs and available resources. We also assist the taxpayer in using exemptions and community assistance programs that are available. We will comply with City and tax office policies for handling payment arrangements. Homeowners who may have severe hardships and cannot meet the minimum requirements to comply with the City's payment arrangement program are counseled regarding several alternatives. Homeowners are advised to consider home equity loans, refinancing, and where applicable, homeowners are directed to the Denton County. Appraisal District to apply for an over-65 exemption. Other Taxpayer Services We believe that an effective tax collection program must combine aggressive collection methods with taxpayer assistance and education. The scope of services routinely provided by our f'm'n to taxpayers includes: · Taxpayer education seminars covering the taxpayer's rights and responsibilities, · Taxpayer assistance in obtaining exemptions and in correcting ownership information, and · Assistance to taxpayers facing hardships in obtaining payment arrangements. l_Jnebarger Goggan Blair PeF~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chapter I - Page 14 Payment, Agreements We meet with every taxpayer that requests our assistance. 'Our payment agreement program offers numerous payment plan options for taxpayers with "hardships", based upon how much a taxpayer can pay per installment. This program's flexibility allows us to work with each taxpayer individually, and assists us in reaching agreements amicable to both the taxpayer and the client. Once a payment solution is achieved, two printed copies of the payment agreement are generated and mailed to the taxpayer for signature. One signed copy must be returned to our office in order to validate the agreement. Our system will automatically trigger follow-up in 14 days if a signed agreement has not been received or if a taxpayer falls behind on payments. We monitor payment agreements monthly and have developed a series of reminder letters for those taxpayers who become lax in making payments. We also generate regular reports that reflect the entire history of each payment agreement, including how much is involved, how much is owed, and what collection activities we have undertaken on the account. LITIGATION TAX SALES & SEIZURES Litigation Process A successful collection effort must be consistent. An aggressive, highly visible legal campaign lends vital credibility to the collection process and makes the demand letter and telephone contact program more effective. We choose accounts carefully for lawsuit, emphasizing high dollar/high profile accounts. All accounts that are not capable of being resolved by demand letters or phone contact and are not in bankruptcy or otherwise protected are placed in suit. Our task is to educate delinquent taxpayers on the consequences of disregarding their tax obligations, such as the sale of their property and imposition of heavy penalties, interest, court costs, and attorneys' fees. An efficient delinquent tax collection program makes good taxpayers out of non-paying taxpayers. While we will vigorously pursue all lawsuits we file, we will also make every possible opportunity available to your delinquent taxpayers .to pay their taxes and avoid any additional fees. We will work closely with the tax office to assure that our procedures for lawsuits adhere to' the City of Denton's guidelines. Procedures For Filing Lawsuits Our firm has the capacity to generate by computer as many lawsuits as the' local court system can effectively handle. We prepare the petitions, citations, and address labels Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chapter I - Page 15 (when using service by certified mail) in accordance with the Texas Rules of Court, Texas Property Tax Code and local court rules. Information Gathering Before personal property lawsuits are filed, information extracted from the delinquent tax roll is merged with updated ownership and address data obtained by our address research staff. Our system is designed to prepare literally hundreds of personal property lawsuits within a matter of days. Before filing any real property lawsuits, every account is sent to a title or abstract company for title verification. We then merge the title information, together with the last known address of the defendant, with accounts receivable information, which will be ex- tracted from the City's delinquent tax roils. TAX SUIT PROCEDURES appear Apl~ears -.,b, Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chapter I - Page 16 Production of Legal Documents Prior to actually filing suit, data is crosschecked to prevent the filing of multiple lawsuits against a particular defendant and/or property. Afterwards, our staff generates all legal documents necessary for filing. Verification Procedures Prior to filing suit on any real property account, a complete title report is prepared by either our staff abstract personnel or a qualified outside vendor. The title report reflects all current owners and lienholders as well as their location. If the title report identifies an owner or an address different than the one on the tax roll, we delay the suit and mail a notice of delinquency and intention to file suit. To assure quality control, title information is routinely verified during the course of our collection efforts. We will make available to the City of Denton all title information on real property accounts and ownership information on business personal property accounts that we obtain during our collection efforts. The costs of these activities are handled in accordance With Section 33.48 of the Texas Property Tax Code; the City of Denton incurs no costs. Our attorneys approve all legal documents. The suit numbers, court numbers, filing date, and all defendant data is re-checked. This procedure eliminates filing errors. The lawsuits are then assembled into suit packets ~hat contain a copy of the petition and citation for each defendant, including completed certified mail envelopes as necessary, and a file copy of the document. The documents are hand-delivered to the district clerk's office after assembly and verification is complete. A copy of the lawsuit list is also delivered to the tax office. Legal Notification Procedures Our abstract and title research activities identify the property owner and registered lienholders of real property. When filing a lawsuit, we notify not only the property owner, but also all registered lienholders of the filing of the lawsuit by citation. Often, it is the lienholder who helps secure the payment of delinquent taxes to ensure the protection of the lien. Service of Citations We will work closely with the county sheriff and local constables, as well as with local private process servers to obtain service on defendants as quickly as possible. It has been our experience that fifty percent (50%) of the accounts are paid when the defendants are served; therefore, we place great emphasis on quick, effective service. While the sheriff or constable serves the majority of lawsuits, initial service may be attempted by certified mail. Our firm will provide the district clerk's office with pre-addressed envelopes to assist the clerk's staff in mailing the citation as soon as possible and to ease the workload. Timely Prosecution of Lawsuits We prosecute every lawsuit that we fde as quickly as logistics permit. We have an effective, proven system for service of process and continuing review of pending files for Linebarger Goggan Blair Peffa & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chapter I - Page 17 service on all defendants. Our lawyers and legal assistants utilize a state-of-the-art lawsuit tracking system to monitor and manage the litigation volume that we have undertaken. Once service of process is obtained on all defendants in a particular case, we immediately set that lawsuit for trial. Collection of Judgments by Execution and Sale Real Property At times it becomes necessary to reduce a judgment to sale. Delinquent tax suits are the last alternative to enforce collections. A suit to foreclose a tax lien and permit the sale of a property to recover taxes is a remedy available to all taxing jurisdictions under the Property Tax Code. While selling someone's property is not desirable, it becomes a necessity if other efforts fail. Quality litigation on accounts worthy of suit often produces excellent results and maintains collection momentum as it sends a highly visible message to the public about the need to resolve outstanding tax bills quickly. Pre-Foreclosure Procedures Linebarger Goggan uses non-discriminatory methods in the selection of property for suit, based upon the individual requirements of each client. While we make recommendations from our analysis of the delinquent tax roll and any applicable statute of limitations, we adhere to the guidelines as set out by the client. It is the policy of Linebarger Goggan to order and review title on any real property before filing suit. If our attorney did not f'fle the original lawsuit, as in the case of interventions, title must be ordered and reviewed before we will participate in any judgment taken on said lawsuit. Before judgment is taken or any property is sold at one of our tax sales, our staff is required to update the title to make sure that there have been no changes in the chain of title since the original title review. Because of the potential for liability resulting from judgment or tax sale and the potential for malpractice claims, there are no exceptions to these rules at our firm. With respect to physically inspecting the property, our staff always survey the property in question prior to sale for a couple of reasons. First, a personal visit to the site provides a potential opportunity for locating the owner/occupier and making payment arrangements for delinquent taxes. Our staff are always courteous and professional, and they are often more effective in one-on-one situations than any mailing or telecollection program when it comes to settling actual tax bills. We also insist on site visits in order to determine the actual condition of the property and to familiarize us with the location and potential buyers, in the event a suit is filed, and the property sold at a tax sale. As part of this process, we frequently photograph the site, both for our records and for future advertising at a tax sale if needed. Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chapter I - Page 18 ForeClosure Marketing Program Many properties that have been foreclosed upon by taxing authorities for delinquent taxes are abandoned or inhabited by non-owners of the property. After foreclosure, the taxing authorities own these properties. We aggressively seek to find alternatives to sell these foreclosed properties in order to put them in the hands of responsible citizens who will keep up the property and pay taxes. In the case of abandoned property, we will work with the City to identify potential individuals or organizations that will buy, re-develop and maintain the property. Although we cannot guarantee that a property will sell at a tax sale, we take positive steps to greatly improve its chances. Our tax sales are reliable because we have developed a system that assures all the groundwork has been done prior to any sales transaction, a fact that also helps to get a good price for a property. TAX SALE PROCEDURES Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chapter I - Page 19 Tax Sales Procedures Once we have a judgment, we prepare the property for a tax sale. If there is no f'mal effort to pay the amount due by the delinquent property owner, specific procedures are followed as listed below. We have had considerable success with this program in other areas in Texas. · Files are assembled approximately 75 days before the sale, · Files are carefully reviewed again, to identify any changes, which may occur with the title work, service or judgment on the defendants, · Staff checks for payments or service on all tracts, · Staff checks for recent bankruptcy filings on all defendants, · Notice of foreclosure is sent to all defendants, · Property inspection is conducted on each tract and the owner or resident is contacted.~ If they are not home, a business card is left and the neighbors are contacted. Neighbors are quite often the most likely buyers for tax sale properties, · Commercial property tracts are checked with the local office of the Texas Natural Resources Conservation Commission to see if the property is on any list for known hazardous waste contamination. If the property is listed, it should not be posted for sale, as the potential liability to the taxing unit is much too great if the property gets "struck off", · FDIC properties are checked for lienholder defendants on judgments. If so, the property may not be eligible for sale, · Files are sent to the attorney for review, · Files are turned over to the post judgment department for preparation, · Pages are carefully proofed to ensure accuracy in the Notice and Order of Sale, · Notice and Orders of Sale are delivered to the district clerk's office, the sheriff and to the tax office(s) involved, · Notice of Sale is delivered to the newspaper for publication. The fh'st publication must appear no later than 20 days before the sale, · Bid sheets are sent out to interested bidders, to the sheriff, and tax office, · Staff arrives in advance of the tax sale to inform the buyers of any post-judgment taxes or municipal liens, which may be due outside the opening bid amount on the day of the tax sale, and · Documentation resulting from the tax sale is immediately prepared and filed. Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chapter I - Page 20 PROPERTY LiSTINGS benefit ofthe'publ/c: ybu Cma.S:~m:h.'for' qurren~, li~fi~.'bY ¢gmp!et~:th~ following f0/m. ' ' Do Your Own.Search OR &~isdi~iom Sale Type: A~u~]ged' Vahe: 'i DALLAS Couhrw DurAL COuN-c,,, EL p .A,~OCO'UNTY Et. US COUNTY FORT BEND COU.N'I~_. GREGG' COUNTY ~s coU~rv HIDALGO COUNTY HUDSPETHCOUf~P¢ Tax Sale Property Listings on the Web at www.publicans,com Tax Re-Sales If there are no qualified bids at the tax sale for a particular property and it is "struck off" the City tax rolls, we will regularly undertake to conduct additional sales until the property is sold. Our farm refers to these as "reLsale properties" and operates an active marketing program to return them to the tax roll. A consensus must be reached between all taxing units that levy tax on a re-sale property, as to its minimum sales value. If this is possible, a senes of resolutions can be adopted authorizing one or more or even a committee of representatives of the taxing units to Sign re-sale quitclaim deeds for amounts previously approved by the governing bodies of each taxing unit interested in the property. If this is not possible, the Tax Code provides a method whereby the governing body of any taxing unit interested in the property can authorize the sheriff to sell the property for a specified amount, even if it is less than the amount due under the foreclosure judgment. The proceeds are then divided among the interested taxing units in proportion to the amounts awarded them under the judgment. This is an extremely useful means of returning the property to the active tax roll, once it becomes clear that the property is not marketable for the full amount due. We recognized Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chapter I - Page 21 long ago that it makes very little sense to hold out for sometimes thousands of delinquent dollars, which will probably never be collected, while the property languishes year after year on the exempt roll. However, to obtain the maximum benefits of this alternative requires prompt and thorough preparation and action. We have pioneered this procedure throughout the state, which can benefit the City. We operate a comprehensive tax sales program, including enhanced marketing strategies for the re-sale of any properties that do not sell at tax foreclosure sales. These properties are marketed through the Intemet, real estate offices, and a national list we maintain of interested buyers. Procedures for Tax Re-Sale Properties As with our tax sales, we adhere to specific procedures in order to thoroughly explore all avenues for returning these properties to the tax roll. The following steps are taken once a property is struck off at a tax sale and a sheriffs deed is filed with all appropriate authorities for the affected taxing entities: · Create a re-sale property list and bid procedure outline. Update the list after each tax sale and when re-sale property is sold; · Include the re-sale list with the tax sale bid sheet mailing at least three times a year. Provide the post-judgment department with all phone inquiries; · Put signs up on the property to identify it as a tax re-sale property. Include a contact name and phone number; · Walk the neighborhood around the property to inform local residents of the property's availability; · Secure the property either with locks or contact the appropriate city/county department to board it up, to prevent unauthorized access; · Make sure all local realtors have a current re-sale property list. Ask'to address the group at its next meeting to promote these properties. Put these properties up on the law f'urn web page and link to other rea/estate pages; · Create a "Re-sale Book" of properties for walk-ins; include pictures, maps and copies of the sheriff's bid sheets; and, · Work closely with the client's real estate broker in the advertising and selling these properties. Business Personal Property Collections The most common remedy for personal 'judgment collections on delinquent personal property taxes is a writ of execution with a levy and seizure upon any of the judgment debtor's non-exempt property. The key to a successful execution is identifying through post-judgment discovery procedures which property of the debtor is subject to a levy. Our finn is experienced in this area and will use the appropriate processes to full advantage in these cases. Linebarger Goggan Blair PeFta & Sampson, LIP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chap~rI .Page22 In addition to sale under execution, the Texas Property Tax Code provides for summary seizure and sale of business personal property under the authority of a tax warrant. No suit or judgment is necessary. The tax warrant remedy is obviously a last resort, but there is often no other way to collect the delinquent taxes due on a certain property -- especially if the property is being moved out of the City. We are sensitive to the harshness of this remedy, and would never attempt a seizure without informing the tax assessor-collector well in advance of every move we intend to make. We recommend summary seizures when we believe they are appropriate, and we will execute such seizures when so directed. However, we will not use this collection tool unless the Tax Assessor-Collector specifically authorizes us to do so. SUMMARY SEIZURE PROCEDURES Once it is determined that seizure is necessary, the following procedures are generally followed. No two cases are identical, however, and adjustments may be required as an individual case progresses. · Check bankruptcy records to make sure that the property owner is not in bankruptcy proceedings. There are few events which can cause a taxing trait more embarrassment Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Services Chapter I - Page 23 and exposure to sanction than to seize property ordy to discover that the owner is protected by the federal bankruptcy court; · Inspect the location of the property to be seized prior to applying for a tax warrant in order to verify that the business is in existence and that there is property available for seizure. Our normal procedure is to notify the targeted taxpayer that tax warrants are being filed and that without additional notice, the property could be seized and sold for non-payment of taxes; · Send a notice to the property owner demanding payment and warning that seizure proceedings are imminent unless payment arrangements are made; · Prepare seizure documents, file them with the appropriate court and obtain a court order to begin the seizure. Submit an inspection report to the client; · Coordinate with the tax office and constable's office to schedule a time and date for the seizure; · Arrange for the moving and storage of any property that is expected to be seized in the event an actual seizure is necessary; · Conduct the seizure. The objective is to collect the delinquent taxes due. If the total amount cannot be paid, but reasonable arrangements are possible, we will generally recommend that a payment plan, of limited duration, be approved. Only when it appears that this will prejudice the client's ability to recover in full, the taxes owed, will actual seizure be recommended; · Move any property seized to a secure location that is bonded if necessary, and stored; · Issue a Notice to the property owner and all parties having an interest in the property according to a search of the Uniform Commercial Code and other records on file at the county clerk's office, that the property will be sold at public auction after ten days, unless the taxes are paid; · Determine whether any state agency should be notified, such as the Texas Alcohol and Beverage Commission, if property that is regulated, such as liquor, is to be sold; and, · Arrange for the auction of the property. Publish the notice of the date and time of the auction to promote interest in the sale, and if necessary, conduct the auction as promptly as possible to minimize the storage costs. Success Rate Although the publicity that is normally received as a result of a seizure of property for taxes is of significant benefit to improving collections, the primary purpose of a tax seizure is to collect taxes that, quite likely, would otherwise be lost. We have found that more than 80% of our seizures result in immediate payment of delinquent taxes. We are usually successful in recovering most of the taxes due on the remaining 20% from the sale proceeds. Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. III. Collection Technology COMPUTER RESOURCES AND SERVICES Linebarger Goggan is dedicated to optimizing tax collection efficiency while upholding the highest professional standards. We pioneered the application of high technology to delinquent tax collection when we entered the field over two decades ago. Our representation of the largest taxing jurisdictions in Texas, as well as taxing jurisdictions in Philadelphia, Knoxville, and New Orleans, has led us to invest more than $25 million to develop the very latest, most sophisticated data processing and communications technology for collections. Network Administrators and Oracle Programmer Operations Over the past 25 years, our in-house Information Technology group has developed an automated collection system to manage delinquent tax accounts and other government receivables. To accomplish this task, we have focused on the automation, centralization, security, and standardization of our computer systems. We have our own IBM mainframe and various computer server systems (SUN, AMD, Intel, Dell) and proprietary software developed specifically for use in collecting receivables for our clients. Our system currently manages over $1.1 billion worth of receivables for Texas clients, and tracks over 50,000 related bankruptcy cases throughout the United States. More than 80 programmers and technical personnel support our Information Technology collection operations. No other law firm has duplicated our delinquent tax collection technology. The software applications we have developed, described in more detail below, enable us to continuously meet the changing needs of the tax collection process. Computer Personnel Data Processing This group provides statewide data processing support. Dala processing personnel will read the City of Denton's tax roll and verify the contents of the data by producing a series of random statements for its tax office. Once the City of Denton confams the tax statement information as being accurate, the job will be forwarded to the mailroom team. Data Processing Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Technology Chapter III - Page 2 Tax Mailings This team handles all operations necessary to send out statements pre-sorted and tagged, as required by the U.S. Postal Service. Depending on the type of mailing requested, the process might include special or bilingual notices. This group also macks ali returned mail, which is entered into a special mailroom database, and then given to our research department staff to locate an accurate address. System Architecture MaiIroom Our system is composed of logically organized and easily upgraded telephone and data processing components. Reliable, international fares with an extensive network of local vendors, allowing rapid component replacement or capacity expansion if needed, manufacture all system hardware. Our system is technologically advanced and complex in its capabilities, but it is not complicated to use. Design simplicity gives our system flexibility aad reliability. The system is based on a building block -- or modular component -- principle. Linking modular components together to form ,fully integrated system architecture permits rapid expansion? and planned redundancy, while reducing hardware downtime. Oracle Environment Oracle Production Database Server SUN E4500 Server (HERA) - 6 400 MHz processors with 6GB RAM Two Database instances running Oracle Enterprise Edition 8.1.7.2.0 Oracle Test Database Server SUN EA50 (ZEUS) - 4 400 MHz processors with 4GB RAM One Database instance running Oracle Enterprise Edition 8.1.7.2.0 Oracle Development Database Server SUN Sparc 10 (GSL) - 4 125 MHz processors with 512 MB RAM One Database instance running Oracle Enterprise Edition 8.1.7.2.0 Oracle Production Application Server Intel server (ORFORMS01)- 2 800 MHz processors with 1 GB RAM Oracle Intemet Application Server 1.0.2.2.0 Oracle Production Application Server SUN E450 (ZEUS) - 4 400 MHz processors with 4GB RAM Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Technology Chapter III - Page 3 Oracle Intemet Application Server 1.0.2.2.0 Oracle Test/Development Application Server AMD server (ORFORMS02) - 1 1.2GHz processor with 512 MB RAM Oracle Intemet Application Server 1.0.2.2.0 Oracle Production WEB Server DELL Poweredge 1300 (SAACTIASSERVER) - 2 450 MHz processors with 768 MB Oracle Interact Application Server 1.0.2.0.0 Development Tools Oracle Forms 6.0.8.15.0 Oracle Reports 6.0.8.15.0 SQR 4.3.2.1 IBM System Equipment 1 IBM 9221-170 CPU 6 MIPS 1 IBM 3990-006 Disk Drive Controller 1 IBM 9391-A10 ramac frame IBM 9392-B23 Disk Drives (configured virtually to 32 IBM 3390-3's) capacity for each 3390 is 2.8GB, for a total of 89.6GB 1 Storage Tech 4674 9-track tape drive/controller 1 Storage Tech 4670 9-track tape drive 1 IBM 3480-A22 tape drive controller 2 IBM 3480-B22 tape drive units (has 2 tape drives per unit) 4 IBM 9336-020 FBA disk drives 1 IBM 3274-D41 terminal controller 3 IBM 3179 terminals 1 Xerox 4050 printer (online configuration) 50 pages per minute Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Technology Chapter I[I - Page 4 UNIX/ORACLE SERVER CONFIGURATION Oracle Test/Backup Server SUN Enterprise 450 Server Solaris 8 UltraSPARC-II 296MHZ CPU (4x) 4GB Memory Total Storage: 66 GB Available Storage: 15 GB Hem Production Oracle DB Server SUN Enterprise 4500 Solaris 8 UltraSPARC-II 400MHz CPU (6x) 6GB Memory Total Storage: 72 GB Available Storage: 20 G B Development Oracle DB Server SUN SPARCstation 10 Solaris 7 ROSS 125MHz CPU (4x) 512MB Memory Total Storage: 48 GB Available Storage: 5 GB .: ~,z~.~; :%:~ ~, ~: ,,~-. ~'-~: ~ .... Athena Production Oracle File Server Network Appliance Filer Netapp Release 6.0.1 R3 1GB Memory Total Usable Storage: 182 GB Available Storage: 54 GB Unify DB Server/Load Staging Server SUN SPARCstation 20 Cignus ROSS 90MHz CPU (4x) 384MB Memory Total Storage: 32 GB Available Storage: 7 GB Development Oracle Server [~t SUN 630 MP Solaris 2.5 40 MHZ CPU (2x) 128MB Memory Total Storage: 20 GB Available Storage: 3 GB Lawmaster Hawk Load Staging Server SUN SPARCstation 10 Solads 8 60 MHz CPU (2x) 384MB Memory Total Storage: 13.5 GB Available Storage: 12 GB Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - CoIlection'TechnoIogy Chapter III - Page 5 Proprietary Software Our systems designers and computer programmers have developed special/zed applications, using the latest technology to meet our clients' growing and specific needs for sophisticated software applications. The fruit of our labor has been the development of several proprietary software systems specially designed to support all aspects of delinquent tax collection, including mass and special mailings, research, litigation, bankruptcy, and taxpayer assistance. Our computers can process updates whenever a mailing is done for the City of Denton. This computer system can provide activity reports, identified by specific codes, for the tax databases. Our activity reports can break out a delinquency by year, property category, and collection codes, such as bankruptcy, litigation, etc. Litigation Tracking Software We believe we have created the most effective software system available for the management and processing of collection lawsuits pending in the various court systems. We use a refined on-line tracking system specifically designed for use by our attorneys, para. legals, and litigation assistants to manage lawsuits fried on behalf of our clients. This multi-access system allows litigation staff to query and update all informatiOn regarding defendants, plaintiffs, tax mounts, legal descriptions, account numbers, and the general litigation status of each lawsuit. Functions include: · Monitoring all mailings, · Monitoring the filing of original petitions and other legal pleadings, · Monitoring the status of service of lawsuits, · Monitoring the progress of tax litigation in the court system, · Preparing amended petitions, motions to set for trial, dismissals, judgments, motions for substitute service, citations, discovery requests and responses, affidavits requesting citation by publication, motions to appoint attorney ad litem, requests for orders of sale, orders of sale, sheriffs sale listings, transmittal notice letters and other legal docu- ments; and, · Monitoring account status, including exemptions, pending litigation between the taxpayer and taxing entity, and payment arrangements. All information fi:om the computer-generated plaintiffs' petitions is imported into the litigation tracking system the same day the lawsuits are fried. This system also generates reports that heighten the accountability of our litigation activities and help us meet our clients' collection goals. Bankruptcy Tracking Software Linebarger Goggan's bankruptcy-management software is an on-line tracking and document generation system that coordinates all bankruptcy-related collection activities. The system's centralized file design facilitates the consolidation of multiple client and account cases into one bankruptcy case entry. This consolidation permits easy tracking, quick analysis, and fast Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Technology Chapter III - Page 6 document preparation for pending bankruptcy cases and client accounts on a statewide and national basis. It also identifies accounts dismissed and discharged from bankruptcy that are now ready for collection or lawsuit. Reporting Our firm routinely provides activity reports to our clients detailing our collection efforts within any given repOrting period. Our schedule for reporting is flexible, and is generally set when the client agrees upon a work plan for collecting delinquent taxes. We will provide the City of Denton with the following reports: · Annual Performance Report, · Monthly Litigation Report, · Bankruptcy Activity Reports, and · Special Reports upon Request. Additionally, we will work with the City of Denton to design any other reports deemed necessary. Bankruptcy Reports Preeminent throughout our bankruptcy collection process is the need to keep our clients informed and aware of the significance of various events in a case. In appropriate instances they may pursue state court remedies, annotate their records if taxes are uncollectiblb, or consider other actions based on the information we give them. We accomplish' this by maintaining thorough computer records and communicating regularly with our clients in person, by letter, or by telephone. Legislative/Legal Updates As an additional service in the reporting area, we will always report any significant changes in the property tax law field to you. We will promptly inform you whenever changes in legislation, court decisions, or new roles and regulations promulgated by the Property Tax Division of the State Comptroller's Office affect property tax law or general collection management practices. A recent edition of our law fu'm newsletter, Et Cetera, has been included as Exhibit A, along with a copy of our latest Legislative Report from the last Texas legislative session. Tax Office Data Transfers Our system is capable of sending and receiving our clients' electronic data in many different formats and standards. If the tax office software is capable of Intemet transfer, placement data can be received over the Intemet via Electronic Data Interchange 0EDI) using encryption technology and our frame relay cornrn~mication system. We can also handle a wide variety of file transfer protocol (b'TP) packages. To protect the security of our system and our clients', Linebarger Goggan Blair Pefia & Sampson, LLP in Association with Gregory & Conner, P.C. City of Denton Proposal - Collection Technology Chapter llI- Page 7 we do not allow direct data transfers to or from our main computer system. Our system accepts data transfers twenty-four hours a day, seven days a week. We also accept many electronic tape formats including: · 8mm (with capacity up to 5 GB), · 1/2 Inch nine track @ 1600 5600 BPI, maximum block size 32K standard, · 1/4 Inch streaming tape, · Labeled (standard IBM, Custom) or unlabeled, · ASCII or EBCDIC, and · Fixed record length or variable. We can also accommodate transfer files in most standard PC file structures in addition to client-defined f~.xed length formats. When the account media is received, it is logged into the media receipt log. It is then loaded onto the system using customized load programs tailored to individual client requirements. Wide Area Network/Local Area Network The Houston office is an integral part of the Linebarger Goggan Wide Area Network (WAN), which electronically links all of our offices together with state-of-the-art technology. Our wide area network consists of 49 nodes or offices, connecting our offices to our data center. This network is made up of over 750 personal computers, 47 servers, and 66 routers. The technologies that are employed in our network are Frame Relay, ISDN, T1 lines, and VPN. Geographically, our network spans from as far as Philadelphia, Pennsylvania to E1 Paso, Texas and Jacksonville, Florida. Linebarger Goggan Blair Pe~a & Sampson, LLP in Association with Gregory & Conner, P.C. IV. References On the following pages we have provided references for several taxing entities represented by Linebarger Goggan. A listing of over 1,600 clients is attached as Exhibit B. We invite you to contact any of our clients to discuss our law firm, our collection efforts and' services, and the results we achieve for them. REFERENCE CONTACT INFORMATION City of Denton Ms. Carolene Folse Tax Analyst City of Denton Tax Office 601 E. Hickory St., Suite G Denton, TX 76205 (940) 349-7889 City of Rockwall Mr. Ray E. Helm Chief Appraiser Rockwall CAD 841 Justin Rd. Rockwall, TX 75087 (972) 771-2034 City of Carrollton Ms. Beverly Murphy RTA Tax Assessor Collector 1945 E. Jackson Rd. Carrollton, TX 75011-5125 (972) 466-3127 City of Grand Prairie Ms. Elizabeth WalIey Finance D~rector P.O. Box 534045 Grand Prairie, TX 75053-4045 (972) 237-8067 City of Sherman Mr. Larry Ward Chief Appraiser Grayson CAD 205 N. Travis Sherman, TX 75090-5922 (903) 893-9673 Linebarger Goggan Blair Pefia & Sampson, LLP in Association with Gregory & Conner, P.C. 0=3 '~8 -- E o o~, E ~ ~o I-- E --'1-~ Enron: A Cautionary Tale by John Dillman, Managing Attorney of the Houston Bankruptcy Department and Marguerite Dover M.B.A., Client Services The post-9/11 economic environment is hosting some dark financial forces. The recession is now official. Unemployment is at its highest point in six years (5.8%) while Oct. and Nov. of 2001 had the largest job-loss rate (799,000) of any two-month period in 20 years. County and municipal governments face massive losses in sales tax revenue due to growth in Internet purchases ~EBAI)EUS & ~ (see Figure 1 on Page 3) while city income- tax revenues are grow- ing at their lowest rates in four decades. These forces threaten revenue streams (Figure 2 on Page 8) of the nation's coun- ties and municipali- ties as they struggle to fund essential public services and meet unbudgeted expenses for security and public health measures resulting from the terrorist attacks. Reprinted with permission of Charles Finchar. For more of his work go to wv~v.thodeusandweez.com and wwv. lawcomix.corn. Banlauptcy-as-business-stral~y. Perhaps the most sinister eco- nomic trend facing our clients is the meteoric rise in bankruptcies. Most important to the entities that we represent are the large business bankruptcies which involve large current tax dollars (Table 1 on Page 7). The most disturbing bankruptcy trend we have noticed is the pur- poseful use of bankruptcy by large diversified corporations as a strate- glc business move. Originally designed to restructure failing enterpris- es, bankruptcy (specifically Chapter 11 Reorganization) has instead become a strategic by Charles ~ FlneJler move by companies to shed debt, improve bal- ance sheets, sell assets and write off unused facilities, resulting in corporate bankruptcies that are larger and more numerous than in the past. In 2001, a record number of pub- lic companies (231) filed for Chapter 11 as the country slid into the first recession in a decade. Thirty-six bankrupt companies listed debts in excess of $1 bil- lion - another record. Enron's bankruptcy offers us a cautionary tale. (Continued on Page 3, 'Enron') Dallas County Consolidation Will Save Taxpayers $1 Million Dr. David Childs, Tax Assessor Collector for Dallas County, announced the consolidation of the City of Dallas and the Dallas Independent School District tax collections into the existing Dallas County tax collection program. These two taxing entities join 33 other suburban dties, school districts, and other taxing entities that have chosen Dallas County for the collection of their taxes. The recent con- solidation is expected to save taxpayers $1 million. Additionally, property taxes may be paid online at the site via electronic check, debit card, or Visa, MasterCard, or Discover cred- it card. (Continued on Page 4, '~Dallas County") {L-R) Nancy Primeaux, Regional Manager; DeMetris Sampson, Managing Partner; David Childs, Dallas County TAC; and Daisy Power, Chief Deputy TAC Dallas County Online services. Dallas County residents will benefit from two new services to the ad valorem tax collection sys- tem. Taxpayers can now look up information and answers to frequently-asked questions on the Dallas County Web site at www. dallascounty, org. A large portion of this issue of ET C~RA is devoted to lng phenomena using Enron (the largest bankruptcy ever bankruptcy - and for good reason. Bankruptcy is a national filed) as an example. In our cgmpanion article, BANK- problem of mammoth proportions, with filings at record lev- RUPTCY COURT: THE QUICK AND THE DEAD, bankrupt- els in this country. In the first six months of 200 I, 767,235 cy attorneys David Aelvoet and Beth Weller give compelling new bankruptcy cases were filed (that's 4,000 a day), a pace arguments for the need for that puts 2001 on track to break the previous bankruptcy quick action and'cooperation record of 1.4 million cases filed in 1998. According to when taxing entities become ii ~,~ N~I~, Z Samuel J. Gerdano, executive director of the ,. . American crechtors m a ban~uptcy fil- Bankruptcy Institute (ABD, "The figures for the first half {ng, citing two cases in point · · ~ lot 2001] are alarming, if not shocking." Ventdre- M°ntg°mery Ward and '''~''Y 't~'~g Istores. Both articles ¥~ay so alarming? Our clients (a~d readers) are creditors by desc~be thin'g~s 'creditors can 1 · I m virtue of being taxing units or entities with fees and fines do to greatly improve the receivables, who know from sad experience that when a chances of successfully col- I bankruptcy filing happens, a whole new set of rules is lecting taxes in a bankruptcy ' ~_ ___ l' '_ ~ · imposed on the collection of government receivables, situation. I~l~ Suddenly, current-year ad va/orem taxes are subject to the administration of a bankruptcy court, where anything can While a slowing economy happen - much of it bad. means more delinquent accounts, a recession will ~ Bankruptcy isa highly technical, fast-paced and difficult surely mean more bankrupt- area of the law that has long been known aa a refuge from cy filings. With corporations creditors. [t is popular because of the impressive cache of starting to use bankruptcy as powerful tools it offers debtors. For examph, bankruptcy a purposefld business strate- gives a debtor the ability to 'stay';or postpone the resolution gy, we are already seeing of a lawsuit by simply filing a bankruptcy petition. It also higher-profile bankruptcies _ allows.a debtor to delay a delinquent-tax judgment in state with' millions of ad ~alorem court, stop a tax sale about to go on at the courthouse steps, tax dollars at stake. Just avoid a.state court lawsuit altoget~r-by, fillng, before, the~red- days-ago~ Global Crossings itor files its lawsuit, sell assets, shed liabilities and set' aside,Ltd. became the fourth- -- Sim Evans, Partner (or renegotiate) unfavorable'union contracts and leases. ~argest company to file for . oan~uptcy untt~ assets ~n It gets worse. A bankruptcy court can revisit prior-year taxes excess of $22.4 billion. As against the debtor and reduce them or forgive them altogeth- we go to press,' one more er by deciding that the taxable value of property is too high bankruptcy record falls with Kmart's filing for Chapter I 1 - (even if the debtor ignored the remedies available by state the largest retailer to ever seek bankruptcy-court protection. law). Fortunately for our clients, the lien rights associated With 2,114 stores and $17 billion in assets, this case, like with property taxes generally have priority over the rights of Enron, will be felt by many of our clients. Our hope with this other creditors. However, in bankruptcy court taxing entities issue of ET CETERA is that taxing jurisdictions will heed the must also fight other credit,o, rs for their rightful piece of the alarm and be better prepared to fight for tax dollars needed p~e - known as the"estate - making adversaries of other, to provide essential community services. creditors as well (For more on taxes, see Rep. Rene Oliveira's article TEXAS TAXES SHOULD BE FAIRER on Page 6.) The traditional view of bankruptcy - as a bone yard for failed dreams - is giving way to a disturbing trend of large, · eg3; to reduce corporate-liabilitie~ and enhance their bottom Jim Evans lines, effectively gaining competitive advantages over other companies. This strategy is increasing both the number and the size of bankruptcies (Table 1 on Page 7). In their feature article ENRON: A CAUTIONARY TALE, bankruptcy attor- ney John Dillman and Marguerite Dover describe this grow- 2 Et Cetera fl I] I) I) I I I I I I I I I I I "Enron' (Coninued from Page Largest bankruptcy case in history. Enron's case is the largest and most complex bankruptcy ever filed, with $60 bil- llon in assets and $40 billion in liabilities. It looks like it will also be the most investigated bankruptcy ever. No less than eleven congressional subC°mmittees and three government oversight agencies (Departments of Justice, Labor and the SEC) are looking into allegations of criminal behavior, com- mercial fraud, insider trading, inaccurate and misleading dis- closures, unlawful accounting practices, and illegal partner- ships used to keep debt off their books. Everyone wants to know why Enron executives were able to cash in $I billion in company stock prior to Enron's problems being made public while investors lost $ 1.2 billion and employee 401 (k) plans lost $850 million - a theme captured in the Tadeus and Weez metaphor depicting Enron executives jumping to safety in their golden parachutes while creditors go down with the ship. Mission impossibh. Beyond its sheer size, this case, or more correctly, these cases (since approximately 35 Enron affiliates have filed bankruptcy) are made extremely difficult to manage because of the complexity created by several ele- ments: Enron~s numerous subsidiaries; the numerous accounts owed by all of these subsidiaries; the fact that not all Enron entities are in bankruptcy; the fact that the Debttrs were in many varied businesses; and the Debtors~ shopping around for a favorable out-of-state bankruptcy court. Before filing claims for current-year taxes against Enron in bankruptcy court, tbese.compleadties had to be sorted out and thoroughly understood - and very quickly, too. What's in a name? Like most empires, Enron's kingdom was built with many smaller pieces. Unfortunately, some pieces of this empire have names that suggest no ties to Enron, and many are in far-flung locations. As a result, we have had to spend a great deal of time researching entities and ownership. These subsidiaries each tend to have multi- ple accounts, many with no outward hint of Enron involve- ment. Some of these entities worked in the' traditional Enron 0il-and-gas arena, others in power trading and still others in everything from water treatment to broadband services. These things made research on our clients' systems more dif- ficult. Many, but not all, of these entities filed bankruptcy, further complicating our task of determining what accounts should be included in the bankruptcy cases, and what should be collected otherwise. Additional waves of filings. Even more troubling are the subsequent waves of Enron f-dings taking place, with 22 additional entities placed in bankruptcy since the initial filing on December 2, 200 I. Because of this, we must continually watch for additional entities filing for bankruptcy so that we may update our claims quickly. ~nally, Enron's choice to file bankruptcy in New X/brk further complicates matters, and means that litigation becomes more difficult and expensive because it takes place in another state. In fact, our firm is one of many parties that asked the court to transfer these cases to Houston - a request that was denied. In our Houston office alone, we filed claims in excess of $3 million within two business days of Enron's bankruptcy. Fortunately, almost all of these dalms are for current-year taxes, giving them a higher priority with the bankruptcy Figure 1. 2001 Tax Dollars Lost to Internet Sales $1.2 billion $932.2 million TX FL Source: National Assoclac~oa of Counties ;446.4 million LA TN PA court. Of all the parties owed money by Enron in these cases, the taxing authorities will likely fare better than other creditors. Mechanism for shedding liabilities. There is no doubt the Enron cases are significant in and of themselves, and we can only hope that they don't come along very often. But beyond the reasons for Enron's demise, these cases are significant because they represent a growing trend of more complex business bankruptcy cases with higher dollars at stake. Bankruptcy has gone fi.om the graveyard for insolvent enti- ties to a mechanism for corporations to shed large liabilities and emerge with substantial competitive advantages over their competition. Bankruptcy has been transformed into what is being called a 'business strategy' to obtain dear tide to assets to facilitate sales that could never have been arranged without it. The bad news for us is that these types of cases mean our clients have more dollars at stake at any given time and that the level of legal sophistication required in handling the situation is enormous. The good news is that (Continued on next page) (Continued from previous page) we are more likely to recover these dollars in large cases with significant assets (see accompanying arti- cle, BANKRUPTCY: THE QUICKAND THE DEAD). Lessons learned. The things we need to learn from this business debacle are not necessarily the Enron- specific lessons. Instead, the lessons are about this broader, more general trend of bankruptcy-as-busi- ness-strategy that can put millions of tax dollars at risk. We know there are things we can do to improve our chances for success in the bankruptcy setting: it is critical that appraisal districts keep accurate accounts with current account-holder information and values. The Enron cases also show us how crit- ical it is for accounts to be set up to adequately track related entities as well. Finally, taxing entities need to be vigilant in watching news sources for new bank- ruptcy filings and to call us immediately when it looks like a business is dosing. In other words, bank- ruptcy cases need to be approached with a level of attention and sophistication that may be new to some. Fortunately, we are prepared to meet the chal- lenge of bankruptcy-as-business-strategy as the econ- omy and this area of the law continue to evolve. ~' Mark Pre, Houston Office Bankn~ptcy Manager, also con- tributed '~o this article. "... Bankruptcy cases need to be approached with a level of attention and sophistication that may be new to some." -- John Dillman,.Bankruptcy Attorney "Dallas County" (Continued from Page 1) Faxed property tax account information. County taxpayers may also obtain a faxed tax statement detailing their property tax information via the new Interactive Voice Response (IVR) system. When calling IVR [214/653-7824], taxpayers: are prompted to enter an account number and fax number; the system automatically responds by faxing back information for that account. The IVR is currently being accessed an average of 200 times per day. New peasonnel. In addition to these new services, Dallas County also welcomes new leadership to their office. Daisy Power has assumed the role of Chief Deputy Tax Assessor Collector and Steve Stanford has been hired as the Controller. Both Daisy and Steve Came to Dallas County from Jefferson Wells International, where they assisted Dallas County in the implementa- tion of the consolidation for the past year. Prior to that, Daisy Power was a member of our law firm for over twelve years, hav- ing served as the operational manager for our San Antonio office and the deputy director of our Information Technology group. We are proud of Daisy and wish her all the best in her new position with Dallas County. We at the Linebarger Law Firm are excited about the coming tax year and the innovative and technically advanced improvements to the tax collection sys- tem that Dallas County has implemented. ~t' Joe Hubenak July 2, 1937 - November 14, 2001 Our heartfelt condolences go out to the friends and family of joe Hubenak who died on November 14, 2001 after a long battle with cancer. We are all so saddened by his passing and our thoughts are with his wife, Sandra, and with their children. Joe Hubenak led a long and distinguished career of public service and was a member of the Lamar Consolidated Independent School District board of trustees at the time of his death at the age of 64. Hubenak served Fort Bend and Brazoria counties as a member of the Texas House of Representatives from 1968 to 1979 and is remembered for his many contributions to his community. He held a wide variety of positions in organizations as diverse as the March of Dimes, the Knights of Columbus, the Texas National Guam, the Fort Bend County Fair .Association and the Board of Pardons and Paroles of the Texas Department of Criminal Justice. His accomplishments include his successful effort to create the 6,000- acre Brazos Bend State Park and the passage of legislation that created benefits for sur- vivors of volunteer firefighters killed in the line of duty. Managing Partner Bill [<.ing reflected on [qubenak's death: "Joe was always an absolute gendeman. I considered him a friend and will miss him - this wodd would be a better place with more Joe Hubenaks in it." Partner Mike Siwierka remembers Hubenak with fondness: "I met Joe at the Fairgrounds years ago when he was the agricultural extension agent. He came over to meet me, a face he didn't know. We became immediate friends and enioyed going out for Chinese food during our lunch hours over the past couple of years. Joe was someone who you could real- ly know after just meeting him for the first time. No hidden agendas, nothing but sincerl- ty. I liked him as an older brother and will miss him dearly. He had a presence about him that extended far beyond his horoe of Fort Bend County." Attorney Vince Ryan spoke for all of us who knew Joe - "Joe was a big man with a big heart. Heaven will finally be a place equal to him." '~ Joe Hubenak · '... this World would .be a better place with more Joe Hubenaks in .. William E. King, Managing Partner Kaufman County TAC Honored Kaufraan County TAC Donna Sprague was named 2001 Tax Assessor-Collector of the Year by the Tax Assessor Collector Association (TACA.) at their November A&M conference. Donna has been the Kaufraan County TAC since January 1985, where she collects taxes for Kaufman County and 25 other taxing jurisdic- tions. Other awards garnered by Donna include the 1988 Super Texas Award from the Secretary of State; the 1990 Outstanding Service Award from the Secretary of State; the 1991 Yellow Rose of Texas Award from Governor Ann Richards; and the 1992 City of Terrell Mayoral Award. Our congratulations go to Donna for these honors in recognition of her professional contributions to her field. ~ TACA Tax Assessor-Collector of the Year Donna Sprague, TAC Kaufman County and Austin Office Manager Bob Caudill. Et Cetera 5 / State Representative Ren60. Ollveira Texas Taxes Should Be Fairer by State Representative Ren60. Oliveira, Chairman, House Ways and Means Committee When my son earned his driver's license, I bought him a car. It was nothing fancy, just basic, safe transportation, but he was quite pleased that he no longer had to rely on "dear old Dad" to take him places - especially those places where Dad might be seen. Before he got the car, he made all the right arguments. He could help out w/th routine errand running; he could take his sister places, so I would not have to; he had always been responsible; and he made good grades. Now my daughter is nearing the age when she becomes eli- gible for a driver's license, and she wilt, no doubt, want a car, too. She will, undoubtedly, use the same arguments her brother used to prove she deserves a car. She figures it's only fair that she gets a car because her brother got one. As every parent knows, fairness does not buy cars, money does. If, for some unforeseen reason, I cannot afford to buy her a car, she probably will not get one. Is that fair? No. But, if after paying for groceries, the house payment, and utility hills, there is no money for another car and insurance, fair- ness will not matter. While the beneficiaries of those tax-cutting and spending ini- tiatives are like my son, many others may be like my daugh- ter. They have viable arguments for equal treatment, but whether they are treated equally will depend on whether money is available. I am fairly certain I'll be able to afford the cost ora car and insurance for my daughter, but changing our tax structure to treat all taxpayers fairly is a very different question. ! tell you this story because in many ways it is reflective of the state's budget and our tax structure. Some taxpayers are like my son. When they request a new program or a tax cut, they demonstrate not only a benefit to themselves, but also a ben- efit to the general public. Recently, the Legislature has reduced taxable-value on homesteads to reduce increases in property taxes. That has reduced state revenues by about ~2 billion over the last four years. We also created the sales tax holiday just before the start of the school year to lessen par- ents' costs when buying school clothes. We also created franchise tax credits for businesses that create jobs or invest with- in counties that have above-average unemployment and below-average income. We enacted these measures I~ecause we felt they offered the best return on invest- ment for our state. The return is not measured in payback to the state budget, it is measured in improving the quality of life in our state. For example, reducing property taxes enables more people to own homes. The sales tax holiday makes it easier for parents to better provide for their children, and franchise tax credits create jobs more valuable than the amount of the credit. At the same time, we have also spent money on some important new initiatives. We invest heavily in low-cost health insurance for the children of poor working families. We also have improved health insurance for our teachers. These initiatives benefit two very important groups in our state. Our tax system has some unfairness built into it. For exam- ple, our sales tax, which is our largest tax, is extremely regres- sive, meaning that poorer people pay a much larger percent- age of their income to this tax than do wealthy people. The tax is not based on one's ability to pay, it is based on what one purchases. Our property tax also has fairness issues. There are many people, like those with fixed incomes, ~who every year see their taxes increase because their property values go up, but earn no more money to pay those additional taxes. The prop- ezty tax is also unfair to capital-intensive industries - those requiring huge investments in equipment and buildings for manufacturing products. Regardless of whether these busi- nesses are profitable, they pay huge amounts in property taxes, while some very profitable knowledge-based business- es, like lawyers, accountants, and software engineers, pay very little because the property these businesses own is just a few personal computers. Texas taxes the telecommunications industry and its cus- tomers more heavily than any other state in the country. The severance tax and the property value assessment system hits the oil and gas industry so hard, most companies find it cheaper to look for oil and gas in the deep waters of the Gulf of Mexico than in deep South Texas. The franchise tax is a tax on a corporation's gross receipts. Corporations pay the tax, but competing partnerships and sole proprietorships do not. Texas is expected to lose almost $300 million in 2002 and 2003 as corporations become partnerships just to avoid the franchise tax. While these fairness issues need to be addressed, the Comptroller of Public Accounts says 'that Texas may be $5 billion short of what will be needed to pay for all the pro- grams that currendy exist when we construct the state budg- et for 2004 and 2005. Cutting some spending can close the gap, and a quick economic recovery could increase revenues. But, almost assuredly, there will be calls to spend more on education, law enforcement, fighting terrorism, prescription drugs, and many other programs. These calls come with a caveat: improve these programs, "but don't raises taxes." If the economic projections hold true, Texas wilt face some very difficult decisions. We want to be fair and treat taxpay- ers equally, but can we afford to reduce taxes for the most overburdened, while not increasing taxes on others? The question will test everyone's resolve. '~ -Bankruptcy Court ' the Quick and the Dead .by Partners David Aelvoet and Beth Weller Although the Linebarger Law Firm is well known for suc- cessfully collecting delinquent taxes and other delinquent government receivables, few realize that our attorneys also collect current-year taxes when businesses declare bankrupt- cy. Last year alone, the bankruptcy department collected $6 million in current-year taxes from just a handful of cases managed by our firm - money that would likely go uncol- lected without the quick intervention of our bankruptcy attor- neys. Bankruptcy alert. Collection of tax dollars in the bank- ruptcy forum is risky; and the recent surge in bankruptcy fil- ings, up 20% in 3rd Quarter 2001 over the same period in 2000, has compounded the financial exposure for local gov- ernments. Worse yet, it comes at a time when local govern- ments are struggling with the dual problems of declining enues and unbudgeted post-9/11 expenses (see ENRON: A CAUTIONARY TALE on Page 1). In fact, the nation's cities have spent more than $1.5 billion on additional security and public health measures since the terrorist attacks. Add to that the disturbing trend of bankruptcy cases with assets exceeding $1 billion (Table 1) and the amount of tax dollars at risk becomes significant. To preserve their revenues in this environment, taxing entities need bankruptcy collection pro- grams that are aggressive, comprehensive, responsive and quick - especially when it comes to collecting current-year taxes in bankruptcy court. the sell-off of assets creates an urgent need to get into court quickly in order to protect our clients' lien interests in the property itself, and to safeguard the sale proceeds by seeking immediate payment and/or an escrow of an amount equal to the tax debt. Being .slow to get into court could mean that the debtor's assets (and the money from their sale) are gone. Cases in point. Montgomery Ward's second bankruptcy fil- ing is an example of why speed is so important in this legal arena. Within just four months of filing, Montgomery Ward was able to dispose of all of its inventory and other personal property assets; and within twelve months they sold most of Bad news/good news. In the past, some bankruptcy courts viewed current-year taxes as a post-petition debt that the debtor would eventually have to pay in the ordinary course of business, while other courts pro-rated the taxes for the year based upon the date the bankruptcy was filed. A ruling by the Fifth Circuit Court several years ago resolved this issue by declaring the entire current-year tax as a pre-petition debt - thereby placing current-year ad valorem taxes at risk by now being subject to repayment through the bankruptcy process. This was bad news in that a bankruptcy court could now order tax money destined for public coffers to be reduced in amount and even subordinate its payment to the claims of junior creditors. As a result of this ruling, the col- lection of current-year taxes has become a critical component Of our bankruptcy operations. But the court's ruling also has a silver lining to it. The good news is that it allows local taxing jurisdictions to immediate- ly join in the bankruptcy proceedings while assets are being divided up and to take legal steps to object to any action that would compromise the collectibility of their revenue. Timing is everything. As with most things in life, timing is everything in a bankruptcy proceeding. When a business files for Chapter 11 (reorganization) bankruptcy, debtors routinely begin selling assets while creditors rush into court to ask that their debts be prioritized above those of other creditors. This competition among creditors combined with their fee title prOperties as well. Aware of the likelihood of this speedy sell-off of assets, within the first month of Ward's bankruptcy filing, two Linebarger attorneys flew to Delaware (where the case was filed), hired local counsel (required to take part in local court proceedings) and appeared in bankruptcy court to preserve our clients' finan- cial claims. As a result of this quick intervention, our clients were paid $1.4 million in 2001 personal property taxes alone, with most of this money disbursed to the respective tax units prior to June 2001 (several months prior to the year 2001 taxes even being billed). Similarly, in Payless Cashway's second bankruptcy, a Linebarger attorney went to Kansas City and fought for the prompt repayment of our (Continued on next page) Et Cetera 7 8 Et Cetera (Continued from previous page) dients' tax daims upon the sale of the property rather than wait an indeterminable amount of time for payment until the bankruptcy process was complete. Adding insult to injm3'. But there are other ways for bank- ruptcies to siphon off:tax dollars. Debtors often come to court seeking a redetermination of prior years' taxes based upon overvaluation. Debtors may even seek a refund of taxes paid years earlier. In these cases, we defend valuations set by appraisal districts (whether we represent them or no0 for the tax years in question, sometimes going back over 10 years. These revaluation actions require a joint effort on the part of Critical client collaboration. Our firm has a dedicated bankruptcy department w/th experienced attorneys, talented support staff and state-of-the-art tracking systems that help us protect our clients' interest in bankruptcy forums across the United States. Alone, it's not enough. Our clients play a critical role in bankruptcy cases. We appreciate tax offices and appraisal districts willing to work with us on short notice to make sure claims research is accurate and prompt. Client collaboration makes all the difference in keeping up with the fast-paced maneuvering in bankruptcy court. Bankruptcy reform. We continue to mount an aggressive effort to bring about reform to the tax provisions in the tax attorney, the tax office and the apprais- al dist/ict to protect local government ~ 2. the United States Bankruptcy Code. revenue by making certain that Avera~e COIilI~'y R. evellllle Sources We feel it's important because the tax dollars asked for in current provisions can, and court are sufficient. In 1994, a debtor in a Fort Worth case sought a refund of all taxes paid for the years 1980 - 1989. Fortunately ~r our clients, we were success- Fen~, User Fees ~.~.r~ ~.,~, ~. 9% t3%' Federal Gov. Palm,ems 20% rial in defending against this proceeding. But the tactic persists -Venture Stores is c~arrent- ly seeking a refund of taxes paid two years before it filed bankruptcy. After extensive written and oral argument by Linebarger attorneys, including appearing in court in Delaware, we prevailed in the lower court and the case is now pending before the Third Circuit Court of Appeals in Philadelphia. 18% No man is an island. No one operates in a vacuum. Our success in the Montgomery Ward's case was insured by the close cooperation of various appraisal districts throughout the state who helped us by making sure that the dollar amounts asked for in court would cover the tax bill. This makes Montgomery Ward's case an excellent example of the impor- tance of having a close working relationship with the apprais- al district in order to assure maximum recovery of tax rev- enues. do, limit the recovery of local government tax revenue. Each day Fra~rt'~ Tax~s that passes without 400/0 reform potentially compromises the recovery of mil- lions of tax dollars. Those wishing to sup- port reform are invited to contact your Congressional Representatives and Senators to ask them to take immediate action to pass the tax provisions in the bankruptcy reform bill. We will keep up our reform efforts to create changes in the Code to better protect client receivables. Meanwhile, we will continue to show up in bankruptcy court to vigorously fight for tax dollars destined to fund vital pub- lic services. 'Ilk" For more information on Bankruptcy Reform efforts, contact Partner Beth Weller in our Dallas office at (214) 880-0089. There is strength in nm~bers and in a united front. In the bankruptcy world, we routinely ally ourselves with other firms and their clients, including our competitors, in order to show there is wide-spread support for our position in court. These effo~ not only aid our dients, but also maximize recovery of taxes for tax units represented by other counsel. It is our policy to cooperate with the handful of Texas tax jurisdictions we do not represent, as well as with out-of-state taxing entities, including jurisdictions in California, Utah, and Colorado. These alliances help impress upon a bank- rupt debtor that the legal position of taxing entities is credi- ble and that the issue of current-year tax obligations is one they'll have to deal with promptly if their bankruptcy case is to proceed smoothly. 1 1 1 1 1 ! ! 1 I I I I I I I I I I I Too Young for Jury Duty?. How old do you need to be w serve on ajuw in the state of Texas? Surprisingly few people can answer that question with any certainty. Most are amazed to learn that 1 g-year-olds can be called to jury duty - which is why the Ed Rachal Foundation, a non-profit organization in Corpus Christi, funded a 25-minute educational, video proj- ect on the topic for Texas high school students for the purpose of encouraging young adults to participate in the jury system. Ernest C. Garcia, a new attorney with Linebarger's Austin office, gave an on-camera interview in the Austin office's law [ibrary for the production company filming the project. Garcia is a former State District Judge for the 126th Judicial District Court where he presided over civil proceedings including family matters, business cases and contract disputes. First contact. "The concept of the video fell in line with my philosophy of offering a friendly approachable person for youngsters having their first contact'with the legal system," Garcia explained. No stranger to creating education- al opportunities, he has hosted elementary school children, high school students and Boy Scout Troops in his courtroom over the years, holding mock trials and speaking to kids as young as eight years old. When speaking to students, Garcia sheds his judicial robes and adopts a casual, accessible attitude. "This may be a child's only contact with the court system, and I purposefully try to demystify the field of law in the hopes of opening the door as a career option to children who may come from backgrounds where the law is not coasidered a career possibility." Jury impacts fairness of decision. In his expe- rience on the bench, Garcia estimates that fully one-third of those summoned to jury .duty fail to show up, preferring, instead, to take their chances with a contempt citation that can cost anywhere from $100 to $ 1,000. "The jddlcial system in the U.S. provides for a court trial with a jury of our peers. It can impact the fairness of the decision in a court case. If the system is to work, we need all segments of a community to participate so that a jury of peers is possible. This includes young adults." Qualifications for jurors. Jury pools are gathered from two sources: voter registration roles and drivers licenses. There are eight qualifications necessary to sit on a jury: 1) must be 18 years old; 2) a citizen of the state and county in which he is to serve as a juror; 3) is qualified to vote in the county in which he is to serve; 4) is of sound mind and good moral character; 5) is able to read and write; 6) has not served as a petit juror for six days during the preceding three months in the county court or during the preceding six months in the district court; 7) has not been convicted of a felony; and 8) is not under indictment or other legal accusation of misdemeanor or felony theft or any other felony. Pictured: APCO Worldwide video production crew members with Linebarger attomey Ernest C. Garcia in the Austin office's law library - {L- R) Rob Davis, Chris Philips, Ernest C. Garcia and producer Marilyn Fancher. The video production company, APCO Worldwide, also interviewed a court clerk, an attorney and past jurors for the project. The finished video will be shown in public high schools in Corpus Christi where Garcia grew up and where his mother teaches at St. Patrick's Catholic School. Taking the responsibility seriously. '%Ve have the privilege of living in the United States with all the rights and civil liberties that come with that. However, with these rights come responsibilities, and it's disappointing to see just how apathetic we are about fulfilling the responsibility of jury duty. Hopefully, this video will impress on young adults how important it is to take that responsibility seriously." 9* 9 Firm Defends Against Novel Legal Arguments Each and every day we contend with constant changes in the field of delinquent government collections. Our attorneys, how- ever, have always been able to count on one thing - the imaginative, albeit pitiful, legal arguments delinquent taxpayers (and fees and fines debtors) come up with to avoid discharging their obligations. The two cases summarized below are recent exam- pies of our passion for defending challenges to our clients' right to collect government receivables. Although these two court victories were over relatively small amounts of money ($439.00 and $27,166.19), they represent our guiding strategy of not rolling over when scofflaws come up with novel arguments to avoid their financial responsibilities. Defending such challenges in court is a distinguishing feature of our commitment to our clients. SMITH VS. LINEBARGER Mr. Sam Smith (not his real name) of Hamilton, Texas was issued a traffic ticket for driving a trailer with excessive tire wear on both left-side rear axel tires. After failing to appear for his court date on this matter, the Justice of the Peace, Precinct 3, Bell County, Texas, issued a warrant for the arrest of Mr. Smith for the offense of failure to appear. The plot thickens. On August 10, 2000, a Warrant Notification was sent to Mr. Smith, informing him that a warrant for his arrest had been issued and that he could resolve the matter by any one of the following choices: (1) pleading guilty, waiv- ing appearance at trial and paying a fine of $439.00, (2) pleading nolo contendere, waving appearance at trial and paying a fine of $439.00, (3) pleading not guilty and requesting a trial date, or (4) stating that he had previously entered a plea or a judgment had previously been rendered, and paying a fine of $439.00. The notice bore the facsimile signature of Dale Linebarger and the name of the taw firm. The offense for which Mr. Smith was charged was dismissed at a trial on November 14, 2000. He paid no fines or court costs at the time of the dismissal. See you in court. On August 9, 2001, an attorney in Hamilton, Texas filed suit against Dale Linebarger and the law firm on behalf of Mr. Smith. la that suit he alleged that (I) the amount which Mr. Smith allegedly owed to Bell County was a "debt," (2) Bell County was a "creditor," (3) Mr. Smith was a "consumer," and (4) the Defendants were "debt collectors," all as defined in the Federal Fair Debt Collection Practices Act. Based on this argument, the Debtor contended that the Linebarger Law Firm had no right to colta:t this money owed to our, client. Oh yeah;? The Defendants filed a motion to dismiss Mr. Smith's suit for failure to state a claim upon which relief could be granted. In that motion, the Defendants argued that not all obligations to pay money are "debts" within the definition of the Fair Debt Collection Practices Act. They argued that the overwhelming weight of authority from the United States Courts of Appeals holds that creation of a "debt" within the scope of the Act requires the creation of an obligation to pay money as the result of a transaction to ~tcquire goods or services primarily for personal, family or household purpose. Based on those cases, the Defendants argued that being given a trafiq, c ticket for excessive tire wear and then having an arrest warrant issued for failure to appear on the traffic ticket did not qualify as commercial transactions by which Mr. Smith received any goods or services primarily for personal, family or household purposes. Therefore, the obligation which the Defendants sought to collect was not a "debt," Mr. Smith was not a "consumer," and the Act did not apply to the case. Case dismissed. The federal court dismissed the case on October 18, 2001, and Mr. Smith did not appeal the ruling. CITY OF EL PASO VS. ROBERT RIDELL ........ On March 16, 2000, a trial court entered a judgment in favor of the City of E1 Paso, Texas for delinquent taxes in the amount of $27,166.19. Mr. Robert Ridell (not his real name) appealed the judgment claiming that it was defective because the City had failed to join certain necessary parties, the statute of limitations had passed, and that a personal judgment could not be rendered against the defendant in the tax suit. JudL~nent upheld. On November 20, 2001, the Honorable Chief Justice Richard Barajas, of the Court of Appeals, issued an unpublished opinion overruling all three legal issues raised by Mr. Ridell and affirming the lower court's judgment. See you in cou_,t - again. Mr. Ridell recently filed another lawsuit against the City based on its collection efforts in this case. The case is now before the Honorable Sam Paxson of the 210th Judicial District Court. True to our strategy, collec- tions efforts have resumed in this matter and we'll be in court to defend our client's right to collect what is due. The recent decision by the Eighth Court of Appeals should go a long way towards helping us do just that. 9~ I) [ ii t It I1 I1 [ I I Recent Appointments Managing Partner DeMetris A. Sampson was recently appointed to the Dallas Chamber of Commerce Board of Directors. Mana m Partner Mike $iwierlm of our Houston office was recently appointed Legal Counsel for the Fort Bend g' g Chamber of Commerce. He will also serve as an ex-officio member of their Boar_cl. M!ke ha~s b~ee, n a, resid.e?t Partner . of Fort Bend County since 1983 and is also active in the St. Laurence Knights os ~otumt~us, me DeMe~'ris A. Sampson Brazoria/Fort Bend County Rural Railroad Commission and the Fort Bend Business Alliance. ~ Partner Barbara Williams of our Fort Worth office has been appointed as a Business Rep_r.esentauve to the Partner Mike ~ Site Based Derision Making Committee at Arlington High School xn Arlington, -Ikxas. Ihe twenty-mem- ~ Campus Improvement Plan to assess the academic achievement for each student, set the campus performance Siwierka ~ ber committee is mandated by Chapter 11 of the Education Code to assist the principal in developing the ~ objectives, and identify the campus goals including parental involvement and violence prevention. Williams ~ will serve a two-year term in this position. , E PB~rrtbnaerra Attorney Ernest C Garda of Austin has been appointed to the board of directors of the Women's Advocacy Williams Project, Inc. Among the servlc~s this statewid¢ non-proilt orgamzauon pro,~&s are legal re~rc%f.]r wo~men and their children who have been victims orr family violence or physical abuse. About o:~ Jo oF me texas women served l~y this organization fall below the national poverty guidelines. Garcia will be one of only two men appointed to serve on the board of directors. Over 300 attorneys in Texas volunteer to give free legal consultations to women seeking advice on matters such as consumer problems, landlord/tenant disputes, and Attorney employment discrimination law. Their Family Violence Legal Hot Line number is: 1-800-374-HOPE. Ernest C. Garcia David Aelvoet work~ out of our San Antonio office managing our Bankruptcy Collection Program. Sharon Humble manages our Philadelphia office. Mike Siwierka is based in our Houston office and is the attorney for the Southwest Team as well as manager of our Richmond office. Et Cetera 1 1 et cetera... LINEBARGER GOGGAN BLAIR PEflA & SAMPSON, LLP P. O. BOX 17428 AUSTIN, TEXAS 78760 ADDRESS SERVICE REQUESTED ©2002 Pres,or{ Stand.ard US Postage Paid Permit #518 Austin, TX PROVIDING PROFESSIONAL COLLECTION SERVICES FOR STATE & LOCAL GOVERNMENTS ~. FEDERAL AGENCIES SINCE I 976. O TACA A&M Seminar The V. G. Young Institute of County Government at Texas A&M hosted the 19th Annual County Tax Assessor-Collectors' Continuing Education Seminar on November 12-14, 2001 at the Hilton College Station & Conference Center. Over 240 County Tax Assessor-Collectors and tax office personnel from across the state attended. The training was conducted as a program of the V. G. Young Institute and the Texas A&M University System, in cooperation with the Tax Assessor- Collectors Association of Texas (TACA) and the Office of Continuing Education of Texas A&M University. Betsy Price (TAC of Tarrant County) joined Partner Barbara Williams (of our Fort Worth office) in leading a panel discussion focusing on the issues of large counties (> 100,000 popula- tion). The issues raised by participants includ- ed the refunds of HB 2832, certificates required to move mobile homes, and resale of tax foreclosure property. Marsha Gaines ('FAC for Fort Bend County), who has been exten- sively involved in legislative reform, especially in the area of bankruptcy, voiced her desire that TACA become more proactive, rather than reactive, to legislative changes. One attendee posed the interesting question of whether the National Guard & Reservists that were called up to respond to the war in Afghanistan would receive the same tax breaks that the Gulf War veterans had received. The answer was no, not for this year, and not until the next legislative session chooses to extend the same advantages. ~ Texas Municipal League The Texas Municipal League (TML) has a new president, Guy Goo&on, Mayor Pro Tern of Beaumont, Texas. We would like to congrat- ' ulate Guy on his new position, and thank TML's out-going president, Loyd Neal Jr., Mayor of Corpus Christi, Texas. Both gentle- men deserve to be recognized for their public service in advocating the interests of cities throughout Texas. ~ Betsy Price Guy Goodson _l ] 1 Ifyo~ have questions about the bills, please call Bruce Anderson at 800-262-7229 x 1226 Linebarger Goggan Blair Pefia & Sampson, LLP Legislative Report House Bills Appraisals HB 16-Corte Tax Code § 11.43 Adds §11.439 to Tax Code § 11.43 to allow for an application for a disabled veterans exemption up to the earlier of the first anniversary of the date the taxes were paid or the first anniversary of the date the taxes became delinquent. Effective September 1,2001. HB 394-Keffer Business and Commerce Code Adds Section 17.835 to the Business & Commerce Code requiring a person to file an original inventory with the chief appraiser if they are going to conduct a going out of business sale. The chief appraiser must send notice of the filing to the comptroller and the taxing units affected within five business days after the inventory is filed with their office. Effective September 1, 2001. HB 506-Smith, Todd Tax. Code § 11.26 Amends §§ 11.26 (g) and (h) to allow surviving spouses to transfer their over 65 tax freeze. For anyone qualifying for the exemption, they should be treated as if it went into effect on August 25, 1997. Effective January I, 2002.. HB 824~Ellis, Dan Tax Code § 11.23 Section 11.23, Tax Code, is amended to exempt county fair associations from ad valorem taxation concerning the buildings it owns and uses to hold 'agricultural fairs. This bill would make certain that horse and dog racing facilities do not qualify. Effective January 1, 2002. HB 1100-Lewis, Ron Tax Code § 21.031 Section 21.031, Tax Code, is amended to clarify that a vessel or other watercraft to be used as an instrumentality of commerce or a special-purpose vessel or other watercraft that is under construction in this state 'is presumed io be in interstate commerce and therefore not located in this state for longer than a temporary period. This same test is applied to vessels under construction and tangible personal property that will be incorporated into the vessel.' Effective January 1, 2002. liB 1194-Brimer Tax Code Amends Section 312, Tax Code, regarding the eligibility of certain property owned or leased by a local official for ad valorem tax abatement or tax increment financing. It clarifies that property, subject to a tax abatement agreement in effect when the person becomes a member of the governing body or of the zoning or planning board or commission, does not become ineligible for the tax increment f'mancing. Effective September 1,2001. I-IB 1392-Keffer Tax Code § 11.43 Section-11 ~43(c), Tax Code, is amended to provide that once an ad valorem tax exemption for certain community housing development organizations is allowed, it need not be claimed in subsequent years. Amendment requires a Community Housing Development Organization to notify the chief appraiser if a property receiving an exemption under § 11.182 is acquired or sold. Effective June 14, 2001. To receive this report via e-mail rather than U.S. Post, e-mail marla.gostisha~publicans.com 5/9/2002 4:18 PM If you have questions about the bills, please call Bruce Anderson at g00-262-7229 x 1226 I-IB 1468-Pitts Tax Code § 26.03 Section 26.03, Tax Code, is added to provide that a portion of the captured appraised value of real property that the unit has agreed to pay into the tax increment fund is excluded from the value of property taxable by the unit in any tax rate calculation. The portion of the tax increment, which a taxing unit has agreed to pay into the tax increment fund, is excluded from the amount of taxes imposed or collected by the unit in any tax rate calculation. This section applies only to a taxing unit, other than a school district, that is located in a county of less than 500,000. Effective September 1,2001. HB 1689-Chisum Tax Code § 11.184 Section 11.184, Tax Code, is added to provide for the exemption from ad valorem taxation for certain organizations engaged primarily in performing charitable functions. The bill expands the definitions for an 11.18(d) organization to include a chapter, subsidiary, or branch of a statewide charitable organization. The buildings, real property, tangible personal property, and incomplete improvements of the organization will be eligible for exemption. The application for exemption under this section must be submitted to the comptroller to review and approve,' and must be reapplied for every five years. Language in this section is similar to other parts of the Code regarding the test, providing additional information and length of time for certain exemptions. The comptroller may adopt rules and forms to implement this section. Effective September 1, 2001. I-lB 1940-Bonnen Tax Code § 26.10 Section 26.10(b), Tax Code is amended relating to proration of the taxes imposed on an elderly persons residence homestead. If an elderly person qualifies a different property for a residence homestead exemption during the same year, the tax due against the former residence is calculated by the formula currently in use in this section of the Code. Effective January 1, 2002. HB 2076-Flores Tax Code § 11.14 Amends 11.14 to define "travel trailer" as a house or camper trailer and excludes it from taxation unless used for the production of income. The vehicle must be less than 400 square feet and designed primarily for temporary living quarters. Effective January 1, 2002. HB 2226- Davis, John Tax Code § 26.01 Chief appraiser shall certify to each taxing unit a list of taxable properties that are not included on the appraisal roll submitted under subsection (a) or (c) of 26.01. The certification shall include the market, appraised and taxable values for the preceding year, and a reasonable estimate of those values for the current year. Until the property is listed on the roll, the taxing unit shall include each property on this list in its truth and taxation calculations, and shall use the lower market, appraised or taxable value as appropriate. Effective January 1, 2002. HB 2601-Coleman Tax Code § 25.07 Defines "public facility" as including a convention center, visitor center, sports facility with permanent seating, concert hall, arena, or stadium that is owned by an incorporated city of town because such possessory or leasehold interests serve a public purpose when access to the property is open to the general public with or without charge. Substitute adds the above list of properties to the list of exempt leaseholds, rather than expanding the definition of public facility. Refers to Compaq Center in Houston. Effective August 27, 2001. HB 2782-Villarreal Tax Code 312.002 Allows a taxing unit to impose a fee not to exceed $1000 in connection with an application for tax abatement. Effective June 15, 2001. I-lB 3006-Uresti Tax Code 311.009 Changes the procedure for appointing members to the board of directors of a reinvestment zone in counties with a population of less than 1.4 million. Effective September 1,2001. To receive this report via e-mail rather than U.S. Post, e-mail marla.gostisha~publicans.corn 5/9/2002 4:18 PM If ydu have q~iestions about the bills, please call Bruce Anderson at 800-262-7229 x 1226 HB 3121-Ritter Tax Code 11.31 Requires TNRCC to adopt rules to implement the pollution control exemption. Such rules must ensure that the determinations made are equal and uniform and ensure that property used for the production of goods and services is not exempt. A chief appraiser or property owner would be allowed to challenge the determination of the TNRCC. Effective September 1, 2002. HB 3123-Alexander Adds new Section 23.521, which authorizes Parks and Wildlife Department, with the assistance of the Comptroller, to develop standards to determine qualification under §23.51(7) (wildlife management). The Comptroller shall adopt the standards and distribute to appraisal districts, and they must be followed by the districts and by ARBs. The standards may specify minimum acreage required for wildlife management appraisal, taking into account factors such as the activities conducted, the type of indigenous wildlife propagated, the region of the state, or other relevant factors. The standards may also require a written wildlife management plan upon request of a chief appraiser. Repeals Section 23.52(g), which currently requires the Comptroller, with assistance of Parks and Wildlife, to develop rules for appraisal districts to use in determining wildlife management qualification. Effective September 1,2001. I-lB 3383-Davis, Yvorme Tax Code § 11.182 Section 11.182(0, Tax Code, is added to allow the governing body of a taxing unit to require an organization entitled to an exemption under subsection (a) to show that at least forty percent of the exemption value will be expended on social, educational, or economic development services for the residents of the property. Effective January 1, 2002. HJR 44-Flores Tex. Const. Art. VIII § 1 Allows the legislature to exempt travel trailers from ad valorem tax effective January 2002. Election November 6, 2001. House Bills Collections I-lB 337-Hawley Alcoholic Beverage Code Alcoholic Beverage Code is amended to allow the Alcoholic Beverage Commission to cancel or deny a permit for the retail sale or service of alcoholic beverages if it f'mds that the permit holder or applicant have not paid delinquent ad valorem taxes due on the permitted premises or due from a business operated on the premises. Effective September 1, 2001. HB 468-Solomons Tax Code § 32.015 Section 32.015, Tax Code, is amended to provide that tax liens will no longer be filed with the Department of Housing after September 1, 2001. Instead, a tax lien on a manufactured home will be established in the manner provided by Sections 32.01 and 32.05. The Transportation Code is amended to require each application for a permit to transport a manufactured home be accompanied by a certificate from the tax assessor-collector for each taxing unit in which the home is located stating that there are not unpaid ad valorem taxes on the home due. If the home is not listed on the most recent tax roll of each taxing unit, the permit must also be accompanied by evidence showing the home was moved into the taxing unit after January 1 or a certificate from the appraisal district stating the owner has provided the appraisal district with information sufficient to list the home on a supplemental appraisal roll. There is a $500 fine for moving a manufactured home with out the accompanying permits and certificates. Effective September 1,2001. HB 490-Heflin Tax Code An individual may not serve on the appraisal district board of directors, ARB, or be chief appraiser if they own property with delinquent taxes. A tax collector may continue to collect vehicle inventory tax even if taxes are assessed and collected by another taxing unit or the appraisal district. An ARB member may be removed from their position for ex parte communications or conflicts of interest. In cases of litigation, taxpayer information held by the appraisal district, otherwise confidential, may be disclosed to the attorney representing a taxing unit in the collection of delinquent taxes. A To receive this report via e-mail rather than U.S. Post, e-mail raarla.gostisha~publicans, corn 5/9/2002 4:18 PM If you have questions about the bills, please call Bruce Anderson at 800-262-7229 x 1226 taxpayer submitting a payment that exceeds the amount owed by $5 or more should be mailed a written notices and refund application form. The collector shall refund a payment if they determine that a person erred in making a payment because another person previously paid the taxes. Section 25.25, Tax Code, is amended so that a chief appraiser may correct multiple appraisals (double assessments) at any time. Section 33.04 is modified regarding the requirement that the tax collector give notices of delinquent taxes every five years. Failure to send or receive the notice does not affect the validity of the tax. Amends Section 33.06 and 33.065(g) to clarify penalty and interest rates before, during and after the period during which collection of taxes is deferred on the residence homesteads of persons who are 65 years of age or older or on appreciating residence-homesteads. Section 33.07 is amended to be in harmony with Section 6.30. Section 33.08 is amended to add taxes supplemented to the tax roll so late in the year that the delinquency date is delayed to the list of taxes with delayed delinquency dates that are subject to the same penalty as other property. Section 16 of the bill provides for the transfer of delinquent county education district taxes in counties with a population of less than 22,000. In Section 33.21 personal property is further defined to include cash and other forms of property readily convertible to cash. Section 33.23 clarifies that a taxpayer or third party is immune from liability upon making surrender of personal property that is seized and requiring the tax assessor-collector to furnish a sworn receipt. Further, either the tax collector or peace officer may take the seized property. Section 33.25 is amended to prescribe the manner in which a notice of sale is served upon the owner of property seized and directs the tax collector to apply the seized property directly to payment of taxes if the property is cash or its equivalent. A taxing unit may seek injunctive relief under a suit to collect delinquent taxes if it shows the court the personal property is about to be removed from the county. Attorney ad litem fees would be recoverable by the taxing unit as costs, but it is a cost from which the taxing unit is exempt. An amendment to Section 33.56 provides for an additional ground on which a taxing unit may seek to vacate one of its tax judgments, that being double assessment. Section 34.01 is amended so as to authorize a sheriff or constable to collect an amount sufficient to pay the recording fee. In addition, the form of a certified tax statement is further clarified; the officer conducting a sale must execute the Sheriffs Tax Deed if the taxing unit prepares one and the amendment better defines how an officer should calculate the minimum opening bid. Section 34.051 adds as an approved use, for a taxing unit to enter into an interlocal agreement, any purpose consistent with the municipalities' affordable housing policy. Section 34.07 is amended to clarify that a taxing unit need only refund to a tax sale purchaser the amounts actually received. The purchaser could recover excess proceeds paid to the owner and constituted part of the purchaser's bid. A purchaser must bring suit under this section within one year of the date of sale. Section 34.21 clarifies that the right of redemption applies whether property is judicially foreclosed or seized under a warrant. Section 42.02 is amended to add appraisal review board orders regarding taxpayer motions under Section 25.25 as also being subject to appeal by the chief appraiser. Several sections in the bill cure duplicate non-conflicting provisions and make other non-substantive changes. Effective September 1,2001. . HB 741-Bailey Local Government Code .. Amends the Local Government Code to create the Aldine Community Improvement District. It authorizes an election to impose an ad valorem tax to support the maintenance and operations, improvements, and services tothe district. Effective June 17, 2001. HB 858-Dutton . Tax Code § 34.051 Section 34.051, Tax Code, is amended to clarify the effect of a resale deed used to transfer title from the taxing units for purposes of urban redevelopment. The deed of conveyance conveys to the purchaser the right, title, and interest held by each taxing unit, subject to the right of redemption. Effective June 14, 2001. HB 1393-Hodge Tax Code § 31.11 Section 31.1 l(a), Tax Code, is amended to allow tax collectors in counties with a population of 1.5 million, instead of 2.8 million, to pay refunds up to $2,500 with auditor approval. Effective September I, 2001. To receive this report via e-mail rather than U.S. Post, e-mail marla.gostisha~publicans.com 4 5/9/2002 4:18 PM If y6u have qdestions about the bills, please call Bruce Anderson at 800-262-7229 x 1226 HB 1876-Gray Tax Code § 33.71 Section 33.71, Tax Code, is amended to allow an attorney appointed a master to practice law in the referring court if qualified to do so. Effective May 24, 2001. HB 2185-Goolsby Local Government Code Amends Section 130.0045, Local Government Code, to allow the county tax assessor-collector to set the fee for processing certain payments by credit card. Effective June i 1,2001. I-lB 2832-Smithee Tax Code § 31.11 Section 31.1 l(g), Tax Code, is added to provide that ifa taxpayer submits a payment of taxes that exceeds by $5 or more the amount of taxes owed, the collector shall mail written notice of the amount of overpayment accompanied by a refund application form. This same language is in HB 490, which is effective on September 1,2001. Effective January 1, 2002. HB 3162-Brown Local Government Code Authorizes municipalities to accept payment of fees, fines, court costs, and other charges by credit card or other electronic means without charging an additional fee. Effective June 11, 2001. HB 3364-Menedez Tax Code 33.06 Allows an individual who is disabled as defined in 11.13(m) to defer or abate a suit to collect delinquent taxes. Effective June 14, 2001. HI3 3626-Puente This bill relates to the ratification of the creation of the Tri-County Groundwater Conservation District, including the administration, powers, duties and operation of the district. The district has the authority to levy an ad valorem tax in the amount of 1 cent per $100 of assessed valuation. Effective September 1,2001. HB 3634-Farrar Local Government Code Amends the Local Government Code to create the North Side Management District. The District has the authority to impose an ad valorem tax and issue bonds. Effective June 16,2001. House Bills Schools I-lB 1532-Kuempel Education Code Section 42.302, Education Code, is amended to provide that the total amount of maintenance and operations taxes collected by a school district with alternate tax dates is the amount of taxes collected on or after January 1st of the year in which the school year begins. Earliest effective date September 1,2001. HB 3343-Sadler Education Code Amends the Insurance Code and Education Code to provide for the operation and funding of certain group coverage programs for certain school and educational employees and their dependents. All school districts would receive $75 per month to cover insurance costs. School district size determines the group or local insurance plans. The rollback tax rate formula for school districts receiving funds for teaching health benefits is changed. This bill also raises the allowable wealth per student and provides additional state aid. Effective September 1, 2001. To receive this report via e-mail rather than U.S. Post, e-mail marla, gostisha~publicans.com 5/9/2002 4:18 PM If you have questions about the bills, please call Bruce Anderson at 800-262-7229 x 1226 HB 3526-Hochberg Education Code 44.004 If a chief appraiser for a county that includes a school district with a fiscal year beginning July i i's unable to provide certified values by July 7~, the school district may use the chief appraiser's certified estimate in calculations required by the notice in § 44.004. The district using the estimate may adopt a budget at the public meeting but may not set a tax rate until they have certified values. The district must publish a corrected notice and hold a second public meeting only if the tax rate to be adopted exceeds either the tax rate proposed in the original notice or the district's rollback rate. Effective September 1, 2001. House Bills Miscellaneous HB 122-West, Buddy Local Government Code Relating to authorizing a municipality to transfer real property to a nonprofit organization to use for public purposes. Floor amendments adopted providing that the bill does not apply to municipality with pop. of 1.9 million or more. Effective September 1,2001. HB 602-Zbranek Health and Safety Code Amend Section 285 to provide that the voters in a hospital district may approve the adoption of a sales and use tax to lower the district's ad valorem taxes. EffeCtive September 1,2001. HB 612-Maxey Tax Code Section 311, Tax Code, is amended to require the comptroller to file an annual report with the legislature regarding reinvestment zones and maintain a central registry ofreinvestment zones. Municipalities are required to file reports with the comptroller regarding reinvestment zones. Effective June 11,2001. HB 820-Giddings Government Code Amends the Government Code to remove the restriction relating to the number of enterprise zone projects designated in a municipality with a population of 250,000 or more. Effective September 1,2001. HB 1027-Cook Development Corporation Act Amends the Development Corporation Act relating to the cleanup of contaminated property. If an owner of previously contaminated property manufactures goods at a facility on the site, then state agencies shall give preference to those goods. Effective September 1, 2001 ....... HB 1050-Solomons Property Code Adds Section 51.008, Property Code, requiring a governmental entity to record a lien on real property created in the Code or any other law of the state. The lien must be recorded in the real property records of the county in which the property is located. Effective September 1, 2001. HB 1053-Coleman Local Government Code Adds Chapter 386, Commercial and Industrial Development Zones, to the Local Government Code. This bill relates to the creation of these zones in Harris County for the purpose of creating commercial development, promoting workforce development and competitiveness in education, public and private sector partnerships and the revitalization of neighborhoods. A creating body may allow one quarter of one percent of a local property tax increment to fund a zone. Effective June 16, 2001. To receive this report via e-mail rather than U.S. Post, e-mail marla.gostisha~publicans.com 6 5/9/2002 4:18 PM If you have qt/estions about the bills, please call Bruce Anderson at 800-262-7229 x 1226 HB 1081-Cook Water Code Amends the Water Code to create the Fayette County Groundwater Conservation District. To pay the maintenance and operating costs of the district and to pay any bonds or notes issued by the district, the district may impose an ad valorem tax at a rate not to exceed two cents on each $100 valuation of taxable property. Effective September 1,2001. HB 1200-Brimer Tax Code Amends Chapter 313, Tax Code, as it relates to the enactment of the Texas Economic Development Act. The Act would authorize the continuation of the Property Redevelopment and Tax Abatement Act, including the authorization of certain ad valorem tax incentives for economic development, including authorizing school districts to provide tax relief for certain corporations and limited liability companies that make large investments and create or maintain jobs. At least 80 percent of the jobs created must be "qualified jobs" and the property owner may create as few as i0 jobs to qualify for the incentives. This bill is aimed at high-tech clean rooms. Effective September 1,2001. lib 1448-Oliveira Tax Code § 312.204 Amends the Tax Code to allow a governing body to agree with the. owner of a leasehold interest in tax-exempt real property that is located in a reinvestment zone, but that is not in an improvement project financed by tax increment bonds, to exempt a portion of the value of tangible personal property located on the real property, if the owner agrees to make specific improvements. Effective June 13,2001. 1-113 1449-Oliveira Tax Code § 312 and 320 Amends the Tax Code to continue the life of the Property Redevelopment and Tax Abatement Act until December 31, 2009. This bill also prohibits school districts from granting tax abatements after September 1, 2001. Effective June 13, 2001. HB 1833-Giddings Government Code Amends the Local Government Code to set forth provisions regarding the enforcement of certain health and safety ordinances, including access to property owner information, and altemate methods of the delivery of notice of violations of health and safety ordinances. Effective September 1; 2001. I-lB 1842-Callegari This bill relates to the creation, administration, powers, duties, operation, and financing of the West Harris County Regional Water Authority. Effective May 28, 2001. HB 1869-Wohlgemuth 'Manufactured Housing Act A manufactured home is considered to be real property and therefore to be treated as attached to the land, unless the consumer designates the home as personal property. Effective September 1, 2001. HB 1922-McCall Government Code Adds Chapter 559, Government Code, relating to state government privacy policy. An individual would have a right to be informed about information collected on themselves and a right to correct any incorrect information. The bill would also establish a privacy task force to study issues related to the information practices of governmental bodies. Effective September 1, 2001. HB 1990-Turner, Sylvester Local Government Code Amends the Local Government Code to provide for the creation of the Near Northwest Management District with the authority to impose taxes and issue bonds. Effective May 28, 2001. To receive this report via e-mail rather than U.S. Post, e-mail marla.gostisha~publicans.com 7 5/9/2002 4:18 PM If you have questions about the bills, please call Bruce Anderson at 800-262-7229 x 1226 HB 2028-Yarbrough Labor Code A lien filed by the Workforce Commission is superior to a lien for ad valorem taxes. Effective September 1, 2001. HB 2138-Marchant Natural Resources Code Lands sold by the School Land Board, Veteran's Land Board, Land Office or Commissioner may be held confidential. Effective September 1, 2001. HB 2295-Woolley Local Government Code Adds certain powers to the Harris County Improvement District No. 1, including the district's fight to impose an ad valorem tax, assessment, or impact fee to provide improvements or services for a project. Effective June 17, 2001. HB 2682-Allen Tax Code Amends Section 311 of the Tax Code to allow certain cities to enter into a new agreement regarding revenue from reinvestment zones. Revenue may be dedicated from the tax increment fund to the school district for acquiring or constructing an educational facility. Effective September 1,2001. I-I13 2686-Solis, Jim Government Code Amends the Government Code and Tax Code relating to tax incentives for certain businesses located in enterprise zones, defense readjustment zones, or certain federally designated zones. It expands the qualifications and definitions to include all the listed zones to update the Code. Effective September 1, 2001. HB 2744-Carter The tax rate of an emergency services Constitution. Effective September 1,2001. Health and Safety Code district or rural fire prevention district is any rate allowed by the Texas HB 2746-Carter Health and Safety Code Amends the Health and Safety Code to increase the tax rate from 10 to 15 cents in emergency service and rural fire prevention districts. Effective June 16, 2001. liB 2813-Wolens Occupations Code A non-substantive revision of the Occupation Code as it relates to professions in real property, housing, engineering, architecture and land surveying amongst others. Effective June 1, 2003. HB 2873-Uher Gov Code 552.265, Loc Gov Code Amendments to the amounts District or County clerks may charge for copies of information. Effective June 15, 2001. H2B 3001-Uresti Tax Code § 312 Amends Section 312.204(a), Tax Code, as it relates to the effective date for tax abatements. The agreement may take effect on January 1 of the next tax year after the date the improvements or repairs are substantially completed: Effective September 1,2001. HB 3172-Thompson Local Government Code Amends the Local Government Code to give counties the authority to establish public improvement districts. This gives counties the same authority currently only available to municipalities. Municipalities and counties would now have the right to levy an ad valorem tax to support the district. Effective June 16, 2001. To receive this report via e-mail rather than U.S. Post, e-mail marla.gostisha@publicans.com 8 5/9/2002 4:18 PM Ifyoh have qffesti0ns about the bills, please call Bruce Anderson at 800-262-7229 x 1226 ~ 3552-Ra_wnond Amends the Texas Manufactured Housing Act to change language relating to when a new HUD-code manufactured home is permanently affixed to real estate; and as to when a notice of attachment or certificate of attachment is filed in the real property records of the county. The state agency handling certificates of attachment must provide a report to the tax collector containing certain information on the owner and mobile home. Effective September 1, 2001. HB 3634-Farrar This bill creates the North Side Management District and authorizes the levy of an ad valorem tax. Effective June 14, 2001. HB 3642-Counts This bill creates the Lower Seymour Groundwater Conservation District and authorizes the district to levy an ad valorem tax not to exceed 5 cents for each $100 of taxable value. Effective June 17, 2001. HJR 45-Tillery Tex. Const. Art. IV § 8 The Governor shall convene the Legislature to appoint presidential electors if the Governor determines that a reasonable likelihood eXists that a final determination of electors will not occur before the deadline. Passed. Election November 6, 2001. HJR 75-Mowery Amends the Texas Constitution to eliminate obsolete, archaic, redundant, and unnecessary provisions and to clarify, update, and consolidate certain other provisions. Passed. Election November 6, 2001. Senate Bills Appraisals SB 247-Shapleigh Tax Code § 25.025 Section 25.025, Tax Code, is added relating to confidentiality of certain appraisal records. Specifically makes the home address of peace officers and other criminal justice employees confidential if the individual chooses to restrict public access to the information. The Comptroller is charged with creating the form. This bill makes the same changes in the Open Records Act. Effective September 1, 2001. SB 248-Carona Tax Code § 11.252 Adds § 11.252 to exempt leased vehicles that are used primarily (at least 50 percent of the use) for activities that do not involve the production of income. The comptroller must create a form to be completed by the lessee, and the form must be maintained by the owner of the leased vehicle. The lessor must file a report with the Chief Appraiser covering all leased vehicles and information as to whether it is used for production of income. Effective January 1, 2002. SB 650-Carona Tax Code § 6.41 This bill amends Sections 6.41(b) and (e), Tax Code, to allow for the increase in size of the ARB from 15 to 40 members in counties with a population of 250,000 or more. It would also allow for the increase in the size of an ARB in counties with a population in excess of 500,000 from 30 to 75. Effective January 1, 2002. SB 862~Staples Tax Code § 11.251 Section 11.251(h), Tax Code, is amended to allow a property owner requesting an exemption for Freeport goods to have additional time to provide requested information. The property owner will not be late if they file before the date the appraisal review board approves the appraisal records. If the property owner does not deliver the requested information before the 31st day after the date the notice is delivered, but does deliver the information before the appraisal records are approved, the property owner is liable to each taxing unit for a penalty in an amount equal to 10 percent of the amount imposed by the taxing unit on the inventory or property and the amount that would otherwise have been imposed. The To receive this report via e-mail rather than U.S. Post, e-mail marla.gostisha~publicans.com 9 5/9/2002 4:18 PM If you have questions about the bills, please call Bruce Anderson at 800-262-7229 x 1226 chief appraiser will be required to deliver notice of the imposition of the penalty to the property owner. The assessor and the collector shall add the penalty to the tax bill and collect the tax. The amount of the tax does constitute a lien on the property. Similar changes are made to Section 11.439 of the Code. Effective September 1, 2001. SB 863-Staples Tax Code § 42.43 Amends Section 42.43, Tax Code, to provide for increasing the interest rate paid on tax refunds to property owners on ad valorem tax appeals. The bill also provides for the payment of court costs and reasonable attorney's fees to a property owner who prevails in a motion to compel a refund that is filed on or after the 1806 day after the date the appraisal roll is corrected. Substitute provides that if a taxing unit does not make a refund under '42.43 within 60 days after the chief appraiser certifies a correction, the unit must include 12% interest. Applies to corrections certified on or after the effective date. Effective May 22, 2001. SB 865-Staples Tax Code § 25.25 Section 25.25, Tax Code, is amended to make it mandatory for the ARB to direct by written order changes in the appraisal roll. It also gives the ARB authority to consider any evidence offered by the property owner to establish that an error resulted in an incorrect appraised value. The bill would take away the chief appraisers right to file a motion with the ARB prior to the date the taxes become delinquent, leaving the property owner as the only one who may make the motion. Senate Substitute allows changes under § 25.25(c) in any of the five preceding years, rather than at any time before the end of five years after January 1 of the tax year. Prohibits a change under (c) only if the property was the subject of a protest on which a hearing was conducted and a determination made, or if an agreement was made on the protest. Other changes are deleted. Cannot file 1/3 over, unless appeared. Effective May 28, 2001. SB 1095-Carona Tax Code § 5.101, 24.41, Amends 5.101 to delete the requirement that the technical advisory committee meet semi annually. Adds 24.41 to require chief appraisers to supplement rolling stock certification to the comptroller immediately upon discovering that the original certification was incomplete or incorrect. The comptroller shall then certify the correction to the county assessor-collector for each affected county. Amends 25.195 to provide that for property appraised by a private appraisal f'm-n pursuant to an appraisal district contract, the property owner is entitled to inspect and copy, at the office of the appraisal fa'm, all information the firm considers in appraising the property, including calculations, personal notes, correspondence, working papers, and thought processes. The information must be made available within 15 days after a written request. If the property owner requested the information, the ARB may not hold a hearing concerning the property until the firm has allowed inspection and copying or the owner withdraws the protest or motion. Amends 312.005 to require that an appraisal district in which a reinvestment zone is designated or in which a taxing unit is located that has executed an abatement agreement must file a report on the zone or abatement with the comptroller. The statute currently provides that the taxing unit must provide that report. Substitute renumbers § 24.41 to § 24.365. Effective September 1, 2001. SB 1189-Ellis, Rodney Tax Code 11.11 Exempts non-profit corporation that provides chilled water and steam to eligible institutions under § 301.031 of the Health and Safety Code. Refers to healing and cooling the Texas Medical Center in Houston. Effective May 21, 2001. SB 1272-Bernsen Tax Code 23.425 Allows land in a county of less than 35,000 that has a greenhouse for growing florist items on it to qualify as agricultural use if it otherwise qualifies for the designation under 23.42. Effective January 1, 2002. SB 1574-Gallegos Tax Code 11.33 Adds § 11.33 to exemption raw cocoa and green coffee held in Harris County. Effective January 1, 2002. To receive this report via e-mail rather than U.S. Post, e-mail marla.gostisha~publicans.com 10 5/9/2002 4:18 PM Ifydu have qtiestions about the bills, please call Bruce Anderson at 800-262-7229 x 1226 SB 1710-Van Putte Tax Code 312.206 Deletes the requirement that other taxing units execute a tax abatement agreement within 90 days of a municipal agreement. Provides that the execution, durations and terms of an agreement are governed by those provisions applicable to a municipality. Effective September 1, 2001. SB 1737-Cain Tax Code 25.195 Amends 25.195 to provide that for property appraised by a private appraisal faun pursuant to an appraisal district contract, the property owner is entitled to inspect and copy, at the office of the appraisal f'n-m, all information the f'rrm considers in appraising the property, including calculations, personal notes, correspondence, working papers, and thought processes. The information must be made available within 15 days after a written request. If the property owner requested the information, the ARB may not hold a hearing concerning the property until the firm has allowed inspection and copying or the owner withdraws the protest or motion. Effective May 26, 2001. S JR 6-Duncan Article VIII § 1-n exempts the same type of goods as the freeport exemption, except that the def'mition of property which qualifies includes property that is acquired or imported in order to be forwarded outside the state or to another location in the state. Goods in transit can be exempt under this bill if they are detained at a location not owned or under the control of the property owner for assembling, manufacturing, processing, or fabricating, and are transported out of the state, or to another location in the state within 270 after acquisition. This constitutional amendment was proposed in the 1998 session. Passed. Election November 6, 2001. Senate Bills Collections SB 201-Carona Local Government Code Amends the Local Government Code to authorize counties and municipalities to provide access to information and to enter into contracts for the payment of taxes, fees, or other charges through the Internet. The county or municipality may charge a fee for the access to recover direct and reasonable costs: Effective May 1 I, 2001. SB 256-Carona Tax Code Sec. 34.21(g)(2) Section 34.21(g)(2), Tax Code, is amended to add to the list of reimbursable costs on the resale of property struck off to a taxing entity. A taxing unit would be entitled to be reimbursed for the personnel and overhead costs reasonably incurred by the purchaser in connection with maintaining, preserving,.safekeeping, managing and reselling the property, which are similar to those costs for which a purchaser at a tax sale can be reimbursed. Effective May 22, 200 i. SB 732-Barrientos Local Government Code Amends the Local Government Code to address the receipt of money by a county after the start of the fiscal year. The commissioners court may adopt a special budget for the limited purpose of spending revenue not included in the budget for that fiscal year. In addition, at least 60 days before the f'n'st day of the county's fiscal year, the assessor-collector shall prepare a budget for the expenditure of the funds maintained and controlled by a county tax assessor-collector that are not included in the county budget. The budget is not subject to approval by the commissioners court. Funds in those accounts may not be used to supplement the salary or cover the personal expenses of the assessor-collector. Effective September 1, 2001. SB 1736-Cain Tax Code 33.011 Allows a taxpayer to qualify for a waiver of penalty and interest under this section if the taxpayer pays the taxes within three years of the date the taxpayer knows or should have known of the delinquency (currently is 21 days). Waiver of interest is mandatory upon a finding by the governing body. Effective June 30, 2001. To receive this report via e-mail rather than U.S. Post, e-mail marla.gostisha~publicans.com 11 5/9/2002 4:18 PM If you have questions about the bills, please call Bruce Anderson at 800-262-7229 x 1226 SB 1778-Lucio Code of Criminal Procedure Amends the Code of Criminal Procedure to provide for the collection by attorneys or private vendors of certain debts of the county and municipalities. This bill provides for a 3 0 percent collection fee add on if an attomey or private vendor is hired to collect fines and fees over 60 days past due. Effective June 15, 2001. Senate Bills Miscellaneous SB 2-Brown Water Code SB 2 addresses the implementation and financing of the water strategies and recommendations identified in the last four years. Rulemaking authority is expressly granted to the Texas Natural Resource Conservation Commission. The bill creates priority groundwater management areas that will have the authority to levy a maintenance tax. A taxing unit may exempt from taxation all or part of the assessed value of property on which approved initiatives have been implemented pursuant to local ordinances. Effective September 1,2001. SB 108-Lucio Education Code A school district may not begin classes before the week in which August 21st falls.. In order to apply for a waiver, a school district must hold a public hearing and summarize the opinions expressed in a report to the TEA. Effective September 1, 2001. SB 115-Madla Health and Safety Code Amends the Code to establish the Rural Health Foundation. All income, property, and other assets are tax exempt. Effective September 1,2001. SB 141-Moncreif Property Code Amends Chapter 41, Property Code, to require disclaimers on certain advertisements that offer homestead designation services. Effective September 1, 2001. SB 187-Shapleigh Government Code Amends the Government Code to create an authority and project to provide government services through a secure and uniform online system. The project is to be designated as the TexasOnline project that establishes a common electronic infrastructure through which state agencies and local governments may electronically send and receive documents or payments from the public. Effective May. 26, 2001. SB 198-Moncrief Property Code Amends the Property Code to require certain disclosures in contracts involving the transfer of real property. This bill also requires the seller to attach a tax certificate from the collector for each taxing unit. Effective September 1, 2001. SB 243-Harris Local Government Code Amends Section 395, Local Government Code, to provide for the financing capital improvements and facility expansions through the assessment of impact fees. There would be a credit for the portion of ad valorem tax and utility service revenues generated by new service units during the program period if it is used for the payment of improvements. Effective September 1, 2001. SB 274-¥an de Putte Health and Safety Code Amends the Health and Safety Code to prohibit the participation by certain hospital districts, including Harris, Bexar, E1 Paso, and Nueces, in tax increment funding agreements in order to ensure that hospital district ad valorem tax revenues are only used in support of the hospital districts' public health mission. The committee substitute streamlines the changes without affecting the original intent. Effective September 1,2001. To receive this report via e-mail rather than U.S. Post, e-mail marla.gostisha~publicans.com 12 5/9/2002 4:18 PM If y0~ have questions about the bills, please call Bruce Anderson at 800-262-7229 x 1226 SB 275-Shapleigh Government Code The comptroller is required to collect and make available before the beginning of the session information that details all economic development activities or projects. Included in the information is to be an analysis of the effectiveness of certain ad valorem tax exemptions. Effective June 15, 2001. SB 694-Wentworth Government Code Provides that a credit card, debit card, charge card, or access device number that is collected by a government body is confidential. E-mail addresses are also confidential. Effective September 1,2001. SB 695-Wentworth Government Code Amends the Government Code as it relates to consultations between a governmental body and its attorney and authorizes a governmental body to conduct meetings by telephone conference call, video conference call, or communications over the Intemet. Effective May 7, 2001. SB 985-Duncan Tax Code § 312 Amends the Tax Code to authorize the governing body of a municipality to enter into an agreement with the owner of a leasehold interest in real property that is located in a reinvestment zone. It would allow the exemption of a portion of the value of tangible personal property located on the real property, for a period not to exceed 10 years, on the condition that the owner of the leasehold make improvements or repairs. Effective June 15, 2001. SB 986-Duncan Tax Code § 312 Amends the Tax Code to allow certain tax abatement agreements to provide for the recapture of lost ad valorem tax revenue if a property owner fails to comply with a tax abatement agreement requirement for creating jobs. Effective June 13, 2001. SB 1125-Armbrister Various Codes Amends various codes that relate to technical and non-substantive changes to statutes involving taxes or fees administered by the Comptroller of Public Accounts. Effective September 1,2001. SB 1167-Madla Health and Safety Code Amends the Health and Safety Code regarding the operations of certain emergency service districts. Effective September 1, 2001. SB 1168-Madla Water Code Amends the Water Code to authorize counties to have a referendum to increase or decrease flood control taxes or the use of the funds generated by the taxes. Effective May 22, 2001. SB 1171-Madla Local Government Code The Commissioners Court of a county may authorize the collection of a transaction fee, equal to the amount charged by a vendor, for credit card payments. Effective May 15, 2001. SB 1226-Lindsay Local Government Code Creates the Energy Corridor Management District with the Same powers granted to municipal management districts, including the right to levy an ad valorem tax to support its functions. Effective June 16, 2001. SB 1444-Brown Water and Local Government Code Amends the Water Code to provide for additional powers and authority regarding water districts. Provisions regarding the submission of an appraisal roll to a governing body, effective and rollback tax rates, tax rate, and election to repeal a tax increase exceeding the rollback tax rate do not apply to a tax levied and collected for payment of the interest on bonds issued by a district. Effective June 17, 2001. To receive this report via e-mail rather than U.S. Post, e-mail marla, gostisha~publicans.com 13 5/9/2002 4:18 PM If you have questions about the bills, please call Bruce Anderson at 800-262-7229 x 1226 SB 145 g-Duncan Government Code This bill amends the Govermnent Code to create a number of new electronic services designed to benefit the state by improving the efficiency and effectiveness of state and local government. An electronic government program management office will direct and facilitate the implementation of electronic government projects. The bill also creates the TexasOnline grants program. Grants to local government will enable them to provide electronic government services. Effective June 15, 2001. 'SB 1782-Shapiro Local Government Code Amends the Local Government Code to create the Frisco Square Management District. The district has the authority to impose an ad valorem tax to provide improvements and services. Effective June 16, 2001. S JR 47-Gallegos Texas Constitution Amends Article VIII by adding Section l-n, Constitution, to exempt from ad valorem taxation raw cocoa and green coffee that is held in Harris County. Passed. Election November 6, 2001. To receive this report via e-mail rather than U.S. Post, e-mail marla.gostisha~publicans.com 14 5/9/2002 4:18 PM DELINQUENT TAX CLIENT LIST CITIES REPRESENTED BY LINEBARGER GOGGAN BLAIR PENA & SAMPSON LLP ~ AGUA DLTLCE -ALAMO ~ ALBA ~ AI~TJO ~ ALTO ~ ALTON ~ ALVORD ~ AMHERST ~ ANNONA ~ ANTHONY ~ ARANSAS PASS ~ Al{COlA - ARLINGTON ~ARP ~ ASHEKTON ~ ATLANTA ~ AUSTWELL ~ BALCH SPRINGS ~ BALCONES HEIGHTS ~ BALLINGEK ~ BANGS ~ BANqUETE ~ BARKY ~ BAY CITY ~ BAYSIDE - BEASLEY ~ BEAUMONT ~ BECKVILLE CITY ~ BEDFORD ~ BEEV~.T.~ ~ BELLEVUE ~ BF-LLMF_AD ~ BF. LI.~ ~ ~ BEVERLY I-nT J.q - BIG LAKE ~BtG SANDY ~ BISHOP - BLANCO ~ BLANKET - BLOOMBUKG BLOOMING GROVE BLOSSOM BOGATA BONHAM BOYD BRA~ BRADy BRAZORIA BREMOND BP, ENHAM BRIDGE CIT~ BRIDGEPORT BKOWNSV~.T.~ BROWN'WOOD BRUCEVILLE. EDDY BRYSON BUDA BULLARD BURTON BYEKS CAI)DO MILLS CALVERT CARROLLTON CENTER CHATEAU WOODS CHICO CI-m I .TCOTHE CHINA GKOVE CL~UCS~ (~D RrVEK) C~amSVmLE crre (GKaGG) CLINT COCKR~.T. HILL COLEMAN COI.LINSV~.T.~ COMBES COMMERCE COMO CON'ROE CONVERSE COOLIDGE COOPER COPPELL ¢o~,rra COP, PUS CHRISTI COKKIGAN CORSICANA COTULLA CKANDALL CP, ANE CRANFILLS GAP CRAWFORD CKOCK~Tr CKOWLEY CKYSTAL CITY CUEKO CUMBY DAINGEKFIF_.LD DALLAS DALWOKTHINGTON GARDENS DAWSON DECATUR DEL RIO DELL CITY DENISON DENTON DEPORT DESOTO DETKOiT DIBOLL DODD CITY DOMINO DONNA DOUBLE OAK DRISCOLL DUNCANVr~.T,~ EARLY EAST MOUNTAIN EAST TAWAKOM EASTON ECTOK EDCOUCH EDINBURG EDNA May 09, 2002 1/4 DELINQUENT TAX CLIENT LIST CITIES REPRESENTED BY LINEBARGER GOGGAN BLAIR PENA & SAMPSON LLP EL CAMPO EL PASO ELMENDORF ELSA. EMHOUSE EMORY ENCINAL ELK.ESS EVANT ~ EVERMAN FAIEVlI~W FALFURRIAS FALLS CITY FATE FLOKESVILLE FOItF. ST HILL FOKT STOCKTON FRANKSTON FRLSCO FROST FULTON GANADO GEOKGE WEST GIDDnqGS ~ GII_MEK ~ GOLDSMITH ~ GONZALES ~ GOODLOW ~ GOODRICH ~ GRANBUKY ~ GRAND PRAIRIE ~ GRANDFALLS - GKAPELAND ~ GKEGOKY ~ GREY FOREST ~ GKOVES ~ GKOVETON ~ GUNTEK ~ HAMILTON - ~GEN ~ HAWK COVE ~ HAWKINS - HEAR.NE -HEATH ~ HEMPHILL ~ I-IEND~ON ~ HENRIE-ITA - HICO ~ I-ELL COUNTRY VILLAGE ~ HONEY GEOVE - HORIZON - HOUSTON - HOWE ~ HUDSON - HUGHES SPRINGS ~ HUNTINGTON ~ HUTCHINS - INGLESIDE - INGLESIDE ON THE BAY - ITALY ~ IA.SPElt - JEFFEESON ~ JERSEY VILLAGE - IOAQUIN ~ JOHNSON CITY - IOSHUA - KARNES C1TY -KEMP - KENDLETON - KENEDY - KEPdVtrr ~ KILGORE - KINGSVILLE ~ IGRBY - KIRBYV~.LR - KNOX'v~.T.~ fiN) ~ KOSSE -KYLE ~ LAFRRIA ~ LA IOYA ~ LA PKYOK ~ LAGUNA VISTA - LAKEPORT - I~Z~Sm~. 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COLLEGE ~ BOLII~G ~ ~ BONHAM WATEKAUTHORiTY ~ BRAZOPJA CO FRESH WD # 01 ~ BRISTOL FD ~ BROWN CO WID # 01 - BROWNSVItff]q. I & DD ~ BKOWNSV]73.~ NAV DIST ~ BRUSHY CREF_K MUD ~ CAMERON CO DRAIN DIST # 01 ~ CAMERON CO DRAIN DIST # 03 ~ CAMEKoN CO DP.A]NDIST # 04 ~ CAMEKON CO DRAIN DIST ~ 05 - CAMERON CO EMEK SEKVS DIST ~ CANEY CREEK MUD May 09, 2002 DELINQUENT TAX CLIENT LIST SPECIAL TAXING DISTRICTS REPRESENTED BY LINEBARGER GOGGAN BLAIR PENA & SAMPSON LLP CENTRAL FPD CHAMBERS CO HD (BAYS]DE COMM HOSP) CHAMBERS-LIBERTy COUNT. 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AUTI:IORI/%r ~ EL PASO COMM COIL - EL PASO COUNTY WID # 01 ~ EL PASO DWNTWN MG1V~ DIST ~ RT,T.T~ CO FD # 09 - ~.t.m COFD# 10 ~ F-NIERALD BAY MUD ~ ENGFLMAN ID # 06 ~ ESCONDIDO WD ~ f. SD # 01 ~ FAIRWAY BEND IMPROV DIST ~ FALLS CO FD # 01 - FALLS CO FD # 02 ~ fALLS CO FD # 03 ~ FALLS CO WCID # 01 ~ fANNIN CO WTR AUTHOK1TY ~ fARMEr'S C~ WD ~ FERRI$ FD ~ FOP, NEY FD # 06 ~ FOKT BEND CO FWSD # 01 - FORT BEND CO MUD # 26 - FOKT BEND CO RFD # 01 ~FOP. T BEND CO KFD # 02 ~fOP, TBEND CO UNI.3/,~%~D RDS - FORT BEND CO WCTD # 02 - FOKT BEarD CO WCID # 03 - FORT BEND PARKWAY KD ~ FORT CLARK SFI{GS MUD - FORT HANCOCK WCID # 0l - FP.~D FIRE DIST - FRIO HD ~ GONZALES CO tD~SD # 01 ~ GONZALES CO FD ~ GONZALES HEALTI{CAR~ - GONZAJ3~ WD - GRAY COUNTY WI) ~ GRAYSON CO 3R COLLEOE - GR~GG CO KURAL FPD # 01 - C/~EGGESD #01 - HACIENDA DEL NORTE WI) I/4- DELINQUENT TAX CLIF, NT LIST SPECIAL TAXING DISTRICTS REPRESENTED BY LINEBARGER GOGGAN BLAIR PENA & SAMPSON LLP HAMILTON I-ID HARRIS - FORT BEND ESD # 100 (EMS) HARRIS CO ESD # 01 HAKRIS CO ESD ~ 02 ~S CO ~D ~ 03 ~S CO ~D ~ 04 ~S CO ~D ~ 05 ~COE~07 ~CO~09 ~C0~28 ~COF~ ~CO~ ~SCO~01 ~S CO~03 ~ CO~43 ~CO~0 ~S CO~Dg01 ~ CO~D~06 ~CO~D~08 ~ CO~D~ 10 ~CO~D~ 13 ~ CO~D~ 14 ~CO~D~ 16 ~ CO ~D~ 17 ~S CO~D ~ 19 ~ CO ~D ~ 20 ~S CO ~D ~ 21 ~S CO ~D ~ 24 ~ CO~D~ 2~ ~S CO ~D 9 19 ~ CO~D~47 ~S CO ~D ~ 48 ~ CO S~OOL EQU~ ~S CO WCm ~ 21 ~CKOKY ~CD ~ 01 - ~CO ~S DIST - ~ COD~ D~T ~ 01 - ~CO~ ~0l - ~GO CO ~ ~ 03 - ~ CO ~GDIST~ 01 - ~ CO ~G DIST ~ 06 HIDALGO CO IRRIG DIST # 16 HIDALGO CO RD # 05 HOMESTEAD MUD HONDO WD HOOD CO HD HOOD CO LraRAKy HOPKINS CO HI) HORIZON RFPD # I(ESD # 1) HOUSTON COMM COLL HOUSTON DWNTWN MGMT DIST HUDSPETH CO ESD # 01 HUDSPETH CO UWCD HUNGERFORD MUD # 01 INGLESIDE INDUSTRIAL ISAACSON MUD ITALY FD IVANHOE FD JACK CO HD JACK CO WCID # 01 JACK COUNTY EX.W.D. 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DIST NAVARRO COLLEGE NEW CANEY MUD IVIXON HOSP DIST NORTH BEE CO FPD NOR~m~ST TX COMM COLL DmZ (CAM?) NORTHEAST TX CO.VI COLL DIST (MOP, am) NOP.'tm~T TX COMlV~ COU. D~ST crrrus) NOKTHWEST FOREST MUD NUECES CO DRAIlq DIST ~ 2CR.KPT) NLrECES CO DRAIN DIST # 3(BISHOP) NUECES CO FPD # 01 N'UECES CO FPD # 02 NUECES CO FPD # 03 NUECES CO FPD # 04 NUECES CO FPD # 05 NUECES CO HOSP DIST NUECES CO WCID # 4 (PA) NUECES CO WICD # 5 (BAN00 OAK fID. LS DEVELOPMENT RD DIST ORANGE CO DRAINAGE DIST ORANGE CO EMG DIST #01 ORANGE CO EMG DIST # 02 ORANGE CO FI) # 03 ORANGE CO FD # 04 ORANGE CO NAV & PORT DIST ORANGE CO WCID # 01 ORANGE CO WCID 8 03 PALACIOS SEAWALL COM PARIS JR COLL DIST PARKER CO HD - PARKER CO UD PASEO DE LA RESACA MUD # 0 ! 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AUTH SAN AUGUSTINE CO HOSP DIST SAN FELIPE FD SAN PATRICIO CO DRAIN DIST SAN PATRICIO CO NAV SANTA CRUZ IRRIG DIST # 15 SANTA MARIA IRRG DIST # 04 SAIqTA RITA LrWCD SCURRY- ROSSEK FD # 05 SEALY FD SEIS LAC, OS LrD SMI'IH CO RYPD # 01 SM1THCO WD # 01 SOUTH MONTGOMERY CO RD DIST # 01 SOUTH TEXAS '4~K AUTH SOUTH TX COlVlM COrr. (STAR~) SOUT~ TX CONa~ COLLgqiDALGO) SOUTHERN MONTC, OM]~.Y CO MUD SOUTfiWEST TX JR COLL DIST SPR.1/qGTOWN FI1LE DIST # 01 SPURGER FI) # 0! T.~wr fid TARRANT CO ESD TARRANT CO i:~VSD # 01 TARI~ CO I-D TARRANT CO JR COIL TARRANT CO REG WTR DIST TARRANT CO RFD TERRELL RURAL FIRE DIST # 03 May09, 2002 3/4 DELINQUENT TAX CLIENT LIST SPECIAL TAXING DISTRICTS REPRESENTED BY LINEBARGER GOGGAN BLAIR PENA & SAMPSON LLP TEXAS SOUTHMOST COIL~.GE TOM GKEEN CO RFPD # 01 TOKNILLO WI) TRINITY BAY CONS DIST TRINrrY VALLEY COM/d COLL DIST TYLEP, CO DAM B FD TYLER CO HOSP DIST ~ TYLEKI¢ UPPE~ SABINE WASTE DISP DIST UPSHU~ CO FD # 01 VAL VERDE CO HOSP DIST VICKEKY MEADOW PRElVi ID VICKE~Y MEADOW STD ID VICTOK[A CO DD # 02 VICTORIA CO DD # 03 VICTOI{IA CO DD # 04 VICTORIA CO NVD VICTOP. JA CO WI) # 0t VICTORIA CO WI) # 02 VICTOtLIA ~K COLLEGE DIST WAKD CO WID # 02 WAI{KEN FD # 04 WAXAHACH~ FD WAXAHACH]E WATI~. DIST WEA~ORD ft{ COLL DIST WEST WHAKTON COUNTY ~ WESTCHESTEK PUBLIC IIV[PKOV DIST WESTWAY WCH) WESTWOOD SHOKES MUD WHAKTON CO FD # 0l WHARTON CO JrK COLL DIST WHARTON CO WID # I(LOUISE WT~) WHAi~TON CO WID # ~(EAST BERNARD WT) WI-lti'~TA]L I{[DG~ FD # 0~ WILLACY CO DRAIN DIST # 01 WILLACY CO DRAIN DIST # 02 ~ WILLACY CO EI\4S ~ WILLACY CO HD - WI[LACY CO NAV DIST ~ WILSON CO HD ~ WILSON PAfL~ RD - WISE CO WCID WISE CO WD# 1 (2 OF 2) WISE CO WTR. SUPPLY DIST wrOOD CO CENTRAL HOSP DIST Y'OAKUM FID ZAPATA CO WCID May 09, 2002 4 / 4 DELINQUENT TAX CLIENT LIST INDEPENDENT SCHOOL DISTRICTS REPRESENTED BY LINEBARGER GOGGAN BLAIR PENA & SAMPSON LLP AGUA DULCE liD ALAMO HEIGHTS liD ALBA - GOLDEN liD ALl'DO lSD ALTO ISD ALVARADO liD AMHERST LID ANTHONY LSD APPLE SPRINGS liD ARANSAS CO LiD ARANSAS PASS liD ARP LSD ATLANTA lid AUSTWELL - TIVOLI LSD AVERY LSD AVINGt~ liD AXTELL liD BANGS lSD BANQUETE LSD BAY CITY liD BEAUMONT LID BECKVrt .r .~ liD BEEVILLE lSD BELLS liD BELLVILLE LID BEN BOLT - PALITO BLANCO liD BENAVIDES liD BIG SANDY liD (POLK) BIG SANDY liD Ct3PSHUR) BIRDVILLE LSD BISHOP CliD BLANCO liD BLAND liD BLANKET lid BLOOMBUKG ISD BLOOMING GKOVE liD BLOOMINGTON liD BLUFF DALE lSD BOLING liD BOYD liD BRACKETT LID BP. ADy liD BRAZOS LSD BKEMOND ISD BRENFLAM liD BRIDGE CITY liD BRIDGEPORT ISD BROADDUS liD BROCK ISD BROOKF. LAND liD BKOOKESM1TH liD BI[OOKS CO ISD BKOWNSBOKO ISD BROWNSVILLE liD BKOWNWOOD ISD BKUCEV17.I.~ - EDDY ISD BI~YSON ISD BUENA VISTA ISD BULLAP, D liD BUNA LID BURKEV~ .r .~. lid BUI~TON liD BYEKS liD CADDO MILLS liD CAI_ALLEN liD CALVEKT liD CANUTILLO liD CARLISLE liD CAYUGA [SD CENTI~ LiD CENTEKVILLE liD (TP, XNTrY) CENTKAL LID CHAMBEKS CO SCHOOL EQUAL CHAPEL HILL LSD CHARLOTTE LSD CHEKOI~E LSD CHESTEK ISD CHICO LSD CHILLICOTHE liD CHILTON LSD CHINA SPKING lSD CHLSUMliD CI-I~STOVAL liD CISCO LSD CLARKS VILLE liD CLEVELAND LSD ~ CLINT lSD ~ COAHOMA LID ~ COLEMAN ISD ~ COLLINSV~.r.R 1SD ~ COLMESNEIL liD ~ COLUMBIA-BKAZORIA ISD ~ COMMUNITY LSD ~ CONNALLY lid ~ CONKOE'LSD ~ COOLIDGE LID ~ COOPEK liD ~ COPPELL LSD ~ COP, PUS CHRISTI LSD ~ COP. KIGAN-CAMDEN LID ~ CORSICANA lid ~ CRANDALL lid ~ CRANE LSD ~ CRANFILLS GAP lSD ~ CI~4.WFORD LSD ~ CP, OCKETr liD - CROWI.EY lid ~ CKYSTAL CITY liD ~ CUEKO lid ~ CULBERSON CO - ALLAMOOKE liD ~ CUMBY LSD ~ CYPRESS - FAIRBANKS ISD - DAINGEP, FIELD- LONE STAK ISD ~ DALLAS liD ~ DAWSON liD ~ DECATUP, LID ~ DEEP, PAKK LID ~ DELL CITY LID ~ DENLSON liD ~ DETROIT LSD ~ DEWEYV~3.1~ liD ~ DIBOLL LSD ~ DIME BOX LSD ~ DODD CITY LID ~ DONNA LSD ~ DKISCOLL liD ~ DUNCANV~.I.~ LSD ~ DUVAL CO VOCATIONAL DIST ~ EARLY ISD May 09, 2002 l/4 DELINQUENT TAX CLIENT LIST INDEPENDENT SCHOOL DISTRICTS REPRESENTED BY LINEBARGER GOGGAN BLAIR PENA & SAMPSON LLP EAST BERNARD LSD EAST CENTRAL LSD ECTOK LSD ~DCOUCH- ELSA mD EDGEWOOD LSD (BEXAK) EDINBUKG CISD EDNA LSD EL CAMPO LSD EL PASO LSD ELYSIAN FIELDS ISD ERA LSD EUSTACE LSD EVADALE LSD EXCELSIOR LSD EZZELL LSD FABENS LSD FALLS CITY LSD FANNINDEL LSD FERRIS LSD FLORENCE LSD FLORESVILLE LSD FLOUR BLUFF LSD FORESTBURG LSD FORNEY LSD FORT BEND [SD FORT DAVIS lSD FORT HANCOCK LSD FORT STOCKTON LSD FRANKSTON LSD FREER LSD GANADO LSD GARNER LSD ~ GEORGE WEST ][SD ~ GHOLSON LSD ~ GIDDINGS LSD ~ GILMEK ISD ~ GOLDTHWAITE lSD ~ GONZALES ISD - GOODRICH LSD ~ GRANBURY LSD ~ GRAND PRAIRIE LSD ~ GRANDFALLS - ROYALTY LSD GRANDVIEW - HOPKINS LSD GRAPE CREEK LSD GKAPELAND LSD GREENUNOOD LSD GREGORY- PORTLAND LSD GROVEl'ON LSD GUTHKI~ CSD HAT .T-KTTSVILLE LSD HAMILTON LSD HAMSHIP, E - FANNETT LSD HARLANDALE LSD HARI.INGEN CISD HARMONY LSD HAWKINS lSD HAYS CLSD HEARNE ISD HEMPHEL 1SD HENDERSON LSD HENRIEFrA lSD HICO 1SD HOLLIDAY LSD HONEY GROVE ISD HOUSTON LSD HOWE LSD HUCKABAY LSD HUDSON LSD HUGHES SPRINGS LSD HUMBLE LSD HUNTINGTON LSD HURST - EULESS - BEDFORD LSD INDUSTRIAL LSD ~ INGRAM LSD IREDELL ISD ~ ITALY LSD ~ JACKSBORO ISD ~ SACKSONV~,;.~ LSD ~ JASPER LSD ~ JIM HOGG CO ISD ~ $OAQUIN LSD ~ 3OHNSON CITY LSD - JUNO LSD ~ KARNES CITY LSD ~ KATY ISD KAUFMAN ISD KELLER LSD KI~IP 1SD KENDLETON LSD KENI~Y COUNTYWIDE LSD KENN~ ~ KENNEDALE LSD KERENS LSD KEP, Mrr LSD KILGOKE LSD KINGSVILLE LSD KIRBYV~.T-~ LSD LA FERIA LSD LA IOYA LSD LAPKYOK LSD LA VILLA LSD LAKE WORTH LSD LAMA~ CLSD LANEXqLLE LSD LASARA LSD LATEXO LSD LEFOP, S LSD LEONARD ISD LEVEKE1TS CHAPEL LSD LEXINGTON LSD I ]7,1DALE LSD LII~DEN - KILDAKE CISD LINGLEVILLE LSD L1PAN lSD LITTLE CYPRESS - MAURICEV~-; ]~ CISD LI/q'LI~ .n LSD LIVINGSTON ISD LLANO LSD LOCKHAKT LSD LOHN LSD ~ LOM~TA LSD - LONDON LSD ~ LOKENA lSD May 09, 2002 2 / 4 DELINQUENT TAX CLIENT LIST INDEPENDENT SCHOOL DISTRICTS REPRESENTED BY LINEBARGER GOGGAN BLAIR PENA & SAMPSON LLP LOS FRESNOS CISD LOUISE ISD LOVFJOY LSD LOVELADy LSD LUFKIN ISD LULING LSD LYFORD CISD MABANK LSD MAD[SONV[I',T .R CISD MALAKOFF LSD MARIETTA CLSD MART LSD MASON ISD MATt{IS lSD MAY LSD MCALLEN LSD MCFADDEN LSD MCLEAN ISD MCLEOD lSD MCMIJLLEN CO ISD MEDINA LSD MEGARGEL LSD MELLSSA ISD lVI~KCEDES ISD MERIDIAN lSD MEYERSV~.L~ ISD MIDLOTHIAN ISD MIDWAY lSD M]IDRED LSD MILFORD ISD Iv~I .l 1~, GROVE lSD MONAHANS - WICKETr - PYOTE ISD MONTE ALTO lSD MONTGOMI~.y ISD MOKGAN ISD MORGAN M/LL ][SD MOULTON lSD MOUNT VERNON [SD NtT ENTERPRISE ISD MULLIN LSD ~ MUMFORD LSD NEDERLAND 1SD NEEDVII,I~ ISD NEW BRAUN!;ELS lSD NEW DIANA LSD NEW SUMMERFI]HI,D ISD N/XON - SMILEY CISD NORDMEIM LSD NORMANGEE LSD NOKTH EAST ISD NORTH FOREST ISD NORTH HOPKINS lSD NORTH LAMAR ISD NORTH ZULCH ISD NORTHSIDE ISD ('BEXAR) NORTI-BA~ST LSD NOVICE ISD NURSERY ISD ODEM-EDROY lSD ONALASKA ORANGE GROVE ISD ORAN~.n ISD ORE C~Y LSD OVERTON ISD PALACIOS ISD PAMPA ISD PANTHER CREEK CISD PARADISE LSD PARIS LSD PAWNEE LSD PEARSALL ISD PEASTER LSD PECOS - BARSTOW - TOYAH PERRIN- WHITr CISD PETROLIA ISD PETTUS lSD PEWIT'F LSD PHARR-SAN/UAN-ALAMO ISD PITTSBURG ISD PLEASANTON lSD POINT ISABEL ISD POOL%m .r .~. ISD PORT ARANSAS ISD PORT ARTHUR LSD POKTNECHES - GROVES lSD POTH ISD PRAIRIE LEA ISD PRAIRILAND ISD PKEMONT ISD PRIDDY LSD PROGP. ESO LSD PROSPER LSD QUEEN CITY 1SD qunva~ ISD RAINS ISD ~ COMMON SCH DIST RAYMONDVILLE LSD KEAOAN CO LSD RED OAK LSD REFUGIO lSD RICAKDO ISD RICE LSD RICHLAND SPRINGS ISD RIESEL ISD RIO GRANDE CITY CISD RIO HONDO LSD RIVERCREST LSD ('rALCO-BOGATA CLSD) ROBINSON LSD KOBSTOWN ISD ROCKWALL ISD ROMA LSD ROSEBUD - LO'IT LSD ROUND ROCK ISD ROXTON ][SD RO¥SE CITY RUNGE ISD RUSK LSD S AB II',FE LSD SALTE2LO LSD SAM PAY'BURN ISD SAN ANGELO LSD SAN ANTONIO LSD SAN AUGUSTINE ISD SAN BENITO SAN DIEGO LSD SAN ELIZARIO 1SD JMay09, 2002 3/4 DELINQUENT TAX CLIENT LIST INDEPENDENT SCHOOL DISTRICTS REPRESENTED BY LINEBARGER GOGGAN BLAIR PENA & SANIPSON LLP ~ SAN FELIPE-DEL RIO CISD ~ SAN ISIDRO ISD ~ SANMARCOS CISD - SAN PERLITA ISD ~ SAN SABA LSD ~ SANTA ANNA lSD ~ SANTA GEKTRUDIg ISD ~ SANTA MARIA ISD ~ SANTAKOSA LSD ~ SAVOY ISD ~ SCUR-KY - ROSSEK ISD ~ SEALY ISD ~ SHAKYLAND ISD ~ SHELBYVILLE LSD ~ SHERMAN 1SD ~ SHINEK ISD ~ SIERRA BLANCA ISD ~ SINTON ISD ~ SKIDMORE-TYNAN ISD - SLIDELL ISD ~ SLOCUM ISD ~ SOCORRO ISD ~ SOMERSET ISD ~ SOUTH SAN ANTONIO LSD ~ SOl_rrH TEXAS ISD SOUTHSIDE ISD ~ SPADE LSD ~ SPRING HILL ISD ~ SPRINGLAKE-EAKTH mD ~ SPRINGTOWN ][SD ~ SPUP, GEK LSD ~ STAP. ISD ~ gTEPHIiNV1LLE ISD ~ STOCKDALE lSD ~ SULPHUP. BLUFF ISD ~ SULPHUK SPRINGS ISD ~ SUNNYVALE ISD ~ SWEET HOME LSD - TAFT LSD ~ TAKKINOTON ISD ~ TATUM ISD - TENAHA ISD ~ TERRELL ISD ~ THREE KIVEKS 1SD - TIDEH~VEN ISD ~ TIMPSON LSD ~ TOLAK LSD ~ TORNILLO ISD ~ TRENTON ISD ~ TRINITY ISD ~ TKOUP LSD ~ TULOSO - MIDWAY ISD - TYLEK ISD ~ UNION GROVE ISD ~ UNION HILL ISD ~ VAr].h'~Y VIEW 1SD ~ VAN ALSTYNE ISD - VAN 'FLECK ISD ~ VERIBEST ISD ~ VIDOK ISD ~ VYSEHRAD LSD ~ WAELDEK ISD ~ WALL lSD - WALNUT SPRINGS ISD ~ WARREN LSD ~ WATE~ VAr .r .~Y ISD - WEATHERFORD ISD ~ WEBB CISD - WELLS ISD ~ WESLACO ISD ~ WEST ISD ~ WEST OIL4NGE - COVE CISD - WEST OSO LSD ~ WEST KUSK CO CISD ~ WEST SABINE ISD ~ WESTBKOOK ISD ~ WESTHOFF ISD ~ WESTPHALIA LSD ~ WHARTON LSD ~ wHrrEHOUS£ ISD - wHrrEsBOI~O lSD - WILLIS lSD ~ WIMBERLEY lSD ~ WINK - LOVING ISD ~ WINNSBORO ISD WINONA lSD WOLFE CITY ISD WOODSBORO ISD WOODVILLE ISD YANTIS ISD YOAKUM ISD YORKTOWN ISD YSLETA ISD ZAPATA CO ISD ZAVALLA ISD ZEPHYR ISD May 09, 2002 DELINQUENT TAX CLIENT LIST COUNTIES REPRESENTED BY LINEBARGER GOGGAN BLAIR PENA & SAMPSON LLP ANGELINA COUNTY ARANSAS COUNTY ARCHER COUNTY AUSTIN COUNTY BEE COUNTY BEXAI{ COUNTY BLANCO COUNTY BI{OOKS COUNTY BI{OWN COUNTY CALDWELL CODTfrY CAMI~ON COUNTY CAMP COUNTY CHAMBERS COUNTY CLAY COUNTY COLEMAN COUNTY CRANE COUNTY CULBEP, SON COUNTY DALLAS COUNTY DELTA COUNTY DEWlqT COUNTY DIMM1T COUNTY DUVAL COI/NTY ECTOI{ COUNTY EL PASO COUNTY ELLIS COUNTY FALLS COUNTY FANNIN COUNTY FORT BEND COUNTY FILIO COI. JNTY CONZ.4&ES COUlqTY GRAY COUNTY GRAYS ON COUNTY GR~GG COUNTY HAM/LTON COUNTY HAIUUS COUNTY HIDALGO COUNTY HOOD COUNTY HOPKINS COUNTY HUDSPETH COUNTY HUNT COUNTY lACK COUN75r lACK. SON COUN7~ ~ IASP]~I{ COUNTY ~ JEF~ DAVIS COUNTY J ~'~'~k%SON COUNTY JIM HOGG COUNTY KARNES COUNTY KAUFMAN COUNTY KLn/qED¥ COUNTY KING COUNTY K]IqNEY COUNTY I(LEBERG COUNTY LA SALLE COUNTY LAMAK COUNTY LAMB COUNTY LAMPASAS COUNTY LAVACA COUN'rY LEE COUNTY LIMESTONE COUNTY LrVE OAK COUNTY LLANO COUNTY LOVING COUNTY MADISON COUNTY MARION COUNTY MASON COUNTY MATAGORDA COUNTY MCCULLOCH COUNTY MCLENNAN COUNTY MC~ COUNTY MILLS COUNTY MONTAGUE COUNTY MONTGOMERY COUNTY MORRIS COUNTY NAVARRO COUNTY NUECES COUNTY ORANGE COUNTY MARKER COUNTY PECOS COUNTY POLK COUNTY PAINS COUNTY REAGAN COUNTY RED ~ COUNTY KEEVE$ COUNTY REFUGIO COUNTY ROBEKTSON COUNTY ROCKWALL COUNTY RUSK COUNTY SABINE COUNTY SAN AUGUSTINE COUNTY SAN PATP. ICIO COUNTY SAN SABA COUNTY S~4~.T ay COUNTY SMITH COUNTY STARR COUNTY TARItANT COUNTY TOM C-t{EEN COUNTY TP, IN1TY COUNTY TYLER COUNTY UPSHUI{ COUNTY VAL VERDE COUNTY VICTORIA COUNTY WALLEI{ COUNTY WARD COUNTY WASHINGTON COUNTY WI-L4KTON COUNTY W]LLACY COUNTY WILSON COUNTY WINKLEK COUNTY WISE COUNTY WOOD COUNTY ZAPATA COUNTY ZAVALA COUNTY May09,2002 I 1 APPRAISAL DISTRICTS REPRESENTED BY LINEBARGER GOGGAN BLAIR PENA & SAMPSON LLP ANDERSON CAD ANGELINA CAD ARANSAS CAD AUSTIN CAD BANDERA CAD BEE CAD BLANCO CAD BROWN CAD CALDWELL CAD CAMEKON AD CAMP [:AD CASS CAD C~:KOKEE CAD CLAY CAD COLEMAN COUNTY TAD COMANCHE CAD COOKE CAD CRANE CAD CULBERSON CAD DELTA CAD DEWITT CAD DIMM1T CAD DUVAL CAD ECTOK CAD FANNIN CAD FRANKLIN CAD FRIO CAD GALVESTON CAD # GONZALES CAD # OKAY CAD * GRAYSON CAD - HAMILTON CAD *HAP, RISON CAD - HOOD CAD # HOPKINS CAD - HOUSTON CAD - HUDSPETH AD - IA. CK CAD ~ IASPEK CAD ~ JIM WIH_LS CAD * IOI:tlqSON CAD # KARNES CAD # KAUFMAN CAD I ~r~v CAD # LA SALLE CAD - LAMAK CAD - LAMPASAS CAD ~ LAVACA COUNTY CAD ~ LIVE OAK CAD # LLANO CAD # MADISON CAD # MARION CAD - MASON CAD # MATAGORDA CAD - MCCULLOCH CAD # MCMULLEN CAD # MONTAGUE CAD - MORRIS CAD # NACOGDOCKES COUNTY CAD - NAVAI~O CTO * NEWTON CAD # NUECES CAD # OKANGE CAD ~ PARKEK CAD # PECO$ CAD # POLK CAD - PAINS COUNTY TAD - KED KIVEK CAD # REEVES CAD ' KOBEKTSON CAD ~ KOCKWALL CAD # KUNNELS CAD # RUSK CAD # SABINE CAD # SAN AUGUSTINE CAD * SAN PATKICIO CAD - SAN SABA COUNTY CAD # SHELBY COUNTY TAD # SM1Tt{ CAD # STARK CAD - TOM GREEN CAD # TRAVIS CAD # TRINITY CAD ~ TY1,EK CAD # UPSHUR CAD ii VAN ZANDT CAD # WALKI~ CAD # WAT.r..-~K CAD # WARD CAD ~ WASHINGTON CAD # WHARTON COUNTY CAD # WILLACY CAD I WILSON CAD # WENXLER CAD ~ WISE fAD # WOOD CAD # ZAPATA CAD - ZAVALA CAD # APPRAISAL ONLY * COLr-~-CTOK ONLY ~ APPP,/COLL I DTAX CLIENT ONLY May 09, 2002 1 1 Agenda 02-021 06/18/02 #18 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET June 18, 2002 Materials Management Questions concerning this acquisition may be directed to Bruce Henington 349-7200 Kathy DuBose, Fiscal and Municipal Services~~i~ SUBJECT An Ordinance accepting competitive bids and awarding a public works contract for the replacemem of the Civic Cemer HVAC system; providing for the expenditure of funds therefore; and providing for an effective date (Bid 2852-Civic Cemer HVAC replacemem awarded to BCI Mechanical, Inc. in the amount of $89,410). BID INFORMATION This bid is for the HVAC Replacemem at the City of DeMon's Civic Cemer. The project includes all material and labor to provide a new air handling unit (AHU) and roof top unit (RTU), plus an upgrade of the control system. RECOMMENDATION It is recommended that this project be awarded to the lowest responsible bidder, BCI Mechanical, Inc., in the amount of $89,410 (includes Alternates l&2). Five competitive bids were received ranging from $87,650 to $147,951 for the base bid. BCI Mechanical's base bid amount was for $87,650 excluding the alternates. Alternate 1 in the amount of $560 is an extended warranty for five years for the AHU, and Alternate 2 in the amount of $1200 is an extended five-year warranty for the RTU. It is in the best interest of the City of Denton to award this bid to BCI Mechanical, Inc. in the amount of $89,410. PRINCIPAL PLACE OF BUSINESS BCI Mechanical, Inc. Denton, TX 76201 STAFF COST ESTIMATE The Facilities Managemem Departmem estimated the cost for this project at $114,000. This project comains some complicated tasks such as roof cut, and connecting to 30-year old ductwork and plumbing, which could result in some additional costs. Agenda Information Sheet June 18, 2002 Page 2 ESTIMATED SCHEDULE OF PROJECT It is anticipated that the Notice to Proceed will be issued on or about July 1,2001 for material and equipment, and a second notice to proceed will be issued for onsite work on October 1, 2002. Estimated completion date is 30 days from the second Notice to Proceed. FISCAL INFORMATION This project is funded from the Civic Center fund account 10005500 in the amount of $89,410. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Tabulation Sheet 1-AIS-Bid 2852 Civic Center HVAC Replacement I-- Z LLI ,< I Z Z 0 Z 0 ,,-I <, ¢ o ~ ,,,,,, * "- ~ >- >- ,~ 0 o o o r./) r./) -~ '~- ~ W W L~W r~ o o o o o~ ~ co W W (.o (.o cxl W W LLI LLI ~ ~ ~ D 0 n < < ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE REPLACEMENT OF THE CIVIC CENTER HVAC SYSTEM; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 2852- CIVIC CENTER HVAC REPLACEMENT AWARDED TO BCI MECHANICAL, INC. IN THE AMOUNT OF $89,410). WHEREAS, the City has solicited, received and tabulated competitive bids for the construction 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 construction 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. That the following competitive bids for the construction 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 2852 BCI Mechanical, Inc. $89,410 SECTION 2. That the acceptance and approval of the above competitive bids shall not constitute a contract between the City and the person submitting the bid for construction 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. That the City Manager is hereby authorized to execute all necessary written contracts for the performance of the construction 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. That 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. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of .,2002 EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD- BID 2852 Civic Center HVAC Replacement Agenda 02-021 06/18/02 #19 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET June 18, 2002 Materials Management Questions concerning this acquisition may be directed to Vance Kemler 349-8444 Kathy DuBose, Fiscal and Municipal Services~~i~ SUBJECT An Ordinance accepting competitive bids and awarding a public works contract for the construction of landfill cells in Phase 2 of the City of Demon landfill; providing for the expenditure of funds therefore; and providing an effective date (Bid 2859 - Construction of Landfill Cells in Phase 2 awarded to L.D. Kemp Construction in the amount of $878,497.50). BID INFORMATION The bid is for the construction of Landfill Cells creating a solid waste disposal area in excess of 650,000 cubic yards at the City of Demon landfill. City of Demon crews have excavated approximately 550,000 cubic yards of material leaving a balance of approximately 100,000 cubic yards to be removed. The project includes all labor and materials for the remaining excavation, installation of the clay liner, installation of geo-membrane liners, installation of the leachate collection system, installation of the protective cover, perimeter channel work, access road work and other site work. Cell life is projected to be approximately three years. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) The Public Utility Board approved this item on June 3, 2002. The bond sale for this project was approved approximately a year ago and the FY2002 CIP funding was approved by the City Council during the budget process. RECOMMENDATION It is recommended that this project be awarded to the lowest responsible bidder, L.D. Kemp Construction in the amount of $878,497.50. PRINCIPAL PLACE OF BUSINESS L.D. Kemp Construction Fort Worth, TX STAFF COST ESTIMATE The Solid Waste Division estimated the cost for this project at $1,500,000. The bids ranged from $878,497.50 to a high bid of $1,154,513.50. Agenda Information Sheet June 18, 2002 Page 2 ESTIMATED SCHEDULE OF PROJECT It is anticipated that the Notice to Proceed will be issued on or about July 1, 2002. completion date is 120 days from Notice to Proceed. FISCAL INFORMATION This agreement will be funded from Solid Waste bond account 66000400. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Estimated Attachment 1: Tabulation sheet 1-AIS-Bid 2859 Construction of Landfill Cells in Phase 2 ~-- Z 0 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF LANDFILL CELLS IN PHASE 2 OF THE CITY OF DENTON LANDFILL; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 2859- CONSTRUCTION OF LANDFILL CELLS iN PHASE 2 AWARDED TO L.D. KEMP CONSTRUCTION IN THE AMOUNT OF $878,497.50). WHEREAS, the City has solicited, received and tabulated competitive bids for the construction 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 construction 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. That the following competitive bids for the construction 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 2859 L.D. Kemp Construction $878,497.50 SECTION 2. That the acceptance and approval of the above competitive bids shall not constitute a contract between the City and the person submitting the bid for construction 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. That the City Manager is hereby authorized to execute all necessary written contracts for the performance of the construction 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. That 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. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of .,2002 EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD- BID 2859 Construction of La~dfill Cells Agenda 02-021 06/18/02 #20 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET June 18, 2002 Materials Management Questions concerning this acquisition may be directed to Ross Chadwick 349-8101 Kathy DuBose, Fiscal and Municipal Services~~i~ SUBJECT An Ordinance providing for the expenditure of funds for the purchase of oNdoor warning sirens and peripheral items which are available from only one source in accordance with the provisions of State Law exempting such purchases from requirements of competitive bids; and providing an effective date (PO 105276 to Gilford Electric in the amount of $87,393 for three additional sirens for oNdoor warning system). PURCHASE INFORMATION This purchase order is for the sole source acquisition of additional sirens for the City of DeNon Warning System. The sirens will be installed in the University of North Texas Campus area. Included in this purchase along with the UNT installation are software compNer upgrades for the existing system, paging software to notify designated persons if a problem exists or a siren is activated, and an upgrade to the University's existing sirens. These additional siren installations and miscellaneous software upgrade are available from only one source, Gilford Electric. This is due to required compatibility with existing units and software copyright. Materials, services, or supplies protected by paten or copyright are exempt from the bid process as indicated in Chapter 252 of the Texas Local GovernmeN Code. RECOMMENDATION We recommend Purchase Order 105276 to Gilford Electric, Inc. be approved in the amount of $87,393. PRINCIPAL PLACE OF BUSINESS Gilford Electric, Inc. Fort Worth, TX ESTIMATED SCHEDULE OF PROJECT Delivery and installation is estimated to be 45-60 days after receipt of an order. Agenda Information Sheet June 18, 2002 Page 2 FISCAL INFORMATION The City of Demon's portion of the funding for this warning siren system addition and upgrade in the amount of $18,655 is available from account 10003600.1365.40100. The University of North Texas will reimburse the City of Demon for the balance of $68,738 as per the Imerlocal Agreemem approved by Council on May 21, 2002. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Attachment 2: Attachment 3: Purchase Order 105276 Proposal from Gilford Electric, Inc. Sole Source Certification 1-AIS-Giffbrd Electric Attachment 1 lull o~ Attachment GIFFORD ELECTRIC, INC April 3, 2002 City of Denton OUTDOOR EMERGENCY WARNING SIREN AND CONTROLLER SYSTEM Installed on University of North Texas Campus The bid proposal for this Outdoor Warning Siren Sy.qtem packet should include all components, parts, service, devices, electrical service, batteries, labor, permits, fees, freight and any other items necessary for delivery, installation, and proper operation of the system. We are quoting an American Signal T128AC/DC compatible to the existing siren in the city of Denton ITEM AND DESCRIPTION 9UANTITY UNIT PRICE Total Price Windows based Map Software and Control Program revision for Denton to accept the new siren sites 1 $300.00 $300.00 128 dB AC/DC Sirens equal to those specified on 50foot galvanized steel embeded pole, remote terminal (RTU) decoder radio controls. Includes two way 150 MHz radio 1 $19,100 Materials $19,100.00 $4,600 Labor $4,600.00 128 dB AC/DC Siren as above on the exisisting steel pole with remote terminal(RTU),decoder. radio controls includes the two way 150 MHz radio. Remove existing Siren and associated parts. $16546 Materials $49,638.00 $3825 Labor $11,475.00 $760 Siren Removal $2,280.00 TotalPrice for above $87~393.00 P.O. BOX 7441 * 3801 EAST FIRST STREET ~ FORT WORTH, TEXAS 75111 * (817) 834~6308 METRO (8171 429-9220 * FAX (817} 831-8245 The 60 amp 208 or 240 volt electrical service to the siren not included in our bid. Sprinkler and or repairs to sprinkler system are also not included. This bid will require Gilford Electric to use a minimum of a 15 ton crane to install or remove sirens and or siren poles. Please note our standard payment terms as follows: The Owner shall pay the Contractor in accordance with the following payment schedule: 25% of the total contract amount due at the time of placement of order for sirens parts, encodcrs~ software and misc., associated parts as required to constitute a complete "turn key" installation. 45% of the total contract amount due at the time of receipt of the major equipment 20% of the total contract amount due after completed installation 10 % of the total contract upon acceptance of project Respectfully submitted, Gary R. Debenport Vice President Page 2 P.O. BOX 744 t * 3801 EAST FIRST STREET * FORT WORTH, TEXAS 76111 * METRO (817) 429-9220 * FAX (817) 831-8245 (817) 834-6308 Attachment 3 May 23, 2002 Gtfford *Ele~ Company F°rt~Worth, .TX Attn.; Mr. Gene Gifford Dear Mr. Gifford, This letter is to confirm for your client in Denton, Texas that Gifford Electric Company is the SOle distributor of American Signal Corporation community warnt~ products in the ~ate of Texas. We certainly appreciate the relationship we have had over the last 22 years and having ~ Electric Company represent our warning system products. We also look forward to supporting you in your bid for work with the City of Denton. Thank you and Good Luck on the Denton Texas Proposal. Please let me know if there is any other support on the project that we may provide. Sincerely, AMERICAN SIGNAL CORPORATION dale a. Moeller President/CEO ORDINANCE NO. AN ORDINANCE PROVIDING FOR THE EXPENDITURE OF FUNDS FOR THE PURCHASE OF AN OUTDOOR WARNING SIREN AND PERIPHERAL ITEMS WHICH ARE AVAILABLE FROM ONLY ONE SOURCE IN ACCORDANCE WITH THE PROVISIONS OF STATE LAW EXEMPTING SUCH PURCHASES FROM REQUIREMENTS OF COMPETITIVE BIDS; AND PROVIDING AN EFFECTIVE DATE (PO 105276 GiFFORD ELECTRIC, INC. IN THE AMOUNT OF $87,393). 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 i. That the following purchase of materials, equipment or supplies, as described in the "Purchase Orders" listed hereon, and on file in the office of the Purchasing Agent, are hereby approved: PURCHASE ORDER 105276 VENDOR Gilford Electric, Inc. AMOUNT $87,393 SECTION ii. That 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 iii. That the City Manager is hereby authorized to execute any contracts relating to the items specified in Section i and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION IV. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 1 - Giftbrd Electric Inc. SOLE SOURCE-2002 Agenda 02-021 06/18/02 #21 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET June 18, 2002 Materials Management Questions concerning this acquisition may be directed to Alex Pettit 349-8595 Kathy DuBose, Fiscal and Municipal Services4:~ SUBJECT An Ordinance of the City Council of the City of DeNon, Texas authorizing the City Manager or his designee to execute an agreement on behalf of the City of Denton to purchase installation, configuration, and associated support hardware and software for a Xiotech Storage Area Network from the Harding Group, Inc., a Qualified Information Services Vendor (QISV) of the State of Texas. (Purchase Order 105224-The Harding Group, Inc. in the amount of $169,930). BID INFORMATION This device will provide platform independem network disk storage, and will be attached concurremly to IBM, Novell, and Windows NT/2000 servers. This device will be initially configured with approximately 2TB (Terabytes of disk space, and is curremly capable of containing 4.9TB in its original configuration, and with an expansion cabinet, almost 10TB. This device will provide the City of DeNon an easily configurable and expandable source of network storage. Attached servers will see this unit as imernal drive space, and if additional space is required for an application or for storage, existing volume space can be expanded withom imerruption. Additionally, this unit in conjunction with a similar unit to be purchased in the future will provide remote storage capability for disaster recovery purposes. RECOMMENDATION We recommend Purchase Order 105224 to The Harding Group, Inc. be approved in the amount of $169,930. PRINCIPAL PLACE OF BUSINESS The Harding Group, Inc. Arlington, TX ESTIMATED SCHEDULE OF PROJECT The full implememation of this network upgrade is scheduled to be completed the first week of August 2002. Agenda Information sheet June 18, 2002 Page 2 FISCAL INFORMATION Funding for this project is available from the Technology Plan Bond Fund 83001300 in the following amounts: 83001300.1350.30100 83001300.1355.30100 83001300.1360.30100 Software $ 42,000 Hardware $122,435 Installation $ 5,495 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Purchase Order 105224 Attachment 2: Quotation from The Harding Group Attachment 3: QISV Certification 1-AIS-The Harding Group Attachment 1 Attachment 2 g mellp May 28, 2002 Anthony Caranna City of Denton 601 E Hickory Denton, Texas 76205 The Harding Group will provide installation services to The City of Denton for the Xiotech Magnitude solution. The Inotallation will include up to oight servers. Current servers can be utilized by City of Denton (Compaq Protiant, Dell Poweredge, IBM RS6000 with available PCI slots) and existing operating systems (Netware 4.x-6.x, NT/W2K, IBM AIX). A fibre channel switch will also be installed to operate with the hardware and software listed above. The Harding Group will utiIize our relationship with Xiotech in the event support is necessary during the installation. Thank you for your continued support of The Harding Group. Tim Spires VP The Harding Group, Inc 2012 E Randol Mill Suite 216 Arlington, Texas 76011 817.461.3393 817.461.3394 (fax) ech® A Seagate Company ~55 Fyng Cloud Drive Eden Prairie, MN 55344-3305 Quotation City Of Denton Q.ote Date: 5/13/2002 TO: TEL: Quote Contains May Promotional Pricing Expires 5/3112002 FA.X; EMAtL: This Quotation contains XlOtech's Terms and Conditlons of Sale. If you did not receive XlOtech's Terms and Conditions of Sale, please contact XlOtach Immediataly. ~ Item Pa~t N.a.,m.,b,~r, Description ...... P~lce Un. Prlcin~ F. Jd~n~fen System Bess MAGNITUDE l fOV wIth 4 800090-000 Base cabtnet, 32 drlve bays, lntagratad UPS, MAGNITUDE $ 30,000 $ 22,500 $ 22,5~0 active ports Fibre storage switch, four active ports, high-performance Intelligent RAID storage Proeesso¢, N+f hot-replaceable power supplies, fans, and blowers Connectivity f 2 20m $C Duplex/SC Duplex Fiber 840059-002 20m SC Duplex/$C Duplex F~ber Optic Patch Cord $ 195 $ 176 $ 2, t12 Optic Patch Cord 4 5m SC Duplex/SC Duplex FIber 840059000 5m SC Duplex/SC Duptex Fiber Optic Patch Cord $ 125 $ 113 $ 452 Optic Patch Cord Gadzoox 3000 3U Chassl$ 770010-000 Gadzoox 3OOO 3U Chessts duai PS, basic sofP, vare snd 3 open $ 4,995 $ 4,905 $ 4,805 Gadzoox 3130 8-Port Blada 770011.000 Gedzoox 31'30 8.Port BIsde for 3000 Chasls $ [250 $ 2,100 $ 6,504 Gadzoox Rack-Mount kit 770017000 Gadzoox Reck-Mount kit $ 195 $ f76 $ 176 MAGNITUDE Fibre Chann~ Host 830030.000 Hlgh-performenos, MAGNITUDE Fibre Channel fibre $ 2,595. $ 2,336 $ 9,344 Adapter Board connectivity adapter. 12 QLoglc 2200 33 MHz Sarver HBA 8800f2.000 QLogic 2200 33 MHz $$rver HBA (NatWare 6.0, Linux, NT 4.0, $ t,295 $ 1,166 $ 13,992 (NetWare 6.0, Llnux, NT S.0, Win2000, SotsHs X88, SotaHs Spare) Win2000, Solaria X86, Soteds Storage sw~pe~e, d~e shuNle 3 PROMOTION. ~ T3 GB 3~ Pmmo~o~l o~ ~at p~vides o~ f~ ha~ drive ~ ev~ $ (2,8~) $ (2,~) $ (~,~) fO,~RPM Dd~ se~n d~ of ~ual size and s~. ~ expl~ May 31, Software Options PROMOTION · U~grada from ? 300810-200 Promotional ot~' to provide a fre~ upgrade from 7 Server Restriction to ~5 Server Restriction to 15 Server Res~riction with the purchase ora Restriction MAGNITUDE hsrciware plafform. Offer explms Msy 31, 2002, and other reade'done apply. REDt Soft, ere Suite - 7 $e~r 800056.700 In;ludes REDI SAN Links, REDI StOrage Manager, REDI Zone, $ 82,500 $ 42,000 $ 42,000 Lloense Res~rrer~on ~D~ Petit, ff~ volume E#rector, REDI Copy, REDI Control, REDI Control Scheduler, and 4-Port Activation Switch. I REDI Sof~vare Suita REDI Family upgrade. 7 .~;enmr License ResUfctton 800043.70F Upgrade from any REDI Famlty product $ 44,000 $ 44,000 $ 44'000 Professional Services PROMOTION- Discount off 300530-100 Promotional offer that provides a dAteount off the MAGNITUDE $ (3,000) $ (3,000) $ MAGNITUDE Standard System Standard System Installation price with the purchase ora Installation MAGNITUDE hardware p/atforrrl. Offer expires May 31, 2002, and Other restrictions apply. ~;an~anl ~u~/~wt;ctt msrallauon oleeus.ooo Installation of 1 XlOtech.eertifled FC-AL Switch or Hub $ 1,2~0 $ 1,250 $ 1,200 (each) Standard Shlpplng 020004-000 Guaranteed, insured, $tandard shlpplng $ 1,000 $ 1,000 $ ~,000 This Is Page 1 of 4. If you did not receive all 4 pages of this quotation, please contact XlOtech immediately. f StendardSystemlnsfalla#on(upt~ 010001.000 On.~iteinstaliation, conflguratlon, ActlvaWatohactivetlon, and$ 4,495 $ 4,495 $ 4,495 8 servers) orfentation for up to 5 company employees. Spare Parts f Pr~c:e~sor TrayAssembly f P.~OMOTION - ~ dl.~,~lC Spar~ Processor Tray Assemb/y Service Agreement 880009000 Pmcessor/trayassembly $ 11,500 $ 7,500 $ 7,500 purchase ora spare Pro¢es~or Tray. Offar explms May 3f, 2002, and other r~b'ictlons apply. f XlOtec. hCerfffledEngtneerTralnlng 000156.000 XlOtech CertlfledEnglneerTralnlng $ 1,750 $ 1,750 $ 1,750 IIII IIIIIIIII I IIIIIIIBIIII II Terms and Conditions Please reference the "Quote No." at the to;= of this auotation, in yourpuroha;)e ord~K)ffor Yalld for 30 days from Quote Date. Payment terms are Net-30. Taxes, duties, shipping and other similar costs not included unless otherwise stated above. The attached "XIOtech Terms and Conditions of Sale" apply and are incorporated herein by this reference, if you did not receive "XIOtsch Terms and Conditions of Sale", please contact XIOtech immediately, Customer expressly agrees that all purchases from XlOtech shall be governed by Ute "XlOtecn Terms an¢~ Conclitlons of Sale." Results for QISV only Search A~tachment 3 Results for QISV only Search CMBL/HUB Vendor Contact Information ] Comptrollg,s Tax Stares ~ Vendor ID / 1752621952600 / 66746 Number: HUB Status: A (HUB on CMBL) Vendor HARDING GROUP INC, THE Name: Vendor SUITE 216 Address: 2012 E RANDOL MILL RD ARLINGTON, TX. 76011 County: TARRANT Contact: TERRY BECK Phone / Fax: ]1817-461-3393 / 817-461-3394 Email Address: TBECK@HARDING-GROUP.COM Ethnicity WO / F Gender: COMPUTER NETWORK CONSULTING AND Business SERVICES;HARDWARE AND SOFTWARE PRODUCTS FOR Description: NETWORKS AND APPLICATION SOFTWARE/HARDWARE FOR END USERS. Texas Office: [Y QISV: [Ca~ta!og Small Business'. CMBL Expire [08/21/2002 Date: Date:HUB Expire [02/27/2003 t t i vendor found where vendor ID is 1752621952600. http://www.tbpc.state.tx.us/cgi-bin/cmbl/cmblhub.pl 5/30/02 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE AN AGREEMENT ON BEHALF OF THE CITY OF DENTON TO PURCHASE iNSTALLATiON, CONFIGURATION, AND ASSOCIATED SUPPORT HARDWARE AND SOFTWARE FOR A XiOTECH STORAGE AREA NETWORK FROM THE HARDING GROUP, iNC., A QUALIFIED iNFORMATiON SERVICES VENDOR (QiSV) OF THE STATE OF TEXAS. (PURCHASE ORDER 105224- THE HARDING GROUP, iNC. iN THE AMOUNT OF $169,930). WHEREAS, the City Council of the City of Denton has heretofore adopted Resolution 92- 019 pursuant to Section 2157.067 of the Texas Government Code and Sections 271.082 and 271.083 of the Texas Local Government Code which authorizes the City to participate in the State Purchasing General Services Commission's Qualified information Service Vendor Catalogue Purchase Method provided for in Subchapter B of Chapter 2157 of the Texas Government Code (the "QiSV Catalogue"); and WHEREAS, the herein described vendor is a qualified vendor in the QISV Catalogue and the contract authorized by this ordinance is in the best interests of the City and complies with the requirements of Subchapter B of Chapter 2157 of the Texas Government Code as a QiSV Catalogue purchase; 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 numbered items in the following numbered purchase order for materials, equipment, supplies, or services, shown in the "Purchase Orders" listed hereon, and on file in the office of the Purchasing Agent, are hereby approved: PURCHASE ORDER VENDOR AMOUNT 105224 Harding Group, inc. $169,930 SECTION 2. By the acceptance and approval of the above numbered items set forth in the attached purchase orders, the City accepts the offer of the persons submitting the bids to the General Services Commission for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, conditions, specifications, standards, quantities and for the specified sums contained in the bid documents and related documents filed with the General Services Commission, and the purchase orders issued by the City. SECTION 3. Should the City and persons submitting approved and accepted items set forth in the attached purchase orders wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by the General Services Commission, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications and standards contained in the Proposal submitted to the General Services Commission, quantities and specified sums contained in the City's purchase orders, and related documents herein approved and accepted. SECTION 4. By the acceptance and approval of the above numbered items set forth in the subject purchase orders, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved purchase orders or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of ., 2002. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3- ORD- The Haxding Group Agenda 02-021 06/18/02 #22 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: June 18, 2002 Water Utilities Howard Martin, 349-8437 SUBJECT AN ORDINANCE OF THE CITY COUNCIL OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A WATER MA1N PRORATA REIMBURSEMENT AGREEMENT BETWEEN THE CITY OF DENTON AND PULTE HOMES FOR REIMBURSEMENT OF THE COSTS OF BUILDING A WATER MAIN, THROUGH PRO- RATA CHARGES PAID TO THE CITY; AUTHORIZING THE TRANSFER OF FUNDS PURSUANT TO THE AGREEMENT; AND PROVIDING AN EFFECTIVE DATE. BACKGROUND The developer, Pulte Homes, is developing The Vintage Phase I Subdivision, a site on Vintage Boulevard on Bonnie Brae. (Exhibit I). Pulte Homes has installed a 20-inch water main as part of a city oversize cost-participation agreement for this project. The off`site water main shall be subject to pro-rata reimbursement in accordance with the agreements (Exhibits II) and Denton Development Code 35.21.10.1. The cost of the design, construction and installation of the water facilities subject to pro-rata reimbursement is one hundred seventy one thousand five hundred seventy four dollars and sixty five cent ($171,574.65) or thirty one dollars and sixty five cents ($31.65) per linear foot for the five thousand four hundred and twenty one (5,421) linear feet of off-site facilities. The City will transfer to the developer pro-rata charges collected for a period of 20 years from the date facilities are accepted by the City. However, the City will not transfer or reimburse the developer funds in excess of the certified cost of the facilities. RECOMMENDATION Staff recommends approval of the agreement PRIOR ACTION/REVIEW (Council, Boards, Commissions) The oversize cost participation agreement was previously approved by the Public Utilities Board and Council. FISCAL INFORMATION Any customer connecting to the water line will pay pro rata charges based on a per-frontage-foot basis. Water Pro Rata $31.65 per linear foot EXHIBITS Exhibit I Project location Exhibit II Water Main Pro Rata Agreement Exhibit III Ordinance Respectfully submitted: Prepared by: Jim Coulter Director of Water Utilities David H. Hunter, R.S. Watershed Protection Specialist THE STA"I'E ()iF TEXAS COUNTY OF DENTON' WATER MAIN PRO-RATA REIMBURSEMENT AGREEMENT BETWEEN THE CiTY OF DENTON, TEXAS AND PULTE HOMES WHEREAS, Pulte Homes ("Developer"), whose business address is 1431 Oreenwav Drive, Suite 700, Irving Texas 75036-2484 'wishes to develop and inrprove certain re~l prope~y named. The Vintage, Phase One.-A (as shown in Exhibit L a.ttact~ed hereto and inco¢orated herein by reference) located in the City of Denton, Texas or its extrater~htorial jurisdiction, and is required to provide such propc~y with adequate water service by designing, constructing and installing a w'ater main; and WHEREAS, the City of Dento:n ("City"), a municipal corporation, located at 215 East McKinney, Denton, Texas 76201, in accordance with its ordinances may reimburse Developer for the costs of' the water main installed by the Developer, based upon pro=rata charges paid to the City by persons connecting to the water main; NOW, THEREFORE, in consideration of their mutual prom:ises, Developer and City agree as follows: Developer has designed, installed and constructed, 20-inch diameter oftCsite water main and alt necessary appurte~'~ances thereto, extending a total distance of approximately 5,421 feet {?Facilities"), located as shown on Exhibit Il, attached hereto and incorporated herein by reference. This offZsite water main shaIl be subject to pro-rata reimbursement in accordance with this Agq:eement. Prior to beginning construction of Facilities, Developer shall obtain, at Developer's sole cost and expense, all recess.mT pem'~its, licenses, and easements. If easements are needed, the deeds thereff:~re obtained by Developer shall be reviewed and approved as to fbnx: ~md substance by the City prior to the beginning of construction. If Developer is unable to acquire needed easements, Developer shall provide the City with any requested documentation of ef[brts to. obtain such easements, i:ncludir~g evidence of negotiations and reasonable oilers made to the af'~cted prope~y owners. Any easeme~xts for the Facilities obtained by the Developer shall be assigned to City, if not taken in City's name, prior to acceptance o:f the Facilities; and Developer wan-ants clear title to such casements and will de.fbnd the City against any adverse claim made against such title. The cost fbr the design, construction, and installation of thc Facilities subject to pro-rata reimbursement is: EXHIBIT II $171,574.65 (Developer cost) or $31.65 per linear foot (5,421 linear feet of of~;si'/e Facilities) $185~.459 (City' participation cost) Within thirty (30) days of the accepting_ce of the Facilities by the City, Developer shall submit to the City's Assistar~t City Manager of Utilities the actual cnst o.f the Facilities. To determine the actm.tl cost of the Facilities, the City shall have the right to inspect a~ny a~td all records of Developer, his agents, employees, contractors., or subcontractors arid shall have the r:ight to require Developer to submit to al~y necessary infor~ation, documents, mvoices, receipts or other records to verify the actual .cost of the Facilities. The Assistant City Manager of Utilities shall review and verify the acttml cost of the Facilities and certify the allowable reimbttrsable cost and the date the Facilities were accepted~ which certificale shall be attached hereto and be incorporated herein by reference. After title to tt]e Faculties have vested in the City, the City shall collect a pro...rata charge fi'om any person connecting to, the off-site facilities in accordance with the provisions of the Code of Ordin.~[nces ot' the City. Within thirty (30)(lays of the receipt of pro-rata charges, the City shall transfer the applicable amom~t collected[ to Developer. The City shall transfer to Developer p:ro-rata charges collected tbr a period of time for twenty (20) years ii'on, the date Faciht:ies are accepted by City~ as specified hereto., but shall ~ot transfer or reimburse to the Developer an amount of :funds i~n excess of tlhe certified cost of the Facilities. The parties hereto recognize that the Facilities st~l!iect to this Agreement are :necessary to provide water service to the DevelopeFs property. The City has decided that it will participate :ilr~ the cost: of fi. mding a water main that would provide greater water capacity than the Facilities Developer is required to install. '/["he City and Developer will crater into. a separate Water Main Participation Agreeme~at to. provide for the sharing of cost of st~ch oversized main. The pro- rata charges to be collected and trm~sl:krre.d to Developer shall be based on the temns of this Agreen~ent, as thm~glh the Facilities su[~iect to this Agreement were installed. The pro=rata charges to be collected by the City and transt~rred to Developer h-~ accordance with the ordinances of the City and this Agreeme~lt are i~tended to reimburse the Developer lbr the Developer's cost of the Facilities by requiring persons connecting who benefit thereby, to participate i:t~ the cost of the Facilities~ This Agreement shall not be considered to i:mpose any obligation or liability upon the City to pay ;for the Facilities from its general revemms,~ bond tSmds or any other revenues it aaay receive, except for those pro-rata t:;~mds received from persons connecting to such Facilities. 10. 12. 14. 15. Should any court of competent .i[~risdiction determine that all or a part of the City's ordinance upon which the pro-rata charges to be paid to Developer under this Agreement are based, are found to be unlawful or i~valid~ the City may cease to charge or coBect the pro~rata charges for connection to the Facil/ties, and shall have no further obligations hereu:[lder. All notices, payments or com:munications to be given or made pursuant to this Agreement by the parties hereto~ shaIt be sent to Developer at the business address given above and to the Assistant City Manage:r of Utilities for the City at the address given above. The Developer shall indemni~' and bold the City harmless from any and all claims, damages, loss or liabitity of any kind whatsoever~ by reason of injuu to property or person occasioned by any act or omission, neglect or wrongdoing of Developer, its officers, agents, employees, invitees, contractors or other persons with regard to the perfom~ance of this Agreement; and Developer will, at its own cost and expense, defend and protect the City against any and al~ such claims and demands. This instrument ers. bodies the whole agreement of the parties hereto, and there are no promises, temas, conditions or obligations other than those contained hereim This Agreement shall supersede ali previous communications, representations or agreements, either verbal or written, between the parties hereto. Developer shall not assign this Agreement without the express written consent of the City, Any and all suits for any breach of this Agreement, or any other suit pe~aining to or arising out of' this Agreement, slhall be brought and maintained in the court of competent jurisdiction in Denton County, Texas. This Agreement shall be effkctive tbr a period of twenty (20) years from the date Facilities are accepted by the City~ or until Developer has been paid all allowable reimbursable prmrata charges for the Facilities, whichever occurs first; provided~ however, should Developer fail to complete substantial construction of the Facilities within one year fi:om the date of execution of this Agreement, this Agreement shall terminate. EXECUTED this the day of ,2002,, CITY OF DENTON, TEXAS BY: Michael A. Conduff, City Manager ATTESTED BY: Jennifer Walters, City Secretm3~ BY: APPROVED AS TO LEGAL FORM: Herbe~ L. Prouty, City Attorney BY: PULTE HOMES, A Corporation ATTEST: BY: BY:¸ APPROVED AS TO LEGAL FORM: BY: Documents ,Contracls\02\Waier I rod~:la A~rmt-The Vintage~doc 4 Vintage Location ~ap /IIj TA,',~E ~)E'v'B, ~;PblEl~ r - CiTY OF DENTON UT/L/ ~:::~::~ ~ Miles 0 0.25 0.5 1 EXHIBIT ! V~ntage Off-Site wa~ CORBIN 5,421 OF 20" WATERLINE/' / i I ? ROSELAWN VINTAGE DEVELOPMENT CiTY OF W,A TE DENTON UT/L/ EXHIBIT II ORDINANCE NO~ AN ORDINANCE OF THE CITY COUNCIL OF DENTON, TEXAS AUTHORIZIiNG THE CITY MANAGER TO EXECUTE A WATER MAIN PRO-RATA REIMBURSEMENT AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND PULTE HOMES FOR REIMBURSEMENT OF THE COSTS OF BUILDING A WATER MAIN, THROUGH PRO- RATA CHARGES PAID TO THE CITY; AUTHORIZNG THE TRANSFER OF FUNDS PURSUANT TO THE AGREEMENT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas requires that the development owned by iPutte Homes ("Developer") commonly reikrred to as that real property described as The Vintage, Phase OneA (as more particrdarly depicted in Exhibit I, attached hereto and incorporated herein by reference) located in the City of Dento!:~, Texas or its extraterritorial jurisdiction; and said Developer is required to provide such real property with adequate water service by designing, constructing, and installing a water main; and WHEREAS, the City of Denton, Texas may lawfully reimburse the Developer t'br the costs of the water main installation by the Developer based upon pro-rata charges paid to the City by persons connecting to the water m.ah~ pursuant to Code of Ordinances of the City of Denton, Texas §34d 18(b)(3); NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:: SECTION 1. Tha the City iManager is authorized to execute a Waer Main Pro=Raa Reimbursement Agreement Between 'the City of Denton, Texas and Pulte Homes (the "Ag:reement") to provide for the pro-rata reimbursement for the design, construction, and installation of 5,421 linear :tket of twenty-inch (20")off-site water main, substantially in the form of the attached Agreement, which is incorporated herewith by reference and made a part of this Ordinance for all proposes; subject however, to Developer, Pulte Homes entering into a Development Contract with the City of Denton, Texas in accordance with Chapter 34 of the Code of Ordinances of the City of Denton, Texas. SECTION 2. Th. at the City iManager is hereby authorized to make such expenditures and transfers of fhnds under such conditions as are set IN-th in the attached Agreement. SECTION 3. and approval. That this ordinance shall become effective immediately upon its passage PASSED A~ AP[PROVED this the .......................... day of 2002. EULINE BROCK, MAYOR EXHIBIT ,ATTEST: JENNIFER WALTERS, CITY SECRETARY ¸By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: S:'~()ur Documenls\Ordi~anccs\02'xWa~er Main Prorata Reimb Ord ,- P[flte Ik>mes~Vi*~tage.doc Agenda 02-021 06/18/02 #23 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: June 18, 2002 Water Utilities Howard Martin, 349-8437 SUBJECT AN ORDINANCE OF THE CITY COUNCIL OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A SEWER MA1N PRORATA REIMBURSEMENT AGREEMENT BETWEEN THE CITY OF DENTON AND PULTE HOMES FOR REIMBURSEMENT OF THE COSTS OF BUILDING A SEWER MAIN, THROUGH PRO- RATA CHARGES PAID TO THE CITY; AUTHORIZING THE TRANSFER OF FUNDS PURSUANT TO THE AGREEMENT; AND PROVIDING AN EFFECTIVE DATE. BACKGROUND The developer, Pulte Homes, is developing The Vintage Phase I Subdivision, a site on Vintage Boulevard on Bonnie Brae. (Exhibit I). Pulte Homes has installed a 24-inch and 18-inch sewer main as part of a city oversize cost-participation agreement for this project. The offsite sewer main shall be subject to pro-rata reimbursement in accordance with the agreements (Exhibits II) and Denton Development Code 35.21.10.1. The cost of the design, construction and installation of the sewer facilities subject to pro rata reimbursement is one hundred and ninety seven thousand six hundred and forty nine dollars and fifty cents ($197,649.50) or forty eight dollars and seven cent ($48.07) for the four thousand one hundred and twelve (4,112) linear feet of off- site facilities. The City will transfer to the developer pro-rata charges collected for a period of 20 years from the date facilities are accepted by the City. However, the City will not transfer or reimburse the developer funds in excess of the certified cost of the facilities. RECOMMENDATION Staff recommends approval of the agreement PRIOR ACTION/REVIEW (Council, Boards, Commissions) The oversize cost participation agreement was previously approved by the Public Utilities Board and Council. FISCAL INFORMATION Any customer connecting to the water or sewer line will pay pro rata charges based on a per- frontage- foot basis. Sewer Pro Rata $48.07 per linear foot EXHIBITS Exhibit I Project location Exhibit II Sewer Main Pro Rata Agreement Exhibit III Ordinance Respectfully submitted: Prepared by: Jim Coulter Director of Water Utilities David H. Hunter, R.S. Watershed Protection Specialist THE ST.ATE OF TEXAS COUNTY OF DENTON SEWER MAIN PRO-R2TA REIMBURSEMEN'I' AGREEMENT BETWEEN ~I?HE C1TY OF DENTON, TEXAS AW DULTE HOMES \,VHEREAS, Pulte Homes, (~'Developer'), whose business address is I431 Greenway Dfive.~ Suite 700, Irving Texas 75036-2484 wishes to develop and improve ce~ain real propenb, named The Vintage, Phase One..A (as shown in Exhibit I~ attached hereto and inco¢orated herein. 'by ret~erence) located in the City of Denton~ Texas or its extraterritorial jurisdiction, ~d is required to provide such propezg, with adequate sewer serx~ice by designing, construct:lng and instaIling a sewer main; and WHEREAS~. the City of Denton ("City'), a mu.nicipal corporation, located at 215 East McKirtney, Denton, Texas "76201, :in accordance w'ith its ordinances may reimburse Developer for the costs of the sewer main installed by the Developer based upon pro-rata charges paid to the City by persons co~tnecting to the sewer rnain; NOW, THEREFORE, in consideration of their mutual promises, Developer and City agree as follows: Developer has designed, installed ~.nd constructed: l S-inch and 24-inch diameter offZsite sewer mains and all necessar¢' appurtenances thereto~ extending a total distal~ce of' approximately 4~1. 12 :lk:et (Tacilities'), located as shown on Exhibit II, attached hereto and inco:rporated herein by reference. T'his offLsite sewer main shall be subj oct to. pro-rata reimbursement in accordance with this Agreement. Prior to begil~ting construction of Facilities, Developer shall obtain at Developer's sole cost and expense, all necessai~>, peri,nits, licenses, ~d easements. If easements are needed, the deeds therefore obtained by Developer shall be review a~d approved as to :form. a.rtd substance by City prior to the begi:m~ing of constructioia. If Developer is u~abIe to acquire needed easements~ Developer shall provide City with any requested documerttation of efforts to obtain such easements, including evidence of r'legotiations and reasonable ofifers made to the atScted prope~y owners. )~ny easements for the Facilities obtained by the Developer shall be assigned to City? if :i~ot taken in City's name, prior to acceptance of the Facilities; and Developer warrants clear title to such easements ~d will defend City against any adverse claim made against such title. The estimated cost of the design, co.r~struction~ ~md installation of the Facilities subject to pro-rata reimbursement is: $197~649,50 (Developer cost) or $48.07 per linear foot (4~112 linear l~eet of oft~site Facilities) EXHIBIT $46~309.50 (City participatior~ cost) Within thirty (30) days of the acceptance of the Facilities by the City, Developer Shall submit to the City's Assistanl' City Manager of Utilities the actual cost of the Facilities. To determine the act. tm! cost of the Facilities, the City shall have the r~ 7' lght to. inspect an5, and ali records of Developer, his agents, employees, contractors, or subcontractors arid shall have the right to require Developer to submit to any l~ecessary informatior~, documents, invoices, receipts or other records to verify the actual cost of the Facilities~ The .Assistant City Manager of Utilities shall :review and verify 'the actual cost of the Facilities and ce!~ify the allowable reimbursable cost and the date the Facilities w'~ . ere accepted, which certificate shall be attached hereto and be il~co¢orated herein by reference. After title to the Facilities have vested in the City, the City shall collect a pro.-,rata charge l¥om any person counectir~g to the o££~site Facilities in accordance with tlne provisions of the Code of Ordi;nances of the City, Withir~ thirty (30)days of the receipt of pro-rata charges, the City shall transfer the applicable amount collected to Developer. The City shall transfer to Developer pro-rata charges collected for a period of time :fbr twenty (20) years from the date Facilities are accepted by City, .as specified herein, but shall r~ot transt!kr or reimburse to the Developer an amount of funds in excess of'the ce~ified cost of the Facilities. The parties hereto recognize that 'the Facilities subject to this Agreemem are necessaD, to provide sewer service to the Developer's property. The City has decided 'that it will participate in the cost of fundirtg a sewer main that would provide greater sewer capacity titan the Facilities Developer is required to install. The City mad Developer will crater into a separate Sewer Main Participation Agreement to provide for the sharing of cost of such oversized main. The pro~ rata charges to be collected and transfe~ed to Developer shall be based on the terms of this Agreement, as through the Facilities subject to the Agreement were i:nstalted. The pro-rata charges to 'be collected by the City and transferred 'to Developer in accordance with the ordinances of the City and this Agreement are intended to reimbm:se the Developer for the De~ eloper s cost of the Facilities by requiring persons connecti~g who benefit thereby, to pa~icipate in the cost of the Facilities. This Agreement shall no.t be considered to impose any obligation or liability upon the City to pay for the Facilities ;from its general revenues, bond funds or any other revenues it may receive, except for those pro-rata funds received from persons core, coting to such Facilities. Should any co, urt of competent jt~risdictiol~ detemaine that all or part of the City's ordinance on which the pro-rata charges to 'be paid to Developer ~mder this Agreement are based, are for. md to be unlawlSal or invalid, the City may ,cease to, 2 charge or collect the pro-rata charges fbr connection to the Facilities, and will. have no fttrther obligations herem'~der. Ail notices, payments or commm~ications to be given or :made pursuant to this Agreeme~t by the parties hereto, shall be sent to Developer at the business address given above and to the Assistant City Manager of Utilities for the City at the address given above. 11~ The Developer shall indemnify and hold the City Bare, less from any and ail claims, damages~ loss or Ii.ability of m~y kind whatsoever, by reason of injury to prope~y or person occasioned by any act or omission, neglect or wrongdoing of Developer, its officers, agents, employees, invitees, contactors or other persons with regard to the perfbrmance of this Agreement; and Developer will at its own cost and expens< de~fknd and protect the City agail~st any and all such claims and demands. 12. This instrument embodies 'the whole agreement of the parties hereto, and there are no promises, terms, conditions or' obligations other thm~ those contained herein. This Agreeme~t shall supersede all previous communications, representations or agreements, either verbal or ',vritte~, between the parties hereto. 13. Developer shall not assign this Agreement without the express written co. nsent of the City. 14. Any and all suits for any breach of th. is Agreement, or any other suit pe~aining to or arising out of this AgreemenL shall be brought and maintained in the court of competent jurisdiction in Del~ton County, Texas. 15. This Agreement shall be effective for a period of twenty (20) years from the date Facilities are accepted by the City, or until Developer has been paid all allowable reimbursable pro-rata charges for 'the Facilities~ whichever occurs first; provided~ however, should Developer 12il to complete substan.tial construction of the Facilities within one year from '{he date of execution of this Agreement, this Agreement shall terminate. ~ ECUTED this the day of ,2002, CfTY OF DENTON, TEXAS BY: iMichae! A, Conduff, City Manager ATTESTED Jenni£er Walters, City Secretary BY; APPROVED AS TO LEGAL FORM: Herbert L. Prouty, City Attorney BY: PULTE HOMES A Co¢oration BY: ATTEST: BY: ,APPROVED AS TO LEGAL FORM: BY: S :',Our Docume~tsx~Contracts\02~Sewer Main Pro-Rata AgmW !'site I lomcs,doc 4 Vintage Location v ~',~ T & Q E CiTY OF WA TE~ tR DENTON , Miles 0.25 0.5 1 EXHIB!T I VINTAGE Vintage Off-Site $~W~ CORB!N HICKORY CREEK INTERCEPTOR ; ROSELAWN 2,515' OF 24" SEWERLINE 1,597' OF 18" SEWERLINE SONOMA VINTAGE DEVELOPMENT m 4,t12~ OF TOTAL SEWERLiNE Cl OF DENTON EXHIBIT 1! ORDINANCE AN ORIOIN.ANCE OF THE CITY COUNCIL OF DENTON, TEXAS AUTHORIZING THE CITY iMANAGER TO EXECUTE A SEWER MAN PRO-RATA REIMBURSEMENT AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AB PULTE HOMES FOR REIMBURSEMENT OF THE COSTS OF BUILD~G A SEWER M~43'N, THROUGH PRO- ~%TA CHARGES PAID TO THE CITY; AUTHORIZING THE TP~6NSFER OF FUNDS PL~.SUANT TO THE AGREEME'NT; AND 'PROVIDING AN EFFECTIVE DAIE. WHEREAS, the City of Denton, Texas requires that the development owned by Putte Homes ("Dev'eloper") commonly refkn'ed to as that real. prop. er~ described as The Vintag< Phase enema (as more particularly depicted in Exhibit l, attached hereto ad inco¢orated herein by reibrence) located in the City of Dentom Texas or its extratet~ito~aI jurisdiction; and said Developer is required to provide such real property with adequate sewer service by designing, constructing, and installing a sewer main; and WI'tEREAS, the City of Denton, Texas may lawfully reimburse the Developer :for the costs of the sewer main installation by 'the I}eveloper based upon pro-rata charges paid 'to 'the City by persons co~ecting to the sewer main pursuant to Code of' Ordinances of the City of Denton, Texas 9 a 4~ 118(b)(3); NOW, THERE THECOUNCIL' OF THE CiTY OF DENTON HEREBY O~AI-NS: SECTION 1. That the City Manager is authorized to execute a Sewer Main Pro-Rata Reimbursement Agreement Between the City of Denton, Texas zmd Pulte Homes (the greement ) to provide £or the pro-rata reimbursement for the design, construction, and installation of 4,1t2 linea~ tbet of 18qnch and 24-inch diameter of£~site sewer mains, substaatiatly in the form of the attached Agreement, ¥~ ' ~ hmh is inco¢orated herexvith by reference and made a part of this Ordinance for ali purposes; subject however, to Developer~ Pulte Homes enterin, g into a Development Contract with the City of Denton, Texas in accordance with Chapter 34 of the Code of Ordinances of the City of Denton, Texas. S. CNON 2. That the City Manager is hereby authorized to make such expenditures and tran. sfers of fhnds under such conditions as are set fb~h. m the attached Agreement SECTION 3. That this ordinance shall become effective immediately upon its passage and approval. PASSED AiND APPROVED this the day of ~ 2002. EULINE BROCK, MAYOR EXHIBIT ATTEST: JE~IFER WALTERS, CiTY SECRETARY By: APPROVED AS TO LEGAL FOiRM: HERBERT L. PROUTY, CITY ATTORNEY By:: S:\Om' Documents'sOrdinances\02\Scwer Main Pt'o=Rata Reimb Ord = Pult¢ Iiomes~Vintage.doc Agenda 02-021 06/18/02 #24 AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET June 18, 2002 Engineering DaveHill, 349-8314 ~ SUBJECT Consider adoption of an ordinance authorizing the City Manager or his designee to eMer iMo a Real Estate Contract between the City of Denton and Ray Hallford relating to the purchase of a 0.565 acre tract of land in fee simple for street purposes, and two Slope Easements containing approximately 0.203 acre and 0.134 acre, respectively, all of which are located in the D. Lambert Survey, Abstract Number 784, in the City of Denton, Denton County, Texas, And Being Part of Lot 1, Block A, Lombard Addition, An Addition To The City of DeMon, Texas, as part of the Colorado/Mayhill/Edwards Paving and Drainage ImprovemeMs Project; authorizing the expenditure of funds therefore; and providing an effective date. BACKGROUND Over the course of the last several months we have been working oM the final details of the Mayhill/Colorado Drainage and Road ImprovemeM project. These tracts are the final right-of-way acquisitions for the project. The project is divided iMo two distinct phases. Phase I focuses on the paving and drainage improvements necessary to connect Mayhill Road to Edwards Road through Andrew Corporation property, in concert with the closure of the east/west section of Edwards Road, south of the Landfill. The City came to an AgreemeM with Andrew Corporation for the acquisition of the right-of-way parcels needed to start Phase I last summer. That transaction has closed and Phase I of the project is in the final stages of construction. Phase II of the project eMails connecting Colorado Boulevard to Mayhill Road along with completing the tie-in of Edwards Road. These tracts are needed in order to complete Phase II. The owner granted a Right of Entry in February 2002, and Phase II of the project is curreMly under construction. City Council authorized a formal offer to purchase the property and the authority to proceed with condemnation proceedings for these acquisitions in November of 2001. The owner declined the offer and the case was set for condemnation hearing in May 2002. Staff was successful in negotiating a settlement for this acquisition for $185,000.®. OPTIONS 1. Approve the Real Estate Agreement 2. Denial, or 3. Table for future consideration RECOMMENDATION Staff recommends approval of the Real Estate Agreement 1 ESTIMATED PROJECT SCHEDULE Currently Under Construction PRIOR ACTION/REVIEW November 6, 2001 - Authorization for formal offer and condemnation. October 17, 2000 - Briefing to City Council FISCAL INFORMATION Purchase Price $185,000.® ATTACHMENTS Location Map Draft Ordinance Real Estate Agreement Exhibits A - F (Surveys & Legal Descriptions) Attachment 1 - (Street Right of Way Deed) Attachment 2 - (Slope Easement) Prepared by: Pamela England Real Estate Specialist Respectfully submitted: For Charles Fiedler, Director Engineering Department BLOOM CANARY LEAFY BLUE JAY Denton Regional Medical Center / Location Map Map ~ot [o S~;le ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO ENTER iNTO A REAL ESTATE CONTRACT BETWEEN THE CITY OF DENTON AND RAY HALLFORD RELATING TO THE PURCHASE OF A 0.565 ACRE TRACT OF LAND IN FEE SIMPLE FOR STREET PURPOSES, AND TWO SLOPE EASEMENTS CONTAINING APPROXIMATELY 0.203 ACRE AND 0.134 ACRE, RESPECTIVELY, ALL OF WHICH ARE LOCATED iN THE D. LAMBERT SURVEY, ABSTRACT NUMBER 784, iN THE CITY OF DENTON, DENTON COUNTY, TEXAS, AND BEING PART OF LOT 1, BLOCK A, LOMBARD ADDITION, AN ADDITION TO THE CITY OF DENTON, TEXAS, AS PART OF THE COLORADO/MAYHiLL/EDWARDS PAVING AND DRAINAGE IMPROVEMENTS PROJECT; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON, TEXAS HERBY ORDAINS: SECTION 1. The City Manager is hereby authorized to execute a Real Estate Contract between Ray Hallford in substantially the form of the Real Estate Contract which is attached hereto and made a part of this ordinance for all purposes, for the purchase of a 0.565 acre tract of land in fee simple for street purposes, and two slope easements containing approximately 0.203 acre and 0.134 acre respectively. SECTION 2. The City Manager is authorized to make the expenditures as set forth in the attached Real Estate Contract. SECTION 3. passage and approval. This ordinance shall become effective immediately upon its PASSED AND APPROVED this the __ day of ,2002. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: REAL ESTATE CONTRACT THIS CONTRACT OF SALE is made by Ray Hallford (hereinafter referred to as "Seller") and CITY OF DENTON, TEXAS, a home rule municipality, of Denton, Denton County, Texas, (hereinafter referred to as "Purchaser"), upon the terms and conditions set forth herein. PURCHASE AND SALE Subject to the terms and conditions contained in this Contract, Seller shall sell and convey unto the Purchaser and Purchaser shall purchase the property particularly described in Exhibit "A" and illustrated in Exhibit "D" attached hereto and made a part hereof by reference (the "Right-of-Way Property"). The Right-of-Way Property will be conveyed by "Street Right of Way Deed" a copy of which is attached hereto and made a part hereof as Attachment "1". Seller hereby sells and agrees to convey the Right-of-Way Property with all rights and appurtenances pertaining to the Right-of-Way Property including any right, title and interest of Seller in and to adjacent streets, alleys or rights-of-way. Seller shall sell and grant unto the Purchaser and Purchaser shall purchase the "Slope Easements" containing those tracts particularly described in Exhibit "B" and Exhibit "C" illustrated in Exhibit "E" and Exhibit "F" as Slope 8, Slope 9 (the "Easements"). The Easements are attached hereto and made a part hereof as "Attachment 2". The Right-of-Way Property and Easements are hereinafter called the "Property". II SETTLEMENT AGREEMENT Purchaser has heretofore instituted eminent domain proceedings to acquire the Property in that certain cause styled City of Denton, Texas v. Ray Hallford, Cause No. ED-2002-00036 in the Probate Court of Denton County, Texas (the "Condemnation Proceedings"). This Contract is a settlement of any and all claims the Purchaser and Seller may have against each other arising out of the Condemnation Proceedings including without limitation any and all claims for damages or compensation the Seller may have against the Purchaser as a result of the Purchaser's acquisition of the Property including damages to the remainder, if any, and any damages for trespass by the Purchaser prior to the Purchaser's institution of the Condemnation Proceedings. Therefore, as of the Closing, the Seller and Purchaser release and discharge each other from and against any and all claims, damages, liability and actions arising out of or resulting from the Condemnation Proceedings, the Purchaser's acquisition of the Property and any trespass by the Purchaser, its employees or agents. At Closing the City and Purchaser will execute all necessary pleadings to cause the dismissal of the Condemnation Proceedings. Purchaser currently has lawful possession of the Property by virtue of a Right-of-Entry granted by Seller. Purchaser is entitled to continued possession of the Property through Closing, or as otherwise provided herein. III. PURCHASE PRICE 1. Amount of Purchase Price. The total purchase price for the Property shall be the sum of One Hundred Eighty Five Thousand Dollars and No Cents ($185,000.®) (the "Purchase Price"). 2. Payment of Purchase Price. The full amount of the Purchase Price shall be payable in cash at the closing. IV. PURCHASER'S OBLIGATIONS The obligations of Purchaser hereunder to consummate the transactions contemplated hereby are subject to Seller's compliance with the covenants, agreements, and conditions required by this Contract to be Performed, observed, and complied with by Seller prior to or as of the closing.. REPRESENTATIONS AND WARRANTIES OF SELLER Seller hereby represents and warrants to Purchaser, which representations and warranties shall be deemed made by Seller to Pumhaser also as of the closing date, that the Property is convey, granted and sold in "AS IS" condition. However nothing herein shall be construed to release, discharge or hold harmless, any of Seller's predecessors in title. VI CLOSING The closing shall be held at the office of Texas Title Company 2215 South Loop 288, Suite 320, Denton, Texas 76205 on or before June 28, 2002, or at such title company, time, date, and place as Seller and Purchaser may mutually agree upon (which date is herein referred to as the "Closing"). PAGE VII. CLOSING REQUIREMENTS 1. Seller's Requirements. At Closing Seller shall A. convey good and indefeasible fee simple title to the Right-of-Way Property by delivering the Street Right-of-Way Deed to Purchaser, free and clear of any and all liens, encumbrances, conditions, assessments, and restrictions; and B. grant the Easements to Purchaser, free and clear of all liens and encumbrances. 2. Purchaser's Requirements. At Closing Purchaser shall pay Purchase Price to Seller. 3. Closing Costs. Seller shall pay all taxes assessed by any tax collection authority through the date of Closing. All other costs and expenses of closing in consummating the sale and purchase of the Property not specifically allocated herein shall be paid by the party incurring same. VIII. REAL ESTATE COMMISSION Seller and Purchaser represent and warrant to each other that neither has retained a broker for this transaction and that there are no broker or real estate fees due as a result of the consummation of this contract. IX. BREACH BY SELLER If Seller fails to fully and timely perform any of its obligations under this Contract or fails to consummate the sale of the Property for any reason, except Purchaser's default, Purchaser may: (1) enforce specific performance of this Contract; or (2) terminate this Contract and continue to institute the Condemnation Proceedings. In either case, Purchaser shall be entitled to possession of the Property under the previously granted Right-of-Entry until a court grants Purchaser possession in the Condemnation Proceedings or in a suit for specific Performance. BREACH BY PURCHASER In the event Purchaser fails to consummate the purchase of the Property, if Seller is not in default under this Contract, Seller may (1) enforce specific performance of this Contract; or (2) PAGE 3 terminate this Contract. In either case, Purchaser shall be entitled to possession of the Property under the previously granted Right-of-Entry until a court grants Purchaser possession in the Condemnation Proceedings or in a suit for specific performance. XI MISCELLANEOUS 1. Mayhill Road. It is the Purchaser's intention to close the section of Old Mayhill Road from the existing Mayhill Road going east to the Rail to Trails corridor, as well as the section of Edwards road going north from the location of the Snider property to the Municipal Landfill. These road closures will be completed in the interest of public safety and will be taken to Denton City Council for approval once the Mayhill/Colorado Paving and Drainage Improvement project has been completed. Upon City Council approval the roads will be gated and closed to public access. Adjacent property owners, including Seller, will be given keys to the gates for private access to their property. Unless required by the public health, safety and welfare, the Purchaser will not abandon these roads and will retain the public's interest and right of way until such time that reactivation occurs. The Purchaser agrees to maintain and keep in place the gates and any barricades referred to above so long as the roads remain closed to public access. 2. Survival of Covenants. Any of the representations, warranties, covenants, and a~eements of the parties, as well as any rights and benefits of the parties, pertaining to a period of time following the closing of the transactions contemplated hereby shall survive the closing and shall not be merged therein. 3. Notice. Any notice required 'or permitted to be delivered hereunder shall be deemed received when sent by United States mail, postage prepaid, certified mail, return receipt requested, addressed to Seller or Purchaser, as the case may be, at the address set forth beneath the signature of the party. A Seller's agent for purposes of notice shall be: Mike Griffin, Griffin, Whitten, Jones & Reib, 218 North Elm Street, Denton, Texas 76201. B Purchaser's agent for the purposes of notice shall be: Edwin Snyder, Deputy City Attorney, City of Denton, 215 East McKinney Street, Denton, Texas, 76201. laws of Denton Texas Law to Apply. This Contract shall be construed under and in accordance with the the State of Texas, and all obligations of the parties created hereunder are performable in County, Texas. 5. Parties Bound. This Contract shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns where permitted by this Contract. 6. Legal Construction. In case any one or more of the provisions contained in this PAGE 4 Contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, said invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Contract shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein. 7. Prior Agreements Superseded. This Contract constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties respecting the within subject matter. 8 Time of Essence. Time is of the essence in this Contract. 9. Gender. Words of any gender used in this Cpntract shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. 10. Memorandum of Contract. Upon request of either party, both parties shall promptly execute a memorandum of this Contract suitable for filing of record. 11. Compliance. In accordance with the requirements of the Texas Real Estate License Act, Purchaser is hereby advised that it should be furnished with or obtain a policy of title insurance or Purchaser should have the abstract covering the Property examined by an attorney of Purchaser's own selection. 12. Effective Date. The term "Effective Date" means the latter of the dates on which this Contract is signed by either Seller or Purchaser, as indicated by their signature below. If the last party to execute this Contract fails to complete the date of execution below that party's signature, the date the Title Company acknowledges receipt of a copy of this fully executed Contract is the Effective Date. IN WITNESS WHEREOF, Seller and Purchaser have executed this contract as follows SELLER: Date Ray Hallford APPROVED AS TO FORM: Mike Griffin Attorney for Seller PAGE 5 PURCHASER: BY: Date: Michael A. Conduff City Manager 215 E. McKinney Denton, Texas 76201 APPROVED AS TO FORM: Edwin M. Snyder, Deputy City Attorney Attorney for Purchaser TITLE COMPANY ACCEPTANCE AND ACKNOWLEDGEMENT The Title Company acknowledges receipt of the fully executed Contract on . , 2001. TITLE COMPANY: Name: Texas Title Company Address: 2215 South Loop 288, Suite 320 Denton, Texas 76205 Telephone: 940-382-8251 By: Printed Name: Title: day of PAGE 6 o~° ~ MAYHILL ROAD I O , HAMMETT & NASH, lNG, ENGINEERS & SURVEYORS 223 W, HICKORY, DENTON, TEXAS 76201 0-,387-0506 10~ g40-565-0435 hem I no shO~3;r~,3;I.net :~' ~: ': EXHIBIT B MA YHILL ROAD z LINE...:.. CA._.~IN~T I. PAGE I ITl --t HAMMETT & NASH, INC. ENGINEERS & SURVEYORS 223 W, HICKORY, DENTON, TEXAS 76201 940-387-O506 fo,~ g40-565-0436 horn $ nO shOo;tm~,,I.net ~4 Ow~L ~PA IeKD. E HAMMETT & NASH, INC. ENGINEERS & SURVEYORS 223 w, HICKORY, DENTON, TEXAS 76201 940-.387-0506 fO~ 940-565-0436 horn ! nCShOo;~mo;;.~el I 31717 i 1/28~000 TRACT 3B HALLFORD ALL TilAT CERTAIN TRACT OR PARCEL OF LAND LYING AND BEING SITUATEO IN TIlE D. LAMBERT SURVEY, ABSTRACT NUMBER "/54, CITY OF DENTON, DENTON COUNTY. TEXAS. BEING PART OF LOT I, BLOCK A LOMBARD ADDITION, AN ADDITION TO THE CITY OF DENTON. AS SIlOWN BY Tile PLAT TIIEREOF RECORDED IN CABINET I. PAGE 152. PLAT RECORDS. DENTON COUNTY, TEXAS, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT A VI INCH IRON PiN FOUND AT TIlE SOUTtlWEST CORN ER OF SAID LOT I ON TIlE EAST RIGHT-OF-WAY LINE OF MAYHILL ROAD (A 120 FOOT RIGHT-OF-WAY). SAID PIN ALSO BEING THE NORTHWEST CORNER OF A TRACT DESCRIBED IN A DEED TO ROY IIALLI"ORD. RECORDED UNDER COUNTY CLERK'S FILE NUMBER 93-R007346'L REAL PROPERTY RECORDS. DENTON COUNTY, TEXAS: TilENCE NORTH 00 DEGREES $$ MINUTES 40 SECONDS EAST. WITH THE WEST LINE OF SAID LOT I AND THE EAST LINE OF SAID RIGHT-OF-WAY, A DISTANCE OF 427.8~ FEET TO A SETI."2 INCII IRON PiN WITH A YELLOW PLASTIC CAP STAMPED I'I.C'N 1849, ATTHE POINT-OF-BEGINNING OF TIlE I IEREIN DESCRIBED TRACT. SAID POINT OF BEGINNING BEING SOUTI146 DEGREES 03 MINUTES SECONDS WEST 993.12 FEET FROM A RAILROD SPIKE FOUND IN TI IE MIDDLE O1" M.-\YIIILL ROAD AT THE SOUTHEAST CORNER OF THE D. HOUGH SUREY ABSTRACT 696. WI.IICI I IS TI IE NORTHEAST CORNER OF THE D LAM UERT SURVEY ABSTRACT 7:M. ON TIlE WEST LINI" OF TI !~' GIDEON WALKER SURVEY ABSTRACT 1330; TtIENCE NORTtl O0 DEGREES S5 MINUTES 40 SECONDS EAST WITII Tile WEST LINE O1" SAID LOT I AND TI'IE EAST LINE OF SAID RIGtlT-OF-WAY. A DISTANCE OF 80.00 FEET. 'i'O A SE'I'I:2 INCll IRON PIN WITH A YELLOW PLASTIC CAP STAMPED II&N 1849: THENCE SOUTII 89 DEGREES 00 MINUTES S7 SECONDS EAST. A DISTANCE OF 197.81 FEET. '1'('~ A SET I.r2 INCH IRON PIN WlTtl A YELLOW PLASTIC CAP STAMI'IZD II&N 1549 AT TIlE BEGINNING OF A CURVE TO THE LEFT; TIIENCE AROUND SAID CURVE TO THE LEFT tlAVING A CENTRAL ANGLE OF I I DEGREES 25 NIlNUTES .$4 SECONDS. A RADIUS OF 460.00 FEET. AN ARC LENGTII OF' 91.'/~ FEET. ANL) A ClIORD WHICH BEARS NORTtl 55 DEGREES 16 MINUTES 06 SECONDS EAS'r. A DISTANCE OF 91.63 FEET. TO A SET I/2 INCH IRON PIN WITI-I A YELLOW PLASTIC CAP STAMPED II,~:N 1849 ON TIlE WFST OF-WAY LINE OF TI IE OLD M.K. & T. RAILROAD RIGtlT-OF-WAY. AT THE BEGINNING OF A CURVE TO THE RIGHT; TI IENCE WITH SAID RIGHT-OF-WAY. AROUND SAID' CURVE TO Tile RIGI IT. I IAVING A CENT:,L.\L ANGLE OF 02 DEGREES 31 NIINU'i'ES ,16 SECONDS. A RADIUS OF 155,]).24 FEET. AN ARC LENGTti OF 82.08 FEET. AND A el-lORD WHICH BEARS SOUTlt 2,1 DEGREES 2'/MINUTES 33 SECONDS EAST. A DISTANCE OF 82.08 FEET. TO A SET I/2. INCH IRON PIN WITII A YELLOW PLASTIC CAI' STAMPED tK~:N 1549 AT THE BEGINNING OF A CURVE TO TIlE RIGtl'r: TIIENCE AROUND SAID CURVE TO TIlE RIGIIT. IIAVING A Cl!NTRAI. ANGLE OF 13 I)E(iREES 32 MINUTES 27 SECONDS. A RADIUS OF 540.00 FEET. AN ARC LENG'rII OF 127.02 FI£E'F. AND A CHORD WHICII BEARS SOUTH 8,1 DEGREES 12 MINLITES 49 SECONDS v. ES'i'. A DISTANCE OF 127.32 Fi-E F. TO A SET i,'2, INCll IRON PIN WITII A YELLOW PLASTIC CAP STAMPI.'D II,~:N EXHIBtT E 31717 I 1~$/2000 ~1.O1'1'~ I.:A.~I'~I~II".NT q I IAI .I.FOIII) ALL TI IAT CEETAIN TEACT OK PAECEL OF LAND LYING AND BEING SFrUA'I'ED IN TI IE D. LAMBE~T SURVEY, ABSTRACT NUMBER T84, CITY OF DENTON, DENTON COUNTY, TEXAS, PA~T OF LOT l, BL~K A, LObIBAED ADDITION, AN ADDITION TO TIlE CiTY OF DENTON, AS SXO~ BY THE PLAT THEREOF EECOEDED IN CABINET l, PAGE IS~, PLAT RECOED$, DENTON COUNt, TEXAS, AND BEING MOEE PAETICULAELY DESCRIBED AS FOLLOWS: COM~IENCING AT A ~4 INCH I~ON PiN FOUND AT THE SO~IIWE$T CORNER OF $AID LOT I ON TI EAST EIGHT-OF-WAY LINE OF MAYHILL EOAD (A 120 FOOT RIOtI'r-oF-WAY). SAID PIN Al. SO BEING THE NO~TtlWEST COENEE OF A TEAC'F DESCEIDED IN A DEED TO EOY HALLFORD. EECORDED UNDEE COUNI~ CLERK'S FILE NUblBEK 9~.E007~462. REAL I~ROPER'FY I(I~CORI)S. DENTON COUNTY, TEXAS; THENCE NORTH 00 DEGREES 55 MINUTES 40 $ECONDS EAST, WFI'tl Tile WEST LINE OF SAID LOT I AND TIlE EAST LINE OF SAID EIGHT-OF-WAY, A DISTANCE OF 507.89 FEET TO A SETi,'] 15Cil IRO~ PIN WITtl A YELLOW PLA$TIC CAP STAblPED FI&N IS49, AT TIlE i,OI~I'.OF-BEGINNI~g OF 'ri II~EIN DESCEIBED T~CT, SAID POINT OF BEGINNING BEING SOUTH 4~ DEGREES 49 ~IINUTES SECONDS WEST 997.~9 FEET F~Obl A EAILEOD SPIKE FOUND IN TI IE MIDDLE OF blAYI IILL EOAD AT TI IE SOUTHEAST CORNER OF THE D. HOUGll SU~EY ABSTRACT ~96, WI IICI I I$ TI IE NORTI4EAST CORNER OF THE D LANIBERT SURVEY ABSTRACT 7~4. ON TI IE WEST LINE OF TI GIDEON WALKER SURVEY ABST~CT THENCE NORTH 00 DEGREES 55 NIINUTES 40 SECONDS EAST WITII Tile WEST LINE OF SAID LOT I. A DISTANCE OF 5.89 FEET. TO A SETI~ INCII IRON PIN WITII A YELLOW PLASTIC CAP S'I'ASII'ED H,~N I $49; TtlENCE SOUTtl 89 DEGREES 00 MINUTES 57 SECONDS EAST. A DISTANCE OF 197.75 FEET. TO A SET I,~ INCH IRON PIN WITH A YELLOW PLASTIC CAP STASIPED H&N 1S49 AT 'rile BEGINNING OF A CURVE TO THE LEFT; THENCE WITi{ SAID Rig} IT.OF,WAY, AROUND SAID CURVE TO THE LEFT, I JAVING A CENTRAL ANGLE OF I3 DEGREES 3~ NIINUTES 27 SECONDS. A RADIUS OF 540,00 FEET, A~ ARC LENGTIJ OF 12762 FEET. ANDACHORDWJiICJlBEARSNORTIIg4DEGREES I2N1J~UTES49SECONDSEASF.-'N DISTANCE OF 127~32 FEET. TO A SET I,~ INCH IRO~ l)J~ WITJ~ A YELLOW PLASTIC CAP H~N ~49 AT THE DEGi3'NJNG OF A CURVE TO THE R~GHT; TtlENCE AROUND SAID CURVE TO TIlE RIGI IT. tlAVING A CENTRAL ANGLE OF O0 DEGREES ~IINUTES ~1 SECONDS. A RADIUS OF 1559.24 FEET. AN ARC LENGTII OF I 6.6g FEET. AND A CI iORD WlilCH BEARS SOUTH 2] DEGREES 56 MINUTES 14 SECONDS EAST. A DISTANCE OF 16.65 FEET. TO A SET I,~ INCll IRON PIN WITII A YELLOW PLASTIC CAP STANIPED tI,~N 184g; TI IENCE SOUTtl 76 DEGREES 44 ~IlNUTES 43 SECONDS WEST A DISI'ANCE OF 109~52 FEET TO A I INCll IRON PIN SET WITII YELLOW CAP STANII'ED II,tN 1549. TI IENCE NORTI I S3 DEGREES 36 NIINUTES 21 SECONDS WEST A DISTANCE OF 225.77 FEE'F l'O lilE POIST OF BEGISNING AND CO~I'AINISG IN ALL 0.1~4 ACI(E OF LAND. /,. 0F 7c~',~, . ,,,.:.'~: ~ ~-_.~...6~f ~.trp~ ~ :,,~P:< ,,}~t EXHIBIT F ~1717 I I/2&~000 REV 01/04/2001 SLOPE EASE~IENT 8 I-IALLFORD ALL THAT CERTAIN TRACT OR PARCEL OF LAND LYING AND BEING SITUATED IN Tile D. LA,%IBERT SURVEY. ABSTRACT NU~,IBER 784. CITY OF DENTON, DENTON COUNTY. TEXAS. BEING PART OF LOT I. BLOCK A. LO~IBARD ADDITION. AN ADDITION TO TI IE CITY OF DENTON. AS SItOWN BY THE PLAT THEREOF RECORDED IN CABINET I. PAGE I.~2. PLAT RECORDS. DENTON COUNTY, TEXAS, AND BEING IslORE PARTICULARLY DESCRIBED AS FOLLOWS: CO~DIENCING AT A ½ INCH IRON PIN FOUND AT TIlE SOUTHWEST CORNER OF SAID LOT I ON TIlE EAST RIGHT-OF-WAY LINE OF I~IAYHILL ROAD (A 120 FOOT RIGHT-OF-WAY). SAID PIN ALSO BEING THE NORTtlWEST CORNER OF A TRACT DESCRIBED IN A DEED TO ROY EIALLFORD. RECORDED UNDER COUNTY CLERK'S FILE NU~IBER 93-R0073462. REAL PROPERTY RECORDS. DENTON COUNTY. TEXAS; TtlENCE NORTH 00 DEGREES :SS NIINUTES 40 SECONDS EAST. WITII TIlE WEST LINE OF SAID LOT I AND TIlE EAST LINE OF SAID RIGHT-OF-WAY, A DISTANCE OF 507.$9 FEET TO A SETI.'2. INCtl IRON PIN WITH A YELLOW PLASTIC CAP STA.~IPED H&N 1549. AT THE POINT-OF-BEGINNING OF THE HEREIN DESCRIBED TRACT, SAID POINT OF BEGINNING BEING SOUTH 49 DEGREES 31 ~IINUTES 4.1 SECONDS WEST 93:i.40 FEET FRO~I A RAILROD SPIKE FOUND IN TI IE IvlIDDLE OF NIAYHILL ROAD AT TIlE SOUTHEAST CORNER OF TIlE D. tlOUGH SUREY ABSTRACT 696. WHICH IS THE NORTHEAST CORNER OF TIlE D LA~IBER'I' SURVEY ABSTRACT 78.1, ON THE WEST LINE OF TIlE GIDEON WALKER SURVEY ABSTRACT TIIENCE NORTH 00 DEGREES 55 I~IINUTES 40 SECONDS EAST WITII TIlE WEST LINE OF SAID [.or i, A DISTANCE OF 20.13 FEET, TO A SETIC INCl I IRON PiN WITI I A YELLOW PLASTIC CAP STA,~II'ED I-I&N 1849; TI IENCE NORTII 83 DEGREES 37 ,~IINUTES 14 SECONDS EAST. A DISTANCE OF 141.78 FEET. TO A SET I,~ INCll IRON PIN WITH A YELLOW PLASTIC CAP S'FA~II'ED II&N 1849; TltENCE SOUTH 86 DEGREES 10 NIINUI'ES 18 SECONDS EAST A DISTANCE OF 137.1 I FEET TO A SET INCH IRON PIN WITH A YELLOW CAP STA,'SlPED I I&N 1~49. AT TIlE BEGINNING OF A CURYE TO TIlE RIGIIT; TI IENCE WITII SAID RIGI IT-OF-WAY. AROUND SAID CURVE TO T! IE RIGI IT. I IA\'ING A CENTRAL ANGLE OF O0 DEGREES 46 ~IINUTES 2~ SECONDS. A RADIUS OF 15.~9.24 FEET. AN ARC LENG~II OF 25.13 FEET, AND A CIIORD WlllCl-I BEARS SOUTtl 26 DEGREES 06 I~IINUTES 40 SECONDS EAST. A DISTANCE OF 25.13 FEET. TO A SET 1/2 INCtl IRON PIN WITII A YELLOW PLASTIC CAI~ STA.~IPI~D tl&N I $49 AT THE BEGINNING OF A CURVE TO THE LEFT: TilENCE AROUND SAID CURVE TOTtlE LEFT. IIAVING A CENTRAl. ANGLE OF I I DEGREES ~.IINUTES 54 SECONDS, A RADIUS OF 460.00 FEET, AN ARC LENGTII OF 91.78 FEET. AND A CtlOI(D WIIICH BEARS SOUTII ~$ DEGREES 16 ~IINU'I'ES 06 SECONDS WEST. A DISTANCE OF 91.6.~ FEET. TO A SET 1,2. INCH IRON PIN WITH A YELLOW PLASTIC CAP S'FASIPED TIIENCE NORTII 89 DEGREES 00 NIINUTES 57 SECONDS WEST. A DISTANCE OF I'~7.~1 FEEl TU POINT OF BEGI.NNISG AND CONTAINING IN ALL 0.203 ACRE OF LAND: ATTACHMENT STREET RIGHT-OF-WAY DEED STATE OF TEXAS COUNTY OF DENTON KNOW ALL MEN BY THESE PRESENTS: T~AT Ray Hallford, hereinafter called "Grantor," for and in consideration of the sum of Ten Dollars and No Cents ($10.00) and other good and valuable consideration to Grantor in hand paid by the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter called "Grantee," the receipt and sufficiency of which is hereby acknowledged, and for which no lien is retained, express or implied, does GRANT, BARGAIN, SELL and CONVEY unto the Grantee all of that certain tract or parcel of land containing approximately 0.565 acres of land and being situated in the D. Lambert Survey, Abstract Number 784, City of Denton, Denton County, Texas, as more particularly described in Exhibit "A" and illustrated in Exhibit "B", which are attached hereto and made a part hereof for all purposes, together with all improvements situated thereon and all singularly the rights and appurtenances thereto and any and all right, title and interest of Grantor in and to any adjacent streets, alleys or rights-of-way, hereinafter collectively called the "Property." It is acknowledged and agreed that Grantee is acquiring the Property for the purpose of permitting Grantee or its agents or assigns to construct, maintain, repair and operate thereon street, highway, right-of-way, drainage improvements, utilities and other related improvements. This provision shall not be construed as any restraint on the right of Grantee to convey fee simple title to the Property. Grantor hereby waives any and all right for compensation for the property interests conveyed to Grantee hereunder, including without limitation, the right or claim to severance damages, or any damages to, or diminution in value of, other lands belonging to Grantor, that may be claimed or asserted by virtue of such acquisition of the Property by Grantee. Notwithstanding the area and shape of the Property, this Deed shall be construed as conveying all rights and appurtenances incident to any ordinary conveyance of land. TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto said Grantee, its successors and assigns, 'forever. Grantor does hereby bind Grantor and Grantor's heirs, successors, executors and assigns, to warrant and forever defend, all and singular the Property unto the Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through, or under Grantor, but not otherwise. SIGNED this day of , 2001 Ray Hallford ACKNOWLEDGMENT STATE OF Texas COUNTY OF This instrument was acknowledged before me this , 2002, by Ray Hallford. day of Print N~me~ Hy -~{%~lissi:%n e~ires AFTER RECORDING RETURN TO CITY OF DENTON ENGINEERING DEPARTMENT 601 E. HICKORY SUITE B DENTON, TX 76201 ATTN: PAUL WILLIAMSON 2 EXHIBIT A ROAD HAMMETT & NASH, INC, ENGINEERS & SURVEYORS 223 W. HICKORY, DENTON. TEXAS 76201 940-.387-0506 fo= 940-565-04.~6 horn I noshl~G;r~.,,-a I.nel EXHIBIT B 31717 I 1/'28~000 TRACT 3B I-IALLFORD ALL TllAT CERTAIN TRACT OR PARCEL CJF LAND LYING AND BEING SITUATED IN TI IE D. LAMBERT SURVEY. ABSTRACT NU~IBER 784. CITY OF DENTON. DENTON COUNTY. TEXAS. BEhNG PART OF LOT I. BLOCK A LOMBARD ADDITION. AN ADDITION TO THE CITY OF DENTON. AS SIIOW~I BY TIlE PLAT TilEREOF RECORDED IN CABINET I. PAGE 182. PLAT RF. CORDS, DENTON COUNTY. TEXAS. AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMNIENCING AT A i/~ INCH IRON PiN FOUND AT TtlE SOUTIIWEST CORNER OF SAID LOT i ON TIlE EAST RIGHT-OF-WAY LINE OF klAYHILL ROAD (A 120 FOOT RIGHT-OF-WAY). SAID PIN ALSO BEING THE NORTHWEST CORNER OF A TRACT DESCRIBED IN A DEED TO ROY IIALLFORD. RECORDED UNDER COUNTY CLERK'S FILE NUMBER 93-R0073462. REAL PROPERTY RECORDS. DENTON COUNTY. TEXAS; TilENCE NORTI! O0 DEGREES 55 NIINUTES 40 SECONDS EAST. WITH THE WEST LINE OF SAID LOT I AND THE EAST LINE OF SAID RIGHT-OF-WAY, A DISTANCE OF 427.8q FEET TO A SETI-~- INCll IRON PiN WlTil A YELLOW PLASTIC CAP STA,%IPED H&N 1849. AT TIlE POINT-OF-BEGINNING OF TI IE I IEREIN DESCRIBED TR2,CT. SAID POINT OF BEGINNING BEING SOUTH 46 DEGREES 03 ,',IINUT~S 52 SECONDS WEST 99.~. 12 FEET FROM A RAILROD SPIKE FOUND IN TI IE .%IIDDLE O1" ~IAYI IILL ROAD AT TH E SOUTHEAST CORNER OF THE D. HOUGH SUREY ABSTRACT 6~6. WHICll IS TIlE NORTHEAST CORNER OF THE D LA~IBERT SURVEY ABSTRACT 734. ON TIlE WEST LINE OF TI GIDEON WALKER SURVEY ABSTRACT 1330; TllENCE NORTll 00 DEGREES 55 NIINUTES 40 SECONDS EAST WlTII THE WEST LINE OF SAID LOT AND THE EAST LINE OF SAID RIGtlT-OF-WAY. A DISTANCE OF S0.00 FEET. TO A PIN WITH A YELLOW PLASTIC CAP STAMPED II~N 1849; THENCE SOUTII 89 DEGREES 00 NIINUTES ~7 SECONDS EAST, A DISTANCE OF 197.$1 FEET. 1'O A SET I~ INCH IRON PIN WITH A YELLOW PLASTIC CAP STANIPED II~N 1549 AT I'IIE BEGINNING OF A CURVE TO TIlE LEFT; TIIENCE AROUND SAID CURVE TO THE LEDF HAVING A CENTRAL ANGLE OF I I DEGREES NIINUTES ~4 SECONDS, A RADIUS OF 460.00 FEET. AN ARC LENGTII OF 91.~ I:E~'F. AND A ClIORD WHICH BEARS NORTtl $5 DEGREES 16 NIINUTES 06 SECONDS EAST. A DISTANCE OF 91.63 FEET. TO A SET It~ INCII IRON PIN WITH A YELLOW PLASTIC CAP STA~II'ED II&N 1849 ON TIlE WEST R'.GI~1'. OF-WAY LINE OF THE OLD NI.K. ~ T. ~ILROAD RIGtI'F-OF-WAY. AT THE BEGINNING OF A CURVE TO TIlE RIGHT; TIIENCE WITH SAID RIGHT-OF-WAY. AROUND SAID CURVE TO THE RIGIIT. IIAVING A CENT~-~L A~GLE OF O~ DEGREES 31 NIINU'FES 46 SECONDS. A RADIUS OF 1S5').24 FEET. AN ARC LENGTH C,F 82.08 FEET. AND A CHORD WHICH BEARS SOUTlt 24 DEGREES 27 ~IINUTES 33 SECONDS EAST. A DISTANCE OF 8~.05 FEET. TO A SET I~ INCH IRON PIN WITII A YELLOW PLASTIC CAP STASIPED tI.~N 1549 AT THE BEGINNING OF A CURVE TO TIlE RIGtlT: TI IENCE AROUND SAID CURVE TO TI IE RIGI IT. I lAVING A CENTRAl. ANGLE OF I klI~UTES 27 SECONDS. A RADIUS OF 540.0~ FEET. AN ARC LESGTII OF 1~7.02 FI~E'I'. AND A CHORD WHICII BEARS SOUTH ~4 DEGREES 12 ~II~LITES 49 SECONDS ~VES'I'. A DISTANCE OF TO A SET h~ INCII IRON PIN WITII A YELLOW PLASTIC CAP STAMPED II&N TI IENCE NORTII ~9 DEGREES 00 MINUTES 57 SECO~ST. A DISTANCE OF I,~7.7~ FEE'I' POINT OF BEGINNING AND CONTAINING IN A~-~ LAND. · · ~.~.~.~ ' .~..x.; ..... ~:: ....... :'... ~. G~,,.,.,?:.~'::'~:'..:~.~ L: ~ ATTACHMENT 2 SLOPE EASEMENT THE STATE OF TRXAS COUNTY OF DENTON KNOW ALL MEN BY THESE PRESENTS: THAT Ray Hallford, hereinafter called ~Grantor" of Denton County, Texas, in consideration of the sum of Ten Dollars and No Cents ($10.0e) and other good and valuable consideration in hand paid by the City of Denton, Texas, receipt of which is hereby acknowledged, does by these presents grant, bargain, sell and convey unto the City of Denton, Texas, the free and uninterrupted use, liberty and privilege of the passage in along, upon and across the following described property, owned by Grantor, and situated in the D. Lambert Survey, Abstract Number 784 City of Denton, Denton County, Texas, further described in Exhibit "A" illustrated in Exhibit ~B" and Exhibit ~C", illustrated in Exhibit ~D", attached hereto and made a part hereof it is further agreed that the City of Denton, Texas in consideration of the benefits above set out, will remove from the property above descr~.be~, such fences, buildings, and other obstructions as may now be found upon said property the purpose of constructing, reconstructing, installing, repairing, and perpetually maintaining slope in, along, upon and across said premises, with the right and privilege at all times of the grantee herein, his or its agents, employees, work~n and representatives having ingress, egress, and regress in, along, upon and across said premises the purpose of making additions to, improvements on and repairs to said slope facilities or any part thereof TO HAVE AND TO HOLD unto the said City of Denton, Texas as aforesaid for the purposes aforesaid the premises above described Witness my hand, this the day of , 2001. Ray Hallford ACKNOWLEDGEMENT THE STATE OF Texas § COUNTY OF § This instrument was acknowledged before me on this the , 2002 by Ray Hallford. Notary Public, State of My Commission Expires: Accepted this the day of Denton Texas (Resolution No. 91-073). , 2001 for the City of BY: Paul Williamson Real Estate & Capital Support Manager AFTER RECORDING RETURN TO: CITY OF DENTON ENGINEERING DEPARTMENT 601 E. HICKORY SUITE B DENTON, TX 76201 ATTN: PAUL WILLIAMSON 3 EXHIBIT A 31717 I I/'2S,~000 REV 01/04/2.001 SLOPE EASE~IENT 8 tlALLFORD ALL THAT CERTAIN TRACT OR PARCEL OF LAND LYING AND BEING SITUATED IN TIlE D. LAMBERT SURVEY. ABSTRACT NUMBER 784, CITY OF DENTON. DENTON COUNTY. TEXAS. BEING PART OF LOT I. BLOCK A. LO~IBARD ADDITION. AN ADDITION TO TI IE CITY OF DENTON. AS $1tOWN BY THE PLAT THEREOF RECORDED IN CABINET I, PAGE 132. PLAT RECORDS. DENTON COLFhlTY. TEXAS, AND BEING ~IORE PARTICULARLY DESCRIBED AS FOLLOWS: COMNIENCING AT A ½ INCH IRON PIN FOUND AT Tile SOUTHWEST CORNER OF SAID LOT ! ON TItE EAST RIGHT-OF-WAY LINE OF MAYHILL ROAD (A 120 FOOT RIGIIT-OF-WAY). SAID PIN ALSO BEING THE NORTtlWEST CORNER OF A TRACT DESCRIBED IN A DEED TO ROY HALLFORD. RECORDED LrNDER COUNTY CLERK'S FILE NUNIBER 93-R0073462. REAL PROPERTY RECORDS. DENTON COUNTY. TEXAS; TllENCE NORTH 00 DEGREES 55 MINUTES 40 SECONDS EAST. WITII TI IE WEST LINE OF SAID LOT I AND TIlE EAST LINE OF SAID RIGHT-OF-WAY, A DISTANCE OF $07.59 FEET TO A SETI.~ INCtl IRON PiN WITH A YELLOW PLASTIC CAP STA.~IPED tl&N 1849. AT THE POINT-OF-BEGINNING OF THE HEREIN DESCRIOED TRACT, SAID POINT OF BEGINNING BEING SOUTH 49 DEGREES 31 ~IINUTES SECONDS WEST 935.40 FEET FRO~I A RAILROD SPIKE FOUND IN TIlE ~IIDDLE OF I~IAYI-IILL ROAD AT TIlE SOUTHEAST CORNER OF TIlE D. tlOUGH SUREY ABSTI~,\CT 696. WHICtl IS THE NORTtlEAST CORNER OF TIlE D LA,MBERT SURVEY ABSTRACT ?54, ON TIlE WEST LINE OF TI GIDEON WALKER SURVEY ABSTRACT 1330; TIIENCE NOKTtl 00 DEGREES 55 MINUTES 40 SECONDS EAST WITII TIlE WES'r LINE OF SAID [.or I A DISTANCE OF 20.1.~ FEET, TO A SETI~ INCll IRON PIN WITI I A YELLOW PLASTIC CAP STAMPED tl&N 1849; TIIENCE NORTtl 83 DEGREES 37 MINUTES 14 SECONDS EAST. A DISTANCE OF 141.75 FEET. TO A SET I,~ INCII IRON PIN WITH A YELLOW PLASTIC CAP S'I'A~IPED iI&N 1~49; TItENCE SOUTH 85 DEGREES 10 I~IINUI'ES 15 SECONDS EAST A DISTANCE OF 137.1 I FEET TO A SET INCH IRON PIN WITH A YELLOW CAP STAMPED I I&N 1849. AT TIlE BEGINNING OF A CURVE TO TIlE RIGtlT; TIIENCE WITII SAID RIGIIT-OF-WAY. AROUND SAID CUI[¥E TO TIlE RIGIIT. IIA¥1NG A CENTRAL ANGLE OF 00 DEGREES 46 ~IINUTES 2~ SECONDS, A RADIUS OF 1S.~9.24 FEET, AN ARC LENG~II OF 2S.13 FEET. AND A CIIORD WIIICH BEARS SOUTtl .~fi DEGREES 0f ~,IINU'I'ES 40 SECONDS EAST. A DISTANCE OF 25.13 FEET. TO A SET I~ INCH IRON PiN WITII A YELLOW PLASTIC CAI' STA.~IPED H&N 1549 AT THE BEGINNING OF A CURVE TO THE LEFT; TI IENCE AROUND SAID CURVE TO TIlE LEFT. I IAVING A CENTRAl. ANGLE OF I I DEGREES ~.IINUTES 54 SECONDS, A RADIUS OF 460.00 FEET. AN ARC LENGTI I OF 91.7.~ FEET. AND A CIIORD WlIICH BEARS SOUTII 85 DEGREES 16 ~IINU'FES 06 SECONDS WEST. A DISTANCE OF 91.6.~ FEET. TO A SET h'2. INCH IRON PIN WITH A YELLOW PLASTIC CAP S'FASIPED II~(N IS49; TIIENCE NORTII S9 DEGREES 00 NIINUTES 57 SECONDS WEST. A DISTANCE OI, 97.Sl I:lJl'."l T(.) T!l!~ POINT OF BEGINNING AND CONTAINING IN ALL 0.203 ACRE OF LAND. MA YHIL L ROAD Z 85' BUILCINC LINE. 0 ~ HAMMETT & NASH, .NC. I~..~~l ENGINEERS & SURVEYORS ~ ,.o_,~,_o~~ ~..,61o..,,~;~%o~; IDATE n ¢/f).ct/O 1 IJoe t~o. ,~1 7! 7 31717 I 1/25/2000 ,%1 .O1'i". I.:ASI':MI".NT U I IAI .I.FOI~,I.) ALL TIIAT CERTAIN TRACT OR PARCEL OF LAND LYING AND BEING SITUATED IN 'I'llE D, LAS!BERT SURVEY, ABSTRACT NUNIBER '784. CITY OF DENTON. DENTON COUNTY. TEXAS, BEING PART Off LOT 1. BLOCK A, LONIBARD ADDITION, AN ADDITION TO TI IE CITY OF DENTON. AS SHOV~ ,~ BY THE PLAT THEREOF RECORDED IN CABINET 1, PAGE IS2, PLAT RECORDS, DENTON COUNTY, TEXAS, AND BEING NIORE PARTICULARLY DESCRIBED AS FOLLOWS: CO,'vhNI£NClNG AT A ~ INCH IRON PIN FOUND AT THE SOUTtlWEST CORNER DP SAID LOT I ON TI IE £AST RIGHT-OF-WAY LINE OF ~IAYHILL ROAD (A 120 FOOT RIGIIT-OI:-WAY), SAID PIN Al. SO BEING THE NORTHWEST CORNER OF A TRACT DESCRIBED IN A DEED TO ROY HALLFORD. RECORDED UNDER COUNI'Y CLERK'S FILE NUMBER 93-R0073462. REAL I'ROPEI~'FY I(I~CORDS. DENTON COUNTY. TEXAS; THENCE NORTH 00 DEGREES $$ Is, IlNUTES 40 SECONDS EAST. WITtl TIlE WEST LINE O1" SAID LOT I AND TIlE EAST LINE OF SAID RIGHT-OF-WAY. A DISTANCE OF $07.$q FEET TO A SETI,'2 INCil IRON PIN WITtl A YELLOW PLASTIC CAP STANIPED H&N 1549. AT TIlE i'OINT-OF-BEGINNING OF TI IE llEREIN DESCRIBED TRACT. SAID POINT OF BEGINNING BEING SOUTH 45 DEGREES 49 I~IINLJ'I'ES 29 SECONDS WEST 997.29 FEET FRONI A RAILROD SPIKE FOUND h"4 TIlE NIIDDLE OF I~,IAYIIILL ROAD AT TI IE SOUTtlEAST CORNER OF THE D. HOUGII SUREY ABSTRACT 696. WI IICI I IS TI IE NORTHEAST CORNER OF TI-IE D LANIBERT SURVEY ABSTRACT 7S4. ON TI IE WEST LINE OF TI IE GIDEON WALKER SURVEY ABSTRACT 1310; TtlENCE NORTH 00 DEGREES SS NIINUTES 40 SECONDS EAST WITII THE WEST LINE OF SAID LOT A DISTANCE OF $.S9 FEET. TO A SETI,'2 INCII IRON PIN WITII A YELLOW PLASTIC CAP S'I'ASII'ED H,~:N I $49; THENCE sOuTtl S9 DEGREES 00 NIINUTES $? SECONDS EAST. A DISTANCE OF 197.'13 FEET. TO A SET I,"2. INCtl IRON PIN WITI'I A YELLOW PLASTIC CAP STA~IPED H&N 1549 AT 'FILE BEGINNING OF A CURVE TO THE LEFT; TtlENCE WITII SAID RIGIIT-OF-WAY. AROUND SAID CURVE TO TIlE LEFT. I lAVING A CENTRAl. ANGLE OF 13 DEGREES ]2 IslINUTES 2'; SECONDS. A RADIUS OF 540.00 FEET. AN ARC LENGTII OF 127.62 FEET. AND A CHORD WIIICII BEARS NORTII $4 DEGREES 12 ~IINUTES 4q SECONDS EAST. A DISTANCE OF 127.32 FEET. TO A SET I/2 INCll IRON PIN WITII A YELLOW I'LASTIC CAP S'I'A.'sI!'ED tI&N I $49 AT TIlE BEGINNING OF A CURVE TO THE RIGIIT: THENCE AROUND SAID CURVE TO TI IE RIGI IT. tlAVING A CENTRAL ANGLE OF O0 DEGREES 30 I~.IINUTES 51 SECONDS. A RADIUS OF 1559.24 FEET. AN ARC LENGTII OF 16.6S FEET. AND A CIIORD WHICH BEARS SOUTtl 2! DEGREES 56 ~IINUTES 14 SECONDS EAST. A DISTANCE OF 16.65 FEET. '1'O A SET 1,2. INCll IRON PIN WITII A YELLOW PLASTIC CAP STANIPED th.~N 1549: TllENCE SOUTH 76 DEGREES 44 ~IINUTES 43 SECONDS WEST A DISTANCE OF 109.5--. FI:ET TO A 1'2 INCII IRON PiN SET wrFII YELLOW CAP STASIPED I I&N 1849. TI IENCE NORTII $3 DEGREES 36 NIINUTES 21 SECONDS WEST A DISTANCE OF 225.'/'/FEE'F '1'O 1'lIE POINT OF BI]GINNING AND CONTAINING IN AI.L 0.134 ACRE OF LAND. , ..::;~>~,~3'.'''°q, / ; ..... :;'i.i:,,.:~:,:.,..,.// MA YH/L L ROAD __ I ~ 2 ~ HAMMETT 8,. ,ASH, INC. ,,,J ENGINEERS & SURVEYORS 223 W. HICKORY, DENTON, TEXAS 76201 Agenda 02-021 06/18/02 #25 AGENDA INFORMATION SHEET AGENDA DATE: June 18, 2002 DEPARTMENT: CM/DCM/ACM: Engineering David Hill, 349-8314 fi ~' SUBJECT Consider adoption of an Ordinance approving the purchase of approximately 3.172 acres of land for Public Utility Easemems and approximately 2.655 Acres for Temporary Construction Easemems between the City of DeNon and DeNon Independem School District located in the S. McKracken Survey Abstract Number 817, City of DeNon, DeNon County, Texas; authorizing the expenditure of funds therefore; and providing an effective date. (Lake Ray Roberts Water Transmission Line Project, and the Loop 288 Water Line Project). BACKGROUND Staff has been negotiating the right-of-way acquisitions for Public Utility Easemems and Temporary Construction Easemems with DeNon Independem School District (DISD) for the Lake Ray Roberts Water Transmission Line Project and the Loop 288 Water Line Project for the past six months. A portion of these easemems will provide utility services to the Natatorium/Aquatic Site that is being constructed joimly between DISD and the City of DeNon Parks Departmem. We have reached an equitable understanding and have come to terms with DISD regarding acquisition of the necessary easemems for a total sum of $56,854.91. OPTIONS 1. Approve the ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION Staff recommends approval of the ordinance. ESTIMATED PROJECT SCHEDULE Project start date in March 2002. PRIOR ACTION/REVIEW None FISCAL INFORMATION See Attached Summation of Tracts ATTACHMENTS Location Map Draft Ordinance Public Utility Easement Exhibits (Legal Descriptions and Survey Illustrations) Prepared By: Pamela England Real Estate Specialist Respectfully submitted: Charles Fiedler, Director Engineering Department ORDINANCE NO. CONSIDER ADOPTION OF AN ORDINANCE APPROVING THE PURCHASE OF 3.172 ACRES OF LAND FOR PUBLIC UTILITY EASEMENTS AND 2.655 ACRES FOR TEMPORARY CONSTRUCTION EASEMENTS BETWEEN THE CITY OF DENTON AND DENTON iNDEPENDENT SCHOOL DISTRICT LOCATED iN THE S. MCKRACKEN SURVEY ABSTRACT NUMBER 817, CITY OF DENTON, DENTON COUNTY, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE. (LAKE RAY ROBERTS WATER TRANSMISSION LiNE PROJECT AND THE LOOP 288 WATER LiNE PROJECT). THE COUNCIL OF THE CITY OF DENTON, TEXAS HERBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to purchase from the Denton Independent School District public utility easements and temporary construction easements in substantially the form of the Easements which are attached hereto and made a part of this ordinance for all purposes regarding the Lake Ray Roberts Transmission Waterline Project and the Loop 288 Water Line Project. SECTION 2. The City Manager is authorized to make the expenditures in the amount of the purchase price of $56,854.91 for the Easements. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: PUBLIC UTILITY EASEMENT That DENTON INDEPENDENT SCHOOL DISTRICT, (Grantor), in consideration of the payment ofTen Dollars and No/100 ($10.00) by the CITY OF DENTON, Texas, (City), a municipal corporation of the State of Texas, receipt of which is hereby acknowledged, grants and conveys to the City a permanent Public Utility Easement for water, sanitary sewer, electric and stormwater drainage pipes, lines, and facilities across the real property owned by Grantor, as described in Exhibit "A", illustrated in Exhibit "B", described in Exhibit "C", illustrated in Exhibit "D", and described in Exhibit "E" illustrated in Exhibit "F", attached hereto and incorporated into this document by reference. The grant made includes and is subject to the following: '1. Purpose. This easement grants to the City the right to construct, install, reconstruct, repair, relocate, operate, and maintain water, sanitary sewer, and stormwater pipelines, valves, facilities and appurtenances, electric poles, wires and related facilities, and other public utilities and related facilities in, on, over, under and across the permanent easement. 2. Temporary Construction Easement. In addition to the permanent easement, the City is granted temporary construction easements for the initial construction only of one water transmission pipeline. The temporary construction easements shall extend parallel to the permanent easements, all as described in Exhibit "G" illustrated in Exhibit "H", describ ed in Exhibit 'T' illustrated in Exhibit "J", and described in Exhibit "K" illustrated in Exhibit "L", attached hereto and incorporated into this document by reference. Upon conclusion of the initial construction, the temporary construction easements shall terminate and the City shall remove all debris, surplus material, and construction equipment and leave the property substantially equal in appearance to the condition existing prior to construction, except for any trees or shrubs removed. 3. Building and Structures. Grantor shall not construct, erect or place any buildings, signs, or other permanent structures, or portions thereof, in, on, or over the easement. The city will replace or repair any sidewalk, parking lot, or driveway that exists on the easement on the date of execution of this instrument if removed or damaged by the City during initial construction of the water transmission line. If the Grantor constructs or places a building, sign, parking lot, driveway, private walkway or other structures or improvements over the easement after execution of this easement document, the City may remove all or part of the structures or improvements as necessary to construct, reconstruct, replace, repair, alter, relocate, operate or otherwise exercise its rights herein without any obligation to replace or repair the structures or improvements and without any liability to Grantor, including the obligation to make further payment to Grantor. 4. Fences and Gates. If necessary to remove or relocate any fence or gate during initial construction of the water transmission line, the City will remove or relocate the fence or gate at its expense. After completion of the initial construction, the City shall reinstall any fence or gates initially removed or relocated in their original locations. The Grantor, but not the City, may construct new fences and gates on the easement after the date of this instrument but the fences and gates shall be placed substantially perpendicular to the easement. Any fences placed across the easement shall contain gates or removable panels so that the easement is readily accessible by the city's employees and agents at all times. If gates are to be kept locked by Grantor, the City shall be provided the keys or other means, as applicable, so the City may open all locks for access without prior notice to Grantor. 5. Access. For purposes of exercising its rights, the City shall have access to the easement by way of existing public property or right-of-way and not from other lands owned by Grantor outside the easement. 6. Trees and Landscaping. Grantor shall not plant any tree upon the easement property. City may cut, trim, or completely remove any trees or portions of trees now or hereafter located within the easement without liability to Grantor, including the obligation to make further payment to Grantor. Grantor may plant shrubs, vines, grass, irrigation systems and other systems landscape features within the easement, but the City may remove all or part of any shrubs, vines, grass, or other landscape features as is necessary to construct, reconstruct, replace, repair, alter, relocate, or operate its utilities without any liability to Grantor, including the obligation to make further payment to Grantor. 7. Crops. The payment herein made includes any damage or loss to crops sustained in the future by Grantor resulting from the City's construction, reconstruction, repair, replacement, or other use of the easement for the purposes granted. 8. Grantor's Rights. Grantor shall have the right to make use of the easement for any purpose that does not interfere with the City's rights in the easement for the purpose granted, subject to the restrictions contained herein. 9. Neither party has made any representations or promises outside the written provisions of this easement document relating to the subject matter of this easement document. 10. Successors and Assigns. This grant shall run with the land and shall be binding upon the parties and their heirs, successors, and assigns. SIGNED this ~ ~ day of (~'~)~. _, 2002. Rick WOolfol~/ Board of Trustees, President Subscribed and sworn to before me, by ~a~,q3~vte~ this the ~ day . . ,2002. NOTARY PUBLIC State of Texas Exp, 01-04-2004 ]~ Accepted this ~ day of 073). Notary Public, State of Texas 2002 for the City of Denton, Texas (Resolution No. 91- BY: Paul Williamson Right-of-Way Agent AFTER RECORDING RETURN TO: City of Denton Engineering Department 601 North Hickory Street Suite B Denton, Texas 76205 Attention: Paul Williamson 3 EXHIBIT A Surveyors & Engineers of North Texas 1621 Amanda Court Ponder, Texas 76259 Ph: (940) 482.2906 FAX: (940) 482-29tl Toll-Free: (877) 48'I-SENT www.sentcorp.com RAY ROBERTS WATER LINE PARCEL #7 TRACT I 50' UTILITY EASEMENT FIELD NOTES to all that certain tract of land situated in the S. McKracken Survey Abstract Number 817, City of Denton, Denton County, Texas and being a part of the called I20A20 acre tract described in the deed from Edward L Wolski to Denton Independent School District recorded under Clerk's File Number 97-R0083710 of the Real Property Records of Denton County, Texas; the subject tract being more particularly described as follows: BEGINNING for the Northeast comer of the tract being described herein at an iron rod set for the Northeast comer of the said 120,420 acre tract and the Southeast comer of the called 237.76 acre tract described in the deed to 3'canine Watson Kuhlken recorded in Volume 2935, Page 544 of the said Real Property Records at the intersection of the middle of Long R. oad with the NorXhwest right-of- way ofF. M. 428; THENCE South 31 Degrees 39 Minutes 10 Seconds West with the Northwest right-of-way of F.M. 428 a distance of 590.0 feet to a right-of-way monument found at the beginning of a curve to the left having a radius .of 5,778.9 feet from which a 1/2 inch iron rod found bears Noah 28 Degrees 01 Minutes 36 Seconds West a distance of 1.8 feet; THENCE Southwesterly with the Northwest right-of-way of F.M. 428 along the arc of the said curve, an arc length of 265.6 feet (chord bearing South 30 Degrees 20 Minutes I0 Seconds West a distance of 265.6 feet) to the end ofthe curve from which a I/2 inch iron rod found bears South 36 Degrees 50 Minutes 54 Seconds West a distance of 2.1 feet; THENCE South 29 Degrees 0[ Minutes 10 Seconds West with the Northwest right-of-way of F~M. 428 a distance of 237.9 feet to the Southeast comer thereof and the Northeast comer of the called 4.229 acre tract described in a deed from Charles J. Wilson, Trustee to Michael Reynolds, et ux recorded in Volume 824, Page 817 of the Deed Records of Denton County, Texas from which a 1/2 inch iron rod found bears Noah 86 Degrees 56 Minutes 50 Seconds West a distance of 0.5 feet; THENCE Noah 86 Degrees 56 Minutes 50 Seconds West along a wire fence with the South tine of the 120.420 acre tract and the North line of the said 4.229 acre tract a distance of 55.6 feet; THENCE Northeasterly across the 120.420 acre tract, 50 feet Northwest of and parallel with the Northwest right-of-way of F. M. 428, the following 3 calls; I. North 29 Degrees 01 Minutes 10 Seconds East a distance of 262.3 feet to the beginning ora curve to the right having a radius of 5,828.9 feet; 2. Along the arc of the said curve, an arc length of 267.9 feet (chord bearing Noah 30 Degrees 20 Minutes l0 Seconds East a distance of 267.9 feet) to thc end of the said curve; 3. North 31 Degrees 39 Minutes 10 Seconds East a distance of 560.2 feet to the North line of the 120.420 acre tract and the South line of the 237.76 acre tract in Long Road; THENCE South 89 Degrees 07 Minutes 56 Seconds East along the middle of Long Road with the South line of the called 237.76 acre tract and the North line of the 120.420 acre tract a distance of 58.2 feet to the PLACE OF BEGINNING and enclosing 1.253 acres. Revision: November 12, 2001, kyjr EXHIBIT B ~(IE0O' IN aaE~)~ PARCEL # 7 DiSD LAND UTILITY EASEMENT EXHIBIT S- McKRACKEN SY. A-817 CITY AND COUNTY OF DENTON, TEXAS DATE: 02-15-01 ngineers of ENorth Texas, Ine, SCALE: 1'=50' DRAWN: KYJR CHECKED: WI~C Surveyors EXHIBIT C Surveyors & Engineers of North Texas 1621 Amanda Court Ponder, Texas 76259 Ph: (940) 482.2~06 FAX: (940) 482.2911 Tolt-Free: (877) 481-SENT w'ww.sentCorp.com RAY ROBERTS WATER LINE PARCEL #9 TRACT 1 50' UTILITY EASEMENT FIELD NOTES to all that certain tract of land situated in the S. McKracken Survey Abstract Number 817, City of Denton, Denton County, Texas and being a part of the called 120.420 acre tract described in the deed from Edward F. Wolski to Denton Independent School District recorded under Clerk's File Number 97-R0083710 of the Real Property Records of Denton County, Texas; the subject tract being more particularly described as follows: BEGINNING for the Southeast comer of the tract being described hereia at a right-of-way monument at a salient comer of the said 120.420 acre tract and the Southwest comer of the called 4.229 acre tract described in the deed from Charles J. Wilson, Trustee to Michael Reynolds, et ux recorded in Volume 824, Page 817 of the Deed Records of Denton County, Texas at a flare in the Northeast right-of-way of Loop 288; THENCE South 86 Degrees 08 Minutes 45 Seconds West with the Northeast right-of-way of Loop 288 and the South line of' the 120.420 acre tract a distance of 43.1 feet to a point 50 feet from the extension of the Northwest right-of-way o£ F. M. 428 from which a right-of-way monument at the Southerly Southeast comer of the 120.420 acre tract bears South 86 Degrees 08 Minutes 45 Seconds West a distance of 1.5 feet; THENCE North 29 Degrees 01 Minutes 10 Seconds East, 50 feet Northwest of and parallel with the Northwest right-of- way of F.M. 428, a distance of 86.4 feet to the East line of the 120.420 acre tract and the West line of the said 4.229 acre; THENCE South 00 Degrees 57 Minutes 44 Seconds East along a wire fence w'ith the East line of the 120.420 acre tract and the West line of' the said 4.229 acre tract a distance of 72.5 feet to the PLACE OF BEGiN'.~ING and enclosing 0.036 of an acre. Revision: November I2, 2001, kyjr EXHIBIT D PARCEL #9 DISD LAND UTILITY EASEMENT EXHIBIT S McCRACIqEN SURVEY A-817 CITY AND COUNTY OF DENTON, 'I'EX~S OATE: 02-15-01 SCALE: DRAWN: KYJR CHECKED: WMC ~Nurvey°rs & ngrineers of o t h Texas, Inc, EXHIBIT E Surveyors & Engineers of North Texas 1621 Amsnda Court Ponder, Texas 76259 Ph: (940) 462-2906 FAX: (940} 482-2911 TolE-Free: (877) 481-SENT www,sentcorp.com LOOP 288 WATER LINE DISD TRACT l 25' UTILITY EASEMENT FIELD NOTES to all that certain tract of land situated in the S. McKrackcn Survey Abstract Number g t7, City of Denton, Denton County, Texas and being a part of the called 120.420 acre tract described in thc deed from Edward F. Wotsk[ to Denton Independent School District recorded under Clerk's File Number 97-R0083710 of the Real Property Records o.r Denton County, Texas; the subject tract being more particularly described as follows: BEGiNNiNG for the Southeast comer of the tract being described herein at the Southwest comer of the Ray Roberts Water Line Easement Parcel 9 on the North right-of-way line of Loop 288, South 86 Degrees 08 Minutes 45 Seconds West a distance o f 43. I feet from a right-of-way monument at the Southerly Southeast corner of thc 120.420 acre tract; THENCE Northwesterly with thc South line of the 120,420 acre tram and the Nnrth right-of-way line of Loop 288 the following 6 calls: 1. South 86 Degrees 08 M~nutes 45 Seconds West a distance of 1,5 feet to a right-of-~vay monument found at an angte point; 2. Along the arc of a curve to the lel~ having a radius of 5839.6, an arc length of 513.6 feet (chord bearing North 66 Degrees 07 Minutes 00 Seconds West a distance of5t3.5 feet); 3. North 75 Degrees 22 Minutes 14 Seconds West a distance of 727.2 feet; 4. North 79 Degrees [8 Minutes 57 Seconds West a distance of 614.7 feet; 5. Along thc arc ora curve to the left having a radius of 5839.6 feet, an arc length of 1052,0 feet (chord bearing North 83 Degrees 44 Minutes 21 Seconds West a distance of 1050,6 feet) to a right-of-way monument found at the end of the curve; 6. North 89 Degrees 27 Minutes 45 Seconds West a distance of 242.8 feet to a ¼ inch iron rod found at the Southwest comer of the DISD tract; THENCE North Ol Degrees 07 Minutes I 1 Seconds East with the West line of the 120.420 acre tract a distance of 25.0 feet; TI.IENCI'; Southeasterly across the 120.420 acre tract, 25 feet North of and parallel with the North right-of-way line of Loop 288, the following 5 calls; I. South 89 Degrees 27 Minules 45 Seconds East a distance of 242.7 feet to the beginning of a curve to the right haviug a radius of 5864.6 feet; 2. Along the arc of thc said curve to the right, an arc length of 1056.5 feet {chord hearing South 83 Degrees 44 Minutes 26 Seconds East a distance of 1055.1 feet); 3. Suuth 79 Degrees 18 Minutes 57 Seconds East a distance of 615.4 feet; 4. South 75 Degrees 22 Minutes 14 Seconds East a distance of 729.6 feet; 5. Along the arc of a curve to the right having a radius of 5864.6 feet, an arc length of 420.2 feet (chord bearing South 66 Degrees 35 Minutes 53 Seconds East a distance of 420.1 feet); THENCE North 84 Degrees 55 lvlinutes 18 Seconds East continuing across the 120.420 acre tract a distance of 120.0 feet to the North comer of the Ray Roberts Water Line Easement Parcel 9 on tho East tlne of the 120.420 acre tract, North 00 Degrees 57 Minutes 44 Seconds West a distance of 72.5 feet from a concrete right-of-way monument at the Southerly Southeast comer thereof on the North right-of-way line of Loop 288; THENCE South 29 Degrees 01 Minutes 10 Seconds West across the 120.420 acre tract with the Northwest line of the Ray Roberts Water Line Easement Parcel 9 a distance of 86.2 feet to the PLACE OF BEGINNING and enclosing 1.883 acres of [and. February 04, 2002, kyjr /,'9 ,*.,~..V['¢ 7~Y.,.~ s/__. ' / · " v.. ;\,q-k.p. ?.,.r:'rqL:..~j ~ i ) r- 'C oSo n .' " ~;'~'X%' .t' -nb,,' :..' DISD LAND U;E. EXHIBIT S, MCKRACKEIN SY, A-817 CiTY AND COUNTY OF DENTON, TEXAS DATE: 01 FEB 2002 SCALE: 1"=200' DRAWN: KY JR CHECKCC': WMC Surveyors & ENngi.neers or orth ~ Texas, Inc. EXHIBIT G Surveyors & Engineers of North Texas 162~, Amanda Court Ponder, Texas 75259 Ph: (940) 482.2906 FAX: (940) '482-2911 Toll-Free: (877) 481-'SENT v,,~w.sentcorp.com RAY ROBERTS WATER LINE PARCEL #7 TRACT 2 30' TEMPORARY CONSTRUCTION EASEMENT FIELD NOTES to all that certain tract of land situated in the S. McKracken Survey Abstract Number 817, Ci~ of Denton, Denton Count3', Texas and being a part of the called 120.420 acre tract described in the deed from Edward F. Wolski to Denton Independent School District recorded under Clerk's File Number 97-R0083710 of the Real Property Records of Denton Count5', Texas; the subject tract being more particularly described as follows: BEG1Nq'4[NG for the Northeast comer of the tract being described herein on the South line of the called 237.76 acre tract described in the deed to Jeanine Watson Kuhlken recorded in Volume 2935, Page 544 of the said Real Property Records and the'North line of the said 120.420 acre tract from which an iron rod set for the Northeast comer thereof bears South 89 Degrees 07 Minutes 56 Seconds East a distance of 5g.2 feet in Long Road; THENCE Southwesterly across the 120.420 acre tract, 50 feet Northwest of and parallel with the Northwest right-of-way of F.M. 428 and the East line of the 120.420 acre tract, the fo!lowing 3 calls; 1. South 31 Degrees 39 Minnies 10 Seconds West a distance of 560.2 feet to the beginning of a curve to the left having a radius of 5,828,9 feet; 2. Along the arc oFthe said curve, an arc length of 267.9 feet (chord bearing South 30 Degrees 20 Minutes 10 Seconds West a distance of 267.9 feet) to the end of the curve; 3. South 29 Degrees 01 Minutes 10 Seconds West a distance of 245.2 feet to the South line oFthe 120.420 acre tract and the North tine of the called 4.229 acre tract described in a deed from Charles J. \Vilson, Trustee to Michael Reynolds, et ux recorded in Volume 824, Page 817 of the Deed Records of Denton County, Texas; THENCE North 86 Degrees 56 Minutes 50 Seconds West along a wire fence with the South tine of the 120.420 acre tract and the North line of the said 4.229 acre tract a distance of 33.4 feet; THENCE Northeasterly across the 120.420 acre tract, 80 feet Northwest of and parallel x~itb, the Northwest right-of-way ofF. M. 428 the following 3 calls; 1. North 29 Degrees 01 Mint~tes 10 Seconds East a distance of 276.88 feet to the beginning oFa curve to the right having a radius 0['5,858.9 feet; 2. Along the arc of the said curve, an arc length oF269.3 feet (chord bearing North 30 Degrees 20 Minu*.es 10 Seconds East a distance of 269.3 feet) to the end of the curve; 3. North 31 Degrees 39 Minutes l0 Seconds East a distance of 542.3 feet to the North line of the 120.420 acre tract and the South line of the 237.76 acre tract in Long Road; THENCE South 89 Degrees 07 Minutes 56 Seconds East along the middle of Long Road with the South line of' the called 237.76 acre tract and the North line of the 120.420 acre tract a distance of 34.9 feet BEGINNING and enclosing 0.750 of an acre. PLACE OF EXHIBIT H PARCEL # 7 I " D1SDLAND ~ ~urveyors & ':- DATE:02-15-01 orth UTILITY EASEMENT EXHIBIT sc~E:,'=~o' ex~s, [nc, S. McKRACKEN 0% A.817 DRAWN: KY JR Cl~ AND COUN~ OF DENTON, TEXAS CH~CKED: WMC EXHIBIT I Surveyors & Engineers of North Texas ~,621 Amanda Courl Ponder, Texas 76259 p/n: (940) 482-2906 FAY,: (940) 482.2911 Toll-Free: (877) 481-SENT ww',v.$en[cotp.com RAY ROBERTS WATER LINE PARCEL #9 TRACT 1 50' UTILITY EASEMENT FIELD NOTES to all that certain tract of land situated in the S. McKracken Survey Abstract Number 817, City of Denton, Denton County, Texas and being a part of the called 120.420 acre tract described in the deed from Edward F. Wolski to Denton Independent School District recorded under Clerk's File Number 97-R0083710 of the Real Property Records of Denton County, Texas; the subject tract being more particularly described as follows: BEGI'N,'NI'NG for the Southeast comer of the tract being described herein at a right-of-way monument at a salient comer of the said 120.420 acre tract and the Southwest comer of the called 4.229 acre tract described in the deed from Charles J, Wilson, Trustee to Michael Reynolds, et ux recorded in Volume 824, Page 817 of the Deed Records of Denton Count>', Texas at a flare in the Northeast right-of-way of Loop 288; THENCE South 86 Degrees 08 Minutes 45 Seconds West with the Northeast right-oD.~'ay of Loop 288 and the South liue of the 120.420 acre tract a distance of 43.1 feet to a point 50 feet from the extension of'the Northwest right-of-way of F. M. 428 from which a right-of-way monument at the Southerly Southeast comer of the 120.420 acre tract bears South 86 Degrees 08 Minutes 45 Seconds West a distance of I..5 feet: THENCE North 29 Degrees 01 Minutes 10 Seconds East, 50 feet Northwest of and parallel with the Northwest right-of- way ofF.M+ 428, a distance of $6.4 feet to the East line ofthe 120.420 acre tract and the West line of the said 4.229 acre; THENCE South 00 Degrees 57 Mitlules 44 Seconds East along a wire fence with the East line o[' the 120.420 acre tract and the West tine of the said 4.229 acre tract a distance of 72.5 feet to the PLACE OF BEG[N;~ING and enclosing 0.036 of an acre. Revision: November t 2,2001, kyj r EXHIBIT j PARCEL #9 DISD LAND UTILITY EASEMENT EXHIBIT sC^LE: S McCRACKE. N SURVEY A-817 DRAWN: ,KYJR CII~ AND COUNTY OF DENTON, TEXAS CHECKED; WI,lC Surveyors & Engrineers of N o th Texas, thc. EXHIBIT K Surveyors & Engineers of North Texas 1621 Amanda Court Ponder, Texas 76259 Ph: (940) 482.2906 FAX: (940) 482-2911 'roll-Free: (877} 4el-SENT www.sentcorp.com LOOP 288 WATER LINE DISD TRACT 2 25' TEMPORARY CONSTRUCTION EASEMENT FIELD NOTES to all that certain tract o.r land situated in the S. McKracken Survey Abstract Number 817, City of Denton, Denton County, Texas and being a par~ of the called 120.420 acre tract described in the deed From Edward F. Wolski to Denton Independent School District recorded under Clerk's File Number 97-R0083710 of the Real Property Records of Denton County, Texas; the subject tract being more particularly described as follows: BEGINNING for the Southeast comer of the tract being described herein on the East line of the 120.420 acre tract at the North comer of the Ray Roberts Water Line Easement Parcel 9, North 00 Degrees 57 Minutes 44 Seconds West a distance of 72.5 feet from a concrete right-of-way monument at the Southerly Southeast comer of the 120.420 acre tract on the North right-of-way line of Loop 288; THENCE South 84 Degrees 55 Minutes 18 Seconds West across the 120.420 acre tract with the North line of a permanent utility easement a distance of 120.0 feet; THENCE Northwesterly continuing across the 120.420 acre tract, with thc North line ora permanent utility easement 25 feet North of and parallel with the North right-of-way line &Loop 288, the following 5 carts; t. AIong the are of a curve to thc left having a radius of 5864.6 feet, an arc length of 420.2 feet (chord bearing North 66 Degrees 35 Minutes 53 Seconds West a distance of 420. I); North 75 Degrees 22 Minutes 14 Seconds West a distance of 729.6 feet; 3. North 79 Degrees 18 Minutes 57 Seconds West a distance of 615,4 feet; Along the arc of a curve to the left having a radius of 5864.6 feet, an arc length of 1056.5 feet (chord bearing North 83 Degrees 44 Minutes 26 Seconds West a distance of 1(155.1 feet) to the end of the curve; 5. North 89 Degrees 27 minutes 45 Seconds West a distance ot'242,7 feet to the West line ortho 120.420 acre tract; TI1ENCE North 01 Degrees 07 Minutes 11 Seconds East with.the West line ortho 120.420 acre tract a distance o[25.0 feet; TI IENCE Northeasterly across the 120.420 acre tract, 50 feet North of and parallel with the North right-of-way line of Loop 288, thc following 5 calls; 1. South 89 Degrees 27 Minutes 45 Seconds East a distance of 242.5 feet to thc beginning of a curve to the right having a radius of 5889.6 feet; 2, Along the arc of thc said curve to the right, an arc length of 1061.0 feet (chord bearing South 83 Degrees 44 Minutes 3t Seconds East a distance of 1059,5 feet); 3. South 79 Degrees 18 Minutes 57 Seconds East a distance of 616.1 feet; 4. South 75 Degrees 22 Minutes 14 Seconds East a distance of 731.9 feet; 5. Along thc arc ora curve to the right having a radius of 5889.6 feet, an arc length of 416.6 feet (chord bearing South 66 Degrees 38 Minutes 15 Seconds East a distance of 416.5 feet); TllENCE North 84 Degrees 55 Minutes 18 Seconds East across the 120.420 acre tract, a distance oF 115.0 feet to the East line of the 120.420 acre tract; THENCE South 00 Degrees 57 Minutes 44 Seconds East with the East line of the 120.420 acre tract a distance of 25,1 feet to the PLACE OF BEGINNING and enclosing 1.827 acres of land. February 04, 2002, kyjr Revised February 11, 2002, kyjr ::m--Il I I / I i / / / I t / DISD LAND U.E. EXHIBIT S McKRACKEN SY. A.817 CITY AND COUNTY OF DENTON. TEXAS / / ~ Surveyors & En ineers or o^~: o~ F~.2~O~ No th SCALE: 1"=200' T e x a s, I CHECKED: WMC Agenda 02-021 06/18/02 #26 AGENDA INFORMATION SHEET AGENDA DATE: June 18, 2002 DEPARTMENT: CM/DCM/ACM: Engineering David Hill, 349-8314 SUBJECT Consider adoption of an ordinance declaring a public necessity exists and finding that public welfare and convenience requires the taking and acquiring of an approximate 0.807 acre tract or parcel of land in fee simple for street purposes such title to be in the name of the City of DeNon and a drainage and access easemem comaining approximately 0.036 acre and three temporary construction, grading, and access easements containing approximately 0.089 acre, 0.124 acre and 0.028 acre, respectively, all of which are located in Stephen A. Venter Survey, Abstract Number 1315 in the City of Denton, Denton County Texas and being part of a tract of land conveyed to Gary Jay Madrigal by quitclaim deed recorded in Volume 4155, Page 1044, Deed Records of DeNon County, Texas; authorizing the City Manager or his designee to make an offer to purchase the property for its fair market value and if such offer is refused, authorizing the City Attorney, or his designee, to institute the necessary proceedings in condemnation in order to acquire the property necessary for the public purpose of constructing street, drainage, mility and related improvemems; and declaring an effective date. BACKGROUND The attached plat illustrates the tracts necessary for the widening and improvements to Hickory Creek Road. James Daniels and Associates, Inc., the comracted right-of-way services firm, has been in negotiations for purchase of right-of-way and easemems with the landowner, Mr. Gary J. Madrigal, with the initial offer made February 25, 2002. To date, negotiations have been reported to be non- productive. The landowner has requested compensation in excess of what staff considers equitable. OPTIONS 1. Approve the ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION Staff recommends approval of the ordinance. ESTIMATED PROJECT SCHEDULE Hickory Creek Road improvements to be initiated upon possession of necessary parcels, estimated in August, 2002. PRIOR ACTION/REVIEW None FISCAL INFORMATION James Daniels and Associates, Inc. procured a market study for the Hickory Creek Road corridor at the direction of city staff. The study was performed by Sargent Appraisal Company. James Daniels and Associates, inc., utilizing data contained within the market study, forwarded to the landowner an offer of $9,630.00 inclusive of the right-of-way and easements. This offer has been rejected by the landowner. An appraisal specific to this property has been ordered, it is our opinion that the likelihood for remainder damages is low and that the formal appraisal report will yield an offer amount consistent with the amount derived from the market study, in accordance with Texas Property Code 21.0111, the appraisal will be made available to the landowner at the time the final acquisition offer is made. ATTACHMENTS Location map Draft ordinance Survey Illustration Exhibits Prepared By: Tod J. Taylor Real Estate Specialist Respectfully submitted: Charles Fiedler, Director Engineering Department ion Map HICKORY CREEK ROAD WIDENING IMPROVEMENTS S:\Our Documents\Ordinances\02\Condemnation Ordinance Parcel 3.doc ORDINANCE NO. AN ORDINANCE DECLARING A PUBLIC NECESSITY EXISTS AND FINDING THAT PUBLIC WELFARE AND CONVENIENCE REQUIRES THE TAKING AND ACQUIRING OF AN APPROXIMATE 0.807 ACRE TRACT OR PARCEL OF LAND iN FEE SIMPLE FOR STREET PURPOSES SUCH TITLE TO BE IN THE NAME OF THE CITY OF DENTON AND A DRAINAGE AND ACCESS EASEMENT CONTAINING APPROXIMATELY 0.036 ACRE AND THREE TEMPORARY CONSTRUCTION, GRADING, AND ACCESS EASEMENTS CONTAINING APPROXIMATELY 0.089 ACRE, 0.124 ACRE AND 0.028 ACRE, RESPECTIVELY, ALL OF WHICH ARE LOCATED IN STEPHEN A. VENTER SURVEY, ABSTRACT NO. 1315 iN THE CITY OF DENTON, DENTON COUNTY TEXAS AND BEING PART OF A TRACT OF LAND CONVEYED TO GARY JAY MADRIGAL BY QUITCLAIM DEED RECORDED iN VOLUME 4155, PAGE 1004, DEED RECORDS OF DENTON COUNTY, TEXAS; AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO MAKE AN OFFER TO PURCHASE THE PROPERTY FOR ITS FAIR MARKET VALUE AND IF SUCH OFFER IS REFUSED, AUTHORIZING THE CITY ATTORNEY, OR HIS DESIGNEE, TO INSTITUTE THE NECESSARY PROCEEDINGS IN CONDEMNATION IN ORDER TO ACQUIRE THE PROPERTY NECESSARY FOR THE PUBLIC PURPOSE OF CONSTRUCTING STREET, DRAINAGE, UTILITY AND RELATED IMPROVEMENTS; AND DECLARING AN EFFECTIVE DATE. WHEREAS, it is hereby determined that a public necessity exists and lthat public welfare and convenience hereby require the acquisition of fee simple title for street purposes, with such fee simple title vesting in the City of Demon in the hereinafter d~scribed land for the public purpose of constructing street, drainage, utility and related improvements; and WHEREAS, the hereinafter described property is believed to be owned by Gary Jay Madrigal ("Owner"); NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Public necessity exists and public welfare and convenience require the acquisition of the following: fee simple title for street purposes, with such fee simple title vesting in the City of Denton in that certain tract or parcel of land containing approximately 0.807 acre, together with improvements thereon and appurtenances thereto as more particularly described in Exhibit "A" and illustrated in Exhibit "B", attached hereto and made a part hereof by reference (the "Right-of-Way Property"). a drainage and access easement in the name to the City of Demon, Texas in, over and across that certain tract or parcel of land containing approximately 0.036 acre as more particularly described in Exhibit "C", attached hereto and made a part hereof by reference (the "Drainage Easement") and as depicted on Exhibit "D", attached hereto and made a part hereof by reference; reserving unto the owner of said property the right to us the surface for parking and for driveway access to and from the adjacem public street. three temporary construction, grading and access easemeNs in the name of the City of Denton, Texas in, over and across those certain tracts or parcels of land containing approximately 0.089 acre, 0.124 acre and 0.028 acre, respectively, as more particularly described in Exhibit "E" attached hereto and made a part hereof by reference (the "Temporary Construction, Grading and Access EasemeNs") and as depicted on Exhibit "F", attached hereto and made a part by reference, to use for access, staging, and placement of materials, equipmeN and supplies in conjunction with construction activities for the construction and installation of Drainage Utility Easement and the Hickory Creek Road Paving, Drainage, and Utility ImprovemeNs (the "Construction Activities"), with said Temporary Construction, Grading and Access EasemeN expiring upon the completion of the Construction Activities or two years from the date the City of Denton takes possession of the Temporary Construction, Grading and Access Easement property, which ever occurs first. The Right-of-Way Property, Drainage EasemeN and Temporary Construction, Grading and Access EasemeNs are hereinafter collectively called the "Property". SECTION 2. The City Council finds that there is a public necessity and public need to acquire the Property in the size, scope, width, and dimensions of the Property and for the purposes stated in this ordinance. SECTION 3. The City Manager or his designee is hereby authorized and directed to make an offer for the Property in the amount of the fair market value, including damages to the remainder, if any, as determined by an independeN appraisal obtained by the City. SECTION 4. In the even the offer as described in Section 3 is refused by the Owner of the Property, the City Attorney or his designee is hereby authorized and directed to file the necessary condemnation proceedings or suit and take whatever action that may be necessary against the Owner and any other parties having an interest in the Property to acquire fee simple title for street purposes in the Property, with such fee simple title vesting in the City of DeNon and to acquire the Drainage Easement and Temporary Construction, Grading and Access Easements. SECTION 5. If it should be subsequeNly determined that additional parties other than those named herein have an iNerest in said property, then in that eveN, the City Attorney or his designee is authorized and directed to join said parties as Defendants in said condemnation. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. Page 2 S:\Our Documents\OrdJnances\02\Conderrmarion Ordinance Parcel 3.doc PASSED AND APPROVED this the day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 3 S:\Our Documents\OrdJnances\02\Conderrmarion Ordinance Parcel 3.doc EXHIBIT A RIGHT-OF-WAY ACQUISITION PARCEL 3 BEING a strip of land located in the Stephen A. Venture Survey, Abstract No. 1315, Denton County, Texas and being a portion of a tract of land conveyed to Gary Jay Madrigal by quitclaim deed recorded in Volume 4155, Page 1004, Deed Records of Denton County, Texas, said strip of land being more particularly described by metes and bounds as follows: BEGINNING at a found P.K. nail at the northeast comer of said Madrigal Tract, also being the northwest comer of a tract of land conveyed to the City of Denton, Texas by affidavit and deed recorded in Volume 4647, Page 3456 of said Deed Records, said point being in Hickory Creek Road; THENCE S 3°10'29'' W, with the common line between said Madrigal Tract and said City of Denton Tract, a distance of 48.08 feet to a 5/8 inch capped iron rod (TNP) set on the proposed new south fight-of-way line of said Hickory Creek Road; THENCE with said new right-of-way line, with the following courses and distances: S 89°51'30" W, a distance of 279.57 feet to a set 5/8 inch capped iron rod (TNP); S 81o19'39" W, a distance of 101.12 feet to a set 5/8 inch capped iron rod (TNP); S 89°51'30" W, a distance of 150.00 feet to a set 5/8 inch capped iron rod (TNP); N 73026'33" W, a distance of 52.20 feet to a set 5/8 inch capped iron rod (TNP); S 89°51'30" W, a distance of 67.32 feet to a 5/8 inch capped iron rod (TNP) set on the west line of said Madrigal Tract, also being the original east line of Hickory Creek Ranch, shown by plat recorded in Cabinet S, Page 241, Plat Records of Denton County, Texas; THENCE N 0°51'21" W, with said line, departing from said new right-of-way line, passing a found 1/2 inch iron rod at 11.69 feet, in all a distance of 50.00 feet to the northwest comer of said Madrigal Tract, in Hickory Creek Road; THENCE S 89057'57'' E, a distance of 650.30 feet to the Point of Beginning and containing 0.807 acre of land of which 0.557 acre is included in the existing prescriptive right-of-way, leaving a remainder of 0.250 acre of land more or less. DRAINAGE AND ACCESS EASEMENT BEING a strip of land located in the Stephen A. Venture Survey, Abstract No. 1315, Denton County, Texas and being a portion of a tract of land conveyed to Gary Jay Madrigal by quitclaim deed recorded in Volume 4155, Page 1004, Deed Records of Denton County, Texas, said strip of land being more particularly described by metes and bounds as follows: BEGINNING at a point at the intersection of the west line of said Madrigal Tract with the proposed new south right-of-way line of Hickory Creek Road, previously described above, said point being S 0°51'21" E, a distance of 50.00 feet from the northwest comer of said Madrigal Tract and also being S 0°51'21" E, 11.69 feet from a found 1/2 iron rod in the west line of said Madrigal Tract; ~ THENCE N 89051'30'' E, with said proposed new south right-of-way line, a distance of 29.95 feet; THENCE S 15008'33'' W, departing said right-of-way line, a distance of 108.65 feet to a point on the west line of said Madrigal Tract; THENCE N 00°51'21" W, with said line, a distance of 104.82 feet to the Point of Beginning and containing 0.036 acre of land. Bearings are based the Texas State Coordinate System, North Central Zone (NAD 83). See Exhibit B for map. Exhibit B ,, MAP SHOH~NG PROPOSED RIGH T- OF- WA Y A COUISI TION AND DRAINAGE AND ACCESS EASEMENT City of Denton, Denton County, Texas i CHAUCER ESTATE; PHASE I CHAUCER ESTATES CAB. O. SLD. 267 PHASE II · .~-~ CAB. S, PG. 274 '-] ..... ~-~. ..... ~ 8 -'~-, 41 5 / ". t.------ N 00751'21' W H/CqOt~Y CREEK I ! PHASE II I CAEn. S,I PG. 241, P.R.T.~T. I ~t 27 I ~ 26 ' NOTES: t. Bearings ore based on the Texas State Coordinate System. North Central Zone (Nod 83). 2.Integral parts of this survey: o. Mop b, Field notes 3.The new right-of-way llne will be monumented with §/8" iron rods copped "T.N.P,' EXHIBIT B PARCEL 3 L: ~PROJ- R 14\D£NO0271 \ROW~PARC _3. DWG GEORGE T. CONNELL, JR. VOL. 3135, PG. 436, D.R.D.C.T. HICKORY CREEK ROAD (VARIABLE HID TH s e~'5;; E ~50,.~o' 2 CONNELL ADDITION CAB. P, PG. 75 L II ~'G': ~,.~.11 MLM FAMILY TRUST; CC ~ 96-0059630 R.P.R.D.C.T. IV 279,57 ~J ~V]J~ w 8.~1'~o' E :~.95' PARCEL J ROw I ~'~' ~ m~.~5' o.~o~ ~CR~ rOr~ I 0.557 ACRE IN [XIS~NC ROW I ~50 ACRE REMAINDER DRAtNA~ AND ACCESS EA~MENT j CARY JA Y MADRIGAL ~...... L~% VOL' 4155, Pa 1004, (OUITCLAIM) ~ ~ ~. 429, PG. 46Z (RE~ DEED) ~ 4%%~ALWN E. MEREDI~ ET U~ -~ mL. 829, PG. 474 I CITY OF DENTON VOL. 4647, PG. J456 , 0 200 4O0 6O0 Dote: TEAGUE NALL AND PERKINS I f O0 Macon $1reet Fort Worth, Texa~ 76102 (817) 336-5773 235 Weet Hickory Street Suite tO0 Denton, Texoe 7620! (ge0) 3e3- 4 ~ 77 Agenda 02-021 06/18/02 #27 AGENDA INFORMATION SHEET AGENDA DATE: June 18, 2002 DEPARTMENT: CM/DCM/ACM: Engineering David Hill, 349-8314 SUBJECT Consider adoption of an ordinance declaring a public necessity exists and finding that public welfare and convenience requires the taking and acquiring of an approximate 1.043 acre tract or parcel of land in fee simple for street purposes such title to be in the name of the City of DeNon and said property located in Stephen A. Vetoer Survey, Abstract No. 1315 in the City of DeNon, Denton County Texas and being part of a tract of land conveyed to Alvin E. Meredith et ux by deed recorded in volume 829, page 474 of the deed records of DeNon County, Texas; authorizing the city manager or his designee to make an offer to purchase the property for its fair market value and if such offer is refused, authorizing the City Attorney, or his designee, to institute the necessary proceedings in condemnation in order to acquire the property necessary for the public purpose of constructing street, drainage, utility and related improvemems; and declaring an effective date. BACKGROUND The attached plat illustrates the tracts necessary for the widening and improvements to Hickory Creek Road. James Daniels and Associates, Inc., the comracted right-of-way services firm, has been in negotiations for purchase of right-of-way and easemems with the landowner, Gordon Meredith, with the initial offer made February 25, 2002. To date, negotiations have been reported to be non- productive. The landowner has requested compensation in excess of what staff considers equitable. OPTIONS 1. Approve the ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION Staff recommends approval of the ordinance. ESTIMATED PROJECT SCHEDULE Hickory Creek Road improvements to be initiated upon possession of necessary parcels, estimated in August, 2002. PRIOR ACTION/REVIEW None FISCAL INFORMATION James Daniels and Associates, Inc. procured a market study for the Hickory Creek Road corridor at the direction of city staff. The study was performed by Sargent Appraisal Company. James Daniels and Associates, inc., utilizing data contained within the market study, forwarded to the landowner an offer of $8,534.00 for the necessary right-of-way. This offer has been rejected by the landowner. An appraisal specific to this property has been ordered, it is our opinion that the likelihood for remainder damages is low and that the formal appraisal report will yield an offer amount consistent with the amount derived from the market study, in accordance with Texas Property Code 21.0111, the appraisal will be made available to the landowner at the time the final acquisition offer is made. ATTACHMENTS Location map Draft ordinance Survey Illustration Exhibits Prepared By: Tod J. Taylor Real Estate Specialist Respectfully submitted: Charles Fiedler, Director Engineering Department ion Map HICKORY CREEK ROAD WIDENING IMPROVEMENTS S:\Our Documents\Ordinances\02\Condemnation Ordinance Parcel 4.doc ORDINANCE NO. AN ORDINANCE DECLARING A PUBLIC NECESSITY EXISTS AND FINDING THAT PUBLIC WELFARE AND CONVENIENCE REQUIRES THE TAKING AND ACQUIRING OF AN APPROXIMATE 1.043 ACRE TRACT OR PARCEL OF LAND iN FEE SIMPLE FOR STREET PURPOSES SUCH TITLE TO BE IN THE NAME OF THE CITY OF DENTON AND SAID PROPERTY LOCATED IN STEPHEN A. VENTER SURVEY, ABSTRACT NO. 1315 IN THE CITY OF DENTON, DENTON COUNTY TEXAS AND BEING PART OF A TRACT OF LAND CONVEYED TO ALVIN E. MEREDITH ET UX. BY DEED RECORDED IN VOLUME 829, PAGE 474 OF THE DEED RECORDS OF DENTON COUNTY, TEXAS; AUTHORiZiNG THE CITY MANAGER OR HIS DESIGNEE TO MAKE AN OFFER TO PURCHASE THE PROPERTY FOR ITS FAIR MARKET VALUE AND IF SUCH OFFER IS REFUSED, AUTHORIZING THE CITY ATTORNEY, OR HIS DESIGNEE, TO INSTITUTE THE NECESSARY PROCEEDINGS IN CONDEMNATION iN ORDER TO ACQUIRE THE PROPERTY NECESSARY FOR THE PUBLIC PURPOSE OF CONSTRUCTING STREET, DRAINAGE, UTILITY AND RELATED IMPROVEMENTS; AND DECLARING AN EFFECTIVE DATE. WHEREAS, it is hereby determined that a public necessity exists and that public welfare and convenience hereby require the acquisition of fee simple title for street purposes, with such fee simple title vesting in the City of Demon in the hereinafter d~scribed land for the public purpose of constructing street, drainage, utility and related improvements; and WHEREAS, the hereinafter described property is believed to be owned by Alvin E. Meredith et ux ("Owner"); NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Public necessity exists and public welfare and convenience require the acquisition of the following: fee simple title for street purposes, with such fee simple title vesting in the City of Denton in that certain tract or parcel of land containing approximately 1.043 acre, together with improvements thereon and appurtenances thereto as more particularly described in Exhibit "A" and illustrated in Exhibit "B", attached hereto and made a part hereof by reference (the "Property"). SECTION 2. The City Council finds that there is a public necessity and public need to acquire Property in the size, scope, width, and dimensions of the Property and for the purposes stated in this ordinance. SECTION 3. The City Manager or his designee is hereby authorized and directed to make an offer for the Property in the amount of the fair market value, including damages to the remainder, if any, as determined by an independem appraisal obtained by the City. SECTION 4. In the evem the offer as described in Section 3 is refused by the Owner of the Property, the City Attorney or his designee is hereby authorized and directed to file the necessary condemnation proceedings or suit and take whatever action that may be necessary against the Owner and any other parties having an interest in the Property to acquire fee simple title for street purposes in the Property, with such fee simple title vesting in the City of Denton. SECTION 5. If it should be subsequently determined that additional parties other than those named herein have an interest in said property, then in that event, the City Attorney or his designee is authorized and directed to join said parties as Defendants in said condemnation. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 S:\Our Documents\Or dJnances\02\Conderrmarion Ordinance Parcel 4. doc EXHIBIT A RIGHT-OF-WAY ACQUISITION PARCEL 4 BEING a strip of land located in the Stephen A. Venture Survey, Abstract No. 1315, Denton County, Texas and being a portion of a tract of land conveyed to Alvin E. Meredith et ux. by deed recorded in Volume 829, Page 474, Deed Records of Denton County, Texas, said strip of land being more particularly described by metes and bounds as follows: BEGFNN~'4G at a fmmd P~K. nail at the northwest comer of the remainder said Meredikh Tract, also being the northeast comer of a =act of tread conveyed to the City of Denton, Texas by affidavit and deed recorded in Volume 4647, Page 3456 of said Deed Records, said point being in Hickory Creek Road; THENCE N 89°53'01" E, with the north line of said Meredith Tract a dismce of 883.60 feet to a point on the west fight-of-way line of Teasley Lane, F.M. 2181 (variable width right-of-way); THENCE S l°25'24" E, with said right-of-way line, a distance of 62.81 feet to a 5/8 inch capped iron rod (TNP) set on the proposed new south right-of-way line of said Hickory Creek Road; THENCE with said new right-of-way line with the following courses and dismces: S 89°51'30" W, a dismce of 147.40 feet to a set 5/8 inch capped iron rod (TNP); N 81o36'39" W, a distance of 101.12 feet to a set 5/8 inch capped iron rod (TNP); S 89o51'30" W, a dismce of 640.39 feet to a 5/8 inch capped iron rod (TNP) set on the common line between said Meredith Tract and said City of Denton Tract, from which a found 1/2 inch iron rod at an angle point in said common line bears S 3°10'22" W, a distance of 531.74 feet; THENCE N 3°10'22" E, with said line, departing from said new right-of-way line, a distance of 48.26 feet to the Point of Beginning and containing 1.043 acres of land of which 0.722 acre is included in the existing prescriptive right-of-way, leaving a remainder of 0.321 acre of land more or less. Bearings are based the Texas State Coordinate 5~stem, North 9ne (7%4D 83)~ Exhibit MAP SHO~fNG PROPOSED RIGHT-OF-WA Y ACOUISI770N Cit.v of Denton, Den ton County, Texas GEORGE CONN£LL AOO~tlON PARCEL ,2 ~'Lt!~ ?AM/L Y TRUST CON~¥;qNCE PLAT L.EX/N¢ TON PARK SOU HICKORY CEEEK AL'~4N £, MEREDITH' £T NOTES: $, Beorlngs ore hosed on the Texos Store Coordlnote System, North Centrol Zone (Nod 83). 2. Integrol ports of this survey:. a. Mop b. Field notes 5. The new rlght-of-woy llne will be monumented with ,5/8' iron rods copped "T,N,P." EXHIBIT B PARCEL 4 L: \PRO J- R14\DFN0~271~,ROW\PARC_4.0WG 0 200 400 600 I, I I , I .,,~7~ep a r ed B~. Dote: TEAGUE NALL AND PERKINS t fO0 Macon Street Fort Worth, Texas 76102 (St 7) 336-~773 235 Wear Hickory Street Sulte tO0 Denton, Texae 7620! (940) 383- 4 t 77 Agenda 02-021 06/18/02 #28 AGENDA INFORMATION SHEET AGENDA DATE: June 18, 2002 DEPARTMENT: CM/DCM/ACM: Engineering David Hill, 349-8314 SUBJECT Consider adoption of an ordinance declaring a public necessity exists and finding that public welfare and convenience requires the taking and acquiring of an approximate 0.769 acre tract or parcel of land in fee simple for street purposes such title to be in the name of the City of Demon and a temporary construction, grading, and access easement containing approximately 0.089 acre of land, both of which are located in Eli Pickett Survey, Abstract No. 1018 in the City of Demon, Demon County Texas and being a portion of parcel 2, conveyance plat Lexington Park South, recorded in Cabinet S, Page 299, plat records of Demon County, Texas, conveyed to Dwight Thompson Ministries, Inc. by deed recorded in Volume 3135, Page 439, deed records of Demon County, Texas; authorizing the city manager or his designee to make an offer to purchase the property for its fair market value and if such offer is refused, authorizing the City Attorney, or his designee, to institute the necessary proceedings in condemnation in order to acquire the property necessary for the public purpose of constructing street, drainage, mility and related improvemems; and declaring an effective date. BACKGROUND The attached plat illustrates the tracts necessary for the widening and improvements to Hickory Creek Road. James Daniels and Associates, Inc., the comracted right-of-way services firm, has been in negotiations for purchase of right-of-way and easemems with the landowner, Dwight Thompson Ministries, Inc., with the initial offer made February 25, 2002. To date, negotiations have been reported to be non-productive. The landowner has requested compensation in excess of what staff considers equitable. OPTIONS 1. Approve the ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION Staff recommends approval of the ordinance. ESTIMATED PROJECT SCHEDULE Hickory Creek Road improvements to be initiated upon possession of necessary parcels, estimated in August, 2002. PRIOR ACTION/REVIEW None FISCAL INFORMATION James Daniels and Associates, Inc. procured a market study for the Hickory Creek Road corridor at the direction of city staff. The study was performed by Sargent Appraisal Company. James Daniels and Associates, inc., utilizing data contained within the market study, forwarded to the landowner an offer of $7,433.00 inclusive of the right-of-way and easements. This offer has been rejected by the landowner. An appraisal specific to this property has been ordered, it is our opinion that the likelihood for remainder damages is low and that the formal appraisal report will yield an offer amount consistent with the amount derived from the market study, in accordance with Texas Property Code 21.0111, the appraisal will be made available to the landowner at the time the final acquisition offer is made. ATTACHMENTS Location map Draft ordinance Survey Illustration Exhibits Prepared By: Tod J. Taylor Real Estate Specialist Respectfully submitted: Charles Fiedler, Director Engineering Department ion Map HICKORY CREEK ROAD WIDENING IMPROVEMENTS S:\Our Documents\Ordinances\02\Condemnation Ordinance Parcel 5.doc ORDINANCE NO. AN ORDINANCE DECLARING A PUBLIC NECESSITY EXISTS AND FINDING THAT PUBLIC WELFARE AND CONVENIENCE REQUIRES THE TAKING AND ACQUIRING OF AN APPROXIMATE 0.769 ACRE TRACT OR PARCEL OF LAND iN FEE SIMPLE FOR STREET PURPOSES SUCH TITLE TO BE IN THE NAME OF THE CITY OF DENTON AND A TEMPORARY CONSTRUCTION, GRADING, AND ACCESS EASEMENT CONTAINING APPROXIMATELY 0.089 ACRE OF LAND, LOCATED IN THE ELI PICKETT SURVEY, ABSTRACT NO. 1018 iN THE CITY OF DENTON, DENTON COUNTY TEXAS AND BEING A PORTION OF PARCEL 2, CONVEYANCE PLAT LEXINGTON PARK SOUTH, RECORDED IN CABINET S, PAGE 299, PLAT RECORDS OF DENTON COUNTY, TEXAS, CONVEYED TO DWIGHT THOMPSON MiNiSTRIES, INC. BY DEED RECORDED IN VOLUME 3135, PAGE 439, DEED RECORDS OF DENTON COUNTY, TEXAS; AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO MAKE AN OFFER TO PURCHASE THE PROPERTY FOR ITS FAIR MARKET VALUE AND IF SUCH OFFER IS REFUSED, AUTHORIZING THE CITY ATTORNEY, OR HIS DESIGNEE, TO INSTITUTE THE NECESSARY PROCEEDINGS IN CONDEMNATION IN ORDER TO ACQUIRE THE PROPERTY NECESSARY FOR THE PUBLIC PURPOSE OF CONSTRUCTING STREET, DRAINAGE, UTILITY AND RELATED IMPROVEMENTS; AND DECLARING AN EFFECTIVE DATE. WHEREAS, it is hereby determined that a public necessity exists and that public welfale and convenience hereby require the acquisition of fee simple title for street purposes, with such fee simple title vesting in the City of Demon in the hereinafter d~scribed land for the public purpose of constructing street, drainage, utility and related improvements; and WHEREAS, the hereinafter described property is believed to be owned by Dwight Thompson Ministries, inc. ("Owner"); NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Public necessity exists and public welfare and convenience require the acquisition of the following: fee simple title for street purposes, with such fee simple title vesting in the City of Denton in that certain tract or parcel of land containing approximately 0.769 acre, together with improvements thereon and appurtenances thereto as more particularly described in Exhibit "A" and illustrated in Exhibit "B", attached hereto and made a part hereof by reference (the "Right-of-Way Property"). a temporary construction, grading and access easement in the name of the City of Denton, Texas in, over and across that certain tract or parcel of land containing approximately 0.089 acre as more particularly described in Exhibit "C", attached hereto and made a part hereof by reference (the "Temporary Construction, Grading and Access Easemem") and as depicted on Exhibit "D", attached hereto and made a part hereof by reference; to use for access, staging, and placement of materials, equipmem and supplies in conjunction with construction activities for the construction and installation of the Hickory Creek Road Paving, Drainage, and Utility Improvements Project (the "Construction Activities"), with said Temporary Construction, Grading and Access Easement expiring upon the completion of the Construction Activities or two years from the date the City of Denton takes possession of the Temporary Construction, Grading and Access Easement property, which ever occurs first. The Right-of-Way Property and Temporary Construction, Grading and Access Easement are hereinafter collectively called the "Property". SECTION 2. The City Council finds that there is a public necessity and public need to acquire the Property in the size, scope, width, and dimensions of the Property and for the purposes stated in this ordinance. SECTION 3. The City Manager or his designee is hereby authorized and directed to make an offer for the Property in the amount of the fair market value, including damages to the remainder, if any, as determined by an independent appraisal obtainedby the City. SECTION 4. In the event the offer as described in Section 3 is refused by the Owner of the Property, the City Attorney or his designee is hereby authorized and directed to file the necessary condemnation proceedings or suit and take whatever action that may be necessary against the Owner and any other parties having an interest in the Property to acquire fee simple title for street purposes in the Right-of-Way Property, with such fee simple title vesting in the City of Denton and to acquire the Temporary Construction, Grading and Access Easement. SECTION 5. If it should be subsequently determined that additional parties other than those named herein have an interest in said property, then in that event, the City Attorney or his designee is authorized and directed to join said parties as Defendants in said condemnation. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2002. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: Page 2 S:\Our Documents\OrdJnances\02\Conderrmarion Ordinance Parcel 5.doc APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 3 S:\Our Documents\Ordlnances\02\Condenmation Ordinance Parcel 5.doc EXHIBIT A RIGHT-OF-WAY ACQUISITION PARCEL 5 BEING a strip of l~d located in the Eli Picket~ Sm-vey, Abstract No. 1018, Denton County, Texas and being a portion of Parcel 2, Conveyance Plat Le>dngton Park South, recorded in Cabinet S, Page 299, Plat Record of Denton County', Texas, conveyed to Dwight Thompson Ministries, Inc. by deed recorded in Volume 3135, Page 439, Deed described by Records of Denton Cou~ ty, Texas, said strip of !and being more p~icularly metes and bounds as follows: , ,= t of said Parcel 2. also being the southeast corner of BEGINNING at the southv, es corner , the a ~ac, t of land conveyed to the MLM Family Trust by deed recorded under county clerk's file nmnber 96-0059630, Real Property Records of Denton Cotmty, Texas, said point being in HickoD~' Creek Road; THENCE N 0009'54'' W, with the common line between said Parcel 2 and said MLM Tract, p~sing a found 1/2 inch iron rod at 3'/.50 feet, in all a dis~nc¢ of 50.02 feet to a 5/8 inch capped iron rod (TNP) set on the proposed new north fight-of-way line of said Hickory Creek Road; THENCE with said new fight-of-way line with the following courses and distances: N 89051'30'' E, a distance of 421.83 feet to a set 5/8 inch capped iron rod (TNP); N 0008'30'' W, a distance of 10.00 feet to a set 5/8 inch capped iron rod (TNP); iron rod (TNP) set N 89 51 30 E, a distance of 194.4'/feet to a 5/8 inch capped on the west fight-of-way line of Teasley Lane, F.M. 2181 (variable width fight-of- way); THENCE S 1°32'50" E, with said west fight-of-way line bf Teasley Lane, a distance of 62.23 feet to a point at the southeast comer of said Parcel 2, said point being in Hickory Creek Road; oc~o~,~,~?,, W~ with the souU¼ line of said Parcel 2 a distance of 617~81 feet THENCE N o:, -~ .... ' to the Point of Be~imdn.2 and containin~ 0.769 acre of !and of which 0.549 acre is included in the existing prescriptive righvoi;way, leaving a remamd¢ of 0.220 acre land more or less. Bearings are based the Texas State Coordinate S~'stem, North Centra Zbne Exhibit B MAP SHOWING PROPOSED RIGHT-OF- WA Y ACQUISITION Cit. v of Denton, Den ton Countv, Texos PARCEL / / / 2 ?r~J~:~'~(~ELL ADDlllON CAB. P, PG. 75 DWIGHT THOMPSON MINISTRIES, INC. VOL. $155, PG. 459, D.R.D.C.T. PARCEL 2 CONVEYANCE PLA T LEXING TON PARK SOU TH CAB. S, PG. 299, P.R.D.C.T. GEORGE T. CONNELL, JR. ~ILM FAMILY TRUST ~ o. 7~9 ACRE ~ lo.~,9ACRE IN EXISTING ROW VOL. 3135, PG. 436, D.R.D.C.T. CC I 96-0059630 ~0.220 ACRE REMAINDER J R.P.~.O.C~ ~' ~9'54' ~ 5002' / * ~ ~ . ~N Sg~t'30' E 794471 (VARIABLE WD~ ROW) ,~ ~", ~ ~a9~'22" w s~za~' ~ u~ ~z'~" CITY OF DENTON GARY JAY MADRIGAL ~ ~ ~L. 464~ PG. 3456 ~ 4155. PG. 1004, (~/TCLA/M)J ~L. 429, PG. 467 AL ~N ~ MEREDITH ET U~ ~ VOL. 829, PG. 474, D.R.D.C.~ NOTES: V~. 429, PG. 46~ D.R.D.C ~ (LEGAL DESC-RE~ DEED) 1. Beorlngs ore based on the Texas State Coordlnote System. North Central Zone (Nod 8,3). 2. Integral parts of this survey. a. Map b. Field notes 3, The new ricjht-of-way llne will be monumented with 5/8' iron rods copped 'T.N.P," EpHEH EXHIBIT B PARCEL 5 L: \PRO J- R 14\DENO0271 \ROW~PARC_5.DWG 0 200 400 600 "-t~ep ~red By: Dote: TEAGUE NALL AND PERKINS 1100 Macon Street Fort Worth, Texae 76102 (817) 336-5773 235 We~f Hickory Street Suite 100 Denton, Texas 76201 (940) 383-4t 77 Agenda 02-021 06/18/02 #29 AGENDA INFORMATION SHEET AGENDA DATE: June 18, 2002 DEPARTMENT: CM/DCM/ACM: Engineering David Hill, 349-8314 SUBJECT Consider adoption of an ordinance declaring a public necessity exists and finding that public welfare and convenience requires the taking and acquiring of an approximate 0.352 acre tract or parcel of land in fee simple for street purposes such title to be in the name of the City of DeNon and said property being located in the Eli Pickett Survey, Abstract No. 1018 in the City of DeNon, Denton County Texas and being a portion of a tract of land conveyed to the MLM Family Trust by deed recorded under county clerk's file number 96-0059630, real property records of DeNon County, Texas; authorizing the city manager or his designee to make an offer to purchase the property for its fair market value and if such offer is refused, authorizing the City Attorney, or his designee, to institute the necessary proceedings in condemnation in order to acquire the property necessary for the public purpose of constructing street, drainage, mility and related improvemems; and declaring an effective date. BACKGROUND The attached plat illustrates the tracts necessary for the widening and improvements to Hickory Creek Road. James Daniels and Associates, Inc., the comracted right-of-way services firm, has been in negotiations for purchase of right-of-way with the landowner, MLM Family Trust, with the initial offer made February 25, 2002. To date, the landowner has been unresponsive. OPTIONS 1. Approve the ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION Staff recommends approval of the ordinance. ESTIMATED PROJECT SCHEDULE Hickory Creek Road improvements to be initiated upon possession of necessary parcels, estimated in August, 2002. PRIOR ACTION/REVIEW None FISCAL INFORMATION James Daniels and Associates, Inc. procured a market study for the Hickory Creek Road corridor at the direction of city staff. The study was performed by Sargent Appraisal Company. James Daniels and Associates, inc., utilizing data contained within the market study, forwarded to the landowner an offer of $3,704.00 inclusive of the right-of-way and gravel driveway. This offer has been rejected by the landowner. An appraisal specific to this property has been ordered, it is our opinion that the likelihood for remainder damages is low and that the formal appraisal report will yield an offer amount consistent with the amount derived from the market study, in accordance with Texas Property Code 21.0111, the appraisal will be made available to the landowner at the time the final acquisition offer is made. ATTACHMENTS Location map Draft ordinance Survey Illustration Exhibits Prepared By: Tod J. Taylor Real Estate Specialist Respectfully submitted: Charles Fiedler, Director Engineering Department ion Map HICKORY CREEK ROAD WIDENING IMPROVEMENTS S:\Our Documents\Ordinances\02\Condemnation Ordinance Parcel 6.doc ORDINANCE NO. AN ORDINANCE DECLARING A PUBLIC NECESSITY EXISTS AND FINDING THAT PUBLIC WELFARE AND CONVENIENCE REQUIRES THE TAKING AND ACQUIRING OF AN APPROXIMATE 0.352 ACRE TRACT OR PARCEL OF LAND iN FEE SIMPLE FOR STREET PURPOSES SUCH TITLE TO BE IN THE NAME OF THE CITY OF DENTON AND SAID PROPERTY BEING LOCATED iN THE ELI PICKETT SURVEY, ABSTRACT NO. 1018 IN THE CITY OF DENTON, DENTON COUNTY TEXAS AND BEING A PORTION OF A TRACT OF LAND CONVEYED TO THE MLM FAMILY TRUST BY DEED RECORDED UNDER COUNTY CLERK'S FILE NUMBER 96-0059630, REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS; AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO MAKE AN OFFER TO PURCHASE THE PROPERTY FOR ITS FAIR MARKET VALUE AND IF SUCH OFFER IS REFUSED, AUTHORIZING THE CITY ATTORNEY, OR HIS DESIGNEE, TO iNSTiTUTE THE NECESSARY PROCEEDINGS IN CONDEMNATION IN ORDER TO ACQUIRE THE PROPERTY NECESSARY FOR THE PUBLIC PURPOSE OF CONSTRUCTING STREET, DRAINAGE, UTILITY AND RELATED IMPROVEMENTS; AND DECLARING AN EFFECTIVE DATE. WHEREAS, it is hereby determined that a public necessity exists and that public welfare and convenience hereby require the acquisition of fee simple title for street purposes, with such fee simple title vesting in the City of Demon in the hereinafter d~scribed land for the public purpose of constructing street, drainage, utility and related improvements; and WHEREAS, the hereinafter described property is believed to be owned by MLM Family Trust ("Owner"); NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Public necessity exists and public welfare and convenience require the acquisition of the following: fee simple title for street purposes, with such fee simple title vesting in the City of Denton in that certain tract or parcel of land containing approximately 0.352 acre, together with improvements thereon and appurtenances thereto as more particularly described in Exhibit "A" and illustrated in Exhibit "B", attached hereto and made a part hereof by reference (the "Right-of-Way Property"). SECTION 2. The City Council finds that there is a public necessity and public need to acquire Property in the size, scope, width, and dimensions of the Property and for the purposes stated in this ordinance. SECTION 3. The City Manager or his designee is hereby authorized and directed to make an offer for the Property in the amount of the fair market value, including damages to the remainder, if any, as determined by an independem appraisal obtained by the City. SECTION 4. In the evem the offer as described in Section 3 is refused by the Owner of the Property, the City Attorney or his designee is hereby authorized and directed to file the necessary condemnation proceedings or suit and take whatever action that may be necessary against the Owner and any other parties having an interest in the Property to acquire fee simple title for street purposes in the Property, with such fee simple title vesting in the City of Denton. SECTION 5. If it should be subsequently determined that additional parties other than those named herein have an interest in said property, then in that event, the City Attorney or his designee is authorized and directed to join said parties as Defendants in said condemnation. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 S:\Our Documents\OrdJnances\02\Conderrmarion Ordinance Parcel 6. doc EXHIBIT A RIGHT-OF-WAY ACQUISITION PARCEL 6 ~ BEING a strip of land located in the Eli Pickett Survey, Abstract No. 1018, Denton County, Texas and being a portion of a tract of land conveyed to the MLM Family Trust by deed recorded under county clerk's file number 96-0059630, Real Property Records of Denton County, Texas, said strip of land being more particularly described by metes and bounds as follows: BEGINNING at the southeast comer of said MLM Tract, also being the southwest comer of Parcel 2, Conveyance Plat Lexington Park South, recorded in Cabinet S, Page 299, Plat Records of Denton County, Texas, said point being in Hickory Creek Road; THENCE S 89°52'43'' W, a distance of 306.91 feet to the southwest comer of said MLM Tract; THENCE N 0009'54'' W, passing a found 1/2 inch iron rod at 37.22 feet, in all a distance of 49.92 feet to a 5/8 inch capped iron rod (TNP) set on the proposed new north right-of- way line of Hickory Creek Road; THENCE N 89°51'30" E, with said line, a distance of 306.91 feet to a 5/8 inch capped iron rod (TNP) set on the common line between said MLM Tract and said Parcel 2; THENCE S 0o09'54'' E, with said line, passing a found 1/2 inch iron rod at 12.52 feet, in all a distance of 50.02 feet to the Point of Beginning and containing 0.352 acre of land of which 0.263 acre is included in the existing prescriptive right-of-way, leaving a remainder of 0.089 acre of land more or less. Bearings are based the Texas State Coordinate System, North Central Zone (NAD 83). ,gee Exhibit B MAP SHO~NG PROPOSED RiGHT-OF- WA Y ACQU/S/DON C/ty o,f Denfon~ Den,'on County, Texos ~AUC, ER ~TA TIS C~,,~ ~ ,~,. 274 CON~*,~,-YANC?E PLAT £EXtWCTON PANK C/TY f/?: DEW TQN "-'¢repa'~e'~' j]y: ' , Dote: I' TEAGUE NALL AND PERKINS eemee&r~me eme~maaa 1100 Mocon Street Fort Worth. Texo~ 76102 (817) ~6-5775 235 Weal Hickory Street Suite 100 Denton, Texoe 76201 (940) .]63-4177 Agenda 02-021 06/18/02 #30 AGENDA INFORMATION SHEET AGENDA DATE: June 18, 2002 DEPARTMENT: CM/DCM/ACM: Engineering David Hill, 349-8314 SUBJECT Consider adoption of an ordinance declaring a public necessity exists and finding that public welfare and convenience requires the taking and acquiring of an approximate 0.589 acre tract or parcel of land in fee simple for street purposes such title to be in the name of the City of Demon and a temporary construction, grading, and access easement containing approximately 0.043 acre, both of which are located in the Eli Pickett Survey, Abstract No. 1018 in the City of Demon, Demon County Texas and being part of a tract of land conveyed to George T. Connell, Jr. by deed recorded in Volume 3135, Page 436, deed records of Demon County, Texas; authorizing the city manager or his designee to make an offer to purchase the property for its fair market value and if such offer is refused, authorizing the City Attorney, or his designee, to institute the necessary proceedings in condemnation in order to acquire the property necessary for the public purpose of constructing street, drainage, utility and related improvemems; and declaring an effective date. BACKGROUND The attached plat illustrates the tracts necessary for the widening and improvements to Hickory Creek Road. James Daniels and Associates, Inc., the comracted right-of-way services firm, has been in negotiations for purchase of right-of-way and easemems with the landowner, George T. Connell, Jr., with the initial offer made February 25, 2002. To date, negotiations have been reported to be non-productive. The landowner has requested compensation in excess of what staff considers equitable. OPTIONS 1. Approve the ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION Staff recommends approval of the ordinance. ESTIMATED PROJECT SCHEDULE Hickory Creek Road improvements to be initiated upon possession of necessary parcels, estimated in August, 2002. PRIOR ACTION/REVIEW None FISCAL INFORMATION James Daniels and Associates, Inc. procured a market study for the Hickory Creek Road corridor at the direction of city staff. The study was performed by Sargent Appraisal Company. James Daniels and Associates, inc., utilizing data contained within the market study, forwarded to the landowner an offer of $5,701.00 inclusive of the right-of-way and easements. This offer has been rejected by the landowner. An appraisal specific to this property has been ordered, it is our opinion that the likelihood for remainder damages is low and that the formal appraisal report will yield an offer amount consistent with the amount derived from the market study, in accordance with Texas Property Code 21.0111, the appraisal will be made available to the landowner at the time the final acquisition offer is made. ATTACHMENTS Location map Draft ordinance Survey Illustration Exhibits Prepared By: Tod J. Taylor Real Estate Specialist Respectfully submitted: Charles Fiedler, Director Engineering Department ion Map HICKORY CREEK ROAD WIDENING IMPROVEMENTS S:\Our Documents\Ordinances\02\Condemnation Ordinance Parcel 7.doc ORDINANCE NO. AN ORDINANCE DECLARING A PUBLIC NECESSITY EXISTS AND FINDING THAT PUBLIC WELFARE AND CONVENIENCE REQUIRES THE TAKING AND ACQUIRING OF AN APPROXIMATE 0.589 ACRE TRACT OR PARCEL OF LAND iN FEE SIMPLE FOR STREET PURPOSES SUCH TITLE TO BE IN THE NAME OF THE CITY OF DENTON AND A TEMPORARY CONSTRUCTION, GRADING, AND ACCESS EASEMENT CONTAINING APPROXIMATELY 0.043 ACRE , BOTH OF WHICH ARE LOCATED IN THE ELI PICKETT SURVEY, ABSTRACT NO. 1018 iN THE CITY OF DENTON, DENTON COUNTY TEXAS AND BEING PART OF A TRACT OF LAND CONVEYED TO GEORGE T. CONNELL, JR. BY DEED RECORDED iN VOLUME 3135, PAGE 436, DEED RECORDS OF DENTON COUNTY, TEXAS; AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO MAKE AN OFFER TO PURCHASE THE PROPERTY FOR ITS FAIR MARKET VALUE AND IF SUCH OFFER IS REFUSED, AUTHORIZING THE CITY ATTORNEY, OR HIS DESIGNEE, TO INSTITUTE THE NECESSARY PROCEEDINGS IN CONDEMNATION iN ORDER TO ACQUIRE THE PROPERTY NECESSARY FOR THE PUBLIC PURPOSE OF CONSTRUCTING STREET, DRAINAGE, UTILITY AND RELATED IMPROVEMENTS; AND DECLARING AN EFFECTIVE DATE. WHEREAS, it is hereby determined that a public necessity exists and that public welfare and convenience hereby require the acquisition of fee simple title for street purposes, with such fee simple title vesting in the City of DeNon in the hereinafter described land for the public purpose of constructing street, drainage, utility and related improvements; and WHEREAS, the hereinafter described property is believed to be owned by George T. Connell, Jr. ("Owner"); NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Public necessity exists and public welfare and convenience require the acquisition of the following: fee simple title for street purposes, with such fee simple title vesting in the City of Denton in that certain tract or parcel of land containing approximately 0.589 acre, together with improvements thereon and appurtenances thereto as more particularly described in Exhibit "A" and illustrated in Exhibit "B", attached hereto and made a part hereof by reference (the "Right-of-Way Property"). a temporary construction, grading and access easement in the name to the City of Denton, Texas in, over and across that certain tract or parcel of land containing approximately 0.043 acre as more particularly described in Exhibit "C", attached hereto and made a part hereof by reference (the "Temporary Construction, Grading and Access Easemem") and as depicted on Exhibit "D", attached hereto and made a part hereof by reference; to use for access, staging, and placement of materials, equipmem and supplies in conjunction with construction activities for the construction and installation of the Hickory Creek Road Paving, Drainage, and Utility improvemems Project (the "Construction Activities"), with said Temporary Construction, Grading and Access Easemem expiring upon the completion of the Construction Activities or two years from the date the City of Denton takes possession of the Temporary Construction, Grading and Acces~ Easement property, which ever occurs first. SECTION 2. The City Council finds that there is a public necessity and public need to acquire the Property in the size, scope, width, and dimensions of the Property and for the purposes stated in this ordinance. SECTION 3. The City Manager or his designee is hereby authorized and directed to make an offer for the Property in the amount of the fair market value, including damages to the remainder, if any, as determined by an independeN appraisal obtained bythe City. SECTION 4. In the even the offer as described in Section 3 is refused by the Owner of the Property, the City Attorney or his designee is hereby authorized and directed to file the necessary condemnation proceedings or suit and take whatever action that may be necessary against the Owner and any other parties having an interest in the Property to acquire fee simple title for street purposes in the Property, with such fee simple title vesting in the City of DeNon and to acquire the Temporary Construction, Grading and Access Easement. SECTION 5. If it should be subsequeNly determined that additional parties other than those named herein have an iNerest in said property, then in that eveN, the City Attorney or his designee is authorized and directed to join said parties as Defendants in said condemnation. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 S:\Our Documents\OrdJnances\02\Conderrmarion Ordinance Parcel 7. doc EXHIBIT A RIGHT-OF-WAY ACQUISITION PARCEL 7 BEING a strip of land located in the Eli Pickett Survey, Abstract No. 1018, Denton County, Texas and being a portion of a tract of land conveyed to George T. Connell, Jr. by deed recorded in Volume 3135, Page 436, Deed Records of Denton County, Texas, said strip of land being more particularly described by metes and bounds as follows: BEGINNING at the southwest comer of said Connell Tract, also being the southeast comer of a tract of land conveyed to Tina M. Lauer by deed recorded in Volume 4468, Page 744, of said Deed Records, said point being in Hickory Creek Road and being N 89%7' 11" E, a distance of 45.30 feet from a found P.K. nail at the southwest comer of said Lauer Tract; THENCE N 4°12'31'' E, with the common line between said Connell Tract and said Lauer Tract, a distance of 60.09 feet to a 5/8 inch capped iron rod (TNP) set on the proposed new north right-of-way line of Hickory Creek Road, from which a found 1/2 inch iron rod at an angle point on said line bears N 4°12'31" E, a distance of 737.29 feet; THENCE with said proposed new right-of-way line with the following courses and distances: N 89°51'30" E, a distance of 216.26 feet to a set 5/8 inch capped iron rod (TNP); S 84o25'52" E, a distance of 100.50 feet to a set 5/8 inch capped iron rod (TNP); N 89051'30" E, a distance of 141.26 feet to a 5/8 inch capped iron rod (TNP) set on the common line between the remainder of said Connell Tract and Lot 2, Block A, Connell Addition, shown by plat recorded in Cabinet P, Page 75, Plat Records of Denton County, Texas; THENCE S 0009'54'' E, departing said right-of-way line, with said[ common line, a distance of 49.90 feet to the southeast comer of the remainder of said Connell Tract said point being in Hickory Creek Road; THENCE S 89°51'28" W, a distance of 462.09 feet to the Point of Beginning and containing 0.589 acre of land of which 0.386 acre is included in the existing right-of-way, leaving a remainder of 0.203 acre of land more or less. Bearings are based the Texas State Coordinate System, North Central Zone (NAD 83). ~AP SHOW~NG PROPOSED R/GH T- OF- WA Y A CQU!S! City of Denton, Denton Count}~ Texos PARCEL I E?NA M. LAU£R~' 4' JAY "~ HICKORY CREEK' RANCH CAE/ E, PG, Z4~. P.R.D.C.T~ / / © 2 O0 .5-'-z z Dote: TEAGUE NALL AND PERKINS 1 fO0 Yocon Street FOrt Worth, Texos 76102 (817) 336-5773 23~ West Hickory Street Suite 100 Denton. Texas 76201 (940~ 383-4177 Agenda 02-021 06/18/02 #31 AGENDA INFORMATION SHEET AGENDA DATE: June 18, 2002 DEPARTMENT: CM/DCM/ACM: Engineering David Hill, 349-8314 SUBJECT Consider adoption of an ordinance declaring a public necessity exists and finding that public welfare and convenience requires the taking and acquiring of an approximate 0.062 acre tract or parcel of land in fee simple for street purposes such title to be in the name of the City of Demon and a temporary construction, grading, and access easement containing approximately 0.016 acre, both of which are located in the Eli Pickett Survey, Abstract No. 1018 in the City of Demon, Demon County Texas and being a portion of a tract of land conveyed to Tina M. Lauer by deed recorded in Volume 4468, Page 744, deed records of Demon County, Texas; authorizing the city manager or his designee to make an offer to purchase the property for its fair market value and if such offer is refused, authorizing the City Attorney, or his designee, to institute the necessary proceedings in condemnation in order to acquire the property necessary for the public purpose of constructing street, drainage, utility and related improvemems; and declaring an effective date. BACKGROUND The attached plat illustrates the tracts necessary for the widening and improvements to Hickory Creek Road. James Daniels and Associates, Inc., the comracted right-of-way services firm, has been in negotiations for purchase of right-of-way and easemems with the landowner, Tina M. Bennet, with the initial offer made February 25, 2002. To date, negotiations have been reported to be non- productive. The landowner has requested compensation in excess of what staff considers equitable. OPTIONS 1. Approve the ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION Staff recommends approval of the ordinance. ESTIMATED PROJECT SCHEDULE Hickory Creek Road improvements to be initiated upon possession of necessary parcels, estimated in August, 2002. PRIOR ACTION/REVIEW None FISCAL INFORMATION James Daniels and Associates, Inc. procured a market study for the Hickory Creek Road corridor at the direction of city staff. The study was performed by Sargent Appraisal Company. James Daniels and Associates, inc., utilizing data contained within the market study, forwarded to the landowner an offer of $1,489.00 inclusive of the right-of-way and easements. This offer has been rejected by the landowner. An appraisal specific to this property has been ordered, it is our opinion that the likelihood for remainder damages is low and that the formal appraisal report will yield an offer amount consistent with the amount derived from the market study, in accordance with Texas Property Code 21.0111, the appraisal will be made available to the landowner at the time the final acquisition offer is made. ATTACHMENTS Location map Draft ordinance Survey Illustration Exhibits Prepared By: Tod J. Taylor Real Estate Specialist Respectfully submitted: Charles Fiedler, Director Engineering Department ion Map HICKORY CREEK ROAD WIDENING IMPROVEMENTS S:\Our Documents\Ordinances\02\Condemnation Ordinance Parcel 8.doc ORDINANCE NO. AN ORDINANCE DECLARING A PUBLIC NECESSITY EXISTS AND FINDING THAT PUBLIC WELFARE AND CONVENIENCE REQUIRES THE TAKING AND ACQUIRING OF AN APPROXIMATE 0.062 ACRE TRACT OR PARCEL OF LAND iN FEE SIMPLE FOR STREET PURPOSES SUCH TITLE TO BE IN THE NAME OF THE CITY OF DENTON AND A TEMPORARY CONSTRUCTION, GRADING, AND ACCESS EASEMENT CONTAINING APPROXIMATELY 0.016 ACRE , BOTH OF WHICH ARE LOCATED IN THE ELI PICKETT SURVEY, ABSTRACT NO. 1018 iN THE CITY OF DENTON, DENTON COUNTY TEXAS AND BEING A PORTION OF A TRACT OF LAND CONVEYED TO TiNA M. LAUER BY DEED RECORDED iN VOLUME 4468, PAGE 744, DEED RECORDS OF DENTON COUNTY, TEXAS; AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO MAKE AN OFFER TO PURCHASE THE PROPERTY FOR ITS FAIR MARKET VALUE AND IF SUCH OFFER IS REFUSED, AUTHORIZING THE CITY ATTORNEY, OR HIS DESIGNEE, TO INSTITUTE THE NECESSARY PROCEEDINGS IN CONDEMNATION iN ORDER TO ACQUIRE THE PROPERTY NECESSARY FOR THE PUBLIC PURPOSE OF CONSTRUCTING STREET, DRAINAGE, UTILITY AND RELATED IMPROVEMENTS; AND DECLARING AN EFFECTIVE DATE. WHEREAS, it is hereby determined that a public necessity exists and that public welfare and convenience hereby require the acquisition of fee simple title for street purposes, with such fee simple title vesting in the City of DeNon in the hereinafter described land for the public purpose of constructing street, drainage, utility and related improvements; and WHEREAS, the hereinafter described property is believed to be owned by Tina M. Lauer ("Owner"); NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Public necessity exists and public welfare and convenience require the acquisition of the following: fee simple title for street purposes, with such fee simple title vesting in the City of Denton in that certain tract or parcel of land containing approximately 0.062 acre, together with improvements thereon and appurtenances thereto as more particularly described in Exhibit "A" and illustrated in Exhibit "B", attached hereto and made a part hereof by reference (the "Right-of-Way Property"). a temporary construction, grading and access easement in the name to the City of Denton, Texas in, over and across that certain tract or parcel of land containing approximately 0.016 acre as more particularly described in Exhibit "C", attached hereto and made a part hereof by reference (the "Temporary Construction, Grading and Access Easemem") and as depicted on Exhibit "D", attached hereto and made a part hereof by reference; to me for access, staging, and placement of materials, equipmem and supplies in conjunction with construction activities for the construction and installation of the Hickory Creek Road Paving, Drainage, and Utility improvemems Project (the "Construction Activities"), with said Temporary Construction, Grading and Access Easemem expiring upon the completion of the Construction Activities or two years from the date the City of Denton takes possession of the Temporary Construction, Grading and Access Easement property, which ever occurs first. SECTION 2. The City Council finds that there is a public necessity and public need to acquire the Property in the size, scope, width, and dimensions of the Property and for the purposes stated in this ordinance. SECTION 3. The City Manager or his designee is hereby authorized and directed to make an offer for the Property in the amount of the fair market value, including damages to the remainder, if any, as determined by an independeN appraisal obtained by the City. SECTION 4. In the even the offer as described in Section 3 is refused by the Owner of the Property, the City Attorney or his designee is hereby authorized and directed to file the necessary condemnation proceedings or suit and take whatever action that mai be necessary against the Owner and any other parties having an interest in the Property to acquire fee simple title for street purposes in the Property, with such fee simple title vesting in the City of DeNon and to acquire the Temporary Construction, Grading and Access Easement. SECTION 5. If it should be subsequeNly determined that additional parties other than those named herein have an iNerest in said property, then in that eveN, the City Attorney or his designee is authorized and directed to join said parties as Defendants in said condemnation. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 S:\Our Documents\OrdJnances\02\Conderrmarion Ordinance Parcel 8.doc EXHIBIT A RIGHT-OF-WAY ACQUISITION PARCEL 8 BEING a strip of land located in the Eli Pickett Survey, Abstract No. 1018, Denton .County, Texas and being a portion of a tract of land conveyed to Tina M. Lauer by deed recorded in Volume 4468, Page 744, Deed Records of Denton County, Texas, said strip .of land being more particularly described by metes and bounds as follows: iBEGINNING at a P.K. nail at the southwest comer of said Lauer Tract, said point being in Hickory Creek Road; THENCE N 4024'20'' E, a distance of 60.03 feet to a 5/8 inch capped iron rod (TNP) set on the proposed new north right-of-way line of Hickory Creek Road, from which a found 1/2 inch iron rod at an angle point on the west boundary line of said Lauer Tract bears N 4024'20" E, a distance of 737.95 feet; THENCE N 89°51'30" E, with said proposed new fight-of-way line, a distance of 45.10 feet to a 5/8 inch capped iron rod (TNP) set on the common line between said Lauer Tract and a tract of land conveyed to George T. Connell, Jr. by deed recorded in Volume 3135, Page 436 of said Deed Records; THENCE S 4°12'31" W, departing said right-of-way line, with said common line, a distance of 60.09 feet to the southeast comer of said Lauer Tract, also being the southwest comer of said Connell Tract, said point being in Hickory Creek Road; THENCE S 89°57'11" W, a distance of 45.30 feet to the Point of Beginning and containing 0.062 acre of land of which 0.038 acre is included in the existing prescriptive right-of-way, leaving a remainder of 0.024 acre of land more or less. ~?""'..':~'""~':i':~'~. Bearings are based the Texas State Coordinate System, North Central Zone (NAD 83). .hihit E x h i b i · B kiAP SHO~NG PROPOSED RiCH T- Of:-WA Y A CQUiS! DON City of Denton, Denton County, Texos 0 280 4 C,O 600 Date: TEAGUE NALL AND PERKINS t I00 Macon Street Fart Worth, Texo# 76102 (817) ,336-5773 235 Weal Hickory Street Suite tOO Denton, Texoa 76201 (g40) 383-4t 77 Agenda 02-021 06/18/02 #32 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET June 18, 2002 Engineering David Hill, 349-8314 SUBJECT Consider approval of an exaction variance of Section 35.20.3(B.) of the Code of Ordinances concerning perimeter sidewalk for the Liverpool Addition, being a 5.1 acre single family residential parcel located in a Neighborhood Residential 2 (NR-2) zoning district and on the westerly side of Bonnie Brae approximately 500 feet south of Corbin Road. The Planning and Zoning Commission recommends approval of a full variance (5-2) (V02-0008) BACKGROUND Mr. Jerald Yensan RPLS (representing Mr. Barber, the developer/owner of this property- the Liverpool Addition) has applied for a full variance of Section 35.20.3(B.) (concerning perimeter sidewalk) of the Code of Ordinances regarding relief from all costs associated with sidewalk improvements to Bonnie Brae. The subject sections of the ordinance requires construction improvements along the frontage of the development with city standard sidewalk. Mr. Yensan's request for the full variance is based on the fact that: 1. South Bonnie Brae is currently paved, with roadside ditches, all the way from IH35E to a little south of Roselawn and constitutes about 9,000ft of country road, in reasonably good shape but, not particularly with a straight alignment, 2. That it would be impossible to design a 400ft section of this road without designing the entire 9,000ft and even if Mr. Barber designed the entire length and built his portion, the chances are slim to none that it would fall in such a way that the existing drainage from the roadside ditches would actually drain into the new curb and gutter. In fact, in reality, if the 400ft section were built, it would actually create a drainage problem in that the curb and gutter would more than likely be above and west of the existing ditch. 3. That with the new zoning in effect and given the already existing Solar Way Addition to the north, and there being a substantial portion in the flood zone north of Solar Way and west of Laurel Addition, that is undevelopable, that very little development will occur in the area, and unless the City has a bond election in for specific road improvements in this area, the road construction will never take place. 4. Mr. Barber intends to build one single family residence on a 5 acre tract of land, and it should not be his responsibility to partake in the development of 9,000ft of roadway unless all property owners on each side are assessed equally. Mr. Yensan contends that because of the nature of the existing development along Bonnie Brea, that there will be few other properties that will ever participate in the cost sharing of the construction of Bonnie Brea and therefore his client is being inequitably and unduly burdened even with a partial variance. City staff's response concerning Mr. Yensan's statements: 1. Staff essentially agrees with this assessment. Page 1 2. Staff estimated the costs for full construction of sidewalk along Mr. Barber's frontage at approximately $9,160.00. Therefore, when the applicant submitted documents to the City for approval, staff recommended that the applicant apply for and staff would support a partial variance in the amount of $2,300. City staff has determined that this is the average cost, per residential lot, for 8ft wide sidewalk. Staff recommended this understanding that full construction costs for improvements were not reasonable because of the type of development being proposed (a single family residence) and the length (approximately 458ft) of frontage this property has on Bonnie Brae, a collector street. The City's approval of a partial variance and Mr. Barber's payment of the $2,300.00 would relieve Mr. Barber of any required future construction and/or design requirements for Bonnie Brea unless this property is rezoned and replatted. 3. Bonnie Brae is on the City's mobility plan as a collector street and will some day be improved in this area to meet the City's standards for a residential avenue collector street, through participation from properties fronting Bonnie Brea as they develop, as well as City participation in a CIP for specific sections (such as this, where partial payments are provided and the City provides the remainder of the costs). 4. The City fully expects all of the undeveloped property along the frontage of Bonnie Brea to eventually be developed and all of that property will be required to participate in the costs of constructing Bonnie Brea. In those instances were property is already developed or not developable (currently are and are to remain as agriculture/flood plain), the City will participate in the costs of improvements along those property's frontage. The City Council may approve this exaction variance if the following criterion is met: b) Criteria for variances from development exactions. Where the commission finds that the imposition of any development exaction pursuant to these regulations exceeds any reasonable benefit to the property owner or is so excessive as to constitute confiscation of the tract to be platted, it may recommend approval of variances to waive such exaction's, so as to prevent such excess, to the City Council. Waiver of developmental exactions shall be approved by the City Council. The price the applicant paid for the parcel, or the cost of the proposed building improvements is not a factor in determining reasonable costs. The City Council must decide if the costs associated with the public improvements required by city regulations are reasonable and consistent for the type of development proposed and are proportional to the demand for services created by the development. OPTIONS 1. Approve full variance 2. Approve full variance with conditions 3. Approve a partial variance 4. Deny variance RECOMMENDATION Staff recommended approval of a partial variance to the Planning & Zoning Commission. The Planning & Zoning Commission voted 5-2 to recommend approval of a full variance on May 22, 2002. PRIOR ACTION/REVIEW None Page 2 FISCAL INFORMATION City staff estimates typical installation of 8-foot wide sidewalk (which, because of the new code, is now required adjacent to a collector street such as Bonnie Brae) at $20/foot. The required sidewalk improvement, for approximately 458 ft of frontage along Bonnie Brae, would cost an estimated $9,160.00. The City understands that the cost to construct sidewalk for a collector street to City standards is prohibitive in the development of only one residential lot with a frontage of 458 feet. in the past, the City has allowed for a per lot average cost (of a typical lot in a residential area in Denton) payment in lieu of the costs that are associated with the sidewalk improvements. City staff has determined that the average cost per residential lot for sidewalk improvements as being $2,300. In the past staff has recommended and the City Council has granted partial variances for similar developments, based on the cost of such improvements for an average sized lot in the City of Denton. The City maintains any such money received for these costs in an interest bearing account in accordance with Ordinance 2001-305, which was added to the City Code, Section 34-127 "Payments in Lieu of Construction Policies and Procedures". This ordinance includes (d) which, in part, states: "in the event the City has not authorized the preparation of plans and specifications for the construction of public improvements for which funds have been deposited within ten years after such funds have been deposited with the City, upon written request from the owner, or its successors or assigns, the City shall refund the funds, with accrued interest." ATTACHMENTS 1. Letter from applicant 2. Mobility Plan map 3. Site location map 4. Plat 5. P & Z minutes Prepared By: David Salmon, Assistant Director Engineering Respectfully submitted: Charles Fiedler Director, Engineering Page 3 AN, DMARK, SURVEYORS, NC. 4238 1-35 North Denton, Texas 76207-3408 (940) 382-4016 Fax (940) 387-9784 landmarksv@aol.com April 29, 2002 City of Denton, Engineering Department David Salmon, P.E. 111 West McKinney St. Denton, TX 76201 Re: Liverpool Addition variance request Dear Mr. Salmon, This is to further specify what we have asked for in terms of the two variance requests that have already been submitted for the Liverpool Addition: 1)The requests were submitted for perimeter paving, sidewalk and storm drain improvements along the west side of South Bonnie Brae, just north of Roselawn. 2) I understand that engineering has a position that Mr Barber (the owner) could ask for a partial variance that would allow him to pay $7700 in lieu of actually making these improvements, and engineering would support such a request. 3) I would like to hereby challenge that position, and ask for a full variance for the following reasons; a. South Bonnie Brae is currently paved, with roadside ditches, all the way from Interstate 35-E to a little south of Roselawn, and this property falls in that area. b. This constitutes about 9,000 feet of country road, in reasonably good shape, but not particularly with a straight alignment. c. I submit to you that it would be impossible to design a 400 foot section of this road, east side only, without designing the entire 9,000 feet, and even if Mr. Barber were willing to design the entire 9,000 feet, and build his portion only, the chances are slim to none that it would fall in such a way that the existing drainage from the roadside ditches would actually drain into the new curb and gutter. In fact, in reality, if the 400 foot section were built, it would actually create a drainage problem in that the curb and gutter would more than likely be above and west of the existing ditch. d. It is our feeling, particularly with the new zoning in effect, and given the already existing Solar Way Addition to the north, and there being a substantial portion in flood zone north of Solar Way and west of Laurel Addition that is undevelopable, that very little development will occur in this area, and unless the City has a bend election for specific road improvements in this area, the road construction will never take place. e. Mr. Barber intends to build one single family residence on a 5 acre tract of land, and it should not be his responsibility to partake in development of 9,000 feet of roadway unless all property owners on each side are assessed equally. ROSEL ~ ~ VICINITY MAP NOI£¥DO'I £Dii f O'SeI I'ZII' V '~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 PROCEEDINGS COMMISSIONEa mSH~C: oood aftea'noon, ladies and g~ntlemen. It's my pleasure to open the regularly scheduied meeting of the Planning and Zoning Commission. This is May the 22nd, the year 2002. If you would rise at this time and join me for the Pledge of Alleomce and then the Pledge to the Texas Flag. (Thea~pon, the Pledges of Allegianc~ vn~ recited.) COMMI$StONF_.~ RISHEL: Thallk yOll ¥~g'y much. Pleas~ be seated. Tho next item on our Agnmda is the approval of the minu~es from the April 24th, 2002 meeting. Are th~ changes or a motion regarding those minutes? COMMISSIONER MULROY: MOVe approval. COIvlMISSIONER APPLE: second. COMM~SS~O~ P. iStmL: tt'S be~ moved by Commissioner IViulroy and seconded by Commissioner Apple. Any further oommems? Seeing no further comments, please volu. Thank you, Conunissior~s. Motion carri~ ?-0. Th~ next itum on the Agunda is an itum for individual consideration. It's It~n No. 3. And Iium No. 3 has a part A and a part B. Part A deals with perimeter paving and part B deals with sidewalks. And I b~hev~ our staff member will pr~seat. Page 2 M~. VOKOt~: c_~od evening, Mr. Chairman, 2 ladies and gentkaxam of th~ Commission~. Bud Vokonn, 3 City of Denton Eng/nee~ng. You have b~or~ you a request 4 by th~ Liverpool Addition, a 5.1 acm property, 5 resid~atial, located on the westerly side of Bonnie Brae 6 between Roselawn, located here, and Corbin. They ave 7 asking for a full variance rehtive to paving requirements 8 and ~ paving. 9 Bonnie Brae is on the City's Mobility Plan, ,10 shown here with the property being he~, as a collector str~. The staff, when tl~ docum~ts fa, st cam~ in, saw 12 tl~ larg~ amount of fronlag~ on this prol~rW and 13 r~omm~ckxl that the owners apply for a partial variance. i14 A partial variance is something that th~ City asks the 15 dovdoper to provide in situations wlx~ it would appear 16 that the property isn't able to provide the full paving 17 that's required by City ordinance. Staff typically 18 t~xluires $5,400.00 in payment. This exonerates them from 19 any futur~ d~sign and/or paving requi~ments. As earlier 20 shown, Bonnie Brae is on th~ Mobility Plan and shown as a 21 colkx;tor th~ City doe~ plan on building at some time in 22 the future. If for some reason th~ City should not build 23 it or b~ considering building it within ten years, this 24 mon~'y is plaoed in an e~crow wlmre interest is drawn and 25 at the end of ten years it's given back to the property Page owner with the intc~.~. Any questions? 2 COMMISSIONER mSHEL: Commissioners, any 3 questions? Thank you, Mr. Vokoun. 4 COMMISSIONER POWELL: YeS, I do, but I was 5 late on my button. 6 COMMISSIONER msm~L: Commissioner Powell. 7 COMMISSIONER POWELL: My button broke 8 again. You said something tonight I never heard before, 9 sir. You said that within ten years if the City had not 10 built or planned to build, or something similar to that. 11 I've never heard that. It's always been ten years if they 12 haven't done. Now, which is correct? Somebody tell me. 13 MR. VOgOtm: It's typically, if it's within i4 the design, if we're in the process of designing it and 15 it's within a short time of being able to construct it. 16 COMMISSIONER POWELL: Ye, ah, but what do~$ 17 the ordinance say? Help me out here, somebody. 18 COMMISSIONER RISHEL: I$ there a 8t~ff 19 member that could help us with this germane question? 2o COMMmSIONER POWELI~ It makes a big 21 difference. I mean, the City could say they're planning 22 something and it may not be for - 23 COMMISSIONER RISHEL: Mr. Salmoll was going 24 to address that for you. That's a good question. ,25 COMMISSIONER POWELL: - foul' or five years 2 3 4 5 6 7 8 9 I0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 4 or somahing. COMMISSIONBR RISHEL: I heard that same MR. SALMON: I b~lie%'e what the ordinance says is that if tho City is not -- I belier© that if tho City has it in tl~ Capital Improvements Program and is in the process of -- and I'm paraphrasing because I don't have the ordinance with m~. But if th~ project is part of the City's Capital Improveammts Program and w~ have made efforts toward, for instance, have started preparing the construction drawings or have made some sort of action toward building the street, then we would consider that planning to build the street. COMMISSIONF_.R POWELL: Thank you. COMMISSIONER mSm~L: sounds preay vague, doesn't iO COMMissiONER ~OWELt~ YeS, it does. It bothea's mc because I know five-year action plans, a lot of them, a lot of things that ar~ on a five-year action plan are never done, let alone within five years. They're just never done and then something ©ls~ takes it place and you go on down tho lin~. And that's -- I never heard that begoro and it just makes it a whole lot different than what I'm used to. Thank you much for your tim~. COMMISSIONER RISHBL: Thank you, PLANNING AND ZONING COMMISSION MAY 22, 2002 Page - Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Page 5 Commissioner. C, offmfissimm- Keith, a question of staff?. is the plamlcd improvements for Bonnie Brig, particularly that area? MR. VOKOUN: That will be a four-lan~ undivided roadway. COMMISSIONER KEITH: Wh~? MIL VOKOUN: we have no plans for it right now in the Capital Improvengnt Program. That's why we have a ten-year deposit on this money. COMMISSIONER KEITH: okay. Is there -- I don't foresee any other developments going on beyond that other creek -- in the road any th'nc quick. There's -- currently there's no -- are there any of thc other dcv¢lopors up in the~ that currmtly have that type of money on deposit with the City? MR. VOKOUN: NO, sir. COMMmSlO~ KV. ITH: SO he'd be the first and only~ MIL VOKOLrI~: That's what I'm aware of. COMMISSIONER RISHEL: COllnmi~ioners, any would ~ ~ to proson~ MIC Y~rSAN: My nar~ is Jerald Ycason. I Page 6 own Landmark Surveyors. I'm Ihe person who's prepared the plat for Mr. Barber. Mr. Barber, the owns, is here to answer questions. Am I coming throush? cxnsmsimst~ mmmu ff you'd pull that to you a littl~ bit, that would probably help us sm.~: Let's s~if I can kind ofggt this wbcr~ it will - I mado this litt~ cxhfoit off of question, that's a five-acre u'act of land down on South Bonni~ Bra~ right ha~. Tbe~'s about 9,000 fe~t of 2 3 4 5 tho comer of whatever thc name of that strt~ is that goes into Laurel Addition. There's this Solar Way Addition that has houses all around it so it's rtally d~vclopod all thc way down to Corbin Road. ~ are thr~ rcsid~ces on the ~ast side. Thorn's a rusidenc~ and a barn on the east side across from Mr. Barber's 6 7 propm'y. ~ is a throe-acre tract imm~ately south 8 of Mr. Barber that Jack Parks, who owns the resideaco hem 9 and a business called Frontier Motors purchaseat this th~ 10 acres for pasture, which leaves a four-acre tract hea~, _11 some acr~ag~ tgro which Mr. Barber tells me somebody has 12 recently bought and put a w~ll on this protmrty which is a 13 protty good indication that h~ doesn't inamd to d~elop 14 or turn it into a subdivision. I don't think be would 15 have sprat tho mon~ on a well if he was going to hook 16 into City watex. 18 point is that if Mr. Barber v~ to pay, be~vc~ th~ roads 19 and sidewalk, a sum total of $7,700.00, he would be, if 20 not the only, one of v~y fuw lX:ople along this 9,000 foot I strotch of road who would ~v~r put up any money for road 22 dcvelopmonts. So that's probably tbe largest reason that 23 wo'm asking for a full variance. 24 I also have a photograph of th~ condition 25 of {be road. This is a photograph standing at Corbin Road Page PLANNING AND ZONING COMMISSION MAY 2 3 4 5 6 7 8 9 10 I1 somo~ and goes south. TI~ far md of that would be Rosclawn. It's an existing ~untry-typo pavod road with bar ditches on the side. In my request for a variance, I pointed out that actual road construction, if Mr. Barber wcrc able to bear the expense of doing the actual road construction, it would be highly unlikely that the City would even allow that without a design of thc full 9,000 feet worth of road to soe how the ali~mont might even Itt in, which is why I understand thc City would offer us the opportunity to put up $7,700.00 and have the money in Bonni~ Brig from 1-35 down to Rosclawn. Right now tl~m's a State mainamance yard lgrc. Tbem's Liberty Christian School hca. The~'s ~ North Texas Golf Couts~ There's a rcsldm~ a fairly nmv rcsklcac~ here. In last two to ttm~ years, this home was built and I've bern tmable to fred tl~ owner of it. I know we did some surv~ng. We didn't plat fl~ pmpexty but Mr. Barber spok~ with tt~ owner of this hous~ in tl~o last f~v w~ks and brought up that this issu~ can~ up and it was waived in his casc to put up any money for road improvemems. There is an existing residenc~ and a barn hcr~. Ttm'~'s floodplain hc~ which makes this highly unlikely to be Thc~'s a brand now residmc~ right he~ on 12 13 14 15 16 17 18 19 20 21 22 23 24 25 escrow against thc event that the City cver builds it. However, I find it highly unlikely that anybody else would ever really be putting up the money besides Mr. Barber. Ho is he~ to answor questions and I'm certainly willing to answer any questions you have. COMMISSIONER RISHEL: com.miggion~r Powell. COMMISSIONER POWELL: Ygah. Conflict between what you said, sir, and what I sec in tho backup. You said $7,700.00 and I sec $5,400.00 hem. MR. YENSAN: I believe $5,400.00 is for the road improvements and the next item for consideration is an eight-foot sidewalk which is the balance. COMMISSIONER RISHEL: I think he's taking 22, 2002 Page 5 -Paee 8 Page 8 looking south. Mr. Barber's property starts in this area 6 we'd take th~ as motions separately. Did Mr. Barber wish 7 to pmsmt? 8 ~ YEI,,'SA~: Anything you want to say, 9 ~andy? 10 MR. BAR~Im~ That's it. 11 COMM~SS~OI~it lUSH~L: obviously a wise man. 12 This is an item for individual consideration. Any further 13 questions, Commissioners, of Mr. Barber or Mr. Ycnsan? 14 Seeing no further questions, Commission, any further 15 questions of staff? Commissioner Holt. 16 COMMmslom~t HOLT: YeS. DO we know if !17 there hss been any money put up by anyone else along 18 Bonnie Brae? 19 Mit. VOKOUN: NOt that I'm aware of. ~0 COMMISSIONER HOLT: And I know that on 21 Rosclawn not too long a~o someone put up some money, 22 COMMISSIONER RISHEL: Right, 23 COMMISSIONFAt HOLT: BUt nothing along 24 Bonnie Brae? 25 COMMissIONER Pasm~ ~t was kind of toward Page 9 Page 1 obviously, if anybody knows that ar~a knows that's not th~ 2 case because thc Parks own a substantial piece of propa~y 3 ther~ and the next pk:cc would be the Boy Scout property 4 that's on the south side of Roselawn, and then Roselawn 5 which would abut thc railroad and whatever else. And 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 Page 10 thc other end of Roselawn. MR. SALMON: Actually, several years ago when Liberty Christian School expanded and platted their property, th~ did put mon6~, up for the improvement of Bonnie Brae, and the City actually did use that money and repaved Bonnie Brae Sm:et all the way, I think I want to say, from Willowwood to, you know, the Airport Road inters~tion. So that work has already been done. It wasn't built with curb and gutter but we did put a full depth asphalt section there. But historically that's the only money that's ever been put up for Bonnie Brae that I'm aware of. COMMISSIONt/R HOLT: Thank you. COMMISSIONER RISHEL: Mr. Salmon, the map that we have that was apparmtly a blow up, what we've called Attachment 2, is that something that your staff put together for us? MR. SALMON: YeS. COMMISSIONER RISHBL: okay. As I look at that, I don't want our Commissioners, if they haven't had a chance to look at that piece of property, be conf,. Because what's indicated on this map that's submitted by the City is it shows Rosolawn going -- that abuts Roselawn Strut, Boulevard, whatever, going clear to the cormr or clear to the extension that goes on south from that. And, 6 7 8 9 10 11 12 13 14 15 16 17 18 19 :20 21 22 23 24 25 tlx~, of course, the Parks own that piece above Roselawn also. I think the Chamberlins own thc other comer in them. So a lot of that is futur~ resid~utial or other things as opposed to strictly Rosdawn whac I doubt if too many of those l~ople are going to be walking around or ~ to walk around over thcs. So I just make that as a point of clarification. Commissioner Pow~ll. COMMISSIONF-,R lOWELL: MI'. Cha~, I would movc to reconummd to City Council a full variance on Item 3. 3B. COMMISSIONER KBITH: I s~ond. COMML~SIONERRISHEL: clarification, 3A. MR. REICl-mART: we just need 3A and then COMMISSIONER POWELL: I apologize. 3A, I'm sorry. COMMISSIONER RISHEL: R'S ~ moved by Commissioner Power and seconded by Commissioner K~th. Any further questions or comments at this ting? Page 1 Commissioner Mulroy. 2 COMMmSlONER MULROY: Yes, I have a 3 question of Mr. Rcichhart. Larry, tho zoning history of 4 this loop going across cast to west on Roselawn, looping 5 up north on Bonnie Brae, we had some discussion in the 6 mapping changes. And I believe we changed that to the 7 largest category or thc least dense cate8o~ possible. 8 Could you refresh our manorics? 9 MR. I~ICHHAR?: Thc Planning and Zoning 10 Commission did recommend that that ama be redesignat~l to 11 the Rural designation and then get thc RD-S zoning 12 categnry. City Council did not do that in thc f'mal 13 mapping. It's still Neighborhood Centers but it is an 14 NR-2, you know, very low dense zoning classification. 15 COMMISSIONER MULROY: okay. Thallk you. 16 COMMISSIONER I~SHEL: i'd like to make thc 17 comment, I know when I first came on this Commission, I 18 always kind of scratclxxl my bead in what I thought was 19 wondcrf-ul logic that sidewalks in areas where people 20 wt:rca't going to bc walking wasn't very logical. It 21 didn't take mo very long to sec that there was development 22 that was so fast in our arca ttmt it surpriscd me in some 23 areas that -- in fact, some areas that I voted against 24 encouraging sidewalks and mobility and other forms of 25 transportation. And I cite very specifically a pie~ of PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 9 - Page 1 P~ 1 property probably on tl~ corn~ of Countr~ Club Road ~d 3 con~ m ~elop ~d it was s~ I vo~ ~a~t. 7 ~t s~ ~d, ~ is q~ a bit of &wbp~t going 8 on and I'm suppo~ve of s~ff and ~ ~ffo~ ~t ~'w 9 ma~ ~ ~ ~ put ~i~s in~ sus~sion and acq~ 11 a p~ofo~p~. 12 ~d so I wo~d vo~ ~nst ~s as [14 v~ance on ~is pro~ ae~ ~ ~ i~ ~t ~ 15 ~d put ~ a~y ~d ~ not ~ ~ &v~lo~ at 20 an ~crow accost by Li~ C~sfi~ Se~I w~ us~ f~ 21 ~avi~, ~aci~ Bon~ Brae; is ~t co~t? 23 p~ m ~crow. ~ ~ply p~d f~ ~me pavi~ 24 ~prov~ and o~ s~ ~t ~& ~. At ~ 25 ~e it was done ~ a comp~ly s~a~ or a Page 2 ~'t ~ve ~s p~ic~ or~n~ ~ p~ce ~t allows 3 for plaint of mo~ in ~cmw. 4 CO~l~ION~ ~HH: O~y. But ~at was 5 a~y a b~c~ mad pH~ ~ ~prov~ ~ ~&, 8 ~ ~ ~t Mp~i~, Bo~ B~ and ~t ~fion was 9 about ~ inch and a ha~ or ~o inc~ of asp~t ov~ 13 five ~ six inch ~ of a~t ~ch is ~ no~ 14 ~c~s for a Ci~ s~. 16 co~ in and m~g ~ ~prov~t ~ of ~ roadway, 17 no c~bing, no ~, no ~aina~ ~s put in? 19 mo~ ~t ~ ~w us ~d ~& it ~o as f~ as w~ co~d. 20 COMMI~tO~ ~: o~y. So in o~ 22 impmv~g an ~dy ~is~ r~ to ~ it fix~, 23 Li~ ~sfi~ c~ in ~d paid ~ ~ve it ~, 24 co~t? 4 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page condition of thek plat approval. 2 COMMISS[ONF. R KErrH: well, I just r~call, I 3 rm~nbcr wlien tl~ principal of that school would appear bofom tl~ City Council and was pleading with the~ to come in and do s~g about that road. And it's intt~r~ to learn to ~ it done, tb~y had to wind up paying for it for a road that should have already been tak~ care of by the City. Thank you very much, Mr. Salmon. In response to this project, lxfing one of th~ longest residents of D~mton on tim Commission, I remembex as a boy I used to hike down that road. It hasn't really changed much in 40 years. And as far as density growth does down the~, p~rhaps, but most of tim density growth is occurring in soutl~ast I~nton because that's in tbe direction of where the greatex employm~t opportunities ar~ at. This area may d~ve, lop as D~ton slowly ~olvos into allowing industry in. But I think in tl~ n~ar futura, oven in the ten years, I think it's going to re~rmin a country-typo pavexi road and I encoura~ the granting of tl~ full variance. Thank you. COMMISSIONER RISHEL: commis$iollcg Mulroy. COMML~SIONI~ MULROY: YOS. With all rospoot to th~ numbers and th~ formulas and what staff normally trios to accomplish in most casos like this, Page 1 usually it's very equitable. In this particular case, I'm 2 going to voto to stick with tho logic and th~ thinking of 3 tl~ Planning and Zoning Commission. Scvexal months ago 4 when we had a consensus this was going to be a rural ama 5 and w~ advocated the least dense zoning. And I think our 6 discussion went along thc lines until some point way down 7 tho road ia tho futura thcr~ is some mas~a' planning and 8 son~ long term tt~ught given, that we va~ going to go 9 with the rural nature. So I'll support the motion as 10 stalexi. Thank you. 11 COMMmSIONER ~sm~L: commissioner Apple. 12 COMMISSIOneR Ael'LE: SO that I don't tak~ 13 up tl~ Commission's time, I'll just say that I ooncur with 14 Commissioner Mulroy's assossmont and I too will be voting 15 for tl~ motion. 16 COMMI,~iONER ~IS~mL: commissioner Roy. 17 COMMISSlO~,W_a ROY: we have dealt with the~ 18 kind of issuos s~veral ~ including OhO in tl~ g~cral 19 vicinity, and I think the partial variance approach is 20 fair and I'll bo voting against tbe motion because it's 21 not consistent with our past practice and I just think 22 it's a good g~neral practic~ on tho partial variance. 23 Thank you. 24 COMMISSIONER RmH~L: Ke~p in mind that for 25 some mason this failed, them would still b~ an 22, 2002 Pa~e 13 - Paso 5 6 7 9 10 11 12 14 15 16 17 18 19 2O 21 22 24 25 1 2 4 5 6 7 8 10 1I 12 13 14 16 17 18 19 20 21 22 23 24 Page 17 opportunity for an additional motion. Any further co~ta~nts? Seeing no ~ comments, it's been moved and seconded. Please, vote. Motion carries 5-2. (~mtcElts msmm At~D ~OY VOT~O n~ OPPO61TION. ) Tho next part of this same variance is Item No. 313. Is there a motion? Discussion? COMMISSIONER POWELL: ! will move to grant n full variance - I will move -- excuse m~, if I might start over. COlVfldl.~lONES RISI-II~L: commissionc~, it loolaxl li~ s~ff wanted to pr~cnt. co~ttssmmm POW~LL: t apologize. You said motion and I took your word for it. ~tomm mstmL: tt may b~ my fault. I didn't know whct~ thc~ was still additional presentation that we'd like to mnlre Okay. I think we've had thc discussion or had the presentation so please proceed. COMMISSIONER POWELL¢ ~ would move to recommend to City Council n full variance on 313. COM~IONER APPLE: second. CO~flvflSS~OSEaiUStmt,: tt's been moved by 1 2 3 6 7 8 9 10 11 12 13 1.4 15 16 17 18 19 20 21 22 23 Commissioner Powell and seconded by Commissioner Apple. Any furflzr discussion? And I'll chin~ in there with my Pag~ 18 same ~ither logic or illogic. As I had ngntion~l before, I'd like to see us developing om' Mobih'ty Plan the best we possibly can with regard to alternative ~ion and things are happening so rapidly wi~i~ our community that I would like to sec a partial variance on this, but thc full varinnc~ I think is beyond where we nccd to be at this time. Any further comments? Stein8 no f-un~ comments, pleas~ vote. Motion canics 5-2. (COMMXSSIO~qERS PdStmL ArCO ROY VOTED ~ OPPOSITION.) 24 25 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 P~e Pa~ 2( PLA~~-AND ZONING COMMISSION MAY 22, 2002 Page 17 - Pa~e 2( Agenda 02-021 06/18/02 #33 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: June 18, 2002 Engineering David Hill, 349 - 8314 SUBJECT Consider approval of an exaction variance of Section 35.20.2(L.3.a.) of the Code of Ordinances concerning perimeter paving for the Liverpool Addition, being a 5.1 acre single family residential parcel located in a Neighborhood Residential 2 (NR-2) zoning district and on the westerly side of Bonnie Brae approximately 500 feet south of Corbin Road. The Planning and Zoning Commission recommends approval of a full variance (5-2) (V02-0007) BACKGROUND Mr. Jerald Yensan RPLS (representing Mr. Barber, the developer/owner of this property- the Liverpool Addition) has applied for a full variance of Section 35.20.2(L.2.) (concerning perimeter paving) of the Code of Ordinances regarding relief from all costs associated with pavement improvements to Bonnie Brae. The subject sections of the ordinance require construction improvements along the frontage of the development with city standard pavement with curb and gutter. Mr. Yensan's request for the full variance is based on the fact that: 1. South Bonnie Brae is currently paved, with roadside ditches, all the way from IH35E to a little south of Roselawn and constitutes about 9,000ft of country road, in reasonably good shape but, not particularly with a straight alignment, 2. That it would be impossible to design a 400ft section of this road without designing the entire 9,000ft and even if Mr. Barber designed the entire length and built his portion, the chances are slim to none that it would fall in such a way that the existing drainage from the roadside ditches would actually drain into the new curb and gutter. In fact, in reality, if the 400ft section were built, it would actually create a drainage problem in that the curb and gutter would more than likely be above and west of the existing ditch. 3. That with the new zoning in effect and given the already existing Solar Way Addition to the north, and there being a substantial portion in the flood zone north of Solar Way and west of Laurel Addition, that is undevelopable, that very little development will occur in the area, and unless the City has a bond election in for specific road improvements in this area, the road construction will never take place. 4. Mr. Barber intends to build one single family residence on a 5 acre tract of land, and it should not be his responsibility to partake in the development of 9,000ft of roadway unless all property owners on each side are assessed equally. Mr. Yensan contends that because of the nature of the existing development along Bonnie Brea, that there will be few other properties that will ever participate in the cost sharing of the construction of Bonnie Brea and therefore his client is being inequitably and unduly burdened even with a partial variance. City staff's response concerning Mr. Yensan's statements: 1. Staff essentially agrees with this assessment. Page 1 2. Staff estimated the costs for full construction of pavement with curb and gutter along Mr. Barber's frontage at approximately $34,350.00. Therefore, when the applicant submitted documents to the City for approval, staff recommended that the applicant apply for and staff would support a partial variance in the amount of $5,400.00. City staff has determined that this is the average cost, per residential lot, for pavement with curb and gutter. Staff recommended this understanding that full construction costs for improvements were not reasonable because of the type of development being proposed (a single family residence) and the length (approximately 458ft) of frontage this property has on Bonnie Brae, a collector street. The City's approval of a partial variance and Mr. Barber's payment of the $5,400.00 would relieve Mr. Barber of any required future construction and/or design requirements for Bonnie Brea unless this property is rezoned and replatted. 3. Bonnie Brae is on the City's mobility plan as a collector street and will some day be improved in this area to meet the City's standards for a residential avenue collector street, through participation from properties fronting Bonnie Brea as they develop, as well as City participation in a CIP for specific sections (such as this, where partial payments are provided and the City provides the remainder of the costs). 4. The City fully expects all of the undeveloped property along the frontage of Bonnie Brea to eventually be developed and all of that property will be required to participate in the costs of constructing Bonnie Brea. In those instances were property is already developed or not developable (currently are and are to remain as agriculture/flood plain), the City will participate in the costs of improvements along those property's frontage. The City Council may approve this exaction variance if the following criterion is met: b) Criteria for variances from development exactions. Where the commission finds that the imposition of any development exaction pursuant to these regulations exceeds any reasonable benefit to the property owner or is so excessive as to constitute confiscation of the tract to be platted, it may recommend approval of variances to waive such exaction's, so as to prevent such excess, to the City Council. Waiver of developmental exactions shall be approved by the City Council. The price the applicant paid for the parcel, or the cost of the proposed building improvements is not a factor in determining reasonable costs. The City Council must decide if the costs associated with the public improvements required by city regulations are reasonable and consistent for the type of development proposed and are proportional to the demand for services created by the development. OPTIONS 1. Approve full variance 2. Approve full variance with conditions 3. Approve a partial variance 4. Deny variance RECOMMENDATION Staff recommended approval of a partial variance to the Planning & Zoning Commission. The Planning & Zoning Commission voted 5-2 to recommend approval of a full variance on May 22, 2002. Page 2 PRIOR ACTION/REVIEW None FISCAL INFORMATION City staff estimates typical installation of 25ft wide pavemeN with curb and gutter at $75/foot. The required pavement improvement, for approximately 458ft of frontage along Bonnie Brae, would cost an estimated $34,350.00. The City understands the cost to construct pavement with curb and gutter for a collector street to City standards is prohibitive in the developmeN of only one resideNial lot with a froNage of 458 feet. in the past, the City has allowed for a per lot average cost (of a typical lot in a resideNial area in DeNon) paymeN in lieu of the costs that are associated with the full improvemeNs. City staff has determined that the average cost per resideNial lot for both the pavemeN improvemeNs as being $5,400. In the past staff has recommended and the City Council has graNed partial variances for similar developmeNs, based on the cost of such improvemeNs for an average sized lot in the City of DeNon. The City maiNains any such money received for these costs in an iNerest bearing accouN in accordance with Ordinance 2001-305, which was added to the City Code, Section 34-127 "PaymeNs in Lieu of Construction Policies and Procedures". This ordinance includes (d) which, in part, states: "in the even the City has not authorized the preparation of plans and specifications for the construction of public improvemeNs for which funds have been deposited within ten years after such funds have been deposited with the City, upon written request from the owner, or its successors or assigns, the City shall refund the funds, with accrued iNerest." ATTACHMENTS 1. Letter from applicant 2. Mobility Plan map 3. Site location map 4. Plat 5. P & Z minutes Prepared By: David Salmon, Assistant Director Engineering Respectfully submitted: Charles Fiedler Director, Engineering Page 3 AN, DMARK, SURVEYORS, NC. 4238 1-35 North Denton, Texas 76207-3408 (940) 382-4016 Fax (940) 387-9784 landmarksv@aol.com April 29, 2002 City of Denton, Engineering Department David Salmon, P.E. 111 West McKinney St. Denton, TX 76201 Re: Liverpool Addition variance request Dear Mr. Salmon, This is to further specify what we have asked for in terms of the two variance requests that have already been submitted for the Liverpool Addition: 1)The requests were submitted for perimeter paving, sidewalk and storm drain improvements along the west side of South Bonnie Brae, just north of Roselawn. 2) I understand that engineering has a position that Mr Barber (the owner) could ask for a partial variance that would allow him to pay $7700 in lieu of actually making these improvements, and engineering would support such a request. 3) I would like to hereby challenge that position, and ask for a full variance for the following reasons; a. South Bonnie Brae is currently paved, with roadside ditches, all the way from Interstate 35-E to a little south of Roselawn, and this property falls in that area. b. This constitutes about 9,000 feet of country road, in reasonably good shape, but not particularly with a straight alignment. c. I submit to you that it would be impossible to design a 400 foot section of this road, east side only, without designing the entire 9,000 feet, and even if Mr. Barber were willing to design the entire 9,000 feet, and build his portion only, the chances are slim to none that it would fall in such a way that the existing drainage from the roadside ditches would actually drain into the new curb and gutter. In fact, in reality, if the 400 foot section were built, it would actually create a drainage problem in that the curb and gutter would more than likely be above and west of the existing ditch. d. It is our feeling, particularly with the new zoning in effect, and given the already existing Solar Way Addition to the north, and there being a substantial portion in flood zone north of Solar Way and west of Laurel Addition that is undevelopable, that very little development will occur in this area, and unless the City has a bend election for specific road improvements in this area, the road construction will never take place. e. Mr. Barber intends to build one single family residence on a 5 acre tract of land, and it should not be his responsibility to partake in development of 9,000 feet of roadway unless all property owners on each side are assessed equally. ROSEL ~ ~ VICINITY MAP NOI£¥DO'I £Dii f O'SeI I'ZII' V '~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 PROCEEDINGS COMMISSIONEa mSH~C: oood aftea'noon, ladies and g~ntlemen. It's my pleasure to open the regularly scheduied meeting of the Planning and Zoning Commission. This is May the 22nd, the year 2002. If you would rise at this time and join me for the Pledge of Alleomce and then the Pledge to the Texas Flag. (Thea~pon, the Pledges of Allegianc~ vn~ recited.) COMMI$StONF_.~ RISHEL: Thallk yOll ¥~g'y much. Pleas~ be seated. Tho next item on our Agnmda is the approval of the minu~es from the April 24th, 2002 meeting. Are th~ changes or a motion regarding those minutes? COMMISSIONER MULROY: MOVe approval. COIvlMISSIONER APPLE: second. COMM~SS~O~ P. iStmL: tt'S be~ moved by Commissioner IViulroy and seconded by Commissioner Apple. Any further oommems? Seeing no further comments, please volu. Thank you, Conunissior~s. Motion carri~ ?-0. Th~ next itum on the Agunda is an itum for individual consideration. It's It~n No. 3. And Iium No. 3 has a part A and a part B. Part A deals with perimeter paving and part B deals with sidewalks. And I b~hev~ our staff member will pr~seat. Page 2 M~. VOKOt~: c_~od evening, Mr. Chairman, 2 ladies and gentkaxam of th~ Commission~. Bud Vokonn, 3 City of Denton Eng/nee~ng. You have b~or~ you a request 4 by th~ Liverpool Addition, a 5.1 acm property, 5 resid~atial, located on the westerly side of Bonnie Brae 6 between Roselawn, located here, and Corbin. They ave 7 asking for a full variance rehtive to paving requirements 8 and ~ paving. 9 Bonnie Brae is on the City's Mobility Plan, ,10 shown here with the property being he~, as a collector str~. The staff, when tl~ docum~ts fa, st cam~ in, saw 12 tl~ larg~ amount of fronlag~ on this prol~rW and 13 r~omm~ckxl that the owners apply for a partial variance. i14 A partial variance is something that th~ City asks the 15 dovdoper to provide in situations wlx~ it would appear 16 that the property isn't able to provide the full paving 17 that's required by City ordinance. Staff typically 18 t~xluires $5,400.00 in payment. This exonerates them from 19 any futur~ d~sign and/or paving requi~ments. As earlier 20 shown, Bonnie Brae is on th~ Mobility Plan and shown as a 21 colkx;tor th~ City doe~ plan on building at some time in 22 the future. If for some reason th~ City should not build 23 it or b~ considering building it within ten years, this 24 mon~'y is plaoed in an e~crow wlmre interest is drawn and 25 at the end of ten years it's given back to the property Page owner with the intc~.~. Any questions? 2 COMMISSIONER mSHEL: Commissioners, any 3 questions? Thank you, Mr. Vokoun. 4 COMMISSIONER POWELL: YeS, I do, but I was 5 late on my button. 6 COMMISSIONER msm~L: Commissioner Powell. 7 COMMISSIONER POWELL: My button broke 8 again. You said something tonight I never heard before, 9 sir. You said that within ten years if the City had not 10 built or planned to build, or something similar to that. 11 I've never heard that. It's always been ten years if they 12 haven't done. Now, which is correct? Somebody tell me. 13 MR. VOgOtm: It's typically, if it's within i4 the design, if we're in the process of designing it and 15 it's within a short time of being able to construct it. 16 COMMISSIONER POWELL: Ye, ah, but what do~$ 17 the ordinance say? Help me out here, somebody. 18 COMMISSIONER RISHEL: I$ there a 8t~ff 19 member that could help us with this germane question? 2o COMMmSIONER POWELI~ It makes a big 21 difference. I mean, the City could say they're planning 22 something and it may not be for - 23 COMMISSIONER RISHEL: Mr. Salmoll was going 24 to address that for you. That's a good question. ,25 COMMISSIONER POWELL: - foul' or five years 2 3 4 5 6 7 8 9 I0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 4 or somahing. COMMISSIONBR RISHEL: I heard that same MR. SALMON: I b~lie%'e what the ordinance says is that if tho City is not -- I belier© that if tho City has it in tl~ Capital Improvements Program and is in the process of -- and I'm paraphrasing because I don't have the ordinance with m~. But if th~ project is part of the City's Capital Improveammts Program and w~ have made efforts toward, for instance, have started preparing the construction drawings or have made some sort of action toward building the street, then we would consider that planning to build the street. COMMISSIONF_.R POWELL: Thank you. COMMISSIONER mSm~L: sounds preay vague, doesn't iO COMMissiONER ~OWELt~ YeS, it does. It bothea's mc because I know five-year action plans, a lot of them, a lot of things that ar~ on a five-year action plan are never done, let alone within five years. They're just never done and then something ©ls~ takes it place and you go on down tho lin~. And that's -- I never heard that begoro and it just makes it a whole lot different than what I'm used to. Thank you much for your tim~. COMMISSIONER RISHBL: Thank you, PLANNING AND ZONING COMMISSION MAY 22, 2002 Page - Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Page 5 Commissioner. C, offmfissimm- Keith, a question of staff?. is the plamlcd improvements for Bonnie Brig, particularly that area? MR. VOKOUN: That will be a four-lan~ undivided roadway. COMMISSIONER KEITH: Wh~? MIL VOKOUN: we have no plans for it right now in the Capital Improvengnt Program. That's why we have a ten-year deposit on this money. COMMISSIONER KEITH: okay. Is there -- I don't foresee any other developments going on beyond that other creek -- in the road any th'nc quick. There's -- currently there's no -- are there any of thc other dcv¢lopors up in the~ that currmtly have that type of money on deposit with the City? MR. VOKOUN: NO, sir. COMMmSlO~ KV. ITH: SO he'd be the first and only~ MIL VOKOLrI~: That's what I'm aware of. COMMISSIONER RISHEL: COllnmi~ioners, any would ~ ~ to proson~ MIC Y~rSAN: My nar~ is Jerald Ycason. I Page 6 own Landmark Surveyors. I'm Ihe person who's prepared the plat for Mr. Barber. Mr. Barber, the owns, is here to answer questions. Am I coming throush? cxnsmsimst~ mmmu ff you'd pull that to you a littl~ bit, that would probably help us sm.~: Let's s~if I can kind ofggt this wbcr~ it will - I mado this litt~ cxhfoit off of question, that's a five-acre u'act of land down on South Bonni~ Bra~ right ha~. Tbe~'s about 9,000 fe~t of 2 3 4 5 tho comer of whatever thc name of that strt~ is that goes into Laurel Addition. There's this Solar Way Addition that has houses all around it so it's rtally d~vclopod all thc way down to Corbin Road. ~ are thr~ rcsid~ces on the ~ast side. Thorn's a rusidenc~ and a barn on the east side across from Mr. Barber's 6 7 propm'y. ~ is a throe-acre tract imm~ately south 8 of Mr. Barber that Jack Parks, who owns the resideaco hem 9 and a business called Frontier Motors purchaseat this th~ 10 acres for pasture, which leaves a four-acre tract hea~, _11 some acr~ag~ tgro which Mr. Barber tells me somebody has 12 recently bought and put a w~ll on this protmrty which is a 13 protty good indication that h~ doesn't inamd to d~elop 14 or turn it into a subdivision. I don't think be would 15 have sprat tho mon~ on a well if he was going to hook 16 into City watex. 18 point is that if Mr. Barber v~ to pay, be~vc~ th~ roads 19 and sidewalk, a sum total of $7,700.00, he would be, if 20 not the only, one of v~y fuw lX:ople along this 9,000 foot I strotch of road who would ~v~r put up any money for road 22 dcvelopmonts. So that's probably tbe largest reason that 23 wo'm asking for a full variance. 24 I also have a photograph of th~ condition 25 of {be road. This is a photograph standing at Corbin Road Page PLANNING AND ZONING COMMISSION MAY 2 3 4 5 6 7 8 9 10 I1 somo~ and goes south. TI~ far md of that would be Rosclawn. It's an existing ~untry-typo pavod road with bar ditches on the side. In my request for a variance, I pointed out that actual road construction, if Mr. Barber wcrc able to bear the expense of doing the actual road construction, it would be highly unlikely that the City would even allow that without a design of thc full 9,000 feet worth of road to soe how the ali~mont might even Itt in, which is why I understand thc City would offer us the opportunity to put up $7,700.00 and have the money in Bonni~ Brig from 1-35 down to Rosclawn. Right now tl~m's a State mainamance yard lgrc. Tbem's Liberty Christian School hca. The~'s ~ North Texas Golf Couts~ There's a rcsldm~ a fairly nmv rcsklcac~ here. In last two to ttm~ years, this home was built and I've bern tmable to fred tl~ owner of it. I know we did some surv~ng. We didn't plat fl~ pmpexty but Mr. Barber spok~ with tt~ owner of this hous~ in tl~o last f~v w~ks and brought up that this issu~ can~ up and it was waived in his casc to put up any money for road improvemems. There is an existing residenc~ and a barn hcr~. Ttm'~'s floodplain hc~ which makes this highly unlikely to be Thc~'s a brand now residmc~ right he~ on 12 13 14 15 16 17 18 19 20 21 22 23 24 25 escrow against thc event that the City cver builds it. However, I find it highly unlikely that anybody else would ever really be putting up the money besides Mr. Barber. Ho is he~ to answor questions and I'm certainly willing to answer any questions you have. COMMISSIONER RISHEL: com.miggion~r Powell. COMMISSIONER POWELL: Ygah. Conflict between what you said, sir, and what I sec in tho backup. You said $7,700.00 and I sec $5,400.00 hem. MR. YENSAN: I believe $5,400.00 is for the road improvements and the next item for consideration is an eight-foot sidewalk which is the balance. COMMISSIONER RISHEL: I think he's taking 22, 2002 Page 5 -Paee 8 Page 8 looking south. Mr. Barber's property starts in this area 6 we'd take th~ as motions separately. Did Mr. Barber wish 7 to pmsmt? 8 ~ YEI,,'SA~: Anything you want to say, 9 ~andy? 10 MR. BAR~Im~ That's it. 11 COMM~SS~OI~it lUSH~L: obviously a wise man. 12 This is an item for individual consideration. Any further 13 questions, Commissioners, of Mr. Barber or Mr. Ycnsan? 14 Seeing no further questions, Commission, any further 15 questions of staff? Commissioner Holt. 16 COMMmslom~t HOLT: YeS. DO we know if !17 there hss been any money put up by anyone else along 18 Bonnie Brae? 19 Mit. VOKOUN: NOt that I'm aware of. ~0 COMMISSIONER HOLT: And I know that on 21 Rosclawn not too long a~o someone put up some money, 22 COMMISSIONER RISHEL: Right, 23 COMMISSIONFAt HOLT: BUt nothing along 24 Bonnie Brae? 25 COMMissIONER Pasm~ ~t was kind of toward Page 9 Page 1 obviously, if anybody knows that ar~a knows that's not th~ 2 case because thc Parks own a substantial piece of propa~y 3 ther~ and the next pk:cc would be the Boy Scout property 4 that's on the south side of Roselawn, and then Roselawn 5 which would abut thc railroad and whatever else. And 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 Page 10 thc other end of Roselawn. MR. SALMON: Actually, several years ago when Liberty Christian School expanded and platted their property, th~ did put mon6~, up for the improvement of Bonnie Brae, and the City actually did use that money and repaved Bonnie Brae Sm:et all the way, I think I want to say, from Willowwood to, you know, the Airport Road inters~tion. So that work has already been done. It wasn't built with curb and gutter but we did put a full depth asphalt section there. But historically that's the only money that's ever been put up for Bonnie Brae that I'm aware of. COMMISSIONt/R HOLT: Thank you. COMMISSIONER RISHEL: Mr. Salmon, the map that we have that was apparmtly a blow up, what we've called Attachment 2, is that something that your staff put together for us? MR. SALMON: YeS. COMMISSIONER RISHBL: okay. As I look at that, I don't want our Commissioners, if they haven't had a chance to look at that piece of property, be conf,. Because what's indicated on this map that's submitted by the City is it shows Rosolawn going -- that abuts Roselawn Strut, Boulevard, whatever, going clear to the cormr or clear to the extension that goes on south from that. And, 6 7 8 9 10 11 12 13 14 15 16 17 18 19 :20 21 22 23 24 25 tlx~, of course, the Parks own that piece above Roselawn also. I think the Chamberlins own thc other comer in them. So a lot of that is futur~ resid~utial or other things as opposed to strictly Rosdawn whac I doubt if too many of those l~ople are going to be walking around or ~ to walk around over thcs. So I just make that as a point of clarification. Commissioner Pow~ll. COMMISSIONF-,R lOWELL: MI'. Cha~, I would movc to reconummd to City Council a full variance on Item 3. 3B. COMMISSIONER KBITH: I s~ond. COMML~SIONERRISHEL: clarification, 3A. MR. REICl-mART: we just need 3A and then COMMISSIONER POWELL: I apologize. 3A, I'm sorry. COMMISSIONER RISHEL: R'S ~ moved by Commissioner Power and seconded by Commissioner K~th. Any further questions or comments at this ting? Page 1 Commissioner Mulroy. 2 COMMmSlONER MULROY: Yes, I have a 3 question of Mr. Rcichhart. Larry, tho zoning history of 4 this loop going across cast to west on Roselawn, looping 5 up north on Bonnie Brae, we had some discussion in the 6 mapping changes. And I believe we changed that to the 7 largest category or thc least dense cate8o~ possible. 8 Could you refresh our manorics? 9 MR. I~ICHHAR?: Thc Planning and Zoning 10 Commission did recommend that that ama be redesignat~l to 11 the Rural designation and then get thc RD-S zoning 12 categnry. City Council did not do that in thc f'mal 13 mapping. It's still Neighborhood Centers but it is an 14 NR-2, you know, very low dense zoning classification. 15 COMMISSIONER MULROY: okay. Thallk you. 16 COMMISSIONER I~SHEL: i'd like to make thc 17 comment, I know when I first came on this Commission, I 18 always kind of scratclxxl my bead in what I thought was 19 wondcrf-ul logic that sidewalks in areas where people 20 wt:rca't going to bc walking wasn't very logical. It 21 didn't take mo very long to sec that there was development 22 that was so fast in our arca ttmt it surpriscd me in some 23 areas that -- in fact, some areas that I voted against 24 encouraging sidewalks and mobility and other forms of 25 transportation. And I cite very specifically a pie~ of PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 9 - Page 1 P~ 1 property probably on tl~ corn~ of Countr~ Club Road ~d 3 con~ m ~elop ~d it was s~ I vo~ ~a~t. 7 ~t s~ ~d, ~ is q~ a bit of &wbp~t going 8 on and I'm suppo~ve of s~ff and ~ ~ffo~ ~t ~'w 9 ma~ ~ ~ ~ put ~i~s in~ sus~sion and acq~ 11 a p~ofo~p~. 12 ~d so I wo~d vo~ ~nst ~s as [14 v~ance on ~is pro~ ae~ ~ ~ i~ ~t ~ 15 ~d put ~ a~y ~d ~ not ~ ~ &v~lo~ at 20 an ~crow accost by Li~ C~sfi~ Se~I w~ us~ f~ 21 ~avi~, ~aci~ Bon~ Brae; is ~t co~t? 23 p~ m ~crow. ~ ~ply p~d f~ ~me pavi~ 24 ~prov~ and o~ s~ ~t ~& ~. At ~ 25 ~e it was done ~ a comp~ly s~a~ or a Page 2 ~'t ~ve ~s p~ic~ or~n~ ~ p~ce ~t allows 3 for plaint of mo~ in ~cmw. 4 CO~l~ION~ ~HH: O~y. But ~at was 5 a~y a b~c~ mad pH~ ~ ~prov~ ~ ~&, 8 ~ ~ ~t Mp~i~, Bo~ B~ and ~t ~fion was 9 about ~ inch and a ha~ or ~o inc~ of asp~t ov~ 13 five ~ six inch ~ of a~t ~ch is ~ no~ 14 ~c~s for a Ci~ s~. 16 co~ in and m~g ~ ~prov~t ~ of ~ roadway, 17 no c~bing, no ~, no ~aina~ ~s put in? 19 mo~ ~t ~ ~w us ~d ~& it ~o as f~ as w~ co~d. 20 COMMI~tO~ ~: o~y. So in o~ 22 impmv~g an ~dy ~is~ r~ to ~ it fix~, 23 Li~ ~sfi~ c~ in ~d paid ~ ~ve it ~, 24 co~t? 4 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page condition of thek plat approval. 2 COMMISS[ONF. R KErrH: well, I just r~call, I 3 rm~nbcr wlien tl~ principal of that school would appear bofom tl~ City Council and was pleading with the~ to come in and do s~g about that road. And it's intt~r~ to learn to ~ it done, tb~y had to wind up paying for it for a road that should have already been tak~ care of by the City. Thank you very much, Mr. Salmon. In response to this project, lxfing one of th~ longest residents of D~mton on tim Commission, I remembex as a boy I used to hike down that road. It hasn't really changed much in 40 years. And as far as density growth does down the~, p~rhaps, but most of tim density growth is occurring in soutl~ast I~nton because that's in tbe direction of where the greatex employm~t opportunities ar~ at. This area may d~ve, lop as D~ton slowly ~olvos into allowing industry in. But I think in tl~ n~ar futura, oven in the ten years, I think it's going to re~rmin a country-typo pavexi road and I encoura~ the granting of tl~ full variance. Thank you. COMMISSIONER RISHEL: commis$iollcg Mulroy. COMML~SIONI~ MULROY: YOS. With all rospoot to th~ numbers and th~ formulas and what staff normally trios to accomplish in most casos like this, Page 1 usually it's very equitable. In this particular case, I'm 2 going to voto to stick with tho logic and th~ thinking of 3 tl~ Planning and Zoning Commission. Scvexal months ago 4 when we had a consensus this was going to be a rural ama 5 and w~ advocated the least dense zoning. And I think our 6 discussion went along thc lines until some point way down 7 tho road ia tho futura thcr~ is some mas~a' planning and 8 son~ long term tt~ught given, that we va~ going to go 9 with the rural nature. So I'll support the motion as 10 stalexi. Thank you. 11 COMMmSIONER ~sm~L: commissioner Apple. 12 COMMISSIOneR Ael'LE: SO that I don't tak~ 13 up tl~ Commission's time, I'll just say that I ooncur with 14 Commissioner Mulroy's assossmont and I too will be voting 15 for tl~ motion. 16 COMMI,~iONER ~IS~mL: commissioner Roy. 17 COMMISSlO~,W_a ROY: we have dealt with the~ 18 kind of issuos s~veral ~ including OhO in tl~ g~cral 19 vicinity, and I think the partial variance approach is 20 fair and I'll bo voting against tbe motion because it's 21 not consistent with our past practice and I just think 22 it's a good g~neral practic~ on tho partial variance. 23 Thank you. 24 COMMISSIONER RmH~L: Ke~p in mind that for 25 some mason this failed, them would still b~ an 22, 2002 Pa~e 13 - Paso 5 6 7 9 10 11 12 14 15 16 17 18 19 2O 21 22 24 25 1 2 4 5 6 7 8 10 1I 12 13 14 16 17 18 19 20 21 22 23 24 Page 17 opportunity for an additional motion. Any further co~ta~nts? Seeing no ~ comments, it's been moved and seconded. Please, vote. Motion carries 5-2. (~mtcElts msmm At~D ~OY VOT~O n~ OPPO61TION. ) Tho next part of this same variance is Item No. 313. Is there a motion? Discussion? COMMISSIONER POWELL: ! will move to grant n full variance - I will move -- excuse m~, if I might start over. COlVfldl.~lONES RISI-II~L: commissionc~, it loolaxl li~ s~ff wanted to pr~cnt. co~ttssmmm POW~LL: t apologize. You said motion and I took your word for it. ~tomm mstmL: tt may b~ my fault. I didn't know whct~ thc~ was still additional presentation that we'd like to mnlre Okay. I think we've had thc discussion or had the presentation so please proceed. COMMISSIONER POWELL¢ ~ would move to recommend to City Council n full variance on 313. COM~IONER APPLE: second. CO~flvflSS~OSEaiUStmt,: tt's been moved by 1 2 3 6 7 8 9 10 11 12 13 1.4 15 16 17 18 19 20 21 22 23 Commissioner Powell and seconded by Commissioner Apple. Any furflzr discussion? And I'll chin~ in there with my Pag~ 18 same ~ither logic or illogic. As I had ngntion~l before, I'd like to see us developing om' Mobih'ty Plan the best we possibly can with regard to alternative ~ion and things are happening so rapidly wi~i~ our community that I would like to sec a partial variance on this, but thc full varinnc~ I think is beyond where we nccd to be at this time. Any further comments? Stein8 no f-un~ comments, pleas~ vote. Motion canics 5-2. (COMMXSSIO~qERS PdStmL ArCO ROY VOTED ~ OPPOSITION.) 24 25 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 P~e Pa~ 2( PLA~~-AND ZONING COMMISSION MAY 22, 2002 Page 17 - Pa~e 2( Agenda 02-021 06/18/02 #34 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET June 18, 2002 Materials Management Questions concerning this acquisition may be directed to Charles Fiedler 349-8948 Kathy DuBose, Fiscal and Municipal Services~~i~ SUBJECT An Ordinance authorizing the City Manager to execute change orders to the contract between the City of Demon and Pharlap Construction, inc.; providing for the expenditure of funds therefore; and providing an effective date; (change order one in the amount of $139,613, change order two in the amount of $3,058, and change order three in the amount of $4,392). CHANGE ORDER INFORMATION Council approved the contract for the construction of the Solid Waste Facility on March 26, 2002, in the amount of $2,610,600. Change order number one is required to provide for connection to existing sewer lines. At the time of the original bid, two alternatives were still being evaluated regarding the route the sewer line would follow. Upon evaluation, a route was chosen that would avoid conflicts with existing roadway and right-of-way along Mayhill and Spencer Roads. This change includes meeting city codes for utility construction relative to Class iii RCP pipe, rock embedmem for the storm drains, along with manholes and backfill at a total change order cost of $139,613. Change order two in the amount of $3,058 is for the changes required to lower 40 feet of 8" storm sewer, and change order three in the amount of $4,392 is for the cost associated with the addition of Builders Risk insurance left off of the original bid specifications. The three change orders total $147,063 and increase the contract amount to $2,757,663. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) The Public Utility Board will consider this change on June 17, 2002 and provide Council with a recommendation. RECOMMENDATION It is recommended that the three change orders be approved in the amount of $147,063. PRINCIPAL PLACE OF BUSINESS Pharlap Construction Inc. Demon, TX 76208 Agenda Information Sheet June 18, 2002 Page 2 ESTIMATED SCHEDULE OF PROJECT This change order will not affect the scheduled project completion date of April 2003. FISCAL INFORMATION These change orders will be funded from Solid Waste project 66000200. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Change Order One Attachment 2: Change Order Two Attachment 3: Change Order Three 1-AIS-BID 2791 Denton Solid Waste Change Order 1,2,3 Attachment 1 CHANGE ORDER TO CONTRACTOR ARC'IIETRC~S PIIOJRC'T _-WO.~ BM ~.9'~1 COlq'FRACI SC)a: 2,610,600.00 Change P'.~.r ia mTd' rl~ ill 113% overhead 3. Clma~ for mckemlmim-,,c~, saattarysew~ ~ 10% o~erhcad & pruf~ Add 111% uvmtzemt & profit SlaO,,~s.oo Ii*OT V.AT,m LTNTIL SIGNED BY The Co, m.a~ Time ~'be ('m=eaged) (dec~e~) r,,,,~.h,,,,,~,,d], I.,y ......... MAXIM[~ I,?,]~ ~ K~V~ IJlGV.:~ AL.r!H..Op~ BY COt,]l!,~L ~ .~0~.~ ~ CHANGE ORDER KO~I-TRA. CT FO~ ~,610,600.0~ Phs~np C~lrJ~km CONTi~AC]' DAT~: ~v~/t 2~t~OOO Thc Contr~ is chen~sd ~s ~: Ffes~ m stta¢lml ~ o~ur ~u~ ~ ~ ~v~e~ I~ ~r ~e~ h ~ work 3. 2 eaeit'of8~ relmir slenv~ at ~ ~ 4, 12 tach of ~' M~ Lug nt $'/~.00 erich 11~. riverbed & profit S S30~8.00 CHANGE ORDER COIN'FIlACT DAT~: M~ch Please see attacked ebellg~ tamer mluesU by ~ DeVelopment, ~ for elum~s i.. ~ w.~ ~ requested, Invoice ~ 23]49~ BUlMei, m RjSk/C3J~r oFl)~mton $ SOS. BO ~ _ Mol. L Uu~4hv ha.- Sdve I m , gOi ,.-B Tm~ Sa'eeC _ ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE CHANGE ORDERS TO THE CONTRACT BETWEEN THE CITY OF DENTON AND PHARLAP CONSTRUCTION INC.; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE; (CHANGE ORDER NUMBER ONE IN THE AMOUNT OF $139,613, CHANGE ORDER TWO IN THE AMOUNT OF $3,058 AND CHANGE ORDER THREE IN THE AMOUNT OF $4,392). WHEREAS, on March 26, 2002 by Ordinance No. 2002-079, the City awarded a public works contract to Pharlap Construction, Inc., in the amount of $2,610,600 for the Denton Solid Waste Facility; WHEREAS, the Staff having recommended, and the City Manager having recommended to the Council that a change order be authorized to amend such contract agreement with respect to the scope of work and an increase in the payment amount, and said change order fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The Change Order Nos. One, Two and Three, increasing the amount of the contract between the City and Pharlap Construction, Inc., which is on file in the office of the Purchasing Agent, in the amount of One Hundred Forty Seven Thousand Sixty Three and 0/100 ($147,063) Dollars, is hereby approved and the expenditure of funds therefore is hereby authorized in accordance with said change order. The total purchase order amount increases to $2,757,663. SECTION 2. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ,2002 ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Agenda 02-021 06/18/02 #35 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET June 18, 2002 Finance Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider approval of an ordinance of the City of Denton authorizing an agreemem between the City of DeNon, Texas and South Ridge Recreation Club for the repair of swimming pools to be open to residems of the City of DeNon upon paymem of membership fees; providing for the expenditure of funds therefore; and providing for an effective date. BACKGROUND This agreemem allows for the expenditure of $1,500 from Council Member McNeill's Contingency Fund allocation. Key provisions of the agreement include: · Funds shall be used for roof repairs and retiling of two swimming pools; both pools shall be open to the public for period of not less than 5 years upon payment of membership fees which shall be no greater than fees charged to other members of the Organization · Project to be completed by June 30, 2003 · In addition to other reporting requirements, documentation in the form of cancelled checks and corresponding receipts specifically detailing expenditure of funds for the purpose provided is required · Indemnification provisions PRIOR ACTION/REVIEW (Council, Boards, Commission) None FISCAL INFORMATION Payment will be made from amount budgeted in District 4 Council Contingency Fund 103001.7750. Respectfully submitted: Kathy DuBose, Assistam City Manager Fiscal and Municipal Services ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND SOUTH RIDGE RECREATION CLUB FOR THE REPAIR OF SWiMMiNG POOLS TO BE OPEN TO RESIDENTS OF THE CITY OF DENTON UPON PAYMENT OF MEMBERSHIP FEES; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the South Ridge Recreation Club (the "Organization") offers its swimming pools to be open to residems of DeNon upon paymem of membership fees (the "Program"); and WHEREAS, the City Council of the City of DeNon hereby finds that the Program and the agreemem between the City and the Organization attached hereto and made a part hereof by reference (the "Agreemem") serve a municipal and public purpose including additional recreational activities to the residents of Denton 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 imo 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 Agreemem and to carry out the duties and responsibilities of the City under the Agreement, including the expenditure of funds as provided in the Agreemem. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ., 2002. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: EULINE BROCK, MAYOR AGREEMENT 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 South Ridge Recreation Club, a non-profit organization, hereinafter referred to as "Organization"; WHEREAS, City has determined that the Organization will perform an important public service for the residents of Denton without regard to race, religion, color, age or national origin by making its swimming pools open to the public for use by the residents of Denton; 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: Repairing of two roofs and retiling of two swimming pools. Both swimming pools shall be open to the public for use by residents of Denton for a period of not less than five years upon payment of membership fees. Such fees shall be no greater than fees charged other members of the Organization. II. OBLIGATIONS OF ORGANIZATION In consideration of the receipt of funds from City, Organization agrees to the following terms and conditions: A. The funds provided for in this agreement shall only be expended for the purposes set forth in Article I above, subject to Section IV.A. and for no other purpose. B. The Organization shall expend the funds in a manner that will allow for a tracing of funds and a review of the specific expenditures for which the funds were utilized. C. The Organization shall permit authorized officials of City to review its books at any time. D. The Organization will reduce to writing all of its rules, regulations, and policies and file a copy with City Manager's office along with any amendments, additions, or revisions whenever adopted. E. The Organization shall not enter into any contracts that would encumber City funds for a period that would extend beyond the term of this Agreement. F. As funds are expended, the Organization shall provide documentation in the form of cancelled checks and corresponding receipts detailing expenditure. G. The Organization shall appoint a representative who will be available to meet with City officials when requested. H. The Organization shall indemnify and hold harmless City from any and all claims and suits arising out of the activities of Organization, its employees, and/or contractors. i. The Organization shall 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: July 1,2002 through June 30, 2003, unless the Agreement is sooner terminated under Section VII "Suspension or Termination". IV. PAYMENTS A. PAYMENTS TO ORGANIZATION. City shall pay to the Organization the sum of $1500.00 to be used solely for the purposes set forth in Section i above. 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. C. DEOBLIGATION OF FUNDS/REVERSION OF ASSETS. In the event that actual expenditures deviate from Organization's provision of a corresponding level of performance City hereby reserves the right to reappropriate or recapture any such under expended funds, if City finds that Organization is unwilling and/or unable to comply with any of the terms of this Agreement, City may require a refund of any and all money expended pursuant to this Agreement by Organization, as well as any remaining unexpended funds which shall be refunded to City within ten working days of a written notice to Organization to revert these financial assets. The reversion of these financial assets shall be in addition to any other remedy available to City either at law or in equity for breach of this Agreement. D. AGREEMENT CLOSE OUT. Organization shall submit the Agreement close out package to City, together with a final expenditure report, for the time period covered by the last invoice representing final expenditure of funds under this Agreement, within fifteen (15) working days following the close of the Agreement period. Organization shall utilize the form agreed upon by City and Organization. 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 thereofi 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. Until such time as all dispursed funds have been expended and all document submissions are complete, the Organization agrees to submit quarterly financial statements in July, October, January, and April. Each statement shall include current and year-to-date period accounting of all revenues, expenditures, outstanding obligations and beginning and ending balances. Quarterly financial reports shall be submitted to the City within 15 working days after the quarter has been completed. E. An explanation of any major changes in program services. F. 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 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. G. 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. 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. SUSPENSION OR TERMINATION A. The City may terminate this Agreement for cause if the 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. B. The City may terminate this Agreement for convenience at any time. If the City terminates this Agreement for convenience, Organization will be paid an amount not to exceed the total amount of accrued expenditures as of the effective date of termination. In no event will this compensation exceed an amount that bears the same ratio to the total compensation as the services actually performed bears to the total services of Organization covered by the Agreement, less payments previously made. In case of suspension, City shall advise Organization, in writing, as to conditions precedent to the resumption of funding and specify a reasonable date for compliance. In case of termination, Organization will remit to City any unexpended City funds. Acceptance of these funds shall not constitute a waiver of any claim City may otherwise have arising out of this Agreement. 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 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: 4 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. 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. Organization cannot significantly change the nature, intent, or scope of the program funded under this Agreement without the prior written approval of the City. C. 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. D. Organization agrees to notify City of any proposed change in physical location for work performed under this Agreement at least thirty (30) calendar days in advance of the change. E. Organization shall notify City of any changes in personnel or governing board composition. F. It is expressly understood that the transfer of funds between or among programs of the Organization will not be permitted. XI. INDEMNIFICATION A. It is expressly understood and agreed by both parties hereto that City is contracting with Organization as an independent contractor and that as such, Organization shall save and hold City, its officers, agents and employees harmless from all liability of any nature or kind, including costs and expenses for, or on account of, any claims, audit exceptions, demands, suits or damages of any character whatsoever resulting in whole or in part from the performance or omission of any employee, agent or representative of Organization. B. Organization agrees to provide the defense for, and to indemnify and hold harmless City its agents, employees, or contractors from any and all claims, suits, causes of action, demands, damages, losses, attorney fees, expenses, and liability arising out of the use of these contracted funds and program administration and implementation except to the extent caused by the willful act or omission of City, its agents or employees. 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 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. NEPOTISM Organization shall not employ in any paid capacity any person who is a member of the immediate family of any person who is curreNly employed by Organization, or is a member of Organization's governing board. The term "member of immediate family" includes: wife, husband, son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, step-parent, step-child, half-brother and half-sister. XIV. NOTICE Any notice or other written instrumeN required or permitted to be delivered under the terms of this AgreemeN 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, addressed to Organization or City, as the case may be, at the following addresses: CITY ORGANIZATION City of DeNon, Texas Attn: City Manager 215 E. McKinney Denton, TX 76201 South Ridge Recreation Club AtteNion: Lori Wolt, PresideN 1921 Holly Hill Denton, TX 76205 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. XV. MISCELLANEOUS A. Organization shall not transfer, pledge or otherwise assign this AgreemeN or any iNerest 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 AgreemeN is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and coNinue to conform to the original intent of both parties hereto. C. In no even shall any paymeN 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 AgreemeN constitute or be construed in any way to be a waiver by City of any breach of covenaN or default which may then or subsequeNly be committed by Organization. Neither shall such paymeN, 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. In the event any disagreement or dispute should arise between the parties hereto pertaining to the interpretation or meaning of any part of this Agreement or its governing rules, codes, laws, ordinances, or regulations, City as the party ultimately responsible for matters of compliance, will have the final authority to render or to secure an interpretation. F. 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 ,2002. CITY OF DENTON, TEXAS BY: MICHAEL A. CONDUFF,CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT PROUTY, CITY ATTORNEY BY: GREATER DENTON ARTS COUNCIL BY: Lori Wolt President ATTEST: BY: ORGANIZATION SECRETARY Agenda 02-021 06/18/02 #36 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: June 18, 2002 Airport and Transportation Services Jon Fortune, Public Safety & Transportation Services SUBJECT AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER TO EXECUTE ON BEHALF OF THE CITY OF DENTON A GRANT AGREEMENT WITH THE TEXAS DEPARTMENT OF TRANSPORTATION RELATING TO OBTAINING FUNDS FOR THE REPLACEMENT OF A VEHICLE (BUS) FOR THE TRANSIT SYSTEM; AND DECLARING AN EFFECTIVE DATE. BACKGROUND Each year the Texas Departmem of Transportation (TxDOT) allocates discretionary funding for vehicle replacemem purposes to agencies imerested in retiring a vehicle or expanding their fleet. The City of Denton is requesting to use these funds to replace a Type 3 vehicle in the current LINK demand-response fleet. Due to TxDOT alternative fuel regulations and LiNK's imerest in improving air quality in North Texas, the proposed vehicle will be propane powered. Local matching funds will not be required for the purchase of this vehicle, as the local match will be provided through State toll credits. RECOMMENDATION Staff recommends approval of the attached contract between the City of Denton and the TxDOT to provide funding in the amoum of $64,000 for a Type 3 Propane Vehicle and provide local matching funds through toll credits. PRIOR ACTION OR REVIEW The City Attorney has reviewed the grant agreement. FISCAL INFORMATION The gram will provide all funds necessary for the vehicle acquisition. Increase to operating cost is not expected, as an older vehicle experiencing high maintenance costs will be retired from the fleet. EXHIBITS Ordinance Contract Prepared by: Stanley Nixon, CCTM Public Transportation Manager Respectfully submitted: Jon Fortune, Assistant City Manager Public Safety and Transportation S 2Our DocumentsSOrdinancesS025TXDot Grant Agreement for Bus.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER TO EXECUTE ON BEHALF OF THE CITY OF DENTON A GRANT AGREEMENT WITH THE TEXAS DEPARTMENT OF TRANSPORTATION RELATING TO OBTAINING FUNDS FOR THE REPLACEMENT OF A VEHICLE (BUS) FOR THE TRANSIT SYSTEM; AND DECLARING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager of the City of Denton or his designee is hereby authorized to execute on behalf of the City of Denton a Grant Agreement with the Texas Department of Transportation relating to obtaining funds for the replacement of a vehicle (bus) for the transit system, a copy of such agreement being attached hereto and made a part hereof for all purposes and referenced as Exhibit "A" (the "Agreement"). SECTION 2. The City Manager or his designee is the City's authorized representative who is directed to comply with any assurances, conditions, or agreements required to be executed to receive the funds provided under the Agreement. SECTION 3. That all prior actions of the City Manager and other City officials in executing various documents and certifications with regard to said grant application are hereby approved and ratified. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ,2002. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: E x h ib i t A Ii.S-C, IAI E, LOCAl., GRANT AGREE~IENT CAPITA].,, [:N¥'ESTSIENT PROGRASI THE STATE OF TEXAS "IT/IECOI. !1 OF FRAS" TH tS Ci'R, kNT ,A(;REES!i!]NT is made bl,.' arm Pctwecn d:~¢ State oi:'Toxas, acdng through thc I'exas Dcoamncr~ oFq'ran, sportation, ]'~creinai~er ca[lcd the "State." and. CITY OF DENTON hcreinatier cai led tine ' S!. 'BREC]PIENT," ~VITN ESSET:Ii";[ WH'E :RE AS. 49 L.S.C. {~,, _s _.4 ~. ~ ..!/m )<, I ~{. c L, a u Lh o ~5 z es th e U. S. Sec ret ar~,, o £ Tram~ spo rtati on make grants (o state go. vemn~cnts :'.o assisl in fimmcing capita~ pm.iects thai wi i! benefit [he counw's transi[ systems: and, WHE:REAS,, [he G'o'~ emor o1' the Slate of 1Texas has "=' ..... ~ x~e~]gmt[~(= i;he Texas Depamnen~: of Tr;mspor~::,~don {State) i:o receive :federal ['tmds under ~he Se:ct:io~:~ 5309 program; an.d, WHEREAS? Dxmx,portatioJ¢ C,")de. Chapter 455, authorizes t:he St, ate t;o assist the Subrzcipient hq procuring aM fbr r:l:~e puq0ose o1: es::ab[ish:ing and maintaining pt:[blic and mass transportation project:s and !o admJ:nist:er f:tmds approl'.mated fl0r public transportation trader 7)'cm~5,~or,'~'~/ou ("'o~/c, C]l. apter 456; and:, WHEREAS, ibc Subrccipieni: submitted an apl]Ileal:ion under Section 5309 go:r :lkderal 15nancia[ ~ssisi',.mce to 1oe [~sed Io finance capital, pro. ects to bcn.¢fit Texas' transit systems: and, WHEREAS, thc ..,,S, Secretary of'Transporl:ation approved ~he S:tate's m:equest:; FHER. E} ,)RE, in consideration oF the ~>rcmtses and o£ [he mutual co~emmts hercinaiter se~ ['k)l-'t}i, ibc Stk[[,: and Lha $ ubrecipicn[ hereto ;;grce as I'bl[mvs. Page I <:~f( 24 A G R E i:5 ~,:Ii E N T ARTICLE o~he:t~v~se modi.~ied as ]~erei. na[ter provided. A. RT iCL E 2. PROJECTDE"SCIH P'I.10" The Subrecipient shall commence, carry Oilt ~nd complete the public wansporta[~on projec~ described i:~] .Attacl::m']ent A..,5 ]m"oved[. ~ Proieca:~ Description.., ...... w/th a~li pracdc.',~bie dispel:ch, in a sou. nd. econom/ca~ a,mJ cd]]cicn't nmm:mr, The subrecip[ent: shall cra:from thc pt.mb]~c trans[~ oft ali on [~r%j cc t descri b cd [ n A[t ac hm en [ ,A, &PI? roy ed Proj ecl D csc ri pti c, n fn ac wiih [he provisions o!: [h:e Prqject Ii)esc:ripiion, ~l:~]s grz[n~ agreement;, fed. en~l and ~tate law, and [k~deral and stoic :reg~[ations ~s I:~c:rcJ. naf}m: rc[~:renced, [nchtding btt~. no[ ][mi[ed to: 49 [3,S,C, ~ 5 3()9( m )( 'l. )( c); 1.. n i f~rm A dr:fini, str.a[N'e Req uirem¢ nfs ]hr Grants and (:oopcrati~-e A gte emcnts S:'~r (irants and ?%grecnlerlts with Institutions oF Higher Education, Hospitals, and other Nora Profi~ Organizations ~49 CFR d~:o:s ar:mr thc ct~toc:tivc da~e or" this grartt agrecm, c:n: i"Or fl:m purchase of the approved item(s) referenced h:t A.~tach.mcnt B~ Approved Project Budge[, No la[ct dm::n s{xty <6(}) da. ys after the ~ssuance oiY public noii:ISca~on, the Subrecip~ent si:ail pubNc~y open ali bids, llhe Subrec[pien[ $]m]~ [sstm :~ purchase order no htr:er tNan thirt:y (.;.,:19 days a[ier the openh:~g o:t' a.n acceptable bid, The SubrccJp~e:~r shall not/f} tt:~,e departmen~ when ~t ~s necessary tn exceed these dcad~ir~es. A. RTICI.E 3. CO~'IiPENSATION S64~.OOO. 00 and t:oJ~ credits i;t~ ~:he amou:m:~ of I6,00[t ~.~rovided that expendS[utes are made accordance Yvi{h thc amounts and for thc pu.¢oscs autlmrizcd m Altact'tmcnt A~ Approved Pre jet[. DescHptNm and A[La~zhn'~cr~[ B, ~x,~>provcd., , Pro~:ec~: ,. . Budget, ~ , Suh recap ~cnt or ils s;,u bcont rac:{o rs. v e~:'H~ors., ma. nt:~ fi c rare rs o r supp He rs if su fiilc [en~: ~d end or stme Iitnd:s are r~ot availabie to pay the Subrect~. ments c]aims, C. io b,e eligible for reimbursement m:~der ~;his .... i:i~c ~Srant agreement period spc:ci..f~ed :i.n A..z'!Jclc [, Grant Period, and be at~:horizcd i.n ,.-%t:tachmen[ .,%, .,M>prov'c J Pr%i act: Description amd: A'nacl:Hnen. t: B, ,&.pproved Proj eot Budget, publScations as fe lows: P:~ge 2 m~f" 24, OMB Cir<:uhtr A-2'[, Coal Principles ibr Educ[niona[ h"~.sti[mions OMB Circuiar A-87, Cos~ Principles fi'>r Stale ar:id Local Govemme:nts Circa[ar A.,~ I22, Cost Principles !for Nonpt"ofit Organizations E~ Costs clairned by the St=brecipieo~. s!'ml'.i be actual set costs, that is, !he p!Sce paid mini.is any refunds, r:ebaies or other items oF valuc recei~kcd by the Subrecipient that have ~he efta*ct of reducing ~be cos~5 actually incm-re& F, The Subrecipiet~t may sub~q[t rcq. ues~s k~r rcimbursemenl to t:l:~e Slate no more fi'equently than monthly using invoice statemenls acceptable to ~l~e Stale. Requests l:or reimbursement must be furnished ~o the StaIc whhin ].br~y~five (45) days of t:he end of the mo'n~h during which 'the costs were h~curred. Additional d. ocumentadm~ ~o suppor~ any cos[ h~icurrcd during t]~c~ biliSng period may be required a~ ~l:'~e discrelio~ of the State, As = minimum, each loi~]ing must be accompanied by a surnrn~ry by b~ldget line item which indicates aide tala! alnlOUlqt m.~:d~orixed r0r each line item, [~reviotts expenditures, current pe?iod ex~endi, u:~rcs and balance remaining in the line item, G. Tl~e o'~ig:h~a~ and one copy of [he invoice is to be submitted to the ibl~owing address: Jay R. Nelson, E E. District Eagin:eer '/kxas Departinent of Transporialion P.O. Box 133067 I) a i las, Tex as 75313-3 067 !!, The State will make payment within thirty (30) days of' [he receipt of' properly prepared requests ~Yor reimbm-sement, 1., 1he Subrecipient will submit a final billit~g 'wiil:fin tl)rty-five {45} days of the complex, ion or tem~:inat:ion off ~l:~e giant agreemem in accordance wi. Ih Article I, Grant Period. J. The Subrecipient ah. all pay ail subcontractors fl0r work perforated wit/hiri 10 days allot Subrocipient receives payment :lS:~r dm work perSormed by the subco;]tractof The above requirements are a~so app:l~cab!e *o al! sub-'tier subcon[ractors and d:~c ~bowc: provisions sha!~ be made a par~ oJ' all Subrccipien~ agreemet~;s, Failure {o comply w/th any of the al0ove requirements may cause withhoidhxg oi" paymm]ts to the Subrecipienls~ .4RT!CLE 4~ A, MENiDMENTS Except as noted below, ct'~anges in rl~e scope, objecti, ves~ cos~ or d'm"a~ion o:F abe projec[ a:~thor'ized herein shall be enacted by written amendment approved b5 the part::ies hereto befi:~re additional work x:ay be perform, ed or additional costs incurred.. Any ame~dm, en.t so approved nmse be executed by bot:l:~ parties wkh, i:n ~he gran~ period specifi ed in Article [~ Grant Pcrio& Capital l. nvestmem: Program Page 3 of 24 ART[C L E 5. S UBCONTR ~CTS The Sulxecipiem she11, nol: em:er into any sl~bcontract with any individuals or organiza, tior~ lbr ~lne purchase of' equipment and:'o:r services without pdc, rau. ihorization and consent ~o tl'~e purchase asreemen[ by []'~e Sis!e. Any subcontracts fbr profesa~onaa services rendered by indNdduals or ~,,.<m~.zahons._~ not . par~. of the St~brec[pient's:. . ._ organization shah not be executed wllnotlt priol. auihoriz~tt[on anti appro',al or ilae subco:ntract by ~l:'~e State. Subcont:Facts in excess of S25,000 shah ccmtai[~ all Feqt;dred provisions of this CTontract. No sttbcontract ,~ili relie~.e the ARTICLE 6. RETENTION O17 i~CORDS A. Thc: Subrecipient agrees to maintain al! documents, repons, papers, accotmling records, and other evidence pertah:d~g to costs incun;cd under this agreement <the RecordsJ at :its dttring the grant period and [br fbur (4,) years !kern the date o f ~lna~ payment under the gram, Such Records shall be made available during the specified peri, od for inspection by l:he the [,. ,S~ Depart:ment of Transportation, Ibc Office o.(the Inspector General, and a'~y of [heir author:izod representatives Ii)r tl~e pu:~ose of rankling audi~$, examinations, exce~tots. t:ranscrJp~ons. B. Records fbr nonexpendable property aeqtfired with Federal or Slate l~.nds shal~ be !hr ~bur (4} years after ~inal d~sposifion of the pR)pert? C, If any ii{igation, ciah:n, or audit is started befbre the expiration of the fottr,..year retention~ per~od, the Records shall be retained unr[I ail litigation,, claims, or audh findirtgs involving the Records have been reserved. D, When Records arc' transik~rrcd to or maintained by thc federal or state sponsorh;tg agency, the fOur-yc'l~;r retention requiFe'men[ iS not appNcable to the Subrecipien[. E, Tl~e Subreeipicm further agrees to ncl~..~de these prey[si, ohs it~ each subcontract. ,:\R'[ICL!!; 7. SINGLE At DiT REQUiRI)TMIi~N'i'S Subrccipienl attdit proc, edures shall meet or exceed the sip, gtc audit requirements otttllned in Of lice o [ Managen~ent and Budgei (OMB)publications as lb!lows: - ~utht,; of States. tx>cai Go~emmen!s, and N'on-Pro!it Organizalions OMB Circular A ~, 13 ~3 .~:RTiC LI:2 8. b I,~ AN (. IAL M AN ,k,G,E~Ii~ N T $5 STE}! Thc S[[brecipicnt's linanciai management system shah m, ec:l or exce;ed the rcqtdrements of thc "Uni2:~nn Admilnistr:ative Requirements Ibr Grants ~[nd Coop, erafi~e Agreemen~;s to Sis, e and I.ocai Govenqmenls" {49 CFR Pa'~X ~8,20) anrFor Unifb'm] Administrative Requiremen, ts R)r Grants s!qc[ Agreements v..'itln Insti~:u~ions o:( Higher Education, Hospitais, an,d elbe: Non-Profit Organize!ions (4.9 CFR Ps7 19 Z1 ), Those requiren~ents inciude, but are not limited to: C~piiM !~[~vestmeni Progr~:~m in accordance whh Slatg aad Feder~l reporfin~ reqLdrm~enis, B. Records which a~cqua~ely idcntil}' th~ sam-ce and app!icmion of suppc, r~ed acdviHes. These records shall co~tai~ inl~m~at:ion pertaining to grant awards C. Effective control over and accountabiii~v i:hr all Rinds, property and other assets. The Sttbrecipiem shall adequately sat~guard al! stzch asse~s and shall assure thai they are used soldy fix authorized purposes. l). Compafiso:?, of act:ua! wilh budgeted amom~ts for each grant agreement, and relation of [inancial in]bm'ration to perilxmance or prod~stMr~y data inchtding the pR0dt~clion of t. mit cost in fbrrrmtiom whenever appropriate and rcquired by E, ]:h'ocedures For detemiining the digibiii~y for reimbul-sen~ent anc[ proper allocatioi~ of COSiS, F, Accounting records whid;~ arc supportod by source d. ocamenmtion, G. A systematic method to assure ~imc~y and appropriate resolution of al~dit findings and ARTICLE 9, PROCUREMENT STANDARDS St~brccipiei~ procurement standards shall lneet or exceed thc rcquh'cmc~ts o,f the Administrative Requiremems ~i0r Grant:s and Cooperative Agreements ~o Slate a:nd Local Govemmenls" (49 CFR Part !8,36) and/or 'Tni~5.~mq Administrmive Requipements R>r Grants and Ag:remnents with Institutions of High<'.r Educadom HospitaN, a~d other Non-.Profi~ Organizalions" (.49 CFR 19.40-19,48), attd FTA Circular FTA C .4220.1 D, including standa:ds fbr comped!ive procurema'~ts; med:-,ods of procurement; conlracfi~g with small and minority fin::t~s, women;s business enterprise and labor surplus area fi:m~s; contract cost and price; awarding age~cy review; insm'ance and bondirtg~ The Subrecipien~'s p[ocurement system must inck~de but not be limited to tlse ibl!owing procurement standards: A, Prom~remen~ procedures which reflect applicable state, al~d local laws and regulations, provided tlmI the procurements con[bn'n to applicable fttdera] law and the standards idend fled in this section. B.. A contract administnltion system which ensures that Subrecipicnts pgrltonn in accordance W[lh the ]gllllS, co~ld:itioas,, and specifications of their conm~c~.s or pure]mae orders, in Ll::~o awe:rd and adl:ni:nistrat[o~ of contracts, No employee, officm"~ o'r agency of the Subrecipienl shall pa=~icipatc in. selection or in the award or administ:rafion of' a contraci supporled b}, state or fed. era] [imds if a. conflict o[' interest. :rea~ or apparenL would bc involved. .D~ :-L process fbr review of proposed procuremcms to avoid purchase of mmeccssa~w or ciuplicafive items. E~ Use of state and local in~crgovc:rnmenufl agreements [hr procut:cment: o~: use of common goods and services '[o foster greater ccc.homy and P:~e ~ of 24 F. [.;sc o F w~iue en.g:i]~.eerii~g dausss in contracts ~br constmct:i, on proj G, Awards made only' to responsible contractors possess[n8 successfu![y under ~[~e terms and condi[Mns o~~ a proposed procurcmenL givin~ consideration ~o such matR~rs as contractor integrity, compliance with public policy, record of'past per~bm~=~cc, and anancial and ~echn[cal resources. li, Records sulNcieni :o detail thc significam ]ds~ory of' a. procuren~ent, including rationale For the me:.hod of' procurement, selection of contract typc~ contractor selection or rc~<'ction, and the basis for ~he contract price:. !, Lhn~l:cd use o([ime-and~ma~eria[s contracts. ,t. U'se ~')1' good admin[stra:[Ne practice and sound business judgment [o settle con t:mcma[ and adn~inist:rat[ve issues arising om o f p~ocurcmcnis. K. Prmes~ procedures to handle m~d resolve di. sputcs reia:~n~ ~o procurements and promp~ l: Procurement transac:{oJ:s conducled h.?. a manner t:]m: provides ikl] and open compe::tion. Upon procm'ement of items under this grar~t agreeme!~I, the Subrec~pien¢ shah submi~ ~o the StaIe a list of a]'~ bidders and subcontractors lhat quoted on the procured items. The S~brecipient shall t:elepl~one .m.m~bcrs, and %~c(s) o f' wo~k quo~ed. Ai!TiCLE 10, REAL PROPERTY MANAGEM'ENT Thc Subrccipient will comply with managemell!: standards scl fbrtl~ in the Administrative Reauh-emen~s~ for Grants and Cooperative A~rcements~ to State and Local -"x ........ " , Umlom~ Adm, m~s~rat~xe Requiremer4. s Go ,e~nmcnts (49 CFR Para lg.31) an&"or" ' ' ' ' 'TM = Grants and Agreements with instit, u.t/c, ns o[ ['tJgher Education, Hospha[s and Other Non- Profit Organ~z:s~ons '49 CI:R Part: ~9,32) acq't, usmon, tt.se, and disposition ol' rea! properly acquired trader the grant. B. The S[ai.e nit, st conc4.a: Jill. tl:~e award of' all. pL[rChase orders :[br non-expendab!e persona! ' g x 49 19.32 property as defined in 49 CI7R Part I c,,:~ ] and CFR ParL ART1CI.E ll. EQUIPMENT MANAGEMENT The SuN'ecipient will colnp~y wid'~ State management standards m~d with management standards speciiied in the "Unil.bm~ Administra~:ive Requirements Gr Grants and Cooperative [" "~ i8...)z:} al'!d,'ol7 '~[_Jllil'hlql~ Agreements I:o State and ..... ac,,.I Governmeats' {ac,... CFR Part '"" "'"' Administralivc Requirements iht Grants and Agreemen!s w'ilh lnsliturions o[ Higt'~er [}i:[ucation, ]:[ospi[:als, at~d other Non-Profit Organizakms" (4.9 CFR I9.34)in {Dc control, ;.se. and disposition o~7 cquipn~e:nt acquh-ed under this gnmt. I. Subrecip chi shaN reco'rd t],e Si:ale's secmity mteres~ as a lien o.n the certificate oft:Me of thc vehicle ~. ;he time of pt:~rchase in accordance wi. tb~ Transportai:ion Code, Chapter 501. !L Mail~i.:dr~ equipment records tha~ include a description o~' tke equipment; a sehal m;m~ber or other [dcn[[lication number; the source of eqLtipmcnq who hoIds fir[c; thc acquisition date and cost of the equipment; percentage of t~de'rrd and state p:micipa:t[o:n in the cost off abe equipment; t/he [ocat~om rise and cond:[fion of the equipment; mah~tcnance history lbr eacln veh~c]c~ and 'a. hhna[e disposition data II1, Condaci a physical inventory of Lh:e equipment: at least once every two (2} years :md reconcile the i. nvenfory with equipmcn~ records described i.n thc preccdh:~g paragraph. IV. Develop a control system [o ensure adequate sai~3guards to prevem Ioss~ da.mage~ or d:efi o:f::he equipment:. Any ]oss~ damage, or theft shall be [nvestigaled. V. Develop and G~low procedures to kcc:p thc. equipmem main:aincd and in good conditb:m As a mirfirnum~ Ihs Subrecipient shal~ /bllow [he vehicle ma:mtenance schedule recommended by iht manufi~cttmrer.: showh~g Il'lc date the main[ermnce was perGnned. Mai:n~enance records sh. all be provided to thc Slate [~pon rcquesL VI. Request d[sposi[i, on approval and [nstn~cfions fi'om the State, and ~f' aufl~ohzed to sell the equipment, use proper sa]cs procedt[rcs to ins:Lire [l],e high.es[ possible re[unn, ('~7. The St.tbmcipieni wil~ comply ',.vitB Title 43, 7i~xc~s :lrb~dm's,',~',:~'ive (.'c)&:, ~31.53. to pro~ect the public invesm~cnt in rca] propcr~:y and eqtfipmen[ purchased in whole or in pan wkh stale or f;ederal ['unds. D. ltl ~he event lhar project equipmenI is ao~ used in d'~.e proper manner or is withdrawn Ikom public u';mspo:nalion se?:ices~ thc Sul:>recipien[ shall [mmcd:i,a~ely notify the State. The State reserves d~c right to dir'ect the sale or trans itT el'property acquired under this gram agreement upon detem'finaion by the State that said property ~as no~: been fully or properly used. E, When original or replacement equipment acqtfired under a granl iS !10 longer needed Iqor the original prqject or program or E~r other activin;its cunrenily or previously supported by a federal or state agency~ the Subrecipient sha~l contact the State r.o reqtl, ea auth. ofity to dispose of thc equipment, r,u:~d the Stare sha]~ issue disposition instructions in accordance wilh 49 CFR Part I8.32 and?or 49 CFR Parl t9,34, F, A~I vehicles purchased under this grant agreement shall comply witk ~he Motor %l].icle Sa~kty Standards esta. b!ishe{i by tel'se LJ,S~ Depm-tmen~ og'[?ansportation, G, All vehici, es purd~ased under tlS~is grant agreemgm shall con'lply with al] i:ederat motor vehicle: still-poilu:dos requirements. Ii, Ail vehicies pm.-clmscd under this gram agreemc, nt slmi! comply wid] the bus testh~g; rcquh:ements set Ibr[h at 49 USC 5323{c) and 49 CFR 665. L The Subrecipient shai[ not execute any lease~ pledge, mortgage. !ien or o~;ber contrac~ ~ouching or alT~'cting Iht Faders! or 5U~e inieresr in anF project fac;i[ity or equipmer~[; nor si:roll the St~brecipient by any act or omission oi any kind adverse!y aflSeci: the Federal or Stare imerest or impah- i~;$ continuing control over the use ol'prq}ec~ Iii,ti]ides or ~qtfipnqe'n:t. The Subrecipicn[ shM[ comply whh requircnlents se~ 2:~rth :.ti 4.9 USC 5323~1} and 49 CFR 663 regarding pre-award a.nd post-delivery attdi[ reqtfireme.~ts. c a pit at .in Yeslment P r~.J, grn m Page 7 K. irrespective of coverage by insurance, unless otherwise approved i~ writir~g by the Slalu'. in ~.he event of loss el- damage to prqject property_ w!~e~l~e'r by casuahy or fire, thc fair markel value wilt i0e thc value off thc property immediaIc[y be.fbre ~he casualty or ~e. L, h'~ thc eve:n::: of ~oss due to casualty or fire, slraigh,-lin, e depreciat:ion of the asset. 10ased on thc industry standard ~[)r a usefb.l lit'~, shall be considered fair market value tmless othem.visc approved by dsc S~ate. M. Tim Recipien!/S~brecipicn[ shall notify ~he State immediately oCt:heft, wreck, vandalism or ART!CL!~i 12. VEHIC!,E iNSURANCE REQUIREMENTS The Recipien(/Stfbrecipients shall ma[ni:.aiz~ .at ].east the i:ni.nimt[m insurm~ce on at1 vebcIes m~d olher nonexpendable personal praperty as required by tl:'se insurrmcc reguta:tions of th.e State of %xas~ ARTICLE ! 3, BUY AMERICA -]he Subrecipienl agrees to comply with applicable Buy America requirements set fbnh :in 49 U.S.C. 5323{h)(j) and 49 CFR Pa:tx: 661, ARTICLE 14., CARGO PREFERENCE The SLibrecipienl agrees: a. to use pr!ivme/y owned Un:ited Sta{es-Fiag commercial vessels to ship at [east 50 percent oF the gross [otmage (computed separately for dry bulk ca~iers, dry cargo liners, and rankers)involw:d, whenever shipping any equipment, materiai, or commodities pursuant to (:l~,e underlying cent:tact to tl]e extent suc]~ vessels are ava. i[able at flq. Jr and reason~btc ]:ales ~br United Sta~es- Fl ag commercial vessels; b, t:o Ktmis!n within 20 wofldng days lbt].owing ~hc date of loading Jbr shipments originating wid~in the United States or withi~ 30 wofidng days ~b!Iowing the date of leading [br shipments originafi ng outsi, de d~e Uaited Sta~es, a legible copy ora ra~ed, 'on~-boa.rd'' commercial oce;m bill-of-lading in English. rbr each shipmem of cargo described in the preceding paragraph to the Division oF Naiiona] Cargo, Or, ce elm arkel Development, Maritime Administration, Was}fir~gmm DC 20590 and ~:o the FTA ]'ecipient (through t:he Subrecipient in tl~e case of a subcon~rar~or's bi!l-ot~!ading~} c. [o include [hL'sC requirements in at1 sttbcontracts isstted pursuant to [his cont:rac~ when ~;l~,e subcom:mct may invo)ve the ~ra:nsport of equipmem, mater/al, or commodities by ocerm vessel. ARTICLE 15. COORDINATION According to Tit!e 4.3 of the ~:.xz~x .:l~]m,~uxir~l?.,e Cbde ~31.49, thc Subrc~cipient wiil at ail times coordinate the provision o~' public transportation services wi~7[=~ other transportalion operators, bolh. pt=biic am.:i private, in the area. The Subrecipient wit! Furnish the State copies oF:my agrcc:mcn~, resulting f¥om such. coordinatiom .Agrecmer~,rs which, auth, ofize 'the payment oF project :K~nds to another entity arc sttbject ~o tile approval requirements described Alr[icle 5. Subcontracts- Acc~rding to FTA C 9070. ] E. l~rovt,ie ~:ra.nsportat::icn ,{', lhe ~4ellel-[l[ pulo lic on an incidental basis isnterfi~.re wilh U-ansportation services rbr the general elderly and disabled punic. The Pnge 8 Subrec:[pim~. EVEn a~,: Jim, es w'l~ereF'~racticab]E~ ~ slm[l makc a~a~abk: t]~e veh:[c[e ]tsel[ pm'chased ~:~t~cler mis program available to provide mmsportatio]~ to other elderly persons and persons wid:~ disabilities beyond, its own diems or not ~ein=~., used iS:'~r ~,~rant-related puq>oses ARTICLE 16, LABOR PROTECI-ION PROVISI'ONS A. The Subrecipiem agrees t.o mndertakE, carry ou~ and: complete the project under ~.he tenr~s and condition, s dot:ermined by the Secretory of thc United States Department of Labor ~o be ~ir and equimNe [o protec~ ~he imerests of employees affected by ~.l'~e project and meeting ihe requirements of 49 U,S,C, 5333(b). Thc St~brecipierx sha]i maintain documentation of comp~iaacc eilForts i:~ accordance with retention and acccssibiliIv z,c:quircments set lbr[h in Article 6~ Retention of Records, B, Ihe Subrecipienl agrees to comply with applicable transit employee pro~cctivc requirements as required under [he Transit Employee Protemive Agreements as se~ Forth under 49 U.$,C~5:310, ~531 l, and 05333 and 29 C]:R Parr 2t5, C, If applicable, d:~e Sli. brecipie~t sina]~ compiy with the labor protection provision as listed below. 'T'l:~e Public Body, CiTY OF DENTON, agrees that ihe fotlowh~g ~en:ns and conditions shall apply tbr ,he pr¢:uccfion of employees in the mass passenger transpormiim~ industry in the area of t:]::m prq?ct:: W['io ]ff!'ojec[ si!a!] I'le C~.ltTied t:.u~> ~ il-t SllC!l :l rqanrter and upon such terms .and co!xditions as will n:o~ adversely' afSact employees in ihe mass passenger ~;:rarssportatio~l industry wit[li:n the service area of the proj ecl, 2. A [ [ rigbls, p:ri vi leges, and bene:fi ts (hx:lu ding pension 15 gin:ts and b Ene fit s o f em p I oyeEs (inc:kt,ding employees already retired) sha:lli bE preserved a:[~d co:ntimaed, 3, "Fhe Pt.fl'~l[c Body shal~ be financiaily responsible [br an>,' dcprSvation of employment od'~er worsening of em?!oymel~t position, as a 17es'~!]'[ of the proj ecl In thc evem an. e:mpioyee is [en'ninated or [aid olT a.s a result of tl:~e project:, ]:m shall granted p~orfiy af emp]oynqen[ or r¢employmem to fi!! any vacant pc~sition ~br which he or she J.s, or by trsi.nJng or retraillil:t.g Call becomE, qt~aii~]ed In the event Lra.ill:ing required by such employment or reemploynterm !he Public Body shall provide or provide for such tr:fimng or re~raini~sg at ~no cost to the employee. /\.ny employee who is !aid o tT Or otb. Er\vise deprived of employment ar placed in a worse posjtkm with respect [o compensation, hours., working c<mdiiions, fi-inge benellts, or rights aad prRileges pertairm~g thereto at ally tJBle dulS:ng his or her employmcm as :',:~ :result of the pro_oct, including any program of ePfi:ciencies or economies directly or i. ndirecdy .related {hereto, sha]l be entitled to receive any applicable r:igl:xs, pri~,iieges and be ne ti'[ s as sp cci :i5 ed in [Ia e em p lo ye e p rorec ii ye mrangem en [ c ertl i~ ed b y t h e S e c roi ary c, f Labor under Section 4()5 (b} of the Rail Passe~ger Service Act o:Fi 97(I on Ap~Sl 7~6. 197i, A~s Employee shall not be r'egarxted as deixi):ed of emp[oymcm or placed m a worse position with r'espec~ to compertsation, etc.. ir~ case of his or her' resignation, deatlu Ca pit a i I nves£m en ~: Program Page 9 ~:ff' 24 'unenforceable, d].e PubI~c Body, the cmployce~ and/or their repr~senta[:[ves :may invoke employee p]:otec~kve arrangen]ents which shall be inco~on.n:ed in these oondit:io]~s 1'he Public Body agr¢=s that :my controversy respecting the project's e£t~c~s upon employees, []:~c interpretation or application of these conditions and the disposition 06 any claim arising hcretmder may., be submitted bye: a:nv., party to the dispute [ncludin=:~..~ the employees or their representative for det:em'fi~at:ion by lhe Secrelary of I.abor, whose decision shall 'bo finai. 1"he I::'t[blic Body sbail mair'~I:ah-~ []11(I keep on file al! relevant books a!ld records in suf]~ciem detail as to provide the basic in[brmation necessary to d~e making of tl~e decisions cai:ed ii:): ir: the preceding parag:ap]:. accuss~.,Ic place, a notice stating ~hat The Pt:~b[ic Body w[~t] pos~, in a prominent and :~ Pnblic Body is a recipient of Fecleral assistance uniter the Federal Transi; Act and has agreed to COml:3ly wi~h the provisions of 49 LL S.C,.. Sec~.im~ 5 ~ 3':~ ..,,,~.,= also speci!!5., (:he ten:ns re:id conditions set Fort:h h. erei.['! ibr the protection o f employees~ AR[EICLE 17~ C. IlARi LR :%/ D SC.[1OO.L BiS OPi~RATiONS A. The Subrecipient, or any subcontractor ac~ing on its behal:[[ shall not engage in charter bus opera~ions omside ~1~ project area wil[~J:rl which it provides regularly scl~edu]ed public ~:ranspormtion scrvi, ce, except a.s provided under Section 3(1:)of the Federal. Transit AcI: of ] 964, as amended, 49 USC 1602{0, and regulations permi:ning [o Charter Bus Operations, set ~i:)rlh al 49 CF[~ Part 604 and any a:meudments that may be issue:d, Any subcc>ntrac[ cn[erc~d i~to under these regu[a:dons is inco¢ora~ed into this Contract by mference~ Thc Subrecipient.. or any subcontractor acting crt ils behalf, shall :not eh. gage in scl'tool bns operations, exclusively ~br d~e transpor~mion of students or school personnc'], in con':pe~il:i.on with private school bus operators, except as provided under Sectio]~ 3(g) of thc Federal Transit .AcL or 1964, as a:mend:ed, 49 USC t 602(g) a:r'~d regulations per'raining [o School Bus Operations~ set ~k:~r[h at 49 CF]-( Part 605 and any amendments [hereto [,]nat may be issued. Any subcontrac[ entered [nt:o Li~qder these regulations is incoq>ora:ed ~l~to this Contract by ARTICILE i 8. MONITORING The Stare will merfit:or the progress of the pmjec[ amber:izod in this agreemcrt[ appropriate and necessary inspections_ hl. cl[x]irl~ bill: go~ limited to per[odk reports, physka] inspection o l:'project fi~c~!:ities, telephone corn, creations, ratters, and co~s~kren, ces. ['he State shah monitor t.md conduct 5sca~ and/or program audits et~ tl:~e Subr,cc[p[ent and contracto, rs to retiE}' l/he ex. ten~ o.t' services prov~d~:d m~dcr the terms o~' {he b~an~ agreemerm Representatives o~ the S~a~c or Fedcm~ 8o¥'6nlme~s~, shall have access to ]x'o~ec~ fac~l, hies and records a~ all reasonable times, The Sta~e and tbs lAS. Departmea~t o~' Transpo~afio'~, and any a.mt~orized representative thercoJ~ have dso rigisi al a~[ reasonaMe limes to inspect or o~hem'ise evah.mle the progress of the gram here'under and d'm: project premises. ~t' a~y' inspection or e'va[uation is made on [l'~ premises o~- d~e Subrec~p~e~ or a subcon~rac~:or~ the Subrecip]en{ shall provide and rcq~:~h'e d~e subcontractor to provide reasonable I~acihfies and assistance kx~ th.c safely and convenience of the inspectors in per~brmancc el" their cluties., All inspections and evaNm~io'ns sha]~ be per:l}ammd [n such a manner as wi it ,mt unduly de~ay tlqe proj oct, ARTI(~LE 19, I~PORTS The Srtbrecipiem shai[ submit: a brief nan:alive mc[tiding but n. ot limited to procttrernen, t miles[ones, incbading date of purch, ase order; vendor name and location, and estimated deli:very ,,:late Perk~dic reports shah thereafter inclttd, e bu~ ~o~ be limited [o documentation of ~.he status of thc procurcmem and dae progress or lbo project, Tlm State shah specify d:m inibrmatio.r[ needed, the ~bmml, and the frequency of the repot% The Subrecipient shall prompdy advise dso State in writing if aI any rime d:m progress of d~e prajec[ will be negatively or positively impact:ed, including: I. Problems, delays or i~dverse conditions that will maaeriatly al'l~ci the Strbrec/pient's ability to am~i..r:~, program objectives, prevent the meeting o1'" time schedules and goals,, or preck~de the ar.[ainment o C project work uuits by es~:abtished time per/ods. This disclosure shall be accompanied, by a staterncrX of thc actiort taken, or con!emplaled, by the Subrecipient and any S/a.e assistance ~eed. ed [o resolve the situation, C. 1I. Favor:able dsvel, mnmnts'~ or events that will e:[mb[e thc St~brcc[pieni to meet !.ime sc he tittles and go al s so oner t:h a~] anti cipated o r pro tilt ce m ore ~5ork ti[ii [8 tl]&tB o righm115' pmjecied, Every c~l::her year, or more 57eque~t]y whell h~struc~:cd by thc Siatc:. I. he Sulxecipient si:mil conduct, a pl'~yslcs im.,e:ntorv of gram:-.mpport, ed property as se~ The Subrecipieni shall develop pertbm'xmce._seats and management., objectives ,,xith Ti!.]e 43.7~'.¥,~x Code ,~% I g6 The Subrccipicnl shah maintain ~,5"di:!;e!! mxmsr:ena:r~ce records i:br each gran~:<st=ppolq:ed v eh i cie, ;:md sh al I m ak e such record s a",,"ai lab lero r:h,c: St:ate ~mon. rcq Lt es /,. ~t ~1 t ~10 il:l: 'd ITU :J}ac IU~ re ~,r's rc~ corn men, d.e d m si n lena n cc sch ed ti [ e. Page 1 ] ~.d' 24 ARTICI.E 20. DISP[ TES AND REME'DIES issues arising out of procurements entered ia suppor~ of the B, Any d~sputc concerning rite work k~crctmder, additiona~ costs, or any other non-procuremet~r issue shat; be subrnfftcd t::or resolu[km by h'd~rmal mediation, in accordmace wi~h ~he req u ire men ts ~1-' ~ '~n.r~ ~ Governmcm:al .D~sp ttte Resolu{~on Act, Cl:mptcr,, 2009, Go'~ e:rnmcnt Code. C. lk~s agrcmr~cn~ sh;.d~ not be considered as spec~fyh~g ;l~e exch~s~ve remedy Gr any but all remedies existing at law and in equity may be availed of by tither pa:try and shal:] be ARTICLE 21. PROGRAM FRA[D AND FALSE OR F[L-k[,]DULENT STAI'EMENTS OR R!~LATEB ACTS. (1) T'lrae St[brecipia:nt acknowledges that thc' provisions: of' the Program i::rami (}[vii..Remedies Act of 1986, as amended, ~ t ........ t:. 5 3801 et seq. and U.S. DOT rcauiationa "Program Fraud Civil k..~.. Par[ .¢1. apply to ]i:s ac:tiol~5 pertah]in~ i:o dais Project, Upon ex ecmion st:atemel~r i~ has made, [t makes, :it may' .make. or causes to be made~ pcrtaini, ng to the Linde:flying co~tracl: or the FTA assis;cd project :(bt which tlhs comrac~ w'ork i.s ~ ocm~ pcrtbnncd, In addition to o[hcr penalties that may be app[icabie, Ihs Sulwecipien', tk~r[hcr acknowledges dmt ~f ~t makes. or causes to: be made, a false, fictifiot.m, or Fraudulent ck!im, sta!emem, submission, or cerIificafion,, ibc Federal Government tresc~.=es the :rigl?~t to impose the l~e:n.a[ties of the Program Fraud _lvil Remedies Act of:' [:¢86 on tl'~e Subrecipient to the extent tko Federal Government deems app ropr~ate. or :Fraudule:nl claim, sla'temeni, submission, or cerfil::icatkm to [l~e Federal GovemmenI under a corlItFaci C(>]anC:C!ed. wii:h a project that is ~i:nanced in whole or b! part with Federa~ assistm:~ce or[greatly awarded by i?TA under ti:~e authority' of 49 U.S.C. 5 5307, i:hc Government the right to hnpose ~hc permit[cs of ~8 L,,S.( ~ i.(.}.J~ and L:,S,C, ~ 5307(n'~{'1) on thc Subrecipien, I~) tlxe extem, the Federal Gm,'emmenl deems appropriate. (S} The Su'brec~pient agrees to incklde the above two clauses i:n each subcontract financed whole or i:n pad: ',.~i!;h Federal ~ssis~ance provkied by ISTA.. [t is furd,~er agreed that the clauses sh a~[ not b c m ocli fi ed. ox c e p [ ~o id on:ti f? th e s'ttbc Olltractor who w itl be S'L[bj OCt [O thc pro,, i sio ns ,.:XRTICI.E 22, T'ERMIN, kT!ON The State may lerminale th. is grant agreement at any time beSore thc date of' completion 'wh, enever' i ~: is detenn i ned ;::lxat the Subrecipient has l}~iied to compiy wi th the condit:ions of days l:mor to the effkc6ve dale c,f [em~ination aid specify the effective date of terminalion. hwestmmst Progr;m:~ Page t2 of 24 shall agree upon the ienmnation corxn~]ons, includins t:he ehcct~ :c da~e, both part,cs atarce lha[ resm]q)~km of ~Jm grai~t ~s ,.¥arran~ed, a new Bran[ a~reemega must be de~eloped and executed by bo[h (. E~ther thc State or ~he Subrec~p~en~ may' termhta[c th~s a~reemcnt by ak'im~ notice in wrhJn~ one to the od':er :bt reaso:ns o:~ :ts own and not Sul:~ecL :o the approval o:~ the oa:i:er ~he evem: of t:cm).h:m~;~on [br convenience, neither t]'~e StaJe nor ~he Sul:)~ecip~ent sha~l be n. ab~t)" except as ot].~crw[se provided in this subject ~o addi!ional ~ D, Upor~ tem~hmtion of t]~is gran~ aaq-eemcnL wheff~er Ibr cause or at i. he CmlVemence of parties herelo, title to ali pr'opcrD and equipment remains with the Subrccip[ent subject m gte obligations and conditions set 15>rth in [his grant agreement and 49 CFR 18.3~ and !8.32, unless the state or Federal Fu'miing agency isst:te disposition instruc[kms to ~:he conlrary. E. In the event of tcrminaiion, the State may compensate thc Subrecipiem tbr gx>se c!igib]e portion of the gra:m'~t covered: by this grant agreement, p~o xk.d that the grant has becrt comple[ed in ac~.,rdancc wi!h [he ~em~s oF the m'an~ aarcemem. The Subrecipienl sha]l incur uew obligaqons for the terminated pon:ion after the effect:ive date of terminadom F. ExceIS~ wid/~ respcc~ to d. efi'tults of subcontraca>rs, ~he Suiorecipienl shall not be in d:e~ault by reason, o ( any [ai iure in perlbm'mnce of' this gram agreement ir~ accordance wita its terms (including an> failure by' the S ubrecipient to progress in dm per[bnnance of ihe work} if such 'Ifaih,tre arises out oF causes beyon:d the control and widxou[ il~e default or :m:~egligen:ce of Sttbrecipien[. Sucln causes may i:ncludc but arc not 'limited lo acts of God. or o:F the public enemy, acts of dm Govermn. en~ .in either its sovereism or contracg, ta[ capacity., t]res, floods, epidemics, quaranl'ine restrictions, strikes, Freighi embargoes, and unusually severe weather. In every case, however, thc l)h.iktre to per'fi>m] must be beyond thc control and without mba i~auit or negtigence oldie Subrecipient~ ARTICLE 23. CIiVIL RIGHTS il 11 Nondiscrimination - 11~ accordance ,,:¥i~h Titie V'I o:i'lhe Civil [4.U'~ts AcL as amended, 42 U.S.C, ~ 200(}d, seciion 303 of[he Age Discdmma~ion Act of 1975~ as amended, 42 U.S.C, 6102, sect'ior~ ~{)v of tho Americans with. Disabililies A:ct of' 1990, 42 iLS.(?. ~ !2i 32, and l';edera! tl"a~si~ law at 49 U.S.C.. ~ .<:~39 the St.l,~ccmtcht:" ~ ,' = "-': "' ' a. grces that ii wi I! '~oi discriminaie agah~s~ any' empl o ye~ or appl. sex, age, or disab i J it':'. Irt additi imp i emem in g regul a!io)~$ i 2 ) .g q~[!!lJ.. ~>1o vm cnt Opp ortuni ~.v - Th e Fo)low'in g e.qual e m p lo ?'ment oppo~ u~i!y reqt:t h"em cnts apply io i:he underlTing contract:: (a~ Race, Cnion Creed. National Origin. Sex In accordance with Tiller' ...... : .- % I~ o~l'm Civil Righis Aci, as amm~ded, 42 [!,S.C, } 2(';'00e, axi [?edera] [ransii ktws at 49 [.i.S,(}', 6 5332, thc Subrecipient a.arecs t:o compJh ,~. ~ ~ a al} appticab ~e ¢q ua! emp I o }q~']em oppo mm i ~y rec~uircm e!sts o f U,:S~ Dcpartn,en[ oF[.abor IU.S, DOL)reguiat:ior~s~ ..)~i~ce ol Federa~ Comract Compliance ' Programs, Eq. ua~ I~mploy:m:ncnt Opportunity, 7Departmem {which imp lem,ent Ex ecuti vc Order No. I 1246, ~'[Squa] Employmcn[ Oppormm I?;' as amended by I:.xecuti. ve Order 'Xn 1! 375, 'A..mendJ:rlg Executive Order I [246 Relating to Equal ]~:~vesm~em: Pri~gram Page I3 (f24 Emp!oy:nent Opponun, ity/' 42 L .S,,C § 2000e note)~ zmd whh any applicable FederM execm:ive orders, r~ulatfons~ and Federal polities that may in five ~'uturc a[TCc[ construction acti. vhies unde~naken ~t~ :l:~e course of ibc Project. The St:bmcipient agrees to take action ~o ensure that applicants are employe<i, and th:at employees are treated dudng employment, without regard to d::cir race, color, creed, national origh~ sex. or a?c, Such. aclion recruitment or recruim~ent advet-i~s~ng, ~aFoff or termination; rates of pay or other fbnns of com. pensat~on; and select,on fbr traimng~ ~ncludin6 apprenticeship. In addition, the Subrec:pien[ agrees to comply whh any h'nplement/ng requi:~zmcnts ETA. may ~ssue. (b) A~e- In accordance wi[h sect/on 4 oldie Age D[scfiminat:ion Jn Employmen~ Ac~; of [~ 967, as amended, 29 LJ~S.C~ ~ 623 m~d Federa~ transh law at 49 U.S.C. ~ 5332, the Subrec/pient agrees reft-sin fi'om discrimhm:8on against present and prospective employees tbr mason o F age, in addition, the Subrccip~ent agrees to comply whh ~my ~mplementing requh-ements FTA may issue. (c) ],2~5g)9.J!,~lj:~5 ~ ht accordance with section 102 of' the Americans wid:~ Disabilities Act, as amended. 42 iLS.C, {~ I. 21 [ 2. the Subrecipien[ abn-e:es thaL it will comply w~th the requirements o f U.S~ Egua[ Emplo}m~ent Opporlmm:y Commission, ~'Regulations {o Implement thc Eqtml Employment Provisions of the Americans with Disabilhies AcC' 29 C.F,R- Part 1630, Lo empJc~ymeB[ ~ - - o.~ per~ons w'[tl:] dis[~bi Biles, in addition, the Subrecipic-n.t a2rees to comply' anx implementing requirements FTA may issue, (3) The Subrec[pie]s[: also agrees to h~elude tl~ese requirements i:n each subcontract financed whole or h: part with Federal assistance provided by FTA, modified only if necessary [o klent~ the af".fkcted par:ies, AITFICLE 24. NONDISCRIMINATION ON TIlE BASIS OF DIS,¢~I..LITS: l'l':e Subrecipient agrees that no od:erwise qualified person with dis, abili!ty(ies)sl]a![, solely by' mason oi his/her disability, be excJuded fi'om pan:icipation: in, be denied l:he behests off or otherv:~se be subject to discdmh:at~on under the pr'~cct, The Subrec[pien[ shal~ insttrc [hat all fixed Gc]hty consm~c~on or alteration and ali new eqtfipmen[ included in the project comply with applicable regulations scl fbnh a[ 49 CFR 2Z Nondisc~Smfnation on the Basis of Handicap in Programs and Activhies Receiving or Benefith~g fi-om Federal Financ~ai Assistance, ARTI(LE 25, ])ISAD%kNTAGI~D Bt StNESS IENTERPRISEI'RO(:tR2,~k~I REQ1 ~IREM KNTS I[ ~s [l~e polio/of' the United States Department o:t~ Trans[}on:ation (USDOT) that Disad~,antaged Bi, si. ness .Enteq~rises {DBE} as defined in 49 CFR Part "5 ~.. . par[icipate i~1 d'~e perfom:ance of cop, tracts fi. nanced iii wl'mle or ill part with Fcdcral lhnds~ Conseque~:t[F; d~e DBE a. nd the Department D'BE Pro~zram requirements o1" 9 CFR. Part 26 apply to this Contract als lbllov, s: .:, .~:., as d. cllned in 4g CFR :[htr: '~ $[t bp art: ,A, the opp Otg't~[l:i [y t:O C oitlpete f'ai ri:> ~:br: coil[i"acts a.ild st~bc an tracl:s [~ n all ced il1 w!qole or in pad: with Federal ti:ntis. In this regard, the Subrccipient shall make a good fkfitl: e:f:tb~g to meet the DBE aoa: tbr this contract. 2. The Subrecipien~ and any SL:~bcontractor sha~l ~:o1 discriminate on the ha:sis of race, co}oF, natiom:t] origin or sex in tl:e award ind pc'rl:omqance o1: contrac:s :Smded itl whol:e or in. (]apl:raj :[n~eslment Program Pg~ge 14 of 24 ¸5. part with Federal funds Thx: Subrecip[ent and any subcontractor shall ca~y appHcalsle reqmremems o~: 49 CFR Part. 26 h~ the award and ad.m.h~strat~on of L~SDOT assisted corm:acts~ l?l:~ese reqtfirem;ems shall be physically included io m~y ~l~]~e percem;age goal Gr Disadvzntag~'.d Bttsiness Enterprise participation in the activities available R>r contracting oppommi[[es as se~ Forth tn 49 CFR Part 26. Fa~urc to carry out ~hc requirements set f0rd~ above sNd] co~st~tme a material breach of this contrac~ m~d. afier lhe noti~Scadon o~5 ~he S~a,te, may result: in termination of the conlract by ~:l:~e Smt:e or ot!~er such remedy as [l~e State deems appropriate. ,&RTICLE 26. ACT!ON The S[2~recipicnt wa~ants mar at!finnat[v¢ act:ion programs as :required by the nt~es am;l regulatkms o[ I:l~e Secretary oF [.abor 41 CFR 60-[ and 6(-2 ]rove been developed and are on file. ARTICLE 27, CONTROL OF SUBSTANCE ABUSE Tile Subrecipien[ agrees to comp[~: , with the temps o~49 CFR Parts ~xg¢_~, 39i., _ .:,=,~o~ and ~.~,,v.~s ill[ed Controlled Subst:a:n. ccs and Alcohol Use am~ "Feslh~g. Tine requirements stroll inclttde bu.t :riot limited to: A. Produchq~.= any. docum, entation necessary~ m estab]ish its complia:nce w:idn 49.. CFR Parts ~ B. Pen~itfing an3 auinor'tzcd representative oF'the ~; S. Department oF Transportation or thc State to inspect t:l~e Faciliiies, lestb~g processes and procedures, and records associated ~he imp[ementatio~ of ~]~e, C!mg ami a~coho] [csling program as rcq?aired under 49 CFR Parts ~ 8~. '~9 [, 392 m'~d "~ - C. The Subrecipien[ w~]] cm-ti~Y compliance wi[l~ 49 CFR Parts 382, 39~.. 39~ and ~>.J.. O1t O1' beibre each monitoring pe:riod, ~sing 'ibc certificafio~ fi)un Ifumished by the State. ..*tRTICLE 28. FEDERAL PRI'X ACY ACT Fhe St.dyrecipiel~t v:il! comply with ami assares thc comp~iartce o[ its employees witl~ it~:l~b[rmaticm rest:tic,ions al:td od~er applicable requirements o[7 the Privacy Act oF 1974, 5 USC s s q *a The Subrecip:i ent: will not operate a system o:f records on beha]F c, F [l~e [bdera[ witimut the e:xpress consem c,E the St:ate and Fcderai Govemmem~ A. Thu Subrecipic:n't tmdersmnds thai: ~ho m:equh'ernem~ts ot' the Privacy AcL i:nc[uding the civil and crimi~m[ penalties ibr violation of ~hat Act:,: tppb' to th~ose h~diMdua[s involve([, B. The Sabrec:ipiem ~flso agrees ro ir~ciude these requiremems i'n eLmh subconm~c~, to administer an) system oE records on 10chal[' oE thc lk:dcrai govenm'~ent ii~'m~:~ced m whole or m. part with i~t:ieral assistance provkled by RE'A. C=~p[~tl Iin~'esm~¢nt l'rogr=m~ P:~ge 15 ~:[ 24 ARTICLE 29. SI?ECIAL PROVIiSI()NS FOR C{)NSTR[ CTION OR REPAIR (ONTRACTS Thc Subrecipie~t agrees to comp]y xvhh Sections 103 and t07 ol'~the Contrac't WOrk Hours and Sa~k~v Standards Act (40 ~g ,}.s 327-_~o_121 ('[ 999) as supplemented by Depanme[}t of [ abet remdai~ons 29 C.F.R. 5 5 (1999) and 29 C.F.R. ~ 19~.. ,.6: {'1. 9c~: v8 '). A. Ti~e SubrecJp~en~: agrees to com. p?v with thc(..c pda~d~ ~ A:m-KtckbacK~ ' ~ ' ' Act [ ! ~ ~' u~St ,.:~R""; 4 ~ as supplemented, in Departmen~ ~)f Labor renu la,jells ~"~q~x, CFI:~. , Pan: .~ B, 'i'l:~e SL~brccip~em a~rces., to cornplv~ ,~hh the prox. isbns off the Dav[s.L~acon Act (4c~.. USC i76a to 9-7) as supplemented by Depanmem of Labor rcgLda.iions (29 CFR, Pan 5). C. The lem~s o:F tim :Depanmen~ of Tra.nsporlaiion rog'tda~ions "L ni[bn]:t Relocation and Re:ad Property Acquisition [bt Federal and Federally Assisted Progran~s' 49 CFR Part 25 are applicable ~o this C 3n~ract, D. The Suorecipien~ shall cause to be erected a~: ~he st~e of constructiort, and nmintained during censtmctiom signs satisfactory to the State and the Lni~:ed S~ates D'epanment of Transp~m:ation id. entifiyhag the :profed and i:ndicatfl~g that the (}overnmer~t is participating 1he development of'the pro joeL ART!Ct F~ 30. NO OBLIGATION BY THE F'ED, ERAI~ GOVERNM'ENT (i } "[7t~e Purchaser a.nd Subrccipicnt ,~.,~]m ,~ ~ed~c and agree thaL any' concur:r'ence 1oy thc Federal Government in or approval of ~he solici/at[o:~:~ or award of'the u.[xkr[y:ing conLract, absent the express written censure o," t:tm Federal Gc. vemmcm, t]:~c, Federal Govemmeni :is not a party to this co[m:ac~ al'ld S]lal] 1}0~ be subject [o arty obligations or liabilities to ,~Jnc Pttrchaser,: Subrecioicnt..~ or rtn. v_ other party.. {whether or not a party to that contrac~ )~. penah'fing to any' matter resulting [kom the underlying coni;ract:.. {2) I'he Subrecipient agrees to inch]de tt~e above clause in each sul3contract ¢lnanced h} whole or Ln pan: xx i'[h Fed,emi assistance provided by FTA, 1i is further agreed that the c~ause shall not be modiiied, excepl ~ q~ k:tenti tb, the sui0co:~}t:rac~or who 'wi]I be SLtbj COL to hs provisions, AKITICLE 3I. CLEAN AIR AND WATER l::ederai Clean Air Re, quiremen!s - ([] The Subrecipient agrees to comply with all applkab[e standards, orders or regulations issued pm:suam to thc Clean Air Act, as amended, 42 LLS.C, } ~ 7401 g:! ~.~1: ["ho Sttbrecipient agrees to report each viola!ion lo !he Purd~aser and understands and agrees tlmt the Purchaser~ wit1. in turn, repor~ each violation as requi:red to assure nmi[icafion [o FTA and the appropriate EPA Regional Office~ {2) The Subrecipiem also agrees to include tPese requirements in each sui:~contraci exceeding $1 ()(!.0 [1'!) fi n an c ed in w ,~:, I e or i n pith: w ith [::cdera[ as sist m:~c e p re v id ed b y FTA. [:cdcral Clean Water Rc~.£uiremenis- (, I '~ The Sul:>recipie]si: ~ =,. ~':~m'e~=~ [o cc moly, ,,vit:]~ al] applicable sEarldards, orders ~", ~' ' ':' ,.~r ~u,aton~ issued pursuant to tho Federal Waer Pollution Conm>! Acl. as ~ m [unq:, repoT! each: violation as Purchaser and unCl. ersia.:r~ds and agrees fi'mt the Purchaser wi],,' req't[ired to assm:e no[ii]cation lo F']'k and 'Lhe appropr:iate EPA Regio]m[ Off]cc. Capital I]r~esiment Progra[n Page [6 iff 24 Thc Subr'ecipicn~ also ,aBrees ~o include chose rcquia?emen~s in each subconm~c~ _,~.;L J [~nanced h'~ wlmJe or h~ part wid~ Fedora} assistance provided by ARTICLE 32. ENERGY' E:FFICIENCY 'l"h e S u b~'ccip.[ent agr¢ cs to co m pty w~th manda[o ry stand ards and policies relating x:~ energy eF~Sdency, ,,v!~ich: are contained in the state energy conservation plan [sa~ed in compliance wi. th the Ene~:gy Po~i. cy and {..7on. servatkx~ Ac1. ARTICLE 33, PR.OIIIBITED A. CTIVITIES A. Neith. e~,' the Subrecipient nor any sul)contractor sba!! use federal publicity or propaganda puq~oses desig~ed ~:o suppo~'t or de~;~at legislation pendh~g be~]Jre Cong:ress or the Texas Legisbrmre. B. No metal)er o.f' or delegate to ~he Congi'ess of l, h.e United Siaies shal. l be adm~ti, ed io any share .or pat7 o~ d~is ~rsnt agreement or to any beImfit ar~ C, No niemberk of]leer or employee of the Stlbrecipient during his tenure or one year thereafter shall have any interest, direcl or indirect, in this Es:ami agq-ecment or d~e proceeds diereo, f. D, Texas Transportation Commission policy mandates t!ml employees or die Texas Department o[ %a'mporiation (TxDOT} shaB not accept any benefits, girls or favo~;s fi-om any person doing business or who reasonably speaking may do btmh~ess wkh the State trader th.~s grant asTeement, ~l'he only exceptions allowed are ordi:~mry business kmci:ms and hcm. s that have received the advanced wrh:ten approval of TxDOT's Executive Dkector:. Any persons doing bus, ness w[{h or 'who may ~:caso~mb~y spealdng do business widl the S~aie under this grunt. ag:recmen[ may not make any ol:'f~[' of benefits, girls or I:kvors t<:) Tx DOT employees, except as mem[ooed here above. FaJhu:'e on the pa.[l of the Subrecipien[ to adhere to this policy may r'cstdt in the tem'dna:tion of t:h~s s~ant agreem, ent:. E, The S~Jbrecipient wjil comply with .Zk.¥~a~' Gove,m.~ent C'(2du, Chapter ?.3, by insuring that no ofi]ce~s employee or member of abe Subrecipient's govendng board or of lhe Subrecipient% contractors or subcontractors shaU vote or confim~ the emp[o?sent of any person relaed w[!hJ~l d~e second degree by affinity or th. ird degree by consan.~uinky to any member of the govenli.ng body or to any other ofiker o~' employee authorized ~o emp[,oy of supea ise such person. This prohibition shaU no~ prohibit the 6mpk~yment or a pe:sen who slmll have been contim~ousl, y employed R)r a period of two {2) years pc[or to the el:ect[on the o filter, emp Ioyee, gov.eixli~'lg bocIy membc-r ~'e]at:ed t:o saCtl person i n thc prohibited de~4ree. ARTICLE 34. PUBILIC INFORMATION The Stib~eci!.~ient. wi!I insure dmt all infi:n-niaiion collected, assemb}ed or mai. nIained b? dm applicant re,aLive to finis project shall be available to ~he pm.iblic dL~Hng nor'ma[ business houes in ~,m~p!e] ~:,;;. unless ,,}them(sc exprcssly providc'd by Pa~e 117 of 24 AR'FICLE 35. OPEN MEETINGS The Subrecipient will comply with Re, Yes Gove~wmen~ Code, Chapter 55'~, which requires al! regulan specia~ or called meetings of go:vemmenta~ bodies m be ope~ !::o l:l'~e punic, except as o[henv~se lxovjdcd by law or spccifically permhted in thc Texas ARTICLE 36. DEBT IO THE STATE If tlxe compi:ro]ler is currcnIIy prohibited from issuing a wammt to Subrccipient because ora debt owed to the state, then lhe Submcipient agrees that any payments r~wmg u!!del' the col/ir:ecl will be applied i:owar'ds thc deb[ or dehnqueat [axes tmtil ~]:~.e deN: or ac]mqaicnI [axes are ]mid in full, ARTICLE 37. INDEMNIFICATION A. To the ex,:eat peru.fitted by ]aw~ :[he S ubrecipient stroll ir~denmit!y and save harmless [[l'~e State from a~l ctaims and [iaNlity dLic [O activities of its agenis~ employees or trader [h~s agree]me:n[ and which: rcsu~! from an em~r, omission or neg~igem act of thc S ulxec]pient or o:[ any person employed by [l~e B. To tnt extem pem~itied by law, the Subrec~p~cr~[ sha![ also save lnam~less ~he Sta~e fi-om any m~d all expensca including attorney i~:es, wi'rich might be incu.:xcd by ~he State irm. !higa{ion othe~w~se resisting said claim or ~iabilifies wNch might be imposed on fi:~e State as a result activities by the S ubrecipient, its agents, employees or volunteers. C, 'Fo m::he extent permitted by law, the Submcipiem agrees to protect, [ndemnir}:, and save harmless thc State i?om and agains~ all claims, demands a[~d causes of action of every kind al~d character brought by rely volunteer or employee of the Subrecipient agains~ the Stare due ro personal Nj[tries and/or dealh to such employee resul~Ng :l¥om any alleged negligc:m by either commission or omission on Lhe pan; of ~he Subrecipient D. The Subrecipien[ ackJ~owledges that it [s not an agenL servant, or employee of the Stale and [hat it is respo~:~sib[e for its own acts and deeds and tbr those of hs agents~ employees or volunteers during thc perf0mmnce of i::he grant agrcemcnL ARTICLE 3.8, INTEL[.ECTUAL PROPERTY RIGHTS Iii' any h~vemion, m'orovemet~[ or discovery oF the Submcipient or any of its s'ubcomrac~ors is com:eNed or first acmatty reduced to practice hi: ~l:~e course of or under this grani, which: invention, improvement or discos, cry may bc patentable under the Patent Laws of t:he United Slates of Amer:ica or any tbreign country; a~d. il saM. invention, hnprovcmcnt or discovery has not already become ,.he property of the Set:e, die St~brecipient shaI[ hnmedia!ely notify the State and provide a demi[ed repor'l~ '[7'hc rights and responsibilities of r:l,e St:ale~ the St~brec:ipi~nt, any subconm/tctor and thc [fni:~cd .States Govemmea~ with. respect [o sklch invention wilt be de~.ermined m accordance whh applicable laws. reg'uiations, policies and any waivers th. cz:co[ [:urxher, the Subrecipient shall comply with the provisions of 4I CFR, Part [-9, The State and I:he LS Dcpar:~mcm of Transporr:a. fion shall have the royahy-ikee, non-exclusive and irrevocabie right to [eproduce, publish or o[he.m.ise c~se, and to at~thorize others to use ~l:te work fbr govenm~ent :Page 18 of 24 ARTICI~I!. 39. (OMPI,IANCE '!_~:ITH LAWS 'I'll~: Subrccipiertt shai[ c©mply with all fk'de~a], stat:¢ and total la:,,vs, stai::utes, o:rdi, l~an¢cts, rules and regulalions, and ~he orders and dec:-e~s of any courts or adm[n~stratiw bodies or tfibunaN h~ compensation laws, minimum and maximum sainT' and wale statutes and regulations, nondiscrimination laws an~d regulations and lkens~nB laws m~d regulations, Wl~en 'required, the Subrecipknl: shall lln'nisl:~ tl~e State with satis:fSc~oqF proof of comphanca ther~witln. .AI~T!CLE 40. PATENT RIGHl?S If an3 invention, improvement or discovery of the Subrecipicl~t or any of its subcontractors ~s conceived or ~irst actually reduced to practice in the course o i' or under (l'fis pn.~jec[, which invention, hnprovement or d~scovery may be patentable under the Patent Laws of thc United not already become the pvo.pa'b of the State under Art{de [6.C above; t:l~e Subrecip~ent shall i:lnmediateiy noti ti' the State m~d provide a detailed report. The rights and responsibilities o f the Subrecipient. subcontractors and the Ijnited States Government with respect to such hwenfion wi![ be detem~Jned h~ accordance with applicable FzderaI taws, regulations, po lkies and a'ny waivers tl~ereoK Further, ~}'~c S ubrccipient shall comply ,xid~ the provisions ot'4! CFR~ Pan I RTI(7'I'~E 4 I. COPS: RIGHTS '['i-te State a~d thc United Stales Department of"' , " ~" ~ransportat~o,n s,].al~ have t:h,e roya t'.:-t?ce, non- exclusive and i~evocable fight to reproduce, publish or otl:~erwise t~se, and to authorize others to use, CIYe work tbr govemnlem pmrposes. A. RTICLE 42. N : ONCOLLESION The Subrecipient v:an-artts ti'tat :it has not cmpio, yed or retained any compan'y of person., ti'mn a bona fide em[ ~o3'ee w'o. rkina ibr the finn. [o solicit or secure ins arm:it., and that [[ has not :paid or agreed to pay any compa~y or pe17soll, other than a Dorm lid. e: employee, any Fee. commission, percent:age, brokerage fee, ~ifi or any other consideration comingenl t;tl:~O~ or resulting fi:om tl.m award or making of this gram. IF the Subrecipient breaches or violates this ,,varra~Iy, !ho State shall have the right ~o annul ~his agreement without liability or. al its discretion, to deduct fkonl the grant price or consideration,, or ofll. cr'wise recover, the Full al!lOU,]!~[ of sucli Fee, commission, brokerage fee, gill, or contin~gen[ ARTICLE 43,. RESTRICTIONS ON LO!1[IYING Pursuant t.(.) Section ~t U,S-C. i352, 49 CFR Part [9 and 49 CFR Part 20, Subrecipienr. s v,.q::o al}pi3 or bid tbr ~.,m award of S 100,000 or more shall file ~he certification req. ui. red by 49 CFR Pan 20 v,'h. ich gen:cratly prohibits rccipzents of Federal ti.rods from using those r'non, ies ;or lobbying [xmrposes. Wl'~e'm'~ applicable. ~he Su~wecipien;; will fS.u-nis[:~, the State t:ln.e requ:ircd certifical:ion.. Page 19 ~:f24 ARTICLE 44, SUSPENSION AND DEBARMENT The r. crms of [Itc Department oF lYanspor[ation regulation, '"Suspension and Debamaent of Parficipa:n~.s in DOT Finanda~ Ass[sLance Program. s," set forth hi ExecuL[ve Order 12549 and implememed by .4?) CFR Parl: 29, are applicable to this grant ag:reeme~:~. IZur~lnermo:se, any comractor employed by ~he Sttbrecipient is also hotrod by the temps of 49 CFR Par~ 29 and mnst complete a 1. ower Tier Parlicipant Debam].ent Certification. The Subrecipie]~:~ wan:ants tha. t the debam~ent cenificatiot~ iimfished as part of thc applicat:ioJ~ iS current and vatki. ARTICI~E 45. iPROGI;b~tM INCOME Except. tbr income iS-om royalties and proceeds from the sate of real property or equipmem the Subrecipiem shall retaio program ir~c:ome and apply st. mh income to. allowable capital or operating expenses.. Program h~comc 2;rom royalties and proceeds [7rom sale of rea[ properly or equipment shall bc handled as specified ia 49 CFR Pan-[8- Un/fbmn Administrative Requirements For Grants And Cooperative Agreemcms To State And Local Governments, Sections 18.25 Program lncome; 183t Real Property; 18.32 Equipment; and 1833 Supplies or 49 CFR Part-19-:Unifom~ A, dministrative Requirements For Grants And Agreements With h~stitt.~:ions Of Higher Educat:ion, Hospitals, And Other Non-Profit Orgmqzations, SecL !9,24 ¢ .>a Federal y-owned and exempt property, and Prxmram income. [932 Real properlx. I (' ~' ~ Equipmenl. A. The SL~brccipient shall comply with standards governing i:tYe receipt and application program income as set [i>rds in &9 CFR i8.25, Program h:~com, e. Program income means s':ross income received by the Snbrecipient directly generated 17 a grant supported act:ivffy, or earned only as a result of d:~is grant agreement during the time period specified Grant Pedo& B. Program income includes income fkom Ibes for services perforate& fi-om thc use real or personai property acquired wilh grant; fimds, fi:om the sa~e of commodities or items ~Stbhca~ed trader a grat}t agreemeni, and ~i"om payments oF principal and interest on loans made with grant Rmds, Except as o~herwise pre)vi:deal in Federal regulations, program income does not ii~clude g:ran~ l'~u. nds, rebmes, credits, discounts, re. 5.mds, and th.e interest earned on any of these receipts, ART[iCLE 46. SUCCESSORS AND ASSIGNS The Subrecipient binds himself, his successors, assigns, executors and administrators in respecl I:o alt covemmts of this agreement. The St~brecipient shat] not sign, sublet or !]'ansi'er l}is interesi in this agreement without the written consenl of ihe St:ale. A:RTICLE 47. I,EGAI., CONST:RUCTION In case way one or more of the provisions co. ntained i:l~ rids agreement shah Ii:~r m~y reason, be hek] re, be invaliSd, i/l[egaJl or unenlbrceablc in any pespec[, sucll invahdity, illegality or unenSz, rcesb[lity shad[ not alT[~c[ any other pray/sion thereof and th. is agreement shall be constaL[ed as iF suc:h invalid, i!lega~ or une]}fbrceab~e provision had never been contained herei.m Capiia[ Investment Program Page 2(1 ~.ff 24 ART[CLE 48. CHANGES IN FEDEI:L&L REGULATIONS As a recipicr~i ol' federal Ih.ads, iht: Subrec~p~eni is required to comply whh all appiicable l~a~.~d dirocdv o:r by i-et'e, rence in the agreemem (Fom~ FTA MA (6) da~ed October. I999) between, the State a~d FTA, as they may be amended or promttlga~:ed ~kom dine to time duriu~ the tem~ of' ~his ag~:eeme~!. St~brecipient's failure to so comply sl?~a[/ constim[e a m~.~edal bt:ach oF dqis grant. ARTICLE 49. PRIOR AGREEMENTS This agreement constiiutes t]~e sole and only agreement oF the parties hereto m'~d supersedes prior u~dersm.ndi:~gs or ,,v~:~en or ora! ag~'eeme~ts between the parties respecti~g the pub)ic tra[~spo~Iat:ion grant speci~ically author:i, zed and iSmded tmde~' this agreement, AKFICLE 50. [NCORPO RATION OF FEDERAL REQUI. REM. ENTS This g:r..-ant ag.~-ecmem if.~cludes tem':_s a~:d cof:didons required by the U-S, Deparmqenl of T~anspod:ati. om "ri~e preceding provisions it~clude, in part, certail~ S~mdard Terms and Conditioi~s recruited by ibc USDO:% whc~tmr or not ex. pt'essly set .~bdh i.n the p~'.ccedi.ng con~rac~ provisio~'~s, All contractual provisions reqtfired by thc USDOT, as sc, i ~brth. in FTA Ciz:cular' .4220.1D, da[ed ApdI 15, 1996, arc hereby inco~ora:ted by re~:~r~nce. A.nyfl'fing ~,o thc conW'ary herein notwhhstandit~g,, al~ FTA mac, dated temps shah be deemed [o control in [:]~e event oF a coufiict with other provisions comained hn tl~is A~:eemem. The Subrecipient shaH. not percheron. at'~y act, 2ali to pcr!'0m~ any act, or reR~se to comply with any (llame ot~' grantee)re<!uests whic]~ would cause (r:amc oF grantee:~ to be in violation o:F the FTA tem':s aim conditions, ARTICLE 51. SIGNATORY ~SARRANIT' The undersigned signato%, lbr thc Subrecipient hereby represents and warrai28 that he sl}e is an o~7tlcer of the orga~miza6on Iht which qe/she has executed this agreement ;md tlmi: ne she has fu]t tN TESTIS'IONY WHEREOF, [l:~e parties hereV~ have caused these presel:~is ti:, :be executed dtq>~i, cate cott~erparls. THE ST4TE OFTEXAS (Tcl~5tk:d as being ex¢cmed ti:~r the puq~ose and effect of activating and,~or carrying out the orders, established policies, or work programs hcrctoibre approved and audmrized by [l~c' Texas Transoortatiort Commission trader the auttmritv of Minute Order ti APPROVED:: S U B RE CI PIE NF: Texas Department o I, Tra~'tsportation S]]b reci pim'~t N ;m =e:: CI:TY 0 F 1)E NTO N By: Date: ,la3 R. Nelson, P. E. District Engineer Dallas District Title: Date: Signatu. r¢ of Atttl~orized Officer Typ ed to r Pri]~ led Nam e Capii:al Investment Program Page 22 o[' 24 ATTACHME N T A APPROVED iPROJECT DESCRIPTION Eligible Pro, ram :Expenses: l 1:.1:2.04 Maximum Fettera! Fuads: $64,000 Maximum Toll Credits:l 6,000 (49 lJ',S,C~ ~5;309) CF'D~ ~O,SO0 Milestones: Invitation for Bid {IFB) Issued: No later th. lin si×~:y (60} days fi'om thc cfl;ecti~ e da~e of'grant agreemcnl. Bid Opening Date: No later fl:mn sixty (60) days aFt:er the issmmc¢ of [l~e gib ail bids are and pub[:ic[y opened., Purchase Order Issued:: No ]a~:er d.~an ti:fir,+' (3% days a.~le:r thc opening of an acceptable bid, Request l~r Reimbursement Submitted to the Depnrtmenr:: No later than 45 days after receipt o[:budgeled expend[lure. By: For: CITY OF DENTON Date: Capita[ [n,~esmmnt Program Page 23 or 2,4 Agenda 02-021 06/18/02 #37 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET June 18, 2002 Finance Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider approval of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and the Juneteenth Committee to support the Juneteenth Pageant; providing for the expenditure of funds therefore; and providing for an effective date. BACKGROUND This agreement allows for the expenditure of $500 from Council Member Redmon's Contingency Fund allocation. Key provisions of the agreement include: · Funds shall be used to help pay costs and expenses directly related to the presentation of the Juneteenth pageant held in June of 2002 · Timeframe of agreement is from June 1, 2002 to September 1, 2002 · In addition to other reporting requirements, documentation in the form of cancelled checks and corresponding receipts specifically detailing expenditure of funds for the purpose provided is required · Indemnification provisions and other standard terms and conditions PRIOR ACTION/REVIEW (Council, Boards, Commission) None FISCAL INFORMATION Payment will be made from amount budgeted in District 1 Council Contingency Fund 103001.7744 Respectfully submitted: Kathy DuBose, Assistant City Manager Fiscal and Municipal Services ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND THE JUNETEENTH COMMITTEE TO SUPPORT JUNETEENTH PAGEANT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Juneteenth Committee (the "Organization") sponsors and organized the Juneteenth celebration in the City of Denton, Texas including the Juneteenth Pageant; and WHEREAS, the City Council finds that it is in the public imerest to help support the Juneteenth Pageant; and WHEREAS, the City Council of the City of DeNon hereby finds that the Program and the agreemem between the City and the Organization attached hereto and made a part hereof by reference (the "Agreemem") serve a municipal and public purpose including promotion of a significant historical and cultural event in Denton, the recognition of worth citizens, and positive promotion of the City of DeNon to others outside of the City is in the public imerest; 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 imo 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 Agreemem and to carry out the duties and responsibilities of the City under the Agreemem, including the expenditure of funds as provided in the Agreemem. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ., 2002. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: S:/ourdocuments/cord±nances/O2/juneteenthpageant.doc APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: S:/ourdocuments/cord±nances/O2/juneteenthpageant.doc AGREEMENT This Agreemem is hereby emered imo by and between the City of Denton, Texas, a Home Rule Municipal Corporation, hereinafter referred to as "City", and "Juneteemh Committee", a non-profit organization, hereinafter referred to as "Organization"; WHEREAS, City has determined that the Organization will perform an important public service for the residems of DeNon without regard to race, religion, color, age or national origin by providing for events such as the Juneteenth Pageant which helps promote and celebrate an important historical and cultural event, brings recognition to worthy citizens, and promotes the City of Denton to others by its favorable publicity; 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: Monies may be used to help pay for the cost and expenses directly related to the presentation of the JuneteenthPageant held in June of 2002. Monies not to be used to pay overhead or salary of any individual connected with the event. 2. OBLIGATIONS OF ORGANIZATION In consideration of the receipt of funds from City, Organization agrees to the following terms and conditions: A. The funds provided for in this agreemem shall only be expended for the purposes set forth in Article I above, subject to Section 4.A. and for no other purpose. B. The Organization shall expend the funds in a manner that will allow for a tracing of funds and a review of the specific expenditures for which the funds were utilized. C. The Organization shall permit authorized officials of City to review its books at any time. D. The Organization will reduce to writing all of its rules, regulations, and policies and file a copy with City Manager's office along with any amendmems, additions, or revisions whenever adopted. E. The Organization shall not enter into any contracts that would encumber City funds for a period that would extend beyond the term of this Agreemem. s:/ourdocument s/contract s/02/juneteenthcommittee.doc ~. F. As funds are expended, the Organization shall provide documentation in the form of cancelled checks and corresponding receipts detailing expenditure. G. The Organization shall appoint a representative who will be avaihble to meet with City officials when requested. H. The Organization shall indemnify and hold harmless City from any and all claims and suits arising out of the activities of Organization, its employees, and/or contractors. I. The Organization shall submit to City copies of year-end audited financial statements. 3. TIME OF PERFORMANCE The services funded by City shall be undertaken and completed by Organization within the following time frame: June 1, 2002 to September 1, 2002 unless the Agreement is sooner terminated under Section 7 "Suspension or Termination". IV. PAYMENTS A. PAYMENTS TO ORGANIZATION. City shall pay to the Organization the sum of $500.00 to be used solely for the purposes set forth in Section 1 above. 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. C. DEOBLIGATION OF FUNDS/REVERSION OF ASSETS. In the event that actual expenditures deviate from Organization's provision of a corresponding level of performance City hereby reserves the right to reappropriate or recapture any such under expended funds. If City finds that Organization is unwilling and/or unable to comply with any of the terms of this Agreement, City may require a refund of any and all money expended pursuant to this Agreement by Organization, as well as any remaining unexpended funds which shall be refunded to City within ten working days of a written notice to Organization to revert these financial assets. The reversion of these financial assets shall be in addition to any other remedy available to City either at law or in equity for breach of this Agreement. s:/ourdocument s/contract s/02/juneteenthcommittee.doc 2 D. AGREEMENT CLOSE OUT. Organization shall submit the Agreement close out package to City, together with a final expenditure report, for the time period covered by the last invoice representing final expenditure of funds under this Agreement, within fifteen (15) working days following the close of the Agreement period. Organization shall utili2e the form agreed upon by City and Organization. 5. 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. Until such time as all dispursed funds have been expended and all document submissions are complete, the Organization agrees to submit quarterly financial statanents in July, October, January, and April. Each statement shall include current and year-to-date period accounting of all revenues, expenditures, outstanding obligations and beginning and ending balances. Quarterly financial reports shall be submitted to the Citywithin 15 working days after the quarter has been completed. E. An explanation of any major changes in program services. F. 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 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. G. Nothing in the above subsections shall be construed to relieve Organi~ttion of responsibility for retaining accurate and current records that clearly reflect the level and benefit of services provided under this Agreement. 6. 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. Such notice shall be delivered to City in a timely manner to give adequate notice, and shall include an agenda and s:/ourdocument s/contract s/02/juneteenthcommittee.doc 3 žÿ‡–âÆ?æÛ œ–§ƒ–N†_¹Î‹—š×“‰‹u†0ðµršß¿ Œ\qŽ„š§ž8“ܘž‘–…ž?Ö›‘ߊ‘›š]Ž‹žÞ(ßž‘ ŸLª7š¢ÚŸE‰òV·–Âؼev¦šƒd•(]a˜ ñŒ÷‘›ßŸ·ŒÝ˜›šý*Lžš¼ä ikb±“×’8×䎬¶‘™… ¬¶¸‚/ ýù˜ÿá–?ð¸f9ÅÚÖØòtÉ‹ÕŸÕßz_ÄŠˆŒË‘ÙÕ ‘’ß0ò ”5˜ù½Ý°Ä™ “¾$žÂÓÁ\MŒÜ£· “;Œ–¸•¿ƒ³£½4š{2Åít`ˆä@PÃo]}œ“I„Çß[Ç5R0l7-¶$rŠrO±˜Ï‘/áôŸ;W\à «^³ (5+“\‹9i=ÕM] ÓŽ&ÛßâTTñlýñ#òôäbcC<s±Ê›Ÿ3Ô#¬®^ƒù lë) Èœ¶.—ä=7Ó%¦U¡C yZ2Ü u÷l² v'¶ß =Á@o’”Ø yýÞñÝ¢r |(Å ~. q¬çc/Ndö~ôfmï5çucóÈgìè~p°$aßèj4b¹fõ¥sw&îGPðHY»`¿ÀEUeiïY$,v3páo Wƒ*skð-+*û² -*Yiïð$O§h,-p:.hê~¦-N+B?3MÀûma]%=t1A-77s=70-ûÖª¨—åœÜ²Ù1‚ @IE#:ú á¿#gmî1J†zÒeï¸qpª·†n1‡–“ž‹–‘ߙߞ‘†ß“žHMÿÐ,2–G ZW¸ÌÁZ}Rx“ÏâÜ[K§ù ÍœàÅ÷*0- 4|[µÃa9b9d±ñÃE9e8:‹Ê’ã?GÄy7°ŸzÁAIšH/\I$›ŒÕÑŠ‡’3”/ õ!ÇÓÙ§4ïÍÙË ê'Wa+ \é¾¹ÉüCÃü¬Ï‡¢6Œ«¨;cRzm¤ääJ‡þÖå÷-a r[&Ú÷3÷1aQÔ#hwƒT³i¤l!’—ùì¯îLÆEÑÅZÌ&Žå½0 Sˆhk'œ¯Œ …ãÁ80eõq3t–‚ ”è±û6v¾›éØ«mcŽ–ÁÂ5bõQö Š8`&K†3œ™Sˆoê¾KÆërØ 8cêCs «CÄÖ'’<—æò9ßÀÄùï…àã&š1Ó@uGÏaý—–ÔàÍ¥ ÖÁT˜æ"ayõ(=76’£Úâ¤*tæÑÄó&A¬¼¦=%ôÁÊ×מ’öÛ¼ËÙó^Û4ÞÍÔØ‚šËÁëÙ– /.?¾›-.Û››7 Š$ Š•®¸˜Å“;^œ0Ÿšœ7(Û ÂžšËå™ç ÆX‡–f4È8Ô:ѯÆß{šßš•1hz¾‘‡úõÿ©¶]œ,M’Ú ÈŠ~4ä1i†œ˜ššBãO^NX“Š‘‹ßžk"Ÿã–™Œß‹—šßŒžÈÕU™žÙ–§Ù Ý?W ]=‹ž“œ’Çó¬Ý·‹2ô7ßZø^¬½EǧŒ·¿Ú´.†ŸÒ s$ð)“N¨Ž™a#ó »ú®çÁÆðêƒþƒ—Š_Ê«ž»ÝŠ—ÏÒ–ŒŠˆß™ß°Ìˆ 1K•ŠÛ’°¼ÚÔ›ÉÓ†š»òÍÒäV˜›dèÂ>Ÿ’š5 åßúÁLÈ’Ûd[Òã~‰uP›1Ðœ‰ÞXù˜,3R:I,?}ViðšLLÞx·u4!ÄÝÕž 8“Ì_2#»AvÅè#–¸îe…1LA ÙiãA©5ý¶¨õX®2©š¢ß:6¶t³4ÙCøà 3ªq2ÝrÓu¯»q´q!}]. H§Þ\D$µ.à¬ðDXq¬Plë/k=ql6(%Yj<0 Æèù"Æ7Þ$i, ^=ÑSwìLr`¤ upæ@né0o®}¨Þ À'hÌÚ 111111X1rpbt1~wQ0!6)-*%0-+*hd 6›™Ép¬Ä\s‘߈–““ßš’–‹ß‹ß¼–‹†ßž‘† }îeppended City funds. Acceptance of these funds shall not constitute a waiver of any claim City may otherwise have arising out of this Agreement. 8. 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 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. 9. WARRANTIES ORGANIZATION represents and warrants that: s:/ourdocument s/contract s/02/juneteenthcommittee.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 my 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. 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. 10. 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 Agreerrent expressly provide that another method shall be used. B. Organization cannot significantly change the nature, intent, or scope of the program funded under this Agreement without the prior written approval of the City. C. 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. s:/ourdocument s/contract s/02/juneteenthcommittee.doc 5 D. Organization agrees to notify City of any proposed change in physical location for work performed under this Agreement at least thirty (30) calendar days in advance of the change. E. Organization shall notify City of any changes in personnel or governing board composition. F. It is expressly understood that the transfer of funds between or among programs of the Organization will not be permitted. 11. INDEMNIFICATION A. It is expressly understood and agreed by both parties hereto that City is contracting with Organization as an independent contractor and that as such, Organization shall save and hold City, its officers, agents and employees harmless from all liability of any nature or kind, including costs and expenses for, or on account of, any claims, audit exceptions, demands, suits or damages of any character whatsoever resulting in whole or in part from the performance or omission of any employee, agent or representative of Organization. B. Organization agrees to provide the defense for, and to indemnify and hold harmless City its agents, employees, or contractors from any and all claims, suits, causes of action, demands, damages, losses, attorney fees, expenses, and liability arising out of the use of these contracted funds and program administration and implementation except to the extent caused by the willful act or omission of City, its agents or employees. 12. 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 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. s:/ourdocument s/contract s/02/juneteenthcommittee.doc 6 13. NEPOTISM Organization shall not employ in any paid capacity any person who is a member of the immediate family of any person who is currently employed by Organization, or is a member of Organization's governing board. The term "member of immediate family" includes: wife, husband, son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, step-parent, step-child, half-brother and half-sister. 14. 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, addressed to Organization or City, as the case may be, at the following addresses: CITY ORGANIZATION City of Denton, Texas Attn: City Manager 215 E. McKinney Denton, TX 76201 Juneteenth Committee Attention: 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. 15. 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 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 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. s:/ourdocument s/contract s/02/juneteenthcommittee.doc 7 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. In the event any disagreement or dispute should arise between the parties hereto pertaining to the interpretation or meaning of any part of this Agreement or its governing rules, codes, laws, ordinances, or regulations, City as the party ultimately responsible for matters of compliance, will have the final authority to render or to secure an interpretation. F. 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 Demon County, Texas. IN WITNESS WHEREOF, the parties do hereby affix their signatures and enter into this Agreemem as of the __ day of ., 2002. CITY OF DENTON, TEXAS BY: MICHAEL A. MANAGER CONDUFF,CITY ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: JUNETEENTH COMMITTEE BY: s:/ourdocument s/contract s/02/juneteenthcommittee.doc 8 ATTEST: BY: ORGANIZATION SECRETARY s:/ourdocument s/contract s/O2/juneteenthcommittee.doc ~ Agenda 02-021 06/18/02 #38 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: June 18, 2002 Planning Departmem CM/DCM/ACM: David Hill, 349-8314 SUBJECT - Z02-0007:(3015-3315 N. Bonnie Brae) Cominue a public hearing and consider adoption of an ordinance rezoning approximately 37 acres from a Neighborhood Residemial 2 (NR-2) zoning district to a Neighborhood Residemial Mixed Use (NRMU) zoning district. The property is generally located on the west side of Bonnie Brae north of Windsor and south of Riney Road. The Planning and Zoning Commission recommends approval of Neighborhood Residemial Mixed Use 12 (NRMU-12) (4-2). (Z02- 0007) [Property owner initiated rezoning, initially reviewed during the Developmem Code review process.] (Hill) BACKGROUND Applicam: Joyce Poole, DeNon, TX 76207 At the May 14, 2002 City Council meeting this item was held at the request of the applicam. Since that time no additional information has been provided to staff. As part of the city wide rezoning related to the Developmem Code adoption, City Council reviewed this request at the January 15, 2002 Work Session meeting. At that time, a consensus was reached to rezone the property to Neighborhood Residemial Mixed Use (NRMU). However, at the January 28, 2002 Work Session meeting, Council reverted the zoning of the property back to Neighborhood Residemial 2 (NR-2) due to concerns related to adequate notice. City Council also directed staff to process a separate zoning petition, at no charge to the applicant. This case involves several properties on the west side of Bonnie Brae totaling approximately 37 acres. The applicam is requesting to rezone the property from Neighborhood Residemial 2 (NR- 2) to Neighborhood Residemial Mixed Use (NRMU). No specific developmem is curremly proposed. At its meeting on March 27, 2002, the Planning and Zoning commission recommended that the property be rezoned Neighborhood Residemial Mixed Use 12 (NRMU- 12) as an alternative. Public notification and property owner responses are detailed in Attachmem 3. Curremly, 75.5% of the land area within 200 feet of the subject property is in opposition to the zoning change, requiring a Council super-majority vote for approval. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends (4-2, Apple and Rishel opposed) that the property be rezoned to Neighborhood Residential Mixed Use 12 (NRMU-12). ESTIMATED PROJECT SCHEDULE With the exception of one lot, the subject properties are not currently platted. A final plat is required prior to the issuance of any building permits. PRIOR ACTION/REVIEW The following is a chronology of Z02-0007, commonly known as 3015-3315 N. Bonnie Brae: Application Date - February 21, 2002 DRC Date - March 7, 2002 P&Z Date - March 27, 2002 No neighborhood meeting was held. FISCAL INFORMATION Development of this property will increase the assessed value of the city. short-term public improvements that are the responsibility of the city. It will require no ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification 4. Photographs 5. Letter from Applicant 6. Detailed Plan of PD- 115 7. Minutes from March 27, 2002 Planning and Zoning Commission meeting 8. Draft Ordinance Prepared by: Thomas B. Gray Planner II Respectfully submitted: Douglas S. Powell, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary_ of Zoning Request This case involves several properties on the west side of Bonnie Brae totaling approximately 37 acres. The applicam is requesting to rezone the property from Neighborhood Residemial 2 (NR- 2) to Neighborhood Residemial Mixed Use (NRMU). No specific developmem is curremly proposed. Existing Condition of Property_ Property History. February 20, 2002 - The subject property was placed in the Neighborhood Residemial 2 (NR-2) zoning district and land use classification by Ordinance 2002-040. Previous to the adoption of the DeNon Developmem Code, the subject property was zoned Agricultural (A). The property is surrounded to the north, south and west by Planned Developmem 115 (PD-115) zoning district (Attachmem 6). Neighborhood Residemial Mixed Use 12 (NRMU-12) zoning is located directly to the east of the property. Comprehensive Plan Analysis The subject site is located within the "Neighborhood Centers" future land use area. These areas may develop in convemional patterns or may be developed in a pattern of 'neighborhood cemers'. Neighborhood cemers are oriemed inwardly, focusing on the cemer of the neighborhood and comaining facilities vital to the day-to-day activity of the neighborhood. A neighborhood center might contain a convenience store, small restaurant, personal service shops, church or synagogue, daycare, individual office space, a small park and perhaps an elememary school. Commercial activity cemers which provide convenience shopping for goods and services to an individual neighborhood are permitted with Neighborhood Cemers. The DeNon Plan specifies that the typical neighborhood mixed-use activity cemer be no larger than 10 acres in size (see p. 44). Due to the size of the NRMU district being proposed by the applicant, staff does not believe that the applicant's request meets the intent of The Denton Plan. Developmem Review Analysis Transportation Trip generation will depend on the type of developmem being proposed. Since no developmem is curremly being proposed for this area, it is impossible to predict how many trips would be generated by this zoning change. Depending on the type and size of development, a TIA may be required at the time of platting. Access. The developmem will have access to Bonnie Brae. Three poims of connectivity are also being provided to the adjacem PD-115 property per the approved PD-115 Detailed Plan (Attachmem 6). Road Capacity Bonnie Brae is idemified as a secondary major arterial road by the DeNon Mobility Plan. This road is designed to be a four (4) lane divided street without parking, providing four (4) lanes of through traffic. As such, its designed traffic capacity allows for a tolerable traffic flow of up to 19,100 trips per day. A traffic count on Bonnie Brae south of Hwy 77 indicated an existing volume of 2,214 vehicles per day. At the platting and permitting stage, the development will be required to meet the minimum requiremems for pedestrian linkages; utilities; drainage and topography; signs; landscaping; open space; lighting and environmem quality impacts. Staff Findings The applicant's request would potemially create a neighborhood mixed-use activity cemer 37 acres in size, which contradicts The DeNon Plan policy that Neighborhood Mixed Use Activity Cemers be no larger than 10 acres in size. As well, the approved Detailed Plan for PD 115 provides for approximately 30 acres of office, retail and multifamily developmem froming Bonnie Brae just to the north of the subject property (Attachmem 6). This could potemially create a very large commercial activity cemer along the eastside of Bonnie Brae and lead to the "stripping out" of Bonnie Brae for commercial purposes, which is in comravemion of The Denton Plan. While staff does agree that Neighborhood Residemial 2 (NR-2) zoning is perhaps no longer appropriate for this area, given the surrounding zoning, staff feels that a 37-acre tract of NRMU zoning is excessive and is not supported by the comprehensive plan. Staff believes that Neighborhood Residemial 6 (NR-6) zoning, which generally matches the residemial densities in the surrounding PD-115 zoning district, or Neighborhood Residemial Mixed Use 12 (NRMU-12) zoning, which matches the zoning directly to the east of this property, would be more appropriate and be supported by the comprehensive plan. ATTACHMENT 2 Maps Location Map NORTH SITE Northlakes Park Scale: None NORTH Zoning Map SI Scale: None ATTACHMENT 3 Public Notification NORTH Notification Map SITE Northlakes Park Scale: None Public Notification Date: 200' Legal Notices* sent via Certified Mail: 500' Courtesy Notices* sent via 1st Class Mail: Number of responses to 200' Legal Notice · In Opposition: 2 · In Favor: 5 · Neutral: 0 March 15, 2002 8 9 Percent of land within 200' in opposition: 75.5 % *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 Property Owner Responses Property Owner Name In favor Comments and Address /opposed* We are basing our request on logical and solid reasoning as well as compatibility to future John and Dorothy Smith development in this area. Bonnie Brae will be a major 3309 N Bonnie Brae in favor traffic artery between the Engineering School and Denton TX 76207 UNT's main campus. Mixed use will allow much more flexibility and will complement the mixed use zoning directly across the street. Wallace B Duke 3315 N. Bonnie Brae in favor none Denton, TX 76207 Rodney Eric Fullerton Maria R Fullerton in favor none 3015 N Bonnie Brae Denton TX 76207 Debbie Collinsworth P O Box 1212 in favor none Denton TX 76202 Joyce A Poole for Adam J Kunzman in favor This is a reasonable request based on nearby zoning 3021 N Bonnie Brae -i.e. RCC-D & NRMU equivalent & NRMU-12 Denton TX 76207 Cary Cobb I ntermandeco opposed none 1401 Burham Drive Piano TX 75093 Philip Baker Rayzor Investments Ltd opposed We will reconsider if provided with information on the 1204 W University #400 proposed use of the site. Denton TX 76201 *A copy of the original notice can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 4 Photographs ATTACHMENT 3021 N. Bonnie Brae Denton, TX 76207 February 21, 2002 Mr. Doug Powell, Director Planning & Zoning Department City Hall West 221 N. Elm Denton, TX 76311 RE: Requested zoning change/Neighborhood Residential District Dear Mr. Powell: I am one of several residents who are in agreement to change the proposed NR-2 zoning on our individual properties to NRMU. Wh~e this request was approved in the Council session of January 15, 2002, the decision was later made that this request along with selected others would need to come through the Planning & Zoning formal process. Therefore, we are attaching the same information and completed Zoning Application forms from each of us. While each of our properties are currently zoned "Agriculture" and vary in size, the combined and related whole of our area is rapidly changing the needs and land uses of our area. Notably, the recent purchase by UNT of the former Texas Instruments property, the northward progression on Bonnie Brae of Retail and 'other than' single family' uses. Ail of our properties front onto north Bonnie Brae, a four-lane primary artedal street. Bonnie Brae will inevitably become a primary direct route from ~UNT north campus at 288, to the western-most edge of the main UNT campus and housing areas. It appears logical that in a very short time, this street will be even more heavily trafficked. The land and uses will be developed to serve currently proposed residential neighborhoods to the west of Bonnie Brae and for the University of North Texas site and other business services in the area. We note that on the east side of Bonnie Brae, directly across the street from our properties, the zoning is to be NRMU-12. The NRMU-12 zoning goes north to the east/west portion of Riney Road, then continues where Riney Road drops south to connect to W~ndsor Road. Each section of Riney Road is sorely lacking in design, width, and weight-carrying ability to sustain and carry heavy traffic loads for commercial-use or multi-family development traffic. On the north side of the east/west portion of Riney Road, approximately 40 acres of land is zoned RCC-D. This is the heaviest-use zoning of the Regional Mixed Use Centers and about 200 feet from our northern edge of NR-2 zoning! Next, please note the Planned Development known as the Smith Tract, PDt115 (see attached). A large section of the northern side of this PD was granted "Commercial and Office" use zoning. These uses under our old zoning would most closely align to the uses allowed in the NRMU district. (Please see copy of' former zoning uses, attached). Because of the approved land uses (on the PD) that affect, and are in direct relationship to our NR-2 status, again, we ask your approval to our request to be designated as NRMU zoning for each of our properties. The zoning change is in line with the Comprehensive Plans' goal to provide a vadety of services within "walking distance" of a neighborhood. Page Two January 11, 2002 The following residents are submitting the signed Zoning Application form(s): John and Dorothy Smith AND Mr. and Mrs. Wallace Duke Joyce A. Poole Edc and Maria Fuller[on 3309 N. Bonnie Brae 3321 N. Bonnie Brae 3315 N. Bonnie Brae 3021 N. Bonnie Brae 3015 N. Bonnie Brae PH. 387-6019 PH. 382-8829 PH. 382-9662 PH. 566-1831 We again have received verbal approval for this change of zoning from Intermandeco (Mr. Kerry Cobb), who are the people involved in the Planned Development PDt115. They have asked for the City to fax them a notification form so they can respond in writing on this issue. Your consideration and approval of the requested changes in zoning and uses are most appreciated. Sincerely, ~oy~ ^. Attachments: PD~115 footprint Zoning regulations that apply to PDt115 CC: Members of Council, City of Denton ATTACHMENT 6 7 8 9 10 11 12 13 14 15 116 17 18 19 20 21 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 24 25 2002. you would CondcnseltTM PROCEEDINGS (COMMISSIONER HOLT NOT PRESENT) COMMISSIONER RISHEL: Good evening, I'd like to welcome you to Planning and Zoning meeting for 27th, start off with the by the Pledge to flag. If oin me. ~n, the Pledges were recited. The first item on our believe that the the docucam shortly. Consent Agenda No. 2, 3, 4, and Thank you very much. is the Consent Agenda and I Agenda will be up on hopefully. Items on the existing Agenda as Items MULROY: no, 3, start with SIONER APPLE: I'll move the Agenda. COMMISSIONER MULROY: I make the minutes of the previous meeting -- I the February 27th meeting. COMMISSIONER RISHEL: We have a motion on the floor to approve the minutes from the COMMISSIONER ROY: I second that. COMMISSIONER RISHEL: r discussion or corrections? P correcting me and that ~ Thank the Consent Agenda. to approve the Consent VOte. carries 6-0 of is no longer inclu to approve the Motion has been made Is there a second?. second, since Item 2 RISHEL: approve the Consent discussion? Excuse me. passes unanimously. So the next item on our Agenda is Item No. 6 has been asked to move in we will move that to the now been moved All in favor please No. and -- any vote. put it after Item No. 9 on our Agenda, if that meets That will bring us to Item No. 7 on our Agenda and Item 7 will be posted shortly on the docucam. And Mr. Gray will present. I think we threw Mr. Gray off Page 3 1 because we changed the Agenda he,ce, so bear with us for a 2 moment. 3 Apparently, we don't have the docucam set 4 up to show the Agenda items at this point in time so we 5 will -- Item No. 7 on our Agenda is hold a public 6 hearing and consider making a recommendation to the City 7 Council concerning the rezoning of approximately 37 acres 8 from a Neighborhood Residential, NR-2 zoning district to a 9 Neighborhood Residential Mixed Use which is NRMU zoning 10 district. The property is generally located on the west 11 side of Bonnie Brae and north of Windsor, south of Riney 12 Road. And Mr. Gray will present. 13 MR. GRAY: Thank you and good evening. The 14 property is located -- you can see on this map, the 15 property, subject property is located here. It is 16 currently zoned ~R-2. the applicant is proposing to 17 rezone it to NRMU. tn your backup we have a staff 18 analysis, an Attachment 1. 19 Staff does not disagree that this property 20 probably should be upzoned from sR-2. It's surrounded by 21 a Planncxl Development zoning district that is 22 single-family residential and it's across the street from 23 an NRMU-12 zoning district. However, staff does have some 24 concerns about zoning this to NRMU. we're concerned that 25 if this goes to t,r~MU, that's going to be 30 acres of large Page 1 neighborhood activity center. That, plus the fact that 2 the existing Planned Development for this subdivision has 3 another several acres of proposed commercial and office 4 located here. 5 It just means that there's going to be a 6 lot of commercial, the potential for a great deal of 7 commercial and office development along Bonnie Brae. And 8 that concerns us mainly because one of the goals of the 9 Comprehensive Plan is to limit strip development and so we 10 have a concern about that. 1 Another conc~n we have is that currently 2 Bonnie Brae is classified as a secondary major arterial. 13 If this development were to occur, it might increase 14 traffic such that we would have to reclassify -- do a 15 Mobility Plan amendment and reclassify Bonnie Brae as a 16 primary major arterial. We don't even have traffic 17 counts. We have no idea as to what the traffic impact of 18 this rezoning would be simply because at this point in 19 time, there's no -- the applicant docs not have any firm 20 plans for development. So with those concerns, staff is 21 concerned that NRMU zoning is probably too intense. We would probably feel more comfortable with NRMU42 or even 23 NR-6 zoning. 24 I do have some responses, property owner 25 responses. I have three in favor and two opposed. I'i1 PLANNING AND ZONING COMMISSION MARCH 2TI'H, 2002 Page 1 - Page 4 Condonselt TM Page 5 1 pass them around but I just want~l to note real quickly 2 that the two prop~ responses opposed, in opposition 3 were from the surrounding Planned D~v¢lopment, as well as 4 some proportics on the other side of the subject property 5 and that will put us way over the 20 percent rule simply 6 because it's surrounded on three sides by this one 7 property. I'll pass these around and I will be happy to 8 answer any questions. 9 COMMISSIONER RISHEL: Thank you, Mr. Gray. 10 Just as a note, apparently the microphones on the dias may 11 not be working as well as we would hope and if you would 12 speak up, if you address the audience, it might help us. 13 And just wanWxt to make that comment. 14 Any further questions of staff, 15 Commissioners? Mr. Reichhart. 16 MKREICHH,~a~T: I added to the pile of the 17 neighborhood responses, we had one sitting up here when we 18 came in. There is one more in favor and you'll see that 19 as it comes through. 20 COMMISSIO~'~ msuEu: ?hank you, Mr. Gray. 21 Ma. OR~Y: Thank you. 22 COMMISSIONER RISHEL: IS thc petitioner 23 here and would they like to present? Please come forward. 24 And if you have multiple people that are part of the 25 petition, I'd like to remind you that all of that will be Page 6 1 included in your time. So if you have multiple 2 petitioners, it's part of your same block of petition 3 time. 4 MS. i'OOt~E: one of our petitioners is ill 5 this evening and unable to attend. That is the Fullerton 6 that owns the five acres which is the long narrow strip. 7 If you'll look right here, this group here, they are 8 unable to attend tonight due to a severe family illness. 9 And so they have sent their apologies but they are in 10 favor. 11 My name is Joyce Poole. I am representing 12 the group for -- they've asked me to represent all of them 13 and so I am representing four property owners but there 14 are five individual households on the frontage of Bonnie 15 Brae. 16 During the rezoning of the properties 17 across the City, our block of homes were given the 18 designation of NR~2, as you've just learned. Until late 19 December 2001, when tn, rr made their official announcements 20 that their purchase and the plans for the former TI site 21 would change everything from residential more into a very 22 busy street. That street~ however, will -- that caused us 23 all to look at the zoning a little more closely around 24 each of our properties and how it would affect us and 25 carry on from there. Page 7 1 As you will see from this abbreviated view 2 of our immediate area, and I have put that on the top of 3 each of your little packets that I laid on your desk, you 4 will see that there is in this i'D an NRMU zoning to the 5 north of us. There is RCC-D to the northeast of us. 6 There is NRMU-12 that goes not only across from Bonnie 7 Brae but all the way around Riney Road, which is barely 8 one-and-a-half car trail. They're a very undeveloped road 9 site. We are -- obviously, with Bonnie Brae being now in I0 a very direct thoroughfare from the north campus of the 11 twr enlargement directly into their primary campus, as 12 well as any future developments that are going to be, and 113 I understand could be even fight now on the table for the 14 north end of -- the very far north end of Bonnie Brae. It 15 makes our properties no longer viable or usable as a 16 single-family residential home site. 17 We are asking for equity with our 18 surrounding zoning that is already in place based on what 19 the Comprehensive Plan has placed on those properties. 20 The areas fronting Bonnie Brae will be able to comply with 21 the Comprehensive Plan as it has been noted that a central 22 -- neighborhood center, it should have access to any 23 future multi-family or single-family developments. And 24 this will be very tree because even in the m) that is laid 25 probably in your own backups from the City, you would Page 8 27TH, 2002 Page 5 - Page 8 PLANNING AND ZONING COMMISSION MARCH 1 look, if you look very carefully, there are already road 2 sets cutting into the north, the south, and to the very 3 north section of this property that they had akeady 4 preplanned to have cut throughs into this property that 5 they have underzoned at this point in time. 6 On January 15th, our group request was 7 approved to be ~RMU by the City Council. Unbeknown to us 8 or without any notification, they did reverse their 9 decision a week following that. And they did inform us 10 that we must -- that we would have to come through the 11 Planning and Zoning track for this zoning request, and 12 that's why I'm here tonight. 13 Also, in your packet I have given you the 14 original backups to -- the little signed cards that we 15 presented to Council that night and the reasons why the 16 people in this 37-acre group had requested this change. 17 And it only is, again, asking for equity and not 18 discrimination against everything that has gone around us 19 and the fact that we will be pretty much in compliance 20 with anything in the Comprehensive Plan. 21 Just because they might put the very 22 frontage roads portion into commercial and/or office 23 commercial, which is what's up here, does not mean that 24 behind us they could not put in multi-family and make that 25 blend together in the north -- or west portion of this CondcnseltTM Page 91 1 section that we are looking at. 2 We are very disappointed that we lost the 3 City Council situation and have to come back before you 4 and cause you folks to have to now reconsider this. I 5 think it's kind of a waste of time for our Planning and 6 Zoning Department, as well as your thaae, but we are doing 7 what was directed. 8 Many other cases have gone before the work 9 session of City Council and were granted the change in 10 zoning without having to do this process so we're a little 11 bit concerned as to why we have been requested to do so 12 but here we are. We do so much appreciate your time and 13 consideration of all of this. And I realize it's kind of 14 like thrust upon you. 15 And if you have any questions that I can 16 answer, there are other people here, probably would like 17 to speak to that. But those who are here and have 18 properties that are affected, I would like them to stand, 19 please. And as you can see we have, outside of the 20 Fullertons who are ill, they are here. And thank you so 21 very much for your time. 22 And also I guess I'll give you another -- I 23 don't know what you call this, an aside, I guess. But I 24 did speak with the Rayzor Group who owns the land that's 25 the NRMU zoning directly across from us. Page 10 I COMMISSIONER RISHEL: would you push that 2 up on the podimu little bit so we can see it? 3 MS. PeeLE: oh, I'm sorry. I screwed you 4 up. 5 COMMISSIONER RISHEL: NO. 6 MS. PeeLE: Right here. The Rayzor Group 7 who owns the NRMU zoning, this right in here, I did speak 8 with their group personally and I spoke with a Mr. Phillip 9 Baker. His response was that we never send in anything. 10 We only send in opposed to any request like this. I do 11 not have time to play with this. And that was his 12 response. So if you have that as a consideration in your 13 debate, I would appreciate that. 14 Also, prior to this time, the folks that 15 own the PD around us, when we went before the City 16 Council, they had given Mr. and Mrs. John Smith their 17 absolute approval on this. And I believe Mr. Smith will 18 speak to you about that personally because I did not speak 19 with him personally. I think it's a little more valid 20 from him. Again, if I can answer any further questions, 21 I'd be happy to do so at this time. 22 COMMISSIONER RISHEL: we have a couple of 23 questions, Ms. Peele. 24 MS. PeeLE: Thank you. 25 COMMISSIONER RISHEL: commissioner Keith. Page 11 1 COMMISSIONER KEITH: Thank you. Yes, Ms. 2 Peele, what was the original zoning before the rezoning? 3 MS. ?OOLE: we were all AgricultLLre and all 4 of us, except for - well, I guess I would be considered 5 Agriculture in the fact that I was there. I did have a 6 kennel, breeding kennel when I moved into town of Oerman 7 Shepherd pure bred dogs, showing and breeding and 8 obedience kennel. The people next door to me, the 9 Fullertons right here, have longhorn cattle and still are 10 in that business, as well as organic fanning business. 11 And, of course, the Smiths have cattle and 12 a ranching business here. The Dukes have a private home 13 situation in retirement and they do their own little 14 farming area. And I believe it's Todd -- no, maybe Shawn, 15 Shawn and his wife who are the Smith's son and 16 daughter-in-law are co-farmer people with the Smiths, so 17 they are the Smith's farming interest right there. But, 18 again, that's all under the Smith's name for the two major 19 properties there. 20 COMMISSIONER KEITH: And what was it you 21 said about the property on the back side? 22 MS. PeeLE: EXCUSe me? 23 COMMISSIONER KEITH: who's the company that 24 owns the property on the back side? 25 MS. PeeLE: It's shown on your backups Page 1 1 probably as Braywood. At the time we were going through 2 several processes a couple of years earlier, and I believe 3 it was '99, it was known to us as Intermandeco/Mesa Group. 4 And they also have properties down on Ryan Road. 5 COMMISSIONER KEITH: SO you're indicating 6 there's a conflict in opinion on this within -- 7 MS. PeeLE: NO. Like I say, we don't 8 understand -- I understand Mr. Smith does have a phone 9 call into those because we only learned about 4:30, a 10 quarter to five tonight that they had sent in an 11 opposition vote. And in the prior two times that they had 12 spoken with them, I'm speaking of the Smiths speaking with 13 them, they had sent in a no problem, we would approve. 14 COMMISSIONER KEITH: okay. Thank you. 15 MS. POOLE: Thank you. 16 COMMISSIONERRISHEL: commissioner Apple. 17 COMMISSIONER APPLE: Yes. Ms. Peele, I'm 18 just - I'm perplexed and I'm wondering if you could help 19 me out. 20 MS. POOLE: sure. 21 COMMISSIONER APPLE: I've been sitting on 22 this body for five years and you have probably come before 23 us on more than a dozen occasions to violently oppose 24 exactly this sort of thing saying that it was dangerous 25 for the children crossing over to North Lakes, saying that PLANNING AND ZONING COMMISSION MARCH 2TI'H, 2002 Page 9 - Page 12 CondcnsoltTM Page 13 1 it was a residential neighborhood, saying that it would 2 ruin the value of your home, saying that that street was 3 not made to handle that kind of traffic, and, you know, a 4 violent opposer of anyone ever trying to do anything on 5 this street. What has changed? 6 MS. eOOLE: The whole thing that has 7 changed is the fact that UNT has changed the whole 8 complexion of our neighborhood. As you will obviously 9 see, that we had not come in before you during all the 10 time that the Comprehensive Plan zoning changes were going 11 in place up until the time that we were made aware that 12 UN~r had purchased that Property. That is going to change 13 the fact that Bonnie Brae had been, even though it's an 14 arterial street, it's going to change it to be a very busy 15 street as a main thoroughfare between those two campuses. 16 We also feel like that as citizens and as residents who 17 live facing Bonnie Brae, it's going to be very dangm'ous 18 for us to even consider it being single-family. It 19 certainly will never been usable as a single-family home 20 to anyone else. I mean, we are there because we own the 21 land now. i22 And, yes, we woe very violently opposed 23 because at the time that we went through, and I know the 24 Smiths will stand here and back me up, we stood hoe as 25 the Westgate Home Association and very violently approved Page 14 1 having that much density on that PD for the very reasons 2 you're stating, that it's going to increase the number of 3 people, now that was people living all the way around 4 that. 5 This property to this point in time has not 6 been developed. We have no idea, at least I have no idea 7 when that development is going to occur. I thoroughly 8 believe that with the economy being what it is, it's only 9 God's guess as to when that company will find the 10 opportune time to develop that. And, certainly, no one 11 has a crystal ball as to what's going to happen in any 12 part of our City. I had fought long and hard behind the 13 scenes to try and retain the Agricultural zoning districts 14 within our Comprehensive Plan for this very reason, that 15 no one has a crystal ball. We cannot foresee four to five 16 to two years out what development is coming in that will 17 change the complexity of a neighborhood, and we need to 18 have that flexibility within our zoning opportunities in 19 any community and with any block. 20 COMMISSIONER APPLE: well, I was just very 21 concerned because you have always opposed anyone else 22 using their property to try to, you know, further the use. 23 And so now that it was your property, I found it 24 interesting that now you're on the complete other side. 25 And as far as the UNT, I know a lot of that Page 15 1 -- it's my understanding it's going to be used for office 2 space and administrative purposes. 3 MS. POOLE: There will be students there. 4 COMMISSIONER APPLE: But I don't think it's 5 going to be any, you know, huge -- it would be more 6 accessible for a lot of those to just go off the freeway 7 onto the main read that it's on as opposed to coming up 8 your way. I'm sure some might. 9 But I was just very -- I was so, so l0 surprised when I read this because of you -- MS. POOLE: I'm sure you were. I thought 11 12 about you when this was coming up. 13 COMMISSIONER APPLE: Because of your 14 history. Thank you very much. 15 MS. POOLE: Yes. No problem. And, again, 16 understand, I am a non-traditional current student at UNT 17 right now so the old lady on the block is standing down 18 there going, oh, my God, because I fight traffic every day 19 just going from my house into getting into the campus. 20 COMMISSIONER RISHEL: commissioner Mulroy. 21 MS. POOLE: Excuse me? 22 COMMISSIONER RISHEL: commissioner Mulroy 23 has a question for you. 24 COMMISSIONER MULROY: Yes, I do. And, Ms. 25 Peele, if you'll bear with me just for a moment. Page 16 1 MS. POOLE: NO problem. 2 COMMISSIONER MULROY: I want to get a 3 clarification from Mr. Reichhart. 4 MS. POOLE: YOU bet. 5 COMMISSIONER MULROY: Larry, on the 6 decision by Council to rescind that earlier designated 7 upzoniug and to bring it back through, my understanding, 8 and please correct me, is that they tried to delineate to 9 the level of upzoning and it was beyond two upzonings that 10 they felt they wanted to come back with a public process. 11 Was that the dividing point? 12 MR. REICHHART: correct. During the zoning 13 process for the whole City, any request that came in were 14 categorized in four different categories. This request 15 fell into what's commonly referred to as the A Category 16 because it was more than a two-category jump. And Council 17 did, at one time, reach a consensus to take it up. But 18 then at the next meeting thought that -- rescinded a 19 number of them, I believe there woe at least six, if not 20 more, with the idea that it would be better to take them 21 through the regular process to get the public input 22 because they were such a big jump. 23 COMMISSIONER MULROY: And this is part of 24 that group and this is -- 25 MR. REICHHART: This is the first of -- the PLANNING AND ZONING COMMISSION MARCH 27TH, 2002 Page 13 - Page 16 CondcnseltTM Page 17 1 next one on the Agenda falls under that, then you'll see 2 at least two next week, too, in two weeks. 3 COMMISSIONER MULROY: Okay. And this is a 4 Council-initialed zoning request and you're not paying any 5 fees, are you, Ms. Poole? 6 MS. POOLE: NO, sir. 7 COMMISSIONER MULROY: Okay. Now my 8 question is -- 9 MS. POOLE: we're doing what Council told 10 us to do. i 1 MR. REICHHART: Can I clarify because I 12 don't -- it's a little misleading to say it's a 13 Council-initiated zoning. The Council said upon receipt 14 of a zoning application, the City would waive any fees 15 associated with this zoning, but it's not a City-initiated 16 zoning. And there's a big difference. 17 COMMISSIONER MULROY: Okay. And that's the 18 clar/fication I was looking for. Okay. Thank you very 19 much, Mr. Reichhart. 20 Ms. Poole, my question for you would be, 21 would an NRMU-12 be satisfactory to your group? 22 MS. POOLE: well, I don't -- have not 23 spoken with all of the people in my group but I would 24 assume that that would probably be an acceptable mediary. 25 And I will let each of them come up and speak to that, if Page 18 1 you'd like, because they're all here tonight except for 2 the one family. 3 COMMISSIONER MULROY: okay. And then we 4 want to be conscience of your time as the applicant, too. 5 MS. POOLE: Yes. So if I'm out of time so 6 they can all have a little moment to speak, I'll shut up. 7 COMMISSIONER MULROY: okay. Thank you. 8 COMMISSIONER RISHEL: we still have another 9 question. Commissioner Roy. I 0 COMMISSIO~mR ROY: actually, my question is 11 for Larry. In our backup, it said it's been brought to us 12 because Council was concerned about adequate notice being 13 given. So I think that's a correct -- that's an important 14 point. 15 MS. POOLE: Yes. And at that time we had 16 all the people surrounding us and, again, you will see it 17 in your backup that all the people that arc involved in 18 this were in support, as well as a verbal support by the 19 PD group. 20 COMMISSIONER RISHEL: Thank you. 21 Commissioners, any further of questions of Ms. Poole? Ms. 22 Poole, would you care to introduce the other part of your 23 petitioners? And I say that, we've used six and a half 24 minutes of your presentation time, I don't know how much 25 they'll need but I just want to point that out. Page 19 1 MS. POOLE: Perhaps John Smith who owns the 2 largest share of the eD land would like to come down and 3 speak and verify what I've tried to support. This is John 4 Smith. 5 MR. SMITH: Ladies and gentlemen of the 6 Planning and Zoning, I'm John Smith. I live at 3309 North 7 Bonnie Brae. I'm, I guess, the owner of the larger tract, 8 30 acres. And the main thing we're asking for is fair 9 zoning. I mean, there is no zoning around us very close 10 that is NR-2. ^nd that across the road, of course, is 11 NRMU-12. 12 And so we thought that -- I mean, we just 13 needed to be compatible with the land around us. I am not 14 trying to sell the property at present but the zoning we 15 had, of course, was Ag and the Ag was fine. But then when 16 they changed it to NR-2, that's sort of scary because 17 there's not any areas out there hardly that have two 18 houses per acre. And I understand this is what that 19 zoning requires. And so we would just like to be treated 20 fairly and have zoning equal to the zoning that's around 21 us. And this is our main reason for the petition. And do 22 you have any questions? ,23 COMMISSIONER RISHEL: conunissioners, any 24 questions of Mr. Smith? Thank you, Mr. Smith. Anyone 25 else in your group that would like to be part of the Page [ 1 petition speaking part, if you'd please come forward at 2 this time. 3 MR. DUKE: My name is Wallace Duke and I 4 live at 3315 North Bonnie Brae. And I think everything 5 has been said that needs to be said so I approve. Thank 6 you. 7 COMMISSIONER RISHEL: Thank you, sir. Once 8 again, anyone else who was part of the petitioning group, 9 if they would care to speak at this time? Okay. Anyone 10 who would like to speak either for or against this item on 11 our Agenda, if you would come forward at this time. 12 Anyone who would like to address the Commission either for 13 or against this item, if you'd come forward at this time. 14 Once again, this is a public hearing. 15 Anyone who would like to address the Commission regarding 16 this item on our Agenda, if you'd come forward at this 17 time. Seeing no -- 18 MR. SMITH: one thing that I forgot, my 19 wife -- I didn't -- 20 COMMISSIONER RISHEL: would you come 21 forward and address us at the podium? 22 MR. SMITH: I'm sorry. I was trying to 23 save time and so I forgot about -- but my wife talked to 24 Intermandeco. This was, oh, prior to when we were trying 25 to get it through the City Council. And they verbally ?LANNING AND ZONING COMMISSION MARCH 2TI'H, 2002 Page 17 - Page 20 CondenseIt m Page 21 1 approved and I don't know what has happened. I tried to 2 call thmn today after I found out that they were in 3 disapproval and I don't know what has happened and I want 4 to know. But they have much more than, you know, two 5 houses per acre so I don't know what their problem is but 6 they did approve it v~rbally, but they would not give us a 7 letter, but they approved it verbally back in January, the 8 middle of January, something like that. 9 COMMISSIONER RISHEL: Thank you, Mr. Smith. l0 MR. SMITH: Thank y, ou. 11 COMMISSIONER RISHEL: once again, anyone : 12 else who would like to address the Commission regarding il3 this item on our Agenda? Anyone else? Seeing no one else 14 that would like to address this item, and I have had no 15 one that addressed in opposition so we will not need a 16 rebuttal from the petitioner, if I could get our staff 17 person, Mr. Gray, to review for us where we are and 18 specifically the 20 percent rule. Excuse me, Commissioner 19 Mulroy. 20 COMMISSIONER MULROY: YeS. Thank you for 21 recognizing me, Chairman. P~rhaps I wasn't paying 22 attention, but would Ms. Poole state for the record 23 whether the NRMU-12 would be agreeable to her and the 24 group? 25 MS. POOLE: I can only talk to the three avenues. question. question. Page 22 1 folks that are here because the fourth owner of the 2 properties is not here, they are ill, I feel that they 3 would be willing to go along with us, but we are all in 4 approval to take NRMU-12 if that is a compromise that the 5 Commission feels is appropriate. 6 COMMISSIONER MULROY: well, I don't know 7 about compromise. I'm just looking for reasonable 8 Thank you, Ms. Poole, for answering my 9 10 i1 COMMISSIONER APPLE: Keep her for my 12 COMMISSIONER RISHEL: commissioner Apple. 13 COMMISSIONER APPLE: I have a question of 14 either Ms. Poole or Mr. Smith, either one. 15 COMMISSIONER RISHEL: woLlld you join us? 16 COMMISSIONER APPLE: whoever wants to trek 17 back to the podium. Thank you. We're giving you your 18 exercise. 19 MS. POOLE: I need this exercise. 20 COMMISSIONER APPLE: My question, I just 21 want to make sure because the NRMU-12 does permit 22 multi-family just across -- so y'all no longer have a 23 problem with multi-family in that neighborhood? 24 MS. POOLE: I believe what they would 25 probably do in this, because it's not only multi-fmuily Page 23 1 but it's office commercial thatis also accepted within 2 that zone as I understand it, is just a little bit less 3 opportunity. Perhaps, Mr. Reichhart can confirm that. 4 But, no, I believe that that would be fine because I 5 really foresee, in my perspective, that the frontage of 6 that land would probably be what I would call a pure 7 commercial office professional. 8 COMMISSIONER APPLE: well, actually, in my 9 thinking, if you're correct about all the students, it 10 would be an ideal place for student apartments. 11 MS. POOLE: And, of course, across the 12 street, which Mr. Rayzor owns, would also. But as -- my 13 thinking is that with the multi-family zoning also in 14 place across the street, there is a very need, much of a 15 need there for NRMU which is a little better commercial 16 opportunity to serve that neighborhood as a neighborhood 17 center. 18 COMMISSIONER APPLE: But that would be 19 totally up to whoever developed it? 20 MS. POOLE: Exactly. 21 COMMISSIONER APPLE: I just wanted to make 22 sure that everyone who is so in favor understood that that 23 was included. 24 MS. POOLE: Yes. Well, none of us feel 25 like that long term, and no one is saying that -- no one Page 24 1 has got an offer, no one expects an offer tomorrow or the 2 next day or the next year, but at the time when it does 3 happen to come, none of us plan to live here forever in 4 that area just because it's no longer a single residential 5 family situation. I have grandchildren that come out 6 there and I certainly don't want them playing on that 7 street. 8 COMMISSIONER APPLE: SO the answer to my 9 question is y'all do not have a problem with the 10 multi-family? 11 MS. POOLE: I don't and I can only say that 12 the rest have said NRMU~12 is fine by them and I believe 13 they understand that, too. 14 COMMISSIONER APPLE: okay. Thanks a lot. 15 MS. POOLE: You're welcome. 16 COMMISSIONER RISHEL: Mr. Gray. 17 MR. GRAY: staff has no further comments. 18 I'll be happy to answer any questions. 19 COMMISSIONER RISHEL: Let me close the 20 public hearing then. Any further questions of Mr. Gray? 21 And I see a light from Commissioner PowelL 22 COMMISSIONER POWELL: Thank you, Mr. 23 Chairman. This is a question for staff and maybe it woul¢ 24 be Mr. Gray or maybe Mr. Reichhart, I'm not sure, 25 whichever wants to jump in here. Describe to me the PLANNING AND ZONING COMMISSION MARCH 2TrH, 2002 Page 21 - Page 24 CondenscltTM Page 25 1 differences or difference in the intended use in NRMU-12 2 and NRMU. what does that 12 really mean? Or help me out 3 here. I can look in the book and see the numbers but 4 what' s the intent? 5 MR. REICHHART: The intent is that an NRMU 6 district is the more intense of the two and it really 7 should be the eom of a neighborhood center. And that 8 does allow for multi-family development with an suP. I 9 believe it's 30 units per acre that you could develop that 10 if you got the additional approvals. But the intent, 11 basically, is you start at the core with the NRMU. YOU :12 support that a little bit with NRMU-12 which is very 13 similar but just lighter, if you will. The density is 14 less. It's 12 units per acre. Typically, the size of 15 retail establishments are a lot less, you know, in the 16 5,000, 4,000 square foot range as opposed to 10,000 to 17 15,000 in the other district. 18 So the intent is really that it's supposed 19 to be a small area that would be the node of your 20 neighborhood, and then you'd develop around it with the 21 single-family and multi-family residential to support that 22 node. 23 COMMISSIONER POWELL: Thank you. Very good 24 description. Thank you. 25 COMMISSIONER RISHEL: Thank you, Mr. Page 26 1 Reichhart. I have several cards from either people in our 2 audience that may have not wished to speak or just filled 3 out cards. One from Martha Duke and she indicated that 4 she was in support of it but did not wish to speak. 5 One from William Darby. Once again, that 6 he was in support of it but did not wish to speak. And 7 then I have a card from Sherri Darby who was in favor. 8 She did not wish to speak but indicated that she wanted us 9 to consider the consistencies in the other locations 10 around them. 11 Okay. Commissioners, any further questions 12 of staff?. And we have closed the public hearing. 13 Commissioner Powell. 14 COMMISSIONER POWELL: Thank you again, Mr. 15 Chairman. You mentioned earlier that you were going to 16 get Mr. Gray to describe that 20 percent rule and how it 17 affects us. 18 COMMISSIONER RISHEL: Mr. Gray. 19 MR. GRAY: okay. The 20 percent does not 20 affect the Planning and Zoning Commission. It does affecl 21 City Council. What it basically means is that if 20 22 percent of the land area is in opposition, the land area 23 within 200 feet of the subject property is within 24 opposition, then at theix meeting, City Council must 25 approve the zoning request by a super majority of six Page 27 1 votes as opposed to a simple majority of four votes. The 2 20 percent rule, however, does not affect the Planning and 3 Zoning Commission as to the number of votes they require. 4 COMMISSIONER RISHEL: Thank you, Mr. Gray. 5 Commissioners, any further questions, comments, a motion? 6 Commissioner Mulroy. 7 COMMISSIONER MULROY: Yes, Mr. Chairman. I 8 make a motion -- I'd like to make a motion to change file 9 zoning of the subject property to NRMU-12. 10 COMMISSIONER RISHEL: commissioner Keith. 11 COMMISSIONER KEITH: I'd like to second the i12 motion, please. 13 COMMISSIONER RISHEL: It' s been moved by 14 Commissioner Mulroy and seconded by Commissioner Keith. 15 Any further discussion or comments? Commissioner Apple. 16 COMMISSIONER APPLE: I'll be voting against 17 the motion. I don't necessarily agree with the premise 18 that since somebody else did it, let's just say to heck 19 with the -- you know, there goes the neighborhood so let's 20 just do some more of it. It still is very predominantly a 21 single-family neighborhood. It is directly across the 22 street from NR-2. It is adjacent to NR-2. trod at the 23 very least, I would think that with the recommendation 24 that these areas not be larger than ten acres and that 25 this one is four times that size, I just can't in good Page; 1 conscience vote for that. 2 COMMISSIONER RISHEL: Thank you, 3 Commissioner Apple. I have some concerns also and in this 4 particular case will be voting against it. I appreciate 5 the direction that City Council is going as they make 6 changes on things and notification to the public, that we 7 try to do these in increments of what we would consider 8 two steps of zoning classifications. I think that not to 9 have proper notification of specifically where we're going 10 with this is a disservice to the public. So Pd like for 11 people to be as informed as possible about where we are 12 and how we go about changing the map. 13 I think it's a dynamic document and it 14 needs to be flexible, but in this particular case, I would 15 like to see us looking at things that have a little bit 16 more concrete direction that this piece of property could 17 go and perhaps a developer come forth with it in the 18 future. And I know we could probably take this both ways 19 but I think we give better notice to the public when we 20 have something that's a plan that might be a direction 21 that might be more final as opposed to dreaming what this 22 could be or couldn't be in the future. 23 Any further comments? Seeing no further 24 comments, if you'd please vote on the motion. Motion 25 carries 4-2 of the Conunissioners present. Thank you, PLANNING AND ZONING COMMISSION MARCH 27TH, 2002 Page 25 - Page 28 8 9 12 13 14 15 16 17 18 19 20 21 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 CondcnscltTM Page 29 ~ Page 31 [ Commissioners. (COMMISSIONER APPEL AND RISHEL VOTED IN OPPOSITION.) bring us to Item No. 8 on our Agenda. Item No. 8 is ~ hold a public hearing and consider making a to City Council regarding approximately 5.0 acres from a 4, which is NR-4 zoning district, to a Residential Mixed Use 12, district. The is east said of Hi 377, Chipping Campden MS. VIERA: applicant is requesting NRMU- 12 backup, the Denton Plan. having the north of is proposed. Commission. The change for NR-4 to staff has 377 developed as a planned development. However, the staff also along Highway 377 are v~ As outlined in your compatible with the about of a more as a single-family· And because there's an absence of neighborhood services in that particular area, the idea of having a new neighborhood service provided is, we believe, that is in compliance with the plan. One property owner within 200 feet sent a in favor of the request. No opposition so available to answer any questions that t. ISHEL: any ql Thank you, Ms. Viera. petitioner here would they like to If you would p name and ~ Jefferies. I'm the owna Mr. Chairman. Good h~re last time to -- you I will do my best to In to a letter Hills I have talked to the is Mr. the north side of the He is ab., ' in favor. The property is very small in size. five-acre land. And in the area here :here to provide these neighborhood centers : citizens who live in the area. I thought that this would be one of the better locations to just service the citizens in the area for professional services and small Lan Good evening, of P&Z. I have been :. I'm here speaking; however, 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 4 5 6 7 8 9 10 11 12 13 t4 15 16 17 18 19 20 21 retails. So I will try to do my best to answer your uestions, if you have any. COMMISSIONER RISHEL: commissioner Appl COMMISSIONER APPLE: what type of see there? The businesses I there such professional building, for you or dentist or lawyers .ccountants, that kind of 'the people in thc could come by, and d of services. not thinking more of of a convenience store. neighborhood services? things like that or hair salon, that why I'm controlled pretty services and de to do a thing. You because that's because limi~t, very development perspective, ~ engineering ~nd also from the size, you can control a development that way. COMMISSIONER APPLE: And you see the as being attractive and going along with the MS. JEFFERIES: Yes, exactly. COMMISSIONER APPLE: okay. Thank you. in on the Mr. Larry blessing that answering my also from the -- that, so I have been months. COMMISSIONER RISHEL: commissioner COMMISSIONER MULROY: Yes, Ms. to ask if you were familiar with standards and fully aware of the it would develop? EFFERIES: Yes. I have and I have been and the staff. of Denton expert or workable Ms MS. tge manner of time to see a very useful in perspective and the goals on up for the last many okay. I'm I'm an Jut I try my MULROY: it's very then? JEFFERIES: Yes. Yes, sir. MULROY: Thank very much, COMMISSIONER RISHEL: Any further Commissioners, of Ms. Jefferies? very much, Ms. Jefferies. MS. JEFFERIES: Thank you, sir. PLANNING AND ZONING COMMISSION MARCH 27TH, 2002 Page 29 - Page 32 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FROM NEIGHBORHOOD RESIDENTIAL 2 (NR-2) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION TO NEIGHBORHOOD RESIDENTIAL MIXED USE 12 CNRMU-12) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR APPROXIMATELY 37 ACRES OF LAND GENERALY LOCATED ON THE WEST SIDE OF NORTH BONNIE BRAE ROAD NORTH OF WINDSOR DRIVE AND SOUTH OF NORTH ELM STREET; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE, (Z02-0007) WHEREAS, Joyce Poole, on behalf of Adam Kunzman, Eric and Marla Fullerton, Wallace B. Duke, and John and Dorothy Smith, initiated a change in zoning for approximately 37 acres of land from Neighborhood Residential 3 (NR-2) zoning district classification and use designation to Neighborhood Residential Mixed Use (NRMU) zoning district classification and use designation; and WHEREAS, on March 27, 2002, the Planning and Zoning Commission concluded a public hearing as required by law, after which the commission recommended approval of a change in zoning to Neighborhood Residential Mixed Use 12 (NRMU- 12) zoning district classification and use designation; WHEREAS, the City Council finds that the change in zoning is consistent with the Comprehensive Plan; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The zoning district classification and use designation of the approximately 37 acre property located on the west side of North Bonnie Brae approximately between Windsor Drive and North Elm Street, surrounded on the north, west and south sides by the Planned Development 115 (PD-115) zoning district, and legally described as Tracts 30, 31, 32, 34 and 35 in the N. Wade Survey, Abstract No. 1047, Tract 1 of the F. Batson Survey, Abstract No. 43, and Lot I, Block 1 of the John Smith Addition and as shown on the map attached hereto and made a part hereof as Exhibit "A", is hereby changed fi:om Neighborhood Residential 2 (NR-2) zoning district classification and use designation to Neighborhood Residential Mixed Use (NRMU-12) zoning district classification and use designation under the comprehensive zoning ordinance of the City of Denton, Texas. SECTION 2. The City's official zoning map is amended to show the changes in zoning district classifications. Page 1 of 2 SECTION 3. 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 4. 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 5. This ordinance shall become effective fourteen (14) days fi.om the date of/ts · 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 ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBE~Y,.x ~~ CITY ATTORNEY BY: Page 2 of 2 EXhibit A ~_ 'RCC'D PD.tfS NR. 2 NR.2 Agenda 02-021 06/18/02 #39 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: June 18, 2002 Planning Department David Hill, 349-8314 SUBJECT - Z02-0005: (Elm Courts) Hold a public hearing and consider adoption of an ordinance rezoning approximately 0.8 acres generally located at the southeast corner of Taliaferro Street and Elm Street, from a Neighborhood Residential 3 (NR-3) zoning district to a Neighborhood Residential Mixed-Use (NRMU-12) zoning district. Attached single-family dwellings are proposed. The Planning and Zoning Commission recommends approval (7-0). BACKGROUND Applicant: Karen Mitchell, Fort Worth, TX The applicant is proposing to develop attached single-family dwellings. The NRMU-12 zoning designation would allow a maximum of 9 attached dwellings units located on a common lot. A variety of housing uses, including multifamily, and neighborhood services would be also permitted. As of this writing, staff has received three (3) responses in opposition to the request from property owners within the 200 feet notification boundary. Currently, 10.08% of the land within 200 feet of the subject property is in opposition to the request. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval (7-0). ESTIMATED PROJECT SCHEDULE The subject property is not platted. A final plat is required prior to the issuance of any building permits. PRIOR ACTION/REVIEW The following is a chronology of Z02-0005, commonly known as Elm Courts: Application Date - DRC Date- P&Z Commission- Neighborhood Meeting February 20, 2002 March 7, 2002 April 24, 2002 May 22, 2002 None FISCAL INFORMATION Development of this property will increase the assessed value of the city. As a form of infill development, no extension of public infrastructure is necessary to service this site. ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification (Property Notification Map and Property Owner Responses) 4. Photographs 5. Planning and Zoning Commission Minutes, May 22, 2002 6. Draft Ordinance Prepared by: Deborah Viera, AICP Planner II Respectfully submitted: Douglas S. Powell, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary_ of Zoning Request The applicant is proposing attached single-family dwellings. As the subject property is less than 2 acres, the minimum lot area of 3,500 square feet (Sec 35.5.2.3). This would allow for a maximum of 9 attached dwelling units on this property. A variety of housing uses, including multifamily, and neighborhood services would be also permitted. A previous zoning request for a Multi-family 1 (MF-1) zoning designation for the subject site was heard by the Planning and Zoning Commission in December 2001. After the continuance of the public hearing, the property owner withdrew the zoning application. Existing Condition of Property_ Property History. February 20, 2002 - The subject property was placed in the Neighborhood Residential 3 (NR-3) zoning district and land use classification by Ordinance 2002-040. Prior to the adoption of the Development Code, this property was zoned One-Family Dwelling 7 (SF-7). Adjacent zoning. North: Neighborhood Residential Mixed-Use 12 (NRMU- 12) South: Neighborhood Residential 3 (NR-3) East: Neighborhood Residential 3 (NR-3) West: Neighborhood Residential Mixed-Use 12 (NRMU-12) The subject site, located at the southeast corner of Taliaferro and Elm Streets, is surrounded to the east and south by single-family uses. The existing single-family units are predominantly one-story small structures. Across the street, to the north and the west, commercial and office uses are located. Multifamily uses are located at the south end of street block. The City Council directed Planning staff to initiate a small area plan for this area, if there is sufficient input from the neighborhood and if the neighborhood wants to pursue it. Comprehensive Plan Analysis The subject site is located in an "Existing Neighborhoods/Infill Compatibility" future land use area. One of the primary residential land use principles is the preservation of existing and future neighborhoods. This can be achieved by demanding high-quality development and establishing design and construction standards that are fair and evenly applied. New development in this area 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. The Denton Plan lists the following four criteria that should be taken into account to determine appropriate site-specific residential densities: design quality, adequacy of public facilities, amenities provisions and compatibility with existing neighborhoods. Attached single-family units will be compatible with the existing uses. However, the density is a factor that should be considered closely. Developmem Review Analysis Transportation A maximum of 9 attached single-family units would generate approximately 85 trips per day. This is 60 more trips per day than the traffic that would be generated if the 0.8 acres were developed according to the NR-3 zoning designation. Access. The proposed developmem will be required to take access from Taliaferro Street. Road Capacity The DeNon Mobility Plan idemifies Taliaferro Street as a local street. This street is designed to be a two (2) lane undivided street without parking. As such, its designed traffic capacity allows for a tolerable traffic flow of up to 9,100 trips per day. Taliaferro Street in its currem condition is a substandard street. No traffic coums are available for this road. Improvemem to Taliaferro Street will be required through the platting process. Developmem Code/Zoning Analysis Attached single-family dwelling units are allowed in multiple zoning districts besides the NRMU-12 district. The existing NR-3 zoning designation allows attached single-family units if a Specific Use Permit (SUP) is grained. Only NR-6 and NRMU-12 zoning districts allow attached single-family uses by right. The difference between these three zoning districts is the density that would be permitted. The following chart provides a comparison of number of attached dwellings allowed for this property according to the NR-3, NR-6, and NRMU-12 zoning districts. Zoning Permitted by Minimum Lot Size Density (Max.) District for this Property (S.F.) NR-3 SUP 10,000 3 NR-6 Right 6,000 5 NRMU-12 Right 3,500 9 The proposed NRMU-12 zoning designation will also allow multi-family uses by right with a maximum density of 12 units per acre. The developmem of the site for multifamily uses will anchor the street block with multifamily uses at both ends of the block. This could potemially promote future developmem of existing single-family lots to multifamily developmems within the face of this block. The subject site is surrounded by NRMU-12 zoning district along the three comers of the Taliaferro and Elm imersection. (See Attachmem 2) The subject property is the only comer zoned for single-family residemial uses. Any proposed developmem on this site is required to be in compliance with the site design standards of the Developmem Code. An approved site plan for the proposed developmem will be required prior to the issuance of any building permit. Staff Findings 1. The proposed attached single-family units are compatible with The Denton Plan and surrounding land uses. 2. The subject site is the only corner at the Taliaferro and Elm intersection zoned for single- family residential uses. ATTACHMENT 2 Maps NORTH Location/Zoning Map Scale: None NORTH Land Use Map Scale: None ATTACHMENT 3 Public Notification NORTH Notification Map Newspaper Notification Date: April 13, 2002 200' Legal Notices* sent via Certified Mail: 500' Courtesy Notices* sent via 1st Class Mail: Number of responses to 200' Legal Notice · In Opposition: 3 · In Favor: 2 · Neutral: 1 Percent of land within 200' in opposition: 22 83 10.08% Scale: None *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 Property Owner Responses Property Owner Name and In favor Comments Address /opposed* Nathan & Christina Richards, Opposed No comments. 2201 N. Locust Corinne Smith, Neutral No comments 2300 N. Elm St., 112, 114, 116, & 118 Taliaferro St. James Kevlin Opposed Same as apartments. Will lower property 2210 N. Elm St. values. Diana Hatch, Opposed See attached letter. 2117 N. Locust John C. Johnson, Favor No comments. 2204 N. Elm James W. Owens, Favor No comments. 2226 & 2309 N. Locust St. Victor L. Lea, Opposed Low cost and multi-family attached houses 2111 N. Locust lower the property value in any neighborhood. (Outside 200 ft.) *A copy of the original notice can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ii;em 21 TN,, :~. boeus~;SL 94(!*gB%57fig ~ sm opposed ia dm mq/aest to rezone kmd al; Ta!iaferro add N~ Elra fi>om NI;U3 NRMU~ t 2. pertained b} NRMU-t 2 that ~ [mia iower :iBc quaf[ity' ot'~[fe :in my neigl~borhood~, e.g., a cmwenieace store, r~her retail, a sembpub~i:c club, a ~aua.dry:, ~md muh:i-Sm~ily ~l~,~si: a :l?~,w moniJ~s ago,, a si.mi!ar application was made fl:~r a:n apa~meat bu:i!di:ag on ~his sit~, ~D~e app~iean:t had asked fo~ m~ch gram. er densffy lhan e¥~n Mu~ti-F~mily would. be aBo~¥e& ar, d muitidkmiiy a.pa:rm~en:!s or a co:nve, ni:e:r, ee sr[(;}~ ¢OU}ld be Co~midedng ~e ]~:ia.tory o.l'dnfs applicati:oa I :lTcci ~hal: w.~ shouM :no,t :rdy o~ ~[3e In addition, if!bis p~,ogod, y is :re~os~.-a lo NRM U-12, tl'~a~: wmdd make multi-family uses Where wil~ ~he spread o<fhigi:~tr den;si!y h,~t,o my neighborhood; My :neigl:~l:x>rhq~od is made t~p of fa:mill,es, re~i:red people, and. >oung adults wl'm d~osen m live [n~ a ti~e~: neighborhood, The designa~k:,'~ of Loous~ and Elm S;!;ree~:s as highway 77.: and ~l~e c~mnges d~a.t ~:~iil bri~g~ ~s expected m :al~:e:r' flow (mM t~us ll-~e noise l:evell v~i~ lib:ely :i~erease ~8k~.., de~mf~y h. ousing abc comes hm]'~, densi~>' b:ui[d, ad.s are: ip,caterl_ ,, aex~. to ;single, Jhmiiy homes,. This appl:icai;jor~ asks :muct~ sbuld we expect a, n eighbod:xx:,d t:o wi~hs~aa.d before it preach'ed." Pmserva:[io~ cOl;his neigl~borl~ood rests wi~;h e~co~.m.g,i~g singledhmily, io'w~ hm~s[n;g. 'the d~nsit> pr~:~pos, ed :[:kXr this project ~s :hmppropfiate, a~d will [ea/d i.o deteri0ra!io~, of my nei:~hb;.~rhood:, Please keep :~e z~m~ng as NR-3 m~d help us and preser~, e o't~r exist:ing ae:ighN;u ~x~l, 10 2117 N~ Lr~as't St, Denton~ TX 76209 940~383~5769 'May 23. 2002 To: Der~ton Cily ('o~nci] I ,a'o~l:d like lo appear the 4~islon of~e P!mning & ZoNng Board at the May- 22 meeting m rezone 0.8 acres f~'om NR-3 ~o NRMU-~2 a~ ~e ~omer of Ta[iafe~o aa:d No~h Elm (Z02-0085, Elm This !a!~d would beaome '[he .~¢ond ~rcel oa my block to become multi-f~i}y (lhe first predates my ~eside~ce in Denton}. Bo0~ ~cels t:=e at opposite ends oran ovc~whdmingiy si ngk-fhmily Nook. I am concerned thru the deve]opem (who ah~ady ou~ the inte[vm,iag k>ts)will aaempt to "square-uP" !he ~rdera and make Ihe entire wesiem half oft}re block multi-~ami:ly,~ "Fhis mzoning will cm~;a a domino effeci lbs will put high.density housing (N~,IU~I2} directly adjacent to many NR.3 l,~tmily homes, The noise tha! higher density bri~lgs wi~] be ]'mp~a~iag righl across my back fence Tha! will direcdy impact my thmi[y, ou¢ pfiv~acy, and our quality ofli[~, I bou~ my tmme b~m;se it was zoned singk:-famity and was some distance fk~m maltJ-f~mi~y uses in neighbm'hood. A~] bul one of thc multM~m/ly uses were across a street and a block a.way. ~,¥e fell ~elativeiy safe. 'lhe Denion Plan slates Ihs existing ~e[~tborhoo~Is shin. lid [he vigorously protected prc~rvcd. I don't uMcr~t~d how incm~t~[ng ~ousiag density e[ih~t p~as or pleserve~s my ~ip~gle-family aeigb~l~rhood. The proposed nine housing 'unim would be k¢ated ~:he space normally occ~tpied ~y ~:wo ~o l:hme ]muses ia ~his neigl'&orhaod, Hi.er d~asity will increase the noise level and dec~xase my bactyar~l privacy (¢~'t~smpy m~m~ homes am p'rc¢osed~alimost all of the exisling homes, are O~m oldie deYelopeFs argume~ls was i[hat.: multbfamily was [ocatcd m the nomh ~md west of the property (across ~he s~r'eets), m what ditYerenee wou~d it make: if multi-bratty spend a ~i!:t!e fl~rthe~9 ] have to as& !his question: Where wi[! !he line be dm,wn, and !mw ,[hr wi[i m uIli-family zxming be al bwed to creep huo my nei ghborhood? P!anning S~aff. Karen Mitchell= agent for the applicant, staled that previot~$ goning for 11 my trove influenced ~ke decisioa~ of the Plangit~g & 7,4ming Board m rezone (The remaining east: and somh bordcm ofth~s propeay remain NR-3~) look k~rwa.rd ¢o discussing this innate[ with you, Sincc~re~ y, Dim~a Hatch 12 ATTACHMENT 4 Photographs 13 CondcnseItTM 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 25 COMMISSIONER RISHEL: That will bring us to Item No. 5 on our Agenda. Item No. 5 is regarding the Elm Courts and Ms. Viera, once again, will present. And, once again, this is a continuation of a public hearing. MS. VIERA: The applicant is requesting an NRMU zoning designation for the subject property to develop to nine attached single-family dwelling units on a common lot. The NRMU-12 zoning designation will also allow a variety of housing styles including multi-fmrfily, as well as neighborhood services. The Denton Plan identified the proposed use as compatible to the existing land uses. However, it is important to identify the density as a factor that should 1 2 3 4 5 6 7 8 9 10 11 12 13 Page 27 Taliaferro is located right here, our site being located here. As you will notice on three comers, we already have the NRMU-12 zoning designation. I have photographs that I would like to show you directly of what we have around us. But just to give you a summary, directly to the north of us on the first two lots, we have these, and I think they're very cute, little rock cottages. And these rock cottages are being used as a multi-family land USe. Just to the north of there approximately at this location all the way north on Elm is actually two paint and body shops. One is called Jim's Paint and Body and the other is Denton Paint and Body. To the south of be considered closely. As you have outlined in your backups, there are several zoning districts that would also allow attached single-family dwellings. However, the density would be lower than what is allowed on the NRMU-12. For clarification purposes on your backup, staff mentioned that a similar application was withdrawn. The reason why that happened is because when we were processing that application, we were in the transition stage between thc old Code and the new Code and the applicant agreed to reapply under the new zoning designations. If you have any questions, staff is Page 26 1 available to answer. 2 COMMISSIONER aISHEL: ts the petitioner 3 here and would they like to present? I will open the 4 public hearing at this time and we'll hear from the 5 petitioner. 6 MS. MITCHELL: May I have just a second to 7 set up rea! quick? Mr. Chairman, members of the Planning 8 and Zoning Commission, my name is Karen Mitchell. I'm 9 with Mitchell Planning Group, 7823 Nine Mile Bridge Road 10 in Fort Worth. As you already know, this is a particular 11 area of town that my client is looking at doing some' 12 redevelopment on some property here. 13 In the words of the staff, in looking at 14 the staff report, the City should demand high quality 15 development and she's absolutely right. The City should 16 demand high quality development which is what we arc 17 proposing to put on this piece of property. 18 The Denton Development Code that was 19 recently adopted has now placed these design standards in 20 place for this very purpose, and that is to help in 21 redesigning -- excuse me, in helping in redeveloping 22 properties, especially those that are in areas where I'll 23 refer to as a hodge-podge of land uses. 24 In this particular area, what I'd like to 25 point out to you-all is, this being Ehn Street and 14 here, we do have these lots right here that are being used 15 as single-family residential and then further south of 16 there we have multi-family. Now directly across the 17 street, we've got one single-family house. Again, this is 18 all zoned NRMU-12. We have two more structures that are 19 being used as multi-family, single-family, single-family 20 again, and then it shows that these are duplexes but when 21 I did an on-site visit it appears that they're actually 22 quadra-plexes that are located on these two pieces of 23 property. 24 At this time what I would like to do is 25 show you the areas that I'm talking about. Looking 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 Page 28 directly across the street from this site, it appears to be a single-family house. But when you look up close, it's difficult to see unless you actually get up here, behind the refrigerator you actually have three mailboxes which are A, B, and C. So this structure directly across the street is being used for multi-family. This is a side view of that same house. Right next door to this is another multi-family structure. This being a closer up shot of this piece of property. The rock cottages that I'm talking about, now this is actually -- this street that's located right here is actually Taliaferro right here and, of course, Elan Street is located over here, and these are the rock cottages. And as you can see from your backup information, there are a number of structures that are actually on this piece of property. And then just directly to the north, we've got the two paint and body shops. If we're looking at Taliaferro as part -- well, part of the little rock cottages, I did notice they even have a little mobile home back there, as well. I didn't know if we -- that's the first time I had seen that but that was when I was looking directly from our piece of property. When we're looking at the back part of our property, if you were to go behind these trees is where PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 25 - Page 28 Condcnsclt ~ 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Page 29 you're going to see the homes that face onto Locust. And then this last shot is actually looking down, this is Taliaferro, believe it or not, when it gets to our property almost right at our property line approximately in this location right here, is when it basically becomes a trail. And so it does not go all the way through to Locust Street. I don't know what the City's intentions are as far as it going all the way through to Locust Street, but on our piece of property, we will have to do all of our ingress and egress will be off Taliaferro. We will do road improvements on that portion of that that is adjacent to ours, but there will be no cut-through into Locust. I have taken some photographs of properties 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Page 31 our site is, and I believe that these two properties fight here that face onto Locust and the gentleman who owns this, I believe he lives in Flower Mound or Farmers Branch, but he did write a letter in opposition, and then these two arc within the 200-foot. I guess all I can say to this as far as their concern and opposition, when I drive out and I look at Locust Street, Locust Street does not have thc same kind of, again, what I refer to as hodge-podgc situation as we have over here on Elm. You do have predominantly single-family on both sides of the street. Whereas on Elm Street in this particular area, you have got just a combination of all different kinds of land use. And, again, we will do everything that we can to make sure that we're not having any kind of negative that we are -- that are similar to. This is actually what my client has in mind on putting at this location. I hope you-all can see that fairly well. It was nice when I was taking this picture, this gentleman actually came out and asked if I wanted to buy the whole complex. And I told him I appreciated it but it was just real -- this is what we're taking for tonight's meeting. Also, we have this right here. One of the comments that staff brought up was that fact that there are a couple of, a few different land uses that can actually go in this zoning district, Page 30 1 and it's single-family attached and multi-fmnily. There 2 are some neighborhood service type uses that can go in 3 this location but the applicant, who is my client, is 4 looking at putting this style. These styles right here, 5 the one that is located right here is single-fmnily 6 attached. The one that is located right here is 7 considered multi-family. 8 The land use of single-family attached and 9 multi-family, according to the ordinance, is basically the 10 same land use. The design is ahnost the same, as well. 11 And what it gets down to is the actual design criteria 12 that goes with it. For multi-family we've got more strict 13 design criteria that we would have to go with versus the 14 design criteria for single-family attached. This is .15 something at this time we have not gotten into the details i 16 as far as exactly which one of these that we want to do on il7 this piece of property. If we do go with either one, 18 there are safeguards in place in the Denton Development 19 Code that will demand us to make sure that the 20 single-family residential to thc east of us and to thc 21 south of us is protected. And we have all intentions of 22 doing that by doing the proper screening and buffering. 23 I do understand that we have had some 24 people in opposition to our request and I was looking at 25 where their properties are located in comparison to where 15 effect. In essence, what we're trying to do is add to the 16 property values in this particular location. 17 And with that, I'll be happy to answer any 18 questions that you-all may have. 19 COMMISSIONER RISHEL: commissioners, any 20 questions of Ms. Mitchell? Thank you very much. 21 MS. MITCHELL: Thank you. 22 COMMISSIONER RISHEL: For the purpose of 23 our discussion this evening, if you have -- would like to 24 speak before the Colmnission and have a specific item that 25 you'd like to address, if you would fill out a slip, a 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 32 card at the front of as you came in. We will address people regarding the cards that they have submitted. The next person who would like to speak is opposed to the proposal and I have a Diane Hatcher. Is Ms. Hatcher here? Would you please come forward and give us your name and address. Once again, anyone else who would like to speak before the Conmfission, if you would fill out a card that you'll find at the front as you came in. We would like to have you address us via that vehicle. Please. MS. HATCH: Good evening, Mr. Chairman and Co~mnission. My name is Diana Hatch, H-A-T-C-H. I live at 2117 North Locust Street in Denton. Almost two years ago, the Planning Board denied a request to rezone from SF-7 to multi-family a lot at the comer of Locust and Shomaan. I thank you for your action. A single-family home has since been moved onto that lot and I think it will be a good addition to oar neighborhood. Now another request for rezoning has been submitted for a property on my block. This request for rqRMU-12 zoning is at the corner of Taliafm'o and North Elm which would permit multi-family apartments, and conunercial uses. Please deny this request. This area of town is attractive for single-family homes. Several have been built here over the last two years. This block is predominantly single-family homes. If you approve this PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 29 - Page 32 CondcnscItTM Page 33 1 mzoning, I predict it will only be a short time before 2 thc entire western half of my block is built into 3 multi-family. 4 Many of the houses on the west side of the 5 block are rentals and are already owned by developers. 6 The noise that higher density brings will be happening 7 right across my back fence. That will directly impact my 8 family, our privacy, and our quality of life. 9 Although thc applicant has proposed nine 10 attached single-family units, if NRMU-12 zoning is given, 11 there's no guarantee that only single-family attached 12 units will be built. The project could be abandoned and 13 the land, now rezoned for multi-family, sold to a new 14 owner who would then not be obliga~l by any verbal 15 assurances given by the current applicant. 16 Attached singie-family is the same as 17 multi-family use in almost every sense. The density is 18 higher. They're not designed for owner occupation. They 19 will most likely not be lived in by the people who own 20 thcnu. The units are loca~t together on a common lot. 21 22 23 24 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 1 2 3 4 5 6 7 8 9 I0 11 12 13 14 15 16 17 18 19 20 Page 35 COMMISSIONER RISHEL: Thank you. MS. MITCHELL: Pm hoping that the information that I can share maybe will help Ms. Hatch out. Originally when staff sent the surrounding property owner notification out, they showed that our property actually crone down and was this little piece right here which, in essence, would be touching her property. And when staff went back and redid this, they did notice that this was not part of our property and, therefore, there is quite a bit of property between our site which is located here which, again, we're going to have to be required to put screening and buffering in, until you get to Ms. Hatch's property which is located over here. I don't know if that helps clarify or may help her in this but I did want to point out that originally when the surrounding property owner notification went out it was not shown as the proper location of where our property was in relation to her house. COMMISSIONER RISHEL: Thank you. NRMU-12 zoning would allow both of these similar uses plus it would open the door to retail uses such as a convenience store. Attached single-family appears to be a marketing term that seeks to make a project seem more benign than the term apartment complex. Page 34 The Land Use Plan states that existing neighborhoods should be vigorously protected and preserved. Please protect and preserve my neighborhood by denying this rezoning request. Locating nine Conunissioner Roy. COMMISSIONER ROY: Yes. Ms. Mitchell, would you be willing to include those typical pictures, those photographs that you had as somehow a commitment that this is typical of the facilities you're planning on 21 22 23 24 25 1 building? 2 3 4 question. Page 36 It would look similar to that. MS. MITCHELL: Absolutely. COMMISSIONER ROY: would you -- the second Would you be willing to commit to some deed single-family homes in the space normally occupied by two to three houses in this neighborhood will not help protect or preserve my block. It will increase the noise level, decrease our privacy, and damage our quality of life. In addition, it will be a stepping stone to the transformation of much of this block into multi-fmnily. How far will multi-family zoning be allowed to creep into my neighborhood? Thank you very much. COMMISSIONER RISHEL: Thank you very much. I have no other cards of persons that would like to speak before the Cormnission so I presume that there's no one else that would like to address the Commission on this either for or against Item No. 5 on our Agenda. Seeing no one else who would like to speak, I will close the public hearing and the petitioner will have an opportunity for rebuttal. MS. MITCHELL: Thank you, Mr. Chair. I'm hoping that the information -- COMMISSIONER RISHEL: Excuse me. Commissioner Roy. COMMISSIONER ROY: I'll hold. 5 restrictions that would commit to not putting things like 6 convenience stores or something, maybe a couple of other 7 things like that on this property? 8 MS. MITCHELL: well, I think -- 9 COMMISSIONER RISHEL: Clarification from 10 legal staff. 11 MS. MITCHELL: Right. I was going to -- 12 MS. PALUMBO: I just want to point out to 13 Con~nissioncr Roy that when we did pass the Denton 14 Development Code, we did away with conditional zoning, 15 placing conditions. 16 COMMISSIONER ROY: I'm not talking about 17 conditional zoning. I'm talking about deed restrictions 18 which would be -- 19 MS. PALUMBO: Yeah, and deed restrictions 20 are really not part of what can be considered in a zoning 21 request. The City doesn't enforce deed restrictions. 22 Whatever the property owner would want to voluntarily do i23 is up to them. But your considerations are on the zoning 24 request and our site design chapter assures some of these 25 quality control type things that you're wanting to get the PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 33 - Page 36 CondonseltTM Page 37 1 applicant to commit to. 2 COMMISSIONER ROY: Explain again why the 3 applicant couldn't, on their own, offer deed restrictions 4 to make this more acceptable to the area. 5 MS. PALUMBO: They could but the zoning 6 process isn't a place to ask the developer to make 7 commitments that are outside the considerations of the new 8 Development Code that we passed. 9 COMMISSIONER ROY: okay. Thank you. 10 COMMISSIONER RISHEL: YOtl still have the 11 floor though, Commissioner. 12 COMMISSIONER ROY: I yield. 13 COMMISSIONER RISHEL: Thank you very much. 14 Comanissioner Holt. 15 COMMISSIONER HOLT: Yes. Ms. Mitchell, are 16 you aware that you could do multi-family housing under 17 other zoning, NR-6 or NR-3 with an SUP: 18 MS. MITCHELL: I couldn't do it under NR-6. 19 I could only do it under NRMU-12 as far as -- because of 20 the size of this piece of property. We looked at every 21 zoning district we could come up with that would give us 22 the flexibility to be able to do either the single-family 23 attached or the multi-family. And in talking with certain 24 staff members, we were told that really the option that we 25 would have to go with is thc NRMU-12. We went ahead and Page 38 Page 39 1 COMMISSIONER HOLT: okay. 2 MS. VIERA: SO each unit would be built on 3 a separate lot. It could share the walls; however, it 4 would be built on separate lots. 5 COMMISSIONER HOLT: SO you could do it on 6 7 MS. VIERA: That's correct. 8 COMMISSIONER HOLX: If it was done in -- if 9 it was divided into two lots and the density would maximum 10 be five. 11 MS. VmRA: Up to five. 12 COMMISSIONER HOLT: Up to five, okay. 13 MS. VIERA: The density included on the 14 chart is based on the acreage that they have. Of course, 15 they have to locate parking, driveway, so that may 16 decrease the nmnber of units that they could put, actually 17 build on that site. 18 COMMISSIONER HOLT: Thank you. 19 MS. VIERA: YOU're welcome. 20 COMMISSIONER RISHEL: Mr. Reichhart, 21 anything you'd like to add? 22 MR. REICHHART: JUSt for a point of 23 clarification regarding the conunon lot, that isn't as much 24 an issue as the design feature. And the major difference, 25 a town home or an attached single-family unit which is 1 decided to go with that mainly because we already have 2 three of our corners that are already designated that. 3 And so to answer your question, that's really the only 4 zoning district that we really could go with that would 5 give us what we needed to get on this piece of property. 6 COMMISSIONER UOL?: I need clarification 7 from staff on that because that is in oar backup. 8 MS. MITCHELL: okay. 9 MS. VIERA: on page 4 of your backup, 10 there's a short listing of all the zoning districts where 11 attached single-family units would be allowed. The NR-3 12 zoning district, the existing NR-3 zoning designation that 13 is already in place will allow attached with a specific 14 use permit. However, those units would be built on 15 separate lots. There's a difference to the NRMU-12 that 16 would allow them to build the houses on a cormnon lot. The 17 NR-6 zoning would allow, by right, the attached 18 single-family. However, it would be again on a separate 19 lot and, of course, the density would be less dense, lower 20 than what would be allowed under the NRMU-12 zoning 21 designation. 22 COMMISSIONER HOLT: okay. Would you 23 clarify that for me on a separate lot? Does that mean 24 they would have to divide it into two lots? 25 MS. VIERA: That's correct. Page 40 1 typically referred to as a town home, is more of a design 2 issue. There's nobody that lives above you or below you. 3 You have that whole unit from the foundation all the way 4 up to the roof, is the definition. And whether you attach 5 them, you know, four or five on separate lots or single 6 lots, the same definition applies for a town home. 7 It's more of a construction and design 8 issue. And I've seen town homes both, typically, on 9 shared lots and separate lots and basically what they're 10 -- point for clarification, that table that was in the 11 staff report is for attached single-family. And what the 12 applicant referred to was for multi-family is NRMU-12 is 13 the only designation for multi-family. 14 COMMISSIONER HOLT: Thank you. 15 COMMISSIONER RISHEL: DOeS that help you, 16 Commissioners? Commissioner Mulroy. 17 COMMISSIONER MULROY: Yes. Two brief 18 questions, two brief answers hopefully. First for Mr. 19 Reichhart. Larry, in the mapping changes it seems that 20 the areas immediately surrounding this were NRMU-12. Was 21 there any -- what was the rationale for keeping this NR-3? 22 MR. REICHHART: The existing zoning and the 23 existing land use and zoning. The other NRMU-12 we 24 identified as, you know, existing multi-family we thought, 25 and based on their old zoning classifications. PLANNING AND ZON1NG COMMISSION MAY 22, 2002 Page 37 - Page 40 Condcns¢ItTM 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 Page 41 COMMISSIONER MULROY: okay. So across the street those cottages was -- MR. REICHHART: Multi. COMMISSIONER MULROY: -- multi-family, you consider that multi-fmnily? MR. REICHHART: Yes, sir. COMMISSIONER MULROY: Not duplex or single-fmnily lots? Okay. All right. Thank you. And, Karen, that second -- would you show us your pictures again, please? The one -- the other one, let's look at the other one. Is that not down the street about a half 1 2 3 4 5 6 7 8 9 10 11 Page 43 what's inside the wails, I guess, what's inside the exterior walls is what makes it a difference. Very similar to the difference between, you know, an apartment versus a condominium, very similar to the same type of concept here. COMMISSIONER MULROY: okay. Thank you. MS. MITCHELL: You're welcome. COMMISSIONER RISHEL: commissioner Keith. COMMISSIONER KEITH: Thank you. As I'm looking at those photographs, is the residences going to face only Elm Street? There won't be any back to back mile on Locust Street? MS. MITCHELL: Yes, sir. COMMISSIONER MULROY: And that's pretty much what you're leaning towards? MS. MITCHELL: That is correct. And the 12 arrangement? 13 MS. MITCHELL: YOU know, I honestly don't 14 know at this time. The way that the new design criteria 15 is set up and what we have talked to staff about and what 16 I think the City's desires are is to pull these as close reason that I wanted to show you both of these, again, if you look at the definition of the single-family attached versus the multi-family, the only difference is in the definition of it. Nowhere in there does it say that they have to be on individual lots. It has to do with the definition. This particular one, by definition, is a single-family attached structure. COMMISSIONER MULROY: YOU have -- MS. MITCHELL: And this one is a Page 42 1 multi-family right here. 2 COMMISSIONER MULROY: okay. And the 3 single-family, just to follow up on thc description that 4 we heard, you've got all your living space is vertical. 5 You don't have different fmnilies living over other 6 families. 7 MS. MITCHELL: That is correct. 8 COMMISSIONER RISHEL: It'S town home style 9 and you have a small patio in the back? 10 MS. MITCHELL: That's correct. 11 COMMISSIONER MULROY: And you just have to 12 arrange the parking. 13 MS. MITCHELL: Right. It's typically a 14 two-story, one and a half to two-story structure versus 15 one floor and a second floor where you have, you know, 16 living facilities on top of each other. They're vertical 17 versus horizontal. 18 COMMISSIONER MULROY: okay. And so the 19 second picture, when you're saying multi-family then, is 20 that going to be away from the town home concept? 21 MS. MITCHELL: AS far as design is 22 concerned, no. As far as the design is concerned -- 23 COMMISSIONER MULROY: It will appear the 24 same? 25 MS. MITCHELL: It appears the same. It's 17 to the street as possible so that the parking and 18 everything would be in the actual rear part so you don't 19 actually have parking up front, which is -- and both of 20 these photographs actually shows that. So I believe that 21 given thc fact that we do have a very small site, more 22 than likely everything is going to be facing onto Elm. 23 There's a possibility that one may face onto Taliaferro 24 but we don't have a very large site to work with. And in 25 order for us to meet all the landscaping requirements, Page 44 1 open space requirements, parking requirements, we're going 2 to be very limited. So they will, more than likely, face 3 onto the streets as the design criteria warrants. 4 COMMISSIONER KEITH: AS I look at this, at 5 your examples of photographs, we're looking at, what, four 6 residences? 7 MS. MITCHELL: on these particular ones, 8 right. It's four per unit, I believe. I'm not real sure 9 about this. I have my client that's here that may be able 10 to answer that question a little bit better. 11 COMMISSIONER KEITH: SO you're going to be 12 putting one of these in or two? 13 MS. MITCHELL: I don't know at this time. 14 COMMISSIONER KEITH: Thank you. 15 COMMISSIONER RISHEL: conunissioners, any 16 further questions of the rebuttal end of the petitioner' s 17 co~mnents? Any further questions? Commissioner Roy. 18 COMMISSIONER ROY: I have a question for 19 staff, if it's appropriate to ask at this time. There was 20 a discussion, I believe, in this meeting, in this 21 Conunission some time ago about a possible small area plan 22 for this area. Could you tell me where that stands? 23 MS. VIERS: It is my understanding that the 24 City Council directed staff, I will say a month ago or so, 25 to initiate a small area plan based on the neighborhood PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 41 - Page 44 CondensoltTM Page 45 1 input. If that is the desire of that neighborhood to 2 start and to initiate a small area plan, then we can 3 proceed on that avenue. 4 COMMISSIONER ROY: B~lt can you tell me 5 where it stands? I'm not talking about what the City 6 Council said, but where does it stand? 7 MR. REICHHART: Nothing has taken place at 8 this time. 9 COMMISSIONER ROY: okay. So there's been 10 no poll from the community? 11 MR. REICHHART: NO, sir. 12 COMMISSIONER ROY: okay. Thank you. 13 COMMISSIONER RISHEL: cormrfissioners, any 14 further questions of the petitioner or staff at this time? 15 Commissioner Mulroy. 16 COMMISSIONER MULROY: I'm ready to make a 17 motion. 18 COMMISSIONER RISHEL: I believe I have 19 closed the public hearing and I would hear a motion. 20 COMMISSIONER MULROY: I move to approve the 21 zoning request for the NRMU-12 based that the surrounding 22 area already has that zoning and thc character and nature 23 of the proposed constructure is going to upgrade that 24 area. Thank you. 25 COMMISSIONER APPLE: second. Page 46 COMMISSIONER RISHEL: It's been moved by Commissioner Mulroy and seconded by Commissioner Apple. 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 Cormnissioner Powell. COMMISSIONER POWELL: I was going to second it but I got beat. COMMISSIONER APPLE: I'111 sorry. COMMISSIONER RISHEL: That's okay. Any comments, questions, clarification? Seeing no questions, please vote. Thank you, Co~mnissioners. Motion carries 7-0. 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 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 Page 47 Page 48 PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 45 - Page 48 S :\Om' Docmnen*s\Ordinonces\02~Z02 0005.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FROM NEIGHBORHOOD RESIDENTIAL 3 (NR-3) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION TO NEIGHBORHOOD RESIDENTIAL MIXED - USE 12 (NRMU-12) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR APPROXIMATELY 0.8 ACRES OF LAND GENERALLY LOCATED AT THE SOUTHEAST CORNER OF ELM STREET AND TALIAFERRO STREET INTERSECTION AND LEGALLY DESCRIBED AS TRACTS 95 AND 96 OF ABSTRACT N. MEISENHEIMER SURVEY; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z02-0005) WHEREAS, Tim Beaty initiated a change in zoning for approximately 0.8 acres of land from Neighborhood Residential 3 (NR-3) zoning district classification and use designation to Neighborhood Residential Mixed-Use 12 (NRMU-12) zoning district classification and use designation; and WHEREAS, on May 22, 2002, the Planning and Zoning Commission concluded a public hearing as required by law, after which a motion to recommend approval of the requested change in zoning was passed; and WHEREAS, the City Council finds that the change in zoning is consistent with the Comprehensive Plan; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The zoning district classification and use designation of the approximately 0.8 acres property described in the legal description attached hereto and incorporated herein as Exhibit A is changed from Neighborhood Residenti al 3 (NR-3) zoning district classification and use designation to Neighborhood Residential Mixed -Use 12 (NRMU-12) zoning district classification and use designation. SECTION 2. The City's official zoning map is amended to show the change in zoning district classification. SECTION 3. 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 th e provisions of this ordinance are severable. SECTION 4. 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 Page 1 of 2 S :\Om' Docmnen*s\Ordinonces\02~Z02 0005.doc constitute a separate and distinct offense. SECTION 5. 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 ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 of 2 Exhibit A 0.78 ACRES FIELD NOTES to all that.certain tot, tract or parcel of land situated In the N.H. Meisenheimer Survey, Abstract Number 247, and the D.O. Geddard Survey, Abstract Number 811, City of Denton, Denton' County, Texas; and being all of a called 0.794 Tract One and Two described In the deed to PHCF, Inc. recorded in Volume 4425, Page 1757. Deed Records, Denton County, Texas, the subject tract being more particularly described as follows; BEGINNING for the Northwest comer ef the tract being described herein at a ROW Monument found at tho 'intersection of the East line of North Elm Street and the South line of Tallaferro Street, same being the Northeast comer of a save and except tract described in the deed from E.E. Wright, Jr. and E.E. Wright, !11 to the State of Texas recorded in Volume 4306, Page 1632, of the Real Property Records of Denton County, Texas; · THENCE South 89 degrees 58 minutes 25 seconds East along the South line of said Tallaferro Street for a distance of 129.87 feet to a Metal Fence Corner Post for the Northeast c~rner of the tract being described herein, same being the Northwest corner of a called 0.457 acre tract described in the deed to Lawrence Kevln Guess and Angels Kay Guess recorded In Volume :2333, Page 580, Deed Records, Denton County, Texas; THENCE South 00 degrees 01 minutes 56 seconds West along and near a fence for a distance of 108,97 feet to a Metal Fence Corner Post for comer, same being the Southwest comer of said Guess tract and the Southeast comer of said Tract One: THENCE South 88 degrees 29 minutes 08 seconds East with the South line thereof for a distance of 36.70 feet to a ll2-inch iron rod found for corner, same being the Northwest corner of a called 1.5 acre tract described In the deedto Mabel E. Maxcy Eying Trust recorded In Volume 3333, Page 64, Deed Records, Denton County, Texas and the Northeast corner of said Tract Two; THENCE South00 Degrees 17 Minutes 07 Seconds East with the West fine thereof for · distance of 115.77 feet to · Metal Fence Corner Post for the Southeast comer of the tract being described herein In the West line of said Maxcy tract, same being the Southeast corner of said Tract Two; THENCE North 88 degrees 34 minutes 53 seconds East along and near a fence for a distance of 172.83 feet to e ll2-inch Iron rod found for the Southwest corner of.the tract being described herein, same being the Southwest corne~ of said Tract Two In the East right-of-way of North Elm Street; THENCE North 00 degree 00 minute 42 Seconds East with the East right-of-way line of said Street a distance of 104.29 feet to a ROW Monument found for corner same being the South corner of said save and except tract; THENCE North 02 Degrees 46 Minutes 37 Seconds East with the East right-of-way of said Street a distance of 117,34 feet to the POINT OF BEGINNING and enclosing 0.78 acres more or less. This survey sketch correctly represents the results of an on-the-ground survey made under my direction and supervision on 06-13-00. There are no apparent intrusions, protrusions, or easements except a~ shown hereon. ~ 'd 8[LL'°l,l l,~ld~8'l ...lO0~ 'i .oo(]-------' Agenda 02-021 06/18/02 #40 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: June 18, 2002 Planning & Development Dave Hill, 349-8314 .~-~<~ SUBJECT - CA02-0001: (Beverly Park Estates Phase 3) Hold a public hearing and consider adoption of an ordinance amending Ordinance 99-439, regarding a Comprehensive Plan Amendment of 9.1 acres from a Community Mixed Use Activity Center land use designation to a Neighborhood Center land use designation. The site is generally located southeast of the intersection of Loop 288 at Sherman Drive, approximately 510 feet east of Poinsettia Boulevard. The area for amendment is part of a larger development containing a variety of single-family, multi-family, retail, office and commercial uses. The Planning and Zoning Commission recommends approval (6-1). (CA02-0001) BACKGROUND Applicant: Bel Air Development, LTD Dallas, Texas 75243 The applicant is requesting to amend the Comprehensive Plan by changing approximately 9.1 acres of Community Mixed Use Activity Center to Neighborhood Center. The comprehensive plan amendment coincides with a zone change request (Z02-0024) from Community Mixed Use General (CM-G) to Neighborhood Residential 6 (NR-6) and Neighborhood Residential Mixed Use 12 (NRMU-12) zoning designations. The applicant is requesting the comprehensive plan amendment to allow for the development of moderate to high-density single-family development which is prohibited under the Community Mixed Use land use designation. The applicant's justification for the proposed comprehensive plan amendment is that the site should have retained its original residential use designation under the Denton Plan Future Land Use Map. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval (6-1, Keith opposed). ESTIMATED PROJECT SCHEDULE Zoning changes (Z02-0024) to this property are under consideration concurrently with this Comprehensive Plan Amendment application. The subject property is not platted. A final plat is required prior to the issuance of any building permits. PRIOR ACTION/REVIEW The following is a chronology of CA02-0001, commonly known as Beverly Park Estates Phase 3: Application Date - DRC Date- P&Z Public Hearing April 15, 2002 April 25, 2002 May 22, 2002 FISCAL INFORMATION Development of this property will increase the assessed value of the city. It will require no short-term public improvements that are the responsibility of the city. ATTACHMENTS 1. Staff Analysis 2. Maps 3. Property Owner Responses 4. Photographs 5. Planning and Zoning Commission Minutes, May 22, 2002 6. Comprehensive Plan Amendment Ordinance Prepared by: Chris Hatcher Planner I Respectfully submitted: Douglas S. Powell, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary_ of Comprehensive Plan Amendment The applicant is requesting that the comprehensive plan be amended to allow approximately 9.1 acres of a 20.15 acre site be changed from Community Mixed Use Activity Centers to Neighborhood Centers. Existing land use and zoning were important criterion in the determination of future land use designations under Denton Plan Future Land Use Map. Staff believes the site for amendment was zoned for residential use under the old PD-90 zoning classification. The site was placed into the Community Mixed Use Activity Center land use designation due to a mapping oversight during the development of the Denton Plan Future Land Use Map. Existing Condition of Property_ Property History. December 7, 1999 - The subject property was placed into the Community Mixed Use Activity Centers land use designation. The site is presently undeveloped. February 20, 2002 - The subject property was placed in the Community Mixed Use General (CM-G) zoning district. The site was previously zoned PD-90, which allowed a variety of single-family, multifamily, retail, office and commercial uses. Adjacent zoning. North: Community Mixed Use General (CM-G) South: Neighborhood Residential 6 (NR-6) East: Neighborhood Residential 4 (NR-4) West: Neighborhood Residential 3 (NR-3) Comprehensive Plan Analysis The subject site is located within the "Community Mixed-Use Activity Centers" future land use area. The focus area of a community activity center contains the shopping, services, recreation, employment, and institutional facilities that are required and supported by the surrounding community. A community activity center could contain a supermarket, drug store, specialty shops, service stations, one or more large places of worship, a community park, midsize offices, and high- to moderate- density housing, and perhaps an elementary or middle school. It includes vertically integrated uses where different uses may occur on each floor of the building. Change to Neighborhood Center - The comprehensive plan calls for a variety of housing types and densities within the neighborhood centers. Pure residential areas, regardless of density should have pedestrian connectivity to small-scale neighborhood service uses such as coffee shops, bookstores, childcare facilities or civic uses such as parks, recreation centers or schools. Neighborhood densities should decrease in concentric areas away from a mixed-use center. By developing higher density housing adjacent to a community mixed-use center, that may include commercial uses, will provide services to the residents within walking distance. It will also promote convenient nodes for transit services. The proposed amendment is compatible with the surrounding land uses identified by the comprehensive plan land use map. The area for amendment is part of a larger development that will offer a mix of a variety of housing types and densities within the proposed development. The proposed developmem will provide pedestrian connectivity to the existing residemial neighborhood south of site and to future shopping, services, and recreation facilities supported by the Community Mixed Use Activity Cemer north of the site. Developmem Review Analysis Transportation Transportation policies within the comprehensive plan dictate that developmem shall use access managemem practices (imemal street network, limited curb cms) to make the investmem in the roadway infrastructure as cost efficiem as possible. Additionally, development should provide transportation facilities and services to promote and accommodate growth and change in activity cemers, neighborhoods, and industrial centers. Seek to provide transit services and walking and bicycling opportunities so that activity cemers and neighborhoods will minimize single occupant vehicle travel. Imemal connectivity should be maimained to provide permeability of the road network. Urban Design For any new developmem, the design of public/private space must be considered. Community Mixed Use Activity Cemers and the mixed-use areas of neighborhood cemers are not only locations of commerce, bm they are to be places of idemity. Elemems of site design, architecture and connectivity can bring a sense of place to commercial developmem. Oriemed towards a market of local residems, privately owned commercial space can be designed to incorporate open areas, omdoor seating, public art and walkways that are used as a public spot for impromptu gatherings and becomes a place to go and stay, rather than a place to only shop and leave. Staff Findings The area for amendmem was designated for residemial use under the old PD-90 zoning classification. When the Comprehensive Plan Land Use Map was adopted (Ordinance 99-439), this area should have retained a residemial land use designation. The proposed amendmem is compatible with the surrounding land uses idemified by the Comprehensive Plan Land Use Map. The proposed amendmem from Community Mixed Use Activity Cemer to Neighborhood Cemer is consistem with The Demon Plan land use goals and principles. ATTACHMENT 2 Maps NORTH Location/Zoning Map Scale: None NORTH Land Use Map Scale: None Notification Map NORTH Scale: None Public Notification Date: 200' Legal Notices* sent via Certified Mail: 500' Courtesy Notices* sent via 1st Class Mail: Number of responses to 200' Legal Notice · In Opposition: 0 · In Favor: 1 · Neutral: 0 5/9/02 5 20 Percent of land within 200' in opposition: 0 % *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 3 Property Owner Responses Property Owner Name In favor Comments and Address /opposed* My concern is what will the town homes and single-family dwelling Sharon Rybak In Favor units look line. Will they be single story homes and how many 39'16 Zilda Way stories will the town homes be. I would not want a two or three story home in my backyard. *A copy of the original notice can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 4 Photographs ATTACHMENT 5 Planning and Zoning Commission Minutes Condons~ltTM Page co~.~MrssroN~4 mst-mc: 'J'hal will bring us to [ama No. 8 on o-ar Agenda and I ~]i~r~ thaL II;.,m NO, 4 ~hnd will 5 MS. ~e~: 60~ ev~fin8, C~]miss[on~L 6 ~ gaghnd, Small A~ ~anning Man~. ~ 7 ~plican~ Bel Ak ~'~ L~i~ is ~ucs[i~ 8 ~ ~ ~mp~iv~ P~ by c~glng ~ppt'o~mamly 9,1 l0 Ns¢o~d C<nf~ land usc. Tt~ C~n~sixre Plan ] I ~n~m~t e~nci~ ~ri~ ~ ZO~ c.~n~ z~nc~t from 12 C~uui~ Mi~ Usc ~cral to ~borlmod R~5~tlal 13 aM N~¢~bor~ RcsitEnfi~t M~ Use 12. ~ 14 is proposing m~ to high ~.~iB, m~i~mtial 15 &ev~m~t w~ch iaclut~ ~g~-ramity and town 16 z~i~zce~. Tt~p~' was p~m'iom]y zon~ Po 17 a~to~ a vary ef sin~-fm~ly, m~fi-fm.i¢ ~1, 18 offi~ and co~m'oi~ uses. lg ~ ~opos~ mum~nl ~om ~u~iB' ~th ~ ]'~nton P]~_ AM wh~t ~ Comp~Six~ 23 ~d [J~ Map was ad~, ~s mm s~uld M~ mtaiacd 25 Since ~c s~ff mpo~ ~v~ ~n, 2 4 5 6 ? 9 i0 11 12 13 15 16 17 18 2D 21 22 23 24 25 Page has r~ceived was pasacd out to you. AC Lhis Lime il' Lher~ am quesO-ons, I would llk~ .Ms. V;¢ra to present thc associated zoning case. we al8o open up for public hearing kcm No. 9 on our Age~da whid~ both thc disoklg~liorhg g_t th(: ~ li111~ and lJ~cn '¢,r¢ will Page 1 t9 I chat is proposed to 1>,'. dcvclopo4 as th~ town honaJs will 2 ~nvi~ tt ~a~d ~mmititm in ~wmn ~ 4 m :hu ne~h, 5 ~ ~ Cm~ve P~ is a~mv~ as 6 pro~)s~, ~ zoning ~t wffi bc in 7 a;,aihb~ to an~ any- 2~s~ons ~t 9 stuff. ~_* is a pubfic }~ing. ~d is ~ p~fio~ lO ~ and wmdd ll~' l~c to pmmt? [ ] ~m. (:~&u~.:~.~.: mr. C~man, [2 C~si~n~ my ~e is J~ Oannetl. I'm wi~ 13 Engln~i~, 9127 ~ng ~ ~% ~1~ T~uu. I'm 14 ~ ~ ~Jing ~mtti~ t]~ ~¢o~ aod 16 ~ty' smlT tm nm~t)u~ occa~iau~ ~ ~rk ou~ w~t ~ ~k 17 ~ son~ min~ ~u~ping i~* and ~ ~nk ~'~'* g~ 18 ~e ~rst mill ~'i~v m ~e Conn~ssica 20 this is ~i~g to ~ thc thi~ p~sc or w~t ~ caf 21 B~ly Park Esla~s. B¢~mly Park Pram I, ~v¢ly 2) m pm~ wS~ Belly P~k Phase 3 which will be thc 24 ~aining rmidm~fia] potion. P%oe 120 2 in E~ ~ so ~at z~ a~ now ~ving 3 site imam t~ cxis;lag z~ning_ I'm ~ sko~ly in fav~ 4 uf ~e C~p Plan m~ent c~n~ and 5 to ~ m~ closely back tr* w~t wine i~lly 6 ~s su~ivk~i~_ So wl~t we'~ pmp~ing 7 Phn. and l'~t use thu w~u m yol~ smffe~, it's 8 juata m~p[ng o~$ight. So ~ hope m address tlmu s~puraL~ly as individual i~"ms for consideration. IL Mil also give us ~ fa~ ~t we'~ astrally muv~ al~ h~. Ms. w¢:~q: ~[ fl~¢ infommti~ lhat M~. ~lmd p~vit~d pe~as ~so ~ my zoni~ ca~, In t~ difk~nt zoning ~strmts ~t 11~. uppLicau~ is ~questing. Po~i~ No. 1 ~i¢;~t on the inctudea 2.4 u~s ro ~ reined ¢mm N1-3 to ~-12. ~m's anchor pa~t ~t mcmpas~ 5A ~ from CM-G to ~-12, And tl~ d~ pm'~l ks 3.8 ae~s m~d it ~an~s fr~a a CM-G ~ing dislricl ~} h~-6. T~ appl[cmat is prying tO develop at~ dwdl~g units 5¢~r kno~a~ as m~ ho~s, and d~[~ siagle-¢mnily m~m. ~e Na-S zmi~g, ~ propomd No-6 ~ai~ ~si~ation will mpl~;. ¢xish~ NR-6 ming south of t~. prop~y md tho ~I-12 9 Plan an~e~dnteat so thn[ 'a~ eau [hun proceod with ck.'x<opJng 10 ~is project per thc: or~,t, ina! p~l:huiaary phc. 11 As a land plan, I feel Ii 'l,:z '~ clmng~ ar~ 12 vory bmmficial to this sl~ in order to b~f~r t 3 existing CM-O and multi-family to utu north, We will have 14 ¢xtsdng Pr~in~if.a Drive that will bc basically 15 through this ~m and also prm'ide a buffet bet'a~ven the 16 multi-£amily si~¢$ tho1 are existing, CM'-~ m ow- noah. 1~ So this hi a good huffta'ing down m tho pmpos~ l 8 thm's ~ and [ rhiok it's jn~t a minor 19 item. 20 Wc hopo 1o plan a good s~acape 21 Poinsettia thai will I~ a very attractive ,sltuat[~n. We 22 have st}m:' m'chltccts wurldng on the cM-~ mired mc at thi~ 23 lmlm ici Ii,tm ltmt we ttdnk wJil bca ~17 slrong 2q tn 11'!.i,q p~l.F~ Of 10~.'U. ~0 '~;'I~; moving fca'wa~d and w'uuM 25 like your bio/Cng on the~e is,~;ues thls ¢,wming. And :ii PLANNING AlffD ZONING COMMISSION MAY 22, 2002 Page 117 - Page 120 10 Pa~ 121 1 ~fi.s point, if you have any q. uastion% be happy lC. aaa'war 2 those_ 3 COMMISSIONER RI811~,;,: Mr_ Cr~[l~ we 4 appmcia~ yo~ pm~nmtio._ Mr, Kc2h. 5 COMMISSIONER K~: Ihavc a quench. ~ ~is u~-~. ~t's ~y d~na~ thru'8 right 7 MZ C~ELI,; Ye% ~'u a sl~p 8 ~ ac ~ ba~ ~aC's al~ady NR-6 ~*at 10 COM~fiSSIO~R KF, rFH: O~y. 11 C, OM~SSIO~R RISHEL: Co~ssio~ ~y. 12 COM~SSIO~R ROY: ~d s~ffically can 13 ~ m w~t yOU p~ m ~ld them? 14 MR. C~E~: Yes. MR-a is going tO he a 15 caatinuatian of t~ exis~ ~glc-f~ly h~es 16 have ri~t sow. ~ut will ,~ompas, ~'~g. 17 a ~ p~'~ line or ~ ekc~c ms~t t~t 20 ~i~rh~d thru ~z've ~s~ned ~viously. 21 (,~MMB,~ON~ ROY: Above -- 22 Mm C~'~LL: S~~. Go a~ad, 23 COMMkS~ONER ~OY; That [i 24 above ~at -- 25 MR, CRANNH[.L: ~ n~ow s~ip tlmt's Page 123 ] MR. CRANlqELL: That' g n good que61Jon, 2 wish l knew the ans'~-~r I, ~at_ Maybe Lmxy ColAd 4 co~nvasmo~va ~sH~u Mr. h¢ichlmtt. 5 ~. ~ac~a~'n a w~ mmn~ d~ng 6 ~p~nl Code, ~ rapping o[ ~ ~p~nl Code. 7 COM~ION~ ~;r,aoY, I WaS um~m ~ 8 fim~ und~tandi~ ~at ~ ~e not ~ng PD5 ~ ~d 9 mcanin~ffUt acti~ On ~_ 11 n~ai,8~l activin, on ~br -- tl~ was a zoning 12 llk~, two ~rs a~. T~ pro~ ow~ was 8~ a 13 a~thg ~e in~lmmq ~ ~onc t~s ~o~'_ ~d if -- 14 gi~ ~ option to con~ Ci~ s~ff ~ ~ wan~ 15 ~rminmin ~ir ~is~ eD. T~ ~d not ~ ~at, ] 7 MR. R~CH~T'. T~' ~d not C~ 1 ¢ COMMISStON~ RISH[.',[.: t~t. Okay, 20 tXlMMTSSION~ ~ROY: NOW, [~ ~is FD 2[ s~a~ from l~4r c~isting ~k ~ fi~ 22 phases or Js it al1 p~t of ~at fkst 23 ~a, ~.~U': t'~ e~ iucludM P~sc L 2, 24 slid w~t ~rl~ ~lhvg ~a~ 3. TI was includ~ and · 25 built out ~mse 1 mxt 2, Page 122 1 about 130 fact wide, that will be one singk row of town 2 homes that will face proposed Poinsettia Drive and that 3 wilt be then our buffer to the existing multi-family mixed 4 u~ to o2rnarth. IWe gal a pbm hercifthis will show' 5 on thc scrota. We are very, wear to submitting a 6 pre[trainsW plat aud the other documents to move forward 7 with this rcddenhal portion ~f tl~ design. 8 Actually, I faded buck thc existing 9 subdivision that's rigN hexe wrappin8 us to the south and l0 west. 'Ibis is ~hc prope,aal [l>~t x~ have up t.o the power 11 Line easement that cuts across this site, and then we'll ] 2 have town homes fa~ing Poin,m~xb to our ~orth_ 13 COMMISSIONER ROY: So Ll~ exiS%Lrlg homes 14 w/Il be balking up or adjacent th ms-s, to another 15 static-flatly d~wllings'? 16 MR. ('.RAi~2x.q2LL: YC,~, O11 tl~ south and cst 17 lhere will be a ~lort 8trip lycra tl_xtt w~ll be buffering m 18 th~ ba~k of the town homes. We do prop~e a C~ty alley to 1~ be the buffer between that. We also ha~; a 50-foot wide 20 ~x~w~ lh~c eoz, crn~nt that tlwy'rc askJ. ng for addi~on'al 9' [ e2agC.111LTff. SO -- 2:1 ~ JOMMISSIONP, R ROY: Thank you. 23 COMMISSIONER gtS HF.I.: ConmSssia~aer Mulroy. 24 CONtMISSIONgR MUI A{OY: YaK Thmlk ¥o~b Mr~ 25 Chairman, Sir. Inow di6 you lose your po-9o designation? Page 124 ] COMIv',.Bv-~IONEg. MULROY: Ol~ay, V¢'r~l]: 2 uadezntand/ng and I have participaa~d in ,no~t of our 3 evolving clmnges, th~ he ~votfldn't have had to respond 4 because he was building rmt his PD OVer lilllg. ATI~ lOOking 5 back at ones ttm~ were laid flntmant *xxz, 15, 20 >xz,e3 w~i~ 6 probkanati¢, not current .o~, So [haf~ my qumtiun is to 7 why you h~v¢ ~o come back through thi~ ~o¢¢~,. I'm 8 i*ading ~he staff r~ork It says c~smtially wtmt you"~r¢ 9 a~kex~ for what's already bcx,'a approv~xl pt~-q/~ou~ly and is 10 itn. linc wiflt that ] l MR. C. RAI%'N'g'LL.. H ~5_ Th~, I think, are 12 l-am.sek~ing itc'ms. I've jmt joined- thi~ project tbr the 13 developer a~d I can't g~ve, you a lok of hlstca'y, Icao /4 loll yon r. hat his intent is to build out Mmt he 15 originaSy iateaded ] 6 COMMLM:-iIONER MULROY; O.kJ;ly. Thank you. 17 MR. RE/CIIIDJ(I: [ ntx:d ro point ollt that 18 even ~qth the~ changes, and it's very similar 1o [he ul(I 19 I'D, tko, v,'odd ha vo trod to ecane fb.'wnvd and dj, an 20 m,~eachne~'. 1'o tho ~taikd p'lan wtzlch would lmxx~ b~n the 21 ,fantc process fllat ~;h~ry"m b~,ia$ ra"l~llgh 22 cx31vIMlS.~]tq~n~a Mr:r.wo¥: trot I'm not sure ~ 23 would ha,,.e to go ltu, ough e Comp Plmx change_ Anyway, 24 "l'hm~k you very much, 2~ C~,lV~IISS[ON~A RISHFJ.: CoBLt.nJ. ssion~x PLANNING AND ZON"Ilq'O COMMISSION MAY 22, 2002 Page 12I ~ Page 124 11 Cond~n~lt '~- 1 2 3 $ 7 $ 9 tD 12 15 17 20 21 22 25 24 25 Jll~'ntp~ by ~c pew¢ ]in¢ orj~t by m~ing about ~? qu~lion is hub ~ & ha~ an o~'~a po~ ~ne ~sm~t mulfi-f~[ly ~ o~ n,~ and wc ~n Poina~2 ~' singM~ily mnl6-hmfly l~m~. So z~ Ibll buffer. We t~ ~ve ~r ~' m~d dfiveway~ .ff ~. s~, wh~ ~ ~i$~al bfl driveways and ~u~s hciug ~ ~, Wc ~nk Poms~ha ~i~y Mil ~ a ~si~mial cal~r and ~*n~ Ia k~ thai ~a~C off of L'OMM~I~BR FQWE[.I,: Y~ah_ ~ ~fln't tt~11 n~ali~ abctmt it. That w&sn'~ my in~l; at all I ju.sl Irying ~ ~ a handb on how Page t27 ] COMMISg-IONE~% K£["I'I]: I]O~/Js ~ parking for 2 tho msident~ g~ m be managed? Are they 8clog m have 2 carpms in the back, 8~rages? I mean, wlmtrs 4 ~Nanatic or s~hianc of -- .5 MR. UKANNBLL: I ~m~.~'~ [tO[ s~a~ll 6 atclti~>et~n, al piano fo~ the town homes yet. My :~sumpfiort 7 Js II~y'd be tmclos~d garage with tw'o spaces b::Nntl 8 gar%~ backing up to tl~ 9 co~ssaoNm Knn'm so they'll ~ crdr, rJng [ 0 from the back ~ide instead of h'm the -- ti ~, cr~x~,n,~eLL; rdght. That's th~ klca. Wc 12 donq wahl any vghlcular acucs,'; -- ~ell, we don't won't arty 13 driveways or we m'igla want -- I'm not .~m'e if they'll 14 re~tci~ parking there but w~ doWt want m~y 1.5 acce~ ['mm lira frcml_ 16 oomsmotcm/ann, okay. And $c~ing 17 back ;o this ~a.,~, )tm said &at was desigrmt,~t wlaea you 18 first pl~1l~ all of t[fi~ Or th~ r¢~t of the 19 down in there? 20 _'x.m. clkqt,,'b.-EI_I_: This is c0dsfing. 21 c-o~tmSSlO~X KEITII: Yeah, that's existing. 22 But this was platted in conjunction ~th that or s~ama:7 23 ~w,. ¢.'xa_xe,'ULL: ',-he preliminary plm, to my 24 kn0wl~ incl~lCed this pcr'iion as what v,~ call Pha~ 3. 25 co~a~m~,rml.xr].ara: okay. Pm just toying Page 126 I s4ngle-f0auily to the lown hon,.~.q_ I firmly believe the 2 City 2cods more of wh~L ~r'Oa're ttcx,¢loping there so I'm 3 positive about it, but I just didn't g~ a htmdle on how 4 it got here. Thank you. 5 CO_MMI.51SIONIqI~ RISIIEL: Nit-. Cramcll, as l 6 look at your dm'e/opinem, m~d I'm ~eing some sort of ? eonnec~on between the new phase and whm I guess is 8 Irlv,,ro0d. Stow. et trod I_~ Sage Court, are tl~e palhways that 9 are connecting thos~ dm~ bdove? 10 MR. CRANNELL: Those arc actually draJ. nooe ; 1 easemmts and sanitary segver eam~mts_ 12 COMMIS,g[ONEIt RISHEL: I 803. 13 MR- CRAN'NELL: NO pathways, no access 14 points. 15 ®MM1SSIDNI?.R. R1SHEI.: Olr,.~y. [ OOla].d. not 16 dctcnninc exactly what that was_ Otmy..Any further 17 cmmellts or questions, Come~nis~onem? Mr. K~th, 18 f. lJMMISSIONER KB].T[I: 'rhartk you. Leavo your t9 Nu~wint there et yom: plat there. I'm looking at your 20 town homes, ts thnt goh~ t0 be ~elid or arc them lots'? 21 MI t:KANNELL: NO, thos~ am Cmp,~aod I0~, 22 Wo'rc propo,ing probably about four to six units nad tt~m 23 an opcu ~pacc gap and gq, ur m sL~ mute. qbe architect is 24 working on that Th/_s is my first draft of it but the Z5 architect is going to -- Page 128 to get a l:mndle on flint just to become familiar ,~,ith it_ 2 ~nk you. 4 yOU, MT. Cram~ll. fln~ a~a~, ~s is a pubSc h~ng. 5 1 ~ aerial ca~s of pmplc flint ] bcli~ ~4 6 ~ sprat. On~ a~iv, if you would b~ m a~s t~ 7 ~ission, if you'd fill o~ a ca~ m ~pmk wNch ~ at 8 fl~ Front m~nS~ aa yin1 reign ~ co~ in. A~, once 9 again, w'~ am a~saing at ~s point in tim I~ lO 8 and I~m No. 9 on a~ ~& j~nfly. ~d m'~ 1 t c~ k~ a~sing ff~ i~ms, z~ wm ~&~ss t~ 12 u~a~ly to a vo~. ~ first ea~ ~t I l~ve is from 13 ~. J ona~an Tayhr. ~. Taylor. And, eace ~M~ ff ~u 14 would p~se ~ve aa ~ur aumv and ac~s ~ ~ yea [6 MR. TAYLOR; YO;. l did ~ ia a [7 lhis i~ COMMfSSION~ R&SHHL: 'I~ }~, sir. 19 ~m. 'IXYL~: ~ff name 5s Jona~ TayBr. 20 ~x~ at 3908 Z41da Way which ~ h~ next m ~g-~ 21 is app~hna~ly mcfly fi~t ~. ~t'a my h~sc 22 fight tl~_ I'm p~g~ wi& ~ ~d~m~t V~p~l [ lo~ w~ r live now. W.~ hmtttfful. I'd ~ to 2fi ~is ~-f, ~lty mtm. h close ~ what it is no% w~ch PLANNING AND ZONING COMMISSION MAY' 22, 2002 Page 125 - Page 128 12 CondgnseItTM Page 129 1 dc~mlcqxa' did May h= wax going lc &l. ~* k,hatrs b~t. 2 My c~m, a liul¢ bit or =onccrn 5 q~li~ pta~s W llve, nm just insi& bm 6 ~h~ically¢ I d~ve by, I drive on Paladin 7 ~' to go tc work and back from work and it 9 probably wilt b~ q~is ~auu-~ 2. ~c~g w~t 13 5m 'raxL~ r~s probably won't hap~q but 14 zr~t d-~ didn't work, ~is ~n ha~ kt~, and M1 o~ l~ ~ smldvn ~nrb~nts sta~ ~i~tg ~p? I d~'t want ~t. ! 6 I t~;~ ~m B~ _Ax,~ u~r Stric~nd ~dd~ 17 ~ aw~ fi'om apam~mm. Enough Said. 19 m~ a ~gi~v¢ f~ling, l'm just conc~ a~in, nhouL 20 ~ possibility' of maybe a~mcnt, cming in und~ 2t ~Mt>~a. Thank you. 22 ;~MMI~IO~ ~SIIEL; TMnk yo~ 23 Taylnr_ T~ ~t ca~ ~t I ha~.'c ]s f~ J~nma~ 24 Ooff. Ms. ~ff. Page 131 t NRMtr-tz in ,ny neighborhood [ would b¢ afraid that there 2 would be apartments moving into that ama, atm, 3 My vote, if I had c~e, would be not to 4 allow tho~e m he built bctc~nd my hecne. And I ho~ that 5 you will Lake that under consideration. Thank you. 6 COMMIg.t;IONI..'R R. Igl-II/L: We ]:t,q~ 7 cluesficns, Ms. Goff. Would you stay aq~h us? g Ccnnmisa£oner Keith. 9 COMk{ISSIOKER KEITH: Ms. Goff, wh~ you 10 bougkt your home -- Itow long t,avc >wa lived tlm~? 11 MS. GOFF: I've lived tlx~re less than six 12 mo~ths. 13 (_~_'}MMIS~iIONI".R [m~r[% Okay. When you bought 14 your home, when you bought iL did yon do so undm' the ! 5 undersma]diag That there would he residential behind you? 1 ti ~s. GO~-'~: 'rhat was my undea's 'landing. Pm 17 no[Ihe£irstt}wnerin fimhome. Imnthe mound. But 18 botl~ roll-ring witk the people in the information oente, r and 19 the people 1 bought the home from, tlmy led ~r~ to 20 ti. lot these were going to be single-family dwellings 21 my home. Now, across the street is a diffemm manor and !22 I'm not add_,-ek4ng [hal molten-. But behind nm it was my !23 assumption, from what they told me -- ': 24 C. OMMI,SSiONER KEI'fH: Wheal yell .qay 25 the smmt, would you point to it9 Pa~ 130 I Cotmcil members. My name. is lennmaric Goff and I live 2 1301 Maaten Boulevard m~d thafs fight ut tM corner of 3 ['oin scttia, 4 gm ~ thla ov~ing to yece 5 opposition tO lbo proposed plans. I also movo;l from 6 a~ ~thad h~ and apamnmt~ and I%c just fi~Hy 7 ~ out of ~t am to a woM~fid a~ghbcrhocd t~t 8 I'm so v~y p~d of, ~t I hope wi~ cmfnuo m 8~y an 9 ~4. am' ~xu I've l~t~. So h~ng aa ~ ccr~, I'm 10 at fl~ main ~mnce m ~>' P~k ~la~s. Wt~ I 11 b~t t~g p~, [ was ~ ~ msmnp~mt ~t I 12 wa~ going to ~ living in a nu~burho~ wi~ ~n~ ~ ~3 mine ~ I'm fin~ out ~al ~ ~ ~iag to ~ ~4 h~ di~fly ~nd my ho~ and I'm not vat pl~s~ 1~ ANo. ai~me ['x,e mow in ~ 1]omc 17 mdca later on,ocr impmx~u~ts m my pmk. [~ 18 nuny of my ncighb~.s ~ who &N'o by and wave and ~umhs 19 up and 0~y li~ ~o s~ what I've don¢ ~ my 5~rd_ And 20 I'm ~aid t~t afldi]*g tl~ ~own h~ ~y ~t/mm 2t ~at. I ~' up ia Si~g CaM m~d ~ ~d hca~s 22 ~ ~d apa~ts r~ and it ~as a m~bt:htmd ~t I 23 was g~d m mo~ lgcxn. I want a ~bot'~ofi ~at ~ cmsists of h;~ l~e mN~ not Mt~ m~ h~_ ~d 25 r~ s~ soa~ v~ nice ones b~:t I don't ~mnt any l~u Page 132 ] MS. GOFP: Across Poinsettia. 2 COMMISSJONER KEI't'H: Oh, okay. 3 MS. G-OFF: I have heard that they were 4 going to put possdbly ap~ts over on th~ side. ~ COMMISSIONER ×u..'rH: Okay. 'Dmk you_ 6 COMMISSIONER RISHEL: Thank 'you. very much. ? Ms, G~ff. ~ MS. OOPF: T~nk yolJ, 51 COMMISSIONER RISttE[ ,: 1 have a card from 10 Anne Obenshaia, I don't knew il' I pronounced that 11 correctly, Would you cam to ~pe, ak to the Commission2 12 Okay, Hm: card say8 NRMU-12 zoning is mo broad, 13 Rczxming ghould he postponed until ~his c~tegory is ~4 narrowed or reconsidered, 'thank you wry much tbr your t 5 gnrmt~tont s. 16 I have a card from a Mad Culltnn, Mr. 17 Cullum, would you care to present'? 18 MR, CULLUM: IlelD. My nmue is Matt 19 Cullmn. I live. at 1409 ~r Mirada. And we're basically 20 in opposition of thks because, and thi~ kind o±' addreases :21 Mz. Keith's question, we arc erie/ual owners of OLU: : 22 proped% We purchased k and closed May of' last ~d we were ]ed to 10elieve as a specbfic part of tl~ir 24 sales pre..~ntaticm llml lhta-e were golng ~o be rare lot kine hemes directly behind us. We IJ.,~2 currently right PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 129 - Page 132 13 CondenscltTM Page 133 I hem so we would be, just basieal fy, on the comer of all 2 {his. We ~m told hhere would be v~ro lot Ii a(~ ]]om¢~ 3 ~ek ~e~. Tl~y talked about ~ pe~bili~ of 4 aem~ats I~hcr b<k but t~y told us n~t to w~-, 5 ~t w~¢ ~= would have b~k t~ ~ wMt ~my ~ 6 g~n ho~s. So. bus,airy. I'm in op~sifion to 7 COMMI~IO~F.R ~LSII~/.: T~k yell, ~_ 8 Cullum. %at's ali the ~ ~t I have, ~at have b~ 9 p~umd m ~. Would yon c~ m ~¢ss the 10 ~mi~im? Commission=s. Pleura. ~m ~mn, if 11 you'd give ~ y~ nme ~d 12 MR. DUR~D: ~{y ~ is J~g ~land. 13 CO~SSIONER RISHu{,: 1~ ~ ask you, 14 you l~d fl~ call for us if you ~ant~ m ~6 I'H l~ming t~ tXs~ way, 17 ~MMISS1ON~ R1SH~L: Thank y0B v~ 18 I ~Wt wan~ m ~ c~&d for ~iag fair ~ Lhc public. ~9 MR. DUR~ND; I live at 1809 La Sa~ 20 My ~p<y b~ks up dimply m -- 22 your name again9 23 MZ DII~ND: Jmams I)urtand. And I'm 24 wmdoring~ ~e ,~veI~, mc flmm g&~ to be cl~ag~ to 25 6,000 <u~c/hat lets ms opp~d to 7,000 squ~ foot? page 134 I I'm taking NR-6 r~fic~r'~ tO SqtlarC footllLle of a loc. 2 COMMt,.qSIONEP. P,&SIIEL: Mr. Rciehlmrt might 3 clarify that tbr you, 4 MR. REICHtlART: NO, sir. NR-6 5 the dmmty per units per acre. You c~m get six units per 6 acm and am'e is ~o Iv[ size reqv2mmcnt, per ~e, 1 7 mean, it does relate to tl~ sdze of the house tlmt you 8 build but. there im't a minimmn, you can't gay 6,000 ct 9 5,000. 10 MR- DUII[.AND_' ok&y. /klSO, what I'm sho~wing Il tip here wa~ gi~re, n our a couple of years ago at 12 neighborhood meeting comgem[ng this developmem, I've t 3 lived here for or'er r2rree years, I w~s {*ne o£ thc fwst 14 ones to move m_ OrigJna][y alung Imzc, it 15 to b~ duplexes which I tlfirLk/s more prel'erable 16 homes_ Town hcrmcs are *we st~rie, s. 22)ny'Il be v[sibte. 17 And I'll speak for peopl~ that might be l ivi ag t 8, here, I assmne the ?arkmg fat' tl~e town homes wiR he i9 behind I1~ town homes. If 1 lived along here, 1 wouM nat 20 want son, one's cars behind my hack fence. That's 21 so~hing should be w, ken Late considered(re. Maybe they ~ need to get firm drawings before y'~! deoide to approve 23 LEIS. 24 And I, t~o, was misled by the (~riginal 2~ 8~lesp~son, Ms. Barbara Parker, who is no longer selling Page 135 I hoir~. Al1 thi.~ out hexe, I'in not/gaorant, this w~s 2 going ~ be ceremonial. S~ nev~ mm~cd ~n~. 3 She ~id mn~e-/-~i~y dwellings. 1 fo~ot 5 ~. Sa ~ ~ve misl~ and l'x~ b~ the~ ~or over 6 th~ ~ars. In fact, when I ~ht tile hom~ th~' dMn't 7 eyre have a mo&l hmo far ua m l~k at_ 8 to ~e s~e mom firm dinings by the ~wloper 9 fall approve ~is. ~ank 1~ COMMISSIONER RISHEL: Tha~ y~ Mr, 11 D~l(md. 12 cOMMIS,~JONER ~OV: Mr. ~, you mid. 13 if I un,mM you ~mcfly, ~t ~a~ ~ not s~eify 14 ~um foetal, a minimum on fl~e lot. 16 COMMISSIONER BOY: ! believe il~a a ~n~ 17 sqm foot ~f 6,0OO. lg MR, ~ICItI~RT: In subd~visi~s of two [9 a~ms or less. 20 COMMISSIONER ROY: oh, [ ~, O~y. Y~ 2t you'~ righL ~122 MR, i~i(",H~T; If it's ~ ; 2~ SuBdiv~eU, tlm~ is a lot Si~ 24 COb~ISSIONER ROY; Okay. ~k you~ 25 MR, RUIC~HAE'[': ~a~ you_ Page 136 1 COM_MISS1ONJ.5~ RISHEI/ Any I'~rd'lor ql~$C[OD$ 2 ~ ~nun~xL% C~m~sgi~s? Commissi~er Po~l. 3 ~MMISSIONER POWEL.L: A ~rt ~<ent. It 4 ap~ that none et' thom ot~ fo~ ~plo 5 p~ieuMr ~ng, t~ four ~aL like 6 COMMISSIONER RIMHEL: I ~ yOU lmvc a 8 COMMISSIONER ~ITIi: Y~h, ~ of~ 9 qucsfieng 1 M~ is and mn~ms Ls we'~ ju~ going to i0 have one entrance into &at. wtmle a~a, Poin~ttia Il Boulev~d. 12 COMMISSIONER RISH~L: 6onaocdvity, >'Otl 14 COMMISSIONER KEllY: ~:~[, ~[} i~ wha~vor 15 >~u a'anz_ ti's just ~e mw ~ail or wha~<r. We're 17 devel o~ents ~ ~ going ;o Imvo t~t 18 19 COMMHSIONER RISHEL: ~. :20 COmmISSIONER X~: mw many units are ] dc~gmal~ fm that? g2 COMMISSIONER RISIIEL: Would you ~ to 23 gL~ rMt re the t~it~[ who is 24 MR, R~C'.H~ART~ [~IB llot S~O how many ~ pmpos~ but evmLuaHy Polnmtfia will ,a~m PLANNING AND ZONING COMMISSION MA'/22, 2002 Page 13 3 - Page ] 36 14 Condensol~TM Page 137 1 pr~jer[y to the east and cci.at m KJ. ng,~ Raw ~u~, you 2 ~ow, o,her ~]bdivLniong_ So ~s ~1~ ~ve, cvcnL~l]y~ 3 two ~. 4 CO~ISS]ONER KEI'I'H: 5 MR, EEICHHA~'f~ ~1~ ~a~ ~rO~y 6 devalued. 7 COMMISSIONER KErYII: Yez~, Unde~o~ ~e 8 wgrd '%wmtually." I just have u Lot of con~m ~ding 9 ~mt b~um they'~ cmnin8 in pu~ t~n homes and 10 c~y~, fli~'s rather ~nm. ~ you ~ much. 1 COMM~SgiONER RISHEL: ~m~iSSi~s, any 14 For s~ff. ~. RcLc~t, maybe you can ~wer_ But 15 ~m to~m ho~s, ~y ~ h~ing about x mar 17 t~wn hon~s ~nd t~ NR-6 just to ~¢ south along t~: -- [8 ~G. ~: ~e to~ fl~cs am claq_qified t9 as ain~e-f~ly u~s, So b~m of Ca~ no buff~ is 21 Hewers, if mzdti-fmniLy ~ &vel~, then t~.y wil~ 22 ~ p~'ide n buffs. ~e b~fer is b~ on ~c em. 23 It's no~ b~d m ~ zoniag. 24 COMMISSIONER RO~: O~y~ ~mk you. Page 138 1 Com. mi~aionerg. Once again, ~his is a public tmarmg. I 2 see no one else and have no l'ur£her cards of people thai 3 would like to speak before lhis Comtmssion. At this point 4 in time, we'd give the petictrmcr a chance for ~ebutta[. $ MP.. CI4ANNELL: Mr. Chairman, ~his is rile 6 original (bvcloDer who did the first two phases. I was 7 t~c[ involved m the pr~ect at that point m ti~. It's 8 not my understanding *.hal h~ ptap0sely misled or changed 9 tl~ngs. Tn working with myself, a ~w engi'ra:er, and thc 10 architect on bo~rd, it w~s our mcornrnendatio,~ to look at a t I mom horse pmauct to face Poinsettia mainly' l~r 12 stroctscal~ and for buffeting to ttuc zcnaing across tim ]3 street. We Wied to, wiLk Lt~e placeme,t of an alley and ~ 4 with ackaow'ledging ~t TXU is witting a wider easem~m[ 15 back chore: to t~ to minLn~m thc kmp~t on the existing 16 neighborhood. Tlmse are rear~ of Ih~ bourns. We wi/l 17 tim meet thc mar of mmr housg~ so wc hope tim bnp~t 18 would he mnimum. 19 And, y~s, wc ~ow l~mt ~her~ afc some 20 con,ems ['rem the neighberhood, W~'re going to try our 21 best to minAnize chose, Wc arc looking for a straight 22 cown home producL Il-' them [~ a way the Comrnissioq can 23 feel mo,: cmnfortable with our plans, ~,e' tl be certainly 24 happy to ~es[hc[ to llmt one use.. Mainly because of 25 buffering, I don't think we could -- we only have 130, 135 PLANNING AND ZONING COMMISSION Page 139 L Fo:[ of depth fight there sc~ we're very limi~l on 2 r~at narrow strip of land cnn yield. ] OOMMI:g~IO,Nb.;~- RC~-.I.ELr Ok~ty, T~tlk you 4 much. MS, Viers, would you care to gi,,,'~ [] cloclng 5 commit? Antl Ms, Rugland? 6 MS. VlERA: Yin. ] '¢/'Otlld I{k¢Io clariC3' 7 thai thc ¢,,fi,~ting c.~I-o zaaiag designation would allow 8 mulfi-f~mfiLy by r~l~t wifl~ Lknitation No. 6 that indieate~ ~ that ff tlc parcel is adjacent or has access r~ a [ ] pmx'id¢ m-lail un th~ first fl~or_ $0 as it is, the 12 developer l~s ~l]e ],i~_h~ ~o develop multi-family, 13 >'rs. R^~-[.^.~; e. egavding r~c Comp~chga~si~ 14 PLan amnen&~kq, staff has no f'm't, tt~ comments. ] 5 COMMI.~.qlC. NER msa~: .~ncl. once again, just 16 aa a v~mindc~; v~ leave token and arld~sod in public 17 format here both Itcras No_ $ and 1',%. 9 on o,r 18 r see no o~ el.so wlao wmtld like to stxx-~k na3agllng this 19 and I ill close Ihe public henri,. Commissiorax Mulrc~. 20 COMMiSSioNER M'I_FLRO¥: well, on thc 2t No. 8 I'm ready to make a mo~ion. 22 COMMISSlON~.R Rm[-TRL-' W¢'~'C read5, to 23 ymr motion, 24 coxem~xsro_~,'u ._%iULII.DY: I lllO'v'r_, approval a[Ltl 25 wa.t to cil~ tl~ ~aff's ]alLmmge. this am, shottk[ have MAY 22, 2002 Page 140 Page 137 - Page 140 15 ORDINANCE NO. AN ORDINANCE AMENDING THE DENTON PLAN 1999-2020 BY ADOPTING AN AMENDMENT TO THE LAND USE PLAN OF THE LAND ELEMENT OF THE DENTON PLAN FOR THE CITY OF DENTON, TEXAS; THE AREA FOR AMENDMENT ENCOMPASSING APPROXIMATELY 9.1 ACRES AND GENERALLY LOCATED SOUTHEAST OF THE iNTERSECTiON OF LOOP 288 AT SHERMAN DRIVE, APPROXIMATELY 510 FEET EAST OF POINSETTIA BOULEVARD. PROViDiNG A SAVINGS AND REPEAL CLAUSE; AND PROViDiNG AN EFFECTIVE DATE. (CA02- 0001) WHEREAS, Bel Air Development, LTD initiated a comprehensive plan amendment to the land use plan of the land elemem of the DeNon Plan for 9.1 acres of land from Community Mixed Use Activity Cemers to Neighborhood Cemers which is more particularly described in Exhibit "A" attached hereto and made a part hereof by reference (the "Land Use Plan Amendmem"); and WHEREAS, on December 7, 1999, the City of DeNon adopted the DeNon Plan, 1999- 2020; and WHEREAS, on May 22, 2002, the Planning and Zoning Commission held a public hearing and recommended approval of the Land Use Plan Amendmem; and WHEREAS, the City Council, after a public hearing on June 18, 2002, finds that the recommended Land Use Plan Amendmem is in the best imerests of the health, safety and general welfare of the citizens of the City of DeNon, Texas; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council hereby approves Land Use Plan Amendmem to the DeNon Plan, 1999-2020. SECTION 2. All ordinances or parts of ordinances in force when the provisions of this ordinance became effective, which are inconsistem or in conflict with the terms or provisions contained in this ordinance, are hereby repealed to the extent of any such conflict only. The non- conflicting sections, semences, paragraphs, and phrases shall remain in full force and effect. SECTION 3. The City staff is directed to change the land use plan map to the DeNon Plan in conformity with the Land Use Plan Amendmem. Umil such map change is made a copy of this ordinance shall be attached to the DeNon Plan, 1999-2020 showing the Land Use Plan Amendment. SECTION 4: This ordinance shall become effective immediately upon its passage and approval. Page 1 PASSED AND APPROVED this the __ day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 EXHIBIT "A" The Comprehensive Plan Amendment encompasses approximately 9.1 acres. The total 9.1 acres will be amended from Community Mixed Use Activity Center to Neighborhood Center. LOCATION MAP Page 3 Agenda 02-021 06/18/02 #41 AGENDA DATE: DEPARTMENT: AGENDA INFORMATION SHEET June 18, 2002 Planning Department CM/DCM/ACM: David Hill, 349-8314 SUBJECT - Z02-0024 (Beverly Park Estates Phase 3) Hold a public hearing and consider adoption of an ordinance rezoning multiple parcels totaling approximately 11.3 acres from Neighborhood Residential 3 (NR-3) and Community Mixed Use General (CM-G) zoning districts to Neighborhood Residential Mixed-Use 12 (NRMU-12) and Neighborhood Residential 6 (NR-6) zoning districts. The property is generally located approximately 200 feet east of Sherman Drive and Poinsettia Boulevard intersection. Town homes and detached single-family dwelling units are proposed. The Planning and Zoning Commission recommends approval (6-1). BACKGROUND Applicant: Bel Air Development, LTD., Dallas, TX The applicant is requesting to rezone multiple parcels totaling approximately 11.3 acres. The property was previously zoned Planned Development 90 (PD-90). (See chart under staff Analysis section) A comprehensive plan amendment for approximately 9.1 acres of the subject site has also been requested. If the amendment is approved, a Neighborhood Residential zoning category will be consistent with the amendment. There is no opposition within 200 feet of the subject site. A simple majority vote from the City Council is required to approve the proposed zoning application. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval (6-1, Keith opposed). ESTIMATED PROJECT SCHEDULE The subject property is not platted. A final plat is required prior to the issuance of any building permits. PRIOR ACTION/REVIEW The following is a chronology of Z02-0024, commonly known as Beverly Park Estates Phase 3: Application Date - April 15, 2002 DRC Date - April 25, 2002 P&Z Date - May 22, 2002 No neighborhood meeting was held. FISCAL INFORMATION Development of this property will increase the assessed value of the city. short-term public improvements that are the responsibility of the city. It will require no ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification 4. Photographs 5. Zoning Plan 6. Planning and Zoning Commission Minutes, May 22, 2002 7. Draft Ordinance Prepared by: Deborah Viera, AICP Planner II Respectfully submitted: Douglas S Powell, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary_ of Zoning Request The applicant is requesting to rezone multiple parcels totaling approximately 11.3 acres from Neighborhood Residemial 3 (NR-3) and Community Mixed Use General (CM-G) zoning districts to Neighborhood Residemial Mixed-Use 12 (NRMU-12) and Neighborhood Residemial 6 (NR-6) zoning districts as follows: Parcel Acreage Existing Proposed Net Effect Zoning Zoning 1 2.4 NR-3 NRMU- 12 More Intense 2 5.1 CM-G NRMU- 12 Less Intense 3 3.8 CM-G NR-6 Less Intense The applicam is proposing to develop town homes on Parcels 1 and 2 and detached single-family dwellings on Parcel 3. The proposed developmem is part of a larger master-planned developmem where retail, offices, dwellings-above-businesses, and multi-family land uses are proposed with the purpose of creating a community cemer node. The proposed developmem is very similar to the approved detailed plan under the previous Planned Developmem 90 (PD-90) zoning designation. The NRMU-12 zoning designation would allow limited retail sales and services and professional services and offices. A multifamily developmem with a maximum of 12 units per acre could also be developed. This analysis is based on the assumption that the comprehensive plan amendmem is approved. The existing CM-G zoning designation would allow the developmem of a variety of high density housing, including multi-family, and commercial uses by right. Existing Condition of Property_ Property History. February 20, 2002 - The subject property was placed in the Neighborhood Residemial 3 (NR-3) and Community Mixed-Use General (CM-G) zoning districts and land use classifications by Ordinance 2002-040. Previous to the adoption of the Developmem Code, this property was zoned Planned Developmem 90 (PD-90). Adjacem zoning. North: Community Mixed-Use General (CM-G) South: Neighborhood Residemial 6 (NR-6) East: Neighborhood Residemial 4 (NR-4) West: Neighborhood Residemial 3 (NR-3) Comprehensive Plan Analysis The DeNon Plan idemifies the subject site as a Community Mixed Use Cemer area; however, a comprehensive plan amendmem has been proposed for this area (CA02-0001). The new proposed land use designation would be Neighborhood Center land use area. Neighborhood Cemers may develop in convemional patterns or may be developed in a pattern of 'neighborhood centers'. Neighborhood centers are oriented inwardly, focusing on the center of the neighborhood and containing facilities vital to the day-to-day activity of the neighborhood. A neighborhood center might contain a convenience store, small restaurant, personal service shops, church or synagogue, daycare, individual office space, a small park and perhaps an elementary school. The comprehensive plan calls for a variety of housing types and densities within the neighborhood centers. Pure residential areas, regardless of density should have pedestrian connectivity to small-scale neighborhood service uses such as coffee shops, bookstores, childcare facilities or civic uses such as parks, recreation centers or schools. Neighborhood densities should decrease in concentric areas away from a mixed-use center. By developing higher density housing adjacent to a community mixed-use center, that may include commercial uses, will provide services to the residents within a walking distance. It will also promote convenient nodes for transit services. Development Review Analysis Transportation Trip Generation. Assuming the maximum density permitted under the NR-6 and NRMU-12 zoning designations, the proposed development would generate approximately 1,100 trips per day. This is approximately 5,300 less trips per day than the traffic that would be generated if approximately 9 acres were developed as general retail and 2 acres were developed as single- family lots. Access. The development will have access from Poinsettia Drive, which is proposed to be extended. Road Capacity The Denton Mobility Plan identifies Poinsettia Drive as a Local street. This street is designed to be a two (2) lane undivided street without parking, providing two (2) lanes of through traffic. As such, its designed traffic capacity allows for a tolerable traffic flow of up to 9,100 trips per day. Poinsettia Drive is proposed to be extended to the eastern boundary of the subject property. No traffic count is available for this road Connectivity Any proposed development will be required to provide two streets connecting to the property adjacent to the east. Development Code/Zoning Analysis The proposed NRMU-12 zoning designation (Parcels 1 & 2) would provide a transitioning density between the predominantly NR-3 and NR-6 zoning districts to the south and the existing CM-G zoning district north of the proposed Poinsettia Drive. The NRMU-12 zoning designation would also support the future community mixed-use center proposed for this area. High-density residential districts adjacent to community center nodes are key elements for the development and success of center nodes. The 3.8 acres proposed to be rezoned as NR-6 (Parcel 3) would consolidate the existing NR-6 zoning district to the south and would also provide a wider buffer between the proposed NRMU- 12 and the developed Beverly Park Estate Phase 1 subdivision. Overall, the proposed zoning request would downzone approximately 9 acres that otherwise could be developed as a commercial sites and would upzone approximately 2.4 acres. Staff Findings If the proposed comprehensive plan amendment is approved, staff finds: 1. The proposal is consistent with The Denton Plan. 2. The proposed NRMU-12 and NR-6 zoning districts combined are a reduction in intensity to the existing zoning and would generate less traffic than if the subject property were developed according to the existing zoning designation. 3. The NRMU-12 zoning designation would complement the future community mixed-use center proposed for this area and will serve as a transition. 4. The 3.8 acres, proposed to be rezoned as NR-6 (Parcel 3), would consolidate the existing NR-6 zoning district to the south. ATTACHMENT 2 Maps NORTH Location/Zoning Map LOCATION MAP Scale: None NORTH Land Use Map Scale: None ATTACHMENT 3 Public Notification NORTH Notification Map Newspaper Notification Date: May 11,2002 200' Legal Notices* sent via Certified Mail: 500' Courtesy Notices* sent via 1st Class Mail: 55 Number of responses to 200' Legal Notice · In Opposition: 0 · In Favor: 0 · Neutral: 0 31 Percent of land within 200' in opposition: 0 % Scale: None *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 Property Owner Responses Outside 200 Ft. Notification Limits Property Owner Name In favor Comments and Address /opposed* Jonathan W. Taylor, Favor I request there be no two story homes or 3908 Zilda Way structures built on the proposed site. John Peters, Opposed No comments 3812 Calvert Lane Glen P. McKenzie, Opposed No comments 1813 Le Sage Ct. Bret Will, Opposed No comments. 1800 Le Sage Ct. James R. Durlane, Opposed I had to mark opposed to the proposed changes 1809 Le Sage Ct. because I do not understand what these zoning districts mean. I tried to go on-line for information about the proposal with no luck. I will be attending the P&Z Commission meeting on May 22 to get educated on this. I have been to past neighborhood hearings on proposed changes by the developer and I am concerned about what they are doing. Noel and Shelly Carrera, Opposed See attached letter. 1409 Manten Blvd. *A copy of the original notice can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 4 Photographs 10 Attachment 5 ~. i:;, - 10 Condens~ItTM 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 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 Page 117 COMMISSIONER RISHEL: That will bring us to Iran No. 8 on our Agenda and I believe that Itan No. 8 should be shown on our docucam. I believe that Ms. Ragland will present. MS. RAGLAND: Good evening, Conunissioners. Dedra Ragland, Small Area Planning Manager. The applicant, Bel Air Development, Limited is requesting to Page 119 that is proposed to be developed as the town homes will provide a good transition in between the existing residential uses to the south and the existing CM-G zoning to the north. If the Comprehensive Plan is approved as proposed, the zoning request will be in compliance. I am available to answer any questions that you may have. amend the Comprehensive Plan by changing approximately 9.1 acres from Community Mixed Use Activity Center to a Neighborhood Center land use. Thc Comprehensive Plan amendment coincides with the zone change request from Conununity Mixed Use General to Neighborhood Residential 6 and Neighborhood Residential Mixed Use 12. The applicant is proposing moderate to high density residential development which includes single-family and town home residences. The property was previously zoned eD-90 which allowed a variety of single-family, multi-family retail, office, and commercial uses. The proposed amendment from Community Mixed Use Activity Center to Neighborhood Center is compatible with the surrounding land uses. It is also consistent with the Denton Plan. And when the Comprehensive Plan Land Use Map was adopted, this area should have retained a residential land use designation. Since the staff report was written, staff Page 118 has received one notice in favor of this proposal which was passed out to you. At this time if there are no questions, I would like Ms. Viera to present the associated zoning case. COMMISSIONER RISHEL: Let me suggest that we also open up for public hearing Item No. 9 on our Agenda which is related to this same topic and we can hear both the discussions at the stone time and then we will address them separately as individual items for consideration. It will also give us the false impression that we're actually moving along here. MS. VIERA: All the information that Ms. Ragland provided pertains also to my zoning case. In your backup there's a chart that provides the acreage of all the different zoning districts that the applicant is requesting. Portion No. 1 highlighted on the chart 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 COMMISSIONER RISHEL: Thank you very much, staff. This is a public hearing. And is the petitioner here and would they like to present? MR. CRANNELL: Mr. Chairman, members of the Commission, my name is Jeff Crannell. I'm with Crannell Engineering, 9127 King Arthur Drive, Dallas, Texas. I'm here this evening representing the developer and landowner. And trying to present this case, we met with City staff on numerous occasions to work out what we think arc some minor housekeeping items and we think we've got the first initial review to the Commission in order to proceed with the development of this project. Actually, this is going to be the third phase of what we call Beverly Park Estates. Beverly Park Phase 1, Beverly Park Phase 2, are existing, nearing completion. We are wanting to proceed with Beverly Park Phase 3 which will be the remaining residential portion. Since we started this project many years Page 120 1 ago, we've had the interim regs and the new regs come in 2 in the interim so that we are now having to retrofit this 3 site into the existing zoning. I'm very strongly in favor 4 of the Comp Plan amendment change and the zoning changes 5 to get more closely back to what was initially planned for 6 this subdivision. So what we're proposing is the Comp 7 Plan, and I'll use the words in your staff comments, it's 8 just a mapping oversight. So we hope to correct the Comp 9 Plan amenchnent so that we can then proceed with developing 10 this project per the original preliminary plat. 11 As a land plan, I feel like the changes are 12 very beneficial to this site in order to buffer the 13 existing cm-a and multi-family to our north. We will have 14 existing Poinsettia Drive that will be basically extended 15 through this site and also provide a buffer between the 16 multi-family sites that are existing, CM-G to Our north. includes 2.4 acres to be rezoned from NR-3 to NRMU-12. There's another parcel that encompasses 5.1 acres from CM-G to NRMU-12. And the third parcel is 3.8 acres and it changes from a CM-G zoning district to NR-6. The applicant is proposing to develop attached single-family dwelling units better known as town homes, and also detached single-family units. The NR-6 zoning, the proposed NR-6 zoning designation will compliment the existing NR-6 zoning south of the property and the NRMU-12 17 18 19 20 21 22 23 24 25 So this is a good buffering down to the proposed zoning that's there and I think it's just a minor housekeeping itcun. We hope to plan a good streetscape for Poinsettia that will be a very attractive situation. We have some architects working on the CM-G mixed use at this point in time that we think will bca very strong benefit to this part of town. So we're moving forward and would like your blessing on these issues this evening. And at PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 117 - Page 120 CondenseltTM Page 121 1 this point, if you have any questions, be happy to answer 2 those. 3 COMMISSIONER RISHEL: Mr. Crannell, we 4 appreciate your presentation. Mr. Keith. 5 COMMISSIONER KEITH: I have a question. Is 6 this NR-6, that's already designated that's right down -- 7 MR. CRANNELL: Yes, there's a strip right 8 here at the base that's already NR-6 that we're leaving in 9 tact. 10 COMMISSIONER KEITH: Okay. Thank you. 11 COMMISSIONER RISHEL: cormnissioner Roy. 12 COMMISSIONER ROY: And specifically can you 13 tell us what you plan to build there? 14 MR. CRANNELL: Yes. NR-6 iS going to be a 15 continuation of the existing single-family homes that we 16 have right now. That will encompass everything. There is 17 a high power line or an electric easement that cuts across 18 east to west through this site. Everything south of that 19 will be the NR-6 designation identical to the current 20 neighborhood that we've designed previously. 21 COMMISSIONER ROY: Above -- 22 MR. CRANNELL: SOITy. Go ahead. 23 COMMISSIONER ROY: That little section 24 above that -- 25 MR. CRANNELL: The narrow strip that's 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 122 about 130 feet wide, that will be one single row of town homes that will face proposed Poinsettia Drive and that will be then our buffer to the existing multi-family mixed use to our north. I've got a plan here if this will show on the screen. We are very near to submitting a preliminary plat and the other documents to move forward 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 Page 123 MR. CRANNELL: xhat's a good question. I wish I knew the answer to that. Maybe Larry could help us OUt. COMMISSIONER RISHEL: Mr. Reichhart. MR. REICHHART: It was rezoned during the Development Code, the mapping of the Development Code. COMMISSIONER MULROY: I was under the very finn understanding that we were not revoking eDS that had meaningful activity on them. MR. REICHHART: This eD did not really have meaningful activity on for -- there was a zoning request, like, two years ago. The property owner was sent a letter stating the intentions to rezone this property. And if -- given the option to contact City staff if they wanted to maintain their existing eD. They did not do that. COMMISSIONER RISHEL: They did not comment. MR. REICH~X: xhey did not contact staff regarding that. COMMISSIONER RISHEL: correct. Okay. COMMISSIONER MULROY: NOW, is this PD separated from their existing development, their first two phases or is it all part of that first phase? MR. REICHH~T: The eD included Phase 1, 2, and what they're calling Phase 3. It was included and built out Phase 1 and 2. Page 124 1 COMMISSIONER MULROY: okay. Well, my 2 understanding and I have participa~l in most of our 3 evolving changes, that he wouldn't have had to respond 4 because he was building out his eD over time. And looking 5 back at ones that were laid donnant ten, 15, 20 years were 6 problematic, not current er)s. So that's my question is to with this residential portion of the design. Actually, I faded back the existing subdivision that's right here wrapping us to the south and west. This is the proposal that we have up to the power line easement that cuts across this site, and then we'll have town homes facing Poinsettia to our north. COMMISSIONER ROY: SO the existing homes will be backing up or adjacent to NR-6, to another single-family dwellings? MR. CRANNELL: Yes. On the south and east there will be a short strip here that will be buffering to the back of the town homes. We do propose a City alley to be the buffer between that. We also have a 50-foot wide power line easement that they're asking for additional easement so -- COMMISSIONER ROY: Thank you. COMMISSIONER RISHEL: Commissioner Mulroy. COMMISSIONER MULROY: Yes. Thank you, Mr. Chairman. Sir, how did you lose your PD-90 designation? 7 8 9 l0 ll 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 why you have to come back through this process. I'm reading the staff report. It says essentially what you've asked for what's already been approved previously and is in line with that. MR. CRANNELL: It has. These, I think, are housekeeping items. I've just joined this project for the developer and I can't give you a lot of history. I can tell you that his intent is to build out what he originally intended to. COMMISSIONER MULROY: okay. Thank you. MR. REICHHART: I need to point out that even with these changes, and it's very similar to the old eD, they would have had to come forward and do an amendment to the detailed plan which would have been the same process that they're going through now. COMMISSIONER MULROY: But I'm not sure they would have to go through a Comp Plan change. Anyway. Thank you very much. COMMISSIONER RISHEL: commissioner Powell. PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 121 - Page 124 CondcnseItTM 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 Page 125 COMMISSIONER POWELL: A question for the developer. These town homes, were they in your original PD? MR. CRANNELL: NO~ those were not. COMMISSIONER POWELL: what was there? MR. CRANNELL: That was a continuation of the NR-6. COMMISSIONER POWELL: And that got interrupted by the power line or just by time or what are we talking about here? MR. CRANNELL: I'111 not sure what your question is but we do have an overhead power line easement here that TXU wants to expand. We then have existing multi-family to our north and we felt like that was a good buffer. And we're more concerned about strcetscape as we go down Poinsettia of single-family homes facing multi-family homes. So we felt like the town home was a better buffer. We do have rear entry and we do keep all these driveways off the street, whereas the original had driveways and houses facing the street. We think Poinsettia really will be a residential collector and we wanted to keep that traffic off of there. COMMISSIONER POWELL: Yeah. I didn't mean to be negative about it. That wasn't my intent at all. I was just trying to get a handle on how you got from the 1 2 3 4 5 6 7 8 9 I0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 127 COMMISSIONER KEITH: HOW is the parking for the residents going to be managed? Are they going to have carports in the back, garages? I mean, what's the schematic or scheme of -- MR. CRANNELL: I have not seen the architectural plans for the town homes yet. My assumption is they'd be enclosed garage with two spaces behind the garage backing up to the alley. COMMISSIONER KEITH: SO they'll be entering from the back side instead of from the -- MR. CR~NNELL: Right. That's the idea. We don't want any vehicular access -- well, we don't want any driveways or we might want -- I'm not sure if they'll restrict parking there but we don't want any resident access from the front. COMMISSIONER KEITH: okay. And getting back to this NR-6, yOU said that was designated when you first platted all of this or the rest of the development down in there? MR. CRANNELL: This is existing. COMMISSIONER KEITH: Yeah, that's existing. But this was platted in conjunction with that or separate? MR. CRANNELL: The preliminary plat, to my knowledge, included this portion as what we call Phase 3. COMMISSIONERKEITH: okay. I'm just trying Page 126 1 single-family to the town houses. I firmly believe the 2 City needs more of what you're developing there so I'm 3 positive about it, but I just didn't get a handle on how 4 it got here. Thank you. 5 COMMISSIONER RISHEL: Mr. Crannell, as I 6 look at your development, and I'm seeing some sort of 7 connection between the new phase and what I guess is 8 Inwood Street and Le Sage Court, are there pathways that 9 are connecting those down below? 10 MR. CRANNELL: Those are actually drainage 11 easements and sanitary sewer easements. 12 COMMISSIONER RISHEL: I see. 13 MR. CRANNELL: NO pathways, no access 14 points. 15 COMMISSIONER RISHEL: Okay. I could not 16 determine exactly what that was. Okay. Any further 17 COlnments or questions, Commissioners? Mr. Keith. 18 COMMISSIONER KEITH: Thank you. Leave your 19 blueprint there or your plat there. I'm looking at your 20 town homes. Is that going to be solid or are those lots? 21 MR. CRANNELL: NO, those are proposed lots. 22 We're proposing probably about four to six units and then 23 an open space gap and four to six more. The architect is 24 working on that. This is my first draft of it but the 25 architect is going to -- Page 128 1 to get a handle on that just to become familiar with it. 2 Thank you. 3 COMMISSIONER RISHEL: Thank you. Thank 4 you, Mr. Crannell. Once again, this is a public hearing. 5 I have several cards of people that I believe would like 6 to speak. Once again, if you would like to address the 7 Commission, if you'd fill out a card to speak which are at 8 the front entry as you might have come in. And, once 9 again, we are addressing at this point in time Item No. 10 8 and Itmn No. 9 on our Agenda jointly. And when they 11 come to addressing the items, we will address them 12 separately to a vote. The first card that I have is from 13 Mr. Jonathan Taylor. Mr. Taylor. And, once again, if you 14 would please give us your name and address even though you 15 might have spoken before. 16 MR. TAYLOR: Yes. I did turn in a card 17 this time~ 18 COMMISSIONER RISHEL: Thank you, sir. 19 MR. TAYLOR: My name is Jonathan Taylor. I 20 live at 3908 Zilda Way which is right next to NR-6 which 21 is approximately exactly right here. That's my house 22 right there. I'm pleased with the development prospect on 23 the NR-6 here with the continuation of what is here now. i24 I love where I live now. It's beautiful. I'd like to see 25 this NR-6 pretty much close to what it is now, which the PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 125 - Page 128 CondenseltTM 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 129 developer did say he was going to do. So that's great. My concern, a little bit of concern is this town home site. Town home sounds great but are they going to be great? Are they going to be nice, well built, quality places to live, not just inside but outside aesthetically? I drive by, I drive on Poinsettia every day to go to work and back from work and it would be nice if they were good quality places, which they might be or probably will be. This NRMU-12, referencing what Mr. Kcith said earlier, apartments could be built in that Code, correct? COMMISSIONER KEITH: uh-huh. MR. T^¥LOR: This probably won't happen but what if this didn't work, this town home idea, and all of a sudden apartments started going up? I don't want that. I moved from Bell Avenue near Strickland Middle School to get away from apartments. Enough Said. I do agra: with the development. It gives me a positive feeling. I'm just concerned, again, about the possibility of maybe apartments coming in under this NRMU- 12. thank you. COMMISSIONER RISHEL: Thank you, Mr. Taylor. The next card that I have is from Jeanmarie Goff. Ms. Goff. MS. GOFF: Good evening, Mr. Chairman and 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 Page 131 NRMU-12 in my neighborhood. I would be afraid that there would be apartments moving into that area, also. My vote, if I had one, would be not to allow those to be built behind my home. And I hope that you will take that under consideration. Thank you. COMMISSIONER RISHEL: We have some questions, Ms. Goff. Would you stay with us? Commissioner Keith. COMMISSIONER KEITH: MS. Goff, when you bought your home -- how long have you lived there? MS. GOFF: I've lived there less than six months. COMMISSIONER KEITH'. Okay. When you bought your home, when you bought it, did you do so under the understanding that there would be residential behind you? MS. GOFF: That was my understanding. I'm not the first owner in the home. I am the second. But both talking with the people in thc information center and the people I bought the home from, they led me to believe that there were going to be single-family dwellings behind my home. Now, across the street is a different matter and I'm not addressing that matter. But behind me it was my assumption, from what they told me -- COMMISSIONER KEITH: when you say across the street, would you point to it? Page 130 1 Council members. My name is Jeanmarie Goff and I live at 2 1301 Manten Boulevard and that's right at the corner of 3 Poinsettia. 4 I'm here this evening to voice my 5 opposition to the proposed plans. I also moved from an 6 area that had homes and apartments and I've just finally 7 moved out of that area to a wonderful neighborhood that 8 I'm so very proud of, that I hope will continue to stay an 9 NR-6, new term I've learned. So living on the corner, I'm 10 at the main entrance to Beverly Park Estates. When I 11 bought this property, I was under the assumption that I 12 was going to be living in a neighborhood with homes like 13 mine and I'm finding out that there are going to be town 14 homes directly behind my house, and I'm not very pleased 15 with that. 16 Also, since I've moved in the home I've 17 made a lot of outdoor improvements to my property. I had 18 many of my neighbors here who drive by and wave and thmnbs 19 up and they like to see what I've done to my yard. And 20 I'm afraid that adding the town homes may detract from 21 that. I grew up in Singing Oaks and we had homes there, 22 we had apartments there, and it was a neighborhood that I 23 was glad to move from. I want a neighborhood that 24 consists of homes like mine, not with town homes. And 25 I've seen some very nice ones but I don't want any type of 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 Page 132 MS. GOFF: Across Poinsettia. COMMISSIONER KEITH: oh, okay. MS. GOFF: I have heard that they were going to put possibly apartments over on that side. COMMISSIONER KEITH: Okay. Thank you. COMMISSIONER RISHEL: Thank you very much, Ms. Goff. MS. GOFF: Thank you. COMMISSIONER RISHEL: I have a card from Anne Obenshain. I don't know if I pronounced that correctly. Would you care to speak to the Commission? Okay. Her card says NRMU-12 zoning is too broad. Rezoning should be postponed until this category is narrowed or reconsidered. Thank you very much for your colmnents. I have a card from a Matt Cullum. Mr. Cullmn, would you care to present? MR. CULLUM: Hello. My name is Matt Cullmn. I live at 1409 La Mirada. And we're basically in opposition of this because, and this kind of addresses Mr. Keith's question, we are original owners of our property. We purchased it and closed May of last year, and we were led to believe as a specific part of their sales presentation that there were going to be zero lot line homes directly behind us. We live currently right PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 129 - Page 132 Condens¢ItTM Page 133 1 here so we would be, just basically, on the comer of all 2 this. We were told there would be zero lot line homes 3 back there. They talked about the possibility of 4 apartments further back but they told us not to worry, 5 that what we would have back there are what they call 6 garden homes. So, basically, I'm in opposition to this. 7 COMMISSIONER RISHEL: Thank you, Mr. 8 Cullmn. That's all the cards that I have, that have been 9 presented to me. Would you care to address thc 10 Commission? Commissioners. Please. Once again, if 11 you'd give us your name and address. 12 MR. DURLAND: My name is James Durland. 13 COMMISSIONER RISHEL: Let me ask you, have 14 you heard the call for us if you wanted to speak? 15 MR. DURLAND: This is my first time and 16 I'll learning the fast way. 17 COMMISSIONER RISHEL: Thank you very much. 18 I don't want to be chided for being fair to the public. 19 MR. DURLAND: I live at 1809 La Sage Court. 20 My property backs up directly to -- 21 COMMISSIONER RISHEL: would you give us 22 your name again? 23 MR. DURLAND: Jmnes Durland. And I'm 24 wondering, the developer, are these going to be changed to 25 6,000 square foot lots as opposed to 7,000 square foot? 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 Page 134 I'm taking NR-6 refers to square footage of a lot. COMMISSIONER RISHEL: Mr. Reichhart might clarify that for you. MR. REICHHART: NO, sir. NR-6 refers to the density per units per acre. You can get six units per 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 135 homes. All this out here, I'm not ignorant, this was going to be cmmnercial. She never mentioned apartments. She said single-family dwellings. I forgot the term she used but zero lot line. Garden homes is the term she used. So we were misled and I've been there for over three years. In fact, when I bought the home, they didn't even have a model home for us to look at. So I would like to see some more firm drawings by the developer before y'all approve this. Thank you. COMMISSIONER RISHEL: Thank you, Mr. Durland. Conunissioner Roy. COMMISSIONER ROY: Mr. Reichhart, you said, if I understood you correctly, that NR-6 does not specify square footage, a minimum on the lot. MR. REICHHART: That's correct. COMMISSIONER ROY: I believe it's a minimum square foot of 6,000. MR. REICHHART: In subdivisions of two acres or less. COMMISSIONER ROY: oh, I see. Okay. Yeah, you're right. MR. REICHHART: If it's a small subdivision, there is a lot size requirement. COMMISSIONER ROY: Okay. Thank you. MR. REICHHART: Thank you. Page 136 COMMISSIONER RISHEL: Any further questions or conunents, Commissioners? Commissioner Powell. COMMISSIONER POWELL: A short comment. It appears that none of those other four people came to this particular meeting, those four that like NRMU-12. acre and there is no lot size requirement, per se. I mean, it does relate to the size of the house that you build but there isn't a minimum, you can't say 6,000 or 5,000. MR. DURLAND: okay, Also, what I'm showing up here was given out a couple of years ago at a neighborhood meeting concerning this development. I've lived here for over three years. I was one of the first ones to move in. Originally along here, it was described to be duplexes which I think is more preferable to town 6 7 8 9 10 11 12 13 14 15 COMMISSIONER RISHEL: I think you have a point there. Commissioner Keith. COMMISSIONER KEITH: Yeah. One of the questions I have is and concerns is we're just going to have one entrance into that whole area, Poinsettia Boulevard. COMMISSIONER RISHEL: Connectivity, you mean. COMMISSIONER KEITH: well, call it whatever you want. It's just one cow trail or whatever. We're homes. Town homes are two stories. They'll be visible. And I'll speak for people that might be living around here, I assume the parking for the town homes will be behind the town homes. If I lived along here, I would not want someone's cars behind my back fence. That's something should be taken into consideration. Maybe they need to get firm drawings before y'all decide to approve this. And I, too, was misled by the original salesperson, Ms. Barbara Parker, who is no longer selling 16 just having one egress into it. And how many housing 17 developments are we going to have that are already in that 18 NR-6? 19 COMMISSIONER RISHEL: Mr. Reichhart. 20 COMMISSIONER KEITH: HOW many units are 21 designated for that? 22 COMMISSIONER RISHEL: would you care to 23 give that to the architect who is here? 24 MR. REICHHART: I'm not sure how many units 25 are proposed but eventually Poinsettia will traverse the PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 133 - Page 136 CondenseItTM Page 137 1 property to the east and connect to Kings Row through, you 2 know, other subdivisions. So this will have, eventually, 3 two entrances. 4 COMMISSIONER KEITH: Eventually. 5 MR. REICHHART: Once that property gets 6 developed. 7 COMMISSIONER KEITH: Yeah. Underscore the 8 word "eventually." I just have a lot of concem regarding 9 that because they're coming in putting town homes and 10 everything, that's rather dense. Thank you very much. 11 COMMISSIONER RISHEL: Coamnissioners, any 12 further comments or questions? Commissioner Roy. 13 COMMISSIONER ROY: Yes. This perhaps is 14 for staff. Mr. Reichhart, maybe you can answer. But on 15 these town homes, they were talking about a rear entrance. 16 Is there a requirement for any type of buffer between the 17 town homes and the NR-6 just to the south along that -- 18 MS. VIERA: The town homes are classified 19 as single-family uses. So because of that, no buffer is 20 required between both, between the NR-6 and the NRMU-12. 21 However, if multi-family is developed, then they will need 22 to provide a buffer. The buffer is based on the use. 23 It's not based on the zoning. 24 COMMISSIONER ROY: okay. Thank you. 25 COMMISSIONER RISHEL: Any further comments, Page 138 1 Conunissioners. Once again, this is a public hearing. I 2 sec no one else and have no further cards of people that 3 would like to speak before this Commission. At this point 4 in time, we'd give the petitioner a chance for rebuttal. 5 MR. CRANNELL: Mr. Chairman, this is the 6 original developer who did the first two phases. I was 7 not involved in the project at that point in time. It's 8 not my understanding that he purposely misled or changed 9 things. In working with myself, a new engineer, and the 10 architect on board, it was our recommendation to look at a 11 town home product to face Poinsettia mainly for 12 streetscape and for buffering to the zoning across the 13 street. We tried to, with the placement of an alley and 14 with acknowledging that TXU is wanting a wider easement 15 back there to try to minimize the impact on the existing 16 neighborhood. Those are rears of the houses. We will 17 then meet the rear of our houses so we hope thc impact 18 would be minimmn. 19 And, yes, we know that there are some 20 concerns from the neighborhood. We're going to try our 21 best to minimize those. We are looking for a straight 22 town home product. If there is a way the Commission can 23 feel more comfortable with our plans, we'll be certainly 24 happy to restrict to that one use. Mainly because of 25 buffering, I don't think we could -- we only have 130, 135 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 Page 139 feet of depth right there so we're very limited on what that narrow strip of land can yield. COMMISSIONER RISHEL: okay. Thank you very much. Ms. Viers, would you care to give a closing comment? And Ms. Ragland? MS. VIEP, n: Yes. I would like to clarify that the existing cm-o zoning designation would allow multi-family by right with Limitation No. 6 that indicates that if the parcel is adjacent or has access to a collector, as Poinsettia is classified, they will need to provide retail on the first floor. So as it is, the developer has the right to develop multi-family. MS. RAGLAND: R~garding the Comprehensive Plan amenchnents, staff has no further comments. COMMISSIONER RISHEL: And, once again, just as a reminder, we have taken and addressed in public format here both Items No. 8 and No. 9 on our Agenda and I see no one else who would like to speak regarding this and I will close the public hearing. Commissioner Mulroy. COMMISSIONER MULROY: well, on the Item No. 8 I'm ready to make a motion. COMMISSIONER RISHEL: we're ready to hear your motion. COMMISSIONER MULROY: I move approval and I want to cite the staff's language, this area should have 1 2 approval, 3 COMMISSIONER HOLT: Second. 4 COMMISSIONER R[SHEL: It's boon movod by 5 Co~mnissiot~r Mulroy ,and ~ocondod by Co~mnissionor Holt 8 (COMMISSIONER KEITH VOTED IN OPPOSiTiON.) 10 [tom No. 9 on om' Ageada? i 1 COMMISSIONER POWELL: [ will move to 12 a~ow No. 9 aa Inesonmd. 14 w,~ th~ colmnont that that is not nocess,~ily as ml ,and 17 ~ow, and they have l~on doprived of ~oino rishts. And I flo ] 8 sympathizo with tho naighbors sad they havo fliffetoat 20 that it is ,all r~w to this .ama. Thank you. 22 Coimnissior~r Pow~ll ~d s~condod by Cmnmissior~r MulroV. 25 (COMMISSIONER KEITI~ VOIZ9 IN OPPOSITION.) Page 140 PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 137 - Page 140 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FROM NEIGHBORHOOD RESIDENTIAL 3 (NR-3) AND COMMUNITY MIXED- USE GENERAL (CM-G) ZONING DISTRICT CLASSIFICATIONS AND USE DESIGNATIONS TO NEIGHBORHOOD RESIDENTIAL MIXED-USE 12 (NRMU- 12) AND NEIGHBORHOOD RESIDENTIAL 6 (NR-6) ZONING DISTRICT CLASSIFICATIONS AND USE DESIGNATIONS FOR APPROXIMATELY 11.3 ACRES OF LAND GENERALLY LOCATED APPROXIMATELY 200 FEET EAST OF SHERMAN DRIVE AND POINSETTIA INTERSECTION AND LEGALLY DESCRIBED AS PORTION OF TRACT 5 OF ABSTRACT S. MCCRACKEN SURVEY; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z02-0024) WHEREAS, Bel Air Development Ltd. initiated a change in zoning for approximately 11.3 acres of land from Neighborhood Residential 3 (NR-3) and Community Mixed-Use General (CM-G) zoning district classifications and use designations to Neighborhood Residential Mixed-Use 12 (NRMU-12) and Neighborhood Residential 6 (NR-6) zoning district classifications and use designations; and WHEREAS, on May 22, 2002, the Planning and Zoning Commission concluded a public hearing as required by law, and recommended approval of the requested change in zoning; and WHEREAS, the City Council finds that the change in zoning is consistent with the Comprehensive Plan and Development Code; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The zoning district classification and use designation of the approximately 11.3 acres remaining of the 39.824 acre original tract of land, described as Abstract S. McCracken Survey, Tract 5, and more particularly described in "Exhibit A", is changed from Neighborhood Residential 3 (NR-3) and Community Mixed-Use General (CM-G) zoning district classifications and use designations to Neighborhood Residential Mixed-Use 12 (NRMU-12) and Neighborhood Residential 6 (NR-6) zoning district classifications and use designations. SECTION 2. The City's official zoning map is amended to show the change in zoning district classification. SECTION 3. 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. Page 1 of 2 SECTION 4. 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 5. 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 Demon 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 ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 of 2 Jun-07-02 03;00 P.02 Exhibit A Zoning Case I STATE OF TEXAS § COUNTY' OF DENTON § SITUATED in the State of Texas and County of Denton and being a 2.42acre tract of land and being more particularly described as follows: BEGINNING at a 1/2" iron rod for comer in thc West line of said tract THENCE North 00°26'54" East a distance of 153.25 t~et from a 1/2" iron rod: THENCE North 14037'39" East a distance of 60.00 feet to a 1/2" iron rod for comer at the beginning of a cur~'e to the left in the North line of said tract; THENCE along said curve to the left with a radius of 370.00 fl, a central angle of 13°51'0Y' and a chord which bears South 82°17'53" East for a distance of 89.23 ft for an arc length of 89.45 ft to a 1/2" iron rod; THENCE South 89°15'06" East a distance of 428.14 feet to a 1/2" iron rod for comer; THENCE South 00°46'36" West a distance of 195.58 feet to a 1/2" iron rod for comer; THENCE North 89°48'15" West a distance of 530.23 feet to a I/2" iron rod back to thc PLACE OF BEGINNING and containing 2.42 acres of land, more or less. Jun-07-02 03:00 P.03 Zoning Case 2 STATE OF TEXAS § COUNTY OF DENTON § SITUATED in the State of Texas and County of Denton and being a 5.11 acre tract of land and being ~nore particularly described as follows: BEGINNING al a 1/2" iron rod for comer in the West line of said tract THENCE South 89°12'47" East a distance of 1175,65 feet from a 1/2" iron rod: THENCE South 01 °56'58" West a distance of 184.21 feet to a 1/2" iron rod', THENCE North 89046'53" West a distance of 1171.94 feet to a t/2" iron rod; THENCE North 00°46'36" East a distance of 195.58 feet to a 1/2" iron rod back to the PLACE OF BEGINNING and containing 5.11 acres of land, more or less. Jun-07-02 03:01 P.04 Zoning Case 3 STATE OF TEXAS § COUNTY OF DENTON § SITUATED in the State of Texas and County of Denton and being a 3.78acre tract of land and being more particularly described as follows: BEGINNING at a 1/2" iron rod for comer in the East line of said tract THENCE South 01°51' 11" West a distance of 157.75 feet from a 1/2" iron rod: THENCE North 88°08'49" West a distance of 1165.06 feet to a 1/2" iron rod; THENCE North 00°58'27" West a distance o~' 124.47 feet to a l/2" iron rod; THENCE South 89°46'53" East a distance of 1171.94 feet to a 1/2" iron rod back to thc PLACE OF BEGINNING and containing 3.78 acres of land, more or less. Agenda 02-021 06/18/02 #42 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: June 18, 2002 Planning & Developmem Dave Hill, 349-8314 .~-~<~ SUBJECT - Z02-0023: (DeNon ISD) Hold a public hearing and consider adoption of an ordinance rezoning approximately 72.3 acres from an Agriculture (A) zoning district to a Neighborhood Residemial 3 (NR-3) zoning district. The site is generally located north of Loop 288, south of Long Road, east of Stuart Drive and west of Sherman Drive. The rezoning is required to bring property imo compliance with the new Developmem Code zoning classifications. The Planning and Zoning Commission recommends approval (7-0). (Z02-0023) BACKGROUND Applicant/Property Owner: DeNon Independem School District Denton, TX This property is one of five properties that were annexed imo the City during the Developmem Code process and therefore have retained their old zoning designation (Section 35.1.5.C of the Developmem Code, page 3). This application is to give this property a zoning designation that is in compliance with the new regulations. The DeNon Independem School District (DISD) is the property owner and is proposing an elememary school, a middle school, a high school stadium and a natatorium. The rezoning was originally proposed and advertised as Neighborhood Residemial Mixed Use (NRMU) because of the proposed high school stadium. Staff determined that public schools and related stadium uses are permitted in all districts and a NRMU zoning designation is not necessary. The Neighborhood Residemial 3 (NR-3) zoning designation will allow the property to develop in accordance with the DISD Master Plan and will bring this property imo compliance with the Developmem Code. Staff has discussed the proposed NR-3 zoning designation with Gene Holloway, Director of Planning for DISD, and he indicated that he is supportive of the request. To date, the Planning Department has received 2 responses in favor of this request. As there is no opposition, a simple majority vote is required to approve this request. In conversations with staff, the property owner raised no concerns regarding this application. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval (7-0). ESTIMATED PROJECT SCHEDULE The subject property is not platted. A final plat is required prior to the issuance of any building permits. PRIOR ACTION/REVIEW The following is a chronology of Z02-0023, commonly known as Demon 1SD: City Council Work Session - January 15, 2002 and January 28, 2002 Application Date - March 4, 2002 DRC Date - March 14, 2002 P&Z Public Hearing - May 22, 2002 No neighborhood meeting was held. FISCAL INFORMATION Developmem of this property will increase the assessed value of the city. It will require no short-term public improvemems that are the responsibility of the city. ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification (Property Owner Notification Map and Property Owner Responses) 4. Planning and Zoning Commission Minutes, May 22, 2002 5. Draft Zoning Ordinance Prepared by: Dedra Denee Ragland, AICP Small Area Planning Manager Respectfully submitted: Douglas[S. Powell, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary_ of Zoning Request The DeNon 1SD is requesting to rezone approximately 72.3 acres from an Agriculture (A) zoning district to a Neighborhood Residemial 3 (NR-3) zoning district. The NR-3 zoning designation allows agricultural uses, residemial uses, and limited institutional uses. Parks and Open Space, churches, outdoor recreational uses, and public schools are also permitted in the NR 3 zoning district. Existing Condition of Property_ Property History. October 2, 2001 - Prior to the adoption of the DeNon Developmem Code, the subject property was volumarily annexed (A-01-0001) and zoned Agriculture by Ordinance 2001-386. February 20, 2002 - Ordinance 2002-040 kept the subject property in the Agriculture (A) zoning district and land use classification. Adjacem Zoning. North: Extra-territorial Jurisdiction (ET J) South: Neighborhood Residemial 4 (NR-4) and Neighborhood Residemial Mixed Use (NRMU) East: Neighborhood Residemial 4 (NR-4) West: Neighborhood Residemial 4 (NR-4) The site is curremly undeveloped. Comprehensive Plan Analysis The subject site is located in an "Existing Neighborhoods/Infill Compatibility" future land use area. New development in this district 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. One of the most importam and critical techniques for discouraging sprawl is promoting urban infill developmem and redevelopmem. Strong mixed-use clustering, which require residemial and nonresidemial uses to be located in reasonably close proximity to each other is also encouraged. Developmem that is designed to promote an attractive, functionally and physically imegrated mix of commercial, office, retail, residemial and recreational land uses can occur away from existing urban areas and not represent urban sprawl if it consists of a complementary mix of residemial and nonresidemial land uses at medium to high densities. One measure of a community's idemity is its enduring landmark buildings and places. Most of these are civic or institutional in nature, public or quasi-public places that enhance the quality of life for all residems. Civic land uses include lands owned and utilized by public agencies or govemmems for the public good; lands dedicated as parks or open space; and, lands that are owned and operated in a quasi-public manner such as churches or private schools. Civic land uses are encouraged to locate within community and neighborhood activity cemers to help establish these areas as focal poims and to provide for the sharing of parking and other facilities. "The location, placement and design of public facilities such as parks, schools, fire stations, libraries, or human services facilities should be used to create neighborhood activity centers." (p. "Civic land uses shouM be used to the maximum extent possible to lead and guide development... Civic land uses can be organized to provide focus for regional, community and neighborhood activity centers...Civic land uses can be used to prevent strip commercial development along the regional and community highway system." (19. 52) "Primary Civic Land Use Principles: Providing Adequate Public Facilities, Building Landmarks and Enhancing Corridors" (19. 53) "Civic buildings should be placed in prominent locations." (p. 69) Developmem Code/Zoning Analysis Any proposed developmem: 1. Must meet the minimum requirements for transportation and road capacity; pedestrian linkages; utilities; drainage; and topography; signs; landscaping; open space; lighting and environmem quality impacts. 2. Will be required to be incompliance with the site design standards of the DeNon Developmem Code, including buffering and screening. Prior to the issuance of any building permit, an approved site plan for the proposed developmem is required. Staff Findings 1. The proposed Neighborhood Residemial 3 (NR-3) zoning district is consistem with The DeNon Plan civic land use goals and principles and allows for all the uses curremly proposed by DISD. ATTACHMENT 2 Maps NORTH Location/Zoning Map NR-2 Scale: None NORTH Land Use Map ~ighberho~e,d Ce~t e~ Scale: None ATTACHMENT 3 Public Notification NORTH Notification Map I t im~ of,~O0' HetifiCetion Limits of 200' NotifiCati°n Scale: None Public Notification Date: 200' Legal Notices* sent via Certified Mail: 500' Courtesy Notices* sent via 1st Class Mail: Number of responses to 200' Legal Notice · In Opposition: 0 · In Favor: 2 · Neutral: 0 May 11,2002 4 9 Percent of land within 200' in opposition: 0 % *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 Property Owner Responses Property Owner Name In favor Comments and Address /opposed* Ray Braswell In Favor No comments. 1307 N. Locust Denton TX 76201 LD Kuhlken (Vandalar In Favor No comments, Partners) 11446 Hwy 16N Fredericksburg TX 78624 *A copy of the original notice can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 4 Planning and Zoning Commission Minutes May 22, 2002 Hold a public hearing and consider making a recommendation to City Council concerning the rezoning of approximately 72.3 acres from an Agriculture (A) zoning district to a Neighborhood Residential Mixed Use (NRMU) zoning district. The site is generally located north of Loop 288, south of Long Road, east of Stuart Drive and west of Sherman Drive. The rezoning is required to bring property into compliance with the new Development Code zoning classifications. (Z02- 0023, DISD, Dedra Ragland) Motion by Joe Mulroy and seconded by Vicki Holt to recommend approval to City Council. *Discussion of item is included in the Court Reporter's transcript attached to this set of minutes (Page 141). Motion carries 7-0 Condon~ltTM Page ] 41 ] COMMISSIONER RISHEL; ID th¢Omj~ that 2 ~hould bring us Lo It~ No. ] 0 ~ o~ A~nda. I~m No. 3 I 0 ~ould ~tow on ~r docu~ sha~y, ~md I~ 10 ks 4 to hold a public ~ng ~d Ms. Rughnd will 5 MS. RAGt. AND: G~d eyeing 6 Co~s~. ~ra R~la~ ~malt Area Pl~nin8 g COMMISSIONER R1SHb',I,: if I could have yo~ 9 c~ks out to ~m ~k&, pl~. Ms, 11 pro~ny ~ was annexed in 2001 ~at intoned its 12 or~La~ A~iculLt~t[ zonL~ nn~ tl~ 1969 7oning CO~. 13 ~ ~enda [L~ No. 10 ~ p~nled ~ your Agra{da 14 b~k~ d~s }ta~e a ~p~rap~l ~or. ~ z~ing 15 ~s ~mlly ~2-0023 ~d not Z02-00~, Thu[ was 16 ori~n~ om uumbcr beFo~ fl~e appli~tion ~ 17 resubmitted. 18 COMNflSSION~R ~SIlEL: SO ~le new num~ what? 19 20 21 22 23 24 25 MS. RAnG [._~N D: COMMISSIONER RISHBL...%g stated Jn oLlr MS. IL&GLAND: In your backup, yes. COMMISSJON I:_q ?, R1SH H1 ,: Tl~%llk you. MS. tL~GLAICD: And tiffs i, what was noticed Page 142 5 6 7 9 10 11 1_2 15 16 17 18 21 22 23 2,4 25 Page t43 Item No. 107 Ms. ~taglan& would you care ~ give a ~MM~EONER R[SI[ED Thank yott f will ulosa the public ~ at ~in ~ ~a~i~ [~ No~ 10 on om~ ~d~. ~ission~ Mukoy, COMM~SlON~ MOLROY: I mo~ app~raI. , COMMTSSI~F~ HOLT'. COMMISSION~ R~L: IJ'$ ~ Co~isslona' Muh~y and a~on~ by C~iss~ct~ II~l~, Any fi~ conm~la, qu~lion% or cladHcati~s? Nc. 10 on ot~ Agenda. 7-0. I ~ [hu prOpm'ty owners and in t~c n6-wspaper_ 2 CO~IIBS1ON~4 ~[g~l.,. 'thank ~m 3 us. ~GLa~ 'the ~,n~ng far Z02-0023 was 4 ~glnally pro~s~ m~d a~vcai~ as N~bot'~od 7 m ~ in ~zo~ancc wi~t ~ ~l~n 8 Sch~l Dis~ict'a m~ p~ aad Jt Mil a~o bring thi; 9 pmpc~y into ~mpli~ wi~ ~ ~vclopn~n~ Code_ 10 To da~ slaIT has ~ved ~o n~CC~ 11 Favor of ~ prep~al whic~ w~ ~qs s~ mtt. ~ 12 Ne~rho~ gmi;~thl 3 mzfing disaict ~s 13 wi~ t~ ~n~n Plan cNic hud u~e ~als and WJmJp~ 14 ~d alluw~ [~ ~ m~s c~rm~Qy p~s~ by ~ 15 ln~t~t 8c~ol District. 16 ~M~g~ON~ ~SUk'l.: T~ yOU, 17 ~nd. I am no q~us ~ c~mmts fm 18 C~qnnissi~. ~k you v~-rough, This is a public 21 No. LO on our Ab~, So l ~J{ ~¢e ~at ~z~9~ l~ No, ] O on o~ -~&. This [sa public 24 ~ ~oush and we ~ve a 1~ kJs~ of ali,'Lng 2 4 5 7 8 9 [0 I1 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Page 144 PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 141 - Page 144 10 ATTACHMENT 5 Draft Zoning Ordinance ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, ZONING A TRACT OF LAND, COMPRISING APPROXIMATELY 72.3 ACRES IN THE CITY OF DENTON FROM AGRICULTURE (A) ZONING DISTRICT CLASSIFICATION TO NEIGHBORHOOD RESIDENTIAL 3 (NR-3); THE TRACT BEING GENERALLY LOCATED NORTH OF LOOP 288, SOUTH OF LONG ROAD, EAST OF STUART DRIVE AND WEST OF SHERMAN DRIVE, IN THE CITY OF DENTON; PROVIDING A PENALTY CLAUSE AND AN EFFECTIVE DATE (Z02-0023). WHEREAS, the City of DeNon has initiated a change in zoning for an approximate 72.3 acres of land from Agriculture (A) zoning district classification and use designation to Neighborhood Residemial 3 (NR-3); and WHEREAS, on May 22, 2002, the Planning and Zoning Commission recommended approval of the requested zoning; and WHEREAS, the City Council finds that the zoning is consistem with the Comprehensive Plan, NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The zoning district classification and use designation of the approximate 72.3 acre property described in the legal description attached hereto and incorporated herein as Exhibit "A" is hereby changed from Agriculture (A) zoning district classification and use designation to Neighborhood Residemial 3 (NR-3) under the comprehensive zoning ordinance of the City of Demon, Texas. SECTION 2. The City's official zoning map is amended to show the change in zoning district classification. SECTION 3. Any person violating any provision o£ 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 4. 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 DeNon Record-Chronicle, a daily newspaper published in the City of DeNon, Texas, within ten (10) days of the date of its passage. 11 PASSE D A N D AP PRO V ED this t he day of 2002, E [ J iL 1 iN E B R O C K~ M AY O R AFTES T: JENNIFER WA L'IERS, CITY SECRETARY APPROVED AS TO LEG AL FORM HERBER1~ L. PROUTY, CITY ATTOR:NEY 12 Exhibit "A" All that certain tract of land situated in the S. McCracken Survey Abstract Number 817, City of Denton, Denton County, Texas and being a part of the called 120.420 acre tract described in the deed from Edward F. Wolski to DeNon Independem School District recorded under Clerk's File Number 97-R0083710 of the Real Property Records of DeNon County, Texas; BEGINNING for the Northeast comer of the tract being described herein on the North line of the DISD tract in the middle of Long Road at it's intersection with the Corporate Limits of the City of DeNon as described in Tract 4 of Ordinance 74-36, 500 feet Northwesterly from the cemer of F.M. 428 (Sherman Drive); THENCE Southwesterly across the 120.420 acre tract with the said Corporate Limits, 500 feet Northwesterly from the cemer of F.M. 428 (Sherman Drive), the following 3 calls: South 31 Degrees 15 Minutes West a distance of 447.4 feet more or less to the beginning of a curve to the left having a radius of 6230.0 feet Along the arc of the curve an arc length of 286.3 feet more or less (chord bearing South 29 Degrees 56 Minutes West a distance of 286.25 feet more or less) to the end of the curve; o South 28 Degrees 37 Minutes West a distance of 656.3 feet more or less to the Northeast comer of the annexation tract described in Ordinance 82-7, being 600 feet North of the centerline of the Loop 288; THENCE Westerly across the 120.420 acre tract with the said Corporate Limits 600 feet North of and parallel with the cemerline of the Loop 288, the following 3 calls: North 65 Degrees 52 Minutes 28 Seconds East a distance of 47.16 feet more or less to the beginning of a curve to the left having a radius of 6329.58 feet Along the arc of the curve an arc length of 2546.87 feet more or less (chord bearing North 77 Degrees 24 Minutes 25 Seconds West a distance of 2529.72 feet more or less) to the end of the curve; o North 88 Degrees 56 Minutes 06 Seconds West a distance of 1077.37 feet more or less to the West line of the DISD tract in Stuart Road; THENCE North 00 Degrees 44 Minutes East along Stuart Road with the West line of the DISD tract a distance of 109.2 feet more or less to an angle point therein. THENCE North 42 Degrees 32 Minutes East along Long Road with the North line of the DISD a distance of 765.0 feet more or less to an angle point therein; 13 THENCE South 89 Degrees 08 Minutes East continuing along Long Road with the North line of the DISD tract a distance of 3760.3 feet more or less to the PLACE OF BEGINNING and enclosing 72.3 acres of land more or less. 14 Agenda 02-021 06/18/02 #43 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: June 18, 2002 Planning and Development DIRECTOR: David Hill, 349-8314 SUBJECT - Z02-0025: (Cobb Properties) Hold a public hearing and consider adoption of an ordinance rezoning approximately 3.0 acres of land from a Regional Center Residential 1 (RCR-1) zoning district to a Regional Center Commercial Downtown (RCC-D) zoning district. The site is generally located at 4011 east Interstate 35E northbound service road, adjacent to the Finfer Furniture Outlet. Future commercial development is proposed. The Planning and Zoning Commissions recommends approval (7-0). BACKGROUND Applicant: Jim McKissack Denton, Texas 76205 Owner: Marvin and Elizabeth Cobb Denton, Texas 76201 The applicant is proposing to rezone the subject property for higher intensive commercial uses compatible to the existing surrounding uses. The Regional Center Commercial Downtown (RCC-D) zoning designation allows lot coverage of 90% and a maximum building height of 100 feet. A variety of Institutional uses, including elderly centers, medical centers; private club and research facilities would also be permitted. The proposed intended use of automotive sales and large office complex on this property is consistent with the existing use along the I35E service roadway. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval, 7-0. ESTIMATED PROJECT SCHEDULE The subject property is not platted. A final plat is required prior to the issuance of any building permits. PRIOR ACTION/REVIEW Application Date - DRC Date- P&Z Commission Date - City Council Date - April 12, 2002 April 25, 2002 May 22, 2002 June 18, 2002 No neighborhood meeting was held. FISCAL INFORMATION Development of this property will increase the assessed value of the city, district. ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification (Property Owner Notification Map) 4. Applicant via agent submittal letter 5. Photographs 6. Planning and Zoning Commission Minutes, May 22, 2002 7. Draft Ordinance county and school Prepared by: Tiffanie Willis, Planner I Respectfully submitted: Douglas S. Powell, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary of Zoning Request The Keller Williams Jim Missack Group is requesting to rezone approximately 3.0 acres of land from Regional Center Residential 1 (RCR-1) zoning district to a Regional Center Commercial Downtown (RCC-D) zoning district to allow commercial development such as automotive sale and large office complexes (see Attachment 4). The subject site, located at the northeast corner of Interstate Highway 1-35E and south of Pockrus Road. Existing Condition of Property Property History. February 20, 2002 - Ordinance 2002-040 - The subject property was placed in the Regional Center Residential 1 (RCR-1) zoning district and land use classification. Prior to the adoption of the Development Code, this property was zoned Agricultural (A). Adjacent zoning and existing land use. North: Regional Center Residential 1 (RCR-1)/Sherwood Mobile Home Park South: Regional Center Commercial Neighborhood (RCC-N) along with PD12/ Auto Dealership under construction East: Regional Center Commercial Downtown (RCC-D)/Finfer Furniture Outlet West: Regional Center Commercial Neighborhood (RCC-N)/Oak Village Creek MH Sales The existing uses on the property include a leather works handy shop and an approximately 2,500 square foot unoccupied residence. Uses within the immediate area of the subject property maintain scattered medical plaza and office buildings, along with automotive and modular home sales centers. Comprehensive Plan Analysis The subject site is located in an existing "Regional Mixed Use Centers" land use area. For a regional activity center, the focus area contains the shopping, services, and institutional facilities supported by and servicing an entire region. A regional activity center could include a regional shopping mall, a number of major employers, restaurant and entertainment facilities are allowed. A regional center is considerably larger and more diverse in its land use than any other activity center. Development Review Analysis Transportation. At this time no development has been proposed, however at the time of platting the applicant may need to supply a traffic impact analysis (TIA) study to identify any improvements required to mitigate the impacts of the development. Access. The proposed development will be required to take access from Interstate 35E north bound frontage road. Road Capacity The DeNon Mobility Plan idemifies this Imerstate 35E north bound fromage property roadway as a service road. This TXDOT federally maimained and designed roadway was constructed to carry approximately 5,000 trips per day. The frontage road is constructed with two (2) lane undivided roadway and maimains a shoulder. Traffic coums for Imerstate 35E fromage road indicate that there is adequate capacity to handle the future vehicular trips that would be generated by the impact of future developmem. Development Code/Zoning Analysis Within the Regional Mixed Use Cemers, only RCC-D allows commercial auto sales and related businesses and large office and medical research cemers use by right. Although the other regional mixed use zoning districts, Regional Mixed Use Residemial 1 (RCR-1), Regional Cemer Residemial 2 (RCR-2) and Regional Cemer Commercial Neighborhood (RCC-N), allow retail and office use, there are size limitations associated with those uses. STAFF FINDINGS 1. The proposed Regional Cemer Commercial Downtown (RCC-D) zoning district is consistent with the Denton Comprehensive Plan, and existing surrounding land uses. 2. The proposed RCC-D zoning designation is consistent with The Denton Plan. ATTACHMENT 2 Maps Location/Zoning Map NORTH NR-4 ATTACHMENT 3 Public Notification Map NORTH 500' Public Notification Date: May 11, 2002 200' Legal Notices* sent via Certified Mail: 500' Courtesy Notices* sent via 1st Class Mail: Number of responses to 200' Legal Notice · In Opposition: 0 · In Favor: 0 · Neutral: 0 7 9 Percent of land within 200' in OBDosition: 0 % *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 4 Agent Correspondence R~; 401 ~ b3,~, T~mk~t~e~ler Wi,!]i~ms Rea'l'~y' ATTACHMENT 5 Site Photographs P&Z ATTACHMENT 4 Commission Minutes May 22, 2002 20. Hold a public hearing and consider making a recommendation to City Council concerning the rezoning of approximately 3.0 acres of land from a Regional Center Residential 1 (RCR-1) zoning district to a Regional Center Commercial Downtown (RCC-D) zoning district. The site is generally located to the east of Interstate 35E northbound service road, adjacent to the Finfer Furniture Outlet. Future commercial development is proposed. (Z02-0013, Robson Ranch North, Tiffanie Willis) Motion with recommendation by Susan Apple was second by Joy Mulroy to recommend approval to the City Council. The Planning and Zoning Commission recommends approval of the straight zone change to the Regional Center Commercial Downtown (RCC-D) zoning district. *Discussion of item is included in the Court Reporter's transcript attached to this set of minutes (Page 145-148 ). Motion carries -7-0 2 3 .~lati. cm, an'd, ler and~t~.':¢ Oa.k~ood Vilta~ bk~bll~ .&~ ~k~ IJm~ ~ff h~s not R~i~X:~ ann biu~ say c~;;ponda~ ~o date Thatwil~ coacl, u~c my pm~ntmioa. Page ] 46 MS. W~LLIS: Y~,, sir. o~ ~da. And I dm'~ ~]~¢~'e we have aa3,' card~ our ,.%gcwda'7 Ms, W[iI.i.s, wilt ~{~meat° Or i~ tl:m pct~tic.~r here md wr~d ~3' t[ge to ~ming ~sigt~,~t[m~ at~g th~ ~a. 1i" the C°mmissi~ has qmstk~s s~aff yic-ld~, ~)MMfSSION~:;~ R!SIif:L.: 80 ~:~ 0'~ PalS, ~ILL!~: [~VC llOt ~v I don't COk~MiSSI.ON'B~ ~]S3[E:L: O~ay, ()1'~¢ ~in, 5 6 !O L~ 1.5 22 24 P~c 148 PLANNING AND ZONING CO~:SSION MAY 22, 2002 Page t45 - Page ORDINANCE NO. 2002- AN ORDINANCE OF THE CITY OF DENTON, TEXAS, ZONING A TRACT OF LAND, COMPRISING APPROXIMATELY 3 ACRES OF LAND FROM A REGIONAL CENTER RESIDENTIAL 1 (RCR-1) ZONING DISTRICT TO A REGIONAL CENTER COMMERCIAL DOWNTOWN (RCC-D) ZONING DISTRICT, SAID TRACT LOCATED TO THE EAST SIDE OF INTERSTATE I35-E ADJACENT TO THE FINER FURNITURE OUTLET, IN THE CITY OF DENTON, TEXAS; PROVIDING A PENALTY CLAUSE AND AN EFFECTIVE DATE (Z02-0025). WHEREAS, the City of DeNon has initiated a change in zoning for an approximate 3 acres of land from Regional Cemer Residemial 1 (RCR-1) zoning district classification and use designation to Regional Cemer Commercial Dowmown (RCC-D); and WHEREAS, on May 22, 2002, the Planning and Zoning Commission recommended approval of the requested zoning; and WHEREAS, the City Council finds that the zoning is consistem with the Comprehensive Plan, NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The zoning district classification and use designation of the approximate 3 acre property described in the legal description attached hereto and incorporated herein as Exhibit "A" is hereby changed from Regional Cemer Residemial 1 (RCR-1) zoning district classification and use designation to Regional Cemer Commercial Dowmown (RCC-D) under the comprehensive zoning ordinance of the City of DeNon, Texas. SECTION 2. The City's official zoning map is amended to show the change in zoning district classification. SECTION 3. 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 4. 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 DeNon Record-Chronicle, a daily newspaper published in the City of DeNon, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the __ day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 of 3 Exhibit "A" Being a tract of land situated in the G. Walker Sy. Astract #1330, Denton County, Texas, and being a part of a called 9.462 acre tract conveyed by M.T. McDonald et ux to M.H. Cobb et ux on Oct. 13, 1961, as recorded in Vol. 474, Page 635, Deed Records of Denton County, Texas, and being more particularly described as follows: BEGINNING at a fence comer, in the right of way of the MKT Railroad, said fence comer also being the south east comer of a tract previously conveyed by WD from Marvin H. Cobb et ux to Lawrence W. Smith, and being the north east comer of a tract herein described; THENCE south 44' 39' 55" west with a fence 427.07 ft. to a fence comer east right of way of U.S. Highway 77. THENCE south 48 21' 10" east with said right of way, a distance of 345.67 ft. to a point in the right of way line of Interstate Highway 35-E and for the southwest comer of the tract herein described: THENCE north 44 32' 21" east, a distance of 314.01 ft. to a point in the right of way of the MK & T Railroad and said point being the southeast comer of the tract herein described; THENCE north 29 56' 02" west, a distance of 357.32 feet along the MK&T Right of way line to the place of beginning and containing 2.934 acres of land. Page 3 of 3 Agenda 02-021 06/18/02 #44 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: June 18, 2002 Planning Departmem David Hill, 349-8314 SUBJECT - SI02-0004: (Development Code Sign Regulations) Hold a public hearing and consider adoption of an ordinance amending Chapter 35, Code of Ordinances of the City of DeNon, Texas; "Developmem Code" by adding Subchapter 15, "Signs and Advertising Devises"; providing for a cumulative provision; providing for a severability clause; providing for a penalty in the amount of $2,000 for violations thereof; and declaring an effective date. The Planning and Zoning Commission recommends approval (7-0). (SI02-0004) BACKGROUND Applicam: City of DeNon The Sign Code, Chapter 33 of the Code of Ordinances, was not included in the adoption of the Development Code. The overall intent of this item is to update the terminology and to address inconsistencies of the regulations that will not change the policies. In addition to updating the text to conform to the Development Code, staff has listed four changes to the regulations to clarify how the existing regulations are curremly being implememed. OPTIONS 1. Approve as submitted. 2. Approve with changes. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval (7-0). ESTIMATED PROJECT SCHEDULE N/A PRIOR ACTION/REVIEW The following is a chronology of (SI02-0004, Developmem Code Sign Regulations): May 22, 2002 Planning and Zoning Public Hearing FISCAL INFORMATION N/A ATTACHMENTS 1. Staff Analysis 2. Draft Ordinance 3. Planning and Zoning Commission Minutes (May 22, 2002) Prepared by: Donna Bateman Assistant Building Official Respectfully submitted: Douglas S. Powell, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis As was noted previously, this item consists of both minor amendments to the current regulations. The following four items represent the proposed changes which clarify the current interpretation of the existing regulations: Item 1 35.15.2 Definitions. Supportin,q structure means any pole, post, cable, foundation or other supporting structural materials or fixtures arranged, designed or used to hold, secure or support a sign, abandoned sign, or part thereof '-'-'q '*'~-~"~- ~° '-'-'* imprinted '-'- m~.m..,q ..,~.. ..... ~.-, ......... ~..-.o m....o nllmh~ro nr :^~nrrlo in ~v,',~oo ~: ~n~ l'l\ inr, h in h~inh'l' nnr lo inftarn.l~ll:t mr rltar, r~r.l~ti:ttal:t illuminate. Item 2 35.15.11.1 Notice and Order. Any sign, abandoned sign, supporting structure or abandoned supporting structure which is erected, placed, relocated, constructed, reconstructed, altered, displayed, maintained, installed, modified or used in violation of this chapter may be removed by the Building Official as provided in this article. The Building Official shall deliver or send a written notice and order to the owner of an unlawful sign or the owner of the premises where the unlawful sign is located. A notice and order sent or delivered to the person listed by the city tax office or county appraisal district as the owner of the premises where the unlawful sign is located shall be presumed to be sufficient. The notice and order shall: Item 3 35.15.12.2 D. Abandoned signs and supporting structures. If a supporting structure used or designed to be used with a ground sign is abandoned on or before March 17, 1993, and the abandoned supporting structure does not comply with the size, height, and setback, or other requirements applicable to ground signs, the owner of the premises shall cease displaying the supporting structure, or remove, modify or relocate the structure, or put a blank face on a sign with a bona fide message on the supporting structure by June 17, 1993 as necessary to comply with this Subchapter. If a supporting structure that does not meet the requirements applicable to ground signs is abandoned after March 17, 1993, the owner shall cease displaying the supporting structure or abandoned supporting structure; 1) remove 2) modify 3) relocate the structure and put a blank face or bona fide sign on the supporting structure within ninety (90) days of the date the supporting structure becomes abandoned as necessary to comply with those requirements. In determining whether the supporting structure complies with the size requirements applicable to ground signs, the effective area of the can frame, or similar part of the supporting structure that holds or to which the sign is attached shall be measured in the manner applicable to signs, except that all air spaces shall be counted. As used in this section, abandoned supporting structure means the poles, beams, cables, or other materials that are used or once were used to support an abandoned sign or sign. Item 4 35.15.12.3 Sign face standards. 5. Unlawful to cover sign. No person shall cover signs with bags or tarps of any material. ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING CHAPTER 35, CODE OF ORDINANCES OF THE CITY OF DENTON, TEXAS; "DENTON DEVELOPMENT CODE" BY ADDING SUBCHAPTER 15, "SIGNS AND ADVERTiSiNG DEVICES"; PROViDiNG FOR A CUMULATIVE PROVISION; PROViDiNG FOR A SEVERABiLiTY CLAUSE; PROViDiNG FOR A PENALTY iN THE AMOUNT OF $2,000 FOR VIOLATIONS THEREOF; AND DECLARING AN EFFECTIVE DATE. WHEREAS, The "Denton Development Code: was passed in order to provide a comprehensive set of rules and regulations for developments in the City of DeNon, Texas; and WHEREAS, Subchapter 15 was reserved for the implementation of regulations for signs and advertising devices within the authority of the City of Demon, Texas; and WHEREAS, a set of regulations have been developed and presented to the Planning and Zoning Commission and the commission, after public hearing, has approved the implememation of these regulations; and WHEREAS, the City Council finds it is in the public interest and wishes to adopt Subchapter 15 of the "Denton Development Code"; and, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION1. That Chapter 35 of the Code of Ordinances, City of DeNon, Texas, "Denton Developmem Code" is hereby amended by adding the provisions of Subchapter 15, "Signs and Advertising Devices" attached as "Exhibit A" which are incorporated as permanent revisions to the City's Code of Ordinances of the City of DeNon, Texas. These regulation shall supercede conflicting provisions of the Code of Ordinances of the City of DeNon, Texas, including in particular and without limitation Chapter 33, Signs and Advertising Devices. SECTION 2. That this ordinance shall be cumulative of all other ordinances of the City of DeNon and shall not repeal any of the provisions of said ordinances except in those instances where provisions of those ordinances are in direct conflict with the provisions of this ordinance. SECTION 3. That if any section, subsection, paragraph, semence, clause, phrase or word in this ordinance, or application thereof to any person or circumstances is held invalid by any court of competem jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Demon, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 4. That 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. PAGE 1 OF 2 SECTION 5. That this ordinance shall become effective fourteen (14) days from the date of this passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Demon Record-Chronicle, the official newspaper of the City of Demon, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the __ day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: PAGE 2 OF 2 Exhibit "A" City of Denton Sign Code JUNE, 2002 Table of Contents ...................................................................................................................................................................................................................................................... Development Code TABLE OF CONTENTS SUBCHAPTER 15 -SIGNS AND ADVERTISING DEVICES ................................................................... 1 35.15.1 PURPOSE AND INTENT ........................................................................................................... 1 35.15.2 DEFINITIONS ......................................................................................................................... 1 35.15.3 EXEMPTIONS ........................................................................................................................ 3 35.15.4 CERTAIN PROHIBITED SIGNS .................................................................................................. 4 35.15.5 ADMINISTRATION AND ENFORCEMENT ..................................................................................... 5 35.15.6 APPEAL, VARIANCES, AND SPECIAL EXCEPTIONS ..................................................................... 5 35.15.7 HISTORICAL LANDMARK SIGNS ............................................................................................... 6 35.15.8 LICENSES ............................................................................................................................. 6 35.15.8.1 Required .................................................................................................................................................................. 6 35.15.8.2 Prerequisites to issuance; fee; examination ........................................................................................................... 6 35.15.8.3 Revocation ............................................................................................................................................................... 6 35.15.8.4 Appeal of revocation ................................................................................................................................................ 6 35.15.8.5 State license ............................................................................................................................................................ 6 35.15.9 PERMITS .............................................................................................................................. 7 35.15.9.1 Required .................................................................................................................................................................. 7 35.15.9.2 Application Procedure ............................................................................................................................................. 7 35.15.9.3 Fees ......................................................................................................................................................................... 7 35.15.9.4 Duration ................................................................................................................................................................... 7 35.15.9.5 Revocation; Appeals ............................................................................................................................................... 7 35.15.9.6 Transfer of state outdoor advertising sign permits ...................................................................................................... 8 35.15.10 NONCONFORMING SIGNS ....................................................................................................... 8 35.15.10.1 Definition .................................................................................................................................................................. 8 35.15.10.2 Applicability .............................................................................................................................................................. 8 35.15.10.3 Registration of nonconforming portable and off-premises (billboard) signs .......................................................... 8 35.15.10.4 Presumption ............................................................................................................................................................. 9 35.15.10.5 Destruction; Repair .................................................................................................................................................. 9 35.15.10.6 Relocation ................................................................................................................................................................ 9 35.15.10.7 Signs located on nonconforming premises ............................................................................................................ 9 35.15.10.8 Nonconforming sign permits ................................................................................................................................... 9 35.15.11 P~EMOVAL OF UNLAWFUL SIGNS ............................................................................................ 10 35.15.11.1 Notice and Order ................................................................................................................................................... 10 35.15.11.2 Removal; Appeals ................................................................................................................................................. 10 35.15.11.3 Impoundment; Redemption; Disposal .................................................................................................................. 10 35.15.11.4 Recovery of Costs ................................................................................................................................................. 10 35.15.11.5 Appeal .................................................................................................................................................................... 10 35.15.11.6 Summary removal of hazardous signs ................................................................................................................. 11 35.15.11.7 Certificate of Occupancy ....................................................................................................................................... 11 35.15.12 TECHNICAL REQUIREMENTS ................................................................................................. 11 35.15.12.1 Manner of Measurement ....................................................................................................................................... 11 35.15.12.2 Abandoned signs and supporting structures ........................................................................................................ 13 35.15.12.3 Sign face standards ............................................................................................................................................... 14 35.15.12.4 Sign Maintenance .................................................................................................................................................. 15 35.15.12.5 Wind loads ............................................................................................................................................................. 15 35.15.12.6 Use of state right-of-way ....................................................................................................................................... 15 35.15.12.7 Inflatable devices ................................................................................................................................................... 15 35.15.12.8 Clearance from electrical lines .............................................................................................................................. 15 35.15.13 PORTABLE SIGNS ................................................................................................................ 15 35.15.13.1 Prohibited ............................................................................................................................................................... 15 35.15.13.2 Lawful nonconformity ............................................................................................................................................ 15 35.15.13.3 Lawful nonconformity from November 5, 1997 .................................................................................................... 15 iii Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code 35.15.13.4 Maintenance of nonconforming signs ................................................................................................................... 16 35.15.13.5 Anchoring ............................................................................................................................................................... 16 35.15.14 REGULATION OF SIGNS BYZONING DISTRICTS ........................................................................ 16 35.15.14.1 Residential Districts ............................................................................................................................................... 16 35.15.14.2 Nonresidential districts .......................................................................................................................................... 17 35.15.14.3 Planned development districts .............................................................................................................................. 18 35.15.14.4 Central business districts ...................................................................................................................................... 19 35.15.15 ATTACHED SIGNS ................................................................................................................ 20 35.15.15.1 Scope ..................................................................................................................................................................... 20 35.15.15.2 Roof signs; Projection ........................................................................................................................................... 20 35.15.15.3 Projecting signs ..................................................................................................................................................... 20 35.15.15.4 Signs on common buildings .................................................................................................................................. 20 35.15.16 TEMPORARY SIGNS ............................................................................................................. 21 35.15.16.1 Temporary Signs ................................................................................................................................................... 21 35.15.16.2 Wind device signs .................................................................................................................................................. 21 35.15.17 SPECIAL SIGN DISTRICTS .................................................................................................... 21 35.15.17.1 Purpose .................................................................................................................................................................. 21 35.15.17.2 Application and plans ............................................................................................................................................ 21 35.15.17.3 Sign plan ................................................................................................................................................................ 22 35.15.17.4 Creation, Review of Plan, Criteria ......................................................................................................................... 22 35.15.17.5 Conditions imposed ............................................................................................................................................... 22 35.15.17.6 Procedures ............................................................................................................................................................ 22 35.15.17.7 Designation on zoning map ................................................................................................................................... 23 END ...................................................................................................................................................... 23 Table of Contents ...................................................................................................................................................................................................................................................... Development Code Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code Subchapter 15 - Signs and Advertising Devices Sections: 35.15.1 35.15.2 35.15.3 35.15.4 35.15.5 35.15.6 35.15.7 Purpose and Intent. Definitions. Licenses and Pemfits. Nonconfom~ing Signs. Removal of Unlawful Signs. Technical Requirements. Special Sign Districts. 35.15.1 Purpose and Intent. A. It is the purpose of this Subchapter to regulate the construction, reconstruction, erection, installation, placement, relocation, maintenance, display, use, modification, alteration and removal of private signs within the city. B. It is the intent of this Subchapter to regulate signs generally by classifying each sign according to its design and construction and by regulating, based on such classification, the type, number, size, height and setback of signs according to their location in the various zoning districts. C. It is also the intent and detemfination of the city council that the regulations in this Subchapter be and are the minimum necessary and least burdensome to accomplish the purposes stated in this section. 35.15.2 Definitions. The following words, temps and phrases, when used in this Subchapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Abandoned sign. A sign; 1. which, for at least six (6) continuous months, does not identify or advertise a bona fide business, lessor, service, owner, product or activity; 2. For which no legal owner can be found; or 3. Which pertains to a time, event or purpose which no longer applies. Advertising. To convey infom~ation to, seek the attraction of or to direct the attention of the public to any location, event, person, activity, goods, services or merchandise. Attached sign. A sign, other than a wind device sign, attached to or supported by any part of a building, including but not limited to a wall, roof, window, canopy, awning, or marquee. Wall, roof, and projecting signs shall be considered attached signs. Curbline. An imaginary line drawn along and parallel to the outem~ost part or back of the curb and gutter on either side of a public street; or, if there is no curb and gutter, along and parallel to the outem~ost portion of the paved street; or, if there is no paved street, along and parallel to the outem~ost edge of the traveled portion of the street. Dilapidated or deteriorated sign. A sign; 1. Where any portion of the finished material, surface or message portion of the sign is visibly faded, flaked, broken off, missing, cracked, splintered, defective or is otherwise visibly deteriorated or in a state of disrepair so as not to substantially appear as it was intended or designed to appear when originally constructed; Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code 2. Whose elements or the structural support or frame members are visibly bent, broken, dented or tom, twisted, leaning or at angles other than those at which it was originally erected, such as may result from being blown or by the failure of a structural support. Front yard. An open, unoccupied space on a lot facing a street and extending across the front of the lot between the side lot lines and from the main building line as specified for the district in which it is located (the "building setback line"). Ground sign. A sign, other than a wind device sign, whose principal support is provided by burying, anchoring or otherwise connecting the sign, or supporting structure thereof, to the ground and which is not a portable sign or attached sign. Monument Sign. A ground sign, other than a wind device sign, which is solid from the ground up, and is made of stone, concrete, metal, routed wood planks or beams, brick or similar materials. The pole(s) or support of this sign shall be concealed. Off-premises sign. A sign displaying advertising copy that pertains to a business, person, organization, activity, event, place, service, or product not principally located or primarily manufactured or sold on the premises on which the sign is located. On-premises sign. A freestanding sign identifying or advertising a business, person, or activity, and installed and maintained on the same premises as the business, person, or activity. A sign which promotes or displays a political, religious or ideological thought, belief, opinion or other noncommercial message shall be considered an on-premises sign. Portable sign. A sign whose principal supporting structure is intended, by design, use or construction, to be used by resting upon the ground for support and which may be easily moved or relocated for reuse. Portable signs shall include but not be limited to signs mounted upon or designed to be mounted upon a trailer, bench, wheeled carrier or other nonmotorized mobile structure, with or without wheels, and A-frame and other sin~ilar signs, resting or leaning on the ground or other structures, but not permanently attached thereto. Premises means: For any developed property, the area of real property which encompasses all the buildings, structures, appurtenances and land held under common ownership and devoted to a common use, such as a shopping center; or For undeveloped property, the area of real property designated as a lot on a plat approved in accordance with law and filed with the county clerk's office, or an unplatted tract of land as conveyed by deed or operation of law and recorded in the deed records of the county. Projecting sign. Any sign, other than a wind device sign, which is wholly affLxed to or supported by any building wall and which extends beyond the building wall more than twelve (12) inches. Roof sign. Any sign, other than a wind device sign, wholly erected on, affixed to, or supported by a roof of a building. Sandwich board or "A" frame sign. A portable sign, consisting of two panels of equal size, made of painted, decay-resistant wood, which are hinged at the top and placed on the ground or pavement so as to be self-supporting. Sign. An outdoor structure, sign, display, light device, figure, painting, drawing, message, plaque, poster, billboard, or other thing that is designed, intended, or used to advertise or inform. "One sign" or a "a sign" means any number of signs located on or supported by a single or common supporting structure. Supporting structure. Any pole, post, cable, foundation or other supporting structural materials or fLxtures arranged, designed or used to hold, secure or support a sign, abandoned sign, or part thereof. Temporary sign. A ground sign that is used to communicate or advertise a single event which has not yet occurred and which is temporary in nature. Examples of temporary signs include, but are not limited to, signs advertising grand openings, future construction projects and real estate listings. Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code Visibility point. The viewing locations, at a height of six (6) feet, determined by extending the side yard setback lines of fl~e property so as to intersect the curb line of fl~e public street fronting fl~e property, fl~en measuring from fl~e intersecting points along fl~e curb line away from the property in each direction for a distance of one hundred (100) feet. If fl~e street fronting fl~e property is one-way, the visibility point in the direction from which traffic approaches the property shall be used to determine the visibility requirement. Wall sign. Any sign, other than a wind device, wholly affixed to, supported by or painted upon the wall of any building and which is not a projecting sign. Wind device sign. A flag, banner, pennant, streamer, inflatable balloon or similar device made of cloth, canvas, plastic, or ofl~er similar flexible material, with or without a frame or oflmr supporting structure, and used as a sign. 35. ~ 5.3 Exemptions. The following types of signs shall be exempt from the provisions of this Subchapter: A. Governmental signs. Any sign: 1. Erected or maintained pursuant to and in discharge of any governmental function: 2. Required by law, ordinance, or governmental regulation; or 3. Located on property owned, leased, or under the control of the federal or state government. B. Railway signs. Any sign within or on railway property and placed or maintained in reference to the operation of such railway; C. Utility signs. Signs marking utility or underground communication or transmission lines; D. Vehicle signs. Signs displayed or used upon vehicles, trailers or aircraft, unless such vehicle, trailer or aircraft on which such sign is displayed is permanently stationed or regularly used at a fixed location to serve the same or sin~ilar purpose of a permanent or portable sign not affixed to a vehicle, trailer or aircraft; E. Signs not visible from the street. Any sign where no part of such sign is visible from any public street; F. Holiday signs. Temporary signs containing only holiday messages and no commercial advertising; G. Signs on persons or animals. Hand-held signs or signs, symbols or displays on persons or animals; H. Unused signs. Signs being manufactured, transported or stored and not being used, in any manner or form, for purposes of advertising; I. Plaques. Commemorative plaques of recognized historical societies and organizations; J. Private traffic control. On-premise signs which direct the movement of traffic on private property or warn of obstacles, overhead clearances, or control parking, including, but not lin~ited to, entrance and exit signs. The sign must be less than ten (10) feet in effective area, less than six (6) feet in height, and be placed where they will not interfere with the safe movement of vehicles or pedestrians; K. Mailboxes, newspaper racks. Signs located on mailboxes, newspaper vending machines and curbside residential newspaper holders which identify the owner and address of fl~e premises or fl~e name of fl~e newspaper sold or subscribed to, provided fl~at such devices are not placed so as to interfere wifl~ the safe movement of pedestrians of vehicular traffic; L. Signs on outdoor machines, devices and equipment. Signs located on outdoor machines, devices, or equipment which display fl~e trademark, trade name, manufacturer, cost, or operating or service instructions or sinfilar information but do not advertise fl~e business where located. This exemption includes but is not linfited to signs on coin-operated vending machines, fuel dispensing pumps, telephone Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code facilities, automatic teller machines, automotive vacuum cleaners, amusement rides, and similar machines, devices, or equipment; M. Athletic fields. Signs located on the field side of scoreboards and fences of athletic fields. N. Wall signs fifteen (15) feet or less in height. O. Legal notices. P. Flags as specified in Section 35.15.16.2. Q. Signs painted on glass surfaces of windows or doors. R. Temporary signs. 35.15.4 Certain Prohibited Signs. It shall be unlawful for any person to erect, install, construct, display, maintain, reconstruct, place, locate relocate, or make use of any of the following signs for advertising purposes: A. Signs on private property without consent of owner. Signs located on private property without the consent of the owner of the premises. B. Parking and maneuvering areas. Signs which are located in or interfere with the use of a required off- street parking space or maneuvering area. C. Unsafe signs. Signs which are or become deteriorated, dilapidated or in danger of falling or otherwise unsafe. D. Signs on public property. Any sign located on or attached to a public street light, utility pole, hydrant, bridge, traffic control device, street sign or other public structure or building, or any sign, other than a temporary sign, located in, on, over, or within a public street, sidewalk, alley, easement or right-of-way. This prohibition shall not apply to projecting signs or sandwich board or "A" frame signs in central business districts as pem~itted by this Subchapter, markings made on public sidewalks as pemfitted by the Code of Ordinances or wind device signs placed over a public street by the city to advertise annual community events. E. Code compliance. Signs which do not comply with any applicable provision of a building code, electrical code or other applicable code or ordinance of the city. F. Trees and shrubs. Signs located on trees and shrubs. G. Motion picture signs. Signs which employ a stereopticon or motion picture machine. H. Signs obscuring or interfering with view. 1. Signs located or illuminated in such a manner as to obscure or otherwise interfere with the effectiveness of an official traffic sign, signal or device or so as to obstruct or interfere with the view of a driver of approaching, emerg/ng or intersecting traffic or so as to prevent any traveler on any street from obtaining a clear view of approaching vehicles for a distance of two hundred fifty (250) feet along the street; 2. A sign off, er fl~an a traffic control sign or signal, in a triangle sight area at all intersections including fl~at portion of public right-of-way and any comer lot wiflfin a triangle fom~ed by a diagonal line extending fl~rough points on fl~e two (2) property lines twenty-five (25) feet from fl~e street comer intersection of fl~e property lines or fl~at point of the intersection of fl~e property lines extended and intersecting fl~e curblines. I. Certain illuminated signs. Signs, illuminated fom~ within or without, and which: Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code 1. Are illuminated in such a manner, to such intensity, or without proper shielding, so as to constitute a hazard to the operation of motor vehicles upon a public street or substantially interfere with the reasonable enjoyment of residential property; or 2. Have any type of intemfittent illumination, including flashing, fading, revolving or blinking lights, or any type of moving, traveling or changing message by means of illumination, excluding temporary Chrism~as lights and lights used for time and temperature signs; Portable signs. Any portable sign which is not a properly registered nonconfomfing portable sign as provided for in this Subchapter. Off-Premises Signs. Any off-premises sign which is not a properly registered nonconfomfing off- premises sign as proved for in tiffs Subchapter. 35.~5.5 Administration and Enforcement. The Building Official shall enforce and administer the provisions of this Subchapter. The Building Official or city manager may delegate the duties and powers granted to an imposed upon the Building Official by this Subchapter. 35.15.6 Appeal, Variances, and Special Exceptions. A. Compliance with state law. The Board of Adjustment is authorized to hear all appeals, variances, and special exceptions in accordance wifl~ powers, roles and procedures applicable as outlined in Subchapter 3. B. Variances to the sign regulations: 1. Any person requesting a variance from fl~e provisions of fl~e sign regulations shall submit an application on a fom~ provided by fl~e city, containing the infom~ation and plans requested in fl~e application, along wifl~ fl~e established filing fee. 2. The board shall act upon fl~e variance request within a reasonable tinge. Notice of the heating shall be given in fl~e same manner as appeals to fl~e board. 3. The board may grant a variance from a requirement of this Subchapter if it finds all fl~e following exist: a. Due to some unique condition or feature of fl~e property which is not generally common to off, er properties, literal compliance wifl~ fl~e sign regulation would cause unnecessary hardship; b. The granting of fl~e variance will not violate fl~e spirit or fl~e intent of the ordinance; and c. The condition or feature, which creates fl~e need for fl~e variance, did not result from fl~e property owners' acts. 4. The board shall not grant a variance to any applicant solely for personal convenience, financial hardship, or other reasons unrelated to the property. If fl~e board grants a variance, fl~e variance shall be granted only to fl~e extent fl~at is reasonably necessary to remedy fl~e hardship. The board may impose conditions relating to the use of fl~e sign for which a variance is granted. 5. All decisions of fl~e board granting or refusing a variance shall be reduced to writing and signed by fl~e chairperson. If a variance is denied, the decision shall state the conditions for the variance which were not met. If the board grants a variance, fl~e decision shall state fl~at all conditions for a variance were met, specify fl~e degree to which fl~e regulations are being varied, and be signed by fl~e members voting in favor of the variance. C. Special Exceptions. The board may grant a special exception from fl~e provisions of tiffs Subchapter for fl~e setback or height of a sign, off, er fl~an a portable sign, under fl~e following circun~stances: Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code 1. Visibility obstructions. When fifty (50) percent or more of the effective area of sign to be located in accordance with fl~e setback or height requirements of tiffs article would not be visible from at least one "visibility point" because of an existing building, structure, or the natural ground. 2. Medical emergency signs. When a sign located on tim property of an emergency medical treatment facility would not, because of the setback or height requirements of tiffs article, be readily visible from adjacent public streets. For purposes of tiffs provision, "Emergency Medical Tream~ent Facility" shall mean any hospital, clinic or ofl~er facility where medical aid is offered to a person or animal which suffers an injury or illness which requires immediate medical attention. In granting a special exception, fl~e board shall specify by written order fl~e setback or the height fl~at will be allowed, but in doing so shall not allow deviation from the provisions of this Subchapter beyond what is minin~ally necessary to remedy the situation allowing for fl~e special exception. 35.15.7 Historical Landmark Signs. The provisions of this Subchapter shall not apply insofar as they conflict with any provision applicable to a sign designated as a historical landmark by the city. 35.15.8 Licenses. 35.15.8.1 Required. It shall be unlawful for any person to erect, construct, place, locate, reconstruct, repair, replace or service any ground, roof or projecting sign for compensation without first having obtained a license for such work from fl~e Building Official as provided in tiffs division. The provisions of tiffs section requiting a license for such work shall not apply to an employee of a person holding a license under this division. 35.15.8.2 A. Prerequisites to issuance; fee; examination. Any person who makes proper application, pays the fee, and passes an examination, shall be issued a license, valid for four (4) years. The written examination shall test fl~e applicant's general knowledge office sign regulations. The applicant may renew an existing license prior to its expiration for a maximum of four (4) years by paying fl~e appropriate fee(s). The fee for the license shall be detem~ined by fl~e city council and on file in fl~e office of the city secretary. 35.15.8.3 Revocation. The Building Official may revoke, upon prior written notice to the licensee, any license granted under this division where it is found that the application made was knowingly false or that the licensee, after having been detem~ined by the Building Official to have violated any provision of this division, failed to correct the violation within fourteen (14) days after the date written notice of the violation was sent to the address of the licensee, as shown on the license. 35.15.8.4 Appeal of revocation. Any person may appeal a denial, proposed revocation, or revocation of a license to the board of adjusm~ents as provided herein. 35.15.8.5 State license. The license required by the city is in addition to any license required by the State Deparm~ent of Highways and Public Transportation by State law or regulation. Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code 35.15.9 Permits. 35.15.9.1 A. Required. It shall be unlawful for any person to place, locate, relocate, erect, construct, reconstruct, replace, renovate, repair, or alter any part of a sign, including the face or supporting structure or other integral part, or to thereafter make use of a sign for which a pemfit is required herein, without having first secured a sign pemfit from the city, except as otherwise provided by this Subchapter. The administering official or employee shall not issue a pemfit for a sign that does not comply with the requirements of this Subchapter. It shall be unlawful for any person to make use of a sign required to be licensed by the State Department of Highways and Public Transportation as required by article 4477-9a, Tex. Rev. Civ. Stat., except in accordance with a valid pemfit issued by the city. A sign pemfit shall not be required to periodically change only fl~e letters, numbers, or message portion of a sign if fl~e sign is specifically designed for fl~at purpose, such as, but not limited to, marquee signs for movie fl~eaters, portable signs with changeable letters, billboards and poster boards designed for changing messages, and gasoline price signs with changeable nun~bers. 35.15.9.2 Application Procedure. The application for a sign pem~it shall be submitted on such fom~s as the Building Official may prescribe and shall be accompanied by such infom~ation, drawings and descriptive data as required by the Building Official to ensure proper regulation of the sign and to ensure compliance with this Subchapter. 35.15.9.3 Fees. If the plans and specifications for a sign set forth in any application for a pem~it required under this division confom~ to all of the requirements of this Subchapter and any ofl~er ordinance applicable fl~ereto, fl~e Building Official shall, upon payment of fl~e applicable pemfit fee, issue the appropriate pemfit. Pemfit fees shall be established by the City Council. 35.15.9.4 A. Duration. Ground or attached signs. Except as otherwise provided in this Subchapter, a pem~it issued for a ground or attached sign shall tem~inate one hundred eighty (180) days after issuance. Signs licensed by the State. A sign pemfit issued by the City for a sign required to be licensed by the State Deparm~ent of Highways and Public Transportation under article 4477-9a, Tex. Rev. Civ. Stat., as amended, shall be valid for fl~e location designated on fl~e application for one (1) year from issuance office pemfit so long as the sign is erected and legally maintained. If fl~e state acquires the sign or fl~e sign in removed for any reason, fl~e pemfit shall temfinate. Wind device signs. A pemfit for wind device signs shall be valid for thirty (30) consecutive days. A pemfit shall not be issued for a premise unless a period of flfirty (30) days has elapsed since fl~e expiration of a previous pemfit. The pemfit shall apply to one designated premise and authorizes fl~e display of one or more wind device signs on that premise for the allowed tinge. No more than three (3) pemfits for any one premise shall be issued in any one calendar year. 35.15.9.5 Revocation; Appeals A sign pem~it may be revoked for a violation of any provision of this Subchapter. The pemfit holder may appeal fl~e revocation to fl~e board of adjusm~ents. If the State Department of Highways and Public Transportation revokes fl~e license of an owner of a sign for which fl~e city has issued a pemfit, the sign pemfit for fl~e sign shall tem~inate when the license revocation becomes final. Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code 35.15.9.6 Transfer of state outdoor advertising sign permits. Sign permits initially issued by the State Department of Highways and Public Transportation and now issued by the city for signs licensed by the state under article 4477-9a, may be transferred to another party if the proper city application and fee is filed and approved by the city. 35.15.10 Nonconforming Signs. 35.15.10.1 Definition. A sign, including its supporting structure, shall be considered nonconforming when it does not conform to all or part of the provisions of this Subchapter applicable thereto, is not a temporary sign and: A. Was in existence and lawfully located and used on March 17, 1993; B. Was in existence and lawfully located and used in accordance with the provisions of the prior ordinance applicable thereto or which was considered legally nonconforming thereunder and has since been in continuous or regular use; or C. Was in existence, located and used on the premises at the time it was annexed to the city and has since been in regular and continuous use. D. Was in existence and lawfully located and used as an off-premises ground sign pursuant to Section 35.15.14.2 on November 5, 1997. 35.15.10.2 Applicability. The provisions of this Subchapter defining and regulating nonconforming signs shall control over any other conflicting provision of this Chapter. 35.15.10.3 Registration of nonconforming portable and off-premises (billboard) signs. On or after June 1, 1989, it shall be unlawful for any person to maintain any portable sign within the corporate linfits, and on or after March 1, 1998, it shall be unlawful for any person to maintain any off-premises (billboard) sign on any premises wiflfin fl~e corporate limits and both portable and off-premises (billboard) signs wiflfin fl~e extraterritorial jurisdiction of fl~e City of Denton without having a valid registration tag affixed fl~ereto as required in tiffs section as follows: A. Application. To register a nonconforming portable or off-premises (billboard) sign, application shall be made to fl~e Building Official on forms provided for fl~at purpose. The application shall be accompanied by fl~e payment of fl~e applicable fee and shall contain fl~e name and address of the owner of fl~e sign, fl~e exact location of fl~e sign, fl~e date of placement and any off, er information reasonably required by fl~e Building Official. B. Issuance of registration tag. If fl~e Building Official determines that fl~e portable or off-premises (billboard) sign is a lawfully nonconforming portable or off-premises (billboard) sign, he shall issue a registration tag to fl~e applicant. The owner of fl~e sign shall cause fl~e tag to be affmed in a conspicuous place on fl~e corresponding portable or off-premises (billboard) sign registered. C. Removed or destroyed signs. Any owner who removes or causes fl~e removal of any validly registered nonconforming portable or off-premises (billboard) sign from any premises shall, wiflfin five (5) business days of its removal, report fl~e removal to fl~e Building Official. D. Invalidation of registration. The Building Official shall invalidate any registration tag for a nonconforming portable of off-premises (billboard) sign when: 1. It is removed from fl~e premises for any reason; 2. It has been damaged or destroyed so as to lose its nonconforming or off-premises (billboard) sign status as provided in tiffs Subchapter; Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code 3. It has become an abandoned sign. 35.15.10.4 Presumption. Any sign which does not conform to fl~e regulations of tiffs Subchapter and is not properly registered as a legally nonconforming sign as provided for in this Subchapter shall be presumed not to be a legally nonconforming sign; provided, however, fl~at fl~e owner of any sign fl~at is determined not to comply with the provisions of tiffs Subchapter may, at any time, present evidence to fl~e Building Official fl~at fl~e sign is a legally nonconforming sign, and fl~e Building Official shall, if satisfied fl~at fl~e sign is a legally nonconforming sign based on the evidence presented, allow fl~e sign to be registered as a legally nonconforming sign. 35.15.10.5 A. Destruction; Repair. Any nonconforming portable, attached, or ground sign, including its supporting structure which is blown down, damaged, dilapidated or deteriorated, or otherwise destroyed or dismantled for any purpose other than maintenance operations or for changing the letters, symbols, or other matter on the sign, shall not be replaced, repaired, or renovated, in whole or in part, if the cost of such replacement, repair or renovation is in excess of sixty percent (60%) of the cost of erecting a new sign of the same type at the same location, including its supporting structure, unless such alteration or repair makes the sign conforming. No person shall repair, renovate, or alter a nonconforming sign without first receiving a sign permit. B. The Building Official may, whenever he deems necessary to reasonably determine the applicability of subsection (a) of this section, require the owner of the nonconforming sign to submit two (2) or more independent estimates from established sign companies of the cost of replacing, repairing or renovating, in whole or in part, the existing nonconforming sign and two (2) or more independent estimates from established sign companies of the reproduction cost of erecting a new sign of the same type at the same location, including its supporting structure. C. The estimate required by subsection (b) shall be based on the costs for new materials for both the sign to be repaired and the new sign. Also, the estin~ate shall reflect the reasonable and customary costs in the industry for (1) the delivery of materials and equipment to the location of the sign and (2) the cost of labor for each phase of sign construction. D. No sign or supporting structure which is lawfully reproduced, repaired or renovated as a nonconforming sign shall be increased in effective area or height. 35.15.10.6 Relocation. Notwithstanding any other provision of this Subchapter, any sign which is a legally existing nonconforming sign may be relocated on fl~e same lot or tract of land if fl~e sign is required to be removed from its present location because fl~e property upon which fl~e sign is located is acquired by any governmental agency or off, er entity which has or could have acquired fl~e property fl~rough the exercise of its power of eminent domain. Such relocated sign shall be placed, insofar as possible, as to comply wifl~ all the provisions of tiffs Subchapter. 35.15.10.7 Signs located on nonconforming premises. Where, on the effective date of the ordinance from which this Subchapter is derived, a sign is located on a premises which is a legally nonconforming use of fl~e premises and such sign is used in regard to fl~e premises, fl~e sign may be used and maintained on fl~e premises, even fl~ough it would not be a permitted use, so long as such premises is continually used as a lawful nonconforming use. 35.15.10.8 Nonconforming sign permits. The Building Official may issue a permit to alter a nonconforming sign if the proposed alteration would not cause the sign to exceed the effective area, height, setback, or illumination setback of the sign existing at the time of application for the permit. Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code 35.15.11 Removal of Unlawful Signs. 35.15.11.1 Notice and Order. Any sign, abandoned sign, supporting structure or abandoned supporting structure which is erected, placed, relocated, constructed, reconstructed, altered, displayed, maintained, installed, modified or used in violation of this Subchapter may be removed by the Building Official as provided in this article. The Building Official shall deliver or send a written notice and order to the owner of an unlawful sign or the owner of the premises where the unlawful sign is located. A notice and order sent or delivered to the person listed by the city tax office or county appraisal district as the owner of the premises where the unlawful sign is located shall be presumed to be sufficient. The notice and order shall: A. Describe the nature of the violation; B. Order the correction of the violation within a time specified, which shall not be less than five (5) business days of the delivery or mailing of the notice; and C. Give notice that the Building Official may remove and in, pound the unlawful sign at the owner's expense if the violation is not corrected within the tinge specified. 35.15.11.2 Removal; Appeals. If the person ordered to correct a violation fails to do so wiflfin fl~e time specified, fl~e Building Official may remove or cause fl~e removal of fl~e unlawful sign. Any person aggrieved by fl~e order may file an appeal wifl~ fl~e Board of Adjustment. 35.15.11.3 A. Impoundment; Redemption; Disposal. Any sign which is removed by the Building Official pursuant to this Subchapter shall be impounded and transported to and stored by the Building Official at a location designated for such purpose. Records of where such signs were located and when removed shall be kept. The Building Official shall send a letter to the owner of such sign, if known, or, if not known, to the owner or person in control of the premises where such sign was located, giving notice of such impoundment. The Building Official shall hold the sign in storage for at least thirty (30) days after notice of impoundment has been mailed. Any portable sign may be redeemed by the owner upon the payment of a fee to the city for hauling the sign to storage, plus a per-day storage fee. Any nonportable sign may be redeemed by the owner upon payment of the cost of removal of and hauling the sign to storage, as determined by the Building Official, plus a per-day storage fee. Such fees shall be established by the City Council. Any sign not reclaimed by the owner thereof within thirty (30) days of the mailing of the notice of impoundment may be disposed of in accordance with applicable law. 35.15.11.4 Recovery of Costs. If, upon disposal of an unredeemed nonportable sign, the Building Official has not received an amount sufficient to cover the cost of removal and hauling of such removed sign, the Building Official shall send notice to the owner of the premises where such sign was located, requesting payment of the removal and hauling costs, less any amount received in disposal of such sign. Any such costs remaining unpaid after thirty (30) days from the date of mailing of notice shall become delinquent and shall bear interest at ten (10) percent per annun~. The Building Official may cause such unpaid and delinquent amount to be assessed against the premises where such removed sign was located by filing and perfecting a lien against the premises. The cost levied against the premises shall include an administration fee established by the City Council. 35.15.11.5 Appeal. Any person may contest the reasonableness of fl~e cost of removal of a sign imposed hereunder by filing an appeal with fl~e Board of Adjustment within twenty (20) days of fl~e mailing of the notice of fl~e costs. The 10 Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code board may uphold the cost imposed by the Building Official or impose and levy whatever cost is considers reasonable. Storage costs shall not be appealable. 35.15.11.6 Summary removal of hazardous signs. Notwithstanding any other provision of tiffs Subchapter, fl~e Building Official may summarily remove any unlawful sign which, because of its location or condition, deafly constitutes an immediate hazard or danger to fl~e public. Prior to removing fl~e sign, the Building Official shall make a reasonable attempt to locate the owner of fl~e hazardous sign or person responsible for its display, placement or maintenance to give written notice of fl~e violation, fl~e action necessary to correct fl~e violation and time period in which fl~e correction must be made. The notice shall be delivered to fl~e owner office sign, fl~e owner office premises or fl~e person responsible for the sign's display, placement or maintenance, if located; otherwise, fl~e notice shall be affixed to fl~e sign or off, er prominent place on fl~e premises likely to come to the attention of fl~e owner of the sign or premises. Thereafter, fl~e Building Official may remove fl~e sign if no corrective action is taken in the tinge specified. 35.15.11.7 Certificate of Occupancy. The Building Official shall not issue a certificate of occupancy for any premises on which a sign or supporting structure does not meet the requirements of this Subchapter. 35.15.12 Technical Requirements. 35.15.12.1 Manner of Measurement. The measurements required for signs by this Subchapter shall be made using the following procedures: A. Setback. To apply fl~e setback provisions of tiffs Subchapter for signs at any one (1) point, fl~e following measuring procedure shall be used: 1. Draw an imaginary vertical line extending upward from fl~e curbline of fl~e premises; 2. Beginning at any point on fl~e vertical line, draw an imaginary horizontal line perpendicular to fl~e vertical line and curbline extending toward fl~e premises; 3. Beginning at fl~e point where the vertical line intersects the horizontal line, measure along fl~e horizontal line for the required setback. B. Height. The maxin~un~ height of a ground sign shall be determined by fl~e method of measurement fl~at allows fl~e greater height, as follows: 1. Curbline measurement. Measure along a vertical line extended upward from fl~e nearest curb line of fl~e public street fronting fl~e premises where fl~e sign is to be located, to fl~e maxin~un~ height allowed for fl~e sign. From fl~at point, extend a horizontal line to where the sign is to be located. The horizontal line is fl~e maximum height allowed at fl~at location. 2. IH-35 measurement. Along IH-35, fl~e height may be measured from fl~e principal lanes, fl~e frontage road, or fl~e ground, whichever allows the greater height. 3. Natural ground level measurement. At fl~e highest point of fl~e sign, draw a horizontal line to fl~e outer extremities of the sign. At fl~e center of fl~e horizontal line, draw a vertical line to fl~e natural fl~e ground level below. (The "natural ground level" shall include any changes in topography necessary for development of fl~e property). The vertical line may not exceed height allowed for fl~e sign at fl~at location. C. Effective area means fl~e area enclosed by the smallest imaginary regular shape (e.g. parallelogram, triangle, circle, trapezoid) or combination of regular shapes fl~at will encompass the extreme linfits of fl~e writing, representation, emblem, or off, er display, together with any material or color forming as integral part of fl~e display or used to differentiate the sign from the backdrop or structure against which it is placed. 11 Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code SIGNS DONNA'S Effective area includes such features as decorative or ornamental elements or features, borders, trims, but not including any supporting structure which is used solely for support of the sign, such as poles, columns and cable, or decorative fence, screening device or wall. 1. Sign copy mortared or painted on a background panel or area distinctively painted, textured or constructed as a background for the sign copy, shall be measured as fl~e area contained within the outside din~ensions of the background panel or surface. Sign copy mounted as individual letters and/or graphics against a wall, fence, screening device, awning or fascia of a building or other structure fl~at has not been painted, textured or otherwise altered to provide a distinctive background of fl~e sign copy, shall be measured as the area enclosed by fl~e smallest regular shape or combination of shapes fl~at will enclose all sign copy. XX/t~ere there are a nun~ber of sign faces or more than one sign on a supporting structure. One - Area of tim single face only. Two - If the interior angle between the two faces is 45° or less, fl~e area will be fl~e area of one face only; if fl~e angle between the two sign faces is greater fl~an 45°, tim sign area will be fl~e sum of the areas of fl~e two faces. Three or more sides - The sign area will be the sun~ of the areas of each of the faces. 12 Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code All signs on a single supporting structure shall be measured together as fl~ough they were one (1) sign to detemfine fl~e total effective area, except fl~at signs separated by more fl~an thirty-six (36) inches of air space at every point between the signs shall be measured separately and added together to detemfine the total effective area. Spherical, free-fom~, sculptural, ofl~er non-planar signs~The area enclosed by fl~e smallest in~aginary regular shape or combination of shapes which would fully contain all portions of tim sign when rotated horizontally around tim sign. 35.15.12.2 Abandoned signs and supporting structures. The owner of any premise on which there is displayed or maintained an abandoned sign or abandoned supporting structure shall comply with fl~e following requirements: A. If it is an abandoned portable sign, remove or cease displaying fl~e sign wiflfin flfirty (30) days of fl~e date it becomes abandoned. B. If it is a ground sign fl~at does not meet fl~e size, height, setback and other requirements of tiffs Subchapter and is abandoned on or before March 17, 1993, the owner shall cease displaying the abandoned sign, remove fl~e sign, modify or relocate fl~e sign, or put a blank face or other bona fide message on fl~e sign by June 17, 1993 as is necessary to comply wifl~ fl~e requirements of tiffs Subchapter. C. If the ground sign does not meet the reqtfirements of this Subchapter and is abandoned after March 17, 1993, the owner shall cease displaying the sign, remove fl~e sign, modify or relocate fl~e sign, or put a blank face or other bona fide message on the sign within ninety (90) days of the date is becomes abandoned, as necessary to comply wifl~ the requirements of this Subchapter. D. If a supporting structure used or designed to be used with a ground sign is abandoned on or before March 17, 1993, and fl~e abandoned supporting structure does not comply wifl~ fl~e size, height, and setback, or other requirements applicable to ground signs, fl~e owner of fl~e premises shall cease displaying fl~e supporting structure, or remove, modify or relocate fl~e structure, or put a blank face on a sign wifl~ a bona fide message on the supporting structure by June 17, 1993 as necessary to comply with this Subchapter. If a supporting structure fl~at does not meet the requirements applicable to ground signs is abandoned after March 17, 1993, fl~e owner shall cease displaying fl~e supporting structure or abandoned supporting structure; 1) remove 2) modify 3) relocate fl~e structure and put a blank face or bona fide sign on fl~e supporting structure within ninety (90) days of fl~e date the supporting structure becomes abandoned as necessary to comply wifl~ those requirements. In detemfining whefl~er the supporting structure complies wifl~ the size requirements applicable to ground signs, fl~e effective area of the can frame, or sin~ilar part of fl~e supporting structure fl~at holds or to which fl~e sign is attached shall be measured in the manner applicable to signs, except fl~at all air spaces shall be counted. 13 Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code E. If an abandoned supporting structure does not have a can, frame, or similar part of the supporting structure that would hold the sign or to which the sign would be attached, and such a part or face or sign is placed on the supporting structure, the effective area of the sign or blank face placed on the supporting structure shall not exceed the requirements of this Subchapter. F. No abandoned sign or supporting structure which is altered under the provisions of this section shall be made more non-confomfing. G. Altering, putting a blank face, or putting a sign on an abandoned supporting structure which is abandoned after March 17, 1993, and which would be non-confom~ing, and the cost of which exceeds sixty (60) percent of the reproduction cost of the existing abandoned sign or supporting structure shall not be pemfitted unless in accordance with Section 35.15.10.5.A. H. Any abandoned sign or abandoned supporting structure displayed or maintained, or not removed, modified, or relocated in accordance with this Subchapter by the owner shall constitute a violation of this ordinance, and be considered an unlawful sign and may be removed by the city in accordance with the provisions applicable to the removal of unlawful signs or the owner may be prosecuted as provided under City ordinances or be enjoined from continuing such violation. I. As used in this section, abandoned supporting structure means the poles, beams, cables, or other materials that are used or once were used to support a sign or an abandoned sign. J. If a ground or attached sign that confom~s to the regulations of this Subchapter is abandoned, the owner shall cease displaying the sign and supporting structure or remove same so as not to be visible from any public right-of-way, or paint out or cover the message portion of the sign, or put a blank face on the sign in accordance wifl~ this Subchapter, or place a bona fide message on fl~e message portion so as to leave fl~e message portion and supporting structure neat and unobtrusive in appearance, within ninety (90) days of fl~e date it becomes abandoned. 35.15.12.3 A. Sign face standards. Standards. The following shall be required for the use, display, maintenance, or pemfitting of an alteration of any abandoned sign or supporting structure regardless of when the sign was abandoned: 1. Like material. Only the same or like quality material as that being replaced or that was last installed and used as a face on or in the abandoned sign or supporting structure may be allowed as the sign face, or that part of the structure that carries the sign message or that is blanked. The face of the supporting structure must be one which the supporting structure is designed to support. Painting over a face is allowed to blank the sign face. Examples: Plastic face replaces plastic face, metal replaces metal, wood replaces wood face, etc. 2. Sign copy to be unseen on blank faces. Routed, embossed, or raised messages or sign copy must not be able to be seen, if fl~e face or message is blanked. 3. Color of blank faces. Blank faces must be of one color. 4. Covered messages. a. Painting. Abandoned signs may be painted in order to "blank" fl~e face. However, fl~e paint must completely cover fl~e sign face or message portion of the structure. The covered, painted over message must not show fl~rough fl~e paint. b. Abandoned sign. Covered sign faces must be of a material or substance which renders fl~e resulting sign face completely blank, opaque, and resistant to deterioration. Bleeding or showing fl~rough of a covered message or blanked face shall constitute fl~e displaying or maintenance of an abandoned sign in violation of tiffs Subchapter. 5. Unlawful to cover sign. No person shall cover signs with bags or tarps of any material. 14 Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code 6. Issuance of permit. No permit shall be issued for which a dilapidated or deteriorated condition would not be abated. Permit Required. Prior to any alteration of an abandoned sign or supporting structure, a permit for such shall be required in accordance with the provisions of this Subchapter. 35.15.12.4 Sign Maintenance. It shall be unlawful for any person to display, erect, locate, relocate, or keep any dilapidated or deteriorated sign. 35.15.12.5 Wind loads. All ground, projecting, and roof signs shall be designed and installed to withstand a wind pressure of not less fl~an twenty (20) pounds per square foot of area and shall be constructed to receive dead loads as required by fl~e Building Code. 35.15.12.6 No d~e Use of state right-of-way. person shall cross or park a vehicle on a state right-of-way for the purpose of maintaining a sign adjacent to right-of-way. 35.15.12.7 The A. B. Inflatable devices. following regulations shall apply to any balloon or other type of inflatable device used as a sign: It shall be securely anchored at all tin~es. It shall not extend to a height greater than thirty (30) feet above ground level unless it is attached to the roof of a building, in which case it shall not extend more than ten (10) feet above the highest part of the roof. It shall not be allowed to extend over any public street or right-of-way or over any off, er property not under the control of fl~e permittee. 35.15.12.8 Clearance from electrical lines. Ail signs shah comply with the provisions of the latest edition of the National Electric Safety Code. 35.15.13 Portable Signs. 35.15.13.1 Prohibited. It shall be unlawful for any person to display, maintain, erect, place or relocate any portable or off-premises (billboard) sign on any premises wiflfin fl~e corporate limits and fl~e extraterritorial jurisdiction of fl~e City of Denton fl~at is not a registered portable or off-premises (billboard) sign. No new sign permits shall be issued for portable or off-premises (billboard) signs wiflfin the corporate limits and the extraterritorial jurisdiction of the City of Denton from and after November 5, 1997. 35.15.13.2 Lawful nonconformity. Any portable sign lawfully existing upon any premises before February 21, 1989, in accordance with the provisions of any prior ordinance, shall be allowed to remain on that premises as a nonconforming portable sign, if properly registered and continuously maintained in accordance with the provisions of this Subchapter. 35.15.13.3 Lawful nonconformity from November 5, 1997. Any portable sign lawfully existing upon any premises within the City's extraterritorial jurisdiction before November 5, 1997, and any off-premises (billboard) sign lawfully existing upon any premises within fl~e corporate linfits and extraterritorial jurisdiction of fl~e City of Denton before November 5, 1997, in accordance 15 Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code with the provisions of any prior ordinance, shall be allowed to remain on that premises as a nonconforming portable or off-premises (billboard) sign, if properly registered and continuously maintained in accordance with the provisions of this Subchapter. 35.15.13.4 Maintenance of nonconforming signs. A nonconforming portable sign which is properly registered in accordance with this Subchapter, shall not: A. Be moved to another premises so as to be visible from any public street; B. If removed from any premises for any reason, be placed on the same premises so as to be visible from any public street. 35.15.13.5 Anchoring. All lawful nonconforming portable signs shall at all tin~es be securely anchored so as to prevent overturning or unsafe movement, fl~e sufficiency of such anchorage to be determined by fl~e Building Official. 35.15.14 Regulation of Signs by Zoning Districts. 35.15.14.1 Residential Districts. The following regulations shall apply to RD-5, NR-1, NR-2, NR-3, NR-4, NR-6, NR-12, DR-l, and DR-2 zoning districts, as shown on the official zoning district map of the city: A. Permitted and prohibited type. Ground, wall, wind device and temporary signs are permitted in residential districts. Roof, projecting and off-premises signs are prohibited in residential districts. B. Effective area and height. No ground sign shall have an effective area greater than fifty (50) feet or a greater height than six (6) feet. C. Setbacks. All ground signs shall maintain a minin~um setback of ten (la) feet from the curbline and any side or rear yard property line, except that any ground sign may make use of a supporting structure for a ground sign that was lawfully erected on or before February 21, 1989, without regard to the side or rear yard setbacks specified in this subsection, if the sign so placed would not violate any other provision of this Subchapter. (See Illustration 14a.) D. Number of ground signs. Only one ground sign which is not a temporary sign, shall be located on any one premise, except as follows: 1. Any premise having frontage on more than one (1) freeway, arterial or collector street may locate one (1) on-premise ground sign in the defined front yard of each street, provided that neither sign is located within that area that includes the overlapping front yards of both streets. 2. Any premise which has more than five hundred (500) feet of public street frontage on a freeway, arterial, or collector street may make use of one additional sign for each five hundred (500) feet of additional frontage on that street, or fraction thereof, if each additional sign permitted is located more than sixty (60) feet from another permitted ground sign on the same premise. The distance between the signs shall be measured along the curbline, from and between the two (2) points on the curbline which are nearest the two (2) signs. 3. Temporary Signs. See Section 35.15.16. E. Illuminated sign setback. Any ground sign over ten (la) feet in height and any wall sign over fifteen (15) feet in height shall maintain the following setback from any property used for a single family residence or property zoned for single family if the sign would be visible from such property: 16 Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code Non-illuminated 1 O0 feet Internally Illuminated 200 feet Externally Illuminated 500 feet The setback shall be measured in a straight line from the district boundary line or residential property line to the nearest portion of the sign or its supporting structure. A sign shall be considered visible from a residential property or district if the sign can be seen from six (6) feet above ground level from any point on the property or within the district. The setback shall not apply between a sign and a single-family residence located on the same premise. 35.15.14.2 The A. Nonresidential districts. following regulations shall apply to signs in any zoning district not designated in Section 35.15.14.1: Type. Ground, wall, roof, temporary, wind device and projecting signs are pemfitted in nonresidential districts. Effective area and height. 1. Ground signs shall have a maximum effective area and maxin~un~ height based on fl~e street frontage of fl~e property where located, as follows: IH 35N, 35E, or 35W 250 sq. ft. 40 ft. 300 sq. ft. Loop 288 150 sq. ft. 30 ft. 200 sq. ft. Other primary arterials 60 sq. ft. 20 ft.* N/A All Other Streets 60 sq. ft. 6 ft. N/A *Except for the Central Business districts. 2. Any premise may make use or one (1) on-premise ground sign or a maximum height or fifteen (15) feet and an effective area of one hundred twenty (120) square feet, in lieu of any two (2) pemfitted ground signs. 3. For any premise which has frontage on a primary arterial street and has more than one (1) tenant or occupant in separate offices, rooms, or buildings, the effective area of one (1) ground sign, if used to advertise more than one (1) tenant or occupant, may be increased above sixty (60) square feet by 0.5 square feet for each foot of frontage on the primary arterial, but not in excess of one hundred fifty (150) square feet. Setbacks. Ground and projecting signs shall maintain a minimum setback of twenty (20) feet from the curbline of any public street and a minin~un~ setback of ten (10) feet from any side or rear yard property line, except as follows: 17 Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code 1. A ground sign may make use of a supporting structure for a ground sign that was lawfully erected on or before February 21, 1989, without regard to the side and rear yard setbacks specified herein, if the sign so placed would not violate any other provision of this Subchapter. 2. On properties fronting primary arterials, the minimum setback of twenty (20) feet for ground signs may be reduced up to a minimun~ of fifteen (15) feet from any curbline, if the height of the sign is no higher than the setback (i.e., setback = 18 ft., height = 18. ft or less). Number. Only one (1) on-premise ground sign which is not a temporary sign shall be located on any one (1) premise, except as follows: 1. Any premise which has street frontage upon more than one (1) freeway, arterial or collector street, may locate one (1) on-premise ground sign in the defined front yard of each arterial or collector street, provided that neither sign is located within that area that includes the overlapping front yards of both streets. 2. Any premise which has more than five hundred (500) feet of street frontage on a freeway, arterial or collector street may make use of one (1) additional on-premise ground sign for each additional five hundred (500) feet of frontage, or fraction thereof, if each additional sign permitted is located more than sixty (60) feet from another permitted ground sign on the same premise. The distance between the signs shall be measured along the curbline, from and between the two (2) points on the curbline which are nearest the two (2) signs. Spacing Requirements. 1. Off Premises Signs. No off-premises ground sign shall be located within one thousand five hundred (1,500) feet of another off premises ground sign on the same side of a public street. The measurement shall be between the two (2) points on the curblines which are closest to the respective signs, along and parallel to the curbline and across any intervening street intersections. 2. Signs and Residential structures. Any ground, roof, or projecting sign over ten (10) feet in height and any wall sign over fifteen (15) feet in height, shall maintain the following setback from any single family zoning district or property used for a single-family residence if the sign would be visible from that district or property: Non-illuminated 1 O0 feet Internally Illuminated 200 feet Externally Illuminated 500 feet 35.15.14.3 A. The setback shall be measured in a straight line from the district boundary line or residential property line to the nearest portion of the sign or its supporting structure. A sign shall be considered visible from a residential property or district if the sign can be seen from six (6) feet above ground level from any point on the property or within the district. The setback shall not apply between a sign and a single family residence located on the same premise. Planned development districts. The regulations for signs located in planned development zoning districts shall be contained in the ordinance or concept or detailed plan approved for the district, except that no off-premises signs shall be permitted. Should the regulations for signs be omitted from an ordinance or concept or detailed plan for 18 Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code the district, the sign regulations that, would be applicable to the most restrictive comparable zoning district classification, based upon the land uses permitted therein, as determined by the Director, shall be applied to the district or part thereof for which the regulations were omitted. B. Deviations from the standards in this Subchapter may be considered if the continuous street frontage in the planned development district is less than that required for consideration of approval of a Special Sign District. C. Deviations from the standards in this Subchapter may be approved as long as the deviations equally meet the objectives of this Subchapter, such deviations are necessitated b the design of the development within fl~e planned development district, and such deviations are found to meet fl~e criteria as fl~at for creation of a Special Sign District pursuant to Section 35.15.17. D. Approval of deviations from general sign standards shall be supported by written findings approved by the City Council or the Planning and Zoning Commission, if the Planning and Zoning Commission is authorized to approve a detailed plan in accordance with Article IV of Chapter 35. 35.15.14.4 Central business districts. The following regulations shall apply to signs in the Central Business District: A. Type. Ground, wall, roof, temporary, wind device, proiecting, and sandwich board or "A" frame signs are permitted in central business districts. B. Effective area and height. No ground or roof sign shall have an effective area greater than sixty (60) feet, and no ground sign shall have a height greater than six (6) feet. C. Right-of-way limitation on projecting signs. No proiecting signs shall proiect or extend into the public right-of-way for a distance of more than ten (t0) feet or within two (2) feet of the nearest curbline, whichever is more restrictive. No proiecting sign, supporting structure or part thereof which extends into the public right-of-way shall occupy any of the space between the ground level and eight (8) feet above the ground level in fl~e right-of-way. D. Sandwich board signs or "A" frame signs must conform to the following regulations: t. Maximum sign height shall be three (3) feet. 2. Maximum sign widfl~ shall be two (2) feet and signs shall not be placed in front of adjoining property and no portion of fl~e sign shall extend more fl~an fl~ree (3) feet from the building face. 3. Signs must be properly anchored (temporarily) or weighted against fl~e wind. 4. A minimum clear sidewalk width of forth-eight (48) inches shall be maintained. 5. Chalkboards may be used for daily changing messages and no changeable letter on tracks may be used. 6. Signs shall be designed and constructed so as to promote and not visually obscure fl~e significant architectural features of fl~e National Register District and its buildings. 7. Signs must be removed after business hours. 8. No off, er portable signs are permitted. 9. Sidewalks must be at least ten (t0) feet wide in order to erect or maintain a sandwich board or "A" frame sign. t0. Permits fees for applications, renewals, alterations, and variances shall be set by city council as for other signs in tiffs chapter. Applications for sandwich board or "A" frame signs must be approved by fl~e City of Denton Historic Preservation Officer before the issuance of a permit and all applications must be submitted for Officer approval at least fourteen (14) days prior to installation. 19 Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code 11. Permits for sidewalk or "A" frame signs shall be valid for the location designated on the application for one (1) year. Permits may be transferred to another owner after payment of a transfer fee set by city council. 12. Any variance to the requirements for sandwich board or "A" frame signs will be handled the same as any off, er sign variance. The Board of Adjustment in considering any variance request regarding sandwich board or "A" frame signs shall consider any recommendation made by fl~e Historic Landmark Commission regarding fl~e application. 35.15.15 Attached Signs. 35.15.15.1 Scope. In addition to any other applicable regulations, the regulations in this section for attached signs shall apply to the type of sign specified in all zoning districts. 35.15.15.2 Roof signs; Projection. Roof signs and their supporting structures shall not extend laterally beyond the exterior walls of the building and shah have a maxin~um height and effective area as follows: 1 55% of bldg. Height 60 sq. ft. 2 36% 75 sq. ft. 3 to 5 30% * 6 to 9 25% * 10 to 15 23% * 16 or more 40 feet * · For each story above two (2) stories, the effective area of the sign may be increased by fifteen (15) square feet per story, to a maximum of two hundred fifty (250) square feet. 35.15.15.3 A. B. Projecting signs. Construction. All projecting signs shall be securely attached to the building or structure. Projection beyond roof. A projecting sign shah not extend upward to a height greater than the highest part of the roof or any exterior wall, whichever is higher. Size. The total square footage of all projecting signs shall not exceed twenty (20) percent of the wall area on which such signs are located. 35.15.15.4 Signs on common buildings. When one (1) or more attached signs are located on a building which is divided and contains more than one (1) business or use, the regulation of such attached signs as to size and projection shall apply separately to the part of the exterior walls which contain that business or use. 20 Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code 35.15.16 Temporary Signs. 35.15.16.1 Temporary Signs. A temporary sign shall be considered a ground sign and shall be pemfitted only according to the standards for ground signs except that a temporary sign not larger than thirty-two (32) square feet in effective area need not be pemfitted if: A. The supporting structure of this sign is not larger than one in which two perimeter din~ensions are greater than four (4) inches or one in which the diameter is not greater than four (4) inches; B. No more than one (1) off-premises sign advertising the sale or lease of one (1) piece of real property or one (1) real estate subdivision or development sign is placed on any one (1) premise; C. No temporary sign shall be located within any public street median or within ten (10) feet of any curbline; and D. The temporary sign shall be removed or cease to be displayed within ten (10) days after the event being commtmicated or advertised on the sign has occurred. 35.15.16.2 A. Wind device signs. Wind device identification tag. The Building Official or his designee shall issue a registration tag to the wind device pem~ittee. The wind device permittee shall cause the tag to be affixed in a conspicuous place on the pem~itted wind device. The provisions of this Subchapter regulating wind device signs shall not apply to the following: 1. Texas or U.S. flags. No pemfit shall be required to display one (1) U.S. or one (1) Texas flag, or both, on any one premise. If the exempted flags are displayed on flagpoles in the manner of a grotmd sign, the number, height, size, and spacing requirements applicable to ground signs shall not apply, but the flags and poles shall maintain the required setbacks for ground signs. 2. Exempted flag. On a premise, no pemfit shall be required to display one (1) flag that meets the following standards: 8. The exempted flag is displayed on a flagpole in the manner of a ground sign, the nun~ber and spacing requirements applicable to ground signs shall not apply, but the flag and poles shall maintain the required setbacks for ground signs. b. The exempted flag shall have a maximum effective area of fifty (50) square feet and a maximun~ height of thirty (30) feet, unless it is used on the same flagpole used to display a national or state flag. 35.15.17 Special Sign Districts. 35.15.17.1 Purpose. The purpose of a special sign district is to allow properties to deviate from the sign regulations of this Subchapter if a qualifying property has an alternate comprehensive plan that is clearly superior to what could be accomplished under standard regulations. 35.15.17.2 Application and plans. Any person requesting the creation of a special sign district, or amendment of a sign district, shall submit an application, the fee and the required plan, along with any other infom~ation specified by the Director. 21 Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code 35.15.17.3 Sign plan. The sign plan for the district shall show, in the fom~ and manner specified by the deparm~ent, the location, setback, size, dimensions, height of all signs regulated by tiffs Subchapter, any off, er conditions, restrictions, or regulations fl~at will apply to the district, and any off, er infom~ation specified by the deparm~ent, fl~e commission, or council needed to adequately evaluate fl~e sign plan. Such infom~ation may include, but is not lin~ited to, infom~ation concerning the items noted in Section 35.15.17.4. 35.15.17.4 Creation, Review of Plan, Criteria. The City Council may approve the creation of a sign district for any property which has more than three hundred (300) feet of continuous street frontage on one (1) public street if it finds the district: A. Provides a comprehensive plan for signs fl~at would be clearly superior to what would be allowed without fl~e plan; B. Would be compatible wifl~ surrounding properties. In considering whefl~er a district and sign plan is "compatible" and "clearly superior", fl~e commission and council shall consider, but are not limited to considering fl~e following: 1. Scale. The relationship between and compatibility of sign scale, site scale and fl~e scale of nearby buildings. 2. Color. The relationship between and compatibility of sign color to fl~e color of nearby buildings and landscaping: The degree to which sign colors are complimentary to its surroundings. 3. Material. The materials office signs and how fl~ey relate to fl~eir surroundings. 4. Shape. The shape and design of the signs and how they relate to their surroundings. 5. Landscaping. The relationship of signs to landscaped features in and outside fl~e district. 6. Traffic Safety and Traffic Circulation. The impact of fl~e signs on driver's view, the degree to which view obstructions are created or improved, avoidance of confusion wifl~ or obstruction of traffic control signs and devices, and fl~e time it takes a motorist to read fl~e sign. 7. Illumination. The in, pact and compatibility of sign illun~ination within fl~e district and in relation to neighboring properties. The avoidance of glare and light pollution. 8. Integration. How the signs in fl~e district are integrated into a unified development concept wifl~ fl~e topography, building design, off, er signs, landscaping, traffic circulation and other development features on fl~e district and nearby property. a. Is not being used merely to avoid or gain a variance of the sign regulations; b. Does not violate fl~e spirit or intent of the sign regulations; and c. Complies wifl~ the requirements of tiffs section. 35.15.17.5 Conditions imposed. The Planning and Development Deparm~ent and the Planning and Zoning Commission may recommend and fl~e city council may impose appropriate conditions concerning fl~e placement, design or use of signs in the district in order to protect surrounding properties, fl~e community, and comply with fl~e intent of tiffs Subchapter. 35.15.17.6 Procedures. The procedures for approval ora sign district and thereafter any amendment of the district, shall be the same as fl~ose applicable to a change in zoning classification or regulations. 22 Subchapter 15 ...................................................................................................................................................................................................................................................... Development Code 35.15.17.7 Designation on zoning map. Property approved as a special sign district shall be shown on fl~e official zoning map wifl~ fl~e abbreviated designation "SD". END 23 CondcnscltTM Page 193 1 COMMISSIONER RISHEL: That should bring us 2 to Item No. 14 on our Agenda. And Item No. 14 should 3 be posted on our docucam which is a public hearing and 4 consider making a reconmtendation regarding amendment to 5 the Development Code related to sign regulations. Mr. 6 Grace, if you could take your discussion out in the field 7 there, I would appreciate it. Mr. Reichhart, would you 8 present? 9 MR. REICHHART: Thank you. Before us 10 tonight we are looking at amendments to the Development 11 Code relating to the sign regulations. When the Code was 12 adopted, the sign regulations were not included in that. 13 The intent was to potentially maybe look at a 14 comprehensive rewrite of that. But at this time what we 15 are proposing is a little bit of clean up and an amendment 16 to allow what is commonly referred to as motion picture 17 signs. There is an application that came before the Board 18 of Zoning Appeals. The Code currently does not allow any 19 2O 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 Page 195 1 in the audience that would like to speak on this item, but 2 I'd be happy to answer any questions that you may have. 3 COMMISSIONER RISI-IEL: commissioners, any 4 questions of Mr. Reichhart? Commissioner Holt. 5 COMMISSIONER HOLT: Mr. Reichhart, is that 6 type of sign, I have no clue what it is, is that like the 7 speedway sign? Is that what that is? 8 MR. REICUnmaT: Yeah, I believe it is. But 9 I think the applicant, not the applicant but one of the 10 speakers will have some more information on that type of 11 sign. But it is very similar to that, I think. 12 COMMISSIONER HOLT: And there are no other 13 municipalities around here that use them? 14 MR. REICHHART: ACcOrding to Our impromptu 15 research, there are very few local municipalities that do 16 allow these signs. I believe Arlington allows them on a 17 very limited restriction, time and temperature type of 18 signage that you'll see for banks, special events. motion picture type of signage in the City. So an application came forward for James Wood Autopark to install one of the newer type signs that uses the -- I can't even recall the type of technology now and there is someone in the audience that would be able to explain it, but it's the lead crystal lighting, type of low wattage and very clear type of picture. Page 194 COMMISSIONER RISHEL: LAD. MR. REICHHART: Thank you. The Zoning Board basically didn't want to set a precedent by approving the variance and then -- you know, with the thought that other properties along 1-35 might also ask for this, they requested that this be brought forward to City Council to look at amending the ordinance. And that is what we're looking at tonight. We are going to do a little bit of clean up. And you see it's very minor in how we set an abandon 19 20 21 22 23 24 25 Farmers Branch, Carrollton, Piano, and Frisco are some of the local communities that we did approach and they do not allow these. A lot of the regulations that you'll see in the proposed ordinance came from Hollywood Parks, California through their website. You know, we do a quick little web search. For example, Las Vegas does not permit these. Along the strip you can have them but it's not Page 196 1 that type of gaudy, flashing, you know, bulbs that we're 2 proposing. But there aren't very many communities that do 3 allow it. 4 COMMISSIONER RISHEL: Can I make a 5 clarification comment? The speedway sign would not be 6 allowed in our Code and ordinance in this community 7 because of the size and height, also, I mean, the size of 8 the sign. 9 MR. REICHHART: I imagine that's correct. 10 COMMISSIONER RISHEL: Anything over 40-foot sign because in the past, we've noticed that there will be just a pole sitting out in the middle of a parking lot or 13 something and we want it torn done as an abandoned sign. 14 But, you know, people will say it's not a sign, it's a 15 pole, and it used to be the pole for the sign. And 16 another simple one is you can't cover any sign with bags. 17 And people were throwing tarps over them and the tarp 18 would then blow away and cause problems. So we're 19 cleaning that up too, just saying you can't just cover 20 signs. 21 But there are a number of restrictions that we i22 are looking at for electronic reader board signs now that 23 is in your backup. We can have discussion regarding any 24 of those limitations or additional limitations you'd like 25 us to investigate. I do know there are a couple of people 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 so there's several other things that -- that particular type of sign. MR. REICHHART: Yes. COMMISSIONER RISHEL: Thank you. MR. REICHHART: Not that size. COMMISSIONER RISHEL: MS. Holt, I didn't mean to -- fine. COMMISSIONER HOLT: Thank you. That's MR. REICHHART: -~ interrupt. You still have the floor. COMMISSIONER HOLT: That's fine. COMMISSIONER RISHEL: Thank you. Commissioner Roy. COMMISSIONER ROY: Yes. You brought up a PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 193 - Page 196 CondcnscltTM Page 197 1 couple of things, I mean, the motion picture sign and a 2 couple of little clean up items. But just for 3 clarification, this whole ordinance that we were given is 4 open for discussion tonight; is that correct? 5 MR. REICHHART: It is and I believe -- yes, 6 it would be. 7 COMMISSIONER ROY: Because I do have 8 questions throughout this thing and I would like to -- 9 MR. REICHHART: One of the -- what we 10 didn't do specifically, the changes that we're proposing 11 are strictly how the Code is really being interpreted to 12 date. You know, even though it doesn't say a pole that 13 used to be part of a sign is a sign, we have interpreted 14 it that way and do enforce it that way. What this is not 15 is a comprehensive review and rewrite of our signage 16 ordinance. 17 COMMISSIONER ROY: BUt you're asking us to 18 sign off on this document that you gave us to review; is 19 that correct, the entire document, not just your changes? 20 MR. REICHHART: It would be the entire 21 document. 22 COMMISSIONER ROY: okay. Thank you. 23 COMMISSIONER RISHEL: Commissioner Mulroy. 24 COMMISSIONER MULROY: would you explain 25 again, in your preface you said that it was not meant to Page 198 1 be an undertaking to review this chapter. It was left out 2 of the Code. At some point in time, it's going to be 3 addressed to be reviewed paragraph by paragraph. But this 4 exercise was a clean up tonight and to address the one 5 sign issue. 6 MR. REICHHART: Yes, because we had that 7 application and it's been over six months probably since 8 that application came forward, we are trying to 9 specifically address one issue now and then come back at a 10 later date for a comprehensive review. 11 COMMISSIONER MULROY: Yeah, for a 12 comprehensive review at a future date. That's what I 13 understood so I haven't done the homework Joe has and 14 would be at a disadvantage to delve into that. 15 MR. REICHHART: And the idea when we did a 16 -- in order to do a comprehensive rewrite, we do need to 17 do the research on what other communities in the area are 18 doing. I think we'd have to involve, you know, Chamber 19 and local business people in any type of rewrite to this 20 sign ordinance. So at this point, I mean, if the intent 21 is to do that and bring other aspects into it, I don't 22 believe we would be prepared to do that in a very quick 23 turn around. But the -- and, again, at the last City 24 Council heating at the 14th, even the Mayor had indicated 25 that, you know, it's time to take a look at our sign 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 Page 199 ordinance and to do a comprehensive rewrite. COMMISSIONER RISItEL: We get txvo different answers there, I can tell. COMMISSIONER ROY: Yes, two different answers. Maybe if there somehow -- I don't want to put my stamp of approval on this document the way it's written. Now, I'm happy to address the specific changes you want to discuss tonight and vote. I think we're going to vote to accept that or not and be very specific. I don't mind to do that. But I don't want to be on record of approving this document as you presented it to us. MR. REICHHART: If you're saying you would like to see wholehearted changes to that document, I understand what you're referring to. COMMISSIONER ROY: But are you going to be asking the Planning and Zoning Commission to approve this entire document tonight or just the changes that you are proposing? MS. PALUMBO: can I butt in here? COMMISSIONER RISHEL: MS. Palmnbo. MS. PALUMBO: The sign ordinance has already been adopted by the City Council. What we have done is just recodified into the Development Code so it is already an ordinance that's been adopted by the City. It just hasn't been numbered to fit into the Development Page 200 1 Code. So it's akeady been approved. 2 MR. REICHHART: It'S an existing ordinance. 3 COMMISSIONER ROY: SO specifically what are 4 we going to act on tonight? 5 MS. PALUMBO: The changes that are proposed 6 in the staff -- and then at the time for the comprehensive 7 revision of the sign ordinance, I assume that it will be 8 brought back as a work session and we'll address all the 9 areas. 10 COMMISSIONER ROY: okay. I understand. 11 Thank you. 12 COMMISSIONER RISHEL: commissioner Powell. 13 COMMISSIONER POWELL: Thank you, Mr. 14 Chairman. Mr. Reichhart, I'm a little bit bouncing off of 15 Mr. Roy here. I would be comfortable, I believe, in 16 voting on the Items 1, 2, 3, 4, and 5 shown on page 3 and 17 4 of our backup. And if we could vote on them in that 18 fashion, I think that would be fine. But there is nothing 19 in this City that draws more heat and fire and fireworks 20 than the sign ordinance. And believe me, I don't want to 21 make any major changes to our sign ordinance without 22 public input, lots of it because I've been through it once 23 and I know what it draws. I don't think the sign 24 community, the public knows, for some reason, that we're 25 going to be making or approving or whatever the whole sign PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 197 - Page 200 CondcnseltTM Page 201 1 ordinance tonight. I'm not comfortable with that. I 2 don't understand it enough to vote in any way. 3 I am comfortable with if we could, you 4 know, say we could approve Item 1, 2, 3, and 4 if you 5 could explain to us quickly the changes in those items. I 6 think I understand them. But that's as far as I want to 7 go tonight. I'm not comfortable with anything else. 8 MR. REICHHART: If I can try to maybe 9 clarify. I probably didn't do a very good job of doing I0 this. We do have an existing sign ordinance right now 11 that is in effect. It wasn't rolled over into the 12 Development Code. So the ordinance you're looking at at 13 the back of this book is simply a reformatting to get it 14 in the same format as all the other chapters in thc 15 Development Code. No changes except for the 1, 2, 3, 4, 16 and 5 that we talked about. Okay. The definition of a 17 pole or what an abandoned sign is, that's one of the 18 clarifications. Putting a bag and a tarp over the sign, 19 that's another clarification. 20 But besides that, I mean, forgot about the 21 new type of sign, the motion picture sign. It's the exact 22 same code. It's how we're enforcing it right now. It's 23 just reformatted so we can insert it in the same book. 24 Instead of having our Development Code, you know, with 20 25 chapters and over here is our sign ordinance, it's just a Page 203 1 Mr. Reichhart. And you will have a chance for rebuttal. 2 I have a couple of cards of persons that would like to 3 speak regarding Item No. 14 on our Agenda. And this is 4 a public heating and I have a card from Barb Onstott. 5 It's not Bob, I can tell. 6 MS. O~STOTX: Mr. Chairman, ladies and 7 gentlemen, my name is Barbara Onstott. I'm with 8 Datatronic Control Incorporated at 5130 Dexham Road in 9 Rowlett, Texas. Datatronic Control is an OEM manufacturer 10 of all types of electronic signage so I'm really here on 11 an informative basis to answer any questions you may have 12 about this and to try to explain the new technologies that 13 have become available since the last changes to any kind 14 of sign code you've had here in Denton. I have a 15 little -- 16 COMMISSIONER RISHEL: why don't you let 17 staff pass that out for you. Mr. Grace or someone. 18 MS. ONSTOTT: ~'11 give everyone a moment. 19 COMMISSIONER RISHEL: why don't you carry 20 on and we'll expedite this. 21 MS. ONS?OXX: okay. 22 COMMISSIONER RISHeL: It's 11:00 o'clock. 23 MS. ONSTOTT: The new type technology that 24 most cities are looking at, now many cities already have 25 acc~pmt this, Dallas, Mesquite, Seagoville, Garland, wait. Page 202 1 way to get them all in one place. We're not proposing any 2 changes except those few minor clarifications. 3 COMMISSIONER RISHEL: If we would have 4 known that, we would have saved 20 minutes already, 5 wouldn't we? 6 MR. REICHHART: NOW, the other addition 7 that we're looking at is the electronic reader board 8 variable message sign. And the question really is do 9 we-- lO COMMISSIONER POWELL: IS that itemized? 11 MR. REICHHART: Yes, sir, it is on page 4. 12 It is Item 5. And this is what we would add in the 13 ordinance. Now then the question is do we want to add 14 that, do we not want to add it? Do we want to make the 15 other changes and reformat it? Do we want to leave it 16 alone? 17 COMMISSIONER RISHEL: And, once again, this 18 is a public hearing and we have not yet had a chance to 19 address the public and how their input is here. 20 Commissioners, any further questions of staff?. 21 COMMISSIONER ROY: I do but I think I'll 22 23 24 25 COMMISSIONER RISHEL: Thank you. MR. REICHHART: Thank you. COMMISSIONER RISHEL: Thank you very much, Page 204 1 Grand Prairie, and Irving all currently allow this type 2 and other types of electronic signage. Previously, and 3 what I've seen here in the local vicinity, was the oldest 4 of all of that technology. It was the incandescent lamp 5 technology which utilized a 50 or a 70 watt lamp to create 6 words that could scroll across a message center. Now, 7 there was a lot of objection to that kind of technology 8 because the brightness of the lamp was sometimes 9 distracting to drivers coming up the highway. But it was 10 intended to be used as big character, bright light, in 11 your face advertising and was embraced by truck stops and 12 highway applications. 13 The next generation of technology which was 14 about eight years ago, utilized a smaller lamp which would 15 be anywhere from a seven watt lamp to a ten watt lamp. It 16 cut down on all of that complaint about the brightness of 17 the lamps in a driver's eyes but it still required a lot 18 of upkeep. People don't keep up their lamp signs. They 19 look terrible if they're not maintained properly. 20 The new generation of technology is 21 replacing all of the old lamp technology. Like I said, 22 we're a 36 year old manufacturer. And five years ago, 23 only three percent of our business was LED. This year 24 only two percent is lmnp. Cities, municipalities, schools 25 are all utilizing it. But -- you see it on traffic PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 201 - Page 204 CondenscltTM 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 Page 205 signals, you no longer see the incandescent lights on the traffic signals. It's been used for roadway information for several years now. That's the technology that this is. Where you have huge watt usage, this uses only ten percent of the power and electricity that any of the lamp technologies ever used. There's no relamping on the face so you don't have that esthetic detrimental look to the property. Maintenance is about 30 percent of what the old lamp units used. So this is the new wave of the future Page 207 1 a lighting problem as in affecting the traffic on 35. I 2 think the City has visited back and forth and I think 3 they're pretty satisfied that it's not going to be a 4 problem. 5 COMMISSIONER RISHEL: And the signage that 6 you're seeking is not what we would call motion picture 7 signage, is it? 8 MS. LEWIS: NO, sir. No, sir. It won't 9 compare it, nothing with what you see at the speedway. for the electronic sign technology. It's used for everything from time temperature up to alpha numeric signs, which is the text, a few graphics, time and temperature community service things. I did a little overview to explain what the technology is and I've heard the sign type of motion 10 11 12 13 14 15 COMMISSIONER RISHEL: Okay. MS. LEWIS: It will be a very -- no, not a million dollars anyway. COMMISSIONER RISHEL: We have a couple of questions from Commissioners. Commissioner Keith. COMMISSIONER KEITH: My question would be picture used here. When you're talking about one of those type of units, you're talking about about a million dollar sign. I don't think the majority of the people here in this community are going to be utilizing that. The typical sign is something like Westway Ford, Showcase Chevrolet, American Airlines has one, and then the Honda dealerships. Those kind of signs are used for animal clinics, gives you some text, a few simple graphics, and time and temp. Any questions? COMMISSIONER RISHEL: commissioners, any Page 206 questions of Ms. Onstott? Thank you very much now. I have another card from Ms. Lewis, Judy Lewis. Did you care to speak, Ms. Lewis? MS. LEWIS: I'm Judy Lewis. I'm with James Wood Motors, James Wood Autopark, 3906 1-35E South here in .16 17 18 19 20 21 22 23 24 25 for Mr. Reichhart. In our sign ordinance that's existing and then with these changes you're proposing, would this be affected? MR. REICHHART: would this be affected? COMMISSIONER KEITH: Yes, affected, prohibited or -- MR. REICHHART: well, if you don't make a motion to include the electronic reader board sign, they could not do this sign. COMMISSIONER KEITH: clarify, please. Page 208 1 MR. REICHHART: Again, on page 4, Item No. 2 5 is the fifth and final amenchnent to the proposed sign 3 ordinance that we have in your backup. It would allow 4 this type of sign. The current ordinance does not allow 5 this type of sign. So by moving this forward, it would 1 2 3 4 5 6 Denton. I'm here just tonight to answer any questions. 7 We have an application in for this sign. It is not a 8 large sign. Barb, how big is the sign? 9 MS. ONSTOTT: six foot by 24 foot. 10 MS. LEWIS: six by 24 foot sign so it's not 11 a large sign. It is an informational sign and it could 12 have some symbols of a truck or a car or something that's 13 going to affect our dealership. Time and temperature will 14 also be used. We do have a large sign indicator. It is 15 the old lamp signage. And we're looking forward to 16 hopefully having a new LEO sign. Can I answer any 17 questions for y'all? 18 COMMISSIONER RISHEL: commissioners, any 19 questions of Ms. Lewis? 20 MS. LEWIS: we do understand that it's not 21 going to -- you know, we've made every effort to keep our 22 lighting down at the dealership. We've changed lens. 23 We've worked with all of our neighbors. I think everybody 24 is happy now with the things that we've done to help them 25 with the lighting around the dealership. And this is not 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 allow this type of sign. COMMISSIONER KEITH: SO if we permitted Item No. 5 -- MR. REICHHART: -- this would be permitted. The I~Er) type of sign would be permitted. COMMISSIONER KEITH: okay. MR. REICHHART: I think the biggest -- COMMISSIONER KEITH: would you please go to it and -- MR. REICHHART: The definition, a sign with a fixed or changeable static display message composed of e series of lights or neon that may be changed through electronic means and which do not produce more than ten watts per series of lights or neon tubing. COMMISSIONER KEITH: If I read this, we're looking at a series of lights with this, are we not? MR. REICHHART: Yes, and that is what we're saying would be permitted. COMMISSIONER KEITH: okay. MR. REICHHART: Right now under our Code, ?LANNING AND ZONING COMMISSION MAY 22, 2002 Page 205 - Page 208 CondenseltTM Page 209 1 because they can change the face of the sign, it's 2 considered a motion picture sign and is prohibited. By 3 changing or adding this definition, that an electronic 4 reader board sign is permitted, then this type of sign 5 would be permitted because it falls under that definition. 6 COMMISSIONER KEITH: okay. Thank you. 7 COMMISSIONER RISHEL: Any further 8 questions, Commissioners, of Ms. Lewis? Any further 9 questions of Ms. Lewis? Thank you very much, Ms. Lewis. 10 MS. LEWIS: Thank you. 11 COMMISSIONER RIS~eL: Thank you for your 12 clarification, Mr. Reichhart. Co~mnissioners, any further 13 questions of staff?. And, once again, I have exhausted the 14 cards that I had and I prestone that there's no one else 15 who was here to speak regarding Item No. 14 on our 16 Agenda. So I will ask staff in some form to give us a 17 final summation. 18 MR. REICHHART: NO further comments. It is 19 the first four items are clean up on the existing Code. 20 The fifth item that's in your backup would be in addition 21 to the Code that would allow the LEt) type of signs. 22 COMMISSIONER RISHEL: which is the type of 23 sign that they're -- the two speakers were seeking. 24 Conunissioner Powcll. 25 COMMISSIONER POWELL: I'm ready to move. 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 Page 211 1 motion. Commissioner Keith 2 COMMISSIONER KEITH: Yeah, thank you. As 3 I'm reading this again, I look down at the restrictions. 4 I see this as a display sign, message sign, correct, lVlr. 5 Reichhart? 6 MR. REICHHART: Yes. 7 COMMISSIONER KEITH: okay. So we have a 8 restriction saying it must be limited to off peak traffic 9 times; is that correct? 10 MR. REICHHART: Yes. And that was based on 11 research that the Engineering Department did regarding 12 traffic safety. The idea is to limit the amount of the 13 sign being changed during the heavy traffic flow, to keep 14 it static, basically, you know, during peak moming and 15 evening times, then let it, allow it to move in off peak 16 times. 17 COMMISSIONER KEITH: okay. Well, as I'm 18 sitting here reading these restrictions, you're very much 19 enacting a provision to allow this to be used. The 20 defendants and presentation did a very fine job. But 21 before we come in and start restricting them, I think we 22 need to have a little bit more explanation of these 23 restrictions and discussion. I think this is what Mr. Roy 24 is alluding to. If I'm not correct, if I may ask him of 25 that. I just feel a little uncomfortable about proceeding Page 210 COMMISSIONER RISHEL: I may have some further questions. Would you mind if I got clarification on those? COMMISSIONER POWELL: NO. COMMISSIONER RISHEL: And I will refer to the other Commissioners. Conunissioner Roy. COMMISSIONER ROY: YeS. If We were to approve Items 1 through 4 but not Item 5, how soon could we retake up Itm~a 5 and get more information on it and have a good thorough discussion on it? MR. REICHHART: I believe it depends on -- COMMISSIONER ROY: I raise my question because we have someone who wants to do something. MR. REICHHART: YeS, but it depends on the type of information that you need. You know, unless you give me specifics on we want information on, is it safety, is it, you know, what they look like or what type of information do you need, I can't gauge how long it would take us to get it without that. I need some clarification that way. But we could probably turn it around in, you know, two meetings, you know, five weeks. COMMISSIONER ROY: Thank you. COMMISSIONER RISHEL: commissioner Powell. Excuse me, Commissioner Keith. I'm going to come back to you, Commissioner Powell, because you want to make 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 Page 212 with this without our having another workshop or something. COMMISSIONER RISHEL: could I ask Mr. Fiedler to join us up here? Mr. Fiedler is well versed in where the staff is going with this and I know he's waited with bated breath to address the Commission regarding his expertise with regard to signage here. MR. FIEDLER: Good evening, Commissioners. Question again, we did quite a bit of extensive research looking around the country at different locations of what is being done with these signs as they've evolved, and really took it from a traffic safety standpoint of what are some reasonable restrictions that might be placed on the signs to not impact traffic safety on the roads that they're located on. And the restrictions that you sec in the recommendation are essentially the restrictions that we recommended to the Planning Department to move forward on this to allow the signs to be built in the City. COMMISSIONER RISHEL: Any further questions, Commissioners, of Mr. Fiedler? COMMISSIONER POWELL: I have a question, sir, but not of Mr. Fiedler. COMMISSIONER RISHEL: Mr. Fiedler, why don't you stay here just in case we need a reference here. Commissioner Powell. PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 209 - Page 212 CondenscltTM 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 213 COMMISSIONER POWELL: I'd like to ask the lady from the car agency, if she wouldn't mind, if that's okay with you, Mr. Chairman. COMMISSIONER RISHEL: MS. Lewis. COMMISSIONER POWELL: MS. Lewis, if she wouldn't mind coming down so I could ask her a question. I haven't been betwixt and between on an item like this in a long time. Are you aware of the restrictions in Item 5 here? Have you read them? MS. LEWIS: NO, sir, I wasn't even aware of this meeting until about 4:00 o'clock this afternoon. COMMISSIONER POWELL: Thank you. That's all I needed. You've helped me a lot. Thank you very much. COMMISSIONER RISHEL: Thank you, Ms. Lewis. COMMISSIONER POWELL: Now I'm ready to lllOVe. COMMISSIONER RISHEL: Mr. Reichhart. MR. REICHHART: If I may point out though, the other speaker who is the technical expect has reviewed these restrictions and we have even incorporated some of her, you know, suggestions, if you would, for clarification and such. So with the work of our Engineering Department and the technical expertise that we knew of is where we got this docmnentation. Page 214 COMMISSIONER POWELL: I understand. Now I would like, if I may, sir. COMMISSIONER RISHEL: YOU have the floor, Mr. Powell. COMMISSIONER POWELL: Thank you very much. I would move to approve and -- COMMISSIONER RISHEL: Mr. Powell, there is Page 215 1 the sign community in the City of Denton, as well as the 2 Chamber of Commerce for co~mnents on this item. 3 COMMISSIONER RISHEL: we have a motion. Is 4 there a second? 5 COMMISSIONER KEITH: second. 6 COMMISSIONER RISHEL: It'S been moved by 7 Commissioner Powell and seconded by Commissioner Keith. 8 Discussion? And I have a question myself of staff. When 9 I think of a bagged sign or a tarped sign, I think of a 10 situation that I see frequently on thc freeway where 11 perhaps a station has been closed for remodeling. They're 12 still going to own the station. They're still going to be 13 there five months from now or five years from now. But 14 they want to temporarily notify people on the freeway that 15 they're not open right now. And I appreciate that type of 16 notification. So I'm concerned on how we might been able 17 to notify people that a particular location is closed but 18 they're going to be back and they're trying to help their 19 constituents in that respect. So I think the bagging on a 20 temporary basis somehow needs to be looked at a little bit 21 more closely. 22 MR. REICHHART: The intent is not to cover 23 it with a bag or tarp sign but it's a bag or a tarp just 24 to cover the sign. The intent is what has happened when 25 businesses go out of business, what do is instead of -- Page 216 our Code required them to flip their sign face over so it's blank as opposed to throwing a bag over it and saying out of business. COMMISSIONER RISHEL: That helps me already. MR. REICHHART: SO the intent is not a traffic issue if an exit ramp was closed or something like a question from legal whether I had closed the public heating or not. COMMISSIONER POWELL: I will hush till we answer that question. COMMISSIONER RISHEL: And I don't know 8 that, but not to be able to just throw a bag over it, mark 9 on it out of business, tie it up with a piece of string, 10 and walk away from it. 11 COMMISSIONER RISHEL: If they can get up to 12 the sign to bag it, they can get up to the sign to turn whether I did or not but I will close the public hearing just to clarify that, although I think I already had, and we will go from there. So at this point in time, if no other feedback from the Cmmnission or the audience, we will close the public hearing. We just closed the public hearing. If staff needs to do any sort of smnmation, we will have a sununation and then we'll address your motion. No further conunent? Commissioner Powell. COMMISSIONER POWELL: Thank you, Mr. Chairman. I want to word this as carefully as I can. I would move that we recommend to the City Council the approval of Itmns 1, 2, 3, and 4, and that we ask staff to bring Item 5 back to us after they have suitably notified 13 14 15 16 17 18 19 2O 21 22 23 24 25 the sign over and let you know that it's not open. MR. REICHHART: YeS~ sir. COMMISSIONER RISHEL: That makes sense to me. Commissioner Mulroy. COMMISSIONER MULROY: NO. COMMISSIONER RISHEL: commissioner Keith. COMMISSIONER KEITH: Mr. Chairman, one of the few times I'm going to agree with you in your observation, although Mr. Reichhart did explain it. Understanding bureaucrats, no offense, Mr. Reichhart, they'll take a law and read it verbatim. No person shall cover a sign with bags or tarps of any material. I mean, that would eliminate anybody from achieving what you, Mr. PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 213 - Page 216 CondenseltTM 5 6 7 8 9 t0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 217 Chairman, just described. I would reconunend a motion to Mr. Powell's motion that we vote individually on each one of these portions up or down and do like what he suggested on No. 5. And then recommend on No. 4 that we have a rewording or something on that to accommodate your observation. I may need a little help here. COMMISSIONER RISHEL: Bat, Mr. Keith, you made the second and so we have a motion on the floor. Ms. Page 219 1 seconded. Please, vote. Motion carries 7-0. 2 COMMISSIONER POWELL: Mr. Chairman, I would 3 move to recommend approval of Item No. 3 to the City 4 Council. 5 COMMISSIONER KEITH: second. 6 COMMISSIONER RISHEL: It'S passed my 7 bedtime. Moved by Commissioner Powell, seconded by 8 Conunissioner Keith. Please, vote. Motion carries 7-0. 9 COMMISSIONER POWELL: Mr. Chairman, I would Palumbo may want to clarify. MS. PALUMBO: Right. We have a motion. COMMISSIONER KEITH: well, is it okay if I withdrew my second? MS. PALUMBO: well, we have a motion and a second. COMMISSIONER KEITH: what if I withdrew my second? MS. PALUMBO: unless the proponent of the motion wants to accept a friendly amendment. COMMISSIONER RISHEL: commissioner Powell. COMMISSIONER POWELL: Mr. Chairman, I would be pleased to accept the friendly amendment to vote on these individually. COMMISSIONER RISHEL: SO the original motion from Mr. Powell for 1 through 5 or 1 through 4 has 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 move to amend Item 4 to say that no person shall cover signs with bags or tarps of any material for a period of longer than 15 days, and move approval of that amended item to the City Council. COMMISSIONER RISHEL: It moved it along. City Council may do what they want to with it. They've heard our discussion at this point. COMMISSIONER KEITH: Okay. I'll second. COMMISSIONER RISHEL: Thank you, Commissioners. Commissioner Roy, a question? COMMISSIONER ROY: I, just for the record, wish to express an opinion. I have no problem with the way it's written, Item 4, and I'll be voting against that proposal. COMMISSIONER RISHEL: I have no problem with the way it's written either but I think that City Page 218 1 been withdrawn at this point in time. 2 COMMISSIONER POWELL: Yes. 3 COMMISSIONER RISHEL: And so has the 4 second. Okay. Do I hear a motion? Maybe Mr. Keith 5 would like to restate his motion. 6 MS. PALUMBO: The motion has been amended 7 to vote on them individually. 8 COMMISSIONER KEITH: I'll second that, as 9 well. 10 COMMISSIONER RISHEL: That's fine. So do 11 you want to put forth Item No. 1 ? 12 COMMISSIONER POWELL: I would move to 13 approve Item No. 1 and recommend it to the City Council, 14 recommend approval of Item No. 1 to the City Council. 15 COMMISSIONER RISHEL: And you confirm your 16 second? 17 COMMISSIONER KEITH: Yes, sir. 18 COMMISSIONER RISHEL: okay. It's been 19 moved and seconded. Please, vote. Thank you, 20 Commissioners. Motion carries 7-0. 21 COMMISSIONER POWELL: Mr. Chairman, I would 22 move the approval of the recommendation of approval of 23 Item No. 2. 24 COMMISSIONER KEITH: second. 25 COMMISSIONER RISHEL: It'S been moved and Page 220 1 Council does read our minutes and has a discussion there 2 and at least it moves it forward and gets it out of this 3 committee. 4 COMMISSIONER POWELL: will there be time 5 for a short discussion here, Mr. Chairman? 6 COMMISSIONER RISHEL: Sure. Please. 7 COMMISSIONER POWELL: Thank you very much. 8 My point was here that if they're going to walk away from 9 it, they're going to close the place up and cover it up 10 with an insufficient tarp and walk away, that's going to 11 be more than 15 days, and that's what we're against. But 12 I can see a lot of reasons why somebody would want to 13 temporarily cover a sign up. And that that's my point. I 14 hadtoput anumber on it. I just picked 15 daysout of 15 air. 16 COMMISSIONER RISHEL: I appreciate that 17 effort. Mr. Reichhart would like to comment. 18 MR. REICHHART: It'S been our experience 19 that there are much better ways to temporarily cover up a 20 sign other than using a bag or a tarp, and that's why this 21 is -- 22 COMMISSIONER RISHEL: That may blow off 23 onto some car. 24 MR. REICHHART: And that's why this is the 25 way it is. Right now it says bags and we've had people PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 217 - Page 220 Condenselt m Page 221 1 take a tarp and throw it over a sign, throw a piece of 2 string around it, and that's why we want more, a sturdier 3 material used to cover the sign than a flexible bag, tarp, 4 cloth, that type of material. And I just wanted to point 5 that out. 6 COMMISSIONER POWELL: I appreciate that, 7 Mr. Reichhart. And based on what you've just said, I'll 8 remove my last motion, if I can pull it, Mr. Chairman. It 9 haven't been voted on. 10 COMMISSIONER RISHEL: YOU have the motion. 11 COMMISSIONER POWELL: If I may, if I can 12 get the seconder to pull the second, I would -- 13 COMMISSIONER KEITH: Remove the second. 14 COMMISSIONER POWELL: I will try it again 15 then. I will move that we recommend to the City Council 16 approval of Item 4. 17 COMMISSIONER KEITH: second. 18 COMMISSIONER RISHEL: It's been moved and 19 seconded. Any further discussion? Please, vote. I bet 20 that brings us to Item No. 5. 21 COMMISSIONER POWELL: Mr. Chairman, again 22 if I may, I would move that we ask staff to bring this 23 back to -- 24 COMMISSIONER RISHEL: EXcuse me. I didn't 25 finish my vote here. 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 1 2 3 4 5 6 7 8 9 l0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 223 most part, would be acceptable. I'm just trying to facilitate what a good citizen in the community is trying to move in a certain direction. COMMISSIONER POWELL: we're discussing without a second but if it's okay, I'll discuss. COMMISSIONER RISHEL: Mr. Reichhart has a comment, also. MR. REICmtnRX: If the intent is to notify local sign businesses and the Chamber of Commerce on this item, and we can readvertise if we had to, but we can have that done by our next meeting because we do have three weeks. COMMISSIONER POWELL: The next meeting is fine then. That's fine. I'm not trying to delay this interminably. I just have a lot of experience working on the sign ordinance in this room and I find that you get a totally different picture of something when you've had a professional get up there and talk to you about it. And we haven't had that. And I'm worried about these restrictions. I'm not worded about the sign. I just think some of these restrictions may be overly complicated and not necessary. And with all due respect, Mr. Chairman, it's difficult to change an ordinance once it's in place, and this way we don't have to do that. I'm still looking for a second. COMMISSIONER POWELL: I apologize. I'm just trying to go home. COMMISSIONER RISI-IEL: My fault. I spoke too soon. Motion carries 7-0. Thank you. COMMISSIONER POWELL: Mr. Chairman, if I may. COMMISSIONER RISHEL: YOU may. Page 222 Page 224 COMMISSIONER KEITH: second. COMMISSIONER RISHEL: It has been moved and seconded. COMMISSIONER POWELL: oh, okay. COMMISSIONER RISHEL: commissioner Roy. COMMISSIONER ROY: I'm sorry, i was requesting to speak before the second. COMMISSIONER POWELL: I would move that we ask staff to bring Item 5 back to us in the second meeting of next month. I don't have a date. And between now and then, notify thc Chamber of Commerce and specifically the sign colmnunity, I mean, people who build and service signs in the Denton area so that we can have input here from professionals. COMMISSIONER RISHEL: There's not a second on that yet. And let me make the comment that being there already are some restrictions that have been looked at, at least looked at, and we have a client or a potential person in this community that would like to proceed with a sign and the manufacturing process and everything else that goes along with that, it seems to me that the restrictions that we've set forth are just a safeguard and those could be amended at some future time. And, as I say, we have someone within the community that would like to proceed with some sort of signage that we feel, for the 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER MULROY: Me, tOO. COMMISSIONER ROY: SO I don't understand. COMMISSIONER RISHEL: Let me get clarification from counsel. MS. PALUMBO: Did you not recognize him in order? COMMISSIONER RISHEL: I probably did not recognize him in order. MS. PALUMBO: Okay. Can you hold your second? COMMISSIONER KEITH: Be happy to. COMMISSIONER RISHEL: Commissioner Roy. COMMISSIONER ROY: I would just like to talk about one restriction. Item K talks about variable message signs prohibited within all single-family districts. Fine, but I would like to explore the possibility that variable message signs are prohibited from vision from single-family residential districts. I PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 221 - Page 224 CondcnscItTM 16 17 18 19 20 21 22 23 24 25 Page 225 1 don't want to look out my window and I'm sure no one else 2 in any of the other neighborhoods want to look out and 3 look at one of these sitting in your backyard having a 4 barbecue. Now, I don't know how practical that is. 5 COMMISSIONER RISHEL: If your house is on a 6 hill. 7 COMMISSIONER ROY: But, I mean, this is -- 8 you know, I look at perhaps this is in Corinth but I look 9 at the golf course there, Oakmont. And as you're playing 10 golf there, all you see, you look out in the distance and 11 all you see are big billboards and it's very unattractive. 12 So, anyway, that's the kind of thing I'd like to have an 13 opportunity to discuss. 14 COMMISSIONER RISHEL: commissioner Mulroy. 15 COMMISSIONER MULROY: YeS. A question, a comment. Larry, what is the rationale for having to expedite this for the car dealership? Have they already built their facility and they already have advertising in place? MR. REICHHART: Yes. COMMISSIONER MULROY: SO this is just an add on? MR. REICHHART: Yes. COMMISSIONER MULROY: okay. So we're not depriving anybody from what they have right now? Page 226 1 MR. REICHHART: NO. 2 COMMISSIONER MULROY: okay. My comment is 3 this whole deal should have been a workshop item. And I 4 would like my fellow Commissioners to relook at their 5 motion and maybe shape it that we will bring this iteln 6 back to a workshop and they can pursue the other areas 7 that were suggested. But this is really a workshop itmn. 8 COMMISSIONER RISHEL: we don't yet have a 9 motion with a second. 10 COMMISSIONER MULROY: okay. 11 COMMISSIONER POWELL: I would be pleased to 12 bend my motion and ask Mr. Mulroy to word his comments 13 into a motion which I believe I'd seconded. 14 COMMISSIONER MULROY: well, I will move 15 that Item No. 5 be scheduled for a workshop at a time that 16 will have allowed for staff to have notified the pertinent 17 parties throughout the conununity and have received 18 meaningful response from them and then schedule for a 19 workshop for us. 20 COMMISSIONER POWELL: I would like to 21 second that, Mr. Chairman, if I may. A conunent to Mr. Roy 22 that this is -- that your question was exactly why I 23 wanted to get more input on it. 24 COMMISSIONER RISHEL: Any further comments 25 or questions? We have a motion on the floor regarding 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 Page 227 Item No. 14, motion from Commissioner Mulroy and a second from Comnfissioner Powell. Any further discussion? Seeing no further discussion, please vote. Motion carries %0. Thank you, Commissioners. Any further comments, Mr. Reich_hart? MR. REICHHART: NO, sir. COMMISSIONER RISHEL: seeing no further conunents, we are adjourned. PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 225 - Page 227 Agenda 02-021 06/18/02 #45 & 46 AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET June 18, 2002 Legal Department Herb Prouty, City Attorney SUBJECT: Hold a public hearing to receive public comments and evidence on TXU Gas Distribution's request to change rates in he North Texas Metroplex Distribution System including the City of Denton, Texas. Consider and adopt a resolution denying TXU Gas Distribution's request to change rates in the North Texas Metroplex Distribution System as recommended by the coalition of cities' consultants and counsel; requiring prompt reimbursement of cities' rate case expenses; and providing for an effective date. BACKGROUND: On March 1, 2002, TXU Gas Distribution filed with the City of Demon a Statement of Intent to change gas raes in all municipalities within the North Texas Metroplex Distribution System effective April 5, 2002. The North Texas Metroplex Distribution System consists of 107 cities. TXU seeks an annual increase of $33,853,710. Although TXU said the overall increase would be about 8%, it actually amounts to an overall 22.92% increase without the cost of gas included. This includes a base rate increase of 24.22% for all residential customers. The increase to Demon's residemial and commercial customers would be$1,207,538 annually with a slightly greater percentage increase to residential and commercial customers of 33.4% and 24.8% respectively. On the 26th day of March, 2002, the City Council enacted Resolution No. 2003010 which suspended the effective date of the proposed new rates for 90 days to give the cities time to evaluate the reasonableness of existing rates and the merits of TXU Gas Distribution's proposed changes. The North Texas Metroplex Distribution System cities met in Arlington and formed a Steering Committee who hired Diversified Utility Consultants, tnc. (DUCt) and attorney Geoffrey Gay to evaluate and investigate TXU Gas Distribution's application for a change in rates. Demon also hired the Law Offices of Jim Boyle to review the consultants' recommendations. On May 28, 2002, DUCt issued its report to the cities regarding TXU Gas Distribution's proposed consolidation of systems and increase in revenue requirements for the Metroplex. A copy of that report is attached. On May 29, the Steering Committee met in Arlington with DUCt and Council to discuss the consultants' report. DUCt, after investigating the rate increase, recommends a $3,204,932 decrease in the revenue requiremem, which it feels is supported by the evidence and basic rate makhg rules, regulations, and practices of cities and the Railroad Commission of Texas. At the meeting in Arlington, the cities accepted DUCt's recommendations but requested Geoffrey Gay--the attorney hired by the Steering Committee to assist in the investigation of TXU Gas Distribution's application~to attempt to negotiate the matter with TXU officials. At this time, all attempts at negotiating a settlement in this matter have been unsuccessful. S:\Our D ocmm ent s~Mis cellan eous\02\ag en da in fbrmarion sheer Deny gas rares, public hearing, doc OPTIONS AND RECOMMENDATIONS: Pass the Resolution denying TXU Gas Distribution's request to change rates in the North Texas Metroplex Distribution System. Decline to pass the Resolution and allow the rates requested by TXU Gas Distribution to go into effect on July 5, 2002. Pass the Resolution setting rates in the North Texas Metroplex Distribution System different than those requested by TXU Gas Distribution. We recommend that City Council choose Option 1 by passing the Resolution denying TXU Gas Distribution's request to change rates in the North Texa; Metroplex Distribution System. This recommendation is in keeping with DUCt's and Geoffrey Gay's recommendation and is consistent with the Steering Committee of the North Texas Metroplex Distribution System cities' desires. Jim Boyle, the attorney who Denton individually hired to review the consultant's recommendation concurs in the DUCt's recommendation. Additional reasons for the recommendation will be found in the City Attorney's status report for June 14h. FISCAL INFORMATION: Denial of this rate increase will save Denton gas ratepayers $1,207,538 annually, TXU Gas Distribution will most likely appeal any decision to deny the requested increase in gas rates to the Texas Railroad Commission. Most of the costs of this rate case both at this level and in the event TXU appeals this matter to the Railroad Commission are reimbursable to the cities under the Gas Utility Regulatory Act. Respectfully submitted, Herb Prouty, City Attorn'eS~ Page 2 S:\Onr DocmmentskMiscellaneous\02\agenda infbrmarion sheer Deny gas rares, public hearing, doc May 28, 2002 Steering Committee for TXU Gas Company's North Texas Metroplex System Re: Report Addressing Summary_ of Finflin~s and Conclusions Re~ardinl! TXU Gas Distribution Company's Statement of Intent to Increas~ Rates. Dear Cities; This report contains Diversified Utility Consultants, Inc.'s ("DUCI") review, analysis, and investigation regarding the proposed level of retail gas rates filed by TXU Gas Company ("TXU Gas" or "Company"). Presented in this report are discussions of DUCI's analysis and recommended adjustments to the Company's proposed rate increase in the 109 cities ("Cities") that comprise the North Texas Metroplex Distribution System ("N TX Metro"). On March 1, 2002, TXU Gas filed a request for an annual rate increase in the Cities, for the lq TX Metro in the mount of $33,849,096. This mount is based on a test year ended September 30, 2001. The Company states that its overall requested increase is 8.01%, with an increase of 9.07% for residential customers. A customer's bill is made up of two components, an operational cost component (base rate portion) and a cost of gas component. As is discussed in the body of this report, the Cities have jurisdiction only over the operational portion of costs, not gas costs. Therefore, when the gas component is removed from the Company's requested increase, TXU Gas is actually requesting the Cities to approve a 23% overall base rate increase, with a base rate increase to residential customers of 24%. Presented herein are what DUCI believes to be appropriate and necessary adjustments to the Company's proposed revenue requirement and rate design requests. The recommended adjustments set forth in this report result in an annual reduction of $3,204,932 to current rates, or a reduction of $37,054,028 to the Company's requested annual increase of $33,849,096. Based on DUCI's adjusted revenue requirement and rate design, a residential customer using 6 Mcf in a month would be billed $37.17, compared to $40.67 per month if the Company's request was adopted. That represents a $3.50, or 8.6%, reduction per month on a customer's total bill including the cost of gas. In addition to the rate increase TXU Gas is requesting, it also proposes to eliminate the Weather Normalization Adjustment Clause ("WNC"), eliminate the Cost of Service Adjustment, eliminate the Plant Adjustment Clause, initiate a surcharge for uncollectible expenses, significantly change the rate design for the residential and commercial classes, and initiate a miscellaneous service charge for the temporary discontinuance of service, it is interesting to note that the Raikoad Commission of Texas ("RCT") for the first time recently allowed the Company to implement its request for a WNC in Docket No. 9145, the last rate case for the City of Dallas. Now, after incurring rate case expenses to seek and implement the WNC in other cities, the Company elects to reject it. Presented herein is what DUCI believes are necessary and appropriate adjustments to the Company's proposed revenue requirement based on the Iimited information obtained at the present time. The information obtained is limited due in part to TXU Gas' failure to provide updated data past test year-end on a majority of issues (12 months ended September 30, 2001), even though it is now 8 months past the end of the test year. Similarly, the Company also refused to provide data prior to January 1999. TXU Gas has taken an aggressive position in protecting its books and records, and avoided or delayed providing even some of the most basic data requested. This issue is further discussed in the body of the report. DUCI began the review process by duplicating TXU Gas' proposed revenue requirement. Next, DUCI analyzed the individual components of the request to test whether a reasonable level of costs and expenses has been requested. Data relied on for this analysis consists of responses to requests for information to the Company, RCT filings, the Texas Utility Code, and past TXU Gas proceedings. Analyzing how these costs are allocated fi.om TXU Gas' parent company and its affiliates, and the mount allocable to the N TX Metro is an integral part of the evaluation of the Company's rate request. DUCI's analysis results in an overall base rate reduction of $3,204,932, or 2.2%, compared to present rates, rather than the 23% overall base rate increase requested by the Company. The overall reduction reflects an increase to the residential class of $3,474,577, with a decrease in commercial and industrial customer class revenue requirements of $6,051,755 and $627,646, respectively. In order to implement DUCI's recommendations, the Cities may: (1) deny TXU Gas' request and retain the existing rate, (2) implement a set percentage change for each base rate component of each rate; or (3) adopt the same average N TX Metro rate for each residential and cormnercial customer no matter' which city the customer is located in. The first option recognizes the lack of complete data provided by the Company and the relatively small level of the rate change. As discussed later, DUCI does .not recommend that the City make a determination on the reasonableness of rates charged to industrial customers. DUCI's recommendations are summarized by major category as follows: COMPANY DUCI DESCRIPTION DIFFERENCE REQUEST RECOMMENDED ... Gas Purchases .... $261,285,153 ... $261,285,153 $0 O&M Expenses $..77,208,403 $ 64,5.6..6.:091 $12,642,312 Taxes Other than....FI.T $ 34,352,839 ...... $ 31,797,573 $ 2,554,905 D~preeiation/Amorfization $ 24,901,79.5 $ 23,767,573 $ 1,134,222 Int. on Cust Deposits/AdvanceS.. ..$. 638,634 $ 638,634 $0 FIT .... $ 15,017,592 $ 11,036,112 $ 3,981,480 Return $ 42,874.3,.93. $ 35,480,2.1,7 $ 7,394,176 Total .....$456,278,809 $428,57.1.,.714 $27,707,095 Revenue Adjustment $....9.~346,803 ~ Adjusted Total ...... $37.054,02~ A discussion of each of the issues raised and changes recommended by DUCI is presented in the balance of this report and the overall impact is set forth on Schedule 2. We invite the Mayors, City Council Members, City Managers, and City Staff to review in detail the various sections of this report and the various recommendations and adjustments made to the Company's proposed cost of service. We appreciate the opportunity to provide this service to the Cities, and are prepared to answer any questions that may arise from your review of this report. If the Cities desire any additional analysis or assistance, we will be available to assist you, your staff or your legal council to the extent required. Sincerely, Diversified Utility Consultants, Inc. iii TABLE OF CONTENTS TRANSMITTAL LETTER ........................................................................ i TABLE OF CONTENTS .......................................................................................... 1 SECTION I: EXECUTIVE SUMMARY ....................................................................... 3 A. Introduction ............................................................................................................... 3 B. Company Description / Rate History_ ............................................................................ 4 C. Discovery Issues ............................................................................................................ 5 D. Consultant Recommended Rate Change ........................................................................ 7 E. Rate Review Standards and Process .............................................................................. 7 1. Evaluation Standard & Guidelines ................................................................................................ 7 2. Anal,'fsis ProceSs ............................................................................................................................... 8 SECTION II: COMPANY PROPOSED RATE INCREASE ...................................... 9 A. Company's Prooosed Increase ...................................................................................... 9 B. Recent Rate Filings in the N TX Metro ........................................................................ 9 I. Investment Levels .......................................................................................................................... 10 2. Expense Increases .......................................................................................................................... 11 3. Sales and Customer levels - Billing Determinants ...................................................................... 12 SECTION Ill: RATES TO INDUSTRIAL AND TRANSPORT CUSTOMERS .... 13 SECTION IV: ANALYSIS OF ISSUES ...................................................................... 15 SECTION V: REVENUES ........................................................................................... 17 A. Introduction ............................................................................................................. 17 B. Weather Normalized Revenues ................................................................................... 18 C. Customer Growth ........................................................................................................ 20 SECTION VI: ALLOCATION .................................................................................... 22 A. Cost Allocation in the System ..................................................................................... 22 B. Customer Classif~cation .............................................................................................. 23 SECTION VII: RETURN ............................................................................................. 25 SECTION VIII: EXPENSES ........................................................................................ 28 A. Payroll E,XPenses .................................................................................... : .................... 28 1. Up. dated Salary. ............................................................................................................................... 28 2. Bonuse~ and Incentives .................................................................................................................. 29 3. Overtime Ad|ustment .................................................................................................................... 29 B. Benefits ........ '. .................................................................................................... 29 C. Amortization of Merger Related Costs ....................................................................... 30 D. Normalization of Expenses ......................................................................................... 30 E. Labor and Growth Adiustments .................................................................................. 32 F. Uncotlectibles ............................................................................................................. 33 G. Depreciation Expense ................................................................................................. 34 H. Amortization Expense - Safety Compliance Program ............................................... 35 SECTION IX: RATE BASE .............................................................................. .'. ......... 36 A. Safety Compliance Program ....................................................................................... 36 B. Cash Working Capital ("CWC") ................................................................................. 36 C. Preoavments ............................................................................................................. 37 D. Relocation ............................................................................................................. 37 E. Construction Work in Process ("CWIP") .................................................................... 37 SECTION X: FEDERAL INCOME TAXES ............................................................... 39 SECTION XI: TAXES OTHER THAN FIT ........................ , ....................................... 40 A. Revenue Related Taxes ............................................................................................... 40 B. Prop..e..rty Taxes ............................................................................................................. 40 C. Payroll Taxes ............................................................................................................. 40 SECTION XIII: RATE DESIGN ................................................................................. 41 A. Residential Average Rate Alternative ......................................................................... 42 B. Comanercial ............................................................................................................. 43 SECTION I: EXECUTIVE SUMMARY A. Introduction TXU Gas Distribution, a division of TXU Gas Company ("TXU Gas" or "Company"), filed a Statement of Intent on March 1, 2002 to increase rates over $33.8 million annually in the North Texas Metroplex Distribution System ("N TX Metro"). The N TX Metro consists of 107 cities. A list of the Cities included in the N TX Metro is provided in Schedule 1 of this report. The Company's proposed increase varies by city and by customer class depending on the particular community and specific class. The following table provides information for the Company's current and proposed revenues and rate change for the residential class, commercial class, indUstrial class, and service charge for N TX Metro. TABLE 1~ NORTH TEXAS METROPLEX SYSTEM PROPOSED ANNUAL RATE INCREASE FOR THE TEST YEAR ENDED SEPTEMBER 30, 2001 BY CUSTOMER CLASS (A). re) (C) (e) (B Residential $273~385,183 ~298,173,541 $24,988,358 9.07% ..... 24.22% Commercial $I30,8,58,349 $137,257,322 $6,398,973 _4.89% ...20.25% Industrial $1.4.,255,5.07 $16.,917,272 $2,6.61,765 18.6.7.% 27.05% Subtotal ...$418,499,039 $452,3,48,135 $33,84,9,096 8.09% 23.54% Service Charges $3,926,080 $3,930,69..4_ $4,6 I~... 0.12% 0.12% Total $422~425,119 $456.278.829 $33.853.710 8.01% 22-92% Table 1 above shows the overall N TX Metro base rate increase of $33,853,710, or 23% per year. TXU Gas is requesting a base rate increase of 24.22% for residential customers. To enable the N TX Metro Cities ("Cities") to evaluate the actual proposed increase over which ihey have jurisdiction, base rates percentage increases (total rates excluding the cost of gas) are presented in Column F. The Cities do not regulate the gas cost portion of customers' bills. Gas costs are exclusively regulated by the Railroad Commission of Texas ("RCT"). As can be seen, the rate increase request before the Cities is a substantial annual percentage increase in this case. Company Schedule A. 3 B. Company Description / Rate History TXU Gas provides gas to over 1.4 million customers in approximately 560 cities and towns in Texas. The Company has over 25,000 miles of distribution mains. In calendar year 2000, TXU Gas' net utility plant was $600 million with annual revenues of approximately $960 million. TXU Gas is regulated at the city level with appellant jurisdiction at the RCT. On or about August 5, i997, Texas Utilities Company ("TXU") merged with Enserch/Lone Star Gas Company ("Enserch"). Enserch focused on natural gas business operations including gathering, processing, transmission, and distribution of natural gas. Lone Star Gas Company ("LSGC") was a subsidiary of Enserch. LSGC operated the natural gas distribution business. It is the largest gas distribution company in Texas and one of the largest in the United States. Beginning in 2000, TXU Gas assigned many of its cities to new distribution systems where cities are combined for rate purposes. In this current filing, TXU Gas has again reassigned cities into this new distribution system for rate purposes. A majority of these cities experienced a rate increase approximately 6 months ago based on a settlement 'agreement. The assignment of cities to a region does not appear to have anything to do with shared services or grouping by location. Rather, TXU Gas has assigned certain cities to distribution systems based on unknown and arbitrary Company criteria for ratemaking purposes. At the time of the merger/purchase of Enserch by TXU, numerous promises were made regarding future rates and cost decreases. Specifically, TXU projected over $850 million of synergy savings would accrue as a result of the combination of the gas and electric companies. TXU estimated that a majority of the gas related savings would inure to the benefit of distribution customers and would be passed on to future customers through rates. Despite these past promises, the Company has been on a campaign of frequent rate increase filings across Texas. For many of the cities, this is the second major, rate increase request since the merger. Given that most of the promised merger savings were to accrue during the five years following the merger, it appears that such savings may not have materialized as previously indicated, or may not be being passed to customers through rates. Even more troubling is that the gas operations, when owned by Enserch, did not require frequent rate increases, but after TXU took over operations, not only did promises of savings not materialize, but frequent rate adjustments became necessary. It is our understanding that TXU Gas will be yet again requesting another rate increase in the Dallas area next year. DUCI has examined the gas operations relative to other TXU activities in an effort to determine why TXU seems to require major and frequent gas rate changes, while the remainder of TXU appears profitable. This issue is addressed in Section II of this report. C. Discovery Issues A rate request such as the current TXU Gas filing requires a review of supporting detail to ensure that the Company's requested actual and estimated expenses are correctly included in rates for customers. For example, TXU corporate affiliates, such as the business services division, allocate millions of dollars in joint cOsts to gas, electric and other corporate activities. Analyzing how these and other costs are allocated to TXU Gas, and the amount allocable to N TX Metro customers, is an integral part of the evaluation of the Company's rate request. Despite numerous attempts to access Company data, TXU Gas has taken an aggressive position in protecting its books and records and avoided and/or delayed providing the most basic data requested. Some examples of TXU Gas' aggressive posture in this proceeding, which delayed the data gathering process, can be found in the following examples of objection to basic · data requests: Request No. 1-2: Y2K- Please state the total amount of Y2K expense the Company has included in its revenue requirement. Is this an amortization or actual expense incurred during the test year? Objection: TXU objects to this request because it is ambiguous and vague in that "Y2K expense" is not defined. Please clarify the meaning of"Y2K expense." 5 lull I I II~l I I Request No. 1-5: Payroll- Please provide employee count by month from January I, 2000 through the most current month available, and the annual count for calendar year 2000 and 200t for the North Texas Metroplex Distribution System. .Objection: TXU objects to this request because it is ambiguous and vague in that "employee count" is not defined. Please clarify whether "employee count" refers to (1) the total number of persons employed for each time period, (2) the number of persons employed at the end of each time period, (3) the average number of persons employed during the time period, or (4) some other meaning. Request No. 1-24: Expenses- Please provide the Company's direct expenses by month, by year, for the past 3 years by account number. Include a brief description of each expense, balance at December 31 of each year. Obiection: · TXU objects to this request because it is vague and ambiguous to the extent "direct expenses" are not defined. Please clarify the meaning of "direct expenses." Obviously, the Company's claimed confusion with regard to the above three questions could have been resolved with a simple telephone call. Instead, the Company elected to formally object with what can only be described as frivolous arguments. DUCI has attempted to gather data from other public sources such as RCT filings and other rate case filing by TXU Gas in an effort to deal with the Company's failure to provide some of the most basic data to review its request. DUCI continues in its attempts to acquire the data necessary to review other areas of the Company's request. It may be that further adjustments are necessary in this case, but until all the data can be evaluated, some areas Of expense and investment are not able to be verified. · 6 D. Consultant Recommended Rate Chan~e DUCI recommends that TXU Gas' $33.8 million annual rate increase be denied. DUCI's analysis indicates that an annual rate reduction of $3,204,932 be implemented. Schedule 2 sets forth DUCI's recommended revenue requirement. In past cases involving TXId Gas, parties have attempted to resolve rate differences through settlement negotiations. A settlement process avoids the litigation process involved in the appeal of such matters to the RCT, as occurred in the last Dallas Distribution System case. Recent experience with TXU Gas, and its aggressive position in discovery for this case, indicates TXU Gas may not be willing to negotiate such matters. For example, in a recent transcribed rate hearing in Denton, Texas, a TXU Gas representative told the Denton City Council: "Wall, we're not in the business of negotiating rates. That's one thing I need to apparently put to rest. We're a monopoly. If there are no competitive alternatives." (Emphasis added). Despite the Company's aggressive posture to basic requests for supporting data, DUCI believes that the recommended $3,204,932 decrease in revenue requirement is supported by the evidence and basic ratemaking rules, regulations, and practices of cities and the RCT. E. Rate Review Standards and Process 1. Evaluation Standard & Guidelines The Company's rate filing and proposed rate increase is evaluated based on the standards set forth in the Texas Utilities Code. The goal is to determine whether the proposed Company rates are fair, just, and reasonable and that no rate is unreasonable, preferential, prejudicial, or discriminatory. In evaluating the overall revenues requested by the Company, DUCI recommends that TXU Gas' overall revenues be set at a level that will permit TXU Gas an opportunity to recover its reasonable and necessary ex. penses and earn a reasonable return on the comPany's invested capital used and useful in providing service to the customer. Basic ratemaking principles established by the RCT, RCT roles, along with requirements of the Utilities Code (herein after GURA) are employed in evaluating the Company's request. 2. Analysis Process In the process of analYZing the Company's earning position, several factors are taken into account. The ultimate goal is to determine whether the normalized overall rate of return earned by the Company is at a "just and reasonable" level. The multi-step process first analyzes the various components of the following formula in order to determine which side of the equation is greater and by what magnitude. Base Rate Revenue2 = O&M Expenses + Taxes +'Depreciation + Return Then the results of the above equation are'compared to the results of a separate analysis, which attempts to determine an appropriate rate of return from the following formula: Return = Weighted Cost of Capital x Adjusted Rate Base In other words, there are four main areas that require investigation: (1) the level of base rate revenues; (2) the level of base rate expenses, including the allocation of corporate joint and common expenses; (3) the overall level of investment associated with jurisdictional retail service; and '(4) the appropriate cost and weighting of capital (i.e., long-term debt, preferred and common stock). This report enumerates the various adjustments DUCI recommends to the claimed cost as reported in TXU Gas' rate request for the N TX Metro. 2 Total revenues less fuel or gas revenues where total revenues equals the regulated or tariffprice times units of gas sold. ~ Total operating and maintenance expenses less gas expense. 8 SECTION II: COMPANY PROPOSED RATE INCREASE The starting point in DUCI's analysis is a review of the TXU Gas filed rate request. The first step of DUCI's analysis is the duplication of the Company's rate analysis. Included in Schedule 3 is DUCI's duplication of the Company's filed ease. A. _C_ompan¥'s Proposed Increase TXTI Gas claims that a $33,853,710 annual rate increase is necessary to recover costs of operations in the N TX Metro. The class breakdown of the Company proposed annual increase is shown in Table 1 discussed above. This $33.8 million rate increase and class allocation has been duplicated in Schedule 3. Our review, as discussed below, indicates that TXU Gas' rate request understates present revenues, overstates expense requirements, overstates investment, and overstates the Company's capital costs. The following pages discuss each of these areas. B. Recent Rate Filings in the N TX Metro A factor that is important in evaluating the Company's claimed need for over a 23% base rate increase is that TXU Gas' rates, costs, investment levels and revenues were just recently reviewed in their entirety in a full and complete rate review before many of the Cities in the N TX Metro. For example, about 40 of the cities (formerly Northwest Metro Mid-Cities System) approved rate increases allowing about 70% of TXU Gas' request just six month ago. In other words, in February 2001, TXU Gas requested about a $7.5 million increase in 40 of these same cities.4 That case was settled around June 2001 for about 70% of the rate request or about $5.1 million. Now, TXU Gas is requesting an additional increase of over $15 million annually for these same cities? It strains credibility to accept that for 40 of the 107 cities, TXU Gas claimed in April 2001 that a $7.5 million annual increase would allow the Company to recover its costs and earn a return, yet now claims substantially more is needed. Of the 109 cities in this case, about 100 cities have had rate increases within the past 18 months of the current rate request. Schedule 5 provides a list of cities along with a comparison of the current and previous rate case. 4 A list of the former Northwest Metro Mid-Cities now included in the North Texas Metroplex Distribution System along with a rate request comparison is included in Schedule 4. s See, Schedule 4. 9 Now, in March 2002, TXU Gas is claiming that an additional $33.8 million annual increase is necessary for TXU Gas to recover its costs and earn a reasonable return. The obvious question that needs to be addressed is what set of events in the very recent past has caused this claimed need for this additional rate increase request. To address this question, DUCI has focused on three major areas: increased investment, increased expenses, and sales levels or billing determinants. The level of investment, operating expenses and sales levels will impact the need and/or level of rate adjustments required by TXU Gas. 1. Investment Levels The Company claims gross investment levels have increased $100.6 million or 24% for the N TX Metro during the December 1999 through September 2001 period. While a $100.6 million increase in gross investment is certainly a large increase in capital, further analysis reveals this investment does not explain the size or even the need for the rate request. The $100.6 million investment claim is gross investment. In other words, it does not take into account the decreases in invested capital that occurred through depreciation of capital recovered through rates over this period. When ne.~t investment is analyzed, the increase in net capital is about $57 million, not the $100.6 million as TXU Gas would have customers believefi The revenue requirement impact of a $57 million increase in rate base is about $9.25 million annually at a fixed charge rate of 16.2t8%.7 A lower return than the 9.47% requested by TXU Gas would result in an even lower fixed charge rate and thus a lower revenue requirement. The Company's claimed need for a 23% base rate annual rate increase is not explained by an increase in capital investment, especially when significant levels of the investment increases have already been recognized in the rates implemented within the past year. ~ $100.6 million less (($24,901,795/12) * 21 months) equals $57,021,859, where $24.9 million is the claimed annual depreciation expense of TXU Gas. 7 Company ROR of 9.47 % adjusted for taxes and a depreciation rate of 3.5%. 10 2,. ,,Expense Increases The Company claims that O&M expenses have increased by 5.6% since December 1999, due to line locations and customer growth. While some expenses increase with growing customer levels, e.g. postage for billing, not all expenses increase. Rather, customer growth otten leads to productivity increases; serving more customers with the same number of resources. In addition, along with customer increases are additional revenues to cover any increased costs. Thus, changes in customers do not explain O&M increases. The Company's second claim is at odds with its increased level of capital expenditures since the mid 1990s. Typically, investment or capital expenditure increases result in O&M decreases. In other words, new investment decreases the frequency required to repair lines and other investn~ent. In addition, since the TXU-Enserch merger, O&M efficiencies and other operating synergies were expected to create benefits, not require frequent rate eases. In other words, rather. than have an Enserch meter reader and a TXU electric meter reader, the combination or merger of the two companies with a 2/3 customer base overlap would, or at least should, result in meter reading, customer accounting, billing and other O&M cost savings. Attempts to determine the promised merger related savings were frustrated by TXU Gas' claims that such synergy-related productivity benefits are not tracked by the Company. Not only is the Company unable to measure merger savings, but also analysis of the most basic 'customer related costs indicates that the merger has caused costs to increase. For example, customer meter reading expenses are increasing for the gas business while the same costs are not generally increasing for TXU's electric business. Schedule 6 shows various customer related costs befOre and after the merger for the electric and gas business. The results of this analysis suggest gas costs are increasing after the merger, while the cost to serve an electric customer is not increasing. Prior to the merger, Enserch operated as a successful gas provider controlling costs and maintaining rates without frequent rate adjustments. TXU thought so highly of the Enserch assets that TXU agreed to pay a handsome premium above book value to acquire these 11 operations. Since the merger, ratepayers have faced frequent rate changes, increasing costs and claims of unprofitable gas operations. Something substantial has gone wrong with the gas operations since the merger if TXU's claims of increasing costs and falling profits are to be accepted. 3. Sales and Customer levels - Billing Determinants The last key area examined is sales and customer levels, which can impact the need for a rate increase. A substantial decline in sales or billing determinants will cause the need for a rate increase. For example, if TXU Gas' costs of operation are $I,000 per year and expected sales are 1,000 units or Mcr of gas, then the cost per Mcf is $1.00 ($1,000/1,000). However, if costs remain $1,000 and sales drop to 750 units of gas, then .rates need to increase to $1.33 per Mcf ($1,000/750) to collect the annual operating costs of $1,000. In TXU Gas' Executive Summary in this case, it claims that the customer base increased by 8% since December 1999, while the sales of gas have increased by an equivalent 8%. Moreover, the Company claims residential sales have increased by 29% in this same period. Normally, healthy growth is usually seen as an opportunity to enhance profits rather than a basis to claim a need for rate increases. In summary, increased investment in and of itself explains less than 27% of the $33.8 million annual rate increase, especially when prior rate cases already recognized a portion of the increased investment. Claimed increases in operating costs are not consistent with the merger related synergy savings experienced on the electric side of the business. Claimed increases in gas operating costs reflect a substantial departure from the pre-merger experience for the gas business. TXU's claimed cost increases and need for a rate increase is not explained by the claimed sales changes. 12 SECTION III: RATES TO INDUSTRIAL AND TRANSPORT CUSTOMERS This case includes a rate request that reflects a $2,661,765 annual proposed revenue requirement increase for the industrial/transport customers. Prior to the last 2 years, the Company had filed for rate increases that included only residential and commercial customers. This case, which includes the request for approval of an annual increase for the industrial/transport customers, is a departure or change from many previous Company rate requests before certain cities. We recommend that the Cities treat this case as a residential-commercial customer class rate case, and remove the industrial transport rate request from consideration. While regulatory authorities such as cities have jurisdiction over industrial and transport rates, the Company has failed to make any showing that existing rates for the industrial/transport customer class are not reasonable. For guidance on this issue, we refer you to Texas Utilities Code §104.003 Just and Reasonable Rates. (a) The regulatory authority shall ensure that each rate a gas utility or two or more gas utilities jointly make, demand, or receive is just and reasonable. A rate may not be unreasonably preferential, prejudicial, or discriminatory but must be sufficient, equitable, and consistent in application to each class of consumer. In establishing a gas utility's rates, the raikoad commission may treat as a single class two or more municipalities that a gas utility serves if the commission considers that treatment appropriate. A rate for a pipeline-to-pipeline transaction or to a transportation, industrial, or sLmi!.ar large volume contract customer is considered to be just and reasonable and otherwise to comply with this section and shall be approved by ~e regulatory_ authority if: (1) Neither the gas utility nor the customer had an unfair advantage during the negotiations; (2) The rate is substantially the same as the rate between the gas utility and at least two of those customers under the same or similar conditions of service; or (3) Competition does or did exist with another gas utility, or another supplier of natural gas, or a supplier of an altemative form of energy. (Emphasis added). 13 The industrial transport rates have been almost exclusively set by contract between the Company and the customers.8 The Company has presented no data, evidence, or reasonable explanation as to why the Cities should employ their regulatory authority in setting new rotes. This is especially tree given that the Company did not implement the industrial rates that it sought and received approval for in its last case with numerous cities in the N TX Metro. Therefore, the Company's request that the Cities determine the industrial rates should be denied. 8 TXU Gas admits that only one industrial customer does not have a contract in place. That one customer had a rate set by a city within the past several months. 14 SECTION IV: ANALYSIS OF ISSUES Discussed in the following pages are a number of adjustments made to the Company's request. These adjustments are necessary to ensure that customer rates and charges are just, reasonable, and not discriminatory as required by the Utilities Code. The results of DUCI's analyses indicate that the Company's proposed rate request of $33.8 million is not justified and would result in an over-collection by TXU Gas of approximately $37,054,028. DUCI's analysis suggests that on a N TX Metro basis, current rates charged by the Company are overstated and the Company is over earning. Section XII sets forth a discussion of the Cities' alternatives for rate design. Schedule 7 sets forth DUCI's recommended revenue requirement, by class. Table 3 is a listing and description of each adjustment DUCI is recommending. A "stand alone" estimated .impact is included with each adjustment. Because numerous adjustments interact with each other, the summation of the "stand alone" adjustments is not equivalent to the final cost of service recommendation. The combined impact of DUCI's recommendations results in a $3,204,932 reduction to the Company's currently authorized rates for the N TX Metro. 15 TABLE 3 REVENUE REQUIREMENT IMPACTS OF DUCI'S PROPOSED ADJUSTMENTS Return/Capital Structure $6,038,367 Present Rate ......... RevenUe Weather/Customer $4,994,1 ~ 1~ Rate Base - Relocations $3,111,023 Customer Records & Collections $2,252,940 ..O.,uts!de services ...... $2,237,934 Rate Base - Safety Compliance ...... $2,166,181 Payroll Related ...... $1,94t, 193 Rate Base - CWC $1,414,106 ~juries & Damages $.,1:4,03,330 Growth Adjustment ....... $1,327,550 Maintenance of Mains ...... $!.,301,617 Property Tax $1,087,801 Merger Related AmortiZation $1,021,850 Meter Reading $ 864,889 Rents $ 842,826 Amortization E~l~s~-'Safety Compliance ....$ 628,961 Uncolle,~.tibl.es $ 5..0,0,757 Rate B~.e 77.,Prepayments ,. $ 289,665 Rate Base- CWIP $ 97,311 16 SECTION V: REVENUES A. Introduction The Company has estimated the test year present rate revenues earned under present rates or tariffs assuming normal weather conditions as adjusted for customer growth. In other words, the Company starts with adjustments to the per books sales levels for normal weather conditions and adjusts customer levels for changes in test year growth levels. Next, the Company applies the adjusted customer levels and weather normalized sales levels to current tariffs to arrive at test year sales. The following table shows the Company's adjustments to per books sales and customer levels, and resulting test year revenues for the residential and commercial customers. TABLE 4 TEST YEAR CUSTOMER AND SALlgS ADJUSTMENTS AND PRESENT RATE REVENUES ..'._ 637,502 Customer Adjustments~ ~ ...... 5,280 1,749 I Xdjust6~ Customers~2 642,782 .. 53,206 Per Books Sales (Mcf)13 " 48,90.1,838 27,927,242 Sales Adj'~tment Custome"rs (Mcr)14 780,43.4._ 272,879 Sales Adjustment Wear.her (Mcf)~ ... (6,279,,61,6) (2,563,3.19~ 'Test Year Sales (Mcf)_ 43,402,656 25,636,802 Test Year Revenues $273,385,183 $130,858,349 As can be seen from the above table, the Company has made adjustments to the test year for customers and weather normalization. DUCI's analysis of the Company's test year weather normalization and customer growth adjustments indicates that there is a substantial understatement of test year sales. For example, analyzing normalized sales levels for the Northwest Metro Cities (a subset of the N TX Metro) that had cases just last year indicates substantial declines in weather normalized sales, yet customers are growing. Included in Schedule 8 is a comparison of customers and sales levels for Schedule J line 2, year end customers. ~o Includes public authority. n Line 1 less line 3. ~2 Schedule J, line 3. ~* Schedule J, line 4. ~4 Schedule J, tine 7. 17 each city for the two most recent rate cases. This data indicates the Company's current estimates are understated in terms of sales and resulting present rate revenues. DUCI has made three adjustments to present rate revenues for this report. First, DUCI has recalculated the weather normalized sales by city. Second DUCI has recalculated the Company's proposed year-end customer levels. Third, DUCI has adjusted test year revenues based on per books revenues adjusted to test year. All three of these adjustments are discussed in the following pages. B. Weather Normalized Revenues The Company adjusted test year sales to reflect colder than normal weather during the test year, the 12 months ended September 30, 2001. In other words, rates are developed assuming normal weather and if the selected test year is colder than normal, actual sales must be reduced to reflect sales under normal weather conditions. The impacts on heating load requirements due to temperatures are measured in heating degree days. A heating degree day (HDD) is calculated as the difference between a 65-degree base temperature and the average of the high and low temperature for a particular day. ThuS, ifa particular day had a high of 60 degrees and a low of 40 degrees (a high and low average of 50 degrees ((60 + 40)/2)), then there would be 15 HDDs, or 65 degrees less 50 degrees. If in the alternative, the high and low average temperature exceeds 65 degrees, there are no HDDs in that day.~6 The following table shows the actual and normal HDDs by month for the test year ending September 30, 2001. Schedule J, line 6. When the average high-low temperature exceeds 65 degrees, that particular day has cooling degree days. 18 T~LE $ ACTU~ ~D NO~ TEST ~ HDDs October 64 $1 13 November 458 275 183 December 785 566 219 January 6~'~ 670 4~~ February 417 , , 484 -67 March 402 286 116 ~pra 41 ,., 7s -34 , May o o ..... o June 0 0 0 July 0 ,0 0 August 0 0 0 September 3 0 3_ Total 2855~9'' 240720 448 Thus, based on National Oceanic and Atmospheric Administration ("NOAA") climatological data reports for the D/FW Airport Weather Station provided by TXI, J Gas, .the months of October, November, December, January, March, and September were colder than normal. The months of February and April were warmer than normal. The months of May through August did not experience HDDs. To adjust test year sales, TXU Gas calculated a degree day difference (actual HDDs - normal HDDs) of 510 HDDs for the test yearf This 510 HDD differential was then multiplied by the calculated weather sensitive load per HDD usage level by class by city. The weather sensitive load is calculated by subtracting the base load sales (non-weather sensitive Mcf sales) from actual test year sales. In other words, actual sales less base load results in weather sensitive load. The weather sensitive load is divided by actual HDDs to estimate actual usage per .degree day. Usage per HDD is then multiplied by the 510 HDD factor to calculate the adjustment necessary to bring actual weather sensitive load back to a normal HDD weather sensitive sales level for the test year. A review of TXU Gas' calculation indicates that test year sales have been substantially understated. For example, in recent cases where normalized sales have been calculated, the 17 TXU response to RFI Set No. 1, Question 1-71 Attachment 2. ts Id. Attachment I. 19 TXU adjusted actual HDDs to 2864. See WP/J-3, 8 of 24. 2o TXU reported normal ItDDs as 2354. See WP/J-3, 8 of 24. t~ TXU Gas adjusted actual HI)Ds of 2855 by increasing the beginning of the test year by 12 ItDDs and reducing TYE by 3 I-IDDs to reflect billing cycles, resulting in a revised actual HDD annual value of 2,864 HDDs. TXIJ Gas employed a 30-year average (1961-t990) for normal ltDDs and calculated a value of 2,354. 19 residential class normalized sales levels are substantially above what TXU Gas now claims are normalized sales. This fact is demonstrated in Schedule 8. As stated earlier, TXU Gas claims that the normalized'sales for N TX Metro residential customers have decreased by over 3,365,916 Mcfannually. Thus, in the short period since rates were set in the last cases until the test year in this case, TXU Gas asserts customer quantities have increased, but normalized sales have fallen by over 3,000,000 Mcf. Such a conclusion lacks credibility. Clearly, something is wrong in the TXU Gas analysis. The last rate cases for many of the Cities in the N TX Metro produced a weather normalized sales level that was determined appropriate. Employing the normalized sales level on a per customer basis that was most recently approved by many of the Cities is a reasonable starting point of the analysis. By employing normalized sales on a per customer basis along with TXU Gas' claimed customer levels in this case, a new and more reasonable estimate of weather normalized sales volumes and present revenues for each customer class by city can be estimated. The net result of correcting TXU Gas' calculations of weather normalized sales is an increase of present rate revenues and Mcfof $2,939,137 and 3,325,249, respectively, as shown in Schedule 9. C. Customer Growth In addition to the weather adjustment, DUCI is recommending increasing customers and associated Mcr sales resulting from customer growth for residential customers. TXU Gas has calculated customer growth to year-end levels and employed average growth in customers. In other words, TXU Gas calculates growth and divides such result by two in an' effort to compute average growth through the test year. As an alternative, DUCI has calculated growth to year-end levels. This approach is consistent with the claimed investment that is also stated at year-end levels. The results of DUCI's weather and customer adjustments are contained in Schedule 10. The final impact of this adjustment is to increase test year revenues by $2,027,897. 20 D. Revenue Ad|ustment Rather than employing test year sales and customer levels applied to existing tariffs, DCUI.emptoyed test year per books revenues as reported by TXU Gas as the starting point of the present rate revenues for this case. DUCI has provided this analysis in Schedule 11. The impact of this adjustment results in an increase of present rate revenues of $1,414,072 and $2,740,670 for the residential and commercial class of customers, respectively. DUCI has found that TXU Gas has substantially understated present rate revenues in previous cases by incorrectly stating historical sales or applying incorrect tariffs in the present rate revenue analysis. It appears that TXU Gas has once again tmderstated present rate revenues. The per books revenues analysis contained in Schedule 11 corrects any errors made by TXU Gas. 21 SECTION VI: ALLOCATION A. Cost Allocation in the System Cost allocation is the process by which the costs incurred by a 'utility in its ownership, operation, and maintenance of a particular system are assigned (allocated) between different classes of customers served by the system. On the N TX Metro System, there are three basic customer classes that share in the assignments of costs. These customer classes are (1) residential, (2) commercial, and (3) industrial/transport customers. :In any general rate proceeding, the costs to be allocated can be assigned to one of four broad categories of costs which include: (t) cost of plant; (2) investment additions and deductions; (3) operating costs, such as labor and supplies and expenses; and (4) non-operating costs, such as depreciation, taxes, and return on investment. TXU Gas' last litigated rate case at the RCT was Dallas Distribution System, Docket No. 9145 which was based on a test year ending December 31, 1999 and decided in November 2000. In that case, TXU Gas' cost allocation study allocated about 91.87% of the investment cost responsibility to the residential and commercial class customers. The remaining 8.13% of plant investment was assigned as the cost responsibility of industrial/transport customers. · The Company's proposed cost allocation was a hotly contested issue in the last Dallas rate proceeding at the RCT. The Examiner who presided in the last case concluded that TXU Gas' proposed single peak day allocator "...ignores the monthly peak changes on the system and that it is not reasonable to select an allocation factor that exceeds ali consumption statistics other than peak day usage.''22 The Examiners concluded, after reviewing the evidence at the hearing, that residential and commercial customers should be allocated 82.43% of investment and the remaining 17.57% allocated to industrial/transport customers.23 · In this case, the Company has changed the allocation of cost responsibility - particularly with regard to Customer classification (discussed below) resulting in an allocation of plant to the residential and commercial customers of about 95.28% and the remaining 4.72% to industrial customers.24 In other words, TXU Gas has put customers 22 See RCT Docket No. 9145 Examiners Report p. 106. 23 See RCT Docket No. 9145 Examiners Report Schedule 24 Company Schedule B-1. 22 back in the same position as proposed by the Company in the last Dallas case. TXU Gas has completely ignored the last decision by the RCT on this matter. B. Customer Classification The key or principal reason for the Company's cost shifting to residential and commercial customers in this case is its proposed heavy weighting of the investment in mains to a customer rather than a demand cost classification. In TXU Gas' last litigation proceeding at the RCT (Dallas Distribution System, Docket No. 9145), the Company testified that customer related costs represent the minimum investment associated with having all customers connected to the system.25 This Classification/Allocation approach is also referred to as the zero-intercept method. Employing the zero-intercept method, TXU Gas classified about 16% of mains investment as customer related.26 Any investment in mains classified as customer rather than demand related will result in a higher final allocation to residential and commercial customers. This occurs because the customer allocator is over 90% to the residential and commercial class while the demand allocator is much less. Thus, the Company has shifted cost responsibility to captive residential and commercial customers by merely changing its cost classification method for mains investment. To see the dramatic change to the customer classification, one need only consider that net investment in mains in this proceeding is $311,444,266.2? The customer classification under TXU Gas' new approach (minimum system) is $153,752,343, or 49.4% of the total. In other words, the Company's proposed mount of investment classified as customer related is significantly greater than what would result if the method found appropriate in the last litigated proceeding at the RCT were employed. In TXU Gas' last case, at the RCT, the Examiners concluded that, "...the zero-intercept method produces a cost ... representative of actual costs incurred for investment in mains.''28 See RCT Docket 9145 Examiners Report p. 99. See RCT Docket 9145 Examiners Report p. 99 and Schedule F-2. Schedule K-8, page 1. See Docket 9145 Examiners Report p. 100. 23 Given that the RCT just recently decided this allocation issue, after extensive litigation and no other factual issues have changed, it is most likely that the RCT will continue to adopt the zero- intercept method for purposes of allocation of mains for TXU Gas in the N TX Metro. Therefore, DUCI has employed the methodology (zero-intercept) approved by the RCT. Employing the zero-intercept method most recently approved in the last Dallas case at the RCT results in changing plant classification between customer and demand related mains investment. The impact results in changing the net distribution investment allocated to residential and commercial customers from 95% to under 91%. 24 SECTION VII: RETURN TXU Gas has requested a total return on invested capital rate base of 9.47%. A 9.47% rate of return applied to the Company's $452,948,117 claimed level of invested capital, results in a total annual return requirement of $42,874,313. The total $42,874,313 return can be broken down into the following functional capital requirements: (t) $15,513,926 debt cost, (2) $430,437 cost of preferred, and (3) $26,930,030 equity return for shareholders. The total base rate annual revenue requirement as proposed by the Company is $171,686,234.29 Return and associated federal income taxes on return amount to $57,891,985 annually under the Company's proposal.3° Thus, about 34 cents of each dollar paid in rates goes to satisfy the Company's claimed return to investors and associated income tax obligations on retum. Return requested is a significant part of the overall cost requirements claimed by the Company. For example, a reduction to the Company's claimed shareholder equity return of 11.5% to 10.5% results in over a $3.3 million annual reduction in revenue requirements. The Company's proposed capital structure and capital cost rates is contained in the following table: TABLE 6 TXU GAS' PROPOSED CAPITAL STRUCTURE Long-term 46.60% 7.35% 3.43% Debt ..... Preferred 1.70% 5.59% 0.10% Stock Common 51.70% 11.50% 5.95% Equity Total 100.O0~ 9247% Claimed Rate Base " $,152,948,'117 Claimed Return .. $ .4.2,874,313 Taxes on Return $ 1...5,017,592 Return and Taxes $ 57,891,905 29 Base revenue requirement excludes gas costs which are determined by the RCT and not subject of this case and excludes revenue related taxes which are 5.076%. 30 Schedule K-l, p. 3. 25 The Company's development of capital structure, capital cost rates and overall return is based on employing data from a group of 12 local distribution companies (LDCs) as a comparable group. TXU Gas is owned by TXU Corp. and the gas distribution division is not publicly traded. Thus, a comparable group of 12 LDCs was used as a proxy to reflect the costs and risks of TXU Gas as a stand-alone distribution system. DUCI has reviewed the Company's analysis and proposals on capital costs and recommends the following capital structure and cost rates for this case. TABLE 7 DUCI'S RECOMMENDED CAPITAL STRUCTURE Long-ter. m Debt 49.24% 7.35% ., 3.62% Preferred Stock 1.18% 5.59% 0.07% Common Equity 49.58% 10.00% 4.96% Total 100.00% 8.6~% Thus, DUCI is recommending an overall rate of return of 8~64% on invested capital rather than the Company's requested 9.47% return. The first adjustment recommended by DUCI is to update the capital structure to reflect more recent capitalization ratios. The same 12 company comparable group was employed, but DUCI's analysis is based on 2001 data rather than the year 2000 data employed by the Company. The second adjustment is to reduce 'the Company's claimed cost of equity from 11.50% to 10.00%. DUCI recommends a return based on a discounted cash flow (DCF) analysis of market data on the 12 LDC companies employed in TXU (}as'. analysis. The DCF analysis indicates a cost of equity of between 10% to t 1% based on forecasted growth rates estimated by Value Line Investment Survey. The midpoint of 10.5% is a fair cost of equity estimate, absent other considerations, and is 100 basis points below TXU Gas' proposed 11.5% equity return request. In terms of equity cost rates, DUCI recommends the lower end of the cost range or 10%. DUCI has become aware of numerous complaints regarding quality of service. A number of cities have stated that TXU Gas has been reluctant to cooperate with cities regarding pipe 26 relocations, causing construction delays and increased cost to city projects. The GURA provides that cities may consider quality of service among other factors in setting return for a utility. Given the above, DUCI has employed the lower end of the equity return rate of t0%, a 50. basis point reduction to adjust for quality of service. The dollar impact of the quality of service adjustment is $1.6 million in revenue requirement. The resulting recommended overall return in this case to be earned on invested capital is 8.64%. 27 SECTION Viii: EXPENSES TXU Gas has requested total O&M, depreciation and amortization expense for the N TX Metro of$102,110,198. DUCI is recommending a number of expense adjustments that result in a decrease of $14,016,530 to the Company's request. This is in line with our findings regarding other utilities which have been experiencing declining O&M expenses. Each of DUCI's adjustments to the Company's requested expenses are discussed below. A. Payroll Expenses TXU Gas is requesting a total labor expense in the amount of $24,038,249.31 This amount consists of base salary, overtime, incentives/bonuses, and other payroll costs based on test year payroll level. DUCI is recommending a total payroll expense of $22,542,206, or a reduction of $1,496,043 to the Company's request. This recommendation consists of three adjustments to the Company's proposed request. 1_. Updated Salary The first adjustment DUCI is proposing to the Company's payroll request is to update the payroll request through test year-end. The update will provide an employee level that will correspond more closely to the period when rates will be in effect. The Company's termination and hiring reports state that TXU Gas has experienced a decrease in employee levels throughout the test year. The Company has not taken this decrease in employee levels into account in its filing. Reviewing additional data provided by TXU Gas, the Company continues to show a decrease in employees through March 2002. DUCI has calculated the change in payroll based on these reports. DUCI is recommending a reduction of $337,044 to reflect employees who are no longer with the Company. Company Schedule G-2.1, page 2 line 62. 28 2. Bonuses and Incentives TXU Gas is requesting $617,408 in bonus and incentive expense. The Company pmvideA a description of each of its bonus plalls.32 Based on a review of the various plans, a majority of the bonuses are based on earnings performance enhancement and growth of the Company. As this will benefit the shareholders, the shareholders should pay the costs of such bonus programs. Based on the intent of the various plans to enhance the Company's earnings, DUCI recommends disallowing bonus/incentive costs in the amount of $617,408. 3. Overtime Ad|ustment The final payroll related adjustment is related to the excessive overtime the Company has included in the filing. In reviewing the Company's level of overtime, the reqUested level of overtime in this proceeding is over $541,591 higher than the average overtime expense experienced in the past 2 years. Given that rates are to be based on expected average operations (not unusually high or low cost operating periods), DUCI is recommending a reduction 'to overtime payroll in the amount of $541,591. B. Benefits TXU Gas is requesting $3,602,448 in employee benefits for the N TX Metro? DUCI is recommending a reduction of $230,347 to the Company's request. The reduction relates to DUCI's recommended decrease in payroll expenses. The Company's test year benefits .are approximately 15% of salary expense? DUCI is not proposing to change the Company's percentage of benefits to total payroll cost, at this time. DUCI is proposing a total reduction to payroll in the amount of $1,496,043. Therefore, to be consistent, DUCI is recommending a reduction of $230,347 for benefits costs associated with the reduction in payroll. Company response to R_FI 1-15. Company response to 1-26. Id. 29 C. Amortization of Merger Related Costs TXU Gas proposes recovery of $969,852 in amortization expense for merger related costs?5 These costs relate to the TXU/Enserch merger that was completed in August 1997. In 1997, TXU Gas offered an early retirement package and incurred $44 million in costs. It has deferred these costs and amortized them over 15.4 years. The ComPany put in place another restruction reduction of employees in 1999, related to the merger completion. DUCI recommends removing the merger related costs for several reasons. First, these are non-recurring costs, and rates in this case should not be based on non-recurring costs. Second, while the Company requests recovery of merger related cost, it does not propose an adjustment to reflect merger related synergy savings that the Company has previously received and not passed on to customers. Third, the RCT specifically denied the Company's recovery of these specific costs in Docket No. 91457 Therefore, a reduction of $969,852 is recommended to the Company's proposed revenue requirement. D. Normalization of Expenses TXU Gas is requesting $77,208,403 in O&M expenses (excluding cost of gas) in this ease. Given that other utilities' costs are declining, this level of increase is not logical or reasonable. A cost of service is developed by taldng a 12-month level of costs and expenses (test year) and adjUsting it for known and measurable changes. Expenses may be higher or lower during the'test year compared to what the utility anticipates will occur in the future. The determination of the appropriate level of expenses is achieved by reviewing the expenses and events that occurred during the test year, reviewing what may transpire in the near term future when new rates will be in effect, and reviewing the historical level of expenses to determine the reasonableness of the test year level of costs. DUCI reviewed the Company's proposed expenses by account, and compared the Company's request with the prior 2 years' actual costs and cost levels found reasonable by the RCT in Docket No. 9145. In this review, DUCI noted 6 expense accounts that required further analysis and adjustment. Each of these accounts is discussed below. Company s response to 1-17. RCT Docket No. 9145, final order, FF 126. 3O The first account DUCI recommends normalizing is Account 887 - Maintenance of Mains. TXU Gas proposed maintenance of mains total expense of $5,992,320. The Company has stated in both prior cases and this current proceeding that it has replaced large amount of old plant in service. With the Company replacing old plant with new facilities, the maintenance expenses should decline, not increase fi.om prior reasonable levels. The Company has further stated that this account was higher during the test year due to "catch up" associated with prior periods. Atypical costs corresponding to "catch up" activities should not be used to set average rates. An average of 2 to 3 years is a more reasonable level for these types of expense accounts. The requested Maintenance of Main expense of $6 million annually should be normalized. This was accomplished by taking the average of the past three years of actual experience. This results in a total N TX Metro expense of $4,756,902, or a reduction of $I,235,418 from the Company's request. This adjustment eliminates non-recurring and atypical maintenance expenses. The second normalization adjustment is for Account 902 - Meter Reading. One of the key expenses that should have gone down due to the merger is customer accounts expenses. Electric and gas operations both had meter readers prior to the merger. After the 1997 merger, TXU combined the meter readers (i.e., one meter reader would read both electric and gas. meters), due to an overall 2/3 customer overlap between the systems. One would anticipate these costs to decrease, not increase. Instead, TXU Gas' requested expense is over $800,000 higher in the current proceeding compared to the average over the past 3 years and over $1,000,000 higher compared to the two years prior to the inflated test year level. DUCI is conservatively recommending a 3-year average as a reasonable normalized level. This recommendation results in a Meter Reading expense amount of $4,297,334, or an $820,839 reduction to the Company's request. The next adjustment is to AccoUnt 903 - Customer Records. This account is overstated in the test year due in part to the significant increase of gas cost during the winter of 2000-2001. The higher gas cost combined with colder weather resulted in a dramatic increased level of calls from customers, higher than normal late payments, and overall customer related activities due to the unusually higher bills. Using a gas cost level that is not indicative of the future is not fa/r or 31 reasonable to ratepayers. Therefore, DUCI is recommending reliance on a 2-year average for Account 903 costs. This results in a reduction to Account 903 of $2,138,452. Similarly, test year levels for Account 923, Outside Services and Account 925, Injuries and Damages are excessive compared to prior levels. Rates should no._~t be based on atypical cost levels. The higher level in these accounts is not indicative of what can and may occur during the period rates will be in effect. For Account 923, the Company has stated that changes in accounting for the test year and unusual shifts in costs have caused this increase. Rates should not be based on unusual, atypical events. For Account 925, the Company historically experienced relatively lower cost levels rather than the significant increase reflected for the test year. Therefore, an average level over a few years is a more reasonable approach for setting rates. DUCI is recommending a 2-year average on each of these accounts, excluding the test year level of costs. This results in a total expense for Account 923 of $13,309,248, or a reduction of $2,124,208. Account 925 adjustment results in a reduction of $1,331,968 to the Company's test year expense of $2,747,043. The final normalization adjustment DUCI is proposing is to Account 931 - Rents. TXU Gas is asking for approximately $800,000 more in rent expense for the N TX Metro compared to the 2 years prior to the test year. Subsequent to the merger between Enserch and TXU, the Company changed its policy from owning buildings to renting. Therefore, it transferred buildings to its non-regulated affiliate, and in turn, the affiliate rents them back to TXU Gas. The sale- transfer occurred at net book value. These buildings were heavily depreciated and, if retained, woUld have resulted in a lower expense to the N TX Metro. The Company now requests an increase of rent expenses 3 times higher than the prior level. The Company has not justified how the transfer of assets and in turn higher rent expense is more beneficial to the ratepayer. DUCI is recommending rent expense of $262,686, which represents an average of the 2 years prior to the test year. This results in a reduction of $799,916. The combination of these six normalization expenses results in a reduction to the Company's proposed cost of service in the amount of $8,450,821. These adjustments reduce the Company's level of its cost of service to a more reasonable and appropriate level. E. Labor and Growth Ad|ustments 32 The Company has requested an increase of $1,260,035 related to an increase in customers. The adjustment is premised on a belief that the increase in customer level will proportionally increase O&M expense. This is simply not correct. One should see synergies as customer levels increase. Costs should be based on a test year level of expenses adjusted for known and measurable changes to reflect a level that will be representative during the near term future. DUCI recommends disallowing this adjustment in the amount of $1,260,035. F. Uncollectibles TXU Gas claims that its uncollectible expense was $6,565,245 in the test year. The Company has proposed to include $1,673,688 in annual test year cost of service expense and surcharge the additional $4,891,557 over a one-year time period to collect the additional uncollectible.expense the Company incurred during the test year? The higher costs during the test year was due in part to the very unusual mn up in gas costs, and a colder than normal winter. DUCI recommends two adjustments to the Company's proposed uncollectible expenses. First, DUCI recommends a reduction to the Company's requested level of uncollectible expense to reflect a normalized 2-year average (1999 and 2000). This results in an uncollectible expense of $1,198,478. In reviewing the Company's historical data, DUCI's recommended $1,198,478 level is more in line with what more likely will occur in the future as the cost of gas has declined significantly from the 2000-2001 winter period. TABLE 8 UNCOLLECTIBLE EXPENSE HISTORICAL COMPARISON Calendar Year 1999 $945,860 Calenda~ Year 2000 $1,451,095 ';rest Year 2001 $6,565,245 As can be seen from the table above, the test year level of uncollectible expense is excessive compared to the historical level of expense. The winter of 2000-2001 was an extremely, tmusual year. Gas prices increased significantly, which caused gas bills to be much higher than normal. Ratepayers incurred very high bills from TXU Gas and some were not able to keep up with the increase. This caused the Company's uncollectible expense to increase 33 during the test year. Gas prices have now come down to much lower levels. Since rates are not calculated using abnormal and atypical events, the test year level of expense should not be used to set a level for the future. DUCI recommends an average of the prior 2 years' expenses or $1,198,478 for test year expenses to reflect a level that is reasonably anticipated to occur during the future. This results in a reduction of $475,210 to the Company's request. The second adjustment DUCI is recommending to the Company's request is to disallow the Company's surcharge of the additional amount of expense incurred during the test year. Rates are developed using a "test year" level of costs. This does not mean that each year while rates are in effect each expense amount will remain at the same level as determined in the rate proceeding. Overall, expenses should remain at the level close to the level determined in the rate proceeding. Some expenses will go down and others, up, but overall the level should remain relatively consistent with the ordered level. I.f enough costs/expenses increase overall, then the Company has the option to file for an increase in rates. The new rate case will be used to determine new rates to be charged in the future, not retroactively. Retroactive ratemaking is not allowed. However, this is precisely what the Company is proposing. It wants to surcharge an expense it incurred in the past (approximately 1 ~A years ago) and collect from ratepayers in the future. The Company's request is also a form of piece-meal ratemaking and should be denied. G. Depreciation Expense DUCI is recommending two adjustments to the Company's proposed plant in service. These adjustments are to remove relocations and remove plant that was not completed by test year end. This results in a reduction to plant in the amount of $17,221,662. These adjustments are discussed in Section IX. DUCI has reduced depreciation expense in the amount of $537,316 to reflect the reduction of plant? This amount was calculated by multiplying the plant reduction by the depreciation rate for Distribution plant of 3.12%. 37 Company's Schedule L-6. 38 Plant reduction. 34 H. Amortization Expense - Safety Compliance Program TXII Gas has requested $941,274 in amortization expense for its Safety Compliance Program. The expense is based on amortizing the Company's requested Safety Compliance Program cost included in the rate base over 15 years? DUCI recommends modifying the amortization period. It is inappropriate to propose a 15-year amortization period for an asset that TXU Gas claims had a remaining life of approximately 41 years. Therefore, DUCI is recommending amortizing the asset over 41 years. This results in a total annual amortization expense of $344,369 or a reduction of $596,906 to the Company's proposed request. Safety Compliance Program of $14,119,117 divided by 15 years. 35 SECTION IX: RATE BASE A. ,Safety, Compliance Program The Company has included $14,119,117 in rate base for additional investment for the safety compliance program. The safety compliance program is related to replacing the defective "Poly I pipe." The defective pipe was purchased from: an affiliate that profited from the original sale, but ratepayers are asked to pay the full replacement cost of this defective product. DUCI recommends 'that the burden of these pipe replacements at a minimum be shared between the Company and the ratepayer. Therefore, a return of such plant over the 41-year remaining life ensures the Company receives the recovery of its investment. However, customers should not have to pay a return on the unamortized balance {Sf these investments. This approach shares the burden between the Company who purchased defective pipe from an affiliate and customers who received limited use of the investment. B. Cash Working Capital ("CWC") CWC represents the component of rate base that accounts for the day-to-day cash requirements of the Company that are not already addressed elsewhere in the cost of service analysis. This Company, or its affiliate, at the RCT, has recently litigated the calculation procedure for this component of rate base. In each litigation, the Company's approach was denied. Therefore, the proper calculation of the CWC requirement in this case should be relatively straightforward. For the most part, the Company's request for CWC does comply with RCT recent decisions. However, the Company failed to update numerical data for one significant known and measurable change that occurred since the RCT decisions. The significant change is that the Company now securitizes approximately 73% of its revenues, a level significantly greater than the approximate 23% level it experienced at the time of the RCT case. Securitization of revenues is similar to selling accounts receivable to an outside party in order to obtain cash on a timelier basis. If cash is received on a more timely basis, it reduces CWC requirements, or as is · the case for TXU Gas, it makes the CWC requirement more negative than the level proposed in 36 its filing. Recognition of the higher level of securitization of accounts receivable reduces the Company's revenue lag from 30.336 days to 21.445 days. This change reduces TXU Gas' CWC. request from a negative $17,353,815 to a negative $25,275,022, on a stand-alone basis. Due to the interactive impact of other adjustments, the level of this adjustment will be reduced when other recommended expense and tax changes are combined in the overall cost of service analysis. C. Preoayments The Company's request reflects a significant level of prepayments associated with local franchise fees. The Company has incorrectly characterized these payments as prepayments. These payments are paid in arrears. Correction of this en'or reduces the amount in rate base by $2,302,877. D. Relocation TXU Gas has included $16.7 million in plant investment associated with pipe relocations. Such relocations are city specific and the costs associated with the relocations should be paid by the party causing such costs to be incurred. The GURA §104.112 provides an alternative mechanism by which the Company may recover these amounts through a surcharge mechanism. DUCI recommends removing $16.7 million of relocation investment from the calculation of base rates in this case. TXU Gas has an opporttmity to recover those cost from the particular entities that caused these costs to be incurred, through a surcharge under GURA § 104.112. E. Construction Work in Process ("CWIP") TXLI Gas has requested gross plant in the amount of $749,563,229: In reviewing the Company's response to recently completed plant, DUCI noted $521,662 in plant was not used and useful by test year end. For plant to be considered in TXU Gas' revenue requirement, it must have been completed by September 30, 2001. Utility companies are normally not allowed 37 to include CWlP in revenue requirement unless there is a financial integrity issue: Clearly, that is not the case for TXU Gas. Plant in service is treated differently than expenses. It is recorded as of the last day of the test year. It normally does not reflect a future or normalized level. If the Company has additional plant that comes on-line after the end of the test year, it can request plant increases in the next proceeding. The Company does not lose the opportunity to include the additional plant, which goes into service prior to the beginning of the next rate case, unlike expenses. Therefore, DUCI is recommending a reduction to plant in the amount of $521,662 related to CWlP, which was not used or useful in the test year. This results in approximately a $97,311 reduction to the Company's revenue requirement. 38 SECTION X: FEDERAL INCOME TAXES The Company has requested $15,017,592 in its revenue requirement for Federal Income Taxes ("FIT"). DUCI is recommending a total FIT expense of $11,036,112. This adjustment relates exclusively to DUCI's recommended rate of remm discussed in Section VI and DUCI's recommended adjustments to rate base discussed in Section IX. DUCI is not recommending any adjustments to the Company's calculation of FIT. 39 SECTION XI: TAXES OTHER THAN FIT A. Revenue Related Taxes TXU Gas has proposed a total revenue related effective tax factor of 5.076%. The following table breaks down each component of its effective rates. TABLE 9 REVENUE RELATED TAXES State Gross Receipts Tax 1,8648% Local Cross Receipt Fee 3.2112% Total Revenue Related Tax 5.076% DUCI is not recommending any adjustment to the Company's percentages. However, a reduction of $1,406,567 is being recommended as a result of other adjustments recommended by DUCI in the Company's proposed revenue requirement. B. Property Taxes TXU Gas is requesting $7,653,392 in property tax expense. DUCI recommends reversing the Company's proposed $1,032,456 property tax expense increase for the test year. TXU Gas proposed an adjustment to property tax to reflect the difference between the assessed value verses the actual tax paid in a calendar year. In fact, TXU Gas paid a significantly lower tax mount for 2001 than it was assessed. Therefore, DUCI recommends an adjustment to the Company's proposed expense, resulting in a total adjusted property tax expense of $6,620,936. C. Payroll Taxes TXU Gas is requesting payroll taxes in the amount of $1,861,969. TXU Gas based its request on an effective tax rate of 7.7459%fi° DUCI is recommending a reduction to payroll taxes in the mount of $1 t 5,882, based on its recommended reduction of payroll expense. 40 Company's Schedule G-9. 40 SECTION XII: RATE DESIGN The last aspect of this rate review is the ultimate rate design. Once the appropriate level of base rate revenue requirements have been established and allocated to rate classes, individual customer class rates can be developed. As previously noted, DUCI recommends that a rate not be established for the industrial customer class. Moreover, development of new residential and commercial customer rates, corresponding to the revenue requirements of each class, possess unique concerns in this case. This case represents a situation where numerous different city rate jurisdictions are being merged into a single large system that will encompass over 100 cities. When different rate jurisdictions, with different rates for each customer class, are combined into a single average rate for the new system, certain cities will experience a greater than average rate charfge while others will experience a rate change less than the average. Therefore, DUCI is proposing three different alternatives for the Cities' consideration. The three alternatives are: (1) to deny TXU Gas' request for a rate change, (2) implement a set percentage change for each base rate component of each rate, or (3) adopt the same average N TX Metro rate for each residential and commercial customer no matter which city the customer is located in. If the Cities elect to deny the Company's proposed rate change, then the existing rates applicable in each of the numerous rate jurisdictions stays the same. This leaves each jurisdiction in the same relative position, compared to the other rate jurisdictions being combined in this case, as they were in before the Company's request. The second alternative is to implement a constant 2.26% reduction to each base rate component of each tariff for each of the current rate jurisdictions. In other words, each existing customer and commodity or volume charge within each current rate jurisdiction (e.g., Northwest Metro, Northeast Metro, etc.) would change by the same identical percent (2.26%). This approach leaves each of the existing rate jurisdictions in approximately the same relative position after the rate change as was in place before TXU Gas' proposed combination of systems. If this alternative is selected, it will be necessary to remove gas costs from the tariff rates in those cities where it is included in the tariff charges prior to application of the percentage reduction. 41 The last alternative is to implement average N TX Metro residential and commercial rates for all Cities. This approach will result in each of the existing rate jurisdictions experiencing different levels of rate changes, some above the average and some below the average. If this alternative is adopted, the average residential and commercial rates are set forth betow. A. Residential Average Rate Alternative The Company has proposed a $9.40 customer chargefiI Based on a review of the costs allocated to the residential class, recognition of the allocation process, and recognition of the benefits of rate understandability from the customer's standpoint, a $7.50 per month customer charge is recommended. The Company has proposed expanding the commodity or volume charge .from a flat or single charge for all usage to a 3-block declining rate structure. The three proposed commodity blocks are $I.15 per Mcr for the first 3 Mef of usage, $1.0822 per Mef for the next 12 Mcf of usage, and a $0.999 per Mcf charge for all usage in a month greater than 15 Mcf.42 The equivalent average rate proposed by the Company, based on the estimated usage in each block, is $1.1006 per Mcr.43 The Company has not demonstrated the benefits for reverting back to a declining block rate structure. Therefore, DUCI recommends retaining the existing rate structure of a single of fiat charge for each Mcf of usage. Based on the lower revenue requirement recommended by DUCI for this class, a $0.8794 per Mcr charge has been developed. The Company proposed rate design eliminates the off peak usage discount of $0.25 per Mcr. DUCI does not oppose this proposal. 4~ TXU Gas rate filing, proposed tariff section. 4~ Id. 4z TXU Gas rate filing, Section L-4. 42 B. Commercial The Company has proposed a $14.75 customer charge.44 Based on a review of the costs allocated to the commercial class, recognition of the allocation process, and recognition of the benefits of rate understandability from the customer's standpoint, a $13.50 per month customer charge is recommended. The Company has proposed a 3-block declining rate structure for the commodity or volume charge. The three proposed commodity blocks are $1.13 per Mcr for the first 75 Mcfof usage, $1.011 per Mcr for the next 275 Mcfofusage, and a $0.9302 per Mcf charge for all usage in a month greater than 350 Mcf. The equivalent average rate proposed by the Company, based on the estimated usage in each block, is $1.02998 per Mcfi For purposes of this report only, DUCI recommends accepting the proposed rate structure with changes in the level for each block corresponding to the lower revenue requirement recommended for this class. Based on the' lower revenue requirement recommended by DUCI for this class, charges of $0.9913, $0.8869, and $0.8161 per Mcf charge for the 3 blocks have been developed. *~ TXU Gas rate filing, proposed tariff section. 43 : '" ":i '!'. ' .'. '..- ' Bat¢~r:Spring. s ' - ' '"- - ' 'iBedfbrd. Benbrool~ - ' BtOel. Mound: .Blue Rid ~je ...... 13ufle~on ' ' ' Ca~rotffon, '~" ::':"- Cedar Hill[ : :.". ..... CeliCa 'Pap, deF. Pd~eten Pi'osper Richacdson Richlan~l H lis, Ri~r O'a~. 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' ,' s~t~a~ ' - . -Ad~:: ' "":" S:\Onr D ocmm ent skRes olurion s\02 kD enyin g TXU Gas request to chg rares.doc RESOLUTION NO. RESOLUTION DENYING TXU GAS DISTRIBUTION'S REQUEST TO CHANGE RATES IN THE NORTH TEXAS METROPLEX DISTRIBUTION SYSTEM AS RECOMMENDED BY THE COALITION OF CITIES' CONSULTANTS AND COUNSEL; REQUIRING PROMPT REIMBURSEMENT OF THE CITIES' RATE CASE EXPENSES; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on or about March 1, 2002, TXU Gas Distribution, a division of TXU Gas Company filed with the City of Denton a Statement of Intent to change gas rates in all municipalities within the North Texas Metroplex Distribution System effective April 5, 2002; and WHEREAS, by passage of the Resolution No. 2002-010 on March 26, 2002, the City of Denton suspended the effective date of the proposed new rates for 90 days to evaluate the reasonableness of existing rates and the merits of TXU's proposed changes; and WHEREAS, the City of Demon participated with other municipalities in a comprehensive review of TXU Gas Distribution's application; and WHEREAS, on June 18, 2002, the City Coundl held a public hearing to receive public comment and to take evidence on TXU Gas Distribution's application to change gas rates; and WHEREAS, consultants and counsel retained by the coalition of cities have recommended denial of the Company's applicatbn based upon a report from consultants demonstrating that the revenue requirement of the North Texas Metroplex Distribution System is being met under current rates; and WHEREAS, that recommendation has been endorsed by the Steering Committee of city representatives who have coordinated the review of TXU Gas Distribution's rate application; and WHEREAS, after receiving evidence and public comment at the public hearing, the City Council deems it in the public interest to deny TXU Gas Distribution's Statcnent of Intent to change gas rates; and WHEREAS, the Gas Utilities Regulatory Act provides that costs incurred by Cities in ratemaking activities are to be reimbursed by the regulated utility; NOW, THEREFORE; THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES: SECTION 1. That TXU Gas Distribution's Statement of Intent to change gas rates within the North Texas Metroplex Distribution System, including the City of Demon, be in all respects denied. S:\Our D ocmm ent s~es olurion s\02 ~D enyin g TXU Gas request to chg rares.doc SECTION 2. That the costs incurred by the Cities in reviewing TXU's application be promptly reimbursed by the Company. SECTION 3. That the City Secretary is hereby directed to send copies of this resolution, constituting final action on TXU's application to Autry Warren, Rates Manager, TXU Gas Distribution, 1601 Bryan Street, Dallas, TX 75201-3402 and G. Gait G. Gait Watkins of Akin, Gump, Strauss, Hauer & Field, 818 Congress Ave., Suite 1900, Austin, TX 78701. SECTION 4. This resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2002. MARK BURROUGHS MAYOR PRO TEM ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 Agenda 02-021 06/18/02 #47 AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET June 18, 2002 Legal Department Herb Prouty, City Attorney SUBJECT: CONSIDER AND ADOPT AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING SETTLEMENT OF LITIGATION STYLED CITY OF DENTON V. TEXAS UTILITIES COMPANY, ET ~IL., CAUSE NO. 009383 CURRENTLY PENDING iN THE 134vH DISTRICT COURT OF DALLAS COUNTY, TEXAS; AUTHORIZING THE CITY MANAGER AND THE CITY ATTORNEY TO ACT ON THE CITY'S BEHALF iN EXECUTING ANY AND ALL DOCUMENTS NECESSARY TO EFFECT SUCH SETTLEMENT UNDER THE TERMS SET FORTH iN THE ATTACHED COMPROMISE SETTLEMENT AND RELEASE AGREEMENT, AND TO TAKE SUCH OTHER ACTIONS DEEMED NECESSARY TO FiNALiZE THE SETTLEMENT; AND DECLARING AN EFFECTIVE DATE. BACKGROUND: In June 2000, the City of Denton filed suit against Texas Utilities Company, et al. ("TXU") in Demon County in an attempt to collect delinquem franchise fees under its electric and gas franchises with TXU. The City selected Strasburger & Price from among five proposals from outside law firms to represent it in this litigation. Thirtysix other cities joined the litigation, which has been the subject of mediation and various settlement negotiations since last Summer. As a result of mediation in January 2002, the cities agreed on asettlement which was previously explained to you in an executive session. Under the settlement, the City of Demon would receive $100,677 in historic gas franchise fee revenue, $3,405 in electric franchise fee revenue, and $328,028 for reimbursemem for is share of litigation costs. After paying its share of the outstanding litigation costs, Demon should net about $200,000 in reimbursed litigation costs. All other cities in the lawsuit will receive their proportional shares of the settlement. Demon would also receive amended TXU gas and electric franchises, which would add additional revenue sources to the franchise fee base. Although in the Fall of last year we negotiated new electric and gas franchises with TXU, the negotiated settlement adds seveal additional new revenue sources, including franchise fee on franchise fee revenue and contributions in aid of construction (CiAC) revenue on the gas side. This would increase the amount of future franchise fee revenue under the existing franchises. Thefranchise amendments also include a most favored nations clause which will give the cities involved in the litigation enhanced additional revenues if any city in the TXU Gas or Electric distribution system receives a franchise which grants more favorable franchise fee payments than Denton's franchises. If the City Council accepts the settlement and approves the Compromise Settlement and Release Agreement, we will bring the amendments to the gas and electric franchises attached to the Compromise Settlement and Release Agreement to you for consideration on first reading at your July 16, 2002 meeting. Under the Charter, it will take three separate readings of the ordinance to amend the franchises. This would mean that amendmems to the gas and electric fanchises would be complete at your first regular meeting in August. However, the amendments to the S:\Our DocmmentshMiscellaneous\02\agenda infbrmarion sheer TXU settlement, doc franchise would be retroactive back to January 1, 2002 so that the benefits of the additional revenue sources and the enhanced franchise fees would be applcable to franchise fee paymems made during the currem year. RECOMMENDATION AND OPTIONS: Pass the ordinance accepting the settlement and authorize the City Manager to execute the Compromise Settlement and Release Agreement. Do not accept the settlement and fail to pass the ordinance approving the Compromise Settlement and Release Agreement. We recommend that the City Council adopt the ordinance that accepts the settlement and authorizes the City Manager to sign the Compromise Settlement and l~lease Agreement. The Steering Committee of the 37 cities involved in the settlement recommends that all cities involved in the litigation approve the settlement. The settlement would result in a prompt payment of the historic revenue indicated above to Denton along with a substantial reimbursement of litigation costs expended, in addition, there would be a significant enhancement of future revenue. Additional information on the settlement is included in the City Attorney's Status Report. FISCAL INFORMATION: The approval of this settlement would result in a prompt payment to Demon of over $300,000 in historic electric and gas franchise fees and litigation costs, in addition, the additional revenue added by the recent renewal of TXU's gas and electric franchises, together with the amendments to the franchises agreed to by TXU, would result in something in excess of $2,500,000 in additional franchise fee revenues over the 10year life of franchises according to the estimates of Diversified Utility Consdtants, inc. Respectfully submitted, Herb Prouty, City Atto~e~- HP:tr Page 2 S:\Our DocmmentskMiscellaneous\02\agenda infbrmation sheer TXU settlement, doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING SETTLEMENT OF LITIGATION STYLED CITY OF DENTON V. TEX.4S UTILITIES COMP.4NE ET.4L., CAUSE NO. 009383 CURRENTLY PENDING IN THE 134TH DISTRICT COURT OF DALLAS COUNTY, TEXAS; AUTHORIZING THE CITY MANAGER AND THE CITY ATTORNEY TO ACT ON THE CITY'S BEHALF IN EXECUTING ANY AND ALL DOCUMENTS NECESSARY TO EFFECT SUCH SETTLEMENT UNDER THE TERMS SET FORTH IN THE ATTACHED COMPROMISE SETTLEMENT AND RELEASE AGREEMENT, AND TO TAKE SUCH OTHER ACTIONS DEEMED NECESSARY TO FINALIZE THE SETTLEMENT; AND DECLARING AN EFFECTIVE DATE. THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The settlement of litigation styled City of Denton v. Texas Utilities Company, et al., Cause No. 009383 pending in the 134th District Court of Dallas County, is hereby approved, and the City Manager is hereby authorized to execute a Compromise Settlement and Release Agreement and other related documents deemed by the City Manager and the City Attorney to be necessary to conclude the settlement of said litigation as set forth substantially in accordance with the attached Compromise Settlement and Release Agreement. SECTION 2. The City Attorney is hereby authorized to provide TXU, through their attorneys, a fully executed copy of this ordinance and a fully executed original of the Compromise Settlement and Release Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2002. MARK BURROUGHS, MAYOR PRO TEM ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY S 5Our DocumentsSOrdinancesS025txu settlement.doc "- COMPROMISE, SETTLEMENT AND RELEASE AGREEMENT This Compromise, Settlement, and Release Agreement (the "Agreement") is made and entered into as of the date set forth below by and between the City of Denton (the "City") and TXU Electric Company n/k/a TXU US Holdings Company ("TXU Electric"), TXU Gas Company ("TXU Gas") and TXU Corp. (collectively sometimes referred to as the "TXU Defendants"): WHEREAS, there is currently pending in the 134tn Judicial District Court of Dallas County, Texas, in Cause No. 00-9383, a suit styled City of Denton, Texas et al. vs. TXUElectric Company, et al. (the "Litigation") which includes claims by the City against the TXU Defendants arising out of the electric and gas franchise ordinances entered into by and between the City and TXU Electric and TXU Gas and, specifically, a dispute with regard to the amount of franchise fees paid to the City by TXU Electric and TXU Gas; WHEREAS, the City and the TXU Defendants have compromised and settled all claims asserted in the Litigation; NOW, THEREFORE, in order to settle and finally resolve the causes of action asserted in the Litigation and to fully and finally resolve all disputes and claims arising out of the calculation and payment of franchise fees to the City by TXU Electric and TXU Gas prior to and through December 31,2001, for the mutual promises and covenants set forth in this Agreement, the adequacy and sufficiency of which consideration is acknowledged, and, without the TXU Defendants having admitted any of the validity of any allegations made in the Litigation, the City and the TXU Defendants agree as follows: 1. AMENDMENTS TO THE ELECTRIC FRANCHISE ORDINANCE As the result of electric industry restructuring, the electric franchise formerly held by TXU Electric has been assigned to Oncor Electric Delivery Company ("Oncor"), accordingly, COMPROMISE, SETTLEMENT AND RELEASE AGREEMENT - Page 1 effective January 1, 2002, the City agrees to enter into and TXU Electric agrees to cause Oncor to accept an amendment to the current electric franchise ordinance substantially in the form of the amendment attached as Exhibit A which amendment shall, at the election of the City, provide that the Discretionary Services Charges identified in Section 6.1.2 of the Tariff for Retail Delivery applicable to Oncor which are directly paid by the customer and which are those charges identified as items DD 1 through and inclusive of DD24 in said tariff, shall be subject to an additional franchise fee based on 4% of such charges which additional franchise fee shall be paid to the City pursuant to the terms of the amendment attached as Exhibit A. The City acknowledges that Oncor may file with the Texas Public Utility Commission and/or the City a tariff amendment in compliance with the terms of this agreement, which will provide that Oncor shall have the right to collect from the customer the franchise fee on such Discretionary Service Charges such that the customer shall bear 100% of the franchise fee on such Discretionary Service Charges. The City acknowledges that Oncor is an intended third-party beneficiary of this agreement and agrees to cooperate with Oncor in order for Oncor to pass through to customers the entire franchise fee on such Discretionary Service Charges by taking the following actions: (i) to the extent the City acts as regulatory authority, by adopting and approving that portion of any tariff in compliance with the terms of this Agreement which provides for 100% recovery of such franchise fees; (ii) in the event the City intervenes in any regulatory proceeding before a federal or state agency in which the recovery of the franchise fees on such Discretionary Service Charges is an issue, the City will take an affirmative position supporting the 100% recovery of such franchise fees by Oncor and; (iii) in the event of an appeal of any such regulatory proceeding in which the City has intervened, the City will take an affirmative position in any such appeals in support of the 100% recovery of such franchise fees by Oncor. The City further agrees not to take any action to prevent the recovery of the franchise fees on such Discretionary COMPROMISE, SETTLEMENT AND RELEASE AGREEMENT - Page 2 Service Charges by Oncor and to take other action which may be reasonably requested by Oncor to provide for the 100% recovery of such franchise fees by Oncor. 2. AMENDMENTS TO THE GAS FRANCHISE ORDINANCE Effective January 1,2002, the City agrees to enact and TXU Gas agrees to accept an amendment to the current gas franchise ordinance substantially in the form of the amendment attached as Exhibit B to provide that, at the election of the City, the franchise fee will increase to a maximum of 4.00% of the applicable franchise fee payment base and, at the election of the City, the franchise fee payment base shall be amended to include miscellaneous fees, contributions in aid of construction, bad debt expense, transportation revenues and third-party gas sales and gross receipts fees as well as a favored nations clause with respect to franchise fee payments and franchise fee calculations, substantially in the form of the provisions in Exhibit B. The City acknowledges that TXU Gas has the right to recover from its ratepayers such additional franchise fee payments to the City and the City agrees to cooperate with TXU Gas in order for TXU Gas to pass through to its ratepayers the entire franchise fee payment, as amended, by taking the following actions: (i) as regulatory authority, by adopting and approving the ordinance, rates or tariff'which provide for 100% recovery of such franchise fees as part of TXU Gas' rates; (ii) in the event the City intervenes in any regulatory proceeding before a federal or state agency in which the recovery of TXU Gas' franchise fees is an issue, the City will take an affirmative position supporting 100% recovery of such franchise fees by TXU Gas and; (iii) in the event of an appeal of any such regulatory proceeding in which a City has intervened, the City will take an affirmative position in any such appeals in support of the 100% recovery of such franchise fees by TXU Gas. The City further agrees not to take any action to prevent the recovery of such franchise fees by TXU Gas and to take other action which may COMPROMISE, SETTLEMENT AND RELEASE AGREEMENT - Page 3 be reasonably requested by TXU Gas to provide for the 100% recovery of such franchise fees from TXU Gas' ratepayers. 3. PAYMENTS TO THE CITY Upon execution and delivery of a fully executed and notarized original of this Agreement and conditioned upon the dismissal of the Litigation with prejudice as provided by TXU Gas agrees to pay to the City by payment to its attorneys, Strasburger & Price, the sum of $100,677.00 the same being City's share of an aggregate sum of exactly $2,000,000.00 which TXU Gas agreed to pay to the Plaintiffs in the Litigation, which $2,000,000.00 amount is calculated by multiplying the general business revenues received by TXU Gas in the calendar year 2000 in the City in which TXU Gas did business in the aggregate amount of $165,591,132.80 by a factor equal to 0.0120779414. The City acknowledges that TXU Gas has the right to and shall recover the portion of the $2,000,000.00 amount actually paid to the Plaintiffs in connection with the settlement of the Litigation from its ratepayers pursuant to the tax adjustment clause applicable to TXU Gas, by applying a surcharge to the monthly bills rendered to its ratepayers, provided that the recovery of such surcharge shall be limited as follows: (1) the surcharge shall be amortized over a period not less than three years, and (2) the accrual balance will not be subject to interest. TXU Gas agrees that the franchise fee paid to the City and recovered from ratepayers under this Agreement will not include any amounts collected in the past from ratepayers. B. TXU Electric agrees to pay or cause Oncor to pay the City, by payment to its attorneys, Strasburger & Price, the sum of $3,405 the same being City's share of an COMPROMISE, SETTLEMENT AND RELEASE AGREEMENT - Page 4 Paragraph 5: A. aggregate sum of exactly $1,000,000.00 which TXU Electric agreed to pay to the Plaintiffs in settlement of the Litigation, which $1,000,000.00 is calculated by multiplying the general business revenues received by TXU Electric in the calendar year 2000 in the City in which TXU Electric did business in the aggregate amount of $1,149,561,767.63 by a factor equal to 0.000869897. C. The TXU Defendants agree and expressly represent that none of the amounts set forth in paragraphs 3(B) and 4 shall be recovered from ratepayers pursuant to a tax adjustment clause or by applying a surcharge to the monthly bills rendered to ratepayers, or otherwise "passed thru" to ratepayer(s). COMPROMISE, SETTLEMENT AND RELEASE AGREEMENT - Page 5 4. FEES AND EXPENSE REIMBURSEMENT Upon execMion and delivery of a fully execMed and notarized original of this AgreemeM and conditioned upon the dismissal of the Litigation with prejudice as provided by Paragraph 5, the TXU Defendants agree to pay and/or cause Oncor to pay the City, by payment to its attorneys, Strasburger & Price, the sum of $328,028.00 the same being City's share of an aggregate sum of exactly $915,000 which the TXU Defendants agreed to pay to the PlaiMiffs to reimburse the Plaintiffs for attorneys' fees and expenses incurred in the Litigation. 5. DISMISSAL OF THE LITIGATION The parties recognize and agree that this settlement is a full settlement of all claims asserted or which could have been asserted by the City against TXU Electric, TXU Gas and TXU Corp. in the Litigation related to the calculation or paymeM of franchise fees prior to and through December 31,2001 and the parties agree that, in connection with such settlemeM, they will joiMly file with the Court having jurisdiction of the Litigation appropriate pleadings in order to dismiss the Litigation with prejudice as to the City, with the order of dismissal to provide that costs of court will be taxed against the party incurring the same and be substantially in the form of the Agreed Order attached as Exhibit C. 6. RELEASE OF THE TXU DEFENDANTS BY THE CITY Except for claims arising oM of a breach of this AgreemeM, the City of DeMon, on behalf of itself and its successors and assigns and any and all persons, eMities or municipalities claiming by, through or under them, hereby RELEASES, DISCHARGES AND ACQUITS, forever and for all purposes, TXU Electric Company (now known as TXU US Holdings Company), its successor Oncor Electric Delivery Company, TXU Gas Company, including its division TXU Gas COMPROMISE~ SETTLEMENT AND RELEASE AGREEMENT - Pa~e 6 Distribution, TXU Corp. and each of their respective agents, employees, officers, directors, shareholders, partners, insurers, attorneys, legal representatives, successors and assigns as well as their affiliated corporations, including TXU Business Services Company and TXU Energy Company LLC and its subsidiaries, from and against any and all liability which they now have, have had or may have, and all past, present and future actions, causes of action, claims, demands, damages, costs, expenses, compensation, losses and attorneys' fees of any kind or nature whatsoever, or however described, whether known or unknown, fixed or contingent, in law or in equity, whether asserted or unasserted, whether in tort or contract, whether now existing or accruing in the future arising out of or related to the payment, calculation or rendition of franchise fees to the City on or before December 31,2001 and all claims which were asserted against the TXU Defendants in the Litigation or which could have been alleged against the TXU Defendants in the in the Litigation in any way related to the payment, calculation or rendition of franchise fees by the TXU Defendants on or before December 31,2001. This release is intended to only release claims related to the payment, calculation or rendition of franchise fees by the TXU Defendants on or before December 31,2001 and is not intended to release any other claim or cause of action that any party to this Agreement has, known or unknown, or which accrues in the future. 7. WARRANTY AS TO OWNERSHIP OF CLAIMS AND AUTHORITY A. The City warrants and represents that it is the owner of the claims being compromised, settled, discharged and released pursuant to this Agreement and each further warrants and represents that it has not previously assigned all or any part of such claims to another entity or person. The City warrants and represents that there are no liens of any nature, assignments or subrogation interests in or to the money paid to the City under the terms of this Agreement. COMPROMISE, SETTLEMENT AND RELEASE AGREEMENT - Page 7 B. The TXU Defendants warrant that the person(s) executing this Agreement on their behalf has authority to bind the entity for whom such person signs this Agreement. 8. NO ADMISSION OF LIABILITY This Agreement is made to compromise, terminate and to constitute an accord and satisfaction of all of the claims released by this Agreement and the TXU Defendants admit no liability, fault or wrongdoing of any nature or kind whatsoever and expressly deny and disclaim any liability, fault or wrongdoing alleged or which could have been alleged with regard to the claims asserted in the Litigation. 9. RECOVERY OF DAMAGES DI. JE TO BREACH In the event of breach by any party of the terms and conditions of this Agreement, a non-breaching party shall be entitled to recover all expenses as a result of such breach, including, but not limited to, reasonable attorneys' fees and costs. 10. MISCELLANEOI. JS PROVISIONS It is understood and agreed that all agreements and understandings by and between the parties to this Agreement with respect to the Litigation, the settlement of the Litigation and the payment of franchise fees are expressly embodied in this Agreement and that this Agreement supersedes any and all prior agreements, arrangements or understandings between the parties relating to the claims released pursuant to this Agreement or any matters related thereto executed by the parties, including the Memorandum of Understanding dated January 31,2002 signed by counsel for the Plaintiffs and the TXU Defendants. 11. The parties acknowledge and agree that the terms of this Agreement are all contractual and not mere recitals. COMPROMISE, SETTLEMENT AND RELEASE AGREEMENT - Page 8 12. The parties acknowledge that they have read this Agreement, understand its terms, and that this Agreement is entered into voluntarily, without duress, and with full knowledge of its legal significance. 13. This Agreement may not be modified in any manner, nor may any rights provided for herein be waived, except by an instrument in writing signed by each party. 14. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. 15. Should any term or any provision of this Agreement be declared invalid by a court of competent jurisdiction, the parties agree that all other terms of this Agreement are binding and have full force and effect as if the invalid portion had not been included. 16. The parties represent and warrant that no party has been induced to enter this Agreement by a statement, action or representation of any kind or character made by the persons or entities released under this Agreement or any person or persons representing them, other than those expressly made in this Agreement. 17. It is understood and agreed that this Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. 18. The headings contained herein are for convenience and reference only and are agreed, in no way, to define, describe, extend or limit the scope or intent of this Agreement or its provisions. 19. This Agreement shall be construed in accordance with the laws of the State of Texas. IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the date set forth below. THE CITY OF DENTON, TEXAS COMPROMISE, SETTLEMENT AND RELEASE AGREEMENT - Page 9 By: Date: Michael A. Conduff, City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: TXU ELECTRIC COMPANY n/k/a TXU US HOLDINGS COMPANY By: Its: Date: TXU GAS COMPANY By: Its: Date: TXU CORP. By: Its: Date: COMPROMISE, SETTLEMENT AND RELEASE AGREEMENT - Page 10 STATE OF TEXAS § COUNTY OF DENTON § This instrumem was acknowledged before me on the __ day of June 2002, by Michael A. Conduff, as City Manager on behalf of the City of DeNon, Texas. Notary Public, State of Texas STATE OF TEXAS § COUNTY OF DALLAS § This instrumem was acknowledged before me on the day of June 2002, by. , of TXU Electric Company n/k/a TXU US Holdings Company, on behalf of said corporation. Notary Public, State of Texas STATE OF TEXAS § COUNTY OF DALLAS § by This instrumem was acknowledged before me on the day of June 2002, , of TXU Gas Company, on behalf of said corporation. Notary Public, State of Texas STATE OF TEXAS § COUNTY OF DALLAS § This instrumem was acknowledged before me on the by. , of TXU Corp., on behalf of said corporation. day of June 2002, Notary Public, State of Texas COMPROMISE, SETTLEMENT AND RELEASE AGREEMENT - Page 11 EXHIBIT A ORDINANCE NO. AN ORDINANCE AMENDING THE EXISTING ELECTRIC FRANCHISE BETWEEN THE CITY AND ONCOR ELECTRIC DELIVERY COMPANY, TO PROVIDE FOR A DIFFERENT CONSIDERATION; PROVIDING AN EFFECTIVE DATE; PROVIDING FOR ACCEPTANCE BY ONCOR ELECTRiC DELIVERY COMPANY; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE IS PASSED IS OPEN TO THE PUBLIC AS REQUIRED BY LAW. WHEREAS, Oncor Electric Delivery Company, successor in interest to TXU Electric Company (hereinafter called "Oncor") is engaged in the business of providing electric utility service within the City and is using the public streets, alleys, grounds and rights-of-ways within the City for that purpose under the terms of a franchise ordinance heretofore duly passed by the governing body of the City and duly accepted by Oncor; and WHEREAS, the City and Oncor desire to amend said franchise ordinance to provide for a different consideration; OF NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY , TEXAS: that SECTION 1: The existing electric franchise ordinance between the City and Oncor Electric Delivery Company is amended as follows: Effective January 1, 2002, the franchise fee due from Oncor shall be a sum comprised of the following: (1) a charge, as authorized by Section 33.008(b) of PURA, based on each kilowatt hour of electricity delivered by Oncor to each retail customer whose consuming facility's point of delivery is located within the City's municipal boundaries and as specified by Oncor to the City by letter dated January 21, 2002. (a) The franchise fee due pursuant to Section 33.008(b) of PURA shall be payable in accordance with the existing electric franchise; and (2) a sum equal to four percent (4%) of gross revenues received by Oncor from services identified in its "Tariff for Retail Delivery Service", Section 6.1.2, "Discretionary Service Charges," items DD1 through DD24, that are for the account or benefit of an end-use retail electric consumer. (a) The franchise fee amounts based on "Discretionary Service Charges" shall be calculated on an annual calendar year basis, i.e., from January 1 through December 31 of each calendar year. (b) The franchise fee amounts that are due based on "Discretionary Service Charges" shall be paid at least once annually on or before April 30 each year based on the total "Discretionary Service Charges" received during the preceding calendar year. B. Oncor Franchise Fee Recovery Tariff (1) Oncor may file a tariff amendment(s) to provide for the recovery of the franchise fee on Discretionary Service Charges. (2) City agrees (i) to the extent the City acts as regulatory authority, to adopt and approve that portion of any tariff which provides for 100% recovery of the franchise fee on Discretionary Service Charges; (ii) in the event the City intervenes in any regulatory proceeding before a federal or state agency in which the recovery of the franchise fees on such Discretionary Service Charges is an issue, the City will take an affirmative position supporting the 100% recovery of such franchise fees by Oncor and; (iii) in the event of an appeal of any such regulatory proceeding in which the City has intervened, the City wiI1 take an affirmative position in any such appeals in support of the 100% recovery of such fi'anchise fees by Oncor. (3) City agrees that it will take no action, nor cause any other person or entity to take any action, to prohibit the recovery of such franchise fees by Oncor. SECTION2: In all respects, except as specifically and expressly amended by this ordinance, the existing effective franchise ordinance heretofore duly passed by the governing body of the City and duly accepted by Oncor shall remain in full force and effect according to its terms until said franchise ordinance terminates as provided therein. SECTION3: This ordinance shall take effect upon its final passage and Oncor's acceptance. Oncor shall, within thirty (30) days from the passage of this ordinance, file its written acceptance of this ordinance with the Office of the City Secretary in substantially the following form: To the Honorable Mayor and City Council: Oncor Electric Delivery Company, acting by and through the undersigned authorized officer, hereby accepts in all respects, on this the ~ day of Page 2 of 3 , 20 , Ordinance No. mending the current electric franchise between the City and Oncor and the same shall constitute and be a binding contractual obligation of Oncor and the City. Oncor Electric Delivery Company By Vice President SECTION 4. It is hereby officially found and determined that the meeting at which this Ordinance is passed is open to the public as required by law and that public notice of the time, place and purpose of said meeting was given as required. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF , TEXAS, this the day of ,2002, at which meeting a quorum was present and voting. ATTEST: Mayor City Secretary APPROVED AS TO FORM: City Attorney Page 3 of 3 EXHIBIT B ORDINANCE NO. AN ORDINANCE AMENDING THE EXISTING GAS FRANCHISE BETWEEN THE CITY AND TXU GAS COMPANY, TO PROVIDE FOR A DIFFERENT CONSIDERATION AND TO AUTHORIZE THE LEASE OF FACILITIES WITHIN THE CITY'S RIGHTS-OF-WAY; PROVIDING AN EFFECTIVE DATE; PROVIDING FOR ACCEPTANCE BY TXU GAS COMPANY; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE IS PASSED IS OPEN TO THE PUBLIC AS REQUIRED BY LAW. WHEREAS, TXU Gas Company (hereinafter called "TXU Gas") is, through its TXU Gas Distribution division, engaged in the business of furnishing and supplying gas to the general public in the City, including the transportation, delivery, sale, and distribution of gas in, out of, and through the City for all purposes, and is using the public streets, alleys, grounds and rights- of-ways within the City for that purpose under the terms of a franchise ordinance heretofore duly passed by the governing body of the City and duly accepted by TXU Gas; and WHEREAS, the City and TXU Gas desire to amend said franchise ordinance to provide for a different consideration and to authorize the lease of facilities within the City's rights-of- way; OF NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY , TEXAS: that SECTION 1: The existing gas franchise ordinance between the City and TXU Gas Company is amended as follows: Effective January 1, 2002, the consideration payable by TXU Gas for the rights and privileges granted to TXU Gas by the franchise ordinance heretofore duly passed by the governing body of this City and duly accepted by TXU Gas is hereby changed to be four percent (4%) of the Gross Revenues, as defined in Section 1.B. below, received by TXU Gas. "Gross Revenues" shall mean all revenue derived or received, directly or indirectly, by the Company from or in connection with the operation of the System within the corporate limits of the City and including, without limitation: (1) all revenues received by the Company from the sale of gas to all classes of customers within the City; (2) (3) (4) (5) all revenues received by the Company from the transportation of gas through the pipeline system of Company within the City to customers located within the City; the value of gas transported by Company for Transport Customers through the System of Company within the City ("Third Party Sales"), with the vahie of such gas to be reported by each Transport Customer to the Company, provided, however, that should a Transport Customer refuse to furnish Company its gas purchase price, Company shall estimate same by utilizing TXU Gas Distribution's monthly industrial Weighted Average Cost of Gas, as reasonably near the time as the transportation service is performed; and "Gross revenues" shall include: (a) other revenues derived from the following 'miscellaneous charges': charges to connect, disconnect, or reconnect gas within the City; ii. charges to handle returned checks from consumers within the City; nl. such other service charges and charges as may, from time to time, be authorized in the rates and charges on file with the City; and iv. contributions in aid of construction" ("CIAC"); (b) revenues billed but not ultimately collected or received by the Company; and, (c) gross receipts fees. "Gross revenues" shall not include: (a) the revenue of any Person including, without limitation, an affiliate, to the extent that such revenue is also included in Gross Revenues of the Company; (b) sales taxes; and (e) any interest income earned by the Company; and Page 2 of 5 (d) all monies received from the lease or sale of real or personaI property, provided, however, that this exclusion does not apply to the lease of facilities within the City's right of way unless the lessee is also an entity that pays franchise fees to the City. Calculation and Payment of Franchise Fees Based on CIAC The franchise fee mounts based on "Contributions in aid of Construction" ("CIAC') shall be calculated on an annual calendar year basis, i.e., from January 1 through December 31 of each calendar year. (2) The franchise fee amounts that are due based on CIAC shall be paid at least once annually on or before April 30 each year based on the total CIAC recorded during the preceding calendar year. Effect of Other Municipal Franchise Ordinance Fees Accepted and Paid by TXU Gas (1) If TXU Gas should at any time after the effective date of this Ordinance agree to a new municipal franchise ordinance, or renew an existing municipal franchise ordinance, with another municipality, which municipal franchise ordinance determines the franchise fee owed to that municipality for the use of its public rights-of-way in a manner that, if applied to the City, would result in a franchise fee greater than the amount otherwise due City under this Ordinance, then the franchise fee to be paid by TXU Gas to City pursuant to this Ordinance shall be increased so that the amount due and to be paid is equal to the amount that would be due and payable to City were the franchise fee provisions of that other franchise ordinance applied to City. (2) The provisions of this Subsection D apply only to the amount of the franchise fee to be paid and do not apply to other franchise fee payment provisions, including without limitation the timing of such payments. TXIJ Gas Franchise Fee Recovery Tariff TXU Gas may file with the City a tariff amendment(s) to provide for the recovery of the franchise fees under this amendment. (2) City agrees that (i) as regulatory authority, it will adopt and approve the ordinance, rates or tariff which provide for 100% recovery of such franchise fees as part of TXU Gas' rates; (ii) if the City intervenes in any regulatory proceeding before a federal or state agency in which the Page 3 of 5 recovery of TXU Gas' franchise fees is an issue, the City will take an affirmative position supporting 100% recovery of such franchise fees by TXU Gas and; (iii) in the event of an appeal of any such regulatory proceeding in which the City has intervened, the City will take an affirmative position in any such appeals in support of the 100% recovery of such franchise fees by TXU Gas. (3) City agrees that it will take no action, nor cause any other person or entity to take any action, to prohibit the recovery of such franchise fees by TXU Gas. Fo Lease of Facilities Within City's Rights-of-Way. TXU Gas shall have the right to lease, license or otherwise grant to a party other than TXU Gas the use of its facilities within the City's public fights-of-way provided: (i) TXU Gas first notifies the City of the name of the lessee, licensee or user; the type of service(s) intended to be provided through the facilities; and the name and telephone number of a contact person associated with such lessee, licensee or user and (ii) TXU Gas makes the franchise fee payment due on the revenues from such lease pursuant to Sections I.A. and I.B. of this Ordinance. This authority to Lease Facilities Within City's Rights-of-Way shall not affect any such lessee, licensee or user's obligation, if any, to pay franchise fees. SECTION 2: In ail respects, except as specifically and expressly amended by this ordinance, the existing effective franchise ordinance heretofore duly passed by the governing body of the City and duly accepted by TXU Gas shall remain in full force and effect according to its terms until said franchise ordinance terminates as provided therein. SECTION 3: This ordinance shall take effect upon its final passage and TXU Gas' acceptance. TXU Gas shall, within thirty (30) days from the passage of this ordinance, file its written acceptance of this ordinance with the Office of the City Secretary in substantially the following form: To the Honorable Mayor and City Council: TXU Gas Distribution, a division of TXU Gas Company, acting by and through the undersigned authorized officer, hereby accepts in all respects, on this the day of , 20 , Ordinance No. amending the current gas franchise between the City and TXU Gas and the same shall constitute and be a binding contractual obligation of TXU Gas and the City. Page 4 of 5 TXU Gas Distribution A division of TXU Gas Company By Vice President SECTION 4. It is hereby officially found and determined that the meeting at which this Ordinance is passed is open to the public as required by law and that public notice of the time, place and purpose of said meeting was given as required. PASSED AND APPROVED BY THE , TEXAS, this the day of a quorum was present and voting.. CITY COUNCIL OF THE CITY OF ,2002, at which meeting Mayor ATTEST: City Secretary APPROVED AS TO FORM: City Attorney Page 5 of 5 CITY OF DENTON, TEXAS, et al., Plaintiffs, VS. TXU ELECTRIC COMPANY, et al., NO. 009383 IN THE DISTRICT COURT DALLAS COUNTY, TEXAS Defendants. 134TM JUDICIAL DISTRICT AGREED ORDER OF DISMISSAL WITH PREJUDICE AS TO THE CITY OF DENTON On this day, came on to be considered the above-referenced cause and Plaintiff, the City of Denton, and Defendants, by and through their respective attorneys of record, announced that the parties have compromised and settled their disputes and moved that this action be dismissed with prejudice as to the City of Denton; IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the above-styled and numbered cause of action is dismissed with prejudice to the refiling of same as to the City of Denton, that all costs incurred are taxed against the party incurring same, and that any and all relief requested by the City of Denton not expressly granted herein is denied. SIGNED this__dayof 2002. JUDGE PRESIDING APPROVED AND AGREED AS TO FORM AND CONTENT: STRASBURGER & PRICE, L.L.P. By: Kevin J. Maguire State Bar No. 12827900 ATTORNEY FOR PLAINTIFF HUNTON & WILLIAMS By: David P. Poole State Bar No. 16123750 ATTORNEY FOR DEFENDANTS TXU ELECTRIC COMPANY TXU GAS COMPANY AND TXU CORP. AGREED ORDER OF DISMISSAL - Page 2 Agenda 02-021 06/18/02 #48 AGENDA INFORMATION SHEET AGENDA DATE: June 18, 2002 DEPARTMENT: Legal Department CM/DCM/ACM: Herb Prouty, City Attorney SUBJECT: Consider and adopt an ordinance appointing Municipal Judge, Robin Ramsay, as Administrative Law Judge for discovery purpcses and delegating to the Administrative Law Judge the authority to prepare discovery guidelines in the proceeding emitled "TXU Gas Distribution's Statement of Intent to increase Rates in the North Texas Metroplex Distribution System"; providing the Administrative Law Judge the powers set forth in the body of this ordinance; and providing an effective date. BACKGROUND: On March 1, 2002, TXU Gas Distribution filed its Statement of Intent to increase rates in the North Texas Metroplex Distribution System, a system composed of 107 cities in the Metroplex, including the City of Denton. Subsequent to the filing of that Statement of Intent, on March 26, 2002, the City of Denton suspended the effective date of the rate increase for 90 days until July 5, 2002 ard authorized Spencer Station Generating Company, L.P. (Spencer) to imervene in the rate proceeding. TXU Gas Distribution has requested discovery from both the City of DeNon and Spencer. The City and Spencer have responded to TXU Gas Distribution's reqtest. But Spencer has requested that the City make a ruling to deny TXU's Request for information (RFi) to Spencer. Discovery in gas rate cases at the municipal level is extremely rare. As a result of this, the City of Denton has no discovery guidelines, it has not adopted a procedure to deal with such discovery requests or to make rulings on discovery disputes. There is a need to establish discovery guidelines in this proceeding and to appoint a qualified person to resolve any discovery disputes. The ordinance before you would appoim Municipal Judge, Robin Ramsay, as Administrative Law Judge to develop discovery guidelines and to resolve discovery disputes in this proceeding. OPTIONS AND RECOMMENDATIONS: Adopt the ordinance appoiming Municipal Judge Robin Ramsay as Administrative Law Judge and giving him the power to prepare discovery guidelines. Decline to adopt the ordinance and allow discovery to proceed without any guidelines or a qualified person to resolve any discovery disputes. We recommend that you choose Option 1 and appoim Municipal Judge Robin Ramsay to serve as Administrative Law Judge to develop discovery guidelines and to resolve any discovery disputes in the proceeding emitled, "TXU Gas Distribution Statement of Iment toIncrease Rates in the North Texas Metroplex Distribution System." Judge Ramsay has graciously agreed to serve in this capacity. As Municipal Judge and a practicing attorney, he is well qualified to serve S:\Our DocmmentshMiscellaneous\02\agenda infbrmarion sheer mlministrarive law judge, doc in this role. By appointing Judge Ramsay as Admhistrative Law Judge, you avoid any appearance of bias by deciding these discovery disputes while at the same time being the ultimate decision maker on the request to change rates at the municipal level. Robin will also prepare and issue discovery guidelines generally consistent with procedural orders of the State Office of Administrative Hearings. By taking these actions, you have provided a means for resolving discovery matters in this proceeding, which is consistent with the procedure utilized by state agencies in similar rate cases such as gas rate cases before the Texas Railroad Commission. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS): None. FISCAL INFORMATION: There will be no fiscal impact as a result of Judge Ramsay assuming position of Administrative Law Judge to handle discovery matters in this proceeding. Respectfully submitted, Herb Prouty, City Attorney Page 2 S:\Our DocamentskMiscellaneous\02\agenda infbrmarion sheer mlministrarive law judge, doc DISCOVERY GUIDELINES 1. Forms and Scope of Discovery · Scope--Discovery is permitted into any matter relevant to the subject matter of the proceeding, which is not privileged or exempted under the Texas Rules of Evidence, TRCP, or other law or rule. Stipulations--Discovery guidelines may be varied by the written agreement of the parties. Limits on Discovery and Protective Orders Limits--The ALJ may, upon written notice to all parties, limit or amend the discovery guidelines for good cause. Protective Orders--A party shall seek a Protective Order from the ALJ in the event it intends to claim any information or material subject to discovery is confidential or proprietary. That party shall file a Proposed Protective Order or Agreement with the ALJ within five business days of making the first such claim. Parties have five days from that date to comment on the proposal. The Presiding Officer will issue a Protective Order based on those comments. 3. Requests for Information · Making Requests for Information (RFIs)--Discovery may include, but is not limited to, requests for information, data, electronic files or spreadsheets, materials, documents, tangible things, knowledge, impressions, opinions, admissions, inspections, or the production of documents or things. · Responding to RFIs--A party shall respond to all RFIs within 20 days of receipt of the RFI unless an objection is pending or has been granted. Each response must identify the preparer(s) and a sponsoring witness. Each RFI shall be answered separately. Documents need not be produced in response to an RFI if such documents are publicly available from local records. Responses shall be filed under oath unless the responding party stipulates in writing that RFIs can be treated by all parties as if the responses were filed under oath. · Objections-- Objections are due within 10 days of receipt of the RFI. The responding party shall negotiate in good faith concerning any discovery dispute. All grounds for not responding shall be stated in the objection. If an objection is based on privilege or exemption, the responding party shall, within two working days of the filing of such objection, provide a public index that provides, for each document, a full and complete description of the claimed privilege or exemption. · Motions to Compel--Motions to compel are due no later than 5 working days after the objection is received. Response to Motions to Compel shall be filed within 5 working days after receipt of the motion. · In Camera Inspection--In the event that a party objects to discovery based on a claim of privilege or exemption, that party must request an in camera inspection and provide the documents under seal for review to the ALJ. Such request along with related documents shall be filed within three working days of the receipt of the motion to compel. Production of Voluminous Materials--If the response to a particular RFI consists of 100 pages or less, then the response is not voluminous and shall be filed in full. If the response to a particular RFI exceeds 100 pages, then the response is voluminous and need not be filed. The responding party shall make available all voluminous materials in response to RFIs at a location in Austin. If the requested voluminous materials exceed eight linear feet, then the party shall make the materials available where the materials are located. The party providing voluminous materials shall file with its RFI responses a detailed index of the voluminous materials responsive to a particular RFI. This index shall provide sufficient information to enable the party seeking discovery to identify the documents in that voluminous response with reasonable particularity. The index shall provide at a minimum the date, title, description, file number, preparer, and length for each document included in the voluminous materials. Duty to Supplement--A responding party is under a continuing duty to supplement its RFI responses as soon as that party acquires information that its prior responses are incorrect or incomplete. The responding party shall amend its prior responses within five working days of acquiring such information. 4. Sanctions · Causes for Imposition of Sanctions--Sanctions may be imposed by the ALJ for bad faith, failure to obey a lawful regulatory order, harassment, abuse, delay, or resisting the discovery process. · Types of Sanctions--Sanctions may include, but are not limited to, charging all or any part of the expenses of discovery against the offending party or its representative; holding that designated facts are admitted; striking pleadings; requiring the payment of reasonable expenses including attorney fees, incurred by other parties because of the sanctioned behavior; excluding evidence; or as determined by the ALJ. · Procedure--Motions for sanctions may be filed at any time or may be initiated sua sponte by the ALJ. A hearing on the motion shall be held. Any sanction imposed by the ALJ shall be stayed to allow the party to appeal the imposition of the sanction to the City Council unless good cause exists for not granting the stay. 2 S:\O~c Docm:nents\Or dinances\02kAckninist carive Judge.doc ORDINANCE NO. AN ORDINANCE APPOINTING MUNICIPAL JUDGE, ROBIN RAMSAY, AS ADMiNiSTRATiVE LAW JUDGE FOR DISCOVERY PURPOSES AND DELEGATING TO THE ADMiNiSTRATiVE LAW JUDGE THE AUTHORITY TO PREPARE DISCOVERY GUIDELINES iN THE PROCEEDING ENTITLED "TXU GAS DISTRIBUTION STATEMENT OF INTENT TO iNCREASE RATES iN THE NORTH TEXAS METROPLEX DISTRIBUTION SYSTEM"; PROViDiNG THE ADMiNiSTRATiVE LAW JUDGE THE POWERS SET FORTH IN THE BODY OF THIS ORDINANCE; AND PROViDiNG AN EFFECTIVE DATE. WHEREAS, TXU Gas Distribution has filed several discovery requests in the form of Requests for information in the proceeding entitled, "TXU Gas Distribution's Statement of Intent to Increase Rates in the North Texas Metroptex Distribution System"; and WHEREAS, the intervener, Spencer Station Generating Company, L.P. has asked the City to deny TXU's discovery requests to it and there is a need for the appointment of an administrative law judge to handle such discovery disputes and to recommend discovery guidelines in this proceeding; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: SECTION 1. That Municipal Judge, Robin Ramsay, is hereby appointed Administrative Law Judge for discovery purposes in the proceeding entitled, "TXU Gas Distribttion's Statement of Intent to Increase Rates in the North Texas Metroptex Distribution System." SECTION 2. That the Administrative Law Judge so appointed shall have the power to set hearings, receive evidence, and make final rulings in all discovery maters concerning this proceeding, to prepare and issue discovery guidelines generally consistent with procedural orders issued by the State Office of Administrative Hearings, to set discovery schedules for the parties, and is further delegated any and all olher powers necessary to carry out these duties. SECTION 3. That the City Secretary is hereby directed to send copies of this ordinance to Autry Warren, Rates Manager, TXU Gas Distribution, 1601 Bryan Street, Dallas, TX 75201- 3402 and G. Gait G. Gait Watkins of Akin, Gump, Strauss, Hauer & Field, 818 Congress Ave., Suite 1900, Austin, TX 78701 SECTION 4. This Ordinance shall become effective immediately upon its passage and approval. S:\O~c Doctmaents\Or dinances\02kAckninis~carive Judge.doc PASSED AND APPROVED this the day of ,2002. MARK BURROUGHS MAYOR PRO TEM ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 Agenda 02-021 06/18/02 #49 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: DIRECTOR: June 18, 2002 Planning & Developmem Dave Hill, 349-8314 SUBJECT -A02-0001: (Loop 288 & Locust) Consider adoption of an ordinance on first reading to volumarily annex approximately 345.5 acres of land generally located north of Loop 288, east of Bonnie Brae, and west of Locust in the northern section of the City of DeNon extraterritorial jurisdiction (ET J). (A02-0001) BACKGROUND Applicam: Visiquest Phoenix, AZ A volumary annexation proceeding is being considered by the City of DeNon for the Loop 288 & Locust annexation. In accordance with the City's annexation policy plan, approved in June 1993, the City will "access on a case by case basis" the annexation of areas in the ETJ when significam developmems are proposed. · On June 12, 2002, the Planning and Zoning Commission will hold a public hearing to consider a recommendation to City Council regarding the annexation request. · On May 21, 2002, City Council held the second public hearing. No one spoke in opposition. · On May 14, 2002, City Council held the first public hearing. No one spoke in opposition. On May 6, 2002, Mark Donaldson, Carter and Burgess Inc., submitted a comprehensive plan application and zoning application, which will be scheduled for City Council at a future date. On June 12, 2002, the Planning and Zoning Commission will hold a public hearing to consider the annexation and zoning. On April 12, 2002, Mark Donaldson, Carter and Burgess Inc., submitted a petition for voluntary annexation. Developmem potemial for the site includes single-family dwelling units, multi-family dwelling units, commercial developmem, a park and a high school. Pre-design applications for developmem were submitted on August 31, 2001 and May 25, 2002. The applicants met with the Development Review Committee to review and discuss the proposed developmem, to make a determination of what information and studies may be required for the zoning and platting application submittal, and to receive additional information requiremems necessary to facilitate processing of the plat application. Developmem of the property is subject to the requiremems and procedures of the DeNon Development Code. · The subject property is located in the extra territorial jurisdiction and is not zoned at this time. The property is undeveloped at this time. The Comprehensive Plan idemifies this property to be within the "Neighborhood Cemers". The applicam is proposing to develop residemial and commercial uses, including a park and a high school. The applicam has submitted a separate comprehensive plan amendmem and zoning application. Separate public hearings will be held. OPTIONS 1. Proceed with annexation as presented. 2. Proceed with annexation with changes. 3. Discontinue annexation process. RECOMMENDATION Staff recommends that the annexation proceed as scheduled, finding that: 1. The need to manage and coordinate developmem in an orderly manner is a significam city objective that the City of DeNon will pursue. 2. The annexation tract also contains acreage designated as Environmentally Sensitive Area, which have very importam water quality and flood comrol implications. The City of DeNon intends to preserve these areas to act as a natural flood channels, rather than allowing filling of floodplains and paying for expensive concrete-lined channels at a later date. ESTIMATED PROJECT SCHEDULE The annexation process will be completed by August 6, 2002 (see Attachmem 2). PRIOR ACTION/REVIEW Application Date DRC Review 1 st CC Public Hearing 2nd CC Public Hearing Planning & Zoning Public Hearing 1 st Reading of Ordinance April 12, 2002 April 25, 2002 May 14, 2002 May 21, 2002 June 12, 2002 June 18, 2002 FISCAL INFORMATION Developmem of this property will increase the assessed value of the city, county, and school district. will require no short-term public improvemems that are the responsibility of the city. It ATTACHMENTS 1. Service Analysis 2. Location Map 3. Public Notification (Property Owner Notification Map and Property Owner Responses) 4. Annexation Schedule 5. Draft Annexation Ordinance Prepared by: Dedra Den6e Ragland, AICP Small Area Planning Manager Respectfully submitted: Dougla[ S. Powell AICP Director of Planning and Development ATTACHMENT 1 Service Analysis by Department Police. When Fully developed as proposed, additional police personnel will be needed. It is anticipated that at a minimum, 2 additional police officers and a school resource office (if proposed high school is built) will be needed. While the currem police departmem facility has no room for expansion, a new facility will not be needed as a result of the annexation. Engineering and Transportation. The following roads will be impacted by the proposed annexation and developmem in terms of needed improvemems or upgrades: Name and location Bonnie Brae (to Hwy 77) N Locust St (to south of Windsor) Highway 77 Type of Improvement Capacity* & Pavemem Capacity* Capacity* Approximate Cost up to $600,000 up to $2,000,000 $13,000,000 At this time, Highway 77 is being upgraded from a two lane to a four lane divided highway, which is funded by TxDOT. *As proposed, this developmem will be required to submit a Traffic Impact Analysis (TIA). Those improvemems (in part or in whole) noted above will be required and Funded by the developmem as recommend by the TIA Additional equipmem and facilities will also be needed as a specific result of this annexation and developmem. While no additional facility will be required at this time, the operation and maimenance funds for Streets & Drainage will need to be increased by $ 400,000 each to handle additional workloads. Fire. The main concern of this annexation is the availability of water for firefighting purposes. Stations 5 and 4 will service this area with assistance from Station 1. Parks and Recreation. Curremly, there are no city parks within the proposed annexation. The closest DeNon Park properties are North Lakes Park and Evers Park, which are approximately 1.5 miles away. Residems will be able to use existing City of DeNon parks, facilities and programs. The 2000 Park and Recreation Master Plan indicates a need for community and neighborhood parks in this general area. Population projections propose 3,274 people living in 1,512 housing units. Based on service standards set in the Park and Recreation Master Plan, 11 acres or more of new parkland will be needed for neighborhood parks. If additional park facilities are developed to serve this area, $103,620 in additional Funding and 2 new staff members will be needed to properly serve this area. Library. There is no direct impact of this annexation and proposed development on library services. Anticipated service demands can be met using existing materials, facilities and personnel. Solid Waste. Residential and commercial solid waste services are available to the proposed area. Solid waste refuse collection services will be provided immediately to the newly annexed area upon the effective date of the annexation. Water. There are no existing City of Denton water lines in the proposed annexation area. The area lies within the City of Denton's Certificate of Convenience and Necessity (CCN) service area for both water and wastewater service. The nearest available water lines that could be extended by the developer to serve the property are an existing 12" waterline on North Locust (FM 2164) approximately 2000 ft south of Loop 288 and a 16" waterline at the northeast corner of the UNT property (old Texas instruments facility). The water distribution system upgrade program required to provide for the introduction of water supplies from the new Lake Ray Roberts Water Treatment Plant also calls for the installation of a 42"/36" transmission line to be installed along Loop 288 from Sherman Drive (FM 428) to the 16" line at the UNT property. This project is funded in the FY 2002 Water Utilities Capital improvements Program (CiP) and the city has recently hired Freese and Nichols, inc., to do the engineering design, plans and specifications and to provide inspection services for the project. The current schedule for the project is for plans to be released for bids during the summer of 2002 with completion of construction scheduled for the spring of 2003. This project will improve the water supply capacity in the area sufficient to support the proposed land uses in the proposed annexation area and reduce the length of the extension of waterlines necessary to serve the property. Waste Water. There are no existing City of Denton sanitary sewer lines in the proposed annexation area. The proposed area to be annexed is part of a larger tract with a total acreage of approximately 750 acres. Staff has been working with the developer Wator ! Sewor Map ~.. and their engineer to determine the level of service required and to identify the existing city sewer lines that can accommodate the wastewater flows to be generated from the proposed annexation area as well as the entire 750- acre tract. Several meetings have been held to determine possible connection points in the existing wastewater collection system. Staff has requested the developer's engineer to provide projected phasing and estimated time of completion of each phase, the projected land use, and wastewater loads from each phase. A meeting with the engineer is scheduled on Thursday, May 2, where the engineer will provide the above requested information. With this wastewater loading data, the Hydroworks Model used to develop the Wastewater Collection System Master Plan will be used to determine the impact of the proposed development on the downstream wastewater collection system. Curremly there are no existing sewer lines on the north side of the Loop 288 to serve the proposed developmem. There is an existing 18-inch sewer line in the Pecan Creek basin that was constructed to serve the TI facility. This 18-inch sewer line is south of the Loop 288. The proposed developmem drains naturally to the Clear Creek basin. There are no existing city sewer facilities in the Clear Creek basin. The proposed developmem will need a lift station to lift all wastewater flows imo the Pecan Creek or a combination of Pecan Creek and Cooper Creek basins. However, the density proposed for the developmem creates a challenge to accommodate all of the wastewater flows in the existing sewer system downstream of the development. Computer modeling of the wastewater system will provide the direction. Drainage. Since the Comprehensive Plan designates this area as Neighborhood Cemers, denser developmem patterns are allowed. Dense developmems usually result in increased impervious cover. Mitigation measures may be needed to address drainage. The Environmemally Sensitive Areas map shows that the northwestern most portion lies within a stream buffers area. This property may be affected by the 100-year floodplain in that area. The stream buffer areas shall remain natural and not be disturbed per the Denton Development Code and Drainage Criteria Manual. 100-year water surface elevations shall not increase as a result of any reclamation of the floodplain. Other floodplain criteria will apply. Electric. DeNon Municipal Electric (DME) has an existing main line circuit in the TMPA easemem running through the property. If property develops as proposed, DME would have to extend a main line on Bonnie Brae from Loop 288. DME is planning to construct a distribution substation at the Denton North Interchange. ATTACHMENT 2 Maps NORTH Location Map ~ ET Neighborhood Center Proposed Annexation Area (345.5 Acres) ETJ ETJ Neighb )rhood Center Former Te×a~ In;~rument~ Building Scale: None ATTACHMENT 3 Public Notification NORTH Notification Map Scale: None Public Notification Date: 200' Legal Notices* sent via Certified Mail: 500' Courtesy Notices* sent via 1st Class Mail: Number of responses to 200' Legal Notice · In Opposition: 0 · In Favor: 2 · Neutral: 0 June 1, 2002 2 Percent of land within 200' in opposition: 0 % *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 Property Owner Responses Property Owner Name In favor Comments and Address /opposed* Lawrence and Jeanine Kuhlken In favor No comments provided. 11446 Hwy 16 North Fredericksburg TX 78624 Vandalar Partners In favor No comments provided. 11446 Hwy 16 North Fredericksburg TX 78624 *A copy of the original notice can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 4 ANNEXATION SCHEDULE FOR Loop 288 & Locust Annexation Area Tuesday, May 14, 2002 City Council conducts first public hearing Tuesday, May 21, 2002 City Council public hearing conducts second Wednesday, June 12, 2002 Planning and Zoning Commission public hearings - make a recommendation to City Council regarding the proposed annexation and the proposed zoning. Tuesday, June 18, 2002 First reading of annexation ordinance - City Council by a 4/5th vote institutes annexation proceedings. Tuesday, August 6, 2002 Second reading and adoption of annexation ordinance and public hearing for zone change request- City Council by a 4/5th vote takes final action on annexation. City Council by simple majority vote takes final action of zone change request. 10 ATTACHMENT 5 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, ANNEXING APPROXIMATELY 345.5 ACRES OF LAND CONTIGUOUS AND ADJACENT TO THE CITY OF DENTON, TEXAS, LOCATED NORTH OF LOOP 288, EAST OF BONNIE BRAE, AND WEST OF LOCUST IN THE NORTHERN SECTION OF THE CITY OF DENTON EXTRATERRITORIAL JURISDICTION IN THE E. PIZANO SURVEY, ABSTRACT NUMBER 994, DENTON COUNTY, TEXAS, AND BEING PART OF THE CALLED 7.597 ACRE TRACT DESCRIBED IN THE DEED FROM ONE LONGHORN LAND, L.L.C., TO 1- 35 CRAWFORD ROAD PARTNERS RECORDED BY COUNTY CLERK'S FILE NUMBER 98-R0077377 REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS; APPROVING A SERVICE PLAN FOR THE ANNEXED PROPERTY; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. (A02-0001) WHEREAS, the property owner has petitioned for the annexation of approximately 345.5 acres of land described herein; and WHEREAS, on June 12, 2002, the Planning and Zoning Commission recommended approval of the petition for annexation; and WHEREAS, public hearings were held in the Council Chambers on May 14, 2002, and May 21, 2002, (both days being on or after the 20th day but before the 40th day before the date of the institution of the proceedings) to allow all interested persons to state their views and present evidence bearing upon this annexation; and WHEREAS, annexation proceedings were instituted for the property described herein by the introduction of this ordinance at a meeting of the City Council on June 18, 2002; and WHEREAS, this ordinance has been published in full one time in the official newspaper of the City of Demon on June 23, 2002, after annexation proceedings were instituted and 30 days prior to City Council taking final action, as required by City Charter; and WHEREAS, the City Council finds that the annexation will allow the city to ensure development consistent with The Denton Plan; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The tract of land described in Exhibit "A", attached hereto and incorporated by reference, is annexed to the City of Demon, Texas. SECTION 2. The service plan attached as Exhibit "B", and incorporated by reference, which provides for the extension of municipal services to the annexed property, is approved as part of this ordinance. The service plan was made available for public inspection and explanation to the inhabitams of the area being annexed at the above described public hearings. 11 SEC'ITION 3. Shotdd m:'~y part of this ordinance be held illegal tbr any reason, the ]:~o[ding shall not alFect the remaining portion of this ordinance and the Cily Council hereby declares il to be its prat, ese to annex to ~he City of Denton all the rea[ property described in Exhibit '~A" regardless of whether any other pm1 of the described property is hereby efl¥ctively annexed to the City. If any part of tl~e rea[ property annexed is already included within the city ~:hnits of the City of DcqltOl'l or within the limits of any other city, town or village, or :is not within the City' of Denton's jurisdiction to annex, the same is hereby excluded fi'om the ten'itory annexed as fully as if the exck~ded area were expressly described in this ordinance. SECTION 4: This ordinance shall become effective hnmediately upon its passage and approval. PASSED AND APPRO'VED this the day of ,2002. EU LIN E BROCK, MAY OR A T'17 E ST: J ENN IFER WAiLTERS, CITY SECRE I"A I:¢Y BY': APPROVED AS '17'O iLEGAL FORM: iHERB. ERTL. iPROUI'Y. CIFY ATTORNEY BY: 12 EXHIBIT "A" BEING A 345.251 ACRE TRACT OF LAND SITUATED IN THE VICTOR E. GAILOR SURVEY, ABSTRACT NO. 452, MORRIS MAY SURVEY, ABSTRACT NO. 807, J.S. COLLARD SURVEY, ABSTRACT NO. 297, AND ALEXANDER WHITE SURVEY, ABSTRACT NO. 1406, DENTON COUNTY, TEXAS, AND BEING PART OF A CALLED 299.738 ACRE TRACT OF LAND, CONVEYED TO LARRY E. KUHLKEN AND JEANINE WATSON KUHLKEN BY DEED AS RECORDED IN VOLUME 1312, PAGE 146, DEED RECORDS, DENTON COUNTY, TEXAS, AND BEING ALL OF A CALLED 67.871 ACRE TRACT OF LAND, CONVEYED TO LARRY E. KUHLKEN AND WIFE, JEANINE WATSON KUHLKEN BY DEED AS RECORDED IN VOLUME 2360, PAGE 633, DEED RECORDS, DENTON COUNTY, TEXAS, SAID 345.251 ACRE TRACT, WITH REFERENCE BEARING OF NORTH 88 DEGREES 44 MINUTES WEST, BEING THE SOUTH PROPERTY LINE OF SAID 299.738 ACRE TRACT, BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: COMMENCING AT POINT FOR CORNER, BEING THE SOUTHEAST PROPERTY CORNER OF AFORESAID 299.738 ACRE TRACT, AND BEING THE INTERSECTION POINT OF THE WESTERN RIGHT-OF-WAY LINE OF F.M. 2164 WITH THE SOUTH LINE OF THE VICTOR E. GAILOR SURVEY, ABSTRACT NO. 452; THENCE, NORTH 88 DEGREES 44 MINUTES 00 SECONDS WEST, ALONG THE SOUTH PROPERTY LINE OF AFORESAID 299.738 ACRE TRACT, A DISTANCE OF 430.61 FEET TO A POINT FOR CORNER, BEING ON THE WEST LINE OF TRACT 3, ORDINANCE NO. 74-36 (AN ORDINANCE BY THE CITY OF DENTON WHICH ANNEXED TRACTS OF LAND) AND BEING THE POINT OF BEGINNING; THENCE, NORTH 88 DEGREES 44 MINUTES 00 SECONDS WEST, ALONG THE MOST SOUTHERN PROPERTY LINE OF AFORESAID 299.738 ACRE TRACT, WITH A FENCE ON THE SOUTH BOUNDARY LINE OF SAID GAILOR SURVEY, A DISTANCE OF 4420.36 FEET TO A POINT FOR CORNER, BEING IN THE MIDDLE OF AN ABANDONED ROAD; THENCE, NORTH 01 DEGREES 08 MINUTES 19 SECONDS EAST, ALONG A WEST PROPERTY LINE OF AFORESAID 299.738 ACRE TRACT AND WITH A FENCE IN THE MIDDLE OF SAID ABANDONED ROAD, A DISTANCE OF 1186.21 FEET TO A POINT FOR CORNER; THENCE, NORTH 88 DEGREES 24 MINUTES 04 SECONDS WEST, ALONG A SOUTH PROPERTY LINE OF AFORESAID 299.738 ACRE TRACT AND WITH A FENCE, A DISTANCE OF 1731.81 FEET TO A POINT FOR CORNER, BEING THE SOUTHWEST PROPERTY CORNER OF AFORESAID 299.738 ACRE TRACT AND BEING THE SOUTHEAST PROPERTY CORNER OF AFORESAID 64.871 ACRE TRACT; THENCE, ALONG THE SOUTH PROPERTY LINE OF AFORESAID 64.871 ACRE TRACT, THE FOLLOWING COURSES AND DISTANCES: NORTH 88 DEGREES 19 MINUTES 18 SECONDS WEST, WITH A FENCE, AND ALONG THE NORTH PROPERTY LINE OF A TRACT OF LAND CONVEYED TO 13 TEXAS INSTRUMENT, INC. BY DEED AS RECORDED IN VOLUME 963, PAGE 54, DEED RECORDS, DENTON COUNTY, TEXAS, A DISTANCE OF 601.29 FEET TO A POINT FOR CORNER; NORTH 88 DEGREES 40 MINUTES 14 SECONDS WEST, WITH A FENCE, ALONG THE NORTH PROPERTY LINE OF A TRACT OF LAND CONVEYED TO HOYT AND ELSIE COLE BY DEED AS RECORDED IN VOLUME 769, PAGE 321, DEED RECORDS, DENTON COUNTY, TEXAS, A DISTANCE OF 1092.46 FEET TO A POINT FOR CORNER; SOUTH 70 DEGREES 14 MINUTES 23 SECONDS WEST, A DISTANCE OF 111.57 FEET TO A POINT FOR CORNER; NORTH 88 DEGREES 31 MINUTES 42 SECONDS WEST, A DISTANCE OF 684.77 FEET TO A POINT FOR CORNER, BEING THE SOUTHWEST PROPERTY CORNER OF AFORESAID 64.871 TRACT AND BEING IN THE WEST PROPERTY LINE OF SAID COLE TRACT; THENCE, NORTH 02 DEGREES 02 MINUTES 28 SECONDS EAST, ALONG A WEST PROPERTY LINE OF AFORESAID 64.871 ACRE TRACT, A DISTANCE OF 40.00 FEET TO A POINT FOR CORNER, BEING IN THE NORTH LINE OF THE A. WHITE SURVEY, ABSTRACT NO. 1406 AND THE SOUTH LINE OF THE M. MAY SURVEY, ABSTRACT NO. 807; THENCE, SOUTH 88 DEGREES 31 MINUTES 42 SECONDS EAST, ALONG A PROPERTY LINE OF AFORESAID 64.871 TRACT WITH A FENCE, A DISTANCE OF 624.97 FEET TO A POINT FOR CORNER, BEING ON THE NORTH LINE OF THE J.S. COLLARD SURVEY, ABSTRACT NO. 297 AND BEING ON THE SOUTH LINE OF THE M. MAY SURVEY, ABSTRACT NO. 807; THENCE, ALONG THE WEST PROPERTY LINE OF AFORESAID 64.871 ACRE TRACT, THE FOLLOWING COURSES AND DISTANCES: NORTH 01 DEGREES 06 MINUTES 36 SECONDS EAST, WITH A FENCE, A DISTANCE OF 1764.22 FEET TO A POINT FOR CORNER; NORTH 00 DEGREES 56 MINUTES 33 SECONDS EAST, WITH A FENCE, A DISTANCE OF 141.05 FEET TO A POINT FOR CORNER, BEING THE NORTHWEST PROPERTY CORNER OF AFORESAID 64.871 TRACT; THENCE, SOUTH 88 DEGREES 04 MINUTES 23 SECONDS EAST, ALONG THE NORTH PROPERTY LINE OF AFORESAID 64.871 TRACT WITH A FENCE, A DISTANCE OF 1089.91 FEET TO A POINT FOR CORNER, BEING THE NORTHEAST PROPERTY CORNER OF AFORESAID 64.871 TRACT; THENCE, ALONG THE SOUTH LINE OF ORDINANCE NO. 85-151 (AN ORDINANCE BY THE CITY OF DENTON WHICH ANNEXED A TRACT OF LAND), THE FOLLOWING COURSES AND DISTANCES: 14 SOUTH 20 DEGREES 57 MINUTES 19 SECONDS EAST, ALONG THE EAST PROPERTY LINE OF AFORESAID 64.871 TRACT, A DISTANCE OF 166.42 FEET TO A POINT FOR CORNER, BEING THE NORTHWEST PROPERTY CORNER OF AFORESAID 299.738 TRACT; SOUTH 88 DEGREES 33 MINUTES 55 SECONDS EAST, ALONG A NORTH PROPERTY LINE OF AFORESAID 299.738 TRACT WITH A FENCE, A DISTANCE OF 2454.32 FEET TO A POINT FOR CORNER; SOUTH 00 DEGREES 50 MINUTES 11 SECONDS WEST, ALONG A PROPERTY LINE OF AFORESAID 299.738 ACRE TRACT WITH A FENCE, A DISTANCE OF 992.66 FEET TO A POINT FOR CORNER; SOUTH 88 DEGREES 44 MINUTES 05 SECONDS EAST, ALONG A NORTH PROPERTY LINE OF AFORESAID 299.738 TRACT WITH A FENCE, A DISTANCE OF 4376.80 FEET TO A POINT FOR CORNER, BEING ON THE WEST LINE OF SAiD TRACT 3 OF ORDINANCE NO. 74-36; THENCE, SOUTH 00 DEGREES 29 MINUTES 36 SECONDS WEST, OVER AND ACROSS AFORESAID 299.738 ACRE TRACT AND ALONG SAID WEST LINE OF TRACT 3 OF ORDINANCE NO. 74-36, A DISTANCE OF 1941.04 FEET TO THE POINT OF BEGINNING AND CONTAINING 345.251 ACRES OF LAND, MORE OR LESS. 15 Proposed Annexation Area (345.5 Acres) ETJ Former Texa~ Instrumen~ Building EXHIBIT "B" CITY OF DENTON DRAFT SERVICE PLAN FOR A02-0001 (Loop 288 & Locust) i. AREA ANNEXED The annexation area is located in the northern portion of Denton's Extraterritorial Jurisdiction and comains approximately 345.5 acres generally located north of Loop 288, east of Bonnie Brae and west of Locust. II. INTRODUCTION This service plan has been prepared in accordance with the Texas Local Govemmem Code, Sections 43.021, 43.065, and 43.065(b)-(o) (Vernon 1999, as amended). Municipal facilities and services to the annexed area described above will be provided or made available on behalf of the City in accordance with the following plan. The City shall provide the annexed tract the levels of service, infrastructure, and infrastructure maintenance that are comparable to the levels of service, infrastructure, and infrastructure maintenance available in other parts of the city with similar topography, land use, and population density. iii. AD VALOREM (PROPERTY OWNER) TAX SERVICES Ae Police Protection, Code Enforcement, and Animal Control Police service, including patrolling, response to calls, and other routine functions, will be provided to the property upon the effective date of the annexation using existing personnel and equipmem. If annexed and developed as proposed, additional personnel and equipmem will be needed. Code enforcemem and animal control services will also be provided to the property upon the effective date of the annexation. Be Fire Protection Fire protection (within the limits of existing hydrams) and emergency medical services will be provided to the property upon the effective date of the annexation. The estimated emergency response time in this area is 5 minutes, which is similar to responses for surrounding properties within the city limits. The City of DeNon will provide emergency medical services ("EMS"). Ce Roads and Streets Roads and streets, which have been properly platted, duly dedicated, and accepted by the City of DeNon and/or DeNon County shall be maimained by the City of Denton on the effective date of the annexation. Installation and maintenance of street signs, street lighting and traffic control devices will be maintained by the City of DeNon on the effective date of the annexation. De Parks and Recreation Facilities Parks and recreational facilities in the area to be annexed will begin upon the effective date of the annexation according to the 2000 Parks and Recreation 17 me Fe Ge Master Plan. No parks are curremly located within the proposed annexation area. DeNon neighborhood park facilities are located within reasonably close distance of the proposed annexation area. Residems of the proposed annexation area will be able to use existing City of DeNon park and recreation facilities and programs. Library Services Library services will be made available on the effective date of the annexation on the same basis and at the same level as similar library facilities are maimained throughout the city. Building Inspections and Consumer Health Services Building inspections and consumer health services will be made available on the effective date of the annexation on the same basis and at the same level as similar facilities are maimained throughout the City. Both services are provided on a "cost recovery" basis, and permit fees offset the costs of services delivered. Incomplete construction must obtain building permits from the Building Inspections Department of the City of Denton. Planning and Development Services Planning and developmem services will be made available on the effective date of the annexation. The Planning and Development Department currently services this property by way of administration of Chapter 34 of the Code of Ordinances, concerning subdivision and land developmem regulations. City Council adopted The DeNon Plan, the city's 1999-2020 comprehensive plan, by Ordinance 99-439 on December 7, 1999. The Future Land Use Plan addresses both land in the city and its ETJ, and the subject tracts comain Neighborhood Cemers and 100 year Floodplain/Environmemally Sensitive Areas. The DeNon Plan designates future land uses to manage the quality and quamity of growth by organizing the land use patterns, by matching land use imensity with available infrastructure, and by preserving floodplains as environmemal and open space corridors. The DeNon Plan will be used as a basis for final zoning classifications after the properties are annexed. IV. UTILITY (RATEPAYER) SERVICES Ae Solid Waste Collection The City of DeNon is the exclusive residemial and commercial Solid Waste service provider within DeMon's city limits. The City Ordinance requires Solid Waste services for all residences and commercial businesses located in the City. The City of DeNon Solid Waste Departmem is fully funded through the service fees charged, and receives no funding from city tax revenues. Solid waste refuse collection services will be provided to the newly annexed property immediately upon the effective date of the annexation. To request Solid Waste collection services, please telephone the City of DeNon Customer Service Department at 940-349-8210 and submit an application to initiate service. To obtain City of DeNon Solid Waste schedule, service, and rate 18 information, please telephone the Solid Waste Customer Relations office at 940- 349-8420. Commercial customers are required to complete and submit a Service Agreement to Solid Waste Customer Relations prior to commencing service. Residemial Comainerized Refuse Service Each residemial address will be provided a 96-gallon wheeled refuse cart, which will be serviced one time per week. Residems are required to place their refuse cart(s) at the curb prior to 7:00 a.m. on their collection day. Carts should be placed at the curb for collection no earlier than 6:00 p.m. the evening prior to their collection day. Carts are to be removed from the curb no later than 6:00 a.m. on the day following their collection day. All refuse placed in the cart for collection must be bagged to eliminate wind blown debris and littering. Refuse that is not placed in the cart with the lid closed will not be collected. Additional carts may be provided for an additional monthly charge. Smaller carts are available for a lower monthly charge. Weekly brush service is provided. Recycling services are available. Commercial Refuse Service Each commercial business will be provided with a commercial comainer(s), which are available in a variety of sizes and frequencies of collection, based on the waste generated. All refuse placed in the comainer for collection must be bagged to eliminate wind blown debris and littering. Refuse that is not placed in the comainer with the lid closed will not be collected. Refuse placed omside the comainer is subject to code enforcemem regulations, including potemial fines. Landfill Service The City of DeNon Solid Waste Landfill hours of operation are 7:00 a.m. to 4:00 p.m. Monday through Friday; and 7:00 a.m. to 12:00 p.m. on Saturdays. For information regarding disposal charges, call the Landfill Office at 940-349-7510. Water/Wastewater Facilities The area lies within the City of DeMon's Certificate of Convenience and Necessity (CCN) service area for both water and wastewater service. The nearest available water lines that could be extended by the developer to serve the property are an existing 12" waterline on North Locust (FM 2164) approximately 2000 fl south of Loop 288 and a 16" waterline at the northeast corner of the UNT property (old Texas Instrumems facility). The water distribmion system upgrade program required to provide for the imroduction of water supplies from the new Lake Ray Roberts Water Treatment Plant also calls for the installation of a 42"/36" transmission line to be installed along Loop 288 from Sherman Drive (FM 428) to the 16" line at the UNT property. This project is funded in the FY 2002 Water Utilities Capital Improvemems Program (CIP) and will improve the water supply capacity in the area sufficiem to support the proposed land uses in the proposed annexation area and reduce the length of the extension of waterlines necessary to serve the property. Curremly there are no existing sewer lines on the north side of the Loop 288 to serve the proposed developmem. There is an existing 18-inch sewer line in the 19 Pecan Creek basin that was constructed to serve the TI facility (See Map Exhibit I). This 18-inch sewer line is south of the Loop 288. The proposed developmem drains naturally to the Clear Creek basin. There are no existing city sewer facilities in the Clear Creek basin. The proposed developmem will need a lift station to lift all wastewater flows into the Pecan Creek or a combination of Pecan Creek and Cooper Creek basins. Computer modeling of the wastewater system will provide the means necessary to accommodate all of the wastewater flows in the existing sewer system downstream of the development. Maimenance of water and wastewater facilities in the area to be annexed that are not within the service area of another water or wastewater utility will begin upon the effective date of the annexation using existing personnel and equipment. The City shall provide a level of water and wastewater service, infrastructure, and infrastructure maintenance that is comparable to the level of services, infrastructure, and infrastructure maimenance available in other parts of the city with topography, land use, and population density similar to those reasonably comemplated or projected in the area. Ve VI. Ce Drainage Services Drainage maimenance will be provided to the property upon the effective date of the annexation. The City shall provide a level of drainage services, infrastructure, and infrastructure maintenance that is comparable to the level of services, infrastructure, and infrastructure maimenance available in other parts of the city with topography, land use, and population density similar to those reasonably comemplated or projected in the area. De Electrical Services Denton Municipal Electric is certified by the State and is obligated to provide electric utility service to the annexation area should a request be made by a property owner. Electric utility service will be made available on the effective date of the annexation on the same basis and at the same level as similar facilities are maimained throughout the city. DeNon Municipal Electric is the currem electric service provider for this site. OTHER SERVICES Other services that may be provided by the City, such as municipal and general administration will be made available on the effective date of the annexation. The City shall provide a level of services, infrastructure, and infrastructure maimenance that is comparable to the level of services, infrastructure, and infrastructure maimenance available in other parts of the City with topography, land use, and population density similar to those reasonably comemplated or projected in the area. CAPITAL IMPROVEMENTS PROGRAM (CIP) No new construction of additional water, sewer, street, and drainage facilities is comemplated within the annexed area as a result of this annexation because the annexed area on the date of annexation will have a level of full municipal services 2o equal to other areas within the City having similar characteristics of topography, land use, and population density. Thus, no construction of public improvements is contemplated as a result of this annexation that would begin within two and a half (2 lA) years after the effective date of the annexation. The City shall consider construction of other public improvements as the needs dictate on the same basis as such public improvements are considered throughout the City for areas having similar characteristics of topography, land use, and population density. VII. UNIFORM LEVEL OF SERVICES MAY NOT BE REQUIRED Nothing in this plan shall require the City to provide a uniform level of full municipal services to each area of the City, including the annexed area, if different characteristics of topography, land use, and population density are considered a sufficient basis for providing different levels of service. VIII. TERM This service plan shall be valid for a term of ten (10) years. plan shall be at the discretion of City Council. Renewal of the service IX. AMENDMENTS The service plan may be amended if the City Council determines at a public hearing that changed conditions or subsequent occurrences make this service plan unworkable or obsolete. The City Council may amend the service plan to conform to the changed conditions or subsequent occurrences pursuant to Texas Local Government Code, Section 43.056 (Vernon Supp. 2000). 21 Agenda 02-021 06/18/02 #50 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: June 18, 2002 Planning DepartmeM David Hill, 349-8314 SUBJECT - SP02-0003: (Denton Park 35 Addition) Consider adoption of an ordinance concerning the Alternative DevelopmeM Plan for Chuck E Cheese and DeMon Park 35 developmeM. The approximately 7.5 acre property is in the DowMown Commercial General (DC-G) zoning district and is generally located on the north side of Interstate 35E, approximately 210 feet west of Centre Place and east of Meadow. Alternative site design standards, including stacking, connectivity and pervious parking requiremeMs are proposed. (The Planning and Zoning Commission will make a recommendation on June 12, 2002.) BACKGROUND Applicant: 1-35 Denton Land, LTD. Dallas, Texas The purpose of an alternative developmeM plan is to provide a mechanism for developmeMs that do not literally meet the site design standards as oMlined in the DevelopmeM Code bM nevertheless meet or exceed the objectives of the DeMon Plan and DevelopmeM Code. Alternative DevelopmeM Plans (ADP) provide applicaMs an alternative process for approval of developmeM proposals. Staff can administratively approve developmeMs that conform to the regulations coMained in the DevelopmeM Code. The ADP should not be reviewed on the basis of meeting those standards, but should be reviewed to ensure that it meets the "spirit and intent" of the regulations by differeM means. Staff has provided an analysis as a reference poiM to indicate the relationship between the applicable regulations and the proposed method of alternate compliance. The applicant is proposing to vary from the site design standards and parking requiremeMs established by the DevelopmeM Code. The variations include stacking, iMemal and external connectivity and pervious paving requiremeMs. The applicaM has provided two separate reports justifying their request (AttachmeMs 4 and 5). AttachmeM 1 (Staff Analysis) provides an analysis of each report. OPTIONS 1. Approve with conditions. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission will make a recommendation on June 12, 2002 Staff recommendations to the Planning & Zoning Commission included the following: 1. Staff recommends approval of the Alternative Developmem Plan (ADP) for reduced vehicle stacking length. 2. Staff recommends approval of the ADP relieving the applicant of the need to provide imemal connectivity (between lots) for the emire site. 3. Staff has determined that external connectivity (between the site and adjacem parcels) for the Chuck E Cheese site is not feasible, and is not required. This item does not need to be approved as part of the ADP. 4. Staff does not recommend approval of the request to eliminate pervious parking spaces required for the Chuck E Cheese site because the applicam has not provided information demonstrating alternative compliance. 5. Staff has determined that the issue of external connectivity for the emire DeNon Park 35 cannot be resolved as part of the ADP application since site plans for the remaining parcels have not yet been submitted. The applicam has been informed that an application to appeal staff's interpretation of this requirement may be submitted at a later date. The issue of external connectivity will be addressed in response to Council's instructions received during the June 4, 2002 Quarterly Developmem Code Review work session. ESTIMATED PROJECT SCHEDULE The subject property is platted. Site plan approval is required prior to the issuance of any building permits. PRIOR ACTION/REVIEW The following is a chronology of SP02-0003, commonly known as DeNon Crossing: Application Date - P&Z Date - Neighborhood Meeting June 6, 2002 June 12, 2002 None FISCAL INFORMATION Developmem of this property will increase the assessed value of the city. short-term public improvemems that are the responsibility of the city. ATTACHMENTS 1. Staff Analysis. 2. Location / Zoning Map. 3. Chuck E. Cheese Alternative Development Plan. 4. Chuck E. Cheese Restaurant Alternative Development Plan Request. 5. Denton Park 35 Addition Alternative Development Plan Request. It will require no Prepared by: Larry Reichhart, ASLA, AICP Assistant Director of Planning and Development Respectfully submitted: Douglas S. Powell, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary of Alternative Development Plan Request The applicant is proposing to vary from the site design standards and parking requirements established by the Developmem Code. The variations include stacking, imernal and external connectivity and pervious paving requiremems. The applicam has provided two separate reports justifying their request (Attachmems 4 and 5). Attachmem 4 (Chuck E. Cheese ADP Request) idemifies five variations from the standards, as follows: 1. Subdivision stacking 2. External connectivity 3. Imemal connectivity 4. Parking lot stacking 5. Pervious paving Prior to the submission of the report, the applicam had been told that only the subdivision stacking, imemal connectivity and pervious paving variations apply to this site (see Developmem Code Analysis). External connectivity is not required for the Chuck E. Cheese site because the adjacem site is already platted and developed (Johnny Carino's), and no other opportunities for an external connection exist. Additionally, the request related to parking lot stacking is not required because the code only requires stacking from a public right of way and all the imernal parking lots connect to a private drive. Attachmem 5 (DeNon Park 35 Addition ADP Request) idemifies three variations from the standards: 1. Subdivision stacking 2. Imerior connectivity 3. Exterior connectivity. As staff has informed the applicam, the subdivision stacking is applicable and will be reviewed in relation to the Chuck E. Cheese site plan. Additionally, staff has informed the applicant that if the imernal connectivity issue (associated with the Chuck E. Cheese site) is approved, staff would apply that approval to the whole developmem as the justification and mitigation would be the same for the remaining parcels. Finally, staff has also informed the applicam that the external connectivity issue cannot be resolved through an Alternative Development Plan application for the remaining parcels in the subdivision until and unless site plans are submitted for those parcels. Upon receipt of their application materials, the applicam was comacted and encouraged to combine and simplify the request imo one documem. At that time the applicam was informed that, not withstanding the technical merits of the case, that it was inappropriate to pursue the external connectivity issues, associated with the remaining lots, without the required site plans. Mr. Weldon Davis, the Denton Park 35 applicant, has contested several staff interpretations regarding the issues raised in the ADP application. Existing Condition of Property Property History. February 20, 2002 - The subject property was placed in the Dowmown Commercial General (DC-G) by Ordinance 2002-040. May 8, 2002 - Final Plat (DeNon Park 35 Addition) approved. May 14, 2002 - Special Sign District approved. Prior to the adoption of the Developmem Code, this property was zoned Commercial (C). The property is curremly undeveloped. Adiacent Zoning and Land Uses North: Downtown Residential 2 (DR-2) - Campus Park Student Housing South: Dowmown Commercial General (DC-G) - 1-35 East: Dowmown Commercial General (DC-G) - Cemer Place, Johnny Carino's West: Dowmown Commercial General (DC-G) - Self-Storage Comprehensive Plan Analysis The subject site is located in the "Downtown University Core District" future land use area. This area is imended to have a mix of educational, residemial, retail, office, service, governmem, cultural and entertainment development. It is a place where residents can live, work, learn, and play in the same neighborhood. Development Code Analysis Section 35.13.5 (Alternative Development Plan) states, "An applicant may propose an Alternative Developmem Plan which meets or exceeds the design objectives of this Subchapter but does not meet the standards of this Subchapter. The Alternative Development Plan provides the option to address the design criteria through a flexible discretionary process reviewed by the City Council milizing the Zoning Amendmem Procedure process omlined in Subchapter 3." Section 35.13.5.A. (listed below) idemifies the criteria for approval of an Alternative Development Plan. A. Criteria for Approval. The goals and objectives which must be met, and by which the proposal will be judged are: 1. Preserve Existing Neighborhoods. 2. Assure quality developmem that fits in with the character of DeNon. 3. Focus new development to activity centers to curb strip development and urban sprawl. 4. Ensure that infrastructure is capable of accommodating development prior to the developmem occurring. The proposed plan varies from the standards established by the Developmem Code in 3 general categories: stacking, imemal connectivity and permeable paving. Adequate stacking: Section 35.13.10.A.a. states "A H developments shah provide adequate stacking distance for aH entrances". Sect 4. lC. of the Transportation Design Criteria manual identifies stacking requirements based upon the number of parking spaces proposed. Preliminary analysis of the subject site indicates that the number of parking spaces for the entire site will be between 501 and 1,000 parking spaces, which equates to 80 feet of stacking. The applicant is proposing 42 feet of stacking. The property was recently platted with a private drive accessing all five lots in the subdivision. Section 35.16.7.B.2 states "Non-Single Family Residential Private Drive. Non-Single family residential lots within a subdivision or addition that is surrounded by developed property making it unfeasible to provide street connectivity, do not have to abut a public street if such lots have access to a public street by a public access and fire lane easement approved by the City. The easement must be at least 24 feet wide and constructed, marked and maintained to meet the standards for parking lots as contained in the Transportation Criteria Manual and for fire lanes as contained in the Fire Code. The stacking requirements _for public streets shall appl. v to the public access and fire lane easement at the point where it intersects with a public street. In addition, the public access and fire lane easement shall be considered a driveway or curb cut access to the public street for all such lots. Each non-residential lot shall have a minimum thirty (30)feet of fi~ontage on the public access and fire lane easement." Spirit and Intent: Stacking distance is measured between the first parking space, drive isle, or maneuvering area and the property line. The intent is to provide adequate space or distance for vehicles prior to a turning maneuver. Applicant's Response: (See Attachment 4 and 5) Staff Finding: 1. The applicant is proposing a two-lane entry road and deceleration lane to mitigate the decreased stacking distance. Internal Connectivity: Section 35.13.10 B. 1.b. states "Prior to division of property, circulation and access standards shall be applied and, if necessary, cross easements shall be required so that access to all properties created by the subdivision can be made from shared curb cuts." No cross access to the north is provided. Spirit and Intent: The intent is to provide cross access to adjacent lots thereby maintaining roadway capacity. The provision of cross access between sites will reduce the traffic on adjacent streets and needed turning movements. Applicant's Response: (See Attachment 4 and 5) Staff Finding: 1. The internal private drive, being 4 lanes in width, provides adequate access to all lots within the subdivision. The applicant's transportation consultants have concluded that the subdivision's private road design provides adequate lot access. Pervious Paving: The proposed development will exceed the number of parking spaces required by 29 spaces (106 required, 135 proposed). Permeable paving is required for those parking spaces that exceed the number of parking spaces required, as per Sections 35.13.10 B. and 35.14.4.F. Spirit and Intent: The purpose of requiring permeable surfaces for any excess parking is to reduce the impact on the city drainage system, to improve the water quality by providing better infiltration of storm water, and to reduce the negative effect of heat islands. Applicant's Response: (See Attachment 4) Staff Finding: 1. The applicant has not provided any mitigation to meet or exceed the design objectives of the regulation. ATTACHMENT 2 NORTH Location/Zoning Map Scale: None X LIJ M gO gD Og lfltllJ~ IU III ~11 IIrTi .n- g~ 0¥0~/ Attachment 4 JUN $ 2002 PLANNING & DEVELOPMENT CHUCK E. CHEESE RESTAURANT ALTERNATIVE DEVELOPMENT PLAN-REQUEST PRESENTATION TO PLANNING & ZONING COMMISSION JUNE 12, 2002 TABLE OF CONTENTS m Sm m LETTER OF REQUEST- ALTERNATIVE DEVELOPMENT PLAN CITY STAFF APPROVAL OF ALTERNATIVE DEVELOPMENT PLAN PROJECT DEVELOPMENT DESCRIPTION VARIANCE #1 VARIANCE #2 VARIANCE #3 VARIANCE #4 aw w VARIANCE #5 TRAFFIC CONSULTANTS LETTERS OF SUPPORT June 4, 2002 % BURSON WILLIASIS ARCtlITECTS INC. Mr. Salty Rishel · Chairman - Planning & Zoning Commission c/o Mr. Larry Reichhart Assistant Director of Planning CITY OF DENTON 221 N. Elm Street Denton, .Texas 76201 Denton Park 35 Addition - Chuck E. Cheese Restaurant Alternative Development Plan Application & Request for Approval Dear Chairman Rishel: Burson and Williams Architects Inc. represents CEC Entertainment in the design and pending construction of a new Chuck E. Cheese restaurant and family entertainment center in Denton. CEC Entertainment is currently under contract to purchase Lot 1 of Denton Park 35 Addition, a commercial/retail land development subdivision located on the 1-35 north (west) bound Service Road, between Teasley Lane and Fort Worth Ddve. Denton Park 35 Addition is a new multi-lot commercial/retail subdivision which received final plat approval from the Planning and Zoning Commission on May 8, 2002. Representing CEC Entertainment, we have recently submitted construction drawings to the City Staff, in order to receive a building permit to construct the referenced Chuck E. Cheese restaurant. As is normally the case, City Staff has rejected our plan submittal for several code and construction issues. Unfortunately, several of these issues reflect Staff interpretations which we feel are in violation of our rights, as outlined in the Code, or, they are issues which we feel are not dearly defined or which we feel are not compatible with the intended development. Subsequent to discussions and negotiations with City Staff, we are now requesting approval of an Alternative Development Plan for our project; and, as evidenced by the enclosed e-mail correspondence from David Hill to Weldon Davis, we have received Staff's agreement of support on several of the issues which are not in full compliance with Staff's interpretation of the New Development Code. As is required for the submittal and acceptance of an Alternative Development Plan, we feel that our proposed Alternative Development Plan meets the intent of the Denton Plan and the Denton Development Code. We feel that, in the case of most issues of variance, Staff will concur that we have, in fact, met the intent of the Denton Plan and Development Code. T~vo Turtle Creek Village · 3838 Oak Lawn · Suite 1505 · Dallas, Texas 75219 · 214/520-2221 · FAX 214/528-6820 page 2 Planning & Zoning Commission June 4, 2002 By the rights granted to us in Section 35.3.4 of the New Development Code (p. 11-12), we ara hereby requesting approval of the submitted Alternative Development Plan, which incorporates variar~ces from Staff's interpretation of the Development Code, in the.following areas: 2. 3. 4. 5. Vehicular Traffic Stacking Location and Distance at the entry to the subdivision Lot-to-Lot Connectivity - Exterior Lot-to-Lot Connectivity - Interior Permeable Paving Requirement - Parking Capacity Vehicular Traffic Stacking Location and Distance at the entry & exits to our parking lot Although the developers of Denton 35 Park Addition received final plat approval on May 8, 2002, we ara aware that.Items 1, 2, & 3 of the referenced issues have been points of co ntention and disagreement since long prior to their receipt of final plat approval. Due to the fact that these issues will impact and affect each project developed within their land development subdivision, we'ara aware that they attempted to resolve the issues prior to final platting, but, Staff took the position that each of these was not a "Plat" issue, but, that they were '~Site Plan Design" issues; and, they would not allow the developers to have finals discussions regarding these disputed issues, pdor to plat approval. The delays in resolving these issues, on the part of the land developer and the City Staff, as well as our other listed issues, ara now delaying and possibly endangering theConstruction of the Chuck E. Cheese restaurant in Denton. If our site plan layout has to be changed, due to the listed issues, and if our other listed issues, cannot be resolved, the resulting, delays in Start of construction could have serious consequences for our project. We have been informed by our client, CEC Entertainment, that these revisions and the resulting delays will cause them to reconsider the placement of their restaurant in Denton, at least within this fiscal year. In order to allow us to proceed with the timely construction of the Chuck E. Cheese restaurant, without further delays, Staff has agreed to our application for Alternative Development Plan, with their support on most varied issues. We hereby request that-the Planning and Zoning Commission review our facts and accept our Alternative Development Plan as submitted. We ara providing a detailed explanation of each of the issues of variance, including (1) the pertinent Code section; (2) our position on the issue, with exhibits; and, (3) Staff's position of opposition, when pertinent. Thank you for your consideration of our Alternative Development Plan. We sincerely hope that we can resolve these issues and proceed with constructing a new Chuck E. Cheese restaurant in Denton. Sincerely, ~._~ ~,~~ David K. Williams, A!A CHUCK E. CHEESE RESTAURANT ALTERNATIVE DEVELOPMENT PLAN REQUEST VARIANCES FROM STAFF INTERPRETATION OF CODE Location'& Distance of Subdivision Vehicular Traffic Stacking Supported by Staff Waiver of Requirement for Lot-to-Lot Connectivity- Exterior SUpported by Staff Waiver of Requirement for Lot-to-Lot Connectivity - Interior Supported by Staff Location & Distance of Parking Lot Vehicular Traffic Stacking Supported by Staff Permeable (Pervious) Paving Requirement for Excess Parking Opposed by Staff rsubj: Denton Park 35 ADP Date: 6/3/02 6:28:35 PM Central Daylight Time ] From: David. Hill@cityofdenton. com (David Hill) · To: Twdfocus@aol. com CO: Charles. Fiedler~cityofdenton.com (Charles Fiedler), DaWd. S~lmon@cityofdenton. com (David bal~mon). Doug. Powell@ cityofdenton, corn (Doug Powell), Larry. Reichhart@cityofdenton. corn (Larry Reichhart) Weldon: As per our conversation this evening, the following arrangements apepar to be suitable to pursue development of the Chuck E. Chees project: · 1. The appeal of staff's site plan determination will be converted to an Alternative Development Plan application for the following items: a. Stacking Distance (for the entire subdivision, with staff support) b. Internal Connectivity (for the entire subdivision, with staff support) ...... c. External Connectivity (will not be required for the CEC parcel only., and I don't think it needs to be part of the ADP apphcation - check with Doug Powell on this, staff will support) d. Parking Supply (I indicated to you that CEC would have to prove that the offstreet parking supply will be used on a regular basis even though it exceeds maximum allowed) e. Pervious paving (I indicated thai staff would identify the percentage exceeded, and the point that CFC says they will be used regularly; P&Z will have to make final decision) · '2,. The condLtions of this offer need to be acted on by tomorrow (Tuesday, 614).. Please coniact Doug Powell to determine how the application needs to be modified to change into an ADP application). If received by late Wednesday/first thing Thursday morning, the application will be added to the June 12th P&Z agenda, and to be fast-tracked an placed on the June 18th Council agenda. 3. You will still reserve the abi!ily to appeal the external connectivity determination to P&Z at a later date, which will be considered an extension of the current application with no additional application fee. The direction given to staff by Council tomorrow evening regarding this issue may have a bearing on your eventual decision on whether to appeal or r~ot. Staff respectfully disagrees with the position you have taken regarding external connectivity, and will oppose the appeal. I hope this summarizes our conversation correctly. I want to again clarify the staff position taken during our most recent meeting. An appeal of staff's interpretation of the remaining issues has citywide implications, and staff will oppose such appeals vigorously, lVlore importantly, staff has no discretion to alter these regulations. The ADP process, however, does allow flexibility and gives the applicant the opportunity to mitigate .negative impacts, with the Pa, Z and Council authorized to make discretionary decisions. In conclumon, my staff will work to make your project happen within the confines of the regulations adopted by the City Council. If you have any..qu .estions or comments, please contact me. Dave Hill Asst. City Manager - Dev. Svcs. City Hall, 215 E. McKinney, Denton, TX 76201 940-349-8314 940-349-859--3 (fax) drnnill@c tyofdenton corn Tuesday, June 04, 2002 America Online: Twdfocus DENTON PARK 35 ADDITION PLANNING & ZONING COMMISSION REQUEST FOR ALTERNATIVE DEVELOPMENT PLAN PROJECT DEVELOPMENT DESCRIPTION Denton Park 35 Addition is a 7.5 acre commercial/retail land development subdivision, zoned Downt(~wn Commercial General (DC-G). Final Plat approval for this project was granted'by the P&Z Commission on May 8, 2002. The project fronts on 1-35E northbound (westbound) Service Road, between Teasley Lane and Fort Worth Drive. The approved final plat allows subdivision of the property into five (5) individual lots, with only two of these lots having actual frontage on the adjacent public roadway (I-35 Service Road). All of the sites are accessed via a public access and fire lane easement over private property. Lot #1 is currently under contract to CEC Entertainment, the parent company of the Chuck E. Cheese restaurant concept. Pending approval of the proposed Alternative Development Plan, CEC will be constructing a Chuck E. Cheese restaurant on this site. The subdivision is being developed, with final plat approval granted, as allowed under Section 35.16.7.B.2 (p. 160) of the New Development Code. Section 35.16.7.B.2 (p.160) of the New Code provides for the development of infill sites or other special condition sites, wherein the current developed condition of surrounding sites makes it unfeasible to provide street connectivity between the site being developed and surrounding sites. This is accomplished by providing access to the lots by means of the use of a public access and fire lane easement, as opposed to a public roadway. This publiC access and fire lane easement provides access to all lots within the new development; and, by means of a single common driveway and curb cut, connects each of the lots to the adjacent roadway (I-35 Service Road). Section 35.16.7.B.2 (p. 160) of the New Code specifically states: "Non-Single Family Residential Private Drive. Non-Single family residential lots within a subdivision or addition that is surrounded by developed property making it unfeasible to provide street connectivity, do not have to abut a public street if such lots have access to a public street by a public access and fire lane easement approved by the City. The easement must be at least 24 feet wide and constructed, marked and maintained to meet the standards for parking lots as contained in the Transportation Criteria Manual and for fire lanes as contained in the Fire Code. The stacking requirements for public streets shall apply to the public access and fire lane easement at the point where it intersects with a public street. In addition, the public access and fire lane easement shall be considered a driveway or curb cut access to the public street for all such lots. Each non.residential lot shall have a minimum thirty (30) feet of frontage on the public access and fire lane easement. Exhibits l-A, l-B, 1-C, 1-D and l-E, included herewith, show the specific configuration and lay-out of the Alternative Development Plan, as well as: 2. 3. 4. 5. Required and defined "public access and fire lane easement" Required and defined "stacking" for turning into the project Required and defined "driveway and curb cut access to the public street for all lots" Site plan and layout for the pending Lot #1 sale to CEC Entertainment Total Parking for total project and for Lot #1 I I I ~111)~ IU III Il] I I ! ,9-,g~' N CAMPUS HOUSING - ADDITION PHASE H ~/~ ....... .- .................... 2~_~' t · I ' - ', INTERSTATE 35 SELF STORAGE WORMERLY I ..,. ! LOT ! STAC~NG CENTRE PLACE PHA~E I COUUO~~ CURB CUT DESIGNATED SUSDIVISION STACKING- 80 FT. DENTON PARK '35 ADDITION ALTERNATIVE DEVELOPMENT PLAN ! CAMPUS HOUSING ' ' ADDITION PHASE II ! ,,/,, ~/lllIIII III ,-. ................ ~.;~, / i INTERSTATE 35 SBLE (FORMERLY ACI) CONNECTIVITY / I / , DESIGNATED 8UBDMSION CENTRE PLACE PHASE I DENTON PARK 35 ADDITION EXIT STACKING EXHIBIT t-D STACKING 30 FT CHUCK E. CHEESE SITE PLAN- STACKING 61.5 FT SCALE tN FEET I .DENTON PARK 35 ADDITION EXHIBIT 1-E DENTON PARK 35 ADDITION PROJECTED PARKING MAXIMUM REQUIREMENTS Lot # 1 2 3 4 5 Parking Parking Use Building Area per Code Required Restaurant 10,568 sq.ft. 106 * 135 Restaurant 10,000 sq.ft. 100 * 120 Restaurant 6,600 sq.ft. 66 *- 79 Medical Office 6,600 sq.ft. 19 ** '44 Hotel 100 rooms 102 *** 110 TOTAL 488 City Regulations for Parking: Restaurant Parking: the lesser of 1 space per every 4 seats or 1 space per 100 sq,ft. Lot #1: CEC Entertainment - 1 space / t00 sq,ft,. Lot #2: Unknown - 1 space / 100 sq,ft, Lot #3: Unknown - 1 space / 100 sq,ft, Medical Office Parking: 1 space / 350 sq.ft. Lot ~4: Unknown - 1 space / 350 sq.ft. Hotel: '1 space per room plus manager plus conference room requirements, Lot #5: Unknown- assume 100 rooms, limited service, no conference facilities DENTON PARK 35 ADDITION PLANNING & ZONING COMMISSION REQUEST FOR ALTERNATIVE DEVELOPMENT PLAN VARIANCE #1 VEHICULAR TRAFFIC STACKING LOCATION & DISTANCE AT ENTRY TO SUBDIVISION PERTINENT CODE SECTION: Section 35.13.10.A.l.a (p,139) of the New Code states: provide adequate stacking distance for aH entrances." :.,"AH developments shah Section 4.1.C (p. 65) of the Transportation Criteria Manual defines "Stacking" requirements based upon number of parking spaces on a specific lot. DEVELOPER INTERPRETATION OF CODE: Subdivision Developer (Developer) contends they are in full compliance with all Code requirements for "Stacking", including location and distance. Developer and CEC understand the need for "stacking" and fully understand those sections of the Code which deride the requirements for "Stacking", as listed above. Although not defined at any place within the Code or the Transportation Criteria Manual, Staff is stating that the "Stacking" distance for entering the subdivision is based upon the total number of parking spaces for the total five lot subdivision. Based upon the maximum amount of development possible on the five lots, when combining the total of (1) required landscaped area, plus (2) building square footage, plus (3) required parking, the total count of parking spaces will be between 300 and 500 spaces. This total amount of parking spaces, according to Section 4.1.C (p.65) of the Transportation Criteria Code, will require that the Developer provides a "Stacking" distance of 60' at the entrance to subdivision. Further, the purchaser of Lot #1, CEC Entertainment, will be providing 132 parking spaces for the Chuck E. Cheese restaurant. When complying with the required calculations, as listed in Section 4.1.C of the Transportation Criteria Manual, for "Stacking" for the turn into the Lot #1 parking lot, the required "Stacking" distance is 40'. "Stacking", when used in relation to traffic and transportation herein, is a traffic safety term. It means that the development must provide an adequate safe distance to allow the "turning" traffic to slow down and "stack" as they are preparing for the turn, or to "wait" as traffic in front of them is performing the referenced "turn" off of the thoroughfare they are traveling on, onto the new thoroughfare that they are turning onto, or into the parking lot that they are turning into. Developer has provided for the required ';Stacking" distance of 60', prior to the turn into the subdivision, in the right turn deceleration/stacking lane that Developer has agreed to construct adjacent to the currently existing lanes of the 1-35 Service Road. (According to the Traffic Impact Analysis, the construction of this right turn deceleration/stacking lane is not a requirement necessitated by traffic capacity.) Developer and CEC have provided for the required "Stacking" distance of 40', prior to the turn into Lot #1, within the public access and fire lane easement. (According to the Traffic Impact Analysis, this "Stacking" distance is not needed, due to the presence of 2 lanes of traffic flowing into the subdivision, but, if needed, the stacking distance would be 25'.) Developer and CEC have, therefore, complied with all requirements of the New Code, related to "Stacking" requirements for the overall subdivision, and for the development of the Chuck E. Cheese restaurant development on Lot #1. DENTON PARK 35 ADDITION PLANNING & ZONING COMMISSION REQUEST FOR ALTERNATIVE DEVELOPMENT PLAN VARIANCE #1 VEHICULAR TRAFFIC STACKING LOCATION & DISTANCE AT ENTRY TO SUBDIVISION · STAFF INTERPRETATION OF CODE: Staff contends that, according to their interpretation of the Code, the Developer and/or the Lot #1 developer are required to provide the 60' "Stacking" distance on the inside of the subdivision, after the intersection of the 1-35 Service Road and the public access and fire lane easement, that is, after the turn that the stacking is lined up waiting for. This would require that the first driveway entry into the Lot #1 Chuck E. Cheese restaurant be relocated, resulting in an overall redesign of the Chuck E. Cheese site plan. ALTERNATIVE DEVELOPMENT PLAN: Based upon the fact that the Denton Park 35 Addition Alternative Design Plan (A) provides for a 220' long deceleration/tum lane, along the existing 1-35 Service Road, into the subdivision; and, (2) provides for two (2) lanes of roadway entering the subdivision and two (2) lanes exiting the subdivision, Staff is of the opinion that the subdivision provides equal and adequate stacking and traffic flow controls; and, therefore, Staff is willing to waive the 60' internal stacking requirement and to support the Chuck E. Cheese site plan, and its driveway locations, as designed, with the approved design overriding any other stacking setbacks defined in the Code. DENTON PARK 35 ADDITION PLANNING & ZONING COMMISSION REQUEST FOR ALTERNATIVE DEVELOPMENT PLAN VARIANCE #2 LOT-TO-LOT CONNECTIVITY - EXTERIOR PERTINENT CODE SECTION: Section 35.13.10.A.l.b (p.139) of the New Code states: "Ail non-residential development, excluding industrial, shall provide access to adjoining properties or developments." Section 35.13.10.A.l.a (p.139) of the New Code states: "All development shall provide access that complies with Access Management principals of location, spacing and sharing of curb cuts .... " Section 35.16.7.B.2 (p.160) of the New Code specifically states: "...lots within a subdivision or addition that is surrounded by developed property making it unfeasible to provide street connectivity, do not have to abut a public street if such lots have access to a public street by a public access and fire lane easement approved by the City .... In addition, the public access and fire lane easement shall be considered a driveway or curb cut access to the public street for all such lots." DEVELOPER INTERPRETATION OF CODE: Subdivision Developer (Developer) contends they are in full compliance with all Code requirements for "External Connectivity". Developer and CEC understand the general need for "External Connectivity", as defined in Section 35.13.10.A.l.b, as it is meant to require that developments provide public roadway connections to adjacent and/or adjoining properties. This is an understandable and justifiable regulation which would be needed as part of a municipal transportation Plan, or master thoroughfare plan. However, in certain cases, that is not possible. The Denton Park 35 subdivision is being developed in compliance with Section 35.16.7.B.2, which clearly states that, in the case of this subdivision, ':..it is unfeasible to provide street connectivity..." The inclusion of this Section 35.16.7.B.2 in the New Code clearly supersedes and overrides the Section 35.13.10.A.l.b requirements for "External Connectivity" by means of public roadway connectivity. Therefore, the Developer is in full compliance with the requirements of the Code, as defined and allowed, in Section 35.16.7.B.2, to waive the requirement for roadway connectivity. Developer and CEC further understand the need for "External Connectivity", as defined in Section 35.13.10.A.1.a, as it is meant that multiple adjacent private properties are to be required to share the same curb cuts and driveways onto adjacent public roadways, through the proper location, spacing and sharing of curb cuts, when the adjacent public roadway is a relatively heavily trafficked thoroughfare. This is generally an understandable and justifiable traffic control tool intended to prevent too much traffic from entering the same public roadway, at the same time, in the same area, hence creating traffic hazards. In the case of this subdivision development, as allowed under Section 35.16.7.B.2, all of the lots within the subdivision are already sharing the same curb cut and driveway onto the adjacent public roadway, as is stated in Section 35.16.7.B.2 as ':,.the public access and fire lane easement shall be considered a driveway or curb cut access to the public street for all such lots .... "Therefore, the Developer is in full compliance with the requirements of the Code, as defined and allowed, in Section 35.16.7.B.2, to require the sharing of curb cuts. DENTON PARK 35 ADDITION PLANNING & ZONING COMMISSION REQUEST. FOR ALTERNATIVE DEVELOPMENT PLAN VARIANCE #2 LOT-TO-LOT CONNECTIVITY - EXTERIOR % STAFF INTERPRETATION OF CODE: staff is stating that, according to their interpretation, Developer and/or individual lot developers are required to provide "External Connectivity" to another public street through a driveway connection from one private property parking lot, within the subdivision, to another private property parking lot, outside of the subdivision, and from there to an adJacent public street, being Centre Place Drive. ALTERNATIVE DEVELOPMENT PLAN: Staff is waiving the requirement for any additional "External Connectivity" from or on the Lot #1 Chuck E. Cheese site due to the fact that the adjacent lot between the ~Chuck E. Cheese lot and Centre Place Drive is already platted and constructed. DENTON PARK 35 ADDITION PLANNING & ZONING COMMISSION REQUEST FOR ALTERNATIVE DEVELOPMENT PLAN VARIANCE #3 LOT-TO-LOT CONNECTIVITY - INTERIOR PERTINENT CODE SECTION: Section 35.13.10.B.'l.b (p.140) of the New Code states: "Prior to division of property, circulation and access standards shall be applied and, if necessary, cross easements shall be required so that access to all properties created by the subdivision can be made by shared curb cuts." Section 35.16.7.B.2 (p.160) of the New Code specifically states: "...In addition, the public access and fire lane easement shall be considered a driveway or curb cut access to the public street for all such lots." DEVELOPER INTERPRETATION OF CODE: Subdivision Developer (Developer) contends they and CEC are in full compliance with all Code requirements for ,Interior Connectivity", as required in Sectibn 35.13.10.B.1.b, that being the ability for multiPle privately owned lots to share curb cut and driveway access onto the adjacent public roadway. The requirement for internal connectivity, as defined in Section 35.13.10.B.1.b, states that the requirement is ':..so that access to all properties created by the subdivision can be made by shared curb cuts." Section 35.16.7.B.2 grants the right to develop this subdivision. This section of the Code states, in addition to other things, that "the public access and fire lane easement shall be considered a driveway or curb cut access to the public street for all such lots." This .means that all of the lots within this subdivision are sharing a single, common curb cut 'and driveway onto the adjacent public roadway. Therefore, Developer is in full compliance with the requirements of the Code for internal connectivity. . STAFF INTERPRETATION OF CODE: Staff's is stating that, according to their interpretation of Code, the Developer and/or individual lot developers are required to provide "internal connectivity" by means of providing driveways and cross access easements connecting privately owned parking lot to privately owned parking lot, in order to reduce the amount of traffic which will traverse onto the adjacent public roadway when traveling from one private property to the next. ALTERNATIVE DEVELOPMENT PLAN: The Traffic Impact Analysis, as provided by the Developer and approved by Staff, states that the presence of a four (4) lane public access easement and private roadway serving all of the lots within the subdivision, with one (1) single driveway and curb cut connecting to the adjacent public street, meets the need to provide internal connectivity and negates the need for further private property to private property connectivity. Based upon this TIA report, Staff is willing to waive the requirement for private property to private property internal connectivity for all lots within the subdivision. DENTON PARK 35 ADDITION PLANNING & ZONING COMMISSION REQUEST FOR ALTERNATIVE DEVELOPMENT PLAN VARIANCE fi4 PERVIOUS (PERMEABLE) PAVING REQUIREMENT - PARKING CAPACITY · PERTINENT CODE SECTION: Section 35.14,4.B.6 (p.150) of the New Code states that parking shall be:' "Restaurants, bars, ice cream parlors and similar uses. One (1) space per four (4) seats or one (1) space per 100 sq. ft. of gross leasable area, whichever is less. A minimum of three (3) spaces is required." Section 35.14.4.F (p.151) of the New Code states: "Maximum Allowable Number Of Spaces. The number of spaces provided by any particular use in ground surface · lots shaft not exceed the required number of spaces provided by this Subchapter unless approved by the Director of Planning and Development. Any spaces over the required number of spaces shaft 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, shaft not apply towards the maximum number of allowable spaces." REQUEST FOR VARIANCE FROM REQUIREMENT TO USE PERVIOUS PAVING FOR PARKING SPACES IN EXCESS OF CITY'S STATED MAXIMUM ALLOWABLE SPACES' Based upon the fact that our client's analysis of their parking need dictates the requirement for more parking spaces than the City of Denton's maximum allowable number· of spaces, we hereby request that the P&Z Commission grant our Alternative Development Plan with these excess parking spaces constructed of standard concrete paving, rather than with pervious paving. JUSTIFICATION FOR VARIANCE REQUEST: Neither we, nor our client (CEC) understand how the City ascertained the maximum allowable parking spaces stipulated for commercial uses. In all instances, they appear to be much lower than is generally customary for space users within each of the commercial use types. Specifically referring to retail and restaurant uses, it appears, based upon the requirements of our clients, and our experience in working with retail and restaurant clients, that the City's maximum allowable parking spaces is dramatically lower than will be needed for the restaurants and/or retail stores that will be occupying the facilities. The City's Code refers to the "required number of spaces provided by this Subchapter". How does the City know what is "required" by a company? Normally, municipalities dictate or control the "minimum" number of parking spaces to be provided for a given space use, not the "maximum" number of parking spaces. And, the normal municipality certainly does not penalize the company for providing'more parking spaces, as does Denton. Customarily, these users, both restaurants and retail stores, will not occupy a location that cannot give them adequate parking spaces to support their business needs. For economic reasons, these retail and restaurant businesses will require a certain number of parking spaces. Customers will not readily frequent the business if they habitually have problems finding parking spaces. But, no entity is going to construct more spaces than their experience tells them that they need for their business, also for economic reasons. On our specific site, the City's maximum allowable parking is 106 spaces, but, our client tells us they need 132 spaces. Combining the costs of land, labor and materials required to provide standard concrete' paving on these additional 26 parking spaces, our client will be spending an additional $104,000 to provide these additional 26 parking spaces. No corporation is going to needlessly spend this money unless they think that it is critical to the success of their business. DENTON PARK 35 ADDITION PLANNING & ZONING COMMISSION REQUEST FOR ALTERNATIVE DEVELOPMENT PLAN VARIANCE · PERMEABLE (PERVIOUS) PAVING REQUIREMENT - PARKING CAPACITY JUSTIFICATION FOR VARIANCE REQUEST (cont'd)' Although the City grants the right to provide parking in excess of their maximum allowable limits, the user is burdened in doing this by the City requirement to place pervious paving on all parking spaces in excess of the City's stated "required" maximum allowable spaces. This is an expensive, unnecessary and unwarranted burden on the business. The burden on the user company is in the initial and on-going maintenance cost of the pervious paving material, as opposed to .standard concrete paving. Although the Code has no written directive of what type of pervious paving is acceptable, we have been told, by Staff, that open cell pavers are acceptable. The cost of application of these pavers is more expensive, both initially and long term, than the cost of concrete paving. If the pavers are placed on a concrete bed, as they should be in a paving situation, the paving bed totally defeats the intent of the pervious nature of the product. If, however, the pavers are not placed on a concrete bed, constant vehicular traffic on the pavers, on top of our highly expansive clays in north Texas, will ultimately result in movement and failure of the pavers and the adjacent concrete paving, as moisture infiltration into the clays cause movement and heaving of the paving sub-base, resulting in paving failures and substantial maintenance costs for the user, as they are forced to remove and repair the damaged paving. With the use of these open cell pavers, there will be an initial amount of pervious area in the paving, although negligible. Butl as time passes, siltation will fill in and solidify the pervious area, further reducing the pervious space, thus again totally defeating the intent of the pervious nature of the product. We understand that the reasoning behind the City's limitation on quantity of parking spaces, and the requirement for the use of "pervious" ("permeable") paving, when constructing parking spaces in excess of the City's maximum allowable number of spaces, are as follows: 1. To decrease water run-off 2. To improve water run-off filtration 3. To reduce radiant heat reflection from hard paving We respectfully submit that: 1. The City's maximum allowable parking space designation in not adequate for our restaurant use. City Code allows,us a maximum of 106 spaces and we are constructing 132 spaces, at a cost premium of approximately $104,000. We would not spend this money if these parking spaces were not needed on an on-going and consistent basis. The amount of water run-off which will be absorbed into the ground, under the pavers, will be negligible, due to the configuration and amount of pervious pavers required. The total area of paving on our project is 50,794 square feet. Based upon the City's regulations, we are required to construct 26 excess parking spaces out of open cell concrete pavers. Approximately 25% of the surface area of these pavers is open (pervious) space. Assuming that we are constructing 26 parking spaces, dimensioned 9' x 18', of open cell pavers with 25% open area, the total open (pervious) area will be 1,053 square feet. Considering a total paved area of 50,794 square feet, and a pervious area of 1,053 square feet, we have an initial "pervious" area of 2% of the total paving. But, as time passes, this pervious area will be reduced as siltation fills in and hardens the pervious areas. DENTON PARK 35 ADDITION PLANNING & ZONING COMMISSION REQUEST FOR ALTERNATIVE DEVELOPMENT PLAN VARIANCE PERMEABLE (PERVIOUS) PAVING REQUIREMENT- PARKING CAPACITY JUSTIFICATION FOR VARIANCE REQUEST (cont'd): 3. The amount of water run-off which will be absorbed into the ground, under the pavers, will be negligible, due to the types of rainfall we receive, Combined with the types of soils we have and the slope of the paving. Considering the type of heavy rainfalls that are normal in north Texas, by far the greatest quantity of rainfall will run off into the storm drainage system, rather than be absorbed into the ground, with or without pervious pavers. Our rains are not typically and customarily slow and soaking, they are torrential. Combining the required slope of a parking lot with this type of rainfall, by far the greatest majority of rain will drain off of the parking lot into the storm drainage system. This fact is reinforced by the types of soils that are. prevalent in north Texas. Our soils are primarily highly expansive hard clays. TheSe Soils do not easily absorb and allow water to filter through. They will be hard packed 'in any parking or driveway areas; further reducing the amount of water that can be absorbed.' We are required, by the City's landscape Code, to provide "Parking Tree Canopy" coverage in the amount of 15% of the parking areas. We are providing "Parking Tree Canopy" coverage equaling 26.35% of the parking areas..We, therefore, are already 'contributing to a greater protection, or mitigation, against radiant heat reflection,from hard paving than is required. Based upon these facts, we request that the P&Z Commission grant its approval for us to construct our parking lot, including "excess" parking spaces, with all paved areas constructed, of standard cement or asphaltic concrete, with no requirement for pervious surfaces. DENTON PARK 35 ADDITION ': PLANNING & ZONING COMMISSION REQUEST · FOR ALTERNATIVE DEVELOPMENT,pLANI VARIANCE #5 VE,HICULAR TRAFFIC STACKING LOCATION AND DISTANCE ATTHE EXITS TO OUR` PARKING LOT PERTINENT CODE SECTION: · Section 4.1.C (p.65) of the Transportation Criteria ManUa/i defines "Stacking'' requirements based upon the number of parking spaces~ On a specific lot, and, it states that: "Stacking distance is measured between the first parking space, drive isle or maneuvering area and the property line." Section 35.16.7.B.2 (p.160) of the New Code specifically stateS::- · . "Non-Single Family Residential Private Drive. Non-Single family residential lots within a subdivision or addition that is surrounded by developed property making it unfeasible to provide street connectivity, do not have. to.ab~t aPubliC istreet if such lots have access to a public street by a public access. ~nd fire lane 'eaSement approved by the City. The easement must be at lease 24 feet'Wide and constructed, marked and maintained to meet the standards for parking lots as contained in the Transportation Criteria Manual and for fire lanes as contained in the Fire Code. The stacking requirements for public streets shaft apply to the public access and fire lane easement at the point where it intersects with a public street. In addition, the public access and fire lane easement shaft be considered a driveway or curb cut access to the public street for aft such lots. Each non.residential lot?hall have a minimum thirty (30) feet of frontage on the public access and fire lane easementJ' DEVELOPER INTERPRETATION OF CODE: Subdivision Developer (Developer) and CEC understand the need f°r stacking and fully understand the referenced section of the Code which defines stacking as traffic is exiting.a parking lot. Section4.1.C (p.65) of the Transportation Criteria Manual definesour required "~StaCking" distance, when exiting the Chuck E. Cheese parking lot, as being 40~'for the primary drive and 20' for the secondary drives. This is based upon our 132 parking spaces~ As defined ~in the referenced Section 4.1.C of the Transportation Criteria Manual, this stackingdistance is "measured between the first parking space, drive aisle or maneuvering area and thepr0Perty line." Our rights to the development of Lot #1 of Denton Park 35 Addition, granted under Section 35.16.7.B.2 (p.160) of the New Code, results in an unusual configuration of property lines, as compared ~to the standard lot property line at public street intersection. As currently.designed, our parking lot exit stacking provides the required 40' from first parking space to property' line,for the primary exit, and provides the required 20' from first parking space to property line, for the Secondaryexits. ALTERNATIVE DEVELOPMENT PLAN: Based u pon the special property line configurations present in this subdivision, Staff is supporting all stacking, as designed and shown on the Alternative Development Plan;~ DeShazo, Tang & Associates, Inc. Engineers. Planners 400 South Houston, Suite 330 Dallas. Texas 75202-4899 (214) 748-6740 · Fax: (214) 748-7037 May 14, 2002 Mr. T. Weldon Davis Focus Service Group 8150 N. Central Expressway, Suite 835 Dallas, TX 75206 RE: Denton Park 35 Addition -- City of Denton Stacking Regulations (DT&A No. 02ID) Dear Mr. D~vis: I have reviewed the City of Denton's Development Code with respect to their stacking requirements and offer the foUowing con~nents. The Code reads as follows: Ti~e stacking requireme~ts for public streets shall apply to the public access and fire lane easement at the point where it intersects with the public street. Stacking is addressed in the criteria manual, :Section 4, Part C, as being interior to a developed lot from the access roadway to a point within the site. The chart requiring stacking uses the term "driveway", implying "from the access roadway into-~he developed site". The definition of stacking distance is from the property line into the property being developed. All indications are that the term stacking is within a site, not on the access roadway. It appears from the review of the site plan for your proposed development that the public access easement serving the six tracts is a four-lane roadway. By providing two lanes each direction, the potential for stacking is minimized in that through traffic can use the second lane to avoid left-turning or right-turning vehicles to any of the tracts. Traffic tuming right from the IH-35 frontage road will be in a deceleration lane. Any traffic turning into the proposed site should be able to flow freely into the parking lot as this is a right-tuming maneuver. I would not anticipate any stacking since the turn from IH-35 and the tum from the access road are both right turns. If stacking were to occur, it would only affect the decel- eration lane, not the IH-35 frontage road. Any through traffic would move to the left lane. Based upon infom~ation you provided me, the City of Denton is stating that the required stacking distance shall be calculated based upon the total number of parking spaces on the total six-lot development. If this is correct, it appears that the City is defining your access road as a driveway and that all six lots are in essence one big site. If this is the case, then the stacking for the entire site would apply to the deceleration lane on IH-35E and should not be applied to the interior lots served by the private access road. Mr. T. Weldon Davis May 14, 2002 Page 2 It appears that the intent of the stacking provisions was meant to be applied to the interior of,a site. Because of the public access easement, the "intent "of the law is being overridden by the "letter" of the law. I would like to think that logic would prevail. Sincerely, DeSHAZO, TANG & ASSOCIATES, INC. Tom Simerly, P.E. Vice President TJS:lsk Traffic Impact Analysis Denton Park 35 Addition I~ 35E Westbound Frontage Road West of Teasley Lane Denton, Texas Prepared for: 1-35 Denton Land, Ltd. Prepared by: Jack Hatchell & Associates April 2002 Revised For Information Contact: Jack Hatchell 972-424-1368 Table of Contents I. Introduction .............................................. 1 Purpose ............................................................................................... ~. 1 Study Procedure ................................. : .............................. 1 H. Area Characteristics ................................. ; .............................. ; .................. 2 Study Area .............................................................................................. Area Roadway System ........................................................................... Figure 1:, Site Location ........................................................................... Existing Traffic Volumes .......................................................................... Site Characteristics .................................................................................... 4 Proposed Development ............................................................................. 4 Trip Generation ...................................................................................... 4 Table 1: Trip Generation Data .................................................................. 4 IV. Projected Traffic Volumes . " 5 Pr~ected Background Traffic .................................................................... 5 Projected Site Traffic ................................................................................ 5 Projected Total Traffic ............................................................................. 5 Figure 2: Background Year 2005 Total Traffic ...................................... 6. Figure 3: Directions of Approach ........................................................... 7 Fig~tre 4: Projected Site-Generated Traffic ...................................... '.~ .... 8 Figure 5: ProjeCted Year 2005 total Traffic ........................................... 9 V. Capacity Analysis and Results ................................................................ 10 10 Intersection Capacity ........................................................................... Roadway Link CapaCity 10 Resuks of Analysis 11 Table 2: Intersection Capacity Analysis ............................................... ' i2 Table 3: Link Capacity Analysis ......................................................... 12 VI. Conclusions and Recommendations ........................................................ 13 Appendix A: Existing Traffic Volumes Appendix B: Capacity Analysis Workshee[s I. Introduction 1-35 Denton Land, Ltd. is making an application to plat a-development located on the IH 35E Westbound Frontage Road (WBFR) west of Teasley Lane in Denton, Texas. The site, called Dento[ Park 35 Addition, is proposed to have two quality restaurant pad sites, two office pad sites and a motel pad site. The City of Denton requires that a traffic irnpact analysis (TIA) be submitted as part of the site plan. To comply wi~h- this requirement, 1-35 'Denton Land, Ltd. has retained the services of Jack Harebell & Associates to prepare this study. Purpose This report assesses the impacts, of anticipated site-generated traffic on-the area roadway system and identifies any measures necessary to mitigate any adverse traffic impacts caused by the proposed development. Intersection levels-of-service are the standard measures bf effectiveness utilized by traffic engineering professionals to evaluate traffic impacts. This report presents background information relative to the site, study methodology, findings, conclusions, and recommendations for the proposed development's traffic .characteristics as they relate to the area roadway system. Study Procedure To make a thorough analysis of-th¢4~at~fic impacts of the propose, d development, the following procedures were followed: · Conversations were held with the City of Denton engineering staffto discuss and confirm study · procedures and assumptions for traffic associated with th~ proposed-development. o A field reconnaissance of the site was made to obtain information relative' to the existing roadway geometrics and site characteristics. '- · Projected dh'ections of approach toffrom the proposed development were determined based on site access and locations of residential areas. · City staffidentified the impacted intersections and street sections to be analy.zed. · Capacity analyses were performed at the study intersections and street sections. · This report was Prepared to doc~ent the analysis, findings, and recommendations of the study. H. Area Characteristics Denton Park 35 Addition is bordered on the south by the 'IH 35E Westbound/Northbound Frontage Road and on the east and west by commercial uses. A forty-foot wide public access easement street is proposed to provide access to/from the III 35 £ Westbound Frontage Road for the proposed development sites. Study Area The site for the proposed development is located on the IH 35E Westbound Frontage Road between Teasley Lane and US 377. A study area along the IH 35E WBFR between a proposed new street (Center Place Drive) and Meadow Street and the intersection of Dallas Drive at Alegre Vista Drive was established by the City. Figure 1 illustrat.es the study area, site location and area roadway system. LL5 Area Roadway System Denton Place 35 Addition will be served directly by the Er-I 35E WBFR via a private street. Dallas Drive will provide indirect a~cess to the site via its new connection to Center Place Drive. IH 35E is a major north/south freeway that traverses the State ofTexas and continues north. It has two two-lane one-way frontage roads. Dallas Drive is US 77J' i~"is a five-lane roadway with a center two-way left-mm lane. Dallas Drive com~ects IH 35E with Downtown Denton and will provide an alternative route for persons traveling to the site from the north and east areas of Denton. Center Place Drive is a new street that connects the IH 35E WBFR with Dallas Drive via Alegre Vista Drive. It is a wide two-lane roadway. Meadow Street is a two lane undivided roadway that intersects the IH 35E.WBFR and continues north. It intersects other streets and provides a very indirect route to Locust Street and Dallas Drive. Existing Traffic Volumes Existing peak-hour traffic volumes for the intersection of IH 35E WBFR at Meadow Drive and Alegre Vista Drive at Dallas Drive and the study streets were obtained from a traffic impact analysis (TIA) prepared by DeShazo, Tang & Associates, Inc. (DT&A). This TIA was prepared'for Centre Place, a proposed mix, d-use development that is located immediately cast of D~nton Park 35 Addition. These existing traffic volumes are presented in the Appendix to this report. gtreet Not Scale lit 35E ~treet EBFR Alegre Drive WBF~ Teasley FIGURE 1 SITE LOCATION Jack Hatchell & Associates . 3 Ill. Site Characteristics Proposed Development Denton Park 35 Addition is proposed to contain 22,568 square feet (sf) of quality restaurant, ~. 12,000 sf of general office, 12,000 sf of medical office and a 100-room motel. A 10,568 square- foot Chuck E. Cheese restaurant is planned on the southeast corner of the property. Trip Generation .The traffic expected to be generated by a parcel of land is .primarily ;~i'function of the use of that land. The volume 'of traffic associated with any development depends on the proposed land uses and their densities of develoPment. To determine the expected trip generation of the proposed development, a nationally recognized and accepted standard published by ITE entitled Trip Generation. 6th Edition was used. This publication states trip'generation rates and equations for varied land uses based upon actual surveys of those land uses. Land use and intensky, trip rates,.and daily trips for~both the projected land use and proposed zoning are shown below in Table 1: Table 1: Trip Generation Data Land Use In Trips A.M. Peak P.M. Peak Rate Trips Rate Trips Out In Out In Out In Out Da~ly Rate Trips Quality Restaurant 22,568 sf General Office 12,000 sf Medical Office 12,000 sf Motel 100 rooms Total 0.27 1.o7 1.94 0.23 0.54 6 12 0.19 117 2 0.49 23 6 0.41 23 41 69 61 5.02 2.47 113 56 0.25 1.24 2 15 0.99 2.67 12 32 0.31 0.27 31 27 158 130 89.95 2,030 11.01 132 36.13 434 9.11 911 3,507 IV. projected Traffic Volumes Traffic volumes expected to exist on the roadway system are a combination of the existing traffi~ plus the traffic projected for the proposed development. Projected Background Traffic The DT&A TIA determined Year 2005 traffic volumes for the intersections of Center Place Drive and Meadow Street at the IH 35E WBFR and Dallas Drive at Alegre Vista Drive. These volumes were based on a 2 percent annual growth in existing traffic and the projected site-generated traffic for the Centre Place mixed-use development. Projected background traffic volumes for the Year 2005 from the DT&A report are shown in Figure 2. Projected Site .Traffic Traffic projected to be generated by the proposed develoPment is based on ITE'trip generation rates as shown in Table 1. During the morning (a.m) peak hour, the proposed development is projected to produce 69 additional vehicles coming into the site and 61 leaving the site. '. During the afternoon (p.m.) peak hour, 158 vehicles are projected to enter the site and 130 leave. Directions of approach to and departure from the site are shown in Fiomtre 3. Assigament of the site-generated traffic to the private street serving the property is shown in Figure 4. Projected Total Traffic Projected total traffic for the study in'teiSections is the combination of the background traffic plus the projected site-generated traffic. These projected total traffic volumes are shown in Figure 5. It is assumed that the parcels in Denton Place 35 Addition will be developed by the Year 2005. Not Scale ' S46(174T~,~ 1495(1587) U! 377 Legend xxx = A.M. Peak Hour (xxx) = P.M.. Peak Hour · Meadow St. Denton 35 Dr. , 60(68) ] ' ~ 627(643) [ 254(285 ~, 253(292) m 35E WBFR Teasle~ Eno FIGURE 2 BACKGROUND YEAR 2005 TOTAL TRAFFIC Jack Hatchell & Associates . Not! Scale Locu: ;treet gtreet Alegre 5% 1It 35E f21_0% 90% Place Drive SITE : WBFR 75% Teasley HGURE 3 DIRECTIONS OF APPROACH Jack Hatchell & As,sociates 7 377 Not ! Scale Meadow St. Denton 35 Dr. { 6(13) [ ' ~_55(117) 61(13~ ~-.-~___ t--- 69(158) Legend xxx = A.M. Peak Hour (xxx) = P.M.. Peak Hour 18(4{ + ~ 51(118) m 35E WBFR Teasley tn. FIGURE 4 PROJECTED SITE-GENERATED TRAFFIC Jack Hatchell & Associates 8 377 Not Scale Meadow St. 147(851 Da~a~~s 8 r4~1495(1587) Cent{ Place Dr. Denton 35 Dr. 66(81) I , 69(158) 272(32 , 253(292) · --687(711) ~ ~484(544) I][I 35E WBFR Legend xxx = A.M. Peak Hour (xxx) = P.M.. Peak Hour Teasle' Eh. FIGURE 5 PROJECTED YEAR 2005 TOTAL TRAFFIC Jack Hatchell & Associates V. Capacity Analysis and.Results Analyses were performed' at the intersections of IH 35E WBFR at Center Place Drive, Denton 35 Drive, Meadow Street and Dallas Drive at Alegre Vista Drive to determine the demand, capacity, and le~vel-of-service (LOS). Level-of-service is a qualitative measure of identifying how effectively traffic operates at an intersection or along a roadway link and is defined by categOries A through F. LOS "A" represents very good traffic flow and LOS "F" represents poor traffic flow and a high level of traffic congestion. Intersection Capacity Capacity is a function of the number of lanes, the type of movement and the make-up ofthe traffic in that movement. The methodolo~oy used in this study for determining caPacity, delay, and LOS at an intersection is outlined in the 1994 and 2000 Hi,way Capacity_ Manuals (HCM). Intersection capacity analyses were performed at the study intersections using Highway Capacity Software (HCS) and Signal2000, computer pro,ams developed.to emulate the procedures outlined in the HCM for unsignalized and signalized intersections. An additional analysis was performed to determine the stacklng'(queuing) distance for the ChuCk E. Cheese driveway onto the public access easement street and the outside northbound lane of the public access easement at the Chuck E. Cheese Drive. Chuck E. Cheese is planned to have 135 par'king spaces and 379 seats. Chuck E. Cheese is known for their parties. According to Chuck E. Cheese staff, the average party is 12 persons with an average of 8 parties at one time. The vehicle occupancy for party trips is five persons per vehicle. The stacking analysis was performed assuming there will be 75 vehicles exiting the Chuck E. Cheese, 100 entering the Chuck E. Cheese driveway and the p.m. peak hour volumes for through northbound and southbound traffic shown in Figure 5. The entering and exiting numbers represent approximately double the projected Chuck E. Cheese traffic during the p.m peak hou_r. Tiffs represents a worst case scenario for the Chuck E. Cheese traffic. Roadway Link Capacity According to information fi'om the North` Central Council of Governments, a two-lane undivided street can accommodate 1,000 vehicles per hour (500 per lane). A four-lane divided roadway can accommodate 3,000 vehicles per hour (750 per lane). Each of the study roadway links was analyzed to determine the level-of-service. 10 Results of the Analysis Results of the capacity analyses found that the intersections of IH 35E WBFR at Center Place Drive, Denton 35 Drive and Meadow Street operate at LOS B under Year 2005 total traffic conditions. The intersection of Dallas Drive at Alegre Vista Drive is proj?cted to operate at 'LOS D during the a.m. peak hour and F during the p.m. peak hour as a stop sign controlled intersection. As initially shown in the TIA prepared for the Centre Place development by DT&A, and confirmed by this study, the intersection of Dallas Drive and Alegre Vista Drive operates at LOS E during the morning peak hour and LOS F during the afternoon peak, with the inclusion of the Centre Place traffic, prior to incorporation of the Denton Park 35 Addition traffic.. The intersection was .tested as a signalized intersection and found to operate at LOS A in the morning and LOS C+ during the afternoon peak hour. The .TIA prepared for .the Centre Place development by DeShazo, Tang & Associates, Inc. recommended traffic signals at the intersection based on Centre Place plus existing traffic. All of the roadway links are projected to operate at LOS C or better during both peak hours with the exception of Dallas Drive. Dallas Drive is projected to operate atLOS E during the morning peak hour and LOS F during the afternoon peak hour. The existing LOS on Dallas Drive is D during the a.m. peak and F during the p.m. peak. As initially_shown.in the C~ntre Place TIA and confirmed by this study, this section of Dallas Drive is projected to .operate at LOS E during the a.m. peak hour and LOS F during the p.m. peak hour, when the Centre Place.traffic is added to the existing traffic. The Denton Park 35 Addition adds very little traffic to Dallas Drive. The results of the lChuck E. Cheese driveway analysis indicates that stacking is required for one vehicle (25 feet) for the driveway exiting the Chuck E. Cheese parking lot and one vehicle for northbound traffic that is entering the Chuck E. Cheese parking lot. This analysis is contained in the Appendix to this report. Results of the capacity analysis are shown in Table'2 for study intersections and Table 3 for study roadway links. Worksheets for the intersection capacity analyses are provided in the Appendix to this report. 11 Table 2: Intersection Capacity .... Analysis A.M. Peak Hour IH 35E WBFR at Center Place Dr. - 11.9 B IH 351~ WBFR at Denton 35 Dr. - 10.7 B IH 35E WBFR at Meadow St. 11,6 B Dallas Dr. at Ale~re Vista Dr. 29.0 D Dallas Dr. at Aleg;re Vista Dr.* 0.63 8.4 A P.M. Peak ltour IH 35E WBFR at Center Place Dr. 13.2 B IH 35E WBFR at Denton 35 Dr. - 11.5 B IH 35E WBFR at Meadow St. - 11.3 B Dallas Dr. at Alegre .Vista Dr. - 193.8 F Dallas Dr. at Alegre Vista Dr. * 0.83 22.7 C+ * with traffic signals Table 3. Link Capacity Analysis · Roadway Link Year 2005 Back~round Traffic Year 2005 Total Traffic Center Place Drive 507 0.51 C 525 I 0.53 C Denton Park Drive - - - 130 0,13 A Meadow Street 207 0.21 B 213 0.21 B Alegre Vista Drive 379 0.38 B 397 0.40 B Dallas Drive 2526 0.84 E 2544 0.85 E Center Place Drive 577 0.58 C 617 0.62 C Denton Park Drive - 288 0.29 B Meadow Street 153 0.15 A 166 0.17 A Alegre Vista Drive 442 0.44 B 482 0.48 C Dallas Drive 3554 1.19 F 3594 1.20 F V/C = Volume-to-Capacity Ratio 12 VI. Conclusions and Recommendations The resuks of the analyses presented in this study indicate that, with the exception of Dallas Drive at Alegre Vista Drive, the study intersections operate at an acceptable level-of-service under Year project'ed 2005 total traffic conditions. Installation of a traffic signal at the intersection of'Dallas Drive and Alegt:e Vista Drive will allow the intersection to operate at an acceptable' level-of-service. Dallas Drive at Alegre Vista Drive is projected to operate at LOS F during the p.m. peak hour with the addition of the Centre Place traffic, according to the TIA prepared by DT&A. Denton Park 35 Addition adds very little traffic to the intersection. With the exception of Dallas Drive at Alegre Vista Drive, all of the roadway links.are projected to operate at an acceptable level-of-service. This failed condition of level-of-service is.projected when the Centre Place traffic is added to the existing traffic, according to the TIA prepared for the Centre Place development. ,Although not n~eded for traffic capacity,, a westbound separate right-turn lane on the IH 35E WBFR at Denton 35 Drive. ha_s been offered by the developer of Denton Park 35 Addition and is recommended. This separate rigl~t-turn lane will minimize the impact of turning traffic on through IH 35E WBFR traffic and enhance traffic safety. Vehicle Stacking Distance The capacity analysis for the Denton 35 Drive/IH 35E WBFR intersection indicates that a stac 'king distance of one vehicle (25 feet) is needed on the southbound approach to the intersection (see capacity analysis worksheet in Appendix). A similar analysis for the Chuck E. Cheese par'king lot driveway indicates that a stacking distance of 25 feet is required for the northbound fight-mm into the parking lot and the westbound exit fi-om the par'king lot. Internal Traffic Circulation The proposed land uses in Denton Park 3~ Addition are served by the proPosed 40-foot public access easement street. This street shoUld have sufficient capacity to accommodate Site traffic for each individual parcel without the need to internally connect the parcels. A single southbound fight-turn lane is recommended at the public access easement's intersection with the IH 35E Developments on the individual parcels will access the public access easement to gain access to the IH 35E WBFR. This access to the public access street for each individual parcel negates the need to provide cross access between the individual parcels. · 13 Additional Access to m 35E Denton Park 35 Addition has a single access to the IH 35E WBFK It would be desirable to have a second access, if possible. This additional access could be accomplished in two ways. One way would be to provide another entrance/exit to the IH 35E WBFR via a joint drive between the Centre Place and Denton Park 35. Addition developments. This north/south access would jointly serve both developments. The second means of providing additional access is .by a cormecting · east/west drive that would cross into the Centre Place development and intersect Center Place Drive. Tiffs joint access could be planned as additional parcels are site planned for both developments. It will have to occur on a parcel north of the proposed Chuck E. Cheese and existing restaurant on the Centre Place development. 14 Attachment 5 JUN $ ZOOZ PLANNING & 'DEVELOPMENT DENTON PARK 35 ADDITION ALTERNATIVE DEVELOPMENT PLAN 'REQUEST PRESENTATION TO PLANNING & ZONING COMMISSION JUNE 12, 2002 TABLE OF CONTENTS w g LETTER OF REQUEST- ALTERNATIVE DEVELOPMENT PLAN CITY STAFF APPROVAL OF ALTERNATIVE DEvELOpMENT PLAN PROJECT DEVELOPMENT DESCRIPTION VARIANCE #1 VARIANCE #2 6. VARIANCE #3 7. TRAFFIC CONSULTANTS LETTERS OF SUPPORT., 1-35 DENTON LAND, LTD. June 4,2002 Mr. Salty Rishel Chairman - Planning & Zoning Commission c/o Mr. Doug Powell Director of Planning CITY OF DENTON 221 N. Elm Street Denton, Texas 76201 Re: Denton Park 35 Addition: Alternative Development Plan Application & Request for Approval Dear Chairman ~ishel: 1-35 Denton Land, Ltd. is the owner of Denton Park 35 Addition, a 7.5 acre parcel of land being developed and subdivided into five (5) commercial/retail lots on the 1-35 north (west) bound Service Road, between Teasley Lane and Fort Worth Drive. Our development received final plat approval from the Planning and Zoning Commission on May 8, 2002. One of the platted lots may be subdivided and replatted in the future, resulting in a total six (6) lot subdivision. Although our development has received final plat approval, there are several issues, relating to the development of our subdivision, and the subsequent site development of all lots therein, wherein our interpretation of the Development Code does not agree with Staff's interpretation. These referenced issues have been points of contention and disagreement since long prior to receipt of final plat approval. Due to the fact that these issues will impact and affect each project developed within our land development subdivision, we attempted to resolve the issues prior to our final platting. Unfortunately, Staff took the position that each of these was not a "Plat" issue, but, that they were "Site Plan Design" issues; and, they would not allow us to have final discussions regarding these disputed issues, prior to plat approval. These issues have now arisen again, as they have been listed as points of denial on project construction plans submitted by our first lot purchaser. CEC Entertainment, the owner of the Chuck E. Cheese restaurant concept, is currently contracted to purchase Lot 1 of our subdivision, pending our ability to successfully resolve the listed issues. They have submitted construction drawings to the City of Denton in order to obtain a building permit; and, their plans have been rejected due to the failure of their plans to comply with Staff's interpretation regarding the referenced issues. Their commitment to proceed with their restaurant, on our site and in Denton, is contingent upon an acceptable resolution of the listed issues, as well as other issues on which their interpretation is in conflict with that of Staff. In an effort to alleviate these problems, and expedite the construction of the Chuck E. Cheese restaurant, CEC Entertainment is now applying for an Alternative Development Plan. Based upon the enclosed e-mail correspondence from David Hill to me, Staff is in agreement to support most of the issues of variance from Staff's interpretation of Code; in both the CEC Alternative Development Plan and in an Alternative Development Plan submitted herein by 1-35 Denton Land, Ltd. 8150 N. Central Expressway + Suite 835 + Dallas, Texas 75206 214/369-4000 + fax 214/987-4000 page 2 Planning & Zoning Commission June 4,2002 By the rights granted to us in Section 35.3.4 of the New Development Code (P. 11-12), We are hereby, requesting approval of the submitted Alternative Development Plan for Denton Park 35 Addition and all lots therein, which incorporates variances from staff's interPretation of the Development Code, as listed below: 1, Vehicular Traffic Stacking Location and Distance at the entry to our subdivision 2. Lot-to-Lot Connectivity- Interior 3. Lot-to-Lot Connectivity - Exterior It is our opinion, and that of our legal counsel and the four (4) transportation consultants that we retained to study the issues, that our position on each of the issues is in full compliance with our rights, as granted in the New Development Code; and, that Staff's interpretation of each of these issues 'is invalid and in violation of our legal rights to develop our property. In order to allow us to proceed with the timely development and sale of the lots within our subdivision, and jn order to allow our lot purchasers to proceed with the.timely development and construction of the buildings on their lots, without further delays relating to the issues, we hereby request that the Planning and Zoning Commission review our facts and approve the submitted Alternative Development Plan, as related to our total subdivision, without the continued requirement to bring forth these issue conflicts with the site plan review for each lot. Although Staff is not in agreement that ours is a proper interpretation of each of the issues, they do now agree that specific design elements that we have provided, relative to' (1)Vehicular Traffic Stacking Location and Distance at the entry to our subdivision; and (2) Lot-to-Lot Connectivity - Interior, allow them to concede that our Alternative Development Plan "meets the intent of the Denton Plan and Development Code.; and, that they will support these variances in the Alternative Development Plan. However, Staff is opposing our request for variance as related to Lot-to-Lot Connectivity- External. We are providing a detailed explanation of each of the issues of variance, including (1) the pertinent Code section; (2) our position on the issue, with exhibits; (3) Staff's position of support or opposition, attached hereto. We thank you and all of the Planning & Zoning commissioners for your consideration of our Alternative Development Plan. DENTON PARK 35 ADDITION ALTERNATIVE DEVELOPMENT PLAN REQUEST VARIANCES FROM STAFF INTERPRETATION OF CODE Location & Distance of Subdivision Vehicular Traffic Stacking Supported by Staff Waiver of Requirement for Lot-to-Lot Connectivity - Exterior Opposed by Staff Waiver of Requirement for Lot-to-Lot Connectivity - Interior Supported by Staff ISubj: Denton Park 35 ADP Date: 6/3/02 6:28:35 PM Central Daylight Time From: David. Hill@cityofdenton.com (David Hill) To: Twdfocus@aoLcom . CC: Chades. Fiedler~cityofdenton. com (Charles Fiedler), David. Salmon@cityofden. tOn. com (David Doug. Powell@cityofdenton. com (Doug Powell), Larry. Reichhart@cityofdenton. Corn(Larry Reichhart) $almon). Weldon: As per our conversation this evening, the following arrangements apepar to be suitable to pursue development of the Chuck E. Chees project: 1. The appeal of staff's site plan determination will be converted to an Alternative Development Plan application for the following items: a. Stacking Distance (for the entire subdivision, with staff support) b. Internal Connectivity (for the entire subdivision, with staff support) c. External Connectivity (will not be required for the CEC . parcel only, and I don't think it needs to be part of the ADP apphcation - check with Doug Powell on this, staff will support) d. Parking Supply (I indicated to you that CEC would have to prove that the offstreet parking supply will be used on a regular basis even though it exceeds maximum allowed) e. Pervious paving (I indicated that staff would identify the percentage exceeded, and the point that CEC says they will be used regularly; P&Z will have to make final decision) 2. The conditions of this offer need to be ac[ed on by tomorrow (Tuesday,.6/4). Please contact Doug Powell to determine how the application needs to be modified to change into an ADP applicalion). If received by late Wednesday/first thing Thursday morning, the application will be added to the June 12th P&Z agenda, and Io be fasl-tracked an placed on the June 18th Council agenda.- 3. You will still reserve the ability to appeal the external connectivity determination to P&Z at a later date, which will be considered an extension of the currenl application with no additional application fee. The direction given to staff by Council tomorrow evening regarding this issue may have a bearing on your eventual decision on ,whether to appeal or dot. Staff respectfully disagrees with the position you have taken regarding external connectivity, and will oppose tile appeal. I hope this summarizes our conversation correctly. I want to again clarify the staff position taken during our most recent meeting. An appeal of staff's interpretation of the remaining issues has citywide implications, and staff will oppose such appeals vigorously. More importantly, staff has no discretion io alter these regulations. The ADP process, however, does allow flexibility and gi.ves the applicant the opportunity to mitigate .negative impacts, with the P&Z and Council authorized to make discretionary decisions. In conclusion, my staff will work to make your project happen within the confines of the regulations adopted by the City Council. If you have any questions or comments, please contact me. Dave Hill Asst. City Manager - Dev. Svcs. City Hall, 215 E. McKinney, Denton. TX 76201 940-349-8314 9q0-349-6595 (fax) dmnill@cityofdenton.com Tuesday, June 04, 2002 America Online: Twdfocus DENTON PARK 35 ADDITION PLANNING & ZONING COMMISSION REQUEST FOR ALTERNATIVE DEVELOPMENT PLAN 'PROJECT DEVELOPMENT DESCRIPTION Denton, Park 35 Addition is a 7.5 acre commercial/retail land development subdivision, zoned Downtown Commercial General (DC-G). Final Plat approval for this project was granted by the P&Z Commission on May 8, 2002. The project fronts on 1-35E northbound (westbound) Service Road, between Teasley Lane and Fort Worth Drive. The approved final plat allows subdivision of the property into five (5) individual lots, with only two of these lots having actual frontage on the adjacent public roadway (I-35 Service Road). All of the sites are accessed via a public access and fire lane easement over private property. Lot #1 is currently under contract to CEC Entertainment, the parent company of the Chuck E. Cheese restaurant concept. Pending approval of the proposed Alternative Development Plan, CEC will be cons.tructing a Chuck E. Cheese restaurant on this site. The subdivision is being developed, with final plat approval granted, as allowed under Section 35.16.7.B.2 (p.160) of the New Development Code. Section 35.16.7.B.2 (p.160) of the New Code provides for the development of infill sites or other special condition sites, wherein the current developed condition of surrounding sites makes it unfeasible to provide street connectivity between the site being developed and surrounding sites. This is accomplished by providing access to the lots by means of the use of a public access and fire lane easement, as opposed to a public roadway. This public access and fire lane easement provides access to all lots within the new development; and, by means of a single common driveway and curb cut, connects each of the lots to the adjacent roadway (I-35 Service Road). Section 35.16.7.B.2 (p.160) of the New Code specifically states: "Non-Single Family Residential Private Drive. Non-Single family residential lots within a subdivision or addition that is surrounded by developed property making it unfeasible to provide street connectivity, do not have to abut a public street if such lots have access to a public street by a public access and fire lane easement approved by the City. The easement must be at least 24 feet wide and constructed, marked and maintained to meet the standards for parking lots as contained in the Transportation Criteria Manual and for fire lanes as contained in the Fire Code. The stacking requirements for public streets shall apply to the public access and fire lane easement at the point where it intersects with a Public street. In addition, the public access and fire lane easement shall be considered a driveway or curb cut access to the public street for all such lots. Each non-residential lot shall have a minimum thirty (30) feet of frontage on the public access and fire lane easement. Exhibits l-A, l-B, 1-C, 1-D and l-E, included herewith, show the specific configuration and lay-out of the Alternative Development Plan, as well as: 2. 3. 4. 5. Required and defined "public access and fire lane easement" Required and defined "stacking" for turning into the project Required and defined "driveway and curb cut access to the public street for all lots" Site plan and layout for the pending Lot #1 sale to CEC Entertainment Total Parking for total project and for Lot #1 EXHIBIT N CAMPUS PHASE H HOUSING ADDITION l/ii I ~ATE 3~ SELF STORAGE {FOR~v~I~Ly A~) I I I CENTRE PLACE PHASE I DESIGNATED STACKING- 80 FT. DEI~ON PARK 35 ADDITION ALTERNATIVE DEVELOPMENT PLAN ...,..'":. EXHIBIT t-B N INTERSTATE 35 SELF STORAGE (FOP. M~,Ly ACt) o CAMPUS HOUSING ADDITION PHASE II /// iI iI .... .--~ ...................... .... T-'~;- 7.--- - -.. =--. ,-..,..__~ ............ ! ,' i DC EXTERNAL CONNECTIVITY .... :~--'~--~--~::.~. I ' I I ~ P~CE P~E I DESIGNATED 8UBDNISlON DENTON PARK 35 ADDITION EXHIBIT 1-C STACKING 30 FT CHUCK E. CHEESE SITE PLAN EXIT STACKING N I 0 I0 20 30 40$0 80 SCALE tN FEET CENTRE PLACE PHASE I STACKING 61.5 FT DENTON PARK 35 ADDITION .............. ZJ G--] j ET-.] :'- ] .~ j ! / ! / ,, /. EXHIBIT 1-E DENTON PARK 35 ADDITION PROJECTED PARKING MAXIMUM REQUIREMENTS Lot # 1 2 3 4 5 Parking Use Building Area per Code Restaurant 10,568 sq.ft. 106 * Restaurant 10,000 sq.ft. 100 * Restaurant 6,600 sq.ft. 66 * Medical Office 6,600 sq.ft. 19 ** Hotel 100 rooms 102 *** TOTAL Parking Required 135 120 79 44 110 488 Ci,~, Regulations for Parking: Restaurant Parking: the lesser of I space per every 4 seats or 1 space per 100 sq.ft. Lot #1: CEC Entertainment- 1 space ! t00 sq.ft. Lot #2: Unknown - 1 space 1100 sq.ft. Lot #3: Unknown - 1 space 1100 sq.ft. Medical Office Parking: 1 space 1350 sq.ft. Lot #4: Unknown - 1 space / 350 sq.ft. Hotel: 1 space per room plus manager plus conference room requirements Lot #5: Unknown - assume 100 rooms, limited service, no conference facilities DENTON PARK 35 ADDITION PLANNING & ZONING COMMISSION REQUEST FOR ALTERNATIVE DEVELOPMENT PLAN VARIANCE #1 VEH{CULAR TRAFFIC STACKING LOCATION & DISTANCE AT ENTRY TO SUBDIVISION PERTINENT CODE SECTION: Section 35.13.10.A.l.a (p.139) of the New Code states: provide adequate stacking distance for all entrances." ..."All developments shall Section 4.1. C (p.65) of the Transportation Criteria Manual defines "Stacking" requirements based upon number of parking spaces on a specific IoL DEVELOPER INTERPRETATION OF CODE: Subdivision Developer (Developer) contends they are in full compliance with all Code requirements for "Stacking", including location and distance. Developer understands the need for "stacking" and fully understands those sections of the Code which define the'requirements for "Stacking", as listed above. Although not defined at any place within the Code or the Transportation Criteria Manual, Staff is stating that the "Stacking" distance for entering the subdivision is based upon the total number of parking spaces for the total five lot subdivision. Based upon the maximum amount of development possible on the five lots, when combining the total of (1) required landscaped area, plus (2) building square footage, plus (3) required parking, the total count of parking spaces will be between 300 and 500 spaces. This total amount of parking spaces, according to Section 4.1,C (p.65) of the Transportation Criteria Code, will require that the Developer provides a "Stacking" distance of 60' at the entrance to subdivision. Further, the purchaser of Lot #1, CEC Entertainment, will be 'providing 132 parking spaces for the Chuck E. Cheese restaurant. When complying with the required calculations, as listed in Section 4.1.C of the Transportation Criteria Manual, for "Stacking" for the turn into the Lot #1 parking lot, the required "Stacking" distance is 40'. "Stacking", when used in relation to traffic and transportation herein, is a traffic safety term. It means that the development must provide an adequate safe distance to allow the "turning" traffic to slow down and "stack" as they are preparing for the turn, or to "wait" as traffic in front of them is performing the referenced "turn" off of the thoroughfare they are traveling on, onto the new thoroughfare that they are turning onto, or into the parking lot that they are turning into. Developer has provided for the required ,Stacking" diStance of 60', prior to the turn into the subdivision, in the right turn deceleration/stacking lane that Developer has agreed to construct adjacent to the currently existing lanes of the 1-35 Service Road. (According to the Traffic Impact Analysis, the construction of this right turn deceleration/stacking lane is not a requirement necessitated by traffic capacity.) Developer and CEC have provided for the required "Stacking" distance of 40', prior to the turn into Lot #1, within the public access and fire lane easement. (According to the Traffic Impact Analysis, this "Stacking" distance is not needed, due to the presence of 2 lanes of traffic flowing into the subdivision, but, if needed, the stacking distance would be 25'.) Developer and CEC have, therefore, complied with all requirements of the New Code, related to "Stacking" requirements for the overall subdivision, and for the development of the Chuck E. Cheese restaurant development on Lot #1. DENTON PARK 35 ADDITION PLANNING & ZONING COMMISSION REQUEST FOR ALTERNATIVE DEVELOPMENT PLAN VARIANCE #1 VEHIC[JLAR TRAFFIC STACKING LOCATION & DISTANCE AT ENTRY TO SUBDIVISION STAFF INTERPRETATION OF CODE: Staff contends that, according to their interpretation of the Code, the Developer and/or the Lot #1 developer are required to provide the 60' "Stacking" distance on the inside of the subdivision, after the intersection of the 1-35 Service Road and the public access and tim lane easement, that is, after the turn that the stacking is lined up waiting for. This would require that the first driveway entry into the Lot #1 Chuck E. Cheese restaurant be relocated, resulting in an overall redesign of the Chuck E. Cheese site plan. ALTERNATIVE DEVELOPMENT PLAN: Based upon the fact'that the Denton Park 35 Addition Alternative Design Plan (A) provides for a 220' long deceleration/turn lane, along the existing 1-35 Service Road, into the subdivision; and, (2) provides for two (2) lanes of roadway entering the subdivision and two (2) lanes exiting the subdivision, Staf{ is of the opinion that the subdivision provides equal and adequate stacking and traffic flow controls; and, therefore, Staff is willing to waive the 60' internal stacking requirement and to support the Chuck E. Cheese site plan, and its driveway locations, as designed, with the approved design overriding any other stacking setbacks defined in the Code. DENTON PARK 35 ADDITION PLANNING & ZONING COMMISSION REQUEST FOR ALTERNATIVE DEVELOPMENT PLAN VARIANCE ft2, LOT-TO-LOT CONNECTIVITY - EXTERIOR PERTINENT CODE SECTION: Section 35.13.10.A.l.b (p.139) of the New Code states: "Ail non-residential development, excluding industrial, shall provide access to adjoining properties or developments." Section 35.13.10.A.l.a (p.139) of the New Code states: "Afl development shall provide access that complies with Access Management principals of location, spacing and sharing of curb cuts .... " Section 35.16.7.B.2 (p.160) of the New Code specifically states: "...lots within a subdivision or addition that is surrounded by developed property making it unfeasible to provide street connectivity, do not have to abut a public street if such lots have access to a public street by a public access and fire lane easement approved by the City .... In addition, the public access and fire lane easement shall be considered a driveway or curb cut access to the public street for all such lots." DEVELOPER INTERPRETATION OF CODE: Subdivision Developer (Developer) contends they are in full compliance with all Code requirements for "External Connectivity,'. Developer understands the general need for "External Connectivity", as defined in Section 35.13.10.A. 1.b, as it is meant to require that developments provide public roadway connections to adjacent and/or adjoining properties. This is an understandable and justifiable regulation which would be needed as part of a municipal transportation plan, or master thoroughfare plan. However, in certain cases, that is not possible. The Denton Park 35 subdivision is being developed in compliance with Section 35.16.7. B.2, which clearly states that, in the case of this subdivision, "...it is unfeasible to provide street connectivity..." The inclusion of this Section 35.16.7.B.2 in the New Code clearly supersedes and overrides the Section 35.13.10.A.1.b requirements for "External Connectivity" by means of public roadway connectivity. Therefore, the Developer is in full compliance with the requirements of the Code, as defined and allowed, in Section 35.16.7.B.2, to waive the requirement for roadway connectivity. Developer further understands the need for "External Connectivity", as defined in Section 35.13.10.A.l.a, as it is meant that multiple adjaCent Private properties are to be required to share the same curb cuts and driveways onto adjacent public roadways, through the proper location, spacing and sharing of curb cuts, when the adjacent public roadway is a relatively heavily trafficked thoroughfare. This is generally an understandable and justifiable traffic control tool intended to prevent too much traffic from entering the same public roadway, at the same time, in the same area, hence creating traffic hazards. In the case of this subdivision development, as allowed under Section 35.16.7.B.2, all of the lots within the subdivision are already sharing the same curb cut and driveway onto the adjacent public roadway, as is stated in Section 35.16.7.B.2 as "...the public access and fire lane easement shall be considered a driveway or curb cut access to the public street for all such lots .... "Therefore, the Developer is in full compliance with the requirements of the Code, as defined and allowed, in Section 35.16.7,B.2, to require the sharing of curb cuts. DENTON PARK 35 ADDITION PLANNING & ZONING COMMISSION REQUEST FOR ALTERNATIVE DEVELOPMENT PLAN VARIANCE #2 LOT-TO-LOT CONNECTIVITY - EXTERIOR STAFF INTERPRETATION OF CODE: Staff is stating that, according to their interpretation, Developer and/or individual lot developers are required to provide ~External Connectivity" to another public street through a driveway connection from one private property parking lot, within the subdivision, to another private property parking lot, outside of the subdivision, and from there to an adjacent public street, being Centre Place Drive. JUSTIFICATION FOR VARIANCE REQUEST: Section 35.16.7.B.2 (p.160) of the New Code, the code section which allows development of this subdivision, clearly states ':..lots within a subdivision or addition that is surrounded by developed property making it unfeasible to provide street connectivity, do not have to abut a public street if such lots have access to a public street by a public access and fire lane easement appro, ved by the City.... In addition, the public access and fire lane easement shall be considered a driveway or curb cut access to the public street for all such lots." This subdivision was granted and platted, based upon the premise that the surrounding sites were already developed, making it unfeasible to provide street connectivity. The application of this Section 35.16.7.B.2 clearly supercedes and overrides any other regulations for connectivity. Staff has stated that their requirement for the connectivity of a private property lot within this subdivision, to a private property lot outside of this subdivision, and then to a public roadway (Centre Place Drive) is supported by the Traffic Impact Analysis performed for the subdivision development. But, the initial Traffic Impact Analysis had no recommendation for any secondary connectivity other than that provided by the private access drive to the adjacent public roadway (I- 35 Service Road). The transportation engineer providing the Traffic Impact Analysis found that the traffic flow access provided by the private access drive to the public roadway was totally adequate and properly designed. In their attempt to support their desire for this secondary exterior lot-to-lot connectivity, Staff dictated that the traffic engineer incorporate the study of the exterior lot-to-lot connectivity into his Traffic Impact Analysis. (see enclosed documentation) In all cases, two access points are better than one, but, in the case of the development of this subdivision, this second connectivity is "unfeasible" and is, according to the New Code, not required. Further, as verified by the initial Traffic Impact Analysis, it is not needed. Lot-to-lot connectivity is a good traffic tool, if it is being used 'as a traffic tool to keep traffic off of a public road. It is also a good traffic tool when being used within a large area with common uses, but perhaps separate property owners, such as a regional retail mall. But, the mandate to provide lot-to-lot connectivity in all instances in an unjustifiable and unwarranted burden on multiple private property owners, in many cases without sufficient public benefit. In the case of this subdivision, allowed by Section 35.16.7.B.2, as stated in Section 35.16.7.B.2, this exterior lot-to-lot is not legally required. In the case of this application, this is not a use of lot-to-lot connectivity to keep traffic' off of the adjacent public road, since all of the lots within this subdivision are already using one common driveway and curb cut to access the adjacent public road. DENTON PARK 35 ADDITION PLANNING & ZONING COMMISSION REQUEST FOR ALTERNATIVE DEVELOPMENT PLAN VARIANCE #2 LOT-TO-LOT CONNECTIVITY - EXTERIOR JUSTIFICATION FOR VARIANCE REQUEST: In the case of this subdivision, the requirement for exterior lot-to-lot connectiVity creates unnecessary and unwarranted burdens, both financial and legal, for two separate and unrelated' property owners. From a financial basis, when the first developed lot agrees to a location for this connectivity curb cut and driveway, they will be placing the curb cut and interconnecting driveway in a position that is most acceptable to them. But, 'the location most acceptable to this first lot owner may be detrimental to the development layout of the second connected lot, thereby reducing the development flexibility on that lot, and, consequently reducing the lot's value. From a legal basi.s, the problems are at least twofold: The requirement to force a connectivity of private property to private property, without the agreement of the property owners, for the sole purpose of eliminating some limited amount of traffic on a public roadway, is clearly a taking of private property rights without compensation. Without an adequate justification therefor, this is probably illegal and unenforceable. 2. Assuming the interconnectivity of public road to private lot to private lot is required; and, assuming that an uninvited vehicle enters a private property via access across an adjacent connected private property; and, subsequently injures or kills an individual or does property damage on the second property, then the property owner over which the vehicle drove to access the property on which the damage was dOne is exposed to liability for allowing access to the second property. Based upon these facts, we request that the P&Z Commission waive any requirements for external lot-to-lot connectivity for this subdivision or any of the lots therein. Rpr 21 02 10:53a Jack Hatchell 972-424-1368 .p.2 I)ENT N City Half East · 601 E. Hickory, Suite B o Derdon, Texas 76205 (940) 349-8910 Jack Hatch., PE HatcheJl & Associa~tes P,O. Box 260119 Plano, TX ?$026-~! 19 (940) 349-~95~ (fax) , Metro (972) 434-2529 RE: Traffic Impact Analysis, Denton Park 35 dated April 2002 Dear lack: Comments conccn~g thc above noted document; A. The link capacity analysis and thc applkablc conclusion(syreco'mmendation(S) requested for: i) Alegra Vista/Center Place Dr. is not apparent, ii) I-3 SE ~rvi~-mad is..,ot apparent, iii) Meadow St, is not apparent, h'sheuld he no~ed that this study do~s not. indicate any traffic'distributed to'Meadow'St, and there is rso discussion as to why or why not. It would seem apparent that some of the traffic that is coming from Dallas Dr. (via Alegra Vista/Center'Pta~ Dr.) would use this roadway to remm :to their Origin because it is thc shortest route (especially the northbound Dallas. Dr. left tums to Alegra vista), This roum would seem to be ever/mode'thc case because this devdgpment is not providing connectivity to Cefiter Place Dr. (a.d therefore traffic back to the intersection of Dallas Df. tAle. Bra Vista). B. The distribution for this devdopment's trips is 85% to the 1-35 service road and 15% from Dallas Dr..Given Dallas. Dr.-services-the center of'town.(to, the north) and services Teasley I.a,(wbi~h le. cvic~s the ~s__tgdy s_kle oftl~ City), the distribution provid~ by this st[/d~ ma~ not ie~lect a~ual'trip distribution. C. Th~e is ~o analysis included to'support the conclusions resardin$ vehicle ~tackillg. Bccauso Of the nature of the proposed ~estaurant (eel~ratln8 birthday parties and such), it would bc expected that queues would'be more concentrated over a numbe~ of short periods, as opposed to a more even distribution. "Dedicate# to Qua/FEI S~w[ce '" Rpr ~1 02 10:53a ~ack Hatchell p.3 There is no analysis included as to how the conclu~on was derived for the internal traffic circblafion comments. As a note, the conclusion concerning internal traffic circul~ion appli~ only to the need or lack thereof for internal connectivity and d~s not appear to consider connectivity/access to public ways and distribution to these public ways {i.e. is there a~y need al att for or reason to need at least one other access th,~.~ the one provided to IH3'SE ' no~,hbound fi'ontage road). Once the analysis Ms been completed, the City of Denton w/Il make its recommendations concerning what development exactions ~ be required for ti~s &velopm~m. If you should have Imy questions or comments, please feel flee to contact me at {940) 349-8910 ~ / /~ Bud Vokoun Attachments: none Cc David Salmon Frank Payne Marcy Ratcliff Pa~e2 Jun 02 02 12:39p gack Hatche11 Traffic Impact Analysis Denton Park 35 Addition IH 35E Westbound Frontage l~oad West of Teasley Lane Denton, Texas Prepared for: 1-35 Denton Land, Ltd. Prepared by: Jack Hatchell & Associates April 2002 For Information Contact: Jack Hatchell 972-424-1368 .)'u 13 O2 O2 ~ack Hatche11 97~-424-1368 Table of Contents L Introduction ................... Purpose 1 Study Procedure .................................................................................... 1 IL Area Characteristics ....................................................................... .. . .. . .. . . . . 2 Study Area .............................................................................................. 2 Area Roadway System ........................................................................... 2 Figure .1: Site Location ........................................................................... 3 Existing Traffic Volumes .................................................... : ..................... 2 p.3 RI. Site Characteristics ................................................ 4 4 Proposed Development ............................................................................. Trip Generation ....................................... ~ .............................................. 4 Table ~: Tdp Generation. Data ......................................................... . ......... 4 IV. Projected Traffic Volumes .................................. 5 Proj e._cted Background Traffic .................................................................... 5 Projected Site Traffic ............................................ : ................................... 5 Projc~ed Total Traffic ............................................................................. 5 Figure 2: Background Year 2005 Total Traffic ...................................... 6 Figure 3: Projected Site-Generated Traffic ....................... ~ .................... 7 Figure 4: Projected Year 2005 total Traffic ........................................... V. Capacity Analysis and Results .................................................... . ..... ..... . 9 Intersection Capacity ' ' 9 Results of Analysis .............................................................................. 9 Table 2: Intersection Capacity Analysis .......................... ~ .................... VI. Conclusions and Recommendations ........................................................ Appendix A: Existing Traffic Volumes Appendix B: Capacity Analysis Worksheets 10 11 ,]un O~ 02 12:39p 3ack Hatchell 972-~-1368 L Introduction 1-33 Denton Land, Ltd. is making an application to site plan a development located on the IH 35E Westbound Frontage Road (WBFR) west of Teasley Lane in Denton, Texas. The site, called Denton Park 35 Addition, is proposed to. Have two quality restaurant pad sites, two office pad sites and a motelpad site. The City of Denton requires that a traffic impact analysis (TIA) be submitted as part of ~e site plan. To comply with this requkement, Focus Service Group has retained the services of Jack Hatchell & Associates to prepare this study. Purpose This report assesses the impacts of anticipated site-g~nerated tr~sffie 'on the area roadway system and identifies any measures necessary to mitigate any adverse traffic impacts caused by the proposed development. Intersection levels-of-service are the standard measures of effectiveness ut'flized by traffic engineering professionals to evaluate traffe impacts. This report presents background information rehtive to the site, study methodology, :]~dings, conclusions, and recommendations for the proposed development's tiaffic characteristics as they relate to the area roadway system p.4 Study Procedure To make a thorough analysis of the traffc impacts of the proposed developmeut, the following procedures were followed: · Conversations were held with the City of Denton engineering staffto discuss and confirm study proced~es and assumptions fo~ traffic associated with the proposed devdopment. · A field reconnaissance of the site was made to obtain information relative to the existing roadway geometfics and site characteristics. · Projected directions of approach to/from the proposed devdopment were deternfii~cd based on site access and locations of residential areas. · City staffidentified the impacted intersections to be analyzed. Capacity analyses were performed at the study intersections. · This report was prepared to document the analysis, findings, and recommendations of the study. Jun 02 0;~ 1::':40p ~ack Hat, cheil H. Area characteristics De~ton Park 35 Addition is bordered on the south by the IH 35E WestbOund/Northbound Frontage Road and on the east and West by commercial uses. A forty-foot wide public access easement street is proposed to provide access to/frOm the IH 35 E Westbound Frontage Road for the proposed development sites. Study Area The site for the proposed development is located on the IH 35E Westbound Frontage Road between Teaslcy Lane and US 377. A study area along thc IH 35E WBFR between a proposed new street (Center Place Drive) and Meadow Street and the intersection of Dallas Drive at Alegrc Vista Drive was established by the City. Figure .1 illustrates the study area, site location and area roadway system_ p. 5 Area Roadway System Denton Place 35 Addition will be served directly by the IH 35E WBFR via a private street. Dallas Drive will provide indirect access to the site via its new connection to Crater Place Drive. IH 35E is a major north/south freeway that traverses thc State of Texas and continues north. It has two two-lane one-way frontage roads. Dallas Drive is US 77. It is a five-lane roadway with a center two-way left-turn lane. Dallas Drive connects IH 35E with Downtown Denton and will provide an alternative route for persons traveling to the site from the north and east areas of Denton. Center Place Drive is a new street that connects the IH 35E WBFR with Dallas Drive via Alegre Vista Drive. It is a wide two-lane roadway. Existing Traffic Volumes Existing peak-hour traffic volumes for the intersection of IH35E WBFR at Meadow Drive and Alegre V'~ta Drive at Dallas Drive were obtained from a traffic impa~t analysis (TIA) prepared by DeShazo, Tang & Associates, Inc. This TIA was prepared for Centre Place, a proposed mixed-use development that is located immediately east of Denton Park 35 Addition. These existing traffic volumes are presented in the Appendix to this report. 3un 02 02 12:~0p ~ack Hatohell ~)72-~2~-1368 .p.6 }77 m 35E EBFR Not ! Scale Alegre ce Drive WBFR ' Teasley FIGURE 1 SITE LOCATION Jack Hatcheli & Associates Jun OZ 02 12:40p Jack Hatche11 97Z-424-1368 p.7 Site Characteristics ProPOsed Development Denton Park 35 Addition is proposed to contain 22,568 square feet (sf) of quality restaurant, 12,000 sf of general office, 12,000 sf of medical office and a 100-room motel A 10,568 square- foot Chuck E. Cheese restaurant is pl~n~ed on the southeast comer of the property. Trip Generation The traffic expected to be generated by a parcel of land is primarily a function of the use of that land. The volume of traffic associated with any development depends on the proposed land uses and their dens~ties of development. To determine the expected trip generation of the proposed development, a nationally recognized and accepted standard published by ITE entitled Trip Generation, 6th Edition was used. This publication states trip generation rates and equations for varied land uses based upon actual surveys of those land uses. Land use and intensity, trip rates, and daily trips for both the projcvted land use and proposed zoning are slxown below in Table h Table I: Trip Generation Data Land Use In A.M. Peak P.M. Peak Rate Trips Rate Trips Out In Out In Out In Out DaVy Rate Trips Quality Restaurant 22,568 sf General Office 12,000 sf Medical Office 12,000 sf Motel 100 rooms Total 0.27 0.54 6 12 5.02 2.47 113 56 1.37 0.19 117 2 0.25 1.24 2 15 1.94 0.49 23 6 0.99 2.67 12 32 0.23 0.41 23 41 0.31 0.27 31 27 69 61 158 130 89.95 2,030 11.01 132 36.13 434 9.11 911 3,507 Jun 0;~ o2 12:40p Hatche 11 Ei?::'-4;~4- 1368 ..p. 8 IV. projected Traffic Volumes Traffic voluraes expected to exist on the roadway system are a combination of the existing traffic plus the traffic projected for the proposed development. Projected Background Traffic The DT~cA TIA determined Year 2005 traffic volumes for the intersections of Center Place Drive and Meadow Street at the IH 35E WBFR and Dallas Drive at Alegre Vista Drive. Those volumes were based on a 2 percent annual gxowth in existing traffic and tho projected site-generated traffic for the Centre Place mixed-use development. Projected background traffic volumes for the Year 2005 from the DS&A report are shown in Figure 2. Projected Site Traffic Traffic projected to be generated by the proposed development is based on ITE trip generation rates as shown in Table 1. During the momi,,g (a.m) peak hour, the proposed development is proje~ed to produce.69 additional vehicles coming into the ske and 61 leaving the site..During the afternoon (p.m) peak hour, 158 vehicles are projected to enter the site and 130 leave. Assignment of the site-generated traffic to the private street serving fl~'~roperty is shown in Figure 3. It is assumed that 15 percent of the site-generated traffic will use th, Dallas Drive/Center Place Drive connection to access the site. Thirteen percent is projected to travel from the northwest and two percent from the southeast. Projected Total Traffic Projected total traffic for the study intersections is the combination of the background traffic plus the projected site-generated traffic. These projected total traffic volumes are shown in Figure 4. It is assumed that the parcels in Denton Place 35 Addition will be developed by the Year 2005. Jun Hatche11 S72-424-13S8 p.1 Not Scale 846(174~]~ ~ 1495(1587) Meadow St. Denton35 Dr. ~ 433(426) m 3~ WB~ Teasle Legend xxx = A.M. Peak Hour' (xxx) = P.M.: Peak Hour Ell. FIGURE 2 BACKGROUND YEAR 2005 TOTAL TRAFFIC Jack Hatch~ll & Associates __ Jun O~ O~ 1~:~2p ~aok Ha~ohe11 S72-424-13G8 Not ! Scale ~ ..... Meadow:St. 'Denton 35 Dr. J1377 Legend Tcash xxx. = A.M. Peak Hour . (xxx) = P.M.. Peak Hour FIGURE 3 PROJECTED SITE-GENERATED TRAFFIC Jack Hatchell & Associates. Jun 02 l~:4Zp Jack Hatchel! 972-424-!368 p.3 Not ! Scale . 877.(.I~7_~ 1495(1587) 13Q)1 t__69(158) 264(309 L_253(292) U177 _ Teasle' Legend xxx = A.M. Peak Hour (xxx) -- P.M.~ Peak Ho~r FIGURE 4 PROJECTED YEAR 2005 T~TAL TRAFFIC Ln. Jack Hatchell & Associates ~un O~ 02 12:~p ~ack Hatche11 972-~2~-13G~ .p.~ V. Caoaci .ty Analysis and Result~ Analyses were performed at the intersections oflH 35E WBFP,, at Center Place Drive, Denton 35 Drive, Meadow street and Dallas Drive at Alegre Vista Drive to determine the demand, capacity, and level-of-service (LOS), Level-of-service is a qualitative measure of identifying how effectively traffic operates at an intersectiOn or along a roadway llnk and is defined by categories A through F. LOS "A" represents very good traffic flow and LOS "F" represents poor traffic flow and a high level of traffic congestion. Intersection Capacity Capacity is a function of the number- of lanes, the type of movement and the make-up of the traffic in that movement. The methOdology used in this study for determimn' g capacity, delay, and LOS at an intersection is outlined in the 1994 and 2000 Highway Capacity Mannal~ ('I-ICM). 'InterSection capacity analyses were performed at the study intersections using Highway Capacity Software (HCS) and Signal2000, computer programs developed to emulate the procedures outlined in the HCM for unsignalized and signalized intersections. Results of the Analysis Results of the capacity analyses found that the intersectiOns of IH 35E WBFR at Center Place Drive, Denton 35 Drive and Meadow Street operate at LOS B under Year 2005 total traffic conditions. The intersection of Dallas Drive at Alegre Vista Drive is projected to operate at LOS E during the a.m. peak hour and F during the p.m. peak hour as a stop sign controlled intersection. The intersection was tested as a signalized intersection and found to operate at LOS A in the morning and LOS B during the attemoon peak hour. The TIA prepared for the Centre Place development by DeShazo, Tang & Associates, Inc. recommended traffic signals at the intersection based on Centre Place plus existing traffic. Remits of the capacity analysis are shown in Table 2. Worksheets for the intersection capacity analyses are provided in the ,4ppendix to this report. ' Jun 02 02 12:43p Jack Hatchell 972-424-1368 Table 2: Intersection Ca aci .4nal x' ~ Dr.__at ~. e_~_e Vista Dr. * 0.81 18.8, w~ta traffic ~gnals B B B A B B B B p.S l0 .,'[un ~ack Hatche]l VL .Conclusions and Recommendation.~ Tile results of the analyses presented in this study indicate that, with the exception of DaI~s Drive at Alegre Vista Drive, the study intersections operate at an acceptable level-of-service under Year projected 2005 total traffic conditions. Installation of a traffic signal at the intersection of Dallas Drive and Alegre Vista Drive will allow the intersection to operate at an acceptable level-of-service. Although not needed for traffic capacity, a westbound separate right,tufa lane on the IH 35E .W~ FP. at Denton 35 Drive has beea offered by the developer of Denton .Park 35 Addition and is recommended. This separate right-turn lane will mininaize the impact of turning tra//ic on through IH 35E WBFR traffic and enhance traffic safety. Vehicle Stacking 'Distance The capacity analysis for the Denton 35 Drive/IH 35 E WBFR intersection indicates that a stacking distance of one vehicle (25 feet) is needed on the southbound approach to the inter~ection. Internal Traffic Circulation The proposed land uses in Dentoz~ Park 35 Addition are served by the proposed ,40zfoot public access easement street. This street should have sufficient capacity to accommodate 'site traffic for · each individual parcel without the need to internally connect the parcels. Developments on the individual parcels will access the public access easement to gain access to the IH 35E WBFIL This . access to the public access street for each individual parcel negates the needto provide cross access between the individual parcels. ~ 1! DENTON PARK 35 ADDITION PLANNING & ZONING COMMISSION REQUEST FOR ALTERNATIVE DEVELOPMENT PLAN VARIANCE #3 LOT-TO-LOT CONNECTIVITY - INTERIOR PERTINENT CODE SECTION: Section 35.13.10.B.l.b (p.140) of the New Code states: "Prior to division of property, circulation and access standards shall be applied and, if necessary, cross easements shall be required so that access to all properties created by the subdivision can be made by shared curb cuts." Section 35.16.7.B.2 (p.160) of the New Code specifically states: ':..In addition, the public access and fire lane easement shall be considered a driveway or cUrb cut access to the public street for all such lots." DEVELOPER INTERPRETATION OF CODE: Subdivision DevelOper (DeVeloper) contends they are in full compliance with all Code r'equirements for "Interior Connectivity", as required in Section 35.13.10'.B.1 .b, that being the ability for multiple privately owned lots to share curb cut and driveway access onto the adjacent public roadway. The requirement for internal connectivity, as defined in Section 35.13.10.B.1.b, states that the requirement is ':..so that access to all properties created by the subdivision can be made by shared curb cuts." Section 35.16.7.B.2 grants the right to develop this subdivision. This section of the Code states, in addition to other things, that "the public access and fire lane easement shall be considered a driveway or curb cut access to the public street for all such lots." ThiS means that all of the lots within this subdivision are sharing a single, common curb cut and driveway onto the adjacent public roadway. Therefore, Developer is in full compliance with the requirements of the Code. for internal connectivity. STAFF INTERPRETATION OF CODE: - Staffs is stating that, according to their interpretation of Code, the Developer and/or individUal lOt developers in all commercial subdivisions are required to provide "internal connectivity" by means of providing driveways and cross access easements connecting privately owned parking, lot to privately owned parking lot, in order to reduce the amount of traffic which will traverse onto the adjacent public roadway when traveling from one private property to the next. ALTERNATIVE DEVELOPMENT PLAN: · The Traffic Impact Analysis, as-provided by the Developer and approved by Staff, states that the presence of a four (4) lane public access easement and private roadway serving all of the lots within the subdivision, with one (1) single driveway and curb cut connecting to the adjacent public street, meets the need to provide internal connectivity and negates the need for further private property to private property connectivity. Based upon this TIA report, Staff is willing to waive the requirement for private property to private property internal connectivity for all lots within the subdivision. DeShazo, Tang & Associates, Inc. Engineers · Planners 400 South Houston, Suite 330 Dallas, Texas 75202-4899 (214) 748-6740 · Fax: (214) 748-7037 May 14, 2002 Mr. T. Weldon Davis Focus Service Group 8150 N. Central Expressway, Suite 835 Dallas, TX 75206 RE: Denton Park 35 Addition -- City of Denton Stacking Regulations (DT&A No. 02JD) Dear Mr. Davis: I have reviewed the City of Denton's Development Code with respect to their stacking requirements and offer the following con,a-nents. The Code reads as follows: The'stacking requirements/or public streets shall apply to the public access and fire lane easement at tlw, proint where it intersects with the public street. Stacking is addressed in the criteria manua], Section 4, Part C, as being interior to a developed lot from the access roadway to a point within the site. The chart requiring stacking uses the term "driveway", implying "from the access roadway into the developed site". The definition of stacking distance is from the property line into the property being developed. All indications are that the term stacking is within a site, not on the access roadway. It appears from the review of the site plan for your proposed development that the public access easement serving the six tracts is a four-lane roadway. By providing two lanes each direction, the potential for stacking is minimized in that through traffic can use the second lane to avoid left-turning or right-turning vehicles to any of the tn'acts. Traffic turning right from the IH-35 fr°ntage road will bein a deceleration lane. Any traffic turning into th~ proposed site should be able to flow freely into the parking lot as this is a right-turning maneuver. I would not anticipate any stacking since the turn from IH-35 and the tum from the access road are both right turns. If stacking were to occur, it would only affect the decel- eration lane, not the IH-35 frontage road. Any through traffiC would move to the left lane. Based upon information you provided me, the City of Denton is stating that the required stacking distance shall be calculated based upon the total number of parking spaces on the total six-lot development. If this is correct, it appears that the City is defining your access road as a driveway and that all six lots are in essence one big site. If this is the case, then the stacking for the entire site would apply to the deceleration lane on IH-35E and should not be applied to the interior lots served by the private access road. Mr. T. Weldon Davis May 14, 2002 Page 2 It appears that the intent of the stacking provisions was meant to be applied to the interior of~ site. Because of the public access easement, the "intent "of the law is being overridden by the "letter" of the law. I would like to think that logic would prevail. Sincerely, DeSHAZO, TANG & ASSOCIATES, INC. Tom Simerly, P.E. Vice President TJS:Isk Traffic Impact Analysis Denton Park 35 Addition Iit 35E Westbound Frontage Road West of Teasley Lane Denton, Texas Prepared for: 1-35 Denton Land, Ltd. Prepared by: Jack ltatchell & Associates April 2002 Revised For Information Contact: Jack Hatchell 972-424-1368 Table of Contents I. Introduction ..................................... Purpose .............................................................................................. .'" Study Procedure ......................................................... 1I. Area Characteristics ........................................ ; ................. 2 Study Area .............................................................................................. 2 Area Roadway System ........................................................................... 3 Figure 1: Site Location ........................................................................... 2 Existing Traffic Volumes .......................................................................... III. Site Characteristics ..................................... : ......................... 4 Proposed Development ............................................................................. Trip Generation ...................................................................................... Table 1: Trip Generation Data .................................................................. IV. Projected Traffic Volumes .. · 4 4 5 Projected Background Traffic .................................................................... 5 Projected Site Traffic ..., ............................................................................ Projected Total Traffic ......................................... ; ................................... 5 Fig~tre 2' Background Year 2005 Total Traffic ...................................... 6 · 7 Figure 3: Directions of Approach ................................. 8 Figure 4: Projected Site-Generated Traffic ............................................ Figure 5: Projected Year 2005 total Traffic ........................................... 9 10 V. Capacity Analysis and Results " 10 Intersection Capacity ........................................................................... 10 Roadway Link Capacity .................. , .............................................. 11 Remits of Analysis ............... · .............................................................. 12 Table 2: Intersection Capacity Analysis ............................................... Table 3: Link Capacity Analysis ......................................................... 12 VI. Conclusions and Recommendations ........................................................ Appendix A: Existing Traffic Volumes Appendix B: Capacity Analysis Worksheets 13 I. Introduction 1-35 Denton Laad, Ltd. is making an application to plat a development located on the R-I"35E Westbound Frontage Road (WBFR) west of Teasley Lane in Denton, Texas. The site, called Dentoh Park 35 Addition, is proposed to have two quality restaurant pad sites, two office pad sites and a motel pad site. The City of Denton requkes that a traffic impact analysis (TIA) be submitted as part of the site plan. To comply with this requkement, 1-35 Denton Land, Ltd. has retained the services of Jack Hatchell & Associates to prepare this study. .. Purpose This report assesses the impacts of anticipated site-generated traffic on the area roadway system and identifies any measures necessary to mitigate any adverse traffic impacts caused by the proposed development. Intersection levels-of-service are the standard measures of effectiveness utilized by traffic engineering professionals to evaluate traftie impacts. This report presents background information relative to the site, study methodology, findings, conclusions, and recommendations for the proposed development's traffic characteristics as they relate to the area roadway system. Study Procedure To make a thorough analysis of the traffic impacts of'the proposed development, the following procedures were followed: · Conversations were held w4th the City of Denton engineering staffto discuss and confirm study procedures and assumptions for traffic associated with the proposed development. A field reconnaissance of the site was made to obtain information relative .to the existing roadway geometries and site characteristics. · Projected directions of approach to/from the proposed development were determined based on site accegs and locations of residential areas. · City staff identified the impacted intersections and street sections to be analyzed. · Capacity analyses were performed at the study intersections and street sections. This report was prepared to document the analysis, findings, and recommendations of the study. II. Area Characteristics Denton Park 35 Addition is bordered on the south by the IH 35E Westbound/Northbound Frontage Road and on the east and west by commercial uses. A forty-foot wide public access easement street is proposed to provide access to/from the IH 35 E Westbound Frontage Road for the proposed development sites. Study Area The site for the proposed development is located on the IH 35E Westbound Frontage Road between Teasley Lane and US 377. A study area along the IH 35E WBFR between a proposed new .street (Center Place Drive) and Meadow Street and the intersection of Dallas Drive at Ale~e Vista Drive was established by the City. Figure I illustr~ates the study area, site location and area roadway system. .M'ea Ro~.d..way System Denton Place 35 Addition will be served dkectly by the 1H 35E WBFR-via a private street, Dallas Drive will provide indirect access to the site via its new connection to Centei"Place Drive. 'IH 35E is a major north/south fi:eewaythat traverses the State of Texas and continues north. It has two two-lane one-way frontage roads. Dallas Drive is US 77. It is a five-lane roadway with a center two-way le~-tum lane. Dallas Drive connects IH 35E with Dovmtown Denton and will provide an alternative route for pe. rsons traveling to the site from the north and east areas of Denton. Center Place Drive is a new' street that connects the IH 35E WBFR with Dallas Drive via Alegre Vista Drive. It is a wide two-lane roadway: Meadow Street is a two lane undivided roadway that intersects the IH 35E.WBFR and continues north, it intersects other streets and provides a very_indirect.route to Locust Street and Dallas Drive. Existing Traffic Volumes Existing peak-hour traffic volumes for the intersection 'of IH 35E WBFR at Meadow Drive and Alegre Vista Drive at Dallas Drive and the study streets were-obtained from a traffic impact analysis (TIA) prepared by DeShazo, Tang & Associates, Inc. (DT&A). This TIA was prepared for Centre Place, a proposed mixed-use development that is located immediately east of Denton Park 35 Addition. These existing traffic volumes are presented in the Appendix to this report. 2 Not to Scale ;treet ,treet Alegre rive m 35E ~ce Drive -WBF~. Teasley ~ne FIGURE 1 SITE LOCATION Jack Hatchell & .Associates 3 ]Xl[. Site Characteristics Proposed Development Denton Park 35 Addition is proposed to contain 22,568 square feet (sf) of quality restaurant, 12,000 sf of general office, 12,000 sf of medical office and a 100-room motel. A 10,568 square- foot Chuck E. Cheese restaurant is planned on the southeast comer of the property. Trip Generation The traffic expected to be generated by a parcel of land is primarily a function of the use of that land. The volume-of traffic associated with any development depends on the proposed land uses and their densities of development. To determine the expected trip generation of the proposed development, a nationally recognized and accepted standard published by ITE entitled Trip ~Generation, 6th Edition ~vas used. This publication states trip generation rates and equations for varied land uses based upon actual surveys of those land uses. Land use and intensity, trip rates, and daily trips for both the projected land use and proposed zonin$ are shown below in Table I: Table 1: Trip Generation Data Land Use Trips A.M. Peak P.M. Peak Rate Trips Rate Trips Out In Out In Out Ia Out Daily Rate Trips Quality Restaurant 22,568 sf General Office 12,000 sf Medical Office 12,000 sf Motel 100 rooms Total 0.27 0.54 6 12 5.02 2.47 113 56 89.95 2,030 1.37 0.19 117 2 0.25 1.24 2 15 11.01 132 1.94 0.49 23 6 0.99 2.67 12 32 36.13 434 0.23 0.41 .23 41 0.31 0.27 31 27 . 9.11 911 69 61 158 130 3,507 4 IV. Projected Traffic Volumes Traffic volumes expected to exist on the roadway system are a combination of the existing traffic plus the traffic projected for the proposed development. · Projected Background Traffic The DT&A TIA determined Year 2005 traffic volumes for the intersections of Center Place Drive and Meadow Street at the IH 35E WBFR and Dallas Drive at Alegre Vista Drive. These volumes were based on a 2 percent annual growth in existing traffic and the projected site-generated traffic for the Centre Place mixed-use development. Projected backgrotmd traffic volumes fOr.the Year 2005 from the DT&A report are shown in Figure 2. Projected Site .Traffic Traffic projected to be generated by the proposed develoPment is based on ITE trip generation rates as shown in 'Table I. During the morning (a.m.) peak hour, the proposed development is projected to pro~uce 69 additional vehicles coming into fne site and 61 leax4ng the site. During the afternoon (p.m.) peak hour, 158 vehicles are projected to enter the site and 130 leave. Directions of approach to'and departure from the site 'are shown in-Figure 3. Assignment of the site-generated traffic to the private street serving the propertyis sh°w~a in Figure 4. Projected Total Traffic Projected total traffic for the study intersections is the combination of. the background traffic plus the projected site-generated traffic. These projected total traffic volumes are shown in Figure 5. It is assumed that the parcels in Denton Place 35 Addition will be developed by the Year 2005. 377 Not to Scale Meadow St. 147(85/ ~_60(68) ~__627(643) Legend xxx = A.M. Peak Hour (xxx) = P.M.. Peak Hour 846(174~~ 1495(1587) , Denton 35 Dr. 254(28~ ~ 253(292) ~ ~-- 433(426) m 35E WBFR Teasle, FIGURE 2 BACKGROUND YEAR 2005 TOTAL TRAFFIC Jack Hatchell & Associates ;treet m 35E Not Scale ;treet Alegre ~rive 5% ~LO% 90% Place Drive WBFP. EBFR 75% Teasley ~ane FIGUR~ 3 DIRECTIONS OF APPROACH Jack Hatchell & Associates __ · "Not .Scale ' 14(3~ [ / Meadow St. Denton 35 Dr. I ~ ~_55(117) 61(130) 1 18(49)~ / - '~~) ,~1 ,' US~ 377 Teasle' Ln. Legend xxx = A.M. Peak Hour (xxx) = P.M.. Peak Hour FIGURE 4 PROJECTED SITE-GENTERATED TRAFFIC Jack Hatchell & Associates Not Scale 846(174~ 1495(1587) Meadow St. Denton 35 Dr. 147(85) I¢ 66(81) { 1}682()60) 61(lm)1~ 69(158)272(325 .~ 253(292) I . (~) = P.M.. Peak HOur. FIGURE 5 PROJECTED YE-AR 2005 TOTAL TRAFFIC Jack Hatchell & Asaociates V. Capacity, Analysis and.Results Analyses were performed at the intersections of 15t 35E WBFR at Center Place Drive, Denton 35 Drive, Meadow Street and Dallas Drive at Alegre Vista Drive to determine the demand, capacity, and lextel-of-service (LOS). Level-of-service is a qualitative measure of identifying how effectively traffic operates at an intersection or along a roadway link and is defined by categories A thrOugh F. LOS "A" represents very good traffic flow and LOS "F" represents poor traffic flow and a high level of traffic congestion. Intersection Capacity Capacity is a function of the number of lanes, the type of movement and the make-up of the traffic in that movement. The methodology used in this study for determining capacity, delay, and LOS at. an intersection is outlined in the 1994 and 2000 Hip, hway Capacity Manuals (HCM). Intersection capacity analyses were performed at the study intersections using Highway Capacity Software (HCS) and Signal2000, computer pro,ams developed to emulate the procedures outlined in the HCM for tmsignalized and signalized intersections. .An additional analysis was performed to determine the stackh~.g (queuing) distance for the Chuck E. Cheese driveway onto the public access easement street and the. outside northbound lane of the public access easement at the Chuck E. Cheese Drive. Chuck E. Cheese is planned to have 135 par'king spaces and 379 seats. Chuck E. Cheese is known for their parties. According tg..~Chuck E. Cheese staff, the average party is 12 persons with an average of 8 parties at one time. The vehicle occupancy for party trips is five persons per vehicle, The stacking analysis was performed assuming there will be 75 vehicles ex/ting the Chuck E. Cheese, 100 entering the Chuck E. Cheese driveway and the p.m. peak hour volumes for through northbound and southbound traffic shown in Figure 5. The entering and exiting numbers represent approximately double the projected Chuck E. Cheese traffic during the p.m peak hour. This represents a worst case scenario for the Chuck E. Cheese traffic. Roadway Link Capacity . . According to information from the North Central Council of Governments, a two-lane undivided street can accommodate 1,000 vehicles per hour (500 per lane). A four-lane dMded roadway can accommodate 3,000 vehicles per hour (750 per lane). Each of the study roadwa.y..links was analyzed to determine the level-of-service. 10 Results of the Analysis Results of the capacity analyses found that the intersections of IH 35E WBFR at Center Place Drive, Denton 35 Drive and Meadow Street operate at LOS B under Year 2005 total traffic conditions. The intersection of Dallas Drive at Alegre Vista Drive is projected to oPerate at LOS D during the a.m. peak hour and F during the p.m. peak hour as a stop sign controlled intersection. As initially shown in the TIA prepared for the Centre Place development by DT&A, and confirmed by this study, the intersection of Dallas Drive and Alegre Vista Drive operates at LOS E during the morning peak hour and LOS F during the afternoon peak, with the inclusion of the Centre Place traffic, prior to incorporation of the Denton Park 35 Addition traffic.. The intersection was tested as a signalized intersection and found to operate at LOS A in the morning and LOS C+ during the afternoon peak hour. The TIA prepared for the Centre Place development by DeShazo, Tang & Associates, Inc. recommended traffic signals at the intersection based on Centre Place plus existing traffic. All of the road&ay links are projected to operate at LOS C or better during both peak hours with the exception of Dallas Drive. Dallas Drive is projected to operate at LOS E during the morning peak hour and LOS F during the afternoon peak hour. The existing LOS on Dallas Drive is D during the a.m. peak and F during the p.m peak. As initially shown in the Centre Place TIA and confirmed by this study, this section of Dallas Drive is projected to.operate at LOS E during the a.m. peak hour and LOS F during the p.m peak hour, when the Centre Place .traffic is added to the existing traffic. The Denton Park 35 Addition adds very little traffic to Dallas Drive. The resuks of the Chuck E. Cheese driveway analysis indicates that stacking is required for one vehicle (25 feet) for the driveway exiting the Chuck E. Cheese parking lot and one vehicle for northbound traffic that is entering the Chuck E. Cheese parking lot. This analYSiS is contained in the Appendix to this report. Results of the capacity analysis are shown in Table 2 for study intersections and Table 3 for study roadway links. Worksheets for the intersection capacity analyses are provided in the Appendix to this report. 11 Table 2: Intersection · A.M. Peak Hour IH35E WBFR at Center Place Dr. 11.9 B IH 35E WBFR at Denton 35 Dr. 10.7 B IH 35E WBFR at Meadow St. 11.6 B Dallas Dr. at Ale~re Vista Dr. 29.0 D Dallas Dr. at Alegre Vista Dr.* 0.63 8.4 A P.M. Peak ltour IH 35E WBFR at Center Place Dr. 13.2 B IH 35E WBFR at Denton 35 Dr. 11.5 B IH 35E WBFR at Meadow St. 11.3 B Dallas Dr. at Alegre Vista Dr. 193.8' F Dallas Dr. at Alegre Vista Dr. * 0.83 22.7 C+ * with traffic signals Table 3. Link Capacity Analysis · Roadwa,;Link Year 2005 Back round Traffic Year 2005 Total Traffic I Center Place Drive 507 0.51 C 525 I 0.53 'C Denton Park Drive - 130 0.. 13 A Meadow Street 207 0.2 ! B 213 0.21 B Alegre Vista Drive 379 0.38 B 397 0.40 B Dallas Drive 2526 0.84 E 2544 0.85 E Center Place Drive 577 0.58 C 617 0.62 C Denton Park Drive - 288 0.29 B Meadow Street 153 0.15 A 166 0.17 A Alegre Vista Drive 442 0.44 B 482 0.48 C Dallas Drive 3554 1.19 F 3594 1.20 F V/C = Volume-to-Capacity Ratio 12 VI. Conclusions and Recommendations The resuks of the analyses presented in this study indicate that, with the exception of Dallas Drive at Alegre Vista Drive, the study intersections operate at an acceptable level-of-service under Year projected 2005 total traffic conditions. Installation of a traffic signal at the intersection of Dallas Drive and Alegre Vista Drive will allow the intersection to operate at an acceptable· level-of-service. Dallas Drive at Alegre Vista Drive is projected to operate at LOS F during the p.m. peak hour with the addition of the Centre Place traffic, according to the TIA prepared by DT&A. Denton Park 35 Addition adds very little traffic to the intersection. With the exception of Dallas Drive at Alegre Vista Drive, all of the roadway links.are projected to operate at an acceptable level-of-service. This failed condition 'of level-of-service is'projected when the Centre Place traffic is added to the existing traffic, according to the TIA prepared for the Centre Place development. ,Although not tt~eded for traffic capacity, a westbound separate right-turn lane on the IH 35E WBFR at Denton 35 Drive. ha_s been offered by the developer of. Denton Park 35 Addition and is recommended. This separate right-turn lane will minimize the impact of turning traffic on through ll-I 35E WBFR traffic and enhance traffic safety. Vehicle Stacking Distance The capacity analysis for the Denton 35 Drive/IH 35E WBFR intersection indicates that a stacking distance of one vehicle (25 feet) is needed on the southbound approach to the intersection (see capacity analysis worksheet in Appendix). A similar analysis for the Chuck E. Cheese par ~king lot driveway indicates that a stacking distance of 25 feet is required for the northbound fight-mm into the parking lot and the westbound exit from the parking lot. Internal Traffic Circulation · The proposed land uses in Denton Park 3~ Addition are served by the proposed 40-foot public access easement street. This street should have sufficient capacity to accommodate ske traffic for each individual parcel without the need to internally connect the parcels. A single southbound right-turn lane is recommended at the public access easement's intersection with the IH 35E Developments on the individual parcels will access the public access easement to gain access to the IH 35E WBFK This access to the public access street for each individual parcel negates the need to provide cross aeees5 between the individual parcels. 13 Additional Access to IH 35E Denton Park 35 Addition has a single access to the IH 35E WBFK ..It would be desirable to have a second access, if possible. This additional access could be accomplished in two 'ways. One way would be to provide another entrance/exit to the IH 35E WBFR via a joint drive between the Centre Place and Denton Park 35 Addition developments. This north/south access would jointly serve both developments. The second means of providing additional access is by a connecting east/west drive that would cross into the Centre Place development and intersect Center Place Drive. This joint access could be planned as additional parcels are site planned for both developments. It will have to occur on a parcel north of the proposed Chuck E. Cheese and existing restaurant on the Centre Place development. 14 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING AN ALTERNATIVE DEVELOPMENT PLAN FOR CHUCK E CHEESE, BEING AN APPROXIMATE 1.8 ACRE SITE GENERALLY LOCATED ON THE NORTH SIDE OF iNTERSTATE 35E, APPROXIMATELY 210 FEET WEST OF CENTRE PLACE AND EAST OF MEADOW LEGALLY DESCRIBED AS LOT 1, OF THE DENTON PARK 35 ADDITION, PROViDiNG FOR A SAVING CLAUSE; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROViDiNG A SEVERABiLiTY CLAUSE AND AN EFFECTIVE DATE. (SP02-0003) WHEREAS, the owner of an approximate 1.8 acre tract of land zoned Downtown Commercial General (DC-G) and legally described as Lot 1, of the Demon Park Addition, and more particularly described in Exhibit "A", has made an application for approval of an Alternative Development Plan under the Development Code regulations, a copy of which is attached hereto as Exhibit "A" and made a part hereof by reference (the "Alternative Developmem Plan"); and WHEREAS, on June 12, 2002, the Planning and Zoning Commission concluded a public hearing as required by law, and recommended approval of the requested Alternative Developmem Plan; and WHEREAS, the City Council finds that the Alternative Development Plan is consistent with the Comprehensive Plan; and, WHEREAS, the City Council finds that the Alternative Developmem Plan, with the conditions imposed herein, if any, meets the requirements of the Development Code; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The Alternative Development Plan which is attached hereto and made a part hereof by reference, is hereby approved. SECTION 2. 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 3. 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 4. That this ordinance shall become effective fourteen (14) days from the date of Page 1 of 2 its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Demon 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 ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 of 2 Agenda 02-021 06/18/02 #51 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: June 18, 2002 Planning Department David Hill, 349-8314 SUBJECT- SP02-0001: (Denton Crossing) Consider adoption of an ordinance conceming the Alternative Development Plan for the Denton Crossing development. The approximately 54 acre site is generally located at the southwest comer of Loop 288 and Spencer Road. Alternative site design standards, including parking requirements and architectural elevations, are proposed. The Planning and Zoning Commission recommends approval (7-0). BACKGROUND Applicant: Kevin Caldwell, Hunt Properties Dallas, TX This application was continued from the April 24, 2002 Planning and Zoning Commission meeting to allow the applicant time to resolved patting issues associated with this project. The purpose of an alternative development plan is to provide a mechanism for those developments that do not meet the site design standards as outlined in the Development Code but nevertheless meet or exceed the objectives of the Denton Plan and Development Code. Alternative Development Plans (ADP) provide applicants an alternative process development approval. Staff can approve developments that conform to the regulations contained in the Development Code. The ADP therefore should not be reviewed on the basis of meeting the standards literally, but should be reviewed to ensure that it meets the "spirit and intent" of the regulations by different means. Staff has provided an analysis to evaluate the merits of this application. The applicant is proposing to vary from the site design standards and parking requirements established by the Development Code. The variations include parking and building orientation, pervious paving requirements, parking lot configuration, and pedestrian connectivity. As of this writing, staff has received three (3) responses in favor of the request, one (1) response neutral to the request, and one (1) response in opposition to the request from property owners within the 200 feet notification boundary. Currently, 5.2% of the land within 200 feet of the subject property is in opposition to the request. OPTIONS 1. Approve with conditions. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval (7-0). ESTIMATED PROJECT SCHEDULE The subject property is not final platted. A final plat is required prior to the issuance of any building permits. PRIOR ACTION/REVIEW The following is a chronology of SP02-0001, commonly known as Demon Crossing: Application Date - DRC Date - P&Z Date - Neighborhood Meeting March 20, 2002 March 28, 2002 April 10, 2002 April 24, 2002 May 22, 2002 None FISCAL INFORMATION Development of this property will increase the assessed value of the city. short-term public improvements that are the responsibility of the city. It will require no ATTACHMENTS 1. Staff'Analysis 2. Maps 3. Public Notification (Property Notification Map and Property Owner Responses) 4. Photographs 5. Alternative Development Plan 6. Backup Information from the Applicant 7. Planning and Zoning Commission Minutes, May 22, 2002 8. Draft Ordinance Prepared by: Deborah Viem, AICP Planner II Respectfully submitted: Douglas S. Powell, AICP Director of Planning and Development ATTACHMENT I Staff Analysis Summary of Alternative Development Plan Request The applicant is proposing to vary from the site design standards and parking requirements established by the Development Code. The variations include parking and building orientation, pervious paving requirements, parking lot configuration, and pedestrian connectivity. Staff original review of the alternative development plan found 22 items that did not meet code requirements, in working with staff, the applicant has reduced the number of outstanding issues to three (3) items. The applicant has provided documentation on how the items have been addressed. (See Development Code/Zoning Analysis section) Existing Condition of Property Property History. February 20, 2002 - The subject property was placed in the Regional Center Commercial- Downtown (RCC-D) by Ordinance 2002-040. Prior to the adoption of the Development Code, this property was zoned Light industrial (Li). Adjacent zoning. North: Employment Center-Commercial (EC-C) and Regional Center Commercial-Neighborhood (RCC-N) (across Spencer Road) South: Regional Center Commercial-Neighborhood (RCC-N) and Regional Center Commercial-Downtown (RCC-D) (across Loop 288) East: Regional Center Commercial-Neighborhood (RCC-N) (across Loop 288) West: Regional Center Residential 1 (RCR-1) and Regional Center Commercial-Neighborhood (RCC-N) Comprehensive Plan Analysis The subject site is located within a "Regional Mixed Use Center" future land use area. Regional Mixed Use Centers are intended to contain the shopping, services, recreation, employment and institutional facilities supported by and serving an entire region. A regional activity center could contain developments such as a regional shopping mall, big box retail, superstores, restaurant and entertainment facilities, a high school or community college, and high- density housing. "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.' (p. 42) "Visual quality objectives and a healthy business climate should not be considered mutually exclusive. Urban design concepts should be incorporated into private development plans early into the review process. " (p. 61) "Off-street parking requirements should reflect respect for environmental quality considerations. Parking location and associated landscaping should be carefully regulated to avoid unacceptable expanses of pavement. Large parking lots should be broken into smaller sub-lots. Parking standards should be carefully set to avoid unnecessary pavement. Shared use parking facilities should be encouraged." (p. 66) The Denton Plan clearly identifies the visual quality of commercial developments as an integral component of the site design process that could have a major impact on the urban environment. Special attention is given to parking lots in the Denton Plan. Developers should design parking areas with pedestrian pathways, minimized large paved surfaces, and the use of landscape areas. The applicant has provided alternative approaches to meet the intent of The Denton Plan. (See Development Code/Zoning Analysis section) Development Review Analysis Transportation Trip Generation. The Traffic Impact Analysis (TIA) has been approved by staff. The proposed alternative development plan reflects the required road improvements outlined on the TIA. Access. The development will have access from Loop 288, Spencer Road, and Brinker Road, which is proposed to be extended. Road Capacity The Denton Mobility Plan identifies Loop 288 as a primary major arterial. This road is designed to be a six (6) lane divided street without parking, providing six (6) lanes of through traffic. As such, its designed traffic capacity allows for a tolerable traffic flow of up to 27,900 trips per day. This section of Loop 288 is currently constructed with two (2) lanes without parking. The Denton Mobility Plan identifies Brinker and Spencer Roads as collector streets. These streets are designed to be four (4) lane undivided streets without parking, providing four (4) lanes of through traffic. As such, its designed traffic capacity allows for a tolerable traffic flow of up to 14,900 trips per day. Spencer Road is currently constructed with two (2) lanes with parking. Brinker Road is proposed to be extended and connecting with Spencer Road. Connectivity The applicant is proposing a pedestrian bridge between the subject site and the adjacent parcel to the east. A cross access easement for vehicular access has also been proposed to the east. Development Code/Zonin~ Analysis Section 35.13.5 (Alternative Development Plan) states, "An applicant may propose an Alternative Development Plan which meets or exceeds the design objectives of this Subchapter but does not meet the standards of this Subchapter. The Alternative Development [lan provides the option to address the design criteria through a flexible discretionary process reviewed by the City Council utilizing the Zoning Amendment Procedure process outlined in Subchapter 3." Section 35.13.5.A. (listed below) identifies the criteria for approval of an Alternative Development Plan. A. Criteria for Approval. The goals and objectives which must be met, and by which the proposal will be judged are: 1. Preserve Existing Neighborhoods. 2. Assure quality development that fits in with the character of Denton. 3. Focus new development to activity centers to curb strip development and urban sprawl. 4. Ensure that infrastructure is capable of accommodating development prior to the development occurring. The proposed plan varies from the standards established by the Development Code in 3 general categories: parking, permeable paving, and parking orientation. The applicant has provided documentation on how the outstanding issues have been addressed or mitigated. (see Attachment 6) Parking lots with 100 spaces or more shall be divided into separate areas and divided by landscaped areas or walkways at least 10 feet in width, or by a building or group of buildings, as per Section 35.13.1.B. This requirement is intertwined with the requirements of providing sufficient pedestrian connectivity between the out parcels and the large buildings, as per Section 35.13.10. Spirit and Intent: To break up large expanses of parking. The ten foot walkway was intended to provide a convenient and safe passage for pedestrians through the parking field and to provide a visual break to the large expanse of pavement. Applicant's Responses: 1. The applicant is proposing sidewalks along both sides of Brinker Road and across Parcel A, and two (2) walkways to breakdown the parking areas on Parcel A. 2. The parking areas have been rearranged to add multiple landscape islands throughout the development in an attempt to meet the intent and goals of the Code. The overall landscaped area exceeds Code requirements by over 175,000 SF or 30%. Additionally, there are over 500 trees proposed to be planted with over 10 acres of canopy cover. Staff Findings: 1. The applicant added a pedestrian walkway for Parcel B providing for a safer pedestrian circulation. 2. Multiple landscaped islands have been added which does provide some relief of the parking fields. 3. The applicant has increase 30% of the landscaped area for the entire site representing an increase of approximately 105,175 square feet (2.4 acres). The proposed ADP provides for a 14.8% of landscape area in comparison to the minimum 10% required by the Development Code. 4. The applicant has revised the tree species in the parking lot to increase the tree canopy coverage by approximately 18,370 sq.fi., bringing the total tree canopy coverage in the parking lot to 16.5% (15% required) This total does not include the street tree canopies that also cover the parking lots. The revised tree species will also help in breaking up the visual impact of the parking lots. 2. The proposed development will exceed the number of parking spaces required by approximately 790 spaces. Permeable paving is required for those parking spaces that exceed the number of parking spaces required, as per Sections 35.13.10 B. and 35.14.4.F. Spirit and Intent: The purpose of requiring permeable surfaces for any excess parking is to reduce the impact on the city drainage system, to improve the water quality by providing better infiltration of storm water, and to reduce the negative effect of heat islands. Using permeable surfaces will minimize paved surfaces that will only be utilized during special shopping events (called the "Christmas Syndrome"). Applicant's Response: The experience of multiple projects developed by the Applicant has shown that a minimum requirement of 5 spaces per 1000 SF of building area are needed to ensure that enough parking is available for periods of heavy shopping. This ratio ensures that parking is contained on site and does not spill onto public streets or onto adjacent properties, in lieu of permeable parking, the detention pond is designed to mitigate the initial storm run off by using a grassed detention basin with berming. (See attachment 6) Staff Finding: The applicant has modified the proposed detention pond to capture the first flush of storm water. This will mitigate, to some extent, the overall effect of the proposed excess parking. (See attachment 6) 3. Parking areas fronting Loop 288 must be relocated behind and/or to the sides of proposed buildings. Parking areas shall be located behind buildings or on one or both sides, except along the interstate 35 where a minimum fifteen foot (15') additional landscape area will be required along parking areas in front ora building, as per Section 35.13.13.4. Spirit and Intent: To provide visual relief from the standard practice of placing parking fields adjacent and to create a street wall effect, in large centers, there will obviously be a large number of parking spaces. The out parcels can be use to screen these parking fields. This also has the benefit of increasing the distance devoted to stacking at center entrances. Applicant's Response: The landscaping proposed along Loop 288 will be enhanced by use of berming, low rock features, decorative lighting, and undulating landscape to screen parked vehicles. Staff Finding: The requirement of relocating parking areas behind or to the sides of buildings has twofold purposes. The fa'st purpose is to bring buildings closer to the street and create a streetscape. The second purpose is to screen parking areas from the view. The proposed additional landscape and landscape elements will provide an enhanced streetscape, although not to the extent that a building would. ATTACHMENT 2 Maps NORTH Location/Zoning Map Scale: None NORTH Land Use Map Scale: None ATTACHMENT 3 Public Notification NORTH Notification Map Newspaper Notification Date: 200' Legal Notices* sent via Certified Mail: 500' Courtesy Notices* sent via 1 st Class Mail: Number of responses to 200' Legal Notice · In Opposition: 1 · In Favor: 3 · Neutral: 1 March 30, 2002 19 21 Percent of land within 200' in opposition: 5.2% Scale: None *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 Property Owner Responses Property Owner Name and Address In favor Comments /opposed/ neutral* Charles & Susan Bailey, Opposed I believe this project will be and 2200 Spencer Road already is a nuisance. Ronald W. Atkins, Neutral No comments. 2203 Spencer Road Doris M. Hudspeth, Favor No comments. Corner of Loop 288 & Spencer Rd.; 2508 Spencer Rd.; 2500 & 2504 Spencer Rd. Roy Dean Smith, Favor No comments. 2420 Spencer Rd. American Legion Post 71, Favor American Legion Post 71 2501 Spencer Rd. supports the Denton Crossing. *A copy of the original notice can be picked up at City Hall West, 221 N. Elm Denton TX 76201 10 ATTACHMENT 4 Photographs Photo 1: Front view of the site from Loop 288. 11 9XISSOH9 XO,T,N~C[I ~I~£1~I~ DNIdd DNISSOMO NOm~,~,~ I % % itl 'TI~1 h DI~IISSO~I3 NO&N~U ] il !1 · "1 Attachment 6 To: From: Re: Date: Planning and Zoning Commission Kevin Caldwell, Hunt Properties Denton Crossing Alternative Development Plan (SP02-0001) April 24, 2002 The Applicant is very excited to propose the Denton Crossing project and, via the Alternative Development Plan process ("ADP"), has met the intent and goals of the new Development Code. By meeting the spirit of the code, the Applicant proposes to bring a first-class retail development to Denton that will attract nationally recognized retail stores. Denton Crossing is envisioned to provide an enhanced people-oriented environment with significantly more quality landscaping than is currently found in Denton. Internal circulation, public road improvements and upgrades are intended to enhance the overall traffic circulation in the area. The Applicant has addressed, item by item, the findings of staff on the few remaining issues outstanding with respect to the ADP, the Applicant has met the spirit of the Development Code. Those items are addressed below. It is our belief the project, as submitted, will be very successful, benefit all involved, and be a source of pride for the City of Denton for years to come. We believe this project will be the standard by which future commercial development in Denton will be measured. We look forward to bringing this project to Denton and request you approve the Alternative Development Plan for the Denton Crossing project. OUTSTANDING ISSUES Parking Issues The parking layout located on Lots 1 and 10, Block A, and Lot 2, Block B must be rearranged. Parking lots with 100 spaces or more shall be divided into separate areas and divided by landscaped areas or walkways at least 10 feet in width, or by a building or group of buildings, as per Section 35.13.1.B. 5310 Harvest Hill Road · Suite136, LB161 · Dallas, TX 75230 · (972)788-1010 · FAX(972)788-4828 18. Applicant Letter To: City Of Denton Planning & Zoning Commission Re: Denton Crossing Impervious Parking Mitigation The Denton Crossing project has 811 parking spaces more than permitted under Section 35.14.4 of the Development Code. The code does permit pervious paving in parking areas that exceed the maximum spaces allowed. Since our retail tenants have not been willing to accept pervious paving, we are providing a mitigation plan that exceeds the requirements of the Development Code. We must first explain the basic difference between pervious and impervious surfaces. With exception to aesthetics, the principal differences are initial absorption, prolonged absorption (infiltration), and rate of overland runoff. These hydraulic characteristics are addressed individually as follows: Initial Absorption - The initial absorption is the ability of a surface to absorb rainfall before the rainfall begins to run off. Initial absorption for soils found on the project range between ½ and 1 inch. The initial absorption of pervious paving would likely be less than ½ inch. Prolonged Absorption (Infiltration) - The prolonged absorption or infiltration is the ability of a surface to absorb rainfall after it is saturated by the initial absorption. Prolonged absorption for soils found on the project range between 0.15 and 0.30 inches per hour. Prolonged absorption of pervious paving would likely be less the 0.15 inches per hour. Rate of Overland Runoff- The rate of runoff time it takes for rainfall to travel over a surface. For example runoff travels faster over paved surfaces when compared to earthen surfaces. The Denton Crossing Impervious Parking Mitigation Plan incorporates a detention pond and water quality pond. The water quality pond is not required by code, but has been incorporated to provide a superior alternative to pervious parking. The following is a comparison of the Mitigation plan and pervious parking with respect to hydraulic characteristics based upon comparison data provided by City staff attached herto. Initial Absorption - The initial absorption (1/2-inch) of the 811 parking spaces totals approximately 5,500 cubic feet of water. The water quality pond provides a storage volume of approximately 80,000 cubic feet which is over fourteen (14) times the absorption provided by the pervious paving. Prolonged Absorption - The water quality pond takes approximately 4 hours to empty and has a surface area of approximately 33,600 square feet. Based on a 0.3 inches per hour infiltration rate, the pond provides approximately 40,000 cubic feet of water absorption each time the pond is filled. In order for the pervious parking to provide the same infiltration benefit, the rainfall event would need to last continuously for more than 24 hours. Applicant Letter 21. Overland Runoff Rate - The runoff rate difference between pervious and impervious paving would be negligible once initial absorption has occurred. The detention pond will mitigate any minor increases. In summary, we believe that the Mitigation Plan incorporated in the Denton Crossing Alternative Development Plan provides a superior alternative to pervious paving on additional 811 parking spaces. Sincerely, Thomas M. Stroh, P.E. Jones & Carter, Inc. Consulting Engineers 22. 23. CondenseItTM Page 49 1 COMMISSIONER RISHEL: That will bring us to 2 Item No. 6 on our Agenda. And Item 6 is a 3 continuation of a public heating. And I believe Ms. Viera 4 will present. Just for the edification of the public, we 5 do have more than one staff besides Ms. Viera. I want you 6 to know that. 7 MS. VIER/k: AS yOU mentioned, Chairman, 8 this is a continuation of a previous public hearing. This 9 is the first alternative development plan that this 10 Cormnission is going to hear. This is the first one for 11 staff, as well. Thc purpose of our altemative 12 development plan is to provide the applicant an option on 13 how to address the requirements of the Development Code. 14 However, the applicant still has to fulfill the intent of 15 the Development Code and the Denton Plan. Because of 16 that, because that option is there, the applicant is no 17 longer required to abide by the standards highlighted on 18 the Code and each variation of the options has to be 19 considered and analyzed by its own merits and not by the 20 standards highlighted on the Code. 21 When we started this process, we started 22 with a list of 22 outstanding items. Right now, most of 23 them have been addressed and only three items, all related 24 to parking issues, are outstanding. And I will make a 25 brief list of those issues. You have that list in your Page 50 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 Page 51 new Development Code. I have a few consultants here that are going to help mc with thc presentation. We'll start with a short three-minute computer rendering that will show you the architectural elements of the buildings that are proposed to be built, followed by a summary of the elements of the site plan which are those aspects of the project proposed as alternative methods of addressing the standards set forth in the Code. As I said, we're excited to be here and look forward to bringing this project to Denton and request your approval of the alternative development plan for Denton Crossing. MR. NORTH: Good evening. My name is Richard North. I represent O'Brien Architects and we have a small animation to show you about our project, Denton Crossing. It's divided up into two sections. The first being a driving view as though you were driving through the complex in a car. And we've purposely deleted some of the elements of the design, the trees and some of the cars so that you can get a good sense of what the architecture will look like and the articulation of the buildings. The second part of this animation is a flyover as though you were in a helicopter looking at the entire complex from thc air. And that will show the entire environment of the building project that we hope to bring to the City of Page 52 1 backup, as well. The first item would be the break up of 2 large parking area. The second would be using permeable 3 or impervious surfaces for access parking. And the third 4 item is the location of parking areas behind or to the 5 side of buildings. Staff has provided the alternative way 6 that the applicant had proposed for addressing those 7 issues. 8 I believe the staff -- I'm sorry -- the 9 applicant is here to present to you and the staff is 10 available to answer any questions that you may have. 11 COMMISSIONER RISHEL: Thank you, Ms. Viera. 12 And the petitioner is here? Once again, I have opened the 13 public hearing and I believe Mr. Caldwell will present. 14 And he would have 15 minutes and if he would introduce his 15 other staff members, perhaps, at the front, maybe we'll be 16 able to -- and what their expertises are and maybe we'll 17 have specific questions for them. Sir, would you proceed. 18 MR. CALDWELL: Good evening. My name again 19 is Kevin Caldwell representing the applicant, Denton 20 Crossing Partners, 8235 Douglas Avenue in Dallas, Texas. 21 As Ms. Vicra mentioned, we've worked with staff over many 22 months on this project and are excited to be here and 23 present this plan before you. We started out many months 24 ago under the old Code and then worked under the interim 25 regulations and are now presenting, as you know, under the 1 Denton. So if I can figure out how to run this, I'll 2 attempt to. 3 COMMISSIONER RISHEL: Let me ask you to 4 pull the little microphone a little closer to you. 5 MR. NORTH: Yes, sir. 6 COMMISSIONER RISHEL: It will help the 7 audience hear. I think we can hear up here just fine. 8 Once again, while we're setting up for this, if I could 9 ask if anyone would like to speak eventually either for or 10 against this item on the Agenda or any other item on our 11 Agenda, if you would fill out a comment card at the 12 entryway. It would help us facilitate who wants to speak 13 at this particular hearing. I feel discriminated against. 14 I haven't seen one pickup truck in there yet. They 15 obviously don't want my kind in that shopping center. 16 COMMISSIONER POWELL: We know your kind. 17 COMMISSIONER RISHEL: I'm not quite sure if 18 I saw a Suburban in there either. I hope the little blank 19 space in there was not the helicopter having a crash 20 landing. 21 MR. NORTH: NO, sir. And I'll turn the 22 presentation over to Mr. Bussell. 23 COMMISSIONER RISHEL: Thank you. 24 MR. BUSSELL: Hi. I'm Allan Bussell. I 25 work for Surveyors and Engineers of North Texas, 1621 PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 49 - Page 52 CondcnsoltTM Page 53 1 Amanda Court, Ponder, Texas. I was hired by Hunt 2 Properties to como in and present for the ^De and go over 3 the items that we're addressing, the standards of the Code 4 a different way. And that's basically what an ^De is for 5 and this is from the Code. But, basically, there's more 6 than one way to skin a cat and that's why we're in here. 7 Large scale development in the Reed 8 district which is Regional Community Mixed Use district, 9 and it meets all these standards except that we're 10 exceeding the standard and so the Code requires permeable 11 surfaces. Parking divided into lots that exceed 100 12 spaces, when you oxceed 100 spaces, they want that parking 13 lot divided up to provide adequate pedestrian circulation. 14 And number three, the buildings adjacent to Loop 288 or, 15 in this case, in any public street, shouldn't have parking 16 in front of the building. Okay? This is the site and i17 what you have here is Spencer Road up on the north, 18 Brinker Road bisecting the property, and Loop 288 on the 19 south or on the bottom of this picture. 20 The purpose of permeable pavement -- well, 21 I'll just go one, two, three through these items. Three, 22 as I understand from City staff, the reason we want the 23 parking that exceeds the standard to be permeable, number 24 one, the reduction of runoff; number two, water quality 25 issues, you know, stuff that's coming off the site, let's 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 make sure it's clean as possible; and number three, the reduction of radiant heat from the extra pavement. The initial absorption, during a heavy rain, which Texas sees most of the time, the pavers are Page 54 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 Page 55 in this aspect we exceed division for the Code without meeting the standard of the Code. Canopy coverage, and what I'm talking about here is the radiant heat. What we've done is we've added extra canopy in the parking lot to reduce the reflection from the parking lot. And you guys have these latest numbers that were submitted and what we're doing is we're exceeding within the parking lot the canopy coverage by some 23,000 -- I have the old number here of 18,000 but now we're exceeding it by 23,000 square feet. That does not include any of the street trees that are overhanging. Larry and I had talked about this and that may -- maybe 20 percent of the street trees overhang in thom. We have 201,000 square feet of street trees. 20 percent is about 40,000 square feet. So we're exceeding the canopy coverage a lot in there which reduces the radiant heat bounce. So that's Issue No. 1. Issue No. 2, dividing these lots into smaller blocks. What I've done is I've divided this area into five different blocks, if you will. And then I've said, okay, how do we look at this, what is the purpose of dividing this up? And it's two-fold really. To provide adequate pedestrian circulation and to cut up the parking lot so it doesn't look like an expanse of concrete. For the pedestrian circulation, what I've Page 56 1 done is I've divided these into how many walkways or 2 greenbelt areas are serving this block and divide that 3 number of parking spaces into those. So on the -- this 4 one right here that has 102, I have 408 and I have four going to absorb a certain amount of water and then they're going to be done and thc rest of that warm' is going to run off. During a nice slow steady rain, a Seattle type rain, I lived up there for awhile, pavers worked much better because you have two inches of rain but you have it spread over 60 days. Here we have two inches of rain and it's spread over 24 hours. And so what you'll have is you'll have the initial absorption which won't be a whole lot. What we have hem is we have 14 times the amount of water is absorbed through oar detention pond than would be absorbed through pavers. Water quality pond, the pavers, like I said, are going to absorb that initial water. But after that, it's going to run off just as concrete would run off. What the pond does is through the engineering that the engineer for Hunt Properties has done is creatext a place for the water to clean itself out, for the first filtering or the first flush, I should say. And so the water leaving the site has a chance to be filtered before leaving. So that in actuality, this does a much better job filtering the water than pavers would ever do. And so 5 walkways serving that block. And so I've divided those 6 up. Staff mentioned to me the other day that's not really 7 how they had envisioned that. That's the way I 8 interpreted it going in. So take that as you will. I 9 believe we've met the vision for the Code and how, you 10 know -- and I think we've done an adequate job of doing 11 that. 12 To cut up the parking lot, of course, we 13 have a lot of these ends, these end caps, and we've 14 included those large canopy trees, once again, which does 15 reduce the radiant heat. And, secondarily, it cuts up the 16 parking lot even more. And as you recall from seeing the 17 animation from the helicopter view, the large trees in the 18 parking lot cuts it up a great deal. And, of course, the 19 effect from actually Loop 288 or Brinker would even be 20 more drmnatic as those trees are cutting up that view 21 shed. 22 These are the pedestrian paths as they go 23 through and this is just stepping through where they're 24 coming from this comer up, from this side down into the 25 stores, from the south here, from Loop 288 up to this PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 53 - Page 56 Condcnsclt ~ Page 57 1 comer up here, from this corner at Brinker and Loop 288 2 up to these stores, and from this corner all the way over 3 here. And these are all five-foot paths that are 4 specifically designated for pedestrians. And, of course, 5 we have this bridge connecting this area on this side over 6 to us. On the other side, as I understand, we'll have a 7 bus stop over here. We'll connect these over here with 8 pedestrian paths and these are, of course, public 9 sidewalks. But there's also internal circulation here 10 also to get anywhere you want on the site from anywhere on 11 the site by walking instead of getting in your car. So 12 you always have that option as a safe manner or as safe as 13 you can possibly have. 14 Remember, this is a regional center. It's i 15 meant to serve the entire region and, therefore, by its 16 very essence it's going to be very vehicular in nature. 17 The buildings, specifically these two 18 buildings here, we're proposing not fronting on the 19 street. And, basically the Code envisions a streetscape, 20 a hardscape for the most part. And we had the same issue 21 come up with Johnny Carenos, you know, same exact issue. 22 Some of this is aesthetics, most of it is 23 aesthetics. There's no technical reason for one or the 24 other. This is the location. What is this going to look 25 like from the road? This is the street tree scenario 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 Page 58 here. As you see, the building is fairly close to the road here. This is the interior drive which would be a fire lane, basically. The walkway in front. The street trees out here in the front and then trees next to the 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 59 infrastructure is capable of acconunodatlng this type of development; and, finally, to assure the quality development that fits into the character of Denton. And I believe we've done all of these. Any questions? COMMISSIONER RISHEL: Thank you, Mr. Bussell. I think we do have some questions. Conmfissioner Mulroy. COMMISSIONER MULROY: And it may well be that during the question period we can take care of this but I was going to ask for a consensus of the Commission to perhaps extend the time on this presentation five minutes in that the magnitude of this project might require it. COMMISSIONER RISHEL: Mr. Bussell, do you think you need to elaborate here? MR. BUSSELL: I'll answer questions. I have -- the enginccr is here for Hunt Propcxties and he can answer any technical questions. COMMISSIONER RISHEL: I get the feeling Mr. Mu[roy would like me to poll the Commission. Commission. MR. BUSSELL: I don't have anything else to present. COMMISSIONER RISHEL: okay. Does that answer your question, Mr. Mulroy? COMMISSIONER MULROY: okay. Page 60 1 COMMISSIONER RISHEL: conunissioner Holt. 2 COMMISSIONER HOLT: Yes. I had a couple of 3 questions. Could you pull back up the parking lot that's 4 divided up? building here, and this is Loop 288 out here. This is the elevation view showing the entrance drive here and Brinker here, the drug store here, the fast food place here. And this is a close-up of that same view. And here you can see the cars in the fire lane going around and so you get a good view of the understory there and you do get to see 5 MR. BUSSELL: Yes, ma'am. 6 COMMISSIONER HOLT: I'm looking on this 7 little map, this Denton Crossing map that's in our backup. 8 MR. BUSSELL: YeS~ ma'am. 9 COMMISSIONER HOLT: why is there not any 10 more landscaping between 102 and 87? some of the buildings and these trees are shown at maturity. This is what we're proposing, basically, moving this back 36 feet, putting some cars in there. You can see the close-up here, what we've added is some berms with some shrubs on top of the berms and some low rock walls which screens any cars which may be there. And if you look at the two side by side, you'll notice you actually see about the same amount of building. So the building is not less emphasis, but what you're seeing is more of a soft look from 288 than the hardscape that you would get there with the building. The criteria for approval of an ADP, preserve existing neighborhoods; focus new development activity centers which we've done; ensure that the 11 12 13 14 15 16 17 18 19 20 21 22 23 24 MR. BUSSELL: There's a five-foot walk in the ten-foot divide. If we push that to one side, I believe we can get more landscaping. The landscape architect is here. COMMISSIONER RISHEL: would you come address us, please? Maybe you can explain how we can tweak this where it would be acceptable for everyone. MR. (3UYMON: My name is Christopher Guymon. I'm with Landscape Consultants. And we can move that one sidewalk to one side. COMMISSIONER RIgtIEL: show US where you mean exactly, would you? MR. OUYMON: We don't have it blown up to see but if you move the sidewalk to one side towards the curb, you will create more of a landscaped area. Instead PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 57 - Page 60 CondcnscltTM Page 61 1 of three foot of zone for trees, you can have five foot of 2 zone of trees and then you can have bigger trees in those 3 areas. So you could do that. 4 COMMISSIONER HOLT: I would think that 5 would be a real advantageous thing for us to look at 6 because if you go to any of our large parking lots in our 7 town, all you see is cars and maybe three trees. And this 8 is going to be thc premier development that's coming to 9 Denton and we want this to be top notch. We want 10 greenery. We want the works. We don't want it like we've 11 had in Denton. We want it better than what we've had. 12 And that's really what we're looking for. 13 MR. GUYMON: AS a landscape architect, I 14 agree with you on those issues and I have never worked on 15 a project that has as many trees as this project is going 16 to have. I think we're accomplishing those goals. 17 COMMISSIONER HOLT: well, and then I still 18 have a concern with all of those parking places around the 19 edge of the development. I don't know who's going to park 20 in them. Who parks in them? Why do we have them? And 21 since we're 700 parking spaces over, why can't we take 22 those out? 23 MR. BUSSELL: My clients have their 24 clients. They need those parking spaces. We're 25 mitigating that extra pavement with the water quality pond Page 63 1 in the pond. You know, the purpose of the pond is for 2 water storage. It will essentially be a grass, it will 3 all be grassed. The actual drainage channel that runs 4 along the west side of the pond and then along the north 5 side of the pond will actually be concrete paved at the 6 request of City staff. The water quality pond or what 7 we're calling the detention pond will all be earthen with 8 it will have a pilot channel down the middle of it, but it 9 will all be grass. And then on the east side of the pond 10 over here and over here, we have a buffer and I think that 11 buffer ranges from ten to 20 feet and we've got trees all 12 along that area, all along the east and south side of the 13 pond. 14 COMMISSIONER HOLT: Okay. Well, since 15 there is a path coming from, well, whatever might develop 16 over there -- 17 MR. BUSSELL: Does this help? 18 COMMISSIONER HOLT: Right. Since there is 19 a walking path, is there -- is it a -- there's no danger. 20 It's just a -- I mean, I still don't exactly know what it 21 is. 22 MR. BUSSELL: It'S a bridge and a path, a 23 path on the other side of the bridge. There's a bridge 24 over the channel. 25 COMMISSIONER RISHEL: Mr. Reichhart would Page 62 1 and with the extra canopy. You know, I mean, if you just 2 want it just for aesthetics, I can't really help you on 3 that. But mitigation of drainage and water filtering, I 4 think we've exceeded. 5 COMMISSIONER HOLT: okay. And then we 6 haven't talked at all about the retention pond, that 7 retention pond. 8 MR. BUSSELL: Yes, ma'am. 9 COMMISSIONER HOLT: And that's right up 10 there in that -- 11 MR. BUSSELL: Right up here. 12 COMMISSIONER HOLT: Right up there. Could 13 you tell me what that's going to look like, what it's 14 going to be? Is it going to be landscaped around it? It 15 shows it on this it has some trees around it. Is it going 16 to be a nice looking thing that we might put benches and a 17 place for the employees to have lunch out them? I mean, 18 what is it? I don't know what it is. 19 MR. BUSSELL: I'll have the engineer. 20 COMMISSIONER HOLT: Thank you. 21 MR. STROH: My name is Thomas Stroh with 22 Jones and Carter Consulting Engineers. And you've kind of 23 asked a couple of questions and let me try to address 24 them. 25 The pond itself does not have landscaping Page 64 1 like to add something here. 2 MR. REICHHART: what are the side slopes? 3 What's your slopes on those? 4 MR. STROH: They actually vary. In the 5 areas of the detention pond, they're 4/1 because they're 6 grass, so they're very gradual slopes. Is the areas of 7 the pilot channel or the drainage ditch that's going to be 8 the City's responsibility for maintenance, they're 2/1 so 9 they're much steeper on the west side of the property and 10 the north side of the property. 11 COMMISSIONER HOLT: IS this fenced off from 12 the property? 13 MR. STROH: well, it is not fenced off from 14 the property but when you look at our side of the 15 property, the slopes from our side are the 4/1 slopes, the 16 gradual slopes. We will have a fence on the west side of 17 our property. There will be guard fence along the north 18 side of the property. So there is a barrier on those 19 sides and we don't have as much pedestrian access in those 20 areas. 21 COMMISSIONER HOLT: It is something that 22 somebody could just walk down into? 23 MR. STROH: If you come from the parking 24 lot or from the drive aisles and go to the detention pond, 25 yes, you could walk down into it. It's not something that PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 61 - Page 64 CondenseltTM Page 65 1 holds water all the time. It just holds water when it 2 rains. And usually, depending on the rainfall event, 3 within about a half a day after the rainfall event, the 4 detention pond should be totally dry. So it's not 5 something that holds water all the time. 6 COMMISSIONER HOLT: SO there's no hazard to 7 it, really? 8 MR. STROH: NO. Now, when we're having a 9 100-year event, there's water everywhere and it will be 10 filled with water. 11 COMMISSIONER HOLT: okay. Thank you. 12 COMMISSIONER RISHEL: somewhere my computer 13 screen disappeared. I'm waiting for staff to bring that 14 back. There we go. Commissioner Mulroy. 15 COMMISSIONER MULROY: Yes. See, that five 16 minutes was so you could get that chart in here, Alien. I 17 would like to go back and seriously revisit the parking 18 issue as addressed in the realm of a quantity. Okay? I 19 mean, I fairly well understand the explanation on the 20 quality of the runoff and how we're treating it. We do 21 have several ponds in town. If you can make this one 22 beautiful, my hat's off to you because the other ones 23 aren't very attractive. I mean, it's hard to make them 24 attractive. 25 Now, on the number of spaces I would like 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 Page 66 Page 67 1 business is day, you could share parking. It would work. 2 In a retail area, one to 300 doesn't appear to be the 3 appropriate nmnber. Exactly where planning got the one to 4 300, I don't know. I'm sure he can answer. But it was 5 designed to be a mixed use area. 6 COMMISSIONER MULROY: I would like our 7 background from how we evolved the number and then, 8 second, what would a sampling be of like regional centers 9 throughout the metroplex so we have some benchmarks and 10 some quantifiers. 11 COMMISSIONER RISHEL: I think Mr. Reichhart 12 would like to try to answer that, although he's not 13 required to. 14 MR. REICHHm~X: ^nd I think Mr. Bussell 15 answered it more than adequately. The intent again, and 16 if you go back all the way back to the Denton Plan, is to 17 have mom mixed use development where you would be able to 18 share park near the residential would be gone during the 19 day so then people could come and park in their spots 20 while they're doing the shopping, and then at night, you 21 know, the restaurants are open or entertainment. And the 22 idea behind a regional area is to have that mixed use 23 ability. 24 Additionally, I think the parking numbers, 25 the reduction came f~om a number of issues, and some of it Page 68 clear understanding for myself and for my fellow Commissioners in that the magnitude of the difference of what the Code would instruct one to design. We're not talking a ten or 15 percent differential here. We're talking 40, 50, 60, 70 percent. And we're in a position to have to understand, if this is approved, what the rationale is. And I've had some, made some queries between the meetings and I certainly invite the comments from Mr. Reichhart, but as I understand, the parking units that we have in the Code were kind of home grown and were directed towards mixed use centers that they would probably work well for, but not necessarily appropriate for regional use. And I think it's important that we understand the principles because if -- when we vote for this, if we're setting a precedent, we need to have the principles that would give us some history to take forward with us. MR. m~SSELL: Right. And Larry can speak where he got the numbers. This is parked at a one to 200, the Code is a one to 300. So you have 300 square feet for every space which is probably extremely appropriate in a neighborhood center or in a mixed use development. If we had aparunents and offices and that kind of uses in here with that mix, you would have a restaurant that most business is at night and you'd have an office, most 1 was from our consultant. Additionally, some of it was 2 based on our experience of seeing what was used currently 3 in the shopping plazas we have in town now. And it 4 appeared that they were -- the majority of them were 5 overparked. So the intent behind the number is if you're 6 going to overpark, that it would -- you know, that there's 7 effects to that and it ranges all the way from, you know, 8 the storm water quality, the heat island effect, 9 aesthetics, but it was mostly, I believe, the water 10 quality issues and the storm runoff issues. 11 COMMISSIONER MULROY: okay. So we're 12 addressed on those issues. 13 MR. REICHHART: Yes. 14 COMMISSIONER MULROY: And on the absolute 15 number, the one space per 300 maybe correct for a large 16 number of our anticipated uses. The one space for 200 17 might be the correct number for this regional type vehicle 18 access center, large shopping, retail. Which, of course, 19 you expect to be busier than all the rest. But I would 20 like -- I think I have a better understanding. And I 21 guess my last question is do you have a sampling of 22 similar type centers in the metroplex area? 23 COMMISSIONER RISHEL: Mr. Caldwell. 24 MR. CALDWELL: I don't have a specific 25 sampling of centers. I do know that in many surrounding PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 65 - Page 68 CondcnscItTM 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 69 1 municipalities, the one per 200 code is commonly used. I 2 know in developing similar type centers in many different 3 cities, one to 200 for retail uses is standard. 4 COMMISSIONER MULROY: DO yOU have a 5 specific regional center that we might be familiar with 6 that we could relate to? 7 MR. CALDWELL: One that we did in McKinney 8 at 380 and 75, the southwest comer that we call Cameron 9 Crossing is a similar center that has that -- COMMISSIONER MULROY: One per 300. MR. CALDWELL: One per 200. Page 71 1 us? And I understand why you couldn't. I'm just asking. 2 MR. CALDWELL: I cannot tonight. I'm very, 3 very close. 4 COMMISSIONER POWELL: I understand. Thank 5 you. 6 COMMISSIONER RISHEL: commissioner Roy. 7 COMMISSIONER ROY: The property just to the 8 east of Lot 84, you've shown that in the nice green. 9 MR. BUSSELL: Oh, here. Yeah. 10 COMMISSIONER ROY: My understanding is that 11 you do not anticipate that to be green; is that correct? COMMISSIONER MULROY: One per 200, excuse me. My mistake. MR. CALDWELL: Yes, sir. And so that's some direct experience that we've done and it's probably a three year old shopping center. 12 13 for that. 14 15 parcel? 16 MR. BUSSELL: You're right. I apologize Those are out parcels both here and here. COMMISSIONER ROY: What do you mean by out MR. BUSSELL: They're not included in the COMMISSIONER MULROY: Okay. And so you've had enough time to judge the usage on that? MR. CALDWELL: Yes, sir. It's a busy center and I know that we're happy and the tenants and their customers are happy that we have that ratio. COMMISSIONER MULROY: Are they using the majority of the spaces? MR. CALDWELL: They are. COMMISSIONER MULROY: 70 to 80 percent or Page 70 17 18 19 20 21 22 23 24 25 project and they're not included in any of the calculations. So the landscape, the canopy, none of that. COMMISSIONER ROY: YOU don't own that property? MR. BUSSELL: NO, no. COMMISSIONER RISHEL: clarification. MR. CALDWELL: TO clarify, this is existing, it's a Lone Star Gas transmission line that's in place now. This area down here is part of the project. Page 72 90 percent? MR. CALDWELL: At least. COMMISSIONER MULROY: Thank you. MR. CALDWELL: Thank you. COMMISSIONER RISHEL: commissioner Apple. COMMISSIONER APPLE: ^lien, also regarding the parking. In order to attract the type of anchor tenants that you want in something like this, don't they often have parking requirements that they have internally that they want met in order to locate in your project? MR. BUSSELL: AS I understand, that's how they lot these out. COMMISSIONER APPLE: And if you can't provide them with the nmnbcr of parking spaces that they need, they won't locate in your development. MR. BUSSELL: That's my understanding. COMMISSIONER APPLE: Thank you. COMMISSIONER RISHEL: cormnissioncr Powell. COMMISSIONER POWELL: A question for the developer, and I don't know which one of your folks would answer it, and I want you to know that at the beginning of this that I understand a lot of restrictions you might be under that you may not be able to answer that. Okay? Can you give us a feel of some of the people that will be moving in h~re? Have you got any names that you can give 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 However, it's left blank because as far as our alternative development plan is, we're not site planning that, I guess, now is the way to answer that. COMMISSIONER ROY: SO what will that look like? I mean, is it just open field? MR. CALDWELL: well, in the future it will just be graded to a grade and then just seeded. COMMISSIONER ROY: And the runoff is included in your calculations for that? MR. CALDWELL: Yes, yes, sir. COMMISSIONER ROY: I have one more question, relating to the environmental aspects of the basin but I really need to ask that question of City staff. Should I do that now or should I wait? COMMISSIONER RISHEL: It would be appropriate. Would you like Mr. Salmon to address that? COMMISSIONER ROY: I want someone from our Environmental Department. COMMISSIONER RISHEL: It'S probably not Mr. Salmon then. Why don't you put forth a question and then we'll see who here might be able to field that for us. COMMISSIONER ROY: I want someone from the Environmental Department to tell me that they agree with the proposal that the basin is equal to or better than the pervious pavement. PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 69 - Page 72 Condcnsclt ~ 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Page 73 1 COMMISSIONER RISHEL: I think Mr. Reichhart 2 would like to try to address that for you. 3 MR. REICHHART: I had thought Jim Colter, 4 who is the director of the Utilities Department, was going 5 to be here tonight. We've had many conversations 6 regarding the detention pond and he was available at the 7 work session that we had. But he would be able to stand 8 up here and attest to that that the detention pond is 9 superior for water quality and storm detention than the pavers would be, or impervious paving would have been. COMMISSIONER RISHEL: I hope that suffices. 1 2 3 4 5 6 7 8 9 10 11 Page 75 call the water quality pond, detention pond, and that would all be grass. COMMISSIONER KEITH: okay. So you'll be concreting the entire channel and up to the pond there, or just short of the pond, retention pond, correct? MR. STROH: That's right. COMMISSIONER KEITH: You're going to be deeding all of that to the City? MR. STROH: Everything will be in an easement, in a public easement, but the developer will have responsibility for maintenance of the pond area. We did not mean to not have a staff, qualified staff member to speak for that directly. COMMISSIONER ROY: I'll accept Mr. Reichhart' s commitment. COMMISSIONER RISHEL: Thank you. Conunissioner Keith. 12 13 14 15 16 17 COMMISSIONER KEITH: HOW about the drainage ditch? MR. STROH: The drainage ditch will be a public easement and that would be full responsibility of the City for maintenance and operation. COMMISSIONER KEITH: okay. Question for COMMISSIONER KEITH: Thank you. I have a question for, I think, Mr. Stroh. You said the City, regarding this back side on the east of the property, you indicated it looks like it's going to be grass going in there. They said they wanted to put pavement in there. MR. STROH: On the west side of the property? COMMISSIONER KEITH: Yeah, west side. Page 74 1 Excuse me. 2 MR. STROH: Yeah. The natural channel that 3 flows really from southwest of the property to the north 4 and then it tums to the east and then crosses under 5 Spencer Road right there. And the portion of that 6 channel, that's really just going to be a normal drainage 7 channel that's going to be dedicated to the City and will 8 be the City's responsibility to maintain, the City has 9 asked us to make that portion of it concrete slope paving. 10 There's some benefits there just to the conveyance of 11 water. But probably the biggest benefit to the City is 12 just the limited maintenance on that pond. 13 So that's the portion, it's got a -- it 14 varies from a ten-foot bottom to a 20-foot bottom. We've 15 kept the sides slopes pretty steep to minimize the overall 16 amount of concrete. If you lay the slopes back flatter, 17 you have more concrete. So the ditch ranges from, oh, 18 probably ten, six foot to ten foot deep. And so really 19 that pilot channel, and as you go from the west side of 20 the property to the north and around the west side and 21 north side is concrete, the bottom is concrete, and 22 there's just a small piece that comes from the channel 23 bottom up about three foot of elevation that is concrete. 24 And then everything that would be east of that pilot 25 channel and south of the pilot channel would be what we 18 19 20 21 22 23 24 25 Mr. Reichhart. Will the City be required to pay a drainage fee on its own property? MR. REICHHART: I don't know. COMMISSIONER KEITH: okay. Another little thing here. MS. PALUMBO: I can answer that. COMMISSIONER KEITH: YOU can? Is the City going to be pay a drainage fee on its own property? Page 76 1 Ms. PALUMBO: Yon pay the drainage fee 2 based on the building footprint. There is no building 3 footprint there. 4 COMMISSIONER KEITH: I'm just being 5 facetious. 6 COMMISSIONER RISHEL: Thank you vew much. 7 COMMISSIONER KEITH: I have another. 8 Regarding the parking, I can see where you got this 102. 9 That's going to be servicing quite a bit of retail space 10 there, as I look at it. I've been looking at the Code and 11 trying to understand this parking. Personally I think 12 when it comes down to how we proportion where these cars 13 and how much these lots are going to be is getting down to 14 splitting hairs. I think that it's not what an early 15 morning co~mniRee comes up with to decide how parking 16 needs to be appropriat~t but, rather, it's the businesses 17 themselves. As Commissioner Apple very eloquently pointed 18 out, they have their needs and when they come to you or 19 you go to them to lease a space out, business knows more 20 what it needs than research committees do. So I have no 21 problem with your parking allotment. And I know, for one, 22 when I'll be in there at Christmas time, I'm going to be 23 glad those extra parking spaces are going to be there 24 because I can see where that' s going to be a high traffic 25 region at the peak shopping period. PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 73 - Page 76 Cond~ aseIt m Page 77 1 And your pond, I really appreciate your 2 approach on how to handle drainage with a pond versus the 3 pervious pavement. Your demonstration of showing that the 4 pond will do more good of handling the runoff and managing 5 the water and filtering the runoff versus the pervious 6 paving. I really do appreciate the studies that you've 7 done on that. Thank you very much. 8 COMMISSIONER RISHEL: commissioner Apple· 9 COMMISSIONER APPLE: My apologies if we've 10 covered this. If we have, refresh my memory. We took the 11 little driving tour and the little helicopter tour and 12 we've seen the artist's renditions of the fronts of the 13 building. But I don't recall, do we know what the rear of 14 that building, what the view from Spencer Road is going to 15 look like? 16 COMMISSIONER RISHEL: Mr. Caldwell. 17 MR. C^LDWELL: The rear of the buildings, 18 first of all, will adhere to the Code. And the fronts, as 19 you saw, although it was difficult to see what the 20 elements are, will be some stone product and efface, which 21 is a -- I guess the best way to describe it, it looks like 22 a stucco textured look. And the rear will have the efface 23 treatment, as well, but not the stone. 24 COMMISSIONER APPLE: Any architectural 25 stuff on the rear, any landscaping? Page 78 1 MR. CALDWELL: There will certainly be 2 landscaping. One unusual feature about this project that 3 it's, with the exception of the western boundary line, 4 it's surrounded by public right-of-way so it will 5 completely be the street tree requirements are in effect 6 along every boundary with the exception of that western 7 boundary, and then we also will have landscape treatment 8 as per the Code along that western boundary, as well. 9 COMMISSIONER APPLE: BUt will that area 10 along Spencer, will that just be one long flat sea of 11 stucco looking material? 12 MR. CALDWELL: well, the buildings, by 13 their nature of having different depths, they'll have -- 14 COMMISSIONER APPLE: They'll jog in and 15 out. 16 MR. CALDWELL: They'll jog in and out and 17 then the dock areas will have screening wails, wing wall 18 type features that screens the dock and delivery areas. 19 COMMISSIONER APPLE: Okay. Thank you for 20 explaining that. 21 COMMISSIONER RISHEL: Cormnissioner Holt. 22 COMMISSIONER HOLT: Yes. Two questions. 23 One for the developer just really for the audience. What 24 is your timeline on this project? 25 MR. CALDWELL: We hope to begin 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 79 construction middle part, late part of the summer of this year and complete construction middle summer of '03. And that would include the extension of Brlnker Road from 288 up to Spencer, as well. That's part of our construction requirements. COMMISSIONER HOLT: okay. And then a question for Mr. Salmon about the widening of Loop 288 because I've had a lot of people ask me how we're ever going to get there. MR. SALMON: well, the way we understand it, the construction of Loop 288 is probably going to lag the opening of this center by some extent. Denton County and the City have partnered in terms of having the design provided. The Texas Department of Transportation has the money to build it but they didn't have the people resources to design it, so that's why the City and the County are doing that. The design is well underway. A design consultant is already working on it. But if you're familiar with TXDOT procedures and some of the review processes that have to be adhered to, you know, that really has a tendency to lengthen out the time that it takes to design and start construction. So all I can really tell you is that the design is underway and we're anticipating the start of construction of Loop 288 probably sometime in 2003. Page 80 1 Kind of on a related note, one of the 2 things that will be happening first, however, is that, of 3 course, the City recently constructed Brinker Road all the 4 way from the 1~35 service road around to Loop 288. And 5 one of the first things that will happen with the 6 construction of the Loop will be thc relocation of ramps 7 off of 1-35 so that as the construction starts on Loop 8 288, the plan is to have the ramps in place, the new ramps 9 in place off of 1-35 so that people will be able to easily 10 exit off of 1-35, get on the service read, make a right 11 turn on Brinker Road, and go that way rather than use the 12 Loop to get to the center. And then we also plan on 13 having Spencer Road widened all the way from Caldwell, 14 Woodrow Lane to Loop 288. And the construction on Spencer 15 should be wrapping up just about the same time as the 16 construction of the shopping center. 17 COMMISSIONER MOLT: okay. Thank you. 18 COMMISSIONER RISHEL: commissioner Powell. 19 COMMISSIONER POWELL: Yes. Mr. Chairman, 20 if I may ask the landscape person here to show this 21 picture. It's quite descriptive about what the back of 22 these properties look like on Spencer Road, from Spencer 23 Road. And I don't think you can see it from over there. 24 If he could bring it over your way, Ms. Apple, I think it 25 would be -- would answer all your questions. PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 77 - Page 80 CondcnsoItTM Page 81 1 MR. GUYMON: The treatment on the Spencer 2 Road will consist of curb required street trees and all 3 the docks will be screened either with wing walls. Or in 4 areas where there's no wing walls, we put shrubs. And in 5 some areas where there's enough room, we'll put some low 6 berms. 7 COMMISSIONER RISHEL: Commissioner Powell, 8 any further comments? 9 COMMISSIONER POWELL: NO, thank you. 10 That's all I had. 11 COMMISSIONER RISHEL: Thank you, 12 Commissioner. Mr. Bussell, I appreciate the efforts we've 13 made to try to get where we are. I still look at that 14 area that's marked as 102 parking spots. And it just 15 seems to me that because you have, and maybe I'm 16 justifying this in some way, shape, or form, because you 17 have parking spots that go east and west on the north part 18 and the east part, then you have parking spots that go 19 north and south on the part that starts where the 102 is, 20 that seems to me to be a natural break in the parking 21 configuration in itself. I don't want to -- I don't know 22 how you have laid this out, but the visual that that 23 creates in itself, I think would help to justify breaking 24 that 102 into a different parking district. And I don't 25 know what other elements that we need to have to make 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 Page 82 connectivity between the parking areas that go north and south and the rest of the streets, and the rest of the stores there, but that seems to me to be a natural thing. As I look at your area 102 and your area that's marked 87, it just looks to me like 87 looks bigger in the total number of parking configuration in there. Is that just an optical illusion? MR. BUSSELL: Yes. COMMISSIONER RISHEL: Parking count. MR. BUSSELL: I counted them three times. COMMISSIONER RISHEL: Believe it or not, I did not bother to count them. Okay. Do you understand what I'm saying about the area that's marked as 102 and how the parking spots go north and south as opposed to east and west? MR. BUSSELL: Yes. COMMISSIONER RISHEL: And how to me that 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 Page 83 MR. BUSSELL: Ycah. As you're driving through it, it is going to break it up, yes. COMMISSIONER RISHEL: okay. That is the -- I sec no more questions or comments regarding the Commissioners for the petitioner. Once again, this is -- thank you very much. MR. BUSSELL: Yes, sir. COMMISSIONER RISHEL: This is a public hearing and I will open the public heating. I have no cards at this point in time from anyone who wished to speak either for or against but I do see a hand. And if it meets with the approval of the Commission, I would recognize thc person who would like to speak. And I don't know whether that's for or against but we would have you come forth at this time and give us your name and address. m}~. T^YLOR: Yes. I apologize for not having a card. My name is John Taylor. I live at 3908 Zilda Way here in Denton. I guess this is kind of a neutral point or a neutral aspect that I'm thinking about. It goes along with the traffic situation. As we all know, 288 is lousy right now. What I'm thinking is why not widen 288 first and then build this guy. If this is finished before 288 is widened, it's going to add to the traffic problem that we have now. If construction on 288 begins in 2003, this guy will just be finishing up, if I'm gives me a feel, at least, architecturally that there's been a break in that configuration and it's not a continuous flow of 102 spots. MR. BUSSEI,L: Right. I didn't break it there because there's not a ten-foot landscape break there. COMMISSIONER RISHEL: I understand but the feel of it as you did your flyover -- Page 84 1 understanding correctly. People will start shopping at 2 this center prior to 288 being widened which will cause 3 more traffic than we have now. During the construction of 4 288, it will even compound the problem of traffic. 5 Personally, I'm unaware of the reasons why 6 this has to be built now. And I guess that's beside the 7 point. But it seems like we have this problem all over 8 the metroplex and probably all over the United States 9 because things are built on roads that aren't equipped to 10 handle the traffic to begin with, not including the 11 traffic that' s added when these things are built. So I 12 guess just a neutral comment, why not just wait on this 13 center and build after 288 is beautiful like 380 is from 14 288 to 377 with nothing built on that highway as we speak 15 and it's beautiful. It's ready for development now. 16 COMMISSIONER RISHEL: Mr. Taylor, I think 17 we have some co~mnents or questions from Commissioners. Commissioner Keith. COMMISSIONER KEITbI: Thank you. IV'Ir. Taylor, you made a very astute observation. One of the things that made Rome great was her roads. Guess what doesn't make Denton great is lack of roads and lack of planning. I wish to inform, wish to share with you that back in '84, approximately, the Department of Public Safety or Txr~oT wanted to widen Loop 288. They came up 18 19 20 21 22 23 24 25 PLANNING AND ZONING COlVIlVlISSION MAY 22, 2002 Page 81 - Page 84 CondenseltTM Page 85 1 here, had the money, ready to go, and we had City fathers, 2 some people at the time that killed it. That's why Loop 3 288 is still what it is today. I know this because I had 4 a store in the mall at the time and I paid very close 5 attention to it because I knew that if Loop 288 was 6 improved, my business at the mall would improve. 7 Then it was killed because of what they 8 wanted to do was to divert the road over to State School 9 Road. So the State said, okay, fine, you buy the land, 10 we'll come back and build it. We never bought the land. 11 So that's why the situation is as it is today. Thank you 12 though. 13 MR. TAYLOR: You're welcome. Again, I'll 14 say this is a neutral cmmnent. I'm not against this 15 development at all. Hey, go for it. I'm all for it. 16 But, anyway, go ahead. 17 COMMISSIONER RISHEL: Thank you, Mr. 18 Taylor. I see no other questions. Thank you very much. 19 MR. TAYLOR: Thank you. Appreciate it. 20 COMMISSIONER RISHEL: Once again, this is a 21 public heating. Anyone else who would like to speak 22 either for or against this item on our Agenda, would you 23 please come forward? Okay. Let me ask -- I see no one 24 else that would like to speak either for or against. ! 25 would ask Mr. Bussell or one of the other team members to Page 86 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Page 87 that meets with your approval. Thank you now. We'll take 1 come forth if they'd like to do some sort of rebuttal 2 statement and then we'll have our closing statement from 3 staff. 4 MR. BUSSEL[: I don't have anything further 5 to add. 6 COMMISSIONER RISHEL: Thank you very much. 7 Ms. Viera, would you care to make a closing statmnent or 8 comment? 9 MS. VIERA: The Staff has no further [ 0 remarks. 11 COMMISSIONER RISHEL: Thank you v~-y much. 12 Seeing no further co~ranents, I will close the public 13 hearing. And Mr. Mu[roy, Conunissioner Mu[roy. 14 COMMISSIONER MULROY: I'm ready to make a 15 motion for approval as presented. 16 COMMISSIONER HOLT: second. 17 COMMISSIONER RISHEL: It'S been moved by 18 Commissioner Mu[roy and seconded by Commissioner Holt. 19 Any further conunents, questions, or whatever? Seeing no 20 further co~mnents, please vote. Thank you, Commissioners. 21 Conunlssloners and audience, the motion for Item No. 6 22 carries 7-0. 23 I have been petitioned by my fellow 24 Conmfissioners that we take a short break. It would be my 25 recommendation we come back at ten minutes after 8:00, if 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 a short intermission. Page 88 PLANNING AND ZONING COMMISSION MAY 22, 2002 Page 85 - Page 88 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING AN ALTERNATIVE DEVELOPMENT PLAN FOR DENTON CROSSING DEVELOPMENT, BEING AN APPROXIMATE 54 ACRE SITE LOCATED AT THE SOUTHWEST CORNER OF LOOP 288 AND SPENCER ROAD LEGALLY DESCRIBED AS LOT 1, BLOCK A, OF THE LONE STAR PAR 3 ADDITION, TRACTS 1, 2, AND 3 OF THE J. TAFT SURVEY, TRACT 6 OF THE J. CHEEK SURVEY, AND TRACTS 39, 40, 41, 42, AND 43 OF THE M. AUSTIN SURVEY; PROVIDING FOR A SAVING CLAUSE; PROViDiNG FOR A PENALTY iN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABiLiTY CLAUSE AND AN EFFECTIVE DATE. (SP02-0001) WHEREAS, the owner of an approximate 54 acre tract of land zoned Regional Center Commercial Downtown (RCC-D) and legally described as Lot 1, Block A of the Lone Star Par 3 Addition, Tracts 1, 2, and 3 of the J. Taft Survey, Tract 6 of the J. Cheek Survey, and Tracts 39, 40, 41, 42, and 43 of the M. Austin Survey has made an application for approval of an alternative development plan under the Development Code regulations, a copy of which is attached hereto as Exhibit "A" and made a part hereof by reference (the "Alternative Development Plan"); and WHEREAS, on May 22, 2002, the Planning and Zoning Commission concluded a public hearing as required by law, and recommended approval of the Alternative Development Plan; and WHEREAS, the City Council finds that the Alternative Development Plan is consistent with the Comprehensive Plan; and, WHEREAS, the City Council finds that the Alternative Development Plan, with the conditions imposed herein, if any, meets the requirements of the Development Code; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The Alternative Development Plan which is attached hereto and made a part hereof by reference, is hereby approved. SECTION 2. 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 3. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. Page 1 of 2 SECTION 4. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Demon Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 of 2 .... ~" ,~t,~ ,iN~{3 DNIddOHS -~o DNISSOH$ NO&N2[(/ Vlt. qt. qx~t J ~ '--""=~ ~"' ~"= ~l~&l%~O DNIdd ~ DXISISO~ID t \ DNIS~O~ID NO~N:.UI [] II II II · '1