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HomeMy WebLinkAboutMarch 2, 2004 Agenda AGENDA CITY OF DENTON CITY COUNCIL March 2, 2004 After determining that a quorum is presem, the City Council of the City of Demon, Texas will convene in a Work Session on Tuesday, March 2, 2004 at 4:00 p.m. in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: Receive a report, hold a discussion and give staff direction regarding proposed revisions to current ordinances that regulate solicitors and itinerant vendors. Receive a report, hold a discussion and give staff direction regarding proposed changes to the current Food and Food Service Establishments Ordinance. o Requests for clarification of consent agenda items listed on the consent agenda for today's City Council regular meeting of March 2, 2004. 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: mo Deliberations regarding real property - Under Texas Governmem Code §551.072 and Consultation with the City's Attorneys - Under Texas Government Code §551.071. Discuss and deliberate the potential value of and the sale or lease or other disposition of numerous tracts of certain real property and appurtenances, thereto, consisting of street right of way all owned by the City of Denton, Texas, being situated throughout the City of Denton, Texas relating to fiber optic operations both inside and outside the city limits of the City of Denton, Texas; and the receipt of legal advice from the City's attorneys on matters in which their professional responsibility to the City Council regarding real estate matters requires private legal consultation. 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 March 2, 2004 Page 2 Regular Meeting of the City of DeNon City Council on Tuesday, March 2, 2004 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 mo 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 mo Receive citizen reports from the following: 1. Bill Brasfield regarding the City of Demon. 2. Peternia Washington regarding responsible and responsive governmem, part 2. 3. Ed Soph regarding environmemal policies in Demon. 4. Dessie Goodson regarding truth and justice. 5. Alan Michlin regarding north Loop 288. 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-N). 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, Consem Agenda items A-N 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. mo Consider approval of the minutes of January 20, January 27, February 3, and February 10, 2004. Bo Consider a request for an exception to the Noise Ordinance for the purpose of a music festival conducted by Creatures for Awareness, at the North Texas Fair Grounds, on Saturday, March 27, 2004 from 12:00 Noon to 10:00 p.m. The exception is specifically requested for an increase in the maximum allowable decibels for an outdoor music festival. City of DeNon City Council Agenda March 2, 2004 Page 3 Consider adoption of an ordinance accepting competitive bids and awarding an annual contract for the purchase of water treatment chemicals; providing for the expenditure of funds therefor; and providing an effective date (Bid 3131 - Water Treatment Chemicals awarded to the lowest responsible bidder in the total estimated amouN of $500,000). Consider adoption of an ordinance accepting competitive bids and awarding an annual contract for the purchase of long-term rental of heavy equipment for the Solid Waste Department; providing for the expenditure of funds therefor; and providing an effective date (Bid 3132 - Long Term ReNal of Heavy EquipmeN awarded to T-K-O EquipmeN Co. in the estimated amouN of $66,500). Consider adoption of an ordinance of the City of DeNon approving a change order for a professional services agreemeN between the City of DeNon, Texas and Innovative Transportation Solutions, Inc. dated March 5, 2002; retroactively extending said agreemeN, and authorizing and ratifying the expenditure of funds for work previously performed; authorizing the City Manager or his designee to execute the change order on behalf of the City and expend funds authorized by the change order; and providing for an effective date. Consider adoption of an ordinance of the City of DeNon, Texas approving an Agreement between the City of Denton and the North Texas Umpire Association; approving the expenditure of funds for the purchase of certified softball officiating services available from only one source in accordance with the provisions of the state law exempting such purchases from the requirements of competitive bids; and providing an effective date (File 3145 -AgreemeN with North Texas Umpire Association in the amount of $40 per game for an estimated award of $44,000). Consider adoption of an ordinance of the City Council of the City of DeNon, Texas authorizing the City Manager to execute a Professional Services Agreement with R. J. Covington Consulting, LLC for consulting services relating to Task Order No. 04-A, regarding the Texas Nodal Team Process to Redesign the Texas Electrical Market relating to the City's position on issues and the interests of Denton Municipal Electric; authorizing the expenditure of funds therefor; providing for retroactive ratification and approval thereof; and providing an effective date. Consider approval of tax refunds for the following property taxes: Tax Name Reason Amount Year I a ~a i~ ~i~at~ eay~nt $ 5 2. Toni Porter Overpayment 2003 572.62 ~ ~upli at~ P~ nt ~00~ ! 30 4, Lereta Co~oration Duplicate Payment 2003 634:48 6. Countrywide Home Loans Duplicate Payment 2003 693.35 al Sav~n g s ~ up l~¢at c P ¢ nt 2003 ~0. ~3 City of Demon City Council Agenda March 2, 2004 Page 4 Tax Name Reason Amount Year 8. Colonial Savings Duplicate Payment 2003 711.72 9 ~¢m~a Co~orat~oa Duplicate P cnt 2003 ~94,8~ 10. Washington Mutual Overpayment 2003 887.92 12. Lereta Co~oration Duplicate Payment 2003 941.12 I3. Eere~a Co~o~ation Ove~ ent 2003 968.5~ 14. National CiW Mo~gage Ove~ayment 2003 1,067.39 Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Pipeline Crossing Agreement with Union Pacific Railroad Company for a pipeline crossing located at Mile Post 723.10, Choctaw Subdivision, City of Denton, Denton County, Texas; authorizing the expenditure of funds therefor; and providing an effective date. Consider adoption of an ordinance by the City of Demon, Texas abandoning and vacating its public utility easemems recorded in Volume 1421, Page 168, and Volume 2978, Page 915 of the Real Property Records of Denton County, Texas and being in the Poulallier Survey, Abstract Number 1006, Denton County, Texas; and providing an effective date. Consider adoption of an ordinance of the City Council of the City of Demon, Texas approving the Fourth Amendment to that agreement between the City of Demon and the Demon Affordable Housing Corporation; authorizing the City Manager to execute the Fourth Amendment and to expend funds with respect to the Fourth Amendment; and providing for an effective date. Consider an ordinance of the City Council of the City of Demon, Texas authorizing the City Manager to execute a Contract for Professional Legal Services with Springer, Lyle & Watt, LLP for professional legal services relating to litigation styled Ortegren, et al. v. City of Denton, Cause No. 2002-30205-211, currently pending in the 21 lth District Court of Denton County; authorizing the expenditure of funds therefore; and providing an effective date. Consider adoption of an ordinance approving an agreemem between the City of Denton and Canyon Energy Partners, Ltd. for the abandonment of Street Right-of- Way and Temporary Access Easement for all that portion of Blagg Road as it affects the entirety of Tract I as described in deed from Dieter Schwartz to Lakeview Ranch, L.P. as recorded under Clerk's File Number 99-R0077444, Real Property Records, Demon County, Texas, and Lot 5R and Lot 6R, Block 9, Lakeview Ranch as recorded in Cabinet T, Page 124 of the Plat Records of Denton County, Texas, and being located in the Moreau Forrest Survey, Abstract Number 417, Denton County, Texas, and providing an effective date. City of DeNon City Council Agenda March 2, 2004 Page 5 No Consider adoption of an ordinance establishing the Joseph A. Carroll Administration Building as a temporary branch voting location for early voting for the May 15, 2004 election; and declaring an effective date. 5. PUBLIC HEARINGS m. 1. Hold a public hearing and consider adoption of an ordinance amending Sub-Chapters 3 (Procedures), 16 (Subdivisions), 17 (Environmemally Sensitive Areas), and 22 (Gas Well Drilling and Production) of the Developmem Code associated with gas well drilling and production. (SI03-0024, Gas Well Amendments) Consider adoption of an ordinance amending the Developmem Review Fee Schedule to add fees for Watershed Protection Permits, gas well inspections, and tree mitigation associated with gas well development. (SI04-0001, Fee Schedule Amendments) Bo Hold a public hearing and consider adoption of an ordinance amending the Mobility Plan Component of The Denton Plan to revise the location and change the classification of Western Blvd. and changing the classification of Masch Branch Road between Hwy 380 and Jim Christal Road; and providing an effective date. The Planning & Zoning Commission recommends approval (5-0). (SI03- 0019, Western Blvd Mobility Plan AmendmenO Co Hold the second of two public hearings to consider the voluntary annexation and service plan for approximately 35.43 acres of land generally located north of Pockrus Page Road, west of Swisher Road, and south of Edwards Road in the southeastern section of the City of DeNon Extraterritorial Jurisdiction (ET J). (A03-0002, Village of Carmel Annexation) Do Hold the second of two public hearings to consider the voluntary annexation and service plan for approximately 19.51 acres of land generally located north of Pockrus Page Road, east of Mayhill Road, and south of Edwards Road in the southeastern section of the City of DeNon Extraterritorial Jurisdiction (ET J). (A03-0003, Flowers Baking Company Annexation) mo Hold a public hearing and consider adoption of an ordinance regarding the Alternative Development Plan for approximately 32 acres located in a Neighborhood Residemial Mixed Use (NRMU) zoning district. The property is located approximately 350 feet east of Nottingham Drive, between University Drive and Mingo Road. The Planning and Zoning Commission recommends approval (6-0). (ADP03-O009, Denton Bible Church) Fo Hold a public hearing and consider adoption of an ordinance rezoning approximately 2.99 acres from Neighborhood Residemial 3 (NR-3) zoning district to Neighborhood Residemial Mixed Use (NRMU) zoning district. The property is located approximately 250 feet south of Bent Oaks Drive, approximately 85 feet City of DeNon City Council Agenda March 2, 2004 Page 6 west of Teasley Lane. The Planning and Zoning Commission recommends approval (5-1). (Z03-0038, Ocean to Ocean) Hold a public hearing and consider adoption of an ordinance regarding the amendmem of the Detailed Plan for Planned Developmem 12 (PD-12). The approximately 15 acres of land is located approximately 1,500 feet east of State School Road, on the south side of Interstate 35. An automobile dealership is proposed. The Planning and Zoning Commission recommends approval (5-0). (Z03-0039, dim McNatt Honda) Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas designating a certain area within the city limits of Denton as Reinvestment Zone No. VII for Commercial/Industrial Tax Abatement; establishing the boundaries of such Zone; making findings required in accordance with Chapters 311 and 312 of the Texas Tax Code; ordaining other matters relating thereto; providing a severability clause; providing for repeal; and providing an effective date. 6. ITEMS FOR INDIVIDUAL CONSIDERATION Consider adoption of an ordinance authorizing the Mayor to execute a Tax Abatement Agreement with Fastenal Company; setting forth all the required terms of the Tax Abatement Agreement in accordance with the terms of Chapter 312 of the Texas Tax Code; setting forth the various conditions precedent to Fastenal Company receiving the Tax Abatemem; providing for a severability clause; and providing an effective date. (Economic Development Partnership Board recommends approval 7-0). Consider adoption of an ordinance amending the fiscal year 2003-04 Budget and Annual Program of Services of the City of DeNon, Texas for 3% cost of living adjustmem; declaring an emergency; providing for publication; and providing for an effective date. 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. City of Demon City Council Agenda March 2, 2004 Page 7 CERTIFICATE I certify that the above notice of meeting was posted on the bulletin board at the City Hall of the City of Demon, Texas, on the day of ,2004 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/ACMACM: March 2, 2004 Police Jon Fortune, Assistant City Manager SUBJECT Receive a report, hold a discussion, and give staff direction regarding proposed revisions to current ordinances regulating solicitors and itinerant merchants. BACKGROUND The City Council and staff have received citizen complains regarding solicitors and itinerant merchants for many years. In many of these cases, the current ordinances do not provide sufficient regulation to effectively address these complaints or may not address a particular issue at all. Representatives from the Planning, Police and Legal Departments have worked together to develop the following proposals for your consideration. The proposed ordinances are attached for your review and reference. Handbills and Flyers: The curreN ordinance does not specifically regulate those who distribute, or sponsor for distribution, handbills or flyers. MerchaNs routinely place such advertisemeNs on car windshields or the froN doors of residences. If not removed in a timely manner, handbills and flyers are an indication that the residents or owner of the vehicles are not home and, therefore, makes the residence or vehicle a target for crime. Additionally, the advertisemeNs may become dislodged from the door or vehicle and litter the grounds of shopping centers and apartment complexes. The proposed revision would regulate the distribution of handbills. In Section 16-75, it specifically provides property owners and managers the ability to prohibit handbill distribution by placing appropriate signage on the property. Additionally, handbill distributors would be required to obtain permits as solicitors and itinerant vendors currently do so that Departments would have records of the responsible parties and could more effectively address complains. Solicitor's Permit Requirement: Under the current ordinance, an applicant could obtain a permit if they have not been convicted of burglary, theft, fraud, robbery or rape within the last five years. In Section 16-93, the proposed revision expands the criminal convictions for which a permit application can be denied to match the current criteria for taxi cab driver permits. Solicitor's Permit Period: Under the curreN ordinance, a solicitors permit fee is $10.00 and a permit is valid for up to twelve months. Therefore, an itinerant merchant can obtain one permit and operate at a certain location for the entire year. The proposed ordinance would maintain the permit fee of $10.00. However, the permit period would be 30 days for door-to-door solicitors and 14 days for itinerant merchants and require a waiting period of 30 days before the permit holder could apply for another permit. The intent of this provision is to preclude solicitors and itinerant merchants from operating on a continuous basis within the City. Itinerant Merchants: Section 16-77 of the proposed revision contains additional requirements for itinerant merchants that were developed with assistance from the Planning Department. These requirements are an attempt to reduce the number of complaints staff receives and improve the appearance of major thoroughfares such as University Drive and Loop 288. Paragraph (f) limits itinerant vendors to property that is zoned industrial, which would move itinerant merchants off of the major thoroughfares. Another option that has been used by other cities is prohibiting itinerant merchants from specifically designated major arterial streets. ATM Machines: There are a number of automated teller machines (ATM's) in the city that are located outside of buildings. These ATM's are designed for either drive-through or walk-up service and patrons have complained about people soliciting for money or other services. Such solicitation makes the patron feel vulnerable to the request and fear retaliation if the request is denied. Staff proposes an ordinance that prohibits such solicitation within 50 feet of any ATM not enclosed within a building. Section 16-91 provides exemptions to the permitting requirement for those vendors who are required to obtain a special events permit through the City Parks and Recreation Department or the North Texas State Fair. Additionally, exemption will be provided through the Development Code for the Farmer's Market that was established by the City on Carroll Boulevard. As stated in Section 16-91, solicitations conducted by charitable, religious or educational organizations are governed by Section 25 of the Code of Ordinances. Such organizations that solicit on private property, with the permission of or in a cooperative effort with the property owner, will be considered an extension of that business and will not be required to comply with the regulations set forth in the proposed ordinance. PRIOR ACTION/REVIEW: None. FISCAL IMPACT: The revised permitting procedures will require merchants to purchase up to five additional permits per year. Any additional revenue realized is dependant on the amount of time merchants wish to operate within the City and, therefore, it is unknown at this time. However, at only $10.00 per permit, any additional revenue will be negligible. Respectfully submitted, Charles Wiley Chief of Police Prepared by: Joanie Housewright Captain Operations Bureau C:\laholloy\Backup 2004\CC Mar 2nd\WS Solicitors & Vondors\2. Solicitors & Vendors ORD.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING CHAPTER 16 RELATING TO LICENSES, PERMITS AND BUSINESS REGULATIONS BY REPLACING ARTICLE III TITLED SOLICITORS AND ITINERANT MERCHANTS IN ITS ENTIRETY WITH A NEW ARTICLE III; PROVIDING A SEVERABILITY CLAUSE; A SAVINGS CLAUSE; PROVIDING FOR A PENALTY NOT TO EXCEED $500 FOR VIOLATIONS OF THIS ORDINANCE; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: SECTION 1. That Chapter 16 "Licenses, Permits and Business Regulations" of the Code of Ordinances of DeNon, Texas is hereby amended by replacing Article iii of Chapter 16 titled "Solicitors and Itinerant Merchants" in its entirety. SECTION 2. That Article iii of Chapter 16 "Solicitors and itineram Merchams" of the Code of Ordinances of DeNon, Texas is hereby amended to read as follows: Chapter 16 ARTICLE iii. SOLICITORS AND ITINERANT MERCHANTS ARTICLE iii. SOLICITORS AND ITINERANT MERCHANTS* DIVISION 1. GENERALLY Sec. 16-71. Purpose. This emire article is and shall be deemed an exercise of the police power of the state and of the city for the public safety, comfort, convenience and protection of the city and its citizens, and all of the provisions of this article shall be construed for the accomplishmem of that purpose. Sec. 16-72. Definitions. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Conviction means a conviction in a federal court or a court of any state or foreign nation or political subdivision of a state or foreign nation that has not been reversed, vacated, or pardoned. Goods or merchandise means any personal property of any nature whatsoever, except printed material. C:\laholloy\Backup 2()()4\(2C Mar 2nd\WS Solicitors & Vondors\2. Solicitors & Vendors ORD.doc Handbill means any printed or written matter, any sample or device, circular, flyer, leaflet, pamphlet, paper, booklet, or any other printed matter of literature which is not delivered by United States mail, including, but not limited to, those which: (a) Advertise for sale any merchandise, product, commodity, or thing; (b) Direct attention to any business or mercantile or commercial establishment, or other activity, for the purpose of either directly or indirectly promoting the interest thereof by sales; or (c) Direct attention to or advertise any meeting, theatrical performance, exhibition, or event of any kind for which an admission fee is charged for the sole purpose of private gain or profit. Handbill distributor means and includes any person engaging or engaged in the business for hire or gain of distributing handbills, other than newspapers distributed to subscribers thereof, and any person receiving compensation directly or indirectly for the distribution of such handbills. Handbill sponsor means and includes any person, firm or corporation who utilizes handbills as a medium of advertising or spreading a message. Home solicitation transaction means a transaction or the purchase of goods or services, payable in installments or cash, in which the home solicitor engages in a personal solicitation of a sale to a person at a residence. A home solicitation transaction shall not include a sale made pursuant to a preexisting retail charge agreement or a sale made pursuant to prior negotiations between the parties at a business establishment at a fixed location where goods or services are offered or exhibited for sale or a sale of realty, in which transaction the purchaser is represented by a licensed attorney or in which the transaction is being negotiated by a licensed real estate broker. Home solicitor means a person who goes from house to house or from place to place soliciting, selling or taking orders for or offering to sell or take orders for any goods, merchandise or services, this includes distribution of handbills left at any residence. Itinerant merchant means a person who sets up and operates a temporary business within the premises of another business or any other building or location in the city soliciting, selling or taking orders for or offering to sell or take orders for any goods or services. Multiunit complex means two or more dwellings in one or more buildings that are: (a) under common ownership; (b) managed by the same owner, agent, or management company; and (c) located on the same lot or tract or adjacent lots or tracts of land. Page 2 of 11 C:\laholloy\Backup 2004\CC Mar 2nd\WS Solicitors & Vondors\2. Solicitors & Vendors ORD.doc Police chief means the chief of police or his designee of the city. Residence means any separate living unit occupied for residential purposes by one (1) or more persons, contained within any type of building or structure. Soliciting means selling or attempting to sell goods or services or to take or attempt to take orders for services or goods to be performed or furnished in the future. Sec. 16-73. Hours for home solicitation. (a) A person shall not go upon any residential premises and ring the doorbell or rap or knock upon the door or create any sound in a manner calculated to attract the attention of the occupant of the residence for the purpose of engaging in or attempting to engage in a home solicitation transaction: or Before 9:00 a.m. or after 6:00 p.m. of any day, Monday through Saturday; (2) At any time on a Sunday, New Year's Day, July 4th, Labor Day, Thanksgiving Day or Christmas Day. (b) Subsection (a) of this section shall not apply to a visit to the premises as a result of a request or an appointment made by the occupant. Sec. 16-74. Prohibited conduct. It shall be unlawful for a person engaged in soliciting under this article to: (a) Misrepresent the purpose of the solicitation; (b) Continue efforts to solicit from an individual once that individual informs the solicitor that he does not wish to make a purchase from that solicitor; (c) Represent the issuance of any permit under this article as an endorsement or recommendation of the solicitation. (d) Fail to carry a valid driver's license or identification card issued by the State of Texas or the State in which the defendant resides. Sec. 16-75. Exhibiting card prohibiting solicitors and/or handbill distributors. (a) A person desiring that no merchant or other person engage in a home solicitation at his residence or at a multi-unit complex which he owns or manages shall exhibit in a conspicuous place upon or near the main entrance/entrances to the residence or multi unit complex a weatherproof card, or sign not less than two (2) inches by four (4) inches in size, containing the words, "No Solicitors" or No Handbills. "The letters shall be not less than two-thirds of an inch in height. Multi-unit complexes may also give notice of no Page 3 of 11 C:\laholloy\Backup 2004\CC Mar 2nd\WS Solicitors & Vondors\2. Solicitors & Vendors ORD.doc soliciting by painting the words, "No Solicitors" or "No Handbills" on the curbs at major entrances to the multi-unit complex. (b) Every solicitor upon going onto any premises upon which a residence is located shall first examine the residence or multi unit complex to determine if any notice prohibiting soliciting or handbill distribution is exhibited upon or near the main entrance to the residence or multi unit complex. If notice-prohibiting soliciting is exhibited, the solicitor shall immediately depart from the premises without disturbing the occupant, unless the visit is the result of a request made by the occupant. (c) No person shall go upon any residential or multi unit complex premises and ring the doorbell or rap or knock upon the door or create any sound in a manner calculated to attract the attention of the occupant of the residence for the purpose of securing an audience with the occupant and engaging in or attempting to engage in a home solicitation transaction if a card as described in subsection (a) of this section is exhibited in a conspicuous place upon or near the main entrance(s) to the residence or multi-unit complex, unless the visit is the result of a request made by the occupant. (d) No person shall distribute handbills upon any residential or multi unit complex premises if notice as described in subsection (a) of this section is exhibited in a conspicuous place upon or near the main entrance(s) to the residence or multi-unit complex. It is prima facie evidence that the handbill sponsor is fully responsible for the placement or distribution of the handbills. Sec. 16-76. Soliciting on city property. (a) It shall be unlawful for any person to solicit on property owned by the city, unless such person has entered into a license agreement with the city. (b) The city manager is authorized to execute and enter into license agreements with solicitors authorizing the use of a tract or portion thereof of city property where specific findings are made that the proposed use: (1) Will not violate the provisions of the Texas Transportation Code, Section 552.007 or Texas Penal Code § 42.03; (2) Will not cause or contribute significantly to congestion on the public sidewalks so as to render access to abutting private property unreasonably inconvenient. (c) The licensee shall pay a rental fee based upon square footage. Sec. 16-77. Additional Requirements for Itinerant Merchants. (a) Itinerant merchants shall not block fire lanes. Page 4 of 11 C:\laholloy\Backup 2004\UC Mar 2nd\WS Solicitors & Vondors\2. Solicitors & Vendors ORD.doc (b) Itinerant merchants shall provide a portable toilet or obtain written permission from the property owner to use the rest room facilities. (c) Itinerant merchants shall not obstruct traffic site triangles. (d) Itinerant merchants shall not obstruct required parking spaces. (e) Itinerant merchants shall be set back from the edge of the right of way by at least fifteen feet. (f) Itinerant merchants shall meet all requirements of the Denton Development Code including being located on industrial zoned property. Sec. 16-78. Exemptions. (a) The provisions of this article shall not apply to sales made to dealers by commercial travelers or sales agents in the usual course of business calling upon or dealing with manufacturers, wholesalers, distributors or retailers at their places of business. (b) The provisions of this article shall not apply to anyone or any group who is required to get a special events permit through the City Parks and Recreation Department or to the North Texas State Fair. DIVISION 2. PERMIT Sec. 16-91. Required. It shall be unlawful for any itinerant merchant, handbill distributor or home solicitor to sell, display or offer for sale any goods or services or distribute handbills within the city without first obtaining a permit from the city. If the solicitation is for charitable, religious or educational purposes, these solicitations shall be governed by Sections 25-5, 25-5.1, and 25-5.2. Sec. 16-92. Affirmative defenses to permit requirement. The following shall be an affirmative defense to prosecution under section 16-91 of this article: (a) That the solicitor is on the property by invitation of the person residing on such premises. (b) That the solicitor is soliciting employment at the Day Labor Site. Sec. 16-93. Application; duration; renewal. Page 5 of 11 C:\laholloy\Backup 2004\CC Mar 2nd\WS Solicitors & Vondors\2. Solicitors & Vendors ORD.doc (a) Any person who wishes to engage in home solicitation, handbill distribution or any itinerant merchant who wishes to solicit within the city shall file a written application with the police chief, which application shall show the following: (1) Proof of the identity and home address of the applicant and the name and address of the employer or firm that such applicant represents; (2) A brief description of the nature, character and quality of the goods to be sold, or a copy of the handbills to be distributed; (3) If employed by another, the name and business address of the person, firm, association, organization or corporation; (4) For any and all motor vehicles which are to be used, a description of all the vehicles, together with the motor vehicle registration numbers of all the vehicles, and the license numbers of all the vehicles; (5) A description of the proposed location of the solicitation or handbill distribution; (6) The period of time the applicant so wishes to solicit, sell, take orders or distribute handbills in the city; (7) The names of other communities in which the applicant has worked as a solicitor or handbill distributor in the past twelve (12) months, and, if he was employed by a different company in those communities, the name of those companies shall also be stated; (b) The applicant or any agent of the applicant must meet the following criteria: (1) be currently authorized to work full-time in the United States; (2) hold a valid driver's license or identification card issued by the State of Texas or the state in which the defendant resides; (3) be able to communicate in the English language; (4) not be afflicted with a physical or mental disease or disability that is likely to endanger the public health or safety; (5) not have been convicted or placed on probation or deferred adjudication for a crime: a. involving: 1. criminal homicide as described in Chapter 19 of the Texas Penal Code; Page 6 of 11 C:\laholloy\Backup 2004\CC Mar 2nd\WS Solicitors & Vondors\2. Solicitors & Vendors ORD.doc bo 2. kidnapping as described in Chapter 20 of the Texas Penal Code; 3. a sexual offense as described in Chapter 21 of the Texas Penal Code; 4. an assaultive offense as described in Chapter 22 of the Texas Penal Code, other than a Class C misdemeanor; 5. robbery as described in Chapter 29 of the Texas Penal Code; 6. burglary as described in Chapter 30 of the Texas Penal Code; 7. theft as described in Chapter 31 of the Texas Penal Code, but only if the violation is punishable as a felony; 8. fraud as described in Chapter 32 of the Texas Penal Code; 9. tampering with a governmental record as described in Chapter 37 of the Texas Penal Code; 10. public indecency (prostitution or obscenity) as described in Chapter 43 of the Texas Penal Code; 11. the transfer, carrying, or possession of a weapon in violation of Chapter 46 of the Texas Penal Code, but only if the violation is punishable as a felony; 12. a violation of Chapter 483, Dangerous Drugs, of the Texas Health and Safety Code that is punishable as a felony; 13. a violation of the Controlled Substances Act, Chapter 481 of the Texas Health and Safety Code that is punishable as a felony; or 14. criminal attempt to commit any of the offenses listed in Subdivision (E)(1)(i) through (xiii) of this subsection; for which: 1. if the applicant was convicted for a misdemeanor offense, less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date; Page 7 of 11 C:\laholloy\Backup 2()()4\(2C Mar 2nd\WS Solicitors & Vondors\2. Solicitors & Vendors ORD.doc 2. if the applicant was placed on probation or deferred adjudication for a misdemeanor offense, less than two years have elapsed since the date of successful completion of probation or deferred adjudication; 3. if the applicant was convicted for a felony offense, less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction or the date of release from parole, whichever is the later date; 4. if the applicant was placed on probation or deferred adjudication for a felony offense, less than five years have elapsed since the date of successful completion of probation or deferred adjudication; 5. less than five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if, within any 24-month period, the applicant has two or more convictions of any misdemeanor offense or combination of misdemeanor offenses; or 6. less than five years have elapsed since the date of the successful completion of probation or deferred adjudication for the last offense, whichever is the later date, if, within any 24-month period, the applicant has been placed on probation or deferred adjudication two or more times for any misdemeanor offense or combination of misdemeanor offenses; c. not be addicted to the use of alcohol or narcotics; d. be subject to no outstanding warrants of arrest; e. An applicant who has been sentenced for an offense listed in Subsection (b)(5)(a.) 1-8 which is a felony level offense or criminal attempt of (b)(5)(a) 1-8 for which the required time period provided by this ordinance has elapsed, may qualify only if the chief of police or his designee determines that the applicant is presently fit to engage in solicitation or handbill distribution. In determining present fitness under this section, the chief or his designee shall consider the following: (1) the extent and nature of the applicant's past criminal activity; (2) the age of the applicant at the time of the commission of the crime; (3) the amount of time that has elapsed since the applicant's last criminal activity; Page 8 of 11 C:\laholloy\Backup 2004\CC Mar 2nd\WS Solicitors & Vondors\2. Solicitors & Vendors ORD.doc (4) the conduct and work activity of the applicant prior to and following the criminal activity; (5) evidence of the applicant's rehabilitation or rehabilitative effort while incarcerated or following release; and (6) other evidence of the applicant's present fitness, including letters of recommendation from prosecution, law enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility for the applicant; the sheriff and chief of police or his designee in the community where the applicant resides; and any other persons in contact with the applicant. f. It is the responsibility of the applicant, to the extent possible, to secure and provide to the chief or his designee the evidence required to determine present fitness under Subsection (e) of this section. g. Proof of a sales tax permit issued by the state or proof that the goods sold are not subject to such sales tax; and h. An itinerant merchant who makes application to offer his goods for sale upon private property shall provide written proof that he has permission to use such property from the owner or the owner's agent. i. The applicant shall present written proof of his authority to represent the company or individual he states he represents. j. The application shall be accompanied by a fee in an amount established by the city council and on file in the office of the city secretary, and no permit shall be issued until such fee has been paid by such applicant. k. A permit requested under this article shall be issued for the length of time requested, not to exceed thirty (30) days for solicitors and not to exceed fourteen (14) days for itinerant merchants. 1. Upon expiration of a permit, the solicitor or itinerant merchant may not apply for a new permit for a period of thirty (30) days for the same business and/or location. Application for a subsequent permit must be made in the manner prescribed by this section. Sec. 16-94. Issuance. It shall be the duty of the chief of police or his designee to issue such applicant a permit to solicit or sell or take orders for such goods, services or merchandise set forth in the applicant's application within five (5) working days of the receipt of a completed application and prescribed fee, unless it has been determined that the application contains false information or the person Page 9 of 11 C:\laholloy\Backup 2004\CC Mar 2nd\WS Solicitors & Vondors\2. Solicitors & Vendors ORD.doc does not meet the criteria set forth in this Article. If the application comains false information or the person does not meet the criteria set forth in this Article, the chief shall not issue the permit. Sec. 16-95. Permit card. (a) Upon issuance of a permit required under this division, the permittee shall be issued a card which shall contain the name of the permittee, the permit number and date of expiration. (b) It shall be unlawful for any home solicitor or itineram mercham to solicit in the city without carrying the required permit card on his person and a driver's license or idemification card. (c) It shall be unlawful for an itineram mercham to solicit at locations other than those listed in his application for a permit. (d) It shall be unlawful for any person soliciting to fail or refuse to display such permit card upon the request of any person demanding the card. (e) It shall be unlawful for any person to duplicate or Xerox or otherwise display a facsimile of a permit card issued pursuam to this division. Secs. 16-97 - 16-125. Reserved SECTION 3. If any section, subsection, paragraph, sentence, clause, phrase, or word in this ordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of DeNon, Texas hereby declares it would have enacted such remaining portions despite any invalidity. SECTION 4. That any person violating any provision of this ordinance shall, upon conviction, be fined a sum not to exceed Five Hundred Dollars ($500.00). Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 5. Save and except as amended hereby, all the provisions, sections, subsections, paragraphs, semences, clauses, and phrases of the Code of Ordinances shall remain in full force and effect. SECTION 6. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the DeNon Record-Chronicle, the official newspaper of the City of DeNon, Texas, within ten (10) days of the date of its passage. Page 10 of 11 C:qaholloy\Backup 2004\CC Mar 2nd\WS Solicitors & Vondors\2. Solicitors & Vendors ORD.doc PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 11 of 11 C:\lahollcy\Backup 2004\CC Mar 2~d\WS Solicitors & Vendors\3. Solicitors ATM ORD.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING CHAPTER 21, ARTICLE I OF THE CODE OF ORDINANCES OF THE CITY OF DENTON BY ADDING A SECTION PROHIBITING SOLICITING NEAR AUTOMATED TELLER MACHINES WHICH ARE LOCATED IN PUBLIC PLACES; PROVIDING A SAVINGS CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A PENALTY NOT TO EXCEED FIVE HUNDRED DOLLARS; AND DECLARING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Chapter 21 "Offenses" of the Code of Ordinances of Demon, Texas is hereby amended by adding Section 21-6 prohibiting near ATM's located in public places which shall read as follows: Sec. 21-6. Prohibited acts. It shall be unlawful for any person to solicit another in a public place at the times, locations and in the manner specified below: 1. Within 50 feet of any automated teller machine not enclosed within a building. SECTION 2. That all provisions of the ordinances of the City of Demon in conflict with the provisions of this ordinance are hereby repealed, and all other provisions of the ordinances of the City of Demon, not in conflict with the provisions of this ordinance, shall remain in full force and effect. SECTION 3. That if any provision of this ordinance or application thereof to any person or circumstance is held invalid, such invalidity shall not affect the other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 4. Any person adjudged guilty of violating this ordinance shall be guilty of a misdemeanor and punished by a fine not to exceed Five Hundred Dollars ($500.00). SECTION 5. That this ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Demon Record-Chronicle, the official newspaper of the City of Demon, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the __day of ,2004. EULINE BROCK, MAYOR C:\laholloy\Backup 2()()4\(2C Mar 2nd\WS SoliciLors & Vendors\3. Solicitors ATM ORD.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/DCM/ACM: March 2, 2004 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT: Hold a discussion about a proposed Ordinance amending Chapter 13 Food and Food Service Establishmems of the City of DeNon Code of Ordinances by making conforming changes in accordance with the Texas Food Establishment Rules promulgated by the Texas Department of Health and other changes recommended by the staff. BACKGROUND Chapter 13 of the DeNon Code of Ordinances sets forth standards and fees for food service establishments. The State of Texas promulgates rules for food service establishments and from time to time amends those rules. This amendment to Chapter 13 would adopt by reference the Texas Food Establishmem Rules (TFER); the currem DeNon Code references the 1977 TFER. TFER proposed for adoption by reference is the 1998 version. This ordinance rescinds several sections that are appropriately covered in the TFER. In addition to referencing the TFER, Chapter 13 of the Denton Code has historically set some standards that are peculiar to Denton and in some instances these amendments are more restrictive than TFER. This is a summary of the amended sections: 13-2 13-2. 13-2 13-2 13-2 13-5 13-6 13-20 (a) This section is amended so that the Building Official is the administrator of Chapter 13. (e) This amendmem adds the language "and requires immediate corrective action". This means that a critical violation of the TFER or City Code will require the establishment to correct the violation immediately. (g) The section stating "Organizations that serve only their own membership and immediate guests and other structured groups of persons who gather occasionally for fellowship and society that provide food from amongst their members;" is deleted because this is adequately covered in the TFER. The sections on potable water and provisional permits are deleted because they are in the TFER. (p) Removes the words "or partially" cooked. Seasonal food service is removed because it is in the TFER. This amendmem deletes sections which address hermitically sealed comainers because they are in TFER. This section deals with registration of food service establishmems based outside the city. This amendment deletes subsections relating to registration and fee. References to temporary food vendors are removed here and placed in Section 13-23 of this Chapter. In this section reference to the content of the form was deleted. The content of the form does not need to be addressed in the ordinance. 13-22 Permit issuance. This amendment deletes a section that defined part time and full time employees for the purpose of calculating fees. This section is deleted because it is no longer used as the standard for calculating fees. This section also amends the time frame from 30 to ten days for seeking a permit after a change of ownership. This section also adds language describing the permit expiration date. 13-23 Temporary Food EstablishmeNs: This amendmeN adds a new section (1) (e) as follows: "Permits for temporary establishments that are not operating in conjunction with a special even or community-based even shall be limited to three (3) per year per establishmeN." Staff agrees with the many communities that limit the number of events for temporary establishmeNs. This amendmeN also adds clarifying language to section (2) that describes poteNially hazardous foods as "open and prepared on site". This amendmeN also removes sections (3) (b) (ii) through (4) (d) as redundaN to TFER. This amendmeN adds language to require compliance with City of DeNon solid waste regulations and fire codes. This section also requires temporary food establishments to comply with the requirements of the TFER. 13-24 This section eliminates provisional permits and proposes standards for new or remodeled restaurants and for those restaurants seeking a new certificate of occupancy. These standards address the absorbency and commercial grade of floors and walls, the location of auxiliary equipmeN and ice machines, unobstructed aisles and working spaces, mandatory sneeze guards and height of such guards, wood shelving in storage rooms, access to toilets, sink locations, commercial grade equipment, utensils, refrigerators and walk-in coolers, and the size of water heaters by type of establishment. Denton staff and other cities find that setting a clear standard concerning the use of commercial grade materials and equipmeN provides a safer and healthier food establishmeN. If the Council chooses not to include this amendment, then the existing standards from the TFER and the building code and the fire code would apply. 13-25 This eliminates the section that required payment of fees assessed during previous year and establishes a late fee. The city's billing system tracks paymeNs and helps keeps permit holders up to date in payments. 13-29 This section changes the name of the board hearing appeals from the Denton Restaurant Association (that no longer exists) to the Construction Advisory and Appeals Board. 13-33 This section addressing correction of violations is deleted in its eNirety since it is covered by the TFER. 13-34 (d) This is amended to require re-inspection within 14 calendar days of the initial inspection. The original language required re-inspection on the 14th day. This gives more flexibility to permit-holders and to the inspectors. 13-35 The reference in this section is changed to the updated TFER. 13-39 This section, which set standards for litter at drive-ins, is removed in its eNirety because litter coNrol is more appropriately handled by Code EnforcemeN and is not covered by the TFER. 13-40 The amendments change the reference in this section from "permit" to "card" in order to differentiate the card from the actual establishment's health permit. 13-41 This adds a three-year card option making it more convenient for food service workers. This will not affect revenue to the City of Denton. 13-42 This amendmeN would remove the section requiring attendance at a food handling school. This is removed because there is no longer a class or school to attend. Applicants watch a one-hour video and then take the test. This also removes the restriction or exclusion of sick employees because this exclusion is in the TFER. 13-43 This amendment allows food handler cards to be "available" as opposed to displayed or posted. 13-44 This amendment changes the reference in this section from "permit" to "card" in order to differentiate the card from the actual establishment's health permit. Adds exemption noted in section 13-41. 13-53 This amendment eliminates the standards (a) and (c) through (j) for mobile food establishment units since these standards are covered in the TFER. 13-61 This language is changed from the consumer health division to the "Building Official". 13-62. Conditions under which a health officer may close an establishment without warning are set forth in this section. Sub-sections (4) and (5) are added to allow that non-functioning ware-washing machines or non-functioning sinks for manual washing are conditions for closure. This is added because some establishments have only ware-washing machines and no set up for manual ware washing. Subsection (4) adds the wording "or hot water" to the existing section that allows closure for an establishment found without running water for a period of more than one hour. A subsection concerning sewage backup is removed from the closure conditions since that is covered in the TFER. Regulations on snow cone vendors, outdoor smokers, correction of violations, and revocation of health cards are proposed to be removed in their entirety since they are appropriately regulated in the TFER. None of the fee amounts are recommended for amendment. Two meetings were held for food service establishment owners and managers. No one attended the first meeting. The second meeting is scheduled for February 25 which is after the date of this memorandum. OPTIONS 1. Direct staff to make further amendment or to remove amendments. 2. Direct staff to proceed with these amendments. 3. Direct staff to not proceed with these amendments. Prepared by: Judie Talbot & Laurie Pearson Health Inspectors Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development S:\Our Documents\Ordinances\03~Food Service Ord 2.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING CHAPTER 13 FOOD AND FOOD SERVICE ESTABLISHMENTS OF THE CITY OF DENTON CODE OF ORDINANCES BY MAKING CONFORMING CHANGES IN ACCORDANCE WITH TEXAS FOOD ESTABLISHMENT RULES PROMULGATED BY THE TEXAS DEPARTMENT OF HEALTH; PROVIDING A SEVERABILITY CLAUSE; PROVIDI2qG A SAVINGS CLAUSE; PROVIDING FOR A PENALTY NOT TO EXCEED $2,000 FOR VIOLATIONS OF THIS ORDINANCE; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: SECTION 1: That Chapter 13 FOOD AND FOOD SERVICE ESTABLISHMENTS* is hereby amended as follows: *Editor's note--Ord. No. 93-058, § I, adopted April 6, 1993, amended former Ch. 13, relative to food and food establishments, in its entirety to read as herein set out. The provisions of former Ch. 13 derived fi:om Code 1966, §§ 11-20--11-25, 11-36--11-42 and Ord. No. 90-147, § I, adopted Oct. 2, 1990. Cross reference(s)--Health and human services generally, Ch. 14. State law reference(s)--Seizure and destruction of unwholesome food, Vemon's Ann. C.C.P. art. 9.06; unwholesome food, drink or medicine, V.T.C.A., Penal Code § 32.42; milk grading and sanitation, V.T.C.A., Health and Safety Code § 435.001 et seq.; Texas Food, Drug and Cosmetic Act, V.T.C.A., Health and Safety Code § 431.001 et seq.; regulation of food service establishments, V.T.C.A., Health and Safety Code § 437.001 et seq. ARTICLE I. IN GENERAL Sec. 13.1 The Texas Food Establishment Rules as amended by the Texas Board of Health found in 25 Texas Administrative Code, Chapter 229, sections 161 through 171 and 173 through 175 regarding the regulation of food establishments in this jurisdiction is hereby adopted as the minimum standards for food service operations within the corporate limits of the City of Denton, Texas. Wherever in said rules the words "municipality of Denton" appear, they shall be understood to refer to the City of Denton and the words "regulatory authority" shall refer to the City of Denton. A copy of these rules shall be kept on file in the office of the city secretary. Any revision, add/tion, or deletion to the Texas Food Establishment Rules by the Texas Department of Health or the United States Food and Drug Administration shall be deemed to be an amendment to this article and adopted as of the time it goes into effect or is published. (Ord. No. 93-058, § I, 4-6-93) Sec. 13-2. Definitions. (a) Administrator shall mean the Building Official, or their designated employee, of the City of Denton. (e) Critical violation shall mean violation of 4-point or 5-point weighted items on the inspection report form utilized by the city's health officer and shall require immediate corrective action. (g) Food service establishment shall mean any restaurant, cafe, hotel dining room, grocery store, meat market, soft drink stand, hamburger stand, ice cream wagon, day care center, nursing home, private club or any place where food or drink for human consumption is offered for sale, given in exchange or given away. The term does not include the following operations and establishments, provided that the operations do not expose the public to a substantial and imminent health hazard as determined by the city health officer: (1) An establishment which handles only fresh unprocessed fruits, nuts, and vegetables and which operates from a unit, which is mobile in nature. (2) The sale, distribution, or service of food at an event, party or other special gathering that is not open to persons other than the members or invited guests of the sponsor, provided that there is no public advertisement of the event, public solicitation of fimds at or for the event, or participation by the general public in the event. (i) Health officer shall mean a sanitarian or health inspector of the City of Denton. (j) Health or regulatory authority shall mean the City of Denton. Delete sections (o) and (p) and reletter the remaining sections as follows: (n) Seasonal food service establishment shall mean any food service establishment which operates from a fixed location for a period not to exceed four (4) consecutive months provided that such operation shall occur only once during any twelve (12) consecutive month period. (o) Smoker shall mean any unit, whether mobile or fixed in nature, which uses wood or wood products to provide smoke for the purpose of slow cooking meats intended for human consumption, whether such unit is inside an enclosed building or in an outdoor area. (p) Temporary food service establishment shall mean any food service establishment which operates from a fixed location for a period not to exceed fourteen (14) consecutive days. (q) Wholesome shall mean in sound condition, clean, flee from adulteration, and otherwise suitable for use as human food. Food which is packaged shall be deemed wholesome if it meets the foregoing requirements and it is used or sold prior to the expiration date marked on the package. (Ord. No. 93-058, § I, 4-6-93; Ord. No. 97-114, § I, 4-1-97) -2- Cross reference(s)--Definitions and roles of construction generally, § 1-2. Sec. t3-5. Sale or other disposition of unwholesome food prohibited. It shall be unlawful for any person, association of persons, firm, food service establishment, temporary food service estabhshment or corporation to offer for sale, sell or give away any food or drink for human consumption which has been pronounced by the city health officer to be unfit for such use. (Ord. No. 93-058, § i, 4-6-93) Sec. 13-6. Registration of food service establishments based outside city. A food service establishment or commissary operating from a facility located outside the city that sells, distributes or transports food inside the city may not conduct operations inside the city unless the food service establishment: (1) Furnishes the health officer with a certificate from a health authority having jurisdiction over the establishment indicating that the establishment complies with applicable health laws; or (2) Furnishes the health officer other information that the administrator determines is necessary to enforce the provisions of this chapter or otherwise protect the public health or safety. (Ord. No. 93-058, § I, 4-6-93) ARTICLE II. FOOD SERVICE ESTABLISHMENTS Sec. 13-20. Permit required. It shall be unlawful for any person, association of persons, firm or corporation to operate a food service establishment in the city without having obtained a permit under the terms of this section. (Ord. No. 93-058, § I, 4~6-93; Ord. No. 97-114, § II, 4-1-97) Sec. 13-22. Permit Issuance. (a) Upon receipt of an application and payment of the applicable fee, the health officer shall make an inspection of the premises where the business is to be conducted. If the premises comply with the terms of this article and with all current requirements of the zoning ordinance, other ordinances and state law, a permit shall be issued to the applicant upon payment of the permit fee. The applicable fees shall be set by city council by ordinance and the fee schedule shall be available for public inspection at the offices of the city secretary or the health officer. -3- The applicant shall submit the applicable nonrefundable fee as set forth by city council before a permit will be issued. Notwithstanding any other provision of this chapter, the payment of any fees set under this section is not applicable to the City of Denton or any political subdivision or agency of the State of Texas and the United States of America. (b) In the event a food permit application is rejected, the administrator shall notify the applicant of the rejection in writing. The notice shall specify the reasons why the permit is denied. The decision of the administrator is final unless the applicant shall file an appeal as provided in section 13-28. The decision of the administrator shall continue in effect until the final decision of the committee. (c) Permits shall not be transferable. A person who acquires an existing food service establishment shall not operate the establishment without obtaining a new permit within ten (10) days from the date of the change of ownership. (d) Each food service estabhshment shall display a valid permit in public view in the establishment. (e) A permit will be good for a period of twelve (12) months with the expiration date being the last day of the month the permit was issued; temporary, and seasonal permits shall expire in accordance with their terms. (f) Acceptance of a permit issued by the administrator constitutes agreement by the establishment to: (1) Comply with all conditions of the permit and all applicable provisions of this chapter; and (2) Allow the lawful inspection of its facility and operations. (Ord. No. 93-058, § I, 4-6-93; Ord. No. 95-182, § I, 9-12-95; Ord. No. 97-241, § I, 9-2-97) Sec. 13-23. Temporary food service estabhshments (e) Permits for temporary food service establishments that are not operating in conjunction with a special event or community-based event shall be limited to three (3) permits per year per establishment. (2) The term temporary food service establishment shall not include concession stands, which operate at a fixed location in conjunction with scheduled, community-based sporting or recreational events provided that the preparation and serving of potentially hazardous foods shall be restricted to only those pre-cooked, pre-packaged potentially hazardous food products that have been properly prepared in accordance with all Texas Department of Health and local requirements and are properly stored, handled, and served in the unopened, original package from said concession stands. In such instances where open potentiallY hazardous foods are -4- prepared on site from a concession stand, these shall be evaluated on a case-by-case basis and a determination shall be made as to requirements. (3) A temporary food service establishment shall not:. (a) officer; or Prepare, serve, sell or distribute any food not approved in advance by the health (b) Prepare potentially hazardous food; except, that the establishment may prepare potentially hazardous food that is approved in advance by the health officer and does not require substantial preparation prior to consumption (including, but not limited to, a hamburger or frankfurter) or may prepare potentially hazardous food that is obtained by the establishment in individual servings; (4) A temporary food service establishment shall comply with liquid waste disposal ordinances, solid waste disposal ordinances and fire codes. (5) A temporary food service establishment shall comply with Section 229.170 a-k of Texas Food Rules and any other requirement that the administrator determines is necessary to protect the public health or safety and imposes as a condition to the lawful operation of the establishment. (Ord. No. 93-058, § I, 4-6-93) Sec. 13-24. Plans and permits. (a) The owner shall submit plans and specifications for construction of work areas intended for use in the operation of a food establishment, and the location, size, and type of fixed equipment and interior finishes of such areas to the City of Denton for approval before work is begun, when a food service establishment is constructed, or: (1) The nature of the operation changes; (2) The establishment is extensively remodeled; or (3) When an existing structure is converted for use as a food service establishment. (b) In a food service establishment, the food preparation area shall be of adequate size and shall constitute a minimum of twenty-five (25) percent of the total square footage of the occupied permitted area. (c) In a food service establishment, dry storage areas shall be of adequate size and shall constitute a minimum of fifteen (15) percent of the total square footage of the food preparation area. -5- (d) The minimum requirements specified in subsection (b) of this section shall be applicable to all establishments for which building permits are issued after April 18, 1993. (e) Construction Standards for New or Remodeled Food Establishments. All plans submitted shall include information on the following specifications: (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) Floors: In food preparation areas, storage areas, utensil washing areas, restrooms, and dressing rooms, floors shall be constructed of smooth, durable, easily cleanable, non- absorbent materials of commercial grade. Flooring must be light colored, without texture or patterns that create difficult places to clean. In addition to the kitchen areas of day care centers, floors in food service areas of classrooms shall meet these requirements. Walls/Ceilings: in food preparation, storage, utensil washing areas, and restrooms, walls and ceilings must be smooth (not textured), easily cleanable, non-absorbent, light in color, and durable. Wall areas behind sinks or places that receive heavy use must be finished with FRP, ceramic tile, epoxy type paint or similar materials to withstand moisture. Bathroom walls shall be finished (as those listed above) behind plumbing fixtures to a height of at least four (4) feet up from the floor. Heavy food preparation areas behind stoves, grills, and fryers shall be of stainless steel from floor to ceiling. Auxiliary Equipment: water heaters, washing machines, dryers, remote connected refrigerators, compressors, and air conditioners must be located outside of food preparation areas. Ice Machines: are to be of adequate size and located in areas that meet the wall, floor and ceiling design standards for food preparation areas. Do not locate an ice machine near sources of potential contamination, such as exposed sewer lines, open stairwells, etc. Aisles and Working Spaces: shall be unobstructed and of sufficient width to permit employees to readily perform their .duties without contaminating food or food contact surfaces by clothing or personal contact. Sneeze Guards: required for all buffet and salad bars. Average height is four feet six inches (4'6") to five feet (5') from the floor. Storage Rooms: wood shelving is allowed for dry storage use only if finished with varnish or high gloss type paint to make sure it is smooth, non-absorbent, and easy to clean. Toilet Facilities: public access cannot be through the kitchen. Sinks: shall be the number required by law. A handsink shall be located within every 25 linear feet of unobstructed space in food preparation and utensil washing areas so it is convenient for employees to wash hands as often as necessary. If sink is too close to other equipment or sinks, a splashguard may be required. Sinks are to be of adequate size to allow for the thorough washing of hands and forearms. Blower dryers shall not be allowed as a means of drying hands in food preparation areas. Note: at the discretion of the City of Denton, additional sinks such as pot sinks, produce washing sinks, etc. may be required. Equipment and Utensils: all equipment is to be NSF approved or commercial grade. Refrigerators/Freezers: must be of commercial type, and each unit must have a numerically scaled indicating thermometer. Walk-in coolers must be commercially built and have interiors of impervious, non-absorbent materials. Wood and marlite surfaces in -6- (12) (13) walk-ins are not allowed. Shelves must be resistant to rust. Mechanical refrigeration is required on salad bars, etc. for holding cold foods cold; holding foods in ice will not be acceptable. Water Heater: must be of adequate size to provide enough hot water for all hand washing, ware washing, and cleaning. Minimum sizes: 50 gallons in heavy food preparation establishments; 30 gallons in light food preparation establishments; and 20 gallons in no food preparation establishments. Kitchens in day care centers shall comply with all rules of this code except that the size of the kitchen may be determined on a case-by-case basis as approved by the City of Denton. (Ord. No. 93-058, § I, 4-6-93; Ord. No. 97-I14, § III, 4-1-97) Sec. 13-25. Expiration and renewal of permits. (a) A permit lapses and is void unless the applicable permit fee is received by the City of Denton before the expiration date of the existing permit. (b) A permit lapses and is void if the food service establishment operating under the permit constructs a new facility or changes ownership. (Ord. No. 93-058, § I, 4-6-93; Ord. No. 97-114, § IV, 4-1-97) Sec. 13-29. Hearing. A hearing of the appeal shall be conducted by the Building Construction Advisory and Appeals Board. The hearing shall be held at a time and place designated by the Building Construction Advisory and Appeals Board. The Building Construction Advisory and Appeals Board shall hear and consider evidence offered by any interested person. Based upon the recorded evidence of such hearing, the Building Construction Advisory and Appeals Board shall sustain, modify or rescind any notice or order considered in the hearing by a majority vote and provide a written report of the hearing decision to the holder of the permit. The decision of the Building Construction Advisory and Appeals Board is final as to administrative remedies, and no rehearing may be granted. Once the decision of the Building Construction Advisory and Appeals Board is final under this section, the applicant or permit holder may appeal the decision to the state district court or court of appropriate jurisdiction. (Ord. No. 93-058, § I, 4-6-93) Delete Section 13- 33 Correction of Violations. Sec. 13-34. Reinspection. (d) Re-inspection for failure to meet required score shall be performed within fourteen (14) calendar days immediately following the original inspection, or as soon as possible thereafter, -7- except that where an establishment is closed due to a score below sixty (60), pursuant to section 13-62, the original inspector shall determine the time of the re-inspection. (Ord. No. 93-058, § I, 4-6-93; Ord. No. 97-114, § VI, 4-1-97) Sec. 13-35. Fee for re-inspection. (a) The fee for re-inspection shall be one-half the annual permit fee of the establishment receiving the re-inspection. (b) A re-inspection fee wilt be charged for each re-inspection necessary to bring the food establishment's score above seventy-five (75). (c) Payment of the re-inspection fee shall not void, or in any way affect, the responsibility of the owner or permit holder for payment of any fines for any other violations of this chapter. (d) The person, partnership, or corporation listed as "owner" on the original application shall be responsible for payment of any and all fees, including re-inspection fees. The administrator shall send an invoice requesting payment of the re-inspection fee and the permit holder shall pay within thirty (30) days of the date of the invoice. (Ord. No. 93-058, § I, 4-6-93) Sec. 13-36. Examination and condenmation of food. Food may be examined or sanapled by the health officer as often as necessary for enforcement of any provision of this chapter. The health officer may, upon written notice to the owner or person in charge specifying with particularity the reasons therefore, place a hold order on any food, which he believes is in violation of Section 229.171 2 (N) of the Texas Food Establishment Rules or any other provision of the rules. The health officer shall tag, label, or otherwise identify any food subject to the hold order. No food subject to a hold order shall be used, served, or moved from the establishment. The health officer shall permit storage of the food under conditions specified in the hold order, unless storage is not possible without risk to the public health, in which case immediate destruction shall be ordered and accomplished. (Ord. No. 93-058, § I, 4-6-93) ARTICLE iV. REGULATION' OF FOOD HANDLERS* *Cross reference(s)--Licenses, permits and business regulations generally, Ch. 16. State law reference(s)--Regulation of food service employees, V.T.C.A., Health and Safety Code § 438.031 et seq. -8- Sec. 13-40. Food handler's card required. (a) Every person whose work brings them into contact with the handling of food, utensils, or food service equipment must possess a valid food handler's card. (b) Every person who owns, manages, or otherwise controls any food service establishment shall not permit any person to be employed therein who does not possess a valid food handler's card within ten (10) days from the date of their employment. (Ord. No. 93-058, § I, 4-6-93) Sec. 13-41. Exemptions. (a) Every person who possesses a current and valid State approved certificate shall be exempt from the requirements of section 13-40. (b) Three year card: Foodservice workers who have received a food handler's card for three (3) consecutive years may apply for a card that would be effective for the next three (3) years. (Ord. No. 93-058, § I, 4-6-93) See. 13-42. Food handler's card. In order to receive a food handler's card, every person must achieve a score of seventy (70) or above on the basic knowledge test administered by the City of Denton. This requirement must be met upon expiration of a food handler's card and upon application for a new food handler's card. (Ord. No. 93-058, § I, 4-6-93; Ord. No. 97-114, § VII, 4-1-97) See. 13-43. The permit holder of the food service establishment shall make food handler cards and food manager certificates available for immediate inspection upon request by the regulatory authority. (Ord. No. 93-058, § I, 4-6-93) Sec. 13-44. Duration of food handler card. Any food handler's card issued under the provisions of this article shall remain in full force and effect twelve (12) months from the date of issuance, unless exempt under Section 13-41. (Ord. No. 93-058, § I, 4-6-93) Sec. 13-45. Same-nontransferable. Every food handier card issued under the provisions of this chapter shall be nontransferable. (Ord. No. 93-058, § I, 4-6-93) -9- ARTICLE V. VENDORS, CATERING TRUCKS, MOBILE UNITS AND OUTDOOR SMOKER UNITS, AND SNOW-CONE VENDORS Sec. 13-51. Requirements for snow cone vendors. (a) A snow cone vendor shall be limited to the sale of snow cones and pre-packaged items only and shall have a: (1) (2) towels. Commercially approved source for ice and syrup; Hand wash sink with hot and cold running water under pressure, soap, and paper (3) At least a two (2) compartment sink (with hot and cold nmning water under pressure) for washing and sanitizing utensils. (4) Waste-water holding tank of adequate size for operation or be connected to an existing sanitary sewer. (b) A snow cone vendor may also be required to meet any and all provisions required for.a food service establishment, which the administrator deems necessary to protect the public health and safety. (Ord. No. 93-058, § I, 4-6-93) Sec. t3-53. Requirements for mobile un/ts. (a) All mobile units originating from or serving food within the city must have a valid food service permit, which must be kept in the vehicle at all times. The permit must bear the name of the registered owner of the Ixuck and truck license plate number. (Ord. No. 93-058, § I, 4-6-93; Ord. No. 97-114, § VIII, 4-1-97) Delete Section 13-55. Outdoor Smoker Units. ARTICLE VI. ENFORCEMENT Sec. 13-61. Violations. (a) The Building Official of the City of Denton, or any of his designated employees, shall have the responsibility and power to enforce all provisions of this chapter within the corporate limits of the City of Denton, Texas. (b) Whenever the health officer determines that there has been a violation of any provision of this chapter, which in his judgment can jeopardize the public health, or for violation of any items, which have been noted as problems on two (2) or more consecutive inspection reports, the health officer may issue a written citation for said person to appear in court. (c) It shall be unlawful for any person to knowingly give the health officer a false name when such officer requests the name of said person for purposes of enforcing the provisions of this chapter. (Ord. No. 93-058, § I, 4-6-93; Ord. No. 97-114, § IX, 4-1-97) Sec. 13-62. Authority to close. (a) The health officer shall close without warning any building or place described in this chapter and prevent its use for the storage, manufacture, or sale of food or drink for human consumption whenever: (1) The health officer, upon inspection of an establishment, finds sufficient violations, which cause the rating score of said establishment to be below a total of sixty (60) points; (2) The health officer finds that an establishment is operating with no working refrigeration units; (3) The health officer finds that an establishment is operating without running water or hot water for a period of more than one (1) hour; or (4) The health officer finds an establishinent is operating without a functioning warewashing machine or adequate sinks for manual warewashing. (b) It shall be the duty of the health officer to post a notice of closure for such conditions at the entrance of such building or place and to maintain the same until such conditions or practices have been removed or abated. (c) No person shall remove or alter in any way a sign, which has been posted by the health officer. (Ord. No. 93-058, § I, 4-6-93) SECTION 2: The Health Permit Fee Schedule set forth in Exhibit "A", attached hereto and made a part hereof for all purposes, is hereby adopted and authorized to be imposed for the purposes of application for, and issuance of, permits required for compliance with the provisions of Chapter 13 "Food and Food Service Establishments". SECTION 3: This ordinance shall repeal every prior ordinance in conflict herewith, but only insofar as the portion of such prior ordinance shall be in conflict; and as to all other sections of the ordinance not in direct conflict herewith, this ordinance shall be and is hereby made -11- cumulative exeept as to such prior ordinances or portions thereof as are expressly repealed hereby. SECTION4: Any person violating any provision of this ordinance, shall upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 5: If any provision of this ordinance or application thereof to any person or circumstance is held invalid by any court, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas hereby declares that it would have enacted the remaining portions despite any such validity. SECTION 6: Save and except as amended hereby, all the sections, subsections, and clauses of Chapter 13 Food and Service Establishments of the Code of Ordinances of the City of Denton, Texas shall remain in full force and effect. SECTION 7: This ordinance shall become effective, after its passage and approval, on ,2003, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the ~ day of ~ 2004 EULINEBROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY -12- Exhibit A: Health Permit Fee Schedule: Type of Establishment Fe_~e One year Food Handler Card Three Year Food Handier Card $ 15.00 $ 45.00 2. Pool Manager's Certification $ 35.00 Wine and Beer Inspections (#s 3 - 7) 4. 5. 6. 7. Beer and Wine Permit - New Application Processing Fee Wine and Beer Retailer's Permit On Premises Wine and Beer Retailer's Off Premises Retail Dealer's On Premise License Beer only Retail Dealer's On Premise Late Hours License $ 25.00 $ 87.50 $ 30.00 $ 75.00 $125.00 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. Annual Swimming Pool Permit Restaurants _< 2,000 square feet Gross floor area Restaurants > 2,000 square feet Gross floor area Grocery Store _< 12,000 square feet Gross floor area Grocery Store > 12,000 square feet Gross floor area Convenience Store Without Deli Convenience Store With Deli Concession Stand, snow cone stand, or similar structure Daycare Facility Nursing Home / Bar/Bakery Seasonal Permit Fee Temporary Permit Application Fee for New Establishments, not including Temporary Establishments Replacement Cards $160.00 $310.00 $485.00 $325.00 $45O.00 $250.0O $300.00 $175.00 $150.00 + $1.00/each child licensed $275.O0 $ 75.0O $ 20.00 $250.00 $ 5.00 - 13- CITY OF DENTON CITY COUNCIL MINUTES January 20, 2004 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, January 20, 2004 at 4:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Pro Tem Burroughs; Council Members Kamp, McNeill, Montgomery, Redmon and Thomson. ABSENT: Mayor Brock 1. The Council received a report, held a discussion and gave staff direction regarding proposed amendments to the Development Code and Criteria Manual related to Tree preservation. (SI03-0012, Tree Preservation) Council Member Montgomery suggested that the tree preservation information be worked into the Denton Development Code rather than be a separate ordinance. Council Member Kamp suggested the formation of a council subcommittee consisting of three members to disseminate the information received regarding the issue, break that information out into categories and come back with a recommendation to the entire council. Mayor Pro Tem Burroughs stated that the establishment of an ad hoc committee would give direction to the subject matter and a recommendation to the council. The committee could, within a short time frame, hash through the policy issues of each subject matter and bring back a recommendation to council as soon as possible. Council Member Kamp suggested Council Members McNeill and Montgomery and Mayor Pro Tem Burroughs be the representatives on the committee. Council Member Thomson asked about the Planning and Zoning Commission subcommittee and staff as part of the committee. Mayor Pro Tem Burroughs felt that they would be welcome to attend the meetings but would not be part of the committee. Council Member McNeill asked the Planning and Zoning Tree Committee about the intent of the ordinance and the final outcome of the proposed ordinance. Commissioner Mulroy felt that the original intent and the final draft of the proposed ordinance were very different versions. Whatever version was finally approved had to sustain politically, financially and legally throughout the years. The Committee's intent advocated immediate relief for appeals. Originally the Committee felt that a developer would work with the Director of Planning for appeals and if no workable solution was agreed on, the appeal would go to the Planning and Zoning Commission. If the Commission could not agree, the appeal would be sent on to the City Council. However, the final version of the proposed ordinance made it mandatory that the appeal go to both the Planning and Zoning Commission and the Council. In his opinion, a three-member appeal board might work better to expedite and streamline the process. City of DeNon City Council Minutes January 20, 2004 Page 2 Council poims of discussion with the Planning and Zoning Commission subcommittee included: · Tree preservation versus conservation · Council needed to raise the bar in order to attract quality development such as other cities had · Develop an incentive driven ordinance rather than a punitive ordinance · Real case studies were needed with the proposal to see how the requirements would work · The challenge was to develop an ordinance that reflected community values as a whole and that would be sustained 2-5 years out. · A permitting process was needed when dealing with a single-family lot developmem · Agricultural exemptions and the harvesting of trees · A conflict between the proposed ordinance and the canopy section of the existing developmem code · Growth rate of different species of trees relative to preservation · Formation of a tree board for professional accoumability and appeals · The appeals process needed to be easy and not time consuming · Differences between the two versions of the draft proposal · Trade-off credits among developers could be considered · Develop a tree criteria manual for developers · The Council subcommittee would clarify the proposal, not rewrite the proposal Preliminary topics of discussion for the council subcommittee included: · Alternatives to par down the process time, expense of process · Distinguish between small developmem and larger developmem · Infill · Discuss incorporating age of trees into a proposal · Buy out of credits · Appeals process and criteria for approval · Examples of mitigations · Exemptions-city-owned property, DISD 2. Staff responded to requests for clarification of consent agenda items listed on the consent agenda for the meeting of January 20, 2004. Following the completion of the Work Session, the City Council convened in a Closed Meeting to consider the specific items listed below under the Closed Meeting section of this agenda. 1. The Council considered the following in Closed Meeting: Consultation with the City Attorney-Under TEXAS GOVERNMENT CODE Section 551.071. Received a presemation, discussed, and considered the two (2) City of Denton impact fee appeal claims of the Denton Independent School District filed on December 10, 2003 pertaining to the Teasley Lane High City of DeNon City Council Minutes January 20, 2004 Page 3 School Project and the C.H. Collins Athletic Complex Project; consider the legal position of the City regarding the appeals by conducting a consultation with the City's attorneys in order to obtain the advice and recommendations of the City's attorneys concerning these appeals and related issues, where to discuss such issues and matters in a public meeting would conflict with the attorneys' duties and professional responsibilities to their client, the Denton City Council, under the Texas Disciplinary Rules of Professional Conduct. Receipt of legal advice from the City Attorney on matters in which his professional responsibility to the City Council requires private legal consultation pertaining to the termination of an airport lease dated April 1, 1999 between the City of DeNon and Wayne Allen Construction, Inc. for real property located at the Denton Municipal Airport. Regular Meeting of the City of Demon City Council on Tuesday, January 20, 2004 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 Pro Tem Burroughs presemed proclamations for: DeNon Family Unity Week Ryan Raider Day B. January Yard-of-the-Momh Awards Mayor Pro Tem Burroughs presented the awards to: Rob and Leslie Day Judy Marcotte North Branch Library-Water Smart Yard C. Recognition of staff accomplishmems City Manager Conduffpresemed staff accomplishmems to Council. 3. CITIZENS REPORTS A. The Council received citizen reports from the following: 1. Dr. Mitch Land regarding DWI traffic enforcement. City of DeNon City Council Minutes January 20, 2004 Page 4 Dr. Land read a letter he had sen to Chief Wiley and the DeNon Police DepartmeN. It commended the Police DepartmeN for its efforts to enforce DWI traffic violations. 2. Kavita Vadgana regarding DeNon Municipal Electric. Ms. Vadgana was not preseN at the meeting. 3. Nell Yeldell regarding utilities. Ms. Yeldell was not preseN at the meeting. 4. Dessie Goodson regarding agenda items and rules. Ms. Goodson stated that the Council rules indicated that there should be no applause in the Chambers regardless of the purpose. The applause for presentations was against the Council rules so she should not have to follow the rules. She questioned how the Denton County Transportation Authority could become involved with the City of DeNon. She also questioned a number of items that the Council approved during previous Council meetings. 4. CONSENT AGENDA McNeill motioned, Thomson seconded to approve the ConseN Agenda and accompanying ordinances and resolutions. On roll vote, Burroughs"ayd', Kamp"ayd', McNeill"ayd', MoNgomery 'hyd', Redmon"ayd', and Thomson"ayd'. Motion carried unanimously. 2004-015 - An ordinance accepting competitive bids and awarding a three-year contract for the purchase of 69kV and 138 kV instrument transformers for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (Bid 3113-Three-Year AgreemeN for Purchase of 69kV and 138 kV Instrument Transformers awarded to Ritz Instrument Transformers, Inc. in the estimated amouN of $145,000). 2004-016 - An ordinance accepting competitive bids and awarding a public works contract for the construction of Hickory Creek Basin Sanitary Sewer ReplacemeNs and Liners; providing for the expenditure of funds therefor; and providing an effective date (Bid 3107-Hickory Creek Basin Sanitary Sewer Replacements and Liners awarded to Circle C Construction in the amount of $1,995,275.50). 2004-017 - An ordinance accepting competitive bids and awarding a public works contract for the construction of Austin Street Sewer Improvements; providing for the expenditure of funds therefor; and providing an effective date (Bid 3116- Austin Street Sewer Improvements awarded to Friendship Construction, Inc. in the amount of $180,991). R2004-004 - A resolution of the City of DeNon, Texas authorizing the City Manager to execute a first amended lease agreement by and between the City of City of DeNon City Council Minutes January 20, 2004 Page 5 Demon, Texas and Demon County Archers, a Texas not-for-profit corporation; and providing for an effective date. mo 2004-018 An ordinance accepting competitive proposals and awarding a contract for the purchase of Group Term Life and Accidental Death and Dismembermem coverage for City employees; providing for the expenditure of funds therefor; and providing for an effective date (RFP 3121- Employee Term Life insurance awarded to iNG/Reliastar in the estimated amoum of $100,000). Fo 2004-019 - An ordinance accepting competitive bids and awarding a comract for the purchase of Street Milling Service for the maimenance and repair of City streets; providing for the expenditure of funds therefor; and providing an effective date (Bid 3126-Street Milling Service awarded to Dustrol, inc. in the estimated amoum of $210,000). Go 2004-020 - An ordinance authorizing the sale of property located within Block 6, Jasper Addition, City of DeNon, Texas, more commonly known as 634 E. Prairie Street, by the City of Denton, as trustee for the taxing entities pursuant to Texas property tax code; and providing for an effective date. Ho 2004-021 - An ordinance of the City of DeNon, Texas appoiming Robin A. Ramsay as Presiding Judge for the City of DeNon Municipal Court of Record; appointing Kimberly Cawley McCary as Assistant Judge for the city of Denton Municipal Court of Record; appoiming Earlean Cobbin Murphy as Assistam Judge for the City of DeNon Municipal Court of Record; appoiming Gregory L. Bertrand as Assistant Judge for the City of Denton Municipal Court of Record; appointing Juditha Lee Bertrand as Assistant Judge for the City of Denton Municipal Court of Record; appointing Ann Stephens Poston as Assistant Judge for the City of DeNon Municipal Court of Record; establishing terms of office for municipal judges in accordance with applicable state statutes; authorizing the Mayor to execute a contract for term of office; ratifying terms of contract; providing a severability clause; and providing retroactive effect and declaring an effective date. Approved a partial exaction variance of Section 35.20.2(L.2.) of the Code of Ordinances concerning perimeter paving and 35.20.3 (B.) concerning perimeter sidewalk requirements. The approximately 2-acre parcel was located on the west side of Westgate Drive north of Windsor Drive. The property was located in a Neighborhood Residemial 2 (NR-2) zoning district. A single-family residence was proposed. The subject lot was being subdivided from a 75-acre parcel. No developmem was proposed at this time for the remaining property. The Planning & Zoning Commission recommended approval of the partial variance as presemed by staff (7-0). (V03-0033, ADP Addition) Jo 2004-022 - An ordinance concerning the Alternative Developmem Plan for approximately 0.45 acres located in a Community Mixed Use - General (CM-G) zoning district. The property was generally located south of McKinney Street on the east side of Woodrow Lane. An office building was proposed. The Planning City of DeNon City Council Minutes January 20, 2004 Page 6 and Zoning Commission recommended approval (7-0). (ADP03-O008, Buchanan Office) R2004-005 - A resolution of the City Council of the City of DeNon, Texas, authorizing the City Manager, as Denton's authorized representative, to file a project application with the North Central Texas Council of Governments ("NCTCOG") for a regional solid waste program local project; authorizing the City Manager to act on behalf of the City of Denton in all matters related to the application; and pledging that if a project is received, the City of DeNon will comply with the project requirements of the NCTCOG, the Texas Natural Resource Conservation Commission and the State of Texas (Recycling-Pilot Program-Elementary School in Denton, Texas-Research and Development of Educational Materials-S42,400); and providing an effective date. 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. The Council considered adoption of an ordinance of the City Council of the City of Denton, Texas relating to the appeal of the Denton Independent School District regarding the Teasley Lane High School, 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. Tim Fisher, Assistant Director of Water Utilities, stated that he would review the details of both 5A and 5B as they were related. The DISD had requested that the City consider each of the requests separately. He stated that the DISD was requesting an assessment of the impact fees at the 1998 rate as opposed to the current rate. He reviewed the time line involved in the requests and the filing date of the final plat. A second componem of the appeal related the availability or the amount of an offset, credit or rebate and the application of an offset or credit against an impact fee. Staff felt that the appeals criteria were not applicable to the request. PUB considered the request and also recommended denial of the appeals. The DISD had raised questions between the commonality of the taxpayer in the DISD and City and the ratepayer in the DISD and the City. The Utility Departmem viewed this issue as a ratepayer issue. The boundaries for the two entities were not the same and ratepayers would be different. Mayor Pro Tem Burroughs felt that the DISD should be given more time to speak on this issue, as they were the applicants in the case. Consensus of the Council was to allow for a 15-minute discussion by the DISD. Ray Braswell, Superintendent of Schools, felt that there might be a case that the DISD should not be charged impact fees at all. He felt the DISD might be paying the fees twice. The DISD was asking the City to consider the 1998 rate structure rather than the current rate as the higher rate was not included in the bond package financials. He presemed a summary of key dates for the two projects. These were complicated projects in transition for many months. He felt that the request to use the 1998 rates was a fair request due to the amount of time that the projects were under consideration. The DISD did not comrol the final approval but did presem both projects for consideration before the date of the new rate ordinance. The DISD had asked the city to look at offsets for consideration. Both projects had extended sewer lines and water lines and felt that eventually they would enhance future developmem in the area. Other ISDs were being grained exemptions from impact fees so that it must not be illegal to do so. The DISD was not a developer, church, or hospital. It was a sovereign emity similar to the city. The DISD was one City of DeNon City Council Minutes January 20, 2004 Page 7 of the city's larger revenue sources that assisted the ratepayers for the City. Invoking the impact fees merely shifted the burden from one ratepayer to another, taxed DISD residents outside the city limits and residems of new developmems twice. Council discussed the ISDs in the area with no impact fees, the argument that people outside the city limits would be paying for city improvemems, and the unbundling of the developmem costs. Mayor Pro Tem Burroughs stated that a Comment card had been received from Michael Bates in support of the DISD request. Council Member McNeill felt that Council had received additional information at this meeting and felt that further legal information might be required. He questioned if the council would reconvene in Closed Session to discuss this new information. McNeill motioned, Kamp seconded to postpone consideration of Items 5A and 5B to the February 3, 2004 meeting with a Closed Session prior to the meeting. On roll vote, Burroughs 'hyd', Kamp"ayd', McNeill'hyd', Momgomery"ayd', Redmon"ayd', and Thomson"ayd'. Motion carried unanimously. B. The Council considered adoption of an ordinance of the City Council of the City of Denton, Texas relating to the appeal of the Denton Independent School District regarding the C.H. Collins Athletic Complex, 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. This item was considered with Item 5A and was postponed umil the February 3, 2004 meeting. C. The Council considered adoption of an ordinance of the City of DeNon, Texas terminating that certain airport lease dated March 1, 1999, by and between the City of Denton, Texas and Wayne Allen Construction, Inc.; authorizing the City Attorney or his designee to take appropriate legal action, if necessary, to effectuate the termination; and providing an effective date. Ed Snyder, Deputy City Attorney, presented the details of the issue. The lease indicated that building improvements were to be done at the site but to date no improvements had been done. Staffwas requesting the Council pass the ordinance in order to terminate the lease. The following ordinance was considered: NO. 2004-023 AN ORDINANCE OF THE CITY OF DENTON, TEXAS TERMINATING THAT CERTAIN AIRPORT LEASE DATED MARCH 1, 1999, BY AND BETWEEN THE CITY OF DENTON, TEXAS AND WAYNE ALLEN CONSTRUCTION, INC.; AUTHORIZING THE CITY ATTORNEY OR HIS DESIGNEE TO TAKE APPROPRIATE LEGAL ACTION, IF NECESSARY, TO EFFECTUATE THE TERMINATION; AND PROVIDING AN EFFECTIVE DATE. City of DeNon City Council Minutes January 20, 2004 Page 8 Kamp motioned, Montgomery seconded to adopt the ordinance. On roll vote, Burroughs"ayd', Kamp "ayd', McNeill "ayd~ Momgomery "ayd', Redmon "ayd', and Thomson "ayd'. Motion carried unanimously. D. The Council considered approval of a resolution by the City of DeNon, Texas, authorizing the City Manager to sign and submit an amendment to the 2003 Action Plan for Housing and Community Developmem submitted in June 2003 to the U.S. Departmem of Housing and Urban Developmem with appropriate certifications, as authorized and required by the Housing and Community Developmem Act of 1974, as amended, and the Affordable Housing Act of 1990, as amended; and providing for an effective date. Barbara Ross, Community Development Administrator, stated that the ordinance would approve a change to the 2003 Action Plan. The Denton Affordable Housing project was taking longer to complete so the funds would be reallocated to the Affordable Housing Opportunity Program. The following resolution was considered: NO. R2004-006 A RESOLUTION BY THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER TO SIGN AND SUBMIT AN AMENDMENT TO THE 2003 ACTION PLAN FOR HOUSING AND COMMUNITY DEVELOPMENT SUBMITTED IN JUNE 2003 TO THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT WITH APPROPRIATE CERTIFICATIONS, AS AUTHORIZED AND REQUIRED BY THE HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1974, AS AMENDED, AND THE AFFORDABLE HOUSING ACT OF 1990, AS AMENDED; AND PROVIDING FOR AN EFFECTIVE DATE. Thomson motioned, Knap seconded to approve the resolution. On roll vote, Burroughs "ayd', Kamp "ayd', McNeill "ayd~ Momgomery "ayd', Redmon "ayd', and Thomson "ayd'. Motion carried unanimously. E. New Business There were no items of New Business suggested by Council Members for future agendas. 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. G. There was no cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. H. There was no official action on Closed Meeting Item(s) under Sections 551.071- 551.086 of the Texas Open Meetings Act. With no further business, the meeting was adjourned at 7:45 p.m. City of Demon City Council Minutes January 20, 2004 Page 9 MARK BURROUGHS MAYOR PRO TEM CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES January 27, 2004 After determining that a quorum was preseN, the City Council of the City of DeNon, Texas convened in a Work Session on Tuesday, January 27, 2004 at 11:00 a.m. in the Training Room at the City of DeNon Solid Waste Facility, 1527 South Mayhill. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Kamp, McNeill, and Montgomery. ABSENT: Council Members Thomson and Redmon 1. The Council received a report, held a discussion and gave staff direction regarding solid waste policies and procedures. Charles Fiedler, Director of Engineering, outlined information regarding a landfill gas and biodiesel project. Challenges for the project included environmeNal compliance of landfill gas coNrol, new source performance standards, and engineering guidelines. Other challenges included the Clean Air Act amendmeNs that established air quality standards and the Energy Policy Act of 1992 that mandated alternative fueled vehicles with a 2007 compliance date. The cost of compliance included landfill costs and the costs for an initial collection system and vehicles. CurreN challenges for the landfill gas proposal included a limited landfill gas supply, no economical beneficial use for the gas, the cost to collect and flare the gas, the resource was currently wasted as it was not used and the contribution to the air quality non-attainment. Fiedler preseNed the landfill gas opportunity in which the firm, DTE, would work with the city in an alternative approach, present a potential income to pay for the control of the gas, and the city would install a collection system. The proposal would include the negotiation of a gas rights agreemeN, DTE would ideNify LFG customers, the securing of a gas sales agreemeN, design operate and maintain the LFG system, and the city would construct and permit the initial system. Fiedler also outlined a biodiesel production opportunity that utilized recycled cooking oil. The project could possibly be a local production of an alternative fuel and would guaraNee a fuel price for five years. The benefits of the biodiesel proposal included the fact that it would meet the alternative fuel requiremeNs, decrease air emissions, improve engine operation and life, provide a fuel price stability, provide for cooking oil recycling and reduce sewer clogs from grease. The proposal included an equipmeN purchase agreemeN with a lease-back provision in the agreement, a local entity would be formed with the company that would own and operate the plaN, the city would be represeNed on the board of directors and a commitmeN for a city biodiesel purchase and provide a land lease. Risks associated with the project included raw material availability, the fact that used cooking oil was a commodity with competing uses that resulted in value, curreN market competitors collecting the oil in the area and the soybean oil alternative. Community benefits included air emission reductions, a good example to the region, the establishment of a cost effective alternative and an environmentally friendly solution. Fiedler presented a cost comparison between the mandated conversion and the biodiesel proposal. Council discussion included the economics of the two proposals, the example it would set for the region, the benefits it would provide to city departmeNs and the community as a whole; and the permits required. Fiedler stated that the proposal had been presented to the Public Utilities Board on two separate occasions and a recommendation from the Board should be coming soon for Council consideration. City of Demon City Council Minutes January 27, 2004 Page 2 Consensus of Council was to proceed with the proposals and a recommendation from the Public Utilities Board. Vance Kemler, Director of Solid Waste, presented information on the commercial refuse service. He stated that the city had front, side roll-off compactors, carts and hand collection services available to residents. He stated that container location issues had been addressed in the recent attractiveness white paper. It was felt that containers visible from the street detracted from a property's appearance as well as those in the right-of-way and in from of buildings. He listed container relocation options that included new construction would continue to follow the development code requirements; existing commercial containers relocation; priorities would include the remove of containers currently in the streets, the removal of containers from street right-of-ways, the removal of containers from the front of properties or require screening; and the remove of containers on the sides of properties or require screening. Shirleen Sitton, Recycling Manager, presemed information regarding solid waste services and future alternatives. She suggested that getting rid of the containers downtown might be a way to get recycling going in the dowmown area. There had been a discussion about getting rid of containers and giving businesses a 96-gallon cart but it was felt that a 96-gallon cart would not be big enough for the majority of businesses. The currem refuse residemial collection services offered by the City included a bagged service at twice per week collection; cart service at once per week collection, a Pay-As-You-Throw (PAYT) volume based rate structure, once per week yard waste collection and once per week recycling curbside cart service collection. With pay-as- you-throw service the customer had control over his solid waste cost, as his cost would be based on the waste he generated. There were five major collection systems: a variable can program, a bag program, a sticker or tag program, a hybrid program and a weight-based program. Sitton presented community wide service options. She stated that automated collection service was not the system of choice for the emire community. A hybrid program utilizing cart and bags was more appropriate. The older areas of the community could remain on a bag service under a PAYT program. Newcomers could be converted to cart collection by side load or rear load vehicles. All refuse collections would be converted to once per week service. Once per week collection service reduced air pollution due to less running of refuse trucks that would realize fuel savings. Sitton reviewed the Wind River Pilot Project and the results of the survey taken from the Wind River residems. A large majority of the residems preferred trash carts once they had tried them. Recommendations from the survey included the implementation of a cart-based pay-as-you- throw trash pricing structure; continue to place carts in new subdivisions, rural and annexed areas; implement cart service in existing neighborhoods with varying collection methods where appropriate; reduce trash collection to once per week and implement the proposed changes in phases accompanied by a thorough public information campaign. 2. The Council held a discussion and gave staff direction regarding the need, purpose, and time frame for the creation of an ad hoc committee to explore a Council ethics policy. City of Demon City Council Minutes January 27, 2004 Page 3 Council discussed forming an ad hoc committee. General consensus was that Council Member Kamp and Thomson would serve on the committee. With no further business, the meeting was adjourned at 2:00 p.m. EULINE BROCK MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES February 3, 2004 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, February 3, 2004 at 4:00 p.m. in the Council Work Session Room. PRESENT: Mayor Brock; Council Members Kamp, McNeill, Montgomery, and Thomson. ABSENT: Mayor Pro Tem Burroughs; Council Member Redmon 1. Staff responded to requests for clarification of consent agenda items listed on the consent agenda for February 3, 2004. 1. Council considered the following in Closed Meeting: Mayor Pro Tem Burroughs joined the meeting during the Closed Session. Consultation with the City Attorney-Under TEXAS GOVERNMENT CODE Section 551.071. Received a presentation, discussed, and considered the two (2) City of Denton impact fee appeal claims of the Denton Independent School District filed on December 10, 2003 pertaining to the Teasley Lane High School Project and the C.H. Collins Athletic Complex Project; consider the legal position of the City regarding the appeals by conducting a consultation with the City's attorneys in order to obtain the advice and recommendations of the City's attorneys concerning these appeals and related issues, where to discuss such issues and matters in a public meeting would conflict with the attorneys' duties and professional responsibilities to their client, the Denton City Council, under the Texas Disciplinary Rules of Professional Conduct. B. Personnel Matters-Under TEXAS GOVERNMENT CODE Section 551.074. Evaluation of Municipal Judge Evaluation of City Attorney Evaluation of City Manager Regular Meeting of the City of Denton City Council on Tuesday, February 3, 2004 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 City of Demon City Council Minutes February 3, 2004 Page 2 Mayor Brock presented proclamations for: Harold Jackson Day Andrew Scott Day Charles Alexander Day Leonard Terry Stansbury Charlye Heggins Day B. Recognition of staff accomplishments City Manager Conduffpresemed staff accomplishmems to the Council. 3. CITIZENS REPORTS A. The Council received citizen reports from the following: 1. John Skelton regarding water meters and impact fees. Mr. Skelton stated he was a local developer in the process of completing a development in Denton. He had a problem with the installation of a water meter relative to his landscaping of the median and the related impact fee. He would not be able to install a water meter for watering the landscaping as the cost was too high. 2. Dessie Goodson regarding competency. Ms. Goodson was not present at the meeting. 3. Chris Williams regarding Ordinance 2003-266 and the utility billing cycle imposed by that ordinance. Mr. Williams was not present at the meeting. 4. Carolyn Phillips regarding the Demon Housing Authority Board. Ms. Phillips expressed a concern with the Demon Housing Authority Board and the acceptance of the Director's resignation. She listed the accomplishments of Ms. Minster during her tenure as Director. 5. Irene Burk regarding the Denton Housing Authority. Ms. Burk stated that she was in support of the former Director and felt that the Housing Authority did not respond to the wishes of the senior population. She would be requesting an investigation into the activities of the Housing Authority. 4. CONSENT AGENDA City of Demon City Council Minutes February 3, 2004 Page 3 Burroughs motioned, Montgomery seconded to approve the Consent Agenda and accompanying ordinances and resolutions with the exception of item N. On roll vote, Burroughs"ayd', Kamp"ayd', McNeill"ayd~ Momgomery"ayd', Thomson"ayd'axtd Mayor Brock"ayd'. Motion carried unanimously. Montgomery motioned, Thomson seconded to approve Item N with the change in wording in Section 6.4.C. to "should' instead of"shall. On roll vote, Burroughs"ayd', Kamp "ayd', McNeill"ayd~ Momgomery"ayd', Thomson"ayd'and Mayor Brock"ayd'. Motion carried unanimously. A. Approved the minutes of January 6, 2004 and January 13, 2004. R2004-007-A resolution authorizing the participation by the City Attorney in an amici curiae brief to be filed by a number of home rule cities in support of the argument by the City of Irving, Texas, in the appeal pending in the Fifth District Court of Appeals styled City of Irving v. Inform Construction, Inc., and providing an effective date. 2004-024 - An ordinance repealing Ordinance No. 2000-429 and authorizing Assignment Pay for Fire Department employees in the classification of Battalion Chief who perform the specialized duties of Training Chief and Emergency Medical Services Chief, Battalion Chief- information Services Manager, and Captain-Logistics/Maimenance Officer who are assigned to perform assigned functions on a forty-hour work week in the Fire Departmem and providing an effective date. 2004-025 - An ordinance of the City of Demon, Texas 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 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 Demon in order to implemem the project; and providing an effective date. 2004-026-An ordinance of the City of Demon authorizing the City Manager, or his designee, to execute on behalf of the City of Demon an acceptance of an offer from the Texas Department of Transportation relating to a grant for routine Airport Maintenance Program; authorizing the City Manager to expend funds provided for in the gram program; and declaring an effective date (TxDOT) Project No.: AM2004DNTON; and TxDOT CSJ No.: M418DNTON). Approved tax refunds for the following property taxes: Tax Name Reason Amount Year aage 2. Amplicon Financial DCAD Supplememal 2002 932.14 Change 4. Roberson, Linwood & Eula Duplicate Paymem 2001 670.59 Refund City of DeNon City Council Minutes February 3, 2004 Page 4 Tax Name Reason Amount Year ~i ~arg~ ~i~an i~ 0v~ay~nt R~a g ~ Go R2004-008 - A resolution reviewing and adopting the investmem policy for funds for the City of DeNon; designating an investmem officer; providing a savings and repealing clause; and providing an effective date. Ho 2004-027 - An ordinance authorizing the purchase of fitness equipment for North Lakes Recreation Center from Bodyworks Fitness; providing for the expenditure of funds therefor; and providing an effective date (Bid 3124-Lease/Purchase of Fitness Equipment-North Lakes in the amount of $12,876.78 per year for a three year total of $38,630.34). 2004-028 - An ordinance authorizing the City Manager or his designee to execute a professional services agreemem with EMS Biocare Medical Comrol of Methodist Dallas Medical Center to provide medical control and continuing education services in support of the City of Denton Fire Department; authorizing the expenditure of funds therefor and providing an effective date (RFP 3061-in an amoum not to exceed $66,000). Jo 2004-029 - An ordinance authorizing the City Manager or his designee to execute a professional services agreement with Alan Plummer Associates, Inc. to perform an odor survey and air dispersion modeling of City owned facilities; authorizing the expenditure of funds therefor and providing an effective date (RFP 3117-in an amoum not to exceed $116,330). Ko 2004-030 - An ordinance accepting competitive bids and awarding a public works contract for the construction of sidewalks for McKinney Street; providing for the expenditure of funds therefor; and providing an effective date (Bid 3119- McKinney Street Sidewalks awarded to Quantum Contracting, Inc. in the amount of $70,628). Lo 2004-031 - An ordinance of the City Council of the City of DeNon designating a depository for City funds for a term beginning March 1, 2004 and ending February 28, 2006; authorizing the Mayor to execute a Depository Contract with Bank One as the primary depositary; authorizing the City Manager and other City employees to transact business with the depository; and providing for an effective date. Mo 2004-032 - An ordinance accepting competitive bids and awarding a comract for the purchase of an automated meter reading system for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (Bid 3122- Automated Meter Reading System awarded to the lowest responsible bidder for each item for a total estimated amoum of $84,000). No 2004-033 - An ordinance amending Ordinance No. 2002-018, No. 2004-014 and Section 2-29 of the City Code relating to the Rules of Procedure to clarify Section 6.4c (2-29(f)(4)c)"Presemation By Citizens and Section 6.5 (2-29(0(5))"Time Limit§'; providing a savings clause; and providing an effective date. City of DeNon City Council Minutes February 3, 2004 Page 5 5. PUBLIC HEARINGS A. The Council held a public hearing to consider amending the Mobility Plan Component of The Denton Plan to revise the location of Lakeview Blvd and to change the classifications of various streets. After the conclusion of the public hearing, the City Council considered the adoption of one of the following ordinances: An ordinance amending the Mobility Plan componem of the DeNon Plan to revise the location of Lakeview Blvd, to change the classifications of Trinity Road between Mills Road and FM 426 to a collector street, Route No. 1 of Lakeview Blvd as shown on the currem Mobility Plan between Mills Road and FM 426 to a collector street, and FM 426 between proposed Route No.5 of Lakeview Blvd and the intersection of current Route No.1 of Lakeview Blvd. to a secondary arterial; and providing an effective date. The Planning & Zoning Commission recommends approval (5-2). An ordinance amending the Mobility Plan componem of the DeNon Plan to revise the location of Lakeview Blvd; to change the classification of Trinity Road between Mills Road and FM 426 to a collector street, change Route No. 1 of Lakeview Blvd between Mills Road and FM 426 to a collector, change FM 426 between proposed Route No. 4 of Lakeview Blvd. and Route No. 1 of Lakeview Blvd. to a secondary arterial, change Lakeview Blvd. between proposed Route No. 4 and Edwards Road to a collector, change Edwards Road between Swisher Road and existing Lakeview Blvd. to a collector, and change Swisher Road between Pockrus Page Road and Edwards Road to a local street; and providing an effective date. Charles Fiedler, Director of Engineering, presented details of notifications sent out to area residems and the delay in delivery of those notices by the Post Office. City Attorney Prouty stated that the legal requirements required a 15-day notice was to be sent out before the holding of the public hearing. The previous public hearings were done correctly and as this was a third public hearing, it would not be considered a substamial defect to hold this public hearing. A conservative procedure would be to delay consideration of the item and resend the notices out in a timely manner. Deputy City Attorney Snyder stated that state law did not require an advertisement for such an amendmem but that DeMon's ordinance required an advertisemem. Council had already had two prior public hearings that were advertised properly. This public hearing had been advertised in the newspaper, just not within the 15 day time period. If the council were to proceed with the public hearing, it would be in substamial compliance but not literal compliance of the ordinance. Mayor Brock indicated that options would be to postpone the public hearing and re-notice the meeting or hold the public hearing but make no decision. City of Demon City Council Minutes February 3, 2004 Page 6 Council discussed the pros and cons of holding or delaying the public hearing and the impact it might have on the neighborhood and developer. Consensus of opinion was to proceed with the public hearing and a decision on the issue. Fiedler stated that staff had evaluated other alternatives for Lakeview Blvd. Those evaluations were included in the Council's back-up materials. The Mayor opened the public hearing. The following individuals spoke during the public hearing: Cyann Looney, 5493 Edwards Road, Denton - opposed to Route 4 John DeVries, 4099 Swisher Road, Demon, 76208-opposed to Route 4 Susan May, 5493 Edwards Road, Denton, 76208-opposed to Route 4 Rebecca Nunez, 3057 Swisher Road, Denton, 76208 - opposed to Route 4 Gina Nunez, 3325 Swisher Road, Demon, 76208 - opposed to Route 4 Marueen Jamile, 4208 Boxwood Drive, Denton, 76208 - opposed to Route 5 Heather Bobo, 4144 Boxwood Drive, Denton, 76208 - opposed to Route 5 Scott Lent, 6509 Daisy Drive, Denton, 76208 - opposed to Route 5 Serena Eckert, 6600 Lantana Drive, Denton, 76208-opposed to Route 5 Bill Dahlstrom, 901 Main Street, Suite 6000, Dallas, 75202-favor of Route 4 Dan Hopkins, representing Pecan Creek development-favor of Route 4 Clayton Newman, 6406 Daisy Drive, Demon, 76208 - favor of Route 4 Carold Nunez, 3057 Swisher Road, Demon, 76208 - favor of Route 5 Dena Devereaux, letter read by Carold Nunez, in favor of Route 5 The following individuals submitted Commem Cards: Janice Randel, 4508 Trumpet Vine, Denton, 76208 - opposed to Route 5 Bradley Schafer, 4147 Boxwood Drive, Denton, 76208 - opposed to Route 5 Catherine and Todd Knight, 6502 Daisy Drive, Demon, 76208 - favor of Route 4 Chandra and Brad Rivers, 4245 Boxwood, Demon, 76208 - favor of Route 4 Tammy and James Wenger, 4202 Boxwood Drive, Denton, 76208 - favor of Route 4 Mike Echert, 6600 Lantana Drive, Denton, 76208 - opposed to Route 5 Sandra Dutton, 6300 Hawthorne Drive, Denton, 76208 - opposed to Route 5 Hugh and Ginger OS'qeil, 4602 Trumpet Vine, Denton, 76208 - opposed to Route 5 Darryle and Doretta Petters, 4201 Boxwood Drive, Denton, 76208 - opposed to Route 5 Mark and Laura Leeds, 6506 Lantana Drive, Denton, 76208 - favor of Route 4 Troy Jamail, 4208 Boxwood, Denton, 76208 - opposed to Route 5 Delores and Frank Simon, 4605 Trumpet Vine, Denton, 76208 - opposed to Route 5 Rebecca Scott, 4605 Baytree, Denton, 76208 - opposed to Route 5 Deanna Velat, 6602 Lantana Drive, Denton, 76208 - opposed to Route 5 Cyndi and Brian Buckingham, 6503 Lantana Drive, Denton, 76208 - opposed to Route 5 Rich and Carrie Stoechert, 6500 Lantana Drive, Denton, 76208 - opposed to Route 5 Donise Lent, 6509 Daisy Drive, Denton, 76208 - opposed to Route 5 Becca Pierce, 6305 Barberry, Denton, 76208 - opposed to Route 5 R. T. and Jackie Bruce, 4215 Boxwood Drive, Denton, 76208 - opposed to Route 5 Michael Smith, 4511 Baytree, Denton, 76208 - opposed to Route 5 Bob Bobo, 4144 Boxwood Drive, Denton, 76208 - opposed to Route 5 Paige and Jay Walker, 6302 Hawthorne Drive, Denton, 76208 - opposed to Route 5 City of Demon City Council Minutes February 3, 2004 Page 7 Jim Basham, 4201 Sweetgum, Denton, 76208 - opposed to Route 5 Rita Newman, 6406 Daisy Drive, Denton, 76208 - opposed to Route 5 Sue and Scott Ewing, 6503 Barberry, Denton, 76208 - opposed to Route 5 Gary and Carol Paul, 6506 Daisy Drive, Denton, 76208 - opposed to Route 5 Josephine and David Olson, 6298 Hawthorn Drive, Denton, 76208 - opposed to Route 5 Patricia and Bill Yates, 6409 Daisy Drive, Denton, 76208 - opposed to Route 5 Abia Busby, 4205 Boxwood Drive, Denton, 76208 - opposed to Route 5 Mike Boswell, 4511 Trumpet vine, Denton, 76208 - favor of Route 5 The Mayor closed the public hearing. Council Member Kamp stated that concessions had been made by the neighbors and development people in Pecan Creek. With the financial issue taken off the table and the right-of- way land donated to the city, she was in favor of Route 4. She felt Route 4 was a thoroughfare as opposed to Route 5 and would support Route 4. Mayor Pro Tem Burroughs stated that this was a transportation and mobility issue with the roadway being a critical connector for the early morning hours. With a school zone crossing planned for Route 5 and the large number of homes south of the route, the mobility factor of the road would be slowed down during the worst possible time of the day. He felt Route 4 would more positively impact mobility. Council Member Montgomery stated that the purpose of a boulevard was to move traffic and a long- term investment was needed to relieve a long-term problem. Council Member Thomson felt that Route 4 would minimize problems in the area better than Route 5. Council Member McNeill stated that a second route was needed due to the traffic in the area. Route 4 was a more efficient route to do that and was less expensive than Route 5. He was in favor of Route 4. Kamp motioned, Thomson seconded to deny ordinance 5.A. 1. and to approve 5.A.2 as amended by the Legal Departmem. On roll vote, Burroughs "ayd', Kamp "ayd', McNeill "ayd', Momgomery 'hyd', Thomson"ayd'axtd Mayor Brock"ayd'. Motion carried unanimously. NO. 2004-034 AN ORDINANCE AMENDING THE MOBILITY PLAN COMPONENT OF THE DENTON PLAN TO REVISE THE LOCATION OF LAKEVIEW BLVD; TO CHANGE THE CLASSIFICATION OF TRINITY ROAD BETWEEN MILLS ROAD AND FM 426 TO A COLLECTOR STREET, CHANGE ROUTE NO. 1 OF LAKEVIEW BLVD BETWEEN MILLS ROAD AND FM 426 TO A COLLECTOR, CHANGE FM 426 BETWEEN PROPOSED ROUTE NO. 4 OF LAKEVIEW BLVD. AND ROUTE NO. 1 OF LAKEVIEW BLVD. TO A SECONDARY ARTERIAL, CHANGE LAKEVIEW BLVD. BETWEEN PROPOSED ROUTE NO. 4 AND EDWARDS ROAD TO A COLLECTOR, CHANGE EDWARDS ROAD BETWEEN SWISHER ROAD AND EXISTING LAKEVIEW BLVD. TO A COLLECTOR, AND City of DeNon City Council Minutes February 3, 2004 Page 8 CHANGE SWISHER ROAD BETWEEN POCKRUS PAGE ROAD AND EDWARDS ROAD TO A LOCAL STREET; AND PROVIDING AN EFFECTIVE DATE. The Council considered Item 5C. C. The Council held a public hearing and considered adoption of an ordinance regarding the rezoning of approximately 6.6 acres from Neighborhood Residemial 2 (NR-2) zoning district to Neighborhood Residemial 4 (NR-4) zoning district. The property was located approximately 350 feet south of Paisley Street, between Audra Lane and Mack Drive. Applicam proposed single-family uses. The Planning and Zoning Commission recommended approval (6- 1). (Z03-0030, Laurel Oaks DevelopmenO Curtis Loveless, representing the petitioner, stated that as there were only six council members presem and as the proposal required a supermajority vote, he would like to postpone consideration of the item until the next regular session. Burroughs motioned, McNeill seconded to postpone the item umil the February 17, 2004 council meeting. On roll vote, Burroughs"ayd', Kamp"ayd', McNeill'hyd', Momgomery"ayd', Thomson"ayd' and Mayor Brock"ayd'. Motion carried unanimously. The Council returned to the regular agenda order. B. The Council held a public hearing and considered adoption of an ordinance regarding a Specific Use Permit for an automotive servicing and repair shop. The approximately 0.95 acre property was in a Dowmown Commercial General (DC-G) zoning district and was generally located on the south side of McKinney Street approximately 300 feet east of Frame Street. The Planning and Zoning Commission recommended approval (7-0) with conditions. (Z03-0029, A&A Motors) Larry Reichhart, Assistam Director of Planning and Developmem, presemed the details of the proposal. He stated that a simple majority vote of Council would be required. The proposal was for a specific use permit for an auto repair shop. The Planning and Zoning Commission had recommended approval with conditions. The Mayor opened public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. The following ordinance was considered: NO. 2004-035 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A SPECIFIC USE PERMIT FOR AN AUTOMOTIVE REPAIR SHOP ON APPROXIMATELY 0.95 ACRE OF LAND GENERALLY LOCATED SOUTH OF MCKINNEY STREET APPROXIMATELY 300 FEET EAST OF FRAME STREET, WITHIN A DOWNTOWN COMMERCIAL GENERAL ZONING DISTRICT CLASSIFICATION City of Demon City Council Minutes February 3, 2004 Page 9 AND USE DESIGNATION; PROVIDING FOR A PENALTY 1N THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING FOR AN EFFECTIVE DATE. Burroughs motioned, Montgomery seconded to adopt the ordinance with the conditions recommended by the Planning and Zoning Commission. On roll vote, Burroughs"ayd~ Kamp"ayd', McNeill"ayd~ Momgomery"ayd', Thomson"ayd'axtd Mayor Brock"ayd'. Motion carried unanimously. D. The Council held a public hearing and considered adoption of an ordinance concerning the rezoning of approximately 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 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 approval (6-1). (Z03-0022, Oriole CourO Mayor Brock indicated that Items D and E would be considered at same time with joim public hearings. Larry Reichhart, Assistant Director for Planning and Development, stated that the Planning and Zoning Commission had recommended Oriole Court for approval. A new proposal had been received regarding Nevada Court that would reduce the density from the prior proposal. The Planning and Zoning Commission had recommended denial of Nevada Court but the Council would be receiving new information on that proposal. The Mayor opened public hearing. The following individuals spoke during the public hearing: Alan Bussell, represeming the petitioner - favor of both sites for good infill Council discussion included how long the restrictions for the type of housing for Nevada Court would be valid and the visual effect of the outside of the structures due to the common walls. The following individuals also spoke during the public hearing: Tammy Wellman, 4137 Ballard Trail, The Colony, 75056-favor Teri and Frenchy Rheault, 35 Wellington Oaks Circle, Demon, 76210 - favor Mark Fearing, 440 Strata, Denton, 76201-favor Jane Provo, 604 N. Bell, Demon, 76209-favor Linnie McAdams, 1120 Kendolph, Demon, 76205-favor Ruby Jones, 303 McKinney, Demon, 76209-concern about neighboring property Tom Brewer, 830 I35, Denton, 76205-favor Elizabeth and James Fagan, 3304 Woodthrush, Demon, 76209-opposed Wendy Mayfield, 3321 Kingfisher Lane, Demon, 76209 - opposed Carlton Wendel, 3300 Woodthrush, Demon, 76209 - opposed Jeff Hyde, 3406 Kingfisher Lane, Demon, 76209 - opposed Teresa Dillard, 3024 Paisley, Demon, 76209 - opposed Robert Graber, 2908 Penniman Road, Demon, 76209-opposed City of Demon City Council Minutes February 3, 2004 Page 10 Commem cards were received from the following individuals: Jack McKinney, 3140 No. Trinity Road, Demon, 76208 - favor William Crouch, 408 Magnolia, Demon, 76201 - favor Sadie Castillo, 3308 Huisache, Demon, 76209 - favor Martin Jaeckel, 2111 Emerson, Denton, 76209 - favor Karen White, 3217 Deerfield, Demon, 76208 - favor Jorge Palos, 2293 West Oak #1, Denton, 76201 - favor Joe Lanham, 4090 Sauls Road, Aubrey, 76227 - favor Katherine Litteral, 3308 Huisache, Denton, 76209 - favor Vickie Hendricks, 2207 Cindy Lane, Demon, 76207 - favor D. Jorge Urbina, 2224 Houston, Denton, 76201 - favor Noe Rodriguez, 416 Meng Circle, Demon, 76209 - favor Kelley Reese, 2008 Paisley, Demon, 76209 - opposed Janet and Allen Kingsley, 3311 Kingfisher, Demon, 76209 - opposed Cymhia Graber, 2908 Penniman Road, Demon, 76209 - opposed Emily Valdez, 3407 Kingfisher, Demon, 76209 - opposed Dierdre Wendel, 3300 Woodthrush, Demon, 76209 - opposed Janet Grauso, 3323 Kingfisher, Demon, 76209 - opposed Jennie Davis, 3323 Kingfisher, Demon, 76209 - opposed William Stramm, 2804 Christopher, Demon, 76209 - opposed Emily Joos, 3012 Weston, Denton, 76209 - opposed Jeff Baker, 3313 Kingfisher, Demon, 76209 - opposed Yance Stevens, 3020 Bob O Link, Demon, 76209 - opposed Andy and Neva Thomas, 3318 Meadowlark, Demon, 76209 - opposed Dustin Wright, 3412 Oriole, Demon, 76209 - opposed Melinda Cacal, 3025 Bob O Link, Demon, 76209 - opposed Jennifer Ebert, 3502 Kingfisher, Demon, 76209 - opposed Eyrline and Douglas Morgan, 400 Conditt Circle, Demon, 76209 - opposed Don Goldstone, 3405 Kingfisher, Demon, 76209 - opposed The following individuals also spoke during the public hearing: Kay Fisher, 2601 W. Oak Shores, Cross Roads, 76227-favor Jason Joos, 3012 Weston, Denton, 76209 - opposed Jean Pekara, 3403 Kingfisher, Demon, 76209 - opposed Jack Kingsley, 3311 Kingfisher, Demon, 76209 - opposed Peggy Fearing, 525 Roberts, Denton 76201 - favor The Mayor closed public hearing. Issues the Council considered during discussion included the emotional issues and trust connected with the proposal; the affordable housing portion of the proposals appeared to be an attribute to the community; keeping the single-family home portion of the proposals at the NR-4 zoning category; the Oriole Court proposal seemed to be generating the most opposition due to the density of the zoning; and the cost factors involved with infill developmem. Mayor Brock asked that Item E. be considered before Item D. City of DeNon City Council Minutes February 3, 2004 Page 11 The following ordinance was considered: NO. 2004-036 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZON1NG CHANGE FROM NEIGHBORHOOD RESIDENTIAL 4 (NR-4) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION TO NEIGHBORHOOD RESIDENTIAL 6 (NR-6) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR APPROXIMATELY 3.85 ACRES OF LAND COMMONLY KNOWN AS 406, 408, 410, AND 414 MOCKINGBIRD LANE GENERALLY LOCATED AT THE INTERSECTION OF MOCKINGBIRD LANE AND WESTON DRIVE ALONG THE EAST SIDE OF MOCKINGBIRD LANE AND LEGALLY DESCRIBED AS TRACTS 3, 4, 5, 6, 12, AND 13 OF THE M. YOACHUM SURVEY IN THE CITY OF DENTON, DENTON COUNTY, TEXAS ; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z03-0023) Kamp motioned, Burroughs seconded to adopt the ordinance based on the proposal presented at the meeting with the rezoning of the 1.974 acres subject to verification of the property description with the remainder of the tract remaining at NR-4. On roll vote, Burroughs "ayd', Kamp "ayd', McNeill"ayd; Momgomery"ayd', Thomson"ayd' and Mayor Brock"ayd'. Motion carried unanimously. Council considered Item D. Mayor motioned, Kamp seconded to deny. On roll vote, Burroughs"ayd', Kamp"ayd', McNeill"ayd', Momgomery"ayd', Thomson"nay"and Mayor Brock"ayd'. Motion to deny carried with a 5-1 vote. E. The Council held a public hearing and considered adoption of an ordinance concerning the rezoning of approximately 3.9 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 attached single-family units wee proposed. The Planning and Zoning Commission recommended denial (6-1). (Z03-0023, Nevada CourO The public hearing and vote for this item were considered with Item 5.D. 6. ITEMS FOR INDIVIDUAL CONSIDERATION A. The Council considered adoption of an ordinance of the City Council of the City of Denton, Texas relating to the appeal of the Denton Independent School District regarding the Teasley Lane High School, 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. Mayor Brock stated that Council had asked for additional information from staff on Items 6A and 6B. City of DeNon City Council Minutes February 3, 2004 Page 12 Burroughs motioned, McNeill seconded to continue Items 6A and 6B to allow staff time to continue investigation on these items. The items would return to Council when staff had completed the investigation. On roll vote, Burroughs"ayd', Kamp"ayd', McNeill"ayd', Momgomery 'hyd', Thomson"ayd'axtd Mayor Brock"ayd'. Motion carried unanimously. B. The Council considered adoption of an ordinance of the City Council of the City of Denton, Texas relating to the appeal of the Denton Independent School District regarding the C.H. Collins Athletic Complex, 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. This item was considered with Item 6A. C. New Business The following item of New Business was suggested for future agendas: A. Mayor Pro Tem Burroughs asked that duplexes by only a specific use permit be considered when drafting an NR-5 zoning category. Do 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. E. There was no cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. F. There was no official action on Closed Meeting Item(s) under Sections 551.071- 551.086 of the Texas Open Meetings Act. With no further business, the meeting was adjourned at 11:30 p.m. EULINEBROCK MAYOR CITY OFDENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES February 10, 2004 After determining that a quorum was present, the City Council convened in a Planning Session on Tuesday, February 10, 2004 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 a report and held a discussion regarding Attractiveness/Community Aesthetics. City Manager Conduff stated that Council had requested to continue this item from the prior meeting. Council would be focusing on outcomes regarding Attractiveness/Community Aesthetics. Council discussion included: · Improve the appearance of the community by cleaning it up-junked vehicles, trash, dumpsters on the street, especially in the Downtown and historic areas, litter. · Relocation of dumpsters in key areas: look at new technology for solid waste. · Condition of highways in terms of amount of litter; partnerships with TxDot. · Code Enforcement~fence maintenance-define what constitutes fence maintenance-current regulations were placed in Development Code and whether that was a correct location. · Restrictions for used car sales. · Restrictions for parking of vehicles in yards. · Provisions for street trees. · The challenge of rental property-lack of maintenance. · Gage community opinion. 2. The Council received a report, held a discussion, and give staff direction regarding a multi-year financial forecast, municipal operations funding, budget process, and capital items. Kathy DuBose, Assistant City Manager for Finance, presented the general fund long-range financial forecast. She reviewed the appraisal roll comparison percentage change over the last six years as well as the sales tax history percentage change. Assumptions included no property tax rate increase, property tax values at 8, 10 and 6%; sales tax increase at 5%; franchises for electric, water and wastewater utilities based on rate revenue; external utilities based on a 5% growth; fines, fees licenses, permits and miscellaneous revenues in a 2-5% range: return on investment based on utility revenue projections. Expectations included personal services at 4% for years 1-5; health insurance increase ~23% for year 1, 20% for years 2-5; gas, oil and diesel increase at 5%; supplies, maintenance and operations at a 1.8-2.6% increase; electric, water wastewater and solid waste based on utilities projects, no new positions except for capital related improvement programs, expenditures included O&M associated with bringing new CIP projects on line. The CIP included a 5 year bond referendum of $28,000,000; construction of Fire Station 7 in 2005-06 and the hiring of 15 firefighters in September of 2005; the addition of an ambulance company to Station 7 in year 2006-07 as call-load necessitated; seek partnerships and/or cooperative arrangements with surrounding communities and organizations for construction and City of DeNon City Council Minutes February 10, 2004 Page 2 operation of a fire training facility; Emily Fowler Library renovation completed in late spring 2005. DuBose reviewed the five-year financial forecast summary at an 8%, 10% and 6% growth rate. Priorities include street maintenance, capital improvement program and economic development, unfunded needs, street maintenance, and new positions related to growth only Jim Coulter, Director of Water/Wastewater, presented details on Denton's streets. He reviewed scenarios that might occur if the streets were not maintained and the overall condition index of Denton's streets. Pavement distresses included cracking, distortion, disintegration and skid hazards. The causes of distresses included wheel loads, environmem, poor drainage, material deficiencies and external causes such as utility cuts. He reviewed currem expenditures for streets including the current street budget, labor equipment, materials and personnel. He demonstrated the overall condition index distribution of the streets that would allow the monitoring of streets over time. Coulter reviewed the existing street needs assessment and the street maintenance funding needs with potential funding sources. Council discussion included consideration for the condition of streets when annexing new areas imo the city. City Manager Conduff stated that this five-year forecast was very conservative on the expenditure side. It did not allow for keeping with the maintenance on streets and did not allow for any new positions based on growth. The forecast also anticipated no new tax increases that was really unrealistic. He stated that a slight tax increase of perhaps less that 2% might be required and questioned if council would support such an increase. Council discussed budget increases as they related to salaries, the theory of not giving the same kind of money to all departments relative to salary allocations, whether revenue generating departments should be held to the same standards as other departments; the fact that raising the tax rate did not solve much unless the tax base increased; and a tentative support of a tax increase if the economic recovery supported it. Other poims of discussion included performance based budgets; biting the bullet and considering a tax increase; school taxes associated with city taxes; political problems associated with increases in ad valorem taxes; a possible time limit on a proposed tax increase dedicated to street maintenance; identification of streets needing the most repair and how that would be paid; the fact that at some point there was a need to do the right thing; and creative ways to advertise the need for street construction such as through DTV, a speakers bureau and news articles. 3. There were no suggestions for the Agenda Committee on future agenda items and/or placement of items for upcoming agendas. With no further business, the meeting was adjourned at 6:30 p.m. EULINEBROCK MAYOR CITY OFDENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM: February 23, 2004 City Manager's Office Michael Conduff, City Manager SUBJECT Consider a request for an exception to the Noise Ordinance for the purpose of a music festival conducted by Creatures for Awareness, at the North Texas Fair Grounds, on Saturday, March 27, 2004 from 12:00 Noon to 10:00 p.m. The exception is specifically requested for an increase in the maximum allowable decibels for an outdoor music festival. BACKGROUND RJ Avery, with Creatures for Awareness, has submitted a request to an increase in the decibel level from 65dba to 75dba. The proceeds of the music festival will benefit the following Denton organizations: Denton County Friends of the Family, Denton County Big Brothers and Big Sisters, AIDS Services of North Texas, Visiting Nurses Association, Community Food Bank and the Nelson Center. Amplified sound will be used for both music and public announcements. The organization will distribute flyers in the surrounding neighborhood encouraging people to contact them if noise level becomes a problem. PRIOR ACTION/REVIEW (Council, Boards or Commissions) None FISCAL INFORMATION None Prepared By: Betty Williams Director of Management and Public Information Robert Hanna, Assistant to the City Council Attachment: Letter from RJ Avery CreMure~ ~ A,,v~refl~ 605 Texas; Denton, Tx ?6209 To the Mayor and Members of the City Council: Creatures for Awareness are a newly formed 501c non-profit organization, founded with the intentions of bdnging back a charitable college aimed festival to the area. We have chosen to benefit six local charities which are as follows: Denton County Friends of the Family, Denton County Big Brothers and Big Sisters, AIDS Services of North Texas, Visiting Nurses Association, Community Food Bank, and the Nelson Center. We are having the event on Saturday March 27~h, 2004, at the North Texas Fairgrounds between the hours of noon and 10pm. There will be four stages with live music and two performance tents. We are approaching City Council to grant us an exception to the city's noise ordinance. If an exception cannot be granted we would like to apply for a vadance from the regular level of 65dba to 75dba. In order to make this event as hospitable to the surrounding residents and less of a strain on the Denton Police Department, wa are planning to flyer the surrounding residential areas with information about the event, and contact information if the sound becomes a problem at anytime dudng the event. Any inquiries about the festival can be made to RJ Avery at 214-682-0598. Thanks for your consideration. RJ A~ry -/'~'" .... Founder Creatures for Awareness AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET March 2, 2004 Materials Management Kathy DuBose ~% Questions concerning this acquisition may be directed to Jim Coulter 349-7194 SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding an annual contract for the purchase of water treatment chemicals; providing for the expenditure of funds therefore; and providing an effective date (Bid 3131-Water Treatment Chemicals awarded to the lowest responsible bidder in the total estimated amount of $500,000). BID INFORMATION This bid is for the annual contract to supply water treatment chemicals for the water production and wastewater treatment process. The chemicals are delivered in bulk quantities to onsite storage facilities. RECOMMENDATION We recommend this bid be awarded to the lowest responsible bidder for each item as listed below: Item Description Price Vendor 1 LIQUID CHLORINE, NSF 60 CERTIFIED $0.236/LB DPC INDUSTRIES (ONE TON) INC. 2 LIQUID CHLORINE, NSF 60 CERTIFIED $0.2375/LB DPC INDUSTRIES (BULK) INC. CHLORINE 150# CYLINDER HARCROS 3 $0.62/LB NSF 60 CERTIFIED CHEMICALS INC $0.0475/LB 4 SODIUM HYPOCHLORITE UNIVAR USA 5 LIQUID OXYGEN $0.0386/LB AIR LIQUIDE 6 LIQUID FERRIC SULFATE *NOT NSF 60 CERTIFIED AWARDED 7 FLUROSILICIC ACID, $0.075/LB HARCROS NSF 60 CERTIFIED CHEMICALS INC 8 LIQUID CAUSTIC SODA $0.095/LB UNIVAR USA NSF 60 CERTIFIED 9 POTASSIUM PERMANGANATE, NSF 60 $1.349/LB CARUS CHEMICAL CERTIFIED CO LAROCHE 10 ANHYDROUS, NSF 60 CERTIFIED $0.36/LB INDUSTIRES INC NALCO 11 CATIONIC POLYMER, NSF 60 CERTIFIED $0.3275/LB INC. *City renewing with current vendor Agenda Information Sheet March 2, 2004 Page 2 RECOMMENDATION (CONTINUED) The low bids on Items 1, 2, 5, and 9 did not meet specifications; therefore the contract was awarded to the next lowest bidder meeting specification for each item. PRINCIPAL PLACE OF BUSINESS: DPC Cleburne, TX Harcros Chemicals Inc. Dallas, TX LaRoche Industries, Inc. Atlanta, GA Carus Nalco Univar USA Peru, IL Naperville, IL Dallas, TX ESTIMATED SCHEDULE OF PROJECT: Air Liquide Southampton, PA This is an annual contract with prices, terms, and conditions remaining in effect through March 2, 2005. Delivery of individual chemicals varies from 3 days to 2 weeks and will be ordered as needed. FISCAL INFORMATION: Funding for these water treatment chemicals will come from account 630100.6334. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Tabulation Sheet 1-AlS-Bid 3131 ~ ~ o~ o ~ ::::::::::::::::::::::::::::: iiiiiiiiiiiiiiiiiiii U ~ ' 0 u u E ~J 0 ..O Z d ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE PURCHASE OF WATER TREATMENT CHEMICALS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 3131-WATER TREATMENT CHEMICALS AWARDED TO THE LOWEST RESPONSIBLE BIDDER IN THE TOTAL ESTIMATED AMOUNT OF $500,000). WHEREAS, the City has solicited, received and tabulated competitive bids for the purchase of necessary materials, equipment, supplies or services in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described bids are the lowest responsible bids for the materials, equipment, supplies or services as shown in the "Bid Proposals" submitted therefore; 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 i. That the numbered items in the following numbered bids for materials, equipment, supplies, or services, shown in the "Bid Proposals" on file in the office of Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: BID ITEM VENDOR AMOUNT 3131 1,2 DPC Industries, inc. Exhibit "A" 3131 3,7 Harcros Chemicals, inc. Exhibit "A" 3131 4,8 Univar USA Exhibit "A" 3131 5 Air Liquide Exhibit "A" 3131 9 Cams Chemical Co. Exhibit "A" 3131 10 La Roche Industries, Inc. Exhibit "A" 3131 11 Nalco Company Exhibit "A" SECTION 2. That by the acceptance and approval of the above numbered 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 3. That should the City and persons submitting approved and accepted items and of the submitted bids wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Bid Proposal and related documents herein approved and accepted. SECTION 4. That by the acceptance and approval of the above numbered items of the submitted bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this __ day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-Bid 3131 Exhibit A Item Description Price Vendor 1 LIQUID CHLORINE, NSF 60 CERTIFIED $0.236/LB DPC INDUSTRIES (ONE TON) INC. 2 LIQUID CHLORINE, NSF 60 CERTIFIED $0.2375/LB DPC INDUSTRIES (BULK) INC. CHLORINE 150# CYLINDER HARCROS 3 $0.62/LB NSF 60 CERTIFIED CHEMICALS INC $0.0475/LB 4 SODIUM HYPOCHLORITE UNIVAR USA 5 LIQUID OXYGEN $0.0386/LB AIR LIQUIDE *NOT 6 LIQUID FERRIC SULFATE NSF 60 CERTIFIED AWARDED 7 FLUROSILICIC ACID, $0.075/LB HARCROS NSF 60 CERTIFIED CHEMICALS INC 8 LIQUID CAUSTIC SODA $0.095/LB UNIVAR USA NSF 60 CERTIFIED 9 POTASSIUM PERMANGANATE, NSF 60 $1.349/LB CARUS CHEMICAL CERTIFIED CO LAROCHE 10 ANHYDROUS, NSF 60 CERTIFIED $0.36/LB INDUSTIRES INC 11 CATIONIC POLYMER, NSF 60 CERTIFIED $0.3275/LB NALCO INC. AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET March 2, 2004 Materials Management Kathy DuBose ~G Questions concerning this acquisition may be directed to Vance Kemler 349-8044 SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding an annual contract for long-term rental of heavy equipment for the Solid Waste Department; providing for the expenditure of funds therefore; and providing an effective date (Bid 3132-Long Term Rental of Heavy Equipment awarded to T-K-O Equipment Co. in the estimated amount of $66,500. BID INFORMATION This bid is for long-term equipment rental for the Solid Waste Department. The two pieces of equipment, an excavator and an off-road truck, will be used at the City of Denton landfill to assist with excavation and relocation of soil to the disposal sites. The alternate off-road truck bid was selected because of the lower cost for a comparable model. The equipment can be rented for a time period of up to one year but the rental period may be less. RECOMMENDATION We recommend award of this bid to T-K-O Equipment Co. in the estimated amount of $66,500. PRINCIPAL PLACE OF BUSINESS T-K-O Equipment Co. Irving, TX ESTIMATED SCHEDULE OF PROJECT Delivery of equipment can be made in one day from receipt of the order. The rental rate will be in effect from March 2, 2004 through March 2, 2005. FISCAL INFORMATION This item will be funded from account 660300.7802. Agenda Information Sheet March 2, 2004 Page 2 Attachment 1: Tabulation Sheet 1-AlS-Bid 3132 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent 0 0 0 0 L~ 0 0 0 0 0 L~ OD 0 0 0 0 L~ 0 0 0 0 OD 0 0 0 0 L~ 0 0 L~ 0 0 0 0 I',. 0 0 0 0 OD 0 0 It) It) It) It) It) It) It) ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE LONG-TERM RENTAL OF HEAVY EQUIPMENT FOR THE SOLID WASTE DEPARTMENT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 3132-LONG TERM RENTAL OF HEAVY EQUIPMENT AWARDED TO T-K-O EQUIPMENT CO. IN THE ESTIMATED AMOUNT OF $66,500. WHEREAS, the City has solicited, received and tabulated competitive bids for the purchase of necessary materials, equipmem, supplies or services in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described bids are the lowest responsible bids for the materials, equipmem, supplies or services as shown in the "Bid Proposals" submitted therefore; 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, equipmem, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the numbered items 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, are hereby accepted and approved as being the lowest responsible bids for such items: BID ITEM NUMBER NO VENDOR AMOUNT 3132 1,2 T-K-O Equipmem Co. Exhibit A SECTION 2. That by the acceptance and approval of the above numbered 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, quamities and for the specified sums comained in the Bid Invitations, Bid Proposals, and related documents. SECTION 3. That should the City and persons submitting approved and accepted items and of the submitted bids wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager or his designated represemative is hereby authorized to execute the written contract and to extend the contract as determined to be advamageous to the City of DeNon which shall be on file in the office of the Purchasing Agem; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quamities and specified sums comained in the Bid Proposal and related documems herein approved and accepted. SECTION 4. That by the acceptance and approval of the above numbered items of the submitted bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this __ day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID313 2 Exhibit A Bid # 3132 Date: 2/3/04 Long - Term Rental of Heavy Equipment Principle Place of Business: Rental rate after Rate initial 7 month lA Per Mo. rental, up to 1 year. Truck, (Off Road), Cat D250 or 7 3 Mos. equivalent. Make/Model Bid initial ~ mont~ 3A Shipment T-K-O Equipment Irving, TX $4,500.00 $5,000.00 1 Day AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET March 2, 2004 Materials Management Kathy DuBose ~ Questions concerning this acquisition may be directed to Charles Fiedler 349-8948 SUBJECT Consider adoption of an Ordinance of the City of DeNon approving a change order for a professional services agreement between the City of Denton, Texas and Innovative Transportation Solutions, Inc. dated March 5, 2002; retroactively extending said agreement, and authorizing and ratifying the expenditure of funds for work previously performed; authorizing the City Manager or his designee to execute the change order on behalf of the City and expend funds authorized by the change order; and providing for an effective date. RFP INFORMATION The original Professional Services AgreemeN approved by Council on March 5, 2002, services for the ideNification, developmeN, and implemeNation of major transportation and infrastructure projects including a critical timeline for each ideNified project. Work Directive Change Order One coNinues this service through September 30, 2004 and adds support services for our Regional Mobility Coordinator. This contract has supported our regional transportation efforts that have resulted in funding for FM 2181, FM 2499, join developmeN of the Loop 288 design plans, IH35 ramp reversals, and the western Loop analysis, to ideNify a few. CoNinuation of their efforts will facilitate the ongoing discussions regarding the IH35 Major Investment Study that is the precursor to the reconstruction of IH35. They are currently facilitating our coordination with the upcoming CouNy Bond Program that will have a majority of the funds dedicated to transportation. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) Council approved the original coNract for professional services on March 5, 2002, Ordinance No. 2002-062. RECOMMENDATION We recommend Change Order One be approved in the amouN of $117,000. Change Order One brings the contract total to an amount not to exceed $257,000. PRINCIPAL PLACE OF BUSINESS Innovative Transportation Solutions, Inc. Farmers Branch, TX Agenda Information Sheet March 2, 2004 Page 2 ESTIMATED SCHEDULE OF PROJECT This change order authorizes services to be performed through September 30, 2004. FISCAL INFORMATION This item will be funded from account 35 tOOt .7850. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent 1-AIS-PSA 2789 Change Order One ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON APPROVING A CHANGE ORDER FOR A PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND iNNOVATiVE TRANSPORTATION SOLUTIONS, INC. DATED MARCH 5, 2002; RETROACTIVELY EXTENDING SAID AGREEMENT, AND AUTHORIZING AND RATIFYING THE EXPENDITURE OF FUNDS FOR WORK PREVIOUSLY PERFORMED; AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTIVE THE CHANGE ORDER ON BEHALF OF THE CITY AND EXPEND FUNDS AUTHORIZED BY THE CHANGE ORDER; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on March 5, 2002 the City entered into a Professional Services Agreement with Innovative Transportation Solutions, Inc. (the "Consultant") to provide transportation consultation services (the "Contract"); and WHEREAS, the change order to the Contract attached hereto and made a part hereof by reference as Exhibit "A" (the "Change Order") is necessary to add an additional task, to retroactively extend the Contract from October 1, 2002 through September 30, 2004, and to authorize and ratify the expenditure of funds previously made; and WHEREAS, the City Council finds that the Change Order serves valid public and municipal purposes and is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this ordinance are incorporated by reference into the body of this ordinance as if fully set forth herein. SECTION 2. The Change Order is approved retroactively extending the Contract from October 1, 2002 through September 30, 2004. The City Manager, or his designee, is hereby authorized to execute the Change Order on behalf of the City and to make the expenditure of funds provided for by the Change Order. All prior payments made to the Consultant and all pending invoices totally $117,000.00 as provided for in the Change Order are authorized and ratified. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of .,2004. EULiNE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 2-ORD-PSA 2789 Page 2 EXHIBIT A WORK DIRECTIVE CHANGE NUMBER ONE TO THE PROFESSIONAL SERVICES AGREEMENT WITH INNOVATIVE TRANSPORTATION SOLUTIONS, INC. PSA2789 APPROVED BY ORDINANCE 2002-062 ON MARCH 5, 2002 This Work Directive Change (WDC) is made this Day of March, 2004, between the City of Denton ("City") and Innovative Transportation Solutions, Inc. ("Consultant") to the above referenced Agreement (the "Contract") in the following respects: WORK DIRECTIVE CHANGE DESCRIPTION: Owner and Consultant acknowledge the following addition, deletion, or revision in the Scope of Work to be performed: The Contract originally was effective through September 30, 2002 and authorized a maximum expenditure of $70,000.00. However, the City continued to use the services of the Consultant after that date for a total expenditure to date in the amount of $157,000.00 for invoices through November, 2003, with additional invoices from the Consultant through February, 2004 in the amount of $30,000.00, for a total amount through the effective date of this WDC of $187,000.00 or $117,000.00 above the amount authorized by the Contract. This WDC also authorizes the payment of $117,000.00 for services rendered and ratifies all payments previously made and retroactively extends the Contract from October 1, 2002 through September 30, 2004. In addition, the Scope of Services, included as Exhibit A to the Contract, are revised to include an additional Task 10. Task 10 will include the requirement for Innovative Transportation Services, Inc. to provide staff and logistical support to our Regional Mobility effort in the amount of approximately eighty man-hours per month for no additional monthly compensation. The total expenditures under the Contract as amended by this WDC will not exceed $70,000.00 for services performed from March 1, 2004 through September 30, 2004. Owner hereby directs the Consultant to proceed as follows: Effective March 1, 2004 the Consultant will initiate the referenced support of our Regional Mobility Coordinator. The parties to the Contract formalize this WDC as Change Order One that changes the Scope of Work. It extends the term of the Contract through September 30, 2004. In all other respects, the Contract remains the same. CITY OF DENTON, TEXAS BY;. Michael A. Conduff City Manager Date: Page 1 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: INNOVATIVE TRANSPORTATION SOLUTIONS, INC. BY: JOHN POLSTER Title: Date: Page 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 2, 2004 Materials Management Kathy DuBose ~ Questions concerning this acquisition may be directed to Janet Simpson 349-8271 SUBJECT Consider adoption of an Ordinance of the City of DeNon, Texas approving an Agreemem between the City of Denton and the North Texas Umpire Association; approving the expenditure of funds for the purchase of certified softball officiating services available from only one source in accordance with the provisions of the state law exempting such purchases from the requiremems of competitive bids; and providing an effective date (File 3145-Agreemem with North Texas Umpire Association in the amoum of $40 per game for an estimated award of $44,000). FILE INFORMATION The Agreemem between the City of Demon and the North Texas Umpire Association is to supply officiating services for the Adult Slow Pitch spring, summer and fall seasons for men, co- ed, and women's ASA softball games. Each year the Parks and Recreation Departmem comacts the Amateur Softball Association (ASA) District Commissioner to locate an ASA Umpire's Association that would be available to umpire adult softball league games in Demon. This year and in previous years, the North Texas Umpire Association has been the only association (sole source) available for officiating sanctioned adult softball league play in Demon. The North Texas Umpire Association will officiate 1,100 adult softball games for the Parks and Recreation Departmem during the 2003-04 fiscal year. The Association will be paid $40 per game and will provide two ASA umpires and one scorekeeper per game. PRIOR ACTION/REVIEW Each fiscal year, beginning in 2000, the City Council has approved a comract between the City of Denton and the North Texas Umpire Association based on the fact that they were the only association (sole source) available for officiating sanctioned adult softball league play in DeNon. RECOMMENDATION We recommend this Agreemem be approved in the amoum of $40 per game in the estimated total amount of $44,000. Agenda Information Sheet March 2, 2004 Page 2 PRINCIPAL PLACE OF BUSINESS North Texas Umpire Association Denton, TX ESTIMATED SCHEDULE OF PROJECT This Agreement will remain in effect through December 15, 2004. FISCAL INFORMATION This Agreement will be funded from Parks and Recreation account 411170.7868. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Letter From ASA District Commissioner 1-AlS-File 3145 Attachment 1 TEDDY GIBBS Area VII Vice-President JanLtary 13, 2004 Ken Washington Athletic Manager Denton Parks & Recreation 321 E,McKinney Denton, Texas 76201 Ken: This letter is to inform the city of Denton that the only umpire association registered with the Amateur Softball Association in the city of Denton or immediate area is the North Texas Umpire Association. This association is in good standing at all levels of ASA and it would be acceptable to allow their organization to service your softball leagues. If you have any other questions, please feel free to contact me. Sincerely, Teddy Gibbs District 13 ASA Commissioner TEXAS AMATEUR SOFTBALL ASSOCIATION P.O. BOX 299002 · LEWISVILLE, TEXAS 75029 * BUS. (972) 219-3554 · HOME (972)221-0619 S:\Our Documents\Ordinances\04\North Texas Umpire Assoc Ordinance.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE NORTH TEXAS UMPIRE ASSOCIATION; APPROVING THE EXPENDITURE OF FUNDS FOR THE PURCHASE OF CERTIFIED SOFTBALL OFFICIATING SERVICES AVAILABLE FROM ONLY ONE SOURCE IN ACCORDANCE WITH THE PROVISIONS OF STATE LAW EXEMPTING SUCH PURCHASES FROM REQUIREMENTS OF COMPETITIVE BIDS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including items that are only available from one source because of patents, copyrights, secret processes or natural monopolies, films, manuscripts or books, electricity, gas, water, and other utility purchases, captive replacement parts or components for equipment, and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials and need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to execute an agreement for certified softball officiating services between the City of Denton and the North Texas Umpire Association in substantially the form of the agreement which is attached to and made a part of this ordinance for all purposes. · SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ., 2004. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINEBROCK, MAYOR BY: APPROVED AS TO LEGAL FOgRpM: BY: ' - .~c.~--~ / / AGREEMENT BETWEEN CITY OF DENTON PARKS AND RECREATION DEPARTMENT AND NORTH TEXAS UMPIRE ASSOCIATION The City Of Denton Parks and Recreation Department (hereinafter "PARD") of Denton, Texas and the North Texas Umpire Association (hereinafter "NTUA") enter into the following Agreement: 1. CONTEST The NTUA agrees to officiate the 2004 Adult Slow-Pitch Seasons for Men, Women and Coed ASA softball games that are scheduled by PARD at North Lakes Softball Complex, Denton, Texas. B. The start date is March 2004 and runs through November 2004. PARD will provide NTUA with a schedule of games depicting leagues and their field assignments for the season. NTUA will receive this information at least two (2) weeks before the season begins. PARD will also provide NTUA with the league's current rules and regulations that are modified from the current Amateur Softball Association (ASA) rules. NTUA will schedule officials so that the ability level of the official will match or exceed the level of league play on each field. NTUA will provide up to two (2) umpires and one (1) scorekeeper for each game. 1) Optimally, each field will have two (2) umpires, but when that is not possible, NTUA will insure that the official working alone will be a qualified umpire. 2) The Umpire-In~Charge (UIC) scheduled for each night will ensure that the officials assigned to each field are capable of working that particular level of play. 2. PAYMENT A. In consideration of such services, the PARD will pay NTUA a total of $40.00 per game. Payment Determination Both parties will determine the payment to be the calculated number of games scheduled for each particular league times the rate of $40.00 per game. C. Schedule of Payment 1) initial Payment PARD wilt make an initial payment in the amount of one-half (1/2)of the total expected amount for estimated services no later than 7 days before the first game of each season. 2) Finaf Payment PARD will make the final estimated amount owed to the NTUA on or before 14 days after the first scheduled game. AGREEMENT BETWEEN CITY OF DENTON PARKS AND RECREATION DEPARTMENT AND NORTH TEXAS UMPIRE ASSOCIATION D. If NTUA provides only one official for a game, then PARD will be credited $7.00 for each game that has one official working alone. This credit can be used during the current season or dudng the next season. 3. OFFICIALS NTUA represents officials that are, or will be by the date of the contest, a duly registered umpire who is a member in good standing of the ASA. 4. INTERPRETATION The Constitution, By-laws and rules and regulations of ASA and of NTUA are considered a part of this agreement and shall govern, except as modified by this Agreement, anydisputes arising out of this Agreement. Both parties to the Agreement agree to be so bound. If PARD offers a "coaches meeting", NTUA recommends that the executive committee be notified of the date, time, and place of the coaches meeting. We would like to explain new rules, game procedures to the new coaches, and discuss how on-field disagreements will be handled. 5. VOIDING OF AGREEMENT This agreement shall become null and void upon the demise of either organization. This agreement may be, canceled at any time by the mutual written consent of both parties upon 30 days written notice. This agreement is void if either party cannot comply with its terms. 6. NOTIFICATION/SCHEDULE CHANGES All notifications concerning the provisions of the document or of schedule changes shall be in writing to the below address. All game changes will be given to NTUA Assignor 24 hours prior to the change. If notification is not given in this timely manner, an additional administration fee of $3.00 per game will be charged to PARD. A. if initial notification is by phone, then a written confirmation shall thereafter be sent within seven (7) days. 7. IN.DEMNIFICATION NTUA agrees to indemnify, defend and hold harmless, PARD, the CITY, and their employees and officers from and against any and all claims or actions for injuries or damages, including death, adsing out of NTUA's performance under this agreement, including the negligent acts or omissions of the umpires provided for under this agreement and any claims or actions made or brought by an umpire. This agreement is executed to be effective as of 3 115-'-10~ , 2004 by authorized representatives of the parties hereto as set forth below. AGREEMENT BETWEEN CITY OF DENTON PARKS AND RECREATION DEPARTMENT AND NORTH TEXAS UMPIRE ASSOCIATION City of Denton, Texas Date Michael A. Conduff, City Manager North Texas Umpire Association Name ~' ~ ' ' Title Nam~ Title City of Denton Parks and Recreation Department Ken Washington 349-8523 349-8384 fax North Texas Umpire Association 524 N Locust, Suite A Demon, TX 76201 898-1561 380-9235 fax AGENDA INFORMATION SHEET AGENDA DATE: March 2, 2004 DEPARTMENT: ACM: Electric Utility Howard Martin, 349-8232 SUBJECT Consider adoption of an ordinance of the City Council of the City of DeNon, Texas authorizing the City Manager to execute a Professional Services Agreement with R. J. Covington consulting, LLC for consulting services relating to Task Order No. 04-A, regarding the Texas Nodal Team Process to Redesign the Texas Electrical Market relating to the City's position on issues and the interests of Denton Municipal Electric; authorizing the expenditure of funds therefor; providing for retroactive ratification and approval thereof; and providing an effective date. BACKGROUND The Texas Legislature mandated a Texas wholesale electric market in which any generation resource can sell any amoum of energy it desires to any load within Texas, regardless of the ability of the existing electric transmission system to handle the resulting energy flows on that transmission system. This inevitably results in periods during which specific transmission lines are loaded beyond their capacity to safety transport the energy, a condition referred to as transmission congestion. When this occurs, ERCOT is tasked by the TPUC with idemifying new transmission projects that need to be constructed to relieve the congestion and local Transmission/Distribution Service Providers (TDSPs) are required to build the idemified projects and recover those costs through filing with the TPUC for a Transmission Cost of Service (TCOS) rate that is uplifted to all customers in ERCOT through a uniform charge assessed on a load ratio share. There are three major flaws in this system. The first is that generators no longer have any incentive to build new facilities in locations where adequate transmission to support their project already exists because they do not have to pay for the cost of transmission upgrades caused by their project. Left unchecked, this process will ultimately result in Texas electric customers paying for an extremely expensive transmission system, raising the overall cost of electric energy in the state. The second is that completion of new transmission projects to relieve transmission congestion usually takes several years, in the interim some method must be used to ration the limited amount of transmission capacity among those desiring to use it. The third is that there are some areas where it will never be possible to build the additional transmission projects needed to relieve the congestion. The DFW metropolitan area is an example of such an area. It is a rapidly growing area with a cominuously increasing need for energy. The ability to construct generating plants within the DFW area is limited by both lack of available sites and air quality issues. In addition, it is virtually impossible, with any technology known today, to build high voltage transmission lines and their associated support facilities (substations, etc.) into the heart of cities such as Dallas or Fort Worth. However, that is what is required in order to relieve the transmission congestion that exists today in within those areas and allow the importation of energy from new generation being built in other areas of Texas into DFW. In order to implement the Legislative mandates, the various market stakeholders in ERCOT developed a method to ration transmission capacity in constrained areas that was put into effect in 2001. That method utilizes a two-step approach for dealing with transmission congestion. The process identifies Commercially Significant Constraints (CSCs) between areas of the ERCOT system referred to as Congestion Management Zones. An example of a CSC would be a transmission line from the Houston area, which has excess low cost generation, to the DFW area, which has local generating units whose energy is more expensive than the cost of energy from the Houston units. The key words in this concept are "commercially significant". A CSC is designed largely to address economic market issues, in other words, the ability to purchase the most cost effective energy to serve a given load, regardless of the location of the source of that energy. When a CSC becomes overloaded, ERCOT pays generators in the zone on one end of the overloaded CSC to reduce their output while simultaneously paying generators in the zone on the other side of the CSC to increase their output until the overload is relieved. The cost of making these payments is then allocated to the entities whose energy purchase schedules caused the original congestion. However, not all transmission congestion occurs on CSC's. There is often transmission congestion on transmission lines within a Congestion Management Zone. This "local congestion" is usually caused by transmission system configurations that no longer adequately support the electric load growth in an area rather than by wholesale energy market activity. "Local congestion" must also be relieved by raising and lowering generation of specified generating units and these generators are also both paid for that service. Under the present system, the cost of relieving "local congestion" is uplifted to all loads in ERCOT on a load ration share basis, in the same manner as TCOS. The DFW area "North Zone" experiences a significant amount of "local congestion" for which there is little hope of relief from construction of new transmission or new generation. Close to $72 million of "local congestion" costs have been experienced in the DFW area this year alone. The TPUC now believes that a different system of transmission management should be implemented in Texas. Some economists believe that this different type of system will provide f incentives for generators to locate new projects in areas that do not cause transmission congestion. The system, referred to as Locational Marginal Pricing (LMP), is an extremely complex nodal pricing system that will be very expensive to implement. Some estimates have been as high as $300 million for all parts of the Texas market (ERCOT and stakeholders) to implement such a system. The portion of this cost required to change the ERCOT system will be passed through to all loads in ERCOT, including the customers of DME. The success of this system in areas where it has been implemented has been questionable, especially when its costs are considered. However, despite consistent comments by a number of wholesale market stakeholders and consumers representatives questioning the wisdom of implementing such a system and the speed with which the TPUC is requiring the ERCOT system to be designed, the TPUC is pressing forward on a very aggressive schedule. Implememation of the LMP system design being developed by ERCOT stakeholders will result in the high DFW local congestion costs being allocated to only electric customers in a northern zone in which the only metropolitan areas are DFW, Waco, and Wichita Falls. As discussed above, DFW has almost no way to economically remove its local transmission congestion costs absent some major, unforeseen technological breakthrough. Imposition of an LMP type system in ERCOT will made the DFW a much higher cost energy area than other parts of Texas, with the obvious negative impacts on DFW economic health and growth potential. The overall cost to DME customers of implementing an LMP type system combined with potentially large negative impact on the DFW area economy are of grave concern to DME. Because of the major implications for Demon and the DFW area of this design process, DME, in partnership with Garland Power and Light and Greenville Electric Utility, has been actively participating in the design process and utilizing all available avenues to force the TPUC to perform a proper cost/benefit analysis prior to final adoption of an LMP type system for Texas. Active participation in the design process is necessary in order to do everything possible to see that, in the event an LMP type system is implemented, it that takes into consideration the needs of DME's customers (such as the ability to schedule power from the Gibbons Creek plato to Denton without paying large transmission costs). Such active participation has required having represematives of DME attend day long Texas Nodal Team (TNT) meetings in Austin as often as two or three times a week since the process began in August 2003. The pace of the process has now increased to daily meetings, with more than one meeting occurring simultaneously on some days. The Covington firm, which is located in Austin, is representing DME at these Austin market design meetings more cost effectively than having DME staff commute to Austin. Furthermore, DME does not have sufficient staff to attend all these meetings and maintain day- to-day responsibilities. It is also time to begin an effort to obtain legislative support for DFW's needs in this market design. Although, DME or other City representatives will need to be more directly involved in legislative contacts, the Covington firm will be able to apply their first hand experience with the design process to assist in preparing educational and position papers for the Legislators and their staffs. In August of 2003, the PUB and City Council approved Task Order 03-H for $74,500 to fund this work. Those funds have now been expended. This new Task Order will allow DME to maintain its representation in this critical process. OPTIONS None RECOMMENDATIONS DME recommends approval of' Task Order 04-A with R. J. Covington Consulting, LLC for support in the ongoing Texas Public Utility Commission (TPUC)/Electric Reliability Council of` Texas (ERCOT) electric wholesale market design project. PRIOR ACTION/REVIEW (Council, Boards, Commission) The Public Utilities Board considered Task Order 04-A at its February 23, 2004 meeting and voted to approve it by a vote of` 7 to 0 with 7 members present. FISCAL INFORMATION Task Order 04-A with R. J. Covington Consulting, LLC not to exceed not to exceed $100,000. EXHIBITS 1. Ordinance 2. Contract 3. Task Order 4. Public Utilities Board Meeting Minutes Respectfully submitted: Sharon Mays Director of Electric Utility ORDINANCE NO. 2004- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A .PROFESSIONAL SERVICES AGREEMENT WITH R. J. COVINGTON' CONSULTING, LLC FOR CONSULTING SERVICES RELATING TO TASK ORDER NO. 04-A, REGARDiNG THE TEXAS NODAL TEAM PROCESS TO REDESIGN THE TEXAS ELECTRICAL MARKET RELATING TO THE CITY'S POSITION ON ISSUES AND THE INTERESTS OF DENTON MUNICIPAL ELECTRIC; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; PROVDING FOR RETROACTWE RATIFICATION AND APPROVAL THEREOF; AND PROVDING AN EFFECTIVE DATE. WHEREAS, the City Council deems it in the public interest to engage the finn of R. J. Covington Consulting, LLC of Austin, Texas ("Covington"), to provide professional consulting services to the City relating to Task Order No. 04-A; which includes, without limitation, services respecting the Texas nodal team process of redesigning the Texas electrical market, and to represent the City and its interests in the municipal electric utility market; and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the above-described specialized professional 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, Covington has represented DME continuously and ably over the past eight years, and has proven to be a valuable, affordable, competent, dependable professional resource that has expertise in and is well-acquainted with the electric financial and regulatory framework of Denton Municipal Electric ("DME"). Covington and his staff are familiar with the characteristics and operations of DME, and have begun services on this engagement at the specific instance and request of DME on the 1st day of February, 2004; and WHEREAS, the City Council has provided in the City Budget for the appropriation of fimds to be used for the purchase of the professional 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 R. J. Covington Consulting, LLC of Austin, Texas, for professional consulting services relating to Task Order No. 04-A, to the City and to Denton Municipal EXHIBIT 1 Electric, in substantially the form of the Professional Services Agreement attached hereto and incorporated herewith by reference as Exhibit "A." SECTION 2: That the award of this Agreement by the City is on the basis of the demonstrated competence, knowledge, and qualifications of Covington and the ability of Covington to perform the professional services needed by the City for a fair and reasonable price. SECTION 3: That the expenditure of fimds as provided in the attached Professional Services Agreement is hereby authorized. SECTION4: That this ordinance shall be retroactively approved, confirmed, and ratified effective as of February 1, 2004. PASSED AND APPROVED this the day of March, 2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY S:\Our Documents\Orclinances~l)4LR J Covington Consulting LLC-DME-Ord Aprv TO 4-A-2004.doc 2 STATE OF TEXAS COUNTY OF DENTON PROFESSIONAL SERVICES AGREEMENT FOR CONSULTING SERVICES PERTAINING TO DENTON MUNICIPAL ELECTRIC THIS AGREEMENT is made and entered into as of the 1st day of February, 2004, by and between the City of Denton, a Texas Municipal Corporation, with its principal office at 215 East McKinney Street, Denton, Texas 76201 ("CITY"); and R. J. COVINGTON CONSULTING, LLC, A Texas Limited Liability Corporation, with its principal office at 11044 Research Blvd., Suite A- 325, Austin, Texas 78759, hereafter "COVINGTON"; acting herein by and through their duly authorized representatives. WITNESSETH, that in consideration of the covenants, promises and agreements herein contained, the CITY and COVINGTON do hereby AGREE as follows: ARTICI ,E 1 EMPLOYMENT OF CONSULTANT The CITY hereby contracts with COVINGTON, as an independent contractor, and COVINGTON hereby agrees to perform the services herein in connection with the Scope of Services as stated in the Articles to follow, with diligence and in accordance with the highest professional standards customarily obtained for such services in the State of Texas. A R TICI ~E Il SCOPE OF SERVICES A. COVINGTON shall provide to the CITY professional consulting services pertaining to CITY'S position in addressing issues associated with the Texas Nodal Team ("TNT") process to redesign the Texas electrical market. The TNT process is a continuation of Project 26736 "Rulemaking Proceeding on Wholesale Market Design Issues in the Electric Reliability Council of Texas." This process is of particular importance to DME's ratepayers due to the potential significant shifting of costs within ERCOT as a result of the proposed market design. COVINGTON will assist in representing DME at the Public Utility Commission of Texas ("PUC") and the Electric Reliability Council of Texas CERCOT") to develop and present the City's position on the proposed nodal market design. The scope of services also includes continuing participation at the PUC in Project 26736 and participation at ERCOT on TNT committees and task forces developing rules for implementing the nodal system. COVINGTON will also assist in developing materials for lobbying the Texas Legislature to explain the impact on DME and the DFW area of implementing a nodal market design. COVINGTON agrees to perform those services and tasks more particularly and specifically described in Task Order No. 04-A attached hereto and incorporated herewith by reference. EXHIBIT 2 B. To consult with the City Manager, Assistant City Manager/Utilities, the Director of Electric Utilities, the Utility Attorney, and any other designated administrative personnel regarding any and all aspects of the services to be performed pursuant to this Agreement. ARIICLEJIi PERIOD OF SERVICE This Agreement shall become effective, ratified, confm'ned and approved as of the l~t day of February, 2004. The termination date of this Agreement shall be upon the earliest to occur of the following events: completion of the work described herein and in the attached Task Order No. 04-A; or upon the depletion and exhaustion of the $100,000 not to exceed amount provided for herein; or upon fi~een (15) day's written notice to terminate, issued by the Director of Electric Utilities, DME. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in this Agreement. COVINGTON shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the CITY, acting through its Director of Electric Utilities. AILTICLE_IX COMPENSATION A. COMPENSATION TERMS: "Direct Non-Labor Expense" is defined as that expense for any assignment incurred hereunder by COVINGTON for supplies, long-distance telephone, telecopier, reproduction expense, overnight courier, photocopy expense, transportation, travel, communications, subsistence and lodging away from home and similar incidental expenses reasonably incurred in connection with that assignment. B. BILL1NG AND PAYMENT: 1. For and in consideration of the professional services to be performed by COVINGTON herein, the CITY agrees to pay COVINGTON, a total fee, including reimbursement for direct non-labor expense, not to exceed $100,000 for those services described in Task Order No. 04- A. 2. The fee for the services described in this Agreement to be performed by COVINGTON are to be billed the rates as set forth in Exhibit "A" attached hereto and incorporated herewith by reference. Billing shall be reported in minimum one-quarter (1/4) hour increments. 3. Payments to COVINGTON will be made by the CITY on the basis of detailed monthly statements rendered to the CITY through its Director of Electric Utilities. The fee bills as submitted, shall be allowed and approved by the Director of Electric Utilities. However, under no circun~stances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. 4. Nothing contained in this Article shall require the CITY to pay for any work which is unsatisfactory as reasonably determined by the City Manager or the Director of Electric Utilities, or which is not submitted in compliance with the terms of this Agreement. The City shall not be required to make any payments to COVINGTON when COVINGTON is in default under this Agreement. 5. It is specifically understood and agreed that COVINGTON shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the CITY for any charge, expense or reimbursement above the maximum not-to-exceed fee as stated, without first having obtained written authorization from the CITY. C. PAYMENT If the CITY fails to make payments due COVINGTON for services and expenses within forty (40) days after receipt of COVINGTON'S undisputed statement thereof, the amounts due COVINGTON will be increased by the rate of one percent (1%) per month from the said forty (40th) day, and in addition, COVINGTON may, after giving ten (10) days' written notice to the CITY, suspend services under this Agreement until COVINGTON has been paid in full all amounts due for services, expenses and charges provided. However, nothing herein shall require the CITY to pay the late charge of one percent (1%) set forth herein if the CITY reasonably determines that the work of COVINGTON is unsatisfactory, in accordance with this Article IV, Compensation, and the CITY notifies COVINGTON in writing of any such defect. ART¥CI ,F, V OBSERVATION AND REVIEW OF THE WORK COVINGTON. will exercise reasonable care and due diligence in discovering and promptly reporting to the CITY any defects or deficiencies in his work or the work of any subconsultants performed hereunder. ARIIGL.EZ~ OWNERSHIP OF DOCUMENTS All documents, analyses and other data prepared by COVINGTON under this Agreement ("Work Products") are instruments of service and are and shall remain the property of CITY. COVINGTON shall have the right to make and retain copies and use all Work Products; provided, however, the use shall be limited to the intended use for which the services and Work Products are provided under this Agreement. COVINGTON may use and may copyright certain non-sensitive Work Products as property of COVINGTON; provided that prior written approval is obtained from CITY, whose approval shall not be unreasonably withheld, and providing that copywriting wilI not restrict CITY'S right to retain or make copies of the Work Products for its information, reference and use on the Project or services under the Agreement. The Work Products shall not be changed or used for purposes other than those set forth in this Agreement without the prior written approval of COVINGTON. If CITY releases the Work Products to a third party without COVINGTON'S prior written consent, or changes or uses the Work Products other than as intended hereunder, CiTY does so at its sole risk and discretion and COVINGTON shall not be liable for any claims or damages resulting from or connected with the release or any third party's use of the Work Products. AR TICI ,E VII INDEPENDENT CONTRACTOR COVINGTON shall provide services to the CITY as an independent contractor, not as an employee of the CITY. COVINGTON shall not have or claim any right arising from employee status. INDEMNITY AGREEMENT COVINGTON shall indemnify and save and hold harmless the CITY and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses and expenses, including but not lirrdted to court costs and reasonable attorney's fees incurred by the CITY, and including without limitation, damages for bodily and personal injury, death and property damage, and damage for professional malpractice resulting from the negligent acts or omissions of COVINGTON or any subconsultants, in performance of this Agreement. COV1NGTON'S liability under this Article VIII is expressly limited to the amount of COVINGTON'S insurance coverage as set forth in Article IX. 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 govermnental immunity, which defenses are hereby expressly reserved. ~kRII!2J..Z, JX INSURANCE During the performance of the Services under this Agreement, COVINGTON shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an "A-" or above: Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 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. Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each 4 person and not less than $500,000 for each accident; and with property damage limits of not less than $100,0O0 for each accident. Professional Liability Insurance with policy limits of not less than $1,000,000 annual aggregate. Do COVINGTON shall fi.kmish insurance certificates or insurance policies at the CITY's request to evidence such coverages. The insurance policies shall name the CITY as an additional insured on all such policies to the extent legally possible, and shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days prior written notice to CITY and COVINGTON. In such event, COVINGTON shall, prior to the effective date of the change or cancellation, deliver substitute policies furnishing the same coverage to the CITY. ARffiCL.E_X ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties 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. LIMITATION OF LIABILITY To the extent permitted by law, the total liability of COVINGTON to CITY for any and all claims arising out of this Agreement, whether caused by negligence, errors, omissions, strict liability, breach of contract or contribution, or indemnity claims based on third-party claims, shall not exceed one million dollars ($1,000,000). AILTICLE_XII CONSEQUENTIAL DAMAGES In no event and under no circumstances shall COVINGTON be liable to CITY for any interest, loss of anticipated revenues, earnings, profits, or increased expense of operations, or for any consequential, indirect or special damages. ARTICI.E XIII PROFES~qlONAI. STANDARDS COVINGTON will perform services under this Agreement with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same degree of similar services. No other wawanty or guarantee, expressed or implied, is made with respect to the services furnished under this Agreement and all implied warranties are disclaimed. TERMINATION OF AGREEMENT Notwithstanding any other provision of this Agreement, either party may terminate this Agreement by giving thirty (30) days advance written notice of termination to the other party. Bo This Agreement may be terminated in whole or in part in the event of either party substantially fa/ling 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, and not less than ten (10) business days in which 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, COVINGTON shall immediately cease all services and shall render a final bill for services to the CITY within 30 days after the date of termination. The CITY shall pay COVINGTON for all services properly rendered and satisfactorily performed and for reimbursable expenses to term/nation incurred prior to the date of termination in accordance with Article IV, Compensation. Should the CITY subsequently contract with a new consultant for the continuation of services on the Project, COVINGTON shall cooperate in providing information. COVINGTON shall mm over all documents prepared or furnished by COVINGTON pursuant to this Agreement to the CITY on or before the date of termination, but may maintain copies of such documents for its use. RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the CITY shall not constitute nor be deemed a release of the responsibility and liability of COVINGTON, or any sub-consultants of COVINGTON, for the accuracy and competency of their designs or other work product. NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or ma/led to the respective parties by depositing same in the United States mail at the address shown below, certified mail, return receipt requested unless otherwise specified herein. Mailed notices shall be sent to the parties at the following addresses: To COVINGTON: To CITY: R.J. Covington Consulting, LLC Arm: Richard J. Covington 11044 Research Blvd., Suite A-325 Austin, Texas 78759 City of Denton, Texas Atto: Michael A. ConduiT, City Manager 215 East McKinney Street Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given or within three days after the date of mailing. A1LTICLEXJvTI ENTIRE AGREEMENT This Agreement consisting of nine (9) pages, and four (4) additional pages consisting of Task Order No. 04-A, 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 ali prior contemporaneous offers, promises, representations, negotiations, discussions, communications and agreements which may have been made in connection with the subject matter hereof. ARTICI,F, XVIII SEVERABILITY 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 fi.om the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the party shatl reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. COMPLIANCE WITH LAWS COVINGTON ordinances applicable amended. shall comply with all federal, state, local laws, rules, regulations, and to the work covered hereunder as they may now read or hereinafter be ARTICJ ,F. XX DISCRIMINATION PROHIBITED In performing the services required hereunder, COVINGTON shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTJCL.EXXI PERSONNEL COVINGTON represents that he has secured, or will secure at his own expense any additional personnel required to perform all the services required under this Agreement. Such personnel shall be subconsultants of COVINGTON, and shall not be employees or officers of, nor have any contractual relations with the CITY. COVINGTON shall inform the CITY of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement. All services required hereunder will be performed by COVINGTON or under his supervision. All personnel engaged in work shall be qualified and shall be authorized and permitted under 7 state and local laws to perform such services. ARTICLE XXII ASSIGNABILITY COVINGTON 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 CITY. ARTTCT~E XXIIT 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 and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing, duly executed; and, the parties further agree that the provisions of this section will not be waived unless as herein set forth. Co ARTICLE xXW MISCELLANEOUS COVINGTON agrees that CITY shalI, until the expiration of three (3) years after the final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of COVINGTON involving transactions relating to this Agreement. COVINGTON agrees that the CITY shall have access during normal working hours to all necessary COVINGTON facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section. The CITY shall give COVINGTON reasonable advance notice of any intended 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. COVINGTON shall commence, carry on, and complete the work required by this engagement with all applicable dispatch, in a sound, economical, efficient manner and in accordance with the provisions hereof. In accomplishing the work, COVINGTON shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carded on by the CITY. The CITY shall assist COVINGTON by placing at COVINGTON's disposal all available information pertinent to the work required by this engagement, including previous reports, any other data relative to the project and arranging for the access to, and make all provisions for COVINGTON to enter in or upon, public and private property as required for COVINGTON to perform services under this Agreement. 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 City of Denton, Texas has caused this Agreement to be executed in four (4) original counterparts, by its duly authorized City Manager; and R.J. Covington Consulting, LLC has executed this Agreement by its duly authorized officer on this the __ day of March, 2004, but to be effective, ratified, confirmed and approved from and after February 1, 2004. "CITY" CITY OF DENTON, TEXAS A Municipal Corporation ATTEST: JENNIFER WALTERS, CITY SECRETARY By: Michael A. Conduff, City Manager By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: .. "COVINGTON" R.J. COVINGTON CONSULTING, LLC A Texas Limited Liability Corporation By: Richard J. Covingi~n, Presid~ S:\Our Documents\Contracts\04LRJ Covington Consulting LLC-PSA-TO 04-A 2004-TNT Market Design-DME.doc ATTACHMENT PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF DENTON AND R.J. COVINGTON CONSULTING, LLC TASK ORDER NO. 04-A TNT Market Design Work provided for in this Task Order is directed at assisting the City staff (Staff) in addressing issues associated with the Texas Nodal Team ("TNT") process to redesign the Texas eleclric market. The TNT process is a continuation of Project 26736 "Rulemaking Proceeding on Wholesale Market Design Issues in the Electric Reliability Council of Texas". This process is of particular importance to the City of Denton, Denton Municipal Electric' ("DME"), and DME's ratepayers due to the potential significant shifting of costs within ERCOT as a result of the proposed market design. In working with Staff on this project, R. J. Covington Consulting ("RJC") will assist in representing DME at the Public Utility Commission of Texas ("PUC") and at the Electric Reliability Council of Texas ("ERCOT") to develop and present the City's position on the propose nodal market design. The scope of services includes continuing participation at the PUC in Project 26736 and participation at ERCOT on TNT committees and task forces developing rules for implementing the nodal system. RJC will also assist in developing materials for lobbying the Legislature to explain the impact on DME and the Dallas/Ft. Worth area of implementing a nodal market design. All work on this Task Order will be at the direction of the Director of Electric Utilities. Background The PUC has stated its intent that ERCOT will implement a nodal system that will charge loads in congested areas of the state the costs of cleating that congestion. Currently those costs are uplifted to all loads in the state. The Dallas/Ft. Worth area has some of the highest level of transmission congestion in the state. This change in methodology could have a substantial negative impact on ratepayers in the Dallas/Ft. Worth area and other congested areas of the state. The City has determined that implementation of a nodal system without an appropriate cost/benefit analysis and without due consideration of the impact on ratepayers is detrimental to the state in general and to ratepayers of Denton Municipal Electric ("DME") in particular. RJC is actively working with other stakeholders and with PUC staff and Commissioners to inform parties of the potential significant negative impacts on the Dallas/Ft. Worth economy and on DME. As the second largest municipal utility in North Texas, DME has EXHIBIT 3 Task Order 04-A TNT Market Design taken a lead role in this effort. Due to the expansive scope of the market redesign, this process requires active participation at the PUC, ERCOT and the Legislature, and involves numerous meetings and hearings. DME shares the costs of this effort with Garland Power and Light and Greenville Municipal Electric System. Because the schedule for implementing a nodal market design extends through 2006, additional work orders may be required to complete this work. RJC will keep the Director of Electric Utilities informed of the status of the budget and work may be stopped at any time by notification by the Director of Electric Utilities to RJC to cease work. Scope of Services Task A PUC Activities Task A-1 Attending Workshops And Hearings At PUC 1. RJC will stay informed on activities related to Project 26736 at the PUC and will attend workshops and hearings as needed. 2. When appropriate, RJC will participate in workshops and hearings to represent interests of City based on directions of Staff. 3. RJC will work with Staff in developing positions that should be taken and strategies for working with parties involved. 4. RJC will prepare or assist in preparing comments to be filed with the PUC representing DME's positions on proposed rules, projects and dockets related to nodal market design. Task A-2 Analyze Impact of Nodal Implementation 1. RJC will meet with PUC staff and other parties as appropriate to discuss proposed rules, and present the City's concerns regarding the impact of the rules on DFW area ratepayers. 2. As the nodal market design is developed, RJC will continue to analyze the potential impacts of the various components of the changes to the market. 3. RJC will continue to work with consultant Dr. Shams Siddiqi, using the nodal models developed by Dr. Siddiqi to evaluate the impact on DME customers and on the Texas market in general. Task B Assistance With ERCOT · Task B-1 Attend TNT Committee and Concept Group Meetings At ERCOT 2of4 Task Order 04-A TNT Market Design 1. RJC will stay informed on activities at the ERCOT Independent System Operator (ISO) and will attend meetings as directed by Staff that are related to implementing the nodal market design. 2. RJC will participate in TNT meetings and concept groups to represent the interests of DME based on directions of Staff. 3. RJC will work with Staff in developing positions which should be taken and strategies for working with other ERCOT stakeholders. Task B-2 Analyze Proposed Policies and Protocols 1. RJC will analyze new market design policies and protocols proposed by the ISO. 2. RJC will review concept group white papers with Staff to identify areas of concern and prepare responses that represent the position of DME on the issues before the TNT general session and the concept groups developing the nodal market design. 3. RJC will meet with ERCOT staff and other stakeholders to discuss proposed market design issues and negotiate to mitigate the impact on DFW loads. Task C Working With Other Affected Parties Task C-1 Coordination With Other Market Participates 1. RJC will continue to work with other affected municipalities, organizations, cooperatives, and associations where appropriate to mitigate the impacts of the nodal market on certain areas of the state. 2. RJC will participate in meetings with other market participates to discuss strategy and positions. 3. RJC will coordinate with other parties, mayors and attorneys to communicate concerns to the PUC and Legislature. 4. RJC will continue to develop issues papers and statistics to assist in educating legislators, media and other market participates on the current market design and proposed changes. Task C-2 Work With Lobbyists and Publicists RJC will work with the City's lobbyists to educate legislators on the issues. RJC will work with the City's communication director and other spokespersons to inform the public of the impact on them of the Commission's push to a nodal market design. 3of4 Task Order 04-A TNT Market Design Task D Assist Attorneys in Commission Sunset Review Task D-1 Evaluate Commission's Record On Meeting Legislative Directives 1. RJC wiI1 work with the City's legal specialists to develop testimony on the Commission's actions and adherence to Legislative intent since the last Sunset Review. 2. RJC will present testimony and participate in Legislative hearings as necessary to present concerns regarding the Commission's operations and actions. Budget A budget of $100,000 for labor and expenses is agreed upon. Because of the uncertainty regarding the level of activity required, this budget is an estimate. Additional work orders may be required to complete this work. This budget will not be exceeded without prior written approval of the City. RJC will bill this Task Order monthly, with supporting documentation of activities performed. The work being performed will be under the supervision of the Director of Electric Utilities, and may be modified at any time upon appropriate notice to RJC. EXECUTED this February, 2004. day of March, 2004, but to be effective as of the 1st day of AUTHORIZED BY: ACCEPTED BY: CITY OF DENTON, TEXAS A Texas Municipal Corporation R.J. COVINGTON CONSULTING, LLC By: Dated: By: ~,~-'-~ Dated: Z~/.~.~/~ _~ ATTEST: JENNIFER WALTERS, CITY SECRETARY By: Dated: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: Dated: S:\Our Documents\Contracts\04'~LlC TO 04-A 2004-TNT Market Design.doc 4of4 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 CITY OF DENTON PUBLIC UTILITIES BOARD MINUTES February 23, 2004 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, February 23, 2004, 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, Yolanda Guzman, George Hopkins, Charldean Newell, Dick Smith and Don White EX OFFICIO MEMBERS Michael Conduff, City Manager Howard Martin, ACM/Utilities EXCUSED: ITEMS FOR INDIVIDUAL CONSIDERATION: 2) Consider approval of Task Order 04-A with R. J. Covington Consulting, LLC for continued support in the ongoing Texas Public Utility Commission (TPUC)/Electric Reliability Council of Texas (ERCOT) electric wholesale market design project. Board Member George Hopkins moved to approve Task Order 04-A, with a second from Board Member Bill Cheek. The motion was approved by a vote of 7-0. Page 1 of l EXHIBIT 4 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 2, 2004 Tax Kathy DuBose SUBJECT Consider approval of tax refunds for the following property taxes: Tax Name Reason Year Amount BACKGROUND Chapter 31.11 of the Texas Property Tax Code requires the approval of the governing body of the taxing unit for refunds in excess of $500.00. FISCAL INFORMATION The tax overpayment revenue fund would be reduced by $13,280.76 Respectfully submitted: Diana Ortiz Director of Fiscal Operations AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 2, 2004 Engineering Jon Fortune, Assistant City Manager SUBJECT Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Pipeline Crossing Agreement with Union Pacific Railroad Company for a pipeline crossing located at Mile Post 723.10, Choctaw Subdivision, City of Denton, Denton County, Texas; Authorizing the expenditure of funds, therefore; and providing an effective date. BACKGROUND An existing sanitary sewer line in Roselawn Road and James Street near the intersection of Roselawn Road and Bernard Street is in need of replacement. The replacement is being constructed as part of the City of Denton Hickory Creek Sanitary Sewer Replacements and Liners project. Bids for this project were received on November 25, 2003, and Circle "C" Construction has been selected as the lowest most responsible bidder. The existing sewer line crosses the Union Pacific Railroad and a Pipeline Crossing Agreement is required. The Union Pacific Railroad Company has agreed to the encroachment on their right-of-way with the use of the Pipeline Crossing Agreement. OPTIONS 1. Approve the Ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION Staff endorses the approval of the draft ordinance. ESTIMATED PROJECT SCHEDULE Spring 2004 PRIOR ACTION/REVIEW (Council, Boards, Commissions) None FISCAL INFORMATION The cost to the City is a $2,000.® one-time license fee ATTACHMENTS Location Map Ordinance License Agreement Exhibits Charles Fiedler, Director Engineering Department Prepared by: Denise M. Perez Real Estate & Capital Support Division LOCATION MAP --At Mile post 521ill ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A PIPELINE CROSSING AGREEMENT WITH UNION PACIFIC RAILROAD COMPANY FOR A PIPELINE LOCATED AT MIlE POST 521.11, CHOCTAW SUBDIVISION, CITY OF DENTON, DENTON COUNTY, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON, TEXAS HERBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to execute a Pipeline Crossing Agreement with Union Pacific Railroad Company for a sanitary sewer pipeline located at mile post 521.11, Choctaw Subdivision, City of Denton, Denton County, Texas which is attached hereto and incorporated by reference herein (the "Agreement"). SECTION 2. The expenditure of funds as provided in the Agreement is hereby authorized. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED Ayq2~ L,~F~,GAL FORM: ^ TO Y BY: ~ - ~ EULINEBROCK, MAYOR *,i. · 2- 2"04;12.:54P~vl;U'NION PACIFIC ;4029973293 ~ '4/ 1.0 Folder No. 2226-17 ?IPELI~IE CROSSING AGREEMENT Mile Post: 521.11, Choctaw Subdivision Location: DENTON, Denton County, Texas TEllS AGREEMENT is made and entered into as of January 15, 2004, by m~d between 'UNION PACIFIC RAILROAD COMPANY,' a Delaware corporation, (hereinafter the "'Licensor") and DENTON, CITY OF, a Texas municipal corporation, to be addressed at City Hail East, 601 East Hickory, Suite B, Denton,TX 76205 (hereinafter the "Licensee"). IT IS MUTUALLY AGKEED BY AND BETWEEN TIIE PARTIES I]~RETO AS FOLLOWS: Section 1. LICENSE FEE Upon execution of this Agreement, the Licensee shall pay t~ the Licensor a one-time License Fee of TWO THOUSAND DOLLARS ($2,000.00). Section 2. LICENSO~R GRANTS RIGHT. " " In consideration of the License Fee to be paid by the Licensee and in further consideration of the covenants and agreements herein contained to be by the Licensee kept, observed and performed, the Licensor hereby grants to the Licensee the right to construct and thereafter, during the term hereof, to maintain and operate only a 8" wastewater pipeline crossing (hereinafter the "Pipeline") in the location shown and in conformity with the dimensions and specifications indicated on the attached print dated 1/13/04, marked Exhibit A. Under no circumstances shall Licensee modify the use of the Pipeline for a purpose other than the above-mentioned, and said Pipeline shall not be used for any other use, whether such use is currently technologically possible, or whether such use may come into existence during the life of this Agreement. Section 3. CONSTRUCTION, MAINTENANCE AND OPERATION, The grant of right herein made to the Licensee is subject to each and all of the terms, provisions, conditions, limitation, and covenants set forth herein and in Exhibit B, hereto attached. Section 4. IF WORK IS TO BE PERFORM. ED BY CONTRACTOR. If a contractor is to do any of the work performed on the' PiP'~iine (including initial construction and subsequent relocation or substantial maintenance and repair work), then the Licensee shall require its contractor to execute the Licensor's form Contractor's Right of Entry Agreement. Licensee acknowledges receipt of a copy of the Contractor's Right of Entry Agreement and understands its terms, provisions, and requirements, and will inform its contractor of~e need to execute the Agreement. Under no circumstances will Licensee's contractor be allowed onto Licensor's premises without first executing the Contractor's Right of Entry Agreement. Section $. INSURANCE A. The Licensee, at its expense, shall provide the Licensor a Certificate of Insurance, identifying Folder No.2226-17, issued by its insurance carrier, confirming the existence of such insurance and that the policy or policies contain the following endorsement: UNION PACIFIC RAILROAD COM~PANY is named as an additional insured with respect to all liabilities arising out of the e~istenee, use or any work performed .on or associated with the 'Pipeline' located on Railroad right-of-way at Mile Post 521.11 on the CHOCTAW Subdivision, at or near Denton, Denton County, Texas. B. Licensor agrees that all of its Licensee's insurance requirements my be satisfied by self-insurance. C. Ali insurance correspondence shall be directed to: Folder No. 2226-17 Union Pacific Raikoad Company Real Estate Department 1800 Farnam Street Omaha, NE 68102 Section 6. TERM This agreement shall take effect as of the date first herein written and shall continue in full force and effect until t~t ~dnated as herein provided. Section 7. AMENDMENT OF EXHIBIT B Sections 7(b) and 10 of Exhibk B, hereto attached are hereby amended to read as follows: Section 7cb) in addition to other indemnity provisions in this agreement, the Licensee shall indemnify and hold harmless the Licensor from and against all costs, liability and expense whatsoever (including, without limitation, attorney's fees, court costs and expenses) arising out of any act or omission of the Licensee, agents and/or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications system on Licensor's property, and (2) any injury to or death of any person employed by or on behalf of any telecommunications company and/or its contractor, agents and/or employees, on Licensor's property. Licensee shall not have or seek recourse against Licensor for any claim or cause of action by alleged loss of profits of revenue or loss of service or other consequential damage to a telecommunication company using Licensor's property or a customer or user of services of the fiber optic cable on Licensor's property. Section 8. INDEMNITY As used in this Section, "Licensor" includes other railroad companies using the Licensor's property at or near the location of the Licensee's installation and their officers, agents and employees; "Loss" includes loss, damage, claims, demands, actions, causes of action, penalties, costs and expenses of whatsoever nature, including court costs and attorney's fees which may result from: (a) injury to or death of persons whomsoever (including the Licensor's officers, agents and employees, the Licensee's officers, agents and employees, as well as any other person); and Cb) damage to or loss or destruction of property whatsoever (including Licensee's property, damage to the roadbed, tracks, .equipment, or other property of the Licensor, or property in its care or custody). '' '~ 2-- 2--04;12:54PM;UNION ~0 As a major inducement and in consideration of the license and permission herein granted, the Licensee agrees, to the extent permitted by law, to indcranify and hoid harmless thc Licensor from any Loss which is duc to or arises from: 1. Thc prosecution of any work contemplated by this Agreement including thc installation, construction, maintenance, repair, renewal, modification, reconstruction, relocation, or removal of the Pipeline or any part thereof, or 2. Thc presence, operation o;* usc o£the Pipeline or contents escaping the~;efrom, except to the extent that thc Loss is caused by thc solc and direct negligence of the Licensor IN WITNESS WlCI~REOF, the parties hereto have caused this Agreement to be execUted as of the date first herein written. '" ~NION ]PACIFIC RAILROAD COMPANY DENTON, CITY OF By: By.". Manager - Contracts Title: APPROVED AS TO FORM: EXHIBIT "A" DIRECTION RELATIVE. TO CROSSING A"~ · ;~- ,7-'z/' · www. uprr.com ENCASED NON-FLAMMABLE PIPELINE CROSSING _._ '_. _. .. ~// ~ ~ : -- . ..... ~,y ~ ~ ~ 9o. . - ,m< ,, 50 FT. ~ 0 FT. .i~ 50 rz. , ~ ~ ~ ~ ~ c~ouso ~;~ STEEL CASING WALL //. .mm 5.4 FT. : ~ . .3750" 3/B' OVER 18'-22" I <4.5~ uiN.) m 3.3~¢T .SO00" I/2" OVER .6250" 5/8" OVER - -- -- ~ .......... ~ ........ ~ ........... ~-- -- OVER 48" MLIST 8E ]' ]~-~ NOTE: THIS CNART l~ ONLY "% FOR SMOOTH STEEL CASINO / ~ i STRENGTH OF 35, 000 PSI. m ~ m :, 50 FI+ ~] ~ 50 FT, ) FORMULA TO FIGURE CASING LENGTH WI[H ANGLE CF 100 FT, ~ CROSSING OTHER THAN 90' ...... 100 Fr. , ~ A) [5 PIPELINE CROSSING WITHIN DEDICATED STREET ? YES; X "0; EXHIBIT "A" D> D[STR[BUT]ON LINg OR TRANSMISSION LINE C) CARRIER PIPE: UNION PACIFIC RAILROAD CO. COMMODITY TO BE CONVEYED Wastewater OPERATING PRESSURE 0 PSI WALL THICKNESS 0.25 ;DIAMETER--;MATERIAL nYC r; -- [) CASlN~ PIPE = 0.3125 ~ ' ~ Steel M. P 5~t.{I E.S. II1~+~ WALL THICKNESS ;DIAMETER'6"'nc' ;MATER]m ; NOTE :CASING MUST HAVE 2" CLEARANCE BETWEEN GREATEST ENCASED ~.~. CROSS]NO AT OUTSIDE D[AMETER OF CARRIER PiPE AND INTER[OR DIAMETER OF ~ , CASINO P~PE. WHEN ~URN[SH]NS DIUENS~ONS~ ~VE OUTS]DE OF~=~On .~,~'~ CARRIER PIP[ AND INSIDE OF CAS[NO PIPE. ~ ,.,,i~,,~,~,, - -,eo~,~r ~O~Y BORE AND JACK tWiT BORE NOT PERMITTED) ; TUNN~L ; OTH~a .... RR FILE G) WILL CONSTRUCT]ON BE BY AN'"OUT~'[OE CONTRACTOR.'? X X[5; .. NO; H) DISTANCE FROM CENTER LINE OF TRACK TO NEAR FACE O~ B~e~ND · A R N [ N ~ JACKING PETS WHEN MEASURED AT RIGHT ANGLES TO TRACK DU ] ) APPLICANT HAS CONTACTED 1- 800- 336- 9193, (30' ~lN.) mN ALL ~CASION%, U. P. U. P. CO~UNICAT[ON DEPARTMENT, AND HAS DETERMINED FIBER or ANY ~. ~00[~[RUlNE EXiStENCE AND OPTIC CABLE DOES ; ~ DOES NOT ; EXIST IN VICINITY OF LOCATI~QF F[O[ROPYJC WORK TO BE PERFORMED . TICKET NO. 2003 1202 021 ,,~: ~-~o~-,,~ PL X 980112 Form Approved, AVP-Law EXHIBIT B Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED. (a) The foregoing grcmt of right is subiect and subordinate to the prior and continuing right and obligation of the Licensor io use and maintain its entire property including the right and power of the Licensor to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or c~cross any or all parts of its property, ali or any of which may be freely done at any time or times by the Licensor without liability to the Licensee or to cay other pa~:ty for compensation or damages. (b) The foregoing grant is also subject to ail outstanding superior rights (including those in favor of licensees and lessees of the Licensor's property, crud others) and the right of the Licensor to renew and extend the same, cad is made without covenant of title or for quiet enjoyment. Section 2. CONSTRUCTION, MAINTENANCE AND OPERATION. (a) The Pipeline shall be constructed, operated, mainIained, repaired, renewed, modified and/or reconstructed by the Licensee in slrict conformity with Union Pacific Railroad Co. Common Standard Specification 1029 adopted November 1949, and all amendmenls thereof and supplements thereto, which by this reference is hereby made a peri hereof, except as may be modified and approved by the Licensor's Vice President-Engineering Services. In the event such Specification conflicts in any respect wilh ihe requirements of any federal, slate or municipal law or regulalion, such requirements shall govern on ail points of conflicl, but in all other respects the Specification shall apply. (b) Ail work performed on property of. the Licensor in connection wilh the construction, maintenance, repair, renewal, modification or reconstruction of the Pipeline shall be done to the satisfaction o[ the Licensor. (c) Prior to the commencemenl o[ any work in connection with the.construction, maintenance, repair, renewal, modification, relocation, reconsm, tclion or removal of lhe Pipeline where it posses m~derneath the roadbed and track or tracks ol ff~e I.icensor, the Licensee shall submit to the Licensor plans setting out the method and manner of handling the work, including lhe shoring and cribbing, if any, required to protect the Licensor's operations, and shall not proceed with the work until such plans have been approved by the Vice President-Engineering Services of the Licensor and then the work shall be done to the satisfaction of lhe Vice President-Engineering Services or his authorized representative. The Licensor shall have the right, if it so elects, to provide such support as it may deem necessary for the safety of its track or tracks during the time of construction, mainlenance, repair, renewcd, modification, relocation, reconstruction or removal of the Pipeline, and, in the event the Licensor provides such support, the Licensee shall pay to the Licensor, wilhin fifteen (I5) days after bills shall have been rendered therefor, al~ expense incurred by the Licensor in connection therewith, which expense shall include ail assignable costs. (d) The Licensee shall keep and maintain the soil over the Pipeline thoroughly compacted and the grade even with the adjacent surface of the ground. Section 3. NOTICE OF COMMENCEMENT OF WORK. If an emergency should arise requiring immediate attention, the Licensee shall provide as much notice as practicable to Licensor before commencing any work. In all other situations, the Licensee shall notify the Licensor at least ten (10) days (or such othe, r time as the Licensor may allow) in advance of the commencement of any work upon property of the Licensor in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipeline. All such work shall be prosecu[ed diligently to completion. Section 4. LICENSEE TO BEAR ENTIRE EXPENSE. The Licensee shcdl bear the entire cost and expense incurred in conneclion with the construction, maintenance, repair crud renewal and any and ail modific~ion, revision, relocation, removal or reconstruction of the Pipeline, including any and ail expense which mcr,/be incurred by the Licensor in connection therewith for supervision, inspeclion, flagging, or o~herwise. p[x.exb Page [ of 4 Exhibk B PL × 980112 Form A. pprowd, AVP-Law Section $. REINFORCEMENT, RELOCATION OR.REMOVAL. OF PIPELINE. Ia) The license herein granted is subject to the needs and requirements of the Licensor in the operation of its railroad and in the improvement and use of its property, and the Licensee shall, al the sole expense of the Licensee, reinforce the Pipeline, or move all or any portion of the Pipeline to such new location as the Licensor may designate, whenever, in lhe furlherance of its needs and requirements, the Licensor shall find such action'necessary or desirable. (b) All the terms, conditions and stiputalions herein expressed with reference to the Pipeline on proper~y of the Licensor in the locaiion hereinbefore described shall, so far c~s the Pipeline remains on the property, apply to the Pipeline as modified, changed or reloc~ed within the contemplation of this section. Section 6. NO INTERFERENCE WITH LICENSOR'S OPEI:IATION. The Pipeline crud all parts thereof within c~nd outside of the timits of the property of Ihe licensor shall be constructed and, ~ afl.times, maintained, repaired, renewed and operated in such manner as to co~se no interference whatsoever with lhe constam, continuous and uninterrupted use of the tracks, property and f~cilities of the Licensor, and nothing shatl be done or suffered to be done by the Licensee at any time theft would in any manner impair the safety thereof. Section ?. PROTE..CTION OF FIBER OPTIC CABLE SYSTEMS. Ia) Fiber optic cable systems may be buried on ~he Licensor*s property. Protection of the fiber oplic cable systems is of extreme importance since any break could disrupt service to users resulting in business interrupt[on and loss of revenue and profits. Licensee shall telephone the Licensor at 1-800-336-9193 (a 24-hour number) to de~ermine if fiber optic cable is buried anywhere on the Licensor's premises to be used by the Licensee. [f it is, Licensee wil~ telephone the ~elecommunications comp~ny(ies) involved, arrange for a cable locator, make arrangemenls for relocation or other prolection of the fiber optic cable, all at Licensee's expense, and will commence no work on the righl of way until all such protection or relocation has been accomplished. Licensee shall indemnify and hold the Licensor harmless from and againsl all costs, liability and expense whatsoever (including, wi[hour limitation, attorneys' fees, courl costs and expenses) arising out of or caused in any way by Licensee's failure to comply with the pro~,4sions of this paragraph (k) .~n:,ddlf:.c~nfo-^~u .....~ ...... : ................ ,-:- ~ ............... ~. , ,,. ~ om and agcnnst all costs, habfltty and expense whosoever (including, without limit~ion, attorneys' Iee~ ccrused by the negligence of the Licensee, its contractor, agenls and/or employees, resu~tin~age to or desiru~tion of any telecommunications system on Licensor's property, and/or (2)~~y or on of any telecommunications company, and/or its liability or expenses are ca'us or seek rec consequ~ ' r e to a telecommunication company using Licensor's property or a cuslomer or user of services Section 8. CLAIMS ANj. D LIENS FOR LABOR AN.D MATERIAL; TAXi'S. '" ' ---'-~-- Ia) The L, censee shall fully pay for all materials }oread or affixed ~o and labor performed upon property of t.he connection wffh the construction, maintenance, repair, renewal, modification or reconstruction of ihe Pipeline, and shall nol permit or suffer any mechanic's or materialman's lien of any kind or nature to'be enforced agains[ the property for any work done or materials furnished thereon a~ the instance or requesl or on behalf of the Licensee. The Licensee shall indemnify and hold harmless the Licensor against and from any and all liens, claims, demands, coals and expenses of whatsoever nature in an7 way connected with or growing out of such work done, labor performed, or materials furnished. (b) The Licensee shali promptly pay or discharge all taxes, charges and assessments levied upon, in respect to, or on account of the Pipeline, to prevent the same from becoming a charge or lien upon property of the Licensor, and so that the taxes, charges and assessments levied upon or in respect to such proper~y shall not be increased because of the location, construction or mc~fntenance of the Pipeline or any improvement, appliance or fixture connected ~herewith placed upon such property, or on accoun~ of the Licensee's interest therein. Where such tax, charge or assessment ma7 not be separately made or assessed to the Licensee but shall be included in the assessment of the property of the Licensor, lhen the Licensee shall pay lo the Licensor an equitable proporiion of such taxe~ de[ermined by the value of the Licensee's property upon properS, of the Licensor as compared pix.uxb Page 2 of 4 Exhibit B PL X 980I 12 Form Approved. AVP-Law with the entire value of such property. Section 9. RESTORATION OF LICENSQ?S PROPERTY. In the event the Licensor authorizes the Licensee to take down any fence of the Licensor or in cmy manner move or disturb any of the other property of the Licensor in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipeline, then in that event the Licensee shall, as soon as possible and at Licensee's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed, and the Licensee shalt indemnify and hold harmless the Licensor, its officers, agents and employees, against and from any and all liabfliiy, loss, damages, claims, demands, costs and expenses of whatsoever nature, including court costs and attorneys' fees, which may result from injury to or death of persons whomsoever, or damage or toss or destruction of property whatsoever, when such injury, death, damage, loss or destruclion grows out of or arises from the taking down of any fence or the moving or disturbance of any other property of the Licensor. Section 10. INDEMNFfY. SEEARTICLE / _ -- fo,) A,; u~cd in :hi: Cccilcn; "Liccn.zcr" f:-,cludc; ct'ncr rcfirc.~dc ........... ~ .... ~-..t: ......:~ __' ................ ~ ~ --~. of the Licensee's inslallation and their officers, agents, and employ~'~ causes of action, penalties, costs, and expenses of whatsoever nature, including court costs and attorneys' re--may result from: (a) infury to or death of persons whomsoever (including the Licensor's officers, agents, croci e~a,i~6~ees, the Licensee's officers, agents, and employees, as well as any other person); and/or (b) damage to or loss or d ction of property whatsoever (including Licensee's property, damage to the roadbed, tracks, equipment or other ~p;j~2t~foPrr~rP~r~tTih~;ff(~rej or custody), j ' (b) As a major inducement and in consideration of I,~ the Licensee agrees to t. The prosecuIion maintenance, re ' 'enewai, modification, reconstruction, retocct[ion or removal of _~.,~...,~l'~e presence, operation, or use of the Pipeline or contents escaping therefrom, ~ / ~ Seclion 11. REMOVAL OF PIPE LiNE UPON TERM[NATION OF AGREEMENT. Prior to the termination of this Agreement howsoever, the Licensee shall, at Licensee's sole expense, remove the Pipeline from those portions of the property not occupied by the roadbed and track or tracks of the Licensor and shah restore, to the satisfaction of the Licensor, such portions of such property lo as good a condition as they were in crt the time of the construction of the Pipeline. If the Licensee fails to do the foregoing, the Licensor mcr,/do such work of removal and restoration at the cost and expense of the Licensee. The Licensor may, at its option, upon such termination, crt the entire test and expense of the Licensee, remove the portions of the Pipeline located underneath its roadbed and track or tracks and restore such roadbed to as good a condition as it was in at the time of the construction of the Pipeline, or it mcr,/permit the Licensee to do such work of removal and restoration to the satisfaction of the Licensor. In the event of the removal by the Licensor of the property of the Licensee and of the restoration of the roadbed and property as herein provided, the Licensor shall in no manner be ~iabte to the Licensee for any damage sustained by the Licensee for or on account thereof, and such removal and restoration shall in no manner prejudice or impair any right o[ action for damages, or otherwise, that the Licensor may have against the Licensee. Section ! 2. WAIVER OF BREACH. The waiver by the Licensor of the breach of any condition, covenant or agreement herein contained to be kept, observed and performed by the Licensee shall in no way impair the right of the Licensor to avail itself of any remedy for any subsequent breach thereof. plx.exb Page 3 of 4 Exhibit B PL × 980112 Fo~'m Approved. AVP-Law Section 13. TERMINATION. (a) If the Licensee does not use the right herein granted or the Pipeline for one (1) year, or if the Licensee continues in defcrul~ in the performance of any covenant or c~greement herein contained for a period of thirly (30) days after written notice from the' Licensor to the Licensee specifying such default, the Licensor may, at its option, forthwith immediately terminate this Agreement by written notice. (b) In addition to the provisions of subparagraph (a) above, this Agreement may be terminated by written notice given by either party hereto to the other on any date in such notice slated, not less, however, than thirly (30) days subsequent Io the date upon which such nolice shall be given. (c) Notice of default and nolice of termination may be served personally upon the Licensee or by mailing lo the tas~ known c~ddress of the Licensee. Termination of this Agreement for any reason shall not affect any of the rights or obligations of the parties hereto which may have' accrued, or liabilities, accrued or otherwise, which may have arisen prior thereto. Section 14. AGREEMENT NOT TO BE ASSIGNED. The Licensee shall not assign this AgreemenL fn whole or in part, or any rights herein granted, without Ihe written consent of the Licensor, and it is agreed that any transfer or assignment or attempled transfer or assignment of this Agreement or cay of the rights herein granted, whether voluntary, by operation of law, or olherwise, without such consent in writing, shall be absolutely void and, at the option of the Licensor, shatl terminate this Agreement. Section 15. SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 14 hereof, this Agreement shall be binding upon and inure to lhe benefit of the parties hereto, their heirs, executors, administralors, successors and assigns. pl×.exb P~§e 4 o~'4 Exhibit B AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET March 2, 2004 Engineering Jon Fortune, Assistant City Manager SUBJECT Consider adoption of an ordinance by the City of Demon, Texas abandoning and vacating its public utility easemems recorded in Volume 1421, Page 168, and Volume 2978, Page 915 of the Real Property Records of Demon County, Texas and being in the Poulallier Survey, Abstract Number 1006, Denton County, Texas; and providing an effective date. BACKGROUND Teasley Demon CVS, L.P. has requested that the City of Demon abandon two existing public utility easemems. On August 5, 2003, City Council approved ordinance number 2003-236 which authorized the City to enter into an agreement with Teasley Denton CVS, L.P. for the easement abandonment. Teasley Denton CVS, L.P. has relocated the utilities from the easements to be abandoned to new easements dedicated by plat as per the agreement. The relocated utilities have been accepted by the City. 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 Spring, 2004 PRIOR ACTION/REVIEW None FISCAL INFORMATION None ATTACHMENTS Location map Draft ordinance Prepared By: Tod Taylor Real Estate Specialist Respectfully submitted: Charles Fiedler, Director Engineering Department TEASLEY WIND RIVER WIND RIVER ~--~l ~ ~~377 [~~ ~": 400' / -- ~- ~ ~~'~ LJ ~ ~ , F~ ORDINANCE NO. AN ORDINANCE BY TIlE CITY OF DENTON, TEXAS ABANDONING AND VACATING ITS PUBLIC UTILITY EASEMENTS RECORDED IN VOLUME 1421, PAGE 168, AND VOLUME 2978, PAGE 915 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS AND BEING IN TIlE POULALLIER SURVEY, ABSTRACT NUMBER 1006, DENTON COUNTY, TEXAS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton has received a request from the underlying fee simple owner for the abandonment of all that certain Public Utility Easement dated May 11, 1984 and recorded in the Real Property Records of Denton County under Volume 1421, Page 168 and all that certain Tract I and Tract II Public Utility Easement dated May 1, 1991 and recorded in the Real Property Records of Denton County under Volume 2978, Page 915, said easements to be abandoned being particularly described and depicted in Exhibits "A", "B", and "C" attached hereto and made a part hereof by reference (the "Abandonment Area"); and, WHEREAS, the City Council approved Ordinance Number 2003-236 authorizing an agreement between the City of Denton and Teasley Denton CVS, L.P. for abandonment of the Abandonment Area upon relocation and acceptance by the City of utilities (the "Relocated Utilities") from the Abandonment Area to a Public Utility Easement recorded in Final Plat of Lot 1, Block A, Teasley Commons, an Addition to the City of Denton, Texas, recorded in Cabinet V, Page 136 of the Plat Records of Denton County, Texas(the "New Easement Area"); and, WHEREAS, the Relocated Utilities have been relocated to the New Easement Area with said utilities being accepted by the City of Denton Engineering Department; and, WHEREAS, the City Council hereby finds and determines that the Abandonment Area is not needed for utility easement purposes and it is in the public interest to abandon the Abandonment Area and the City's interests therein to the underlying fee owner, Teasley Denton CVS, L.P. ("Owner"); and, WHEREAS, notwithstanding any of the above, the City of Denton hereby retains all easement rights in all other easement tracts, whether conveyed by other instruments or by plat, in which the easement tracts described for abandonment herein cross and or overlap; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS, HEREBY ORDAINS: SECTION 1. The recitations and findings contained in the preamble of this ordinance are incorporated herein by reference. The Abandonment Area in hereby permanently abandoned with all of the City's fight, title and interests being quit claimed to the Owner. A certified copy of this ordinance may be recorded in the Real Property Records of Denton County, Texas to evidence this abandonment and quit claim. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ,2004. EULINEBROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERB~~ITY ATTORNEY BY: Y~/c/"~ ~ .. Page 2 Mai. ;'tail Lancaster & ASSociates;/. ..~c. Consultin,,g. Land Surveyors commercial, retail and industrial construction surveying · land title surveys * topography · subdlvlslon platting 1864 North Norwood Drive, Suite E, Hurst, TX 76054 metro (817) 268-8000 fax (817)282-2231 ~ LEGAL DESCRIPTION UTILITY EASEMENT ABANDONMENT (SEE ATTACHED EXHIBIT) ALL THAT CERTAIN TRACT OR PARCEL OF LAND BEING SITUATED IN THE C. POULALLIEI~ SURVEY, ABSTRACT NO. 1006, CITY OF DENTON, DENTON COUNTY. TEXAS, BEING ALL OF THAT LAND DESCRIBEO IN DEED TO THE CITY OF DENTON, RECORDED IN VOLUME 1421, PAGE 168, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS. ~U~a~s~li Lanca~ 4873 July 23, 2093 EXHIBIT "B" -fit..'. ',., '; .,~j . Mar~'hall Lancaster ~ Associates,'lnc. Consulting Land Surveyors commercial, retail and Industrla~ construct[On surveying * land title surveye · topography * subdivision platting 1864 North Norwood Drive, Suite E, Hurst~ TX 76054 metro (~17) 268-8000 fax (817} 282-2231 _www..mla-su .rvev.cem LEGAL DESCRIPTION UTILITY EASEMENT ABANDONMENT (SEE ATTACHED EXHIBIT) ALL THAT CERTAIN TRACT OR PARCEL OF LAND BEING SITUATED iN THE C. POULALLIER SURVEY, ABSTRACT NO. 1006, CITY OF DENTON, DENTON COUNTY, TEXAS BEING ALL OF TRACTS 1 AND 2 OF THAT LAND DESCRIBED IN DEED TO THE CITY OF DENTON, RECORDED IN VOLUME 2978, PAGE 915, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS. July 23, 2003 4 :' EXHIBIT "C" ~c. TEASLEY LANE _EMA~ 66,85' '62.10 'f/,ou S 89'49'28'E 161,§3' ~.e.~ow eL~S~C C~P ~ S 69'4.9'26'E 205' 42,89' DENTON INDEPENDENT SCHOOL DIETRfC-T VOLUME g79, PAGE 174, RPRDCT TO BE ABANDONED I~;[ACT !t, 5' b'nLqY EASEId£NT TO THE Cl3Y OF DE]~FON, VOLUI~E 2978, PAGE 915, RPRDCT N 21'59'52'£ 36.4.5' F~ ~/2' yELLOW P!.~ CAP 'COLE~ RPL5 4001' N 24'26'39'W 26.27* ,:FO 1/2" R£BAR F_D t/2' rO 1/2' ,REJ~AR TO BE ABANDONED TO THE CITY OF DENTON VOLUME 2978, PAGE 915o I I LOT 1, BLOCK A, 3EAS~ COMMONS CABIN~ V, PAGE 136 PRDCT TO BE ABANDONED TO THE crrY OF DD~TON, \ VOLUME 14.21, PAGE 1§8,. \ '.I11~ RPR'CX~T \ \ II COMMONS LTD FO VOLUME 5320, PAGE 2275 'COLD, ua .PLS t [~.] [ L- 7 .52'!;I, ~LLOW ~'~: c~ 79.48 4.?o.. / S 88'42'12"W 492.56' $ OI'og'21*'E ~.2,24' ~ LOT A, BLOCK ONE ~ ~ R.N.W. ADDITION ~-~..../E,,...~. "~;. CABINET H, PAgE 338, NOTES 1. THE BASIS 0~' BEARINOS =FOR THIS F..XHIB[T IS THE: ~ LINE OF LOT 1, BLOCK A, TEASLEY COMMONS. SHOWN THE]~EON 2. EAS£MEHTS, ~XiSTINO U'rlLJTIES ANO OTHER IMPROVEMENTS EXIST BUT ARE HOT SHOWN ON THIS EXHJB.q', 3. THE PURPOSE OF THIS EXHIBIT iS TO SHOW THE: N~iDONMENT OF U~IMTY EASE"MEN~ tN VOLUME: 2976, PAGE 915, AND VOLUM£ 14-21, PAGE 168. RPROCT. SEE ATTACHEO lEGAL DESCRIPTIONS. FO 1/2' YD..LOW pLASTIC CA~ R~'~ 4001" FO 1/2' REa,kR RED 4158Z' LEGEND · , . . 1/~: INCH REBAR WITH ALUMINUM CAP STAMPED "MLA RPt.S 4873' UNLESS NOTED OTHER~JSE (D SCALE: 1'-100' I Date: 07//25/2003 Job No: 03038A Drawn 'By. JLR ~ Checked By:. MLL MARSHALL LANCASTER &: ASSOCIATES, INC. CONSUL13N~ LAND SURVEYORS 1864- NORTE NORWOOD DRIVI~ SUITE [ HURST, TEXAS 7605/, (817) 288-8000 FAX: (817) 262-2231 AGENDA DATE: DEPARTMENT: CM: AGENDA INFORMATION SHEET March 2, 2004 Economic Development Mike Conduff ~ SUBJECT Consider adoption of an ordinance of the City Council of the City of Denton, Texas approving the Fourth Amendment to that agreement between the City of Denton and the Denton Affordable Housing Corporation; authorizing the City Manager to execute the Fourth Amendment and to expend funds with respect to the Fourth Amendment; and providing for an effective date. BACKGROUND The Denton Affordable Housing Corporation has requested to reallocate the $156,000 in HOME funding awarded to the Nevada Court project in the 2003 Action Plan to their Affordable Housing Opportunities Program (AHOP). AHOP has been funded by the City of Denton since 1995. The program entails the purchase, renovation and sale of housing units to low and moderate-income households. The reallocation of funds was previously approved by City Council through Resolution R2004-006. The resolution amended the City's 2003 Action Plan to include funding of the AHOP activity. ESTIMATED PROJECT SCHEDULE Purchase, rehabilitation and sale of units under AHOP are ongoing. All funds will be expended by July 2007. PRIOR ACTION/REVIEW (Councils, Boards, Commissions) The Community Development Advisory Committee recommended approval of the 2003 Action Plan amendment. City Council approved the amendment through Resolution R2004-006 on January 20, 2004. FISCAL INFORMATION Funding for the proposed project will be from 2003-04 Home Investment Partnerships Program (HOME). EXmBITS 1. Ordinance 2. Fourth Amendment Respectfully submitted: Linda Ratliff Director of Economic Development Prepared by: Barbara Ross Community Development Administrator ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS APPROVING THE FOURTH AMENDMENT TO THAT AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON AFFORDABLE HOUSING CORPORATION; AUTHORIZING THE CITY MANAGER TO EXECUTE THE FOURTH AMENDMENT; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on October 17, 2000 the City Council entered into an Agreement with the Denton Affordable Housing Corporation to provide certain services for the provision of affordable housing under the National Affordable Housing Act of 1990, as amended by the Housing and Community Development Act of 1992, which Agreement was authorized by Ordinance No. 2000-385; and WHEREAS, on January 15, 2002 the City Council amended the contract with the Denton Affordable Housing Corporation to provide additional funding in accordance with their approval of the 2001 Action Plan for Housing and Community Development, which Amendment was authorized by Ordinance No. 2002-330; and WHEREAS, On October 8, 2002 and September 16, 2003 the City Council again amended the contract with the Denton Affordable Housing Corporation to provide additional funding in accordance with their approval of the 2002 Action Plan and the 2003 Action Plan through Ordinance No., 2002-330 and Ordinance No. 2003-290; and WHEREAS, the City Council by approving the second amendment to the 2003 Action Plan for Housing and Community Development, which amendment was approved through Resolution 2004-006 and the scope of work for the Denton Affordable Housing Corporation has expanded; and WHEREAS, the City Council deems it in the public interest to amend the Agreement with the Denton Affordable Housing Corporation to provide for a reallocation of funding from the Nevada Court Development to the Affordable Housing Opportunity Program, to be provided from funds made available by the U.S. Department of Housing and Urban Development under the National Affordable Housing Act; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Council hereby approves the Fourth Amendment to the Agreement between the City of Denton and the Denton Affordable Housing Corporation, executed October 17, 2000, substantially in the form of the attached Exhibit "A" which is incorporated herein for all purposes, and further authorized the City Manager to execute said Fourth Agreement to the Agreement. SECTION 2. That the City Council authorizes the expenditure of funds for operating costs and project funding for the Denton Affordable Housing Corporation, included in the Fourth S/ourdocuments/ordinances/04/DAHC fourth amendment.doc Page 1 Amendment attached as Exhibit "A", which reallocates $156,000 in funding to the Affordable Housing Opportunity Program. SECTION 3. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: S/ourdocuments/ordinances/04/DAHC fourth amendment.doc Page 2 S:\Our Documems\Con/racts\04\Four/h Amendment DAIIC.DOC FOURTH AMENDMENT TO AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON AFFORDABLE HOUSING CORPORATION This Fourth Amendment to that certain Agreement between the City of Denton (hereinafter referred to as "DeNon") and the DeNon Affordable Housing Corporation (hereinafter referred to as "Contractor"), this Agreement hereinafter referred to as "Base Agreement", which is attached hereto as Exhibit 1. WHEREAS, by Ordinance No. 2000-385, DeNon authorized its City Manager to execute an Agreement with the Contractor to provide acquisition and renovation, and new construction to promote affordable housing in the City of Denton in return for Denton providing an amount not to exceed $192,167 for affordable housing projects described in the Work Statemem, Attachmem A, attached to the Base Agreement; and WHEREAS, the City Council has approved additional funding for the Comractor in accordance with their approval of the 2003 Action Plan for Housing and Community Development, and adequate funding has been obtained form the U.S. Department of Housing and Urban Development; WHEREAS, Resolution 2004-006 amended the 2003 Action Plan to reallocate $156,000 in HOME funding from the Nevada Court Developmem to the Affordable Housing Opportunity Program administered by the DeNon Affordable Housing Corporation; NOW, THEREFORE, the parties hereto agree, and by the execution hereof are bound to the mutual obligations and to the performance and accomplishment of the conditions hereinafter described. That Section 1. "Term" of the Base Agreement is amended to read as follows: This Agreemem shall commence on or as of September 1, 2000, and shall terminate on August 31, 2007, unless adjusted by the CITY. Request for such an adjustmem must be in writing and is to be submitted to the Community Developmem Division. That Section 2. read as follows: "Responsibilities" of the Base Agreemem, subsection A is amended to mo Comractor hereby accepts the responsibility for the performance of all services and activities described in the amended Work Statement attached hereto as Attachment "A" and incorporated herein as if set forth at length, in accordance with the amended S:\Our Documems\Con/racts\04\Four/h Amendment DAIIC.DOC Program Budget attached hereto as Attachment "B" and the amended Schedule of Contract Activities attached hereto as Attachment "C" and incorporated herein as if set forth at length, in as satisfactory and efficient manner as determined by City in accordance with the terms herein. o That the Base Agreement is hereby amended by substituting amended Attachments "A", "B", and "C" which are attached hereto and incorporated herein for all purposes for the original Attachments "A", "B", "C" of the Base Agreement. That save and except as amended hereby, the remaining sections, subsections, sentences and clauses of the Base Agreement dated October 17, 2000 shall remain in full force and effect. IN WITNESS of which this Fourth Amendment has been executed on this the day of ,2004, by the duly authorized officials of the City and the Contractor. CITY OF DENTON ATTEST: JENNIFER WALTERS, CITY SECRETARY MICHAEL A. CONDUFF CITY MANAGER BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: S:\Our Documems\Con/racts\04\Four/h Amendment DAIIC.DOC DENTON AFFORDABLE HOUSING CORPORATION ATTEST: LINNIE MCADAMS BOARD PRESIDENT BY: BOARD SECRETARY S:\Our Documems\Con/racts\04\Four/h Amendment DAIIC.DOC ATTACHMENT "A" WORK STATEMENT Demon Affordable Housing Corporation The Demon Affordable Housing Corporation ("DAHC") was developed to increase the supply of affordable housing in the Demon area. The organization is designed to carry out the following activities but is not limited to these: administration, rehabilitation, acquisition, new construction, and tenant-based rental assistance and public service programs. Expenditure of City funds for housing projects is limited to projects within the city limits of Demon. DAHC's projects and programs will primarily benefit low and moderate-income households. Low and moderate income is defined as households below 80% of the area median income. The Affordable Homeownership Opportunity Program provides for acquisition, renovation and sale of single-family units. HOME funding in the amoum of $470,550 will be used in the Program. Proceeds from the sale of properties will be placed in the AHOP program fund to be used to cominue the program. No more than 10% of the HOME portion of the project sales proceeds may be utilized for project delivery costs for the program. The HOME portion of the proceeds is based on the percemage of HOME funds included in the project. The Affordable Housing Construction Program provides funding to construct single-family units. Properties suitable for single-family housing will be acquired through purchase or donation. Units will be constructed in such a way as to make them affordable to low and moderate-income households. Units will be sold to HOME-eligible households. Not more than 10% of the total funding amount may be used to assist buyers with down payment and closing costs. The Nevada Court Project will culminate in the developmem of a minimum of 25 single-family housing units on property donated to and acquired by the Demon Affordable Housing Corporation. The project includes acquisition of property adjacem to the donated site off Mockingbird Lane, project planning, site developmem including sidewalks sanitary and storm sewers, water lines, and utility lines and housing construction. DAHC will also be responsible for sale of the completed single-family units. Down paymem, closing cost assistance and some "gap" financing will be available to households purchasing the units. The Nevada Court project will be completed within five years from the date of this amendment. An unspecified amount of HOME program proceeds retained by DAHC from previous projects may be used for the project. S:\Our Documems\Con/racts\04\Four/h Amendment DAIIC.DOC ATTACHMENT "B" PROGRAM BUDGET Affordable Homeownership Opportunity Program $470,550 Affordable Housing Construction Program $113,867 Nevada Court Project - An unspecified amount of HOME proceeds may be used for this project. AGENDA INFORMATION SHEET AGENDA DATE: March 2, 2004 DEPARTMENT: Legal Department CM/DCM/ACM: Herb Prouty, City Attomey SUBJECT: Consider an ordinance of the City Council of the City of Denton, Texas authorizing the City Manager to execute a Contract for Professional Legal Services with Springer, Lyle & Watt, LLP for professional legal services relating to litigation styled Ortegren, et al. v. City of Denton, Cause No. 2002-30205-211, currently pending in the 211th District Court of Denton County; authorizing the expenditure of fimds therefore; and providing an effective date. BACKGROUND: This is a wrongful death case. This, along with the potential for large damages in this case, leads us to the recommendation that this case would be best handled by outside counsel. The law firm of Springer, Lyle & Watt, LLP has provided outstanding legal services at a reasonable cost. OPTIONS: 1. Pass the ordinance to authorize eocecution of the agreement. 2. Decline to pass the ordinance to authorize execution of the agreement. FISCAL INFORMATION: The agreement caps legal fees in this matter at $35,000, and the agreement would need to be modified to exceed that figure. Respectfully~ S.e .nior.Assist.ant City~m~mey/ ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT FOR PROFESSIONAL LEGAL SERVICES WITH SPRINGER, LYLE & WATT, LLP, FOR PROFESSIONAL LEGAL SERVICES RELATING TO LITIGATION STYLED ORTEGREN, ET AL. V.. CITY OF DENTON, CAUSE NO. 2002-30205-211 CURRENTLY PENDING IN THE 211TM DISTRICT COURT OF DENTON COUNTY; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council deems it necessary, appropriate, and in the public interest to engage the law firm of Springer, Lyle & Watt, LLP ("Springer"), of Denton, Texas, to provide professional legal services relating to litigation styled Ortegren, et al. v. City of Denton, Cause No. 2002-30205-211, currently pending in the 21 lth District Court of Denton County; and WHEREAS, the City has previously retained and engaged the professional legal services of Springer, and Springer has operated under numerous other professional services agreements with the City regarding legal representation, which have demonstrated Springer's considerable expertise of relevant issues concerning the City; and WHEREAS, City staff has reported to the City Council that there is a substantial need for the hereinabove described professional services, and that limited City staff cannot adequately perform the specialized legal services 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 of professional services on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; and the City Council hereby finds and concludes that Springer is appropriately qualified under the provisions of the law to be retained as outside legal counsel for the City; and WHEREAS, the City Council has provided in the City budget for the appropriation of funds to be used for the procurement of the foregoing professional legal services, as set forth in the Contract for Professional Legal Services; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1: That the recitations in the preamble are true and correct and are incorporated herewith as part of this ordinance. SECTION 2: That the City Manager is hereby authorized to execute a Contract for Professional Legal Services with Springer, Lyle & Watt, LLP, for professional legal services relating to litigation styled Ortegren, et al. v. City of Denton, Cause No. 2002-30205-211, currently pending in the 211th District Court of Denton County, in substantially the form of the Contract for Professional Legal Services attached hereto and incorporated herein by reference. SECTION 3: That the award of this Agreement is on the basis of the demonstrated competence and qualifications of Springer, Lyle & Watt, LLP and the ability of Springer, Lyle & Watt, LLP to perform the professional legal services needed by the City for a fair and reasonable price. SECTION 4: That the expenditure of funds as provided in the attached Contract for Professional Legal Services is hereby authorized. SECTION 5: That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR By: APPROVED AS TO LEGAL FORM: S:\Our Documents\Ordi/nan~tract.doc CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS COUNTY OF DENTON § This AGREEMENT, made and emered imo this the ~ day of 2004, by and between Springer, Lyle & Watt, L.L.P., 1807 Westminster, Demon, Texas 762051 hereinafter referred to as "Consultant", and the City of Denton, a Texas municipal corporation, 215 East McKinney, Denton, Texas 76201, hereinafter referred to as "City". WITNESSETH WHEREAS, the City finds it necessary to employ omside legal counsel to perform professional legal services regarding litigation styled Ortegren, et al. v. City of Denton, Cause No. 2002-30205-211, filed in the 211th District Court of Denton County, Texas; and WHEREAS, the Consultant is willing to perform such services in a professional manner as an independent contractor; and WHEREAS, the City desires to engage the Consultant to render the professional services in connection therewith, and the Consultant is willing to provide such services; NOW, THEREFORE, in consideration of the promises and mutual obligations herein, the parties hereto do hereby mutually AGREE as follows: 1. SCOPE OF SERVICES The Consultant shall perform the following services in a professional manner working as an independent contractor not under the direct supervision and control of the City: Services to be provided: The Consultant shall evaluate the relevant facts and circumstances and shall advise the City, by written opinion, with respect to its options and the legality of such options, regarding researching and responding to requests for legal services. Consultant shall also consult, as requested, with the City Manager, the City Attomey, and any other designated City staff respecting any and all aspects of the services to be performed under this Agreement. The Consultant shall perform all the professional services required in a timely fashion, and shall complete same in compliance with schedules established by the City through its City Attorney, through discussions with the Consultant, as appropriate to carry out the terms and conditions of this Agreement. 2. TERM This Agreement shall be for a term of 36 months, beginning effective March 1, 2004 and ending on March 1, 2007. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence of this Agreement, and the Consultant shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible during the term of this Agreement, and to meet the schedules established by the City, through its City Attorney, or as the progress of this matter may require. 3. COMPENSATION AND METHOD OF PAYMENT Ao The Consultant shall charge the following fees for its professional services hereunder, based on the following fees for its professional services hereunder, based on the following hourly billing rates for the attorneys and support staff involved in this matter: Attorneys $185/hour Paralegals $ 60/hour Attorney time will be billed at one tenth (. 1) hour minimum billing increments. The Consultant will try to reduce costs whenever feasible by utilizing qualified principals, associates, paralegals, and law clerks. The Consultant shall bill the City through the submission of itemized invoices, statements, and other documentation, together with supporting data indicating the progress of the work and the services performed on the basis of monthly statements showing hourly rates indicating who performed the work, what type of work was done, and descriptions and/or details of all services rendered, along with specific description and supporting documentation, if available, respecting any reasonable and necessary out-of-pocket expenses incurred. Consultant estimates and the City agree that all charges for the legal services hereunder, including reasonable out-of-pocket expenses, shall not exceed thirty-five thousand dollars ($35,000), and Consultant agrees to notify the City and seek a modification of the agreement should the total fees exceed such amount. The City shall either pay directly or reimburse the Consultant, as the case may be, for reasonable and necessary actual out-of-pocket expenses, including but not limited to, long- distance telephone, telecopier, reproduction, overnight courier, on-line research, and travel. All copies will be charged at the rate of ten cents ($0.10) per copy for copies made within Consultant's offices, with as much photocopying as possible being done by outside vendors at bulk rates or by the city to reduce costs if bulk copying is necessary. The parties agree that there will be no charges for outgoing telecopies or incoming telecopies. Whenever feasible, City encourages cost savings by the use of computer files in Microsoft Word or Adobe Acrobat formats, attached to e-mail transmissions. Contract For Professional Legal Services - Page 2 The parties anticipate invoices or statements for services will be generated on a monthly basis and that said invoices or statements will be sent on or about the ~ day of each month. The City shall make payment to the Consultant within 30 days of the satisfactory completion of services and receipt of an itemized invoice or statement. All reimbursable expenses, including, but not necessarily limited to travel, lodging, and meals shall be paid at the actual cost, pursuant to the terms, conditions, and limitations hereinabove set forth. All invoices and bills shall be approved for payment by the City Attorney. F. It is understood that the Consultant shall work with the coordination and general supervision of the City Attorney or the Senior Assistant City Attorney/Litigation Chief. All notices, billing statements and invoices shall be made in writing and may be given by personal delivery or by mail. Notices and invoices sent by mail shall be addressed to: Jen'y E. Drake, Jr., Senior Assistant City Attomey/Litigation Chief, 215 E. McKinney, Denton, Texas 76201. When so addressed, the notice, invoice, and/or payment shall be deemed given upon deposit in the United States Mail, postage prepaid. In all other instances, notices, invoices, and/or payments shall be deemed given at the time of actual delivery. Changes may be made in the names and addresses of the responsible person or office to whom notices, invoices, and/or payments are to be sent, provided reasonable written notice is given. 4. PROFESSIONAL COMPETENCY The Consultant agrees that in the performance of these professional services, Consultant shall be responsible for the level of competency and shall use the same degree of skill and care presently maintained by other practicing professionals performing the same or similar types of work. For the purpose of this Agreement, the key persons who will be performing most of the work hereunder shall be Jeff Springer. However, nothing herein shall limit Consultant from using other qualified and competent members of its firm to perform the services required herein. All legal opinions and other legal documents prepared or obtained under the terms of this Agreement are instruments of service and the City shall retain ownership and a property interest therein. If this Agreement is terminated at any time for any reason prior to payment to the Consultant for work under this Agreement, all such documents prepared or obtained under the terms of the Agreement shall upon termination be delivered to and become the property of the City upon request and without restriction on their use or further compensation to the Consultant. 5. ESTABLISHMENT AND MAINTENANCE OF RECORDS Full and accurate records shall be maintained by the Consultant at its place of business with respect to all matters covered by this Agreement. Such records shall be maintained for a period of at least three years after receipt of final payment under this Agreement. Contract For Professional Legal Services - Page 3 6. AUDITS AND INSPECTION At any time during normal business hours and upon reasonable notice to the Consultant, there shall be made available to the City all of the Consultant's records with respect to all matters covered by this Agreement. The Consultant shall permit the City to audit, examine, and make excerpts or transcripts from such records, and to make audits of contracts, invoices, materials, and other data relating to all matters covered by this Agreementl 7. ACCOMPLISHMENT OF PROJECT The Consultant shall commence, carry on, and complete any and all projects with all practicable dispatch, in a sound, economical and efficient manner, and, in accordance with the provisions hereof and all applicable laws. In accomplishing the projects, the Consultant shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carded on by the City. 8. INDEMNITY AND INDEPENDENT CONTRACTOR RELATIONSHIP Ao The Consultant shall perform all services as an independent contractor not under the direct supervision and control of the City. Nothing herein shall be construed as creating a relationship of employer and employee between the parties. The City and Consultant agree to cooperate in the defense of any claims, actions, suits, or proceeding of any kind brought by a third party which may result from or directly or indirectly arise from any negligence and/or errors or omissions on the part of the Consultant, or from any breach of the Consultant's obligations under this Agreement. Nothing herein constitutes a waiver of any rights or remedies the City may have to pursue under either law or equity, including, without limitation, a cause of action for specific performance or for damages, a loss to the City, resulting from Consultant's negligent errors or omissions, or breach of contract, and all such rights and remedies are expressly reserved. Bo Consultant shall maintain and shall be caused to be in force at all times during the term of this Agreement, a legally binding policy of professional liability insurance, issued by an insurance carrier approved to do business in the State of Texas by the State Insurance Commission, which carder must be rated by Best Rated Carriers, with a rating of "A-" or higher. Such coverage shall cover any claim hereunder occasioned by the Consultant's negligent professional act and/or error or omission, in an amount not less than $500,000 combined single limit coverage occurrence. In the event of change or cancellation of the policy by the insurer, the Consultant hereby covenants to immediately advise the City thereof; and in such event, the Consultant shall, prior to the effective date of change or cancellation, serve a substitute policy furnishing the same coverage to the City. The Consultant shall provide a copy of such policy and the declarations page of the existing policy to the City through its City Attorney, simultaneously with the execution of this Agreement. Contract For Professional Legal Services - Page 4 9. TERMINATION OF AGREEMENT ho In connection with the work outlined in this Agreement, it is agreed and fully understood by the Consultant that the City may cancel or indefinitely suspend further work hereunder or terminate this Agreement at any time upon written notice to Consultant, Consultant shall cease all work and labor being performed under this Agreement. Consultant may terminate this Agreement by giving the City 30 days written notice that Consultant is no longer in a position to continue representing the City. Consultant shall invoice the City for all work satisfactorily completed and shall be compensated in accordance with the terms of this Agreement. All reports and other documents, or data, or work related to the project shall become the property of the City upon termination of this Agreement. Bo This Agreement may be terminated in whole or in part, in writing, by either party in the event of substantial failure by the other party to fulfill its obligations under this Agreement through no fault of the terminating party. Provided, however, that no such termination may be effected, unless the other party is given [ 1 ] written notice (delivered by certified mail, return receipt requested) of intent to terminate, and not less than 30 calendar days to cure the failure; and [2] an opportunity for consultation with the terminating party prior to termination. C° Nothing contained herein or elsewhere in this Agreement shall require the City to pay for any work which is unsatisfactory or which is not submitted in compliance with the terms of this Agreement. 10. ALTERNATE DISPUTE RESOLUTION The Consultant agrees that, if necessary, it will use its best efforts to resolve any disputes regarding the Agreement through the use of mediation or other forms of alternate dispute resolution set forth in Chapter 154 of the Texas Civil Practice and Remedies Code (V.A.T.C.S.). 11. ENTIRE AGREEMENT This Agreement represents the entire agreement and understanding between the parties, and any negotiations, proposals, or oral agreements are intended to be integrated herein and to be superseded by this written Agreement. Any supplement or amendment to this Agreement to be effective shall be in writing and signed by the City and the Consultant. Contract For Professional Legal Services - Page 5 12. COMPLIANCE WITH LAWS The Consultant shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereafter be amended, including but not limited to the Texas Disciplinary Rules of Professional Conduct. 13. GOVERNING LAW For the purpose of determining place of agreement and law governing same, this Agreement is entered into in the City and County of Denton, State of Texas, and shall be governed by the laws of the State of Texas. Venue and jurisdiction of any suit or cause of action arising under or in connection with this Agreement shall be exclusively in a court of competent jurisdiction sitting in Denton County. 14. 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. 15. PERSONNEL A. The 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 have any contractual relations with the City. Consultant shall inform the City of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement, in accordance with Consultant's responsibilities under the Texas Disciplinary Rules of Professional Conduct. All services required hereunder will be performed by the Consultant or under its direct supervision. All personnel engaged in work shall be qualified and shall be authorized or permitted under state and local laws to perform such services. 16. 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 City thereto. 17. SEVERABILITY All agreements and covenants contained herein are severable, and in the event any of them, with the exception of those contained in sections headed "Scope of Services", "Independent Contractor Relationship," and "Compensation and Method of Payment" hereof, shall be held to be invalid by any court of competent jurisdiction, this Agreement shall be interpreted as though such invalid agreements or covenants were not contained herein. Contract For Professional Legal Services - Page 6 18. RESPONSIBILITIES FOR CLAIMS AND LIABILITY Approval by the City shall not constitute nor be deemed a release of the responsibility and liability of the Consultant for the accuracy and competency of its work; nor shall such approval be deemed to be an assumption of such responsibility of the City for any defect in any report or other documents prepared by the Consultant, its employees, officers, agents and consultants. 19. MODIFICATION OF AGREEMENT No waiver or modifcation of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed as aforesaid; and, the parties further agree that the provisions of this section will not be waived as herein set forth. 20. CAPTIONS 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. 21. BINDING EFFECT This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and assigns where permitted by this Agreement. IN WITNESS HEREOF, the City of Denton, Texas, has caused this Agreement to be executed in duplicate originals by its duly authorized City Manager, and Consultant has executed this Agreement through its duly authorized undersigned parmer, dated this the __ day of ,2004. CITY OF DENTON BY: MICHAEL A. CONDUFF, CITY MANAGER Contract For Professional Legal Services - Page 7 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY. CITY ATTORNEY SPRINGER, LYLE & WATT, LLP BY: JEFF SPRINGER Contract For Professional Legal Services - Page 8 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 02, 2004 Engineering Jon Fortune, Assistam City Manager SUBJECT Consider adoption of an ordinance approving an agreemem between the City of DeNon and Canyon Energy Partners, Ltd. for the abandonment of Street Right-of-Way and Temporary Access Easement for all that portion of Blagg Road as it affects the entirety of Tract I as described in deed from Dieter Schwartz to Lakeview Ranch, L.P. as recorded under Clerk's File Number 99-R0077444, Real Property Records, Denton County, Texas, and Lot 5R and Lot 6R, Block 9, Lakeview Ranch as recorded in Cabinet T, Page 124 of the Plat Records of Denton County, Texas, and being located in the Moreau Forrest Survey, Abstract Number 417, Denton County, Texas, and providing an effective date. BACKGROUND Canyon Energy Partners, Ltd. has requested that the City of Demon abandon the portion of Street Right-of-Way and Temporary Access Easemem for Blagg Road that affects the tracts memioned. On February 17, 1998, the portion of Blagg Road that lies within Lots 5R and 6R was abandoned by Ordinance 98-045. After receiving negative feedback of the Blagg Road closure from some of the affected landowners, this portion of Blagg Road was reopened by dedication of a Temporary Access Easemem through a replat. It was the imem to abandon the Temporary Access Easemem at the time Appaloosa Drive could be developed, providing an east/west connection between Lakeview Boulevard and Trinity Road. The currem owners of the 81.83 acre Tract I desire to reach an agreemem with the City to abandon the aforememioned portions of Blagg Road in an effort to facilitate developmem of the Enclave at Lakeview Ranch. The agreemem will stipulate that public improvemems to the developmem must be in place and accepted by the City prior to any abandonmem. The improvemems must provide traffic cominuity from Trinity Road to Lakeview Boulevard. OPTIONS 1. Approve the ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION Staff recommends approval of the ordinance. ESTIMATED PROJECT SCHEDULE Spring, 2004. PRIOR ACTION/REVIEW February 17, 1998, City Council approved Ordinance No. 98-045, abandoning a portion of Blagg Road that was later rededicated as a Temporary Access Easement per replat of lots 5R and 6R as recorded in Cabinet T, Page 124 of the Plat Records of Denton County, Texas. FISCAL INFORMATION None ATTACHMENTS Location map Draft ordinance Exhibits Agreement Prepared By: Respectfully submitted: Tod J. Taylor Real Estate Specialist Charles Fiedler, Director Engineering Department ~nment BLAGG RD ? ? ? Area oflnterest / N Not to Scale ORDINANCE NO. AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF DENTON AND CANYON ENERGY PARTNERS, LTD. FOR THE ABANDONMENT OF STREET RIGHT-OF-WAY AND TEMPORARY ACCESS EASEMENT FOR ALL THAT PORTION OF BLAGG ROAD AS IT AFFECTS THE ENTIRETY OF TRACT I AS DESCRIBED IN DEED FROM DIETER SCHWARTZ TO LAKEVIEW RANCH, L.P. AS RECORDED UNDER CLERK'S FILE NUMBER 99-R0077444, REAL PROPERTY RECORDS , DENTON COUNTY, TEXAS, AND LOT 5R AND LOT 6R, BLOCK 9, LAKEVIEW RANCH AS RECORDED IN CABINET T, PAGE 124 OF THE PLAT RECORDS OF DENTON COUNTY, TEXAS, AND BEING LOCATED IN THE MOREAU FORREST SURVEY, ABSTRACT NUMBER 417, DENTON COUNTY, TEXAS, AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Canyon Energy Partners, Ltd. has made a request to the City Council of the City of Denton, Texas to enter into an agreement to abandon of all that portion of Blagg Road that lies within Tract I as described in deed from Dieter Schwartz to Canyon Energy Partners, Ltd. as recorded in Clerk's File Number 99-R0077444, Real Property Records, Denton County, Texas and to abandon a Temporary Access Easement as it affects Lots 5R and 6R of Block 9, Lakeview Ranch, an addition to the City of Denton, Texas, as more particularly described in that certain plat recorded in Cabinet T, Page 124 of the Plat Records of Denton County, Texas, (the "Abandonment Area"); and, WHEREAS, the City of Denton Engineering Department has reviewed the abandonment agreement request and has determined that the Abandonment Area is not needed for future street purposes; and, WHEREAS, the portion of the Street Right-of-Way to be abandoned is illustrated in Exhibit "A" and the Temporary Access Easement is illustrated in Exhibit "B", attached hereto and made a part hereof by reference; and, WHEREAS, the City Council hereby finds and determines that the Abandonment Area is not needed for street purposes and it is in the public interest to abandon the street right-of-way, the temporary access easement, and the City's interests therein to the underlying fee owner, Canyon Energy Partners, Ltd. ("Owner"); NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS, HEREBY ORDAINS: SECTION 1. The Street Right-of-Way and Temporary Access Easement Abandonment Agreement between the City of Denton and Canyon Energy Partners, Ltd. in substantially the form of the agreement attached hereto and made part of the ordinance for ail 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 tiffs the __ day of .,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERB~~By: ATTORNEY Page 2 STREET RIGHT~OF-WAY AND TEMPORARY ACCESS EASEMENT ABANDONMENT AGREEMENT THIS AGREEMENT is entered into effective as of the date set forth below by and between the City of Denton, Texas, a home rule municipal corporation (the "City") and Canyon Energy Partners, Ltd. (the "Landowner"). WHEREAS, the Landowner has made application requesting abandonment of Street Right-of-Way for all that portion of Blagg Road as it affects the entirety of Tract I as described in deed from Dieter Schwartz to Lakeview Ranch, L.P. as recorded under Clerk's File Number 99- R0077444, Real Property Records, Denton County, Texas (the "Street Right-of-Way"); and, WHEREAS, the Landowner has made application requesting the abandomnent of Temporary Access Easement as it affects Lots 5R and 6R, Block 9, Lakeview Ranch as recorded in Cabinet T, Page 124 of the Plat Records of Denton County, Texas (the "Temporary Access Easement"); and, WitEREAs, the Landowner has agreed that any public improvements associated with development of the affected portion of the Blagg Road abandonment tract, that lies within Tract I of the Lakeview Ranch, L.P. tract, as cited above, must accommodate street continuity to the satisfaction and acceptance of the City, more specifically, a stub-street connection projecting southward from the proposed Lost Spur Road (as shown on the approved preliminary plat of the Enclave at Lakeview Ranch, Phase I, II, & III) to Blagg Road, the centerline of said stub-street connection to be approximately 1,040 feet west of the centerline of Trinity Road, as measured along Blagg Road; and, WHEREAS, the City agrees to abandon the Street Right-of-Way and Temporary Access Easement upon completion of construction and acceptance by the City of any and all public improvements associated with the development of the affected portion of the Blagg Road abandonment tract, that lies within Tract I of the Lakeview Ranch, L.P. tract, as cited above. NOW, THEREFORE, for and in consideration of the mutual covenants contained herein the City and the Landowner hereby agrees as follows: 1. The City shall abandon the Street Right-of-Way and Temporary Access Easement upon completion by the Landowner and acceptance by the City of public improvements associated with the development of the affected portion of the Blagg Road abandonment tract, that lies within Tract I of the Lakeview Ranch, L.P. tract, as cited above,. 2. The public improvements shall provide for traffic continuity from Trinity Road to Lakeview Boulevard in a manner acceptable by the City, more specifically, a stub-street connection projecting southward from the proposed Lost Spur Road (as shown on the approved preliminary plat of the Enclave at Lakeview Ranch, Phase I, II, & m) to Blagg Road, the centerline of said stub-street connection to be approximately 1,040 feet west of the centerline of Trinity Road, as measured along Blagg Road. 3. The City Council of the City and the Landowner have duly authorized this Agreement and the execution of same by the officers or agents who have signed below on their behalf. the In Wimess Whereof, this Agreement has been executed by the parties to be effective this , day of ,2004. CITY OF DENTON By: MICHAEL A. CONDUFF, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: CANYON ENERGY PARTNERS, LTD A TEXAS LIMITED PARTNERSHI? BY: GARY DOUGLASS, V.P. APPROVED AS TO FORM BY: S:\Our Documents\Contracts\04X,Blagg Abandonment.doc Page 2 AGENDA DATE: DEPARTMENT: CM: AGENDA INFORMATION SHEET March 2, 2004 City Manager's Office Mike Conduff SUBJECT Consider adoption of an ordinance establishing the Joseph A. Carroll Administration Building as a temporary branch voting location for early voting for the May 15, 2004 election; and declaring an effective date. BACKGROUND Demon County will be conducting a bond election on May 15, 2004 and will have early voting both at City Hall and at the Carroll Administration Building. As this is the same date for the City Council election and in order to afford voters the opportunity for "one- stop" voting for both elections, it is recommended that the City establish a temporary branch early voting location the Joseph A. Carroll Administration Building. This will allow City of Denton voters going to the Carroll Administration Building to vote in the county bond election, the opportunity to also vote in the council election without having to go to two locations. The dates and hours of voting at the branch location will be the same as the dates and hours at the City Hall early voting location. Respectfully submitted: Jennifer Walters City Secretary ORDINANCE NO. AN ORDINANCE ESTABLISHING THE JOSEPH A. CARROLL ADMINISTRATION BUILDING AS A TEMPORARY BRANCH VOTING LOCATION FOR EARLY VOTING FOR THE MAY 15, 2004 ELECTION; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Denton will be conducting a city council election on May 15, 2004 and Denton County will be conducting a bond election on May 15, 2004; and WHEREAS, the dates for Early Voting by Personal Appearance for both elections will coincide with each other; and WHEREAS, Section 85.062 of the Texas Election Code allows for the establishment of a temporary branch polling location; and WHEREAS, in order to afford the voters of the City of Demon the opportunity for "one- stop" voting for both elections; NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council hereby establishes a temporary branch voting location or voting polling place for Early Voting by Personal Appearance at the Joseph A. Carroll Administration Building, 401 West Hickory Street, Denton, Texas for the early voting period during the May 15, 2004 City Council election and County bond election and runoff election, if necessary. Early voting by personal appearance shall be conducted on the same days and during the same hours as voting is conducted at the main early voting polling place. SECTION 2. Early voting at this temporary voting polling place shall be conducted in accordance with Section 85.062 and all other applicable provisions of the Election Code. SECTION 3. This Ordinance shall amend Ordinance No. 2004-046 calling a City Council election for May 15, 2004 to add this temporary early voting polling place but all the remaining portions of Ordinance 2004-046 shall remain in full force and effect. SECTION 4. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of _, 2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 of 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 2, 2004 Planning DepartmeN Jon Fortune, AssistaN City Manager SUBJECT - SI03-0024 (Gas Well Amendments) CoNinue a public hearing and consider adoption of an ordinance amending Sub-Chapters 3 (Procedures), 16 (Subdivisions), 17 (EnvironmeNally Sensitive Areas), and 22 (Gas Well Drilling and Production) of the DevelopmeN Code associated with gas well drilling and production. The Planning and Zoning Commission recommends approval (5-1) with conditions. BACKGROUND ApplicaN: City of DeNon, DeNon TX This case was coNinued from February 17, 2004, to allow additional time for citizen input specifically regarding closed loop systems and the need to drill gas wells in the floodplain. The original Gas Well ordinance wen iNo effect in December 2001. In November of 2002 at a meeting with representatives of the gas well industry, requests were made to amend the ordinance to allow gas wells by right in the floodplain instead of by a Specific Use Permit (SUP) as the ordinance is now constructed. At the direction of the City Managers office staff began to work with representatives of the gas well industry to craft an amendment that responded to the industry's request. The amendmeNs also include screening, inspection requiremeNs and environmental monitoring (Attachment 1). For the past few months, staff has been working with represeNatives of the gas well industry, the Planning and Zoning Commission and City Council to bring forward amendmeNs to the ordinance, specifically, to allow gas well developmeN in floodplain fringes (AttachmeNs 6-7). ESTIMATED PROJECT SCHEDULE March 2, 2004: Effective date of the ordinance PRIOR ACTION/REVIEW November 12, 2003: December 3, 2003: January 6, 2004: January 14, 2004: February 11, 2004: February 17, 2004: Planning and Zoning Work Session Planning and Zoning Work Session City Council Work Session Planning and Zoning Work Session Planning and Zoning Work Session and Public Hearing City Council Public Hearing FISCAL INFORMATION N/A RECOMMENDATION The Planning and Zoning Commission recommends approval (5-1, Holt opposed, Mulroy absent) with the following conditions: 1. Add notification of residences within 500 feet twenty-four hours prior to fracing of the well head as a standard requirement for all wells. 2. Revise any inconsistencies in terminology related to "development", "gas well operation" and "drilling". Attachment 9 (Subchapter 22 amendments) has been revised to reflect the P&Z's recommendation for 500' notification prior to fracing and minor typo's have been corrected. Staff also reviewed the document for any inconsistencies in terminology (P&Z recommendation #2). Although different terms are used throughout the document, staff believes that each term is used appropriately and recommends no change. ATTACHMENTS 1. Staff Analysis. 2. Points of Agreement. 3. Revised Gas Well Development Plat Checklist (underlined items are new text, struck out words are deleted). 4. Watershed Protection Permit Checklist. 5. Draft Ordinance 6. Exhibit A, Subchapter 3 amendments (underlined items are new text, struck out words are deleted). 7. Exhibit B, Subchapter 16 amendments (underlined items are new text, struck out words are deleted). $. Exhibit C, Subchapter 17 amendments (underlined items are new text, struck out words are deleted). 9. Exhibit D, Subchapter 22 amendments (underlined items are new text, struck out words are deleted). 10. February 11, 2004 Planning and Zoning Commission minutes. Prepared By: RLA, ASLA Assistant Director of Planning and Development Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary_ of Request The following categories reflect the major focuses of the proposed amendments, Gas Well Development in Floodplains: Currently any gas well proposed to be development in a floodplain requires a Specific Use Permit (SUP). An SUP is a discretionary zoning process that requires a great deal of time and energy for both staff and the applicant. Staff was charged to work with representatives from the gas well industry in order to determine if specific regulations could be developed that would minimize the impact of the construction and operation of gas wells in floodplains and thereby allow gas well development in the floodplain by right. Through a number of meetings, points of agreement (Attachment 2) were reached and were utilized as the basis for the proposed changes to Sub-chapter 22 (Attachment 9). One point of agreement is that no development would occur in any floodway. Additionally, no gas well development will occur in a riparian buffer ESA. The proposed amendments would allow gas wells in all floodplain fringe areas. Although the major emphasis of the proposed amendments is on regulation of gas wells in floodplains (Attachment 9, §35.22.5.8), additional regulations have been developed for all gas wells (Attachment 9, §35.22.5) and include monitoring and environmental inspections in the ETJ. Inspection: With the exception of inspections by the Fire Marshall, the original gas well ordinance did not provide for any site inspections. Amendments have been added to the code that will provide for inspection of every well site (Attachment 9), including wells in the ETJ. All sites will be inspected to verify that the sites are being developed as approved, including but not limited to culverts, driveway, pad site and equipment locations, and erosion control and monitored for contaminants (see below). Additional inspections and reviews will be conducted when ESA (stream buffers, floodplain) is impacted. Additionally, a Watershed Protection Permit (Attachment 9, §35.22.5.A.8) will be required prior to approval of a Gas Well Development Plat associated with a well in an ESA. Two additional fees are being proposed (by a separate ordinance) based on the above mentioned regulations: 1. $1,300 for a Watershed Protection Permit (required for a gas well located in a riparian buffer or floodplain. 2. $1,200 for on-site inspection fee for all gas well sites. In addition to those fees, staff will also be proposing a tree mitigation fee of $100 per inch. This fee is associated with the requirements of Subsection 35.22.8.c(iii) (Attachment 9). $100 per inch of tree is an accepted local cost for planting new trees. Environmental Monitoring The potential impact of developing gas wells in and near floodplains on water quality is a major concern to staff. Therefore, part of the inspection fees collected will be utilized to set up an antidegradation water quality-monitoring program (Attachment 9). Screening: All Gas Well SUP's that have been approved near existing residential property have had a screening condition placed on them. Based on that practice a requirement is being added to the code that reads: "All well heads, storage tanks, separation facilities or other mechanical equipment located within 500' of a residential property shall be screened from the residential property with a 6' high solid screen fence, good side facing the residential property and/or a solid vegetative screen. Road Repair: The focus of the original ordinance was to have any damage to roads repaired by the operator that did the damage. With the number of different operators using the same roads, it is difficult to determine which operator did what damage to what road. Staff is proposing to amend the code at a later date to change the focus towards collecting money (based on an assessment for miles of non-state road used) and then the city would be responsible for repairs. Definitions: Additional definitions Subchapter 22 (Attachment 9). (related to the proposed amendments) have been added to Subchapter 3 (Procedures): Subchapter 3 ( Attachment 6) has been revised to add appeals for the Watershed Protect Permit and to add relief provisions related to Gas Wells (§35.3.10). Subchapter 16 (Subdivisions): Subchapter 16 (Attachment 7), specifically §35.16.19 has been revised to include information on the Watershed Protection Permit, procedures for Gas Well Development Plats and standards for approval of a Gas Well Development Plat have also been revised. Subchapter 17 (Environmentally Sensitive Areas) Subchapter 17 (Attachment 8) has been revised to provide cross references to the proposed gas well regulations in Subchapter 22. Checklists: Checklists for all developments are included in the Application Criteria Manual. The checklists are intended to assist developers and design professionals in the preparation of submittals and include the minimum information required to facilitate a complete staff review. Information and documents in the criteria manuals can be updated and modified by staff as procedures and requirements change. Prior to the revisions becoming effective, they must be posted for 30 days. Minor revisions to the existing Gas Well Development Plat Checklist (Attachment 3) are proposed to reflect and clarify existing practices. The Watershed Protection Permit Checklist (Attachment 4) is new and identifies the requirements staff believes are necessary to analyze the potential impact of a proposed gas well on an ESA. Comprehensive Plan Analysis With respect to floodplains and water quality, the underlying policy, identified in the Development Code and Chapter 5 (Environment) of the Denton Plan, is to preserve and protect floodplains to minimize flooding and maximize water quality. Allowing gas wells to be developed b.v right in floodplains would be a shift in that policy which is not entirely supported or rejected by the Denton Plan. Below are a number of excerpts from Chapter 5 of the plan with a brief discussion of the impact of the proposed amendments. "The City of Denton recognizes the need to value its environmental resources appropriately. By identifying, protecting, and preserving those areas with significant ecological value, further loss of our natural heritage can be avoided. Minimizing environmental degradation and pollution is an associated priority." (pg. 101) Water Management Goals (pg. 106) · Preserve floodplain areas to improve water quality and maintain floodplain habitat. · Protect the water quality of our water supply reservoirs. Response: The proposed standards intend to mitigate the impact of developing gas wells in the floodplain; however, allowing any development in the floodplain is not true preservation but is development with mitigation. To minimize the impact on or loss of habitat, additional mitigation, of habitat could be required. Environmental Management Policies (pg. 102) · Development policies will emphasize environmental awareness, promote the ethical use of natural resources, and encourage the preservation of native habitat. Response: Although native habitat is not entirely preserved, the proposed amendments do provide standards that allow extraction of gas (a natural resource) with an emphasis on environmental protection. Additionally, the amendments propose that any tree within a floodplain that is cut down will be mitigated. Environmental protection will be an integral consideration in the development of policies concerning economic growth and community development. Response: The major emphasis of the proposed standards is on environmental protection. Appropriate protection measures and management techniques will be used to minimize harmful discharges directly to the environment. Response: The proposed standards (especially the monitoring) intend to minimize harmful discharges to the environment. Additional standards that could be considered include a closed loop system. A closed loop system would minimize the chance of a spill and/or leak from a "mud" pit. This system is not typically used by the industry due to the additional expense required, but is an option that is available. Site-specific pollution control techniques will be based on the environmental significance of the area and the pollution potential of the development. Response: The regulations do increase when a gas well is proposed in an environmentally significant area (floodplain). Environmental mitigation, or lessening of the force or intensity of developments will be considered for development in areas of ecological significance or sensitivity. Response: Mitigation is required for any tree removed in a floodplain. Additional mitigation could be required. Ecosystem Management Goals (pg. 103) Develop conservation and development priorities by: · Requiring proposed developments to protect the natural resources associated with the development site to the greatest extent possible. Response: If gas wells are allowed in the floodplains, the proposed regulations do provide a very high level of protection. Although additional mitigation requirements could be developed, the policy question that needs to be addressed is how much protection and mitigation is needed to satisfy "to the greatest extent possible" and be confident that the goals and policies of the Denton Plan are addressed. At the January 6, 2004 Work Session, City Council determined that the proposed regulations provide a level of protection consistent with the intent of the Denton Plan. Recommendation Staff recommends approval of the proposed revisions to the Development Code. ATTACHMENT 2 Floodplain Drilling Points of Agreement My comments are based on a meeting between myself, Jim Coulter, Howard Martin, Bob Cates (Lynx Oil), Ray Stevens (Devon energy) and Jay Ewing (Devon Energy) that took place on 11-6- 03 from 8:20 a.m. to 12:30 p.m. The points of agreement listed below were the main topic of discussion for this meeting. My comments, which are located below each point of agreement, reflect pertinent comments / additional considerations that were brought up during the meeting. 1. No drilling in the floodway. No equipment shall be stored in the floodway. This issue was agreed upon by all, and additional topics were discussed. For example, we discussed adding the language of "no pits or pad sites of any kind located in the floodway", and all parties were in agreement with adding this statement. All stream buffers should also have no equipment, pits, or pad sites located within the buffer (50-100 feet from the centerline of the stream on both sites, depending on the size of the drainage basin). There is still a potential issue concerning how we define floodways and floodplains. The oil and gas group indicated that this issue had been discussed with Engineering (Michael Anderson and Dave Salmon) and that the outcome of the discussion was that the currently available FEMA designation of floodplain and floodway would be used unless there is a disagreement. If a disagreement occurs, whichever party has the disagreement (the City or the oil/gas driller) will be responsible for performing the analyses needed to refute the FEMA map. I do not know if these issues were agreed upon as indicated by the oil and gas developers, but these issues must be resolved and written into the final ordinance. 2. No storage tanks shall be located in the floodplain. All agreed that no storage tanks would be located in the 100-year floodplain. There may be instances where the storage tank would be located within the fringe of a 100-year floodplain, but would be on a pad that is raised at least 2.5 feet above the 100-year floodplain level. The oil and gas developers also recommended placing steel containment tanks around all storage tanks to capture any materials that might leak from a tank if it was ruptured. This is apparently a common practice in the industry, and should not present a hardship to oil / gas developers. ESA assessments will be performed in those drilling locations, in identified floodplains and identified ESA areas. (For ESA's in the floodplain, revision to ESA protocol will be necessary) All parties were in agreement with this statement, and the oil / gas developers generally agreed to provide inspection fees to cover the costs of ESA inspections for all sites. We are working on the costs, and have worked out a draft cost allocation sheet for performing Page 1 of 4 ESA assessmems. One issue that curremly remains unresolved is the regulatory mechanism that would allow modifications to the Code. Curremly, the Code allows for modification of ESA map based on the discretion of the Director of Planning and Zoning (see DeNon Developmem Code 35.17.5.C). Applicams may also propose an Alternative Environmemally Sensitive Area Plan, as outlined in DDC 35.17.12. To date, the ESA assessmem process has only been performed on riparian buffers (not undeveloped floodplains). If a riparian buffer was determined to not be an ESA, the Director of Planning and Zoning would use this determination to justify modifying the ESA map to remove the area in question, thus removing the ESA requiremems. This process was needed, since some of the headwater ESAs indicated on the map did not really represem significam environmemal resources. However, undeveloped floodplains have always been imerpreted as being ESAs, and have therefore never been subjected to a review process. It seems, therefore, that the only mechanism within the Code that can be used to modify the regulatory requiremems of an undeveloped floodplain is Section 35.17.12. Any modification of 35.17.12 will require an SUP, which by definition will require a public hearing before both the Planning and Zoning Board and the City Council. Since the SUP process can take an appreciable amoum of time and resources, the oil and gas developers would like to see a process that allows the decision to drill in floodplain areas to be made at the discretion of staff. Whether or not this is possible, or even desirable, is a topic for discussion. However, this issue will need to be resolved before the existing ordinance can be modified. 4. Tree remediation plan will be developed for damage in floodplain & ESA's All parties were in agreemem with this statemem. The oil and gas developers did not think this would be a major issue for them, as they have some flexibility when locating pad sites and should be able to work around most trees. We are curremly working on an ESA assessmem protocol for undeveloped floodplains, which will likely be very tree oriemed. Tree preservation protocol for these areas will likely be more stringem that the protocol set forth in the currem draft tree ordinance for the City of DeNon. There will likely be some form of mitigation if there is no way to design a site without impacting trees. 5. No permitted pits in the floodplain. This seems to be a "non-issue", as most pits are now not permitted, according to the oil and gas developers. The is statement should read "no pits in the floodway, and no pits within the 100-year floodplain except mud circulation pits. If a pit is located in the 100- year floodplain, the developer would have to demonstrate that the construction of the pit would not violate floodplain fill requiremems. Drilling mud pits may be constructed in the floodplain, upon completion of drilling, pits shall be removed within 90 days. All plastic lining associated with pit construction shall be removed prior to closure of pits. Page 2 of 4 All agreed to this statement. The only additional issue to consider is that pits within the 100-year floodplain should be required by the code to have at least two feet from the level of the pit at full capacity and the level of mud within the pit. In other words, mud should not be any closer than 2 feet from freeboard in these pits. 7. Erosion control shall be provided for on all drilling sites located in floodplains, riparian ESA's, and any sites located within 100 ft of water of the U.S. All agreed to this provision. Coulter suggested using compost from Denton's composting operation as an erosion control mechanism. We suggested a compost berm that is at least 1 foot tall and 2 feet wide that surrounded the down gradient sides of the entire pad site. 8. Inspection of well sites for compliance with erosion control and stormwater runoff criteria. All agreed to this provision. The Utilities Department has worked up some preliminary costs for well inspections. The issue to be resolved is the regulatory mechanisms that will be available to the inspector. I would suggest having a mechanism to stop work at the site (maybe through the Fire Marshall's office) and the ability to realistically pursue the environmental damage bond that all oil and gas developers are required to obtain as a part of the permitting process. 9. An antidegradation water quality monitoring program will be conducted to protect water quality. All agreed to this provision. The final form of the monitoring program still needs to be worked out, but the oil and gas developers did not have a problem with being monitored. It is important to realize that ifa water quality problem is detected, it may be hard to determine who is at fault without more intensive monitoring. The Utilities Department has worked up some preliminary costs for the monitoring program, which include both staff time and monitoring equipment. The oil and gas developers recognize the public perception benefits of this monitoring, and agreed that a fee for this service was reasonable. The ultimate dollar amount of this fee still needs to be finalized, and will be determined somewhat by how much monitoring is done, and how often. Monitoring will likely need to be conducted on a very routine basis, as oil and sediment pollutants can move around quickly in the environment. Additional monitoring of the amount of oil contamination in the mud circulation pits will likely be considered. According to the oil and gas developers, it is a common practice to dig a trench around the drilling machinery to capture any stormwater runoff from the site. This runoff can contain oil, diesel, and other hydrocarbons from the machinery used for drilling. We may consider using a measure of Total Petroleum Hydrocarbons (TPHs) or Benzene, Toluene, Ethylene, and Xylene (BTEX) within the pit as a measure of good housekeeping. It seems appropriate to base the regulatory limits of these contaminants for the pits on the regulatory limits set by the TCEQ for the release of water contaminated with these compounds. According to Page 3 of 4 TCEQ regulations, the following are the maximum allowable concentrations for the various compounds: Compound Concentration limit TPH 15 mg/L BTEX 500 ug/L Benzene 50 ug/L From 30TAC 321.131.138 10. Inspections of well sites and water quality monitoring program will be funded through additional inspection fees. All, as outlined above, agreed upon this issue. 11. This ordinance shall apply to wells in the City Limits and ETJ requesting plats to drill in floodplains or ESA's. This issue was agreed upon by all, but Dottie Palumbo in legal is still researching the legalities of applying our ESA ordinances in the ETJ. Page 4 of 4 PLANNING AND DEVELOPMENT DEPARTMENT City Hall West- 221 N Elm - Denton, Texas 76201 voice: (940) 349-8350 fax: (940) 349-7707 www.cityofdenton.com Gas Well Development Plat Checklist Attachment 3 Failure of applicant to provide required information or obtain waiver from DRC Chair constitutes grounds for refusal of plat acceptance for processing, or staff recommendation of denim when application is scheduled for consideration. Please note that this checklist is intended to assist developers and design professionals in the preparation of submittals for DRC review and are generally what is needed to facilitate the review of the gas well development plat. Under special circumstances, additional items may be required through the Development Review Committee process prior to approval. See DRC Submission Date schedule for application submission deadlines. A complete application form, the appropriate fee (as listed on the Development Review Fee Schedule) and a total of twelve (12) copies of the plan (individually folded) are required for each submission. Any person who proposes extraction of gas on a tract of land located within the corporate ~ts or witch Division 1 of thc City's Extraterritorial Jufis&cfion, and is not required by chapter 34 to prepare a preli~naW plat or final plat, shM1 prepare a gas we~ development plat. (1) Gas we~ development plats shM1 be processed in accordance wit TEX. LOC. GOV'T CODE ANN. ~212.041 through 212.050 yernon Supp. 1994) and no new gas development may begin on property until the gas development plat is filed and approved by the city in accordance with such section 34-34. (2) ~ proposed gas development sha~ be in comphance with the Roadway Component of the Mobility Plan. (3) Erosion control is required and shM1 comply with a~ Local, State and FederM requirements. The operator shM1 Ftc a copy of the Storm water Pollution Plan if required by the EPA. (4) Reserve pits closer than 200' of a body of water, creek or floodplMn sha~ be hned to prevent water po~uhon. (5) ...... .A copy of the determination by the Texas Com~ssion on EnvironmentM QuMity of the depth of usable quMityground water. (6) Prior to approvM of a gas development plat or per,t, a Road Repair A~eement, that w~ obhgate the operator to repair damage to pubhc streets including but not h~ted to bridges, caused by the operator (or by the operator's employees, agents, contractors, or representatives) in the performance of any actMty authorized by or contemplated by the approved Gas Well Petit must be executed by the City of Denton. The City manager shM1 have the authority to enter into the Road Repair A~ccment. (7) Prior to approvM of a gas development plat or permit thc rcqMrcd insurance and pcrGrmancc bonds sha~ be Gmardcd to thc Legal Department for review and approval. (8) In addition to thc requirements of Scchon 35.16 (Contents of prch~nary plat, if apphcablc) a gas wc~ development plat sha~: ~ Identify truck routes ..... .to be usc for dchvcW of water. ~ Idcnfi~ location and dimensions of cxishng or proposed driveway(s) to be used. ~ Identify EnvironmcntMly Scnsihvc Areas (ESA's) any proposed floodplain, creek and stream crossings. ~ floodplain, creek and stream crossings, if not at ~adc, sha~ be designed to a 1 O-year storm frequency. ~ floodplain crossings shM1 have no negative affects on surrounding property. A drMnagc study sufficient to substantiate thc above rcqMrcmcnts wi~ be required as part of thc sub~ttal if crossings arc proposed. ~ Show thc location and usc of a~ structures within 500 feet of thc gas well. ~ Identify thc proposed source of water. Page 1 of 3 C:\laholley\Backup 2004\CC Feb 17th\SI03-0024 Gas Well Amendments\3. SI03-0024 Gas Well Amend Checklist.docS: ,City Cmmc~l ~clru~ ,299~ CC ~cln:~ ,92 17 9~ ,SI9~ 992~ ,~ C~ ?/ell Dc:'cl~mcnt PLANNING AND DEVELOPMENT DEPARTMENT City Hall West- 221 N Elm - Denton, Texas 76201 voice: (940) 349-8350 fax: (940) 349-7707 www.cityofdenton.com Gas Well Development Plat Identify and show proposed method of erosion control. Identify the location of proposed lease lines and well locations. [] Label distance between wells and property lines. Checklist Label distance between wellheads and structures within 500 feet of wellheads. Label distance between temporary holding ponds and floodplains. [] Provide typical well site schematics showing layout during drilling and upon completion of drilling. [] Show location of all proposed underground pipelines. As built drawings shall be filed with the City. proposed in public right-of-ways shall require a Right-of-way Use Agreement. [] Identify if pipelines connect with a Gas Distribution System. All pipelines General Requirements [] An application form, thc appropriate fcc (as listed on thc Development Review Fee Schedule) and a tot~ of twelve (12) copies in&viduaHy) folded with name of project in lower right corner. ~ Drawn to sclc: 1" = 50' or 1" = 100' (smaller of larger scale may be accepted o~y if approved by Development Review Com~ttcc Char). ~ Drawn on a sheet size of 18" X 24" or 24" x 36" (smiler of larger sheet size may be accepted only if approved by Development Review Com~ttcc Char). Legend of instruments on thc gas wall development plat - preferred. ~ Thc date, written and grap~c scale, north arrow, proposed name of thc development, key map showing thc location of thc development in relation to existing streets and ~ghways and dates of preparation and revisions. ~ Tide Block contai~ng: Proposed name of thc subdivision or lot on record, acres in platted and unplattcd land and tot~ of those acres, sun-cy and jurisdiction (City of Denton, County of Denton, Texas, for example). The date of a cation; and revision date s, Thc ....... , ....... , ....F .................................. , ~ The name, ~address phone number and emil address of the property owner or owners, ~ner~ owners, ~ner~ lessee and the planners, regfistered engineer, sun-eyor or other representatives processing the gas well development plat. ~ The names of the record owners of contiguous undeveloped lands. Name of the subdivider or developer, record owner or owners and the planners, regfistered engfineer, sun-eyor or other representatives processing the (GWD~) plat. ~ The name of each gas well and its operator's name. ~ Any ciu, or extraterritorial hnes traversing or on the boundaW of the development. ~ Include signature block for the Development Review Com~ttee Ch~rman, the City Secretary. Property owner, a representative responsible for processing the gas well development plat and design professionals must ~so sign the gas well development plat. Boundaries, Acreage, Zoning and Uses The development boundaW hnes, shown by contiguous dark lines of sufficient width to be easily identified. The total acreage within the development, the identification of each existing and proposed type of land use, and the acreage of each use. ~ existing or proposed lots and blocks identified by letter or number witNn the development and the names and lot patterns of contiguous developments, shown by dotted or dashed hnes. ~ The existing and proposed zo~ng of the land to be developed and the zo~ng of adjacent land. ~ The location and identification of ~1 existing b~ldings, paring lots, driveways, and other sig~ficant structures. Page 2 of 3 C:\laholley\Backup 2004\CC Feb 17th\SI03-0024 Gas Well Amendments\3. SI03-0024 Gas Well An, end Checklist.docS: ,City Catmcll Backap ,299q CC Bacln:p ,92 17 9q ,S193 992q ,3 Caa ?/ell Dcvclapmcnt PLANNING AND DEVELOPMENT DEPARTMENT City Hall West- 221 N Elm - Denton, Texas 76201 voice: (940) 349-8350 fax: (940) 349-7707 www.cityofdenton.com Gas Well Development Plat Checklist Utilities [] Identify and show the identification, location and size of all existing public facilities, including water and sanitaW sewer lines and the associated easements that are located within or on the boundaries of the development. [] The identification, location, and size of all existing water and sanitary sewer lines and the associated easements that are proposed to serve the development, showing the location, size, and distance of any existing lines to which connections are proposed. [] Detailed information on the means by which any alternative water or sanitary sewer service is to be provided, such as be wells or septic systems. [] The location and routing of all existing or proposed lines, easements, and facilities for providing electrical services for the development. [] The identification, location and size of all existing gas, petroleum, or similar common carrier easements located within or on the boundary of the development. Streets, Sidewalks and Driveways [] The identification, location and size of all existing streets and street rights-of-way located within the development or adjacent developments. [] The identification, location, and size of all proposed streets, sidewalk and slope rights-of-way which are to serve the development, showing the proposed connection or alignment with existing or proposed streets in adjacent developments. Where there is no adjacent development and there are arterial or collector streets proposed for the development, a key map shall be included to show the proposed future alignment and connection of the arterial or collector streets to the same type of streets in the nearest development. [] The location and width of any existing or proposed driveways that accesses or proposed to access any existing or proposed arterial street located within or on the boundary of the development. [] If a Road Repair Agreement is required, a video documenting the existing road conditions will be required prior to approval of the Road Repair Agreement. Drainage [] The topography of the existing land included within the development and any major changes in topography resulting from development as shown by contour lines of two (2) foot vertical intervals. Upon prior approval of the city en~fineer, different contour intervals may be used. [] The identification, location, and approximate dimensions of all existing and proposed water courses, ponds, detention ponds, ditches, channels, floodway and floodplain boundaries, storm water improvements, drainage easements, or similar natural or man-made drainage facilities or features located within or outside the boundaries of the development that do or will affect or impact stormwater drainage on or across the site. [] Identify and show proposed method of erosion control if applicable (may be accomplished in notes). [] Minimal drainage requirements: [] Label and show any FEMA 100-year floodplain and floodway on the plan. Label and show centerline of any stream, creek, swale, etc. [] Proposed top of drilling pad site elevation. [] Show location, size, length and type of existing and proposed driveway culverts. All culverts shall be RCP or aluminized Type II pipe. [] Provide Drainage area map and supporting calculation per drainage criteria manual for all drainage areas contributing to the proposed driveway culverts and flood plain crossings Page 3 of 3 C:\laholley\Backup 2004\CC Feb 17th\SI03-0024 Gas Well Amendments\3. SI03-0024 Gas Well An, end Checklist.docS: ,City Ct:tn;cH Backup ,299q CC Backup ,92 17 9q ,8193 992q ,3 Cas \VJcll Dcvck:pmcnt Attachment 4 PLANNING AND DEVELOPMENT DEPARTMENT City Hall West - 221 N Elm - Denton, Texas 76201 voice: (940) 349-8350 fax: (940) 349-7707 www.cit¥ofdenton.com Watershed Protection Permit Checklist Failure of applicant to provide required information or obtain waiver from DRC Chair constitutes grounds for refusal of permit acceptance for processing, or staff recommendation of denim when application is scheduled for consideration. Please note that this checklist is intended to assist developers and design professionals in the preparation of submittals for DRC review and arc generally what is needed to facilitate the review of the Watershed Protection Permit. Under special circumstances, additional items may be required through the Development Review Committee process prior to approval. See DRC Submission Date schedule for application submission deadlines. A complete application form, the appropriate fee (as listed on thc Development Rc¼cw Fcc Schedule) and a total of five (5) sets of the plan (indi¼dually Glded) are required for each submission. Any person who proposes extraction of gas within a floodplain, an ESA or within 1200 feet of the flood pool elevation of Lake Ray Roberts or Lake Lewis¼lle within the corporate limits or within DMsion 1 of the City's Extraterritorial Jurisdiction shall prepare a Watershed Protection Permit (kVPP). General Requirements [] An application form, the appropriate fee (as listed on the Development Review Fee Schedule) and a total of five 5) copies indMdually) folded with name of project in lower right corner. [] Drawn to scale: 1" = 50' or 1" = 100' (smaller of larger scale may be accepted only if approved by Development Review Committee Chair). [] Drawn on a sheet size of 18" X 24" or 24" x 36" (smaller of larger sheet size may be accepted only if approved by Development Review Committee Chair). Legend of instruments on the ~Vatershed Protection Permit - preferred. [] The date, written and graphic scale, north arrow, proposed name of the development, key map showing the location of the development in relation to existing streets and highways and dates of preparation and revisions. [] Tide Block containing: Proposed name of the subdMsion or lot on record, acres in platted and unplaned land and total of those acres, survey and jurisdiction (City of Denton, County of Denton, Texas, for example). [] The date of application and revision date(s). [] The name, address phone number and email address of the property owner or owners, mineral owners, mineral lessee and the planners, regfistered engfineer, surveyor or other representatives processing the Watershed Protection Permit. [] The names of the record owners of contiguous undeveloped lands. Name of the subdMder or developer, record owner or owners and the planners, registered engfineer, surveyor or other representatives processing the Watershed Protection Permit (WPP). [] The name of each gas well and its operator's name. [] Any city or extraterritorial lines traversing or on the boundary of the development. [] Identify proposed erosion control practices. Compost berms that are at least 1 foot high and two feet wide, or equivalent erosion control devices, shall be installed so that all portions of the well pad that may drain off-site are contained. [] Identify proposed slopes within the gas well drill sites. No gas well drill sites shall be allowed on slopes greater than ten (10) percent. [] Locate any fresh water well within 500' of the proposed well. No gas well permit will be issued for any well where the center of the well at the surface of the ground is located within 250 feet of an existing fresh water well intended for domestic use. [] Identify proposed waste minimization practices as established by the Railroad Commission. Page i of 3 C:\laholley\Backup 2004\CC Feb 17th\$I03-0024 Gas Well Amendments\4. $103-0024 Gas Well AMEND WPP Checklist.doc Form Updated: 2/2004 PLANNING AND DEVELOPMENT DEPARTMENT City Hall West - 221 N Elm - Denton, Texas 76201 voice: (940) 349-8350 fax: (940) 349-7707 www.cit¥ofdenton.com Watershed Protection Permit Checklist [] Identify Environmentally Sensitive Areas (ESA's) any proposed floodplain, creek and stream crossings. [] Identify any proposed achvity/disturbance (driveway, pipelines, storage tanks .... ) within limits of ESA. [] Field locate any proposed disturbance within the limits of ESA including but not limited to: o Limits of disturbance o Centerline of any proposed driveway or road within the limits of ESA including; · Points of curvature · Points of tangency · 50' stationing [] Tree Inventory, including size (dbh) and species of all trees within 50 feet of any area to be disturbed. o Any request to remove tree(s) shall be accompanied by a letter from a certified geologist or engdneer that indicates why the well site cannot be located to avoid the trees. o Tree mitigation for gas wells located in a floodplain fringe or other ESA shall be required and shall be calculated on a 1:1 replacement value for 100% of the dbh of trees removed from the drill site. Tree mitigation shall be accomplished by planting replacement trees, within a floodplain, on-site or off-site with similar tree species or by payment into a tree fund. Tree mitigation funds that are specific to ESA's will be kept separate from other tree funds and will only be used to either acquire wooded floodplain or riparian property that remains in a naturalistic state in perpetuity, or to purchase conservation easements within riparian or floodplain areas. Funds may be used to purchase, plant, and maintain trees on public property, as long as the public property is within a riparian area or floodplain. o Tree Mitigation funds shall be paid prior to final approval of a gas well development plat in a Flood Fringe or other ESA. [] The topography of the exishng land included within the development and any major changes in topography resulting from development as shown by contour lines of two (2) foot vertical intervals. Upon prior approval of the city engdneer, different contour intervals may be used. [] The identification, location, and approximate dimensions of all existing and proposed water courses, ponds, detention ponds, ditches, channels, floodway and floodplain boundaries, storm water improvements, drainage easements, or similar natural or man-made drainage facilities or features located within or outside the boundaries of the development that do or will affect or impact stormwater drainage on or across the site [] Identify the proposed source of water. [] Identify the locahon of proposed lease lines and well locahons. [] Label distance between temporary holding ponds and floodplains. [] Provide typical well site schematics showing layout during drilling and upon completion of drilling. Boundaries [] The development boundary lines, shown by contiguous dark lines of sufficient width to be easily identified. Utilities [] Detailed information on the means by which an); alternative water or sanitary sewer service is to be provided, such as be wells or septic systems. Page 2 of 3 C:\laholley\Backup 2004\CC Feb 17th\$I03-0024 Gas Well Amendments\4. $103-0024 Gas Well AMEND WPP Checklist.doc Form Updated: 2/2004 PLANNING AND DEVELOPMENT DEPARTMENT City Hall West- 221 N Elm - Denton, Texas 76201 voice: (940) 349-8350 fax: (940) 349-7707 www.cit¥ofdenton.com Watershed Protection Permit Checklist Drainage: [] Minimal drainage requirements: [] Label and show any FEMA 100-year floodplain and floodway on the plan. Label and show centerline of any stream, creek, swale, etc. [] Proposed top of drilling pad site elevation. [] Provide Drainage area map and supporting calculation per drainage criteria manual for all drainage areas contributing to the proposed driveway culverts and flood plain crossings [] Storage tanks or separation facilities, serving one well head, may be placed in the Flood Fringe or ESA under the following conditions: [] These facilities shall be constructed at least 18-inches above the established Base Flood elevation plus the surcharge depth for encroachment to the limits of the floodway having a one-percent chance of being equaled or exceeded in any year. [] A hydrologfic and hydraulic engineering study shall be performed by a Certified Engineer. The study shall be submitted to the Engfineering Department in a technical report for review by the City Engineer or his designated representative. The report shall demonstrate that the proposed facilities will have no adverse impacts on the carrying capacity of the adjacent waterway nor cause any increases to the elevations established for the floodplain. When the Special Flood Hazard Areas (SFHA) on the subject site is designated as "Zone A" on the FIRM Panel, or the SFHA is not identified on the FIRM Panel, the following approximate method may be used to evaluate the impacts from gas well development. A flow rate shall be calculated using procedures set forth in the City of Denton Drainage Criteria Manual. Using Manning's Equation with an estimate of the average slope of the stream, measurements of a single irregular cross-section geometry at the well site, and the 100-year discharge rate, the average vdocity and normal depth may be calculated. Calculations shall be provided for the unaltered existing channel cross-section and for the proposed modified channel cross-section and submitted to the City for review and approval prior to construction within these areas. Page 3 of 3 C:\laholley\Backup 2004\CC Feb 17th\SI03-0024 Gas Well Amendments\4. SI03-0024 Gas Well AMEND WPP Checklist.doc Form Updated: 2/2004 S:\Our Documents\Ordinanees\04\SI03-Gas Well amendments.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING PORTIONS OF SUBCHAPTER 3 (PROCEDURES), SUBCHAPTER 16 (SUBDIVISIONS), SUBCHAPTER 17 (ENVIRONMENTALLY SENSITIVE AREAS, AND SUBCHAPTER 22 (GAS WELL DRILLING AND PRODUCTION). OF THE DENTON DEVELOPMENT CODE, PROVIDING FOR A PENALTY CLAUSE WITH A MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING FOR AN EFFECTIVE DATE. (SI03-0024) WHEREAS, pursuant to Ordinance No. 2002-040 the City Council of the City of Denton, Texas adopted the Denton Development Code (the "Development Code"); and WHEREAS, after providing notice and after conducting a public hearing as required by law on February 11, 2004, the Planning and Zoning Commission recommended approval of certain changes to Subchapters 3, 16,17 and 22; and WHEREAS, after providing notice and after conducting a public heating as required by law, the City Council finds that the subject changes to the Development Code are consistent with the Comprehensive Plan and are in the public interest; NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Subchapter 3 of the Development Code is hereby amended in part as particularly described in Exhibit "A" attached hereto and made part hereof by reference. All other provisions ofsubchapter 3 not inconsistent with the amendment shall remain in full force and effect. SECTION 2. Subchapter 16 of the Development Code is hereby amended in part as particularly described in Exhibit "B" attached hereto and made part hereof by reference. All other provisions of subchapter 16 not inconsistent with the amendment shall remain in full force and effect. SECTION 3. Subchapter 17 of the Development Code is hereby amended in part as particularly described in Exhibit "C" attached hereto and made part hereof by reference. All other provisions of subchapter t7 not inconsistent with the amendment shall remain in full force and effect. SECTION 4. Subchapter 22 of the Development Code is hereby amended in part as particularly described in Exhibit "D" attached hereto and made part hereof by reference. All other provisions of subchapter 22 not inconsistent with the amendment shall remain in full force and effect. SECTION 5. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. PAGE 1 S :\Our Documents\Ordinances\04kgI03-Oas Well amendments.doc SECTION 6. If any section, subsection, paragraph, sentence, phrase or word in this ordinance, or application there of to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not effect the validity of the remaining portions of this ordinance, and City Council of the City of Denton, Texas hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 7. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the __day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY PAGE 2 Exhibit A Subchapter 3 Development Code Subchapter 3 - Procedures Sections: 35.3.1 35.4.2 35.3.3 35.3.4 35.3.5 35.3.6 35.3.7 35.4.8 35.4.9 Purpose. Procedures and Application Requirements. Denton Plan Amendment Procedure. Zoning Amendment Procedure. Planning and Zoning Commission Procedure. Board of Adjustment Procedure. Staff Review Procedure. Local Permit Procedure. Religious Freedom Procedures. 35.3.1 Purpose. The purpose of this Subchapter shall be to establish procedures for the processing of planning actions that affect the development and use of property subject to the planning jurisdiction of the City. 35.3.2 Procedures and Application Requirements. All planning actions shall be processed by one of fl~e following procedures: 1. Denton Plan Amendment: requiring action by fl~e City Council after recommendation from fl~e Planning and Zoning Commission. 2. Zoning Amendment: requiting action by fl~e City Council after recommendation from the Planning and Zoning Commission. 3. Planning and Zoning Commission: requiring action by fl~e Planning and Zoning Commission. 4. Board of Adjustment: requiting action by fl~e Board of Adjustment. 5. Staff Review: requiring action by City Staff. 6. Local Permit: requiting action by fl~e Director of Planning and Development. 7. Religious Freedom: requiring action by City Council. Application and Approval Requirements: 1. A record owner or the record owner's agent may file an application for a planning action required by tiffs Chapter. The Director or Building Official may require an applicant to provide documentation of the applicant's authority to file an application. 2. The Director may adopt roles establishing fl~e requirements for any application required under tiffs Chapter. The rules shall be published in fl~e Application Criteria Manual. The rules shall include the information required by fl~e Director or fl~e Building Official to determine if fl~e application is complete. 3. A complete application shall be submitted along wifl~ the application fee. The fees shall be established by fl~e City Council and be published in fl~e Application Criteria Manual. 4. The Director or fl~e Building Official shall disapprove an application and shall not accept an application unless fl~e application is complete. An application is complete if fl~e application contains the information required by the Application Criteria Manual. 5. The applicant may resubmit the application for approval by fl~e Director or the Building Official along wifl~ fl~e resubmittal fee according to fl~e Application Criteria Manual. 3-1 Subchapter 3 Development Code 6. An Applicant may appeal the disapproval of an application to the Board of Adjusm~ent. 35.3.3 Denton Plan Amendment Procedure. A. The following actions shall follow the Denton Plan Amendment Procedure: 1. Consider adoption of a new comprehensive plan or amendment to The Denton Plan. 2. Consider adoption of a new development code. 3. Consider an application for a zoning change that does not confom~ to the Furore Land Use element of The Denton Plan. B. Criteria for approval - Generally: 1. A complete application and fee shall be submitted. 2. The application shall address the impact of the proposed change on the following: a. The Goals and Objectives of The Denton Plan, b. The Furore Land Use element of The Denton Plan, c. The balance of land uses in the City; d. Adequate Public Facility elements of the Denton Plan, and how the proposed change will affect the provision of the services anticipated in The Denton Plan. 3. The actions in Section 35.3.3.A shall be further evaluated under the following factors to balance the interest in promoting the public health, safety, morals, or general welfare against the right to the use of the property in issue: a. The existing land use pattern surrounding the property and the possible impact on existing or furore development or uses that are in accordance with existing regulations; b. The possible creation of an isolated district unrelated to adjacent and nearby districts; c. The population density in order to facilitate the adequate provision of transportation, water, sewer, schools, parks, public convenience, and other public requirements; d. The cost to the City and other governmental entities in providing, improving, increasing or maintaining public utilities, schools, streets and other public safety measures; e. The possible in, pact on the environment, including but not limited to, drainage, soil erosion and sedin~entation, flooding, air quality and water quantity; f. Whether there are substantial reasons why the property cannot be used in accordance with existing zoning or that proposed by the Furore Land Use Map; and g. The action shall be made with reasonable consideration of the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of buildings and encouraging the most appropriate use of land throughout the City. C. Procedure: 1. Initiation may be made by: a. Recommendation of the City Council. b. Recommendation of the Planning and Zoning Commission. c. Recommendation of the City Manager. 3-2 Subchapter 3 35.3.4 Development Code d. Application by the property owner(s). As outlined in the Application Criteria Manual, the application shall be executed by all property owners, or their authorized agents. 2. If initiated by the property owner, the application must be submitted at least ninety (90) days prior to the first meeting of the Planning and Zoning Commission in January, April, July or October. A public heating shall be held before the Planning and Zoning Commission in accordance with state law. 3. Following the public hearing before the Planning and Zoning Commission, the Planning and Zoning Commission shall make a report and forward the report to the City Council in accordance with the City Charter and state law. 4. A public hearing shall be held before the City Council as required by state law. a. Notice of such heating shall be given by publication in a newspaper of general circulation in the City stating the time and place of such heating, which time shall not be earlier than fifteen (15) days from the date of publication. b. The adoption or amendment of a new comprehensive plan or the adoption of a new development code shall become effective by a sin~ple majority vote of all members of the City Council qualified to vote. c. The adoption of a zoning change that does not confom~ to the Furore Land Use element of the Denton Plan to follow the procedures outlined in Section 35.3.4.C. d. After closing the public heating, the City Council may take action consistent with The Denton Plan. 5. If an application is denied, then the subject property shall not be eligible for resubmittal for twelve (12) months unless the applicant can show a substantial change in circun~stances to justify a resubmittal. Appeals: 1. The City Council decision is a final action and may not be appealed. Zoning Amendment Procedure. The following actions shall follow the Zoning Amendment Procedure: 1. Consider an amendment to the Denton Development Code. 2. Consider an application for a zoning change that confom~s to the Future Land Use element of the Denton Plan, 3. Consider an application for a Specific Use Pemfit. 4. Consider an application for an Exaction Variance from the Subdivision Regulations. 5. Consider an application to expand a Special Exception. 6. Consider an application for an Alternative Development Plan. Criteria for approval - Generally: 1. A complete application and fee shall be submitted. 2. Applications may be approved when the following standards are met: a. The proposed rezoning confom~s to the Furore Land Use element of The Denton Plan. b. The proposed Specific Use Pemfit meets the criteria set forth in Subchapter 6, and confom~s to the purpose and intent of The Denton Plan. 3-3 Subchapter 3 Development Code c. The proposed rezoning or Specific Use Pemfit facilitates the adequate provision of transportation, water, sewers, schools, parks, other public requirements and public convenience. d. The proposed Exaction Variance is appropriate based on a finding that the imposition of the regulation(s) exceeds any reasonable benefit to the property owner or is so excessive as to constitute confiscation of the tract to be platted. e. The proposed Special Exception (or expansion) to the zoning regulations is appropriate based on the character and use of adjoining buildings and those in the vicinity, the number of persons residing or working in such building or upon such land, traffic conditions in the vicinity, and confom~ance of such area to the Zoning Map and The Denton Plan. In granting a special exception the board may designate conditions that, in its opinion, will secure substantially the purpose and intent of this Chapter. A special exception shall only be granted upon a finding that: i The exception is in ham~ony wifl~ tiffs Chapter; ii The public welfare and convenience are substantially served; iii Neighboring property is not substantially injured; iv The exception will not alter essential character of fl~e district and inm~ediate neighborhood; and The exception will not weaken fl~e general purposes of tiffs Chapter. f. Development Plans meet fl~e intent of fl~e Denton Plan and V The proposed Alternative Development Code. Procedure: Initiation of a Zoning Amendment procedure may be made by: a. Recommendation of the City Council. b. Recommendation of fl~e Planning and Zoning Commission. c. Recommendation of the City Manager. d. Application by fl~e property owner, or fl~eir authorized agent. 2. A public hearing shall be held before the Planning and Zoning Commission in accordance with state law. 3. Following the public hearing before the Planning and Zoning Commission, the Planning and Zoning Commission shall make a report and forward the report to the City Council in accordance with the City Charter and state law. 4. A public hearing shall be held before the City Council as required by state law. a. Notice of such heating shall be given by publication in a newspaper of general circulation in the City stating the time and place of such heating, which time shall not be earlier than fifteen (15) days from the date of publication. b. If a proposed amendment has been denied by the Planning and Zoning Commission, such amendment shall not become effective except by a three-fourths (3/4) vote of all members of the City Council qualified to vote. c. If a proposed rezoning of property has been protested in writing by the owners of at least twenty percent (20%) of the area within two hundred feet (200'), such amendment shall not become effective except by a three-fourths (3/4) vote of all members of the City Council qualified to vote. 5. After closing the public hearing, the City Council may take action consistent with The Denton Plan and the Development Code. 3-4 Subchapter 3 35.3.5 Development Code 6. If an application is denied, then the subject property shall not be eligible for resubmittal for twelve (12) months unless the applicant can show a substantial change in circun~stances to justify a resubmittal. Appeals: 1. The City Council decision is final and may not be appealed. Planning and Zoning Commission Procedure. The following actions shall follow the Planning and Zoning Commission Procedure: 1. Consider an application for a Plat. 2. Consider an application for a Hardship Variance from the Subdivision Regulations. Criteria for approval - Generally: 1. A complete application and fee shall be submitted. 2. Applications may be approved when the following standards are met: a. The proposed Plat meets the requirements of Subchapter 16 and state law. b. The proposed Hardship Variance is appropriate based on a finding that unreasonable hardships or difficulties may result from strict compliance with the subdivision regulations or the purposes of the regulations may be served to a greater extent by an alternative proposal. A variance may be approved so that substantial justice may be done and the public interest secured; provided that the variance shall not have the effect of nullifying the intent and purpose of these regulations; and further provided the Planning and Zoning Commission shall not approve variances unless it shall make findings based upon the evidence presented to it in each specific case that: i The granting of the variance will not be detrimental to the public safety, health, or welfare or injurious to other property; ii The conditions upon which the request for a variance is based are unique to the property for which the variance is sought and are not applicable generally to other property; iii Because of the particular physical surroundings, shape or topographical conditions of the specific property involved, a particular hardship to the owner would result, as distinguished from a mere inconvenience, if the strict letter of the subdivision regulations is carried out; iv The variance will not in any manner vary the provisions of The Denton Plan, the Development Code, and the Denton Mobility Plan, except that those documents may be amended in the manner prescribed by law; and Procedure: 1. Initiation of a Planning and Zoning Commission procedure may be made by: a. Recommendation of the City Manager. b. Application by the property owner, or their authorized agent. A public hearing shall be held before the Planning and Zoning Commission in accordance with state law related to residential Replats and Variance applications. A public meeting shall be held before the Planning and Zoning Commission in accordance with state law related to Plats and Alternative Development Plan applications. After closing the public meeting, the Planning and Zoning Commission may take action consistent with The Denton Plan and the Development Code. 3-5 Subchapter 3 Development Code 35.3.6 Appeals: 1. The Planning and Zoning Commission decision on Plats is final and may not be appealed. 2. The Planning and Zoning Commission decision on a Hardship Variance may be appealed to the City Council by the applicant. Board of Adjustment Procedure. The following actions shall follow fl~e Board of Adjusm~ent Procedure: 1. Consider an application for a Variance from fl~e zoning regulations. 2. Consider an application for a Variance from fl~e sign regulations. 3. Consider an application to change, reestablish or tem~inate a Nonconfom~ing Use. 4. Consider an appeal of an Administrative Decision. Criteria for approval - Generally: 1. A complete application and fee shall be submitted. 2. The board may grant a variance from fl~e front yard, side yard, rear yard, lot width, lot depfl~, coverage, minin~un~ setback standards, and landscaping regulations where literal enforcement of fl~e regulations will result in an unnecessary hardship and where the variance is necessary to develop a specific parcel of land, which because of site's shape, size or topograpahy differs from off, er parcels in fl~e sadie district, and fl~at it can not be developed in a manner commensurate wifl~ fl~e development allowed for the off, er parcels. A variance shall not be granted to relieve a self-created or personal hardship or to relieve a purely financial hardship. In granting any variance, the board may designate conditions, which, in its opinion, will secure substantially fl~e purpose and intent of fl~e Development Code. A variance shall only be granted upon a finding fl~at: a. Special circun~stances or conditions apply to fl~e parcel for which fl~e variance is sought, which circumstances or conditions are peculiar to such parcel and do not apply generally to off, er parcels in the same district or neighborhood and that said circun~stances or conditions are such fl~at fl~e strict application of fl~e provisions of tiffs ordinance would deprive fl~e applicant of fl~e reasonable use of such parcel; b. The granting of fl~e variance will not be detrimental to fl~e public welfare or injurious to ofl~er property or in~provements in fl~e district or neighborhood in which fl~e parcel is located; c. The granting of fl~e variance is necessary for fl~e reasonable use of fl~e parcel and fl~at fl~e variance granted is fl~e minin~un~ variance that will accomplish tiffs purpose; and d. The literal enforcement and strict application of fl~e provisions of tiffs ordinance will result in an unnecessary hardship inconsistent with fl~e general provisions and intent of this ordinance and fl~at in granting such variance fl~e spirit of fl~e ordinance will be preserved and substantial justice done. 3. The board may grant a variance from fl~e sign regulations only upon a finding fl~at all of fl~e following exist: a. Due to some unique condition or feature of fl~e parcel which is not generally common to off, er parcels, literal compliance with fl~e sign regulation would cause unnecessary hardship; b. The granting of fl~e variance will not violate fl~e spirit or fl~e intent of fl~e regulations; and c. The condition or feature which creates fl~e need for fl~e variance did not result from fl~e owner's acts. 3-6 Subchapter 3 35.3.7 Development Code 4. The board may authorize the actions described below with respect to nonconfom~ing uses if the actins would not unreasonably increase the impact to fl~e surrounding properties, nor substantially prolong fl~e life of fl~e nonconfom~ing use. Action by fl~e board shall have due regard for the property rights of fl~e person or persons affected and shall be considered in regard to the public welfare, character of fl~e neighboring properties, and fl~e conservation, preservation and protection of property. Based on fl~e foregoing criteria, fl~e board may authorize the following actions: a. The reconstruction and occupancy of a nonconfom~ing structure, or a structure containing a nonconfom~ing use, where such structure has been damaged by fire or off, er causes to fl~e extent of more fl~an fifty percent (50%), but less fl~an fl~e total of fl~e replacement cost of fl~e structure on the date of the damage. b. The enlargement, expansion or repair of a nonconfom~ing structure in excess of fifty percent (50%) of its current value. In such instance, current value shall be established at fl~e time of application for a heating before the board. If such expansion or enlargement is approved by fl~e board, all provisions of fl~e district in which such structure is located shall apply to the new construction on fl~e lot or parcel. A person shall not expand a nonconfomfing use beyond fl~e lot on which fl~e use is located however, the board may allow fl~e person to provide off-street parking or loading spaces on another lot; c. A change of use from one nonconfom~ing use to another nonconfom~ing use, provided fl~at such change is to a use of a more restricted classification. In fl~e event fl~at a nonconfomfing use is changed to a nonconfomfing use of a more restricted classification, fl~e building or structure containing such nonconfom~ing use shall not later be reverted to fl~e fom~er lower or less restricted classification. The board may establish a specific period of tinge for fl~e conversion of fl~e occupancy to a confomfing use; d. To authorize the occupancy of an abandoned nonconfomfing structure. Such action by fl~e board shall have due regard for fl~e property rights of fl~e person or persons affected, and shall be considered in regard to fl~e public welfare and safety, character of fl~e area surrounding such structure, and the conservation, preservation and protection of property. 5. The Board may review and approve, reverse, or modify any staff detem~ination made pursuant to Sections 35.3.7.A.3 and A.4 of this Subchapter. The decision of the board shall be based on the intent of this Chapter. Procedure: 1. Initiation of a Board of Adjustment procedure may be made by: a. Recommendation of the City Manager. b. Application by the property owner or their authorized agent. 2. A public hearing shall be held before the Board of Adjusm~ent in accordance with state law. 3. After closing the public hearing, the board may take action consistent with the Development Code and state law. A concurring vote of six (6) members of the board shall be necessary to reverse an administrative decision of the staff, or to approve an application on any matter upon which the board is required to act under this Chapter. Appeals: 1. The decision of the Board of Adjusm~ent is final and may be appealed pursuant to state law. Staff Review Procedure. A. The following actions shall follow the Staff Review Procedures: 1. Consider an application for Site Design review and other plans required for Site Plan approvals; 3-7 Subchapter 3 Development Code 2. 3. Consider an application for a Minor Plats; Make detem~inations regarding the application and interpretation of standards, criteria, and reqtfirements of this Chapter; and Make detemfinations regarding the appropriate designation for new and unlisted uses based on similar uses that are described. Consider an application for a Watershed Protection pem~it. Criteria for approval - Generally: 1. A complete application and fee shall be submitted. 2. Applications may be approved when the following standards are met: a. The proposed Site Design meets the requirements of The Denton Plan and the Development Code; and b. The proposed Minor Plat meets the reqtfirements of the Development Code and state law. Procedure: 1. Initiation of a Staff Review procedure may be made by: a. Recommendation of the Director of Planning and Development; or b. Application by the property owner or their authorized agent. 2. Within thirty (30) days after receipt of a complete application, the Staff shall issue a written decision to the applicant. Appeals: 1. A Staff decision on Site Design reviews may be appealed to the Planning and Zoning Commission. 2. A Staff decision on Minor Plats is £mal and may not be appealed. 3. A staff detemfination pursuant to Sections 35.3.7.A.3 and A.4 may be appealed to the Board of Adjustment. 4. A Staff decision on a Watershed Protection Pemfit or a Gas Well Development Plat maL_b_e__ap_pealed 35.3.8 to the Planning and Zoning Commission pursuant to law, Home Rule authority and its authority under Tex. Loc. Gov't. Code Chapter 212. Local Permit Procedure. A. Upon application, the Director may allow an application to be processed under preexisting land development regulations iff 1. The applicant can demonstrate that he had a pre-existing, invesm~ent-backed, good faith expectation that he would be pemfitted to commence and complete a specific project under the standards set out in Paragraphs C, D, and E, or 2. The applicant can demonstrate a project in progress pursuant to state law. B. Definition: 1. For the purpose of this subchapter, an "invesm~ent backed expectation" is defined as the expenditure of substantial sun, s of money which cannot be recovered or an irreversible change of position that imposes on the applicant an obligation to expend substantial sums of money in the furore. 3-8 Subchapter 3 Development Code 2. For the purpose of this section, the "date of notice that the revised regulation is in progress" shall be when an amendment is posted on an agenda of fl~e Planning and Zoning Commission in accordance wifl~ state law. C. In considering whefl~er a development expectation may be processed under preexisting regulations, fl~e Director may consider: -5.-1~. Whefl~er fl~ere has been an act of fl~e City or an officer or agency of fl~e City upon which fl~e applicant in good faifl~ has relied to his detriment in a manner fl~at makes it inequitable to enforce fl~e temps of fl~e currently effective development regulations wifl~ respect to fl~e applicant's property. ~2_,_The extent to which fl~e applicant has, prior to fl~e date of notice fl~at the revised regulation is in progress made a substantial commitment of money or resources directly associated with physical improvements on fl~e land such as grading, land balancing, installation of utility infrastructure or off, er public in~provements, or for fl~e design of specific buildings and in~provements to be constructed on fl~e site. g. 3. The extent to which fl~e applicant has secured pemfits for, and commenced or completed, the construction of subdivision improvements and buildings in part but not all of a project fl~at was contemplated to extend over a period of months or years. 0.4. Whefl~er fl~e applicant prior to the date of notice fl~at the revised regulation is in progress has made contractual commim~ents to complete buildings and deliver title fl~ereto or occupancy thereof. ~5. Whefl~er prior to fl~e date of notice fl~at fl~e revised regulation is in progress fl~e applicant has incurred financial obligations to a lending institution, which, despite a fl~orough review of alternative solutions, fl~e applicant will be unable to meet unless he is pemfitted to proceed wifl~ fl~e proposed development. &6. Whefl~er enforcement of fl~e temps of fl~e currently effective development regulations will expose fl~e applicant to substantial monetary liability to flfird persons; or will leave fl~e applicant completely unable, after a fl~orough review of alternative solutions, to earn a reasonable remm on fl~e property. 9:7. Whefl~er the right of fl~e applicant to commence and complete fl~e proposed development may have been processed only with respect to an identifiable and discrete portion of fl~e proposed development. D. An applicant may commence and complete construction of a specific proposed project, or a portion fl~ereof, if fl~e applicant can demonstrate fl~at: 1. He owned the parcel proposed to be developed on fl~e date of notice fl~at revised regulation was in progress wifl~ respect to such parcel and fl~e specific development proposed for fl~e parcel was fl~en lawful and pemfitted. 2. Applying fl~e consideration set out in Paragraph C of tiffs subchapter, fl~e development expectations of fl~e applicant were reasonable and final when fom~ulated and invesm~ent-backed. 3. Requiting that fl~e applicant's property be developed in accordance with fl~e currently effective development regulations will, considering the invesm~ent of applicant prior to the date of notice fl~at rezoning is in progress, deprive fl~e applicant of a reasonable rate of remm on his invesm~ent. In detemfining fl~e reasonableness of fl~e proposed rate of return, fl~e following categories of expenditures shall not be included in fl~e calculations of the applicant's invesm~ent. a. Expenditures for professional services fl~at are unrelated to the design or construction of fl~e improvements proposed for fl~e projected development. b. Expenditures for taxes except for any increases in tax expenditures, which result from governmental approvals or fl~e construction of in~provements on fl~e property of fl~e applicant. c. Expenditures which fl~e applicant has allocated to fl~e particular proposed project but which fl~e applicant would have been obliged to incur as an ordinary and necessary business expense (for 3-9 Subchapter 3 Development Code example, employee salaries, equipment rental, chattel mortgage payments) had the plan for the particular project not been fom~ulated. General Provisions. 1. The fact fl~e property has been or is in a particular zoning classification under tiffs Chapter, or any prior Zoning Ordinance of fl~e City, shall not, in itself, establish fl~at an applicant may proceed to process fl~e application. 2. Any person, fim~, or corporation having an ownership interest in property may file an application for a detemfination of fl~e right to process fl~e application. The application shall contain such off, er infom~ation as fl~e Director may specify to make the detem~ination. 3. A detemfination of fl~e Director with respect to allow a pemfit to be processed under preexisting regulations shall expire and be of no furfl~er force or effect unless construction is actually commenced within one (1) year of fl~e date fl~e detem~ination is made. 4. Any person, fim~ or corporation, having an ownership interest in fl~e property, and claiming a right to commence and complete a specific proposed development who does not file an application for a detem~ination under this subchapter, within six (6) monfl~s of fl~e effective date of a revised regulation shall be deemed to have waived his right to seek such a detem~ination. 5. An applicant may appeal fl~e Director's detemfination within 10 days by filing an application as a Zoning Amendment as outlined in Section 35.3.4. C. 6. A detemfination fl~at a pemfit may be processed under preexisting regulations shall be treated as a special exception to fl~e underlying zoning regulation. 7. No application for local pemfit will be allowed for a Watershed Protection Pemfit. Requests for relief 35.3.9 must be made under Section 35.3.10. Religious Freedom Procedures. 35.3.10 A. A person may clain~ that a provision of the Denton Development Code substantially burdens the person's free exercise of religion. In making such a claim a person shall give written notice to the City by certified mail, remm receipt requested according to fl~e provisions of Texas Civil Practice & Remedies Code ~ 100.001, et. seq. (Vernon Supp. 2001). B. The City Council may grant a waiver or partial waiver of fl~e provisions of the Denton Development Code according to federal or state law to accommodate a person's free exercise of religion. Gas Well Permit Relief Provisions. A. The purpose of this provision allows a detemfination of whefl~er the application of the standards in the Denton Development Code as _applied to a Watershed Protection Pemfit and related development applications would, if not modified or off, er relief grante_d~ constitute a under constitutional standards. B. A property owner or his authorized agent may file an application for relief under tiffs subsection following final decision to deny or conditionally approve an application for a Watershed Protection Pemfit and related .applications within ten C. The Director has the authority to establish requirements for applications in fl~e Application Criteria Manual. No application shall be accepted for filing until it is complete and fl~e fee established by fl~e City Council of the City, of Denton has been paid. D. Upon approval of an application in whole or in part by the City, Council, fl~e Director shall process fl~e Watershed Protection Pemfih and related develQp__lB__e__n_t_:o_p_plications and the Director shall decide fl~e 3-10 Subchapter 3 Development Code applications consistent with the relief granted on the application, including any amendments to applicable standards __app_r_o_v_e_4_b¥_Ci_ty Council. E. A denial of an_application b_y__t_h__e_G_ty Council is a final detemfinafion. F. Criteria for _approval. In deciding whether to grant relief to fl~e ap_~_Le_GLty_ Council will consider whefl~er fl~ere is any evidence from which it can reasonably conclude fl~at fl~e application of all or ~gof fl~e standards governing approval of a watershed protection pemfit under fl~e Development Code will licant of all economically viable use of fl~e land,_b.a~.ed_.~pon fl~e following factors: 1. Whefl~er fl~e .Qperations pr~.posed are consistent wifl~ p.r.Q.te.g.~r!g, fl~e ecol environmental rotection of surface and ground ware sources impacted environmentally sensitive areas. 2. The nature and intensity, of the uses allowed following application of the standards in the Development Code to the watershed protection pemfit and related development applications, in comparison with the nature and intensity of the uses allowed without ap_plication of the standards; 3. Whefl~er fl~e standards of the Develo_pment Code when _applied to fl~e watershed protection p_e_~li_t and related development applications allow an economically viable use of fl~e land; 4. For applications in which it is alleged fl~at fl~ere has been a devaluation of property, whefl~er fl~e adoption or application of standards in this article is fl~e producing cause of any devaluation of fl~e p. ro_p~r~; 5. The extent to which the .applicant's e;~pectations for economically, viable uses have been realized through actual or anticipated development on land or an interest in land ori~lly part of the same tract or parcel as the land for which relief is sought under the application 6. The extent to which applicant has taken advantage of any other relief measures provided by this Code that would result in mi~gafion of economic iglpacts resulfing_£r_Qg!_:0_pplicafion of the standards in this Land Development Cod% 7. The extent to which the owner of the proper~ had actual or constructive notice of regulations or proposed changes in the standards governing watershed protection pemfits; 8. Unique circun~stances exist on the property on which the application is made related to size, shape, area, topography, surrounding conditions and location that do not apply to other proper~ in the vicinity,. 9. Whether there are other alternative well site locations. 10. Any clam for relief pursuant to Tex. Loc. Gov't. Code Chapter 245. G. In ~thg relief under the council may waive or modi~ the standards to be a~dto the watershed protection pem~it or related development applications, and may in, pose reasonable conditions on related development applications in order to implement the relief granted. The council also g!ay initiate an _application for a zoning_glap amendment in order to afford the relief_~a_n___t_e_d~_provided that such application shall be decided in accordance with section 35.3.4~bch:apter 3. In such case, tt~e. council's decision on the application shall not be considered final until the application for the zoning map amendment is decided. The action taken by the council under this section shall not deprive the planning and zoning commission or any responsible official of its final approval authori~ over subdivision plats and other development pemfits. H. No application for local pemfit under Section 35.3.8 will be allowed for a Watershed Protection Pem~it. 3-11 Exhibit B Subchapter 16 Development Code Subchapter 16 - Subdivisions. Sections: 35.16.1 Authority 35.16.2 Purpose. 35.16.3 Jurisdiction. 35.16.4 Application. 35.16.5 Compliance and Enforcement. 35.16.6 Approval of Plat Required. 35.16.7 Lots, Access and Common Areas. 35.16.8 Application and Fees. 35.16.9 Predesign Conference. 35.16.10 General Development Plan. 35.16.11 Preliminary Plats. 35.16.12 Final Plats. 35.16.13 Replat. 35.16.14 Amending Plat. 35.16.15 Minor Plat. 35.16.16 Vacating Plat. 35.16.17 Conveyance Plat. 35.17.18 Development Plats. 35.17.19 Gas Well Development Plats. 35.16.20 Cons truction. 35.16.1 Authority. This Subchapter is adopted under the authority of the constitution and laws of the State of Texas, including Chapters 42, 43 and 212 of the Local Government Code, as amended. 35.16.2. Purpose. This Subchapter is adopted for the following purposes: A. To protect and promote the public health, safety, and general welfare of the community. B. To guide and plan for the furore growth and development of the City by providing for the orderly development of land and for the extension of streets, utilities, and other public in~provements and facilities in accordance with The Denton Plan and the Denton Development Code. C. To insure that all developments provide for the streets, sidewalks, drainage facilities, water and sewer facilities and other public and private in~provements and facilities which are adequate and necessary to serve the development. 35.16.3 Jurisdiction. This Subchapter shall apply to all land and all developments within the territorial jurisdiction of the City of Denton, except as otherwise specifically provided for in tiffs Subchapter. The territorial jurisdiction of fl~e City shall be defined as follows: A. The area within the corporate limits of the City; B. The area within fl~e extraterritorial jurisdiction of fl~e City; and 16-1 Revised Jan 26, 2004 C: ~laholley\ Backup 2004~ CC Feb 17th\ SI03-0024 Gas Well Amendments \ 7 SI03-0024 Gas Well Amend ,(Exhibit B) Subchapterl6 Development C. 35.16.4 Code Any other area to which the provisions of this Subchapter are made applicable in accordance with and as permitted by federal, state or local law. Application. 35.16.5 A. Land Included. Except where otherwise specifically provided for in this Subchapter, all the provisions of this Subchapter shall apply to fl~e following lands located wiflfin the territorial jurisdiction of the City: 1. Any tract of land which has not been recorded by plat in fl~e plat records of Denton County, Texas, and which is intended to be sold, leased, or otherwise subdivided from another tract of land or which is intended or proposed to be used for fl~e purpose of development. 2. Any tract of land which has been recorded as a lot or block by plat in fl~e plat records of Denton County, Texas, prior to and upon which no development has been constructed or placed prior to fl~e effective date of this Subchapter. 3. The division of any previously platted lot into two (2) or more parts. 4. The removal of one (1) or more lot lines of any platted lot so as to permit fl~e combining of two (2) or more contiguous platted lots into one (1) or more new lots. B. Expiration of Dormant Projects. Any general development plan, preliminary plats, final plats, replats, amending plats, conveyance plats or development plats fl~at are dormant according to fl~e provisions of Tex. Loc. Gov't. Code Ann. Section 245.005 (Vernon 1999, as amended) shall expire on May 11, 2004. C. Environmentally Sensitive Areas (ESA) Regulations. The flood plain provisions of Subchapter 17 shall apply to any land wiflfin fl~e extraterritorial jurisdiction of fl~e City. D. Development Standards and Requirements in the Extraterritorial Jurisdiction. 1. The extraterritorial jurisdiction of fl~e City of Denton is classified into two (2) divisions as indicated on fl~e map on file in fl~e Planning and Development Department. a. M1 of fl~e provisions of this Subchapter governing subdivision and development standard for subdivisions wiflfin the city shall apply to all subdivisions and developments within Division 1. b. The subdivision and development standards of fl~e County of Denton, as such standards exist today or as they may hereafter be amended, shall apply to all subdivisions and developments in fl~e extraterritorial jurisdiction comprising Division 2 is not required and such subdivisions and developments must comply only wifl~ development or plat requirements of Denton County and state law. 2. The Planning and Development Department is directed to consider amendments to fl~e regulatory line map whenever fl~e certificate of public convenience and necessity for water and wastewater services is amended by fl~at state or when directed by fl~e City Council. Any amendments shall not be effective until fl~e revised regulatory line map is approved by fl~e City Council. Compliance and Enforcement. It shall be unlawful for any person to begin, continue, or complete any development on any land within the territorial jurisdiction of the City to which the provisions of this Subchapter applies, except in accordance with and upon compliance with the provisions of this Subchapter. 16-2 Subchapterl6 35.16.6 Development Code B. The City shall not issue a building pemfit or certificate of occupancy required by any Subchapter of the City for any land located wiflfin fl~e corporate limits to which tiffs Subchapter applies, until and unless fl~ere is compliance with this Subchapter. C. The City may refuse to authorize or make utility connections on fl~e grounds set forfl~ in Tex. Loc. Gov't. Code Ann. section 212.012 (Vernon 1988 & Supp. 1994), as amended. D. No in~provements shall be initiated until fl~e approval of the City has been given. Disapproval of a final plat by fl~e City shall be deemed a refusal by fl~e City to accept offered dedications shown fl~ereon. Approval of a final plat shall not be deemed an acceptance of fl~e proposed dedications and shall not impose any duty upon fl~e City concerning the maintenance or improvement of any such dedicated parts until fl~e proper authorities of fl~e City have both given fl~eir written acceptance of fl~e in~provements and have actually appropriated fl~e same by entry, use, or improvements. Approval of Plat Required. A. Prior to the subdivision, resubdivision, or development of any land within the City, or its extraterritorial jurisdiction, all plans, plats, and construction plans for public in~provements shall first be approved in accordance with these regulations except as follows: 1. The division of land into two (2) or more parts, other than for purposes of development, if the smallest resulting parcels, tract or site is forty (40) acres or larger in size. 2. Development on a single tract which was subdivided prior to January 1, 1960, and for which extension of streets or public improvements (excluding sidewalks) are not required to support the proposed development. 3. Construction of additions or alterations to an existing building where no drainage, street, utility extension or improvement, additional parking or street access changes required to meet the standards of this Subchapter are necessary to support such building addition or alterations. 4. Dedication of easement or right-of-way by separate document recordable in the County records if approved by City. 5. Cemeteries complying with all state and local laws and regulations. 6. Divisions of land created by order of a court of competent jurisdiction. 7. A change in ownership of a property through inheritance or the probate of an estate. B. No land may be subdivided or platted through the use of any legal description other than with reference to a plat approved by the Planning and Zoning Commission or the Development Review Committee Chaim~an in accordance with these regulations. C. Excepting agricultural leases, no land described in this section shall be platted or sold, leased, transferred or developed until the property owner has obtained approval of the applicable general development plan, preliminary plat, final plat, development plat, or conveyance plat from the Planning and Zoning Commission or the Development Review Committee Chaim~an as required by these regulations. D. No building pemfit or certificate of occupancy shall be issued for any parcel or tract of land until such property has received final plat or development plat approval and is in confom~ity with the provisions of these subdivision regulations, the plat has been recorded, public improvements have been accepted (if applicable), and no private in~provements shall take place or be commenced except in confomfity with these regulations. E. No person shall transfer, lease, sell or receive any part of a parcel before a conveyance plat or final plat of such parcel and fl~e remaining parcel has been approved by the Planning and Zoning Commission or fl~e 16-3 Revised Jan 26, 2004 C: Nlaholley\ Backup 2004N CC Feb 17th\ SI03-0024 Gas Well Amendments \ 7 SI03-0024 Gas Well Amend ,(Exhibit B) Subchapterl6 Development Code Development Review Committee Chairman in accordance with the provisions of these regulations and f-fled with the county clerk. The platting or subdivision of any lot or any parcel of land, by the use of metes and bounds description for the purpose of sale, transfer, lease or development is prohibited. 35.16.7 Lots, Access and Common Areas. 35.~6.8 A. Lot size. The size, width and depth of subdivision lots shall conform to the zoning requirements for the area. B. Access to street. Each lot shall be provided wifl~ adequate access to an existing or proposed public street. Development adjacent to existing public streets shall include fl~e required in~provements in accordance with the city's perimeter street policy. Each residential lot shall have a minimum of fifteen (15) feet of frontage along an existing or proposed public street and each non-residential lot shall have a minimum thirty (30) feet of frontage along an existing or proposed public street except as follows 1. Single Family Residential Private Drive. Up to three (3) single family residential dwelling units may access a public road by means of a flag drive within a private access easement as provided in the Transportation Criteria Manual. Each residential lot shall have a minimum of fifteen (15) feet of frontage on the private access easement. 2. Non-Single Family Residential Private Drive. Non-Single family residential lots within a subdivision or addition that is surrounded by developed property making it unfeasible to provide street connectivity, do not have to abut a public street if such lots have access to a public street by a public access and fire lane easement approved by the City. The easement must be at least 24 feet wide and constructed, marked and maintained to meet the standards for parking lots as contained in the Transportation Criteria Manual and for fire lanes as contained in the Fire Code. The stacking requirements for public streets shall apply to the public access and fire lane easement at the point where it intersects with a public street. In addition, the public access and fire lane easement shall be considered a driveway or curb cut access to the public street for all such lots. Each non-residential lot shall have a minin~un~ thirty (30) feet of frontage on the public access and fire lane easement. B. Facing. Wherever feasible, each lot should face the front of a sin~ilar lot across the street. In general, an arrangement placing facing lots at right angles to teach other should be avoided. C. Common area and facilities. Such area shall be noted on the plat and also have filed with county homeowner's association covenants approved by the city attorney or other arrangements for permanent maintenance of these areas and facilities as may be approved by the Planning and Zoning Commission. Application and Fees. Any person seeking approval of any general development plan, prelin~inary plat, final plat, replats, amending plats, minor plats, conveyance plat, or development plat for any land required by this Subchapter, shall submit an application accepted for filing by fl~e Director of Planning and Development, along wifl~ fl~e applicable fees. No applications for general development plan, prelinfinary plat, final plat, replats, amending plats, minor plats, conveyance plat or development plat shall be accepted for filing unless fl~e application, supporting docun~ents and fees are submitted in accordance wifl~ fl~e Application Criteria Manual. Applicants will be notified of fl~e acceptance or rejection of fl~eir application wiflfin 10 working days of fl~e submittal. The basis of fl~e rejection will be included in the notification. 35.16.9 Predesign Conference. A. Prior to the filing of any plan, plat or proposed development, an applicant shall have a pre-design conference wifl~ fl~e Development Review Committee, unless waived by fl~e Development Review 16-4 Subchapterl6 35.16.10 Development Code Committee chairperson. The purpose of the conference is to allow the applicant and Development Review Committee to review and discuss the proposed development, to make a detemfination of what infom~ation and studies may be required to be submitted during the plat procedures, and to receive or exchange any other infom~ation or take any other action necessary to facilitate processing of the plat application. Each applicant shall submit such infom~ation that may be required by the Development Review Committee and as provided in the Application Criteria Manual. General Development Plan. A. Purpose. The purpose of the general development plan is to provide for review of certain developments for compliance with The Denton Plan, the Denton Development Code, and Infrastructure Master Plans, the compatibility of land uses, and the coordination of improvements within and among individual parcels of land or phases of development, prior to approval of a prelinfinary plat or conveyance plat. B. Application. The Development Review Committee shall detemfine during the predesign conference whether a general development plan or a preliminary plat shall be required in accordance with the purpose stated in tiffs Subchapter. When a development is a portion of a large tract under one (1) ownership, is developed in phases or was not legally subdivided, fl~e developer may be required to submit a general development plan for review and approval by fl~e Planning and Zoning Commission. Generally, a general development plan shall be required for, but is not linfited to, any development which: 1. If the property under consideration is undeveloped, is under one ownership and is greater than twenty (20) acres; or 2. Is to be platted and developed in phases; or 3. Will require off-site road, drainage, or utility connections or in~provements which will have a substantial impact or effect on off, er properties or developments. C. Information required. The general development plan shall contain such infom~ation that may be required by the Development Review Committee which is reasonably necessary to review and detem~ine whefl~er fl~e proposed development and required facilities meet fl~e requirements of tiffs Subchapter and fl~e Application Criteria Manual. D. Standards for approval. The Planning and Zoning Commission shall approve the general development plan if fl~e plan complies with the following statements: 1. Confom~s to infrastructure policies identified in The Denton Plan, and any off, er City infrastructure master plan and fl~e City's current and furore parks and playground facilities:-.,. 2. Confom~s to the extension of fl~e City's infrastructure within fl~e municipality and in its extraterritorial jurisdiction, as identified in The Denton Plan, and any off, er City of Denton infrastructure master plan. 3. Confom~s to any roles adopted under Section 212.002 or as set forfl~ in the Application Criteria Manual. 4. Complies with all City construction standards. 16-5 Revised Jan 26, 2004 C: ~laholley\ Backup 2004~ CC Feb 17th\ SI03-0024 Gas Well Amendments \ 7 SI03-0024 Gas Well Amend ,(Exhibit B) ~\(~ Subchapterl6 Development 35.16.11 Code 5. Complies with all applicable laws and Subchapters. Planning and Zoning Commission Action. The general development plan shall be submitted, along with the applicable fee, in the number and form specified by the Application Criteria Manual. The plan shall be submitted to and reviewed by the Development Review Committee for its recommendation to the Planning and Zoning Commission. No preliminary plat for any portion of the development shall be approved until and unless the required general development plan has been approved by the Planning and Zoning Commission. Expiration of General Development Plans. A general development plan shall become null and void twenty-four (24) months after its approval, unless a prelin~inary plat is approved for all or part of the general development plan. The approved preliminary plat shall extend the expiration date for the remaining portion of the original general development plan for a period of twenty-four (24) months. The applicant may submit written requests for extensions of the general development plan, with no single extension exceeding twelve (12) months. The request shall contain docun~entation showing costs incurred to justify an extension. Preliminary Plats. Purpose and applicability. A prelinfinary plat shall be required for all proposed developments or subdivisions of land, except where otherwise provided for in this Subchapter. The required preliminary plat is intended to provide sufficient information to evaluate and review the general design of the development to insure compliance with The Denton Plan, the Denton Development Code, and the Thoroughfare Plan, and the requirements of this Subchapter. Where a general development plan is required, the preliminary plat shall conform to the approved development plan. Contents of Preliminary Plat. The preliminary plat shall contain such information as may be required by the Development Review Committee which is reasonably necessary to review and determine whether the proposed development and required facilities meet the requirements of this Subchapter and as required by the Application Criteria Manual. Procedure for approval. 1. Submittal. The application, copies of the preliminary plat, and all required studies and analyses, along with any applicable fee, shall be submitted in the form and number specified by the department. An application shall not be considered filed until it has been accepted for filing by the Department. Applicants will be notified of the acceptance or rejection of their application within 10 working days of the submittal. Basis of the rejection will be included in the notification. 2. Development Review Committee review. After the Department has accepted the application for filing the Development Review Committee shall review the preliminary plat for compliance with the requirements of this Subchapter. The applicant shall be afforded an opportunity to meet with the Development Review Committee to receive comments and recommendations on the sufficiency of the plat. The applicant may make any recommended or desired changes, corrections, or modifications. The Development Review Committee shall forward the prelinfinary plat to the Planning and Zoning Commission along with its recommendation. 3. Standards for approval. The Planning and Zoning Commission shall approve the preliminary plat if the plat complies with the following statements: a. Conforms with the general development plan as provided in this Subchapter. 16-6 Subchapterl6 35.16.12 Development Code b. Confom~s to The Denton Plan, its land uses, and its current and furore streets, alleys, parks, playgrounds, and public utility facilities. c. Confom~s to The Denton Plan for the City's furore land uses, extension of the City's roads, streets, and public highways within the municipality and in its extraterritorial jurisdiction, taking into account access to and extension of sewer and water mains and the instrumentalities of public utilities. d. Complies with all applicable sections of the Criteria Manuals. e. Complies with all applicable laws and Subchapters. Planning and Zoning Commission Action. If the preliminary plat does not meet the requirements of this Subchapter, the Planning and Zoning Commission shall disapprove the plat or approve the plat with conditions to insure compliance with the requirements of this Subchapter. If the preliminary plat is disapproved, no further action shall be taken on the application, until and unless a new application and preliminary plat is submitted in accordance with this Subchapter. Expiration of Preliminary Plat. Except for prelinfinary plats filed prior to the effective date of this amendatory Subchapter, a prelintinary plat shall become null and void within twenty-four (24) months after its approval, unless a final plat is filed and approved for all or part of fl~e prelinfinary plat within that time. The applicant may submit a written request, to fl~e commission, for one six (6) monfl~ extension of fl~e prelinfinary plat. The request shall contain documentation showing costs incurred to justify an extension. An approved final plat shall extend the expiration date for the remaining portion of the original prelinfinary plat for a period of six (6) months after fl~e date of approval of fl~e final plat. Approval of a subsequent final plat wiflfin such period shall extend the expiration date for fl~e portion of fl~e original prelinfinary plat for which no final plats have been approved for an additional six (6) months from the date of approval of such final plat. Each extension period for fl~e expiration of fl~e original prelinfinary plat runs from fl~e date of fl~e latest final plat approval. Extension periods are not cun~ulative. If a final plat is not filed and approved during fl~e extension period, fl~e original prelinfinary plat, together wifl~ any unapproved final plat applications or expired final plats, lapse. Final Plats. A. Purpose and Applicability. A final plat of the property to be subdivided or developer is required of all developments to which this Subchapter applies. The final plat is intended to serve as the official recorded map of the property to be developed, showing thereon the boundaries, lots, public streets and easements and other significant public facilities and features which are necessary to serve the development, as required by this Subchapter. For a development to be constructed in phases, the final plat may include only a portion of the land included in the prelinfinary plat and general development plan. The final plat shall confom~ to the approved preliminary plat. B. Land Excluded. l. Where any requirement of tiffs Subchapter is detem~ined in reference to the boundary of the property, such as the requirement to in, prove existing perimeter streets, the final plat may not exclude land which could otherwise be included for the purpose of avoiding the requirement, or if such property is pemfitted to be excluded for good reason, fl~e requirement may still be imposed if compliance wifl~ fl~e requirement is reasonably necessary to serve the property. 16-7 Revised Jan 26, 2004 C: ~laholley\ Backup 2004~ CC Feb 17th\ SI03-0024 Gas Well Amendments \ 7 SI03-0024 Gas Well Amend ,(Exhibit B) Subchapterl6 Development Code 2. In no case shall a final plat exclude land so as to leave a remainder of such size, shape, or location as not to be developable in substantial compliance with the requirements of this Subchapter or any other Subchapter. 3. Where any applicant seeks approval of a proposed plot for land that was subdivided in violation of this Subchapter, state law, or any prior Subchapter, or the development cannot provide adequate street access, street connections, or substantially comply with any other requirement or standard of this Subchapter because of the unlawful subdivision, the Planning and Zoning Commission may refuse approval of the development or plat. Contents of Final Plat. The final plat shall contain such information as may be required by the Development Review Committee which is reasonably necessary to review and determine whether the proposed development and required facilities meet the requirements of this Subchapter and as required by the Application Criteria Manual. 35.16.12.1 A. Construction Plans. Purpose and Applicability. Construction plans shall be submitted to the department for all existing or proposed streets, sidewalks, drainage and utility in~provements, and any other public in~provements that are required or proposed to be constructed, reconstructed, in, proved, or modified to serve the development. Where the final plat is for property being developed in phases, the required construction plans shall include the in~provements specified in the general development plan or prelin~inary plat to serve the phase being platted. The construction plans are intended to provide for the detailed engineering drawings for all improvements required to serve the development. The construction plans shall be kept as a permanent record of the City. Responsibility of Project Engineer. The Professional Engineer representing the applicant is responsible for the accuracy, completeness and conformance to City standards. The purpose of the City review is to ensure conformance to City policies and standards. However, the City review is linfited to facts as presented on submitted plans. The City has no project design or engineering responsibility. The Design Professional certifying the plans is responsible for the accuracy and completeness of the documents submitted for review and actual construction. The City reserves the right to require corrections to actual conditions in the field which are found to be contrary to or omitted from submitted plans. Contents of Construction Plans. The construction plans shall include such information as may required by the Development Review Committee which is reasonably necessary to review and determine whether the proposed development and required facilities meet the requirements of this Subchapter and as required by the Application Criteria Manual and all City construction standards. 35.16.12.2 A. Processing Procedure for Final Plat and Construction Plans. Submittal. The application and copies of the final plat and construction plans, along wifl~ any applicable fee, shall be submitted in fl~e form and number specified in the Application Criteria Manual. Development Review Committee Review. The Development Review Committee shall review fl~e final plat and construction plans for compliance wifl~ fl~e requirements of tiffs Subchapter. The applicant shall be afforded an opportunity to meet wifl~ fl~e committee to receive its comments and recommendations on fl~e sufficiency of the plat and plans, so as to allow fl~e applicant to make any recommended or desired changes, corrections, or modifications. Upon completion of fl~e review process, if the construction plans have been approved by fl~e Director of Engineering, fl~e Development Review Committee shall forward fl~e final plat to fl~e Planning and Zoning 16-8 Subchapterl6 Development Code Commission along with its recommendation unless approval by the Development Review Committee is allowed by this Subchapter and as pemfitted by law. Standards for Approval. The Planning and Zoning Commission shall approve the final plat if the plat complies with the following statements: 1. Confom~s to The Denton Plan, its land uses, and its current and future streets, alleys, parks, playgrounds, and public utility facilities. 2. Confom~s to The Denton Plan for the City's furore land uses, extension of the City's roads, streets, and public highways within the municipality and in its extraterritorial jurisdiction, taking into account access to and extension of sewer and water mains and the instnm~entalities of public utilities. The final plat confom~s with the General Development Plan and/or the prelinfinary plat. of public in~provements of City 4. Complies with the provisions for dedication and construction construction standards. 5. Complies with all applicable laws and Subchapters. Planning and Zoning Commission Action. The Planning and Zoning Commission shall take action on the final plat as required by law at a regularly scheduled meeting held within thirty (30) days of the date the final plat and construction plans for which approval is requested is submitted to the deparm~ent, unless the applicant requests and consents in writing to waive any time deadline for action upon the plat. If the final plat meets all the requirements of this Subchapter, the Planning and Zoning Commission shall approve the plat. If the plat does not meet the requirements of this Subchapter, the Planning and Zoning Commission shall disapprove the plat. Certification by Engineer. Sealed engineering plans showing details of streets, sidewalks, culverts, bridges, stom~ sewers, drainage improvements, water mains, sanitary sewers, other required public improvements, and all engineering details, other than buildings, of the proposed subdivision shall be submitted to the Development Review Committee along with the final plat of subdivision. Such plans shall be prepared by an engineer registered in the State of Texas, and shall confom~ to the standard specifications of the City (North Central Texas Council of Governments Standard Specifications for Public Works Construction, as amended by City) relating to such in~provements. Expiration of Final Plat and Plans. An approved final plat which has not been filed in the appropriate records of Denton County within two (2) years of its approval shall be considered null and void unless an extension is granted by the Planning and Zoning Commission for good cause 35.16.12.3 Recordation of Final Plat. Upon approval of the final plat by the Planning and Zoning Commission or the Development Review Committee, whichever is applicable, and the construction plans by fl~e City Engineer, fl~e applicant shall submit an execution package in accordance wifl~ fl~e Application Criteria Manual. The City Engineer shall file in fl~e plat records of Denton County fl~e final plat upon submission of the execution package, recording fees, developer contracts, bonds, and any other applicable fees. 16-9 Revised Jan 26, 2004 C: Nlaholley\ Backup 2004N CC Feb 17th\ SI03-0024 Gas Well Amendments \ 7 SI03-0024 Gas Well Amend ,(Exhibit B) Subchapterl6 Development Code 35.16.13 Replat. A. Replat Required. Unless otherwise expressly provided for in this Subchapter, a property owner who proposes to replat any portion of an approved final plat, oflmr than to amend or vacate the plat, must first obtain approval for the replat under tim same standards and by the same procedure prescribed for the platting of land by flmse regulations. B. Replatting Without Vacating Preceding Plat. A replat of a subdivision or part of a subdivision may be recorded and is controlling over the preceding plat without vacation of that plat if the replat is submitted in accordance with Tex. Loc. Gov't. Code Ann. sections 212.014 (Vernon 1988) and 212.015 (Vernon 1988 and Supp. 1994), as amended. C. Replatting a Portion of a Lot. Replatting a portion of a recorded lot is not pem~itted. D. Procedures. An application for replat shall follow the Planning and Zoning Commission procedures detailed in Subchapter 3. 35.~6.~4 Amending Plat. The Chaim~an of the Development Review Committee may approve an amending plat pursuant to Tex. Loc. Gov't. Code Ann. section 212.016 (Vernon Supp. 1994), as amended. The Chaim~an of the Development Review Committee at his discretion may refer the amending plat to the Planning and Zoning Commission. The Chaim~an of the Development Review Committee shall not disapprove an amending plat but shall refer such plat to the Planning and Zoning Commission if he recommends disapproval. 35.16.15 Minor Plat. The Chaim~an of the Development Review Committee or the Planning and Zoning Commission may approve a minor plat pursuant to Tex. Loc. Gov't. Code Ann. section 212.00065 (Vernon Supp. 1994), as amended. The Chaim~an of the Development Review Committee at his discretion may refer the minor plat to the Planning and Zoning Commission. The Chaim~an of the Development Review Committee shall not disapprove a minor plat but shall refer such plat to the Planning and Zoning Commission if he recommends dis approval. 35.16.16 Vacating Plat. The property owner of the tract covered by a plat may vacate the plat pursuant to Tex. Loc. Gov't Code Ann. section 212.013 (Vernon 1988). The Planning and Zoning Commission shah approve the petition for vacation on such temps and conditions as are reasonable to protect public health, safety and welfare. As a condition of vacation of the plat, the Planning and Zoning Commission may direct the petitioner to prepare a revised £mal plat in accordance with these regulations. Regardless of the Planning and Zoning Commission's action on the petition, the property owner or developer will have no right to a refund of any monies, fees or charges paid to the City nor to the remm of any property or consideration dedicated or delivered to the City except as may have previously been agreed to by the Planning and Zoning Commission. 35.16.17 Conveyance Plat. A. Purpose. 16-10 Subchapterl6 Development Code A conveyance plat may be used solely for fl~e purpose of subdividing land and the recording of same, or recording a single existing lot or parcel created by off, er means. A conveyance plat may be used to convey fl~e property or interests fl~erein; however, a conveyance plat does not constitute approval for development of fl~e property. A conveyance plat is an interim step in the subdivision of land and shall contain a notation fl~at indicates fl~at no development is intended. Applicability. A conveyance plat may be used in lieu of a final plat to record fl~e subdivision of property, provided fl~at no portion of fl~e development is intended for inm~ediate development. Filing. No final plat processed and approved in association wifl~ a conveyance plat shall be fried without fl~e concurrent filing of the associated approved conveyance plat. 35.16.17.1 A. Effect of Approval. Conveyance plat approval and acceptance by the City does not relieve the owner from obligations, including fees, required by other sections of this or any other Chapter of the City Code pertaining to the improvement of the property or extension of services as required to make the property suitable for development. B. Neither reservation nor dedication of right-of-way shall relieve the property owner from any obligation for street construction or assessments associated with public street improvement programs. Easements for access, utilities and drainage may be recorded on conveyance plats. C. No building pemfits shall be issued nor development beg/n, nor pem~anent utility service provided for land which has only received approval as a conveyance plat. This infom~ation shall be set forth in bold type on the plat. D. A conveyance plat may be vacated, replatted or superseded in total or in part by fl~orough compliance wifl~ fl~e procedures and requirements of tiffs Subchapter. 35.16.17.2 Conveyance Plat Requirements. A. Application. The property owner shall submit an application for a conveyance plat, together with other supporting documents and fees, to the director in accordance with the requirements of the Application Criteria Manual. Conveyance plats that qualify as minor plats may be approved by the Chaim~an of the Development Review Committee. A conveyance plat shall contain such infom~ation that may be required by the Development Review Committee which is reasonably necessary to review and detem~ine whether the proposed development and required facilities meet the requirements of this Subchapter and as required by the Application Criteria Manual. B. Standards for Approval. The Planning and Zoning Commission shall approve the conveyance plat if the plat complies with the following statements: 1. Reservation of rights-of-way. Conveyance plats must identify any furore rights-of-way for public thoroughfares and streets specified on the City's thoroughfare plan. The identification of the right-of- way does not grant any right or interest in the property to the City or other entity. The final alignment may be adjusted upon final platting in order to meet engineering design standards. 2. Dedication of rights-of-way. Dedication of right-of-way shall be required where a conveyance plat is used to record the remainder of a tract created by the final platting of a portion of the property. The required right-of-way dedication shall be limited to that which is necessary to provide access to the 16-11 Revised Jan 26, 2004 C: ~laholley\ Backup 2004~ CC Feb 17fl~\ SI03-0024 Gas Well Amendments \ 7 SI03-0024 Gas Well Amend ,(Exhibit B) Subchapterl6 Development Code property proposed for final plat approval and to complete mm lanes, intersections and transitions in road pavement width resulting from development of property proposed for final plat approval. Approval Procedure. 1. Conveyance plats shall be approved provided they comply with all reqtfirements of this Subchapter. The Planning and Zoning Commission must approve, approve with conditions that insure compliance with the reqtfirements of this Subchapter or deny a conveyance plat no later than flfirty (30) days from fl~e date of application. A conveyance plat qualifying as a minor plat shall be reviewed and acted upon by fl~e Development Review Committee. Signing and filing. After fl~e approval of the conveyance plat by fl~e Planning and Zoning Commission or Development Review Committee, fl~e property owner or his engineer shall submit filing fees and fl~e required nun~ber of copies for filing to fl~e City for filing wifl~ fl~e county. Having submitted all copies and fees, fl~e owner may request a delay of filing for up to one hundred eighty (180) days from fl~e date of approval. Any conveyance plat which has not been filed wifl~ fl~e county wiflfin one hundred eighty one (181) days of fl~e date of approval shall be void. Prior to filing with fl~e county, fl~e property owner may wifl~draw and void a conveyance plat. Any conveyance plat withdrawn or voided must be resubmitted under current regulations and procedures and reapproved by fl~e Planning and Zoning Commission or Development Review Committee and filed wifl~ fl~e county. Prior to filing, fl~e chairperson of fl~e Planning and Zoning Commission or fl~e Development Review Committee, whichever is applicable, shall sign fl~e conveyance plat. The City engineer shall forward one (1) copy of fl~e recorded conveyance plat to fl~e property owner. 35.16.18 Development Plats. A. Any person who proposes new development of a tract of land located with the corporate linfits or within fl~e City's extratemtorial jurisdiction, and is not required by tiffs Subchapter to prepare a preliminary or final plat, shall prepare a development plat in accordance with elements required for preliminary and final plats by tiffs Subchapter unless: 1. The development is excepted under section 35.16.7; or 2. The development is an addition or alteration to existing development which after development would result in development no less complying wifl~ fl~e code of Subchapters fl~an before fl~e development. C. Development plats shall be processed in accordance with V.T.C.A., Local Government Code ~ 212.041 fl~rough 212.050 (Vernon Supp. 1994) and no new development may begin on property until fl~e development plat is fried and approved by fl~e City in accordance with such sections. D. Development plats shall be labeled "Development Plat for Addition." E. If improvements have not commenced as required by fl~e Development Plat, an approval for a Development Plat shall expire two (2) years from the date fl~at fl~e Development Plat is approved by fl~e Planning and Zoning Commission. 35.16.19 Gas Well Development Plats. Plats Required Any person who proposes drilling and gas production of natural gas on a tract of land located within the corporate lin~its or within Division i of the City's Extraterritorial Jurisdiction, and icqs not required by this Subchapter to prepare a preliminary plat or final plat, shall prepare a Gas Well Development Plat. X~There any portion of land to be included within the area to be platted is located within a floodplain, an ESA or within 1200 feet of the flood pool elevation of Lake Ray Roberts or Lake Lewisville, a separate plat shall bc...p.repared for such area. The .applications may be submitted and reviewed t.<)gether. 16-12 Subchapterl6 Development Code Gas Well Development Plats in Areas Subject to Flooding No Gas Well Development Plat shall be approved for land located within a floodplain, an ESA or within 1200 feet of the flood pool elevation of Lake Ray Roberts or Lake Lewisville until a Watershed Protection Pemfit and ecific Use Pemfit or application for relief pursuant to Subsection 35.3.10. have been first approved. Denial or conditional approval of the applicable Watershed Protection Pemfit or petition for review shall constitute grounds for denial or conditional approval of the Gas Well Development Plat for such land. Procedures Gas Well Development Plats shall be processed and approved in accordance with Tex. Loc. Gov't Code Ann. ~212.041 through 212.050 (Vernon 1999) and no new natural gas development may begin on property until the Gas Well Development Plat is fried and approved by the City in accordance with this Subchapter. Standards for &p_proval Gas Well Development Plats shall confom~ to the following standards: ~1. All proposed gas well development shah be in compliance with the Roadway Component of the Mobility Plan. &.2. Erosion control is required and shall comply with all local, state and federal requirements or as required by the Watershed Protection Pemfit or Gas Well Development Plat. The operator shall file a copy of fl~e Stom~water Pollution Plan if required by fl~e EPA. 43. Reserve pits closcr thanwifl~in 200 feet of a bod~r, creek or floodplain, lakc, crcck or strcmm shah be lined to prevent water pollution. g4. Wifl~ the exception of vehicular access, no gas well development or activity is allowed in fl~e FEMA designated 100-year floodway. Drilling within a Flood Fringe or other ESA shown on the Map adopted by fl~e City is allowed under fl~e restrictions set forfl~ in Subsection 35.22.5(A)8.devdop~en* 5. Where tree mitigation is reqN.~.O,...pursuant to a Watershed Protection Pem~it,....~¥ funds due shall be paid prior to final approval of a Gas Well Development Plat. 6. At fl~e gme of pem~it for property inside city limits; p_Prior to approval of a Gas Well Development Plat or Gas Well Pemfit, a Road Repair Agreement that will obligate operator (or by the operator's employees, agents, contractors, subcontractors or representatives) in the perfom~ance of any activity authorized by or contemplated by the approved Gas Well Development Plat, must be executed by the City of Denton. The City Manager shall have the authority to enter into the Road Repair Agreement. A Road Repair Agreement is not required if access to the well site is fl~rough an entrance off~ffrom a State Highway. 7. The Gas Well Development Plat shah provide for ade ublic facilities, which may include water supply, access roads, drainage, erosion control and other necessary, supporting facilities identified on the Plat. The design, location, and arrangement of all driveways and required parking _s_paces shallprovide for the safe and convenient movement of vehicular and pedestrian traffic without adverse ublic or adjacent developments. ~.8. In addition to the requirements of Section 35.16.11 (preliminary plat), if applicable, a Gas Well Development Plat shall: 16-13 Revised Jan 26, 2004 C: ~laholley\ Backup 2004~ CC Feb 17th\ SI03-0024 Gas Well Amendments \ 7 SI03-0024 Gas Well Amend ,(Exhibit B) Subchapterl6 Development Code a. Identify truck routes and access points. b. Identify Environmentally Sensitive Areas (ESA's) including floodplains and any proposed floodplain, creek and stream crossings. i All floodplain, creek and stream crossings requiring the use of a culvert shall be designed to a 10-year stom~ frequency. ii All floodplain crossings shall have no negative affects on surrounding property. iii A drainage study sufficient to substantiate i and ii will be required as part of the submittal if crossings are proposed. c. Show the location and use of all structures within 500 feet of the wellhead. d. Identify the proposed source of water and any other public utilities required. e. Identify and show proposed method of erosion control. f. Identify the location of proposed lease lines and well locations. i Label distance between wells and property lines. ii Label distance between wells and structures within 500 feet of wells as measured from the property line. iii Label distance between temporary holding ponds and floodplains. g. Provide typical well site schematics showing layout during drilling and upon completion of drilling. h. Show location of all proposed underground pipelines. As built drawings shall be filed with the City. All pipelines proposed in public right-of-ways shall require a Right-of-Way Use Agreement. The City Manager shall have the authority to enter into a Right-of-Way Use Agreement. i. Identify if pipelines connect with a Gas Distribution System. Expiration of Gas Well Development Plat. 1. A Gas Well Plat requiring a Watershed Protection Pemfit shall expire on the earlier of the below two (2) year expiration date or upon the expiration of a Watershed Protection Pemfit. 2. If improvements have not commenced as required by the Gas Well Development Plat, an approval for a Gas Well Development Plat shall ears from the date that the Gas Well Development Plat is approved. The applicant may submit a written request for one six (6) monfl~ extension of fl~e Gas Well Development Plat prior to fl~e expiration date. The request shall contain docun~entation showing costs incurred to justify an extension. 3. Following expiration of a Gas Well Development Plat no furfl~er gas well drilling and production shall be allowed on fl~e land sublect to fl~e expired plat. 35. ~6.20 Construction. Improvements related to plat approvals shall comply with the following. 35.16.20.1 Pre-construction Phase Procedures and Requirements. Prior to beginning construction of public in~provements the City Engineer shall schedule a preconstruction conference between the owner/applicant and applicable City deparm~ents. Representatives of public and franchise utilities shall be notified and maybe required by the City to review the proposed improvements to be made and the requirements of this Subchapter. 16-14 Subchapterl6 Development Code 35.16.20.2 A. Development Contract Required. For all developments in which streets, drainage facilities, water or sewer lines or other improvements are to be constructed and dedicated or conveyed to fl~e public, a development contract is required to ensure proper construction and completion of fl~e in~provements and payment is made. The developer shall submit fl~e development contract, along with all required documents in conformity with all City construction standards. 35.16.20.3 Construction, Inspection, and Acceptance. The construction, inspection of construction, and acceptance of public in~provements after completion shall be approved by the City Engineer if the construction conforms to the requirements of all City construction standards. 35.16.20.4 Cost of Improvements and City Participation. The applicant shall make all required improvements, at his expense, according to City regulations, without reimbursement by the City, except for certain reimbursable costs as provided in Sections 35.21.9 and 35.21.10. 35.16.20.5 Subdivider to Extend Mains and Streets to Subdivisions. If the existing City mains and/or streets are not within or adjacent to a subdivision, the developer shall construct the necessary extension as specified in this Subchapter. These mains or streets shall be constructed in accordance wifl~ fl~e master plan of fl~e City. These facilities shall be in public easements, secured and paid for by fl~e developer. Such easements must be recorded as required by law before service is extended to fl~e subdivision. 35.16.20.6 Plat Required Before Issuance of Building Permits. A building permit shall not be issued for any property unless a final plat is recorded for that property. 16-15 Revised Jan 26, 2004 C: ~laholley\ Backup 2004N CC Feb 17th\ SI03-0024 Gas Well Amendments \ 7 SI03-0024 Gas Well Amend ,(Exhibit B) Exhibit C Subchapter 17 Development Code Subchapter 17 - Environmentally Sensitive Areas. Sections: 35.17.1 35.17.2 35.17.3 35.17.4 35.17.5 35.17.6 35.17.7 35.17.8 35.17.9 35.17.10 35.17.11 35.17.12 35.17.13 Purpose. Application. Environmentally Sensitive Areas Review. Environmentally Sensitive Area Classifications. Official Maps. Developed Floodplain Development Standards. Undeveloped Floodplain Development Standards. Riparian Buffer and Water Related Habitat Development Standards. Upland Habitat Development Standards. General Design and Improvement Standards. Clustering Standards Development Incentive Standards. Alternative Proposals. 35.17.1 Purpose. This Subchapter is adopted for the following purposes: A. Manage and protect environmentally sensitive areas wiflfin fl~e City as well as detail such areas fl~at have been previously identified in The Denton Plan. B. Protect fl~e natural and ecological resources fl~at are essential elements of the City's healfl~ and commtmity character and which provide irreplaceable plant and wildlife habitat; C. Establish a development framework for fl~e City fl~at is respective of private property rights, while encouraging fl~em to be used responsibly for fl~e benefit of fl~e entire commtmity; D. Preserve and enhance fl~e City's distinctive community character and quality of life by ensuring fl~at its natural and built environments are consistent wifl~ fl~e commtmity vision and values embodied in The Denton Plan. E. Establish regulations fl~at confom~ to the requirements of fl~e state and federal government regarding air quality, water quality and environmental protection. F. This subchapter is adopted pursuant to authority vested under fl~e City's charter, and Tex. Loc. Gov't Code_,__C_!~4p_t_e_x_s__2_!j_, 212 and 401 35.17.2 Application. A. The standards of this Subchapter shall apply to all land and all development within the within the corporate linfits of fl~e City, except as otherwise specifically provided for in this Subchapter. B. The floodplain standards of tiffs Subchapter shall apply to all land and all development within the extraterritorial jurisdiction of fl~e City. C. The type of regulation applicable to fl~e land depends upon fl~e classification in which fl~e land is placed, as provided in tiffs Chapter. If fl~ose regulations conflict wifl~ off, er regulations of this Subchapter, the more stringent of fl~e two regulations shall apply. 17-1 Subchapterl7 Development Code 35.17.3 Environmentally Sensitive Areas Review. A. Review Required. Environmentally Sensitive Areas Review is required for all development except for the following. Application for an Environmentally Sensitive Area Review can be made in conjunction with a Site Review required under Subchapter 13. 1. Property fl~at does not contain any environmentally sensitive areas as depicted on fl~e City's Environmentally Sensitive Areas Map. 2. Grading, filling, cutting or off, er earth-moving activity on any lot involving less fl~an fifty (50) cubic yards; 3. Activities such as ordinary maintenance and landscaping operations, individual home gardens, repairs, and additions or minor modifications of a single-family dwelling, except as required by fl~e Development Code. 4. Development of single-family homes at a density of one home for 2 acres or more shall be pemfitted and shall be subject to fl~e following restrictions: a. The home shall not be located in the Environmentally Sensitive Areas. b. Clustering is required where more fl~an one home is pemfitted within a development in order to preserve the greatest extent of the Environmentally Sensitive Areas. c. The dwelling shall be in compliance wifl~ all other development regulations. d. Septic tanks, septic tank drain fields, and off, er fom~s of on-site wastewater tream~ent shall not be built within the Environmentally Sensitive Areas. 5. The applicant can demonstrate to fl~e Director of Planning and Development's satisfaction fl~at fl~e subject property contains no Environmentally Sensitive Areas. B. Completed Application Required. A completed application for Environmentally Sensitive Areas Review shall contain fl~e following: 1. A plan containing fl~e following infom~ation: a. Locations and extent of all Environmentally Sensitive Areas as defined in tiffs Subchapter. Mapping of Environmentally Sensitive Areas shall be based on the Denton Environmentally Sensitive Areas Map and fl~e text of tiffs Subchapter, but may also be supplemented by gafl~efing and reviewing docun~entation such as: field verification, Section 404 wetland pemfit delineation, aerial photography, FEMA reports fl~at delineate and identify Environmentally Sensitive Areas. b. A detem~ination, by fl~e U.S. Am~y Corps of Engineer or a qualified environmental scientist wifl~ a delineation certified by the Corps, of the presence or absence of jurisdictional wetlands and waters of the U.S., and an indication of fl~e location of any jurisdictional wetlands. c. Culverting or bridges and associated land disturbances in confom~ance wifl~ fl~e Drainage Criteria Manual. d. Building envelopes for new or redevelopment parcels fl~at include concept plans for fl~e buildable area. 2. Additional plans and studies as required in fl~e applicable sections of tiffs Subchapter. C. Criteria for Approval. The following criteria shall be used for fl~e management and protection of Environmentally Sensitive Areas: 17-2 Subchapterl7 35.17.4 Development Code 1. Environmentally Sensitive Area Standards. The Director of Planning and Development shall approve the proposed development when the Applicant demonstrates the land development activity is in compliance with the requirements of this Subchapter for floodplains, Riparian Buffers, Water Related Habitat, and Upland Habitat and all other federal, state or local laws. The applicant shall meet the following requirements: a. The Environmentally Sensitive Areas have been properly identified and indicated on the required plan. b. The land disturbing activity will not cause damage to Environmentally Sensitive Areas located on property adjacent to the areas of disturbance. c. The land disturbing activity is in compliance with the requirements of this Subchapter and Subchapter 18. d. If jurisdictional wetlands are detem~ined to be present by the U.S. Am~y Corp of Engineers or a wetland delineator certified by them, a Section 404 Pemfit or Letter of Pemfission from the Corps shall be required before approval of the Environmental Review. 2. The specific delineation of the Environmentally Sensitive Area will be detemfined as part of the review by the Director of Planning and Development based on the best available data. Expiration. The Environmentally Sensitive Area Review approved by the Director shall expire one year after the date of approval unless the applicant has made application for a £mal plat for the development. The Environmentally Sensitive Area review shall expire when final plat approval expires. Credit. Any Environmentally Sensitive Area tl~at is protected may be used towards meeting tl~e Landscape and Tree Canopy requirements contained in Subchapter 13, tl~e Parkland Dedication and drainage requirements. Environmentally Sensitive Area Classifications. The following are used to define the classifications of land areas, their constraints to building and land disturbing activity on them, and that comprise the Environmentally Sensitive Areas Map: A. Developed Floodplain. Any area defined as a floodplain within the FEMA 100-year floodplain. These areas have typically been channelized or the land within these areas has been graded, filled, or otherwise disturbed. B. Undeveloped Floodplain. Areas within the FEMA 100-year floodplain, or other floodplain that is undeveloped and in its natural state. C. Riparian Buffers. Areas identified as 100 feet from the stream centerline for streams draining a basin of greater than one square mile, and 50 feet from any streams that drain areas of one square mile or less. It also includes any areas identified as riparian through any Am~y Corps of Engineers Section 404 Pemfit Process. D. Water Related Habitat. Areas designated for wetland, tree and understory preservation and including significant stands of predominately native water related habitat. These areas include wetlands. 17-3 Subchapterl7 Development E. 35.17.5 Code Upland Habitat. Areas, a minimum often acres is size, that contain remnants of the eastern Cross Timbers Habitat. Official Maps. 35.17.6 A. Environmentally Sensitive Areas Map. The official map fl~at identifies areas identified as Environmentally Sensitive Areas. B. Environmentally Sensitive Areas Map Amendments. Substantial amendments of tim map shall follow the Zoning Amendment Procedure detailed in Subchapter 3. The map may be updated administratively when specific information for a parcel is available delineating fl~e areas and field verified by tim Director of Planning and Development. C. Map Applicability. For any application for an Environmentally Sensitive Areas Review, tim delineation of those areas on tim site map, as approved by tim Director of Planning and Development, shall supercede tim Denton Environmentally Sensitive Areas Map in determining what areas are subject to fl~e requirements of tiffs Chapter as applied to a proposed development. D. Text Applicability. The text of tiffs Subchapter, including de£mitions, describes and regulates tim protected areas shown on fl~e City Environmentally Sensitive Areas Map as a reference. E. Field Boundary Delineation. The boundaries of all environmental areas shall be clearly marked in fl~e field for the duration of fl~e land disturbing activities on fl~e property. The boundaries shall be marked as identified in fl~e Site Design Criteria Manual. Developed Floodplain Development Standards. Development within the Developed Floodplains as identified on the Environmentally Sensitive Areas Map shall comply wifl~ Subchapter 35.19 Drainage. Gas well drilling and production wiflfin developed floodplains shall comply with Subchapter 35.22 (Gas Well Drilling and Production). 35. ~ 7. 7 Undeveloped Floodplain Development Standards. The following uses and activities are allowed in the Undeveloped Floodplain and are in addition to the restrictions for development of floodplains contained in tiffs Subchapter. Site disturbance shall be delineated on fl~e completed application for Environmentally Sensitive Areas review: A. Permitted Uses and Activities. The following permitted uses and activities are allowed if in compliance wifl~ fl~e Drainage code: 1. The planting of any new trees or vegetation. 2. Restoration or enhancement of floodplains, riparian buffers, water related habitats, upland habitats, wetlands and strean~s as required by federal and state standards. 3. The placement of public or private utility facilities such as sewer, storm water, water, electricity, gas, or off, er utilities as long as installation will not have a negative impact on environmentally sensitive areas and when adequately flood proofed. 4. Measures to remove or abate nuisances, or any off, er violation of federal, state or local law. 17-4 Subchapterl7 Development Code 5. Parking lots, subject to the limitations on fill and surface material and constructed of pervious materials. 6. Parks, open space, recreational uses, trails, walkways and bike paths. 7. New stom~ water pre-treatment facilities. 8. Routine repair and maintenance of existing structures, roadways, driveways, utilities, and accessory uses. 9. Agricultural activity pemfitted through NWP 40, Agricultural Activities or any other pem~it as required by FEMA or Section 404 pursuant to the Clean Water Act. 10. Any action taken by federal, state, or local officials in an emergency to mitigate an existing or potential hazard. 11. The construction of a private driveway. 12. Gas well drilling.......a!!d._production shall comply, wifl~ Production. Prohibited Uses and Activities. The 1. Subchapter 35.22 Gas Well Drilling......a!!d following prohibited uses and activities are not allowed in undeveloped floodplains: Uncontained and contained areas of hazardous materials. Handling or processing areas for the receiving and storage of hazardous waste. Hazardous waste and solid waste landfills. 2. Land disturbing activity not authorized by a Corp Section 404 Pem~it or Letter of Pemfission and by the Director as part of the environmentally sensitive area review. 3. Any new structures or additions, including garages and carports, and storage sheds located within the area mapped as Undeveloped Floodplain. 4. Tree and understory vegetation removal except as allowed by Subsection 35.22.5.A. 8(c). Standards for Fill in Undeveloped Floodplains. The following are standards for fill in the undeveloped floodplain: 1. Filling of any floodplain of a stream that drains more than one square mile is prohibited unless the fill on any lot is less than 50 cubic yards or 300 cubic feet per acre, whichever is greater. Up to 15% of the floodplain valley storage may be filled if the stream drains less than one square mile in area pursuant to this Subchapter and federal law. 2. Excavation to balance fill shall be located on the same parcel as the frill unless it is not reasonable or practicable to do so. In such cases, the excavation shall be located in the same drainage basin and as close as possible to the fill site, so long as the proposed excavation and fill will not increase flood impacts for surrounding properties as detemfined through hydrologic and hydraulic analysis. 3. Fill and other material imported to the lot shall be lin~ited to the following: a. Poured concrete and other materials necessary to build pemfitted structures on the lot. b. Aggregate base and paving materials. c. Pervious materials as allowed in Subchapter 13, Site Design Standards. d. Plants and other landscaping material. 4. If additional fill is necessary beyond the pem~itted amounts in (1) above for sites with streams that drain an area greater than one square mile, then fill materials must be obtained from cutting or excavation only to the extent allowed to create an elevated site for pemfitted land disturbing activity. 5. Adequate drainage shall be provided for the stability of the fill. 17-5 Subchapterl7 Development Code 6. Fill to raise elevations for a building site shall be located no closer than pemfitted to the Environmentally Sensitive Areas in order to reduce the impact of that fill on the adjacent areas. D. Culverts and Bridges. Culverts or bridges of any waterway or creek identified on the official maps adopted pursuant to this Subchapter must be designed by an engineer. Stream crossings shall be designed to the standards of the Drainage Subchapter, or where no floodway has been identified, to pass a one-hundred (100) year flood without any increase in the upstream flood height elevation. The engineer shall consider in the design the probability fl~at fl~e culvert will be blocked by debris in a severe flood and accommodate expected overflow. Fill for culverts and bridges shall be kept to fl~e minin~um allowed, but is exempt from fl~e limitations in section (A) above. 35.17.8 Riparian Buffer and Water Related Habitat Development Standards. The following uses and activities are allowed in the Riparian Buffer and Water Related Habitats and are in addition to tim restrictions for development in tiffs Subchapter. Site Disturbance and shall be delineated on tim completed application for Environmentally Sensitive Areas review: A. Permitted Uses and Activities. The following uses and activities are allowed in Riparian Buffer and Water Related Habitats and shall be delineated on tim completed application for Environmentally Sensitive Areas review: 1. Up to 10% of tim area may be disturbed for private yard structures including but not limited to: gardens, yards, trails, and clearings, but which are no closer fl~an 25 feet from tim stream bank or riparian buffer. No disturbance is pemfitted in delineated wetlands. 2. Repair, replacement or improvement of utility facilities where: a. The disturbed portion of tim Environmentally Sensitive Area is restored; and, b. Non-native vegetation is removed from tim Environmentally Sensitive Area and replaced wifl~ vegetation from the City Native Plant List. 3. Additions, alterations, rehabilitation, or replacement of existing structures fl~at do not increase fl~e existing structural footprint in fl~e Riparian Area or Water Related Habitat Area where tim disturbed portion of tim area is restored using native vegetative cover. 4. Stream, wetland, riparian and upland enhancement or restoration projects; 5. Agricultural activity, including buildings and structures is pemfitted outside of the environmentally sensitive areas, unless otherwise pemfitted fl~rough NWP 40, Agricultural Activities or any other pemfit as required by FEMA or Section 404 or as allowed in this Subchapter. 6. Routine repair and maintenance of existing structures, roadways, driveways, utility facilities, accessory uses and oflmr development. 7. Measures to remove or abate nuisances, or any oflmr violation of State statute, administrative rule, or City Code of Ordinances. 8. Any action taken by fl~e City in an emergency to mitigate an existing or potential hazard. 9. Gas well drilling..ar!.d._production within .~parian buffers and water related habitats shall comply wifl~ Subchapter 35.22 Gas Well Drilling and Production. B. Prohibited Uses and Activities. The following uses and activities are not allowed in Riparian Buffers and Water Related Habitats: 1. Land disturbing activity not authorized by a Corp Section 404 Pemfit of Letter of Pemfission and by the Directors as part of the ESA review. 17-6 Subchapterl7 35.17.9 Development Code 2. Uncontained and contained areas of hazardous materials handling areas for the receiving and storage of hazardous waste. 3. Any structures, including storage sheds, garages and carports, located within the area mapped as Riparian Buffer and Water Related Habitats. Upland Habitat Development Standards. The following uses and activities are allowed in the Upland Habitat and are in addition to the restrictions for development within this Subchapter. Site disturbance shall be delineated on the completed application for Environmentally Sensitive Areas review: A. Permitted Uses and Activities. The following uses and activities are allowed in Upland Habitats and shall be delineated on the completed application for Environmentally Sensitive Areas Review: 1. Residential development shall be designed to retain a contiguous fifty percent (50%) tree canopy, which shall remain predominantly in its natural state. Non-residential development may remove any or all of the Upland Habitat. 2. Selective prtming by a qualified and licensed tree surgeon is allowed to remove up to one-quarter of the canopy for the purposes of a trees health. 3. Clustering of development in fl~ese areas shall be utilized to mininfize in, pact to fl~e natural environment. Clustering shall be designed to maintain a contiguous forested area. 4. Agricultural activity, including buildings and structures is permitted outside of fl~e environmentally sensitive areas, unless otherwise permitted fl~rough NWP 40, Agricultural Activities or any other permit as required by FEMA or Section 404, or as allowed in tiffs Subchapter. 35.17.10 General Design and Improvement Standards. The design and improvement of environmentally sensitive areas shall be in accordance with the following standards: A. These areas shall be linked to existing or planned open space or conserved areas to provide an overall open space system. B. These developments shall be arranged in order to maximize access and utilization of the environmentally sensitive areas by residents of fl~e development and fl~e City. C. These developments shall comply wifl~ fl~e open space plans and requirements of fl~e City. D. The unbuildable site area shall be placed either in a lot or lots fl~at incorporate a permanent conservation easement, restrictive covenants, or such other legal n~echanism to allow for the long term conservation of said areas. Such legal n~echanism shall limit any future land disturbing activity or construction within fl~e environmentally sensitive areas and shall mn wifl~ fl~e land and be binding upon all successors and assigns of fl~e current owner. The unbuildable site area may be incorporated into lots of over 1/2 acre in size. 35.17.11 Clustering Standards. Residential units or non-residential floor area ratio of a site may be clustered within the buildable areas of that site provided the following standards are met: A. Clustered density or floor area intensity may be transferred to contiguous lots under common ownership. Clustering from one development site to another development site is prohibited. 17-7 Subchapterl7 Development Code 1. 2. B. A general development plan shall be used to designate all areas of common ownership. A general development plan may be used to allocate fl~e transfer of density between lots under common ownership prior to fl~eir being sold. The minimum two acre size requirement for clustering contained in Subchapter 5 is not applicable to properties impacted by an Environmentally Sensitive Area. 35.17.12 Alternative Environmentally Sensitive Area Plans. An applicant may propose an Alternative Environmentally Sensitive Area Plan which meets or exceeds fl~e objectives of fl~e Denton Plan and this Subchapter but does not meet fl~e standards of tiffs Subchapter. The Alternative Environmentally Sensitive Area Plan provides fl~e option to address fl~e regulations fl~rough a flexible discretionary process reviewed by fl~e Planning and Zoning Commission utilizing fl~e Alternative Development Plan review process outlined in Subchapter 3. 17-8 Exhibit D Subchapter 22 - Gas Well Drilling and Production Sections: 35.22.1 35.22.2 35.22.3 35.22.4 35.22.5 35.22.6 35.22.7 35.22.8 35.22.9 35.22.10 35.22.11 35.22.12 35.22.13 35.22.14 35.22.15 35.22.16 35.22.17 Purpose. Definitions. Gas Well Drilling and Production "By Right". Gas Well Drilling and Production by Specific Use Pemfit or Planned Development Zoning District; Application and Requirements. Standards for Gas Well Drilling and Production. DRC Recommendations for Specific Use Pemfits and Planned Development Zoning Districts. Gas Well Pemfit Required. Insurance and Indemnification. Security. Review of Application for Gas Well Pemfit. Periodic Reports. Notice of Activities. Amended Gas Well Pemfits. Transfer of Gas Well Pemfits. Inspection Remedies of fl~e City: Enforcement, Right of Entry,. 35.22.1 Purpose. The drilling and production of gas within the corporate lin~its and its Extraterritorial jurisdiction ~TJ) of the City necessitate reasonable regulations to prevent mm~inent--ddestmction of property,_protect--and-watersheds within the City of Denton and its ETJ, prevent or injury to persons,_ rand, and ensure that production*o---n~ak-e--these activities confom~ to the Denton Plan and development regulations. This Subchapter implements reasonable regulations to protect the health, safety, and general welfare of the public and to accomplish the orderly and practical development of mineral resources. This subchapter is adopted pursuant to authority vested under the City Charter and Tex. Loc. Gov't Code, Chapters 211,212 and 401. 35.22.2 Definitions. M1 technical industry words or phrases related to the drilling and production of gas wells not specifically defined shall have fl~e meanings customarily attributable flmreto by prudent operators in industry. For the purposes of this Subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. Abandonment. "Abandonment" as defined by the Railroad Commission and includes the plugging of the well and restoration of the drill site as required by this Subchapter. Cathodic protection. An electrochemical corrosion control technique accomplished by applying a direct current to the structure that causes the structure potential to change from the corrosion potential to a protective potential in the inm~unity...r~gion. The ~q~ired cathodic protection current is .~_~pp.!i~.d...b.y sacrificial anode materials or by an ~1pressed current system. Contaminant. Any substance capable of caus but not limited to smoke--ors, fumes, acids, alkalis, toxic chemicals, liquids or gases, drilling fluids including muds, or other irritants. Drilling. Any digging or boring of a new well to develop or p~oduee-----gasproduce gas or to inject gas, water, or any other fluid or substance into the earth. Drilling means and includes the re-entry of an abandoned well. Drilling does not mean or include the re-entry of a well that has not been abandoned Drill Site. The area used for drilling, completing, or re-working a well. 22-1 Subchapter 22 Development Code Exploration. Geologic or geophysical activities, including, but not limited to surveying and seismic exploration, related to the search for oil, gas, or other sub-surface hydrocarbons. Fracturing. The use of sfim~ants ~jected into a gas well to spht or fracture fl~e fom~afion to improve the producfivi~ of fl~e gas well. Gas. Gas or natural gas, as such temps are used in tim ~es, re~lations, or fom~s of the Ra~road Commission. Gas Well. ~y well dfi~ed for fl~e production of gas or classified as a gas well under fl~e Texas Natural Resources Code. Gas Well Permit. A Gas Well Pemfit applied for and issued or denied under tiffs Subchapter authorizing tim d~hng, production, and operation of one or more gas wells. Hazardous Materials Management Plan. The hazardous materials management plan and hazardous materials invento~ statements required by tim Fire Code. ~ner. A continuous !ay~r of matefials~zynfl~efic or natural, beneafl~ md on fl~e sides of a_pj~ that restricts fl~e downward and lateral release of fl~ds. New Well. A new well bore or new hole estabhshed at the ~o~d surface and shall not ~clude fl~e re- work~g of an exis~g well fl~at has not been abandoned. Oil and Gas Inspector. ~ inspector desi~ated by the City of Denton fl~at is responsible for evaluating fl~e impacts of exploration, development, and production of off and/or gas we~s. Responsibilities include environmenta~y sensitive areas review, erosion control ins.p.~g, ri~g., monitofin& and evalua~g....C~g!pliance wifl~ federa!,....~.t, ai~, and local relations. Operation Site. The area used for development and production and all related operational activities of gas aher dfi~g activities are complete. Operator. For each well, fl~e person listed on fl~e Railroad Commission Fom~ W-1 or Fom~ P-4 for a gas well. Permit. ~y written license ~anted by the City of Denton for fl~e exploration, development, md production 9_f_gas we~s issued_pursuant to ~es and relations of tiffs Subsection. Petroleum Specialist. A person familiar wifl~ and educated ~ fl~e oil and gas indust~ who has been retained by the Gty. Railroad Commission. The Railroad Commission of Texas. Re-wor~ng. Re-completion or re-ent~ of an existing well wifl~ fl~e exis~g bore hole or by deepening or sidetrack operations which do not extend more fl~an one hundred fihy (,150) feet from fl~e exis~g well bore, or replacement of well hners or cas~.,. ~pud: The first ~e fl~e dfi~ bit enters the.~o~d for ga.~ well dfilhng..aad...production. Tank. A conta~e~, covered or ~covered, used ~ conjunction with fl~e d~g...~.L.producfion of.ga.~ or off, er hydrocarbons for holding._~.r sto~g fl~ds. Technical adhsor. Such ~a(s) familiar wifl~ and educated ~ fl~e oil and or fl~e law as it relates to oil and gas matters who may be retained from t~e to ~e by fl~e City of Denton. Well. A hole or bore to any horizon, fom~afion, or strata for fl~e pu~ose of producing oit; gas, or off, er hquid hydrocarbons. 22-2 Subchapter22 35.22.3 Gas Well Drilling and Production "By Right". Development Code A. The drilling and production of gas within the corporate linfits of the City shall be permitted by right within the Rural Residential (RD-5), Rural Commercial (RC), Neighborhood Residential i (NR-1), Neighborhood Residential 2 (NR-2), Regional Center Commercial Neighborhood (RCC-N), Regional Center Commercial Downtown (RCC-D), Employment Center Commercial (EC-C), Employment Center Industrial (EC-1), Industrial Center Employment (IC-E) and Industrial Center General (IC-G) Zoning Districts provided fl~at no residential structure or place of assembly, institution or school exists no closer fl~an five hundred feet (500') from the wellhead or within a previously platted residential subdivision where one or more lots have structures and provided fl~at tim drilling and production of gas meets tim following requirements: 1. All applicable standards forth in Section 35.22.5, Standard Conditions for Gas Well Drilling and Production. 2. An approved Gas Well Development Plat and a Road Repair Agreement are on file wifl~ fl~e Director. 3. A Gas Well Permit has been issued by tim Fire Marshal. 4. A Watershed Protection Permit for wells located in the Flood Fringe or other ESA's B. The drilling and production of gas within the corporate linfits of the City shall be permitted by right within fl~e Rural Residential (RD-5), Rural Commercial (RC), Neighborhood Residential i (NR-1), Neighborhood Residential 2 (NR-2), Regional Center Commercial Neighborhood (RCC-N), Regional Center Commercial Downtown (RCC-D), Employment Center Commercial (EC-C), Employment Center Industrial (EC-1), Industrial Center Employment (IC-E) and Industrial Center General (IC-G) Zoning Districts if the property owner of a residential structure within two hundred and fifty feet (250') to five hundred feet (500') of the wellhead agrees in writing and provided that the drilling and production of gas meets the requirements of Section 35.22.3.A. 1. through. 3 and other requirements of this subchapter. C. A gas well permit shall automatically terminate, unless extended, if drilling is not commenced within one year from the date of the issuance of the permit. A_p__e_m_~_i_t_n2ay be extended for an additional six months erator and proof fl~at the re~atory standard of the recj~ed permit for such location has not changed. D. A watershed protection permit shall automatically terminate, unless extended, if spudding is not commenced within six monfl~s from fl~e date office issuance office permit. A permit may be extended for an additional three months k~p~211.....application and if no revision to the .ga.~ well drilling....a!gd....production regulations is in process. A permit may be extended for an additional three months upon application, under the same criteria for the first extension. The gas well permits required by this Subchapter are in addition to, and are not in lieu of, any permit that rovision of the Denton City Code or b¥_a_n_y_o_tt_!_e_r__govemmental 35.22.4 Gas Well Drilling and Production by Specific Use Permit or Planned Development Zoning District; Application and Requirements. No person, acting for himself or acting as an agent, employee, independent contractor, or servant for any person, shall engage in drilling or production of a gas well within the corporate limits of the City without first obtaining either a Specific Use Permit as required by this Subchapter or unless permitted within a Planned Development Zoning District unless drilling is permitted by right- p'dfsuan*right pursuant to Section 35.22.3. &_.Specific Use Permit shall be required to va~ the standards under Subsection 35.22.5. 22-3 Subchapter22 Development Code B. An application for a Specific Use Permit or Planned Development Zoning District for the drilling and production of a gas well shall be filed by tim person having legal authority. That person is presumed to be fl~e record owner, mineral owner, or tim duly authorized agent of eiflmr tim record owner or fl~e mineral owner. The Chairman of tim Development Review Committee (DRC) may require an applicant to submit information of authority to file an application. C. The Chairman of tim DRC has the authority to establish requirements for applications in fl~e Application Criteria Manual. No application shall be accepted for filing until it is complete and fl~e fee established by tim City Council of the City of Denton has been paid. Incomplete applications shall be returned less a fee for processing determined by tim Director of Planning and Development. D. No application for a Gas Well Development Plat, Gas Well Permit, Watershed Protection Permit or any 35.22.5 other _application for drilling_aB_al_production of_gas_ within the gj_~ linfits shall be ap_proved outfig[Kt__o_r conditionally! a Specific Use Permit or Planned Development District authorizing such use first has been approved. Denial or conditional approval of a Specific Use Permit or Planned Development District for gas well drilling and production shall be grounds for denial or conditional approval of any other to such use for the same land. Standards for Gas Well Drilling and Production. The drilling and production of a gas well ..... ...... within city linfits or the .C.i_~j.~...~J...shall include the following standards: 1. r-^~:~...t,..,..~ ....... ----:*~ *~,.~ Development Plat.Development Permits Required. No drilling or production of a gas well shall begin until fl~e following pemfits have been approved:a Gas We!! a. A Gas Well Development Plat that has been _ap_p_r_o_z_e__d__:~y the Chairman of the DRC is on file with the Department that conforms to the requirements of Subsection 35.16.19~ Gas Well Development Plats. ' .... , A Gas Well Permit has been issued by the City Fire Marshall in accordance with Subsection 35.22.7 and Subsection 35.22.10. c. A Watershed Protection Permit for land within fl~e Flood Fringe_ or off, er ESA has been a~ed by the Chairman of the DRC pursuant to Subsection 35.22.5.A.8.A Road Rcpair d. No permits shall be approved for gas well drilling and production on any land located within the 100-year floodway or wiflfin 1200 feet of fl~e flood pool elevation of Lake Ray Roberts or Lake Lewisville. unless fl~e ~erty owner has first applied for and received approval of fl~e City Council, for Specific Use Permit pursuant to Subsection 35.22.4.A. or for relief pursuant to Subsection 35.3.10. On-site requirements. a. A secured entrance gate shall be required. Street lighting shall be required pursuant to Section 26-76 of the Utility Code of fl~e Code of tim City of Denton, Texas or fl~e sign identifying tim entrance to tim drill site or operation site shall be reflective. 22-4 Subchapter22 Development Code b. Fences shall not be required on drill sites during initial drilling, completion, or re-work operations as long as 24 hour on site supervision is provided. Once 24-hour _s__u_pervision has ceased,_a]! drilling features including ~torage pits shall be fenced to prevent access. c. Fences located on operation sites mustshall remain locked at all times when no one is present. d. No refining process, or any process for fl~e extraction of products from gas, shall be carried on at a drill site or operation site, except fl~at a dehydrator and separator may be maintained on a drill site or operation site for fl~e separation of liquids from gas. Any such dehydrator or separator may serve more fl~an one well. Gas Processing Facilities shall require a Specific Use Pemfit. e. Pem~anent weatherproof signs reading "DANGER NO SMOI~NG ALLOWED" in a minimun~ of four inch (4") lettering shall be posted at the entrance of each drill site and operation site. The sign shall include fl~e development or operating company that is currenfly re_s_ponsible for the_ga_s_~_e_l!_opjah fl~e Railroad Commission Well Identification Number and fl~e American Petroleum Institute number for tim well, tt~e_phone number for emergency services (911), tim number for tim operator, and any ofl~erfl~e well designation required by tim Railroad Commission in two inch (2") lettering. f. No person shall place, deposit, or discharge (or cause or pem~it to be placed, deposited, or discharged) any oil, naphtha, petroleum, asphalt, tar, hydrocarbon substance, or any refuse, including wastewater or brine, from any gas operation or tim contents of any container used in connection with any oit or gas operation in, into, or upon any public right-of-way, stom~ drain, ditch or sewer, sanitary drain or sewer, any body of water, or any private property within tim corporate limits or fl~e Extratcr~to~a! iufisdicfionET~[_of fl~e City. of Denton. g. All production equipment on an operation site shall be painted and maintained at all times, including pumping units, storage tanks, buildings, and structures. h. All electric lines to production facilities shall be located in a manner compatible to those already installed in fl~e surrounding areas or subdivision. i. All fire suppression and prevention equipment required by any applicable federal, state, or local law shall be provided by the operator, at the operator's cost, and maintenance and upkeep of such equipment shall be the responsibility of the operator. j. No operator shall excavate or construct any lines for the conveyance of fuel, water, or minerals on, under, or through the streets or alleys or other land of the City without an easement or right- of-way license from the City, at a price to be agreed upon, and fl~en only in strict compliance wifl~ fids Subchapter, wifl~ off, er ordinances of the City, and with fl~e specifications established by fl~e Engineering Department. k. The digging up, breaking, excavating, tunneling, undemfining, breaking up, or damaging of any public street or leaving upon any public street any earth or off, er materials is prohibited. Construction activities or deposition of any materials or objects creating an-~¢ obstruction within linfits of public right-of-way or easements are;---is- prohibited unless fl~e operator has first obtained written pemmsion approval from fl~e Engineering Deparm~ent and, if applicable, has filed a , and fl~en only i.~.in compliance wifl~ specifications established by fl~e deparm~ent. 1. No Gas Well pemfit shall be issued for any well to be drilled within any of the streets or alleys of fl~e City and/or streets or alleys shown by fl~e Denton Plan, 1999-2020 and no street shall be blocked or encun~bered or closed due to any exploration, drilling, or production activities unless prior consent is obtained by fl~e City Manager, and fl~en only temporarily. m. Pit liners shall be designed, constructed~ and installed to prevent any migration of materials from fl~e pit into adjacent subsurface soils, ground water, or surface waters at any time during fl~e life of fl~ep_i_t All lined pits shall adhere to fl~e liner standards set forfl~ __b_¥ fl~e Railroad Commission. 22-5 Subchapter22 Development Code n. All well heads, storage tanks, separation facilities or other mechanical equipment located within 500' of an _adjacent residential prop_e_r_~ and not wiflfin a floodplain shall be screened from residential proper~ wifl~ a 6' !ligh solid screen fenc%good side facing tim residential 3. Operations and equipment practices and standards. a. Adequate nuisance prevention measures shall be taken to prevent or control offensive odor, fumes, dust, noise and vibration. b. Directional lighting shall be provided for the safety of gas well drilling and production operations and shall be provided so as to not disturb or adversely affect adjacent developments. c. The operator shall at all tin~es comply with the rules and regulations of the Railroad Commission including but not linfited to all applicable Field Rules. d. Internal combustion engines may be used in drilling operations if they have mufflers that will reduce noise to not more than 90 decibels at any point 300 feet from the boundary of the drill site or operation site. Only electric motors shall be used for the purpose of pun~ping gas wells. e. There shall be no venting of gas into the open air in residential areas except as allowed by the Railroad Commission and as approved by the Fire Marshal. f. Vehicles, equipment, and machinery shall not be placed or located on a drill site or operation site (or on any public street, alley, driveway, or other public right-of-way) in such a way as to constitute a fire hazard or to unreasonably obstruct or interfere with fighting or controlling fires. g. Only Light Sand Fracture Technology or technologies approved by the Fire Marshal in accordance with the Fire Code City shall be used to fracture stimulate a well. h. Fracing operation shall be scheduled to occur during daylight hours unless the Operator has notified fl~e Fire Marshal fl~at fracing will occur before or after daylight hours to meet safety requirements. i.Air, gas, or pneumatic drilling shall not be pemfitted. Notices shall be pursuant to Subsection 35.22.12. 4. Storage tanks and separators. a. An operator is allowed to construct, use, and operate such storage equipment and separation equipment as shown on the typical well site, typical drilling pad, and typical pad site locations on fl~e approved Gas Well Ddevelopment ~plat approved by the Chaim~an of fi~e DRC. b. The use of centralized tank batteries is pemfitted as shown on the applicable Gas Well Development Plat. c. No gas well development is allowed in the FEMA designated 100-year floodway or within 1200 feet of tim flood pool elevation of Lake Ray Roberts or Lake Lewisville. No mctcr3, 3toragc d. No storage tanks or separation facilities shall be placed in the Flood Fringe or other ESA except ~~-u-nde-rin accordance with Subsection 35.22.5(A)8.fioodplahn 22-6 Subchapter22 Development Code CiW ~c~ ..... ~: .... c~ ~ ..... ' Using Mmnning's Equation wifi~ mn ~o~: ...... cm~ Flow lines and gathering lines. a. Each operator sha~ place an identi~ing si~ at each point where a flow l~e or gaflm~g line crosses a pubhc street or road. b. Each operator shall place a wam~g si~ Gr l~es caring H2S (Hydrogen Sulfide) gas as req~red by fl~e Railroad Commission. c. ~1 flow hnes and gathering l~es wiflfin fl~e co,orate l~its of fl~e City (excluding Ci~ u~i~ l~es and franchise distribution systems) flint are used to trmsport oil, gas, and/or water sha~ be l~fited to fl~e max~ allowable operating pressure applicable to fl~e pipes instated and sha~ be installed wifl~ at least the min~ cover or backfill specified by fl~e ~efican National Safe~ Institute Code, as amended. d. Structures sha~ not be b~lt over flow l~es or gaflm~g hnes. Additional safety and enhronmental requirements. a. The d~hng and production of gas and accessing fl~e gas well site shall be ~ compliance wifl~ all state and federal environmental re~lafions. No gas well development or acfiG~ is a~owed ~ fl~e PEMA desi~ated 100-year floodwag=___.D~gg wiflfin Flood ' o~:~o or F~ge .... p ...... ofl~er ESA shown on fl~e M is allowed under the restrictions set forfl~ in Section ....... v¥~ and Section 35.22.5(A)8. b. Erosion control practices sha~ be conducted for all gas wells. Compost bem~s flint are at least 1 foot hi~ md ~o feet wide~ ~q~valent erosion control devices, shall be ~sta~ed so that all potions of fl~e we~ pad flint may dra~ off-site are contained. Dama~ resulting from sedimentation and/or erosion sha~ be repaired immediately. b:c. Gas we~s may have a target location or bottom-hole location flint is ~der fl~e floodway, an Environmentally Sensitive Area...~.~3)or wifl~ 1200 feet of fl~e flood pool elevation of lake Ray Roberts or L~e Lewisvi~e when fl~e gas we~ is dfi~ed directiona~y from a location outside ~ such areas. e:d. Each well sha~ be equipped wifl~ an automated valve flint closes fl~e well in fl~e event of an abnomml change ~ operating pressure. A~ wellheads shall conta~ an emergency shut off valve to fl~e well distribution line. &e. Each storage tank shall be eq~pped wifl~ a level control device flint wi~ automafica~y activate a valve to close fl~e well ~ fl~e event of excess liq~d acc~afion in fl~e tank f. ~1 storage tanks sha~ be anchored for stabih~. e:g. A~ stora~ tanks sha~ be eq~pped wifl~ either steel or concrete seconda~ containment systems including lin~g wifl~ an impemious material. The seconda~ containment system sha~ be of a sufficient heigl~ to contain one md one-half .(~.....}}~) t~es fl~e contents of fl~e largest tank ~ accordmce with the Fire Code. Drip pots sha~ be provided at pump out connections to cont~n 22-7 Subchapter22 Development Code the liquids from the storage tank. Outdoor stora~ areas shah be equipped wifl~ a seconda~ containment system desired to contain a spill from the largest indMdual vessel. If the area is open to r~nfaH, seconda~ containment shah be desired to include tim vol~e of a 24-hour rain/aH as detem~ed by a 25- year stom~ and proGsions shah be made to drain accumdafions of ~ound water and rag/all. Tank batte~ Gcihfies shah be equipped Mfl~ a remote foam hne and a hghm~g arrestor system. A Hazardous Materials Mana~ment Plan shah be on Ge with tim Fire Marshal. ~y updates or chan~_~_2~_~!j~_plan shall be proGded to fl~e Fire Marshal wifl~ 3 workhg_d:o_y~ of fl~e chaa~:. ~1 chemic~s and/or hazardous materials shall be stored in such a intoner as to and facilitate rapid remediation and cleanup of any accidental spill, leak, or discharge of a hazardous material..Operator shall have all material safet~ data sheets (~.~_!~.~.~) for all hazardous materials on site. All applicable federal and state irements for the of containers shall be followed. Appropriate pollution prevention actions shall be required and include, but are not limited to, chemical and materials raised from the ground (e.g., wooden p_a_!l_e_ts_TL bulk storage_, instat411ation and maintenance of seconda~__ containment protection from stom~ water and weather elements. l~.k. All wells shall be abandoned in accordance with the rules of the Railroad Commission; however, all well casings shall be cut and removed to a depth of at least ten feet (10') below the surface unless the surface owner submits a written agreement otherwise. Three feet (3') shall be the minin~un~ depth. k. 1.No structures shall be built over an abandoned well. m. No gas well drill sites shall be allowed on slopes greater than ten (!0) percent. jm, No salt-water disposal wells shall be located within the City of Denton. !e.o. Lining the reserve pit shall be required if the reserve pit is within two hundred feet (200)' of a body of water, creek, or floodplain. p_. No gas well pemfit will be issued for any well where the center of the well at the surface of the ground is located within 250 feet of an existing fresh water well intended for domestic use. q, The contents of a__n_y_pj_t_ shall always_ be maintained at least 2 feet below the r. Fencing shall be installed to restrict access to a reserve pit or off, er _Qpen water reservoir utilized io ga_s well drilling operation at a drill site wiflfin fl~e corporate linfits of fl~e CiN~ep~ :as. provided in Section 35.22.5, C.2.c. s. Drip pans and off, er containment devices or oil absorbing materials shall be placed or installed underneath all tanks containers, pun~ps, lubricating oil systems, engines fuel and chemical storag~_...~a!lk.~.,....~ystem valves connections,....~!!.d....~.!!y other areas or structures that could potential leak, discharge, or spill hazardous liquids, senti-liquids, or solid waste materials, including hazardous waste inseparable by simple mechanical removal processes fl~at is made up primarily of natural material. t. After fl~e well has been com_p!_e__t_e_d~__o_r_p!_u_gge_d and abandoned~_fi~_e___Qperator shall clean and rep2i_r all dan~ erations wiflfin thirty) ~ay~, u. After aay~p~il!, leak or malfunction, tt~e operator shall remove or cause to be removed all waste materials from any public or private property affected by such spill, leak or malfunction. Clean- up operations shall begin inm~ediately. 22-8 Subchapter22 Development Code v. The drill site shall at all times be kept free of debris, pools of water or other liquids, contaminated _s__o_il__,___w_e__e_d_s_,~_b__m__s_t2~ trash or other waste material outside fl~e drill site wiflfin a radius of one hundred (_i_~_Q) feet around tanks and ~du_c~gwells within the leased prope~y,. Drilling mud and reserve pits shall adhere to the followingrequirements i The ~ ofpi~ used in drilling 9perations shall be specified at the time of p~_m_1ir~g: The oil and gas inspector may perfom~ a contamination assessment for any reserve pit, compl.~_ti2~_.Z work-over mud circulation pi:t, washout pit, or water condensate pit, The following concentrations for contaminants will be used to detemfine if contamination exists within any materials in fl~e pits: _.C_.o.~pound Concentration limit TPH 15 mg/L BTEX 500 ug/L Benzene 50 ug/b From 30TAC 321.131.138 If concentrations exceeding these values are detecte4,_~!_e___o_perator shall remove, cause to be removed~ or otherwise remediate contaminants, to the satisfaction of fl~e oil and gas. inspector. Cleanup operations shall begin immediately. Cleanup activities that do not begin within 24 hours of notification by fl~e oil and gas inspector shall be considered a violation of tiffs Subchapter. ii Only freshwater-based mud systems shall be pemfitted. Saltwater-based mud systems and oil-based mud systems are prohibited. iii Chloride content of fluids held in reserve pits may not exceed 3,000 milligrams per liter. iv No metal additives may be added to any drilling fluids. v All fluid produced from the well during completion of production shall be held in enclosed containers while stored on fl~e property,. vi Ail fluids shall be removed ("de-watering") from the reserve pits within 30 days of completion of drilling~perations. vii The pi~ and its contents shall be removed from fl~e premises within nine~)~ays. after completion of fl~e well; provided, however, fl~at fl~e pemfittee may apply for a 90 day extension from such requirements based on showing of good cause, necessity, to maintain said p. iL. inclement weather, or other factors. The Ci eriod of time shorter fl~an the 90-day extension set out herein. x. No eration shall be pemfitted within twelve hundred (~00) feet of fl~e flood pool elevation of Lake Ray Roberts or Lake Lewisville. y. The provisions of 35.22.5(A)6 shall apply bofl~ within the corporate linfits of fl~e City of Denton and wiflfin the ETJ of fl~e City of Denton. _________Supplemental drilling. a. Supplemental drilling to deepen or directional drill an existing well shall be conducted in accordance wifl~ fl~e conditions for fl~e applicable Specific Use Pemfit or Planned Development Zoning District or underlying zoning classification that pemfits gas development by right. The operator shall provide fl~e Fire Marshal a copy of additional Railroad Commission pemfits fl~at allow drilling to a deeper depfl~. b. Supplemental drilling to deepen or directional drill an existing well shall be conducted in accordance with fl~e approved Gas Well Pemfit for the well on file wifl~ fl~e Fi~e-Ma~s-batCity. Watershed Protection Requirements for Wells located in Flood Fringe or other ESA's. 22-9 Subchapter22 Development Code The standards in this subsection are intended to mininfize adverse impacts on areas within in the Flood Fring_e___O_L~_S__&, reduce flood damage_, and lessen fl~e potential for contaminating surface water a. Prior to location of aay_ga~ well Gas Wells !ocatcd in fl~e Flood Fringe or ESA,~e proper~ owner or applicant shall first obtain approval of an application fl~at meets the criteria of fl~e Application Criteria Manual shall:for a Watershed Protection Pemfit and shall comply wifl~ tim provisions of Subsection 35.22.5.~. and shall be located outside these areas whenever practicable to minin~ize adverse impacts on these areas, reduce flood damage, and lessen the potential for contaminating surface water or any water supply. A Watershed Protection Pemfit containing an ESA assessment of fl~e drill site shall be submitted to fl~e DRC _by_ fl~e Watershed Protection Deparm~ent and/or the Floodplain Administrator for all riparian buffer and floodplain ESA's prior to fl~e approval of a Gas Well Development Plat. i If a 0parian buffer is designated as "fair" to "excellent" E rotective stream buffer widfl~ as specified in Subchapter 17 of fl~e Denton Development Code shall .app.!y,. ii Within all areas exce.p.~ unstudied floodp.!ai.r~., if the stream is desigr~ated as a .!.'..poor" ESA~esignated widfl~ of fl~e protective stream buffer 'shall be decreased by either 50- percent or to fl~e linfits of fl~e floodway whichever is greater, but in no instance shall fl~e protective stream buffer widfl~ be decreased below 25-feet measured each direction from the centerline of the existingchannel. iii Drill sites shall not be located within _a__n_y__d_e_s_jgnated ESA riparian buffer. c. The Watershed Protection p__e_~xi_t__a_pplication shall contain fl~e following infom~ation and such infom~ation as may be required by the Development Review Committee which is reasonably necessary, to review and detemfine whefl~er the proposed development and required facilities meet fl~e requirements of tiffs Subchapter and as re lication Criteria Manual. The infom~ation fl~at is required for fl~e Watershed Protection pemfit shall include, but not be linfited to: i A tree inventory, plan shall be submitted. ii Any request to remove tree(s) shall be accompanied by a letter from a certified geologist or engineer fl~at indicates why fl~e well site cannot be located to avoid fl~e trees. iii Tree mitigation for gas wells located in a floodplainS? or other ESA shall be required and shall be calculated on a 1:1 replacement value for 100% of the dbh of trees removed from the drill site. Tree mitigation shall be accomplished by planting replacement trees, within a floodplain, on-site or off-site with similar tree species or by payment into a tree fund. Tree mitigation funds that are .~.pecific to ESA's will be .k~p.t....~.~.parate from other tree funds and will only be used to either acquire wooded too fl~at remains in a naturalistic state in perpetuity,, or to purchase conservation easements within riparian or floodplain areas. Funds may be used to purchase, plant, and maintain trees on is wiflfin a ~parian area or floodplain. iv Tree Mitigation funds shall be p:aid prior to final approval of a Gas Well Development Plat in a Flood Fringe or off, er ESA. d. Storage tanks or separation facilities, serving one well head, may be placed in fl~e Flood Fringe or ESA under fl~e following conditions: i. These facilities shall be constructed at least 18-inches above the established Base Floo~d elevation plus the surcharge depth for encroachment to the linfits of the floodway having a one-percent chance of being equaled or exceeded in any year. 22-10 Subchapter22 35.22.6 Development Code ii. A hydrologic and hydraulic engineering study shall be performed by a EngineerRegistered Professional Engineer. The study shall be submitted to tim Engineering Department in a technical report for review by tim City Engineer or his designated representative. The report shall demonstrate fl~at tim proposed facilities will have no adverse in, pacts on fl~e carrying capacity of tim adjacent waterway nor cause any increases to fl~e elevations established for fl~e floodplain. Wtmn tim Special Flood Hazard Areas (SFHA) on tim subject site is designated as "Zone A" on tim FIRM Panel, or fl~e SFHA is not identified on tim FIRM Panel, tim following approximate method may be used to evaluate tim in, pacts from gas well development. A flow rate shall be calculated using procedures set forth in tim City of Denton Drainage Criteria Manual. Using Manning's Equation wifl~ an estimate of fl~e average slope of the stream, measurements of a single irregular cross-section geometry at tim well site, and tim 100-year discharge rate, fl~e average velocity and normal depfl~ may be calculated. Calculations shall be provided for tim unaltered existing channel cross-section and for fl~e proposed modified channel cross-section and submitted to tim City for review and approval prior to construction within fl~ese areas. e. If evidence from water quality monitoring efforts indicates fl~at contamination is occurring from g_a_s___w__e_ll_s_,,_fi~_e___o_perator shall remov% cause to be removed~ or otherwise remediate contamination, as re~re_dby fl~e oil and gas i~spector including but not linfited to Waste Mininfization Practices established by fl~e Railroad Commission. Cleanup operations shall begin immediately. A re- inspection fee shall be charged as established by the City Council and published in the 3p.plication Criteria Manual. f. No more than ten (?)...percent of the floodp.!.a.i~ within the limits of the Gas Well Develop.!B.~.!2~ Plat, may be filled. g. The provisions of 35.22.5(A)6 and 35.22.5 (A)8 shall apply bofl~ within fl~e corporate linfits of fl~e City of Denton and within fl~e ETJ of fl~e City of Denton. Drilling and production of gas wells shall comply wifl~ all federal, state, and local laws applicable to gas well drilling, production and operations. DRC Recommendations for Specific Use Permits and Planned Development Zoning Districts. A. The Department shall forward all applications for Specific Use Permits and Planned Development Zoning Districts to the DRC for review. The DRC shall review each application within 30 days after filing and shall make recommendations regarding the applications to the Planning and Zoning Commission and City Council. A copy of all recommendations shall be provided to the operator. The DRC may make recommendations regarding any aspect of the proposed gas well development including, but not linfited to, recommendations with respect to the standards set forth in Section 35.22.5. B. In connection with its review of an application for a Specific Use Permit or Planned Development Zoning District for the drilling and production of gas wells, the DRC may determine that it is necessary to hire a petroleun~ specialist to assist the DRC in reviewing the application. If such a determination is made, the DRC will provide the operator a written "scope of work" that the DRC proposes for such specialist. The DRC and the operator will attempt to agree upon the "scope of work"; however, the decision of the DRC shall control. If required by the specialist, the operator will provide a retainer; otherwise, the operator will pay for the services of the specialist after they are rendered. All work perforated by the specialist shall be itemized on a daily basis (including a description of the work and the an~ount of time spent), and such itemization shall be provided to the operator with each request for payment. C. The DRC has the authority to establish guidelines to use in making recommendations for Gas Well Permits or by Specific Use Permit or Planned Development Zoning Districts. Guidelines shall be placed in the Application Criteria Manual. 22-11 Subchapter22 35.22.7 Gas Well Permit Required. Development Code 35.22.8 A. Any person, acting for himself or acting as an agent, employee, independent contractor, or servant for any person, shall not engage in tim drilling and production of gas wells within tim corporate limits of tim City without first obtaining a Gas Well Permit issued under this Subchapter. ...... a o~, ..... ~, .............. s ......... or a ......... t' .............. s mu c wells.The Charter, Tex. Loc. Gov't Code Chapter 211 and the provisions of Subchapter 35.5 of the Denton Development Code. B. When a Gas Well Permit has been issued covering a well, the permit shall constitute authority for drilling, operation, production, gathering of production, maintenance, repair, re-working, testing, site preparation consisting of rigs or tank batteries, plugging and abandonment, and any other activity authorized by this Subchapter associated with drilling or production by the operator and their respective employees, agents, and contractors. A Gas Well Permit shall also constitute authority for the construction and use of all facilities reasonably necessary or convenient in connection therewith, including gathering lines and discharge lines, by the operator and its respective employees, agents, contractors and subcontractors. C. A Gas Well Permit shall not be required for exploration for gas. Exploration of gas means geologic or geophysical activities, including, but not limited to surveying and seismic exploration, related to the search for oil, gas, or other sub-surface hydrocarbons. D. Any well that has been annexed into the City shall be required to meet the requirements of this Subchapter and shall apply for a Gas Well Permit on the effective date of the annexation. Any well that has obtained a Gas Well Permit issued by the Fire Marshal prior to the effective date of this Subchapter shall provide all information required for Gas Well Permits under this Subchapter unless the information has been previously provided to the Fire Marshal. Gas Well Permits issued by the Fire Marshal prior to the effective date of this Subchapter shall comply with the following requirements: 1. Standards for Gas Well Drilling and Production requirements of Section 35.22.5. 2. Insurance and Security requirements of Section 35.22.8 and Section 35.22.9. 3. Periodic reports as required by Section 35.22.11. 4. Road Maintenance Agreement unless already provided. 5. Notice of Activity requirements of Section 35.22.12. E. A Gas Well Permit shall not, however, constitute authority for the re-entering and drilling of an abandoned well. Re-entry and drilling of an abandoned well shall require a new Gas Well Permit. F. Applications for Gas Well Permits shall be in writing, shall be on forms provided by the Department, shall be signed by the Operator, shall include the application fee, shall include a copy of the applicable Specific Use Permit or Planned Development Zoning District or Development Plat, and shall include the information required by the Application Criteria Manual unless such information has been previously provided to the City. Insurance and Indemnification. The operator shall provide or cause to be provided fl~e insurance described below for each well for which a Gas Well Permit is issued, such insurance to continue until fl~e well is abandoned and fl~e site restored. The operator may provide fl~e required coverage on a "blanket basis for mtfltiple wells". Such coverage shall be approved by fl~e Risk Manager for fl~e City of Denton. A. General Requirements. Indemnification and Express Negligence Provisions. 22-12 Subchapter22 Development Code 1. Each Gas Well Pemfit issued by fl~e City~M-arsh-at shall include fl~e following language: Operator does hereby expressly release and discharge, all clain~s, demands, actions, judgments, and executions which it ever had, or now have or may have, or assigns may have, or clain~ to have, against fl~e City of Denton, and/or its deparm~ents, it agents, officers, servants, successors, assigns, sponsors, volunteers, or employees, created by, or arising out of personal injuries, known or unknown, and injuries to property, real or personal, or in any way incidental to or in connection wifl~ fl~e perfom~ance of fl~e work perforated by fl~e operator under a gas well pemfit and fl~e operator caused by or arising out of, fl~at sequence of events which occur from fl~e operator under fl~e Gas Well Pemfit and work perforated by fl~e operator shall fully defend, protect, indemnify, and hold ham~less fl~e City of Denton, Texas, and/or its deparm~ents, agents, officers, servants, employees, successors, assigns, sponsors, or volunteers from and against each and every claim, demand, or cause of action and any and all liability, damages, obligations, judgn~ents, losses, fines, penalties, costs, fees, and expenses incurred in defense of fl~e City of Denton, Texas, and/or its deparm~ents, agents, officers, servants, or employees, including, without limitation, personal injuries and deafl~ in connection fl~erewifl~ which may be made or asserted by Operator, its agents, assigns, or any flfird parties on account of, arising out of, or in any way incidental to or in connection with fl~e perfom~ance of the work perforated by fl~e Operator under a Gas Well Pemfit and, fl~e Operator agrees to indemnify and hold ham~less fl~e City of Denton, Texas, and/or its deparm~ents, and/or its officers, agents, servants, employees, successors, assigns, sponsors, or volunteers from any liabilities or damages suffered as a result of claims, demands, costs, or judgments against fl~e City and/or, its deparm~ents, it's officers, agents, servants, or employees, created by, or arising out of fl~e acts or omissions of fl~e City of Denton occurring on fl~e drill site or operation site in fl~e course and scope of inspecting and pemfitting fl~e gas wells INCLUDING, BUT NOT LIMITED TO, CLAIMS AND DAMAGES ARISING IN WHOLE OR IN PART FROM THE SOLE NEGLIGENCE OF THE CITY OF DENTON OCCURRNG ON THE DRILL SITE OR OPERATION SITE IN THE COURSE AND SCOPE OF INSPECTING AND PERMITTING THE GAS WELLS. IT IS UNDERSTOOD AND AGREED THAT THE INDEMINITY PROVIDED FOR IN THIS SECTION IS AN INDEMNITY EXTENDED BY THE OPERATOR TO INDEMNIF'F AND PROTECT THE CITY OF DENTON, TEXAS AND/OR ITS DEPARTMENTS, AGENTS, OFFICERS, SERVANTS, OR EMPLOYES FROM THE CONSEQUENCES OF THENEGLIGENCE OF THE CITY OF DENTON, TEXAS AND/OR ITS DEPARTMENTS, AGENTS, OFFICERS, SERVANTS, OR EMPLOYEES, WHETHER THAT NEGLIGENCE IS THE SOLE OR CONTRIBUTING CAUSE OF THE RESULTANT INJURY, DEATH, AND/OR DAMAGE. LIABILITY FOR THE SOLE NEGLIGENCE OF THE CITY IN THE COURSE AND SCOPE OF ITS DUTY TO INSPECT AND PERMIT THE GAS WELL IS LIMITED TO THE MAXIMUM AMOUNT OF RECOVERY UNDER THE TORT CLAIMS ACT. 2. All policies shall be endorsed to read "this policy will not be cancelled or non-renewed without 30 days advanced written notice to tim owner and tim City except when fids policy is being cancelled for nonpayment of premiun~, in which case 10 days advance written notice is required". 3. Liability policies shall be written by carriers licensed to do business in Texas and with companies with A: VIII or better rating in accordance wifl~ tim current Best Key Rating Guide, or wifl~ nonadmitted carriers fl~at have a financial rating comparable to carriers licensed to do business in Texas approved by the City. 4. Liability policies shall name as "Additional Insured" the City and its officials, agents, employees, and volunteers. 5. Certificates of insurance mustshall be presented to tim City evidencing all coverage's and endorsements required by this Section 35.22.8, and tim acceptance of a certificate without the required linfits and/or coverage's shall not be deemed a waiver of rinse requirements. 6. Claims made policies will not be accepted except for excess policies or unless otherwise provided by this Subchapter. Required Insurance Coverage's. 22-13 Subchapter22 35.22.9 Development Code 1. Commercial General Liability Insurance. a,h. Coverage should be a minimum Combined Single Limit of $1,000,000 per occurrence for Bodily Injury and Property Damage. This coverage mustshall include premises, operations, blowout or explosion, products, completed operations, blanket contractual liability, underground property damage, broad fom~ property damage, independent contractors protective liability and personal injury. Ri. Environmental Impaim~ent (or Seepage and Pollution) shall be eiflmr included in tim coverage or written as separate coverage. Such coverage shall not exclude damage to the lease site. If Environmental Impaim~ent (or Seepage and Pollution) Coverage is written on a "clain~s made" basis, tim policy muscshall provide fl~at any retroactive date applicable precedes the effective date of the issuance of the pem~it. Coverage shall apply to sudden and non-sudden pollution conditions resulting from tim escape or release of smoke, vapors, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste material or other irritants, contaminants or pollutants. 2. Automobile Liability Insurance. Minin~un~ Combined Single Linfit of $500,000 per occurrence for Bodily Injury and Property Damage. Such coverage shall include owned, non-owned, and hired vehicles. 3. Worker's Compensation Insurance. In addition to tim minimum statutory requirements, coverage shall include Employer's Liability lin~its of at least $100,000 for each accident, $100,000 for each employee, and a $500,000 policy linfit for occupational disease, and tim insurer agrees to waive rights of subrogation against tim City, its officials, agents, employees, and volunteers for any work perforated for the City by the operator. 4. Excess (or Umbrella) Liability Insurance. Minin~um linfit of $10,000,000 covering in excess of the preceding insurance policies. 5. Control of Well Insurance. a. Minin~un~ limit of $5,000,000 per occurrence. b:j. Policy shall cover fl~e Cost of controlling a well fl~at is out of control, Re-drilling or Restoration expenses, Seepage and Pollution Damage. Damage to Property in fl~e Operator's Care, Custody, and Control wifl~ a sub-linfit of $500,000 may be added. Security. A. A security instrtm~ent that covers each well ~shall be delivered to the Fire Marshal before the issuance of fl~e Gas Well Pemfit for fl~e well. The instrun~ent mustshall provide fl~at it cannot be cancelled without at least thirty 30 days' prior written notice to fl~e City and, if fl~e instrument is a perfom~ance bond, fl~at fl~e bond cannot be cancelled without at least ten 10 days' prior written notice for non-payment of premiun~. The instrument shall secure fl~e obligations of fl~e operator related to fl~e well to: 1. Repair damage, excluding ordinary wear and tear, if any, to public streets, including but not linfited to bridges, caused by fl~e operator or by fl~e operator's employees, agents, contractors, subcontractors or representatives in the perfom~ance of any activity authorized by or contemplated by the Gas Well Pemfit; 2. Comply wifl~ tim insurance and security provisions set forfl~ in Section 35.22.8 and Section 35.22.9; and 3. Pay frees and penalties imposed upon tim operator by tim City for any breach of tim Gas Well Pem~it. B. The security instrument may be in tim fom~ of an irrevocable letter of credit or payment bond issued by a bank or surety approved by tim City. The instrument shall mn to tim City for the benefit of fl~e City, shall become effective on or before the date tim Gas Well Pemfit is issued, and shall remain in effect until tim well is abandoned and the site restored. 22-14 Subchapter22 Development Code C. A certificate of deposit may be substituted for the letter of credit or payment bond. The certificate shall be issued by a bank in Denton County, Texas, shall be approved by the City, shall be payable to the order of tim City to secure tim obligations of tim operator described above, and shall be pledged to fl~e bank with evidence of delivery provided to tim Director of Planning and Community Development. Interest on tim certificate shall be payable to tim operator. D. The security instnm~ent may be provided for individual wells or on a "blanket" basis for multiple wells. The amount of the security shall be a minimum of $50,000 for any single well and a minimum of $100,000 for multiple wells on a "blanket" basis. E. The security will tem~inate when the Gas Well Pemfit is transferred, wifl~ respect to tim operator- transferor and if fl~e operator-transferee provides replacement security fl~at complies wifl~ this section, when tim well is abandoned and tim site restored, and when the Fire Marshal consents in writing to such tem~ination. F. An appeal of fl~e detem~ination of tim amount of security required under tiffs Subchapter may be made to the Planning and Zoning Commission for recommendation to the City Council for final detem~ination of fl~e amount of security. 35.22.?0 Review Of Permi and Production. A. All applications for Gas Well Pemfits shall be filed with the Deparm~ent who shall inm~ediately forward all applications to tim DRC for review. Incomplete applications shall be returned to tim applicant, in which case fl~e City shall provide a written explanation of tim deficiencies if requested by tim applicant. The City shall retain a processing fee detemfined by tim Director. The City may remm any application as incomplete if fl~ere is a dispute pending before tim Railroad Commission regarding tim detem~ination of fl~e operator. No Gas Well Pemfit shall be approved under tiffs Section unless tim property owner or ap_plicant first receives __approval of a _Specific Use Pemfit or Planned Development req~reds a Watershed Protection Pemfit and a Gas Well Development Plat. Denial or conditional approval of any such applications shall be grounds for denial or conditional approval of fl~e Gas Well Pemfit. B. The DRC shall review each application wiflfin 15 days after acceptance for filing and shall detem~ine whefl~er fl~e application includes all of fl~e infom~ation required by this Subchapter, whefl~er fl~e application is in confom~ance wifl~ fl~e applicable Gas Well Development Plat, applicable Specific Use Pemfit or Planned Development Zoning District and whefl~er the application is in confom~ance wifl~ fl~e insurance and security requirements set forth in Subsection 35.22.8 and Subsection 35.22.9 of c.a..t. ..... The DRC shall forward a written report regarding its detem~ination to fl~e Fire Marshal and Oil and Gas Inspector, wifl~ a copy provided to fl~e operator. C. The Fire Marshal shall review fl~e application and fl~e written report of fl~e DRC and shall issue the Gas Well Pemfit after receiving fl~e DRC report within 10 days unless he detem~ines fl~at fl~e application is incomplete or fl~at fl~e application is not in confom~ance with fl~e applicable Gas Well Development Plat, applicable Specific Use Pemfit, Planned Development Zoning District. The Fire Marshal may employ a technical advisor under the Fire Code. D. The Fire Marshal may condition fl~e release office approved Gas Well Pemfit upon fl~e operator providing the security required by Subsection 35.22.9 of ~&is ....... t,L~. and upon the operator entering into a Road Repair Agreement fl~at will obligate fl~e operator to repair damage excluding ordinary wear and tear, if any, to public streets, including but not linfited to, bridges caused by fl~e operator or by fl~e operator's employees, agents, contractors, subcontractors or representatives in the perfom~ance of any activity authorized by or contemplated by fl~e approved Gas Well Pemfit. E. The failure of fl~e DRC or fl~e Fire Marshal to review and issue a Gas Well Pemfit wiflfin fl~e time linfits specified above shall not cause fl~e application for the pemfit to be deemed approved. F. Each Gas Well Pemfit issued by fl~e Fire Marshal shall: 22-15 Subchapter22 ]2I. Development Code 1. Identify the name of each well and its operator; 2. Specify tim date on which tim Fire Marshal issued each pemfit; 3. Specify tim date by which drilling mus~shall commence on at least one well covered by fl~e pemfit otherwise tim pemfit expires (such date shall not be less fl~an one year after tim date of issuance). A one year extension of time may be granted if existing conditions are fl~e same; 4. Specify fl~at if drilling is commenced on at least one well covered by tim pem~it before the pem~it expires, tim pem~it shall continue until fl~e wells covered by the pemfit are abandoned and the site restored; 5. Incorporate, by reference, tim insurance and security requirements set forth in Subsection 35.22.8 and Subsection 35.22.9 offi~i~ Subc!~aptcr; 6. Incorporate, by reference, the requirement for periodic reports set forth in Subsection 35.22.11 of Subeh-ap*e~--and for Notice of Activities set forth in Subsection 35.22.12; 7. Incorporate the full text of the release of liability provisions set forth in Subsection 35.22.8.5.A--o-f-d~i~s- Subct~apter; 8. Incorporate, by reference, the conditions of the applicable Watershed Protection Development Plat; :a~d_ applicable Specific Use Pemfit or Planned Development Zoning District; 9. Incorporate, by reference, the infom~ation contained in the pemfit application; 10. Incorporate, by reference, the applicable rules and regulations of the Railroad Commission, including the applicable "field roles"; 11. Specify that no drilling operations (including the construction of internal private access roads) shall commence until the operator has provided the security required by Subsection 35.22.9. 12. Contain the name, address, and phone number of the person designated to receive notices from the City, which person mustshall be a resident of Texas that can be served in person or by registered or certified mail; and 13. Incorporate by reference all pemfits and fees required by the Fire Code. The decision of the Fire Marshal to deny an application for a Gas Well Pemfit shall be provided to the operator in writing within 10 days after the decision, including an explanation of the basis for the decision, if requested by the operator. The operator may appeal any such denial to the Construction Review Board. If an application for a Gas Well Pemfit is denied by the Fire Marshal, nothing herein contained shall prevent a new pemfit application from being submitted to the City for the same well. Watershed Protection Pemfit. Applicabili~ Sequence of Pemfits and Effect 1. Any person, acting for himself or acting as an agent, employee, independent contractor, or servant for any person, shall not engage in the drilling and production of gas wells within any floodplain or ESA within the corporate lin~its or extraterritorial jurisdiction of the City. without first obtaining_a Watershed Protection Pem~it issued under this Section. 2. No application for a Gas Well Development Plat or Gas Well Pemfit shall be approved until a Watershed Protection Pemfit has first been approved for the land in the floodplain or ESA. If an application for a Gas Well Development Plat or Gas Well Pemfit is submitted with an application for a Watershed Protection Pemfit. the time for lication shall commence to run from the date the Watershed Protection Pemfit is finally decided. 3. Approval or conditional approval of a Watershed Protection Pem~it authorizes the applicant to seek approval for a Gas Well Development Plat or Gas Well Pemfit. 4. All applications for Watershed Protection Pem~its shall be filed with the Deparm~ent, who shall immediately forward all applications to fl~e DRC for review. Incomp.!.e.te.......applicafions shall be 22-16 Subchapter22 35. 22.1 ~ Development Code returned to the applicant, in which case the City shall provide a written explanation of the deficiencies if regl~!g_e__applicant. The City_ shall retain a pr_o___c__e_s__s_'_mg fee detem~ined hy fl~e Director. The City may remm any application as incomplete if fl~ere is a dist~_u_l_e___pe~ding before fl~e Railroad Commission regarding fl~e detemfination of fl~e operator. No application shall be deemed accepted for filing until fl~e application is complete. 5. The DRC may attach such conditions to approval of a Watershed Protection Pemfit as are necessary, to assure that fl~e requirements of Subsection 35.22.5 are met. 6. Each Watershed Protection Pemfit the DRC shall: a. Identi~ the name of each well sub b. Spegi~ fl~e date on which fl~e Pemfit was issued; c. Income by reference all applicable standards of appro~a!; and d. Income by reference all applicable conditions of approval. 7. The following standards lication for a Watershed Protection Pemfit: a. For land inside the City, all conditions in~ ecific Use Pemfit or a Planned Development District for fl~e land subject to fl~e Watershed Protection Pemfit. b. Standards in Subsection 35.22.5(A)6 and 35.22.5(A)8. 8. The applicant may appeal the denial or conditional approval of a Watershed Protection Pemfit on gr_o__~_d_s__p_e_r_ta'_m__mg to the standards in Subsection 35.22.5(__A_)_0_ and 35.22.5_(_A__)_8_ to the Planning__au_d Zoning Commission wiflfin ten (!0) calendar da7~ of fl~e decision by the DRC. The Commission shall decide fl~e appeal applying fl~e standards made applicable to fl~e pemfit by Subsection 35.22.5(A)6 and 35.22.5(A)8. 9. The applicant may file a petition for review pursuant to Subsection 35.22.5(A)6 and 35.22.5(A)8 on grounds fl~erein specified to the City Council within ten (!0) calendar days of fl~e decision DRC. The Council shall decide the petition based upon the criteria in Subsection 35.22.5(A)6 and 35.22.5(A)8. 10. An approved Watershed Protection Pemfit shall expire upon expiration of an approved Gas Well DevelQpment Plat for fl~e same land. Periodic Reports. A. The operator shall notify the Fire Marshal of any changes to the following infom~ation inm~ediately, wiflfin one business day after the change occurs. 1. The name, address, and phone nun~ber of the operator; 2. The name, address, and 24-hour phone nun~ber of the person(s) with supervisory authority over drilling or operations activities; 3. The name, address, and phone number of the person designated to receive notices from the City, which person mustshall a resident of Texas fl~at can be served in person or by registered or certified mail; and 4. The operator's Emergency Action Response Plan including "drive-to-maps" from public rights-of- way to each drill site. B. The operator shall provide a copy of any "incident reports" or written complaints submitted to fl~e Railroad Commission or any off, er state or federal agency within 30 days after fl~e operator has notice of fl~e existence of such reports or complaints. 22-17 Subchapter22 35.22.72 Development Code Beginning on December 31st after each well is completed, and continuing on each December 31st fl~ereafter until the operator notifies the Fire Marshal fl~at fl~e well has been abandoned and fl~e site restored, fl~e operator shall prepare a written report to fl~e Fire Marshal identifying any changes to fl~e infom~ation fl~at was included in fl~e application for fl~e applicable Gas Well pemfit fl~at have not been previously reported to fl~e City. Notice of Activities. A. Any person who intends to re-work a well using a drilling rig, to fracture stimulate a well after initial completion, or to conduct seismic exploration involving explosive charges shall give written notice to tim City at least 10 days before the activities begin. B. All residences within 500 feet of a well shall be notified twenty-four hours prior to fracing of a wellhead. t~:C. The notice shall identify where the activities will be conducted and shall describe the activities in reasonable detail, including but not limited to fl~e duration of fl~e activities and fl~e time of day fl~ey will be conducted. G;-D. The notice mus-tshall also provide the address and 24-hour phone number of the person conducting fl~e activities. D:E. The person conducting fl~e activities will post a sign on fl~e property giving fl~e public notice of fl~e activities, including fl~e name, address, and 24-hour phone number of fl~e person conducting fl~e activities. ~.F. If fl~e City detemfines that an inspection by fl~e Fire Marshal is necessary, the operator will pay fl~e City's customary charge for fl~e inspection. 35.22. ?3 Amended Gas Well Permits. A. An operator may submit an application to the Fire Marshal to an~end an existing Gas Well Pemfit to commence drilling from a new drill site that is not shown on (or incorporated by reference as part of) the existing pemfit, to relocate a drill site or operation site that is shown on (or incorporated by reference as part of) the existing pemfit, or to otherwise amend the existing pemfit, for land subject to the same approved Gas Well Development Plat. B. Applications for amended Gas Well Pemfits shall be in writing, shall be on fom~s provided by the Deparm~ent of Planning and Development, shall be signed by the operator, and shall include the following: 1. The application fee as set by City ordinance; 2. A description of the proposed amendments; 3. Any changes to the infom~ation submitted with the application for the existing Gas Well Pemfit (if such infom~ation has not previously been provided to the City); 4. Such additional infom~ation as is reasonably required by the Fire Marshal to demonstrate compliance with the applicable Development Plat, applicable Specific Use Pem~it or Planned Development Zoning District; and 5. Such additional infom~ation as is reasonably required by the Fire Marshal to prevent inm~inent destruction of property or injury to persons. C. All applications for amended Gas Well Pemfits shall be filed with the Deparm~ent of Planning and Development, and the deparm~ent shall inm~ediately forward all applications to the Fire Marshal for review. Incomplete applications may be returned to the applicant, in which case the City shall provide a written explanation of the deficiencies; however, the City may retain a processing fee as detem~ined by the 22-18 Subchapter22 Development Code Fire Marshal. The City may remm any application as incomplete if there is a dispute pending before the Railroad Commission regarding fl~e detem~ination of fl~e operator. D. If fl~e activities proposed by fl~e amendment are not materially different from the activities covered by fl~e existing Gas Well Pemfit, and if fl~e proposed activities are in confom~ance wifl~ fl~e applicable Watershed Protection Pemfit, Development Plat, applicable Specific Use Pemfit; or Planned Development Zoning District, then fl~e Fire Marshal shall approve fl~e amendment within 10 days after the application is filed. E. If the activities proposed by fl~e amendment are materially different from fl~e activities covered by fl~e existing Gas Well Pemfit, and if fl~e proposed activities are in confom~ance wifl~ fl~e applicable Watershed Protection Pemfit, Development Plat, applicable Specific Use Pemfit or Planned Development Zoning District, fl~en fl~e Fire Marshal shall approve fl~e amendment within 30 days after fl~e application is filed. If, however, fl~e activities proposed by fl~e amendment are materially different andQ_r_, in fl~e judgment of fl~e Fire Marshal, might create a risk of inm~inent destruction of property or injury to persons fl~at was not associated wifl~ the activities covered by fl~e existing pemfit or fl~at was not otherwise taken into consideration by fl~e existing pemfit, fl~e Fire Marshal may require fl~e amendment to be processed as a new Gas Well Pemfit application. F. The failure of the Fire Marshal to review and issue an amended Gas Well Pemfit within fl~e tinge linfits specified above shall not cause fl~e application for fl~e amended pemfit to be deemed approved. G. The decision of fl~e Fire Marshal to deny an amendment to a Gas Well Pemfit shall be provided to fl~e operator in writing within 10 days after fl~e decision, including an explanation of fl~e basis for fl~e decision. The operator may appeal any such denial to fl~e City Council. 35.22.14 Transfer of Gas Well Permits. A Gas Well Pe-mti*--------m-ayPemfit may be transferred by the operator without the consent of the City if the transfer is in writing signed by both parties, if the transferee agrees to be bound by the temps and conditions of the transferred pem~it, if all infom~ation previously provided to the City as part of the application for the transferred pemfit is updated to reflect any changes, if the transferee provides the insurance and security required by Section 35.22.8 and Section 35.22.9. The insurance and security provided by the transferor shall be released if a copy of the written transfer is provided to the City. The transfer shall not relieve the transferor from any liability to the City arising out of any activities conducted prior to the transfer. 35.22.15 Inspection. A. The Fire Marshal and/or the oil and gas inspector shall have the authority to issue any orders or directives required to carry out fl~e intent and purpose of tiffs Subchapter. Failure of any person to comply with any such order or directive shall constitute a violation of tiffs Subchapter. B. The Fire Marshal and/or the oil and ga~.....i.!!~.pector shall have the authority to enter and insp.~g.t.....~r!.y premises covered by fl!e provisions of tiffs Subsection to detemfine compliance wifl~ fl~e provisions of tiffs Subsection and all applicable laws, rules, regulations, standards, or directives of any local state or federal authority: C. The oil and ga_s_i_n_s_pector shall conduct periodic inspections of all wells pemfitted under tiffs Subchap&e_r:. 22-19 Subchapter22 35.22. l_65Remedies of the City. Development Code A. If an operator (or its officers, employees, agents, contractors, subcontractors or representatives) fails to comply with any requirement of a Gas Well Pemfit (including any requirement incorporated by reference as part of fl~e pem~it), the Fire Marshal or oil and gas inspector shall give written notice to tim operator specifying fl~e nature of tim alleged failure and giving tim operator a reasonable time to cure, taking into consideration fl~e nature and extent of fl~e alleged failure, tim extent of tim efforts required to cure, and the potential in, pact on fl~e health, safety, and welfare of fl~e community. In no event, however, shall tim cure period be less than 30 days unless tim alleged failure presents a risk of imminent destruction of property or injury to persons or unless tim alleged failure involves tim operator's failure to provide periodic reports. The Fire Marshal or oil and gas inspector may issue a Stop Work Order under tim Fire Code. B. If tim operator does not cure fl~e alleged failure wiflfin tim time specified by the Fire Marshal and/or oil and gas inspector, tim Fire Marshal and/or oil and gas inspector may notify tim Railroad Commission and request fl~at tim Railroad Commission take appropriate action (wifl~ a copy of such notice provided to fl~e operator), and fl~e City may pursue any other remedy available under fi:is Subc!:apter. C. If fl~e operator does not cure fl~e alleged failure wiflfin fl~e time specified by the Fire Marshal and/or oil and gas inspector, the Fire Marshal and/or oil and gas inspector may upon recommendation of fl~e Construction Advisory Board: 1. Recommend to the City Council fl~at fl~e Gas Well Pemfit be suspended until fl~e alleged failure is cured; or, 2. If fl~e operator fails to initiate and diligently pursue a cure recommend to fl~e City Council fl~at fl~e Gas Well Pemfit be revoked. D. The decision of fl~e Fire Marshal and/or oil and gas inspector to recommend suspension or revocation of a Gas Well Pemfit shall be provided to fl~e operator in writing at least ten (10) days before any action by fl~e City Council unless fl~e alle~i!ure present a risk of inmfinent destruction of personsr E. If a Gas Well Pemfit is revoked, the operator may submit an application a new Gas Well Pem~it for the same well. 35.22.17~6Enforcements, Right of Entry. A. The Fire Marshal and the oil and gas igsopector isarc .... ~-~ .......... are authorized and directed to enforce this Subchapter and the provisions of any Gas Well Pemfit. Whenever necessary to enforce any provision of this Subchapter or a Gas Well Pemfit, or whenever there is reasonable cause to believe there has been a violation of this Subchapter or a Gas Well Pemfit, the Fire Marshal and/or oil and ga.~_...ir!.~.p.¢.crQ.r, or therehis designated representative, may enter upon any property covered by this Subchapter or a Gas Well Pemfit at any reasonable tinge to inspect or perfom~ any duty in, posed by this Subchapter. If entry is refused, the City shall have recourse to every remedy provided by law and equity to gain entry. B. It shall be unlawful and an offense for any person to do the following: 1. emfitted __b_y the temps of a Gas Well Pemfit issued under this SubchapLe_r_; 2. fail to com_p_l&__w_i_tl_!_:o__n_y conditions set forfl~ in a Gas Well Pemfit issued under tiffs Subchagt_e_r;__o_r 3. violate any_provision or r_%uirement set forfl~ under tiffs Subchapter. The enforcement and ~oa!~ provision under Subsection 35.1.10.4 shall apply to a violation of this Subchapter 22-20 Subchapter22 Development Code 22-21 DRAFT P&Z MINUTES FOR FEBRUARY 11, 2004 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER POWELL: Item 5B, I'll try to get the microphone where it works, and we're going to hold a public hearing and consider making a recommendation to the City Council regarding amendments to Subchapters 22, gas well drilling and production; 16, Subdivisions, 17, Environmentally Sensitive Areas; and number 3, Procedures of the Development Code related to gas well production in flood plain fringe. Mr. Reichhart. MR. REICHHART: Thank you. This topic has come before the Planning and Zoning Commission at four workshops including tonight's workshop and at City Council in one workshop. Staff has been working with the gas well industry for a number of months. As you know, currently in our regulations, to drill a gas well in a flood plain requires a Specific Use Permit. And we were charged to see if we could come up with requirements or regulations, that that would then be allowed by right if those regulations were met. The majority of the changes are to Subchapter 22 of the gas well drilling. The other chapters are to correspond with the proposed requirements of Subchapter 22. In tonight's workshop -- work session, the topic of a closed loop system was raised. And the one thing I didn't mention, I failed to mention regarding the PLANNING AND ZONING MEETING FEBRUARY 11, 2004 1 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 new regulations is that we now require two foot of free board in the reserve pit. And that will be inspected as part of the routine inspections. We believe that the reserve pit that did breach, it wasn't in the flood plain, but there were a number of factors that we believe were associated with that. One, it was located right in a swale where water was going to accumulate. Now, with the field inspections, we can verify that. A lot of times those smaller swales won't show up on the topography map, and you just don't -- we don't see them. So that was one. The second we do believe that the water in that reserve pit was allowed to get up closer to the top of that reserve pit and then during that rain event breached the top and then broke out. So we now have the two-foot requirement and with those inspections, that we will have routine inspections, we will be monitoring that, also. Secondly, tonight it was mentioned that there were potentially some other breaches possibly in the County. And the only thing I want to mention regarding that, according to the Railroad Commission Rules regarding de-watering a reserve pit, one legal way to de-water a reserve pit, is to take a bulldozer and break it open and just let it spill out into the -- onto the land. Our PLANNING AND ZONING MEETING FEBRUARY 11, 2004 2 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 regulations do not allow that. So I don't know if they were breaches or if it was a controlled -- if you want to call it a controlled breach. I have no idea of knowing what those circumstances were. Additionally, tonight and we've heard throughout this conversation that we've had is regarding staff's ability to be able to monitor this, either manpower or professional credentials, if you will, to monitor that. Also, tonight, Dr. Banks with the City is here and he will be able to respond to those comments. And, additionally, as we go through those questions -- more environmental issues would be -- should be directed towards Dr. Banks. With that, I think right now, the best thing -- I mean, -- and to categorize, we are looking to allow gas wells in the floodway fringe. It's not the floodway. It's not in any riparian buffer area. It is on the fringe. There is mitigation associated in the ordinance regarding if there is tree removal, that that has to be mitigated. And then, finally, one of the bigger, maybe two is that this now will extend into the ETJ for water quality and every well site will be inspected a minimum of four times during the operation of a well site. And those are vast improvements over the existing regulations. PLANNING AND ZONING MEETING FEBRUARY 11, 2004 3 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 With that, I'd like to turn this over to Dr. Banks to answer some of the environmental issues that have raised, if you don't mind. COMMISSIONER POWELL: I do mind. I want to ask you a question and maybe there's some other questions here. MR. REICHHART: Yes, sir. COMMISSIONER POWELL: And then we'll get wherever you want to go. MR. REICHHART: That's fine. COMMISSIONER POWELL: You said it is two foot free board? MR. REICHHART: Right. COMMISSIONER POWELL: What was it before? MR. REICHHART: If I recall, and I believe it was 18 inches, but the problem was it was never inspected. COMMISSIONER POWELL: Ail right. And give us a practical example of tree mitigation. What does that really mean? MR. REICHHART: Either the -- a tree survey is required with the watershed protection permit that is now required if you're drilling in the ESA. With that we'll get the diameter of all the trees that will be coming out, so we'll know the total quantity of trees per PLANNING AND ZONING MEETING FEBRUARY 11, 2004 4 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 inches. And for example, there's 12 inches of trees coming out, three four-inch trees. They would either have to plant the 12 inches of trees on the property, minimum two-inch size. If there isn't the ability to plant on-site, they would be able to mitigate off-site, and plant it within that watershed. In lieu of that, they would have to pay into a tree fund which then the City has the ability to either purchase additional flood plain for additional mitigation, buy plant material to plant in marginal flood plain areas, if you would, or a stream buffer area that doesn't have the vegetation that really does the environmental qualities, so then we would be able to use that, those funds to re-vegetate other areas. That is the tree mitigation required. Any tree that comes out we have to get the same amount of tree back or a dollar amount paid to the City. COMMISSIONER POWELL: And then one more question, mostly for the audience, being as this is watched on TV or cable, whatever. Government workers, me included, tend to use a lot of abbreviations. What's an ESA? MR. REICHHART: Area. Environmentally Sensitive PLANNING AND ZONING MEETING FEBRUARY 11, 2004 5 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER POWELL: Thank you. Now, we'll go -- unless there's more questions from us up here, we'll go with the rest of your program. MR. REICHHART: Thank you. DR. BANKS: Good evening. At this point, I guess, we can just open up questions that there may be concerning some of the environmental issues, and I will attempt to address those. COMMISSIONER POWELL: Anybody have any? COMMISSIONER ROY: I wander if we should hold our discussion until after the public hearing. COMMISSIONER POWELL: That's up to the people up here, whatever you folks decide. COMMISSIONER ROY: I would be interesting, I think, to hear what the public has to say. COMMISSIONER POWELL: Sounds like we have an agreement on that. So we will hold you in abeyance, sir, if we could. DR. BANKS: Okay. COMMISSIONER POWELL: And I'll open the public hearing, and we have three scheduled speakers. First one I have, and I may be pronouncing this wrong, it's either Baen or Bean, John Bean. MR. BAEN: John Baen. COMMISSIONER POWELL: PLANNING AND ZONING MEETING Thank you. Baen, thank you, sir. FEBRUARY 11, 2004 6 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BAEN: Yes, sir. I'm a professor at the University of North Texas. I'm not being paid to be here. COMMISSIONER POWELL: Into the microphone and give us your address, sir. MR. BAEN: I live at 621 Baen Lane in Jack County. I'm a professor at the University of North Texas. I understand I have three minutes; is that right, sir? COMMISSIONER POWELL: Yes, sir, unless you can talk us out of more. MR. BAEN: Ail right, sir. Well, right here -- does this show up here, by chance? COMMISSIONER POWELL: Yes, sir, it does. MR. BAEN: It does not? COMMISSIONER POWELL: It does. MR. BAEN: Okay. This week we have a drama going on that is completely associated with what you guys are talking about. This belongs to a friend of mine. This is 80 acres of land, the Davis tract just west of town. I congratulate the City in approving this site right here because it's the least destructive to this entire 80 acre tract of land. This is Western Boulevard that's supposed to be coming in here. But what I am very distressed was that they were told they could not put this gravel road to this site PLANNING AND ZONING MEETING FEBRUARY 11, 2004 7 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 anywhere close to this flood zone, or partial flood zone or 500-year flood plain. In the meantime, I've got a subdivision plat that I've superimposed for two and three acre employment center type uses in the future. And this is just absolutely a shame. In the meantime when the permit was approved, there was not a permit approved for a frack tank, so to speak, that was dug this morning that's 200 feet by 200 feet that is 200 yards from the well site. So for, number one, that's my number one pet peeve. And real quickly -- I'll go really, really quickly. Any questions about that right there? It's just a shame that this road couldn't be right here because it could have preserved all of these lots, it -- diagonally. I'm not sure who approved it or who didn't approve it, but the landowner is really, really upset. And I don't blame him one bit. If it was your grandmother's land or your land, you would want to preserve that. COMMISSIONER POWELL: Sir -- MR. BAEN: I mean, it's just a matter of -- yes, sir. question here. COMMISSIONER POWELL: You're just not on MR. BAEN: Okay. Here is the flood plain right here. I wish you could put a road on -- within the PLANNING AND ZONING MEETING FEBRUARY 11, 2004 8 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 100-year flood plain because a pickup truck going through there. The other deal real quickly, I have a copy for everyone here is that the economic issues of being in the flood plain or not in the flood plain, I have one gas well, I've put in here a million dollars. They go on the tax roll at about two million dollars. At a tax rate of three percent per gas well, it would actually be and I have copies of this for the entire council here. At any rate to make a long story short, the same two acres that could be on the fringe of the flood plain or within the 500-year flood plain or whatever, you could put four home sites that would generate $875,000.00 over a present value discounted at five percent. Instead of having the well site, you could put the four homes there, or you could put 20 units per acre and generate that much tax present value over the next 50-year present value today. Industrial, you could generate that much tax. Commercial and retail such as the one next to the Outback Steakhouse that was put in there, if that would have been moved back, it would have generated that much, whereas in the flood plain you can still have all of these things on any two-acre drill site and have the highest and best use be on the edge of the flood plain. PLANNING AND ZONING MEETING FEBRUARY 11, 2004 9 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I believe the flood plain's highest and best use is gas drilling. And then after they're finished it's still open space. I don't think the roads have to be disturbing the soil and I think they do absolutely no harm whatsoever. Yes, sir. COMMISSIONER POWELL: Time is up. MR. BAEN: Yes, sir. COMMISSIONER POWELL: sir. Thank you very much, MR. BAEN: You bet. COMMISSIONER POWELL: I have Mr. Bob Cates. Mr. Cates, if you'd give us your name and address, sir? MR. CATES: Yeah. Bob Cates, 4226 1-35 North here in Denton. COMMISSIONER POWELL: Thank you, sir. MR. CATES: I am president of Links Oil Company and I'm also Chairman of the Denton Chamber of Commerce Gas Well Development Review Committee. We've worked approximately a year and a half with City Staff to come up with these ordinance recommendations. To my knowledge, the only point of contention at this point is the closed loop system. We have not been able to get a good reason to use one. I feel like through all of the presentations we've made over the last year, including pit analysis, an engineer report PLANNING AND ZONING MEETING FEBRUARY 11, 2004 10 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 on what happens if a pit does spill, which all of that information has been provided at earlier times, that I think if we can get past that area, that we will be in agreement with these with the City. So I do speak in support of these changes. COMMISSIONER POWELL: I'm a little confused about you being in support or not in support of a closed loop system. MR. CATES: I am not in support of a closed loop system. I'm in support of the ordinance that is written and before you. COMMISSIONER POWELL: Thank you. Questions of this gentleman? None here, sir. Thank you. Mr. Ewing, Jay Ewing. MR. EWING: Jay Ewing with Devon Energy at 306 Highway 380 in Bridgeport, Texas. I'm also a member of the subcommittee with the chamber that has worked with the staff. And as Mr. Cates stated, we've worked a year and a half and used a lot of staff time, and we do appreciate their time in allowing us our input, and feel very strongly that we have a very strong ordinance as written that one has provided some additional monitoring and inspections by the City, which I think protects the City's interest and protects the flood plain in the case of wells being drilled there. PLANNING AND ZONING MEETING FEBRUARY 11, 2004 11 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The monitoring inspections will go on with all wells no matter where they're drilled whether they're in the City limits or the ETJ. So we are strongly in favor of the ordinance and feel like you do have a strong ordinance as it has been rewritten. Just address the closed loop system again, we don't feel that it's a necessity, primarily with the monitoring inspections that's going on. That's taken care of the potential hazards. The biggest concerns you've got and what staff allows with inspection is basically the engines and the lubricating oil and the diesel that's a part of that which they're provisions for drip pans, secondary containments for all of those containers. So we feel like we can have a safe environmentally friendly operation within the flood plain. I would just reiterate on the closed loop system. From an industry standpoint, we feel like having the reserve pit and not -- allows us some safety precautions and some safety backup that we can maintain this well and control this well, and not have the potential for a greater loss due to a well control problem that you will lose with the use of a closed loop system. Again, I appreciate the time and opportunity we've had to work with staff. And they have put in a lot of hard work and I will say that they are PLANNING AND ZONING MEETING FEBRUARY 11, 2004 12 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 very well qualified and they are looking at the things that are important to the environment, whether it be with oil and gas industry or standard service use development. Thank you. COMMISSIONER POWELL: Stay with us. I think Mr. Roy has something he wants to ask you. COMMISSIONER ROY: Yes, Mr. Ewing. There was a suggestion that there were two, I guess, recent cases of reserve pit failures, containment failures; do you know anything about those cases or is there anybody here that you believe knows about those cases, and can provide us some detail? MR. EWING: The only failure that I'm aware of is the one we've discussed previously that occurred here within the City. COMMISSIONER ROY: And the facts of that were -- would you tell me again? MR. EWING: The facts of that -- Mr. Cates has that a little better than I do, I think, but the bottom line is through inspections, through a third-party environmental company, their final inspections and cleanup found no damage occurred as a result of the breach of the reserve pit. COMMISSIONER ROY: What caused the breach, it just got too high? PLANNING AND ZONING MEETING 13 FEBRUARY 11, 2004 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. EWING: My understanding is that the fluid within the reserve pit was allowed to come too high, too close to the top of that reserve pit wall. There was a rain event that carried that fluid over the top of the wall and as you start moving fluid across the top of that wall, then you're going to lose that wall and that's what occurred here. That's my understanding. COMMISSIONER ROY: Thank you. COMMISSIONER POWELL: Thank you, sir. Mr. Bill Coleman would also like to speak in support and then after him, Mr. Jerry Stokes. If you'd be prepared, Mr. Stokes. MR. COLEMAN: My name is Bill Coleman with Coleman Associates Land Surveying, 300 North Elm, here in Denton. I have previously recently appeared before this Commission representing gas well development in the town. One of the things that I would like to say is that I have watched the development of this ordinance. I have reviewed it and it will eliminate a lot of the problems that I experience in dealing with Dr. Banks and the oil and gas people. I am between the middle of these folks and that's my job to resolve these. I think this ordinance goes a long way to resolving a lot of the pressures that we deal with in trying to get a good workable solution PLANNING AND ZONING MEETING FEBRUARY 11, 2004 14 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that is agreeable to all parties. All of the landowners continually say why can't we put that well down in the flood plain? Why can't we put that well down in the flood plain? The only answer we have is, you can't do it in the City of Denton. But they can do it other places. I understand. But you can't do it in the City of Denton. The gas well -- excuse me, the gas well people do this for a living. They're very good at it. Occasionally, there are accidents. There's accidents in any industry, things go wrong. But for the most part, it's been my experience and I was raised with it, that they do a good job, that people are professional and they -- that's what they're out to do. It's in their best benefit to save -- it saves money in the long run to put a good quality location in which includes proper free board, et cetera. So that's the limits of my discussion. COMMISSIONER POWELL: Thank you very much. MR. COLEMAN: I'm in favor of it. COMMISSIONER POWELL: Thank you. Mr. Stokes, if you'd come forward and give us your name and address, sir. MR. STOKES: Jerry Stokes, 4304 Chimney Rock Court, Colleyville, Texas. My company name is Mid-Continent Geological. I've been involved in drilling PLANNING AND ZONING MEETING FEBRUARY 11, 2004 15 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 several wells in the Denton area. And I am very much so in support of the -- what we're talking about here tonight. But the problem that I deal with in dealing with landowners and placement of wells in relationship to the flood plains, getting closer to the flood plains would alleviate a lot of the problem that we have with using usable land to the best of their interest, taking away from land that is out away from the flood plain where they can build houses in further development of their land. But I'm also opposed to the closed loop system. It is more of a burden on us as far as drilling the wells, added economical costs and the safety factor there of not having the reserve pit to use in the process of drilling the well. COMMISSIONER POWELL: Thank you very much, sir. I don't have any cards in opposition. Is there anybody here that would like to speak in opposition? This is a public hearing. If not, I'll close the public hearing and request from members of this Commission, discussion or a motion? Mr. Johnson, you're up first, sir. COMMISSIONER JOHNSON: I'm going to assume that everybody that spoke in favor has read through the proposed ordinance and in addition to being in favor of drilling in a flood plain is in agreement with the PLANNING AND ZONING MEETING FEBRUARY 11, 2004 16 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ordinance that has been proposed; is that right? Okay. I do have a question. There is one area in here where we talk about trees that would be removed in a riparian area. We're also working in the City of Denton on a Tree Ordinance. It is possible that the requirements in this Ordinance and the Tree Ordinance could conflict. If that were to happen would that be a problem or would we adjust this ordinance or would we just have two different requirements? COMMISSIONER POWELL: I'm going to go to staff or legal on that one. MS. PALUMBO: We looked at that issue. And the second paragraph of the proposed Tree Ordinance is going to be rewritten to say the more stringent ordinance applies. So we would look at the provisions of the Gas Well Ordinance and then also the Tree Ordinance. And if the Tree Ordinance was more stringent, the gas well operators would have to comply with that. COMMISSIONER JOHNSON: Okay. Thank you. And the other one is, this ordinance is written to apply to wells drilled in the ETJ, in a flood plain area in the ETJ, right, but it does not apply to wells drilled in the ETJ that are not in the flood plain area, right? MS. PALUMBO: That's correct. It applies to -- in the ETJ only to wells that are within the flood PLANNING AND ZONING MEETING FEBRUARY 11, 2004 17 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fringe or the riparian areas. me if I'm wrong. DR. BANKS: MS. PALUMBO: correct. And Dr. Banks can correct That is correct. And he is saying that is COMMISSIONER JOHNSON: Okay. So we don't intend to and I know that this deals with flood plain only, but -- so we have no intention in the City of applying any different rules to other wells in the ETJ not in the flood plain area other than what we do today? MS. PALUMBO: That's correct. COMMISSIONER JOHNSON: I also have a couple of other comments that I've got that are basically correcting verbiage and stuff like that that I'll forward separately. They don't change the meaning of anything, so, I'll just get them to you, Larry. COMMISSIONER POWELL: Mr. Roy. COMMISSIONER ROY: There is a perception, at least on some in the City that citizens -- one of the citizens, anyway, that the Tree Ordinance as it currently stands excludes drilling operation. And I haven't seen the latest version of the Tree Ordinance. So what you have just said is different from what at least on the street, people are thinking. MR. REICHHART: PLANNING AND ZONING MEETING We have now specifically FEBRUARY 11, 2004 18 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 added drilling and the -- any of the pipes associated with the drilling are subject to the Tree Preservation Ordinance or this, whichever is more stringent. COMMISSIONER ROY: Okay. Continuing on the tree a little bit, it says any tree that's removed. MR. REICHHART: Correct. COMMISSIONER ROY: Okay. So I guess a tree Mesquitewe. MR. REICHHART: It could be a Hackberry, a COMMISSIONER ROY: But a tree is a tree. mean, we had some discussion on what was a tree and what was a bush and so, you know, when it just says any tree that is removed, is that really clear what we're talking about? on? MR. REICHHART: We believe it is. COMMISSIONER ROY: Okay. Should I continue COMMISSIONER POWELL: Yes, sir. You've got the floor. COMMISSIONER ROY: Okay. In the new ordinance, you have added the off added screening requirement in the words. MR. REICHHART: Correct. COMMISSIONER ROY: And put it in the body PLANNING AND ZONING MEETING FEBRUARY 11, 2004 19 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the ordinance, but for the life of me, I could not find the notification requirement about the fracking operations, the 500 feet prior to fracking operations, that that be added in. Why wouldn't we add that in the ordinance rather than continuing to have to add it in? MR. REICHHART: The specific request from Council was to add the screening and, you know, that could be a -- that is probably a good recommendation that any -- for any operation in the City, any resident within 500 feet be notified 24 hours in advance. That would be an easy add. COMMISSIONER ROY: Can somebody keep a record of these as we go through them, please? Thank you. MR. REICHHART: We do also have verbatim minutes being taken. COMMISSIONER ROY: I'll rest a minute. COMMISSIONER POWELL: Any other discussion here? Oh, Ms. Holt. Excuse me. I didn't see your name up here. COMMISSIONER HOLT: I guess this is for Dr. Banks. DR. BANKS: Yes, ma'am. COMMISSIONER HOLT: Do you feel that we in this community with the people drilling, with the staff, that we have done everything possible to protect our PLANNING AND ZONING MEETING FEBRUARY 11, 2004 20 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 watershed? DR. BANKS: I think that we have done everything possible taking into consideration other ordinances that are in effect in other areas around, taking into account the current regulations that we have on that industry, and what we are proposing as more stringent regulations. I cannot sit up here and tell you that we have a zero risk situation. We do not, and it should not be perceived as a zero risk situation. What we have done is attempted through the adoption of our inspection and through the adoption of the standards that we're enforcing to make the risk as minimal as we can. That is hopefully going to accomplish the goals of what you're asking. I don't know that -- if someone literally had to answer your question completely, I don't know if anyone could ever say that we've done everything that we possibly can to protect our water supply. I think that we have done, produced a good ordinance that is capable of protecting the water supply in terms of risk management. And hopefully will accomplish those goals as we work through the process. COMMISSIONER HOLT: And have the Waste Minimization Standards been moved? DR. BANKS: I'm sorry? PLANNING AND ZONING MEETING FEBRUARY 11, 2004 21 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER HOLT: Have the Waste Minimization Standards been moved? DR. BANKS: Moved within the ordinance itself? COMMISSIONER HOLT: Uh-huh. DR. BANKS: I believe that they have. COMMISSIONER HOLT: From the standard -- DR. BANKS: Yes. Do you want to comment? MR. REICHHART: Yes, they have. They have been moved. The issue -- it was almost an open-ended statement that there wasn't any criteria to say when you would or would not use the Waste Minimization Standards. What we have done, we have moved them after a spill event or after -- not a spill event, but after any event if one of the chemical levels got too high or something like that that we could require additional mitigation, one of those is the Waste Minimization Standards that we would then be able to utilize. So the assumption is nothing is wrong until we find it and then we will add additional requirements. And I understand, you know, why -- do it before or do it after, because the question is, well, when are you going to require Standard X? When are you going to require Standard Y? Who is going to require it? Who's -- you know, who's determination? And we felt that after the PLANNING AND ZONING MEETING FEBRUARY 11, 2004 22 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 event -- I mean, if there is an issue -- one of them, maybe there's the diesel is leaking or something like that and there's a -- we do have the contamination and we can require then, you know, that the pillow sponging effect to clean that area up or additional cleaning. The idea, I would think, is that we can monitor and track that and if there is something that's always being required, then we make that a requirement. It's almost like our ADP process. You know, assuming that we've got the requirements correctly, we find that we're always changing something to meet the noise or, you know, notification for fracking prior to the drilling, we make that a condition of the requirements. COMMISSIONER HOLT: But in this case, it's too late. MR. REICHHART: In this case -- well, it depends on what the event is, I would think. COMMISSIONER HOLT: Well, if there's an event -- MR. REICHHART: If it's a minor, it's a clean-up -- no, because it could be very minor that it's a clean-up event and then now you're going to have -- you're going to put an additional pillow around this so if it keeps leaking we'll be able to absorb that liquid, something like that as opposed -- I mean, if they have a PLANNING AND ZONING MEETING FEBRUARY 11, 2004 23 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 breach, yes, it's too late to do anything about it. But, theoretically, we've been out there inspecting to find if the levels are too high or if there's something wrong that needed to be fixed. COMMISSIONER HOLT: Okay. And do you feel we -- do you and Dr. Banks together, feel that we have the staff to do this to be able to monitor this? DR. BANKS: I do believe that we have the staff and the capabilities in order to accomplish these goals. One of the aspects of this particular proposal is the addition paid for by the inspection fees of an oil and gas inspector. That will give us a staff member who is dedicated to this issue completely and will be out performing these inspections, performing the monitoring activity. The water utilities department has been in the business of doing inspections for quite some time. We do industrial pre-treatment inspections for large industries that discharge materials into our waste water system. We also have a very extensive watershed monitoring program that has been going on within the City now for a number of years and has produced a lot of good data that has allowed us to analyze the status of our water quality, determine where those impacts are coming from and has allowed us to begin to make efforts towards cleaning up some of the PLANNING AND ZONING MEETING FEBRUARY 11, 2004 24 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 existing problems. So I cannot think of a watershed that exists currently that has a level of monitoring that we currently have at the City of Denton. And I'm very proud of that. That has been something that our staff within the Watershed Protection Department has worked very hard on in conjunction with other researchers to get to that status. So we do, in my opinion, have the expertise and have the ability to be able to accomplish these goals. COMMISSIONER HOLT: Thank you. COMMISSIONER POWELL: Any other questions? I've been reminded or I reminded myself that I have not closed the public hearing and I will do that, and then we will go to Mr. Roy with another question. COMMISSIONER ROY: Thank you. I count at least four places in the ordinance where it talks about no permits approved or activity within the 100-year floodway or within 1,200 feet of Lake Ray Roberts and Lake Lewisville. But there's one that seems to have some additional worry. And I'm on page 22-2, paragraph D, down at the -- toward the bottom of the page, if you could get that out. It says no permits in a floodway or near Lake Ray Roberts unless the property owner has first applied for and received approval from the City Council for an SUP. PLANNING AND ZONING MEETING FEBRUARY 11, 2004 25 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Now, I thought that we just said absolutely nothing is going to be done in the floodway and nothing is going to be done within 1,200 feet. Now, why do we have this "unless" in here? MR. REICHHART: It is still a property rights issue. There may be a circumstance where we would get a takings claim if we did not allow it in a floodway, that's all they had. What we're identifying is that by right, you cannot go in the floodway. I mean, right now, it's like -- right now in the flood plain, it requires the SUP. What we've done is narrowed that area to legally give them the ability to at least make a presentation to do that and maybe Dottie can expand on it a little bit, too because there might be an area within 1,200 feet of Lake Ray Roberts that it is -- there is techniques or something they can do to get a gas well in there and meet the concerns that we have about being in the floodway within 1,200 feet of that water supply. MS. PALUMBO: And that's correct. For the case where they come in and they say that they can't extract those minerals and they have some kind of technical data showing that they have to drill at a certain location, that may be 1,200 feet from the lake or within the floodway. And at that point, I believe the ordinance allows us to hire a technical expert to look at PLANNING AND ZONING MEETING FEBRUARY 11, 2004 26 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 their data and, you know, develop a set of criteria to allow them to do that. COMMISSIONER ROY: It appears that it allows them to go directly to the City Council for that rather than coming through us. MR. REICHHART: It's the SUP process. It gets approved by City Council. The process is public hearings at P & Z. You make a recommendation, you know, for approval or denial with, you know, conditions. Then the approval is City Council, but it's the same process for the Specific Use Permit similar to the gas well that we heard earlier. COMMISSIONER ROY: Okay. Thank you. COMMISSIONER POWELL: Any other questions of Mr. Reichhart? Mr. Roy still has the floor. COMMISSIONER ROY: There are several references to no development, no activity, no drilling, and they use -- and those words are interchanged throughout the document. I'm a little bit concerned that there may be some difference of interpretation about no development within the floodway or no drilling makes sense, that's pretty clear. But the word no development or no activity, there's about three or four references to that. Would it be useful to either define what PLANNING AND ZONING MEETING FEBRUARY 11, 2004 27 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you mean by development because it's not defined in the definitions? At one time we had a -- in the old ordinance we had a definition of development. That has been struck. MS. PALUMBO: I believe that definition of development is in the City, the Denton City Code under the definition section and that's why we took it out because it's already in the Code. MR. REICHHART: That's correct. COMMISSIONER ROY: But that does not really apply to gas wells -- MR. REICHHART: No, it does. COMMISSIONER ROY: -- because gas well development is clearly different than a typical development. MR. REICHHART: No. What the -- the definition for development -- I mean, the definitions we have in this Subchapter 22 are specific just to gas wells, like the fracking or spudding or reworking. Any other definition is in the main body of the Code. COMMISSIONER ROY: Well, okay. Let me be very specific then on Page 22-9, Paragraph X, no gas well operation, here's yet a different word that's been added in to the standards. We've got development, operation, activity and drilling. That's four times it's mentioned in here PLANNING AND ZONING MEETING FEBRUARY 11, 2004 28 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about no drilling, no operation, no development, what do you mean by gas well operation? You see there. I know what that means, of course, but it just seems like if we don't go through here and be clear on these -- make that all one word and make sure that word is -- drilling everybody understands, I think. And you're not going to have an operation unless you drill there, so -- MR. REICHHART: Theoretically, you could drill outside the floodway fringe and still impact the floodway with your development, either with your mud pit, if you will, or reserve pit or, you know, any of the other operations and we can do that. We can go through this ordinance and check for clarification of either -- use one terminology if we need to provide a definition. For the purpose of this ordinance, here's what we mean by something else. That's a fairly easy fix to go through and make sure there's consistency throughout the ordinance to make sure the intent is clearly identified. COMMISSIONER ROY: I think it would be very useful to do that. MR. REICHHART: That's fine. COMMISSIONER ROY: Because I think I understand it, but it's not real clear. I'll continue unless someone -- COMMISSIONER POWELL: You've got the floor, PLANNING AND ZONING MEETING FEBRUARY 11, 2004 29 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Roy. Keep at it. COMMISSIONER ROY: Okay. The revised ordinance says no gas well permit should be issued for any well where the center of the well at the surface of the ground is within 250 feet of an existing fresh water well intended for domestic use. That's something new added here. That's a good point. I got a call today from someone who said they knew of an instance of two fresh water wells that had been put out of commission ostensibly by a gas well drilling. Are you aware of those cases in the City limits? MR. REICHHART: No, sir. COMMISSIONER ROY: That hasn't been purported back to City staff? MR. REICHHART: No, sir. COMMISSIONER ROY: Okay. And remind me again where we got the 250 foot number. DR. BANKS: That was through a -- I'm sorry. That was a survey of ordinances around in this area as well as extending into Oklahoma. The numbers ranged from no mention of setbacks from wells all the way up to, I believe, 300 feet was the maximum. We arrived at that number through our surveying of those ordinances. And in choosing a number that we felt was adequate for our PLANNING AND ZONING MEETING FEBRUARY 11, 2004 30 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 particular aquifers, which are relatively slow moving, and also seemed to be a number that was at the high end of what we found in the survey of other ordinances that address that issue. COMMISSIONER ROY: And are you familiar with the supposed cases of wells being contaminated here in Denton? DR. BANKS: I am not. COMMISSIONER POWELL: They may have been outside the city limits. Just a thought, sir. COMMISSIONER ROY: Perhaps, this one is for you, Dr. Banks, it says drill sites shall not be located within any designated ESA riparian buffer. I guess the intention of that is that not only there would be no drilling in that area, but there will be nothing there; is that correct? DR. BANKS: That is correct. COMMISSIONER ROY: No tanks, no separators or anything? DR. BANKS: That is correct. COMMISSIONER ROY: I'm going to rest a minute while I flip through some pages, Mr. Chairman. COMMISSIONER POWELL: Any other questions or discussion? I feel that when -- if there's no other discussion here, then when Mr. Roy is finished, we'll be PLANNING AND ZONING MEETING FEBRUARY 11, 2004 31 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ready for a motion one way or another. I am reluctant to challenge a fellow Commissioner. COMMISSIONER ROY: Okay. If I may. COMMISSIONER POWELL: Surely. Go ahead. COMMISSIONER ROY: I'm on Subchapter 17. I don't see a page number -- yeah, 17-6. We've added an item 9 in this and it goes back to my just previous question. It says gas well drilling and production within riparian buffers and water-related habitats shall comply with such and such chapter. Now, I thought we just said a moment ago that we weren't going to allow it any way or in any form in the riparian buffer, but here again, it says it can be done in accordance with this subchapter. MR. REICHHART: The issue -- there are mapped riparian areas, and Dr. Banks, correct me if I'm wrong. There are mapped riparian areas that are, in fact, not riparian areas. We will go out and do an inventory and that area may come off the map and drilling could be done. So even though it's mapped that way, we typically refer back to the subchapter that the regulation applies to because there's other issues besides thou shalt not drill in a riparian area; is that correct? DR. BANKS: That's basically -- yeah. COMMISSIONER ROY: I guess I'm not real PLANNING AND ZONING MEETING FEBRUARY 11, 2004 32 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sure what you just said. MS. PALUMBO: MR. REICHHART: areas. poor. Can I take a stab at it? Sure. MS. PALUMBO: There's two types of riparian One is fair to excellent and the second one is And the poor riparian area doesn't really serve a purpose for our -- to filter out anything that would get into the water supply. And so we have those mapped, but there's a debate as to whether or not they are a riparian area, so we have, through this ordinance developed a process to make that determination. And if it is a poor area then it really doesn't serve any purpose other than it might just be a swale in a cow pasture and it should be taken off the map because it's not really designed for what we're -- MR. REICHHART: The only correction I would have on that, we've had that technique for a number -- for over a year now where we developed a system, a ranking system, because it's not only flood plain issues. There's other riparian buffer areas that people have come up and said, this just doesn't make sense. There's nothing here. We go out and there's a rating system that we go through. And if it rates out as you're correct, there is no buffer, or if it's a poor, you might be able to mitigate it up to the excellent where, you know, right now we're saying good PLANNING AND ZONING MEETING FEBRUARY 11, 2004 33 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to excellent, good, fair -- fair, good to excellent, you don't touch it. You stay away from it. COMMISSIONER ROY: I guess -- maybe it's semantics or such, but, you know, in one -- at least two or three places it says you cannot do it and then this place it says you can. MR. REICHHART: It doesn't say you can. It says the requirements are embedded in Subchapter 22 with regards to gas well drilling in the riparian buffer. It just relates you back to these new regulations that we're developing. Otherwise, there would be a litany of -- the exact same litany of requirements that the way to determine it is through the watershed protection permit, we'll go out and inspect it, we'll do a report. We'll report back and here's the results. COMMISSIONER ROY: Maybe I've just misunderstood what you said. It says here, if you're going to drill in -- if you want to drill in the riparian buffer area, you go back to Chapter 35.22. to 35.22, it says you can't do it. MR. REICHHART: Right. COMMISSIONER ROY: Okay. So the bottom line is you can't do it. MR. REICHHART: You can't do it, correct. COMMISSIONER ROY: Okay. Thank you. PLANNING AND ZONING MEETING FEBRUARY 11, 2004 34 If you go back 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER POWELL: Thank you, Mr. Roy. Any other comments, discussion at this stage of the game here? Then, I guess I'm ready for a motion if anybody is willing to step forward and make one. Mr. Watkins. attention. Your name is up here. COMMISSIONER WATKINS: Mr. -- I'm sorry, I should pay If I might, I'll make a motion and we'll see if it gets a second. If it does, I'd have a statement following. I would like to make a motion that we pass this to the City Council with our approval. COMMISSIONER JOHNSON: COMMISSIONER POWELL: a second to pass it as is, correct? Second. We have a motion and And now you wanted to make a statement and then I'll go to Mr. Roy and Ms. -- COMMISSIONER ROY: Excuse me, if I may, may I suggest a friendly amendment? We had a couple of changes that I think we -- I believe we all agreed should be in there. COMMISSIONER WATKINS: That's fine. COMMISSIONER ROY: And one was the -- to build in the fracking notification and also to clear up the cases of the terminology differences that are throughout this, the development, the drilling, the operation terminology. PLANNING AND ZONING MEETING FEBRUARY 11, 2004 35 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER WATKINS: That would be fine. I have no problem with that. COMMISSIONER ROY: Thank you. COMMISSIONER POWELL: seconder doesn't either. COMMISSIONER JOHNSON: And I assume the Well, yeah, and I'll add another one, too, is that our approval of this should not prohibit cleanup of typos and things like that which are not substantive. COMMISSIONER WATKINS: COMMISSIONER POWELL: Exactly. Okay. Mr. Roy, then you're satisfied at this stage of the game. Vicky, go. COMMISSIONER HOLT: I have an amendment. I want to see if it will fly. Closed loop drilling system should be used in the drilling in the flood plain or ESA area. If this system is not appropriate for the site, a variance could be applied for. COMMISSIONER POWELL: Okay. We have an amendment to the motion and I'll generalize it adding a closed loop probability, closed loop unless otherwise varied. And we'll go with your wording. I'm just trying to synopsize it. We're going to have to -- do we have a second on this amendment? COMMISSIONER JOHNSON: the amendment? PLANNING AND ZONING MEETING 36 Well, did you accept FEBRUARY 11, 2004 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER POWELL: She didn't say friendly amendment. She said amendment. COMMISSIONER HOLT: No, just amendment. COMMISSIONER POWELL: I don't care if it's friendly or not. It's up to you, folks. COMMISSIONER JOHNSON: I'm not clear. Have we amended the motion or is that what we're discussing now is whether you accept the amendment to the motion? COMMISSIONER POWELL: Yes, we are. COMMISSIONER WATKINS: Of Commissioner Holt's motion? COMMISSIONER POWELL: Yeah, if you want it to be a friendly amendment then you're going to have to accept that, that way we don't have to vote on it. That's what it amounts to. COMMISSIONER WATKINS: I would a little rather have it as a separate motion. COMMISSIONER POWELL: We have a separate amendment then at which case we need a second to that amendment. COMMISSIONER JOHNSON: Well, don't we have to vote on the first one? COMMISSIONER POWELL: No, sir. The other one was a friendly amendment that went along with it. COMMISSIONER JOHNSON: Okay. PLANNING AND ZONING MEETING FEBRUARY 11, 2004 37 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER POWELL: We need a second on this amendment by Ms. Holt. Seeing no second, the amendment dies for lack of a second. about the motion on the floor? COMMISSIONER WATKINS: Any other discussion I would. Mr. Chairman, this has been worked on for some months now. I would like to commend the staff for all of the work that they have done, legal as well as the citizens that have poured time into this. I don't think there's any disagreement on this panel about our want for clear, pure water in Denton nor do I think that the people that worked on this have any doubt about that. It is time to move it on and I personally would like to say, not critically, I have no idea that this is a way that it will wind up. It's written by humans and there will be things that will need to be changed. Perhaps, the closed loop system. I am personally not opposed to that, but that's not in here now and I would like to get this on to the Council so that we can get some sort of regulation and open this up to the expiration. With that, I'll hush. Thank you, sir. COMMISSIONER POWELL: We have further discussion from Mr. Roy. COMMISSIONER ROY: Yes, I'd like to make a statement as well. Our existing ordinance allows drilling in the flood plain with an SUP, but as I recall, there PLANNING AND ZONING MEETING FEBRUARY 11, 2004 38 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have been no SUPs approved, so we really haven't wrestled with this. The proposed change allows drilling by right only in the flood fringe, but it adds new requirements, new inspections and monitoring. And we are extending control over the ETJ flood area. The proposed change also prohibits development in any floodway or riparian buffer ESA. Again, development is only allowed in the floodway fringe. Now, the P & Z requested the assistance of an outside expert to ensure that the proposed changes were stringent enough to protect our water quality in the environment. This recommendation was not accepted by the Council. Further, Council is on record that the proposed regulations are consistent with the intent of the Development Code. City staff has explained to us in detail how they propose to ensure the protection of our water supply and they have essentially certified to us on several occasions that they are -- they have full confidence that they have the capability and the staff to monitor and control this concern. Staff has included an important safeguard in the proposed revised ordinance and that's the six-month limitation on the watershed protection permit. And I guess, finally, the staff is recommending approval of this ordinance. PLANNING AND ZONING MEETING FEBRUARY 11, 2004 39 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Now, it may seem common sense not to allow any development in any portion of the flood plain, but the considerable financial incentives for the City and for many of our citizens to institute an ordinance that has enough teeth and enough safeguard to allow some flexibility. So I'm at the point, myself, where I don't think we, as P & Z, have much further value to add to the ordinance so I will support the motion on the floor. Thank you. COMMISSIONER POWELL: Ms. Holt, your name was up there a little bit. Did you take it off? COMMISSIONER HOLT: Yes. COMMISSIONER POWELL: Thank you. As acting Chairman, and I do want to add one thing. I think it's important that we remember that apparently most of these wells if they're drilled will go in agricultural areas. And it is my understanding that existing agricultural areas presently do a lot of damage to our water system, fertilizers, and whatever they have to use, runoff and we have no control over that. And this ordinance doesn't do anything about that. So I don't think we're doing any harm that relates to what's already being done. And with that, I will hush. And if there is no more discussion, I'll call for a vote. Motion passes 5-1. PLANNING AND ZONING MEETING FEBRUARY 11, 2004 40 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (COMMISSIONER HOLT VOTING IN OPPOSITION.) COMMISSIONER POWELL: And I believe that was the last item of the night. We'll call it a night. Thank you very much. (Meeting adjourned.) PLANNING AND ZONING MEETING FEBRUARY 11, 2004 41 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 2, 2004 Planning Departmem Jon Fortune, Assistam City Manager SUBJECT - SI04-0001 (Fee Schedule Amendments) Consider an ordinance amending the Developmem Review Fee Schedule to add fees for Watershed Protection Permits, gas well inspections, and tree mitigation associated with gas well development. BACKGROUND Applicam: City of DeNon, DeNon TX Staff has been working with representatives of the gas well industry to craft amendments to Subchapter 22 (Gas Well Drilling and Production). Those proposed amendmems (See SI03- 00024) included the addition of a Watershed Protection Permit, inspections of all gas well sites and tree mitigation for any loss of trees located in a floodplain. Each of the proposed fees (Attachmem 2, and below) have been developed by both staff and represematives of the gas well industry. The proposed fees and an analysis of each fee is provided below. [] Watershed Protection Permit: $1,300.00 per well site. The proposed amendments to Subchapter 22 require any person who proposes extraction of gas within a floodplain, an ESA or within 1200 feet of the flood pool elevation of Lake Ray Roberts or Lake Lewisville in the city and ETJ to obtain a Watershed Protection Permit (WPP) prior to approval of a Gas well Developmem Plat. Although gas well developmem will be allowed in floodplain fringe areas, it is not allowed in riparian buffers that area designated as ESA's. As part of the permit procedure, staff will conduct field assessments to determine ESA impacts from the proposed activities. The information required as part of the permit will also allow staff to analyses hydrological impacts of the proposed activity and to identify the amount of tree mitigation, if any, that is required. [] Gas well site inspections: $1,200.00 per well With the exception of inspections by the Fire Marshall, the original gas well ordinance did not provide for any site inspections. Amendments have been added to the code that will provide for inspection of every gas well site including wells in the ETJ. All sites within an ESA will be inspected a minimum of four times and all sites not in an ESA will be inspected a minimum of two times. Inspections will verify that the sites are being developed as approved, including but not limited to culverts, driveway, pad site and equipment locations, and erosion control and be monitored for contaminants. [] Gas well site re-inspections: $400.00 per visit The typical inspection fee assumes four site visits. If a problem arises or if a site is not code compliam additional inspections may be required. The proposed fee is imended to cover the anticipated costs associated with each additional inspection associated with a documemed problem. Tree mitigation: $100.00 per inch The proposed amendments to Subchapter 22 include tree mitigation for gas wells located in a floodplain fringe or other ESA. The mitigation will be calculated on a 1:1 replacement value for 100% of the dbh (diameter at breast height) of trees removed from the drill site. Tree mitigation can be accomplished by planting replacement trees, within a floodplain, on-site or off-site with similar tree species or by payment into a tree fund. Tree mitigation funds that are specific to ESA's will be kept separate from other tree funds and will only be used to either acquire wooded floodplain or riparian property that remains in a naturalistic state in perpetuity, or to purchase conservation easements within riparian or floodplain areas. Funds may be used to purchase, plant, and maintain trees on public property, as long as the public property is within a riparian area or floodplain. The proposed fee is an accepted local cost for planting new trees. ESTIMATED PROJECT SCHEDULE N/A PRIOR ACTION/REVIEW None FISCAL INFORMATION The costs associated with the amendments to Subchapter 22 will be paid by individual gas well applicants. The costs are intended to cover staff time and have been agreed upon by both city staff'and representatives of the gas well industry. RECOMMENDATION Staff recommends approval of the proposed fee schedule. ATTACHMENTS 1. Draft Ordinance. 2. Exhibit A - Revised Development Review Schedule. Prepared By: ~As~rry Rj~'hhart; RLA, sistantrDirector of Planning and Development Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development S:\Our Documents\Ordinances\04\FEESCHedule.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING THE SCHEDULE OF FEES CONTAINED IN ORDINANCE 2002-041 BY ADOPTING A NEW SCHEDULE OF FEES AS AUTHORIZED BY THE DENTON DEVELOPMENT CODE FOR THE CITY OF DENTON, TEXAS, FOR FlING APPLICATIONS FOR REVIEW, APPROVAL, GRANT OR ISSUANCE OF PLATS, PLANS, LICENSES, CERTIFICATES, VARIANCES, SPECIAL EXCEPTIONS OR DESIGNATIONS REQUIRED BY THE SUBDIVISION RULES AND REGULATIONS AND ZONING REGULATIONS OF THE CODE OF ORDINANCES; PROVIDING FOR A REPEAL OF ALL ORDINANCES IN CONFLICT HEREWITH; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR PUBLICATION; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That Ordinance 2002-041 is hereby amended by the adoption of the Development Review Fee Schedule set forth in Exhibit "A", attached hereto and made a part hereof for all purposes and authorized to be imposed for the filing of applications, review, approval, gram or issuance of plats, plans, permits, licenses, certificates, variances or designations required by the Subdivision Rules and Regulations and Zoning Regulations set forth in the Denton Development Code. SECTION 2. That this ordinance shall repeal every prior ordinance in conflict herewith, but only insofar as the portion of such prior ordinance shall be in conflict; and as to all other sections of the ordinance not in direct conflict herewith, this ordinance shall be and is hereby made cumulative except as to such prior ordinances or portions thereof as are expressly repealed hereby. SECTION 3. If any section, subsection, paragraph, sentence, phrase or word in this ordinance, or application there of to any person or circumstance is held invalid by any court of competem jurisdiction, such holding shall not effect the validity of the remaining portions of this ordinance, and City Council of the City of Demon, Texas hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 4. This ordinance shall become effective immediately after its passage and approval. PASSED AND APPROVED this the __day of ,2004. EULINE BROCK, MAYOR ATTEST: PAGE 1 S:\Our Documents\Ordinances\04\FEESCHedule.doc JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: PAGE 2 Exhibit A PLANNING AND DEVELOPMENT DEPARTMENT City Hall West - 221 N Elm - Denton, Texas 76201 voice: (940) 349-8350 fax: (940) 349-7707 www.cityofdenton.com Development Review Fee Schedule (Approved March 2, 2004) 1 Pre-design Conference (Mandatory unless waived by DRC Chairman) $250 (credited toward other fees) SF & 2F: $200 + $6 / lot 2 Preliminary or Final Conveyance or Development Plat Gas Wells: $200 + $6 / acre All Others: $200 + $10 / acre Residential: <10 lots: $200 + $6/lot 3 Preliminary or Final Plat Residential: >10 lots: $300 + $10/lot Nonresidential: $300 + $15 / acre 4 Amending Final or Amending Preliminary Plat / Replat $250 5 Minor Plats $300 + $6 / acre 6 Extension of Time for Plat $100 7 Vacation of Plat $250 8 General Development Plan $100 + $15/acre 9 Variance to Subdivision Regulations $250 per variance 10 Annexation Petition $750 11 Historic Landmark Designation $65 0 - 5 acres: $1,500 5 +- 25 acres: $2,000 12 Comprehensive Plan Amendment 25 +- 50 acres: $3,000 50 + acres: $4,000 + $10 / acre 13 Specific Use Permit $1,500 + $65 / acre 14 Minor Amendment to Specific Use Permit $250 + additional $100 if processed administratively 15 Extension of Time for Specific Use Permit $250 16 Site Plan Review (including landscaping and architectural review) $0.03 per square foot of proposed building with a $50 Minimum and not to exceed $1,500 0 - 5 acres: $850 5 +- 25 acres: $1,250 17 Zoning Change (includes PD Concept Plans) and Alternative Site Plan 25 +- 50 acres: $2,000 50 + acres: $2,000 + $10 / acre 18 Special Exception requiring City Council action $ 500 19 Planned Development District: Detailed Site Plan $1,000 + $25 / acre 20 Planned Development District Detailed Site Plan Minor Amendment $$250 + additional $100 if processed administratively 21 Planned Development District Detailed Site Plan Time Extension $250 22 Zoning Verification Letter $ 25 per site 23 Right-of-Way or Easement Abandonment $150 per lot 24 Board of Adjustment $250 per variance 25 Public Hearing Legal Notice for Property Owners within 200 feet Current Postal Rate for Certified Mail + $.055 - each 26 Public Hearing Courtesy Notice for Residents within 500 feet Current Postal Rate for First Class Mail - each 27 Public Hearing Sign - 2'X3' for road frontages of 45 or less mph $65 each 28 Public Hearing Sign - 3'X4' for road frontages of 45+ mph $100 each 29 Publication Fees Annexation - $350 Zoning - $70 0 - 5 acres: $1,500 5 +- 25 acres: $2,000 30 Zoning Plan (related to Interim Ordinance) 25 +- 50 acres: $3,000 50 + acres: $4,000 + $10 / acre 31 Project Plan (related to Interim Ordinance) $1,000 + $25 / acre 32 Design Plan (related to Interim Ordinance) $1,000 + $25 / acre 33 Watershed Protection Permit $1,300 per well 34 Gas Well Inspection Fee $1,200 per well 35 Gas Well Re-inspection Fee $400 per visit 36 Tree mitigation as required per § 35.22.8.c.iii $100 per inch NOTE: The fees for items #'s 25, 26, 27 and 28 will be collected at least five days in advance of mailings and sign postings. Failure to pay fees will result in removal from scheduled agenda. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 2, 2004 Engineering Jon Fortune, Assistant City Manager SUBJECT: SI03-0019: (Western Blvd Mobility Plan AmendmeN) Hold a public hearing and consider adoption of an ordinance amending the Mobility Plan Component of The Denton Plan to revise the location and change the classification of Western Blvd. and changing the classification of Masch Branch Road between Hwy 380 and Jim Christal Road; and providing an effective date. The Planning & Zoning Commission recommends approval (5-0) BACKGROUND: Applicant: City of DeNon History: Western Blvd is a proposed secondary arterial traversing the west side of Denton connecting Hwy 380 with Airport Road (FM 1515). it has been shown on the City's thoroughfare plan since 1986. It is expected to carry a large amount of the traffic generated by existing and future industrial development of the area. In Denton, a secondary arterial typically has an ultimate section of 4 lanes with a median inside of a ll0-foot wide right of way. $1,187,000 was originally included in the City's 1996 Bond Program toward establishmeN of this thoroughfare (originally ideNified as Masch Branch Road Phase ii). Since that time, due mainly to the Airport expansion plans and floodplain issues associated with Masch Branch Road, with Oversight Committee approval, a portion of the original funding was diverted to other projects and the bulk, ($800,000) to Western Blvd. As the existing funding is only a fraction of the total road costs, in preparation for a future Bond Election, the City hired Teague, Nall& Perkins, inc. (T, N&P) to perform a route study for Western Blvd. evaluating the route curreNly shown on the City's Mobility Plan. The route study evaluation criteria included cost estimates, physical constrains, floodplain disturbance as well as other environmeNal concerns, existing and proposed land uses, drainage issues, existing zoning and plats, permitting issues, parcel boundaries and right of way acquisition. The route study was performed with input from Rayzor InvestmeNs LTD., the majority property owner affected by the alignmeN. The outcome of the study recommended keeping the southern terminus of Western Blvd. on Airport Road as it is currently planned, but curving the road slightly to the west and lining up the northern terminus near Cindy Lane at Hwy 380 rather than near Marshall Road as is curreNly shown on the plan. A number of reasons predicated the need for the change in alignment. -1- The existing alignmem affects a larger amoum of floodplain and has some potemial wetlands permitting issues associated with it. The proposed alignment minimizes the floodplain crossing and avoids potemial wetlands. Because of existing development, it is not possible to line Western Blvd. up with Marshall Road, thus creating an offset intersection on Hwy 380. There is an existing 60-foot strip of land dedicated for road purposes immediately adjacem to the west boundary of Bethel Temple Church. That strip of land is slightly offset from Cindy Lane. it would only take a minor adjustmem of the imersection of Cindy Lane to the west to make it line up with the proposed alignment for Western Blvd, thus creating a 4-way intersection that can be easily signalized once Western Blvd. is constructed. This will also provide a signalized imersection in the future for safe access in and out of Ranch Estates Subdivision. At the same time, staff received questions with regard to the current classification of Masch Branch Road also designated as a secondary arterial. As the two roads are adjacem and parallel, Staff used innovative Transportation Systems inc. (iTS) to perform a road capacity study of the immediate area. The results of this study indicate that Western Blvd. should be upgraded from a Secondary Arterial to a Primary Arterial (6-lane divided road with median inside a 135 foot right of way) and that Masch Branch Road from Jim Christal Rd. to Hwy 380 should be reduced from a secondary arterial to a commercial collector (4-lane, 45-foot wide undivided road inside a 73 foot right of way). Umil 4 lanes are needed, the street could be striped to provide two wide lanes and possibly on street parking in the event it is reconstructed to the proposed section. The main reasons are as follows: 1. Masch Branch Road will ultimately be closed from Jim Christal Road to Airport Road (FM1515) due to a proposed runway expansion at the DeNon Municipal Airport. This will limit the amount of cut through traffic on the remainder of the road. 2. The majority of the property immediately west of Masch Branch Road is in the floodplain and is not developable. This will limit the site-generated traffic on this portion of the road. 3. Based on expected traffic alone, only two lanes are needed on Masch Branch Road. However, because of significam truck traffic and because a 2-lane road does not leave any room for error, a road section wide enough to provide for a four lane undivided road is recommended. 4. As Jim Christal Road will no longer be able to carry through traffic from Airport Road to Hwy 380, Western Blvd. will need to be upgraded to carry additional through traffic. The summary of that study is attached. Purpose of a Mobility Plan: A mobility plan is a planning tool used by most cities and coumies of any size to plan capital improvemems, coordinate right of way needs with pending developmems and is typically based on the expected road capacity needs in the foreseeable future, it is a broad-brush picture based on a set of assumptions at a particular place in time. It shows generally the location and size of the -1- proposed roads needed to move traffic effectively given the specified assumptions. The current City of DeNon Mobility plan was adopted by the City Council as part of the Comprehensive Plan. As time progresses and property develops, it is often necessary to review the assumptions used to create the map originally. Changes in expected development trends often precipitate the need to make adjustmems to a mobility plan. An important factor to remember in the process of amending the mobility plan is to focus on the broad issues as they relate to the surrounding land uses, general alignments, and expected traffic instead of becoming caught up in minute details that are typically worked out once a general route has been adopted. The Need for Western Blvd: As idemified in the Western Blvd/Masch Branch Road Capacity Study completed by ITS, There is a need for a 6-lane divided road connecting Hwy 380 with Airport Road to carry existing and anticipated traffic from industrial areas east of the Denton Municipal Airport. The Areas east of the Airport and south of Hwy 380 are for the most part zoned for industrial uses and are being marketed as Denton's industrial "hub" so it stands to reason that additional businesses are likely to locate in that area in the future. The study anticipates an estimated 20,000 to 33,000 trips per day on Western Blvd. just from site-generated uses once the area builds out. Masch Branch Road is expected to have 5,800 to 8,700 trips per day from site-generated uses. These numbers do not take any "pass through" traffic into account. Airport Road already becomes very congested at certain times of the day when the existing industrial businesses are changing shifts and an additional access into the area would relieve that congestion. Multiple points of access are also idemified in the DeNon Plan as a major strategy for diffusing traffic. In addition, because of the two low water crossings on Corbin Road to the south, Corbin Road will ultimately not be able to connect with 1-35. This leaves only three major access points into and out of this industrial area. (Western Blvd to the north, Airport Road to the east, and Westcourt/Underwood Road to the south) RECOMENDATION 1. Staff recommends the proposed alignmem change for Western Blvd. as well as upgrading Western Blvd. from a secondary to a primary arterial and reducing Masch Branch Road from a Secondary Arterial to a Commercial Collector. 2. The Planning & Zoning Commission recommended the Mobility Plan amendmem as proposed by staff (5-0) at their public hearing on November 12th, 2003. OPTIONS 1. Approve Ordinance. 2. Deny Ordinance -1- PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Planning & Zoning Commission recommended the Mobility Plan amendmem as proposed by staff (5-0) at their public hearing on November 12th, 2003. FISCAL INFORMATION Approximately $800,000 remains from the 1996 bond Program for Western Blvd. As the probable cost of construction is over $7 million, the available funding could be used to secure right of way for the proposed road, provide design, provide for the adjustmem of Cindy Lane or installation of conduits for future signals at Hwy 380 and at FM 1515. Currently no additional funds have been allocated to the construction of this roadway section. Western Blvd will most likely be considered as a candidate for funding in the City's next bond program. There are no scheduled improvemems for Masch Branch Road. There is no immediate fiscal impact for the City of DeNon with regard to amending the Mobility Plan other than staff time to revise the map if amended. ATTACHMENTS 1. Currem Mobility Plan 2. Proposed Mobility Plan 3. City Limits/Zoning Map 4. Western Blvd Cost Estimate 5. Western Blvd./Masch Branch Road Capacity Study Conclusions 6. P&Z November 12th Minutes 7. Ordinance Prepared by: David Salmon, PE, City Engineer Respectfully submitted: Charles Fiedler, Director Engineering Department -1- HAMPTONiiiiiiiiii~ TOM COLE H C01[eot0r ~ airport ~ Freeway i Railroads ~ PrimaryMaj0rAiternate ~ ..... r i' ~ ~ h~allS IQ k a is h~eserve [][]m~ Primacy MaJ0r Arteda! CLASS ~ Secondary Major Alternate N mmm~ Secondary Major Arterial COD labes flood 100 Maintained by TXDGT Road N0t Yet Built ~ Fatar¢ Resolution R98~065: Dec. 15, 1998 Amendment Date! Aug ! ~i ! 999 Existing Road Not ~0 class standard DENTON MOBILITY PLAN proposed Roadway component HAMPTOl',,Tiiiiiiiiii~ TOM COLE Leg~ ~ ~Collector ~ airp0rt ~ Freeway I Railroads ~ Primary Major Alternate Rails to Yrails Reserve Primary Major Arterial CLASS N ~ sec0ndary Maj0r Alternate ~ sec0ndary Maj0r ArteriaI COD lakes flo0dl00 ~ floodSO0 M~in~ined by 'I-XDOT NO T T O S CALl; R0 ad N 0t Yet B U ilt~ Fat ~ rE Existing R0ad Not t0 Class standard Resolution R98~065: Dec. 15, 1998 Amendment Date: OcL 16i 2003 DENTON MOBILITY PLAN p~oposed Roadway Component ~oning Map Leg ~ ~ Collector ~ ~irport ~ Freeway i Railroads ~PrimaryMajorAiternate ~ i t T il ? h~als o rasReserve mm[]~ Primary Major Arteda! CLASS Seconda ry Major Alternate ~ coc Sec0ndary Major' Arte ta Mairoined by ~XDO~ Roa d Not Yet Bu ilt Fur u re Existing NOT TO SCALE Resolution R98~065: Dec. 15, 1998 Amendment Date: Oct~ 16i 2003 Cost Summaries Full Six-Lane Primary Arterial Construction Engineering Total Cost Airport Road to Jim $4,494,770 $346,680 $4,841,450 Christal Jim Christal to Hwy 380 $ 2,744,395 $ 204,015 $2,948,410 Cindy Lane $ 75,230 $ 8,280 $83,510 Totals $7,314,395 $558,975 $7,873,370 Primary Arterial (Four Outer Lanes Only) Construction Engineering Total Cost Airport Road to Jim $3,966,710 $313,410 $4,280,120 Christal Jim Christal to Hwy 380 $ 2,516,200 $189,640 $2,705,840 Cindy Lane $ 75,230 $ 8,280 $83,510 Totals $6,558,140 $511,330 $7,069,470 Technical Memorandum Sizing of Masch Branch Road and Western Blvd. South of US 380 March 2003 VII. SIGNALIZATION OF THE US 380 / WESTERN BOULEVARD INTERSECTION The City staff requested ITS look at the possible need for a traffic signal at the US 380 / Western Boulevard intersection. Since US 380 is a Texas Department of Transportation (TxDOT) facility, the installation of a traffic signal at this intersection would require TxDOT approval. In the past, TxDOT would only approve traffic signals based upon existing traffic volumes. Recently, they have relaxed this requirement and are now considering projected traffic volumes from proposed developments. However, before they will consider projected volumes the proposed development has to be a sure thing and almost to the point of being under construction. Therefore, at this time it is too early to try to warrant a traffic signal at the US 380 / Western Boulevard intersection strictly based upon 24-hour projected volumes derived from a build-out scenario on Western Boulevard south of US 380. VIII. RECOMMENDATIONS AND SUMMARY The following recommendations are based upon the 24~hour projected traffic volume analyses for a build-out scenario conducted on Masch Branch Road and Western Boulevard as well as thc City of Denton LOS D operational standards for roadways: ~Masch Branch Road As mentioned in the Introduction, Masch Branch Road between US 380 and Jim Christal Road is on the City's Mobility Plan as a four-lane divided arterial. However, the City plans to discontinue Masch Branch Road south of Jim Christal Road due to the extension of the airport runway. Therefore, the primary function of Masch Branch Road between US 380 and Jim Christal Road will be to provide access to the adjacent properties. North of US 380, Masch Branch Road is on the Mobility Plan as a collector type road which indicates there is not a strong demand for the continuation of traffic in the north-south direction across US 380. Therefore, ITS recommends the ultimate cross-section for Masch Branch Road between US 380 and Jim Christal Road be a four-lane undivided facility. Based solely on projected traffic generated from the adjacent land uses this section of road should function adequately as a two-lane collector road. However, it does not provide much flexibility in the event there are future alignment changes in the City's Mobility Plan, changes in land uses that generate more traffic or floodplain land (not assumed in the analysis) is reclaimed for development. The four-lane undivided road also provides the flexibility of providing parking if needed and provides additional street width for the maneuvering of trucks. _Western Boulevard As mentioned in the Introduction, Western Boulevard is on the City's Mobility Plan as a four- lane divided arterial along its full extent between US 380 and Airport Boulevard. Based upon Technical Memorandum Sizing of Masch Branch Road and Western Blvd. South of US 380 March 2003 projected traffic volumes generated by the adjacent property only and when considering the City's LOS D operational criteria, the section of road between US 380 and Jim Christal Road has a cross-sectional need between a four-lane divided and six-lane divided standard. The section of road between Jim Christal Road and Airport Boulevard has a cross-sectional need for a six-lane divided road when considering the same criteria as in the section north of Jim Christal Road. Therefore, ITS recommends the City plan for the ultimate construction of a six-lane divided road between US 380 and Airport Boulevard. 10 Technical Memorandum Sizing of Masch Branch Road and Western Blvd. South of US 380 March 2003 Masch Jim Figure 3 Projected 24-Hour Link Volumes (Based upon adjacent land development only) Bonnie Brae IH 3~ US 380 ~ 8,700 ~ 24,000 [Iranch Rd.  5,800 ~ 20,000 ristal Rd. ~ 33,000 Western Blvd. City Airport IH 3  27,400 Airport Blvd. IH 35E City of Denton Planning & Zoning Minutes November 12, 2003 After determining that a quorum was present, the Planning and Zoning Commission convened a Work Session on Wednesday, November 12, 2003 at 5:00 pm in the Council Work Session Room. PRESENT: Commissioner Mulroy, Commissioner Strange, Commissioner Watkins, Commissioner Johnson, Commissioner Powell and Commissioner Holt. ABSENT: Commissioner Roy 6. PUBLIC HEARINGS - ZONING: The Commission held public hearings and considered making recommendations to City Council on the following items: Chairman Commissioner Mulroy left the meeting. A. Amendment to the Mobility Plan Component of The Denton Plan revising the location and changing the classification of Western Blvd. and changing the classification of Masch Branch Road between Jim Christal Road and US 380. (SI03-0019, Western Boulevard/Masch Branch Mobility Plan, David Salmon). The public hearing was opened. David Salmon, City Engineer, briefed Commissioners on the changes requested. Russell Fryman, 3400 Carmel, Denton, 76205, supported the change but questioned the efficiency of the route. The public hearing closed. Commissioner Johnson motioned, Holt seconded to approve the request as presented by the engineering department. Motion carried. 5-0. Commissioner Roy absent. Commissioner Mulroy abstained. S:\OURDOC~ 1 \ORDINA~ 1 \03hMOB ILI.4.DOC ORDINANCE NO. AN ORDINANCE AMENDING THE MOBILITY PLAN COMPONENT OF THE DENTON PLAN TO REVISE THE LOCATION OF WESTERN BLVD. AND CHANGE ITS CLASSIFICATION FROM A SECONDARY ARTERIAL TO A PRIMARY ARTERIAL, AND TO CHANGE THE CLASSIFICATION OF MASCH BRANCH ROAD BETWEEN HIGHWAY 380 AND JIM CHRISTAL ROAD FROM A SECONDARY ARTERIAL TO A COLLECTOR STREET; AND PROVIDING AN EFFECTIVE DATE. (SI03-0019) WHEREAS, the City has initiated an amendment to the Mobility Plan component of the Comprehensive Plan of the City of Denton adopted on December 7, 1999 (the "Mobility Plan") to revise the location of Western Blvd. and change its classification from a secondary arterial to a primary arterial, and to change the classification of Masch Branch Road between Highway 380 and Jim Christal Road from a secondary arterial to a collector street all as more particularly described and shown on Exhibit "A" attached hereto and made a part hereof by reference (the "Mobility Plan Amendment"); and WHEREAS, The Planning and Zoning Commission after conducting a public hearing recommended the approval of the Mobility Plan Amendment; and WHEREAS, the City Council after conducting a public hearing, finds that the Mobility Plan Amendment is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The City Council hereby approves the Mobility Plan Amendment. SECTION 3. The City staff is directed to change the Mobility Plan map to the Denton Plan in conformity with the Mobility Plan Amendment. Until such map change is made a copy of this ordinance shall be attached to the Denton Plan, 1999-2020 showing the Mobility Plan Amenchnent. SECTION 4: This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ,2004. EUL/NEBROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 HAMPTONiiiiiiiiii~ TOM COLE H C01[eot0r ~ airport ~ Freeway i Railroads ~ PrimaryMaj0rAiternate ~ ..... r i' ~ ~ h~allS IQ k a is h~eserve [][]m~ Primacy MaJ0r Arteda! CLASS ~ Secondary Major Alternate N mmm~ Secondary Major Arterial COD labes flood 100 Maintained by TXDGT Road N0t Yet Built ~ Fatar¢ Resolution R98~065: Dec. 15, 1998 Amendment Date! Aug ! ~i ! 999 Existing Road Not ~0 class standard AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET March 2, 2004 Planning & Developmem Jon Fortune, Assistam City Manager SUBJECT A03-0002 (Village of Carmel) Hold the second of two public hearings to consider the volumary annexation and service plan for approximately 35.43 acres of land generally located north of Pockrus Page Road, west of Swisher Road, and south of Edwards Road in the southeastern section of the City of Denton Extraterritorial Jurisdiction (ET J). (Village of Carmel Annexation, A03-0002) BACKGROUND Applicam: Harold Holigan/Rita Beck, Dallas, TX A volumary annexation proceeding is being considered by the City of DeNon for the Village of Carmel. In accordance with the City's annexation policy plan, approved in June 1993, the City will "assess on a case by case basis" the annexation of areas in the ETJ when significant developments are proposed. The applicam, Harold Holigan/Rita Beck, has petitioned for the volumary annexation of approximately 35.43 acres of land imo the City. The 35.43 acres to be annexed will be part of a larger mixed-use developmem (114 acres) consisting of single-family homes, loft apartmems, town homes, neighborhood retail, and walking trails. The applicam has also submitted a zoning change application (Z03-0024) for the portions of the developmem that are already within our corporate city limits. City Council approved the zoning change applicam in its November 18, 2003 public hearing by a 7-0 vote. OPTIONS 1. Maimain land area. 2. Delete land area. 3. Amend Service Plan. 4. Deny. RECOMMENDATION Staff recommends that the second public hearing for A03-0002 is held as scheduled, and pending commems received; determine if additional information is needed. Staff recommends that the public hearings proceed as scheduled, finding that: The proposed annexation is exempt from the annexation plan requiremems by virtue of Section 43.052(h)(1) of the Texas Local Governmem Code. Section 43.052(h)(1) requires that the area to be annexed comain fewer that 100 separate tracts of land on which one or more residemial dwellings are located on each tract and will follow the annexation procedures under Subchapter C-i, Chapter 43 of the Local Governmem Code. o The need to manage and coordinate developmem in an orderly manner is a significam city objective that the City of DeNon will pursue. The annexation tract also contains acreage designated as Environmentally Sensitive Area, which have very importam water quality and flood comrol implications. The City of DeNon intends to preserve these areas to act as a natural flood channels, rather than allowing filling of floodplains and paying for expensive concrete-lined channels at a later date. ESTIMATED ANNEXATION SCHEDULE The annexation process will be completed by May 4, 2004 (see Attachmem 4). PRIOR ACTION/REVIEW Application Date 1 st CC Public Hearing 2nd CC Public Hearing September 24, 2003 February 17, 2004 March 2, 2004 FISCAL INFORMATION Annexation and development of this property will increase the assessed value of the city, county, and school district. It will require no short-term public improvemems that are the responsibility of the city. ATTACHMENTS 1. Service Analysis 2. Location Map 3. Public Notification (Property Owner Notification Map and Property Owner Responses) 4. Annexation Schedule 5. Draft Annexation Service Plan Prepared by: Chris D. Hatcher Planner II Planning and Developmem Respectfully submitted: Kelly Carpemer, AICP Director, Planning and Developmem ATTACHMENT 1 Police SERVICE ANALYSIS A03-0002 (Village of Carmel) Estimated average response time for this area based on current department conditions: Priority 10 minutes Non-priority 16 minutes Average 1:2 minutes Appropriate average response time in the city based on current department conditions: Priority 5 minutes Non-priority 12 minutes Average 7 minutes If annexed and developed as proposed will additional personnel be needed as a specific result of this proposal? No Will additional equipment and funding be needed to serve this area? No Will a police substation or other facility be needed to serve this area as a result of annexation and development? No 6. Please comment on the cumulative impact of annexation and development. At what population level would another police facility be required? We are currently utilizing all of our available space. There is currently no facility to population ratio being utilized. Is there an accepted facility/equipment to population ratio that can be used for planning purposes? There is no equipment or facility to population ratio currently being used. Is there an accepted officer to population ratio that can be used for planning purposes? Approx 1.4 officers per 1000 in population Additional Comments: We can provide service to this area immediately upon annexation. En.qineerinq and Transportation What existing roads, bridges and other transportation facilities will be impacted by this proposed annexation and development in terms of needed improvements or upgrades? Name and location Pockrus Page Swisher Rd Edwards Rd Internal streets Type of Improvement dev required 25ft of pvmnt/aft sdwlk dev required 25ft of pvmnt/aft sdwlk dev required 25ft of pvmnt/aft sdwlk dev required full width Approximate Cost $95/linft of frontage $95/linft of frontage $95/linft of frontage depends on type proposed &/or per TIA &/or mobility plan Are any of these improvements presently scheduled to be done at state or federal expense? No. If yes, please identify facility and anticipated date improvements will begin. Please list any drainage improvements that may require local funding, and include estimated cost (if no specific improvements can be determined, please make general comments concerning drainage). Will additional equipment and facilities be needed as a specific result of this annexation and development? Possibly. If yes, what type of equipment or facility? Developer participation in Traffic signal at Swisher/Pockrus Page, Swisher/Edwards, Mayhill/Colorado depending on TIA recommendations. 5. Please comment on the cumulative impact of annexation and development. At what population level would additional equipment be required? As recommended by TIA Is there an accepted equipment to population ratio that can be used for planning purposes? No. Fire 1. Fire and Emergency Medical Services can be provided to the area from station(s) # 3&6, located at McCormick and Teasley. Estimated response time. 12 minutes Appropriate response time in the City. 5 minutes Is a new fire station approved in the ClP that could serve this area? Yes. If yes, what is the ClP program year? 05~06. Will a new fire station be requested in upcoming ClP proposals to serve this area? No. If yes, when should this station be operational? Total estimated funding for equipment, employees and/or facilities needed to serve this area strictly based on annexation and proposed development. 3.3 million for the structure and equipment and 1.5 million for annual operating budget per station Please comment on the cumulative impact of annexation and development. At what population level would another fire station facility be required? No. Is there an accepted facility/equipment to population ratio that can be used for planning purposes? No. be used for planning Is there an accepted fire fighter to population ratio that can purposes? 1.5 firefighters per 1000 population. Additional Comments: Strategic fire station placement is developed by response times. is 1.5 mile radius for each fire station. A good rule of thumb Parks and Recreation What neighborhood park and recreational facilities are currently serving this area or are capable of serving this area if annexed and/or developed (federal, state, or local)? None are within the proposed annexation. The closest Denton Parks properties to the proposed annexation area are Briercliff Park, 0.85 miles, Denton Branch Rail Trail, 0.5 miles, and Pecan Creek Preserve Open Space Park, O. 5 miles and South Lakes Park, 3 miles. Current residents will be able to use existing City of Denton parks, facilities and programs. What projects and/or equipment will be needed to adequately serve this area if annexed and/or development based on the parks and recreation master plan or similar standards? The 2000 Denton Park and Recreation Master Plan indicates a need for a Community Park in the general area of the proposed annexation. Service Standards: Neighborhood Parks: 2.5 acres per 1,000 population (to be dedicated at time of development) 5 acres minimum size. (by developer) cost per acre. Community Parks: 3.0 acres per 1,000 population 30 acres minimum How much additional funding will be needed for maintenance if additional park facilities are developed to serve this area? $172,700.00 Service Standard: Based on $3,454 (developed) cost per acre. How many additional personnel would be needed to properly serve this area if annexed and developed? Two Service Standards: 0.5 to 0.7 FTE additional personnel per 1,000 population (depending on type of service) $38,000 per year cost per additional personnel Additional Comments: Denton Parks and Recreation Department will attempt to coordinate placement of park facilities proposed for development by the developer or use funds from the Park Land Dedication requirements to purchase or expand existing parks within the service area of this development Library Estimated additional funding needed strictly based on proposed annexation and development. None. Please comment on the cumulative impact of annexation and development. There will be no immediate impact on library services with this proposed annexation and development. 3. At what population level would another library facility be required? 100,000. Is there an accepted circulation to population ratio that can be used for planning purposes? Accepted average is 8.6 items circulated per capita. Is there an accepted employee to population ratio that can be used for planning purposes? Population per FTE employee is 1 per 4,711 Population per MLS professional librarian is 1 per 21,948. If annexed, can anticipated service demands be met using existing materials, facilities, and personnel? Yes, anticipated service demands can be met. If not, how many additional employees and what type of facilities and materials will be needed to provide services? Solid Waste 1. Is residential solid waste service available to the proposed area for annexation? Yes. 2. Is commercial solid waste service available to the proposed area for annexation? Yes. 3. What is the estimated cost to provide this area with solid waste service? Equipment and Maintenance: Dependent on service level required Personnel: Dependent on service level required What is the typical revenue collected per: Household: $15.00 / 30 days for a 96 gallon cart $2.07 / 30 days for curbside recycling Commercial Business: Dependent on size and service frequency of the container requested. Will additional equipment be needed to serve this area if annexed or developed? Type of Equipment: No Cost of Equipment: Not Applicable Will additional employees be needed to serve this area if annexed or developed? Type of Employees: No Number of Employees: Not Applicable Please comment on the cumulative impact of annexation and development. At what population level would additional equipment be required? Not Applicable. Is there an accepted equipment to population ratio that can be used for planning purposes? No. Is there an accepted employee to population ratio that can be used for planning purposes? No. Water/Wastewater What is the nearest City of Denton water line? Size of water line. 12"on Edwards Rd.(Under Construction Location of water line. 8" on Pockrus Page Rd Distance from proposed annexation, both are adjacent to site What is the nearest City of Denton sewer line? Size of sewer line. two 8" mains {see additional comments} Location of sewer line. Pockrus Page Road Distance from proposed annexation. 600' and 1200' west of annexation site at Pockrus Page Road According to the City of Denton master plan what type of lines and facilities would be required for this area and when are those lines and facilities proposed for construction. Size Year Location Water lines 12" By 2020 Edwards & Swisher Rd. Sewer lines None proposed Are there any City of Denton lines included in the proposed annexation? No water nor sewer 6. Please comment on the cumulative impact of annexation and development. At what population level would additional equipment be required? 18,750 Is there an accepted equipment to population ratio that can be used for planning purposes? One crew per 18,750 population Is there an accepted employee to population ratio that can be used for planning purposes? One employee per 5770 population Additional Comments: Discussions with developer have already resulted in agreement to extend large waterline from the 16" water main along Lakeview Boulevard. There are parallel 21" and 24" sewer mains along part of the west side of the proposed Villages of Carmel development. The development is large enough to warrant connection to this main(s). South of the property there is an oversized 12-inch sewer line on Lakeview Blvd. that flows into the Preserve Lift Station. The Preserve Lift Station was oversized to accommodate flows from the drainage basin within which the proposed area to be annexed lies. Drainaqe 1. What existing roads, bridges and other transportation facilities will be impacted by this proposed annexation and development in terms of needed improvements or upgrades? Name and location Edwards Road Pockrus Page Swisher Road Type of Improvement Perimeter Paving & Drainage Perimeter Paving & Drainage Perimeter Paving & Drainage Approximate Cost Developer Cost Developer Cost Developer Cost Are any of these improvements presently scheduled to be done at state or federal expense? No. If yes, please identify facility and anticipated date improvements will begin. Please list any drainage improvements that may require local funding, and include estimated cost (if no specific improvements can be determined, please make general comments concerning drainage). None. 4. Will additional equipment and facilities be needed as a specific result of this annexation and development? No. If yes, what type of equipment or facility? 5. Please comment on the cumulative impact of annexation and development. At what population level would additional equipment be required? N/A Is there an accepted equipment to population ratio that can be used for planning purposes? N/A Is there an accepted employee to population ratio that can be used for planning purposes? N/A ]0 Electric Utilities 1. What is the distance to, location of, and size of the nearest City of Denton electric line? DME has a main line on the south side of Pockrus Page Road that will be used to provide electric service. 2. What type of lines and facilities would be required to serve this area? DME will build underground lines throughout the development to provide electric service. 3. Are any new lines or facilities proposed for construction to serve this area? DME staff is designing an overhead main line on Edward Roads to serve this property and Timbers Apartments. 4. Are there any potential responsibilities if this area is annexed? Providing electric service and street lighting. 5. Please comment on the cumulative impact of annexation and development. At what population level would additional equipment be required? N/A Is there an accepted equipment to population ratio that can be used for planning purposes? N/A Is there an accepted employee to population ratio that can be used for planning purposes? N/A Additional Comments: Electric service will be provided by DME per commercial and residential requirements as appropriate. ATTACHMENT 2 Location Map NORTH A03-0002 (Villages of Carmel) Location Map 12 ATTACHMENT 3 Public Notification NORTH Notification Map 500 ft. o~ Public Notification Date: 200' Legal Notices* sent via Certified Mail: 500' Courtesy Notices* sent via 1st Class Mail: Number of responses to 200' Legal Notice · In Opposition: 1 · In Favor: 0 · Neutral: 0 February 2, 2004 11 40 Scale: None *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 13 Property Owner Responses Property Owner Name In favor and Address /Opposed* Comments Guy Wade Willis Opposed Opposed to annexation until City Council passes a tree 5376 Edwards Road ordinance and until I see what is to be built. *A copy of the original notice can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 4 ANNEXATION SCHEDULE A03-0002 The Village of Carmel Tuesday, 2/17/04 Tuesday, 3~2~04 Wednesday, 3/10/04 Tuesday, 3~23~04 Tuesday, 5/4/04 City Council conducts first public hearin.q. · Public notice must be no less than 10 days and no more than 20 days before public hearing. [] Annexation Study prepared and available for public review. [] Service Plan prepared and available for public review. City Council conducts second public hearin.q. · Public notice must be no less than 10 days and no more than 20 days before public hearing. Planning and Zoning Commission public hearings - make a recommendation to City Council regarding the proposed annexation and the proposed zonin,q. City Council by a four-fifths vote institutes annexation proceedings. First readinq of annexation ordinance. · Action must be more than 20 days after the second public hearing but less than 40 days from the first public hearing. City Council by a four-fifths vote takes final action. Second readinq and adoption of the annexation ordinance. City Council considers approval of zoning request. · Council action must be more than 30 days after publication of ordinance and less than 90 days after council institutes annexation proceedings (adopts ordinance on 1st reading). 15 ATTACHMENT 5 CITY OF DENTON ANNEXATION SERVICE PLAN A03-0002 (Village of Carmel) i. AREA ANNEXED The annexation area is located in the southeast portion of DeMon's Extraterritorial Jurisdiction and comains approximately 35.43 acres generally located north of Pockrus Page Road, south of Edwards Road, and west of Swisher Road. ii. INTRODUCTION This service plan has been prepared in accordance with the Texas Local Governmem Code, Sections 43.021, 43.065, and 43.065(b)-(o) (Vernon 1999, as amended). Municipal facilities and services to the annexed area described above will be provided or made available on behalf of the City in accordance with the following plan. The City shall provide the annexed tract the levels of service, infrastructure, and infrastructure maintenance that are comparable to the levels of service, infrastructure, and infrastructure maimenance available in other parts of the city with similar topography, land use, and population density. iii. AD VALOREM (PROPERTY OWNER) TAX SERVICES Police Protection, Code Enforcement, and Animal Control Police service, including patrolling, response to calls, and other routine functions, will be provided to the property upon the effective date of the annexation using existing personnel and equipment. Code enforcement and animal comrol services will also be provided to the property upon the effective date of the annexation. Fire Protection Fire protection (within the limits of existing hydrams) and emergency medical services will be provided to the property upon the effective date of the annexation. The estimated emergency response time in this area is 12 minutes, which is similar to responses for surrounding properties within the city limits. The City of Demon will provide emergency medical services ("EMS"). Roads and Streets Roads and streets, which have been properly platted, duly dedicated, and accepted by the City of Denton and/or Denton County shall be maintained by the City of Denton on the effective date of the annexation. Installation and maintenance of street signs, street lighting and traffic control devices will be maimained by the City of Demon on the effective date of the annexation. 16 Parks and Recreation Facilities Parks and recreational facilities in the area to be annexed will begin upon the effective date of the annexation according to the 2000 Parks and Recreation Master Plan. No parks are currently located within the proposed annexation area. DeNon neighborhood park facilities are located within reasonably close distance of the proposed annexation area. Residems of the proposed annexation area will be able to use existing City of Denton park and recreation facilities and programs. Library Services Library services will be made available on the effective date of the annexation on the same basis and at the same level as similar library facilities are maimained throughout the city. Building Inspections and Consumer Health Services Building inspections and consumer health services will be made available on the effective date of the annexation on the same basis and at the same level as similar facilities are maimained throughout the City. Both services are provided on a "cost recovery" basis, and permit fees offset the costs of services delivered. Incomplete construction must obtain building permits from the Building Inspections Department of the City of Denton. Planning and Development Services Planning and developmem services will be made available on the effective date of the annexation. The Planning and Development Department curremly services this property by way of administration of Chapter 34 of the Code of Ordinances, concerning subdivision and land developmem regulations. City Council adopted The DeNon Plan, the city's 1999-2020 comprehensive plan, by Ordinance 99-439 on December 7, 1999. The Future Land Use Plan addresses both land in the city and its ET J, and the subject tracts comain Neighborhood Cemers and 100 year Floodplain/ Environmentally Sensitive Areas. The Denton Plan designates future land uses to manage the quality and quamity of growth by organizing the land use patterns, by matching land use imensity with available infrastructure, and by preserving floodplains as environmemal and open space corridors. The DeNon Plan will be used as a basis for final zoning classifications after the properties are annexed. IV. UTILITY (RATEPAYER) SERVICES A. Solid Waste Collection Solid Waste Annexation Service Plan for A03-0002 (Village of Carmel) 17 The City of DeNon is the exclusive residemial and commercial Solid Waste service provider within DeMon's city limits. The City Ordinance requires Solid Waste services for all residences and commercial businesses located in the City. The City of DeNon Solid Waste Departmem is fully funded through the service fees charged, and receives no funding from city tax revenues. Solid waste refuse collection services will be provided to the newly annexed property immediately upon the effective date of the annexation. To request Solid Waste collection services, please telephone the City of Denton Customer Service Department at 940-349-8210 and submit an application to initiate service. To obtain City of Denton Solid Waste schedule, service, and rate information, please telephone the Solid Waste Customer Relations office at 940-349-8420. Commercial customers are required to complete and submit a Service Agreement to Solid Waste Customer Relations prior to commencing service. Residemial Comainerized Refuse Service Each residemial address will be provided a 96-gallon wheeled refuse cart, which will be serviced one time per week. Residems are required to place their refuse cart(s) at the curb prior to 7:00 a.m. on their collection day. Carts should be placed at the curb for collection no earlier than 6:00 p.m. the evening prior to their collection day. Carts are to be removed from the curb no later than 6:00 a.m. on the day following their collection day. All refuse placed in the cart for collection must be bagged to eliminate wind blown debris and littering. Refuse that is not placed in the cart with the lid closed will not be collected. Additional carts may be provided for an additional momhly charge. Smaller carts are available for a lower momhly charge. Weekly brush service is provided. Residemial Curbside Recycling Service Curbside recycling services are provided to all residemial solid waste service customers. Commercial Refuse Service Each commercial business will be provided with a commercial comainer(s), which are available in a variety of sizes and frequencies of collection, based on the waste generated. All refuse placed in the container for collection must be bagged to eliminate wind blown debris and littering. Refuse that is not placed in the container with the lid closed will not be collected. Refuse placed outside the comainer is subject to code enforcement regulations, including potential fines. 18 Landfill Service The City of DeNon Solid Waste Landfill hours of operation are 7:00 a.m. to 4:00 p.m. Monday through Friday; and 7:00 a.m. to 12:00 p.m. on Saturdays. For information regarding disposal charges, call the Landfill Office at 940-349-7510. Water/Wastewater Facilities Maintenance of water and wastewater facilities in the area to be annexed that are not within the service area of another water or wastewater utility will begin upon the effective date of the annexation using existing personnel and equipmem. Curremly, the majority of the area to be annexed is not provided with water or sewer service. A small public water system, Swisher Road WSC, serves an area east of the annexation area along Swisher Road. Sewage disposal within the Swisher Road WSC area is by private, on-site drainfield systems. A City of Denton waterline exists adjacem to the annexation area. Additional water and sewer lines are located along the boundaries of the annexation area. The City shall provide a level of water and wastewater service, infrastructure, and infrastructure maintenance that is comparable to the level of services, infrastructure, and infrastructure maintenance available in other parts of the city with topography, land use, and population density similar to those reasonably comemplated or projected in the area. Drainage Services Drainage maimenance will be provided to the property upon the effective date of the annexation. The City shall provide a level of drainage services, infrastructure, and infrastructure maintenance that is comparable to the level of services, infrastructure, and infrastructure maintenance available in other parts of the city with topography, land use, and population density similar to those reasonably comemplated or projected in the area. Electrical Services Denton Municipal Electric is certified by the State and is obligated to provide electric utility service to the annexation area should a request be made by a property owner. Electric utility service will be made available on the effective date of the annexation on the same basis and at the same level as similar facilities are maimained throughout the city. DeNon Municipal Electric is the current electric service provider for this site. V. OTHER SERVICES Other services that may be provided by the City, such as municipal and general administration will be made available on the effective date of the annexation. The City shall provide a level of services, infrastructure, and infrastructure maintenance that is comparable to the level of services, infrastructure, and infrastructure maintenance available in other parts of the 19 City with topography, land use, and population density similar to those reasonably contemplated or projected in the area. WI. CAPITAL IMPROVEMENTS PROGRAM (CIP) No new construction of additional water, sewer, street, and drainage facilities is contemplated within the annexed area as a result of this annexation because the annexed area on the date of annexation will have a level of full municipal services equal to other areas within the City having similar characteristics of topography, land use, and population density. Thus, no construction of public improvements is contemplated as a result of this annexation that would begin within two and a half (2 ½) years after the effective date of the annexation. The City shall consider construction of other public improvements as the needs dictate on the same basis as such public improvements are considered throughout the City for areas having similar characteristics of topography, land use, and population density. WlI. UNIFORM LEVEL OF SERVICES MAY NOT BE REQUIRED Nothing in this plan shall require the City to provide a uniform level of full municipal services to each area of the City, including the annexed area, if different characteristics of topography, land use, and population density are considered a sufficient basis for providing different levels of service. Will. TERM This service plan shall be valid for a term of ten (10) years. Renewal of the service plan shall be at the discretion of City Council. IX. AMENDMENTS The service plan may be amended if the City Council determines at a public hearing that changed conditions or subsequent occurrences make this service plan unworkable or obsolete. The City Council may amend the service plan to conform to the changed conditions or subsequent occurrences pursuant to Texas Local Government Code, Section 43.056 (Vernon Supp. 2000). 20 AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET March 2, 2004 Planning & Developmem Jon Fortune, Assistam City Manager SUBJECT A03-0003 (Flowers Baking Company) Hold the second of two public hearings to consider the volumary annexation and service plan for approximately 19.51 acres of land generally located north of Pockrus Page Road, east of Mayhill Road, and south of Edwards Road in the southeastern section of the City of Denton Extraterritorial Jurisdiction (ET J). (Flowers Baking Company Annexation, A03-0003) BACKGROUND Applicam: Flowers Baking Co. of Demon, LLC Demon, TX A volumary annexation proceeding is being considered by the City of DeNon for Flowers Baking Company property. In accordance with the City's annexation policy plan, approved in June 1993, the City will "assess on a case by case basis" the annexation of areas in the ETJ when significam developmems are proposed. The applicam, Flowers Baking Co. of Demon, LLC, has petitioned for the volumary annexation of approximately 19.51 acres of land imo the City. The applicam is not proposing to develop the property at this time. OPTIONS 1. Maintain land area. 2. Delete land area. 3. Amend Service Plan. 4. Deny. RECOMMENDATION Staff recommends that the second public hearing for A03-0003 is held as scheduled, and pending commems received; determine if additional information is needed. Staff recommends that the public hearings proceed as scheduled, finding that: The proposed annexation is exempt from the annexation plan requiremems by virtue of Section 43.052(h)(1) of the Texas Local Governmem Code. Section 43.052(h)(1) requires that the area to be annexed comain fewer that 100 separate tracts of land on which one or more residemial dwellings are located on each tract and will follow the annexation procedures under Subchapter C-i, Chapter 43 of the Local Governmem Code. The need to manage and coordinate developmem in an orderly manner is a significam city objective that the City of DeNon will pursue. ESTIMATED ANNEXATION SCHEDULE The annexation process will be completed by May 4, 2004 (see Attachment 4). PRIOR ACTION/REVIEW Application Date November 24, 2003 1 st CC Public Hearing February 17, 2004 2nd CC Public Hearing March 2, 2004 FISCAL INFORMATION Annexation of this property will increase the assessed value of the city. public improvements that are the responsibility of the city. ATTACHMENTS 1. 2. 3. 4. 5. It will require no short-term Service Analysis Location Map Public Notification (Property Owner Notification Map and Property Owner Responses) Annexation Schedule Draft Annexation Service Plan Prepared by: Chris D. Hatcher Planner II Planning and Development Respectfully submitted: Kelly Carpenter, AICP Director, Planning and Development ATTACHMENT 1 Police SERVICE ANALYSIS A03-0003 (Flowers Baking Company) Estimated average response time for this area based on current department conditions: Priority 7 minutes Non-priority 2 minutes Average 9 minutes Appropriate average response time in the city based on current department conditions: Priority 5 minutes Non-priority 12 minutes Average 7 minutes If annexed and developed as proposed will additional personnel be needed as a specific result of this proposal? No. Will additional equipment and funding be needed to serve this area? No. Will a police substation or other facility be needed to serve this area as a result of annexation and development? No. 6. Please comment on the cumulative impact of annexation and development. At what population level would another police facility be required? We are currently utilizing all of our available space. There is currently no facility to population ratio being utilized. Is there an accepted facility/equipment to population ratio that can be used for planning purposes? There is no equipment or facility to population ratio currently being used. Is there an accepted officer to population ratio that can be used for planning purposes? Approximately 1.4 officers per 1000 in population. Additional Comments: We can provide service to this area immediately upon annexation. Eric Parkey, Police Dept. Person to contact if there are questions 1/19~2004 Date En.qineerinq and Transportation What existing roads, bridges and other transportation facilities will be impacted by this proposed annexation and development in terms of needed improvements or upgrades? Name and location Type of Improvement none, developer required Approximate Cost Are any of these improvements presently scheduled to be done at state or federal expense? No. If yes, please identify facility and anticipated date improvements will begin. Please list any drainage improvements that may require local funding, and include estimated cost (if no specific improvements can be determined, please make general comments concerning drainage). As I understand it, Flowers Bakery has no plans to develop the proposed annexation property at this time. The site is mostly agricultural prairie lightly wooded with a larqe pond near the northwest portion of the site. All drainaqe enters the pond and a swale runninq south to north throuqh the property and includes a maior portion of the former Andrews site. This drainaqe exits the property to the north and crosses Edwards Road through a box culvert recently constructed by the City. The property to the north of Edward Road is beinq developed as a Timbers of Denton apartments .qolf course development. Bottom line: No drainaqe infrastructure needs to be constructed by the City in association with this annexation request. Any infrastructure improvements required with future development of this property by the Owner will be the responsibility of the Owned Developer Will additional equipment and facilities be needed as a specific result of this annexation and development? No. If yes, what type of equipment or facility? Please comment on the cumulative impact of annexation and development. At what population level would additional equipment be required? N/A Is there an accepted equipment to population ratio that can be used for planning purposes? N/A Is there an accepted employee to population ratio that can be used for planning purposes? N/A Additional Comments: None. Bud Vokoun, Transportation Ed Witkowski, Drainaqe 01/09/04 Person to contact if there are questions: Fire Date Fire and Emergency Medical Services can be provided to the area from station(s) # 6, located at 3200 block of Teasley Lane. Estimated response time. 5 minutes Appropriate response time in the City. 5 minutes Is a new fire station approved in the CIP that could serve this area? No. If yes, what is the CIP program year? Will a new fire station be requested in upcoming CIP proposals to serve this area? No. If yes, when should this station be operational? Total estimated funding for equipment, employees and/or facilities needed to serve this area strictly based on annexation and proposed development. None Please comment on the cumulative impact of annexation and development. At what population level would another fire station facility be required? 1 per 20,000 Is there an accepted facility/equipment to population ratio that can be used for planning purposes? 1 per:20,000 Is there an accepted fire fighter to population ratio that can be used for planning purposes? 1 per 1,000 Additional Comments: The Denton Fire Department already services this area. Rick Jones 940-349-8860 Person to contact if there are questions 01/09/04 Date Parks and Recreation What neighborhood park and recreational facilities are currently serving this area or are capable of serving this area if annexed and/or developed (federal, state, or local)? None are within the proposed annexation. The closest Denton Parks properties to the proposed annexation area are, Denton Branch Rail Trail, adjacent to site, Briercliff Park, 0.85 miles, and Pecan Creek Preserve Open Space Park, O. 5 miles and South Lakes Park, 3 miles. Since this site is not planned for residential development, the annexation will not have any negative impact on Park and Recreation services. Current area residents will be able to use existing City of Denton parks, facilities and programs. What projects and/or equipment will be needed to adequately serve this area if annexed and/or development based on the parks and recreation master plan or similar standards? N/A. Service Standards: Neighborhood Parks: Community Parks: 2.5 acres per 1,000 population 5 acres minimum size. (by developer) cost per acre. 3.0 acres per 1,000 population 30 acres minimum How much additional funding will be needed for maintenance if additional park facilities are developed to serve this area? N/A Service Standard: cost per acre. How many additional personnel would be needed to properly serve this area if annexed and developed? N/A Service Standards: 0.5 to 0.7 FTE additional personnel per 1,000 population (depending on type of service) N/A cost per additional personnel Additional Comments: Since this site is not planned for residential development, the annexation will not have any negative impact on Park and Recreation services. Bob Tickner, Superintendent of Park Plannin.q and Development Person to contact if there are questions 1-20-04 Date Library 3. 4. 5. Estimated additional funding needed strictly based on proposed annexation and development. $0.00 Please comment on the cumulative impact of annexation and development. The proposed annexation will have no cumulative impact on library services. At what population level would another library facility be required? 90,000 Is there an accepted circulation to population ratio that can be used for planning purposes? Yes. 6.34 per capita Is there an accepted employee to population ratio that can be used for planning purposes? Yes. Masters degreed librarian (MLS) per 1,000 of population or .11 and full-time equivalent staff per 1,000 of population or .462 At what population level would another library facility be required? 90,000 Is there an accepted circulation to population ratio that can be used for planning purposes? Yes. See #4 above Is there an accepted employee to population ratio that can be used for planning purposes? Yes. See #5 above If annexed, can anticipated service demands be met using existing materials, facilities, and personnel? Yes If not, how many additional employees and what type of facilities and materials will be needed to provide services? Additional Comments: None. Eva Poole, Director of Libraries Person to contact if there are questions January 16, 2004 Date Solid Waste Is residential solid waste service available to the proposed area for annexation? Yes Is commercial solid waste service available to the proposed area for annexation? Yes What is the estimated cost to provide this area with solid waste service? Equipment and Maintenance. Dependent on service level required Personnel. Dependent on service level required What is the typical revenue collected per: Household $15.00 / 30 days for a 96 gallon cart $2.07 / 30 days for curbside recycling Commercial Business: Dependent on size and service frequency of the container requested. Will additional equipment be needed to serve this area if annexed or developed? Type of Equipment. No Cost of Equipment. Not Applicable Will additional employees be needed to serve this area if annexed or developed? Type of Employees. No Number of Employees. Not Applicable Please comment on the cumulative impact of annexation and development. At what population level would additional equipment be required? Not Applicable Is there an accepted equipment to population ratio that can be used for planning purposes? No Is there an accepted employee to population ratio that can be used for planning purposes? No Additional Comments: None S. Lebsack 349-8069 Personto contactifthere are questions January 20,2004 Date Water/Wastewater What is the nearest City of Denton water line? Size of water line. 12" Location of water line. South side of Edwards Road Distance from proposed annexation. Adjacent What is the nearest City of Denton sewer line? Size of sewer line. parallel 21" and 24" mains Location of sewer line. through Flowers property Distance from proposed annexation, adjacent or through area According to the City of Denton master plan what type of lines and facilities would be required for this area and when are those lines and facilities proposed for construction. Size Year Location Water lines n/a Sewer lines n/a Are there any City of Denton lines included in the proposed annexation? Parallel 21" and 24" sewer mains 5. Please comment on the cumulative impact of annexation and development. At what population level would additional equipment be required? 18,750 Is there an accepted equipment to population ratio that can be used for planning purposes? One crew per 18,750 population Is there an accepted employee to population ratio that can be used for planning purposes? One employee per 5770 population Additional Comments: The former Andrews Corporation ( now Flowers Food) building is presently served by City of Denton water and sewer. Scott Jordan, P.E. 940-349-8350 Person to contact if there are questions 1 ~20~04 Date Electric Utilities 1. What is the distance to, location of, and size of the nearest City of Denton electric line? The south property has a utility easement with a DME overhead main line. In addition the Pockrus 138 kV / 13.2 kV substation is located across the Rails to Trails from this site. What type of lines and facilities would be required to serve this area? DME would need to build facilities directly involved with providinq electric service to Flower's Food (primary line and transformers). Are any new lines or facilities proposed for construction to serve this area? Additional main lines are planned out of the Pockrus Substaion. The routes of the main lines have not been determined at this time. 4. Are there any potential responsibilities if this area is annexed? N/A 5. Please comment on the cumulative impact of annexation and development. At what population level would additional equipment be required? N/A Is there an accepted equipment to population ratio that can be used for planning purposes? N/A Is there an accepted employee to population ratio that can be used for planning purposes? N/A Additional Comments: DME is talking with Flower's Food about the possibility of DME providing electric service to this site. Bill Bunselmeyer (940) 349-7328 Person to contact if there are questions 1 / 12 / 2004 Date ]0 ATTACHMENT 2 Location Map NORTH A03-0003 (Flowers Baking Company) CANARY LEAFY' BLUE JAY Location Map 11 ATTACHMENT 3 Public Notification NORTH Notification Map Public Notification Date: 200' Legal Notices* sent via Certified Mail: 500' Courtesy Notices* sent via 1st Class Mail: Number of responses to 200' Legal Notice · In Opposition: 0 · In Favor: 0 · Neutral: 0 February 2, 2004 3 4 Scale: None *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 12 ATTACHMENT 4 ANNEXATION SCHEDULE A03-0003 Flowers Baking Company Tuesday, 2/17/04 Tuesday, 3~2~04 Wednesday, 3/10/04 Tuesday, 3~23~04 Tuesday, 5/4/04 City Council conducts first public hearin.q. · Public notice must be no less than 10 days and no more than 20 days before public hearing. [] Annexation Study prepared and available for public review. [] Service Plan prepared and available for public review. City Council conducts second public hearin.q. · Public notice must be no less than 10 days and no more than 20 days before public hearing. Planning and Zoning Commission public hearings - make a recommendation to City Council regarding the proposed annexation and the proposed zonin,q. City Council by a four-fifths vote institutes annexation proceedings. First readinq of annexation ordinance. · Action must be more than 20 days after the second public hearing but less than 40 days from the first public hearing. City Council by a four-fifths vote takes final action. Second readinq and adoption of the annexation ordinance. City Council considers approval of zoning request. · Council action must be more than 30 days after publication of ordinance and less than 90 days after council institutes annexation proceedings (adopts ordinance on 1st reading). 13 ATTACHMENT 5 CITY OF DENTON ANNEXATION PLAN FOR A03-0003 (Flowers Baking Company) i. AREA ANNEXED The annexation area is located in the southeast portion of DeMon's Extraterritorial Jurisdiction and comains approximately 19.51 acres generally located north of Pockrus Page Road, south of Edwards Road, and east of Mayhill Road. ii. INTRODUCTION This service plan has been prepared in accordance with the Texas Local Governmem Code, Sections 43.021, 43.065, and 43.065(b)-(o) (Vernon 1999, as amended). Municipal facilities and services to the annexed area described above will be provided or made available on behalf of the City in accordance with the following plan. The City shall provide the annexed tract the levels of service, infrastructure, and infrastructure maintenance that are comparable to the levels of service, infrastructure, and infrastructure maimenance available in other parts of the city with similar topography, land use, and population density. iii. AD VALOREM (PROPERTY OWNER) TAX SERVICES Police Protection, Code Enforcement, and Animal Control Police service, including patrolling, response to calls, and other routine functions, will be provided to the property upon the effective date of the annexation using existing personnel and equipment. Code enforcement and animal comrol services will also be provided to the property upon the effective date of the annexation. Fire Protection Fire protection (within the limits of existing hydrams) and emergency medical services will be provided to the property upon the effective date of the annexation. The estimated emergency response time in this area is 5 minutes, which is similar to responses for surrounding properties within the city limits. The City of Demon will provide emergency medical services ("EMS"). Roads and Streets Roads and streets, which have been properly platted, duly dedicated, and accepted by the City of Denton and/or Denton County shall be maintained by the City of Denton on the effective date of the annexation. Installation and maintenance of street signs, street lighting and traffic control devices will be maimained by the City of Demon on the effective date of the annexation. 14 IV. Parks and Recreation Facilities Parks and recreational facilities in the area to be annexed will begin upon the effective date of the annexation according to the 2000 Parks and Recreation Master Plan. No parks are currently located within the proposed annexation area. DeNon neighborhood park facilities are located within reasonably close distance of the proposed annexation area. Residems of the proposed annexation area will be able to use existing City of Denton park and recreation facilities and programs. Library Services Library services will be made available on the effective date of the annexation on the same basis and at the same level as similar library facilities are maimained throughout the city. Building Inspections and Consumer Health Services Building inspections and consumer health services will be made available on the effective date of the annexation on the same basis and at the same level as similar facilities are maimained throughout the City. Both services are provided on a "cost recovery" basis, and permit fees offset the costs of services delivered. Incomplete construction must obtain building permits from the Building Inspections Department of the City of Denton. Planning and Development Services Planning and developmem services will be made available on the effective date of the annexation. The Planning and Development Department curremly services this property by way of administration of Chapter 34 of the Code of Ordinances, concerning subdivision and land developmem regulations. City Council adopted The DeNon Plan, the city's 1999-2020 comprehensive plan, by Ordinance 99-439 on December 7, 1999. The Future Land Use Plan addresses both land in the city and its ET J, and the subject tracts comain Neighborhood Cemers and 100 year Floodplain/ Environmentally Sensitive Areas. The Denton Plan designates future land uses to manage the quality and quamity of growth by organizing the land use patterns, by matching land use imensity with available infrastructure, and by preserving floodplains as environmemal and open space corridors. The DeNon Plan will be used as a basis for final zoning classifications after the properties are annexed. UTILITY (RATEPAYER) SERVICES A. Solid Waste Collection Solid Waste Annexation Service Plan for A03-0003 (Flowers Baking Co.) 15 The City of Demon is the exclusive residemial and commercial Solid Waste service provider within Demon's city limits. The City Ordinance requires Solid Waste services for all residences and commercial businesses located in the City. The City of Demon Solid Waste Departmem is fully funded through the service fees charged, and receives no funding from city tax revenues. Solid waste refuse collection services will be provided to the newly annexed property immediately upon the effective date of the annexation. To request Solid Waste collection services, please telephone the City of Denton Customer Service Department at 940-349-8210 and submit an application to initiate service. To obtain City of Denton Solid Waste schedule, service, and rate information, please telephone the Solid Waste Customer Relations office at 940-349-8787. Commercial customers are required to complete and submit a Service Agreement to Solid Waste Customer Relations prior to being provided services. Commercial Refuse Services Each commercial business will be provided with a commercial comainer(s). Comainers are available in a variety of sizes utilizing both from load and roll off service. Collection frequencies will be established based on the container size selected and the waste volume generated. The most economical service is obtained by requesting the largest container available for the area, with the least amount of collection services possible. All refuse placed in the comainer for collection must be bagged to eliminate wind blown debris and littering. Refuse that is not placed in the comainer with the lid closed will not be collected. Refuse placed outside the comainer is subject to code enforcemem regulations, including potential fines. Commercial recycling services may be available. Please comact the Solid Waste Recycling Division at 940-349-8054 to discuss the potential for the City to provide commercial recycling services and to obtain recycling rate information. The construction and service requirements provided in the Denton Developmem Plan apply for all new developmem. For specific solid waste questions concerning commercial services or construction issues, please contact the Solid Waste Department at 940-349-8069. Landfill Service The City of Demon Solid Waste Landfill hours of operation are 7:00 a.m. to 4:00 p.m. Monday through Friday; and 7:00 a.m. to 12:00 p.m. on Saturdays. For disposal information and rates, please contact the Landfill Office at 940-349-7510. 16 VI. Water/Wastewater Facilities Maintenance of water and wastewater facilities in the area to be annexed that are not within the service area of another water or wastewater utility will begin upon the effective date of the annexation using existing personnel and equipmem. Curremly, the majority of the area to be annexed is not provided with water or wastewater service. City of Denton water and sewer lines are located along the boundaries of the annexation area. The City shall provide a level of water and wastewater service, infrastructure, and infrastructure maintenance that is comparable to the level of services, infrastructure, and infrastructure maintenance available in other parts of the city with topography, land use, and population density similar to those reasonably comemplated or projected in the area. Drainage Services Drainage maimenance will be provided to the property upon the effective date of the annexation. The City shall provide a level of drainage services, infrastructure, and infrastructure maintenance that is comparable to the level of services, infrastructure, and infrastructure maintenance available in other parts of the city with topography, land use, and population density similar to those reasonably comemplated or projected in the area. Electrical Services Denton Municipal Electric is certified by the State and is obligated to provide electric utility service to the annexation area should a request be made by a property owner. Electric utility service will be made available on the effective date of the annexation on the same basis and at the same level as similar facilities are maimained throughout the city. DeNon Municipal Electric is the current electric service provider for this site. OTHER SERVICES Other services that may be provided by the City, such as municipal and general administration will be made available on the effective date of the annexation. The City shall provide a level of services, infrastructure, and infrastructure maintenance that is comparable to the level of services, infrastructure, and infrastructure maintenance available in other parts of the City with topography, land use, and population density similar to those reasonably comemplated or projected in the area. CAPITAL IMPROVEMENTS PROGRAM (CIP) No new construction of additional water, sewer, street, and drainage facilities is contemplated within the annexed area as a result of this annexation because the annexed area on the date of annexation will have a level of full municipal services equal to other areas within the City having similar characteristics of topography, land use, and population density. Thus, no construction of public improvements is contemplated as a result of this annexation that would begin 17 within two and a half (2 1/2) years after the effective date of the annexation. The City shall consider construction of other public improvements as the needs dictate on the same basis as such public improvements are considered throughout the City for areas having similar characteristics of topography, land use, and population density. Vii. UNIFORM LEVEL OF SERVICES MAY NOT BE REQUIRED Nothing in this plan shall require the City to provide a uniform level of full municipal services to each area of the City, including the annexed area, if different characteristics of topography, land use, and population density are considered a sufficient basis for providing different levels of service. Viii. TERM This service plan shall be valid for a term of ten (10) years. service plan shall be at the discretion of City Council. Renewal of the IX. AMENDMENTS The service plan may be amended if the City Council determines at a public hearing that changed conditions or subsequent occurrences make this service plan unworkable or obsolete. The City Council may amend the service plan to conform to the changed conditions or subsequent occurrences pursuant to Texas Local Government Code, Section 43.056 (Vernon Supp. 2000). 18 AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET March 2, 2004 Planning and Development Departmem John Fortune, Assistant City Manager SUBJECT: ADP03-0009 (Denton Bible Church) Hold a public hearing and consider adoption of an ordinance regarding the Alternative Developmem Plan for approximately 32 acres located in a Neighborhood Residemial Mixed Use (NRMU) zoning district. The property is generally located approximately 350 feet east of Nottingham Drive, between University Drive and Mingo Road. The Planning and Zoning Commission recommends approval (6-0; Commissioner Roy absem). BACKGROUND Applicam: Alliance Architects, Inc. Richardson, Texas The applicant is requesting the Alternative Development Plan to allow for parking between the building and University Drive. The Developmem Code does not allow parking between the building and the street. Section 35.13.13.4(A)8 of the Developmem Code which states; "Parking areas shall be located behind buildings or on one or both sides, except along the imerstate where a minimum fifteen foot (15') additional landscape area will be required along parking areas in from of a building." The intent of the code is to create a streetscape by locating the building along the street and locating parking to the side and rear of the building. The applicam is proposing additional landscaping, including trees and hedges, as well as brick columns (pylons), along University Drive to mitigate the location of the proposed parking. (Attachment 5) Staff held a predesign meeting with the applicant on September 4, 2003. At that time staff informed the applicant that: · The proposed parking between the building and the street would not be permitted. · Approval of an Alternative Developmem Plan (ADP) would be required in order to develop the site with parking located between the building and street. · Additional landscaping and hardscaping (fences, walls columns), along the fromage of University Drive should be considered to meet the intern of the code by creating a streetscape along University. Section 35.13.5 states that an applicant may propose an Alternative Development Plan, which meets or exceeds the design objectives of this Subchapter but does not meet the standards of this Subchapter. It further idemifies the following Criteria for Approval of an ADP. The goals and objectives which must be met, and by which the proposal will be judged are: 1. Preserve Existing Neighborhoods. 2. Assure quality development that fits in with the character of Denton. 1 3. Focus new development to activity centers to curb strip development and urban sprawl. 4. Ensure that infrastructure is capable of accommodating development prior to the developmem occurring. The staff analysis of these criteria are in Attachment 1. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval of the Alternative Development Plan as proposed by the applicant (6-0; Commissioner Roy absent). ESTIMATED PROJECT SCHEDULE The subject property is not platted. Preliminary and final plats are required prior to issuance of building permits. PRIOR ACTION/REVIEW The following is a chronology of ADP03-0009, commonly known as DeNon Bible Church: Ordinance 2002-040, adopted on February 20, 2002 placed the subject property in Neighborhood Residemial Mixed Use (NRMU) zoning district and land use classification. Prior to the adoption of the Developmem Code, the property was zoned Single Family 7 (SF-7) and Multi-Family 2 (MF-2). A Predesign meeting was held September 4, 2003. ATTACHMENTS 1. Staff'Analysis 2. Location/Zoning & Land Use Maps 3. Notification Map & Information 4. Site Photos 5. ADP - Site Plan 6. Applicams power poim presemation 7. Planning & Zoning Commission Meeting Minutes, January 28, 2004 8. Ordinance Prepared by: Chris Fuller Planner I Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary of Request The site is approximately 32 acres and is located in the Neighborhood Residemial Mixed Use (NRMU) zoning district. The applicam proposes to develop a church, chapel and educational facility on the property. The applicam is requesting approval of an Alternative Developmem Plan to allow for parking between the church and University Drive. Given the scale of the development, the applicant contends that parking behind and to the side of the church will provide an undo burden by requiring visitors to walk to the front of the structure to enter the primary emrance, which faces University. The applicam is proposing additional landscaping and pylons (hardscape elemems) to mitigate the impact of the parking in from of the building (Attachment 6). The applicant has proposed their intentions to meet or exceed all other site design requiremems. Existing Condition of Property Adjacem zoning: North: Commercial Mixed Use General (CM-G) South: Neighborhood Residemial 2 (NR-2) East: Neighborhood Residemial Mixed Use (NRMU) West: Neighborhood Residemial 3 (NR-3) Comprehensive Plan Analysis The site is located in an "Existing Neighborhoods/Infill Compatibility" future land use area. New development in this district should respond to existing development with compatible land uses, patterns and design standards. The plan recommends that existing neighborhoods within the city be vigorously protected and preserved. Housing that is compatible with the existing density, neighborhood service, and commercial land uses is allowed. The Demon Plan defines compatibility as: "The characteristics of differem uses or activities or design which allow them to be located near or adjacem to each other in harmony ... Compatibility does not mean "the same as." Rather, compatibility refers to the sensitivity of developmem proposals in maimaining the character of existing developmem" (p. 188). Proposed new developmem will be compatible with the existing uses and zoning of the surrounding properties at this time. Development Code/Zoning Analysis The Neighborhood Residemial Mixed Use (NRMU) zoning designation allows for the development of the proposed church and its related uses. The Development Code states that parking areas shall not exist between the street and the building. Generally, prohibiting parking between the building and the street encourages buildings along roads, which creates streetscapes. Given the large scale and mass of the proposed building, it is reasonable to locate the church and its facilities back from the roadway. Additionally, a building of this size might be too overpowering if it were entirely located adjacent to the street. In order to locate the building in the center of the site and mitigate the placement of parking between the building and the street the applicant is proposing additional landscaping, a hedge and brick columns and short walls (Attachment 5 & 6) along University Drive (Attachment 5). The intent of the additional landscaping and hardscape is to create a streetscape and lessen the appearance of parking along the roadway. The proposed streetscape (Attachment 5 & 6) is consistent with the intent of the Development Code. Alternative Development Plan Criteria An applicant may propose an Alternative Development Plan, which meets or exceeds the design objectives of Subchapter 35.13 but does not meet the standards of Subchapter 35.13. The Alternative Development Plan provides the option to address the design criteria through a flexible discretionary process. The criteria for approval is as follows: 1. Preserve Existing Neighborhoods. The proposed ADP will have no impact on existing neighborhoods in the area. 2. Assure quality development that fits with the character of Denton. Although there is little development along University in this area, future development is required to meet the same standards of the Development Code. By providing an alternative streetscape, the proposed site would be compatible to future development in the area. 3. Focus on new development to activity centers to curb strip development and urban sprawl. The urban sprawl and strip development requirement does not apply. 4. Ensure that infrastructure is capable of accommodating development prior to the development occurring. Adequate infrastructure exists to service the proposed development. Staff Findings The proposed Alternative Development Plan is consistent with the intent of the Development Code. Staff Recommendation Based on above findings staff recommends approval of the requested Alternative Development Plan. ATTACHMENT 2 Location/Zoning Map NORTH Land Use Map Scale: None ATTACHMENT 3 Notification Map NORTH 500' Scale: None Public Notification Date January 18, 2004 200' Legal Notices* sent via Certified Mail: 10 Number of responses to 200' Legal Notice · In Opposition: 0 · In Favor: 2 · Neutral: 0 Percent of land within 200' in opposition: 0%. *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 4 iiI ,, ~ tL_ ~ - Minimum landscape required: 1 tree per 30 linear feet along public right of way 7% of parking area to be landscaped 15% of parking area to be under tree canopy Pedestrian access linked to public sidewalks Parking grouped into 100 car blocks, divided by planting and pedestrian access · Approximately 35 additional trees along Hwy 380 frontage Additional Amenities Provided: · Approximately 35 additional trees along Hwy 380 frontage · Brick monuments and trellises at pedestrian gateways Additional Amenities Provided: · Approximately 35 additional trees along Hwy 380 frontage · Brick monuments and trellises at pedestrian gateways · Hedges to screen parking along public ROW Additional Amenities Provided: · Approximately 35 additional trees along Hwy 380 frontage · Brick monuments and trellises at pedestrian gateways · Hedges to screen parking along public ROW · Additional areas for seating Additional Amenities Provided: · Approximately 35 additional trees along Hwy 380 frontage · Brick monuments and trellises at pedestrian gateways · Hedges to screen parking along public ROW · Additional areas for seating · Pedestrian scaled lighting Additional Amenities Provided: · Approximately 35 additional trees along Hwy 380 frontage · Brick monuments and trellises at pedestrian gateways · Hedges to screen parking along public ROW · Additional areas for seating · Pedestrian scaled lighting · Monument and seasonal color at main public campus ATTACHMENT 7 City of Denton Planning and Zoning Minutes January 28, 2004 4. PUBLIC HEARINGS: Hold public hearings and consider making recommendations to the City Council of the following items: Alternative Development Plan for approximately 32 acres located in a Neighborhood Residential Mixed Use (NRMU) zoning district. The property was generally located approximately 350 feet east of Nottingham Drive, between University Drive and Mingo Road. (ADP03-0009, Demon Bible Church, Chris Fuller). The public hearing was opened. Larry Reichhart, stated the code requires that there be no parking between the street and the building but staff had a concern that due to the size and mass of the building that it would be too overpowering next to the street. Ray McFarlane, Demon Bible Church, stated moving the parking between the building and the street had the following advamages: distance of walking would be less (especially for the elderly) and the noise from the street would be less inside the church. Charles Reagan and Stephen Pickard, the architects, presented for the applicant and answered any questions commission members had (presemation included in these minutes). No one spoke for or against this item. The public hearing was closed. Commissioner Holt questioned how many brick walls there were. Commissioner Powell asked where staff was on this issue. Larry Reichhart stated the applicants provided all the amenities that were discussed and the plan met the intent of the code and staff recommended approval. Commissioner Holt stated she was very excited about something this nice being built in that part of town but would still like to see more brick walls across the front. Commissioner Powell moved, Watkins seconded to approve the alternative development plan based on staff approval and it met the intent of the code. Motion carried 6-0. Commissioner Roy absent. S:\Our Document~\Ordinances\04~ADP03-0009,doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING FOR AN ALTERNATIVE DEVELOPMENT PLAN ON APROXlMATELY 32 ACRES OF LAND GENERALLY LOCATED APPROXIMATELY 350 FEET EAST OF NOTTINGHAM DRIVE, BETWEEN UNIVERSITY DRIVE AND MINGO ROAD, WiTHIN A NEIGHBORHOOD RESIDENTIAL MIXED USE (N1LMU) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR THE PURPOSE OF ALLOWING PARKING BETWEEN THE STREET AND THE BUILDING; PROVIDING FOR A PENALTY IN THE MAXIMLrM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVII)ING FOR AN EFFECTIVE DATE. (ADP03-O009) WHEREAS, Denton Bible Church has applied for an alternative development plan which is on file in the City's Planning Department, a copy of which is attached hereto and made apart hereof as Exhibit "A" (the Alternative Development Plan), on approximately 32 acres of land located in a Neighborhood Residential Mixed Use (NRMU) zoning district, as more particularly described in Exhibit "B' attached hereto and made a part hereof by reference (the "Property"); and WHEREAS, on January 28, 2004, the Planning and Zoning Commission recommended approval of a Alternative Development Plan for parking between the street and the building; and WHEREAS, the City Council finds that the Altemative Development Plan is consistent with The Denton Plan; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein. SECTION 2. The Altemafive Development Plan is hereby approved. SECTION 3. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or apphcations, and to this end the provisions of this ordinance are servable. SECTION 4. Anyperson violating any provision of this ordinance shall, upon conviction, be fmed a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 5.. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (i 0) days of the date of its passage. PASSED AND APPROVED this the __ day of ~2004. EULINE BROCK, MAYOR 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/DCM/ACM: March 2, 2004 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT -Z03-0038 (Ocean to Ocean) Hold a public hearing and consider making a recommendation to City Council regarding the rezoning of approximately 2.99 acres from Neighborhood Residential 3 (NR-3) zoning district to Neighborhood Residential Mixed Use (NRMU) zoning district. The property is located approximately 250 feet south of Bent Oaks Drive, approximately 85 feet west of Teasley Lane. The Planning and Zoning Commission recommends approval (5-1; Commissioner Roy absent; Commissioner Holt opposed). BACKGROUND Applicant: Isbell Engineering Group Sanger, TX The applicant is requesting to rezone the property for professional services and office uses. Based on the current NR-3 zoning designation, office buildings are not allowed. If the request to rezone to NRMU is approved, the owner could develop the lot for professional office uses. Neighborhood Residential Mixed Use (NRMU) and Neighborhood Residential 4 (NR-4) zoning districts border the property to the north. The adjacent northeastern property is developed for professional office uses and the adjacent northwestern property is developed for single-family use (Bent Oaks Addition). The properties to the south and west are zoned Neighborhood Residential 3 (NR-3) and are primarily undeveloped. The property to the east is zoned Neighborhood Residential 3 (NR-3), and is not platted and is primarily undeveloped. Civic and institutional uses, such as an elementary school, a library, a fire station, and a church, are located to the north of the subject property. Staff held a predesign meeting with the applicant on October 15, 2003. During the meeting, staff informed the applicant that a zoning change would be required in order for the owner to develop a professional office on the site. Public notification and property owner responses are provided in Attachment 3. As of this writing, staff has received no written responses from property owners within 200 feet of the subject site. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval (5-1; Commissioner Roy absent; Commissioner Holt opposed). ESTIMATED PROJECT SCHEDULE The subject property is not platted. Preliminary and final plats are required prior to issuance of building permits. PRIOR ACTION/REVIEW The following is a chronology ofZ03-0038: Ordinance 2002-040, adopted February 2002, placed the subject property in the Neighborhood Residential 3 (NR-3) zoning district and land use classification. Prior to the adoption of the Development Code (Ordinance 2002-040), the property was zoned Agricultural. A Predesign meeting was held October 15, 2003. The property has not been platted. ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification (Property Owner Notification Map) 4. Letter Submitted by Applicant 5. Zoning Exhibit 6. Proposed Site Plan 7. Site Photos 8. Planning and Zoning Commission Meeting Minutes from January 28, 2004 9. Ordinance Prepared by: Chris Fuller Planner I Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary_ of Zoning Request The applicant is requesting to rezone approximately 2.99 acres from Neighborhood Residential 3 (NR-3) zoning district to Neighborhood Residemial Mixed Use (NRMU) zoning district. The requested zoning change would allow the applicam to develop the lot for professional service and office uses. The proposed zoning change would provide 300 feet of NRMU zoning designation fromage along Helm Lane. The NRMU district will serve as a continuation of the existing neighborhood center node located to the north. The property is within walking distance to existing neighborhood cemer services, which include an elememary school, a library, a fire station, a church and existing office buildings. The proposed zoning change is in compliance with the Denton Plan regarding the typical land area for a neighborhood center. Existing Condition of Property The subject property is primarily vacam, and is not in a flood plain. Adjacem Zoning North: Neighborhood Residemial 4 (NR-4) and Neighborhood Residemial Mixed Use (NRMU) zoning district South: Neighborhood Residemial 3 (NR-3) zoning district East: Neighborhood Residemial 3 (NR-3) zoning district West: Neighborhood Residemial 3 (NR-3) zoning district There are single-family residemial uses adjacem to the northern boundary of the subject property (Bent Oaks Addition). The properties to the east, west and south are not platted and are primarily undeveloped. A few single-family residential structures are located on the properties to the east and south of the subject property. Comprehensive Plan Analysis The site is located in an "Existing Neighborhoods/Infill Compatibility" future land use area. New development in this district should respond to existing development with compatible land uses, patterns and design standards. The plan recommends that existing neighborhoods within the city be vigorously protected and preserved. The DeNon Plan defines compatibility as: "The characteristics of differem uses or activities or design which allow them to be located near or adjacem to each other in harmony ... Compatibility does not mean "the same as." Rather, compatibility refers to the sensitivity of developmem proposals in maimaining the character of existing developmem" (p. 188). The request to rezone the subject property is compatible with the Future Land Use Plan (Existing Land Use) and with the surrounding zoning designations. The proposed zoning change is in compliance with the Denton Plan. Development Review Analysis Transportation As proposed, a TIA is not required (less than 1000 ADT generated trips or 100 peak hour generated trips). However, if any future submittal includes more property and/or more intense development and/or greater building size so as to generate more than 1000 ADT generated trips, a TIA will be required. Access and Connectivity The site will be accessed by Helm Lane. Connectivity adjacent undeveloped property is required with platting. Public Infrastructure The city tile maps show an 8" water main along the west side of Teasley Lane extending to the northeast comer of the property. The city tile maps show an 8" sewer main along the west side of Teasley Lane extending to the northeast comer of the property. Development Code / Zoning Analysis In the Neighborhood Residential 3 zoning district few commercial uses are permitted. The Neighborhood Residential Mixed Use zoning district allows a variety of commercial land uses, most with some type of limitation. The chart below illustrates the difference between the two zoning districts. Limitations for each use are explained below the chart. Single Family Dwellings P N Accessory Dwelling Units SUP (L1) N Attached Single Family Dwellings SUP L(40) Dwellings Above Businesses N P Live/Work Units N P Duplexes N N Group Homes N SUP Multi-Family Dwellings N SUP (L4) Manufactured Housing Developments N N Semi-public, Halls, Clubs, and Lodges SUP P Adult or Child Day Care SUP P Kindergarten, Elementary School SUP P Middle School N P High School N SUP Medical Centers N P Hotels Professional Services and Offices Retail Sales and Services Theaters Less that 1,000 Seats Laundry Facilities Outdoor Recreation N N N N N L(17) L(17) L(14) SUP Broadcasting or Production Studio N L(14) Restaurant or Private Club N L(11 ) Drive-through Facility N SUP Quick Vehicle Servicing N SUP Bed and Breakfast N P Administrative or Research Facilities N L(14) L(1) - Accessory dwelling units are permitted, subject to the following additional criteria: (1) The proposal must conform with the overall maximum lot coverage and setback requirements of the underlying zone, (2) The maximum number of accessory dwelling units shall not exceed 1 per lot, (3) The maximum gross habitable floor area (GHFA) of the accessory residential structure shall not exceed 50% of the GHFA of the primary residence on the lot, and shall not exceed 1000 sq. ft. GHFA, (4) On additional parking space shall be provided that conforms to the off-street parking ~rovisions of this Chapter. L(4) - Permitted as part of a mixed-use development of ten acres or more and only in conjunction with office, retail or other permitted uses. L(11) - Limited to sit down only no take out service and no drive up service permitted. Limited to no more than 100 seats and no more than 4,000 square feet of restaurant area. L(17) - Uses are limited to no more than 25,000 square feet of gross floor area per use, except grocery stores may be larger with approval of an SUP. L(40) - Limited to a maximum 12 units per acre. The limitations listed above regulate the specifics of each use allowed within the zoning district. Any proposed development on this site is required to be in compliance with the site design standards of the Development Code. An approved site plan for the proposed development will be required prior to the issuance of any building permits. Staff Findings The proposed zoning change is compatible with neighboring zoning designations, extends the existing neighborhood center node and is in compliance with the intent of the Denton Plan. Staff Recommendation Based on the above findings, staff recommends approval of the requested zoning change. ATTACHMENT 2 Location/Zoning Map Ranch . ~-~ ~ ~ea;ts /hR3~--~ 5~ ~ I N R-3 ~ NORTH Land Use Map Bent Oaks Existing Land Use Designation Note: Shaded parcels currently zoned NRMU. ATTACHMENT 3 Notification Map NORTH Notification~ Limits of Notification Scale: None Public Notification Date: January 18, 2004 200' Legal Notices* sent via Certified Mail: 16 Number of responses to 200' Legal Notice: · In Opposition: 0 · In Favor: 0 · Neutral: 0 *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 Integrity In Engtneetnng ISBELL ENGINEERING GROUP, INC. CONSULTANTS IN ENGINEERING & PLANNING December 10, 2003 Members of the Planning & Zoning Commission City of Denton City Hall West Planning and Development Department 221 N. Elm Denton, TX 76201 Dear Planning and Zoning Commission: Isbell Engineering Group, Inc. (IEG) respectfully submits the following Zoning Change Justification letter to accompany the Zoning Amendment application for the Ocean-to-Ocean Office Development. We request public hearings before the City of Denton Planning and Zoning Commission and the City Council to consider the approval of our request. We request the rezoning of 2.99 acres on Teasley Lane from NR-3 to NRMU. A two-story, 15,000 square foot office building is proposed that will serve as the corporate headquarters and private product showroom for Ocean-to-Ocean, a product development and sourcing company for home furnishings. IEG believes the request is contextual with the neighborhood because of adjacent offices zoned NRMU to the north and across Teasley Lane. Existing Conditions The' subject property is currently vacant, agricultural land that fronts Teasley Lane and Helm. The property is immediately south of a Century 21 realty office, zoned NRMU, and single family residences on Bent Oaks, zoned NR-4. NR-3 zoned property with a single-family residence is to the west and north. The NR-3 zoned property is to the south, with mobile homes further south along Helm and Teasley Lane. Several NRMU zoned office buildings are across Teasley Lane to the east. - 1 - Figure 1: Vicinity Map There is an existing pond to the far west that is part of the floodplain, and serves as a natural buffer to the rear of the property. Helm is a private drive that is an unimproved road leading to several mobile homes, and serves as a buffer to the south frontage of the property. The property is immediately bordered by a concrete-lined drainage channel to the north. The driveway offTeasley Lane that provides access to the subject property is bordered by the NR- 3 property to the south that eventually serves the mobile homes. A small portion of the southern property boundary contains an Upland Habitat Environmentally Sensitive Area. This portion is insignificant in developing the property and can be left as part of the landscaped area. A floodplain ESA is to the west of the property. 1405W. Chapman ~r200- Sanger, Texas 76266 Phone: 940-458-7503 · Fax: 940-458-7417 e-mail: iebelll~isbellengineefing.com Site ESA Figure 2: 0 348 Fee~ City of Denton ESA Map from the City of Denton Website, the Upland Habitat Borders the Southern Boundary Proposed Use and Zoning Justification The proposed Ocean-to-Ocean facility will serve as the corporate headquarters with the following elements: A 15,000 square foot office building and private use product showroom for home furnishings, for clients such as Dillard's, Foley's, Stein Mart, Mikasa, Velleroy and Both, and The Pfaltsgraff Company. A building that is contextual in architectural style with the surrounding residential and commercial neighborhood. The Office will house a full-time staff of 15 to 25 people and will not be open to the public. The outside traffic is limited to deliveries and occasional client visits. The company anticipates incorporating up to one acre of landscaping and green space on the site. -3- The request for NRMU complies with the Denton Plan since the area is designated as a Neighborhood Center. This use is compatible with the surrounding commercial uses on Teasley Lane, such as the Century 21 realty office next door and the professional offices across Teasley Lane. The zoning, request complements the existing pattern of development on Teasley Lane, with predominantly residential-style buildings on the street frontage, and single- family homes to the rear. Potential Impacts Figure 3: Utilities and Zoning Utilities Barring any contradictory analyses from the City, the calculatiOns for water and sewer needs indicated that the current system should be able to handle the additional flow generated by the -4- proposed development. There is a six-inch water line and eight-inch sewer line along Teasley Lane to the west and Bent Oaks to the north Traffic The property will generate a minimum of 430 trips per day and a maximum of 1390 trips per day. Currently the property would generate 86 trips per day (9.57 per unit) with 9 single- family residences. Schools There is no anticipated impact upon the schools since there will be no residences on the property. Drainage The drainage of the site is from south to north. There is an existing, concrete-lined drainage channel immediately to the north of the property. The channel serves the office and single-family residences. There are also concrete culverts along Teasley Lane. There is an existing pond and floodplain to the rear of the property. Requests Favorable Consideration After reviewing the above letter content and accompanying documentation, we anticipate that you will agree with our presentation. We request the City of Denton's favorable consideration of our zoning change request. We believe the proposed Ocean-to-Ocean Office Development will be a benefit to the surrounding neighborhood and the City of Denton as a whole. We look forward to working with Ocean-to-Ocean and the City of Denton to bring this project to a successful completion. We appreciate your time and consideration with this matter. Respectfully submitted, Isbell Engineering Group, Inc Lee Allison, P.E. Civil Division Manager Vicki Oppenheim, AICP Senior Planner -5- Figure 4: The Property Looking onto Teasley Figure 5: The Drainage Channel and Homes -6- Pigure 6: Offices along Teasley -7- Figure 7: House to south and west Figure 8: The ESA to the west Figure 9: Helm Lane -9- Attachment 6 Attac.,nent 6 ATTACHMENT 7 Zoning Notifcation Sign ATTACHMENT 8 City of Denton Planning and Zoning Minutes January 28, 2004 4. PUBLIC HEARINGS: Hold public hearings and consider making recommendations to the City Council of the following items: A. Rezoning of approximately 2.99 acres from a Neighborhood Residemial 3 (NR-3) zoning district to a Neighborhood Residemial Mixed Use (NRMU) zoning district. The property was located approximately 250 feet south of Bent Oaks Drive, approximately 85 feet west of Teasley Lane. (Z03-0038, Ocean to Ocean, Chris Fuller). The public hearing was opened. Chris Fuller, Planner i, presented. Fuller stated that 16 notices were sent out and no responses were returned. The rezoning is in compliance with the code and staff recommended approval. Lee Allison, isbell Engineering, presemed for the applicam (presemation included in the minutes). Commissioner Johnson asked if Helm St. would be receiving any improvemems. Tracy Mohan, 3880 Helm, DeNon, Tx., 76210 - expressed concerns of drainage. Larry Reichhart, stated the intersection of Helm and Teasley would be dealt with at the platting stage. John Kozura, 777 E1 Cielito, DeNon, Tx., 76205 - also expressed concerns regarding drainage. Bob Huffaker, 3332 Helm Lane, Denton, Tx. - stated he was in support of the rezoning but expressed his concerns about getting a dedicated right-of-way. Commissioner Mulroy briefed the audience that this is a rezoning case, the concerns about drainage and rights-of-way would be addressed at the platting stage. Willie Sellers, 3009 Oakhurst, DeNon, Tx., 76210 - spoke in opposition because he felt that area would be saturated with commercial businesses. Nancy Hough, 3022 Manor Ct. S., Denton, Tx., 76210 - stated she was not opposed to the rezoning but her kitchen window would be facing the parking lot of this building. Lee Allison, isbell Engineering, stated his firm was aware of all these concerns and they are being addressed. The public hearing was closed. Commissioner Johnson moved, Strange seconded to approve the rezoning to NYMU. The roll vote was as follows: Commissioner Johnson - aye; Commissioner Watkins - aye; Commissioner Strange - Commissioner Mulroy - aye; Commissioner Powell - aye; Commissioner Holt - nay. Motion carried 5-1. Commissioner Roy absent. aye; ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FROM NEIGHBORHOOD RESIDENTIAL - 3 (NR-3) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION TO NEIGHBORHOOD RESIDENTIAL MIXED USE (NRMU) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR APPROXIMATELY 2.99 ACRES OF LAND LOCATED APPROXIMATELY 250 FEET SOUTH OF BENT OAKS DRIVE, APPROXIMATELY 85 FEET WEST OF TEASLEY LANE IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; PROVIDING FOR A PENALTY IN THE ~ AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z03-0038) WHEREAS, Isbell Engineering Group, Inc. has applied for a change in zoning for approximately 2.99 acres of land located approximately 250 feet south of Bent Oaks Drive, approximately 85 feet west of Teasley Lane and more particularly described in Exhibit "A" attached hereto and made a part hereof as Exhibit "A" (the "Property") from Neighborhood Residential 3 (NR-3) zoning district classification and use designation to Neighborhood Residential Mixed Use (NRMU) zoning district classification and use designation; and WHEREAS, on January 28, 2004, the Planning and Zoning Commission recommended approval of the requested change in zoning; and WHEREAS, the City Council finds that the change is consistent with the Comprehensive Plan; NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The zoning district classification and use designation of the Property is hereby changed from Neighborhood Residential 3 (NR-3) zoning district classification and use designation to Neighborhood Residential Mixed Use (NRMU) zoning district classification and use. SECTION 2. The City's official zoning map is amended to show the change in zoning district classification. SECTION 3. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 4. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 5. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the __ day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY PAGE 2 02/17/2~04 14:4G 9404587417 ISB, ELL EI~K~I~!NG PAC_~E 02 Exhibit A 0.2~924 Acres AJI that certain tract or parcel of land that is situated in the C. Poullalier Survey, Absfact No. 100G, Denton County, Texas, be~3g ~ part of a tract deeded by .John M. Avinger, et ai to Henry S. Miller Company on the 11f~ day of November, 1976, and recorded in Volume 8'i2, Page 235, Deed Records of Denton County, Texas, and being more fully aescdDecl as follows: Commencing at the southeast corner of said Henry S. Miller Tract on the east boundary line of the C. Pouiiatier Survey in the middle of a north-south road; Thence North 00 degrees 35 minutes and 21 seconds east with the east boundary line of said tract and of said survey in the public road a distance of 777.00 feet to an iron pin at the point of beginning; Thence North 89 degrees 08 minutes and 40 seconds west pass at 184.51 feet the northeast comer of a 1.492 acre. Iract from Arden E. Wagner, et al. to Kyle O. Thompson, et al, recorded in Volume 742, Page 334, Deed Records of Denton County, and continuing a total distance of 444.51 feet to an iron pin at the northv~st comer of said t .492 acre tract: Thence North 00 degrees 51 minutes and 50 seconds east a distance of 243.19 feet to an iron pin; Thence South 89 degrees 16 minutes and 45 seconds east a distance of 443.10 feet to an iron pin on the east boundary fine of the C. Poullalier Survey in the north-south public road; Thence South 00 degrees 35 minutes and 21 seconds west with said survey line in said road a distance of 294.25 feet to the point-of-beginning and containing 2.9924 acres of land, tl~ere being a 30 foo{ ingress and egress easement along the entire south boundary fine of this tract. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 2, 2004 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT - Z03-0039 (Jim McNatt Honda) Hold a public hearing and consider adoption of an ordinance regarding the amendment of the Detailed Plan for Planned Development 12 (PD-12). The approximately 15 acres of land is located approximately 1,500 feet east of State School Road, on the south side of Interstate 35. An automobile dealership is proposed. The Planning and Zoning Commission recommends approval (5-0; Commissioner Roy absent, Commissioner Powell absent from the vote). BACKGROUND Applicant: Stephenson Architects Forth Worth, Texas The applicant is requesting approval of a Detailed Plan Amendment for Planned Development 12 (PD-12). The applicant is proposing an automobile dealership for auto sales and service. The proposed development will include a display area with canopy style weather protection covers and a sales building. This site is currently undeveloped and adjacent to the existing automobile dealership to the southeast. The proposed dealership is an addition to the existing auto dealership, with connectivity provided between the developments. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval (5-0; Commissioner Roy absent, Commissioner Powell absent from the vote). ESTIMATED PROJECT SCHEDULE This property has been platted and is subject to building permits. PRIOR ACTION/REVIEW The following is a chronology of Z03-0039, commonly known as Jim McNatt Honda: The subject property was designated as Planned Development 12 (PD-12) zoning district by Ordinance 78-78. An Amended Concept Plan for this portion of PD-12 was approved by Ordinance 87-084. An Amended Detailed Plan / Project Plan was approved for the existing automobile dealership and service facility by Ordinance 2001-149. ATTACHMENTS 1. Staff Analysis 2. Location/Zoning & Land Use Maps 3. Notification Map & Information 4. Site Photos 5. Proposed Detailed Plan 6. Approved Concept Plan for PD-12 (Ordinance 87-084) 7. Approved Amended Detailed Plan / Project Plan for adjacent auto dealership (Ordinance 2001-149) 8. Planning and Zoning Commission Meeting Minutes from January 28, 2004 9. Ordinance Prepared by: Chris Fuller Planner I Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary of Zoning Request The applicant is requesting approval of a Detailed Plan Amendment for Planned Development 12 (PD-12) for an automobile dealership. The proposed dealership is adjacent to the existing auto dealership, with connectivity provided between the developments. Existing Condition of Property Adjacent zoning: North: Regional Center Commercial Neighborhood (RCC-N) South: Planned Development 12 (PD-12) West: Planned Development 12 (PD-12) East: Planned Development 12 (PD-12) and Regional Center Commercial Downtown (RCC-D) Comprehensive Plan Analysis The subject site is located within a "Regional Mixed Use Center" future land use area. Regional Mixed Use Centers are intended to contain the shopping, services, recreation, employment and institutional facilities supported by and serving an entire region. A regional activity center could contain developments such as a regional shopping mall, big box retail, superstores, restaurant and entertainment facilities, a high school or community college, and high-density housing. The proposed development is in compliance with the Denton Plan. Development Code/Zoning Analysis The Concept Plan for the Planned Development 12 (PD-12) zoning district allows for the development of an automobile dealership. Development within PD-12 is subject to the Development Code standards in place prior to Ordinance 2002-040. Staff Findings The proposed amended Detailed Plan is consistent with the Concept Plan for Planned Development 12. The development is also consistent with the approved Amended Detailed Plan / Project Plan for the adjacent existing automobile dealership. Staff Recommendation Based on above findings staff recommends approval of the requested Detailed Plan Amendment for Planned Development 12 with the following conditions: 1. Lighting on the property shall be designed and maintained so as not to shine or otherwise disturb adjoining property or to shine and project upward to prevent the diffusion into the night sky. 2. Public address speakers shall be oriented so as not to face towards the south, southwest, or west. 3. Future development in the detention pond area will require Detail Plan approval. ATTACHMENT 2 Location/Zoning Map NORTH Land Use Map Scale: None A I I A(,.;I-IMI-N I :5 Notification Map NOI T t Scale: None Public Notification Date January 15, 2004 200' Legal Notices* sent via Certified Mail: 5 Number of responses to 200' Legal Notice · In Opposition: 0 · In Favor: 0 · Neutral: 0 Percent of land within 200' in opposition: 0% *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 4 ATTACHMENT 5 L ~'~ATTACHMENT 5 ~ · / ATTACHMENT 5 ~ ATTACHMENT 5 Attachment 6 ~ , / / / / / / / / / / ,. / 7_ Attachment Development Standards~ of 4) STATEMENT OF INTENT To ensure a development that provides a variety of goods and servic'es intended to be compatible with existing and proposed land uses in the vicinity~ RELATIONSHIP TO DENTON DEVELOPMENT GUIDE This development is located in a moderate intensity area and provides diversity through a community unit concept with jobs close to housing and a transportation balance eliminating frips across town for day-to-day needs. DEVELOPMENT SUMMARY Commercial and/or ·Office Uses Maximum 1:1 F.A.R. 43.4 Gross Acres Total Maximum floor area 1,890,504 square feet TRAFFIC AND TRANSPORTATION There shall be a minimum separation of two hundred (200) feet between .points of access off of the' Interstate 35E frontage road. All streets, paving and parking lots shall conform to standards employed by the City of Denton. PROJECTED TPJtFFIC GENERATION Traffic projections outlined in the Site Traffic Analysis for Oakmon= Estates prepared by Barton-Aschman Associates, Inc. BUILDINGS 'Building locations Concept Plan. and minimum setbacks as shown on the A building envelope is defined as that area within which buildings are anticipated to be located. Building envelopes, as indicated on the Concept Plan, are subject to change. Maximum building height, eight (8) stories. TREES Tree masses are shown on the Concept Plan. Every effort will be taken %o ensure the Survival of significant trees on site. Attachment 6 L /?10pment Standards (2 of Screening elements shall be addressed on the Detail Plan. As shown on the Concept Plan, Existing utilities as shown on the Concept Plan. The 'proposed sanitary sewer location -is subjec~ to change. Precise locations of utility lines shall be' addressed on the Detail Plan for this area. DEVELOP~ S CItEDULE Detail Development Plans .for initial phasing .Will be submitted no later than November, 1994. At that time, specific scheduling of Detail Plan submittals for the remaining phases of this area will be outlined. It is anticipated that buildout, of the development should occur within a 25 year period or by the year 2011. Attachment 6 3. DeveloPment ${andards (3 of 4) COMMERCIAL SHOPPING PERMITTED USES': All uses as permitted in the-commercial and office zoning districts, except that the following uses shall not be perm ~ted: Amuse en , Commercial (outdoor), Drag Strip or .om ercial Racing Asphalt or Concrete Batching Plant (permanent) Brick Kiln .or Tile Plant Cemetery or Mausoleum Dormitory, Boarding or Rooming House Dump or Sanitary Fill Area Extraction and Sale of Sand, Calich'e, Stone, Clay or Gravel Fairgrounds.or Exhibit Area Go-Cart Track Halfway House Hatchery, Poultry Hauling or Storage .Company Heavy Machinery Sales and Storage Home for 'Care of Alcoholic, Narcotic or Psychiatric Patients Livestock Auction Livestock Feeding Plant, Pens or Yards Mining or Storage of Mining Wastes Open Salvage Yard for Rags or Machinery, etc Petroleum Collecting or Storage Facilities. Private Utility Shop or Storage Yard Rodeo Grounds Sand, Gravel or Earth Sales or Storage Stable, Commercial Rental Stable, Boarding Stable, Private Club .Storage'and Sales of. Furniture-or Appliances Outside a Building Theater, Drive-In Tire Re-Treading or Capping Tool Rental Trailer Camp or Mobile Home Park Trailer Rent 1 r.r Sales Used Auto Pa:rs Sales Attachment 6 Development Standards (4 of 4) REQUIREMENTS: Height R~quirements: Maximum of eight (8)'stories. Area Requirements: Front Yard - Minimum twenty-five (25) feet. S~de Yard - Minimum fifteen (15) feet. Rear Yard - No rear yard is required. Five percent (5%) of the total lot Landscaped Open Space - area shall be maintaified as landscaped open space. Lot Coverage - Maximum fifty percent (50%) by buildings. Floor Area Ratio: Maximum 1:1 Building Materials: The main building exteriors shall b'e' constructe:d of glass, stone, brick, tiles, cement, concrete,.or .similar materials, or any combination thereof. ' .. Parking Requirements: One (1) off-street parking space shall be provided for each three hundred square feet (500') of floor space. Traffic Requirements: 1. }~hen the level of service changes from C to D at the unsignalized intersection of State School Road and the service roads of Interstate Highway 35-E, or accidents at the above' mentioned intersection exceed the guidelines of the State Highway Department as determined by the City Engineer, then, as a condition of receiving building permits thereafter, 15.3% of the cost of the signalization equipment needed at that intersection .or $5,200.00, whichever is less,· shall be paid to the City of Denton, if the City of Denton would be responsible for the necessary signalization equipment. 2. By the date of any' one or more land use shown in the attached list of "Phase III Land Uses" is projected to generate vehicular traffic in excess of 5,000 trips per day, as. determined by the city Engineer,-but in no case later than January 1, 1992, a revised traffic study for the entire 725 acre development, specifically addressing all traff'ic needs for that part of the development located within the City of Denton, must be submitted to the City Engineer. Attachment 7 AN 'ORDINANCE' OF THE CITY OF DENTON, TEXAS AMENDING ORDINANCE NO. 87- 084 TO PROVIDE FOR A DETAILED PLAN / PROJECT PLAN FOR 15.02 'ACRES LOCATED WITHIN PLANNED DEVELOPMENT 12 (PD-12) zONING DISTRICT; THE SUBJ'ECT PROPERTY BEING LOCATED ON THE SOUTHEAST SIDE OF INTERSTATE 35E APPROXIMATELY 3000 FEET NORTHWEST OF ITS INTERSECTION WITH POST OAK ROAD; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR A PENALTY IN THE MgD(ffMUM AMOUNT OF 5;2,000.00 FOR VIOLATIONS THEREOF; AND PROVDING FOR AN EFFECTIVE DATE (SP-01-0001). ' WHEREAS, on May 5, 1987, by Ordinance 87-084, the City Council approved an amended Concept Plan for 43.4 acres of land located within the Planned Development 12 (PD- 12) zoning district; and WHEREAS, on March 2, 2000, the City Council adopted Ordinance No. 2000-069 which established certain nonresidential interim regulations (the "Nonresidential Interim Kegmauo and WHEREAS, the Nonresidential Interim Regulations established,' among other things, a proj eot plan requirement; and WHEREAS, on January 16, 2001, The A1 McNatt Family Partnership, Ltd, submitted a Detailed Plan / Project Plan for t5.02 acres of land located within PD-12 with the intent to develop an automobile dealership; and WHEREAS, on March 14, 2001, the Planning and Zoning Commission recommended approval ora Detailed Plan / Project Plan for such 15.02 acres; and wHEREAs, the City Council finds that the Detailed Plan / Project Plan is consistent with the approved amended Concept Plan for PD-12 and meets the requirements of the Nonresidential Interim Regulations; NOW, THEREFORE, THE coUNCIL OF THE CiTY OF 'DENTON HEREBY ORDAINS: SECTION 1. That Ordinance No. 87-084' providing for the approval of an amended Concept Plan for the Planned Development Zoning District Classification and Use Designation for the property described as PD-12 is amended by approving the Detailed Plan / Project Plan attached hereto and incorporated herein by reference as Exhibit B for acres located within PD- 12, more particularly described by the legal description attached hereto and incorporated herein by reference as Exhibit A, subject to the following conditions: 1. Lighting on the property shall be designed and maintained so as not to shine on or otherwise disturb adjoining property or to shine and project upward to prevent diffusion into the night sky. A lighting plan shall be submitted by the applicant for review by City staff to ensure compliance with this condition. 2. An irrigated 'landscaping strip at least three (3) feet in width shall be provided along . the top of the retaining wall along the southwestern boundary of the property. This strip shall be planted with vines capable of growing up along the rear fence. 3. Public address speakers shall be oriented so as not to face towards the south, southwest or west. 4. The temporary sales building will be removed from the site within 90 days of a Certificate of Occupancy being issued for the main sales and service building. 5. The existing Oak trees intended to be preserved by the applicant shall be monitored during construction activity and during a five-year recovery period. 6. If the health of any of the existing Oak trees should decline during construction or the recovery' period, the applicant shall plant replacement trees in the islands where the Oak trees are removed in accordance with the Landscape Ordinance. SECTION 2.' That the proviSions of this ordinance as they apply to the 15.02 acres shown in the Detailed Plan/Project Plan herein approved, shall govern and control over any conflicting provisions of Ordinance No. 87-084, but all the provisions of Ordinance No. 87-084, as they apply to that remaining portion of the district not herein amended, shall continue in force and effect and shall apply to the remainder of said district. SECTION_____}3. That a copy of this ordinance shall be attached to Ordinance No. 87-084 showing the amendment herein appro'~ed. SECTION_.. 4. That any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this Ordinance is violated shall constitute a separate and distinct offense. SECTI__ON 5. Tha,~this ordinance shall becom® effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to 'be published twice in the Denton Record Chronicle, official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the ~_~/~ day of &/~'~_/ ,2001. EULINE BROCK, MAYOR PAGE 2 ATTEST: JENNIFER wALTERS, CITY SECRETARY HERBERT L. PROUTY, CITY ATTORNEY BY: ~ PAGE 3 ~x,. EXHIBIT A Attachmen~'~. ALL that certain lot, tragt, or parcel .~ Iond sitoOt.ed in tho GIDEON WA. LK~R SURVb--Y, AB _ST.RA _b~ NUMBER !330, Denton County, Texas, and being 15.0037 acre tract described in Deed from Alan L. IVlcnatt to The Al McNatt Family partnership, Ltd. as recorded in Coun~ Clerk's FiJe Number 96-R0004554 of th~ P. eai Properly. P, ecorcis of W~se County.. "'~.xas, and being more particubrly descrlbed as follows: E~EGINNING at a capped Iron rod found In the South line of Interst,3te Highway 35 Access Road for the most NortheasterJy comer of the tract being described herein and the most Soutneaster[¥ comer ef Lot 4R, Block A, of MCNATT ADDITION, an addition to the City of Denton. Denton County, Texas, according to the Plat therec~ recorded in Cebtnet 0, Page ;267, Piat Records of Denton Coun'.ty, Texas; ,-rH, E,~,~CE Sou',~h 47 dsgrss~ 07 mln["tss 0,O _~sconds Er. st wi~h the South rioht..of-wa¥ of s~,~d AccS~ Ro~,d ~ dlrJ=ncs .~36.28 feet to a I~" Iron rod found {-~- b~e mo.st goui,heasterly corner et tJhe tract beln9 described hsre~n; THENCE Sou~_h 42 d_,~,rees ~ mim~es 00 s~.onds West a dl~mnce of 698.42 fee[ to a 1/2" capped Iron rod set for most $outhv~sterty comer of the tract bein.q described herein; THENCE North'47 degrees 09 minutes 54 second~ W~.~t a distance of'935.68 feet to a 1/2' c.~p,cmd iron rod set for the most No.rthweo. tert¥ comer of the tm~. beln~ d_~,crib.~l_ herein end the most $outhweste~'ly ¢a3_ Prier of ~td MeNntf Addition; THENCE North 42 degrees 51 minutes 0:2 seconds East wfth t~e most Southerly line of said McNa~t Addition a distance of 699.2i fee~ io the POINT OF ~EG[NNiNG end enciosing i 5.02 acres of iand more or Attachment 7 Attachment 7 Attachment 7 : i ATTACHMENT 8 City of Denton Planning and Zoning Minutes January 28, 2004 4. PUBLIC HEARINGS: Hold public hearings and consider making recommendations to the City Council of the following items: A. Amendment to the Detailed Plan for Planned Development 122 (PD-12). The approximately 15 acres of land was located approximately 1,500 feet east of State School Road, on the south side of Interstate 35. An automobile dealership is proposed (Z03-0039, Jim McNatt, Chris Fuller). The public hearing was opened. Chris Fuller, Planner I, presented. Fuller stated the application was in compliance with the code and staff recommended approval. Jim Stephens, presented for the applicant (a presentation was not submitted). No one spoke for or against this item. The public hearing was closed. Commissioner Johnson moved, Holt seconded to approve the detailed plan. Motion carried 5-0. Commissioner Roy absent and Commissioner Powell was absent from the vote. S:\Our Documents\Ordinances\04kZ03-0039.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING ORDINANCE NOS. 87- 084 AND 2001-149 TO PROVIDE FOR AN AM~MENT OF THE DETAILED PLAN / PROJECT PLAN FOR 15.02 ACRES LOCATED ~PROXmATELY 1,500 FEET EAST OF STATE SCHOOL ROAD, ON THE SOUTH SIDE OF INTERSTATE 35 IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, A SEVERABmITY CLAUSE AND AN EFFECTIVE DATE. (Z03-0039) WHEREAS, on May 5, 1987, by Ordinance 87-084, the City Council approved an amended Concept Plan for 43.4 acres of land located within the Planned Development 12 (PD-12) zoning district; and WHEREAS, on April 3,2001, by Ordinance 2001-149, the City Council approved a Detailed Plan / Project Plan for 15.02 acres of land located within the Planned Development 12 (PD-12) zoning district; and WHEREAS, on December 31, 2003, Stephenson Architects, submitted an amendment of the Detailed Plan / Project Plan for 15.02 acres of land located within PD-12 and more particularly described in Exhibit "A" attached hereto and made a part hereof as Exhibit "A" (the "Property") with the intent to extend an automobile dealership, said amended Detailed Plan / Project Plan being on file in the offices of the City's Planning Department, a copy of which is attached hereto and made a part hereof as Exhibit "B" (the "Amended Detailed/Project Plan"); and WHEREAS, on January 28, 2004, the Planning and Zoning Commission recommended approval of the Amended Detailed/Project Plan; and WHEREAS, the City Council finds that the Amended Detailed/Proj ect Plan is consistent with the approved Concept Plan for PD-12; NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. Ordinance Nos. 87-084 and 2001-149 providing for the approval of an amended Concept Plan for the Planned Development Zoning District Classification and Use Designation for the property described as PD-12., and Detailed Plan, respectively, are amended by approving the Amended Detailed/Project Plan, subject to the following conditions: 1. Lighting on the Property shall be designed and maintained so as not to shine or otherwise disturb adjoining property or to shine and project upward to prevent the diffusion into the night sky. 2. Public address speakers shall be oriented so as not to face towards the south, southwest, or west. 3. Future development in the detention pond area will require an additional detailed plan approval. SECTION 3. The provisions of this ordinance as they apply to the Property, shall govern and control over any conflicting provisions of Ordinance Nos. 87-084 and 2001-149, but all the provisions of Ordinance Nos. 87-084 and 2001-149, as they apply to that remaining portion of the district not herein amended, shall continue in force and effect and shall apply to the remainder of said district. SECTION 4. A copy of this ordinance shall be attached to Ordinance 2001-149 showing the amendment herein approved. SECTION 5. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 6. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the __ day of ,2004. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. P~/UTY CITY ATTORNEY BY: PAGE 2 ........ Exhibit A AU. that ce.r~ain lot, tract, er parce~ of land situated in the G!DEON WAL - · ,- C3: NUI~I~EI~, 1330, Denton Co~, Te~s, and bei~t5.0037 acm ~ct des~ in D~ from Nan L. McnaU ~ ~e N Mc~ Fam~y Pa~emhip, Ltd. as re~ded in Coun~ Cierk's ~ie Number 96-R8~45~ of th~ Re~ Pmp~ R~s ~W~se Count. -~aa, and bain9 mote ~i~y des~b~ as fol~: BEGINNING at a ~pp~ Iron ~ f~ In the Soulh line of tnte~*~ Hig~y ~ ~ss ~d ~o~st~y ~mer of ~e ~c~ being d~d ~reln and the m~ ~utn~y ~m~ ~ Lot 4~ BI~ A, of MCNA~ ADD.ION, an addition to the C~ ~ Denton. Denton Count, T~, a~ing to Cabl~t 0, ~ge 287,.Plat R~s of Denton.~unW, T~s;. ... g~ feet to a 1~ ~on r~ found ~ b~e m~[ $ou~a~ny ~rn~r o[ ~ u~, ~,u ~CE ~ 42 d~r~ ~ min~es 00 ~n~s W~t a ~n~ of 698.42 f~t to a 1~" ~p~ Eon rod ~ for the ~t $out~te~ ~mer ~ ~e ~a~ ~inn d~ herein; TH~CE Na~h'47 d~ D9 minutes ~ s~nds W~{ s'dis~n~ ~'g35.68 f~ ~ a m~t ~hw~ter~ ~mer of the ~ ~n~ d~Hb~ herein end the m~t ~hw~t~y ~ner of ~i~ M~ ~ti~; THENCE No~ 42 d~r~s 51 min~s 02 s~s ~st ~ ~e mast S=~Y line ~ s~ M~aE~ a dl~ ~9~i fe~ to ~e PO~h~ OF BEGf~iNG and en~osing ~5.02 ~ ~f~nd mom ~ Exhibit B AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM: March 2, 2004 Economic Development Department Michael A. Conduff, City Manager ~/'~ SUBJECT HOLD A PUBLIC HEARING AND CONSIDER ADOPTION OF AN ORDINANCE OF THE CITY OF DENTON, TEXAS DESIGNATING A CERTAIN AREA WITHIN THE CITY LIMITS OF DENTON AS REINVESTMENT ZONE NO. VII FOR COMMERCIAL/INDUSTRIAL TAX ABATEMENT; ESTABLISHING THE BOUNDARIES OF SUCH ZONE; MAKING FINDINGS REQUIRED IN ACCORDANCE WITH CHAPTERS 311 AND 312 OF THE TEXAS TAX CODE; ORDAINING OTHER MATTERS RELATING THERETO; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR REPEAL; AND PROVIDING AN EFFECTIVE DATE. BACKGROUND The attached ordinance establishes Reinvestment Zone VII. The property included within the boundaries represents a 43.6 acre site on Airport Road and Corbin Road. City Council's adoption of the ordinance establishing the reinvestment zone will allow Council to consider a tax abatement agreement with Fastenal Company, a Minnesota corporation. The company plans to construct a distribution center of approximately 250,000 square feet at the site. ESTIMATED SCHEDULE OF PROJECT If the reinvestment zone and tax abatement are approved, the company will begin and complete construction in 2006. PRIOR ACTION/REVIEW The Economic Development Partnership Board recommends approval (7-0). FISCAL INFORMATION Establishing the reinvestment zone has no fiscal impact. EXHIBITS Ordinance Exhibit A - Property Description Exhibit B - Site Map -1- Respectfully submitted: Linda Ratliff, Director Economic Development Department -2- S:\Our Docume~ts\Ordinances\O4~Fastenal Reinvestment O~l,floe ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS DESIGNATING A CERTAIN AREA WITHIN THE CITY LIMITS OF DENTON AS REINVESTMENT ZONE NO. VII FOR COMMERCIAL/INDUST~ TAX ABATEMENT; ESTABLISHING THE BOUNDAR~S OF SUCH ZONE; MAKING FINDINGS REQUIRED IN ACCORDANCE WITH CHAPTERS 311 AND 312 OF THE TEXAS TAX CODE; ORDAINING OTHER MATTERS RELATING THERETO; PROVIDING A SEVERABILITY CLAUSE'; PROVID- ING FOR REPEAL; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton, Texas ("City" or "Municipality") desires to promote the development or redevelopment of a certain contiguous geographic area within its corporate city limits and its jurisdiction by the creation of a reinvestment zone for commercial/industrial tax abatement, as authorized by Tex. Tax Code Ch. 312 (referred to as the "Property Redevelopment and Tax Abatement Act" or the "Act"); and WHEREAS, an industry or business known as Fastenal Company has requested tax abatement to construct a facility and build improvements within the area to be designated as investment Zone VI; and WHEREAS, the City Council desires to create a proper economic and social environment to induce investment of private resources and productive business enterprises in this area of the City, which meets the criteria established under §3 I2.202 of the Act, and to expand primary em- ployment or to attract major investment; and · WHEREAS, by resolution dated February 17, 2004, a public heating before the City Council was called, set, and held at or after 6:30 p.m. on March 2, 2004, in the City Council Chambers of the City of Denton at 215 East McKinney Street in the City of Denton, such date being at least seven days after the date of publication of notice of such public hearing and the receipt of written notices of such public hearing by the presiding officer of each taxing unit that includes in its boundaries real property that is to be included in the proposed reinvestment zone, in accordance with §312.201 of the Act; and WHEREAS, such public hearing was held before the consideration and adoption of this ordinance; and WHEREAS, the City, at that hearing, invited any interested citizen or his representative to appear and offer testimony or evidence for or against the creation of the reinvestment zone, the boundaries of the proposed ~einvestment zone, whether all or part of the territory described in the notice calling the public hearing should be included in the proposed reinvestment zone, and the concept of tax abatement; and WHEREAS, in accordance with such public notice, all owners of property within the proposed reinvestment zone and all other taxing units and other interested persons were given the opporttmity at such public hearing to protest the creation of the proposed reinvestment zone or the inclusion of their property in such reinvestment zone; and WHEREAS, on the 19th day of August, 2003, on or before the holding of the above- mentioned public hearing, the City Council passed Resolution No. 2003-021 establishing guide- lines and criteria governing tax abatement agreements and stating that the City of Denton elects to become eligible to participate in tax abatement, in accordance with Tex. Tax Code §312.002and such Policy is now in effect and was in effect prior to the public hearing; and WHEREAS, at the public hearing proponents and opponents of the reinvestment zone of- fered evidence in favor and against all matters relating to the creation of the reinvestment zone, and, after hearing this testimony and evidence, the City Council deems it in the public interest to create this reinvestment zone; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the facts and recitations contained in the preamble of this ordinance are hereby found and declared to be tree and correct. SECTION 2. That for the purposes of this ordinance, the following terms and phrases shall have the following meanings ascribed to them: A. Improvements - Improvements shall include, for the purpose of establishing eligibility under the Act, any activity at the location, including, but not limited to, new construction, recon- struction, renovation and repairs. B. Taxable Real Property - Taxable real property shall be as defined in the Texas Property Tax Code and shall not include personal property as defined in the Code. C. Tangible Personal Property - Tangible Personal Property shall be defined as business per- sonal property, excluding inventory and supplies. D. Base Year - The base year for determining increased value shall be the taxable real property value assessed the year in which the Tax Abatement Agreement is executed. SECTION 3. That the City, through its City Council, after conducting the above- mentioned public hearing and having heard such evidence and testimony, makes the following findings and determinations based on the evidence and testimony presented to it: A. That the public hearing on the adoption of the reinveslment zone has been properly called, held, and conducted in accordance with §312.201 of the Act and all other applicable laws, and that notice 'of such hearing has been published as required by law and mailed to the pre- siding officer of the governing body of each taxing unit that includes in its boundaries real property that is to be included in the proposed reinvestment zone as required by law; and Page 2 of 6 B. That prior to holding the public heating, the City has adopted, by resolution, the guidelines and criteria governing tax abatement agreements by adopting a City of Denton Tax Abate- ment Policy, as mended, and the City has elected to participate in tax abatement; and C. That the City had jurisdiction to hold and conduct the public hearing on the creation of the proposed the reinvestment zone, pursuant to chapter 312 of the Act; and D. That the boundaries of the reinvestment zone shall be the area described in the metes and bounds description attached hereto as Exhibit "A" and as shown on the diagram as the area outlined in red attached hereto as Exhibit "B" and being approximately 43.653 acres at or near the intersection of Airport Road and Corbin Road in the corporate limits of the City of Denton, Texas, such Exhibits "A" and "B" being incorporated and made a part of this ordi- nance as if written word for word herein; and E. That the creation of the reinvestment zone for commercial/industrial tax abatement with the improvements expected to be developed by Fastenal Company would be of benefit to the City and to the land to be included in the zone, with the boundaries as described in Exhibit "A," after the expiration of the tax abatement agreement entered into under §312.204 of the Act, and the improvements sought are feasible and practical; and F. That the reinvestment zone as defined in Exhibit "A" and shown on Exhibit "B" meets the criteria for the creation of a reinvestment zone, as set forth in §312.202 of the Act, since it is, "reasonably likely, as a result of the designation, to contribute to the retention or expansion of primary employment or to attract major investment in the zone that would be a benefit to the property and that would contribute to the economic development of the Municipality;" and G. That the reinvestment zone as defined in Exhibit "A" and shown on Exhibit "B" meets the criteria for the creation of a reinvestment zone as set forth in the Denton Policy for Tax Abatement and the expected improvements in the boundaries of the zone are expected to en- hance significantly the value of all taxable real property and tangible personal property lo- cated within the reinvestment zone. SECTION 4. That pursuant to §312.201 of the Act, the City, through its City Council, hereby creates a reinvestment zone for commercial/industrial tax abatement encompassing only the area described by the metes and bounds description in Exhibit "A" attached hereto and as shown on Exhibit "B" attached hereto and such reinvestment zone is hereby designated and shall hereinaRer be designated as Reinvestment Zone No. VII, City of Denton, Texas. SECTION 5. That Reinvestment Zone No. VII shall be effective as of January 1, 2007, and shall terminate five years from that date, on December 31, 2012, unless extended for an ad- ditional five-year term or unless earlier terminated by action of the City Council in accordance with §312.203 of the Act. SECTION 6. That to be eligible for tax abatement, a commercial/industrial project shall: Page 3 of 6 A. Be located wholly within the zone established herein; B. Meet the requirements of the Denton Tax Abatement Policy; C. Not include property that is owned or leased by a member of the City Council of the City of Denton, or by a member of the Planning & Zoning Commission; D. Conform to the requirements of the City's zoning ordinance and all other applicable laws and regulations; and E. Have and maintain all land located within the designated zone, appraised at market value for tax purposes. SECTION 7. That written tax abatement agreements with property owners located within the zone shall provide the terms regarding duration of exemption and share of taxable real property and/or tangible personal property located on the real property for taxation as approved hereunder, as shown below: A. Duration of exemption from two years to ten years depending on the value of the structures and real property in accordance with the Denton Tax Abatement Policy, beginning with and including January 1, 2007; and B. Share of taxes abated - in the maximum of 35% of taxes on the total value of appraised real property improvements and tangible personal property as more particularly described in the Tax Abatement Agreement between the City of Denton and Fastenal Company, which are added, provided, however, nothing herein shall prevent any other taxing unit that includes in its boundaries real property that is included in the reinvestment zone from entering into a tax abatement agreement with a different share of taxes abated on the total value of appraised improvements which are added, in accordance with the requirements of chapter 312 of the Act. SECTION 8. That any written agreements authorized under this ordinance must include provisions for: A. Listing the kind, number, and location of all proposed improvements of the property; B. Access to and authorizing the inspection of the property by municipal employees to ensure that the improvements or repairs are made in accordance with the specifications and condi- tions of the agreements; C. Limiting the uses of the property, consistent with the general purpose of encouraging devel- opment or redevelopment of the zone during the period that property tax exemptions are in effect; Page 4 of 6 D. Recapturing of property tax revenues lost as a result of the agreement if the owner of the property fails to make the improvements or repairs as provided by the agreement; E. Containing each term agreed to by the owner of the property; F. Requiring the owner of the property to certify annually to the governing body of each taxing unit that the owner is in compliance with each applicable term of the agreement; G. Providing that the governing body of the municipality may cancel or modify the agreement if the property owner fails to comply with the agreement; H. Contain any additional terms and conditions which the City Council deems are necessary, in accordance with §312.205 of the Act, and that are negotiated with the owner of the property. Provided, however, nothing herein shall preven~ other taxing units, who include in their boundaries real property within the reinvestment zone, from negotiating terms and condi~ons that are different from any municipal tax abatement agreement, so long as the mandatory terms and conditions required by §312.205 of the Act are included. SECTION 9. That the City Cotmeil further directs and designates the City Manager and the Director of Economic Development as liaisons for communication with regard to all matters pertaining to the Zone, including, without limitation, the development of the amendment of the current Denton Tax Abatement Policy if necessary, the negotiation of tax abatement agreements with industries, commercial enterprises, and other businesses eligible for tax abatement under the Tax Abatement Policy and for communication with other taxing entities and the Economic De- velopment Partnership Board. SECTION 10. That all ordinances or parts of ordinances in force when the provisions of this ordinance became effective which are inconsistent or in conflict with the terms or provisions contained in this ordinance are hereby repealed to the extent of any such conflict. SECTION 11. That if any section, paragraph, clause, or provision in this ordinance, or application thereof to any person or circumstance is held invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause, or provision shall not affect any of the re- maining portions of this ordinance. SECTION 12. It is hereby found, determined, and declared that a sufficient written no- tice of the date, place, hour, and subject of the meeting of the City Council at which this ordi- nance was adopted was posted and placed and conveniently accessible at all times to the general public at the City Hall of the City for the time required by law, preceding this meeting, as re- quired by the Open Meetings Act, Tex. Gov'~ Code Ch. 551, and that this meeting was open to the public as required by law at all times during which this ordinance and the subject matter thereof has been discussed, considered, and formally acted upon. The City Council fttrther rati- fies, approves, and confirms such written notice and contents posting thereof. The City Council further £mds that a quorum was present at such meeting. Page 5 of 6 SECTION 13. That the contents of the notice of public heating, which heating was held before the City Council and before the passage of this ordinance on March 2, 2004, the publica- tion of said notice is hereby ratified, approved, and confirmed. SECTION 14. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: Page 6 of 6 EXHIBIT A NOTICE OF PUBLIC HEARING PUBLIC NOTICE IS HEREBY GIVEN THAT THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, WILL HOLD A PUBLIC HEARING TO ALLOW INTERESTED PERSONS TO SPEAK AND PRESENT EVIDENCE FOR OR AGAINST THE ESTABLISHMENT OF A REINVESTMENT ZONE VII FOR COMMERCIAL/ INDUSTRIAL TAX ABATEMENT PURPOSES. THE PURPOSE OF THE ZONE IS TO ATTRACT FASTENAL COMPANY AND SIMILAR INDUSTRIAL AND COMMERCIAL BUSINESS ENTERPRISES TO THE CITY OF DENTON, CREATE JOBS, EXPAND THE LOCAL TAX BASE, AND TO ATTRACT MAJOR INVESTMENT IN THE ZONE THAT WOULD BE A BENEFIT TO THE PROPERTY AND THAT WOULD CONSTRIBUTE TO THE ECONOMIC DEVELOPMENT OF THE CITY. THE PURPOSE OF THE HEARING WILL BE TO DETERMINE WHETHER THE IMPROVEMENTS SOUGHT ARE FEASIBLE AND PRACTICAL AND WOULD BE A BENEFIT TO THE LAND INCLUDED IN THE ZONE AND TO THE CITY AFTER EXPIRATION OF ANY TAX ABATEMENT AGREEMENT ENTERED INTO UNDER CHAPTER 312 OF THE TAX CODE. ALL INTERESTED PARTIES INCLUDING RESIDENTS OF THE PROPOSED ZONE ARE ENCOURAGED TO PRESENT THEIR VIEWS AT THE HEARING. THE PUBLIC HEARING WILL BE HELD ON MARCH 2, 2004, AT 6:30 P.M. IN THE CITY COUNCIL CHAMBERS AT CITY HALL, 215 E. McKINNEY. REINVESTMENT ZONE VII WILL BE COMPOSED OF APPROXIMATELY 43.653 ACRES OF LAND OUT OF WILLIAM NEILL, SURVEY ABSTRACT No. 970, DENTON COUNTY, TEXAS, THE REINVESTMENT ZONE AREA IS MORE PARTICULARLY DESCRIBED AS FOLLOWS: TRACT A PROPERTY DESCRIPTION BEING A TRACT OF LAND SITUATED IN THE WILLIAM NEILL, SURVEY ABSTRACT NO. 970, DENTON COUNTY, TEXAS AND BEING A PORTION OF THAT CERTAIN TRACT OF LAND DESCRIBED IN DEED TO JOHN DEE APPLEBY, TRUSTEE, AS RECORDED IN VOLUME 2549, PAGE 277 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS, BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: BEGINNING AT A 3/8 INCH IRON ROD FOUND AT THE SOUTHEAST CORNER OF SAID APPLEBY TRACT, BEING THE NORTHEAST CORNER OF THE J. W. HARDING SURVEY, ABSTRACT NO. 1658, AND THE NORTHERLY MOST SOUTHEAST CORNER OF SAID WILLIAM NEILL SURVEY, LYING IN THE APPROXIMATE CENTERLINE OF CORBIN ROAD; THENCE N 89 DEGREES 16 MINUTES 51 SECONDS W, ALONG THE SOUTH BOUNDARY LINE OF SAID APPLEBY TRACT AT 25.94 FEET PASSING A 8 INCH CREOSOTE POST, AND CONTINUING GENERALLY WITH A BARBED WIRE FENCE IN ALL A TOTAL DISTANCE OF 1462.22 FEET TO A ½ INCH IRON ROD SET; THENCE N 00 DEGREES 24 MINUTES 11 SECONDS W, 750.57 FEET DEPARTING SAID BOUNDARY LINE TO A 6" WOOD POST FOUND AT THE SOUTHWEST CORNER OF A TRACT OF LAND DESCRIBED IN DEED TO J. NEWTON RAYZOR, AS RECORDED IN VOLUME 1796, PAGE 601 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS LYING IN NORTH BOUNDARY LINE OF SAID APPLEBY TRACT; THENCE S 89 DEGREES 17 MINUTES 48 SECONDS E, ALONG THE COMMON BOUNDARY LINE BETWEEN SAID APPLEBY TRACT AND SAID RAYZOR TRACT AT 1426.49 FEET PASSING A 5/8 INCH CAPPED IRON ROD FOUND, AND CONTINUING IN ALL A TOTAL DISTANCE OF 1456.55 FEET TO A ½ INCH IRON ROD FOUND AT THE NORTHEAST CORNER OF SAID APPLEBY TRACT BEING THE SOUTHEAST CORNER OF SAID RAYZOR TRACT, AND LYING IN THE APPROXIMATE CENTERLINE OF AFORESAID CORBIN ROAD; THENCE S 00 DEGREES 01 MINUTES 56 SECONDS E, 751.02 FEET ALONG THE EAST BOUNDARY LINE OF SAID APPLEBY TRACT WITH THE APPROXIMATE CENTERLINE OF SAID CORBIN ROAD TO THE PLACE OF BEGINNING, CONTAINING 25.153 ACRES (1,095,649 SQUARE FEET) OF LAND, MORE OR LESS. AND TRACT B PROPERTY DESCRIPTION BEING A PART OF THE WILLIAM NEILL SURVEY, ABSTRACT NO. 970 AND A PART OF SAID 20 ACRE TRACT AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN THE SOUTH LINE OF THE FARM TO MARKET HIGHWAY NO. 1515, SAID POINT BEING 1886 FEET SOUTH 89 DEGREES 20 MINUTES EAST AND 90 FEET SOUTH OF THE SOUTHWEST CORNER OF FIRST TRACT ABOVE DESCRIBED, AND BEING 45 FEET SOUTH OF THE NORTHWEST CORNER OF SAID 20 ACRE TRACT; THENCE EAST ALONG THE SOUTH LINE OF SAID HIGHWAY, 1457.2 FEET TO POINT IN THE EAST LINE OF SAID NEILL SURVEY 45 FEET SOUTH OF THE NORTHEAST CORNER OF SAID 20 ACRE TRACT; THENCE SOUTH ALONG THE EAST LINE OF SAID TRACT AND SURVEY 552.83 FEET TO THE SOUTHEAST CORNER OF SAID 20 ACRE TRACT; THENCE WEST 1457.2 FEET TO THE SOUTHWEST CORNER OF SAID 20 ACRE TRACT; THENCE NORTH 552.83 FEET TO THE PLACE OF BEGINNING, AND CONTAINING 18.5 ACRES OF LAND, MORE OR LESS. BEING THE SAME PROPERTY AS SET OUT IN WARRANTY DEED DATED NOVEMBER 4, 1955, EXECUTED BY JIMMIE UNDERWOOD, A FEME SOLE, ET AL TO J. NEWTON RAYZOR, RECORDED IN VOLUME 417, PAGE 399, DEED RECORDS, DENTON COUNTY, TEXAS. TOTAL OF TRACTS A AND B CONTAINING 43.653 ACRES, MORE OR LESS. EXH!BIT B N Proposed F'astenal Site AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 2, 2004 Economic Development Mike Conduff, City Manager~/~'~ SUBJECT CONSIDER ADOPTION OF AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE A TAX ABATEMENT AGREEMENT WITH FASTENAL COMPANY; SETTING FORTH ALL THE REQUIRED TERMS OF THE TAX ABATEMENT AGREEMENT IN ACCORDANCE WITH THE TERMS OF CHAPTER 312 OF THE TEXAS TAX CODE; SETTING FORTH THE VARIOUS CONDITIONS PRECEDENT TO FASTENAL COMPANY RECEIVING THE TAX ABATEMENT; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE (ECONOMIC DEVELOPMENT PARTNERSHIP BOARD RECOMMENDS 7-0). BACKGROUND Representatives of Fastenal Company requested a tax abatement for their proposed Denton project. The company's current distribution center for this area is located in leased space in Carrollton, Texas. Activity at the new site would include distribution of Fastenal products to Texas and its bordering states and manufacture of some products. The facility will also become Fastenal's regional headquarters as well as a training center for employees. The corporate headquarters are located in Winona, Minnesota. Fastenal is the world's largest distributor of fasteners. The company has 1,400 locations with sales of $982 million last year. Fastenal plans to open 25 stores this year which will put their sales over $1 billion next year. Fastenal works with the Center for Logistics Education and Research at the University of North Texas, recruiting employees and providing practical experience for interns. The Denton location will enable the company to increase its involvement with the university. Last year, Fastenal representatives selected another site in Denton, but due to soil problems were required to abandon that site. The company employs 86 at the Carrollton facility. They plan to employ 113 and grow to 245 in their new facility. Fasten submitted a request for tax abatement on January 2, 2004. The application is attached as Exhibit B of the tax abatement agreement. Although the company will invest over $8 million in the site, it is estimated that the project will result in approximately $6.5 million in increased valuation. The proposed agreement requires a total threshold of $5 million, the minimum amount to receive tax abatement. Should the new valuation be less than $5 million, no abatement shall be given. The project does not meet the $10 million threshold for Denton County, and, therefore, will not be considered by Denton County for incentives. -1- ESTIMATED SCHEDULE OF PROJECT If approved, Fastenal Company plans to construct and occupy the new facility in 2006. The abatement would begin the year following receipt of certificate of occupancy. PRIOR ACTION/REVIEW The Economic Development Partnership Board recommends approval of the tax abatement request (7-0). FISCAL INFORMATION A five-year cost/benefit analysis indicates an overall impact to the community of $8,245,562. Estimated Wage Impact $6,529,886 New Taxes (Based on increased valuation of $6,500,000) $605,800 $178,149 $80,915 $864,864 Abatement $0 ($62,352) $0 ($62,352) Electric Utilities (five years) $895,000 $895,000 Water Utilities (five years) $12,550 $12,550 Wastewater Utilities (five years) $5,614 $5,614 IrvIPA~T $80 ~i5 $8 g~$ S6~ Respectfully submitted: Linda Ratliff, Director Economic Development Department Attachments: Agreement with Exhibits: Exhibit A - Property Description Exhibit B - Tax Abatement Application Exhibit C - Ordinance Exhibit D - Board of Directors Authorization -2- S:\Our Documents\Ordinances\04~Fas~mal Abatement Ordinance.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE A TAX ABATEMENT AGREEMENT WITH FASTENAL COMPANY; SETTING FORTH ALL THE REQUIRED TERMS OF THE TAX ABATEMENT AGREEMENT IN ACCORDANCE WITH THE TERMS OF CHAPTER 312 OF THE TEXAS TAX CODE; SETTING FORTH THE VARI- OUS CONDITIONS pRECEDENT TO FASTENAL COMPANY RECEWING THE TAX ABATEMENT; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. VqI-IEREAS, on the 2nd day of March, 2004, after a public hearing duly held in accor- dance with Tex. Tax Code §312.201 (the "Act"), the City Council passed Ordinance No. 2004- (the "Ordinance") establishing Reinvestment Zone No. VII, City of Denton, Texas as a commercial/industrial reinvestment zone for tax abatement (the "Zone"), as authorized by Title 3, Chapter 312, Subchapter B of the Act; and WHEREAS, on the 2nd day of January, 2004 Fastenal Company submitted an application for tax abatement with various attachments to the City concerning the contemplated use of cer- tain property located within the Zone; and WHEREAS, the City Council finds that the contemplated use of the premises and the contemplated improvements to the premises, as indicated by Fastenal Company are consistent with encouraging the development of the Zone in accordance with the purposes for its creation and are in compliance with the Denton Tax Abatement Policy; and WHEREAS, the City Council deems it in the public interest to enter into a Tax Abate- ment Agreement with Fastenal Company; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the findings contained in the preamble to this ordinance are true and correct and are adopted as a part of the whole ordinance. SECTION 2. That the City Council finds and determines the following: 1. That the contemplated use of the premises and the contemplated improvements of the prem- ises, as indicated by Fastenal Company are consistent with encouraging the development of the Zone in accordance with the purposes of its creation and are in compliance with the Denton Tax Abatement Policy. 2. That the City Council finds that the improvements sought by Fastenal Company within the Zone are feasible and practical and would be a benefit to the land to be included in the Zone and to the City after the expiration of the Tax Abatement Agreement to be entered into with Fastenal Company. 3. That the City Council finds that the Tax Abatement Agreement contains all the terms which are mandatorily required to be included in any tax abatement agreement under §312.205 of the Act. 4. That, in accordance with §312.2041 of the Act, the City Council finds that not later than the date on which the City Council considered this ordinance, and not later than the seventh day before the date the City enters into a Tax Abatement Agreement with Fastenal Company, that the City Manager, through the Director of. Economic Development, who are hereby desig- nated and authorized by the City Council to give such notice, delivered to the presiding offi- cer of the Denton Independent School District and Denton County a written notice that the City intends to enter into this Tax Abatement Agreement with Fastenal Company, and that this notice included a copy of the proposed Tax Abatement Agreement in substantially the form of the Tax Abatement Agreement attached to this ordinance. 5. That before the passage of this ordinance, the City Council held a public hearing in accor- dance with §312.201 of the Act and created Reinvestment Zone No. VII. 6. The City Council finds that the project within Reinvestment Zone No. VII is a redevelopment of an existing business as defined in the Tax Abatement Policy and requires additional incen- tives to promote economic development that generally satisfies the requirements of the policy and the City Council hereby waives the minimum threshold requirement within the policy for tax abatement and authorizes'a tax abatement of a maximum of 35% on the increased valua- tion of the Taxable Real Property improvements and tangible personal property as more par- ticularly described in the Tax Abatement Agreement attached hereto and made a part hereof by reference as Exhibit "A" (the "Tax Abatement Agreement"). SECTION 3. That the Mayor, or in her absence, the Mayor Pro Tem, is hereby author- ized to execute the Tax Abatement Agreement with Flowers Baking Co. of Denton LLC. in sub- stantially the same form as the Tax Abatement Agreement attached as Exhibit "A"~ SECTION 4. That the City Council hereby instructs and authorizes the City Manager to inspect, audit, and evaluate the progress of Fastenal Company to determine if it has met all of the conditions of the attached Tax Abatement Agreement prior to the tax abatement going into ef- fect. SECTION 5. That if any section, subsection, paragraph, sentence, clause, phrase, or word in this ordinance, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, the City Council of the City of Denton hereby declares that they would have enacted such remaining portions despite any such validity. SECTION 6. That this ordinance shall become effective immediately upon its passage and approval. Page 2 of 3 PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: Page 3 of 3 FAX ABATE=MEN ,I AGREEMENT This Tax Abatement Agreement (tl~e ".Agreement")is entered into by a~ad between the City of Denton, Texas (the '~City"), d'k~ly ac6ng herein by and ~hrough its Mayor~ and Fas~enal Company, a Minnesota Co~poration (the "Owner"), duly authorized to do bush:tess and in. good standing in tl~e State of Texas, duty acting hereh~ by and throttgh its aut~hofized officer. WHEREAS, tl~e City !~as adopted a resolu6on which provides tidal ~t: eIects to Pe eliglb!e to participate in tax abatement and has adopteq guideli~es and crkeria governing t~ abatement agreements known as the [ colon Tax Abatemem: Policy; WHEREAS, o~ tine 19~l' day of August, 2003, the City Counci~ of Oen~oaa, Texas (the ~.[5 Counc~W} adopted the Denton Tax Aba'tement: Policy' (tt~e "Pol:~cv'), a copy of which is on file in the City of Denton ~Economic De'~?elop:men~ Of]See and which is in:corporal:ed hereh'~ by retkrence; WHEREAS,: the Pohcy constitutes appropriaie "guidehnes zmd c:dteria" governing mx abatement agreements to be entered into by the City as contemplated by Section 312.002 of the Texas Tax Code, as amen. deal (the "Code"); '~: "HEREAS.'" '~' "on the 2~a day of March 20f~4. the C~iy": Council passed Ordinance No. (the '*Ordinance") establishing Reinvesimeni Zone No. VII, City of Denton, Texas, as a commercial/industrial reinveStment zone for tax aba:;:ement (the "Zone"), as amhorized by Title 3, Chapter 312, Subchapter B of'the Code (the WHEREAS, Owner will be :tlae owner, a of the Ef~kctive Dante (as herei~mfter defined), which ownership is a condi6on precedent, of:ceaain real property, more particularly described ~×h~b~t "A' attached here[o and incorporated herein by re£erence a'~:d made a pan of t:b~ A~ree,~ m=ent for aH ]:m~oses (!he ,Premises') boated enfire=[y ~wit]:~h~ the Zone as of the EffeciP~¢e Date; WHEREAS, on d'~e 2n~ day of J~nuary 2004, Owner subm]~led an application t~r tax abaiemem with various attachmems to ~he City concerning the contemplated tae of the Premises (the "Apphcafion tk~r Tax Abatement"}, whkh ~s attached hereto and incorporated herein by erence as Exh:ib:~i ~:~B W}iE~.AS, the City Council finds tha the cont:emphred use of tl~e Premises, the Con- templatcd improvements (as hereinaller defined)to the Premises as set foah h:~ 'this Agreement., and the oiher lem~:s: hereof are consistm~t with encouraging development of ihe Zone in accor- dance w~th the purposes for ks creation and are in con:mli~me with the OrdJn.a~ce and Policy and sinS[ar guidelhms and crkefia adopted by the C~ty and all appheak le law; and ~ HEREAS, notice Ires bee~ published h:~ acco~xiance w~lh (~hap~er 312 of the Tax Code and written notice that !he C~ty intends ~o ~ter imo this Agreement, along with a copy of this Agreemen. t, has been fim~Jshed by the City, in the roamer and by tim time prescribed by the Code, to the pres/ding officers of the governing bodies of each of ~:2e taxing u~:'~ts in whkh the Premises is located; NOW,. THEREFORE,. the City m~d Ow~er for and in consideratioii of ~he premises the promises contained herein do hereby contract, covenant, and agree a follows: TERMS AND CONDITIONS OF ABATEMENT A, In considera!ion of ~d subject to the Owner meeting al~ the mrms a~d condit~:ons of abatement set forth herein.~ the City' hereby gray, ts the following tax abaemen't ("Abatement"): ~. An abaement equal to 35% of City ad valorem taxes att6butable to ~;~ew capital vesmmnts resulting in an increase of assessed value of rea~ propeay improvements a~d. tangible persona[ propegy (e:x:ck~ding inventoo' al:id ;supplies.)~ocated on the Page 2 Prem.ises bm only :if stroh incre~e is at least $5~000,000 over the assessed value of the Premises and: tangible pemorta] properly ~exclm.~h,g in:vem:ory and su. ppBes) ioeated on the Premises as of January l, 2003, t?or a period of five years commencing Jamm. ry I of tt~e year fol~ow'ing the Owner's issuaace of a cea:iBc.ale of occucm:my (the "CO") f~:~r tile Premises~ If sucl~ increase :~n assessed vaikte :~s !ess tha~ $5,000,000 lhere will be no Abatemcni~ B. A coaditio.~ ofth. e Abatement is tl:~at,~ by December 3~1, 2006 (subject: to :force jet, re de~ays no! to exceed i80 days}, a. capital h~veslmen't wl:~ict~ res~lts :in a:n increase in the as- sessed values conimnpla.tcd by Section ILA..'I be made to the P'remises. For ti'lc pu~oses of this paragraph, the term "force majeure" S!:la]} ~ea:a any circums'~:a~ce or any condition beyond the comrol of Owner~ as set: t~o~h in Section .XXI "Force ~ ~ ' . .M.~le[~re wh:ich makes i;t impossible meet tl;~e aPove:-mentio~ed d:~resho~ds.. The ~erm ~'~capiml mvesuacn~ is; de:~md: as lhe constructior,~ renovatim~ m:~d equipping of ti~e improvemenls on thc Premises (!he ~Con[emp.!a~ed lmprovem~ts*' or provcmer[~:s ) to inc~u, d e ([) costs related [o t!m de~*eiopmem and i;mproveme:u! of ~he rea~ estate,, including, wi~tm, u~ ~im~tation., construction costs and desi~ and en. gineer~ng cos!s; (2) Im~gible persol~a] prope:rty ~ocaied on or al t]~e Contemplated improvements by Owner, exck~ding to~~ and supplies. The kind and location o~ the Contemplated !~mpmvamen~s is ;more :pa~icu[arly described in the Applicatio~ for Tax Abatement. D. A co~diticm of the Abstemem is tl~a.[ the Contemplated Improvements be stmcted: and the Premises be t:~sed substa;r~fia~ly h~ accordmxce w'ith tl, e desc~Sptima o~: tl~, project set: Grt!~ h~ ihe Application :tbr Tax Abatement. A condition of tim Abatemes't ~s that throughout tl~e Tem~ of the A. batc~ment, Cm~temp]ated h!~pro'vem, enis stroll 'be operated mxl maima:ined tsar the pu~oses set :forth herein Page 3 so ~.haI the uses of:'the Premises shall be consistent with the genera~ pu~ose of encot:~ragi:ng de- velopment or redeve!opmen~ of the Zo~e, except as oiherwise authorized or modi:fied by this Agreemen[. The City shall have ~he right to term[amc the Abatement: if the Owner does ~ot occupy l!ae Contemplated Improvements continuously for tlhe lema of the Abatcmen~ tbr the pur- poses scl: fc, rtla in: the fax Abatemem Application~ In the even~; of gush termination ihe Owner shal~ refund to the City ali previous t[~x abatements ~d a.!~ lax abate:men:ts :~br fu;ture years sba. l[ be terminated,. G. meni,. Owner agrees to comply with. ail fhe leans and crmqii:ions set :f'o~h in ~his Agree- FAILURE TO MEET CO:NDITIONS A. In the event that (i) fl'm conditions in paragraphs t(B) throagh I(G) are not met; or (ii) Owner allows its ad wlorem :real proper~y taxes wi~h respect to tBe Premises or Improve- meres, or its ad vabmm taxes with respect to any t~ngibl, e personal propen:y, if m~y, owned by the Owner wtfich is located in the Improvemcnls, owed the City: to become delinquent ~d :fails to timely and properly fk~!~ow the legal procedures f~,r protest an&,'o,r contest or' any such ad valormn rea. l prope~1:y or tangible, personal propeay taxes; or (iii) any o!her conditions of this Agreement: are no, t met, ~:hen a "Condition Fa:i]ure' shall be deemed to have occurred (2 being understood ii, al a Condition Failure relating to a~y condition set lk~rth :in paragraphs I(B)throagh I(H) shall not be deemed to occm: merely because at a particular' t:ime it cannot be detemfined whelber such condition wit] be met, but shat[ occar only i:t' ar a particular time it can be defim- fively determined tirol such condition will not be me0. in the evem that a Condition Fail. are oc- curs, the City shall give Owner written notice of such Condition Failt~re and if 'gm Condition Faibare bas not been cared or satisfied within ninety (90) days of sa~d wriilen notice, ti~e Abme- Pa,ge 4 m. ent shall be tem~iaate~] with :respect: ho the year in which notice of ibc Condition Failum :is given and all future yem"s; provided, however, tha~ if such C~ndition Failure ~,s no~: :reasonably susceptible of cure or s.atishcfion wi:fi}in such :ninely (90) day pehod m~d Owner has commenced and is pursuh:~g ~he cure or sai sihction of same, ~:t~en a:aer first a~fsi~g Ci'ty Counci~ c~re o:r satisfy same, Owner may utilize an addil~onaI ninety (90) days. Ti:me :t~regoing 180 days may be authorized by fl~e City Com'~ci!~ It is understood ~:har the Aba!ement with. respect to any year prior Io lhe year in which aotice of the Condition Failure n~t be forfeited or recaptured cxcep~ as indicamd uncle, Sectio~ !I,B hereof.. Notw;ithstanding aay provision in fi~is Ag~'eemem to '~Be conlrary, Owner s:!~a}! re:fi~:ad to tl~e City all mx: abate- ment8 previously received witt~ i:nfemsi t'0r the year in which lhe notice of Cond:~tion Faitum B. I£ ]~owever, the Ow~e;' E~:i:ls to construct any structures o:r other improvements, or fails ~:o insla.ll any equipment or otl~er tangible personal pmper'[y witt~n the Premises by Decem- ber 37~, 2006 or if the value olYthe Improvements t'hlls below the minimum $5,000~000 threshold during the t:em~ of the Abatemenl, then this Agreement may be 'tem~:inat~d by tl~m Cit:y, In sucl~ event:, Owner shall refund ~o the City a'[1 mx abalements preJ~'iously granted and received under this Agreement with 'interest on [Be amount m be refunded at six pemenl (6%} per an. num. In the even~ of a Condition Failure by Owner which is no:i cured or safis:aed as scl t'o~lB herein, in addition l.o a partial or ~0tal recapture ol~the t:ax abatement, the City may e. arme~ or modi¢ tBis Agreeme~[~ RECORDS AND EVALUATION OF PROJECT A~ T!le Owner shall provide access m~d: a~thoNze inspection o:r the Premises by City employees and allow su~ficim~t inspection of financial :infbmmfion to i~sure !ha! the :improve- meats are made ~d [he thresholds are met accordi~g 'to the specifications and conditions oft:his Page 5 Agreement, Such inspeetio~m shall be done in a way that wii[ not intert~ere wflh Owner's bush ness operalions. City shall annually (or such other times deemed appropdala by the City) ,;:re the Project to ensare compliance wi~l:a this Agreement., Owner shall provide infomml:ion to the City on a tb:nn, provided by the City for the evaluation. The inSwmat[on shall inch,:de h~ven- to~~ listing the kind, numbc.. ~md location of and the ~.om! value of all Improvements D the P~yemises, including, without limitation, the value o:fall structures: and all ia:ngible persona[ pmp~. erty insiaIled or located in tl~e Promises, B. The C:ity Manager shat1 make a decision and role on. the eligibility of the Project fbr tax abaiemen:t based on the information t5~.rnished each year by l:he Owner on or before gust: I of the taxable year and shall, so notil}' Own. er and the City C.. DmSng normal office hours throughou! the Term of this Agreement, providing reasonaNe notice is g~ven to Owner, ~he C~ty shall have access to the Premises by C~[y empIoy~ ecs tbr ihe p~rpose of inspecting the Prenfises and fl~e [m:provemen:ts to ensure thai the provements a:re being made h.~ acem'dance with the specificarfo~s ~d conditions of th~s Agree- ment and to verJ(y thai t:be condh~ons of ~his Agreemem are: being complied with~ provided tbm such h~spection sha. l~ no~ in:retire with Owner's norma~ bt[si:ness opermions~ D. The Owner' shall annually make a certification h'~ writing to the City Council, or before June Is~ of each year this Agreement ts in effect that cea:files thai th~ Owner ~s in eom- plia~ce with each app]icab!e term of this Agreement. GENERAL PROVISIONS A, The City has determined tl:mt it has adopted, guidelines and criteria governing tax abatement agreements lbr the City to allow fi to enter into tt:fis Agreement containing tlm terms set forth herein. Page 6 Tl~e City has dete~:ined that procedures ~:ol!owed by the City ,:on,omit:" to i/he re- quirements of the Code a~d the Po[i. cy, and have bem~ and wi~I be underq:aken in coordination with Owner's coq>orate, public emp]o>ee, a!!d busi~ess relations requirements.. C. The Premises are no~ in a:n improvement prq[ec~t finmwed by tax increment bonds. Neitl~e:r ~:he Premises ~mr a.ny o ~ l:[}e impro,vements covered by this Agreeme~t are owned or leased by' m~y member o~7't:he City Council, any member of the City P~tmming ~d ing Co, mmissio~ c:~: thc Cit:y, or miy member of t!ne govem:h~g body of any tax:h~g ~mits joining or adopting tl~is E. ~n the event of: m~y con, filet beBveen tim City zoning ordinances, or other Cily or- dinances or z gulat~.o~s, a:~:~d l:h:[s Agreemeni, such oral:inmates or regu}atio¢~s sha]} control. .EFFECT OF SALE, ASSIGNMENT, OR LEASE OF PROPERTY A. The Abatemenl with respec! to the Preniises, includi~g any tangible property located on tl~e Pren:~ises owned by Owner, sha~l vest: in~ Owner and stmil be assignable, wit;h C~b5 approval, wl~'ich sl~a!! uot: be m~reaso~mbly wi'~hhe}d, t:o m'~y individual, pa~nersl~ip, joint venture, co¢oration, trust or ot/~er e~tity (irrespective of whether o:r ~:~ot srmh assignee is re[a!ed ~o or affiT~i~t~ed wit:!~ Ow~e:r) wl~ic~ acq~.tires ~it:le to :tl~e Premises. A:ny assignee of Owner or a.tlS' assignee ora direct or J:ndirec~: assignee of Owner sim. Il be treated as "Owner" under ti!is Agreement. No a.ssigmnent gl:roll reqtzire the coarse:m: of C:[l:y if :tl:~e assignment is to a owned snbsidi, ary o:f tim ()wrier or i:~; ~:bliowing such assignment, dxe Owner cont:im:,es to occupy' and operate the Comemplated hnprovements for l:he :fllli term of this Agreement. Nor shall cm~sent ot7 tl:m City be necessary :if the assignee agrees to ti.~lly' comply wit:]~ tlm 1:erms mid condi- tions: of th. is Agreemem. Page 7 VL NOT1CE Ail aotices cal~ed £or or required by [bis Agreem. en~ shal! be addressed to the fb!Iowing, or such other party or address as either party designated in writing, by ceni:tYed mail postage pre~ pare, by hand delivery or via facsmi!e: OWNER: Dana Johnson Property Administration P~O,: Box 978 W~nona, MN 55987 Fax. No 50T453~8257 CITY; MiehaeI A, Condufl} City Manager City o f Dcm:on 215 Ea~t McKJmmy Denton, Texas 76,201 Fax No, 940,349,8596 VI1. Cf'FY COUNCIL AUTHORIZATION This AgreemenI was auttmdzed by tl~e City' Council by passage of an enabling ord, ina~ce at its meeting on tl'~e 2nd day of MarCh, 2004, amhorizing the Mayor m execttte this Agreement on behalf ofti~e City, a copy of which is al, tached hm;eto and inco~poramd heroin by reikrm~ce as Exhibit Viii, BOARD OF DIRECTORS AUTHORIZATION 1'his Abn-eemenl was entered into by Owner; pursuant to anihority granted by the Bo~d of Directors of'its uhimate parent, Fasienal Company, a Minnesota co~oration, as authorized by corporate resolution to execute this Agreement on behaffof Owner; a cenificaie evidencing such: reso!ution m'~d consent ~s attached hereto mad incmTora~ed heroin as Exhibit "D" as if writmn 'word :fbr word herejm IX~ SEVER.ABIILTY fn t,he event any seclion, subsec:fion~ paragraph, sentence, phrase or word is held :invalid, iliega], or u:nco, rtstimtional, the bal~mce of il:tis Agreemen[ sim],! stand., shalI be enforceable Page 8 s:h, alI be read as ~fthe pad,ties intended al al! times ~o delete said ~nva[id section,, subsection, para~ graph, se~tence, phrase~ or wo~d. h~ Ll~e event thru (~) the te~n of the Abatemeni wRh ,u~y property i:s Ionger than a~lowed by ~aw. or (i~) the AbaI~met~t applies to a broader classifica- tion of property than ~s allowed by la:w~ ~t~e~ tl~e Aba:tement shall: be valid wi~h :respect to the ciassifica:t~on ofproperty abated hermmder~ m~d the port/on of the term, that 7~s allowed by ta:w~ X~ ESTOPPEL CERTIF'ICATE A.y pm~y hem~:o may request an estoppe~ cert]fiea:te fi-om, the other party hereto so tong as tl:~e een~fieate ~s requested in connection Mth a bona :~ide bus[ness pu¢ose~ The ce~l:~ficatc, wlfich :~f requested w~l! be addressed t,o t]~e Owner, shall Jnelude~ bn~ no:t necessarily be to. statements ~hat this Agrecmmn ~s ~n, full fbrce and effect w~thout de~au.~l (or if de~i~:~t exes:ts the ~.al:um of defauJt and curative action~, which should be underiakcn to cum same), the mmain~ lng term of th.~s Agrcemem, the levels and remaining lam! of [lie Abatement in, e'ftkc~;, a~d such or:her ma:tters reasonably req[~estcd by tim party0es)to :receive the XI OWNER SI'AND Owner; as a part:y ~[o []:tis Agreement, shat1 be deemed a proper and :necessary party in any th~gafion questioning or ehat~m~ging the vahdJty of th. is :Agreemem or any o:f the underlying dinances~ resoh~tio~s, or City Counc~ actions a~:thofizing same ~md Owner shall be entitled to inte~,ene in said ~ifiga~;ion~ APPLICABLE LAW Th~s Agreement sha~]: be cons:trued under the laws ofLhe S;t~.te of Texas and ~s fl4~y per~ lb, rmable h~ De~'~ton County~ Texas. Venue :[br m~y action under tiffs Agreemem: Dento~ Cmmly, Texas:. Page 9 XIiI, RiECORDATION OF AGREEMENT A certified copy of this Agreement in r¢cordab~e ~>m~ shall be recorded i:¢ ttm Deed Re- cords of Denton Cmm~y, Tex:a.s~ X!V. MUTUAl.. ASS [STANCE C~ty and Owner agree to do ail 'things reasonably necessary or appropria:te to can~y out tile temps and pro:visions of tl.~is Agreemen~ and to aid and assist each, other in can'ying out such terms and provisions. Owner and City agree ar any time, and from time to time, to exec:ule m:~y and all documenB reaso:nably reqnesled by the other party to carry ou~ ~he inlemt of IBis Agree~ XV. ENTIRE AGREEMENT This ins~.mmem w:it:h tl~e attact'md exhibits contains tim entire agreement between ~h.e par- ties wi!h respect to the !ra.nsact:ion contempNl;ed in this Agreement~ XVI~ BI'NDING Tt~is Agu'eement shall be binding o,n ihe parties and the respective successors, a~slgns, heirs, and legal representatives. XV[I. (.OUNTERPARTS This Agreement may be, executed in cou. n..te~ar!s, each of which shall be deemed an ohgina~, but ail .o,¢ which together sl:m][ co:nstimte one and t]~e same inslrument.. Page 1 O XVHL SECTION AND OTHER HEADINGS S¢clion or o~her headings contained in this Agreement are t'or reference p~oses only and sl:m~l not affect ;i~ any way the meaning or imeeretalion of this Agreemenl. XLX, NO JOINT VENTURE No~hmg conta:b:~ed in this Agreement is iT~:~tended by the parties to crem;e a part~mrship or joim ventttre between the pa~Ses, m~d any implication to the conlr~y is hereby disavowed. XX~ AMENDMENT This Agreement may be modified by the parties heroic m inc'[ude other provisions which co,rid have originally been irtcluded in this .Agmemcni or to detete provisions: tha:t were not ori~ginalIy necessary to this Agreemem p~rsuam to the procedures set 1brlh in Title 3, Chapter 3!2 oF [!~e Code, XXL FORCE MAJEURE f12 because of riood, ~m, explos:ion, s, civi:[ df stm:bm;lces, sl:rik:es,: war, ac~s o:£ God, ar otb er causes beyond the control of either Pm-ty, .either Parl:y is not able lo perfom~ any or ail of its obIi.~ gafions under' this Agreemem, then the respective Pa[t4y's obliga:t:ions herem~der shal.[ be pended during: stroh period but ti:~r no longer fMn such period of time when the part:y is u~nab!e perform~ Page l~ ] This ,Agreemem is cxecmed Io Pe e:ffectiv¢ 30 days afl::¢r the execmed da~e of tt~e 2~ da3,' of M~ch. 200,4, (the ~Ef:l[~:ct:i~,'e ],:~a,t¢ :) by duly a:utl~ofized ~:fficiaN of tl~e City and Owner, CiTY OF DENTON, TEXAS Eb, L~E BROCK,, MAYOR ATTEST: JENNIFER WALTERS, CiTY SECRETARY' A~aPROVED AS 7'0 LEGAL FORM: HERBERT L. PROUTY', CITY A,TTO~NEY FASTENA L COMPANY, ATTEST: BY: DANA Page 12 STATE OF TEXAS COUNTY OF DENTON Before me, the u.ndersigned authority, a Noi:~O' Public :in and £or said Slate of Texas, on this day personally appeared Eu[ine Brock:, Mayor :~:or the City of Denton, kt~ow~ m me to be the person wl~o signed: and executed the tbregoing insmamem, and aCkno,w[edged ~o me that ~;hJs im strumem was executed :~Br t:he proposes and consideration, therein expmsse& (j~ven under my tm,nd and seal of office this ll~e, day o:f March. 200& Notary Public in and for the State of Texas MY CommissiOn Expires: Page 13 STATE OF MN COUN'I"Y OF Before mc, the undersigned, Dana Jolmson, on beha!fof Fastenal Company, known to me to be Property Adminis!;ra[or, am~ to be tl~e person who signed and execumd the forego:ing in- s[mmen,t, and acknowledged to me ttmt this instrument was executed for the pu:q~oses and corn siderafion t:h, ereh~ exppessed, Given under my hand and seat of oRice" "'--i'~:~"¢, m~s me//..) ~ !-.'.~ day o:f' February, 2004. in and fbr fl'm Stale of__~ ............ My Commission, Expires: Exhibh: A Trac~ A ,,Pro.~p er~'v~. Description Being a tract of land situated in :tl'~.e WILLIAM N" ;~ Eli. L, SIIRVEY ABSTR4. C F No~ 970, Denton C'ounI'~,, Texas and being a. portion ,. ~ cer~mn tract o! Ia ~d described in deed. to John Dee App!eby, Frustee, as recorded in 'Volume 2549, Page 2777 of [lac Rea[ Prape~ ~, Rec,n d s o f Den ton County, Tcx as:, being more l>at~cul, ar] y desCr:~bed by metes a~d botmd, s as fo~l. ows: BI:';(:~INNrNC~ at a :,/8 h~ch; ~m.n rod found at the ~ ~m~d]~east corner of sam A.ppleb5 ']'racL be;i ng tl;e Northeast comer o:F the J. W.. l-I & RI)IN G SURVEY A'BS and the '~ Normerl. y most So, utl~east corner of said WHZ!&M NEILI.., SURVEY', lying the approximate cemerline of Corb~n Road; 1 i:iENCE N 89 degrees :! 6 m:inules 51 second~ W, along lhe Somh b{mndarv bna oF sam A. pp~eby "I-rac~; at 25.94 feet pass:lng a 8 inch creosote post, and coatimfing generally with; a barbed, wire fe~'~ce in all a l;otal distance ;~ ~)'~ THENCE N 00 degrees 24 m/nuIes 11 seconds W, 7'50.57 fe. etd. eparth'~g said boundary ti:ne to a 6" wood post tbm,.d at the South'wesr corner o:fa tract of !and described in deed to J "Nev~ion Rayzor, as recorded in V~.tkm]e 1796, Page 60I oflhe Peal Property Reco~xts of Der~tor~ County, Texas lying in 'Nortl~ b~.mndary line of said Appleby FI:IENCE S 89' degrees 17 minutes .48 seconds E,, along the common boundary ~ine between said Appleby T!;act and said Rayzor Tract ar ! 426,49 feet passh~g a 5/8 inch capped iron md ~bund.. and co'm,h],u~ng in a]~ a total d~stance of ] 456.55 l~et to a ~/~ tach iron rod found a:[ the Northeast corner ofsa~d Appleby Tract being the Southeast corner of said Rayzor l'mcL and !yi~g in the approximaie cen!erhne of aGmsaid Corbin Road; 1'HENCE S 00 degrees ()i tab, utes 56 seconds E,: 75 ] .02 feet a. lon[: ~he East bound:ary line of said Appkby 71rac't with the approximaic centerl~ne o~ said Corbin Road to th.e [: L ~.~INN I, (J, conta.~n~n.~; 25.1.53 acres (1.095_649 square fk-ef~ of land, more an d Tract '13 Property Descriptior~ 7Being a par'L of the Wil~i.am Neil}] Sttrvey, Abstrac~ No. 970 and a part of said 20 acre tract: and mo:re particularly described as [bliows: I}EGINN[NG aK: a point in the soutl'~ line of the Farm to. ~ .~ ,'lar~er ~'~:ighway No~ 1 ~515:. said pr~int, being 188(5 l~et Somh 89 de~rees 20 minutes. Eas~ and 90 fee~ Soum South:west C~7)n:~er of F.~RST TI~.~CT above described, and Pein~ 45 Nc~r~Bwest corner of sa~:.id 20 acre tract; THENCE East along i:he South Ii:ne of said Highway, ' 5' '~ .':,' ~ ~ . !4~.7~,~ teetto point of said Nei~[ Su:m~ey 45 feet Sou:th of tt~e, Nortl2eas~ corner of sa~d 20 a. cre [rac't~ THENCE Sot~i:.h along the Easl ii:ne of said Era. ct and survey _¢,<~..,~.~>:~' :feet 't~'~ thc'~ Southeast: co, mcr of!' said"~ () acre tract; qTItENCE Wes.t t 457.2 the! i:o tt~e Sotrth'west corner of'said 52(} acre 'tract: T~tZENCE No, rrb 552.83 feet to, ~he place of beginnh~g, and contain:h~g 18.5 acres of land. n'~o.re, or .[:ess. Being the same prope!:~y as set out ~'~ Warranty Deed da:ted November 955, executed by Jh~:~mJe Underwood, a f~me sole, et a~ t:o J~ Newton R.ayzor, recorded in Volume 417~ Page 399~ Deed gecords, Denton County. Folal ot:* both: tracts containing 43.653 acres, more or/ess. N~ Proposed Fastenal Site EXI:HBIT B Property Owner CompmD or Project Name Mailin:g Add ross Telephone Tit!e APPLICATION FOR TAX ABATE~-IENT CtTY OF DENTON, TEXAS Kevin Freeze 4.32 Mac,arthur ['}r[~e C'a~olkon TX 75067 Fax No. 97~ ~-J ..... ~ ~-.~4a~ ~ >8o Fax NO, ;507',4'94-6604 Pro, idea chram~bgy ofpbnl openi~gs~ closings and relocations over :the past 15 5ears, Fastens[ was t;ou;nde<i in ~967 ~n Wk~ona, MN b)' compar:? Ct, airman a~d CEO,. Bob K~e~[b, Fas[eaal has expanded servicc.or:ieated; bu:siaess nem'ork c~rren:t!y ~clud.cs a;',~, in-hot, se Maat~fa~udng DN[s~on, a pr'odu~t Q{.~ality o~ ever ~00 company-o~ned se ::[-~rucks and rr'aile:s and over :~00 branch sic:es wkh [ocaSoas ia a~l 50 statics, Canada~ Mex[c% Puerto Rico and S~gapore, ' goals are growm ~:nroagt~ c:usromer se;r~ ~cc." Major fina. acial publications such as Forbes. F'ira~cia: 'Wor'kl,, ~NC. Magazine, Wortk. and Bi!sh~ess Week kayo ail mcosn:ized Fasteaal's phenomenal growth bra~ch stores in an approximate 500-tulle radius. Though a single N b generally services bm.n:cl,es [oc.ated wirbk~ Fas~enal local d~s~ribur[on operations in Texas be,san ~n ~99i wkh a lease ora 16,000 sq, E. t2ac~[it>' ~n DMlas, Texas, Th~s ~5scil]o" remak:ed i;a our public 'fi'i~ngs untff ! 995, ]n ~995 Fas~:eaal purchase8 tJf:,e cumsnt distribution cent'er io.cated ar 1432 Mac Arthur :Drive, Ca~,rokon Texas. TI'ds facility was i~urcha.sed as a 50~000 sq~ :FL ~:cilkx, k~ order' to meet iI,~e demands o.f our growi~g dlistrB~;tion and s~Jes tkis fsciii~, was expanded m 95.,000 sq. E. ~r~ !~99. 3. Pro~i~e a record of mergers am~ finan.eiai resir, ctt~rk~g da:ring the past I5 yea;rs. Fastens Com!~aay is a p~lbiic company traded on NASDAQ tinder fl~e symbol FAS% Fas[enal Company has. been pubiic since ~987. Fastei2al Compa~y ha.:~ had two small acqLaiskions ir~ rMs thne frame (ali kss then 5% c,f Fastens[ Company's saks), None of these ac'quked endrics had; operations, in Texas, Fasta~al Comp;any has severa~ operating subsidiaries~ no;~e of which ope~ae i~ fexa:,. Sc,c. a:ttaci~ed 200t and 2002 financial repons. the occupants Or the project be o~ n;.er or' lessee? i f lessee are. occt~paney corem [m~enls Mread> exis. tiag? i ~ ,~i v,,[ll b'¢ die o~aer of the Properr~ is the project a re!oeat[o, er existing [acilit? or a new r'adlit} ir:, expand operatioris? ir rdoea[ion, give cu rrenl ~oc. atkm. The c .~rrcm pr~lec~: is [o r,~ k,,,a[= o.k.:Ira= I:a. cilio~ ....... 14~2 MacArthur Drive C:a;woiitos~ Texas Property Deser:[odon Am~ched is a cop? oftl:e pr:opec[> leges! descrip[km detailing properLv's metes and bo:rods. ,*AI;i;acl"~ :m~ip of' prqiect: n:cludi~l8 .alt road~as:.<,, land nsc and zeroing ~ iii:!;ii~l 500 :l:'>2ei of si:e. Cnirrel~ 'Vah.l(~. At:lad~ copy (4' lak, s[. p;mperl:v. ~.ax ~te~it fr(m:~ the; ~)~l~,on; Apc, ro×:ima[ciy $ I;.600,000,00 Increased Valae~Es!:ima~'cd T~>la~ C:ost (~f Srn ct: :res Sil:e Deve[opm S5()0,000.00 Other ]rn:prr;vemet~rs. $0 F::slima:ed: Frccpor~ Exempt:ion Esdma;~d ~,::lecl:r~ [Jdl:l:y I:~:dt~s:rrial Dc~k~pmem RMer F:sdm~;~d War~r'Was;tewar.4:F [:aS:ast:rucmrc Asskstance ,5. micipa,ed S ] GiYe. a i)rief de;seri:pt:ion of !he a¢::i~ities i:o be perJk~r:med al t:l,~:[s location, i:adudin;g a to be p,:rod~.~ee~ am~,'~r services to be provi~e<l~ Faci[ii¥ "a [/! be !:he: regilonal o~)Sce a:~g di$[:r[b:l:I:ion cemer servici~g; '[:ex;as, .Arkm'~sas~ Loubkma. O'k ~ahom:a~ New Mex:;c[~,~ a~:d Mex co, l I~ :[~tcil:ib w~!) also p.rovide r,2g:km~l o:l'fices 2:,: d'Ss area. "[i~e :tS%ii,sty w:~ h-~clude a Pr<~jec~ Crm:stru¢'/Iio:~:~ Phase, t3 Empioyees tra~sl~rmd fi'om outside Den,~on Net permanent fl~[I-dnm jobs [A, IT'ti~:RJS time jobs !ol.a! annua !;ayr'oil i:s S4.743A~0(} S5,728 ~40, S I3,505~654 ypes of'joa)s create<i ILsr thc.iob tides arm rmmber of position,s : each: ea~egor) th;at will be emp o~,ed ~;i: the ~5 Provide ~, er~:~ge wage ~k)r eaci~ category !:~egiop.,a} ]:'ir~ance Regic- w~l Deve op, ne ~ta~ :Ma2ager ='" RegkmM Sales Consuham:s 2 Na[~ona~ Acco,:m~s Sacs, Co~sa;Ir~m~s 10 Tool Rcp~dr ~ L,iei~t 5 Br'arK:h I:,mploy~es 25 Fruck Drivers 10 Ful Thn~, Warcl'~ot~se N/A NA NA ll .5; Hot~r $35k-S55k 1 1~5;3 Honr 1 1,53 1!,53 S35-$55k 530b,$45k I 1,53 z I.tour- 9.53 Hour Water ("i~is $243)00 Fire i~e ]¸4. 2. Over 50% ora; ne~.,,~J°bs fmr ~his ~k~c]litv. and will be "'~'~ led by Denton residem:s, 3, Ii'ie: reloc~Zfion of'this Caci[h? ~ill provide k:~to,,:vledg¢ based jobs s.pecificMI5' rela~ed 1o ~he [Seld o¢ rm'ma.gemeni: aim business 'equirh':~g a ntinimun~ of a bacheior"s degree. 4, ]=l~e new regional ~miilit} will ser,,e as a regionM training am:l de*.e[opmen~ center, is proper'b: zoned approprialc.? C ti;rrk'r'~ t zon i [lg:: Zen:in ~,:, re<;tfircd ~b,r' p~,oposed prqiecL Am~c~pazed var:~a, nc~% property pla!~ed¢ No ATr:[cuiiural None £L Provid(~ record o[ complJa, cc ~o ~! ¢n~ironmcr~al r~2; ilaf:ions fbr the pas~: ii'~e Year:,. See PROPER~ BESCRt. PTiON ~Oid A~Pieby Tract;,: Sel~edul:e A N:OTb: T[-~ CO~:~,,~qY DOES ~OT .R~?RES:ENT THAT T~. ,¢.~B OVE AC;B£.AGE ANT)/O R. S Q~JA'[~: ;FOOTAGE CALCU'L.A~ONS AR~. CORg,ECT~ Ar'mttai Report Page '> ~' ~' Profile of t~,¥te, ai ~mpa~, [ras:ten,~tl Company was fmmded in i967~ As of December 3 l, 20,02, tl~e Company opera:red !.!69 store, sites Iota:ted in 50 sta:tes~ Puerl:oRico~ Canada~ .Mexico and Singapor~ a~.d employed ~,7.43 people at i;hese sires, in addit[om ~:here were 2.365 people employed in various sapporl positions. !]5e Campany se~ls approx[ma~e!y 356,000 d[:t'[~rem types o.f indusrrb[ and cons~:ruct:io.r~ st~pphes in ~e~ pr'oduc~ ca:tegories. These: include approximalc~y !69 OO0 d[fferer~t: ~ypes of ~hre.adc. d: [itster~ers and miscellanem~s sup¢ies; approxima~dy 67,0(i0 chf:~bren~ bpes og mo!s; approximateR~ 29,01)0 dii!bren:, :types of metal cu~dng ~:t}ot blades; a ~proxim~eb 34 O0O dil:'fcren~ type< offl ~d ~masfer cr m~o~ems 'md -' ~ ...... d iTl~rent [3, pe:s ofjan:itoria[ and paper prod~mts approximately I 0,00O dilt:t:~ren~ bTes of e~ec:trical supplies; approxim ate~y i 7,000 difCE, reni: 'l:ype:s of 5.~eklin g Supplies (e:x clu din = gas & we Ming m acl~in eS); apPt'oxim~!tely ~:~.000 diffe:re~t tb~pes o sa, d'? :su pp! ~es ~ cnd up[:~roxm~:ate ~y 6,000 off tel on[ 'b'pes o f raw ma ter'Jals (m da s'.X As o:f Decem bsr 3 opera'ted eleven dl str'iburion centers oca~eC; il! Min n esola, kMiaBa,, Oh io, Pen~l:sy R,:a~ [a~ Texas, G eom [m %as15 ir~Eton Calilbrnia, Utah, No~I:I:~ Caroti~a, and Kansas. and also a tiicili~:3,, Ioca~=d in Tenrtessee ~,hich: i:,~; used to d. is~riN~le ;5ep x:~ [?Elect 'm yen roE. ,~? s~dpp! ms 'to ne:',~ s'mres md t;(;~ ex [s'l:l:ng stores :ilar the i' con versi om (Se e add fion;[~l discu ss On oe!~ ApproxJma~.e!y 95734, of file ComPany's 2002 :sales were at ~:'ib:ut'~ible to m~oduct'- ~mul~a'ct v,04 .;~PPr°x mateiv,. 4;.3% relic[ed to items mam]J~¢t:mred, mod fi:ed or repah'ec;. ,. by.,, e'ither the Compa:r~y'$ 'ManulS~ct;t~r:i:ng Div sio~ or ~;ts Suppo~X Services. Sir~ce Decembe:r .3 l, 2002. ~he Compa ;y has opened addJdonai store sites. I]:~is Ar:mua.~ Report, includi.l~g the sections captioned "Tresider~'¢s Letter to S~mreholde~,' "Manageme~.les Disc~ssion and Amdys is of Financ ia I Con d it ion ;lnd Res u ~ts of Ooerafi OHS" aod %~ock a~d Fi~'mnc ia [ Dam~" cOmai ns. s m~,emeo'ts 'tl:~al are Private Securities Litigation Re:~brm Ac~ of ~995 {the ~Ref~>rTM .Acf'), i'r~cluding statements rega;r~;[ing l:he expec,ed recurrence of a }ar'ge increase late last year :in expe~ses R~r genem~ se[f:-msured c~aims,, the implementation o¢l:he Cm~pany~s Customer Servlce Pro.~e,c~ (CS P), d:'~e expans bn~ of ti~e course oft~rir'.t~s at the Faste~-~a~ School Of Budness, opening of new distribu:don ce~te:rs~ :[t~e le~..eling off o f sales growlh ;:J, nd lhe variabj.Jj~'v o:l sales a:i; oMer stores, expansion o f foreign operadom~, capitol expe=Mimres, fkindil:g of expansion phns, expected[ h~creased leasing of~el-~icles and divMendis, A discussion of certai~ risks and u:ncer~ainties ~:hat could Cruise actual resu~:ts: [o diflkr ma:ret'ia}iv J?om d~ose oredic:ted in su:ch AnMysis of Financial Co~.dil:ion and Re:s~d~s o fOpc:ra, t io~s' 'li']~,e Company assumes no ob iigadon ~o upda:te either stroh forward- ~ook lng sta~:emenrs or ttm discu ss km of s~tc~ risk s an d :mcertai~t ies. :fii~e:,('C :~D oc um en ts%2 0and%20Sevings\LB R. ATLIF, iLocat%2 0Sa'tings\Tc-m:p\2002%20Am.. I/2/2004 Annual Repm-t Page Table qf Content, v page's 2-3 Pm::S! DE NTiS l A-,! ! i::[~ TO S~:IA~E~OLDER$ page 4 StXrYEAR S[:;LI,:CI'ED FINA¥CL~. DA/~A pages 5:-8 MA:NAG!SMENF~S DISC:NSSiON & ANALYSIS OF F!NANCiA], page 9 STOCK AND ]':[NAN('!~L DATA page I 0 page I ], CONSCq:[DATE~> S I:A' TMBNTS OF CONSOUDA]TD $] A]"t::M EN'IS OF ST~X:KN<)I.DF, RS ISQ/;Ny c% COMP~EilENSIVE INCOME page CONSOL[i,}ATRD 8'IAffEMEN IS OF CASH pages. ] 4-1 9 NO!Ii5 FO CE~NSOI !}AITA) FINANCIAl STATFMENTS page 20 ~.EPOR! O[ N{ANAGEMI NT i Ni.)EI=FX'DEN ]~ A UL~H'<>b:S ' CORI'{)RATE ~NF(}RMA liON LOtto i 52002 Annual fiic ://C :';Documents%20 an d%20 Setfings",,LBRAil. ll R LocaI%20Scl:tin gs",,Te rap",2 002%20An I/2/2004 Amount Report re:stdet~t~ s ,Letter to Shareholders For Fasieaa!, 21710:2 was: a belier year 'd'~an 20'0,1 bm n;ot a grea:t one, We ~,ere able ~o grr~w boi:h m,r sales and our earnings 2002. Sales b~ 2002 '~'ere $905.4 mMion:~ a H},7% increase over sa~es ¢4 S818.3 miiBo~ ir~ 2001. We co:m~:a~cd !o see improvemetnt in on:r sales g:rowl:h drxroughotx; much ofd~e year~ The hxiustrial ecmmmy was dif~Scult io read i:n 2002. we saw a :slo~ bm continxai h~p:rovemenl: ia our business fi:~r d:~e fiat six mom;hs of d~e year lhe:~, sa~s a weak:eaina h~ Jtdy. After ;Inly, sa~es siowN' gained :momemttm through November, agah slowing dow~ .arotmd the holidays; Despite 8,.e t nCer~a;k~ econom~5.~: ~.e open,ed 144 stores increasing our toia~ [o !:. 169 at vear~end. Om' nel earr¢ir gs in 2002 ~era S75~5 mi!iiom an i~crease o¢7,7% over S;70'~! mill:ion in 2001, This was made possible by increase il~ saks a:ud ~he gai]~ we had o~ the sa~e of our DW Bnsiness (see description oo page 5), Ot~r people did a. ~}ood lob cd'expense con~'rol N 2002, but we had s[m~e large unexpemed b~creases in onr expe~ses :ibr aenera~ seIF-Ns~ red c~ahnS late ia tt~e yeah Tkese exper~sss: were to cover cl~a~ges i'n clain~ estima:es From 2002 and earlier years ami ~.hould no!: be h?, O~ tober, we comple~:eci 'r.t~e sale of ou;r b[Y BusiJt~ess m The Ilillman Group We learned a Io~; aborn retaB saks customer service i,, ~be 13 mm'~d~s we owned tills business Based on fi~is, we ~lt F'as!e,~aJ couM best sen:ice :i~:s and cons~ucdon customers by applying what we klm:ed to our Fas~:enal s~.ores. W'e wanted ~o ibcua all of o.tlr ener~y a~d lesources, on h:nproving mir s'tores ^fi. er purchasir~g ~he lilY Bns[aess we pu:r a tearr~ of experier~c~:d Fas t:el~a.1 empioyees in place m. lead Lhc buSi!~eSS,,~ Fhesa Jndivk~t;als spell{ a great deaJ of time N hardware and !mnber slorcs, settil~a disPh,?s rind mcrc. handJsJ~l? preducl. They seorl ?me to u~ with many i/dens a:ha they bdieYed cm.dd ires, rove our stores. "illeSe ideas cer~iered on s~oc:k:ina a brO~der rove:lector) m o~r stores arm dZisplaying it SO onr ct~stomers m~n: servke themseN, es~ ]'".itc team bet:loved tl.~is2~o~d in, prove dtieiency for bode! our people and oar c uaomers, O~zr sales !%rce, m arkefiog departm:em, a~d firtance people msearcl~ed d'~is thrther :and concluded it was wertt~ dso ~nYestment r.o asse:mbk a lc.am and develop this co~¢ep[, inet. tinnily, rl'~e concq>t: is known as tl'~¢ Customer Servke PrejecL or CSP. Our pro.duct Gex-e!opmen[ a.r~d mark:eti:,~g peopk, a!o~g wkh 8m help supple[ers; spewer months determining which p:roducts shouM b,e reprcsemed and h:ow d:~%,' siren:Id be merchandised.; kt [l:~e !2 :m(mlhs }ou sl~o-alcl see signilkant cha~ges ~:aking place at: our F:aS~e~a~ stores, We are re-mercl~a:ndisin~ i:hem w~tl'~ an open. floor design, a broader produc~: selection, improved sisna>zc and improved store fixtures, and we are makin= system changes ~ha~; will sp~ed t~p d~e invoicing process. Sim:ce Jtme 2002, we cot~¥e:rr~d app~:oximaieiy 75 oi'o~:r existing so,res leo and open:e! approxilmakiy g0 stores wi[l:~ ibis am,~' 'll~vorabte. Based o~ !:]~ese ~esu!ts, and oar ¢ominued CO1B. n]JtlllOlH [O improve our cusl:omer sc~ice, we imend to cond;nue ~:o move Gn,,ard on this projec:L Our p~an is m conv:er~ approxi:ma[el7 80 lo.res per mon. i:h and to ope~ all ~ew stores wffh ~he CSP tk?,rmat in 2003. (}ur goal is simple: 'to position ,our sro,ms ~o :be abe best indtmtrial products distributor in el. ch of tl~e marke~s we are in, The P'astenai Scherd of BnsiBess experienced cor,~{inued succes.~ ami growd~ k~ 2002, botl~ N d:m nmnber oFpeopk served and allso in ihe proarams offered. ]h:e number rffemp[oyees ai:endJnB I.';:as{e~a} Schoo~ ol:'Business em.ri:sees ~:1~ ~;OOz k~crease,:l approx~m;ale~y 50% t}om 900 N 2001. An accekrsed tmi.ning program ['C,r high potential employees seeMr~g store manager positions started mid year an d co~dnued to .expo. tM. l:'h= school wi ti cond hue om' N,[sines. s and employee needs, [:i',r our Nsf:irma! Accom~ts gro:~p, 2002 was a good year. We added 65 new accounts, brinaia.g our total m.:m~ber oi?~m~onai accoo:m cusJ:omers to 2 Ii I. We continued to see h~pro¥,eman[: in m r sa~es gel owa't fl~roughoe'l: [m~cJfl o:[ the ye:ar..la the fins~ qt~ar~er, our nat:icmai accour¢~ sales :.::~ ~ ~;:0,4: ,,x,, over d'~e pre~,'iots },'ear, s'M ~n {he lburL}~ qLladcr :S~lCh. sa;les grew 30.g'%, In 2002, nadoBal accot~tlt sa[es represem, ed 20,7% o,four overall sales. Ou:r ciR)rts ~o s,e!i m ~overrlBl,,sa:l[ 8CCOHB[$ we]:8 also ve(y succcss, ful. Sales to ~he ?vcmmem grew 53. [% over 200!, ~n 2082, go~ emmem: sales repr<:sem:ed 1,7% of o'ur overall sales, Am'mai Report Jde:/, C,: Documen[s,,~:,~0and ~,a.aUScm.ngs,LBR_/~, i Lit ,Local Presidet~t'*s ,Letter to Shareha&lers !;a tl:~e i:t~ird quintet we sieve:ed, a new specialty sales gro[~p focused on the [ar~esl: coastmc:t[on cm~panks b'~ No~]~ Amevka. COl~Stmctio~ companies: .... Our marketing department:: cent lng.mc! to werk on product: devel, epmer~'~ in 2002; addh~g more than 63,000 ne:w po l~s io exis~:i:ngr: rjr,valuer lines. Late in 200i~ we added raw materials rot meia[s')m (mr product r~f~:er:ina, and in tim secen.d I~al~of' %~0o u,e added a seleci:i~n el: metals ~0 25 sieves. TNs se~ectmn consis~:$ oF ove~ 300 hems ia differetrti m:ater[a[s~ slmpe:s, and In 2002 ~e iv.I:rodt~ced our r~e~. elearonk bill~rxg soft',~.a:re. This ?rqkc:~: was developed i:nten~allv, sad a~lews cm~ c:~:~to:~ers ~,:> access thek acceunt inlbvm:atk~n 24 hob/rs a daw Tl~iS program has rece:k.'ed .great reviews frem o~.~:r c~sromcrs, In December pro:mish~g, Take a look a wWv, ,fasanaLcom~ ' During 2002 we pt~vchased two new distrib,J:don centers, The first is a 198,000 square foot ti, ci!i~y ~.r~ A tianm. Georeia tim!: will open in ~;he firsi quarter o,f 2003.. Tl~i's t?acility wi!l replace our e×isi:ing dis'trJburion center i~ Atlanta, w/filcl~ is ~74~000 square feei: The secorM ils a 62,000 sq(la'e tho! !¥tci!iiy ia Kitrl:~e!~el; Ontario, Tl~is facility wil~ be our firsi: disthbu, dc;n center in Ca;l~acla and is expected ~o open in '[he seco'ad qm~rtcr of'20(E~ All:l~mml~ t.l:~e resM~s we vem>ded, for 2002 were !ess d:~a:a great ~ believe the e~brts ma tYrt]~ b~ the Fas~enai team grow iSe o,ppo,~ n ties !'bt om~' employees a:ad m Creaie be!;:ter reI:[tms i"br oar shareh;oiders, 200,2 Anm;!a[ Report 3 fi]e ://C:'tDc2cum en ts%20and%20Senin gs';,t, BRATL ID~,Loca~ %20 S etfi ngs",,T,emp'~,2002%20An .... i;2/2004 Page 6 of '38: &x ~ }ear 5e!ected FR~'ancial Data (AMO{ ;NTS rN .,, ,: THC)T, ..... i:S A N ]DS EXCEPT EARN ]NG S AN]) D[ V !DEN DS PER SHA RE IN FO RMA T]ON,. ). Olde rating Reset It s Percent 199 7 Net sa~¢s 8905:,4'.] 8 10.7% S8 ~. 8~285 7~5~a ] 8 6 ~ 8., 19 S I 1 233 Gross profi~ 448.476 8,7% 412,427 Earn~ng.s beibre Ne:l: earnings 75,542: 7.7% 7O, 112 e.arnb'~s per sh[~re i,00:: ~ o - 8.7 ~ o ,92 D~vk[ends pershare $ ,05 } ~1% $ ,()45 .04 .02 .01 Weigh;ted :a,, erage ,'a,8 ~ ,' ...... 75,8:77 75,877 75,877 75,877 l:[iu an cia t .Po.~#i on December 3'! 404,248 2 09,143 67,336 ,40 54 75,877 559,0O8 S499,87 ! ~6.2% 8300,68:0 :247,8576 193.7'44 i42:,459 i06,555 17,6% 475.24.4 402/[64 ,~"!g,~,~z]~"' 25!,~34 205, 37 17.6% $42:4888 359,258 28~,960 217,646 ~65872 effeOe~ in the fin-m of'$ sl:oei~ divklem} .Amomtt h~ch~des a gain on i:he sa ¢ of t.be DPF Bush'~eSs of$5,,934. :~ A:rnoun~: ilicI~l~es a~t extraordi~a 'y gai '~, net ..... m"'tax,' of S? 16, or S.0l per basic and di 002 Annua[ Repo~i; Anntm [ R.epor[ Page ? of 5 8 Management s Dtscus'ston & A~aO;wis of b~ancial ~Smdition & RexMts of Operations (AMOI;NTS [S 1THOUSANDS EXCEPT PER. SONNE!,, COL;~NTS AND D!VID[!NDS PER: SHARE, i During .At, grist 200~, ~he Company acqdred a ]l~S~llegs which s. old packaged fasteners to the retail market (DodbYot!rseif gIY Badness). Durh~8 October 2002 ~h~s bt!s~esS was sol& 'II~e DIi~ B~s~neSs hnd sa~e~ of 82~ 6,974 and 88,5:26 appro,ximateb, 9~ ~o and ~..0% of the consol~da[ed sales of 0Kt Company) '~, ' ~" Net sa~es fbr 2002 exceeded ~;~et sales :rbr 200[ by !0:.7%, This co~ltpjjr'oa with an 8,3% net sa[es arowth :rate experienced ~kom 2000 m 2001 T~m increase ~;~ net sales in ~ "' -~ than 5 ~ears el& growih b d~e nm,',et prodac~ lin. es, m~d ~l~e acqu~s~t~o~, Ti~e growth h'~ 2002 was ~empcred by a. s~ght exisdnt .... sites less [ban 5 years o~d, arov;th Jn dtie ~ewer' prodtmt !b~es,. and the acqt~isi[ion I Cl~ 's zOO ~ 'r' ~drr~wd/was !:empered N/ tblla,w~ng tan e indicates: ( ~ ) peruen rage o f nut sales fl"om tJ:~e F'astenaJX' p~oduct lh, e an~ from l:~e n ewer pro&~c[ lines and (2) prod~.c'[ l] n es added r~ ~he ori.gJ naI hslener prod nut l;ne a;~,d the year o f b~l:roduct~o~. F~sl~n:aI Product l. ir~e ~0,67 55;.6% 58.8% Too!s 1993 ~! 1% II.6% Ctazi~g [eels 1996 :5.~% .5~5% l:[3drau!ics & Pr~eumalics. i996 6.0% 5.2% Material ][a.nd~ing !996 6.7% 6,7% ,[a.n~oria~ Supplies ]996 3~2% 2~5% Electrica! Supplies !!997 2i6% 2.4% Wekling S~pplies 1997 Z8% 2.3% Sa:l'l%,, SupplJes 1999 ,4, ~% :3,3% Raw Materials 200~ O, [:% 0.2% Retail Packaged Products* 200! 1,9% ~.0% ®]=he Retai~ 7Packaged Pr<:,dr~ct ~[ae was a:dded as a result o1' [he DIY Business acqt~isit:iorL T'his N~slness was sold it~ October 2002. T'l'ds producr~ line ha: been merged into the Company's other pro<h~c~: [iaes, '[l~rcaded tSste:~ers acco tml:ed lbr approxhnaieiy 46%, 49%, and 5 [% of dr~e Company's co~r$olidg~ed sales in 2002, 200 I~ and 2000, respect:ivety, Skes ~peued k~ 2002 contribute, d approxlmate¥ $! 8,600 (or 2, ~%)'m 2002 ne~ sa!e:s. Sites open, ed 200 ~ comributed approximale[y $56,370 (or 62%} to 2002 ~et sa]es arid appm, xh'~a~dy $21:.620 for 2.6%) to 2001 net saies. The rat~ oF gre, wff~ i~t sales o:F sites generally levels off after sites ]rove bee~ open fbr five yea~, and tke sales ore,der sims TI'to twelve months ~'2'"'~ eT ~s x..x. a~d 200 ] h~md (kmJly sa~e.s grow~:h ra~es of (corollated to tl:~e: cc, mparabl~ montk in ~:l:~e precedir~g year, and exclt~di~g I:]te impact of' the DIY Pmsi~egs): fi[e :,ftC :"Oocun~cms%20m~d=%2OSetd n gs'\L BR A'FL'[ F'", ].mca 1%20Settings\Te rap',,2002 %20 An .... l/2 !'2004 Ammal Report Page 8 "" ' ' ' oI :,8 Mop, th 2082 200,[ a .... ~ 20,.0% [::ebma%, 4,8% 16.2% March 6~0% I 1,4% ApriI 9 3% 9~0% Jul) 8.7% 7.4% Sq) tembe r ] 2:.. 5% 4.8% Novem bet i 7:9% -0 5% December [I ,B% t,4% No~e: Dai y sa es are defined as ~:]~,e sales ~br a per'led dbided by I.l:~e number:' of bus[ness days in a pel The dai}y saks gmwih faf:es above represenl, several !;r,ends. i1~e first being a downward trend in 8~e ilrs~ eieven momhs of 2001, w]tic~ re flected dt~e o~'en':dl weakening o f 'rl~e indt~strla! economy we sewice ia No~h America This tre~d reversed ks,elf fi'om December 2001 ~:o June 2002; this was pardy d~m to chatting comparisons in ~he prior year and pa'dy due to smmgcr month-to-mond~ (Lc, April to May a;r:~d May m Jtme) grm~,[h ~a[es compar:ed m 2OO~ During July 2002, t!~e daily sa:les g:rox~,th rate decreased and began ~o improve again in A.t~gust 2002 a~d September 20OZ D~rir~g ~;he fburd~ tt~arter, the dally sales g'rowth rate confirmed to gro~ l:hrc,=;gb November. and s. iil~ped in December, ~he final mo:i~h .of the year. Gross,:orofit as a percent of net ;.alu., was 49,5 ¢r¢ in 200Z 5(} 4% b ~.0~'~0 ~. ., ,.'*nd ,,4'1,4% in 20'00, Th:e :~c:tt~atie~s~ ~ rest!ileal primarib~ l~om chan~es,,, irt 'tl'~e mix of products beine'~ sold, Absent ~hc: DIY Busi~ess acquisitio~ the g, mss pmfi~: percent ~ t~t~id i~ave been (L4% al~d 0~oo~ I~i;~imr_ in 2002 a~d _70r1... resl~Ctive~y, ]h,e DIY Busi ies~ operal, ed a~: 3()% [o 32% gross margin~ 2(!02 Am?mai Repos~ 5 ~i [e :://C :~,D oc~mnen }s%20artd %20Settin ~s'd A3RA. TI~ I F",[x)cal%20 S err in gsVFemff~2002% 2:0 An i/2?2 004 Anntm! Report Page 9 of 3 8 Mattagemettt's Discussiot~ & Atmlysi:¥ of Fi.a~cia! Co,ndition & Restdts of Operatio.s (AMO[iNT'S iN [HOI[ SANDS EXCEPT PERSONNEL COUNTS AN ) 131V1DI:5;NDS PER Si JARl.eL) O~em'ti:l:~ and ~dmJnis~.rmive e×~,enses were 3T0% o£1'~et ' ~- "~ ~' V: ~r,, sales tn .~.( Cz. compare~ to oFne~ sales in 200t~ a.nd fi at~ or lower ~ct sales. ...... iq $~o~. greater.~ ti, aa five years o[,:l, andL .,~. i~h respect: to 200'>, ch an:~es in, []~e estimate o,t gene 'al insured cNms~ p~us t~e im:p~ct of ~he August 200~ acqu[sit~om 2002 a~(l 2001.. ~PavroIl- and retated costs, ii,creased at a. ra~:e wl~i¢]~ was .,gre:atc'r tl~an lhe :rate of incra:ase in r~et sal'~ ~'< .... T[~e i.m>creases in~oavrol}. and reia,,ed costs were. <hte ii, ~he ~iqlowhm:... = ir~ereases, in ti',~e ~veragc n~umber of employees: During :tl;e :fi3ur~:h q~.ra~:er of2002~ '~e eompleied I:i~e preparation ~',r o~lr Ja.nua. O' 2003 c]~;:mge h~ m:~:r general i;r~s,uranee provider, i)u:rim~. ~flis process, om' firs[ c]'~aJige in o~'er 20 year's~ vee experienced some [1~ h~ulnes~ As is: commoa in the i~d~l:str>, ~e N~.e a scl M~'~sura:~ce program ilea't: is a,dm bfisiereG by m~r insurance provider, On a periodic :basis, we are t~pda'ted as to. ~he stares - ? n. , ~ .- <)~ vtu ~am~:. ll~is uPqa[e includes an estimate b3 o~r insurance provider ~'garCling ~hc needed for open claims., During ~he transition .process:, we ~ere advised by o,ur old in:s~mmce prOv:ider of re:serve ;levels ~hich were inconsis~:ent: wi~b earlier in:formal:ion and witl:i es~:imates previo~:ls[y provided ]jl:~e: estimatiorl proc:ess conducted ])y m~tside insm'a~ce provMer imJjCa~ed a mse~'e ad~usi:mem: of a?prox[mate[y S4 mi!~ion ~,as necessary. This cha~m:ge was r'ccord{ed during thc fo~u'd:~ quarter and h~creased mzr opemfir~g and admi~]Jslra.~ive expe:~ses h~ ~o-' ~n 2002 .it;13d 200[: the r;!Ie o~'illcrease in: occupaF~c5 costs wa;s; grealer increased due: to a 14.0% and a !,4," '~'~ 'no, ease" ~ in O.e number 0:I sites [~ ~l.~t0.~ ~ and 2001, respectively. [:l~l:erest income. :net of inierest expense., in 2002: decrease([ S266 fi'om 200([~ lmeresi income:, ne:[ ofin~:eres~ expense;, i)~ "'.~.tO'~ ~ lt~e ioss o!,~ sale of [>r'opcr~y' a~d equipme:n£ in a!;! yea:rs came primarily from ~he sage of used ve:hic:les~ Thc gab, on DIY Busines:i i~ 2002 ~as f?om lhe sale of the N.~si~tess acquired h~: ~ 3 ~ .:.0{~ i, The extn~ordi:na.ry ga:in o~ S, 16, ne~: oftax, resu:l:ted lycra ~:he negative gtmdwi~l recognized on l:~e D'IY Busirtess Nei earnings grew 7;7% ~¥Om 2001' ~:o 2002 and comracted [S-2% i~om 2000 lo 200l. During 2002 and :20B I, !:l~e ~]e~ earnir, gs growth ra~c was lower tl~a~:~ ~.ha~ o['~e~: sales becml;sa of ~he e:.~tr[ier mcntione(~ impact of opera:ting am] a.dmii~istrafivc costs~ The g:rowih in r)et earnings ir~ 2002 res'ulted primarily from in, ores!seal mmet sales ar=d I}om the ,giin o~] tl~e sale, oftl~e B~sNess, Tl:~e comr~lction in ~et ear!sh~gs, in 2001 resulted prim:ariJy from (I)lower net sales grow'ih C2)the decre.~se in gross I~mrgin percentage, cm~sed primarily by changes in prod:uc:~ mix, (3) ~he decrease in ~:he gross nmrgk~ c~ollam generated i~ older s~ores due ~t> decrees, cs in net sa es, (4)t:h.e ~l,ddit:i:onal expenses .of s~ore si:lc openings (see eom:men, les earlier), (5i the added impac~ of h~creases in utility and lleglhh ,care co:its whc~ compared t:o ;he same period in 2000, a:~d (6):tl'~e increase in d~cp~ciation expense assoCia~:ed ',v~,.a. ~ddmons of prc, pert:y' a~d eq~dpme~}l, most notarial3 suftwa:re and ~ard~'are tbr I:l~e Compal~y's ma~lagemen[ i~:~::l"on:nafion Pric:e deflation related to certab; prodi,~cts negative1> i,mp:ac[od: net sales in 2002, 2tS0 i;, .m~d 2000., Cki.tfcal :lccounti~tg ?olicies' 't]:m Com:pa]~y's esfim~;l~es re[sled ~o~ certain assets, a~d l iabi!ities am an [megrn] part of the con sol Jalap:ed fi nan ciai stalem ems, These es'tim ares a,[e cmos idcred critics ! ~:o thc ,com~s olidaled financial sm~e,m ems bec:mine ~:hey .req~d re subjective aT~d COr~3 p !eX j~dgmen[s. file ://C:~.D:oc umert ts%20an d%20 S em r~ gs d.,B RA I L I~* \L cc,al %2 0Se!l~ [~ gs~, [ emp',2002%2,0,An .... [/2/2004 Annual Report Page ! 0 of 38 ,4]lo~mnce tYr dciubi, l'ul accotm!s This rcscr-,~e :is li:~r acc,oums r:ecei~,,'able balances ~ha~: are p~ten'r:~a,~7 um~c~lk~fib~e, The rece~vabk wrke.,of~5,, The analysis includes tl~e agi~g of~cccams rece:Jvabl:e, [he fi~m~e[a~ cOr~d~[km [:~f a cu:stCm~er or incl~s~ry~ and ge:l~em[ ecc~'m,mk co~dk~ons Mf~,~ao, em, en~ belkvcs i:he resuir:s could be matedaJiv d~[':J:erei~ ~f hk~:ork,,a] lr~nds oi m'~ u n ~ [? ~r., n d.s~ I l~ ~n a!5 s,~s :~r~ c! ude s m~ en tom7 k ~,. c~s, p!:~ys~cat m ¥'en[c~, cou ~ ~s~ cyc k court t a{}~s't:men!s, ~]~e ~'~:at~,i~e o f the produc~:s arid tlicir inherent risk of obs:c~esceace, tSe ~ross margi~ of ~he !~ro&,tc'L, and the on-lnar~d (~u. an~: ties :re[at:lye a'~ the saks !~s~:ory ]})r tl~e produ:c:t,. Ma:~:~age:men't believes ~:1}~: resu!~:s Co, u~d be :mai:eriailv d~:ftYmm if h~s~r>r'[ca! 2002 ,Ammal Report A:rmua~ Relx~rt Page Mam~;gemet~ t'~,~ Discuxsio~,~, & A t~al),sis ~' FMa~'tcial Conditio~t & Resttttx q/'Operatiot~s {A MOL NIlS IN THOUSANDS EXCE PT PERSONN E L COUNTS.a~ND DIV ~ DEN D S PER SI b~RE 3 n:e;~ds do no.~ reflect actua[ results ~)r ~:f' demanc~ for ~he Company's prod~.m~s decreases beca~se ofeconome or com~etitNe: .[tcaLn m~sm'm~ce reserves = llds reserve is faf Ncurred bm not reposed heaJ~h c!ah:ns:, Tl,e ~eserve is ba.se([ o.[} a~ e×tema[ analysis t:ff ~:he Compan>'s his~:Orical claim reporting trm~ds Management believes the results could be niateriali5 (h[;i~rem if h, istorica! trerlds do not reflect ac:~ual reslllts. General in stmmce reserves .- Tbs reserx~e Js ibr general c b]ims relax:ed ~:o work er's cam per, s~:tG)n, properly a:t~d ca;sua)ty trends Managemem believes ;tl:~:e results couid be ms:eria!N difl~re:r~t if h~sto¢ical: trm~ds (k:'~, not: re:Beet actt~:al results. (See z.}[}~ $:17,8 l, 9' :200 i $9 i227 2(}00 S38,253 ]'be 2002 dec:re;~se m nec gasl~ provk~e~l by operating ac:~Jvifies ~,as primarily due to d:~e increases in inventory continued i,lllp[elliel!tatJori O~'[lle C omPax~?s "CSP' Prc~jec~ ~discus~;ed below), l'he 2001 J,~crease in :~et cash provided by opera~:'h:~g activities was primarily d[:~e ~o l:lm dec~ease in cash needed aa fund trr~de accounts receivable arid i~wentorv lower sales gr'owlh h'~ 200 !: ilurirl~, 2002, tl~e Cc~mpany'~. i~wemo, ry !evei increased b)$64,556 {Or ,~'~ qo.: ....... ~ ~ ~CS P' :imp ~em:entatio~ a~:td {3 } higher slack n:g I c~e Is in lge Company' s distribmi on cent:ers, DurN,' 2001. tl'te Cam pan v's invem:or} level Ncreased S9,638 {or 62%)Iiom Dec:ember 31~ 2000, [)ming 2002, the Comps~) beg:an i!s CusK~mer Service P'm[ect (CSPi, 1This vary 'l:rom: store to s~or'e, ~l:~e []:tvemt.~% s!oc:ked: m~,de~ a CSP [~>nnat consis*s of'a co:re stocking ~,~ve'l er appr°x~.~:~teb,," si:ores conve~ed, have ex perienced i~'~creases in their i n~.,em:oo, levels as tl~e} J:il j o!!:t ~Se: prodt~c~: selc cfirm, New scores, prior to:, ~he CSP, q:)pc~:ed wid'~ approxhnai:el> S2,5,000 of h:wentory per Mca kin, and wotdd grow ti-ds amom~ to ~t~>pro:xJm~l:ely $50.OO0 afl:er operating fer ~:~ elve montt'~s. On December gl. .7..;( ~ ~_)Cp ~he Compa~:~y I~ad ~55 s~:m~s operating under: d~e CSP format This mm~ber consisted of 75 exisling sCores an:d 80 new s[ore:~.: spprox:i:mate]> 80 s~ores per mai}th xmd ~o open al} new stores wi~:h: the C:SP f0rma.t begmmng tn 2003. NeC cash ~sed [~i ir-vesting a:c:thd'cie:s was; 2002 S4T007 200 J S60,648 2000 ~3~300 2002 decrease in net cash t.:sed in investing, activities :resu!ted p qmar ly Erom [be sale o£tl:~e DIY B~Mness. The 2001 Anrma! Report Page 12 of 38 Jrlc:"ease JB 1'ac!: cash ssed k~ irveesi n~a actMdes resuIted pr'[ma~il)' l¥om dm purchase of[he D]Y B~siness an8 ~:rom tl~e increase Jr) ,marketable secmSdes, The Company' i~a8 !~.m~re commim~en'ts for leased [~[c~ ~des a:na fbr ~eased vehicles a~ December 3], 2002, 'Fhe Company ha8 86,533 of ]ong4erm debt re~ated ~:o an h~d't~strisi Revenue Bm}d (1AB)u~: December 3 [. 2002 and ~0O]. and had ~m Io~g-tem~ h.ku,e coa~.~ac~t~a~ cash oNigatio~t~s rgla~ed to t!}e Commiime~ts are a.s [b!~ows: 2003 2004 2006 2000 Facilities S33,95! !8,268 9,534. 5,702 44.6 Vehicles [2,55}7 8,[82 4.199 216 ~. IRB 6,533 .......... 6,533 T,~at $.53,08i 26,45} i3,733 5,9([8 6,979 The Compan? has a lelter of credil: isstaed on ias behalf t:o its it~sunmce cartier. The ~Tnture commerc, jat. connnim~ent: rela.~e,d ao file iet'ter of credit is S3,969, See r~otes g arm ~ or the Notes to Consol ida,:ed Financial ;Sta~.emen~s For add tic,;r~a} inJb ~m ti :m relax:ed k:)ibese ob~at~:ons a:~M I:c, mzr currem: line of credit 'I]~e C'3m pan v pa;id an mn t,~a i d i~ Mend m!: $ ,... ........ %04..: per sl2are in 200 I, and S..04 per si:rare iii 2000, c,! [)~c~: ~b~r ..~1,2002, tire Compaa¥ ~md T;i'~e Company e:xpcc~s [o recur appm:ximalely S38:,000 i[~ total capital expendimre:s in 2003, ,consisti:~g c~f' a~pr:oxi:mateb $7,000 for manuf~c:mr'ing, ~'arehouse and 2(!02 Annual Report 7 A~mual Repo~ Page: 1.3 of 3 ~ Maezageme~t's DL, cussw~t & Am?lksis of PTnancial G'mditiot~' ~ Results of Operatio~,~,s MOL NTS iN TkIOUSAN D S EXCEP'F PS BSON NE[~ COUNTS A N D DiV!DENDS ?ER $ HARE. ) packagl nE eqt~ipment a~d :[:acil;tk, s, approximately ST000 fbr she] v~ ng and re [a~ed st~pp!i es for 1:be Corn pa]~y's "CSP' approx i ma:te, ly %8,000 ~r w:!~ ic~es '[l~e cap/m[ expc:r~d ~tm-e s fcc vehicles, w h ich rcprese~t~ed a: sub~mrdM portion o¢ ~he tom ~ atno~il~ in pr!or years, rcprese]~ted a sraM!er podion b both 2002 =nd 200~. 't%is decrease ~om earlier years is a direct result increases iia~ the number of veMc!es [eased a.s opposed to, owned We expect; dfis to ~ect~ in 2003:. Manageme]}~ ;anticipnte:s. Funding its cnrre]~ expert.sims pla~s ~vid~ cash generated ~rcm operatio:~!s, fi:om avai~alo}g cash a~d lhe Compan> plans to comim.~e openi~g adc tiot~a[ sites in Canada, Pnmi( Rico, Mexico, and Singap,org I'l~e Eompan> is exposed ~o cet'laii~i ma:rke~ risks rT?'om changes in, i~[erest raCs ~nd ~;reig!~, c~lrren%' cxc]m]T~ge ra~es, Char~g~s these market risks as follows: ~ li!~e bears :intere:st at ,9% over the ],,!PER ra.[e. F'oreigr~ Ct ~rency EXchange Rates ~'"Or(:igf! c!!r!Tellcy l~tiC[t.]alii¢,::i!lS, ca.m~ a:ffCat ~!;e Compar~y's ~el invesm'~en~;s and es:mings denomh~ated i~ c~ge:ncies. The Compa~y's primaO, cxcha~ge rate expos=are is: wi~h t]~e Canadim~ Company s estimated ~et earnings exposure fbr Fo:reign cngency exchange rates was 2OO,2, Certa#~ Riy~s a].td Certail:~ sta~emel]ts in this Annual Repot'g, in the Co:mpa]~y's Armuai Repels: on. Form }0-K fl;)r the :i'~soM year em:~ed December 31, 2002, in fim~:re filings by ~he Company wlrh ~he Securities and Exclm;~;ge Commissio~ ia l:he Compa;~)'s press re and in om! slatemems made by or with approval of ~he Company's executive of/Scem, co;~s:t~'t~;~e or wi~[ certs[[tree !ookJng smtemem.s'~ under ihe Re~bm~ Act:. ]'he lbllowi]~g fbctors am among tl~ose lha~ couM ca~tse ff~e CompmaY~s actual resl~lts to difiE'r materially t?om tt:,ose predicted in sucli fom'ard4ooking s:mkm~ems: (i)an upmm or downturn i~i. economy could hn pact sales a* existing store'.-4 an d i:he mi:es of new s~ore openings and additions o f new emptoyees, ( upmm o:r dow:arum in lhe economy, or a Ch:ange in prodt~ct mix, co~id impact gross ma'rgin:s, (iii) :a cha'Ege, O(:~m 1orojecle& in lhe hr!tuber ofma.rke~s aNe to support Rm.,:re store sit.es couM impacl ~he re/tea oFnew store openings and addil:io~s of ne;w employees, (iv) !:be ability o f tSe Co~ pony to develop Woduct expen:ise m tl~e store levd. to identify product tines that corn plemen~ exis:ting pmdnci; Lines, m [ran spo~ ~J~d store certain !~azardot~s modt~cts and m oiherw~se increases or decreases in r'Sn el and utility cos~:s could impact dissrib~.u:ion a~d occE!:pailcy expenses of ~h e Company, (vi) die ability of ~:he Cornpasy to srtiggcss fu I ly at/tract .and ret~[]~ quaiified pcrso]me~ [o staff ~j.m Cemp~my's stores cotdd impact salies a~ exisd~g slores and the :rate of ne-c, store openh:~gs, (~,ii)changes in governmen~ai regu!atio~;s related to pro&mt quality or produ, c~ sou ge traceab [lily ecu Id impac~ the cos:t re. th e Company of reg~ lamry comp]i a~ce, (viii) :i:nclem ent we a~h er impact: the Compa~.y's distribution .~ct:work, (ix) [bi:eign: ct~rre, ne.y fiu~trua:rior~s, changes in ~m:d.c relations, or flucmadoos the ~eiadve strew[gib of fore. ig~ eco~>omies could imp;~ct ~he ability of ~he Company ~:o procure products; overseas at compe:t it:i ye pd cos a~l.d t/~e Co~]3 pa~l:y's sa les, (x)di SrUl)t io~s caused by 1he i:ml~[eme:dat[on, of the Company's managemem inlYrma:~ior~ systems in [?asm~cmre <.odd impact sales, (x i) Changes in thc rote: of' new store ope~ings cotdd [m pac!; expendi'mres for compute~ a~d dher cap~l:al: cqu[pm ertl, (xii) dism pdon related ~o 'tl~e "CSP" impbm cma[icon ecu of dm Pm. icc[, a~]d (xiii) ch ar, ges in dm availaN~i¥' of s:ui~able land and buildings could ;imPo:ct expenditu:ms for ~dditiona owned ~ocai[ons which ho=se o~r stores, Duri]~g 2002, d~e Fhq=ancial Acco~mdng Standards :Board (FASB~ is. sued S'tai;eme]~l of I:;'i.rta:~cia~ ACcoum S!;~;da]:ds (SF'AS) .hie.:,, (...~Docm,]ents, ~z0a]~d ,, o~0S,.~I.mgs ,LBR,~ l, LIF,Lc ~al ,,,~.0Settmgs,, [m]~p,,~O0.~ 2'o~;0,-\[~ 1./2/2004 .A.n, atmi Repot{ P.ag¢ I4 of 38 would o'~[y need '~o be 8]sc!oscd, TI~e ~dop~km of both SFAS No. 1,46 al,~ci F~N No, 45 in 2003 is no~ e:xpec~:e:d to have a signi:lScan~ im pac~ o~ [[~e Corn pany s l~[a~c bt c:o~dit[o~ or :resu~:s of operatian~: 8: 2{)02 Aam~al Repor~ fi .... [e: '?C:~' i')o cm~e nts%20a ~td % 20 ~ e!ih'm <4~ ~ ~ ,_~ ~ ~ ..B R ATLtF'~Locai%20 S etl. ing s\,Temp",2 002% 20 An.,. l/2:'} 0{'14~ Am:mai Report Page 15 of 38 Stock & PTnancial Data The Company's shares are ~:mded on The Nasda~ S~ock Marke~ uader d~e symbo TASW., "[he :folio'whig robie se~s 5~rd'~. by q~a !er, d~e ]fi~h~ and Iow close.ne._ sale price of ~:he Company's s~mres on The_ Nas;daq S~ock Marke~ for "r~,}[L.,:'"~ a:~d 52001. 2002: !!iglt Lo~, Firslt quarter $38 84. 3 SecorM quarter 43.35 36. i 5 Th ird q Barter 4 [, 8 0 29,,!9 I':Ou fl:h: quar~rer 39,39' 26.6 i First. q~.amer $32.03 24.19 Secoad q~a:r~e"r 36.50 24.50 ll~ird q~a~tr-r 33,95 25,24; Fo~.~rd~ qua~er 3373 27,~2 As of Febrtmry 3~ 2003, 8~ere: were a:Nz~J'ox ima:tely 1,800 reco, rdholdara of l:he Company's Corn mort Stock, A $05 annual dividend iser share was paid in 2002 a,nd a $,045 annaa.~ divJde:~ad [x:r share was paid in 25001, ()~ Ja.ms$O' 21,2003, Company aimommed a S,06 a~m,aal d iv:idenc~ per s~are to be paid on March 7, 2003 to shareholders of record at i:he close o f' N=siness on FeNx~:ary 2!, 20:03, The Compa/r~y expects afha~: i!: will co~fim.ae to pay comparable c:ash dividends i~ tJ~e ~breseea!ole future, provided ~hat a~y flt~ure detennlnadon as ~o payment of ~ividends wi~[ depertd upo~ the fir~ancial co~didon and r"esu !is o! operations of fl'~e Company and audi other l:hetors as arc deemed rele~ani 10y [he board of direclorJ~, Selected Qua'rt~er!y .Fit~aitcia[ Data (t t~ m:tdi~'e4) [ l{OI, SA NDS BXClz, v ~ PER SHARE DA'FA) 20f)25 , .~l aat~..,~ G~o&~' pr~¢it Ne,t ear~ting,~ F irS~ qua.r~er 582 i 4,582 ~06,,5 ? ? [ 7/705: Seemed q. aarter ~ ~ ,~, ,484' I; ! 5,485 ~'"',.: t, 831 ;~ ,29 TMrd quarxer 238,086 I17,069 19, ~ ~ 7 25 Four[I:~ quarter ~ 19 28;6 ' r,9 'M ~ ; 6 889 Tota.~ SgO 5,43 8 448,476 75,542 ~ ~00 21,t'(H: Net 5'ates Gr'o.~,~' pret Net e'arni¢~g,; Fh'st quari;er S203,374 ~ 04,555 20,739 27 Second quar~:e~ 207,442 i 04,,6} l ]9,0~ ;8; ,25 Third quarter 209,397 I04,774 17. ,00~, ,. t( t~'~l:'~ ~(mrt:er ~ 98,070 98,46? 17omi S~S ~ 8,293 4 ]2,42? 70~ [2 ..92 inclu, des an exr:raordin aW g;ai~ ~et o~' tax, o£ S? [ 6. : garni~gs per share amo~mts do not e~N:al l:tm iotal a'Irma[ earnings per si~are due ~o rounding di:f~;:-ren:cea,. fl ].e ;//C 5:5'(Doc rinse nts%20and%20S ¢ ['tin g sS,,LBRATL I F';Lc, cai %20 Sctdngs' T¢:mp"~2002%20An .... t/2/2004 ~te//C'~Doc~m~en~;s%20and%20Seui~:~gs\LBRATI IF',,Local%20Setfings~lemp'~,2002%20An~.. !/2/2004 Annual Report: Page i! 7 of 38 COnsolidated BaIat~ce Sheets DECEMBER 31~ 20¢2 & 2001 i,AMOUN TS ]N THOUSANDS EXCEPT SH ,~ R E [NFOi~ MA TION,) Cast~ a:xi ca;s5 eq~,livaleots Ma:rkecable s,cc:~rit ['fade accoun~:s ~eceiva. b[e, ~e~ of al Iowance ~br accolmJs of $3,5:43 and 83.474 :respec~i~el>, ~n ve~tor'ies Refu nd able i~x;om e taxes Marketable seo~ri~ies Property a;X! equ ipme:nt, less accm:n t~l ated depreciation (}~her asse~s, net To!al assets 200t $ 14.,296 ~7,264 7 (I.67 ') ] 'J ~8 i05,553 !0~,356 2!7,262 i52,706 5,868 4(696 I4,607 I3.961i 1,838 15,340 9~37a Pi4,252 12]:607 2,930 3,022 Liabfl#ie,~- attd Stod,:h oh'ters' .Equio~ Cm-r~,nt liabi~ifi~,s Accrued e'xper~ses Income tax payable [ e~erred income tax iiabiii~,~ Stockl:m!ders' equity: Pm~kn:ed stock Common slock,, ~0O~000~000 slmres amhorb~cd 75,8 7 7,376 shares i,:st~'ed Additional paiddn capilal Retained cam. in gs A. ccum[:&~ted or,er comprehensi~m ~oss Tomi stockholders' i'otal liabi[i:ties and srockh, olde~s' equi£y 25,783 20, i00 2:1:2g: :i 7,973 :2 47,(ii64 40,56 i: [2,073 9,795 759 759' 7,472 4.0~44 493,693 42],945 (2,05S) 499,g7 ! 42:,L888 $ 559.008 ~S '~ ~ Ti B,: ACCOM:P'AN ¥1 NG N t.¢1 :'::'~ AR J':: AN J N':f'EGR/:& :PA:RI OF FJ ::l:::: }:iNA:NCLA: STATEMENTS. fi~e:,?'C::Documents%20and%20Set~h:~s'd,;,. J:);R ATI2:F'~I oca!%20Setti'~s';.Temp~S200v%?0, =. ~ ..... ,\n , t/2/2004 Report Page t 9 '~'~ ~x CO~solidated Stateme.ts of Ear. i~gs (AMOUN:I'S IN THOUSANDS EXCEPT EARNINGS PER SHARE.) YEARS ENDED DEC:EMBER 3, !, 2002, 2001, & 2000, Net sales Cost of sales Gross profii £)pe rai;in g and adm i n is~rat i've ex Lo,ss en sale o f proper~y and eq Gain on sale of [,)~Y Business Oper'ating h~come In[crest income 2002 200! .2000 S905,q 3 8 g 18,283 755,61 g 456.~962 405~$56 367.500 448.476 412.427' 38:8. I ! 8 334;875 300,696 258,56 304 339 162 I 19~23 i ~ 11:,392 129,395 1,976 Z242 2~035 I!!;ami.ngs bdbre income ta×~s and exm~ordinary gain }2 [ ,207 ! [ 3,634 [3 l,g30 46,38 I~ 43,522 50,700 Net ea~ ing;s before extr~.o rdin aO.' ga i~ Exlraon~inar5 gain o~ D4Y ;B, usit~es.,, acquisition, ~e'~ of tax 74,826 70, i 12 80,730 7!6 -= 75542 70, I 12 80,730 Basic a~d diiuted eamlngs per share before extraordinary ga:in Basic a~:([ dil=ted extrao~tina:~T gah~ per simre., ~ei: of'tax S ~99 .92 1,06 .0i ............. 75.8.77 75,877 75,877 Basic ~:m d diJ~d e~mings per share Weig}~ed as erage shares om:sia~d b~g 'TiiE AOCOMb'\N rING N'<;, n=;5 ^ ~[:; A N [NTEGRA[ PA RT Or: 1! I!:: FIN^ 2002 Annual Report ~e://C:\D~ctIment:s%2~a~d%2~Settingsx~LBRATL~:F~L~ca~%2~Settings~`Temps2~2%2~An 1./2/2004 Annual Report Page 20 of 38 Consohdated Statements Gf Stoc~hoMers EquiO,', & Col~{¢rehensive D~come (A!MOUNTS !N 11IO[ rSANDS~} 2002 200[, & 2:000 Paid-in Reta#~'ed COmprehensive 999 December 31, ]: DivMe~dS pa~d in cash 759 4.044 277.553 (-1.96 ! 28 .96,0 Net ~m::&~gs fbr lhe ),,ear Tra~sl¢:ation adjus~meni: 'I oral comprehensive income. .--- 8 (L 730 (397} (;397) [¢/alances as of December 3 I, 20{)0 DJ,,Jdends paid in ca:s!! 759 4.,044 355,248 (793) 359.258. ................... (&41 ~ ) ......... (3,,4 ! :s ) Net cam in.~zs )%r the ,:ear '['otai comprdCnsive i:r~comc 70 i ~ 2 ],o67) (1 ,o67} 69~045 :Ba!:a:ces as of December Divi<le~d$ paid il~ cast~ l'ax: bencfh from exercise of 75,877 75:9 4,04.4 421,94.5 ............ (3 794. Total; comprehensive income 75,542 '75,542 (1935 ~lr.l> 7.57, 34 9 Ba[at~ces as ol December 3;1. 2002 ~q 87', S 759 T472 49:3.4;493 (2,0531, 499.871 bk': ,,, ¢C, ,, ,Doctm~,ems ~,~={)m ~ ,.o=0Scimza. s,,I~BRA. Tl.,I F xLocal ,~.:0Semr,gs ,Temp ,~00~..,~=£.\n... 1/2/2004 Report Pa~e 2~ of 38 12 2002 Annua! Repo~i :fi [o;//C :,~Do,¢t~:me!2t s%20and%20 St_'ttlng:s~% B RATLI F%o,c,al%20Se~:tin g S',T¢ nxp~2002%20,AB .... 1 ,?2/2004 Ammal Re?or~ [>aa¢ 22 o£ :3~ COn,solidated Statements of Cash Flows { & MOl rNTS IN T~IOU SA H DS } YEARS ENDED DECEMBER. 2002' 2001 Cash Iiows ~'rom operating acdvkies: Nc[ ea:nq ir'~ gs Adjt~s[mems ic, reconcile ne~ ea~n~s m act cash provMed by operadng sc:tivj~ies: DeprecJakm ol'pmperty and, equipment Loss on sa~e of'property anc[ cquipme~i: Gaia oa; sale o,f DIY ;B~siness Bad debt expense Def~]:re'd income mx:es Tax benefiSt t?om exemise of stock option, s O~aag:ss h~ ep-e~at [~g asse~s and ti:abilities, net o[ ac;4uis kion and! sale of tide D[Y Business;: 'llmde a. ccoums receivable Oliver curren~ assets, Accounts payabie Acm2~ed expenses N et: cash provided by opmr:at h~g act:iv[des Caslq flov~.s fi'¢~[:i~ iavestiag activities; Pu r¢l:~:a,ses o:[ bus [ae:s.s an d propen:v a~:i d eq~ipm ertl:: Proceeds !from sa~a o:17 Property and Proceeds from sak of DP¢ business Net ks:tease in :marketaNe Decrease (increase)in other assets cash used i~ investing activities $ 'ss 54'~ 70, i:12 80 230 16,94;5 114, ?,!7 ] 1,757 3'04 339 :162 (53}34 ) 5, ] 89 5..4:53 4,496 3,,428 ....... 67 220 220 ( ] 3,025) 6,232 (26,053) (71,738) (2,605} ( ~ ,893) (4,407) (1,959} 6,949 (1,835) 573 5305 1,630 (4.,.326,73 ¢~9 ! ) 62S 7,8 9 91/72'7 38,:253 (42,683i (45,342) (36 72% 2,693 3 994 6.633 I 4,93,5 (21 ??O) (117,635} {i2282) 25 (9) ($:2) Cash flows fi:om finaacing activities: ~ ay~aent o~TdiMde~Ms N~t gasB ~sed in financing aativides EfiL'c! e! ex cha. rl ge ]:ale c:h a~! ges on CaSh Ne{ i~cmase (decrea.se) in cash and cash eqnivalents Cash: and cash equiva[ems :a beg hming ol/year 1'~ te..,,, C. ,Docun,ent.,, o~.(';aad, oz. 0Sumngs ~I.,BRA ]LI[ ,Ix. cai ,,,o~ 0S.. tt,.,na..~ 1 emp ,=00~..>~o.= 0;-\]~ ............. ., $ I4,296 47,264. I9,7!0 Suppkmer~La,[ disclosure o£casl-~ flow i:nforma:Iio:r!: Cash paid dm"ing each yc'ar lilt: Ja ¢Ol':le taX:L'S $ 46,,573 4 i ,682 50,072 Ti!I: ,ACCOi'~:PANY:NO N (Ytt::S A:R]:: AH :N]'E¢:,BAi PAR]' OF i'I::E :ENANC1AI 2:002 Am::t~a[ Report: file:,L'C' :':Doc uments%20and%20 Settings'\LBRAT LI F',I_oca. I%20Seitin gs':Temp:2002%20Am., l/2/2004 Annual Report Page 24 o:F 38 J%~tex to Cot~sofidated [Tnancial Stateme~,~ts (A MOI.?NTS iN THOUSANI)S EXCEPT SI LARE AND: PER SH,~tRE DATA,,}: 3?t~.mmaO' ~!f ~S'igngica~t ,4c~ esuttting Policies YEARS ENDED DECEMBER The consolidated financia~ smiem ems in elude d~:e accoums of Fas~enal Corn par~y and its wholly-owned s~bsidiar]es, [:astella} Company Sec'vices, Fasten~ Company Purch,asi~g, F.as~enai Co~pm~y Lea. sing, 7Fasie]~a~ Ca,reda Company, Fastena[ Mexico, S~ de R,], de CV,, I;astena[ Mexico Services. S. d;e R,L, de NE C.V,. and Fastcnal SJng4sp, orc P.T,E Ltd. (co!!ecdvely rcfc~cd to as t]~e Company), Ali ma'~erial in~ereompan? balaa~ce,~ and'~:~'ansaetions have been Revemte Reco,gt~itiot~ end.4 c'cam~ ta Receivable s:l~pped m o:r p~cked up by c~.~stomers, A. ccourr, ts receivabIe ~re stated at ,Ail financial insmm;en'ts are earriec~ at amounts tl:~a.t approxim~'te estimated 1'2ir v'Mue ('.Tas~i Eq~ti'vale:nts ~::o~ pt~rposes ot: the C.c,t~s olidated Sm~eme '~ts of C asl'~ F~m~-s ~h e Co n~p~ ny' considers a]l high[y-!iq~id den i t~slm ments l:nventori:es, consisting oF merchandise held liar resale are. st~qted at ~i~c: km.'er of cost (first in, Iirsl: ot:~: method)or nlarket, securit ies as ava ib~b[e-for-.sal e. A vail ab] e-fbr-sa le sec~rities are recordt~d a:t fair vai u:e based ,on c~re:r~t ma:rket va] ue comprehensive income, a:Bd are re. ported as a sepa~;a~e cor:nponen~ of'stockholders' equity until reaiixsd, provided d~a! a decline in ~he mark:et vaK~:e oFa.r,y availableqbr-sale sec~M~y txlow cost that is deemed c,d~er than !emporary is el:rerEad to cannings res~d~ir~g i~ ~he cs~,xblishme~]t of a ne~- cost basis ~l)r: t!~e sec~Jd~:y I'he amortized cost approximatted ....... the fair val~e n,f a. vailable-fOr-saIe debt sectMties as Of' December 3i, "'f'.~,.~Oz"~ nr~d ...... ')n, lil.~ [ to? e try a t~ d Equip met~ ! Propert'~ ~nd eqt~ipmen, t a~'e s~.aled at cost. Depreciaiion o~ 'bt=i[dings and e<N:ipment Js provided Jbr u.xl n= ~he s~r'ai~q'l 14 2C'C2 Annt~a[ Repod fiIe://C :'~Do ctm-tentS%20and%20S, e~tings~J..B R,A TLISF'5 f. oca]%20S et'tin gsWemP'~2002 %20 A n_ 1/2/2004 Pag~ 25: o!' 38: ~%k~tes tv ConsolMated Financial S!atements (AMOUNTS IN T~ [OUSANDS EXCEPT SHARE AND PER SHARE BATA,) YEARS ENDED DECEMBI'~R 3, I, 2002, 200 I;~ & :2000 Other A.~'s~.~' and Lonfi-Lived As'set~ Other assets co~:~sis:ts o f prepaid sectl:rity deposlis, goodwili and a acm-compete agreement!: Goodwi!l rept~seai:s the excess ofi:]~e pklrchase price over the fair vak]e ofna asse~S acq'aked. Begimfing in 2002, .goodwill a. mc~rti:x:~lbn was discontim~ed in accordance with SFAS No, ]42 Goc~i~vil,,', ~'dO'&er h~,~<~%~&[eAsxet~', Tofa/goodwill amo:rtia~tJon costs, were S153 per yea' i~ 2001 asd 2000 ']'he nor>compete i;s amod;ized on a straigi~!.-fine basis oYer 15 years. 'lo,ali non-compete amor~izaion costs were S67 pep year in 2002, 2001. and 2000. Goodvd!~ and otl~er ~asgib!e and identifiable i~ta~gible !on;g-lived asse~s are tevie~ved wheneve~~ events or c~ang, cs in change occurs, ~:o determine th~ the unan~or~:ized bahmces ax~ rcc;overabk, Recoverability is mea.snredi by a compariso~ g. oodwi~}, by also k~oking a:t a.n adverse change i:n lega! factors s~: ti< business c}jmate4 a m:tnMtiou io a new pm;odk~:ot or services straiegy, a significam change in lile gHstolnel' base~ a~ldror n rea iza'ion of fa Icc ~,a kc1 ng egO~gs, 1:17 l]'te asSe~ is deemed ~o bo hnpak'ed the amount of impa. i rm¢~'~t is cl~arged lo earn i~gs as a part of operating and admi~istrativ= ]ess cost ~o sell 'fhe pxq:,ar'a'tion of fi2a~ciaI s~atement;s i;~ conformity wkb accom~ting principles ge~eral[y accepted in tine Unked S!;~tes of America req~:irc,s management to make c,s~in'tates and assump:tions that affec~ ~he reported ;~m~o,tmts of assets a~d lia. bii~kies an:d dis;clos,t~rc of c<mtingenr~ assets and ~iabiikies a.[ lhe date of[he financial statemems and the reported amounts of' re'verities and expenses d!trh~g the reported period. Actual rc'su~ts could d i[Ycr :[?om i:.hose estimates: i'i~:e Company is seifzinalred fl:tr c. ertakl: !osses relatk~g to medicaI, worker's c:omponsatiSo]]., a]~d ofl~r castaky iosses~ Specific stop Ioss cov.e~g¢ is provided ~k~r calastrophic clai:rr~s in order t:o limi~ exposu.~e m s~g~,A fic:as~ claims. Losses and c~aims are charged m ope~a~ions when it is probable a [os~ has been, incun-ed and the amotmt can be ~easo:r~ab[y e:siimaed. A. ccmed hisurance liabi~iI:ies a~,-e based o~:~ claims fikd a,~d estimates of claims incurred bill not reporled, ~II~.e (2ompaay has not gr;~nt:ed any s~ock: option,s, However. cetlain employees partkipa:te b a stuck optios plan sponsored by l:]le Company's :Kmmder~ Robect A.~ Kier~in, This is a shat-ehokJer spo~sored pian~ and does ~ot directly invoNe ~he Compm~y. The Company conl:in~es to apply ~he: p~ovisio~s of Accotml:i~g Pti,tip]es 13oared Opbio, (APB) No,. 25, Accowrth~g./h.r &~',,,c~ ~s~gd .~o E, 7~kyee% ]~owcv.e~; a pre, f off aa ii~.ir vahze dlsciosurc is con~.aln=d in No~e 4. Dt.~;ri;sg 2000,, th= Compa~y established a stock .appr2ciaiiol~ rights (SAR) plato D~;~ri:ng 2002, 200]:, and 200'0, 'the Company granted 8,000, 8~000, asd 20,000 SA R ~!ni~s, respeclive~y, :ruder ~:his p~an, Thc SAR till ils granled in 2000 w.s~c,d in July 2002 with a six month exe:rdse p~riod bet'o~:g ex:pJnition. Tl,~e SAR =:!'~its g~anted in 2001 and: 2002 ago ves~ approxinmteiy 2,5 5.,ear's a f~e,r grant a~d a~so have a six mon:~h e:x:ei,cise period, The Company =acognixed SSO, S[54, and $0 compensation expense during 2002, 20,0 Ii, and 2000, rcsp=ciivciy~ re~aled to lhe SAR pIam 2002 Annuai Repo'~x t5 fi]¢://C:SDoc ume:nis%20anq%20S ettings4LB R.ATLIF~Loc al%20Seitings'CF¢~trtP',,2002%20An... 172/2004 Ammal Repor~ Page 26 of 3 8 ,?ote, s to ~,onsoltdated t;)'t:tancial Statemet~,ts (AMOUNTS IN T!:[OUSANDS EXCEPI' SHARE AND PER SHARE BATA,) YEARS ENDED DECEMBER 3, i, 2002 2O0i & 20(~0 Summam., rf Sig~lifican, t ~ lccounti~g .P~;4icicx co~tiimed The (ompany accounts £o,r income taxes m~der ihe asset and hability method, U)~der tl'~is method, deferred mx: asse~s arid ~iahilities are recognized ~- ~ lS:~tu~e caroing amounts of existing assets aped liabilities and ~he:ir' respective truax bases Deferred tax assets and ln~t:..umes are measured u.s bg en acted iax fa. rcs ex po c~d ~D app[y to taxable ~come i~ ~:he years i o wh:ict'~ are expected to be recovered c~' settled, ]:he effect on det':crred tax asse~s a~d ~iabilitics ora change, in tax rms recognized i~ income ir~ 'tl'=e period that: inciudcs tSe en:actmei~t date= Ear~dngx Pet Basic: ai~d dik~ted earnings per s!~are are compm, ed by dividi:r~g net ca:mings by the wci:gbed average n umber oF sl'~ares omstanding. All common shares a~d per si:tare a.mo~tl:s have [~'en: a.~justed m ~,eg~ec~: the 2-for i s~ock spilt ezl];~ctcd in the li)n~s ora stock divide~d i~:~ May 2002. As el'December 3 t 2002 m~d 2;(}0~ ~he Company did not haxe any co[~ti~ge]~ly issuab[e Segmen, t Rep ~ rtln g der:em!:i:=]:ed t,l~e ( ompa:l~y mee[:s tl'~e aggregat ion criteri a omllned as t~]e w~,r[o~ s ope, rot io~s of ~i:~e Corn party have s im il ar (1) eco~mmi:c charao, erisfics, (2) pro&~cts and services, (3) customers, {4) dbtriNmon channcb~ and (5) regt~atory ProperO' end Equipmem' Property and equipme~l; as o{' DeCember 3'1 consists of]:i~e t'bllo~uing: De~recia~,le l~ i~t year~ 2002: 200 i Land B~:i:ldings and im provemems E,quip'me~!; and s!~eiv Consmmti,:m in progress Less accmmttated depreciation Net proper~y and e(N:ipment .... $ 9,24,6 7 X'~29 31 ~o 39 56,:093 37~572 '3 to } 0 ~ 29,306 1 I 1,079 3 ~o S 17,162 17.4 L3 ,-- I2,145 I 3,349 v?~ oir~ 186,442 (79,700) (64 835) $ B44,252 121,607 3 Acc'r~ed IL~pe. xe, t' Paymi[ and related taxes S 7,545 7,273 Bomlses and commissior~s 3,724 3,449 ins~rance 5,963 2,37 ] Stiles a~d ~ea~ estm~ taxes 1,566 !,062 ti lc: Y/C :~xDoemn. e nts%20a:r~d%2 0Senti :r~gs'xLBRATL I F',Local%20S etli~gSVFemp'~2002%20 An ] = }(~ 4 Ammai Report, page 2'7 o:f 38 O~h er 7,973 16 2(!02 Page :28 of 3:8 Notes to COt~solidated .bTnancia! Statemet,tts (A MOLiN {IS liN 1 HO U S,[ N I}:~ EX CEPT S! lA Rll'i: AN D PER S HA RE DA T A_,.} YEARS ENDED DECEMBER 3 I, 2002, 2©01 ,, & 2000 Prefe:rred s{ock t~as a par value of $.0t per share~ Ii, ere were 5;000,000 s!'~ares a([~:horized and no stoa:res issued as of December 3 !, 2002 and 2001, Common Stuck has a par valae o:f S,0] per share. There were lOOiO00,O00 shares a.uthorized and 75,8?7.,376 s!::a~es issued and o:uts!andir~g as of De,cember 3 I., 200~2 ams 200 i ~ L!~ Jam!ary 2003, [.he: L. ompany s board of directors declared a div:idem~ of $,06 per share of C,::~mmo~ Stock pMd in cash on MarcI~ 7, 20'03 to slnard~< ~ders of ~ec:ord at [he cl<::,se of buslness on FebruaD." 2i, 2003: in 2002, 200 I, and 2000 option, s were g:mmed, mad er the Rober[ A, Kierlin S~>0ck Opdm~ P!am ~o p~[~,ch ese shares o f' corn m on stock owned by rl~e Cmn pany's k~under Robex A. Kier[in. Tl~e individ uMs eligiNe m receive options included those employees witl~ three er rmre years ofser¥ice, or employed as a dis:t'rJc!: ma:r~a:ger or a srom manager, on !:he last busi~less day of December in Ibc previous yea:r. The optimus were grained wit]~ an exercise price e2ua] lo or greater dean ~hir market value on tl~e d:a~e ofgranL The stock optimus vest approximatdy 2.5 yearn after grant and expire approximately 3 years after graJ~t The stock opt:~o~ p~n was spousomd by ~hg Compo:~y's fotmder and does rto~ ~nvolve l. hc Company h ad e leered m recogd ze compensal:J on expen se c:on s isten t: w'J;~:h i:he :mefl'~odo[ogy prescribed in S FA S 2002 2001 2000 ~ i e{ ea;Tl~tlgS, a.s [~FO ~Q)rm~l r~et eamiJ~gs Basic ~m<.~ d'&at[;d eamb, gs per share Pm tBm~a basic am;f diimcd ear!~h~gs per share $ [.00 .92 [.()6 S 0,,96 ~g9 [,04 The fair value of stock optio~'~s :is estima~Led as of ti~e grmrt date u:s[ng the Black-Sc:holes ng.t:km~prici~,g mode! wi!h the lB [ 1o~. in g assure ptiom;: 2002' 2001 2000 R, isk. [~ee i n !c~3s! ra!e Expected life of option i~ years Expec:ted d:i vidend y ieid 4,5%, 5,0% 6~0% 266 2,75 2,75 0,.2% 0.2% 0,2% 27.03% 37.,66% 42.29% "[~e fair markel: vahm or opiirms ;grained i~ 2002, :200 [, and 2000 was estimated to be S6.65, SS.07. and $5.77 per si~a.rc. respectively. A summary oFsmck optiol'l ~c!;ivi;b: u~der the p]m~ described: above, by grant year, is;: 2002 200l 2000 Exercise price o f op!:ions iss~.l, cd du rMg tl'~e year S35~00 27,50 2:7.50 Oplior~s graaI:ed all:;4 :ir~g ~h e year' 820 700 1,45~ (:)pfim~s canceled since gram 192 199 388 Options exercised: in: 2002 ......... [ ~063 [n 1998 i;!l~e Company established t~e Fas~.enal Cc mpaB~' arxl St~:bsidiaries 40!(1<) Plan, 'Finis p[al~ covers ali employees of Annual Re?o,r~ Page 29 of 3 8 [he Corn:~an} Jt'l the L I~iled States,, TIle Company made I)o con~,Hbtidons to the pa~ in 2002, 2001, or 2000, Annual Report Page~ 30 cl~' o$" Notes t'o Co~solidated ,Fittancial Stateme~ts fAMO [.. NTS IN THOUSANDS ~XCE PT SH A ~B AND PER S~L,~ RE, © ATA,) YEARS ENDED DECEMBER 2002, 200 I, & 2000 .,~ o6~: tC~¢rrem' Deft'fred Tat;m~ Federai 839,346 960 40_. q'~¢~6 ' Si:ate 5,929 '146 6,07,5 S45,275 l, 106 ;6.381 2'001: Ct~rro~t Dc~erred Total Federal S .J..~ 6.~:. ;> ~,19. 37.879_._ Siai'e. 5 367 :333 5,700 $40,990 2,532 ~:3,522 2000: Current D~J~rred Federal $41,472 :2, Il 0 43,582 State 6.775. 343 7,i [ 8 l~come tax expea:~se ii~ ~l'~c acoompm~ying co~sgiida,ed fimmcial sI:aieme~ts di:i'l:tsrs I~rom the "expecte~l" tax expense as 20¢2 20(H 2000 .t;ed!erat [acome ;:ax e:xpe~'~se at th e"'ex peered ' ra£e of 35% ]'otal i;i~come tax ex:pe.r~;e 8425,422 39~7'72 46,000 3 5M9 3,'705 4,6~ 7 I I) 45 73 ,, ~d,.~g ! 43 522 The aax ef(kcts oetemporao d ~:[iemnces. l;hal !:4ve rb.e to de'l~:rred tax a. sse[:s a:ud li~ 0ii i es as oi?' December 3 Ii are as fbi[ows: 2002 2001 DeikrTed tax as;sst (iiabil:ity); inventory costing and valuation med'~ods A !:io,,vanec [:or doubt ~'u~] accounts recei v able: $ 2,4:25 2,(}20 !35'7 1.[88 '~ 'Il'~ 965 fi lc: ¥C:\Documunts ;,'~.,20and ~ MOSetti rms L BRA7 'LIF',I ocs! !4i20Set~.ingS',,Ten'~p",zO02', o'20An .... 1/2/2004 Annual .Report: :Page 31 0:['38 Fi×ed assels Other. net (1Z016) O,7951! (83) 523 No vab~at::ion a!lowanc¢ ~br deferred tax asse!;s was necessap: as of rt~ ~ S I~ , . '-: b, ecember 2002 and 200 i delbrred tax asse~:s is s[mh t:ha:r ~hcy c.~m be realized tl':arougln can'> back to prbr ~ax per'iods or ofTse.v aga. ins~: fi.m~re mx. able income, Dt~ring 2002, $3,428 w'as added to a&ii!ional paid-.in capitol reflecting the p,erma:l~em bo,ok !:o liix difference in accoun!:irtg J~r tax benefits re!a~e4 [o empbyce stock option transactions, 18 :2{){)2 Aroma] Report: file:/'C :~Docmnen ts%20a:t~d%20Settings'4., B RATLI F'~L ocat%20 S e't{:ings Ten-tp'~,2002%20A. rL.. !/2/2004 Anmml Repot{ Page 32 of'~:S:' ,Notes to Consolidated Fina.chd Statements (AMOUNTS IN T}IOIJSANDS EXCEPT SHARE :AND PER SI:lA I?,E DATA,) YEARS ENDED DECEMBER 31~ 200'2. 200i, & 2000 cqut~'i'ti~m qf lIuxin e,~ ~' O~ Augus~ 3 l.= 200}, fl.$~e Company ac~.i~ired ce:train assets of ~:wo subsidiaries of Tex~:ro~y, lac '[ [~c:s;e the ir b~s i~ess of sd. Ii ag packaged fasted'mrs to ~h e ret:si l. :tnarke~: (Do-l~-'Yoarse:~ f or Bt Y' Bus ~ess)~ .[]~e our¢ hase price coasis~ed o[:a cash payments: a'~d the assmnpfio~'~ of certain !iabi~ifies at closing,The acquisition was r~ot "maeria! fir~a.ncial st~tleme]~Is of the Con!party, The D1Y Business was sold to The l~illma.n Group, h'tc or~ Octn:ber 3, 2002. On July l, 200i, fi'to 'C:ompany adopted SFAS No. t4 [~ }~h'.u>~es.~' Combbr~ifie.m~s. SFAS No, 14l req~.[ives fi'se r~se oFti~e pm-chase meflmd oi'a.ccou n~i:~g and. accordingly, the operafi ng resulis of ~h e DiY Busil~ess we:m includecl bi the Corn party' s conso~idaed fir~anc ia [ s~atem er[~;s from ~he da~e of acq~.ds il:i on throagl~ ~he dalco f sa~e, "1' he tota~ pumh ese price was elks:areal ,~o tangible a,ssers and ]iabiiities based u~m ~he estimate of l:h:e~r ~kir value or~ file acquixirio~'~ dee. The purchase price was fi~mlized daring !he second q~ar~er of 2802,/'he final parc!~ase price resulted in 'tn:~gibk assel:s i'n excess of lhe cash paid a.r~d liabilities assamed, or negative goodwill ~ril.~e negative goodsv[i[, ne~: of:tax, ofS7!6 ~'as recognixed i:n eamh:~gs during ~he second q ar~er 0'2002 as an ext:raordinao~ gain [l~e D[Y Business w as pa rchased after a prolot~ged period o!' co~tra¢iSon; lhevetbm, d~e his~orka~ sa ks a~d earnings were Iv)l; reflecd ye ol7 ~h e DIY Bu si~ess's opeml:ions m: l:h e time k was acq~fimd Iff l!~e Business combi~mi:ion ltad t~cc:urred at the begin, sing o~'tl~e ~'especfivc' years, net:income wotdd noi: have Been macriai~y d iffere, n~: ~5rom the amo~m~s reported. The net saks from I:Jle DW Business ioi:aled S8,526 ii'om Augusl; 31,. 2001 througln December 31 20,0!. The net s,ales !?m~ r!~e DW Business rata!ed S 16974 fi'om Janum? l, 2002 rkrough October 3, 2002, The Company re¢ogniz, ed a gain;, before mx, of $5.93,~ frm~ ihe sale of the DIY Bxsin, ess rim':lng i:he fo~rt'h q:uarter' of'200Z Ope,r a.q,~;r,g Lea.~e.s t'~lm Company leases space under re.m-canoe}able operating leases !bt ks Co~ifor~ia~ Nor[h Carolina, I.J~'ah, and Washington distrJbut io~ ten tm's, its ]'emmssee co[~ vets ion ten ~er and certain store s:i~es with [nit;ia~ ~erms o f one to 48 montl~s. The Comp,my leases cer~ai~'~ semi-r:mc~ors ;md pick-l~ps under opera, ting: leases, '['l'~e semMmctor leases typica~l:y have a 36 month iem'[, The pick~,ap kases ~:y'pkal[y haves 72 momh ~en:n sad ir~c~ude ag eariy buy out clause tl:~e Cornpany gen.evall7 exercises, d~e:reby giv'h'~g the leases a~ effective ~em~ of 12-15 mom!,s minimum anmia! re?~ta!s for ~he !eased facilities a!ad the leased veSkks arc as Leased Lea. t:fd Fac#Ritzs i,'~ltfcle,~' 2(.!03 $ i g.269 g* i 82 264 5 I 2:004 9,534 4~199 13,73.3 2005 4,38'7 216 &603 2006 1 ~315 ,~,=. 1,315; 2007 a:!'~d tl:~ereafter 44.6 .~. 446 Rem: eXF,ense under ali operating leases is as t'ol!ows: ,Lea.~'ed ZOO2 S22,127 i 0770 32,:879 2001 19,826 ! 0,660 30,486 ~ Lb~e3 ¢*fCri'd# a~td file :,'7C 3,1Docume ms%20and%2 0Settings~.L BRATL IF'~Local %20 S et:t ings\ l"emp'~,2 002%20A:r~ 1/2/2 004 Annual Repoi~ Page 33 of 3 g of'up ~o S i5:000 al:, :3 ,,<~ :wet ~:he LH3OR ral:¢~ O~5~ Decem?~er 3 ~, 2002 ~t~,ere wag S0 outsta;rMin~ o~ d~e line. T~e Company' curren'tb' has a le(ter ofcredi( issned on i~:s be];a~f ~o ~:ts ins~mn, ce c~rrier, AS o[: Dec:ember 3'i:, 2002, the ~om:I Du;dng 2(30 t, !;[~e Company comp!et'ed d:~e ¢o r~stmct ion o f a new Nfilding :{'0r its Kans=s C~ty wareh,ouse. TI:~e C o:r~l;pa.n3," pnrchased ~00% ,oftl'~e ou:;:s~;:a~Ming bom]s ~;mder ~.he ~RB aZ par, I.~ add:idor~ ~o 9m'chash'~ d'~e O~sta,F~d~¢i;g ob~gai;io~ls, t. be Compa~3, has a fish1: f =' ~ ~, o. ot,~:set included in the [RB deb~ ~'greement, Accordh~gly, ~he Compan5 bas n:e~ed 'tl'~e :impa¢. 2002 and 2001 was S6,535. Annual Repod; 19 :fi I e ://C ::,Do cmr~enl s%20aad%20Set ti ng:s'X L. B RAT] ~ 1 F'(Loca] %20Se t'd.n gs¥I'e:mp",~2002%20An .... 1/2/2004 Anm~al Report Pa~e 34 of ~ 8 ,Report of Managemettt & lttdepe~'tdent A uditors' Report The Board qf Directors a,d StocMtoMers Ma~'~=agemest is responsible tYr the i:l,~te.grity and sccurac~y of lbs consolidated :l:'i~a~cial information in, ch.~de~ in [his report generally accepted irt d~e 'U nlted S.a~c's o~" America. The preparat io~ o,f d~e cad, so[ida,.ed fi=a~ciol sta.mmests requires rmmagemest to make estimates a~d a.ssmnpdo.r~s dml al%ct [he reposed amoums c~r as se!s a~d ]iabiii!ies a~d disclosu:~e o¢ co.l~ti~gc~t ;assets a:i~d liabilities al: tl:~e da~e o/" tl~e consoJJda!ed finan, cia] sm:temgnts and d'~e reported amom~.s of revenues an expenses durbg the periods report=d. accotmdng cor, tro!. l'!~is system is de:srigl~ed ~o provide reason ~:s~e assurance assets are safeguarded and mmsaCfions are appr~,pdately autl~orized and inciucied in 'd~e ~inancia} records in a~[ ma.terfia! aspects, D.~e design of this s.).s~m ~ecogniaes cra)rs or b'regula.rities may occur and estimates a.~d.)J~dgmems are reqiuir:ed t:o assess ,t!~ relative cos~ and expected b,c'nefiS~s of t!~e cOnlro~s. Ma~tage.men~: believes ~:[~e Compan>'s accoumiag con~;:rois prouJde reasosaNe assura.rtce errors or irreg~larltle~ material lo the conso]ida.ted t'~r~m'=cla~ smiements are prevemed or woldd J.)e detected in ~ reasonable [hne period. !"I've A.~,dk Cam mittee, co.reprised o em embe=s of the Board o l' D [mctorr; w];o are no~ em p!oyees, o ¢ the Cam pan?', mee~s periodica.~iy with ~he independeot audim~rs and management oldie Company Io discuss imemal accounting co,moL atididng and financial reporting matmrs lb 2002, tt~e Audit Committee re,comme~>ded t!~e se~ecdo.n of'~e indepe~dem: audit:ors, wino L[P, condt~c'~ a~'~ i ndepcn den ~: atMi~ of ~he consol idaled !Snascia ~ s~a!:em ea~.i s. Wi!!a~d D, Obe.ixon Cl'~ief'Execative OfTicer a:!~d President Execm5 ve ~ i;ce-t reside:hi, Chief Fin a~.cial O fiScer, ami t reasurre r We l'~a. ve audited d~e accompany[~g conso~idal:ed ba!ance sheets of Fasle~al Compar~y and subsidbries as of December .3 !, 2002 amJ 2001, .asd the rclaled consolidated s~a~emems of earnings, s!.ockho.~de~s' equity a~d comprel?ensive income, and cash flows Car ead~ o:l" lhe ye~ars in 'ih e !]~ree-year period e~Med Decem bet S [, 2002. These conso}idated l::%na.~cla} statem emis me ~h e respm~sibiiity of ~he Cam par~?s .ma.lmgernenl. O~tr reap<ms ibi ii be is to express an q0 h~ io~ on ~h ese consolidated Jinancfa[ statemem;s based o~'1 our midits. We: corMu;eted our au:dii:s i;r~ accordm%e w?lh auditing standards generally accepted in the United S;ta~es o:t"America.. Those s~an:dards req~i, re that ~e p lsr~ $:nd pert"brm d:m audi~ to olo.t~ain r~:aso~ial:~le assurance about wI~elher i]:~e :fS]~a'scial statements arc :[>ec of material missl~temerm .An .al,ldit: il'lC [{tales examining, on a tc~$~, basis, e:videuee suppor!;i~g fi;e am ou~:s asd d isc:] osures in ~h e fin ariel:al smtemen ts. A n amti t a Isa i nc! u des assessing d~e accounting pr:incipl e s used and sigj'~ titan ~ esi:imales made by masagemes L as well ns eva~m~lir~g the overal~ financ ia~ smtcm em presc:ntat:ion, We believe tha:t our' audi~s provide a rc~:~sonab~e basis for' our o:pL~tion. In cmr opinion, ~he consolidated fir~rmc[al s~atements ref'erred to above present :l'airly, in al! ma!eria~ rc~;pects, tl~e fi~m~.cia} position of IL~s~ena!: Compasy and st~bsidiar[es as o:1' December :31. 2002 and 200 I, and the result~ Of ~beir operations and t]~eir cash. flows fi~r each; o¢ tl~e year~ in the three?ear period e~Med December 3 ~., 2002 is co~tYrmily wiIh accounth~g princlp~e:s :gencrM~y accepted in t:ine [hfi;md Sta~es of America file:,, (.: ,D. ocm.,:~en'ts ,oz0s.~:M ,o,_.0Set't:ln.~s4¢BRA [ L! F Local ,,}.0Setm-~gs~ t emp,,~00~ ~ o~.( An 1/2/2004 Annual Report Page 35 of 3 8 Minnez~polis, Mimacsota Jan:t*s':; 17, 2003 20 20}2 A:i'mt~al Repor~ Annual Repm~ Page 36 oF 38 R ~ her~ A. ATe Hfi~ L'.x ecmi ye V ice*Eresiden [. snd Chief ©pel~a ~ [FI.f;~ Executive Vice-Presider~t. Chief Fimmcia! Of]~ccr, ?md Tr;eas~lrer V iee-PresJ ~eall..- Prod*act and I,.,ogist its Secreta~T Directors Robert A~ Mfchae[ ?,L l>re~ider~I W;iaona Hcadng& Vead~aff~g Compa:ny (shee~ metal and roodng comractor) .'~iiclu~e.~ ,L Dohm Se ff Emp bycd S u s[sess Consu;I Associate P:~ ofessor o f Mark. et~ng an d Log~dcs ManagemenL Ca:rlsor~ School of ManagemenL Urdvers~y of M~rm. csota Pres~de~t Wise ]2yes~ ]ztc. (c:,'egk~ss r~a~er' arid whole:saree) D"'ilh'~td D; Pres,.den[ and CbJef Exect!dv:e Of~c.er Rochester Ails!eric C'.]ub,. (hea~th c;h,~b) 5~ephen M, R'o,n;e K. Faste~a~ Company Services Corporate l~tfi;rmation A m~#.rd Meetb~g fi le:/;'C:~,Docu:m ems%20and%2OSettings'4,BRATILI F',,L oca[%2 0Setlin~Y'Fentp~2002%20.A.t; ..... 1/2/2004 AmmaI Report Page 3 7 of 38 v. iii be held al: i0:00 a.m., Tuesday,. April ! 5, ~:.Ov:;q'"~'~. at Corporate tieadquarlers, 200 [ The~e~ ~Bot~evm'd. Winona Mhmesom Ek~'r£ora'te Hem~Iquartets Fasmnal Company 200) The~a:~,e~ Bos[evard WJnon a, M im~esora 5598 7 PI'rune: (507)454-537~ Fax: (507) 153-80'49 &'cretao: GK &e Orogeny at the adttres's li,*~ed Copies o~'o~r }aiest press release, imaiad[ted sa!es ~ formation (beginning wjt_~ Oc:ober 2000 sales:) are avail:able a~: 1he Fas,~er~al Company Wo, rM Wid,e Web si!se a/t: wwwffns~enalxom ,4~td#ars KPMG LLP Minneapo!is. MJnrtesota Tra~i,~fer Agent W'ells Fargo Bank Minnesota, N afio:nai A%oc:Jado:n M ~mespolis, Mhmes~:~m B LOGO :fit¢://C ::'tDoc umen[s%20and%20 S cLlings~,LB'as2~,TLIF4~ocal%20Scttlngs'~Temp~,,2002%20An,_ I/2/2004 Report Page 38 o£.]8 Profile of ?as ena! Company Rico., ('"arm~i=? Me>:i6o m~d Si~gapore m~:d e:mploy~d prodtm~ cai:cBmSes, 'lTkes¢ mc[uric approxi::n:m~e[y Wpe:s of' metal cnt~kng 'a.~o[ 12[ada:4; apprx~xi]nately 24,t/)00 d~t~c~nt ~q~es of fluid tmnstL'r components zec<::ssoric:~ ~:~-r hydrat~;i~c and p~:~etmaal~c power; a.pgrox~ma~c[y 8J)00' d~l'~k~'c~zl ?y!)es el' s'u:?pB~::s; approx:ima~,cl.y 12,000 d~ffb]Te:~i: ~yp,es of w¢[dJr~g supplies (cxci~.Ming gas & wc!dinb', machines); approx;imat¢ly 29,0((I dittbmnt tspe~ of '.~a!b~y a~pplies; !oca~.ed in Mimms(:,ta, ]r~dana Ohio, Pem~;sy~v;.mia, tine md thc !:mckagiag?l:X'ocessing ceater>~ were ~'kcm~ a 200!; acquisition, Approxi]mareiy 957% or [.he Con'~pmtyk 20(1[ sales, were an;dbu]:ablc ~o products go items manu't~c~u;red, modii~ed o]r repa:hed by ei:d'~c'r the Servfcas Since !)ecembu:r 3I, 200,, thc (/ompa]ay has olm.n:ed add:idoaa~ stere sims. Db, cu:.~sim~ m~d Anal?ds oF Financial Co~ditk')l~ m2d R:e!;~lts o-i' ()p,emtions" ami '~S~ock ib~vard looking sta~emc~ts ~;s; ~ludcd ~:~ d~e .s,ccfio~, o¢ ibis Anrm:a:~ Aepor~ c~$ptioned "Ma~agam~nt's am~ Anu~ysb of' F ~iu:r~Cia] Condidm'~ and l(esu.[~s of OperatJ,oas/' The Cor~pany assumes nO ~:~b[iga1:ion; m, update TaMe of' Contents Inside ~ Cover President's L, ette to Shareholders t¢ b~; described as clm~ler~gh'~8 ~,.s ~h~:: hxlus~rkd ecmmmy m N~rd:~ ,'~,:mc:r~ca continued ~:o sMw~ so ou:r A.u.gu,~t 200'i acqui~ [km ,:m~ dai;!y sdcs gro,~ah rate [3e~:~m,~x~r. O~r }X) r~;c:!: sMes o~ S818Z~ ovc:r "be S75%6 mi~! o~ r~d: sales for 2000. m~pac~ed hy dr~e ~k>wer sa]es 8row~h dining d~e year. Th is wa:< a d,ucl~m: ~.'~¢: ~ Sm 2% ~om our 2000 <x.[mmgs of bc][(~-c: th~s wa~ d'~e ri[Cbt dccisicm aid :i~ sh.o~lM help tm aoi,8 ~:o~vard, i:,u~: d';es, e opeidr:g:; adided to, ml:l¢ ~<xal c'.xpc-n.~es, p~ssmgseveml mil;estones n Fefbm~w we oper~ed our Iocatm8 i~: m Smgapo~<,, t'i"~m~'L6bmx d~c ?m' we w~th 1,025 s~,oz'es. 200 The Fa, steaM School of cmployccs ;la April: ,,va temple,ted a 13mrko~: based s~or¢ mae, a~e~s. Tt~u, cOurxe was destgned cl;z~,ses gk'~n by ou:r region.al; d~ve!;upmcn~ opcrated: by two .,u/bsldiurk.xs bt[smess are ha.~:!warc coepemrives sucl:~ as es:timamd to geese:rote ue.t ~u~e~ o~: over SI bill/on with ot~r ex~s'tin:g dJrcu'~b~don ,on machlrm~g par[: dial; require ~pkJ; d;di:~e~,,', Th, c:~e receive the order. lmnd[¢ predates re:ore acc'~muely ~.md e:flS,uient~'.>~ center into a. new t[~cili:9¢ defa,~:gr~c,d by ou.r' employees. 'Th~: ~;1;d:~r~a] lmnd~iag Sy~l:em ~r~sml;led m I:h~s t~ses th~ la. test teclmok:,gy in scannh'~g and s,:~!at~on. We disir'ibution omxei; i1'1; ~¢l'~lT~Or~ Permsylwm I restdent$ Letter to, Shareholders doubled IJ-~a size of ;[his )3~ogra r~i, ma:~li~'~ ove:r ~ mill ~lso :p:r[~ed 207,000 copio~ cff'o-d r 1,500 pase (!~ ia blue) believe 2002 wi,t~ Pro yen O/s tribution Ne~¢ork Six- Year Selected Financial Data ~N '!I ('~ ?:;a~hli5 [:XC,kP'[~ F:~R:%P, "N ~ ~ !)~,~i1~ ?q'~S I:']:K ,,[ RR,h P~R')I(}JA'[I(?q> Dec, 31' Cha~'qe 2000 ~999 '?~8 ~997 ~996 755,6]a (il8,[9.1 51 ~233 404248 292S I 06;4?9 g6, [ 23 67~336 54A32 6:S,4:S S 52,953 40834 ;? $¥~ ! 2.5% S 0g ,0,4 ,02 .:( ~:2 .,[)2 .... o, ,)J: 37.!739 3 ,, ,~, ,,:~ Nel v<o::k;ir~g gap h,!! Tota! assets Total s~ockholdem' c~N. iiP? z ] ',~ S :2:47~876 [ 93244 142,459 106555 il:e ~ml S;:daS am!l gn~ss pr~s i~ dollar ~mct:sts E>r ~996 to 20[10 ~s,;~5.~". bman rcs~alcd to reflect the reclassificalSo,~ of sl:ippin.g and im~:MIi:ng costs NBed [o c~m~omar:s =.md s~tk*s ir~cc~ivos paid ~o gu.sro:reefs Th.,s gross profit : T,e 2:0[)0 ~:~e[ '~'orkil'~g c,l{:'qtal was reclassit:ie(~ ¢0 conlSrn: ~o l:}~e 20{1I ixrescrrtadon, :This r¢classii'~ca;dt::m ,:ii}d rml impacl: !9'99 and: earlier ye'ars~ , ! anagement s Discussion & na vs, s of Financial Condition & Results of OperatiOns Net ;saic~ fbr 2001 exceeded r<:i: aM c:s fbr 2000 by 8.3%,, rm~ sa~cs ia '20(:'1 came p;rimar~ly From impac~ 1o pi.ming d:m%~; d:~e year. The J;ncrcasc n Rcwe~ p~oc[uc~ I:mes. Th, e gr,;w~t:h in 2000 was also 41) pe~ccr~'tage of m:[ sales :f~'om I:he F'a¢s~e~m[~ prod;uc~ [iaes a~dcd to ~1i.~ or~gfna~ ~?~s~en~r predict1 iine year o F hm'n, duc~k:m. oi-pnmiu.cts being sold. A.~em 'ibc .,%t~gtx4 2:00 ! acqJ.d= approximavJy 03% big.her O'peradn2: aJ:~d admmis,:;rati~e e:'q)ease's were 3&7% nc~ s:a~es in 20(] compared (x) 34.2% zO00~ ~ a:,,'ro~ and mkm, d cosmos increased a a r,~c wMch [he f0. k¥,v~:~ increases ~n d:~e ave:rage mm~;:>a.~ cm )Joyees: Cu, ~i~g TOols 1996 ~ $~:u< 5.3% I:-Iyd:ra[~J~cs & I%eu:matk:s i996 M :d;efia.I Ha.i~dii[~g 1996 6/7% 0.4% Ekc:trical; Supplk>. ~997 2,1:% [.5% Wek:i:in g Supplies ~ 997 * -~" 0.6% Sa/Ld:V Supplies Ii 999 [(c:m:H Packaged P'm&rcts*: 200~ !0% ,=. Othc:l O. 5% !) 2000 ra~e uF :~crcase m oc:ct~p~*rlcy cos~8 wu,s ~cSS ~baa the; in bed* years due b-~ a 14.3% an<'~ a:n 1).1% i:t~crea~c r~ thc I:~l.I;i::l~:r o:Fsi~'s h~; 201); arid 20<)0, mspecfi:Vc[y, m~x~, i r~ ?.0)0:, duc to Lhe ~eiocadon of cxisdng stores ~o k~rg- er sites ~o accomn'=o<[a~e ~hci:r g:rowi:h m ac~:ivib,, and the ims~:roduc~k:,,]~ of ~m;~, p~>du:C'l: :!incs, D:istrJb~mtm cosls .5~% aBd; 5]'% o4' i:i~e Ctompany's con;~o~Ma~cd; sa[es in 2001 com:r~bu:~ed appro:-dmately S2~,62[' (or approx[mal:ely 835,900 (or ,L,t.'~%) (o 2001 :l~et sa[es rind approxima,~eiy ST940 Oar 1,1%;,) to 2000 a,:~ ,sa]es, Thu m[¢ u,F Fro.wd~ in sales of shes g<aeraBy af~e~ s:ites have l>ecn ~pen E~r five :yea :s~ and t~e sa[es Net imereist in;come:exp¢:~sc i:n; 2001 h't.creased S2i)v over ?')OI), Ne't inrerc~ h~come/c:<p,e~se in 2iX.X} increasc, d S ,4~8 over [995), ()mB~;c:s were ([ue t)~e llt~cmadcms; in [he weigh(cd evem~c amora'n: lo.ss/gains On; d[Sp0sa] o( proF, crty a;u,d ir= 20,0,. 2[)(~J~ :crud ]999 c,a~rle .p:rlJr~a~i]7 i"?um nanciaz uondRion & ResuRs of OPeration Net earJmtg.s c.o~zt:r4¢.~:d ]3.2% From 2000 to 200] a:Ed grew 2:3,3% f~o:n ~99¢ ~o 2:000, The ~O~t~¢c:Lion earni~,~s b! ~6[)[ res}~lted F,r:imadly from {] ~,~rio<~ ;{j~ 2000, an¢d (6) Khe increase; i;~ 8c:prec~ado~'t mendo~ed impact o:I7 operad~ and a. dm~=~st'ra~:N'c The Asian cooao;n:fic tu:mioi! in%rx,~,c~ed the C0mpa:n¥ ma:rg/in5 ~¢.er¢ not ira, patted, ]{o',yew,% dtadrJg ~be scc,(:md qtm.r~' of 20(>1~ 'd:~e Company did cx:pcri,e~,c~: ,~ l"ed~Jcdon ii'~ t]'m gross maqcin pc.re, enrage. This J:~xm(i 2000 the Com]xmy also experie:no;,:d lower net saks of p¢o(LBc~2 t<~ CiLStf)mers W~O export to d~e Far Bas[ when 1999 :Trod 2000 showe~ a. eominu;,8;ion o'f d~,¢ slow~io'~vn m the UrnS. ml;d Ckmada.. con:<,li)dutcd t"h'm~c~at s~teme~(s I:)ecn,.~se thc>, z'cqt~irc' and o¢~;p!c x j'ud~meni:~s. ac:com~x rc;c,eivaNc balar~ccs th,:~ are: pol:enlia!~y m~col:- a,ccOtm~S and (2)tl'~:e Compa. ny's his~,,x'icai experience widt on-ha:~d qsuantitJcs reiaiive l0 tha saJgs 1;lis:tot): ibp the r:ot :l:(~po~:[ed :lteal:d[ c!aims, [h,e ~"¢'sc~'vc is ~:-ase(~ on an cxler- ti'eEJdg. Ma~l.a~tc!=~,c;B~: beJic%':c5 tIl;a rcsults ¢0,a]d be matcr~a]- Management's DiScussion & ,Ana sz of COndition & ResUlts o£ Operations N'¢¢ cash grm,.~d~¢~ by opcmtin~ a.c~iv'~¢s S 91 727 S assem consumed 862'.524 (:4' ~x]~, ',vt~lc m '200 m n:8,[ caM'l, pro~id~d by uperadng a, cd:v~l:Jes was prima igg9 S 2;~ t5 resti~,d pdrmm]y :fi'em an h'~crc,ase J]~ ma:rkembb: i~reperl:y a~d equipmem 'l.':~s decrease is dZe¢!y ~'d 1o ~he mJgmdon o.f' em vehick, s From '17]tc Comp'a~y ~ms '~m, re c:o:rnm~ moms :):'b,r Jeasd (.;om!~aa) Im.s S6. S33 ej ]o~p'l:em:~ deb~ ~E;~[¢d rind had no ]ong-~crm deb~ at Dccmnber 3 ):, 2000 bc~a]~:l;o ~ls iBS'Lfl:aF*cc canSer. S (H:~F ClalTCl~[ i ine of a:redi[. ~nd A Facilities S; 23,795 [3~69~S 7.[!4 2,40? 576 ~,c;hic[esi [ I,H:}6 %099 2::106 [.,601 IRB 6,533 653 6;53 1,3(}{~ 3,92! o f c:md:it is S3 in 2(N'.:[, S.08 per share ~II 20{}{} a!~d S.t~ per sharc [ %)% aad paekagi~g c¢tu i:pmerx: and :[~;!c i;]i~ilc:s, approx im a:tcJv apprO, Ximai,c~y 88,088 for veNck:s, ]"~a cap[ta:i represented a sma!~¢r po~:t:ion: iln bolb 200I a~d 2000. This diec~a:,e, !bana emtiler yea. m, i.s; a direct ~esul~ avaiMblu cash aa,d c.asl~ e%mlvaien[s~ a:r~d, to, ',~ )e:sscr ope,ing n~w sitgs m [i~e, United Stares, tl:e {?Oml:,anS' Management s DiscussiOn & AnaJyst's o,f Finanbiai ConditiOn & Results of Opera?ns ;S 15.0'0,:~ ~'. OF cfm:lit of wh ~ch SO wns [l'm:t uOUM cm~sc l:b~ Compm[y's d.c~m:~ r~su~:s ~o difJ~'r materially }z/om dmxc prc'dic~ed in amh :Ibrv, a:-d- ~io~s of r;tcw empiioyc~,:s, (iii) ~:hc abi~it>' of d~e C;om]mr~y ~o de~,wh.)p pr. duc( c'xpert~se az the skore :i}, i~m'c prodt~c~ li~e:~ dm, comi'qcmcm exlsdnB prod- hazaydot~s prod:u~::l's arid to ol:hcp, v~sc ¢istribufion. network c~u!d ~:mpa. c:!: salc:s m~d (~-,'} the abi~ib, oJ' d'~c Compapy to succcssfiJl~y Blatioas related to prc, duc~ qtmliry m- p:ro~u¢~ :l~aceabi~hy cm~ld i:m~aci the ¢oS~ ~o ibe .Con?my of /mps, c~ [:be Company~ dis~:ributio[~ ne[work,~ {vii) f[:,mig:q eCOl~O:m~es cOt~ld impaci tke ability of ibc eau}sod bY ~h~, implcmer~ta:t:ion of ~hc Co:napar~y'~ odmr capii:a~ ,c.lu ~pmem. (FASI3) ~ss:ued Stat:emc:nt o~ Financial Smndanl:~ (SFAS} No. I42, Go,~¢o%~,YN ~m,,,¢ SF:,~S No 142 wiB} reqmre (hat goodwi!~ and imangible assets wh:h indeiinhe i,[se ft:d i;ivcs no ~oa/lcr a:rnonMcd,, but instead ~c, Svz(~ fk~ ~mpain~em' a~ :leas~ a,rmmd~y ;i!~ acco:rdaa,c~: wid~ SFAS 'No,. 1:42. Thc S 1,405, iTlm rc[aK'd Stax[wi)l: amortizati;ol:~ was S 2001 SFAS Nm 142 will a~so ~,qtliro {ha~ ~:espect/i,,e c. sdma~ad ~scfiJ ! i i~.'e~ to I:h~:ir e~.dmalcd ~:esid- aai values, aad rcv/e,.vcd fbr impai~nent ia aoco~da.nce with SFAS ~31, Accounting /bt the Impairment Disposed O[ SI%,S No: 1i44 wigch will S~s.%S No, )2'1, r'el:ains rn;,my of tlc SFAS 142 am] 144 :is, ~o~; exp¢ctgd ~o have a sigr~i*:ica:r~ S~ock & Financial Da~a ~?¢s a~c d,e(,'m~d r~: h,:¥ant by d'~e bo~;~r~1 o F dj Consolidated Baiance Sheets Ca>h ~;nd casJ~ ec/~Jv,aJm%~s Propc'r~y ~xnd equipmum, ':ss a¢c~.l ~ zla!c<} dep:"cc~am'>u 2000 t9,7[ 0 [06, I20 14S -I,060 284A55 S.,23~ Liab,%'fies end Sfockho/ders C~rrcn~ liabi !i!ics: Accmm ts ,payable Accn, icd expenses Im:,omc ta,x payable l'ota~ curs:mt li;d>i!~d::ics Stockbofdcrs~ eq ui[y: I'~re ?i':rrc<:~ stock Common stock, 5(LO(H),O00 qmres a~.tdmrix,:d :37.93a 688 shat'cs issuc,d Add:ido*mi paid-ia capitol 'FOra! stockhol;dc,~ equi¢ :13,502 :3, 179 6.627 379 4,424 355,248 (79'3 359.258 402.4o4 Nm: sa! ex ('os~ r~''~ Opem~,g ~m d :~dmmN~:r;~i,,'c expcr~,sc,~ Othe~~ income (expense): 2000 ?999 ...... 6~B 618,19 138 S;, I; 18 258.561 !62} 774 6:34 2:16 Consolidated Statements of Stockholders' Equity & Comprehensive income !7:721 3,79 277,553 D~xccmber 3t, 2000 37939 Ne~ ea.min~s ~br li~e ?c~r T~ut~slat;im~ a~iusm~e'rs %~a;l compr'cbc~x.q v~, $ :379 i I 21%646 65,455 730 (:L4, ! 5 ) 70,, ~ il 2 69,E~45 Consolidated Statements of Cash Flows Loss (gairf) Bad c:]?b~ expanse 8:0~ 730 55,45 S 162 220 (26,05~ (36,4? (1,959:, 5?3 62S ,777' (2[6) 3,560 2;2(I ~9t4, 2 Z86 136.729~ i{ qg ] 6,633 ~ ,::L 197 {.340) 376 ['? 787 '~ :50 3,035 ) (5~572 ) 25.763 2 08,6 2'7~849 Cash paid dtu'm8 c:ach I merest 38, i 83 8? Notes to Conso/idated Financiai Statements Revenu~ fecog.t'd~on inventories Mrirket~bl,s ~e,c'ud[ie:~ u,,; o~' Jl),cccmbe;" ~[. 200I and 2;[}(.~4;} ¢er~sJs:i; NO,es ~o Consofidated Financia! S~agemen~ The (omp;my rc<;ogrdz,::'d Notes ~o Con$ofida~ed Financial S~a~eme,ms ~ncome ~axe$ 6,2@3 34~]23 ]%46! NOte~ to Consofida~ed Financial S~a~emen~s 982 3.5(]2 Or, A~<¢.~s~ S!~ 200 the C;oml'X:my ~tcqJb~m:] c~rl:;:dn: ~L~e~S of'~wO sub~kJ~ari~ of'.Fcxtrm~, ~:~c ['h~:~ assc~x dm acq~dsi¢io~'~ da~.e The ]i~:~i: 2001 flmo, t~gl~ De~'embe:r 31,200 {. Stoekho,¢de~ 1998 d~¢ C:om?]D' cs!ab!isb,:;d 2001,2(;00 or Notes to Consolidated Financial Statements 5 I!:e,::lcrnl S 4 ] ,472 ~ i i :'1 43,:592 $'t ,.:: 6 775 343 7, ! I 8 Si:;:,ttc income :t~ xeS, net of' ~':d:cral >e:r~e:f~t Jknia] i'nco~i~c t~;x c:~;I)Cr~se 4,627 3, 73 ,il !)24 D¢::c. mber 3, i ~:~re as t~: risc' ~:~:~ defb~ed [:tX aSSe{S ~md liabiiitic:s as oF ~ooo De;l:'brrcd mx ~sse~ ~ Ik~bihtv): 020 2~ 5 9 ? s (i 2 NOtes to Consolidated Financial Statemet?t$ 2:0011 ? 114 2¢~06 %520 2004 2005 .,~ ~ ;r 497 ~(J06 and d~m eafte~ 57<1~ Leased 1999 [4,~67 4 ~,,k '; 19.149 ['~:~r bO~TO',VH~2s o,;" 'rip to S~5,000 a1 .9% over dm !.JTI-iOR rote, ()[~ December 31, 2001 ot~iatand~ng on ~.l~e I:;hte. ,5~:~ of.L)ecember 3 i. 200[.: d'~¢ ~c:,~:r~:i m:M.l a;~m r~ bakmcc ol' d~is !e~:ter of c:red~t is S3,969 Tbs. Co'~pea'y was r~Gui]'ed to ob~ab :l;:nnr~cmg :¢b,r d~s fac:~:lity t:i:l~der ~i;~ [;r~d~.~si.r~a~ Reve~tue Bond (H(E~; Thc Comptmy srttbscqt~en~:~y pt~rcb.asd i 30% of[he outs~2n,ding bonds m:~r[cr ~he [RB a'~ [~:~r. h'~ ;ad;dido~ !:o Report of Management & tndependent Auditors' Report imemd ~c¢'o~nm:~ control This S) s~em is d.csi~ed to ir~chx]ed i~:~ Ibc ~inzm::i~d rc~orda m ~i: materhd a~spec!:s ass ~m~c~: c~ror~ or i r:-u.E~.i;k~rffi~.s dc, tec~ x'J ~1: a rcas<mable dine pedod. [:~o:~r(~ o:1: [.)hmsc~ors ,,~,ho ate aOt (::::o:mparO~` r,~eel:s l~er~odicalJy wi~h tbs :irMclxa~dea~ by rise ¢~r~:hc4dc.':~. Thc mC:el)cr~den~: al~ditcxs. KPMG R ob~',r~ A. C hama;-m o:F ~;m,~ ~.~<:x,u'd and L::h;~<~f Executive Dan~ei i F~ C I'd;:~ f Fi n~ncbl 0 f~c~:~:r c,~M Fas'renal cor~:p~el~m:~sive i:ncomc, a:ri:d ca::s'~ flows ~a 6ac)~ 2001. These c,o:ltso:l~dated financial ~ta:(emenm rcspo.s bi.l~y b; (:o .-'.',p:=:<s ~*:~: opi~fi:,;:.:~ o, d~.s¢ consol;,, Jda~ed fi~tar:c:iai sl:atem:um;s based m:::, ou:r ibc ~i~aa¢ a~ positior~ of ]Fa>.[eFma! Compar:,y ~)!d S~.l13* of' d:~c ],'e~rs m d'~e d:~ree-yc-ar p<:r:iod e:ndcd ~x'mcipl:es gerr~e~::d:iy nccc[)ic,d in ~!'~e L:,rJted mc~s~ I:he C:o,u;~pa~y aSopt:.d thL: T)rovislor~;s of Officers Robert A, K/ed/n Ci~,a ire'mil o:1' d~a !:~oa~d aad Ch kr~' li{xccu~ We Oft~ccr W~t~rd & O'be~on Pr~sidem an:d Ckie¢ Opc~ag Nicholas & L~sndqui:st Vi ca- Pr'esi~,er~: of Su !c's Da n lei L, F,rorness Ste~h en M. Sec:rc/[a~5:5' Directors Michael J, Dotan Self Employ~x! !~,u¢i;m~s~ ( ,orlstlJtal'~ Robe~ A,, Ki~,,rlin L¥ iise [ye;s, Oey~g~ass ret~ Ic;r arKi 'wholesaler} John D, Remick P?~:, k; e~ al~<t Chic¢ Excc~ltive 'Olficer ( Im:nld~ club) Reyne K. Corporate !n£ormatiO n Ti~e annual meedng of ]"uesdr~B April: [6, 2002 al Corpora:~e 200! Thc:ur'er Boul~vara Wi:~,,o~a, Mirmes0ta 55987 1500 P!x)~e: (507} Fax: (507.!, 453-g040 Legat ~::aegr¢~ & 7geaso~ MJ m~eapolis. Mimx,:so(a Copies of our D.~cst !}rc:-~s release, u:l:mudil:e,d supp!e.a<ma! Company mIWmadon~ and mend:~ly :~alcs} afc, a,,ai~as>k a~ ~:he ["sstm-xd (Tm~pm~y World W:idc Web sire a~:: ~-.fastenal,com KPMG LLP M i:m',~capo, ii:s? M iar~escmt Fargo l~a~:k M /NDU$~ & ¢Z?NS~UOflON SUPP'L/E$ NO. AN ORDINANCE AL~ORIZiNG THE MAYOR 21'O, E~CT:~.E A T)D( .~.ATEaM~NT AGREEf~ENT W~TH F~TENAI. CON. ANY; SETF~G FOR~ :~L ~1'~ ~QLI'I~D ~.~iS OF THE TZO( ABATEk~NT AGREEMENT IN ACCO~CE WiTH THE TERMS OF C~:TER,: 312 OF THE ~XAS TAX CODE; SE~G FOR35f T~, VARL OUS CONDTFIONS PRECEDENT TO FA. STE~iM..,. COMP'ANY RECEIVING ~DdE TAX ~A2'EN,~NT; PROV}~ING FOR A SEVE~,*~BILN'Y CLAUSE; AND PROViDKN'G AN EFFECTK~ DATE, WttEi~,,,MS, on the 2~a day of March,, 2004, ~fier a public hearing duly held in accor- d~c:e with Tex., Tax Code {3t:2.201 (tlxe %Act'), the City Co.oil p~,sed Ordinate No. (the "Ord:in~nce') establishing Rcinves/men:t Zone No, VII, City of Denton. Tex~ ~s a com, merciaFir~dus~, :r~&~:vestmenl zone for tax aba~emen:t (~e "Zo2e'O,. as m~ffmdzed by T2[e 3, ~'mptcr 312. Subch~['pter B o:f'the Act; ~;%~7.P~EAS, OP~ thc ?d day of Jm~a~O', 2004 Fasten:al Compare submi:tt~d '~ apPlicatio2 for tax abatemem Mfl~ v~ious altachmenm to fhe City c. on.ceming ~e contemplated use of cer- i,t,Jn property Iocat~ w'[thin fl~e Zxm, e; m~d WHEREAS, the City Comcil finds that, O~e contemplated use of tl, e premises m~d the conicmpla,tcd impr°'vem:enIs lo the pr~m:i, ses, a~: indicat~ by Fasten.ag, Company ~e consistent with, mn. coum.ging fl'lc dsvelopmem of the Zone in accordance Mth d~e pu%~sea i5:>r ils creation amd are in co:mp, limnce wifi~ t}:e Denton T~. Abatement P~licy; WI~.~AS, the City (;ouncil desms il in the public inlere~ m emer [nm a T~x re, ertl, Agreem m:.t wi~h Fas len,al ,Comp, mW; NOW, THE~FORE, THE COUNCIl.. OF Tt!E C~Y OF DE~TON HEREBY O~A.~$: SECilO- 1. 7hal: the findi~nga contained in: ~.e prem~::bl.e to ~is ordinmxcc are ~e co.eot ~'d are adopled as a p~ of tl~e whole ~TION Z That:'~he (n~: Comuci] finds and deter'minesffm fo!l. owk~,g:: 1. Th:a:t the contemp[a!~d use of~he premises m~d, fn,e contemplated impmvem~ts of the prem- ises, as mdmat~ b~ Faslem,~ Comp~my are consistent wi'Ih enco~raging ~he deve[opmcn~ o:f ~e Zo,ne i~ a,ccordance with ~he Pm~oscs of i,B creafios and ~e ~ compl.i~ce with 'the Denton T~: Abatement Policy. 2, That the City Councit finds fl~at fl~e i.mpmvemm~s: sou~2 by Fast. al Gor~p~y wi~in Zone ~e k,p~.ib:ie a~d practical ~:~d wou~d be a benefit to t,he tm~,d to be ind:udcd i.~ ~e Zone amd to the ~City ~'~er the expiration of ~e Tax: Abatement A~eement to ~ entered into Fa.s~enal Company. 'T[mt the City Co~cil fi, tx<is that the Tax Abatemen~ Agmameat ¢ont~,~s ail tim tem~,s which ~e mm~datofily r~i:red, to be i:ncl'uded in a~y lax abatement agreement trader ~3t. 2,,205 of the Act,, That, in ~cord~ce with }3,12.204I of gm Act, the City Couaci] finds thai nol: later ~ ~}~e dale on which the City Cot;mci1 co~'~;idered ins or~n,~ce, aid noi !at~ i12~ '[he sev~nO~ day before '~e date the Cky eaters into a Tax Abatemen;~ Agreement wia Far.al Company,, ~at ~.e City Memager, 'thorough the Director of Ecol'm~dc Developmeni, who are h~eby desi.g. naiad m~d au. lhofized by tl~e Cky Cour~ci] to give s:uch ~ofiee, delivered ~o fi~e prmiding offi- car of the Denton. Independent School Dist. riet ,amd l)enlOa Coimt:y a w'ritte~ notice tlmt ~e City intends i:o end:ar into this Tax .... A~ba.~*e~meat' A~.eement Mth Faaen~ Co:mp~.;y. mad ~mt this not[ce incl:t~ded a c~py of ~e proposed 'T~m Abatement Agree~.~nt in substat~tially ~e :~b~ of~e Tax Abatement A~eement attached to tNs ordimmCe. 5, Thai: before ~ie p~sage of this ordin~ce, the Ci'¢' Cotmci[ held a pnb!ic be:~ng in, acer- da~ee w:ilh {.3 t Z20I of ihe ,Act and created ReinvesUnent ,Zone No, Vii. Tl~e City Cmm~:it finds tha the pretjec:t within Rei~:vesm~en:~, Zone No_ VII is a redcvelopmem of ~m existing: business as de:fi:ned :in ~.e Tax Abatemen[ Policy ~:md, ~equives additional in,ecru- fives lo promote e~o~omJc development fi'~a!: germraliy saliafi~ ~e req~remmgs of fl~e policy ~d the City Council her~Cby w~v~ Cna minJmtm'~ d~r=shold req,uireme2t witNn the policy for tax abalcment and au~h,ofizes a tax aba~emcn~ of a maximum of 35% on ~le ~re~, valtia~ fica of li~e TaxaNe Real Property impmvem:ents ami !'angib!e pemonal prop.ny as more p~- 'tkularly described in the Tax Abateme~t Agreement a~ached hecpem ,~md made: a part hereof by referm~ee as Exhibit "A" (l!~e }"Trax Abammen't Agree'mom'), SECTION 3. That the Mayor, or in, t~e:l: absence, the Mayor Pro Tern. is ized to execnte th:e Tax Abamment Agreemen~ ,Mth Flowers B&in,g Co~ of Denton L:LC, in sub- st;mtia][y the same roma as t}~e Tax Abatement Agreement a~:tached ~ Exhibit SECTION 4,. That ,he Cit}~ Com~cii hereby instn~c,~;s and authorizes ~e: City Man:agar to ir, spoor, audit, and. evaluate the pro,~ea, of Fastenal Compaay to dete:m~ine if it has met: ali of the conditions of tko atl:act~ed Tax; Abatement Ageement pxdor to ~e tax abatement ,going, in:to ef- feet, SECTION. 5,, ~'Dlm'' if a~y section,, subsection, pa:agraph, sentence, chum. p~ase, or word, in it':is ordinate,: or applica¢on t~mreof to ~y person, or circumstance is held invalid by m,~y court of competent jurisdiction, se.cb hokiing shM. l not affect the validi'~' of the remaining ~nio:: of this or~nmxce, the City Cotmcii of t11:e City of Dento?: h=reby declares 'O~at ~ey wm~ld :have enacted suc:h~ mmai,ning por~on.s daspite a~y such validity. SE(.-I ION 6, That tlais ordnance s'h~t become eiYec~¥ imme~aiety upon its passage and approval. Page 2, of 3 PAS S ED AND dPROVED ~y of ELFLINE BROCK, ~\YOiR A.'~EST: JE~R WA.LTE~:S, C~ eSECR~TAJ~.5' Page 3 of 3 EXi'lfB1T D :zOO l Theater Boukv ~uy k O~2ine[ CORFOI~A~TE RE:SOL'L~TiON D[mctom held Ap~l ].& 2002 a q~somm ofwhiCh was present the following resolution was adopt,ed md enl~ed in~o 11:c minut~ books: i~SOLVED: ThaL the resolution adopted al: O,c, January 26, I996 Bos'rd of Dke¢~:ors meeting, providing zutlao~ty to co, am people to si~, ~d, execute [eases on behalf of Fas~cna] Company, is h:~eby am. ended to 5~clu. de ~I a,f t]:~e following pemon:ncl: ~;S OLV~ED: A~eements for the purchase or sale of rea! propc~%, on beha!f of Fasteaa} Compmw: ,D~,,~d Lh.is ] 6c~ [)ay of Ap:nt ,zoO2 No corpors2e scm FasCna[ Corr',p~my AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 2, 2004 Management and Budget Kathy DuBose ~k~ SUBJECT Consider adoption of an Ordinance of the City of DeNon, Texas amending the fiscal year 2003-04 Budget and Annual Program of Services of the City of DeNon to allow for a 3% cost of living adjustmem; declaring an emergency; providing for publication; and providing an effective date. BACKGROUND During the last two budget years, the depressed economic conditions and the resulting lagging sales tax revenues have required the Council to make some very difficult decisions. One of those has been no salary increase except for Step Plan increases required by law for Police and Fire Civil Service employees. Because of the volatile nature of sales tax revenues and the sluggish economic conditions that were projected to continue at the time the FY2003-04 Budget was adopted, it was not possible to prudently anticipate that the City of Denton would see an increase in sales tax and other revenue streams, above what was forecast in the budget. Although merit based salary increases were not able to be included for the second year in a row at time the FY2003-04 Budget was adopted, Council expressed their concerns and directed staff to keep them apprised of improvemems, if any, in revenue streams. Skilled, trained employees are in great demand in the municipal field. The loss of skilled City personnel adversely impacts the City's ability to deliver and maimain city services at the currem level. Employee turnover is not only costly but also impacts the delivery of importam city services. At the February 10, 2004 Council Planning Session to discuss the Long Range Financial Forecast, the sales tax revenues showed a significant improvement over collections for the same period last year as well as the current year's budget. Council directed staff to implement a 3% cost of living adjustmem if the sales tax revenues received in February cominued to show an improvemem. The sales tax revenue allocated to the City on February 13 (which reflects December 2003 sales) brought the year-to-date total to 16.3% more than was received for the same period last year and 12.9% over currem year budget. In light of the improving economic conditions and the turn-around in sales tax revenue the FY2003-04 Budget will be amended to implemem a 3% cost of living adjustmem for City employees. The cost of living adjustmem will be effective the first full pay period in April and will be reflected in employees April 30 paycheck. RECOMMENDATION Staff recommends approval of this ordinance. Agenda Information Sheet March 2, 2004 Page 2 ESTIMATED SCHEDULE OF PROJECT The 3% cost of living adjustment would be implemented the first full pay period in April and would be reflected in employees April 30, 2004 paycheck. PRIOR ACTION/REVIEW .(Council, Boards, Commissions) This item was presented to Council for their review and discussion during the February 10, 2004 Work Session on Long Range Financial Forecast. During the August and September 2003 budget workshop deliberations and public hearing, Council expressed concerns about not having salary increases for employees for the second year in a row. At the September 2003 budget adoption, Council directed staff to monitor revenues closely and to bring back the issue of employee pay raises should revenues show an improvement during the year. FISCAL INFORMATION Budgets will be amended for the funds listed below by the following amounts: General Fund $566,000 funded by sales tax revenue increase The following Internal Service and Special Revenue Funds have sufficient fund balance to cover cost of living adjustment but require budget amendment to appropriate the expenditure: Internal Service Funds: Technology Services Fleet Services Materials Management Special Revenue Fund: Recreation Fund 33,837 12,615 11,410 17,083 The following funds have sufficient expenditure appropriation to cover the cost of living adjustment and will have no change: Electric; Water; Wastewater; Solid Waste The remaining budgeted funds, which include Tourist & Convention, Emily Fowler Library, Police Confiscation, and General Debt Service Fund do not carry any Personnel Full-Time Equivalents (FTE) and will have no change. EXHIBITS Ordinance Respectfully submitted: Anna Mosqueda Director of Management & Budget $:~0ur lieu rnlm~kOr~lanc~ ~;~l~g~t Am~tlm~mi-Co~t o fLiving,DOC ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING THE FISCAL YEAR 2003-2004 BUDGET AND ANNUAL PROGRAM OF SERVICES OF THE CITY OF DENTON TO ALLOW FOR A 3% COST OF LIVING ADJUSTMENT; DECLARING AN EMERGENCY; PROVIDING FOR PUBLICATION; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, pursuant to Ordinance No. 2003-281 the City Council of the City of Denton, Texas approved the Fiscal Year 2003-2004 Budget and Annual Program for Services (the "Budget"); and WHEREAS, due to economic conditions at the time the Budget was adopted no City of Denton salary and wage increases were approved in the Budget for the second year in row; and WHEREAS, the lack of salary and wage increases has adversely affected City employees' ability to meet increases in cost of living and has adversely affected employee morale; and WHEREAS, City employees are highly motivated and skilled and are in great demand in the municipal field; and WHEREAS, since the Budget was adopted the City has experienced unforeseen increases in revenue including sales tax revenue above what was forecast in the Budget; and WHEREAS, the City Council finds that City employees should be properly rewarded for their services to the City in such a manner as to provide for good morale and to secure their services to the City; and WHEREAS, as required by Section 8.08 of the Denton City Charter, the City Council finds that there exists a grave public necessity that requires emergency expenditures to meet unusual and unforeseen conditions, which could not by diligent thought and attention be included in the Budget; and WHEREAS, to wait for the next fiscal year budget to implement such cost of living increases would have grave public consequences by risking the loss of important City personnel which in turn would adversely impact the City's ability to properly maintain City services at the current level; and WHEREAS, the City Council finds that a grave public necessity exists which requires emergency expenditures for the such cost of living increases and to amend the Budget; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the above preamble to tiffs ordinance are tree and correct and are hereby adopted. SECTION 2. The Budget is hereby amended by the City Council to allow for the appropriation and expenditure of funds for a 3% cost of living adjustment for all employees. The amended budget is as follows: General Fund Electric Fund Water Fund Wastewater Fund Solid Waste Fund Technology Services Fund Materials Management Fund Motor Pool Fund Fleet Services Fund Recreation Fund Tourist & Convention Fund Emily Fowler Library Fund Police Confiscation Fund General Debt Service Fund $ 64,745,252 166,033,700 33,119,183 22,235,351 13,479,108 6,840,764 10,244,326 4,334,289 4,125,022 3,280,303 803,749 112,000 62,000 10,424,589 Total $339,839,636 SECTION 3. This ordinance shall be filed with the City Secretary who is directed to attach a copy of this ordinance to the Budget and cause this amendment to be published once in the Denton Record-Chronicle. SECTION 4. This ordinance was approved by at least five members of the City Council as required by Section 8.08 of the City Charter. SECTION 5 This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR Page 2 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CiTY ATTORNEY BY: Page 3