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HomeMy WebLinkAboutDecember 2, 2003 Agenda AGENDA CITY OF DENTON CITY COUNCIL December 2, 2003 After determining that a quorum is presem, the City Council of the City of Demon, Texas will convene in a Work Session on Tuesday, December 2, 2003 at 4:30 p.m. in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: Receive a report, hold a discussion and give staff direction regarding proposed amendments to the Development Code and Criteria Manual related to Tree preservation. (Tree Preservation, Si03-0012) Requests for clarification of consent agenda items listed on the consent agenda for today's City Council regular meeting of December 2, 2003. Following the completion of the Work Session, the City Council will convene in a Closed Meeting to consider specific items when these items are listed below under the Closed Meeting section of this agenda. When items for consideration are not listed under the Closed Meeting section of the agenda, the City Council will not conduct a Closed Meeting and will convene at the time listed below for its regular or special called meeting. The City Council reserves the right to adjourn into a Closed Meeting on any item on its Open Meeting agenda consistent with Chapter 551 of the Texas Governmem Code, as amended, as set forth below. 1. Closed Meeting: A. Consultation with Attorney - Under Tex. Gov't Code§551.071. 1. Discuss and consider legal issues concerning road damage caused by gas well operations and to consider a settlement agreement with the gas well operators, where to discuss these legal issues concerning the above stated matters with the attorneys in public would conflict with the duty of the City's attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas and would jeopardize the City's position in administrative proceedings or in potential litigation. 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 ITEM ON ITS OPEN MEETING AGENDA OR TO RECONVENE IN A CONTINUATION OF THE CLOSED MEETING ON THE CLOSED MEETING ITEMS NOTED ABOVE, IN ACCORDANCE WITH THE TEXAS OPEN MEETINGS ACT, INCLUDING, WITHOUT LiMiTATiON§551.071-551.086 OF THE TEXAS OPEN MEETINGS ACT. City of DeNon City Council Agenda December 2, 2003 Page 2 Regular Meeting of the City of Demon City Council on Tuesday, December 2, 2003 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: 1. PLEDGE OF ALLEGIANCE U.S. Flag Texas Flag "Honor the Texas Flag -- I pledge allegiance to thee, Texas, one and indivisible." 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards B. Recognition of staff accomplishments 3. CITIZENS REPORTS Receive citizen reports from the following: 1. Ross Melton Jr. regarding nice things about Demon. 2. Ed Soph regarding Eureka Park and South Lakes Park. 3. Robert Kam regarding Copper Creek Trail. 4. 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 Consem 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 Consem Agenda (Agenda Items A-M). This listing is provided on the Consem Agenda to allow Council Members to discuss or withdraw an item prior to approval of the Consem Agenda. If no items are pulled, Consent Agenda Items A-M 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. Consider approval of the minutes of October 14, October 21, October 27, November 4, November 11, and November 18, 2003. Consider adoption of an ordinance of the City of DeNon, Texas authorizing the expenditure of funds for paymems by the City of DeNon for electrical energy transmission fees to those cities and utilities providing energy transmission services to the City of DeNon; and providing an effective date (File 3118 - Electrical Energy Transmission Fees in the total amoum of $255,920). City of Demon City Council Agenda December 2, 2003 Page 3 Co Consider adoption of an ordinance of the City Council of the City of Demon, Texas authorizing the City Manager to execute a Professional Services Agreement with Black and Veatch Corporation, for professional consulting services relating to the Denton Municipal Utilities Water Utilities Cost of Service and Rate Design Study; authorizing the expenditure of funds therefor and providing an effective date (File 3091 - in an amoum not to exceed $55,000). Do Consider adoption of an ordinance of the City Council of the City of Demon, Texas authorizing the City Manager to execute a professional services agreement with Miner & Miner Consulting Engineers, inc. for professional engineering services relating to migrating the existing Denton Municipal Electric Geographic information System ("GiS") database from ARCFM version 7.2 to ARCFM version 8.3; authorizing the expenditure of funds therefore; and providing an effective date (File 3114 - in an amoum not to exceed $100,000). mo Consider adoption of an ordinance accepting competitive bids and awarding a public works contract for the construction of the Carroll Boulevard Urban Street Program miscellaneous street repair; providing for the expenditure of funds therefor; and providing an effective date (Bid 3048 - Urban Street Program Carroll Boulevard awarded to Silver Creek Construction, Inc. in the amount of $407,905). Fo Consider adoption of an ordinance accepting competitive bids and awarding a best value annual contract for a three-year agreement for the purchase of 15/20/25 MVA power transformers; providing for the expenditure of funds therefor; and providing an effective date (Bid 3105 - Three Year Agreemem for Purchase of Power Transformers awarded to Waukesha Electric Systems in the estimated amoum of $2,597,758). Go Consider adoption of an ordinance of the City of Demon, Texas requesting Non- Primary Entitlement Funds from the Texas Department of Transportation for a project for the purchase and installation of airport radio equipment at the Denton Municipal Airport; authorizing and directing the City Manager or his designee to execute documents on behalf of the City of Denton in order to implement the project; and providing an effective date. Ho Consider adoption of an ordinance of the City of Demon authorizing the City Manager to execute on behalf of the City of Demon an Airport Project Participation Agreement with the Texas Department of Transportation relating to the construction of improvements at the Denton Municipal Airport; and declaring an effective date. Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Real Estate Contract for the purchase of approximately 17.992 acres being part of a tract of land situated in the J. Douthitt Survey, Abstract Number 329, as described in the deed from Sally H. Mudd to Mark Amhony Mudd and Chad James Mudd recorded under clerk's file number 95-R00533339, of the real City of Demon City Council Agenda December 2, 2003 Page 4 property records of Denton County, Texas; authorizing the expenditure of funds therefor; and providing an effective date thereof. Jo Consider adoption of an ordinance approving an agreemem between the City of Denton and Mayhill Road Investors, L.P. for the partial abandonment of a Public Utility Easemem dated August 13,1991 and recorded in the real property records of Denton County under Volume 3047, Page 778 as it affects land owners real property as described in Exhibit "A" and illustrated in Exhibit "B", attached hereto and made a part hereof by reference and being located in the M.E.P. & P.R.R. Survey, Abstract Number 950, Denton County, Texas, authorizing the City Manager or his designee to execute said agreemem on behalf of the City of Denton and providing an effective date. Ko Consider denial of exaction variances for a parcel comaining approximately 12.9 acres, which is located on the South side of Jim Christal Road West of the GC & SF Railroad. The property is curremly designated as an Industrial Cemer, Employmem (lC-E) zoning district. Buildings curremly exist on the site and new construction is proposed. The owners of the property operate a trucking company. The Planning and Zoning Commission recommends denial of the variances (5-1). (V03-0028) 1. Section 35.20.2(L.3.a.) of the Code of Ordinance concerning pavemem improvements to a perimeter street. 2. Section 35.20.2(H. 1 .) of the Code of Ordinance concerning the dedication of right of way for all streets that serves a commercial lot (regarding ROW for a cul-de-sac at the end of Jim Christal Road at its intersection with the GC & SF Railroad). Lo Consider adoption of an ordinance of the City of Demon, Texas approving an Interlocal Cooperation Agreement between the City of Denton and Denton County for the regulation of subdivisions in the Extraterritorial Jurisdiction of the City of Demon; and providing an effective date. Mo Consider a request to decertify a portion of the City of Demon's Water CCN to support an application for an exempt utility status from the TCEQ for the Heifer Water System. The Public Utilities Board unanimously approved this item. 5. PUBLIC HEARINGS mo Hold a public hearing inviting citizens to comment on the proposed usage of the 2003 Local Law Enforcemem Block Gram funding. 6. ITEMS FOR INDIVIDUAL CONSIDERATION mo Consider a request for an exception to the Noise Ordinance for the purpose of "Christmas on the Square" hosted by Grace Temple Baptist Church, to be held in from of Demon Community Church at 115 N. Elm on Sunday, December 7, 2003 from 6:00 p.m. to 8:45 p.m. City of DeNon City Council Agenda December 2, 2003 Page 5 Consider approval of a resolution of the City of DeNon, Texas canceling the regular council meeting scheduled for December 16, 2003, to allow Council Members and City staff to travel to New Orleans to support the UNT Sun Belt Conference Championship Football Team, which will play in the New Orleans Bowl; and declaring an effective date. C. Consider nominations/appoimmems to the City's Boards and Commissions. New Business This item provides a section for Council Members to suggest items for future agendas or to request information from the City Manager. Items from the City Manager 1. Notification of upcoming meetings and/or conferences 2. Clarification of items on the agenda Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. 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 DeNon, Texas, on the day of ,2003 at o'clock (a.m.) (p.m.) CITY SECRETARY NOTE: THE CITY OF DENTON CITY COUNCIL CHAMBERS IS ACCESSIBLE IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT. THE CITY WILL PROVIDE SIGN LANGUAGE INTERPRETERS FOR THE HEARING IMPAIRED IF REQUESTED AT LEAST 48 HOURS IN ADVANCE OF THE SCHEDULED MEETING. PLEASE CALL THE CITY SECRETARY'S OFFICE AT 349-8309 OR USE TELECOMMUNICATIONS DEVICES FOR THE DEAF (TDD) BY CALLING 1-800- RELAY-TX SO THAT A SIGN LANGUAGE INTERPRETER CAN BE SCHEDULED THROUGH THE CITY SECRETARY'S OFFICE. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/ACM/ACM: December 2, 2003 Planning and Development Jon Fortune, Assistant City Manager SUBJECT: SI03-0012 (Tree Preservation) Receive a report, hold a discussion and give staff direction regarding proposed amendments to the Development Code and Criteria Manual related to Tree preservation. BACKGROUND: As a result of the removal of trees on the Flow Hospital site the Planning and Zoning Commission created a sub-committee to prepare a tree preservation ordinance. City staff and the sub-committee held four community meetings to obtain input on the ordinance. As a result of those meetings an ordinance has been drafted that responds to community values and requires tree preservation for all developments, provides for mitigation and incentives to preserve trees, provides for the ability to seek relief, provides for the establishment of a tree fund, and sets forth requirements for tree protection during construction and enforcement. PRIOR ACTION/REVIEW (Council, Boards, Commissions) November 5, 2003 Planning and Zoning Commission work session. November 12, 2003. Planning and Zoning Commission public hearing. comments received at public hearing and staff responses to comments. See Attachment 2 for FISCAL INFORMATION It is likely that the requirements of the proposed regulations will increase the cost of development on properties with trees. The regulations will also improve air and water quality and increase property values. RECOMMENDATION The Planning and Zoning Commission recommends approval of the draft ordinance 6-0, Roy absent. ATTACHMENTS 1. Draft Tree Preservation Ordinance 2. P&Z public hearing comments and staff'responses. Prepar%d by:.. ~e.,, h'y Rei art, ASEA, AldP ~? R~ ¢~ha~, AS Assistant Director of' Planning and Development Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development DRAFT TREE PRESERVATION ORDINANCE Purpose and Intent The purpose of these regulations is to promote the preservation of trees and existing tree canopy, to protect trees during construction, to facilitate site design and construction that contribute to the long term viability of existing trees which improves environmental conditions, specifically to comply with air and water quality regulations, increases property values and to develop a process to control the removal of trees when necessary. It is the further purpose of this ordinance to achieve the following broader objectives: A. Prohibit the clear-cutting of property. B. Maintain and enhance a positive image of the City. C. Protect quality trees and promote the ecological, environmental and aesthetic values of the City. D. Establish a Tree Fund for the preservation and replacement of trees. E. Preserve historic trees. F. Provide for a permitting and enforcement procedure. Applicability A. This subchapter shall apply to: 1. Undeveloped land. 2. All property to be redeveloped including additions or alterations, but not including interior alterations. 3. Gas Wells. 4. Right of way, streets, parks, and other public property under the jurisdiction of the City of Denton. B. The requirements of Subsection 35.17.9 (Upland Habitat Development Standards) controls over this subchapter. If the quantity of Upland Habitat Trees preserved meets or exceeds the preservation requirements specified in subsection 6 no additional preservation is required. C. Exceptions; All developments that have not submitted a preliminary plat application or a building permit application, whichever is applicable, as of the effective date of this ordinance shall be subject to the requirements for tree protection and replacement specified in subsections 6 and 7, with the exception of; 1. Agricultural uses greater than two (2) acres subject to the following restrictions; a. The agricultural use shall be maintained for at least five (5) years. b. In the event that the agricultural use is not maintained for five (5) years, the requirements of this subsection shall retroactively apply. Additionally, any quality tree removed below the minimum allowed in this subsection shall be mitigated at a ratio of 1:3 (3 inches of mitigation for every 1 inch removed). Staff is investigating legal mechanisms to apply the proposed agricultural restrictions to future property owners. DRAFT TREE PRESERVATION ORDINANCE Page 1 of 12 November 12, 2003 DRAFT TREE PRESERVATION ORDINANCE 2. Property on which dwelling unit(s) and completed. 3. Trees located in the Criteria Manual. construction of single-family or two-family residential a final inspection by the Building Official have been visibility triangle area, as defined in the Transportation 4. Public Utility Projects, including public streets, electric transmission lines, drainage improvements and water and wastewater construction: For any project, associated with a master plan, conducted by a public utility or a municipal owned utility shall be exempt from tree replacement and tree protection requirements. This does not exempt site development projects. 5. Public Utilities have the right to trim, cut, and/or remove any and all trees that: a. Interfere with or encroach upon the operations of the utilities; or b. Create a safety issue for utility crews; or c. Create a safety issue to the public. 6. City Landfill and Airport. 7. Nursery trees that are planted and growing on the premises of a Wholesale Nursery that are intended for sale in the ordinary course of business.. 8. Any tree determined to be diseased, dying or dead, by a qualified professional. 9. Public Safety Emergency Measure. Any tree determined to be causing a danger or be in hazardous condition as a result of a natural event such as tornado, storm, flood or other act of God that endangers the public health, welfare or safety and requires immediate removal. 10. Survey Work. Does not apply to the clearing of understory necessary to perform boundary surveying of real property or to conduct tree surveys or inventories As long as the clearing for surveying shall not exceed a width of two (2) feet for general survey (i.e. of easement boundary, etc.) and eight (8) feet for survey of property boundary lines and any tree having a ten (10) inch dbh or greater shall not be removed in any manner during such boundary or general surveying. 11. Capitol Improvement Projects awarded prior to the effective date of this ordinance Permit required No person, directly, or indirectly, shall cut down, destroy, remove or move, or effectively destroy through damaging any tree with a two (2) inch diameter at breast height (dbh) or greater without first obtaining a tree removal permit. 1. No grading shall take place on any undeveloped property that contains trees subject to this subchapter without obtaining a tree removal permit. 2. All trees not listed as a protected tree within this ordinance may be removed with a permit. DRAFT TREE PRESERVATION ORDINANCE Page 2 of 12 November 12, 2003 DRAFT TREE PRESERVATION ORDINANCE Permit Review and Approval Process 1. The Director may adopt rules establishing the requirements for permitting and approval process in the Application Criteria Manual. The rules shall include information required by the Director to determine if the application is complete. 2. A request for tree removal permit shall be submitted and approved prior to the removal of any protected tree in the City. 3. A complete application shall be submitted along with the application fee. The fees shall be established by City Council and published in the Application Criteria manual. 4. A Tree Inventory Plan and a Tree Replacement/Mitigation Plan must be submitted with the tree removal permit application. 5. Permits for tree removal issued in connection with a building permit or clearing and grading permit shall be valid for the same period of time. Tree removal permits issued not in connection with a building permit or clearing and grading permit are valid for 180 days. 6. After the tree permit removal permit is issued, the permit holder shall post a tree protection sign, supplied by the City, at each entrance to the property and at any other location designated by the City. 7. The City shall be authorized to work with the owners, developers, and builders to make non-substantive changes, within the scope of the ordinance, to plans, permits, and other requirements throughout the development and construction processes that will provide the greatest reasonable tree survival. Tree Designations A. Protected Trees Select healthy species, identified below, with a minimum dbh as identified shall be designated as a Protected Tree. A tree that is designated as a Protected Tree shall be preserved. Protected Tree Species Table Common Name Botanical Name DBH Large Trees Pecan Carya illinoinensis 20" Black Hickory Carya texana 20" Hackberry Celtis occidentalis, sp. 20" Texas Ash Fraxinus texensis 20" Honey Locust Gleditsia triacanthos 20" Black Walnut duglans nigra 20" Sweet Gum Liquidamber styraciflua 20" Chinese Pistachio Pistacia chinensis 20" Bois d'Arc Prosopis glandulosa 20" DRAFT TREE PRESERVATION ORDINANCE Page 3 of 12 November 12, 2003 DRAFT TREE PRESERVATION ORDINANCE Sawtooth Oak Quercus acutissima 20" Escarpment Live Oak Quercusfusiformis 20" Lacy Oak Quercus glaucoides 20" Bur Oak Quercus macrocarpa 20" Blackjack Oak Quercus marilandica 20" Chinquapin Oak Quercus muhlenbergii 20" Water Oak Quercus nigra 20" Shumard Oak Quercus shumardii 20" Post Oak Quercus stellata 20" Texas Red Oak Quercus texana 20" Live Oak Quercus virginiana 20" Black Locust Robinia pseudocacia 20" Bald Cypress Taxodium distichum 20" Cedar Elm Ulmus crassifolia 20" Lacebark Elm Ulmus parviflolia sempervirens 20" Slippery Elm Ulmus rubra 20" Medium Trees Red Cedar duniperus virginiana 8" Magnolia Magnolia grandiflora 8" Afghan Pine Pinus eldarica 8" Winged Elm Ulmus alata 8" Small Trees Redbud Cercis canadensis varieties 6" Texas Persimmon Diospyrus texana 6" Possumhaw Holly Ilex deciduas 6" Yaupon Holly Ilex vomitoria 6" Crape Myrtle Lagerstroemia indica 6" Wax Myrtle Myrica cerifera 6" Mexican Plum Prunus mexicana 6" Eve's Necklace Sophora affinis 6" B. Historic Trees A Historic Tree is a healthy tree that stands at a place where an event of historic significance occurred that had local, regional, or national importance; or at the home of a citizen who is famous on a local, regional, or national basis. A tree may also be considered historic if it has taken on a legendary stature to the community; mentioned in literature or documents of historic value; or considered unusual due to size, age or has landmark status. The Historic Landmark Commission will make DRAFT TREE PRESERVATION ORDINANCE Page 4 of 12 November 12, 2003 DRAFT TREE PRESERVATION ORDINANCE recommendations for Historic Tree designations to the Planning and Zoning Commission (which will conduct a public hearing and include property owner notification) for ultimate approval by the City Council. Upon designation, each tree shall be added to a Historic Tree Registry map to be maintained by the Planning and Development Department. A tree that is designated as a Historic Tree shall be preserved. Quality Trees A Quality Tree is any healthy tree of a species identified on in the "Protected Tree Species Table" that has a dbh that is greater than two (2) inches, but is less than the minimum dbh identified that designates it as a Protected Tree. All Quality Trees shall be preserved and/or mitigated as identified in Table 1. Quality Tree Stand A grouping or clustering of at least three (3) healthy Quality Trees with a two (2) inch dbh or greater in size, with or without understory, spaced at no greater than an average of five-foot intervals. All Quality Tree Stands shall be preserved and/or mitigated as identified in Table 1. Preservation A. Any tree designated as a Protected Tree or a Historic Tree shall be preserved. B. Table 1 establishes the minimum percentages of all dbh or percentage tree canopy of Quality Trees and/or Quality Tree Stands that must be preserved or mitigated. Table 1 Single-family & Duplex Multi-family and Non- Dwellings Residential Uses Quality Trees and 20% within the entire 25% within the entire site. Quality Tree Stands subdivision. 100% within the entire subdivision exclusive of Protected and Historic Trees Environmentally Sensitive 100% within the entire site Area (ESA) Upland Habitat areas. Up to 50% of the required Up to 50% of the required 20% of Quality Trees 25% of Quality Trees Mitigation Maximum and/or Quality Tree Stands and/or Quality Tree Stands may be mitigated rather may be mitigated rather than preserved, than preserved. DRAFT TREE PRESERVATION ORDINANCE Page 5 of 12 November 12, 2003 DRAFT TREE PRESERVATION ORDINANCE C. All percentages relating to preservation stated within this section shall be based on the initial tree survey. Any subsequent redevelopment of property must minimally preserve the applicable percentage of the total dbh of quality trees as indicated by the initial tree survey. D. Trees that are required to be preserved shall be mitigated at the ratio described in Table 2. E. Site Plans and/or Final Plats shall note the trees required to be preserved under this subchapter. The notation shall limit any future land disturbing activity or construction that would impact and/or damage the tree(s) and shall run with the land and be binding upon all successors and assigns of the current owner. Methods for the long-term conservation of said trees may include permanent conservation easements, restrictive covenants, or other such legal mechanisms. Mitigation A. Quality Trees may be removed in excess of the minimum preservation requirement contained in subsection 6 provided the excess removal is mitigated as identified in Table 2. B. Each replacement tree shall be a minimum of 2" caliper measured 6" above grade and at least 5' in height when planted. Table 2, Mitigation (^) (B) (C) Method Description Restrictions The cumulative total of all Quality Trees 2" dbh or greater removed in excess A minimum of seventy- 1. Establishment and of the minimum five (75) percent of the maintenance of new trees preservation requirement replacement trees shall be at the required ratio in contained in subsection 6 of a species identified on Column B on-site. See shall be mitigated at a the Protected Tree Species Column B ratio of 1:1.5 (every 1" Table. removed requires 1.5" towards mitigation). The cumulative total of all Quality Trees 2" dbh or greater removed in excess 2. Plant new trees at the of the minimum required ratio identified in preservation requirement See subsection 9 of this Column B on Public contained in subsection 6 Section Property. See Section9 shall be mitigated at a ratio of 1:1.5 (every 1" removed requires 1.5" towards mitigation). DRAFT TREE PRESERVATION ORDINANCE Page 6 of 12 November 12, 2003 DRAFT TREE PRESERVATION ORDINANCE 3. Payment to the tree See subsection 10 of this See subsection 10 of this mitigation fund. See Section Section Section 10 4. Any combination of See subsection 9 of this Method 1, 2 and 3. Section. Appeals An applicant may appeal the requirements of this subsection using the Zoning Amendment process outlined in Subchapter 3. The Planning and Zoning Commission may recommend and City Council may finally approve based on conditions of approval necessary to mitigate the loss of the Protected Tree(s), Historic Tree(s), Quality Tree(s) and/or Quality Tree Stand(s). The applicant shall provide supporting documentation that: A. Illustrates that there is a unique physical circumstance on the property that requires the removal of the Protected and/or Historic Tree(s). B. Illustrate that the proposed design has minimized the loss of trees to the extent possible. C. Illustrates that preservation and/or mitigation unduly burden the development of the property. Preservation Incentives A. Tree Credits 1. All individual Quality Trees 2" dbh or greater and/or Quality Tree Stands that are preserved beyond the minimum requirements identified in Table 1 shall be credited towards landscape canopy requirements at a ratio of 1:1.5. 2. All Quality Tree Stands without existing understory that are preserved beyond the minimum requirements identified in Table 1 shall be credited towards landscape canopy requirements at a ratio of 1:1.55. 3. All Quality Tree Stands with existing understory that are preserved beyond the minimum requirements identified in Table 1 shall be credited towards landscape canopy requirements at a ratio of 1:1.6. 4. Unless trees preserved are an integral part of the parking lot design, they will not be credited towards parking lot canopy requirements. B. Parking Spaces For every twelve (12) dbh of Quality Tree(s) that have been protected on site, beyond the minimum requirements identified in Table 1, one (1) parking space may be added to or subtracted from the required number of parking spaces up to a fifteen (15) percent increase or decrease. Upon the approval of the Director of Planning and Development, a waiver of up to thirty (30) percent may be granted. C. Parking Lot Design The Director of Planning and Development may allow parking lot design and parking lot landscaping requirements to vary from adopted standards to preserve existing trees. DRAFT TREE PRESERVATION ORDINANCE Page 7 of 12 November 12, 2003 DRAFT TREE PRESERVATION ORDINANCE 10. Replacement Planting Location Preservation shall be the first, best and standard approach. If preservation cannot be achieved, A. On-Site mitigation shall be next pursued. 1. Trees that are required to be planted in compliance with other development regulations shall not be counted for the purpose of satisfying the on-site mitigation requirements. B. If an applicant is able to demonstrate that neither preservation, nor on-site mitigation can be achieved due to environmental or spatial constraints, the applicant may request off-site alternatives on public property. 1. Trees that are required to be planted in compliance with other development regulations shall not be counted for the purpose of satisfying the off-site alternative requirements. 2. Off-site alternatives shall also include maintenance and irrigation for a period of not less than three (3) years. Security for the cost of maintenance shall be in the form of a cash bond, surety bond, or letter of credit. 3. Upon completion of the three-year landscape establishment period, the city shall inspect the trees and determine whether ninety percent (90%) of the trees are healthy and have a reasonable chance of surviving to maturity. Upon such a finding, the City shall release the currency, bond or letter of credit. In the absence of such a finding, the Applicant shall be notified to replace any unhealthy or dead trees. If the applicant does not take remedial steps to bring the property into compliance, the City shall make demand for payment on the cash bond, surety bond, or letter of credit. The City may use all legal remedies to enforce this subchapter in addition to making demand on the security provided herein. 4. Special consideration shall be given the applicant in the event trees are injured or destroyed by natural disasters, including but not limited to tornadoes, straight-line winds, ice storms, fire, floods, hail, or lightning strikes, or through he independent actions of third parties. C. If off-site mitigation cannot be achieved, payment shall be made to the Tree Fund. 11. Tree Fund The City shall administer the tree fund. The funds shall be used to purchase, plant and maintain trees on public property utilizing either city staff or contract labor, to acquire wooded property that remains in a naturalistic state in perpetuity, to perform and maintain a city wide tree inventory and to educate citizens and developers on the benefits and value of trees. The amount of money to be paid shall be based on the fair market value of materials and labor at the time of planting and the maintenance and irrigation for a period of three (3) years. The quantity of trees shall be calculated on the number of 2" replacement trees required to equal the total dbh of Significant Trees and/or Tree DRAFT TREE PRESERVATION ORDINANCE Page 8 of 12 November 12, 2003 DRAFT TREE PRESERVATION ORDINANCE Stands removed in excess of the minimum preservation requirements at a ratio of 1:1.5. The applicant shall submit cost estimates to the City for approval. C. Money contributed to the Tree Fund shall be paid prior to the issuance of a Clearing and Grading Permit on all Commercial, industrial, or Multi-Family Residential buildings, prior to final approval of a Gas Well Development Plat and prior to filing a Final Plat application for all Residential and Non-Residential Subdivisions. 12. Plan Submissions A. Tree Inventory Plan. A tree inventory plan shall delineate site boundaries and site trees by type, size (dbh) and/or canopy and species. An inventory map shall be prepared by a registered landscape architect, urban forester, botanist, arborist or other qualified professional and be submitted with a preliminary plat and/or building permit application. B. Tree Preservation/Replacement Plan. A tree preservation plan shall be submitted before the approval of a final plat and/or building permit and shall contain sufficient detail to show the following: 1. The location of existing and proposed improvements; 2. The limits of clearing and grading; 3. The location, size, species and health of all existing trees to remain, including tree credit calculations (canopy coverage) and methods proposed to comply with tree protection requirements during construction; 4. The location of any and all permanent conservation easements, restrictive covenants, or other such legal mechanism to allow for the long-term conservation of any and all trees required to be preserved. 5. The location, size, species and health of all existing trees proposed to be removed, including calculations (total dbh removed in excess of minimum requirements) to determine the replacement requirements; 6.Identification of all trees eligible for preservation; 7.The location and dimensions of boundary lines. C. Simplified Survey. 1. An aerial photo of the property showing the tree coverage may be used to identify groups of trees that will be preserved if mitigation is not proposed. 2. Large tree stands (greater than 1,000 square feet), which will be mitigated, may be inventoried by performing a detailed study within a specified 100 foot by 100 foot area. The study area shall be a representative sample of the entire tree stand and must be approved by the City prior to performing the survey. The survey shall include the size, species and health of all existing trees within the area. The results of the survey will be applied to the total area of the tree stand to determine the total dbh within the tree stand.. 3. if no Protected Trees, Historic Trees, Quality Trees or Quality Tree Stands exist on the property, a letter from a qualified professional stating what does exist on the property may be submitted in lieu of a survey. DRAFT TREE PRESERVATION ORDINANCE Page 9 of 12 November 12, 2003 DRAFT TREE PRESERVATION ORDINANCE D. The Tree Inventory Plan and the Tree Preservation Plan may be combined on one document. 13. Tree Protection Construction Plans shall include necessary notes and details to ensure the viability of Protected Tress, Historic Trees, Quality Trees and/or Quality Tree Stands including their roots, during construction. A. All trees identified on the tree preservation plan to be preserved shall be protected during construction. All tree protection measures shall be in place and approved prior to the commencement of any on-site construction. Protection measures such as fencing shall be maintained at all times during construction. B. Prior to development or redevelopment, the developer shall establish and maintain a construction entrance that is not within the critical root zone of any protected tree. C. Material intended for the use in construction or waste materials accumulated due to excavations or demolition shall not be placed within the limits of the critical root zone. D. Equipment shall not be cleaned or other foreign materials deposited or allowed to flow overland within the critical root zone of a protected tree. This includes without limitation, paint, oil, solvents, asphalt, concrete, mortar or similar materials. E. Signs, wires or other objects, other than those of a protective nature shall not be attached to any protected tree. However, lighting of a decorative nature may be attached to a protected tree. The lighting shall be attached in a manner as not to damage the protected tree. F. Vehicular and or construction traffic or parking shall not take place within the limits of the critical root zone of any protected tree other than on an existing paved surface. This restriction does not apply to access within the critical root zone for the purpose of clearing underbrush, which shall only be done by hand methods, vehicular traffic necessary for routine utility maintenance or emergency restoration of utility services or routine mowing operations. G. Grade changes shall be allowed within the limits of the critical root zone of any protected tree only upon approval by the city. If approved, major grade changes (i.e. four inches [4"] or greater) within the critical root zone of a protected tree will require additional measures to maintain proper oxygen and water exchange with the roots. Root pruning will be required when disturbance will result in root exposure. Root pruning shall be completed a minimum of two (2) weeks prior to any construction activity within the critical root zone of the protected tree. H. No paving with asphalt, concrete or other impervious materials shall occur within the critical root zone of a protected tree. I. In those areas where a protected tree is within 50 feet of a construction area, a protective fence, minimum of four feet (4') in height, shall be erected and maintained outside the critical root zone of each protected tree group. The protective fencing DRAFT TREE PRESERVATION ORDINANCE Page 10 of 12 November 12, 2003 DRAFT TREE PRESERVATION ORDINANCE 14. 15. shall only be required on the subject site, if the critical root zone extends onto an adjacent property. J. Boring of utilities under protected trees shall be required in those circumstances where it is not possible to trench around the critical root zone of a protected tree. When required, the length of the bore shall be the width of the critical root zone plus two feet (2') on either side of the critical root zone and shall be at a minimum depth of 48 inches. K. Any physical damage to a tree preserved for credit that is considered to place the survival of the tree in doubt shall be eliminated as a credited tree and will require additional trees to be planted in its place at the required ratio. L. Where protected tree removal is allowed through an exemption or by a tree removal permit and the root system is intertwined with the protected trees that are intended to be saved, the tree shall be removed by flush cutting with the natural level of the surrounding ground. Where stump removal is also desired, the stump grinding shall be allowed, or upon approval of the City, a trench may be cut between the two trees sufficient to cut the roots near the tree to be removed, thereby allowing removal of the remaining stump without the destruction of the root system of the saved tree. Tree Planting Restrictions 1. Overhead Lines: Any required replacement tree(s) shall not be planted within an area (both vertically and horizontally) such that the mature canopy will be within ten feet (10') of any overhead utility lines. 2. Underground Utilities: Any required replacement trees or street trees shall not be planted within 5' of underground public utility lines, including water lines, sewer lines, transmission lines, or other utilities. No trees may be planted within 10' of a fire hydrant. 3. Street Corners: No tree shall be planted in the visibility triangle area, as defined in the Transportation Criteria Manual. Definitions Clear Cutting: The removal of all of the trees or a significant majority of the trees within an area. Critical Root Zone (CRZ): The area of undisturbed natural soil around a tree defined by a concentric circle with a radius equal to the distance from the trunk to the outermost portion of the drip line but not less than one foot radius for each one inch dbh. dbh: Diameter at breast height (dbh) is the tree trunk diameter measured in inches at a height of four and one-half (4 ½) feet above existing ground level. For single-trunk trees, the width shall be measured at four and one-half feet (4 ½ ') above ground level. For multi-trunk trees, combine the diameter of largest stem or trunk with one-half of the diameter of each additional stem or trunk, all measured at four and one-half feet (4 ½ ') above ground level. DRAFT TREE PRESERVATION ORDINANCE Page 11 of 12 November 12, 2003 DRAFT TREE PRESERVATION ORDINANCE Drip Line: A vertical line run through the outermost portion of the canopy of a tree and extended to the ground. Healthy Tree: A healthy tree is a tree that is vigorously growing and is free of structural problems such as hollows or voids, free of disease, or insect problems and has a root system that is large enough to support its above ground mass. Limits of Construction: Delineation on a graphic exhibit, which shows the boundary of the area within which all construction activity will occur. Public Utilities: For the purposes of tree preservation provisions of the Denton Development Code, the term, Public Utilities includes public sanitary sewers, public water mains, public streets, public storm sewers, public detention ponds municipally- owned electric utilities, electric cooperatives, investor- owned electric utilities, telephone companies, cable television companies, and other utilities defined under Texas law as "public utilities," as well as any contractor hired by these utilities. Protective Fencing: Temporary chain link fence, wire fence, orange vinyl construction fence, snow fencing or other similar fencing with a minimum four-foot (4') height. Qualified Professional: A qualified professional is a person with a minimum of a Bachelor of Science Degree in any of the following disciplines: Forestry, Horticulture, Botany and/or Plant / Soil Science or, an Arborist that has been certified by the International Society for Arboriculture, a Texas Certified Nursery Professional, a Texas Master Certified Nursery Professional certified by the Texas Nursery and Landscape Association or a Licensed Landscape Architect. Quality Tree: A Quality Tree is any healthy tree of a species identified on in the "Protected Tree Species Table" that has a dbh that is greater than two (2) inches, but is less than the minimum dbh identified that designates it as a Protected Tree. Quality Tree Stand: A grouping or clustering of at least three (3) healthy Quality Trees with a two (2) inch dbh or greater in size, with or without understory, spaced at no greater than an average of five-foot intervals. Removal: Removal means an act that causes or may be reasonably expected to cause a tree to die including uprooting, severing the main trunk, damaging the root system and excessive pruning. Root Pruning: Shall mean to cut away, remove, cut off or cut back all or parts of the root. All root pruning shall be in accordance with approved methods set forth in the National Arborist Association Standards. Tree Protection Sign: A sign furnished by the City upon approval of a tree survey or tree permit that describes prohibited conduct detrimental to trees. Understory: A grouping of natural low-level woody, herbaceous, or ground covers species. DRAFT TREE PRESERVATION ORDINANCE Page 12 of 12 November 12, 2003 Attachment 2 Comments received at the November 12th P&Z Public Hearing Category Comment Staff Response Throughout the public Should not have a "specific" Protected process, the majority of Tree List. All trees should be participants want to protect protected, and/or preserve select native species of tree., not every tree. The proposed 20" size represents approximately the 93 percentile (or the upper 7%) of 4 recent tree inventories. · 24" = 92 percentile · 22" = 95 percentile · 18" = 89 percentile · 16" = 87 percentile Change the size (dbh) of protected Although varying the size trees requirements, based on · Decrease size (16" to 12") species, would better · Increase size represent the growth habits · Vary size per tree specie of each tree, it is also creates additional issues. Most people do not know the difference between tree Protected Tree List species and would not know if it would be protected (what size for what species). Having one size is easier for inventories and easier o implement. The ESA Upland Habitat protects large areas (10 acres or greater) of the Cross Timbers for residential Should be preserving the Cross Timbers. development only. The proposes ordinance would provide some protection to the Cross Timbers as well as other tree stands. One alternative would be to provide "Protected" status to individual trees only. Large Requiring preservation of all protected trees in a tree stand could be trees could hinder development, classified as a quality tree. It would count as a tree, but wouldn't necessarily have to be saved. Page 1 of 3 Category Comment Staff Response A detailed tree survey is only required if the amount of trees being removed is less than the percentage required The 2" requirement is to onerous to preserve (20% for single- . Costly to survey all 2" trees family and 25% for others). Consideration should be given to spacing of trees (a bunch ofT' trees Of the recent tree surveys; Quality Trees closely spaced will not mature into · 2" trees = 0% of the total large trees) trees inventoried. · Increase to 5", 6" or 8" · 4" = 9% 0% of the total trees inventoried. Add a "Marginal" tree list similar to · 6" = 33% 0% of the total Keller & Southlake". trees inventoried. · 8" = 52% 0% of the total trees inventoried. Currently, Bois d'Arc, Hackberry and Honey Locust (and others) are on the "Undesirable Tree species List". These trees cannot Do not allow "marginal" trees to be currently be used towards planted (Bois d'Arc, Hackberry, existing landscape Locust) requirements. The argument is, that if a tree species is good enough to save, it should be good enough to Replacement trees plant. A requirement for species diversity can easily be added to the ordinance. Either require a specific amount of Require species diversity species to be replanted (staff recommends at least 4) or base it on the survey. If 5 species are being remove, replace with a minimum of 5 species. The restrictions only apply to trees being credited towards Do not prohibit all development within the preservation Tree Protection the critical root zone - if done right, requirements. Simply stated the tree can survive - if you damage the roots, your not getting credit for the tree. Adding addition development The ordinance has a waiver Private Property Rights regulations is taking away a persons provision that provides ability to develop there property, a~licants the abilitv to seek Page 2 of 3 Category Comment Staff Response To paraphrase - the trees are mine, if I relief for the requirements. want to cut them down, I should be able to. As with the Alternative Development Plan (ADP) process, each case is different. What works in one circumstance may not be right for another Process is discressionary circumstance. As more and · Set max. mitigation rules more cases are bought Create administrative relief, forward, similarities for Waver requirements Process may be a loophole that allows approval may develop. If a mechanism to remove trees, patterns become apparent, Process is time consuming, may those can be incorporated hinder development, into the code. For example, if City Council approves tree removal based on required intersection geometry, then we can incorporate that circumstance into the code and allow it by right. Infill Development Ordinance does not address infill The proposed ordinance developments, treats all sites the same. Public utilities are exempt if building Who ever builds it should be Utility Improvement infrastructure identified on a Master exempt - the ordinance can Plan but a private developer is not. be modified to reflect that. Benefit of tree preservation is born by Depending on site developers (not community) conditions, tree preservation Cost City should develop resources will likely add cost to necessary to preserve trees in a public development. trust One additional incentive would be to provide a city Incentives Create more incentives tax abatement for trees preserved. The first year is the most critical with respect towards 3 year maintenance period is to long. survival. The three year Maintenance Homeowners could kill a tree and period was proposed because developer would be responsible, that is the minimum length of time that the parks Department will irrigate new trees. Page 3 of 3 CITY OF DENTON CITY COUNCIL MINUTES October 14, 2003 After determining that a quorum is presem, the City Council convened in a Planning Session on Tuesday, October 14, 2003 at 4:00 p.m. in the City Council Work Session Room. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Kamp, McNeill, Montgomery, Redmon and Thomson. ABSENT: None 1. The Council received a report and held a discussion concerning long range (50 year) planning issues for Solid Waste, Wastewater and Water. Howard Martin, Assistant City Manager of Utilities, stated that the current landfill was permitted in 1997 and represemed Demon's third landfill facility. The city's waste disposal volume was projected at approximately 118,000 tons/year or about 400 tons/day for FY 2004. Solid waste from customers that deliver waste by comract, cash and other (C,C,O) to the landfill had historically been less than 8% of the total disposal volumes. Solid waste from C,C,O customers for FY 2004 was estimated at 12,000-14,000 tons/year (approximately 10%). Solid waste from non-Demon C,C,O customers was less than 3,800 tons/year for FY 2003. Martin advised the Council that based on the current population and waste generation projections, the existing landfill site would be fully utilized by the year 2029. With cominued improvements in technology and recycling efforts, the site life could be extended to 2031. However, a new landfill site would have to be idemified, permitted and developed to satisfy the 50-year planning window. Martin advised the Council that an issue being debated was under what conditions or to what extent should the Denton landfill accept waste from outside the Denton community. Economies of scale, asset utilization, monetary benefits, and long-range disposal strategy were all factors. Projected landfill life with no outside tons and 1,240 lbs. per cubic yard would be umil October 2033; 35,000 tons annually with 1,240 lbs. per cubic yard would be umil March 2031; and 35,000 tons annually with 1,430 lbs. per cubic yard would be umil October 2033. Long range plans included expanding the public education program to encourage proper waste handling techniques, encourage source reduction of waste and increase recycling participation; implemem a volume based "Pay-as-You-Throw" (PAYT) service; and expand the recycling program into the multi-family residential, business and commercial sector. The Solid Waste Department was investigating the impact of other methods that might extend the life of the existing landfill site by incorporating different operating techniques to increase compaction efficiency, reducing the use of soil by using alternative cover materials and incorporating new landfill bioreactor technology into future plans. Martin reviewed the proposed changes to the Solid Waste Rate Ordinance. Landfill Disposal Rates: Retail Rates - Uncompacted Waste (<3cy) $33.75/ton from inside Demon, $41.00/ton from outside Demon; Uncompacted Waste (>3cy) $39.00/ton from inside Demon, $41.00/ton from outside Demon; Compacted Waste - $35.00/ton from inside Demon, $37.00/ton from outside Demon. Wholesale Rates: Compacted (>25 cy) and Uncompacted (>50 cy) - $21.00/ton from inside Demon, $23.00/ton from outside Demon. Deleted previous authorization for City City of Demon City Council Minutes October 14, 2003 Page 2 Manager to make agreements at negotiated rates. He stated that the rate ordinance would be considered at the October 21 Council meeting. P.S. Arora, Assistant Director of Wastewater, stated that the City provided wastewater collection and treatment service within the city limits of the city and most of the ETJ area. He stated that Denton provided wholesale wastewater treatment service to Corinth and Argyle. The City also provided wholesale wastewater treatment service to the City of Krum. The wastewater service area included four major drainage basins. The basins were: Pecan Creek, Cooper Creek, Hickory Creek, Clear Creek/Milam Creek, and Robson Ranch in Hickory Creek Basin. Issues dealing with the location of future plant sites, major collection system infrastructure and the need for improved levels of treatment associated with new regulatory requirements were discussed. A key component of both wastewater and water planning initiatives was the future development of a beneficial reclaimed water system. Jim Coulter, Director of Water Utilities, stated the Beneficial Reuse Program provided production and sales of composted biosolids at the Pecan Creek Water Reclamation Plant. He stated the operation used wastewater treatment plant biosolids and wood waste diverted from the landfill to produce various composted materials. He stated that the Beneficial Reuse Division would focus on developing a reclamation system that was capable of servicing large scale industrial and irrigation needs of the community. The composting operation would develop a plan to handle the increased biosolid and brush wastestream from the community as well as adding other wastestreams to reduce loading to the City's landfill. Tim Fisher, Assistam Director of Water Utilities, stated water supply planning covered three basic areas: water resources or raw water supply, water treatment, and water distribution. Water supply alternatives included: continue wholesale customer relationship with Dallas Water Utilities; partner with one or more entities to sponsor a new water supply project; direct reuse program; indirect reuse permit; and increased water conservation effort. Fisher stated additional future challenges included aging infrastructure and impacts on rates, increasing use of technology, higher expectations and involvemem from the public, increased regulations: water quality and treatment, daily operations, risk management and homeland security. The Council discussed outcome statements associated with Utilities and Solid Waste Future Acquisition. Solid Waste: No solid waste containers visible from the street. Landfill uses modern technology. Dedicated reserve fund be established to expand capacity from net income from outside waste disposal sources. Wastewater: Extensive beneficial reuse. City of Demon City Council Minutes October 14, 2003 Page 3 With no further business, the meeting was adjourned at 7:25 p.m. JANE RICHARDSON ASST. CITY SECRETARY CITY OF DENTON, TEXAS EULINE BROCK MAYOR CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES October 21, 2003 After determining that a quorum was presem, the City Council convened in a Work Session on Tuesday, October 21, 2003 at 4:30 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Kamp, McNeill, Montgomery, Redmon and Thomson. ABSENT: None 1. The Council received a report and held a discussion regarding the CLIDE Awards Program. John Promise and Kenneth Calhoun from the North Central Texas Council of Governments presented information regarding the CLIDE Awards program and an overview of the issues that started the program on developmem excellence. The serious issues facing the region included transportation, air quality, water supply and the environment. A Center of Development Excellence was formed to provide a forum for local governments and the private sector to evaluate and form partnerships on regional growth issues. The Celebrating Leadership in Development Excellence Awards Program was established to celebrate development excellence best practices that advanced the ten principles of development excellence. Award winners in new developmem and redevelopmem categories were show cased. 2. The Council received a report, held a discussion, and gave staff direction regarding exempting qualified charitable organizations from ad valorem taxation as defined and authorized by State law and declaring an effective date. Diana Ortiz, Director of Fiscal Operations, stated that staff was seeking direction from Council regarding a request from the Masonic Lodge to be exempted from ad valorem taxation. This was a local option exemption. If approved, it applied to all organizations that were certified by the state. Council discussion on the proposal included the following poims: there was no problem with the two entities that had requested the exemption but there was concern about future organizations that might fall under the exemption; there was concern about how the legislature might change the rules in the future; a concern was expressed that this was an irreversible decision that ceded the exemption to the State; timing for the decision; and the fact that the completion of 501-C3 status would resolve the issues for the organizations. Consensus of the Council was to not place the proposal on a future agenda for consideration. 3. The Council received a report, held a discussion and gave staff direction concerning the appeal of William Kim Fugitt, AIA (The Timbers at DeNon, LLC.) brought pursuam to §26-226 of City of DeNon Ordinance No. 2003-137, involving the imposition of impact fees. Jim Coulter, Director of Water Utilities, stated that the appeal did not meet the qualifications for an exemption for the impact fee. The Public Utilities Board had considered the request and did not recommend the exemption. Staff also was not recommending the exemption, as it did not meet the requirements for an exemption. City of DeNon City Council Minutes October 21, 2003 Page 2 Council discussion involved the following poims: there was an obligation on the part of the city of get information out to developers on such changes; what were the difference of costs; and whether sufficiem notice was given out to developers already in the process of developmem when changes occurred. Consensus of the Council was to not grant the exemption and to have staff provide suggestions on ways to inform developers of changes in procedures and fees. 4. Staff responded to requests for clarification of consent agenda items listed on the consent agenda for the regular meeting of October 21, 2003. Following the completion of the Work Session, the City Council convened in a Closed Meeting to consider the specific items listed below. 1. The following item was considered in Closed Meeting: A. Consultation with Attorney - Under Tex. Gov't Code §551.071 Considered and discussed status of litigation styled Gold v. City of Denton, et al., Cause No. 2003-60102-393, currently pending in the 393rd District Court, Denton County, Texas. Regular Meeting of the City of DeNon City Council on Tuesday, October 21, 2003 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. 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards Mayor Brock presemed the following awards/proclamations: 2. 3. 4. 5. Governmem Financial Officers Association Budget Award. Recognition of Fire Fighter Jeff Knowles Recognition of Jon Fortune for ICMA Service Award Demon Television Appreciation Week Relationship Violence Awareness Momh B. October Yard-of-the-Momh Awards City of DeNon City Council Minutes October 21, 2003 Page 3 Mayor Brock presented the Yard-of-the Month Awards to: 2. 3. 4. 5. 6. 7. 8. Rodney and Marlena Lane Larry and Cami Kish Joe and Kathy Earhart Marcus and Cila Lewis Irene Shaw Gayle and Alex Lieban Nita Valade and Bernard Lapeyre -water smart yard US Social Security Administration C. Recognition of staff accomplishments City Manager Conduffpresemed staff accomplishmems to the Council. 3. CITIZENS REPORTS A. The Council received citizen reports from the following: Bob Clifton regarding the City of DeNon electric company and other general nuisances. Mr. Clifton questioned how much the utility employees were paid but could not get the information from the City. He questioned how the budget money was spem. He would begin a recall campaign against each of the council members. One by one each would be removed from office. Salaries were too high, taxes were too high, and the roads were a mess plus other problems in the city that he would bring back later. Nell Yeldell regarding utilities, the concrete company, faulty property deeds, area ditches and associated trees, and harassmem by the City. Ms. Yeldell stated that there was an error in the deeds of her property and the area ditches. Regarding utilities, she continued to have a problem with her utilities but the staff had been working with her and she appreciated that. She still had a problem with the concrete company near her home, especially with the hours of operation and the pollution of the area. 3. John Skelton regarding the McKamy/Evers subdivision. Mr. Skelton was not present at the meeting. Teresa Heffer regarding a water well on Highway 380 and the city's lack of response to her request. Ms. Heffer stated she was the owner of a water well on Highway 380. The City did not supply water to the area. She needed to file an exemption with the Texas Water Commission but was having a problem getting a response from the City. She was not receiving a response from the City in order to process her request. City of DeNon City Council Minutes October 21, 2003 Page 4 4. CONSENT AGENDA Burroughs motioned, Thomson seconded to approve the Consent Agenda and accompanying ordinances. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. mo 2003-331 - An ordinance of the City of DeNon authorizing an agreemem between the City of Denton, Texas and the Denton County Friends of the Family for counseling and case management to victims of domestic violence for low to moderate income families; providing for the expenditure of funds therefor; and providing for an effective date. Bo 2003-332 - An ordinance of the City of DeNon authorizing an agreemem between the City of DeNon, Texas and SPAN inc. for providing nutritional meals for elderly or disabled low to moderate income persons; providing for the expenditure of funds therefor; and providing for an effective date. Co 2003-333 - An ordinance of the City of DeNon authorizing an agreemem between the City of Denton, Texas and the Family Health Care, Inc. for prenatal health care for low to moderate income persons; providing for the expenditure of funds therefor; and providing for an effective date. Do 2003-334 An ordinance awarding a comract for the purchase of annual maimenance for the City of DeNon Cisco (Smartnet) networked devices including switches, hubs, routers, and Cisco iP phone equipment for all equipment located in city facilities as awarded by the State of Texas Building and Procuremem Commission through the Catalog information Service Vendor (CiSV) Catalog Program; providing for the expenditure of funds therefor; and providing an effective date (File 3093 - Annual Maimenance for Cisco Networked Devices awarded to Forsythe Solutions Group in the amoum of $65,347.17). mo 2003-335 - An ordinance awarding a contract for the purchase of maimenance and services for the LaserFiche Document Imaging System currently being used by the City of Denton as awarded by the State of Texas Building and Procurement Commission through the Catalog information Service Vendor (CiSV) Catalog Program; providing for the expenditure of funds therefor; and providing an effective date (File 3095 - Maimenance and Services for LaserFiche Documem imaging System awarded to VP imaging, inc. in the amoum of $40,265.35). Fo 2003-336 An ordinance awarding a comract for the purchase of annual maintenance for the Nortel phone system including 24 hr/7 day support on all equipment located in City of Denton facilities as awarded by the State of Texas Building and Procuremem Commission through the Catalog information Service Vendor (CiSV) Catalog Program; providing for the expenditure of funds therefor; and providing an effective date (File 3097 - Annual Maimenance for Nortel Phone system awarded to Verizon Southwest in the amoum of $42,400.08). Go 2003-337 - An ordinance awarding a comract for the purchase of an annual comract to provide cominued wireless connectivity service to the Public Safety City of DeNon City Council Minutes October 21, 2003 Page 5 Mobile Computers as awarded by the State of Texas Building and Procurement Commission through the Catalog Information Service Vendor (CISV) Catalog Program; providing for the expenditure of funds therefor; and providing an effective date (File 3098 - Annual Contract for Continued Wireless Connectivity awarded to AT &T Wireless in an amount not to exceed $105,000). Ho 2003-338 An ordinance awarding a comract for the purchase of annual maintenance for the Novell Network Infrastructure Licenses to include Novell Node, ZenWorks Node, BorderManager, Novell Secure Login, Novell Portal Services, Novell iChain, Novell GroupWise Mailbox, and DirXML as awarded by the State of Texas Building and Procurement Commission through the Catalog Information Service Vendor (CISV) Catalog Program; providing for the expenditure of funds therefor; and providing an effective date (File 3099 - Annual Maintenance for Novell Network Infrastructure Licenses awarded to SHI- Governmem Solutions in the amoum of $76,061.29). 2003-339 - An ordinance authorizing the City Manager to execute a professional services agreement with ETTL Engineering and Consulting, Inc. for hydrogeological consulting and analytical services pertaining to the City of DeNon Landfill (MSW Permit No 1590A); authorizing the expenditure of funds therefor; providing for retroactive ratification and approval thereof; and providing an effective date (RFP 3092 - in an amoum not to exceed $40,897.52). Jo 2003-340 - An ordinance approving the expenditure of funds for the purchase of an annual maintenance agreement for continued vendor support of the Harris Public Utility Billing System 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 (File 3094 - Annual Maintenance of Harris Public Utility Billing System to Harris Computer Systems in the amoum of $55,461.24). Ko 2003-341 - An ordinance approving the expenditure of funds for the purchase of annual Passport Advantage Software maintenance for continued vendor support of the Informix Dynamic Server Relational Database Software 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 (File 3096 - Annual Maimenance of Passport Advamage Software to Imemational Business Machines Incorporated (IBM) in the amoum of $60,900). Lo 2003-342 - An ordinance approving the expenditure of funds for the purchase of annual maimenance for cominued vendor support of the JD Edwards OneWorld Software Package 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 (File 3100 - Annual Maimenance for JD Edwards OneWorld Software Package to JD Edwards in the amoum of $82,800). City of DeNon City Council Minutes October 21, 2003 Page 6 Mo 2003-343 - An ordinance amending Chapter 18 of the Code of Ordinances to extend the school zone for Tomas Rivera Elememary School by adding a portion of Woodrow Lane to the streets included in the zone; removing the bus loading zone for the former Sullivan Keller Elememary; providing a penalty of a fine not to exceed two hundred dollars; providing a severability clause; providing for publication; and declaring an effective date. No 2003-344 - An ordinance allowing the City Manager to execute a Non-drill Site/Pooling Agreement with Lynx Oil Company, Inc. for 96 acres of the Airport Open Space in the City of DeNon, Texas; and providing an effective date. 5. PUBLIC HEARINGS A. The Council held a public hearing and considered adoption of an ordinance for a Comprehensive Plan Amendment from Regional Mixed Use Center to Existing Neighborhood/Infill Compatibility on 11.68 acres of land. The subject property was generally located north of Wind River Lane and south of 1-35 in the Wind River Estates Phase IV subdivision. Single Family residemial uses curremly existed on this property. Planning and Zoning Commission recommended approval (7-0). (CA03-0002, Northeast WindRiver Estates) Kelly Carpemer, Director of Planning and Development, stated that the area in question was mapped in error and needed to be corrected. The change would be from a regional mixed-use center-zoning category to existing neighborhood infill category that would represent the existing homes already built on the site. The next public hearing was a companion ordinance to rezone the property following the change in the Comprehensive Plan. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. The following ordinance was considered: NO. 2003- 345 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 11.68 ACRES AND IS GENERALLY LOCATED NORTH OF WIND RIVER LANE, SOUTH OF 1-35E AND AT THE NORTHEAST CORNER OF PHASE IV OF WIND RIVER ESTATES SUBDIVISION; PROVIDING A SAVINGS AND REPEAL CLAUSE; AND PROVIDING AN EFFECTIVE DATE. (CA-03-0002) McNeill motioned, Burroughs seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. City of DeNon City Council Minutes October 21, 2003 Page 7 B. The Council held a public hearing and considered adoption of an ordinance for the rezoning of 11.68 acres of land from Regional Cemer Residemial 1 (RCR-1) to Neighborhood Residemial 3 (NR-3). The subject property was generally located north of Wind River Lane and south of 1-35 in the Wind River Estates Phase IV subdivision. Single Family residemial uses curremly exist on this property. Planning and Zoning Commission recommended approval (7-0). (Z03-0021, Northeast Wind River Estates) The Mayor opened the public hearing No one spoke during the public hearing. The Mayor closed the public hearing. The following ordinance was considered: NO. 2003-346 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZON1NG CHANGE FROM REGIONAL CENTER RESIDENTIAL - 1 (RCR-1) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION TO NEIGHBORHOOD RESIDENTIAL - 3 (NR-3) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR APPROXIMATELY 11.68 ACRES OF LAND LOCATED NORTH OF WIND RIVER LANE, SOUTH OF 1-35E AND AT THE NORTHEAST CORNER OF PHASE IV OF THE WIND RIVER ESTATES SUBDIVISION; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z03-0021) McNeill motioned, Kamp seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. 6. ITEMS FOR INDIVIDUAL CONSIDERATION A. The Council considered adoption of an ordinance of the City Council of the City of Denton, Texas, approving guidelines for operation of the City of Denton Home Improvement and Optional Reconstruction 2003 Program and eligibility criteria; authorizing expenditures in excess of $25,000 for projects meeting program guidelines and criteria; and providing for an effective date. Barbara Ross, Community Development Administrator, stated that the ordinance would allow the loan program to continue for the next year with new guidelines. Funding was approved in May. The program provided loans and deferred loans to low/moderate income families. It also provided for rehabilitation of a unit and if a unit were significamly deteriorated, it would demolish and rebuild the structure. Plan changes included a reduction in residency requiremems to 3 years and the housing sizes were revised. The following ordinance was considered: City of Demon City Council Minutes October 21, 2003 Page 8 NO. 2003-347 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, APPROVING GUIDELINES FOR OPERATION OF THE CITY OF DENTON HOME IMPROFEMENT AND OPTIONAL RECONSTRUCTION 2003 PROGRAM AND ELIGIBILITY CRITERIA; AUTHORiZiNG EXPENDITURES IN EXCESS OF $25,000 FOR PROJECTS MEETING PROGRAM GUiDELiNES AND CRITERIA; AND PROVIDING FOR AN EFFECTIVE DATE. Burroughs motioned, Thomson seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. B. The Council considered adoption of an ordinance accepting competitive bids and awarding an annual contract for the purchase of hot mix lay asphalt concrete; providing for the expenditure of funds therefor; and providing an effective date (Bid 3073A - Annual Price Agreement for Hot Mix Lay Asphalt Concrete awarded to Jagoe-Public Company in the estimated amoum of $500,000). Jim Coulter, Director of Water/Wastewater, stated this bid would provide the patch and overlay materials for the first third of the year. The following ordinance was considered: NO. 2003-348 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE PURCHASE OF HOT MIX LAY ASPHALT CONCRETE; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (BID 3073A - ANNUAL PRICE AGREEMENT FOR HOT MIX LAY ASPHALT CONCRETE AWARDED TO JAGOE-PUBLiC COMPANY IN THE ESTIMATED AMOUNT OF $500,000). McNeill motioned, Kamp seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. C. The Council considered adoption of an ordinance accepting competitive proposals and awarding a contract for the purchase of Health Insurance; providing for the expenditure of funds therefore; and providing for an effective date (RFP 3056 - Employee Health insurance awarded to United HealthCare in the estimated amoum of $7,820,400.) Scott Payne, Risk Manager, presented the details of the proposal and the results of the requests for proposal. The following ordinance was considered: City of Demon City Council Minutes October 21, 2003 Page 9 NO. 2003-349 AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE PURCHASE OF HEALTH INSURANCE; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING FOR AN EFFECTIVE DATE (RFP 3056 - EMPLOYEE HEALTH INSURANCE AWARDED TO UNITED HEALTHCARE iN THE ESTIMATED AMOUNT OF $7,820,400.) Burroughs motioned, Thomson seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. D. Consideration of Referendum Petition: Secretary. The Council received Certification of a Referendum Petition from the City City Secretary Jennifer Walters stated that the elements of the petition required by the City Charter had been reviewed, found to be sufficiem and certified the petition in compliance with the provisions of the City Charter. 2. The Council considered a motion to reconsider Ordinance No. 2003-265 (the Solid Waste Rate Ordinance) that is the subject of the Referendum Petition certified by the City Secretary to vote on the question as required by the City Charter "Shall the ordinance specified in the referendum petition be repealed?" A Speaker Card was submitted by Joe ialemi, 1511 Greenwood Drive, Demon, 76209 who spoke on the item. Burroughs motioned, Kamp seconded to reconsider Ordinance 2003-265 and vote on the question as required by the City Charter. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. The Council considered adoption of an ordinance repealing Ordinance No. 2003- 265 (the Solid Waste Rate Ordinance); reinstating the Solid Waste Rate Ordinances that were in effect immediately before the passage of the "Solid Waste Rate Ordinance"; providing a savings clause; and providing an effective date. The following ordinance was considered: NO. 2003-350 AN ORDINANCE REPEALING ORDINANCE NO. 2003-265 (THE SOLID WASTE RATE ORDINANCE); REINSTATING THE SOLID WASTE RATE ORDINANCES THAT WERE IN EFFECT IMMEDIATELY BEFORE THE City of Demon City Council Minutes October 21, 2003 Page 10 PASSAGE OF THE "SOLID WASTE RATE ORDINANCE"; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. McNeill motioned, Kamp seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. 4. The Council considered adoption of an ordinance of the City of Demon, Texas amending the schedule of rates for solid waste service comained in Ordinance Numbers 2002-270 as authorized by Chapter 24 of the Code of Ordinances of the City of Demon, Texas; providing that the provisions of Sections 26-3, 26-4, 26-5, 26-7, 26-8(a), and 26-9 of the Code of Ordinances of the City of Demon, Texas shall expressly apply to City of Denton solid waste service; amending the manual residential rate charge; amending the comainerized collection service charge; amending the charges for minimum billing/base rate service upon condition and application; amending the charge for manufactured appliances that comain pcb's or cfc's with no certified removal documemation of pcb's or cfc's (Schedule SWR); amending the residemial curbside recycling and processing service charge (Schedule SWRR); amending the momhly rates for commercial & institutional solid waste collection services; increasing service charges for commercial from-load and side-load comainers; amending the charges for comainer extra service; adding an additional cart rate for two carts; adding a nominal charge to provide semi-automated commercial cart service where fully automated collection service cannot be provided; amending the charges for temporary front load container service; amending the charge for roll-off open top service; amending the hourly rate for combined truck and manpower usage; providing for increased charges for disposal weight of refuse equal to or greater than 700 pounds per cubic yard - overweight loads; providing for increased charges for disposal weights of refuse equal to or greater than 1,000 pounds per cubic yard, plus an additional overweight penalty of $300.00 per container load; amending the roll-off compactor container service charges; amending the six cubic yard compactor charges; adding multi-family bulky item collection service and charges; amending the shared commercial comainer charges; adding a charge to provide shared comainer service; amending the comainer delivery fee; amending the relocation charge for each roll-off comainer; amending the notification time (11:00 a.m.) for on- demand customer service; amending the inaccessible container charge for containers that presem accessibility problems and/or additional services and/or time; adding a difficult comainer access fee charge for roll-off containers and for all other containers; amending the on-site waiting time charged to customers whose containers are inaccessible; amending the installation or removal of locks on container charges; amending the quamity of commercial bulky items collected on first Thursday collection; amending the service fee for demand response bulky item collection service; amending the requiremems for free delivery of bulky items to the landfill; amending the charges for service regarding overflowing and excess waste collections plus an applicable charge for waste outside of the comainer which is collected, comainerized, and serviced by solid waste personnel (Schedule SWC); adding the commercial recycling services schedule with application, qualification, monthly rate, minimum billing, acceptable recycling materials, non-acceptable materials, right of load refusal, and other charges (Schedule SWCR); adding the solid waste collection and transportation services permit schedule, with application, granting of permit, exclusions, fees, term and renewal, and revocation City of Demon City Council Minutes October 21, 2003 Page 11 or non-renewal of permits (Schedule SWP); amending the municipal solid waste disposal rates; providing for retail disposal rates; adding wholesale disposal rates; adding a landfill charge based upon the gross volume capacity of the vehicle, comainer or trailer if the scales are inoperative or accurate weights cannot be determined; amending the minimum landfill charge; amending the landscape yard waste charge; amending the landfill bulky items charge; amending the inert materials charge; amending the unsecured loads charge (Schedule SWF); providing for additional reasons for the director of solid waste of the City of Denton to deny the use of the landfill to certain customers committing certain acts or violations; providing for a repealer; providing for a severability clause; and providing an effective date. The following individuals submitted Speaker Cards: Michael Phillips, 6605 Alderbrook, Demon, 76210 - opposed to the proposed ordinance Alice Gore, 2215 Westwood, Demon, 76205 - opposed to the proposed ordinance Don White, Sr., 2105 Savannah Trail, Demon, 76205 - opposed to proposed ordinance Jane Fulton, 729 Greenwood, Demon, 76209 - opposed to proposed ordinance Discussion by Council on the proposed ordinance included: The proposal was part of the 50 year plan for solid waste The proposal would help in the future for construction of a new landfill The proposal would only establish rates-not take in outside solid waste There were no current contracts with outside entities and none foreseen for the future There were policy questions that the Council had to answer and were not for the PUB to answer. There was never a contract presented to Council for outside waste Instructions to staff were to look at alternatives in order to plan ahead for future years Recycling was not the sole solution to saving the landfill; it helped but was not the sole solution Not all options had been explored; not all information had been given to Council, the PUB and citizens Consider remanding the proposed ordinance back to the PUB for a recommendation before the Council voted on the proposal. Information was supplied to Council during the budget workshop - not all of the Council attended those meetings. Consideration of outside waste from other entities was in the ordinance for the last two years The following ordinance was considered: NO. 2003-351 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING THE SCHEDULE OF RATES FOR SOLID WASTE SERVICE CONTAINED IN ORDINANCE NUMBERS 2002-270 AS AUTHORIZED BY CHAPTER 24 OF THE CODE OF ORDINANCES OF THE CITY OF DENTON, TEXAS; PROVIDING THAT THE PROVISIONS OF SECTIONS 26-3, 26-4, 26-5, 26-7, City of Demon City Council Minutes October 21, 2003 Page 12 26-8(A), AND 26-9 OF THE CODE OF ORDINANCES OF THE CITY OF DENTON, TEXAS SHALL EXPRESSLY APPLY TO CITY OF DENTON SOLID WASTE SERVICE; AMENDING THE MANUAL RESIDENTIAL RATE CHARGE; AMENDING THE CONTAINERIZED COLLECTION SERVICE CHARGE; AMENDING THE CHARGES FOR MiNiMUM BILLING/BASE RATE SERVICE UPON CONDITION AND APPLICATION; AMENDING THE CHARGE FOR MANUFACTURED APPLIANCES THAT CONTAIN PCB'S OR CFC'S WITH NO CERTIFIED REMOVAL DOCUMENTATION OF PCB'S OR CFC'S (SCHEDULE SWR); AMENDING THE RESIDENTIAL CURBSiDE RECYCLING AND PROCESSING SERVICE CHARGE (SCHEDULE SWRR); AMENDING THE MONTHLY RATES FOR COMMERCIAL & INSTITUTIONAL SOLID WASTE COLLECTION SERVICES; iNCREASiNG SERVICE CHARGES FOR COMMERCIAL FRONT-LOAD AND SIDE-LOAD CONTAINERS; AMENDING THE CHARGES FOR CONTAINER EXTRA SERVICE; ADDING AN ADDITIONAL CART RATE FOR TWO CARTS; ADDING A NOMINAL CHARGE TO PROVIDE SEMI-AUTOMATED COMMERCIAL CART SERVICE WHERE FULLY AUTOMATED COLLECTION SERVICE CANNOT BE PROVIDED; AMENDING THE CHARGES FOR TEMPORARY FRONT LOAD CONTAINER SERVICE; AMENDING THE CHARGE FOR ROLL-OFF OPEN TOP SERVICE; AMENDING THE HOURLY RATE FOR COMBINED TRUCK AND MANPOWER USAGE; PROVIDING FOR INCREASED CHARGES FOR DISPOSAL WEIGHT OF REFUSE EQUAL TO OR GREATER THAN 700 POUNDS PER CUBIC YARD - OVERWEIGHT LOADS; PROViDiNG FOR INCREASED CHARGES FOR DISPOSAL WEIGHTS OF REFUSE EQUAL TO OR GREATER THAN 1,000 POUNDS PER CUBIC YARD, PLUS AN ADDITIONAL OVERWEIGHT PENALTY OF $300.00 PER CONTAINER LOAD; AMENDING THE ROLL-OFF COMPACTOR CONTAINER SERVICE CHARGES; AMENDING THE SIX CUBIC YARD COMPACTOR CHARGES; ADDING MULTi-FAMiLY BULKY iTEM COLLECTION SERVICE AND CHARGES; AMENDING THE SHARED COMMERCIAL CONTAINER CHARGES; ADDING A CHARGE TO PROVIDE SHARED CONTAINER SERVICE; AMENDING THE CONTAINER DELIVERY FEE; AMENDING THE RELOCATION CHARGE FOR EACH ROLL-OFF CONTAINER; AMENDING THE NOTiFiCATiON TiME (11:00 A.M.) FOR ON-DEMAND CUSTOMER SERVICE; AMENDING THE INACCESSIBLE CONTAINER CHARGE FOR CONTAINERS THAT PRESENT ACCESSIBILITY PROBLEMS AND/OR ADDITIONAL SERVICES AND/OR TIME; ADDING A DIFFICULT CONTAINER ACCESS FEE CHARGE FOR ROLL-OFF CONTAINERS AND FOR ALL OTHER CONTAINERS; AMENDING THE ON-SITE WAITING TIME CHARGED TO CUSTOMERS WHOSE CONTAINERS ARE INACCESSIBLE; AMENDING THE INSTALLATION OR REMOVAL OF LOCKS ON CONTAINER CHARGES; AMENDING THE QUANTITY OF COMMERCIAL BULKY ITEMS COLLECTED ON FIRST THURSDAY COLLECTION; AMENDING THE SERVICE FEE FOR DEMAND RESPONSE BULKY ITEM COLLECTION SERVICE; AMENDING THE REQUIREMENTS FOR FREE DELIVERY OF BULKY ITEMS TO THE LANDFILL; AMENDING THE City of Demon City Council Minutes October 21, 2003 Page 13 CHARGES FOR SERVICE REGARDING OVERFLOWING AND EXCESS WASTE COLLECTIONS PLUS AN APPLICABLE CHARGE FOR WASTE OUTSIDE OF THE CONTAINER WHICH IS COLLECTED, CONTAINERIZED, AND SERVICED BY SOLID WASTE PERSONNEL (SCHEDULE SWC); ADDING THE COMMERCIAL RECYCLING SERVICES SCHEDULE WITH APPLICATION, QUALIFICATION, MONTHLY RATE, MINIMUM BILLING, ACCEPTABLE RECYCLING MATERIALS, NON- ACCEPTABLE MATERIALS, RIGHT OF LOAD REFUSAL, AND OTHER CHARGES (SCHEDULE SWCR); ADDING THE SOLID WASTE COLLECTION AND TRANSPORTATION SERVICES PERMIT SCHEDULE, WITH APPLICATION, GRANTING OF PERMIT, EXCLUSIONS, FEES, TERM AND RENEWAL, AND REVOCATION OR NON-RENEWAL OF PERMITS (SCHEDULE SWP); AMENDING THE MUNiCiPAL SOLID WASTE DISPOSAL RATES; PROVIDING FOR RETAIL DISPOSAL RATES; ADDING WHOLESALE DISPOSAL RATES; ADDING A LANDFILL CHARGE BASED UPON THE GROSS VOLUME CAPACITY OF THE VEHICLE, CONTAINER OR TRAILER IF THE SCALES ARE INOPERATIVE OR ACCURATE WEIGHTS CANNOT BE DETERMINED; AMENDING THE MINIMUM LANDFILL CHARGE; AMENDING THE LANDSCAPE YARD WASTE CHARGE; AMENDING THE LANDFILL BULKY ITEMS CHARGE; AMENDING THE INERT MATERIALS CHARGE; AMENDING THE UNSECURED LOADS CHARGE (SCHEDULE SWF); PROVIDING FOR ADDITIONAL REASONS FOR THE DIRECTOR OF SOLID WASTE OF THE CITY OF DENTON TO DENY THE USE OF THE LANDFILL TO CERTAIN CUSTOMERS COMMITTING CERTAIN ACTS OR VIOLATIONS; PROVIDING FOR A REPEALER; PROVIDING FOR A SEVERABiLiTY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. McNeill motioned, Burroughs seconded to adopt the ordinance as presented with the exception of Pages 16-18 to be withheld and brought back to council for additional discussion. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "nay", Thomson "aye" and Mayor Brock "aye". Motion carried with a 6-1 vote. E. New Business The following items of New Business were suggested by Council Members for future agendas: o Mayor Pro Tem Burroughs requested additional information on the Heifer water well issue. Mayor Pro Tem Burroughs requested information relative to noise complaims filed by Nell Yeldell regarding the concrete plato and follow phone calls. Council Member McNeill requested information regarding the Heifer water well and phone calls not being returned. Council Member Redmon suggested improvements to the customer service phone system. City of Demon City Council Minutes October 21, 2003 Page 14 o Council Member Redmon requested improvements to arrival time arrangements with customers for service. F. Items from the City Manager City Manager Conduff did not have any items for Council. G. Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no continuation of Closed Meeting. H. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. The following action was taken on the Closed Meeting item: Burroughs motioned, Kamp seconded to authorize the City Manager to execute a settlement agreemem with Ken Gold as outlined in Closed Session. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. With no further action the meeting was adjourned at 9:05 p.m. EULINE BROCK MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES OCTOBER 27, 2003 After determining that a quorum was present, the City Council convened in a Work Session on Monday, October 27, 2003 at 12:30 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Kamp, McNeill, Montgomery, Redmon and Thomson. ABSENT: None 1. The Council held a discussion and gave staff direction regarding the agenda process and Council rules and procedures. Mike Conduff, City Manager, stated that the Agenda Committee had tried to take advantage of the educational component of the meetings and have 2-3 bullet reports on Items for Individual Consideration during the council meetings. These reports included big-ticket items highlighted to give a sense of comfort on what was being purchased and reports on items of special interest to the community. He suggested that the balance of Council let staff know items they wished to move for a bullet report after their review of the draft agendas. The Agenda Committee would make the final determination on which items would be considered for that process. Council discussion on the agenda process included: Providing Council a draft agenda via e-mail following the Agenda Committee review Changing the agenda format to include a section to allow Council to suggest items for individual consideration at both work sessions and planning sessions. Providing Council a paper copy of the agenda only either in the Friday packets or the night of the meeting Whether or not to request boards/commissions to review the purchase of equipment before Council consideration Council consideration on the policy implications on the purchase of a new piece of equipment that would significantly change the way the City did business A proposal involving the large purchase of a piece of equipment in terms of dollars and a new policy would have been through the budget process which involved consideration by a board or commission Receiving a recommendation from the appropriate board before making a decision on items, particularly the PUB and P& Z. Some boards were staff advisory rather than Council advisory. Mayor Brock reviewed Council's rules and procedures dealing with: Citizen reports Limit interaction with citizens Limit amount of questions especially if not listed on the agenda No discussion on the items City of DeNon City Council Minutes October 27, 2003 Page 2 Closed Clarification only Do not engage conversation with the citizen Can correct misstatements by citizens if the item was listed on the agenda Grant extension of speaker time only if approved by all of the council that it would be beneficial to receive additional information Extension of time for group citizen reports Session Revealing what took place during the Closed Session City Attorney Prouty stated that it was a criminal violation to reveal the certified agenda but not a violation to rephrase what happened in Closed Session. It also was illegal to provide citizens copies of his confidential status reports. This item might be a good item to place in a code of conduct. Council also discussed the policy of allowing concealed weapons in the meetings and the associated legal provisions. 2. The Council held a discussion and gave staff direction regarding staff assistance to Council, including but not limited to: A. 2004 meeting schedule B. Cell phones C. City Council travel schedules and funding City Secretary Jennifer Walters preseNed the 2004 meeting schedule and noted the changes in May due to the change in the election date. Council discussed the meeting times and the changing of those times. It was determined that a fixed time for the work session might not be feasible as the number of items on the work session varied. Staff would provide extra reminders of the starting times for the work sessions. City Manager Conduff proposed a convenience wireless tools allowance that would provide a financial allowance for Council for cell phone usage. Council could purchase a plan and phone of their choice and the city would reimburse them a set amount for that usage. Council discussion on cell phones included: The type of plan currently provided Open records requests if use a personal phone was used for city business The need to keep personal phone and e-mail accouNs separate from city business Drafting a cell phone usage policy Having a consistent plan for everyone The necessity of having a city cell phone Consensus of Council was to equalize all Council cell phone plans to around a $49.95 a moNh, anyone using over $50 for expenditure of minutes would receive a bill from the city, a summary of each month's usage would be sen to each council member and if the bill not were paid in an appropriate amouN of time, the issue would be brought before the Council for discussion. Council Member Redmon left the meeting. City of Demon City Council Minutes October 27, 2003 Page 3 City Manager Conduff cominued with a discussion on council travel schedules and funding. A handout provided a reminder of the meetings available to council. Those meetings were budgeted for full council participation. Non-budgeted meetings would be funded with savings when the full council did not attend budgeted meetings. Staff travel had been greatly restricted this year and he encouraged council to be thoughtful in regards to unbudgeted trips. Council requested periodic updates on amounts spent on travel and the last dates to cancel meetings in order to get a refund. With no further business, the meeting was adjourned at 2:15 p.m. EULINE BROCK MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES November 4, 2003 After determining that a quorum was presem, the City Council convened in a Work Session on Tuesday, November 4, 2003 at 5:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Kamp, McNeill, Montgomery, Redmon and Thomson. ABSENT: None 1. The Council received a report and held a discussion regarding a Retiremem Health Savings (RHS) Program with ICMA Retiremem Corporation. Eunice Brogdon, ICMA Retirement Corporation, reviewed the details of the program. The program would allow current employees to accumulate funds for post-employment medical expenses for health insurance and out-of-pocket medical expenses. This would help offset the costs of medical expenses during retiremem. The distributions were tax free for medical expenses. The program would be a benefit to both the retirees and the City. 2. Staff responded to requests for clarification of consent agenda items listed on the consent agenda for the meeting of November 4, 2003. Following the completion of the Work Session, the Council convened into a Closed Meeting to consider the specific items listed below: 1. Council considered the following in Closed Meeting: mo Consultation with Attorney - Under TEXAS GOVERNMENT CODE Section 551.071. Considered and discussed possible settlemem authority in litigation styled Sandy Reese Benigno and Harrold Anthony Benigno v. City of Denton and Billy Ray Crutsinger, Cause No. 2002-60190-393, curremly pending in the 393rd District Court, Denton County, Texas. Bo Deliberations regarding economic developmem negotiations - Under TEXAS GOVERNMENT CODE Section 551.087 and Consultation with the City Attorney - Under TEXAS GOVERNMENT CODE Section 551.071. Deliberated and discussed commercial or financial information received from a business prospect and offers of financial or other incentives to the business prospect for the purposes of economic development negotiations with TTHR, a Limited Partnership, regarding the construction of the expansion of a hospital facility in the City of DeNon, generally located at 207 North Bonnie Brae. Regular Meeting of the City of DeNon City Council on Tuesday, November 4, 2003 at 6:30 p.m. in the Council Chambers at City Hall. City of DeNon City Council Minutes November 4, 2003 Page 2 1. PLEDGE OF ALLEGIANCE The Council and audience recited the Pledge of Allegiance to the U. S. and Texas flags. 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards The City was presemed the 2003 Achievemem of Excellence in Procuremem Award. Mayor Brock presented proclamations for Municipal Courts Week and Texas Recycles Day. B. Recognition of staff accomplishments City Manager Conduffpresemed staff accomplishments to the Council and audience. 3. CITIZENS REPORTS A. The Council received citizen reports from the following: 1. John Skelton regarding the McKamy/Evers subdivision. Mr. Skelton was not present at the meeting. 2. Dessie Goodson regarding general issues of the City. Ms. Goodson stated she still had a problem with the landfill ordinance that the Council recently passed. She commented on recent articles in the Denton Record-Chronicle regarding former council members. She also felt that the hours of the LINK system were not adequate for riders and the service provided to the UNT students was not fair to other riders. 3. Richard Huckaby regarding NCTC governmem studems. Mr. Huckaby stated he had brought some of his NCTC government students to the meeting tonight to see government in action. As a former city manager, he appreciated all that the Council did. 4. CONSENT AGENDA Mayor Brock stated that there was a Request to Speak card for Item #4K. Jim Lindsey, developer of the Timbers of DeNon, spoke regarding the appeal of the imposition of impact fees. Burroughs motioned, Kamp seconded to approve the Consent Agenda and accompanying ordinances. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. City of DeNon City Council Minutes November 4, 2003 Page 3 Approved the minutes of September 30, October 7, October 8, and October 13, 2003. Approved tax refunds for the following property taxes: Tax Name Reason Amount Year I ~ P ~¢~ ~II td ~ ~SupP~ ~ ~ang~ g00g $552~9 2. Tom Jester & Paul Haywood DCAD Supplemental Change 2002 $ 928.45 2003-352 An ordinance establishing a Retiremem Health Savings (RHS) Program with ICMA Retirement Corporation, Vantagecare Retirement Health Savings Program; authorizing an adoption agreement with ICMA; executing a Declaration of Trust for the ICMA Vantagecare Retirement Health Savings Plan; naming the Human Resources Director as Coordinator for the plan; and establishing an effective date. 2003-353 - An ordinance accepting competitive bids and awarding an annual contract for the purchase of water and sewer parts for the City of Denton Warehouse; providing for the expenditure of funds therefor; and providing an effective date (Bid 3080 - Water and Sewer Supplies for Warehouse invemory stock awarded to Hughes Supply in the annual estimated amoum of $600,000). 2003-354 - An ordinance accepting competitive bids and awarding an annual comract for the purchase of cemem, lime and aggregate for use by various city departmems; providing for the expenditure of funds therefor; and providing an effective date (Bid 3089 - Cemem, Lime & Aggregate awarded to the lowest responsible bidder for each item in the estimated amoum of $2,300,000). 2003-355 - An ordinance accepting competitive bids and awarding a comract for the purchase of a Landfill Compactor for the City of DeNon Solid Waste Division; providing for the expenditure of funds therefor; and providing an effective date (Bid 3067 - Landfill Compactor awarded to A1-Jon in the amoum of $456,854). 2003-356 - An ordinance of the City of DeNon, Texas authorizing the Mayor to enter into an Interlocal Cooperation Agreement with the cities of Gainesville, Texas and Sherman, Texas for the use of personnel and equipment; authorizing the expenditure of funds therefor; and providing for an effective date. 2003-357 - An ordinance authorizing the rejection of the R.L. Adkins Bid and authorizing the re-advertisement for a Non-Drill Site/Pooling Agreement for South Lakes Park in the City of Demon, Texas; and providing an effective date. 2003-358 - An ordinance authorizing the City Manager to execute a Non-drill Site/Pooling Agreement with Joint Resources Company for 353 acres of North Lakes Park; and providing an effective date. City of DeNon City Council Minutes November 4, 2003 Page 4 2003-359 - An ordinance of the City of DeNon, Texas authorizing the competitive bid process for an oil and gas Non-Drill Site/Pooling Agreemem for the Airport Open Space Park; and providing an effective date. 2003-360 - An ordinance of the City Council denying the appeal of William Kim Fugitt, AIA (The Timbers at DeNon, LLC.) brought pursuam to §26-226 of City of DeNon Ordinance No. 2003-137, involving the imposition of impact fees; and providing for an effective date. 5. PUBLIC HEARINGS A. The Council held a public hearing and considered adoption of an ordinance granting approval of an off-site sub-surface use of Mack Park, and Lake Forest Park for the purpose of oil and gas drilling operations in accordance with Chapter 26 of the Texas Parks and Wildlife Code; providing for an oil and gas lease; and providing an effective date. Bob Tickner, Superimendent of Parks, stated that the alternative uses of the park locations were for oil and gas exploration in the area. State law required the public hearing to determine if this would be a proper use of the park site. No part of the park surface would be disturbed for the drilling. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. The following ordinance was considered: NO. 2003-361 AN ORDINANCE GRANTING APPROVAL OF AN OFF-SITE SUB-SURFACE USE OF MACK PARK, AND LAKE FOREST PARK FOR THE PURPOSE OF OIL AND GAS DRILLING OPERATIONS IN ACCORDANCE WITH CHAPTER 26 OF THE TEXAS PARKS AND WILDLIFE CODE; PROVIDING FOR AN OIL AND GAS LEASE; AND PROVIDING AN EFFECTIVE DATE. Burroughs motioned, Kamp seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. B. The Council held a public hearing and considered adoption of an ordinance amending the Detailed Plan for Planned Developmem 120 (PD-120) for approximately 50 acres. The property was generally located along the south side of the proposed extension of Hercules Lane approximately 1100 feet east of Nicosia Street. Residential and open space lots were proposed. The Planning and Zoning Commission recommended approval (7-0). (Z03-0019, North Pointe) City of Demon City Council Minutes November 4, 2003 Page 5 Kelly Carpenter, Director of Planning and Development, presented the details of the proposal. The amendmem was to the detailed plan and allowed for 16 additional housing units in the project that were originally in the 1998 concept plan. It also approved the alignment of Hercules and allowed the City better access to the transmission lines in the area. The Mayor opened the public hearing. The following individual spoke during the public hearing: Karen Mitchell, Mitchell Planning Group - favor The Mayor closed the public hearing. The following ordinance was considered: NO. 2003-362 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING AND APPROVING A DETAILED PLAN FOR AN APPROXIMATE 50 ACRE PORTION OF PLANNED DEVELOPMENT 120 (PD-120) ZON1NG DISTRICT AND LAND USE CLASSIFICATION TO INCREASE THE NUMBER OF RESIDENTIAL LOTS AND THE REALIGNMENT OF HERCULES LANE; 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. (Z03-0019) Montgomery motioned, Thomson seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. 6. ITEMS FOR INDIVIDUAL CONSIDERATION A. The Council considered adoption of an ordinance of the City of Demon, Texas authorizing the City Manager to execute a Compromise Settlement Agreement and Release of All Claims in litigation styled Sandy Reese Benigno and Harrold Anthony Benigno v. City of Denton and Billy Ray Crutsinger, Cause No. 2002-60190-393, currently pending in the 393rd District Court of Denton County, Texas; authorizing the expenditure of funds therefor; and providing an effective date. The following ordinance was considered: NO. 2003-363 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS IN LITIGATION STYLED SANDY REESE BENIGNO AND HARROLD ANTHONY BENIGNO V. CITY OF DENTON AND BILLY RAY CRUTSINGER, CAUSE NO. 2002-60190-393, CURRENTLY PENDING IN THE 393RD City of Demon City Council Minutes November 4, 2003 Page 6 DISTRICT COURT OF DENTON COUNTY, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. Montgomery motioned, McNeill seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. B. The Council considered adoption of an ordinance establishing an Economic Development Program under Chapter 380 of the Local Government Code for making grants of public money to promote economic developmem and to stimulate business activity in the City of Denton; approving an Economic Development Incentive Agreement with TTHR Limited Partnership regarding the purchase of tangible personal property using a Texas Direct Payment Permit to generate local use tax revenue to the City, which tangible personal property will be located at an expanded hospital facility in the City of Demon generally located at 207 North Bonnie Brae; authorizing the expenditure of funds therefor; and providing an effective date. Linda Ratliff, Director of Economic Development, stated that the Texas Direct Payment Permit would allow the city to share in the revenues generated by the hospital. The following ordinance was considered: No. 2003-364 AN ORDINANCE ESTABLISHING AN ECONOMIC DEVELOPMENT PROGRAM UNDER CHAPTER 380 OF THE LOCAL GOVERNMENT CODE FOR MAKING GRANTS OF PUBLIC MONEY TO PROMOTE ECONOMIC DEVELOPMENT AND TO STIMULATE BUSINESS ACTIVITY IN THE CITY OF DENTON; APPROVING AN ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT WITH TTHR LIMITED PARTNERSHIP REGARDING THE PURCHASE OF TANGIBLE PERSONAL PROPERTY USING A TEXAS DIRECT PAYMENT PERMIT TO GENERATE LOCAL USE TAX REVENUE TO THE CITY, WHICH TANGIBLE PERSONAL PROPERTY WILL BE LOCATED AT AN EXPANDED HOSPITAL FACILITY IN THE CITY OF DENTON GENERALLY LOCATED AT 207 NORTH BONNIE BRAE; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. Burroughs motioned, Kamp seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. C. The Council considered adoption of an ordinance of the City of Demon, Texas granting an exaction variance to the Park Dedication and Development Fees Requirements for neighborhood parks for Robson Ranch, PD-173, being a residemial developmem consisting of approximately 2,725 acres of land generally located between 1-35W and Florence Road and between Robson Ranch Road and Lively Road in the City of Demon, Texas; approving a recreational program agreement; and providing an effective date. City of DeNon City Council Minutes November 4, 2003 Page 7 Janet Simpson, Director of Parks and Recreation, stated that the City had been working with Robson for quite some time on this type of agreement. Robson had requested a variance to the Park Dedication and Development Fees requirement due to the type of population of the residents in the development and the recreational facilities that the development had provided. Robson was agreeing to allow public access to these facilities and to a recreational program agreement for the use of the facilities. The following ordinance was considered: NO. 2003-365 AN ORDINANCE OF THE CITY OF DENTON, TEXAS GRANTING AN EXACTION VARIANCE TO THE PARK DEDICATION AND DEVELOPMENT FEES REQUIREMENTS FOR NEIGHBORHOOD PARKS FOR ROBSON RANCH, PD-173, BEING A RESIDENTIAL DEVELOPMENT CONSISTING OF APPROXIMATELY 2,725 ACRES OF LAND GENERALLY LOCATED BETWEEN 1-35W AND FLORENCE ROAD AND BETWEEN ROBSON RANCH ROAD AND LIVELY ROAD IN THE CITY OF DENTON, TEXAS; APPROVING A RECREATIONAL PROGRAM AGREEMENT; AND PROVIDING AN EFFECTIVE DATE. Burroughs motioned, McNeill seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. D. The Council considered approval of a resolution nominating members to the Appraisal Review Board of the DeNon Central Appraisal District; and declaring an effective date. The following resolution was considered: NO. R2003-039 A RESOLUTION NOMINATING MEMBERS TO THE APPRAISAL REVIEW BOARD OF THE DENTON CENTRAL APPRAISAL DISTRICT; AND DECLARING AN EFFECTIVE DATE. Mayor motioned, McNeill seconded to nominate the following individuals: Patricia Muro, Sandra Faust, Jack Weir, and David Herold. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. E. The Council considered adoption of an ordinance accepting competitive bids and awarding a public works contract for the construction of the Eastern Pecan Basin Sanitary Sewer Replacemems and Liners; providing for the expenditure of funds therefor; and providing an effective date (Bid 3088 - Eastern Pecan Basin Sanitary Sewer Replacemems and Liners awarded to PATCO Utilities, Inc., in amoum not to exceed $1,342,953.25). City of DeNon City Council Minutes November 4, 2003 Page 8 Jim Coulter, Director of Water and Wastewater Operations, stated the project would allow for repairs to the Eastern Pecan Basin section of the sanitary sewer area. Leakage of rainwater into the collection system was occurring which caused overflows into the environment. This would also allow for more efficient treatment of the system. The following ordinance was considered: No. 2003-366 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF THE EASTERN PECAN BASIN SANITARY SEWER REPLACEMENTS AND LINERS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (BiD 3088 - EASTERN PECAN BASIN SANITARY SEWER REPLACEMENTS AND LINERS AWARDED TO PATCO UTILITIES, INC., IN AMOUNT NOT TO EXCEED $1,342,953.25). Montgomery motioned, Thomson seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. F. The Council considered adoption of an ordinance authorizing the Mayor to execute an interlocal Agreement between the City of Denton and Texas Woman's University to provide for Off-Campus Motor Carrier Passenger Service for TWU studems, staff and faculty; and providing for an effective date. Mark Nelson, Director of Airport and Transportation Operations, stated this agreement would be a partnership with TWU and the City of DeNon. A flat fee would be charged to the university based on past ridership figures with a 20% discoum. The University paid for the studems, staff and faculty to ride on the system. The following ordinance was considered: NO. 2003-367 AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN INTERLOCAL AGREEMENT BETWEEN THE CITY OF DENTON AND TEXAS WOMAN'S UNIVERSITY TO PROVIDE FOR OFF-CAMPUS MOTOR CARRIER PASSENGER SERVICE FOR TWU STUDENTS, STAFF AND FACULTY; AND PROVIDING FOR AN EFFECTIVE DATE. Kamp motioned, Thomson seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. G. New Business The following items of New Business were suggested by Council Members for future agendas: City of Demon City Council Minutes November 4, 2003 Page 9 Mayor Pro Tem Burroughs requested a future work session to discuss the mutual aid agreement ordinance relative to time limits for the contracts and definitions of emergency situations. Council Member McNeill suggested that Council encourage the Planning and Zoning Commission to consider the infill criteria and incorporate it into the quarterly revision of the Developmem Code. 3. Council Member Redmon suggested a public meeting by the Council or the Mayor regarding the City transportation system relative to street construction. 4. Council Member Montgomery requested an update on the Denia area access to and from the freeway due to the Eagle Point development. Items from the City Manager 1. Notification of upcoming meetings and/or conferences 2. Clarification of items on the agenda City Manager Conduff did not have any items for Council. I. Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no cominuation of Closed Session. J. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no official action on Closed Meeting items. With no further business, the meeting was adjourned at 7:42 p.m. EULINE BROCK MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES November 11, 2003 After determining that a quorum was present, the City Council convened in a Planning Session on Tuesday, November 11, 2003 at 4:00 p.m. in the City Council Work Session Room at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Kamp, McNeill, Montgomery, and Thomson. ABSENT: Council Member Redmon 1. The Council received outcome statements and held a discussion regarding long range (50 year) planning issues for Solid Waste, Wastewater and Water. Mike Conduff, City Manager, stated that Council had reviewed water and wastewater 50-year concepts at the last meeting. Outcome statements included the 50-year disposal outcome for solid waste. He reviewed the concept of reasonable interpretation and the concept that the vision was the state to arrive at in the future. The statements should be written as though they had already been achieved. He asked Council if they wanted to revise any of the water, wastewater and solid waste outcome statements from the prior planning session. Council discussion added the following out-of-bound statements: Failure to explore/utilize regional solutions Unsightly refuse containers in public view Council Member Redmon arrived at the meeting. Council suggested the following topics for future discussion: Privatization of solid waste functions Creation of a reserve fund for acquisition of additional capacity from the disposal of waste from outside the city Council also discussed the need for feedback to citizens regarding how outcomes have been interpreted and what was being done in regards to the outcome statements. 2. The Council received a report and held a discussion regarding downtown and implementation of the Downtown Master Plan. Linda Ratliff, Director of Economic Development, stated that Council had been provided a copy of the Downtown Master Plan and a section of the TIP strategies relative to Downtown in the agenda backup materials. Council discussed the recent economic/transit trip they took to Dallas. A list of items of interest/ discussion points from that trip included: Streetscapes and water features Public/private partnerships Use of Requests For Qualifications Development agreements as zoning ordinances Infill development City of DeNon City Council Minutes November 11, 2003 Page 2 Community involvemem, particularly directly affected parties Use of external experts for city advocates importance of quality Need of cominuity of elected leadership Planning and Zoning support Access to the regional transportation system Access to downtown linkages Even with improvements, there were still problems Public art Variety in rail stations Mews approach Interior parking Open-air concept Compatible existing to new development Property acquisition Need incemive programs Multi-use spaces Real cities need great downtowns Dowmowns are linked to economic developmem and general well being Big vision, small projects Nice doesn't have to be big Transit as a partner Stops as assets to the community Council also discussed the newly formed Economic Development Board relative to task force assignments and assignments based on the TIP strategies recommendations. 3. Council made suggestions to the Agenda Committee on future agenda items and/or placement of items for upcoming agendas. Council did not have any suggestions of items to be moved from the Consem Agenda to Items for individual Consideration for the November 18~h agenda. Mayor Brock suggested holding a discussion on the Civic Cemer Park master plan during either a planning session or a luncheon session. Mayor Brock suggested a discussion of the proposal by A1 Grones regarding drainage areas. Council Member Momgomery suggested Council determine a small project to be completed in 2004. Council Member Redmon suggested Council do some streetscaping along the new sidewalks on Bell near their adopt-a-spot. Council Member McNeill requested a discussion regarding gas well revenues. Other areas of discussion included: City of Demon City Council Minutes November 11, 2003 Page 3 Council Member McNeill suggested using some of the fourth Tuesdays for shorter discussion sessions rather than trying to hold those discussions in work sessions. Council Member Thomson indicated that he had plans already made for some of the fourth Tuesdays. A suggestion was made to lengthen the time of the luncheon meetings an extra half hour to allow for discussion of smaller topics. General consensus of the Council was that this would be acceptable. Council Member McNeill questioned why not all of the Council's suggestions were included in the Future Items Chart. Mayor Brock indicated that some of the suggestions were merely requests for information from individual members and not topics for future items. With no further business, the meeting was adjourned at 6:05 p.m. EULINE BROCK MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES November 18, 2003 After determining that a quorum was presem, the City Council convened in a Work Session on Tuesday, November 18, 2003 at 4:30 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Kamp, McNeill, Montgomery, Redmon and Thomson. ABSENT: None 1. The Council received a report, held a discussion and provided direction to the Solid Waste Department on the Solid Waste Collection and Transportation Services Permit Rate (SWP). Vance Kemler, Director of Solid Waste, reviewed the current regulations for waste haulers. He indicated that the Solid Waste Department wanted to establish new rates that would compensate the City for the use of the streets, and program oversight and management by those companies permitted or registered to provide service for special wastes and recyclable materials. Collection and transportation service providers had to obtain permits to collect and transport special wastes and recyclable materials within the city. He reviewed the currem comractors, the additional revenue projections with the proposed ordinance and a funding method/fee survey done with 28 area cities. Council discussion included the difference in application fees among the various types of applications; inconsistencies in the permit fees and a concern about the possibility of double permit fees being charged. 2. Staff responded to requests for clarification of consent agenda items listed on the consent agenda for the regular meeting of November 18, 2003. Following the completion of the Work Session, the City Council convened in a Closed Meeting to consider the specific items listed below. 1. The following was considered in Closed Meeting: mo Deliberations regarding real property-Under TEXAS GOVERNMENT CODE Section 551.072, Consultation with Attorney-Under TEXAS GOVERNMENT CODE Section 551.071, and Deliberations regarding economic developmem negotiations-Under TEXAS GOVERNMENT CODE Section 551.087. Deliberated the value of real property imerests for a partial right-of way abandonment on Cedar Street, in the W.M. Neil Survey, Abstract Number 971 and being a tract of land approximately 1,234 square feet in size, located at the southeast corner of Cedar Street at the intersection of Cedar Street and Walnut Street DeNon, Texas (the '?ropert)~); which abandonmem is for a public purpose. Received legal advice from the City Attorney or his staff concerning legal issues regarding the abandonment of such real property imerests. Deliberate commercial or financial information received from a business prospect and offers of financial or other incentives to the business prospect for the purposes of economic developmem of facilities of the business prospect on or near the Property. City of DeNon City Council Minutes November 18, 2003 Page 2 B. Consultation with Attorney-Under Tex. Gov't Code§551.071. Discussed and considered legal issues concerning Charter Communications dba Marcus Cable Associates, L.L.C. (Charter) as follows: · Charter Franchise Fee Audit, and · Non-paymem of Cable Modem Franchise Fees, where to discuss these legal issues concerning the above state matters with attorneys in public would conflict with the duty of the City's attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas and would jeopardize the City's position in administrative proceedings or in potential litigation. Regular Meeting of the City of DeNon City Council on Tuesday, November 18, 2003 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. 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards Mayor Brock presemed proclamations for Sama's Helpers Week, Frenchy, City of DeNon Parks and Recreation Gold Medal Award Winner Week. B. November Yard of the Month Awards Mayor Brock presented Yard of the Month awards to: Joe Ann Andrews Kerri and Junior Burnside Brenda Floyd Scott Willis Don and Wanda Smith Carmen and David Bailey Water Smart Yard-Bob and Dianne Edmondson Business-Apple Orthodomix C. Recognition of staff accomplishmems City Manager Conduffpresemed staff accomplishmems. 3. CITIZENS REPORTS A. The Council received citizen reports from the following: City of DeNon City Council Minutes November 18, 2003 Page 3 1. Bob Clifton regarding malfeasance, misfeasance and nonfeasance. Mr. Clifton presemed a comparison of the City of DeNon salaries. He also commemed on the city's noise ordinance and the inconsistencies he felt were in the ordinance. 2. Dessie Goodson regarding city ordinances. Ms. Goodson commented on the contracts the LINK system had with the two universities and the route system. She questioned the duties of the Code Enforcement Office. 4. CONSENT AGENDA Burroughs motioned, Kamp seconded to approve the Consent Agenda and accompanying ordinances and resolutions. On roll vote, Burroughs"ayd', Kamp"ayd', McNeill"ayd', Momgomery 'hyd', Redmon"ayd', Thomson"ayd'and Mayor Brock"ayd'. Motion carried unanimously. 2003-368 - An ordinance of the City Council of the City of DeNon, Texas authorizing the City Manager to execute a Professional Services Agreemem with R. J. Covington consulting, LLC., for consulting services relating to Task Order No. 03-I, regarding regulatory services at the Electric Reliability Council of Texas and at the Public Utility Commission of Texas, relating to the City's position on issues and the interests of Denton Municipal Electric; authorizing the expenditure of funds therefor; and providing an effective date. 2003-369 - An ordinance of the City of DeNon, Texas authorizing the expenditure of funds for Wide Area Network Charges for DeNon Municipal Electric; providing for the expenditure of funds and providing an effective date (File 3108 to Electric Reliability Council of Texas (ERCOT) in the total estimated amoum $54,000). 2003-370 - An ordinance authorizing the execution of Change Order Number One to a contract of lease purchase financing of PC's, monitors, and peripheral equipment between the City of Denton and Dell Government Leasing and Finance; providing for an increase in the quamity of items, increase in the annual lease paymem amoum; and providing for the expenditure of funds therefore; and providing an effective date (File 3110 to Dell Governmem Leasing and Finance awarded in the amoum of $1,056,923.70 and change order one in the amoum of $331,241.64 for a total of $1,388,165.34). 2003-371 - An ordinance accepting competitive bids and awarding a comract for the purchase of bunker gear for the City of DeNon Fire Departmem; providing for the expenditure of funds therefore; and providing an effective date (Bid 3087- Bunker Gear/Turnout Gear awarded to NAFECO Fire Equipment Company in the estimated amoum of $50,000). 2003-372 - An ordinance authorizing the Mayor to enter into an Interlocal Cooperation Agreemem with DeNon County for Library Services; and providing an effective date. City of DeNon City Council Minutes November 18, 2003 Page 4 R2003-040 - A resolution casting votes for membership to the Board of Directors of the Denton Central Appraisal District; and declaring an effective date. 2003-373 - An ordinance amending Ordinance No. 2001-204 and Section 2-29 of the City Code relating to the Rules of Procedure to clarify Section 6.3(2-29(f)(3) '?resentations by Members of the Council'; correcting a reference in Ordinance 2003-235; providing a savings clause; and providing an effective date. 2003-374 - An ordinance of the City of DeNon, Texas, authorizing the competitive bid process for an oil and gas non-drill site/pooling agreemem for the Southern portion of the Airport Open Space; and providing an effective date. R2003-041 - A resolution by the City Council of the City of DeNon relating to the issuance of bonds by North Texas Higher Education Authority, Inc.; approving the issuance of such bonds and the use of the proceeds of such bonds; and making certain findings in connection therewith. 5. PUBLIC HEARINGS A. The Council held a public hearing and considered adoption of an ordinance regarding the rezoning of approximately 186.5 acres. The applicant was requesting to rezone from Neighborhood Residemial 4 (NR-4) and Neighborhood Residemial 2 (NR-2) to Neighborhood Residemial 3 (NR-3), Neighborhood Residemial 6 (NR-6), Neighborhood Residemial Mixed Use 12 (NRMU-12), and Neighborhood Residemial Mixed Use (NRMU). The property was generally located north of Pockrus Paige Road, west of Swisher Road, and south of Edwards Road. The applicam was proposing a mixed-use developmem that would include single-family housing, general retail, town homes, multi-family and park uses. The Planning and Zoning Commission recommended approval (6-0). (Z03-0024, Village of Lake Forest) Kelly Carpemer, Director of Planning and Development, presented the details of the proposal. No letters of opposition or support had been received. Annexation of the area would begin in late 2003-early 2004. The Mayor opened the public hearing. The following individual spoke during the public hearing: Bill Dahlstrom, 901 Main Street, Dallas, 75202 - favor The Mayor closed the public hearing. The following ordinance was considered: NO. 2003-375 City of Demon City Council Minutes November 18, 2003 Page 5 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FOR APPROXIMATELY 106.06 ACRES OF LAND LOCATED AT THE NORTH OF POCKRUS PAIGE ROAD, WEST OF SWISHER ROAD AND SOUTH OF EDWARDS ROAD IN THE CITY OF DENTON, DENTON COUNTY, TEXAS IN THE GIDEON SURVEY ABSTRACT NO. 1330, FROM NEIGHBORHOOD RESIDENTIAL-2 (NR-2) AND NEIGHBORHOOD RESIDENTIAL-4 (NR-4) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATIONS TO NEIGHBORHOOD RESIDENTIAL-3 (NR-3), NEIGHBORHOOD RESIDENTIAL-6 (NR-6), NEIGHBORHOOD RESIDENTIAL- MIXED USE-12 (NRMU-12), AND NEIGHBORHOOD RESIDENTIAL MIXED USE (NRMU) ZONING DISTRICT CLASSIFICATIONS AND USE DESIGNATIONS; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z03-0024) McNeill motioned, Kamp seconded to adopt the ordinance. On roll vote, Burroughs'hyd', Kamp 'hyd', McNeill"ayd', Momgomery"ayd', Redmon"ayd', Thomson'hyd' and Mayor Brock"ayd'. Motion carried unanimously. B. The Council held a public hearing and considered adoption of an ordinance regarding an amendment to Subchapter 5 of the Denton Development Code pertaining to the limitations of Accessory Dwelling Units. The Planning and Zoning Commission recommended approval (6-0). (SI03-0017, Accessory Dwelling Units) Kelly Carpenter, Director of Planning and Development, presented the details of the amendment to the Code regarding accessory dwelling units. The change would allow for larger accessory dwelling units on large sized parcels. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. The following ordinance was considered: NO. 2003-376 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING PORTIONS OF SUBCHAPTER 5 OF THE DENTON DEVELOPMENT CODE PERTAINING TO LIMITATIONS OF ACCESSORY DWELLING UNITS; PROVIDING A PENALTY CLAUSE WITH A MAXIMUM FINE OF $2000.00 PER DAY FOR A VIOLATION THEREOF; A SEVERABILITY CLAUSE; AND AN EFFECTIVE DATE. (S103-0017) Burroughs motioned, Thomas seconded to adopt the ordinance. On roll vote, Burroughs "ayd', Kamp "ayd', McNeill "ayd; Momgomery"ayd', Redmon"ayd', Thomson"ayd' and Mayor Brock"ayd'. Motion carried unanimously. City of Demon City Council Minutes November 18, 2003 Page 6 C. The Council held a public hearing and considered adoption of an ordinance regarding an amendment to Subchapter 12 of the Denton Development Code pertaining to the applicability of industrial Performance Standards. The Planning and Zoning Commission recommended approval (6-0). (Si03-0018, industrial Performance Standards) Kelly Carpenter, Director of Planning and Development, stated that there was an error in the language of the Code relative to industrial Performance Standards. The proposed ordinance would correct the language to allow for industrial performance standards in an industrial area. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. The following ordinance was considered: NO. 2003-377 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING PORTIONS OF SUBCHAPTER 12 OF THE DENTON DEVELOPMENT CODE PERTAINING TO APPLICABILITY OF INDUSTRIAL PERFORMANCE STANDARDS; PROVIDING A PENALTY CLAUSE WITH A MAXIMUM FINE OF $2000.00 PER DAY FOR A VIOLATION THEREOF; A SEVERABiLiTY CLAUSE; AND AN EFFECTIVE DATE. (S 103-0018) Kamp motioned, McNeill seconded to adopt the ordinance. On roll vote, Burroughs'hyd', Kamp 'hyd', McNeill"ayd', Momgomery"ayd', Redmon"ayd', Thomson'hyd' and Mayor Brock"ayd'. Motion carried unanimously. D. The Council held a public hearing and considered adoption of an ordinance regarding the rezoning of approximately 5 acres from a Neighborhood Residemial 4 (NR-4) zoning district to a Neighborhood Residemial 6 (NR-6) zoning district. The property, commonly known as 305 and 321 Mockingbird Lane, was generally located at the intersection of Mockingbird and Oriole Lane along the west side of Mockingbird Lane. Detach single-family units were proposed. The Planning and Zoning Commission recommended denial (5-1). (Z03- 0022, Oriole Court) City Manager Conduff stated that it would be acceptable to hold public hearings for Items D and E at the same time. The proposals would be voted on separately but the public hearings could be held together. Kelly Carpenter, Director of Planning and Development, presented the details of the proposals. Staff had recommended favor of the proposals, however, the Planning and Zoning Commission recommended denial. The petitioner was the Denton Affordable Housing Corporation. An additional neighborhood meeting was held since the Planning and Zoning Commission meeting and the Housing Corporation had proposed some changes to the proposal with a reduction in the number of lots for both sites. City of DeNon City Council Minutes November 18, 2003 Page 7 City Attorney Prouty stated that as the proposals were recommended for denial from the Planning and Zoning Commission, a supermajority vote by the Council would be required. The Mayor opened the public hearing. The following individuals spoke during the public hearings: Alan Bussell, represeming the petitioner - favor Jane Provo, Demon Affordable Housing Corporation-favor Guadalupe Salsedo, 1109 Manhattan, Demon, 76209 - favor Linnie McAdams, Demon Affordable Housing Corporation-favor Tommy Brewer, 1701 Thorndale Court, Corimh, 76210 - favor Wendy Boyals, 2704 Norfolk Court, Demon 76210 - favor Jack McKinney, 3140 North Trinity Road, Demon, 76208 - favor Kae Fisher, 2601 Oak Shores Drive, Cross Roads, 76227 - favor Martha Hall, 701 Pace Drive, Demon 76209-favor Joe Lanham, 4090 Sauls, Demon, 76209-favor Mark Moore, 3029 Brandywine, Demon, 76209 - favor Martin Jekyll, 2111 Emerson, Demon, 76209 - favor James Fagan, 3304 Woodthrush Lane, Demon, 76209 - opposed Jean Pekara, 3403 Kingfisher Lane, Demon, 76209 - opposed Jeff Hyde, 3406 Kingfisher Court, Demon, 76209 - opposed Dierdre Wendel, 3300 Woodthrush Lane, Demon, 76209 - opposed Carlton Wendel, 3300 Woodthrush Lane, Demon, 76209 - opposed Wendy Mayfield, 3321 Kingfisher Lane, Demon, 76209 - opposed Jan Grawo, 3323 Kingfisher Lane, Demon, - opposed Joyce Byers, 3304 Kingfisher Lane, Demon - opposed Mayor Brock indicated that the following Commem Cards had been received: Elizabeth Fagan, 3304 Woodthrush, DeNon, 76209 - opposed Jeannine Wendel, 3300 Woodthrush, DeNon, 76209 - opposed Andy Joe and Neva Thomas, 3318 Meadowlark, DeNon, 76209 - opposed The Mayor closed the public hearing. City Attorney Prouty stated that the only way the Council could vote on a change would be if the change were less intensive than what was proposed. As there had been new information provided, he would recommend that the Council not vote on the two proposals before the Planning and Zoning Commission reconsidered the items. Council discussed the pros and cons of the proposals with the following poims of consideration: Staff had recommended approval of the proposals but the Planning Commission had recommended denial with little or no discussion. The surrounding neighborhood was developed under the previous code. and Zoning City of DeNon City Council Minutes November 18, 2003 Page 8 The proposal was really between two zoning categories, NR-4 and NR-6 with an NR-5 category not an option. It would be difficult to bind the applicam to a lower density. Due to new information presented after the Planning and Zoning Commission meeting, new questions had come up and the Commission really needed to look at proposals again. New information had come forth both from the petitioner and the neighborhood as there was not as much opposition during the Planning and Zoning Commission meeting. There was a need to look at an NR-5 zoning category for the future. It would be difficult to vote for the proposal at this time based on the recommendation by the Planning and Zoning Commission and the opposition by the neighborhood. Consideration of the time limits for the applicant to return to Council with the changed proposal. Burroughs motioned, McNeill seconded to deny the application with a suggestion that Denton Affordable Housing bring back the application with the modifications and encourage staff look at an NR-5 zoning classification. Ms. McAdams requested that the Council remand the proposals back to the Planning and Zoning Commission based on the new information and changed proposal rather than deny the proposals due to the time factor involved in starting the entire process again after denial. Burroughs offered a substitute motion, seconded by McNeill to remand the proposal to the Planning and Zoning Commission so that it could receive the new information that had been presented to the Council at this meeting. Carpenter questioned that if the proposal was remanded to the Planning and Zoning Commission with an application for NR-6 zoning, what was the Council asking the Commission to reconsider as there was no NR-5 zoning classification. The property owner would not be bound by a site plan that would reflect any proposed changes. It was unclear what the Council would be asking the Commission to reconsider. Council responded that there was a recommendation to downzone the proposal but what would be the process to enforce that downzoning. Restrictive covenants to deeds had been suggested but at this point it was unclear if that would be sufficient. Denton Affordable Housing would have to present that to the Commission as an option to consider. On roll vote to remand the proposal back to the Planning and Zoning Commission, Burroughs 'hyd', Kamp 'hyd', McNeill "ayd', Momgomery"ayd', Redmon"ayd', Thomson"ayd' and Mayor Brock 'hyd'. Motion carried unanimously. Council requested that a transcript of this discussion be sent to the Planning and Zoning Commission. E. The Council held a public hearing and considered adoption of an ordinance regarding the rezoning of approximately 5.4 acres from a Neighborhood Residemial 4 (NR-4) zoning district to a Neighborhood Residemial 6 (NR-6) zoning district. The property, commonly known as 406, 408, 410, and 414 Mockingbird Lane, was generally located at the imersection of Mockingbird Lane and Weston Drive along the east side of Mockingbird Lane. Detached and City of DeNon City Council Minutes November 18, 2003 Page 9 attached single-family units were proposed. The Planning and Zoning Commission recommended denial (5-1). (Z03-0023, Nevada Court) The public hearing for this item was held in conjunction with Item D. Burroughs motioned, McNeill seconded to remand the proposal back to the Planning and Zoning Commission. On roll vote, Burroughs"ayd', Kamp"ayd', McNeill"ayd', Momgomery"ayd', Redmon 'hyd', Thomson"ayd'and Mayor Brock"ayd'. Motion carried unanimously. 6. ITEMS FOR INDIVIDUAL CONSIDERATION A. The Council considered adoption of an ordinance of the City of DeNon, Texas authorizing a settlement agreement with Marcus Cable Associates, L. L. C. D/B/A Charter Communications; 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 agreement; and to make such other actions deemed necessary to finalize the agreement; and declaring an effective date. The following ordinance was considered: NO. 2003-378 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING A SETTLEMENT AGREEMENT WITH MARCUS CABLE ASSOCIATES, L. L. C. D/B/A CHARTER COMMUNICATIONS; 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 AGREEMENT; AND TO MAKE SUCH OTHER ACTIONS DEEMED NECESSARY TO FINALIZE THE AGREEMENT; AND DECLARING AN EFFECTIVE DATE Burroughs motioned, Kamp seconded to authorize staff as stated in Item 6A and as presented in Closed Session. On roll vote, Burroughs "ayd', Kamp "ayd', McNeill "ayd', Momgomery "ayd', Redmon"ayd; Thomson"ayd' and Mayor Brock"ayd'. Motion carried unanimously. A. New Business The following items of New Business were suggested by Council for future agendas: 1. Council Member Montgomery requested information on the residential cart service for solid waste. 2. Mayor Pro Tem Burroughs requested that the review of the Development Code include a discussion on alternative developmem plans and an NR-5 zoning classification. 3. Mayor Pro Tem Burroughs suggested a luncheon discussion topic on changing the amoum of speaker time allowed an applicam during a public hearing from 3 to 5 minutes. 4. Council Member Thomson requested a discussion on allowing the use of Mexican metriculas for paying bills for the City of Demon. 5. Council Member McNeill asked for a discussion on infill developmem. City of DeNon City Council Minutes November 18, 2003 Page 10 6. Mayor Brock suggested that the discussion of alternative development plans include the possible need for a planned developmem or overlay zoning in certain cases. 7. Council Member Redmon stated that he would like to see individual developmem cases already in process be held accoumable to the new tree regulations once they were approved and not be grandfathered under the old regulations. Items from the City Manager 1. Notification of upcoming meetings and/or conferences 2. Clarification of items on the agenda City Manager Conduff did not have any items for Council. C. Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no cominuation of the Closed Meeting. D. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no official action on Closed Meeting items. With no further business, the meeting was adjourned at 9:35 p.m. EULINE BROCK MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: December 2, 2003 Materials Management Questions concerning this acquisition may be directed to Sharon Mays 349-8487 Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider adoption of an Ordinance of the City of DeNon, Texas authorizing the expenditure of funds for payments by the City of Denton for electrical energy transmission fees to those cities and utilities providing energy transmission services to the City of Denton; and providing an effective date (File 3118-Electrical Energy Transmission Fees in the total amoum of $255,920). BID INFORMATION This item is for four purchase orders that reflect the estimated additional cost of transmission of electrical energy from the generation source to the Denton Municipal Electric Distribution System for October 2003 through December 2003. The purchase orders are for paymem of a fee imposed by the Public Utility Commission of Texas (PUCT) for planned transmission services of energy delivered to the City of Denton. The Public Utility Regulatory Act of 1995 (PURA 95) required the developmem of a new, statewide mechanism for electric transmission service in Texas. PURA 95 also placed municipal utilities under the jurisdiction of PUCT for matters related to transmission. As a result, the Denton Municipal Electric Utility has been ordered by the PUCT to pay various other electric utilities in the State specific amoums. The subject purchase orders provide the City of DeNon the authority required by the City Charter to make those paymems. These purchase orders will encumber funds estimated as costs for services through December 31, 2003. No funds will actually be spem umil invoices are received, reviewed, and approved. RECOMMENDATION We recommend approval as follows: Purchase Order Vendor 114892 Cemer Poim Energy $67,200 114893 Oncor Transmission Division $93,900 114891 Lower Colorado River Authority $66,000 114890 American Electric Power $28,820 Amount Agenda Information Sheet December 2, 2003 Page 2 PRINCIPAL PLACE OF BUSINESS Center Point Energy Oncor Transmission Div. Lower Colorado River Houston, TX Dallas, TX Austin, TX American Electric Power Columbus, OH FISCAL INFORMATION Funds to meet these regulatory fee obligations were budgeted in 2003-2004-budget account 600400.6072. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent 1-AIS-File 3118 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE EXPENDITURE OF FUNDS FOR PAYMENTS BY THE CITY OF DENTON FOR ELECTRICAL ENERGY TRANSMISSION FEES TO THOSE CITIES AND UTILITIES PROVIDING ENERGY TRANSMISSION SERVICES TO THE CITY OF DENTON; AND PROVIDING AN EFFECTIVE DATE (FILE 3118-ELECTRICAL ENERGY TRANSMISSION FEES IN THE TOTAL AMOUNT OF $255,920). WHEREAS, in order to comply with the legislative requirements contained in the Utility Regulatory Act of 1995, for the payment for energy transmission services fees, the City of Denton is required to pay such fees imposed by the Public Utilities Commission of Texas to four listed utilities set forth in Exhibit "A": and WHEREAS, the City Manager has reviewed and recommended that the City Council approve and authorize the payment of such; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the expenditure of funds in the amount of $255,920 to be paid to the Listed Utilities in the specified amount shown on Exhibit "A", which is attached to and made a part of this ordinance for all purposes is hereby authorized. SECTION 2. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ., 2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-FILE 3118 EXHIBIT "A" OP 114892- Center Point Energy OP 114893- Oncor Transmission Div. OP 114891- Lower Colorado River Authority OP 114890- American Electric Power TOTAL $67,200 $93,900 $66,000 $28,820 $255,920 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: December 2, 2003 Materials Management Kathy DuBose, Fiscal and Municipal Services Questions concerning this acquisition may be directed to Jim Coulter 349-7194 SUBJECT Consider adoption of an Ordinance of the City Council of the City of Denton, Texas authorizing the City Manager to execute a Professional Services Agreement with Black and Veatch Corporation, for professional consulting services relating to the Denton Municipal Water Utilities Cost of Service and Rate Design Study; authorizing the expenditure of funds therefore and providing an effective date (File 3091-in an amount not to exceed $55,000). RFP INFORMATION The Water and Wastewater departments traditionally contract for outside engineering and consulting services to perform cost of service and rate design analyses approximately every five to seven years. They are also required by contract with their wholesale customers to have an outside consultant perform a rate study every five to seven years. During interim years, in-house financial staff members perform these studies. Periodic cost of service and rate design analyses performed by professional consultants provides expertise in reviewing all costs and allocation processes and ensuring that rates are equitably designed among all rate classes. Although separate Water and Wastewater rate studies could be developed, the close operational relationship between the two utilities makes it technically and financially desirable to develop the studies in one coordinated effort. Funding for this cost of service/rate design study is included in the FY 2003-04 operating budget. Water and Wastewater utilities distributed a Request For Proposal (RFP) to perform a cost of service and rate design study. Four proposals were received from consulting firms capable of performing the cost of service and rate design study. The four firms included Black and Veatch; Reed, Stowe, & Yanke; Post, Buckley, Shuh, & Jernigan; and Raftelis. The proposals were evaluated and rated by a committee with representatives from Water and Wastewater, Utilities Administration, and Purchasing. Each proposal was evaluated using the following criteria: Agenda Information Sheet December 2, 2003 Page 2 RFP INFORMATION (CONTINUED) 1. Technical issues addressed 2. Approach to provide requested services 3. Project Team Experience 4. Consulting Firm Experience 5. Hours Required to perform the project 6. Proposed Schedule for completion 7. References Staff recommends Black and Veatch as the firm to perform the Water and Wastewater cost of service and rate design study. Their ability to address Demon's issues, experience in the industry, experience in Texas, and the project team's qualifications were major poims in staff's decision to recommend Black and Veatch. Black and Veatch's project team will consist of Larry Peart, serving as overall project manager. He will assume total project responsibility and wholesale rate responsibility. Dustin Bishop will serve as the water/wastewater rate consultant. Black & Veatch has been involved in numerous water and wastewater cost of service analyses in Texas, including the cities of Garland, Round Rock, Ft. Worth and Dallas. Under the professional services bid procedures, only the firm selected on technical merits provides a bid price. Bid prices are only solicited from other bidding firms if the selected firm and the City cannot negotiate a contract agreeable to both parties. Staff recommends the technical and financial proposal submitted by Black & Veatch. The Water and Wastewater cost of service and rate design study are scheduled for completion by mid February 2004. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) The Public Utility Board approved this item at its November 17, 2003 meeting. Approved PUB Minutes will be provided at the Council meeting. RECOMMENDATION Staff recommends award of this Professional Services Agreemem to Black and Veatch Corporation in an amount not to exceed $55,000. Agenda Information Sheet December 2, 2003 Page 3 PRINCIPAL PLACE OF BUSINESS Black and Veatch Corporation San Antonio, TX ESTIMATED SCHEDULE OF PROJECT The Water and Wastewater cost of service and rate design study are scheduled for completion by mid February 2004. FISCAL INFORMATION This project will be funded from account numbers 630001.7854 ($27,500) and 640001.7854 ($27,500). Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent 1-AlS-RFP 3091 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 CITY OF DENTON PUBLIC UTILITIES BOARD MINUTES November 17, 2003 Draft After determining that a quorum of the Public Utilities Board of the City of Demon, Texas was presem, the Public Utilities Board convened imo an Open Meeting on Monday, November 3, 2003, at 9:00 a.m. in the Service Cemer Training Room, City of Demon Service Cemer, 901-A Texas Street, Denton, Texas. PRESENT: John Baines, Bill Cheek, George Hopkins, Charldean Newell, Dick Smith and Don White (Baines and Cheek arrived late) EX OFFICIO MEMBERS Michael Conduff, City Manager Howard Martin, ACM/Utilities EXCUSED: Yolanda Guzman CONSENT AGENDA The staff recommends each of these items, and approval thereof will be strictly on the basis of the staff recommendations. Approval of the Consent Agenda authorizes the Assistant City Manager for Utilities or his designee to implement each item in accordance with the staff recommendations. Listed below are bids or purchase orders to be approved for paymem under the Consem Agenda. (Agenda Items l& 2). Detailed information is attached to each Consem Agenda item. This listing is provided on the Consem Agenda to allow Public Utilities Board Members to discuss or withdraw an item prior to approval of the Consent Agenda. 1) Consider approval of a Professional Services Agreemem with Miner & Miner Consulting Engineers, Inc. for migration of Denton Municipal Electric's Geographical Information System ("GIS") ArcFM database from version 7.2 to 8.3 in an amoum not to exceed $100,000. 2) Consider approval of a Professional Services Agreemem authorizing Black & Veatch Corporation to provide professional consulting services to perform a Water and Wastewater utility cost of service and rate design study in an amount not to exceed $55,000. No request was made to withdraw Item 1 or 2 from the Consent Agenda. Board Member George Hopkins moved to approve the consent agenda, with a second from Board Member Dick Smith. The motion was passed unanimously. Page 1 of 1 ORDINANCE NO. 2003- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH BLACK & VEATCH CORPORATION, FOR PROFESSIONAL CONSULTING SERVICES RELATING TO THE DENTON MUNICIPAL UTILITIES WATER UTILITIES COST OF SERVICE AND RATE DESIGN STUDY; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVDING AN EFFECTIVE DATE. WHEREAS, the City Council deems it in the public interest to engage Black & Veatch Corporation, a Delaware Corporation, ("B&V"), to provide professional consulting services to the City relating to the Denton Municipal Utilities water utilities cost of service and rate design study; and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the above-described specialized professional consulting services, and that limited City staff cannot adequately perform the services and tasks with its own personnel; and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act", generally provides that a City may not select a provider of professional services on the basis of competitive bids, but must select the provider on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the professional consulting services, as set forth in the Professional Services Agreement; 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 Black & Veatch Corporation, a Delaware Corporation, for professional consulting services relating to the Denton Municipal Utilities, in an amount not to exceed $55,000, as described therein, 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 B&V and the ability of B&V to perform the professional consulting 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 .,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY S:\Our Documents\Ordinances\03~Black & Veatch-PSA-DMU-Water Rate Study 2003.doc 2 STATE OFTEXAS COUNTY OFDENTON PROFESSIONAL SERVICES AGREEMENT FOR WATER UTILITIES COST OF SERVICE AND RATE DESIGN THIS AGREEMENT is made and entered into as of the day of ., 2003, by and between the City of Denton, Texas, a Texas Municipal Corporation, with its principal offices at 215 East McKinney Street, Denton, Texas 76201 (hereafter "OWNER") and Black & Veatch Corporation, a Delaware Corporation, with its offices at 14100 San Pedro, Suite 310, San Antonio, Texas 78232 (hereafter "CONSULTANT"); the parties acting herein, by and through their duly-authorized representatives and officers. WITNESSETH, that in consideration of the mutual promises, covenants, agreements herein, and in consideration of the premises, the parties hereto do mutually AGREE as follows: ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the professional services provided for herein in connection with the Project as stated in the Articles to follow, with diligence and in accordance with the professional standards customarily obtained for such services in the State of Texas. The professional services set forth herein are in connection with the following described project (the "Project"): Denton Municipal Utilities - Water Utilities Cost of Service Study and Rate Design. If during the two-year period following completion of the Services, it is shown that there is an error in the Services caused solely by CONSULTANT'S failure to meet such standards and OWNER has notified CONSULTANT in writing of any such error within that period, CONSULTANT shall re-perform, at no additional cost to OWNER, such Services within the original Scope of Services as may be necessary to remedy such error. The obligations and representations contained in this Article I are CONSULTANT'S sole warranty and guarantee obligations and OWNER'S exclusive remedy in respect of quality of the Services. EXCEPT AS PROVIDED IN THIS ARTICLE, CONSULTANT MAKES NO OTHER WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, RELATING TO CONSULTANT'S SERVICES AND CONSULTANT DISCLAIMS ANY IMPLIED WARRANTIES OR WARRANTIES IMPOSED BY LAW INCLUDING WARRANTIES OF MECHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. This Article I governs, modifies, and supersedes any other terms in this Agreement which may be construed to address warranties or guarantees or the quality of the Services. Page 1 of 12 ARTICLE I1 SCOPE OF SERVICES The CONSULTANT shall perform the following Basic Services in a professional manner: A. To perform those professional services as set forth and as described in the 9 page document entitled Exhibit A - Scope of Services, City of Denton, Texas, Municipal Utilities, Water Utility Cost of Service Study and Rate Design-which documents are collectively attached hereto as Exhibit A, which are incorporated herewith by reference. B. If any conflict arises between the terms of this Agreement and Exhibit A, the terms and conditions of this Agreement shall control over the terms and conditions of the Exhibit. ARTICLE 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 forth as provided by Article II. above, shall be later agreed-upon by OWNER and CONSULTANT, who shall determine, in writing, the scope of such additional services, the amount of compensation for such additional services, and other essential terms pertaining to the provision of such additional services by the CONSULTANT. ARTICLE IV PERIOD OF SERVICE This Agreement shall become effective upon its execution by the OWNER and the CONSULTANT, and upon the issuance of a notice to proceed by the OWNER. It shall remain in force and effect for the period that may reasonably be required for the completion of the Project, including Additional Services, if any; or until the funds provided for herein are exhausted, whichever event shall first occur; together with any required extensions approved by the OWNER. This Agreement may be sooner terminated in accordance with the provisions hereof. CONSULTANT shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule reasonably established by the OWNER, acting through its Assistant City Manager for Utilities, or his designee. ARTICLE V COMPENSATION A. COMPENSATION TERMS: "Subcontract Expense" is defined as those expenses, if any, incurred by CONSULTANT in the employment of others in outside firms, for services in the area of professional consulting, or related services. Any subcontractor or sub-consultant Page 2 of 12 billing reasonably incurred by the CONSULTANT in connection with the Project shall be invoiced to OWNER at the actual cost. "Direct Non-Labor Expense" is defined as that expense, based upon actual cost, for any out-of-pocket expense reasonably incurred by the CONSULTANT in the performance of this Agreement for long distance telephone charges, telecopy charges, messenger services, printing and reproduction expenses, out-of-pocket expenses for purchased computer time, prudently incurred travel expenses (including without limitation subsistence and lodging away from home) related to the work on the Project, and similar incidental expenses incurred in connection with the Project. B. BILLING AND PAYMENT: For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay CONSULTANT, based upon the satisfactory completion of the Basic Services tasks set forth in the Scope of Services as shown in Article II above: as follows: CONSULTANT shall perform its work on this Project in accordance with the provisions of those tasks which are set forth in Exhibit A attached hereto and incorporated herewith by reference. CONSULTANT shall bill from time sheets, on a once-monthly or longer basis, in minimum .1 (one-tenth) hour or smaller time increments, at the established hourly Billing Rates or as otherwise provided herein. For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay, at the hourly rates as shown in Exhibit A, a total fee, including reimbursement for direct non-labor expenses and for its subcontractor expense, an amount not to exceed $55,000. Partial payments to the CONSULTANT will be made monthly in accordance with the statements reflecting the actual completion of the Basic Services, rendered to and approved by the OWNER through its Assistant City Manager for Utilities, or his designee. However, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. o Nothing contained in this Article shall require the OWNER to pay for any work which is improper, as reasonably determined by its Assistant City Manager for Utilities. or his designee, or which is not submitted by CONSULTANT to the OWNER in compliance with the terms of this Agreement. The OWNER shall not be required to make any payments to the CONSULTANT at any time when the CONSULTANT is in default under this Agreement. It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the OWNER for any charge, expense or reimbursement above the not-to- exceed amount as stated hereinabove, without first having obtained the prior written authorization from the OWNER. CONSULTANT shall not proceed to perform any Page 3 of 12 services to be later provided for under Article III. "Additional Services" without first obtaining prior written authorization from the OWNER. C. ADDITIONAL SERVICES: For additional services authorized in writing by the OWNER in Article III. hereinabove, CONSULTANT shall be paid based on a to-be-agreed-upon Schedule of Charges. Payments for additional services shall be due and payable upon submission by the CONSULTANT, and shall be in accordance with the provisions of Article V.B. hereinabove. Statements for Basic Services and any Additional Services shall be submitted to OWNER no more frequently than once monthly. D. PAYMENT: If the OWNER fails to make payments due the CONSULTANT for services and expenses within thirty (30) days after receipt of the CONSULTANT'S undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of one percent (1%) per month from and after the said thirtieth (30th) day, and in addition, thereafter, the CONSULTANT may, after giving seven (7) days written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full for all amounts then due and owing, and not disputed by OWNER, for services, expenses and charges. Provided, however, nothing herein shall require the OWNER to pay the late charge of one percent (1%) per month as set forth herein, if the OWNER reasonably determines that the CONSULTANT's work is unsatisfactory, in accordance with Article V.B. of this Agreement, and OWNER has notified CONSULTANT, in writing, within thirty (30) days of receipt of the billing statement in question, of that fact in writing. E. METHOD OF PAYMENT: Payments due and owing CONSULTANT under this Agreement shall be made by check and mailed to the post office box identified in the remittance instructions on the CONSULTANT'S most recent invoice, and received by CONSULTANT no later than the payment due date. Invoice number and project name shall be referenced on the remittance advice and mailed with the check to the post office box. ARTICLE VI OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due diligence in discovering and promptly reporting to the OWNER any defects or deficiencies in the work of the CONSULTANT or any of its subcontractors or sub-consultants. ARTICLE VII OWNERSHIP OF DOCUMENTS A. All documents prepared by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to this Agreement are instruments 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 furnished by the CONSULTANT are intended only to be applicable to this Project and OWNER'S use of these documents in other projects shall be at OWNER'S sole risk and expense. In the event the OWNER uses any of the information or materials developed pursuant to this Agreement in Page 4 of 12 another project or for other purposes than specified herein, CONSULTANT is released from any and all liability relating to their use in that project. B. At all times, each party shall retain all of its rights in its drawing details, designs, specifications, databases, computer software, copyrights, trade and service marks, patents, trade secrets, and any other proprietary property. OWNER shall not use in a written prospectus or other investment memorandum, any CONSULTANT report constituting or including CONSULTANT'S professional opinion, except with CONSULTANT'S prior written consent, which shall not be unreasonably withheld. ARTICLE VIII INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the OWNER. CONSULTANT shall not have or claim any right arising from employee status. ARTICLE IX INDEMNITY AGREEMENT Notwithstanding any other provision of this Agreement, the CONSULTANT shall indemnify and save and hold harmless the OWNER and its officials, officers, agents, attorneys 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's fees incurred by the OWNER for bodily injury, death, or third-party property damage, resulting from the negligent acts or omissions of the CONSULTANT or its officers, shareholders, agents, subcontractors, subconsultants, attorneys, 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 party to this Agreement and nothing herein shall waive any of the party's defenses, 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 INSURANCE During the performance of the Services under this Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Board or any successor agency, that has a rating with A. M. Best Rate Carriers of at least an "A-" or above: mo Commercial General Liability Insurance with bodily injury limits of $1,000,000 for each occurrence and $1,000,000 in the aggregate; and with property damage limits of $100,000 for each occurrence, and $100,000 in the aggregate. Page 5 of 12 B. Automobile Liability Insurance with combined single limit of $1,000,000. 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 limits of $1,000,000 aggregate. CONSULTANT shall furnish insurance certificates to the OWNER to evidence such insurance coverage. The insurance policies (except the Worker's Compensation and Professional Liability policies) but only to the extent of the policy limits stated herein, shall name the OWNER as an additional insured on all such policies to the extent that is legally possible, and shall contain a provision that such insurance shall not be cancelled or modified without at least thirty (30) days prior written notice to OWNER and CONSULTANT. In the event of a claim, CONSULTANT shall make applicable insurance policies available for review by OWNER. CONSULTANT shall retain its rights to restrict disclosure of CONSULTANT'S proprietary information. ARTICLE XI 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. B. 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 mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the nonperformance or other reason(s), and not less than thirty (30) calendar days to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. If this Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services upon receipt of the written notice of termination from OWNER, and shall render a final bill for services to the OWNER within thirty (30) days after the date of termination. The OWNER shall pay CONSULTANT for all services properly rendered and performed, and for reimbursable expenses prior to notice of termination being received by CONSULTANT, in accordance with Article V. of this Agreement. Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information to the OWNER and to the new consultant. If applicable, OWNER shall allow CONSULTANT a reasonable time to transition and to turn over the Project to a new consultant. CONSULTANT shall turn over all documents prepared by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its files. Page 6 of 12 ARTICLE XlI RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval of the work by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, its officers, employees, agents, subcontractors, and sub-consultants for the accuracy and 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 defect in the design or other work prepared by the CONSULTANT, its principals, officers, employees, agents, subcontractors, and sub-consultants. ARTICLE XIII NOTICES All notices, communications, 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 below mailed postage prepaid, certified mail, return receipt requested, unless otherwise specified herein: To CONSULTANT: To OWNER: Black & Veatch Corporation 14100 San Pedro, Suite 310 San Antonio, Texas 78232 Attn: Mr. Larry Peart Fax: (210) 404-1370 City of Denton, Texas Denton Municipal Utilities 215 East McKinney Street Denton, Texas 76201 Attn: Gary Calmes, Utility Rate Administrator Fax: (940) 349-8120 and City of Denton, Texas City Manager 215 East McKinney Street Denton, Texas 76201 Fax: (940) 349-8596 All notices given under this Agreement shall be effective upon their actual receipt by the party to whom such notice is given. ARTICLE XIV ENTIRE AGREEMENT This Agreement consisting of twelve (12) pages and one (1) exhibit constitutes the complete and final expression of the agreement of the parties and is intended as a complete and Page 7 of 12 exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, understandings, and agreements which may have been made in connection with the subject matter of this Agreement. ARTICLE XV SEVERABILTY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement, and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement, to the extent reasonably possible, to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the original intentions of the parties respecting any such stricken provision. ARTICLE XVI COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, local laws, rules, regulations, and ordinances applicable to the work performed by CONSULTANT hereunder, as they may now read or as they may hereafter be amended. ARTICLE XVII DISCRIMINATION 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 XVIII PERSONNEL A. CONSULTANT represents that it has or will secure at its own expense all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, nor have any contractual relations with the OWNER. CONSULTANT shall immediately inform the OWNER in writing of any conflict of interest or potential conflict of interest that CONSULTANT may discover, or which may arise during the term of this Agreement. Bo All services required hereunder will be performed by CONSULTANT or under its direct supervision. All personnel engaged in performing the work provided for in this Agreement, shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. Page 8 of 12 ARTICLE XIX 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 otherwise) without the prior written consent of the OWNER. CONSULTANT shall further promptly notify 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 XX MODIFICATION 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 of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto arising out of, or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed. The parties further agree that the provisions of this Article will not be waived unless as herein set forth. ARTICLE XXI MISCELLANEOUS A. The following Exhibit is attached to, incorporated herewith by reference, and is made a part of this Agreement for all purposes pertinent: Exhibit A - Scope of Services, City of Denton, Texas, Municipal Utilities, Water Utility Cost of Service Study and Rate Design. CONSULTANT agrees that OWNER shall, until the expiration of three (3) years after the final payment made by OWNER under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of the CONSULTANT involving transactions relating to this Agreement. CONSULTANT agrees that OWNER shall have access during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space in order to conduct examinations or audits in compliance with this Article. OWNER shall give CONSULTANT reasonable advance notice of all intended examinations or audits. 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 construed in accordance with the laws of the State of Texas. D. For purposes of this Agreement, the parties agree that the Project Principal shall be Mr. Bart Foster, and the key persons who will perform most of the work as the Project Team, include the Project Manager, Mr. Larry Peart and Technical Lead, Mr. Dustin Bishop, under, and in Page 9 of 12 accordance with this Agreement, shall be as specifically identified and set forth in Exhibit A attached hereto. 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 personnel, 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 unreasonably withhold. Nothing herein shall limit CONSULTANT from using other equally qualified and competent members of its firm 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, and in a sound, economical, efficient manner, and in accordance with the provisions hereof in accomplishing the Project, 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 CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project, and arranging for the access thereof. CONSULTANT may rely on such information, and OWNER shall make all provisions for the CONSULTANT to enter in or upon, public and private property as required for the CONSULTANT to perform professional services under this Agreement. OWNER and CONSULTANT agree that CONSULTANT is entitled to rely upon information furnished to it by OWNER without the need for further inquiry or investigation into such information. G. The captions of this Agreement are for informational purposes only and shall not in any way affect the substantive terms or conditions of this Agreement. H. Neither party shall be liable to the other party for loss of profits or revenue; loss of use: loss of opportunity; loss of goodwill; cost of substitute facilities, goods or services: cost of capital; cost of replacement power; governmental and regulatory sanctions; and claims of customers for such damages; or for any special, consequential, incidental, indirect or exemplary damages whether a claim for any such loss arises out of breach of contract, warranty, tort (including negligence), strict liability, indemnity, or another theory. Except for an obligation to make payments, neither party shall be in default to the extent any nonperformance is caused by a circumstance beyond such party's reasonable control. The warranties, obligations, liabilities and remedies of the parties, as provided herein, are exclusive and in lieu of any others available at law or in equity. CONSULTANT'S total aggregate liability under this Agreement shall not exceed the compensation received by CONSULTANT under this Agreement. To the fullest extent allowed by law, releases from, and limitations of liability shall apply notwithstanding the breach of contract, tort, including negligence, strict liability or other theory of legal liability of the party released or whose liability is limited. CONSULTANT may subcontract portions of the Services to its related entities. Page 10 of 12 Since CONSULTANT has no control over the cost of labor, materials, or equipment furnished by others, or over the resources provided by others to meet Project schedules, CONSULTANT'S opinion of probable costs and of Project schedules shall be made on the basis of experience and qualifications as a professional consultant. CONSULTANT does not guarantee that proposals, bids, or actual Project costs of other contractors will not vary from CONSULTANT'S cost estimates or that actual schedules of other contractors will not vary from CONSULTANT'S projected schedules. IN WITNESS WHEREOF, the OWNER, the City of Denton, Texas has executed this Agreement in four (4) original counterparts, by and through its duly authorized City Manager; and CONSULTANT has executed this Agreement by and through its duly authorized undersigned officer on this the __ day of ,2003. "OWNER" CITY OF DENTON, TEXAS A Texas Municipal Corporation Michael A. Conduff, City,~na~r ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: Page 11 of 12 ATTEST: "CONSULTANT" BLACK & VEATCH CORPORATION A Delaware Corporation Rodger F~Sm±th President, Enterprise Consulting Division By: M. ~y~n' Hartman Page 12 of 12 EXHIBIT A - SCOPE OF SERVICES Task 1 - Project Initiation Subtask 1.1 - Data Collection At the initiation of the project, we will visit Denton's offices to collecl and review basic financial and statistical data provided by the Utility to include historical and current financial information, reports by others, and operating and capital budgets. Where possible, financial data will be reviewed in its current form and/or collected in an electronic format to avoid duplication of effort with regard to data entry and to ensure data accuracy. Specific subtasks will include: Data Request We will furnish the Utility with a list of basic data needed to conduct the study. The list will detail requests for: customer information by service area, background information on current billing policies, financial and operating data, historical customer account and billing records, reports by others, audits, budgets, fixed asset records, bond prospectuses, debt service schedules, and ordinances. Review and Evaluation of Basic Data We will meet with Utility administrative and financial staff and review all data received in detail to ensure its completeness and our understanding of historical water and wastewater operations and requirements reflected therein. Supplemental Data Request As the study progresses after initial data is reviewed, we may submit requests for additional data and/or seek clarification of initial information received, as necessary. Task 2 - Water Utilities Cost of Service Subtask 2.1 - Commodity Volume and Financial Forecasting Review The Utility's current methodologies used to forecast billable volume and revenues will be examined in depth for the proposed budget year and the general methodology used for future planning years will be reviewed. We will determine if the existing methodologies are economically sound and recommend improvements as deemed necessary. · Billable Volume Forecast We will review the Utility's current billable volume forecast to verify that the assumptions used in the forecast are sound in design and adequately take into account past customer growth, normalized consumption, and economic activity. · Revenue Forecast Analysis We will review and recommend improvements to the Utility's current methodology used to forecast revenues. We will verify that the Utility's approach to project future sales and associated revenues under current rate levels are based upon historical and projected growth of customers and usage characteristics. Revenue Requirements Analysis Methodologies used to develop operations and maintenance expense, routine capital replacement expenditures, the capital improvement program and financing plan and Black & Veatch Page · 1 EXHIBIT A - SCOPE OF SERVICES debt service expense will be reviewed and improvements recommended to ensure that the Utility is accurately forecasting its revenue requirements. Revenue Adequacy and Indicated Adjustments We will prepare an analysis summarizing the above revenues and revenue requirements to determine the adequacy of revenues under existing rate levels and the validity of any proposed revenue adjustments. Separate income statements will be prepared for each of the water and wastewater utilities which will indicate any needed revenue adjustments. Subtask 2.2 - Wholesale and Retail Water and Wastewater Cost of Service Fiscal year (FY) 2004 will be used for the purpose of conducting cost allocations for the wholesale water and wastewater customer classifications. The data for test year (FY) 2004 will be obtained from (FY) 2002-2003 actual data and adjusted to include any known or verifiable changes. The retail water and wastewater cost of service will be completed in concurrence with the wholesale cost of service. The test years FY 2004 - FY 2008 will be used to develop rates for retail water and wastewater service. The cost of service to be recovered from the wholesale customer class will be calculated on the utility basis while the retail cost of service will be developed using the cash basis methodology. Separate water and wastewater costs of service to be recovered equate revenue under existing rates plus the recommended overall revenue increase for each utility system. Costs of service will be determined for the various customer classes and types of service provided by the Utility. Subtask 2.3 - Determination of Customer Classes Cost of service will be allocated to groups of customers with similar service requirements and contractual requirements. Customers are typically grouped into residential, commercial, industrial, high volume and high strength users, inside/outside city customers, and wholesale groups. Additional classification can be applied to recognize specific characteristics as deemed necessary by utility management. We will: Determine Appropriate Customer Classes Review the existing customer class designations to determine appropriateness and equitability and recommend to the Utility any revised and/or new customer class designations, as needed. Estimate Customer Class Characteristics Estimate usage and billing characteristics of each customer class and type of service. The characteristics include total annual water use, ratio of peak to average rates of use, wastewater pollutant characteristics, responsibility for infiltration and inflow in the sewer system, and customer billing requirements. Estimates of class loading will be based on bill tabulation data, system operating statistics, available special studies, and our judgment and experience. Black & Veatch Page · 2 EXHIBIT A - SCOPE OF SERVICES Subtask 2.4 - Allocation of Costs of Service Costs of service, or revenue requirements to be met from water and wastewater utility service rates, will be first allocated to functional cost components to provide a basis for subsequent allocations to customer classes, which will recognize estimates of each class' service requirements. Class allocations will be compared to estimates of corresponding class revenues under existing rates to identify relative adjustments by class, and in total for the utility systems, to align revenues with allocated costs. This process will Our considerable utility system design experience recognize existing wholesale contractual provides a basis for d~termining which parameters requirements, accepted water (AWWA) should be usod for assigning costs to water and wastewater functional components. This combined and wastewater (WEF)industry rate- engineering and financial expertise uniquely making standards, and will comply with qualifies us to determine appropriate cost all applicable State and Federal allocations and to explain the rationale behind regulatory requirements, study findings to the public and policy makers. Functional Cost Allocations We will allocate costs of service to various cost components that constitute functional classifications of the types of service each utility is required to provide. The development of functional cost allocations will recognize cost-causative factors including annual and peak rates of water use; wastewater volume, capacity, and strengths for sewer allocations; and service delivery considerations for any specific customer classes. We have conducted field investigations of customer class service characteristics across the nation, which provide us with the expertise to make appropriate estimates for the Utility systems. Development of Customer Class Units of Service We will estimate customer class service characteristics (use, demand, strengths, etc.) associated with each of the functional cost elements recognizing the bill distribution analysis, applicable data available in Utility records, engineering judgment about customer class service requirements, and experience with other utility operations with similar usage characteristics and patterns. Allocation of Costs to Customer Classes We will distribute costs by functional component to customer classes using unit costs of service applicable to all system users and class units of service to determine each class' proportional responsibility for total system costs. The relative responsibility of each class of utility customers will be specifically determined based on each class' or users' estimated service requirements. 1 Subtask 2.4 is critical to the study if the 1 Utility is to be placed in a defensible position for determining "who should pay" for utility service and for justifying recommended changes in cost recovery by class. Determination of Revenue Adequacy by Customer Class We will prepare a comparison of class revenues under existing utility rates with allocated class costs of service to determine the level of cost recovery by class and in total, and to demonstrate any needed adjustments to align class revenues and allocated costs. Black & Veatch Page · 3 EXHIBIT A - SCOPE OF SERVICES Subtask 2.5 - Management Accounting Documentation and Processes We will review the Utility's revenues, expenses, and cost accounting documentation. This task will examine the Utility's processes for generating the adequate financial information, current accounting, and financial processes to support the departmental financial and project cost information. We will also review and provide written comments about the Utility's monthly standard and "ad hoc" reports. The review and comments will detail the value and appropriateness of such reports and recommend any additional reports that would enhance the management reporting process. Task 3- Wholesale and Reta/I Water and Wastewater Rate Des/gn Subtask 3.1 - Review of Existing Rate Methodologies The purpose of this task will be to analyze the current rate methodologies used for the wholesale and retail customer classes in order to gain an understanding of the existing cost recovery mechanisms of the Utility. Specific subtasks of this analysis will include: Review of Existing Rate Methodologies We will conduct a review of the current methodologies the Utility uses to develop rates and charges for water and wastewater service. This review will include discussions with utility management regarding rate policy issues and as applicable, review of contractual provisions with entities that receive utility service from Denton. This review will form the foundation for assessing the adequacy of the existing methodologies to equitably recover cost of service as developed in subsequent tasks, and to determine that the existing customer classes used are satisfactory. Identify and Evaluate Alternative Rate Structures Review of the existing rates will form the initial basis for identifying alternative rate structures and practices that the City of Denton may wish to consider in the formulation of new rates. The general guidelines for evaluating utility rates include the following: - Rate schedules should be clear and readily understood. - Rates should be designed to allow recovery of the cost of providing service. - Rates should reflect the cost of service by customer classification. - Rates should be competitive with other regional utilities. - Rates should promote revenue stability. Recommendations will be developed with consideration to the above guidelines consistent with management goals and policies. Subtask 3.2 - Wholesale Rate Design The purpose of this task will be to develop wholesale water and wastewater rates to recover their respective cost of service. Wholesale water rates will be designed to include a facility charge, a volume charge, and annual demand charge per unit of peak day usage. Wholesale wastewater rates will be designed to incorporate a facility and a volume charge. We will hold discussions with management to understand and determine how the wastewater pretreatment program charges and sampling and analysis charges are to be recovered. Black & Veatch Page · 4 EXHIBIT A - SCOPE OF SERVICES Subtask 3.3 - Retail Rate Design Schedules of rates and charges will be developed for each utility, which recover the costs of service from each customer class for the test year within practical limits. Specific subtasks will include: Determination of Revenue to be Generated by Rates. Revenue to be recovered from rate structures This is the first key element of a three- will reflect the total cost of service by customer part evaluation of rate impacts on class, customers served by the Utilities Development of Water and Wastewater Rates We will develop a schedule of rates and charges that equitably and efficiently recover total revenue requirements. In addition, we will recommend rates that are competitive for each respective customer class and will include a multi-year phase in approach in the case of a large rate increases. Specific issues to be addressed include: Water Utility Rate structure or form Minimum volume allowances Consumption block thresholds Inside/Outside customers Wholesale customers Fire Protection Charges Customer class subsidization Wastewater Utility Rate structure or form Minimum volume allowances Applicability of charges Infiltration/inflow recovery Inside/Outside customers Excess Strength Sumharges Wholesale customers Customer class subsidization Water Irrigation Rates We will review and recommend a methodology for the possible implementation of irrigation rates for the residential and commercial classifications. In the development of an irrigation rate we will take into account system demand and the impact of irrigation rates on Denton's water supply. Water and Wastewater Facility Charges The Utility's current facility charge will be reviewed and a methodology will be developed to charge all customers regardless of classification the same charge based upon their meter size. During this analysis we will also identify the pros and cons of establishing a volume allowance in the facility charge for the retail customer class. Commercial Water Rate Block Methodology An analysis will performed for the appropriateness of implementing an inverted rate block structure for commercial customers. We will provide an analysis on the positives and negatives on the use of inverted rates for the commercial class and identify specific customer groups the inverted rate structure might be appropriate. Commercial Wastewater Billed Volume Methodology We will analyze the methodology the Utility uses to determine commercial billable wastewater volume. We will provide written recommendations and survey how other utilities bill their commercial wastewater customers. Black & Veatch Page · 5 EXHIBIT A - SCOPE OF SERVICES Subtask 3.4 - Determination of Customer Impacts Proposed Rate Revenue Adequacy We will compare revenues expected from each customer class under proposed rates with the cost of service to be recovered from individual customer classes and for the water and wastewater systems in general to determine theft adequacy. This is the second key element of a three-part evaluation of rate impacts on customers served by the Utility. Typical Bill Comparison We will prepare comparisons of typical bills under existing and proposed rates for each customer class under various levels of water usage and meter sizes for water and wastewater customers. This is the third key element of a three-part evaluation of rate impacts on customers served by the Utility, The selected class usage levels by meter size will reflect the bill distribution in order to better demonstrate rate impacts on the majority of customer accounts in each class rather than using arbitrarily chosen allowances. Task 4 - Computer Cost of Service and Rate Design Model Subtask 4.1 - Provide Computer Rate Model We have the expertise to develop spreadsheet analyses that model established cost of service and rate design procedures. These analyses become part of a personal computer based cost of service and rate design model that enables each utility to periodically revise and update studies and projections of the cost modifications, and the design of adequate rates framework will be specifically tailored and designed to recognize the unique needs of the Utility, its' characteristics and information base. The model will incorporate required features necessary to permit continuing, user-friendly, "in- house" application by utility staff. The financial planning and rate model development task will include the following: of service analyses, user charge on a routine basis. Our model's '1 Our extensive history with financial · model development will provide the I knowledge base to efficiently and effectively create a model that will accommodate those characteristics unique to the City of Denton. Model Features · Automated ability to change study periods and retain relative information so that it can be used on an annual basis by utility staff. · Specifically tailored and designed to recognize the unique needs, characteristics, and the information base of the utility, including compatibility with the utility's budgetary and accounting systems. · Ability to readily assess impact on cost of service allocations to user classes, user charges, and utility rates of alternative management decisions. · Capability to independently design and develop utility rates and charges on an annual basis, thus permitting staff to examine the phase-in of needed rate adjustments over a period of time. Black & Veatch Page · 6 EXHIBIT A - SCOPE OF SERVICES The model tests revenue generation by class and in total for proposed rates and indicates impacts on customers served through a typical monthly bill analysis. Incorporation of advanced programming features to automate basic procedures such as initializing the rate model for a new budget year, printing, transferring data files into the rate model, setting-up screens for analyses, and navigating throughout the rate model. Subtask 4.2 - Provide Computer Rate Model Training We will provide one (1) training session that will be conducted at the City's offices. The training session will orient City staff members in the use of the water and wastewater model. Task 5- Report and Meetings Subtask 5.1 - Report Preparation & Deliverables A comprehensive report will be developed which explains the study approach, key assumptions, and the findings and recommendations for both utilities. The report will be submitted in draft form for review by Utility representatives before a final report is published and delivered. Specific subtasks will include: Draft Report Preparation We will prepare the draft report covering development of revenue requirements, cost of service analyses, rate design findings, and recommendations. This draft report will be available for the Utility's review and approval. We will make every reasonable effort to accommodate any recommendations and minor revisions requested by the Utility as a result of the review process. Final Report Preparation Based on review comments received, we will revise the draft report and deliver 15 copies of the final report to the Utility. Study Documentation At the completion of the project, all data developed in electronic format will be fumished in Microsoft Office format suitable for the Utility to use and document study procedures, assumptions, and findings. Subtask 5.2 - Meetings & Presentations We will meet with Utility representatives to gather data and information, discuss study progress, report on interim findings, and present our final findings and recommendations to the Public Utilities Board and the City of Denton City Council. These meetings will be conducted in a workshop format to encourage an active exchange of information by all participants and provide a basis for complete understanding of relevant issues. Meetings will include: Black & Veatch Page · 7 EXHIBIT A - SCOPE OF SERVICES · Utility Staff Meetings Attend three (3) meetings with Utility representatives during the course of the study to gather data, review preliminary findings, discuss alternatives, and reach consensus on recommendations for presentation to the governing body. · Presentation to the Public Utilities Board Meet with the members of the Public Utilities Board to discuss the results of the wholesale water and wastewater cost of service and rate design. Comments received from this meeting will be incorporated into the final results of wholesale water and wastewater cost of service and rate design. Presentation to the City of Denton, Texas City Council Meet with the City Manager, Mayor and Council of the City of Denton, Texas to present final results of the study's findings and recommendations. It is anticipated that one City Council meeting will be held. A Power Point presentation will be used to present this information in summary form. Task 6- Add/t/onal Serv/ces Subtask 6.1 - Expert Testimony We are prepared to defend and provide testimony on the development of water and wastewater costs and rates if they are challenged by wholesale customers. Standard billing rates will be applicable for these services, project team members billing rates can be found in the cost proposal section. Black & Veatch Page · 8 EXHIBIT A - SCOPE OF SERVICES Key B/ack & Veatcb Corporation Employees Project Principal - Bart Foster, Vice President Project Manager - Larry Peart, Senior Consultant Technical Lead - Dustin Bishop, Senior Associate Technical Advisor - Rowe McKinley, Director Standard B/ll/ng Flates Job Description Hourly Billing Rates (S/hr) Clerical/Administrative Support 60.00 Associate 80.00 Senior Associate 110.00 Consultant 140.00 Senior Consultant 175.00 Principal Consultant 215.00 Director 250.00 Vice President 300.00 Black & Veatch Page · 9 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: December 2, 2003 Materials Management Kathy DuBose, Fiscal and Municipal Services Questions concerning this acquisition may be directed to Sharon Mays 349- 8487 SUBJECT Consider adoption of an Ordinance of the City Council of the City of Denton, Texas authorizing the City Manager to execute a Professional Services Agreement with Miner & Miner Consulting Engineers, Inc. for professional engineering services relating to migrating the existing Denton Municipal Electric Geographic Information System ("GIS") database from ARCFM version 7.2 to ARCFM version 8.3; authorizing the expenditure of funds therefore; and providing an effective date (File 3114-in an amount not to exceed $100,000). FILE INFORMATION DME must maintain records and maps for the electric system installed equipment. A geographic information/facilities management system (referred to as "GIS") was the method chosen by the City more than ten years ago. GIS software assists electric utilities in increasing productivity, and improving services by effectively managing spatial data. ESRI was selected as the base system, and the companion Miner & Miner electrical specialty line was selected for the electric system data application. The Engineering Department for the City maintains all of the land base data (streets, parcels, addresses, etc.), and other departments add information through additional specialty software application packages, similar to the Miner & Miner ArcFM electrical software, to manage data for their own unique applications (e.g. water or electric). Approximately three years ago, ESRI and Miner & Miner made a major change in the structure of the database required for the electric system software in response to demands within the industry to increase capabilities, to improve performance and to facilitate data transfer between different types of software packages. Because of the cost and manpower required to make the change, DME has not undertaken the upgrade. Technology advancements make it imperative that the change be made at this time. Improvements in functionality make it advantageous and it will improve staff efficiency through improved access and interface to electric data, file structure and reporting capabilities. Both DME and the City of Denton Technology Services Department have recognized that the GIS migration to the more modem and current platform will result in increased system stability, provide a more robust system environment and allow improved data connectivity across the network. Agenda Information Sheet December 2, 2003 Page 2 FILE INFORMATION (CONTINUED) With cost pressures on every segment of industry, Miner & Miner has taken advantage of years of experience and improvements in related software to offer a standardized package that is currently used at other rural electric cooperatives and municipally owned electric utility companies. Because Miner & Miner's standardized package is pre-configured and ready to use as is, utilities such as Co-Serv in Corinth and Kissimmee Utility Authority in Florida have both just finished deploying a fully functioning enterprise GIS system in less than three months. Miner & Miner ArcFM standardized solution's open architecture will provide DME the flexibility to meet its current business needs while providing an industry recognized tool for planning for the future. This migration and database conversion will organize DME's data into a standardized compliant model that will allow key data integration with other standardized compliant third party software. The GIS tool presently allows DME the capability to run database queries on the electric system infrastructure and create engineering and operational maps. This upgrade leads to the next logical step of using GIS data to assist with financial fixed asset accounting, distribution engineering analysis and outage management tracking and reporting. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) The Public Utility Board approved this item on November 17, 2003. Approved PUB minutes will be provided at the Council meeting. RECOMMENDATION We recommend award of this item to Miner & Miner Consulting Engineers in an amount not to exceed $100,000. PRINCIPAL PLACE OF BUSINESS Miner & Miner Consulting Engineers Fort Collins, CO ESTIMATED SCHEDULE OF PROJECT This project is scheduled to begin December 2003 with a completion date of April 2004. Agenda Information Sheet December 2, 2003 Page 3 FISCAL INFORMATION This project will be funded from account 600500.7854.5880. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent 1-AlS-File 3114 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 CITY OF DENTON PUBLIC UTILITIES BOARD MINUTES November 17, 2003 Draft After determining that a quorum of the Public Utilities Board of the City of Demon, Texas was presem, the Public Utilities Board convened imo an Open Meeting on Monday, November 3, 2003, at 9:00 a.m. in the Service Cemer Training Room, City of Demon Service Cemer, 901-A Texas Street, Denton, Texas. PRESENT: John Baines, Bill Cheek, George Hopkins, Charldean Newell, Dick Smith and Don White (Baines and Cheek arrived late) EX OFFICIO MEMBERS Michael Conduff, City Manager Howard Martin, ACM/Utilities EXCUSED: Yolanda Guzman CONSENT AGENDA The staff recommends each of these items, and approval thereof will be strictly on the basis of the staff recommendations. Approval of the Consent Agenda authorizes the Assistant City Manager for Utilities or his designee to implement each item in accordance with the staff recommendations. Listed below are bids or purchase orders to be approved for paymem under the Consem Agenda. (Agenda Items l& 2). Detailed information is attached to each Consem Agenda item. This listing is provided on the Consem Agenda to allow Public Utilities Board Members to discuss or withdraw an item prior to approval of the Consent Agenda. 1) Consider approval of a Professional Services Agreemem with Miner & Miner Consulting Engineers, Inc. for migration of Denton Municipal Electric's Geographical Information System ("GIS") ArcFM database from version 7.2 to 8.3 in an amoum not to exceed $100,000. 2) Consider approval of a Professional Services Agreemem authorizing Black & Veatch Corporation to provide professional consulting services to perform a Water and Wastewater utility cost of service and rate design study in an amount not to exceed $55,000. No request was made to withdraw Item 1 or 2 from the Consent Agenda. Board Member George Hopkins moved to approve the consent agenda, with a second from Board Member Dick Smith. The motion was passed unanimously. Page 1 of 1 ORDINANCE NO. 2003- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH MINER & MINER CONSULTING ENGINEERS, INC. FOR PROFESSIONAL ENGINEERING SERVICES RELATING TO MIGRATING THE EXISTING DENTON MLJNICIPAL ELECTRIC GEOGRAPHIC INFORMATION SYSTEM ("GIS") DATABASE FROM ARCFM VERSION 7.2 TO ARCFM VERSION 8.3; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council deems it in the public interest to engage the firm of Miner & Miner Consulting Engineers, Inc., a Colorado Corporation, of Fort Collins, Colorado ("Miner"), to provide professional engineering services to the City relating to the Denton Municipal Electric utility ("DME"), including, without limitation, migrating the existing Denton Municipal Electric GIS database from ArcFM version 7.2 to ArcFM version 8.3; and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the above-described specialized professional engineering services, and that limited City staff cannot adequately perform the services and tasks with its own personnel; and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act", generally provides that a City may not select a provider of professional services on the basis of competitive bids, but must select the provider on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the professional engineering services, as set forth in the Professional Services Agreement; 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 Miner & Miner Consulting Engineers, Inc., a Colorado Corporation, of Fort Collins, Colorado, for professional engineering services relating to Denton Municipal Electric Utility, as described therein, 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 Miner and the ability of Miner to perform the professional engineering 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 ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: S:\Our Documents\Ordinances\03Wliner & Miner Consulting Engineers-PSA-DME-2003.doc STATE OF TEXAS COUNTY OF DENTON PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into as of the day of , 2003, by and between the City of Denton, Texas, a Texas Municipal Corporation, with its principal offices at 215 East McKinney Street, Denton, Texas 76201 (hereafter "OWNER") and Miner & Miner Consulting Engineers, Inc., a Colorado Corporation, with its offices at 4701 Royal Vista Circle, Fort Collins, Colorado 80528 (hereafter "CONSULTANT"); the parties acting herein, by and through their duly-authorized representatives and officers. WITNESSETH, that in consideration of the mutual promises, covenants, agreements herein, and in consideration of the premises, the parties hereto do mutually AGREE as follows: ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the professional services provided for herein in connection with the Project as stated in the Articles to follow, with diligence and in accordance with the professional standards customarily obtained for such services in the State of Texas. The professional services set forth herein are in connection with the following described project (the "Project"): Provide the City of Denton, Texas (Denton Municipal Electric) professional engineering services pertaining to migrating the DME existing Geographical Information System ("GIS") database from ArcFM version 7.2 to 8.3, including without limitation, working model roll-out, implementation, de-bugging, training and support as set forth in Exhibit "A" attached hereto and incorporated herewith by reference. The Project shall include conceptual design, development and deployment of a model to support MultiSpeak 2.2 compliance for ArcFM. OWNER can request the CONSULTANT adapt the model to utilize existing DME hardware, software and data. CONSULTANT has estimated $75,092 for the implementation of the model to support MultiSpeak as outlined in Exhibit A- Scope of Work. Under this agreement an additional $24,908 worth of effort and expenses of CONSULTANT is targeted for data model changes and/or other tasks as defined by OWNER. All efforts above and beyond the work defined to install and setup a working MultiSpeak 2.2 compliant ArcFM model shall be considered Additional Services as structured in Article III and Article V paragraph C. Documentation and progress reports to DME will be required from the CONSULTANT. Page 1 of 13 ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following Basic Services in a professional manner: A. To perform those professional services as set forth in the CONSULTANT's "Executive Summary" (the "Proposal"), which is a one (1) page letter; utilizing the "ArcGIS/ArcFM for the City of Denton Scope of Work", dated October 23, 2003, which is a seven page document; and utilizing the "ArcFM MultiSpeak Implementation Plan" shown on the Gant Chart provided by Jeff B. Meyers, Strategic Account Manager, to Brent A. Heath, P.E., Senior Engineer, Denton Municipal Electric, dated October 21, 2003, which documents are collectively attached hereto as Exhibit "A," and are incorporated herewith by reference. B. If there is any conflict, or if any conflict arises between the terms of this Agreement and Exhibit "A," the terms and conditions of this Agreement shall control over the terms and conditions of the Exhibit. ARTICLE 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 forth as provided by Article II. above, shall be later agreed-upon by OWNER and CONSULTANT, who shall determine, in writing, the scope of such additional services, the amount of compensation for such additional services, and other essential terms pertaining to the provision of such additional services by the CONSULTANT. ARTICLE IV PERIOD OF SERVICE This Agreement shall become effective upon its execution by the OWNER and the CONSULTANT, and upon the issuance of a notice to proceed by the OWNER, and shall remain in force and effect for the period that may reasonably be required for the completion of the Project, including Additional Services, if any; or until the funds provided for herein are exhausted; and any required extensions approved by the OWNER. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in this Agreement. CONSULTANT shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule reasonably established by the OWNER, acting through its Assistant City Manager for Utilities, or his designee. Page 2 of 13 ARTICLE V COMPENSATION A. COMPENSATION TERMS: "Subcontract Expense" is defined as those expenses, if any, incurred by CONSULTANT in the employment of others in outside firms, for services in the area of professional engineering, or related services. Any subcontractor or sub-consultant billing reasonably incurred by the CONSULTANT in connection with the Project 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 any out-of-pocket expense reasonably incurred by the CONSULTANT in the performance of this Agreement for long distance telephone charges, telecopy charges, messenger services, printing and reproduction expenses, out-of-pocket expenses for purchased computer time, prudently incurred travel expenses related to the work on the Project, and similar incidental expenses incurred in connection with the Project. B. BILLING AND PAYMENT: For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay CONSULTANT, based upon the satisfactory completion of the Basic Services tasks set forth in the Scope of Services as shown in Article II above; as follows: CONSULTANT shall perform its work on this Project in accordance with the provisions of those tasks which are described and as set forth in the "Proposal to Provide Professional Engineering Services" attached hereto as Exhibit "A" and incorporated herewith by reference. CONSULTANT shall bill from time sheets, on a once-monthly or longer basis, in minimum .1 (one-tenth) hour or smaller time increments, at the hourly Billing Rates or as otherwise provided. For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay, at an hourly rate as shown in Exhibit "A", a total fee, including reimbursement for direct non- labor expenses and for its subcontractor expense, an amount not to exceed $100,000. Partial payments to the CONSULTANT will be made monthly in accordance with the statements reflecting the actual completion of the Basic Services, rendered to and approved by the OWNER through its Assistant City Manager for Utilities, or his designee. However, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. The OWNER may withhold thirty (30%) percent payment from each monthly invoice until satisfactory completion of the fully working and operational Project by the CONSULTANT per the successful completion of the data migration and configuration test and acceptance plan completed during the ArcFM deployment phase listed in Scope of Work Section 1.3.2. Page 3 of 13 Nothing contained in this Article shall require the OWNER to pay for any work which is not meeting the requirements of the Scope of Work included in Attachment A as reasonably determined by its Assistant City Manager for Utilities, or his designee, or which is not submitted by CONSULTANT to the OWNER in compliance with the terms of this Agreement. The OWNER shall not be required to make any payments to the CONSULTANT at any time when the CONSULTANT is in default under this Agreement. It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the OWNER for any charge, expense or reimbursement above the not-to- exceed amount as stated hereinabove, without first having obtained the prior written authorization from the OWNER. CONSULTANT shall not proceed to perform any services to be later provided for under Article III. "Additional Services" without first obtaining prior written authorization from the OWNER. ADDITIONAL SERVICES: For additional services authorized in writing by the OWNER in Article III. hereinabove, CONSULTANT shall be paid based on a to-be-agreed-upon Schedule of Charges as shown in Exhibit A - Scope of Work Section 1.4. Payments for additional services shall be due and payable upon submission by the CONSULTANT, and shall be in accordance with Article V.B. hereinabove. Statements for Basic Services and any Additional Services shall be submitted to OWNER no more frequently than once monthly. D. PAYMENT: If the OWNER fails to make payments due the CONSULTANT for services and expenses within forty-five (45) days after receipt of the CONSULTANT'S undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of one percent (1%) per month from and after the said forty-fifth (45th) day, and in addition, thereafter, 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 for all amounts then due and owing, and not disputed by OWNER, for services, expenses and charges. Provided, however, nothing herein shall require the OWNER to pay the late charge of one percent (1%) per month as set forth herein, if the OWNER reasonably determines that the CONSULTANT's work is unsatisfactory, in accordance with Article V.B. of this Agreement, and OWNER has notified CONSULTANT of that fact in writing. All prices are based on CONSULTANT standards for software and services, and do not include shipping, handling or taxes. OWNER shall make a payment to CONSULTANT for the allowable costs invoiced no later than 45 days after receipt of each invoice by OWNER. OWNER agrees to notify CONSULTANT within 15 working days of receipt of invoice if preliminary acceptance for payment has not been authorized. ARTICLE VI OBSERVATION AND REVIEW OF THE WORK Page 4 of 13 A. The CONSULTANT will exercise reasonable care and due diligence in discovering and promptly reporting to the OWNER any defects or deficiencies in the work of the CONSULTANT or any of its subcontractors or sub-consultants. B. All deliverables submitted to the OWNER shall be reviewed and checked within two weeks of delivery. Deliverables are outlined in Exhibit A - Scope of Work and include completed work (documents, services, code, etc.) provided to OWNER for review. The CONSULTANT shall be notified in writing of any pending delays in the review periods. C. All reviews will be performed on the basis of work correctness and compliance with the contract. The OWNER reserves the right to return for correction within these approximate review periods any and all products that are in error or have not been prepared within the scope of work; unless otherwise notified in writing, these corrections will be incorporated in another work task submittal. D. The correction procedures of CONSULTANT shall not affect the overall production schedule. Once a final acceptance is given on any deliverable product, any further modifications required of CONSULTANT for that accepted product shall be considered Additional Services per Article III and shall be billable at appropriate current hourly rates. E. OWNER must exercise due diligence and shall ensure that factors beyond the control of the CONSULTANT, such as OWNER delays and failure to fulfill OWNER responsibilities, shall not interfere with CONSULTANT'S ability to complete the services. OWNER shall notify CONSULTANT of any such factors that may cause delays in the completion of tasks or changes to the scope of work, and both parties will mutually determine required modifications to this Agreement. F. At the conclusion of project acceptance, CONSULTANT will request that OWNER sign an acceptance certificate. OWNER'S production use of any given application prior to receipt of an acceptance certificate shall constitute acceptance on part of the OWNER. Production use shall be defined per the ArcFM deployment phase listed in Scope of Work Section 1.3.2. ARTICLE VII OWNERSHIP OF DOCUMENTS All documents prepared or fumished by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to this Agreement are instruments 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 furnished by the CONSULTANT are intended only to be applicable to this Project and OWNER'S use of these documents in other projects shall be at OWNER'S sole risk and expense. In the event the OWNER uses the Agreement in another project or for other purposes than specified herein any of the information or materials developed pursuant to this Agreement, CONSULTANT is released from any and all liability relating to their use in that project. Page 5 of 13 ARTICLE VIII INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the OWNER. CONSULTANT shall not have or claim any right arising from employee status. ARTICLE IX INDEMNITY AGREEMENT A. The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officials, officers, agents, attorneys and employees from and against any and all liability, claims, demands, damages, losses and expenses, including but not limited to court costs and reasonable attorney fees incurred by the OWNER, and including without limitation damages for bodily and personal injury, death, or property damage, resulting from the negligent acts or omissions of the CONSULTANT or its officers, shareholders, agents, subcontractors, subconsultants, attorneys, and/or employees in the execution, operation, or performance of this Agreement. B. The OWNER, to the extent provided by applicable law, shall indemnify and save and hold harmless the CONSULTANT and its officials, officers, agents, attorneys 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 CONSULTANT, and including without limitation damages for bodily and personal injury, death, or property damage, resulting from the negligent acts or omissions of the OWNER or its officers, shareholders, agents, subcontractors, subconsultants, attorneys, and/or employees in the execution, operation, or performance of this Agreement. C. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement and nothing herein shall waive any of the party's defenses, 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 INSURANCE During the performance of the Services under this Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Board or any successor agency, that has a rating with A. M. Best Rate Carders of at least an "A-" or above: Page 6 of 13 A. Comprehensive General Liability Insurance with bodily injury 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 than $100,000 for 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 each 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 limits of not less than $1,000,000 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 possible, and shall contain a provision 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, the CONSULTANT shall, prior to the effective date of the change or cancellation of coverage, deliver copies of any such substitute policies, furnishing at least the same policy limits and coverage, to OWNER. ARTICLE XI ARBITRATION AND ALTERNATE DISPUTE RESOLUTION 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 XlI 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. B. 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 mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the nonperformance or other reason(s), and not less than thirty (30) calendar days to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. Page 7 of 13 Co If this Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services upon receipt of the written notice of termination from OWNER, and shall render a final bill for services to the OWNER within twenty (20) days after the date of termination. The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed, and for reimbursable expenses prior to notice of termination being received by CONSULTANT, in accordance with Article V. of this Agreement. Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information to the OWNER and to the new consultant. If applicable, OWNER shall allow CONSULTANT a reasonable time to transition and to turn over the Project to a new consultant. CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its files. ARTICLE XlII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval of the work by the OWNER shall not constitute, nor be deemed a release of the liability of the CONSULTANT, its officers, employees, agents, subcontractors, and sub- consultants for the accuracy and 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 liability by the OWNER for any defect in the design or other work prepared by the CONSULTANT, its principals, officers, employees, agents, subcontractors, and sub-consultants. ARTICLE XIV NOTICES All notices, communications, 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 below, postage prepaid, certified mail, return receipt requested, unless otherwise specified herein: To CONSULTANT: To OWNER: Miner & Miner Consulting Engineers, Inc. 4701 Royal Vista Circle Fort Collins, Colorado 80528 Attn: JeffB. Meyers Fax: (970) 223-5577 City of Denton, Texas Denton Municipal Electric 901-A Texas Street Denton, Texas 76209 Attn: Brent A. Heath P.E. Fax: (940) 349-7334 and City of Denton, Texas City Manager 215 East McKinney Street Page 8 of 13 Denton, Texas 76201 Fax: (940) 349-8596 All notices given under this Agreement shall be effective upon their actual receipt by the party to whom such notice is given. ARTICLE XV ENTIRE AGREEMENT This Agreement consisting of thirteen (13) pages and one (1) exhibit, 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, understandings, and agreements which may have been made in connection with the subject matter of this Agreement. ARTICLE XVI SEVERABILTY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement, and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement, to the extent reasonably possible, to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the original intentions of the parties respecting any such stricken provision. ARTICLE XVII COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, local laws, rules, regulations, and ordinances applicable to the work performed by CONSULTANT hereunder, as they may now read or as they may hereafter be amended. ARTICLE XVIII DISCRIMINATION 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 own expense all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, nor have any contractual relations with the OWNER. Page 9 of 13 CONSULTANT shall immediately inform the OWNER in writing of any conflict of interest or potential conflict of interest that CONSULTANT may discover, or which may arise during the term of this Agreement. Bo Ail services required hereunder will be performed by CONSULTANT or under its direct supervision. All personnel engaged in performing the work provided for in this Agreement, shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. Co It is hereby mutually agreed that the OWNER and CONSULTANT will not solicit, hire, or contract with any employee(s) of the OWNER'S or CONSULTANT'S staff who are associated with efforts called for under this Agreement during the term of this Agreement and for a period of one (1) year thereafter. In the event the foregoing provision is breached, liquidated damages equal to twelve (12) months of the employee's compensation plus any legal expenses associated with the enforcement of this provision shall be paid by the hiring party. 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 otherwise) without the prior written consent of the OWNER. CONSULTANT shall further promptly notify 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 MODIFICATION 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 of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto arising out of, or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed. The parties further agree that the provisions of this Article will not be waived unless as herein set forth. ARTICLE XXII FORCE MAJEURE Neither party shall be considered in default in the performance of its obligations hereunder, to the extent that performance of such obligations is prevented or delayed by any cause, existing or future, which is beyond the reasonable control of such party. Any delays beyond the control of either party shall automatically extend the time schedules as set forth in this Agreement by the period of any such delay. Page 10 of 13 ARTICLE XXIII LIMITATION OF LIABILITY A. CONSULTANT'S liability to the OWNER shall extend only to those actual damages suffered by the OWNER as a direct result of CONSULTANT'S breach of this Agreement. CONSULTANT'S liability shall not exceed the amount actually paid by the OWNER for the professional services involved in this Agreement. B. Notwithstanding the provisions of Article XXIII.A. of this Agreement, the provisions and the coverage provided for in Article X. of this Agreement shall apply, and shall be in full force and effect. ARTICLE XXIV MISCELLANEOUS A. The following Exhibit is attached to, incorporated herewith by reference, and is made a part of this Agreement for all purposes pertinent: Exhibit "A" --- Executive Summary, Scope of Work, ArcFM MultiSpeak Implementation Plan --- dated: October 23, 2003." Bo CONSULTANT agrees that OWNER shall, until the expiration of four (4) years after the final payment made by OWNER under this Agreement, have access to and the fight to examine any directly pertinent books, documents, papers and records of the CONSULTANT involving transactions relating to this Agreement. CONSULTANT agrees that OWNER shall have access during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space in order to conduct examinations or audits in compliance with this Article. OWNER shall give CONSULTANT reasonable advance notice of all intended 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 construed in accordance with the laws of the State of Texas. D. For purposes of this Agreement, the parties agree that the Project Principal is expected to be Jeff B. Meyers, and the key person who is anticipated to perform most of the work as the Project Team, include the Project Manager, Scott A. Koehler and another technical staff from CONSULTANT, under, and in accordance with this Agreement, shall be as specifically identified and set forth in Exhibit "A" attached hereto. This Agreement has been entered into with the understanding, expectation, and the OWNER's reliance, that the above-stated employee of CONSULTANT is expected to perform all or a significant portion of the work on the Project. Additionally, it is agreed that Jim Danley will be available on a limited basis Page 11 of 13 to assist the Project Manager for tasks that require specific knowledge of OWNER'S existing system. Any proposed changes regarding the change of the Project Manager or other key personnel, 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 unreasonably withhold. Nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the other incidental services required herein, under its supervision or control. Eo CONSULTANT shall commence, carry on, and complete its work on the Project with all applicable dispatch, and in a sound, economical, efficient manner, and in accordance with the provisions hereof in accomplishing the Project, 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. Fo The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project and arranging for the access to, and make all provisions for the CONSULTANT to enter in or upon, public and private property as required for the CONSULTANT to perform professional services under this Agreement. OWNER and CONSULTANT agree that CONSULTANT is entitled to rely upon information furnished to it by OWNER without the need for further inquiry or investigation into such information. Go During the entire course of the project, OWNER will be responsible for backup/recovery of all onsite project related digital data, materials and databases. CONSULTANT will be responsible for backup/recovery of all project related data housed on CONSULTANT computer systems. H. The captions of this Agreement are for informational purposes only and shall not in any way affect the substantive terms or conditions of this Agreement. IN WITNESS WHEREOF, the OWNER, the City of Denton, Texas has executed this Agreement in four (4) original counterparts, by and through its duly authorized City Manager; and CONSULTANT has executed this Agreement by and through its duly authorized undersigned officer on this the __ day of ., 2003. CITY OF DENTON, TEXAS A Texas Municipal Corporation By: Michael A. Conduff, City Manager Page 12 of 13 ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: "CONSULTANT" MINER & MINER CONSULTING ENGINEERS, INC. A Colorado Corporation ATTEST: By: /~ By: S:\Our DocumentsXContracts\03LMiner & Miner Consulting Engr-PSA-2003-DME.doc Page 13 of 13 Executive Summary Miner & Miner Consulting Engineers, Inc. is pleased to have this oppommity to present a proposal to the City of Denton Electric Department for migration of their existing ArcFM Version 7.2 platform to ArcFM/ArcGIS Version 8.3. The City of Denton has recognized that the migration of their GIS to a more modem platform will result in increased stability of their system and provide them with a more robust environment on which to deploy an enterprise GIS. The ArcFM Solution provides a framework for scalable enterprise GIS. It enhances the use of ArcGIS for data maintenance while at the same time providing configuration tools that enable rapid deployment and easy adjustment of the system. The ArcFM Solution includes applications such as Session Manager, Designer, Conduit Manager, Network Adapter, and Responder. The work management functions provided by these tools support, or can be tailored to support, the City of Denton's existing workflow processes. Version 8.3 of the ArcFM Solution is open, scalable, and will continue to be supported and enhanced to meet the needs of an ever-growing ArcFM user community. In the past, it has been difficult for software vendors to offer a workable GIS solution to municipal and REA-sized utilities. Historically, this difficulty has been due, in part, to the fact that each utility has required significant resources to develop and deploy a working data model. We now offer an off-the-shelf GIS that can be rapidly deployed, while at the same time providing extended editing and mapping tools. This baseline implementation of ArcFM provides a solid foundation for all ArcFM Solution applications the City of Denton may choose to deploy in the future. Key to Miner & Miner's proposal is the concept of a common and standardized data model that is used as- is for the implementation project. Miner & Miner developed the model to support MultiSpeak compliance for ArcFM, and the model is currently being implemented at PEAs and mumcipalities. MultiSpeak compliance signifies a software vendor can provide certified interfaces that can communicate with other MultiSpeak compliant software packages. MultiSpeak 2.0, the latest version released earlier this year, is the result of a 3-year collaboration between the Cooperative Research Network (CRN) of the National Rural Electric Cooperative Association (NRECA) and a group of nearly 80 software vendors and consultants that serve the small utility market. As part of this proposal, Miner & Miner will deploy ArcFM at the City of Denton with a data model built in conjunction with our interface to MultiSpeak. The MultiSpeak interchange standard provides a wide range of options for the City of Denton, and Miner & Miner believes that this would be the most cost effective and strategic approach for your implementation of ArcFM/ArcGIS. Miner & Miner has lead many conversions of ArcFM 7.2 systems to ArcFM/ArcGIS 8. We have found that an off-the-shelf approach enables the implementation to focus on data migration and on support for deployment. The approach Miner & Miner is proposing is to implement our data model without modification. The data set will be pre-configured and ready to use, and the functionality provided by ArcFM will be off-the-shelf. Miner & Miner does not propose to provide any customization as part of this migration proposal. The highlights of this proposal are as follows: · Building Your ArcFM project methodology - Design, Develop, Deploy · An off-the-shelf data model that supports our MultiSpeak-compliant interfaces · Off-the-shelf ArcFM functionality · Data Migration · Training · Support The City of Denton is an existing customer of Miner & Miner and a user of ArcFM technology. Maintenance is current; therefore, no software costs will be associated with this project. Miner & Miner is excited about the possibility of working with the City of Denton as they move forward in the deployment of Version 8.x ArcFM and ArcGIS technology. Scope of Work Migration to ArcGIS / ArcFM for The City of Denton ArCFMT- S'OLUTION '; ' - .' '-' ,.~ ?.',;" :Z~ ,., . Provided by: Miner and I~finer/ Consulting Engineers/Xnc, Phone 970-225-1888 Fax 970-223-$$77 Introduction ........................................................................................................................... 1 1.1 ArcFM Design Phase ..................................................................................................................... 1 1.1.1 Project Kickoff Meeting ........................................................................................................ 1 1.1.2 Core Team Training ............................................................................................................... 2 1.1.3 Migration Planning ................................................................................................................ 2 1.1.4 Document Migration Plan ...................................................................................................... 2 1.1.5 Review Migration Plan .......................................................................................................... 2 1.1.6 Update Migration Plan ........................................................................................................... 2 1.1.7 Approve Migration Plan ........................................................................................................ 3 1.2 ArcFM Develop Phase ................................................................................................................... 3 1.2.1 Compile and Deliver Source Mate~als .................................................................................. 3 1.2.2 Migration ............................................................................................................................... 3 1.2.3 Build Network and QA Data .................................................................................................. 3 1.2.4 Set Up Hardware and So.are on Site .................................................................................. 3 1.2.5 Load Data on Site .................................................................................................................. 4 1.2.6 Review Data with Client ........................................................................................................ 4 1.2.7 Data Migration Acceptance ................................................................................................... 4 1.3 ArcFM Deploy Phase ..................................................................................................................... 4 1.3.1 Training .................................................................................................................................. 4 1.3.2 Begin Data Maintenance ........................................................................................................ 4 1.3.3 Production Support on Site .................................................................................................... 4 1.4 Data Model Changes ...................................................................................................................... 5 City of Denton Scope of Work ArcFM Implementation Introduction This document details the tasks that Miner & Miner (M&M) and the City of Denton will accomplish in the migration from ArcFM 7.2 to ArcFM 8.3 at the City of Denton. The structure of this document will reflect the Project Schedule, provided separately. As this is a joint effort, this document will identify responsibilities for individual tasks as appropriate. M&M and the City of Denton will complete the tasks detailed in the following sections. Should the City of Denton request M&M to perform services beyond those specified, the hourly labor rates listed will apply. This project plan provides a low-cost approach to migrating ArcFM 7.2 to ArcFM 8.3. It is based on using a common, standardized out-of-the-box data model. Therefore, we have not allocated project resources to modify the data model. This data model includes field definitions, domains, relationships, and connectivity rules. M&M will provide the City of Denton with a configured schema built from this out of the box data model. The configuration will include favorites, object and field properties, AutoUpdater assignment, model name assignment, stored displays, map templates, and standard symbology. We have not allocated project resources to add or adjust these configurations. The purpose of this project is to take existing City of Denton data and migrate it into the out of the box data model to deliver a pre-configured Geodatabase, build the geometric network(s) to support tracing functionality, migrate the data, and then train and support the City of Denton operators in the effective use of the system. 1.1 ArcFM Design Phase The initial phase for the project will establish a working Geodatabase and an operational data maintenance environment at the City of Denton. 1.1.1 Project Kickoff Meeting M&M will travel to the City of Denton for a ½ -day Project Kickoff Meeting. The team will first review, discuss, and make sure all participants fully understand the goals and methodology for the project. We will also review the project plan to review the tasks, responsibilities, and dependencies. The team will then cover the administrative framework for managing the project. We will establish communication processes, business processes (for example, configuration control and access control), and change control processes. The City of Denton will assign the following key personnel to support the project and will ensure each is available and can provide necessary support at the required times over the course of the project. The City of Denton will ensure the individuals assigned possess the appropriate skills and are authorized to participate in decisions made over the course of the project. · Executive Sponsor · Project Manager · IT System Administrator City of Denton ArcFM implementation · IT Database Administrator · Subject Matter Experts Deliverable: Facilities for on-site kick-off meeting (City of Denton), On- site Project Kickoff Meeting (M&M, City of Denton) 1.1.2 Core Team Training Immediately following the Project Kickoff Meeting, the M&M Project Manager will lead an on-site training for the City of Denton project team. This training will be an abbreviated and high-level presentation of the technology and tools. It will introduce the team to the standard data model and provide them with the background necessary to fully participate in planning sessions. It is not intended as an end-user training class and will not go into that level of detail nor provide exercises to reinforce the techniques presented. I Deliverable: Core Team Training Seminar (M&M) 1.1.3 Migration Planning In order to effectively migrate the existing data maintained by the City of Denton, the team will review the existing data sources and determine how that data will be migrated into the M&M standard data model. M&M will lead the review and documentation of the migration process to take the existing City of Denton data and migrate it into the data model. The team will identify the sources and the procedures required to migrate the existing data. Given that the standard data model includes domains (also called valid value tables or pick lists), this planning session will determine how the existing data will be converted into the appropriate value in the destination model. Should existing DME data not fall within the OOTB model then those fields shall be documented and an estimate provided to DME on how many additional hours it would take to integrate that data into the OOTB model using the labor rates listed in 1.4. Deliverable: Lead Migration Planning Session (M&M) 1.1.4 Document Migration Plan M&M will document the migration procedures and specifications developed during the Mi~ation Planning Session. Deliverable: Migration Plan (M&M) 1.1.5 Review Migration Plan The City of Denton will review the Migration Plan and provide comments back to M&M within 5 business days. Deliverable: Review of Migration Plan (City of Denton) 1.1.6 Update Migration Plan M&M will revise the migration procedures and specifications based on feedback from the City of Denton. City of Denton ArcFM Implementation Deliverable: Revised Migration Plan (M&M) 1.1.7 Approve Migration Plan The City of Denton will approve the Migration Plan. This plan will serve as the specification for the migration effort and cannot be modified after this point without impacting the migration schedule and costs. Any additional work DME desires will be preformed and charged at the labor rates provided in 1.4. [ Deliverable: Approved Migration Plan (City of Denton) 1.2 ArcFM Develop Phase This series of tasks will produce data migrated into the out of the box data model in accordance with the Migration plan. 1.2.1 Compile and Deliver Source Materials The City of Denton will prepare and deliver source materials to M&M in accordance with the procedures documented in the Migration plan. Deliverable: Source Materials (City of Denton) 1.2.2 Migration M&M will migrate the source data provided by the City of Denton into the out of the box data model provided by M&M. Deliverable: Populated schema(s) (M&M) 1.2.3 Build Network and QA Data M&M will build the geometric network and set trace weights based on existing attributes. Once the networks are available, M&M will use the tracing tools in ArcFM to review the connectivity of the data. M&M will also assess the completeness and connectivity of the data. M&M will provide a written assessment of the data to the City of Denton. Deliverable: Geometric Network built on migrated data, trace weight values set, and a written assessment of the data (M&M) 1.2.4 Set Up Hardware and Software on Site ESR[ - San Antonio will install and set up the hardware for the GIS. ESR[ - San Antonio will install ArcGIS, SQLServer, ArcSDE, and ArcFM. This task must be complete before the data can be loaded on site. Since DME is already using ArcGIS, this portion may be used to load the most current version of ESR[ software. Deliverable: Set up of hardware and software for GIS. (ESR[-San Antonio) City of Denton ArcFM ]mplementation 1.2.5 Load Data on Site 0ncc thc City of Denton has installed thc required hardware and soft, yarc, M&M will travel to thc City of Denton and install thc migrated data. M&M will test to ensure the system is ready for usc. Deliverable: Migrated data loaded at thc City of Denton (M&M) 1.2.6 Review Data with Client Thc M&M team will review thc data with the City of Denton team. Thc review will consist of demonstrating that the data has been migrated per thc Migration plan. [ Deliverable: Review of data at the City of Denton (M&M) 1.2.7 Data Migration Acceptance The City of Denton will provide acceptance of the data and configuration in preparation for turning thc data over for usc and maintenance by users of the system. Any debugging, tweaking or relating of the data tables will be done at this time to ensure a high confidence of successful data migration. Deliverable: Formal Data Migration and Configuration Acceptance (City of Denton) 1.3 ArcFM Deploy Phase The project team will roll out the data and tools to the production users. 1.3.1 Training M&M will provide a standard Working with ArcFM training course on-site for the City of Denton users. M&M will provide course materials and sample data for thc course exercises. The City of Denton will provide facilities and computers for the participants. Deliverable: Working with ArcFM Training class (M&M), facilities and computers for students (City of Denton) 1.3.2 1.3.3 Begin Data Maintenance This is a project milestone where the system has been turned over to users. Production Support on Site M&M will provide a technical resource to support the initial rollout of the data and help users start working with the tools. Deliverable: One week of on-site support (M&M) City of Denton ArcFM Implementation 1.4 Data Model Changes It is the intent of the City of Denton Electric Department to migrate their current ESRI / ArcFM environment to Version 8.3 or higher. It is understood that the target data model in the Geodatabase will support the ArcFM MultiSpeak interface, however, it is a requirement o£ this project that the City of Denton Electric Department have the ability to add additional fields to the data model as required to ensure no existing data is lost during the migration. The ability to add additional fields is supported by the solution proposed by M&M; however, M&M will require that the following labor rates apply to integrate and add these additional fields per the original estimate provided in 1.1.3: Project Manager $170.00 / Hr Senior Analyst $160.00 / Hr Analyst $145.00 / Hr **Travel and expenses are billed at cost plus an additional 15% administrative fee. PUBLIC UTILITIES BOARD AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: November 17, 2003 Electric Engineering Howard Martin, 349-8232 SUBJECT Consider approval of a Professional Services Agreement with Miner & Miner Consulting Engineers, Inc. for migration of DME's Geographical Information System (GIS) ArcFM database from version 7.2 to 8.3 in an amount not to exceed $100,000. BACKGROUND DME must maintain records and maps for the electric system installed equipment. A geographic information/facilities management system (referred to as "GIS") was the method chosen by the City more than ten years ago. GIS software assists electric utilities in increasing productivity, and improving services by effectively managing spatial data. ESRI was selected as the base system, and the companion Miner & Miner electrical specialty line was selected for the electric system data application. The Engineering Department for the City maintains all the land base data (streets, parcels, addresses, etc.), and other departments add in through additional specialty software application packages, similar to the Miner & Miner ArcFM electrical software, to manage data for their own unique applications (e.g. water or electric). As with any software product, the software matures over time. Approximately three years ago, ESRI and Miner & Miner made a major change in the structure of the database required for the electric system software in response to demands within the industry to increase capabilities, to improve performance and to facilitate data transfer between different types of software packages. Because of the cost and manpower required to make the change, DME has not undertaken the upgrade. Other changes within the City make it imperative that the change be made at this time. Improvements in functionality make it advantageous and it will improve staff efficiency through improved access and interface to electric data, file structure and reporting capabilities. Both DME and the City of Denton Technology Services departments have recognized that the GIS migration to the more modem and current platform will result in increased system stability, provide a more robust system environment and allow improved data connectivity across the network. With cost pressures on every segment of industry, Miner & Miner has taken advantage of years of experience and improvements in related software to offer a standardized package that is currently used at other Rural Electric Cooperatives and Municipally Owned Electric Utility Companies. Because Miner & Miner's standardized package is a pre-configured and ready to use as is, utilities such as Co-Serv in Corinth and Kissimmee Utility Authority in Florida have both just finished deploying a fully functioning enterprise GIS system in less than three months. The Miner & Miner ArcFM standardized solution's open architecture will provide DME the flexibility to meet its current business needs while providing an industry recognized tool for planning for the future. This migration and database conversion will organize DME's data into a standardized compliant model that will allow key data integration with other standardized compliant third party software. The GIS tool presently allows DME the capability to run database queries on the electric system infrastructure, create engineering and operational maps. This upgrade leads to the next logical step of using GIS data to assist with financial fixed asset accounting, distribution engineering analysis and outage management tracking and reporting. OPTIONS DME must maintain accurate system infrastructure records and be able to accurately produce electrical system operational maps. The two options are: 1. Upgrade with the standardized approach that has recently been developed for utilities. 2. Start a complete new customized database process at a cost that will start a minimum of two and one-half times higher than this standardized approach. RECOMMENDATION Enter a contract with Miner & Miner to migrate existing electric GIS data from the ArcFM 7.2 platform to the 8.3 platform at a cost not to exceed $100,000. ESTIMATED SCHEDULE OF PROJECT The work is planned for start in January and completion by April 2004. PRIOR ACTION/REVIEW (Council, Boards, Commissions) None FISCAL INFORMATION Funded from approved operating budget account number 600500.7854.5880. BID INFORMATION Miner & Miner Consulting Engineers, Inc. is the sole source vendor for the ArcFM electrical companion package that the City has adopted. EXHIBITS 1. Professional Services Agreement 2. Executive Summary 3. Scope of Work Respectfully submitted: Prepared by: Sharon Mays Director of Electric Utilities Chuck Sears Engineering Administrator AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: December 2, 2003 Materials Management Kathy DuBose, Fiscal and Municipal Services Questions concerning this acquisition may be directed to Charles Fiedler 349-8948 SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding a public works contract for the construction of the Carroll Boulevard Urban Street Program miscellaneous street repair; providing for the expenditure of funds therefore; and providing an effective date (Bid 3048-Urban Street Program Carroll Boulevard awarded to Silver Creek Construction, inc. in the amount of $407,905). BID INFORMATION This bid is for the spot repair to existing concrete paving in the north and southbound lanes of Carroll Boulevard. The area that will be repaved on an as needed basis extends from Eagle Drive to Egan Drive. This project is part of the State of Texas Street Urban Program Improvements. Repairs consist of approximately 2874 square meters of concrete slab repair in the northbound traffic lanes and approximately 1228 square meters in the southbound lanes, along with joint sealing and curb repair. This project was previously bid in May 2003. However that bid exceeded the TxDOT cap on funding available for the project. As a result, components of the project had to be re-designed in order to bring the project cost within the TxDOT funding allocation. RECOMMENDATION We recommend award of Bid 3048-Urban Street Program Carroll Boulevard to Silver Creek Construction, inc. in the amount of $407,905. Silver Creek Construction, inc. submitted the only bid. PRINCIPAL PLACE OF BUSINESS Silver Creek Construction, Inc. Ponder, TX Agenda Information Sheet December 2, 2003 Page 2 STAFF COST ESTIMATE The engineer's estimate on this project was $315,230.40. However, staff feels the estimated unit pricing used for the engineering estimate was probably too low. This is based on the fact that the unit pricing Silver Creek Construction, Inc. is proposing in its current bid is actually considerably lower than the unit pricing received on the previous bid in May 2003. ESTIMATED SCHEDULE OF PROJECT This project is estimated to begin January 5, 2004 with a planned completion date of May 7, 2004. FISCAL INFORMATION This project will be funded from project numbers 350001439 and 350001440. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Bid Tabulation 1-AlS-Bid 3048 0 0 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF THE CARROLL BOULEVARD URBAN STREET PROGRAM MISCELLANEOUS STREET REPAIR; PROViDiNG FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROViDiNG AN EFFECTIVE DATE (BID 3048-URBAN STREET PROGRAM CARROLL BOULEVARD AWARDED TO SILVER CREEK CONSTRUCTION, iNC. iN THE AMOUNT OF $407,905). 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 Silver Creek Construction, Inc. 3048 $407,905 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 .,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-Bid 3048 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: December 2, 2003 Materials Management Kathy DuBose, Fiscal and Municipal Services Questions concerning this acquisition may be directed to Sharon Mays 349-8487 SUBJECT Consider adoption of an Ordinance of the City of DeNon, Texas accepting competitive bids and awarding a best value annual contract for a three year agreement for the purchase of 15/20/25 MVA power transformers; providing for the expenditure of funds therefore; and providing an effective date (Bid 3105-Three Year Agreemem for Purchase of Power Transformers awarded to Waukesha Electric Systems in the estimated amoum of $2,597,758). BID INFORMATION The CIP includes four projects that will require the purchase of 15/20/25 MVA substation power transformers. Transformers will be used for three new distribution stations (DeNon North, Iron Horse, and Fort Worth Drive) and for replacemem of one aging transformer in the Locust Substation. It is necessary to construct the new stations to support load growth in Denton. DME's peak load during the summer of 2002 was 260.4 MW, and the peak load during the summer of 2003 was 286.6 MW. Over a period of one year, the peak load increased 26.2 MW. The table below is a summary of construction activity in DeNon. The first section is for projects that were completed between January 2002 and June 2003. The second section is for the projects currently in construction or planning that will mature over the next one to five years. The estimates shown in this table are as accurate as the available information allows and are conservative. Projects in the early stages of the City's developmem review process that appeared uncertain were not included. This table shows that the 26.2 MW peak load growth from 2002 to 2003 was not precipitated by a large number of new developmem projects. 2001 and 2002 were years where a relatively modest number of new projects were undertaken in the city. Growth in load was as much a result of build out of in-place subdivisions as it was new projects. Construction Activity Summary_ for Denton Municipal Electric # of Projects # of Units Transformer MW January 2002 to June 2003: Apartmems 7 540 2.9 Commercial 22 26 7.2 Residemial Subdivisions 6 346 12.6 Agenda Information Sheet December 2, 2003 Page 2 BID INFORMATION (CONTINUED) Totals 35 912 22.7 Current Pro/ects: Apartments 7 1639 8.2 Commercial 35 75 35.4 Residential Subdivisions 28 5872 41.1 Totals 69 7586 84.7 The table shows that 2003 has been a year for initiation of a greater level of development activity in Denton. One factor to consider in interpreting the information in the table is that apartment and commercial construction tend to mature more quickly than residential subdivisions (the time from the start of the project to the time when substantial electrical power is used). Because of this, about half the 84.7 MW will be in service within no more than two years. Further, it is likely that additional commercial and apartment construction activity will be initiated and completed within the time frame covered by the CIP. Clearly, there will be a need for additional system capacity in the near future. If the load growth continues to follow the pattern of the past, the 80 MW of transformer capacity proposed for addition to the system (four new 25 MW units with one 20 MW unit retired) will just keep pace with the growth in demand. Additional substation transformer capacity and additional distribution circuits will be required. That is why three substation projects have been included in the CIP. Typical lead times for distribution substation projects from conception to completion are 24 to 30 months. Substation transformers are the heart of a power system. There are no alternatives to having these devices. Substation transformers are generally the largest pieces of equipment on a power system, and a significant period of time is required to obtain replacements for them. The replacement process typically includes one to two months for preparing a specification, two months for bid and approval, six to eight months from the time the order is placed to delivery of the new transformer, and one month for assembly and installation on site. Over the last five years, actual delivery times for transformers have varied from five months to twelve months. As power system components age, the probability for failures increases. There are three transformers on the DME system that are more than 30 years of age and several that are over 20 years of age. The average life expectancy for transformers is 30 to 40 years. It is necessary that system owners be proactive in addressing the aging of transformers by having an orderly plan for replacement. Not planning for replacement risks the impact operationally and financially of having multiple failures of critical components in a short span of time. DME plans to replace all three of these older transformers over the next four to six years. The Locust transformer has been chosen for replacement first because it has a greater number of problems. Agenda Information Sheet December 2, 2003 Page 3 BID INFORMATION (CONTINUED) The unit price approach with a three-year agreement provides an efficient and cost effective method for obtaining transformers for projects in the CIP and for responding to replacement needs. Notices of the bid were sent to 21 vendors. Eight bids were received. During preparation of the specification, a recognized method was used to determine the lifetime value of losses for transformers used on the Denton system. Three values are calculated and included in the specification for manufacturers to use as inputs to their designs: no-load, full load and auxiliary equipment loss values. The bid loss evaluation completed by staff combines the initial capital cost of the transformer with a lifetime cost for losses. The lifetime loss cost is calculated by multiplying the values for losses given in the specification with each manufacturer's losses stated in their bid. This combined capital and loss cost gives a measure for comparison of the relative values offered by each manufacturer's design. The categories and possible points used for "best value" determination were provided to the vendors as part of the "Notice to Bidders" in the specification. The evaluation committee consisted of staff from Engineering and Electric Utility. Waukesha's bid was ranked as having the "best value." The bid meets the requirements of the specification. There are four transformers contained in projects in the CIP at this time. With two additional transformers being over 30 years of age, it is prudent to include these in the estimated total as potential costs. Transformers needed in the fourth year out may have to be ordered before the end of the agreement period. Only transformers in approved projects in the CIP or transformers needed to replace failed units will be purchased. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) The Public Utility Board will consider this item at its December 1, 2003 meeting. RECOMMENDATION We recommend award of this bid to Waukesha Electric Systems in the estimated amount of $2,597,758. Agenda Information Sheet December 2, 2003 Page 4 PRINCIPAL PLACE OF BUSINESS Waukesha Electric Systems Goldsboro, North Carolina ESTIMATED SCHEDULE OF PROJECT This bid is a three-year agreement, which can be terminated earlier by either party with 60 days notice. FISCAL INFORMATION Funding for these items will come from accounts 600562486, 600126489 and 600696489. Attachment 1 :Bid Tabulation Sheet 1-ALS-3105 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent X {..9 .-- 0 , ::::::::::::::::::::::: ~ iiii~iiiiiiiiiiiiiiiiiiii '"- ORDINANCE. AN ORDINANCE OF THE CITY OF DENTON, TEXAS ACCEPTING COMPETITIVE BIDS AND AWARDING A BEST VALUE AGREEMENT FOR THE PURCHASE PROVIDING FOR THE EXPENDITURE EFFECTIVE DATE (BID 3105-THREE POWER TRANSFORMERS AWARDED ESTIMATED AMOUNT OF $2,597,758). ANNUAL CONTRACT FOR A THREE YEAR OF 15/20/25 MVA POWER TRANSFORMERS; OF FUNDS THEREFORE; AND PROVIDING AN YEAR AGREEMENT FOR THE PURCHASE OF TO WAUKESHA ELECTRIC SYSTEMS IN THE WHEREAS, the City has heretofore solicited, received, and tabulated competitive best value bids, for the purchase of necessary materials, equipmem, supplies or services in accordance with the procedures of State law and the City of DeNon, Texas ordinances; and WHEREAS, the City Manager or a designated employee of the City with authority, have reviewed and recommended that the herein described bids are the best value bids for the materials, equipmem, supplies or services as shown in the "Bid Proposals" submitted therefore based on the selection criteria set forth in the requests for bids; and WHEREAS, the best value bid awarded herein meets specifications, the City Council having waived defects in the bid proposal sheet because the bid quotation attached to the bid proposal sheet substantially complies with the bid specifications; 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 findings and conclusions set forth in the preamble of this ordinance are incorporated within the body of the ordinance. SECTION 2. The options in the following numbered bids for materials, equipmem, supplies, or services, shown in the "Bid Proposals" on file in the office of the City Purchasing Agem, is hereby accepted and approved as being the best value bid for such items: RFP NUMBER VENDOR AMOUNT 3105 Waukesha Electric Systems Exhibit A SECTION 3. By the acceptance and approval of the above items of the submitted bids, the City accepts the offer of the persons submitting the bids for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Bid Invitations, Bid Proposals, and related documents. SECTION 4. The City Manager is hereby authorized to execute any and all necessary written contracts for the performance of the services in accordance with the bids accepted and approved herein, provided that such contracts are made in accordance with and relating to the items specified in Section 1, which written contract(s) shall be attached hereto; provided that the written contract is in accordance with the above Request to Submit Bids, Bid Proposals, and documents relating thereto specifying the terms, conditions, plans and specifications, standards, quantities and specified sums contained therein. SECTION 5. By acceptance and approval of the above numbered items of the submitted bids, the City Council hereby authorizes the expenditure of funds therefore in the amount and in accordance with the approved bids or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 6. approval. This ordinance shall become effective immediately upon its passage and PASSED AND APPROVED this day of ,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR By: APPROVED AS TO LEGAL FORM: HERBF~T ~ DI~I~IITTV I~ITV aTTORNEY 3-ORD-3105 Exhibit A Bid Cf 3105 Date: 11/20/03 3 Year Agreement Purchase Of 15/20/25 MVA Power Transformers I I Waukesha Electric Systems Principle Place of Business: Goldsboro, NC Denton North (138kY) I Top-I~lou nted LV Bushings b. Proposed delivery As requested d. Not to exceed freight $15,000.00 amount a. Basic Bid $378,307.00 iiiiiiiiiiii :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: :::::::::::::::::::::::::::::::::::::::::::::::::::::::: c. Estimated freight $9,400.00 charges NO~ DI~$CRIPTION ~endOr I I Waukesha Electric Systems Locust (138kV x 69 kY) 3 Bus Duct IV Configuration B. Proposed delivery As requested d. ~ot to exceed ~rei~ht $16,800.00 amouBt Exhibit A Bid Cf 3105 Date: 11/20/03 3 Year Agreement Purchase Of 15/20/25 MUA Power Transformers I I Waukesha Electric Systems Principle Place of Business: Goldsboro, NC a. No Load Losses :1.5.75 c. Load Losses at 25 123 HVA 2 Iron Horse (138kY) b. Load Losses at 15 44.25 MVA d. Auxiliary Losses :1..8 a. No Load Losses :1.5.5 c. Load Losses at 25 134 HVA AGENDA INFORMATION SHEET AGENDA DATE: December 2, 2003 DEPARTMENT: CM/ACM/ACM: Airport and Transit Operations Jon Fortune, Assistam City Manager SUBJECT Consider adoption of an ordinance of the City of DeNon, Texas requesting Non-Primary Entitlement Funds from the Texas Department of Transportation for a project for the purchase and installation of airport radio equipment at the Denton Municipal Airport; authorizing and directing the City Manager or his designee to execute documems on behalf of the City of DeNon in order to implemem the project; and providing an effective date. BACKGROUND As part of cominued airport developmem opportunities, the Texas Departmem of Transportation, Aviation Division (TxDOT) is offering developmem funds through the federal Non-Primary Emitlemem Fund program for the purchase and installation of radio and communication equipmem for comrol towers. Non-Primary Emitlemem Funds have traditionally been unavailable for comrol towers, however, recem legislation approved the use of these funds in the construction and equipping of non-federal comrol towers. Furthermore, the legislation allows TxDOT/FAA to apply the funds retroactively to certain projects completed on or after 1996. As you know, the City of Denton recemly reached a poim of substamial completion in the construction of the comrol tower at the Demon Airport and staff has accepted the radio and equipmem package in full. Airport Managemem is requesting that TxDOT reimburse the City of Demon through the use of FY 2003 Non-Primary Emitlemem Funds. This is a 90:10 gram match where the local sponsor, City of Demon, will fund 10 percem of the total project funds. Total project funds available, local share and TxDOT share, through this grant program will be $166,600. The total cost for the purchase and installation of the tower equipmem was $189,420. The City initially agreed to accept responsibility for 100 percem of this cost. This gram will allow the City to recapture $150,000, TxDOT's 90 percem share, of the original cost for the tower equipment. PRIOR ACTION/REVIEW The Airport Advisory Board has been briefed and unanimously recommends approval of the proposed resolution. Staff recommends approval of the proposed resolution to accept the offer. ESTIMATED SCHEDULE OF PROJECT TxDOT is requesting supporting documemation of the project to be submitted prior to December 10, 2003. If approved by the Texas Transportation Commission on December 18, 2003, TxDOT will initiate an Airport Project Participation Agreemem (APPA), no later than February 15, 2004. Once the APPA gram agreemem has been implememed, TxDOT will reimburse the City for expenses associated with the acquisition of the control tower equipment. FISCAL INFORMATION This is a 90:10 match gram for a total of $166,600 for the requisition of radio and communication equipment recently installed in the control tower. Total funds available for this project are $166,600. TxDOT's 90 percem share of this gram is $150,000 and the City's 10 percem share is $16,660. Total equipmem cost for the project was $189,420. Original funding to construct and equip the tower was authorized through Ordinance 2002-050, dated February 19, 2003. EXHIBITS Ordinance Certification of Project Funds Designation of Project Representative Draft Minutes of 11-19-03 Respectfully submitted: Mark Nelson, Director Airport and Transit Operations ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS REQUESTING NON- PR/MARY ENTITLEMENT FUNDS FROM THE TEXAS DEPARTMENT OF TRANSPORTATION FOR A PROJECT FOR THE PURCHASE AND INSTALLATION OF AIRPORT RADIO EQUIPMENT AT THE DENTON MUNICIPAL AIRPORT; AUTHORIZING AND DIRECTING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE DOCUMENTS ON BEHALF OF THE CITY OF DENTON IN ORDER TO IMPLEMENT THE PROJECT; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City of Denton, Texas, hereinafter referred to' as Sponsor, intends to make certain improvements to the Denton Municipal Airport; and WHEREAS, the general description of the project is described as the purchase and installation of airport radio equipment (the "Project"); and WHEREAS, the Sponsor is currently eligible for federal Non-Primary Entitlement Funds of $150,000.00; and WHEREAS, the total Project cost is estimated to be $166,667.00; and WHEREAS, the Sponsor has available and will provide at least 10% of the project costs with local funds and understands that the above mentioned entitlement funds cannot be increased; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The Sponsor hereby requests federal Non-Primary Entitlement funds from the Texas Department of Transportation for the Project and related improvements. SECTION 2. The Sponsor hereby authorizes and directs the City Manager or his designee to execute on behalf of the Sponsor, at the appropriate time, and with the appropriate authorizations of this City Council, all contracts and agreements with the Texas Department of Transportation, and such other parties as shall be necessary and appropriate for the implementation of the Project and related improvements to the Denton Municipal Airport. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PAS SED AND APPROVED this the __ day of ,2003. EULI2qEBROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBE~~RNEY P~e2 CERTIFICATION OF PROJECT FUNDS I, Anna Mosqueda , Director, Management and Budget , (Name) (Title) do certify that sufficient funds to meet the City of Denton share of project costs as identified for the project and will be available in accordance with the schedule shown below: SPONSOR FUNDS Source Amount Date Available Funds approved in City Ordinance 2002-050 $1,015,421 February 19, 2002 City of Denton, Texas Title: Director of Management and Budget Date: DESIGNATION OF SPONSOR'S AUTHORIZED REPRESENTATIVE I, Michael A. Conduff , City Manager , (Name) (Title) with the City of Denton designates Mark Nelson, Dir. of Airport and Transportation Operations as the Ci_ty of Denton authorized representative for the Taxiway Realignment project, who shall have the authority to make approvals and disapprovals as required on behalf of the City of Denton. City of Demon, Texas (Sponsor) By: (Signature) Title: City Manager Date: DESIGNATED REPRESENTATIVE Mailing Address: 215 East McKinney Denton, Texas 76201 *Physical/Overnight Address 5000 Airport Road Denton, Texas 76207 Telephone Number: 940-349-7702 Fax Number 940-349-7289 E-Mail Address: manelson~cityofdemon.com * ALL GRANT AGREEMENTS ARE SENT BY OVERNIGHT MAIL DRAFT MINUTES AIRPORT ADVISORY BOARD MEETING November 19, 2003 Board Members Present: Bob Eames, Mark Hannah, Ron Keaton, John Kristoferson, John Vann, Rick Woolfolk Board Members Absem: Rick Dugan Receive a report, hold a discussion, and take action on Airport Participation Agreemem Project for Taxiway Realignmem and Apron GraM. Mr. Nelson presemed the item to the Airport Advisory Board and discussed TxDOT's desire to combine the engineering phase of two previously approved projects, Expansion of the Terminal Apron and Realignmem of Taxiway Alpha. Mr. Nelson poimed out that the TxDOT Commission has already approved these projects individually and that the next step of the gram process would be to accept the Airport Project Participation Agreement. Discussion was held on TxDOT's desire to move toward multi-project and multi-year engineering consulting agreements. Board Member Ron Keaton made a motion to recommend to City Council to approve the ordinance approving the Airport Project Participation Agreemem for the Taxiway and Apron projects. Board Member Bob Eames Seconded the motion. Motion carried unanimously. II. Receive a report, hold a discussion, and take action on Comrol Tower Radio and Communications Grant. Mr. Nelson presemed the item to the Airport Advisory Board and explained that due to new legislation, the City could request certain gram funds, Non-Primary Emitlemem Funds, be applied for the acquisition and installation of radio and communication equipmem for the air traffic comrol tower. Mr. Nelson explained that the total gram dollars available were $150,000 and that the total cost for radio and communication equipmem for the tower was approximately $189,000. Mr. Nelson further explained the $150,000 in reimbursemem from TxDOT for this project could be reinvested on other gram projects potemially leveraging an additional $1.5 million in airport improvemems. Board Member Ron Keaton made a motion to recommend to City Council to approve the ordinance approving the Radio and Communication Equipmem graM. Board Member John Vann seconded the motion. Motion carried unanimously. AGENDA INFORMATION SHEET AGENDA DATE: December 2, 2003 DEPARTMENT: CM/DCM/ACM: Airport and Transit Operations Jon Fortune, Assistant City Manager SUBJECT Consider adoption of an ordinance of the City of Demon authorizing the City Manager to execute on behalf of the City of Demon an Airport Project Participation Agreemem with the Texas Department of Transportation relating to the construction of improvements at the Denton Municipal Airport; and declaring an effective date. BACKGROUND In 1997 the Texas Departmem of Transportation, Aviation Division (TxDOT) was given authority to administer federal and state funds for capital improvemem projects for all reliever and general aviation airports statewide. This was done to assist TxDOT in facilitating the Texas Airport System Plan. In addition to the authority to administer federal gram funds, TxDOT was also provided with the ability to act as the local sponsor's agem, if desired, for the purposes of applying for, receiving and disbursing all funds for approved projects and administration of comracts necessary for the implememation and construction of improvements. On March 25, 2003 the City of Demon approved a resolution, R2003-007, confirming an agreemem with TxDOT to pay ten percem (10%) of the total project cost for the expansion of the Denton Airport Terminal Apron. The total estimated amount for the design and construction of this project is $860,000. TxDOT idemified $86,000, 10 percem of project costs, for the engineering phase of the project. The remaining $774,000 of the estimated project cost will be applied to the construction phase. On October 7, 2003 the City of Demon approved a resolution, R2003-036, confirming an agreemem with TxDOT to pay ten percem (10%) of the total project costs for the realignmem of the main taxiway and to install a medium imensity lighting system for the newly configured taxiway. The first phase of the $2.448 million project is the $244,480 design phase. Similar to all TxDOT Aviation grams, the design phase is approximately 10 percent of the entire project cost. TxDOT is requiring that the design phase of these projects be combined in an effort to streamline the bid process. In fact, TxDOT has initiated a new program that encourages local sponsors to emer imo multi-year/multi-project agreements for engineering and design services. These two projects are the first two projects that will be incorporated imo this proposed multi-year agreemem. TxDOT has also expanded the scope of the taxiway realignment project to include the replacement of the out dated visual approach slope indicator (VASI) with a precision approach path indicator (PAPI) for Runway 17-35. The expansion in scope, to include the PAPI, has resulted in an increase in total project cost by approximately $82,867. Therefore TxDOT has estimated a total combined project cost of $413,667 for engineering services associated with the described projects. ESTIMATED SCHEDULE OF PROJECT TxDOT is requesting a signed agreement for this project prior to January 2004 so that a request for proposal form can be designed and advertised no later than February 2004. It is the desire of airport staff to have the engineering consulting firm under contract no later than March 2004. PRIOR ACTION/REVIEW The City Attorney's Office has reviewed and airport staff recommends approval of this ordinance. The Airport Advisory Board unanimously recommends approval of the APPA. FISCAL INFORMATION The total design cost for these projects, as estimated by TxDOT, will be $413,667. The City's total share of the engineering cost is estimated at $41,366. The total estimated design and construction costs for this project is $3,450,000. Local funding for the design phase of this project has been identified through the use of 2002 CO Bonds. EXHIBITS Ordinance Airport Project Participation Agreement Resolution 2003-007 Resolution 2003-036 Draft Minutes of 11-19-03 Respectfully submitted: Mark Nelson Director of Airport and Transit Operations S:\Our Documents\Ordinances\03~Txdot Project Parti¢ipalion Ord.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER TO EXECUTE ON BEHALF OF THE CITY OF DENTON AN AIRPORT PROJECT PARTICIPATION AGREEMENT WITH TIIE TEXAS DEPARTMENT OF TRANSPORTATION RELATING TO THE CONSTRUCTION OF IMPROVEMENTS AT THE DENTON MUNICIPAL AIRPORT; 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 an Airport Project Participation Agreement with the Texas Department of Transportation relating to construction services and design/engineering services at the Denton Municipal Airport, a copy of such contract being attached hereto and made a part hereof for all purposes and referenced as TXDOT Contract No. 4XXAV042 (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. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR APPROVED AS~O LEGAL FORM: HE TORNEY TEXAS DEPARTMENT OF TRANSPORTATION AIRPORT PROJECT PARTICIPATION AGREEMENT (Federally Assisted Airport Development Grant) TxDOT CSJ No.:0418DNTON TxDOT Project No.~AP DENTON 5 TxDOT Contract No.: 4XXAV042 Part I - Identification of the Project TO: The City of Denton, Texas FROM: The State of Texas, acting through the Texas Department of Transportation This Agreement is made and entered into by and between the Texas Department of Transportation, (hereinafter referred to as the "State"), for and on behalf of the State of Texas, and the City of Denton, Texas, (hereinafter referred to as the "Sponsor"). The Sponsor desires to sponsor a project for the development of a public aviation facility, known or to be designated as the Airport under the Airport and Airway Improvement Act of 1982, as repealed and recodified in Title 49 United States Code, Section 47101 et seq., (hereinafter referred to as "Title 49 U.S.C."), and Rules, Regulations and Procedures promulgated pursuant; and under V.T.C.A. Transportation Code, Title 3, Chapters 21-22, et seq. (Vernon and Vernon Supp). The project is described as follows: design/engineering services to construct parallel taxiway; construct stub taxiway to north general apron and pave 2 grass islands; construct corporate apron; install medium intensity taxiway lights with separate circuits and regulator; replace visual approach slope indicator with precision approach path indicator-4 Runway 17-35 at the Denton Municipal Airport. The Sponsor applies for federal Financial assistance and desires the State to act as the Sponsor's agent in matters connected with the project described above. The parties, by this Agreement, do f~x their respective responsibilities, with reference to each other, with reference to the accomplishment of the project and with reference to the United States. Pursuant to and for the purpose of carrying out the provisions of Title 49 U.S.C., and in consideration of (a) the Sponsor's adoption and ratification of the representations and assurances contained in the Airport Project Participation Agreement and its acceptance of this Offer as provided, and (b) the benefits to accrue to the United States and the public from the accomplishment of the project and compliance with the assurances and conditions provided, THE TEXAS DEPARTMENT OF TRANSPORTATION, FOR AND ON BEHALF OF THE UNITED STATES, FEDERAL AVIATION ADMINISTRATION (HEREINAFTER REFERRED TO AS THE "FAA"), OFFERS AND AGREES to pay, as the United States share of the allowable costs incurred in Page 1 of 25 accomplishing the project, ninety percentum of all allowable project costs. This grant is made on and subject to the following terms and conditions: Part II - Offer of Financial Assistance The allowable costs of the project shall not include any costs determined by the State to be ineligible for consideration as to allowability under Title 49 U.S.C., the V.T.C.A. Transportation Code, Title 3, Chapters 21-22, et seq., (Vernon and Vernon Supp), and the Airport Zoning Act, Tex. Loc. Govt. Code Ann. §§ 241.001 et seq. (Vernon and Vernon Supp). It is estimated that design/engineering project costs will be approximately $413,667 (Amount A). It is further estimated that approximately $413,667 (Amount B) of the project costs will be eligible for federal financial assistance, and that federal financial assistance will be for ninety percent (90%) of the eligible project costs. Final determination of federal eligibility of total project costs will be determined by the State in accordance with federal guidelines following completion of project. The estimated project cost for the construction phase of this project is $3,450,000 (Amount C). The construction phase will be started upon completion of design, dependent upon availability of federal funds, and approval of the Texas Transportation Commission. A separate grant will be issued for the construction phase. In the event that federal funds are unavailable, this Agreement shall automatically be voided and become of no force and effect, except that unexpended cr unencumbered moneys actually deposited by the Sponsor and held with the State for project purposes shall be returned to the Sponsor. The maximum obligation of the United States payable under this offer shall be $372,300 (Amount D). This grant should not be construed as block grant funds for the Sponsor, but as a grant for funding of the scope items as listed on page one of this agreement. It is the intent of the State to provide funding to complete the approved work items of this grant and not to amend the scope of work to include items outside of the current determined needs of this project. Scope of work may be amended as necessary to fulfill the unforeseen needs of this specific development project within the spirit of the approved scope, subject to the availability of state, federal, and/or local funds. It is estimated that the Sponsor's share of the total project costs will be $41,367 (Amount E). The Sponsor specifically agrees that it shall pay any project costs, which exceed the sum of the federal share (Amount D). It is further agreed that the Sponsor will reimburse the State for any payment or payments made by the State in behalf of the Sponsor which are in excess of the federal percentage of financial Page 2 of 25 participation as stated in Paragraph 11-2. The State shall refund to the Sponsor, at the financial closure of the project, any excess funds provided by the Sponsor. During design, if the estimated eligible construction project costs exceed Amount C, above, the Sponsor may request the State to void this Agreement. The State shall agree to void this Agreement upon the satisfaction of the following conditions: the Sponsor's request to the State to void the Agreement shall be in writing and dated; and if required by the State, the Sponsor shall reimburse the State for funds expended on this project and Sponsor shall assume the responsibility for any future expenses for contracted services or materials related to the project for which a contract had been executed prior to the Sponsor's request to void the Agreement. Sponsor funds held by the State may be retained until this requirement is satisfied; and failure on the part of the Sponsor to comply with the conditions of this paragraph shall constitute a breach of this Agreement. Upon satisfaction of the conditions specified in Paragraph II-5 above, the State shall declare this Agreement null and void, and this Agreement shall have no force and effect, except that unexpended or unencumbered moneys actually deposited by the Sponsor and held with the State for project purposes shall be returned to the Sponsor within a reasonable time. If there is an overrun in the eligible project costs, the State may increase the grant to cover the amount of overrun not to exceed the statutory twenty-five (25%) percent limitation, and will advise the Sponsor by amendment of the increase. Upon receipt of the aforementioned amendment, the maximum obligation of the United States is adjusted to the amount specified and the Sponsor will remit their share of the increased grant amount. Participation in additional federally eligible costs may require approval by the Texas Transportation Commission. The State will not authorize expenditures in excess of the dollar amounts identified in this Agreement and any amendments, without the consent of the Sponsor. Payment of the United States share of the allowable project costs will be made in accordance with the provisions of such regulations and procedures as the State and the FAA, shall prescribe. Final determination of the United States share will be based upon the final audit of the total amount of allowable project costs and settlement will be made for any upward or downward adjustments to the Federal share of costs. Sponsor's share of project costs (Amount E) shall be paid initially in cash when requested by the State. At project closeout, Sponsor will be reimbursed for any credited amounts that exceed Sponsor's share. Sponsor, by executing this Agreement certifies, and upon request, shall fumish proof to the Page 3 of 25 State that it has sufficient funds to meet its share of the costs. The Sponsor grants to the State and federal government the right, upon advance written request during reasonable and regular business hours, to audit any books and records of the Sponsor to verify said funds. In addition, the Sponsor shall disclose the source of all funds for the project and its ability to finance and operate the project. Following the execution of this Agreement and upon written demand by the State, the Sponsor's financial obligation (Amount E) shall be due and payable to the State. State may request the Sponsor's financial obligation in partial payments. Should the Sponsor fail to pay the obligation, either in whole or in part, within 30 days of written demand, the State may exercise its rights under Paragraph V-7. Likewise, should the State be unwilling or unable to pay its obligation in a timely manner, the failure to pay shall be considered a breach and the Sponsor may exercise any rights and remedies it has at law or equity. Expenditures for eligible project costs for the above project made by the State or the Sponsor prior to the award of a federal grant for the project, and prior to actual receipt of the authority to expend federal grant funds, shall be made from Sponsor funds. 10. The State shall make all reasonable attempts to acquire federal funding for the completion and construction of this project within two years of completion of design services. The Sponsor agrees to complete and construct this project within two years of completion of design services, subject to the availability of federal funds. PART III - Sponsor Responsibilities 1. In accepting the Agreement, the Sponsor guarantees that: it will comply with the Attachment A, Certification of Airport Fund, attached and made a part of this Agreement; and it will comply with the Attachment B, Airport Assurances (9/99)(State Modified 9/99), attached and made a part of this Agreement; and it will, in the operation of the facility, comply with all applicable state and federal laws, rules, regulations, procedures, covenants and assurances required by the State of Texas or the FAA in connection with the federal grant; and the Airport or navigational facility which is the subject of this Agreement shall be controlled for a period of at least 20 years, and improvements made or acquired under this project shall be operated, repaired and maintained in a safe and serviceable manner for the useful life of said improvements, not to exceed 20 years; and consistent with safety and security requirements, it shall make the airport or air navigational facility available to all types, kinds and classes of aeronautical use without unjust discrimination between such types, kinds and classes and shall provide adequate Page 4 of 25 public access during the term of this Agreement; and it shall not grant or permit anyone to exercise an exclusive right for the conduct of aeronautical activity on or about an airport landing area. Aeronautical activities include, but are not limited to scheduled airline flights, charter flights, flight instruction, aircraft sales, rental and repair, sale of aviation petroleum products and aerial applications. The landing area consists of runways or landing strips, taxiways, parking aprons, roads, airport lighting and navigational aids; and it shall not permit non-aeronautical use of airport facilities, unless noted on an approved Airport Layout Plan, without prior approval of the State/FAA; and it shall not enter into any agreement nor permit any aircraft to gain direct ground access to the Sponsor's airport from private property adjacent to or in the immediate area of the airport. Further, Sponsor shall not allow aircraft direct ground access to private property. Sponsor shall be subject to this prohibition, commonly known as a "through-the-fence operation," unless an exception is granted in writing by the State due to extreme circumstances; and it will acquire all property interests identified as needed for the purposes of this project and comply with all applicable state and federal laws, rules, regulations, procedures, covenants and assurances required by the State of Texas or the FAA in connection with the federal grant in the acquisition of such property interests; and that airport property identified within the scope of this project and Attorney's Certificate of Airport Property Interests shall be pledged to airport use and shall not be removed from such use without prior written approval of the State; and the Sponsor shall submit to the State annual statements of airport revenues and expenses as requested; and all fees collected for the use of an airport or navigational facility constructed with funds provided under the program shall be reasonable and nondiscriminatory. The proceeds of such fees shall be used solely for the development, operation and maintenance of the Sponsor's system of airport(s) or navigational facility(ites). Sponsor shall not be required to pledge income received from the mineral estate to airport use unless state and/or federal funds were used to acquire the mineral estate of airport lands or any interests; and an Airport Fund shall be established by resolution, order or ordinance in the treasury of the Sponsor, or evidence of the prior creation of an existing airport fund or a properly executed copy of the resolution, order, or ordinance creating such a fund shall be submitted to the State. Such fund may be an account within another fund, but must be accounted for in such a manner that all revenues, expenses, retained eamings, and balances in the account are discemible from other types of moneys identified in the fund as a whole. All fees, charges, rents, and money from any source derived from airport operations must be deposited in said Airport Fund and shall not be diverted to the Page 5 of 25 general revenue fund or any other revenue fund of the Sponsor. All expenditures from the Airport Fund shall be solely for airport or airport system purposes. Sponsor shall be ineligible for a subsequent grant or loan by the State unless, prior to such subsequent approval of a grant or loan, Sponsor has complied with the requirements of this subparagraph; and the Sponsor shall operate runway lighting at least at low intensity from sunset to sunrise; and insofar as it is reasonable and within its power, Sponsor shall adopt and enforce zoning regulations to restrict the height of structures and use of land adjacent to or in the immediate vicinity of the airport to heights and activities compatible with normal airport operations as provided in Tex. Loc. Govt. Code Ann. §§ 241.001 et seq. (Vernon and Vernon Supp.). Sponsor shall also acquire and retain aviation easements or other property interests in or rights to use of land or airspace, unless Sponsor can show that acquisition and retention of such interests will be impractical or will result in undue hardship to Sponsor. Sponsor shall be ineligible for a subsequent grant or loan by the State unless Sponsor has, prior to such subsequent approval of a grant or loan, adopted and passed an airport hazard zoning ordinance or order approved by the State; and it will provide upon request of the State, the engineering or planning consultant, and the FAA copies of any maps, plans, or reports of the project site, applicable to or affecting the above project; and after reasonable notice, it will permit the State, the FAA, and any consultants and contractors associated with this project, access to the project site, and will obtain permission for the State, the FAA, and consultants and contractors associated with this project, to enter private property for purposes necessary to this project; and all development of an airport constructed with program funds shall be consistent with the Airport Layout Plan approved by the State and maintained by the Sponsor. A reproducible copy of such plan, and all subsequent modifications, shall be filed with the State for approval; and it shall take all steps, including litigation if necessary, to recover funds spent fraudulently, wastefully, or in violation of Federal antitrust statutes, or misused in any other manner in any project upon which Federal and State funds have been expended. For the purposes of this grant agreement, the term "funds" means funds, however used or disbursed by the Sponsor or Agent that were originally paid pursuant to this or any other grant agreement. It shall obtain the approval of the State as to any determination of the amount of such funds. It shall return the recovered share, including funds recovered by settlement, order or judgment, to the State. It shall furnish to the State, upon request, all documents and records pertaining to the determination of the amount of the funds or to any settlement, litigation, negotiation, or other efforts taken to recover such funds. All settlements or other final positions of the Sponsor, in court or otherwise, involving the recovery of such funds shall be approved in advance by the State. Page 6 of 25 The Sponsor certifies to the State that it will have acquired clear title in fee simple to all property upon which construction work is to be performed, or have acquired a leasehold on such property for a term of not less than 20 years, prior to the advertisement for bids for such construction or procurement of facilities that are part of the above project, and within the time frame of the project, a sufficient interest (easement or otherwise) in any other property which may be affected by the project. The Sponsor, to the extent of its legal authority to do so, shall save harmless the State, the State's agents, employees or contractors from all claims and liability due to activities of the Sponsor, the Sponsor's agents or employees performed under this agreement. The Sponsor, to the extent of its legal authority to do so, shall also save harmless the State, the State's agents, employees or contractors from any and all expenses, including attorney fees which might be incurred by the State in litigation or otherwise resisting the claim or liabilities which might be imposed on the State as the result of such activities by the Sponsor, the Sponsor's agents or employees. The Sponsor's acceptance of this Offer and ratification and adoption of the Agreement incorporated shall be evidenced by execution of this instrument by the Sponsor, and the Agreement shall comprise a contract, constituting the obligations and rights of the State of Texas and the Sponsor with respect to the accomplishment of the project and the operation and maintenance of the airport. Such Agreement shall become effective upon execution of this instrument and shall remain in full force and effect for a period of at least 20 years. Sponsor agrees to provide a suitable location for pre-bid and for pre-construction conferences, and for the submission and opening of construction bids. The Sponsor and not the State shall, for all purposes, be the "Sponsor" of the project identified above as defined in Title 49 U.S.C. Sponsor agrees to assume responsibility for operation of the facility in compliance with all applicable state and federal requirements including any statutes, rules, regulations, assurances, procedures or any other directives before, during and after the completion of this project. The Sponsor shall have on file with the State a current and approved Attorney's Certificate of Airport Property Interests and Exhibit A property map. The Sponsor shall have on file with the State, Attachment C, Certification Regarding Drug-Free Workplace Requirements, attached and made part of this agreement. Unless otherwise approved by the State, the Sponsor will not acquire or permit any contractor or subcontractor to acquire any steel or manufactured products produced outside the United States to be used for any project for airport development or noise compatibility for which funds are provided under this grant. The sponsor will include in every contract a provision implementing this special condition. Page 7 of 25 10. SPECIAL CONDITION: Except for instrument landing systems acquired with AlP funds and later donated to and accepted by the FAA, the Sponsor must provide for the continuous operation and maintenance of any navigational aid funded under the AlP during the useful life of the equipment. The sponsor must check the facility, including instrument landing systems, prior to commissioning to ensure it meets the operational standards. The Sponsor must also remove, relocate, or lower each obstruction on the approach or provide for the adequate lighting or marking of the obstruction if any aeronautical study conducted under FAR Part 77 determines that to be acceptable; and mark and light the runway, as appropriate. The Federal Aviation Administration will not take over the ownership, operation, or maintenance of any sponsor- acquired equipment, except for instrument landing systems. 11. SPECIAL CONDITION: For a project to replace or reconstruct pavement at the airport, the Sponsor shall implement an effective airport pavement maintenance management program as is required by Airport Sponsor Assurance Number 11. The sponsor shall use such program for the useful life of any pavement constructed, reconstructed, or repaired with Federal financial assistance at the airport. As a minimum, the program must conform to the provisions in Attachment D "Pavement Maintenance Management Program", attached and made part of this agreement. 12. The Sponsor may utilize paving specifications meeting State Highway criteria for runways at non-primary airports with lengths up to 5,000 feet and serving aircraft not exceeding 60,000 pounds gross take-off weight. The sponsor agrees not to request additional AlP funds for reconstruction or rehabilitate of pavement construct utilizing State specification for 10 years from pavement acceptance. Part IV- Nomination of the Agent The Sponsor designates the State as the party to apply for, receive and disburse all funds used, or to be used, in payment of the costs of the project, or in reimbursement to either of the parties for costs incurred. The State agrees to assume the responsibility to assure that all aspects of the grant are done in compliance with all applicable state and federal requirements including any statutes, rules, regulations, assurances, procedures or any other directives, except as otherwise specifically provided. The State shall, for all purposes in connection with the project identified above, be the Agent of the Sponsor. The Sponsor grants the State a power of attorney to act as its agent to perform the following services: Receiving Disbursing Agent: a. apply for, accept, receive, and deposit with the State Treasury any and all project funds granted, allowed, and paid or made available by the State and/or the United States under Title 49 U.S.C. and congressional appropriation; Page 8 of 25 receive, review, approve and process Sponsor's reimbursement requests for approved project costs; and pay to the Sponsor, from granted funds, the portion of any approved reasonable and eligible project costs incurred by the Sponsor that are in excess of the Sponsor's share. Paying Agent: d. receive, review, approve and pay invoices and payment requests for services and materials supplied in accordance with State executed contracts; Contracting Agent: e. advertise for professional engineering and/or planning services for, but not limited to, the preparation of planning studies, plans and specifications for the above project and for the management of the construction of the above project; certify consultant selection procedures; provide notification of contract award for professional services; and negotiate professional services fees; and execute, on behalf of the Sponsor, a professional services agreement as related to this project; administer Disadvantage Business Enterprises (DBE) and/or Historically Underutilized Business (HUB) Programs in accordance with federal and state regulations. Contract Management Agent: g. exercise such supervision and direction of the project work as the State reasonably finds appropriate. Where there is an irreconcilable conflict or difference of opinion, judgment, order or direction between the State and the Sponsor, any engineer, contractor, or materialman, the State shall issue a written order, which shall prevail and be controlling; coordinate and review project plans, specifications and construction; coordinate and conduct progress and final inspections. Construction Phase: i. authorize the advertisement, receipt and opening of bids for construction of the above project; and award contracts for construction of the above project and acquisition of materials related to it; and execute, on behalf of the Sponsor, construction contracts as related to this project; participate in pre-bid and pre-construction conferences; and issue orders as it deems appropriate regarding construction progress, including but not limited to Notices to Proceed, Stop Work Orders, and Change Orders; k. review, approve and maintain record drawings. PART V - Recitals Page 9 of 25 1. The State and the Sponsor shall obtain an audit as required by federal or state regulations. The Sponsor, and not the State, shall be the contractual party to all construction and professional service contracts entered into for the accomplishment of this project. The power of attorney, as granted by the Sponsor to the State in Part IV - Nomination of Agent, is a limited power to perform acts in connection with airport improvements as specified in or necessitated by this Agreement. The Sponsor agrees to pursue and enforce contract items, which are required by federal and/or state regulations, laws and orders to insure satisfactory performance of contract vendors. Such items include, but are not limited to, bid bonds, payment bonds, and performance bonds. Pursuit and enforcement of contract items may require litigation and other remedies of law. The United States and the State of Texas shall not be responsible or liable for damage to property or injury to persons which may arise from, or be incidental to, compliance with this grant agreement. This Agreement is executed for the sole benefit of the contracting parties and is not intended or executed for the direct or incidental benefit of any third party. Furthermore, the State shall not be a party to any other contract or commitment, which the Sponsor may enter into or assume, or have entered into or have assumed, in regard to the above project. If the Sponsor fails to comply with the conditions of the grant, the State may, by written notice to the Sponsor, suspend the grant in whole or in part. The notice of suspension shall contain the following: The reasons for the suspension and the corrective action necessary to lift the suspension; b. A date by which the corrective action must be taken; Notification that consideration will be given to terminating the grant after the corrective action date. In the case of suspension or termination, the Sponsor may request the State to reconsider the suspension or termination. Such request for reconsideration shall be made within 45 days after receipt of the notice of suspension or termination. This Agreement is subject to the applicable provisions of Title 49 U.S.C., the V.T.C.A. Transportation Code, Title 3, Chapters 21- 22, et seq., (Vernon and Vernon Supp.), and the Airport Zoning Act, Tex. Loc. Govt. Code Ann. §§ 241.001 et seq. (Vernon and Vernon Supp.). Failure to comply with the terms of this Agreement or with the rules and statutes shall be considered a breach of this contract and will allow the State to pursue he remedies for breach as stated below. Page 10 of 25 Of primary importance to the State is compliance with the terms and conditions of this Agreement. If, however, after all reasonable attempts to require compliance have failed, the State finds that Sponsor is unwilling and/or unable to comply with any of the terms and conditions of this Agreement, the State may pursue any of the following remedies: (1) require a refund of any money expended pursuant to the Agreement, (2) deny Sponsor's future requests for aid, (3) request the Attorney General to bring suit seeking reimbursement of any money expended on the project pursuant to the Agreement, provided however, these remedies shall not limit the State's authority to enforce its rules, regulations or orders as otherwise provided by law, (4) declare this Agreement null and void, or (5) any other remedy available at law or in equity. Venue for resolution by a court of competent jurisdiction of any dispute arising under the terms of this Agreement, or for enforcement of any of the provisions of this Agreement, is specifically set by Agreement of the parties in Travis County, Texas. The State reserves the right to amend or withdraw this Agreement at any time prior to acceptance by the Sponsor. The acceptance period cannot be greater than 30 days after issuance unless extended by the State, which extension shall not be unreasonably be denied or delayed. This Agreement constitutes the full and total understanding of the parties conceming their rights and responsibilities in regard to this project and shall not be modified, amended, rescinded or revoked unless such modification, amendment, rescission or revocation is agreed to by both parties in writing and executed by both parties. 10. All commitments by the Sponsor and the State are subject to constitutional and statutory limitations and restrictions binding upon the Sponsor and the State (including §§ 5 and 7 of Article 11 of the Texas Constitution, if applicable) and to the availability of funds which lawfully may be applied. 11. The Sponsor's acceptance of this Agreement and ratification and adoption of the Airport Project Participation Agreement shall be evidenced by execution of this instrument by the Sponsor. This Offer and Acceptance shall comprise a Gram Agreement, as provided by the Title 49 U.S.C., constituting the contractual obligations and rights of the United States, the State of Texas and the Sponsor with respect to the accomplishment of the Project and compliance with the assurances and conditions as provided. 12. The state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under the contract or indirectly through a subcontract under the contract. Acceptance of funds directly under the contract or indirectly through a subcontract under this contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. Page 11 of 25 Part VI - Acceptance of the Sponsor The City of Denton, Texas, does ratify and adopt all statements, representations, warranties, covenants and agreemems constituting the described project and incorporated materials referred to in the Agreemem, and does accept the Offer, and agrees to all of the terms and conditions of the Agreement. Executed this day of ,20 The CiW of Denton, Texas Sponsor Wimess Signature Sponsor Signature Wimess Title Sponsor Title Certificate of Sponsor's Attorney I .... acting as attorney for , Texas, do certify that I have fully examined the Agreemem and the proceedings token by the Sponsor relating, and fred that the manner of acceptance and execution, of the Agreemem by the Sponsor, is in accordance with the laws of the State of Texas. Dated at ., Texas, this __ day of ., 20 Wimess Signature Attorney Signature Wimess Title Page 12 of 25 Part VII - Acceptance of the State Executed by and approved for the Texas Transportation Commission for the purpose and effect of activating and/or carrying out the orders, established policies or work programs and grants heretofore approved and authorized by the Texas Transportation Commission. STATE OF TEXAS TEXAS DEPARTMENT OF TRANSPORTATION By: Date: Page 13 of 25 ATTACHMENT A CERTIFICATION OF AIRPORT FUND The Sponsor does certify that an Airport Fund has been established for the Sponsor, and that all fees, charges, rents, and money from any source derived from airport operations will be deposited for the benefit of the Airport Fund and will not be diverted lbr other general revenue fund expenditures or any other special fund of the Sponsor and that all expenditures from the Fund will be solely for airport purposes. Such fund may be an account as part of another fund, but must be accounted for in such a manner that all revenues, expenses, retained earnings, and balances in the account are discernible from other types of moneys identified in the fund as a whole. The CiW of Denton, Texas (Sponsor) By:. Title: Date: Page 14 of 25 ATTACHMENT B PART V ASSURANCES Airport Sponsors General. 1. 2. These assuramces shall be complied with in the performance of gramt ag-reements for airport development, airport plamning, amd noise compatibility prog-ram g-rants for airport sponsors. These assurances are requked to be submitted as part of the project Airport Project Pm'ticipation Ag-reement (hereinafter referred to as "APPA') by sponsors requesting funds under the provisions of Title 49, U.S.C., subtitle VII, as amended. As used herein, the term "public agency sponsor" means a public agency with control of a public-use airport; the term "private sponsor" means a private owner of a public-use airport; amd the term "sponsor" includes both public agency sponsors and private sponsors. 3. Upon acceptamce of the g-ramt offer by the sponsor, these assuramces m'e incorporated in anad become pm't of the grant ag-reement. B. Duration and Applicability. 1. Airport development or Noise Compatibility Program Projects Undertaken by a Public Agency Sponsor. The terms, conditions amd assurances of the g-rant agreement shall remain in full force amd effect throughout the useful life of the facilities developed or equipment acquired for an airport development or noise compatibility prog-ram project, or throughout the useful life of the project items installed within a facility under a noise compatibility program project, but in any event not to exceed twenty (20) yem's from the date of acceptance of a grant offer of Federal funds for the project. However, there shall be no linfit on the duration of the assuramces regm'ding Exclusive Rights and Airport Revenue so long as the airport is used as an airport. There shall be no limit on the duration of the terms, conditions, amd assuramces with respect to real property acquired with federal funds. Furthermore, the duration of the Civil Rights assuramce shall be specified in the assurances. 2. Airport Development or Noise Compatibility Projects Undertaken by a Private Sponsor. The preceding pm'ag-raph 1 also applies to a private sponsor except that the useful life of project items installed within a facility or the useful life of the facilities developed or equipment acquired under am airport development or noise compatibility prog-ram project shall be no less tham ten (10) yem's from the date of acceptamce of Federal aid for the project. 3. Airport Planning Undertaken by a Sponsor. Unless otherwise specified in the grant ag-reement, only Assurances 1, 2, 3, 5, 6, 13, 18, 30, 32, 33, and 34 in section C apply to planning projects. The terms, conditions, amd assurances of the g, ramt agreement shall remain in full force amd effect during the life of the project. C. Sponsor Certification. The sponsor hereby assures and certifies, with respect to this g-carat that: 1. General Federal Requirements. It will comply with all applicable Federal laws, regulations, executive orders, policies, guidelines, amd requirements as they relate to the project, acceptance amd use of Federal funds for this project including but not limited to the following: Federal Legislation a. Title 49, U.S.C., subtitle VII, as amended. b. Davis-Bacon Act - 40 U.S.C. 276(a), et seq) c. Federal Fair Labor Standards Act - 29 U.S.C. 201, et seq. d. Hatch Act- 5 U.S.C. 1501, et seq.~' e. Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 Title 42 U.S.C. 4601, et seq) ~' £ National Historic Preservation Act of 1966 - Section 106 - 16 U.S.C. 470(f). ~ g. Archeological amd Historic Preservation Act of 1974 - 16 U.S.C. 469 through 469c. ~ h. Native Americams Grave Repatriation Act - 25 U.S.C. Section 3001, et seq. i. Clean Air Act, P.L. 90-148, as amended. j. Coastal Zone Management Act, P.L. 93-205, as amended. k. Flood Disaster Protection Act of 1973 - Section 102(a) - 42 U.S.C. 4012a. ~ 1. Title 49 ,U.S.C., Section 303, (formerly known as Section 4(f)) m. Rehabilitation Act of 1973 - 29 U.S.C. 794. n. Civil Rights Act of 1964 - Title VI - 42 U.S.C. 2000d through d4. o. Age Dischmination Act of 1975 - 42 U.S.C. 6101, et seq. p. American Indian Religious Freedom Act, P.L. 95-341, as amended. q. Architectural Barriers Act of 1968 -42 U.S.C. 4151, et seq) r. Power plaint and Industrial Fuel Use Act of 1978 - Section 403- 2 U.S.C. 8373) s. Contract Work Hours and Safety Standards Act - 40 U.S.C. 327, et seq) t. Copelamd Antikickback Act- 18 U.S.C. 874. ~ u. National Environmental Policy Act of 1969 - 42 U.S.C. 4321, et seq) v. Wild and Scenic Rivers Act, P.L. 90-542, as amended. w. Single Audit Act of 1984 - 31 U.S.C. 7501, et seq.2 x. Drug-Free Workplace Act of 1988 - 41 U.S.C. 702 through 706. Executive Orders Executive Order 11246 - Equal Employment Opportunity ~ Executive Order 11990 - Protection of Wetlands Executive Order 11998 Flood Plain Management Executive Order 12372 - Intergoverrmaental Review of Federal Programs. Executive Order 12699 - Seismic Safety of Federal amd Federally Assisted New Building Construction Executive Order 12898 - Envirormaental Justice Federal Regulations a. 14 CFR Part 13 - Investigative and Enforcement Procedures. b. 14 CFR Part 16 - Rules of Practice For Federally Assisted Airport Enforcement Proceedings. Page 15 of 25 c. 14 CFR Part 150 - Airport noise compatibility planning. d. 29 CFR Part 1 - Procedures for predetem~thation of wage rates? e. 29 CFR Part 3 - Contractors and subcontractors on public building or public work fmamced in whole or part by loams or gramts fi'om the United States.~ f 29 CFR Part 5 - Labor stamdm'ds provisions applicable to contracts covering federally fmamced and assisted construction (also labor stamdards provisions applicable to non-construction contracts subject to the Contract Work Hours amd Safety Standards Act). ~ g. 41 CFR Part 60 - Office of Federal Contract Compliamce Programs, Equal Employment Opportunity, Deparm~ent of Labor (Federal amd federally assisted contracting reqmrements). 49 CFR Part 18 - Unifom~ administrative requirements for grants and cooperative agreements to state amd local 49 CFR Part 20 - New restrictions on lobbying. 49 CFR Part 21 - Nondischmination in federally-assisted programs of the Deparm~ent of Transportation - effectuarion of Title VI of the Civil Rights Act of 1964. 49 CFR Part 23 - Paxticipation by Disadvamtage Business Enterprise in Airport Concessions. 49 CFR Part 24 -Unifom~ relocation assistance and real property acquisition for Federal and federally assisted programs. 49 CFR Part 26 Paxticipation By Disadvantaged Business Enterprises in Depaztment of Transportation Programs. 49 CFR Part 27 - Nondiscrimination on the basis of handicap in program, s amd activities receiving or benefiting from Federal financial assistamce. ~ o. 49 CFR Part 29 Government wide debaxment and suspension (non-procurement) and government wide requirements for drag-free workplace (g-tarots). p. 49 CFR Part 30 - Denial of public works contracts to suppliers of goods and services of countries that deny procurement maxket access to U.S. contractors. q. 49 CFR Part 41 - Seismic safety of Federal amd federally assisted or regulated new bufldmg construction. Office of Management and Budget Circulars a. A-87 - Cost Principles Applicable to Grants and Contracts with State and Local Governments. b. A-133 - Audits of States, Local Governments, amd Non-Profit Organizations (1) These laws do not apply to airport planning sponsors. (2) These laws do not apply to private sponsors. (3) 49 CFR Part 18 and OMB Circular A-87 contain requirements for State amd Local Governments receiving Federal assistance. Any requirement levied upon State and Local Governments by this regulation and circulax shall also be applicable to private sponsors receiving Federal assistamce under Title 49, United States Code. Specific assuramces required to be included in g, ramt agreements by amy of the above laws, regulations or circulaxs are incorporated by reference in the g, ramt agreement. Responsibility and Authority of the Sponsor. a. Public Agency Sponsor: It has legal authority to apply for the grant, and to finance amd caxry out the proposed project; that a resolution, motion or sinfilar action has been duly adopted or passed as an official act of the applicant's governing body authorizing the filing of the APPA, including all understamdings and assurances contained therein, amd directing and authorizing the person identified as the official representative of the applicant to act in connection with the APPA and to provide such additional infom~ation as may be required. b. Private Sponsor: It has legal authority to apply for the grant amd to fmamce amd caxry out the proposed project and comply with all temps, conditions, and assurances of this grant agreement. It shall desigmate am official representative and shall in writing direct and authorize that person to file this APPA, including all understandings and assurances contained therein; to act in connection with this APPA; and to provide such additional information as may be required. Sponsor Fund Availability. It has sufficient funds available for that portion of the project costs which are not to be paid by the United States. It as sufficient funds available to assure operation and maintenamce of items funded under the grant agreement which it will own or control. Good Title. a. It, a public agency or the Federal government, holds good rifle, satisfactory to the Secretaxy, to the landing axea of the airport or site thereof, or will give assurance satisfactory to the Secretaxy that good title will be acquired. b. For noise compatibility program projects to be carried out on the property of the sponsor, it holds good title satisfactory to the Secretary to that portion of the property upon which Federal funds will be expended or will give assurance to the Secretary that good title will be obtained. Preserving Rights and Powers. a. It will not take or pemfit amy action which would operate to deprive it of any of the rights amd powers necessary to perfom~ amy or all of the terms, conditions, amd assurances in the g, ramt agreement without the written approval of the Secretary, and will act prompfly to acquire, extinguish or modify any outstanding rights or claims of right of others which would interfere with such performamce by the sponsor. This shall be done in a mamner acceptable to the Secretaxy. b. It will not sell, lease, encumber, or otherwise transfer or dispose of amy paxt of its title or other interests in the property shown on Exhibit A to this APPA or, for a noise compatibility program project, that portion of the property upon which Federal funds have been expended, for the duration of the temps, conditions, and assurances in the g, ramt agreement without approval by the Secretaxy. If the tramsferee is found by the Secretary to be eligible under Title 49, United States Code, to assume the obligations of the grant agreement and to have the power, authority, and financial resources to carry out all such obligations, the sponsor shall insert in the contract or docnn~ent transferring or disposing Page 16 of 25 10. 11. 12. 13. 14. 15. of the sponsor's interest, and make binding upon the transferee all of the terms, conditions, and assuramces contained in this grant agreement. For all noise compatibility program projects which axe to be carried out by amother unit of local govenm~ent or are on property owned by a unit of local goverrm~ent other than the sponsor, it will enter into an agreement with that govenm~ent. Except as otherwise specified by the Secretaxy, that agreement shall obligate that government to the sarape terms, conditions, amd assuramces that would be applicable to it if it applied directly to the FAA for a grant to undertake the noise compatibility program project. That agreement and chamges thereto must be satisfactory to the Secretary. It will take steps to enforce this agreement against the local govenm~ent if there is substantial non- compliamce with the terms of the agreement. For noise compatibility program projects to be carried out on privately owned property, it will enter into an agreement with the owner of that property which includes provisions specified by the Secretary. It will take steps to enforce this agreement against the property owner whenever there is substamtial non-compliamce with the terms of the agreement. If the sponsor is a private sponsor, it will taJce steps satisfactory to the Secretary to ensure that the airport will continue to function as a public-use airport in accordamce with these assuramces for the duration of these assuramces. If am axramgement is made for management and operation of the airport by any agency or person other tham the sponsor or am employee of the sponsor, the sponsor will reserve sufficient rights amd authority to insure that the airport will be operated and maintained in accordamce Title 49, United States Code, the r%,mlations and the terms, conditions and assuramces in the gramt agreement and shall insure that such arrangement also requires compliance therewith. Consistency with Local Plans. The project is reasonably consistent with plans (existing at the time of submission of this APPA) of public agencies that axe authorized by the State in which the project is located to plan for the development of the area surrounding the airport. Consideration of Local Interest. It has given fair consideration to the interest of conm~unities in or near where the project may be located. Consultation with Users. In making a decision to undertake any airport development project under Tire 49, United States Code, it has undertaJcen reasonable consultations with affected parties using the airport at which project is proposed. Public Hearings. In projects involving the location of an airport, am airport runway, or a major runway extension, it has afforded the opportunity for public hearings f~r the purpose of considering the economic, social, amd envirorm~ental effects of the airport or runway location and its consistency with goals amd objectives of such plarming as has been cazried out by the conm~unity and it shall, when requested by the Secretm'y, submit a copy of the tramscript of such hearings to the Secretary. Further, for such projects, it has on its management board either voting representation from the conm~unities where the project is located or has advised the communities that they have the right to petition the Secretary concerning a proposed project. Air and Water Quality Standards. In projects involving airport location, a major runway extension, or runway location it will provide for the Governor of the state in which the project is located to certify in writing to the Secretary that the project will be located, designed, constructed, amd operated so as to comply with applicable air and water quality standm'ds. In any case where such standards have not been approved and where applicable air and water quality stamdm'ds have been promulgated by the Administrator of the Envirorm~ental Protection Agency, certification shall be obtained from such Administrator. Notice of certification or refusal to certify shall be provided within sixty days after the project APPA has been received by the Secreta~. Pavement Preventive Maintenance. With respect to a project approved after Jamuaxy 1, 1995, for the replacement or reconstruction of pavement at the airport, it assures or certifies that it has implemented an effective airport pavement maintenamce- mamagement program~ and it assures that it will use such program for the useful life of amy pavement constructed, reconstructed or repaired with Federal £mancial assistance at the airport. It will provide such reports on pavement condition and pavement mamagement program, s as the Secretary determines may be useful. Terminal Development Prerequisites. For projects which include terminal development at a public use airport, as de£med in Title 49, it has, on the date of submittal of the project gramt request, all the safety equipment required for certification of such airport under section 44706 of Title 49, United States Code, and all the security equipment required by rule or r%,mlation, and has provided for access to the passenger enplaning amd deplaning m'ea of such airport to passengers enplaming and deplaming from aircraft other than air caxrier aircraft. Accounting System, Audit, and Record Keeping Requirements. a. It shall keep all project accounts amd records which fully disclose the amount and disposition by the recipient of the proceeds of the grant, the total cost of the project in cormection with which the grant is given or used, and the am~ount or nature of that portion of the cost of the project supplied by other sources, amd such other fmamcial records pertinent to the project. The accounts amd records shall be kept in accordance with an accounting system that will facilitate am effective audit in accordance with the Single Audit Act of 1984. b. It shall maJce available to the Secretm'y and the Comptroller General of the United States, or amy of their duly authorized representatives, for the purpose of audit amd exa~fination, amy books, docun~ents, papers, and records of the recipient that are pertinent to the grant. The Secretaxy may require that an appropriate audit be conducted by a recipient. In amy case in which am independent audit is made of the accounts of a sponsor relating to the disposition of the proceeds of a gramt or relating to the project in connection with which the gramt was given or used, it shall file a certified copy of such audit with the Comptroller General of the United States not later tham six (6) months following the close of the fiscal yem' for which the audit was made. Minimum Wage Rates. It shall include, in all contracts in excess of $2,000 for work on amy projects funded under the grant agreement which involve labor, provisions establishing minimum rates of wages, to be predetermined by the Secretaxy of Labor, in accordance with the Davis-Bacon Act, as amended (40 U.S.C. 276a-276a-5), which contractors shall pay to skilled and unskilled labor, and such minimum rates shall be stated in the invitation for bids and shall be included in proposals or bids for the work. Veteran's Preference. It shall include in all contracts for work on any project funded under the gramt agreement which involve labor, such provisions as are necessaxy to insure that, in the employment of labor (except in executive, administrative, amd Page 17 of 25 16. 17. 18. 19. 20. 21. 22. supervisory positions), preference shall be given to Vetermas of the Vietnam era amd disabled veterans as defined in Section 47112 of Title 49, United States Code. However, this preference shall apply only where the individuals are available amd qualified to perform the work to which the employment relates. Conformity to Plans and Specifications. It will execute the project subject to plans, specifications, amd schedules approved by the Secretary. Such plans, specifications, and schedules shall be submitted to the Secretary prior to conm~encement of site preparation, construction, or other performmace under this grant agreement, and, upon approval of the Secretary, shall be incorporated into this grant agreement. Any modification to the approved plans, specifications, and schedules shall also be subject to approval of the Secretary, amd incorporated into the grmat agreement. Construction Inspection and Approval. It will provide and maintain competent technical supervision at the construction site throughout the project to assure that the work conforms to the plans, specifications, and schedules approved by the Secretaxy for the project. It shall subject the construction work on any project contained in an approved project APPA to inspection and approval by the Secretary amd such work shall be in accordance with regulations amd procedures prescribed by the Secretary. Such regulations and procedures shall require such cost amd progress reporting by the sponsor or sponsors of such project as the Secretary shall deem necessaxy. Planning Projects. In cmrying out plmaning projects: a. It will execute the project in accordance with the approved program narrative contained in the project APPA or with the modifications similarly approved. b. It will furnish the Secretary with such periodic reports as required pertaining to the planning project and plmaning work activities. c. It will include in all published material prepared in connection with the planning project a notice that the material was prepased under a grmat provided by the United States. d. It will maJce such material available for examination by the public, amd agrees that no material prepased with funds under this project shall be subject to copyright in the United States or any other country. e. It will give the Secretary unrestricted authority to publish, disclose, distribute, and otherwise use any of the material prepared in connection with this grant. £ It will grant the Secretary the right to disapprove the sponsor's employment of specific consultants anad their subcontractors to do all or any past of this project as well as the right to disapprove the proposed scope and cost of professional services. g. It will [,,rant the Secretary the right to disapprove the use of the sponsor's employees to do all or anay past of the project. h. It understmads amd agrees that the Secretary's approval of this project g'rmat or the Secretaxy's approval of amy planning material developed as part of this grant does not constitute or imply any assurance or conmfitment on the past of the Secretary to approve amy pending or furore request for a Federal airport grant. Operation and Maintenance. a. The airport amd all facilities which are necessaxy to serve the aeronautical users of the airport, other than facilities owned or controlled by the United States, shall be operated at all times in a safe amd serviceable condition amd in accordmace with the minimun~ stmadasds as may be required or prescribed by applicable Federal, state amd local agencies for maintenmace and operation. It will not cause or permit any activity or action thereon which would interfere with its use for airport purposes. It will suitably operate amd maintain the airport and all facilities thereon or connected therewith, with due regard to climatic and flood conditions. Any proposal to temporaxily close the airport for non-aeronautical purposes must first be approved by the Secretary. In furthermace of this assurance, the sponsor will have in effect arrmagements for- (l) Operating the airport's aeronautical facilities whenever required; (2) Promptly masking and lighting hazards resulting from airport conditions, including temporary conditions; and (3) Promptly notifying airmen of any condition affecting aeronautical use of the airport. Nothing contained herein shall be construed to ~equire that the airport be operated for aeronautical use during temporaxy periods when snow, flood or other climatic conditions interfere with such operation amd maintenmace. Further, nothing herein shall be construed as requiting the maintenance, repair, restoration, or replacement of amy structure or facility which is substantially damaged or destroyed due to an act of God or other condition or circun~stance beyond the control of the sponsor. b. It will suitably operate and maintain noise compatibility prog'ram items that it owns or controls upon which Federal funds have been expended. Hazard Removal and Mitigation. It will take appropriate action to assure that such terminal airspace as is required to protect instrument and visual operations to the airport (including established minimum flight altitudes) will be adequately cleared and protected by removing, lowering, relocating, marking, or lighting or otherwise mitigating existing airport hazasds amd by preventing the establishment or creation of future airport hazasds. Compatible Land Use. It will take appropriate action, to the extent reasonable, including the adoption of zoning laws, to restrict the use of land adjacent to or in the inm~ediate vicinity of the airport to activities and purposes compatible with normal airport operations, including landing and takeoff of aircraft. In addition, if the project is for noise compatibility prog'ram implementation, it will not cause or permit any change in lmad use, within its jurisdiction, that will reduce its compatibility, with respect to the airport, of the noise compatibility prog,ram measures upon which Federal funds have been expended. Economic Nondiscrimination. a. It will maJce the airport available as an airport for public use on reasonable terms amd without unjust discrimination to all types, kinds amd classes of aeronautical activities, including conm~ercial aeronautical activities offering services to the public at the airport. b. In anay ag,reement, contract, lease, or other axrmagement under which a right or privilege at the airport is g,rmated to anay person, firm, or corporation to conduct or to engage in any aeronautical activity for furnishing services to the public at the airport, the sponsor will insert amd enforce provisions requiring the contractor to- Page 18 of 25 23. 24. 25. 26. (1) furnish said services on a reasonable, amd not unjustly discriminatory, basis to all users thereof, and (2) change reasonable, and not unjustly discfimthatory, prices for each unit or service, provided that the contractor may be allowed to maJ~e reasonable and nondiscfimthatory discounts, rebates, or other similar types of pfice reductions to volume purchasers. c. Each fixed-based operator at the airport shall be subject to the sarape rates, fees, rentals, amd other charges as axe unifom~ly applicable to all other fixed-based operators making the same or similm' uses of such airport and utilizing the same or sinfilar facilities. d. Each air cmTier using such airport shall have the fight to service itself or to use amy fixed-based operator that is authorized or pemfitted by the airport to serve any air cmTier at such airport. e. Each air cmTier using such airport (whether as a tenamt, nontenamt, or subtenant of amother air carrier tenamt) shall be subject to such nondiscfiminatory and substantially comparable roles, regulations, conditions, rates, fees, rentals, and other charges with respect to facilities directly amd substantially related to providing air transportation as are applicable to all such air carriers which make similar use of such airport and utilize sinfilar facilities, subject to reasonable classifications such as tenants or nontenants amd sigmatory carriers and nonsignatory cmfiers. Classification or stares as tenant or sigmatory shall not be umeasonably withheld by any airport provided am air cmTier assumes obligations substantially similar to those already imposed on air carriers in such classification or status. £ It will not exercise or grant amy fight or privilege which operates to prevent amy person, fnma, or corporation operating aircralt on the airport from perforating any services on its own aircraft with its own employees [including, but not limited to maintenance, repair, amd fueling] that it may choose to perfom~. g. In the event the sponsor itself exercises amy of the fights amd privileges referred to in this assurance, the services involved will be provided on the same conditions as would apply to the furnishing of such services by conm~ercial aeronautical service providers authorized by the sponsor under these provisions. h. The sponsor may establish such reasonable, and not unjustly discfiminatory, conditions to be met by all users of the airport as may be necessm'y for the safe amd efficient operation of the airport. i. The sponsor may prohibit or lin~it any given type, kind or class of aeronautical use of the airport if such action is necessary for the safe operation of the airport or necessary to serve the civil aviation needs of the public. Exclusive Rights. It will permit no exclusive right for the use of the airport by amy person providing, or intending to provide, aeronautical services to the public. For purposes of this paragraph, the providing of the services at an airport by a single fixed-based operator shall not be construed as an exclusive fight if both of the following apply: a. It would be unreasonably costly, burdensome, or in, practical for more tham one fixed-based operator to provide such services, and b. If allowing more than one fixed-based operator to provide such services would require the reduction of space leased pursuant to an existing agreement between such single fixed-based operator amd such airport. It further ag, zees that it will not, either directly or indirectly, g-rant or permit any person, fim~, or corporation, the exclusive fight at the airport to conduct amy aeronautical activities, including, but not lin~ited to charter flights, pilot training, aircraft rental and sightseeing, aerial photography, crop dusting, aerial advertising and surveying, air carrier operations, aircraft sales amd services, sale of aviation petroleun~ products whether or not conducted in conjunction with other aeronautical activity, repair amd maintenamce of aircraft, sale of aircraft pm'ts, and amy other activities which because of their direct relationship to the operation of a;rrcra~ cam be regm'ded as am aeronautical activity, and that it will tem~inate any exclusive fight to conduct aaa aeronautical activity now existing at such aaa airport before the gramt of any assistamce under Title 49, United States Code. Fee and Rental Structure. It will maintain a fee and rental structure for the facilities amd services at the airport which will maJ~e the airport as sell:sustaining as possible under the circumstances existing at the particular airport, taxing into account such factors as the volun~e of traffic and economy of collection. No pant of the Federal shm'e of aaa airport development, airport planning or noise compatibility project for which a grant is made under Title 49, United States Code, the Airport and Airway In~provement Act of 1982, the Federal Airport Act or the Airport and Airway Development Act of 1970 shall be included in the rate basis in establishing fees, rates, amd changes for users of that airport. Airport Revenues. a. All revenues generated by the airport amd any local taxes on aviation fuel established after December 30, 1987, will be expended by it for the capital or operating costs of the airport; the local airport system; or other local facilities which axe owned or operated by the owner or operator of the airport amd which axe directly and substantially related to the actual air tramsportation of passengers or property; or for noise mitigation purposes on or off the airport. Provided, however, that if covenamts or assurances in debt obligations issued before September 3, 1982, by the owner or operator of the airport, or provisions enacted before September 3, 1982, in governing statutes controlling the owner or operator's financing, provide for the use of the revenues from amy of the airport owner or operator's facilities, including the airport, to support not only the airport but also the airport owner or operator's general debt obligations or other facilities, then this linfitation on the use of all revenues generated by the airport (amd, in the case of a public airport, local taxes on aviation fuel) shall not apply. b. As part of the amnual audit required under the Single Audit Act of 1984, the sponsor will direct that the audit will review, and the resulting audit report will provide an opinion concerning, the use of airport revenue and taxes in pm'ag, zaph (a), amd indicating whether funds paid or tramsferred to the owner or operator are paid or tramsferred in a mauner consistent with Title 49, United States Code and any other applicable provision of law, including any regulation promulgated by the Secretm'y or Administrator. c. Any civil penalties or other samctions will be in, posed for violation of this assurance in accordance with the provisions of Section 47107 of Title 49, United States Code. Reports and Inspections. It will: a. submit to the Secretm'y such annual or special finamcial and operations reports as the Secretary may reasonably request and make such reports available to the public; make available to the public at reasonable tin~es amd places a report of the airport budget in a fore, at prescribed by the Secretary; b. for airport development projects, make the airport and all airport records amd documents affecting the airport, including deeds, leases, operation and use agreements, regulations and other instrun~ents, available fir inspection by any duly authorized agent of the Secretary upon reasonable request; Page 19 of 25 27. 28. 29. 30. 31. for noise compatibility program~ projects, make records and documents relating to the project amd continued compliance with the temps, conditions, and assurances of the g-rant agreement including deeds, leases, agreements, regulations, amd other instrtm~ents, available for inspection by any duly authorized agent of the Secretary upon reasonable request; and in a fore, at amd time prescribed by the Secretaxy, provide to the Secretary amd make available to the public following each of its fiscal years, am amnual report listing in detail: (i) all am~ounts paid by the airport to amy other unit of government and the purposes for which each such payment was made; amd (ii) all services amd property provided by the airport to other units of government and the amount of compensation received for provision of each such service and property. Use by Government Aircraft. It will make available all of the facilities of the airport developed with Federal fmamcial assistamce amd all those usable for landing amd taJ~eoff of aircraft to the United States for use by Government aircraft in conmaon with other aircraft at all tinaes without chm'ge, except, if the use by Government aircraft is substamtial, chm'ge may be made for a reasonable share, proportional to such use, for the cost of operating and maintaining the facilities used. Unless otherwise determined by the Secretary, or otherwise agreed to by the sponsor amd the using agency, substamtial use of an ahport by Government aircraft will be considered to exist when operations of such aircraft m'e in excess of those which, in the opinion of the Secretary, would unduly interfere with use of the lamding m'eas by other authorized aircraft, or during amy calendar month that- a. Five (5) or more Government akcraft are regmlm'ly based at the airport or on land adjacent thereto; or b. The total nunaber of movements (counting each lamding as a movement) of Government aircraft is 300 or more, or the g-ross accunaulative weight of Government aircraft using the airport (the total movement of Government aircraft multiplied by gross weights of such aircraft) is in excess of five million pounds. Land for Federal Facilities. It will furnish without cost to the Federal Government fir use in counection with amy air traffic control or air navigation activities, or weather-reporting and conmaunication activities related to air traffic control, any re'cas of land or water, or estate therein, or rights in buildings of the sponsor as the Secretaxy considers necessary or desirable for construction, operation, amd maintenance at Federal expense of space or facilities for such purposes. Such m'eas or amy portion thereof will be made available as provided herein within four months after receipt of a written request from the Secretaxy. Airport Layout Plan. a. It will keep up to date at all times am airport layout plan of the airport showing (1) boundaries of the airport amd all proposed additions thereto, together with the boundaries of all offsite m'eas owned or controlled by the sponsor for airport purposes and proposed additions thereto; (2) the location and nature of all existing amd proposed airport facilities and structures (such as runways, taxiways, aprons, temfinal buildings, hangm's and roads), including all proposed extensions amd reductions of existing airport facilities; and (3) the location of all existing and proposed nonaviation areas and of all existing inaprovements thereon. Such airport layout plains and each amendment, revision, or modification thereof, shall be subject to the approval of the Secretaxy which approval shall be evidenced by the sigmature of a duly authorized representative of the Secretm'y on the face of the airport layout plan. The sponsor will not make or permit any changes or alterations in the airport or any of its facilities which axe not in confomfity with the airport layout plato as approved by the Secretaxy amd which might, in the opinion of the Secretary, adversely affect the safety, utility or efficiency of the airport. b. If a change or alteration in the airport or the facilities is made which the Secretary detemaines adversely affects the safety, utility, or efficiency of any federally owned, leased, or funded property on or off the airport and which is not in conformity with the airport layout plato as approved by the Secretaxy, the owner or operator will, if requested, by the Secretaxy (1) elinfinate such adverse effect in a mmmer approved by the Secretaxy; or (2) bern' all costs of relocating such property (or replacement thereof) to a site acceptable to the Secretaxy and all costs of restoring such property (or replacement thereof) to the level of safety, utility, efficiency, amd cost of operation existing before the unapproved chamge in the airport or its facilities. Civil Rights. It will comply with such roles as are promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from participating in amy activity conducted with or benefiting fi'om funds received from this g-rant. This assuramce obligates the sponsor for the period during which Federal financial assistamce is extended to the prog-ram, except where Federal financial assistamce is to provide, or is in the roma of personal property or real property or interest therein or structures or inaprovements thereon in which case the assuramce obligates the sponsor or amy tramsferee for the longer of the following periods: (a) the period during which the property is used for a purpose for which Federal finamcial assistamce is extended, or for another purpose involving the provision of sinfilar services or benefits, or (b) the period during which the sponsor retains ownership or possession of the property. Disposal of Land. a. For land purchased under a grant for airport noise compatibility purposes, it will dispose of the lamd, when the land is no longer needed for such purposes, at fair market value, at the em'liest practicable time. That portion of the proceeds of such disposition which is proportionate to the United States' shm'e of acquisition of such land will, at the discretion of the Secretary, 1) be paid to the Secretary for deposit in the Trust Fund, or 2) be reinvested in am approved noise compatibility project as prescribed by the Secretary. b. (1) For lamd purchased under a g,-ramt for airport development purposes (other than noise compatibility), it will, when the lamd is no longer needed for airport purposes, dispose of such land at fair market value or make available to the Secretaxy am amaount equal to the United States' proportionate share of the fair market value of the land. That portion of the proceeds of such disposition which is proportionate to the United States' share of the cost of acquisition of such lamd will, (a) upon application to the Secretary, be reinvested in another eligible airport inaprovement project or projects approved by the Secretary at that airport or within the national airport system, or (b) be paid to the Secretary for deposit in the Trust Fund if no eligible project exists. (2) Lamd shall be considered to be needed for airport purposes under this assuramce if (a) it may be needed for aeronautical purposes (including runway protection zones) or serve as noise buffer lamd, and (b) the revenue from interim uses of such land contributes to the financial sell:sufficiency of the airport. Further, lamd purchased with a g,-ramt received by am airport operator or owner before December 31, 1987, will be considered to be needed for airport purposes if the Secretaxy or Federal agency maJcing such g,-ramt before December 31, 1987, was notified by the operator or owner of the Page 20 of 25 32. 33. uses of such lmad, did not object to such use, and the lmad continues to be used for that purpose, such use having conm~enced no later thma December 15, 1989. Disposition of such land under (a) or (b) will be subject to the retention or reservation of any interest or right therein necessaxy to ensure that such land will only be used for purposes which axe compatible with noise levels associated with operation of the airport. Engineering and Design Services. It will award each contract, or sub-contract for program~ management, construction management, planning studies, feasibility studies, m'chitectural services, preliminaxy engineering, design, engineering, surveying, mapping or related services with respect to the project in the same mariner as a contract for architectural amd engineering services is negotiated under Title LX of the Federal Property and Administrative Services Act of 1949 or an equivalent qualifications-based requirement prescribed for or by the sponsor of the airport. Foreign Market Restrictions. It will not allow funds provided under this gramt to be used to fund any project which uses any product or service of a foreigm country during the period in which such foreign country is listed by the United States Trade Representative as denying fair amd equitable mm'ket opportunities for products and suppliers of the United States in procurement and construction. 34. 35. 36. 37. Policies, Standards, and Specifications. It will carry out the project in accordamce with policies, standm'ds, and specifications approved by the Secretary including but not limited to the advisory circulm's listed in the Current FAA Advisory Circulars for AIP projects, dated 7/1/99 amd included in this grant, amd in accordance with applicable state policies, stamdards, and specifications approved by the Secretm'y. Relocation and Real Property Acquisition. (1) It will be t,mided in acquiring real property, to the greatest extent practicable under State law, by the lamd acquisition policies in Subpart B of 49 CFR Part 24 amd will pay or reimburse property owners for necessary expenses as specified in Subpm't B. (2) It will provide a relocation assistamce program offering the services described in Subpm't C and fair amd reasonable relocation payments amd assistamce to displaced persons as required in Subpart D amd E of 49 CFR Pm't 24. (3) It will make available within a reasonable period of time prior to displacement, compm'able replacement dwellings to displaced persons in accordance with Subpart E of 49 CFR Part 24. Access By Intercity Buses. The airport owner or operator will pemait, to the maximum extent practicable, intercity buses or other modes of transportation to have access to the airport, however, it has no obligation to fund special facilities for intercity buses or for other modes of tramsportation. Disadvantaged Business Enterprises. The recipient shall not discriminate on the basis of race, color, national origin or sex in the awm'd amd perfomaamce of amy DOT-assisted contract or in the administration of its DBE programa or the requirements of 49 CFR Part 26. The Recipient shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure non discrimination in the award and administration of DOT-assisted contracts. The recipient's DBE program, as required by 49 CFR Part 26, and as approved by DOT, is incorporated by reference in this agreement. Implementation of this programa is a legal obligation and failure to cazry out its temas shall be treated as a violation of this agreement. Upon notification to the recipient of its failure to caxry out its approved programa, the Deparmaent may impose sanctions as provided for under Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. tOOt and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801). Page 21 of 25 CURRENT FAA ADVISORY CIRCULARS FOR AlP/PFC PROJECTS The following apply to both AIP and PFC Projects NUMBER 70/7460-1J 150/5000-13 150/5100-14C 150/5200-30A, CHG 1 & 2 150/5200-33 150/5210-5B 150/5210-7B 150/5210-13A 150/5210-14A 150/5210-15 150/5210-18 150/5210-19 150/52204B 150/5220-10B 150/5220-13B 150/5220-16B 150/5220-17A 150/5220-18 150/5220-19 150/5220-20, CHG 1 150/5220-21A 150/5300-13, CHG 1, 2, 3, 4, 5 150/5300-14 150/5300-15 150/5320-5B 150/5320-6D 150/5320-12C 150/5320-14 150/5320-16 150/53254A, CHG 1 150/5340-1G 150/53404C, CHG 1 & 2 150/5340-5B, CHG 1 150/5340-14B, CHG 1 & 2 150/5340-17B 150/5340-18C, CHG 1 150/5340-19 150/5340-21 150/5340-23B 150/5340-24, CHG 1 150/5340-27A 150/5345-3D 150/5345-5A 150/5345-7D, CHG 1 150/5345-10E 150/5345-12C 150/5345-13A 150/5345-26B, CHG 1 & 2 150/5345-27C 150/5345-28D, CHG 1 150/5345-39B, CHG 1 150/534542C, CHG 1 150/534543E 150/534544F, CHG 1 150/534545A 150/534546A 150/534547A 150/534549A 150/5345-50, CHG 1 150/5345-51, CHG 1 150/5345-52 150/5345-53A, (including addendnn~) 150/5360-9 150/5360-12A 150/5360-13, CHG 1 150/5370-2C 150/5370-6B Updated on: 7/1/99 TITLE Obstruction Marking and Lighting Announcement of Availability--RTCA Inc., Document RTCA-221, Guidance and Reconm~ended Requirements for Airport Surface Movement Sensors Architectural, Engineering, and Planning Consultamt Services for Airport Gramt Projects Airport Winter Safety and Operations Hazardous Wildlife Attractants On or Nero' Airports Painting, Mm'king amd Lighting of Vehicles Used on an Airport Aimxa2~ Fire and Rescue Commnnications Water Rescue Plans, Facilities, and Equipment Airport Fire amd Rescue Personnel Protective Clothing Airport Rescue & Firefighting Station Building Desigm Systems for Interactive Training of Airport Personnel Driver's Enhanced Vision System (DEVS) Water Supply Systems for Aircraft Fire and Rescue Protection Guide Specification for Water/Foam Type Aircraft Rescue and Firefighting Vehicles Runway Surface Condition Sensor Specification Guide Automated Weather Observing Systems for NonFederal Applications Desigm Standards for Aircraft Rescue Firefighting Training Facilities Buildings for Storage and Maintenamce of Airport Snow and Ice Control Equipment and Materials Guide Specification for Small, Dual-Agent Aircraft Rescue amd Firefighting Vehicles Airport Snow amd Ice Control Equipment Guide Specification for Lifts Used to Bom'd Airline Passengers With Mobility In~pairments Airport Desigm Desigm of Aircraft Deicing Facilities Use of Value Engineering for Engineering Desigm of Airport Grant Projects Airport Drainage Airport Pavement Desigm and Evaluation Measurement, Construction, and Maintenamce of Skid Resistamt Airport Pavement Surfaces Airport Lamdscaping for Noise Control Purposes Airport Pavement Desigm for the Boeing 777 Airplane Runway Length Requirements for Airport Desigm Standm'ds for Airport Mm'kings Installation Details for Runway Centerline Touchdown Zone Lighting Systems Segm~ented Circle Airport Marker System Economy Approach Lighting Aids Standby Power for Non-FAA Airport Lighting Systems Standm'ds for Airport Sign Systems Taxiway Centerline Lighting System Airport Miscellaneous Lighting Visual Aids Supplemental Wind Cones Runway and Taxiway Edge Lighting System Air-to-Ground Radio Control of Airport Lighting Systems Specifcation for L821 Pamels for Remote Control of Airport Lighting Circuit Selector Switch Specification for L824 Undergronnd Electrical Cable for Airport Lighting Circuits Specification for Constamt Current Regulators Regulator Monitors Specification for Airport and Heliport Beacon Specification for L841 Auxilim'y Relay Cabinet Assembly for Pilot Control of Airport Lighting Circuits Specification for L823 Plug and Receptacle, Cable Connectors Specification for Wind Cone Assemblies Precision Approach Path Indicator (PAPI) Systems FAA Specification L853, Runway and Taxiway Centerline Retroreflective Mm'kers Specification for Airport Light Bases, Transfom~er Housings, Junction Boxes and Accessories Specification for Obstruction Lighting Equipment Specification for Taxiway and Runway Sigms Lightweight Approach Light Structure Specification for Runway amd Taxiway Light Fixtures Isolation Transfom~ers for Airport Lighting Systems Specification L854, Radio Control Equipment Specification for Portable Runway Lights Specification for Dischm'ge-Type Flasher Equipment Generic Visual Glideslope Indicators (GVGI) Airport Lighting Equipment Certification Program Planning and Design of Airport Terminal Facilities at NonHub Locations Airport Sigming & Graphics Plamning amd Desigm Guidance for Airport Tem~inal Facilities Operational Safety on Airports During Construction Construction Progress amd Inspection Report-Airport Grant Program~ Page 22 of 25 150/5370-10A CHG 1, 2, 3, 4, 5, 6, 7, 8, 9 150/5370-11, CHG 1 150/5370-12 150/5390-2A 150/5390-3 Standards for Specifying Construction of Airports Use of Nondestructive Testing Devices in the Evaluation of Airport Pavements Quality Control of Construction for Airport Grant Projects Heliport Design Vertiport Desitin Page 23 of 25 ATTACHMENT C CERTIFICATION REGARDING DRUG-FREE WORKPLACE REQUIREMENTS A. The grantee certifies that it will or will continue to provide a drug-free workplace by: (a) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use ora controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition: (b) Establishing an ongoing drug-free awareness program to inform employees about- (l) The dangers of drug abuse in the workplace; (2) The grantee's policy of maintaining a drug-free workplace; (3) Any available drug counseling, rehabilitation, and employee assistance programs; and (4) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace; (c) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (a); (d) Notifying the employee in the statement required by paragraph (a) that, as a condition of employment under the grant, the employee will- (l) Abide by the terms of the statement; and (2) Notify the employer in writing of his or her conviction for a violation ora criminal drug statute occurring in the workplace no later than five calendar days after such conviction; (e) Notifying the agency in writing, within ten calendar days after receiving notice under paragraph (d)(2) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to every grant officer or other designee on whose grant activity the convicted employee was working, unless the Federal agency has designated a central point for the receipt of such notices. Notices shall include the identification number(s) of each affected grant; (t) Taking one of the following actions, within 30 calendar days of receiving notice under paragraph (d)(2), with respect to any employee who is so convicted- (l) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or (2) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency; (g) Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (a), (b), (c), (d), (e), and (f), B. The grantee may insert in the space provided below the site(s) for the performance of work done in connection with the specific grant: Place of Performance (Street address, city, county, state, zip code) Check Signed: __ if there are workplaces on file that are not identified here. Dated: Typed Name and Title of Sponsor Representative Page 24 of 25 ATTACHMENT D PAVEMENT MAINTENANCE MANAGEMENT PROGRAM An effective pavement maintenance management program is one that details the procedures to be followed to assure that proper pavement maintenance, both preventative and repair, is performed. An airport sponsor may use any form of inspection program tit deems appropriate. The program must, as a minimum, include the following: 1. Pavement Inventory. The following must be depicted in an appropriate form and level of details: Location of all runways, taxiways, and aprons Dimensions Type of pavement Year of construction or most recent rehabilitation For compliance with the Airport Improvement Program assurances, pavements that have been constructed, reconstructed, or repaired with Federal financial assistance shall be so depicted. 2. Inspection Schedule. Detailed Inspection. A detailed inspection must be performed at least once a year. Ifa history of recorded pavement deterioration is available, i.e. Pavement Condition Index (PCI) survey as set forth in Advisory Circular 150/5380-6, Guidelines and Procedures for Maintenance of Airport Pavements, the frequency of inspections may be extended to three years. b. Drive-by Inspection. A drive-by inspection must be performed a minimum of once per month to detect unexpected changes in the pavement condition. 3. Record Keeping. Complete information on the findings of all detailed inspections and other maintenance performed must be recorded and kept on file for a minimum of five years. The types of distress, their locations, and remedial action, scheduled or performed, must be documented. The minim information to be recorded is listed below. a. inspection date b. location c. distress types d. maintenance scheduled or performed For drive-by inspections, the date of inspection and any maintenance performed must be recorded. 4. Information Retrieval. An airport sponsor may use any form of record keeping it deems appropriate, so long as the information and records produced by the pavement survey can be retrieved to provide a report to the FAA as may be required. 5. Reference. Refer to Advisory Circular 150/5380-6, Guidelines and Procedures for Maintenance of Airport Pavements, for specific guidelines and procedures for maintaining airport pavements and establishing an effective maintenance program. Specific types of distress, their probable causes, inspection guideline, and recommended methods of repair are presented. Page 25 of 25 vxso ur os o. A RESOLUTION AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, AS DENTON'S AUTHORIZED REPRESENTATIVE, TO ACCEPT ON BEHALF OF TIlE C1TY OF DENTON AN OFFER FROM THE TEXAS DEPARTMENT OF TRANSPORTATION (TxDOT) RELATING TO A GRANT FOR CERTAIN IMPROVEMENTS TO THE DENTON M-tTNICIPAL AIRPORT; CONFIRMING AGREEMENT TO PAY A PORTION OF THE TOTAL PROJECT COSTS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas, intends to make certain improvements to the Denton Municipal Airport; and WHEREAS, the general description of the project is the expansion and comtmcfion of the north terminal apron at the Denton Municipal Airport (the "Project"); and WHEREAS, the City of Denton intends to request finandaI ~sistance fi'om the Texas Department of Transportation (TxDOT) for the Project; and NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The City Council of Denton, Texa~, hereby directs the City Manager, or his designee, to execute on behalf of the City of Denton, at the appropriat~ time, and with the appropriate authorizations of this governing body, all contracts and agreements with the Stat~ of Texas, r~res~nted by the Texas Department of Transportation (TxDOT), and wach othor parti~ as ~hall be necessary and appropriate for the implementation of the Project and related improvements at the Denton Municipal Airport. SECTION 2. This resolution shall become effective immediately upon its passage and approval. ATTEST: TENNIFER WALTERS,CITY SECRETARY APPROX/ED AS~ LEGA~ FORM: BY: ~" "~' / $:\Our Documents~'Rosolutiona~O3~txdo~ airport grant rosolution,doo RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY MANAGER, AS DENTON'S AUTHORIZED REPRESENTATIVE, TO ACCEPT ON BEHALF OF THE CITY OF DENTON AN OFFER FROM THE TEXAS DEPARTMENT OF TRANSPORTATION (TxDOT) RELATING TO A GRANT FOR CERTAIN IMPROVEMENTS TO THE DENTON MUNICIPAL AIRPORT; CONFIRMING AGREEMENT TO PAY A PORTION OF THE TOTAL PROJECT COSTS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas, intends to make cc~ain improvements to the Denton Municipal Airport relating to taxiway realignment; and WHEREAS, the general description of the project is described in Exhibit "A" which is att~hed hereto and made a part hereof for all purposes; and WHEREAS, the City of Denton intends to request financial assistance fi'om the Texas Department of Transportation (TxDOT) for these improvements; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY KESOLVES: SECTION I. The City of Denton, Texas, hereby directs the City Manager to execute on behalf of the City of Denton, at the appropriate time, and with the appropriate authorizations of this governing body, all contracts and agreements with the State of Texas, represented by the Texas Department of Transportation (TxDOT), and such other parti~ as shall be necessary and appropriate for the implementation of the improvements to the Denton Municipal Airport referenced in Exhibit A. SECTION 2. approval. PASSED AND APPROVED this the This resolution shall become effective immediately upon its passage and EULINE BROCK, MAYOR ATTEST: JENNER WALTERS, ~iTY SECRETARY APPROVE~AL FORM: ORNEY DRAFT MINUTES AIRPORT ADVISORY BOARD MEETING November 19, 2003 Board Members Present: Bob Eames, Mark Hannah, Ron Keaton, John Kristoferson, John Vann, Rick Woolfolk Board Members Absem: Rick Dugan Receive a report, hold a discussion, and take action on Airport Participation Agreemem Project for Taxiway Realignmem and Apron GraM. Mr. Nelson presemed the item to the Airport Advisory Board and discussed TxDOT's desire to combine the engineering phase of two previously approved projects, Expansion of the Terminal Apron and Realignmem of Taxiway Alpha. Mr. Nelson poimed out that the TxDOT Commission has already approved these projects individually and that the next step of the gram process would be to accept the Airport Project Participation Agreement. Discussion was held on TxDOT's desire to move toward multi-project and multi-year engineering consulting agreements. Board Member Ron Keaton made a motion to recommend to City Council to approve the ordinance approving the Airport Project Participation Agreemem for the Taxiway and Apron projects. Board Member Bob Eames Seconded the motion. Motion carried unanimously. II. Receive a report, hold a discussion, and take action on Comrol Tower Radio and Communications Grant. Mr. Nelson presemed the item to the Airport Advisory Board and explained that due to new legislation, the City could request certain gram funds, Non-Primary Emitlemem Funds, be applied for the acquisition and installation of radio and communication equipmem for the air traffic comrol tower. Mr. Nelson explained that the total gram dollars available were $150,000 and that the total cost for radio and communication equipmem for the tower was approximately $189,000. Mr. Nelson further explained the $150,000 in reimbursemem from TxDOT for this project could be reinvested on other gram projects potemially leveraging an additional $1.5 million in airport improvemems. Board Member Ron Keaton made a motion to recommend to City Council to approve the ordinance approving the Radio and Communication Equipmem graM. Board Member John Vann seconded the motion. Motion carried unanimously. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: December 2, 2003 Engineering Jon Fortune, Assistant City Manager SUBJECT Consider adoption of an Ordinance authorizing the City Manager or his designee to execute a Real Estate Contract for the purchase of approximately 17.992 acres being part of a tract of land situated in the J. Douthitt Survey, Abstract Number 329, as described in the deed from Sally H. Mudd to Mark Anthony Mudd and Chad James Mudd Recorded under clerk's file number 95-R00533339, of the Real Property Records of Demon County, Texas; Authorizing the expenditure of funds therefore; and providing an effective date. BACKGROUND City staff has been negotiating with the Beckman family over the past few months to negotiate the purchase of the subject tract. This tract will be added to property the City curremly owns as part of the Clear Creek Water Reclamation Plato project. We have reached an equitable understanding and have come to terms with the owner regarding this acquisition for the total sum of $225,000.00. OPTIONS 1. Approve the ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION Staff recommends approval of the Ordinance. ESTIMATED PROJECT SCHEDULE Closing on or before December 31, 2003. PRIOR ACTION/REVIEW None FISCAL INFORMATION Land Cost of $225,000.® Estimated Closing Costs $2,000.® ATTACHMENTS Location Map Draft Ordinance Real Estate Contract Survey Illustration Legal Description Prepared By: Respectfully submitted: Pamela G. England Real Estate Specialist for Charles Fiedler Engineering Department ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A REAL ESTATE CONTRACT FOR THE PURCHASE OF APPROXIMATELY 17.992 ACRES BEING PART OF A TRACT OF LAND SITUATED IN THE J. DOUTHITT SURVEY, ABSTRACT NUMBER 329, AS DESCRIBED IN THE DEED FROM SALLY H. MUDD TO MARK ANTHONY MUDD AND CHAD JAMES MUDD RECORDED UNDER CLERK'S FILE NUMBER 95-R00533339, OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to enter into the Real Estate Contract, which is attached hereto and made part hereof of the ordinance, and to execute all documents necessary to consummate this transaction. SECTION 2. The City Manager or his designee is hereby authorized to make the expenditures in the amount of the purchase price of $225,000.00 plus standard and customary closing costs for this acquisition. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2003. EULINEBROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: STATE OF TEXAS COUNTY OF DENTON REAL ESTATE CONTRACT Tl~Ig CONTRACT OF SALE is made by Michael A. Beclcmann and Linda L. Beckmann, (hereinafter referred to as "Sellers") and CITY OF DENTON, TEXAS, a home rule municipality, of Denton, Denton County, Texas, (hereinat~er referred to as "Purchaser"), upon the terms and conditions set forth herein. PURCHASE AND SALE Seller hereby sells and agrees to convey, and Purchaser hereby purchases and agrees to pay for ali that certain tracts, lots or parcels of land des~ in "EXHIBIT A" and further ill~trated in "EXHIBIT B", attached herein, with all rights and appurtenances pertaining to the said property, including any right, title and interest of Seller in and to adjacent streets, alleys or rights- of-way (all of such real property, fights, and appurtenances being hereinafter referred to as the "Property"), together with any improvements, fixtures, and personal propcu'ty situated on and attached to the Property, for the consideration and upon and subject to the te~-iii~, prOViSions, and conditions hereinat~er set forth. II. PURCHASE PRICE Amount of Purchase Price. The total purchase price for the Property shall be the sum of Two Hundred Twemy Five Thousand Dollars and No Cents ($225,000.°°) (the "Purchase Price"). Paymem of Purchase Price. cash at the closing. The full amount of the Purchase Price shall be payable in III. PURCHASER'S OBLIGATIONS The obligations of Purchaser hereunder to consummate the transactions contemplated hereby are subject to the satisfaction of each of the following conditions any of which may be waived in whole or in part by Purchaser at or prior to the closing. 1. Preliminary Title Report. Within ten (10) business days after the date hereof; Seller, at Purchaser's sole cost and expense, shall have caused the Title Company (hereinafter defined) to issue a owner's policy commitment (the "Commitment") accompanied by copies of all recorded documents relating to easements, rights-of-way, etc., affecting the Property. Purchaser shall give Seller written notice on or before the expiration often (10) business days after Purchaser receives the Commitment that the condition of title as set forth in the Commitment is or is not satisfactory. In the event Purchaser states the condition of title is not satisfactory, Seller shall, at Seller's option, promptly undertake to eliminate or modify aH unacceptable matters to the reasonable satisfaction of Purchaser. In the event Seller is unable to do so within ten (10) business days after receipt of written notice, Purchaser, at its option may elect to terminate this Agreement (in which event this Agreement shall be null and void), grant Seller additional time to cure, or proceed to closing. Purchaser's failure to give Seller this written notice shall be deemed to be Purchaser's acceptance of the commitment. 2. Survey. Purchaser, at Purchaser's sole cost and expense, shaft obtain a current survey of the Property, prepared by a duly licensed Texas land surveyor acceptable to Purchaser. The survey shall be staked on the ground, and shall show the location of all improvements, highways, streets, roads, railroads, rivers, creeks, or other water courses, fences, easements, and rights-of- way on or adjacent to the Property, if any, and shall contain the surveyor's certification that there are no encroachments on the Property and shall set forth the number of total acres comprising the Property, together with a metes and bounds description thereof. Following delivery of the Survey, the parties agree to amend this Contract to substitute the metes and bounds description of the Property set forth on the Survey for the current description set forth herein if the current description is different from that set forth in the Survey. Purchaser will have ten (10) business days after receipt of the survey to review and approve the survey. In the event the survey is unacceptable, then Purchaser shall within the ten (10)- business day period, give Seller written notice of this fact. Seller shall, at Seller's option, promptly undertake to eliminate or modify the unacceptable portions of the survey to the reasonable satisfaction of Purchaser. In the event Seller is unable to do so within ten (10) business days alter receipt of written notice, Purchaser, at its option may elect to terminate this Agreement (in which event this Agreement shall be null and void), grant Seller additional time to cure, or proceed to closing. Purchaser's failure to give Seller this written notice shall be deemed to be Purchaser's acceptance of the survey. 3. Seller's Compliance. Seller shall have performed, observed, and complied with all of the covenants, agreements, and conditions required by this Agreement to be performed, observed, and complied with by Seller prior to or as of the closing. 2 IV* REPRESENTATIONS AND WARRANTIES OF SELLER Seller hereby represents and warrants to Purchaser as follows, which representations and warranties shall be deemed made by Seller to Purchaser also as of the closing date: 1. Property to be sold in "AS IS" condition; however nothing herein shall be construed to release, discharge or hold harmless, any of Seller's predecessors in title. CLOSING The closing shall be held at the office of First American Title Insurance Company, 1100 Dallas Drive, Suite #112, Denton, Texas 76205 on or before December 31, 2003, 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 date"). CLOSING REQUIREMENTS 1. Seller's Requirements. At the closing Seller shaH: A. Deliver to the City of Denton a duly executed and acknowledged Special Warranty Deed conveying good and marketable title in fee simple to all of the Property, free and clear of any and all liens, leases, encumbrances, conditions, assessments, and restrictions, except for the following: 1. General real estate taxes for the year of closing and subsequent years not yet due and payable; 2. Any exceptions approved by Purchaser pursuant to Purchaser's Obligations hereof; and 3. Any exceptions approved by Purchaser in writing. B. Deliver to Purchaser a Texas Owner's Policy of Title Insurance at Purchaser's sole expense, issued by First American Title Insurance Company, Denton, Texas, (the "Title Company"), or such title company as Seller and Purchaser may mutually agree upon, in Purchaser's favor in the full amount of the purchase price, insuring fee simple title for the City of Denton to the Property subject only to those title exceptions listed in Closing .Requirements hereof, such other exceptions as may be approved in writing by Purchaser, and the standard printed exceptions contained in the usual form of Texas Owner's Policy of Title Insurance, provided, however: 1. The boundary and survey exceptions shall be deleted if required by Purchaser and if so required, the costs associated with it shall be Dome by Purchaser; 2. The exception as to restrictive covenants shall be endorsed "None of Record"; 3. The exception for taxes shall be limited to the year of closing and shall be endorsed "Not Yet Due and Payable"; and 4. The exception as to liens encumbering the Property shall be endorsed "None of Record". C. Deliver to Purchaser possession of the Property on the day of closing. D. Seller shall not be responsible for any applicable rollback taxes. 2. Purchaser's Requirements. Purchaser shall pay the consideration as referenced in the "Purchase Price" section of this contract at Closing in immediately available funds. 3. Closing Costs. Seller shall pay all taxes assessed by any tax collection authority through the date of Closing. All other customary and standard costs and expenses of closing in consummating the sale and purchase of the Property not specifically allocated herein shall be paid by the Purchaser, except each party will be respons~le for its own attorney fees. VII. 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 consmtion of this contract. 4 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 Buyer's default, Buyer may enforce specific performance of this Contract. BREACH BY PURCHASER In the event Buyer fails to consummate the purchase of the Property, if Seller is not in default under this Contract, Seller will have the right to enforce specific performance of this Contract. Xo MISCELLANEOUS 1. Assignment of Agreement, Purchaser may assign this Agreement without the express written consent of Seller. 2. Survival of Covenants. Any of the representations, warranties, covenants, and agreements 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 shaH 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 agem for purposes of notice shaft be: Michael A. Beckman, 4330 Hartlee Field Road, Denton, Texas 76208 b. Purchaser's agent for the purposes of notice shall be: Edwin Snyder, Deputy City Attomey, City of Denton, 215 East McKinney Street, Denton, Texas, 76201 4. Texas Law to Apply. This Agreement shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Denton County, Texas. 5. Parties Bound. This Agreement 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 Agreement. 6. Lega..! Construction. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, said invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if the invalid, illegal, or.unenforceable provision had never been contained herein. 7. Prior Agreements Superseded. This Agreement 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 Agreement. 9. Gender. Words of any gender used in this Agreement shaH 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 Agreement 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 obtains 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: SELLE~R:j 6 PURCHASER: Date: Michael A. Conduff City Manager 215 E. McKinney APPROVED AS TO FORM: CITYATTOP,~EY ,, Denton, Texas 76201 CI~~ON,/~XAS '" TITLE COMPANY ACCEPTANCE AND AC ENT The Title Company acknowledges receipt of the fully executed Contract on ~ ,2003. day of__ TITLE COMPANY: Name: Address: By: Printed Name: Title: First American Title Insurance Company 1100 Dallas Drive, Suite #112 Denton, Texas 76201 Telephone: 940-383-2357 EXHIBIT "A" All that certain tract of land situated in the .1, DOUTHI-I-F SURVEY, ABSTRACT NUMBER. 329, Denton County, Texas and being a part of the called 398.35 acre Tract 1, described in the deed from Sally H. Hudd to Mark Anthony Mudd and Chad .lames Mudd recorded under Clerk's File Number 95-R0053339 of the Real Properly Records of Denton County, Texas, the subject tract being more particularly described as follows: BEGINNTNG for the Southeast corner of the tract being described herein at a capped iron rod set for the Southeast corner of said Hudd tract in the apparent South line of said Survey, at a corner in Hartlee Field Road; THENCE North 89 Degrees 30 Minutes 00 Seconds West with the South line of said Hudd tract and said Survey in the approximate center of said Road (being gravel) a distance of 550.8'~ feet to a capped iron rod set for the Southwest corner of the herein described tract; THENCE North 0:[ Degrees 39 Minutes 02 Seconds East at a distance of 30.0 feet passing a capped iron rod set for reference and continuing along said course, in all, a total distance of :~383.31 feet to a capped iron rod set for the Northwest corner of the herein described tract; THENCE South 89 Degrees 30 Minutes 00 Seconds East a distance of 583.02 feet to a capped iron rod set in the East line of said Nudd tract in the approsimate middle of said road, on the West line of the called 3~..8 acre tract described in the deed to Louise G. Davis recorded in Volume 659, Page 253, Deed Records; THENCE South 02 Degrees 58 Minutes 57 Seconds West with the West line of said 3:L.8 acres and the East line of said Mudd tract, generally along the middle of said road at 1014.3 feet passing the apparent Southwest corner of said 31.8 acres and continuing along said course, in all, a total distance of 1384.33 feet to the PLACE OF BEG:INNING and containing 18.00 acres of land, more or less. Note: The Company is prohibited from insuring the area or quantity of the land described herein. Any statement in the above legal description of the area or quantity of land is not a representation that such area or quantity is correct, but is made only for informational and/or identification purposes and does not override Item 2 of Schedule B hereof. First American Title Insurance Company Texas Commitment T-7 (Rev. 6-27-02) First American Title Insurance Company Valid Only if Schedule A, B, C, D and Cover are a~tached AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET December 2, 2003 Engineering Jori Fortune, Assistant City Manager SUBJECT Consider adoption of an ordinance approving an agreemem between the City of DeNon and Mayhill Road Investors, L.P. for the partial abandonmem of a Public Utility Easemem dated August 13,1991 and recorded in the Real Property Records of DeNon County under Volume 3047, Page 778 as it affects land owners real property as described in Exhibit "A" and illustrated in Exhibit "B", attached hereto and made a part hereof by reference and being located in the M.E.P. & P.R.R. Survey, Abstract Number 950, DeNon County, Texas, authorizing the City Manager or his designee to execme said agreemem on behalf of the City of DeNon and providing an effective date. BACKGROUND Mayhill Road Investors, L.P. has requested that the City of Denton partially abandon an existing public utility easement as that portion affects their property. The abandonment is contingent upon relocation and acceptance of existing utilities to a new public utility easement dedicated by plat of the property. Mayhill Road Investors, L.P. is developing the property for a new surgical center. OPTIONS 1. Approve the ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION Staff recommends approval of the draft Ordinance. ESTIMATED PROJECT SCHEDULE Winter 2003. PRIOR ACTION/REVIEW None FISCAL INFORMATION None ATTACHMENTS Location map Draft ordinance Agreement Prepared By: Denise M. Perez Technical Assistant Real Estate & Capital Support Division Respectfully submitted: Charles Fiedler, Director Engineering Department LOCATION MAP ORDINANCE NO. ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF DENTON AND MAYHILL ROAD INVESTORS, L.P. FOR THE PARTIAL ABANDONMENT OF A PUBLIC UTILITY EASEMENT DATED AUGUST 13,1991 AND RECORDED IN THE REAL PROPERTY RECORDS OF DENTON COUNTY UNDER VOLUME 3047, PAGE 778 AS IT AFFECTS LAND OWNERS REAL PROPERTY AS DESCRIBED IN EXHIBIT "A" AND ILLUSTRATED 1N EXHIBIT "B", ATTACHED HERETO AND MADE A PART HEREOF BY REFERENCE AND BEING LOCATED IN THE M.E.P. & P.R.R. SURVEY, ABSTRACT NUMBER 950, DENTON COUNTY, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF DENTON AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The Easement Abandonment Agreement between the City of Denton and Mayhill Road Investors, L.P. in substantially the form of the agreement attached hereto and made part of the ordinance for all purposes (the "Agreement") is hereby approved. SECTION 2. The City Manager or his designee is hereby authorized to execute the Agreement on behalf of the City. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2003. EULINEBROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: BY: ~ ~-'-'~~ 11/14/2003 FRI 16:59 FAX 2146184574 HALFF ASSOCIATES 11/14/03 16:20 FAX 214 953 0278 CIRRUS GROUP 002/006 ~oo2 EASEMENT ABANDONMENT AGREEMENT THIS AGREEMENT is entered into effective as of the date set fetch below by and between the City of Deoton, Texas, a home role municipal corporation (the "City") and Denton Mayhill RoM Investors, L,P. (the "Landowner"). WHEREAS, the Landowner has made application requesting partial abandonment of a Public Utility Easement dated August 13, 1991 and recorded in the Real Property Records of Denton County under Volume 3047, Page 778 as it affects land owners real property as described in Exhibit "A" and illustrated in Exkibit "B', attached hereto and made a part hereof by reference (referred to as the "Existing EaSement"); and WHEREAS, upon acceptance of the Final Plat, North Texas Surgical Hospital, the Landowner will be dedicating a Public Utility Easement (the '~4ew Easement"); and WHE~AS, the Landowner has agreed to relocate all existing utilities currently located in the Existing Easement~ to the New Easument; and WHEREAS, the City agrees to abandon the Existing Easements upon relocation by landowner and acceptance by tee City of the relocated utilities to the New Easement NOW, THEREFORE, for and in consideration of the mutual covenants contained herein the City and the Landowners hereby agree as follows: l, The City. shall abandon the Existing Easement upon completion of the removal of tho existing utilities from the Existing Easement and thc installation of fl~ relocated utilities in tho New Easement. 2, The Landowner shall provide to the City written confirmation from each affected franchise utility aolmowledging that their respective utilities have been relocated to an alternative location and abandoned from the Existing .Easements. 3. The City Council o[' tho City and the Landowner have duly authorized th. is Agreement and the execution of same by the o£fioers or agents wke have signed below on their behalf. the In Witness Whereof, this Agreement has been executed by 'thc parties to be effective this , day of ,2003. CITY OF DENTON By: MICHAEL A. CONDUFF, CITY MANAGER 11/14/2003 FRI 16:59 FAX 2148184574 HALFF ASSOCIATES 11/14/03 16:20 FAX 211 953 0278 CIRRUS CROUP 003/006 ~oo3 ATTEST: JENNIFER WALTERS, C1TY SECRETARY BY: APPROVED AS TO LEGAL FORM: BY: DENTON MAYHILL ROAD INVESTORS, LP. A TEXAS LIM1TED ?ARTNERSHIP APPROVED AS TO FORM BY: Abandonment Agreement. dog Page 2 EXHIBIT "A" FIELD NOTES DESCRIBING AN EXISTING UTILITY EASEMENT TO BE ABANDONED BEING a 0.992 acre tract of land situated in the M.E.P. & P.R.R. CO. Survey, Abstract No. 950, City of Denton, Denton County, Texas, and being part of a 25.74 acre tract described by deed to Denton Mayhill Road Investors, L.P., a Texas limited partnership, as recorded in Volume 5408, Page 2692 of the Property Records of Denton County, Texas, and being more particularly described as follows: COMMENCING at a 1/2-inch found iron rod in the east right-of-way line of Mayhill Road (a 120-foot right-of-way), as recorded in Cabinet F, Page 125 of the Plat Records of' Denton County, Texas, said point being at the southwest end of a comer clip at the intersection of said east right-of-way line with the south right-of-way line of Colorado Boulevard; THENCE North 45 degrees 29 minutes 16 seconds East, along said comer clip a distance of 22.24 feet to a 1/2-inch found iron rod in the south right-of-way line of said Colorado Boulevard, said point being on a non-tangent curve to the left having a radius of 538.17 feet, and whose chord bears North 77 degrees 40 minutes 36 seconds East for 159.52 feet; THENCE Northeasterly, along said south right-of-way line of Colorado Boulevard and along said curve to the left, through a central angle of 17 degrees 02 minutes 44 seconds for an arc distance of 160.11 feet to the POINT OF BEGINNING, said point being a radius of 538.17 feet, and whose chord bears North 62 degrees 04 minutes 14 seconds East, a distance of 132.72 feet; THENCE Northeasterly, continuing along said curve to the left whose chord bears North 62 degrees 04 minutes 14 seconds East for 132.72 feet, through a central angle of 14 degrees 09 minutes 59 seconds for an arc distance of 133.06 feet to a point for comer; THENCE South 35 degrees 06 minutes 53 seconds West, departing said south right-of-way line of Colorado Boulevard, a distance of 255.49 feet to a point for comer; THENCE South 21 degrees 40 minutes 13 seconds West, a distance of 162.19 feet to a point for comer; THENCE South 15 degrees 12 minutes 45 seconds West, a distance of 538.39 feet to point for comer on the most southwesterly line of said 25.74 acre tract of land; THENCE North 39 degrees 20 minutes 09 seconds West, along said southwesterly line, a distance of 9.93 feet to a point for comer on the aforementioned east right-of-way line of Mayhill Road, said point being on a non-tangent curve to the left having a radius of 910.00 feet, and whose chord bears North 08 degrees 27 minutes 31 seconds East for 139.14 feet; THENCE Northeasterly, along said east right-of-way line and along said curve to the left, through a central angle of 08 degrees 46 minutes 09 seconds, an arc distance of 139028 feet to a point for comer; THENCE North 04 degrees 08 minutes 10 seconds East, continuing along said east right-of-way line, a distance of 189.66 feet to a point for comer; THENCE North 14 degrees 44 minutes 25 seconds East, departing said east right-of-way line, a distance of 86.50 feet to a point for comer; THENCE North 15 degrees 04 minutes 54 seconds East, a distance of 124.49 feet to a point for comer; THENCE North 26 degrees 08 minutes 31 seconds East, a distance of 233.14 feet to a point for comer; THENCE North 33 degrees 27 minutes 07 seconds East, a distance of 83.25 feet to the POINT OF BEGINNING AND CONTAINING 43,208 square feet or 0.992 acres of land, more or less. The intent of this document is to describe all of the portions of Mayhill Road abandoned by City of Denton, Texas Ordinance No. 91-122, filed for record in Volume 3047, Page 778, in the Property Records of Denton County, Texas, that falls within the limits of the referenced 25.74 acre tract described in Volume 5408, Page 2692, Property Records of Denton County, Texas. AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET December 2, 2003 Engineering Jon Fortune, -Assistant City Manager SUBJECT Consider denial of exaction variances for a parcel containing approximately 12.9 acres, which is located on the South side of Jim Christal Road West of the GC & SF Railroad. The property is currently designated as an industrial Center, Employment (lC-E) zoning district. Buildings currently exist on the site and new construction is proposed. The owners of the property operate a trucking company. The Planning and Zoning Commission recommends denial of the variances (5-1). (V03- 0028) A) Section 35.20.2(L.3.a.) of the Code of Ordinance concerning pavement improvements to a perimeter street B) Section 35.20.2(H. 1.) of the Code of Ordinance concerning the dedication of right of way for all streets that serves a commercial lot (regarding ROW for a cul-de-sac at the end of Jim Christal Road at its intersection with the GC & SF Railroad). BACKGROUND: Ms Vicki Oppenheim, AiCP, the applicant for this property (representing James E. Browne, Jr., the developer/owner of the Browne industrial Park) has applied for a full exaction variance of Section: 1. 35.20.2(L.3.a.) concerning pavement improvements to a perimeter street, 2. 35.20.2(H. 1) concerning right-of-way dedication sufficient for a cul-de-sac. The Code requires A) 35.20.2(L.3.a) that for existing perimeter streets, any development on the perimeter of an unimproved perimeter street shall dedicate the right-of-way and improve or reconstruct the street to the same extent as is required for new perimeter streets", and, "in no case shall that portion of the street provided be less than a pavement width of twenty-five (25) feet plus required bicycle lane in the case of an arterial. B) 35.20.2(H.1) that public right of way shall be dedicated for all streets that serve any commercial or industrial lot. This would be in regards to additional ROW dedication required for a cul-de-sac at the end of Jim Christal Road. The cause of this request is the result of this property being replatted. The applicant is proposing to replat the property to include the addition of approximately 3.2 acres of unplatted property to the existing platted lot of approximately 9.7 acres. Some small buildings and related structures exist on the property. In addition, the current platted lot allows limited development as the owners chose to designate a large portion of the lot as pervious area to avoid the need for drainage improvements when it was previously platted. The applicant intends to construct an additional 85,000 square feet of building space and associated parking improvements to expand their trucking business on the property. The applicant intends to dedicate ROW a distance of 36.5' from the Center Line of Jim Christal Road Page 1 (as required for a 73ft commercial mixed use collector) along the emire fromage of this property. However, the applicant is requesting to not have to dedicate additional ROW for a cul de sac at the end of Jim Christal Road. The applicant also wishes not to make any paving improvements on Jim Christal Road. In this area, Jim Christal Road is a two (2)-lane rural type roadway that ends at the GC & SF Railroad, and the City does not imend extend Jim Christal Road across the railroad. The City relinquished this crossing and removed it in order to have the new crossing for West Oak Street. A detailed letter from the applicant is attached and outlines various items/issues. It should be noted that because of the size and use of the proposed developmem, a traffic impact analysis will be required when the final plat is submitted. It is possible that the omcome of the TIA will require offsite traffic improvements in addition to the standard perimeter paving and right of way standards. This variance only applies to the perimeter paving and right of way standards in from of the property and does not address any offsite improvemems needed as a result of a future TIA. The City Council may approve each portion of this exaction variance (A&B) if the following criterion are met: b) Criteria for variances from developmem 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 developmemal exactions shall be approved by the City Council. The price the applicam(s) paid for the parcel, or the cost of the proposed building improvemems is not a factor in determining reasonable costs. The question is, are the costs associated with the public improvemem reasonable and consistem with the type of developmem proposed and the demand for services created by the developmem? PRIOR ACTION/REVIEW When the subject property was previously platted, exaction variances were grained for perimeter paving and cul de sac requirements because the applicants were proposing to limit the amount of developmem on the property by establishing the majority of the property as pervious area and the proposed driveway was located on the far west side of the property eliminating the need for paving in from of the property because the street was a dead end at the east property line. In addition, the property directly across the road was recemly replatted as the Harley Addition. Staff and P&Z recommended a conditioned variance for that property because the purpose of that plat was to divide the property for ownership purposes only and the owners agreed to deed restrict the property to not allow additional development of the site thus not creating any additional need for infrastructure improvements. The Planning and Zoning Commission considered this variance at their November 12th meeting and recommends denial of the variance (5-1) due to the additional traffic that could be generated by expansion of the existing business (Minutes Attached). Page 2 FISCAL INFORMATION A) Current construction costs for 25 ft of pavement width with curb/gutter for a collector street is estimated at $75/linear ft. plus cul de sac, an additional $15,000.00 for the south half. The frontage is approximately 650ft, resulting in an estimated cost of $63,750.00 for the pavement improvements. In accordance with the development code, the funding for these improvements could be posted with the City rather than construction of the improvements. If money was posted with the city, the applicant would be refunded the full amount plus interest in the event that the subject improvements were not constructed by other means within 10 years. B) Value for the additional ROW is estimated at $1.00/sqft. The amount of additional ROW required for the cul de sac is approximately 1500sqft, resulting in an estimated cost of $1,500.00 for the ROW dedication RECOMMENDATION 1) Staff recommends denial of the exaction variance as a significant amount of new development is proposed to take place on the property in addition to platting and developing additional acreage. In addition the applicants could reduce their right of way and paving requirements by agreeing to limit driveway access as they did on the previous plat to the west side of the property. This would enable staff to support a partial variance of the subject requirements. 2) The Planning and Zoning Commission recommends denial of the variance (5-1). ATTACHMENTS 1. Location map 2. Plat 3. Applicant's letter 4. P & Z minutes Prepared By: David Salmon, Assistant Director Engineering Respectfully submitted: Charles Fiedler Director, Engineering Page 3 ATTACHMENT # 1 SITE LOCATION ._._.-- ATTACHMENT #3 APPLICANT'S LETTER ISBELL ENGINEERING GROUP, INC. CONSULTANTS IN ENGINEERING & PLANNING "Integrity in Engineering" October 10, 2003 City of Denton Planning and Development Department City Hall West 221 N. Elm Denton, TX 76201 Dear Planning and Development Department: On behalf of ,lames Browne, Isbell Engineering Group, Inc. (IEG) requests two subdivision variances for the replat of Browne Industrial Park. IEG requests relief from the requirements of providing an eight-foot sidewalk along Jim Christa} Road and from dedicating one-half of a cubde-sac on Jim Christal Road at the dead end of the street. The 12.84-acre property is being replatted because of the addition of 3.1631 acres to the existing 9.6781 acres of Lot 1 Block 1 of the Browne Industrial Park. The existing buildings will be removed and a replaced with a large warehouse and office complex, The proposed warehouse, with approximately one to two new employees, will be for storing and shipping truck parts. The property is immediately adjacent to a barricade and a dead end road that was implemented by the City of Denton in 1995. Jim Christal Road and the GC & SF Railroad crossing was closed in exchange for the Denton County bond funded extension and rerouting of Jim Christal Road and the building of a railroad crossing at West Oak Street. IEG summarizes the events leading to this request as follows: t993 Rayzor Dedication: Rayzor dedicated right of way for the proposed realignment of Jim Christal Road to the West Oak Street railroad crossing. Jim Christal Road Project: The City of Denton completes the design for the Jim Christal Road project in April 1994. The section of Jim Christal Road at the railroad crossing would be removed. The remaining Jim Christal Road would be repaved during the construction of the rerouted road to West Oak. A barrier was proposed to place at the road dead end. No cul-de- sac was included in the plans. Preliminary Plat and Variance Approval: The City Council approved the preliminary plat and sidewalk variance request for Browne Industrial Park in May 1994. The closing of Jim Christal road and the proposed dead-end street was discussed but not yet implemented. "Hr. Salmon said staff felt that there was no need to put in a sidewalk that would go no where~ but staff could not make that decision." (City Council Report) Final Plat: the Planning and Zoning Commission approved the final plat for Brown Industrial Park in 1995, 1405 W. Chapman C200- Sanger, Texas 76266 Phone: 940~458-7503 - Fax: 940-458-7417 e-mail: isbellC~.isbellen gineering.com 5. 2000 Abandonment by the City of Denton of the Jim Christal Road right-of-way from the east railroad right-of-way to the west I 35 right-of way: this right-of-way was officially abandoned years after the road closing. Upon completion of the road improvements, apparently after the p[atting of the Browne Industrial Park, Jim Christal Road was made into a dead end street and no cul-de-sac was provided by the City of Denton. This condition was created solely by the City of Denton's actions. The building of the one-half cul-de-sac is not reasonable given the following considerations: 1. The City of Denton created the dead-end road in 1995 and at that time could have built a cul-de- sac. A cul-de-sac was not required in the final platting of Browne Industrial Park in 1995. Cul-de- sacs were required, however, in the subdivision regulations (City of Denton Ordinance 88-103 and amendments). The dead end street without a cul-de-sac is an existing condition created and formerly approved by the City of Denton. 2. If the property owner did not buy an additional 3,1 acres, the owner could have avoided platting and acquired a building permit with the dead end street in its current condition. The reptat should not create a further requiremenb given that the road frontage with the proposed warehouse is not significantly different from before. 3.The Browne Warehouse plans include a turnaround for trucks on its premises. The same factors also apply to the sidewalk requirement. Given that the sidewalk will lead to "nowhere" it does not seem reasonable to require the dedication of an eight-foot sidewalk on the frontage road. No significant pedestrian traffic will be generated by this development. IEG requests favorable consideration of the two variance requests. We appreciate your time with this matter. Regards, ,, Vicki Oppenhe' Senior Planner G:\#1 lEG Projects\lEG02865 Browne Warehouse Development\Correspondence\Variance RequestS2003-10 14 browne vadance letter.doc EXCERPT FROM DRAFT P&Z MINUTES OF OCTOBER 22, 2003 4. ITEMS FOR INDIVIDUAL CONSIDERATION: Hold a public hearing and consider the following items: A. Exaction variances for property containing approximately 9.7 acres, located on the south side of Jim Christal Road, west of the GC & SF Railroad. The property is currently in an Industrial Center-Employment (1C-E) zoning district. Buildings currently exist on the site and new construction is proposed. (V03-0028, Browne Warehouse perimeter paving and ROW variance, Kevin Roberts). 1. 35.20 (L.3.a.) of the Code of Ordinances concerning improvements to a perimeter streets and, 2. 35.20.2 (H.1.) of the Code of Ordinances concerning the dedication of right of way for all streets that serve a commercial lot (regarding ROW for a cul-de-sac at the end of Jim Christal Road at its intersection with the GC & SF Railroad). David Salmon, City Engineer, briefed Commission members on the variance request. Vikki Oppenheim, with Isabell Engineering, spoke as a representative for the owners. She discussed with Commission members the reason for the variance request. After discussion, Commissioner Powell made a motion to deny the variance request. Seconded by Commissioner Holt. Motion carried 5-1. Commissioner Roy absent. The vote was as follows: Commissioner Powell - aye, Commissioner Holt - aye, Commissioner Strange - aye, Commissioner Watkins - aye, Commissioner Mulroy - aye, Commissioner Johnson - nay. AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET December 2, 2003 Planning and Development Jon Fortune, Assistant City Manager SUBJECT: Consider adoption of an ordinance of the City of DeNon approving an Imerlocal Cooperation Agreemem between the City of DeNon and DeNon County for the regulation of subdivisions in the Extraterritorial Jurisdiction of the City of DeNon; and providing an effective date. BACKGROUND: In the 77th Legislative Session H.B. 1445 amended Texas Local Government Code §242.001, allow the City and the County to emer imo an agreemem to determine the jurisdiction over the platting process required upon the subdivision of land within the City's Extraterritorial Jurisdiction ("ETJ") located within the County. Prior to recem amendmems to Texas Local Governmem Code §242.001, the City adopted Ordinance No. 93-033, which was amended by Ordinance No. 94-039 & 94-122, wherein, the City adopted and amended its regulatory line map reflecting Division I and Division II of the City's ETJ. The City and County have imerpreted these agreemems to comply with H.B. 1445. Both City and County agree that the City cominue to exercise exclusive jurisdiction to regulate subdivision plats and approve related permits, in City's Division I ETJ under Subchapter A of Chapter 212 of the Texas Local Governmem Code and other statutes applicable to municipalities, and the County be granted such exclusive jurisdiction to regulate subdivision plats and approve related permits in City's Division II ETJ under Subchapter A of Chapter 232 of the Texas Local Government Code and other statutes applicable to coumies, all of which is provided for in the Imerlocal Cooperation Act and Local Government Code §242.001. In the 78th Legislative session H.B. 1204 further amended Texas Local Govemmem Code §242.001 to require that these agreemems be certified. This Imerlocal Cooperation Agreemem sets forth the City and the County's regulatory jurisdictions within the ETJ and certifies the compliance with § 242.001. RECOMMENDATION: Staff recommends that the City Council adopt the ordinance approving the Imerlocal Cooperation Agreement Respectfully submitted: Jon Fortune, Assistam City Manager S:Our Documalt ~Ordhlmlce~0 3 lnt~local Denton CmmtyEIJ doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING AN INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON COUNTY FOR THE REGULATION OF SUBDIVSIONS IN THE EXTRATERRITORIAL JURISDICTION OF THE CITY OF DENTON; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, prior to recent amendments to Texas Local Government Code §242.001, the City and the County could exercise concurrent jurisdiction over the platting process required upon the subdivision of land within the City's Extraterritorial Jurisdiction ("ETJ") located within the County; and WHEREAS, prior to recent amendments to Texas Local Government Code §242.001, the City adopted Ordinance No. 93-033, which was amended by Ordinance No. 94-039 & 94-122, wherein, the City adopted and amended its regulatory line map reflecting Division I and Division II of the City's ET J; and WHEREAS, these recent amendments to Texas Local Government Code §242.001 allow the City and County to enter into an Interlocal Agreement set forth the City and the County's regulatory jurisdictions within the ET J; and WHEREAS, both City and County desire that City continue to exercise exclusive jurisdiction to regulate subdivision plats and approve related permits, in City's Division I ETJ under Subchapter A of Chapter 212 of the Texas Local Government Code and other statutes applicable to municipalities, and the County be granted such exclusive jurisdiction to regulate subdivision plats and approve related permits in City's Division II ETJ under Subchapter A of Chapter 232 of the Texas Local Government Code and other statutes applicable to counties, all of which is provided for in the Interlocal Cooperation Act and Local Government Code §242.001. WHEREAS, the City Council hereby finds that the Interlocal Agreement is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HERBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The City Manager is hereby authorized to execute the Interlocal Agreement on behalf of the City of Denton. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __day of _,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 INTERLOCAL COOPERATION AGREEMENT THIS INTERLOCAL COOPERATION AGREEMENT ("ICA") is entered into and in accordance with the provisions of the Interlocal Cooperation Act, Chapter 791, Texas Government Code, and Texas Local Government Code §242.001 by and between the City of Denton, Texas ("City"), a political subdivision of the State of Texas, and the Denton County, Texas, ("County"), also a political subdivision of the State of Texas. Recitals WHEREAS, prior to recent amendments to Texas Local Government Code §242.001, the City and the County could exercise concurrent jurisdiction over the platting process required upon the subdivision of land within the City's Extraterritorial Jurisdiction ("ETJ") located within the County; and WHEREAS, prior to recent amendments to Texas Local Government Code §242.001, the City adopted Ordinance No. 93-033, which was amended by Ordinance No. 94-039 & 94-122, wherein, the City adopted and amended its regulatory line map reflecting Division I and Division II of the City's ET J; and WHEREAS, these recent amendments to Texas Local Government Code §242.001 allow the City and County to enter into an Interlocal Agreement set forth the City and the County's regulatory jurisdictions within the ET J; and WHEREAS, both City and County desire that City continue to exercise exclusive jurisdiction to regulate subdivision plats and approve related permits, in City's Division I ETJ under Subchapter A of Chapter 212 of the Texas Local Government Code and other statutes applicable to municipalities, and the County be granted such exclusive jurisdiction to regulate subdivision plats and approve related permits in City's Division II ETJ under Subchapter A of Chapter 232 of the Texas Local Government Code and other statutes applicable to counties, all of which is provided for in the Interlocal Cooperation Act and Local Government Code §242.001. NOW, THEREFORE, City and County, for the mutual consideration stated herein, agree and understand as follows: Agreements The above recitals are incorporated, as if fully set forth, herein. This ICA sets forth the City and the County's regulatory jurisdiction in the ETJ as adopted by Ordinance No. 93- 033, which was amended by Ordinance No. 94-039 & 94-122, wherein, the City adopted and amended its regulatory line map reflecting Division I and Division II of the City's ETJ. a) City Granted Exclusive Jurisdiction. City shall be granted exclusive jurisdiction to regulate all subdivision plats and approve all related permits in the City's Division I ETJ as established by Denton City Ordinance 93-033 and amended by Denton City Ordinance 94-039 & 94-122, as shown on Exhibit "A", and the City may regulate subdivisions under Subchapter A of Chapter 212 of the Texas Local Government Code and other statutes applicable to municipalities, and County shall no longer exercise any of these functions in the City's Division I & II ETJ. The County will continue to enforce Texas Water Code Chapter 366 and on-site sewage facilities under 30 Texas Administrative Code ("TAC") Chapter 285, unless the City is an authorized agent of the Texas Commission of Environmental Quality. Execution of this Agreement does not affect County's authority to issue permits for on-site sewage facilities, including the authority to enforce lot size requirements. The City shall approve and regulate culvert and floodplain development permits pursuant to federal and state law in Division I of the ETJ. County Granted Exclusive Jurisdiction. County shall be granted exclusive jurisdiction to regulate all subdivision plats and approve all related permits in City's Division II ETJ as defined and established by City Ordinance No. 93-033 and amended by City Ordinances Nos. 94-039 and 94-122, and may regulate subdivisions under Subchapter A of Chapter 232 of the Texas Local Government Code and other statutes applicable to counties. ETd Defined. For the purposes of this agreement, the City's ETJ is described by the area indicated on Exhibit A, attached hereto, and made part hereof by this reference. The recognition of the ETJ shall not be deemed an admission by the City or the County in any dispute with any other person or municipality regarding the boundaries of the City's ETJ. ETd Expansion or Reduction. In the event that City's ETJ should expand by annexation, the City and County agree that the City shall continue to be granted exclusive jurisdiction to regulate subdivision plats and approve related permits in its Division I ET J, and to regulate subdivisions under Subchapter A of Chapter 212 of the Texas Local Government Code and other statutes applicable to municipalities upon the effective date of the annexation. The City and County agree that in the event City's ETJ is reduced by disannexation, the County shall have the exclusive jurisdiction to regulate subdivision plats and approve related plats in areas in the County that are no longer in the City's Division I ETJ upon the effective date of the disannexation. Should City expand or reduce its ETJ by annexation or disannextion, City shall notify the County of such expansion or reduction within thirty (30) days by sending a copy of the applicable ordinance. Upon receipt of the ordinance, the County will revise the City's ETJ on its GIS system in accordance with revised Exhibit A. County may submit the revised Exhibit A to the Commissioners Court for approval and, after approved, forward a copy to the City. Receipt by the City of the revised Exhibit A from the County shall be deemed an amendment to this ICA by the parties pursuant to Texas Local Government Code §242.001(c). ETJ ICA Page 2 Notice of Plat Submittals and Approvals'. The City may electronically notify the County of the approval of a plat by sending a copy of the approved plat and any engineering plans to the County Planning Department. If available, the approved plat may be sent electronically. After notice of approval, the County shall assign addresses to each lot within an approved subdivision. Plats' Affected. The plats which will be subject to this ICA are those that applications are filed after the Effective Date, as defined herein, of this ICA. If the ETJ is expanded or reduced, plats must be filed with the party who will have jurisdiction after the effective date of the annexation or disannexation. The party receiving an application for a plat approval for which the party has no jurisdiction may either direct the developer to the appropriate office or forward the application to the appropriate office. Maintenance of Roads. County shall continue to maintain public roads constructed in the ETJ at County's expense, except as otherwise provided by agreement. Effective Date. The Effective Date shall be the date upon which both parties have approved and fully executed this ICA. Upon execution of this ICA, the City and the County certify compliance with Texas Local Government Code §242.001. Applicable Regulations. The subdivision rules and regulations currently enacted by the City and extended to the ETJ are hereby established as the set of regulations to be enforced by the City in the City's Division I ETJ. The subdivision rules and regulations currently enacted by the County are hereby established as the set of regulations to be enforced by the County in the City's Division II ETJ. The only exception to this provision shall be instances where the subdivision rules and regulations of the County provide a more stringent standard, in which case, the more stringent standard shall apply. Any amendments to either party's subdivision rules and regulations shall be sent to the other party pursuant to Section 10(e) below. 9. Miscellaneous Provisions. (a) This Agreement expresses the entire agreement between the parties hereto regarding the subject matter contained herein and may not be modified or amended except by written agreement duty executed by both parties. (b) This Agreement shall be construed in accordance with the laws of the State of Texas and venue for all purposes hereunder shall be in Denton County, Texas. (c) If any provision hereof is determined by any court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be fully severable herefrom and this Agreement shall be construed and enforced as if such invalid, illegal or unenforceable provision never comprised a part hereof; and the remaining provisions shall continue in full force and effect. ETJ ICA Page 3 (d) All notices required to be given by virtue of this ICA shall be addressed as follows and delivered by certified mail, postage prepaid or by hand delivery: City: City Manager City of Denton 215 E. McKinney Denton, Texas 76201 Copy to: Development Director City of Denton 215 E. McKinney Denton, Texas 76201 and City Attorney City of Denton 215 E. McKinney Denton, Texas 76201 County: Denton County Judge 110 West Hickory Denton, Texas 76201 Copy to: Denton County Planning Department 306 N. Loop 288, Suite 115, Denton, Texas 76209 and Denton County Criminal District Attorney Civil Division P.O. Box 2850 Denton, Texas 76202 (¢) This ICA is not intended to extend the liability of the parties beyond that provided by law. Neither the City nor the County waives any immunity or defense that would otherwise be available to it against claims by third parties. City and County may review this Agreement on or before April 1, 2004, and shall make such amendments as are mutually acceptable to the parties. APPROVED BY THE CITY COUNCIL FOR THE CITY OF DENTON, TEXAS, in its meeting held on the ____ day of ., 2003, and executed by its authorized representative. ETJ ICA Page 4 CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY Michael A. Conduff City Manager Date: BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: APPROVED BY THE COMMISSIONERS TEXAS, in its meeting held on the __ day of by its authorized representative. COURT FOR DENTON COUNTY, ., 2003, and executed DENTON COUNTY, TEXAS ATTEST: Mary Horn Denton County Judge Date: County Clerk ETJ ICA Page 5 APPROVED AS TO FORM: Assistant District Attorney ETJ ICA Page 6 City of Denton Regulatory Jurisdiction .. ' EXHIBIT "A" AGENDA INFORMATION SHEET AGENDA DATE: December 2, 2003 DEPARTMENT: ACM: W/WW Utility Howard Martin, 349-8232 SUBJECT Consider a request to decertify a portion of the City of Denton's Water CCN to support an application for an exempt utility status from the TCEQ for the Heffer Water System. BACKGROUND Staff has been working with the TCEQ and Teresa Heffer on issues related to Certificates of Convenience and Necessity (CCN) for a small water system owned by Ms Heffer on East University Drive near the imersection of Trinity Road (Exhibit i). Background information related to the issues was sent to the City Council in a Memorandum dated October 17, 2003 (Exhibit ii). Title 30, Part 1 Chapter 291 Subchapter G of the Texas Administrative Code contains the states utility regulations for Certificates of Convenience and Necessity (CCN). Section 291.103 (Exhibit iii) outlines a criterion under which retail water service can be provided that does not require possession of a CCN. Section 291.103 (c), covers municipalities and Section 291.103 (d), covers Utilities or Water Supply Corporations with less than 15 potemial customers ( aka Exempt Utilities). Section 291.103 (d), 1., requires the City of DeNon to allow for the registration of Heffer Water Well System as an Exempt Utility with the TCEQ to do the following: 1. Under section (C) to decertify their CCN (according to TCEQ staff). 2. Under section (D) to provide written permission. Recemly, the TCEQ also notified Ms Heffer in a letter dated October 23, 2003 (Exhibit IV) the options available to her if the City of DeNon elects to not decertify their CCN. Ongoing conversations between staff, Ms Heffer and the TCEQ has resulted in the following strategy to try and resolve these issues: The City of Demon has notified the TCEQ (Exhibit V) requesting an extension for the TCEQ's processing of an Exempt Utility application for Heffer Water Supply System. This request included a proposed timeline for the City of DeNon to administratively process a decision to consider decertification of this portion of their water CCN by the Public Utilities Board and City Council. 2. The City of Demon has the following alternatives to consider: · Decertify their Water CCN for this area and support the Exempt Utility application for Heffer Water Well System. Elect to retain their Water CCN in this area and require that Heffer Water Well System either apply for a water CCN for this area or file application to the TCEQ to discontinue water service. Recent conversations between Ms Heffer and staff indicate that the residences do not want to bear the expense of extending city water at this time and filing application to the TCEQ to discontinue water service is not a viable alternative for them to consider. Ms Heffer has also indicated a willingness to apply for a water CCN using the assistance offer by the TCEQ from the Texas Rural Water Association. However, there is no assurance that this process would lead to a decision by the TCEQ to allow for a dual CCN for this area. In addition, the CCN application process would require additional regulatory oversight and expense for Ms Heffer and her customers. In general, CCN holders are larger water systems that meet the TCEQ's definition of a Public Water System (fifteen connections or greater) and the Exempt Utility registration process is designed to allow small non-public water systems to comply with TCEQ's regulations without having to hold a CCN. OPTIONS: 1. Decertify this portion of Demon's Water CCN and notify the TCEQ that they should process the Heffer Water Well's application to register as an Exempt Water Utility. Retain this portion of Demon's Water CCN and notify the TCEQ and Ms Heffer to apply for a Water CCN and request that the CCN be granted as a dually certified water service area between the City of Demon and Heffer Water Well. RECOMMENDATIONS: Staff recommends decertification of the CCN due to the following: 1. This option provides the least costly solution for the owner of the well and the customers that are served. Decertification supports the registration of Heffer Water Well System as a utility that is exempt from having to hold a Water CCN and avoids the risk of the creation of a single certified water CCN for this area for Heffer Water Well System and a decertification of this CCN area of Demon's by the TCEQ. 3. Since this area is curremly in Demon's city limits, the city does not need a CCN to provide water service to these citizens if they want water service in the future. Decertification removes a legal responsibility from the City to provide water service to this area. However, the City's responsibility to provide water service does not require extension of water service at their expense. The TCEQ's authority does not include jurisdiction over utility extension policies. Demon's historic and currem extension policy is based upon the end user's responsibility to pay for the water line extensions necessary to serve their property. This policy is consistent with extension policies for most cities and water supply utilities that provide retail service to the customers in their service area. If the City Council supports this recommendation, staff would notify the TCEQ of Demon's willingness to decertify this portion of their Water CCN ( Exhibit VI). PRIOR ACTION REVIEW (COUNiL, BOARDS, COMMISSION) PUB: November 17, 2003 - Consider a request to decertify a portion of the City of Demon's Water CCN to support an application for an exempt utility status from the TCEQ for the Heffer Water System. Approved staff recommendation to decertify this portion of Denton's Water CCN by a vote of 6-0. Respectfully submitted: Howard Martin Assistam City Manager, Utilities Prepared by: Tim Fisher, P.E., Assistant Director of Water Utilities Exhibit i: Exhibit ii: Exhibit iii: Exhibit iV: Exhibit V: Exhibit VI: Exhibit VII: Location Map October 17, 2003 Memo to City Council Chapter 291 Section 103 Texas Administrative Code. October 23, 2003 Letter from TCEQ to Ms Heffer. November 12, 2003 Letter from staff to TCEQ. Proposed letter to TCEQ from staff. November 17, 2003 PUB Meeting Minutes. OVERVIEW 215 E. McKINNEY DENTON, TX 76201 · (940) 349-8230 · FAX (940) 349-8120 TO: FROM: DATE: SUBJECT: UTILITY ADMINISTRATION Mayor and Members of City Council Howard Martin, ACM/Utilities ~ October 17, 2003 Update from staff concerning an exempt utility application from Heffer Water System and a request by the TCEQ for decertification of a portion of Denton's water CCN. Staff has been working with the TCEQ and Teresa Heffer on issues related to Certificates of Convenience and Necessity (CCN) for a small water system owned by Ms Heffer on East University Drive near the imersection of Trinity Road. Ms. Heffer has requested to speak to the City Council at the October 21 meeting and staff is providing the following information as additional information related to her issues and concerns. Prior Background information: Approximately 18 months ago, Water Utilities Administration staff was contacted by a DeNon residem ( Kay Wilkinson ) that lives at 1825 North Trinity Road, near Hwy 380 east of Lakeview Blvd. Ms. Wilkinson is part of a small residemial subdivision totaling approximately 14 lots that are currently served by a small neighborhood well and individual septic tanks systems. Ms. Wilkinson expressed some concerns about water system reliability and what was possibly becoming a non-responsive well system owner that did not reside at the subdivision being served by the well. Staff explained water line extension policies, provided a preliminary cost estimate to extend the waterline, and discussed impact fees and related city policies of financing impact fees for owner occupied single-family residences. The estimated cost to extend water to the subdivision was approximately $100,000 not including impact fees. Staff suggested that Ms. Wilkinson share this information with her neighbors and see if they were really imerested in financially supporting this project and tying imo city water service. Ms. Wilkinson later provided staff with a written request for a proposal for water service on May 10, 2002. 12 citizens represeming 9 of the 14 property owners signed this request. Staff then attempted to schedule a neighborhood meeting through Ms. Wilkinson. Due to schedule conflicts between staff and Ms. Wilkinson, this meeting was delayed for about two months. Subsequent telephone conversations between staff "Dedicated to Quality Service" www. cityofdenton.corn ATTACHMENT EXHIBIT 2 and Ms. Wilkinson indicated that the residems and the well owner were working on their issues and the interest level on extending city water may change as a result. Current Issues: Ms Heffer contacted the Water Utility Administration staff on August 4, 2003. Staff was informed that she was a residem of the above referenced subdivision and had purchased the water system from the previous owner to help insure that it was run and maintained in a manner that served the best interests of the neighborhood. Ms. Heffer indicated that the TCEQ was requiring that she either obtain an Exempt Utility permit from the state or file for discontinuance of service and stop providing water serve to her customers. Ms. Heffer also explained that the TCEQ was requiring her to obtain permission from the City of Denton to operate the water system within Denton's city limits and that the City of Demon would be required to decertify that portion of the city's existing CCN as a condition of obtaining an Exempt Utility permit from the state. Since first being contacted by Ms. Heffer, staff has contacted the TCEQ on several occasions to better understand the rules and regulations governing Exempt Utilities and determine what alternatives are available to best serve the interests of all parties concerned. Based upon staff's current efforts to date, it appears that the City of Denton may have to decertify this portion of their water service CCN to Heffer Water System to comply with TCEQ's staff interpretation of their rules. Staff is also investigating if other options may be available for Heffer Water System to obtain dual certification or be granted and Exempt Utility status from the TCEQ due to a grandfathering interpretation of the states CCN regulations and the date the water system was originally established. Based upon conversations within the Water Utility Administrative staff, there is a general reluctance to recommend that the City of Demon decertify any portion of the city's current water CCN. However, staff would support dual certification and would also recommend supporting that that city provide a notice of authorization to allow Heffer Water System to legally operate within Denton's City Limits since it has operated in this capacity for many years in the past and it is not economically desirable for the residences who live there to be required to extend City water and connect to Denton's water system. Unfortunately, the current staff position at the TCEQ does not support dual certification for and Exempt Utility application and would only permit dual certification if Heffer Water System applies for a CCN that requires more regulatory oversight in their operations and CCNs are more suited for Public Water Systems that serve 15 or more customers. If the City were to ultimately decide to decertify this portion of their Water System CCN to Heffer Water System, this would require PUB and City Council action. "Dedicated to Quality Service" www. cityofdenton.corn · Texas Administrative Cc de Page 1 of l Texas Administrative Code TITLE_Iff ENVIRONMENTAL QUALITY PART ! TE~S COMMISSION ON ENWIRONMENTAL QUALITY CHAPTER 291 ~IL1257 REGU~TIONS SUBCHAPTER G CERTIFICATES OF CONVENIENCE MD NECESSITY Rules §29!,!0I C~mficateReqtned §~:9L:102 CriterSa fbr Considering and Granting Certificates or Amendments §291,106 §291.107 .§291.1 (i)9 §29'1.tll ~29!,114 §291.11~ §291.118 Certificates Not Required Applicant Contents of Certificate of Convenience and Necessity Applicalions Notice ibr Applications ibr Certificates of Convenience and. Necessity Action on Applications Report of S ale, Merger, Etc.; Investigation; Disallowance of Transaction Foreclosure a~nd Bap&ruptcy Purchase of Voting Stock in Another Utility TransIkr of Certificate of Convenience and Necessity Revocation or Amendment of Certificate Requirem. ent T'o Provide Continuous and Adequate Service Cessation of Operations by a Retail Public Utility Exclusiveness of Certificates Contracts Valid and Enforceable Contents of Request for Comm.ission Order under the Texas Water Code, ~ 13.252 Filing of Maps Exhibit III http://info, so s, state, tx, us/pt s/pub/readtac$ ext. Vi ewTA C? tac.=vi ew= 5 &ti=3 0&pt= 1 &ch=2_. · Texas Administrative Code Page t of ] TITLE 3.0 PART! CHAPTER 29I, SUBCHAPTER G RULiE §291.101 Texas Administrative Code N¢×t r ule>> ENVIRONMENTAL QUALITY TE~S COMMISSION ON E~IRONMENTAL QUALITY ~'ILITY REGULATIONS CERTIFICATES OF CONVENIENCE AND NECESSITY Certificate Required (a) Unless otherwise specified, a utility, a utility o:perated by an affected county, or a water supply or sewer se~dce corporation may not :in any way ren. der retail water or sewer utility' service directly or indirectly to the public without 'first having Obtained from the commission a ce~ificate that the present or futm'e public convenience and necessity reqtdres or will require that installation, ~ .... ' o[ ~1 atlOB, or exlension. Except as .otherwise provided by th:is subchapter, a retail public utility may not firmiSh, make available, render, or extend retail water or sewer utility service to any area to which retail water or sewer service is being Iaw:fSally t5~rnished by another retail, public utility without first having obtained a certif}cate of public convenience and necessity that includes the area in which the consuming facility is located. (b) A person tha is not: a retail public utility or a utility or water supply corporation that is operating under provisions pursuant to the Texas Water Code, § 13.242(c) may not construct facilities to provide water or sewer se~wice to more than one service connection not on the property owned by the person and that are within tine ceaificated service area of a retail pub. lic utility without 'first obtaining written conse:nt from the retail public utility. (c) A district may :not provide se~wices within an area for which a retail public utility bolds a cea:ificate of convenience and necessity or within the boundaries of another district without the &strict :., consent, unless the district has a valid certificate of c< nx, emence and necessity to provide se~wices to that area. Source Note: The provisio, ns of this §291.101 adopted to be effective Janum! 10, 1996, 21 TexReg I14; amended to be effective February 4, 1999, 24 TexReg 7'38 Page Previo'u.s Page http //~inf~sos~state.tx.us/p~s/~p~b/readtac$ext~TacPage?s~=R&ap~=9&~..~di~&p~r1~c=&p~ 10/17/'2003 Texas Administrative Code Page I oi'3 PART 1 CHAPTER !9! SUBCHAPTER G: RULE §291,103 Texas Administrative Code ENVIRONMENTAL QUALI~ TEYL&S COMMISSION ON EN~zIRONMENTAL QUALI~~ I~ILI~ REGULATIONS CERTIFICATES OF C0>~rENIENCE ~D NECESSI~ Certificates Not Required (a) Extension of Se~dce. (I) Except for a t~tility or water supply or sewer seiw'ice corporation which possesses a f;2cilities only certifi cate of public convenience and necessity, a retail public utility is not required to secure a certificate of public conxenience and necessity fi~r: (A) an extension into territo~~ contiguous to that already served by it, if tile point of ultimate use is with. in one quarter mile of the boundaipy of its certificated area, and :not receiving similar service from another retail public utility and not within the area of public convenience and necessity of another retail public utility; or (B) an extension within or to te~ito~¥, already se~wed by it or to he se~,ed by it under a certificate of public convenience a:nd necessity. (2) -Whenever a.n extension is made pursuant to paragraph (1)(A) of this subsection, the utility or waler supply or sewer service coq, oration making the extension must inibrm the commission of the extension by submitting within 30 days of the date service is commenced, a copy of a map of the cen:ificated area clearly showing the extension, accompanied by a whtten explanation of the extension. (b) Construction of Facilities. A certificate is not required for the construction or upgrading of distribut:ion limilities w/thin the retail public u:tility's service area. The term construction and/or extension, as used in this subsection~ shall not include the purchase or condemnation of real prope~y ~br use as f;ac/lity s~tes or right-of-way. However, prior acquisition of such sites or right-of-way shall not be deemed 'to entitle a retail public utility to the grant of a certificate of convenience and necessity without showing that the proposed exrension is necessary for O~e service, accommodation, convenience, or safk, ty o£the public. (c) Municipality Pursuant to the Texas Water Code, § 13.255. A municipality which has given notice under the Texas Water Code, SS 13 255 that it intends to provide retail water service to an area or customers not currently being seiw'ed is not required to obtain a ce~tifica:te prior to begi~ming to provide service if the municipality provides: (1) a copy of tile notice required pursuant to the Texas Water Code~ § ! 3.255; and (2) a map showing the area affected u:nder the Texas Water Code~ § ! 3.255 and the location of new connections in tine area atTected which the municipality proposes to serve. ............ ~¢~ (d) Utility or Water Supply Coq>oration With Less Than I5 Potential Connections. (1) A utility or water supply corporation i,s exempt from the requirement to possess a certiticate of http://info sos.state.tx.us/pls/pub/readtacSext TacPage?sl=R&apw::9&p_d~=&p floc=Ap. 10/17/2003 ' Texas Administrative Code Page 2 of' 3 convenience ami necessity in order to provide retail water se~wice if it: (A) lnas less than 15 potential service coImections; (B) is not owned by or affiliated with a retail public utility or any other provider of potable water service; ............. .:~>, (C) is not within the certificated area of another retail public utility; and J~¢~ (D) is not within the co!?orate boundaries ora district or municipality unless it receives written authorization from the district or municipality. (2) Utilities or water supply corporations with less than 15 potential cormection:s currently operating under a certificate of convenience and necessity may request revocation o:f the certificate at any time. (3) The executive director may revoke the current certificate of convenience and necessity upon written request by the exempt utility or w'ater supply corporation. (4) An exempted utility shall comply with the se~wice rule requirements in the Exempt Utility Tariff Form prescribed, by the exectm e director which shall not be more stringent than those in §.,.~,~ ? 91 ,80- 291,90 of this title. (5) The exempted utility shall provide each ft~ture customer at the time sen, ice is requested and each current customer 'upon request with a copy of the exempt utility tariffl (6) Exempt Utility Tariff and Rate Change Requirements. An exempted utility operating with or without a ce~ificate of convenience and necessity: (A) must maintain a cmTent copy of the exempt utility tariff form with its cmTent rates at its business location; and (B) may change its rates witlhout followi:ng the requirements in §291.22 of d~is title (relating to Notice of Intent to Cl~ange Rates) if it provides each customer with written notice of rate changes p~or to the ef~kctive date of the rate change :indicating the old rates, the new rates, the efIkctive date of the new rates and the address of the commission along with a statement that written protests may be submitted to the commission at that address. If the commission receives wNtten protests to a proposed rate change fi"om at least 50% of the customers of an exempt utility lbllowing ~ais procedure within 90 days a'2er the eflkctive date of the rate change, the executive director will review the exempt utility's records or other information relating to the cost of providing segdce, After reviewing the inlbrmation and any co~m3aents ~kom customers or the exempt utility, the executive director will establish the rates to be charged by the exempt utility which shalt be effective on the date originally not,ccc by the exempt utility unless a diflgrent effective date is agreed to [ > the exeml, t uti!iD~ and customers. These rues max not be changed fbr 12 months after the proposed effective date without amhorization by the executive d/rector. The exempt utilib, shall reSmd any rates collected in excess of the rates established by the executive director in accordance with the time fkames or other requkements established by the executive director, (C,) The exempt utility or water supply corp.oration, public interest counsel, or any affected customer may file a written request lbr reconsideration or protest of the executive &,rector s decLs!on on rates with the chief clerk not later than the 20th day a~er the date on which tbe executive director mailed his bttp://info, so s. st ate:. tx. us/pi s/pub/re ad t ac$ ex t.TacP age'? si--R& app-9 &p,,,,,di r= &p_rl o c=&p... 10/17/2003 ' Texas Administrative Code Page 3 of 3 decision to the exempt utility and customers. The rates determined by tine executive director shall remain in effect while the commission considers the request or protest. If the request or protest is not acted on by the commission within 45 days after the date on which the executive director mailed his decision on fa. res to the exempt provider a~d customers, the request shall be deerned to be overruled. (D) A rate change application filed by an exempt utility that follows the rate change procedures in ¢291.22 o.l' this title w!llt be processed according to the requirements and procedures which apply to rate changes m~der that sectio~, (7) Unless authorized in w:dfing by the executive director, a utility or a water supply co~oration operating under 'these requirements may not cease utility operations. A utility' may not discontinue sen?ice i.o a customer with or without notice except in accordance with the Exempt Utility Tahff Fom~ and a water supply corporation may not discontinue service to a customer t:br any reason not in accordance with its bylaws. (8) A utility or water supply corporation operating under this exemption which does not comply with the requirements of these rules or the m. inimum requirements of the Exempt Utility Tad ff specified by' '~he executive director shall be subject to any and all enforcement remedies provided by this chaNer and the Texas Water Code, Chapter 13. (e) This subsection applies only to a home-role municipality that is located in a county with a population of more than 1.75 million that is a~acent to a county with a population of more than 1 mil. lior~, and has within its boundaries a part of a district. If a district does not establish a fire department under Texas Water Code, §49.352, a municipality that contains a pa~ o,f the district inside its boundaries may by ordinance or resolution provide that a water system be cons. tmcted or extended i~ato the area that is in both the municipality and the district for the delive:tI of potable water for fi:re 'l]ow l~hat is sufficient to support the placement of fire hydrants and the commction of tile water system to fire suppression equipment. For purposes of this subsection, a municipality may obtain single certification in the manner provided by Texas Water Code, § 13,255, except that the municipality may file an application w'ith the commission to grant single certification immediately a~er the municipality provides notice of intent to provide se~xfce as required 'by Texas Water Code, § 1A255(b). Som'¢e Note: The provisions of this §291,103 adopted to be effective October 9, 1990, 15 TekReg 4019; amended to be effective Janu.ary 10, 11996, 21 TexReg 11.4; amended to be effective Februa~ 4, [ 999, 24 TexReg 738 Next. Page Previ©us Page http:://inR,,sos.state.tx.us/pts/pub/readtacSext. TacPage?sl'-R&app::9&p di~=&p.?oc-&p... 10/17/2003 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY October 23, 200~ ' ~ Mr. & Mrs.. Brace and Tere,a Heifer dba Heifer Water Well 4708 East University Demon~ Texaz 76208 Application from Brace & Teresa Heffe~ dba t!effer Water Well te Register as an Exd~t Utility in Denton County; Application No, 34260-C Dan; Mr. &: Mrs. Heifer: The purpose ofthi, letter ia to follow up on our recent telephone conversation on October 16, 2003, regarding your application to register as an exempt utility. As you know, ~taffhas diligently worked with the City of Dmton to assist you in obtaining the city's approval to de~ertify the ama you requested in t~a application. Unfortunately, the City of Denton i~ reluctant to decertify this port/on oetheir Water CClq service area. Az required by Chapter 30-of the T~s~ Administrative Code (TAC), §291,103(d)(c) a utility exempt from the requirement to posse~a a CCN in order to provide retail water service if it is: a) b) ~ot within the cert.ificat~ area of another retail public utility, and is not within the corporate boundaries e fa district or mmficipatity unless it ~ece/ve~ written authorization from the district or municipality. For"the reamns listed above, Heifer Waler Well will be unable to register aa aa exempt utility ia Denton County. To assist you with avoidiag ~forc~ca~ actio~ you have ~v~al options. ~c is to file ~ applicatio~ ~ obtain a water CCN ~.d e~th~ dege~/~ or seek du~ c~i~ficatioa for ~e requested area ~m ~ Ci~ ofDeato~ Yo~ second option is to file ~ application.to discontinue s~vic~, From rcccn~ co~¢ation~ with Ma. ~la ~ch~son, Re, on 40~ce, ~d M~, L/~a M~jia~ UdHtid~ &Dtmficta Section, I ~deramd you would l/kc m file ~ applicagoa to obt~n a CCN. A copy of m appli~tioa to Obtain a C~ ia aaach~d for your rcvf~ an~ ~omatfon. f have m~e a refe~al to ~ur asai~mce coneactma, Texas Rural Wat~ A~$ociation (TRWA), to help you fill out ~e CCN application. Thls'~istmce fa kee ofch~ge. Someone ~m ~WA '~11 be calling ~u ~ ~e n~t ~e, wee~ to ~et up ~ appointment Exhibit IV P~g~ 2 October 23. 2003 The Commission ~ki ~a~ H~ff~ Wa~ Well ~end a I~ ~ ~fing ~ with~aw ~e pmd~g a~lic~ion to re~st~ a~ ~ ex.pt utili~ once yo,~ Water C~ application ~ be~ ~t~ for If y~u have ~y que~om, plebe contact Ms. T~my Bent~ by phone at 5 I2/239-6136, ~ if by co~spond~ce please use Mail Code 153 in ~e l~t~he~ ~e~, Sincerely, Tammy Holguin-Benterr Utilkies & Di~triet~ Seetiot~ gncio,~urea (CCN Application & lnatmction~) WATER UTILITIES 901-A Texas Street Denton, TX 76209 (940) 349-8452 Fax (940) 349-7334 November 12, 2003 Ms. Tammy Holguin-Benter Utilities & Districts Section Water Supply Division Texas Commission on Environmental Quality Mail Code 153 P.O. Box 13087 Austin, Texas 78711-3087 Re~ Application from Bruce & Teresa Heifer dba Heifer Water Well to Register as an Exempt Utility in Denton County; Application No. 34260-C Request for time extension. Dear Ms Benter: The City of Denton Water Utilities Department requests the TCEQ's consideration for a time extension for the above referenced Exempt Utility application. The City staff has no legal authority to decertify any portion of the City of Denton's water CCN ( 10195 ) without formal action by our Public Utilities Board and City Council. The request for extension of this pending application will allow for the proper scheduling and decision-making process to occur. I have prepared and agenda item for the November 17, 2003 Public Utilities Board meeting to consider this issue and have previously provided written briefings to them on October 17 and 31, 2003. The tentative schedule for staff to take this item for consideration and final action by the City Council is December 16, 2003. The City of Denton would also request that the TCEQ staff reconsider it's present rule interpretation position and allow for this Exempt Utility application to be processed with our full support without the condition of having to decertify the City's water CCN to facilitate this. We still view this alternative to be the most favorable to all parties concerned. If this is not possible, we anticipate that the Council's final decision on decertification can be finalized before the end of this year or by no later than January of 2004. If you have any questions or need further assistance, please call me at 940-349-7190. Thank you for your consideration in this matter. EXHIBIT V Sincerely, Tim Fisher, P.E. Assistam Director of Water Utilities City of Demon Cc: Doug Holcum, TCEQ Teresa Heffer WATER UTILITIES 901-A Texas Street Denton, TX 76209 (940) 349-8452 Fax (940) 349-7334 December 3, 2003 Ms. Tammy Holguin-Benter Utilities & Districts Section Water Supply Division Texas Commission on Environmemal Quality Mail Code 153 P.O. Box 13087 Austin, Texas 78711-3087 Re~ Application from Bruce & Teresa Heffer dba Heffer Water Well to Register as an Exempt Utility in Denton County; Application No. 34260-C Request for time extension. Dear Ms Benter: The City of Denton supports the registration of the above referenced Water Well System as an Exempt Utility under TCEQ regulations located within Demon's City Limits and Demon's water CCN ( 10195 ). This decision includes a willingness to decertify this portion of Demon's Water CCN (attached Exhibit I) if necessary to support this registration. This water system currently has 14 connections and it is the City of Denton's understanding that Chapter 291, Subchapter G, Rule 291.103 limits registration as an Exempt Utility for water systems with less than 15 connections. It is also Denton's understanding that registration as an Exempt Utility will not result in this water system being issued a CCN of their own. Accordingly, the City of Denton's support of the registration is based upon the understanding that the water system will not expand their customer base beyond its present number of connections and will not be issued a CCN without proper notification and due consideration by the City of Demon. This decision was approved and is a part of public record at the November 17, 2003 Public Utilities Board meeting and by the City Council at their meeting on December 2, 2003. The City of Denton would also request that the TCEQ staff reconsider it's present rule interpretation position and allow for this Exempt Utility application to be processed with our full support without the condition of having to decertify the City's water CCN to facilitate this. We still view this alternative to be the most favorable to all parties concerned. If this is not possible, please advise what additional information Denton needs to provide or what the final decision by the TCEQ staff was with respect to the CCN status for this specific area of Denton's CCN Number 10195. EXHIBIT VI If you have any questions or need further assistance, please call me at 940-349-7190. Thank you for your consideration in this matter. Sincerely, Tim Fisher, P.E. Assistant Director of Water Utilities City of Demon Attachment: Exhibit I - Heifer Water Well System service area boundary and location map. Cc: Doug Holcum, TCEQ Teresa Heifer 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 CITY OF DENTON PUBLIC UTILITIES BOARD MINUTES November 17, 2003 Draft After determining that a quorum of the Public Utilities Board of the City of Demon, Texas was presem, the Public Utilities Board convened imo an Open Meeting on Monday, November 3, 2003, at 9:00 a.m. in the Service Cemer Training Room, City of Demon Service Cemer, 901-A Texas Street, Denton, Texas. PRESENT: John Baines, Bill Cheek, George Hopkins, Charldean Newell, Dick Smith and Don White (Baines and Cheek arrived late) EX OFFICIO MEMBERS Michael Conduff, City Manager Howard Martin, ACM/Utilities EXCUSED: Yolanda Guzman 8) Consider a request to decertify a portion of the City of Denton's Water CCN to support an application for an exempt utility status from the TCEQ for the Heifer Water System. Tim Fisher, Assistant Director of Water Utilities, presented this item. He noted that this discussion was a continuation of an issue from two previous Board meetings. Fisher reported that, in an effort to support the Heifer Water System in maintaining regulatory compliance and registering as an exempt Water Utility, the City should decertify the Water CCN. Fisher informed the Board that decertification removes the legal responsibility from the City to provide water service and supports the registration of the Heifer Water Well System as a utility that is exempt from having to hold a Water CCN. This process avoids the risk of the creation of a single certified water CCN for this area and decertification by the TCEQ of Demon's CCN for this area. Hopkins moved to approve agenda item #8, with a second from White. The motion was approved unanimously. Page 1 of l EXHIBIT VII AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: December 2, 2003 Police Jon Fortune, Assistant City Manager SUBJECT Hold a public hearing inviting citizens to comment on the proposed usage of the 2003 Local Law Enforcement Block Grant funding. BACKGROUND On September 4, 2003, the Police Department received approval of the FY 2003 Local Law Enforcement Block Grant from the Federal Office of Justice Programs in the amount of $32,375 with a required local match of $3597. Prior to the actual receipt of the funds, the Department must hold at least one public hearing regarding the proposed use of the funds. Additionally, an advisory board that includes representatives of groups with a recognized interest in criminal justice and crime or substance abuse prevention and treatment must be established to review the application and make a non-binding recommendation for the use of funds. The Board must include representatives from the local law enforcement agency, local prosecutors office, local court system, local public school system, and a local nonprofit group active in crime prevention or drug use prevention or treatment. Funding can be used for the following purposes related to law enforcement: (1) hiring and training of officers or support personnel; (2) overtime pay of officers and support personnel for a programmatic purpose; (3) equipment, technology, and other material directly related to basic law enforcement functions; (4) enhancing security measures in and around locations considered a special risk for incidents of crime; (5) establish multi-jurisdictional task forces; (6) establishing crime prevention programs; (7) defraying the cost of indemnification insurance for law enforcement officers. At this time, the Department intends to use the funding for the purchase of equipment, specifically; digital cameras and related software to enhance the processing and collection of photographic evidence of crime scenes and victims; equipment and training on less-than-lethal force options for the purpose of providing officers various methods of disarming and apprehending potentially violent offenders prior to the use of deadly force; surveillance cameras, monitors, and security systems for the purpose of enhancing the physical security of the Police Department and Court facility. PRIOR ACTION/REVIEW The required local match is included in the proposed FY 2003-04 budget. At the time this report was submitted, the Advisory Board had not met. FISCAL IMPACT The funding for this program is as follows: Federal Contribution City Contribution $32,375 3597 Total $35,972 Respectfully submitted, Prepared by: Lee Howell Captain Support Services Division Charles Wiley Chief of Police AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM: December 2, 2003 City Manager's Office Michael Conduff, City Manager SUBJECT Consider a request for an exception to the Noise Ordinance for the purpose of "Christmas on the Square" hosted by Grace Temple Baptist Church, to be held in front of Denton Community Church at 115 N. Elm on Sunday, December 7, 2003 from 6:00 p.m. to 8:45 p.m. The exception is specifically requested for the day of the week. BACKGROUND A1 Camp, minister and administrator for Grace Temple Baptist Church, has submitted a request allowing them to use amplified sound for a live musical performance on Sunday for a holiday gathering on the square. The music will include the Grace Worship Choir and an orchestra including a variety of instruments. Attendee participation in the singing is also planned. This is community event to which everyone is invited which is intended to promote overall goodwill and joy of the season. Grace Temple Baptist Church has for several years chosen the downtown square as the venue for this event as they feel it compliments the home town feel they want the event to reflect which in turn promotes the often forgotten values of kindness and neighborliness. PRIOR ACTION/REVIEW (Council, Boards or Commissions) None FISCAL INFORMATION None Betty Williams Director of Management and Public Information Prepared By: Pamela Rambo-Estill, Assistant to the City Manager Attachment: Letter from Grace Temple Baptist Church Nov-13-O3 O3.'59P Denton Parks and Rec. 940 349 8384 P .O2 I~JU2 ~U~Nov~nb~r 13, 2003 RCH V/S/ON: The vision of Gme Temple is to be a Biblically functioning ohu~h. 321 Denl Deal Sine pron of C] McLcod iai Evont. q Coordinator uf Denton McKinncy Si n, TX 76201 Ms. McLeod: 997, Grace Temple has lgld an cvcnt e. ach ~ber that we call Christmas' on the Sgt~are. evem i~ held on the square in dow~town Dent~n. Hot chocolate nad cookies of ali kinds am ~t for all who pa~s by or slay to listen and visit. Musi~ Js always on the agenda and includes rmnnces by the Graco Worship Choir and Orchestra as well as sing along time for all Each copies of the Holkhy Songbook published by the Denton Record Chronicle are reserved and out to attendees so ~ can l=~-ticipnte in sln~,~ the songs of the s~nson. Our goal is to o~e co,-,---~r ~a ~o spread the joy and hope ofthe season that came to us through the birth fist. ThislYear, Christmas on ttte Square is plann~ for Sunday, December 7 at 6:00 PM. We will bring all .~quipment ne~ed including speakem and sound equipment, lnsmimems included ia the orcl~slra arc a keyboard, guitars, Iramlmts, tuba, violins, oboe, flutes, French horn, bass guitar, We AC:I ~onc, and drum~, We will begin set up around 4:00 in tl~ afternoon and have cvetylhin$ .ed up by 8:45 PM. :el this event will benefit the commurdiy just as it has inthe past. People t]rom all walks of life chosen to fu~rticipate each year. As ~ drop by the square, their stomachs ate warmed with ~ot chocolate amt cookies and their hearts ate warmed with smiling faces and ~qvetings from Jly l:~OpJe, Just the fact that we m'e "on the square" gives a hometown/~mall town f~el and ores some old time valu~ ~t many of us tend to forgei a~out such a~ ~ and ~bodin~ss. We believe this event promotes the overall goodwill and joy of the season. It is for ~a~on that we a~ nskia~ for nn cxoeptlon to the noise ordinance for this event. k you for your consideration in thi.~ matter. We look fozwnrd to hearing from you. rely, ~np ,~ of Education & Administration 1106 W Oak St Denton, TX 76201-3932 ~4o-a a?-61 aT FAX 940.323-S7e8 S:Our Documelt s 'vliscellmleous 03 AlS cmlceling meeting doc AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: December 2, 2003 Legal Department Ed Snyder, Acting City Attorney SUBJECT: Consider a resolution of the City of Denton, Texas, canceling the regular Council meeting scheduled for December 16, 2003, to allow Council members and City staff to travel to New Orleans to support the UNT Sun Bek Conference Championship Football Team which will play in the New Orleans Bowl; and declaring an effective date. BACKGROUND: UNT Mean Green Football Team clenched their third consecutive Sun Belt title. This earned the Mean Green the fight to play an unnamed opponent at the New Orleans Bowl in New Orleans on December 16th of this year. Several members of the City Council and the City staff desire to travel to New Orleans to attend the game and to support the UNT Mean Green Football Team. But the City Council has a regularly scheduled meeting on the December 16th. Section 4.1 of the City Council Rules of Procedure requires the City Council to meet on the first and third Tuesday of each month unless the meeting is postponed or canceled for valid reasons. This Resolution, in accordance with your Rules, cancels the December 16th regular meeting to allow members of the City Council and the City staff to attend this important game and to support the Mean Green. The Resolution finds that this is a valid reason for canceling the December 16th regular meeting. OPTIONS: 1) 2) The City Council can pass the Resolution to cancel the December 16, 2003 meeting. The City Council can refuse to pass the Resolution and hold the December 16, 2003 meeting. RECOMMENDATION: Staff recommends that you choose Option 1 and pass the Resolution FISCAL IMPACT: There will be no fiscal impact as a result of this action. Respectfully submitted, Ed Snyder h ..... Acting City Attorney S:Our Documelt s Resolutions 03 cmlcelhlg cc meeting doc RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS, CANCELING THE REGULAR COUNCIL MEETING SCHEDULED FOR DECEMBER 16, 2003, TO ALLOW COUNCIL MEMBERS AND CITY STAFF TO TRAVEL TO NEW ORLEANS TO SUPPORT THE UNT SUN BELT CONFERENCE CHAMPIONSHIP FOOTBALL TEAM WHICH WILL PLAY IN THE NEW ORLEANS BOWL; AND DECLARING AN EFFECTIVE DATE. WHEREAS, Section 4.1 of the City Council Rules of Procedure requires the City Council to meet on the first and third Tuesday of each month unless the meeting is postponed or canceled for valid reasons; and WHEREAS, because of UNT's Football Team's victory of clenching their third consecutive Sun Belt Conference title, UNT has accepted a bid to play the at the New Orleans Bowl on December 16, 2003; and WHEREAS, several members of the City Council and the City staff desire to travel to New Orleans to attend the New Orleans Bowl and support the UNT Football Team; and WHEREAS, for the above reason, the City Council deems it in the public interest to cancel the regular scheduled meeting of December 16, 2003; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES: SECTION 1. The regularly scheduled City Council meeting of December 16, 2003 is hereby canceled to allow members of the City Council and City staff to attend the New Orleans Bowl to support the UNT Football Team. SECTION 2. The City Council finds that this is a valid reason for canceling the December 16, 2003 meeting. SECTION 3. That this Resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of _, 2003. EULINE BROCK, MAYOR S:Our Documelt s Resolutions 03 cancelhlg cc meeting doc ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM: December 2, 2003 City Manager's Office Mike Conduff, City Manager SUBJECT Consider nominations and appointments to the City's Boards and Commissions. BACKGROUND Listed below are the board and commission vacancies for this quarter. Animal Shelter Advisory_ Committee - two vacancies Susan Weinkein has passed away-Mayor Brock's nomination Darla Bostick has declined to serve-Council Member Montgomery's nomination Community Development Advisory_ Committee Barbara Stinnett has moved out of the city-Nomination for entire Council Library_ Board Che Norris is not able to serve-Council Member Redmon's nomination Zoning Board of Adiustment Bob Manning has resigned-Council Member Montgomery's nomination Denton Housing Authority - Mayor Brock will be making appointments to this board If you require any further information, please let me know. Respectfully submitted: Jennifer Walters City Secretary S:kAgenda Items\Board-Commission Quarterly Vacancies.doc Process [] P & z Sub-Committee [] 4 Community Meetings [] P&Z Work Session & Public Hearing Highlights [] Preserves Large Native Species & Historic Trees [] Requires a minimum percentage of existing trees to be preserved [] Allows for mitigation of 50% of required preserved trees [] Allows for an Appeal Process [] Provides Incentives [] Creates a Tree Fund [] Requires Tree Protection During Construction [] Eliminates the Indiscriminate removal of Large Trees 2 Incentives [] Meet or exceed requirements requires simplified tree inventory [] Additional Credit (towards landscape requirements) [] Individual trees [] Tree Stands [] Parking Spaces (increase or decrease required amount) [] Parking Lot Design ESA Only site Features: 20 Acres of ESA Upland Habitat 3 ESA Only Site Features: ESA & Other Trees · · 1 Protected Tree I · Quality Trees · 6 trees @ 4" dbh · 4 trees @ 8" dbh · 7 trees (~12" dbh Total 140" 4 ESA & Other Trees Presewa~ton Single-Family Multi-Family Non-Single Family Preser~tlon Site Features: '~ ~--~ On-~;~ Trees · 6 ^eree of Ous,ty Tree Stand · 100' x 100' Sample Area identifies 72 trees and a total dbh of 722". · The 5 acre stand would then equal 15,682 trees with a total dbh of 157,251" i · e i · 1 Protected Tree · Quality Trees · 6 trees @ 4" dbh · 4 trees @ 8" dbh · 7 trees ~)12" dbh · 17trees @ 140" · 15,699 total Quality Trees @ 157,391" dbh 5 Non-ESA Trees Tree Inventories [] 20 Previous Tree Inventofles ~! 3,248 Total Trees Identified [] 3,061 Trees (94%) on the "List" 3" & less = 7.5% 4" & less = 17.5% 6" and less = 33.6% 8" & less = 49,7% 14" & greater = 28.9% 16" & greater = 21.7% t8" & greater = 18.8% 20" & greater = 12.0 % 22" & greater = 9.6 % 24" & greater = 8.4% 26" & greater = 5.5 % 6 Tree Inventories [] 20 Previous Tree Inventories [] 3,248 Total Trees Identified [] 2,495 Trees (77%) on the "List" 3" & less = 6.4% 4" & less = t3.5% 6" & less = 28.9% 8" & less = 49.7% t4" & greater = 32.9% 16" & greater = 25.3% 16" & greater = 22.2% 20" & greater = 14.2 % 22" & greater =11.5 % 24" & greater = 10.1% 26" & greater = 6.5 % FROM : WHITMIRE LINE CLEARANCE PHONE NO. : 940~$$3008 Dec. 02 2003 05: 12AM P2 817t Highway 377 ., Pilot Point, Texas 76258 1-866-827-TREE December 2, 2003 Honorable Euline Brock Mayor, City of Denton and Members of the Denton City Counsel Dear Sir or Madam: My name is Lan~ Elldn& I am a msideat of Denton and a Certified Arberist. I have been actively involved in the Tree Preservation me~ingS and wonV, shop. I have also subm~ed materials on numerous occasions at the request of Nona Muncie, the City Landscape Administrator. I do have a few concerns regarding the daft Tree Preservation Ordinance that has been submitted. I feel that two-inch trees ate too small to qualif~ as protected trees. Most city ordinances do not star protection until four to eight inches in diameter. The Pmtectad Tree Species List on page 3 and 4 includes eeveml tmas that I feel should not quali~ as prote~ed tmas in 1he format that has been submitted. These trees would not be considered a 'quality' tree except in certain limited occu~'ences. I also feel that the DBH for the Protected Tree Species List is not speci'es specifin. Some of the trees listed as 'Large Trees' should actually belong in the "Medium Tree" list. Also, the DBH of the "Small Trees' is much too large, it would be diffi=ult to find these species of trees that even roach 6' DBH, I would like to submit a different way to categorize the protected treas. It also puts the trees into three separate categories. This methed is also used in the Keller and Soathlake ordinances. (See attachment ~) I also include a clil~erent tree spe~es list to be considered. This list is broken down into Quality, Marginal, and Undemto~y categories. (See attachment fl2) The draft Tree Preservation Oldinance that you are considering does not have a Replacement Tree Sbeeies List for mplacemeat trees. Since this indudas trees such as Ha~l,,beny, Bols d'Am. Honey Locust and other tmas rarely considered 'quality'. I feel a more spec~c Replacement Tree List shouM be considered. (See attachment #3) I appreciate the oppor~nity to submit these rec~mmen=lations for your consideration. If I may answer any queslions or may be of assistance, please do not hesitate to call me to call me at (940) 365.3800. Sincerely, Lan'y Elkins Ce~lifiad A~borist FROM : WHITMIRE LINE CLEARANCE PHONE NO. : 94036531B08 DEc, 02 2003 05:13AM P3 Attachme.~t ~ 3, Proteotod Tree .~hal! bc any existing, living tree ora spocio~ or type list~l in thc City of Denton's'Trotcetcd Tree List." This list being in three (3) s~paratc categories' ' 1. Quality A tre~ with a diameter of six inc, bes (6") or greater at four and one-half f~t (4.5') above the ground which tho City has dot,mined typically has signific~t positive characteristics worthy of preservation. A ~a'ee with a diameter of six inches (/5') or greater at four and one-half feet (4.5') above tho ground which the City or Landscape Adminiahator* has detcrmln=d should bc saved duc to individual characteristics of the tree. 3. Understory A trcc with a diameter of four inches (4'9 or greater at four and one-half fcct (4.5') above the ground which thc City has dctcrmined has significant positive characteristics worthy of preservation and that does not typically attain groat size. The diameter of a multi-trunk t,== shall bo d~termin~.d by ,dding the total diameter of the largest trunk to one-half (1/2) the diametcr of each additional trunk, *The position responsible for implementation and enforcement of the ordinance..4 C~rt~fled Arbor~t couM be used to make this determination. FROM : WHITMIRE LINE CLEARANCE PHONE NO. : g403G531B08 D~c. 02 2003 05:13AM P4 Attachment 2 QnnHtT Trees Shumard Red Tex~s Red O~ Post O~ B~ O~ ~fnq~ O~ Sa~o~ ~ W~t~ O~ B~d Sou~ ~o~ Sw~t~ C~ E~ Mare[ual Trees ime~ic~ Elm Mesquite Sycv, mor~ Laceb~rk Elm Texas Ash Green Ash Western Soapbcr~ Flow~ing Pear Understory Trees Redbud Mexican Plum Possumhaw Holly Golden Rain~ee Yaupon Holly Cherty Laurel Riv~ Birch Eves Necklace P~rslmmon Rusty Blaokhaw Wax Myrtle Crape Myrtle FROM : WHITMIRE LINE CLEARANCE RHONE NO. : 9403653008 Dec. 02 2003 05:13AM P5 Attachment 3 Tree P~lanline and. Rcvlaccmenl List louthcm I. Jvc Oak Shumard Red Oak Texas Red Oak Chinkapin Oak Burr Oak Sa~looth Oak ~tcr O~k Winged Him Cedar Elm Bald Cypress P{~can Ckinese Pist~ch. ]3aster Red Cedar Sweetg~m 12:01-2005 07:21pm From-HUGHES&LIJCE LLP HUGHES,LucE LLP ATTORNE¥~ ANn COUNSEt~R$ FAX T-160 P.001/003 F-106 Austin Dallas To: ~ RECIPfENT Mayor Euline Brock City of Denton FROM: NAM£: Mehssa D. IAndelow PHONE: 214.939.5494 i~ PGS.; FaxNo. (~o) 3¢~-8596 COMMENTS: DATi/: December 1, 2003 C/M #: 1~95/10 PHON£ No. 040) 34g-77~7 2'3~as ~n ~s m~endeclonly for the ~se ot ~ m~ ex~pt ~m ~s~e ~ apphcabl~ ~W' It ~b~ for ~hv~g ~e ~on w If you do not receiva ~ pages, please c~ us at 214.~9.5~1 ~ soon as possible 1Z:O1-ZO03 O?:21pm From-HUGHE$&LUCE LLP +214~3~6100 T-160 P.002/005 F-105 HUGHES LUCE LLP AI'rOR~EY~AN~COUNSECOR~ 1717Nmn~tree~,Su~2800 2]~930.550G December 1, 2003 hughesluCc.corn H~J~sa O. Lind~low Mayor Euline Brock City of Denton 215 E. McKizmey Denton, Texas 76201 Proposed Tree ~r~eservation Ordinance Dear Mayor Brock: I work with lke Shupe, and we represent a property owner who owns land in the City of Denton that would he subject to the proposed tree preservation ordinance. I understand that you have a dernartding schedule, bur ! am hoping you will take time ro review the comments ! have listed below regardit3g rite current d.raft. The ordinance, as drafted, raises many legal and practical concerns. For example, it would require a developer to preserve a Crape Myrtle that is 6 inches or larger in diameter, and a I-Iackherry that is 20 inches or larger in diameter, yet the same ordinance would allow a developer to remove a medium sized Post Oak. It str~kes me that there may be a gap in reasoning when I read this ordinance, and that there may be a better way to achieve the interests of the city, its citizens, and developers without compromising the spirit of the current draft of the ordinance. In addition, I would like to state my belief that developers in the community are not opposed to the notion of tree preservation, but instead feel that when a city demands preservation, the species should be of a type and size that warrant preservation and there should be a reasonable and efficient process for affording relied from such a requirement in the event that preservation cannot be achieved. The current draft of the ordinance does not provide such a process, and as a result ir raises serious legal and practical concerns for property owners who wish to develop or redevelop their land. The following is a list of what I feel are the most serious concerns with th~ current draft ot the ordinance: The relatively short list of protected species required to be mitigated and/or preserved includes Locusts, Hackherries, and Bois d'Arcs, yet it excludes many other more valued species. 01~9~.0~20.813~67/11 1~-01-Z003 O?=elp~ Fro~-HUG~£S&L~C~ LLP +214~906100 T-160 P.003/005 F-106 HUGHES, LucE LLP ,qTORNI:YS AND C01.1NS£LOItS December 1, 2003 Page 2 Mitigation and preservation both apply m trees as small as 2 inches in diameter. A perm/t is required to remove ALL trees, including trees less than 2 inches in diameter (saplings?). The preservation and mitigation requiroanen~ apply only to new development and redevelopment, unfairly peva!~z/ng those who are improving the~ land while offering an exemption to all other property owners who wish to reraove trees for any reason. The standard for designat/on of Historic Trees, which must be preserved, is too vague. For example, any tree of "unusual age or size" could be designated. Specific criteria is necessary to put property owners on notice and to gu/de city officials in the landmark designation process. The current appeal process for trees that cannot be preserved is lengthy and contains no standards to guide the City Council in requiring mitigation. Basically, the City Council, after a unjust/ably prolonged zoning change process, would have unbridled d/scretion in determining the necessary measures to mitigate the loss of certain trees. Staff and the P&Z refused to place a cap this discretion. Are the three standards for the appeal process cumulative? There is no "and" or "or" between each standard, and it remains unclear despite our e/form to obtain clarff/cat/on. This issue, which is one of several that I wilI not waste yoox time describing, ~us~ates the ryl~s of drafting issues that the ordinance raises, yet staff reftlses ~o clarify at~d col'l'ect. This ordinance originated as an incentive-based ordinance, yet after numerous rewrites k/s essen~!~_y without incentives. Although staff purports to have included incentives in the oral/nonce, in reality they offer no incentives for developers who remove Quality Trees. Even staff adrn/m there are no incentives to s~ve Protected Trees or Historic Trees, other than to avoid a citation. Preservation of those trees is n'mndatory. Subsection 10 states that "preservation shall be the first, best and standard approach. If preservation cannot be achieved, on-~ite mitigation shall next 12:01-2003 0T:22pm From-HUGHE$&LUC£ LCP +214~9~100 T-160 P.004/005 F-106 HUGHES LUCE LLP ATTORNEY~AN~ COUN~ELO~ Decemberl, 2003 Page3 be pursued." This sentelace creates ambiguity with regard to the ability of a property owner to remove and mitigate certain quality trees by right, although other sections of the ordinance clearly allow property owners to do so. This sentence should be eliminated or revised. Ike Shupe and I attempted to raise these issues with planning and legal staff. U~ortunately, our efform were in vain. Staff did nor responcl to our emails in which we raised several of the issues otltlined above, nor d~d they respond to issues we raised in a face-m-face meeting. The P&Z members were equally unresponsive, as demonstrated by the public hearing discussion on November 1Z 2003. I am hoping that you will rake a hard look at these issues before making a determiv~tion on the ordinance. Most of these issues can be easily resolved ff the city would listen to the voices coming from both sides of the community, and the result could be an ordinance that leaves everyone in Denton with a sense of pride and satisfaction, rather than an ordinance that will need to be revised during the next quarterly review of the Development Code (the fate predicted by several P&Z members at the public hearing). I have atractmd a diagram illustrating the operation of the critical provisions in the ordinance. If you have any questions or concerns, I would be happy ro discuss these issues with you, Respectfully submitted, Melissa D, Lindelow 1~-01-2003 O?:22pm ;rom-HUGH£S&LUCE LLP +214~39~100 T-160 P.OOS/OOE F-106 12/01/03 16:56 F~ 940 696 6606 RICK B~RIA MGR ~001/001 To the Honorable members of the Denton City Council: Nov. 2g, 03 RE: Community Vs Individual interests The loss of the grand Post Oaks on the Flow site brings a sharp focus on the details of the proposed T~ee Preservation ordinance and asks us to explore the issue of individual property dghts and community interests. I pray you give deep thought to this ma~ter. Several participants in this civil process have expressed concern for "property rights", the right to own and use property for our benefit. That Great Declaration of "life, liberty, end the pursuit of happiness" comes to mind. The author broadened Locke's 'life, liberty, and propertt/; (emphasis mine) with the clarification that one's activities are not to be hindered. Indeed. this freedom has brought peace and prosperity to the greatest number of people in history. I wish to point out, however, that Jefferson himself, a man cf fairness and intellect unparalleled to the present, recognized limita§orls on the right to property. One of these goes to the core of the issue that faces us. Simply expressed, the use of the earth's bounty belorlgs to the living. The encumbrance of futura yields, or the liquidafion of a common good, diminishes the citizens of tomorrow and cannot be allowed except in the most exigent of civic circumstances. S{nce the lifetime of a tree can be a few hundred years the loss of its removal can extend into the next generation, the proposed mitigation notwithstanding. This is recognized {n the limitation of logging activities in national forests. It's been suggested that the Post Oak forest is the last stand of trees westward to the Pacific and therefore its preservation is justified. True, this forest provides shade, cooling, and beauty for all to see: a common good. However, it is not communa//y owned, These benefits accrue to us only at the owner's sufferance. Without doubt the restrictions of this ordinance fall on those few who own or seek to develop treed preper~y. How can we equitably padJfion the individual and commun[ty interest? I offer the concept of riparian water rights and hunting and fishing regulations. The holders of dpafian rights may impound streams and make economic use of the water, as long as they do not diminish the Hghts of others. They must limit themselves reasonably and take the needs of others into account. Catch limits and game restrictions recognize natural limits and control predation. This proposal attempts to do the same and very nearly succeeds. I encourage you to approve a Tree Preservation ordinance. With few exceptions, developer initiated preservation has been typically appalling. My few objections to the proposal follow;, I think it will have unintended consequences as it is now wdtten. Thank you, Rick Baria · lz/uz/o3 09:28 FAX 940 898 8800 RICK BARIA MGR ~001/002 To the Honorable members of the Denton City Council: RE: Tree Preservation Details I applaud the effort from P&Z and staff, Larry Reichhart, deserves recognition fo~ developer incentives and the simplification of the tree inventory process. (My objections are towards extraneous provisions suggested by others.) In the hope that you'll give weight to my views I mention something about my backgreur]d. When you .rigor (and leaner) 1 used to climb and prune trees. Supervised crews that installed the bulk of landscape at EDS in Piano: hundreds of trees. I've designed and built patios, shade structures, ponds, stone walls, walkways, sprinkler systems, and a few houses. Made extensive structural repairs to the "Selby" house. With AutoCad I've drawn floor plans and done subdivision layouts; one design was 450 acres with considerable graenspace. I believe houses can be built into the forest using a "low impact~ model for development; we just need to exercise our creativity. PP 1: Defines Purpose and Intent of the ordinance. Sections B and C mention 'positive image...quality trees...aesthetic values'. Why then are Hackberry, Locust, and Bols al'Arc on the protected tree list? The images presented by these species are; fence rows with splitting, warty, multiple trunks: four-inch tri-pointed thoms, and sticky green horse-apples. Mike Cochran has proposed the inclusion of many "overlooked" species and further suggests that we move to include all trees in the name of sin3plicity. I call this the '~A/oody Biomass" approach. Of course any shade is good; but some species serve us better. An important distinction of Denton's ordinance is in the level of preserver/on. Once a tree on the list reaches a certain trunk diameter, the ground under its canopy attains a degree of "sanctity"; it becomes "Protected". A deve!oper's infrastructure must go around, or tunnel under this zone. The bestowal of "sanctity" on a 40 to 50 foot circle cf ground adds another layer of complexity for the designer because it re~trainslocetion. We should therefore, extend Protection only to impressive specimens cf aesthetically valuable species. All species listed as Large'Trees attain Protection at20" DBH. This paperunlformity does n~ coincide with nature's reality; differing species do not reach equal girth with equal occurrence. I foresee a disturbing unintended consequence. Many more Hackberries would attain Protection than Post Oaks. Let's not become known as Hackberry City! DBH The cut-off diameter ought to conform to a reasonable value for a species in the buildable areas of Denton and ETJ. (floodplafn sizes are irrelevant) Obviously if the Protected DBH is too Iow it becomes impossible to build; too high and we protect imaginary trees. Predictably an activist citizen asks for 10"; the development community favors 24", What to do? We could select a percentage for Protection by DBH ranking. To determine the DBH at a particular percentile we simply add up the totals at each increment of DBH until we reach that posen of the total and read off the DBH value. (I encourage you to study the data from pre-development Tree Surveys) I believe that 90% of the remaining Post Oaks are under 16~ DBH and noted a strong correlation in the surveys. Of course the size distribution is not uniform. Some sites are rocky, have never been thinned out since the second growth, end the mean DBH might be 8". A site with deep soil and space · 12/02/03 09:29 FAX 940 898 8806 RICK BARIA MGR ~002/002 between the trees might run 18". (Think of the NW corner of 2181 and Hickory Creek Rd) On some sites perhaps not one tree would qualify for individual Protection but the preservation percentage would still be assured. I agree with Mr, BucelJ's assessment that the effect of the ordinance would become, as he puts it, "site spec'~ic". If the DBH for Protection is reduced (and I hope it is) developers may ask for a more codified amelioration and relief process or the simplification of an increasingly "expensive" replacement ratio. The latter would give the developer the costs to remove a "significant" tree. If your partner owns the Dallas Cowboys you might be prepared for any contingency, but if you're a local builder then a more defined process would be comforting. Given site variability, one approach would be to Protect the largest 10%, whatever the size. However, since Protection is a Iocafion restraint, the randomness of tree distribution would insure that some would apply to the relief process. As a designer, I feel that the natural assets of the site are the features that allow me to differentiate from the ordinary. My family has a few acres of treed preperty that we will wish to develop in the near future. Some of the trees surpass the 20" threshold but I could support a reduction in the Protected DBH. In fact, I hope to earn Preservation credits. Final Quibbles with the Proposed Ordinance: Red Cedar should be moved off the Medium Tree list or the Protected DBH increased. (The two arbodsts at the last public meeting agreed with this assessment.} Paragraph 13 sec. F, I wlsh to use Helical piers to support a house in close proximity to existing trees. These are "screwed" into undisturbed soil with a hydraulic torque motor. Some roots would be severed cf course, perhaps equivalent to a 6" borehole, and the machine that drives them would cross the root zone for about 20 minutes a pier. A stdct interpretation of this rule would prohibit this Iow-impact approach to foundation loads. The stipulation of "hand methods" is laudable but a requirement of methodology can reasonably be challenged. For instance, tracked skid-leaders put less pressure on the soil than a human footprint. (I've seen them cross mud you couldn't walk on) it is a simple thing for the operator to make his turns out of the root zone. On a larger property a tree shear on such a machine could prove efficient and non-compressive. You might stipulate the maximum ground pressure or add the phrase "or any other Iow-impact method approved by... (name the city official) otc. G; It might be clarified ,.. grade changes up to :25% of the CRZ and no closer to the trunk than 60% of the radius at any point.., upon proper notification and approval by the city of the additional measures to ensure viability... (This would allow design without so much consultation) · 14 Sec. 1. Overhead utilities should not be construed to mean cable and phone: they are sheathed and present no danger. Crepe myrtles and a few other small trees can easily meet the vertical constraint. (the city may wish to approve the Variety) I thank you for your service to our community, Rick Bade - ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 CITY COUNCIL AGENDA ITEM #4F CITY OF DENTON PUBLIC UTILITIES BOARD MINUTES December 1, 2003 After determining that a quorum of the Public Utlifies Board of the City of Denton, Texas was present, the Public Utilities Board convened into an Open Meeting on Monday, December 1, 2003, at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901-A Texas Street, Denton, Texas. PRESENT: John Baines, Bill Cheek, Yolanda Guzman, George Hopkins, Charldean Newell, Dick Smith and Don White EX OFFICIO MEMBERS Michael Conduff, City Manager Howard Martin, ACM/Utilities CONSENT AGENDA The Staffrecommends each of these items, and approval thereof will be strictly on the basis of the Staffrecommendations. Approval of the Consent Agenda authorizes the Assistant City Manager for Utilities or his designee to implement each item in accordance with the Staff recommendations. The Public Utilities Board has received background information and has had an opportunity to raise questions regarding these items prior to consideration. Listed below are bids or purchase orders to approved for payment under the Consent Agenda (Agenda Items l& 2). Detailed information is attached to each Consent Agenda item. This listing is provided on the Consent Agenda to allow Public Utilities Board Members to discuss or withdraw an item prior to approval of the Consent Agenda. If no item is pulled prior to consideration, Consent Agenda Items 2 & 3 below will be approved with one motion of the Board. If any item is pulled for separate discussion, such item or items will be considered as the first items taken up under the "Items For Individual Consideration" section of the agenda, set forth below. Council Agenda Item #4F 1) Consider approval of the unit prices for transformers and options in Bid #3105 from Waukesha Electric Systems to enter a three-year agreement for purchase of 15/20/25 MVA substation power transformers. 2) Consider approval of the Solid Waste staff's recommendation to award the purchase and installation of Caterpillar's Computer Aided Earthmoving System (CAES), to Holt Caterpillar of Fort Worth, Texas, in the amount of $72,914. The CAES system will be installed in the Landfill's 2004 A1-Jon compactor, expected to be received during January 2004. No request was made to withdraw Item 1 or 2 from the Consent Agenda. Board Member George Hopkins moved to approve the consent agenda with a second from Board Member Bill Cheek. The motion passed unanimously. Page 1 of 1 CITY COUNCIL CONSENT AGENDA ITEM #4M RESOLUTION NO. R2003- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, THE AUTHORITY TO DECERTIFY A PORTION OF THE CITY OF DENTON'S WATER CERTIFICATE OF CONVENIENCE AND NECESSITY ("CCN"), IN ORDER TO SATISFY TEXAS COMMISSION ON ENVIRONMENTAL QUALITY ("TCEQ") REQUIREMENTS, REGARDING THE APPLICATION FOR EXEMPT UTILITY STATUS TO BE FILED BY THE HEFFER WATER WELL SYSTEM; AND PROVIDING FOR AN EFFECTIVE DATE WHEREAS, Staff has been working for the past several months with both the Texas Commission on Environmental Quality ("TCEQ") and Teresa Heffer, the owner of a small water system located on East University Drive near the intersection of Trinity Road; and it is Ms. Heifer's objective to achieve certification as an "exempt utility" with the TCEQ respecting her small water well system; and WHEREAS, applicable State Law, being Title 30, Part I, Chapter 291, Subchapter G of the Texas Administrative Code ("TAC"), containg the Texas utility regulations for obtaining CCN's. In particular, §291.103 of the TAC outlines a criterion under which retail water service can be provided that does not require possession of a CCN. More particularly, §291.103(d) TAC covers utilities or water supply corporations who have less than fifteen (15) customers, and characterizes such utilities as "exempt utilities." Further, §291.103(d)(1) TAC requires the City, as a condition of allowing Ms. Heifer's registration of Heifer Water Well System as an exempt utility, to do one of the following acts: either to decertify the City's water CCN or to provide written permission; and WHEREAS, in general, CCN holders are larger water utilities that meet the TCEQ's definition of a "public water system" (fifteen connections or greater), and the "exempt utility" process is designed to allow small non-public water systems (such as this small system) to comply with TCEQ regulations without having to hold a CCN; and WHEREAS, the City Council considers this to be the least costly solution to both the owner of the well as well as her customers; further, decertification supports the registration of the Heifer Water Well System as a utility that is exempt from having to hold a Water CCN and also avoids the risk of creation of a single-certified water CCN for this area for Heifer Water Well System and a decertification of this CCN area of Denton by the TCEQ; additionally, as the affected tract of land lies wholly within Denton's city limits, the City does not need a CCN to provide water service to these citizens, should they want water service at some time in the future; and WHEREAS, decertification, as requested by Ms. Heffer, removes a legal responsibility from the City to provide water service to this small area. In general, the City's responsibility to provide water service does not require extension of water service at the City's expense. The TCEQ's authority, most importantly, doe not include jurisdiction over utility extension policies. The historic, as well as the current extension policy of the City is based upon the end user's responsibility to pay for such water line extensions as are necessary to serve their property. The City Council has also determined that this extension policy is consistent with the extension policies for most cities and water supply utilities in the state that provide retail service to the customers in their service area. NOW THEREFORE THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES: 1. That the City Manager, or his designee, is hereby authorized to take all actions necessary and proper to implement the provisions of this Resolution, to include, without limitation, the execution ora letter or letters evidencing the City's release of its water CCN as to the Heifer Water Well System only, conditional however, on the successful apphcation of the Heifer Water System for certification as an "exempt utility" with the TCEQ; which letter(s) and any other documents, shall be approved as to legal form by the City's Utility Attorney, respecting the above-described transaction. 2. That the City Council hereby finds and declares all that all recitations contained hereinabove are tree and correct; and it hereby approves and adopts the same herein as part of this Resolution. 3. That this Resolution shall be effective from and after the date of its adoption. PASSED AND APPROVED this day of .,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTOR/xrEY S:\Our Documenls\Rcsolutions\03\Water Decertification-Heffer Water Well System-Resolution-2003.doc 2