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November 4, 2003 Agenda
AGENDA CITY OF DENTON CITY COUNCIL November 4, 2003 After determining that a quorum is presem, the City Council of the City of DeNon, Texas will convene in a Work Session on Tuesday, November 4, 2003 at 5:00 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 and hold a discussion regarding a Retiremem Health Savings (RHS) Program with iCMA Retirement Corporation. Requests for clarification of consent agenda items listed on the consent agenda for today's City Council regular meeting of November 4, 2003. Following the completion of the Work Session, the City Council will convene in a Closed Meeting to consider specific items when these items are listed below under the Closed Meeting section of this agenda. When items for consideration are not listed under the Closed Meeting section of the agenda, the City Council will not conduct a Closed Meeting and will convene at the time listed below for its regular or special called meeting. The City Council reserves the right to adjourn into a Closed Meeting on any item on its Open Meeting agenda consistent with Chapter 551 of the Texas Governmem Code, as amended, as set forth below. 1. Closed Meeting: mo Consultation with Attorney - Under TEXAS GOVERNMENT CODE Section 551.071. Consider and discuss possible settlemem authority in litigation styled Sandy Reese Benigno and HarroM Anthony Benigno v. City of Denton and Billy Ray Crutsinger, Cause No. 2002-60190-393, curremly pending in the 393rd District Court, Denton County, Texas. Bo Deliberations regarding economic development negotiations - Under TEXAS GOVERNMENT CODE Section 551.087 and Consultation with the City Attorney - Under TEXAS GOVERNMENT CODE Section 551.071. Deliberate and discuss commercial or financial information received from a business prospect and offers of financial or other incentives to the business prospect for the purposes of economic development negotiations with TTHR, a Limited Partnership, regarding the construction of the expansion of a hospital facility in the City of DeNon, generally located at 207 North Bonnie Brae. 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 City of DeNon City Council Agenda November 4, 2003 Page 2 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. Regular Meeting of the City of DeNon City Council on Tuesday, November 4, 2003 at 6:30 p.m. in the Council Chambers at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: 1. PLEDGE OF ALLEGIANCE U.S. Flag Texas Flag "Honor the Texas Flag -- I pledge allegiance to thee, Texas, one and indivisible." 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards B. Recognition of staff accomplishments 3. CITIZENS REPORTS Receive citizen reports from the following: 1. John Skelton regarding the McKamy/Evers subdivision. 2. Dessie Goodson regarding general issues of the City. 3. Richard Huckaby regarding NCTC governmem studems. 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-K). This listing is provided on the Consem Agenda to allow Council Members to discuss or withdraw an item prior to approval of the Consem Agenda. If no items are pulled, Consent Agenda Items A-K below will be approved with one motion. If items are pulled for separate discussion, they will be considered as the first items following approval of the Consent Agenda. Consider approval of the minutes of September 30, October 7, October 8, and October 13, 2003. City of DeNon City Council Agenda November 4, 2003 Page 3 Consider approval of tax refunds for the following property taxes: Tax Name Reason Amount Year i ~a~P~rk~nt~II td DC~Sup~!~ ~!~h ~ ~002 $55229 2. Tom Jester & Paul Haywood DCAD Supplemental Change 2002 $ 928.45 Consider adoption of an ordinance establishing a Retirement Health Savings (RHS) Program with ICMA Retirement Corporation, Vantagecare Retirement Health Savings Program; authorizing an adoption agreement with ICMA; executing a Declaration of Trust for the ICMA Vantagecare Retirement Health Savings Plan; naming the Human Resources Director as Coordinator for the plan; and establishing an effective date. Consider adoption of an ordinance accepting competitive bids and awarding an annual contract for the purchase of water and sewer parts for the City of Denton Warehouse; providing for the expenditure of funds therefor; and providing an effective date (Bid 3080 - Water and Sewer Supplies for Warehouse inveNory stock awarded to Hughes Supply in the annual estimated amouN of $600,000). Consider adoption of an ordinance accepting competitive bids and awarding an annual contract for the purchase of cement, lime and aggregate for use by various city departmeNs; providing for the expenditure of funds therefor; and providing an effective date (Bid 3089 - CemeN, Lime & Aggregate awarded to the lowest responsible bidder for each item in the estimated amouN of $2,300,000). Consider adoption of an ordinance accepting competitive bids and awarding a coNract for the purchase of a Landfill Compactor for the City of DeNon Solid Waste Division; providing for the expenditure of funds therefor; and providing an effective date (Bid 3067 - Landfill Compactor awarded to A1-Jon in the amouN of $456,854). Consider adoption of an ordinance of the City of DeNon, Texas authorizing the Mayor to enter into an Interlocal Cooperation Agreement with the cities of Gainesville, Texas and Sherman, Texas for the use of personnel and equipmeN; authorizing the expenditure of funds therefor; and providing for an effective date. Consider adoption of an ordinance authorizing the rejection of the R.L. Adkins Bid and authorizing the re-advertisement for a Non-Drill Site/Pooling Agreement for South Lakes Park in the City of DeNon, Texas; and providing an effective date. Consider adoption of an ordinance authorizing the City Manager to execute a Non-drill Site/Pooling AgreemeN with Join Resources Company for 353 acres of North Lakes Park; and providing an effective date. Consider adoption of an ordinance of the City of DeNon, Texas authorizing the competitive bid process for an oil and gas Non-Drill Site/Pooling AgreemeN for the Airport Open Space Park; and providing an effective date. City of Demon City Council Agenda November 4, 2003 Page 4 Ko Consider adoption of an ordinance of the City Council denying the appeal of William Kim Fugitt, AIA (The Timbers at Demon, LLC.) brought pursuant to §26-226 of City of Demon Ordinance No. 2003-137, involving the imposition of impact fees; and providing for an effective date. 5. PUBLIC HEARINGS mo Hold a public hearing and consider adoption of an ordinance graining approval of an off-site sub-surface use of Mack Park, and Lake Forest Park for the purpose of oil and gas drilling operations in accordance with Chapter 26 of the Texas Parks and Wildlife Code; providing for an oil and gas lease; and providing an effective date. Bo Hold a public hearing and consider adoption of an ordinance amending the Detailed Plan for Planned Developmem 120 (PD-120) for approximately 50 acres. The property is generally located along the south side of the proposed extension of Hercules Lane approximately 1100 feet east of Nicosia Street. Residential and open space lots are proposed. The Planning and Zoning Commission recommends approval (7-0). (Z03-0019, North Pointe) 6. ITEMS FOR INDIVIDUAL CONSIDERATION mo Consider adoption of an ordinance of the City of Demon, Texas authorizing the City Manager to execute a Compromise Settlement Agreement and Release of All Claims in litigation styled Sandy Reese Benigno and Harrold Anthony Benigno v. City of Denton and Billy Ray Crutsinger, Cause No. 2002-60190-393, curremly pending in the 393rd District Court of Denton County, Texas; authorizing the expenditure of funds therefor; and providing an effective date. Bo Consider adoption of an ordinance establishing an Economic Developmem Program under Chapter 380 of the Local Governmem Code for making grams of public money to promote economic development and to stimulate business activity in the City of Denton; approving an Economic Development Incentive Agreement with TTHR Limited Partnership regarding the purchase of tangible personal property using a Texas Direct Payment Permit to generate local use tax revenue to the City, which tangible personal property will be located at an expanded hospital facility in the City of Demon generally located at 207 North Bonnie Brae; authorizing the expenditure of funds therefor; and providing an effective date. Co Consider adoption of an ordinance of the City of Demon, Texas graining an exaction variance to the Park Dedication and Development Fees Requirements for neighborhood parks for Robson Ranch, PD-173, being a residemial developmem consisting of approximately 2,725 acres of land generally located between 1-35W and Florence Road and between Robson Ranch Road and Lively Road in the City of Denton, Texas; approving a recreational program agreement; and providing an effective date. City of DeNon City Council Agenda November 4, 2003 Page 5 Do Consider approval of a resolution nominating members to the Appraisal Review Board of the Denton Central Appraisal District; and declaring an effective date. mo Consider adoption of an ordinance accepting competitive bids and awarding a public works contract for the construction of the Eastern Pecan Basin Sanitary Sewer Replacemems and Liners; providing for the expenditure of funds therefor; and providing an effective date (Bid 3088 - Eastern Pecan Basin Sanitary Sewer Replacements and Liners awarded to PATCO Utilities, Inc., in amount not to exceed $1,342,953.25). Fo Consider adoption of an ordinance authorizing the Mayor to execute an Interlocal Agreemem between the City of DeNon and Texas Woman's University to provide for Off-Campus Motor Carrier Passenger Service for TWU students, staff and faculty; and providing for an effective date. Go New Business This item provides a section for Council Members to suggest items for future agendas or to request information from the City Manager. Ho 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. Jo Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. CERTIFICATE I certify that the above notice of meeting was posted on the bulletin board at the City Hall of the City of DeNon, Texas, on the day of ,2003 at o'clock (a.m.) (p.m.) CITY SECRETARY NOTE: THE CITY OF DENTON CITY COUNCIL CHAMBERS IS ACCESSIBLE IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT. THE CITY WILL PROVIDE SIGN LANGUAGE INTERPRETERS FOR THE HEARING IMPAIRED IF REQUESTED AT LEAST 48 HOURS IN ADVANCE OF THE SCHEDULED MEETING. PLEASE CALL THE CITY SECRETARY'S OFFICE AT 349-8309 OR USE TELECOMMUNICATIONS DEVICES FOR THE DEAF (TDD) BY CALLING 1-800- RELAY-TX SO THAT A SIGN LANGUAGE INTERPRETER CAN BE SCHEDULED THROUGH THE CITY SECRETARY'S OFFICE. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: November 4, 2003 Human Resources Kathy DuBose, Fiscal Municipal Services SUBJECT Consider approval of an Ordinance establishing a Retiremem Health Savings (RHS) Program with ICMA Retirement Corporation VantageCare Retirement Health Savings Program; authorizing an adoption agreement with ICMA; executing a Declaration of Trust for the ICMA VantageCare Retirement Health Savings Plan; naming the Human Resources Director as Coordinator for the plan; and establishing an effective date. BACKGROUND The cost of medical care goes up every year, while escalating long-term care and prescription drug expenses are not fully covered by Medicare. This cominuing medical inflation, particularly for services not covered by Medicare and employer-sponsored retiree health plans, means that retirees are increasingly responsible for growing medical costs. The RHS Program enables employees to save in advance for these costs. VantageCare RHS Plan is the International City Manager's Association Retirement Corporation's (ICMA-RC) health benefit savings vehicle that allows employees to accumulate assets to pay for medical expenses (e.g., health insurance, co-pays, prescription expenses, etc.) at retiremem or upon meeting other eligibility criteria, on a tax-free basis. The plan breaks new ground for health care savings in the public sector and is offered through a concept pioneered by ICMA-RC that has received IRS approval. The City of Denton has established a plan that will allow all regular employees to contribute tax- free money into the RHS to pay for medical expenses and insurance after separation from employment. The plan will also allow for employees to contribute money on an "after-tax" basis. This voluntary program provides an important component to today's employee benefits package with no monetary liability on behalf of the City of Demon. RECOMMENDATION We recommend adoption of the Retiree Health Savings Plan. PRIOR ACTION/REVIEW No prior action or review has been taken. FISCAL INFORMATION There is no fiscal impact on the City of Denton. EXHIBITS Ordinance Respectfully Submitted: Carla Romine Director of Human Resources CITY OF DENTON CITY COUNCIL MINUTES September 30, 2003 After determining that a quorum was presem, the City Council convened in a Work Session of on Tuesday, September 30, 2003 at 11:30 a.m. in the City Council Work Session Room at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Kamp, McNeill, Montgomery, and Redmon. ABSENT: Council Member Thomson 1. The Council received a report, held a discussion and gave staff direction regarding economic development issues including but not limited to growth patterns, TIP strategies and other economic development opportunities. Mayor Brock indicated that part of the discussion at this meeting would be a review of economic development history over the last several years. She reviewed comments made by Council at a similar meeting in 2001 that dealt with the same type of economic issues. Major priorities dealt with economic development and transportation. Additional priorities included communication and marketing, community aesthetics, resources to achieve goals and cultural developmem. Perceptions of a wonderful community included a balanced community; a cooperative community; DeNon would be "the third city" in the metroplex being a cemer for employmem, medicine, retail, the arts, business services, higher education and sports and entertainment; and had a vibrato dowmown. Council discussion included the effect of high rated schools on economic developmem; making good use of higher education resources; the Denton Today conference and results from that conference; development on the northern edge of Denton; the need for higher quality meeting rooms; the establishment of good relations with other entities in the community such as the Chamber of Commerce, the two universities; good communication with the public on the city's partnerships with other entities; and looking at unconventional methods for solving solutions. Council Member Redmon left the meeting. Consensus of the Council was to proceed with the economic development concept discussed in conjunction with the TIP strategies. With no further business, the meeting was adjourned at 1:30 p.m. EULINEBROCK MAYOR CITY OFDENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES October 7, 2003 After determining that a quorum was presem, the City Council convened in a Work Session on Tuesday, October 7, 2003 at 4:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Kamp, McNeill, Montgomery, Redmon and Thomson. ABSENT: None 1. Staff responded to requests for clarification of consent agenda items listed on the consent agenda for the regular meeting of October 7, 2003. Following the completion of the Work Session, the City Council convened in a Closed Meeting to consider the items listed below under the Closed Meeting section of this agenda. 1. The following was considered in Closed Meeting A. Consultation with Attorney - Under Tex. Gov't Code §551.071. Discussed and considered legal issues with the City's attorneys concerning the Referendum Petition filed with the City Secretary to repeal Ordinance No. 2003-265 (the Solid Waste Rate Ordinance) and related matters, including a legal opinion on the Ordinance requested by a Public Utility Board member, where to discuss these legal issues with the attorneys in public would conflict with the duty of the City's attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. The City Council attended a reception and dedication of the City's newly created display honoring DeMon's former Mayors and City Managers. Regular Meeting of the City of Demon City Council on Tuesday, October 7, 2003 at 6:30 p.m. in the Council Chambers at City Hall. 1. PLEDGE OF ALLEGIANCE The Council and members of the audience recited the Pledge of Allegiance to the U. S. and Texas flags. 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards Mayor Brock presemed a proclamation for Fire Prevemion Week. B. Recognition of staff accomplishmems City Manager Conduffpresemed staff accomplishmems to the Council. City of DeNon City Council Minutes October 7, 2003 Page 2 3. CITIZEN REPORTS J. The Council received citizen reports from the following: Nell Yeldell regarding high utilities, drainage ditches, and the concrete plant. Ms. Yeldell was not present at the meeting. 2. Maureen Jamail regarding Lakeview Boulevard. Ms. Jamail felt that there were questions from the prior council meeting regarding the alignment of Lakeview Boulevard that had not been answered. She had researched those questions and wanted to share her answers with Council. A copy of her comments was included with the agenda back-up materials. 3. Ed Soph regarding growing concerns over Acme Brick. Mr. Soph stated Acme Brick had applied for a renewal of its air quality permit. He questioned what Acme Brick had done over the past to improve air quality in the City of DeNon. He cited figures of air emissions produced by Acme Brick. He requested the Council assist resideNs to petition the Texas Commission on EnvironmeNal Quality to hold a public hearing in regards to this air quality permit. 4. Dessie Goodson regarding general city issues. Ms. Goodson stated the Council had not kept their campaign promises by selling out the landfill to outside entities. She also expressed concern about the route timing of the LINK buses. 5. Alice Gore regarding Acme Brick's air quality coNrol application. Ms. Gore stated that Acme Brick had applied for an air quality coNrol application that uNil this time had been grandfathered. She detailed the area that would be affected by the emissions from the brick plaN. Many people would be affected by the emissions in areas such as schools and parks. The residents of the Denia Park area were requesting a public hearing from the Texas Commission on EnvironmeNal Quality and were requesting that the Council support that request. 4. CONSENT AGENDA Mayor Brock indicated that Item P had been pulled from consideration. Burroughs motioned, Montgomery seconded to approve the Consent Agenda and the accompanying ordinances and resolutions with the exception of Item P. Mayor Brock indicated that Donald Nance, 616 Driftwood, Denton, 76209 had submitted a Comment Card in opposition to Item 4H. City of DeNon City Council Minutes October 7, 2003 Page 3 On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. A. Approved the minutes of September 2, 9 and 16, 2003. 2003-314 - An ordinance of the City of DeNon, Texas, approving a service agreement between the City of Denton, Texas and Our Daily Bread - St Andrew Presbyterian Church in the amoum of $1,500.00, to provide expenditures for free meals and free bus tokens for low-income persons; providing for the expenditure of funds therefor; and providing for an effective date. 2003-315 - An ordinance of the City of DeNon, Texas authorizing the City Manager to execute a Professional Services Agreement with Freese and Nichols, Inc. for engineering services pertaining to the preparation of a Water Utility Vulnerability Assessmem and a Water Utility Emergency Response Plan; authorizing the expenditure of funds therefor; and providing an effective date. Approved tax refunds for the following property taxes: Name Reason Year Amount i ~gl~ tvlar~nt~ ~ l'vi~rth~ '¢,/i~g Dupii~at~ P 2. Jonathan Littmann Duplicate Payment 2002 $1,158.27 Approved an exaction variance of Section 35.20.3(B) of the Code of Ordinances concerning a perimeter street's sidewalk requirements. The parcel contained approximately 0.23 acres and was located at 1214 Morse Street. The property was within a Neighborhood Residemial-4 (NR-4) zoning district. The Planning and Zoning Commission recommended approval. (1/03-0011, Morse Street Addition) 2003-316 - An ordinance accepting competitive bids and awarding an annual contract for the purchase of Distribution Gang Operated Air Break Switches; providing for the expenditure of funds therefor; and providing an effective date (Bid 3077 - Annual Price Agreemem for Distribution Gang Operated Air Break (GOAB) Switches awarded to Hughes Supply in the estimated amoum of $40,000. 2003-317 - An ordinance awarding a comract for the purchase of phase one of a Wireless Network System for the City of Denton Water Production Plants as awarded by the State of Texas Building and Procurement Commission through the Catalog information Service Vendor (CiSV) Catalog Program; providing for the expenditure of funds therefor; and providing an effective date (File 3057 - Purchase of Wireless Network System awarded to Johnson Technical Services, inc. in the amoum of $106,624.10). 2003-318 - An ordinance authorizing the City Manager or his designee to execute a professional services agreement with the firm of Arthur Surveying Co., Inc. to provide professional surveying services in support of the City of DeNon City of Demon City Council Minutes October 7, 2003 Page 4 Engineering Department; authorizing the expenditure of funds therefor and providing an effective date (RFP 3083 in an amoum not to exceed $300,000). 2003-319 - An ordinance approving of an Imerlocal Agreemem between the City of Demon and the City of Sanger for ambulance service and declaring an effective date. Jo 2003-320 - An ordinance approving of an Imerlocal Agreemem between the City of Demon and the City of Ponder for ambulance service and declaring an effective date. Ko 2003-321 - An ordinance amending Chapter 8, Cable Television, of the Demon City Code provisions for applications and fees and provisions for small cable operators; providing for a severability clause; providing for a savings clause; providing for a penalty not to exceed $500.00 for violations of the ordinance; and providing an effective date. Lo R2003-034 - A resolution of the City of Demon, Texas encouraging inclusion of transportation funding in the scope of the legislature's study of possible tax reform; and providing an effective date. Mo R2003-035 - A resolution authorizing the City of Demon to make application for an Emergency Managemem Performance Gram (EMPG) through the State of Texas with appropriate certifications and assurances, as authorized by the Federal Emergency Managemem Agency (FEMA), and all other applicable laws; and providing an effective date. No 2003-322 - An ordinance of the City of Demon, Texas, authorizing the competitive bid process for an oil and gas non-drilling site/pooling agreemem for 10.475 acres of Vintage Parkway Right-of-Way; and providing an effective date. Oo 2003-323 - An ordinance authorizing the City Manager to execute a non-drill site/pooling agreemem with Trio Consulting and Managemem, L. L. C. for 3.13 acres of the Hickory Creek Electric Substation; and providing an effective date. P. This item was pulled from consideration. 5. PUBLIC HEARINGS A. The Council held a public hearing and considered adoption of an ordinance amending the Concept Plan and approving a Detailed Plan for Planned Developmem 173 (PD- 173) for approximately 673.4 acres. The property was generally located along the south side of H. Lively Road approximately 2.6 miles west of Imerstate 35 West. Five (5) gas well sites were proposed. The Planning and Zoning Commission recommended approval (7-0). (Z03-0020, Robson Ranch) City of Demon City Council Minutes October 7, 2003 Page 5 Kelly Carpenter, Director of Planning and Development, presented the details of the proposal. Five gas wells were proposed. The revised concept plan changed the location of two wells and the detailed plan indicated where the five wells would be located. The wells would be in place before any of the homes would be built in the area. The Mayor opened the public hearing. The following individual spoke during the public hearing: James Dickson, Devon Energy - available for questions The Mayor closed the public hearing. The following ordinance was considered: NO. 2003-324 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING ORDINANCES 99-265, AND 2001-247 TO CHANGE THE LOCATION OF GAS PARKS AND THE APPROVAL OF A DETAILED PLAN FOR FIVE GAS PARKS FOR THE PLANNED DEVELOPMENT 173 (PD-173) ZONING DISTRICT AND LAND USE CLASSIFICATION; SAID PD173 CONTAINS APPROXIMATELY 673.4 ACRES AND IS COMMONLY KNOWN AS ROBSON RANCH; PROVIDING FOR A SAVING CLAUSE; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABiLiTY CLAUSE AND AN EFFECTIVE DATE. (Z03-0020) McNeill motioned, Kamp seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. B. The Council held a public hearing and considered adoption of an ordinance regarding a Specific Use Permit for a drive-through facility. The approximately 8.3 acre property was in a Neighborhood Residemial Mixed Use (NRMU) and was generally located approximately one block south of Teasley Lane and west of FM 2181. A drive-thru bank was being proposed. The Planning and Zoning Commission recommended approval (6-1). (Z03- 0013, DA TCU) Mayor Pro Tem Burroughs and Council Member McNeill left the meeting with a conflict of interest. Kelly Carpenter, Director of Planning and Development, stated that a special use permit was required for the drive through portion of the bank in the NRMU zoning category. The Mayor opened the public hearing. No one spoke during the public hearing. City of Demon City Council Minutes October 7, 2003 Page 6 The Mayor closed the public hearing. The following ordinance was considered: NO. 2003-325 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A SPECIFIC USE PERMIT FOR A DRIVE-THRU FACILITY ON APPROXIMATELY 8.3 ACRES OF LAND GENERALLY LOCATED APPROXIMATELY ONE BLOCK SOUTH OF TEASLEY LANE AND TO THE WEST OF FM 2181, WITHIN A NEIGHBORHOOD RESIDENTIAL MIXED USE ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING FOR AN EFFECTIVE DATE. (Z03-0013) Redmon motioned, Kamp seconded to adopt the ordinance. On roll vote, Kamp "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. Mayor Pro Tem Burroughs and Council Member McNeill returned to the meeting. C. The Council held a public hearing and considered adoption of an ordinance allowing the negotiation of the best bid for a comract for an Oil and Gas Non-drill Site/Pooling Agreemem at the Airport Open Space with Lynx Oil Company, Inc. and allowing the City Manager to execute the Lease as long as the Lease is in substantially the same form as the City's Standard Lease; and providing an effective date. Dottie Palumbo, Assistant City Attorney, presented the details of the proposal as noted in the back-up materials. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. The following ordinance was considered: NO. 2003-326 AN ORDINANCE ALLOWING THE NEGOTIATION OF THE BEST BID FOR A CONTRACT FOR AN OIL AND GAS NON-DRILL SITE/POOLING AGREEMENT AT THE AIRPORT OPEN SPACE WITH LYNX OIL COMPANY, INC. AND ALLOWING THE CITY MANAGER TO EXECUTE THE LEASE AS LONG AS THE LEASE IS IN SUBSTANTIALLY THE SAME FORM AS THE CITY'S STANDARD LEASE; AND PROVIDING AN EFFECTIVE DATE. City of Demon City Council Minutes October 7, 2003 Page 7 Kamp motioned, Burroughs seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. 6. ITEMS FOR INDIVIDUAL CONSIDERATION A. The Council considered adoption of an ordinance of the City Council of the City of Denton, Texas, on final reading, granting an Interim Grant of Authority to Denton Telecom Partners I, LP d/b/a Advantex Communications to construct, reconstruct, operate and maintain a cable television system in the City of Denton, Texas and setting forth conditions accompanying the graining of this Imerim Gram of authority; providing for a penalty for the violation of this ordinance; providing for a savings clause; providing for the effect of this ordinance upon other ordinances and resolutions; and providing an effective date. John Cabrales, Public Information Officer, presemed the details of the proposal. This was the final reading of the ordinance. Advamex had been providing cable services to only Robson Ranch at this point in time. This agreement would be for one year only to provide for the sale of the system to a cable television operator. The following ordinance was considered: NO. 2003-327 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, ON FINAL READING, GRANTING AN INTERIM GRANT OF AUTHORITY TO DENTON TELECOM PARTNERS I, LP D/B/A ADVANTEX COMMUNICATIONS TO CONSTRUCT, RECONSTRUCT, OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM IN THE CITY OF DENTON, TEXAS AND SETTING FORTH CONDITIONS ACCOMPANYING THE GRANTING OF THIS INTERIM GRANT OF AUTHORITY; PROVIDING FOR A PENALTY FOR THE VIOLATION OF THIS ORDINANCE; PROVIDING FOR A SAVINGS CLAUSE; PROVIDING FOR THE EFFECT OF THIS ORDINANCE UPON OTHER ORDINANCES AND RESOLUTIONS; AND PROVIDING AN EFFECTIVE DATE. Burroughs motioned, McNeill seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. B. The Council considered adoption of an ordinance approving an amendment to an Imerlocal Agreemem between the City of Demon and University of North Texas dated November 5, 2002 to provide for bus services; and providing an effective date. Jon Fortune, Assistant City Manager, stated that the original agreement provided bus service from the campus to predominately student housing throughout the community. The amendment would invoice the University for additional expenses for start-up service for the bus route. The following ordinance was considered: City of DeNon City Council Minutes October 7, 2003 Page 8 NO. 2003-328 AN ORDINANCE APPROVING AN AMENDMENT TO AN INTERLOCAL AGREEMENT BETWEEN THE CITY OF DENTON AND UNIVERSITY OF NORTH TEXAS DATED NOVEMBER 5, 2002 TO PROVIDE FOR BUS SERVICES; AND PROVIDING AN EFFECTIVE DATE McNeill motioned, Thomson seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. C. The Council considered adoption of an ordinance authorizing the Mayor to execute an Interlocal Agreement between the City of Denton and the University of North Texas to provide for motor carrier passenger service for UNT studems, staff and faculty; and providing for an effective date. Jon Fortune, Assistant City Manager, stated that this agreement would provide free bus service to studems, faculty, and staff for bus service. UNT paid the city a set fee for this service. Users of the service had to show a UNT ID in order to take advantage of this service. This amendment changed the cost per student to $.80 per trip. The following ordinance was considered: NO. 2003-329 AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN INTERLOCAL AGREEMENT BETWEEN THE CITY OF DENTON AND THE UNIVERSITY OF NORTH TEXAS TO PROVIDE FOR MOTOR CARRIER PASSENGER SERVICE FOR UNT STUDENTS, STAFF AND FACULTY; AND PROVIDING FOR AN EFFECTIVE DATE. Thomson motioned, Kamp seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. D. The Council considered adoption of an ordinance accepting competitive bids and awarding a public works contract for the construction of the Cooper Glen-Monterey Open Space, Phoenix Park and Fred Moore Park Trails Project; providing for the expenditure of funds therefor; and providing an effective date (Bid 3081 - Cooper Glen-Momerey Open Space, Phoenix Park and Fred Moore Park Trails Project awarded to Jones and Jeffery Construction Co., Inc. in the amoum of $247,623). Janet Simpson, Interim Director of Parks and Recreation, stated that this item related to pedestrian/bicycle trails in three different locations as noted above. The proposal was in conjunction with the Parks Master Plan. City of Demon City Council Minutes October 7, 2003 Page 9 The following ordinance was considered: NO. 2003-330 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF THE COOPER GLEN- MONTEREY OPEN SPACE, PHOENIX PARK AND FRED MOORE PARK TRAILS PROJECT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. Kamp motioned, Thomson seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. E. The Council considered approval of a resolution authorizing the City Manager, as Denton's authorized representative, to accept on behalf of the City of Denton, an offer from the Texas Department of Transportation (TxDOT) relating to a grant for certain improvements to the Denton Municipal Airport; confirming agreement to pay a portion of the total project costs; and providing an effective date. Jon Fortune, Assistant City Manager, stated that the resolution would confirm that Denton would receive a grant for $2.4 million for the realignment of the taxiway at the Airport. The following resolution was considered: NO. R2003-036 A RESOLUTION AUTHORIZING THE CITY MANAGER, AS DENTON'S AUTHORIZED REPRESENTATIVE, TO ACCEPT ON BEHALF OF THE CITY OF DENTON, AN OFFER FROM THE TEXAS DEPARTMENT OF TRANSPORTATION (TXDOT) RELATING TO A GRANT FOR CERTAIN iMPROVEMENTS TO THE DENTON MUNICIPAL AIRPORT; CONFIRMING AGREEMENT TO PAY A PORTION OF THE TOTAL PROJECT COSTS; AND PROVIDING AN EFFECTIVE DATE. Montgomery motioned, Burroughs seconded to approve the resolution. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. F. The Council considered approval of a resolution nominating a member to the Board of Directors of the Denton Central Appraisal District; and declaring an effective date. Diana Ortiz, Director of Fiscal Operations, requested nominations for the Board of Directors of the Denton Central Appraisal District. All of the current members were interested in being nominated again, in the past, the City had joined with the DiSD to nominate a member. City of Demon City Council Minutes October 7, 2003 Page 10 The following resolution was considered: NO. R2003-037 A RESOLUTION NOMINATING A MEMBER TO THE BOARD OF DIRECTORS OF THE DENTON CENTRAL APPRAISAL DISTRICT; AND DECLARING AN EFFECTIVE DATE. Burroughs motioned, McNeill seconded to coordinate nominations with the DISD and to nominate Rick Woolfolk and Charles Stafford. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Momgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. G. The Council considered approval of a resolution of the City of Demon, Texas, supporting the completion of Farm-To-Market Road 2499 and respectfully requesting that all necessary resources be utilized to assure that it is successfully expedited within the proposed schedule; and providing an effective date. The following resolution was considered: NO. R2003-038 A RESOLUTION OF THE CITY OF DENTON, TEXAS, SUPPORTING THE COMPLETION OF FARM-TO-MARKET ROAD 2499 AND RESPECTFULLY REQUESTING THAT ALL NECESSARY RESOURCES BE UTILIZED TO ASSURE THAT IT IS SUCCESSFULLY EXPEDITED WITHIN THE PROPOSED SCHEDULE; AND PROVIDING AN EFFECTIVE DATE. Council Member McNeill suggested a wording change from "all resources" to "all necessary resources". Burroughs motioned, McNeill seconded to approve the resolution as amended. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. H. New Business The following items of New Business were suggested by Council Members for future agendas: 1. Council Member Thomson requested a letter of support from the Mayor and/or Council for a public hearing on the Acme Brick air quality permit. Thomson motioned, Kamp seconded to authorize the Mayor to draft a letter on behalf of the entire Council requesting the Texas Commission on Environmental Quality hold a public hearing on the issuance of an air permit for Acme Brick. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. City of Demon City Council Minutes October 7, 2003 Page 11 2. Council Member Redmon questioned ifUNT could monitor air quality in the area and possibly do some soil testing. 3. Council Member Redmon requested information on horizomal drilling. 4. Council Member Thomson requested an update on the Eureka Playground situation and questioned whether the City needed to continue to monitor the equipment. 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. J. Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no cominuation of the Closed Meeting. K. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. Burroughs motioned, McNeill seconded to authorize staff to create a new solid waste ordinance and place the repeal of the existing ordinance on a future agenda at the earliest time. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. With no further business, the meeting was adjourned at 8:17 p.m. EULINEBROCK MAYOR CITY OFDENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL/PLANNING AND ZONING COMMISSION MINUTES October 8, 2003 After determining that a quorum was preseN, the City Council convened in a Join Work Session of the City of DeNon City Council and the Planning and Zoning Commission on Wednesday, October 8, 2003 at 4:00 p.m. in the City Council Work Session Room. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Kamp, McNeill, Montgomery, and Thomson. ABSENT: Council Member Redmon 1. The Council and the Planning and Zoning Commission held a discussion and gave staff direction regarding the role of boards in good governance including but not limited to understanding board roles, handling board recommendations, a good governance agreemeN, Council's vision for the community and the Board's role in that vision. City Manager Conduff stated that Council had wanted to meet with key boards to discuss the role of boards and how important that role was to the Council. Discussions would include the Council's agreement with the Planning and Zoning Commission on how to handle their recommendations, the Council's vision for the community and the implementation of the Denton Plan. The Council and the Planning and Zoning Commission discussion included the following poiNs: The Planning and Zoning Commission was knowledgeable of the formal requiremeNs of the Commission but needed an overview of the Council's direction on what to accomplish. Council should follow the Commission's recommendation unless new information was made available to the Council before voting on the item. If that happened, the item should be remanded back to the Commission for reconsideration. The Commission was the expert to present the City's policy with the facts and make recommendations to the Council. When policy was unclear, the Commission should make that known and then indicate to Council what the policy should be or what the inconsistencies were. When items were remanded back to the Commission from the Council, the Council needed to provide a specific list of what additional information had been gathered or the direction the Commission should consider such as consider this section of the code or this is the new information the Council received. When an item was remanded back to the Commission, staff would note specifics for the Commission to reconsider and articulate those points. Council would follow the practice that if an item came to them with a favorable recommendation from the Commission and from staff, it would follow that recommendation and place the item on the Consent Agenda. If it were a divided recommendation such as 4-3 vote, the Council might bring the item forward for individual consideration and discussion and if it decided to go against the majority of the Commission, would remand the item back to the Commission. If an item had a City of Demon City Council Minutes October 8, 2003 Page 2 favorable Commission vote and disseming staff recommendation, the Council would give the majority weight to the Commission and might remand the item to the Commission based on the staff information but would relay that to the Commission Developers needed to know that the Commission was the proper mechanism to hear their proposals and not try to bypass the Commission and go directly to the Council for an overriding decision. Consider the possibility of longer terms for Council and Commission members in order to allow for a better learning curve. Council and the Commission will disagree at times on issues. The Commission needed to use its best judgment and not concentrate on the Council's viewpoints. Council dealt with policy issues and the Commission dealt with applying those policy issues. Issues to consider were relations with the university communities, rail status for stations, the changing gas well technology, and I35 development at the intersection of the two highways. It was frustrating for the Commission to have to rehash topics over and over again such as the Lakeview Blvd. alignment and the tree preservation ordinance. The Commission would like the Council to stand with the Commission to balance the two sides of the issue. The verbatim minutes of the Commission at times can hold up Council consideration of an item. Staff would develop options for a compromise on the total verbatim minutes such as a summary statement on 7-0 votes; anything else would have verbatim minutes. The Commission would be treated with respect as a body and as individuals and their work would be taken seriously. Future Commission budgets might include some type of comingency funding for non- budgeted issues that the Commission wanted to consider. With no further business, the meeting was adjourned at 5:30 p.m. EULINE BROCK MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL/PUBLIC UTILITIES BOARD MINUTES October 13, 2003 After determining that a quorum was present, the City Council convened in a Joint Work Session with the Public Utilities Board on Monday, October 13, 2003 at 12:30 p.m. in the City Council Work Session Room at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Kamp, McNeill, Montgomery, Redmon and Thomson. ABSENT: None 1. The Council held a discussion and gave staff direction regarding the role of boards in good governance including but not limited to understanding board roles, handling board recommendations, a good governance agreement, Council's vision for the community and the Board's role in that vision. City Manager Conduff stated that this session was an outgrowth of a prior Council planning session to help further the great relationship between the Council and the Public Utilities Board. The Council was in the process of setting the vision for the community. He reviewed the governance agreement that the Council had in place for dealing with board recommendations. The Council and the Public Utilities Board discussion included the following points: More news reporting coverage was needed especially in the area of street construction. A decision of the PUB would not be overridden except if new information came to Council and if so, would be remanded back to PUB for consideration. The minutes of the PUB needed to be a good summary of the discussions. A unanimous, non-controversial vote would not need as much detail. Split votes needed more flow of the meeting in order to determine why the vote was taken as it was. A consideration might be to change the day of the PUB meeting to the second and fourth Mondays of the month in order to provide minutes in a more timely manner. The role of the PUB was not as a policy-maker but rather as the implementer of the policies set by Council. Unclear policy issues needed to be separated and the Council informed of those issues. Policies needed to be created before implementation with input from the PUB. A discussion was needed regarding Section 12.03 of the Charter dealing with return on investment and the transfer of money from utilities to the general fund. When dealing with concerns of the PUB, it was suggested that the PUB would investigate and return recommendations to the Council, request legal opinions when necessary and once Council had decided on an issue, all would abide by that decision. Might it be beneficial for DME to have a separate board rather than referring those types of issues to the PUB. City of Demon City Council Minutes October 13, 2003 Page 2 Determine what types of issues would be brought to the PUB for consideration. With no further business, the meeting was adjourned at 2:10 p.m. EULINE BROCK MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY DENTON, TEXAS AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET November 4, 2003 Tax Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider approval of tax refunds for the following property taxes: Tax Name Reason Year Amount nt Ltd ~ ~SuPP!~nt ~an¢ B. Tom Jester & Paul Haywood DCAD Supplemental Change 2002 928.45 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 $1,480.74. Respectfully submitted: Diana Ortiz Director of Fiscal Operations AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: November 4, 2003 Human Resources Kathy DuBose, Fiscal Municipal Services SUBJECT Consider approval of an Ordinance establishing a Retiremem Health Savings (RHS) Program with ICMA Retirement Corporation VantageCare Retirement Health Savings Program; authorizing an adoption agreement with ICMA; executing a Declaration of Trust for the ICMA VantageCare Retirement Health Savings Plan; naming the Human Resources Director as Coordinator for the plan; and establishing an effective date. BACKGROUND The cost of medical care goes up every year, while escalating long-term care and prescription drug expenses are not fully covered by Medicare. This cominuing medical inflation, particularly for services not covered by Medicare and employer-sponsored retiree health plans, means that retirees are increasingly responsible for growing medical costs. The RHS Program enables employees to save in advance for these costs. VantageCare RHS Plan is the International City Manager's Association Retirement Corporation's (ICMA-RC) health benefit savings vehicle that allows employees to accumulate assets to pay for medical expenses (e.g., health insurance, co-pays, prescription expenses, etc.) at retiremem or upon meeting other eligibility criteria, on a tax-free basis. The plan breaks new ground for health care savings in the public sector and is offered through a concept pioneered by ICMA-RC that has received IRS approval. The City of Denton has established a plan that will allow all regular employees to contribute tax- free money into the RHS to pay for medical expenses and insurance after separation from employment. The plan will also allow for employees to contribute money on an "after-tax" basis. This voluntary program provides an important component to today's employee benefits package with no monetary liability on behalf of the City of Demon. RECOMMENDATION We recommend adoption of the Retiree Health Savings Plan. PRIOR ACTION/REVIEW No prior action or review has been taken. FISCAL INFORMATION There is no fiscal impact on the City of Denton. EXHIBITS Ordinance Respectfully Submitted: Carla Romine Director of Human Resources ORDINANCE NO. AN ORDINANCE ESTABLISHING A RETIREMENT HEALTH SAVINGS (RHS) PROGRAM WITH ICMA RETIREMENT CORPORATION VANTAGECARE RETIREMENT HEALTH SAVINGS PROGRAM; AUTHORIZING AN ADOPTION AGREEMENT WITH ICMA; EXECUTING A DECLARATION OF TRUST FOR THE ICMA VANTAGECARE RETIREMENT HEALTH SAVINGS PLAN; NAMING HUMAN RESOURCES DIRECTOR AS COORDINATOR FOR THE PLAN; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the City of DeNon (Employer) has employees rendering valuable services; and WHEREAS, the establishmem of a retiree health savings plan for such employees serves the imerests of the Employer by enabling it to provide reasonable security regarding such employees' health needs during retiremem, by providing increased flexibility in its personnel managemem system, and by assisting in the attraction and retemion of competem personnel; and WHEREAS, the Employer has determined that the establishmem of the retiree health savings plan (the "Plan") serves the above objectives; NOW THEREFORE; THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City of DeNon, Texas (Employer) hereby adopts the Plan in the form of the ICMA Retirement Corporation's VantageCare Retirement Health Savings program. SECTION 2. That the assets of the Plan shall be held in trust, with the Employer serving as trustee, for the exclusive benefit of Plan participants and their beneficiaries, and the assets of the Plan shall not be diverted to any other purpose prior to the satisfaction of all liabilities of the Plan. The Employer will execute the Declaration of Trust of the City of Denton Intergral Part Trust in the form of the model trust made available by the ICMA Retirement Corporation, attached hereto as Exhibit A. The City Manager is authorized to execute all agreements to establish trust and obtain service with ICMA Retirement Corporation. SECTION 3. That the Human Resource Director shall be the coordinator for the Plan; shall receive reports, notices, etc. from the ICMA Retirement Corporation; and is authorized to execute all necessary agreements with the ICMA Retirement Corporation incidental to the administration of the Plan. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. S:\Our Documcnts\Ordinances\03\ICM A retiree hcal/h savings plan.doc PASSED AND APPROVED this the __ day of ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: S:\Our Documcnts\Ordinancos\03\ICM A retiree hcal/h savings plan.doc EXHIBIT "A" DECLARATION OF TRUST OF THE NAME OF EMPLOYER INTEGRAL PART TRUST Declaration of Trust made as of the by and between the Name o~ Employer (hereinafter referred to as the "Employer") and referred 1:o as the "Trustee"). day of Name of Trustee State Type of Entity or its designee (hereinafter RECITALS WHEREAS, the Employer is a political subdivision of the State of exempt from federal income tax under the tnternai Revenue Code of 1986; and WHEREAS, the Employer provides for the security and welfare of its eligible employees (here- inafter referred to as "Participants"), their Spouses, Dependej~ts and Beneficiaries by the maintenance of one or more post-retirement welfare benefit plans, programs or arrangements which provide for life, sickness, medical, disability, severance and other similar benefits through insurance and self-funded reimbursement plans (collectively the "Plan"); and WHEREAS, it is an essential function and integral part of the exempt activities of the Employer to assist Participants, their Spouses, Dependents and Beneficiaries by making contributions to and accu- mulating assets in the trust, a segregated fund, for post-retirement welfare benefits under the Plan; and WHEREAS, the authority to conduct the general operation and administration of the Plan is vested in the Employer or its designee, who has the authority and shall be subject to the duties with respect to the trust specified in this Declaration of Trust; and WHEREAS, the Employer wishes to establish this trust to hold assets and income of the Plan for the exclusive benefit of Plan Participants, their Spouses, Dependents and Beneficiaries; .NOW, THEREFORE, the parties hereto do hereby establish this trust, by executing the Declara- tion of Trust of the ~.~ OL ~'~])~ Integral Part Trust (hereinafter referred to ~ ~ ' *Name of Employer ............ as the "Trust"), and agree that the following constitute the Declaration of Trust (hereinafter referred to as the "Declaration"): RETAIN BOOK~L£T ARTICLE I Definitions 1.1 Definitions. For the purposes of this Declaration, the following terms shalI have the respective meanings set forth below unless otherwise expressly provided. (a) "Account" means the individual recordkeeping account maintained under the Plan to record the interest of a Participant in the Plan in accordance with Section 7.4. (b) "Administrator" means the Employer or the entity designated by the Employer to carry out admin- istrative services as are necessary to implement the Ptan. (c) "Beneficiary" means the Spouse and Dependents, or the person or persons designated by the Participant pursuant to the terms of the P~an, who will receive any benefits payable hereunder in the event of the Participant's death. A Beneficiary may aisc designate a beneficiary(les) to receive any benefits payable hereunder in the event of the preceding Beneficiary's death, until the satisfac- tion of alt liabilities under the Plan to provide benefits. In the case where there is no designated Beneficiary, any amount of contributions, p~us accrued earnings thereon, remaining in the Account must, under the terms of the Plan, be returned to the Trust. (~l) "Code" means the Internal Revenue Code of 1986, as amended from time to time. (e) "Dependent" means an individual who is a person described in Code Section 152(a). (f) "Investment Fund" means any separate investment option or vehicle selected by the Emptoyer in which all or a portion of the Trust assets may be separately invested as herein provided. The Trustee sha[l not be required to select any Investment Fund. (g) "Nonforfeitable Interest" means the interest of the Participant or the Participant's Spouse, Depend- ent or Beneficiary (whichever is applicable) in the percentage of Participant's Employer's contribu- tion which has vested pursuant to the vesting schedule specified in the Employer's Plan. A Partici- pant shall, at all times, have a one hundred percent (100%) Nonforfeitable interest in the Partici- pant's own contributions. (h) "Spouse" means the Participant's lawful spouse as determined under the laws of the state in which the Participant has his primary place of residence. (i) "Trust" means the trust established by this Declaration. (j) ''Trustee" means the Employer or the person or persons appointed by the Employer to serve in that capacity. VANTAGECARE RETIREMENT HEALTH SAVINGS PLAN ARTICLE II Establishment of Trust 2.1 The Trust is hereby established as of the date set forth above for the exclusive benefit of Partici- pants, their Spouses, Dependents and Beneficiaries. ARTICLE III Construction :~h~st and its validity, construction and effect shalI be governed by the laws of the State of State 3.2 Pronouns and other similar words used herein in the masculine gender shall be read as the feminine gender where appropriate, and the singular form of words shall be read as the plural where appropriate· 3.3 If any provision of this Trust shall be held illegal or invalid for any reason, such determination shall not affect the remaining provisions, and such provisions shalt be construed to effectuate the purpose of this Trust. ARTICLE IV Benefits 4.1 Benefits. This Trust may provide benefits to the Participant, the Participant's Spouse, Dependents and Beneficiary{ies) pursuant to the terms of the Plan. 4.2 Form of Benefits. This Trust may provide benefits by cash payment. This Trust may reimburse the Participant, his Spouse, Dependents or Beneficiary(ies) for insurance premiums or other payments ex- pended for permissible benefits described under the Plan, This trust may reimburse the Employer, or the Administrator for insurance premiums. ARTICLE V General Duties 5.1 It shall be the duty of the Trustee to hold title to assets held in respect of the Plan in the Trustee's name as directed by the Employer or its designees in writing. The Trustee shall not be under any duty to com- pute the amount of contributions to be paid by the Employer or to take any steps to collect such amounts as may be due to be held in trust under the Plan. The Trustee shall not be responsible for the custody, investment,'safekeeping or disposition of any assets comprising the Trust, to the extent such functions are performed by the Employer or the Administrator, or both. 5.2 It shatf be the duty of the Employer, subject to the provisions of the Plan, to pay over to the Adminis- trator or other person designated hereunder from time to time the Employer's contributions and Partici- pants' contributions under the Ptan and to inform the Trustee in writing as to the identity and vaiue of the assets titled in the Trustee's name hereunder and to keep accurate books and records with respect to the Participants of the Plan. RETAIN BOOKLET ARTICLE VI Investments 6.1 The Employer may appoint one or more investment managers to manage and control all or part of the assets of the Trust and the Employer shall notify the Trustee in writing of any such appointment. 6.2 The Trustee shall not have any discretion or authority with regard to the investment of the Trust and shall act solely as a directed Trustee of the assets of which it holds title. To the extent directed by the Employer (or Participants, their Spouses and Dependents, or Beneficiaries to the extent provided herein) the Trustee is authorized and empowered with the following powers, rights and duties, each of which the Trustee shall exercise in a nondiscretionary manner: (b) To cause stocks, bonds, securities, or other investments to be registered in its name as Trustee or in the name of a nominee, or to take and keep the same unregistered; To employ such agents and legal counsel as it deems advisable or proper in connection with its duties and to pay such agents and legal counsel a reasonable fee. The Trustee shaII not be liable for the acts of such agents and counsel or for the acts done in good'faith and in reliance upon the advice of such agents and legal counsel, provided it has used reasonable care in selecting such agents and legal counsel; To exercise where applicable and appropriate any rights of ownership in any contracts of insurance in which any part of the Trust may be invested and to pay the premiums thereon; and {d) At the direction of the Employer (or Participants, their Spouses, their Dependents, their Benefi- ciaries, or the investment manager, as the case may be) to soil, write options on, convey or transfer, invest and reinvest any part thereof in each and evew kind of property, whether real, personat or mixed, tangible or intangible, whether income or non-income producing and wherever situated, including but not limited to, time deposits (including time deposits in the Trustee or its affiliates, or any successor thereto, if the deposits bear a reasonable rate of interest), shares of common and preferred stock, mortgages, bonds, leases, notes, debentures, equipment or collateral trust certificates, rights, warrants, convertible or exchangeable securi- ties and other corporate, individual or government securities or obligations, annuiW, retire- ment or other insurance contracts, mutual funds (including funds for which the Trustee or its affiliates serve as investment advisor, custodian or in a similar or related capacity), or in units of any other common, collective or commingled trust fund. 6.3 Notwithstanding anything to the contraw herein, the assets of the Plan shall be held by the Trustee as title holder only. Persons holding custody or possession of assets titled to the Trust shall include the Employer, the Administrator, the investment manager, and any agents and subagents, but not the Trustee. The Trustee shall not be responsible or liable for any loss or expense which may arise from or result from compliance with any direction from the Employer, the Administrator, the investment manager, or such agents to take title to any assets nor shall the Trustee be responsible or liable for any loss or expense which may result from the Trustee's refusal or failure to comply with any direction to hold title, except if the same shall involve or result from the Trustee's negligence or intentional misconduct. The Trustee may refuse to compty with any direction from the Employer, the Administrator, the investment manager, or such agents in the event that the Trustee, in its sole and absolute discretion, deems such direction illegal. 6.4 The Employer hereby indemnifies and holds the Truste~ harmless from any and all actions, claims, demands, liabilities, losses, damages or reasonable expenses of whatsoever kind and nature in connection with or arising out of (i) any action taken or omitted in good faith by the Trustee in accordance with the directions of the Employer or its agents and subagents hereunder, or (ii) any disbursements of any part of the Trust made by the Trustee in accordance with the directions of the Employer, or (iii) any action taken by or omitted in good faith by the Trustee with respect to an investment managed by an investment manager in accordance with any direction of the investment manager or any inaction with respect to any 'such investment in the absence of directions from the investment manager. Notwithstanding anything to the contrary herein, the Employer shall have nb responsibility to the Trustee under the foregoing indemni- fication if the Trustee fails negligently, intentionally or recklessly to perform any of the duties undertaken by it under the provisions of this Trust. 6.5 Notwithstanding anything to the contrary herein, the Employer or, if so designated by the Employer, the Administrator and the investment manager or another agent of the Employer, wili be responsible for valuing ail assets so acquired for all purposes of the Trust and of hotding, investing, trading and disposing of the same. The Employer wili indemnify and hold the Trustee harmless against any and ail claims, actions, demands, liabilities, Iosses, damages, or expenses of whatsoever kind and nature, which arise from or are related to any use of such valuation by the Trustee or holding, trading, or disposition of such assets. 6.6 The Trustee shall and hereby does indemnify and hold harmless the Employer from any and all ac- tions, claims, demands, liabilities, losses, damages and reasonable expenses of whatsoever kind and nature in connection with or arising out of (a) the Trustee's failure to follow the directions of the Emptoyer, the Administrator, the investment manager, or agents thereof, except as permitted by the last sentence of Section 6.3 above; (b) any disbursements made without the direction of the Employer, the Administrator, the investment manager or agents thereof; and (c) the Trustee's negligence, willful misconduct, or reck- lessness with respect to the Trustee's duties under this Declaration. ARTICLE VII Contributions 7.1 Employer Contributions. The Employer shall contribute to the Trust such amounts as specified in the Plan or by resolution. 7.2 Participant Contributions. tf specified in the Plan, each Participant may make voluntaw after-tax contributions. Under no circumstances shall Participant Contributions exceed an insubstantial' amount. These contributions shall be collected by the Employer and remitted to the Trust for deposit at such time or times as required under the terms of the Plan. 7.3 Accrued Leave. Contributions up to an amount equal to the value of accrued sick leave, vacation leave, or other Wpe of accrued leave, as permitted under the Plan. The Employer's Plan must provide a formula for determining the value of the Participant's contribution of accrued leave. The Employer's Plan must contain a forfeiture provision that will prevent Participants from receiving the accrued leave in cash in lieu of a contribution to the Trust. 7.4 Accounts. Employer contributions, Participant contributions, and contributions of accrued leave, all investment income and realized and unrealized gains and losses, and forfeitures allocable thereto wilt be deposited into an Account in the name of the Participant for the exclusive benefit of the Participant, his Spouse, Dependents and Beneficiaries. The assets in each Participant's Account may be invested in Investment Funds as directed by the Participant (or, after the Participant's death, by the Spouse, Dependents or Beneficiaries) from among the Investment Funds selected by the Employer. 7.5 Receipt of Contributions. The Employer or, if so designated by the Employer, the Administrator or investment manager or another agent of the Employer, shall receive all contributions paid or delivered to it hereunder and shall hold, invest, reinvest and administer such contributions pursuant to this Declara- tion, without distinction between principal and income. The Trustee shall not be responsible for the calculation or collection of any contribution under the Plan, but shall hold title to property received in respect of the Plan in the Trustee's name as directed by the Employer or its designee pursuant to this Declaration. 8 RETAIN BOOKLET 7.6 No amount in any Account maintained under this Trust shall be subject to transfer, assignment, or alienation, whether voluntary or involuntary, in favor of any creditor, transferee, or assignee of the Em- ployer, the Trustee, any Participant, his Spouse, Dependent, or Beneficiaries. 7.7 Upon the satisfaction of alt liabilities under the Plan to provide such benefits, any amount of Employer contributions, plus accrued earnings thereon, remaining in such separate Accounts must, under the terms of the Plan, be returned to the Employer. ARTICLE VIII Other Plans If the Employer hereafter adopts one or more other plans providing life, sickness, accident, medical, disability, severance, or other benefits and designates the Trust hereby created as part of such other plan, the Employer or, if so designated by the Employer, the Administrator or an investment manager or an* other agent of the Employer shafl, subject to the terms of this Declaration, accept and hold hereunder contributions to such other plans. [n that event (a) the Employer or, if so designated by the Employer, the Administrator or an investment manager or another agent of the Employer, may commingle for invest- ment purposes the contributions received under such other plan or plans with the contributions previously received by the Trust, but the books and records of the Employer or, if so designated by the Employer, the Administrator or an investment manager or another agent of the Employer, shall at all times show the portion of the Trust Fund aIlocable to each plan; (b) the term "Plan" as used herein shall be deemed to refer separately to each other plan; and (c) the term "Employer" as used herein shall be deemed to refer to the person or group of persons which have been designated by the terms of such other plfins as having the authority to control and manage the operation and administration of such other plan. ARTICLE IX Disbursements and Expenses 9.1 The Employer or its designee shall make such payments from the Trust at such time to such persons and in such amounts as shall be authorized by the provisions of the Plan provided, however, that no payment shall be made, either during the existence of or upon the discontinuance of the PIan (subject to Section 7.7), which would cause any part of the Trust to be used for or diverted to purposes other than the exclusive benefit of the Participants, their Spouses and Dependents, and Beneficiaries pursuant to the provisions of the Plan. 9.2 All payments of benefits under the Plan shall be made exclusively from the assets of the Accounts of the Participants to whom 'or to whose Spouse, Dependents, or Beneficiaries such payments are to be made, and no person shall be entitled to look to any other source for such payments. 9.3 The Employer, Trustee and Administrator may be reimbursed for expenses reasonably incurred by them in the administration of the Trust. All such expenses, including, without limitation, reasonable fees of accountants and legal counsel to the extent not otherwise reimbursed, shall constitute a charge against and shall be paid from the Trust upon the direction of the Employer. ARTICLE X Accounting 10.1 The Trustee shall not be required to keep accounts of the investments, receipts, disbursements, and other transactions of the Trust, except as necessaw to perform its title*holding function hereunder. All accounts, books, and records relating thereto shall be maintained by the Employer or its designee. VANTAGECARE RETIREMENT HEALTH SAVINGS PLAN 10.2 As promptly as possible following the close of each year, the Trustee shall file with the Employer a written account setting forth assets titled to the Trust as reported to the Trustee by the Employer or its designee. ARTICLE XI Miscellaneous Provisions 11.1 Neither the Trustee nor any affiliate thereof shall be required to give any bond or to qualify before, be appointed by,.or account to any court of law in the exercise of its powers hereunder. 11.2 No person transferring title or receiving a transfer of title from the Trustee shall be obligated to look to the propriety of the acts of the Trustee in connection therewith. 11.3 The Employer may engage the Trustee as its agent in the performance of any duties required of the Employer under the Plan, but such agency shall not be deemed to increase the responsibility or liability of the Trustee under this Declaration. 11.4 The Employer shall have the right at alt reasonable times during the term of this Declaration and for three (3) years after the termination of this Declaration to examine, audit, inspect, review, extract informa- tion from, and copy alt books, records, accounts, and other documents of the Trustee relating to this Declaration and the Trustees' performance hereunder. ARTICLE XII Amendment and Termination 12.1 The Employer reserves the right to alter, amend, or (subject to Section 9.1) terminate this Declaration at any time for any reason without the consent of the Trustee or any other person, provided that no amendment affecting the rights, duties, or responsibilities of the Trustee shall be adopted without the execution of thi~ Trustee to the amendment. Any such amendment shail become effective as of the date provided in the amendment, if requiring the Trustee's execution, or on delivery of the amendment to the Trustee, if the Trustee's execution is not required. 12.2 Upon termination of this Declaration and upon the satisfaction of ali liabilities under the Plan to provide such benefits, any amount of Employer contributions, plus accrued earnings thereon, remaining in such separate Accounts must, under the terms of the Plan, be returned to the Employer. ARTICLE Xlll Successor Trustees 13.1 The Employer reserves the right to discharge the'Trustee for any or no reason, at any time by giving ninety (90) days' advance written notice. 13.2 The Trustee reserves the right to resign at any time by giving ninety (90) days' advance written notice to the Employer. t3.3 In the event of discharge or resignation of the Trustee, the Employer may appoint a successor Trus- tee who shall succeed to all rights, duties, and responsibilities of the former Trustee under this DecIara- tion, and the terminated Trustee shall be deemed discharged of all duties under this Declaration and responsibilities for the Trust. ARTICLE XlV Limited Effect of Plan and Trust Neither the establishment of the Plan and the Trust or any modification thereof, the creation of any fund or account, nor the payment of any be.nefits, shall be construed as giving to any person covered under the PIan or other person any legal or equitable right against the Trustee, the Administrator, the Employer or any officer or employee thereof, except as may otherwise be expressly provided in the Plan or in this Declaration. ARTICLE XV Protective Clause Neither the Administrator, the Employer, nor the Trustee shali be responsible for the validity of any con- tract of insurance or other arrangement maintained in connection with the Plan, or for the failure on the part of the insurer or provider to make payments provided by such contract, or for the action of any per- son which may delay payment or render a contract void or unenforceable in whole or in part. 11 VANTAGECARE RETIREMENT HEALTH' SAVINGS PLAN iN WITNESS WHEREOF, the Employer and the Trustee have executed this Declaration by their respective duly authorized officers, as of the date first hereinabove mentioned. EMPLOYER: By:,~ Title: TRUSTEES: By:. Title: By: Title: By:. Title: AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET November 4, 2003 Materials Management Kathy DuBose, Fiscal and Municipal Services Questions concerning this acquisition may be directed to Jim Coulter 349-7194 SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding an annual comract for the purchase of water and sewer parts for the City of DeNon Warehouse; providing for the expenditure of funds therefore; and providing an effective date (Bid 3080-Water and Sewer Supplies for Warehouse invemory stock awarded to Hughes Supply in the annual estimated amoum of $600,000). BID INFORMATION This bid is for items that are stocked in the Warehouse for ease of accessibility and will be used by the Water and Sewer Departmems for their daily operations in repair and maimenance of their systems. RECOMMENDATION We recommend that this bid be awarded to the lowest responsible bidder, Hughes Supply, in the estimated amoum of $600,000. We are recommending the lowest overall bidder for the full list of items to enable us to take advamage of delivery priorities, improved ordering efficiency and overall cost savings. PRINCIPAL PLACE OF BUSINESS Hughes Supply Sherman, TX ESTIMATED SCHEDULE OF PROJECT This is an annual comract, which will begin November 4, 2003 and run through November 4, 2004 with the option to renew for an additional year, comingem upon pricing remaining the same. FISCAL INFORMATION The items in this bid will be funded out of the Warehouse Working Capital accoum and charged back to the using department. Agenda Information Sheet November 4, 2003 Page 2 Attachment 1: Tabulation Sheet 1-AlS-Bid 3080 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent iiiiiiiiiiiiiiiiiiiiii~ o ,._ ~ :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: iiiiiiiiiiiiiiiiiiiiii~ 5 ~z z :::::::::::::::::::: :::::::::::::::::::: ~ :::::::::::::::::::: :::::::::::::::::::: x X o ~ ~ ~ 0 ~ ~ E :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: ~ ~ ~ ~ ~ o ~ o ~ i ~ o ~ o ~ z z z z z z z z :::::::::::::::::::: ~ :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: ~ ~ :::::::::::::::::::: ::::::::::::::::::::= ~ ~ :::::::::::::::::::: ~ ~ :::::::::::::::::::: :::::::::::::::::::: Z o o o o o o o o o o o ~ z z z z z z z z z z 0 0 ~ ~ R :::::::::: :::::::::: :::::::::: :::::::::: :::::::::: :::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::: 0 ~ Z Z Z Z Z Z Z Z Z Z Z ~ · :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::: :::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: ~ 0 W ~ W :::::::::::::::::: .~ ~ ~ ~ ~ ~ ~ ~ ~ ~ W W ~ ~ ~~ ~ ~ ~ ~ 0 0 0 0 iiiiiiiiiiiiiiii~ '~ ~ ~x :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: o ~ z z z z z z z z z z ;;;;;;;;;;;;;;;;;;~ 0 0 ;;;;;;;;;;;;;;;;;;;; "~ :::::::::::::::::: : i~i~i~i~i~i~i~i~i~i~i~i~i~ ~- "~ b ,~ S ~- ~iii~iii~iii~iii~iii~iii~ ~ ~_ :::::::::::::::::::: ,,._ :::::::::::::::::::: X X X X ::::::::::::::::::~ ~o~~ ~ ~ ~o~ ~ ~ ~ ~ ~ ~ ~ ~- ~- Z Z Z 0 0 (.0 0 0 0 0 0 0 0 ('3(.3 0 0 0 ~ ~ ~ ~ ~ ~ ~ o ~ ~ ~ o ~ ~ ~ ~ ~ o 0 ~ Z Z Z Z Z Z Z Z Z Z Z ~ o - o ~ z z z z z z z z z z X X X X cO 0 0 0 0 0 0 0 0 0 (.O (.O (.O (.O (.O (.O (.O (.O (.O 0 ~ Z Z Z Z Z Z Z Z Z Z Z ..~ · :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::: ~q ~ ~ ~ ::::::::::::::::::::: ~ :::::::::::::::::::: :::::::::::::::::: ~ ~ :::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: . , ~ ~ :::::::::::::::::::: ~ X X X :::::::::::::::::::: :::::::::::::::::::: X ~ ~ 0 o ~ :~::~::~::~::~::~:~ ~ ~ o - ~ _ z _ z _ z _ z z ~ ~ ~ o =~ ~::::::::::::::: :::::::::::::::::: ~ ~ ~ ::>::::m: >::::m:: :>::::m: >::::m:: :>::::m: :::::::::::::::::: 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 ~ Z Z Z Z Z Z Z Z Z Z ~ ~ w w w w w w w w w o o o o o o o o o o ~ X , 0 0 0 0 0 ~0 ~ ~ Z Z Z Z Z 0 ~ Z Z Z Z Z ~?~?~?~?~?~z ~ :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: :::::::::::::::::::: 0 0 0 0 o w w w w ::::::::::::::::::c > > > > > 0 0 0 0 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE PURCHASE OF WATER AND SEWER PARTS FOR THE CITY OF DENTON WAREHOUSE; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 3080-WATER AND SEWER SUPPLIES FOR WAREHOUSE INVENTORY STOCK AWARDED TO HUGHES SUPPLY IN THE ANNUAL ESTIMATED AMOUNT OF $600,000). 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 1. 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 the City Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: BID ITEM NUMBER NO VENDOR AMOUNT 3080 1-386 Hughes Supply 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, 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 , 2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID 3080 Exhibit A BID # 3080 - Water and Sewer Parts Hughes Supply Principle Place of Business: Sherman, TX ANGLE STOP 2" PK JOINT TO 2 670-69-006 FLANGE $56.90 BOX VALVE RISER 1" W/SET 4 89O-4O-O35 SCREW $40.99 6 890-40-050 BOX, WATER METER 34-B LONG $34.00 BOX, WATER METER LID 34A & 8 890-40-025 34B BOX .10 890-40-100 BOX, WTR METER 548-A $'109.74 .12 670-44-295 CLEANOUT W/PLUG 6" $8.512 .14 670-37-060 CONNECTOR WATER .1 .1/2" PJ-PJ $.16.412 .16 670-37-050 CONNECTOR WATfiR ~" PO-PO $5.4C ~8 ~70-37-350 CO~fiCTOR WATfiR 2" P0-P0 $22.~C CO~fiCTOR WATfiR 3/4" PK-PK- 20 ~70-37-020 ~0 $4.~ 22 ~70-43-2~0 COUPkI~G BRASS ~" - [fiMAkfi $~.2C 24 ~70-37-2s0 COUPkI~G BRASS,~ ~/2" [fiMAkfi $2.4S 2~ ~70-37-300 COUPkI~G BRASS,2" [fiMAkfi $3.~7 COUPkI~G COMPRfiSSIO~ ~ ~/4" 28 ~70-43-~0 X 5" - BRASS $~0.5C Page 1 of 14 Exhibit A BID # 3080 - Water and Sewer Parts Hughes Supply Principle Place of Business: Sherman, TX COUPLING COMPRESSION 2" X 5" 30 670-43-200 BRASS $26.70 32 890-45-020 COUPLING METER 2 BOLT 1 1/2" $24.2C COUPLING METER EXPANSION 34 890-45-000 3/4" $5.1 36 670-37-420 ELBOW 1.5" X 90 BRASS $2.8fi 38 670-37-450 ELBOW 2" X 90 BRASS $4.65 GASKET 10 T SLEEVE SIDE 40 670-58-303 GASKET $5.55 G~E~ ~2 ~ SEEE~E SIBE 42 67o-58-62o GASKET 12 TAPPING SLEEVE $72.0C 44 67o-58-54o GASKET 4 TAPPING SLEEVE $24.00 G~S~E~ B ~ SEEE~E SIBE 46 67o-58-56o GASKET 6 TAPPING SLEEVE $24.00 48 67o-58-69o GASKET FULLFACE RED RUB 10 $1 50 670-58-640 GASKET FULLFACE RED RUB 4 0.75 52 210-62-200 GASKET, RAM NEK FLEXIBLE 42" $6.95 54 670-36-040 INSERT STIFFENER 2" $1.212 56 890-46-050 KEY, WATER METER BOX FORD $4.21 58 890-45-610 METER RESETTER COPPER 15" $24.90 Page 2 of 14 Exhibit A BID # 3080 - Water and Sewer Parts Hughes Supply Principle Place of Business: Sherman, TX 60 670-37-630 NIPPLE 1 1/4" ALLTHREAD $1.29 62 670-37-620 NIPPLE 1" ALLTHREAD $0.89 64 670-37-700 NIPPLE 1" X 4" $1.812 66 670-37-720 NIPPLE 1.5" X 2" $1 68 670-37-600 NIPPLE 1/2"ALLTHREAD $0.47 70 670-37-750 NIPPLE 2"X4" $3.9S 72 670-37-610 NIPPLE 3/4"ALLTHREAD $0.63 74 670-37-670 NIPPLE 3/4" X 4" $1.28 76 890-45-140 NIPPLE METER 1" X 2 1/2" $3.98 $~24 78 890-45-160 NIPPLE METER 1" X 8 1/2" $9.0~ 80 8~0-45-~5 ~lPPkfi MfiTfiR3/4"X3" $3.~ 82 ~70-37-740 ~, 2"X2" $2.5C 84 ~70-37-800 PkUG BRASS ~/2" $0.~fi 8~ ~70-37-S02 PkUG BRASS 3/4" Page 3 of 14 Exhibit A BID # 3080 - Water and Sewer Parts Hughes Supply - Principle Place of Business: Sherman, TX 88 670-37-910 REDUCER BUSHING 1 1/2"X1"-I $1.70 90 670-37-915 REDUCER BUSHING 1 1/4"X1"- I $1.38 92 670-37-880 REDUCER BUSHING 1"X3/4"- I $.88 94 670-37-960 REDUCER BUSHING 2"Xl 1/2"- I $2.5~ 96 670-37-920 REDUCER BUSHING 2"X1"- I $2.99 ~8 ~70-37-870 R~DUC~R BUSHING 3/4"X~/2"- I $0.~C ~00 ~70-37-200 R~S~TT~R COPPER 5/8"X 3/4" $22.~C ~02 ~70-37-204 R~S~TT~R,COPP~R, 2 X ~8,, $282.0C ~04 ~70-0~-020 SfiAkfiR MA~HOkfi $24.8C ~0~ ~70-~-005 STOP, A~Gkfi MfiTfiR ~" P.O. $~3.~2 ~08 ~70-~-002 STOP, A~Gkfi MfiTfiR 3/4" P.O. $~0.2~ ~0 ~70-~-550 STOP, CURB ~" I-I $2~.0C ~2 ~70-~-400 STOP, CURB 3/4" I-I $~3.7fi ~4 ~70-38-040 Tfifi, BRASS ~" $2.~S ~ ~70-38-~00 Tfifi, BRASS2 $~.3C Page 4 of 14 Exhibit A BID # 3080 - Water and Sewer Parts Hughes Supply Principle Place of Business: Sherman, TX 118 670-38-060 TEE, BRASS, 1 1/4 $2.9C 120 670-38-260 UNION BRASS 1 1/2 $6.0C 122 670-38-220 UNION BRASS 1" $3.512 124 670-70-080 VALVE GATE 1 1/2" $25.4C 126 670-70-040 VALVE GAT~ ~" $~4.37 ~28 ~70-70-~50 VAkV~ GATfi 2" W/~UT I-I $~23.4fi VAkVfi GATfi Fk 4" W/~UT W/O ~30 ~70-S2-020 ACCfiSSORES $202.32 VAkVfi GATfi Fk. 3" ~32 ~70-S2-000 W/O ACCfiSSORES $~80.5~ VAkVfi, BAkk 3/4-~ Fk-lP W/PAD ~34 ~70-~-~50 WInG $~7.~C ~3~ ~70-~-007 VAkVfi, DOUBkfi CHfiCK 2" $~.0C ~38 ~70-~-750 VAkVfi, BAkk MfiTfiR 2" $72.5C Bfi~D, DUCTIkfi ~0"X 22 ~/2 CAST ~40 ~70-40-500 IRO~ $50.4C Bfi~D, DUCTIkfi ~2"X 22 ~/2 CAST ~42 e70-40-550 IRO~ $e8.7C BEND, DUCTILE 6" X 22 1/2 CAST 144 670-40-400 IRON $23.70 BEND DD~I~E B~ ~ ~5 ~AS~ Page 5 of 14 Exhibit A BID # 3080 - Water and Sewer Parts Hughes Supply - Principle Place of Business: Sherman, TX BEND, DUCTILE 8" X 22 1/2 CAST 146 670-40-450 IRON $36.60 148 670-44-050 BEND, PVC, 22 1/2 X4" BXB $2.66 .1§0 670-44-060 BEND, PVC, 22 .1/2 X 6" BXS $4.77 .1§2 670-44-000 BEND, PVC, 45 X4" BXS $2.29 .1§4 670-44-070 BEND, PVC, 45 X 8" BXS $.13..17 '156 670-82-174 BOkT SIlT FOR ~2" MO. VAkVfi $4.8C * 24 ~58 ~70-82-~70 BOkT SIlT FOR 4" MO. VAkVfi $2.4C ~0 ~70-82-~7~ BOkT SIlT FOR ~" MO. VAkVfi $3.~C ~2 ~70-82-~72 BOkT SIlT FOR 8" MO. VAkVfi $3.~C ~4 8~0-40-0~0 BOXVAkVfi fiXTfi~SIO~ 24" $22.~4 ~ 8~0-40-000 BOX, VAkVfi BASIl $~3.5~ ~8 8~0-40-032 BOX, VAkVfi TOP SfiCTIO~ ~" $~7.04 ~70 ~70-52-2~0 CkAMP FUkk CIRCkfi ~0" X ~5" $~0.~2 ~72 ~70-52-~0 CkAMP FUkk CIRCkfi ~2" X 7.5" $3~.7S ~74 ~70-52-050 CkAMP FUkk CIRCkfi 2" X 7.5" $20.~C Page 6 of 14 Exhibit A BID # 3080 - Water and Sewer Parts Hughes Supply Principle Place of Business: Sherman, TX 176 670-52-200 CLAMP FULL CIRCLE 4" X 15" $41.20 178 670-52-220 CLAMP FULL CIRCLE 6" X 15" $42.76 '180 670-52-204 CLAMP FULL CIRCLE 8" X '15" $47.212 '182 670-52-000 CLAMP, LEAK 2" X 3" $3.9C 184 670-44-730 CLAMP, SNAP, 48" $1.712 ~8~ ~70-52-300 CkAMP,FUkk CIRCkfi,~"X~5" $~3~.0C ~88 ~70-52-440 CkAMP,RfiPAIR,~ ~/2" $3.4S ~0 ~70-52-400 CkAMP,R~PAIR,~" $3.2S ~2 ~70-52-4~0 CkAMP,RfiPAIR,2" ~4 ~70-58-800 GASKfil M.0. ~0 $~.27 ~ ~70-5S-740 GASKET M.0.4 $.058 ~8 ~70-SS-TS0 GASKET M.0.8 $~.~ 200 ~70-5S-030 202 ~70-58-000 GkA~D KIl M.0.4" $4.7fi Page 7 of 14 Exhibit A BID # 3080 - Water and Sewer Parts Hughes Supply - Principle Place of Business: Sherman, TX 204 670-58-020 GLAND KIT M.J. 8" $7.00 206 340-62-030 HYDRANT COLLISION REPAIR KIT $79.7C HYDRANT EXTENSION 12" 208 340-63-012 WATEROUS $192.28 HYDRANT EXTENSION 18" OLD 210 340-63-085 STYLE $268.2S HYDRANT EXTENSION 24" OLD 212 340-63-140 STYLE $303.97 HYDRANT EXTENSION 36" OLD 214 340-63-180 STYLE $475.57 HYDRANT EXTENSION 6" 216 340-63-006 WATEROUS $155.77 HYDRANT 2~8 340-~3-050 STYkfi $~8.2~ 220 340-~2-0~0 HYDRANT MAI~ VAkVfi KIT $~8.77 HYDRANT MAI~ VAkVfi- 222 340-~3-200 WATfiROUS HYDRANT REPAIR KIT-BREAK 224 340-63-210 FLNG $75.27 22~ 340-~0-000 HYDRA~T, FIR~ 2.5' BURY $8~7.~fi 228 340-~0-~00 HYDRA~T, FIR~ 3.5' BURY $84~.~ 230 340-~0-200 HYDRA~T, FIR~ 5' BURY $8~.3~ 232 8~0-30-030 MA~HOkfi, RISfiR 400X24 3" $7~.7fi Page 8 of 14 Exhibit A BID # 3080 - Water and Sewer Parts Hughes Supply - Principle Place of Business: Sherman, TX 234 670-40-750 MEG-A-LUG GLAND KIT 10" C-900 $62.50 236 670-40-650 MEG-A-LUG GLAND KIT 6" C-900 $25.0C 238 670-44-350 PLUG,PUSH IN FOR '12" DUCTILE $37.2C 240 670-44-345 PLUG,PUSH IN FOR 8" DUCTILE $21.60 SADDEE TA~ SADDLE,TAP,'10"X2" DBL STRAP 242 670-52-980 BRASS $64.612 SADDkfi,TAP,~2"X~" DBk STRAP 244 ~70-52-~ BRASS $~3.2fi SABBEE TA~ SADDkfi,TAP,~2X3/4" DBk STRAP 24~ ~70-52-~0 BRASS $~3.2fi SADDkfi,TAP,~"X~" DBk STRAP 248 ~70-52-~ BRASS $~57.0C SADDkfi,TAP,~"X2" DBk STRAP 250 ~70-52-~2 BRASS $~84.0C 252 ~70-52-SSS SADDkfi,TAP 20"X~" CO~C CYk $~5~.2C SADDkfi,TAP,20"X~" DBk STRAP 254 ~70-52-~3 BRASS $225.0C SABBEE SADDkfi,TAP,4"X~" DBk STRAP 25~ ~70-52-S00 BRASS $30.3C SADDkfi,TAP,4"X3/4" DBk STRAP 258 ~70-52-700 BRASS $30.3C SABBEE SADDkfi,TAP,~"X2" DBk STRAP 2~0 ~70-52-SS0 BRASS $44.~C Page 9 of 14 Exhibit A BID # 3080 - Water and Sewer Parts Hughes Supply - Principle Place of Business: Sherman, TX SADDLE,TAP,8"X1 1/2" DBL STRAP 262 670-52-940 BRASS $46.60 SADDLE,TAP,8"X2" DBL STRAP 264 670-52-950 BRASS $50.70 SAD~EE TA~;Sii~i DBE S~A~ 266 670-39-310 SLEEVE, SOLID MJ 10" X 12" $41.70 268 ~70-3~-220 SkfifiVfi, SOklD MO 4" X ~2" $~7.~C 270 ~70-3~-2~0 SkiVVY, SOklD MO ~" X ~2" $25.2C SkfifiVfi, TAPPING ~0" X4" SS MO 272 ~70-3~-700 OUTk~T $354.57 SkfifiVfi, TAPPING ~0" X 8" SS MO 274 ~70-3~-S00 OUTk~T $4~.4~ SkfifiVfi, TAPPING ~2" X4" SS MO 27~ ~70-3~-S50 OUTk~T $3~5.74 SkfifiVfi, TAPPING ~2" X 8" SS MO 278 670-39-950 OUTLET $550.48 SEEE~E ~A~iNG 8~ ~ ~ S~ M~ SLEEVE, TAPPING 6" X 6" SS MJ 280 670-39-660 OUTLET $318.16 SLEEVE, TAPPING 8" X 4" SS MJ 282 67O-39-55O OUTLET $305.9~ 284 670-69-100 STOP, CORP. I"PJ $13.2~ 28~ ~70-~-050 STOP, CORP. 3/4"PO $8.~C 288 670-44-360 TEE, 12X6X12 ( MJXFLXMJ) $114.24 2~0 ~70-44-430 T~, ~x~x~ (MJXMJXFk) Duplication Page 10 of 14 Exhibit A BID # 3080 - Water and Sewer Parts Hughes Supply - Principle Place of Business: Sherman, TX VALVE FL-MO 10" W/O 292 670-82-520 ACCESSORIES $642.52 VAE~E FB [VlJ ~2ii WI© VALVE FL-MO 6" W/O 294 670-82-500 ACCESSORIES $258.5fi VALVE GATE FL 6" W/O 296 670-82-040 ACCESSORIES $268.9C VALVE GATE MO 10" W/O 298 670-82-140 ACCESSORIES $~42.52 VAkVfi GATfi MO 4" W/O 300 ~70-S2-0S0 ACCfiSSORES $202.32 VAkVfi GATfi MO 8" W/O 302 ~70-S2-~20 ACCfiSSORES $4~.~ 304 ~70-S2-400 ACCfiSSORES $~,237.8fi 30~ ~70-S2-250 ACCfiSSORES $3~0.~ 308 ~70-44-050 Bfi~D, PVC, 22 ~/2 X4" BXB $2.~fi 3~0 ~70-44-0~0 B[~D, PVC, 22 ~/2 X ~" BXS $4.77 3~2 ~70-44-000 Bfi~D, PVC, 45 X4" BXS $2.2~ 3~4 ~70-44-070 Bfi~D, PVC, 45 X 8" BXS $~3.~7 3~ ~70-52-~80 CkAMP,S.S.~2"X3/4" TAP $74.7C 3~8 ~70-52-580 CkAMP,S.S.~"X~" TAP $48.3C Page 11 of 14 Exhibit A BID # 3080 - Water and Sewer Parts Hughes Supply - Principle Place of Business: Sherman, TX 320 670-52-620 CLAMP,S.S.8"XI" TAP $49.9~ 322 285-84-400 MANHOLE 7' $552.412 MANHOLE CONCRETE, GRADE 324 890-30-046 RING6" $45.0C MANHOLE CONCRETE, 326 890-30-043 GRADERING 3" $24.0C 328 890-30-0'10 MANHOLE, LID 400-24 $62.7C 330 890-30-039 MANHOLE, RISER 300X24 1 '1/2" $98.28 332 890-30-038 MANHOLE, RISER 300X24 2" $65.91 334 890-30-035 MANHOLE, RISER 300X24 4" $72.012 336 890-30-040 MANHOLE, RISER 400X24 1" $98.28 338 890-30-033 MANHOLE, RISER 400X24 2" $98.28 340 670-44-750 SADDLE, WYE FLEXIBLE 6" $26.57 342 ~70-44-5~5 ~fi PVC 45 ~0X~0X4 BXBXS $~5.~C 344 ~70-44-520 ~fi PVC 45 4X4X4 BXBXS $5.8fi 34~ ~70-44-540 ~fi PVC 45 ~X~X4 BXBXS $~.~7 348 ~70-44-585 ~fi PVC 45 8XSX BXBXS $43.~C Page 12 of 14 Exhibit A BID # 3080 - Water and Sewer Parts Hughes Supply Principle Place of Business: Sherman, TX Wy~ ~V~ ~ ~8X4 B~B~B 350 670-44-575 VVYE PVC 45 8X8X4 BXBXS $13.61 352 670-44-570 WYE, PVC, 45 6"x6"x6" BxBxB $10.38 353 670-58-660 GASKET, FULL FACE RED RUB. 6" .07~ 355 460-90-000 HOSE, BIB, 1/2" $2.012 357 670-37-2~0 NUT,3/4"SETTER $7.~4 35~ ~70-3~-080 PlP~ CAP MO ~2" $28.2C 3~ ~70-0~-0~0 PlPfi COMPOUND SfiAk $~.0~ $~94 363 670-39-070 PIPE PLUG MJ 10" $23.20 3~5 ~70-3~-0~0 PlPfi PkUG MO ~2" $30.3C 3~7 ~70-3~-050 PlPfi PkUG MO 8,, 3~ ~70-3~-000 PlP~, CAP MO 4" $~.~C 37~ ~70-3~-020 PlPfi, CAP MO ~" $~0.8C 373 ~70-23-~00 PlPfi, COPPfiR TUBING, ~"X~00' $~48.0C 375 ~70-3~-0~0 PlPfi, PkUG M.J. 4" $~.~C 377 ~70-25-320 PlPfi, PVC WATfiR, ~2"X20' DR-~8 $2~.0C Page 13 of 14 Exhibit A BID # 3080 - Water and Sewer Parts Hughes Supply - Principle Place of Business: Sherman, TX 379 670-25-200 PIPE, PVC, WATER, 4"X20' DR-18 $29.80 381 670-25-300 PIPE, PVC, WATER, 8"X20' DR-18 $99.20 RiRE R~ SEWER PIPE, PVC, SEWER, ~2"X~3' PSM 383 ~70-25-~20 SDR35 $~7.~C PIPE, PVC, SEWER, ~"X~3' PSM 385 ~70-25-0~0 SDR35 $1~.9C Page 14 of 14 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET November 4, 2003 Materials Management Kathy DuBose, Fiscal and Municipal Services Questions concerning this acquisition may be directed to Jim Coulter 349-7194 SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding an annual contract for the purchase of cement, lime and aggregate for use by various City departments; providing for the expenditure of funds therefore; and providing an effective date (Bid 3089-Cement, Lime & Aggregate awarded to the lowest responsible bidder for each item in the estimated amount of $2,300,000). BID INFORMATION This bid is for the annual supply of lime and aggregate utilized by various City departments in the maintenance and new construction of streets, utility lines, street cuts and backfilling operations. These materials are ordered on an as needed basis. RECOMMENDATION We recommend award of this bid to the lowest responsible bidder for each item as listed on Attachment 1. A summary of the recommended items for each vendor is listed below. Item# Vendor Amount 1,3-7,11a, 14a, 17a 12a, 13a, 15,15a, 18a, 19a 11,12,14,17,18,20,21,22,23 8,8a, 9,9a, 10,10a, 13,16,16a, 19 2 24,25 TXI B&B Sand Company Hanson Aggregates Tim Beaty Builders, Inc. Ash Grove Cement Co. Chem Lime Company Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A PRINCIPAL PLACE OF BUSINESS Ash Grove Cement Co. Midlothian, TX B&B Sand Company Aubrey, TX Chem Lime Company Fort Worth, TX Hanson Aggregates Dallas, TX Tim Beaty Builders, Inc. Denton, TX TXI Dallas, TX Agenda Information Sheet November 4, 2003 Page 2 ESTIMATED SCHEDULE OF PROJECT This is an annual agreement with an option to renew for an additional year if agreed upon by both parties. FISCAL INFORMATION Funding for each individual order will come from the appropriate budget or bond account of the using department. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Tabulation Sheet 1-AlS-Bid 3089 BID # 3089 Attachment 1 DATE: 10/14/03 Cement, Lime & Aggregate Annual Bid SECTION A 800 Type I bulk cement 2 No Bid No Bid No Bid $102.35 $93.28 $88.69 No Bid Tons delivered to job site 7,000 3 8,00~-v 5 Sack Mix No Bid No Bid No Bid $66.70 $58.00 No Bid No Bid ~0bid 5 I Sack Mix No Bid No Bid No Bid $51.50 $46.00 No Bid No Bid 3000 PSI W/FLY ASH 20% 7 No Bid No Bid No Bid $65.25 $56.00 No Bid No Bid · ~uc~ ~lme i~ ~pllcable Small koad i~ Applicable ~o Bid ~o Bid ~o Bid ~o Bid ~o Bid ~o Bid ~o Bid Sac~ ~alus~men~ SECTION B 500Cu Top SoiISc~een Field Sand 8a $~.00 No ~id No ~id $~0.50 No ~id No ~id No ~id Yd ~ackfill - Delivered to City ~500 Field Sand (Concrete) 9a No ~id No ~id No ~id $7.00 No ~id No ~id No ~id Cu Yd Delivered to City ~0 r, JO Bi~ ~000 Pit Sand for Concrete Hix - ~0a $~4.00 No ~id No ~id $9.00 $~2.52 No ~id No ~id Tons Delivered to City 800 ~. Sand ~or Concrete lla $12,50 No Bid No Bid $17.00 $9.02 No Bid No Bid TONS Hixture- Delivered to City 300 Concrete A~re~ate 3/4" - 12a $13.00 ~o Bid ~o Bid $14.82 ~o Bid ~o Bid ~o Bid TO~S ~ 4 Rock - Delivered to City BID # 3089 Attachment 1 DATE: 10/14/03 Cement, Lime Ex Aggregate Annual Bid B EX B Sand Hanson Hanson Tim Beaty TXI Ash Grove Chem Lime Principle Place of Business: Aubrey, TX Irving, TX OKC, OK Denton,TX Dallas, TX Midlothian, FW, TX TX 13 NOBid Concrete Aggregate 3/8" 3OO 13a Tons Down Rock - Delivered to $11.75 No Bid No Bid $13.00 $15.02 No Bid No Bid City 14a 1,000 Type A - Grade I Flexible No Bid No Bid No Bid $12.00 $9.02 No Bid No Bid TONS Base - Delivered to City Crushed Stone #6-20 (for 1,000 ice EX snow control of city $6.50 No Bid No Bid $13.32 No Bid No Bid No Bid 15a Tons streets, Delivered to city Screened Sand - Delivered ~6a ~2,000 $~5.00 No Bid No Bid $7.00 No Bid No Bid No Bid to City ~ ~/Z ~ock~ L)~estone ZOO ~7a Tons (washed & screened) - $~5.00 No Bid No Bid $~4.82 $~0.74 No Bid No Bid Delivered to City ~00 4" - 8" Rip Rap Limestone - ~8a $~5.00 No Bid $~6.25 $~6.50 No Bid No Bid No Bid Tons Delivered to City SOO 3/4" Rock, kimestone Utility 19a $12.S0 ~o Bid ~o Bid $14.8S ~o Bid ~o Bid ~o Bid Tons Stone - Deliver to City 100 21 TO~S 24" Rip Rap kimestone $26.00 ~o Bid $16.7S $20.00 ~o Bid ~o Bid ~o Bid 100 23 Tons 36" R~p Rap L~mes~one $28.00 No B~d $16.~5 $22.00 No B~d No B~d No B~d 200 24 Tons Bulk Type A Hydrated Lime No Bid No Bid No Bid $98.90 No Bid No Bid $85.00 Max Truck Delivery-Tons No Bid No Bid No Bid No Bid No Bid No Bid 27 TONS Minimum Truck Delivery No Bid No Bid No Bid No Bid No Bid No Bid 8 Tons Shipment 3 Days N/A 7 Days 2 Days 1-3 Days 3 Days 2 Days ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE PURCHASE OF CEMENT, LIME AND AGGREGATE FOR USE BY VARIOUS CITY DEPARTMENTS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 3089-CEMENT, LIME & AGGREGATE AWARDED TO THE LOWEST RESPONSIBLE BIDDER FOR EACH ITEM IN THE ESTIMATED AMOUNT OF $2,300,000). 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 1. 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 the City Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: BID ITEM NUMBER NO VENDOR AMOUNT 3089 1, 3-7, 1 la, 14a, 17a TXI Exhibit A 3089 12a, 13a, 15, 15a, B&B Sand Company Exhibit A 18a, 19a 3089 11, 12, 14, 17, 18 Hanson Aggregates Exhibit A 20, 21, 22, 23 3089 8, 8a, 9, 9a, 10, 10a Tim Beaty Builders, inc. Exhibit A 13, 16, 16a, 19 3089 2 Ash Grove Cement Co. Exhibit A 3089 24, 25 Chem Lime 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 ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID 3089 BID # 3089 Exhibit A DATE: 10/14/03 Cement, Lime & Aggregate Annual Bid B & B Sand Hanson Hanson Tim Beaty TXI Ash Grove Chem Lime Principle Place of Business'. i i~ TX SECTION A 800 Type I bulk cement 2 $88.69 Tons delivered to job site R~ad~ r4i~ 7,000- 3 8 000 5 Sack Mix $58.00 S 1 Sack Mix $46.00 3000 PSI W/FLY ASH 20% 7 $s6.oo Small Load i~ Applicable SECTION B 500Cu Top Soil Screen Field Sand - 8a $~0.50 Yd Backfill - Delivered to City 1500 Field Sand (Concrete) 9a $7.00 Cu Yd Delivered to City 1000 Pit Sand ~or Concrete Mix - 10a $9.00 Tons Delivered to City 800 M~g. Sand ~or ~oncr~ ~a $9.02 TONS Mix~ur~ - D~liwr~d ~o ~i~y 300 Concrete A~re~ate 3/4" - 12a $13.00 TO~S ~ 4 Rock - Delivered to City BID # 3089 Exhibit A DATE: 10/14/03 Cement, Lime & Aggregate Annual Bid B & B Sand Hanson Hanson Tim Beaty TXI Ash Grove Chem Lime Principle Place of Business: Aubrey, TX Irving, TX OKC, OK Denton,TX Dallas, TX Midlothian, FW, TX TX Concrete Aggregate 3/8" 3OO 13a Tons Down Rock - Delivered to $11.75 City 1,000 Type A - Grade 1 Flexible $9.02 14a TONS Base- Delivered to City Crushed Stone #6-20 (for 1,000 ice & snow control of city $6.50 1Sa Tons streets, Delivered to dry Screened Sand - Delivered 16a 12,000 $7.00 to City 200 1 1/2 Rock, Limestone (washed & screened) - 17a Tons Delivered to City 100 4" - 8" Rip Rap Limestone - 1Sa $15.00 Tons Delivered to City SOO 3/4" Rock, Limestone Utility 19a $12.50 Tons Stone - Deliver to City 100 21 TONS 24" Rip Rap Limestone $16.75 100 23 Tons 36" Rip Rap Limestone $16.7S S~Cti~n C 200 24 Tons Bulk Type A Hydrated Lime $85.00 Max Truck Delivery-Tons 27 TONS Minimum Truck Delivery 8 Tons Shipment 3 Days N/A 7 Days 2 Days 1-3 Days 3 Days 2 Days AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: November 4, 2003 Materials Management Questions concerning this acquisition may be directed to Vance Kemler 349-8044 ACM: Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding a contract for the purchase of a Landfill Compactor for the City of DeNon Solid Waste Division; providing for the expenditure of funds therefore; and providing an effective date (Bid 3067-Landfill Compactor awarded to A1-Jon inc. in the amoum of $456,854). BID INFORMATION The recommendation for this bid is the result of a "Best Value" approach to the acquisition of a landfill compactor. Best Value allows for important considerations other than the lowest responsible bidder, in this instance, the evaluation committee considered price, buy-back offer, weight, compliance with recommended specifications, service and projected maimenance costs. The evaluation committee consisted of the staff members from Fleet Services, Solid Waste, Streets/Drainage, and Purchasing. This new landfill compactor will replace a 1992 compactor which was sold to the highest bidder. The new equipmem will be utilized in the daily operations on the landfill refuse working face and in other landfill related construction operations. It is powered by a Tier ii compliant diesel engine and is equipped with Caren high compaction steel wheels. Utilization of the buy-back options will be at the discretion of the City of DeNon and determined based upon machine performance and operating cost. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) The Public Utility Board approved this item at its October 20, 2003 meeting by a vote of 4-1. RECOMMENDATION We recommend award of this bid to A1-Jon Inc. in the amount of $456,854 and that the Prevemive Maimenance Agreemem be rejected. The City of DeNon Fleet Services Division will provide these services. Agenda Information Sheet November 4, 2003 Page 2 PRINCIPAL PLACE OF BUSINESS Al-Jori Inc. Ottumwa, IA ESTIMATED SCHEDULE OF PROJECT Delivery of this equipment can be made within 120 days from receipt of an order. FISCAL INFORMATION The landfill compactor will be funded using 660018583.1355.30100. Attachment 1 :Bid Tabulation Attachment 2: Draft PUB Minutes 1-AlS-Bid 3067 short-term bonds capital account number Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1 BID # 3067 DATE: 8/28/03 LANDFILL COMPACTOR Make: Caterpillar Bowag Al-.lon Base Bid with B-year/6,000 hour total machine I $477,349.00 $452,000.00 456,854.00 warranty, exclusive of wear items 3 b) Machine Buy-Back @ 36 $142,S00.00 $103,000.00 $17S,000.00 months w/6000 hours 5 Option 1 - Equipment Service Options 7 500 hours $922.00 $2,130.00 $925.00 9 1000 hours $1,425.00 $2,027.00 $2,300.00 11 1500 hours $922.00 $1,500.00 $925.00 13 2000 hours $2,898.00 $3,427.00 $2,650.00 15 2000 Hour PM Total $14,594.00 $15,144.00 $10,830.00 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 Attachment 2 DRAFT CITY OF DENTON, TEXAS PUBLIC UTILITIES BOARD MEETING MINUTES October 6, 2003 9:00 A.M. After determining that a quorum of the Public Utilities Board of the City of Demon, Texas was present, the Public Utilities Board convened into an Open Meeting on Monday, October 6, 2003, at 9:00 a.m. in the Service Cemer Training Room, City of Demon Service Cemer, 901-A Texas Street, Denton, Texas. PRESENT: John Baines, Yolanda Guzman, George Hopkins, Charldean Newell, Dick Smith and Don White EX OFFICIO MEMBERS Howard Martin, ACM/Utilities EXCUSED: Bill Cheek ITEMS FOR INDIVIDUAL CONSIDERATION: 2) Consider approval of the Landfill Compactor Bid Evaluation Committee's recommendation to award the purchase of a Landfill Compactor, Bid #3067, to AI- Jon Incorporated of Ottumwa, Iowa in the amount of $456,854. Vance Kemler, Director of Solid Waste presented this item. Kemler informed the Board that in August of 2003, the City issued a public best value bid invitation, and pre-bid meeting for vendors. Three vendors attended the pre-bid meeting and expressed interest in bidding: A1-Jon, Inc., Continental Equipment Co., and Holt Caterpillar. A seven-member Landfill Compactor Bid Evaluation Committee reviewed the best value bid proposals, submitted by three vendors, in order to provide a purchase recommendation based on line item #1, which is the base price of the equipment without the optional GPS equipment. Kemler reminded the Board that Board Member Bill Cheek had voiced his concerns regarding the bid at the last PUB meeting. Kemler informed the Board that Purchasing Agent, Tom Shaw, met with Cheek prior to today's meeting to address his concerns. Cheek had stated that, if you compare the Holt Caterpillar bid, including their option #1 bid, to the A1-Jon, Inc. bid, including their option #1 bid, the total price would make the Holt Caterpillar bid lower than A1-Jon's. Kemler explained to the Board that purchasing regulations state that one cannot add the options to compare the two bids. Had the City established a base bid with options and alternative bids, the committee could have evaluated the base bid and alternative bids. Kemler stated it is difficult to re-bid the same equipment specifications due to the fact that the bid prices are now public record. Page 1 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 Another of the Board's concerns involved purchasing the GPS computer software to improve landfill operations. Holt Caterpillar would not sell their GPS equipment to the City, even though it would cost substantially less than the equipment offered by A1-Jon. Staff has since been informed that Holt Caterpillar would sell the GPS equipment for approximately $69,000, plus the cost of installation. Kemler informed the Board that, based on the recent information regarding the GPS equipment, staff still recommends accepting A1-Jon's bid and proposes to install the GPS equipment on the A1-Jon compactor, as recommended by the committee. White asked if the compactor was tied to the Operations and Maintenance (O&M) budget or cell cost. Kemler responded that it is funded by bond funds and depreciated yearly in the Annual Solid Waste Budget. Martin explained that it would be in line item short term fixed cost. Board Member John Baines asked why the equipment would be considered short-term other debt. Martin explained that there are a variety of fixed costs. Long-term costs are capital purchases associated with site-life, which are used for the life of the landfill, and financed over 20 years. Equipment, such as the compactor, is financed over the life of the equipment and is considered short-term cost. Hopkins expressed his concern with "best value" pricing. He explained that he was overwhelmed by the fact that the City could not consider the different elements of the bid that determine the price of the equipment. Kemler explained that the bid price is only one component of the evaluation criteria and pointed to the possibility that on bigger equipment, repair and other factors that add to life-cycle costing may have a greater impact. Hopkins then asked if the maintenance issues were considered in the best value. Kemler stated that maintenance and service were considered. Hopkins asked what information could staff provide that substantiated A1-Jon, Inc. would be cheaper, or at least no more expensive, than Holt Caterpillar from a maintenance standpoint. Kemler explained that staff categorized the maintenance cost in two areas and required front-end pricing for preventive maintenance service. The cost (Equipment Service Options-line 5-14 of the bid) was then segregated from the rest of the bid to determine the cost for up to 6,000 hours of preventive maintenance from each bidder. Hopkins then commented that if you consider the A1-Jon buy-back after 18 months the City would still have had to pay a significant cost for the piece of equipment. If we sold it back after 48 months it would still have cost the City $346,000 for the compactor. Hopkins stated that one would expect the equipment to last 7-10 years. He advised the Board that the buy-back concept means if the A1-Jon equipment works, that is fine, if it does not work, the City will sell it back, and it would put the City at a considerable economic disadvantage over Holt Caterpillar. Smith stated the if the City was going to buy the GPS equipment regardless of which compactor was purchased, how was that taken into account in determining which piece of equipment staff would recommend. Kemler responded that due to State purchasing requirements, the committee could not consider the option #1 price in the best value evaluation. He explained that if staff had included the GPS equipment as part of the base bid, it would appear to be a proprietary item and no other vendor would have been able to provide it. Page 2 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 Smith asked if the buy-back hours at 48 months with 8000 hours of equipment service is a fair estimate. Kemler informed him that 8000 hours of service over a 4-year period is very close to staff's estimation of the actual service time. Smith asked who was on the committee that analyzed the bid. Kemler informed the Board that the Landfill Manager, David Dugger, Tom Shaw, Purchasing Agent, Ozzie Tate, Fleet Services Manager, Randy Tunnell, Heavy Equipment Mechanic, Cary Tower, Fleet Services Superintendent, and Keith Gabbard, Superintendent Streets, Drainage and Traffic, and himself were on the committee. White wanted to know how many hours of service was associated with the 1985 Cat 973, the 1988 Cat 623 scraper and the 1992 Caterpillar 816 compactor. Kemler stated that the Cat 973 was in service for approximately 10,000 hours and the Cat 816 had approximately 14,000 hours of service. White concluded that with the number of service hours, Holt Caterpillar has proven that it is a dependable piece of equipment. White then asked for a comparison of the weight of the two pieces of equipment. Kemler stated that the Holt Caterpillar compactor weighed 86,000 lbs. and the A1-Jon compactor, which has a Caterpillar engine, weighed 90,300 lbs. Baines asked if staff was satisfied that Cheeks concerns from the last meeting had been addressed. Kemler stated that he felt they had addressed his concerns. Hopkins revealed that he believes the bid process this time was flawed due to the fact that the Board cannot consider the $25,000 difference in the two bids for the GPS equipment. Hopkins stated that the Board should be able to consider all elements of the purchase in connection with the item. Smith wanted to know if there was something the Board was missing regarding the advantages of the best value. Martin responded that it is related to the proprietary issue as explained by Kemler, and staff utilized a base bid to eliminate all proprietary concerns. Hopkins suggested staff work to avoid similar problems with future bids. White commented that staff had demonstrated Holt Caterpillar's reliability by using the old equipment for 14,000 hours before replacing it. He also pointed out that the equipment was used to perform 50% of the landfill compaction function. White moved to deny awarding bid #3067 to A1-Jon, Inc. The motion failed for lack of a second. Baines asked how quickly the Board needed to make their selection. Kemler explained that the deadline is the end of October, and stated an extension of the deadline would require approval from the bidders. Smith commented that he could vote either way on accepting the bid from A1-Jon, Inc. He specified that he made the motion because the committee took the time to evaluate the equipment and he perceives that the committee devoted due diligence on this large purchase. Smith also affirmed that he understands the proprietary issue even though he is in agreement with Hopkins' concerns. Page 3 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Baines wanted to know how accepting the bid from A1-Jon, Inc., would impact the relationship the City maintains with Holt Caterpillar. Kemler commented that other than disappointment over the sales loss, the district manager assured him that Holt Caterpillar would service the new GPS equipment and provide the current level of service for the other equipment. White asked if Holt Caterpillar had ever mounted GPS equipment on an A1-Jon piece of equipment and asked for an explanation of how it is mounted. Kemler said they had not mounted equipment on an A1-Jon vehicle. Hopkins commented that although he was uncomfortable with awarding the bid to A1-Jon, Inc., he did not believe he had enough information to overturn the committee's recommendation. He also stated that, in his perception, considerable effort had been devoted to accepting A1-Jon equipment without enough hard evidence to distinguish the difference between the two pieces of equipment. Smith moved to approve awarding the bid to AI-Jon, Inc., with a second from Baines. The motion passed with Smith, Hopkins, Newell, Guzman in favor of accepting the bid, White voted in opposition, and Baines abstained from voting. The motion passed by a vote of 4-1. Page 4 of 4 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR THE PURCHASE OF A LANDFILL COMPACTOR FOR THE CITY OF DENTON SOLID WASTE DIVISION; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 3067-LANDFILL COMPACTOR AWARDED TO AL-JON iNC. iN THE AMOUNT OF $456,854). 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 1. 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 the City Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: BID NUMBER VENDOR AMOUNT 3067 A1-Jon Inc. $456,854 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 ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID 3067 AGENDA INFORMATION SHEET AGENDA DATE: November 4, 2003 DEPARTMENT: ACM: Utilities Administration Howard Martin, 349-8232 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas authorizing the Mayor to enter into an Interlocal Cooperation Agreement with the cities of Gainesville, Texas and Sherman, Texas for the use of personnel and equipment; authorizing the expenditure of funds therefor; and providing for an effective date. BACKGROUND Recem discussions regarding possible disasters or emergencies and common concerns have been expressed by the three cities regarding the cooperative sharing of personnel and equipment. The proposed agreemem, drafted by the City of DeNon, has already been considered and approved by the City Councils of the Cities of Gainesville and Sherman. The agreemem provides a structure and framework for mutual aid and assistance, to the extent the other cities can provide assistance. Charges for labor shall be billed at the responding City's actual cost for hourly pay, and for overtime, if applicable. Charges for the use of equipmem and transportation shall be billed at the responding City's standard rates and practices in effect at the time the use is requested. OPTIONS Approve the Interlocal Cooperation Agreement. Disapprove the Interlocal Cooperation Agreement. RECOMMENDATION Approve the Interlocal Cooperation Agreement. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Considered and approved by the Gainesville City Council and the Sherman City Council. Unanimously approved by the Denton PUB. FISCAL INFORMATION None. To the extent personnel and/or equipment is available for response, the City of Denton will recover its actual cost. To the extent Denton is in need of the services of the two other cities for personnel and/or equipment, then the measure will also be the actual cost of Gainesville and Sherman. BID INFORMATION None. EXHIBITS: 1. Ordinance 2. Interlocal Cooperation Agreement 3. Public Utilities Board Meeting Minutes Respectfully submitted: Howard Martin ACM/Utilities Prepared by: Michael S. Copeland Utility Attorney S :\Our DocumentsWIiscellaneous\03\ 102103 Council Agenda Memo - Interlocal - 3 Cities.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 CITY OF DENTON, TEXAS PUBLIC UTILITIES BOARD MEETING MINUTES September 15, 2003 9:00 A.M. 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, September 15, 2003, 2003 at 9:00 a.m. in the Service Cemer Training Room, City of Demon Service Cemer, 901-A Texas Street, Denton, Texas. PRESENT: EXCUSED: George Hopkins, Bill Cheek, Charldean Newell, Dick Smith, Don White and Yolanda Guzman EX OFFICIO MEMBERS Michael Conduff, City Manager Howard Martin, ACM/Utilities John Baines 5) Consider approval of the Interlocal Cooperation Agreement to be entered into by and between the Cities of Denton, Gainesville, and Sherman respecting the use of personnel and equipment. Howard Martin, ACM/Utilities presented this item. Martin communicated to the Board that this Interlocal Agreement was being presented to formalize a mutual aid agreement between Gainesville, Sherman and Denton. Martin reported that during emergency situations, this agreement would allow the three cities to share equipment and personnel and establish an instrument to recover cost. Martin reported that the agreement has been passed by the Gainesville City Council and upon approval by the Board will be presemed to Sherman's City Council, with final approval and a signed resolution by the City of Demon City Council as the last step. Hopkins asked staff if there was a down side to the agreement. Martin responded that he could not see a down side to the agreement. Martin continued by saying that the city currently assists its neighbors in emergency situations such as brush cleanup after a storm and the temporary use of solid waste equipment and dumpsters. Martin reiterated that this interlocal agreement would only formalize the process. Cheek asked staff if all three entities would share the cost of any liability. Michael Copeland, Utility Attorney, affirmed that all three entities would share liability. Newell asked staff if there had ever been an occasion for the City of Denton to use services from the other two cities? Martin responded no. Page 1 of 2 EXHIBIT 3 Board Member Don White asked staff if there was a time limit associated with the use of personnel or equipment incorporated into the agreement. Martin informed the Board that in the past, 2-4 days was the maximum time associated with an occurrence. Martin stated that equipment or personnel could not be loaned out indefinitely, as this would affect the City's ability to provide service to its citizens. Smith moved to approve the agreement, with a second from Cheek. The motion was approved unanimously. Page 2 of 2 ORDINANCE NO. 2003- AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE MAYOR TO ENTER 12N'TO AN INTERLOCAL COOPERATION AGREEMENT WITH THE CITIES OF GAINESVILLE, TEXAS AND SHERaMAN, TEXAS FOR THE USE OF PERSONNEL AND EQUTPMENT; AUTHORIZING TIlE EXPENDITURE OF FUNDS THEREFOR; AND PROVDING AN' EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the Mayor is hereby authorized to execute an "Interlocal Cooperation Agreement" pursuant to Texas Government Code, Chapter 791, entitled the Interlocal Cooperation Act, by and between the City of Denton, Texas, a Texas municipal corporation, and the Cities of Gainesville and Sherman, Texas regarding the use of personnel and equipment; a copy of which Interlocal Cooperation Agreement is attached hereto as Exhibit "A" and incorporated by reference herewith. SECTION 2. That the expenditure of funds as provided in the attached Interiocal Cooperation Agreement is hereby authorized. SECTION 3. That this ordinance shall become effective immediately upon. its passage and approval. PASSED AND APPROVED this the __ day of ,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINEBROCK, MAYOR By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNTY S:'\Ou- Doeume~ts\Ordinanees\03'~Interlocal Cooperation Agreement-2003-3 Cities-Eqt.,ipment & Personnel.doc Exhibit 1 THE STATE OF TEXAS COUNTIES OF COOKE, DENTON AND GRAYSON INTERLOCAL COOPERATION AGREEMENT THIS INTERLOCAL COOPERATION AGREEMENT (the "Agreement") is entered into by and between the Governmental Entities shown below, and referred to collectively as the "Contracting Parties," or referred to separately hereunder as the either the "Contracting City" or "Contracting Cities," or "requesting City" or the "responding City," pursuant to the authority granted, and in compliance with the provisions of' the Texas Government Code, Chapter 791, entitled the "Imerlocal Cooperation Act." WHEREAS, the Cities of Denton, Gainesville, and Sherman, Texas each have the authority to perform the services set forth in this Agreement individually and in accordance with Texas Government Code Annotated §791(c)(2); and WHEREAS, the Cities of Denton, Gainesville, and Sherman, Texas will make all payments for services out of available current revenues available to each of them; and the Cities of Denton, Gainesville, and Sherman, Texas each agree that all payments made by it hereunder will fairly compensate it for the services provided herein; NOW THEREFORE Contracting Parties: Agency: City of Denton, Texas (Public Utility/Public Works Department) Coordinating Agency: City Manager's Office, City of Denton, Texas Contact Person: Michael A. ConduiT, City Manager, or his designee Agency: City of Gainesville, Texas (Public Utility/public Works Department) Coordinating Agency: City Manager's Office, Gainesville, Texas Contact Person: Michael Land, City Manager, or his designee Agency: City of Sherman, Texas (public Utility/Public Works Department) Coordinating Agency: City Manager's Office, City of Sherman, Texas Contact Person: L. Scott Wall, City Manager, or his designee Services to be Performed: Those services as generally listed in Attachment "A," which is attached hereto and incorporated herewith by reference. This Attachment may be modified, as operational necessities or other factors require, by mutual written consent of the Contracting Parties' City Managers. EXHIBIT 2 Contract Amount: The Cities of Denton, Gainesville, and Sherman, Texas each agree to reimburse the other, as applicable, for their actual costs and for their out-of-pocket expenses incurred, in the performance of this Agreement. Reimbursement shall be made by the Contracting City requesting services hereunder to each responding Contracting City monthly, as applicable, and is due and payable within thirty (30) days after presentmem of an invoice to the requesting City, on an incident-by-incident basis, as needed. Attachments Attachment "A" Attachment "B" Services to be Performed by Contracting Parties Operational Provisions Term of Agreement: The term of this Agreement shall be for one (1) year beginning upon approval by the last party to subscribe the same, and it shall renew automatically for additional one (1) year periods. Provided, however, this Agreement may be earlier terminated upon sixty (60) days written notice given by any Contracting City to the other Contracting Parties. Liability: Any civil liability arising hereunder shall be determined pursuant to the laws of the State of Texas. Independent Contractor: Each of the Contracting Parties shall operate under this Agreement as an independent contractor, and not as an agent, representative, servant or employee of the other. Subject to the terms of this Agreement, each Contracting City shall have the right to control the details of its performance hereunder. Parties' Addresses for Notice: Unless otherwise provided herein, all notices required or permitted by the Agreement, shall be made to the Contracting Parties at the following addresses and phone numbers: City of Denton, Texas and City Manager's Office Atto: Michael A. Conduff, City Manager 215 East McKinney Street Denton, Texas 76201 City of Denton, Texas Assistant City Manager/Utilities Attn: Howard Martin (940) 349-8232 City of Gainesville, Texas City Manager's Office Atm. Michael Land, City Manager 200 South Rusk Gainesville, Texas 76240 and City of Gainesville, Texas Director of Public Works Atto: Jim Gray (940) 668-4540 City of Sherman, Texas City Manager's Office Attn: L. Scott Wall, City Manager 220 West Mulberry Sherman, Texas 75091 and City of Sherman, Texas Director of Public Works At-m: David Gattis (940) 892-7208 EXECUTED by the aforementioned Contracting Parties on the dates set forth below; this Agreement shall be effective from and after the last date upon which this Agreement is signed. EXECUTED this day of ,2003. CITY OF DENTON, TEXAS A Texas Municipal Corporation By: Michael A. Conduff, City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L, PROUTY, CITY ATTORNEY By: 3 ,2003. CITY OF GAINESV1LLE, TEXAS A Texas Municipal Corporation ~dnn Loch, Mayor ATTEST: RITA GRAY, CITY SECRETARY APPROVED AS TO LEGAL FORM: BILL HARRIS. CITY ATTORNEY By: ~ /- 4 ATTEST: CITY OF SHERMAN, TEXAS A Texas By: __ ;TARR, MAYOR By: LINDA ASHBY, CIT~' CL~ APPROVED: By: CHARLES W. ROWLAND CITY ATTORNEY ATTACHMENT "A" SERVICES TO BE PERFORMED BY CONTRACTING PARTIES Upon receipt of a written report by a City Manager, an Assistant City Manager, or the Director of Public Works of a Contracting Party requesting services hereunder, received by one or two of the Contracting Parties, the City or Cities receiving such written report shall promptly determine whether it/they is/are able to respond to such request, subject to the availability of personnel and equipment, and also taking into account the safety, well-being, and needs of its own citizens. The responding City or Cities shall promptly and reasonably communicate their acceptance, or their inability to perform, in writing, to the requesting Contracting Party. Any request for aid and assistance made pursuant to this Agreement shall include a statement of the problem, whether the problem has subsided or is a continuing problem, the amount and type of equipment requested, the number of personnel requested, an estimate of the number of hours or days needed to remedy the problem, and any other information that the Contracting Party deems is helpful to the Contracting City or Cities receiving the written report. If the problem cannot be reasonably remedied within forty-eight (48) hours, then a more extensive written request must be prepared and delivered to the City Manager(s) of the City or Cities receiving such written report. The parties to this Agreement understand and agree that the rendering of assistance under this Agreement is solely at the discretion of the responding City or Cities. The responding City or Cities reserve the right to withdraw any crews or equipment from the requesting City at any time, upon notifying the requesting City. The services to be performed hereunder shall generally include work in the following areas: Drainage Solid Waste Storm Damage Streets Use of Heavy Equipment Water Wastewater 6 EXHIBIT "B" OPERATIONAL PROVISIONS Any dispatch of equipment and personnel pursuant to this Agreement is subject to the following term and conditions: A. Any request for aid by a Contracting Party hereunder shall include a statement of the mount of, the type of equipment, and the number of personnel that are needed. However, the mount, the type of equipment, and the number of personnel to be furnished shall be determined by a representative of the responding City or Cities. B. Personnel from the responding City or Cities shall report to the Contracting Party's municipal officer in charge of the location to which the equipment and personnel is dispatched, and shall be subject to the lawful orders of that official. C. The parties to this Agreement understand and agree that all work and assistance provided under this Agreement shall be provided, without warranties, which the responding City hereby disclaims, including without limitation, the warranties of merchantability and fitness for particular purpose. D. The parties to this Agreement understand and agree that the responding City shall include wages, meals, lodging, transportation, and equipment and materials costs in its invoices. Charges for labor shall be billed at the responding City's actual cost for hourly pay, and for overtime, if applicable. Charges for the use of equipment and transportation shall be billed at the responding City's standard rates and practices in effect at that time. Meals, lodging, and other incidental costs and expenses shall be reasonable and billed at actual cost. Materials that are furnished shall be billed at their actual cost. E. The parties to this Agreement understand and agree that should any dispute arise with respect to an invoice created hereunder, that the Cities who are parties to the dispute shall first negotiate in good faith to resolve the dispute. Failing resolution by those means, they shall then submit, within thirty-(30) days, such disputed invoice to a non-binding dispute resolution process. Should the non-binding resolution process fail to resolve the dispute, then the parties may commence litigation, but not before. Venue for any such litigation shall lie exclusively in the County of the responding City. The parties understand and agree that in the event of there being litigation brought with respect to an invoice or invoices, pursuant to this Agreement, that the prevailing party, as determined by a court of competent jurisdiction, shall recover its attorney's fees, costs, and reasonable expenses from the non-prevailing party. S:\Our Documents\Contmcts',03~.nterlocal Cooperation Agreement-2003-Denton, Gainesville, & Sherman.doc 7 AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET November 4, 2003 Legal Department Dorothy Palumbo, Senior Assistam City Attorney SUBJECT: Consider adoption of an Ordinance authorizing the rejection of the R.L. Adkins Bid and authorizing the re-advertisement for a Non-Drill Site/Pooling Agreement for South Lakes Park in the City of Demon, Texas; and providing an effective date. BACKGROUND: This Ordinance allows the City of DeNon to reject the bid submitted by R.L. Adkins for South Lakes Park and to authorize the re-advertisement for bids. During the negotiation process, the Jerry Hardin, the Landman for R.L. Adkins stated that R.L. Adkins wished to withdraw their bid. We have been comacted by other Gas Well Operators, who are interested in the City re-advertising this bid. Please see the City Attorney Status report for October 31, 2003 for more detailed discussion. FISCAL: The City would receive the bonus money upon the execution of a lease and a momhly royalty when the well is drilled and connected to the gas transmission line. OPTIONS: The City Council may adopt the ordinance to reject the bid and re-advertise for additional bids. The City may decide to reject the bid and not re-advertise for additional bids. RECOMMENDATION: We recommend that the City adopt the ordinance. Respectfully submitted, Dorothy Palumbo, Sr. Asst. City Attorney S:\Our DocumentsSGas Well DocumentskAIS South Lakes Re-Bid Pooling Agreement.doc S:\Our Documents\Ordinances\03\Re-Advertisement for Southlakes Oil & Gas Lease Ord2.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE REJECTION OF THE R.L. ADKINS BID AND AUTHORIZING THE RE-ADVERTISEMENT FOR A NON-DRILL SITE/POOLING AGREEMENT FOR SOUTH LAKES PARK IN THE CITY OF DENTON, TEXAS AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on July 16, 2002 the City Council of The City of DeNon held a public hearing pursuam to Chapter 26 of the Texas Parks and Wildlife Code and made the determination that the sub-surface use of South Lakes Park for the purpose of an Oil and Gas Non-Drill Site/Pooling Agreemem should be allowed and the surface of the park may still be used by its patrons after completion of the sub-surface use of the park; and WHEREAS, pursuant to Chapter 71 of the Texas Natural Resources Code, the City Council of The City of DeNon has determined that it is advisable to lease the sub-surface of South Lakes Park for the purpose of an Oil and Gas Non-Drill Site/Pooling Agreemem; and WHEREAS, the City Council authorized the City Manager or his designee to bid the sub- surface mineral interests for a Non-Drill Site/Pooling Agreement at South Lakes Park according to law; and WHEREAS, no bids were submitted during the initial bid for a Non-Drill Site/Pooling Agreement at South Lakes Park and since that time, several oil and gas developers have requested that the City re-bid the sub-surface mineral interests, however, the subsequent bids submitted on May 13, 2003 for South Lakes Park did not meet the minimum bid specifications; and WHEREAS, the City Council desires to rejected all bids and authorized the City Manager or his designee to re-bid the sub-surface mineral imerests for a Non-Drill Site/Pooling Agreements at South Lakes Park with no minimum bid specifications according to law. WHEREAS, the subsequem bid submitted by R.L. Adkins was withdrawn and the City Council desires to reject the R.L Adkins bid and authorize the City Manager or his designee to re-bid the sub-surface mineral interests for a Non-Drill Site/Pooling Agreements at South Lakes Park with no minimum bid specifications according to law NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings comained in the preamble of this ordinance are incorporated imo the body of this ordinance. SECTION 2. The City Council rejects the R.L Adkins bid submitted for the non- drilling, paid-up pooling agreemem for Oil and Gas Lease agreemems for South Lakes Park to the City of Denton Purchasing Department on August 4, 2003. SECTION 3. That pursuant to Chapter 71 of the Texas Natural Resources Code, the City Council hereby authorizes the re-advertisemem for a Non-Drilling, Paid-Up Pooling Agreemem for an Oil and Gas Lease Agreemem for South Lakes Park within the City of DeNon, Texas. SECTION 4. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __day of ,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: AGENDA INFORMATION SHEET AGENDA DATE: October 7, 2003 DEPARTMENT: Legal Department CM/DCM/ACM: Dorothy Palumbo, Senior Assistant City Attorney SUBJECT: Consider adoption of an Ordinance allowing the City Manager to execute a Non- drill Site/Pooling Agreement with Joint Resources Company for 353 acres of North Lakes Park in the City of Denton, Texas; and providing an effective date. BACKGROUND: This Ordinance allows the City Manager to execute a lease for a non-drill site/pooling agreement for approximately 353 acres at North Lakes Park. Joint Resources Company submitted the only bid for these mineral interests. The City will receive $72,365.50 bonus and a 21% royalty interest. No drilling will be allowed on North Lakes Park and this land will be pooled and drilled off a well on adjacent property. Please see the City Attorney Stares report for September 26, 2003 for more detailed discussion of the lease terms. FISCAL: The City will receive the bonus money upon the execution of the lease and a monthly royalty when the well is drilled and connected to the gas transmission line. OPTIONS: The City Council may adopt the ordinance and authorize the City Manager to execute the lease or the Council may reject all bids and re-advertise for additional bids. RECOMMENDATION: We recommend that the City Manager execute the mineral lease. Respectfully submitted, Dorothy Palt~qabo, Sr. Asst. City Attorney S:\O~ Deeume nra\Cms Well Documem~agendn inS~rrnation sheet-Joint P,~ources North Lake doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A NON-DRILL SITE/POOLING AGREEMENT WITH JOINT RESOURCES COMPANY FOR 353 ACRES OF NORTH LAKES PARK; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton has heretofore determined that it is advisable to lease for oil and gas purposes certain real property located at North Lakes Park, Denton, Texas; and WHEREAS, in compliance with Chapter 71 of the Texas Natural Resources Code (the "Code") the City published notice of its intention to lease such real property for oil and gas purposes once a week for three consecutive weeks in a newspaper with general circulation and published in Denton County, Texas; and WHEREAS, in compliance with the Code, the City COuncil of the City of Denton held a public hearing under Chapter 26 of the Texas Parks & Wildlife Code and Chapter 71 of the Texas Natural Resources Code; and WHEREAS, the City desires to authorize the City Manager to execute the lease with Joint Resources Company for a non-drill site/pooling agreement; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Incorporation of Preamble. The above and foregoing preamble is incorporated into the body of this Ordinance as if copied herein in its entirety. SECTION 2. The City Manager or his designee is hereby authorized to execute a non-drill site/pooling oil and gas lease agreement between the City of Denton and Joint Resources Company in remm for the payment(s) as outlined in Attachment A for approximately 353 acres at North Lakes Park. SECTION 3. If any section, article, paragraph, sentence, clause, phrase or word in this Ordinance or apphcation thereof to any person or circumstance is held invalid or unconstitutional by a Court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Ordinance, and the City Council hereby declares it would have passed such remaining portions of this Ordinance despite such invalidity, which remaining portions 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 ,2003. EULINE BROCK, MAYOR ATTEST: JENNWER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY Page 2 S:\Our Documents\Gas Well Documents\North Lakes Park Pooling Agreement.doc OIL, GAS AND MINERAL LEASE NON-DRILL SITE/POOLING AGREEMENT THIS OIL, GAS AND MINERAL LEASE (the "Lease") is made this day of ,2003 (the "Effective Date"), between The City of DeNon, DeNon, Texas, acting herein by and through its City Manager, Mike Conduff, duly authorized by ordinance to execute this Lease ("LESSOR"), whose address is: 215 East McKinney, DeNon, Texas 76201 and Join Resources Company ("LESSEE"), whose address is: 770 N. Fielder Road, Arlington, Texas 76012. WITNESSETH: 1. Lease of Land. LESSOR in consideration of Seventy-Two Thousand Three Hundred and Sixty-Five Dollars and Fifty CeNs ($72,365.50), in hand paid, of the royalties herein provided, and of the agreemeNs of LESSEE herein coNained, hereby leases and lets exclusively uno LESSEE for the purpose of a non-drill site/pooling agreemeN for investigating, exploring, prospecting, drilling and mining for and producing oil, gas and all associated minerals, to produce, save, take care of, treat, transport and own said products, the following described land in Denton County, Texas, to-wit: Legal Description attached as "Exhibit A". For all purposes of this Lease, said land is estimated to comprise 353 acres, whether it actually comprises more or less. However, there is expressly excepted from this Lease and reserved to LESSOR, its successors and assigns, all vanadium, uranium, plutonium, thorium, fissionable minerals and all other minerals of every kind and character in, on and under the land, except only oil, gas, casinghead gas and their byproducts and such other hydrocarbon substances, carbon dioxide and sulfur as are necessarily produced with and incideNal to the production of oil and gas, or either of them. 2. Reservation and Surface Use Prohibition. There is hereby excepted and reserved to LESSOR the full use of the land covered hereby and all rights with respect to the surface and subsurface thereof for any and all purposes and all minerals except those expressly leased for pooling purposes and only to the exteN herein leased to LESSEE. LESSOR reserves and excepts from this Lease all of the surface of the land described in paragraph 1, and LESSEE agrees that it will not conduct drilling operations or any other operations or activities of any nature on the surface of such land. 3. Primary Term: This is a paid up lease and subject to the other provisions here coNained, this Lease shall be for a term of three (3) years from the Effective Date (the "Primary Term") and as long thereafter as oil, gas and other minerals are produced in paying quaNities from said land or land with which said land is pooled hereunder. 4. Royalty: As royalty, LESSEE covenants and agrees to pay: a. As a royalty on oil (including all hydrocarbons produced in liquid form at the mouth of the well and also condensate, distillate, and other liquid hydrocarbons recovered from oil or gas run through a separator or similar equipment) 21% of the gross production or the market value thereof, at the option of LESSOR, the value to be determined by (i) the highest posted price, plus premium, if any, offered or paid for oil, condensate, distillate, or other liquid hydrocarbons, respectively, of a like type and gravity for the field where produced and when run, or (ii) the highest market price offered or paid for the field where produced and when run, or (iii) the gross proceeds of the sale whichever is greater. LESSEE agrees that before any gas produced from the land is sold, used or processed in a plant, it will be run, free or cost to the parties entitled to royalties, through an adequate oil and gas separator of conventional type or other equipment at least as efficient to the end that all liquid hydrocarbons recoverable from the gas by such means will be recovered. Upon written consent of the royalty owners, the requirement that gas be run through a separator or other equipment may be waived upon terms and conditions as prescribed by them. b. As a royalty on any gas, which is defined as all hydrocarbons and gaseous substances not defined as oil in subparagraph 4.b. above, produced from any well on the land (except as provided in this Lease with respect to gas processed in a plant), 21% of the gross production or the market value thereof, at the option of LESSOR, the value to be based on the highest market price paid or offered to a third party LESSEE under a gas purchase agreement negotiated at arms' length for gas of comparable quality and quantity in the general area where produced and when run, or the gross price paid or offered to the producer, whichever is greater. c. As a royalty on any gas processed in a plant, 21% of the residue gas and the liquid hydrocarbons extracted or the market value thereof, at the option of LESSOR. The royalty percentage shall be applied to 100% of the total plant production of residue gas attributable to gas produced from this Lease, and on 50% or that percent accruing to LESSEE, whichever is greater, of the total plant production of liquid hydrocarbons attributable to the gas produced from this Lease; except if liquid hydrocarbons are recovered from gas processed in a plant in which LESSEE or an affiliate owns an interest, then the royalty percentage for liquid hydrocarbons shall be 50% or the highest percent accruing to a third party processing gas through the plant under a processing agreement negotiated at arms' length. The respective royalties on residue gas and on liquid hydrocarbons shall be determined by (i) the highest market price paid or offered for any gas (or liquid hydrocarbons) of a comparable quality in the general area or (ii) the gross price paid or offered for such residual gas, or the weighted average gross selling price for the respective grades of liquid hydrocarbons, F.O.B. the plant in which the gas is processed, whichever is greater. d. On all substances, including, but not limited to carbon dioxide and sulfur, permitted to be produced from the land by virtue of this Lease, and products, except liquid hydrocarbons, produced or manufactured from gas, and for which no royalty is otherwise specified in this Lease, LESSOR shall have and be entitled to the royalty percentage of that produced or saved to be delivered to LESSOR, free of all costs, or, at the option of LESSOR, which may be exercised from time to time, LESSEE shall account to LESSOR for the royalty percentage of the market value thereof, which market value shall be -2- deemed to be the greater of (i) the highest market price of each product for the same month in which the product is produced, or (ii) the average gross sale price of each product for the same market. e. Accounting and payment to LESSOR of royalties from the production of oil and gas from any well shall commence no later than ninety (90) days after the date the well commences first production. Thereafter, all accountings and payments of royalties shall be made on or before the last day of the calendar month following the calendar month in which the production occurred. Should LESSEE at any time fail to make royalty payments to LESSOR on or before the last day of the third calendar month following the calendar month in which the production occurred, this Lease shall automatically terminate unless the payments are made within thirty (30) days after written notice is given to LESSEE. Any royalties provided for in this Lease which are not paid to LESSOR within the applicable time periods specified in this paragraph shall accrue interest at the same rate as judgments under the laws of the State of Texas from due date until paid. Acceptance by LESSOR of royalties which are past due shall not act as a waiver or estoppel of LESSOR'S right to receive or recover any and all interest due under the provisions of this paragraph unless the written acceptance or acknowledgment by LESSOR to LESSEE expressly so provides. LESSEE shall pay all reasonable attorney's fees incurred by LESSOR in connection with any lawsuit in which LESSOR is successful in recovering royalties or interest or in terminating this Lease due to LESSEE'S failure to pay royalties within the periods set forth above. f. LESSEE shall use its best efforts to obtain in contracts relating to the sale of gas produced from the leased premises provisions providing for the adjustment of the price paid to reflect market fluctuations in gas prices; provided, however, and notwithstanding anything to the contrary in this lease, LESSOR's royalty on any substance produced pursuant to this lease shall never be calculated on a value or price which exceeds the price actually received by LESSEE for the sale of such substance in an arms-length transaction with a non-affiliated purchaser. LESSOR'S royalty shall never bear, either directly or indirectly, any part of the costs or expenses of producing, gathering, dehydrating, compressing, transporting, manufacturing, processing, treating or marketing of the oil or gas from the land, nor any part of the costs of constructing, operating or depreciating any plant or other facilities or equipment for processing or treating oil or gas produced from the land. 5. Shut-In Gas. If LESSEE drills a well on land which the LESSOR has permitted to be pooled herewith, which well is capable of producing gas but such well is not being produced, and this Lease is not being maintained otherwise as provided herein, this Lease shall not terminate, whether it being during or after the Primary Term (unless released by LESSEE) and it nevertheless shall be considered that oil and gas is being produced from the land covered by this Lease. When, at the expiration of the Primary Term or any time or times thereafter, the Lease is continued in force in this matter, LESSEE shall pay or tender as royalty to the parties who at the time of such payment would be entitled to receive royalty hereunder if the well is producing, or deposit directly with LESSOR at its address shown herein, a sum equal to for each gross acre of land subject to this Lease at the time such payment is made. The first payment of such sum shall be on or before the first day of the calendar month at the expiration of ninety -3- (90) days from the date the Lease is not otherwise maintained, and thereafter subsequent payments may be made at annual intervals. LESSEE'S failure to pay or tender or properly or timely pay or tender such sum as royalty shall render LESSEE liable for the amount due and shall operate to terminate this Lease automatically. 6. Limit of Shut-In: Notwithstanding anything to the contrary in this Lease, it is expressly agreed and provided that this Lease cannot and shall not be extended beyond the Primary Term by reason of the shut-in well provisions of Paragraph 5 for any single period of more than two (2) consecutive years or more than three (3) years in the aggregate. 7. Pooling: Subject To the reservations and surface use prohibitions of paragraph 2 of this Lease, LESSEE, at its option, is hereby given the right and power to pool or combine the acreage covered by this lease or any portion thereof as to oil and gas, or either of them, with any other land covered by this lease, and/or with any other land, lease or leases in the immediate vicinity thereof to the extent hereinafter stipulated, when in LESSEE'S judgment it is necessary or advisable to do so in order to properly to explore, or to develop and operate said leased premises in compliance with the spacing rules of the Railroad Commission of Texas, or other lawful authority, or when to do so would, in the judgment of LESSEE, promote the conservation of oil and gas in and under and that may be produced from said premises. Units pooled for oil hereunder shall not exceed forty (40) acres, plus a tolerance of 10 percent (10%) thereof, each in area, and units pooled for gas hereunder shall not exceed in area 640 acres each plus a tolerance of ten percent (10%) thereof, provided that should governmental authority having jurisdiction prescribe the creation of units larger than those specified, for the drilling or operation of a well at a regular location or for obtaining maximum allowable from any well to be drilled, drilling or already drilled, units thereafter created may conform in size with those prescribed by governmental regulations. LESSEE under the provisions hereof, may pool or combine acreage covered by this lease or any portion thereof as above provided as to oil in any one or more strata and as to gas in any one or more strata. The units formed by pooling as to any stratum or strata need not conform in size or area with the unit or units in to which the lease is pooled or combined as to any other stratum or strata, and oil units need not conform as to area with gas units. The pooling in one or more instances shall not exhaust the rights of the LESSEE hereunder to pool this lease or portions thereof into other units. LESSEE shall file for record in the appropriate records of the county in which the leased premises are situated an instrument describing and designating the pooled acreage as a pooled unit; and upon such recordation of the unit shall be effective as to all parties hereto, their heirs, successors, and assigns, irrespective of whether or not the unit is likewise effective as to all other owners of surface mineral, royalty or other rights in land included in such unit. LESSEE may at its election exercise its pooling option before or after commencing operations for or completing an oil or gas well on the leased premises, and the pooled unit may include but is not required to include, land or leases upon which a well capable of producing oil or gas in paying quantities has theretofore been completed or upon which operations for the drilling of a well for oil and gas have theretofore been commenced. In the event of operations for drilling on or production of oil or gas from any part of a pooled unit which includes all or a portion of the land covered by this lease, regardless of whether such operations for drilling were commenced or such production was secured before or after the execution of this instrument or the instrument designating the pooled unit, such operations shall be considered as operations for drilling on or production of oil or gas from land covered by this lease whether or not the well or wells be located on the premises covered by this lease and such event operations for drilling shall be deemed to have been commenced on said -4- land within the meaning of paragraph 8 of this lease; and the entire acreage constituting such unit or units, as to oil and gas, or either of them, as herein provided, shall be treated for all purposes, except the payment of royalties on production from the pooled unit, as if the same were included in this lease. For the purpose of computing the royalties to which owners of royalties and payments out of production and each of them shall be entitled on production of oil and gas, or either of them, from the pooled unit, there shall be allocated to the land covered by this lease and included in said unit (or to each separate tract within the unit if this lease covers separate tracts within the unit) a pro rata portion of the oil and gas, or either of them, produced from the pooled unit after deducting that used for operations on the pooled unit. Such allocations shall be on an acreage basis--that is to say, there shall be allocated to the acerage covered by this lease and included in the pooled unit (or to each separate tract within the unit if this lease covers separate tracts within the unit) that pro rata portion of the oil and gas, or either of them, produced from the pooled unit which the number of surface acres covered by this lease (or in each such separate tract) and included in the pooled unit bears to the total number of surface acres included in the pooled unit. Royalties hereunder shall be computed on the portion of such production, whether it be oil and gas, or either of them, so allocated to the land covered by this lease and included in the unit just as though such production was from such land. The production from an oil well will be considered as production from the lease or oil pooled unit from which it is producing and not as production from a gas pooled unit; and production from a gas well will be considered as production from the lease or gas pooled unit from which it is producing and not from an oil pooled unit. The formation of any unit hereunder shall not have the effect of changing the ownership of any shut-in production royalty which may become payable under this lease. If this lease now or hereafter covers separate tracts, no pooling or unitization of royalty interest as between any such separate tracts is intended or shall be implied or result merely from the inclusion of such separate tracts within this lease, but LESSEE shall nevertheless have the right to pool as provided above with consequent allocation of production as above provided. As used in this paragraph 7, the words "separate tract" mean any tract with royalty ownership differing, now or hereinafter, either as to parties or amounts from that as to any other part of the leased premises. 8. Termination. a. If, at the expiration of the Primary Term, LESSEE is not engaged in the actual drilling of a well under the terms of this Lease or if LESSEE has completed or abandoned a well on the land within thirty (30) days prior to expiration of the Primary Term and is not, at the expiration of ninety (90) days after the date or completion or abandonment of the well, engaged in the actual drilling of another well under the terms of this Lease, this Lease shall then terminate as to all of the land, save and except the following: Each well producing oil or being reworked, and classified as an oil well under the rules and regulations of the Railroad Commission of Texas, together with forty (40) acres around each such well (an "Oil Unit"). Each well producing gas (or capable of producing gas with all shut-in royalty having been paid thereon) or being reworked, and classified as a gas well under the rules and regulations of the Railroad Commission of Texas, together with the one hundred sixty (160) acres around each such well (a "Gas Unit"). -5- b. Each Oil Unit or Gas Unit shall be in as near the form of a square as reasonably practicable considering the boundary of the land and the necessity of a legal location of the well on the unit. Notwithstanding the foregoing, if the Railroad Commission of Texas or other authority having jurisdiction, by rule or order prescribes a larger or a smaller number of acres for the purposes of securing the maximum allowable production, each unit shall be increased or decreased in size as necessary to conform to the number of acres prescribed by the rule or order, but if the rule or order provides for or permits optional sized tracts or spacing, the unit shall be the smallest tract permitted by the rule or order. c. If, at the expiration of the Primary Term, LESSEE is engaged in the actual drilling of a well under the terms of this Lease or if LESSEE has completed or abandoned a well on the land within thirty (30) days prior to expiration of the Primary Term and is, at the expiration of ninety (90) days after completion or abandonment of the well, engaged in the actual drilling of another well under the terms of this Lease this Lease shall not terminate so long as LESSEE pursues the drilling of the well with reasonable diligence to completion or abandonment and so long as LESSEE commences the actual drilling of additional and successive wells under the terms of this Lease at intervals not exceeding ninety (90) days between completion of a well as a producer or dry hole and commencement of actual drilling of the next well under the terms of this Lease. If and when LESSEE fails to commence the actual drilling of a well within the applicable interval (or within the extended time provided in subparagraph 8.d. below, this Lease shall then terminate to all of the land, save and except the Oil Units and Gas Units provided in subparagraph 8.a. above. Upon expiration of the Primary Term or the cessation of the continuous drilling program set forth herein, whichever is later, this Lease shall also terminate as to all depths below each unit retained as to depths below a depth of one hundred feet (tOO') beneath the deepest producing horizon or zone for each unit. d. If LESSEE, in the conduct of actual drilling operations under this Lease after the expiration of the Primary Term, commences the actual drilling of any next succeeding well within less than the ninety (90) day time interval specified in subparagraph 8.c. and thus speeds up the development of the land, LESSEE shall have credit in time for the accelerated development and may, in the conduct of subsequent actual drilling operations, take advantage of the credit in time on a cumulative basis and thus extend the time for the commencement of actual drilling of any subsequent well or wells required to be drilled under the provisions of this Lease in order to prevent termination of this Lease. Within ten (t0) days of the commencement of the actual drilling of each well under the terms of this Lease, LESSEE shall give LESSOR written notice of the date of commencement. Within ten (t0) days after the completion or abandonment of each well under the terms of this Lease, LESSEE shall give LESSOR written notice of the date of completion or abandonment and also of the time credit, if any claimed by LESSEE as a result of having commenced the actual drilling of the well within less than the required interval. If LESSEE fails to timely so notify LESSOR in any of these respects, LESSEE shall not be entitled to any credit in time for accelerated development. Nothing contained in this paragraph shall relieve LESSEE of any offset obligation arising by implication or under the terms of this Lease, but any well drilled by LESSEE to satisfy an offset obligation will entitle LESSEE to the privileges of this paragraph. -6- 9. Removal of Equipment. Subject to the surface use prohibitions of paragraph 2, LESSEE shall have the right at any time during and for one hundred eighty (180) days after the expiration of this Lease to remove all casing. Thereafter, it shall be deemed abandoned to LESSOR. If LESSEE fails to remove such property, casing and fixtures within such 180 day period, at Lessor's option, ownership of the same will vest in LESSOR, LESSOR'S successors and assigns or LESSOR, at its option, may require the removal of said equipment in addition to all other remedies to which LESSOR is emitled under law. 10. Assignment. The rights of either party hereunder may be assigned in whole or in part, and the provisions hereof shall extend to and bind their respective heirs, successors and assigns; but no change or division in ownership of the land, remals or royalties, however accomplished, shall operate to enlarge the obligations or diminish the rights of LESSEE. 11. Title. LESSOR does not warrant or agree to defend the title of the lands covered hereby. LESSEE takes this Lease without warranty of title either express or implied. If LESSOR owns an interest in the oil, gas and minerals leased hereby less than the entire fee simple estate, then the royalties, or other monies accruing from any part of the land to which this Lease covers less than such full imerest shall be paid to LESSOR only in the proportion which LESSOR'S imerest therein, if any, bears to the whole and undivided fee simple mineral estate therein. It is the sole responsibility of LESSEE to determine the LESSOR's mineral imerest. The bonus paymem paid for this Lease shall be deemed to be final if no title problems are submitted for resolution within ninety (90) days of the Effective Date. 12. Force Maieure: When drilling, production or other operations under the terms of this Lease or land pooled with such land, or any part thereof are prevemed, delayed or imerrupted by fire, storm, flood, war, rebellion, insurrection, sabotage, riot, strike, or as a result of some law, order, rule, regulation or necessity of govemmemal authority, either State or Federal, the Lease shall nevertheless cominue in full force and effect and be extended for the period such drilling, production and other operations are so prevented, delayed or interrupted. LESSEE shall not be liable for breach of any express or implied covenams of this Lease when drilling, production or other operations are so prevented, delayed or interrupted, except that nothing in this paragraph 12 shall be construed to suspend the payment of delay rentals, shut-in royalty or any other amount otherwise required to maintain this Lease in effect. 13. Designation of Gas Unit. a. Upon completion of the first well as a producer of oil and/or gas in paying quamities (whether the first or a subsequem well drilled), LESSEE shall designate an approximately sized drilling unit around said first producing well, all out of the above described property, by filing a written designation in the Deed Records of DeNon County Texas and shall provide LESSOR with a copy of such unit designation. b.. If a second well is completed as a producer of gas in paying quamities, LESSEE shall again designate an approximately sized drilling unit around said second producing well, all out of the above described property, by filing a written designation in the Deed Records of Denton County, Texas and shall provide LESSOR with a copy of such unit designation. LESSEE shall designate all drilling units in a fair and reasonable manner so -7- that the remaining acreage not included in the drilling units is capable of being drilled or pooled with other lands. All designations of units as provided in this paragraph 13 shall be in accordance with and subject to the provisions of paragraph 8 above. 14. Indemnifications and Insurance. LESSEE shall provide or cause to be provided the insurance described below for each well drilled under the terms of this Lease, such insurance to continue until the well is abandoned and the site restored. Such insurance shall provide that LESSOR shall be a co-insured, without cost, and that said insurance can not be canceled or terminated without thirty (30) days prior notice to LESSOR and ten (10) days notice to LESSOR for nonpayment of premiums. a. General Requirements. Indemnification and Express Negligence Provisions. LESSEE shall expressly release and discharge, all claims, demands, actions, judgments, and executions which it ever had, or now have or may have, or assigns may have, or claim to have, against the LESSOR, 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 with the performance of the oil and gas drilling and production performed by the LESSEE under this lease and the LESSEE shall fully defend, protect, indemnify, and hold harmless the LESSOR, and/or its departments, 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, judgments, losses, fines, penalties, costs, fees, and expenses incurred in defense of the LESSOR, and/or its departments, agents, officers, servants, or employees, including, without limitation, personal injuries and death in connection therewith which may be made or asserted by LESSEE, its agents, assigns, or any third parties on account of, arising out of, or in any way incidental to or in connection with the performance of the oil and gas well drilling and production performed by the LESSEE under this lease and, the LESSEE agrees to indemnify and hold harmless the LESSOR, and/or its departments, 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 the LESSOR and/or, its departments, it's officers, agents, servants, or employees, created by, or arising out of the acts or omissions of the LESSOR occurring on the drill site or operation site in the course and scope of inspecting and permitting the gas wells INCLUDING, BUT NOT LIMITED TO, CLAIMS AND DAMAGES ARISING IN WHOLE OR IN PART FROM THE NEGLIGENCE OF THE LESSOR OCCURRING ON THE DRILL SITE OR OPERATION SITE IN THE COURSE AND SCOPE OF ITS DUTIES UNDER THIS LEASE.. IT IS UNDERSTOOD AND AGREED THAT THE INDEMNITY PROVIDED FOR IN THIS SECTION IS AN INDEMNITY EXTENDED BY THE LESSEE TO INDEMNIFY AND PROTECT THE LESSOR AND/OR ITS DEPARMENTS, AGENTS, OFFICERS, SERVANTS, OR EMPLOYEES FROM THE CONSEQUENCES OF THE NEGLIGENCE 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 RESULTANTANT INJURY, DEATH, AND/OR DAMAGE. b. All policies shall be endorsed to read "THIS POLICY WILL NOT BE CANCELLED OR NON-RENEWED WITHOUT 30 DAYS ADVANCED WRITTEN NOTICE -8- TO THE OWNER AND THE CITY EXCEPT WHEN THIS POLICY IS BEING CANCELLED FOR NONPAYMENT OF PREMIUM, IN WHICH CASE 10 DAYS ADVANCE WRITTEN NOTICE IS REQUIRED". c. Liability policies shall be written by carriers licensed to do business in Texas and with companies with A: VIII or better rating in accordance with the current Best Key Rating Guide, or with nonadmitted carriers that have a financial rating comparable to carriers licensed to do business in Texas approved by the City. d. Liability policies shall name as "Additional Insured" the city and its officials, agents, employees, and volunteers. e. Certificates of insurance must be presented to the City evidencing all coverages and endorsements required by this Section 35-508, and the acceptance of a certificate without the required limits and/or coverages shall not be deemed a waiver of these requirements. f. Claims made policies will not be accepted except for excess policies or unless otherwise provided by this Article. g. Required Insurance Coverages 1. Commercial General Liability Insurance. Coverage should be a minimum Combined Single Limit of $1,000,000 per occurrence for Bodily injury and Property Damage. This coverage must include premises, operations, blowout or explosion, products, completed operations, blanket contractual liability, underground property damage, broad form property damage, independent contractors protective liability and personal injury. 2. Environmental Impairment (or Seepage and Pollution) shall be either included in the coverage or written as separate coverage. Such coverage shall not exclude damage to the lease site. if Environmental impairment (or Seepage and Pollution) Coverage is written on a "claims made" basis, the policy must provide that any retroactive date applicable precedes the effective date of the issuance of the permit. Coverage shall apply to sudden and non-sudden pollution conditions resulting from the escape or release of smoke, vapors, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste material or other irritants, contaminants or pollutants. 3. Automobile Liability Insurance. Minimum Combined Single Limit of $500,000 per occurrence for Bodily injury and Property Damage. Such coverage shall include owned, non-owned, and hired vehicles. 4. Worker's Compensation Insurance. In addition to the minimum statutory requirements, coverage shall include Employer's Liability limits of at least $100,000 for each accident, $100,000 for each employee, and a $500,000 policy limit for occupational disease, and the insurer agrees to waive rights of subrogation against the city, its officials, agents, employees, and volunteers for any work performed for the city by the LESSEE. -9- 5. Excess (or Umbrella) Liability Insurance. Minimum limit of $10,000,000 covering in excess of the preceding insurance policies. 6. CoNrol of Well Insurance. a. Minimum limit of $5,000,000 per occurrence. b. Policy shall cover the Cost of controlling a well that is out of control, Redrilling or Restoration expenses, Seepage and Pollution Damage. Damage to Property in the LESSEE's Care, Custody, and CoNrol with a sub-limit of $500,000 may be added. 15. Offset Well Requirement. In the event a well or wells producing oil and gas in any quaNities that should be brought in by LESSEE or any other LESSEE on adjaceN lands and within 330 feet of the land or lands pooled, by permission of LESSOR, with such lands, LESSEE agrees to drill such offset wells as a reasonably prudeN LESSEE would drill under the same or similar circumstances. 16. Location of Drilling Activity, Pipelines and Equipment: No drilling activity shall be conducted on and no pipelines, equipmeN or other structures shall be placed on or under any pavement, concrete or asphalt or any other improved surface area situated on the above described land. The location of any pipelines installed by LESSEE shall be approved in advance by LESSOR, shall not be located on the lands covered by this Lease, and shall be situated along routes that least interfere with LESSOR's existing or future use of the surface. No equipment or roads shall be built on city property. When required by LESSOR, LESSEE will bury all pipelines at a depth of six feet (6'), and the location of wells shall comply with Chapter 29, Fire Code, of the Code of Ordinances of the City of DeNon, as amended, and all other applicable laws; provided, however, in no even will any such activities or operations be conducted on the surface of the lands covered by this Lease. 17. Compliance with Laws: LESSEE shall comply with all applicable rules, regulations, ordinances, statutes and other laws in connection with any drilling, producing or other operations under the terms of this Lease, including, without limitation, the oil and gas well regulations of the City of DeNon. 18. Lease Assignment: The assignment of this Lease by LESSEE, or any successor LESSEE, shall not relieve LESSEE, or any such successor, from its obligations hereunder. LESSOR may, unless it agrees to the contrary, look to the LESSEE and/or any successor of LESSEE for performance of any one or more of such obligations. 19. Water: LESSEE shall not use any water in, on, or under the above-described land. 20. Diligent, Good Faith Operations. Each well drilled under this Lease shall be drilled with reasonable diligence and in good faith and in a good and workmanlike manner in a bona fide attempt to product oil, gas and associated minerals therefrom. -10- 21. Captions and Headings: The captions and headings in this Lease are for convenience only and shall not modify, change, amend, alter, or affect the true meaning of any paragraph, semence, clause, phrase, or words herein. 22. Memorandum of Lease. LESSOR and LESSEE agree that a memorandum of lease shall be filed of record in the Official Records of Demon County, Texas, evidencing this Lease and the provisions contained in such memorandum to the parties hereto, the land covered by the Lease, the term of the Lease and notice provisions informing the public of the existence of the Lease. 23. Entire Agreement. This Lease states the entire contract between the parties, and no represemation or promise, verbal or written, on behalf of either party shall be binding unless comained herein; and this Lease shall be binding upon each party executing the same, regardless of whether or not executed by all owners of the above described land or by all persons above named as "LESSOR", and, notwithstanding the inclusion above of other names as "LESSOR", this term as used in this Lease shall mean and refer only to such parties as execute this Lease and their successors in interest. IN WITNESS WHEREOF, this instrument is executed on the date first above written. CITY OF DENTON, TEXAS - LESSOR MIKE CONDUFF, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: -11- JOINT RESOURCES COMPANY BY: MARK KALPAKIS, PRESIDENT 770 N. FIELDER ROAD ARLINGTON, TEXAS 76012 STATE OF TEXAS § COUNTYOF DENTON § Before me, the undersigned notary public, on this day personally appeared MARK KALPAKIS, the PRESIDENT of JOINT RESOURCES COMPANY who is known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this __ day of ,2003. Notary Public S:\Our Documents\Gas Well Documents\North Lakes Pooling Agreement.doc - 12- Potential Ddl~ing Sites A The eXact legal Secretary's Offic scription City AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET November 4, 2003 Legal Herbert L. Prouty, City Attorney SUBJECT: Consider the approval of an ordinance of the City of DeNon, Texas, authorizing the competitive bid process for an oil and gas non-drill site/pooling agreemem for the Airport Open Space Park; and providing an effective date. BACKGROUND: There are several legal issues that arise when leasing Oil and Gas mineral imerests by a city. Since this is park property, Council previously passed an ordinance calling for a public hearing under Chapter 26 of the Texas Park & Wildlife Code. Chapter 71 of the Texas Natural Resources Code requires that notice be given and a public hearing held for consideration of bids. A city may award the lease to the highest and best bidder who submits a bid or reject all bids and re-advertise for additional bids. This ordinance allows the city to advertise for bids. OPTIONS: 1. The City Council may adopt the ordinance. 2. The City Council may decline to adopt an ordinance on this issue. FISCAL IMPACT: The City would subsequemly emer imo an Oil and Gas Non-drill Site/Pooling agreemem and receive a bonus and royalty paymem. Respectfully submitted: Herbert L. Prouty City Attorney S:\Our Documents\Gas Well Documents\AIS Airport Open Space Park.doc S:\Our Documents\Gas Well Documents\Ord for Bids for Airport Open Space Park.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE COMPETITIVE BID PROCESS FOR A NON-DRILL SITE/POOLING AGREEMENT OIL AND GAS LEASE AGREEMENT FOR THE AIRPORT OPEN SPACE PARK; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council has previously passed an ordinance calling for a public hearing under Chapter 26 of the Texas Parks & Wildlife Code; and WHEREAS, the City Council desires to authorize the competitive bid process for an oil and gas Non-drill site/Pooling agreement for the Airport Open Space Park; and WHEREAS, the City Council desires to advertise for bids pursuant to Chapter 71 of the Texas Natural Resources Code. NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Council hereby authorizes the competitive bid process and advertisement for bids for an oil and gas Non-drill site/Pooling agreement for the Aiport Open Space Park. SECTION 2. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __day of ,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: AGENDA INFORMATION SHEET AGENDA DATE: November 4, 2003 DEPARTMENT: ACM: Water Utilities Howard Martin, ACM/Utilities 349-8232 SUBJECT Consider adoption of an ordinance of the City Council denying the appeal of William Kim Fugitt, AIA (The Timbers at DeNon, LLC.) brought pursuam to §26-226 of City of DeNon Ordinance No. 2003-137, involving the imposition of impact fees; and providing for an effective date. BACKGROUND In early 2002, Lindsey Management Company began investigating the demographics of the Denton area and locating potential building sites for an apartment project. The Timbers at DeNon L.L.C. (the "Developer") executed an offer and acceptance letter comract for a property located on Edwards Road on July 25, 2002. In December of 2002 the developer imroduced the site plan proposal to the DeNon Planning and Zoning Commission, which was revised and resubmitted on January 8, 2003. City Council approved the project on February 18, 2003. The project consists of a 480-unit apartmem complex with 800 bedrooms and a 9-hole golf course. The final plat was submitted on April 29, 2003. During that same period of time the City of Denton was in the process of updating the Capital Improvemems Plan (CIP) and revising impact fees. State law, Chapter 395 of the Texas Local Governmem Code, requires the City of DeNon to update the Capital Improvemems Plan (CIP) and revise impact fees according to the updated CIP every five years. The Public Utilities Board (PUB) approved the CIP February 3, 2003. Numerous newspaper public notices were posted in the Denton Record Chronicle in the months proceeding the consideration and enactment of the ordinance, including a Notice of Public Hearing on land use assumptions and CIP relating to the possible amendmem of impact fees (Exhibit 2) on February 22, 2003 for the March 25, 2003 public hearing. The PUB approved the revised impact fee ordinance on April 21, 2003. The City Council (CC) approved the revised ordinance on May 13, 2003 with an effective date of May 29, 2003 (Exhibit 3). At the request of the Developer, staff provided The Timbers at Denton impact fee assessment in a September 11, 2003 letter to the Developer (Exhibit 4). The letter clearly illustrated how impact fees and meter fees for the project were determined in accordance with the current City impact fee ordinance. The City Secretary received a request for an appeal (Exhibit 5) of the water/wastewater impact fees from the Developer on September 30, 2003. As best that can be determined from the Developer's appeal, the impact fee appeal is based on: 1) a relied-upon e-mail sent by Denton's former Director of Planning, Mr. Doug Powell 2) the impact fees change/increase was not communicated to the Developer, and 3) staff did not process the submittal of the final plat in a timely manner. None of these appeals is applicable according to §26-226(a), which lists the five decisions that may be appealed. According to the legal opinion (Exhibit 6) of the City's Utilities Attorney appealing which Ordinance rate applies, prior or current, is not the same as questioning the "applicability of an impact fee to the new development", which is cited in §26-226(a) as being a permitted appeal. APPEAL 1 The Developer alleges that an e-mail sent by Denton's former director of Planning Doug Powell on November 4, 2002 directed the Developer to a table located in the City's website containing the impact fee schedule and that based on that information the project proceeding in planning and budgeting and financing was secured. Nowhere in the e-mail (page 3 of the appeal) does Mr. Powell answer the Developer's first question regarding impact fees. At that time, the fee schedule that the Developer retrieved off of the City's website was current. Staff is not aware of any other inquiries about impact fees for that project until the April 10, 2003 inquiry made by the project's civil engineer. Staff is not responsible, nor is it possible for staff to make sure that every developer of every project proposed to the City has all the necessary information to complete the project from start to finish. It is the duty of the Developer to manage the project and inquire with appropriate City staff about various fees and processes. APPEAL 2 In the impact fee Letter of Appeal, the Developer contends that he was not made aware of the fee increase until August 1, 2003 and is requesting that the impact fee be calculated according to the old fee structure "due to a lack of communication of the City staff with the developer." On April 10, 2003, Mr. Tim Fisher, Assistant Director of Water, fielded a call regarding impact fees for The Timbers at Denton from the project's civil engineer, Mr. Bob Breedlove of the Brannon Corporation. In a telephone conversation on, or soon after April 10, Mr. Breedlove was informed of the impending fee increase and was advised to plan on an impact fee based on 0.28 SFE per bedroom under the new fee structure. A meeting to discuss this initial impact fee assessment occurred on July 28, 2003, not August 1, 2003. The Developer was asked to provide information for this meeting such as the proposed metering design, gross and irrigated acreage, and proposed method to irrigate the golf course and residential portion of the project. The information requested was not provided and to date, the proposed metering design has not been presented to staff. Due to the lack of information provided by the Developer at the meeting the impact fee was not revised from the original estimates communicated to the civil engineer via a telephone conversation in April. The Developer requested information about the Appeals process during the meeting. As stated in the legal opinion, "The City is under no legal duty to keep anyone advised of the status of its laws and ordinances." The information regarding impact fees provided to the Developer by City staff on November 4, 2002 was current at that time. The Developer did not request, to the knowledge of staff, any other information regarding impact fees umil the April 10, 2003 inquiry by the project's civil engineer. At that time, the civil engineer was informed about the impending fee changes and estimated time frames. The exact date for an effective date could not have been provided due to the fact that the PUB and CC had not yet approved the revised ordinance. The Developer comends, "neither the civil engineer nor Developer was informed of the pending or proposed changes in the fee structure" implying that the City had a duty to update certain members of the Development community. This statement is inaccurate and moreover, the City has no legal duty or responsibility to provide such information if not requested. APPEAL 3 The Developer is also requesting that the impact fee be calculated under the old impact fee schedule due to "City staff's inability to review and approve the information provided 30 days prior to the unadvertised fee increase." The final plat for The Timbers of Denton was submitted on April 29, 2003. Even though the submission of the final plat was incomplete due to the fact that it did not include the Traffic Impact Analysis (TIA), City staff accepted the submittal on April 30, 2003. According to the Developmem Review Schedule (Exhibit 7), commems from City staff were due, and provided on May 22, 2003. The City received the revised submittal from the Developer on June 4, 2003. The Developer did not pay the applicable review fee umil June 11, 2003, a submittal is considered incomplete umil that fee is paid. Commems from City staff on the revised submittal were provided back to the Developer on June 12, 2003, which was within the standard time frame of 10 working days to review a revised submittal. City staff received the second revision to the final plat submittal on June 19, 2003. On Staff recommendation, the Planning and Zoning Commission (P&Z) approved the final plat on June 25, 2003. Staff's recommendation was given at that time in spite of the fact that construction plans were not acceptable. This exception was granted because the applicant claimed funding for the project was at risk. Subsequem to the P&Z approval, revisions were submitted and written commems provided two additional times prior to approval by City staff. Even if the original submittal would have been complete and only needed one resubmittal, the Developer would not have had the plat approved by P&Z by the effective date of the increased impact fees (May 29, 2003) due to the Developmem Review Schedule and necessary lead-time for the P&Z Agenda. Bear in mind the P&Z approval date is not used as the poim in time when impact fees are assessed, the determination of an impact fee is based on the date that the final plat is recorded, which occurs after P&Z approval when the developer prepares and submits a three-way developmem comract and pays applicable developmem fees (park dedication fees and construction inspection fees). In the case of The Timbers of DeNon plat submittal, City staff was not remiss in processing the submittal, nor is a 30-day time frame for processing plat submittals and recording final plat feasible under the schedule of the Developmem Review process and P&Z agenda time frames. City staff not only processed the submittal in a timely manner, but also made exceptions to expedite their submittal. As of October 10, 2003, the execution package has not been completed and the final plat has not been filed due to submittal deficiencies by the Developer. The new impact fee ordinance, effective May 29, 2003, clearly states (§26-220)(a)(2), "For a new developmem which is submitted for approval pursuam to the City's subdivision regulations on or after the effective date of this Article... assessment of impact fees shall be at the time of final plat recordation, and shall be the amount of the maximum impact fee per service unit in effect as set forth in Schedule 1." The impact fees in Schedule 1 on or after May 29, 2003 are $3,155 for water and $1,437 for wastewater. The final plat for The Timbers at DeNon developmem as of October 10, 2003, has not been recorded, nor has the plat been satisfactorily submitted to the City for recording. Therefore, the new fee structure clearly applies. In conclusion, the appeal of impact fees for The Timbers at Denton apartment project is not applicable according to §26-226(a). Neither the appeal based on the City not informing the Developer of the impending impact fee change, nor the appeal based on the claim that City staff did not processes the final plat submittal in a timely manner qualify as one of the five decisions for which impact fees can be appealed. Furthermore, the City is under no legal duty to keep the Developer advised of the status of its laws and ordinances. Staff did respond to a request for information regarding impact fees on or soon after April 10, 2003 disclosing the impending fee increase. Additionally, City staff did process the final plat submittal in a timely manner in line with the Developmem Review Schedule and has even advanced this project despite the incompleteness of the submittal. As of October 10, 2003, the final plat has not been filed. The date of filing determines which fee schedule is applicable, the old or new impact fees. Any plat filed on or after May 29, 2003 will be assessed impact fees based on the new fee schedule. OPTIONS 1. Deny the impact fee appeal 2. Grant the impact fee appeal RECOMMENDATION Staff is recommending to the PUB that a recommendation is made to the City Council to deny the appeal on the grounds that 1) Staff does not have a legal obligation to keep the Developer advised of the status of the City's laws and ordinances, 2) the Developer's final plat submittal was processed in a timely manner according to the Developmem Review Schedule and as of October 10, 2003, has not been recorded, and 3) the appeal is not applicable under the decisions to appeal outlined in City Ordinance 2003-137 §26-226(a). Staff has implememed impact fees in an equitable manner according the City's impact fee ordinances since the inception of impact fees in 1998. The Timbers at Denton apartment project is not the only development project that has been subject to impact fee implementation dates including both those that occurred in 1998 and those that occurred in 2003. Granting this appeal could potentially lead to numerous contentions of past fees and is not equitable to all other entities in the development community who have paid impact fees according to the dates outlined in the City's impact fee ordinances 1998-003 and 2003-137. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The PUB will review the impact fee appeal October 20, 2003. Please review the PUB meeting minutes (Exhibit 8) for a recommendation regarding the appeal, which will be provided prior to the October 21, 2003 City Council meeting. EXHIBITS 1. Ordinance 2. Notice of Public Hearing 3. City Ordinance 2003-137 4. Impact Fee Assessment Letter 5. Request for Appeal 6. City Attorney Legal Opinion 7. Development Review Schedule 8. PUB Minutes - October 20, 2003 Respectfully submitted: Howard Martin Assistant City Manager for Utilities Prepared by: Tim Fisher Assistant Director of Water Utilities ORDINANCE NO. 2003- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS DENYING THE APPEAL OF WILLIAM KlM FUGITT, AIA (THE TIMBERS AT DENTON, LLC.) BROUGHT PURSUANT TO §26-226 OF CITY OF DENTON ORDINANCE NO. 2003-137, INVOLVING THE IMPOSITION OF IMPACT FEES; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of DeNon, Texas has hereby convened, after posting notice of the time and place of the meeting as required by applicable law; that certain appeal of William Kim Fugitt, AIA (The Timbers at DeNon, LLC.), hereafter referred to as the Developer; brought pursuam to §26-226 of City of DeNon Ordinance No. 2003-137, respecting the imposition of impact fees; and WHEREAS, the City Council finds that Developer has satisfied the time requiremem of §26-226(c) regarding the timely filing of its appeal and has submitted written materials to the City in support of its appeal; and WHEREAS, Developer has made an oral presentation to the Denton Public Utilities Board on October 20, 2003, and after considering the presemation of Staff and Developer, the DeNon Public Utilities Board voted 6-0 to deny said appeal, with one member absent; and WHEREAS, under the provisions of §26-226, Developer presemed its case and filed materials for the City Council's consideration, and made argumems; the City, through its Staff, presemed its case and filed materials for the City Council's consideration, and made argumems; and the City Council, having been instructed as to the burden of proof and the applicable law, issued its ruling on the appeal. NOW THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1: That the appeal of William Kim Fugitt, AIA (The Timbers at DeNon, LLC.), brought pursuam to §26-226 of City of DeNon Ordinance No. 2003-137, having been considered by the City Council, and as duly noticed in accordance with applicable law, is not well taken and is hereby accordingly DENIED. SECTION 2: That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __day of ,2003. EULINE BROCK, MAYOR EXHIBIT 1 ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: S:\Our Documents\Ordinances\03kAppeal of Impact Fees - Fugitt 2003A.doc NOTICE OF PUBLIC HEARING ON LAND.. -USE ASSUMPTIONS AND CAPITAL IMPROVEMENTS PLAN RELATING TO POSSIBLE AMENDMENT OF IMPACT FEES The City of Denton will hold a public hearing to consider the land use assumptions and capital improvements plan under which an impact fee may be revised. PUblic Hearing Information March 25, 2003 Dudng the regular City CounciI meeting which begins at 6:30 PM Council Chambers, 215 East McKinney, Denton, Texas, 76201 Any member of the public has a right to appear at the hearing and present evidence for or against the land use assumptions and capital improvements plan. The proPosed plans are available for viewing at the City Manager's Office, City Hall, 215 East McKinney, Denton, Texas, 76201. For further information, contact Water Utilities Admi'nistration at (940) 349-8452. Produced by PlO 3/03 TDD (800) 735-2989 ADA/EOE/ADEA www. cflyofdenton.com Exhibit. 2 AN ORDENANCE OF THE CITY OF DENTON, TEXAS UPDATING IMt'ACT FEES BY AMENDING CHAPTER 26, "UTILIT]]~S," SECTION 26-210 THROUGH 26-232 OF THE CITY OF DENTON CODE OF ORDINANCES; ADOPTING REVISED LAND USE ASSUMPTIONS AND CAPITAL IMPROVEMENTS PLANS FOR WATER AND WASTEWATER IMPACT FEES; ESTABLISHING NEW SERVICE AREAS FOR WASTEWATER IMPACT FEES; ESTABLISHING NEW ~ IMPACT FEES PER SERVICE UNIT A_ND I!ViPACT FEES TO BE COLLECTED; CREATING SCHEDULES FOR THE ASSESSMENT AND COLLECTION OF IMPACT FEES; REVISING PROCEDURES FOR ADMINISTERING IMPACT FEES; REPEALING CONFLICTING ORDINANCES AND RESOLUTIONS; PROVIDING A SEVERABILITY CLAUSE; PROVDING FOR A PENALTY NOT TO EXCEED $2,000 FOR EACH VIOLATION THEREOF; AND PROVDING AN EFFECTIVE DATE. WHEREAS, Texas Local Government Code, Chapter 395 authorizes a city to adopt and to amend impact fees for the purpose of financing capital improvements required by new development; and WHEREAS, the City Council of the City of Denton, Texas initially enacted water and wastewater impact fees in accordance with Ordinance No. 98-301, dated on the 15th day of September, 1998; and it is now appropriate and lawfully required that the City once again address the issues of Land Use Assumptions and a Capital Improvements Plan, as well as the subject of Amended Water and Wastewater Impact Fees; WHEREAS, the City Council in accordance with law desires to update its impact fee program by amending land use assumptions, service areas, capital improvements plans and impact fees for water and wastewater facilities; and WI-IBREAS, the City Council of the City of Denton, Texas has duly appointed an Impact Fee Advisory Committee by ordinance; has received written' comments from such Committee; and has adopted Land Use Assumptions and a Capital Improvements Plan for amended water and wastewater impact fees all in accordance with the requirements of Texas Local Government Code, Chapter 395; and WHEREAS, the City Council of the City of Denton, Texas has also received the recommendation of the Denton Public Utilities Board, an advisory committee; and WHEREAS, the City of Denton, Texas, having complied with all applicable substantive and procedural requirements of Texas Local Government Code, Chapter 395, finds it necessary and appropriate to establish amended water and amended wastewater impact fees to pay the costs of certain capital improvements for new development; NOW TI-t[EREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: t Exhibit 3 SECTION t. That the facts~ circumstances, and recitations contained in the preambles to this Ordinance are hereby found and declared to be true and correct. SECTION 2. That the Land Use Assumptions for Water and Wastewater Impact Fees hereby are amended as set forth in Exhibit A, which is attached hereto and incorporated by reference herein as if fully set forth. SECTION 3. That the Capital Improvements Plan for Water and Wastewater Impact Fees hereby are amended as set forth in Exhibit B, which is attached hereto and incorporated by reference herein as if fully set forth. SECTION 4. That Chapter 26 of the Code of Ordinances of the City of Denton, Texas, entitled "Utilities," is hereby amended, which shall read as follows: CHAPTER 26: UTILITIES ARTICLE Vi. IMPACT FEES See. 26-210. Short Title. This Article shall be known and cited as the "Denton Impact Fee Ordinance." See. 26-211. Statement of Purpose. This Article is intended to assure the provision of adequate public facilities to serve new development in the City by requiring each development to pay its proportional share of the costs of such improvements necessitated by and attributable to such new development as related to water and wastewater capital improvements. Sec. 26-212. Authority. This Article is adopted pursuant to Chapter 395 of the Texas Local Government Code and pursuant to the Denton Charter. The provisions of this Article shall not be construed to limit the powers of the City to util/ze other methods authorized under state law, or pursuant to other City powers to accomplish the purposes set forth herein, either in substitution or in conjunction with this Article. The effective date of this Article is September 15, 1998. Sec. 26-213. Definitions. The following words, terms and phrases, as used in this Article, shall have the meanings respectively ascribed to them in this Section, unless the context clearly indicates otherwise: (I) Area-related facility means a capital improvement or facility expansion which is designated in the Impact Fee' Capital Improvements Plan and which is not a site-related facility. Area-related facility may include a capital improvement, which is located offsite, within, or on the perimeter of the development site. (2) Assessment means the determination of the mount of the maximum impact fee per service unit that can be imposed on new development pursuant to this Article. (3) Capital improvement means any water supply; or treatment facilities; or wastewater treatment facilities that have a life expectancy of three (3) or more years, and are owned and operated by or on behalf of the City. (4) Director means the Director of Water Utilities for the City of Denton, or his or her designee. (5) Facility expansion means the expansion of the capacity of any existing facility for the purpose of serving new development. The term does not include the repair, maintenance, modernization or exp~n.~ion of an existing facility to serve existing development. (6) Impact fee capital improvements plan means the adopted plan for a service area, as may be mended from time to time, which identifies the water facilities or wastewater facilities and the/r ~sociated costs which are necessitated by and which are attributable to new development, for a period not to exceed ten (10) years, and which are to be financed in whole or in part through the imposition of water or wastewater impact fees pursuant to this Chapter 26, Article VI. (7) Infilt development means a single-family residence of tess than 1,300 square feet on a lot of less than 6,000 square feet. (8) Land use assumptions means the projections of population and employment growth and associated changes in land uses, densities and intensifies for a service area adopted by the City, as may be amended from time to time, upon which the impact fee capital improvements plan for the service area is based. (9) New development means a project involving the construction, reconstruction, redevelopment, conversion, structural alteration, relocation, or enlargement of any structure, or any use or extension of land, which has the effect of increas/ng the requirements for capital improvements or facility expansions, measured by the service units to be generated by such activity, and which requires either the approval and filing of a plat, or a re-plat pursuant to the City's subdivision regulations, or the issuance of a building permit. (I0) Service area meatus a geographic area within the City or within the City's extraterritorial jurisdiction, within which impact fees for water or wastewater facilities may be collected for new development occurring with/n such area and within which fees so collected will be expended for those types of improvements identified in the type of capital improvements plan applicable to the service area. (JO Service unit means a standardized measure of consumption, use, generation or discharge attributable to an individual unit of development calculated in accordance with generally accepted engineering or planning standards, for a particular category of capital improvements or facility expansions. For water and wastewater facilities, the service un/t shall constitute the basis for establishing equivalency within various customer classes based upon the relationstfip of the continuous duty maximum flow rate in gallons per minute for a water meter of a given size and type compared to the continuous duty maximum flow rate in gallons per minute for a 3/4-inch diameter simple water meter. (J2) Single-family equivalency ("SFE") means an equ/vatency factor, based on the demand associated with the smallest water meter used in the City of Denton, Texas utility system. SFE's are utilized to establish the number of service units to be allocated to various meter sizes used in the City of Denton, Texas utility system. (13) Site-related facility means an improvement or facility which is for the primary use or benefit of a new development and/or which is the for the primary purpose of safe and adequate provision of water and wastewater facilities to serve the new development and which is not included in the impact fee capital improvements plan and for which the developer or property owner is solely responsible under subdivision and other applicable regulations. Sec. 26-214. Impact fee as condition o'f development approval. No new development shall be connected to the City's water or wastewater system within the service area without the assessment of an impact fee pursuant to this Article, and no building permit shall be issued until the applicant has paid the impact fee imposed herein. Sec. 26-215. Land use assumptions. (a) Said land use assumptions for the City shall be updated at least every five (5) years utilizing the amendment procedure set forth in Texas Local Government Code, Chapter 395. Co) Amendment to the land use assumptions shall incorporate projections of changes in land uses, densities, intensifies and population for the service area over at least a ten (I0) year period. Sec. 26-216. Water impact fee service area. There is hereby established an amended water impact fee service area, to include all land within the City and its extraterritorial jurisdiction, as depicted in Exhibit C, which is attached hereto and /ncorporated by reference herein as if fully set forth. Sec. 26-217. Wastewater impact fee service areas. There are hereby established two (2) wastewater impact fee service areas, the boundaries of which are respectively described in Exhibits D and E, which are attached hereto and incorporated by reference herein as if fully set forth. Sec. 26-218. Determination of service units. The number of service units for both water or wastewater impact fees shall be determined by using the land equivalency table, which converts the demands for water or wastewater improvements generated by typical land uses to water meter size, and which is attached hereto as Exhibit F and incorporated by reference herein as if fully set forth. Sec. 26-219. Impact fees per service unit. (a) Maximum impact fees per service unit for each service area shall be established by category of capital improvements. The maximum impact fee per service unit for each service area for each category of capital improvement shall be computed in the following manner: (1) For each category of capital improvements, calculate the total projected costs of capital improvements necessitated by and attributable to new development in the service area identified in the impact fee capital improvements plan; (2) From such mount, subtract a credit in the amount of that portion of utility service revenues, if any, including the payment of debt, to be generated by new service units during the period the capital improvements plan is in effect, including the payment of debt, associated with the capital improvements in the plan; (3) Divide the resultant amount by the total number of service units anticipated within the service area, based upon the land use assumptions for that service area. (b) The maximum impact fee per service un/t for water or wastewater facilities by service area shall be as set forth/n Schedule 1, which is attached hereto and incorporated herein by reference as if fully set forth. Schedule 1 shall be used to assess impact fees. Schedule 1 may be amended from time to time utilizing the amendment procedure set forth in Section 26-228. (c) The impact fee per service unit which is to be paid by each new development wiIh~n a service area shall be as set forth in Schedule 2, which is attached hereto and incorporated by reference as if fully set forth, and shall be an amount less than or equal to the maximum impact fee per service unit established in Schedule 1. Schedule 2 may be amended fi.om time to time utilizing the amendment procedure set forth in Section 26-228. Sec. 26-220. Assessment of impact fees. (a) Assessment of impact fees for any new development shall be made as follows: For land which is unplatted at the time of application for a building permit or utility connection, or for a new development which received final plat approval prior to the effective date of this An/cie, and for which no re-platting is necessary pursuant to the City's subdivision regulations prior to development, assessment of impact fees shall occur at the time application is made for the building permit or utility connection, whichever first occurs, and shall be the amount of the maximum impact fee per service un/t in effect, as set forth in Schedule 1. (2) For a new development which is submitted for approval pursuant to the City's subdivision regulations on or after the effective date of this Article, or for which re-platting results in an increase in the number of service units after such date, assessment of impact fees shah be at the time of final plat recordation, and shall be the mount of the maximum impact fee per service unit in effect as set forth in Schedule 1. (b) Following assessment of impact fees pursuant to subsection (a), the amount of impact fee assessment per sci'vice unit for that development cannot be increased, unless the owner proposes to change the approved development by the submission of a.new application for fmal plat approval or other development application that results in approval of additional service un/ts, in which case a new assessment shal!, occur at the Schedule 1 rate then in effect for such additional service units. (c) Following the vacating of any plat or approval of any re-plat, a new assessment must be made in accordance with subsection (a)(2). An application for an amending plat made pursuant to Texas Local Government Code §2t2.016 V.T.C.A. and the City of Denton Subdivision Ordinance, and for which no new development is proposed, is not subject to reassessment for an impact fee. Sec. 26-221. Computation of impact fees. (a) Following the filing and acceptance of a written application for building permit, the City shall compute the impact fee due in the following manner: (1) . The number of service units shall be determined by the s/ze of the water meter purchased using the land equivalency table incorporated as Exhibit F, or by evaluation of the Director as provided in Section 26-218 or this section; (2) Service units shall be summed for all meters purchased for the development; 6 Co) (c) (d) (e) (f) (g) (3) The total number of service units shall be multiplied by the impact fee per service unit for water or wastewater service facilities using Schedule 1 then in effect as established in Section 26-219; (4) The mount of each impact fee shall be reduced by any allowable offsets or credits for that category of capital improvements, in the manner provided in Section 26-223. The mount of /mpact fee due for new development shall not exceed the mount computed by multiplying the assessed fee for water or wastewater service by the total number of service units generated by the development. The amount of impact fee due for redevelopment shall not exceed the amount computed by multiplying the assessed fee for water or wastewater service by the net increase in service units generated by the redevelopment. The developer may submit or the Director may require the submission of a study, prepared by a professional engineer, licensed in the State of Texas, clearly indicating the number of water and/or wastewater service units which will be consumed or generated by the new development. The Director will review the information for completeness and conformity with generally accepted engineering practices and wilt, when satisfied with the completeness and conformity of the study, multiply the number of service units determined by the study times the impact fee per service unit contained in Section 26~219 above to determine the total impact fee to be collected for the development. The Director may also use recent historical water billing records for existing customers to determine water demands'and SFE equivalents in accordance with data from the most recent Capital Improvements Plan. Whenever the property owner increases the number of service units for a development, the additional impact fees collected for such new service units shall be determined based on Schedule 1 and applicable off_sets, credits, and discounts then in effect and such additional fee shall be assessed and collected at the time the additional meters are purchased. In the event the property owner decreases the number of service units for a development, the property owner shall be entitled to a refund of the impact fee for impact fees actually paid, but only for the amounts represented by the decrease in service un/ts based on the assessed fee and offsets~ credits, or discounts applicable at the time the fee was paid. If the building permit for the property on which an impact fee is paid has expired and a new application is thereafter filed for the identical property and the number of service units, the impact fee previously paid satisfies the requirements of this Article. The knpact fee shall attach to the property for which the impact fee was paid and shall not be transferable to other properties or service units. No building permit shall be issued if the applicant cannot verify payment of the appropriate impact fee and other applicable fees or if existing facilities do not have actual capacity to provide service to the new connection(s). Sec. 26-222. Collection of impact fees. (a) Except as otherwise provided in this Section, the impact fee for the new development shall be collected at the time the City issues a building permit, or if a building permit is not required, at the time an application is filed for a new connection to the City's water or wastewater system or for an increase in water meter size. (b) Except as otherwise provided by contracts with political subdivisions, developer's contracts, or wholesale customers, no building permit shall be issued until ail impact fees have been paid to the City. (c) (d) The City may enter into an agreement for capital improvements with a property owner pursuant to Section 26-229 that establishes a different time and manner of payment. The owner of an existing single-famqly homestead housing unit, actually occupying said homestead, may make payments of any water or wastewater impact fee required by the Article in monthly installments over a period of not more than five (5) years from the date payment of the fee is otherwise required by this Article. The owner of said homestead must execute a promissory note, deed of trust, homestead affidavit, or other documents to be prepared by the City Attorney sufficient to establish an enforceable lien on the real property. All such installment payments shall be subject to interest at a rate equal to a twelve-month average of the 5-year Treasury Note. The interest rate on such note shall be adjusted annually, according to the most current twelve-month average. (e) In the event that a property owner agrees to construct or finance capital improvements in the capital improvements plan pursuant to Section 26-229, the costs of which are to be reimbursed to the owner from impact fees paid fi:om other new developments that will use such facilities, the City may collect impact fees from such other new developments at the time final plats are recorded for such development. Schedule 1 sets the assessment rate and establishes maximum impact fees as set forth in subparagraphs (1) and (2) below: (1) For a new development for which final plat recordation occurred on or after September 15, 1998, but before May 29, 2003, the maximum impact fee per service unit shall be $2,044 for the water service area, and $483 for the Zone 1 wastewater service area. (2) For a new development for which fmal plat recordation occurred prior to September 15, 1998, on or after May 29, 2003, or for any new development which is not subject to paragraph (1), the maximum impact fee per service unit shall be as follows: $3,155 for the water-service area; $1,703 for the Zone 1 wastewater service area; and $2,614 for the Zone 2 wastewater service area. (g) Schedule 2 sets the collection rate for impact fees as set forth in subparagraphs (1) and (2) below: (1) Except as provided in paragraph (2),' impact fees shall be collected and paid as follows: Water Service Area: $3,155 per service unit Wastewater Service Area (Zone 1): $1,437 per service unit (from May 29, 2003 until May 28, 2006) $1,570 per servme unit (from May 29, 2006 until May 28, 2008) $1,703 per sermce unit (from May 29, 2008 until May 28, 2013) Wastewater Service Area (Zone 2): $1,437 per sermce unit (from May 29, 2003 until May 28, 2006) $1,893 per serrate unit (from May 29, 2006 until May 28, 2008) $2,614 per service units (from May 29, 2008 until May 28, 2013) Provided, however, Wastewater Service Area Impact Fees for Zone 1, for Single-Family Residences of less than 1,300 square feet, that are located'on lots of less than 6,000 square feet, shall instead be charged, and the City shall collect a Wastewater Service Area Impact fee of 50% of the adopted Wastewater Service Area Impact Fee for Zone 1. (2) For a new development for which final plat recordation occurred on or after September 15, 1998, but before May 29, 2003, and for which no new service units have been added, impact fees shall be collected as follows: Water Service Area Wastewater Service Area (Zone 1) $2,044 per service unit $483 per service unit (a) See. 26-223. Offsets and credits. The City shall offset the reasonable value of any area-related facihfies, identified in the impact fee capital improvements plan and constructed pursuant to an agreement with the City, except as otherwise provided therein, which are dedicated to and received by the City on or after the effective date of this ordinance, against the amount of the impact fee due for that category of capital improvement. No offsets or credits shall be provided for required over-sizing of water and wastewater lines or hft stations not identified in the capital improvements plan or for pro-rata payments to repay other developers for such over-sizing pursuant to Chapter 35-Development Code; and Subchapter 21-Water & Wastewater Standards. (b) The City shall credit any new development that occurs subsequent to the effective date of this Article, any amount of capital recovery fees which have been collected by the City pursuant to duly adopted ordinances and any impact fees collected by the City pursuant to this Article. (c) All offsets and credits against impact fees shall be subject to the following limitations and shall be granted based on th/s Article and additional standards promulgated by the City, which may be adopted as administrative guidelines. (1) No offset or credit shall be given for the dedication or construction of site-related facilities. (2) No offset or credit shall exceed the impact fee to be collected from new development as established in Section 26-219. (3) The unit costs used to calculate the offsets shall not exceed those assumed for the capital improvements included in the impact fee capital knprovements plan for the category of facility within the service area for which the impact fee is imposed. If an offset or credit applicable to a plat has not been exhausted with~ ten (10) years from the date of the acquisition of the first building permit issued or connection made after the effective date of this Article or within such period as may be otherwise designated by agreement for capital improvements pursuant to Section 26-229, such offset or credit shall lapse. (5) In no event will the City reimburse the property owner or developer for an offset or credit when no impact fees for the new development can be collected pursuant to this Article or for any mount exceeding the total impact fees collected or due for the development for that category of capital improvement, unless otherwise agreed to by the City. (6) No offset shall exceed an amount equal to the eligible costs of the improvement multiplied by a fraction, the numerator of which is the impact fee per service unit due for the new development as computed using Schedule 2 and the denominator of which is the maximum impact fee per service unit for the new development as computed using Schedule 1. (7) Offsets or credits for area-related facilities dedicated to and accepted by the City for a development prior to the effective date of this Article shall be prorated 10 among the total number of service units within such development and reduced by an amount equivalent to the number of existing service units within such development and shall be further reduced by the mount of any participation funds received fi:om the City and by any payments received from other developments who utilize the system facility. (8) The City may participate in the costs of an area-related improvement to be dedicated to the City, including costs that exceed the amount of the impact fees due for the development under Schedule 1 for that category of capital improvements,/n accordance with policies and rules established under the City's subdivision regulations and when incorporated into an agreement for capital improvements pursuant to Section 26-229. The amount of any offset shall not include the amount of the City's participation. (d) Unless an agreement for capital improvements is executed providing for a different manner of offsetting or crediting impact fees due pursuant to Section 26-229, an offset or credit associated with a plat shall be applied to reduce an impact fee at the time of application for the first building perm/t or at the time of application for the first utility connection for the property, in the case of land located within the City's extraterritorial jurisdiction, and, thereafter, to reduce impact fees subsequently to be collected, until the offset or credit is exhausted. Sec. 26-224. Establishment of accounts. (a) The City's Department of Finance shall establish separate interest-bearing accounts clearly identifying the category of capital improvement (i.e. water facilities and wastewater facilities) within the service area for which the impact fee is collected. (b) Interest em-ned by each account shall be credited to the account on which it is earned and shall be used solely for the purposes specified for impact fees as authorized herein. (c) The City's Department of Finance shall establish adequate financial and accounting controls to ensure that impact fees disbursed from the account are utilized solely for the purposes authorized in this Article. Disbursement of funds shall be authorized by the City at such times as are reasonably necessary to carry out the purposes and intent of this Article; provided, however, that any fee paid shall be expended within a reasonable period of time, but not to exceed ten (10) years from the date the fee is deposited into the account. (d) The City's Department of Finance shall maintain and keep adequate financial records for each such account, which shall show the source and disbursement of all revenues, which shall account for ali monies rece/ved, the number of service un/ts for which the monies are received, and wh/ch shall ensure that the disbursement of funds from each account shall be used solely and exclusively for the provision of projects specified in the impact fee capital improvements plan as area-related capital projects. The City's Department of Finance shall also maintain such records as are necessary to ensure that refunds are 11 appropriately made in accordance with this Article. The records of the account into which impact fees are deposited shall be open for public inspection and copying during ordinary business hours. The City may establish a fee for copying services. Sec. 26-225. Use of proceeds of impact fee accounts. The impact fee collected pursuant to this Article may be used to finance or to recoup capital construction costs for water and wastewater facilities identified in the impact fee capital improvements plan and for any purpose authorized in Texas Local Government Code, Chapter 395, V.T.C.A. as mended. Impact fees may also be used to pay the principal sum and interest and other finance costs on bonds, notes or other obligations issued by or on behalf of the City to finance such capital improvements or facilities expansions. (b) Impact fees collected pursuant to this Article shall not be used to pay for any of the following expenses: (1) Construction, acqu/sition, or expansion of capital improvements or assets other than those identified for the water and wastewater utility in the impact fee capital improvements plan; (2) Repair, operation, or maintenance of existing or new capital improvements or facilities expansions; (3) Upgrading, expanding, or replacing existing capital improvements to serve existing development in order to meet stricter safety, efficiency, environmental or regulatory standards; (4) Upgrading, expanding, or replacing existing capital improvements to serve existing development; provided, however, that impact fees may be used to pay the costs of upgrading, expanding or replacing existing capital improvements in order to meet the need for new capital improvements generated by new development; or (5) Admin/strative and operating costs of the City. Sec. 26-226. Appeals. (a) The property owner or applicant for new development may appeal the following decisions to the City Council: (a) the applicability of an impact fee to the new development; (b) the method of calculating the amount of the impact fee due; (c) the availability or the amount of an offset, credit or rebate; (d) the application of an offset or credit against an impact fee due; or (e) the amount of a refund due, if any. (b) The burden of proof shall be on the appellant to demonstrate that the amount of the fee or I2 the mount of the offset, credit or rebate was not calculated according to the provisions of this Article. The appellant must file a notice of appeal with the City Secretary within th/try (30) days following the determ/nation of the mount of the impact fees to be paid by the development. If the notice of appeal is accompanied by a bond or other sufficient surety satisfactory to the City Attorney in an amount equal to the original determination of the impact fee due, the development applicafion may be processed while the appeal is pending. See. 26-227. Refunds. (a) Any impact fee or portion thereof collected pursuant to this Article which has not been expended within ten (10) years from the date of payment, shall be refunded, upon application, to the record owner of the property at the time the refund is paid, or, if the impact fee was paid by another governmental entity, to such governmental entity, together with interest calculated fi:om the date of collection to the date of refund at the statutory rate as set forth in Vernon's .Ann. Civil Statutes, Title 79, Art. 1C.002, or any successor statute. Co) Upon the request of an owner of the property on which an impact fee has been paid, the City shall refund such fees if: (I) Existing service is available and service is denied; or (2) Service was not available when the fee was collected and the City has failed to commence construction of facilities to provide service within two (2) years of fee payment; or (3) Service was not available when the fee was collected and has not subsequently been made available within a reasonable period of time considering the type of capital improvement or facility expansion to be constructed, but in any event no later than five (5) years fi:om the date of the payment. (c) The City shall refund an appropriate proportion of impact fee payments in the event that a previously purchased but uninstalled water meter for which the impact fee has been paid is replaced with a smaller meter, based on the service unit differential of the two (2) meter sizes and the fee per service unit at the time of the original fee payment. A petition for refund under this section shall be submitted to the Director on a form provided by the City for such purpose. Within one (1) month of the date of receipt of a petition for refund, the Director must provide the petitioner, in writing, with a decision on the refund request, including the reasons for the decision. If a refund is due to the petitioner, the Director shall notify the Assistant City Manager of Finance and request that a refund payment be made to the petitioner. 13 Sec. 26-228. Update of plan and revision of fees. (a) The City shall update its land use assumptions and capital improvements plans at least every five (5) years, commencing from the date of adoption of such plans, and shall recalculate the impact fees based thereon ha accordance with the procedures set forth in Texas Local Government Code, Chapter 395, or in any successor statute. Cb) The City may review its land use assumptions, impact fees, capital improvements pl~n.q and other factors such as market conditions more frequently than provided in subsection (a) to determine whether the land use assumptions and capital improvements plans should be updated and the impact fee recalculated accordingly, or whether Schedules 1 or 2 should be changed. Schedule 2 may be amended without revising land use assumptions and capffal improvements plans at any time prior to the update provided for in subsection (a), provided that the impact fees to be collected under Schedule 2 do not exceed the impact fees assessed uuder Schedule 1. (c) If, at the time an. update is required pursuant to Subsection (a), the City Council determines that no change to the land use assumptions, capital improvements plan or impact fee is needed, it may dispense with such update by following the procedures in Texas Local Government Code, Section 395.0575. (d) The City may amend by resolution the land use equivalency table (Exhibit F) at any time pr/or to the update provided for in Subsection (a), provided that the number of serv/ce units associated with a particular land use shall not be increased. Sec. 26-229. Agreement for capital improvements. An owner of a new development may construct or finance a capital improvement or facility expansion designated in the impact fee capital improvements plan, if required or authorized by the City, by entering into an agreement with the City prior to the issuance of any building permit for the development. The agreement shall be on a form approved by the City and shall identify the estimated cost of the improvement or expansion, the schedule for initiation and completion of the improvement or expansion, a requirement that the improvement be designed and completed to City standards and such other terms and conditions as deemed necessary by the City. The agreement shall provide for the method to be used to determine the mount of the offset to be given against the impact fees due for the development or any reimbursement to the owner for construction of the facility. Sec. 26-230. Use of other financing mechanisms. (a) In addition'to the use of impact fees, the City may finance water and wastewater capital improvements or facilities expansions designated in the impact fee capital improvements plan through the issuance of bonds, through thc formation of public improvements i4 (b) (c) districts or other assessment districts, or through any other authorized mechanism, in such manner and subject to such limitations as may be provided by law. Except as otherwise provided herein, the assessment and collection of a impact fee shall be additional and supplemental to, and not in substitution of, any other tax, fee, charge or assessment which is lawfully imposed on and due against the property. The City may pay all or part of impact fees due for a new development talcing into account available offsets and credits pursuant to duly adopted criteria. Sec. 26-231. Conflicting ordinances. All ordinances or parts of ordinances that are in force when the provisions of this ordinance become effective, which are inconsistent or in conflict with the terms or provisions contained in this ordinance, are hereby repealed to the extent of the conflict. Sec. 26-232. Reserved. SECTION 4. That any person violating any provision of this Ordinance shall, upon conviction, be fined a sum not exceeding $2,000. Each day that a provision of this Ordinance is violated shall constitute a separate and distinct offense. SECTION 5. That 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 Denton, Texas hereby declares it would have enacted such remaining portions, despite any such invalidity. SECTION 6. That this Ordinance shall repeal any conflicting ordinances and resolutions to the contrary; it being the intention of the City Council to fully amend all provisions of Chapter 26 of the City of Denton, Texas Code of Ordinances dealing with Impact Fees. SECTION 7. That this Ordinance shall become effective fourteen (14) days fi:om 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, Denton County, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the i3th day of May, 2003. EULINE BROCK, MAYOR 15 ATTEST: JENNIFER WALTERS, CITY SECRETARY APPR~SVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY t6 September 11, 2003 Kim Fugitt Fugitt and Associates Architects 1165 Joyce Blvd Fayetteville, AR 72703 Subject: The Timbers at Denton Water/Wastewater Impact Fees Dear Mr. Fugitt, This letter will serve to communicate the impact fees, meter fees, and facility charges for The Timbers apartment complex in Denton, Texas. Keep in mind the impact fee assessment for an apartment complex is not based on size or number of its meters; the impact fee assessment is based solely on the water and wastewater demands that the complex will place on the system. However, the meter setting fees and monthly facility charges will be based on meter size and number of meters. As stated in the ordinance, "the Director may use recent historical water billing records for existing customers to determine water demands and SFE equivalents in accordance with data from the most recent Capital Improvements Plan." Historical data was used in the assessment of your impact fees. In implementing impact fees for apartment projects, Denton Water Utilities (DWU) has conducted two significant apartment studies. The first study was conducted in 1999 using apartment consumption data of 9 complexes from the years 1998 and 1999. Based on the consumption of these complexes, a Single Family Equivalent (SFE) per bedroom of .28 was calculated from averaging the 9 peak demand values, and has been used as the maximum SFE for an apartment project impact fee assessment. A "Single Family Equivalent" is an equivalency factor, based on the water demands associated with an average single-family residence. Recently a new study of 8 apartment complexes was conducted, using data over a three-year period, to investigate water consumption of newer complexes. This study also used the most recent Capital Improvements Plan to determine water demands and SFE equivalents. The SFE per bedroom equivalent based on the new study is .26 for water and wastewater. The most recent apartment study also individually investigated two separate components of water consumption, domestic and irrigation. All 8 of the apartment complexes represented in the study were built since 1992, the year that the Texas Commission on Environmental Quality (TCEQ), formerly Texas Natural Resource Conservation Commission (TNRCC), instituted a program requiring all plumbing fixtures sold in Texas to comply with specific water use efficiency standards. The Impact Fee assessment, in the case of The Timbers, is based on: 1) the results of the most recent DWU apartment study using local historical data, 2) the water usage data from your apartment complexes in Fort Smith, AK, Broken Arrow, OK, and Denton, TX that was provided to DWU by your firm and METEREX, and 3) our inherent understanding of local apartment complex consumption and use patterns. The data that Exhibit 4 was sent to DWU by your firm was assessed and compared to our data. It was found that sub-metered apartment units might use approximately 10% less water than master metered complexes. DWU has researched national studies relating to sub-metering and has found that the percentages seen here are within the range of those published in national studies. Even though DWU recognizes that the data provided to us is somewhat limited in its ability to be compared with our data in that it mostly differs by region, is limited in its extent over time (6 months - 1 year), does not represent peak usage, and produced inconclusive results, a 10% reduction of impact fees will be reflected in this impact assessment for The Timbers complex for scenarios assuming sub-metering or individual metering. IMPACT FEES Because your firm has not clearly communicated if the complex is going to be master metered or individually metered, and have not specified the source of irrigation water for The Timbers complex, impact fee assessments will be provided for four different scenarios. A 10% reduction has been applied to Scenarios 3 and 4 assuming that the complex will be sub-metered or individually metered. All scenarios presume that there will not be any City of Denton potable water used for irrigating any portion of the golf course. Scenario 1 - City of Denton potable water for domestic and irrigation consumption, and master metered Water Wastewater Clubhouse, Cart Barn, Pro shop - W/WW Total Cost per SFE SFE Impact Fee 208 $3,155.00 $656,240.00 208 $1,437.00 $298,896.00 8 $4,592.00 $36,736.00 Total Fee $991,872.00 Scenario 2 - City of Denton potable water for domestic consumption, the use of effluent for irrigation, and master metered Water Wastewater Clubhouse, Cart Barn, Pro shop - W/WW Total Cost per SFE SFE Impact Fee 104 $3,155.00 $328,120.00 208 $1,437.00 $298,896.00 8 $4,592.00 $36,736.00 Total Fee $663,752.00 Scenario 3 - City of Denton potable water for domestic and irrigation consumption, and sub-metered or individually metered Water Wastewater Clubhouse, Cart Barn, Pro shop - W/WW Total Cost per SFE SFE Impact Fee 197.6 $3,155.00 $623,428.00 187.2 $1,437.00 $269,006.40 8 $4,592.00 $36,736.00 Total Fee $929,170.40 Scenario 4 - City of Denton potable water for domestic consumption, the use of effluent for irrigation, and sub-metered or individually metered Water Wastewater Clubhouse, Cart Barn, Pro shop - W/WW Total Cost per SFE SFE Impact Fee 93.6 $3,155.00 $295,308.00 187.2 $1,437.00 $269,006.40 8 $4,592.00 $36,736.00 Total Fee $601,050.40 If a reduction in impact fees related to alternative irrigation or sub-metering is pursued, adequate controls will be implemented during plan review, building inspections, and the Certificate of Occupancy (C.O.) process to ensure that the property is irrigated through other means and/or sub-meters to individual units have been installed. METER FEES Your firm has inquired about three different meter designs, two master meter configurations, and an individual metering scheme. If the complex is sub-metered from the master meter(s) to the units by your firm the costs of the meter fees and facility charges will be substantially less. Option 1 assumes two 8" water meters, with the lines from the meters to the buildings being private. Theses private lines would not be assessed an inspection fee and could be placed anywhere on the property. Option 2 assumes forty 1½" water meters serving each building with the onsite lines being public. The public lines will be assessed an inspection fee of 3.5% of the total line cost, will need to be located in the easements, and will need to strategically placed outside of paved areas generally within grass areas to be easily read by the meter reader and away from vehicular and pedestrian traffic. If the entire complex is individually metered, Option 3 will require the placement and installation of forty 10 ft. by 3 ft. meter boxes, each containing twelve - 3A" meters. Again the inspection fees will apply and the lines and meters boxes will still need to be placed in the easements and be strategically placed for accessibility and safety. All three Options shall include an additional charge of $580.00 for a 2" meter required to supply the Clubhouse, Cart barn, and Pro Shop. The following meter fees assume the contractor will install the taps. Meter Fees Meter No. Individual Total Size Meters Cost Cost Option 1 8" 2 $16,750.00 $33,500.00 Option 2 1-1/2" 40 $450.00 $18,000.00 Option 3 3/4" 40 (12)* $4,560.00 $182,400.00 40 meter boxes with 12 meters each FACILITY CHARGE The facility charges on water meters at apartment complexes are based on commercial rates. There will be an additional charge of $31.65 per momh for the 2" meter supplying the Clubhouse, Cart barn, and Pro Shop Type Meter Size No. Meters Facility Charge 1 -yr Water 8" 2 $178.00 $4,272.00 Water 1 1/2" 40 $25.75 $12,360.00 Water 3/4" 480 $20.20 $116,352.00 Wastewater 8" 2 $16.20 $388.80 Wastewater 1 1/2" 40 $16.20 $7,776.00 Wastewater 3/4" 480 $16.20 $93,312.00 Option 1 8" 2 $194.20 $4,660.80 Option 2 1 1/2" 40 $41.95 $20,136.00 Option 3 3/4" 480 $36.40 $209,664.00 Demon Water Utilities recommends that your firm master meter the complex either through 2 large meters and private on-site lines, or 40 smaller meters at each of the buildings with public on-site lines. Either of these options would be more cost effective for your firm with regards to meter set fees and monthly facility charges than individually metering the entire complex. All fee scenarios discussed above are based on previous correspondence between your firm and DWU. If you have any additional scenarios you would like to explore, have any questions concerning the fees discussed in this letter, or need additional information, please call me ~ 940-349-7190. Sincerely, Tim Fisher, P.E. Assistant Director of Water Utilities THE TIMBER LINKS APARTMENTS, L.P. October 8, 2003 MS. JENNIFE~ WALTERS CITY SECRETARY 215 E. MCKINNEY DENTON, TX. 76201 RE: TIMBERS AT DENTON IMPACT ~ APPEAL PLF_2sSE BE INFORMED THAT THE TIMBERS AT DENTON LLC. DEV-ELOPE~ OF TH]~ REFF21RE/qCED PROJECT REQUESTS AN APPEAL BEFORE THE CITY COUNCIL AS OUII3NED IN THE DENTON CITY ORDINANCE NO. 2003-137 SECTION 26-226 WiTH REGARD TO TI-YE WATER/WASTEWATER I2ffPACT FEES RECENTLY DETERMINED. LINDSEY MANAGEMENT COMPANY, OF WHICH I AM A PART, BEGAN INW-ESTIGA~G THE DENTON AREA IN EARLY 2002 THROUGH DEMOGRAPHIC STUDIES AND NUMEROUS TRIPS TO DENTON OBSERVING POTENTIAL BUILDING SITES. AN OFFER AND ACCETANCE CONTRACT WAS EXECT!TF_~ JULY 25,2002 FOR TI-IE SUBJECT PROPOERTY- ON AUGUST 22, 2002, Iv[R. BOB BREEDLOVE OF THE BRANNON CORPRATION WAS COMMISSIONED TO ACT AS CIVIL ENGINEER ON ~ PROJECT. ON NOVEMBER 04, 2002, DURING THE INVESTIGATORY PERIOD OF TIlE "T/M]3/EtU./Nv/CC dPARTMENTS' I RE~ AN E-MAIL RF_~PONSE (SEE ATrACXq~.D) FROM MIL DOUG POWELL OF THE CITY PLANNING DEPARTM]gNT RESPONDING TO MANY QUESTIONS OF Wt-~CH ON-~ WAS R.EGA_RDIlqG WATER/WASTEWATER DffPACT FEES. iViR. POWELL'S RESPONSE IiXrDICATED THAT THE IMPACT ~ WOUI~ BE BASED ON METER SIZE AND DIXECTED US TO ~ CITY WE23 SITE WHF_,RE THE TABLE (SEE ATTACI-I-RI-)) WAS LISTF_I). BASED ON THE INFORMATION FROM THAT SCHF_,DULE, THE PROJECT PROCEEDED IN PLANNING AND BUDGETING AND FINANCING WAS SECURED. ON NOVEMBER 6, 2002, AN APPLICATION FOR A SPECIAL USE PERMIT WAS FtLF_JD WITH THE PlxkNNI2qG DEPARTME2qT. ON DECF_2vlBER 3, 2002, REVISIONS WERE SENT TO MS. AUTUMN SPEAR OF TftE CITY PLANNING DEPARTSIENT RESPONDING TO COIvEVIF_~TS AND QUESTIONS OF THE ORIGI2qAL SITE PLAN PROPOSAL. IN DECEMBER OF 2002 WE FIRST INTRODUCED THE PROPOSAL TO THE DENTON PLANNING AND ZONING COlvllvlISSION AND AGAIN, AFTER SOME REVISIONS BASED ON FEEDBACK FROM NEIGHI3ORS, ON JANUARY 8, 2005. TIt]g PROJECT WAS APPROVED BY THE CITY COUNCIL ON FEBRUARY 18, 2003. THE FINAL PLAT WAS SUBMITTED APR_IL 29, 2003. 5 Exhibit 5 - 2 - October 8, 2003 WE FIRST LEARNED OF THE INCREASE IN IMPACT FEES ON AUGUST 1, 2003 WHEN I M]ET PERSONNALLY WITH MIL TIM FISHER OF TIlE DE/qTON WATER UTILTIES DEPARi]kIENT, OVER 2 MONTHS AFrER TIlE FACT. THIS PROJECT HAS BEEN IN VARIOUS STAGES OF APPROVAL SINCE DECEIvIBER 2002, WHEN Tt~ PROJECT WAS FIRST BROUGHT BEFORE THE CITY PLANNING AND ZONiNG FOR ITS INITIAL APPROVAL. WE WERE AT NO TIME INFORMED OF CHANGES IN NEITH]FJ[ TH~ IMPA~ FEE SCt-tF_X)ULE NOR/lqFORMATION OF PF_2qD]2'qG ]2vlPACT FEE iNCREASES, FURTHERMORE, THE CIVIL ENGINEER OF RECORD (BRANNAN CORP) PROVIDED FINAL PLAT DRAWINGS TO CITY STAFF APRIL 29, 2003, ONE-MONTH PtLIOR TO TIq]E INCREASE. IT IS OUR CONTENTION THAT ONCE DRAWINGS HAVE BEF,2W SUB~ FOR APPROVAL, IT IS OUTSIDE THE DEVF_J_f)PERS ABII2I~ TO CONTROL APPROVAL DEADLINES AS THAT IS A FUNCTION OF CITY STAFF PROCESSES. SAID APPROVAL PROCESS MAY LAST FOR WEEKS OR POSSIBLY MONTHS BASED ON ~ STAFF'S WORKLOAD AND/OR TH]E~ INTF3,EST IN COMPLETING THE PROCESS IN A TLMF. I.Y MANNER REGARDLESS OF THE DEVELOPERS TIAIELY RESPONSE OR EFFORTS. AGAIN, NEITHF_,R CIVIL ENGINF~R NOR DEVELOPER WAS INFORMED OF PENDING OR PROPOSED CHANGES iN THE FEE STRUCTURE. THIS ADDITIONAL AN-D UNFORESF. I~.N FINANCIAL BURDEN PLACES THE ENTIRE PROJECT AT RISK OF ABANDOn. WITH Al J, DUE RESPECT, DUE TO A LACK OF COM/vlLR~CATION OF THE CITY STAFF WITH THE DEVELOPER AND ~ CITY STAFF'S iNABILITY TO REVIEW AND APPROVE TIlE INFORMATION PROVIDED 30 DAYS PRIOR TO TIlE UNADVERTISED FF_Jg iNCRF_3~E, WE REQUEST THAT THE I]MPA~ FEE BE CALCULATED USING TIIE SCI-IEDLU-~ FIRST PROVIDED US BY MIR.. POWI~.I J. NOVEMBER 4, 2002. RESPEC'TFIII_LY, 1165 JOYCE BLVD. ' FAYETTEVILLE, AR. ' 72701 PHONE: 479-521-6686 · FAX: 4-79-527-8855 kim.fu~itt From: Sent: To: Subject: Doug Powell [Doug. Powelt@cityofdenton.com] Monday, November 04, 2002 3:00 PM kim.fugitt@fugittarc+com Re: TIMBERS AT DENTON GOLF COURSE AND MULTI-FAMILY COMMUNITY. Kim, Sorry it has taken so long for the response, but here it is: >>> "kim.fugitt" <kim.fugitt@fugittarc.com> 10/29/02 02:08PM >>> JERRY Signature Kim Fugitt Fugitt and Associates Architect 1165 Joyce Blvd. P.O. Box 13000 Fayetteville, Ar 72703 (479)527-8862 (479)527-8855 fax DOUG, I'M HOPING YOU CAN ANSWER SOME OF THESE QUESTIONS OR GIVE ME THE NAMES OF THE PEOPLE THAT I NEED TO SPEAK TO TO GET THEM. 1. ARE THERE ANY OTHER FEES TO BE PAiD TO THE CITY BESIDES BUILDING PERMITS, WATER TAPS, WATER METERS, SEWER TAPS AND THE IMPACT FEE BASED ON WATER METER SIZE? INSPECTION FEES? OPEN SPACE OR PARK FEES? Yes, there are two parks fees one at the time of p~atting and the other at the time of building permit; and engineering inspection fees at the time of platting. 2. IS LANDSCAPING REQUIRED TO BE IRRIGATED? Yes, unless it is an approved xerisacpe plan 3. IS THERE A COVERED PARKING REQUIREMENT? No 4. IS A GRADING PERMIT REQUIRED PRIOR TO DOING ANY EXCAVATION? Yes 5. WILL WE BE REQUIRED TO MAKE IMPROVEMENTS ON EDWARDS ROAD? Yes, perimeter paving at a minimum 6. CAN YOUR GIVE ME THE APPROVAL PROCESS FROM WHERE WE ARE NOW TO SECURINNG BUILDING PERMITS? (ie PLANNING COMMISSION APPROVAL, CITY COUNCIL, SITE PLAN APPROVAL, BUILDING PLAN APPROVAL, BUILDING PERMITS) Table 10. Wastewater Tap Fees ~plication - This schedule applies to the installation, removaf, or relocation of wastewater taps by the City of Denton Utility Department at the request of a person, firm~ association or corporation. Tap Fees - Any person, association of persons, or corporation that requests a wastewater main tap be removed, installed, or relocated by the Utility Department shall pay in advance to the Utility Department the following applicable fees: Paved Street 10 inch Unpaved Street Size of Tap 4 inch $1,850.00 $1,300.00 6 inch $1,950.00 $1,450.00 8 inch $2,050.00 $1,600.00 $2,200.00 $1,725.00 $150.00 6 inch - 12 inch line Fees For Installations Not Listed For installation of a tap for which a fee is not specified, the requestor shall pay in advance a deposit based upon the estimated cost of such installation, or similar work, plus an administration charge of 20%. Upon completion of the instalJation or similar work requested, the customer shall be billed at actual cost, as determined by the UtiLity Department, plus a 20% administrative charge. A,,ny excess deposit shall be refunded to the customer. Table 11. Impact Fees Schedule Impact'fees are based on the'"Single Family EquNeler~i';'- (SFE) which is based on the size of the water meter. One SFE unit is the water or wastewater demand associated with the smallest water meter in our system (5/8" X 3/4"), which equates to a single4amily residence. Impact fees vary in direct proportion to meter size and the capacity to use water or dispose of wastewater compared to the base meter unit, SFE, as referenced in the cost table below. 5/8" X 3/4" 1.0 $2,044.00 $483.00 $2,044.00 $483.00 1" 2.5 . $2,044.00 $483.00 $5,110.00 $1,208.00 I ~/&" 5.0 $2,044.00 $483.00 .$..1.0,220.00 $2,415.00 2" 8.0 $2,04'4.00 $483.00 $16,352.00 $3,864.00 3" 16.0 .. $2,044.00 $483.00 $32,704.00 $7,728.00 4" ' 25.0 $2,044.00 $483.00 $51,100._0.0 $12,075.00 6" 50.0 .... $2,044.00 $483.00 $102,200.00 $24,150.00 8" 80.0 $2.,044.00 $483.00 $163,520~00 $38,640.00 10" "~ 15.0 $2,044.00 $z~83.00 $235,060.00. $55,545.00 There is a separate impact fee for water and wastewater. You may or may not be liable for both fees, depending whether you are connected to water, wastewater or both City of Denton services. Impact fees are accessed at the time of final platting and payable at the time of issuance of the building] permit., ,, , Permit 1 .doc 5 215 E. McKINNEY STREET, DENTON, TX 76201 · (940) 349-8158 · FAX (940) 349-8120 UTILITY ADMINISTRATION DATE: October 9, 2003 TO: Honorable Mayor Brock and Members of the DeNon City Council FROM: Michael S. Copeland, Utility Attorney Appeal of Impact Fee Determination by City Staff filed by The Timbers at Denton, LLC Attached please find the appeal of impact fee documents, submitted by William Kim Fugitt, AIA, Fayetteville, Arkansas, representing The Timbers at Denton, LLC (the "Developer") filed as required with the City Secretary on September 30, 2003 (Exhibit "A"). This is a timely submission, it being made within thirty- (30) days of the determination of the impact fee to be charged by City Staff (per letter of Tim Fisher, Assistam Director of Water Utilities dated September 11, 2003). Mr. Fisher's detailed letter to the Developer is attached to these materials (Exhibit "B"). This matter is being submitted to you for your consideration and determination. The operative ordinance provision providing the right to this appeal is found in the impact fee Ordinance No. 2003-137, §26-226. A copy of the Ordinance (without voluminous Exhibits attached), is attached hereto as Exhibit "C" and is furnished for your convenience. On October 20, 2003, the Public Utilities Board will consider this appeal. I will announce the Board's recommendation at the outset of the item on your October 21, 2003 Council agenda. Under §26-220(a)(1) of the above Ordinance assessmem of impact fees "shall occur at the time application is made for the building permit or utility connection, whichever first occurs, and shall be the amoum of the maximum impact fee per service unit in effect, as set forth in Schedule 1." The review fee for the project was unpaid by Developer umil June 11, 2003. In August 2003, the Developer applied for a building permit. These events were both after the effective date of the ordinance. There has been no application for utility connection to date. Therefore, the new impact fees, made effective by the City Council on May 29, 2003, would apply, not those impact fee rates in effect on the date of Exhibit 6 former Director of Planning, Doug Powell's e-mail to Mr. Fugitt of November 4, 2002, as urged by Developer. Under §26-222(a) the impact fees for a new development "shall be collected at the time the City issues a building permit, or if a building permit is not required, at the time an application is filed for a new connection to the City's water or wastewater system or for an increase in water meter size." The important date to keep in mind is the date of final plat recordation. §26-222(f) and (g) clearly provide that the assessment rate is set, and the maximum impact fees for a new development for which final plat recordation occurred after May 29, 2003...the maximum impact fee per service unit shall be as follows: $3,155 for the water service unit... $1,437 for the service unit in the Zone 1 wastewater service area... As stated herein, the date of final plat recordation has not yet occurred with respect to this property. Mr. Fisher, in his September 11, 2003 letter to the Developer clearly illustrates how the impact fees and meter fees for the project would be determined in accordance with the City ordinance. He offered to the Developer, four (4) different scenarios for the impact fees, depending upon the Developer's preferences. In my opinion, you can dispose of this appeal on the merits and the facts, by denying it, as the fees clearly fall squarely within the operation of the new impact fee ordinance enacted by the City Council, and effective on May 29, 2003. Neither appeal to the individual facts and circumstances that the Developer has suffered are legally persuasive or determinative of this appeal and should be disregarded. However, for the sake of completeness, I will list the major factual appeals below: The first appeal was to an alleged relied-upon e-mail sent by the Doug Powell, Denton's former Director of Planning on November 4, 2002, to Developer. This was sent in response to six questions raised by the Developer. Nowhere in the e-mail produced (one page) does Mr. Powell answer the Developer's question, number 1 respecting the subject of impact fees. Developer alleges that Mr. Powell directed him to the city's e-mail site by Mr. Powell's response. The second appeal is that the Developer complains about "due to a lack of communication of the City Staff with the Developer" which blames the "unforeseen financial burden" upon the City. The City is under no legal duty to keep anyone advised of the status of its laws and ordinances. The information that Developer came into by its reference to the city's website, in November 2002 was current. Discussions were had between the Developer and City staff after November 2002 through the present regarding the subject of impact fees. In April 2003, if not earlier, Staff informed Developer that the impact fees were being revised and based upon their platting schedule, that Developer would likely fall under the revised impact fee schedule. The Developer alleges "neither civil engineer nor Developer was informed of pending or proposed changes in the fee "Dedicated to Quality Service" www. cityofdenton.corn structure" implying that the City had a duty to update certain members of the Developer's team. There is no such duty imposed upon the City. The City has communicated with the Developer. This argument is unpersuasive. In fact, there were numerous newspaper public notices contained in the Denton Record Chronicle in the months preceding the consideration and the enactment of the ordinance. There were also public hearings conducted by the Demon City Council on March 25, 2003 and April 15, 2003, posted and noticed in accordance with applicable law. The statute providing for notice [§395.044(a) Texas Local Governmem Code] also requires the City Secretary to notify a party who requests notice from the City by certified or registered mail pertaining to notice of the order setting the hearing on impact fees. Developer did not request such notice from the City Secretary. The notice publication requirements were completed as provided in Chapter 395 of the Texas Local Government Code, and the ordinance providing for amended impact fees, became effective on May 29, 2003. The third appeal is that Developer criticizes City Staff for "its inability to review and approve the information [the final plat] provided 30 days prior to the unadvertised fee increase." Developer submitted its final plat to City Staff on April 29, 2003. The City Staff apparently did not complete its review of the information within the 30 days preceding May 29, 2003. However, there is good reason for it not to commence its examination and review. The City has evidence that the Developer did not pay the applicable review fee until after the effective date of the ordinance - payment of the fee was done on June 11, 2003. The Developer's submittal was considered incomplete umil that date. City Staff was accused of a lack of communication with the Developer. Developer, however, did not have a complete submittal. This period is of no consequence to Developer's legal position, as its submittal was incomplete and triggered no right to have the application examined until the submittal was complete - after the effective date of the ordinance. The allegations of Developer of an "unadvertised fee increase" are also unpersuasive. There are numerous times that notices were published in the Denton Record Chronicle prior to the effective date of the ordinance. This argument has no legal merit. Alternatively, I believe that you could also recommend a denial of the appeal on procedural grounds - that is it not being based upon one of the five "decisions" that may be appealed to the City Council by the Developer. §26-226(a) of the impact fee ordinance is clear that only the five listed decisions may be appealed to the City Council. What the Developer is appealing is whether a prior ordinance's rate is applicable to it, rather than the current Ordinance's rate. "Dedicated to Quality Service" www. cityofdenton.corn This is not the same as questioning the "applicability of an impact fee to the new development" cited as permitted appeal circumstance letter (a). The permitted appeal is whether there is any impact fee due upon the new development. However, because of the lack of any persuasive evidence when the appeal is considered on its merits, I recommend a denial on the merits, and not this procedural ground. For the reasons stated above, I recommend that you deny the appeal of the Developer, The Timbers at Denton, LLC. S:\Our Documents\CorrespondencehMemos\03\Opinion and Recommendation re Appeal of Impact Fee-Timber Links-CC-2003.doc "Dedicated to Quality Service" www. cityofdenton.corn PLANNING AND DEVELOPMENT DEPARTMENT City Halt West - 221 N Elm - Denton, Texas 76201 voice: (940) 349-8350 fax: (940) 349-7707 www. cityofdenton.com 2003 Review Schedule Jan. 06,03 Jan. 15, 03 Jan 16,03 Jan. 13,03 Jan. 22,03 Jan. 23,03 Jan. 20,03 Jan. 29,03 Jan. 30,03 Jan. 27,03 Feb, 05,03 Feb. 06,03 Feb. 02,03 Feb. 12,03 Feb 13,03 Feb. 14, 03 Feb. 21, 03 Feb. 28, 03 Mar. 07, 03 Mar. 14, 03 Mar. 21, 03 Mar. 28, 03 Apdl 02, 03 Apd118,03 Apd125,03 May 02, 03 May 09,03 May16,03 May 23,03 May 30, 03 June 06, 03 June 13, 03 June 20, 03 June 27, 03 July04, 03 July 18,03 July 25,03 Aug 01,03 Aug. 08,03 Aug. 15,03 Aug. 22,03 Aug. 29,03 Se~.05,03 Se~.12,03 Se~.19,03 Se~.26,03 O~.03,03 Oct. 17, 03 Oct. 24, 03 O~.31, 03 Nov. 07, 03 Nov. 14, 03 Nov. 21,03 Dec. 12,03 Dec. 19,03 Jan. 03,04 Jan. 09,04 * Additionaltime added duet o Holiday's Revised 1/2003 Exhibit 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DRAFT CITY OF DENTON, TEXAS PUBLIC UTILITIES BOARD MEETING MINUTES October 6, 2003 9:00 A.M. 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, October 6 2003, 2003 at 9:00 a.m. in the Service Cemer Training Room, City of Demon Service Cemer, 901-A Texas Street, Denton, Texas. PRESENT: John Baines, Yolanda Guzman, George Hopkins, Charldean Newell, Dick Smith and Don White EX OFFICIO MEMBERS Howard Martin, ACM/Utilities EXCUSED: Bill Cheek ITEMS FOR INDIVIDUAL CONSIDERATION: 3) Determine a recommendation for the City Council regarding the appeal of William Kim Fugitt, AIA (The Timbers at Denton, L.L.C.) brought pursuant to §26-226 of City of Denton Ordinance No. 2003-137, involving the imposition of Impact Fees. Tim Fisher, Assistant Director of Water Utilities, presented this item. The Timbers at Demon, L.L.C. (the "Developer") executed an offer and acceptance letter comract for a property located on Edwards Road on July 25, 2002. In December of 2002 the developer introduced the site plan proposal to the Denton Planning and Zoning Commission, which was revised and resubmitted on January 8, 2003. The City Council approved the project on February 18, 2003. During the same period of time the City of Denton was in the process of updating the Capital Improvemems Plan (CIP) and revising impact fees. The Public Utilities Board approved the CIP February 3, 2003. Numerous newspaper public notices were posted in the Denton Record Chronicle in the momhs preceding consideration and enactmem of the ordinance, including Notice of Public Hearing on land use assumptions and CIP relating to the possible amendment of the impact fees. On September 11, 2003, staff provided the developer with an impact fee assessment letter for The Timbers at Denton. The letter clearly illustrated how impact fees and meter fees for the project were determined in accordance with the current City impact fee ordinance. Page 1 of 3 EXHIBIT 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 William Fugitt, AIA appeared for the developer and addressed the Board. The board had been earlier presented with the written appeal documents of the developer. The board also considered the legal opinion of Michael Copeland, Utilities Attorney. Board Member Dick Smith asked when the final plat was approved. Fisher responded that the preliminary and final plats were both approved on June 25, 2003. He explained that the preliminary plat had not been approved at the time the final plat was submitted. Fisher also commented that the final plat was incomplete upon submittal, but staff accepted it anyway. It did not contain a traffic impact analysis or a response to the preliminary plat comments that staff had previously provided for the applicant. Smith then asked if the impact fee is decided when the final plat is approved or when it is filed. Michael Copeland, Utilities Attorney, explained that it is determined when the final plat is filed. Smith asked if the plat had now been filed. Fisher stated that, to his knowledge, the final plat had not been filed within the last 5 days. Smith asked the reason it had not been filed. Representatives of Fugitt and Associates stated that they did not know the reason it had not been filed. Kevin Roberts, Senior Engineer for Development Review, Engineering and Capital Projects, explained that there are a number of items that need to be included with the final plat; development contracts, in which the developer agrees with the City and the contractor to make public improvements, inspection fees and tax certificates are also included in the development contracts. Roberts believed the City had received the mylars and blue-lines necessary for filing the plat, but the other documents had not been received. Smith asked if there was a timeframe between approvals of a plat and when the plat is filed. Fisher responded that the timeframe could be as long as two years, and added that it is not uncommon to find a large gap between approval and filing. Board Member Charldean Newell pointed out that the issue is not the filing of the plat, the issue is the change in process, taking place at the same time that this application was being processed. She suggested that the Board take into consideration who is responsible for communicating the changes to the impact fees and who is responsible for the deadlines that were not met. Smith stated that he found no basis for approving the appeal because the deadlines were missed. Smith was sympathetic with Mr. Fugitt due to personal frustrations in seeking plat approval, but he pointed out that the City is under no obligation to inform developers of pending changes. He also commented that the deadline for impact fee determination is when the plat is filed, which has yet to be done. Hopkins commented that the Board is not simply considering this transaction, the Board is discussing policy, and if the Board does not deny this appeal, they may have to consider similar contentions associated with past fees in the near future. Board Member John Baines asked for information regarding the current status of the project. Fugitt explained that they are currently in the grading process and no infrastructure is in place. He informed the Board that the next step would be water sewer inspection fees and zoning plans. Page 2 of 3 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 Smith commented that although the City is under no obligation to notify applicants of changes that might affect them, it might be a customer friendly gesture to notify them. He followed up by stating that under the circumstance, there was no way that the Timbers at Denton could have received plat approval in time. Newell stated that, from a public relations standpoint, it would benefit the City to develop a routine method of notifying applicants of impending policy changes. Fisher pointed out that staff was in the process of adjusting the impact fees, and was not aware of the timeframe involved. Staff was at-the-time reluctant to communicate that they were going through the Public Hearing process on impact fees. Fisher commented that he did speak to the engineer on the project on April 10, 2003, informing him that the City was going through a fee change. He asked him what the schedule for the project was and provided him with a cost estimate of the fees, which was slightly lower than the current fees. Baines suggested a recommendation to the City Council that they consider a facilitator for the larger projects, who would keep the lines of communication open, thereby ensuring the City receive as much money as possible. Board Member George Hopkins moved to deny the appeal, with a second from Board Member Dick Smith. The motion to deny the appeal was approved unanimously by a vote of 6-0. Page 3 of 3 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: November 4, 2003 Parks and Recreation Department Howard Martin, ACM 349-8232 SUBJECT Hold a public hearing and consider adoption of an ordinance graining approval of an off- site sub-surface use of Mack Park, and Lake Forest Park for the purpose of oil and gas drilling operations in accordance with Chapter 26 of the Texas Parks and Wildlife Code; providing for an oil and gas lease; and providing an effective date. BACKGROUND Gas companies have requested consideration of off-site sub-surface use of parkland for the purpose stated, in order to drill for oil and natural gas deposits. Public parks are protected under State law, including a change in the use of parkland. Chapter 26, Protection of Public Parks and Recreational Lands, of the Texas Parks and Wildlife Code requires that: (a) a municipality of this state may not approve any program or project that requires the use or taking of any public land designated and used prior to the arrangement of the program or project as a park unless the municipality, acting through its duly authorized governing body or officer, determines that: (1) there is no feasible and prudent alternative to the use or taking of such lan& and (2) the program or project includes all reasonable planning to minimize harm to the land, as a park, resulting from the use or taking. (b) .4 finding may be made only after notice and a hearing as required by this chapter." To meet the requirements of the Chapter 26 code, the Parks and Recreation Department has reviewed all other possible alternatives. These alternatives included: Allow onsite drilling for natural gas and oil on park acreage. This option will remove parkland acreage from recreational use. It will also invoke the land conversion process that will require the city to replace the land being used for drilling by adding land adjacem to the park or another park in the general area. Also the agreement with Texas Parks and Wildlife Department restricts drilling for minerals and mining on the park surface when Local Park Developmem Gram funds were accepted in these parks. Staff is not recommending this alternative because it does not meet acceptable legal agreements and raises concerns related to land and environmemal issues. Do not allow drilling operations to penetrate below the park land. This option will not provide the ability to extricate oil and gas minerals from the land and would eliminate any financial returns from mineral resources to the City of DeNon. Permit the off-site drilling of gas and oil wells to extract the natural gas resources that may exist under the surface of the park. Off-site drilling has the least impact on parkland. Since all drilling will be done from adjacem property, no parkland will be disturbed. It allows for cominued recreational use of the land and has the potential to produce future financial resources for the City of Denton. If the proposed oil and gas leases are allowed, a value must be placed on the acreage used and charged to the gas companies. Compensation to the City of DeNon will be determined through the public bidding process. OPTIONS City Council has the option to approve the ordinance as presemed which will allow off- site drilling at Mack and Lake Forest Park, deny the ordinance, or provide an alternative direction to staff. RECOMMENDATION After reviewing all other alternatives, staff recommends approval of the use of Mack Park, and Lake Forest Park for off-site oil and gas leasing. There will be no major impact on current park operations or programs. The Parks and Recreation Department confirms that the City of DeNon has investigated all other alternatives and has used reasonable planning to minimize harm to the land. ESTIMATED SCHEDULE OF PROJECT Construction is projected to begin in wimer of 2003/2004. PRIOR ACTION/REVIEW The Parks, Recreation and Beautification Board will consider this item at their November 3, 2003 meeting. Their recommendation will be available to City Council on November 4, 2003. FISCAL INFORMATION Compensation related to this use will be determined at time of public bidding. It is reasonable to expect that financial consideration for leasing of land and royalties on production of gas and oil will be at market rates to benefit the City of Denton. BID INFORMATION Not applicable EXHIBITS: 1. Ordinance 2. Maps (Exhibit A, B) Respectfully Submitted: Prepared by: Robert K. Tickner, Superintendent Parks and Recreation Department Janet Simpson, Interim Director Parks and Recreation Department ORDINANCE NO. AN ORDINANCE GRANTING APPROVAL OF A SUB-SURFACE USE FOR MACK PARK AND LAKE FOREST PARK FOR THE PURPOSE OF AN OIL AND GAS NON-DRILL SITE/POOLING AGREEMENT IN ACCORDANCE WITH CHAPTER 26 OF THE TEXAS PARKS AND WILDLIFE CODE AND AUTHORIZING THE ADVERTISEMENT FOR BIDS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Section 26.001 of the Texas Parks of Wildlife Code provides that public land designated and used as a park may be used for a non-park purpose if the City Council finds after notice and hearing that there is not feasible and prudent alternative to the use of such land for the proposed project and the proposed project includes all reasonable planning to minimize harm to the park resulting from such use; and WHEREAS, the City of Denton desires to provide for a sub-surface use of Mack Park and Lake Forest Park for the purpose of an Oil and Gas Non-Drill Site/Pooling Agreement, ("the Project"); and WHEREAS, the City provided notice in the Denton Record Chronicle on October 13, 20, 27, 2003 of a Public Hearing to be held on November 4, 2003 in the Council Chambers to consider the alternatives to the sub-surface use of Mack Park and Lake Forest Park for the purpose of an Oil and Gas Non-Drill Site/Pooling Agreement; and WHEREAS, the City Council on November 4, 2003, received testimony at a public hearing on the issues of no feasible and prudent alternative to the use of the property for the proposed project and that the project includes all reasonable planning to minimize harm to Mack Park and Lake Forest Park from the sub-surface use of these parks for the purpose of an Oil and Gas Non-Drill Site/pooling Agreement; and WHEREAS, the City Council finds that the project does not fall within the purview of Section 253.001 of the Texas Local Government Code; and WHEREAS, the City Council finds that there is no feasible and prudent alternative to the use of the park land and that the project includes ail reasonable planning to minimize harm to the park as a result of the project; and WHEREAS, the City Council desires to authorize the advertisement for bids under Chapter 71 of the Texas Natural Resources Code. NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The sub-surface use of Mack Park and Lake Forest Park for the purpose of an Oil and Gas Non-drill Site/Pooling Agreement is hereby allowed and the surface of the park may still be used by its patrons after completion of the Project in the same manner it was used prior to the Project. EXHIBIT 1 S:\Our Documents\Ordinances\03Wlack & Lake Forest Park Use.doc SECTION 2. The advertisement of bids for the purpose of an Oil and Gas No drilling/Pooling Agreement for Mack Park and Lake Forest Park is hereby authorized. SECTION 3. The rights and benefits set forth in this ordinance may not be assigned without the express written consent of the City. SECTION 4. The findings contained in the preamble of this ordinance are incorporated into the body of this ordinance. SECTION 5: This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ., 2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINEBROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY Page 2 of 2 Exhibit A Proposed Offsite Gas and Oil Drilling Mack Park Fountains of Denton Apartments ~ntial Gas sites gas sites EXHIBIT 2 rs Exhibit B Proposed Offsite Gas and Oil DHlling Lake Forest Park Potential gas drilling sites Park POtential gas drilling sites Acme Brick Clay Mine itill ! '"!ii I AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: November 4, 2003 Planning and Developmem Departmem John Fortune, Assistam City Manager SUBJECT Z03-0019 (Planned Development 120 - North Pointe) Hold a public hearing and consider adoption of an ordinance amending the Detailed Plan for Planned Developmem 120 (PD-120) for approximately 50 acres. The property is generally located along the south side of the proposed extension of Hercules Lane approximately 1100 feet east of Nicosia Street. Residential and open space lots are proposed. The Planning and Zoning Commission recommends approval with conditions (7-0). BACKGROUND Applicam: Mitchell Planning Group Fort Worth, Texas The applicam is proposing 16 additional residemial lots (for a total of 470), the realignmem of the future extension of Hercules Lane and the reduction of usable open space. This amendmem encompasses the last 2 phases (Phases 4 and 5) of the single-family component of Planned Development 120. The approved Concept Plan (Ordinance 98-324) allows for a maximum of 470 single-family lots. However, the approved Detailed Plan (Ordinance 2000-135) has 454 residemial lots. The proposed amendmem will increase the total number of lots to 470 as allowed by Ordinance 98- 324 and maimain the required minimum lot sizes (7,000 sf) and architectural standards established in the previous PD ordinances. This zoning application is being reviewed and considered under the regulations of Article IV Chapter 35 of the Code of Ordinances pertaining to planned developmem districts. The proposed Amending Detailed Plan, as submitted, is compatible with The DeNon Plan and surrounding land uses. Public notification information is provided in Attachment 3. As of this writing, staff has received one (1) response in favor from a property owner within 200 feet of the subject site. OPTIONS 1. Approve as submitted. 2. Approved with conditions 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval (7-0) with the following condition: No structures, fences or pools shall be located within thirty feet (30') of the centerline of the existing electric transmission line located along the northern property line of the subject site. ESTIMATED PROJECT SCHEDULE A revised preliminary plat reflecting the changes proposed will be required. A final plat will also be required prior the issuance of building permits. PRIOR ACTION/REVIEW The following is a chronology of Planned Development 120, commonly known as North Pointe: Zoning Chronology Application Ordinance Approval Date Acreage Concept Plan 86-173 Sept 2, 1986 412.12 Amended Concept Plan 98-324 Oct 6, 1998 270.48 Detailed Plan 2000-135 April 4, 2000 162.527 Platting Chronology Plat Phase ApprovalDate Acreage # SF Lots # Open Space Lots Preliminary All April 4, 2000 159.4 454 3 Final 1 July 26, 200 25.6 107 0 Final 2 March 12, 2003 27.4 109 0 Final 3 March 12, 2003 25.6 95 0 ATTACHMENTS 1. StaffAnalysis 2. Maps 3. Public Notification 4. Photos 5. Approved Detailed Plan (Ord. 2000-135) 6. Proposed Amending Detailed Plan 7. Letter from Applicant 8. City of Denton Parks and Recreation Department Memorandum 9. October 8, 2003 Planning and Zoning Commission Minutes 10. Ordinance Prepared by: Deborah Viera, AICP Planner II Resp~}~lly submitted: Kelly ~pent~i~'AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary of Request An Amending Concept Plan encompassing approximately 270 acres of Planned Development 120 (PD-120), which allowed a maximum of 470 single-family lots was approved in 1998. In 2000, a Detailed Plan showing 454 residemial lots was approved. The proposed amendmem encompasses approximately 50 acres and increases the total number of lots by 16 for a total of 470 residential lots. Along with the realignment of Hercules, the internal street alignment has been revised and the amoum of usable open space (although still in excess of minimum requiremems established in the Concept Plan) has been reduced. (Attachmem 6). Nevertheless, the Parks and Recreation departmem has indicated that a trail could be accommodated within the proposed 20 foot corridor along the drainage easemem (behind Lots 1 through 11, Block 7 of the Amending Detailed Plan). (Attachmem 8) Existing Condition of Property Property History. February 20, 2002 - The subject property retained the Planned Developmem 120 (PD-120) zoning status and land use classification by Ordinance 2002-040. Adjacent zoning: North: Neighborhood Residemial 6 (NR-6) and Planned Developmem 120 (PD-120) zoning districts (vacam land) South: Planned Developmem 120 (PD-120) zoning district (regional detemion pond) East: neighborhood Residemial 6 (NR-6) zoning district (McKamy Evers subdivision being developed West: Planned Developmem 120 (PD-120) (residemial lots being developed) Comprehensive Plan Analysis Planned Developmem 120 is within the "Neighborhood Centers" future land use area. These areas may develop in convemional patterns or may be developed in a pattern of 'neighborhood cemers'. Neighborhood cemers are oriemed inwardly, focusing on the cemer of the neighborhood and comaining facilities vital to the day-to-day activity of the neighborhood. A neighborhood center might contain a convenience store, small restaurant, personal service shops, church or synagogue, daycare, individual office space, a small park and perhaps an elememary school. Planned Developmem 120 includes multi-family, office, and neighborhood services that would be part of future developmem phases. Planned Developmem 120, after being built out, would provide for the non-residemial land uses necessary to support the adjacem residemial developmems as imended for neighborhood cemers. The proposed Concept Plan as submitted is compatible with The DeNon Plan and surrounding land uses. Development Review Analysis Transportation The existing alignmem of Hercules (Attachmem 5) connects to the McKamy Evers subdivision to the east. The applicant is proposing to shift Hercules to the North running it parallel with the northern property line and an existing electric transmission line. The new alignmem will require the redesign and replatting of the McKamy Evers subdivision. The applicam has indicated that they have approached the developers of the McKamy Evers subdivision and they are in agreement with the proposed realignment. Vehicular connectivity to the North is also important. The realignment of Hercules will provide access to the property to the north opposite Street E and the applicam is providing one (1) street stubbed to the North opposite Street C. to provide future vehicular connectivity with the property to the North The proposed street stub and the reverse curve (between Streets D and E) would be developed underneath the transmission facilities running parallel to the north boundary of the subject site. DeNon Municipal Electric (DME) has no issues with streets being constructed underneath the power poles as long as the street design does not interfere with the location of the transmission lines. However, DME does have a concern with the location of the transmission lines on Lot 26, Block 12 and Lot 1, Block 13. For the voltage and construction type the transmission line, the National Electric Safety Code requires approximately 30' separation from the cemer of the transmission line to any structure. The applicant is proposing a 30' easement centered on the transmission line, which only guarantees a 15' separation between the electric line and a building. In discussions with the applicam, they have no issues with placing a condition on the two lots in question that would prohibit any structures within 30' of the centerline of the electric transmission line. Development Review The proposed realignmem of Hercules Lane shown on the Amending Detailed Plan has multiple advamages that improve the overall subdivision layom. The proposed realignmem creates an open space strip/30 foot City easemem (Block 6) that aligns parallel to an existing 30 foot City easemem for the purpose of expanding the existing transmission line. This additional 30 foot easemem improves the accessibility to the transmission lines for maimenance and operation purposes. In addition, the proposed realignment eliminates a block of residemial lots what had double street fromage per the approved Detailed Plan. (Attachmem 5) The approved Detailed Plan shows a comiguous 5.88 acres of "Public Open Space/Park". The proposed amending Detailed Plan detracts from the approved Detailed Plan because of the use of the open space/park for 11 of the additional residemial lots. The applicam has provided for a 20 foot section with a 2% cross slope to accommodate a 8 foot trail along the rear lot line of Lots 1 through 11, Block 7. The 8 foot trail would link the proposed North Pointe development to the Cooper Creek trail system as proposed by the Denton Park and Recreation Master Plan. Staff Findings 1. The approved Concept Plan allows 470 residential lots 2. The proposed realignmem of Hercules Lane provides for better accessibility to City electric transmission lines located along the North boundary of the subject site. 3. The proposed realignmem eliminates a block of residemial lots what had double street frontage per the approved Detailed Plan. 4. The proposed development still exceeds the minimum amoum of open space required and would be in compliance with the DeNon Park and Recreation Master Plan. 5. The National Electric Safety Code requires approximately 30' separation between the existing electric transmission lines along the northern property line and any future structure. Staff Recommendation Based on the above findings staff recommends approval of the requested amendment to the Detail Plan for Planned Development 120 with the following condition: No structures, fences or pools shall be located within thirty feet (30') of the centerline of the existing electric transmission line located along the northern property line of the subject site. ATTACHMENT 2 Location/Zoning Map NORTH Future Land Use Map ATTACHMENT 3 Public Notification NORTH Scale: None NOTIFICATION MAP Newspaper Notification Date: September 16, 2003 200' Legal Notices* sent via Certified Mail: · In Opposition: 0 · In Favor: 1 · Neutral: 0 Percent of land within 200' in opposition: 0% 7 Property Owner Responses Property Owner Name and Address In favor/neutral/ Comments /opposed* Favor John F. Skelton, Developer McKamy Evers Subdivision, 7001 Preston Road, Dallas We own the 59 acres on the east side of the subject property. We support the applicant's request provided the alignment of Hercules is on our north property line, as shown in the plat furnished us. It is our position that Hercules should be a neighborhood collector west of Locust. It will only service the subject property and not provide regional mobility which is the purpose of secondary thoroughfares. I plan on being at the meeting on Wednesday and will be available for any questions. *A copy of the original notice can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 4 Photos ATTACHMENT 5 APPROVED DETAILED PLAN (Ord. 2000-135) Approved lots with double street frontage Proposed "Public 0 Space/Park" area to locate 11 residential lots Hercules Lane approved alignment ATTACHMENT 6 PROPOSED AMENDING DETAILED PLAN ATTACHMENT 7 ATTACHMENT 8 City of Denton Parks and Recreation Department Memorandum Condenselt m 5 6 7 8 9 10 1t 12 13 t4 16 17 :18 19 2O 21 22 23 24 25 Page 9 on the Cede Review? If not, my fellow Commissioners, do 5,'all have any itmns you want to introduce into the record ou thc quarto'ly Cede Review? Okay. Thank you vcry ranch. i will conclude Item No. 6 and move to item No. 7, which would bc continue a public hearing for t'Dq20, we'll now open that -- reopen that. And presentation by Ms. V/cra, staff. MS. VIER.& Good evening, Commissiou, The applicant is requesting an amendment to the existing Detailed Plan for Planned Development 120 commonly known as North Pointe. The amendment before you consists 16 additional residential lots, the realignment of the future extension of Ilercules Lane and thc rexduclion of open space COMMISSIONER JOHNSON: A couple of the items land in Block 6, Lots 2 and 3 should be designated to be homeowner HCA owned and maintained. Has thc applicant agreed to that'.; MS. VIERA: That wou~d bc an issue that would be covered during the platting process. At that time the applicant will indicate those lots as an IlOA It's my understanding that thc applicant have agreed wi~h thru. COMMISSIONER JOHNSON: And also to dedicate the Block 27, Lot l, as parks -- to lhc City for thc parks, right? MS, VIERA: That's correct. 1 2 3 4 5 6 ? 8 9 10 11 in Block 7, The approved concept plan for this detailed plan allows up to 470 residential lots. The approved detailed plan only shows 454, The applicant with this amendment is asking lk)r an additional 16. That will bring thc tetal residential lois to 470, Thc realignment of' Hercules Lane has lwo benefits te tl~e proposal development. First, it eliminates a block of residential to~s tha~ will have double fl'outages according to fl~e approved plan. And also it provides mom accessibility to the city transmission lines along the north side of thc property. Denton Municipal Elecu'ic bas a concern 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER IOIINSON: And, also, to landscape and build thc drainage thc way that it's ladd out on thc drawing that we have; they've agreed to att of that? MS. VIERA: lt*s my understanding that thc applicant have an opportunity to get a copy of this letter and they agreed with that. COMMISSIONEP, JOI1NSON: Is that something that wc shoukl make a condition when we approve this? MS. VIEIO\: MOSt of the time those issues are taken care of during the platting process o1' thc development. After this amendment is defined by City Page 12 1 Council, the platting process will start. And at that 2 time all those requirements will be put in place. Thc 3 purpose of that memo to thc applicant was just at heads-up 4 of what was coming up, 5 COMMISSIONER JOHNSON: ()kay Thank you. 6 C()MMISSIONER MU'LRO¥: MS. Holt. 7 COMMISSIONER llOLT: YeS~ On thc 30 feet 8 from thc center line no structures or fences or pools to 9 be built, shouldn't that just bc an casement? Woukin't 10 that just clean that up so that it would not cvcr have any 11 of those? 12 MS. VIEILk: It is the prerogative of this t3 Commission to modi/y any condition that cluff have 14 suggested. 15 COMMISSIONER MUI.ROY: b'.XCUSC rile, Ms. Vi. era. 16 May I ask legal to step in here? 17 MR SNYDER: The answer to lhat qucstkm is 18 we can't legally require that they dcdicare that casemcm 1.9 We can put a setback requirement in thc regulation: but wc 20 can't make them give the property to us. Because this is 21 -- as i understand it, this is a transmissmn line and not 22 a distribution linc; is that correct? 23 MS. VIEIL~: That's correct. 24 MR, SNYDER: SO it doesn't lust serve this 25 development; it serves thc public at largo? Page 10 I about thc location of the transmission linc. On Lot 26, 2 Block 12 and Lot 1, Block 13, thc National Electric Safety 3 Code requires approximately 30 foot of separation from the 4 center of thc transmission line to any structure. With 5 the casement that the applicm~t is proposing, which is 30 6 foot wide, that clearance would be only 15 foot between 7 the transmission [inc and any proposed building. 8 Thc proposed amendment still exceeds thc 9 maxinmm mnount of open space required by the Parks and 10 Recreation Department and also provides a 20-foot section 11 to locate or to build an eight-foot trail, ql:e amount of 12 open space and the trail are in compliance with thc Parks 13 and Recrcation Master Plan. Staff' is recommending 14 approval of the requested amenchnent with tho conditions ! 5 that no structures, fences, or pool shah be located t6 within 30 foot of the center line of the existing electric t7 transmission line located at the northern property line of 18 the subject site. The staff is available to answer any 19 questions that you may have. 20 COMMISSIONER MULP, OY: Mr. Johnson. 21 COMMISSIONER JOIINSON: There's a letter in 22 thc backup material from thc superintendent of Parks 23 Planning and Development that has six items listed. Are 24 you familiar with that letter? 25 MS. VIERA: Yes. PLANNING & ZONING COMMISSION OCTOBER 8,2003 Page 9 - Page 12 CondenseltTM Page 13 1 COMMISSIONER MULROY: okay. 21~ank you, Mr. 2 Snydcr. Any further questions of Ms, Viera? Mr, Roy. 3 COMMISSIONER ROY: Pill still struggling with 4 tile aiigmnent of Hercules Lane. Could you put something 5 up therc that shows Hercules Lane and what the original 6 alignment is and thc proposed change. 7 MS. VIERA: On page 10 of your backup, you 8 have a copy of thc approved detailed plato There's a 9 clashed linc that says Hercules approved alignment. On 10 page 11, we have a copy of the proposed amendment and 1 detail plan which shows thc alignment all tile way at the 12 north property linc close to the property line. So pretty 13 much what they're proposing, have a straight shot fi'om 14 west to east instead of the curve they used to have ! 5 before. 16 COMMISSIONER ROY: where does it Col'ne ill on 17 tile cast? 18 MS+ VIERA; It will -- okay+ it will be -- ~19 cvcntua[ly connect Nicosia from the west all the way to 20 /he Locust to the east. 21 This is an aerial photo. Pretty much what. 22 it shows, this is thc straight shot+ This is the proposed 23 alignment from this point all thc way to thc property line ~4 to the cast. Before you used to curve somewhere around 25 here. Right now have been relocated to thc north, just Page 14 1 one straight shot. 2 This is the existing Hercules. This is 3 Locust to the north. This is the apartmcnl complex. 4 Somewhere around here is Ebers Park, Windsor, So 5 eventually this road will conncgt all the way to the 6 existing interseclion of Hercules and Locust. 7 COMM[SSIONERROY: okay. I understand that 8 boner now. 9 COMMISSIONER MULROY: okay. Thank yom 10 Ms. V/m'a. Any further questions of stuff? ()kay. is the 11 applicant here and would you like to present or answer any 12 questions? If you'll slate yom' name and address, please. 13 MS. MITCHEI.L: Good evening Chairman Muh'oy 14 and members of the Planning and Zoning Co~mnission. 15 Korea Mitchell, Mitchell Planning Group, 7823 Nine Mile 16 Bridge Road in Fort Worth. On behalf of the owners of 17 this property, I would like to thank you all 18 continuing om' request ii-om last week. 19 Unlbrtunalcly, prior to the meeting, staff' 20 had some additional requests for some additional 21 infonuation and at that time we could not get the 22 information to the staff in a timely manner to -- in ordcr 23 to stay on the Agenda. So we have since gotten the 24 information that slaff requested, presented il to them, 25 and lhcy are satisfied with the information t'haI we had Page 1 given them. And it did have to do with the power pole 2 locations. 3 As staff has prcsentxxt to yom in thu 4 report, xve are requesling two firings. Nmnber one. we're 5 r~uesting to get 16 additional lots which was approved on 6 tim concept plan m 1998, And then wc also arc requesting 7 to malign Ilercules for the purpose of ~rying to kc~p it 8 lined up. And I believe that it's sl~own very similar to 9 this on the Mobiliw Plan as well. 10 The open space ar~ and maybe this can 11 just a liltlc bit. This is what wag shows oB fl~e propcrb' 12 or xvhat is approvml on this pi~¢ of property. We've 13 shown thc area in N'mn to be thc open space. And this 14 what we arc proposing. And wc have worked it om in this 15 particular at~a with thc Parks DcparnncnL There's 95 16 l~; right here. Wc were able lo bc abtc to m~l thc 17 ~uimments of being able to get a trail in [hem. We've 18 work~ evm~hing oul with s laff to my knowledge on 19 eve~thing. 20 We did have thc n~t to speak with thc 21 a([~acent property owner, Mr. John Skchon, who's thc owner ,22 of thc McKmny Evers Estate. What hc had asked for -- hc i23 had a problem wifl~ us lining up dh'ectly -- Hercules 24 directly ~ I'm not showing it right here. l'm sorry -- 25 with his properb'. Page 1 I And so what you have in your packet is what 2 we refer to as a reverse curve which now has '[-icrculcs 3 right at this location coming up whom it is ~traddting 4 the property linc, which if you look at bis preliminary 5 plat, thal's approval on his piece of propcr~y jusl to thc 6 south closest to Locust, l'm going to mm i~ npsidc~down 7 so you can sm it just a little bit bettor hem. Right at 8 this k~cation right here, his preliminary plat dun was 9 approv~ wllcl~ yon get towards Locust Str~l is located in 10 the ,~amc area, iffs straddling the lot linc. 11 And so we had a lnC~fing with the a~[jaccnl 12 property owner. This is M~at he was satisfied with, Wc 13 presented it to slaff. Slaff smms to b¢ okay with it, 14 And with that information, I weald bc rook~ titan happy to 5 answer any questions that yon-all may have. 6 COMMISSIONER MUI,ROY; Fellow Commissloners, 7 any questions of the applicant? r havc no qtleslions and 8 we'll close the public hearing. Thank you. Ms. Mitchell. 19 And we'll entertain a motion or discusskm. Mr~ johnson. 2(} COMMISSIONER X)HNSON: [' [[ nlOV¢ approval 21 witl~ the condition as sm~cd by stulT 22 COMM[SSiONITR MIJIROY: Okay. 1' VC got :~ 23 motion by Mr, Johnson. Do we have a second? M~ Slt'angc. 24 COMMISSIONER STRANGE: sLcond. ,25 COMMISSIONER MULROY: Motion hy Mr. I. 'LANNING& ZONING COMMISSION OCTOBER 8,2003 Page 13 Conden gelt TM Page 17 I Johnson, second by Mi'. Strange for approval as rcconnnended 2 hy stuff. 3 COMM]~SSIONER POWELL: QUC.stiOiL 4 COMMISSIONER MULROY: Yes, sir. 5 Mr. Powell. (5 COMMISSIONER POWELL: Thank you, sir. I 7 forgot to push my button. The conditioa, where is that 8 and is tile applicant on board with it'? 9 COMMISSIONER MULROY: Mr. 3ohnson, would 1(1 you clarify the conditions? j. ~ COMMIS;SiONEI:t son~,qOl'<: The condition is lie 12 strnctm'cs, fences or pools shal[ be located within 30 3 feet of thc center line of the existing electric 14 transmission linc located along the northern property line 15 of the subject site. 16 COMMISSIONER POWELL: Thank you very much. 17 i should have remembered that. And where is the applicant 18 on ~hat? 19 MS. MITCHEI,L: We will be able to comply 20 with that. When we come in and revise our preliminary 21 plat, what we're going to make sm'c of is tha~ wu may have 22 to tweak, move some of the lot lines over just a little 23 bit. Again, fl~is is just a detail plat:. We'll get into 24 the pmliminm'y plat to make sm'c thru them will be no 25 problems on those two lots. So we don't have problems 1 3 4 5 6 7 8 9 0 1 12 13 14 15 16 17 ~18 19 20 21 22 23 24 25 Page 18 with that condition+ COMMISSIONER POWELI,: Tlmnk you. COMMISSIONER MI_JI,ROY: Any further questions'? if not, please, vote. Ms. Holt, your vote did not register. Thank you. Motion carries 7-0. And thank you, Ms. Mitchell+ COMMISSIONER MITCHELl.: Thank you+ 1 2 3 4 5 6 7 8 9 l0 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 t0 Il 12 13 14 15 16 17 lg 19 2O 2t 22 23 ~24 25 PLANNING & ZONING COMMISSION OCTOBER 8, 2003 Page t 9 Page 20 Page 17 - Page 20 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING AND APPROVING A DETAILED PLAN FOR AN APPROXIMATE 50 ACRE PORTION OF PLANNED DEVELOPMENT 120 (PD-120) ZONING DISTRICT AND LAND USE CLASSIFICATION TO INCREASE THE NUMBER OF RESIDENTIAL LOTS AND THE REALIGMENT OF HERCULES LANE; PROVIDING FOR A SAVING CLAUSE; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z03-0019) WHEREAS, on September 2, 1986, by Ordinance 86-173 the City Council approved a change in zoning for 412.1 acres of land to Planned Development 120 (PD-120) zoning district, as more particularly described therein; and WHEREAS, on October 6, 1998, by Ordinance 98-324 the City Council approved an amendment to the Concept Plan of PD-120, as more particularly described therein, and WHEREAS, on April 4, 2000, by Ordinance 2000-135 the City Council approved an detailed plan forPD-120, as more particularly descr/bed therein, and WHEREAS, Nicosia & 77 L.P., has applied for an amendment to the detailed plan for a portion of PD-120 containing approximately 50 acres of land as more particularly described in Exhibit "A" attached hereto and made a part hereof by reference (the "Property"); and WHEREAS, on October 8, 2003, the Planning and Zoning Commission concluded a public hearing as required by law, and recommend approval with conditions of the requested amendment to the detailed plan, said detailed plan being on file in the offices of the Planning Department of the City, a copy of which is attached hereto and made a part hereof by reference as Exhibit "B" (the "Detailed Plan"); and WHEREAS, the City Council finds that the approval of the Detailed Plan is consistent with the Comprehensive Plan; NOW, THEREFORE, THE COUNC1L 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 Detailed Plan for the Property in PD- 120 is hereby approved, subject to the following condition: No structures, fences or pools shall be located within thirty feet (30') of the centerline of the existing electric transmission Iine located along the northern property line of the subject site. SECTION 3. The provisions of this ordinance as they apply to the amendments herein Page 1 of 2 approved, shall govern and control over any conflicting provisions of Ordinance No. 2000-135, but all the provisions of Ordinance No. 2000-135 as they apply to the regulations 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 attach~ to Ordinance No. 2000-135 showing the amendment herein approved. SECTION 5. if any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 6. Anyperson violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 7. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY. BY: RNEY Page 2 of 2 Exhibit A Metes and Bounds Description 49.857 Acres Thomas Toby Survey, A - 1288 B. B. B. & C. R.R. survey, A - 186 City of Denton, Denton County Texas BEING a tract of land situated in the Thomas Toby Survey, Abstract No. 1288 and the B.B.B. & C.R.R. Survey, Abstract No. 186, in the City of Denton, Denton County, Texas, being a portion of a called 102.900 acre tract described by Special Wan'anty Deed with Vendor's Lien to Nicosia & 77 L. P., as recorded in Volume 5144, Page 1032, Deed Records Denton County Texas (DRDCT) and being more particularly described as follows (bearings referenced to the east right of way for Terlingua Street as shown by Texas Instruments Addition, as recorded in Cabinet G, Slide 48, Plat Records Denton County Texas (PRDCT)): BEGINNING at a point for tile intersection of the south line of that 75-foot wide Texas Municipal Power Agency Easement as described in Volume t 133, Page 859 DRDCT and the west line of that tract conveyed to Denton 40 Joint Venture as recorded in Volume 2565, Page 72, DRDCT, same being the northerly northeast comer for the aibresaid 102.900 acre tract; THENCE South 0l°41'57'' West along said west line, a distance of 56.31 feet to a point itl the south line of said Denton 40 Joint Venture Tract; THENCE South 89°11'11" East along said south line, a distance of 1405.40 feet to a found 5/8 inch iron rod found at a fence comer, said point being in tl~e west line of a remainder tract conveyed to Bob E. Tripp & Donald E. Tdpp, Trustees, as recorded in Volume 996, Page 376, DRDCT; THENCE South 01°05'52'' West along said west line, a distance of 1114.97 feet to a 1/2 inc}~ iron rod found at the northeast comer of Lot 2, Block A, Sandlin Addition according to the plat thereof recorded in Cabinet O, Slide 132, PRDCT; THENCE North 89*08'45" West along the north line of said Lot 2, a distm~ce of 1524.81 feet to a 1/2 inch iron rod found at the northwest comer of said Lot 2; THENCE North 00°48'19'' West, a distance of 82.62 feet to a point for thc beginning of a curve; THENCE along the arc of said curve to the left, having a central angle of 47°04'03'', a radius of 400.00 feet, an arc length of 328.61 feet and a chord of North 24°20'25" West, 319.45 feet to a point for comer; THENCE North 47'52'31" West, a distance of 239.27 feet to a point for the beginning of a curve; THENCE along tile arc of said curve to tile tSght, ]laving a central angle of 15'28'04", a radius of 100.00 feet, an arc length of 27.00 feet and a chord of North 40°08'29" West, 26.91 feet to a point tbr comer; THENCE North 32o24'27'' West, 513.18 feet to a point for comer; THENCE North 00°57'01" East, a distance of 481.82 feet to a point for comer on the south line of the aforesaid 75-foot wide Texas Municipal Power Agency Easement; THENCE southerly with said south line as follows: South 62'31 '57" East, a distance of 650.07 feet to a point fox' comer; South 89°25'05" East, a distance of ~60.32 feet to the POINT OF BEGfNN1NG and containing 49.857 acres of land. I Jl ti I AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET November 4, 2003 Legal Department Jerry E. Drake, Jr., Senior Assistant City Attorney/Litigation Chief SUBJECT: AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS IN LITIGATION STYLED SANDY REESE BENIGNO & HARROLD ANTHONY BENIGNO K CITY OF DENTON & BILLY RAY CRUTSINGER, CAUSE NO. 2002-60190-393, CURRENTLY PENDING IN THE 393m) DISTRICT COURT OF DENTON COUNTY, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. BACKGROUND: In 2002, Sandy and Harold Benigno filed suit against the City of Denton and Billy Ray Crutsinger for injuries Mrs. Benigno received in an automobile accident that occurred in 2001 involving a commercial solid waste truck being driven by Mr. Crutsinger. OPTIONS: Execute the Compromise Settlement Agreement and Release of All Claims or continue defending the City of Denton and Mr. Crutsinger in this suit. RECOMMENDATION: The Legal Department recommends that the City Council authorize the City Manager to execute the Settlement Agreement and Release of All Claims for reasons previously addressed in closed session. PRIOR ACTION/REVIEW (Council~ Boards~ Commissions): This matter was presented to the Council in executive session in August 2002 and August 2003. FISCAL INFORMATION: The settlement, as discussed in closed session, will be paid out of the Risk Retention Fund. S:\Our DocumentsLMiscellaneous\03~agenda information sheet-benigno.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS IN LITIGATION STYLED SANDY REESE BENIGNO & HARROLD ANTHONY BENIGNO V. CITY OF DENTON & BILLY RAY CRUTSINGER, CAUSE NO. 2002-60190-393, CURRENTLY PENDING IN THE 393RI) DISTRICT COURT OF DENTON COUNTY, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council hereby approves the Compromise Settlement Agreement and Release of All Claims in litigation styled Sandy Reese Benigno & HarroM Anthony Benigno v. City of Denton & Billy Ray Crutsinger, Cause Nol. 2002-60190-393, currently pending in the 393ra District Court of Denton County, Texas, a copy of which Settlement Agreement is attached hereto and incorporated by reference herein, and the City Manager or his designee is hereby authorized to execute said Settlement Agreement on behalf of the City. SECTION 2. The City Manager is hereby authorized to expend the funds in accordance with the attached Compromise Settlement Agreement and Release of All Claims. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERB~TTORNEY 10/27/2003 12:48 9406911790 ANDERSON LAW FIRM PAGE 82/10 NO. 2002-60190-393 SANDY REESE BENIGNO AND HARROLD ANTHONY BENIGNO, Vo THE CITY OF DENTON AND BILLY RAY CRUTSINGER IN THE DISTRICT COURT 393P'x> JUDICIAL DISTRICT OF DENTON COUNTY, TEXAS COMPROMISE SETTLEMlr, NT & RELEAS]~ OF ALL CLAIMS KNOW ALL MEN BY THESE PRESENTS: That it is agreed by mid betwem~ PLAINTIFFS, Sandy Reese Benigno and Harold Anthony Benigno and the RELEASED PARTIES identified as the City of Denton, Texas (Defendant) and its past, present, and future officers, elected officials, employees, agents, and attorneys (all in both their official and individual capacities), and their respective insurers, and those in pnvity with any of them, and Billy Ray Cmtsinger (Defendant) and his family members, employees, agents, insurers, and attorneys, and those in privity with any of them, as follows: The RELEASED PARTIES will pay to PLAINTIFFS the total aggregate sum of thirty five thousand and no/100 dollars ($35,000.00), the receipt and sufficiency of which is hereby acknowledged. For and in consideration of said payment, PLAINTIFFS, Sandy Reese Benigno and Harold Anthony Benigno hereby fully release, discharge, and acquit the RELEASED pARTIES, from, and agree that the sum so pa/d shall be in full and final satisfaction and compromise of'. all actions, causes of action, claims (including subrogation claims, claims for contribution or indemnity as to money paid in connection with this settlement, and demands, on account of o1~ in any way growing out of any and all negligence, intentional misconduct, violation of Constitutional or statutory rights, 18/27/2883 12:48 9486911798 ANDERSON LAW FIRM PAGE 83/18 conspiracies, breach of any duty of good faith and fair dealing, death, personal injuries, damage to reputation, pain and suffering, grief, bereavement, loss of consortium, loss of companionship, damage to familial relationship, mental anguish, psychic injury, loss of earning capacity, loss of household services, loss of wages, loss of profits, loss of money; damage to property, taking of property, attorney's fees, pre- and post-judgment interest, and all other causes of action and dmges whether known or unknown and whether heretofore asserted or not, owned or possessed by any of said PLAINTIFFS against any of said RELEASED PARTIES growing out of or in any way connected with: an automobile collision that occurred on April 1, 2002 in Denton, Texas, all as more fully described in the pleadings on file herein, to which reference is made for more complete description; any events or lit/gation connected with or grow/ng out of said incident or this sett!ernem; or any event which occurred prior to the date of this settlement. PLAINTIFFS each do hereby agree to indemnify and save harmless the said RELEASED PARTIES of and from all further claims, demands, costs, or expenses arising out of any injuries and damages summed by Sandy Recse Benigno and Harold Anthony Benigno or by any of their respective natural or adoptive family members or relatives, as a result of: said automobile collision that occurred on April i, 2002 in Denton, Iexas; any of the events connected with, or growing out of, said incident or this settlement; or any event which occurred prio~ to the date of this settlement. PLAINTIFFS each understand and agree that the mount paid under this agreement is in full satisfaction of all injuries and damages arising on account of the above described events and tl~at they will receive no further sums of money therefrom. Further, each PI.AINriFF expressly warrants that there are no outstanding unpaid hospital liens, medical insurance subrogation claims, or property damage subrogation claims and it is expressly understood and agreed that PLAINTIFFS have already paid or will pay out of the Page 2 10/27/2003 12:48 9406911790 ANDERSON LAW FIRM PAGE 04/10 aforementioned sum of thirty five thousand and no/100 dollars ($35,000.00) all property damages and medical, doctor' and hospital charges received in the past or to be incurred in the future and that PLAII'CFIFFS will each defe,~d, illdelllltify~ alld hold harmless thc said RELEASED PARTIES, of and from the payment of such subrogation claims and hospital liens (especially with reference to any liens under the Texas Hospital Lien Law). We, Sandy Reese Benigno and Harold Anthony Benigno, PLAINTIFFS, further represent and warrant that Hank Anderson is the only counsel employed by us to represent us with regard to the aforementioned claim and with regard to the advisability of entering into this Agreement and we have been fully advised by said counsel regarding our rights and the execl~tion of this Agreement. However, if there are any other attorneys who have been employed by us in connection with claims arising from our injuries or who may make any claim to thc settlement monies paid by the RELEASED PARTIES, then we shall be responsible for these fees or claims and we shall INDEMNIFY, DEFEND, AND HOLD THE RELEASED PARdi'lES HARMLESS for any such attorneys' fees or claims made 'to the settlement monies by the other attorneys. PLAINTIFFS each expressly warrant that their spouses have not suffered any loss of consortium as a result of the events in question or PLA1NTI.FFS' alleged injuries and damagzs. PLAINTIFFS each also expressly warrant that no member of their family has suffered any psychic injury, mental anguish and/or damage to the familial relationship as a result of the events in question or as a result of PLAINTIFFS' alleged damages and injuries. PLAINTIFFS each ag;tee to deferral, hold harmless and indenmify the RELEASED PARTIES from the payment, and for the defense, including, expenses, and reasonable attorney's fees, of any and all such claims for loss of consortium, psychic injury, mental anguish and/or damage to the familial relationship. PLAINTIFFS each hereby represent and warrant to the RELEASED PARTIES and to the Page 3 18/27/2883 12:48 9486911798 ANDERSON LAW FIRH PAGE 85/10 Court that no promises, representations or agreements not set out herein have been made to them; that this Compromise Settlement & Release of All Claims is executed without reliance upon any statement or representation of any person or partics released or their representativea, concerning the nature and extent of the injuries, damages and/or legal liability therefor, that acceptance of the consideration set forth herein is a full accord and satisfaction of a disputed claim, which is incapable of being exactly deiermined, and for which liability is expressly denied, and that this Compromise Settlement & Release of All Claims is made of their own free will and accord after consulting with and acting upon the advice of their attorney. INDEMNITY WE RELEASE AND GIVE UP ANY CLAIM THAT WE HAVE AGAINST THE RELEASED PARTIES. WE UNDERSTAND AND AGREE THAT THIS IS A FULL AND FINAL GENERAL RELEASE, SETTLEMENT, AND INDEMNITY AGREEMENT FOR ANY MAI~rER OR THING DESCRIBED OR REFERRED TO HEREIN. WE AGREE THAT THIS GENEI~J.~ RELEASE, SETTLEMENT, AND INDEMNITY AGREEMENT MAY BE PLEADED AS AN ABSOLUTE AND FINAL BAR TO ANY AND ALL SUIT OR SUITS PENDING OR WHICH MAY I-IEREAFI~ER BE PENDING OR I~ROSECUTED AGAINST THE RELEASED pARTIES BY US OR ANYONE CLAIMING BY, THROUGH, OR UNDER US, AND WE AGREE TO BRING NO FURTHER AC]lION OF ANY KIND AGAINST THE RELEASED PARTIES FOR DAMAGES ARISING FROM THE INCIDENT DESCRIBED ABOVE AND TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE RELEASED PARTIES FROM ANY ACTION BROUGHT BY, THROUGH, OR UNDER US, SEEKING TO RECOVER DAMAGES DIRECTLY OR DERIVED FROM THOSE DAMAGES WE ARE CLAIMING AS A RESULT OF THIS INCIDENT. Page 4 18/27/2883 12:48 9486911798 ANDERSON LAW FIRM PAGE 86/18 THIS OBLIGATION TO INDEMNIFY, DEFEND, AND HOLD HARMLESS IS BINDING UPON US REGARDLESS OF THE CAUSE OF INJURIES OR DAMAGES COMPLAINED OF OR OF FAULT. IT IS SPECIFICALLY AGREED THAT WE SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS THE RELEASED PARTIES FOR THEIR OWN NEGLIGENCE, IF ANY, AS WELL AS THE NEGLIGENCE, IF ANY, OF ANY OTHER PARTIES MENTIONED OR REFERRED TO IN THIS DOCUMENT, RELATING TO OUR INJURIES WHICH RESULTED FROM AN AUTOMOBILE COLLISION THAT OCCURRED ON APRIL 1, 2002 IN DENTON, TEXAS, FROM ANY CAUSE OF ACTION BROUGHT BY, THROUGH OR UNDER US. WE AGREE THAT THIS AGREEMENT OF INDEMNITY COMPLIES WITH 'I'EXAS INDEMNITY LAW AS STATED IN ETHYL CORP. E DANIEL CONSTR. CO., 725 S.W.2d 705 (rex. 1987) AND THE CONSPICUOUSNESS REQUIREMENTS OF DRESSER INDUS., INC. V. PAGE PETROLEUM, INC., 853 S.W.2d 505 (rex. 1993). WE FURTHER AGREE THAT WE WILL NEVER CONTEND THAT THIS AGREEMENT DOES NOT SATISY~r TEXAS LAW CONCERNING INDEMNITY AGREEMENTS. WE FURTHER AGREE THAT THIS GENERAL RELEASE, SETTLEMENT, AND INDEMNITY AGREEMENT SHALL BE CONSTRUED UNDER THE LAWS OF THE STATE OF TEXAS. AND FOR THE SAME CONSIDERATION, WE SOLEMNLY STATE AND AFFIRM: THAT THiS GENERAL RELEASE, SETTLEMENT, AND INDEMNITY AGREEMENT IS NOT BEING MADE BECAUSE OF ANY PERSUASIVE STATEMENT OR REPRESENTATION BY ANYONE WHOMSOEVER OR FOR ANY REASON OTHER THAN THE PAYMENT AND CONSIDERATION STATED HEREIN, AND THAT THIS GENERAL RELEASE, SETTLEMENT, AND INDEMNITY AGREEMENT IS MADE BY US WITH FULL KNOWLEDGE THAT OUR INJURIES MAY NOT BE FULLY UNDERSTOOD BY US AT THIS TIME, AND 'rHA'r NO RECOVERY ON. ACCOUNT OF THE MATTERS DESCRIBED HEREIN MAY HEREAFTER BE HAD FROM ANYONE WHOMSOEVER. WE AGREE THAT THE MONEY PAiD FOR THIS Page 5 18/27/2863 12:48 940691i790 ANDERSON LAN FIRM PAGE 07/10 GENERAL RELEASE, SETTLEMENT, AND INDEMNITY AGREEMENT IS NO ADMISSION OF LIABILITY AND WE WILL NEVER CLAIM THAT IT IS. FOR THE SAME CONSIDERATION, it is agreed that the above-styled suit will be dismissed with prejudice to refiling the same, and that costs of court will be taxed to the party incurring thc same. Although originally clral%d by attorneys for the RELEASED PARTIES, this Compromise Settlement & Release of All Claims is a contract which is the product of negotiations between the panics and attorneys for the parties and which shall, in the event of any dispute over its meaning or application, be interpreted fa/fly and reasonably, and neither more slxongly for or against either party. This document contmns the entire ageemem of the parties hereto. TttZ PROVISIONS OF THIS COMPROMISE SETTLEMENT & KELEASE OF ALL CLAIMS ARE CONTRACTUAL AND NOT MERE RECITALS. WITNESS OUR HANDS this _~/~ay of O~,~" .2003. HAaOL9 CITY OF DENTON, TEXAS MICHAEL A. CONDUFF CITY MANAGER Page 6 18/27/2883 12:48 9406911790 ANDERSON LAW FIRM PAGE APPROVED: FI'ar~k ~.nd~rson Attorney for PLAINTIF_F.S___ ...... ~~omey for T~s ins~ent was ac~owledged befoIe me on the~ay of~~, 2003, by S~dy . Reese Be~o. ~ot~P~blic2S~t~ 08/18 My Commission Expires: THE STATE OF TEXAS COUNTY OF NOTARY ~BUC-STATE OF lID(AS ] This instnancnt was acknowledged before me on th~:;~'.~-.d~y~'°Z/of 3d~. 200, by Harold Anthony Benigno. N6tary P~blic-State Cfi'TeXas -' - My Commission Expires: MY COMMISSION ~PIRE8 ~ :.:." Page 7 18/27/2883 12:48 9406911790 ANDERSON LAW FIRM PAGE 89/18 TIlE S'I'ATE OF TEXAS ) ) COUNTY OF DENTON ) This instrument was acknowledged before me on the __ A. Conduff, City Manager for the City of Denton, Texas. day of ..... ,2003, by Michael My Commission Expires: Notary Public-State of Texas Page 8 18/27/2883 12:4B 94B6911TgB ANDERSON LAW FIRM PAGE 1B/lB I, H~mk Anderson represent and warrant that I am the attorney for Sandy Reese Benigno and Harold Anthony Benigno, PLAINTIFFS, under valid and legal powers of attorney, that the foregoing are my clients' true and correct signatures. I further represent and warrant that they executed this Compromise Settlement and Release of All Claims without deception or coercion, and tha! I have fully discussed with them their fights under the law, their physical and mental condition, and the legal effect of this Compromise Settlement and Release of All Claims. I further represent that upon payment of the consideration set forth above that any claim for attorneys' fees or expenses which I or anyone who has represented Sandy Reese Benigno and Harold Anthony Benigno, PLAINTIFFS has or h~l or will have in connection with this matter has been fully satisfied and ~at no claim against the RELEASED PARTIES for attorneys' fees and/or expenses will be made. Attorney for Plaintiffs Page 9 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: November 4, 2003 Economic Development Mike Conduff, City Manager SUBJECT Consider adoption of an ordinance establishing an Economic Developmem Program under Chapter 380 of the Local Governmem Code for making grams of public money to promote economic development and to stimulate business activity in the City of Denton; approving an Economic Development Incentive Agreement with TTHR Limited Partnership regarding the purchase of tangible personal property using a Texas Direct Payment Permit to generate local use tax revenue to the City, which tangible personal property will be located at an expanded hospital facility in the City of Demon generally located at 207 North Bonnie Brae; authorizing the expenditure of funds therefore; and providing an effective date. BACKGROUND Staff will brief City Council regarding the proposed Section 380 Agreemem in the November 4, 2003 Executive Session. The proposed agreemem will be provided to City Council in the Attorney/Client Status report. Respectfully submitted: Linda Ratliff, Director Economic Development Department AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: November 4, 2003 Parks and Recreation Department Howard Martin, 349-8232 ~ SUBJECT Consider an ordinance of the City of Denton, Texas granting an exaction variance to the Park Dedication and Developmem Fees requiremems for neighborhood parks for Robson Ranch, PD-173, being a residemial developmem consisting of approximately 2,725 acres of land generally located between 1-35W and Florence Road and between Robson Ranch Road and Lively Road in the City of Denton, Texas; approving a recreational program agreement; and providing an effective date. BACKGROUND Robson Ranch was established as a planned developmem (PD-173) pursuam to Ordinance No. 99-265. Robson Ranch is designed and has developed as a retiremem community comaining substamial private recreational facilities including a golf course and a recreation center. At the time PD-173 was established the Planning Commission and City Council recognized that certain variances to the normal neighborhood park dedication and developmem fee requiremems would be appropriate due to the lessened impact that this developmem would have to the City's neighborhood park system. City staff was directed to meet with representatives of Robson Ranch and bring back a variance request at a later date. In the last few months, staff has met with Robson Ranch representatives, which has resulted in this variance request. The City's neighborhood park dedication and developmem fee regulations comained in Article III of Chapter 22 of the DeNon Code of Ordinances (the "Park Ordinance") are designed to require private residential development to pay its fair share of the costs associated with the burdens imposed and the benefits received by such developmem on the City's neighborhood park system. The Robson Ranch development will have some impact on the neighborhood park system but not to the same extent as a typical residential development because: 1. Robson Ranch contains substantial private recreational facilities not found in a typical residemial developmem. These include a golf course and a recreational cemer. All residents may utilize the golf course at a reduced rate and may use all other recreational facilities at no extra charge. 2. Residents are of retirement age. Therefore, the development will not generate the same number of children residems as a typical residemial developmem. Park Land Dedication Variance: Robson Ranch is requesting that the amount of land dedication be reduced based on the population characteristics of the development. Instead of 2.8 persons per single- family unit, a more realistic number 1.8 persons per single-family unit is proposed. This is consistem with other recent retirement housing statistics. By reducing the number of persons per single-family unit, the land dedication is reduced from 49.5 acres to 33.75 acres for 7,500 residemial units. In addition, Robson is requesting a 50% credit against the Park Land Development fees, based on the amouN of private recreation land and facilities provided for their resideNs. The Ordinance provides where substaNial private parks and recreational areas are provided in a proposed resideNial subdivision and such area is to be privately owned and maiNained by the future resideNs of the subdivision, partial credit may be given to the Developer/Owner, not to exceed 50% of the total acreage requiremeNs for land dedication if the City finds that it is in the public iNerest to do so and that all the standards are met. With the curreN recreational facilities developed at the Robson Ranch developmeN, it is reasonable to consider graNing a 50% credit toward Park Dedication requiremeNs when land is dedicated to the City. This will reduce the poteNial land dedication requiremeN from 33.75 acres to 16.875 acres. CurreNly Robson has paid fees on each final platted phase in lieu of land dedication. These funds are being held in the Park Land Dedication Trust Fund until land is dedicated. At that time the 50% credit can be applied to the acreage required. Robson Ranch has agreed to dedicate the 16.875 acres within six months of approval of the variance. Park Development Fees: Robson Ranch is requesting a similar credit against Park Development Fees. Robson Ranch has constructed multiple recreation facilities such as golf courses, tennis courts, recreation fitness ceNer, and swimming pools. Applying the curreN requiremeN, Robson Ranch would pay $2,057,700 if all 7,500 resideNial units were constructed. Staff is recommending a Park DevelopmeN fee of $1,057,700, which is just over one-half of the required amouN. The $1,000,000 in credit would be realized through the provision of services to City of DeNon resideNs. The required Park DevelopmeN Fee under the Park Ordinance for Robson Ranch is $291 per single- family resideNial unit and $187 per multi-family resideNial unit. Staff recommendation would lower the per unit price to $145.50 per single family unit and $117.54 per multi-family unit. Staff will track the number of permits issued, and based on the actual number of units constructed in a 12 month period, the Parks and Recreation Department will implement a recreation program for Denton residents that will be equal in value to that credit. The amount should average approximately $41,000 per year, based on the total build-out over a 20 year period. Recreation Program Agreement: The Parks and Recreation DepartmeN will develop programs at Robson's facilities and charge a discouNed fee for those programs to DeNon resideNs. The fee is charged to recover the cost of providing the program. Robson Ranch will then receive a credit against their Park DevelopmeN fees equal to the value of providing that service, which is the published public rate on Robson's annual rate sheet excluding golf cart fees that will be collected by Robson Ranch. The 20 year agreemeN will have one five year option to renew. The City of DeNon will have access to Robson Ranch golf courses and recreational facilities to provide fee-based programs. The initial 2003-04 program will include weekly 9-hole golf scrambles, three 18-hole tournameNs, three special even days, golf vouchers and discouNed rounds of golf. OPTIONS The City Council may choose to approve the variance and recreation program agreemeN as preseNed, request changes from staff or deny the request from Robson Ranch. RECOMMENDATION Parks and Recreation staff recommends that a variance to the Park Dedication and Development Fee Ordinance be granted providing: The formula for the calculation of the amount of park land dedication to the City shall be based on rate of 1.8 people per single family or multi-family unit, and a 50% credit in dedication requirements. The cash park development fee to be charged at building permit shall be $145.50 per single family unit and $117.54 per multi-family unit. A credit will be established in favor of the City at building permit based on $145.50 per single family unit and $69.46 per multi-family unit for use under the Recreational Program. Discounted recreational programs will be offered to the citizens of Denton by the Parks and Recreation Department under the terms of the Recreation Program Agreement. ESTIMATED PROJECT SCHEDULE The variance request will be official as of the effective date. The Recreation Program Agreement is a 20 year contract effective November 5, 2003, through November 4, 2023, with one five year option to renew. PRIOR ACTION/REVIEW The Planning and Zoning Commission unanimously recommended approval of the variance at their September 24, 2003, meeting. The Parks, Recreation and Beautification Board recommended approval of the variance and approval in concept of the Recreation Program Agreement at their October 4, 2003, meeting. FISCAL INFORMATION The annual recreation program, including golf will be budgeted in the Recreation Fund. Anticipating this agreement, staff included funding for a golf program in the 2003-04 Recreation Fund budget. $34,192.50 Total value for recreational services to be credited to City of Denton in 2003-04. EXHIBITS 1. Ordinance 2. Recreation Program Agreement 3. Planning & Zoning Commission Minutes, September 24, 2003 4. Parks, Recreation and Beautification Board Minutes, October 6, 2003 5. Robson Ranch Letter of Request Respectfully submitted: Janet Simpson, Interim Director Parks and Recreation Department ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS GRANTING AN EXACTION VARIANCE TO THE PARK DEDICATION AND DEVELOPMENT FEES REQUIREMENTS FOR NEIGHBORHOOD PARKS FOR ROBSON RANCH, PD-173, BEING A RESIDENTIAL DEVELOPMENT CONSISTING OF APPROXIMATELY 2,725 ACRES OF LAND GENERALLY LOCATED BETWEEN 1-35W AND FLORENCE ROAD AND BETWEEN ROBSON RANCH ROAD AND LIVELY ROAD IN THE CITY OF DENTON, TEXAS; APPROVING A RECREATIONAL PROGRAM AGREEMENT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the developer of Robson Ranch, PD-173, being a residential development consisting of approximately 2,725 acres of land generally located between 1-35W and Florence Road and between Robson Ranch Road and Lively Road in the City of Denton, Texas ("Robson Ranch") has requested a variance to the park dedication and park development fee regulations contained in Article III of Chapter 22 of the Denton Code of Ordinances (the "Park Ordinance"); and WHEREAS, on September 24, 2003 the Planning and Zoning Commission recommended approval of the variance request; and WHEREAS, the City Council finds that the park dedication and park fee exactions contained in the Park Ordinance are not roughly proportional to the benefits received and the burdens imposed by Robson Ranch on the City's neighborhood park system due to the fact that Robson Ranch contains substantial private recreational facilities and the development contains retirement age residents and fewer children per residential unit; and WHEREAS, the City Council finds that granting of the variance is equitable, results in a roughly proportional subdivision exaction, and is in the public interest; NOW, THEREFORE; THE COUNCIL OF THE CITY OF DENTON, TEXAS HERBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The following variance to the Park Ordinance is hereby granted: mo The formula for the calculation of the amount of park dedication to the City shall be based on a rate of 1.8 people per single family or multi-family unit. bo The cash park development fee to be charged at building permit shall be $145.50 per single family unit and $117.54 per multi-family unit. Co In addition to the cash park development fee a credit will be established in favor of the City at building permit based on $145.50 per single family unit and $69.46 per multi-family unit for use under a Recreational Program, to provide the City S:\Our Documents\Ordinances\03~Robson Park Variance Ordinance.doc with recreational services in kind pursuant to an agreement between the City and Robson Ranch in substantially the same form as the agreement attached hereto and made a part hereof by reference (the "Recreational Program Agreement"). SECTION3. The City Manager, or his designee, is authorized to execute the Recreational Program Agreement on behalf of the City, exercise the rights and duties of the City under the agreement and to make modifications to the agreement related to the type of recreational activities to be provided in kind and the associated programs so long as such modifications are in keeping with the spirit and intent of the agreement to provide recreational activities for the citizens of Denton. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of _,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 EXHIBIT B MEMORANDUM OF AGREEMENT RESTRICTIVE COVENANTS STATE OF TEXAS } COUNTY OF DENTON } KNOW ALL MEN BY THESE PRESENTS THIS Memorandum of Agreemem and Restrictive Covenams ("Restrictive Covenams") are made and emered imo as of the 5th day of November, 2003, by and between the City of DeNon, Texas (the "City") and Robson DeNon Developmem, LP, an Arizona limited partnership (the "Property Owner"). WHEREAS, the Property Owner is the developer OF the Robson Ranch Developmem, being PD-173, a residential development located in the City of Denton, Denton County, Texas consisting of approximately 2,725 acres of land ("Robson Ranch"); and WHEREAS, As a part of Robson Ranch the Property owner has constructed and maintains certain private recreational facilities on certain real property within Robson Ranch which is more particularly described as Amended Final Plat of Robson Ranch Clubhouse A, Lot 1, Block A, an addition to the City of DeNon, Texas, according to the plat thereof recorded in cabinet U, pages 435 thru 437 of the Plat Records of Denton County, Texas, the Final Plat of Robson Ranch Golf Course A, Phase 1, an addition to the City of DeNon, Texas according to the plat thereof recorded in cabinet T, pages 231 thru 239 of the Plat Records of Denton County, Texas, Replat of Lot 2R, Block A of Robson Ranch Golf Course A, Phase 1, according to the plat thereof recorded in cabinet U, pages 444 and 445 of the Plat Records of Denton County, Texas, and Final Plat of Robson Ranch Golf Course B, Phase 1, an addition to the City of Denton, Texas according to the plat thereof recorded in cabinet U, pages 338 thru 345 of the Plat Records of DeNon County, Texas (the "Property") and which is depicted in Exhibit "A" attached hereto and made a part hereof by reference; and WHEREAS, On November 5, 2003 the City and Property Owner emered imo that certain Recreation Program Agreemem providing among other things, for the City's use of the Property for City recreation programs (the "Agreemem"); and WHEREAS, a true and correct original of the Agreemem is on file in the Office of the City Secretary, DeNon City Hall, 215 E. McKinney, DeNon, Texas 76201, which Agreemem is incorporated herein by reference; and WHEREAS, the City and Property Owner have emered imo the Restrictive Covenams to put all third parties and subsequem owners of the Property on notice of the restrictive covenams comained in the Agreemem which are binding on the Property and all owners thereof. NOW THEREFORE, in consideration of the covenams comained in the Agreemem, the City and Property Owner agree as follows: 1. Section 7 of the AgreemeN provides as follows: "The Property Owner hereby declares that all of the Property shall be held, sold and conveyed subject to the covenants contained within this agreement which are restrictive covenants touching and running with the Property and shall be binding on all parties having any right, title or interest in the Property or any part thereof, either now or in the future, and their successors and assigns, and shall inure to the benefit of the Property Owner, the City, and their successors and assigns. The City and Property Owner have simultaneously entered into a Memorandum of Agreement and Restrictive Covenants (the "Memorandum of Agreement") in substantially the same form as the Memorandum of Agreement attached hereto and made a part hereof by reference as Exhibit "B" which shall be recorded in the Real Property Records of Denton County, Texas." 2. Any person who sells or conveys any portion of the Property shall prior to such sale or conveyance give separate written notice of the Agreement and these Restrictive Covenants to the prospective purchaser or grantee, along with a separate notice to the City including a copy of such written notice. Notice to the City shall be addressed as follows: City Manager City Hall City of DeNon 215 E. McKinney Denton, Texas 76201 3. These Restrictive Covenants are to run with the land described herein as the Property and shall be binding on all parties and all persons claiming under them, and any future owners of the Property for a period of twenty-five years from the date hereof. 4 These Restrictive Covenants and the Agreement may be enforced by the Property Owner and the City, and their successors, heirs or assigns by any proceeding at law or in equity. Failure by the Property Owner or the City to enforce any covenaN shall in no even be deemed a waiver of the right to do so thereafter. 5. Invalidation of any of the covenants or provisions contained in this instrument or the Agreement by judgment or court order shall not in any manner affect any of the other covenaNs or provisions herein set forth and all such remaining provisions shall remain in full force and effect. 6 No subsequent change in the law shall in anyway affect the validity or enforceability of these Restrictive Covenants and the Agreement. 7. If there are any existing liens against the Property, the Property Owner shall obtain from such lien holders written subordination agreemeNs subordinating such liens to these Page 2 L:\CC 2003\November 4, 2003\Robson Final\Exhibit B -Restrictive Covenants. DOC Restrictive Covenants and the Agreement and the rights of the City hereunder. Such subordination agreements shall be in recordable form and shall be submitted to the City within 30 days of the Effective Date of the Agreement. The parties hereto have executed these Restrictive Covenants to be effective as of the date first above written (the "Effective Date"). CITY OF DENTON, TEXAS BY: ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: Michael A. Conduff City Manager APPROVED AS TO FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: ROBSON DENTON DEVELOPMENT, LP, an Arizona limited partnership By: DENTON PROPERTY MANAGEMENT COMPANY, an Arizona corporation its general partner By: Jim Poulos Vice President 9532 East Riggs Road Sun Lakes, Arizona 85248 Page 3 L:\CC 2003\November 4, 2003\Robson Final\Exhibit B -Restrictive Covenants. DOC STATE OF TEXAS COUNTY OF DENTON This instrument municipal corporation. is acknowledged before me, on this day of ,2003 by Michael A. Conduff, City Manager, of the City of Demon, a Notary Public in and for State of Texas STATE OF § COUNTY OF § This instrumem was acknowledged before me on this day of ,2003 by Jim Poulos, Vice Presidem of DeNon Property Managemem Company, an Arizona corporation, general partner of Robson Development, LP, an Arizona Limited Partnership, as the act and deed of said limited partnership. Notary Public in and for State of Page 4 L:\CC 2003\November 4, 2003\Robson Final\Exhibit B -Restrictive Covenants. DOC KECKEATION PROGRAM AGREEMENT THIS AGKEEMENT is made by and betwe~'n Robson Denton Development, L,P, an Arizona limited partnership (the "Property Owner") and the City of Denton, Texas, a home rule .municipality, located in Denton County, Texas, (the "City"), as of thc cffecfive date, upon the terms and conditions set forth herein. WHEREAS, the Property Owner is thc owns' and developer of the Robson Ranch Develop, menL being PD-173, a residential development located in the City of Denton, Denton County, Texas consisting of approximately 2,725 acres of land ("Robson Ranch"); and WHEREAS, the Property Owner is the owner of private recreational land and faciBties consisting of a golf course and other recreational facilities on land within Robson Ranch which is more particularly described as Amended Final Plat of Robson Ranch Clubhouse A, Lot 1, Block A, an addition to the City of Denton, Texas, accorcting to the plat ther, of recorded in cabinet U, pages 435 thru ~,37 of the Plat Records of Denton County, Texas, thc Final Plat of Robson Ranch Golf Course A, Phase 1, an addition to the City of Denton, Texas according to the plat thereof recorded in cabinet T, pages 231 tb.ru 239 ofth¢ Plat R~ords of D~ton County. Texas, Replal of Lot 2IL Block A of Robson Ranch Golf Course A, Phase I, according to the plat thereof recorded m cabinet U, pages a44 and 445 of the Plat Records of Denton County, T~xas, and Final Plat of Robson Ranch Golf Com'sc B, Phase l, an addition to the City of Denton, Texas according to the plat thereof recorded in cabinet U, pages 33g thru 345 of the Plat Records of Denton County, Texas (the "Property") and which is depicted in Exhibit "A" attached hereto and made a part hereof by reference; and WHEK~AS, the City's neighborhood park dedication ad development fee regulations, being Article 12I, Chapter 22 of the Code of Ch'dinances of the City of Denton (the "Park Ordinance'') require, among other things, the dedication of park land or fees in lieu thereof and payment of park development fees proportional to the number and type of dwelling units proposed for residential subdivisions l0 provide neighborhood park needs; and WHEREAS, the Property Owner pua'suant to Ordinance No. (the "Variance Ordinance'') has received a partial varianv, e of the Park Ordinance from the City due Io the fact that Robson Kanch contains subslantial private recreational facilities and the developmen! conlains retirement age re~sidents and fewer children ~ residential unit; and WHEREAS, one of the conditions of the partial variance is that a credit will be established in favor of the City at building permit based on i;145.50 pm' single family unit and $69.a6 per multi-family unit for use under a Recreational Program, to provide Ibc City with recreational services in kind; and WHEREAS, the City and the Property Owner have entered into thi,~ agreonent to s~t forth the terms and conditions under which the R~creational Program will be operated; and NOW TH2EKEFORE, in consideration of $10 and other good and valuable consideration, including thc mutual covenants conlained herein and the b~efils received by the Properly Owner resulting from the partial variance, the parties agree as follows: EXHIBIT 2 1. The term of this agreem~t w~ll commence on November 5, 2003 and expire on November 4, 2023. If however the City h~s not redeemed all r~rvice credits provided for m this agreement by such date, the City shall have the option to extend this agreemenl for an additional five year period. 2. For each building pvunit issued on Robson Ranch the City will be given, in addition to the cash payments required by the Variance Ordinance, a credit in the ~,rnount of $145.50 For each single family unit and $69.46 for each multi-family unit. These credits will be u~ed by the City in Furtherance of the Recreation Program as provided herein. The lo~al amount of credits owed by the Property Owner will be based on the actual number of building pe~-oaits issued from October I through September 30 of each y~ar. The amount of annual credits should average ~pproximately $41,000 per year (the "Annual Average") based on the total build-om over a 20 year period (5,619 units at build-out x $145.50 per unit -- $g17,$64.$0 + 20 year~ = $~0,87g.23 average annual Program c~xlits). Any variance in achieving thi,~ figure, regardless of whether it is to the City's or Propel~ Owner's benefit will be rolled over from year to year. Credits may be banked to either party's credit for multiple years. Should the building permit activity at Robson Ranch not generate enough cre~it~ to mee~ the Annual Average in any given year, the City may elect to receive advanced credits toward future building permit activity for subsequen! years, if in the opinion of the City it is necessary in order to maintain the continuity of the Recreation Program. 3. In calculating the value of the services in kind, and the applicable credit, the value will be determined based on the Property Owner's then published public ra~ on its annual rate sheet The Property Owner shall notify the City in writing of the public rates on its annual rate sheet within 30 days of it being published. If the Property Owner fails to publish the annual rate sheet or discontinues recreational services to the public then the value of the services in kind will be determined based on the rates charged members for guests using the recreational facilities or if guests are not charged then the parties shall mutually agree on the value of the recreational services. 4. The types of activities for the Recreation Program shall be established from time to time between the City and the Property Owner, with the initial Recreation Program consisting of at the lea.q ~e following activities: The City will have access to the Robson Ranch golf courses and other recreational facilities to offer annual recreational prograras, Each year the City's Director of the Parks and Recreation Depar~ent (the 'Director") and a representative o£ the Property Owner (the "Owner's Represenlative") will acme on an annual program offering. The City must be allowed to offer programs that will g~rJerate r~"venue at levels established in Section 2 above, up to the Annual Average. Thee programs may include, but are no! limited to: weekly gol£ scrambles, tournaments, special event days, golf vouchers, and discounts to Denton residents. The CiW may provide servire~ to all age groups, with a primary focus on adults. The Director may establish pricing for all services offered by the City. The annual program will be finalized by ;luly 1'~ and will be effective on October 1~ of each year. However, lhe first year's annual program will be as follow~: For 2003-04 the Annual Program is: PAGE 2 Weekly 9-hole golf scrambles - held every Tuesday afternoon and commencing no earlier than 5:00pm for 21 consecutive weeks effective the first week after the commencement of day light savings time each year. Credit will include the cost of the grin f~ only. Golf cart fees will be collated by Robson Ranch. Day of a~tivity may be reschedulcd if put in writing and mutually agreeable by both parties. (2.) Tournament Play - three dates will be provided e, acah year for 18-hole tournament play, to be held on Monday-Thttmday. One date must be provided for eamh of the following months: Mamh, ,lu,ne, and Sc~ptgmb~. Crcdi! will include thc cost of thc green f~ only. Golf cart fees will be collected by Robson Ranch. (3.) Special Event Dates - three dates will be provided ~ch year for Golf Special Event Programs Type of event could include, bm not be limited to a junior golf event, corporate event, or community ~vcnt. Dates and tim~ will be established on an as needed basis by mutual ~en! of City and Property Owner. Note: Day of any scheduled activity may be reschetiuled if put in writing and mutually agreed upon by both parties. An altemaQv¢ date must be provided to allow for programs to be reschedu]ed in the ev~t of cancellation due to inclement woath~r within 7 days. Robson Ranch golf staff will do pairings for all weekly golf scrambles, tournaraent~, or other golf special events offered by City of D~nton, If Robson Ranch roches its capacity the Property Owner has the fight to cto,~ to the general public, However, it must still honor the terms of this agreement and allow the City to continue to administer thc Recreation Program, or if unable to do so, the Property Owner must then pay the cash equivalent of each credit not used no later than 60 days after receiving written notice from the City. Thereaftgr park d~velopmgnt fees owed under the Park Ordinance shall be collected at building permit at the Park Ordinance rate as if the Variance Ordinance wa~ not granted. The Property Own~ will issue vouohers for rounds of golf to the City for no less than 10% and no more than 20% of the annual credit owed based on the Annual Average. Vouchers will count towards cteclit upon issuance. All vouch~r~ will be distributed by the City. The City will receive vouchers valued at 10% of the annual credit owed by M~'ch 1st of each y~ar in ord~ to begin voucher distribution. The City may request up to an additional 10% during the mmaindea' o£the annual cff~fiv¢ dates in order to achieve the atmual credit redemption goal. Vouchers may be redeemed for rounds of golf and do not include cart fees. If the City determines thai thc offering of programs for thc Recreation Program will not reach the average annual credit amount, the City has the option of PAGE 3 distributing $10 discount coupons for rounds of golf £or Denton residems not to exceed 50% of the a~ual credit amount based on the Annual Average. Coupons will only apply to published public rates on its annual rate sheet. Even though the initial Recreation Program includes only golf activities subsequent Recreation Programs may include such r~mational activities as tennis, swimming and use of the gymnasium. 5. Prior to the adoption of the Variance Ordinance and this agreement the Property Owner had paid at times to the City the full park development fee amounts per building p~'mit required by the Park Ordinance and at times only one half of the requil'ed fee. Within 30 days after the Effective Date of th/s agreement the City wiJl deliver to the Property owner a matement showing thc mount of re.fired due the Property Owner and the total beginning credit for the City under this agreement as of the Effective Date. The City will then refund to the Property Owner one half of those fees that were collected at the full rate {the "Refund Amount'). The City's beginning credit will be equal to the refund amount plus the one half of the requ/red rate not previously collected by the City for building permits where the City only collected one half of the required rate (the "Beginning Credit"). 6. The City will maintain records of single farrtily mad multi-family buiMing permits and the corre~onding collection of the reduced cash park development fees and the amount of Recreation Program credits per building permit. Monthly r~co~s will also be kept by the City showing the value of thc Recreation Program credits redeemed by the City. The City will provide the Property Owner with an annual accounting of credits and aery/cea used, no later than 90 days after the end of the City's fiscal year. 7. Under the Park Ordinance the Property Owner has been making payments to the City in lieu of park lmafl dedication and will be allowed to cominue to make such payments (the "Park Dedication Deposit"). Likewise,' under the Variance Ordinance the City will continue to collect a cash pon/on of the park development fees per single family and multi-family units (the "Park Development Fees"). The Variance Ordinance establishes that the amount of park dedication shall be based on a rate of 1.8 people per single family and multi-family unit. Based on the development's population characteristics, the amount of private recreational facilities provided, the Park Ordinance and the Variance Ordinance, the amount of park land to be dedicated to the City is 16.875 acres. The Property Own~ shall dedicate the 16.875 acres of park land to the Ci~ free and clear of all liens and encumbrances no later than May 4, 2004 at a location acceptable to the City. The dedication of land must adhere to the guidelines set forth in the Park Dedica6on Ordinance (95-039). The ordinance states that the land must be "reasonably adaptable for use for park and recreation purposes, taking into consideration such factors as size, shape, topography, geolo~, access and location." "Prior to the dedication of land, the Developer/Owner shall make full disclosure of the presence of any hazardous substances and/or underground storage tanks 0J.S.T?s) of which the Developer/Owner has knowledge. The City, at its discretion, may proceed to conduct such initial environmental tests and surveys on the land, as it may deem appropriate, and the Developer/Owner sh~ll grant to the City and its agents and employees such reasonable access to the land as is nee~sary to conduct such surveys and tests. If the results of such surveys and tests indicate a reasonable possibility of ~nvironmental contamination or the presence of U.S.T.s, the City may require fixrther survey and tests to be performed at the Developer/Owner's expense as the City may deem necessary prior to its acceptance of the PAGE 4 &dicatio~. or in the alternative, the Developer/Owner may be required to identify alternative property or pay the fees in lieu of such park land dedication, The park site shall be firee of trash and debris and it' the dedicated park land's natural condition is disturbed during construction of subdivision improvements then Developer/Owner shall be re~onsible for returning the dedicated land to its natural condition prior te or at the time of final plat filing ~d the public improvements to be constructed per the applicable subdivision plat will not be accepted by the City until such time that the above conditions have been met." .The land to be dedicated will be located on property currently owned by Robso~ Ranch. that is locat~ north of Lively Road. Any additional dedication of land over and above 16.875 acre, will not be given credit against park dedication or park development fee requirements. If the pa~k land dediealion is made by that date the City will refund the Park Dedication Deposit to the Property Owner and use the Park Development Fees to develop the park site. Notwithstanding anything contained in the Park Ordinance to the contrary, the City will have at least 10 years from the date of dedication of the park to expend those Park Development Fees received as of the date of the dedication. The City will continue to collect the cash portions of the Park Development Fees mad be given credits under this agreement for services in kind under the Yarianee OMinance ~s new building permits are issued. If the p~rk land dedication is not made by that date the provisions of Section 22-~0 (c) requiring expenditure of park fees within I0 years, will be considered waved by the Property Owner. In such event the City will be entitled to use all park dedication fees and park development fas paid for single family and multi-family units in Robson Ranch for acquisition and/er development of park and .recreation facilities within a I mile radius of Robson Ranch. 8. The Property Owner hereby declnres that all of the Property shall be held, .~old and conveyed snbjeet to the covenants contained within this agreement which ar~ .restrictive covenants touching and ~nnin~ with the Property and shall be binding on nil parties having any fight, title or interest in the Property or any part thereof, either now or in the furore, nnd their successors and assigns, nnd shall inure {o the benefit of the Property Owner, the City, and their ~neee.~sors and nssiRn$. The City and Property Owner have simultnneously entered into a Memoraudnm of A~reement nn~l Restrictive Covenants (lhe "Memorandum of Agreement") in substantially the same form as the Memorandum of Agreement attached hereto nnd made a part hereof by reference ~s Exhibit "B' which shah be recorded in the Real ProperS. Records of Denton County, Texas. 9. Any notice required or permitted to be delivered h¢eeunder shall be deemed received when sent by United States mail, postage prepaid, certified mail, return receipt r~qu~sted, addres- sed to the City or the Property Owner, as the case may be, at the address set forth beneath the signature of the party, 10. This Agreement shall be construed under and in accordance with the laws of thg State of Texas, and all obligations of the pmies created hereunder are fully penfommble in Denton County, Texas. Exclusive venue for any lawsuit enforcing or inte~ any of the fights and obligations under this agreement shall be a court of competent jurisdiotion in Denton Coxmty, Texas. 11. This Agreement shall be binding upon and mt:re to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns where pei':,-,itted by this Agreement. PAGE 5 12. In case any one or mor~ of the Im'Ovisions contained in this Agr~cmem shall ~ any reaso~ be held to be invalid, illegal, or tmenfor~eable in any respect, said invalidity, illegality, or tmenfor~eability shall not afl, c! any other provision hereof; and this Agrcc~ncnt shall bc construed as if thc i~valid, illegal, or tmenforccabk provision had never been contain~ her,'in. 13. This Agreement constitute~ the sole and only agreement of the parties and supe~ede~ any prior under~mdings or written or oral agreements b~ween the parties respecting the w~thin subject maticr. 14. Time is of the ~sscncc in this Agreement. 15. Wo~s of any gcnd~' used in this Agrecmcm shall be held and construed to include any other g~ndcr, and wo~s in thc singular number shall be held to include ~ plural, and vice versa, u~_less thc context requires otherwise. 16. The recitals in the preamble of this agr~ncnt arc substantive and ar~ incorporated into lb© body of this agreement by reference. EFFECTIVE as of thc daf o£ Da~c"). ,2003 (thc "Effective THE CITY OF DENTON, TEXAS By: ATTEST: JENNlY"ER WALTERS, CITY SBCP~TARY Michael A, Conduff, City M~mager 215 B. McKinncy D~ton, Texas 76201 BY: APPROVED AS TO LEGAL FORM: HERBERT L.~.. ~, CITY ATTORNEY BY: PAGE 6 ROBSON DENTON DEVELOPMENT. LP, an Arizona limited partnership By: DENTON PROPERTY MANAGEMENT COMPANY. aa Arizona corporation its general partner By: /~/"~-- Jim ?ogles 9532 East Riggs Road Sun Lakes, Arizona 85248 PAGE 7 STATE O1: TEXAS COUNTY OF DENTON This inslrument is aeknowk'clged before me, on this day of . ,2003 by Michael A. Conduff, City Manager, of the City of De~to~, a municipal corporation. Notary Public in and for State of Texas STATE oF k~_~ § § COUN oF This instrument was acknowledged befor~ me on this ~day of ,2003 by Jim Poalos, Vici: President of Denton Property Management Company, an Arizona corporation, general partner of Robson Doveloprnent, LP, an Arizona Limited Partnemhip, as the act and d~d of said iimit~l partnership. Notary Public in and for State of~ PAGE 8 EXHIBIT B MEMORANDUM OF AGREEMENT RESTRICTIVE COVENANTS STATE OF TEXAS } COUNTY OF DENTON } KNOW ALL MEN BY THESE PRESENTS THIS Memorandum of Agreement and Restrictive Covenants ('*Restrictive Covenants") &re made and entered into as of the bth day of November, 2003, by anti between the City of Denton, Texa~ (the "City") and Robson Denton Development, LP, an Arizona limited partnership (the "Property Owner"). WHEREAS, the Properly Owner is the developer OF the Robson Ranch Development, being ?D-173, a residential development located/n the City of Dentor~, Denton County, Texas consisting of aFproximately 2,725 acres of land ("Robson Ranch"); and WHEREAS, As a part of Robson Ranch the Property owner has conslrucXed and maintains certain private recreational facilities on certain mai property within Robson Ranch which is more particularly described as Amended Final Plat of Robson Ranch Clubhouse A, Lot 1, Block A, an addition to the City of Demon, Texas, a~ordin~ to the plat thereof recorded in cabinet U, pages a35 thru 437 of the Plat Records of Denton Count, Texas, thc Final Plat of Robson Ranch Golf Course A, Phase 1, an addilion to the City of Dvnton, Texas according to the pla thereof recordad in cabinet T, pag~ 231 thru 239 of the Pla Records of Denton County, Texas, Rcplat of Lot 2R, Block A of Robson Ranch Golf Course A, Phase 1, according to pla thereof recorded in cabinet U, pages ~?.4 and ~145 of the Plat Records of Denton County, T~as, and Final Plat of Robson Ranch Golf Course B, Phase 1, an addition to the City of D=nton, Texas according to the pla thereof re~orded in cabinet U, pages 338 thru 3,15 of thc Pla R~cords of I)gnton Collrlty, T~xas (the "Prop~") and which is depicted in Exhibit attached hereto and made a part hereof by reference; and WHEREAS, On November 5, 2003 the City and Prop~ Owner entered into that certain Recreation Program Agreement providing among other things, for the City's use of the Properly for City recreation programs (the "Agreement"); and WI-I~ILEAS, a true and correct original of the Agreement is on file in the Office of the City Secretary, Denton City Hall, 215 E. McKinney, Denton. Texas 76201, which Agr, ement is incorporated herein by refcrvnce; md WHEREAS, the City and Property Owner have entered into the Restrictive Covenants to put all third parties and subsequent owners of the Property on notice of the restrictive covenants contained in the Agreement which are binding on the Property and all owners thereof. NOW THEREFORE, in consideration of the covenants contained in the Agrevment, the Cigt and Property Owner agree as follows: 1. Section 7 of th~ Agreement provides as follows: "The Property Owner hereby declares that all of the Property shah be held, sold and conveyed subject to the covenants contained within this agreement which are restrictive covenants touching and running with the Property and shall be binding on nH parties having any right, title or interest in the Property or any part thereof, either now or in the future, and their successors and assigns, and shall inure to the benefit of the Property Owner, the City, and their successors and assigns. The City and Property Owner have simultaneously entered into a Memorandum of Agreement and Restrictive Covenants (the "Memorandum of Agreement") in snbstnntiaHy the same form as the Memornndum of Agreement attached hereto and made a part hereof by reference as Exhibit "B' which shall be recorded in the Real ProperU Records of Denton County, Texas." 2. Any p~rson who sells or conveys any portion of the Prepay shall prior to such sale or conveyance give sopaxate written notice of the Agreement and these R~strictive Cov~t,~ts to thc prosp~tive purchaser or grantee, along with a separate notice to the City ir~cluding a copy of such written notic=. Notice to the City shall be addressed as follows: City Manager City H~I1 City of Denton 215 E. McKinncy Denton, Texas 76201 3. These Restrictive Covenants are to run with the la.nd described h~-cin as the Property and shall be binding on all parties and all persons claiming under thc'm, and any futu.r~ owners of the Property for a period of twenty-five y~ars from the date hereof. These Restrictive Covenants and the A~at may b~ enforced by the Pro~rly Owner and the City, and their successors, heirs or assigns by any proceeding al law or in equity. Failure by the Property Owner or the City to ,mi'omc any covenant shall in no event be deemed a waiver of thc right to do so thereafter. 5. Invalidagon of any of thc covenants or provisions contained in this instrument or thc Agreement by judgment or court order shall not in any manner affect any of the oth~r covenants or provisions h~-=in set forth and all such rvrnaining provisions shal} remain in full force and effect. 6 No subsequ~t changa in thre law shall in anyway affec! the validity or enforceability of these Rcstri~ve Cov~aats and thc Agreement. 7. If there arc any existing liens against the Prope~, the Property Owner shall obtain from such lien holders written subordination agrecm~s subordinating such liens to these Page 2 Restrictive Covenants and the ~ent and thc rights of the City hereunder. Such subordination agremaents shall be in recordabl¢ form and shall bc submitted to the City within 30 days oft. he Effective Date of the Agreemmt The parties hereto have executed these Restrictive Covenants to be effc~ive ~ cf the date first above written (the "Effective Date"). CITY OF DENTON, TEXAS BY: ATTEST: JENNIFER WALTERS, crrY SECRETARY BY: Michael A. Couduff City Manager APPROVED AS TO FORM: ROBSON DENTON DEVELOPMENT, LP, an Arizona limited partnership By: DENTON PROPERTY MANAGEMENT COMPANY, m Arizona corporation its g~neral parmer By: Vice Pr~ident 9532 Easl Riggs Road Sun Lak~, Arizona 852a8 Page 3 STATE OF TEXAS COUNTY OF DENTON This instrum~t maui¢ipal corporation. is acknowl~lg~d before me, on this day of ,2003 by Michael A. Conduff, City Manage, of thc City of D~nton, a Notary Public in and for State of Texas STATE OF ~ § COUNTY OF ~ strum=~ was acknowledged befor~ mc on this ,~t~d~y of ~~_~m ,2003 by Jim Poulos, Vice Pr~ident of Denton Property Management ~omp~y, an Arizona co~pomtio~, general partner of Robson Development, LP, m Arizona Limited Part, nership, as thc act and dc~l of sa~d limit,d partnership. Page CondcnscitTM Page 1 1 PROCEEDINGS 2 COMMISSIONER MULROY: c, ood evening. 3 Welcome to the September 24th, regular session of tile City 4 of Denton Planning and Zoning Commission. We will begin 5 with the pledge of allegiance. 6 (Thereupon, the Pledges of Allegiance were 7 recited.) 8 Our next item is the approval of tile 9 minutes from the September 10th, 2003 meeting. 10 COMMISSIONER ROY: I move approval. 11 COMMISSIONER HOLT: secortd. 12 COMMISSIONER MULROY: I have a motion and a 13 second. Please, vote. Motion carries 7-0. 14 Before we get to the Consent Agenda, I'd 15 just like to announce to the audieuce that I~n No. 10 16 will be continued for two weeks to October 8th, and we'll :17 go through that fore,al motion. But those who camo down 18 here tonight, I didn't want you to wait around 19 unnecessarily. And that is the public hearing concerning · 20 a detailed mnendment to Pr) ~2o, fifty acre propcr~ by 21 Hercules Lane. 22 Okay. Our next item is Itmn No. 3, the 123 24 25 1 2 6 7 8 9 10 11 12 i3 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 1t 12 13 14 15 16 17 18 19 2O 21 22 Page 3 on the number of dwelling units in a development, and the standard for neighborhood park developments city wide, and that's 2.5 acres of land per 1,000 population. When you apply the standard to a single family unit, at 2.8 persons per unit, that's 44 acres. For multi-family units, the standard is 1.8 persons and that is 5.4 acres. The proposed wquirement is to reduce the 2.8 persons to 1.8, which would match the multi-family units. This is consistent with other retirement housing. Because of the characteristics of the population of development, it's an all adult unit. You would expect tlmt the number of persons per unit would be lower than file national average. That's based on the census data where we drew the 2.8 persons from. So based on that, the city and staff did recommend that wc lower the standard from 2.8 for single family to the 1.8. In doing that, the total of 7,500 units, and that's single family and multi-family lowered their dedication rcquiremcm to 33.75 acres. Robson also requested a 50 percent reduction of that amount based on the fact that they are providing a substantial amount of private recreational Consent Agenda. The Planning and Zoning Conunission has reviewed this item and has had the opportunity to raise questions regarding this vote. Do I have a motion? Page 2 COMMISSIONER JOHNSON; Move approval. COMMISSIONER STRANGE: Second. COMMISSIONER MULROY: I've got a motion by Mr. Johnson, a second by Mr. Strange for approval. Please, vote. Item carries 7-0. Next iran, Item No. 4, will be concerning an exaction variance for Robson Development. Would staff tike to present or Saner Simpson? MS. SIMPSON: GOOd evoning. My name is Janet Simpson. And I'm tho interim director of tile Parks and Recreation Department. COMMISSIONER MULROY: Jal~et, would you give us your address~ please? MS. StMPSON: sure. 2214 Archer Trail, Denton, Texas. Robson Ranch has requested a varianco of tho parkland development and dedication fees. These fees wero established back in 1998 and provide for the acquisition and development of neighborhood parks throughout the City as residential developlnent occurs. I think I'll go through -- I have a couple of graphics that I think will explain this fa[dy well. If we look at the Robson Ranch Development and apply the ordinance to it as it is written, the ordinance would require the 49.5 acres of land. The parkland dedication fees are established and they're based 23 24 25 1 2 3 4 5 6 7 8 10 i1 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 land and facilities to thcir residents. We felt like this was within tile spirit of the ordinance because the neighborhood parklm~d is nsed for that purpose, to provide Page 4 services for individuals within that development. So staff did concur and agrees with Robson's request to lower their parkland dedication requirement from 49.5 acres to 16.875. The second part of the Ordinance is park development fees. This fee is collected at the time that the building permit is issued for each lot. The ordinance requires for single lhmily units a flat rate of $291.00 per unit. And for multi-l'amily rates, a flat rate of $187.00 per unit. Il' you apply that standard to Robson for their total development, not what's built out right now, but the total development, it would have been $2,057,700.00. Based on the stone reasoning as we went through with the park dedication requirement, Robson has requested a 50 percent reduction in their park development fees because, again, of the substantial amount of recreational facilities that they are providing for their residents. What we, as staff, are recmmnending is allowing a one million dollar credit still requiring a proposed requirement of $1,057,700.00, but reducing their credit overall by one million dollars. However, in exchange for that credil, Robson would provide to thc citizens of Denton services to the public at Robson in PLANNING & ZONING COMMISSION SEPTEMBER 24, 2003 Page 1 - Page 4 CondenseltTM Page 5 I their recreational facilities equal to that amount over :2 the life of that development. And if you look at a 3 20-year build-out, that's about $50,000.00 per year of 4 services to our citizens. 5 We're in the process of working on a 6 recreational progrm~ service agreement with Robson to do 7 just that and we will be taking that to the City Council 8 in October. 9 The reason that staff feels like this is an 10 acceptable variance to the dedication and development 11 requirements is really based on three things. First et~ 12 all, just the -- we were wilting to consider it because of 13 the overall size of this development, 7,500 dwelling 14 units, we felt like we needed to look at their request. 15 Second of all, just the extent of the 16 private facilities that they are providing. They've 17 already built one golf course, recreational building, 18 indoor swimming, fitness facilities and so forth that are 19 providing for that adult cotmnunity. And just the 20 characteristics, the population characteristics of the 21 development being an all adult. 22 We didn't feel like it was going to have -- 23 it would have the same requirements as a traditional 24 neighborhood park and traditional residential development. 2~5 COMMISSIONER MULROY: Any questions? Page 6 1 2 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 · 24 25 Page 7 Robson and we're still working on that with them. We're looking at a couple of different scenarios, but we haven*t finalized that. But we do want to ensure that the City does receive the full one million dolfars in value in services. COMMISSIONER IIOLT: SO, basically, we're trading use of their golf course for our citizens in the City of Denton? MS. SIMPSON: Yes, COMMISSIONI!R I'[O[,T: At a reduced rate? MS. SIMI'SON: YeS. COMMISSIONER HOLT: okay, Thank you. COMMISSIONER MuLRoY: Mr. Powell. COMMISSIONER POWELL: A couple of questions. What will they have out there, park, open space-wise other than a golf course? MS. SIMPSON; in addition to the golf courses, I know that they're providing swi~m~aing facilities, indoor basketball and gyms. And to my knowledge, that's the extent of it, especially the golf courses are ouldoor and around their -- the restaurant, there is open space and tennis courts as well. But we will be having -- they are planning to dedicate some ncigt~borhood parkland, up to the 16.87 acres, which will bc open space available. Page 8 I Mr. Roy. 2 COMMISSIONER ROY: ! understand the 3 reasoning for your reconunendation you're making. But is 4 there any precedent that we have in the City where we've 5 done this before where we made this same concession? Or 6 maybe there's no other similar situation, but I'm just 7 looking for a precedent. 8 Ms. SIMPSON: The ordinance does allow the 9 Parks and Recreation Department to make determinations on 10 dedication requirements, and provide up to 50 percent 11 credit for the land dedication. And we have dooe that. 12 A lot of the developments, residential developments that 13 come in arc now providing amenity centers, providing stone 14 playgrounds, swimming pools, open space. And whell th~ 15 provide that, we do allow up to 50 percent reduction of 16 their requireanents. t7 This will be the first time that we have 18 recommended any variance to the development fees. 19 COMMISSIONER ROY: Thank you. 20 COMMISSIONER MLrLROY: MS. Holt. 21 COMMISSIONER HOLT: Yes. After the 20 22 years, the one million dollar credit what happens then? 23 Do the fees go up on a golf course or -- 24 Ms. SIMPSON: That -- we are -- that will 25 be a part of the service agrc~nent that we have with 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 COMMISSIONI:,.'I( POWELL: And you spoke of services and I'm not going to try to tie it down to how many or anything like that, but what type of services are you speaking MS. SIMPSON: The types of things that we are talking to them about are providing opportunities for golf scrambles, tournaments, special events, vouchers, and just flat coupon discounts to the citizens of Denton for the use of their facilities. COMM£SSIONER POWELL: Thank you very much. · COMMISSIONER MULROY: Mr, Roy, did you have anything further? COMMISSIONER ROY: well, just to follow-up on that. I know the golf course is currently opened to the public, but the implication is that they were going to open up some of thc other facilities, such as the swi~mning pool and thc tennis courts and these things to the public; was that the idea'? MS. SIMPSON: Yes. COMMISSIONER ROY: And that would be part of some written agreement between the City and Robson -- MS. SIMPSON: Yes. COMMISSIONER ROY: -- that that would exist? MS. SIMPSON: Yes. COMMISSIONER ROY: Thank you. PLANNING & ZONING COMMISSION SEPTEMBER 24, 2003 Page 5 - Page 8 1 2 of Ms. Simpson? Okay. If not, I'll entertain a motion. 3 Mr. Johnson. 4 COMMISSIONER JOHNSON: [ move approval of 5 tiffs with the conditions outlined by the shaft in the 6 backup material. 7 COMMISSIONER HOLT: second. 8 COMMISSIONER MULROY: MOtion by Mr. 9 Johnson -- 10 COMMISSIONER POWELL: second. 11 COMMISSIONER MULROY: MS, Holt seconded it. 12 COMMISSIONER POWELL: oh, I'nl sorry, I 13 didn't hear. I thought you laughed. 14 COMMISSIONER MULROY: okay. Any further 15 discussion? Please, vote. Motion carries 7-0. We will 16 go to the next item, Item No. 5, which will have three 17 subparts. I has -- it's concerning a .4 acre site north I8 Condens¢ItTM Page 9 Page 11 COMMISSIONER MULROY: Any further questions 1 is requesting approval of this preliminary plat and staff 19 2O 21 22 23 24 25 of McKinney Street, south of Uland and staff will present, please. MR. VOKOtm: oecd evening, Mr. Chair, lady and gentlemen of the Commission, Bud Vokoun, engineering. You have before you a request from Curt Fowler, representing thc Habitat for Hmnanity, the current developers and owners of this property, who has applied for a physical hardship variance, V0341016 of Section 2 is reco~mnending approval based on the Co~mnission's 3 decision tonight. 4 COMMISSIONER MULROY: okay. would you care 5 to speak -- to address itera C? 6 MR. MORRISON: Sure. The applicant is also 7 requesting approval of the final plat and staff is 8 recolmnending based on thc Colmnission's approval tonight 9 for the variance. l0 COMMISSIONIng MULROY; colmnissioners, any 11 questions? Mr. Roy. 12 COMMISSIONER nov: I just have to ask this 13 one. It looks like thc layout, they're going to save 14 those beautiful big IiX:cs ol1 there; is that correct? 15 MR. MOtmmON: That's their talent, I 16 believe so. Yes, sir. 17 COMMISSIONER ROY: Thank you. Page 10 1 35.20.2(H-1) concerning easements and right-of-ways 2 relative to street dedication requirements for Uland 3 Street. The approximately .5 acre parcel is located on 4 the easterly side of Railroad, the Railroad being located 5 right here between Kent and Uland. 6 Property is located in a downtown 7 residential one zoning district. There are currently no 8 structures on the site. Three residences are proposed. 9 Three residences with one lot this way and two lots off of 10 Kent. 11 The applicant is proposing to dedicate full 12 right-of-way on Kent, full right-of-way on Railroad and 13 wishes the variance of 20 feet rather than 25 five feet of 14 right-of-way dedication on Uland. They're also dedicating 15 comer clips at both comers and will be installing 16 sidewalk ail the way around. Additional detailed 17 information is provided in your Agenda information sheet. 18 With that, that concludes staff's 19 presentation. And the applicant Mr. Fowler is here for 20 any questions you might have. 21 COMMISSIONER MULROY: Okay. Cormuissioners 22 any questions? Okay. Thank you. 23 Let's move to Item B, the consideration of 24 a preliminary plat. 25 MR. MORRISON: Good evening. The applicant 18 19 20 2I 22 23 24 25 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER MULROY: okay. Thank you, Mr. Roy. Any further questions? And we'd like to have time separate motions. Ma-, Watkins. COMMISSIONER WATKINGS: 'thank you, Mr. Chairman. I woultl like to move approval of V03-0016. COMMISSIONER HOLT: second. COMMISSIONI.R MULROY: Motion by Mr. Watkins. Second by Ms. Holt. Any discussion? PLANNING & ZONING COMMISSION SEPTEMBER 24, 2003 Page t2 Please, vote. Motion carries 7-0. Okay. item B, Mr. Watkins. COMMISSIONER WATKINS: Thank you, Mr. Chair. I would move approval of PP03-0018. COMMISSIONER MULROY: MS. Holt. COMMISSIONER HOLT: second. COMMISSIONER MULROY: Any discussion? Please, vote, Motion carries 7-0. Item C. Ms. Holt. COMMISSIONER HOLT: I move to approve FP03-0025. COMMISSIONER ROY: second. COMM[SSION}!R MULROY: Second by Mr. Roy, Please, vote. ltem carries 7-0. Thank you very much staff and Conmfissioncrs. Page 9 - Page 12 Draft Draft Parks, Recreation and Beautification Board Meeting City Hall Conference Room October 6, 2003 Members presem: Brandon Barnes, Jo Kuhn, Geri Aschenbrenner, Reggie Heard, Ross Richardson, and Teresa Andress. Staff presem: Janet Simpson, Bob Tickner, Emerson Vorel, Janie McLeod, and Cathy Avery. Chairman Brandon Barnes called the meeting to order at 6:00 p.m. A motion to approve the minutes of the August 25, 2003, meeting was made by Dale Yeatts and seconded by Geri Aschenbrenner. The motion was unanimously approved. A motion to approve the September 22, 2003, meeting was made by Jo Kuhn and seconded by Dale Yeatts. The motion was approved unanimously. ACTION ITEMS Consider a request from Robson Ranch for a variance to the park land dedication and development fee ordinance. Janet Simpson reviewed the Park Land Dedication ordinance and how the ordinance works to provide funding for neighborhood park land acquisition and development. Janet reviewed the Robson Ranch request to lower the park land dedication fees based on the lower number of persons residing in each residemial unit, and the substantial amount of recreation facilities provided by the developer. She also reviewed Robson's request to reduce the park land developmem fee, again based on the substantial amount of recreation facilities provided by the developer. In exchange, Robson would be required to allow the Parks and Recreation Department to provide recreational services to City of DeNon residems at Robson Ranch facilities based on the utilization of credits the departmem receives from reducing the park land developmem fees. Staff was still negotiating some aspects of the agreement related to the recreation programs to be provided, so a final documem was not available for the Board to review. Janet explained in concept that the Parks and Recreation Department was proposing to develop programs at Robson's facilities for a discoumed fee, including golf scrambles and golf tournamems. Additional credits would be issued through discoumed rounds of golf and golf vouchers. Jo Kuhn made a motion to recommend approval of the Robson Ranch request for a variance to the Park Land Dedication and Developmem fee providing that 1) The formula for the calculation of the amoum of park land dedication to the city shall be based on rate of 1.8 people per single family or multi-family unit, and a 50% credit in dedication requiremems. 2) The cash park developmem fee to be charged at building permit shall be $145.50 per single family unit and $117.54 per multi-family unit. 3) A credit will be established in favor of the City at building permit based on $145.50 per single family unit and $69.46 per multi- family unit for use under the Recreational Program. 4) Recommended approval, in concept, that discoumed recreational programs will be offered to the citizens of DeNon by the Parks and Recreation Department under the terms of the Recreation Program Agreement. Teresa Andress seconded the motion and it passed unanimously. ROBSON RANCH DENTON, LLC 9532 EAST.RIGGS ROAD SUN LAKES, ARIZONA 85248 September 9, 2003 Mr. Robert K. Tickner Superintendent of Pinks Planning and Development 321 E. McKinney Denton. Texas 76201 RE: Parks Agrecmer~t Dear Mr. Mm~tini 'This is our request-for'a variance from the City of Denton for our in'Pending Parks Agreement. The City of Demon neighborhood park development fee regulations contained in Section 22-39 of tl'ie Denton Code of Ordinances. (the "Park Development Fee Ordinance") are designed to require prix'are residential development to pay its fair share of the costs associated with the burdens imposed and the benefits received by such. development on the City's neighborhood park syslem. The Robson Ranch development will have some impact on the neighborhood park system but not to the same extent as a typical residential development because: 1. Robson Ranch contains substantial private !ecreationai' facilities not tbund tn a typical residential development. These include an 18-hole golf course w/th more planned and a recreational center. Ail residents are members of these recreational facilities. 2. Residents are of retirement age. Therefore, the development xvill not generate the same number of children residents as a typical residential development. Please feel free to contact me if you have any questions at 480-895-4251. Sincerely, Jim Poulos Vice President, Operations JP: th AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: November 4, 2003 Fiscal Operations Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider approval of a resolution nominating members to the Appraisal Review Board of the Denton Central Appraisal District; and declaring an effective date. BACKGROUND The Appraisal Review Board hears all appeals that are presemed to the DeNon Cemral Appraisal District (DCAD) during the momhs of May through July and throughout the rest of the year as appeals are requested. Since this is a very time consuming process during May through July, the individual who serves on the board should be available full time during these momhs. Members of the Appraisal Review Board serve two-year terms. Although the Appraisal Review Board members are nominated by taxing jurisdictions, they are appoimed by the DCAD Board of Directors by a majority vote. Nominations are due to the DCAD by November 7, 2003. The Board of Directors is scheduled to make their selection during their December meeting. Attached is a list of the current members and information from the DCAD concerning the qualifications, appointment and compensation of members of the Appraisal Review Board. There are twelve members whose terms will expire in December 2003. They include Pearl Ford (Roanoke), Patricia Muro (DeNon), Sandra Faust (DeNon), Louis Hall (Pilot Poim), Bill James (Corimh), Jack Weir (DeNon), David Herold (DeNon), Howard Creamer (Little Elm), William Sinclair (Shady Shores), and Patrick Carr (Trophy Club). Larry Wilson (DeNon) has served the maximum three terms and cannot be re-appoimed. Randal B. Wilson (Flower Mound) has expressed that he does not wish to serve another term. All others have expressed their desire to continue to serve. PRIOR ACTION/REVIEW (Council, Boards, Commissions) None FISCAL INFORMATION There is no fiscal impact to the City. EXHIBITS Appraisal Review Board Information 2003 Appraisal Review Board Members List Resolution Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations APPRAISAL REVIEW BOARD Qualification, Appointment and Compensation Who Can Serve? To serve on the ARB, you must have lived in the appraisal district for at least two years before taking office. You don't need any special qualifications, but you may be ineligible to serve on the appraisal review board if the person is a member of the board of directors, an officer, or employee of the appraisal district, an employee of the comptroller, or a member of the governing body, officer, or employee of a taxing unit. In county of more than 100,000, a person is ineligible if the person: 1. Has served all or part of three previous terms. 2. Is a former member of the board of directors, officer, or employee of the appraisal district. 3. If the person served as a member of the governing body or officer of a taxing unit for which the appraisal district appraises property, until the 4th anniversary of the date the person ceased to be a member or officer 4. Has ever appeared before the ARB for compensation. You also may not serve as an ARB member if you are closely related to a person who operates for compensation as a tax agent or is in the business of appraising property for property tax purposes in the appraisal district. Relatives barred are those within the second degree of consanguinity or affinity. If you knowingly violate this provision, you commit a class B misdemeanor. This provision took effect September 1, 1989, and applies only to ARB members serving terms that began after that date. The law also bars from ARB service members who contract with the appraisal district or with a taxing unit in the appraisal district. The bar applies if the member or a business entity in which the member has a substantial interest contracts with the appraisal district or a taxing unit that participates in the appraisal district. Likewise, the same taxing units and the appraisal district are each prohibited from contracting with an ARB member or a business entity in which an ARB member has a substantial interest. Substantial interest is defined as either: 1. Combined ownership by the member or the member's spouse of at least 10 percent of the voting stock or shares of the business. 2. Service by the member or the member's spouse as a partner, limited partner or officer in the business entity. You may also not serve if you hold some other paid public office. The Texas Constitution does not allow a person to hold more than one paid public office. S. B. 1017 requires the Comptroller to approve curricula, provide materials and supervise a course for training ARB members. The Comptroller shall issue certificates indicating course completion. All ARB members must complete the course or may not participate in ARB heatings. ARB Terms and Size Members serve two-year staggered terms; approximately half the member's terms expire each year. Terms begin January 1. The appraisal district directors appoint ARB members by a majority vote and record their decision in a resolution. ARB Compensation The ARB receives a $50.00 minimum for a half day and a maximum pay of $150.00 per day. ARB Meetings ARB regular meetings are the third Wednesday of each month at 9:00 A.M. These monthly meetings are approximately six to eight hours long. ARB reappraisal heatings will start on a daily basis, as needed, from late May until the appraisal roll is approved usually in late July. Meetings will normally be from 9:00 A.M. to 5:00 P.M. In October reappraisal heatings will start on the third Wednesday and usually continue for about a week from 9:00 A.M. to 5:00 P.M. Effective January 1, 1998, ARB's must provide heating times in the evening and on a Saturday or Sunday. Currently the Board meets two nights a week during the summer months until 8:00 P.M. Denton Central Appraisal District 3911 Morse Street, P O Box 2816 Denton, Texas 76202-2816 (940) 349-3800 2003 DCAD APPRAISAL REVIEW BOARD Original Term - June 2000 CHARLES OSBURN 10842 Osbum Rd. Pilot Point, TX 76258 940-365-2235 Original Term- January 2001 JOHN SOLBERG 2244 Stonegate Denton, TX 76205 940-387-3089 Original Term - January 1998 LARRY T. WILSON 205 Old Alton Dr. Denton, TX 76205 940-243-5642 Original Term - January 2000 PEARL FORD P. O. BOX 381 Roanoke, TX 76262 817-430-3100 Original Term - January 1999 W. GARLAND THORNTON, JR. 2513 Shenandoah Trail Denton, TX 76210 940-382-7804 940-458-7404 Original Term - April 1999 NEAL SCHEITEL 4478 Wildcat Rd. Aubrey, TX 76227 940-440-9570 Original Term - August 2000 ROBBIE J. GOBER 734 Wilson Street Denton, TX 76205 940-384-1002 Term Expires 12/31/2004 Term Expires 12/31/2004 Term Expires 12/31/2003 Term Expires 12/31/2003 Term Expires 12/31/2004 Term Expires 12/31/2004 Term Expires 12/31/2004 Original Term - January 2002 PATRICIA H. MURO 2000 Southridge Denton, TX 76205 940-382-0949 Original Term - April 2001 JAMES M. DEAR 5122 - FM 2931 Aubrey, TX 76227 940-365-9596 Original Term - January 2002 SANDRA FAUST 912 Ellison Park Circle Denton, TX 76205 940-384-9999 Original Term - January 2002 LOUIS N. HALL 717 E. Roewe Pilot Point, TX 76258 940-686-0062 Original Term - January 2002 BILL JAMES 3601 Derby Run Corinth, TX 76210 940-321-1117 Original Term - January 2002 JACK WEIR 1212 Vista Verde Denton, TX 76210 940-484-8302 Original Term - February 2002 DAVID HEROLD P. O. Box 2816 Denton, TX 76208 940-686-8007 Original Term - January 2003 PATRICIA STEELE 3507 Buckingham Corinth, TX 76210 940-498-9406 Term Expires 12/31/2003 Term Expires 12/31/2004 Term Expires 12/31/2003 Term Expires 12/31/2003 Term Expires 12/31/2003 Term Expires 12/31/2003 Term Expires 12/31/2003 Term Expires 12/31/2004 Original Term - January 2003 SHIRLEY HAISLER 1200 Cowling Rd. Sanger, TX 76266 940-458-3678 Original Term - January 2003 HOWARD CREAMER P. O. Box 289 Little Elm, TX 75068 972-292-2212 Original Term - January 2003 WILLIAM SINCLAIR No 52. Hidden Valley Rd. Shady Shores, TX 76208 940-321-3686 Original Term - January 2003 RANDAL B. WILSON 3005 Oak Meadow Drive Flower Mound, TX 75028 972-814-7900 Original Term - January 2003 PATRICK CARR, JR. 1116 Trophy Club Dr. Trophy Club, TX 76262 817-491-1153 Original Term - January 2003 HURL SCRUGGS, JR. 712 Knollridge Dr. Lewisville, TX 75077 972-221-4323 Original Term - January 2003 BETTY MCCRARY 1474 College Parkway Lewisville, TX 75077 972-221-1965 Original Term - January 2003 FRED M. WILLIAMS 2704 Devonshire Dr. Carrollton, TX 75007 972-245-5060 Term Expires 12/31/2004 Term Expires 12/31/2003 Term Expires 12/31/2003 Term Expires 12/31/2003 Term Expires 12/31/2003 Term Expires 12/31/2004 Term Expires 12/31/2004 Term Expires 121/31/2004 S:Our Documalt s Resolutions 03 Appraisal Rex iew Board doc RESOLUTION NO. A RESOLUTION NOMINATING MEMBERS TO THE APPRAISAL REVIEW BOARD OF THE DENTON CENTRAL APPRAISAL DISTRICT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the term of office for various Appraisal Review Board members of the Denton Central Appraisal District will expire on December 31, 2003; and WHEREAS, the City of Denton, Texas wishes to nominate members to said Board; NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES: SECTION 1. That the City of Denton, Texas, hereby nominates and as members to the Appraisal Review Board of the Denton Central Appraisal District. SECTION 2. That this resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __day of _,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET November 4, 2003 Materials Management Kathy DuBose, Fiscal and Municipal Services Questions concerning this acquisition may be directed to Charles Fiedler 349-8948 SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding a public works contract for the construction of the Eastern Pecan Basin Sanitary Sewer Replacements and Liners; providing for the expenditure of funds therefore; and providing an effective date (Bid 3088-Eastern Pecan Basin Sanitary Sewer Replacements and Liners awarded to PATCO Utilities, inc., in an amount not to exceed $1,342,953.25). BID INFORMATION The Eastern Pecan Basin Sanitary Sewer Replacements and Liners project consists of open cut, lining and pipe enlargement of approximately 13,341 linear feet of sanitary sewer lines ranging in diameter from 6-inch to 27-inch. Also, approximately 64 existing manholes will be rehabilitated with an interior liner system as part of this project. These sewer lines and manholes were identified for rehabilitation in a study of the system mandated by the current USEPA Administrative Order. Bids for the construction phase of this project were received on October 16, 2003. There were four bidders, with bids ranging from a low base bid of $1,099,060.00 to a high base bid of $1,236,334.00. The engineer's estimate for the project was $1,300,000 for the base bid and $1,550,000 for the base bid plus all alternates. PATCO Utilities, inc. meets all the requirements for the qualified low bidder for this project. There were three bid items included as additive alternates to rehabilitate line segments and manholes as part of this project. All alternate items were originally identified as needing rehabilitation by the USEPA mandated study mentioned above. PATCO Utilities, inc. has offered to install all three of the additive alternates for a total amount of $243,893.25. Staff is recommending that the alternative bid items be included in the bid award, resulting in a total contract amount of $1,342,953.25. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) The Public Utility Board will consider this item at its November 3 meeting. Agenda Information sheet November 4, 2003 Page 2 RECOMMENDATION We recommend award of this bid to PATCO Utilities, Inc. in an amount not to exceed $1,342,953.24. PRINCIPAL PLACE OF BUSINESS PATCO Utilities, Inc. Grand Prairie, TX STAFF COST ESTIMATE The engineer's estimate for this project was $1,550,000. ESTIMATED SCHEDULE OF PROJECT This project is scheduled to begin December 1, 2003 with an estimated completion date of May 1, 2004. FISCAL INFORMATION This project will be funded from project number 640038539.1360.40100. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Tabulation Sheet 1-AlS-Bid 3088 BID # 3088 Attachment 1 DATE: 10/16/03 EASTERN PECAN BASIN SANITARY SEWER REPLACEMENTS & LINERS Mid-Continent Hall Albert Dickerson PATCO Utilities, Inc. Utilities, Inc. Construction Co. Construction ~i~ci~,~ ~,ac~ o~ ~i~.. ! ! 1 SUBTOTAL BASE BID $1,218,988.00 $1,176,025.00 $1,099,060.00 $1,236,334.00 SUBTOTAL ALTERNATE ~ 2 $59,780.00 $46,858.00 $53,603.00 $60,630.00 TOTAL - BASE BID PLUS ALTERNATES ~ $1,526,040.00 $1,491,433.20 $1,342,953.25 $1,569,164.00 3 ADDenDUM 1 Y~S Y~S Y~S Y~S ADDenDUM 2 Y~S Y~S Y~S Y~S ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF THE EASTERN PECAN BASIN SANITARY SEWER REPLACEMENTS AND LINERS; PROViDiNG FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROViDiNG AN EFFECTIVE DATE (BID 3088-EASTERN PECAN BASIN SANITARY SEWER REPLACEMENTS AND LINERS AWARDED TO PATCO UTILITIES, iNC., IN AMOUNT NOT TO EXCEED $1,342,953.25). WHEREAS, the City has solicited, received and tabulated competitive bids for the construction of public works or improvements in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and recommended that the herein described bids are the lowest responsible bids for the construction of the public works or improvements described in the bid invitation, bid proposals and plans and specifications therein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the following competitive bids for the construction of public works or improvements, as described in the "Bid invitations", "Bid Proposals" or plans and specifications on file in the Office of the City's Purchasing Agent filed according to the bid number assigned hereto, are hereby accepted and approved as being the lowest responsible bids: BID NUMBER CONTRACTOR AMOUNT 3088 PATCO Utilities, Inc. $1,342,953.25 SECTION 2. That the acceptance and approval of the above competitive bids shall not constitute a contract between the City and the person submitting the bid for construction of such public works or improvements herein accepted and approved, until such person shall comply with all requirements specified in the Notice to Bidders including the timely execution of a written contract and furnishing of performance and payment bonds, and insurance certificate after notification of the award of the bid. SECTION 3. That the City Manager is hereby authorized to execute all necessary written contracts for the performance of the construction of the public works or improvements in accordance with the bids accepted and approved herein, provided that such contracts are made in accordance with the Notice to Bidders and Bid Proposals, and documents relating thereto specifying the terms, conditions, plans and specifications, standards, quantities and specified sums contained therein. SECTION 4. That upon acceptance and approval of the above competitive bids and the execution of contracts for the public works and improvements as authorized herein, the City Council hereby authorizes the expenditure of funds in the manner and in the amount as specified in such approved bids and authorized contracts executed pursuant thereto. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of .,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-Bid 3088 AGENDA INFORMATION SHEET AGENDA DATE: November 4, 2003 DEPARTMENT: CM/DCM/ACM: Airport and Transit Operations Jon Fortune, Assistam City Manager SUBJECT Consider adoption of an ordinance authorizing the Mayor to execute an imerlocal Agreemem between the City of DeNon and Texas Woman's University to provide for motor carrier passenger service for TWU studems, staff and faculty; and providing for an effective date. BACKGROUND On August 20th 2002 the City of Denton entered into an interlocal agreement with Texas Woman's University (TWU) to provide public motor carrier transportation services to TWU studems staff and faculty. This agreemem, Ordinance 2002-253, was an extension of a one-year pilot program started in 2001. The proposed ordinance presemed in this agenda item is an amendmem to the 2002-2003 agreemem that provides for a single fixed fee of $7,200 for transit services. This fee is based on the number of trips provided to TWU Studem, Staff and faculty during the term of the 2002- 2003 agreemem. The basis for the fee is a 20% discoum of the base fare of $1.00 and based on the volume of rides generated; other transit authorities offer similar agreements to corporations and large employers purchasing group fares. Discoum rates are also provided to riders using LINK' s monthly pass. The amendmem also provides language for a prorated fee should the agreemem be prematurely terminated. The 2002-2003 agreement was silent on this issue. The agreement for this year will be retroactive to September 1, 2003 and will continue through August 31, 2004 to coincide with TWU's school year. PRIOR ACTION/REVIEW Staff recommends approval of the attached amendment to the 2003 interlocal agreement between the City of DeNon and TWU to provide for motor carrier service for TWU studems, staff, and faculty on the LINK. ESTIMATED SCHEDULE OF PROJECT The term of this agreemem will be for twelve (12) months retroactive to September 1, 2003 through August 31, 2004. FISCAL INFORMATION This agreement will generate a total of $7,200 for transit services that will be provided to TWU during the term of the agreement. EXHIBITS Ordinance Interlocal Agreement Respectfully submitted: Mark Nelson, Director Airport and Transit Operations ORDINANCE NO. AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN INTERLOCAL AGREEMENT BETWEEN THE CITY OF DENTON AND TEXAS WOMAN'S UNIVERSITY TO PROVIDE FOR MOTOR CARRIER PASSENGER SERVICE FOR TWU STUDENTS, STAFF AND FACULTY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Texas Woman's University ("TWU") and the City have entered into an Inteflocal Agreement effective September 1, 2002 to provide to TWU's students, staff and faculty motor carder passenger service based on an annual fee (the Ex~stmg Agreement '); and WHEREAS, the City and TWU desire to amend and extend the Existing Agreement for another year; and WHEREAS, the City Council finds that such service is in the public interest; NOW, THEREFOR; THE COUNCIl. OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The Mayor, or in her absence the Mayor ProTem, is hereby authorized to execute an lnterlocal Agreement between the City of Denton and TWU to extend the Existing Agreement to provide for motor carder passenger service for TWU students, staff, and faculty, in substantially the form of the copy of the agreement attached hereto and incorporated by reference herein. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2003. ATTEST: JENNIFER WALTERS, CiTY SECRETARY EULIN-E BROCK, MAYOR BY: APPROVED AS TO.J.L~GAL/FORM: HERBER~.~.~Y ATTORNEY BY: THIS AGREEMENT is made and entered into to be effective as of the 1st day of September, 2003, by and between the CITY OF DENTON, a Te0~as municipal corporation, hereinafter referred to as CITY and TEXAS WOMAN'S UNIVERS1TGY, a Texas State University, hereinafter referred to as TWU. WHEREAS, the CITY provides mass transportation passenger motor carrier service within the city limits of the CITY under the name "LINK"; and WHEREAS, the CITY and TWU entered into that certain, lnterlocal Agreement dated effective September 1, 2002 to provide for off-campus passenger motor cartier service for its students, staff and faculty (the "Existing Agreement"); and WHEREAS, the C1TY and TWU desire to amend and extend the Existing Agreement for a second year under the terms and conditions comained herein; and WHEREAS, all payments for services under this agreement are made from current . revenues of the paying party and fairly compensate the performing party for the services provided for herein; and WHEREAS, this Imerlocal Agreement is in the public interest; NOW, THEREFORE, CITY and TWU, in consideration of the mutual covenants hereinafter expressed, agree as follows: .AR._.TICLF. ONE 1.0 This agreement amends and extends the Existing Agreement to be effective retroactively to September 1, 2003 through August 31, 2004 (the "Second Year"). The fee for tho bus service for the Second Year will remain the same, being $7,200.00. The Fee will be paid to the City no later than 30 days after TWU has been notified in writing that this agreement has been approved by the City Council. Should a termination of this agreement occur under Article Two of the Existing Agreement, then TWU will be entitled to a prorated reimbursement for the portion oftbe agreement unfulfilled. 1.2 All other terms of the Existing Agreement not amended by this agreement shall remain in full force and effect. Signed to be effective the 1st day of September, 2003. CITY OF DENTON, TEXAS BY: ATTEST: JENNIFER WALTERS, CITY SECRETARY Euline Brock, Brock BY: APPROVED AS TO FORM: TEXAS WOMAN'S UNIVERSITY Vice President for Finance & Administration